Alonzo v. USA

Filing 18

ORDER denying 6 Motion to Dismiss. So Ordered by Judge Joseph A. DiClerico, Jr.(gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Lilian Alonzo
v.

Civil No. 16-cv-337-JD
Opinion No. 2017 DNH 081

United States of America

O R D E R
Lilian Alonzo brought suit against the United States under
the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq.,
(“FTCA”), alleging that an agent of the United States Drug
Enforcement Agency (“DEA”), Michael Connolly, negligently shot
Alonzo while he was searching her home pursuant to a warrant.1
The government moves to dismiss the suit for lack of subject
matter jurisdiction.

Alonzo objects.
Standard of Review

In considering a motion to dismiss pursuant to Federal Rule
of Civil Procedure 12(b)(1), the court takes as true the
properly pleaded facts in the complaint and draws reasonable
inferences in the plaintiff’s favor.

Reddy v. Foster, --- F.3d

---, 2017 WL 104825, at *2 (1st Cir. Jan. 11, 2017).
also considers the evidence submitted by the parties.

1

The court
Carroll

The government represents that Connolly is now retired.

v. United States, 661 F.3d 87, 94 (1st Cir. 2011).

The party

asserting federal subject matter jurisdiction, the plaintiff in
this case, bears the burden of showing that it exists.2
Johansen v. United States, 506 F.3d 65, 68 (1st Cir. 2007).
Background
Beginning in October of 2013, the DEA and the Manchester
Police Department were investigating suspected drug trafficking
in Manchester, New Hampshire.
Sammy Garcia.

The investigation focused on

Garcia was suspected of working with Jose,

Jennifer, and Johanna Nunez.
At that time, Lilian Alonzo lived at 110 Beech Street in
Manchester, New Hampshire, and cared for her children and
grandchildren there.

Jose Nunez is Alonzo’s ex-husband, and

Jennifer and Johanna Nunez are her daughters.

Based on

intercepted communications, the DEA suspected that proceeds from
drug sales were being stored in Alonzo’s apartment.
The court issued a warrant on August 21, 2014, to conduct a
search of Alonzo’s home, and two other locations, to look for
money from Garcia’s drug operations.

DEA special agents,

including Connolly, and Manchester police SWAT team members met
at 6:00 a.m. on August 27, 2014, to make a plan for the search.

An action brought under the FTCA is tried to the court
without a jury. 28 U.S.C. § 2402.
2

2

The team knew that on that day Alonzo had at least two
grandchildren in the apartment with her.

Alonzo had no criminal

record and was not charged with a crime.
DEA agents, other than Connolly, were to remain on the
perimeter of the building while six team members went to
Alonzo’s apartment on the third floor.

Connolly was assigned

the job of “breacher” for the group going into the apartment,
meaning that Connolly would use a battering ram to get through
the front door.

When the group arrived, however, Connolly heard

children’s voices in the apartment, so he decided not to use the
battering ram.
Instead, the officers announced their presence, and someone
inside the apartment opened the door.

The team members went by

Connolly to “clear” the apartment before the search began.

When

a team member was unable to kick in a locked door, Connolly took
over.

Connolly held his gun in his left hand while he kicked at

the door.

When his foot got stuck in the door and then came

loose, Connolly lost his balance and fell backwards.

As he

fell, he accidentally shot his gun.
The bullet struck Alonzo, who was standing in the hall with
her young grandchild.

The bullet went through Alonzo’s left

elbow and into her abdomen, which caused blood and tissue to
fall onto the child.

Alonzo’s injuries have required multiple

surgeries and rehabilitation.
3

The court held a hearing on the motion on April 12, 2017.
During the hearing, the court heard argument from counsel who
reiterated the positions taken in their papers.
Discussion
Alonzo brings a claim of negligence against the government
under the FTCA, arising from the circumstances in which Connelly
shot her.

The government moves to dismiss for lack of subject

matter jurisdiction, on the grounds that Alonzo has not stated a
claim under the FTCA.
A.

Alonzo objects to the motion to dismiss.3

The FTCA
The FTCA waives the sovereign immunity of the United States

for certain tort claims and grants jurisdiction in the district
courts for those claims.
1441, 1443 (2013).

Millbrook v. United States, 133 S. Ct.

Subject matter jurisdiction to consider

claims under the FTCA exists if a government employee, acting
within the scope of his employment duties, causes injury or loss
“under circumstances where the United States, if a private
person, would be liable to the claimant in accordance with the
law of the place where the act or omission occurred.”

28 U.S.C.

Alonzo noted in her objection that the government appeared
to raise official immunity under New Hampshire law without
specifically identifying that defense. In its reply, the
government explained that it was not raising official immunity
for purposes of the motion to dismiss.
3

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§ 1346(b)(1).

To determine whether a private person would be

liable under the circumstances, the court looks for analogous
conduct that would impose liability on a private person.

United

States v. Olson, 546 U.S. 43, 47 (2005).
In Olson, 546 U.S. at 45-47, the Supreme Court reiterated
that “private person,” for purposes of the FTCA, does not mean a
public or governmental entity and that “under like circumstances” does not mean the same circumstances.

The Court

reviewed its prior decision in Indian Towing Co. v. United
States, 350 U.S. 61 (1955), in which it held that liability
under the FTCA requires “a court to look to the state-law
liability of private entities, not to that of public entities,”
when considering “‘activities which private persons do not
perform.’”

Olson, 546 U.S. at 46 (quoting Indian Wells, 350

U.S. at 64).

The “like circumstances” standard includes

consideration of circumstances that are different from the
actual governmental activity that is questioned.

Olson, 546

U.S. at 47.
The circumstances in Indian Towing are instructive.

There,

the plaintiff brought suit after its tugboat, pulling a barge,
went aground because a lighthouse, operated by the United States
Coast Guard, was not working.

350 U.S. at 61.

The plaintiff

asserted that the Coast Guard’s negligence in maintaining the
lighthouse caused the light to fail and brought suit under the
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FTCA.

Id.

The government argued that because private persons

do not operate lighthouses, no liability existed under the FTCA.
Id. at 64.
The Supreme Court disagreed.

The Court explained that the

Coast Guard’s operation of the lighthouse was analogous to a
private person who undertakes to warn the public of danger as a
good Samaritan.

Id. at 69.

In undertaking that activity, a

good Samaritan would assume a duty to use due care to make
certain that the light was working.4

Id.

In Olson, the plaintiffs, mine workers and a spouse,
brought a claim under the FTCA, “claiming that the negligence of
federal mine inspectors helped bring about a serious accident at
an Arizona mine” where the miners were injured.

546 U.S. at 45.

The government argued that mine inspection would not lead to
liability for a state or municipality and that mine inspection
was a unique government function.

Id.

The Court disagreed and

concluded that good Samaritan analogies also existed in the
context of mine inspection, as in the context of private parties
who do safety inspections.

Id. at 48.

For that reason,

liability existed under the FTCA.

Importantly, the Court did not consider various state and
municipal operations, such as road signs and other warnings of
dangers, as analogous activities.
4

6

B.

Alonzo’s Claim
In this case, Alonzo alleges that Connolly “had a duty to

conduct the search of Ms. Alonzo’s home with reasonable care
under the circumstances, and to avoid conduct which would place
officers and the home occupants in foreseeable danger of
injury.”

Compl. Doc. no. 1, ¶ 30.

Alonzo further alleges that

Connolly breached that duty of care when he kicked in the closed
door inside the apartment while holding his loaded gun with his
finger on or near the trigger.5

The government contends that New

Hampshire law does not recognize a duty for law enforcement
officers to use reasonable care while executing a search warrant
during a criminal investigation and that a search conducted by
DEA agents is a uniquely governmental action without a private
analogue.
C.

Private Analogue
The government characterizes Alonzo’s claim as alleging

that Connolly negligently executed the search warrant.

The

government asserts that no private analogue exists for negligent
execution of a search warrant because only law enforcement

The government is liable under the FTCA for the actions of
its employees, “acting within the scope of his office or
employment.” § 1346(b)(1). Therefore, the defendant in this
case is the government under a theory of vicarious liability.
5

7

officers can obtain and execute search warrants.

See, e.g.,

Washington v. DEA, 183 F.3d 868, 873 (8th Cir. 1999) (concluding
that “the application process for, and execution of, a search
warrant has no private analogue”).

In this case, however,

Alonzo does not challenge either the application process or the
execution of the search warrant.

Therefore, even if it were

persuasive, the Eighth Circuit’s conclusion in Washington does
not apply in this case.
The Supreme Court has explained that “all Government
activity is inescapably ‘uniquely governmental’ in that it is
performed by the Government.”

Indian Towing, 350 U.S. at 67.

Nevertheless, the Court stated, “it is hard to think of any
governmental activity on the ‘operational level’ . . . which is
‘uniquely governmental,’ in the sense that its kind has not at
one time or another been, or could not conceivably be, privately
performed.”

Id. at 68.

For that reason, the FTCA “extends to

novel and unprecedented forms of liability.”

United States v.

Muniz, 374 U.S. 150, 159 (1963).
In Indian Towing and Olson, the Supreme Court held that
liability under the FTCA was not premised on governmental or
municipal liability for the same or similar activities.
546 U.S. at 45-46.

Olson,

Instead, the court must “look to the state-

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law liability of private entities.”6

Id. at 46.

Applying the

rule from Olson and Indian Towing, other courts have found
analogies to actions by private persons for governmental
activities.
In Mayorov v. United States, 84 F. Supp. 3d 678, 697-701
(N.D. Ill. 2015), the court considered FTCA claims of negligence
and false imprisonment, arising from an immigration detainer
issued against the plaintiff by ICE officers, and analogized
those claims to negligence by a private security contractor and
a citizen’s arrest.

See also Watson v. United States, 133 F.

Supp. 3d 502, 525-26 (E.D.N.Y. 2015).

In Avalos-Palma v. United

States, 2014 WL 3524758, at *12 (D.N.J. July 16, 2014), the
court analogized wrongful deportation by ICE agents to
violations of statutory duties by a private person with
supervisory authority over the plaintiff.
The duty of the Ogala Sioux Tribe Public Safety Commission
in response to a car accident, specifically the officer’s
failure to find the car which had gone off the highway, was
found to be analogous to the duty of a good Samaritan under

In Muniz, which involved two consolidated cases, the
plaintiffs brought claims under the FTCA to recover for injuries
due to the alleged negligence of the medical staff, in one case,
and guards, in the other case, at federal prisons. 374 U.S. at
152. The Court found that “an analogous form of liability
exists” because states “have allowed prisoners to recover from
their jailers for negligently caused injuries” and some states
allowed suits against the state itself. Id. at 159-60.
6

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South Dakota law.

White v. United States, 2014 WL 4782855, at

*5-*6 (D.S.D. Sept. 24, 2014).

A high speed chase by military

police was found to be analogous to a private claim for
negligent driving.

Stroh v. United States, 2012 WL 4069354, at

*6 (D. Colo. Sept. 17, 2012); but see Hetzel v. United States,
43 F.3d 1500, 1503-04 (D.C. Cir. 1995) (prior to Olson,
analogizing DEA officer’s high speed chase to law enforcement
activity).

Courts have found no private analogue for government

action when the challenged action is quasi-judicial or quasilegislative rather than operational.

Storms v. United States,

2015 WL 1196592, at *19-*20 (E.D.N.Y. Mar. 16, 2015).
Despite the holding in Olson, the Fifth Circuit analogizes
federal law enforcement activities, such as actions by DEA
agents and Border Patrol officers, to state or municipal law
enforcement officers and applies the rules and defenses that are
applicable to law enforcement officers under state law.

See

Mendez v. Poitevent, 823 F.3d 326, 334-35 (5th Cir. 2016);
Villafranca v. United States, 587 F.3d 262-64 (5th Cir. 2009).
In the context of FTCA claims arising from the plaintiff’s
detention by immigration officials, the Second Circuit noted
that some courts have drawn an analogy to state law enforcement
officers but found the more appropriate analogy would be to a
private person making a citizen’s arrest, although no final
ruling was necessary in that case because the result was the
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same under either analogy.
78, 95-96 (2d Cir. 2012).

Liranzo v. United States, 690 F.3d
The Eighth Circuit found a private

analogy in negligence for an Indian tribe’s police department
but also noted that the plaintiff did not state a claim even if
the state’s public duty law would apply.

Sorace v. United

States, 788 F.3d 758, 763-64 & n.3 (8th Cir. 2015).
Alonzo contends that a private analogue exists in her case
for a private person who owns guns and is required to use due
care, even in perilous situations.

For example, Alonzo

suggests, a private person might attempt to enter a locked room
while holding a gun, because of concern about the danger in the
room, and would be required to use reasonable care in the use of
the gun in that situation.7

Under Olson and Indian Towing, a

Analogous circumstances also could arise if a private person
suspected that an intruder was in his home and attempted to
roust the intruder while holding his gun or if a person
accidentally shot another person while in his own house or
another person’s house. See, e.g., Citizens Ins. Co. of Am. v.
Ung, 2 F. Supp. 3d 622, 625 (E.D. Pa. 2014) (finding insurance
coverage for negligence action against individual who shot
another individual); North Carolina Farm Bureau Mut. Ins. Co. v.
Lynn, 2011 WL 4917043, at *3 (N.C. Ct. App. Oct. 18, 2011)
(finding insurance coverage for negligence action arising from
defendant’s shooting of an individual in his home); Am. Family
Mut. Ins. Co. v. Larson, 2010 WL 1439687, at *1 (D. Minn. Apr.
13, 2010); Key v. Burchette, 517 S.E.2d 667, 372 (N.C. Ct. App.
1999); Fire Ins. Exchange v. Tibi, 51 F. Supp. 2d 1065, 1069 (D.
Mont. 1995). In addition, private security guards and property
managers might be armed to protect themselves or private
property. See, e.g., Allen v. Bryers, --- S.W.3d ---, 2016 WL
7378560, at *1 (Mo. Dec. 20, 2016) (en banc); Hemings v. Redford
Lounge, Inc., 485 N.E.2d 1378, 1380 (Ind. Ct. App. 1985).
7

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private analogy exists in this case to private individuals using
guns, including in circumstances that are similar to Connolly’s
use of his gun while kicking in a door at Alonzo’s apartment.8
D.

Viability of Negligence Claim
Alonzo contends that Connolly owed her a duty to use

reasonable care in handling his gun while conducting the search.
“To recover for negligence, the plaintiff must demonstrate that
the defendant had a duty to the plaintiff, that she breached
that duty, and that the breach proximately caused injury to the
plaintiff.”

England v. Brianas, 166 N.H. 369, 371 (2014).

In

its motion to dismiss, the government challenges the existence
of a duty in the circumstances of this case.
“A duty exists, under [New Hampshire] common law, to use
reasonable care to avoid foreseeable risks of harm.”

Copp v.

Atwood, 2005 WL 139180, at *2 (D.N.H. Jan. 24, 2005) (citing
Goodwin v. James, 134 N.H. 579, 583 (1991)).

When a question

arises as to whether the defendant owed a duty to the plaintiff,
the court must determine “whether the defendant is under any
obligation for the benefit of the particular plaintiff.”
England, 166 N.H. at 371.

In other words, the court must

New Hampshire allows private persons to own and carry guns.
In fact, New Hampshire citizens are now allowed to carry loaded
and concealed guns without a license. See Senate Bill 12,
signed by Governor Sununu on Feb. 22, 2017, which repealed RSA
159:4.
8

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consider “whether the plaintiff’s interests are entitled to
legal protection against the defendant’s conduct.”

Lahm v.

Farrington, 166 N.H. 146, 150 (2014) (internal quotation marks
omitted).
The government asserts, based on Lahm, 166 N.H. at 154,
that Connolly owed no duty to Alonzo because New Hampshire does
not recognize any duty owed by police officers to use reasonable
care in conducting a criminal investigation.9

In support, the

government contends that the interests of law enforcement
officers in conducting their investigations without the
restraints imposed by concerns about liability outweigh any duty
owed to a criminal suspect.

Alonzo contends that Lahm does not

limit the duty of police officers to the extent the government
asserts and that Lahm does not apply because liability under the
FTCA is based on analogous actions by private individuals, not
law enforcement officers.
The government’s theory is based on its view of the
particular relationship between Connolly, as a law enforcement

The New Hampshire Supreme Court long ago decided that police
officers do have a duty to use reasonable care while performing
their duties and that police officers are liable for injuries
that they negligently inflict on both those they are arresting
and innocent third parties. Am. Motorists Ins. Co. v. Rush, 88
N.H. 383, 190 A. 432, 434 (1937). Although the government
argues that Am. Motorists was overruled by Lahm, the New
Hampshire Supreme Court did not make that ruling explicitly and
the facts of the cases do not show that to be true.
9

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officer, and Alonzo, as a criminal suspect.

As is explained

above, however, Connolly’s actions are analyzed in the context
of an analogous private person rather than as a law enforcement
officer.10

As a result, the analysis of duty owed by law

enforcement in Lahm does not apply here where the court must
look to analogous conduct by a private individual rather than a
law enforcement officer.
In this case, Alonzo and the children in her home had an
interest in being protected from being shot by Connolly while he
handled his gun during the search of their apartment.

Connelly

knew that Alonzo and the children were close by and were at risk
if his gun discharged.

Therefore, Connolly had a duty to use

reasonable care to avoid the foreseeable risk of accidentally
shooting his gun, which was loaded with his finger on or near
the trigger, while he kicked in a door.

Private individuals,

The dispute about the appropriate analogy also raises a
question of whether state-law affirmative defenses, which apply
only to public actors such as law enforcement officers, can be
used by the government to avoid liability under the FTCA. The
Supreme Court has held that state law immunities cannot limit
claims under the FTCA. Muniz, 374 U.S. at 164-65; Rayonier Inc.
v. United States, 352 U.S. 315, 318-19 (1957). Whether other
state law affirmative defenses may be used by the government to
avoid liability under the FTCA has been decided differently by
the courts that have addressed the question. See, e.g., Fifer
v. United States, 649 F. App’x 426, 428 (9th Cir. 2016); Mendez,
823 F.3d at 335-36; Liranzo, 690 F.3d at 96-96; Begay v. United
States, 2016 WL 6394925, at *24–*27 (D.N.M. Sept. 30, 2016);
Valdez v. United States, 58 F. Supp. 3d 795, 828-29 (W.D. Mich.
2014).
10

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when using guns, have a specific duty to use reasonable care to
avoid injury to people, and a higher degree of care is required
when the risk of an accident is considerable.

See Webster v.

Seavey, 83 N.H. 60, 138 A. 541, 543 (1927).
As a result, Connolly, whose actions are considered in the
context of an analogous private person, had a duty to use
reasonable care in handling his gun during the search and
neither the holding nor the reasoning in Lahm applies to
Alonzo’s negligence claim in this case.
Conclusion
For the foregoing reasons, the defendant’s motion to
dismiss (document no. 6) is denied.
SO ORDERED.
__________________________
Joseph DiClerico, Jr.
United States District Judge
April 24, 2017
cc:

Megan E. Douglass, Esq.
Andrew K. Lizotte, Esq.
H. Jonathan Meyer, Esq.

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