Opinion
Civil Action No. 99-3494
December 16, 2002
ORDER AND REASONS
Before this Court is a Motion for Summary Judgment brought by the defendant, the United States of America. The United States moves that this Court grant summary judgment as to the plaintiffs Federal Tort Claim on the ground that the two federal officers, David Drasutis, and Eric Covell, provided external security outside of the residence being searched, and did not enter it, participate in the raid, or commit any of the alleged tortious conduct. The United States contends that no genuine issue of material issue of fact exists as to its liability because none of the plaintiffs can identify David Drasutis or Eric Covell as officers who engaged in the alleged torts. Having considered the parties' pleadings and exhibits, together with the relevant law, the Court DENIES the United States' motion for summary judgment because the plaintiffs have created an issue of fact as to whether the agents were in the apartment and participated in the raid.
BACKGROUND
This case arises from circumstances surrounding the execution of an arrest and search warrant for Lawrence Blunt by a law enforcement team, consisting of officers from the New Orleans Police Department, the Louisiana State Police, St. Bernard Parish Sheriffs Office and the federal Drug Enforcement Administration. During the execution of the warrant, the officers allegedly entered the wrong apartment. Unbeknownst to the officers, the house located at 2658 Athis Street, the address on the search warrant, had been split into three apartments. Plaintiffs in the instant matter occupied the upstairs apartment. The officers initially entered the upstairs apartment, mistaking it for Lawrence Blunt's apartment, which was located downstairs.
When the raid occurred, the plaintiffs, Anita Lawrence, Barbara Jean Rose, Raymond "Ricky" Michael Lawrence, and Cheryl McKennies, resided in the upstairs apartment at 2658 Athis Street. Hereinafter, the Court will refer to the plaintiffs collectively as "the plaintiffs" or will refer to each plaintiff my name when describing events concerning that individual.
According to the depositions, some of the officers remained outside the house to secure the door-ways, while others made a dynamic entry, kicking in the door to the upstairs apartment. Once inside, the plaintiffs' allege that the officers arrested, interrogated, searched, and harassed the four plaintiffs even after they: (1) knew they had entered the wrong apartment, (2) questioned plaintiffs as to the identity and whereabouts of Blunt, and (3) were assured that Blunt was not in that apartment. For example, Anita Lawrence testified that the officers: (1) gained entry into her apartment by kicking in the front door, and while inside kicked in the den door, a door between the kitchen and the den, and the back bedroom door, (2) grabbed her by the collar, demanded that she put her hands behind her, and flung her to the floor causing her to slide into a wall and hit her head, (3) put a flashlight in her brother, Ricky Lawrence's, face while pulling his hair, demanding that he identify Blunt as the man in a photo they were showing him, (4) continued to search the home even when they knew they were in the wrong apartment, and (5) left all four plaintiffs handcuffed in their apartment while they went to find Blunt in the downstairs apartment.
Lawrence Blunt was subsequently found in a downstairs apartment and arrested on a drug charge.
Similarly, plaintiff Cheryl McKennies testified that the officers: (1) verbally abused her and the other plaintiffs while they laid handcuffed on the floor, (2) left plaintiffs handcuffed for about an hour while they searched for Blunt in the correct apartment, (3) went through her drawers and opened boxes throughout her room, and (4) caused injury to her head and mental pain and anguish. All of the plaintiffs maintain that the entire search took approximately two and a half hours.
Plaintiffs allege that defendants David Drasutis and Eric Covell were present and participated in the events described above. Because both Drasutis and Covell are DEA agents, the United States is potentially liable under the Federal Tort Claims Act, if the actions of the federal amounted to violations of state law.
ANALYSIS
A. Standard of Review for a Motion for Summary Judgment:
Summary judgment should be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Substantive law determines the materiality of facts, and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The moving party "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] . . . which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp v. Catrett, 477 U.S. 317, 323 (1986). Once the movant meets this burden, the burden shifts to the non-movant "to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322. "[M]ere allegations or denials" will not defeat a well-supported motion for summary judgment. Fed.R.Civ.P. 56(e). Rather, the non-movant must come forward with "specific facts" that establish an issue for trial. Id.
When deciding a motion for summary judgment, the Court must avoid a "trial on affidavits. Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts" are tasks for the trier-of-fact. Anderson, 477 U.S. at 255. To that end, the Court must resolve disputes over material facts in the non-movant's favor. "The party opposing a motion for summary judgment, with evidence competent under Rule 56, is to be believed." Leonard v. Dixie Well Service Supply, Inc., 828 F.2d 291, 294 (5th Cir. 1987).
B. Contentions of the parties:
The United States argues in its motion that the depositions of the four plaintiffs and the depositions of Drasutis and Covell show that "plaintiffs have no evidence to controvert Drasutis' and Covell's sworn affidavits and testimony that neither of them were involved in the actual search and seizure." The Government submits the following deposition testimony to show that none of the plaintiffs can prove that either federal officer was involved in the search and seizure or the alleged torts.
Anita Lawrence
Q: Now, I want to do it as to both of them, as to whether Eric Covell or David Drasutis kicked you.
A: Kicked me?
Q: Pointed a gun at you?
A: I can't say that either one of these gentlemen did or didn't do anything to me.
Dep. of Anita Lawrence, p. 12.
Raymond Michael Lawrence
Q: Did either Agent Covell or Agent Drasutis rip your shirt?
A: I don't remember which one did it.
Q: Do you recognize those to be the men?
A: I don't recognize either one of them.
* * *
Q: And you don't know who handcuffed you?
A: No, ma'am.
Dep. of Raymond Michael Lawrence, p. 14.
Cheryl McKennies
Q: Ms. McKinnies (sic), do you today recognize either Agent Drasutis or Agent Covell?
A: No.
Q: As far as you know, have you ever seen them before?
A: No.
Dep. of Cheryl McKennies, p. 6-7.
Barbara Jean Rose:
Q: Ms. Rose, Agent Drasutis is still sitting here and you saw Agent Covell before he left. Do you recognize them?
A: Vaguely, I remember seeing him because I remember him coming back for his flashlight.
Q: Do you remember him during the time of the incident, prior to that?
A: No, I don't remember him during the incident.
Dep. of Barbara Jean Rose, p. 7-8.
The United States contends that the plaintiffs are unable to identify Drasutis or Covell, and therefore, they cannot contradict the United States' assertion that the federal officers were not involved in the search and the alleged torts.
The plaintiffs argue that at least one of the agents, Drasutis, was present during the search. They allege that Drasutis entered the upstairs apartment during the search. The plaintiffs submit the following deposition testimony of New Orleans Police Detective Michael Harrison to create an issue of fact:
Q: Do you recall whether Special Agent David Drasutis was with you in the upstairs premise at any time?
A: I think his name is Drasutis.
Q: Ok.
A: But, yes, he did enter with us when we entered upstairs. I'm not certain if he came downstairs or if he remained upstairs until he was release.
Dep. of Sergeant Michael Harrison, p. 68. Detective Harrison further testified that Agent Covell was also present:
Q: Do you recall there being any other federal agents with you at the time of the raid on November 18, 1998?
A: I think the Drug Enforcement Agency was the only agency represented, the only federal agency, and there may have been one more from D.E.A.
Q: Do you recall the name of Eric Covell as being the D.E.A. agent?
A: That sounds familiar. It could be.
Q: Do you recall the D.E.A. agent being physically within the residence of 2658 Athis?
A: At some point he was there with us. Yes.
Dep. of Sergeant Michael Harrison, p. 68-70. Barbara Jean Rose also testified that Agent Covell was upstairs during the search.
Barbara Jean Rose
Q: And you wouldn't recognize them as Covell and Drastutis (sic); is that correct?
A: But I remember the one who was here. What's his name? Covel(sic)?
Q: Yes.
A: I remember seeing him come upstairs, and he may have been the one who remarked about the house being so large.
Dep. Barbara Jean Rose, p. 13.
In addition to their contention that officers Drasutis and Covell were involved in the search, the plaintiffs assert that Agents Drasutis and Covell should have known that the residence contained multiple dwellings, and for this reason it was unreasonable for them to continue with the search without further investigation. The plaintiffs offer deposition testimony that suggests that there were multiple entrances and gas meters that should have put the officers on notice that the residence contained apartments and was not a single family dwelling.
Eric Covell
Q: Would you agree that there were two entrances at the front of the house?
A: There were two — there were two ways to enter the house.
Dep. of Agent Eric Covell, p. 53.
David Drasutis
Q: And to enter the rear of the house you would have had to pass the left side of the house containing two gas meters and two electric meters; is that correct?
A: If that equipment was there at the time, on November 18, and if I would have gone along the left side of the house and if that is indeed along the left side of the house, yes it would have been passed along my right-hand side as I was going towards the rear of the house.
Dep. of David Drasutis, p. 29.
Finally, the plaintiffs argue that even if it was reasonable for them to search the house, the search and confinement of the plaintiffs became unreasonable when the plaintiffs informed the officers that Lawrence Blunt lived downstairs. The plaintiffs presented evidence that they told the officers in the apartment repeatedly that Lawrence Blunt lived downstairs.
Barbara Rose:
A: The officer was showing him [Picky Lawrence] the picture [of Lawrence Blunt]. . . He put the picture finally where Ricky could see it, and he asked him who was it and Ricky said he didn't know. From my vantage point I could see the picture, and I said, "It's not Ricky." Although Ricky had told him like six or seven times it was not him. I said it wasn't Ricky, that it was Lawrence Blunt. And he brought the picture to me and asked me could I identify the person and I said, "Yes, that's Lawrence Blunt. He lives downstairs." So that's when they went in the back and got Ricky's identification.
* * *
A: I'm not sure which one went and go the [identification] . . . I know one of them went in the back, but I know the one from New Orleans, I saw him with it in his hand, and he said, "Oh, fuck. I think we're in the wrong house."
* * *
A: [L]ike I said before he, left, his response was, "Oh, fuck, I think were in the wrong place. He left out, went downstairs, went outside, came back into the apartment and told all the rest of the officers that were in the apartment. . . . [they were] in the wrong place." They then picked Anita, Ricky and Cheryl up off the floor and sat them in a chair. They still didn't unhandcuff us. They went-as a matter of fact, they continued to search a little bit in the two rooms where we were and the room that I could see them going into, they continued to search.
Dep. of Barbara Jean Rose, p. 26.
All of the plaintiffs testified in their affidavits that the entire search lasted approximately two and one half hours. See affidavits of plaintiffs Barbara Jean Rose, Raymond Michael Lawrence, Cheryl McKennies, and Anita Lawrence.
The Court finds the plaintiffs' evidence sufficient to create a genuine issue of material fact. The testimony of Detective Harrison creates a genuine issue of material fact as to whether Drasutis and Covell were in the upstairs apartment and participated in the alleged torts. The evidence illustrating that the residence was a multiple dwelling also creates an issue as to whether it was reasonable for the federal agents to continue with the search without checking to make sure they were going to search the right apartment. The Court must now turn to the issue of whether the mere presence of the officers at the rear of the house and in the upstairs apartment creates an issue of fact as to whether, through the acts or omissions of Drasutis and Covell, the United States is liable for the intentional torts-false imprisonment, assault, or battery. Because of their participation in the search and detention of the plaintiffs, they may be liable to the plaintiffs as joint tortfeasors.
C. The FTCA Claims
Under 28 U.S.C. § 1346 (b), the United States may be held liable for negligent or wrongful acts by federal employees committed while acting within the scope of their employment. 28 U.S.C. § 1346 (b). Under the FTCA, the United States is liable for the negligence of its employees "in the same manner and to the same extent as a private individual under like circumstances . . ." Crider v. United States, 885 F.2d 294, 296 (5th Cir. 1989). Congress enacted the FTCA in order to waive "the Government's immunity from actions for injuries to person and property occasioned by the tortious conduct of its agents." Sutton v. United States, 819 F.2d 1289, 1293 (5th Cir. 1987) (quoting Dalehite v. United States, 346 U.S. 15, 27-28 (1953)). The United States "assume[s] the obligation to pay for damages for the misfeasance of employees in carrying out its work," not its individual agents. Id.
28 U.S.C. § 1346(b) states that "district courts . . . shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages for injury or loss of property, or personal injury or death caused by negligent or wrongful act or omission of any employee of the government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred."
In determining whether a "private person" would be liable, and hence whether the United States will be liable under the FTCA, courts look to the law of the state "where the act or omission occurred." 28 U.S.C. § 1346(b); see Crider, 885 F.3d at 296. Accordingly, the principals of Louisiana tort law apply in this case.
FTCA analysis requires the Court to look at "like circumstances" under which a private individual would be liable under state law. This means that the Court must search out analogous situations which best articulate the state's negligence law, and its review is not limited to laws applying solely to the duties of law enforcement officers. Crider, 885 F.2d at 296.
In this case the plaintiffs are suing the United States for false imprisonment, assault, and battery. After searching through the Louisiana Civil Code and relevant portions of the Louisiana Code of Criminal Procedure, the following areas constitute "like circumstances" in which a private individual may be liable:
1. False imprisonment has essential elements: (1) detention of a person; and (2) the unlawfulness of such a detention." Ross v. Sherff of LaFourche Parish, et al., 479 So.2d 506, 510 (La.App. 1st Cir. 1985) (quoting Fontenot v. Lavergne, 365 So.2d 1168 (La.App. 3rd Cir. 1978)). "Unlawful detention is restraint without color of legal authority." Id. If an officer reasonably believes that she is justified in making the arrest, then she has sufficient "color of legal authority" to shield her from liability for false arrest. Ross v. Sheriff of Lafourche Parish, et al, 479 So.2d 506, 510 (La.App. 1st Cir. 1985); see Mitchell v. Windham, 469 So.2d 381 (La.App. 3d Cir. 1985).
2. Louisiana law defines battery by a police officer, as "physical attack of a private citizen by a police officer absent a valid arrest." Ross v. Sherff of LaFourche Parish, et al., 479 So.2d 506, 510 (La.App. 1st Cir. 1985); Norrell v. City of Monroe, 375 So.2d 159 (La.App. 2d Cir. 1979); Malone v. Fields, 335 So.2d 538 (La.App. 2d 1976). Ordinarily, the use of reasonable force to restrain an arrestee, protects a police officer from liability for assault or battery. Ross, 479 So.2d at 511; see La. Code of Crim. Proc. 220.
3. Pursuant to Civil Code article 2324, and settled case law, joint tortfeasors are deemed solidary obligors, even though their concurrent negligence results from different acts or breaches of different obligations. See Civ. Code Art. 2324; Thomas v. W W Clarklift, Inc., 375 So.2d 375 (La. 1979); Cavalier v. City of New Orleans, 273 So.2d 303 (La.App. 4th Cir. 1973); Pearson v. Hanford Accident and Indemnity Co., 281 So.2d 724 (La. 1973).
4. Joint tortfeasor liability contributing to the same injuries can arise in two ways: by the joint negligence of several actors or by separate and independent acts of negligence by more than one actor. See Russo v. Aucoin, 7 So.2d 744, 747 (La.App. 1st Cir. 1942). In Russo, the Court explained
The proximate cause of an accident may be the negligence of one person or it may be the negligence of several people. If it is the negligence of several people, that negligence may be their joint negligence, that is, negligence in which they participate jointly, acting together, or it may be separate negligence by each of them which, combining together, produces the unfortunate result: the accident. In the case of joint negligence of several, they are acting together in concert, and they either do something together which they should not have done or they fail to do something which, under the circumstance, they were together obligated to do. In the case of separate negligence of several persons being the proximate cause of an accident, they are not acting in concert. Each of them is independently guilty of negligence consisting of doing something he should not have done or failing to do something he should have done.Id.
D. Conclusion
Detective Harrison's testimony that Agent Drasutis was with the initial group of officers who went to the upstairs apartment is sufficient to create a genuine issue of material fact and lead a reasonable trier of fact to conclude that he was a joint tortfeasor with the other officers who allegedly committed the torts of false imprisonment, assault, and battery while in the plaintiffs' apartment. Once Drasutis was allegedly upstairs, there remain many questions of fact regarding his involvement in the incident and the duty he had to the plaintiffs. For instance, a reasonable trier of fact could conclude that: 1) Drasutis realized that the officers were in the wrong apartment, 2) the plaintiffs were detained beyond a reasonable time after the officers realized that Lawrence Blunt lived downstairs, 3) that the officers used an unreasonable amount of force, 4) that Drasutis and Covell either participated in the alleged torts or failed to intervene to prevent the torts from being committed, and that these acts and/or omissions were unreasonable, and lastly 5) that Agents Drasutis and Covell were unreasonable in assuming the dwelling was a single residence, and as a result were unreasonable in participating in the search of the residence without further investigation of the residence. Since there remains and issue of fact as to whether Drasutis and Covell committed tortious acts under Louisiana law, there remains an issue of fact as to the liability of the United States. Accordingly,
IT IS ORDERED that the Motion for Summary Judgment brought by the United States is DENIED.