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High Court Refuses to Hear Navy Recruit Death Case

November 4, 1991 GMT

WASHINGTON (AP) _ The Supreme Court today refused to hear an appeal by the family of a Navy recruit who died during a training exercise.

The justices declined without comment to use the case to reconsider a 1950 ban on lawsuits against the military by members of the armed forces.

The court’s action let die a lawsuit by the family of Airman Recruit Lee Mirecki, who died in 1988 after instructors forced the panic-stricken sailor back into the water during a rescue training exercise.

The family’s appeal said the military should not be immune from being sued if its allegedly egregious conduct causes injury or death to those in the armed forces.

Mirecki, 19, of Appleton, Wis., climbed out of a swimming pool during the March 2, 1988, rescue exercise at Pensacola (Fla.) Naval Air Station shouting that he was resigning from the Navy.

The recruit, who had a fear of drowning since childhood, said he was unable to continue with the exercise called ″sharks and daisies,″ in which students swim with their hands behind their backs and instructors simulating panicking victims grab them around the head.

Instructors forced Mirecki back into the water and began what is known in the Navy as ″smurfing″ - holding the trainee under water until he is unconscious and turns blue.

Other recruits were ordered to line up with their backs to the pool and sing the national anthem to prevent them from seeing what was going on.

Mirecki was held under water for some time. A pathologist said he suffered fear-induced heart failure and drowned.

Initially, the Navy said Mirecki’s death was accidental but it did not give any detailed explanation. Two months later, it acknowledged what happened after Mirecki’s family heard reports from other recruits and went to members of Congress and the news media for help.

One instructor was convicted of negligent homicide and sentenced to 90 days in the brig. A second trial cleared the officer who ran the Navy school of dereliction-of-duty charges. Four other instructors received administrative penalties. The commander of the Naval Aviation Schools Command was reprimanded.

Mirecki’s mother, Elaine M. Kitowski, accused the Navy of negligence and sued for $5 million.

A federal judge threw out the suit. The 11th U.S. Circuit Court of Appeals upheld that ruling in May.

″Despite the extreme circumstances surrounding Mirecki’s death, we cannot escape the fact his death arose out of an activity incident to his military service,″ the appeals court said.

The appellate court relied on a 1950 Supreme Court ruling that established the so-called Feres doctrine, which protects the military from suits stemming from active duty injuries or deaths to members of the armed forces.

The 1950 decision squelched a suit by survivors of Rudolf J. Feres, a soldier killed in a barracks fire attributed to negligence.

″Although his instructors intentionally subjected Mirecki to ‘smurfing,’ his death resulted from their negligence in persisting in that exercise, not from the intention to kill him,″ the appeals court said.

Lawyers for Mirecki’s mother said the government should not be immune from lawsuits ″when military superiors, through egregious conduct, kill a military recruit during peacetime on United States soil.″

Justices Antonin Scalia and John Paul Stevens previously have said the Feres doctrine should be revised, and Justice Sandra Day O’Connor also has raised serious doubts about the ban it imposes.

At least four justices must vote to hear an appeal before the high court will grant review of the case.

The case is Kitowski vs. U.S., 91-208.