Ricca v. United States
Decision Date | 29 April 1980 |
Docket Number | No. 75 C 314.,75 C 314. |
Citation | 488 F. Supp. 1317 |
Parties | Carmine P. RICCA and Christine M. Ricca, Plaintiffs, v. UNITED STATES of America, Federal Drug Enforcement Administration, Carlo Boccia, Andrew Andalaro, Thomas O'Brien, Louis Dell'Ermo and James Bradley, Defendants. |
Court | U.S. District Court — Eastern District of New York |
Lipsig, Sullivan, Mollen & Liapakis, New York City, by Jay W. Dankner, Bennett J. Wasserman, New York City, for plaintiffs.
Edward R. Korman, U. S. Atty., Eastern District of New York, Brooklyn, N. Y., by Abraham Y. Skoff, Asst. U. S. Atty., Brooklyn, N. Y., for defendants United States of America and Federal Drug Enforcement Administration.
Schulte & McGoldrick, New York City, by John S. Martin, Lisa Kolb Liebert, New York City, for defendants Boccia and Bradley.
John J. Degnan, Atty. Gen., State of New Jersey, Trenton, N. J., by ALfred Abbotts, Deputy Atty. Gen., Trenton, N. J., for defendants Andalaro and O'Brien.
Salvatore Perillo, Corp. Counsel, City of Newark, Newark, N. J., by John C. Pidgeon, Asst. Corp. Counsel, Newark, N. J., for defendant Dell'Ermo.
This action for damages against the United States and its agents arises out of an incident that occurred on February 28, 1974, when federal agents and State police members of a Federal Narcotics Task Force stopped Carmine Ricca in his automobile on a public street in Kearny, New Jersey. Plaintiffs allege that for some time prior to stopping him, the defendants had maintained surveillance on Ricca and had followed him in the mistaken belief he was a known fugitive, one John Tully. Plaintiffs claim that, after Ricca's car was stopped, defendants surrounded the car and ordered him out of it. Finally, it is contended that the defendants failed to identify themselves as law enforcement officers and that one or more of the defendants, after pointing firearms at Ricca, shot him.
Initially, the federal defendants, jointly represented by the United States Attorney moved to dismiss the complaint pursuant to Rules 12 and 56, F.R.Civ.P., on a variety of grounds. As to the claims against the United States (or "government") and the Drug Enforcement Administration ("DEA"), the government claimed the complaint was entirely deficient and thus should be dismissed outright. As to the individual DEA agents, James Bradley and Carlo Boccia ("federal agents"), the government contended dismissal was appropriate as to each cause of action except the sixth cause which alleges what has come to be known as a "Bivens" action for violation of Fourth Amendment rights. See Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). With respect to that cause of action, the government recognized that the agents must rely at trial on the "good faith" immunity defense set out in Bivens v. Six Unknown Named Agents, 456 F.2d 1339 (2d Cir. 1972).
The government's theory of the case, of course, had the effect of casting the individual federal defendants into potential liability while absolving the United States of any responsibility for their actions. Finding themselves in an antagonistic position vis-a-vis the United States, the federal defendants have obtained separate representation and oppose that portion of the United States' motion seeking dismissal of plaintiffs' second cause of action which claims negligence. Because of facts peculiar to this case, resolution of the government's motion for summary judgment on the second cause of action is critical and thus we turn to it at the outset.
Although the section was amended on March 16, 1974, it provided a waiver of immunity only for claims "arising, on or after that date . . . out of assault, battery, false imprisonment, false arrest . . ." allegedly committed by law enforcement officers of the United States. Thus, the government contends, the amendment to the Tort Claims Act does not apply to actions such as this arising out of incidents that occurred prior to the amendment. See Gaudet v. United States, 517 F.2d 1034 (5th Cir. 1975); Pennington v. United States, 406 F.Supp. 850 (E.D.N.Y. 1976); Dupree v. Village of Hempstead, 401 F.Supp. 1398 (E.D.N.Y.1975). The success of the United States' motion manifestly depends on the validity of its argument that on the facts and law plaintiffs' claim of negligence is but artful pleading designed to circumvent the Act's bar to suits such as this. After careful review of the extensive material disclosed by discovery in this case and consideration of applicable law, the court concludes for the following reasons that summary judgment dismissing the second cause of action is inappropriate at this time and the government's motion must be denied.
Lambertson v. United States, 528 F.2d 441, 443 (2d Cir. 1976). See Blitz v. Boog, 328 F.2d 596, 599 (2d Cir.), cert. denied, 379 U.S. 855, 85 S.Ct. 106, 13 L.Ed.2d 58 (1964). Accordingly, we have scrutinized the record and accept for purposes of this motion what the United States urges as "plaintiffs description" of the action, viz.:
Wasserman Aff., ¶ 2.
Or, as put by defendants Bradley and Boccia:
Memorandum of defendants Bradley and Boccia in Opposition to the Government's Motion to Dismiss Claims as against the United States ("Bradley/Boccia Memorandum"), p. 3.
As described by defendants O'Brien and Andalaro:
In a tape-recorded statement given to Detective John Mooney of the Kearny Police Department, plaintiff Ricca described the circumstances surrounding the shooting in part as follows:
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