Federal Government Not Liable for Border Agent Who Assaulted, Terrorized Migrants, Appeals Court Says

The federal government cannot be held liable for the actions of a Border Patrol agent who abused, sexually assaulted and buried alive migrants who had unlawfully crossed into Texas from Mexico in 2014, a three-judge panel concluded Tuesday.

According to the decision from the Court of Appeals for the Fifth Circuit, Esteban Manzanares, a Border Patrol agent who took his own life as law enforcement officers raided his apartment after the assaults, was not acting within his official capacity when he attacked the three migrants—a mother, her 15-year-old daughter and a 14-year-old family friend. Manzanares, who was 32 at the time, had attempted to bury the daughter alive and brought the family's friend back to his apartment where he sexually assaulted her.

After first apprehending the trio of Honduran migrants sitting on the side of a dirt road that runs along the Rio Grande on March 12, 2014, Manzanares ordered them into his official vehicle and began to drive them around, eventually applying restraints.

After a brief stop at a Border Patrol station—the migrants were not let out of the vehicle—Manzanares proceeded to take them to additional locations, at one point taping their mouths and wrists. Eventually, he drove them to a gated compound which is where the abuse is said to have begun.

"He struck her, kicked her, and strangled and choked her, and twisted her neck," the original lawsuit recalls about his abuse of the mother. "At some point during the assault and battery, she became temporarily unconscious or significantly disoriented by Manzanares' strangling and choking her."

Border Patrol
This file photo shows a U.S. Border Patrol patch on a border agent's uniform in McAllen, Texas, on January 15, 2019. An appellate court ruled on Tuesday that the federal government was not legally liable for an agent's gruesome conduct that terrorized three migrants in 2014. SUZANNE CORDEIRO/AFP/Getty

The migrants filed a lawsuit in 2015 under the Federal Tort Claims Act (FTCA), a law that allows for the U.S. government to be held liable for certain claims of wrongdoing, but has many caveats. A pair of earlier decisions from a district court in McAllen, Texas, determined that Manzanares could not be held liable under the act. The ruling from the Court of Appeals for the Fifth Circuit essentially upheld those decisions.

"The decision is certainly consistent with what my understanding of the act is," Paul Figley, a professor of legal rhetoric at American University Washington School of Law, told Newsweek. "The United States is liable for the negligence or wrongful act of a federal employee only when he or she is acting within the scope of their employment."

Figley said that while the conduct may be heinous, the FTCA was constructed so specifically to hold the federal government liable for claims arising from official misconduct or connected to official duties. Claims such as the ones asserted in the Manzanares case can fail because the plaintiffs, who were not named in the suit, were unable to show under Texas law that the abuse perpetrated was connected to the performance of Manzanares' employment.

These types of cases, however, often do succeed, but "they do so in states that read the scope of employment more broadly," Figley explained. In Texas, that is not the case.

The Texas Supreme Court has held that if an employee "deviates from the performance of his duties for his own purposes, the employer is not responsible for what occurs during that deviation."

The lawsuit also alleged that Manzanares' Border Patrol supervisors had a duty to oversee him in a way that would have prevented the tragedy. However, the appellate court agreed with the district court when it noted that hiring and supervisory decisions are discretionary functions, an exception to the FTCA.

"The federal government is held liable" for the actions of its employees, Figley said, "when there are mandatory rules about what should be done."

The appellate court noted that the plaintiffs had raised the prospect of unlawful or negligent acts occurring while Manzanares had briefly detained the three migrants at a duty station, which would undoubtedly be within his scope of employment, but that their suit failed to formally incorporate these observations into their claims. Because of this, the three-judge panel ruled, the plaintiffs, now lawfully residing in Virginia, "waived" those arguments "by failing to assert such claims before the district court."