Barnes v. United States
707 F. App'x 512
| 10th Cir. | 2017Background
- Brandon McFadden, an ATF special agent assigned to Tulsa, worked closely with Tulsa Police gang-unit officers on investigations, controlled buys, and trial preparation.
- From 2007–2008 McFadden joined a conspiracy with TPD officers to steal and resell seized drugs and cash and to plant evidence; he participated in meetings to coordinate testimony and prosecutions.
- McFadden and TPD Officer Jeff Henderson arranged a purported controlled buy implicating Larita Barnes; Henderson wrote a false report and McFadden, Logsdon (a cooperating informant), and Henderson coordinated and testified falsely at trial.
- Barnes was convicted and sentenced to 120 months; convictions were later vacated after an investigation revealed perjured testimony. McFadden pleaded guilty to conspiracy to distribute methamphetamine and admitted abusing his ATF position.
- Barnes sued the United States under the FTCA for negligent training/supervision and multiple intentional torts (false arrest, malicious prosecution, wrongful imprisonment, abuse of process, IIED). The district court granted summary judgment for the government; Barnes appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Failure to exhaust administrative remedies for negligent training/supervision | Barnes argued FTCA notice need only convey facts and circumstances; her administrative claim should suffice | Government: administrative claim did not mention ATF training or supervision, so negligence claims were unexhausted | Affirmed — negligence claims dismissed for failure to present those theories in the administrative claim |
| Scope of employment (respondeat superior) for intentional torts by a federal agent | Barnes argued McFadden acted in the course of duties (case preparation/testimony) and had at least partly governmental purpose | Government: McFadden acted outside scope — framing an innocent person and acting for personal, conspiratorial gain | Reversed in part — factual disputes preclude summary judgment; Oklahoma law permits employer liability where officer abused lawful power vested in him and may have acted, at least in part, to serve governmental purposes |
| Applicability of Oklahoma abuse/usurpation test to law-enforcement misconduct | Barnes relied on Oklahoma/Florida precedents that unlawful acts can still be within scope if they abuse lawful power | Government contended deliberate fabrication is fundamentally outside lawful authority and therefore a usurpation | Court: adopted Oklahoma application of Florida test (abuse vs. usurpation); misconduct can be an abuse of lawful power and within scope; remand for factfinder to resolve motive and scope |
| Whether Barnes forfeited theory that McFadden intended to aid the United States | Barnes cited record (McFadden affidavit and pleadings) showing intent to aid prosecution; argued she preserved the theory | Government argued Barnes failed to raise that theory below | Held: Barnes preserved the argument; McFadden's affidavit and plaintiff's filings create triable issues on intent to serve a government purpose |
Key Cases Cited
- DeCorte v. Robinson, 969 P.2d 358 (Okla. 1998) (adopts Florida abuse-of-lawful-power vs. usurpation test for officer misconduct)
- McGhee v. Volusia County, 679 So.2d 729 (Fla. 1996) (misconduct may be an abuse of lawful power and thus within scope)
- Bosh v. Cherokee County Building Authority, 305 P.3d 994 (Okla. 2013) (scope of employment standard for intentional torts)
- Baker v. Saint Francis Hospital, 126 P.3d 602 (Okla. 2005) (employer relieved if employee had no intent to act for employer; motive matters)
- McNeil v. United States, 508 U.S. 106 (1993) (FTCA requires exhaustion of administrative remedies before suit)
- Fowler v. United States, 647 F.3d 1232 (10th Cir. 2011) (apply state respondeat superior law to FTCA scope questions)