Crain v. Krehbiel

• Decision Date: 03 February 1978
• Docket Number: No. C-76-1018-CBR.,C-76-1018-CBR.
• Court: U.S. District Court — Northern District of California
• Parties: Robert CRAIN, Plaintiff, v. James R. KREHBIEL, Robert H. Siegel, and United States of America, Defendants.

443 F. Supp. 202

Robert CRAIN, Plaintiff, v. James R. KREHBIEL, Robert H. Siegel, and United States of America, Defendants.

No. C-76-1018-CBR.

United States District Court, N. D. California.

December 5, 1977.

On Motion for Reconsideration February 3, 1978.

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Vernon L. Bradley, Bradley & Crichton, San Rafael, Cal., for plaintiff.

James L. Browning, Jr., U. S. Atty., George Christopher Stoll, Asst. U. S. Atty., San Francisco, Cal., for defendants.

MEMORANDUM OF OPINION

RENFREW, District Judge.

This action concerns the duty of the United States to informants who provide information about criminal activity.

Plaintiff gave agents of the Drug Enforcement Administration ("DEA") information which led to the seizure of approximately one-half ton of marijuana and to the arrest and conviction of Scott Lamkin in the United States District Court for the Northern District of California. On Monday, October 7, 1974, plaintiff initiated contact with DEA and voluntarily supplied a limited amount of information about Lamkin, who was then a friend of plaintiff and his wife. Plaintiff does not contend that the agent to whom he spoke on October 7, Agent Harry Plattos, made any untrue or improper threats or promises.

On Thursday, October 10, 1974, plaintiff returned to the DEA offices at the request of federal agents who wanted more specific information about the alleged criminal activity. At that meeting plaintiff talked first with Agent Plattos and then Agents James R. Krehbiel and Robert H. Siegel. According to plaintiff, he at first refused to provide more specific information about his charges against Lamkin because the agents would promise only to try to keep his identity confidential and would not categorically assure anonymity. Plaintiff's Deposition of March 1, 1977 ("Plaintiff's Deposition"), at 28-29. According to plaintiff, Agent Krehbiel refused at that stage of the discussion to make any promises that plaintiff would not have to testify, but he did promise protection and funds for relocating plaintiff. Plaintiff's Deposition, at 29. Plaintiff says that he agreed to supply details of the offense only after the agents promised to keep his identity secret. Id., at 29-30. Plaintiff's deposition is somewhat ambiguous about the specific nature of the agents' promises, but a jury could reasonably infer from plaintiff's account that the agents unconditionally promised plaintiff that he would never have to testify and that his identity would never be revealed.

According to the agents, they told plaintiff that DEA would make every effort to maintain the confidentiality of plaintiff but that a court might require disclosure of his identity. Deposition of James R. Krehbiel on October 1, 1976 ("Krehbiel Deposition"), at 12-13; Affidavit of James R. Krehbiel on March 30, 1977 ("Krehbiel Affidavit"), at 2; Deposition of Robert H. Siegel on October 1, 1976 ("Siegel Deposition"), at 6.

After the October 10th meeting, Lamkin was arrested and the cache of marijuana seized.

On or about October 26, 1974, plaintiff met with Agents Krehbiel and James F. Sherrington at a restaurant in San Rafael, California. The agents offered plaintiff a $100 reward, which he refused to accept. The agents also obtained plaintiff's signature on a written statement which they brought with them to the restaurant. At first, plaintiff refused to sign the statement. Plaintiff alleges that Agent Sherrington told him "that they could just burn me in court anyway, whether I signed the statement or not," and that he signed the statement "when Agent Krehbiel said that no one would see it but the judge." Plaintiff's Deposition, at 46-47. Plaintiff does not recall whether the agents told him that he might have to testify if the case against Lamkin went to trial, but he does remember that the agents told him the alternative to signing the statement was that he could be subpoenaed and thereby exposed. Id., at 48. Plaintiff also stated that he told the agents that he wanted to have the charges against Lamkin dropped "if it meant that I would not have to testify," id., at 48-49, so plaintiff apparently was informed of the possibility that he would have to testify if the case against Lamkin went to trial.

Agent Sherrington denies ever telling plaintiff that DEA would "burn" him in court, Deposition of James F. Sherrington on March 1, 1977 ("Sherrington Deposition"), at 21, and Agent Krehbiel also denies that plaintiff was threatened with unnecessary exposure for failure to sign the statement. Krehbiel Deposition, at 21-22; Krehbiel Affidavit, at 3. Agent Sherrington admits that he told plaintiff the DEA would try to keep his identity confidential, Sherrington Deposition, at 36, but insists that he never guaranteed the success of those efforts. According to Agent Sherrington, plaintiff was told that a signed statement was needed in order to comply with DEA policy and to refresh plaintiff's recollection should he ever be called to testify. Sherrington Deposition, at 35.

At the October 26 meeting, plaintiff told the agents that he had information about a certain dealer in cocaine. Plaintiff admits that his statements were completely false. Plaintiff's Deposition, at 49, 80. He said he told these lies because he thought the DEA might drop the charges against Lamkin if he provided more information and that he might therefore not have to testify. Id., at 49-50; Sherrington Deposition, at 22-24.

After the meeting at the restaurant on October 26, plaintiff retained Vernon L. Bradley as counsel. Attorney Bradley claims that on or about November 11, 1974, Agent Dominic P. Petrossi promised him that he would be notified before his client would be subpoenaed. Affidavit of Vernon L. Bradley on April 11, 1977, at 2. Agent Petrossi remembers that he met with Attorney Bradley but none of the details of that meeting. Affidavit of Dominic P. Petrossi on March 31, 1977, at 1-2.

On approximately January 16, 1975, plaintiff was served at his home with a subpoena by Agent Krehbiel. Attorney Bradley was not notified before its issuance.

Plaintiff testified in response to that subpoena at an in camera hearing before Judge Orrick. Defendants do not controvert Attorney Bradley's claim that he had to engage in considerable effort in order to have the hearing held in camera rather than in open court.

In the spring of 1975, plaintiff told Lamkin that he provided the information which led to Lamkin's arrest and conviction. Plaintiff's Deposition, at 62-66. Plaintiff does not contend, and has no basis in the record to contend, that DEA agents ever told or in any way suggested to Lamkin the identity of the informant.

Plaintiff alleges that as a result of the intimidation, threats, and other misconduct of defendants, he suffered extreme emotional distress which required medical treatment, incurred substantial legal expenses, was forced to take time off from his job, and experienced domestic problems which ended in his divorce. On the evening of Lamkin's arrest in October, 1976, plaintiff told his wife that he provided the information leading to that arrest. Plaintiff's Deposition, at 40. When plaintiff spoke to Lamkin after Lamkin was released on bail, Lamkin told plaintiff that he would kill the informant responsible for his arrest. Id., at 80. Plaintiff found a threat on the windshield of his truck after Lamkin's conviction but before Lamkin went to jail, and plaintiff believes that Lamkin was responsible. Id., at 83. Plaintiff believes that on a previous occasion, Lamkin had thrown a twoby-four through the window of an individual who Lamkin suspected was an informant, id., at 84, and plaintiff believes that Lamkin and some of his associates carried firearms. Id., at 81-83.

Plaintiff filed this complaint on May 19, 1976. He alleges causes of action under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671-2680, the United States Constitution, and California tort law.¹ He invokes the jurisdiction of the Court pursuant to 28 U.S.C. § 1346(b) for his FTCA claim, to 28 U.S.C. § 1331 for his constitutional claim and to the pendent jurisdiction doctrine of United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966), for his state claim. On April 4, 1977, defendants filed a motion to dismiss or, in the alternative, for summary judgment. The Court grants in part and denies in part that motion.

I. FEDERAL CAUSES OF ACTION

A. Claims Against the Agents

1. Federal Tort Claims Act

Under the FTCA, the "United States" is liable for tortious injuries to private individuals. 28 U.S.C. § 2674. The Act creates no cause of action against employees of the United States. United States v. Gilman, 347 U.S. 507, 509, 74 S.Ct. 695, 98 L.Ed. 898 (1954); Williams v. United States, 405 F.2d 951, 954 (9 Cir. 1969); Turner v. Ralston, 409 F.Supp. 1260, 1261 (W.D.Wis.1976).

2. United States Constitution

In order to establish an implied right of action against federal agents under the Constitution, plaintiff must show (1) that the agents violated a right secured by the Constitution,² and (2) that an implied damage remedy is necessary or appropriate to compensate the victim and to effectuate the policy underlying the constitutional right. Plaintiff has not established the first element.

Plaintiff claims that defendants have abridged or threatened to abridge his constitutionally guaranteed right of privacy by threatening to publicly disclose his role in the Lamkin case.

Privacy is a word of many meanings, and it is necessary at the outset to identify three different types of privacy which the Constitution can involve. The first is the right of the individual, secured by the Fourth Amendment, to be free from unreasonable government searches and surveillance. Whalen v. Roe, 429 U.S. 589, 599 n.24, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977). This aspect of privacy is not involved in this case. The second kind of privacy interest protected by ...