Lippman v. City of Miami

• Decision Date: 24 July 2008
• Docket Number: Case No. 06-21124-CIV.
• Citation: 622 F.Supp.2d 1337
• Parties: David LIPPMAN, Plaintiff, v. The CITY OF MIAMI et al., Defendants.
• Court: U.S. District Court — Southern District of Florida

622 F.Supp.2d 1337

David LIPPMAN, Plaintiff, v. The CITY OF MIAMI et al., Defendants.

Case No. 06-21124-CIV.

United States District Court, S.D. Florida.

July 24, 2008.

COPYRIGHT MATERIAL OMITTED

Jeanne Baker, Coconut Grove, FL, Rosalind J. Matos, ACLU of Florida, Miami, FL, for Plaintiff.

Henry Joseph Hunnefeld, Miami City Attorney's Office, Miami, FL, Edward J. Martin, United States Department of Justice, Washington, DC, Marilynn Koonce Lindsey, United States Attorney's Office, Beverly A. Pohl, Robert N. Nicholson, Broad and Cassel, Fort Lauderdale, FL, for Defendants.

OPINION AND ORDER

KENNETH A. MARRA, District Judge.

This cause is before the Court upon the United States' Motion to Dismiss [DE 137] Count VI of the Second Amended Complaint. The Court has carefully considered the motion and is otherwise fully advised in the premises.

I. Background

According to the Second Amended Complaint ("SAC"), Plaintiff David Lippman ("Plaintiff" "Lippman") was working as a freelance reporter for Free Speech Radio News, when he traveled from North Carolina to Miami, Florida to cover the Free Trade Area of the Americas ("FTAA") summit meetings in November of 2003. (SAC ¶ ¶ 29-30.) Prior to the FTAA summit meetings, the City of Miami and the Miami Police Department ("MPD") planned for anticipated protests against the FTAA. (SAC ¶ 21.) The MPD assembled nearly 40 different law enforcement agencies from federal, state, county and municipal police departments to be part of the security force. (SAC ¶ 22.) The Federal Bureau of Investigation ("FBI") was one of the federal agencies that worked in conjunction with the City of Miami during the FTAA demonstrations. (SAC ¶ 28.)

While traveling from North Carolina to Miami, Lippman was "surveilled" by the FBI because he was "known protestor w/history." (SAC ¶ 30; City of Miami documents, Ex. B, attached to SAC.) On November 19, 2003, Lippman arrived in Miami and parked his 1991 Nissan pickup truck in a parking lot at Northeast 2^nd Street and Northeast 2^nd Avenue so he could approach the demonstrations on foot. (SAC ¶ 32.) Left in his car were Lippman's computer, some clothing and a guitar. (SAC ¶ 32.) Later that day, Lippman returned to the parking lot and saw his truck being towed away. (SAC ¶ 33.) An employee of the parking lot told Lippman that the MPD had reported that the FBI had instructed them to check Lippman's truck for a bomb. (SAC ¶ 34.) Officers from three agencies, the Broward County Sheriff's Office ("BSO"), the FBI and the MPD, performed a search and seizure of Lippman's truck. (SAC ¶ 35.)

After much difficulty, Lippman located his truck and recovered it from the MPD. (SAC ¶ 38.) Both passenger cab windows of the truck were broken out, and in the back of the truck, where the camper top closes, both padlocks were broken off. (SAC ¶ 38.) Inside the truck, all of Lippman's personal belongings were turned upside-down, opened and scattered. (SAC ¶ 38.) The computer left in Lippman's truck was outside of its case, files were dumped out in all directions, glass was all over the seats, a flashlight and plastic drawers were broken and the gas cap was missing. (SAC ¶ 38.) No bomb, contraband or any illegal substance was found in Lippman's truck nor were any criminal charges brought against Lippman. (SAC ¶ ¶ 40-41.) Lippman alleges the FBI agents knew or should have known that neither Lippman's truck nor its contents posed any threat to persons or property, thus their decision to damage the truck and its contents was unreasonable and in violation of the law. (SAC ¶ 43.)

With respect to the individual FBI agents, the SAC alleges a violation of the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346 (Count VI), and a Bivens claim (Count IX). The FTCA claim charges that the actions of the United States, through the action of the FBI agents, constituted negligence, invasion of privacy and trespass to chattels under Florida law. (SAC ¶ 98.) Lippman claims that the FBI agents owed a duty of reasonable care to him which was violated by the surveillance that culminated in a negligent or reckless search, seizure and damage to his truck and personal property inside the truck. (SAC ¶ 99.) Lippman additionally asserts these acts by the FBI agents intentionally invaded his privacy by intrusion into his solitude and seclusion, and intentionally took possession of Lippman's chattel, damaged it and deprived him of its use for a substantial period of time. (SAC ¶ ¶ 100-01.)

The United States moves to dismiss the FTCA claim for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure based on the applicability of several exceptions to the FTCA. In the alternative, the United States moves for dismissal of the invasion of privacy claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted.

II. Discussion

1. Subject Matter Jurisdiction

"Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit." FDIC v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994). The FTCA provides a congressional exception to the United States' sovereign immunity for tort claims, under which the government may "be sued by certain parties under certain circumstances for particular tortious acts committed by employees of the government." Turner ex rel. Turner v. United States, 514 F.3d 1194 (11th Cir.2008) quoting Suarez v. United States, 22 F.3d 1064, 1065 (11th Cir.1994) (per curiam). Specifically, liability exists for the United States for "injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office of employment. . . ." 28 U.S.C. § 1346(b). Where the FTCA applies, the United States may be liable for certain torts "in the same manner and to the same extent as a private individual under like circumstances. . . ." 28 U.S.C. § 2674. There are, however, several exceptions under the FTCA, which must be strictly construed in favor of the United States with all ambiguities resolved in favor of the Government. Patterson & Wilder Const. Co., Inc. v. United States, 226 F.3d 1269, 1279 (11th Cir.2000) citing United States v. Nordic Village, Inc., 503 U.S. 30, 33, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992). When the alleged conduct falls under one of the FTCA's statutory exceptions, the Court lacks subject matter jurisdiction. JBP Acquisitions, LP v. U.S. ex rel. F.D.I.C., 224 F.3d 1260, 1263 (11th Cir.2000) citing Dalehite v. United States, 346 U.S. 15, 31, 73 S.Ct. 956, 97 L.Ed. 1427 (1953) and Boda v. United States, 698 F.2d 1174, 1176 (11th Cir.1983).

According to the United States, the due care, discretionary function, and detention of property exceptions apply. (Mot. at 5-6.) In addition, the United States contends that the allegations relating to negligence fail under the requirements of 28 U.S.C. § 2674.

A. Application of 28 U.S.C. § 2674

In addressing the negligence allegations, the Court notes that, under 28 U.S.C. § 2674, the United States can only be liable in the same manner and to the same extent as a private individual under like circumstances. . . ." 28 U.S.C. § 2674. The substantive law which governs the lawsuit is "the law of the place where the act or omission occurred."¹ 28 U.S.C. § 1346(b)(1).

The Court begins its analysis by observing that with respect to the duties alleged to have been violated by the United States, Florida law does not impose an analogous duty of care on a private party under like circumstances. The alleged acts committed by the FBI agents cannot be equated to any duty of a private citizen under Florida law. See Ware v. United States, 838 F.Supp. 1561, 1563 (M.D.Fla. 1993) (FTCA claim not viable based on allegation that federal agent failed to disclose exculpatory evidence during criminal investigation); see also Caban v. United States, 728 F.2d 68 (2d Cir.1984) (INS agents immune from false imprisonment/FTCA suit arising out of a detention).

The Court rejects Lippman's invitation to find that Florida law does impose a duty that falls within the purview of the statute. (Resp. at 8.) In making that argument, Lippman cites to United States v. Olson, 546 U.S. 43, 126 S.Ct. 510, 163 L.Ed.2d 306 (2005). Olson analyzed the tort liability of the United States based on the alleged negligence of federal mine inspectors, and held that federal mine inspectors could be compared to private persons who conduct safety inspections. Olson, 546 U.S. at 47, 126 S.Ct. 510. Based on Olson, Lippman proposes that the Court analogize the behavior of the FBI agents to that of a private person "who spies upon another and then breaks into his vehicle." (Resp. at 9.) The Court rejects this argument because spying and breaking into a vehicle, if actionable, are intentional torts and not acts that give rise to a claim of negligence. Thus, given that there is no analogous liability on the part of a private individual in like circumstances, the Court must dismiss the portion of the FTCA claim relating to negligence. For the benefit of a full record, however, the Court will also discuss whether the negligence allegations state a claim under Florida law.

Florida law is clear that the negligent conduct of police investigations does not give rise to a cause of action for negligence under Florida law because the "duty to protect citizens and enforce the law is one owed generally to the public." Pritchett v. City of Homestead, 855 So.2d 1164, 1165 (Fla.Dist.Ct.App.2003); see Everton v. Willard, 468 So.2d 936, 938 (Fla.1985) ("[a] law enforcement officer's duty to protect the citizens is a general duty owed to the public as a whole"); State v. Kowalski, 617 So.2d 1099, 1100 (Fla.Dist.Ct.App. 1993) (no recognized legal duty of care arising out of duty to enforce the laws and protect the public safety). A duty may, however,...