USCA1 Opinion

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 Offi

__________________________
_______________________
Gerardo Pavia-Cabanillas and Moreda & Moreda were on brief
_________________________
_________________
appellants.
Peter R. Maier, Attorney, Guillermo Gil, United States Attorn
______________
_____________
Frank W. Hunger, Assistant United States Attorney, and Robert
________________
_______
Greenspan, Attorney, were on brief for appellee.
_________
____________________
May 15, 1995
____________________

____________________

*Chief Judge Torruella heard oral argument in this matter,

did not participate in the drafting or the issuance of the pa
opinion.
The opinion is therefore issued pursuant to 28 U.S
46(d).

CYR, Circuit Judge.

CYR, Circuit Judge.
_____________
Rodr guez and

family members

entered in the United

Puerto

Rico dismissing

Plaintiffs-appellants

challenge the

Manuela

summary judgment

States District Court for the

their Federal

suit for damages resulting from

Tort Claims

District of

Act ("FTCA")

the errant arrest and

imprison-

ment of Manuela Rodr guez

pursuant

to a

valid

by the United States Marshals

warrant.

We

affirm the

Service

district

court

judgment.
I
I
BACKGROUND1
BACKGROUND
__________
On March 14, 1975, in Mineola,
who

identified herself

as "Manuela

New York, an individual

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 recorded on a

standard DEA booking form:

weight:
______
[sic],

140 pounds;
Puerto

citizenship:
___________

Rico;

race:
____

eyes:
____

place of birth:
______________
December

brown; hair:
____

deceased; sister:

______

5';

Maranjito
29,

1942;

brown;

Martha Rodriques.
q

scar

mother:
______

On April

______

the United

District of New

female; height:
______

United States; identifying characteristics:

___________________________

deceased; father:

1975,

white;

date of
birth:
________________

on stomach, right-handed;

7,

sex:
___

States

York issued an

District

Court for

the

Southern

arrest warrant against

"Manuela

____________________

1The relevant facts are recited in the light most favorable

plaintiffs-appellants, against whom summary judgment was entered.

Velez-Gomez v. SMA Life Assur. Co., 8 F.3d 873, 874 (1st Cir. 1993)

___________

___________________
2

Rodr guez," directed to

g

the DEA

for execution.

The DEA

never

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

York ("SDNY"), was

arrest

warrant.

assigned to

Bayam n,

locate the subject

of the

1975

Sometime later, a credit bureau check by Deputy

Rodr guez yielded a

in

District of New

fresh lead:

Puerto Rico,

with

a "Manuela
the

Rodr guez" residing

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

Marshals Service,

form

SDNY.

prepared

by

the

United

Deputy Rodr guez requested

States

the United

States Marshals Service, DPR, to "check the following lead."

cover memorandum summarized

most of the identifying

Her

information

in the

accompanying documents

tional information:
Dora; weight:

a/k/a
_____

140 (back

____

____

and included the

following addi-

Lopez, Dora Restrepo, a/k/a Restrepo,

_____ _____________ _____ ________
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
cover memorandum noted:
Rodr guez

request

packet.

have resided, her

"photo not available."

fingerprints

Shortly after

for

the

inclusion

arrest packet

Nor
in

did Deputy
the

arrest

reached

Puerto

Rico on January
case, C sar
States

requested.

the deputy marshals

Torres and Eugenio

Marshals

subject.

26, 1990,

Service,

The record is
In

any event,

assigned to

D az, requested that

SDNY,

forward a

silent as to

the

the United

photograph

of

the

whether fingerprints were

Deputies Torres and

D az once

again

were advised that no photograph was available and that SDNY could
provide no additional information.

On February
Rodr guez indeed

8, 1990,

was residing at

after confirming that

a Manuela

the Bayam n address

listed in

the arrest packet, Deputies Torres and D az alerted a

judge

that

Deputies

an arrest

Torres and

execute the

was imminent.
D az

Later in

proceeded to

tiff-appellant

Pedro

Gonzalez Martinez

Rodr guez's husband.

Martinez

the afternoon,

the Bayam n

arrest warrant, and identified

magistrate

address to

themselves to plain-

("Martinez"), plaintiff

phoned plaintiff Rodr guez at her

place of work, and she arrived home at approximately 4:50 p.m.

At

her insistence, the

Rodr guez in the presence of

deputies interviewed plaintiff

her family.

She confirmed

most of

the information provided in the arrest packet, including her full

name,

social security

number, birthplace,

scar, right-handedness, and that

birthdate, abdominal

both her parents were deceased.

Prior to her arrest, plaintiff also told the deputy marshals that
she had a sister

named "Marta Rodr guez."

t
g

Although

judgment

reveals

Rodr guez

record

siblings, including
only
____

that

a sister

grounds asserted

plaintiff

named "Maria" and/or

in opposition

to summary

the summary
has

three

"Marta," the

judgment below

were

the alleged

three-inch height

weight difference,
forehead,

the failure

SDNY, to forward
and

an additional
of

difference, a

scar on

the United

a photograph and

the failure of Deputies

twenty-pound

plaintiff Rodr guez's

States Marshals

Service,

fingerprints to Puerto

Torres and D az

Rico,

to request finger-

prints.
When Deputies Torres and D az advised

that they had an

arrest warrant for "Manuela Rodr guez," plaintiff protested

no avail

that she

warrant since she

could not be

the individual named

had never been to New York.

the arrest, the deputies attempted

likewise

to

in the

Immediately after
to no avail

to

contact a magistrate judge, then booked plaintiff and transported

her to
to

a pretrial detention facility

the provisional

magistrate judge.

commitment
The

for incarceration pursuant

order previously

issued by

the

following day, February 9, plaintiff

was

brought before a magistrate judge and released on personal recognizance 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

photograph

Service, SDNY.

Finally,

10,

taken at the Mineola Police Department at the time of

the 1975 arrest was

mailed to Puerto Rico.

arrived on February 12, it was readily

Rodr guez was not the
February

on February

13, the

When

the photograph

determined that plaintiff

"Manuela Rodr guez" arrested in 1975.

government

moved to

dismiss all

On

proceedings

against plaintiff Rodr guez.

5

In
disallowed

due

course

the

United

the administrative

States

claim filed

Marshals

Service

by plaintiffs-appel-

lants, clearing the way for the present action against the United
States for false
the

arrest and false

conduct of its

deputy marshals

Deputy Rodr guez, the wrongful

Rodr guez pursuant
or

imprisonment based solely

in (1)

on

initiating, through

arrest and detention of plaintiff

to the 1975 arrest

warrant without obtaining

forwarding a photograph and fingerprints of the 1975 arrestee

to the District of Puerto Rico; (2) executing the arrest warrant,

through

Deputies

fingerprints of
weight

Torres

the subject

differences

arrestee;

and

between

D az, without

photograph

and notwithstanding the

plaintiff

Rodr guez

and

height and

and

the 1975

and (3) delaying plaintiff Rodr guez's initial appear-

ance before a magistrate judge.2

The
claims.

United States

moved for

summary judgment

on all

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
support

and D az prior to the

reasonable

belief

by the

arrest was adequate to

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

could not have formed

guez was the subject
of

the height

and

a reasonable belief that

arrestee,

plaintiff Rodr -

of the 1975 warrant, particularly

weight discrepancies;

and

(2) that

in light

Deputy

Rodr guez negligently failed to

prints of the 1975

include a photograph and finger-

arrestee in the arrest packet

transmitted to

the United States Marshals Service, DPR.

The
that

United States responds in

Deputies Torres and

that plaintiff
not negligent.

D az had

kind.

First, it claims

reasonable cause

to believe

Rodr guez was the 1975 arrestee; hence, they were

Second, even assuming

negligent conduct on

the

part of Deputy Rodr guez in the pre-arrest investigation, federal

law enforcement officers owe no
in

conducting
2680(h)

pre-arrest

waives

duty to exercise reasonable care

investigations

sovereign

immunity

enumerated intentional torts only

false imprisonment

from

secondly,

suit

among them false

for

FTCA

certain

arrest and

and not for mere negligent investigation.

II
II
DISCUSSION
DISCUSSION
__________

A.
A.

and,

Summary Judgment
Summary Judgment
________________

grant

review under the

Guzman-Rivera
_____________
Summary
light

of summary

judgment

subject to

same criteria incumbent on

v. Rivera-Cruz,
___________

29

most conducive

to the

trialworthy issue

plenary

the district court.

F.3d 3,

judgment is appropriate where

reveals no

is

(1st Cir.

1994).

the record, viewed in the

party resisting
of material

summary judgment,

fact,

and the

party

requesting it is entitled to judgment as a matter of law.

B.
B.

Id.
___

Sovereign Immunity
Sovereign Immunity
__________________

For many years the general waiver of sovereign immunity

afforded by

FTCA

2674

against the United

extent

as

"intentional
false

28

torts"

as

tort actions
same manner

private
2674,

assault,

battery,

prosecution, abuse

the

U.S.C.

"intentional

brought

and to the

same

under

for such

like

so-called

false imprisonment,
of process,

and interference

2680(h).
torts"

to be

individual
except
______

misrepresentation, deceit,

rights, 28

narrowed
________

U.S.C.

arrest, malicious

slander,
tract

States "in the

[against]

circumstances,"

permitted

Then, in
exception so
_________

with con-

1974
as

libel,

Congress
to

enable

actions against the United States based on six state-law torts

assault,
process

battery,

false imprisonment,

and malicious prosecution

sions of its

"investigative or law

false

arising

arrest, abuse

of

from acts or omis-

enforcement officers."

Id.
___

Thus, the United States is

the

same extent"

for

liable

"in the same manner

a false arrest

"as a private individual" would be

and to

of plaintiff Rodr guez,

in "like circumstances" under

the applicable state law.

8

C.
C.

Applicable Substantive Law

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
"law

United States.
of the

Richards v.
________

28

U.S.C.

place" encompasses
United States, 369
_____________

Maine Asbestos Litigation, 772

_________________________
cert. denied,
_____ ______
omissions
look

476 U.S. 1126

Its reference to the

choice-of-law principles.
U.S. 1, 11-13 (1962);
F.2d 1023, 1029 (1st

(1986).

by Deputy Rodr guez took

to New York law for the

actions.

1346(b).

In re All
_________

Cir. 1985),

As all material
place in New

See
___

acts and

York, we would

rule of decision applicable to her

New York choice-of-law principles provide that conduct-

regulating causes of action

the place where an

normally are governed by the

actionable injury is sustained.

law of

See Schultz
___ _______

v. Boy Scouts of Am., Inc., 480 N.E.2d 679, 684 (N.Y. 1985).
_______________________
Any

injury to

plaintiff

Puerto

Rico.

court,

assumed from the start

actionable
Deputy

claim predicated

Rodr guez in

likewise, see
___
Ltd., 7 F.3d
____
law bears a
Finally,
under

Moreover, the

parties, as

on

New York.

In

law raise

and omissions

of

we do

v. Walbrook Ins. Co.,

___________________

all claims in

and false

no

treat them

law governs any

Cir. 1993), since

false arrest

in

the district

these circumstances,

"reasonable relation" to

present context, we

well as

alleged acts

1047, 1048 n.1 (1st

Rico

was sustained

that Puerto Rico

Commercial Union Ins. Co.

__________________________

since the

Puerto

Rodr guez

relevant

as identical

Puerto Rico

litigation.

imprisonment claims
distinction

in the

causes of

action.

Cf. Ayala v. San Juan Racing Corp., 112 P.R. Dec.804, 812 (1982).

___ _____
D.
D.

_____________________

The False Arrest Claims Relating

The False Arrest Claims Relating
________________________________
to Deputy Marshals Torres and D az
to Deputy Marshals Torres and D az
__________________________________
Plaintiff

D az

Rodr guez contends that

subjected her to false arrest by executing the 1975 warrant

despite
given

certain discrepancies
by the

1975

biographical data

between the

arrestee and
Deputy

the

These discrepancies

engender a

reasonable doubt which the

have resolved

by obtaining a

arrestee.

summary

officers could

on the

physical description
to

the

were sufficient, she

central

to

and

arresting

argues, to

arresting deputies should

photograph or fingerprints

Their failure

judgment

physical description

Rodr guez provided

officers.

1975

Deputies Torres and

of the

do

so therefore

precluded

issue

whether the

arresting

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.
125

(1965).

See Restatement (Second) of Torts,

___ _____________________________

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
_____________________________________________
(1985), careful
Supreme Court

research has

A.L.R.4th

disclosed no reported

decision addressing a false arrest

705

Puerto Rico

claim based on

the execution of a valid arrest warrant against the wrong person.

10

As a
Court has
common

conformed its limited "false

law principles.

(citing common
Torts);
_____
32

law

Puerto Rico Supreme

arrest" jurisprudence to

See, e.g., Ayala, 112

___ ____ _____

sources, including

P.R. Dec. at 813

Restatement (Second) of
________________________

Dobbins v. Hato Rey Psychiatric Hosp., 87 P.R.R. 28, 31_______

__________________________

(1962)

Torts
_____

general matter, however, the

(citing common

(1938)).

practice

Restatement,
____________

with

our longstanding

Puerto Rico court

has not diverged

law principles, see

___

Cos., Inc., 758

__________

sources, including

Accordingly, consistent

in cases where the

from common

law

Importers Ctr., Inc.

____________________

v. Newell
______

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
adopt the
the

pattern of

reliance on

common law

Restatement (Second) of Torts,

______________________________

appropriate

framework for

analysis

authority), we

35-45A,
of

112-36, as

the instant

false

arrest claim.
1.
1.

Conditional Privilege
Conditional Privilege
_____________________
Generally speaking,

valid warrant
liability

is conditionally

lies against

(Second) of Torts,
__________________
agent's
_______
behalf,"

an arrest conducted

privilege

the officers
118,

is

privileged, and no

pursuant to a

false arrest

responsible.

122 (1965).

"properly exercised

Moreover,
on

his

Restatement
___________
where

an

principal's

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

a government employee

acting within the scope

the conduct of

of his employment

likewise has been recognized as a defense available to the United

States

in

actions

enumerated in

FTCA

based

on the

2680(h).

so-called
See, e.g.,
___ ____

intentional
Arnsberg v.
________

torts

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).
in its defense

Thus, the United States is entitled to assert

a conditional privilege conferred

upon its agent

by applicable local law in the same manner and to the same extent
as a

nongovernmental principal

stances.
makes

could assert in

similar circum-

The legislative history accompanying the 1974 amendment

clear

that

Congress

intended "to

make

the

Government

independently liable in damages for the same type of conduct that

____ ____
is alleged
imposes
_______

to have occurred

liability
_________

upon
____

the
___

in Bivens (and for

______ ___ ___
individual
__________

which that case

_____ ____ ____

Government
__________

officials
_________

____________________
3Section 217.
Section 217.

Where Principal or Agent has Immunity or Privil

Where Principal or Agent has Immunity or Privil

In an action against a principal

In an action against a principal

based on the conduct of

based on the conduct of

servant in the course of employment:

servant in the course of employment:
(a)
(a)

The principal has a defense if:

The principal has a defense if:
. . . .
. . . .
(iii) the agent had a privilege which he
(iii) the agent had a privilege which he
exercised on his principal's behalf . . . .
exercised on his principal's behalf . . . .

Restatement (Second) of Agency,

______________________________

prope
prope

217(a)(iii).

12

involved)."
________

See S. Rep. No. 588,

___

reprinted in
_________ __

1974 U.S.C.C.A.N. 2789, 2791

also
____

93d Cong., 2d Sess. 3 (1973),

(emphasis added); see

___

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
arrested

pursuant to

valid arrest

warrant, the

was

conditional

privilege would not insulate the arresting officers from liability 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).

record

plaintiff

plainly

reflects

that

Since the

Rodr guez

maintained

throughout that she was not the person named in the 1975 warrant,
___
we

need only inquire

(1) she

was "sufficiently named

warrant" and
that

pursuant to subsection 125(a)

she was

or otherwise

(2) Deputies Torres and

"the person

whether

described in

the

D az "reasonably believed"

intended" in

the warrant.

See id.
___ ___

125(a).
First and foremost, there
person
warrant,

arrested
see id.
___ ___

with the same

was "sufficiently

can be no question
named"

in

the 1975

that the

arrest

125(a), which directed the arrest of a person

name as

plaintiff Rodr guez.

officer "is privileged to arrest the

the warrant] applies with

A law

enforcement

person to whom the name [in

complete accuracy, although the [offi-

13

cer] may have reason to suspect that a mistake has been made, and
_______
that

the person,

intended."

though

Id.
___
The

accurately named,

is

not the

person

125 cmt. f (emphasis added).

United States

warrant, together

argues that

with the

the name

in

information contained in

the 1975

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
herself

the warrant.

provided

Indeed, the

in response

to

information plaintiff

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

discrepancies
cal

with

government

that

these

slight

minor variations between the plaintiff's physi-

description and

scription

the

could

reasonableness of the

the fifteen-year-old
not

have

DEA booking

undermined

the

arresting deputies' belief that

was the person named in the 1975 warrant.

form de-

objective

plaintiff

Furthermore, apparent-

____________________

4The arresting deputies confirmed that plaintiff Rodr gue

birthplace, birthdate, abdominal scarring, right-handedness, citiz
ship, race, and Social Security number were all identical to the d
contained in the arrest packet.
Plaintiff even confirmed that
sister had the same name as that which the 1975 arrestee had given

her sister.
Finally, plaintiff informed Deputies Torres and D
that, like the 1975 arrestee, both her parents were deceased as we

The record is silent as to whether anyone (including plainti

noted the three-inch height discrepancy at the time of arrest.
twenty-pound weight difference was reasonably attributed by
deputies to the fact that almost fifteen years had passed since
arrest of "Manuela Rodr guez" in Mineola, New York.
14

ly mindful of the risks inherent in executing a

arrest warrant,
obtain further

Deputies Torres and D az

information, as well

fifteen-year-old

prudently attempted to

as a

photograph, from

the

United States Marshals Service, SDNY, but were told that no photo
or additional
deputies

even

information was available.

afforded plaintiff

explain how anyone

with all

this

other than

information in

Indeed, the arresting

Rodr guez

an opportunity

to

provided the

DEA

she could have

1975.

Plaintiff

Rodr guez

was

unable to explain then and offers no explanation now.

Their
Torres and D az
belief
______
guez"

painstaking efforts
with little

inkling

that plaintiff Rodr guez

named in the arrest

warrant.

could
let

have

left

alone a

was not the

___

Deputies

reasonable
__________

"Manuela Rodr -

Thus, notwithstanding their

errant

arrest of an

innocent person, the

having utilized every available

arresting officers

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.
arrest

Consequently, the

execution of the

valid 1975

warrant by Deputies Torres and D az was privileged.

lastly, the United States

which attached

was entitled to rely on

to the arresting

deputy marshals

And,

the privilege
as a

complete

defense to liability for false arrest, as provided by Restatement

___________
(Second) of Agency,
__________________
E.
E.

217(a)(iii).

The Claims Relating to Deputy Rodr guez

The Claims Relating to Deputy Rodr guez
_______________________________________
Plaintiffs-appellants further contend

States is liable for

that the

United

the "negligent investigation and initiation

15

of arrest proceedings"

by Deputy Rodr guez.

counters that federal law enforcement

to

exercise

reasonable care

The United

States

officers owe no legal duty

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.

United States, even

negligent

Thus,

according to

if local law afforded a right

investigation and

initiation

sovereign immunity.

16

it would

the

of action for
be barred

by

1.
1.

Negligent Investigation
Negligent Investigation
_______________________
Plaintiffs-appellants

recognizes

a right

point

of action

to

no

authority

for "negligent

which

investigation" in

these circumstances, nor have we found any authority for imposing

liability on
several
State,
_____

the sovereign for

negligent investigation, whereas

courts have rejected such

324

N.W.2d 299,

302 (Iowa

Tucson, 831 P.2d 850, 851 (Ariz.

______
841 P.2d 453,

claims.

455 (Idaho App.

1982);

See,
___

e.g., Smith v.
____ _____

Landeros v.
________

App. Ct. 1992); Wimer v. State,

_____
_____
Ct. 1992); cf. Bernard
__ _______

States, 25 F.3d 98, 102 (2d Cir. 1994) (applying New

______
FTCA

action and

rejecting claim

failed to exercise due

City of
_______

that law

v. United
______

York law in

enforcement officers

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 .
remedies

of

prosecution").

. .

but must

false

arrest

We therefore

proceed
and

by way

of the

imprisonment

and

traditional

malicious

decline the invitation to speculate

that the Puerto Rico Supreme

Court would be receptive to

such a

claim.
2.
2.

Instigation of False Arrest

Instigation of False Arrest
___________________________
Plaintiffs-appellants cite

F.2d 755 (D.C. Cir.

Sami v. United States, 617

____
______________

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."
States,
______

787

See
___

F.2d 868,

sovereign immunity

id. at 764;
___
872

(3d

effected under

but cf.
___ ___

Pooler v.
______

Cir.) (restricting
FTCA

2680(h)

United
______

waiver

of

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

however,

since we

under the legal

resolve the

conclude that

principles likely

question addressed
no right

in Sami,
____

of action

to be applied

would lie

by the

Puerto

Rico Supreme Court based on the conduct of Deputy Rodr guez.

One

who

instigates or

confinement of another is
false arrest.
tion"

the unlawful

other for

45A.

"Instiga-

is defined as "words or acts which direct, request, invite

[arrest] itself."

Id.
___

45A cmt. c.

"In

case of an arrest, [instigation] is the equivalent, in words

or conduct, of 'Officer, arrest that man!'"

no

in

subject to liability to the

Restatement (Second) of Torts,

______________________________

or encourage the false

the

participates

means clear

following lead,"

that Deputy
see supra
___ _____

defined in the Restatement,

___________
herself

Rodr guez's
p. 3,

Id.
___

Though it is by

request to

amounted to

"check the

"instigation" as

we consider whether Deputy Rodr guez

would be liable for instigating a false arrest of plain-

tiff Rodr guez in these circumstances.

Instigation of
itself, is subject to

false arrest, like the

the conditional privilege accorded arrests

effected pursuant to a valid warrant.

quently, the conduct of
long as

the arrestee

underlying tort

Id.
___

45A cmt. b.

Deputy Rodr guez would be

was "sufficiently named
18

Conse-

privileged so

or otherwise

de-

scribed in the

warrant" and the

___

"reasonably believed"
intended"

officer instigating the

___________

that plaintiff

in the arrest

warrant.

Rodr guez was

Id.
___

125(a);

arrest

"the person
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.
generate

Nor did

the evidence

a trialworthy

"reasonably believed"
packet

dispute as
that the

she forwarded to Puerto

the 1975 arrest warrant.

See id.
___ ___

developed at

summary judgment

to whether

Deputy Rodr guez

person identified in
Rico was the

the arrest

person intended by

125 cmt f.

Moreover,

plain-

tiffs-appellants have never suggested, either below or on appeal,

that their opportunity to conduct discovery was inadequate.
The
matched
the

record

evidence

reflects

that

Deputy Rodr guez

the name and social security number of the fugitive with

name and social security number of an individual residing in

Puerto Rico.
Puerto
provided

The

arrest packet Deputy

Rico included extensive

by

the "Manuela

Rodr guez forwarded

personal and

Rodr guez"

to

family information

arrested

in 1975,

which

matched

almost

gathered

precisely the

personal

on plaintiff Rodr guez in

discrepancies

between

the

and family

1990.

information

There

information

were two minor

provided

by

arrestee and that provided by plaintiff Rodr guez:

height

difference and

there is no

twenty-pound weight

record evidence

whatsoever to

the

1975

a three-inch

difference.

suggest that

But

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
able

belief that plaintiff Rodr guez was the person named in the

1975 arrest

warrant.

Consequently,

relating to the errant

as a

Deputy Rodr guez's

arrest, even assuming it were

negligent instigation claim, would

leged, see
___
United
own

for forming an objectively reason-

defense.

See
___

supra
_____

pp.

actionable

be conditionally privi-

Restatement (Second) of Torts,

_______________________________

States would be entitled

conduct

to assert the

125(a),

and

the

privilege in its

11-15; Restatement (Second) of

_________________________

Agency,
______

217(a)(iii).5

III
III
CONCLUSION
CONCLUSION
__________
As the
States

challenged conduct

Marshals was

privileged,

of all three

summary judgment

Deputy United

was properly

entered for the United States.

Affirmed.
Affirmed.
________

The parties shall bear their own costs.

The parties shall bear their own costs.
______________________________________

- Concurring Opinion Follows -

____________________

5Nevertheless, given the many uncontrolled ramps leading onto

off the "information highway," Judge Bownes' wise counsel clea
offers law enforcement agencies the best means of avoiding recurren
of the insufficiently explained wrong done in this case.
As
brother cautions, all law enforcement officers
whether direc
involved in effecting an arrest or simply in gathering and forward
information for use by the arresting officers
should exercise
high degree of care commensurate with the seriousness of their m
sion.
20

BOWNES,
BOWNES,
judgment.

Senior Circuit Judge,

Senior Circuit Judge
_____________________

concurring

in the

I agree with the judgment mainly because there was

an improbably close match between the information provided by

the

plaintiff and

packet.

the

detailed information

Given this level

must conclude

in the

of specificity and

that it would

arrest

similarity, I

be entirely unreasonable

for a

finder-of-fact to posit liability against the government.

was

not the government

who framed

which was culpable

the plaintiff some

It

but the impostor

fifteen years before

the ar-

rest.
I

write separately, however, to emphasize that the

Restatement principles
applied

mechanically

engaged in

underlying our decision should not be

where multiple

collective action.

In

government
my view,

actors are

it would

be a

mistake to treat the New York and Puerto Rico marshals piecemeal, 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 --

pal's liability for that act -- should be

what the actor knew
sonable conduct

judged in light of

or should have known, assuming

of other concerned actors.

imputed knowledge seems consistent with agency

liability principles.

and the princi-

the rea-

This concept of
and vicarious

20

The

failings

illustrated using
mation
holds

may mean

guez's
shals

piecemeal approach

the facts of this case.

little in

case, a photograph
file; had it been
in the field, it

arrest.

can

be

A piece of infor-

the abstract

to the

remained inert in
forwarded to the

person who

Deputy Rodri-

Puerto Rico mar-

would have prevented the plaintiff's

Although I agree with my

specificity of

Deputy
might

the

it, but might be decisive to another actor in context.

In this

the

of

the

brother that, in light of

information in

her arrest

packet,

Rodriguez had no reason to fear that the wrong person

be

arrested, the

opinion

nevertheless obscures

government's one regrettable omission.

Rico marshals

saw fit

to

request the

the

After all, the Puerto

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

collective

Indeed, my brother's opinion momentarily

adopts
claim

action.

an integrated

view when

against Deputy Rodriguez.

packet

Deputy

a more integrated

it rejects

to

matched almost precisely the personal

dence matters

only if Deputy

the instigation

See ante at 18 ("The arrest

___ ____

Rodriguez forwarded

gathered on plaintiff Rodriguez

view of

Puerto

Rico .

and family information

in 1990.").

This correspon-

Rodriguez is imputed

with the

21

knowledge

of information

that

was gathered

solely by

the

Puerto Rico marshals.

In

sum,

I have

brother's scholarly opinion.

no quarrel

with

the bulk

I merely wish to raise

of my
a word

of caution against judging co-agents of a common principal as

isolated

actors; their actions should

be assessed as of one

piece.

22