Clarence Washington v. DEA ( 1999 )


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  •                     United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ________
    No. 98-2733
    __________
    Clarence Washington;                  *
    Flora Jean Washington,                *
    *
    Appellants,               *
    * Appeal from the United States
    v.                              * District Court for the
    * Eastern District of Missouri
    *
    Drug Enforcement Administration,      *
    *
    Appellee.                 *
    __________
    Submitted: March 8, 1999
    Filed: July 26, 1999
    __________
    Before McMILLIAN and MORRIS SHEPPARD ARNOLD, Circuit Judges, and
    SACHS,1 District Judge.
    __________
    McMILLIAN, Circuit Judge.
    1
    The Honorable Howard F. Sachs, United States District Judge for the Western
    District of Missouri, sitting by designation.
    Clarence Washington and Flora Jean Washington (hereinafter "the
    Washingtons") appeal from a final order entered in the United States District Court2 for
    the Eastern District of Missouri granting judgment in favor of the Drug Enforcement
    Administration (DEA) (hereinafter "the United States"). Their suit, under the Federal
    Tort Claims Act (FTCA), asserted that DEA agents obtained and executed a search
    warrant for their house in an unreasonable and reckless manner in violation of the
    Fourth, Fifth, and Fourteenth Amendments of the U.S. Constitution and in violation of
    Missouri's assault and battery and abuse of process laws. Following a bench trial, the
    district court held that the United States cannot be found liable for constitutional torts
    under the FTCA and that the agents' conduct did not constitute assault and battery or
    abuse of process under Missouri law. See Washington v. DEA, No. 4:92-CV-2285
    (E.D. Mo. May 19, 1998) (Washington) (Memorandum). For reversal, the
    Washingtons argue that the district court erred in finding that (1) the FTCA does not
    include constitutional violations; (2) the government agents did not commit assault and
    battery under Missouri law; and (3) the government agents did not commit the tort of
    abuse of process under Missouri law. For the reasons discussed below, we affirm the
    judgment of the district court.
    Jurisdiction
    Jurisdiction was proper in the district court based upon 28 U.S.C. § 1346 and
    28 U.S.C. § 2671 et seq. Jurisdiction in this court is proper based upon 28 U.S.C.
    § 1291. The notice of appeal was timely filed pursuant to Fed R. App. P. 4(a).
    Background
    2
    The Honorable Carol E. Jackson, United States District Judge for the Eastern
    District of Missouri.
    -2-
    The parties basically agree on the underlying facts and the following statement
    of facts is taken in large part from the district court memorandum. The Washingtons
    are husband and wife and at the time of the incident were 72 and 60 years old,
    respectively. Neither has a criminal record or has ever been the subject of a criminal
    investigation. They own a single-family house at 5920 McArthur in the City of St.
    Louis and have been the sole occupants since 1968. The Washingtons possess the only
    keys to the residence. The houses on McArthur are "remarkably similar in outward
    appearance," that is, single-family, one-story bungalows constructed of red brick, with
    aluminum awnings and metal security doors. Washington, slip op. at 3.
    In January 1991, Donald Mendrala had been a DEA special agent for more than
    three and a half years. In 1987 Agent Mendrala became involved in an investigation
    of a national organization, known as the Moorish Science Temple of America (MSTA),
    that was suspected of drug trafficking, murder, and other related crimes. The St. Louis
    chapter, led by Jerry Lee Lewis-Bey, was located at 754 West Florissant. On
    November 22, 1990, DEA agents arrested Gary Caldwell, a convicted felon and MSTA
    member, for unlawful possession of a machine gun.3 In exchange for Caldwell's
    assistance in investigating the MSTA, the government agreed not to prosecute him for
    any crimes he may have committed while affiliated with the organization.
    Caldwell told investigators that he had distributed narcotics for Jerry Lee Lewis-
    Bey and that on November 4, 1990, he and other MSTA members weighed two
    kilograms of cocaine at 5920 McArthur. According to Caldwell, the scale used to
    weigh the cocaine was still at the house. The government subjected Caldwell to a
    polygraph test several times4 and had him point out the house to investigators. Agent
    3
    Caldwell had an Uzi in his possession so that he could carry out a contract
    killing for the MSTA.
    4
    It is unclear from the record whether the lie detector tests confirmed Caldwell's
    truthfulness with respect to the information about 5920 McArthur.
    -3-
    Mendrala did not, however, independently corroborate the information with respect to
    5920 McArthur or attempt to determine the identity of the occupants.
    Agent Mendrala prepared a master affidavit for fifteen search warrants for
    various suspected MSTA locations in St. Louis City and County, including the
    Washingtons' residence at 5920 McArthur. The only information the DEA had
    concerning that particular address came directly from Caldwell. The magistrate judge5
    issued the search warrants for narcotics; narcotics paraphernalia; firearms; documents
    and records relating to travel, concealment of money, and occupancy or residency of
    the premises searched; money; photographs; pagers; and other items described on the
    list appended to the application and affidavit. The search warrant for 5920 McArthur
    did not authorize a night-time execution, although the application expressly requested
    such authorization.
    In the early evening on January 9, 1991, law enforcement officers assembled at
    the St. Louis Metropolitan Police Department's headquarters to coordinate the
    execution of the search warrants. The officers wanted to execute the search warrants
    simultaneously, but did not have enough personnel to do so. Instead, the officers
    organized into teams that would each execute several of the search warrants.
    Apparently, the Washingtons' residence was the last location searched by one particular
    team.
    The Washingtons were asleep in bed when the officers arrived at 5920 McArthur
    at approximately 12:30 a.m. The officers entered the residence by force, using a
    battering ram to break down the front door. There is some dispute, however, regarding
    whether the officers knocked on the front door and announced their presence before
    going inside. The government maintained that before the officers entered the residence,
    5
    The Honorable David D. Noce, Chief United States Magistrate Judge for the
    Eastern District of Missouri.
    -4-
    one officer knocked on the bedroom window while another agent knocked on the
    outside door. The government asserted that the officers entered the house only after
    announcing that they were police officers with a search warrant and after hearing one
    of the occupants inside respond, "go away." Unlike the government's version, the
    Washingtons asserted that the officers did not knock and announce their presence
    before entering the residence by force. Relying on their next door neighbor as an
    eyewitness,6 the Washingtons asserted that the officers simply approached the house
    and, without knocking or announcing their identity or purpose, used the battering ram
    to break down the front door.
    The officers entered the residence with their weapons drawn.7 The officers
    encountered Clarence Washington in the dining room where they shouted at him to
    raise his hands, threatened to shoot him if he disobeyed the order, shoved him, and
    ordered him to sit. Flora Jean Washington was also ordered, at gunpoint, to comply
    with the officers' orders. The Washingtons were detained while the officers conducted
    a thorough search of the residence. Although the Washingtons were not physically
    injured as a result of the search, they did suffer emotional distress, and several items
    in the house, including furniture, carpets, doors, and an antique trunk, were damaged.
    The officers did not find any narcotics or drug paraphernalia that suggested a
    connection between the Washingtons and the MSTA or its members. The officers did,
    however, find and seize three firearms, ammunition, and certain personal papers. An
    6
    The Washingtons' next door neighbor was still awake when the officers arrived
    at their house. Observing from her porch, the neighbor testified that she saw the officers
    exit their vehicles, approach the house, and break open the front door.
    7
    Although there is no express DEA policy concerning how to execute a search
    warrant, agents testified that it is customary for officers to have their weapons drawn
    for their protection and to use loud and forceful language in order to gain control over
    individuals who may be inside the premises. See Washington v. DEA,
    No. 4:92-CV-2285, slip op. at 5 (E.D. Mo. May 19, 1998).
    -5-
    officer gave the Washingtons a copy of the search warrant and a receipt for the items
    seized. However, the list of items seized was not attached to the copy of the search
    warrant and the carbon copy receipt given to the Washingtons did not list the
    ammunition and personal papers. The original receipt was later amended to include
    these items. Furthermore, the name provided on the receipt did not correspond with
    that of any agent involved in the search.
    The Washingtons unsuccessfully sought an explanation of why their house had
    been searched, compensation for property damage, and return of the property seized.
    They then filed this action in federal district court, alleging that the officers obtained
    and executed the search warrant in an unreasonable and reckless manner, in violation
    of the Fourth, Fifth, and Fourteenth Amendments of the U.S. Constitution. The
    Washingtons further claimed that the officers' actions constituted assault and battery
    and that the search was an abuse of process under state law. The Washingtons brought
    this action in two counts: count one was a FTCA claim against the DEA, Department
    of Justice (DOJ), and the United States; count two was a 42 U.S.C. § 1983 civil rights
    claim against several individual St. Louis Metropolitan Police officers. The civil rights
    claim was tried to a jury and was dismissed at the close of the Washingtons' case. The
    district court then found in favor of the remaining defendants (DEA, DOJ, US) on the
    FTCA claim. See Washington, slip op. at 15. The district court held that the FTCA did
    not include constitutional torts, and that, under Missouri law, the officers' actions in
    executing the search warrant did not constitute assault and battery or abuse of process.
    See 
    id. at 10-11,
    14. This appeal followed.
    Discussion
    The Washingtons first argue that the district court erred in holding that the
    United States cannot be found liable under the FTCA for constitutional violations
    committed by its law enforcement officers. Citing Carlson v. Green, 
    446 U.S. 14
    , 19-
    20 (1980), the Washingtons contend that the FTCA provides a private cause of action
    -6-
    against the United States for the constitutional violations committed by the DEA agents
    who searched their residence. The Washingtons argue that it is "crystal clear that
    Congress views FTCA and Bivens [8] as parallel, complementary causes of action." 
    Id. at 19.
    The Washingtons argue that the officers recklessly failed to corroborate the
    information provided by Caldwell, and that the manner and degree of force used by the
    officers (battering ram, drawn guns, time of day, failure to knock and announce,
    destruction of property, failure to list all the items seized) were unreasonable and
    reckless, amounting to Fourth, Fifth, and Fourteenth Amendment violations. The
    Washingtons contend that the 1974 amendment to the FTCA specifically abrogated the
    government's sovereign immunity with respect to constitutional violations by its law
    enforcement agents.
    We review the district court's findings of fact for clear error and conclusions of
    law de novo. See, e.g., Celestine v. United States, 
    841 F.2d 851
    , 853 (8th Cir. 1988)
    (per curiam).
    We first consider the district court's determination that constitutional torts are not
    actionable under the FTCA. The United States may be held liable for negligent or
    wrongful acts by federal employees committed while acting within the scope of their
    employment under the FTCA. Specifically, 28 U.S.C. § 1346(b)9 grants federal district
    8
    Under Bivens v. Six Unknown Agents, 
    403 U.S. 388
    (1971), parties have a
    cause of action against the individual law enforcement agents who are responsible for
    constitutional rights violations.
    9
    28 U.S.C. § 1346(b) provides in relevant part:
    The district courts . . . shall have exclusive jurisdiction of civil
    actions on 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
    while acting within the scope of his [or her] office or employment, under
    -7-
    courts jurisdiction over a certain category of claims for which the United States has
    waived its sovereign immunity. The United States is liable to the same extent that a
    private person under like circumstances would be liable to the claimant in accordance
    with the law of the place where the act or omission occurred. See id.; see also 28
    U.S.C. § 2674 (1994).The "law of the place" refers to the substantive law of the state
    where the wrongful conduct took place. See FDIC v. Meyer, 
    510 U.S. 471
    , 477-78
    (1994). Moreover, courts have considered "under like circumstances" to mean that
    there must be a private analogue to the government's conduct. See Wright v. United
    States, 
    963 F. Supp. 7
    , 16-17 (D.D.C. 1997) (finding that "the discrete act of applying
    for a search warrant is not reviewable under the FTCA" since the act "has no analogous
    counterpart for private citizens").
    We hold that the district court did not err in concluding that the Washingtons'
    constitutional tort claim was not actionable under the FTCA. "Because the 'law of the
    place' refers to state law, and state law cannot provide liability for the violation of a
    federal constitutional right, constitutional wrongs cannot be remedied through the
    FTCA." Russ v.United States, 
    62 F.3d 201
    , 204 (7th Cir. 1995) (citing FDIC v. 
    Meyer, 510 U.S. at 478
    ); see Roundtree v. United States, 
    40 F.3d 1036
    , 1038 (9th Cir. 1994).
    Furthermore, the application process for, and execution of, a search warrant has no
    private analogue. See 
    Wright, 963 F. Supp. at 16-17
    . Thus, there is no comparable
    situation to the instant case where a private individual could be held liable under state
    law.
    Furthermore, the Washingtons' reliance on Carlson v. Green and the 1974
    amendment is misplaced. In Carlson v. Green, the Supreme Court held that FTCA and
    Bivens actions are "complementary," rather than integrated causes of action. See 446
    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.
    -8-
    U.S. at 20-21. That is, Carlson v. Green does not mean that a claimant can bring a
    constitutional tort cause of action under the FTCA. Rather, victims of purposeful
    wrongdoing on the part of federal law enforcement officers can bring specified
    intentional tort claims under the FTCA and constitutional tort claims under Bivens v.
    Six Unknown Agents, 
    403 U.S. 388
    (1971). See Carlson v. 
    Green, 446 U.S. at 20-21
    ;
    see also FDIC v. 
    Meyer, 510 U.S. at 478
    . In fact, this conclusion is actually supported
    by the text of the 1974 amendment. Congress included an exclusion for intentional
    torts such as assault, battery, and abuse of process in the original version of the act.
    See Federal Tort Claims Act § 421 (1946). However, in 1974 Congress amended this
    section to provide that "investigative or law enforcement officers" can be held liable for
    "assault, battery, false imprisonment, false arrest, abuse of process, or malicious
    prosecution." 28 U.S.C. § 2680(h). The amendment abrogated the government's
    sovereign immunity under the FTCA only with respect to those enumerated torts, not
    constitutional ones. See id.; see also Primeaux v. United States, No. 97-2691, 
    1999 WL 407719
    , at *7 (8th Cir. June 17, 1999) (en banc) (Lay., J., dissenting). Therefore,
    constitutional tort claims are not cognizable under the FTCA.
    The Washingtons next argue that the district court erred in finding that the
    officers' conduct did not constitute assault or battery under Missouri law. Assault and
    battery are among the intentional torts for which federal law enforcement officers can
    be held liable under the FTCA. See 28 U.S.C. § 2680(h). The Washingtons argue that
    the officers aimed weapons at them, threatened to shoot them, and shouted at and
    shoved them. The Washingtons argue that such conduct was more than enough to
    constitute assault and battery under Missouri law.
    Under Missouri law, a private individual commits assault and battery if he or she
    purposefully puts another person in apprehension of offensive contact or if he or she
    knowingly causes offensive physical contact with another person. See MO. ANN. STAT.
    § 565.070 (West 1979). However, "[w]hile it may be unlawful in given circumstances
    for the private individual to touch the person of another, it is entirely lawful for an
    -9-
    officer clothed with a warrant to do so, provided he [or she] uses no more force than
    is reasonably necessary."10 Neal v. Helbling, 
    726 S.W.2d 483
    , 487 (Mo. Ct. App.
    1987). Missouri law permits officers to take appropriate action to ensure their safety
    while executing search warrants. See State v. Shannon, 
    835 S.W.2d 406
    , 408 (Mo. Ct.
    App. 1992) (citing United States v. Patterson, 
    885 F.2d 483
    , 484 (8th Cir. 1989)); see
    also Michigan v. Summers, 
    452 U.S. 701
    , 702-03 (1981) (holding that the risk of harm
    to both the officers and occupants is substantially reduced if law enforcement officers
    exercise immediate and unquestioned command of the situation). Therefore, we must
    determine whether the officers acted reasonably when they entered the residence with
    their weapons drawn and shouted at and shoved the Washingtons.
    We hold that the district court did not error in finding that the officers' conduct
    did not constitute assault or battery under Missouri law. The district court found that
    the officers entered what they reasonably believed to be a location associated with
    narcotics and occupied by drug dealers who were suspected of several murders. The
    officers sought to gain immediate control of the situation, in order to protect themselves
    and the occupants, by drawing their weapons and using forceful language and conduct.
    We agree with the district court's finding that, "while this show of force may have
    intimidated the [Washingtons] and offended their sensibilities, it was not unreasonable
    under the circumstances." Washington, slip op. at 14. The record supports the district
    court's finding that the officers' actions were consistent with trying to secure the
    premises so that they could execute the search warrant. Although the officers did use
    a significant amount of force, under the circumstances we cannot say that it was
    unreasonable to do so.
    10
    Neal v. Helbling, 
    726 S.W.2d 483
    , 487 (Mo. Ct. App. 1987), involved an arrest
    warrant, where it is manifest that there will be physical contact between the officer and
    the claimant. We believe that the execution of an arrest warrant is sufficiently
    analogous to the execution of a search warrant, at least for purposes of a claim that the
    officers used force in excess of that reasonably necessary to execute the search warrant.
    -10-
    Finally, the Washingtons argue that the district court erred in concluding that the
    officers did not commit the tort of abuse of process. The Washingtons argue that they
    established all of the elements of the tort at trial and that the district court failed to
    apply Missouri law correctly. The Washingtons argue that the lack of corroboration,
    time of execution, and incorrect name on the receipt all constitute abuse of process with
    respect to search and seizure laws.
    To establish a claim of abuse of process under Missouri law, the plaintiff must
    show that: (1) the defendant made an illegal or improper or perverted use of the
    process; (2) such use was neither warranted nor authorized by the process; (3) the
    defendant had an improper purpose in exercising the use of process; and (4) damage
    resulted. See, e.g., Ritterbusch v. Holt, 
    789 S.W.2d 491
    , 493 (Mo. 1990) (en banc).
    "The essence of a claim for abuse of process is the use of process for some collateral
    purpose." Jenkins v. Revolution Helicopter Corp., 
    925 S.W.2d 939
    , 945 (Mo. Ct. App.
    1996).
    We hold that the district court correctly found that the officers' conduct in
    preparing and executing the search warrant for 5920 McArthur did not constitute an
    abuse of process under Missouri law. Although the DEA agents failed to corroborate
    Caldwell's information about the house and executed the search warrant at night, these
    actions or omissions do not constitute an abuse of process because there was no
    collateral purpose. We agree with the district court's conclusion that the Washingtons
    "have not shown either that Mendrala had some improper purpose in obtaining a
    warrant to search their home or that his conduct was motivated by an improper or
    wrongful impetus." Washington, slip op. at 15.
    Conclusion
    For the reasons stated, we hold that the district court did not err in holding that
    constitutional torts cannot be remedied under the FTCA and that the officers' conduct
    -11-
    did not constitute assault and battery or abuse of process under Missouri law.
    Accordingly, the judgment of the district court is affirmed.
    A true copy.
    Attest:
    CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT
    -12-