Latest / The Epstein Chronicles / The Report And Recommendation To Allow The Survivor Suit Against The FBI To Proceed (Part 3) (8/23/26)

Transcript

The Report And Recommendation To Allow The Survivor Suit Against The FBI To Proceed (Part 3) (8/23/26) · The Epstein Chronicles

• 0:00
  Speaker 1: What's up, everyone, and welcome to another episode of the
• 0:03
  Speaker 1: Epstein Chronicles. In this episode, we're getting right back to
• 0:07
  Speaker 1: the report from Judge Leebewitz about the survivor's lawsuit filed
• 0:13
  Speaker 1: against the FBI b lack of private party analogs under
• 0:18
  Speaker 1: state law. The government next urges dismissal based on the
• 0:22
  Speaker 1: lack of private party analogs under applicable state law. By
• 0:26
  Speaker 1: way of the FTCA, the government only agrees to waive
• 0:29
  Speaker 1: its sovereign immunity in the same manner and to the
• 0:32
  Speaker 1: same extent as a private individual under like circumstances. Likewise,
• 0:37
  Speaker 1: the FTCA only gives federal courts subject matter jurisdiction over
• 0:42
  Speaker 1: and hence the government only waives its sovereign immunity for
• 0:45
  Speaker 1: claims in which the US if a private person, would
• 0:48
  Speaker 1: be liable to the claimant in accordance with the law
• 0:52
  Speaker 1: of the place where the act or omission occurred. US
• 0:55
  Speaker 1: Code twenty eight, Section thirteen forty six B one. For
• 0:59
  Speaker 1: a purpose of this statute, the law of the place
• 1:01
  Speaker 1: where the act or omission occurred means the law of
• 1:04
  Speaker 1: the state where the alleged toward occurred. In other words,
• 1:07
  Speaker 1: FTCA liability cannot be triggered unless the federal employee's conduct
• 1:11
  Speaker 1: would be independently tortious against a private person under applicable
• 1:15
  Speaker 1: state law. Courts often refer to this requirement as a
• 1:19
  Speaker 1: private party analog in a medical malpractice case. For example,
• 1:24
  Speaker 1: a government doctor working at veterans Administration hospital could be
• 1:28
  Speaker 1: compared to a private doctor working at a private hospital.
• 1:32
  Speaker 1: In that situation, the FTCA would wave of sovereign immunity
• 1:36
  Speaker 1: to the same extent that a private doctor could be
• 1:38
  Speaker 1: held liable under state toward law under like circumstances. As
• 1:42
  Speaker 1: the Eleventh Circuit observed in Zaalaia, it can be conceptually
• 1:46
  Speaker 1: difficult to find private party analogs for cases that involve
• 1:49
  Speaker 1: uniquely governmental functions Idea at thirteen twenty four, noting that
• 1:55
  Speaker 1: it can be difficult to imagine how a private person
• 1:58
  Speaker 1: could be liable for breaches of such quintessentially governmental functions
• 2:02
  Speaker 1: as a regulation of error travel, prisoners, drugs, and livestock,
• 2:06
  Speaker 1: because no private person has such duties under state law.
• 2:10
  Speaker 1: Notwithstanding this conceptual difficulty, the Supreme Court long ago made
• 2:15
  Speaker 1: clear that there is no exception from FTCA liability solely
• 2:19
  Speaker 1: because the particular tort arose from the performance of uniquely
• 2:23
  Speaker 1: governmental functions. As such, federal courts must look for a
• 2:28
  Speaker 1: private party analog even for quintessentially government functions. Significantly, however,
• 2:34
  Speaker 1: when analyzing private party analogs, federal courts cannot superimpose limitations
• 2:39
  Speaker 1: that state law affords its own state or municipal actors,
• 2:43
  Speaker 1: such as state law protections of sovereign immunity. To do
• 2:47
  Speaker 1: so would ignore the word private as used in section
• 2:51
  Speaker 1: thirteen forty six B one and section twenty six seventy
• 2:54
  Speaker 1: four see US Versulsen, two thousand and five, noting that
• 2:58
  Speaker 1: the FTCA waives sovereign immunity under circumstances where the United
• 3:02
  Speaker 1: States if a private person, not the United States if
• 3:06
  Speaker 1: a state or municipal entity, would be liable. Accordingly, in
• 3:10
  Speaker 1: searching for private party analogs, federal courts must ignore state
• 3:14
  Speaker 1: law doctrines that afford a special role to state or
• 3:17
  Speaker 1: municipal actors. In this case, plaintiffs have alleged negligence on
• 3:22
  Speaker 1: the part of the FBI agents in New York, Florida,
• 3:25
  Speaker 1: and other unidentified states in order to determine whether subject
• 3:30
  Speaker 1: matter jurisdiction exists. Therefore, this Court must determine whether the
• 3:34
  Speaker 1: common law of these states would impose court liability upon
• 3:38
  Speaker 1: private persons under circumstances like those alleged in the fac
• 3:43
  Speaker 1: See Turner verus Turner and US five, fourteen eleven Circuit
• 3:47
  Speaker 1: two thousand and eight. Recognizing that like circumstances need not
• 3:51
  Speaker 1: be identical or same circumstances, the Court is considered but
• 3:56
  Speaker 1: rejects plaintiffs' argument that the Court should analyze the conduct
• 4:00
  Speaker 1: of all FBI agents under the common umbrella of Florida law.
• 4:04
  Speaker 1: As stated, the Eleventh Circuit has made clear that the
• 4:08
  Speaker 1: law of the place where the act or omission occurred,
• 4:10
  Speaker 1: as used in the FTCA, means the law of the
• 4:13
  Speaker 1: state where the alleged toward occurred. Moreover, the FTCA does
• 4:18
  Speaker 1: not authorize suits based on the conduct of an entire
• 4:21
  Speaker 1: federal agency writ large, it only authorizes suits based on
• 4:25
  Speaker 1: the conduct of individual federal employees. See Leave Verus US Arizona,
• 4:31
  Speaker 1: September eighteenth, twenty twenty, noting that the FTCA applies only
• 4:35
  Speaker 1: to the negligent or wrongful act or omission of any
• 4:39
  Speaker 1: employee of the US while acting within the scope of
• 4:42
  Speaker 1: his office or employment, not to generalize theories of negligence
• 4:46
  Speaker 1: asserted against the staff and employees of federal institutions as
• 4:50
  Speaker 1: a whole. Accordingly, the court must analyze private party analogs
• 4:55
  Speaker 1: on a state by state basis, based on the conduct
• 4:58
  Speaker 1: of FBI employees in each state. One New York and Florida,
• 5:03
  Speaker 1: the fac alleges negligence on the part of FBI agents and,
• 5:07
  Speaker 1: among other places, New York and Florida. As a general rule,
• 5:11
  Speaker 1: the common law of both states imposes no duty on
• 5:14
  Speaker 1: the part of a private person to prevent or control
• 5:18
  Speaker 1: the criminal conduct of a third person see Party verse,
• 5:21
  Speaker 1: Public Administrators of Westchester County, nineteen eighty eight. Nevertheless, the
• 5:28
  Speaker 1: common law of both states also recognizes a version of
• 5:32
  Speaker 1: the voluntary undertaker or a good Samaritan doctrine, as embodied
• 5:36
  Speaker 1: in the Restatement second of torts, which provides as follows,
• 5:40
  Speaker 1: one who undertakes gratuitously or for consideration to render services
• 5:45
  Speaker 1: to another which he should recognize as necessary for the
• 5:48
  Speaker 1: protection of a third person or his things is subject
• 5:52
  Speaker 1: to liability to the third person for physical harm resulting
• 5:56
  Speaker 1: from his failure to exercise reasonable care to protect his
• 5:59
  Speaker 1: own undertaking. If a his failure to exercise reasonable care
• 6:04
  Speaker 1: increases the risk of such harm, or B he has
• 6:07
  Speaker 1: undertaken to perform a duty owed by the other to
• 6:10
  Speaker 1: the third person, or c the harm is suffered because
• 6:14
  Speaker 1: of reliance on the other or the third person upon
• 6:17
  Speaker 1: the undertaking. In support of common law duty. Plaintiff site
• 6:22
  Speaker 1: MSD for eighty two f Dot supp. Three d twelve
• 6:26
  Speaker 1: seventy three, where Judge Demetriolis allowed a negligence claim to
• 6:31
  Speaker 1: proceed against FBI agents in connection with their failure to
• 6:35
  Speaker 1: prevent a school shooting. In that case, Judged Demetriolis relied
• 6:38
  Speaker 1: on Florida's voluntary undertaking doctrine to find a private party
• 6:42
  Speaker 1: analog for purposes of the FTCA. Judged Demetriolis found the
• 6:47
  Speaker 1: doctrine applicable based on the unique facts alleged in the
• 6:51
  Speaker 1: MSD complaint. In particular, the MSD complaint alleged that the
• 6:55
  Speaker 1: FBI had established a public access line or PAL to
• 6:59
  Speaker 1: serve as a central repository and conduit for information regarding
• 7:03
  Speaker 1: potential threats to life, and to handle and relay that
• 7:06
  Speaker 1: information to FBI field agents and analysts, even to the
• 7:10
  Speaker 1: exclusion of other law enforcement entities. That could have handled
• 7:13
  Speaker 1: the information. The MSD complaint alleged that several weeks prior
• 7:18
  Speaker 1: to the school shooting, a person close to the shooter
• 7:20
  Speaker 1: telephone the pal to report extremely urgent and highly specific
• 7:25
  Speaker 1: concerns about the shooter's behavior, including the fact that he
• 7:28
  Speaker 1: had the desire to kill people, that he was fixated
• 7:32
  Speaker 1: with ISIS and had access to guns and ammunition, and
• 7:36
  Speaker 1: that he had the potential to become a school shooter
• 7:38
  Speaker 1: IDEA twelve seventy eight. The complaint further alleged that an
• 7:42
  Speaker 1: FBI employee affirmatively assured the caller that the FBI would
• 7:46
  Speaker 1: follow up on that information provided. In reliance on this assurance,
• 7:51
  Speaker 1: the caller fore went contacting other law enforcement agencies, and
• 7:55
  Speaker 1: fore went contacting the high school itself. The FBI thereafter
• 7:59
  Speaker 1: fell to take appropriate investigative steps in response to the call.
• 8:04
  Speaker 1: Given that the FBI undertook to create power and that
• 8:07
  Speaker 1: the FBI employee made assurances to the caller but failed
• 8:10
  Speaker 1: to follow through on those assurances, Judge Demitriolis found that
• 8:14
  Speaker 1: the MSD plaintiff stated a plausible negligence claim under the
• 8:19
  Speaker 1: voluntary undertaker doctrine. Likewise, Judge Demitriolis found that the FBI
• 8:24
  Speaker 1: employees own affirmative conduct caused the caller to forego contact
• 8:28
  Speaker 1: with other law enforcement thereby creating a foreseeable zone of
• 8:32
  Speaker 1: risk sufficient to give rise to negligence claim under Florida's
• 8:36
  Speaker 1: related zoner risk doctrine. While applying these standards in case
• 8:39
  Speaker 1: law here, the court finds that the fac makes sufficient
• 8:43
  Speaker 1: allegations accepted is true to allege plausible private party analogs
• 8:47
  Speaker 1: under both New York and Florida law. As to New
• 8:51
  Speaker 1: York law, plaintiffs alleged that FBI agents in New York
• 8:54
  Speaker 1: voluntarily accepted Maria Farmer's complaints in ninety six, thereby undertaking
• 8:59
  Speaker 1: to help. Plaintiffs further allege that FBI agents affirmatively told
• 9:04
  Speaker 1: Farmer not to share the complaint with anyone else, including
• 9:08
  Speaker 1: other law enforcement agencies. As in the MSD case. Farmer
• 9:13
  Speaker 1: for when contacting other law enforcement agencies, believing FBI agents
• 9:17
  Speaker 1: would exercise due care in their investigation. Plaintiffs alleged that
• 9:21
  Speaker 1: FBI agents created a foreseeable zone of risk to future
• 9:25
  Speaker 1: EPSTEIN victims, including themselves, by failing to exercise due care
• 9:29
  Speaker 1: in the investigation of Farmers credible allegations. Construing these allegations
• 9:34
  Speaker 1: in the light most favorable to plaintiffs, the court finds
• 9:37
  Speaker 1: that the allegations sufficient to survive dismissal and state a
• 9:41
  Speaker 1: plausible common law duty of care under New York's voluntary
• 9:45
  Speaker 1: undertaking and good Samaritan doctrines. As to Florida law, the
• 9:51
  Speaker 1: FAC alleges that FBI agents in Florida voluntarily accepted a
• 9:55
  Speaker 1: referral of the Epstein case from the Palm Beach Police
• 9:57
  Speaker 1: Department in two thousand and six, thereby on taking to
• 10:00
  Speaker 1: hell victims. Plaintiff further alleges that the FBI agents closer
• 10:05
  Speaker 1: investigation in two thousand and seven by the way of
• 10:07
  Speaker 1: the non prosecution agreement. Despite this, FBI agents thereafter sent
• 10:12
  Speaker 1: numerous letters to Epstein victims in October of two thousand
• 10:15
  Speaker 1: and seven, January two thousand and eight, and May two
• 10:18
  Speaker 1: thousand and eight, claiming the case was currently under investigation.
• 10:22
  Speaker 1: This representation was false, and as the case had ended
• 10:26
  Speaker 1: with the non prosecution agreement. By sending these letters, FBI
• 10:30
  Speaker 1: agents affirmatively misled victims into believing the investigation was still ongoing.
• 10:36
  Speaker 1: As in the MSD case, the recipients of the letters
• 10:39
  Speaker 1: mistakenly believed the FBI was doing something, when in fact
• 10:42
  Speaker 1: the FBI was doing nothing. Plaintiffs alleged the FBI agents
• 10:46
  Speaker 1: created a foreseeable Zona risk to future EPSTEIN victims, including themselves,
• 10:51
  Speaker 1: by misleading victims and failing to exercise due care in
• 10:54
  Speaker 1: the Florida investigation. Construing these allegations in the light most
• 10:59
  Speaker 1: favorable to plaintf the Court finds the allegations sufficient to
• 11:02
  Speaker 1: survive dismissal and state a plausible common law duty of
• 11:06
  Speaker 1: care under Florida's voluntary undertaking of zone risk doctrines. The
• 11:12
  Speaker 1: Court continues to express skepticism that plaintiffs can ultimately prove
• 11:16
  Speaker 1: causation a necessary element to negligence claim. Under both New
• 11:20
  Speaker 1: York and Florida law, FBI agents have no authority to
• 11:24
  Speaker 1: pursue criminal prosecutions or impose prison sentences on criminals. Only
• 11:29
  Speaker 1: prosecutors and judges can do that. Accordingly, even if FBI
• 11:33
  Speaker 1: agents had taken all of the investigative steps that plaintiffs
• 11:37
  Speaker 1: believe they should have taken, none of those steps would
• 11:40
  Speaker 1: have guaranteed that prosecutors would have brought criminal charges or
• 11:43
  Speaker 1: that a judge would have imposed a prison sentence upon
• 11:46
  Speaker 1: Epstein before he committed further crimes against plaintiffs. Nevertheless, New
• 11:52
  Speaker 1: York and Florida law generally reserves causation as an issue
• 11:56
  Speaker 1: of fact for a jury to decide, noting that foreseeability
• 12:02
  Speaker 1: and causation are issues generally and more suitably entrusted to
• 12:06
  Speaker 1: fact finder adjudication. Stall vers Metro Dade County, Florida, third DCA.
• 12:12
  Speaker 1: Nineteen eighty three, noting approximate causes generally for jeries to
• 12:16
  Speaker 1: decide using their common sense upon appropriate instruction, the issue
• 12:21
  Speaker 1: should rarely be decided on some rejudgment, let alone on
• 12:24
  Speaker 1: a motion to dismiss. As such, the court rejects this
• 12:28
  Speaker 1: argument for dismissal. All right, we're going to wrap up
• 12:31
  Speaker 1: right here, and in the next episode, we're going to
• 12:33
  Speaker 1: pick up with two FBI agents in unidentified states. All
• 12:38
  Speaker 1: the information that goes with this episode can be found
• 12:41
  Speaker 1: in the description box.