Petition for Writ of Certiorari — Bevacqua v. United States

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No. OFPIGE OF THE SOLARA

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1994

EUGENE F. BEVACQUA,

Petitioner,

-VS-

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Alexander (Zander) Blewett, III

HOYT & BLEWETT

P.O. Box 2807

Great Falls, MT 59403

(406) 761-1960

Attorneys for Petitioner

Eugene F. Bevacqua

January 16, 1995

PRINTING CENTER « (406) 761-1555 » GREAT FALLS, MT 59401

Pa ba r a .4 .- ¢ , =. * i S66 CCS

QUESTION PRESENTED

Is a United States Customs Officer authorized to perform a personal

search on a citizen, resulting in serious personal injury to such citizen,

when the officer was conducting the search for a retaliatory reason and

when the officer had no suspicion, not even a hunch, that the citizen was

smuggling, armed or in any other way violating the law?

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TABLE OF CONTENTS

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APPENDIX

Memorandum Opinion, Findings of Fact and

Conclusions of Law of the District

Court in Bevacqua v. United States of

America, No. CIV-91-0178-N-HLR-JLQ

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Judgment of the District Court in

Bevacqua v. United States of

America, No. CIV-91-078-N-HLR-JLQ

ND | 5 40a

Memorandum of the Court of Appeals for the

Ninth Circuit in Bevacqua v.

United States of America,

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TABLE OF AUTHORITIES

CASES: Page

Thomas v. United States,

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United States v. Carter,

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United States v. Couch,

688 F.2d 599, 604 (9th Cir. 1982),

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United States v. Des Jardins,

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United States v. Glaziou,

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United States v. Grayson,

597 F.2d 1225, 1228 (9th Cir. 1979),

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United States v. McMurray,

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United States v. Palmer,

575 F.2d 721 (1978),

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United States v. Wilmot,

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iii

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1994

No.

EUGENE F. BEVACQUA,

Petitioner,

-VS-

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

The Petitioner, Eugene F. Bevacqua, respectfully prays that a writ of

certiorari issue to review the judgment and opinion of the United States

Court of Appeals for the Ninth Circuit entered in this proceeding on

October 27, 1994.

OPINIONS BELOW

The unpublished opinion of the Court of Appeals subject to this petition

appears in the Appendix at 41a. The District Court’s Memorandum

Opinion, Findings of Fact, and Conclusions of Law and Judgment appears

in the Appendix at 1a and 40a, respectively.

2

JURISDICTIONAL STATEMENT

The judgment of the Court of Appeals for the Ninth Circuit was entered

on October 27, 1994. Appendix at 41a. The jurisdiction of this Court is

invoked pursuant to 28 U.S.C. § 1254(1). This petition is timely, having

been filed within 90 days after entry of judgment by the Ninth Circuit

Court of Appeals, pursuant to Rule 13 of the Supreme Court Rules.

STATUTES INVOLVED

19 U.S.C. § 482.

STATEMENT OF THE CASE

Petitioner (Bevacqua) was a brakeman for the Union Pacific Railroad

Company who incurred a serious knee injury when he was subjected to a

personal search by U.S. Customs Officer, Keith Bamhart, on May 20,

1991. Petitioner brought his damage claim against the United States of

America (U.S.) pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671

through § 2680 and 28 U.S.C. § 1346(b). Bevacqua brought his claim

against the U.S. claiming that Bamhart’s grabbing and searching him was

unauthorized and hence a battery. The District Court found that the search

of Bevacqua by Bamhart was in retaliation for noise problems created by

Bevacqua’s employer, the Union PacificRailroad Co., and that retaliatory

searches were specifically prohibited by the customs manual (Appendix at

3a and 21a). The District Court also found:

Under the law of the Ninth Circuit, and as set forth in the Customs

Tegulations, minimal or mere suspicion is required for such a personal

3

pat-down search. The court finds that the customs officers had abso-

lutely no suspicion, not even a hunch, that Mr. Bevacqua was smug-

gling illegal goods into the country, or that he was armed with a

dangerous weapon. The court is satisfied that Inspector Bamhart did

not have the authority to insist that Bevacqua proceed to secondary

inspection and force him there for the purpose of conducting a pat-

down search and/or frisk, both under Customs Directives, and the law

of the Supreme Court and the Ninth Circuit.

Appendix at 32a.

Even though the District Court found that the contact and search of

Bevacqua by Barnhart was unauthorized [and therefore a battery], the

District Court wrongly determined that the intentional tort of battery is not

cognizable under the Federal Tort Claims Act. Appendix at 10a, 1la. See

28 U.S.C. § 2680(h), which specifically authorizes such a claim under the

Federal Tort Claims Act.

Bevacqua then appealed this ruling to the Ninth Circuit Court of Appeals

pursuant to 28 U.S.C. § 1291. The District Court Judgment was entered on

February 23, 1993 and Bevacqua’s Notice of Appeal was filed on March 4,

1993, therefore making it a timely appeal pursuant to Rule 4(a)(1)

F.R.App.P. The basis for jurisdiction in the Court of Appeals is 28 U.S.C. §

1291.

The Ninth Circuit Court of Appeals affirmed the District Court holding

that a pat-down search, where a customs officer’s hands are laid upon a

person, is a routine search and requires no suspicion whatsoever, and was

authorized even though it was a retaliatory search.

The sole issue in this case is the legality of the contact and personal

——ee

4

search which resulted in Bevacqua’s serious knee injury. If the initial

grabbing of Bevacqua by Barnhart was unauthorized, it was a battery.

19 U.S.C. § 482 provides that a customs officer may search any person

whom he suspects has merchandise subject to duty on his body. Different

standards have been applied by the Circuit Courts as to what suspicion is

necessary, depending upon the intrusiveness of the search. However, the

Statute and the Circuit Courts require “some” or “mere” suspicion before a

personal search can be commenced.

Neither 19 U.S.C. § 482, the broad search powers granted the U.S.

Customs Service by Congress, any ruling by a Circuit Court or this Court,

or the United States Constitution in any way justifies or authorizes the

physical contact of Bevacqua by Bamhart under these facts, found by the

District Court.

ARGUMENT

This is not a drug-smuggling case. This is a case about a United States

citizen who was performing his job for the Union Pacific Railroad Com-

pany at a time when the U.S. Customs Officers in Eastport, Idaho initiated

a retaliatory search on certain employees of Union Pacific. The District

Court specifically made the following factual finding:

The court finds that the heightened inspections on May 20 and

May 21 were in retaliation for the noise problem. The failure of the

railroad to satisfy Inspector Bamhart’s complaints on May 19 was a

proximate cause of the heightened inspection commencing on May 20.

Appendix at 3a-4a.

5

The District Court also found that the Customs Department Manual

specifically prohibited any retaliatory searches. Appendix at 21a.

19 U.S.C. § 482, the statute which aliows customs officers to search

persons, beyond question, requires suspicion and states as follows, in

pertinent part:

Any of the officers or persons authorized to board or search vessels

may stop, search, and examine. . . any vehicle, beast, or person, on

which or whom he or they shall suspect there is merchandise which is

subject to duty, or shall have been introduced into the United States in

any manner contrary to law. . . and to search any trunk or envelope,

wherever found, in which he may have a reasonable cause to suspect

there is merchandise which was imported contrary to law. (emphasis

added)

Furthermore, the District Court made the following finding of fact:

That some suspicion is required in order to conduct a personal search at

the border is clearly recognized by the Customs Service. The U.S. Cus-

toms Service Inspector’s Handbook (1978 edition) § 9.12.1 states in

pertinent part:

‘The search authority of Customs officials is broader than that

vested in other Federal officers. This is because of the recog-

nition that such search authority is essential to the proper

enforcement of the laws governing the entrance of persons and

things into the U.S. This essential authority must be zealously

guarded against any abuse. Customs search authority is based

on real suspicion and articuable facts that merchandise or

contraband is being introduced into the U.S. contrary to law. . .

‘a. A personal search is not a routine search, and the decision

to perform such a search is not to be taken lightly. A personal

search cannot be initiated as a retaliatory or punitive mea-

sure...

As

6

‘pb. There are three types of personal searches. Each of these

searches require a different degree of suspicion that contraband

or merchandise is concealed on the person.

(1) Patdown. A pat down of a person’s clothing will not be

made as a matter of routine but only when it is deemed neces-

Sary as a result of some suspicion on the part of the Customs

officer that there is merchandise or contraband which is being

introduced into the U.S. contrary to law. A pat down is always

the first step in a personal search.’

The Customs Law Course § 3.600 entitled Border Search and Seizure

of Persons provides in pertinent part:

‘People may be seized and subjected to a pat-down search. By policy,

some or mere suspicion is needed to pat-down. Some or mere

suspicion can be as little as a hunch.’

Appendix at 21a.

Also, the District Court found that the customs officers had absolutely no

suspicion that Bevacqua was smuggling, armed, or violating any laws. In

this regard, the court made this factual finding:

Under the law of the Ninth Circuit, and as set forth in the Customs

regulations, minimal or mere suspicion is required for such a personal

pat-down search. The court finds that the customs officers had abso-

lutely no suspicion, not even a hunch, that Mr. Bevacqua was smug-

gling illegal goods into the country, or that he was armed with a

dangerous weapon. The court is satisfied that Inspector Barnhart did

not have the authority to insist that Bevacqua proceed to secondary

inspection and force him there for the purpose of conducting a pat-

down search and/or frisk, both under Customs Directives, and the law

of the Supreme Court and the Ninth Circuit.

Appendix at 32a.

As set forth above, the District Court found that the Customs Department |

had determined that a pat-down search is a personal search and that a |

personal search is not a routine search.

OES Tne et

The Ninth Circuit, along with the Second, Fifth, and Eleventh Circuits

have all held that the level of suspicion to authorize a personal search of a

” 466

person at the border, i.e. a pat-down search, is “some”, “mere”, or “mini-

mal”. In this regard, the Ninth Circuit has so ruled in United States v.

Palmer, 575 F.2d 721 (1978), cert. denied, 439 U.S. 875; United States v.

Grayson, 597 F.2d 1225, 1228 (9th Cir. 1979), cert. denied, 444 U.S. 875

(citations omitted); United States v. Carter, 563 F.2d 1360, 1361 (9th Cir.

1977); United States v. Couch, 688 F.2d 599, 604 (9th Cir. 1982), cert.

denied, 459 U.S. 857 (citations omitted); United States v. Wilmot, 563 F.2d

1298, 1300 (9th Cir. 1977); United States v. Des Jardins, 747 F.2d 499 (9th

Cir. 1984). In addition the Second Circuit in United States v. Glaziou, 402

F.2d 8 (2d Cir., 1968) has so ruled as has the Eleventh Circuit in United

States v. McMurray, 747 F.2d 1417 (11th Cir., 1984) and the Fifth Circuit

in Thomas v. United States, 372 F.2d 252 (Sth Cir., 1967).

A search which is commenced by a customs officer in retaliation against

a citizen or group of citizens is, on its face, unauthorized. Furthermore, the

Customs Department has clearly prohibited any of its officers from per-

forming a retaliatory search as found by the District Court. Quite simply,

there is never any authority or justification for labeling a retaliatory search

as a routine search, especially when the Customs Department specifically

and unequivocally prohibits such retaliatory search.

The Ninth Circuit has now attempted to justify the personal search of

Bevacqua by finding that the search was routine. As a matter of iaw, the

8

search was not routine when it was found by the District Court to be

retaliatory.

The Ninth Circuit’s decision, albeit unpublished, is in direct conflict with

the Ninth Circuit’s other six decisions and the above-mentioned decisions

from the Second, Fifth and Eleventh Circuits. On this basis alone, this

Court should grant Bevacqua’s petition.

Furthermore, the Ninth Circuit, having already ruled in six separate

decisions that a pat-down search under 19 U.S.C. § 482 requires “some”

suspicion, cannot in an unpublished opinion, eradicate this serious battery

claim without departing from the accepted and usual course of judicial

proceedings. This action calls for an exercise of this Court’s power of

supervision.

Finally, there are virtually no cases in American jurisprudence where the

battery of a citizen by a customs officer revolves on the officer’s authority

to lay hands upon the citizen. It is of extreme importance to the citizens of

our country that the U.S. Customs Department is not given the authority to

make unprivileged contact with our citizens, causing serious personal

injury, with no relief available. This has occurred in this case because the

Ninth Circuit has ruled that a retaliatory search with no suspicion whatso-

ever is routine. Such search, as a matter of law, conan be routine.

In this regard, Bevacqua is very cognizant of the war against drug

smuggling at our nation’s borders and Bevacqua appreciates the wide

powers bestowed upon the U.S. Customs Department to search for illegal

a

9

drugs and contraband. However, when a customs officer acts in retaliation,

as specifically found by the District Court, and in direct violation of the

written prohibition of the U.S. Customs Department, our citizens are

entitled to protection.

Furthermore, when a customs officer, acting in retaliation, commences to

lay hands upon a person’s body when he has ng suspicion whatsoever, not

even a hunch, that he is violating any laws, the citizen is entitled to protec-

tion. Bevacqua is not a drug smuggler and no question exists of drugs

being confiscated due to an illegal search.

This is an issue of exceptional importance which has wended its way

through the District Court and on through the Ninth Circuit Court of

Appeals with Bevacqua’s relief being denied, first, because the District

Court mistakenly ruled that a battery is not cognizable under the Federal

Tort Claims Act and secondly, because the Ninth Circuit has found a

retaliatory search with no suspicion to be a routine search.

19 U.S.C. § 482, the Customs Department Manual, and the decisions of

the Circuit Courts of Appeal mandate that this search was not a routine

search and that this search was unauthorized.

ae

10

CONCLUSION

For the foregoing reasons, the Court should grant this petition for writ of

certiorari.

Res pe submitted,

tna Clank tt

Alexander (Zander) Blewett, III

HOYT & BLEWETT

P.O. Box 2807

Great Falls, MT 59403

(406) 761-1960

Attomeys for Petitioner

Eugene F. Bevacqua

January 16, 1995

APPENDIX

la

UNITED STATES DISTRICT COURT

DISTRICT OF IDAHO

EUGENE F. BEVACQUA, NO. CIV-91-0178-N-HLR-JLQ

Plaintiff,

VS. MEMORANDUM OPINION,

UNITED STATES OF AMERICA FINDINGS OF FACT AND

Defendant. CONCLUSIONS OF LAW

The above-entitled matter came on for trial by the court on September

21, 1992. The Plaintiff appeared personally and through his attorney

Alexander Blewitt III]. The Government was represented by D. Marc

Haws, Assistant United States Attorney for the District of Idaho. Evidence

was introduced, and the court heard the argument of counsel. The court

rendered an oral opinion with findings of fact. Supplemental briefs were

thereafter submitted by the parties on the issues of law. This Opinion is

intended to be the final decision of the court and shall replace any portion

of the court’s oral opinion that is inconsistent herewith. Being fully

advised in the premises, the court makes the following:

2a

FINDINGS OF FACT

This case arises from an incident occurring on May 21, 1990 at the

United States/Canada border at Eastport, Idaho. Plaintiff brought this

action pursuant to the Federal Tort Claims Act, 28 U.S.C. § § 1346 (b),

2671 through 2680, claiming he has suffered damages as a result of

injuries sustained by the acts of Keith Barnhart, a customs inspector, and

an agent of the United States Department of Treasury.

The Plaintiff, Eugene F. Bevacqua is a trainman employed by the

Union Pacific Railroad Company (UP), and lives in Spokane, Washington.

He has been a trainman with the UP since March 30, 1973. As a U.P. crew

member, Mr. Bevacqua had made the run from Spokane, Washington to

the United States/Canada border at Eastport, Idaho on numerous

occasions. Mr. Bevacqua had made the same number of retum trips from

Eastport to Spokane.

Essentially the runs are scheduled as follows: a UP crew of three or

four trainmen pulls a loaded train from Spokane, Washington to Eastport

the first day, then stays overnight at Eastport. The following day, using the

same engines or “power units’, they cross the border into Canada, to

attach their power units to a string of Canadian Pacific Railroad (CP) cars

loaded and sitting in the rail yard on the Canadian side of the border. The

crew then pulls the Canadian cars through the Eastport Port of Entry and

retums to Spokane.

3a

Over some twenty years, the Customs officers at Eastport had allowed

the trains and train crews to pass back and forth across the border with

only cursory examination. They would observe the train pulling through

the Port of Entry, and would only occasionally stop the train to inspect an

unusual load. The crews were never personally questioned or inspected.

However, on May 20, 1990, without prior notice to anyone, the customs

officers at Eastport instituted a temporary heightened inspection of the UP

trains and crews.

Prior to the heightened inspection instituted on May 20, 1990, customs

officers at Eastport had made ongoing complaints about the noise

generated from the UP trains at the border. On May 19, 1991, this problem

was compounded by an air valve on the train, repeatedly popping off,

causing obtrusive noise interference with the customs officers at the

inspection station in Eastport. Customs Inspector Keith Barnhart was upset

on May 19th about the noise, and the lack of response to his complaints.

He conveyed this to Thomas Osborme, an Engineer for the UP, and stated

that if the railroad did not want to cooperate on that problem there could

be and would be heightened inspections, and that the Customs Officers

would require strict compliance with the law.

The court finds that the heightened inspections on May

20 and May 21 were in retaliation for the noise problem.

The failure of the railroad to satisfy Inspector Barnhart’s

i i

4a

complaints on May 19 was a proximate cause of the heightened inspection

commencing on May 20. However, the court also finds that, despite the

retaliatory reason for the heightened inspections the officers were entitled

to conduct an intensified inspection of the train crews, as it took place on

May 20 and May 21.

The first UP crew to be subjected to the heightened inspection crossed

the border on its return run with the Canadian cars on May 20, 1990. The

crew members were asked for identification. When identification cards

issued by the UP Railway were tendered, Inspector Barnhart informed

them that such ID was inadequate because it did not include the person’s

date of birth, and that a driver’s license or birth certificate was necessary.

The crew, including Engineer Lloyd Wayne Dorsey complied, by

providing their drivers licenses. Additionally, as a result of this heightened

inspection,Mr. Dorsey’s personal luggage was inspected and a prescription

pill found in an aspirin bottle was seized and disposed of.

Mr. Dorsey spoke with the crew scheduled to make the next scheduled

Spokane to Eastport run, which consisted of Conductor Glen Batty,

Engineer Jim Johnson, an Engineer Trainee, Dean Davis, and Brakeman,

Plaintiff Eugene Bevacqua, warning them of what to expect

when they reached Eastport on May 21, 1991. The May 21

crew discussed the situation, and decided that they would

only minimally comply with the customs officers’

—————————

5a

directions. It was decided that if asked for identification, they would

provide only their railroad identification cards.

On the moming of May 21, 1990, the UP crew crossed the border into

Canada with their power units, attached the CP cars, and pulled into the

depot. The crew was told to stop and come into the depot. Supervisory

Customs Inspector Keith Bamhart and Customs Officer Susan Wilson met

with the crew in a room in the depot. Inspector Barnhart asked Conductor

Glenn Batty to sign a form in order to verify that the signature on the

cargo manifest for the train was that of Mr. Batty. Conductor Batty, upset

by the situation, reluctantly signed the manifest form, and placed a call to

his supervisor Sam Tortorelli, Jr. in Spokane. Mr. Tortorelli informed

Conductor Batty that the crew should comply with the custom officers’

directions. At about this time, all crew members were asked to produce

identification. The crew tendered their railroad IDs as they had previously

agreed, but were told that identification showing each crew member’s birth

date was required.

Somewhat reluctantly, Conductor Batty, Mr. Johnson and Mr. Davis

produced their drivers licenses. Each crew member, and Mr. Bevacqua in

particular, was upset over the heightened inspection, and they appeared to

have a chip on their shoulders. Bevacqua was obdurate and obstreperous.

He uttered his displeasure with comments such as “this is bullshit”, but

6a

eventually tossed his drivers license through the air onto the table in front

of Officer Wilson.

The evidence does not establish that, when Bevacqua threw the drivers

license through the air, he intended it to strike Inspector Wilson; that the

license hit Inspector Wilson; or that there was any assault or battery on

Inspector Wilson. Wilson testified that she didn’t even know the license

was in front of her until she looked down and saw it on the table. The prior

conduct of Mr. Bevacqua, and his method of throwing his license across

the table incited Mr. Barnhart, who also had a “chip on his shoulder.”

Barnhart became angry, and he, without any further discussion with

anyone, said he was going to take Mr. Bevacqua to “secondary.” Mr.

Bevacqua did not know what “secondary” was, and Inspector Barmhart did

not explain to Mr. Bevacqua where he was going or what “secondary”

meant. The court finds that the evidence established that Barnhart merely

said ““You’re coming with me.” Mr. Bevacqua said “I’m not going

anywhere with you,” and the trouble began.

The court is unable to find that there was any factual basis that existed

in the depot at the time Inspector Bamhart took custody of Mr. Bevacqua

that would give a reasonable officer any suspicion at all that Mr. Bevacqua

was smuggling contraband, or items subject to duty, or was

armed, or had violated the law in any manner. The court finds that

Defendant’s contention that the officers noticed bulges in

7a

Bevacqua’s pockets is not supported by the evidence, and is, in fact,

merely an afterthought. There was nothing to create any suspicion at all.

Despite Mr. Bevacqua’s use of objectionable language and his

argumentive nature about what was going on, he did finally comply with

the order to furnish the requested driver’s license.

Inspector Bamhart took Mr. Bevacqua by the arm immediately upon

his statement that “I’m taking you to secondary,” or words to that effect.

Mr. Bevacqua physically resisted going with Inspector Bamhart. When

they got outside, Mr. Bevacqua resisted even more. At this point, Inspector

Barnhart took Mr. Bevacqua in a come-along-hold and again said he was

“taking him to secondary”. Once again, the inspector did not explain what

he meant by “secondary” or just where he was taking Mr. Bevacqua.

Inspector Bamhart forced Mr. Bevacqua to the Customs Port of Entry

building. However, the court finds that Inspector Bamhart did not use

excessive force in taking Mr. Bevacqua in a come-along-hold to the Port

of Entry building. Mr. Bevacqua resisted both physically and vocally.

Customs Inspector, Don Solu, Immigration and Naturalization Inspector,

Tim Rynes, and Customs Area Director, Art Hancock came out of the Port

of Entry Building to assist Inspector Barnhart.

After Barnhart got Bevacqua into the Port of Entry Building,

he maneuvered him up to a counter, told him to place

8a

his hands on the counter, step back, and spread his legs. Mr. Bevacqua

continued to resist, and refused to comply. Inspector Rynes pinned his

hands to the counter, while Inspector Bamhart forced his left foot between

Bevacqua’s feet, and with a “slide kick” spread his legs. At this, Mr.

Bevacqua cried out “Ow, my knee”, and appeared to slump or begin to

fail. Inspector Barnhart had hold of Bevacqua by the belt and managed to

keep him upright. The resulting pat down search and/or frisk revealed no

weapons or contraband of any kind. The court finds the evidence does not

establish that Inspector Bamhart tumed around and kicked Mr. Bevacqua

in the medial portion of the knee; rather Barnhart forced Bevacqua’s feet

apart in accordance with standard customs procedure, and the court finds

this action caused an injury to Mr. Bevacqua, i.e. tears in the meniscus of

his knee. The entire crew, including Mr. Bevacqua was subsequently

released to complete their run with the train into Spokane.

Shortly after the incident, Mr. Bevacqua’s left knee began to swell,

and shortly after his retum to Spokane, Bevacqua saw a physician who

diagnosed a left knee sprain. On June 12, 1990, Dr. Richard Treloar

performed anthroscopic surgery on Plaintiff’s knee and made the

following findings: |

1. Mr. Bevacqua had badly torn lateral and medial menisci,

the cartilage providing the weight bearing and the support in

the movement of the knee, with a recent extension to

9a

a previous tear in the left lateral meniscus;

2. One of the flaps of tissue from the old torn lateral meniscus had

slipped into the joint, or “notch” and had become lodged there. It is

uncertain whether this flap had been displaced and lodged in the notch by

the May 21, 1990 incident;

3. Mr. Bevacqua had no anterior cruciate ligament in his left knee.

Mr. Bevacqua undertook physical therapy following the anthroscopic

surgery, and remained off work for the UP for over a year. In February

1991, Dr. Richard P. Treloar opened Plaintiff’s left knee, and by the use of

a graft and screws, reconstructed the missing anterior cruciate ligament.

After further extensive rehabilitation and physical therapy, Mr. Bevacqua

was released by Dr. Treloar to go back to work in January, 1992. The

railroad doctor insisted upon a work hardening program before allowing

Plaintiff to return to work as a brakeman. Upon completion of that

program, Mr. Bevacqua returned to work as a brakeman in the spring of

1992, where he has been employed to date. Mr. Bevacqua contends that he

is unable to continue in his employment, due to the condition of his knee,

and will be forced to retire early from the railroad. The Plaintiff Eugene

Bevacqua is currently 37 years of age.

Mr. Bevacqua had suffered tears in his left meniscus, and

had lost his anterior cruciate ligament during at least one of

——eeewee_———

10a

two previous accidents.' However, the May 21, 1990 incident resulted in a

portion of Mr. Bevacqua’s left meniscus being locked into a notch,

representing an acute displacement of the previously tom cartilage, as well

as a peripheral extension of the tear in his left medial meniscus. There is

no dispute that Mr. Bevacqua, prior to the 1990 incident, had no anterior

cruciate ligament, and had prior tears in the meniscus. However, Mr.

Bevacqua, while periodically having the knee lock up, had been able to

perform his functions on the railroad without any difficulty.

FEDERAL TORT CLAIMS ACT

“In a suit against the United States, there cannot be a right to money

damages without a waiver of sovereign immunity ...”’ United States v,

Testan, 424 U.S. 392 (1976). Plaintiff brought this action pursuant to the

Federal Tort Claims Act, 28 U S. C. § 2671, et seq. which provides a

partial waiver of sovereign immunity. 28 U.S.C. § 2674 states that “The

United States shall be liable, respecting the provisions of this title relating

to tort claims, in the same manner and to the same extent as a private

individual under like circumstances...’ The Federal Tort Claims Act does

not make the United States liable for all torts committed by its agents. The

FTCA “provides a waiver of sovereign immunity for

' In 1974, Mr. Bevacqua fell off a box car, injuring his left knee.

In 1978, he tripped over a railroad tie in the dark,reinjuring the

left knee.

lla

tortious acts of an agency’s employees only if such torts committed in the

employ of a private person would have given rise to liability under state

law. Pereira y. U.S. Postal Service, 964 F. 2d 873, 876 (9th Cir. 1992).

Intentional Torts

Plaintiff contends that the detention and search at the border

constituted an unlawful arrest, and that Inspector Barnhart assaulted and

battered the Plaintiff. However, the FTCA also specifies torts for which

the Government can not be held liable. The FTCA expressly excludes “any

claim arising out of assault, battery, false arrest... 28 U.S.C. 2680 (h).

Therefore, for purposes of the FTCA, the court need not find whether

Bevacqua’s detention was, in reality, an unlawful arrest. The court finds

that the FTCA does not provide subject matter jurisdiction over any claim

arising out of assault, battery, or false arrest. The question is not whether

Barnhart’s taking of Mr. Bevacqua to secondary inspection constituted an

“arrest”, but rather, whether the events that took place at the border on

May 21, 1990 constitute a basis for liability of the Government. Clearly

Plaintiff’s claims of assault, battery, and false arrest are not cognizable

under the FTCA.

Negligence

Plaintiff contends he is not claiming that the customs

officers were negligent. However, much of Plaintiff’s argument

12a

is that the customs officers had a duty to follow customs regulations and

policies, which they breached. This is clearly a negligence argument. The

violation of a statute or regulation having the force of law can constitute

negligence per se. See Leliefeld v. Johnson, 104 Idaho 357, 370, 659 P. 2d

111.

Plaintiff cites Berkovitz v. United States, 486 U.S. 531 (1988) and

Arizona Maintenance v. United States, 864 F. 2d 1497 (9th Cir. 1989). In

both of those cases, the plaintiffs alleged negligence. The courts stated that

when a federal statute, regulation, or policy specifically prescribes a course

of action for an employee to follow, the employee has no rightful option but

to adhere to the directive. Therefore, the discretionary function exception to

the FTCA can not apply.

Here, Defendant is not contending that the discretionary function

applies. Both the Berkovitz and Arizofia Maintenance courts analyzed the

discretionary function exception and did not address the issue of negligence

per se. However, in Jacobo v. United States, 853 F. 2d 640 (9th Cir. 1988)

the court held that a navy manual is not a regulation, and does not have the

force of law; therefore the failure to follow policies set forth in the manual

does not constitute negligence per se. Nevertheless, the fact that Inspector

Barnhart did not follow the procedures and policies set forth in the

Customs Manual does not constitute negligence per se, does not end the

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negligence inquiry.

The elements of a common law negligence action in Idaho are (1) a

duty, recognized by law, requiring the defendant to conform to a certain

standard of conduct; (2) a breach of that duty; (3) the defendant’s conduct

was a proximate cause of the resulting injury; and (4) actual loss or

damage to the plaintiff. Black Canyon Racquetball v, Idaho First Nat'l

Bank, 119 Idaho 171, 175-76, 804 P. 2d 900, 904-05 (1991).

The court finds that Agent Bamhart did have a duty to follow the law

as set forth by the courts and as set forth in the customs manual to not

conduct a personal pat-down search without minimal suspicion of

wrongdoing as discussed infra; that Agent Barnhart breached that duty,

which was a proximate cause of the injury to Mr. Bevacqua’s knee; and

which actually damaged Mr. Bevacqua.

However, there can be two or more proximate causes of an injury,

which may originate from separate and distinct sources operating

independently of each other. Pigg v. Brockman, 85 Idaho 492, 381 P. 2d

286 (1963). Idaho has a comparative negligence statute which applies to

all negligence actions where there is negligence attributable to the person

seeking to recover. See Harrison v. Taylor, 115 Idaho 588, 768 P. 2d 1321

(1989). Idaho Code § 6-801 (1987 Supp.) provides in pertinent part:

Contributory negligence shall not bar recovery in an

action by any person or his legal representative to

l4a

recover damages for negligence or gross negligence resulting in

death or in injury to person or property, if such negligence was

not as great as the negligence or gross negligence of the person

against whom recovery is sought...

Under the statute, a plaintiff found to be more than forty-nine percent

negligent is barred from any recovery. Seppi v. Betty, 99 Idaho 186, 188,

579 P. 2d 683, 685 (1978). The court finds not only that Inspector Barnhart

was negligent which was a proximate cause of plaintiff’s injury, but that

Mr. Bevacqua was also negligent in not complying with his duty not to

resist an arrest, even though unlawful, discussed infra, and that his

negligence was also a proximate cause of his injury. The court finds that

the evidence established that Mr. Bevacqua’s negligence was as great as

that of Inspector Bamhart. Therefore, the court finds the Government can

not be found liable for Plainuff’s damages under a negligence theory

pursuant to the FTCA.

FOURTH AMENDMENT

Plaintiff argues that the detention and pat-down search of Bevacqua

was a violation of the Fourth Amendment requirement of reasonableness.

However, constitutional torts are not actionable under the FTCA. Pereira v.

U.S. Postan Service, 964 F. 2d 873 (9th Cir. 1992). Neither can the

United States be held liable for a constitutional eit under Bivens vy.

Six Unknown Named Agents of the Fed, Bureau of Narcotics, 403 U.

S. 388 (1971). Holloman v, Watt, 708 F. 2d 1399, 1401-02 (9th Cir.

1Sa

1983), cert, denied, 466 U. S. 958, 1984). “Constitutional torts are, by

definition founded on federal, not state law. Therefore, federal district

courts have no jurisdiction over the United States where claims allege

constitutional torts.” Pereira, supra at 876. See also, Kreines v. United

States, 959 F. 2d 834, 838 (9th Cir. 1992) (“In the context of the Fourth

Amendment, the constitutional criteria for lawful conduct are distinct from

those imposed by state tort law.”’)

Amsberg v, United States, 757 F. 2d 971, (9th Cir. 1985), cert, denied,

474 U.S. 1101 (1986) was an action brought against the Government

under the FTCA and the Fourth Amendment, seeking damages for

execution by IRS agents of an invalid material witness arrest warrant, and

against the agents, alleging liability under Bivens. The court stated:

Arnsberg argues that we should imply a right of action against

the United States directly under the fourth amendment. In

essence, he asks us to extend the theory of Bivens v, Six

Unknown Named Agents, 403 U. S. 388... (1971) to include a

remedy against the United States...

The doctrine of sovereign immunity, however, prevents us from

extending Bivens in the manner which Arnsberg seeks. “In a suit

against the United States, there cannot be a right to money

damages without a waiver of sovereign immunity...” United

States v, Testan, 424 U. S. 392, 400... (1976). Arnsberg argues

that because his Bivens right is a constitutional one, a non-

constitutional doctrine of sovereign immunity ought not to take

precedence over it. While this argument is not without logic, it is

foreclosed by our recent ruling in Holloman vy. Watt, 708 F. 2d

1399, 1401-02 (9th Cir. 1983), cert, denied, U.S.___, 104 S.

Ct. 2168... (1984), that Bivens does not provide a means of

Cutting through the sovereign immunity of the United States

itself.

eT

16a

See also Clemente v, United States, 766 F. 2d 1358, 1363 (9th Cir.

1985), cert. denied, 474 U.S. 1101 (1986) (“We cannot accept... that

Bivens... logically compel(s) the United States to be held liable in '

damages for the constitutional torts of its officers.)

However, the Government has not alleged sovereign immunity as a

defense to liability under the Fourth Amendment. Nevertheless. “although

neither party raised the issue, a federal court must determine sua sponte its

proper jurisdiction.” Matter of Pizza of Hawaii, Inc., 761 F. 2d 1374, 1377

(9th Cir. 1985). The court finds that Plaintiff has not established a

jurisdictional basis for his Fourth Amendment claims against the United

States. Therefore, the court need not address the qualified immunity

argument raised for the first time in Defendant’s Response to Plaintiff’s

Post-Trial Brief. However, because the entire trial, as well as the post-trial

briefs focused primarily on the reasonableness of the border search and

seizure, the court is satisfied some observations about the reasonableness

of the seizure and search in question would be appropriate.

THE BORDER SEARCH

As noted above, constitutional torts are founded on federal,

not state law, and are therefore not cognizable under the

FTCA. The parties have not cited, nor has the court found,

any reported Idaho cases dealing with personal searches and

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seizures at the border. Neither has the court seen any cases holding the

Government liable for money damages due to an unreasonable border

search and/or seizure, under any theory. However, there are a great many

Supreme Court and Ninth Circuit cases dealing with the reasonableness of

border searches. All of them deal with whether or not evidence seized

during an alleged unreasonable search at the border should be suppressed

in the context of a criminal charge.

19 U.S. C. § 482 provides:

Any of the officers or persons authorized to board or search

vessels may stop, search, and examine... any vehicle, beast, or

person, on which or whom he or they shall suspect there is

merchandise which is subjcct to duty, or shall have been

introduced into the United States in any manner contrary to

law... and to search any trunk or envelope, wherever found, in

which he may have a reasonable cause to suspect there is

merchandise which was imported contrary to law.

The Supreme Court explicitly stated that border searches

constitute a special category under the Fourth Amendment in United

States v. Ramsey, 431 U. S. 606 (1977). The Court reviewed the

history of judicial treatment of border searches stating: “searches

made at the border, pursuant to the long-standing right of the

sovereign to protect itself by stopping and examining persons and

property crossing into this country, are reasonable simply by virtue of

the fact that they occur at the border...” Id. at 616. In United States v,

Montoya de Hernandez, 473 U. S. 531 (1985), which involved the

extended detention and non-routine search of a balloon swallower the

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Court held that “detention of a traveler at the border, beyond the scope of a

routine customs search and inspection, is justified at its inception if

customs agents, considering all the facts surrounding the traveler and her

trip, reasonably suspect that the traveler is smuggling contraband in her

alimentary canal.” Customs agents may “stop, search, and examine” any

“vehicle, beast or person” upon which an officer suspects there is

contraband or “merchandise subject to duty.” Id. at 537-39 (emphasis

added).

“The border search occupies a unique spot in fourth amendment

jurisprudence.” United States v. Des Jardins, 747 F. 2d 499, 502 (9th Cir.

1984), vacated on other grounds, 772 F. 2d 578 (9th Cir. 1985). Unlike

almost all other searches, a routine border search may be initiated

without a warrant, probable cause, or even articuable suspicion. United

States v, Ramsey, supra “Travelers may be so stopped in crossing an

international boundary because of a national self protection reasonably

requiring one entering the country to identify himself as entitled to come

in, and his belongings as effects which may be lawfully brought in.”

Carroll v, United States, 267 U. S. 132, 154 (1925). Every person

crossing our border may be required to disclose the contents of his

baggage, and of his vehicle, if he has one. The mere crossing of the

border is sufficient cause for such a search. Even “mere suspicion” is

not required. “We assume that the same rule would apply to the

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contents of his or her purse, wallet, or pockets. United States v, Wilmot,

563 F. 2d 1298, 1300 (9th Cir. 1977).

Such searches are routine. To determine whether a border search was

routine turns on the degree of intrusion into a border entrant’s legitimate

expectations of privacy. United States v, Quintero-Castro, 705 F. 2d 1099,

1100 (9th Cir. 1983). More concretely, routine searches are defined as

those which do not pose a “serious invasion of privacy” and which do not

embarrass or offend the average person. United States v, Chase, 503 & 2d

571, 573-74 (9th Cir. 1974), cert, denied, 420 U. S. 948 (1975).

While a border search may be initiated in the absence of both a

warrant and probable cause, the officer conducting the search must

nonetheless proceed in a reasonable manner. United States v, Des-

Jardins, supra, 747 F. 2d 499. “Thus, while every person crossing

the border may be required to disclose the contents of his or her

baggage based on nothing more than the fact that he has crossed the

border, more intrusive searches must be supported by some level of

suspicion” and must be reasonable. Id, at 504. In each case the need

for the particular search is balanced against the invasion that the

search entails. United States v. Guadalupe-Garza, 421 F. 2d 876

(9th Cir. 1970). A simple pat-down search is “permissible with

only a minimal showing of suspicion,” United States v. Couch,

688 F. 2d 599, 604 (9th Cir. 1982), cert. denied, 459 U. S. 857

20a

(citations omitted), whereas a strip search must be based on “real

suspicion”. Guadalupe-Garza, supra at 876, and a body cavity search

requires a “clear indication” that the suspect is carrying contraband in a

body cavity. United States v. Aman, 624 F. 2d 911, 912-13 (9th Cir. 1980).

The “minimal suspicion” standard for a pat-down search is the same

whether the officer is looking for a weapon or illegal contraband. Des

Jardins, supra 747 F. 2d at 504.

Moreover, we have never indicated that a higher standard

applies when the officer conducting the search seeks something

other than a weapon. Thus, the initial pat-down search was

permissible so long as only minimal suspicion was present.

This standard was clearly met. The fact that appellant’s

Suitcase contained a number of objects frequently used in

narcotics smuggling alone is sufficient to supply the minimal

suspicion necessary to justify the initial pat-down search.

Id. at SOS (emphasis added).

Defendant cites numerous cases for the proposition that forcing Mr.

Bevacqua to secondary and conducting a pat-down search was just a

routine border search, requiring no suspicion other than the subjective

knowledge that he crossed the border. However, these cases do not support

the contention. In all of them there was clearly some suspicion of

wrongdoing. For example, in United States v. Sanchez-Robles, 927 F.

2d 1070 (9th Cir. 1991), the customs inspector at primary inspection

noticed a strong odor of marijuana inside the van, causing him to

send the yan to secondary for further inspection. A pat-down search

of Sanchez-Robles was also conducted. The court did not

TT

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address the question of whether “minimal suspicion” was present.

However, Clearly, under the facts of that case, the customs officers had at

least minimal suspicion that Sanchez-Robles was breaking the law. See

also Des Jardins, supra.

That some suspicion is required in order to conduct a personal search

at the border is clearly recognized by the Customs Service. The U. S.

Customs Service Inspector’s Handbook (1978 edition) § 9.12.1 states in

pertinent part:

The search authority of Customs officials is broader than that vested in

other Federal officers. This is because of the recognition that such search

authority is essential to the proper enforcement of the laws goveming the

entrance of persons and things into the U. S. This essential authority must

be zealously guarded against any abuse. Customs search authority is based

on real suspicion and articuable facts that merchandise or contraband is

being introduced into the U. S. contrary to law...

a. A personal search is not routine search, and the decision to perform such |

a search is not to be taken lightly. A personal search cannot be initiated as a

retaliatory or punitive measure...

b. There are three types of personal searches. Each of these searches require

a differert degree of suspicion that contraband or merchandise is concealed

on the person.

(1) Patdown, A pat down of a person’s clothing will not be made as a

matter of routine but only when it is deemed necessary as a result of some

Suspicion on the part of the Customs officer that there is merchandise or

contraband which is being introduced into the U. S. contrary to law. A pat

down is always the first step in a personal search.

The Customs Law Course § 3.600 entitled Border Search and

Seizure of Persons provides in pertinent part:

People may be seized and subjected to a pat-down search. By

policy, some or mere suspicion is needed to pat-down. Some

or mere suspicion can be as little as a hunch.

i iii

22a

For policy reasons, Customs distinguishes between a pat-down

and a frisk. A pat-down is for merchandise. A frisk is for

weapons. A quick “yes” to the mental question, “Are there facts

which cause me to suspect that my safety or the safety of those

around me may be in danger? shall always result in a frisk of the

person for weapons...

A Customs Directive provides in pertinent part:

The Constitution guarantees the protection of an individual’s

rights against unreasonable search and seizure. Officers of the

U. S. Customs Service must be diligent in their efforts to protect

those rights while still accomplishing their enforcement mission.

The courts recognize that Customs authority for border search is

of the broadest possible character. The right to inspect travelers

and goods entering the United States without a warrant or

probable cause places an important responsibility upon the

Customs officer. The officer must not violate any clearly

established statutory or constitutional rights which a reasonable

officer would have known and must conduct the search in a

reasonable and professional manner.

The type and level of suspicion demanded by the reasonableness

requirement is “incapable of comprehensive definition... [I]n each case

the need for the particular search is balanced against the invasion that the

search entails.” Guadalupe-Garza, supra, 421 F. 2d at 878. The Ninth

Circuit has provided some general guidelines. In United States v. Palmer,

575-F. 2d 721 (1978), cert. denied, 439 U. S. 875 the court stated:

[fjor examination of vehicle(s), luggage, contents of

pockets or purse, no suspicion at all is required; for a

strip search, “real suspicion directed specifically to that

person” is required... But between a search of pockets

and a strip search there can be a wide variety of types of

intrusion, with varying degrees of intrusiveness... It is

hardly feasible to enunciate a clear, and simple standard

23a

for each.

Id. at 723.

Nevertheless, the Ninth Circuit, in analyzing pat-down searches at the

border, has required a certain level of suspicion described as “mere

suspicion.” United States v. Grayson, 597 F. 2d 1225, 1228 (9th Cir. 1979),

cern. denied, 444 U. S. 875 (citations omitted); United States v. Carter, 563

F. 2d 1360, 1361 (9th Cir. 1977). In Carter the defendant arrived at

customs and passed through the initial customs check. Thereafter, he was

taken to a secondary search room where the customs inspector asked the

defendant to empty his pockets, which he did. The customs inspector then

asked the defendant to remove his overcoat and suit coat. The defendant

complied and the inspector found a package of heroin in the suit coat. The

court stated:

Those entering the country may be examined as to their

“belongings and effects” without violating the Fourth

Amendment. Belongings and effects have been held to include

the contents of a person’s purse, wallet or pockets.

Id. at 404-05 (citations omitted).

Also, the Ninth Circuit has continued to recognize that

some minimal suspicion is required to perform a personal pat-

down search at the border. A simple pat-down search is

“permissible with only a minimal showing of suspicion.”

United States v, Couch, 688 F. 2d 599, 604 (9th Cir. 1982),

cert. denied, 459 U. S. 857 (citations omitted); United States vy.

24a

Carter, supra (“[m]Jere suspicion is enough to justify a non-intrusive border

search such as the “pat down” that occurred here). The same standard

applies whether the officer conducting the search is looking for a weapon

(frisk) or contraband. In the case of a frisk, there must be minimal

suspicion that the safety of an officer or those around him is in danger. A

pat-down for merchandise requires minimal suspicion that the person has

merchandise which is subject to duty. Most recently, the Ninth Circuit has

said “[t]he detention of a traveler who enters the United States must be

based on a reasonable suspicion (rather than minimal suspicion) that he or

she is engaged in smuggling.” United States v. Oba, __-F. 2d___, Slip.

Op. No. 91-10137 (9th Cir., filed November 2, 1992) citing United States

y. Montoya de Hernandez, 473 U. S. 531, 541 (1985).

Here, there was absolutely no reason to suspect that Mr. Bevacqua

was Carrying contraband or merchandise subject to duty. He provided the

requested drivers license, albeit very reluctantly, by throwing it onto the

table. Furthermore, there was absolutely no reason to suspect that Mr.

Bevacqua was armed or that he had done anything illegal. Once Bevacqua

threw his license onto the table, Agent Barnhart took hold of Bevacqua

and said “‘you’re going with me”.

It is not clear whether Defendants are contending the

search of Mr. Bevacqua was a pat-down for merchandise or a

25a

frisk for weapons. None of the customs officials involved were able to

articulate any suspicion, whatsoever, not even a hunch, that Mr. Bevacqua

was Carrying a weapon, or illegal merchandise, or anything subject to duty.

- Secondary Inspection

The next question is whether Agent Barnhart had the authority to insist

that Mr. Bevacqua proceed to secondary inspection and force him there for

a pat-down search. It is undisputed that Inspector Bamhart physically

forced Bevacqua to a secondary inspection area where the pat-down search

was conducted.

A vehicle can be stopped at “reasonably located checkpoints” for brief

initial questioning and can be referred to a secondary inspection area for

further brief questioning “in the absence of any individualized

suspicion...” United States v. Martinez-Fuerte, 428 U. S. 543, 562 (1975).

There, the Supreme Court held that there was no constitutional violation

where motorists were referred Selectively to the secondary inspection area

at the San Clemente checkpoint largely on the basis of apparent Mexican

ancestry, and that border patrol agents are entitled to refer people to the

secondary checkpoint even without any individualized suspicion. See also,

United States v, Morales, Slip Op. No. 91-50513, (9th Cir., amended

November 25, 1992); United States v. Barnett, 935 F. 2d 178, 181-82 (9th

Cir. 1991).

26a

It is asserted the testimony indicates the officer had no

knowledge or suspicion that the vehicle contained any

contraband or that the defendant was involved in any illegal act.

Appellant apparently contends there were two searches, one at

the border and a second in the secondary area, and there must be

suspicion aroused by the border interview in order to justify the

second search.

The border search conducted at the primary area and the

secondary area was one event, not two separate and distinct

searches.

Klein v, United States, 472 F. 2d 847, 848 (9th Cir. 1973).

However, the Klein court also stated “A border search is not one

where probable cause is required. Search and seizure at borders are also

subject to a general test of “reasonableness,” but probable cause is not

required. (emphasis added). The court did not say that no suspicion at all

was required to perform the search. Additionally, Klein involved the

search of an automobile, not a personal pat-down search.

Likewise, in United States v, Troise, 796 F. 2d 310 (9th Cir. 1986), the

court found the stop and inspection of a vessel on the high seas reasonable

where it was unclear what level of suspicion customs officials had,

indicating that they did have some suspicion. In none of the cases dealing

with secondary inspection, was a person forced to secondary inspection for

the sole purpose of conducting a personal pat-down search without any

suspicion of an immigration offense.

Defendant relies on United States v, Sandoval- Vargas, 845 F.

2d 1526 (9th Cir. 1988). (Sandoval- Vargas 1) where the court

27a

Stated that mere entry into the United States is sufficient to form the

Subjective suspicion required to search a “person” or vehicle” at the

border. In that case, defendant Sondoval drove a volkswagon from Mexico

into the United States. At primary inspection, a customs inspector

randomly referred eight vehicles, including Sandoval’s to secondary

inspection to be searched. Marijuana was found hidden in Sandoval’s

vehicle. The sole question before the court was “whether individualized or

reasonable suspicion is required — by Constitution, statute or both —

before a yehicle may b= searched at the border.” Ig. at 1527. (emphasis

added).

The court held that neither the Constitution or statute required

reasonable suspicion for a vehicle search at the border. The court held that

(1) the search of Sandoval-Vegas’ vehicle at the border by customs agents

did not violate the Fourth Amendment; (2) that 19 U. S. C. § 482

goveming routine border searches of vehicles does not impose any

additional limitations beyond those prescribed by the Constitution; and (3)

that on its face § 482 requires “mere suspicion” for a search of a “vehicle,

beast, or person” and “reasonable cause to suspect” for a search of a trunk

or envelope.

Clearly, Sandoval- Vargas involved a search of a vehicle, not a

personal search. Throughout, the court talks about the search of a yehicle.

We conclude, that section 482 governs searches at

the land border. We read section 482 to require only

28a

subjective suspicion for a routine border search of a yehicle, and

we hold that such suspicion is readily supplied by the fact that

the vehicle has entered the country from the outside.

Id. at 1533. (emphasis added).

Thus, Sandoval- Vargas comports with other Ninth Circuit and

Supreme Court decisions regarding routine border searches. However,

Sandoval- Vargas did not involve a personal search of any kind, and there

is nO way to square the Defendant’s suggestion that only subjective

suspicion for a border search of a person is required and that requirement

is satisfied whenever the person being searched has just entered the United

States from the outside with the many Ninth Circuit decisions declaring

that minimal or mere suspicion is required in order to conduct a personal

pat-down search.

So far as we know there is nothing about the search (of the

automobile) that takes it out of the realm of routine border

searches. Sandoval- Vargas was clearly at the port of entry from

Mexico. ...The stipulation does not indicate any extended period

of detention or any unusual, offensive. or intrusive search of the

defendant's person, There was merely a vehicle search by

customs inspectors, typical of those conducted at the border. The

fact that the search occurred at a secondary inspection point is

not sufficient, in itself, to render this a non-routine search. Nor is

the fact that not all cars were searched but only a randomly

selected number. The law is clear that a border search of a

vehicle in those circumstances is per se reasonable within the

meaning of the fourth amendment...

Id. at 1528. (emphasis added).

The Sandoval- Vargas opinion was amended and superseded

by the opinion at 854 F. 2d 1132 (9th Cir. 1988). (Sandoval-

29a

Vargas II). The words in the two opinions are nearly identical. However,

importantly, both opinions state:

... Nevertheless, the language of the statute strongly supports the

view that section 482 requires only subjective suspicion — not

individualized reasonable suspicion — for a routine border search of

a vehicle. i 644 F.2d 1163, 1169 (Sth

Cir. 1981)) (en banc) (“We do not read 19 U.S.C. § 482 as requiring

any suspicion other than the subjective response of a customs

official who considers that the circumstances make such a search

appropriate.”

In Sandoval-Vargas I, the paragraph ends there. Id, at 1532. (emphasis

added). However, in Sandoval - Vargas II, the court added another citation at

the end of the paragraph, Maguire v. United States, 396 F.2d 327, 330 (9th

Cir. 1968) (“mere suspicion” sufficient for search of a vehicle under section

482). Id. at 1138 (emphasis added). In neither opinion, did the court hold

that a personal pat-down search can be conducted at the border without any

suspicion whatsoever.

The Supreme Court has also recognized than the search of an

automobile is “far less intrusive on the rights protected by the Fourth

Amendment than the search of one’s person...” Almeida-Sanchez v, United

States, 413 U.S. 266 (1973).

In United States v, Dorsey, 641 F. 2d 1213 (7th Cir. 1981), Dorsey

arrived at O’Hare Intemational Airport from Kingston, Jamaica. A customs

agent examined Dorsey’s passport and noted that it revealed the following

travel schedule: entered Jamaica on July 21, 1979; entered Panama on July

22, 1979; entered Colombia on July 25, 1979; entered Panama on July 27,

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1979, entered Jamaica on August 13, 1979.

Dorsey was then referred to a separate room for a secondary search of

his luggage. This search revealed only clothing and receipts for $2,700 in

traveler's checks. The agent asked Dorsey to empty his pockets. Dorsey

emptied all his pockets except his left shirt pocket. The agent then

conducted a pat-down search of Dorsey which revealed a cigarette

package in his left shirt pocket. Further inspection of the cigarette package

disclosed a plastic bag containing 58.5 grams of cocaine.

Dorsey sought to suppress the cocaine found in his shirt pocket,

arguing that the pat-down search violated his rights under the Fourth

Amendment. The government relied on United States v. Carter, Supra,

while Dorsey argued that the “real suspicion” standard for a strip search

should be applied. The court rejected both arguments.

Our conclusion that strip search principles are inapplicable does

not lead us to conclude that the instant type of intrusion may be

performed without any degree of suspicion. The Carter case

relied upon by the Government, as well as similar decisions, did

not involve pat-down searches. Instead, they involved a request

to remove an outer garment and subsequent searches of pockets

and thus were performed absent even minimal suspicion.

Likewise, we do not think that those cases which allow the

search of personal effects and belongings, contents of pockets,

- wallets, etc. govern a pat-down search. We believe that the

intrusions on privacy and indignities involved in a pat-down

search exceed those of a search of the contents of a purse or

wallet or of a request to empty pockets.

Id. at 1217. (citations omitted). In support of this finding,

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the court stated:

The Ninth Circuit, in analyzing pat-down searches, has required a

certain level of suspicion described as “mere suspicion.” (citation

omitted). This is in recognition of the fact that the intrusiveness of

a pat-down search exceeds that of a routine border search. In

Grayson, the Ninth Circuit stated: Although...we said that no

Suspicion was required to examine the contents of pockets we

Stated that “mere suspicion” was necessary for a pat-down at a

border.

Id. at 1218 and n. 10.

Likewise, this court does not find that the pat-down search of Mr.

Bevacqua was a “routine” border search of luggage, vehicle, pockets, or

wallet.

The court finds that Agent Bamhart was taking Mr. Bevacqua to secondary for

only one purpose, to conduct a personal pat-down search. Although Martinez-Fuerte,

is limited to stops for immigration-related searches, that limitation ‘‘does not mandate

an inquiry into the subjective purpose of the agent making referrals to secondary

inspection unless there is some objective evidence supporting the charge of pretext.

United States v. Koshnevis, __F 2d___, Slip Op. No. 91-50050 (9th Cir

Amended November 23, 1992). (In the absence of affirmative evidence that referral

to secondary inspection was for drug-related offenses, agent need not demonstrate

articuable suspicion for an otherwise lawful immigration stop); United States v,

Bamett, 935 F 2d 178 (9th Cir. 1991). Had defendants shown that the agents were

looking only for drug violations, not immigration violations, the result might be

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different. But without some evidence the court refused to infer the agents

had an improper motivation. Id. at 181.

Here the evidence clearly established affirmatively that Inspector

Barnhart’s sole purpose in forcing Mr. Bevacqua to secondary was to

conduct a personal pat-down search. There was not even a pretense that

the purpose of forcing Bevacqua to secondary was to question him, search

his luggage, vehicle, or only to empty his pockets. Under the law of the

Ninth Circuit, and as set forth in the Customs regulations, minimal or mere

suspicion is required for such a personal pat-down search. The court finds

that the customs officers had absolutely no suspicion, not even a hunch,

that Mr. Bevacqua was smuggling illegal goods into the country, or that he

was armed with a dangerous weapon. The court is satisfied that Inspector

Barnhart did not have the authority to insist that Bevacqua proceed to

secondary inspection and force him there for the purpose of conducting a

pat-down search and/or frisk, both under Customs Directives, and the law

of the Supreme Court and Ninth Circuit.

Agent Barnhart would have had the authority to refer

Bevacqua’s vehicle to secondary for inspection, and Bevacqua

himself for limited questioning, as well as a search of his

pockets without any articuable suspicion of wrongdoing, but not

the authority to force him there for the purpose of a personal

pat-down search. Agent Barnhart had no intention of taking

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Bevacqua to secondary for questioning, and there was no vehicle or

luggage at secondary to inspect. Bamhart’s actions were improper.

However, the inquiry does not end here. The next issue is whether Mr.

Bevacqua had a duty to refrain from physically resisting going to

secondary, even though there was no authority to take him there.

Duty Not to Resist Arrest

Assuming that Mr. Bevacqua was unlawfully arrested, under Idaho

law, he still had a duty not to resist the arrest unless Inspector Bamhart

initiated violence or used excessive force in making the arrest. At common

law, a perso unlawfully arrested could resist such an arrest by the use of

reasonable force. John Bad Elk v, United States, 177 U.S. 529 (1900).

However, most jurisdictions, including Idaho, have modified the common

law in this respect. The Idaho Supreme Court held that if a person has

reasonable ground to believe he is being arrested by a peace officer, it is

his duty to refrain from using force or any weapon in resisting the arrest,

regardless of whether or not there is a legal basis for the arrest. State v.

Richardson, 95 Idaho 446, 511 P.2d 263 (1973).

To us the question is whether any amount of force should be

permitted to be used by one unlawfully but peaceably arrested.

We feel that the legality of a peaceful arrest should be

determined by courts of law and not through a trial by battle in

the streets. It is not too much to ask that one believing himself

unlawfully arrested should submit to the officer and thereafter

seek his legal remedies in court...

We hold that an individual may not use force to

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resist an arrest by one he knows or has good reason to believe is

an authorized peace officer in the performance of his duties. In

the event that the arrest in unlawful, the arrested individual may

seek relief under I.C. § 18-703 which provides that any public

officer who arrests any person or detains one against his will

without a regular process or lawful authority is guilty of a

misdemeanor, or he may proceed with a civil action for false

arrest under I.C. § 18-2901.

Id. at 267-68.

However, Idaho courts have also recognized that a person is entitled to

protect himself, if the officers initiate violence or use excessive force

while making an arrest. State v. Wren, 115 Idaho 618, 768 P.2d 1351 (Ct.

App. 1989); State v. Hartwig, 112 Idaho 370, 732 P.2d 339 (Ct. App.

1987).

Plaintiff argues that he had a right to “passively resist” the unlawful

arrest citing State v. Wilkerson, 755 P.2d 471 (Idaho Ct. App. 1988) where

the court stated: -

We are not prepared to accept the proposition that our legislature

intended to criminalize passive disobedience to any act of a

police officer. Many of the reasons to broadly construe the term

‘duty’ that were present in Richardson are not presented here.

Passive resistance does not present the same immediate risk of

violence and physical harm as does forcible resistance.”

Id. at 180.

The court does not find that Mr. Bevacqua’s resistance was

merely passive. Rather, he physically and forcibly resisted

being taken to secondary inspection. The court finds that while

Agent Barnhart did not have any basis, in fact, to require

Bevacqua to go to “secondary”, he did not use excessive

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force in taking Bevacqua to secondary. A customs officer may use all

necessary force to compel compliance when inspecting persons at the

border. 19 U.S.C. § 1581 (a) & (f). Therefore, Bevacqua had no right to

resist the arrest, even though it was unlawful.

The court is concemed that Inspector Bamhart, because he had

authority as a customs agent, utilized it in an authoritarian manner without

proper courtesy and civility. His attitude was “I have this authority and

you will comply with every single directive and word that I utter.” Mr.

Bevacqua may have had a viable action against Inspector Barnhart

pursuant to a civil action for false arrest under I.C. § 18-2901, as stated by

the court in Richardson, supra or an action against Bamhart for claims of

assault, battery or false imprisonment under state law. However, under the

Idaho Tort Claims Act, I.C. § 6-904, a governmental entity can not be held

liable for damages due to assault, battery or false arrest without a finding

of malice or criminal intent. Malice within the definition of the ITCA

means “actual malice” which requires a wrongful act without justification

combined with ill will. Evans v. Twin Falls County, 118 Idaho 210, 796

P.2d 87 (1990). The court finds that the evidence did not establish that

Agent Barnhart acted with malice or criminal intent.

Additionally, in Lively y, City of Blackfoot, 91 Idaho 80,

416 P.2d 27 (1966), Lively contended inter alia that her arrest

36a

was wrongful, without warrant, or judicial order, or other authority of law;

and that the arresting officers beat and assaulted her, though no attempt

was made to resist the arrest; and was otherwise deprived of her civil

liberites. The Court stated:

The cases and authorities make plain however that a

municipality, unless expressly so provided by statute, is not

liable for those wrongs as alleged by appellant in her

complaint...

The Idaho case of Klam v. Boehm, [72 Idaho 259, 240 P.2d

484], is additional authority in support of the conclusion that all

counts listed in appellant’s complaint fall within a governmental

function...The plaintiff in the Klam case brought his action for

damages against the police chief of Boise seeking to hold him

responsible together with the police officers under his

supervision for the alleged misconduct of the officers which

consisted of false arrest, false imprisonment, and assault and

battery said to have been committed while plaintiff was

wrongfully detained in the city jail. This court sustained the

judgement of dismissal as to the police chief for failure to state a

cause of action and specifically-held that a policeman is a public

officer whose duties relate to governmental functions of a

municipality and that the maintenance of a jail additionally is a

governmental function. See also the case of Ci

Kibler, [62 Idaho 511, 113 P.2d 411], wherein this court held that

a municipality is not liable for the assault and battery committed

by its police officers in the discharge of their duties as officers.

Therefore, this court finds that even if Mr. Bevacqua’s claim

of assault, battery, and false arrest against the United States

were not specifically precluded under the Federal Tort Claims

Act, as they are, Mr. Bevacqua would not be able to hold a

governmental entity such as a municipality liable under Idaho

law for claims of assault, battery, false arrest, or false

37a

imprisonment. The Idaho cases relied upon by Plaintiff, Antelope y,

George, 211 F. Supp. 657 (N. D. Id. 1962) and Anderson vy, Foster, 73

Idaho 340, 252 P. 2d 199 (1953) were actions brought against police

officers for their alleged conduct, not against a governmental entity, such

as a municipality for which they worked.

The Actual Pat-Down Search

Although Agent Barnhart had no reason to Suspect that Mr. Bevacqua

was Carrying contraband or that he was armed, and therefore, had no actual

authority to insist that Bevacqua accompany him to “secondary” for a

personal pat-down search, the court finds that the actual pat-down search

that occurred was reasonable due to Mr. Bevacqua’s resistance and failure

to comply with the agent’s directives to go with him to “secondary.”

Bevacqua’s active and forceful resistance to being taken to secondary gave

Inspector Bamhart the minimal or mere suspicion necessary to justify a

pat-down search.

In United States v, Wilmot, 563 F. 2d 1298 (9th Cir. 1977), during

the course of a secondary inspection, a customs inspector attempted to

give Wilmot a pat-down search to determine if he had a weapon.

Wilmot declined to spread his legs, and when the inspector attempted

to spread them, Wilmot closed them. “This appears to be nothing more

than a typical pat-down. If more were necessary to justify this activity,

Wilmot’s suspicious conduct in resisting the mere spreading of

38a

his legs clearly constitutes a reasonable basis for any “‘extensive” pat-down

search.” Id. at 1300 (9th Cir. 1977).

The court finds that, by reason of the prior resistance of Mr. Bevacqua,

Agent Barnhart had a valid basis to perform a pat-down or frisk search of

Mr. Bevacqua, and that Barnhart did not use excessive force in conducting

that search. The court also finds that the negligence of Mr. Bevacqua in

physically resisting Agent Barnhart’s directives was equal to or exceeded

the negligence of Agent Barnhart.

CONCLUSIONS OF LAW

1. The United States has not waived its sovereign immunity for claims

arising out of alleged assault, battery, or false arrest. Therefore, this court

has no jurisdiction under the Federal Tort Claims Act for those claims.

2. Plaintiff has alleged no jurisdictional basis to hold the United States

liable for a constitutional tort under the Fourth Amendment.

3. Agent Bamhart had no authority to force the Plaintiff to secondary

inspection for the purpose of conducting a personal pat-down search

without even mere suspicion of wrongdoing.

4. Plaintiff breached his duty not to resist a peaceful unlawful arrest.

5. Plaintiff has not shown Defendant’s negligence to be greater than

his own.

|

|

39a

6. The resulting pat-down search was reasonable in view of the

Plaintiff’s physical resistance.

Based on the foregoing, IT IS HEREBY ORDERED that the

Defendant United States of America is entitled to a Judgment in its favor.

The Clerk of this court shall enter Judgment in favor of the United

States of America dismissing the Complaint and the claims therein with

prejudice, and forward copies thereof to counsel for the parties.

IT IS SO ORDERED. The Clerk is hereby directed to enter this

Opinion and furnish copies to counsel.

DATED this 2nd day of February 1993.

JUSTIN L. QUACKENBUSH

United States District Judge

40a

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF IDAHO

EUGENE F. BEVACQUA, Civil No. 91-0178-N-HLR

Plaintiff,

VS. JUDGMENT

UNITED STATES OF AMERICA

Defendant.

The Court has examined the entire record in this matter, including the

evidence and testimony taken at the trial held on September 21, 1992. In

accordance with the views expressed in the Memorandum Opionion,

Findings of Fact and Conclusions of Law,

NOW, THEREFORE, IT IS HEREBY ORDERED, ADJUDGED

AND DECREED that judgment be entered in favor of the Defendant,

United States of America, dismissing the Complaint and the claims therein

with prejudice.

Dated this 23rd day of February, 1993.

ee OO ee eee,

RON HABERMAN

Deputy Clerk

4la

Not for Publication

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

EUGENE F. BEVACQUA, No. 93-35236

Plaintiff- Appellant, D. C. No. CR-91-00178-HLR

V.

UNITED STATES OF AMERICA MEMORANDUM®*

Defendant-Appellee.

Appeal from the United States District Court .

for the District of Idaho

Harold L. Ryan, District Judge, Presiding

Argued and Submitted August 2, 1994

Seattle, Washington

Before: WRIGHT, KOZINSKI and FERNANDEZ, Circuit Judges.

Because it is not as intrusive as a strip search or body cavity search, a

pat-down search is considered a routine border search requiring no

justification. See United States v. Ramos-Saenz, No. 93-50759, slip op.

12629, 12633-34 (9th Cir. Oct. 14, 1994). The pat-down search here was

therefore not a “negligent or wrongful act” in itself, nor did Bamhart use

excessive force or deviate from standard customs procedure in performing it.

Mem. op. 7-8. If a government employee has not committed a “negligent

*This disposition is not appropriate for publication and may not

be cited to or by the courts of this circuit €xcept as provided by

9th Cir. R 36-3.

42a

or wrongful act,” there is no liability under the Federal Tort Claims Act. 28

U.S. C. § 1346 (b); Laird v. Nelms, 406 U.S. 797, 799 (1972). That being

said, we note that the conduct alleged here — customs agents making life

unpleasant for railroad personnel in retaliation for failing to repair a noisy

train valve — is abusive. Our ruling that it is not tortious should not be

read as condoning in any way such conduct on the part of government

employees.

AFFIRMED.