First Circuit Punts Issue of Whether Qualified Immunity Defense Is Available in FTCA Actions Arising in Puerto Rico
The First Circuit recently affirmed a district court judgment dismissing a FTCA claim based on the “clearly established” step of the qualified immunity analysis applied in Bivens. In doing so, it questioned the availability of the qualified immunity defense in a FTCA claim in Puerto Rico, but left this question open as the plaintiff did not raise this issue.
On October 29, 2011, Puerto Rico police officers and U.S. Homeland Security Investigations agents executed a search warrant at Santos Escalera-Salgado’s residence. The Puerto Rico officers informed the agents that Escalera was a drug trafficker and gang leader with a large amount of drugs, firearms, and cash at his residence. Because of the risks associated with Escalera, the HIS agents cleared Escalera’ residence before the police officers conducted the search.
Agents knocked on Escalera’s door, announced their presence, and after receiving no response, entered the apartment. There were no lights on in the residence, and the agents used flashlights as a visual aid. In Spanish, HSI agent Mendez saw Escalera’s silhouette in a bedroom, and ordered Escalera to show his hands.
Escalera ignored Mendez’s commands, lifted his shirt, reached for his waistband, and moved for cover. While Mendez did not notice any bulge that would indicate a weapon, Mendez and another agent shot at Escalera, and one of the rounds hit Escalera in his elbow. A search revealed no weapon on Escalera or in his residence. However, the search yielded three kilograms of cocaine and cash.
Escalera, with his wife and children, filed a Federal Tort Claims Act claim for damages stemming from his gunshot injury. Following a bench trial, the district court ruled for the United States. The district court assumed Escalera proved a claim of battery under Puerto Rico law, but found the United States could not be held liable unless the unlawfulness of the officers’ conduct was clearly established when they acted, and that no precedent clearly established the agents’ conduct to be unlawful.
Escalera appealed the district court decision to the U.S. Court of Appeals for the First Circuit. The court of appeals explained that the FTCA provides a limited congressional waiver of sovereign immunity of the United States for tortious acts and omissions committed by federal employees acting within the scope of their employment. To assess liability under the FTCA, the courts look to the law of the place where the act or omission occurred. Here, Puerto Rico law supplies the relevant substantive rules.
The court of appeals stated that the district court’s qualified immunity analysis relied on the circuit’s assumption that Puerto Rico tort law does not impose personal liability where the officers would be protected in a Bivens claim by qualified immunity. However, the circuit’s assumption is based on a parallel between Puerto Rico’s tort law and federal qualified immunity principles, not on Puerto Rican authority embracing the “clearly established” inquiry employed in a Bivens case.
The court of appeals stated that its oft-repeated assumption has allowed the circuit to bypass significant questions of “whether any local court could impose damage liability on federal officers where they would be exempt in a federal lawsuit and whether Congress under the FTCA would expect the federal government to shoulder such liability.” The court stated these questions are significant because legislative history accompanying the FTCA shows that Congress intended to make the government independently liable in damages for the same type of conduct alleged to have occurred in a Bivens claim, which imposes liability upon individual government officials.
The court of appeals punted the issue of whether the circuit’s assumption concerning the availability of a qualified immunity defense in a FTCA action in Puerto Rico is correct because Escalera did not argue that the district court erred by assuming the defense to be applicable. He argued that the district court erred in concluding the agents did not violate clearly established law.
Turning to Escalera’s argument, the court of appeals addressed whether the agents’ actions violated clearly established statutory or constitutional rights a reasonable person would have. The court did not find the agents’ conduct to be self-evidently unlawful, as they had ample reason to suspect danger. In particular, the agents were warned Escalera was a gang leader with guns, there was no response when Mendez announced his presence at the door, Escalera did not show his hands to the agents when commanded to, and Escalera lifted his shirt, reached for his waistband, and moved for cover.
Further, when a defendant invokes qualified immunity, the burden is on the plaintiff to show that the defense is inapplicable. Here, Escalera had the burden to identify that a reasonable officer would have known that the conduct at issue was illegal. Escalera did not cite to any cases in which an agents’ use of force was excessive. Rather, he attempted to distinguish cases in which circuit courts have held an officer’s use of deadly force was reasonable. This was insufficient.
The court of appeals concluded that the district court did not err in dismissing Escalera’s claim on the clearly established inquiry, and affirmed the district court’s judgment.
Read the full case: Escalera-Salgado v. United States
This case law update was written by Michael J. Sgarlat, Associate Attorney, Shaw Bransford & Roth, PC.
For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.