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9th Circuit dismisses Terry family's lawsuit over BP agent's death

The family of slain Border Patrol agent Brian Terry may not sue the federal government over claims that officials acted irresponsibly in the botched "Fast and Furious" investigation, which lost track of hundreds of firearms when they were trafficked into Mexico, the 9th Circuit Court of Appeals ruled Monday.

In an 11-page ruling, the three-judge panel expressed sympathy to Terry's parents, but agreed with a lower court's decision that the family's lawsuit cannot move forward because there are "congressionally-mandated remedies" that are already in place for the survivors of an agent killed in the line of duty. 

Terry was fatally wounded in December 2010 during an exchange of gunfire in the desert between Border Patrol agents and a group of five armed men, known as a "rip crew," who robbed drug smugglers and immigrants crossing through the Sonoran Desert west of Rio Rico.

Terry and two other agents had planned to ambush the men along a narrow desert trail. As the men approached, the agents yelled "police" and then fired shotguns loaded with "less-than-lethal" beanbag rounds. The men fired back, and Terry was hit just above the hip. Terry died from his wounds in the desert as his fellow agents tried to carry him out. 

After the gunfight, two AK-47 rifles found at the scene were connected to Fast and Furious, the "gun-walking" operation run by the Phoenix office of the Bureau of Alcohol, Tobacco, Firearms, and Explosives. 

That operation was fundamentally flawed and it became clear that federal officials had lost track of more than 1,700 firearms, including AK-47 variants and .50-caliber sniper rifles, as well as dozens of handguns. Most of the guns found their way to the Sinaloa Cartel. The Mexican government claims that at least 500 murders in that country were connected to weapons lost in the gun-walking investigation.

Ultimately, the agency recovered around 700 of the weapons. 

Discovery of Fast and Furious set off a congressional investigation led by U.S. Rep. Darrell Issa, R-Calif., that ultimately became a standoff between the White House and Congress. In 2012, Congress held then-Attorney General Eric Holder in contempt for failing to turn over records. 

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That same year, the Terry family filed a lawsuit against the federal government and an Arizona gun store, seeking $25 million in damages, but a U.S. district court judge rejected the suit. 

The family appealed the decision from U.S. District Court Judge David G. Campbell, arguing that ATF officials and a federal prosecutor knowingly created an increased risk to Terry and other law enforcement officers and violated the Due Process Clause of the Fifth Amendment. 

However, the judicial panel disagreed, and said that the statutes the family tried to use to argue their case were not designed for such an legal claim because the Terry's were given a legal remedy through federal death benefits. Moreover, the court said that Congress was the appropriate avenue. 

Two men were sentenced to mandatory life sentences for Terry's murder, while another man, who was wounded in the firefight, was sentenced to 30 years in prison after pleading guilty. Another man was sentenced to eight years after he plead guilty to interfere commerce by robbery. Authorities also sentenced the recruiter, who put together the crew to first degree murder after he plead guilty.  

Two men remain at large in Mexico. 

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CBP

Slain Border Patrol Agent Brian Terry