Skip to comments.Feds trying to nix $3.1 million award to mob victim's family (Whitey Bulger case)
Posted on 03/04/2008 11:21:43 AM PST by Ken H
BOSTON - A federal appeals court is weighing whether to overturn a $3.1 million award to the Quincy family of a man tortured and murdered by mobsters who were tipped off by an FBI agent.
Judge Reginald C. Lindsay ruled in 2006 that John McIntyre, a Quincy fisherman who disappeared in 1984, was murdered by Winter Hill Gang leader James "Whitey" Bulger and Stephen "The Rifleman" Flemmi. Former FBI Special Agent John Connolly Jr. had tipped off Bulger that McIntyre, 32, was talking to U.S. Customs agents about a failed plan to send guns to the Irish Republican Army, the judge ruled.
Former Bulger lieutenant Kevin Weeks of Milton led agents to a mob grave in Dorchester, where McIntyre's remains were unearthed in January 2000 along with those of two others Arthur "Bucky" Barret, formerly of Quincy, and Deborah Hussey, formerly of Milton.
Lindsay ordered the FBI to pay $3.1 million to McIntyre's mother, Emily McIntyre, who lives in Quincy.
A Justice Department lawyer Monday argued before the appeals court that the FBI shouldn't be held responsible for what a disgraced agent did more than 20 years ago.
"He was a criminal who had a day job as an FBI agent," Thomas Bondy said of Connolly. Connolly is serving a 10-year sentence on federal racketeering charges for tipping off Bulger about his pending indictment in 1995. Bulger is still a fugitive.
The McIntyre family had sought $50 million in their wrongful death suit against the federal government.
Therefore, we are in no way responsible. Sweet deal, if you can get away with it.
If the FBI was forthcoming in providing evidence against Connelly, I would tend to see the money as a lawyers windfall and rule against it. If the lawyer had to work and extract information out of the FBI, I would like to see the $3.1 million come out of the paychecks of the agents involved in covering it up. The system needs a ration carrot and stick to squash corruption.
Well, he didn't notify the gang as part of FBI direction. It's called "frolic and detour".
I found this article that explains the concept:
While "frolic and detour" might sound like the hottest new band, it isn't. It's a legal principle dealing with the liability employers face when an employee goes to court.
To understand frolic and detour, you must first understand the legal concept called "vicarious liability." The concept is rooted in an employment relationship in which one person employs another person in such a way that the employee becomes the agent of the employer. For example, if a business owner wants to run a cab company, he or she will need to hire drivers. Those cabdrivers are, in essence, doing the employer's work and therefore, are agents for the employer. Tort litigation is perhaps the most frequent user of the vicarious liability theory; this theory allows someone injured by an employee to sue and collect a settlement from that person's employer.
In part, such a system is a reflection of the theories of law and economics. Those theories suggest that the party best situated to bear the cost of a risk ought to be the party to shoulder the risk. Vicarious liability creates exactly that situation. An employer is usually larger, more financially able, and better situated to control situations created as a result of the employer's business than an employee, who is usually subject to the will and wisdom of his employer.
In a way, the employer is viewed as the parent of the employee the employer should control the actions of its employee and failure to cause the employee to behave reasonably results in the employer bearing the cost of the employee's infraction.
Of course, vicarious liability is a blanket rule and in the legal world, nearly every rule has an exception. Frolic and detour is that exception.
A frolic and detour is almost exactly what it sounds like; an employee who ordinarily would be engaged in the activities dictated by the terms of his employment briefly strays from those activities. If he or she strays far enough for the behavior or activity to be completely unrelated, the law labels the employee's actions during that time a "frolic and detour."
If an employee is engaged in a frolic and detour he or she will be personally liable for any tort committed during that time. For employers, a finding that an employee was involved in a frolic and detour at the time he or she committed a tort can be the key to shifting liability away from the employer. In the case of a small business owner, shifting liability can mean the difference between making your year and carrying debt. In some cases, especially in serious injury cases, shifting liability can mean the difference between keeping your business and declaring bankruptcy.
A determination of frolic and detour usually involves the court asking some very specific questions. Commonly, courts inquire whether or not the conduct was of the same general nature as, or was incident to, the kind of activity that the employee was hired to perform. If the tortious conduct was characteristic of the assigned task, a court is less likely to find a frolic and detour. For example, if the employer's company is a trucking company and the employee is a truck driver who injures someone while pulling his work-assigned truck out of a parking lot, even if he was running a personal errand, a court might very well find that there was not a frolic and detour involved.
Increasingly, courts are requiring a nearly total abandonment of the assigned task in order to support a finding of frolic and detour. If you are a small business owner, you should pay careful attention to monitoring your employees, you should carry insurance, and you should be explicit when defining the scope of the employee's task. With a little special attention, most employees can be warned away from tortious activity, keeping employers and themselves out of court and out of harm's way.
I wonder if Howie Carr will talk about this on his show today?
Based on what you know about this case, does it meet the "frolic and detour" standard?
Does F&D apply to government entities as well?
“Based on what you know about this case, does it meet the “frolic and detour” standard?”
I don’t know more than the average person about this case, but the concept would apply if, in essence, the “bad actor” was acting fully outside of the scope of his duties and his agency.
Think of it this way, in a master-agent scenario. An employer is the master, and provides direction to his agents in the course of their employment. If the agent, within the arguable scope of that direction, harms a third party, then the master is responsible to the third party, and the master might also be seen to have a duty to indemnify the agent, if the agent is also required to pay damages for an act.
But there has to be a limit to that principle. If the agent acts totally outside the scope of his direction, and commits actions in total violation of his employer’s direction, then the employer’s culpability should be extinguished at some point and the agent should bear the responsibility for his action.
One valid question to ask is: was the master negligent in managing the agent, under all the facts, such that the master should have known about the danger and could have prevented it? I don’t know all the facts here but I would tend to think the answer is NO, the FBI wasn’t negligent.
The judge rejected the government's contention that Connolly was a rogue agent, who had pocketed $200,000 in payoffs from Bulger and Flemmi over two decades and wasn't acting in the scope of his duty as an FBI agent when he leaked information that led to McIntyre's murder.The FBI was dirty, Connolly had a reasonable expectaion they would overlook his "bonuses", if he followed the mission.
Lindsay found that Connolly's superiors ``up the chain of command" approved using Bulger and Flemmi as informants, even when they were suspects in several investigations by the FBI and other agencies.
``For decades preceding the McIntyre murder, agents of the FBI protected Bulger and Flemmi as informants by shielding them from prosecution for crimes they had committed," Lindsay wrote.
Connolly was motivated by greed, friendship with Bulger and Flemmi, and a desire to promote the FBI goal of taking down La Cosa Nostra by getting information from Bulger and Flemmi about local Mafia leaders, Lindsay found.
Well, that goes to show that its a very fact-specific type of analysis as to what "rule" applies.
It appears that the Judge concluded that the "master" knew what the "agent" was doing and that the master approved 'enough' of it that the bribery part was foreseeable.
pinging to Carr list
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