CA1: thats no way to treat an informant (and the Westfall Act)

Velez-Diaz v. Vega-Irizarry, No. 04-1773, is a Bivens claim (coupled with state law claims), that leads to an appeal from the denial of a motion to substitute the US defendant for the state law claim pursuant to the Westfall Act, 28 U.S.C. § 2679 and dismiss the underlying Bivens claim.  But, unlike others Bivens actions, this one is brought by the “parents of a an undercover *** cooperating witness, who was murdered by a gang member.”  The court concludes, that 1) the US has standing to appeal the denial of the motion to substitute on both the state and Bivens claims; 2) construing 28 U.S.C. § 2679(b), the district court should have allowed the US to be substituted as a party to the state-law claims; 3) the Bivens claim fails because the plaintiffs didn't state enough facts to conclude that the government “created the danger” and therefore the government is entitled to qualified immunity.  But, the court leaves open the question of whether “...the state may violate substantive due process as to cooperating witnesses if it takes certain actions, such as sending a cooperating witness to what the state knows would be his certain death. Such action may shock the conscience by demonstrating 'deliberate indifference.'"