Abandoned DEA Detainee Files Claim Seeking Up to $20 M

Bump and Update: Mr. Chong has filed a a notice of his intent to sue and claim with the DEA (a prerequisite to filing a lawsuit under The Federal Tort Claims Act) seeking up to $20 million in damages. You can read it here. The DEA has issued an apology, and promised a thorough review.

In addition to traditional tort claims, his notice alleges torture in violation of the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006 and Convention Against Torture. The FTCA (28 USC 2675) allows recovery for pain and suffering, psychiatric and medical expenses, etc.

The actions of the officers give rise to the following causes of actions among others: intentional infliction of emotional distress, negligence, negligent infliction of emotional distress, and a Bivens cause of action for violation of Daniel Chong's rights under the Fourth and the Fifth Amendments for excessive force, unreasonable detention and unlawful seizure of his person.

The actions and the failure to act of the supervisory personnel, in failing to properly screen, hire, train and supervise give rise to, but are not limited to the following causes of action: negligence, negligent infliction of emotional distress, violation of statutory duty, and a Bivens violation based on the foregoing. The deprivation of food and water for four and one half days while the person is handcuffed the entire time constitutes torture under both international and domestic law.

Chong spent a total of five days in the hospital. The last two days he was in the cell he was in total darkness as the lights had been turned off. He was handcuffed the entire 5 days.

Original Post 5/2/12

What a nightmare. The DEA forgot it arrested a college student and left him in a holding cell -- for 5 days. The cell was 5' by 10' with no bathroom. Since they forgot he was there, no food or water were provided. Nor did they hear his screams.

A San Diego college student who federal drug agents forgot and left in a holding cell for five days without food, water or access to a toilet said Tuesday that he drank his own urine to survive.

...Chong said he could hear the muffled voices of agents outside his five-by-10-foot windowless cell and the door of the next cell being opened and closed. He kicked and screamed as loud as he could, but apparently, his cries for help went unheard.

More here from NBC San Diego which first reported the story. Chong started losing his sanity, and got so desperate he tried to commit suicide in the holding cell. He broke his eyeglasses and scratched a message to his mother on his arm. He then ingested the glass.

There was some white powder left in his cell by a previous "guest." He ingested it and it turned out to be meth.

When he was finally discovered five days later, he was rushed to the hospital suffering from, among other things, kidney failure. He spent three days in the intensive care unit.

Chong had been at a friend's house when the DEA conducted a raid. 9 people were arrested and Chong says the DEA told him he'd be released. He says one agent even offered to drive him home. Instead, they forgot him. The DEA confirmed in an email to NBC that Chong is not under arrest.

NBC also confirmed through a former prosecutor that the holding cells have no bathrooms.

Here's a video interview with Chong.

Chong missed his midterms and has been so affected he may not go back to school. His lawyer is planning a lawsuit against the DEA.

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    Chong's attorney, Eugene Iredale, said (5.00 / 2) (#1)
    by sarcastic unnamed one on Wed May 02, 2012 at 12:33:10 PM EST
    Chong's attorney, Eugene Iredale, said he plans to file a claim against the federal government, and if it is denied he will proceed with filing a federal lawsuit.
    Dam straight. Completely inexcusable by the DEA.

    Gene Iredale (5.00 / 8) (#24)
    by Peter G on Wed May 02, 2012 at 04:11:02 PM EST
    is an outstanding and highly experienced federal court attorney. I hope he gets seven figures for the kid. What an unimaginable nightmare, essentially to be buried alive! It shouldn't even have to get to court.

    buried alive (5.00 / 2) (#25)
    by Dadler on Wed May 02, 2012 at 04:27:53 PM EST
    the perfect analogy.  just horrific to imagine.  mind and body both betray you.  

    seven figures is right, eight would be even better (but won't happen). glad to hear he has a solid attorney.


    kid went to my alma mater, too (5.00 / 1) (#26)
    by Dadler on Wed May 02, 2012 at 04:29:13 PM EST
    nothing good happens in la jolla.  ahem.

    OT, but my brother went to UCSD too (none / 0) (#51)
    by ruffian on Thu May 03, 2012 at 12:53:48 PM EST
    What years were you there?

    I can't believe drug arrests are rare there....they ought to have a procedure that does not involve locking a kid up and forgetting about him.


    '84-'88 (none / 0) (#53)
    by Dadler on Thu May 03, 2012 at 12:56:51 PM EST
    Back when UC schools were still priced like a public institutions should be.  I feel for these kids today, bigtime.  

    After reading that he (5.00 / 3) (#55)
    by sj on Thu May 03, 2012 at 01:24:58 PM EST
    was handcuffed the whole time, I hope he gets a high eight figure settlement.  Holey moley.  I don't know if that's likely, but the DEA budget is hardly small.

    maybe he's the man (5.00 / 2) (#57)
    by CST on Thu May 03, 2012 at 02:20:40 PM EST
    to finally bankrupt the DEA.

    This story is horrifying in every way imaginable.

    He said he could hear people but no one answered his screaming.  Are people that immune to it?  Or are the walls only soundproof in one direction...


    Someone needs to be fired here also (5.00 / 1) (#50)
    by ruffian on Thu May 03, 2012 at 12:51:50 PM EST
    Money and 'a review' are not enough.

    And the DEA Has Yet to Apoligize... (5.00 / 1) (#6)
    by ScottW714 on Wed May 02, 2012 at 01:02:23 PM EST
    ...but they have offered to pay his medical tab.  How generous of them.

    Meth is probably the worse thing he could have taken, not blaming the kid, but surely aided to his delusions and dehydration.

    I only mention it because the first time I read the story, the DEA was acting like it was the kid's meth.

    And if this kid never did drugs, the DEA can rejoice in knowing they are responsible for his first use, but that is probably true of many people, but in a more indirect way.

    There is literally nothing the DEA can't do to decrease their budget, even nearly killing an innocent college student.  

    JE Hoover would be green with envy if he could see the power grab the DEA has made in the last couple of decades.  Not to mention their budget...

    Yes, and Daniel Chong's (5.00 / 2) (#32)
    by KeysDan on Wed May 02, 2012 at 05:33:56 PM EST
    medical bills may involve more than his ICU and other medical care in the immediate aftermath.   Acute kidney failure from this episode may place him at risk of developing future kidney failure.  And, as you say, the uremia that appears to have resulted in confusion and delusion from the kidney's inability to filter toxins and other waste products from the blood may well have been exacerbated by the methamphetamine--which is filtered and excreted by the kidneys, and constricts blood vessels of the kidneys so less urine is excreted and toxic waste is allowed back into the system.  I am glad he is represented by a good attorney.


    SAN DIEGO--The Drug Enforcement Administration issued an apology Wednesday to a California student who was picked up during a drug raid and left in a holding cell for several days without food, water or access to a toilet.

    DEA San Diego Acting Special Agent-In-Charge William R. Sherman said in a statement that he was troubled by the treatment of Daniel Chong and extended his "deepest apologies" to him.

    This is beyond (5.00 / 4) (#10)
    by Zorba on Wed May 02, 2012 at 01:31:31 PM EST
    Incompetent.  I hope that there are people fired over this incident.  Although I'm not holding my breath.

    Accountability is for people like us.... (5.00 / 3) (#11)
    by kdog on Wed May 02, 2012 at 01:39:02 PM EST
    Definitely don't hold your breath Z...it may be a federal crime to get high via oxygen depravation, I haven't checked our fubar criminal code recently to be sure.

    No kidding, kdog (5.00 / 2) (#12)
    by Zorba on Wed May 02, 2012 at 02:01:00 PM EST
    These are our tax dollars at work.  Wasted on the DEA, the stupid prosecutions of people like Roger Clemens and John Edwards, and so on and on.  Yet, our government is so "out of money" that some (many, in fact) politicians are talking about slashing federal spending on Social Security, Medicare and Medicaid, social safety net programs, and pretty much everything that doesn't involve the Department of Defense, Homeland Security, the Justice Department, and our various national spy and police agencies.  And they want to give more tax cuts to the wealthy.  I'm ready to give up.  This is not the country I used to believe in.  

    Preach it Sister... (5.00 / 2) (#16)
    by kdog on Wed May 02, 2012 at 02:25:00 PM EST
    The scary part is I saw the story in the paper and didn't bat an eye...this is the level of cruel and tyrannical "service" I've come to expect from our public servants.

    Paying taxes has never felt more criminal.


    I'm pretty much ready (5.00 / 2) (#17)
    by Zorba on Wed May 02, 2012 at 02:47:16 PM EST
    to throw in the towel and look for another country to move to after we retire.  Unfortunately, there are not many Westernized countries remaining (or any others, for that matter) who have not drifted to the right so far that I would be content to live there.  If I can convince myself that long winters, and long, long winter nights, are not so bad, maybe Sweden.
    On the other hand, maybe I should explore the possibility of seceding from the USA and establishing "The Republic of Zorba."  Unfortunately, I strongly suspect that we would not be allowed to do so, and if we tried, we would wind up in Gitmo.      

    One of the SCOTUS justices during (5.00 / 2) (#19)
    by oculus on Wed May 02, 2012 at 02:50:03 PM EST
    the AZ immigration law oral argument talked about a state's right to defend its borders.  Go for it.  

    Hee, hee! (none / 0) (#21)
    by Zorba on Wed May 02, 2012 at 03:14:12 PM EST
    And if I had unlimited money to pay for lawyers, I might be tempted to do just that.  After all, West Virginia seceded from Virginia after Virginia seceded from the Union (Civil War).  On the other hand, the United States government (Union) was fully behind that, and it was eventually approved.  Somehow, I don't see the current government of the USA, nor the State of Maryland, approving our secession.   ;-

    It was on the agenda... (5.00 / 2) (#29)
    by kdog on Wed May 02, 2012 at 05:05:15 PM EST
    if we had hit that Mega jackpot though;)

    I pictured a mercenary army of defense attorneys too, a bankroll to bail everybody out pre-trial and making the persecutors take every non-crime prosecution to trial...ending the rotten game of pleading guilty out of necessity due to poverty or work & family reponsibilities, clog the courts to the breaking point. Lawsuits for violations of civil rights and damages up the wazoo.  Oh it would have been glorious....


    If only, kdog (none / 0) (#31)
    by Zorba on Wed May 02, 2012 at 05:33:05 PM EST
    If only.  Although, as the old English proverb said, "If wishes were horses, beggars would ride."  {{Sigh}}

    It is with great regret (none / 0) (#39)
    by Rojas on Wed May 02, 2012 at 09:11:04 PM EST
    To have to admit this pearl is cast before swine.
    Carry on.....

    I'd pay taxes... (5.00 / 5) (#20)
    by kdog on Wed May 02, 2012 at 03:07:39 PM EST
    to the Republic of Zorba with pride, no doubt;)

    Absent such beautiful pipe dreams, subversiveness and sneakiness without getting my own arse Daniel Chong'ed is the only play.


    I wish (5.00 / 2) (#13)
    by lentinel on Wed May 02, 2012 at 02:01:09 PM EST
    it were possible to bankrupt the DEA.

    What I would like is for Chong to win such a substantial judgement from the DEA that, after paying it, they would be forced to go out of business.

    This is pure fantasy, I realize.

    How long can we, the American people, allow this corrupt and brutal cottage industry to go on unchecked and unbridled?

    What is it with politicians, including Obama, that they can't or won't acknowledge that prohibition brings about violence?

    Yes, it's fantasy (5.00 / 2) (#14)
    by Zorba on Wed May 02, 2012 at 02:02:32 PM EST
    But it's one that I share, lentinel.  {{Sigh}}

    Authoritarians will never be convinced (5.00 / 3) (#15)
    by Anne on Wed May 02, 2012 at 02:14:48 PM EST
    by such an argument - they thrive on telling people what to do and exerting whatever controls are needed to make sure people comply: you will do as they command or you will pay.

    Usually, this is just expressed as them "carrying out the rule of law," unless it is their own behavior and their own actions in question - then we ignore the rule of law in order to "look forward."  This is also known as "nothing to see here, please move along - oh, and did we mention the terrorists will get you if you don't let us have our way?  OK, keep moving."

    There isn't a doubt in my mind that Obama has a fairly wide authoritarian streak in him, which is why there won't be any end to this colossal waste of money and manpower.

    I don't know if I can adequately express how utterly sick and tired I am of it.  All of it.


    Me, too, Anne (5.00 / 2) (#18)
    by Zorba on Wed May 02, 2012 at 02:49:07 PM EST
    Me too.   :-(

    I know (5.00 / 1) (#22)
    by lentinel on Wed May 02, 2012 at 03:21:26 PM EST
    this is out of left field, but I really feel deeply in my gut that directly or indirectly pols that endorse and enforce prohibition are on the take.

    Why is that out of left field? (5.00 / 2) (#23)
    by sj on Wed May 02, 2012 at 04:05:26 PM EST
    I've been considering that pretty much a given.

    Following (5.00 / 1) (#27)
    by lentinel on Wed May 02, 2012 at 04:52:06 PM EST
    up on that - I would love it if some journalist would ask Obama what he is getting out of keeping pot illegal. :)

    Votes. (5.00 / 1) (#28)
    by sarcastic unnamed one on Wed May 02, 2012 at 05:00:06 PM EST
    Costing him mine....n/t (5.00 / 3) (#30)
    by kdog on Wed May 02, 2012 at 05:06:15 PM EST
    But (5.00 / 1) (#34)
    by lentinel on Wed May 02, 2012 at 05:40:51 PM EST
    don't you think it strange that a political person figures that he or she can get more votes for advocating prohibition than opposing it?

    I read that when Kimmel asked the crowd at that decadent press dinner for the folks who had not smoked pot to raise their hands, just about nobody did. Do they all want to go on being part time criminals?

    It is so crazy.


    I think he can get more (5.00 / 2) (#38)
    by sj on Wed May 02, 2012 at 08:36:11 PM EST
    money for advocating prohibition.  I'm quite certain that natural remedies is something that big pharma would oppose.

    "Bingo" (none / 0) (#46)
    by lentinel on Thu May 03, 2012 at 06:51:01 AM EST
    as they say.

    Right on about big Pharma. They certainly wag the Obama dog.

    But I am sensing something even more literally - that the mob profits by the existence of prohibition - just as it always has. And the government is certainly mob-like - if not the mob itself.

    Look how government officials use terms like "take out" to refer to assassination. A mob hit.

    So I am left to conclude that the mob is either a major source of contributions for both political parties, or they are actually the parties themselves. In other words, the two "major" political parties are actually mob "families" - only they work together instead of having wars between themselves for territory. Between the two families, they control everything. Including wars, assassinations and vice.


    No, I don't think it's strange. (none / 0) (#35)
    by sarcastic unnamed one on Wed May 02, 2012 at 07:07:47 PM EST
    However, I do think we're slowly moving toward a change, emphasis on sloooooowly. As in, probably not in my lifetime...

    And (none / 0) (#36)
    by lentinel on Wed May 02, 2012 at 08:09:22 PM EST
    then again, look what's happening in the Netherlands...
    Full speed backwards..

    just because they have smoked pot (none / 0) (#67)
    by TeresaInPa on Thu May 03, 2012 at 07:29:15 PM EST
    doesn't mean they have done it lately.  For some of those people it has probably been 20 to 30 years. I would not have raised my hand either, and I am about as anti drug a person as you will find on the left.

    I appreciate the anti-prohibition views (none / 0) (#44)
    by Jeralyn on Wed May 02, 2012 at 11:11:28 PM EST
    expressed here, but can we please get back to Mr. Chong? Thanks.

    My jaw is on the floor (5.00 / 4) (#40)
    by ruffian on Wed May 02, 2012 at 09:44:58 PM EST
    No words for the horror. I hope they pay dearly.

    9 people were arrested. (5.00 / 2) (#48)
    by VaProg on Thu May 03, 2012 at 10:57:24 AM EST
    8 were released?  Can no one count?  

    Yes, the DEA should be sued -- this was inexcusable.  At the same time, I have to wonder about Chong's "friends".  Did no one ask where he was or follow-up when he didn't show up for exams?  Did no one call?

    Does the seeming absence of "community" in this case scare anyone?  This "you're on your own" behavior will be the undoing of the world.

    I was wondering about that too (5.00 / 1) (#52)
    by ruffian on Thu May 03, 2012 at 12:56:33 PM EST
    There has to be an answer. I wonder if someone called and was told a  blanket statement "everyone had been released".

    He was handcuffed the whole time?! (5.00 / 1) (#49)
    by sarcastic unnamed one on Thu May 03, 2012 at 12:41:06 PM EST
    In addition to everything else?!

    Even if (5.00 / 2) (#54)
    by lentinel on Thu May 03, 2012 at 01:22:06 PM EST
    they hadn't left him there for 5 days, why in the world would they have to put him in a closed cell with no windows and still handcuff him?

    These people are sadists or idiots or both.

    I hope that Chong gets the 20 million as punitive damages.


    Actually in a horrible way (none / 0) (#56)
    by ruffian on Thu May 03, 2012 at 01:52:16 PM EST
    it might have been lucky he was. He might have been successful at his suicide attempt if he had full use of his hands.

    handcuffs (none / 0) (#65)
    by Jeralyn on Thu May 03, 2012 at 06:42:17 PM EST
    Yes the claim says that his deprivation of food and water while handcuffed for 4 1/2 days amounts to torture.

    I'd have to agree with the claim. (5.00 / 3) (#66)
    by sarcastic unnamed one on Thu May 03, 2012 at 06:49:23 PM EST
    sure, good luck with that kid. (5.00 / 1) (#62)
    by cpinva on Thu May 03, 2012 at 04:53:12 PM EST
    the 9th circuit just decided, contrary to all actual evidence, that there is "confusion" about what constitutes torture. mr. chong's case will never see the light of a courtroom, way too much money riding on the continuation of the "war on drugs", and no judge in his right mind will allow these charges to go forward.

    think of it as your little sacrifice for national security mr. chong. heck, maybe they'll give you a nifty medal.

    There IS a problem (none / 0) (#63)
    by bmaz on Thu May 03, 2012 at 05:43:37 PM EST
    ...with access to federal courts on claims, from the restriction on Bivens, Iqbal/Twombly, standing, etc.  That said, there is no reason to believe Mr. Chong should necessarily fall into these cracks that I can see.  And such potential problems was what I was already trying to suss through last night. Would love to hear what thoughts PeterG above or BTD have in this regard.  But, after thinking through it, and reading Padilla and a couple of other cases, Chong looks clean enough to get through that initial gauntlet of 12b6 junk.

    $20M (2.00 / 1) (#58)
    by ScottW714 on Thu May 03, 2012 at 03:03:23 PM EST
    Let's get back to reality, this was bad, but $20M is ridiculous.  4 days, that comes out to nearly a half million dollars an hour.

    I assume that is starting point.

    He should get a nice chunk of change, but instead of going crazy, they should clean house.

    The question I have been wondering is how are all the prisons in the US seriously over crowded, yet this facility is nearly empty and I assume not staffed very well.  How are the people who are locking up the most, bares bones in their own detention center, that doesn't make sense to me.

    It did not happen in a prison (5.00 / 3) (#59)
    by Peter G on Thu May 03, 2012 at 03:56:42 PM EST
    Not even in a jail.  It was a "holding cell" at the DEA office, basically a (federal) police station. I am shocked, however, that there is any such thing as a "holding cell" with no surveillance mechanism, no toilet of any kind, no "panic button" to call a guard in the event of a health emergency (for example), and out of sight and sound of the rest of the office.  That's architectural malpractice, on top of everything else.

    Think I WroteDetention Center (none / 0) (#74)
    by ScottW714 on Fri May 04, 2012 at 11:25:43 AM EST
    And by prisons I should have said nearly every jail in the country as well.  Everyone is overcrowded.

    I think my point was more about the enormous budget going to build near empty facilities where as the rest of the country can't afford that luxury.  


    What About Kidney Fail? (5.00 / 3) (#60)
    by jurisV on Thu May 03, 2012 at 04:00:27 PM EST
    Are you joking?

    First of all he spent 5 days (or 4.5 in some accounts) in jail and then FIVE days in the hospital. Renal shutdown is very serious and potential fatal. The associated uremia can cause heart and brain damage and the kidney shutdown itself can result in damage to the kidneys themselves.

    $20M for a life threatening "mistake" by the DEA is a SMALL sum as far I'm concerned. Your comment of assuming his time of 4 days and dividing $20M by that is just plain ludicrous.

    Although I'm not a medical professional, I have had to deal with kidney failure in my mom. Kidney failure is no joke -- it puts you on the brink of no return, and can have residual effects if you do survive.


    Holding Cell ! (5.00 / 1) (#61)
    by jurisV on Thu May 03, 2012 at 04:05:29 PM EST
    As PeterG said it was not jail -- it was a "holding cell". My mistake for conflating them.

    Your arithmetic stinks (5.00 / 2) (#68)
    by gyrfalcon on Thu May 03, 2012 at 11:20:45 PM EST
    Check it again.

    Right (none / 0) (#69)
    by ScottW714 on Fri May 04, 2012 at 08:37:59 AM EST
    I was thinking 48 hours.

    Just over $200,000/hr, about 4 times what the average American makes in a year.

    The average American makes $1M-$2M in their life time depending on education, and this guy should get $20M for 5 days ?

    Not to be callous, but human life isn't worth that much, especially when that life is still alive and in all likelihood, in tact.  People get limps chopped off, become paraplegics, and kinds of deformities and don't those kinds of ridiculous numbers.


    the $20 million (none / 0) (#64)
    by Jeralyn on Thu May 03, 2012 at 06:40:12 PM EST
    is the maximum. Since this is a claim, that amount is used, but it doesn't mean when he files suit he will ask for that much. The claim says "the amount of damages is up to $20 million")

    Then too bad (none / 0) (#70)
    by sj on Fri May 04, 2012 at 09:01:31 AM EST
    he can't ask for more.

    That's the game Scott.... (none / 0) (#71)
    by kdog on Fri May 04, 2012 at 10:22:43 AM EST
    just as we are told to ignore the maximum prison sentences the media feeds us criminal cases, we can ignore the maximum award in these type of cases.  I was in a fender bender with no injuries and got sued for a cool million.

    I must say this time the number out the gate sounds right...you really can't put a price on this kind of torture.  I'd give the kid the entire DEA budget for a year if I could, and that would still be a pittance comapred to how he must have suffered, physically and more so mentally.  


    If Only... (none / 0) (#73)
    by ScottW714 on Fri May 04, 2012 at 11:22:18 AM EST
    ...this would come of their budget or even if their budget would not be increased next year.

    But that wasn't my point, if $20M is cool for this, then what if he lost a kidney, ended up dead, blind, or a thousand other things that I would consider far worse.

    Guys who are locked up for decades even though they didn't do the crime, rarely see that kind of cash and we both know their suffering is far beyond this kids.

    What is the maximum amount one human being's suffering is worth ?  One the suffering scale as bad as this is, it's peanuts to what happens every day for far more feeble reasons.


    I don't know man.... (5.00 / 2) (#75)
    by kdog on Fri May 04, 2012 at 12:01:34 PM EST
    wrongful imprisonment for 20 years is f*ckin' horrible beyond imagination...but at least you get water.  Dying of thirst has gotta be one of the worst ways to go....dying of thirst handcuffed in a cage when you can hear voices on the other side of the wall forget it.

    Who can put a number on such things but 20 mill doesn't strike me as out of line in the slightest.  Thats a rounding error at Goldman Sachs;)


    link broken (none / 0) (#2)
    by Mike Pridmore on Wed May 02, 2012 at 12:40:30 PM EST
    the video link I posted works (none / 0) (#4)
    by Jeralyn on Wed May 02, 2012 at 12:56:47 PM EST
    fine for me. Thanks for adding another, but please put urls in html format because long ones skew the site and I have to delete the entire comment since I can't edit them. There's a link button at the top of the comment box.

    Link Works Fine Here (none / 0) (#7)
    by ScottW714 on Wed May 02, 2012 at 01:06:10 PM EST
    They locked a suspect (none / 0) (#3)
    by lousy1 on Wed May 02, 2012 at 12:40:58 PM EST
    In a room containing meth? Has the DEA moved on to providing drugs to the cartels now?

    LOL... (5.00 / 1) (#9)
    by kdog on Wed May 02, 2012 at 01:17:32 PM EST
    The CIA is not gonna appreciate another agency moving in on their action!

    yes, it was apparently (none / 0) (#5)
    by Jeralyn on Wed May 02, 2012 at 12:57:25 PM EST
    in the blanket inside the cell.

    Attention: BTD/Armando (none / 0) (#33)
    by bmaz on Wed May 02, 2012 at 05:40:18 PM EST
    I would be really interested to hear what Armando thinks on this, clearly coming, case. I looked up Gene Iredale, stated to be Chong's attorney; he indeed looks very good.  But as Section 1983 only applies to state actors, it strikes me this has to be filed as a Bivens action - maybe with pendant state based counts.  

    But Bivens is such a tough go these days, I am wondering what the road may portend for even an obvious case like this one.  You would like to say "oh, gosh, of course this makes it through the gauntlet", but the remedy path may not be as easy as many assume.

    BTD, you have done, and are doing, a lot more of this recently than I, any thoughts on the impediments that may face Mr. Chong?  (I would actually hope the govt would hand him a few mil to go away immediately because they are so heinously guilty, but that is simply not the DOJ way).

    Thanks for any thoughts.

    Not Bivens -- Federal Tort Claims Act (5.00 / 1) (#37)
    by Peter G on Wed May 02, 2012 at 08:24:03 PM EST
    28 USC 2671-2680, and in particular subsection 2680(f) which waives the sovereign immunity of the U.S. government for claims of "false imprisonment" perpetrated by "law enforcement officers of the United States." This kid was falsely imprisoned the moment they locked him in a "holding cell" even though, according to the story, he was not even being arrested or charged. FTCA is what Iredale was referring to when he said he would first make a "claim" against the U.S., before suing. See sec. 2675.

    Well, (none / 0) (#41)
    by bmaz on Wed May 02, 2012 at 10:29:17 PM EST
    The FTCA is merely the legislative embodiment of, and statutory process for effecting, a Bivens claim. This is so both under the original Federal Tort Claims Act of 1974 (Bivens was a 1971 decision) and, more recently, as supplemented and modified under the Westfall Act of 1988.

    You are mistaken, bmaz, (none / 0) (#42)
    by Peter G on Wed May 02, 2012 at 10:41:02 PM EST
    but this is way too technical to be worth pursuing in this forum.  Suffice it to say that the FTCA goes back to the 1940s, not just to the '70s, and addresses mainly common law torts, not just constitutional torts (as allowed by Bivens). The Westfall Act deals with suits against individual federal employees, while the FTCA addresses suits against the United States and its agencies.  But enough ....

    You are right! (none / 0) (#45)
    by bmaz on Thu May 03, 2012 at 02:54:52 AM EST
    The actual substance of the FTCA does go back to the late 40's. My carelessness. The interaction with Bivens does come into play beginning in the 70's.  I would certainly notice the claim under FTCA, but I do not think I would plead it solely that way.

    Gene Iredale (none / 0) (#43)
    by Jeralyn on Wed May 02, 2012 at 11:06:12 PM EST
    is a terrific attorney. I remember when he was the Chief Trial Attorney at the Federal Defenders Office in San Diego -- he was great then -- and that was 25 years ago.

    I agree with Peter this will be a lawsuit under the Federal Tort Claims Act for a tort violation not a Bivens action.  That's where lawsuits against the DEA are usually brought -- check out the decision in the Princess case, which to me is one of the most fascinating cases in recent years -- the court found in her favor on liability and is now just considering damages.

    The Princess sued for breach of contract (she had been an informant) which she didn't win, but she won on her second claim the DEA breached its duty of care to protect her.

    The landscape is different however with respect to Plaintiff's claim that DEA failed to protecther in the line of duty. The evidence at trial -- primarily the Government's own evidence including detailed documentation and the testimony of two former DEA Administrators and the Deputy Attorney General -- established that DEA sent the Princess on a mission to Colombia without following its own procedures. During this mission, the Princess was captured by a guerilla
    organization, transported in the trunk of a car, and held for over three months in a windowless, dirt floor room where she slept on a straw mattress. The Princess was ultimately released after the Government facilitated the payment of a ransom to her captors.

    if you just want to read the story without the legalese, try this news article. The damages portion of the trial has a lot to do about the medical injuries she suffered in captivity -- she developed MS for one thing. Hard to believe it occurred in 1991 -92 and is still being litigated at the trial court level. As you can tell from the case number, it was filed in 1997.

    I knew nothing about the FTCA until reading the pleadings and rulings in her case, which are all top notch. Former DEA Agent Michael Levine is her expert witness and his report is over 500 pages (available on PACER)

    Chong deserves big money damages for the DEA's actions.


    FWIW (5.00 / 1) (#79)
    by bmaz on Fri May 04, 2012 at 08:50:49 PM EST
    I did some digging into the interaction of the FTCA and Bivens. As can be seen in the notice of claim, Iredale's office  notices under the FTCA (as is required) but states claims under Bivens. The interaction is important as only straight compensatory damages are recoverable under the FTCA, no punitives.  However, punitive damages are recoverable under Bivens per Carlson v. Green, 446 U.S. 14 (1980).

    At any rate, I also think there are some pretty interesting parallels between Chong's case and the Padilla decisions, both the one just announced in the 9th Circuit and the previous one in the 4th Circuit. Also with the Gul Rahman death at the Salt Pit Black Site.  Full discussion here.


    Punitive or actual damages? (none / 0) (#72)
    by diogenes on Fri May 04, 2012 at 11:15:39 AM EST
    Unless one can get punitive damages, Chong can only sue for ACTUAL damages.  Not even a wrongful death will get you twenty million without punitive damages.  No one is saying if there is any actual physical injury since he has been rehydrated.  You can't make a diagnosis of Post-Traumatic Stress Disorder for months and the DEA has offered to pay medical expenses anyway.  Maybe he is so traumatized that he cannot hold a job anymore or else that's not a damage.  Maybe he'll have to miss the semester of school, and maybe not.  

    Where's diogenes theorem? (5.00 / 3) (#76)
    by kdog on Fri May 04, 2012 at 12:02:27 PM EST
    Surely he did something to deserve this...no big deal, eh?

    No problem, KDog (5.00 / 1) (#77)
    by Peter G on Fri May 04, 2012 at 01:00:29 PM EST
    Chong was hanging out with druggie friends, celebrating 4/20, when he was swept up.  (And where did he get that druggie name, "Chong," anyway? I mean, sheesh [or is that "Cheech"?] ....)  Diogenes' Theorem therefore works, as always. ;)

    We ALL have done ... (none / 0) (#78)
    by Yman on Fri May 04, 2012 at 01:26:19 PM EST
    ... something to deserve this, ..

    ... except for the few "Sunday school teachers" among us.

    (Actually, even the Sunday school teachers are fair game under Diogenes Theorem)


    Since YOU bring it up (none / 0) (#80)
    by diogenes on Fri May 04, 2012 at 09:46:57 PM EST
    Maybe it was Chong who was the "innocent roommate" here, or maybe the five day confinement was wrongful but the arrest was not.  Time will tell.
    "Drug Enforcement Administration officials have yet to release any information on the seven people they say they booked at the county jail following the April 21 drug sweep in University City.
    The Watchdog was able to identify four of the suspects through county jail records but could not locate them for comment. They are Kyle Guerin, 22; Vandevrn Bong, 29; Gabriel Jimenez, 21; and Jacky Liang, 24.
    All of them have been released from custody without a pending court date. None have been charged with any crimes, even though the DEA says the raid netted some 18,000 ecstasy pills, hallucinogenic mushrooms, a Russian rifle, two guns and thousands of rounds of ammunition."