Jaycee Dugard v. United States

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JAYCEE DUGARD, individually, No. 13-17596

and as Guardian Ad Litem, for

her Minor Child, D.C. No.

Plaintiff-Appellant, 3:11-cv-04718-CTB

v.

OPINION

UNITED STATES OF AMERICA,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of California

Carlos T. Bea, Circuit Judge, Presiding

Argued and Submitted January 12, 2016

Pasadena, California

Filed August 26, 2016

Before: Richard R. Clifton and John B. Owens, Circuit

Judges, and William E. Smith,* Chief District Judge.

Opinion by Judge Owens;

Dissent by Judge Smith

*

The Honorable William E. Smith, United States Chief District Judge

for the District of Rhode Island, sitting by designation.

2 DUGARD V. UNITED STATES

SUMMARY**

Federal Tort Claims Act / California Law

The panel affirmed the district court’s judgment in favor

of the United States, and agreed with the district court that the

Federal Tort Claims Act (“FTCA”) and its interaction with

California law precluded Jaycee Dugard’s recovery for the

incompetence of the parole office that was supposedly

supervising federal parolee Phillip Garrido, who committed

unspeakable crimes against Dugard for 18 years.

The FTCA, a limited waiver of the United States’

sovereign immunity, provides that the United States shall be

liable “in the same manner and to the same extent as a private

individual under like circumstances” under applicable state

law. 28 U.S.C. § 2674.

The panel held that in locating an analogous private party

under the FTCA, it was appropriate to look to cases involving

public entities or public immunities, so long as the policies

underlying them were applicable to private parties in the state

as well. The panel further held that because the extent of the

federal government’s liability under the FTCA was described

with reference to state law, when the state has described a

public policy for limiting liability for private parties, the

government’s liability under the FTCA would shrink as well.

The panel concluded that limiting liability here, for officials

involved in the release and rehabilitation of criminal

offenders, was consistent with California’s policies

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

DUGARD V. UNITED STATES 3

encouraging criminal rehabilitation for public and private

parties alike. The panel concluded that because a private

individual in like circumstances would not be liable under

California law, the United States cannot be held liable under

the FTCA for the conduct of the parole officer here.

Chief District Judge Smith dissented, and would reverse

the summary judgment in favor of the United States. Judge

Smith wrote that the majority’s decision turned on its

understanding that the most analogous California cases for

the purposes of determining FTCA liability were those

involving private rehabilitation centers, and in his view, this

was an incorrect application of the FTCA and misinterpreted

the body of California tort law.

COUNSEL

Jonathan P. Steinsapir (argued), Dale F. Kinsella, Amber

Holley Melius, and David W. Swift, Kinsella Weitzman Iser

Kump & Aldisert, LLP, Santa Monica, California, for

Plaintiff-Appellant.

Patrick G. Nemeroff (argued) and Mark B. Stern, Attorneys,

Appellate Staff, Civil Division, Department of Justice,

Washington, D.C., for Defendant-Appellee.

4 DUGARD V. UNITED STATES

OPINION

OWENS, Circuit Judge:

Phillip Garrido, a parolee with a terrible history of drug-

fueled sexual violence, committed unspeakable crimes

against Jaycee Dugard for 18 years. State and federal

authorities missed many opportunities to stop these tragic

events. Ms. Dugard received a large cash settlement from the

State of California for its incompetence, and seeks similar

compensation from the Federal Government.

While our hearts are with Ms. Dugard, the law is not. We

agree with the district court that the Federal Tort Claims Act

and its interaction with California law precludes her recovery

for the incompetence of the parole office that was supposedly

supervising Garrido. We have jurisdiction under 28 U.S.C.

§ 1291, and we affirm.

I. FACTS AND PROCEDURAL HISTORY

A. Garrido’s Criminal History, Convictions, and

Kidnapping of Dugard

The sickening circumstances of this case have been

detailed many times in various forms, so we limit our

discussion to the essential facts.

Garrido’s predatory pattern of sexual abuse, often in

conjunction with drug use, began in the 1970s. In 1972, he

was arrested, though not convicted, for drugging and raping

a juvenile. He was using LSD and marijuana during this

time. In 1976, Garrido was charged with kidnapping and

raping a woman in South Lake Tahoe, California.

DUGARD V. UNITED STATES 5

That same year, Garrido kidnapped a second woman in

South Lake Tahoe, California, and drove her into Nevada,

where he hid her in a shed and raped her. He was charged in

federal court with kidnapping, and was convicted and

sentenced to 50 years imprisonment in 1977. During his trial,

Garrido testified and explained that, while under the influence

of drugs, he had uncontrollable deviant and violent sexual

compulsions. In 1988, he was released on federal parole. His

federal parole was set to expire in March 1999, after which

the State of California would take over supervision.1

Due to his history of sexual violence while intoxicated,

Garrido’s federal parole terms required him to undergo

regular drug testing and counseling. They also banned drug

use and excessive alcohol consumption. Parole officers

recognized that “the potential for causing great physical harm

is present if [Garrido] becomes unstable as a result of drug

use.” Medical professionals described him as “a time bomb”

and “like a pot boiling with no outlet valve.” Despite these

prophetic warnings and mandatory reporting obligations, in

the 30 months after his release on parole, officers did not

report approximately 70 documented drug-related parole

violations, including methamphetamine abuse, to the Parole

Commission. These violations included Garrido drinking

1

The Sentencing Reform Act of 1984 abolished parole for all crimes

committed after November 1, 1987. See Marsh v. Taylor, 925 F.2d 1131,

1132 (9th Cir. 1991); see also Fassler v. U.S. Parole Comm’n, 964 F.2d

877, 878 (9th Cir. 1991); Farese v. Story, 823 F.2d 975, 976–77 (6th Cir.

1987) (per curiam). Prior to that, the Parole Commission determined if

and when a prisoner could be released on parole, and then ultimately

decided if a parolees’ performance outside warranted a return to prison.

Post-incarceration supervision of federal offenders now takes the form of

“supervised release,” with district judges ultimately monitoring the

performance of offenders with the assistance of federal probation officers.

6 DUGARD V. UNITED STATES

excessive amounts of water to dilute urine samples used in

drug tests.

On June 10, 1991, while Garrido was on federal parole,

Garrido and his wife kidnapped Dugard near her home in

South Lake Tahoe.2 She was only 11. For the next 18 years,

Garrido held Dugard captive, sometimes in chains, in a shed

that he built in his backyard. Often on methamphetamine

binges, he repeatedly raped and drugged her. Dugard gave

birth to two of his children without any medical treatment or

prenatal care. Dugard and her children remained captive until

their discovery on August 26, 2009.

B. Proceedings Before the District Court3

In September 2011, Dugard filed a complaint against the

United States under the Federal Tort Claims Act (FTCA), on

her own behalf and as guardian for her two minor children

(A. Dugard and G. Dugard).4 In December 2012, Dugard

filed a Second Amended Complaint. In it, she alleged that

the government negligently performed numerous mandatory

duties when supervising Garrido, including duties to report

parole violations in the years prior to her kidnapping. But for

the government’s negligence, she alleged, Garrido’s parole

2

Garrido had also been prohibited from travel to Lake Tahoe as a

condition of his parole.

3

The Honorable Carlos T. Bea, United States Circuit Judge for the

Ninth Circuit, sat by designation as the district court judge, pursuant to

28 U.S.C. § 291(b).

4

Only Jaycee and A. Dugard remain as plaintiffs (we will refer to them

collectively as “Dugard”). G. Dugard voluntarily dismissed her claims.

DUGARD V. UNITED STATES 7

would have been revoked and he would not have been able to

kidnap her in 1991.

Following discovery, the government filed a motion to

dismiss and for summary judgment. The government argued

that the FTCA bars Dugard’s claims because there is no

liability for private individuals in like circumstances under

California law, as required to sustain an FTCA claim under

28 U.S.C. § 2674.5

The district court granted the motion, finding that the

proper state-law analogy to the government officials in this

case was to private parties providing criminal rehabilitative

services. California law holds that such private parties “do

not owe a duty of reasonable care to control others to the

entire world or to the general public.” Instead, “such duty of

reasonable care to control is owed by such rehabilitative

service providers only to a very small group of specifically

identifiable and foreseeable victims.” Since Dugard did not

allege that she was a specifically identifiable victim, the

“United States owed no duty of reasonable care to Plaintiffs

in this case.”

5

The government also argued that there were two additional bases on

which it would prevail: (1) that the discretionary function exception bars

Dugard’s claims; and (2) that the parole officer’s failure to follow

mandatory duties did not proximately cause plaintiffs’ injuries. Because

we agree with the district court that the government faces no liability

under the FTCA, we need not address the discretionary function exception

or proximate cause issues here.

8 DUGARD V. UNITED STATES

II. DISCUSSION

A. Standard of Review

We review de novo a district court’s dismissal of an

FTCA claim because a private person under like

circumstances would not be liable under state law. Xue Lu v.

Powell, 621 F.3d 944, 947 (9th Cir. 2010).

B. The FTCA Forecloses Federal Liability In This

Case

The FTCA, a limited waiver of the United States’

sovereign immunity, provides that the United States shall be

liable “in the same manner and to the same extent as a private

individual under like circumstances” under applicable state

law. 28 U.S.C. § 2674; see also id. § 1346(b)(1). Although

the federal government “could never be exactly like a private

actor, a court’s job in applying the standard is to find the most

reasonable analogy.” LaBarge v. Mariposa Cty., 798 F.2d

364, 367 (9th Cir. 1986).

The most analogous cases to this situation involve the

liability of private criminal rehabilitation facilities. Under

California law, private companies that operate rehabilitation

programs do not owe a duty of care to the public at large for

the conduct of inmates or parolees under their supervision.

See Cardenas v. Eggleston Youth Ctr., 238 Cal. Rptr. 251,

252–53 (Ct. App. 1987) (holding that a private rehabilitation

facility owes no duty of care to “members of the community

in which it is located for the criminal conduct of its

residents”); Beauchene v. Synanon Found., Inc., 151 Cal.

Rptr. 796, 798–99 (Ct. App. 1979) (holding that a private

rehabilitation center owed no duty to the plaintiff to control

DUGARD V. UNITED STATES 9

the behavior of a convict who escaped the facility and shot

the plaintiff). Instead, the private facilities owe a duty only

to individuals that are foreseeable and specifically identifiable

victims of their wards’ conduct. See Vu v. Singer Co.,

706 F.2d 1027, 1029 (9th Cir. 1983) (discussing the duty to

warn under California law and concluding that it “clearly”

requires a “foreseeable and specifically identifiable” victim);

Rice v. Ctr. Point, Inc., 65 Cal. Rptr. 3d 312, 316 (Ct. App.

2007) (explaining that a duty exists only where the “injury is

foreseeable and the intended victim is identifiable”). This

rule is a result of California’s strong public policy to

encourage “innovative criminal offender release and

rehabilitation programs.” Beauchene, 151 Cal. Rptr. at 799.

As Dugard has not argued, and submits no facts to

suggest, that she was a specifically identifiable victim, she

would not have a viable claim against an analogous private

person under California law.

Dugard contends that Beauchene, Cardenas, Rice, and Vu

are inappropriate private person analogues because the duties

described therein originally arose out of a statutory immunity

granted only to public entities—Cal. Gov. Code Section

845.8.6 As she puts it, using these cases to locate the most

6

The relevant statutory provision states:

Neither a public entity nor a public employee is liable

for:

(a) Any injury resulting from determining whether to

parole or release a prisoner or from determining the

terms and conditions of his parole or release or from

determining whether to revoke his parole or release.

10 DUGARD V. UNITED STATES

analogous private parties “backdoor[s] inapplicable state

government immunities into the FTCA analysis.” As support,

she points to the Supreme Court’s instruction that the United

States’ liability under the FTCA may not be defined by

reference to the liability of state or local entities. See United

States v. Olson, 546 U.S. 43, 45 (2005) (rejecting argument

that the federal government’s liability should be compared to

the liability of state and local mine inspectors); Rayonier Inc.

v. United States, 352 U.S. 315, 318–19 (1957) (rejecting

argument that the federal government’s liability should be

determined by the liability of state and local firefighters);

Indian Towing Co. v. United States, 350 U.S. 61, 65 (1955)

(rejecting argument that the federal government’s liability

should be compared to the liability of a municipal

corporation).

In locating an analogous private party under the FTCA,

however, it is appropriate to look to cases involving public

entities or public immunities, so long as the policies

underlying them are applicable to private parties in the state

as well. See Xue Lu, 621 F.3d at 947 (“A public-entity case

. . . can offer some guidance, to the extent it illuminates

general principles of respondeat superior liability that apply

in California to public and private employers alike.”). The

public policy to limit the liability of institutions involved in

(b) Any injury caused by:

(1) An escaping or escaped prisoner;

(2) An escaping or escaped arrested person; or

(3) A person resisting arrest.

Cal. Gov. Code. § 845.8.

DUGARD V. UNITED STATES 11

criminal rehabilitative endeavors is one that California courts

have expressly chosen to expand beyond public officials and

apply to private parties involved in similar efforts. See

Beauchene, 151 Cal. Rptr. at 799 (explaining that, although

the defendant “concededly is not a ‘public entity or public

employee’ . . . the same public policy that moved the

Legislature to immunize Public release and rehabilitation

programs from liability to encourage such innovations in the

interests of criminal justice compels the conclusion that

[defendant’s] Private release and rehabilitation program owed

no legal duty to” the plaintiff (emphasis added)); see also Vu,

706 F.2d at 1029–30; Rice, 65 Cal. Rptr. 3d at 313; Cardenas,

238 Cal. Rptr. at 252–53. That application to private parties

takes this case out of the ambit of Olson, Rayonier, and

Indian Towing. Because the extent of the government’s

liability under the FTCA is described with reference to state

law, when the state has described a public policy for limiting

liability for private parties, we expect the government’s

liability under the FTCA will shrink as well. Cf. Anderson v.

United States, 55 F.3d 1379, 1381 (9th Cir. 1995) (refusing

to limit the liability of the government for the negligence of

the U.S. Forest Service because California courts have “not

described any such public policy in the area of firesetting and

fire control by private persons” that would limit liability).

Limiting liability here, for officials involved in the release

and rehabilitation of criminal offenders, is consistent with

California’s policies encouraging criminal rehabilitation for

public and private parties alike.

The dissent agrees that due to the “imperative policy

objective of encouraging innovative release and rehabilitation

programs for criminal offenders,” California courts have

limited the liability of private criminal rehabilitation centers.

Dissent at 28 (quoting Cardenas, 238 Cal. Rptr. at 253); see

12 DUGARD V. UNITED STATES

also Dissent at 19–20 (quoting Beauchene, 151 Cal. Rptr. at

799). We disagree only on whether that policy consideration

is applicable to the government actors here. We hold that it

is. The United States parole system dealt with “a wide range

of individuals with differing problems.” Probation Division,

Administrative Office of the United States Courts, The

Supervision Process, Publication 106, at 21 (1983).

Accordingly, like the criminal rehabilitative centers in

Beauchene, Cardenas, Rice, and Vu, it furthered many

different rehabilitative goals, including those “rang[ing] from

protecting the public from further crime to providing the

offender with needed education, vocational training, medical

care, and other correctional treatment.” Publication 106, at 1;

see Vu, 706 F.2d at 1028 (“vocational training, work

experience and educational programs”); Rice, 65 Cal. Rptr.

3d at 313 (drug rehabilitation program); Cardenas, 238 Cal.

Rptr. at 251 (youth group home facility); Beauchene, 151 Cal.

Rptr. at 797 (drug and alcohol rehabilitation). Imposition of

broader liability logically forces this range of goals to shift to

the former (protecting the public), and away from the latter

(education, vocational training, medical, and correctional

treatment). This force would disrupt the ability of probation

officers to develop a “knowledgeable, sensitive, and flexible

approach” suited to each offender, Publication 106, at 21,

thereby discouraging “innovative” rehabilitative efforts and

“encouraging the detention of prisoners in disregard of their

rights and society’s needs.” Beauchene, 151 Cal. Rptr. at

799. The public policy concerns that militate against

expansive liability for private criminal rehabilitation

programs are therefore directly applicable here.

The dissent instead would have us rely on a line of

California cases, particularly involving medical professionals,

which has held that a doctor or therapist has a duty to act

DUGARD V. UNITED STATES 13

reasonably to avoid injury to a third party where a patient

expresses an intent to harm or exhibits actions likely to cause

harm to a third party (which need not be a foreseeable and

specifically identifiable victim). See Bragg v. Valdez, 3 Cal.

Rptr. 3d 804, 810–11 (Ct. App. 2003) (holding that a

psychotherapist had a duty to the plaintiff not to discharge a

mentally ill patient because of his lack of insurance, where

patient killed plaintiff after discharge); Reisner v. Regents of

Univ. of Cal., 37 Cal. Rptr. 2d 518, 520 (Ct. App. 1995)

(holding that the doctor had a duty to the future sexual partner

of his teenage patient to warn the patient or “others likely to

apprise the [plaintiff] of the danger” that his patient had likely

been infected with HIV through a contaminated blood

transfusion); Myers v. Quesenberry, 193 Cal. Rptr. 733,

734–35 (Ct. App. 1983) (holding that a doctor had a duty to

a driver struck by his patient’s car to warn his patient that she

should not drive in an uncontrolled diabetic condition

complicated by a recently lost pregnancy). These cases rely

heavily on Tarasoff v. Regents of University of California,

551 P.2d 334 (Cal. 1976), a landmark case in which the

California Supreme Court held that, “[w]hen a therapist

determines . . . that his patient presents a serious danger of

violence to another, he incurs an obligation to use reasonable

care to protect the intended victim against such danger.” Id.

at 340.

The balance of policy considerations struck in those

cases—between the danger of assault or injury to the public

on the one hand, and treatment on the other hand—is struck

differently from the criminal rehabilitation context. Compare

Tarasoff, 551 P.2d at 346–47 (tipping in favor of public

safety over concerns related to confidentiality in treatment),

with Beauchene, 151 Cal. Rptr. at 798–99 (tipping in favor of

treatment and rehabilitation over public safety). “‘Duty’ is

14 DUGARD V. UNITED STATES

‘an expression of the sum total of those considerations of

policy which lead the law to say that the particular plaintiff is

entitled to protection’ against the defendant’s conduct.”

Beauchene, 151 Cal. Rptr. at 798 (quoting William L.

Prosser, Torts (4th ed. 1971)); see also Tarasoff, 551 P.2d at

342. The “sum total” of the considerations in the criminal

rehabilitation context is simply different from the calculus in

the cases on which the dissent would have us rely.

Because a private individual in like circumstances would

not be liable under California law, the United States cannot

be held liable under the FTCA for the conduct of the parole

officer here.

III. CONCLUSION

“Each member of the general public who chances to come

into contact with a parolee or probationer must risk that the

rehabilitative effort will fail.” Beauchene, 151 Cal. Rptr. at

799. Despite this increased danger, rehabilitation is an

endeavor the State of California values. Unless we adopt a

“throw away the key” approach to convicts, tragic crimes by

parolees and probationers inevitably will occur. No judge

wants to deny Dugard relief, but the FTCA, through the lens

of California law and its focus on rehabilitative efforts, does

not permit relief under the circumstances here.

AFFIRMED.

DUGARD V. UNITED STATES 15

SMITH, Chief District Judge, dissenting:

As the majority states, our hearts are with Ms. Dugard.

But for the incompetence of both California and federal

officials, the unspeakable crimes committed by Garrido

would never have occurred. Ms. Dugard has been

compensated by California; and in my view she should have

her day in court against the federal government as well. I

differ with the majority’s conclusion that the law does not

allow her this, and therefore I respectfully dissent.

The majority’s decision turns on its understanding that the

most analogous California cases for the purposes of

determining liability under the Federal Tort Claims Act

(“FTCA”) are those involving private rehabilitation centers.

In my view, this is an incorrect application of the FTCA and

misinterprets the body of California tort law of which the so-

called private rehabilitation center cases are an inextricable

part.

As the majority notes, the FTCA is a limited waiver of

sovereign immunity and provides that the United States is

liable for the negligent conduct of its employees “in the same

manner and to the same extent as a private individual under

like circumstances.” 28 U.S.C. § 2674; see also 28 U.S.C.

§ 1346(b). When determining whether a state actor is

analogous to a private entity, courts must “interpret these

words to mean what they say, namely, that the United States

waives sovereign immunity ‘under circumstances’ where

local law would make a ‘private person’ liable in tort.”

United States v. Olson, 546 U.S. 43, 44 (2005) (emphasis in

original) (quoting 28 U.S.C. § 1346(b)(1)). And, when

conducting this analysis, common sense dictates that “where

the government and its private party counterpart diverge in a

16 DUGARD V. UNITED STATES

significant respect, that circumstance must be taken into

account in determining what is the ‘most reasonable

analogy.’” Bush v. Eagle-Picher Indus., Inc., 927 F.2d 445,

452 (9th Cir. 1991) (quoting LaBarge v. Mariposa County,

798 F.2d 364, 367 (9th Cir. 1986)), abrogated on other

grounds by Scheuring v. Traylor Bros., 476 F.3d 781, 783

(9th Cir. 2007).

Here, on the surface, the “private rehabilitation center

cases” cited by the government and relied on by the majority1

provide a tempting analogue to the United States Parole

Commission because both deal broadly with individuals who

have broken the law and are in some stage of incarceration,

transition on parole/probation, or supervision; however, upon

closer examination, it is clear that these cases represent an

exception to the general rule under California tort law that,

where there is a special relationship, there is a duty to warn

or control that extends to foreseeable, but not readily

identifiable victims, provided that the action required would

be reasonable and not futile. As I explain in detail below, the

courts in the private rehabilitation center cases effectively

granted those facilities a form of immunity—essentially a

carbon copy of the immunity enjoyed by their public

counterparts—because they found that the public policy

considerations were so strong as to preclude a finding of a

duty. Irrespective of the majority’s suggestion to the

contrary, no such considerations are present in this case, and

there is virtually no policy reason to extend this narrow

judicially created immunity to U.S. Probation. Thus, it is the

1

See generally Vu v. Singer Co., 706 F.2d 1027 (9th Cir. 1983); Rice v.

Ctr. Point, Inc., 154 Cal. App. 4th 949 (Ct. App. 2007); Cardenas v.

Eggleston Youth Ctr., 193 Cal. App. 3d 331 (Ct. App. 1987); Beauchene

v. Synanon Found., Inc., 88 Cal. App. 3d 342 (Ct. App. 1979).

DUGARD V. UNITED STATES 17

general body of “special relationship” cases, rather than the

private rehabilitation center exception, that provides a closer

private party analogue, and summary judgment in favor of the

government is not warranted.

I. The Duty to Control or Warn under California

Law

In order to set the stage for the private person analogy

analysis on which this case turns, and to understand where I

part company with the majority, a chronological review of the

development of California tort law concerning the duty to

control and/or warn is necessary.

In 1966, in Poncher v. Brackett, 246 Cal. App. 2d 769

(Ct. App. 1966), a California Court of Appeals held that

grandparents had a duty to an unidentifiable victim of their

violent grandson. The court explained that:

The governing principle is expressed in

section 319 of the Restatement Second of

Torts as follows: “One who takes charge of a

third person whom he knows or should know

to be likely to cause bodily harm to others if

not controlled is under a duty to exercise

reasonable care to control the third person to

prevent him from doing such harm.”

Id. at 772–73. The court clarified that “[t]he ability to control

the child, rather than the relationship as such, is the basis for

a finding of liability on the part of a parent.” Id. at 772. That

is, it was not because it was a grandparent-child relationship

in particular that the duty attached, but rather because it was

18 DUGARD V. UNITED STATES

some type of “special relationship” in which there was an

ability to control.

In Johnson v. State, 69 Cal. 2d 782 (1968), the Supreme

Court of California found that state employees had a duty to

warn foster parents of the violent criminal history of a

teenage parolee placed in their care. In so holding, the Court

found that the state employees did not have immunity under

Government Code section 845.8, which provides that:

“Neither a public entity nor a public employee is liable for:

(a) Any injury resulting from determining whether to parole

or release a prisoner or from determining the terms and

conditions of his parole or release or from determining

whether to revoke his parole or release.” Id. at 795 n.9

(quoting Cal. Gov’t Code § 845.8); see id. at 795–96. In

giving this narrow application to section 845.8, the court

reasoned that “[o]nce an official reaches the decision to

parole to a given family, however, the determination as to

whether to warn the foster parents of latent dangers facing

them presents no such reasons for immunity.” Id. at 795.

The court added that “[t]his analysis, allowing immunity for

basic policy decisions . . . but rejecting it for the ministerial

implementation of that basic policy, receives support from a

long line of cases in California and in federal courts,

interpreting similar ‘discretionary’ language in section 2680,

subdivision (a), of the Federal Tort Claims Act.” Id. at 796.

Eight years later, in the landmark case Tarasoff v. Regents

of University of California, 17 Cal. 3d 425 (1976), the

Supreme Court of California considered whether a therapist

had a duty to warn a person threatened by a patient,

notwithstanding the general confidentiality obligations of that

profession. There, the therapist had notified the police of a

threat made by the patient, but did not notify the specific

DUGARD V. UNITED STATES 19

person about whom the threat had been made—Tatiana

Tarasoff—or her parents. Id. at 430–31. The court held “that

defendant therapists cannot escape liability merely because

Tatiana herself was not their patient” because the “special

relationship” between therapist and patient created a duty “to

use reasonable care to protect the intended victim against

such danger.” Id. at 431. What constitutes “reasonable care,”

the court said, depends on the circumstances: “it may call for

him to warn the intended victim or others likely to apprise the

victim of the danger, to notify the police, or to take whatever

other steps are reasonably necessary under the

circumstances.” Id. at 431 (emphasis added).

In 1979, Beauchene v. Synanon Foundation, Inc., 88 Cal.

App. 3d 342 (Ct. App. 1979), considered whether a private

rehabilitation facility could be held liable for the criminal

conduct of a convict who, after being released into the

defendant’s care, escaped and injured the plaintiff. The

plaintiff argued that the facility had been negligent in

screening the convict and that he should never have been let

into the program. Id. at 345. The issue in Beauchene was

whether the facility owed the plaintiff a duty based on the

“special relationship . . . between the defendant and the active

wrongdoer.” Id. at 347 (citing Tarasoff, 17 Cal. 3d at 435).

The court found no liability on public policy grounds. Id. at

348. The court first explained that under California law:

Principal policy considerations in deciding

whether a duty exists include “the

foreseeability of harm to the plaintiff, the

degree of certainty that the plaintiff suffered

injury, the closeness of the connection

between the defendant’s conduct and the

injury suffered, the moral blame attached to

20 DUGARD V. UNITED STATES

the defendant’s conduct, the policy of

preventing future harm, the extent of the

burden to the defendant and consequences to

the community of imposing a duty to exercise

care with resulting liability for breach, and the

availability, cost, and prevalence of insurance

for the risk involved.”

Id. at 347 (quoting Rowland v. Christian, 69 Cal. 2d 108, 113

(1968)). With that framework in mind, the court found that

“[a]lthough appellant’s injuries may be grievous, ‘[of]

paramount concern is the detrimental effect a finding of

liability would have on prisoner release and rehabilitation

programs. Were we to find a cause of action stated we would

in effect be encouraging the detention of prisoners in

disregard of their rights and society’s needs.’” Id. at 348

(emphasis added) (quoting Whitcombe v. County of Yolo,

73 Cal. App. 3d 698, 716 (1977)). In order to address the

paramount concern about the effect that liability would have

on the development of innovative prisoner release and

rehabilitation programs, the Court reached for the immunity

cloak provided by section 845.8 to public entities and

employees discussed and distinguished in Johnson, and

applied it to private facilities as if they were public:

Respondent concededly is not a “public entity

or public employee” within the meaning of

section 845.8. But the same public policy that

moved the Legislature to immunize public

release and rehabilitation programs from

liability—to encourage such innovations in

the interests of criminal justice—compels the

conclusion that respondent’s private release

and rehabilitation program owed no legal duty

DUGARD V. UNITED STATES 21

to this appellant. In light of the purpose

behind the governmental immunity, it would

be incongruous to hold that, while the state is

immune from liability for its decision to

assign Bentley to, and his unauthorized

departure from, the Synanon program, the

program itself owed appellant a duty not to

accept Bentley or to prevent his unauthorized

departure.

Id. (emphasis in original). Thus, the Beauchene decision was

driven by the court’s conclusion that “[t]o hold respondent

civilly liable would deter the development of innovative

criminal offender release and rehabilitation programs, in

contravention of public policy.” Id.

Following Beauchene, the Supreme Court of California

decided Thompson v. County of Alameda, 27 Cal. 3d 741

(1980). There, a juvenile offender who was released from a

county detention facility into the custody of his mother had

threatened that, if released, he would kill a young child in the

neighborhood. Id. at 746. The court held that the county of

Alameda had no duty to warn the neighborhood parents, the

police, or the child’s mother. Id. at 758. The court explained

that “[i]n deciding whether a duty to warn should be imposed,

we inquire under our Rowland v. Christian, [69 Cal. 2d 108,

113 (1968)], formulation concerning the probable beneficial

effect if such warnings were routinely and generally given.”

Id. at 755. The court then reasoned:

We are skeptical of any net benefit which

might flow from a duty to issue a generalized

warning of the probationary release of

offenders. In our view, the generalized

22 DUGARD V. UNITED STATES

warnings sought to be required here would do

little to increase the precautions of any

particular members of the public who already

may have become conditioned to locking their

doors, avoiding dark and deserted streets,

instructing their children to beware of

strangers and taking other precautions.

Id. The court distinguished Johnson and Tarasoff because in

those cases there was a specifically identifiable victim, and

therefore a warning would not have been futile or against

public policy:

[I]t is fair to conclude that warnings given

discreetly and to a limited number of persons

would have a greater effect because they

would alert those particular targeted

individuals of the possibility of a specific

threat pointed at them. In contrast, the

warnings sought by plaintiffs would of

necessity have to be made to a broad segment

of the population and would be only general

in nature. In addition to the likelihood that

such generalized warnings when frequently

repeated would do little as a practical matter

to stimulate increased safety measures, as we

develop below, such extensive warnings

would be difficult to give.

Id. at 755. The court acknowledged that, “[i]n those instances

in which the released offender poses a predictable threat of

harm to a named or readily identifiable victim or group of

victims who can be effectively warned of the danger, a

releasing agent may well be liable for failure to warn such

DUGARD V. UNITED STATES 23

persons.” Id. at 758 (emphasis added). With respect to the

police, the court noted that “warnings to the police as urged

by plaintiffs ordinarily would be of little benefit in preventing

assaults upon members of the public by dangerous persons

unless we were simultaneously and additionally to impose a

concurrent duty on the police to act upon such warnings. As

we noted in Tarasoff, supra, no such duty to act exists.” Id.

at 756. Finally, regarding the juvenile offender’s mother, the

court reasoned that:

notification to the offender’s mother of

James’ threat in our opinion would not have

the desired effect of warning potential

victims, at least in a case such as that herein

presented. . . . The imposition of an

affirmative duty on the County to warn a

parent of generalized threats without

additionally requiring, in turn, some

affirmative action by the parent would prove

ineffective.

Id. at 757. As with the police, because the mother did not

have a duty to take some affirmative action upon receiving

the information about her son’s threat, the court found that

the warning would not have been effective.

Notably, Justice Tobriner, the author of Johnson and

Tarasoff, dissented from the majority’s formulation, finding

that the failure to warn the mother did state a cause of action.

Justice Tobriner explained that “the absence of an identifiable

victim does not postulate the absence of a duty of reasonable

care.” Id. at 760. “Instead, [Johnson and Tarasoff] stand for

the principle that a special relationship, such as that between

the state and a person in its custody, establishes a duty to use

24 DUGARD V. UNITED STATES

reasonable care to avert danger to foreseeable victims. If the

victim can be identified in advance, a warning to him may

discharge that duty; if he cannot be identified, reasonable care

may require other action.” Id. The fact that the specific

victim was not identifiable in advance “cannot absolve the

state from its failure to warn James’ mother so that she could

exercise proper care in observing and supervising James and

thereby preventing the harm that ensued.” Id. at 761. The

majority countered this argument—not by disputing the

dissent’s formulation of the law concerning an identifiable

victim—but instead by noting that “[t]he dissent[’s]

speculat[ion] that the mother ‘might’ have taken special care

to control her son had she been warned of James’ threats”

was “attenuated conjecture,” which “cannot alone support the

imposition of civil liability.” Id. at 757. Moreover, the

majority explained, “it is contrary to the very purpose of such

a release to speculate that a mother in whose care a nearly 18-

year-old offender has been temporarily placed would thereby

assume the constant minute-to-minute supervision that would

have been required to prevent the tragedy.” Id. at 758.2

At the heart of the majority’s decision in Thompson was

a deep concern about expanding the reach of Johnson—which

held that statutory immunity under section 845.8 did not

protect a county from liability for failure to warn of danger

disconnected from the decision to parole—and Tarasoff—

which cemented the probability of liability for failure to warn

2

The Court’s conclusion on this point is dubious to be sure: a warning

to the mother might very well have been effective; for example, reporting

a threatening presence to the police and community is a mainstay of sex

offender notification laws, both state and federal. See Sex Offender

Registration and Notification Act, Pub. L. No. 109-248, Title I (2006).

But that debate is beyond the scope of the question here.

DUGARD V. UNITED STATES 25

in special relationship situations—to require that the

government issue “generalized warnings” to the public every

time a parolee is released.3 Indeed, the question before the

court in Thompson was actually quite narrow: “[W]e

examine the propriety of imposing on those responsible for

releasing or confining criminal offenders a duty to warn of

the release of a potentially dangerous offender who, as here,

has made a generalized threat to a segment of the

population.” Id. at 750 (emphasis added). Looking to

Beauchene for support, the court found that these generalized

warnings would be against public policy:

Furthermore, such notice might substantially

jeopardize rehabilitative effort both by

stigmatizing released offenders and by

inhibiting their release. It is also possible that,

in addition, parole or probation authorities

would be far less likely to authorize release

given the substantial drain on their resources

which such warnings might require. A stated

public policy favoring innovative release

programs would be thwarted.

Id. at 757. The majority found further support in the fact that

“the County’s original decision to release James . . . is a

3

Although Thompson considers the duty of a public entity, its holding

provides an important basis for the private rehabilitation cases that follow.

Accordingly, the justifications for the holding in Thompson also form the

justifications for exempting private rehabilitation facilities from their

special duty—public policy concerns and the futility of any warning. As

detailed below, neither of these justifications apply to federal parole

officers, a difference that warrants looking to other analogous private

entities.

26 DUGARD V. UNITED STATES

decision we already hold is immunized from liability.” Id. at

757–58.

On the heels of Thompson, this Circuit upheld the finding

of no duty in a case where a Job Corps program failed to

control its residents. Vu v. Singer Co., 706 F.2d 1027, 1030

(9th Cir. 1983). The Court came to this conclusion for two

reasons. First, it found that California law with respect to the

duty to warn mandates that the “victim must be foreseeable

and specifically identifiable.” Id. (citing Thompson, 27 Cal.

3d 741). Second, the Court pointed to the same policy

concerns voiced in Beauchene:

To impose on the operator of a center a duty

to prevent the tortious acts of corps members

and to impose liability to the victims of such

acts for having failed to do so would place in

some degree of jeopardy the Job Corps

program and its efforts towards the

rehabilitation of disadvantaged young people.

Faced with such potential liability an operator

with any concern for its economic survival

could be expected to terminate from the corps

any person whose conduct suggests that he

might pose a risk, whether it otherwise

justifies termination or not. This would

deprive of the program’s benefits those most

in need of rehabilitation.

Id.4

4

Judge Rothstein filed a concurrence in Vu, which recognized that the

Court was bound by Thompson, but criticized that decision (relying on

Justice Tobriner’s dissent) as “enunciat[ing] a myopic view of

DUGARD V. UNITED STATES 27

One month later, however, Myers v. Quesenberry clarified

the holding of Thompson, stating that “the fact [that the

plaintiff] was a foreseeable but not a readily identifiable

victim . . . does not preclude him from stating an action.”

144 Cal. App. 3d 888, 892 (Ct. App. 1983). In Myers, a

doctor had failed to warn a patient not to drive due to her

uncontrolled diabetic condition; she struck the plaintiff, who

sued the doctor. The court’s analysis centered on the fact that

“[a]s a practical matter, the doctors here could not have

effectively warned [the plaintiff victim] Myers of the danger

presented by [the patient] Hansen’s driving. . . . However,

they could easily have warned Hansen not to drive because of

her irrational and uncontrolled diabetic condition.” Id. at

892–93 (citations omitted). Of significance was the fact that

“this probably would not have been a futile act. Having

otherwise complied with her doctors’ professional

recommendations, Hansen presumably would have

continued to follow their advice had they warned her not

to drive.” Id. at 893. The court distinguished this holding

from Thompson—not because it involved a doctor-patient

relationship, as the majority argues—but because the warning

would not, as a matter of law, have been futile: “Hansen is

unlike the homicidal actors in Thompson and Tarasoff . . . .

On these pleadings, we cannot factually presume Hansen

would have ignored the doctors’ warning.” Id. Therefore the

court concluded that “under these circumstances where

warning the actor is a reasonable step to take in the exercise

of the standard of care applicable to physicians . . . , liability

is not conditioned on potential victims being readily

identifiable as well as foreseeable. Id. (emphasis added)

(citing Thompson, 27 Cal. 3d at 752–53, 758; Mavroudis v.

foreseeability in the context of the duty to warn and to supervise.” Vu,

706 F.2d at 1031 (Rothstein, J., concurring).

28 DUGARD V. UNITED STATES

Superior Court, 102 Cal. App. 3d 594, 599–601 (Ct. App.

1980)).

In 1987, Cardenas v. Eggleston Youth Center, 193 Cal.

App. 3d 331 (Ct. App. 1987), again shielded a private

rehabilitation facility from liability. As with Beauchene, the

result was wholly driven by public policy:

We are persuaded that the public policy

concerns that led the Beauchene court to find

no duty on the part of that respondent should

lead us to the same conclusion in the case at

bar. We recognize that plaintiff has been

grievously injured, but to permit him recourse

against defendant would have a potentially

devastating impact on private rehabilitation

programs. Such programs, particularly in

these times of overcrowded penal facilities,

serve an indispensable public function.

Forced to choose between the competing

interests presented in this case, we must, like

the Beauchene court, without in the least

minimizing the seriousness of the injury to the

individual, defer to the imperative policy

objective of encouraging innovative release

and rehabilitation programs for criminal

offenders.

Id. at 335–36. The fact that the victims were not specifically

identifiable again did not factor into the analysis.

In 1995, a California Court of Appeals reached a similar

decision to that in Myers in Reisner v. Regents of University

of California, 31 Cal. App. 4th 1195 (Ct. App. 1995). There,

DUGARD V. UNITED STATES 29

a doctor failed to inform a patient, Jennifer, that she had

contracted HIV from a blood transfusion. Id. at 1198. She

later infected her partner, Daniel, who sued the doctor. Id.

As in Myers, the court held that “[f]or several reasons, it is

immaterial that, in Tarasoff, the therapist knew the identity of

his patient’s intended victim whereas, in this case, Defendants

did not know Daniel or even that he existed.” Id. at 1199. In

particular, “warning Jennifer would have been a reasonable

step to take in the exercise of the standard of care applicable

to physicians . . . and we cannot factually presume Jennifer or

her parents would have ignored Defendants’ warning.” Id.

at 1200 (emphasis added).

In 2003, Bragg v. Valdez, 111 Cal. App. 4th 421 (Ct. App.

2003), held a psychiatrist liable for releasing a dangerous

patient from a psychiatric hospital because the patient did not

have insurance. The court noted that “without receiving any

therapy, and without any notification to any other mental

health care provider or the police, Lee was turned loose into

an unsuspecting community. . . . It is foreseeable that

someone who is dangerous to others is liable to act out and be

dangerous.” Id. at 431. The court explained:

This rule is in accordance with Tarasoff and

subsequent case law that holds, “When the

avoidance of foreseeable harm to a third

person requires a defendant to control the

conduct of a person with whom the defendant

has a special relationship (such as physician

and patient) or to warn the person of the risks

involved in certain conduct, the defendant’s

30 DUGARD V. UNITED STATES

duty extends to a third person with whom the

defendant does not have a special

relationship.”

Id. at 432 (quoting Reisner, 31 Cal. App. 4th at 1198).

The court also found that the psychiatrist was not immune

under two state statutes: one granting immunity to

psychiatrists who release patients prior to the end of the

initial 72-hour commitment, and another, enacted after

Tarasoff, that mandated that there could be no monetary

liability to warn of a patient’s threats “except where the

patient has communicated to the psychotherapist a serious

threat of physical violence against a reasonably identifiable

victim or victims.” Id. at 432–34. The court reasoned that

“[t]his case is not dealing with judgment calls, but a

dereliction of judgment.” Id. at 435. Thus, it did not fall

under the purview of either of these statutes, the first of which

was enacted to prevent the “inappropriate, indefinite, and

involuntary commitment of mentally disordered persons” by

protecting a doctor’s assessment of whether or not the person

is a danger; and the second, which “sought to protect [] the

privileged communications between a psychotherapist and his

or her patient in a treatment setting.” Id. at 432–35.

Moreover, the court found that “the trial court erred [] in

analyzing this case as a Tarasoff case.” Id. at 434.

Concluding that the “complaint [did] not allege a failure to

warn a known victim,” but instead concerned “a negligent

release based upon factors other than the professional

judgment that is required when a psychiatrist treats an

individual who is a danger to himself or to others,” the court

held that “Tarasoff [was] inapplicable.” Id.

DUGARD V. UNITED STATES 31

In 2007, a California Court of Appeals again found that a

private rehabilitation center did not owe a duty to the general

public in its vicinity. Rice v. Ctr. Point, Inc., 154 Cal. App.

4th 949, 959 (Ct. App. 2007). In Rice, the court implicitly

acknowledged that the fact that the plaintiffs were not

identifiable victims was not fatal to their claim: the court first

noted that “[h]ere, it is clear that defendants did not owe a

duty to the plaintiffs as the foreseeable victims of the

residents’ criminal conduct,” but then went on to state that

“[t]he more difficult question is whether a special

relationship existed between defendants and their residents

giving rise to a duty owed to the public to exercise reasonable

care to control the criminal conduct of their residents.” Id.

at 955–56 (emphasis added). On this second question, Rice’s

outcome, like Beauchene and Cardenas, was driven almost

exclusively by public policy. The court first noted that, “[i]n

Beauchene, . . . the court concluded that public policy

considerations preclude the imposition of such a duty on the

operators of a rehabilitation facility.” Id. at 956 (emphasis

added). The court then rejected the plaintiff’s attempts to

distinguish Beauchene and Cardenas, based on the fact that

the Rice defendants had violated mandatory rules, reasoning

that “[the facility]’s failure to follow applicable operational

policies or procedures did not give rise to a duty where none

otherwise existed. Defendants’ failure to comply with

applicable safety regulations would at most demonstrate a

lack of reasonable care, i.e. breach of the duty of care if such

a duty were first determined to exist.” Id. at 958 (emphasis

added).

Reading these cases as a whole makes clear that rather

than two separate lines of cases—one dealing with doctors

and the other dealing with rehabilitation facilities—this is a

single line of cases dealing with the fundamental duty to

32 DUGARD V. UNITED STATES

control or warn, based on a special relationship, which has

developed (sometimes awkwardly) over nearly 50 years.

This line of cases begins with the general rule that a

defendant has no duty to warn third parties who are harmed

by a tortfeaser. An exception to this rule based on “special

relationships” was recognized by the California courts in

Poncher (1966) and Johnson (1968). In these cases, the court

unequivocally said there was a duty to warn and/or control a

person who posed a risk of harm to third persons which was

reasonably foreseeable. (Tarasoff further refined this duty

with respect to specifically identifiable victims in certain

circumstances.) In the decisions that followed, the courts

enacted a judicially created immunity for private

rehabilitation facilities and similar programs based on

important public policy considerations (an exception to the

exception, so to speak). And where these policy

considerations have not been present (mostly in the physician

and psychiatrist context), the Court has continued to apply the

Poncher/Johnson duty analysis.

Moreover, a slight but important refinement of the case

law occurred with Myers, which clarified that a victim must

be “foreseeable,” but need not be “readily identifiable.”

Myers, 144 Cal. App. 3d at 892.5 Instead, Myers and

subsequent cases dealing with victims who were not readily

identifiable, focus on whether the proposed action that the

defendant failed to take would have been “reasonable” given

5

The district court here relied on Vu for the proposition that “one must

know that the target of the risk is an identifiable and foreseeable victim.”

Dugard v. United States, No. 3:11-cv-04718-CTB, 2013 WL 6228625, at

*9 (N.D. Cal. Nov. 27, 2013). But Vu was decided before Myers, which

clearly states that “the fact [that the plaintiff] was a foreseeable but not a

readily identifiable victim . . . does not preclude him from stating an

action.” Myers, 144 Cal. App. 3d at 892.

DUGARD V. UNITED STATES 33

the facts of the case and public policy, and whether or not it

would have been “futile.” Id. at 892–93. The only exception

is Rice, which did not reach the issue of whether a warning

would have been futile because it found that “public policy

considerations preclude[d] the imposition of such a duty on

the operators of a rehabilitation facility.” 154 Cal. App. 4th

at 956 (emphasis added). This is the same public policy

mandate that drove the decisions in the earlier rehabilitation

cases. See Cardenas, 193 Cal. App. 3d at 335–36 (“Such

programs, particularly in these times of overcrowded penal

facilities, serve an indispensable public function. Forced to

choose between the competing interests presented in this

case, we must, like the Beauchene court, without in the least

minimizing the seriousness of the injury to the individual,

defer to the imperative policy objective of encouraging

innovative release and rehabilitation programs for criminal

offenders.” (emphasis added)); Vu, 706 F.2d at 1030 (“[T]he

same public policy that moved the Legislature to immunize

public release and rehabilitation programs from liability—to

encourage such innovations in the interests of criminal

justice—compels the conclusion that respondent’s private

release and rehabilitation program owed no legal duty to this

appellant.” (second emphasis added; first and third in

original)).

Critically, nothing in Myers limits its holding to a doctor-

patient relationship. And the court had that opportunity: in

distinguishing Thompson, the court could have said that the

duties that exist in the doctor-patient context do not exist in

other special relationships. Instead, the Myers court found

that, unlike in Thompson, it could not “factually presume

Hansen would have ignored the doctors’ warning.” Myers,

144 Cal. App. 3d at 893. In Thompson, by contrast, the

majority found that all of the suggested warnings—including

34 DUGARD V. UNITED STATES

warning the mother, about which the dissent disagreed—

would have been futile, and further, would have created bad

public policy. 27 Cal. 3d at 756. However, in cases where

there is a third party who can be “effectively warned of the

danger,” id. at 758, or another action that could easily be

taken to prevent the harm without creating bad policy, there

is a duty. See Bragg, 111 Cal. App. 4th at 431–34; Reisner,

31 Cal. App. 4th at 1198–1203; Myers, 144 Cal. App. 3d at

892–94.

II. Most Analogous Private Party

With this backdrop in mind, I turn to determining whether

“a private individual under like circumstances,” 28 U.S.C.

§ 2674, to Defendant would be held liable under California

law.

The two most recent cases—Bragg and Rice—are both

progeny of Poncher and Johnson, and both present

potentially compelling analogies: a psychiatrist who released

a mentally ill and dangerous patient into society, and a private

rehabilitation facility from which several inmates escaped. In

both of these cases, like in the instant case, the question was

whether a party responsible for a dangerous person having the

opportunity to commit a crime could be held liable for the

harm caused. Yet the California courts came to opposite

conclusions: while the psychiatrist was held liable, the private

rehabilitation facility was not. The question is why the

opposite results? The answer to that question reveals which

case is more analogous to this one.

Taking a close look at these cases, it becomes clear that

Bragg, not Rice, presents the “like circumstances” to this

case under California law. The majority simplistically

DUGARD V. UNITED STATES 35

characterizes my argument as preferring “a line of California

cases, particularly involving medical professionals,” Majority

at 12, to the private rehabilitation cases. But as my analysis

above demonstrates, the majority clearly misses the

point—we are dealing here with one line of cases, typified by

the physician and psychologist examples, to which there is an

exception for private rehabilitation facilities based on policy

grounds. Although I concede that it is tempting to conclude,

as the majority has, that because this case deals with the

prison system rather than the medical system, Rice seems

more analogous; but that is a red herring that distracts from

the real comparison. The public policy considerations that

dictated the result in private rehabilitation cases like Rice (the

need for immunity and the futility of the putative warning)

simply do not exist in this case. Instead, the policy

motivations and the futility question in the present case align

much more closely to those in Bragg and demonstrate that a

private person under circumstances similar to those here

would be liable under California tort law.6

6

A recent district court decision with analogous facts applied a similar

approach, using “a person responsible for controlling the acts of a third

party as described in Section 319 of the Restatement (Second) of Torts”

as “the closest private analog.” Ben v. United States, No. 5:14-CV-0370

(CJS), 2016 WL 447713, at *11 (N.D.N.Y. Feb. 4, 2016). In that case, a

criminal defendant, Renz, who had been charged with receiving and

possessing child pornography, was released from custody prior to trial and

placed on electronic monitoring under the supervision of U.S. Probation

and Pretrial Services Office for the Northern District of New York. Id. at

*1. However, “Probation did not follow [its] procedures in Renz’s case.

More specifically, Probation did not develop a supervision plan for Renz,

did not inspect Renz’s electronic monitoring equipment (except perhaps

on one occasion), and did not monitor Renz’s tamper alerts as required

even though tampering with ‘location monitoring’ equipment is

considered a ‘higher-risk violation.’” Id. at *3. While on supervised

release, Renz committed crimes including kidnapping, rape, and murder.

36 DUGARD V. UNITED STATES

In Bragg, the court determined that “[p]reventing future

incidents is [] furthered by imposing a duty to the injured

party.” 111 Cal. App. 4th at 431. Simply put, public policy

favored imposition of a duty on hospitals to refrain from

releasing dangerous patients simply because they do not have

insurance. Moreover, the action required—not releasing the

patient—clearly would not have been futile; it would have

prevented the patient from committing the tort.7 By contrast,

in Rice, the court found that “public policy considerations

preclude the imposition of such a duty on the operators of a

rehabilitation facility.” 154 Cal. App. 4th at 956. The court

in Rice explained that “[w]ere we to find a cause of action

The court denied the government’s motion to dismiss the FTCA claims

against the government, finding that Probation “had sufficient control over

Renz to support a duty under § 319.” Id. at *14. In doing so, the court

rejected the government’s argument that someone on supervised release

is more akin to a voluntary outpatient of a medical/psychiatric facility

(where New York courts had found no duty), as opposed to someone

involuntarily committed to a psychiatric facility (where courts had found

a duty), because supervised release is not “in custody.” Id. Like in the

instant case, on the surface, the outpatient cases looked more analogous

because Probation did not have “actual physical custody of the dangerous

third person”; however, the court looked past the seemingly similar

circumstances in the outpatient cases and interpreted them “as holding that

because the medical/psychiatric facilities had no other way of controlling

the third parties’ actions when they were away from the facilities,” there

was no duty. Id. Probation, by contrast, “had a relationship of control

over Renz that did not require actual physical custody.” Id.

7

It is important to keep in mind that Bragg’s outcome did not hinge on

the existence of a doctor-patient relationship: The psychiatrist was liable

because the negligence did not occur in the course of the doctor-patient

relationship; had the inverse been the case, the psychiatrist would have

had statutory immunity. 111 Cal. App. 4th at 432. Thus, it cannot be said

that the particular contours of the doctor-patient relationship, as opposed

to the duties in other “special relationship” cases, drove the result.

DUGARD V. UNITED STATES 37

stated we would in effect be encouraging the detention of

prisoners in disregard of their rights and society’s needs.”

154 Cal. App. 4th at 956 (emphasis added). As a practical

matter, liability for private rehabilitation facilities would

result in those facilities going out of business and a worsening

of the already daunting prison crisis in California.

Here, the public policy concerns align much more closely

to Bragg than Rice and the other rehabilitation center cases.

The private rehabilitation facility cases turned on the

assumption that imposing liability would be the death knell

of such facilities and that it would be “incongruous” to attach

liability to private facilities for actions for which their public

counterparts were immune. These concerns simply do not

exist in this case.

The majority suggests that the policy concerns that

animated the private rehabilitation cases are equally present

in the federal probation system, drawing support from a

publication of the Administrative Office of the United States

Courts, which contains some generic statements about

flexible and innovative approaches to offender management

and supervision. Noting that the goals of the parole and

probation systems “rang[e] from protecting the public from

further crime to providing the offender with needed

education, vocational training, medical care, and other

correctional treatment,” Majority at 12 (quoting Probation

Division, Administrative Office of the United States Courts,

The Supervision Process, Publication 106, at 21 (1983), the

majority posits that, “[i]mposition of broader liability

logically forces this range of goals to shift to the former

(protecting the public), and away from the latter (education,

vocational training, medical, and correctional treatment).” Id.

For the reasons outlined below, the majority’s suggestion just

38 DUGARD V. UNITED STATES

does not hold water: the policy concerns of federal probation

and parole are not at all aligned with the concerns described

in the private rehabilitation cases.

To begin, the publication cited by the majority makes

clear that parole and probation officers’ primary

responsibility is to keep apprised of and report on the

behavior of the individuals they supervise, and the “flexible

approach” must be consistent with those mandatory

responsibilities:

The supervision responsibilities of

probation officers begin with the statutory

obligation set forth at title 18, USC, 3665, “to

keep informed concerning the conduct and

condition of each probationer under

supervision and report thereon to the court

placing such person on probation.”

This function is also performed for

persons on parole on behalf of the United

States Parole Commission. For offenders who

do not abide by the conditions of supervision,

it is the responsibility of the probation officer

to promptly report this information to the

court or Parole Commission. The probation

officer is also mandated by statute to “use all

suitable methods, not inconsistent with the

conditions imposed by the court, to aid

probationers to bring about improvements in

their conduct and condition.”

Publication 106, at 2 (emphasis added).

DUGARD V. UNITED STATES 39

Second, there is virtually no risk that imposing an

obligation on federal parole officers to follow their

mandatory reporting duties will result in fewer people being

released on parole. For starters, the U.S. Parole Commission

effectively went out of business in the 1980s with the passage

of the Sentencing Reform Act of 1984, Pub. L. No. 98-473,

98 Stat. 1988 (codified at 18 U.S.C. § 3551, et seq.). No

offender has been put on parole in nearly 30 years. The only

function of the Parole Commission since 1988 has been the

management of defendants who were paroled prior to that

date. Since the late 1980s, sentencing decisions lie

exclusively with federal district judges, who prescribe both

the length of incarceration and supervision, or, alternatively,

non-incarcerative probation. These decisions, of course, all

enjoy judicial immunity, and no district judge worth his or

her salt would ever decide to incarcerate a defendant for a

longer period than required to meet the objectives of

18 U.S.C. § 3553 out of fear of creating liability for federal

probation. The idea is unthinkable. To be sure, federal

probation officers supervise defendants during their terms of

supervised release or probation, but probation officials are not

responsible for deciding when a prisoner gets released.

Consequently, there is virtually no risk that holding such

officials responsible for negligence for their failure to

perform nondiscretionary functions will in any way

undermine new or creative rehabilitation programs, or result

in defendants being kept in prison for longer than necessary.

Rather, imposing the duty of reasonable care called for by

Poncher, Johnson, Tarasoff, and Bragg, will better ensure

that U.S. Probation officers perform their duties carefully,

and follow protocols dutifully, as they should, bringing

violations to the attention of U.S. District Judges (or, in the

present case, the U.S. Parole Commission). Simply put, the

concern of the California courts was that third party liability

40 DUGARD V. UNITED STATES

to foreseeable (but not specifically identifiable) victims

would make opening and operating private rehabilitation

facilities financially untenable. No such concern exists in the

federal probation system. Regardless of what liability exists

for federal probation officers’ misdeeds, U.S. Probation will

continue to supervise defendants as directed by federal

judges.

Third, the California courts’ concern about holding

private and public facilities to different standards is not at

play here. The Supreme Court of California recognized in

Johnson that the policy considerations underlying the

immunity provided by Section 845.8, did not apply in a

situation like this one where the decision concerned

“ministerial implementation” rather than a “policy

decision[]”:

Once an official reaches the decision to parole

to a given family, however, the determination

as to whether to warn the foster parents of

latent dangers facing them presents no such

reasons for immunity; to the extent that a

parole officer consciously considers pros and

cons in deciding what information, if any,

should be given, he makes such a

determination at the lowest, ministerial rung

of official action. Judicial abstinence from

ruling upon whether negligence contributed to

this decision would therefore be unjustified;

coupled with the administrative laxness that

caused the loss in the first instance, it would

only result in the failure of governmental

institutions to serve the injured individual.

DUGARD V. UNITED STATES 41

Johnson, 69 Cal. 2d at 795–96 (emphasis added);8 see also

Vu, 706 F.2d at 1029 (“California courts have recognized that

[section 845.8] provides an exception to the rule that special

relationships can result in creation of duty.” (emphasis

added)). Here, the challenged action (or in this case inaction)

is not the policy decision that was made to release Garrido on

parole, nor is it the policy decision that would have been in

the Parole Commission’s discretion to revoke his parole; it is

simply the parole officer’s ministerial task of reporting

Garrido’s numerous drug violations to the Commission.

Thus, the evaluation in the rehabilitation facility cases that

“the same public policy that moved the Legislature to

immunize public release and rehabilitation programs from

liability [under section 845.8]—to encourage such

innovations in the interests of criminal justice—compels the

conclusion that respondent’s private release and rehabilitation

program owed no legal duty to this appellant,” Cardenas,

193 Cal. App. 3d at 335 (emphasis in original) (quoting

Beauchene, 88 Cal. App. 3d at 348), does not apply to these

facts. Moreover, the innovation currently taking place in the

federal system is being driven primarily by the courts. To be

sure, probation offices in innovative courts play a critical

programmatic role, but the policy decision of whether to

adopt a re-entry program or drug court or diversion program

is a judicial function, not a probation function, so it cannot be

said that imposing liability for probation officers’ misdeeds

will stifle innovators and increase incarceration.

8

As Johnson and Thompson were both public entity cases, they cannot

be used as specific examples of a private person in like circumstances.

However, as the majority notes, they nonetheless provide the foundation

for the California tort law concepts and public policy issues at play in this

case.

42 DUGARD V. UNITED STATES

Fourth, this is not a situation where imposing liability

would result in “frequently repeated [warnings that] would do

little as a practical matter to stimulate increased safety

measures” and “would be difficult to give.” Thompson,

27 Cal. 3d at 755. Indeed, unlike the police and the mother

in Thompson, the Parole Commission did have an affirmative

duty to act upon receipt of the warning, and presumably

would have acted in this case. So, futility too is not a

concern.

In contrast, similarities between the public official actor

in this case and the private actor in Bragg are numerous.

Like Bragg, “[t]his case is not dealing with judgment calls,

but a dereliction of judgment.” Bragg, 111 Cal. App. 4th at

435. Here, a parole officer failed to report over 70 drug

violations for a parolee who was known to be extremely

violent when under the influence of drugs. And in this case,

like in Bragg—which analyzed the contours of the duty

because the immunity and public policy issues that are

peculiar to the private rehabilitation facilities were not

applicable—“[p]reventing future incidents is [] furthered by

imposing a duty to the injured party.” 111 Cal. App. 4th at

431. Indeed, if the prevailing public policy in California is to

encourage alternative rehabilitation programs, applying the

same duties to parole officers as those applied to physicians

in Bragg and Myers would advance that policy. As many of

the private rehabilitation cases note, there is an inherent risk

involved in paroling criminals, a risk that is considerably

exacerbated by parole (or probation) officers disregarding

their responsibilities to the degree they were disregarded in

this case. Mitigating the risk of danger associated with parole

or probation/supervision by holding parole and probation

officers responsible for carrying out their mandatory tasks,

makes it more likely, not less, that the public and government

DUGARD V. UNITED STATES 43

officials, and more importantly judges and prosecutors, will

support expansion of alternative rehabilitation programs.

And moreover, imposing a duty on parole officers to

conscientiously do their jobs has the added benefit of

protecting the public during the expansion of these programs.

In essence, the same public policy that drove the result in

Bragg applies in the context of federal parole and

supervision.

Indeed, just as in Bragg “the burden to the

defendant”—here, that parole and probation officers follow

mandatory reporting guidelines that they should be following

anyway—is low; and, unlike in the private rehabilitation

cases, the “consequences to the community of imposing a

duty to exercise care with resulting liability for breach” are

positive. See Myers, 144 Cal. App. 3d at 894 (“There also are

no significant practical problems involved here in requiring

physicians to warn patients not to engage in foreseeably

dangerous conduct. . . . Our holding does not require the

physician to do anything other than what he was already

obligated to do for the protection of the patient.”). As

described above, imposing liability would increase the

likelihood that officers will perform their duties, which in

turn would enhance public safety, which in turn would

increase the support for alternative rehabilitation programs.

Finally, as if more were needed, there is in this case a

specific party to warn which had control of the wrongdoer by

virtue of his status as a parolee: the Parole Commission.

And the Court here cannot say that, as a matter of law, such

a warning would have been futile.

To sum up then, the FTCA requires this Court to look to

the closest private sector analogue to determine if a private

44 DUGARD V. UNITED STATES

party would have a duty in like circumstances. The line of

cases we should look to is the “duty to control/duty to warn”

cases which represent the special relationship exception to the

general rule that there is no duty to third parties harmed by

the wrongdoer. That line of cases has its roots in Poncher

and Johnson. And as the cases have developed, an exception

to the special relationship exception has evolved where public

policy considerations demand parity for private rehabilitation

facilities with the immunity afforded to public facilities,

and/or where the warning suggested would be futile. Where

neither of these policy-based concerns is present, the courts

have continued to find a duty to control or warn, evidenced

by Bragg (control), Tarasoff, Myers, and Reisner (warn).

Here, the policy considerations undergirding the

rehabilitation center exception cases are plainly not present,

and the warning/control that Plaintiff claims should have been

made both would likely have been effective and would have

promoted exactly the behavior that tort law is meant to

promote: greater care, vigilance, and concern for the safety

of foreseeable victims.9

For all of these reasons, I would reverse the district

court’s grant of summary judgment.

9

The government also argues that Dugard’s claims are barred by the

discretionary function exception of the FTCA and that there is insufficient

evidence for a factfinder to determine that the parole officers’ alleged

failure to report Garrido’s drug violations to the Parole Commission

proximately caused Dugard’s harm. I agree with the district court’s

analysis and decision on these two issues and would find that neither

provides grounds to bar Dugard’s claims.