« Amicus briefs in Kachalsky | Main | Justice Scalia predicts more 2A cases coming »

Jaimie Zapata's survivors sue over Fast and Furious

Zapata was the ICE agent who was murdered in Mexico by cartel killers using Fast & Furious guns. David Codrea reports on the lawsuit, and links to a copy of the complaint. Some quick observations:

1) All three rifles found at the scene appear to have been Fast and Furious guns. Of the six guns found on the killers when they were arrested, one traced to Fast and Furious.

2) There are references to guns being given to ATF "CIs" -- "cooperating individual" or "confidential informant," meaning informants. This suggests that letting cartel straw men buy guns wasn't enough, ATF's own informants were given guns to pass on to the cartels.

3) ATF policy is that a written report must be filed within five days of an event, but in this case some were not filed until more than three months passed.

4) I think the Federal Tort Claims Act claims are going to be very hard for the government to defend. The usual defense is the "discretionary function exception," which says the government does not consent to be sued over discretionary functions, a term the Supreme Court construed to mean actions where the decisionmaker had discretion to act, in the sense of not having been forbidden to do so by a superior. Here, the decision(s) to run guns to the cartels didn't just violate regulations or policies, they violated multiple sections of the Gun Control Act and of various arms export statutes. I don't think an agency supervisor will be able to claim he had discretion to do what Congress had specifically outlawed.

· BATFE