Guzman v. Ford

• Decision Date: 28 February 2001
• Docket Number: No. 00-1652,N-MIESES,ABREU-GUZM,00-1652
• Citation: 241 F.3d 69
• Parties: (1st Cir. 2001) GABRIEL EDUARDOaN; ROSA LEONOR GUZMPlaintiffs, Appellants, v. ALICIA FORD; DRUG ENFORCEMENT ADMINISTRATION; WILLIAM J.MITCHELL, JAY STOOTHOFF; STEVE RILEY; WALDO SANTIAGO; FRANCISCO J. ALVAREZ; REGINALD CHENEY; IVAN RIOS; RICHARD ESCALERA; ANA SUALNIER Defendants, Appellees
• Court: U.S. Court of Appeals — First Circuit

Page 69

241 F.3d 69 (1st Cir. 2001)

GABRIEL EDUARDO ABREU-GUZMaN; ROSA LEONOR GUZM N-MIESES Plaintiffs, Appellants, v. ALICIA FORD; DRUG ENFORCEMENT ADMINISTRATION; WILLIAM J.MITCHELL, JAY STOOTHOFF; STEVE RILEY; WALDO SANTIAGO; FRANCISCO J. ALVAREZ; REGINALD CHENEY; IVAN RIOS; RICHARD ESCALERA; ANA SUALNIER Defendants, Appellees.

No. 00-1652

United States Court of Appeals For the First Circuit

Submitted February 28, 2001

Decided February 28, 2001

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Daniel R. Dominguez, U.S. District Judge]

[Copyrighted Material Omitted] Bennie Frankie Cerezo, Rosanna T. Cerezo, and Benny Frankie Cerezo Law Offices on brief for appellants.

Guillermo Gil, United States Attorney, Miguel A. Fernandez, Assistant U.S. Attorney, and Isabel Munoz-Acosta, Assistant U.S. Attorney on brief for appellees.

Before Boudin, Stahl and Lynch, Circuit Judges

LYNCH, Circuit Judge.

Gabriel Eduardo Abreu-Guzman and his mother, Rosa Leonor Guzman-Mieses, appeal from the entry of summary judgment on their claims against several federal law enforcement agents who arrested Abreu. Abreu was detained pre-trial for several months. The arrest was largely based on information from an informant, who had identified Abreu as "Junior," a participant in a drug conspiracy. The government later dropped all charges against Abreu.

In this civil rights action, plaintiffs say Abreu's arrest violated his Fourth Amendment rights and his subsequent detention was unlawful. They brought claims under Bivens v. Six Unknown Names of Federal Bureau of Narcotics, 403 U.S. 388 (1971), for alleged constitutional violations, and under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680, for false arrest, false imprisonment, and malicious prosecution. We affirm judgment in favor of all defendants.

I.

In January 1993, DEA agents Steve Riley, Jay Stoothoff, and others began investigating a suspected conspiracy to transport large amounts of cocaine from Puerto Rico to New York. One of those arrested decided to cooperate. He provided information to the agents about a co-conspirator known as "Junior." The informant gave agents a physical description of "Junior" and provided a cellular telephone number belonging to "Junior." Agent Riley obtained information from the phone company identifying Gabriel Abreu-Guzman as the number's subscriber. Agents Riley and Stoothoff then obtained an old driver's license photograph of Abreu. The informant selected that photo out of a photo lineup, saying it was the man he knew as "Junior," but at a much younger age. Hotel records also showed that an alleged co-conspirator, Daniel Nunez, at the time of the criminal activity, had placed two calls from his hotel room to Abreu's cell phone number. Phone company records of Abreu's account confirmed that there was no evidence of fraudulent claims or cloning of Abreu's cellular phone number.

On the basis of this information, on April 28, 1993, a federal grand jury returned indictments on drug conspiracy charges against two named defendants and a John Doe 2, also known as "Junior." On May 6, a warrant for Abreu's arrest issued, on the basis he was the "Junior" in the indictment. Agent Alicia Ford and Special Agent Ana Saulnier set out to arrest Abreu on May 6, 1993. Agent Ford was provided with the informant's physical description of "Junior": a black, light-skinned Hispanic male, approximately six feet to six feet two inches tall, weighing approximately 175 to 180 pounds, black hair, clean shaven, 33 to 35 years old, driving a gray 280-Z Nissan. Also, Agent Ford was given the two addresses where "Junior" might be found. No one was home at either address, so agents showed Abreu's picture to neighbors and advised them that the agents were looking for him.

That afternoon, the agents were notified that Abreu was waiting for them at DEA Headquarters. Agent Ford and Special Agents Saulnier, Izquierdo, and Reginald Cheney found Abreu and two women waiting for them in the reception area. Ford placed Abreu into custody and explained the nature of the charges against him. Abreu and one of his companions insisted that the agents were arresting the wrong person.¹

Abreu was shown a photocopy of the license photograph used to identify him with the informant. He acknowledged the photo was him and stated that it was an old photo. He was photographed and his description noted him as being Puerto Rican, black, seventy inches tall, weighing 202 pounds, and 25 years old. Thus, he was shorter, heavier, and younger than the description of "Junior." At Abreu's detention hearing on the same day as his arrest, a magistrate judge ordered Abreu committed to the Puerto Rico State Penitentiary. Abreu was released on September 2, 1993, pursuant to several conditions, including that he wear an electronic monitoring device. On February 16, 1994, the United States moved for voluntary dismissal of all charges against Abreu. The motion said only that "Further investigation produced information which compels the United States to promptly seek the dismissal of the indictment as to defendant Gabriel Abreu-Guzman only."

On February 28, 1995, plaintiffs filed a complaint under Bivens and the Federal Tort Claims Act against federal law enforcement agents Alicia Ford, John Doe, and Jane Doe, alleging violations of Abreu's Fourth Amendment rights. Abreu sought $10,000,000 in damages, and his mother, Guzman-Mieses, sought $5,000,000. Plaintiffs filed an amended complaint to add federal tort claims against the government for false arrest, false imprisonment, and malicious prosecution by federal agents acting within the scope of their employment. They also sued the agents individually for alleged violations of Abreu's Fifth and Sixth Amendment rights. In 1998, plaintiffs again amended their complaint, adding as parties agents William J. Mitchell, Jay Soothoff, Steve Wiley, Waldo Santiago, Francisco J. Alvarez, Reginald Cheney, Ivan Rios, Richard Escalara, and Ana Saulnier.

The district court granted defendants' motion for summary judgment on plaintiffs' Bivens claims on qualified immunity grounds, and also granted summary judgment to defendants on plaintiffs' claims under the FTCA. Plaintiffs appeal.

II.

A. The Bivens Claim and Qualified Immunity

We review de novo the district court's grant of summary judgment, and affirm if the evidence, viewed in the light most favorable to plaintiffs, shows that there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law. Hegarty v. Somerset Cty., 53 F.3d 1367, 1372 (1st Cir. 1995). The analysis of a qualified immunity defense is identical for actions brought under § 1983 and Bivens. Graham v. Connor, 490 U.S. 386, 394 n.9 (1989). The Supreme Court has set forth a preferred method of analysis, most recently reinforced in Wilson v. Layne, 526 U.S. 603 (1999). First, the court must "determine whether the plaintiff has alleged the deprivation of an actual constitutional right." Id. at 609, quoting Conn v. Gabbert, 526 U.S. 286, 290 (1999). Second, the court must "proceed to determine whether that right was clearly established at the time of the alleged violation." Id. Only if these two questions are answered in the affirmative does the court address the particular conduct in question. The question there is whether an objectively reasonable officer, performing discretionary functions, would have understood his or her conduct violated that clearly established constitutional right. Harlow v. Fitzgerald, 457 U.S. 800, 818-19 (1982); seealso Crawford-El v. Britton, 523 U.S. 574, 591 (1998).

Here, the first two questions are easily answered in the affirmative. It has been clearly established for a very long time that the Fourth Amendment requires that arrests be based on probable cause. See, e.g., Beck v. Ohio, 379 U.S. 89, 91 (1964).

This case turns on the third question: whether an objectively reasonable officer would have understood that the arrest of the plaintiff violated these clearly established constitutional rights. Harlow, 457 U.S. at 818. This question itself is subject to certain ground rules. Evidence concerning the officer's "subjective intent is simply irrelevant" to a qualified immunity defense. Crawford-El, 523 U.S. at 588. It is objectively reasonable for officers to seek an arrest warrant "so long as the presence of probable cause is at least arguable." Prokey v. Watkins, 942 F.2d 67, 72 (1st Cir. 1991). When officers make an arrest subject to a warrant,² then, even if probable cause is lacking, officers are entitled to qualified immunity "'unless the warrant application is so lacking in indicia of probable cause as to render official belief in its existence unreasonable.'" St. Hilaire v. Laconia, 71 F.3d 20, 28 (1st Cir. 1995), quoting Malley v. Briggs, 475 U.S. 335, 344-45 (1986). Similarly, an officer who conducts an arrest pursuant to a warrant is liable only "where the officer should have known that the facts recited in the affidavit did not constitute probable cause." Rodriques v. Furtado, 950 F.2d 805, 812 (1st Cir. 1991).

Abreu argues that the officers should have known that there was no probable cause because the photographic identification by the informant of "Junior" from Abreu's old license picture was tainted. Plaintiffs claim that agents "altered considerably" Abreu's learner's permit photograph, adding a moustache and an afro hairdo, before presenting it to the informant, and they altered it in order to make it conform to the informant's description of "Junior." As the district court observed, there is no evidence to support Abreu's allegation other than Abreu's 1999 affidavit. That affidavit is inconsistent with Abreu's earlier sworn statement that Agent Ford showed him "a photocopy of a photo and asked me if I was the person, I replied that it was me and inquired where they had obtained that photo, since...