Washington v. Drug Enforcement Admin., 98-2733

• Decision Date: 08 March 1999
• Docket Number: No. 98-2733,98-2733
• Citation: 183 F.3d 868
• Parties: (8th Cir. 1999) CLARENCE WASHINGTON; FLORA JEAN WASHINGTON, APPELLANTS, v. DRUG ENFORCEMENT ADMINISTRATION, APPELLEE. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 868

183 F.3d 868 (8th Cir. 1999)

CLARENCE WASHINGTON; FLORA JEAN WASHINGTON, APPELLANTS, v. DRUG ENFORCEMENT ADMINISTRATION, APPELLEE.

No. 98-2733

U.S. Court of Appeals, Eighth Circuit

Submitted: March 8, 1999

July 26, 1999

Rehearing and Suggestion for Rehearing En Banc Denied Oct. 8, 1999.

Appeal from the United States District Court for the Eastern District of Missouri. [Copyrighted Material Omitted] Michael P. Bastian, St. Louis, Missouri, argued, for Appellants.

Nicholas P. Llewellyn, Assistant U.S. Attorney, St. Louis, Missouri, argued, for Appellee.

Before McMILLIAN and Morris Sheppard Arnold, Circuit Judges, and Sachs,¹ District Judge.

McMILLIAN, Circuit Judge.

Clarence Washington and Flora Jean Washington (hereinafter "the Washingtons") appeal from a final order entered in the United States District Court² for the Eastern District of Missouri granting judgment in favor of the Drug Enforcement Administration (DEA) (hereinafter "the United States"). Their suit, under the Federal Tort Claims Act (FTCA), asserted that DEA agents obtained and executed a search warrant for their house in an unreasonable and reckless manner in violation of the Fourth, Fifth, and Fourteenth Amendments of the U.S. Constitution and in violation of Missouri's assault and battery and abuse of process laws. Following a bench trial, the district court held that the United States cannot be found liable for constitutional torts under the FTCA and that the agents' conduct did not constitute assault and battery or abuse of process under Missouri law. See Washington v. DEA, No. 4: 92-CV-2285 (E. D. Mo. May 19, 1998) (Washington) (Memorandum). For reversal, the Washingtons argue that the district court erred in finding that (1) the FTCA does not include constitutional violations; (2) the government agents did not commit assault and battery under Missouri law; and (3) the government agents did not commit the tort of abuse of process under Missouri law. For the reasons discussed below, we affirm the judgment of the district court.

Jurisdiction

Jurisdiction was proper in the district court based upon 28 U.S.C. § 1346 and 28 U.S.C. § 2671 et seq. Jurisdiction in this court is proper based upon 28 U.S.C. § 1291. The notice of appeal was timely filed pursuant to Fed R. App. P. 4(a).

Background

The parties basically agree on the underlying facts and the following statement of facts is taken in large part from the district court memorandum. The Washingtons are husband and wife and at the time of the incident were 72 and 60 years old, respectively. Neither has a criminal record or has ever been the subject of a criminal investigation. They own a single-family house at 5920 McArthur in the City of St. Louis and have been the sole occupants since 1968. The Washingtons possess the only keys to the residence. The houses on McArthur are "remarkably similar in outward appearance," that is, single-family, one-story bungalows constructed of red brick, with aluminum awnings and metal security doors. Washington, slip op. at 3.

In January 1991, Donald Mendrala had been a DEA special agent for more than three and a half years. In 1987 Agent Mendrala became involved in an investigation of a national organization, known as the Moorish Science Temple of America (MSTA), that was suspected of drug trafficking, murder, and other related crimes. The St. Louis chapter, led by Jerry Lee Lewis-Bey, was located at 754 West Florissant. On November 22, 1990, DEA agents arrested Gary Caldwell, a convicted felon and MSTA member, for unlawful possession of a machine gun.³ In exchange for Caldwell's assistance in investigating the MSTA, the government agreed not to prosecute him for any crimes he may have committed while affiliated with the organization.

Caldwell told investigators that he had distributed narcotics for Jerry Lee Lewis-Bey and that on November 4, 1990, he and other MSTA members weighed two kilograms of cocaine at 5920 McArthur. According to Caldwell, the scale used to weigh the cocaine was still at the house. The government subjected Caldwell to a polygraph test several times and had him point out the house to investigators.⁴ Agent Mendrala did not, however, independently corroborate the information with respect to 5920 McArthur or attempt to determine the identity of the occupants.

Agent Mendrala prepared a master affidavit for fifteen search warrants for various suspected MSTA locations in St. Louis City and County, including the Washingtons' residence at 5920 McArthur. The only information the DEA had concerning that particular address came directly from Caldwell. The magistrate Judge⁵ issued the search warrants for narcotics; narcotics paraphernalia; firearms; documents and records relating to travel, concealment of money, and occupancy or residency of the premises searched; money; photographs; pagers; and other items described on the list appended to the application and affidavit. The search warrant for 5920 McArthur did not authorize a night-time execution, although the application expressly requested such authorization.

In the early evening on January 9, 1991, law enforcement officers assembled at the St. Louis Metropolitan Police Department's headquarters to coordinate the execution of the search warrants. The officers wanted to execute the search warrants simultaneously, but did not have enough personnel to do so. Instead, the officers organized into teams that would each execute several of the search warrants. Apparently, the Washingtons' residence was the last location searched by one particular team.

The Washingtons were asleep in bed when the officers arrived at 5920 McArthur at approximately 12: 30 a. m. The officers entered the residence by force, using a battering ram to break down the front door. There is some dispute, however, regarding whether the officers knocked on the front door and announced their presence before going inside. The government maintained that before the officers entered the residence, one officer knocked on the bedroom window while another agent knocked on the outside door. The government asserted that the officers entered the house only after announcing that they were police officers with a search warrant and after hearing one of the occupants inside respond, "go away." Unlike the government's version, the Washingtons asserted that the officers did not knock and announce their presence before entering the residence by force. Relying on their next door neighbor as an eyewitness,⁶ the Washingtons asserted that the officers simply approached the house and, without knocking or announcing their identity or purpose, used the battering ram to break down the front door.

The officers entered the residence with their weapons drawn.⁷ The officers encountered Clarence Washington in the dining room where they shouted at him to raise his hands, threatened to shoot him if he disobeyed the order, shoved him, and ordered him to sit. Flora Jean Washington was also ordered, at gunpoint, to comply with the officers' orders. The Washingtons were detained while the officers conducted a thorough search of the residence. Although the Washingtons were not physically injured as a result of the search, they did suffer emotional distress, and several items in the house, including furniture, carpets, doors, and an antique trunk, were damaged. The officers did not find any narcotics or drug paraphernalia that suggested a connection between the Washingtons and the MSTA or its members. The officers did, however, find and seize three firearms, ammunition, and certain personal papers. An officer gave the Washingtons a copy of the search warrant and a receipt for the items seized. However, the list of items seized was not attached to the copy of the search warrant and the carbon copy receipt given to the Washingtons did not list the ammunition and personal papers. The original receipt was later amended to include these items. Furthermore, the name provided on the receipt did not correspond with that of any agent involved in the search.

The Washingtons unsuccessfully sought an explanation of why their house had been searched, compensation for property damage, and return of the property seized. They then filed this action in federal district court, alleging that the officers obtained and executed the search warrant in an unreasonable and reckless manner, in violation of the Fourth, Fifth, and Fourteenth Amendments of the U.S. Constitution. The Washingtons further claimed that the officers' actions constituted assault and battery and that the search was an abuse of process under state law. The Washingtons brought this action in two counts: count one was a FTCA claim against the DEA, Department of Justice (DOJ), and the United States; count two was a 42 U.S.C. § 1983 civil rights claim against several individual St. Louis Metropolitan Police officers. The civil rights claim was tried to a jury and was dismissed at the close of the Washingtons' case. The district court then found in favor of the remaining defendants (DEA, DOJ, US) on the FTCA claim. See Washington, slip op. at 15. The district court held that the FTCA did not include constitutional torts, and that, under Missouri law, the officers' actions in executing the search warrant did not constitute assault and battery or abuse of process. See id. at 10-11, 14. This appeal followed.

Discussion

The Washingtons first argue that the district court erred in holding that the United States cannot be found liable under the FTCA for constitutional violations committed by its law enforcement officers. Citing Carlson v. Green, 446 U.S. 14, 19- 20 (1980), the Washingtons contend that the FTCA provides a private cause of action against the United States for the constitutional violations committed by the DEA agents who searched their residence. The Washingtons argue that it is "crystal clear that Congress views FTCA and Bivens⁸ as parallel, complementary causes of action." Id. at 19....