A lawsuit against the FBI for its role in a 2015 terror attack in Texas has taken a detour over discovery issues.
Bruce Joiner, a security guard shot in the leg by two radicalized Islamists at a "Draw Muhammad" event in the North Dallas suburb of Garland in May of that year, learned months later that an FBI agent had been undercover in the terrorist cell that executed the attack. The agent had texted one of the assailants to "Tear up Texas" a few days before the attack, and was also in a separate vehicle directly behind the two terrorists taking pictures of them just seconds before they opened fire at a perimeter parking checkpoint.
The undercover agent, described in court documents as being dressed in Middle Eastern attire, tried to flee the scene when the shooting began but was stopped by local police.
Attorneys for the FBI asked for a dismissal in recent federal court filings, but have taken the extra step of asking the court to delay all discovery until the court rules on the dismissal motion.
Joiner is suing the FBI for liability and is asking for just over $8 million in damages, but has maintained in other media interviews and also through his attorney that he is bringing the suit primarily to get to the bottom of the FBI's involvement leading up to the attack.
If discovery is halted, and should the case later be dismissed, Joiner would leave the case empty handed, no closer to understanding why an FBI agent who had contacts with the attackers was so close when the gunfire started but did nothing to prevent the attack and instead tried to flee.
"I don't know of any undercover agent that can allow their fellow officers and citizens to be fired upon in the course of an investigation," Joiner told Dallas television station KTVT in late 2016. "You have to stop that before that happens."
While the federal government can be sued for damages in some situations, it also has immunity from tort lawsuits in cases where the government is carrying out policy so that persons cannot stop the federal government from carrying out their policy objectives by filing liability lawsuits. This is known as the "discretionary function" exception.
Joiner's attorney, Trenton Roberts, hit back against the government's motion to dismiss without discovery last week, arguing that "by conducting discovery, [Joiner] will be able to provide a more sufficient record for the Court to rule on the crucial factual questions pertinent to the ‘discretionary function.'"
"In arguing that [the FBI] has the prerogative to weigh ‘harm to innocent victims resulting from a covert operation' against the need for ‘maintaining secrecy,' Defendant is effectively claiming that the FBI had discretion to allow potentially hundreds of American citizens to be attacked in a dubious attempt to maintain [the FBI agent's] cover," Roberts wrote in the filing.
"Put simply, Defendant's motion to dismiss would provide any law enforcement officer immunity to aid or assist a terrorist massacre on American soil, in the name of ‘maintaining secrecy.' This is simply not the law," Roberts noted, adding later, "the judgment exercised by the FBI was not of the kind that Congress intended to shield from civil claims."
It is not uncommon in civil cases for discovery to happen between the litigating parties even though a motion for dismissal will be ruled upon later.
At various points in 2017, Republican senators Ted Cruz (Texas), Chuck Grassley (Iowa), and Ron Johnson (Wis.), all made inquiries to the Justice Department about the issue, especially after a '60 Minutes' report in March highlighted for a national audience the FBI's close proximity to the attack.
In a May 2017 hearing, less than one week before he was fired by President Trump, then-FBI Director James Comey told Sen. Cruz in a hearing of the Senate Intelligence Committee, "I can't go into the details of [the Garland operation] here, because they're classified, but I think a fair thing to say is the media reports are highly misleading."
The Garland attack is one of the legacies of the assault on the Charlie Hebdo offices by Islamist radicals over the satirical magazine's portrayal of the Prophet Muhammad. That attack killed 12, and injured 11 more.
Less than two weeks after the attack in Paris, a Muslim community held a fundraiser at the Curtis Culwell Center in Garland called, "Stand with the Prophet in Honor and Respect." The fundraiser drew heavy protests.
In response to the fundraiser, self-described free-speech advocate Pamela Geller created the "Draw Muhammad" event at which Joiner was providing security along with the Garland Police Department.
The two attackers, Elton Simpson and Nadir Soofi, were killed within yards of where they opened fire. It was the first attack on American soil for which ISIS claimed responsibility.
Joiner filed suit in October of last year.