After it was found that two U.S. Park Rangers released the teenage drunk driver with merely an instruction to "pull over to the barricade near the water
to ‘sober up’ for an hour and a half," after finding that the suspect's eyes were extremely bloodshot and that his breath smelled of the odor of alcohol, it was felt that this was the negligent performance of the Park Rangers' official duty. Consequently a lawsuit was filed against the employer of the Park Rangers, i.e. - the United States government. Then in a bench trial (no jury), the trial court, U.S. District Court for the Southern District of Texas, Corpus Christi Division, in a Federal Tort Claims Act (FTCA) case, found that the conduct of the officers in knowingly releasing the drunk driver was the negligent performance of their official duties and that such negligence was a proximate cause of Mr. Crider's severe maiming injuries including the amputation of his left arm at the shoulder and left leg above the knee.
Here is a photo of Randy (wearing the green jacket) on his wedding day prior to his injuries, Judge John Cox officiating.
In a bench trial, the U.S. District Court for the Southern District of Texas, Corpus Christi Division, found that the Rangers were negligent in the performance of their official duties and that such negligence was a proximate cause of Randy's injuries.
Here is a link to the trial court's Findings of Fact and Conclusions of Law:
http://bit.ly/H4OqvY .
The U.S. District Court awarded Mr. Crider $7.5 million to be paid by the United States government. The trial was presided over by visiting Senior U.S. District Judge Spencer Williams from San Jose, California. Judge Williams was a "strict constructionist" appointed to the federal bench by President Richard Nixon, who prior to Randy's case had not ruled against the government in any FTCA case. Judge Williams in making his ruling, stated from the bench, "I'm not a deep-pocket type of judge. I don't go around looking for ways to create rights that don't exist in order to remedy an otherwise inequitable situation…. I'm not a judge who goes around making laws willy-nilly in order to solve what I believe to be pressing social problems. I look to the legislature, I look to the cases, I try to determine – make my decisions based on the law as I see it and the facts as I find them, and this is how I'm deciding this case." See Petitioner's Petition for Writ of
Certiorari to the U.S. Supreme Court, No. 89-1380, p. App-28.
Since there is no body of federal tort law, under the FTCA, the federal courts were obliged to faithfully apply the existing tort law of the State of Texas, the place where the act or omission occurred. At that time, the leading Texas case which controlled in such a fact situation was
Otis Engineering Corp. v. Clark, 668 S.W.2d 307 ( Tex. 1983) a Texas Supreme Court case written by then Texas Supreme Court Justice William W. Kilgarlin. The Texas Supreme Court in
Otis Engineering held that if one has custody or control over a dangerous person known to present a danger, they have a duty to exercise reasonable care over that person to prevent harm to others.
The United States appealed this decision to the U.S. Fifth Circuit Court of Appeals which held that the federal officers had no duty with respect to Mr. Crider and reversed and rendered a take nothing judgment, erroneously holding that the
Otis Engineering case was limited to employer-employee situations only.
Justice Kilgarlin, the writer for the majority of the Texas Supreme Court in
Otis Engineering, has reviewed the Fifth Circuit decision in
Crider (Randy Crider v. U.S., 885 F.2d. 294 (5th Cir. 1989), cert. denied, 495 U.S. 956 (1990)), and, in an eight-page sworn declaration, has stated under penalty of perjury that this case "was wrong and improperly decided." Justice Kilgarlin further declared, "The 5th Circuit impermissibly limited the duty announced in
Otis to an employer-employee situation, and further, the 5th Circuit wrongly failed to address and recognize the stated affirmative acts of control by the federal officers over the teenage alcohol- and marijuana-intoxicated driver known by the officers to be so intoxicated. If the 5th Circuit had properly applied the Texas tort law duty to exercise reasonable as announced in
Otis Engineering to the facts of the
Crider case, Mr. Crider would have prevailed in this appeal taken by the government. An injustice has been done to Mr. Crider by not only the 5th Circuit but also by the U.S. Park Ranger that the trial court found "testified implausibly."" Justice Kilgarlin further stated, concerning the reason the Park Rangers did not arrest this driver known by them to be intoxicated, "As a former judicial officer I am particularly disturbed that the park ranger who obviously recognized that he had an intoxicated individual on his hands was reluctant to disturb a United States Magistrate on the weekend. This does not speak well of our judicial system." In fact, the Trial Court mentioned in its Findings of Fact that, "There was testimony that another reason he did not book [the drunk driver] was fear of antagonizing the United States Magistrate by requiring his appearance over the weekend."
In brief summary, the record shows that an 18-year old drunk driver, after recklessly endangering the lives of two teenage girls riding on the hood of his car, was stopped by two U.S. Park Rangers, who smelled the odor of alcohol, and during a custodial search of his car found a marijuana smoking pipe and a baggie containing marijuana and observed that the driver's eyes were "extremely red," known by the officers to be a symptom of marijuana intoxication. After searching the suspect and his car, the Rangers did not arrest him, detain him, take his keys or call his parents. State and local law mandated that the officers arrest him for possession and intoxication of marijuana, respectively. The government subsequently admitted and stipulated that the Rangers DID HAVE probable cause to arrest this individual. The Park Rangers issued the drunk driver four tickets: (1) possession of marijuana, (2) possession of alcohol by a minor, (3) speeding, and (4) no Texas vehicle liability insurance. There was no citation for intoxication. Further, at that time, possession of marijuana was not an offense for which a ticket could be written - an arrest was supposed to have been made.
After the lead U.S. Park Ranger told the drunk driver that this was his "lucky day," and to "Wait here for an hour and a half to sober up ," (See Trial Court Findings of Fact and Conclusion of Law, p. 4 and 6, respectively), the drunk driver left immediately and continued drinking and smoking marijuana until the time that he hit Randy Crider while passing other cars on a two-lane highway going roughly 80 miles per hour. Randy's left arm was traumatically severed at the shoulder during the collision and doctors had to amputate his badly-mangled left leg at mid-thigh. The leg amputation was done without benefit of general anesthesia because the loss of blood had so lowered Mr. Crider's blood pressure that the anesthesia alone could have killed him.
Judge Williams, the trial judge, concluded that, " A Texas peace officer has an affirmative duty to arrest a suspect for possession of marijuana. Tex.Code Crim. Proc. art. 2.13. See also, 18 U.S.C. Sec. 13 (state penal law proscribing possession of 4.5 grams of marijuana assimilated under the circumstances of this case as a federal offense." In this regard, the Procedures of the Padre Island National Seashore, introduced at trial as Plaintiff's Exhibit 15, REQUIRED the arrest and impoundment of the driver's vehicle under these circumstances. The Law Enforcement Procedures of the Padre Island National Seashore, promulgated on May 9, 1976, (Plaintiff's Ex. 15) state in pertinent part:
"DWI's [Driving While Intoxicated]
.... Secure vehicle and call tow truck. Impound is made unless vehicle is released by owner to another subject with a valid driver's license.
* * *
DUID [Driving Under the Influence of Drugs]
.... Secure suspect and impound vehicle - follow guidelines for impoundment of vehicles. ....
Subject is then transported and booked."
[Emphasis added.]
Under Texas law, which the federal courts are obligated to apply in an FTCA case, in
Travis v. City of Mesquite, 830 S.W.2d 94 (Tex. 1992), the Texas Supreme Court held that police officers could be liable for their decision to engage in a high-speed chase. The Texas Supreme Court stated, "We recognize that police officers must make their decisions about pursuing a fleeing suspect rapidly while under pressure, but we have concluded that there is no special statutory provision excepting police officers from the recited legal standards for proximate cause... Public safety should not be thrown to the winds in the heat of the chase."
Id., at 98. Justice Cornyn, (now U.S. Senator John Cornyn), in a concurring opinion, stated, "the courts are duty bound to protect the rights of innocent bystanders when a police officer totally disregards public safety."
Id., at 104. It should be noted that
Travis v. City of Mesquite impliedly overruled the case of Dent v. City of Dallas, 729 S.W.2d 114 (Tex.App. - Dallas 1986, writ ref'd n.r.e.), which the 5th Circuit relied upon in the Crider case. See
Crider, 885 F.2d at 297-98.
Indeed, under Texas law, it has long been held that a police officer can be liable for his own negligence in the performance of his duties. See
State v. Terrell, 588 S.W.2d 784 (Tex. 1979); Eubanks v. Wood, 304 S.W.2d 567 (Tex.Civ.App - Eastland 1957, writ ref'd n.r.e.) and
Asher v. Cabell, 50 F. 818 (5th Cir. 1892).
It is not too late for the government to correct this injustice. Technically, the case is under the Mandate of the Fifth Circuit and could be re-opened "to prevent injustice." (See U.S. Fifth Circuit Court of Appeals Appellate Rule 41.2). The Department of Justice could agree that this was an "injustice" and provide the funds awarded by the trial court to Mr. Crider.
Based on former Texas Supreme Court Justice Kilgarlin's declaration, he states the case was wrongly decided and clearly indicates that the opinion of the Fifth Circuit panel in Crider created an "injustice." If the Fifth Circuit Crider opinion is determined to have resulted in an "injustice," Mr. Crider is entitled to Judicial branch or Executive branch relief.
Further, the U.S. Department of Justice has Discretionary Funds under the Office of Justice Programs, see 28 U.S.C.§§ 2672 and 2677, to fairly compensate Mr. Crider to overturn such an "injustice".
The facts and law of this case may convince you that the U.S. Government, rather than being Mr. Crider's adversary, could have been an advocate for enforcement of our drunk driving laws to reduce this scourge on our nation. This is always a timely issue in the interest of justice. Further, this matter will not set a precedent for others seeking government compensation because of the uniqueness of Mr. Crider's particular case. The strict administrative filing requirements under the FTCA and its strict time limits on filing create a natural bar to filing a large number of these cases against the federal government. This case in particular exhausted every legal possibility. After the denial of
certiorari at the U.S. Supreme Court, only an extra-judicial resource at the Department of Justice or agreement with a motion in the Fifth Circuit can provide the relief that Mr. Crider deserves to overturn this "injustice".
A U.S. Attorney is instructed that his/her duty in criminal cases is not to convict,
per se, but, rather to see that "justice is done." Likewise, that same standard should apply to civil cases, not necessarily for the Government attorney to win at any cost,
per se, but rather, to see that justice is done. In this case, justice was NOT done!
The federal National Park Service website, http://www.nps.gov, contains a description of the Crider case in which a description of the case, an admission, is contrary to what the Rangers testified at trial. The official government website at:
https://www.nps.gov/parkhistory/online_books/pais/adhi7.htm (Scroll down the linked page to "Law Enforcement Issues")
sets forth a key admission:
"After a few minutes of conversation with [the drunk driver], the rangers noted the smell of alcohol and
suspected that all the occupants were using drugs. A brief investigation uncovered marijuana, liquor, and drug paraphernalia."
Here is the relevant excerpt from the National Park Service official government website (preserved here before it might be expunged by the government) (the names of the those involved other than Randy Crider have been redacted since they are not relevant to this matter at this time):
This subsequent government account (above) is contrary to the Rangers' sworn testimony at trial -- at trial they testified that they did not believe the driver was intoxicated on either drugs or alcohol, even though his eyes were "extremely bloodshot" and they smelled the odor of alcohol and found a baggie of marijuana and a marijuana smoking pipe ("bong"). In fact, had the Park Rangers admitted during trial that they suspected that the driver was using drugs, this case would have been over and settled in favor of Mr. Crider! Thus, a fraud was perpetrated upon the Court by the government witnesses! Further, what does the government mean when it states that the Crider case "haunted Padre Island staff for many years and
is still used as a landmark case in law enforcement training for national parks"? Is law enforcement being trained that it is acceptable to knowingly release a driver suspected of using drugs? Does the government condone this negligence and failure to arrest a drunk driver that Rangers know to be drunk? If this is so, then the policy needs to be changed today!
Here is a link to Texas Supreme Court Justice Kilgarlin's sworn declaration under oath which explains the injustice of the 5th Circuit's decision:
http://bit.ly/H4tfGw . (This is a
sworn document by a former Texas Supreme Court Justice who states that the Fifth Circuit misapplied the the Texas law in deciding this case, and clearly ignored the evidence of control over the drunk driver by the Park Rangers!)
A great injustice was done in this case by the Park Rangers and the Fifth Circuit Court of Appeals. Proverbs 29:14 provides: "The king that faithfully judgeth the poor, his throne shall be established for ever." Proverbs 31:9 provides: "Open thy mouth, judge righteously, and plead the cause of the poor and needy." There is a unique opportunity for the Department of Justice and U.S. Government to state that they are serious about drunk driving and its consequences. Together, we can seek Justice For Randy Crider which has been wrongfully denied to him by the Park Rangers and the Fifth Circuit.
These words of Micah 6:8 ring true and strong: "What does the Lord require of you, but to do justice, and to love kindness, and to walk humbly with your God." It is still not too late to do justice in this case. If we get together to publicize this case in the media and to our elected officials, we can reverse a great injustice! May this injustice be overturned!
