Carrero v. Farrelly

Decision Date19 September 2017
Docket NumberCIVIL NO. JKB–16–3939
Citation270 F.Supp.3d 851
Parties Mirna Rubidia ARTIGA CARRERO, Plaintiff, v. Christopher FARRELLY, et al., Defendants.
CourtU.S. District Court — District of Maryland

Sirine Shebaya, Oakland, CA, Andre Segura, Pro Hac Vice, Lee Gelernt, Pro Hac Vice, Omar C. Jadwat, Pro Hac Vice, New York, NY, David Robert Rocah, ACLU of Maryland, Kevin D. Docherty, Brown Goldstein & Levy, LLP, Daniel Frank Goldstein, Brown Goldstein and Levy LLP, Baltimore, MD, for Plaintiff.

James J. Nolan, Jr., Baltimore County Office of Law, Towson, MD, Neil R. White, Office of the United States Attorney, Greenbelt, MD, for Defendants.

James K. Bredar, United States District Judge

MEMORANDUM

Mirna Rubidia Artiga Carrero ("Plaintiff") filed a five-count complaint against various state and federal officials and entities seeking declaratory and injunctive relief, compensatory damages, and punitive damages stemming from her alleged unlawful arrest in 2014, which she contends was caused in part by federal policy regarding the identification and apprehension of aliens, like her, that are subject to a final order of removal. Pending before the Court is a motion to dismiss Counts 1 and 2 pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, or in the alternative for summary judgment, filed by Defendants Christopher Farrelly and Baltimore County (the "State Defendants"). Also before the Court is a motion to dismiss Counts 3 through 5 pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, filed by Defendants the United States of America; Jefferson B. Sessions III, Attorney General of the United States; John F. Kelly, Secretary of the U.S. Department of Homeland Security ("DHS"); and Thomas D. Homan, Acting Director of Immigration and Customs Enforcement ("ICE") (the "Federal Defendants"). The motions have been fully briefed (ECF Nos. 13, 24, 27, and Nos. 28, 31, 32), and no hearing is required, Local Rule 105.6 (D. Md. 2016). For the reasons set forth below, the State Defendants' motion will be denied and the Federal Defendants' motion will be granted in part and held in abeyance in part.

I. Background

Plaintiff is a citizen of El Salvador residing in Maryland. She originally entered the United States in 2005, at which time she was apprehended by United States Border Patrol and served a Notice to Appear before an immigration judge. In February 2006, Plaintiff failed to appear for her scheduled hearing and an order of removal was entered against her in absentia. Sometime shortly thereafter, ICE officials entered a civil warrant of removal for Plaintiff in the National Crime Information Center ("NCIC") database.

The NCIC is an electronic database hosted by the Federal Bureau of Investigation ("FBI") and accessed daily by federal, state, and local law enforcement. The NCIC contains extensive criminal and civil identification records that are divided into twenty-one categories or "files." The database includes records of stolen property (e.g., boats, guns, license plates, vehicles) and records of persons (e.g., arrest records, wanted persons, sex offenders, gang members). One such file is the "Immigration Violator File," which includes records of aliens, like Plaintiff, with outstanding civil warrants of removal.

Throughout much of its history, the NCIC database did not include identification information for individuals with outstanding civil immigration warrants. This decision was based on FBI policy that limited "use of the NCIC Wanted Person File only to those persons for whom warrants have been issued and who may be arrested by any law enforcement officer with the power to arrest ." (Compl. Ex. 7, ECF No. 1–7, Memorandum for Joseph R. Davis, Assistant Director–Legal Counsel FBI, from United States Department of Justice Office of Legal Counsel, at 1 (April 11, 1989) (emphasis added).) Because state and local law enforcement officers "are not authorized to execute INS warrants of arrest,"id. at 2 n.3, individuals subject to such warrants cannot be arrested "by any law enforcement officer with the power to arrest," id. at 1. Therefore, the memorandum concluded that civil warrants of removal could not be included in the NCIC database consistent with FBI policy. The OLC reaffirmed this view in a subsequent memorandum issued in 1996. (ECF No. 1–8, Memorandum Opinion for the United States Attorney Southern District of California (Feb. 5, 1996).) However, in late 2001 and early 2002, the Department of Justice, through its then-subordinate agency the Immigration and Naturalization Service, shifted course and began to include records of individuals with outstanding civil warrants of removal in the NCIC. Plaintiff is one such individual.

II. Allegations of the Complaint1

On August 26, 2014, at approximately 12:30 a.m., Plaintiff was driving home with her sister after completing her shift at a fast food restaurant. She came to a stop at a red light next to a Baltimore County police patrol car driven by Defendant Officer Farrelly. Plaintiff alleges that Officer Farrelly turned to look at her and observed that she was Latina. After both vehicles proceeded through the intersection, Officer Farrelly moved into the right lane behind Plaintiff and activated his signal lights for her to pull over. Plaintiff stopped immediately. Officer Farrelly approached the vehicle and asked for her driver's license and proof of insurance, and Plaintiff provided her license which was marked "Not Acceptable for Federal Purposes." (ECF No. 1 ¶ 20.)2

Approximately ten minutes later, Officer Farrelly returned to Plaintiff's vehicle and informed her that he had stopped her because she did not have insurance. However, Plaintiff had valid insurance for the vehicle at the time of the stop. Officer Farrelly then went back to his vehicle. During one of his trips to his vehicle Officer Farrelly entered Plaintiff's identification information in the NCIC database, which revealed that she had an outstanding civil warrant of removal but no criminal record. Ten more minutes passed and Officer Farrelly again approached Plaintiff's car and, without mentioning her insurance, asked her a series of questions regarding her immigration status. After questioning Plaintiff about her family and immigration history, Officer Farrelly stated that he "had to arrest her" and needed to "investigate her situation further and ... get more information." (ECF No. 1 ¶ 25.)

Officer Farrelly placed Plaintiff in the back of his patrol car and transported her to the Howard County Detention Center in Jessup, Maryland. During the ride, Officer Farrelly used his cell phone to call someone who appeared to be instructing him to bring Plaintiff to the detention center. Officer Farrelly and Plaintiff arrived at approximately 2 a.m. and were met in the parking lot by an ICE agent who took custody of Plaintiff and placed her in handcuffs. After being processed in Baltimore the next day, Plaintiff was taken to an immigration facility in Snow Hill, MD, where she remained for six weeks.

Plaintiff alleges five causes of action stemming from the entry of her information in the NCIC database and her subsequent seizure based on that information. She brings two claims against the State Defendants pursuant to 42 U.S.C. § 1983 and Monell v. Dep't of Soc. Servs. of City of New York , 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978):

• Count 1–unreasonable seizure in violation of the Fourth and Fourteenth Amendments; and
• Count 2–discrimination on the basis of race (and/or national origin) in violation of the Fifth and Fourteenth Amendments.

Her remaining three claims implicate only the Federal Defendants. First, she seeks declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201 and 2202, alleging that she is at imminent risk of suffering an unlawful seizure in the future in violation of the Fourth Amendment (Count 3) and that the individual Federal Defendants have exceeded their statutory authority by including civil warrant information in the NCIC database (Count 4). Specifically, she seeks a declaration "that the federal defendants' policy and practice of entering and disseminating civil immigration information to state and local law enforcement officials through the NCIC database is not authorized by statute," and an injunction prohibiting the Federal Defendants "from maintaining a record of [her] civil immigration information in the NCIC database," and ordering "its immediate expungement from that database." (ECF No. 1 at 17.) Finally, Plaintiff seeks damages against the United States pursuant to the Federal Tort Claims Act ("FTCA"), alleging that the federal government caused her to be falsely arrested and imprisoned (Count 5).

III. Standard of Review
A. Standard for Dismissal under Rule 12(b)(1)

The Plaintiff bears the burden of proving subject-matter jurisdiction. Adams v. Bain , 697 F.2d 1213, 1219 (4th Cir. 1982) ; see also Kerns v. United States , 585 F.3d 187, 192 (4th Cir. 2009) (noting challenge may be either facial, i.e., complaint fails to allege facts upon which subject-matter jurisdiction can be based, or factual, i.e., jurisdictional allegations of complaint are not true); Richmond, Fredericksburg & Potomac R.R. Co. v. United States , 945 F.2d 765, 768 (4th Cir. 1991) ("When a Rule 12(b)(1) motion challenge is raised to the factual basis for subject matter jurisdiction, the burden of proving subject matter jurisdiction is on the plaintiff."). In the case of a factual challenge, it is permissible for a district court to "consider evidence outside the pleadings without converting the proceeding to one for summary judgment." Richmond, Fredericksburg , 945 F.2d at 768 (citing Adams , 697 F.2d at 1219 ). A challenge to a plaintiff's standing "implicates th[e] court's subject matter jurisdiction." Long Term Care Partners, LLC v. United States , 516 F.3d 225, 230 (4th Cir. 2008).

B. Standard for Dismissal under Rule 12(b)(6)

A complaint must contain "sufficient...

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