09.10.09

Why Jaycee Dugard Should Sue

As bones are found near Phillip Garrido’s property, Wendy Murphy says the pundits are wrong: Jaycee Dugard’s family absolutely must sue the parole officers who could have saved her.

A human bone has been discovered in the ground of a home next door to the house where admitted sex predator Phillip Garrido raped and held captive 11-year-old kidnap victim Jaycee Dugard. The discovery raises new questions about whether Garrido is also a murderer because the bone was found on a property where Garrido not only provided caretaking services for the owner but also sometimes spent the night in a backyard shed that was near where the bone was found.

DNA tests are being done to determine whether the bone belongs to one of many dead or missing prostitutes and children who lived in the area, and if cops find a match, Garrido may be charged with even more serious crimes than the multitude of rape and kidnapping charges he now faces related to the 1991 abduction and repeated sexual abuse of Dugard.

Garrido kidnapped Dugard from her schoolbus stop and kept her like an animal in his Antioch, California, backyard—where a garbage heap of tents and sheds served as the little girl's home for 18 years until she was rescued at age 29 last month.

While law-enforcement officials figure out all the criminal charges, it's even more important that someone on behalf of Dugard and her family consider filing a lawsuit against the parole officers whose job it was to closely monitor Garrido during the time he held Jaycee captive.

A lawsuit will encourage all parole officers to work harder in the future so that a red flag that might have been ignored will instead be treated as a focus of concern.

Parole officers were supervising Garrido in connection with another kidnapping and rape case involving a young woman he'd taken to a shed and brutalized in 1976. Sentenced in 1978 to 50 years behind bars, Garrido got out 40 years early in 1988. Three years later, he kidnapped Jaycee Dugard. In 1999, his case was transferred to California parole authorities for supervision.

"Supervision" means parole officers had a duty to make sure Garrido was abiding by the conditions of his release and committing no crimes. They knew Garrido was a convicted sex offender who had drugged and raped a 14-year-old in 1972 (charges were dropped when the child refused to testify), kidnapped and raped another young woman in 1976 and, in connection with that case, admitted committing many other sexual offenses for which he had never been caught. In fact, Garrido testified that he couldn't stop himself.

Parole officers repeatedly visited Garrido at his home over a 10-year period, during which time they knew his backyard was filled with tents and sheds and that his 1976 victim had been raped and held captive in a shed. They also knew young children were living at Garrido's home and they either knew or should have known that local police had received calls form concerned neighbors about kids living in the backyard.

But parole officers did absolutely nothing to ascertain the true identities of the children, or figure out why they were there and what was going on in the tents and sheds.

Had they simply asked for identification and birth certificates, they would have learned that the two little girls living at the home were the offspring of Garrido and Jaycee Dugard—and that Dugard became pregnant with her older child in 1993 (apparently when she was only 13 years old) during one of the countless times Garrido raped her while holding her captive. There would have been no birth certificates because Dugard was forced her to give birth in a soundproof structure in the backyard.

It bears stating the obvious that had parole officers done their job and simply asked for some form of identification from Jaycee and her children, Jaycee Dugard would have been rescued many years ago. Which is why a lawsuit against the idiot parole officers is necessary and appropriate.

Thus far, there's been no word about Dugard or her family filing a lawsuit—which could be because they're still too focused on celebrating and reuniting after long ago giving up hope that this moment would ever come.

It might also be that they believe what all the pundits have been saying—that there's "no way" to sue a parole officer because they are immune from liability.

The pundits are wrong.

Although immune under state law, parole officers can be sued under federal law.

Here's how:

Jaycee and her family can file a claim and allege that Jaycee's federal constitutional rights to due process, liberty, bodily integrity, and personal autonomy were violated by parole officers who failed to protect her from Garrido during the time he was being supervised and she was being raped and held captive in his backyard.

Lawyers for the inept parole officers will claim they cannot be sued under federal law because of the U.S. Supreme Court's 1980 Martinez decision, which held that the family of a 15-year-old girl murdered by a demonstrably dangerous parolee could not sue the California parole officers who voted to release the guy from prison. The court ruled there can be no federal lawsuit where there is no involvement of parole officers in causing constitutional harm to the victim—and the decision to grant parole did not cause the child's death in that case.

But unlike the Martinez case, Jaycee Dugard would not be suing the parole officers who voted to release Garrido in 1988. She would instead file claims against the parole officers who were supposed to be supervising him from 1999 to 2009.

Supervisory parole officers can be sued because they owe a "special" duty of care to people who face a "special risk" of harm because of a parolee's past actions and admitted proclivities. Parole officers owe no such duty to the general public to prevent all types of violence by all types of parolees. But where a "special duty" exists because an offender has a particular propensity to commit certain types of crimes against certain types of people, the failure of parole to protect members of the identified "types" at risk is clearly grounds for a federal lawsuit.

Jaycee and her family have more important things to focus on at the moment than lawsuits—but as their reunification moves forward, they will begin to realize that the psychological care they need will take a lifetime and a ton of money. Lawsuits can't bring back the little girl who was snatched from her bus stop, but they can make sure that whatever help is needed for the family to repair itself is available forever, no matter the cost.

And while Jaycee and her family have no obligation to file a lawsuit so that what happened to Jaycee will never happen to another child, they should know that a lawsuit will encourage all parole officers to work harder in the future so that a red flag that might have been ignored (children living in a backyard full of tents and sheds) will instead be treated as a focus of concern, worthy of careful investigation.

If parole officers can't be expected to examine such overtly suspicious circumstances simply because it's their job, they should be forced to do so to avoid expensive litigation.

Kids don't vote—and they don't have money—so their lives aren't valued nearly enough by a legal system that too often gives out discounts and turns a blind eye to violence against the marginalized and the voiceless.

Lawsuits can be a great equalizer—a kind of quality-control device that ramps up the social value of kids' lives, but they aren't used often enough.

Here's hoping Jaycee Dugard, now a mom herself, understands her opportunity to provoke change in the parole system so that all children, including her own, will be better protected from predatory sex offenders.

Wendy is a former child abuse and sex crimes prosecutor who teaches at New England Law/Boston. Wendy specializes in the representation of crime victims, women and children. Her expose of the American legal system, And Justice for Some , came out in 2007. A former NFL cheerleader and visiting scholar at Harvard Law School, Wendy lives outside Boston with her husband and five children.