Case Information
*1 1
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA JESUS CASTELLANOS and RAQUEL Case No.: 18cv2334 JM(AGS) CASTELLANO, ORDER ON MOTION FOR Plaintiffs, SUMMARY JUDGMENT v.
UNITED STATES OF AMERICA, et al.,
Defendants.
Presently before the court is Defendants the United States of America and Michael Hedlund’s motion for summary judgment (Doc. No. 32). A hearing on the motion was held on January 13, 2020. For the reasons set forth below, the motion is denied.
I. BACKGROUND
This lawsuit stems from an incident that occurred at the Calexico Port of Entry (“POE”) on December 17, 2017. Upon applying for admission to the United States, Plaintiffs and their adult son, Marco, were referred to secondary inspection so that the vehicle they were traveling in could be inspected. (SAC at ¶ 17; Doc. No. 33-5, “Jesus Castellanos Dep.,” 13 [1] ; Doc. No. 33-7, “Marco Castellanos Dep.,” 5.) The Plaintiffs were sent to secondary inspection because a database had indicated to the primary inspector that *2 1 Marco was on supervised release in connection with a drug smuggling conviction. (SAC at ¶ 17; Doc. No. 33-4, Miguel Salcedo Decl. at ¶¶ 3, 4; Marco Castellanos Dep. 5.)
While Plaintiffs were being held in the secure secondary waiting area, California Border Patrol (“CBP”) Canine Program Officers were conducting a “sensitive border security operation” referred to as a “canine block blitz” which involved inspecting all southbound vehicles and targeting a vehicle that was stopped directly across from Marco and Jesus Castellanos. (Doc. No. 33-9, “Eugene Stewart Dep.,” 5, 8.) The entire incident within the secondary waiting area was videotaped, although an unobstructed and clear view of the encounters between Jesus Castellanos and all of the CBP Officers is not presented. Not surprisingly, the parties present differing accounts on certain aspects of the incident.
Marco began using his mobile phone, and as he was approached by CBP Officer Martinez, put his phone back in his pocket. (Jesus Castellanos Dep. 15 [2] ; Marco Castellanos Dep. 6-7; Eugene Stewart Dep. 5.) Officer Martinez and Marco exchanged words regarding Marco’s use of the phone. (Jesus Castellanos Dep. 16; Marco Castellanos Dep. 8, 9; see generally Doc. No. 47-2, Ex. 4, Report of Investigation (“R.I.”).) Officer Martinez believed Marco was recording what was occurring at secondary and told Marco that he needed Marco to hand over his phone. ( Id.) Although Marco himself disputes that he ever stated he would not turn over his phone and simply requested a supervisor be called, others claim that Marco refused to give his cellphone to Officer Martinez. ( See Jesus Castellanos Dep. 17; Marco Castellanos Dep. 9; Eugene Stewart Dep. 5-6; see generally R.I.)
Officer Martinez entered the secure waiting area and attempted to arrest Marco. Marco did not acquiesce to being handcuffed, telling Officer Martinez not to touch him. (Jesus Castellanos Dep. 17; Marco Castellanos Dep. 10.) Officer Garneau arrived to assist Officer Martinez in restraining Marco. At this point, Plaintiffs Jesus and Raquel Castellanos approached Marco and Officers Martinez and Garneau. Jesus Castellanos placed his right hand into the general vicinity where Officer Garneau and his son were standing. (Doc. No. 33-1 at 2, screenshot of surveillance video, 21:04:08.471.) Jesus Castellano maintains he was reaching to touch his son’s arm while simultaneously telling him to calm down, and that all he was doing was trying tо ease the tension. (Jesus Castellanos Dep. 18, 19.) Marco stated that he heard his father telling him “Calmate hijo,” (relax son), while putting his hand on his shoulder. (Marco Castellanos Dep. 11.) In contrast, CBP Officer Hedlund claims he saw Jesus Castellano place his hand on Officer Garneau’s left arm and interpreted this as an assault on his fellow officer, “[I]t’s an absolute no-no in my book, I mean you don’t touch an officer.” (R.I. at 29; see also id. at 21.) Officer Garneau would later recount that Marco screamed and hollered the entire time, which caused his father to respond to the area who then screamed and hollered. (R.I. at 8.) The video image is not clear as to who Jesus Castellano is reaching for.
At this point, CBP Officer Pelayo reported that he moved over to the secondary inspection area and guided Jesus Castellanos back with his left hand, over the top of the fence that is securing the secondary waiting area. (R.I. at 7.) The video confirms this. Then Officer Hedlund entered the secondary area and moved directly toward Jesus Castellanos. He pushеd Jesus Castellanos backward and away from the ruckus involving his son. (Doc. No. 33-1 at 3, screenshot of surveillance video, 21:04:16.545.) Officer Hedlund recounted that while pushing him backward, “Jesus Castellanos became physically assaultive toward him and began to grab and scratch CBPO Hedlund’s face.” (R.I. at 21.) Jesus Castellanos and Officer Hedlund disagree as to whether any verbal commands were issued by Officer Hedlund while he was pushing Jesus Castellanos backward.
Officer Hedlund then turned Jesus Castellanos toward the bench and sat him down. Jesus Castellanos’ left hand/fist was up near the right side of Officer Hedlund’s face. (Doc. No. 33-1 at 3, screenshot of surveillance video, 21:04:19.748.) Officer Hedlund later reported that Jesus Castellano had him “by his throat and began to hit him.” (R.I. at 22.) Officer Hedlund struck downward on Jesus Castellanos’ left arm with his right arm. Jesus Castellanos maintained his grip on Officer Hedlund’s uniform shirt. (Doc. No. 33-1 at 5, screenshot of surveillance video, 21:04:20.282; Doc. No. 33-1 at 6, screenshot of surveillance video, 21:04:20.416.) Officer Hedlund then punched Jesus Castellanos twice under the left arm in his upper left side, causing Jesus Castellanos to release his grasp of Officer Hedlund’s uniform. The internal investigation report states that “Jesus Castellanos’ right arm can be seen holding onto CBPO Hedlund’s left arm.” (R.I. at 3.) Jesus Castellanos claims that he may have touched Officer Hedlund when he was “moving my hand out of desperation that I am going to fall down” backward. (Jesus Castellanos Dep. 21.) This initial interaction lasted approximately 9 seconds.
Officer Hedlund then attempted to handcuff Jesus Castellanos by turning Jesus Castellanos to his right. CBP Officer Zaragoza arrived to help. The parties dispute whether Jesus Castellanos resisted being handcuffed. Plaintiff claims that he did not struggle or resist arrest. (Jesus Castellanos Dep. 22.) Defendant contends that the video shows “Jesus Castellano then positioned his left leg in an apparent attempt to stand up as the two CBP officers were trying to handcuff him in a seated position. The two CBP officers therefore turned Jesus Castellanos face down onto the bench to handcuff him.” Doc. No. 33 at 13. ( See also Doc. No. 33-1 at 7, screenshot of surveillance video, 21:04:26.955; Doc. No. 33- 1 at 8, screenshot of surveillancе video, 21:04:41.837.) Officers Garneau, Bustillo, Zaragoza and Guerrero reported that Jesus Castellanos was physically and verbally non- compliant. (R.I. at 8, 9, 10, 15.) The video illustrates that Jesus Castellanos ended up face down on the bench, with CBP Officer Guerrero also assisting in cuffing Jesus Castellanos . The image of Mr. Castellanos is obscured from view, but Plaintiff maintains that he was punched 6-7 times after the handcuffs were on him and his right arm was twisted. (Jesus Castellanos Dep. 23.) It takes approximately 32 seconds to place the handcuffs on Jesus Castellanos.
Afterward, Jesus Castellanos complained of right elbow pain and was transported to El Centro Regional Medical Center. An x-ray was negative for fracture of the elbow and neither rib fractures or fractures of the pneumothorax were found. (Doc. No. 33-1 at 15, 22, 25, 26.) An X-ray of the elbow scan two days later showed no signs of fracture but were “suggestive of an occult fracture around the elbow joint” and a CT scan of the chest revealed “minimally displaced ribs.” ( Id. at 43-46.) No injuries to Jesus Castellanos’ left arm were indicated. Jеsus Castellanos suffers from diabetes and takes blood thinners. (Jesus Castellanos Dep. 3.)
On October 10, 2018, Plaintiffs filed suit in district court pursuant to 28 U.S.C. §§ 1331, 1346(B) and 1391(b) alleging that Defendants violated their civil rights and committed torts against them. (Doc. No. 1.) The Second Amended Complaint was filed on October 7, 2019, (Doc. No. 29), wherein Plaintiff Jesus Castellanos asserts two “Bivens claims” against Defendant Hedlund: (1) for Excessive Force in violation of his Fourth Amendment Right to be free from the use of excessive force and; (2) Unlawful Detention/False Arrest in violation of his Fourth Amendment Right to be free from unreasonable seizure and unlawful arrest. In addition, Jesus Castellanos brings claims against the United States pursuant to pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671 et seq., for Assault, Battery, and False Imprisonment and both Plaintiffs assert claims for Negligence and Intentional Infliction of Emotional Distress under the Act. Plaintiff Jesus Castellanos also brings a Bane Act claim for violation of California Civil Code § 52.1.
II. LEGAL STANDARDS
A motion for summary judgment shall be granted where “there is no genuine issue
as to any material fact and . . . the moving party is entitled to judgment as a matter of law.”
Fеd. R. Civ. P. 56(c). The moving party bears the initial burden of informing the court of
the basis for its motion and identifying those portions of the record that it believes
demonstrate the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett
,
In response to a motion for summary judgment, the non-moving party cannot rest on
the mere allegations or denials of a pleading but must “go beyond the pleadings and by
[its] own affidavits, or by the depositions, answers to interrogatories, and admissions on
file, designate specific facts showing that there is a genuine issue for trial.”
Id.
at 324
(internal citations omitted). In other words, the non-moving party may not rely solely on
conclusory allegations unsupported by factual data.
Taylor v. List
,
III. DISCUSSION
The individual Defendant, Officer Hedlund, seeks summary judgment on Plaintiff Jesus Castellanos’ Bivens claims. [3] First, Officer Hedlund argues that the Bivens Fourth Amendment claims should be dismissed as a matter of law because they would require an unwarranted extension of Bivens remedies. Second, Officer Hedlund seeks summary judgment under the qualified immunity doctrine asserting that Plaintiff has failed to prove a constitutional violation and, even if there is a constitutional violation, there is no existing precedent that squarely governs the specific facts at issue. Finally, the Government argues that the FTCA claims are precluded by the customs exception.
*7 1 A. “New Context” Under Bivens Cases
Officer Hedlund argues that the case currently before the court, which involves a canine U.S. Border Patrol officer responding to defend other officers while a special operation was underway, constitutes a new context with meaningful differences between it and the other Bivens cases decided by the Supreme Court. (Doc. No. 33 at 16-17.) The crux of Defendant’s argument is that the court has to look at this case differently than a run-of-the-mill Bivens case because this happened at the internаtional border. Plaintiff counters that “a claim that Border Patrol agents used excessive force against United States citizens on U.S. soil is a “garden variety” Bivens claim, notwithstanding the fact the incident took place at a customs inspection site. ( See Doc. No. 40 at 18-27.)
In
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics
, the Supreme
Court “recognized for the first time an implied private action for damages against federal
officers alleged to have a violated a citizen’s constitutional rights.”
Ashcroft v.
Iqbal¸
For only the fourth time, the Supreme Court recently considered the availability of
a
Bivens
damages remedy in
Ziglar v. Abbasi
,
A case might differ in a meaningful way because of the rank of the officers involved; the constitutional right at issue; the generality or specificity of the official action; the extent of judicial guidance as to how an officer should respond to the problem or emergency to be confronted; the statutory or other legal mandate under which the officer was operating; the risk of disruptive intrusion by the Judiciary into the functioning of other branches; or the presence of potential special factors that previous Bivens cases did not consider.
Id. at 1860.
If the court determines that a claim presents a new context, then a second step, a special factors analysis, is required to see if the claim mаy proceed. Thus, the Court explained “[t]he Court’s precedents now make clear that a Bivens remedy will not be available if there are “special factors counseling hesitation in the absence of affirmative action by Congress.’” Id. at 1857 (citations omitted). However, the Court acknowledged that although it had not defined what constitutes “special factors counseling hesitation” the inference can be made that the:
Inquiry must concentrate on whether the Judiciary is well suited, absent congressional action or instruction, to consider and weigh the costs and benefits of allowing a damages action to proceed. Thus, to be a “special factor counseling hesitation,” a factor must cause a court to hesitate before answering the question in the affirmative…. [5]
In sum, if there are sound reasons to think Congress may doubt the efficacy or necessity of a damages remedy as part of the system for enforcing the law and correcting a wrong, the courts must refrain from creating the remedy in order to respect the rоle of Congress in determining the nature and extent of federal-court jurisdiction under Article III.
Id. at 1858.
Relatedly, the Court noted that if there was an alternative remedial structure present in a certain case, “that alone may limit the power of the Judiciary to infer a new Bivens cause of action. For if Congress had created ‘any alternative, existing process for protecting the injured party’s interest’ that itself may ‘amount to a convincing reason for the Judicial Branch to refrain from providing a new and freestanding remedy in damages.’” Id. (internal alterations and citations omitted.)
Within the opinion, the Abbasi Court emphasized that it was to be understood that it was not casting:
doubt on the continued force, or even the necessity, of Bivens in the search- and-seizure context in which it arose. Bivens does vindicate the Constitution by allowing some redress for injuries, and it provides instruction and guidance to federal law enforcement officers going forward. The settled law of Bivens in this common and recurrent sphere of law enforcement, and the undoubted reliance upon it as a fixed principle in the law, are powerful reasons to retain it in that sphere.
Id. at 1856-57.
Neither party questions the unassailable proposition that “Congress intended to
afford сustoms officers great latitude in conducting a search at an international border
crossing.”
Klein v. U.S.
,
The court must begin its inquiry by focusing on whether the claims presented are “different in a meaningful way from previous Bivens cases.” Here, the present case has parallels to the Supreme Court’s original Bivens case in that both are predicated on the Fourth Amendment. Plaintiff Jesus Castellanos seeks damages for the alleged use of excessive force and his unlawful detention/false arrest. But clearly, Border Patrol agents operate under different statutory and legal mandates than the FBI agents involved in the original Bivens case. There are also differences between immigration and customs enforcement issues at the border that are absent in traditional law enforcement contexts. And, importantly, the incident oсcurred at the secondary inspection site at the Calexico Port of Entry, on the international border where levels of force, detention and control are more readily employed, and reasonably so, than in a traditional law enforcement setting.
But the differences beg the question, however, as to whether they
fundamentally
differ from the standard law enforcement contact in which an individual is subject to
physical force, detained, or otherwise controlled. Both border enforcement and traditional
law enforcement are cabined by existing Constitutional standards.
See, e.g., U.S. v.
Brignoni-Ponce,
The court now turns to whether this case involves any “special factors” that would
preclude a
Bivens
remedy. Plaintiff Jesus Castellanos seeks damages for the alleged use
of excessive force and unlawful detention/false arrest. Officer Hedlund argues that the
Ninth Circuit has broadly identified “immigration issues as necessarily creating a special
factor counseling hesitation.” (Doc. No. 33 at 18 quoting
Mirmehdi v. U.S.,
*12
1
But, contrary to Defendant’s assertion, the court does not view extending
Bivens
in
this instance and the purported implications regarding national security concerns as a
genuine special factor. As the
Abbasi
court cautioned, “national security concerns must
not become a talisman used to ward off inconvenient claims.”
Abbasi,
As to the remaining special factors, Plaintiff Jesus Castellanos is not challenging any high-level executive branch policies or policymakers, he has only sued the officer who allegedly assaulted him. Extending Bivens here would also not implicate foreign policy because the incident involved American citizens on American soil. And, although both Plaintiffs are bringing claims under the Federal Tort Claims Act, Jesus Castellanos’ legal remedies against Officer Hedlund are limited to Bivens claims because “the Westfall Act is clear [] that the protection afforded federal employees for common law torts ‘does not extend or apply to a civil action against an employee of the Government ... which is brought for a violation of the Constitution of the United States.’ 28 U.S.C. § 2679(b)(2)(A).” Rodriguez , 899 at 740.
In light of the above, the court finds that this case is “therefore like the ones that Abbasi distinguished – those involving ‘standard law enforcement operations’ and individual instances of …law enforcement overreach.” Rodriguez , 899 at 745 (citations omitted). Accordingly, the court concludes that Plaintiff may proceed with his Bivens claims.
B. Qualified Immunity
The doctrine of qualified immunity shields government officials “from liability for
civil damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.”
Wilson v. Lane,
526 U.S. 603, 609 (1999) quoting
Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982). In
determining the applicability of the qualified immunity doctrine, the court conducts a two-
part test to decide: (1) if the alleged facts show a violation of a constitutional right; and
(2) whether the right at issue was clearly established at the time of defendant’s alleged
misconduct.
See Pearson v. Callahan
,
Officer Hedlund argues that he is entitled to qualified immunity for both of Jesus Castellanos’ Bivens claims under either step of the usual analysis performed by a court in cases of this type. (Doc. No.33 at 23-29.)
(1) Excessive Force Claim In relation to the excessive force claim, Officer Hedlund asserts that there is no evidence of a constitutional tort and that Plaintiff cannot show that his Fourth Amendment rights were violated under existing precedent. (Doc. No.33 at 23.)
(i) Constitutional Violation
The Fourth Amendment protects individuals from unreasonable searches and
seizures. It “requires police officers making an arrest to use only an amount оf force that
is objectively reasonable in light of the circumstances facing them.”
Blankenhorn v. City
of Orange
,
Graham v. Connor
,
Generally, excessive force claims are questions of fact for the jury.
Hervey v. Estes
,
Officer Hedlund does not dispute that he punched Jesus Castellanos two times in the
left side before placing the handcuffs on him. (
See
Doc. No. 47; R.I. at 22, 29.) As a result
of the blows, Jesus Castellanos alleges that he suffered multiple rib fractures. Plaintiff also
claims that Officer Hedlund severely and violently twisted his arm during the altercation
and that he suffered an occult fracture to his left elbow. Plaintiff also alleges that he
sustained multiple blows to his torso after the handcuffs were secured. (Jesus Castellanos
*16
1
Dep. 23.) Considering the evidence in the light most favorable to Jesus Castellanos, the
type of force used was intermediate as physical blows were delivered and constituted a
sufficiently serious intrusion upon Castellanos’ liberty interests.
[7]
See Davis v. City of L.A.,
When Defendant Hedlund first began pushing Plaintiff backward, Plaintiff was not being arrested. Rather the family was reentering the United States after a day trip to Mexico. The only reason the Castellanos family was detained in the secondary inspection waiting area was because Marco’s name appeared on the database at primary as someone who was on supervised release for a drug smuggling conviction. Marco had documentation to prove that he had obtained authorization for the visit. Although Jesus Castellanos was handcuffed and later released without any formal charges being brought against him, his refusal to comply with the officers' orders and resistance may have provided a compelling bаsis for the use of force. However, resistance to arrest does not rise to the level of a serious offense under the Graham analysis. See Young , 655 F.3d at 1164–65 (“[W]hile disobeying a peace officer's order certainly provides more justification for force than does a minor traffic offense, such conduct still constitutes only a non-violent misdemeanor offense that will tend to justify force in far fewer circumstances than more serious offenses, such as violent felonies.”). Therefore, because Jesus Castellano was not involved in an underlying crime at the time of his arrest, the severity of the crime at issue is minimal at best.
Officer Hedlund contends that he pushed Jesus Castellanos backward in an attempt
to remove him from the vicinity where Marco and the group of CBP Officers were engaged
in an altercation. (R.I. at 21-22, 28.) Following the incident, Hedlund claimed he did this
out of concern for the other officers’ safety and for Plaintiff’s safety after seeing Jesus
Castellanos move toward his son and because he was physically grabbing officers and
trying to pull them back off his son. (
Id.
at 22.) But such a statement standing alone is
insufficient.
See, e.g., Bryan v. MacPherson
,
Additionally, there is contradictory evidence regarding whether Plaintiff Jesus
Castellano was or was not resisting arrest. While the video shows three CBP Officers
securing handcuffs on Plaintiff Jesus Castellanos, he maintains that he was not resisting
arrest and a clear view of the entire handcuffing procedure is not shown from the video
footage. (
See
Jesus Castellanos Dep. 20-23.) Similarly, amongst the CBP Officers there
are inconsistencies as to whether proper warnings were given, if those warnings were given
in English or in Spanish, and if any officer told Jesus Castellanos that he was being arrested.
(
See generally
R.I.) It is also worth noting that Plaintiff was secured within a caged area,
thus making it unlikely that he was going to escape.
See. e.g., S.B v. Cnty. of San Diego
,
In sum, there are a number of material facts in dispute that call into question whether the actions of Officer Hedlund were reasonable. If a jury believes Jesus Castellanos’ evidence and rejects Defendant’s evidence and version of events, it could find that the events did not play out as Officer Hedlund suggests. In light of all of the evidence and drawing all reasonable inferences in favor of the Plaintiff, a jury could find that Officer Hedlund’s use of force was not objectively reasonable, and, therefore, violated Jesus Castellanos’ Fourth Amendment right against excessive force.
(ii) Clearly Established Right
A government official’s conduct violates a clearly established right when the
“contours of [a] right [are] sufficiently clear that every reasonable official would have
understoоd that what he is doing violates that right.”
Ashcroft v. al-Kidd
,
That means the court must decide if the alleged violation of Jesus Castellanos’
Fourth Amendment right against excessive force “was clearly established at the time of the
officer’s alleged misconduct.”
C.V. by and through Villegas v. City of Anaheim
, 823 F.3d
1252, 1255 (9th Cir. 2016) (citations omitted). In the Fourth Amendment context, the
clearly established inquiry is especially important and “must be undertaken in light of the
specific context of the case, not as a broad proposition because it is sometimes difficult for
an officer to determine how the relevant legal doctrine, here excessive force, will apply to
the factual situation the officer confronts.”
Mullenix v. Luna,
Officer Hedlund argues that there was no evidence or case law providing clear
warning to him that the force used was excessive because he believed he was acting in self-
defense. (Doc. No. 33 at 26-29.) In support, and as clarified at the hearing, Defendant
relies on
Jackson v. City of Bremerton
,
In
Jackson
, the plaintiff was part of a group of individuals fighting with police in a
public park. Plaintiff was sprayed with a chemical irritant, had a knee placed in her back
*20
1
while handcuffs were being placed on her wrists, and was placed in a patrol car where the
officer rolled up the windows and turned up the engine in the July heat.
Jackson
, 268 F.3d
at 652. Subsequently, Jackson discovered she suffered a fractured finger.
Id.
at 650.
Finding Jackson’s own testimony belied her assertion that neither she, nor her friends or
family had verbally or physically threatened the police officers in question, the Ninth
Circuit concluded that the use of force was not excessive.
Id.
at 653. In
Jimenez
, the Ninth
Circuit came to differing conclusions about what kinds of contact are found to be
objectively unreasonable on the part of police officers. 174 Fed. App’x. 399. The Court
of Appeals found: (1) it constitutional for an officer to give a single push to an individual
who was leaning over him when he was trying to arrest a suspect; (2) it unconstitutional
for the same officer to push an unarmed bystander standing 3-4 ft away who suffered severe
injuries as a result; and (3) that although the five punches the officer administered to the
individual being arrested could be viewed as unreasonable, the officer was entitled to
qualified immunity.
Jimenez,
Plaintiff, in turn, relies on
Fontana v. Haskin,
Added to the cases cited by the parties, other Ninth Circuit case law reveals that
passive or minor resistance to arrest alone does not constitute an immediate threat justifying
the use of intermediate force.
See Smith,
Given that facts necessary to decide the issue of qualified immunity are in dispute and finding the circumstances of this case more analogous to those of Blankenhorn and the body of cases that established that the use of intermediate force against an uncompliant arrestee can be excessive, the court finds Officer Hedlund is not entitled to qualified immunity at this time. Accordingly, the court DENIES Officer Hedlund’s motion for summary judgment on the excessive force claim.
(2) The False Arrest Claim As to the false arrest claim, Officer Hedlund disputes that an arrest ever took place “but in response to his false arrest claim, he contends that he had probable cause to arrest Jesus Cаstellanos, and probable cause is a complete defense to a false arrest claim under Bivens. ” (Doc. No.33 at 23.)
“[A] warrantless arrest by a law [enforcement] officer is reasonable under the Fourth
Amendment where there is probable cause to believe that a criminal offense has been or is
being committed.”
Devenpeck v. Alford,
543 U.S. 146, 152 (2004). “If an officer has
probable cause to believe that an individual has committed even a minor criminal offense
in his presence, he may, without violating the Fourth Amendment, arrest the offender.”
Atwater v. City of Lago Vista,
532 U.S. 318, 354 (2001
).
To establish probable cause
“[t]here must be some objective evidence which would allow a reasonable officer to deduce
that a particular individual has committed or is in the process of committing a criminal
offense.”
McKenzie v. Lamb,
Officer Hedlund argues that he is entitled to qualified immunity as to Jesus Castellanos’ false arrest claim because he had probable cause to arrest him under California Penal Code section 148 for willfully resisting, delaying, or obstructing a public officer. (Doc. No. 33 at 24.) In support of his position, he cites the videotape, claiming it is “conclusive evidence” of Jesus Castellanos’ criminal conduct, in that it demonstrates that Mr. Castellanos was interfering and resisting. ( Id .)
But, as set forth above, the facts do not indisputably show that Plaintiff willfully resisted, delayed or obstructed a public officer. Whether or not Jesus Castellanos assaulted Officer Garneau when Officer Hedlund became involved is in dispute and whether or not Officer Hedlund gave any verbal warnings to Jesus Castellanos before he began pushing him backward is also in dispute. Jesus Castellanos maintains that no commands where given, that Officer Hedlund said nothing while he was pushing him backward and that he was talking to his son and trying to diffuse the situation and settle down his son. ( See Jesus Castellano Dep. 18, 19, 23; Marco Castellanos Dep. 11.) In contrast, Officer Hedlund reported that “he gave commands to Jesus Castellanos in English and told him in Spanish ‘Tome asiento’ (Take a seat). CBPO Hedlund said Jesus Castellanos was listening but did not comply with commands given and kept flailing his arms,” and that he verbally commanded Jesus Castellanos to “back up.” (R.I. at 22, 28, Doc. No. 47.) Officer Hedlund also reported not recalling any other specific commands he gave Jesus Castellanos. ( Id. at 28.) The video does not capture what commands, if any, where given to Jesus Castellanos and there is no clear image of the precise interaction between him and Officer Garneau.
In sum, the statements of Jesus Castellanos directly contradict those of Officer
Hedlund. A reasonable jury could believe Jesus Castellanos’ version of the facts and
conclude that probable cause did not exist for the arrest. Viewing the evidence in the light
most favorable to Jesus Castellanos, the court concludes that there are there are triable
issues of fact as to whether Officer Hedlund had probable cause to arrest Plаintiff for a
violation of section 148(a). Summary judgment on this claim is therefore not warranted.
Furthermore, the court cannot find that Officer Hedlund’s decision to arrest Jesus
Castellanos was objectively reasonable or the result of a reasonable mistake.
See
Rosenbaum v. Washoe Cnty.
,
C. FTCA Claims The Government claims that the Customs exception set forth in U.S. Code § 2680(c) applies to Plaintiffs’ FTCA claims and, therefore, this court lacks subject matter jurisdiction. (Doc. No. 33 at 29-32.) Specifically, the Government asserts that the exception applies because Plaintiffs’ claims arise from the detention and inspection of their vehicle and Officer Martinez’s attempt to detain and inspect Marco’s phone. Plaintiffs counter that this exception does not apply because their claims do not arise out of the inspection, seizure, or detention of goods. (Doc. No. 40 at 27-30.)
Section 28 U.S.C. 2680(c) of the FTCA bars:
any claim arising in respect to the assessment or collection of any tax or customs duty, or the detention of any goods, merchandise, or other property by any officer of customs or excise or any other law enforcement officer. 28 U.S.C. 2680(c).
The Supreme Court has interpreted the statutory language of section 2680(c) to
encompass “
all
injuries associated in any way with the ‘detention’ of goods,” including
claims for negligence.”
Kosak v. U.S.
, 465 U.S. 844, 854 (1984) (emphasis added).
However, “after §2680(c) was enacted, Congress added an amendment to § 2680(h),
permitting recovery for various intentional torts when committed by an ‘investigative or
law enforcement officer,’ including the intentional inflection of emotional distress.”
Gasho
v. U.S.
,
Section 2680(h) provides that the FTCA’s waive of immunity does not apply to: Any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights: Provided, That, with regard to acts or omissions of investigative or law enforcement officers of the United States Government, the provisions of this chapter and section 1346(b) of this title [i.e., the waiver of immunity] shall apply to any claim arising, on or after the date of the enactment of this proviso, out of assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution. For the purpose of this subsection, “investigative or law enforcement officer” means any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law.
28 U.S.C. § 2680(h).
Thus, the Ninth Circuit has stated that “§§ 2680(c) and 2680(h) must be interpreted in a manner that reconciles them, without doing violence to either.” Gasho , 39 F.3d at 1433.
For a claim to be barred the government make first demonstrate that the custom agent’s conduct falls within the scope of activities exempted in § 2680(c). Gasho , 39 F.3d at 1433. If the government successfully does this, then the claims are barred. “If the government fails to show that the tortious conduct is exempt, the plaintiff's claim is not barred, assuming the plaintiff demonstrates that an “investigative or law enforcement officer” committed the intentional tort.” Id.
At the time of the incident, Plaintiffs were away from their vehicle and the ensuing
confrontation stemmed from Plaintiffs’ son’s use of a cell phone in the secondary
inspection waiting area. When Marco did not immediately comply with Officer Martinez’s
demand to turn over the cell phone the situation escalated. However, the alleged assault
on Jesus Castellano occurred while border patrol officers were in the process of detaining
him, a person, and had nothing to do with the inspection of the family’s vehicle. “The
Customs exception in § 2680(c) does not bar an intentional tort claim arising out of arrests
by Customs agents, as the exception applies only to the detention of goods and
merchandise, not persons.”
Gasho,
IV. CONCLUSION
For the reasons set forth above, Defendants’ motion for summary judgment (Doc.
No. 33) is DENIED .
IT IS SO ORDERED.
Dated: February 10, 2020
Notes
[1] Document numbеrs and page references are to those assigned by CM/ECF for the docket entry.
[2] Plaintiffs included excerpts of the deposition transcript of Jesus Castellanos in support of their opposition, Doc. No. 40-3. For ease of reference the court has simply referred to the 27 full transcript supplied by the Defendants, Doc. No. 33-5, and has changed the citations to the appropriate CM/ECF page number.
[3] Within the papers, the parties make references to “Plaintiffs’ Bivens claims,” but it is only Mr. Jesus Castellanos who has any Bivens claims currently before the court. ( See SAC at ¶¶ 36-60.) Within the SAC, Mr. Castellanos brought two separate causes of action that were identified as Bivens claims, one for excessive force and one for unlawful detention/false arrest. ( See id.) Therefore, the court will treat these causes of action as two independent claims, and refer to them as being brought solely by Mr. Castellanos.
[4] In
Bivens¸
the plaintiff whose apartment was entered by Federal Bureau of Narcotics
Agents acting under claim of federal authority was arrested for alleged narcotics violations.
23
Bivens,
[5] The Supreme Court also explained that the decision to recognize a damages remedy
requires an assessment of its impact on government operations systemwide. Those matters
include the burdens on Government employees who are sued personally, as well as the
projected costs and consequences to the Government itself when the tort and monetary
liability mechanism of the legal system are used to bring about the proper formulation and
implementation of public policies. These and other considerations may make it less
probable that Congress would want the Judiciary to entеrtain a damages suit in a given
case.
Abbasi,
[6] Defendant’s reliance on
Perez v. Diaz
, 331 F.Supp.3d 1101 (2017) and
Hernandez v.
20
Mesa
,
[7]
Cf. Young v. Cnty. of L.A.,
[8] In doing so the Ninth Circuit explained “that because of plaintiff’s initial resistance, lack
25
of serious injury, and the fact that he was not yet handcuffed when punched and thus posed
at least a minimal threat, “we cannot conclude that a reasonable officer would have had
26
‘fair notice’ under existing caselaw that ‘the force employed was unlawful, and that any
27
mistakes to the contrary would have been unreasonable.”
Jimenez,
[9] In so finding, the court has declined to broadly read the Customs exception to apply to all actions tangentially related to a customs agent’s official duties thereby insulating the Government from liability. See, e.g., Snyder & Assocs. Acquisitions LLC, v. U.S., 859 F.3d 1152, 1159 (9th Cir. 2017) (noting that although Section 2680(c) has expansive reach it did not give the IRS absolute immunity, concluding: “Section 2680(c)’s exception to the waiver of sovereign immunity is broad, but it is not unlimited, and the government’s all- encompassing view of it cannot be squared with the statutory text. By its terms, the exception shields only actions taken in connection with efforts to assess or to collect taxes, which were not involved in this case.”) .