The attorney for the parents of a deceased Marine recruit abused at boot camp is optimistic a federal court will allow a $100-million lawsuit against the military to continue after a hearing Monday in which the government again argued to have the case thrown out.
"We are confident that the Honorable Court will weigh the evidence and satisfy itself as to its power to hear this case," Shiraz Khan, representing the parents of former Marine Corps Recruit Depot Parris Island trainee Raheel Siddiqui, wrote in a text message hours after a judge heard the government's second motion in six months to have the family's wrongful-death suit dismissed.
Ghazala and Masood Siddiqui allege government negligence contributed to their son's death, which occurred March 18, 2016, after a three-story fall from his barracks on Parris Island. Shortly before the fall, he was abused by a Parris Island drill instructor -- one the Marines have since said should not have been supervising recruits because he was being investigated for abusing other trainees.
But the Siddiquis claim the military's missteps began even before their son was an active-duty trainee, which targets the heart of the government's defense.
That defense states any injuries Siddiqui suffered -- in the physical and legal sense -- occurred solely at boot camp while he was an on-the-job service member, which would prevent a civilian court from having jurisdiction over the matter, according to court documents. It also claims any hazing and abuse Siddiqui endured were at the hands of a rogue actor operating outside the scope of military orders.
The defense's argument is grounded in a long-upheld but controversial legal doctrine, one a local military justice expert says has grown beyond its scope and is applied too liberally -- a doctrine another family has recently asked the U.S. Supreme Court to reexamine.
Presently, though, the Siddiquis and the government await U.S. District Court of Eastern Michigan Judge Arthur J. Tarnow's decision on Monday's motion, which is expected sometime in the next two months, according to court officials and confirmed by Khan.
In its effort to have the case thrown out, defense counsel again cited the Feres doctrine, a 1950 ruling that protects the government from being sued by service members injured on active duty.
But "(Feres) has been turned into a blanket prohibition for a service member suing the government for any tort (negligence being one)," according to Brian Magee, formerly Parris Island's lead prosecutor and now a defense attorney representing military clients.
While Magee declined to opine on Feres' merit in the Siddiqui case, he spoke in generalities about the doctrine and said a striking "amount of injustice" results from its usage.
Feres' purpose, according to Magee, is to prevent active-duty service members who've assumed "inherent risk" associated with their jobs from suing the government.
In other words, a Marine shot in combat shouldn't be allowed to sue the government because a reasonable person would understand combat is an obviously risky activity and part of a Marine's duty. Similarly, a Marine recruit injured during properly conducted boot-camp training shouldn't be able to sue because boot camp is an inherently risky activity, one for which the recruit volunteered.
But for Magee, Feres can be problematic when applied to cases such as the one Walter Daniel brought against the government in 2015, a year after his wife, U.S. Navy Lt. Rebekah Daniel, died in a military hospital hours after childbirth, according to the Seattle Times.
The Daniel case -- a wrongful-death lawsuit alleging medical malpractice -- and its associated appeals have been dismissed using Feres, according to the Times.
Legal scholar and University of San Diego professor Richard Custin told the Times that Feres' application in the case was "grossly unfair" because it equated childbirth with a "military activity," which it is not.
Walter Daniel and his attorney petitioned the U.S. Supreme Court in October to amend the ruling with an exception that would "allow service members to sue for medical malpractice the same way civilians can," the Times reported.
In the Siddiqui case, Khan is using a different tactic to attack Feres.
Khan says the government's negligence began when the Corps started recruiting Siddiqui, before the 20-year-old Muslim, Taylor, Mich., resident was on active duty as a Parris Island trainee, according to court documents.
Khan argues the Corps' knowledge of prior allegations of "targeted abuse" against Muslim recruits -- which surfaced before Siddiqui shipped to Parris Island in March 2016 -- by former drill instructor Joseph Felix support that assertion.
Felix was sentenced to 10 years in prison and slapped with a dishonorable discharge, among other punishments, after a military court convicted him of abusing Siddiqui. Felix was also convicted of targeting other Muslim recruits with abuse and hazing.
As for any of Felix's actions, defense counsel argue the government cannot be sued for them because the drill instructor acted of his own will and in violation of orders.
For Magee, a central, if unstated, legal question in the case might concern "foreseeable risk" as it relates to boot camp.
"Nobody argues that bullying, that hazing and abuse, are OK or should be tolerated," Magee said. "But at the same time, is that a foreseeable risk of boot camp?"
Regardless of one's answer to that question or the merits of other cases, Magee said, "the time is certainly here to reexamine the Feres doctrine."
"There are a lot of eyes on it," he said.
This article is written by Wade Livingston from The Island Packet Online and was legally licensed via the Tribune Content Agency through the NewsCred publisher network. Please direct all licensing questions to email@example.com.