Escalera-Salgado v. United States, Civil No. 14–1352 (BJM)

261 F.Supp.3d 163

Santos ESCALERA–SALGADO, et al., Plaintiffs,

v.UNITED STATES of America, Defendant.

Civil No. 14–1352 (BJM)

United States District Court, D. Puerto Rico.

Signed September 26, 2016

Guillermo J. Ramos–Luina, San Juan, PR, for Plaintiffs.

Lisa E. Bhatia–Gautier, United States Attorneys Office, District of Puerto Rico, San Juan, PR, for Defendant.

OPINION AND ORDER

BRUCE J. McGIVERIN, United States Magistrate Judge

Santos Escalera–Salgado ("Escalera") and Olga Pagan–Torres ("Pagan"), individually and on behalf of their minor children, J.E.P. and D.E.P., brought this action against the United States of America under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671 – 2680, alleging that federal agents shot Escalera without provocation while executing a search warrant at his apartment residence. Docket No. 1 ("Compl."). The government moved for summary judgment, Docket Nos. 26, 32, and Escalera opposed. Docket No. 41. The case is before me on consent of the parties. Docket No. 17.

For the reasons set forth below, the motion for summary judgment is DENIED .

SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate when the movant shows "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A dispute is "genuine" only if it "is one that could be resolved in favor of either party." Calero–Cerezo v. U.S. Dep't of Justice , 355 F.3d 6, 19 (1st Cir. 2004). A fact is "material" only if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party bears the initial burden of "informing the district court of the basis for its motion, and identifying those portions" of the record materials "which it believes demonstrate the absence" of a genuine dispute of material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

The court does not act as trier of fact when reviewing the parties' submissions and so cannot "superimpose [its] own ideas of probability and likelihood (no matter how reasonable those ideas may be) upon" conflicting evidence. Greenburg v. P.R. Mar. Shipping Auth. , 835 F.2d 932, 936 (1st Cir. 1987). Rather, it must "view the entire record in the light most hospitable to the party opposing summary judgment, indulging all reasonable inferences in that party's favor." Griggs–Ryan v. Smith , 904 F.2d 112, 115 (1st Cir. 1990). The court may not grant summary judgment "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson , 477 U.S. at 248, 106 S.Ct. 2505. But the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), and may not rest upon "conclusory allegations, improbable inferences, and unsupported speculation." Medina–Muñoz v. R.J. Reynolds Tobacco Co. , 896 F.2d 5, 8 (1st Cir. 1990).

BACKGROUND

Except where otherwise noted, the following facts are drawn from the parties' Local Rule 56¹ submissions.²

In October 2011, law enforcement agents secured a warrant to search for guns and controlled substances at Escalera's apartment residence after various law enforcement agencies investigated drug trafficking by gang members at certain locations. SUF ¶¶ 1–6. The warrant was executed at around 5:35 a.m. on October 29, 2011, by four agents with ICE Homeland Security Investigations—Jose Fernandez ("Fernandez"), Josue Menendez ("Menendez"), Jose Calderon ("Calderon"), and Ariel Perez ("Perez")—and one Puerto Rico Police Officer, Helme Santiago ("Santiago"). Docket No. 28–4 at 2.

The parties tell diametrically opposed accounts of the events that occurred when the agents attempted to execute the search warrant.

Government's Account

When executing the warrant, according to Menendez, the agents announced the presence of police and proceeded to breach the apartment's entry door after receiving no response. Docket No. 28–4 at 13 ¶ 3. Once inside the apartment, Fernandez and Menendez, both of whom wore clothing identifying them as police officers, detected movement inside a bedroom. SUF ¶¶ 10, 11, 22. Menendez re-announced the presence of police officers, and ordered a person inside the bedroom, later identified as Escalera, to come out and show his hands. SUF ¶¶ 12, 13. Fernandez and Menendez then saw Escalera coming out from behind a concrete wall inside the bedroom, and they reiterated that he should show his hands. SUF ¶¶ 15, 16.

Escalera did not comply with those orders; instead, he reached toward his waist or groin area as he moved for cover behind the concrete wall. SUF ¶ 17. This made Menendez and Fernandez believe that Escalera was reaching for a gun. SUF ¶ 19. Fearing they were in imminent danger of losing their lives, Menendez fired one shot and Fernandez discharged another. SUF ¶¶ 19–21, 33. One of the two bullets lodged in Escalera's elbow. SUF ¶¶ 22–24. After he was shot, Escalera moved away from the wall. SUF ¶ 24. The agents continued instructing Escalera to show his hands until they were able to apprehend him. SUF ¶ 23. Pagan was also inside the bedroom, and she, too, was arrested. SUF ¶ 25. The warrant was executed, and the search for a gun came up empty. SUF ¶ 31.

Plaintiffs' Account

Escalera testified that on October 29, 2011, he and Pagan were sleeping in their bedroom with the air conditioner enabled and their bedroom door closed.³ OSF ¶ 9. It was dark inside the apartment at the time. OSF ¶ 11. While no one knocked on the door or announced the presence of police, Escalera began hearing noise, voices, and yelling. OSF ¶¶ 8, 9. After the ruckus awoke Escalera and Pagan, they sat on their bed and directed their attention to the voices and light beams coming from the living-room area of their apartment. OSF ¶¶ 9–11. By this time, someone had opened the couple's bedroom door. Docket No. 40 at 10–11. The agents did not call for Escalera after entering the apartment, and Escalera could not discern what the agents were saying because they were not speaking Spanish. OSF ¶¶ 8, 12, 13.

The agents entered the couple's bedroom and ordered Escalera to get on the floor. OSF ¶ 16. Though he did not put his hands in his pockets or try to grab anything, Escalera heard two shots while he was still sitting on the bed. OSF ¶¶ 15–20. Escalera crawled around the floor and noticed that he had been shot in the elbow. OSF ¶¶ 15–20. Escalera then attempted to turn on the light inside the bedroom, OSF ¶¶ 15–20, though he acknowledged that he did not tell the agents that he planned to do so. Docket No. 28–5 at 4. Afterward, Escalera and Pagan were arrested and the warrant was executed. OSF ¶¶ 25–27. No firearm was found, and Escalera highlights that none of the agents actually testified to seeing him draw a weapon or anything that resembled a weapon. ASF ¶ 1.

DISCUSSION

The government contends that the agents used a reasonable amount of force under the circumstances, and that qualified immunity shields the government from liability. Escalera maintains that the agents' version of the events is at odds with his own testimony, and that this presents a genuine dispute of material fact that precludes summary judgment.

I. FTCA

The Act "was designed primarily to remove the sovereign immunity of the United States from suits in tort." Levin v. United States , 568 U.S. 503, 506, 133 S.Ct. 1224, 1228, 185 L.Ed.2d 343 (2013) (internal quotation marks omitted). It makes the federal government "liable in the same manner and to the same extent as a private individual under like circumstances." 28 U.S.C. § 2674 ; United States v. Olson , 546 U.S. 43, 46–47, 126 S.Ct. 510, 163 L.Ed.2d 306 (2005) ("the words ‘like circumstances’ do not restrict a court's inquiry to the same circumstances , but require it to look further afield" by considering analogies in which a private person could be found liable) (emphasis in original) (internal quotation marks omitted).

The "FTCA provides an exception to the United States' liability for certain torts, including assault, battery, and false arrest." Tekle v. United States , 511 F.3d 839, 851 (9th Cir. 2007). But when "such a tort is committed by a federal law enforcement officer ... liability is restored." Id. ; see also Millbrook v. United States , 569 U.S. 50, 133 S.Ct. 1441, 1444, 185 L.Ed.2d 531 (2013) (FTCA waives sovereign immunity as to "acts or omissions of law enforcement officers that arise within the scope of their employment, regardless of whether the officers are engaged in investigative or law enforcement activity, or are executing a search, seizing evidence, or making an arrest"). The relevant portion of the Act, which is known as the "law enforcement proviso," provides:

The provisions of this chapter and section 1346(b) of this title shall not apply to—

.....

(h) 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 shall apply to any claim arising ... out of assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution.

Millbrook , 133 S.Ct. at 1444 (quoting 28 U.S.C. § 2680(h) ).

"On its face, the law enforcement proviso applies where a claim both arises out of one of the proviso's six intentional torts, and is related to the ‘acts or omissions’ of an ‘investigative or law enforcement officer.’ " Millbrook , 133 S.Ct. at 1444–45. To determine whether the plaintiff can establish the government's liability under the FTCA, courts look to the "law of the place where the act or omission occurred." S...