A U.S. citizen detained in the mistaken belief he was eligible for deportation may sue the government under the limited waiver of sovereign immunity in the Federal Tort Claims Act, the U.S. Court of Appeals for the Second Circuit ruled yesterday.
Reversing a lower court and clarifying its case law, the circuit said that Viterbo Liranzo, wrongly held at immigration detention facilities for 105 days, can sue for false imprisonment because the actions of the agents have a “private analogue” actionable in New York state.
Judges Robert Sack (See Profile), Reena Raggi (See Profile) and Denny Chin (See Profile) decided the appeal in Liranzo v. United States, 11-61, remanding the case to Eastern District Judge Sandra Feuerstein (See Profile) to determine “which federal standards govern the determination of whether the government official’s actions here were privileged.”
Liranzo entered the United States from the Dominican Republic as a lawful permanent resident in 1965 at age 10. He became a U.S. citizen in 1972 pursuant to his mother being awarded custody of him in a divorce decree.
But his mother never obtained a certificate of naturalization and Liranzo, unaware he had become a citizen, continued to renew his green card until the mid-90s, so immigration records continued to list him as a permanent resident.
When Liranzo was arrested and convicted of criminal sale of a controlled substance for selling cocaine in 2005, he was sent to the Nassau County Correctional Center, where he was scheduled to be released in March 2006.
But immigration officials issued a detainer on Liranzo so he could be removed from the United States as a resident alien convicted of a drug felony. He was held in facilities in Manhattan, Freehold, N.J., and, ultimately, Oakdale, La., and was released only after obtaining proof of his mother’s divorce decree and thus his U.S. citizenship.
Feuerstein dismissed his suit for false arrest and false imprisonment for lack of subject matter jurisdiction on the eve of a bench trial in December 2010, despite the fact that Liranzo’s lawyer, Lawrence Katz of Katz & Kreinces in Mineola, wrote in a letter brief to the circuit that: “had a private individual held plaintiff prisoner for 105 days, New York would allow plaintiff to recover.”
Oral argument on Liranzo’s appeal was heard at the Second Circuit on Jan. 30, 2012. Judge Sack wrote the panel’s 44-page opinion, which was released yesterday.
Sack explained that, in 1946, Congress passed the Federal Tort Claims Act, which allows for a limited waiver of immunity for claims against the United States for money damages for “injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government…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.”
It was not until 1974, however, that Congress allowed suits for false arrest and false imprisonment, a move prompted by abuses federal agents committed in a series of “no-knock” drug raids in Collinsville, Ill., where the wrong families’ homes were raided.
Sack said the case law on the tort claims act’s “private analogue” requirement is “long, winding, and sparsely marked.”
Among the cases was Caban v. United States, 728 F.2d 68 (2d Cir. 1984), where a plaintiff made a claim based on erroneous immigration detention upon his arrival at John F. Kennedy International Airport. The plaintiff, illiterate and unable to document his citizenship, aroused the suspicion of immigration officials when he denied knowing his own birth date. He was held for six days and released after his citizenship was confirmed.
The circuit in Caban ultimately upheld the detention as privileged, but that decision was based in part on the fact that the detention took place at the border.
Explaining the Caban holding, Sack said, “Because ‘a person seeking entry into the United States has substantially less right to avoid detention than does a person already lawfully in the United States…far less than [the] probable cause’ that is ordinarily required to detain a person will suffice to render the detention privileged under the New York law of false imprisonment, which incorporates federal standards.”
But Sack said the Caban court “nonetheless recognized that the FTCA speaks in terms of the liability, under state law, of ‘a private person.’”
The circuit agreed there was, indeed “a private analogue” under New York state law by which the actions of the immigration officials can be judged.
“The fact that a complained of action occurs in a quintessentially federal context, moreover, does not necessarily mean that no private analogue exists,” he said.
Later, Sack said, “Even for alleged torts occurring in quintessentially federal contexts, the question remains whether analogous private liability exists under state law—and here, we conclude that it does.”
“Here, the proper analogy seems to us to be a person who, entirely in his or her private capacity, places someone under arrest for an alleged violation of the law—a so-called ‘citizen’s arrest,’” he said. “Such a person may not execute an arrest absent a legal privilege to do so.”
Assistant U.S. Attorney James Knapp argued for the government.
Katz, Lizano’s attorney, said yesterday he has “a reasonably strong case” on the privilege issue on remand and that he expects the decision will resonate beyond his client’s case.
“With the emphasis of Homeland Security on immigration [enforcement], I’m assuming that there are probably a lot of similarly situated people out there,” Katz said. “And I have no idea whether the U.S. will seek certiorari, but I would think that is a question they will be considering.”
@|Mark Hamblett can be contacted at firstname.lastname@example.org.