Key Points

  • The Fifth Circuit affirmed a bench-trial finding that the United States is liable under the Federal Tort Claims Act because an FBI agent negligently shot and killed a hostage during a 2018 rescue in Houston.
  • The majority held that the trial court did not clearly err in crediting an eyewitness's testimony that the hostage was blindfolded and bound over the agents' accounts that he threatened them or grabbed a gun.
  • The court held that under 28 U.S.C. § 2678, attorney's fees in an FTCA case must be carved out of the damages award, not paid on top of it.
  • The court reversed an amended judgment that raised damages from $1,915,000 to $2,390,000 to absorb a $475,000 fee award, finding the increase unsupported by the record, and ordered the original award reinstated.
  • Judge Ho dissented, arguing that the agent reasonably perceived a threat and that the discretionary function exception should bar the suit.

A divided federal appeals court on Wednesday upheld a trial judge's finding that the United States must pay for the death of a Houston man whom an FBI agent shot during a 2018 hostage rescue, ruling that the evidence showed the agent fired before identifying his target and at a moment when neither agent faced a threat.

The U.S. Court of Appeals for the Fifth Circuit affirmed liability in a suit brought by the hostage's son and the son's mother, Justina Garcia. Judge Carl E. Stewart wrote for the court, joined by Judge Higginson. Judge James C. Ho dissented, arguing that the government should not be liable at all.

The majority also reversed an amended judgment that had raised the family's damages by exactly $475,000, the sum the trial judge first awarded separately as attorney's fees. The court ordered the original $1,915,000 award reinstated, with fees limited to 25% of that total. The Federal Tort Claims Act, the law that lets people sue the United States over wrongs by federal employees, caps fees at that percentage, and Judge Stewart wrote that "the statute requires the attorney's fees to be carved out of the total damages award" rather than paid on top of it.

The case began on Jan. 24, 2018, when two intruders entered the Houston home of Ulises Valladares and his 12-year-old son, Ulysses. According to the opinion, they bound both with duct tape, pressed the father for information about his brother, and took him away, still bound. The boy broke free and called for help from a neighbor's house, and law enforcement brought in the FBI, which sent a SWAT team.

Special Agents Jeffrey Hawkins and Gavin Lappe approached the house where the father was being held in the dark, without a flashlight. Agent Hawkins broke a window with a Halligan tool and dropped the tool inside. He later said he saw a silhouette leaning out of the window in what appeared to be a "shooting stance," then heard two shots. Agent Lappe said "I shot" and "he grabbed my gun." The person he shot was the hostage, who died shortly afterward.

In September 2018, Brooke Pearce, acting on the son's behalf, first sued Agent Lappe personally for violating the Constitution. In 2021 a different Fifth Circuit panel granted him qualified immunity. That panel concluded that the agent shot the father accidentally, writing, "Such accidental conduct does not result in a Fourth Amendment seizure." The family's claim against the government went to a three-day bench trial in October 2024, and on March 3, 2025, the district court found Agent Lappe negligent, "even grossly negligent."

The trial court also rejected the government's reliance on the act's discretionary function exception, which "preserves the federal government's immunity . . . when an employee's acts involve the exercise of judgment or choice." On appeal, the government attacked more than a dozen of the trial court's factual findings and argued that together they showed "that the district court was issuing a judgment based on a course of events that never happened."

The majority relied heavily on Sophia Heath, who according to the record had agreed to help the kidnappers by holding the father at her home and was in the room when he was shot. Neither agent testified at trial, though Agent Hawkins's deposition was admitted. Heath testified that the father, blindfolded with his hands bound, rose from a couch under the window when the glass broke. "Upon standing, Ulises pushed the window curtains aside and was immediately shot," the opinion recounted.

"The undisputed fact that Ulises was blindfolded with his hands bound during the entire incident supports Heath's testimony that Ulises could not have seen the agents, pointed his hands at the agents, grabbed an agent's gun, physically threatened an agent, or gotten into a shooting stance," Judge Stewart wrote. He added that the trial judge's decision to believe Heath over the agents was a credibility determination owed "great deference." The majority agreed with the government that the trial court's reliance on the autopsy report "cannot carry the day" but held that other evidence supported the findings.

On damages, the trial court first awarded $611,000 to Garcia and $1,304,000 to the son, plus $475,000 in fees "representing approximately 25% of the total award." After the government objected to a fee award on top of the damages, the trial court, without expressly ruling on the motion, raised the awards to $762,525 and $1,627,475. Judge Stewart wrote that the court did so "so that the attorney's fees would stay the same but still be encompassed by the increased damages award," and that the higher figures were "not independently supported by the record."

The family had asked the trial court for at least $5,000,000 each and lost, but the appeals court treated their cross-appeal as abandoned because they did not brief it.

In dissent, Judge Ho wrote that "it's the kidnappers who should be punished—not the FBI agents who attempted to rescue the hostage in good faith." He contended that the hostage need not have seen or touched anyone for Agent Lappe to fear for his life. "A figure standing on a couch, with hands held together, raised forward—if merely to push open a curtain—could easily resemble a person in a threatening shooting stance, especially during a high-stakes rescue mission," he wrote.

Judge Ho would have held the negligence findings clearly erroneous and applied the discretionary function exception to bar the suit. "But we need to stop blaming law enforcement, and start blaming criminals, when people are harmed by their crimes," he wrote. His dissent did not address the fee ruling.

The case returns to the U.S. District Court for the Southern District of Texas, which must reissue its original $1,915,000 damages award with attorney's fees limited to 25% of the total. The appeal is No. 25-20180.