Second Circuit: Plausible FTCA Claim Made Where Immigration Detainer Was Imposed without Probable Cause
On September 27, 2013, Luis Hernandez, a U.S. citizen, was arrested and charged with public lewdness, a misdemeanor. While he was being processed in the New York City criminal court system, U.S. Department of Homeland Security (DHS) Officer W. Outlaw lodged an immigration detainer against him, incorrectly asserting that Hernandez was the subject of an order of removal. The detainer identified Hernandez as an “alien” named “Luis Enrique Hernandez-Martinez” with a nationality of “Honduras.” The detainer requested the city’s department of corrections maintain custody of Hernandez, and the city complied.
At Hernandez’s arraignment, the Assistant District Attorney (ADA) recommended 3 days of community service on a plea to the charge. The judge responded that community service could not be granted because of the Immigration and Customs Enforcement (ICE) detainer. The ADA then recommended 5 days of jail, and bail be set at $1.
While in custody, Hernandez told various department of corrections staff that he was a U.S. citizen. On October 1, 2013, DHS Officer Outlaw issued a notice of action instructing the department of corrections to cancel the September 27th detainer. Hernandez’s bail was paid on October 1, 2013, after the detainer was lifted. Hernandez was released from custody that day.
On December 14, 2016, Hernandez filed a complaint against the government under the Federal Tort Claims Act (FTCA) for false arrest and imprisonment, abuse of process, violation of due process under the New York Constitution, and negligence. Hernandez also asserted claims against the city under 42 U.S.C. § 1983 for maintaining a policy of acceding to federal immigration detainers and failing to train its employees on handling immigration detainers.
The government and city moved to dismiss for lack of standing under Rule 12(b)(1) and failure to state a claim under Rule 12(b)(6). The district court then dismissed the complaint. Hernandez appealed to the U.S. Court of Appeals for the Second Circuit.
First, the court considered Hernandez’s false arrest and imprisonment claims against the government. Under New York law, the elements of a false arrest and imprisonment claim are: the defendant intended to confine the plaintiff, the plaintiff was conscious of the confinement, the plaintiff did not consent to the confinement, and the confinement was not privileged. At issue were the intent and privilege elements.
The court stated that to prove intent, a plaintiff must show that the defendant confined or intended to confine him, or instigated his arrest. Here, the court found that government issued the detainer because DHS wanted to continue Hernandez’s confinement and intended for him to be detained. Indeed, the court agreed with Hernandez that the only reason he was not released at his arraignment was because of the detainer. The government contended that the city, not the government, confined Hernandez because of his lawful arrest, imposition of bail, and failure to tender bail. The court disagreed, stating that the natural consequences of the detainer was that Hernandez would be detained for up to 48 hours. The court also noted that the government “cannot escape responsibility by shifting the blame.”
For the purposes of the privilege element, the court stated that an act of confinement is privileged if it stems from a lawful arrest supported by probable cause. The government conceded that DHS must have probable cause to lodge an immigration detainer. Because a detainer of an individual is distinct from an initial arrest, the court stated that the individual is maintained in custody for a new purpose after being otherwise eligible to be released, and subjected to a new seizure that must be supported by probable cause. Hernandez argued that the government lacked probable cause to lodge the detainer, and therefore his confinement was not privileged. Hernandez stated that he was the wrong person, not of Honduran nationality, and did not have the middle name “Enrique” or the last name “Hernandez-Martinez.” The court agreed that Hernandez’s claims sufficiently alleged a lack of probable cause, and rejected the government’s arguments that similarity in surnames alone are sufficient to establish probable cause. The court therefore concluded that the district court erred in dismissing Hernandez’s false arrest and false imprisonment claims under the FTCA.
The court found that the district court properly dismissed Hernandez’s claim that the government violated his due process rights under the New York Constitution. The court of appeals noted that several district courts in the Second Circuit have held that plaintiffs cannot assert FTCA claims for violations of the New York Constitution, and agreed with the conclusion of the district courts.
The court then concluded that the district court properly dismissed Hernandez’s abuse of process claim against the government because Hernandez failed to plead sufficient facts to support an inference that the government had an improper purpose in detaining him. The court also concluded that Hernandez’s claim that the government is liable for negligence under the FTCA because it breached its duty to him and cause him injury failed as a matter of law. Citing Watson v. United States, 865 F.3d 123, 134 (2d Cir. 2017), the court stated that a plaintiff may not recover under general negligence principles for a claim that officers failed to exercise the appropriate degree of care in effecting an arrest.
Next, the court of appeals considered Hernandez’s § 1983 claims against the city. The court found that Hernandez plausibly alleged that the city refused to release Hernandez because of its policy of acceding to federal immigration detainers and honoring them without inquiry. The court stated that the city would have seen that Hernandez was not subject to an immigration detainer if it checked, and found that the city’s policy caused a deprivation of Hernandez’s rights.
The court found that the district court properly dismissed Hernandez’s failure-to-train claim, stating that Hernandez failed to alleged that the city’s failure to train its employees amounted to a deliberate indifference to the rights of individuals with whom the untrained employees came into contact. The court stated that the city’s employees did not act with deliberate indifference but because of a purported policy of complying with federal immigration detainers.
The court of appeals noted that the government and city “point fingers at each other” in defending this appeal. While the government argued the city was responsible for Hernandez’s confinement, the city argued that it only detained Hernandez because it complied with the government’s detainer. The court found neither argument convincing, and instead, found that Hernandez plausibly alleged both the government and city were at fault and that verification could have been obtained with minimal effort.
Read the full case: Hernandez 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.