Santoni v. Postmaster General

          United States Court of Appeals
                      For the First Circuit

No. 03-1914

                   VINCENT JAMES SANTONI, JR.,

                      Plaintiff, Appellant,

                                v.

JOHN E. POTTER, POSTMASTER GENERAL AND CEO, UNITED STATES POSTAL
                         SERVICE ET AL.,

                      Defendants, Appellees.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF MAINE

          [Hon. George Z. Singal, U.S. District Judge]


                              Before

                       Boudin, Chief Judge,
                Lynch, and Lipez, Circuit Judges.



     Cynthia Dill for the appellant.
     Evan J. Roth, Assistant United States Attorney, with whom
Paula D. Silsby, United States Attorney, was on brief for appellees
John Potter, United States Postmaster General, and Michael
Desrosiers. Peter T. Marchesi, with whom Wheeler & Arey, P.A. was
on the brief for appellees Barry DeLong and Randy Wing.



                           May 27, 2004
            LIPEZ, Circuit Judge.          Vincent Santoni appeals from the

district   court's    grant    of    summary         judgment         in   favor    of   the

defendants on his claims against Michael Desrosiers and John E.

Potter, Postmaster General and CEO of the United States Postal

Service (USPS).1 Santoni, a former postmaster of Solon, Maine, was

arrested   for    indecent     exposure         by    a       local    deputy      sheriff.

Desrosiers,   a   postal     inspector      who      had       sworn   out   the     arrest

warrant, accompanied the deputy sheriff and participated in the

arrest.    Santoni subsequently filed an 18-count complaint against

Desrosiers,   the    USPS,    and    the    sheriff           and   deputy   sheriff      of

Somerset    County,       Maine,     asserting            a    variety       of     federal

constitutional      and   state     law    claims         in    connection        with   the

allegedly unlawful arrest.           The district court granted summary

judgment in favor of the defendants on all counts. Santoni appeals

from the district court's grant of summary judgment in favor of the

federal defendants2 on his Fourth Amendment claim under Bivens v.

Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S.

388 (1971), and his claims of unlawful arrest, assault, battery,

and false imprisonment under the Federal Tort Claims Act (FTCA), 28




     1
      Both parties treat the claims against named defendant John E.
Potter as claims against the USPS. For simplicity, we refer to
this party throughout this opinion as the USPS.
     2
      Santoni filed this appeal against all of the original parties
but expressly abandoned his claims against the state defendants in
his brief to this court.

                                          -2-
U.S.C. § § 1346(b), 2671-2680.          We affirm the decision of the

district court.

                                  I.

           On August 2, 1999, Michael Desrosiers, a postal inspector

for the United States Postal Service, learned that the USPS had

received a complaint concerning Vincent Santoni, the postmaster of

Solon, Maine.     The complaint alleged that Santoni had exposed

himself to Heather M., a 15-year-old girl who resided in Solon.        On

August 13, 1999, Desrosiers' supervisor instructed him to conduct

an immediate investigation.

           On August 16, 1999, Desrosiers interviewed Heather, who

said that around 2 p.m. on July 15, 1999, she was riding her

bicycle across a bridge near the post office in Solon when she

heard someone call her name.          She turned around and recognized

Santoni, whom she knew, standing by the edge of the water with his

pants down to his knees and both of his hands holding his exposed

penis.   Heather told Desrosiers that for several years Santoni had

been making inappropriate sexual comments and gestures to her

during her visits to the Solon post office.       Heather's mother, who

attended   the    interview,   said     that   Santoni   had   also   made

inappropriate comments to her and to other women.              Desrosiers

prepared a type-written statement based on the interview, which

Heather reviewed and signed.     Over the next few weeks, Desrosiers

interviewed other female customers of the Solon post office who


                                  -3-
reported that Santoni had touched them or made inappropriate

comments while he was at work at the post office.

            On September 8, 1999, Desrosiers discussed the results of

his   investigation     with    Andrew   Benson,   an    Assistant   District

Attorney (ADA) for Somerset County, Maine.              At Benson's request,

Desrosiers arranged for a fellow postal inspector, who was also a

polygraph   examiner,    to    administer   a   polygraph    examination   of

Heather.    After receiving the results of the test, which Heather

passed, Desrosiers again discussed the case with ADA Benson.               At

the conclusion of that discussion, the DA's Office authorized the

prosecution of Santoni on the criminal charge of indecent conduct,

a Class E misdemeanor under 17A Me. Rev. Stat. Ann. § 854.

            On October 5, 1999, Desrosiers appeared before the clerk

of the state district court in Skowhegan, Maine, to present a

request for a criminal complaint and a warrant for Santoni’s

arrest.     He also submitted a supporting affidavit identifying

Desrosiers as a postal inspector and stating that he had probable

cause to believe that Santoni had committed the state law offense

of indecent conduct, in violation of 17A Me. Rev. Stat. Ann. § 854.

The affidavit provided details about Desrosiers' interview with

Heather and stated that she had passed a polygraph examination.

The court clerk issued         a criminal complaint against Santoni for

violating the indecent conduct statute and a corresponding warrant

for his arrest.       At Desrosiers' request, Randy Wing, a deputy


                                     -4-
sheriff for Somerset County, accompanied Desrosiers to Santoni's

home, where Santoni was arrested.            On April 21, 2000, Santoni was

tried in the Skowhegan District Court and was acquitted after the

court determined that the evidence was insufficient to sustain a

conviction for indecent conduct.3

             On January 3, 2002, Santoni filed an 18-count complaint

in the United States District Court for the District of Maine

against the USPS, Desrosiers, Wing, and Somerset County Sheriff

Barry DeLong.     He sued the USPS pursuant to the FTCA, 18 U.S.C. §

§ 1346, 2671 et seq., claiming that it was liable to him for

unlawful arrest, abuse of process, malicious prosecution, false

imprisonment, intentional and/or negligent infliction of emotional

distress, assault, battery, invasion of privacy, and negligent

supervision and training.           He sued Desrosiers in his individual

capacity, seeking damages for violations of the First, Fourth, and

Fifth Amendments of the United States Constitution pursuant to

Bivens,    403   U.S.   at   388.     Santoni    brought   analogous   Fourth

Amendment claims against Wing and DeLong pursuant to 42 U.S.C. §

1983.     He further claimed that all four defendants had engaged in

a civil conspiracy to violate his federal and state civil rights.

     3
      Heather had stated in her sworn statement and in a pre-trial
interview with ADA Mitchell that she had viewed Santoni's genitals
on July 15. However, during cross examination, she acknowledged
that she had not been able to see Santoni's penis because of the
placement of his hands around it. The district court found that
Heather's testimony failed to satisfy 17A Me. Rev. Stat. Ann. §
854, which prohibits a person from knowingly exposing his or her
genitals.

                                       -5-
            On April 8, 2002, Desrosiers and the USPS, the federal

defendants, moved to dismiss or for summary judgment on all of

Santoni's federal claims.        The district court determined that no

constitutional rights had been violated and that, in any event,

Desrosiers    was   protected    from    liability     on   Santoni's   Fourth

Amendment claim by the doctrine of qualified immunity. Although it

found that Santoni's FTCA claims against the USPS did not fall

within the FTCA's discretionary function exception, it held that

the claims failed on their merits.           Therefore, the district court

granted summary judgment in favor of Desrosiers and the USPS and

dismissed Santoni’s claims against them.           After the district court

granted summary judgment for the federal defendants, the lawsuit

proceeded against DeLong and Wing.           Following discovery, the state

defendants filed a motion for summary judgment, which was granted.

Santoni filed this appeal against all of the original defendants

but has chosen not to prosecute his claims against the state

defendants.

                                 II.

            On appeal, Santoni challenges the district court's grant

of summary judgment in favor of Desrosiers on Santoni's Bivens

claim.   He argues that because Desrosiers lacked authority under

state or federal law to make an arrest for a Class E state law

crime, the arrest of Santoni constituted an unreasonable seizure in

violation    of   the   Fourth   Amendment.       He   further   claims   that


                                       -6-
Desrosiers is not entitled to qualified immunity.                  In addition,

Santoni     argues   that       because    the    district     court   improperly

determined that the arrest was lawful, it erred in granting summary

judgment in favor of the USPS on Santoni's FTCA claims.                We address

each of these arguments in turn.

A.   Standard of Review

            We review the district court's grant of summary judgment

de novo.     Wojcik v. Mass. State Lottery Comm'n, 300 F.3d 92, 98

(1st Cir.       2002).     Summary     judgment    is    appropriate   where   the

evidence shows that "there is no genuine issue as to any material

fact and that the moving party is entitled to judgment as a matter

of law."    Fed. R. Civ. P. 56(c).         A fact is "material" if it "might

affect    the    outcome   of    the   suit"     under   the   applicable   legal

standard.       Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986).     A factual issue is "genuine" only "if a reasonable jury

could resolve it in favor of either party." Basic Controlex Corp.,

Inc. v. Klockner Moeller Corp., 202 F.3d 450, 453 (1st Cir. 2000).

In deciding whether a genuine issue of material fact exists, we

construe the evidence in the light most favorable to the non-moving

party.     Flowers v. Fiore, 359 F.3d 24, 29 (1st Cir. 2004).

B.   Bivens Claim Against Desrosiers

     1.    Santoni's Arrest

     Under Bivens, a person may sue a federal official in his or

her individual capacity for damages arising out of a constitutional


                                          -7-
violation committed under color of federal law.            See Bivens, 403

U.S. at 389; Aversa v. United States 99 F.3d 1200, 1213 (1st Cir.

1999).     Relying on Bivens, Santoni claims that because Desrosiers

had   no   legal   authority   to   make   an   arrest   for   a   state   law

misdemeanor, his arrest of Santoni constituted an unreasonable

seizure in violation of the Fourth Amendment.4

      We have not resolved whether an arresting officer's lack of

authority under state or federal law to conduct an otherwise

constitutionally valid arrest constitutes an unreasonable seizure

under the Fourth Amendment.         The circuits are divided on this

issue. Compare Malone v. County of Suffolk, 968 F.2d 1480, 1482-83

(2d Cir. 1992) (whether officers have valid authority to arrest

pursuant to state law affects constitutionality of the arrest);

Ross v. Neff, 905 F.2d 1349, 1353-54 (10th Cir. 1990) (arrest

executed outside of the officer's jurisdiction violates the Fourth

Amendment and gives rise to a potential § 1983 action); and United

States v. Trigg, 878 F.2d 1037, 1041 (7th Cir. 1989) (custodial

arrest is constitutional if arresting officer had probable cause

and authority under state or municipal law to effect a custodial

arrest for the particular offense) with United States v. Bell, 54

F.3d 502, 504 (8th Cir. 1995); ("[W]e do not think Fourth Amendment

analysis requires reference to an arrest's legality under state

      4
      The Fourth Amendment provides: "The right of the people to be
secure in their persons . . . against unreasonable searches and
seizures, shall not be violated, and no Warrants shall issue but
upon probable cause . . . ." U.S. Const. Amdt. 4.

                                    -8-
law."); Fields v. City of South Houston, 922 F.2d 1183, 1189 (5th

Cir. 1991) (holding that there is no § 1983 cause of action for

false arrest unless the arresting officer lacked probable cause);

and Street v. Surdyka, 492 F.2d 368, 372-73 (4th Cir. 1974) (same).

We do not reach this constitutional question5 because we conclude

that Desrosiers was authorized to swear out the criminal complaint

and receive the complaint and warrant for Santoni's arrest, and

that the warrant was executed under the lawful authority of Deputy

Sheriff Wing.

     Under federal law, the United States Postal Service has

authority   "to   investigate   postal   offenses   and   civil   matters

relating to the Postal Service."         39 U.S.C. § 404(a)(7).      This

authority is primarily exercised through the Postal Inspection

Service, which is charged with "[e]nforcing laws related to the

Postal Service, the mails, other postal offenses and other laws of

the United States."    39 C.F.R. § 224.3(b)(2).

     The federal arrest powers of postal inspectors, however, are

limited and specifically defined, including the authority to "serve

warrants and subpoenas issued under the authority of the United

States" and to make certain warrantless arrests "for offenses


     5
      "[P]rior to reaching any constitutional questions, federal
courts must consider nonconstitutional grounds for decision." Gulf
Oil Co. v. Bernard, 452 U.S. 89, 99 (1981); see also United States
v. Maldonado, 356 F.3d 130, 137 (1st Cir. 2004) (avoiding a
constitutional question about the relevance of subjective intent to
Fourth Amendment analysis of an administrative search where the
appellant's subjective intent argument "fail[ed] on its facts").

                                  -9-
against the United States." 18 U.S.C. § 3061(a); see also 39 C.F.R.

§ 233.1(a). Postal inspectors are not authorized under federal law

to execute a warrant or make an arrest for a state law offense.

See United States v. Univerzagt, 424 F.2d 396, 398 n.1 (8th Cir.

1970) ("Postal inspectors under 18 U.S.C.A. § 3061 are given power

to make arrests for postal offenses upon probable cause but are

given no power to make arrests for state offenses by either state

or federal statute.").   Similarly, while Maine law permits some

specifically designated "federal officers" to make arrests to

enforce state law in certain situations, postal inspectors are not

among these officers.    25 Me. Rev. Stat. Ann. § 1502-A.    Thus,

Desrosiers did not have authority under state or federal law to

make an arrest for a violation of state law.

     Nonetheless, the district court concluded that although Maine

law did not confer upon Desrosiers authority to arrest Santoni, it

did authorize him to swear out a warrant for Santoni's arrest,

either in his capacity as a law enforcement official or as a

private citizen acting with the approval of the district attorney's

office.   It further held that the execution of the warrant was

lawful because Desrosiers participated in the arrest as a private

citizen and was assisted by Deputy Sheriff Wing, who had an

affirmative duty to arrest Santoni.    Santoni challenges both of

these determinations.




                               -10-
          a.   Swearing Out the Criminal Complaint

     In accordance with Maine law, a Maine district court clerk

may, in the absence or unavailability of a justice of the peace or

a prosecuting attorney or any of his assistants, prepare and draft

a misdemeanor criminal complaint "upon the request of any law

enforcement officer."   15 Me. Rev. Stat. Ann. § 708.    While the

statute does not define the phrase "law enforcement officer," the

district court interpreted it to include postal inspectors.     We

agree.

     When interpreting a statute under Maine law, words and phrases

are to be construed in accordance with "the plain meaning of the

enactment."    1 Me. Rev. Stat. Ann. § 72.   Applying this rule of

statutory construction to 15 Me. Rev. Stat. Ann. § 708, we find

that "any" law enforcement officer includes every kind of law

enforcement officer, regardless of whether or not the officer is

statutorily authorized to enforce state law.     Moreover, we have

regularly recognized postal inspectors as law enforcement officers.

See, e.g., United States v. Carrillo Figueroa, 34 F.3d 33, 43 (1st

Cir. 2002) (for sentence enhancement purposes, defendant should

have known that postal inspector was a “law enforcement officer”);

see also Cosme v. Henderson, 287 F.3d 152, 156 (2d Cir. 2002)

(Plaintiff “applied for a position as a postal inspector, a highly

competitive law enforcement position.”); Stout v. Potter, 276 F.3d




                               -11-
1118, 1121 (9th Cir. 2002) (The Postal Inspection Service is “the

law enforcement branch of the United States Postal Service.”).

     Santoni argues that the phrase “law enforcement officers” as

used in 15 Me. Rev. Stat. Ann. § 708 does not include postal

inspectors because postal inspectors are not among those federal

law enforcement officials vested with the "power to enforce state

law" under 25 Me. Rev. Stat. Ann. § 1502-A.   However, 15 Me. Rev.

Stat. Ann. § 708 does not limit authority to swear out a criminal

complaint to state law enforcement officers and federal officers

who are specifically empowered to enforce state law.   Nor does 25

Me. Rev. Stat. Ann. § 1502-A place any limitations on the kinds of

officers who may swear out complaints.   Therefore, we agree with

the district court that the phrase "any law enforcement officer"

does not preclude postal officials from swearing out criminal

complaints.6




     6
      Because we conclude that Desrosiers was a law enforcement
officer for the purposes of 15 Me. Rev. Stat. Ann. § 708, we do not
consider the district court's alternative holding that the court
clerk properly issued the complaint to Desrosiers in his capacity
as a private citizen because the district attorney's office
approved the prosecution.     See 15 Me. Rev. Stat. Ann. § 708
(providing that in the absence or unavailability of a justice of
the peace or prosecuting attorney, a court clerk may issue a
complaint to a person who is not a law enforcement officer for a
non-felony offense "with the approval of the Attorney General or
his designee").


                               -12-
            b.      Executing the Arrest Warrant

       Santoni also argues, however, that even if Desrosiers was

authorized to swear out and receive the complaint, he had no

authority to carry out the arrest of Santoni.                      Once an arrest

warrant is issued, only an "officer authorized by law" may execute

that   warrant.      Me.     R.   Crim.     P.   4(c)(1).     As    noted,    postal

inspectors are not among those officers authorized under Maine law

to execute arrest warrants.               25 Me. Rev. Stat. Ann. § 1502-A.

Santoni argues that Desrosiers also had no authority to execute the

arrest in his capacity as a private citizen.                Therefore, he claims

that    "the     district    court's      conclusion     that      Desrosiers   was

authorized as a private person to arrest Santoni was clearly

erroneous and should be reversed."

       Santoni is correct that Maine law does not authorize private

citizens to make an arrest for a Class E crime not committed in

their presence.      See 17-A Me. Rev. Stat. Ann. § 16; cf. Unverzagt,

424 F.2d at 398 (postal inspector's arrest of individual for

carrying a concealed weapon was valid under Nebraska law that

authorized     private      citizens   to    make   an   arrest     for   a   felony

committed in their presence).              However, the district court held

that Santoni's arrest was lawful, not because Desrosiers had state

law authority to execute the warrant, but because Deputy Sheriff

Wing participated in the arrest.                 In light of Wing's knowing

participation in the arrest, the court explained that it "would be


                                       -13-
elevating form over substance to conclude that the validity of the

arrest depended on which of the two men uttered the words 'You are

under arrest,' or placed the Plaintiff in handcuffs."

     We agree with the district court's conclusion that Santoni's

arrest was lawful because it was carried out under Wing's lawful

authority.    Under Maine law, an arrest warrant "shall be executed

by any officer authorized by law."             Me. R. Crim. P. 4(c)(1).

Deputy Sheriff Wing was clearly authorized – and indeed, required

– by law to arrest Santoni under 15 Me. Rev. Stat. Ann. § 602,

which provides that "[i]t is the responsibility of all police and

sheriff departments and their officers to use all reasonable

efforts to execute the outstanding arrest warrants of which they

are aware."     See also Kane v. Anderson, 509 A.2d 656, 657 (Me.

1986) (concluding that "the execution of an arrest warrant is a

ministerial rather than a discretionary function"); Carroll v. City

of Portland, 736 A.2d 279, 283 (Me. 1999) ("[A] ministerial act is

mandatory and requires no personal judgment or choice.") (emphasis

in original). It is undisputed that Wing accompanied Desrosiers at

Desrosiers'    request    to   Santoni's    residence    where   Santoni   was

arrested and    then     transported   by   Wing   and   Desrosiers   to   the

Somerset County Sheriff's Department.          Based on these facts, the

district court appropriately concluded that Wing was aware of the

outstanding arrest warrant and had a legal duty to execute it.

Desrosiers' presence at the arrest, for the purpose of assisting



                                    -14-
Wing in the execution of the warrant, did not render that arrest

unlawful under state law or constitutionally infirm.           Cf.   Wilson

v. Layne, 526 U.S. 603, 614 (1999) (holding that "it is a violation

of the Fourth Amendment for police to bring members of the media or

other third parties into a home during the execution of a warrant

when the presence of third parties in the home was not in aid of

the execution of the warrant").

     For the first time on appeal, Santoni argues that summary

judgment was inappropriate because it is reasonable to infer that

Wing was not aware of the warrant and therefore had no obligation

to execute it.   This argument relies on statements made by Wing in

a deposition taken on January 31, 2003, five months after the entry

of summary judgment in favor of the federal defendants. As Santoni

acknowledges, however, this transcript was not available to the

district court   and therefore is not part of the record on appeal.

Moreover, Santoni never argued below that Wing was unaware of the

warrant.     Indeed, his complaint suggested that Wing knowingly

participated in the arrest, with a reference to the "illegal arrest

of Santoni by defendants" and the claim that "Defendants DeLong and

Wing did not have probable cause to arrest Santoni" (emphasis

added). Similarly, in his opposition to the defendants' motion for

summary    judgment,   Santoni   alleged   that   Desrosiers    "arrested

plaintiff without authority to do so and that the other defendants

knew it was unlawful but agreed to participate" (emphasis added).



                                  -15-
Because Santoni failed to raise below his theory that Wing had no

obligation to arrest Santoni because he did not know about the

warrant,   this   argument    is   now   procedurally    defaulted.       See

Teamsters, Chauffeurs, Warehousemen and Helpers Union, Local No. 59

v. Superline Transp. Co., 953 F.2d 17, 21 (1st Cir. 1992) ("If any

principle is settled in this circuit, it is that, absent the most

extraordinary circumstances, legal theories not raised squarely in

the lower court cannot be broached for the first time on appeal.").

     In sum, Desrosiers had valid authority to swear out the

criminal complaint and receive the complaint and warrant for

Santoni's arrest, and Wing had valid authority to execute that

warrant.    Therefore,   we    agree     with   the   district   court   that

Santoni's arrest was lawful under Maine law and that it did not

constitute an unreasonable seizure under the Fourth Amendment.

     2.    Qualified Immunity

     Because Santoni has not presented a viable constitutional

claim, we do not consider whether Desrosiers is protected from

liability by qualified immunity. See Saucier v. Katz, 533 U.S. 194

201 (2001) ("If no constitutional right would have been violated

were the allegations established, there is no necessity for further

inquiries concerning qualified immunity."); Flowers v. Fiore, 359

F.3d 24, 34 (1st Cir. 2004) ("Upon finding that there was no

constitutional violation, we do not address the issue of qualified

immunity.").


                                    -16-
C.    FTCA Claims Against the USPS

      We next consider whether the district court erred in granting

summary judgment for the USPS on Santoni's tort claims of unlawful

arrest, assault, battery, and false imprisonment.

      The Federal Tort Claims Act, 28 U.S.C. § 2671 et seq.,

provides a limited congressional waiver of the sovereign immunity

of the United States for torts committed by federal employees

acting within the scope of their employment.             Under the statute,

the United States may be held civilly liable "in the same manner

and   to   the   same   extent   as   a    private   individual   under   like

circumstances."     28 U.S.C. § 2674.         Certain types of intentional

torts are exempted from the FTCA’s waiver of sovereign immunity,

but the statute allows claims against the United States for the

torts of “assault, battery, false imprisonment, false arrest, abuse

of process, or malicious prosecution” arising out of “acts or

omissions of investigative or law enforcement officers of the

United States Government.” 28 U.S.C. § 2680(h).

      This waiver of sovereign immunity, however, is subject to a

number of statutory exceptions.           See 28 U.S.C. § 2680.   One defense

raised in the proceedings below was the discretionary function

exception, which shields from liability claims “based upon the

exercise or performance or the failure to exercise or perform a


                                      -17-
discretionary function or duty on the part of a federal agency or

an employee of the Government, whether or not the discretion

involved be abused.”            28 U.S.C. § 2680(a).            If the discretionary

function exception applies, the agency is completely immune from

suit, and the claim must be dismissed for lack of subject matter

jurisdiction.      Kelly v. United States, 924 F.2d 355, 360 (1st Cir.

1991).

      The   district      court    held      that   the    discretionary       function

exception did not preclude consideration of Santoni’s tort claims

against     the   USPS    for    alleged     harms    arising      from    Desrosiers’

participation in the arrest of Santoni.                   Because Desrosiers acted

outside the scope of his federal authority as a postal inspector

when he participated in this arrest (regardless of whether his

conduct was authorized under state law), the court concluded that

the   discretionary       function      exception     did    not    apply.7      As    we

recently noted,"courts have read the Supreme Court's discretionary

function     cases   as     denying       protection       to    actions      that    are

unauthorized      because       they   are   unconstitutional,        proscribed      by

statute, or exceed the scope of an official's authority."                        Thames

Shipyard & Repair Co. v. United States, 350 F.3d 247, 254-55 (1st

Cir. 2003) (collecting cases).                 However, we have not resolved

whether the discretionary function exception extends to actions


      7
      The USPS does not challenge this determination on appeal;
indeed, the attorney for the government conceded at oral argument
that   the  discretionary   function  exception   does  not   bar
consideration of Santoni’s claims.

                                          -18-
that are otherwise outside the scope of an official's actual

federal authority, and we need not do so here.    Nor do we address

whether Desrosiers had implied federal authority to participate in

the arrest to the limited extent of swearing out the criminal

complaint, receiving the arrest warrant, and assisting Wing in the

execution of that warrant.   See, e.g., id. at 260 (holding that the

discretionary function exception applied where the Coast Guard had

implied statutory authority to order the evacuation of a sinking

ship).   Assuming, arguendo, that the USPS is not shielded from

liability by the discretionary function analysis, Santoni’s tort

claims fail on the merits.

      As noted, under the FTCA, the USPS is liable for the torts of

its agents, "in the same manner and to the same extent of a private

individual under like circumstances."    28 U.S.C. § 2674.   Because

the alleged tortious conduct took place in Maine, we look to Maine

tort law in determining the defendant's liability under the FTCA.

28 U.S.C. § 1346(b)(1).

      Santoni's claims of false arrest, false imprisonment, assault,

and battery rely on the premise that Desrosiers acted at least

negligently by arresting Santoni without any lawful authority to do

so.   Under Maine law, the torts of assault and battery by a law

enforcement officer require either a false arrest or the use of

excessive force during or after taking an individual into custody.

Bale v. Rider, 290 A.2d 359, 360 (Me. 1972).     Similarly, in order

to establish a tort claim of false arrest and false imprisonment

                                -19-
“the    authority    upon   which   [P]laintiff   is   confined   must   be

unlawful.”   Nadeau v. State, 395 A.2d 107, 116 (Me. 1978) (stating

elements of false imprisonment claim); see Jedzierowski v. Jordan,

172 A.2d 636, 637 (Me. 1961) (holding that false arrest is one

means of committing false imprisonment).

       As we have already concluded, supra, Santoni was arrested and

confined upon valid state law authority. Desrosiers’ participation

in the arrest did not render it unlawful under state law or the

Fourth Amendment. Because Santoni’s arrest was lawful, there is no

basis for finding liability for false arrest, false imprisonment,

assault, or battery.        Therefore, we conclude that the district

court properly granted summary judgment in favor of the defendants

on Santoni’s FTCA claims against the USPS.

                                    III.

       For the foregoing reasons, the district court’s entry of

summary judgment in favor of the defendants is affirmed.

       So ordered.




                                    -20-