Is an ATF Forensic Chemist an Investigative or Law Enforcement Officer?

In yesterday’s post, I discussed Kristine Guerra‘s new “Stolen Freedom” series and specifically the case of Kristine Bunch, whose felony murder conviction was thrown out after sixteen years based on a Brady violation. Thereafter, Bunch filed a couple of lawsuits, including a lawsuit against William Kinard, a forensic chemist with the ATF. This lawsuit was brought under the Federal Tort Claims Act (FTCA), asserting claims of malicious prosecution and intentional infliction of emotional distress. The  lawsuits were eventually consolidated, and the question of whether the consolidated lawsuit will go forward might hinge on an interesting question: Is the forensic chemist an investigative or law enforcement officer?

I discussed the basic allegations in the case in yesterday’s post, but here they are again straight from the mouth of the United States District Court for the Southern District of Indiana in Bunch v. Frank, 2015 WL 3948889 (S.D.Ind. 2015):

Bunch’s Greensburg, Indiana mobile home caught fire in the early morning hours of June 30, 1995, killing her three-year-old son, Anthony….Indiana Fire Marshal investigators Bryan Frank and James Skaggs gathered evidence from Ms. Bunch’s home and quickly concluded that “the fire was deliberately set, that accelerants had been used to cause the fire, that there were ‘pour patterns’ in the burned out home where accelerants had been poured, and that the fire had started in two separate locations, one of which was the bedroom in which Anthony was sleeping.”…

In support of their theory, Frank and Skaggs sent the evidence to the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) to be tested. William Kinard, a forensic chemist with the ATF, was assigned to the case. Kinard concluded that several samples, including those from Anthony’s bedroom (Exhibit 8) and the living room (Exhibit 6), had no traces of Heavy Petroleum Distillates (“HPDs”) or any other accelerants. He documented these findings in his initial report and communicated them to Skaggs and Frank.

Because Kinard’s findings were inconsistent with Skaggs and Franks’ theory of the case, they “caused Kinard’s report to be altered so that it falsely stated that accelerants were found in exhibits 6 and 8,”…and “Kinard agreed to alter his report to state that accelerants were found in exhibits 6 and 8, and concocted an ‘official’ report which falsely so stated.”…Kinard also agreed not to include his finding that the areas that tested positive for HPDs were only “consistent with the presence of kerosene, for which there was an innocent explanation”; rather his official report would state that “they were consistent with a much broader array of HPDs[.]”…Skaggs, Frank, and Kinard submitted only the “official” report to the Decatur County State’s Attorney in July 1995.

These are shocking allegations, but they may never be heard by the court. The United States moved to dismiss Bunch’s complaint for lack of subject matter jurisdiction and failure to state a claim. Specifically, it claimed the lawsuit is “barred by the intentional torts exception to the FTCA.” Bunch countered that “the FTCA specifically waives sovereign immunity for intentional ‘acts or omissions of investigative or law enforcement officers of the United States Government.'” The United States agreed with this legal principle but countered that the forensic chemist was not an “investigative or law enforcement officer.”

So, who is right? Pursuant to statute, an “investigative or law enforcement officer” is defined by statute as “any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law.” Bunch claimed that 

Kinard “was tasked with executing a forensic search of items recovered from [Bunch’s] mobile home, to determine whether that search would reveal chemicals that would assist in the criminal prosecution of [Bunch]. This clearly constituted a search.”

The United States countered that a “forensic search” is not a search, and the court, in dicta, tentatively agreed with this position, noting that “[i]t appears to the Court that the trend has been to narrowly define what constitutes a ‘search’ for purposes of determining whether a person falls into the law enforcement proviso.”

Luckily for Bunch, however, the court ultimately concluded “that the question is not whether Kinard was conducting a ‘search’ at the time of the alleged wrongdoing, but rather, whether he had the legal authority to do so.”

On this point, the United States submitted the affidavit from Lisa Boykin, Chief of the Human Resources Operation Division of the ATF, who stated, inter alia, that

the job duties and responsibilities of a Chemist do not include the duty to enforce any of the criminal, seizure, or forfeiture provisions of the laws of the United States, or the authority to carry firearms, serve warrants and subpoenas issued under the authority of the United States, make arrests, or make seizures of property subject to forfeiture of the United States.

The court, however, “that this issue cannot be resolved on the pleadings alone; rather, evidence is needed to determine the contours of Kinard’s job with the ATF in order to determine whether the law enforcement proviso applies in this case.”

And that’s where things current stand. This is a pretty fascinating and important case. It seems that, in a lot of cases, there is involvement by quasi-law enforcement officers, which means that the interpretation of the FTCA exception could decide whether many lawsuits are heard or dismissed. For instance, in the Adnan Syed case, the disinterment of the body of Hae Min Lee was supervised by Dr. William Rodriguez, the Forensic Anthropologist and Chief Deputy Medical Examiner for the Armed Forces Institute of Pathology. Was he an investigative or law enforcement officer?

Of course, the Bunch case not only calls into question how we should interpret the exception; it also calls into question whether the exception should be expanded. There are obvious reasons why the United States government should be given sovereign immunity for intentional misconduct by non-governmental agents. There are also obvious reasons why the government should be given sovereign immunity for intentional misconduct by law enforcement officers with lesser powers. Indeed, the exception at issue seems to be based on the proviso: “With great power comes great responsibility.”

That said, especially in the CSI era, isn’t the power to manipulate forensic evidence and reports every bit as dangerous as the power to arrest, search, and seize? And, as such, shouldn’t the exception apply to federal forensic experts?

-CM