IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 96-50117
Summary Calendar
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RAFAELA RIVERA and RAYMUNDO RIVERA,
Plaintiffs-Appellants,
versus
UNITED STATES OF AMERICA,
Defendant-Appellee.
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Appeal from the United States District Court for
the Western District of Texas
(EP-94-CV-32)
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November 14, 1996
Before REAVLEY, JONES and STEWART, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellants Rafaela and Raymundo Rivera appeal the
dismissal of their tort claim for want of jurisdiction pursuant
to Rule 12(b)(1) of the Federal Rules of Civil Procedure.
Plaintiffs contend that a cause of action against the United
States for the physical seizure of a person by a United States
Customs Officer is not barred by the “customs exception” of 28
*
Pursuant to Local Rule 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in Local Rule
47.5.4.
U.S.C §2680(c). Defendant’s motion to dismiss was granted by the
district court. We affirm for the following reasons:
1. Customs Service Officer Brian Martin apprehended
Plaintiff Rafaela Rivera in a forceful wrist/arm lock when
she refused to follow his request to step away from her car
while Inspector Antonio Martinez bent over to search the
inside of the vehicle’s trunk. The temporary seizure of
Mrs. Rivera was carried out in the course and as part of the
lawful detention and search by U.S. Customs officials during
a customs inspection of a vehicle at a border entry point.
Claims against the government for officer Martin’s actions,
therefore, fall squarely within one of the enumerated
exceptions to the government’s waiver of sovereign immunity,
specifically, the “customs exception” to the Federal Tort
Claims Act. 28 U.S.C. §2680(c). See Capozzoli v. Tracey,
663 F.2d 654, 658 (5th Cir. 1981).
2. Intentional tort claims arising out of arrests by
Customs agents are not barred by §2680(c). Gasho v. U.S.,
39 F.3d 1420, 1434 (9th Cir. 1994), cert. denied, __ U.S.
__, 115 S.Ct. 2582 (1995). Appellants in their brief do not
argue that an intentional tort was committed by Officer
Martin, but claim instead that the government was negligent
in training and supervising its officers, and that Customs
officer Martin was negligent in evaluating the situation
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before him and in the amount of force he used to apprehend
Mrs. Rivera. The record does not support a finding of
malice or of any intentional tortious conduct by Officer
Martin. Therefore the Riveras’ argument that their claim is
not barred by §2680(c) fails.
AFFIRMED.
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