DAVILA v.UNITED STATES OF AMERICA

Filing 14

OPINION. Signed by Judge Mark R. Hornak on 7/28/14. (bdb)

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ANGELICA DAVILA,
Plaintiff,
v.
NORTHERN REGIONAL JOINT POLICE
BOARD, et aI,
Defendants.

ANGELICA DAVILA,
Plaintiff,

v.
UNITED STATES OF AMERICA,
Defendant.

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) Civil Action No.2: 13-cv-00070
) Judge Mark R. Hornak
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Civil Action No. 2:14-00070
Judge Mark R. Hornak

OPINION
Mark R. Hornak, United States District Judge
This dispute is back front-and-center on the Court's docket with the filing of a second
lawsuit against the United States and another round of Motions, some new, others travelling old
ground. Angelica Davila ("Ms. Davila") originally filed suit against the Northern Regional Joint
Police Board ("Police Board"), two Police Board officers, a Federal Immigration and Customs
Enforcement ("ICE") officer, and the Allegheny County Jail ("the Jail"), alleging the violation of
her rights under the Fourth and Fourteenth Amendments to the United States Constitution,
actionable via 42 U.S.C. § 1983.

She claimed that those parties violated her federal
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constitutional rights in conjunction with a traffic stop which she somewhat generally asserted
was based on her Hispanic heritage and led to her seizure and custody without probable cause.
On October 21, 2013, in a lengthy Opinionl, the Court dismissed Ms. Davila's claims
against Police Board Sergeant John Sicilia and the Jail for failing to plausibly state a cause of
action, and against ICE Agent Brianna Tetrault ("Agent Tetrault") under the doctrine of qualified
immunity. See ECF No. 84; Davila v. N Joint Reg 'I Police Bd., 979 F.Supp.2d 612 (W.D. Pa.
2013). Then, on January 16, 2014, Ms. Davila filed suit against the United States under the
Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671 et seq., making claims of false
arrest, false imprisonment, and negligence, based on ICE agents' alleged role in her detention
and imprisonment. 2:14-cv-00070-MRH, ECF No.1. Due to the cases' shared factual nexus,
the Court consolidated them, and Ms. Davila later filed an Amended Complaint ("AC") against
the United States. ECF No. 109.
Then came our Court of Appeals' decision in Galarza v. Szalczyk, 745 F.3d 634 (3d Cir.
2014). In Galarza, the district court dismissed Section 1983 municipal liability claims against a
county jail on the grounds that the jail's alleged custom or practice of enforcing all immigration
detainers it received from ICE could not be unconstitutional, because such a policy was
"consistent with federal statutes and regulations." Galarza v. Szalczyk, 2012 WL 1080020, at

*18 (E.D.

Pa. Mar. 30, 2012). More specifically, the district court concluded that the language

of 8 C.F.R. § 287.7

which provides that, upon a determination by a federal officer to issue an

immigration detainer to a local government agency, such agency "shall maintain custody of the
alien for a period not to exceed 48 hours" - required state and local law enforcement agencies to
hold persons subject to an ICE detainer in custody. ld. at * 19.

I

The extensively-pled facts of the case can be found there, and the Court will not repeat them in this Opinion.

2

The Third Circuit directly refuted that conclusion, holding that the regulatory language
the district court focused on was not a mandatory command that deprived a local law
enforcement agency of all discretion in determining whether to detain a suspected alien, but
merely an indication that if the agency held that individual pursuant to the detainer, any such
detention could not exceed 48 hours. Galarza, 745 F.3d at 639-42. According to the majority
for a divided court of appeals, other, more relevant provisions in the Regulation described
immigration detainers as serving to "advise" other agencies and as being in the nature of
"requests," and other circuits had uniformly classified such detainers as "requests." Id. The
court found that construction to be additionally supported by the anti-commandeering principle
of the Tenth Amendment, which reserves all powers not explicitly conferred to the federal
government for the states. 2 Id. at 643-45.
A barrage of motions in this case followed Galarza in short order. First, Ms. Davila filed
a Motion for Reconsideration of the portion of the Court's Order dismissing her claims against
the Jail. ECF No. Ill. In its previous Opinion, the Court, citing the Galarza district court's
opinion, wrote:
The Court is not aware of, nor is the Plaintiff able to cite to, a case that has held a
local government entity's decision to rely on and comply with [8 C.F.R. § 287.7]
to be unconstitutional on its face, and no basis has been advanced to conclude that
it was unconstitutional for the Jail to abide by the immigration detainer issued by
ICE here ...
Additionally, nothing in the [Second Amended Complaint] indicates that the Jail
knew or should have known that Ms. Davila was being wrongfully detained until
ICE instructed the Jail to release her the next morning, and the Jail complied ... the
Plaintiff cites to no authority that places a duty on local jails to independently
investigate the adequacy of the probable cause supporting immigration detainers.

More explicitly, the court held that under the Tenth Amendment, federal immigration officials cannot command
state and local government agencies or officials to imprison suspected aliens as persons of interest to the federal
government. Galarza, 745 F.3d at 644.
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Davila, 979 F.Supp.2d at 635. Due to the Third Circuit's clarification of the discretionary nature
of immigration detainers in Galarza, a basis does now exist for district courts to conclude that a
local jail's policy of detaining individuals solely on ICE detainers, including those unsupported
by probable cause, could be an unconstitutional practice creating municipal liability under
Section 1983. See Miranda-Olivares v. Clackamas Cty., 2014 WL 1414305, at *4-11 (D. Ore.
Apr. 11, 2014) (citing the Third Circui l' s opinion in Galarza and granting summary judgment for
the plaintiff on just such a municipal liability claim against a county jail).
If that were not enough to grant Plaintiff's Motion, she also now produces new
information, which she credibly demonstrates had previously eluded her reasonable efforts to
discern, indicating that the Jail knew or should have known that Ms. Davila was wrongfully
detained approximately eight (8) hours before her actual release. That information, contained in
documents produced early in the discovery process3 , indicates that the Jail received a fax from
ICE at 11 :05 p.m. on the night of Ms. Davila's arrest, ordering her release approximately two
and a half hours after she was transported to the Jail, and that the Jail had a copy of her lawful
permanent resident ("LPR") card and other proof of her legal residence. See ECF Nos. 112-1
112-5.
A court should grant reconsideration of a prior order if the moving party demonstrates (1)
an intervening change in the controlling law; (2) the existence of new evidence that was
unavailable when the court issued its order; or (3) the need to correct a clear error of law or fact
or to prevent a manifest injustice. Max's Seafood Cafe by Lou-Ann, Inc. v. Quinteros, 176 F.3d

3 According to Ms. Davila, Allegheny County produced this infonnation to counsel for the Defendant Police Board
and Defendant Police Board Officer Andrew Bienemann in response to a Rule 45 subpoena in February 2014. ECF
No. 112 at 4. Counsel for those Defendants then supplied the infonnation to Ms. Davila's lawyer, who had
previously made several requests for the same type of infonnation to Allegheny County under the Pennsylvania
Right to Know Law, 65 Pa. Cons. Stat. § 67.101 et seq., and the Freedom ofInfonnation Act, 5 U.S.c. § 552 et seq.
ld. at 4-6.

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669, 677 (3d Cir. 1999) (internal citation omitted). Ms. Davila has identified a change in the
controlling law (Galarza) and produced new and previously unavailable evidence which,
considered separately or together, plainly alter the calculus of the issue that was then before the
Court, as demonstrated by the reasoning of the Court's own prior Opinion. The Court will
therefore grant the Plaintiffs Motion for Reconsideration and vacate its Order dismissing the
claims against the Jail. She will be allowed to amend her Complaint to reassert claims against
the Jail.
Defendant Police Board Officer Andrew Bienemann ("Officer Bienemann") also filed a
Motion for Reconsideration, contending that Galarza constituted a change in the controlling law
as to the claims against him, and that the Court made a clear error of law in failing to dismiss Ms.
Davila's claims against him on qualified immunity grounds. ECF No. 121.
A government official sued under Section 1983 is entitled to qualified immunity unless
the plaintiff shows that the official violated a statutory or constitutional right that was "clearly
established" at the time of his alleged conduct. Ashcroft v. al-Kidd, 131 S.Ct. 2074, 2080 (2011).
A right is "clearly established" when the statutory or constitutional question confronting the
official is "beyond debate" - that is, when every reasonable official in the defendant's shoes
would have understood that he was violating that right. !d. at 2083. See also Lane v. Franks,
2014 WL 2765285, at *10 (2014). Officer Bienemann claims Galarza demonstrates that there
was no clearly established precedent indicating that he could or should have refused to arrest Ms.
Davila on the ICE detainer, and that he is therefore entitled to qualified immunity.
While Officer Bienemann is correct as to the lack of clarity in the law on immigration
detainers, Ms. Davila does not ground her claims against him on any alleged violation of a
clearly established right related to such detainers. Instead, she claims that Officer Bienemann

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violated her right to equal protection, which prohibits selective enforcement of the law, and her
right to be free from arrest without probable cause. It is well settled and beyond debate that both
of those rights were clearly established at the time of the events at issue. See Whren v. United
States, 517 U.S. 806, 813; Wong Sun v. United States, 371 U.S. 471,479-80 (1963).
Officer Bienemann points to the language of Plumhoffv. Rickard, 134 S.Ct. 2012,2023
(2014)

which instructs that courts should not define "clearly established" law generally and

must instead scrutinize whether the official acted reasonably in the particular circumstances he
faced - arguing that had this Court so scrutinized the circumstances he dealt with during the
traffic stop in question, event by event, it should have granted him the benefit of qualified
immunity. The Court disagrees. Ms. Davila alleges that, right off the bat, Officer Bienemann
committed a constitutional violation by pulling her over because of her Hispanic ethnicity. In its
prior opinion, the Court concluded that a plausible, reasonable inference could be dravvTI from the
facts pled that Officer Bienemann "acted with a discriminatory purpose in investigating Ms.
Davila's immigration status at least in part because of her ethnicity." Davila, 979 F.Supp.2d at
630. Officer Bienemann has presented nothing that would change the Court's conclusion as to
that alleged violation of Ms. Davila's clearly established equal protection right to be free from
selective enforcement of the law.
Even if the Court were to put aside the allegation that the entire premise for Officer
Bienemann's initial stop of Ms. Davila was an equal protection violation, the Court cannot
conclude at this juncture that the rest of Officer Bienemann's conduct was necessarily not
violative of clearly established constitutional rights. An investigative stop must be temporary
and last no longer than necessary to effectuate the purpose of the stop. Florida v. Royer, 460
U.S. 491, 500 (1983). Although an officer may further investigate beyond the original purpose

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of the stop by developing reasonable suspicion of criminal activity, United States v. Givan, 320
F.3d 452,458 (3d Cir. 2003), the stop becomes a de facto arrest if it can no longer be justified as
reasonable. United States v. Sharpe, 470 U.S. 675, 685 (1985). As Officer Bienemann suggests,
this is a fact-intensive, case-specific inquiry. United States v. Arvizu, 534 U.S. 266, 273 (2002).
But at this stage of the case, that reality cuts against his argument for dismissal.
As laid out in the Second Amended Complaint ("SAC"), Ms. Davila's traffic stop
presented a unique set of circumstances. However, viewed in the light most favorable to the
Plaintiff, that stop was a two-hour detention for a minor traffic infraction, caused solely by
Officer Bienemann\ allegedly based on Ms. Davila's ethnicity, that at some point became an
arrest lacking in probable cause. If proven, that would be a violation of clearly established
constitutional rights. It may turn out that Officer Bienemann was acting reasonably in detaining
Ms. Davila for over two hours, and that he possessed probable cause to support her arrest, but
there is still much uncertainty in the fledgling record as to what exactly occurred, and why,
leading up to and during that roadside detention. As a result, it is not plain to the Court if or
when the detention became an arrest, or how Officer Bienemann established reasonable
suspicion of criminal activity to investigate Ms. Davila's immigration status or probable cause to
arrest her. See Carrasca v. Pomeroy, 313 F.3d 828, 837 (3d Cir. 2002). The Court will therefore
deny Officer Bienemann's Motion without prejudice to its later reassertion upon a more fully
developed record at summary judgment.

The Court finds unconvincing Officer Bienemann's argument that the portion of the time of the stop comprised of
his waiting for ICE to get back to him should not count against him. Officer Bienemann made the stop himself,
posed questions to Ms. Davila's passenger about his immigration status, and then affirmatively contacted ICE about
both of the occupants of the vehicle. It is plain that he set the wheels in motion as to all that occurred during those
two-plus hours. For purposes of analyzing this issue, he owns them.

4

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Finally, the United States has filed a Motion to Dismiss Ms. Davila's false arrest and
false imprisonment claims against it under the FTCA. 5 ECF No. 115. The FTCA waives
sovereign immunity for torts committed by federal government employees acting within the
scope of their employment. 28 U.S.C. § 1346(b)(1). The scope of FTCA liability is determined
by the law of the state where the tort occurred. Lomando v. United States, 667 F.3d 363, 372-73
(3d Cir. 2011) (internal citations omitted). Under Pennsylvania law, the elements of false arrest
and false imprisonment are the same: (1) detention of another person (2) that is unlawful.
Manley v. Fitzgerald, 997 A.2d 1235, 1241 (Pa. Commw. Ct. 2010).
As an initial matter, the United States cannot be liable for the conduct of Officer
Bienemann prior to Agent Tetrault's request that he detain Ms. Davila. As the employee of a
local police department, he does not fall within the statute's definition of a federal government
employee, 28 U.S.C. § 2671, and he was not an agent of the federal government such that his
roadside performance necessarily in all respects was subject to federal government supervision.
See Logue v. United States, 412 U.S. 521, 530-31 (1973). Further, Agent Tetrault's questioning
of Ms. Davila by phone did not constitute a seizure for Fourth Amendment purposes. See
Rodgers v. Lincoln Towing Serv., Inc., 771 F.2d 194, 199-200 (7th Cir. 1985); United States v.
Royer, 460 U.S. 491, 497-98 (1983).
The period of time following Agent Tetrault's request to Officer Bienemann to detain
Ms. Davila is another matter. The United States cites to a gaggle of cases for the proposition that
ICE's issuance of an immigration detainer for Ms. Davila did not place her in federal custody,
and therefore the United States cannot be liable for her detention. 6 However, the plaintiffs in

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In her response to that Motion, Ms. Davila withdrew her FTC A negligence claim. ECF No. 129 at 5.

See Garcia v. INS, 733 F.Supp. 1554, 1555 (M.D. Pa. 1990); Nasious v. Two Unknown B.l.C£' Agents, 657
F.Supp.2d 1218, 1229-30 (D. Col. 2009), ajJ'd 336 F. App'x. 894 (10th Cir. Feb. 19,2010); ZolicojJer v. U.S. Dep't

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those cases were prison inmates incarcerated on other criminal charges. Ms. Davila was taken
into physical custody, after a couple of hours in a suburban parking lot, solely on the authority of
the immigration detainer.
infraction.

She was never charged with any state crime or even a traffic

While Galarza has made it plain that detainers are "requests" that local law

enforcement are not required to comply with, the detainer Agent Tetrault issued was the only
reason Ms. Davila formally was arrested or confined (outside of her car) at all. The United
States is "answerable under the FTCA 'in the same manner and to the same extent as a private
individual under like circumstances'" for the tortious actions of its employees. Lomando v.
United States, 667 F.3d 363,373 (3d Cir. 2011) (citing 28 U.S.C. § 2674 and United States v.
Olson, 546 U.S. 43, 46 (2005)). As alleged, an employee of the federal government, acting
within the scope of that employment, directly caused Ms. Davila's arrest and confinement. This
provides a plausible basis for liability on the part of the United States.
The United States further argues that the claims against it should be dismissed because
Agent Tetrault had probable cause to detain Ms. Davila under the authority of 8 U.S.C. §
1304(e), which makes failure to carry "any certificate of alien registration or alien registration
receipt card" an independent federal misdemeanor. According to the AC, while speaking with
Ms. Davila, Agent Tetrault asked her if she had a visa, and she told Agent Tetrault that she was
an LPR. AC at,-r 57. Ms. Davila then told Agent Tetrault that she had lived in the United States
for years but did not have her LPR card on her person. Id. at,-r 64. Numerous courts have held
that such information establishes probable cause to arrest an individual under 8 U.S.C. § 1304(e).
See United States v. Castro-Tirado, 407 F.Supp. 210, 211 (E.D.N.Y. 1976); United States v.
Hernandez-Rojas, 470 F.Supp. 1212, 1220-21 (E.D.N.Y. 1979); Martinez v. Nygaard, 831 F.2d
o/Justice, 315 F.3d 538, 541 (5th Cir. 2003); Campos v. INS, 62 F.3d 311, 314 (9th Cir. 1995); Orozco v. INS, 911
F.2d 539, 541 (II th Cir. 1990); Mohammed v. Sullivan, 866 F.2d 258, 260 (8th Cir. 1989); Campillo v. Sullivan, 853
F.2d 593,595 (8th Cir. 1988).

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822,828 (9th Cir. 1987); Mountain High Knitting. Inc. v. Reno, 51 F.3d 216,218-19 (9th Cir.

1995); United States v. Moya-Matute, 735 F.Supp.2d 1306, 1344-46 (D.N.M. 2008); Barrera v.

us. Dep't ofHomeland Sec., 2009 WL 825787, at *6 (D. Minn. Mar. 27, 2009); United States v.
Hernandez-Sanchez, 2011 WL 3420598, at *6 (E.D.N.C. Aug. 4, 2011); United States v.
Vasquez-Ortiz, 344 F. App'x 551,554-55 (lIth Cir. Sept. 16,2009); Polanco v. United States,
2014 WL 795659, at *5 (E.D.N.Y. Feb. 27, 2014). Importantly, under Pennsylvania law, an
arrest based on probable cause is justified and therefore cannot create liability for false arrest or
false imprisonment. Renk v. City ofPittsburgh, 641 A.2d 289, 293 (Pa. 1994).
The Court does note that there is not one iota of evidence in the AC or in the somewhat
developed record filed with the pending Motions that Ms. Davila was ever charged with a
violation of 8 U.S.C. § 1304(e), or that Agent Tetrault or any other law enforcement officer, state
or federal, contemplated arresting her on such a violation. It is apparent from the information in
the record and the papers filed by both parties that Ms. Davila was detained under 8 U.S.C. §
1357(a)(2), which grants federal immigration officers the power to make a warrantless civil
arrest of an alien if they have probable cause that an individual is in the United States in violation
of immigration law and is likely to escape before a warrant can be obtained for her arrest.

Babula v. INS, 665 F .2d 293, 298 (3d Cir. 1981).
However, that detail does not direct this Court's inquiry when determining the reach of
probable cause for an arrest, even for an offense that was not in the subjective contemplation of
the law enforcement officer. In considering that question in the Fourth Amendment context, the
Supreme Court has stated:
[A]n arresting officer's state of mind (except for the facts
irrelevant to the existence of probable cause. See Whren v.
U.S. 806, 812-13 (1996); Arkansas v. Sullivan, 532 U.S. 769
say, his subjective reason for making the arrest need not be the
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that he knows) is
United States, 517
(2001). That is to
criminal offense as

·

.

to which the known facts provide probable cause. As we have repeatedly
explained, "'the face that the officer does not have the state of mind which is
hypothecated by the reasons which provide the legal justification for the officer's
action does not invalidate the action taken as long as the circumstances, viewed
objectively, justify that action. '" Whren, supra, at 813 (quoting Scott v. United
States, 436 U.S. 128, 138 (1978)). "[T]he Fourth Amendment's concern with
'reasonableness' allows certain actions to be taken in certain circumstances,
whatever the subjective intent." Whren, supra, at 814.

Devenpeck v. Alford, 543 U.S. 146, 153 (2004). The offense establishing probable cause need
not even be "closely related" to and based on the same conduct as the offense identified at the
time of arrest:
Such a rule makes the lawfulness of an arrest tum upon the motivation of the
arresting officer - eliminating, as validating probable cause, facts that played no
part in the officer's expressed subjective reason for making the arrest, and
offenses that are not "closely related" to that subjective reason (internal citations
omitted). This means that the constitutionality of an arrest under a given set of
known facts will "vary from place to place and from time to time," Whren, supra,
at 815, depending on whether he correctly identifies a general class of offense for
which probable cause exists. An arrest made by a knowledgeable, veteran officer
would be valid, whereas an arrest made by a rookie in precisely the same
circumstances would not. We see no reason to ascribe to the Fourth Amendment
such arbitrarily variable protection.

Id. at 153-54.
Because Ms. Davila alleges facts in the AC establishing that Agent Tetrault had probable
cause to arrest her for a violation of 8 U.S.C. § I304(e), the United States cannot be liable under
the FTCA for false arrest or false imprisonment flowing from that arrest.
Any basis for liability on the part of the United States for Ms. Davila's subsequent
imprisonment at the Jail is precluded by the fact that, at 11 :05 p.m. on the night of her arrest,
Agent Tetrault transmitted a fax to the Jail ordering (or requesting) that she be released from
custody. Within two and a half hours after an ICE agent issued a request for Ms. Davila's
detention, ICE personnel had followed the procedure for an independent review of a warrantless
arrest established by federal Regulation, see 8 C.F.R. § 287.3(a)-(d), recognized that the detainer

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was issued in error, and apparently faxed a release order to the Jail.7 Any further delay in Ms.
Davila's release, which was still about eight (8) hours away, was plainly not caused by any agent
of the United States. The Court will therefore grant the United States' Motion in its entirety and
dismiss Ms. Davila's case against the United States.
To sum up the Court's rulings, the Plaintiffs Motion for Reconsideration is granted, the
Court's dismissal of the Jail from the case is vacated, and Ms. Davila may file an amended
Complaint within twenty-one (21) days of the date of this Opinion, reasserting her claims against
the Jail. Officer Bienemann's Motion for Reconsideration is denied, and all claims asserted
against him remain live. The United States' Motion to Dismiss is granted, and the Plaintiff's
case against the United States is dismissed.
An appropriate Order will follow.

Mark R. Hornak
United States District Judge

tB,

Dated: July
2014
cc: All counsel of record

7 At oral argument on these Motions, the parties were not yet prepared to go all in and stipulate to the authenticity of
that fax. They were in agreement that it was produced by Allegheny County in response to a Rule 45 subpoena
directed to it.

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