Gonzalez v United States

Determining whether the FBI is shielded from discretionary functions requires an analysis of: (1) whether the conduct is not discretionary and is not “the product of judgment or choice” and (2) whether government policy allows the discretion to be exercised.

This case involves the plaintiffs, Gina Gonzalez and her minor daughter, A.F. (Gonzalez), the FBI, and the Minutemen American Defense who advocate against illegal immigration and patrols the U.S.border. The plaintiffs alleged that the FBI had information regarding a plan by the Minutemen American Defense to invade their home. The group planned to invade a home in Arivaca, Arizona, because they believed the home was a crossroads for drug and weapons trafficking. One member who had contacts with the FBI subsequently told the FBI. Despite not sending anyone undercover to investigate, the FBI was informed of the meeting. The FBI never passed the information to local law enforcement in Arivaca. During the raid, the group fatally shot several family members inside. Gonzalez was able to shoot one intruder which eventually led to their identification and capture. The plaintiff claimed that the United States was liable under the Federal Tort Claims Act for damages resulting from the attack because the FBI was negligent by not disclosing the information to local law enforcement. The Attorney General’s guidelines, however, say that the FBI “shall promptly transmit” information regarding serious criminal activity. Nonetheless, the case was dismissed for lack of subject matter jurisdiction. On appeal, the Ninth Circuit reviewed the claim under a discretionary exemption two prong test. First, the court concluded that the Attorney General's guidelines do not provide guidance for this situation because law enforcement must make determinations on whether certain information requires “immediate action, deferred action, or no action at all.” Second, the FBI’s conduct clearly involved the type of policy judgment protected by the discretionary function exception because investigating crimes involves policy judgments involving the consideration and the reliability of the information, the importance, and the mission and resources. As a result, plaintiff's suit was barred from continuing. AFFIRMED.