DeLong v. United States, A 82-487 Civ.

• Decision Date: 31 October 1984
• Docket Number: No. A 82-487 Civ.,A 82-487 Civ.
• Citation: 600 F. Supp. 331
• Parties: Dennis DeLONG and Ronald Cole, Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Alaska

600 F. Supp. 331

Dennis DeLONG and Ronald Cole, Plaintiffs, v. UNITED STATES of America, Defendant.

No. A 82-487 Civ.

United States District Court, D. Alaska.

October 31, 1984.

Donald D. Hopwood of Kay, Christie, Fuld, Saville & Coffey, Anchorage, Alaska, for plaintiffs.

Michael R. Spaan, U.S. Atty., Anchorage, Alaska, for defendant.

MEMORANDUM AND ORDER

FITZGERALD, Chief Judge.

Plaintiffs DeLong and Cole have brought claims against the government for injuries sustained when they were working as civilian employees at the Adak Naval Station. Marine guards had not been informed that the plaintiffs had permission to be at their job site within a restricted area. The guards apprehended and held the plaintiffs, and allegedly struck and kicked them inflicting the injuries for which plaintiffs now claim compensation.

The plaintiffs allege liability under the Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2671-2680 (1982), in two different counts in their complaint. First, they claim the marine guards were "investigative or law enforcement officers", thus allowing recovery for intentional torts under 28 U.S.C. § 2680(h). Second, they claim that military personnel other than the marine guards themselves were negligent in failing to inform the guards that the plaintiffs were legitimately within the restricted area.

The government moved to dismiss for lack of subject matter jurisdiction, arguing, first, that the marine guards were not "investigative or law enforcement officers" within the statutory definition, and second, that even a claim sounding in negligence would be barred because it "arises out of" an alleged intentional tort.

The Federal Tort Claims Act (FTCA) confers on district courts

exclusive jurisdiction of civil actions on claims against the United States, for money damages ... for ... personal injury ... caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under 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. § 1346(b). The FTCA provides that "the United States shall be liable ... in the same manner and to the same extent as a private individual under like circumstances." Id. § 2674. There are, however, a number of exceptions to this waiver of immunity. There is no liability for "any claim arising out of assault, battery, false imprisonment, or false arrest" unless such claim is the result of "acts or omissions of investigative or law enforcement officers of the United States Government." Id. § 2680(h).

In their first claim, plaintiffs DeLong and Cole allege assault, battery, false imprisonment, and false arrest. The government maintains that these particular torts are included within a specific exception to the general waiver of sovereign immunity embodied in the FTCA. Title 28 U.S.C. § 2680(h) provides in relevant part that the FTCA waiver does not apply to:

Any claim arising out of assault, battery, false imprisonment, false arrest ...: Provided, That, with regard to acts or omissions of investigative or law enforcement officers of the United States Government, the provisions of the FTCA shall apply to any claim arising ... out of assault, battery, false imprisonment, false arrest .... For the purpose of this subsection, "investigative or law enforcement officer" means any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law.

Plaintiffs respond that the marine guards who detained them are "investigative or law enforcement officers" within the meaning of the proviso; the government takes the opposite position that the guards are not investigative or law enforcement officers. Resolution of this conflict depends therefore upon whether the marine guards are empowered by law "to execute searches, to seize evidence, or to make arrests for violations of Federal law." See Solomon v. United States, 559 F.2d 309, 310 (5th Cir.1977).

Ordinarily, this issue can be readily determined. In the typical case when an individual complains under the FTCA that he has been victimized by an overzealous exercise of government police power, the citizen will likely have been confronted by an officer who has been statutorily granted the powers necessary to qualify him as a law enforcement officer. See, e.g., 18 U.S.C. § 3050 (powers of Bureau of Prisons officers); Id. § 3052 (powers of Federal Bureau of Investigation officers); Id. § 3053 (powers of federal marshals and deputies); Id. § 3061 (powers of postal inspectors); 26 U.S.C. § 7608 (powers of Internal Revenue officers). In such a case, once the relevant statutory provision has been identified, the court need not make further inquiry. See Hernandez v. Lattimore, 612 F.2d 61, 64 n. 7 (2d Cir.1979) (18 U.S.C. § 3050). Conversely, several courts have looked to the statutory delegation of powers and have concluded that the relevant officers were not law enforcement officers within the meaning of § 2680(h). See, e.g., Ames v. United States, 600 F.2d 183, 185 n. 3 (8th Cir.1979) (28 U.S.C. § 547 does not empower U.S. Attorneys to search, seize, or arrest); Art Metal-U.S.A., Inc. v. United States, 577 F.Supp. 182, 185-86 (D.D.C.1983) (5 U.S.C. Appendix I, § 6(a)(4) authorizing Inspector General of GSA to issue subpoenas does not qualify him as law enforcement officer).

In this case there is no specific statutory provision delineating the powers and duties of marine guards from which it can be readily determined whether they are law enforcement officers. Plaintiffs argue that in carrying out their assigned duties, marine guards may on occasion detain individuals, search them for weapons, intelligence gathering equipment, and contraband, and seize such items that are found. Plaintiffs also contend that marine guards receive additional training in the use of deadly force, the rules of engagement, and procedures for the apprehension of individuals. Since guards are authorized to perform such duties, plaintiffs conclude they properly fall within the statutory definition of law enforcement officer provided in § 2680(h).

The government acknowledges that marine guards do, on occasion, perform the above-described duties, but it maintains that such duties are merely "incidental" to their primary function as sentries. According to the affidavit of a marine guard officer, the guards' main task is to prevent unauthorized access to restricted areas. Once an unauthorized individual is identified, the guards apprehend and detain him and then immediately notify the Naval Station, Adak Security Department. The individual is then turned over to naval security personnel who are independent of the marine barracks and are responsible for law enforcement at Adak. The authority of the guards is thus limited to the initial apprehension and detention of suspected intruders until naval personnel are notified. Since it is the responsibility of naval personnel to maintain law enforcement at Adak, the government concludes that the incidental duties performed by guards should not qualify them as law enforcement officers within the meaning of § 2680(h). I agree.

In order to determine precisely what duties and powers are entrusted to marine guards, I required the government to submit the pertinent regulations that detail their duties. The government submitted an excerpt from the MOS Manual that pertains to guards rated at MOS 8151; for purposes of comparison, the government also submitted an excerpt from the MOS Manual setting forth the duties of military police rated MOS 5811 through 5814, and an excerpt from the local instructions for Adak detailing the duties of naval security personnel.

The regulations submitted by the government confirm the government's position that a marine guard is not a law enforcement officer. A guard's duties in relevant part include:

1. Enforces military regulations and orders.

2. Controls entrances to military posts, station or other establishments.

3. Verifies authenticity of passes and identification cards of military personnel, civilian employees, and visitors afoot or in motor vehicles, entering or leaving installation.

4. Prevents unauthorized removal of government property.

From these listed duties it is evident that, on occasion, a guard will be required to apprehend and detain an individual. It is also consistent with these duties that a guard may have to disarm an individual or temporarily seize an item that the individual is carrying. It is also equally evident that the regulations do not authorize guards to conduct searches, seize evidence, or arrest individuals for violations of federal law.

The distinction propounded by the government between the incidental duties performed by guards and the duties of recognized law enforcement officers can best be demonstrated by comparing the guard's duties as listed above with those of military police and naval security personnel. According to the MOS Manual, the duties that a military police officer is charged with include (depending upon rank):

8. Understands laws and regulations governing military personnel.

9. Completes and issues citations to violators.

10. Understands law and regulations concerning apprehension, search and seizure, rules of evidence and use of deadly force.

* * * * * *

13. Collects, marks, and preserves evidence.

* * * * * *

15. Investigates minor offenses at level appropriate to grade.

16. Applies crime prevention techniques.

* * * * * *

18. Apprehends violators.

* * * * * *

35. Coordinates military police activities and functions with local civil law enforcement agencies.

The Manual demonstrates that unlike marine guards, military police are expressly authorized to investigate offenses, to issue citations, to apprehend violators, and to collect evidence. The military police, in...