TED STEWART, District Judge.
This matter is before the Court on Defendant's Motion to Dismiss. For the reasons set forth more fully below, the Court will grant in part and deny in part.
The following facts are taken from the Complaint and are assumed to be true for purposes of this Motion.
In 2006, FBI and Bureau of Land Management agents ("Defendant's agents") began a joint investigation into the looting of Native American artifacts on public land. The operation, dubbed "Cerberus," culminated in the arrest of several alleged traffickers in stolen artifacts in Blanding, Utah, including Dr. James Redd and his wife Jeanne Redd. Dr. Redd had been a physician in Blanding for over thirty years, was well known and respected, and was an active participant in his church. At the time of the raid, he was sixty years old.
To assist in their operation, Defendant's agents hired Ted Gardiner, a Native American artifacts dealer and collector, who was working as an undercover informant. Gardiner had a reputation for selling artifacts at inflated prices, and had mental health and substance abuse issues of which Defendant's agents was aware. Gardiner had told Defendant's agents that major "kingpins" of artifact trafficking were operating in Southern Utah, and that he had experience dealing with the individuals. Gardiner was then directed by Defendant's agents to transact with suspected traffickers. Based on information provided by Mr. Gardiner, a grand jury indicted the Redds on felony charges of trafficking in stolen artifacts, theft of government property, and theft of tribal property. The Indictment contained six counts, but only one was against Dr. Redd, charging that both he and Jeanne illegally possessed a "bird effigy pendant." Arrest warrants were issued for Dr. Redd and Jeanne Redd, as well as a search warrant for their home ("the Redd warrants").
Gardiner had valued the bird effigy pendant at $1,000, which, according to Plaintiffs, provided the basis for issuance of a felony warrant rather than a less serious charge. Plaintiffs contend that the pendant in fact came from private land and was therefore legal to possess, and that Gardiner's valuation of the pendant was grossly inflated. Plaintiffs do not clarify how Gardiner actually valued the pendant. Though the Indictment only accuses the Redds of jointly possessing the pendant illegally (whereas it accused Mrs. Redd individually of exchanging other illegal items), Plaintiffs' briefing seems to assume that the Redds were accused of giving other illegal artifacts to Gardiner in exchange for the pendant. Thus it is not clear whether Gardiner based his valuation on the items allegedly exchanged, or merely on his knowledge of artifacts generally.
Defendant's agents arrived at Dr. Redd's home in Blanding, Utah around 6:45 a.m. on June 10, 2009. Dr. Redd was driving home from an early-morning errand when he saw over 100 officers on his property in "paramilitary gear." After Dr. Redd parked in his driveway, agents charged at him and pulled him out of his car at gunpoint. Dr. Redd was then handcuffed and taken into his garage where he was interrogated for four hours.
Defendant's agents searched the Redd's home for twelve hours. The bird effigy pendant was never discovered. Officers did, however, take other supposed Native American artifacts belonging to the Redds. One hundred and forty officers participated in the search over the course of the day. Many of the items seized by the agents had no relationship to the crimes for which the Redds were indicted, including personal items like journals, as well as artifacts that were Meso-American and therefore not illegal to possess. Some of the items seized have not been returned to the Redds.
The day after the raid, Dr. Redd committed suicide. His suicide note mentions the raid and its effect on him.
Plaintiffs now bring a variety of tort claims against the United States under the Federal Tort Claims Act ("FTCA").
Defendant has moved to dismiss under both 12(b)(1) and 12(b)(6). Where jurisdictional questions are intertwined with the merits of the case, the Court must convert a 12(b)(1) motion into one under 12(b)(6), or into a motion for summary judgment.
In considering a motion to dismiss for failure to state a claim upon which relief can be granted under Rule 12(b)(6), all well-pleaded factual allegations, as distinguished from conclusory allegations, are accepted as true and viewed in the light most favorable to Plaintiffs as the nonmoving party.
Plaintiffs have alleged (1) negligence, (2) malicious prosecution, (3) abuse of process, (4) false arrest, (5) false imprisonment, (6) intentional infliction of emotional distress, (7) wrongful death, and (8) trespass to chattels, conversion and replevin against the United States under the FTCA.
The FTCA partially waives the United States's sovereign immunity from tort liability. Under the act, the United States is liable for certain torts "in the same manner and to the same extent as a private individual under like circumstances."
Application of this exception requires two steps. The first step asks whether the challenged conduct is "discretionary." The Supreme Court has explained:
If the Court determines that the conduct in question does involve some amount of discretion or judgment, the Court then must determine if the judgment is
Defendant has argued that (1) Plaintiffs have identified no policy that governs the conduct Plaintiffs focus on and (2) that "[d]ecisions concerning whether, when, against whom, and how to enforce compliance with the Archaeological Resources Protection Act, as well as how to deter misconduct in others, necessarily reflect the policy-based judgments of federal officials."
Defendant characterizes Plaintiffs' claims as based on five categories of government conduct: (1) the identification and valuation of evidence for investigation; (2) the use of an informant in a criminal investigation; (3) the identification of evidence for the grand jury; (4) execution of the search and arrest warrants; and (5) the scope of the seizure and detention of potential evidence. As a general matter, courts tend to hold that these kinds of government actions are quintessential discretionary conduct.
Plaintiffs respond by emphasizing that their baseline contention is that some of Defendant's conduct during the Cerberus process violated the Constitution and, as a result, was nondiscretionary. It is widely accepted that law enforcement officers do not have discretion to violate the Constitution.
Under this provision, to the extent the Court finds that any of Plaintiffs' claims are predicated on the FBI or BLM's negligent or wrongful handling of the Redd's property, the Court must dismiss the claim.
With these principles in mind, the Court will consider each of Plaintiffs' claims.
Plaintiffs' negligence claims fall into three categories: (1) negligence during the investigation of the Redds; (2) negligence during the execution of the Redd warrants; and (3) negligence in the handling of Dr. Redd's property after it was seized. This Section addresses the first two categories. The post-raid negligence claims are analyzed in Section D infra.
Plaintiffs' investigatory negligence claims allege that Defendant had and breached a duty to (1) "exercise its undercover operations . . . with reasonable care"; (2) "properly identify the origin of artifacts in order to legitimately allege criminal conduct by potential criminal defendants"; and (3) "objectively value artifact prices to ensure that alleged charges, particularly felony charges, were properly categorized as such and legitimately alleged."
"The decision on how to investigate, who to investigate and how to present evidence to the proper authorities are classic examples of discretionary conduct."
Plaintiffs further allege that Defendant's agents had and breached the following duties when executing the Redd warrants: (1) "to utilize force commensurate with the threat presented by arrest targets"; (2) "to refrain from making inappropriate threats to arrestees"; and (3) "to seize relevant items to the investigation."
The Court understands these claims to be that (1) the government used too much force during the raid; (2) the government inappropriately threatened Dr. Redd with the loss of his medical license; and (3) the government inappropriately seized evidence not related to the alleged crimes.
The Court notes that this same conduct by Defendant's agents underlies Plaintiffs' intentional tort claims. The Court will therefore address whether that conduct was discretionary in its consideration of the intentional torts allegations below.
Plaintiffs have alleged malicious prosecution, abuse of process, false arrest, false imprisonment, intentional infliction of emotional distress, and wrongful death against Defendant. Each of these claims is founded on some combination of the following allegations: (1) that Defendant's agents trained Gardiner to inflate the value of artifacts he appraised in order to fabricate probable cause for felony violations; (2) that Defendant's agents used excessive force against Dr. Redd; and (3) that Defendant's agents interrogated Dr. Redd for too long and made inappropriate statements during the interrogation. The Court will consider whether this conduct is protected by the discretionary function exception.
Plaintiffs make the following allegations with respect to Defendant's agent's interactions with Gardiner:
In Crow v. United States,
Accordingly, the court held that "to the extent plaintiff claims the postal inspectors falsified their reports and memoranda and gave false testimony so as to bring about plaintiff's prosecution, plaintiff's action is not barred by the discretionary function exception to the Federal Tort Claims Act."
Plaintiffs' attempts to show that Gardiner was a poor choice for informant and that agents failed to further research the origins of the artifacts to make certain they were illicit clearly fall into the "how to investigate" category which Crow found was barred by the discretionary function exception. Persuaded by Crow's reasoning, the Court therefore finds that this conduct was discretionary.
On the other hand, Plaintiffs' allegations that Defendant's agents directed Gardiner to artificially raise the value of artifacts and then relied solely on his valuations, all so that they could have a basis for seeking a felony indictment, fits into the category of behavior that Crow found to be non-discretionary. Furthermore, though Crow did not frame this issue as a constitutional question, the Court would note here that if Defendant's agents deliberately falsified information in order to show probable cause in their warrant application, such conduct would violate the Fourth Amendment and would therefore be nondiscretionary.
However, the Court finds that Plaintiffs' allegation that Gardiner intentionally overvalued the pendant is implausible, and therefore not well-pleaded. The Redds were indicted for "receiv[ing], conceal[ing], and retain[ing] property belonging to an Indian tribal organization, with a value of more than $1,000 to wit: an effigy bird pendant, knowing such property to have been embezzled, stolen, or converted."
The Court finds that Jeanne Redd's admission that the pendant was worth $1,000 makes it implausible that Gardiner, at least in this instance, employed a fraudulent method of valuation in declaring that the pendant was worth $1,000. Jeanne Redd, in entering her plea, was required to convince the judge that she actually committed the crime to which she pleaded guilty. The Court cannot ignore the reliability of such a statement. Accordingly, the Court finds Plaintiffs' allegation that Gardiner employed a deliberately inaccurate method of valuation for the bird effigy pendant implausible, and will not accept it as true.
This finding undermines most of Plaintiffs' intentional tort claims. The malicious prosecution and abuse of process claims rest entirely on the allegation that Defendant's agents unconstitutionally coached Gardiner to falsify his valuations. Plaintiffs' false arrest and false imprisonment claims are primarily based on the allegation that the Redd warrants were invalid for lack of probable cause. Finally, Plaintiffs' intentional infliction of emotional distress claim is based in part on the allegation that Defendant's agents decided to indict Dr. Redd even though they lacked probable cause. Because the Court does not accept Plaintiffs' allegation that probable cause was fabricated, the Court finds that all of the challenged conduct was discretionary. Therefore, the Court will deny these claims, to the extent they rely on that conduct, for lack of subject matter jurisdiction.
Plaintiffs have also claimed intentional infliction of emotional distress and wrongful death based on the Defendant's agents' alleged use of excessive force against Dr. Redd. The decision of how to execute an arrest warrant is quintessential discretionary conduct.
Plaintiffs make two distinct excessive force claims. One focuses on the decision to use the amount of force that was employed, arguing that the dispatch of 100 heavily armed agents amounts to an excessive show of force not reasonable under the circumstances. The other focuses on the actual conduct of the agents during the raid.
As to the first contention, the Tenth Circuit has held that the decision of what amount of force to use to execute a warrant is governed by the Fourth Amendment, so that if the degree of force decided upon is unreasonable, the Fourth Amendment is violated.
Accepting as true Plaintiffs' allegation that 100 plus heavily armed officers were sent to arrest Dr. Redd and search his home, which the Court must, the Court finds that the decision to use that amount of force was unreasonable and therefore nondiscretionary.
Considering the use of a SWAT team to execute an arrest warrant in Holland ex rel. Overdorff v. Harrington, the Tenth Circuit has stated that "[t]he decision to deploy a SWAT team to execute a warrant necessarily involves the decision to make an overwhelming show of force—force far greater than that normally applied in police encounters with citizens."
In sum, the overwhelming show of force alleged was a serious intrusion into Dr. Redd's privacy, and it is not clear to the Court that a governmental interest justified its use. Accordingly, based on the facts alleged in the Complaint, the Court finds that the decision to employ the force used against Dr. Redd was unreasonable, and therefore nondiscretionary.
Though Defendant has argued that Plaintiff's Complaint fails to state a claim for relief in its entirety, Defendant has not provided any argument on that point specific to Plaintiff's claims for intentional infliction of emotional distress or wrongful death. The Court will therefore not consider those issues here. The Court will deny the motion to dismiss as to Plaintiff's intentional infliction of emotional distress and wrongful death claims, to the extent they rely on Defendant's agents' decision to use the amount of force employed against Dr. Redd, on the grounds that the discretionary function exception does not apply.
As to the second basis for Plaintiffs' excessive force claims—the conduct of the agents during the raid—Plaintiffs allege that Dr. Redd returned home from an early morning errand on the day of the raid to find over 100 agents on his property. "Rather than turning around to flee, Dr. Redd continued down the driveway and parked."
The Court finds that this force was not excessive. "The right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it."
Accordingly, the Court finds that the force used by Defendant's agents during the raid was not excessive. The discretionary function therefore bars Plaintiffs' intentional infliction of emotional distress claim and wrongful death claims to the extent they rely on that conduct.
Finally, Plaintiffs have alleged that Defendant's agents violated the Constitution by interrogating Dr. Redd for too long and by threatening him with the loss of his medical license during the interrogation. These allegations are made in support of the intentional infliction of emotional distress, false arrest, and false imprisonment claims.
"Just how law enforcement agents are to conduct interrogations would appear to be a paradigmatic example of a discretionary function. The process is one that involves elements of judgment and choice—the central ingredients of discretion."
The Court reaches the same conclusion with respect to the agents threatening Dr. Redd with the loss of his medical license. Even if officers grossly exaggerate the potential consequences of a conviction (which does not appear to be the case here), such an exaggeration is an abuse of discretion, and therefore barred by the discretionary function.
Plaintiffs have also alleged trespass to chattels, replevin, and conversion against Defendant. Under these claims, Plaintiffs attempt to impose liability on Defendant based on Defendant's agent's seizure and continuing detention of Dr. Redd's property. Defendant argues that these claims are barred by the detention of goods exception.
The detention of goods exception bars "[a]ny claim arising in respect of 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."
In Kosak v. United States,
Plaintiffs contend that Kosak's reasoning does not apply here. Plaintiffs note that Kosak defined the objective of the detention of goods exception as "ensuring that `certain governmental activities' not be disrupted by the threat of damage suits; avoiding exposure of the United States to liability for excessive or fraudulent claims; and not extending the coverage of the Act to suits for which adequate remedies were already available."
In Ali, plaintiffs had argued that § 2680(c) applied "only to law enforcement officers enforcing customs or excise laws, and thus does not affect the waiver of sovereign immunity for his property claim against officers of the Federal Bureau of Prisons (BOP)."
Plaintiffs' claim is essentially that the detention of goods exception should not apply to FBI/BLM officers because they perform different functions than customs officials. However, in light of Ali's finding that the exception bars suit against all law enforcement officers, no matter what type of law they are enforcing, the Court cannot see how the exception does not apply here, despite any differences of function between Defendant's agents. Accordingly, the Court will dismiss Plaintiffs' conversion, trespass to chattels, and replevin claims for lack of subject matter jurisdiction.
The same analysis is applicable to Plaintiffs' negligence claim based on Defendant's alleged breach of a duty to "seize relevant items to the investigation"
In light of the foregoing, the Court finds that Plaintiffs' malicious prosecution, abuse of process, false arrest and false imprisonment claims are barred in their entirety by the discretionary function exception. The Court further finds that Plaintiffs' intentional infliction of emotional distress and wrongful death claims are barred to the extent they rely on the conduct of Defendant's agents during the raid, but are not barred to the extent they rely on the allegation that Defendant's agents dispatched 100 plus heavily armed officers to execute the Redd warrants. Finally, the Court finds that the detention of goods exception bars Plaintiffs' conversion, trespass to chattels, replevin, and post-raid negligence claims. It is therefore
ORDERED that Defendant's Motion to Dismiss (Docket No. 19) is GRANTED IN PART AND DENIED IN PART.