Appeal from a judgment entered in the United States District Court for the Southern District of New York, after a bench trial before Lee P. Gagliardi, Judge, dismissing complaint under Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) & 2671-2680 (1976), for damages resulting from six-day detention by Immigration and Naturalization Service of plaintiff, a United States citizen seeking to enter the United States.
Friendly, Kearse, and Cardamone, Circuit Judges. Friendly, Circuit Judge, concurring.
This case, before us for a second time, see Caban v. United States, 671 F.2d 1230 (2d Cir. 1982) (" Caban I ") (reversing grant of summary judgment in favor of defendant), comes to us on the appeal of plaintiff Salvador Caban from a judgment entered in the United States District Court for the Southern District of New York after a bench trial before Lee P. Gagliardi, Judge, dismissing his action against defendant United States for damages under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b) & 2671-2680 (1976). Caban, a native of Puerto Rico and an American citizen, sued the government for damages resulting from his six-day detention by Immigration and Naturalization Service ("INS") agents when he attempted to enter the country at John F. Kennedy International Airport ("JFK Airport") from a flight originating in the Dominican Republic. At issue is whether the district court properly looked to federal law to determine the standard of care applicable to the INS agents' detention of Caban, and whether it properly concluded that the duration of the detention was not unreasonable. We affirm the district court's dismissal of Caban's complaint.
The facts, as stipulated by the parties or found by the court after trial, are as follows. On Thursday, January 5, 1978, Caban, a native Puerto Rican and an American citizen, disembarked at JFK Airport from a flight that had originated in the Dominican Republic. An INS agent stopped Caban for routine questioning to determine whether he should be permitted to enter the country. After their conversation, the agent was not convinced that Caban was an American citizen and referred Caban to another INS inspector, Beverly Gordon. Caban is illiterate and speaks only Spanish. Through an interpreter, Gordon asked Caban to produce documents to establish his citizenship. He did not have a passport but presented a recently issued birth certificate showing that he was born in Puerto Rico in 1941. To evaluate the validity of his claim of citizenship, Gordon asked Caban a number of questions about Puerto Rico and the information on the birth certificate. Caban did not know the month or date of his birth, which were stated on the birth certificate, and did not know the name of the hospital that had issued the certificate to him. Nor could he answer basic questions about Puerto Rico, such as the colors in its flag, although he claimed to have lived there until he was eighteen.
Subsequently, Caban was questioned through an interpreter by Angelo Marrone, the Supervisory Immigration Inspector at the airport. Caban's answers failed to satisfy the INS agents that his claim of citizenship was valid. The agents therefore decided to detain Caban at the INS detention center in Brooklyn, New York. A hearing was scheduled for Tuesday, January 10, 1978, to determine his status, but was postponed until January 11 at the request of his attorney. Upon posting a bond on January 11, Caban was released. It was eventually determined that he was a United States citizen.
In May 1979, Caban commenced the present action pursuant to the FTCA seeking damages of $1,000,000 for alleged negligence, invasion of privacy, and false imprisonment by the INS agents who had detained him for six days without recognizing his right to enter the United States.*fn1 The government successfully moved in the district court for summary judgment on the ground that the action was barred by § 2680(a) of the FTCA, which provides that the government may not be sued on account of an employee's exercise of a discretionary function, whether or not the discretion involved be abused. In Caban I, familiarity with which is assumed, we reversed the summary dismissal of the complaint, ruling that the activities of the INS agents who detained Caban were not of the kind that involved the weighing of important policy choices to which discretion is essential within the contemplation of § 2680(a). 671 F.2d at 1232-33. In remanding for further proceedings, the Caban I panel declined to address the issue of what standard governed an INS determination to detain a would-be entrant, but observed that that standard was not the same as the standard for judging the legality of an arrest:
It has long been the law that people have significantly less rights at a border than they have in the interior. . . . It may very well be that because of the broad power given the immigration authorities, on these facts it will be very difficult for appellant to prove that a tort was committed.
C. The Decision after Trial
Following a bench trial after remand, the district court concluded that Caban's complaint should be dismissed. In an opinion dated January 25, 1983 ("Opinion"), the court began by noting that under 28 U.S.C. § 1346(b), the United States is to be held liable for the torts of its employees in accordance with the law of the place where the act occurred. The court noted that the New York Court of Appeals had defined the tort of false imprisonment as the unlawful deprivation of another's freedom to choose his own location if
(1) the defendant intended to confine [the plaintiff], (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement and (4) the confinement was not otherwise privileged.
Opinion at 4 (quoting Broughton v. State, 37 N.Y.2d 451, 456, 373 N.Y.S.2d 87, 93, 335 N.E.2d 310, cert. denied, 423 U.S. 929, 96 S. Ct. 277, 46 L. Ed. 2d 257 (1975)). Observing that there was no dispute that Caban satisfied the first three elements of the New York definition, the court considered the matter of whether the INS agents' actions were privileged. Rejecting Caban's contention that the agents' conduct was privileged only if they had reasonable or probable cause to believe Caban had committed a crime such as false representation of United States citizenship, see 18 U.S.C. § 911 (1976), the court ruled that "the detention of ...