Soto-Cintron et al v. United States of America
Filing
42
OPINION AND ORDER. GRANTED 31 Motion for Summary Judgment. Judgment shall follow accordingly. Signed by Judge Salvador E. Casellas on 1/5/2016.(RJC)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
Eduardo Soto-Cintron, et al.,
Plaintiffs,
Civil No. 15-1123 (SEC)
v.
United States of America, et al.,
Defendants.
OPINION & ORDER
On February 12, 2015, Plaintiffs Eduardo Soto-Cintrón and his minor son ASM
sued the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2679,
et seq, claiming that federal agents subjected them to unlawful arrest, detention, and
assault. Pending before the Court is the United States’ Motion for Summary Judgment.
For the reasons that follow, this motion is GRANTED.
I.
Background1
On May 14, 2013, the United States Postal Inspection Service (USPIS)
intercepted a package sent from Florida, which they believed contained illegal
firearms. The USPIS requested the assistance of the Bureau of Alcohol, Tobacco,
Firearms and Explosives (ATF) to make a controlled delivery of the package in Puerto
Rico. See Docket # 32, ¶ 1. A warrant-backed examination of the package revealed
that it contained six undeclared Glock semi-automatic pistols. The warrant was based
upon possible felony violations of 18 U.S.C. § 922(a)(1)(A) and (a)(3), as well as 18
U.S.C. § 1715.
1
Unless otherwise noted, the following facts are uncontested.
Civil No. 15-1123 (SEC)
Page 2
Rather than deliver the package to the addressee in Puerto Rico, the operational
plan called for a notice to be left at the home of the addressee informing the recipient
that the package could be claimed at the U.S. Post Office in Coto Laurel, Puerto Rico.
The USPIS was the lead investigative agency with ATF providing assistance. USPIS
personnel took up primary surveillance positions to observe activity inside the Post
Office and parking lot while ATF personnel were posted within the perimeter.
During the operation, a USPIS inspector identified two vehicles over the radio
entering the Post Office: Plaintiffs’ red Ford F-150 pickup truck and a white Ford F150 which was later determined to have been driven by the suspect. Special Agent
(SA) Victor González heard over the radio that Plaintiffs remained in the vehicle for
some period of time once it entered the parking lot. This raised a red flag to SA
González.2 His suspicion was based on his experience as an ATF agent that, in some
controlled-delivery cases, the person that retrieves the package hands it over to
someone else. See Docket # 32, ¶¶ 5 and 7.3
While both trucks were still in the parking lot, a radio transmission from a
USPIS inspector revealed that the package had been delivered to the suspect. Another
radio transmission indicated that Plaintiffs’ red pick-up truck was leaving the parking
lot. See Docket # 32, ¶ 7. Upon hearing these transmissions, SA González concluded
that the package containing the weapons may have been in that truck. Before acting on
2
Although Plaintiffs deny this, they provide no evidence showing either that SA González did not hear the radio
broadcast, or that the same “raised a red flag.” Rather, they simply add that SA González was also suspicious
because the red truck later “began to pull out of the parking lot.” Plaintiffs also comment that another agent, SA
Laboy, stated that Plaintiffs’ truck was stopped because “it was believed that the guns may have been in the
truck.” See Docket # 36-1, ¶ 5.
3
Although Plaintiffs purport to deny this statement, they do not challenge with any competent evidence the
agents’ experience with these cases. Rather, Plaintiffs say that there is no “supporting statistical data” concerning
Defendant’s assertion. But Plaintiffs present no authority supporting the contention that statistical data is needed
to make a statement based on personal knowledge admissible for purposes of summary judgment. After all, it is
black-letter law that affidavits – even self-serving ones – are apt for consideration on summary judgment so long
as they “made on personal knowledge, set out facts that would be admissible in evidence, and show that the
affiant or declarant is competent to testify on the matters stated.” Fed. R. Civ. P. 56(e). SA González’s statement
clearly fits this mold.
Civil No. 15-1123 (SEC)
Page 3
his belief, SA González called USPIS inspector Thompson to verify the location of the
package. Thompson, however, told SA González that he did not know.
Given these circumstances, SA González decided to detain Plaintiffs’ truck.
ATF agents blocked the exit to the parking lot, approached the vehicle with weapons
drawn, and ordered Plaintiffs to exit the truck. Initially, Plaintiffs did not understand
what the ATF agents were saying because their windows were rolled up, the air
conditioning was on, and the radio was playing. After the vehicle stopped, ATF agents
removed Plaintiffs from the vehicles, placed them on the ground, and slapped on
handcuffs.
Plaintiffs remained in handcuffs between 10 to 15 minutes, during which they
were subjected to questioning by the ATF agents. A visual inspection of the truck’s
cabin did not reveal any package. The whole intervention lasted, at most, 20 minutes.
It is uncontested that Plaintiffs were never placed inside a police car or other law
enforcement vehicle during the stop. It is also uncontested that Plaintiffs did not suffer
any lasting injury.
II.
Standard of Law
Summary judgment is appropriate only if the “movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). A dispute is genuine if a “reasonable fact-finder
could resolve in favor of either party and a material fact is one that could affect the
outcome of the case.” Flood v. Bank of Am. Corp., 780 F.3d 1, 7 (1st Cir. 2015).
When conducting this analysis, courts “may not weigh the evidence,” Casas Office
Machs., Inc. v. Mita Copystar Am., Inc., 42 F.3d 668 (1st Cir. 1994), and must
construe the record in the “light most flattering” to the nonmovant. Soto-Padró v.
Public Bldgs. Authority, 675 F.3d 1 (1st Cir. 2012).
III.
Discussion
The FTCA “comprises a limited waiver of the federal government's sovereign
immunity with respect to private causes of action sounding in tort.” Fothergill v.
Civil No. 15-1123 (SEC)
Page 4
United States, 566 F.3d 248, 252 (1st Cir. 2009). Among other things, the FTCA
authorizes suits against the United States for claims of intentional torts (that is, claims
based on “assault, battery, false imprisonment, false arrest, abuse of process, or
malicious prosecution”) committed by its law enforcement officers. See 28 U.S.C. §
2680(h). In assessing Plaintiffs’ claim for unlawful arrest, detention, and assault, the
Court must look to the “law of the place where the act or omission occurred.” See
Calderón-Ortega v. United States, 753 F.3d 250, 252 (1st Cir. 2014) (quoting 28
U.S.C. § 1346(b)(1)). Puerto Rico substantive law thus governs here.
As to the scope of liability, the FTCA makes the federal government “liable in
the same manner and to the same extent as a private individual under like
circumstances.” 28 U.S.C. § 2674. This requirement is to be read liberally. As the
Supreme Court has stressed, the phrase “ ‘like circumstances’ do not restrict a court's
inquiry to the same circumstances, but require it to look further afield” for “private
person analogies” to the conduct in question. United States v. Olson, 546 U.S. 43, 44
(2005).
With respect to Plaintiffs’ claim for unlawful arrest and detention, the
Government raises a tiered defense. It first argues that Plaintiffs were never actually
arrested or unlawfully detained; rather, they were only subjected to a “brief
investigative stop” as authorized by Terry v. Ohio, 392 U.S. 1 (1968). Alternatively,
the Government contends that the detention was not unlawful pursuant to the laws of
Puerto Rico. Because the Court agrees with the Government on the first point, there is
no need to address the second. Before the ship sails, however, some explanation is
warranted as to that last statement.
The determination of whether a stop was lawful under Terry means only that
the officer’s intervention did not violate the detainee’s right, under the Fourth
Amendment, to be free from unlawful searches and seizures. Indeed, a Terry stop may
be valid even though the officer had no probable cause to arrest. See United States v.
Sokolow, 490 U.S. 1, 7 (1989). But Plaintiffs’ false arrest claim comes under Puerto
Civil No. 15-1123 (SEC)
Page 5
Rico law, which does require probable cause to arrest. As far as the Court has been
able to discern, the Puerto Rico Supreme Court has not addressed whether the
Commonwealth’s officers are allowed to perform Terry-style stops. And although the
officers in question here are federal agents, federal law makes the United States liable
“in the same manner and to the same extent as a private individual under like
circumstances” under the law of the state in which the offense occurred. 28 U.S.C. §
2674; Rodríguez v. United States, 54 F.3d 41, 44 (1st Cir. 1995) (“[T]he United States
is liable—“in the same manner and to the same extent”—for a false arrest of plaintiff
Rodríguez, ‘as a private individual’ would be in ‘like circumstances’ under the
applicable state law.”). So, the question is whether the United States is entitled to raise
Terry v. Ohio as a defense to an FTCA suit under Puerto Rico law premised on false
arrest and detention. While Puerto Rico substantive law governs, the answer to this
quandary unexpectedly lies in the common law concept of “conditional privilege.”
In Rodríguez v. United States, 54 F.3d 41, 45 (1st Cir. 1995), federal agents
mistakenly arrested the plaintiff because they had confused her with a wanted person.
The plaintiff brought suit against the United States under the FTCA alleging unlawful
arrest and detention. The district court entered summary judgment against the plaintiff.
On appeal, the First Circuit noted a paucity of Puerto Rico Supreme Court
jurisprudence addressing false arrest claims based on the execution of a valid arrest
warrant against the wrong person. Yet, finding that the “Puerto Rico Supreme Court
[had] conformed its limited ‘false arrest’ jurisprudence to common law principles,” the
First Circuit adopted the Restatement (Second) of Torts as the appropriate framework
for its analysis. The same reasoning applies here. Given that the Puerto Rico Supreme
Court has not addressed whether investigatory stops are valid under Puerto Rico law,
the Court shall examine Plaintiff’s false arrest and detention claim – and the viability
of the government’s defense – through the lens of the Restatement.4
4
In so doing, the Court is mindful that the Restatement “deals only with tort liability, and the question whether
the conduct of the actor in making an arrest is criminal is beyond its scope.” Restatement (Second) of Torts §
Civil No. 15-1123 (SEC)
Page 6
A warrantless arrest is privileged whenever “the conditions stated in one or
another of §§ 119, 120, and 121 and in §§ 122- 132” are satisfied. Restatement
(Second) of Torts § 118 (1965), cmt. c. Some of these sections are not relevant
because they deal with liability for arrests performed by private persons, see § 119 and
120; and for arrests made under warrant, see § 122-126. The other subsections concern
conditions of the arrest that are not in dispute here, see § 127-132 (concerning the
allowable time, place and purpose of arrests). For this case, then, § 121 is the only
relevant subsection.
Under § 121, a “a peace officer acting within the limits of his appointment is
privileged to arrest another without a warrant […] if, although no act or omission
constituting a felony has been committed, the officer reasonably suspects that such an
act or omission has been committed and that the other has committed it.” Restatement
(Second) of Torts § 121(b) (1965) (emphasis added). Whether by coincidence or not,
this language is functionally and semantically the same used by the Supreme Court in
Terry, which held that the “police can stop and briefly detain a person for investigative
purposes if the officer has a reasonable suspicion supported by articulable facts that
criminal activity ‘may be afoot,’ even if the officer lacks probable cause.” United
States v. Sokolow, 490 U.S. 1, 7 (1989) (emphasis added).
This observation brings us full circle. In Rodríguez, the First Circuit held that
“the United States is entitled to assert in its defense a conditional privilege conferred
upon its agent by applicable local law in the same manner and to the same extent as a
nongovernmental principal could assert in similar circumstances.” Rodríguez, 54 F.3d
45 (collecting cases). In this case, the Court holds that the Terry stop is such a defense,
and one which the government is entitled to raise here.5 Thus, if SA González
118 (1965). For this analysis, the Court will track the language of the Restatement, but this should not be
interpreted as a finding on whether or not Plaintiffs were “arrested” under Puerto Rico law.
5
An astute reader might question how a “nongovernmental principal” – that is, the “principal” of a “private
person” instead of a government agent – could ever raise a defense premised on the conduct of law enforcement
officers. Given that the government is liable to the same extent as the principal of a private person under
applicable state law, and that private persons cannot make investigatory stops, then how could the government
Civil No. 15-1123 (SEC)
Page 7
performed a valid investigatory stop, then his actions were privileged and Plaintiffs’
false arrest claim is dead on arrival.
The Terry Stop
In order to determine whether an investigatory stop is lawful under Terry, the
Court must ask two questions. First, whether the stop was “justified at its inception”
or, in other words, whether there was reasonable suspicion to support the detention.
United States v. Pontoo, 666 F.3d 20, 26 (1st Cir. 2011) (citing United States v.
Ruidíaz, 529 F.3d 25, 27 (1st Cir. 2008)). Second, the Court must ask whether the
actions taken by the officers were “reasonably related in scope to the circumstances
which justified the interference.” United States v. Acosta–Colón, 157 F.3d 9, 14 (1st
Cir. 1998).
A finding of reasonable suspicion must be premised upon “a particularized and
objective basis for suspecting the particular person stopped of criminal activity.” Id.
(citing United States v. Cortez, 449 U.S. 411, 417–18 (1981)). This requires the Court
to assess the “totality of the circumstances,” Id. (citing United States v. Arvizu, 534
U.S. 266, 273 (2002)), and determine whether the officer had a particularized and
objective basis to conclude that “criminal activity may be afoot.” See Terry, 392 U.S.
at 30. In doing so, the Court must cast aside any “inchoate and unparticularized”
suspicions or hunches, and focus on the “specific reasonable inferences [that the
officer] is entitled to draw from the facts in light of his experience.” Id. at 28 (citing
Brinegar v. United States, 338 U.S. 160 (1949)); see also United States v. Tiru-Plaza,
766 F.3d 111, 116 (1st Cir. 2014), cert. denied, 135 S. Ct. 1734 (2015) (courts must
raise such a defense? The flaw in this reasoning is that law officers are also private citizens, and may bear
personal liability when their actions as law enforcement agents run aground of applicable law. Indeed, the
legislative history accompanying the amendment to the FTCA adding the intentional torts exception (§ 2680(h))
makes this point clear: “Congress intended to make the Government independently liable in damages for the
same type of conduct that is alleged to have occurred in Bivens (and for which that case imposes liability upon
the individual Government officials involved).” Rodríguez v. United States, 54 F.3d 41, 45 (1st Cir. 1995)
(citing S.Rep. No. 588, 93d Cong., 2d Sess. 3 (1973), reprinted in 1974 U.S.C.C.A.N. 2789, 2791; and Bivens v.
Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 619 (1971)) (emphasis added).
Civil No. 15-1123 (SEC)
Page 8
defer “to the ability of trained and experienced police officers to draw from the
attendant circumstances inferences that would ‘elude an untrained person.’ ”).
The Court thus dons the shoes of SA González, since he was responsible for
the decision to detain Plaintiffs. From the outset, it is worth mentioning that much of
SA González's information came from the radio transmissions of USPIS personnel,
who had surveillance positions at the parking lot and the USPS premises. His reliance
on this information was eminently reasonable.
From the radio transmissions, SA González knew that two trucks – one red and
another white – had entered the postal office premises. SA González became
suspicious of the persons in the red truck, since the radio operator later indicated that
they had remained in the truck for quite some time. His suspicions were further
heightened because, from his experience with this type of controlled-delivery
operation, he knew that it would not be unusual for the person retrieving the package
from the Postal Office to be acting in concert with someone else. From these facts, it
was reasonable for SA González to infer that the persons in the red truck were waiting
for someone to hand them the package. SA González then heard that the package had
been delivered to the suspect, and that the red truck was leaving the parking lot.
So, at the time SA González decided to detain Plaintiffs, he had a reasonable
and particularized suspicion that the illegal firearms had been transferred to the
persons in the red truck, which was quickly leaving the parking lot. Not only that, but
SA González also attempted (albeit unsuccessfully) to corroborate the information he
had available. Considering the totality of the circumstances, the Court finds that the
stop was justified at its inception.
Plaintiffs resist this conclusion, arguing that the evidence shows that their
actions were benign. All they did was “pull into the Postal Office’s parking lot and go
into the building to retrieve their mail.” Docket # 36, p. 4. Certainly, innocent activity
cannot justify an investigative stop. But such conduct “can be suspicious when viewed
in the context of other information or surrounding circumstances that the police are
Civil No. 15-1123 (SEC)
Page 9
aware of.” People of Territory of Guam v. Ichiyasu, 838 F.2d 353, 355 (9th Cir. 1988)
(citing United States v. Cortez, 449 U.S. 411, 419 (1981)). In this case, context is
given by the special circumstances surrounding controlled-delivery cases, which may
involve the participation of other individuals aside from the one actually retrieving the
package. From SA González’s point of view, Plaintiffs’ otherwise innocent conduct –
which coincided with the main suspect’s retrieval of the package –was arguably
consistent with criminal activity. This challenge therefore fails.
Plaintiffs also argue that SA González did not have an objective basis to believe
that the package containing the illegal firearms had been transferred to the red pickup
truck. They say that the “Government had eyes on the package” at all times because
USPIS agents were surveilling the location. Likewise, Plaintiffs point out that another
agent testified that at the same time Plaintiffs were being stopped, the actual suspect
came out of the building and was arrested.
This argument presumes too much. It is not reasonable to infer that all agents
during the intervention had accurate and immediate situational awareness of the
location of all possible suspects and packages. Indeed, even if some agents were more
aware than others, the only one that matters is SA González, who relied almost
exclusively on the spotty radio broadcasts. Furthermore, the evidence on record simply
undermines this argument. In one of these transmissions, the radio operator signaled
the departure of the red truck. See Docket # 32-2, ¶ 14. SA González explained that he
“could not think of any other reason” for which the operator would make a point of
noting the departure of the truck, except to indicate that the truck may have been
leaving with the weapons on board. Id. at ¶ 11.
A law enforcement officer “is not required to possess the clarity of vision that
arises only from hindsight.” Pontoo, 666 F.3d at 28-29 (citing Illinois v. Wardlow, 528
U.S. 119, 125-26 (2000)). Indeed, courts must “take care to consider whether the
police are acting in a swiftly developing situation, and in such cases the court should
not indulge in unrealistic second-guessing.” United States v. Sharpe, 470 U.S. 675,
Civil No. 15-1123 (SEC)
Page 10
686 (1985). During the limited timespan between the radio transmission and Plaintiffs’
detention, the circumstances show SA González had a reasonable suspicion to believe
Plaintiffs’ truck contained the package in question. The stop was justified at its
inception.
Next, the Court must assess whether the stop was “reasonably related in scope
to the circumstances which justified the interference.” To do so, the Court must also
analyze the totality of circumstances. This means weighing, among other things, “the
length of the detention, the restrictions placed on an individual's personal movement,
the force (if any) that was exerted, the information conveyed to the detainee, and the
severity of the intrusion.” United States v. Sowers, 136 F.3d 24, 28 (1st Cir. 1998).
Above all, an inquiring court must bear in mind that “ ‘it would be unreasonable to
require that police officers take unnecessary risks in the performance of their duties.’ ”
Pontoo, 666 F.3d 20, 30 (1st Cir. 2011) (citing United States v. Taylor, 162 F.3d 12,
18 (1st Cir. 1998)). Here, it is clear that the actions taken by the ATF agents were
narrowly tailored and adequate under the circumstances.
To start, there is “no rigid time limitation on Terry stops.” United States v.
Acosta-Colón, 157 F.3d 9, 20 (1st Cir. 1998) (citing United States v. Sharpe, 470 U.S.
675, 685 (1985)). In this case, it is undisputed that the intervention lasted, at most,
twenty minutes, and Plaintiffs were in handcuffs for only a portion of that time. From
a pure numbers standpoint, this case is no outlier; the First Circuit has validated stops
lasting as much as 75 minutes. United States v. McCarthy, 77 F.3d 522, 531 (1st Cir.
1996). In the end, however, the “appropriate length of a Terry stop is gauged by
whether the officer diligently pursued a reasonable investigative approach calculated
to ensure officer safety and, at the same time, confirm or dispel his suspicions.”
Pontoo, 666 F.3d at 31. Here, it is uncontested that the agents searched both Plaintiffs
and the truck, and found nothing. As soon as another agent informed SA González that
Plaintiffs were not involved in any criminal activity and that they had captured the
Civil No. 15-1123 (SEC)
Page 11
suspect, Plaintiffs were released. The length of the stop was therefore commensurate to
its purpose.
Plaintiffs also complain that, because the agents handcuffed them and placed
them on the ground, the intervention went beyond what is typically allowed for an
investigatory stop. Nevertheless, “the limits of a Terry stop are not automatically
transcended by an officer's use of other prophylactic measures” where the safety of the
officer or public may be at risk. See Pontoo, 666 F.3d 20. These include restraint by
handcuffs, ordering a suspect to the ground, or stopping a car at gunpoint. Id.
(collecting cases). All three were used in this case, and all of them were justified. After
all, it is reasonable to believe that persons involved in a gun-smuggling operation
would also be armed, and to act accordingly.
The Court finds that Plaintiffs’ detention falls within the bounds drawn by
Terry and its progeny. As a result, the agents’ actions were privileged. Plaintiffs’ false
arrest and detention claims necessarily fail.6
Plaintiffs’ assault claim fares no better. This one is couched on the fact that
Plaintiffs were handcuffed and placed on the pavement, and that the agents had “no
justification to intervene” with them. But “[w]here a privilege to arrest exists, it
6
The Court notes that qualified immunity may provide an alternative basis for the resolution of this case. In
Abreu-Guzman v. Ford, the First Circuit dismissed FTCA claims against the United States for false arrest under
Puerto Rico law after determining that the federal agents were entitled to qualified immunity because they had a
reasonable basis to believe they had probable cause to detain the person. 241 F.3d 69 (1st Cir. 2001) (“A
reasonable officer could have believed there was probable cause that Abreu was [the suspect]”). Put differently,
the First Circuit affirmed the dismissal of the FTCA claim regardless of the objective existence of probable
cause, which is not appreciably different from the conclusion the Court reaches here. See also Rodríguez v.
United States, 54 F.3d 41, 45–47 (1st Cir. 1995) and Solis-Alarcón v. United States, 662 F.3d 577, 583 (1st Cir.
2011). Along the same vein, several courts have held that “if an employee would prevail on a particular
immunity under state law, so too should the United States under the FTCA.” See Valdez v. United States, 58 F.
Supp. 3d 795, 828 (W.D. Mich. 2014) (emphasis added) (“From a policy perspective, the answer would seem
self-evident: if the point of the FTCA is to make the United State vicariously liable for certain intentional torts of
its employees under state law, there would be no reason to suggest the United States should be subject to broader
liability than its employees would face under state law. Rather, one would expect the liability of the United
States to be coterminous with the liability of its employees under state law. So if an employee would prevail on a
particular immunity under state law, so too should the United States under the FTCA.”). But the law on this
point is not settled, as other courts have reached the opposite conclusion. Id.
Civil No. 15-1123 (SEC)
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justifies not only the confinement but also any conduct which is reasonably necessary
to effect the arrest.” Restatement (Second) of Torts, § 118 cmt. b. Here, the agents’
actions were “prophylactic measures” taken as part of a legitimate Terry stop. Those
actions were privileged, and cannot serve as a basis for the assault claim.
IV.
Conclusion
“No right is held more sacred, or is more carefully guarded, by the common
law, than the right of every individual to the possession and control of his own person,
free from all restraint or interference of others, unless by clear and unquestionable
authority of law.” Terry, 392 U.S. at 9 (citing Union Pac. R. Co. v. Botsford, 141 U.S.
250, 251 (1891)). There is no doubt that Plaintiffs’ experience must have been
harrowing. As the Seventh Circuit recently opined, the “proliferation of cases … in
which ‘Terry’ stops involve handcuffs and ever-increasing wait times in police
vehicles is disturbing… .” Ramos v. City of Chicago, 716 F.3d 1013, 1018 (7th Cir.
2013). The Court shares this sentiment, and stresses that this type of intervention must
not become the new normal.
That said, the agents in this case were indeed authorized by law and
circumstance to detain Plaintiffs. Defendant’s motion for summary judgment is,
therefore, granted as to all claims. Judgment shall follow accordingly.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 5th day of January, 2016.
s/ Salvador E. Casellas
SALVADOR E. CASELLAS
U.S. Senior District Judge
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