PHOENIX – A judge has dismissed federal employees from a wrongful death lawsuit filed by the family of a slain Border Patrol agent over the botched "Fast and Furious" gun operation, noting congressionally-mandated remedies are already in place for when an agent dies in the line of duty.
Agent Brian Terry was killed in a Dec. 14, 2010, firefight near the Arizona-Mexico border between U.S. agents and five men who had sneaked into the country to rob marijuana smugglers.
The now-heavily scrutinized operation led by the federal Bureau of Alcohol, Tobacco, Firearms and Explosives allowed gun-runners to buy weapons in hopes of tracking them and disrupting Mexican smuggling rings. At least one of the guns was found at the scene of Terry's shooting.
Last week, a federal judge dismissed a prosecutor and six ATF employees from the Terry family's lawsuit.
"The court recognizes the plaintiffs have suffered a great loss, and that any financial remedy is likely insufficient to redress their injury," U.S. District Judge David Campbell wrote in the ruling.
However, Campbell noted the court could not impose additional remedies when they already exist in the law.
Campbell cited three congressionally-mandated remedies for survivors of federal employees killed in the line of duty, including the Federal Employees Retirement System, the Federal Employees Compensation Act, and the Public Safety Officers Benefits Act, which all provide benefits and "amount to a convincing reason for the judicial branch to refrain from providing a new and freestanding remedy in damages."
Attorneys for the Terry family said they will appeal the judge's ruling and will continue to pursue the lawsuit against the remaining defendant, Lone Wolf Trading Co., where the gun found at the shootout scene was purchased.
"The Terry family is extremely disappointed in Judge Campbell's ruling," attorney Lincoln Combs said in a statement, adding that it "has nothing to do with the underlying incompetence and misconduct of those individuals who caused the Operation Fast & Furious debacle that ended in Brian's death."
Kent Terry, Brian Terry's father, said the lawsuit has never been about money, but instead is intended to force transparency about his son's death.
"I'm in it for justice for my boy," Terry said Friday. "I loved him very much."
The family's lawsuit was filed in 2012 against six ATF employees, a federal prosecutor who had previously handled the case and the gun store. The lawsuit claims, among other things, that the federal government created a risk to law enforcement officers and agents should have known their actions would lead to injuries and deaths.
Two of the five men accused in Terry's killing are in custody. One has pleaded guilty to first-degree murder and is awaiting sentencing. Three remain fugitives.
In the aftermath of the public revelations about Fast and Furious, many top ATF leaders were reassigned, forced out of the agency or retired, including then-acting Director Kenneth Melson.
More recently, the ATF last month approved publication of a book by an agent who told Congress about the agency's failed gun smuggling sting operation. Special agent John Dodson's book, "The Unarmed Truth," is scheduled for publication in December by Threshold, a conservative imprint of Simon & Schuster.