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DUPREE v. VILLAGE OF HEMPSTEAD

October 29, 1975

Billy R. DUPREE, JR., Plaintiff,
v.
VILLAGE OF HEMPSTEAD et al., Defendants



The opinion of the court was delivered by: BRUCHHAUSEN

BRUCHHAUSEN, District Judge.

 The defendants move for an order, pursuant to Rule 56 of the Federal Rules of Civil Procedure, for summary judgment.

 The complaint, filed on February 13, 1974, pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1343, alleges violations of the Civil Rights Act.

 The facts are not in dispute. The plaintiff was arrested by the Hempstead Police Department on July 17, 1973 as a suspect, regarding an alleged robbery that occurred within the Village of Hempstead. The plaintiff, after interrogation, was released from custody, and told he was free to leave the police station. He decided to wait, at the precinct, for a friend still in police custody. The police had contacted the military to inquire of the status of the plaintiff. Apparently, he was assigned duty at the Walter Reed Army Medical Center, Washington, D.C. The military's response to the inquiry, mistakenly informed the Hempstead police that he, the plaintiff, was a deserter. He was again detained by the local authorities for the action of the military police. They picked him up on the following day and he was eventually placed in the custody of the military. Thereafter, further investigation proved that he was not a deserter, but in fact had been honorably discharged from the service.

 Thereafter, this instant action was commenced for his alleged false arrest and imprisonment.

 The defendant, United States of America, alleges that it is immune from suit, pursuant to the doctrine of sovereign immunity. Secondly, the individually named defendants acted in good faith, and with a reasonable belief that the arrest of the plaintiff was lawful.

 The United States of America, as a sovereign is immune from suit, except insofar, as Congress in its wisdom has waived such immunity. The Federal Tort Act, 28 U.S.C. § 1346(b), waives immunity of the sovereign, and gives the District Courts original jurisdiction for damages, "caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment."

 Originally, 28 U.S.C. § 2680 provided that:

 
"The provisions of this chapter and section 1346(b) of this title shall not apply to --
 
(h) Any claim arising out of * * * false imprisonment, false arrest * * *."

 Thereafter, on March 16, 1974, 28 U.S.C. § 2680(h) was amended and gave the District Courts original jurisdiction over the United States for claims, arising from false arrest and imprisonment. The amendment reads, in part:

 
"(h) * * * the provisions of this chapter and section 1346(b) of this title shall apply to any claim arising, on or after the date of the enactment of this proviso, out of * * * false imprisonment, false arrest * * *."

 As amended March 16, 1974, Pub.L. 93-253, § 2, 88 Stat. 50. The complaint charges that the alleged wrongdoings occurred on July 17, 1973, which is prior to the amendment of 28 U.S.C. § 2680(h). It follows, therefore, that the United States of America is immune from suit.

 The second question presented is whether the individually unnamed defendants, members of the military police, acted in good faith, and with a reasonable belief ...


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