Garcia v. United States

A hostage with his hands taped and a bandana over his eyes, a window broken from outside, a figure standing up behind a curtain, and the shots that followed. The United States argued that the agent who fired was exercising the kind of judgment the law protects, and that the trial court had built its findings on “a course of events that never happened.” Two judges disagreed. One did not.

The rule

“The United States enjoys sovereign immunity from suit, meaning it cannot be sued without consent.” The consent, for a wrongful death at the hands of a federal employee, is the Federal Tort Claims Act, which, the court said, “provid[es] a waiver of sovereign immunity and [] the sole basis of recovery for tort claims against the United States.” The Act lets the district courts hear claims “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, 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” (28 U.S.C. § 1346(b)(1)), which for a shooting in Texas means Texas negligence law, tried to the bench. The waiver has exceptions, and the one the government reaches for first is in § 2680(a): the Act does not apply to “Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” The exception, in the court’s words, “preserves the federal government’s immunity . . . when an employee’s acts involve the exercise of judgment or choice,” and it is applied by a test with two parts: “(1) the conduct must be a matter of choice for the acting employee; and (2) the judgment must be of the kind that the discretionary function exception was designed to shield.” “The exception only applies if both prongs are met.” After a bench trial the court of appeals reviews “legal issues de novo and the court’s findings of fact for clear error,” and “Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous,” with “even greater deference to the trial court’s findings when they are based on determinations of credibility.” One more statute decides the end of the case: “No attorney shall charge, demand, receive, or collect for services rendered, fees in excess of 25 per centum of any judgment rendered pursuant to section 1346(b) of this title or any settlement made pursuant to section 2677 of this title, or in excess of 20 per centum of any award, compromise, or settlement made pursuant to section 2672 of this title” (§ 2678).

The facts

On January 24, 2018, a father and his twelve-year-old son were at their home in Houston when two men bound them with duct tape and took the father away, still bound. Law enforcement called in the FBI, which “determined that a Special Weapons and Tactics (SWAT) team would attempt the rescue” at the house where he was being held. One agent “was tasked with porting (i.e., breaking) a window using a Halligan tool,” and in the course of it “inadvertently dropped the Halligan tool inside the house.” A second agent, covering him from the same side of the house, fired. Afterward he “stated, ‘I shot’ and ‘he grabbed my gun.’” The person he shot was the hostage. The eyewitness who decided the case was in the room: a woman who had agreed to hold the hostage at her residence for the kidnappers, and who testified at trial. She said the hostage “was blindfolded with a black bandana, and his hands were bound during the entire incident,” that “Just prior to the shooting, he had been placed on a couch under the window,” that when he heard the glass break “he stood up from the couch and turned toward the window,” and that “Upon standing, [he] pushed the window curtains aside and was immediately shot.” He “never leaned out of the window, never crouched in a position as if to shoot someone, never had a weapon or anything else in his hands, and never made any threatening gestures to anyone given that he was bound and gagged.” The case took more than six years to reach trial and eight to reach this decision. The son’s next friend first sued the agent personally under Bivens; the agent claimed qualified immunity, the district court denied it, and in 2021 a panel of the Fifth Circuit reversed, holding that “the only plausible reading of the allegations is that [the agent] accidentally shot [the hostage] while trying to help him by ending the hostage situation,” and “Such accidental conduct does not result in a Fourth Amendment seizure.” That closed the constitutional claim against the agent. The negligence claim against the United States went on, and “on October 17, 2024, the case proceeded to a three-day bench trial on the plaintiffs’ FTCA claim against the Government.” “Neither agent testified at the bench trial,” though one agent’s deposition was in evidence. The district court held “(1) [the agent] was negligent, even grossly negligent, in his response to the hostage situation; (2) the shot(s) that [he] fired were the sole cause of [the hostage’s] death; and (3) the discretionary function exception was not designed to shield the Government where [the agent] acted negligently in shooting an unidentified figure in a window when there was no threat to either agent.” It awarded damages to the plaintiffs, the son and the son’s mother, and a fee of about a quarter of the award. The government appealed.

The holding

Affirmed on liability. As the panel framed it, the government’s argument was about the facts, not the law of the exception: that the findings underneath the judgment “are not supported by the record,” that the court erred “in making adverse credibility findings against [the agents],” and that even if one agent “was mistaken as to the facts, there is no evidence that he intentionally lied about them ‘as opposed to misperceived the threat in a fast-moving, tense situation.’” The panel went through the record. “Contrary to the Government’s position, however, the district court did consider and rely on substantial record evidence when it determined that the agents’ statements regarding the shooting were not credible.” The woman in the room “was an eyewitness to the entire incident,” her account “undoubtedly contradicted” the agents’, and “The record evidence, however, supports [the witness’s] version of events over that of the agents.” Then the sentence the whole appeal turns on: “The undisputed fact that [the hostage] was blindfolded with his hands bound during the entire incident supports [the witness’s] testimony that [he] could not have seen the agents, pointed his hands at the agents, grabbed an agent’s gun, physically threatened an agent, or gotten into a shooting stance.” It “would have been extremely difficult, if not completely infeasible, for [him] to grab an agent’s weapon or make threatening gestures towards the agents while his hands were bound with duct tape.” So the record supported the finding “that he had not yet identified his target and there was no threat to either agent when he fired his weapon,” and the choice to credit the eyewitness over the agents “was a credibility determination to which we give great deference.” “For these reasons, we hold that the district court did not clearly err in determining that the Government is liable to the plaintiffs under the FTCA.” The panel gave the government one point and said it did not matter: the trial court had leaned on the autopsy report to call the agents’ statements fabricated, and “the district court’s reliance on the autopsy report cannot carry the day,” but “the autopsy report was just another piece of evidence” beside the eyewitness’s testimony and the rest of the record, which carried it. Reversed on the money. The trial court had first entered the fee as a separate sum on top of the damages, and when the government objected that the Act does not allow that, it raised the damages by the amount of the fee so the fee would fit inside. “As the Government correctly argues, the district court’s attorney’s fee award must be limited to 25% of the total damages award that it issued under the FTCA.” The statute “requires the attorney’s fees to be carved out of the total damages award, rather than issued in addition to it,” and the raise was “problematic because the increased dollar amounts in its amended judgment are not independently supported by the record.” The original award was. So the court ordered the trial court “to reissue its original damages award with attorney’s fees limited to 25% of the total award in accordance with the FTCA.” Judge Ho dissented. He wrote that the hostage’s death was unquestionably tragic and that the kidnappers, not the agents who tried in good faith to rescue him, were the ones who should be punished; that a figure standing on a couch with hands held together and raised, even if only to push a curtain, “could easily resemble a person in a threatening shooting stance, especially during a high-stakes rescue mission”; that “It was enough that [the agent] perceived [the hostage’s] actions as such, given the gravity of the situation”; that it was not reasonable “to require [the agent] to warn [the hostage] before using deadly force in that critical moment”; and that “The discretionary function exception under § 2680(a) of the FTCA should therefore protect the United States from suit.” The majority did not answer him by name. Its answer was the record.

Why it matters

Five things for a family whose loss came at the hands of a federal employee. First, the road. The constitutional claim against the officer himself, the one Immunity describes, was closed in this case in 2021 by qualified immunity and by the rule that an accidental shot is not a seizure. The negligence claim against the United States stayed open, because the Tort Claims Act asks a different question: not whether a right was violated, but whether “a private person” who did this in Texas would answer for it under Texas law. In Texas a private person who fires at a figure he has not identified, when no one is threatening him, answers for it. Second, the shield. The discretionary-function exception is the government’s first argument in nearly every one of these cases, and it is a real one: it protects choices, even bad ones, “whether or not the discretion involved be abused.” What the trial court held, and the panel left standing on the facts, is that it was not written for negligent shots at an unidentified figure with no threat, and the dissent shows exactly how the other side of that argument reads. The claim is tried without a jury, which is the third thing: the judge finds the facts, and under clear-error review a finding that one witness is believable and two are not is almost beyond reach, which is why the proof at a bench trial is built for the judge who will write the findings, and why the agents’ absence from the witness stand left their account to one deposition and a few words spoken after the shots. Fourth, the fee. In an ordinary Texas case the contingent fee is a contract. In a Tort Claims Act case it is a statute, 25 percent of a judgment or of a settlement after suit is filed, 20 percent of an administrative settlement, taken out of the award and never added to it, and the penalty for taking more is a fine, imprisonment or both (§ 2678). A client should know that before the first meeting ends. Fifth, the pattern. The Docket has written about the Wrongful Death claim, about Gross Negligence and about what an Expert does with a record; here the record was a blindfold and tape. The hostage could not have seen the agents, could not have pointed at them, could not have taken a gun. The physical facts decided what the eyewitness’s word was worth, and the appellate court, reading the same facts, declined to see it differently.

Garcia v. United States, No. 25-20180 (5th Cir. Oct. 21, 2026) (Stewart, J., joined by Higginson, J.; Ho, J., dissenting), from the Southern District of Texas, No. 4:18-CV-3196, also posted on GovInfo, and the court’s earlier decision in the same matter, Pearce v. Doe, No. 20-20372 (5th Cir. Mar. 9, 2021) (per curiam), as the opinion describes it. The statutes: 28 U.S.C. § 1346(b)(1), § 2680(a), § 2678. The hostage, his son, the son’s mother, the agents and the witness are described here by role; the opinion names them. Read from the opinion. Analyzed here for the lawyering, not the politics. This is general information, not legal advice.