Villafranca v. U.S.

• Decision Date: 28 October 2009
• Docket Number: No. 08-10920.,08-10920.
• Parties: Enrique VILLAFRANCA, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

587 F.3d 257

Enrique VILLAFRANCA, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 08-10920.

United States Court of Appeals, Fifth Circuit.

October 28, 2009.

William A. Brewer, III, Charles Dunham Biles (argued), Michael Joseph Collins, Bickel & Brewer, Dallas, TX, for Plaintiff-Appellant.

Daniel Shane Read (argued), Dallas TX, for U.S.

Appeal from the United States District Court for the Northern District of Texas.

Before KING, HIGGINBOTHAM and CLEMENT, Circuit Judges.

KING, Circuit Judge:

Plaintiff-appellant Enrique Villafranca appeals the district court's judgment, following a bench trial, that he take nothing on his assault and negligence claims against the United States under the Federal Tort Claims Act. The district court determined that the federal agents did not commit an assault against Villafranca because they used reasonable force to effect a lawful arrest. The district court also found that the agents' alleged negligence was not the proximate cause of Villafranca's injuries, and thus he did not have a viable claim for negligence. Because we hold that the agents' actions were privileged under Texas law, those actions did not constitute an assault for which the United States would be liable under the Federal Tort Claims Act. Further, the district court's finding that the agents' alleged negligence was not the proximate cause of Villafranca's injuries is not clearly erroneous. We therefore AFFIRM.

I. FACTUAL AND PROCEDURAL BACKGROUND

On May 21, 2003, Villafranca was talking on his cell phone while waiting to see his regular barber for a haircut in the lobby of Melissa's Salon in Dallas, Texas (the "Salon"). Shortly thereafter, United States Drug Enforcement Administration ("DEA") agents entered the Salon to execute a search warrant of the premises. The search of the Salon was one of four simultaneous searches being conducted that day as part of a drug investigation. The DEA agents, upon entering the Salon, identified themselves as police officers and secured the premises by, among other things, asking all patrons to remain seated. The agents did not have a plan for releasing the patrons after securing the premises.

The agents also ordered Villafranca to end his cell phone conversation and remain seated, but Villafranca did not comply with these orders. An agent then ordered Villafranca to place his hands behind his back with the intent to search him. Villafranca initially complied, but as the DEA agent grabbed his hands, Villafranca jerked his arm and quickly moved away. Upon witnessing this resistance, two other agents grabbed Villafranca and forced him to the ground. On the ground, Villafranca continued to resist by curling up in the fetal position and clenching his fists to his chest. The agents then forcibly handcuffed Villafranca's hands behind his back and sat him in a chair. Everyone in the Salon, including Villafranca, was permitted to leave thirty minutes to an hour later when the search concluded.

On May 1, 2006, Villafranca filed suit against the United States under the Federal Tort Claims Act ("FTCA") alleging that the DEA agents committed the torts of assault and negligence under Texas law. Villafranca claimed that he suffered severe shoulder injuries as a result of the agents' actions. The Government filed an answer denying Villafranca's claims for assault and negligence while asserting, inter alia, the affirmative defenses that (1) its agents' conduct was privileged under Texas law, and (2) Villafranca's own conduct was the proximate cause of his injuries.

On April 1, 2008, the district court held a one day bench trial, following which it entered findings of fact and conclusions of law. Villafranca v. United States, No. 3:06-CV-0806, slip op. at 1 (N.D.Tex. Aug. 19, 2008). On Villafranca's assault claim, the district court held that, because the agents used reasonable force to effect a lawful arrest, they did not commit an assault. The district court also found that the Government's search plan was negligent because DEA agents of ordinary prudence would have included a plan for releasing the patrons after securing the premises. However, the district court went on to find that the agents' negligence was not the proximate cause of Villafranca's injuries. Because proximate cause was lacking, the district court held that Villafranca's negligence claim failed.

II. DISCUSSION

In reviewing a bench trial, we review findings of fact for clear error and conclusions of law de novo. Water Craft Mgmt. LLC v. Mercury Marine, 457 F.3d 484, 488 (5th Cir.2006). The district court's proximate cause and negligence findings are findings of fact that we review for clear error. Gutierrez v. Excel Corp., 106 F.3d 683, 687 (5th Cir.1997) ("Causation is a question of fact [in Texas.]"); see also Lakomy v. United States, 70 Fed. Appx. 199, 204 (5th Cir.2003); Theriot v. United States, 245 F.3d 388, 394 (5th Cir. 1998). "A factual finding is not clearly erroneous as long as it is plausible in the light of the record read as a whole." United States v. Cluck, 143 F.3d 174, 180 (5th Cir.1998) (citing United States v. Krenning, 93 F.3d 1257, 1269 (5th Cir. 1996)).

The FTCA is a waiver of sovereign immunity that allows a plaintiff to bring a civil action for damages against the Government. 28 U.S.C. §§ 1346(b)(1), 2674; see also Truman v. United States, 26 F.3d 592, 594 (5th Cir.1994). The FTCA states that "[t]he United States shall be liable ... in the same manner and to the same extent as a private individual under like circumstances ...." 28 U.S.C. § 2674. The FTCA also permits claims based on intentional torts when they are committed by law enforcement officers. 28 U.S.C. § 2680(h); see also Bodin v. Vagshenian, 462 F.3d 481, 484 (5th Cir.2006). Liability under the FTCA is determined "in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b); see also Solis v. United States, 275 Fed.Appx. 322, 323 (5th Cir.2008) (citing Hatahley v. United States, 351 U.S. 173, 180, 76 S.Ct. 745, 100 L.Ed. 1065 (1956)). Therefore, Texas law governs the United States's liability here.

A. Did the Federal Agents Assault Villafranca?

1. The Texas Assault Tort and Statutory Privilege

In Texas, the intentional tort of assault is identical to criminal assault. See Hall v. Sonic Drive-In of Angleton, Inc., 177 S.W.3d 636, 649 (Tex.App.—Houston [1st Dist.] 2005, pet. denied) ("The elements of assault are the same in both the criminal and civil context[s]."). Texas Penal Code § 22.01(a) provides, in relevant part, that a person commits criminal assault if he:

(1) intentionally, knowingly, or recklessly causes bodily injury to another ...;

(2) intentionally or knowingly threatens another with imminent bodily injury ...; or

(3) intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.

TEX. PENAL CODE ANN. § 22.01(a) (Vernon 2005).

The Texas Penal Code also provides a "civil privilege defense" to an assault claim. Specifically, § 9.51(a) provides:

(a) A peace officer ... is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to make or assist in making an arrest or search ... if:

(1) the actor reasonably believes the arrest or search is lawful or, if the arrest or search is made under a warrant, he reasonably believes the warrant is valid; and

(2) before using force, the actor manifests his purpose to arrest or search and identifies himself as a peace officer ..., unless he reasonably believes his purpose and identity are already known by or cannot reasonably be made known to the person to be arrested.

Id. § 9.51(a); see also Tex. Dep't of Pub. Safety v. Petta, 44 S.W.3d 575, 579-80 (Tex.2001) (holding that the elements of a criminal necessity defense under § 9.51 are the same as the "civil privilege defense").¹

2. Was the DEA Agents' Conduct Privileged?

The issue then is whether the Government agents' conduct is privileged under § 9.51.² Villafranca claims that the United States should be treated as a "private person" for purposes of the FTCA analysis. See 28 U.S.C. § 2674. Villafranca then argues that because the DEA agents' conduct would constitute an assault under Texas law for which a private person would incur liability, the Government is liable for assault here.³ As support for this argument, Villafranca points to United States v. Olson, 546 U.S. 43, 126 S.Ct. 510, 163 L.Ed.2d 306 (2005).⁴

In Olson, the Supreme Court held that state-defined immunity (or waiver of immunity) cannot be applied to determine whether the Government has waived immunity for a particular FTCA claim. 546 U.S. at 45-46, 126 S.Ct. 510. Instead, the Supreme Court held that even where a plaintiff brings a claim based on performance of a unique government function, the lower courts must look to "like circumstances" for analogies of when private citizens would be liable in order to determine the Government's liability. Id. at 46-47, 126 S.Ct. 510. Specifically, the Court reversed the judgment of the Court of Appeals for the Ninth Circuit on the ground that it was inappropriate to make the United States liable for the negligent mine inspections solely because state law would make a state or municipal entity liable for similar negligence. Instead, the Court held that the lower courts should look to similar private person analogies rather than exact state or municipal entity analogies to determine the Government's liability. Id. at 47, 126 S.Ct. 510.

The district court below acknowledged Villafranca's "private person" argument but did not expressly resolve the issue of whether the Government was to be treated as a private person for purposes of § 9.51. Instead, the district court found that "the Government is not liable for assault where, as here, its law enforcement agents cause...