Rivera v. U.S.
| Decision Date | 21 March 1991 |
| Docket Number | D,No. 714,714 |
| Citation | 928 F.2d 592 |
| Parties | Maria RIVERA, Angel Santana, Diana Penaloza Arce, Enrique Arce, Santiago Mendez and Carmen Mendez, Plaintiffs-Appellants, v. UNITED STATES of America; United States Department of Justice Drug Enforcement Administration; various named officers, including Special Agents Colon, Rivera, Timothy Sullivan, Wnukowski and Gabriella Zacco, Detectives Beck, Becheck, Casuso, Cebarello, Jones, Larkin and Velez, Investigators James J. Boylan, Robinson, Robert Robles, Rohman and Welch, Sergeants Cook and Murray, and John Doe and Jane Doe, et al., unknown officers and agents, Defendants-Appellees. ocket 90-6171. |
| Court | U.S. Court of Appeals — Second Circuit |
John D.B. Lewis, New York City for plaintiffs-appellants.
Edward T. Ferguson, III, Asst. U.S. Atty., New York City (Otto G. Obermaier, U.S. Atty., S.D.N.Y., Marla Alhadeff, Asst. U.S. Atty., New York City, on the brief), for defendants-appellees.
Leon Friedman, Lewis M. Steel, New York City (Steel & Bellman, Arthur N. Eisenberg, New York Civil Liberties Union, Kenneth Kimerling, Puerto Rican Legal Defense and Educ. Fund, Inc., New York City, of counsel), filed a brief for amici curiae New York Civil Liberties Union and Puerto Rican Legal Defense and Educ. Fund, Inc.
Before TIMBERS, KEARSE and MINER, Circuit Judges.
Plaintiffs Maria Rivera et al. appeal from a final judgment of the United States District Court for the Southern District of New York, Michael B. Mukasey, Judge, dismissing their complaint which sought damages from the United States, certain of its law enforcement agents, and the United States Drug Enforcement Administration ("DEA"), principally for violation of plaintiffs' rights to be free from unreasonable searches and seizures in violation of the Fourth Amendment to the Constitution, for ethnic discrimination in violation of the equal protection component of the Due Process Clause of the Fifth Amendment to the Constitution and 42 U.S.C. Secs. 1981 and 1982 (1988), and for various common-law torts, resulting from defendants' execution of search warrants for plaintiffs' apartments. With respect to the Fourth Amendment claims, the complaint alleged principally (1) that the warrants were invalid because (a) they were issued upon a facially insufficient affidavit, or (b) the affidavit upon which they were issued contained deliberate or reckless falsehoods, and (2) that the warrants were executed with excessive force and intrusiveness. The district court summarily dismissed virtually all of plaintiffs' claims pursuant to Fed.R.Civ.P. 12(b)(6) and 56. On appeal, plaintiffs contend that the record revealed genuine issues of fact that should have precluded the entry of summary judgment and that the district court improperly denied them discovery. For the reasons below, we affirm so much of the judgment as (a) dismissed the statutory and constitutional equal protection claims, (b) dismissed the common-law tort claims against the individual defendants, and (c) dismissed all claims against the DEA and defendant Velez. We vacate so much of the judgment as (a) dismissed the Fourth Amendment claims against the individual defendants other than Velez, and (b) dismissed the common-law tort claims against the United States, and we remand for further proceedings.
The present litigation has its origins in the predawn execution of search warrants Viewed in the light most favorable to plaintiffs, the record reveals the following.
in an apartment building at 143 Bruce Avenue in Yonkers, New York ("143 Bruce" or the "building"), on January 8, 1987. The 50-apartment racially integrated building, which had become a cooperative in 1986, was occupied by both renters and owners. Plaintiff Maria Rivera owned and resided in apartment 3D; at the time of the raid, plaintiff Angel Santana was visiting her. Plaintiffs Santiago and Carmen Mendez rented and resided in apartment 2F. Plaintiffs Enrique and Diana Penaloza Arce owned and resided in apartment 2J with their then 5-month old son; they also owned the adjacent apartment, 2A, which they rented to others.
On January 7, 1987, defendant James J. Boylan, a New York State Police Investigator assigned to the New York Drug Enforcement Task Force ("NYDETF"), applied to a United States magistrate for a warrant to search certain apartments, including seven at 143 Bruce. Boylan submitted an affidavit dated January 7 ("Boylan affidavit"), detailing the basis for the application and stating, in pertinent part, as follows.
Boylan had been working for several months on an ongoing investigation of what he believed to be a major cocaine and "crack" distribution organization in the Bronx, New York, supervised by citizens of the Dominican Republic ("Dominican organization"). He had received information from several confidential sources, one of whom (the "informant") had previously supplied him with information related to this and other investigations. The informant's information in other matters had led to raids in the Bronx in October 1986, resulting in the seizure of weapons and large quantities of narcotics, and the arrest and prosecution of drug suspects.
Subsequent to those October raids, the informant had learned from Carlos Molina, one of the leaders of the Dominican organization, that the organization was moving its headquarters from the Bronx to 143 Bruce. Boylan knew that that building had a history of narcotics activity, although as far as he knew, none of that activity had been connected to the Dominican organization.
The Boylan affidavit stated that in "the past week" the informant had reported to Boylan that one of the members of the Dominican organization had said the group was expecting a shipment of cocaine to arrive at 143 Bruce on January 7. The informant provided information with respect to seven apartments in the building. Apartment 4F was Molina's residence; the informant had been in 4F several times within the past several weeks, had seen 1/8 kilogram of cocaine there, and had observed sales of cocaine totaling several kilos; in addition, he had observed cocaine and another member of the Dominican organization in apartment 3B; had observed Molina in apartments 3B and 2A; and had observed another Hispanic male carry cocaine from apartment 2H to apartment 2A. Subsequent to these observations, Molina had told the informant "in substance" that apartments 2A, 2F, 2H, 2J, and 3D were used in the drug operation. The informant also observed Molina use keys to open the doors to three of those apartments, including 2F and 2J.
The application sought search warrants for, inter alia, the seven apartments at 143 Bruce as to which the informant had provided information. The affidavit stated that Boylan had checked the Con Edison records for each of these apartments but that, except for apartment 4F, none of the names in those records was familiar to him. In Boylan's experience, however, the unfamiliarity of the names was not unusual since "sophisticated drug traffickers frequently use other people, real or fictitious, as subscribers, registrants, and/or agents, in order to conceal their own identities."
The requested search warrants were issued by the magistrate. In addition to authorizing the seizure of narcotics and narcotics paraphernalia, they authorized the seizure of documents and other evidence of violations of the federal narcotics laws or the fruits of such offenses. The The searches of the seven targeted apartments at 143 Bruce took place virtually simultaneously, shortly before 6 a.m. on January 8. With respect to plaintiffs' apartments, 2F, 2J, and 3D, teams of officers entered forcibly and restrained plaintiffs for as much as two hours while they searched the apartments thoroughly. The degree of force used to enter, restrain, and search is in dispute. It is undisputed, however, that though the searches turned up small amounts of marijuana in apartments 2A and 2F, and about 102 grams of cocaine in apartment 2H, the officers found no semblance of the anticipated shipment of cocaine in any apartments at 143 Bruce.
warrants allowed the searches to take place at any hour of the day or night.
After unsuccessfully filing administrative claims under the Federal Tort Claims Act, 28 U.S.C. Sec. 2671 et seq. (1988) ("FTCA"), plaintiffs commenced the present action in the spring of 1988 against the United States, the DEA, Boylan, and other law enforcement officers allegedly involved in the searches. The complaint alleged principally that the procurement and execution of the warrants with respect to plaintiffs' apartments violated their rights under the Fourth Amendment; that the selection of their apartments for search was the product of ethnic discrimination, in violation of their equal protection rights under the Fifth Amendment and 42 U.S.C. Secs. 1981 and 1982; and that defendants were liable for various common-law torts, including trespass, assault, battery, and intentional infliction of emotional distress.
Plaintiffs promptly sought discovery of the government, including depositions of Boylan and his informant. The government opposed, stating that it intended to file motions to dismiss. The court stayed discovery of the government pending those motions.
In October 1988, the individual defendants moved to dismiss pursuant to Rule 12(b)(6) for failure to state a claim or, alternatively, under Rule 56 for summary judgment. In support of the motion for summary judgment, Boylan submitted two sworn declarations dated October 6, 1988, and August 15, 1989, respectively, supplementing certain of the statements made in the Boylan affidavit submitted in support of the application for the search warrants. Thus, he stated that Molina had been the source of all of the informant's information; that the information as to the expected...
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