Bernard v. U.S.
| Decision Date | 25 May 1994 |
| Docket Number | No. 1281,D,1281 |
| Citation | 25 F.3d 98 |
| Parties | Eusebio BERNARD, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. Eusebio BERNARD, Plaintiff-Appellant, v. James CLIFFORD, Brian Fitzpatrick, a certain Unidentified Confidential Informant, and Unidentified Agents, Officers, Employees and Servants of the Drug Enforcement Administration, designated "John and Jane Doe numbered: 1 through 5," jointly and severally, all such defendants being employees of the Drug Enforcement Administration. Defendants-Appellees. ocket 93-6283. |
| Court | U.S. Court of Appeals — Second Circuit |
William Noland, New York City, of counsel, for Eusebio Bernard.
Judith L. Mogul, U.S. Attorney's Office, S.D. of N.Y., New York City, of counsel, for U.S.
Before: WALKER, McLAUGHLIN, and RONEY, * Circuit Judges.
Plaintiff challenges the district court's grant of summary judgment in favor of the United States and a number of federal employees in this action brought under the Federal Tort Claims Act and Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). He alleged he was wrongly arrested as being a seller of crack cocaine. Since the district court correctly held there was no substantial issue of fact as to whether the defendants were justified in arresting and charging Bernard, we affirm the summary judgment for defendants.
Construing the record in the light most favorable to the plaintiff, Eusebio Bernard ("Bernard"), the facts are as follows. On October 16, 1991, Bernard was arrested in connection with a "buy and bust" narcotics investigation. The Drug Enforcement Administration ("DEA") used a confidential informant ("CI") and a cooperating witness to purchase a quantity of crack cocaine from an individual (the "contact") in the area of 150th Street and Broadway in Washington Heights, New York. Although later determined to be wrongly identified, Bernard was arrested as being the contact, the seller of crack cocaine.
The CI had worked as a registered confidential informant with the DEA since 1975 and had participated in this particular "buy and bust" operation since July 1991. The cooperating witness had pled guilty to narcotics charges in an earlier stage of the operation and had agreed with the United States Attorney's Office to assist the DEA in apprehending her supplier. In exchange for her services, the prosecution agreed to submit a letter to the sentencing court seeking a reduction in the cooperating witness's sentence.
The meeting between the CI, the cooperating witness, and the contact was observed by an unidentified DEA agent ("Agent # 1") in one location, and DEA agents James Clifford and Brian Fitzpatrick in another location. When the CI and the cooperating witness met the contact, Agent # 1 contacted Agent Clifford by radio, gave him a description of the contact, and later notified him when the meeting had ended and the direction in which the contact proceeded.
Agent Clifford's view of the meeting had been obstructed, but as the contact left the meeting, Agent Clifford was able to identify him based upon the description provided by Agent # 1 and by comparing the time and location from which the contact emerged with the location of the meeting. Agent Clifford, however, was unable to continue surveillance of the contact after the contact crossed the street and conversed with a small group of men.
Shortly after Agent Clifford lost sight of the contact, two men approached the CI and cooperating witness. One of the men delivered a package to the cooperating witness, who then passed it over to the CI. The CI then signalled the surrounding DEA agents, who in turn arrested the two men later identified as Jose Cruz ("Cruz") and David Lirano ("Lirano"). The package delivered by Cruz and Lirano contained 46.1 grams of crack cocaine.
As the crowd gathered to view the arrest, the CI pointed out to Agent Clifford that the contact was still present at the scene. Agent Clifford recognized the man as being the same person whom Agent # 1 had described as the contact, and whom Agent Clifford subsequently identified based upon the description provided by Agent # 1.
The man thought to be the contact and a companion entered a grocery store where both men were detained by Agent Clifford and two New York City police officers. Bernard, who had been identified as the contact, was arrested after the CI confirmed his identity, and the second man was released. The cooperating witness, who was handcuffed and being questioned by an unidentified white male, then identified Bernard as the individual who had set up the delivery of the crack cocaine.
On October 17, 1991, Agent Clifford filed a criminal complaint against Bernard, Cruz and Lirano in federal district court. A week later, Bernard, Cruz and Lirano were formally presented with the federal charges against them, and on October 29, 1991, a grand jury indicted Bernard and his two co-defendants for violations of 21 U.S.C. Sec. 812, 841(a)(1), (b)(1)(A), (b)(1)(B) and 18 U.S.C. Sec. 2. Cruz and Lirano were also indicted for violating 21 U.S.C. Sec. 846. Bernard, Cruz and Lirano were formally arraigned on those charges on November 11, 1991. All three defendants, who had been detained since their arrest, were denied bail.
Both at the time of his arrest and during his detention, Bernard and several other people, including his co-defendants, his attorney, and people present at the time of his arrest, asserted that Bernard was innocent. In light of these statements, the Assistant United States Attorney, Michael S. Sommer, and Agent Clifford arranged a photographic lineup containing eight photographs, including one of Bernard. Both the CI and the cooperating witness identified the photograph of Bernard as the person with whom they arranged to purchase approximately 50 grams of crack cocaine on October 16, 1991.
Bernard was detained a total of 109 days in the Metropolitan Correctional Center and the Otisville Federal Detention Center until January 31, 1992. He was released upon the entry of a nolle prosequi discontinuing the case.
After Bernard's administrative claim against the DEA was denied, he then brought two actions in district court. The first action was brought under the Federal Torts Claims Act against the United States only for: (1) negligence, (2) false arrest, (3) malicious prosecution, and (4) abuse of process. The second action was a Bivens action brought against Agents Clifford, Fitzpatrick and various unnamed individuals, alleging their actions violated his Fourth Amendment right to be free from unreasonable search and seizure. The district court granted defendants' motions for summary judgment in both actions.
Summary judgment is proper where "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 244, 106 S.Ct. 2505, 2508, 91 L.Ed.2d 202 (1986); Eastman Machine Co. v. United States, 841 F.2d 469, 473 (2d Cir.1988). This Court conducts a de novo review of the district court's determination. Sayers v. Rochester Tel. Corp., 7 F.3d 1091, 1094 (2d Cir.1993).
State law applies to an FTCA claim. The Government's liability under the FTCA is limited to "circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. Sec. 1346(b) (1988). Because the acts or omissions at issue in this case--Bernard's arrest and subsequent detention--both occurred in New York, New York law applies to Bernard's claims under the FTCA.
Bernard's complaint against the United States seeks to recover damages for the breach of the alleged duty to protect him "against the unreasonable risk of being summarily arrested, detained, and denied his freedom of liberty ... when [the agents] collectively and wrongfully failed to accurately and properly verify and confirm plaintiff's identity."
Under New York law, a plaintiff may not recover under general negligence principles for a claim that law enforcement officers failed to exercise the appropriate degree of care in effecting an arrest or initiating a prosecution. See Boose v. City of Rochester, 71 A.D.2d 59, 421 N.Y.S.2d 740, 743 (4th Dept.1979); see also Dirienzo v. United States, 690 F.Supp. 1149, 1155 (D.Conn.1988) ( New York law).
On appeal, Bernard attempts to distinguish Boose on the basis that it is limited to cases relying upon broad principles of negligence where Bernard's claim is "clearly detailed and particularized." The Boose decision does not merely criticize vague negligence claims, but bars all negligence claims arising out of allegedly improper identification procedures during an arrest. The decision limits claims for relief available to plaintiffs in Boose's position to false arrest and malicious prosecution. The district court properly denied Bernard's negligence claim.
To prove the elements of false arrest under New York law, plaintiff must show: (1) the defendant intended to confine the plaintiff, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement, and (4) the confinement was not otherwise privileged. See Benjamin v. United States, 554 F.Supp. 82, 85 (E.D.N.Y.1982). Only the last element is in dispute. Bernard challenges the district court's bases for its finding of probable cause, the existence of which is a complete defense to an action for false arrest. Zanghi v. Incorporated Village of Old Brookville, 752 F.2d 42, 45 (2d Cir.1985).
A finding of probable cause can be made based on the "totality of the circumstances." Illinois v. Gates, 462 U.S. 213, 230, 103 S.Ct. 2317, 2328, 76 L.Ed.2d 527 (1982). The Government...
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