UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 94-1369
MANUELA RODRIGUEZ, ET AL.,
Plaintiffs, Appellants,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gilberto Gierbolini, Senior U.S. District Judge]
Before
Torruella,* Chief Judge,
Bownes, Senior Circuit Judge,
and Cyr, Circuit Judge.
Juan Rafael Gonzalez-Munoz, with whom Gonzalez Munoz Law Office,
Gerardo Pavia-Cabanillas and Moreda & Moreda were on brief for
appellants.
Peter R. Maier, Attorney, Guillermo Gil, United States Attorney,
Frank W. Hunger, Assistant United States Attorney, and Robert S.
Greenspan, Attorney, were on brief for appellee.
May 15, 1995
*Chief Judge Torruella heard oral argument in this matter, but
did not participate in the drafting or the issuance of the panel
opinion. The opinion is therefore issued pursuant to 28 U.S.C.
46(d).
CYR, Circuit Judge. Plaintiffs-appellants Manuela
CYR, Circuit Judge.
Rodr guez and family members challenge the summary judgment
entered in the United States District Court for the District of
Puerto Rico dismissing their Federal Tort Claims Act ("FTCA")
suit for damages resulting from the errant arrest and imprison-
ment of Manuela Rodr guez by the United States Marshals Service
pursuant to a valid warrant. We affirm the district court
judgment.
I
I
BACKGROUND1
BACKGROUND
On March 14, 1975, in Mineola, New York, an individual
who identified herself as "Manuela Rodr guez" was arrested on
drug charges by the United States Drug Enforcement Administration
("DEA"). The arrestee provided DEA with a social security number
and the following additional information which the agents record-
ed on a standard DEA booking form: sex: female; height: 5';
weight: 140 pounds; race: white; place of birth: Maranjito
[sic], Puerto Rico; date of birth: December 29, 1942;
citizenship: United States; identifying characteristics: scar
on stomach, right-handed; eyes: brown; hair: brown; mother:
deceased; father: deceased; sister: Martha Rodriques. On April
q
7, 1975, the United States District Court for the Southern
District of New York issued an arrest warrant against "Manuela
1The relevant facts are recited in the light most favorable to
plaintiffs-appellants, against whom summary judgment was entered. See
Velez-Gomez v. SMA Life Assur. Co., 8 F.3d 873, 874 (1st Cir. 1993).
2
Rodr guez," directed to the DEA for execution. The DEA never
g
located the subject.
In 1989, the United States Marshals Service became
responsible for executing DEA arrest warrants, and Deputy Marshal
Sandra Rodr guez ("Deputy Rodr guez"), Southern District of New
York ("SDNY"), was assigned to locate the subject of the 1975
arrest warrant. Sometime later, a credit bureau check by Deputy
Rodr guez yielded a fresh lead: a "Manuela Rodr guez" residing
in Bayam n, Puerto Rico, with the identical social security
number recorded in the 1975 DEA booking form.
Deputy Rodr guez promptly dispatched an "arrest packet"
to the United States Marshals Service, District of Puerto Rico
("DPR"), which included copies of the 1975 DEA booking form and a
handwritten information form prepared by the United States
Marshals Service, SDNY. Deputy Rodr guez requested the United
States Marshals Service, DPR, to "check the following lead." Her
cover memorandum summarized most of the identifying information
in the accompanying documents and included the following addi-
tional information: a/k/a Lopez, Dora Restrepo, a/k/a Restrepo,
Dora; weight: 140 (back in 1975); sister: Martha Rodr guez.
g
Even though Deputy Rodr guez, just five days earlier, had shown a
photograph of the 1975 arrestee in the New York City neighborhood
where "Manuela Rodr guez" was last believed to have resided, her
cover memorandum noted: "photo not available." Nor did Deputy
Rodr guez request fingerprints for inclusion in the arrest
packet. Shortly after the arrest packet reached Puerto
3
Rico on January 26, 1990, the deputy marshals assigned to the
case, C sar Torres and Eugenio D az, requested that the United
States Marshals Service, SDNY, forward a photograph of the
subject. The record is silent as to whether fingerprints were
requested. In any event, Deputies Torres and D az once again
were advised that no photograph was available and that SDNY could
provide no additional information.
On February 8, 1990, after confirming that a Manuela
Rodr guez indeed was residing at the Bayam n address listed in
the arrest packet, Deputies Torres and D az alerted a magistrate
judge that an arrest was imminent. Later in the afternoon,
Deputies Torres and D az proceeded to the Bayam n address to
execute the arrest warrant, and identified themselves to plain-
tiff-appellant Pedro Gonzalez Martinez ("Martinez"), plaintiff
Rodr guez's husband. Martinez phoned plaintiff Rodr guez at her
place of work, and she arrived home at approximately 4:50 p.m.
At her insistence, the deputies interviewed plaintiff
Rodr guez in the presence of her family. She confirmed most of
the information provided in the arrest packet, including her full
name, social security number, birthplace, birthdate, abdominal
scar, right-handedness, and that both her parents were deceased.
Prior to her arrest, plaintiff also told the deputy marshals that
she had a sister named "Marta Rodr guez." Although the summary
t g
judgment record reveals that plaintiff Rodr guez has three
siblings, including a sister named "Maria" and/or "Marta," the
only grounds asserted in opposition to summary judgment below
4
were the alleged three-inch height difference, a twenty-pound
weight difference, an additional scar on plaintiff Rodr guez's
forehead, the failure of the United States Marshals Service,
SDNY, to forward a photograph and fingerprints to Puerto Rico,
and the failure of Deputies Torres and D az to request finger-
prints.
When Deputies Torres and D az advised that they had an
arrest warrant for "Manuela Rodr guez," plaintiff protested to
no avail that she could not be the individual named in the
warrant since she had never been to New York. Immediately after
the arrest, the deputies attempted likewise to no avail to
contact a magistrate judge, then booked plaintiff and transported
her to a pretrial detention facility for incarceration pursuant
to the provisional commitment order previously issued by the
magistrate judge. The following day, February 9, plaintiff was
brought before a magistrate judge and released on personal recog-
nizance pending a removal hearing on February 13, 1990.
In anticipation of the removal hearing, Deputy D az
again requested a photograph of the 1975 arrestee from the United
States Marshals Service, SDNY. Finally, on February 10, a
photograph taken at the Mineola Police Department at the time of
the 1975 arrest was mailed to Puerto Rico. When the photograph
arrived on February 12, it was readily determined that plaintiff
Rodr guez was not the "Manuela Rodr guez" arrested in 1975. On
February 13, the government moved to dismiss all proceedings
against plaintiff Rodr guez.
5
In due course the United States Marshals Service
disallowed the administrative claim filed by plaintiffs-appel-
lants, clearing the way for the present action against the United
States for false arrest and false imprisonment based solely on
the conduct of its deputy marshals in (1) initiating, through
Deputy Rodr guez, the wrongful arrest and detention of plaintiff
Rodr guez pursuant to the 1975 arrest warrant without obtaining
or forwarding a photograph and fingerprints of the 1975 arrestee
to the District of Puerto Rico; (2) executing the arrest warrant,
through Deputies Torres and D az, without a photograph and
fingerprints of the subject and notwithstanding the height and
weight differences between plaintiff Rodr guez and the 1975
arrestee; and (3) delaying plaintiff Rodr guez's initial appear-
ance before a magistrate judge.2
The United States moved for summary judgment on all
claims. The district court ruled that plaintiffs had not gener-
ated a trialworthy dispute as to whether the arresting deputies
had a reasonable basis for believing that plaintiff Rodr guez was
the subject named in the 1975 arrest warrant. It concluded that
the arresting deputies, with valid warrant in hand, were under no
duty to corroborate their reasonable identification by obtaining
either fingerprints or a fifteen-year-old photograph and that any
failure on the part of Deputy Rodr guez to gather or forward such
information was immaterial because the information made available
2Appellants have not pursued the latter claim on appeal.
6
to Deputies Torres and D az prior to the arrest was adequate to
support a reasonable belief by the arresting deputies that
plaintiff Rodr guez was the person named in the 1975 warrant.
Plaintiffs-appellants challenge the district court
rulings, on two grounds: (1) that Deputies Torres and D az, with
neither a photograph nor the fingerprints of the 1975 arrestee,
could not have formed a reasonable belief that plaintiff Rodr -
guez was the subject of the 1975 warrant, particularly in light
of the height and weight discrepancies; and (2) that Deputy
Rodr guez negligently failed to include a photograph and finger-
prints of the 1975 arrestee in the arrest packet transmitted to
the United States Marshals Service, DPR.
The United States responds in kind. First, it claims
that Deputies Torres and D az had reasonable cause to believe
that plaintiff Rodr guez was the 1975 arrestee; hence, they were
not negligent. Second, even assuming negligent conduct on the
part of Deputy Rodr guez in the pre-arrest investigation, federal
law enforcement officers owe no duty to exercise reasonable care
in conducting pre-arrest investigations and, secondly, FTCA
2680(h) waives sovereign immunity from suit for certain
enumerated intentional torts only among them false arrest and
false imprisonment and not for mere negligent investigation.
II
II
DISCUSSION
DISCUSSION
A. Summary Judgment
A. Summary Judgment
7
A grant of summary judgment is subject to plenary
review under the same criteria incumbent on the district court.
Guzman-Rivera v. Rivera-Cruz, 29 F.3d 3, 4 (1st Cir. 1994).
Summary judgment is appropriate where the record, viewed in the
light most conducive to the party resisting summary judgment,
reveals no trialworthy issue of material fact, and the party
requesting it is entitled to judgment as a matter of law. Id.
B. Sovereign Immunity
B. Sovereign Immunity
For many years the general waiver of sovereign immunity
afforded by FTCA 2674 permitted tort actions to be brought
against the United States "in the same manner and to the same
extent as [against] a private individual under like
circumstances," 28 U.S.C. 2674, except for such so-called
"intentional torts" as assault, battery, false imprisonment,
false arrest, malicious prosecution, abuse of process, libel,
slander, misrepresentation, deceit, and interference with con-
tract rights, 28 U.S.C. 2680(h). Then, in 1974 Congress
narrowed the "intentional torts" exception so as to enable
actions against the United States based on six state-law torts
assault, battery, false imprisonment, false arrest, abuse of
process and malicious prosecution arising from acts or omis-
sions of its "investigative or law enforcement officers." Id.
Thus, the United States is liable "in the same manner and to
the same extent" for a false arrest of plaintiff Rodr guez,
"as a private individual" would be in "like circumstances" under
the applicable state law.
8
C. Applicable Substantive Law
C. Applicable Substantive Law
The FTCA ordains that the "law of the place" where the
act or omission occurred shall govern actions for damages against
the United States. 28 U.S.C. 1346(b). Its reference to the
"law of the place" encompasses choice-of-law principles. See
Richards v. United States, 369 U.S. 1, 11-13 (1962); In re All
Maine Asbestos Litigation, 772 F.2d 1023, 1029 (1st Cir. 1985),
cert. denied, 476 U.S. 1126 (1986). As all material acts and
omissions by Deputy Rodr guez took place in New York, we would
look to New York law for the rule of decision applicable to her
actions. New York choice-of-law principles provide that conduct-
regulating causes of action normally are governed by the law of
the place where an actionable injury is sustained. See Schultz
v. Boy Scouts of Am., Inc., 480 N.E.2d 679, 684 (N.Y. 1985).
Any injury to plaintiff Rodr guez was sustained in
Puerto Rico. Moreover, the parties, as well as the district
court, assumed from the start that Puerto Rico law governs any
actionable claim predicated on alleged acts and omissions of
Deputy Rodr guez in New York. In these circumstances, we do
likewise, see Commercial Union Ins. Co. v. Walbrook Ins. Co.,
Ltd., 7 F.3d 1047, 1048 n.1 (1st Cir. 1993), since Puerto Rico
law bears a "reasonable relation" to all claims in litigation.
Finally, since the false arrest and false imprisonment claims
under Puerto Rico law raise no relevant distinction in the
present context, we treat them as identical causes of action.
9
Cf. Ayala v. San Juan Racing Corp., 112 P.R. Dec.804, 812 (1982).
D. The False Arrest Claims Relating
D. The False Arrest Claims Relating
to Deputy Marshals Torres and D az
to Deputy Marshals Torres and D az
Plaintiff Rodr guez contends that Deputies Torres and
D az subjected her to false arrest by executing the 1975 warrant
despite certain discrepancies between the physical description
given by the 1975 arrestee and the physical description and
biographical data Deputy Rodr guez provided to the arresting
officers. These discrepancies were sufficient, she argues, to
engender a reasonable doubt which the arresting deputies should
have resolved by obtaining a photograph or fingerprints of the
1975 arrestee. Their failure to do so therefore precluded
summary judgment on the central issue whether the arresting
officers could have harbored a reasonable belief that plaintiff
was the person named in the arrest warrant.
Misidentification cases comprise a distinct subset of
false arrest claims, for which particularized rules and standards
were fashioned at common law. See Restatement (Second) of Torts,
125 (1965). Even though many such claims have found their way
into the courts over the years, see William B. Johnson, Liability
for False Arrest or Imprisonment Under Warrant as Affected by
Mistake as to Identity of Person Arrested, 39 A.L.R.4th 705
(1985), careful research has disclosed no reported Puerto Rico
Supreme Court decision addressing a false arrest claim based on
the execution of a valid arrest warrant against the wrong person.
10
As a general matter, however, the Puerto Rico Supreme
Court has conformed its limited "false arrest" jurisprudence to
common law principles. See, e.g., Ayala, 112 P.R. Dec. at 813
(citing common law sources, including Restatement (Second) of
Torts); Dobbins v. Hato Rey Psychiatric Hosp., 87 P.R.R. 28, 31-
32 (1962) (citing common law sources, including Restatement,
Torts (1938)). Accordingly, consistent with our longstanding
practice in cases where the Puerto Rico court has not diverged
from common law principles, see Importers Ctr., Inc. v. Newell
Cos., Inc., 758 F.2d 17, 20 (1st Cir. 1985) (looking to Restate-
ment (Second) of Contracts (1979), absent controlling Puerto Rico
law); United States v. Marshall, 391 F.2d 880, 883 (1st Cir.
1968) (citing Restatement, Torts, where Puerto Rico Supreme Court
demonstrated pattern of reliance on common law authority), we
adopt the Restatement (Second) of Torts, 35-45A, 112-36, as
the appropriate framework for analysis of the instant false
arrest claim.
1. Conditional Privilege
1. Conditional Privilege
Generally speaking, an arrest conducted pursuant to a
valid warrant is conditionally privileged, and no false arrest
liability lies against the officers responsible. Restatement
(Second) of Torts, 118, 122 (1965). Moreover, where an
agent's privilege is "properly exercised on his principal's
behalf," the principal likewise has a defense to an action based
on the conduct of the agent. Restatement (Second) of Agency,
11
217(a)(iii) (1958).3 The privilege attaching to the conduct of
a government employee acting within the scope of his employment
likewise has been recognized as a defense available to the United
States in actions based on the so-called intentional torts
enumerated in FTCA 2680(h). See, e.g., Arnsberg v. United
States, 757 F.2d 971, 978-79 (9th Cir. 1985) (government liabili-
ty for false arrest under FTCA determined in light of privilege
accorded law enforcement officer effecting arrest), cert. denied,
475 U.S. 1010 (1986); Caban v. United States, 728 F.2d 68, 74 (2d
Cir. 1984) (same). Thus, 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 circum-
stances. The legislative history accompanying the 1974 amendment
makes clear that 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
3Section 217. Where Principal or Agent has Immunity or Privilege
Section 217. Where Principal or Agent has Immunity or Privilege
In an action against a principal based on the conduct of a
In an action against a principal based on the conduct of a
servant in the course of employment:
servant in the course of employment:
(a) The principal has a defense if:
(a) The principal has a defense if:
. . . .
. . . .
(iii) the agent had a privilege which he properly
(iii) the agent had a privilege which he properly
exercised on his principal's behalf . . . .
exercised on his principal's behalf . . . .
Restatement (Second) of Agency, 217(a)(iii).
12
involved)." See S. Rep. No. 588, 93d Cong., 2d Sess. 3 (1973),
reprinted in 1974 U.S.C.C.A.N. 2789, 2791 (emphasis added); see
also Bivens v. Six Unknown Named Agents of Fed. Bureau of Nar-
cotics, 403 U.S. 388 (1971).
Although it is undisputed that plaintiff Rodr guez was
arrested pursuant to a valid arrest warrant, the conditional
privilege would not insulate the arresting officers from liabili-
ty unless the arrestee was
(a) . . . a person sufficiently named or otherwise
described in the warrant and [was] reasonably believed
by the [officer] to be, the person intended, or
(b) although not such person, . . . knowingly
caused the actor[s] to believe [her] to be so.
Restatement (Second) of Torts, 125 (emphasis added). Since the
record plainly reflects that plaintiff Rodr guez maintained
throughout that she was not the person named in the 1975 warrant,
we need only inquire pursuant to subsection 125(a) whether
(1) she was "sufficiently named or otherwise described in the
warrant" and (2) Deputies Torres and D az "reasonably believed"
that she was "the person intended" in the warrant. See id.
125(a).
First and foremost, there can be no question that the
person arrested was "sufficiently named" in the 1975 arrest
warrant, see id. 125(a), which directed the arrest of a person
with the same name as plaintiff Rodr guez. A law enforcement
officer "is privileged to arrest the person to whom the name [in
the warrant] applies with complete accuracy, although the [offi-
13
cer] may have reason to suspect that a mistake has been made, and
that the person, though accurately named, is not the person
intended." Id. 125 cmt. f (emphasis added).
The United States argues that the name in the 1975
warrant, together with the information contained in the arrest
packet, provided ample basis for Deputies Torres and D az to form
an objectively reasonable belief that plaintiff Rodr guez was the
person named in the warrant. Indeed, the information plaintiff
herself provided in response to questions from the deputies
comported in virtually every detail with the physical description
in the arrest packet, except for a three-inch discrepancy in
height and a twenty-pound difference in weight.4
We agree with the government that these slight
discrepancies minor variations between the plaintiff's physi-
cal description and the fifteen-year-old DEA booking form de-
scription could not have undermined the objective
reasonableness of the arresting deputies' belief that plaintiff
was the person named in the 1975 warrant. Furthermore, apparent-
4The arresting deputies confirmed that plaintiff Rodr guez's
birthplace, birthdate, abdominal scarring, right-handedness, citizen-
ship, race, and Social Security number were all identical to the data
contained in the arrest packet. Plaintiff even confirmed that her
sister had the same name as that which the 1975 arrestee had given for
her sister. Finally, plaintiff informed Deputies Torres and D az
that, like the 1975 arrestee, both her parents were deceased as well.
The record is silent as to whether anyone (including plaintiff)
noted the three-inch height discrepancy at the time of arrest. The
twenty-pound weight difference was reasonably attributed by the
deputies to the fact that almost fifteen years had passed since the
arrest of "Manuela Rodr guez" in Mineola, New York.
14
ly mindful of the risks inherent in executing a fifteen-year-old
arrest warrant, Deputies Torres and D az prudently attempted to
obtain further information, as well as a photograph, from the
United States Marshals Service, SDNY, but were told that no photo
or additional information was available. Indeed, the arresting
deputies even afforded plaintiff Rodr guez an opportunity to
explain how anyone other than she could have provided the DEA
with all this information in 1975. Plaintiff Rodr guez was
unable to explain then and offers no explanation now.
Their painstaking efforts could have left Deputies
Torres and D az with little inkling let alone a reasonable
belief that plaintiff Rodr guez was not the "Manuela Rodr -
guez" named in the arrest warrant. Thus, notwithstanding their
errant arrest of an innocent person, the arresting officers
having utilized every available means to preclude misidentifica-
tion were left with no grounds for forming a reasonable belief
that plaintiff Rodr guez was not the person intended in the 1975
arrest warrant. Consequently, the execution of the valid 1975
arrest warrant by Deputies Torres and D az was privileged. And,
lastly, the United States was entitled to rely on the privilege
which attached to the arresting deputy marshals as a complete
defense to liability for false arrest, as provided by Restatement
(Second) of Agency, 217(a)(iii).
E. The Claims Relating to Deputy Rodr guez
E. The Claims Relating to Deputy Rodr guez
Plaintiffs-appellants further contend that the United
States is liable for the "negligent investigation and initiation
15
of arrest proceedings" by Deputy Rodr guez. The United States
counters that federal law enforcement officers owe no legal duty
to exercise reasonable care in conducting pre-arrest investi-
gations. Additionally, it argues that FTCA 2680(h) waives
sovereign immunity from suit for six enumerated intentional torts
only -- assault, battery, false imprisonment, false arrest, abuse
of process and malicious prosecution. Thus, according to the
United States, even if local law afforded a right of action for
negligent investigation and initiation it would be barred by
sovereign immunity.
16
1. Negligent Investigation
1. Negligent Investigation
Plaintiffs-appellants point to no authority which
recognizes a right of action for "negligent investigation" in
these circumstances, nor have we found any authority for imposing
liability on the sovereign for negligent investigation, whereas
several courts have rejected such claims. See, e.g., Smith v.
State, 324 N.W.2d 299, 302 (Iowa 1982); Landeros v. City of
Tucson, 831 P.2d 850, 851 (Ariz. App. Ct. 1992); Wimer v. State,
841 P.2d 453, 455 (Idaho App. Ct. 1992); cf. Bernard v. United
States, 25 F.3d 98, 102 (2d Cir. 1994) (applying New York law in
FTCA action and rejecting claim that law enforcement officers
failed to exercise due care in effecting arrest); Boose v. City
of Rochester, 421 N.Y.S.2d 740, 744 (N.Y. App. Div. 1979) (ruling
that plaintiff "may not recover under broad general principles of
negligence . . . but must proceed by way of the traditional
remedies of false arrest and imprisonment and malicious
prosecution"). We therefore decline the invitation to speculate
that the Puerto Rico Supreme Court would be receptive to such a
claim.
2. Instigation of False Arrest
2. Instigation of False Arrest
Plaintiffs-appellants cite Sami v. United States, 617
F.2d 755 (D.C. Cir. 1979), as support for their contention that
the United States may be sued for the conduct of Deputy Rodr guez
in initiating the errant arrest. Sami held that FTCA 2680(h)
opens the government to suit for false arrest even though its law
enforcement officer was not directly involved in "frontline law
17
enforcement work." See id. at 764; but cf. Pooler v. United
States, 787 F.2d 868, 872 (3d Cir.) (restricting waiver of
sovereign immunity effected under FTCA 2680(h) to enumerated
torts by investigative or law enforcement officers "in the course
of a search, a seizure or an arrest"), cert. denied, 479 U.S. 849
(1986). We need not resolve the question addressed in Sami,
however, since we conclude that no right of action would lie
under the legal principles likely to be applied by the Puerto
Rico Supreme Court based on the conduct of Deputy Rodr guez.
One who instigates or participates in the unlawful
confinement of another is subject to liability to the other for
false arrest. Restatement (Second) of Torts, 45A. "Instiga-
tion" is defined as "words or acts which direct, request, invite
or encourage the false [arrest] itself." Id. 45A cmt. c. "In
the case of an arrest, [instigation] is the equivalent, in words
or conduct, of 'Officer, arrest that man!'" Id. Though it is by
no means clear that Deputy Rodr guez's request to "check the
following lead," see supra p. 3, amounted to "instigation" as
defined in the Restatement, we consider whether Deputy Rodr guez
herself would be liable for instigating a false arrest of plain-
tiff Rodr guez in these circumstances.
Instigation of false arrest, like the underlying tort
itself, is subject to the conditional privilege accorded arrests
effected pursuant to a valid warrant. Id. 45A cmt. b. Conse-
quently, the conduct of Deputy Rodr guez would be privileged so
long as the arrestee was "sufficiently named or otherwise de-
18
scribed in the warrant" and the officer instigating the arrest
"reasonably believed" that plaintiff Rodr guez was "the person
intended" in the arrest warrant. Id. 125(a); see id. 45A
cmt. b.
As noted above, see supra p. 13, there is no question
but that plaintiff Rodr guez was "sufficiently named" in the 1975
warrant. Nor did the evidence developed at summary judgment
generate a trialworthy dispute as to whether Deputy Rodr guez
"reasonably believed" that the person identified in the arrest
packet she forwarded to Puerto Rico was the person intended by
the 1975 arrest warrant. See id. 125 cmt f. Moreover, plain-
tiffs-appellants have never suggested, either below or on appeal,
that their opportunity to conduct discovery was inadequate.
The record evidence reflects that Deputy Rodr guez
matched the name and social security number of the fugitive with
the name and social security number of an individual residing in
Puerto Rico. The arrest packet Deputy Rodr guez forwarded to
Puerto Rico included extensive personal and family information
provided by the "Manuela Rodr guez" arrested in 1975, which
matched almost precisely the personal and family information
gathered on plaintiff Rodr guez in 1990. There were two minor
discrepancies between the information provided by the 1975
arrestee and that provided by plaintiff Rodr guez: a three-inch
height difference and a twenty-pound weight difference. But
there is no record evidence whatsoever to suggest that Deputy
Rodr guez was even aware of these discrepancies.
19
Thus, the information forwarded by Deputy Rodr guez,
when matched with the information relating to plaintiff Rodr guez
herself, afforded ample basis for forming an objectively reason-
able belief that plaintiff Rodr guez was the person named in the
1975 arrest warrant. Consequently, Deputy Rodr guez's conduct
relating to the errant arrest, even assuming it were actionable
as a negligent instigation claim, would be conditionally privi-
leged, see Restatement (Second) of Torts, 125(a), and the
United States would be entitled to assert the privilege in its
own defense. See supra pp. 11-15; Restatement (Second) of
Agency, 217(a)(iii).5
III
III
CONCLUSION
CONCLUSION
As the challenged conduct of all three Deputy United
States Marshals was privileged, summary judgment was properly
entered for the United States.
Affirmed. The parties shall bear their own costs.
Affirmed. The parties shall bear their own costs.
- Concurring Opinion Follows -
5Nevertheless, given the many uncontrolled ramps leading onto and
off the "information highway," Judge Bownes' wise counsel clearly
offers law enforcement agencies the best means of avoiding recurrences
of the insufficiently explained wrong done in this case. As my
brother cautions, all law enforcement officers whether directly
involved in effecting an arrest or simply in gathering and forwarding
information for use by the arresting officers should exercise the
high degree of care commensurate with the seriousness of their mis-
sion.
20
BOWNES, Senior Circuit Judge, concurring in the
BOWNES, Senior Circuit Judge
judgment. I agree with the judgment mainly because there was
an improbably close match between the information provided by
the plaintiff and the detailed information in the arrest
packet. Given this level of specificity and similarity, I
must conclude that it would be entirely unreasonable for a
finder-of-fact to posit liability against the government. It
was not the government which was culpable but the impostor
who framed the plaintiff some fifteen years before the ar-
rest.
I write separately, however, to emphasize that the
Restatement principles underlying our decision should not be
applied mechanically where multiple government actors are
engaged in collective action. In my view, it would be a
mistake to treat the New York and Puerto Rico marshals piece-
meal, as isolated actors rather than as co-agents of a common
principal. Under the right circumstances, co-agents may have
a duty to exchange certain information; where there is such a
duty, the reasonableness of a given act -- and the princi-
pal's liability for that act -- should be judged in light of
what the actor knew or should have known, assuming the rea-
sonable conduct of other concerned actors. This concept of
imputed knowledge seems consistent with agency and vicarious
liability principles.
20
The failings of the piecemeal approach can be
illustrated using the facts of this case. A piece of infor-
mation may mean little in the abstract to the person who
holds it, but might be decisive to another actor in context.
In this case, a photograph remained inert in Deputy Rodri-
guez's file; had it been forwarded to the Puerto Rico mar-
shals in the field, it would have prevented the plaintiff's
arrest. Although I agree with my brother that, in light of
the specificity of the information in her arrest packet,
Deputy Rodriguez had no reason to fear that the wrong person
might be arrested, the opinion nevertheless obscures the
government's one regrettable omission. After all, the Puerto
Rico marshals saw fit to request the photograph; and the
United States has never explained why it was not timely sent.
I doubt that common law principles either dictate a
piecemeal approach, or foreclose a more integrated view of
collective action. Indeed, my brother's opinion momentarily
adopts an integrated view when it rejects the instigation
claim against Deputy Rodriguez. See ante at 18 ("The arrest
packet Deputy Rodriguez forwarded to Puerto Rico . . .
matched almost precisely the personal and family information
gathered on plaintiff Rodriguez in 1990."). This correspon-
dence matters only if Deputy Rodriguez is imputed with the
21
knowledge of information that was gathered solely by the
Puerto Rico marshals.
In sum, I have no quarrel with the bulk of my
brother's scholarly opinion. I merely wish to raise a word
of caution against judging co-agents of a common principal as
isolated actors; their actions should be assessed as of one
piece.
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