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The DOJ And Their Motion To Dismiss The Epstein Survivors 4th Amended Complaint (Part 3) (11/9/26) · Beyond The Horizon

• 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 picking up where we
• 0:07
  Speaker 1: left off with the federal government and their motion to
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  Speaker 1: dismiss the Fourth Amendment complaint filed by the Epstein survivors. I.
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  Speaker 1: Zone of Risk Doctrine Plaintiffs also attempt to assert Count
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  Speaker 1: 2 under the Zone of Risk Doctrine. Under the McCain
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  Speaker 1: Foreseeable Zone of Risk Doctrine, The determination of the existence
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  Speaker 1: of a common law duty flowing from the general facts
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  Speaker 1: of the case under our negligence law depends upon an
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  Speaker 1: evaluation of the concept of foreseeability of harm. In Marjory
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  Speaker 1: Stoneman Douglas, McCain stands for the principle that where a
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  Speaker 1: person's conduct is such that it creates a foreseeable zone
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  Speaker 1: of risk, posing a general threat of harm to others,
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  Speaker 1: a legal duty, will ordinarily be recognized to ensure that
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  Speaker 1: the underlying threatening conduct is carried out reasonably. However, plaintiffs'
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  Speaker 1: claim here fails for a similar reason as their undertaking doctrine.
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  Speaker 1: Plaintiffs have failed to plausibly allege a duty on behalf
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  Speaker 1: of the government or an affirmative action the government took
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  Speaker 1: to create this alleged foreseeable zone of risk. Unlike Marjory
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  Speaker 1: Stoneman Douglas, where the FBI created and operated the PAL,
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  Speaker 1: excluding the ability of callers to speak to their local
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  Speaker 1: field office, no such action occurred here. There was no
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  Speaker 1: affirmative conduct of eliminating the ability of concerned citizens to
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  Speaker 1: contact their local FBI field office directly, creating a risk
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  Speaker 1: that information about imminent threats to life from concerned citizen
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  Speaker 1: tipsters would not be related to those equipped to act. Rather,
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  Speaker 1: plaintiffs seemingly rely on a failure-to-act argument, which is not
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  Speaker 1: cognizable under the McCain zone of risk doctrine analysis. In essence,
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  Speaker 1: plaintiffs have alleged that tips were given directly to FBI
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  Speaker 1: agents in 1996 and 2005, which the FBI decided not
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  Speaker 1: to act upon. This alleged fact distinguishes the FAC from
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  Speaker 1: the Marjory Stoneman Douglas allegations where the court found the
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  Speaker 1: PAL failed in the duty to get the information to
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  Speaker 1: an FBI agent for evaluation. As the FAC alleges, the
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  Speaker 1: tips were provided to FBI agents, the decision to investigate
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  Speaker 1: or not investigate Epstein, was completely within the discretion vested
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  Speaker 1: in the executive branch. Any alleged detrimental reliance upon these
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  Speaker 1: phone calls was inherently unreasonable due to the complete lack
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  Speaker 1: of follow-up by the FBI over the passage of many years.
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  Speaker 1: The FAC is inherently contradictory, alleging reasonable detrimental reliance as
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  Speaker 1: a conclusory allegation while overlooking its specific allegations that the
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  Speaker 1: FBI never followed up with any of the victim's including
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  Speaker 1: Audra Christensen, Maria Farmer, and Annie Farmer, and never sought
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  Speaker 1: to collect any evidence. Further, any allegation of a duty
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  Speaker 1: created in the 2005-2006 time period fails Rule 8 scrutiny
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  Speaker 1: due to its inherent contradictory allegations that the FBI failed
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  Speaker 1: to investigate in contravention of the fact that an intensive
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  Speaker 1: investigation was conducted by the FBI, which culminated in the NPA.
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  Speaker 1: which was a constitutionally vested decision by the U.S. Attorney
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  Speaker 1: not to prosecute Epstein, despite the evidence collected by the
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  Speaker 1: FBI's diligence. See non-prosecution agreement attached as Exhibit H. 2.
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  Speaker 1: Plaintiffs' claims were barred by the discretionary function exception. Plaintiffs
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  Speaker 1: allege in various places throughout the FAC that the FBI
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  Speaker 1: failed to follow mandatory policies and procedures to investigate child
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  Speaker 1: sex abuse, and that such policies were not Discretionary, but mandatory. However,
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  Speaker 1: such allegations are categorically incorrect. What, when, and how the
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  Speaker 1: FBI chooses to investigate is a matter of discretion. Additionally,
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  Speaker 1: a prosecutor's decision to choose whether or not to charge
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  Speaker 1: an individual with a criminal offense is inherently discretionary. The
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  Speaker 1: court therefore lacks subject matter jurisdiction over plaintiff's claims. a.
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  Speaker 1: The discretionary function exception generally. The FTCA's waiver of sovereign
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  Speaker 1: immunity is subject to several exceptions, including the discretionary function exception.
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  Speaker 1: The statute provides that the jurisdiction given to district courts
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  Speaker 1: under U.S. Code 28-1346-B1 does not apply in cases where
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  Speaker 1: a claim is, based upon an act or omission, of
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  Speaker 1: an employee of the government exercising due care in the
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  Speaker 1: execution of a statute of a regulation, whether or not
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  Speaker 1: that statute or regulation be valid in or are based
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  Speaker 1: upon the exercise or performance or the failure to exercise
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  Speaker 1: or perform a discretionary function or duty on the part
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  Speaker 1: of a federal agency or an employee of the government.
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  Speaker 1: Whether or not the discretion involved, be abused. U.S. Code 28,
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  Speaker 1: Section 2680-A. The Supreme Court in the United States, Colbert v. 499, U.S. 315-1991,
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  Speaker 1: established a two-step test to determine whether if the discretionary
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  Speaker 1: function exception applies. First, a court must look to the
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  Speaker 1: nature of the act and whether it involved an element
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  Speaker 1: of judgment or choice. So long as the course of
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  Speaker 1: action is not specifically prescribed by a federal statute regulation
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  Speaker 1: or a policy, the conduct at issue will meet this
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  Speaker 1: first step. The court then must consider the second part
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  Speaker 1: of the test, whether that judgment is the kind of
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  Speaker 1: judgment that the discretionary function was designed to shield. In
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  Speaker 1: other words, The discretionary function exception insulates the government from
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  Speaker 1: liability if the action challenged in the case involves the
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  Speaker 1: permissible exercise of policy judgment. B. Law enforcement investigations are
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  Speaker 1: protected by the discretionary function exception. Before addressing whether the
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  Speaker 1: government's conduct violated a mandatory regulation or a policy, the
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  Speaker 1: court must first determine exactly what conduct is at issue.
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  Speaker 1: Autry v. United States, 11th Circuit 1993. Here the conduct
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  Speaker 1: at issue is the manner and method by which the
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  Speaker 1: FBI pursued its investigation into Epstein. As explained below, all
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  Speaker 1: relevant investigatory decisions by federal law enforcement officers are covered
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  Speaker 1: by the FTCA's discretionary function exception. The executive branch had
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  Speaker 1: absolute discretion to decide whether to investigate its decisions are
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  Speaker 1: not subject to judicial review. Engel v. FBI April 28, 2025,
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  Speaker 1: citing United States v. Nixon, 1974. Law enforcement personnel's failure
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  Speaker 1: to discover, investigate, and dissolve crimes are the types of
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  Speaker 1: decisions that are the discretionary function exemption would be expected
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  Speaker 1: to shield. Zelaya v. U.S., 11th Circuit, 2015. The Supreme
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  Speaker 1: Court has recognized on several occasions over many years that
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  Speaker 1: an agency's decision not to prosecute or enforce crimes whether
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  Speaker 1: through civil or criminal process, is a decision generally committed
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  Speaker 1: to an agency's absolute discretion. Heckler v. Cheney, 1985 The
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  Speaker 1: overwhelming consensus of federal case law establishes that criminal law
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  Speaker 1: enforcement decisions, investigative and prosecutorial alike, are discretionary in nature
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  Speaker 1: and therefore by congressional mandate immune from judicial review. Marcus J. Affirmed,
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  Speaker 1: 1997 In Mesa, the plaintiff brought an FTCA alleging that
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  Speaker 1: DEA agents failed to properly identify the subject of an
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  Speaker 1: arrest warrant and mistakenly arrested the plaintiff. The 11th Circuit
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  Speaker 1: readily concluded that law enforcement officer decisions regarding how to
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  Speaker 1: investigate the subject of an arrest warrant are discretionary in
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  Speaker 1: nature and involve an element of judgment or choice and
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  Speaker 1: grounded in consideration of public policy, thus falling within the
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  Speaker 1: FTCA's discretionary function exception. see United States v. Martinez, D.C., 2008,
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  Speaker 1: finding that discretionary function applied to claims that the FBI
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  Speaker 1: was derelict in its duty when it failed to take
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  Speaker 1: plaintiffs' complaints seriously and failed to help her when she
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  Speaker 1: made various calls to field offices. Decisions as to whether, when,
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  Speaker 1: and against whom to initiate prosecution are quintessential examples of
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  Speaker 1: governmental discretion in enforcing criminal law, and accordingly courts have
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  Speaker 1: uniformly found them to be immune under the discretionary function exception.
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  Speaker 1: The federal government's decision concerning enforcement of its criminal statutes
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  Speaker 1: comprise a part of its pursuit of national policy. Courts
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  Speaker 1: have been cautious about intervening in this area, aware that
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  Speaker 1: imposing liability for such decisions would seriously handicap the FBI
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  Speaker 1: and other federal law enforcement agencies in carrying out the
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  Speaker 1: important duties assigned to them by Congress. Souter v. United States,
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  Speaker 1: 4th Circuit, 2006 holding that discretionary function exception applied to
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  Speaker 1: FBI's methods in undercover investigations. How law enforcement agents conduct
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  Speaker 1: interrogations appear to be paradigmatic examples of a discretionary function
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  Speaker 1: involving elements of judgment and choice, the central ingredients of discretion.
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  Speaker 1: Decisions of federal law enforcement officers concerning the manner in
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  Speaker 1: which the search fall within the scope Of the discretionary
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  Speaker 1: function exception, Gonzalez v. United States, 9th Circuit, 2016. Discretionary
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  Speaker 1: function exception applied to FBI's failure to disclose information. to
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  Speaker 1: local law enforcement regarding a threatened home invasion. Affirming dismissal
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  Speaker 1: of FTCA, action arising from FBI's negligent investigation because it
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  Speaker 1: follows inexorably as night follows day. that the challenge conduct
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  Speaker 1: is discretionary. Shuler vs. U.S. 2008. Decisions regarding the timing
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  Speaker 1: of arrests are the kind of discretionary government decisions rife
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  Speaker 1: with considerations of public policy that Congress did not want
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  Speaker 1: the judiciary second-guessing. All right, folks, we're going to wrap
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  Speaker 1: up right here. And in the next episode, we're going
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  Speaker 1: to pick up where we left off. All the information
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  Speaker 1: that goes with this episode can be found in the
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  Speaker 1: description box.