Attorneys have filed several documents in recent months regarding U.S. Border Patrol agent Nicholas Corbett’s civil suit that is pending in U.S. District Court in Tucson.
A civil suit was filed against Corbett on behalf of the victim’s parents, Renato Ariza Dominguez and Maria Clara Leonor Rivera Cordero, on Dec. 10, 2008. Plaintiffs filed a second suit on Aug. 24, under the federal tort claims act, naming defendants as the United States and some federal agencies and agents.
The two cases were consolidated into one case on Sept. 11. Then on Oct. 30, attorneys representing the United States filed a motion to dismiss the case.
The plaintiffs then filed two amended complaints on Nov. 24.
The first amended complaint claims wrongful death under the federal tort claims act. It lists the United States as the defendant and alleges claims of battery and negligence, as well as negligent hiring, retention and supervision.
It claims Corbett used excessive deadly force in shooting and killing the victim, who was defenseless and was nonthreatening. It also claims Corbett negligently breached his duty of due care when he placed himself in a position to discharge a firearm at the victim.
And it claims government officials had a duty to follow appropriate procedures, such as making sure Corbett did not take part in inappropriate activities that reflected a propensity for violence or for racial or ethnic hatred.
The second amended complaint, which names Corbett as the defendant, cites a violation of the victim’s civil rights under several constitutional amendments and a violation of his civil rights for the Border Patrol’s supervisory responsibility.
“The custom and practice by these agents is to shoot any persons encountered in the general vicinity of the United States border, without regard to whether the agents are in any danger or whether the suspect individuals are armed or engaged in any illegal activity. The practical effect of this custom and practice is to shoot first and ask questions later if anyone survives,” the complaint states.
It alleges that Corbett and other unknown agents acted with intent to deprive the victim of freedom from unreasonable seizures in the form of use of excessive force, freedom from deprivation of liberty without due process of law, freedom from punishment prior to conviction for any crime, and equal protection of the laws.
It also alleges that unknown Border Patrol supervisory personnel encouraged the use of excessive force and were indifferent to the violation of constitutional rights of people in the victim’s situation.
It also states that unknown personnel possessed knowledge that Corbett engaged in aggressive altercations, making him unsuitable to be employed as a Border Patrol agent.
What’s being sought?
The case against Corbett and the United States seeks compensatory general damages such as pain and suffering, special damages for the loss of economic support and funeral and burial expenses, and exemplary damages for acts done recklessly or with deliberate indifference.
On Dec. 8, attorneys for the U.S. filed a motion to dismiss and strike portions of the amended complaints. Meanwhile, Corbett’s attorney, Sean Chapman, filed a notice to join in on that motion.
Regarding the negligence argument in the federal tort claims act complaint, the defendants point out that some of the contentions raised by the plaintiffs are “meritless as evidenced by witness testimony and existing physical evidence.”
“The complaint alleges an intentional execution style killing, not an accidental shooting, or a shooting caused by misapprehension of the situation at hand,” the motion adds.
The defendants argue the claim of negligent hiring, retention and supervision should be dismissed because the United States has not waived its sovereign immunity for constitutional tort claims.
“A suit against the United States can only be entertained when Congress has specifically waived the United States’ immunity,” the motion states.
The defendants point out a suit against the United States under the Federal Torts Claims Act is the exclusive remedy for tort claims arising from the actions of any government employee while acting within the scope of employment. The United States is liable only “in the same manner and to the same extent as a private individual under like circumstance.”
In response to the claim of violation of civil rights for supervisory responsibility, the defendants state that the doctrine of sovereign immunity precludes this type of case against officers in their official capacity, a federal agency or the United States.
“Although the plaintiffs allege that this claim is directed toward the supervisory Border Patrol agents in their individual capacities, the allegations make clear that the intent is to sue them for alleged acts performed in their official capacities,” the motion states.
The defendants also request the court to strike portions of the amended complaints regarding the alleged policies, customs and practices because they are “impertinent and scandalous” and create the potential for unfair prejudice against the United States.
Corbett was charged in a criminal case for the death of Dominguez Rivera and he went on trial twice in 2008, but the charges were dismissed after the trials resulted in hung juries. His defense claimed he acted in self-defense because the victim was trying to smash his head with a rock.