18-1103-cv
Hernandez v. United States
Hernandez v. United States
No. 18‐1103‐cv
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2018
(Argued: April 18, 2019 Decided & Amended: September 17, 2019)
Docket No. 18‐1103‐cv
LUIS HERNANDEZ,
Plaintiff‐Appellant,
v.
UNITED STATES OF AMERICA AND CITY OF NEW YORK,
Defendants‐Appellees.*
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
Before:
WESLEY and CHIN, Circuit Judges, and Kaplan, District Judge.†
* The Clerk of the Court is directed to amend the caption to conform to the above.
† Judge Lewis A. Kaplan, of the United States District Court for the Southern
District of New York, sitting by designation.
Appeal from a judgment of the United States District Court for the
Southern District of New York (Swain, J.) dismissing, pursuant to Federal Rule of
Civil Procedure 12(b)(6), plaintiff‐appellantʹs claims that he was wrongfully
detained by local authorities pursuant to a federal immigration detainer.
Plaintiff‐appellant is a U.S. citizen who could not have been the subject of a
removal order, and he contends that the United States and the City of New York
violated his rights. The district court concluded that plaintiff‐appellant failed to
plausibly allege claims upon which relief could be granted.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
JEFFREY A. ROTHMAN, Law Office of Jeffrey A. Rothman,
New York, New York, for Plaintiff‐Appellant.
BRANDON D. WATERMAN, Assistant United States
Attorney (Christopher Connolly, Assistant United
States Attorney, on the brief), for Geoffrey S.
Berman, United States Attorney for the Southern
District of New York, New York, New York, for
Defendant‐Appellee United States of America.
ERIC LEE, Assistant Corporation Counsel (Richard
Dearing, Executive Assistant Corporation
Counsel, on the brief), for Georgia M. Pestana,
Acting Corporation Counsel of the City of New
York, New York, New York, for Defendant‐Appellee
City of New York.
2
Omar C. Jadwat, Cody H. Wofsy, and Spencer E.
Amdur, American Civil Liberties Union, San
Francisco, California and New York, New York;
Christopher Dunn, Antony Gemmell, Amy
Belsher, New York Civil Liberties Union
Foundation, New York, New York; Mark
Fleming, National Immigrant Justice Center,
Chicago, Illinois, for Amici Curae The American
Civil Liberties Union, New York Civil Liberties
Union, and National Immigrant Justice Center.
___________
CHIN, Circuit Judge:
On September 27, 2013, plaintiff‐appellant Luis Hernandez was
arrested in Manhattan and charged with public lewdness, a misdemeanor. The
same day, while he was being processed through the New York City Criminal
Court system, the United States Department of Homeland Security (ʺDHSʺ)
lodged an immigration detainer against him, asserting that he was the subject of
an order of removal. Hernandez, however, was born in Brooklyn, and as a U.S.
citizen he could not have been the subject of a removal order. When DHS
realized its error, it withdrew the detainer. In the meantime, Hernandez had
been in custody for four days; he was not released until the detainer was
withdrawn.
3
Hernandez brought this action below against defendants‐appellants
United States (the ʺGovernmentʺ) and the City of New York (the ʺCityʺ), as well
as certain individual federal officers, seeking damages for his wrongful
detention. Hernandez alleges that the Government was liable under the Federal
Torts Claims Act (the ʺFTCAʺ), 28 U.S.C. § 1346 et seq., for (1) false arrest and
false imprisonment; (2) abuse of process; (3) violation of his due process rights
under the New York Constitution; and (4) negligence. Hernandez also alleges
that the City was liable under 42 U.S.C. § 1983 pursuant to Monell v. Department
of Social Services, 436 U.S. 658 (1978). The Government and the City moved to
dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). The
district court granted the Rule 12(b)(6) motions and denied Hernandez leave to
file a further amended complaint. Hernandez appeals.1
We AFFIRM in part, VACATE in part, and REMAND for further
proceedings consistent with this opinion.
1
Hernandez also asserted constitutional claims against federal immigration
officers, including DHS Officer W. Outlaw and unidentified DHS officers. The district
court dismissed these claims. As Hernandez does not appeal the dismissal of these
claims, they are not before us.
4
STATEMENT OF THE CASE
I. The Facts
For purposes of this appeal, we take as true the facts set forth in the
second amended complaint (the ʺComplaintʺ). See Garcia v. Does, 779 F.3d 84, 88
(2d Cir. 2015).
Hernandez is a U.S. citizen who was born in Brooklyn on July 28,
1974. On Friday, September 27, 2013, he was arrested and charged with public
lewdness, a misdemeanor. The same day, as he was being processed through the
New York City Criminal Court system, DHS Officer Outlaw lodged an
ʺImmigration Detainer ‐ Notice of Actionʺ with the City against Hernandez. J.
Appʹx at 12. 2 The detainer identified the ʺalienʺ as ʺHernandez‐Martinez, Luis
Enrique,ʺ with a date of birth of July 28, 1974, and with a nationality of
ʺHonduras.ʺ Id. at 32; see id. at 30‐31. The detainer requested that the New York
City Department of Corrections (ʺDOCʺ) ʺ[m]aintain custody of [Hernandez] for
a period not to exceed 48 hours, excluding Saturdays, Sundays, and holidays,
2 The record is not clear how Outlaw determined that Hernandez was in New
York state custody and why he believed Hernandez was the subject of an order of
removal.
5
beyond the time when [Hernandez] would have otherwise been released from
[DOC] custody to allow DHS to take custody of [Hernandez].ʺ J. Appʹx at 32.
At Hernandezʹs arraignment, the Assistant District Attorney (the
ʺADAʺ) initially recommended three days of community service on a plea to the
charge. The judge, however, responded: ʺYou canʹt ask for community service.
He has an [Immigration and Customs Enforcement (ʺICEʺ)] detainer.ʺ J. Appʹx at
13. The ADA then recommended five days of jail and, ʺ[g]iven the ICE detainer,
[the ADA] request[ed] that $1 bail be set.ʺ J. Appʹx at 13. Because of the detainer,
ʺbail was set at the nominal amount of $1.00ʺ so that Hernandez could accrue
ʺtime credit towards any eventual sentence he might . . . receiv[e].ʺ J. Appʹx at
12.
While in custody, Hernandez told various DOC staff members,
including a social worker, two corrections officers, and a doctor, that he was a
U.S. citizen. Each staff member told Hernandez that he or she could not help
him. On Tuesday, October 1, 2013, Outlaw issued a second ʺImmigration
Detainer ‐ Notice of Action,ʺ instructing DOC to cancel the September 27, 2013
detainer. The securing order indicated that Hernandezʹs bail was paid on
October 1, 2013, after the detainer was lifted. Hernandez did not pay the bail
6
himself. The bail was ʺdonatedʺ by someone at DOC in accordance with
customary practice; payment of the $1.00 bail permits a detainee in these
circumstances to be released when there are no longer any detainers in place ‐‐
release is ʺautomaticʺ upon payment of the nominal bail. Id. at 15‐16. Hernandez
was released from custody the same day.
II. Proceedings Below
On August 3, 2016, Hernandez brought this action. On December
14, 2016, Hernandez filed the Complaint. Hernandez asserted claims against the
Government under the FTCA for (1) false arrest and false imprisonment, (2)
abuse of process, (3) violation of due process under the New York Constitution,
and (4) negligence. Hernandez also asserted claims against the City under 42
U.S.C. § 1983 for maintaining a policy of acceding to federal immigration
detainers (even when detention is not appropriate) and failing to train its
employees on handling immigration detainers.
On February 20, 2017, the Government and the City moved to
dismiss the Complaint for lack of standing pursuant to Rule 12(b)(1) and failure
to state a claim pursuant to Rule 12(b)(6). On March 13, 2018, the district court
issued an opinion and order dismissing the Complaint and denying leave to
7
amend. The court held that Hernandez sufficiently alleged standing but
dismissed all of Hernandezʹs causes of action against the Government for failure
to state a claim upon which relief can be granted. In addition, the district court
dismissed Hernandezʹs claim against the City as too generalized and conclusory.
Judgment was entered March 14, 2018. This appeal followed.
STANDARD OF REVIEW
We review a district courtʹs grant of a motion to dismiss under
Rule 12(b)(6) de novo. Bldg. Indus. Elec. Contractors Assʹn v. City of New York, 678
F.3d 184, 187 (2d Cir. 2012). ʺTo survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face.ʺ Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation
marks omitted). ʺ[W]e accept as true all factual allegations and draw from them
all reasonable inferences; but we are not required to credit conclusory allegations
or legal conclusions couched as factual allegations.ʺ Nielsen v. Rabin, 746 F.3d 58,
62 (2d Cir. 2014) (internal quotation marks omitted). ʺAccordingly, ʹthreadbare
recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.ʹʺ Id. (brackets omitted) (quoting Iqbal, 556 U.S. at 678).
8
DISCUSSION
On appeal, Hernandez argues that the district court erred in
dismissing his tort claims under the FTCA against the Government and his
§ 1983 claim against the City. We hold that the district court erred as to
Hernandezʹs false arrest and false imprisonment claim against the Government
and as to his official policy claim against the City but properly dismissed the
remaining claims.
I. Claims against the Government
Under the FTCA, Congress ʺwaived the sovereign immunity of the
United States for certain torts committed by federal employees.ʺ F.D.I.C. v.
Meyer, 510 U.S. 471, 475 (1994); see 28 U.S.C. § 1346(b). ʺ[T]o be actionable under
[the FTCA], a claim must allege, inter alia, that the United States ʹwould be liable
to the claimantʹ as ʹa private personʹ ʹin accordance with the law of the place
where the act or omission occurred.ʹʺ Id. at 477 (quoting § 1346(b)). ʺ[T]he source
of substantive liability under the FTCAʺ is the ʺlaw of the State.ʺ Id. at 478. We
therefore look to New York law.
Hernandez asserts claims under the FTCA against the Government
for: (1) false arrest and imprisonment; (2) abuse of process; (3) violation of the
9
due process clause of the New York Constitution; and (4) negligence. We
address each claim in turn.
A. False Arrest and Imprisonment
Under New York law, the elements of a false arrest and false
imprisonment claim are: ʺ(1) the defendant intended to confine the plaintiff, (2)
the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to
the confinement and (4) the confinement was not otherwise privileged.ʺ
McGowan v. United States, 825 F.3d 118, 126 (2d Cir. 2016) (per curiam) (brackets
and internal quotation marks omitted); see Smith v. Cty. of Nassau, 34 N.Y.2d 18,
22 (1974) (listing same elements for false arrest as false imprisonment).3 ʺFor
purposes of the privilege element of a false arrest and imprisonment claim, an act
of confinement is privileged if it stems from a lawful arrest supported by
probable cause.ʺ De Lourdes Torres v. Jones, 26 N.Y.3d 742, 759 (2016); accord
Marshall v. Sullivan, 105 F.3d 47, 50 (2d Cir. 1996). Officers have probable cause
when ʺthey have knowledge or reasonably trustworthy information of facts and
circumstances that are sufficient to warrant a person of reasonable caution in the
3 Although false arrest and false imprisonment are sometimes treated as different
torts, the Complaint asserts them as one claim, the parties treat them as one claim, and
the elements are substantially the same. See Burgio v. Ince, 913 N.Y.S.2d 864, 865 (4th
Depʹt 2010) (listing same elements for false arrest and false imprisonment).
10
belief that the person to be arrested has committed or is committing a crime.ʺ
Posr v. Court Officer Shield No. 207, 180 F.3d 409, 414 (2d Cir. 1999) (internal
quotation marks omitted).
At issue here are the first and fourth elements: whether Hernandez
sufficiently pleaded that the Government intended to confine him and whether
this confinement was not otherwise privileged.
1. Intent
The Complaint adequately alleges that the Government intended to
confine Hernandez. ʺTo prove intent, a plaintiff must show that the defendant
either: (a) confined or intended to confine the plaintiff or (b) affirmatively
procured or instigated the plaintiffsʹ arrest.ʺ King v. Crossland Sav. Bank, 111 F.3d
251, 255 (2d Cir. 1997). Here, the Government issued the detainer precisely
because ICE wanted to continue Hernandezʹs confinement and intended for him
to be detained, even if he were otherwise to be released. See J. Appʹx at 32
(requesting that DOC ʺ[m]aintain custody of [Hernandez] for a period not to
exceed 48 hours,ʺ excluding Saturdays, Sundays, and holidays (emphasis
removed)); Morales v. Chadbourne, 793 F.3d 208, 215‐16 (1st Cir. 2015) (ʺ[T]he sole
purpose of a detainer is to request the continued detention of an alien so that ICE
11
officials may assume custody of that alien and investigate whether to initiate
removal proceedings against her.ʺ).4 The Complaint, moreover, plausibly alleges
that the only reason Hernandez was not released at his arraignment was the
issuance of the detainer. For example, the Complaint alleges that ʺ[b]ecause of
the wrongfully issued detainer, [Hernandez] was unable to be released from
custody at his arraignment, which would have otherwise occurred.ʺ J. Appʹx at
12; accord id. (ʺBecause of the wrongfully issued detainer, [Hernandez] was also
ineligible at his arraignment for a plea bargain that would otherwise have been
available to him.ʺ).
The Government argues that the City, and not the Government,
confined Hernandez because of his lawful arrest, the imposition of bail, and his
failure to tender the bail. Hernandez, however, alleged that the imposition of
4 Morales involved a U.S. citizen who was arrested on unrelated state criminal
charges and then continued in custody because of an immigration detainer lodged
against her. 793 F.3d at 212‐13. The plaintiff brought claims under Bivens v. Six
Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), against the ICE
agent who issued the detainer and his supervisors. Both the district court and the First
Circuit permitted the plaintiff to proceed with her claims. Id. at 211, 223; see also Galarza
v. Szalczyk, 745 F.3d 634, 636 (3d Cir. 2014) (involving a U.S. citizen arrested on
unrelated state criminal charges but held after posting bail pursuant to an immigration
detainer); Vazquez‐Mentado v. Buitron, No. 5:12‐CV‐0797 LEK/ATB, 2013 WL 2318636, at
*7 (N.D.N.Y. May 28, 2013) (finding that officers lacked probable cause to arrest
plaintiff, a U.S. citizen who produced a New York State driverʹs license, where officers
only had a detainer for an alien of a similar name and the same birthday as plaintiff).
12
bail and his failure to tender the bail were not the reasons the City kept him in
custody. According to the Complaint, ʺ[h]ad there not have been a detainer
lodged against [Hernandez] at his arraignment, he would not have received the
$1.00 bail, but instead would have been released on his own recognizance.ʺ J.
Appʹx at 16. This is clear from the arraignment transcript, which is quoted in the
Complaint. The ADA originally sought only three days of community service
but had to recommend five daysʹ jail because of the detainer. Then, ʺ[g]iven the
ICE detainer, [the ADA] request[ed] that $1 bail be set.ʺ J. Appʹx at 13.
Moreover, the Complaint alleges that bail was set at a ʺnominal
amountʺ as part of a ʺroutine practiceʺ so that Hernandez could ʺreceive time
credit towards any eventual sentence he . . . might receive.ʺ J. Appʹx at 12. And
once the detainer was canceled, it was ʺautomaticʺ that a donation by a DOC
employee would pay Hernandezʹs bail and he would be released. J. Appʹx at 15.
Hence, the Complaint plausibly alleges that bail was imposed only because of the
detainer and that, even if Hernandez had paid the bail, it is a reasonable
inference that he would not have been released as long as the detainer was in
place.
13
A law enforcement officer is ʺresponsible for the natural
consequences of his actions.ʺ Malley v. Briggs, 475 U.S. 335, 344 n.7 (1986)
(quoting Monroe v. Pape, 365 U.S. 167, 187 (1961)). The natural consequences of
Outlaw issuing the detainer was that Hernandez would be detained for up to 48
hours (or longer, given the intervening weekend). See Morales, 793 F.3d at 218
(ʺThe natural consequences of [the ICE agent] issuing the detainer was that [the
subject of the detainer] would be detained up to 48 hours.ʺ). The Government
cannot escape responsibility by shifting the blame to the City for keeping
Hernandez in custody.
2. Privilege
As the Government concedes, DHS must have probable cause to
lodge an immigration detainer. Id. at 217. A detainer is distinct from the initial
arrest, but it results in the detention ‐‐ or further detention ‐‐ of an individual.
Consequently, as the individual is maintained in custody for a new purpose after
he was otherwise eligible to be released, he is subjected to a new seizure that
must be supported by probable cause. Id.; see also Illinois v. Caballes, 543 U.S. 405,
407‐08 (2005); Arizona v. United States, 567 U.S. 387, 413 (2012) (ʺ[D]elay[ing] the
release of some detainees for no reason other than to verify their immigration
14
status . . . would raise constitutional concerns.ʺ). Moreover, because it is a
constitutional right to be free from an unreasonable seizure, see U.S. Const.
amend. IV, a reasonable officer must act diligently before lodging a detainer
against an individual and depriving that individual of his or her freedom. See
Dunaway v. New York, 442 U.S. 200, 214‐15 (1979) (ʺNothing is more clear than
that the Fourth Amendment was meant to prevent wholesale intrusions upon the
personal security of our citizenry, whether these intrusions be termed ʹarrestsʹ or
ʹinvestigatory detentions.ʹʺ (quoting Davis v. Mississippi, 394 U.S. 721, 726‐27
(1969)).
Here, the Complaint plausibly alleges that the Government lacked
probable cause to lodge the detainer, and therefore Hernandezʹs confinement
was not otherwise privileged. The Complaint alleges that the Government
lacked probable cause because Hernandez was the wrong person: he was not of
Honduran nationality, his middle name was not ʺEnrique,ʺ his last name was not
ʺHernandez‐Martinez,ʺ his name therefore did not match the name on the
detainer, and DHS failed to inquire into whether it was issuing a detainer for the
right person. We agree that these allegations are sufficient to plausibly allege a
lack of probable cause.
15
First, the detainer was issued for a person with a different name. In
some circumstances, that fact alone is sufficient to vitiate probable case. See, e.g.,
Vazquez‐Mentado, 2013 WL 2318636, at *4 (finding no precedent that an officer in
search of ʺJohn Doe, aged forty years and two months, immediately has probable
cause to arrest John Dowe, also aged forty years and two months, after seeing
(and without verifying) Doweʹs accurate, state‐issued identificationʺ); Montoya v.
N.M. Depʹt of Pub. Safety, No. CV 09‐1068 BB/RLP, 2011 WL 13286159, at *7
(D.N.M. Jan. 5, 2011) (ʺA jury could find that [a] . . . name discrepancy would
have vitiated probable cause.ʺ).
Second, because the names did not match, further inquiry was
required. Given the discrepancy in names, a reasonable officer would have
inquired further into whether Hernandez was in fact the person DHS wanted to
detain. Indeed, the applicable immigration statute provides that to issue a
detainer, immigration officers must have ʺreason to believeʺ that an individual is
present in the United States unlawfully. 8 U.S.C. § 1357(d)(1).
Third, the Complaint plausibly alleges that the Government failed to
conduct even a rudimentary inquiry into Hernandezʹs citizenship or identity.
Indeed, Hernandez has alleged that his citizenship was readily ascertainable, and
16
officers ʺmay not disregard facts tending to dissipate probable cause.ʺ United
States v. Pabon, 871 F.3d 164, 175 (2d Cir. 2017) (quoting Bigford v. Taylor, 834 F.2d
1213, 1218 (5th Cir. 1988)). For example, the Complaint alleges that the
Government could have verified that Hernandez was a U.S. citizen if it had
checked (1) its own records; (2) the DOC Inmate Lookup Service records, which
listed Hernandezʹs nativity as New York; or (3) Hernandezʹs rap sheet from the
New York Division of Criminal Justice Services. See Mitchell v. City of New York,
841 F.3d 72, 78 (2d Cir. 2016) (ʺ[T]he failure to make a further inquiry when a
reasonable person would have done so may be evidence of lack of probable
cause.ʺ (quoting Colon v. City of New York, 60 N.Y.2d 78, 82 (1983)); Manganiello v.
City of New York, 612 F.3d 149, 161 (2d Cir. 2010) (same); Kerman v. City of New
York, 374 F.3d 93, 99 (2d Cir. 2004) (ʺThe officer is not free to disregard plainly
exculpatory evidence.ʺ (internal quotation marks omitted)).5 Therefore,
Hernandez has sufficiently alleged that the Government lacked probable cause to
issue the detainer.
5 Hernandez alleged on information and belief that his rap sheet included his
citizenship. Indeed, an Internet search reveals that a New York State Division of
Criminal Justice Services rap sheet includes whether an individual is a U.S. citizen. See
The New York State Criminal History Record, N.Y. State Div. of Criminal Justice Services
(May 30, 2019), www.criminaljustice.ny.gov/ojis/documents/Rap‐Sheet‐Guide.pdf.
17
The Government argues that the similarity in surnames alone is
sufficient to establish probable cause because of the convention in Spanish‐
speaking cultures to shorten surnames composed of the fatherʹs and motherʹs
surnames to the first of the two surnames. Govʹt Br. at 4.
We reject the notion that the purported similarity between ʺLuis
Hernandezʺ and ʺLuis Enrique Hernandez‐Martinezʺ is enough, without more,
to establish probable cause to deprive someone of his freedom. The
Governmentʹs argument that it has probable cause based on the similar names
ʺseems particularly rooted in the context of immigration enforcement and
concerns about the interchangeability of foreign names.ʺ Vazquez‐Mentado v.
Buitron, No. 5:12‐CV‐0797 LEK/ATB, 2013 WL 2318636, at *5 n.7 (N.D.N.Y. May
28, 2013). While names of foreign immigrants may be less familiar to some in the
United States and ʺdistinctions may therefore be more difficult to spot than
variations between certain European or Anglicized names (e.g., John/Jon,
Smith/Smyth, or Eric/Erik), a lack of cultural familiarity does not excuse
disregarding easily confirmable differences.ʺ Id. (internal citation omitted).
Indeed, ʺ[t]o hold otherwise would suggest that a lower standard of proof/lower
level of investigation might be necessary in the case of individuals with Latin or
18
otherwise non[‐]Anglo names, raising a host of constitutional concerns.ʺ Id.; cf.
United States v. Brignoni‐Ponce, 422 U.S. 873, 886 (1975) (ʺMexican descent . . .
alone [does not] justify . . . a reasonable belief that [petitioners] were aliens.ʺ).
ʺAllowing law enforcement officers to target people based solely on
characteristics such as ethnicity or national origin is to ʹcondone ethnic
harassment.ʺ Zuniga‐Perez v. Sessions, 897 F.3d 114, 127 (2d Cir. 2018) (quoting
Maldonado v. Holder, 763 F.3d 155, 172 (2d Cir. 2014) (Lynch, J., dissenting).
Even assuming that a reasonable agent knew of the naming
convention identified by the Government, the detainer still listed a middle name
for Hernandez‐Martinez (Enrique) whereas, there is nothing in the record to
suggest that Hernandez had a middle name. Additionally, ʺHernandezʺ is a
common surname. In fact, according to amici, it is the eleventh most common
surname in the United States and appears in at least 700 cases on Westlaw. See
Amicus Br. at 2. While ʺ[t]he concept of probable cause leaves room for
mistakes,ʺ there is only room if the ʺmistakes . . . could have been made by a
reasonable officer.ʺ Anderson v. Creighton, 483 U.S. 635, 661 (1987).
Accordingly, we conclude that no reasonable officer would have
issued the detainer in the circumstances alleged here, without conducting an
19
inquiry. And the complaint alleges facts from which one could conclude that a
reasonable inquiry would have revealed that Hernandez was a U.S. citizen who
could not have been subject to an immigration detainer. See BeVier v. Hucal, 806
F.2d 123, 128 (7th Cir. 1986) (holding that an ʺofficer may not close her or his eyes
to facts that would help clarify the circumstances of an arrestʺ).
There was discussion at oral argument to the effect that the dates of
birth were the same. We do not know that to be the case. The Complaint does
not allege that Hernandez had the same date of birth as Luis Enrique Hernandez‐
Martinez. And while the detainer has Hernandezʹs date of birth on it, the record
is unclear whether Outlaw used Hernandezʹs or Hernandez‐Martinezʹs date of
birth in filling out the detainer. A reasonable officer would not have issued the
detainer without an additional data point, such as a verified description of the
individual who was sought,6 the social security number of the individual who
6 See, e.g., Hill v. California, 401 U.S. 797, 803 (1971) (finding probable cause where
police had targeted individualʹs ʺaddress and a verified description,ʺ individual was
inside locked home of warrant target, and individual ʺfit the description of [the targeted
individual] received from various sourcesʺ); Bennett v. City of Yonkers, 859 F. Supp. 92,
92 (S.D.N.Y. 1994) (finding probable cause where plaintiffʹs name (Lorie Bennett)
differed from subject of arrest warrant (Larry Bennett), because plaintiff responded to
ʺLarryʺ ‐‐ which was phonetically similar to ʺLorieʺ ‐‐ and met description of subject of
arrest warrant); see also Martinez v. City of New York, No. 06 CIV. 5671 (WHP), 2008 WL
2566565, at *3 (S.D.N.Y. June 27, 2008), affʹd, 340 F. Appʹx 700 (2d Cir. 2009) (summary
order) (finding probable cause where officers ʺknew that an outstanding warrant
20
was sought,7 or fingerprint verification.8 This would seem particularly true in
the context of ʺthe situation facing [Outlaw] at the time,ʺ Hill, 401 U.S. at 804, that
is, additional verification was readily attainable because Hernandez was already
in police custody. See Morales, 793 F.3d at 218 (ʺArguably, it would be easier to
establish probable cause in the case of detainers, because immigration officers
existed for a man who lived in Manhattan with the same first name, last name, middle
initial and date of birth as [the plaintiff]ʺ and differences between the plaintiff and the
ʺphysical description contained in the [warrant] . . . were . . . too minor to preclude a
finding of probable causeʺ).
7 See, e.g., Mendoza v. U.S. Immig. & Customs Enfʹt, 849 F.3d 408, 417 (8th Cir. 2017)
(finding probable cause to issue detainer where plaintiffʹs name (Ramon Mendoza‐
Gallegos) partially matched targetʹs name (Ramon Mendoza‐Gutierrez), birthdate
perfectly matched targetʹs birthday, and social security number matched targetʹs but for
one digit); Morales v. Chadbourne, 235 F. Supp. 3d 388, 398 (D.R.I. 2017) (finding lack of
probable cause because, inter alia, ʺICE directed its agents to check . . . individualʹs social
security number if availableʺ in the federal database because social security numbers
are ʺunique for each individual and not name dependentʺ and agent failed to do so).
8 See, e.g., Perez‐Ramirez v. Norwood, 322 F. Supp. 3d 1169, 1172 (D. Kan. 2018)
(finding probable cause where detainer was ʺbased upon the pendency of removal
proceedings and upon a biometric confirmation through federal databases that showed he
lacked a lawful immigration statusʺ (emphasis added)); People v. Xirum, 993 N.Y.S.2d
627, 629 (Sup. Ct. 2014) (finding that DOC could detain defendant pursuant to detainer
issued after ʺICE confirmed by fingerprint matchʺ that defendant was target of removal
order). Moreover, it is at least plausible that ICE had Hernandez‐Martinezʹs
fingerprints because a final order of removal existed as to Hernandez‐Martinez. See 8
U.S.C. § 1357(f) (ʺ[T]he Commissioner shall provide for the fingerprinting and
photographing of each alien 14 years of age or older against whom a [removal]
proceeding is commenced . . . . Such fingerprints and photographs shall be made
available to Federal, State, and local law enforcement agencies, upon request.ʺ); 8 C.F.R.
§ 236.5 (same).
21
would have easier access to interview and obtain records from an individual
detained in criminal custody.ʺ).9
In a supplemental letter brief, the Government responded to the
failure‐to‐investigate argument by asserting that ʺin the absence of clear evidence
to the contrary, courts presume that [public officers] have properly discharged
their official duties,ʺ Govʹt Letter Br. at 3 (quoting United States v. Armstrong, 517
U.S. 456, 464 (1996), and that ʺ[t]he record here does not provide clear evidence
that government and City officials failed to act properly,ʺ Govʹt Letter Br. at 3‐4.
But we are on review of a motion to dismiss, and the standard is plausibility, not
ʺclear evidence.ʺ
Finally, the Government argues that ʺICE had probable cause to
issue the detainerʺ because the detainer form ʺreflects ICEʹs determination that
Hernandez was subject to ʹan order of deportation or removal from the United
States.ʹʺ Govʹt Letter Br. at 2 (quoting J. Appʹx at 32). This is an entirely circular
argument, as it amounts to the contention that ʺwe had probable cause to issue
the detainer because we said so.ʺ Moreover, the detainer did not show that ICE
9 We acknowledge that if the two individuals in fact had the same date of birth,
that would be a strong indication that they were the same person. But the point here is
that it is not clear whether the two individuals had the same date of birth.
22
had determined that Hernandez was subject to an order of removal; it showed
only that Hernandez‐Martinez was subject to a removal order.
Accordingly, we conclude that the district court erred in dismissing
Hernandezʹs false arrest and false imprisonment claims.
B. Abuse of Process
The district court dismissed Hernandezʹs abuse of process claim
because Hernandez failed to ʺplead sufficient facts to support an inference that
the Government had an improper purpose in casting [its] net so wide.ʺ J. Appʹx
at 75 (internal quotation marks and brackets omitted). We agree.
To prove abuse of process, plaintiff must show that the defendant
ʺ(1) employs regularly issued legal process to compel performance or
forbearance of some act (2) with intent to do harm without excuse of justification,
and (3) in order to obtain a collateral objective that is outside the legitimate ends
of the process.ʺ Savino v. City of New York, 331 F.3d 63, 76 (2d Cir. 2003). As to
the third prong of this test, ʺto state a claim for abuse of process, a plaintiff must
establish that the defendants had an improper purpose in instigating the actionʺ
and ʺthat they aimed to achieve a collateral purpose beyond or in addition to his
criminal prosecution.ʺ Id. at 77. ʺ[A] malicious motive alone . . . does not give
23
rise to a cause of action for abuse of process.ʺ Id. (internal quotation marks and
brackets omitted).
Here, Hernandez fails to allege an improper purpose. The
Complaint contains two allegations regarding Outlawʹs issuance of the detainer:
(1) he did so because of the ʺmere possibilityʺ that Hernandez was the target of
the removal order, and (2) he ʺdid not care . . . whether or not the wrong person
was detained pursuant to the detainer.ʺ J. Appʹx at 19. These allegations speak
to Outlawʹs motive ‐‐ rather than to the purpose of his actions ‐‐ and are thus
insufficient to state an abuse of process claim. See, e.g., Savino, 331 F.3d at 77
(allegations that defendants sought to retaliate against plaintiff insufficient to
state abuse of process claim). Accordingly, because Hernandez has failed to
allege that Outlaw ʺattempted to achieve any other collateral purpose beyond
[detaining a removable alien],ʺ Mitchell, 841 F.3d at 80, the district court properly
dismissed this claim.
C. Violation of the New York Constitution
Hernandez contends that the Government violated his due process
rights under the New York Constitution. See N.Y. Const. art. 1, § 6. The district
24
court dismissed this claim, holding that Hernandez could not bring such a claim
under the FTCA as a matter of law. We agree.
The FTCA ʺhas not waived [the Governmentʹs] sovereign immunity
with respect to claims that its employees have committed constitutional tortsʺ
under the federal constitution. Castro v. United States, 34 F.3d 106, 110 (2d Cir.
1994). Hernandez has not put forth any reason to distinguish in this respect
between a due process claim under the federal constitution and a due process
claim under a state constitution. Indeed, ʺNew York courts have interpreted the
due‐process guarantees of the New York Constitution and the United States
Constitution to be coextensive ‐‐ or assumed that they are,ʺ Oneida Indian Nation
of N.Y. v. Madison Cty., 665 F.3d 408, 427 n.13 (2d Cir. 2011), and it does not make
sense that Hernandez should be able to pursue a state due process claim when he
cannot pursue a federal due process claim. In fact, several district courts in his
circuit have held that plaintiffs cannot assert FTCA claims for violations of the
New York Constitution. See, e.g., Evans v. Solomon, No. 06‐CV‐3284 SLT LB, 2011
WL 609806, at *2 (E.D.N.Y. Feb. 15, 2011) (dismissing state constitutional tort
claim brought under the FTCA against a federal officer); Li v. Aponte, No. 05 CIV.
6237 (NRB), 2008 WL 4308127, at *11 (S.D.N.Y. Sept. 16, 2008) (dismissing state
25
constitutional claim brought under FTCA because court was ʺnot persuaded that
the New York state courts would recognize an implied right of action under the
New York constitution against a federal officer.ʺ). We agree with this conclusion.
Even if state constitutional tort claims are cognizable under the
FTCA, Hernandez has still failed to state such a claim. Although the language of
the New York Constitution is slightly different from the language of the federal
constitution,10 ʺ[s]tate involvement in the objected to activityʺ is required for a
due process claim under the New York Constitution. Sharrock v. Dell Buick‐
Cadillac, Inc., 45 N.Y.2d 152, 160 (1978). Indeed, the New York Court of Appeals
has recognized that ʺthere can be no question that [the drafters] intended the
State Constitution to govern the rights of citizens with respect to their government
and not the rights of private individuals against private individuals.ʺ SHAD All.
v. Smith Haven Mall, 66 N.Y.2d 496, 503 (1985) (emphasis added) (discussing state
action requirement in the context of the New York Constitutionʹs free speech
clause).
10 Compare U.S. Const. amend XIV (ʺ[N]or shall any State deprive any person of life,
liberty, or property, without due process of law.ʺ), with N.Y. Const. art. I., § 6 (ʺNo
person shall be deprived of life, liberty or property without due process of law.ʺ).
26
Here, Hernandez argues that his due process rights were violated
because Outlaw lodged a detainer against him. Outlaw, however, is only a
federal actor ‐‐ not a state actor. As he was acting under the color of federal law
and not state law, the claim for violation of the New York Constitution fails. See
Hightower v. United States, 205 F. Supp. 2d 146, 154 n.4 (S.D.N.Y. 2002) (ʺNew
York State Constitution only permits suits against state actors acting under color
of state law, and not against the federal government or federal employees acting
under federal law.ʺ); cf. Appolon v. United States, No. 16‐CV‐2275 SJ/SMG, 2017
WL 3994925, at *15 (E.D.N.Y. Sept. 6, 2017) (analyzing claim under Georgiaʹs
similarly‐worded due process clause and concluding that ʺ[i]t is clear . . . that a
claim for a due process violation is not cognizable under the FTCA); id.
(ʺGeorgiaʹs Constitution . . . stat[es] that ʹ[n]o person shall be deprived of life,
liberty, or property except by due process of law.ʹʺ (quoting Ga. Const. art. 1, § 1,
¶ 1)).
Accordingly, we conclude that the district court properly dismissed
Hernandezʹs due process claim under the New York Constitution.
27
D. Negligence
Hernandez alleges that Government is liable for negligence under
the FTCA because it ʺbreached [its] duty to [Hernandez],ʺ and its actions ʺwere a
direct and proximate causeʺ of Hernandezʹs injuries. J. Appʹx at 22. This claim
also fails as a matter of law.
As Hernandez concedes, ʺunder New York law, a plaintiff may not
recover under general negligence principles for a claim that law enforcement
officers failed to exercise the appropriate degree of care in effecting an arrest or
initiating a prosecution.ʺ Watson v. United States, 865 F.3d 123, 134 (2d Cir. 2017)
(brackets omitted) (quoting Bernard v. United States, 25 F.3d 98, 102 (2d Cir.
1994)). Hernandez attempts to circumvent Watson by arguing that we ʺerredʺ in
this decision and that it should now be ʺrectified.ʺ Appellantʹs Br. at 38. We see
no error in Watson, and are, in any event, bound by our precedent. See Lotes Co.
v. Hon Hai Precision Indus. Co., 753 F.3d 395, 405 (2d Cir. 2014). Hernandezʹs
claim, therefore, is foreclosed as a matter of law, and the district court properly
dismissed this claim.
28
II. Claims against the City
Hernandez sued the City under 42 U.S.C. § 1983, seeking to hold it
liable for the deprivation of his rights under the Fourth and Fourteenth
Amendments pursuant to Monell v. Depʹt of Soc. Servs. of City of New York, 436
U.S. 658 (1978), alleging that (1) the City has an official policy of blindly honoring
federal immigration detainers, that is, of treating federal immigration detainers
as ʺmandatoryʺ and honoring them without ʺengaging in any inquiry,ʺ ʺeven
when put on explicit notice that the detainer was issued in error,ʺ J. Appʹx at 24;
and (2) the City failed to train its officers on the proper handling of immigration
detainers.
A. Applicable Law
Under § 1983, ʺ[e]very person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be
subjected, any citizen of the United States . . . to the deprivation of any rights,
privileges, or immunities secured by the Constitution . . . shall be liable to the
party injured in an action at law.ʺ 42 U.S.C. § 1983. Municipalities are ʺnot
vicariously liable under § 1983 for their employeesʹ actions.ʺ Connick v.
Thompson, 563 U.S. 51, 60 (2011). A municipality, however, may be liable under
29
§ 1983 if the plaintiffʹs injury was caused by ʺaction pursuant to official
municipal policy.ʺ Id. at 60‐61. ʺOfficial municipal policy includes the decisions
of a governmentʹs lawmakers, the acts of its policymaking officials, and practices
so persistent and widespread as to practically have the force of law.ʺ Id. at 61.
In ʺlimited circumstances,ʺ a municipality may also be held liable for
its failure to train its employees. Id. To state a failure‐to‐train claim, a plaintiff
must allege that ʺa municipalityʹs failure to train its employees in a relevant
respect . . . amount[ed] to deliberate indifference to the rights of persons with
whom the untrained employees come into contact.ʺ Id. (internal quotation marks
and brackets omitted). ʺDeliberate indifference is a stringent standard of fault.ʺ
Id. (brackets omitted). A municipality is deliberately indifferent where it fails to
act when it has ʺactual or constructive notice,ʺ generally from ʺ[a] pattern of
similar constitutional violations by untrained employees,ʺ that its training
program is deficient.ʺ Id. A plaintiff, therefore, ʺmust demonstrate that the
municipal action was taken with deliberate indifference as to its known or
obvious consequences. A showing of simple or even heightened negligence will
not suffice.ʺ Outlaw v. City of Hartford, 884 F.3d 351, 373 (2d Cir. 2018) (internal
quotations marks and alterations omitted).
30
In addition, ʺfor liability to attach in this circumstance the identified
deficiency in a cityʹs training program must be closely related to the ultimate
injury.ʺ City of Canton v. Harris, 489 U.S. 378, 391 (1989). We focus on the
ʺadequacy of the training program in relation to the tasks the particular officers
must performʺ and ʺ[t]hat a particular officer may be unsatisfactorily trained will
not alone suffice to fasten liability on the city, for the officerʹs shortcomings may
have resulted from factors other than a faulty training program.ʺ Id. at 390‐91.
Allegations that the injury could have been avoided with ʺbetter or more
trainingʺ are not sufficient. Id. at 391. The question is whether ʺthe injury
[would] have been avoided had the employee been trained under a program that
was not deficient in the identified respect.ʺ Id.
Finally, a municipality may only be liable ʺwhere its policies are the
moving force behind the constitutional violation.ʺ Connick, 563 U.S. at 61
(internal quotation marks omitted). Therefore, ʺthe plaintiff must show a direct
causal link between a municipal policy or custom and the alleged constitutional
deprivation.ʺ Id.
31
B. Application
1. Official Policy
The Complaint alleges that the City has an official policy of blindly
honoring federal immigration detainers. The City argues that such a policy is not
adequately alleged in the Complaint. We disagree. The Complaint alleges that
the Cityʹs policy of acceding to federal immigration detainers was pursuant to
the decisions of the Cityʹs lawmakers; namely, their passage of Local Law 22 of
2013. Moreover, the Complaint alleges that there was a practice of ʺtreating
federal immigration detainers as though they were mandatory,ʺ and honoring
them without inquiry even when circumstances suggested inquiry was
warranted. J. Appʹx at 23.11
At issue here then is whether this alleged policy caused Hernandezʹs
detention. The City argues that it is not liable for Hernandezʹs detention because
(1) his detention was due to his failure to post bail; and (2) the DOC could rely on
the immigration detainer.
11 We note that while federal regulations state that when DHS issues a detainer an
ʺagency shall maintain custody of the alien,ʺ 8 C.F.R. § 287.7(d), courts have
nevertheless interpreted this language to mean that the honoring of detainers ʺ[is] not
mandatory.ʺ Galarza, 745 F.3d at 642.
32
a. Failure to post bail
The City argues that it did not violate Hernandezʹs constitutional
rights because Hernandez was detained for his failure to post bail. As discussed
above, however, the Complaint adequately alleges that but for the detainer,
Hernandez would not have been released, even if he had posted bail. See, e.g., J.
Appʹx at 15 (ʺThe release from custody of an inmate with $1.00 in nominal bail is
automatic in circumstances . . . where there are no longer any detainers in place
. . . .ʺ); see also Mercado v. Dallas County, 229 F. Supp. 3d 501, 518‐19 (N.D. Tex.
2017), abrogated on other grounds by City of El Cenizo v. Texas, 890 F.3d 164 (5th Cir.
2018) (concluding that allegations of complaint plausibly alleged that ʺDallas
County had a widespread and widely known practice of refusing to release on
bond pretrial detainees with immigration holds, that bond was set for each of the
plaintiffs, and that, despite bond being set, each plaintiff was denied pretrial
release on bond either because (i) he attempted to post bond and it was refused,
or (ii) any attempt to post bond would have been futile due to Dallas Countyʹs
widely known practice of refusing to release on bond pretrial detainees who
were subject to immigration holdsʺ).
33
Accordingly, we conclude that the Complaint plausibly alleges that
but for the detainer, Hernandez would have been released, and that the City
confined him not for his failure to post bail but because of the detainer.
b. Reliance on the immigration detainer
The City also argues that, even if the City detained Hernandez only
because of the detainer, the Complaint fails to state a viable Monell claim because
ʺ[m]unicipal law enforcement officers are permitted to detain a suspect at the
request of federal immigration agents who have probable cause to believe that
the suspect is removable.ʺ City Br. at 17. Moreover, the City argues that there
was probable cause here because the detainer reflected the existence of an order
of removal. We are not persuaded.
The Complaint adequately alleges that the City lacked probable
cause to rely on the detainer. First, the Complaint alleges that the name on the
detainer (Luis Enrique Hernandez‐Martinez) did not match Hernandezʹs name
(Luis Hernandez). As explained above, the name discrepancy alone is arguably
enough to vitiate probable cause, and the Complaint plausibly alleges that a
reasonable officer, whether a court officer, corrections officer, or other City
official, would have conducted further inquiry before continuing to detain
34
Hernandez. See Manganiello, 612 F.3d at 161; Vazquez‐Mentado, 2013 WL 2318636,
at *4.
Second, the City could not blindly rely on the federal detainer in the
circumstances here. The Complaint alleges that Hernandez told multiple DOC
employees that he was a U.S. citizen, and the City could have easily verified his
citizenship by checking (1) the DOC Inmate Lookup Service, which listed his
nativity as ʺNew York,ʺ or (2) his rap sheet, which apparently noted that he was
a U.S. citizen. J. Appʹx at 17‐18, 62; see Pabon, 871 F.3d at 175; Kerman, 374 F.3d at
99. While we do not hold that an officer is required to investigate every claim of
innocence, the City had an independent obligation to verify Hernandezʹs
citizenship in the circumstances here. Where there is a discrepancy in the names
and an individualʹs citizenship can be verified with minimal effort, the City is not
free to ignore a claim of innocence. See Kuehl v. Burtis, 173 F.3d 646, 650 (8th Cir.
1999) (ʺAn officer need not conduct a mini‐trial before making an arrest, but
probable cause does not exist when a minimal further investigation would have
exonerated the suspect.ʺ (internal quotation marks and citations omitted)); see
also Fairley v. Luman, 281 F.3d 913, 918 (9th Cir. 2002) (ʺIn light of the importance
of [defendantʹs] liberty interest, the significant risk of deprivation of that interest
35
through the Cityʹs warrant procedures, and the minimum burden to the City of
instituting readily available procedures for decreasing the risk of erroneous
detention, the procedures afforded by the City to [defendant] failed to provide
him due process under the Fourteenth Amendment.ʺ).
The City argues that ʺunder the collective knowledge doctrine, a
federal immigration officerʹs knowledge of probable cause ʹmay be imputed to
local officials.ʹʺ City Br. at 19 (quoting El Cenizo, 890 F.3d at 187). It argues that
Outlawʹs knowledge should be imputed to the local officials. There can be no
collective knowledge, however, if the initiating officer lacked probable cause ‐‐
i.e., in that event no other officer can rely on the information of the initiating
officer. See, e.g., United States v. Hensley, 469 U.S. 221, 232 (1985) (ʺIf the flyer has
been issued in the absence of a reasonable suspicion, then a stop in the objective
reliance upon it violates the Fourth Amendment.ʺ); Whiteley v. Warden, Wyo. State
Penitentiary, 401 U.S. 560, 568 (1971) (concluding that the Fourth Amendment
was violated where local police conducted a search pursuant to a warrant
obtained by the county sheriff who lacked probable cause).
The collective knowledge doctrine does not help the City because, as
the Complaint plausibly alleges, Outlaw ‐‐ the officer who instigated
36
Hernandezʹs detention ‐‐ lacked probable cause to issue the detainer and he
failed to conduct an inquiry when a reasonable officer in the circumstances
would have inquired. See, e.g., Manganiello, 612 F.3d at 161; Vazquez‐Mentado,
2013 WL 2318636, at *4.
Accordingly, as the Complaint plausibly alleges that the City
refused to release Hernandez because of its policy, and that the City would have
seen that Hernandez was not subject to an immigration detainer if it had
checked, Hernandez plausibly alleges that City policy indeed caused the
deprivation of his rights. See Jones v. Town of E. Haven, 691 F.3d 72, 80 (2d Cir.
2012) (municipality may be liable for actions of its employees if ʺthe deprivation
of the plaintiffʹs rights under federal law is caused by a governmental custom,
policy, or usage of the municipalityʺ (citing Monell, 436 U.S. at 690‐91)).
2. Failure to train
The Complaint alleges that the City failed to train DOC staff (1) ʺon
the procedures, practices, policies, laws, rules, and/or directives governing
immigration holdsʺ; (2) ʺto check the nativity of inmates as to whom purported
immigration detainers are lodgedʺ; and (3) ʺon the procedures, practices, policies,
laws, rules, and/or directives governing the effect, if any, an immigration
37
detainer has on an inmate and an inmateʹs detention more generally and/or said
inmateʹs right to be released from detention.ʺ J. Appʹx at 25. The district court
dismissed this claim because the Complaint failed to allege that these failures
were endemic or that a pattern of similar constitutional violations existed. We
conclude that Hernandez failed to sufficiently plead a failure‐to‐train claim,
although on different grounds.
As noted above, to plead a failure‐to‐train claim, a plaintiff must
allege that a municipalityʹs failure to train its employees amounted to ʺdeliberate
indifferenceʺ to the rights of individuals with whom the untrained employees
have come into contact. This ʺstringent standard of faultʺ is not met here, where
the Complaint alleges that the Cityʹs employees acted not with deliberate
indifference, but because of a purported policy of complying with federal
immigration detainers without question, even when circumstances exist to
question the validity of the detainer. If there is a constitutional violation, it is
because of the Cityʹs policy, not because of the Cityʹs failure to train its
employees. The employersʹ ʺshortcomings,ʺ assuming there were shortcomings,
resulted from factors other than a faulty training program. City of Canton, 489
38
U.S. at 391. Accordingly, the district court properly dismissed Hernandezʹs
failure‐to‐train claim.
* * *
In defending this appeal, the Government and the City point fingers
at each other. The Government argues that the City was responsible for
Hernandezʹs confinement and the City argues that it continued to detain
Hernandez only because it was complying with the Governmentʹs detainer. The
Complaint, however, has plausibly alleged that both the Government and the
City were at fault, for it plausibly alleges that both failed to make an inquiry
when circumstances warranted an inquiry, and verification could have been
obtained with minimal effort. As a consequence of those failings, Hernandez was
deprived of his freedom for four days. See Brignoni‐Ponce, 422 U.S. at 878 (ʺThe
Fourth Amendment applies to all seizures of the person, including seizures that
involve only a brief detention short of traditional arrest.ʺ); Dunaway, 442 U.S. at
216 (ʺ[D]etention for custodial interrogation ‐‐ regardless of its label ‐‐ intrudes so
severely on interests protected by the Fourth Amendment as necessarily to
trigger the traditional safeguards against illegal arrest.ʺ).
39
CONCLUSION
For the reasons set forth above, the judgment of the district court is
AFFIRMED IN PART and VACATED IN PART, and the case is REMANDED for further
proceedings consistent with this opinion.
40