Galicia v. United States

• Decision Date: 24 February 2015
• Docket Number: Civ. No. 13-0105 MCA/LAM
• Court: U.S. District Court — District of New Mexico
• Parties: JOQUIN CESAR GALICIA, Plaintiff, v. THE UNITED STATES OF AMERICA, Defendant.

JOQUIN CESAR GALICIA, Plaintiff, v. THE UNITED STATES OF AMERICA, Defendant.

Civ. No. 13-0105 MCA/LAM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

February 24, 2015

MEMORANDUM OPINION AND ORDER

This case is before the Court upon the United States' Motion for Summary Judgment [Doc. 63]. The Court has considered the motion, the parties' briefs, the record in this case and the applicable law, and is otherwise fully advised. For the reasons set forth below the Court grants the motion in part and denies the motion in part.

Plaintiff brings this action pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680. The instant motion addresses Plaintiff's claims for false arrest, false imprisonment, malicious prosecution/abuse of process, assault, and battery.¹ Plaintiff's claims arise out of his seizure by the United States Border Patrol and subsequent removal to Mexico, all of which occurred on the evening-morning of May 30-31, 2011.

Fed. R. Civ. P. 56(a) provides that " [a] party may move for summary judgment, identifying each claim or defense -- or the part of each claim or defense --on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." As our Court of Appeals has succinctly stated:

A fact is "material" if, under the governing law, it could have an effect on the outcome of the lawsuit. A dispute over a material fact is "genuine" if a rational jury could find in favor of the nonmoving party on the evidence presented.

Adamson v. Multi Community Diversified Serv., Inc., 514 F.3d 1136, 1145 (10th Cir. 2008). The factual record and reasonable inferences therefrom are viewed in the light most favorable to the party opposing summary judgment. Byers v. City of Albuquerque, 150 F.3d 1271, 1274 (10th Cir. 1998). It is not [the court's] province at the summary judgment stage to weigh the evidence or to make credibility determinations. Sanders v. Southwestern Bell Telephone, L.P., 544 F.3d 1101, 1105-06 (10th Cir. 2008).

28 U.S.C. § 1346(b)(1) confers jurisdiction over claims brought under the FTCA in the district courts, which are to apply "the law of the place where the act or omission occurred." The parties agree that New Mexico is the place where the acts or omission at issue occurred.

Under the FTCA, the United States is liable "in the same manner and to the same extent as a private individual under like circumstances." 28 U.S.C. § 2674. Thus, under the FTCA, the tort liability of a commissioned federal law enforcement officer somewhat anomalously implicates state tort-law standards applicable to private citizens. Seegenerally Stanton R. Gallegos, Note, Are Police People Too? An Examination of the Federal Tort Claims Act's "Private Person" Standard as It Applies to Federal Law Enforcement Activities, 76 Brook. L. Rev. (Winter, 2011). Due to a gap in Tenth Circuit authority, the Court has looked to precedent from other Circuits, and in particular, to cases decided by Second Circuit Court of Appeals in interpreting the "in the same manner and to the same extent as a private individual under like circumstances" language of the FTCA as applied to federal law enforcement officers. The Second Circuit Court of Appeals has reasoned that the question of whether there is a "private analogue" to the conduct engaged in by the federal defendant is determined by reference to state law. Liranzo v. United States, 690 F.3d 78, 91 (2d Cir. 2012). Thus, for example, the question of whether an unlawful detention is actionable under the FTCA is determined by reference to state law governing false imprisonment by private persons, which determines the elements that the FTCA plaintiff must establish in order to make a prima facie case and the general availability of defenses such as justification or privilege. Id. at 91. However, in determining whether the detention is justified or privileged, a court may look to federal law. Id. at 92. By way of example, consider a Border Patrol agent who stops a vehicle based upon a reasonable suspicion that it is carrying persons who are in the United States illegally. Private persons are not routinely authorized by state law to conduct investigative detentions. E.g., State v. Benefiel, 1997 WL 117784 **3-4 (Idaho Ct. App. 1997). Garner v. State, 779 S.W.2d 498, 501 (Tex. Ct. App. 1989); State v. Schuyler, 390 So.2d 458, 460 (Fla. Dist. Ct. App. 1980). If justification were measured solely by state law governing citizen's arrests, a Border Patrol agent who conducted a valid Terry-stopcould be held liable for false imprisonment, even though the stop was supported by reasonable suspicion and expressly authorized by federal law. The Second Circuit's reasoning both respects the language of the FTCA as interpreted by the Supreme Court and avoids the absurd result of finding the United States liable for a tort when the federal officer's conduct was authorized by federal law and was consistent with the requirements of the Constitution. In summary, the Court will look to New Mexico tort law to determine whether New Mexico law recognizes a private analogue. If a private analogue exists, New Mexico law will determine the elements that the plaintiff must prove and the affirmative defenses available to the defendant. To the extent that New Mexico law recognizes the defenses of justification or privilege, the Court may refer to federal law to give content to those defenses.

False Arrest/Imprisonment (Counts I and II)²

Viewing the record in the light most favorable to Plaintiff, as the nonmovant, the Court concludes that a reasonable jury could find as follows. During the evening of May 30, 2011, at approximately 8:30 p.m., U. S. Border Patrol Agent Timothy Sapieka announced over the radio that he had a "bailout" south of Arrey, New Mexico involving two suspects. [Doc. 63 at 3, ¶ 4; Doc. 80 at 5, ¶ 4] U.S. Border Patrol Agent Juan Serrano, who was patrolling New Mexico Highway 187 south of the Truth or Consequences Border Patrol station, responded to the radio call. [Doc. 80 at 5, ¶ 3] By the time Agent Serrano arrived at the scene, Agent Sapieka had one of the suspects in custody. [Doc. 80-3 at 2]The detainee admitted that he and the other suspect were illegally in the United States. Border Patrol Agents searched the surrounding area, but did not capture the second suspect. [Doc. 63-3 at 7] Agent Serrano resumed his patrol along New Mexico Highway 187.

Sometime before 10:00 p.m., as he approaches the intersection of Highway 187 and Calle Alto in Arrey, Agent Serrano notices a car legally parked off the highway beside a sign advertising a local business. [Doc. 63-3 at 10] This intersection is in the same general area where the suspect escaped earlier in the evening. Although Agent Serrano has no particular reason to think that the parked car is involved in a violation of the immigration laws [Doc. 80-3 at 5], he nevertheless decides to stop and question the occupants of the car. Because it is dark, he cannot immediately tell the race of the occupants. [Doc. 80-3 at 5] He turns around and pulls up behind the car, engaging his emergency lights. [Doc. 80-3 at 5-6] He approaches the car on foot, and identifies himself as a Border Patrol Agent. [Doc. 80-3 at 6] At this point Agent Serrano can tell that the occupants are a young woman and a young man (Plaintiff). Agent Serrano immediately inquires into the young man's citizenship. [Doc. 80-3 at 6] The young man begins to answer, but is cut off by Agent Serrano, who advises the young man that it is a crime to answer untruthfully. [Doc. 80-9 at 3] The young man admits that he is not a United States citizen. [Doc. 80-9 at 3] Agent Serrano takes the young man back to his patrol vehicle and has him sit in the backseat. [Doc. 80-9 at 3] Agent Serrano suspects that Plaintiff is the second suspect who escaped earlier that evening. [Doc. 80-3 at 11] He examines Plaintiff's shoes, apparently looking for signs that Plaintiff has been moving cross-country. [Doc. 80-9 at 3] Agent Serrano calls in on his radio, saying "I think we got the guy. We caught the guy that was running from us." [Doc. 80-9 at 3] Agent Serrano questions the young woman, who produces documentation showing that she is a lawful resident alien. [Doc. 80-3 at 9] Agent Serrano returns to his vehicle and runs a records check on the young woman. [Doc. 80-3 at 9] The records check confirms that the young woman is lawfully present in the United States. [Doc. 80-3 at 9] Based on the young man's admission that he is in the United States illegally, Agent Serrano takes him into custody and transports him to the Border Patrol station in Truth or Consequences. [Doc. 80-3 at 11] Plaintiff is detained at the Border Patrol station for several hours. In the early morning of May 31, 2011, he is transported to El Paso, Texas, where he is turned over to an official from the Mexican Consulate. [Doc. 80-9 at 11] Plaintiff is escorted over a bridge into Mexico. [Doc. 80-9 at 11]

Under New Mexico law, false imprisonment can be a crime, NMSA 1978, § 30-4-3, or a tort, Dickson v. City of Clovis, 148 N.M. 831, 837 (Ct. App. 2010) (observing that false imprisonment and false arrest are among the torts as to which immunity is waived by the New Mexico Tort Claims Act). It is important to distinguish the crime from the tort because the crime as defined by § 30-4-3 requires that the defendant have had knowledge of his lack of authority, whereas the tort merely requires that the defendant have lacked actual authority. See Fuerschbach v. Southwest Airlines Co., 439 F.3d 1197, 1208 n.9 (10th Cir. 2006). The Court is inclined to attribute the equating of the crime and the tortto occasional analytical laxity rather than to an intention to modify the established elements of the common-law tort.³

The Court concludes that there are genuine disputes of material fact as to whether Agent...