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A private company that assists law enforcement officials in a “patent abuse” of police authority may be liable for damages under � 1983 of the federal Civil Rights Act, an federal judge for the U.S. District Court for the Eastern District of New York has ruled. While a private courier has a qualified immunity from suit when it aids law enforcement, reasoned Judge David G. Trager, it loses that immunity when it participates in a scheme that would appear to a reasonable person to be “patently abusive” of the plaintiffs’ civil rights. Trager’s ruling means that Airborne Freight Corp. may face a trial over its role in a 1993 arrest made by the New York Police Department. In that case, an Airborne Freight employee agreed to deliver a package of cocaine to a Queens couple and misinformed them that the package came from Venezuela, not Colombia, its true point of origin. Airborne may yet avoid a trial if it can show that the employees made the final decision to cooperate with the “abusive” investigation and did not act on a company policy, Trager noted. The misinformation, Trager said, created potential liability for a private party because a reasonable layperson could only conclude that he or she was being recruited into participating in an abusive practice by the police. “This is not a case where a layperson is forced to make subtle legal distinctions,” Trager wrote in a 120-page opinion, Mejia v. City of New York, 96-CV-3007 (DGT). “[P]laintiffs’ version of the facts would warrant the conclusion that Airborne possessed information that made it objectively unreasonable for a private actor in its position to believe that the Mejias’ arrest was not patently abusive.” In Mejia, the plaintiffs filed a complaint charging defendants, including officers of the U.S. Customs Service and New York Police Department, with false arrest, false imprisonment, use of excessive force and malicious prosecution. The complaint was filed after one of the plaintiffs, Luis Mejia, was tried for drug possession and acquitted in 1995. The arrest came after federal customs officials in Miami on Nov. 18, 1993, intercepted a package from Bogota, Colombia, which contained more than one pound of cocaine. The package was addressed for delivery to an auto repair garage in Hollis, Queens, owned by Luis Mejia. The customs service then contacted the New York Police Department about the possibility of conducting a controlled delivery of the package and arresting the recipient. WORKING THE CASE To effect the delivery of the cocaine, customs agents contacted Airborne’s security officials and asked for their cooperation. On Nov. 30, 1993, Mejia was asked to pick up the package at Airborne’s office in Inwood, Queens, near John F. Kennedy International Airport. According to the plaintiffs, they knew nothing about the package from Colombia, and they claim that Airborne representatives or law enforcement agents “coaxed and cajoled” them into believing that the package was a Christmas gift from Venezuela. The Mejias’ former nanny was Venezuelan and had recently moved home, but there was no direct evidence that Airborne or the government knew of those facts. However, the court said, the package markings were altered after being intercepted, with the point of origin marked as “CAR,” perhaps a reference to Caracas, Venezuela. Mejia went with his wife to collect the package. According to the government and Airborne, Mejia accepted the delivery and walked with the package to his car, where he gave it to his wife, Aura Mejia. Mejia then opened it, and police intercepted their car and made the arrest. Mejia claimed he opened the package and removed one item, textile samples. Not interested in the samples, he threw the package in the back seat. He said that he only retained the package because he thought it might have been intended for one of the employees at his garage. During the police stop, Mejia said that police demanded that he hand over “the drugs,” and one police sergeant allegedly said “you [expletive] Colombians, you are all the [expletive] same thing.” QUALIFIED IMMUNITY TEST Judge Trager first decided that a qualified immunity is available to private parties who assist law enforcement officials in the exercise of their duties. Unless such a qualified immunity exists, Trager reasoned, the threat of civil liability would distract private citizens from discharging their duty to provide legitimate assistance to law enforcement. While “qualified immunity is available to private actors who are enlisted by law enforcement officials to assist in making an arrest,” Airborne Freight was not entitled to immunity from the Mejias’ lawsuit, Trager reasoned. Immunity from civil liability should only be available to persons who agree to assist a known law enforcement official, do not participate in a patent abuse of police authority and who do not deviate from the instructions of the law enforcement official. Under the facts of the Mejia case in the light most favorable to the plaintiffs, Trager said, Airborne may not have operated under the objectively reasonable belief that the practice of luring the Mejias to receive the package was not patently abusive. “A reasonable layperson would have to recognize that it was a patently abusive tactic on the part of the police to induce someone to pick up a package through a representation that it was from Venezuela and to then arrest that person on the pretense that they were the intended recipient of a package from Colombia,” Trager wrote. Judge Trager granted summary judgment in favor of the City, but denied summary judgment motions brought by a U.S. Customs special agent and a New York police sergeant. Trager also weeded out some of the plaintiffs’ claims against all defendants. In another holding, Trager said that Airborne would not be subject to vicarious liability if it can show that its security officer, and not the company, was solely responsible for the decision to cooperate with the police investigation. Leon Friedman of Manhattan, N.Y., represented the Mejias. Richard M. Sand of Garden City, N.Y., is counsel to Airborne. Assistant U.S. Attorney Vincent Lipari is handling the case for the U.S. Customs Service agent, and Assistant Corporation Counsels Isaac Klepfish and Georgia Pestana represented the City of New York, and the New York police officers named as defendants.

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