018 - Response To Motion For Relief I

Case 3:17-cv-02692-S Document 18 Filed 02/15/18 Page 1 of 31 PageID 247
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
MR. BRUCE JOINER
Plaintiff,
v.
Case No. 3:17-cv-02692
UNITED STATES OF AMERICA
Defendant.
PLAINTIFF MR. BRUCE JOINER’S MEMORANDUM

IN OPPOSITION TO DEFENDANT’S MOTION TO DISMISS OR,
IN THE ALTERNATIVE, LEAVE TO FILE AN AMENDED COMPLAINT
Trenton Roberts
ROBERTS & WILLIE, PLLC
212 Suntide Drive
Sunnyvale, TX 75182
Attorney for Plaintiff

MR. BRUCE JOINER
Memorandum in Opposition to Motion to Dismiss - i

Table of Contents
Table of Authorities........................................................................................................................iii
Cases ........................................................................................................................................iii
Statutes ..................................................................................................................................... iv
Other Authorities ..................................................................................................................... iv
Treatises .................................................................................................................................... v
Regulations ............................................................................................................................... v
Summary of Argument .................................................................................................................... 1
Standard of Review ......................................................................................................................... 2
Argument ......................................................................................................................................... 3
I. Plaintiff’s Claims are Not Barred by the Discretionary Function Exception ...................... 3
A. Defendant’s argument is premature because Plaintiff should be entitled to discovery
prior to the Court determining if the discretionary function exception applies to this
case ................................................................................................................................ 4
B. The discretionary function exception does not apply to the Plaintiff’s claims ............. 5
1. Gaubert test, first part: FBI violations of legally-prescribed courses of action ........ 6
i. FBI violated agency policy relating to undercover operations................................ 7
ii. FBI violated federal statute and agency policy relating to gun purchase
background checks .................................................................................................. 9
iii. FBI violated the Due Process Clause .................................................................... 12
2. Gaubert test, second part: Congress did not intend for the discretionary function
exception to shield the FBI’s actions in question ................................................... 14
i. Congress did not intend for the discretionary function exception to shield the
FBI’s actions in the undercover Garland operation ............................................. 14
ii. Congress did not intend for the discretionary function exception to shield ATF
and FBI violations of background check statutes to allow criminals and terrorists
to purchase guns ................................................................................................... 16
II. The FBI Violated the Duty it owed Plaintiff under Texas Law ........................................ 16
III. The FBI is liable for civil assault under Texas tort law .................................................... 17
IV. Under the Geneva Convention, the United States has waived “any” sovereign immunity
for willful attacks on civilians ........................................................................................... 21
Conclusion ..................................................................................................................................... 25
Memorandum in Opposition to Motion to Dismiss - ii

TABLE OF AUTHORITIES
Cases
A.H. Belo Corp. v. Corcoran, 52 S.W.3d 375, 379 (Tex. Ct. App. 2001) .............................. 18
Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 686 (1987) ...................................................... 24
Almog v. Arab Bank, PLC, 471 F. Supp. 2d 257, 280 (E.D.N.Y. 2007) ............................... 22
Ashcroft v. Iqbal, 556 U.S. 662 (2009) ..................................................................................... 1
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) ..................................................................... 1
Beanal v. Freeport-McMoRan, Inc., 969 F. Supp. 362, 371 (E.D. La. 1997) ........................ 23
Berkovitz v. United States, 486 U.S. 531, 535 (1988).............................................................. 4
Berkovitz v. United States, 486 U.S. 531, 536 (1988).............................................................. 3
Chase v. United States, 222 F. 593, 596 (8th Cir. 1915) ........................................................ 23
Collins v. Morgan Stanly Dean Witter, 24 F.3d 496, 498 (5th Cir. 2000) ............................... 3
Cope v. Scott, 45 F. 3d 445, 449 (D.C. Cir. 1995) ................................................................... 3
DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr., 485 U.S. 568, 575 (1988) ................... 24
Doe v. SmithKline Beecham Corp., 855 S.W.2d 248, 256 (Tex. Ct. App.) ........................... 16
El Chico Corp. v. Poole, 732 S.W.2d 306, 312 (Tex. 2007) .................................................. 16
Estate of C.A. v. Castro, 547 F. App’x 621, 626–27 (5th Cir. 2013) ..................................... 13
Ewolski v. City of Brunswick, 287 F.3d 492, 509 (6th Cir.2002) .......................................... 13
Farmer v. Brennan, 511 U.S. 825, 836-40 (1994) .................................................................. 13
Grandstaff v. City of Borger, 767 F.2d 161, 168 (5th Cir.1985) ............................................ 18
Hamdan v. Rumsfeld, 548 U.S. 557 (2006) ............................................................................ 23
Hamdi v. Rumsfeld, 542 U.S. 507 (2004) .............................................................................. 23
Hart v. City of Little Rock, 432 F.3d 801, 805 (8th Cir. 2005) .............................................. 13
Herero People’s Reparations Corp. v. Deutsche Bank, A.G., 370 F.3d 1192, 1195 (D.C. Cir.
2004) ................................................................................................................................. 23
Holden v. Joy, 84 U.S. 211, 247 (1872) ................................................................................. 23
Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995) ..................................................... 5
Howard Routh & Sons v. United States, 668 F.2d 454, 456 (10th Cir. 1981) ......................... 4
Huddleston v. United States, 415 U.S. 814, 824 (1974) ......................................................... 16
Johnson v. Davis, 178 S.W.3d 230, 240 (Tex. App. 2005) .............................................. 17, 18
Jones v. Meehan, 175 U.S. 1, 32 (1899) ........................................................................... 23, 24
Kadic v. Karadzic, 70 F.3d 232, 243 (2d Cir. 1995)............................................................... 25
Memorandum in Opposition to Motion to Dismiss - iii

Kaiser v. Grimsinger, 1998 WL 35277046 (Tex. App. Aug.13, 1998) .................................. 21

Kerns v. U.S., 585 F.3d 187, 192 (4th Cir. 2009) ..................................................................... 5
Loumiet v. U.S., No. 15-5208, 10-11 (Court of Appeals, D.C. Cir. 2016) ............................ 12
Manquno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 275 (5th Cir. 2002) .................. 2
Matter of Extradition of Marzook, 924 F. Supp. 565, 577–78 (S.D.N.Y. 1996) .................... 22
McCauley v. City of Chi., 671 F.3d 6 (7th Cir. 2011)............................................................... 1
Mujica v. Occidental Petroleum Corp., 381 F. Supp. 2d 1164, 1181 (C.D. Cal. 2005) ......... 22
Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804) ........................ 23, 24
O’Toole v. United States, 295 F.3d 1029, 1037 (9th Cir. 2002) .............................................. 3
Pan-Am. Life Ins. Co. v. Bergerson, 82 Fed. Appx. 388, 390 (5th Cir. 2003) ......................... 3
Sosa v. Alvarez-Machain, 542 U.S. 692, 762–63 (2004) (Breyer, J., concurring) ................. 23
St. Mary of the Plains v. Higher Ed. Loan Program, 724 F. Supp. 803, 805 (D. Kan. 1989) .. 5
Stein v. Meachum, 748 S.W.2d 516, 518–19 (Tex.App.-Dallas 1988, no writ)..................... 18
Sutton v. United States, 819 F.2d 1289, 1293 (5th Cir. 1987)................................................ 12
The Nancy, 27 Ct. Cl. 99, 109 (1892)..................................................................................... 23
The Rose, 36 Ct. Cl. 290, 301 (1901) ..................................................................................... 23
United States v. Gaubert, 499 U.S. 315, 322-23 (1991) ........................................................... 3
United States v. Varig Airlines, 467 U.S. 797, 813 (1984) ...................................................... 4
Williamson v. Tucker, 645 F.2d 404, 415 (5th Cir. 1981) ....................................................... 5
Wilson v. Wall, 73 U.S. 83, 89 (1867) ................................................................................... 24
Statutes
§22.01...................................................................................................................................... 18
18 U.S.C. § 2337 ............................................................................................................... 21, 24
18 U.S.C. 922 .......................................................................................................................... 11
21 U.S.C. 802 .......................................................................................................................... 11
28 U.S.C. § 1346(b) .................................................................................................................. 3
Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War, Aug.
12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287.................................................................. 22, 24
Organization of American States Convention on Terrorism done at Washington February 2,
1971, 27 U.S.T. 3949 ........................................................................................................ 23
Texas Penal Code §7.02 .......................................................................................................... 18
Other Authorities
162 Cong. Rec. S6168 (2160) (statement of Sen. Cornyn) .................................................... 25
Memorandum in Opposition to Motion to Dismiss - iv

Danielle Weatherby, Opening the “Snake Pit”: Arming Teachers in the War Against School
Violence and the Government-Created Risk Doctrine, 48 Conn. L. Rev. 119, 135 n.95
(2015) ................................................................................................................................ 13
FBI DOMESTIC INVESTIGATIONS AND OPERATIONS GUIDE ................................................... 7, 8
Letter from Sen. Charles E. Grassley, Chairman of the Senate Judiciary Committee, to James
B. Comey, Jr., FBI Director, April 27, 2017 .................................................................... 15
Rutgers Law, Antiterrorism Act of 1990 ................................................................................ 24
Statement of the Representative of the United States before the 6th Committee of the UNGA,
24 October 2004, U.N. GAOR, 59th Sess., 13th mtg. at ¶ 58, U.N. Doc. A/C.6/59/SR.13
(Oct. 25, 2004) .................................................................................................................. 23
UNDERCOVER AND SENSITIVE OPERATIONS UNIT: ATTORNEY GENERAL’S GUIDELINES ON FBI
UNDERCOVER OPERATIONS §IV.A.(2)................................................................................. 7
WILLIAM J. KROUSE, CONG. RESEARCH SERV., TERRORIST SCREENING AND BRADY
BACKGROUND CHECKS FOR FIREARMS, RL33011 12 (2007)............................................. 11
Treatises
Restatement (Third) of Foreign Relations § 404 .................................................................... 23
Regulations
28 CFR 25.6(c)(1)(4)(C) ......................................................................................................... 11
Memorandum in Opposition to Motion to Dismiss - v

SUMMARY OF ARGUMENT
Bruce Joiner has provided a highly detailed complaint that more than satisfies the
plausibility requirement of Iqbal,1 outlining “facts . . . that, taken as true, are suggestive of illegal
conduct.”2 In the thirty-eight pages of Plaintiff’s Original Complaint, with careful attention to
detail, Mr. Joiner has provided a plausible, and not just conceivable, factual background to support
the Complaint’s allegations. Prematurely weighing the evidence at the pleading stage, Defendant
dismisses Plaintiff’s facts and spins the complaint in its favor. But Iqbal does not apply a more
likely than not standard at the pleading stage.3 Indeed, the Supreme Court cautioned that “[t]he
plausibility standard is not akin to a probability requirement.”4
The United States argues that Plaintiff’s assault claim is based on “rank speculation” and
not plausible facts. But Defendant ignores the serious connection between its agent UCE-1, the
ISIS shooters – Elton Simpson and Nadir Soofi – and the cell-leader Erick Jamal Hendricks.
In detail, days before the attack, UCE-1 texted shooters Simpson and Soofi instructions to
“tear up Texas” in response to the event in Garland. Shortly before the attack, UCE-1 texted
Hendricks to let him know that UCE-1 was “in the vicinity” of the Curtis Culwell Center.5 Simpson
and Soofi were armed with three assault rifles, three handguns, and 1,500 rounds of ammunition,6
1
Ashcroft v. Iqbal, 556 U.S. 662 (2009).
2
Id. at 696 (citing Atlantic Corp. v. Twombly, 550 U.S. 544 (2007))
3
McCauley v. City of Chi., 671 F.3d 6 (7th Cir. 2011) (“Although the Iqbal opinion used phrases such as "more likely,"
and "as between," it should not be read to say that a plaintiff should lose on the pleadings because a defendant had a
more plausible alternative explanation. Rather, in light of the alternative explanation, plaintiff needed to "allege more
by way of factual content to 'nudg[e]' his claim of purposeful discrimination 'across the line from conceivable to
plausible.”)
4
Iqbal, 556 U.S. 662 at 678
5
Hare Affidavit ¶72 (Case 1:16-mj-02128-KSM, Doc. 1-1, filed Aug. 3, 2016) (hearinafter “Hare Aff.”).
6
FBI: 3 men plotted for months before cartoon contest attack, ASSOCIATED PRESS, June 19, 2015, available at
http://www.dailymail.co.uk/wires/ap/article-3131117/FBI-3-men-plotted-months-cartoon-contest-attack.html (“FBI
Special Agent Dina McCarthy said during testimony that Simpson and Soofi later used the same three rifles they shot
in the desert, along with three handguns and 1,500 rounds of ammunition, and drove to Texas to attack the event
featuring cartoons deemed offensive to Muslims.”).
Memorandum in Opposition to Motion to Dismiss - 1

and when Hendricks texted UCE-1 and asked “what u got with u?” UCE-1 responded “[t]ools of
the trade” (i.e., weapons) and “not a small handtool.”7 At the same time he was texting Hendricks
about “police/agents,” “security,” and “activity outside of the center,”8 UCE-1 took a cell-phone
photo of the security guard and police officer who would come under fire just seconds after the
photo was taken.9 The last text from UCE-1 to Hendricks stated “OK let me let u go n see how
close I can get,” and “[s]hortly thereafter, Simpson and Soofi committed the attack” on the Plaintiff
at the vehicle entrance checkpoint.10 UCE-1 was in a car directly behind Simpson and Soofi when
they started shooting.11
These facts (all taken from the sworn testimony of the Defendant’s own agents) provide
far more than “rank speculation” about UCE-1’s tortious conduct “at or immediately before the
event.” Indeed, this is the exact type of factual pleading that the Court required in Iqbal. Plaintiff
has provided sufficient facts for the Court to plausibly determine that the United States committed
assault by assisting and encouraging the attack.
STANDARD OF REVIEW
“A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure is viewed
with disfavor and is rarely granted.”12 When adjudicating such a motion, the court construes the
complaint in favor of the plaintiff, treats all facts stated therein as true, and must determine whether
7
Hare Aff. at ¶ 73.
8
Id. at ¶ 72.
9
Reply Supplemental Brief in Support of Motion for New Trial, United States v. Kareem 2 (Case 2:15-cr-00707-SRB,
Doc. 452, filed Dec. 16, 2016) (hereinafter “Kareem Reply”) (discussing photos “taken from a phone camera by the
Undercover Agent shortly before Simpson and Nadir Soofi (“Soofi”) attacked security officials at the Convention
Center. Both pictures include the western access point of the southern parking lot of the Convention Center, which is
the location of the attack”).
10
Hare Aff. at ¶ 73.
11
See Kareem Reply, supra note 9 at 3 (stating that UCE-1 had “been driving behind Simpson and Soofi’s vehicle at
the time of the attack”).
12
Manquno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 275 (5th Cir. 2002).

the complaint states any valid claim for relief when viewed in the light most favorable to the
plaintiff.13 When considering a motion to dismiss under Rule 12(b)(6) in conjunction with a motion
to dismiss for lack of subject matter jurisdiction, dismissal is only proper when it appears the
plaintiffs cannot prove any set of facts in support of their claim which would entitle them to relief.14
Furthermore, when a Rule 12(b)(1) motion is based on the discretionary function
exception, courts will interpret the exception narrowly, as a broad interpretation “would not only
eviscerate the second step of the analysis set out in Berkovitz and Gaubert, but it would allow the
exception to swallow the FTCA’s sweeping waiver of sovereign immunity.”15 Of particular
relevance, the courts are hesitant to find that the Government may exercise discretion in choosing
when to warn citizens of danger, because “every failure to warn [. . .] can be couched in terms of
policy choices based on allocation of limited resources.”16
ARGUMENT
I. PLAINTIFF’S CLAIMS ARE NOT BARRED BY THE DISCRETIONARY

FUNCTION EXCEPTION 17
The FTCA18 generally authorizes suits against the United States for damages “for injury or
loss of property, or personal injury or death caused by the negligent or wrongful act or omission
of any employee of the Government while acting within the scope of his office or employment,
13
Collins v. Morgan Stanly Dean Witter, 24 F.3d 496, 498 (5th Cir. 2000).
14
Pan-Am. Life Ins. Co. v. Bergerson, 82 Fed. Appx. 388, 390 (5th Cir. 2003).
15
Cope v. Scott, 45 F. 3d 445, 449 (D.C. Cir. 1995); citing United States v. Gaubert, 499 U.S. 315, 322-23 (1991);
Berkovitz v. United States, 486 U.S. 531, 536 (1988)).
16
O’Toole v. United States, 295 F.3d 1029, 1037 (9th Cir. 2002).
17
Defendant has alleged that the Discretionary Functions doctrine is a jurisdictional defense under Rule 12(b)(1).
Plaintiff therefore has relied on evidence outside of his pleading related to this argument, including the FBI’s policies
and procedures.
18
28 U.S.C. § 1346(b).

under circumstances where the United States, if a private person, would be liable to the claimant
in accordance with the law of the place where the act or omission occurred.”19
Here, Defendant’s motion to dismiss regarding the discretionary function doctrine should
be denied for two reasons. First, Defendant’s argument is premature because the Plaintiff should
be entitled to discovery prior to the Court determining if the discretionary function exception
applies to this case. Second, even under the limited evidence that is already available, the
discretionary function exception does not apply to the Plaintiff’s claims.
A. Defendant’s argument is premature because Plaintiff should be entitled to discovery

prior to the Court determining if the discretionary function exception applies to this
case
The United States Supreme Court has emphasized that it is “the nature of the conduct,
rather than the status of the actor, that governs whether the discretionary function exception applies
in a given case.”20 And as explained by the Tenth Circuit in the following, determining if this
doctrine applies is particularly fact-sensitive:
A review of these cases, and others, reveals that the determination of whether or
not a given act by the United States is discretionary, and so excluded from coverage
under the Federal Torts Claims Act is very much a factual issue, depending upon
evidentiary circumstances present in each individual case.21
Following this logic, the District Court of Kansas addressed this exact issue and denied the United
States’ motion to dismiss pending additional discovery:
Because the factual issues and the evidence to support those issues are not now
knowable to the plaintiff, the court is not inclined to foreclose her avenue to
explore the matter further. In addition, the court is persuaded by those cases
which adhere to the following position. When a federal statute serves as both
the basis for the court’s subject matter jurisdiction and the plaintiff’s substantive
19
Berkovitz v. United States, 486 U.S. 531, 535 (1988).
20
United States v. Varig Airlines, 467 U.S. 797, 813 (1984).
21
Howard Routh & Sons v. United States, 668 F.2d 454, 456 (10th Cir. 1981).

claim, the motion to dismiss for lack of jurisdiction should not be granted unless
the claim is immaterial, insubstantial, or frivolous. 22
The Fifth Circuit has “aptly described the underlying rationale for this approach”23 by stating that:
[N]o purpose is served by indirectly arguing the merits in the context of federal
jurisdiction. […] This refusal to treat indirect attacks on the merits as Rule
12(b)(1) motions provides, moreover, a greater level of protection to the plaintiff
who in truth is facing a challenge to the validity of his claim.24
In this case, by conducting discovery, Plaintiff will be able to provide a more sufficient
record for the Court to rule on the crucial factual questions pertinent to the discretionary function
exception. Specifically, discovery would help the Court determine (1) whether an FBI agent
assisted Simpson and Soofi in obtaining the weapons used in the attack, (2) whether the FBI
allowed the weapon that injured the Plaintiff to be unlawfully sold to the terrorists, (3) whether
UCE-1 received, as required by FBI policy, high-level authorization to engage in “Otherwise
Illegal Behavior” that involved a significant risk of violence or physical injury, and (4) to what
extent UCE-1 coordinated with the terrorists in relation to the attack.
B. The discretionary function exception does not apply to the Plaintiff’s claims
Next, even based on the factual record available to Plaintiff prior to discovery, the
discretionary function exception does not apply to Plaintiff’s claims. In its motion, Defendant
argues that the FBI has legal discretion to participate in terrorist attacks against American citizens
during undercover operations. Defendant claims that actions such as the FBI “lifting a ‘hold’ on
the sale of a handgun to Soofi, [and] UCE-1 ‘inciting’ Simpson to ‘tear up Texas,’ dressing in
22
St. Mary of the Plains v. Higher Ed. Loan Program, 724 F. Supp. 803, 805 (D. Kan. 1989). See also Holt v. United
States, 46 F.3d 1000, 1003 (10th Cir. 1995) (“When a jurisdictional question is intertwined with the merits of the case
and subject matter jurisdiction is dependent on the same statute which provides the substantive claim in the case, a
Rule 12(b)(1) motion to dismiss is inappropriate.”).
23
Kerns v. U.S., 585 F.3d 187, 192 (4th Cir. 2009). The Kerns quoted the Fifth Circuit case in supporting its assertion
that “when the jurisdictional facts and the facts central to a tort claim are inextricably intertwined, the trial court should
ordinarily assume jurisdiction and proceed to the intertwined merits issues.” Id. at 193 (emphasis added).
24
Williamson v. Tucker, 645 F.2d 404, 415 (5th Cir. 1981).

Middle Eastern attire and ‘reconnoitering on behalf of the terrorist and possibly directing them to
an undermanned vehicle entrance where the attack took place’”25 are “the very sort of undercover
activity that the discretionary function exception protects.”26 In arguing that it has the prerogative
to weigh “harm to innocent victims resulting from a covert operation” against the need for
“maintaining secrecy,”27 Defendant is effectively claiming that the FBI had discretion to allow
potentially hundreds of American citizens to be attacked in a dubious attempt28 to maintain UCE-
1’s cover. Put simply, Defendant’s motion to dismiss would provide any law enforcement officer
immunity to aid or assist a terrorist massacre on American soil, in the name of “maintaining
secrecy.” This is simply not the law.
In more detail, this argument directly contrasts with federal court decisions regarding the
discretionary functions doctrine. The FBI’s actions fail both prongs of the Gaubert test for
determining whether the discretionary function exception applies because (i) the FBI’s actions
violated agency policy and federal law, and (ii) the judgment exercised by the FBI was not of the
kind that Congress intended to shield from civil claims.
1. Gaubert test, first part: FBI violations of legally-prescribed courses of action
Under the first element of the Gaubert test, the Court must determine whether the act in
question actually “involv[es] an element of judgment or choice,” or if “a federal statute, regulation
Defendant’s Memorandum in Support of Motion to Dismiss 14 (Doc. 9, filed Jan. 11, 2018) (hereinafter “Def.
25
Motion to Dismiss”).
26
Id. at 24.
27
Id. at 14.
28
When UCE-1 implausibly “escaped” from the heavily-policed scene of the shoot-out, it was only a matter of time
before the terrorists he was communicating with would begin to question his account. Hendricks showed immediate
suspicions, keeping his communications with UCE-1 “brief” in the days after the attack and “focused on UCE-1’s
presence in Garland, Texas on or about May 3, 2015” and whether UCE-1 had been compromised. Hendricks abruptly
cut off communication with UCE-1 only 10 days after the attack, ending with the ominous message “The 6th pillar
[jihad] is not for the weak.” Hare Affidavit ¶77-80 (Case 1:16-mj-02128-KSM, Doc. 1-1, filed Aug. 3, 2016)
(hereinafter “Hare Aff.”).

or policy specifically prescribes a course of action for an employee to follow.”29 And based on the
facts here, the FBI did not have discretion to participate in the terror attack in Garland, as agency
policy regarding undercover operations involving violence prescribes a course of action that the
agency failed to take. In addition, the FBI did not have discretion to approve the gun sale to Soofi,
as the approval violated both federal statutes and agency policy.
i. FBI violated agency policy relating to undercover operations
As an initial matter, the FBI guidelines require that “[w]hen an undercover employee learns
that persons under investigation intend to commit a violent crime, he or she shall try to discourage
the violence.”30 Far from trying to discourage the violence at Garland, UCE-1 incited Simpson to
“tear up Texas,” reassured the terror cell recruiter that he was armed with the “[t]ools of the trade”
(i.e., weapons) and “not a small handtool” as he was circling the convention center with Simpson
and Soofi moments before the attack,31 and photographed the Plaintiff just before Simpson and
Soofi opened fire on him.32
Under FBI policy, “Otherwise Illegal Activity (OIA) is conduct in the course of duties by
an FBI employee (to include an undercover employee (UCE)) […] which constitutes a crime under
local, state, or federal law if engaged in by a person acting without authorization.”33 Though the
FBI has discretion to engage in some types of OIA, “[c]ertain types of OIA cannot be authorized,
29
Gaubert, 499 U.S. at 322.
30
UNDERCOVER AND SENSITIVE OPERATIONS UNIT: ATTORNEY GENERAL’S GUIDELINES ON FBI UNDERCOVER
OPERATIONS §IV.A.(2), available at https://www.justice.gov/archives/ag/undercover-and-sensitive-operations-unit-
attorney-generals-guidelines-fbi-undercover-operations.
31
Hare Aff. ¶ 4, August 2, 2016.
32
See Kareem Reply, supra note 9 at 2-3.
33
FBI DOMESTIC INVESTIGATIONS AND OPERATIONS GUIDE §17.1, available at
https://vault.fbi.gov/FBI%20Domestic%20Investigations%20and%20Operations%20Guide%20%28DIOG%29/fbi-
domestic-investigations-and-operations-guide-diog-2011-version/fbi-domestic-investigations-and-operations-guide-
diog-october-15-2011 (emphasis added).

such as […] participation in an act of violence.”34 By inciting Simpson to commit an act of
violence, accompanying the terrorists to the event, and then reconnoitering and possibly even
directing35 the terrorists to the undermanned back entrance where the assault on the Plaintiff took
place, UCE-1 participated in an act of violence when he had no discretion to do so under FBI
guidelines. Those actions, therefore, fail the first prong of the Gaubert test.
Finally, even “participation in otherwise illegal activity” that merely “involves a significant
risk of violence or physical injury” requires authorization “by the Director, Deputy Director, or
designated Executive Assistant Director after review by the CUORC [Criminal Undercover
Operations Review Committee].”36 The plot to assault the Garland conference clearly “involve[d]
a significant risk of violence or physical injury,” yet the Defendant has provided no evidence that
the FBI leadership authorized the OIA according to procedure. The agency has no discretion to
carry out such risky operations without high-level authorization. If such authorization was lacking,
UCE-1’s actions do not fall under the discretionary function exception.
The following shows how seriously the FBI guidelines treat violence during an undercover
operation:
If an undercover operation results in violence in the course of criminal activity,

and an undercover employee […] has participated in any manner in the criminal
activity, the SAC shall immediately inform the appropriate Federal prosecutor
and FBIHQ, which shall inform the Assistant Attorney General in charge of the
Criminal Division as soon as possible. 37
34
Id. See also id at §17.7(A) (“The following activities may not be authorized as OIA: Directing or participating in
acts of violence.”).
35
See infra text accompanying notes 80-86.
36
FBI DOMESTIC INVESTIGATIONS AND OPERATIONS GUIDE at §17.5(2).
37
UNDERCOVER AND SENSITIVE OPERATIONS UNIT: ATTORNEY GENERAL’S GUIDELINES ON FBI UNDERCOVER
OPERATIONS at §IV.H.(5)(e).

But rather than open a criminal investigation into why the undercover operation at Garland resulted
in violence, the FBI disregarded agency policy and attempted to shield itself and its agents from
any accountability for the attack.38
Since FBI policy prohibited the agency and UCE-1 from engaging in the actions the
Defendant claims are covered by the discretionary function exception, this argument fails the first
part of the Gaubert test.
ii. FBI violated federal statute and agency policy relating to gun purchase
background checks
Though UCE-1’s activities alone are sufficient to satisfy a Gaubert challenge, the
Defendant made a substantial effort to justify its actions in allowing Soofi to obtain a handgun,39
so those arguments will be rebutted here. The Defendant seeks to defend itself from liability by
arguing that “the purchase of this particular handgun is relevant only if it was used to shoot
Plaintiff.”40 Like all other questions surrounding the Garland attack, “[o]fficials at the Justice
Department and the FBI [have] declined to answer questions about whether the 9-mm pistol was
one of the guns used in the Garland attack or seized at Soofi’s apartment.”41
The Defendant also attempts to exonerate itself by arguing that one of the “source
materials” cited in the Complaint states that “the handgun purchased by Soofi was not part of the
infamous Fast and Furious operation.”42 The article cited by the Defendant concluded that “[t]he
38
As noted in the complaint, as UCE-1 was being questioned by police after the attack, FBI agents stopped the
interview, placed a hood over UCE-1’s head, then led him away to an undisclosed location. The FBI then confiscated
all video footage of the event. UCE-1’s role was hidden from the public for more than a year after the attack. Compl.
¶ 42.
39
See Def. Motion to Dismiss at 18-21.
40
Id. at 18.
41
Richard A. Serrano, Gunman in Garland attack linked to Fast and Furious sting in ’10, DALLAS MORNING NEWS,
Aug. 1, 2015, https://www.dallasnews.com/news/garland/2015/08/01/gunman-in-garland-attack-linked-to-fast-and-
furious-sting-in-10 (emphasis added).
42
Def. Motion to Dismiss at 18, n.11.

weapon was sold during the time Fast and Furious was in effect but was not part of the sting”
because “[a]s the owner of a small pizzeria, [Soofi] would not have been the primary focus of
federal authorities, who back then were looking for smugglers and drug lords.”43 The article,
however, fails to take into account that when the sale took place, Soofi was living with Simpson,
the focus of an intense, ongoing federal investigation. The owner of the gun shop was ordered to
“[s]ell guns to every illegal purchaser who walks through the door,”44 not just to “smugglers and
drug lords.” The gun shop chosen by federal authorities for the operation is not only located in a
city with drug cartel activity, but is also a mere five miles away from a large mosque with long-
standing ties to terrorism, and which was the target of an ongoing undercover FBI investigation
(with Simpson at the center) at the time Fast & Furious was initiated.45 The Garland handgun is
not the only firearm used in a terrorist attack that has been connected to Fast & Furious, as several
of the firearms used in the Paris attack have also been linked to the operation.46 Thus, the article’s
conclusion that the sale was not part of the sting because it was not drug-related is without basis.
The Defendant also claims that “[e]ven if Plaintiff was shot by the handgun purchased by
Soofi, the FBI’s involvement in the background check process for the sale of firearms is protected
by the discretionary function exception.”47 The Defendant goes on to undermine its own claim by
noting that the FBI “has no authority” to exercise discretion in the response it gives to firearm
43
Richard A. Serrano, Garland, Texas, shooter bought gun in 2010 during Fast and Furious, L.A. TIMES, Aug. 1,
2015, http://www.latimes.com/nation/la-na-garland-gun-20150801-story.html.
44
Richard A. Serrano, Gun store owner had misgivings about ATF sting, LA TIMES, Sept. 11, 2011,
http://articles.latimes.com/2011/sep/11/nation/la-na-atf-guns-20110912 (reporting that federal agents “installed a
secret phone line and hidden cameras in a ceiling panel and wall at Andre Howard’s Lone Wolf gun store. They gave
him one basic instruction: Sell guns to every illegal purchaser who walks through the door.” (emphasis added)).
45
See Compl. ¶ 8-20.
46
See id. ¶ 42 and accompanying citations.
47
Def. Motion to Dismiss at 18.

dealers after conducting the background check.48 Under federal regulations, the FBI must give a
“Denied” response “when at least one matching record is found […] that provides information
demonstrating that receipt of a firearm by the prospective transferee would violate 18 U.S.C. 922
or state law.”49
Prior to purchasing the weapon, Soofi had been “charged in about 20 court cases,” and had
convictions for drug and assault crimes.50 § 922 holds it is unlawful to sell a gun to someone who:
(1) is under indictment for, or has been convicted in any court of, a crime
punishable by imprisonment for a term exceeding one year; […]
(3) is an unlawful user of or addicted to any controlled substance (as defined in
section 102 of the Controlled Substances Act (21 U.S.C. 802)); […]
(9) has been convicted in any court of a misdemeanor crime of domestic
violence.
Soofi’s criminal record clearly reflected that he was an “unlawful user” of controlled
substances. It is unclear at this point whether Soofi’s assault conviction was domestic in nature, or
if any of his numerous convictions were felonies. Discovery may reveal that Soofi had three
separate types of offenses on his criminal record that would bar him from legally purchasing a gun.
The FBI’s decision to lift the block after only 24 hours is highly unusual,51 and likely
violated agency policy regarding attempted gun purchases by suspected terrorists. In February
2004, the Department of Justice began checking prospective gun buyers against the FBI’s terrorist
watch list.52 “A match in the terrorist database triggers an automatic 72-hour delay, even if there
48
Id. at 21.
49
28 CFR 25.6(c)(1)(4)(C).
50
Jennifer Dobner, Texas gunman attended U. of U. from ‘98 to ‘03, SALT LAKE TRIBUNE, May 5, 2015,
http://archive.sltrib.com/article.php?id=2479109&itype=CMSID.
51
See Eugene Kiely & Robert Farley, Suspected Terrorists and Guns, FACTCHECK.ORG, June 20, 2016,
https://www.factcheck.org/2016/06/suspected-terrorists-and-guns/ (analyzing federal background check policies and
finding that when people on the terror watchlist ultimately receive a “proceed” response, it is “typically in three days”
because federal authorities use the entire 72-hour delay to search for prohibiting factors (FactCheck.org is a project of
the Annenberg Public Policy Center of the University of Pennsylvania)).
52
WILLIAM J. KROUSE, CONG. RESEARCH SERV., TERRORIST SCREENING AND BRADY BACKGROUND CHECKS FOR
FIREARMS, RL33011 12 (2007).

are no other so-called ‘prohibiting factors’” under § 922.53 This policy is designed to give “FBI
Headquarters’ Counterterrorism Division and FBI Special Agents in the field” time to make a
“coordinated effort […] to research possibly unknown prohibiting factors,”54 with the reasoning
that “being on [a terror watch]list suggests that there may be an underlying factor that would bar a
prospective background check applicant from possessing a firearm.”55 Though most inquiries fail
to uncover grounds for issuing a “Denied” response to suspected terrorists, the agency “typically”
uses its entire three-day window to conduct due-diligence.56
To summarize, the agency did not issue a “Denied” response despite Soofi’s record, lifted
the hold without using the entire 72-hours for investigation as required by agency policy, and
approved the gun purchase at the shop where the agency was permitting illegal gun sales. These
facts indicate that the agency’s actions do not fall under the discretionary function exception.
iii. In addition, the FBI violated the Due Process Clause
Even if the Defendant could meet its burden in this case and provide evidence that it did
not violate agency policy or federal law, federal courts57 have clarified that the discretionary
function exception does not apply to constitutional violations.58 Multiple federal circuits have held
that “[s]tate officials may violate the Due Process Clause when their affirmative actions directly
53
Kiely & Farley, supra note 51. See also id. at 13.
54
Krouse, supra note 52 at 13.
55
Id. at 15.
56
Kiely & Farley, supra note 51.
57
Sutton v. United States, 819 F.2d 1289, 1293 (5th Cir. 1987) (“[A]ction does not fall within the discretionary
function exception of § 2680(a) when governmental agents exceed the scope of their authority as designated by statute
or the Constitution.”).
58
Loumiet v. U.S., No. 15-5208, 10-11 (Court of Appeals, D.C. Cir. 2016) (“[T]he FTCA’s discretionary-function
exception does not provide a blanket immunity against tortious conduct that a plaintiff plausibly alleges also flouts a
constitutional prescription. At least seven circuits, including the First, Second, Third, Fourth, Fifth, Eighth, and Ninth,
have either held or stated in dictum that the discretionary-function exception does not shield government officials
from FTCA liability when they exceed the scope of their constitutional authority”).

increase the vulnerability of citizens to danger or otherwise place citizens in harm’s way.”59
Though the Fifth Circuit “has consistently side-stepped the question of whether to adopt” the state-
created danger theory,60 it has shown some openness to doing so if the right case presents itself.61
Under the “state-created danger” theory, a plaintiff must prove that:
1) he is a member of a limited, precisely definable group;

2) the government conduct put him at significant risk of serious, immediate, and
proximate harm;
3) the risk was obvious or known to the government;
4) the government acted recklessly in conscious disregard of the risk; and
5) in total, the government’s conduct shocks the conscience.62
Proof of “deliberate indifference” to the existence of a known, “substantial risk of serious
harm” is sufficient to meet the “shock the conscience” standard.63 The Supreme Court has equated
the civil tort of “deliberate indifference” to “criminal recklessness.”64
In this case:
1) Mr. Joiner was “a member of a limited, precisely definable group”: the security
guards at the event, who would be called upon to engage terrorists;
2) the FBI’s active involvement in the facilitation and execution of the attack “put
[Mr. Joiner] at significant risk of serious, immediate, and proximate harm;”
3) the risk was both obvious and known to the FBI;
4) the FBI “acted recklessly in conscious disregard of the risk” by continuing the
undercover investigation and failing to warn Mr. Joiner right up to the point
when Simpson pulled the trigger; and
5) in total, the FBI’s “deliberate indifference” to the existence of a known,
“substantial risk of serious harm” is sufficient to “shock the conscience,”
59
Ewolski v. City of Brunswick, 287 F.3d 492, 509 (6th Cir.2002).
Danielle Weatherby, Opening the “Snake Pit”: Arming Teachers in the War Against School Violence and the
60
Government-Created Risk Doctrine, 48 CONN. L. REV. 119, 135 n.95 (2015).

61
See, e.g., Estate of C.A. v. Castro, 547 F. App’x 621, 626–27 (5th Cir. 2013) (“[T]he district court did not hold that
the state-created danger doctrine was ‘not viable’ in the Fifth Circuit. Rather, it evaluated the doctrine, noted that the
circuit has yet to adopt the theory, and concluded that ‘the present case would not appear to provide the right vehicle
for the Fifth Circuit to adopt the state- created danger doctrine’ because ‘[t]he plaintiffs would fail to satisfy one or
more of the necessary elements suggested in Covington.’ We agree.”).
62
Hart v. City of Little Rock, 432 F.3d 801, 805 (8th Cir. 2005).
63
Id. at 806.
64
Farmer v. Brennan, 511 U.S. 825, 836-40 (1994).

particularly UCE-1’s actions in taking a photograph of the Plaintiff knowing

that he was about to come under fire.
The government’s actions, therefore, violated the Due Process Clause and thus do not fall under
the discretionary function exception.
2. Gaubert test, second part: Congress did not intend for the discretionary function
exception to shield the FBI’s actions in question
Under the second element of the discretionary functions test, that the Court must determine
whether Congress intended to shield the alleged conduct when it designed the discretionary
function exception.65 Defendant’s own interactions with Congress show that they have no
confidence in this assumption. If the Defendant truly believed that it was authorized by Congress
to engage in the acts in question, it would not have to hide information about its conduct from
Congress.
i. Congress did not intend for the discretionary function exception to shield the
FBI’s actions in the undercover Garland operation
One of the fundamental roles of our elected officials and bureaucracy at large is to
protect American citizens. It cannot be the case that Congress intended to give the FBI discretion
to conduct investigations that would actually lead to real-life terrorist attacks, but the Defendant is
essentially making exactly that argument.
Furthermore, the FBI has come under fire from Congress for misleading66 elected officials
about its advance knowledge of the plot to attack Garland. Senator Ron Johnson, the Chairman of
the Senate Committee on Homeland Security and Governmental Affairs “first started writing
letters about [the Garland attack] back in 2015,” but though he “has been trying to get information
65
Def. Motion to Dismiss at 13 (“Regarding the second part of the Gaubert test, it is indisputable that ‘Congress did
not intend to provide for judicial review of the quality of investigative efforts.’”)
66
Malia Zimmerman & William Lajeunesse, Senate leader investigating possible FBI deception about Texas terror
attack, FOX NEWS, April 20, 2017, http://www.foxnews.com/politics/2017/04/20/senate-leader-investigating-
possible-fbi-deception-about-texas-terror-attack.html.

from the FBI and the Justice Department for over a year and a half, [he] has had little to show for
his efforts.”67
The Chairman did not learn about UCE-1’s involvement in the attack until 60 Minutes
broke a story about it. “This is not something that should be revealed on ‘60 Minutes’,” Johnson
said after the story aired. “This should be something that the FBI comes forward and tells the
oversight committee.”68
After the information about UCE-1 became public, the FBI came “under mounting pressure
from the Senate to […] explain why an FBI agent was at the scene and did nothing.”69 In a Senate
committee hearing, Comey reassured concerned senators “he would be willing to explain media
reports that suggest the FBI may have had advance knowledge of the attack. But he only said he
would do that in a classified briefing, and no briefing has been set.”70 The FBI, however,
“continues to stonewall Chairman Johnson’s requests for information by refusing to provide a
briefing to committee staff,” the Chairman of the Senate Judiciary Committee wrote to Comey,
adding that “[t]he FBI’s complete lack of transparency to Congress on this issue is unacceptable.”71
The intense scrutiny of Congress, coupled with the FBI’s refusal to turn over information,
clearly indicate that the agency’s actions were not of the type that Congress intended to shield.
67
Todd Shepherd, Pressure builds on FBI to explain Garland terrorist attack, WASH. EXAMINER, May 6, 2017,
http://www.washingtonexaminer.com/pressure-builds-on-fbi-to-explain-garland-terrorist-attack/article/2622312.
68
Zimmerman & Lajeunesse, supra note 66.
69
Shepherd, supra note 67.
70
Id.
71
Letter from Sen. Charles E. Grassley, Chairman of the Senate Judiciary Committee, to James B. Comey, Jr., FBI
Director, April 27, 2017, available at https://www.grassley.senate.gov/sites/default/files/constituents/2017-04-
27%20CEG%20to%20FBI%20%28Garland%20Texas%20Incident%29.pdf.

ii. Congress did not intend for the discretionary function exception to shield ATF
and FBI violations of background check statutes to allow criminals and terrorists
to purchase guns
In relation to the Garland guns, the Defendant has also attempted to hide information from
Congress, which indicates that the FBI’s activities in this regard are not of the sort over which
Congress intended to grant them discretion. The Chairman of the Senate Oversight Committee
has been seeking answers from the Defendant about the weapons used by Simpson and Soofi. The
“Department of Justice’s response,” however, “contained little specificity and ignored several
important questions.” The Defendant itself notes that “[t]he principal purpose in enacting the 1968
Gun Control Act was to curb crime by keeping ‘firearms out of the hands of those not legally
entitled to possess them because of age, criminal background, or incompetency.’”72 Far from doing
its duty to keep firearms out of the hands of Soofi, the FBI rushed to put the weapon into his hands.
II. THE FBI VIOLATED THE DUTY IT OWED PLAINTIFF UNDER TEXAS LAW
Defendant’s motion to dismiss narrowly frames Plaintiff’s alleged duty to request that the
Court dismiss Plaintiff’s negligence claim. Effectively, Defendant claims that it had no legal duty
to prevent commission of the offense because “Texas law generally imposes no duty to take action
to prevent harm to others absent certain special relationships or circumstances.”73 Defendant,
however, did have a duty to take action to prevent the offense under Texas law. Indeed, the
Supreme Court of Texas has held that “the common law recognizes the duty to take affirmative
action to control or avoid increasing the danger from another’s conduct which the actor has at least
partially created.”74
72
Def. Motion to Dismiss at 19, citing Huddleston v. United States, 415 U.S. 814, 824 (1974).
73
74
El Chico Corp. v. Poole, 732 S.W.2d 306, 312 (Tex. 2007). See also Doe v. SmithKline Beecham Corp., 855 S.W.2d
248, 256 (Tex. Ct. App.) (citing id. in holding that“[i]f an individual has ‘at least partially created the danger’ in issue,
he is under an affirmative duty to act”).

In this case, Defendant “at least partially created” the danger the Plaintiff faced from
Simpson and Soofi. UCE-1 proactively helped Hendricks recruit Simpson into the ISIS cell, and
then encouraged Simpson to “tear up Texas.” UCE-1, dressed in “Middle Eastern attire,”
accompanied Simpson and Soofi when they carried out the attack. He reconnoitered and provided
intelligence to the terrorists about security at the event. He took a photo of the Plaintiff at an
undermanned vehicle entrance and almost certainly texted it to Hendricks, either to receive
approval to begin the attack at that entrance or because he anticipated that the Plaintiff would be
murdered and Hendricks could then spread the photo online as an ISIS propaganda trophy.
While the above conduct is enough to indicate the presence of a duty on the part of the
Defendant, in relation to weapons, the Defendant proactively lifted the hold on the handgun sale
to Soofi in violation of federal law and agency policy, the terrorists lived near the Fast & Furious
gun shop when they obtained an assault weapon, and the Defendant refused to answer when the
Chairman of the Senate Oversight Committee asked if a federal agent “direct[ed], intimate[d], or
suggest[ed] to Simpson or Soofi to purchase firearms.”
Because the Defendant “at least partially created” the danger that led to the Plaintiff’s
injury, under Texas tort law the Defendant had “the duty to take affirmative action to control or
avoid increasing the danger from [Simpson and Soofi’s] conduct.”
III. THE FBI IS LIABLE FOR CIVIL ASSAULT UNDER TEXAS TORT LAW
The Defendant contends that “[b]ecause Plaintiff was shot by Simpson or Soofi, not the
FBI, the elements of assault are not met.” The Defendant recognizes that, “[u]nder Texas law, the
elements for a tort claim of assault are the same as for the crime of assault.”75 Perplexingly, the
75
See Johnson v. Davis, 178 S.W.3d 230, 240 (Tex. App. 2005).

Defendant then goes on to argue that civil liability does not extend to those who commit assault
under Texas Penal Code §7.02.
In making this argument, the Defendant cites an off-point case that did not involve assault
as the crime underlying §7.02(a)(2) and (3), where the court held that “the Penal Code does not
create private causes of action.”76 In a case decided five years later, that very same court cited the
Penal Code in holding that “[t]o establish a prima facie claim for civil assault, the plaintiff must
establish the same elements required for criminal assault.”77 The Defendant’s claim that a person
guilty of assault under §7.02(a)(2) and (3) faces no civil liability is entirely without basis.
Putting aside the Defendant’s attempt to split technical hairs by distinguishing between
assault under §7.02 and §22.01 of the Penal Code, Texas caselaw is clear in that:
[w]here one person assists another in making an assault, both are principals and
liable in damages for any injury inflicted. Anyone who commands, directs,
advises, encourages, procures, controls, aids, or abets a wrongful act by another,
is regarded by the law as being just as responsible for the wrongful act as the
one who actually committed it. 78
The Defendant’s argument that only the direct commission of assault is a tort, therefore, is wholly
without basis.
The Defendant also claims that because the complaint does not state “exactly” what UCE-
1 did “at or immediately before the event,” the assault claim is based on “rank speculation.”79 This
76
A.H. Belo Corp. v. Corcoran, 52 S.W.3d 375, 379 (Tex. Ct. App. 2001).
77
Johnson, 178 S.W.3d at 240.
78
Stein v. Meachum, 748 S.W.2d 516, 518–19 (Tex.App.-Dallas 1988, no writ). See also, e.g., Grandstaff v. City of
Borger, 767 F.2d 161, 168 (5th Cir.1985) (applying this identical definition of assault in a Texas tort case). The
language used by the courts to describe secondary civil liability for assault is very similar to the language used in Tex.
Penal Code Ann. § 7.02(2)-(3), which holds that a person who “solicits, encourages, directs, aids or attempts to aid
the other person to commit the offense” is criminally responsible as well.
79

argument completely ignores the facts pleaded in Plaintiff’s complaint that directly explain UCE-
1’s conduct in this case.
Shortly before the attack, UCE-1 texted Hendricks, the ISIS terror cell leader, to let him
know that he was “in the vicinity” of the Curtis Culwell Center.80 Simpson and Soofi were armed
with three assault rifles, three handguns, and 1,500 rounds of ammunition,81 and when Hendricks
texted UCE-1 and asked “what u got with u?” UCE-1 responded “[t]ools of the trade” (i.e.,
weapons) and “not a small handtool.”82 At the same time he was texting Hendricks about
“police/agents,” “security,” and “activity outside of the center,”83 UCE-1 took a cell-phone photo
of the security guard and police officer who would come under fire less than 30 seconds after the
photo was taken.84 The last text between UCE-1 and Hendricks stated “OK let me let u go n see
how close I can get,” and “[s]hortly thereafter, Simpson and Soofi committed the attack” on the
Plaintiff at the vehicle entrance checkpoint.85 UCE-1 was in a car directly behind Simpson and
Soofi when they started shooting.86 These facts (taken from sworn testimony from the Defendant’s
own agents) provide far more than “rank speculation” about UCE-1’s tortious conduct “at or
immediately before the event.”
The Defendant also asserts that UCE-1’s “tear up Texas” message to Simpson “hardly
constitutes the encouragement of an assault, given its remoteness in time to the event (ten days
80
Hare Aff. at ¶ 72.
81
FBI: 3 men plotted for months before cartoon contest attack, ASSOCIATED PRESS, June 19, 2015, available at
http://www.dailymail.co.uk/wires/ap/article-3131117/FBI-3-men-plotted-months-cartoon-contest-attack.html (“FBI
Special Agent Dina McCarthy said during testimony that Simpson and Soofi later used the same three rifles they shot
in the desert, along with three handguns and 1,500 rounds of ammunition, and drove to Texas to attack the event
featuring cartoons deemed offensive to Muslims.”).
82
Hare Aff. at ¶ 73.
83
Id. at ¶ 72.
84
See Kareem Reply, supra note 9 at 2 (stating that UCE-1 took the photos on a “phone camera”).
85
Hare Aff. at ¶ 73.
86
See Kareem Reply, supra note 9 at 3.

before), the extremely general nature of the comment, and that Simpson actually ‘chastised’ UCE-
1 for saying it.”87 Ten days, however, is not “remote” when one is plotting to end one’s life in a
suicide attack. Furthermore, the comment was not of an “extremely general nature,” as both
Simpson and UCE-1 knew exactly what UCE-1 was referring to (a Charlie Hebdo-style terror
attack on the Draw Mohammed contest). This is the context leading up to UCE-1’s “tear up Texas”
text:
Simpson publicly discussed the upcoming Garland event in a series of tweets

with Mohamed Abdullahi Hassan, an influential ISIS member operating in
Somalia. Simpson began the conversation by tagging Hassan in a tweet that
stated “When will they ever learn? They are planning on selecting the best
picture drawn of Rasulullah (saws) in Texas.” Simpson’s tweet included a link
to a Breitbart article about the “Garland Draw Mohammed” event. Hassan
retweeted Simpson’s tweet, and followed up with his own tweet linking to the
Breitbart article and commented: “The brothers from the Charlie Hebdo attack
did their part. It’s time for brothers in the #US to do their part.” Hassan then
followed up by posting pictures of several jihadis, including the Paris kosher
market shooter, Amedy Coulibaly, with the message: “If only we had men like
these brothers in the #States, our beloved Muhammad would not have been
drawn.”
On that same day, Hendricks noticed Simpson’s tweets about the event in
Garland. He contacted Simpson[, …] then told UCE-1 to contact Simpson[. …]
UCE-1 contacted Simpson per Hendricks’ instructions. After some preliminary
discussion about how long they had been Muslims, they began cryptically
discussing the possibility of “organizing.”88
Finally, Simpson “chastised” UCE-1 not because he disapproved of UCE-1’s idea, but because
they had just been “discuss[ing] the need to be careful when communicating online,” with Simpson
making “multiple references to the presence of spies online.”89 Simpson said they both “kn[e]w
what happened in Paris,” so “tear[ing] up Texas” “goes without saying... No need to be direct.”90
87
88
Compl. ¶ 26-28.
89
Hare Aff. at ¶ 66.
90
Id. at ¶ 67.

In support of this defense, the Defendant cites an unpublished opinion in which a group of
high school students in a diner asked to see a manager because the waitress refused to change their
order of fries.91 When “[i]nformed of the manager’s absence,” a student named McManus
“declared that if the manager were present, he would ‘kick his ass all over the bakery!’” to which
a student named Grimsinger responded, “Yeah!” Later, when the students were leaving the diner,
McManus pushed the waitress onto the ground and injured her. The waitress sued the students—
including Grimsinger—for civil assault. The court held that Grimsinger should not be held liable
for exclaiming “Yeah!” because “this statement cannot be reasonably interpreted as a command,
direction, advice, encouragement, control, or aid to any subsequent act as McManus’s declaration
clearly applied to an absent person whose identity none of the boys knew. [The waitress] never
identified herself to them as the assistant manager.”92
The Defendant’s comparison of a credible ISIS terror threat to this idle adolescent
braggadocio is not only troubling, but also unconvincing. This case is not on-point, as UCE-1 and
Simpson both knew exactly who the target of the threat was (the attendees at the Draw Mohammed
contest), and Simpson ended up assaulting the individuals UCE-1 identified.
IV. UNDER THE GENEVA CONVENTION, THE UNITED STATES HAS WAIVED
“ANY” SOVEREIGN IMMUNITY FOR WILLFUL ATTACKS ON CIVILIANS
The Defendant claims that, under 18 U.S.C. § 2337(1), the United States is immune from
liability for damages resulting from terror attacks carried out by government agencies. Under
international law coupled with federal statutory interpretation principles, however, Congress may
not immunize the United States from liability for government attacks against civilians.
91
Def. Motion to Dismiss at 24, citing Kaiser v. Grimsinger, 1998 WL 35277046 (Tex. App. Aug.13, 1998).
92
Kaiser, 1998 WL 35277046 (emphasis added).

The U.S. war with ISIS93 is governed by the Geneva Convention (IV) relative to the
Protection of Civilian Persons in Time of War.94 Under the Geneva Convention, “[p]ersons taking
no active part in the hostilities”95 are “entitled to claim […] rights and privileges.”96 In regard to
the present case, “[p]rotected persons are entitled, in all circumstances, to respect for their persons,
[…] and shall be protected especially against all acts of violence or threats thereof.”97 The
Convention holds that “wilful killing” or “wilfully causing great suffering or serious injury to body
or health” of a “protected person” are to be considered “[g]rave breaches” of the Convention.98
The treaty holds that “[n]o High Contracting Party shall be allowed to absolve itself […] of any
liability incurred by itself […] in respect of [grave] breaches.”99
Federal courts have recognized that an act of terrorism constitutes a violation of the Geneva
Convention,100 and that Geneva Convention prohibitions against terrorism have become a
customary international law norm.101 Federal courts—including the Fifth Circuit Court of
93
The Obama White House considered the United States to be at war with ISIS under the 2001 Authorization for the
Use of Military Force passed by Congress after the Sept. 11, 2001 terror attacks. Mary Louise Kelly, When The U.S.
Military Strikes, White House Points To A 2001 Measure, NPR, Sept. 6, 2016,
https://www.npr.org/sections/parallels/2016/09/06/492857888/when-the-u-s-military-strikes-white-house-points-to-
a-2001-measure
94
Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T.
3516, 75 U.N.T.S. 287.
95
“Persons taking no active part in the hostilities” include “members of armed forces who have laid down their arms.”
Id. at Art. 3. Plaintiff, being unarmed, was a person “taking no active part in the hostilities” of the War on Terror, and
thus is protected under the Geneva Convention.
96
Id. at Art. 5.
97
Id. at Art. 27.
98
Id. at Art. 147.
99
Id. at Art. 148 (emphasis added).
100
Matter of Extradition of Marzook, 924 F. Supp. 565, 577–78 (S.D.N.Y. 1996) (citing the Geneva Convention in
finding that “[t]he indiscriminate bombing of buses laden with civilians and other such types of attacks targeted at
civilians […] have been universally condemned.”).
101
See Mujica v. Occidental Petroleum Corp., 381 F. Supp. 2d 1164, 1181 (C.D. Cal. 2005), aff’d sub nom. Mujica v.
AirScan Inc., 771 F.3d 580 (9th Cir. 2014) (“Based on the Geneva Conventions and their incorporation into the War
Crimes Act of 1996, the Court holds that there is a customary international law norm against attacks against
civilians.”). See also Almog v. Arab Bank, PLC, 471 F. Supp. 2d 257, 280 (E.D.N.Y. 2007) (finding that despite
debate over the exact definition of “terrorism,” terror attacks “violate a norm of international law, however labeled”);

Appeals102—have also held that a violation of customary international law should be remedied by
tort law.103
The U.S. Supreme Court has repeatedly held that “Congress has no constitutional power to
settle or interfere with rights under treaties,”104 and that “an act of Congress […] can never be
construed to violate neutral rights […] further than is warranted by the law of nations.”105 Federal
courts have also recognized that in “any conflict between the municipal law of the United States,
as exemplified in the statute, and the well-recognized principles of international law there, custom,
the latter must prevail in the determination of the rights of the parties.”106
Restatement (Third) of Foreign Relations § 404 (listing terrorism among the offenses subject to universal jurisdiction);
Organization of American States Convention on Terrorism done at Washington February 2, 1971, 27 U.S.T. 3949
(U.S. Treaty) (stating that acts of terrorism “shall be considered common crimes of international significance”). More
generally, the U.S. Supreme Court has recognized that Geneva Convention requirements are now part of the “clearly
established principle[s] of the law of war.” Hamdi v. Rumsfeld, 542 U.S. 507 (2004); Hamdan v. Rumsfeld, 548 U.S.
557 (2006) (citing Hamdi in holding that the Court had jurisdiction to hear a claim based on a Geneva Convention
violation because the Convention’s requirements “are indisputably part of the law of war”).
Beanal v. Freeport-McMoRan, Inc., 969 F. Supp. 362, 371 (E.D. La. 1997), aff’d, 197 F.3d 161 (5th Cir. 1999)
102
“Universal jurisdiction includes civil tort actions.”

103
Herero People’s Reparations Corp. v. Deutsche Bank, A.G., 370 F.3d 1192, 1195 (D.C. Cir. 2004) (finding that
the assertation that “federal common law should provide a private cause of action for violations of customary
international law” was sufficient to support federal question jurisdiction, noting that “the Supreme Court has yet to
rule on the subject, and the theory has received support in court decisions and law review articles.”); Sosa v. Alvarez-
Machain, 542 U.S. 692, 762–63 (2004) (Breyer, J., concurring) (noting that “the criminal courts of many nations
combine civil and criminal proceedings, allowing those injured by criminal conduct to be represented, and to recover
damages, in the criminal proceeding itself,” and thus universal jurisdiction “necessarily contemplates a significant
degree of civil tort recovery as well”); Restatement (Third) of Foreign Relations § 404 cmt. b. See also Statement of
the Representative of the United States before the 6th Committee of the UNGA, 24 October 2004, U.N. GAOR, 59th
Sess., 13th mtg. at ¶ 58, U.N. Doc. A/C.6/59/SR.13 (Oct. 25, 2004) (recognizing “emerging global consensus that
States and State enterprises [can] no longer claim absolute, unfettered immunity” from universal jurisdiction).
104
Holden v. Joy, 84 U.S. 211, 247 (1872); see also Jones v. Meehan, 175 U.S. 1, 32 (1899) (“The construction of
treaties is the peculiar province of the judiciary; and […] Congress has no constitutional power to settle the rights
under a treaty.”); Chase v. United States, 222 F. 593, 596 (8th Cir. 1915) (“Congress has no power under the
Constitution of the United States to affect rights or titles granted by a treaty.”).
105
Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804).
106
The Rose, 36 Ct. Cl. 290, 301 (1901). See also The Jane, 37 Ct. Cl. 24, 29 (1901) (holding that where “rules of
international law determine and control parties with reference to their rights,” federal law must “gave way to the
international rule”); The Nancy, 27 Ct. Cl. 99, 109 (1892) (holding that international law trumped a federal statute
because “no single State can change the law of nations by its municipal regulations”).

Since the Geneva Conventions provisions have been elevated to customary international
law norms, 18 U.S.C. § 2337(1) must “g[i]ve way to the international rule.”107 Congress, therefore,
has no power to pass statutes absolving itself of “any liability”108 for terror attacks. In addition, 18
U.S.C. § 2337(1) is an unconstitutional “interfer[ence] with rights under treat[y],” as it seeks to
deny Plaintiff recourse for violations of his rights and privileges under the Geneva Convention,
and rights conferred by a treaty cannot be revoked “by mere legislative act.”109 Finally, under the
Charming Betsy principle, which the Supreme Court has recognized as “beyond debate,”110 18
U.S.C. § 2337(1) “can never be construed” to violate the plaintiff’s rights under “the law of
nations.”111
If § 2337(1) is found unconstitutional, the rest of the ATA should be left intact. Both the
ATA and JASTA have severability clauses.112 Furthermore, there is no “strong evidence” that
Congress did not intend § 2337(1) to be severable113-- in fact, the Congressional record suggests
the opposite. In passing the original version of § 2337 (which provided sovereign immunity for
both the federal and foreign governments) as part of the ATA, Congress did not intend to violate
international law, but come into conformity with it.114 At that time, it was widely accepted that
107
Id.
108
Geneva Convention (IV) at Art. 148 (emphasis added).
109
Wilson v. Wall, 73 U.S. 83, 89 (1867). See also Jones, 175 U.S. at 32 (citing Wilson in holding that “[t]he
construction of treaties is the peculiar province of the judiciary; and […] Congress has no constitutional power to
settle the rights under a treaty”).
110
DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr., 485 U.S. 568, 575 (1988).
111
Charming Betsy, 6 U.S. at 118.
112
Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 686 (1987) (“[T]he inclusion of [a severability] clause creates a
presumption that Congress did not intend the validity of the statute in question to depend on the validity of the
constitutionally offensive provision.”).
113
Id. (“[U]nless there is strong evidence that Congress intended otherwise, the objectionable provision can be excised
from the remainder of the statute.”).
114
See Rutgers Law, Antiterrorism Act of 1990, available at
http://njlaw.rutgers.edu/collections/gdoc/hearings/9/91600509/91600509_1.pdf (containing repeated congressional

governments should be immune from tort suits under international law. Since then, however,
international law has evolved. In passing JASTA, the Congressional Record shows that Congress’s
revocation of foreign governments’ tort immunity was intended to reflect this new trend in
international law.115
By seeking to immunize the United States from liability for acts of terrorism, 18 U.S.C. §
2337(1) is a violation of the Geneva Convention’s prohibition against a signatory’s “absolv[ing]
itself […] of any liability incurred by itself […] in respect of [grave] breaches” of the treaty. The
Geneva Convention’s provisions represent “the most fundamental norms of the law of war,”116
and it would greatly complicate U.S. foreign policy if the nation is seen as slouching off such basic
norms. Fortunately, the Court is in a position to prevent this dangerous outcome by applying the
well-established principles and precedents discussed above and denying the Defendant’s motion
to dismiss the ATA claim.
CONCLUSION
For the foregoing reasons, this Defendant’s motion to dismiss must be denied. In the event
that any claim is dismissed, the Plaintiff prays leave to amend the Complaint to cure any defects
identified by the Court.
testimony stating that § 2337 was intended to avoid conflicts with “international law” and international “reciprocity”
relating to sovereign immunity).
115
162 Cong. Rec. S6168 (2160) (statement of Sen. Cornyn) (“JASTA is not a sweeping legislative overhaul that
dramatically alters international law. It is an extension of law[. … T]here are numerous exceptions that prevent foreign
governments from shielding themselves from litigation when they cause harm.”).
116
Kadic v. Karadzic, 70 F.3d 232, 243 (2d Cir. 1995).

Dated: February 15, 2018 Respectfully submitted,
/s/ Trenton Roberts_____

Trenton Roberts
Partner at Roberts & Willie, PLLC
212 Suntide Drive
Sunnyvale, Texas, 75182
Telephone: (832) 328-7345
Email: Trenton@RobertsandWillie.com
ATTORNEY FOR THE PLAINTIFF
CERTIFICATE OF SERVICE
I hereby certify that on February 15, 2018, I caused to be served upon the following a
true and correct copy of the Plaintiff’s Memorandum in Opposition to Defendant’s Motion to
Dismiss, Or, in the Alternative Leave to File an Amended Complaint via ECF filing:
Philip D. MacWilliams
U.S. Department of Justice
Civil Division, Torts Branch
1331 Pennsylvania Ave., NW, Room 8080N
Washington, DC 20004
Telephone: (202) 616-4285
Email: phil.macwilliams@usdoj.gov
Attorney for Defendant
Memorandum in Opposition to Motion to Dismiss – Signature Page

018 - Response To Motion For Relief I

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Case 3:17-cv-02692-S Document 18 Filed 02/15/18 Page 1 of 31 PageID 247

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

MR. BRUCE JOINER

PLAINTIFF MR. BRUCE JOINER’S MEMORANDUM

Attorney for Plaintiff

Memorandum in Opposition to Motion to Dismiss - i

Memorandum in Opposition to Motion to Dismiss - ii

Memorandum in Opposition to Motion to Dismiss - iii

Kaiser v. Grimsinger, 1998 WL 35277046 (Tex. App. Aug.13, 1998) .................................. 21

Memorandum in Opposition to Motion to Dismiss - iv

Memorandum in Opposition to Motion to Dismiss - v

plausibility standard is not akin to a probability requirement.”4

Memorandum in Opposition to Motion to Dismiss - 1

they started shooting.11

assault by assisting and encouraging the attack.

Memorandum in Opposition to Motion to Dismiss - 2

Furthermore, when a Rule 12(b)(1) motion is based on the discretionary function

exception to swallow the FTCA’s sweeping waiver of sovereign immunity.”15 Of particular

policy choices based on allocation of limited resources.”16

I. PLAINTIFF’S CLAIMS ARE NOT BARRED BY THE DISCRETIONARY

Memorandum in Opposition to Motion to Dismiss - 3

discretionary function exception does not apply to the Plaintiff’s claims.

A. Defendant’s argument is premature because Plaintiff should be entitled to discovery

doctrine applies is particularly fact-sensitive:

States’ motion to dismiss pending additional discovery:

Memorandum in Opposition to Motion to Dismiss - 4

UCE-1 received, as required by FBI policy, high-level authorization to engage in “Otherwise

extent UCE-1 coordinated with the terrorists in relation to the attack.

Memorandum in Opposition to Motion to Dismiss - 5

potentially hundreds of American citizens to be attacked in a dubious attempt28 to maintain UCE-

secrecy.” This is simply not the law.

kind that Congress intended to shield from civil claims.

1. Gaubert test, first part: FBI violations of legally-prescribed courses of action

question actually “involv[es] an element of judgment or choice,” or if “a federal statute, regulation

Memorandum in Opposition to Motion to Dismiss - 6

as the approval violated both federal statutes and agency policy.

i. FBI violated agency policy relating to undercover operations

Soofi opened fire on him.32

Memorandum in Opposition to Motion to Dismiss - 7

such as […] participation in an act of violence.”34 By inciting Simpson to commit an act of

UCE-1’s actions do not fall under the discretionary function exception.

If an undercover operation results in violence in the course of criminal activity,

Memorandum in Opposition to Motion to Dismiss - 8

any accountability for the attack.38

part of the Gaubert test.

Memorandum in Opposition to Motion to Dismiss - 9

Memorandum in Opposition to Motion to Dismiss - 10

Memorandum in Opposition to Motion to Dismiss - 11

uses its entire three-day window to conduct due-diligence.56

iii. In addition, the FBI violated the Due Process Clause

Memorandum in Opposition to Motion to Dismiss - 12

Under the “state-created danger” theory, a plaintiff must prove that:

1) he is a member of a limited, precisely definable group;

Proof of “deliberate indifference” to the existence of a known, “substantial risk of serious

the civil tort of “deliberate indifference” to “criminal recklessness.”64

Government-Created Risk Doctrine, 48 CONN. L. REV. 119, 135 n.95 (2015).

Memorandum in Opposition to Motion to Dismiss - 13

particularly UCE-1’s actions in taking a photograph of the Plaintiff knowing

the discretionary function exception.

essentially making exactly that argument.

Memorandum in Opposition to Motion to Dismiss - 14

“continues to stonewall Chairman Johnson’s requests for information by refusing to provide a