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April 18, 1997

RHONDA KANE, Plaintiff, against UNITED STATES OF AMERICA, Defendant.

The opinion of the court was delivered by: NICKERSON

 NICKERSON, District Judge:

 Plaintiff Rhonda Kane brought this action against the United States under the Federal Tort Claims Act, 28 U.S.C. ┬ž 1346(b) (the Act), to recover damages for injuries sustained at the hands of United States Customs Service inspectors, who stopped her at John F. Kennedy Airport. Plaintiff claims that the inspectors not only searched her baggage and held her for a monitored bowel movement, but also strip searched her and coerced her into consenting to an x-ray, all "with no basis whatsoever" to believe she had drugs. Plaintiff seeks damages of more than $ 2,000,000.

 Section 1346(b) of the Act gives jurisdiction to this court over actions asserting claims against the United States for damages caused by the "negligent or wrongful act" of a government employee acting within the scope of his or her employment where the United States, if a private person, would be liable under the law of the place where the act occurred. New York law applies federal law to determine the legality of the inspectors' acts. Caban v. United States, 728 F.2d 68, 72 (2d Cir. 1984). The question is whether or not they acted unlawfully.


 In mid-March 1992 plaintiff traveled to Mali in Africa to meet her husband and his family. Her husband had gone there in January 1992 to develop a business selling computer equipment and services. Plaintiff, living in Maryland, bought a ticket from an upstate New York travel agency.

 A friend drove her from Maryland to John F. Kennedy Airport, and she arranged to have him meet her upon her return. She left Mali on March 31, 1992 on Sabena Airlines, stopped over for ten hours in Brussels, and arrived at John F. Kennedy Airport about 1:40 P.M. on Sabena flight 541. She wore traditional African clothes made for her by her mother-in-law. Of the passengers on the flight some 20 to 25 were African-American, and, as plaintiff testified, some wore African garb.

 After plaintiff retrieved her baggage, Customs Inspector Sandra Katigbak randomly stopped her and asked her whether she spoke English. She said yes, she was an American citizen and produced her passport. Plaintiff resented the manner in which Katigbak motioned her over and began to question her about the purpose of her trip, her husband's business, and her own occupation. Katigbak began to search plaintiff's baggage, and noticed that plaintiff's clothes were bulky and that her ticket was bought a few days before leaving New York from a New York State agent although she lived in Maryland. Katigbak found vaseline in one of the bags and observed that plaintiff was sweating and fidgeting, her hands shaking.

 While Katigbak was looking through the baggage Supervisory Customs Inspector Sam Stabile noticed plaintiff giving "a hard time" to Katigbak, yelling at and abusing her. He therefore joined them at the inspection table. Plaintiff complained to Stabile that she was being singled out because she was Black and the inspectors were racists, and voiced her impatience with the time taken to inspect her bags. Stabile tried to explain to her, with little success, that she was subject to a Customs examination because she had arrived on an international flight.

 After the inspector had completed inspection of the baggage and found no drugs, Katigbak asked Stabile for permission to make a pat-down search. Stabile agreed. Inspector Loretta Dowd joined Katigbak and plaintiff in another room and started to pat-down plaintiff. Plaintiff objected, told Dowd to take her hands off, and said she did not have drugs. Raising her voice, plaintiff said that what was going on was totally wrong and that she was being picked out because she was a Black woman.

 In a few minutes Katigbak came out of the room and reported to Stabile that plaintiff would not continue to cooperate with the pat-down. Stabile then entered the room and asked plaintiff to cooperate with the search, and sent Inspector Sandra Palmer, who is a Black, into the room. After a few moments Palmer reported that plaintiff was still refusing to be searched.

 Since the pat-down had not been completed Stabile decided that it was appropriate to do a strip search. He went into the room and so advised plaintiff, explaining to her what a strip search was and why there was a need to do it. He said that if nothing was seen from the search she would be free to leave.

 Plaintiff, Katigbak, and Dowd went back into the room. Katigbak soon opened the door and told Stabile that plaintiff would not cooperate with a strip search and wished to be x-rayed instead. Stabile agreed and presented an x-ray consent form to plaintiff. Plaintiff then said she did not know how to read or write in English. Stabile showed her the Customs declaration filled out and signed by her. Plaintiff said that nevertheless she would not consent to an x-ray.

 Stabile then told Katigbak to read to plaintiff her Miranda rights and inform her that she would be detained for a monitored bowel movement. He directed Katigbak to take plaintiff to the medical ...

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