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April 29, 1980


The opinion of the court was delivered by: NEAHER


This action for damages against the United States and its agents arises out of an incident that occurred on February 28, 1974, when federal agents and State police members of a Federal Narcotics Task Force stopped Carmine Ricca in his automobile on a public street in Kearny, New Jersey. Plaintiffs allege that for some time prior to stopping him, the defendants had maintained surveillance on Ricca and had followed him in the mistaken belief he was a known fugitive, one John Tully. Plaintiffs claim that, after Ricca's car was stopped, defendants surrounded the car and ordered him out of it. Finally, it is contended that the defendants failed to identify themselves as law enforcement officers and that one or more of the defendants, after pointing firearms at Ricca, shot him.

 Initially, the federal defendants, jointly represented by the United States Attorney moved to dismiss the complaint pursuant to Rules 12 and 56, F.R.Civ.P., on a variety of grounds. As to the claims against the United States (or "government") and the Drug Enforcement Administration ("DEA"), the government claimed the complaint was entirely deficient and thus should be dismissed outright. As to the individual DEA agents, James Bradley and Carlo Boccia ("federal agents"), the government contended dismissal was appropriate as to each cause of action except the sixth cause which alleges what has come to be known as a "Bivens" action for violation of Fourth Amendment rights. See Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971). With respect to that cause of action, the government recognized that the agents must rely at trial on the "good faith" immunity defense set out in Bivens v. Six Unknown Named Agents, 456 F.2d 1339 (2d Cir. 1972).

 The government's theory of the case, of course, had the effect of casting the individual federal defendants into potential liability while absolving the United States of any responsibility for their actions. Finding themselves in an antagonistic position vis-a-vis the United States, the federal defendants have obtained separate representation and oppose that portion of the United States' motion seeking dismissal of plaintiffs' second cause of action which claims negligence. Because of facts peculiar to this case, resolution of the government's motion for summary judgment on the second cause of action is critical and thus we turn to it at the outset.

 The United States moves against the "negligence" claim on the ground that it has not consented to a suit which in reality seeks recovery for injuries arising from an assault and battery. Its argument is based on the express limitation to the waiver of immunity in the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq., contained in § 2680(h), which at the time this action arose excluded from any waiver of immunity

"claims arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights."

 Although the section was amended on March 16, 1974, it provided a waiver of immunity only for claims "arising, on or after (that) date . . . out of assault, battery, false imprisonment, false arrest . . . " allegedly committed by law enforcement officers of the United States. Thus, the government contends, the amendment to the Tort Claims Act does not apply to actions such as this arising out of incidents that occurred prior to the amendment. See Gaudet v. United States, 517 F.2d 1034 (5th Cir. 1975); Pennington v. United States, 406 F. Supp. 850 (E.D.N.Y.1976); Dupree v. Village of Hempstead, 401 F. Supp. 1398 (E.D.N.Y.1975). The success of the United States' motion manifestly depends on the validity of its argument that on the facts and law plaintiffs' claim of negligence is but artful pleading designed to circumvent the Act's bar to suits such as this. After careful review of the extensive material disclosed by discovery in this case and consideration of applicable law, the court concludes for the following reasons that summary judgment dismissing the second cause of action is inappropriate at this time and the government's motion must be denied.

 The United States argues and the federal agents agree that in determining the applicability of the § 2680(h) exception,

"a court must look, not to the theory upon which the plaintiff elects to proceed, but rather to the substance of the claim which he asserts."

 Lambertson v. United States, 528 F.2d 441, 443 (2d Cir. 1976). See Blitz v. Boog, 328 F.2d 596, 599 (2d Cir.), cert. denied, 379 U.S. 855, 85 S. Ct. 106, 13 L. Ed. 2d 58 (1964). Accordingly, we have scrutinized the record and accept for purposes of this motion what the United States urges as "plaintiffs description" of the action, viz.:

"This is an action for personal injuries sustained by the plaintiff CARMINE P. RICCA and for loss of consortium sustained by his wife, CHRISTINE M. RICCA. These damage claims arise out of a shocking set of events whereby the plaintiff, a 25 year old school teacher in New Jersey became the unfortunate target of a joint federal, state and local police investigation on the mistaken belief that he was John Patrick Tully, a notorious criminal indicted by the New Jersey State Grand Jury for four murders. Tully was known to have been deeply involved with organized crime activities in the State of New Jersey and was also under federal indictment for illicit drug trafficing (sic)." Wasserman Aff., P 2.

 Or, as put by defendants Bradley and Boccia:

"Plaintiff was injured by a bullet during an incident in Kearney, New Jersey, which occurred when defendants Boccia and Bradley and other members of a Federal Narcotics Task Force attempted to stop plaintiff Carmine Ricca ("Ricca').
"Prior to the incident in question, agents Boccia and Bradley had received information identifying Ricca as a known and dangerous fugitive, sought by state and federal authorities for various murder, narcotics and other charges related to organized crime. Acting on this information, the individual defendants placed Ricca under surveillance as he drove away from what was believed to be his residence. When it appeared that Ricca was attempting to avoid apprehension by driving at high speed and through red lights, the task force approached and attempted to stop his vehicle. After Ricca's car had been stopped, Agent Bradley stood in front of the car pointing his gun at Ricca. Suddenly, the car accelerated toward Agent Bradley and as he sought to avoid being hit by the car, his gun discharged and the bullet struck plaintiff."

 Memorandum of defendants Bradley and Boccia in Opposition to the Government's Motion to Dismiss Claims as against the United States ("Bradley/Boccia Memorandum"), p. 3.

 As described by defendants O'Brien and Andalaro:

"This action arises out of the shooting of plaintiff on February 28, 1974 in the town of Kearny, New Jersey.
"Prior to the shooting incident in question, a tentative identification had been made that plaintiff was John Tully, a fugitive. Individual defendants and others made an attempt to further determine if plaintiff and Tully were, in fact, one and the same. The climax of this attempt was a confrontation between plaintiff and the individual defendants at the intersection of Boyd and Chestnut Streets in Kearny. At that place, one government vehicle was placed in front of plaintiff's stopped vehicle and another pulled up to the rear. The individual defendants then got out and took up positions around plaintiff's car and demanded that he get out. . . ."

 Memorandum on Behalf of Defendants O'Brien and Andalaro in Response to Motions Brought by the United States Attorney ("O'Brien/Andalaro Memorandum"), p. 2.

 In a tape-recorded statement given to Detective John Mooney of the Kearny Police Department, plaintiff Ricca described the circumstances surrounding the shooting in part as follows:

"I drove on Devon St. to Boyd and I made a left and I stopped at the stop sign. While I was stopped there I put my car in first gear, I noticed a car, a blue Chevelle pulled up next to me and a guy jumped out of the passenger side and he started to bang on the driver side window. He told me to get out of the car and another man came around the front of the car and he started to point a gun at me, so I didn't know, I told them who I was, I told them what did I do and they just keep swearing and they told me to get out of the car, we are going to fuck you up.
"I had three hundred dollars in my pocket and I didn't know what they wanted me for. I turned my steering wheel to the right and tried to slide ...

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