inches tall, and of medium complexion. Tr. at 139-41. offensive
Anderson also testified that when he met with Erroll Hyatt again in 1983, the suspect's appearance had changed significantly. Specifically, Anderson testified that as a result of an accident, Suspect Hyatt had deep scars on his face, and had lost his left eye. Tr. at 141. Although Erroll Hyatt had been wearing an eye patch at this meeting, Anderson testified that he removed the eye patch and Anderson could see that Suspect Hyatt's left eye socket was caved in because of the missing eyeball. Tr. at 141-42.
Anderson also testified credibly that he had informed Agent Kowalski of the drastic change in Suspect Hyatt's appearance. Anderson specifically recalled telling Agent Kowalski in the Chicago federal courthouse, after he had pled guilty, that Suspect Hyatt had been in an accident and had lost his left eye. Tr. at 154. The record unequivocally indicates that Anderson testified at Everett Tracy's criminal trial on February 14, 1984, that Suspect Hyatt had been in an auto accident and had suffered the loss of his eye and had "big scars" on his face. Tr. at 182-83. Although Agents Kowalski and Fanter attended at least parts of the Everett Tracy trial, Tr. at 42, 4, 12, it is not clear whether the agents heard Anderson's specific testimony regarding Suspect Hyatt's auto accident. Tr. at 183. It is evident, however, that the Assistant United States Attorney ("AUSA") prosecuting the Everett Tracy case, Daniel Murray ("Murray" or "AUSA Murray"), would certainly have heard Anderson's testimony. See Tr. at 50. Finally, Anderson testified credibly at the trial of this case that he also specifically remembers talking to Agent Kowalski about Erroll Hyatt's car accident and lost eye immediately after he had testified at the Tracy trial, and on other occasions as well. Tr. at 155-57.
The Court found Anderson's testimony that he had informed Agent Kowalski several times in 1984 that Suspect Hyatt had lost his eye to be extremely credible. In addition to having observed Anderson give his testimony in what appeared to be an honest manner, the Court notes that his overall story was consistent with having informed the agent of Suspect Hyatt's changed appearance. Specifically, Anderson had been cooperating with the DEA since 1981, and by 1984, he observed that while he had pled guilty to a drug offense, the main operator behind the smuggling ring, Erroll Hyatt, remained free. Further, as the government itself brought out at trial, Anderson had apparently been kidnapped at one point by Suspect Hyatt. For those reasons as well, the Court finds that Anderson had a strong motive to ensure that the DEA capture Suspect Hyatt, and that in accordance with that motive, he did, in fact, make an affirmative effort to inform Agent Kowalski in 1984 and again in later years that Suspect Hyatt had lost an eye. See, e.g., Tr. at 156-57. While Agent Kowalski testified that he had no recollection of being given that information, and that he learned about Suspect Hyatt's missing eye for the first time in September 1990, Tr. at 181, the Court found Kowalski's testimony inconsistent, and credits Anderson's testimony on this point.
Despite the new, clearly useful information for identifying Suspect Hyatt, which this Court finds Agent Kowalski had in 1984 from conversations with Anderson, and which AUSA Murray had from observing Anderson's 1984 courtroom testimony, nothing regarding the warrant for Earl Hyatt was amended, and no mention of the suspect's unique physical attribute was made in the DEA file. Indeed, the warrant continued to indicate that the wanted man resided in "Belize City, Jamaica." The DEA file reports, on the other hand, consistently indicate that the suspect resided in Kingston, Jamaica, even as the suspect's continued activity was being recorded.
Meanwhile, Plaintiff Hyatt had eventually entered the United States in 1982, and subsequently settled in New York. Tr. at 108, 125. In 1988, Plaintiff Hyatt had gone to the INS offices at Federal Plaza in New York City to obtain a work permit, and at that time the INS had required him to submit his Jamaican passport. Tr. at 109. Two years later, after receiving a letter from the Jamaican consulate directing him to get a medical examination in Jamaica so that his green card could be updated, Plaintiff Hyatt returned to the INS at Federal Plaza to reacquire his passport. Tr. at 109. On May 25, 1990, Plaintiff Hyatt waited in the INS offices for his passport when he was suddenly placed under arrest pursuant to the 1983, long inaccurate arrest warrant. Tr. at 110. Plaintiff was then placed in the custody of the New York Metropolitan Correction Center ("MCC"). Tr. at 111.
AUSA Murray -- the same AUSA who had prosecuted Everett Tracy and had heard Anderson's testimony in that case -- called Agent Kowalski to inform him that Earl Hyatt had been arrested in New York. Tr. at 66. Agent Kowalski suggested that Agent Fanter be the one to go to New York to identify Hyatt, because Fanter had been the only agent to personally meet the suspect back in 1981. Tr. at 48, 67. Following Kowalski's suggestion, Murray called Fanter, and Fanter went to the June 1, 1990 commitment hearing, which was conducted before the Honorable Naomi Reice Buchwald, United States Magistrate Judge, in the Southern District of New York. Tr. at 22. Because Plaintiff Hyatt's lawyer at the time had objected at the hearing, Agent Fanter was not able to personally see Plaintiff Hyatt to make the identification, and instead made the identification from a photograph, apparently taken from plaintiff's Belize identification card. Tr. at 12-13.
Agent Fanter stated that the person in the photograph, presented to him at the New York hearing, "looked almost identical" to the suspect. Tr. at 13. Agent Fanter made this identification based on a single, one-hour long meeting with Suspect Hyatt that had occurred almost nine years before. Tr. at 13-14. Agent Fanter did not inform Magistrate Judge Buchwald that a reliable informant who personally knew the suspect had testified in 1984, under oath, that the wanted man had lost his left eye in an accident, because neither Agent Kowalski nor AUSA Murray, who had such information, had noted it in the DEA file or in the information on the 1983 arrest warrant. Based on the record of this case, Agent Fanter also failed to inform Magistrate Judge Buchwald that there were discrepancies between the information the DEA had amassed about the suspect and the information regarding plaintiff, including the fact that: (1) Suspect Hyatt was medium complected, Tr. at 6-7, while plaintiff has very dark skin, Tr. at 105; and (2) Suspect Hyatt was reported, consistently over several years, to have been living in Kingston, Jamaica, Tr. at 40, while plaintiff had lived in Belize City, Belize from 1980 to 1982, and in New York from 1982 until 1990. Instead, Agent Fanter simply looked at a photograph of plaintiff and stated with alleged certainty that it was the man he had met in 1981.
Based on this ostensibly positive identification, which omitted available, contrary information, Magistrate Judge Buchwald agreed with the government to have plaintiff remain in custody in New York. Plaintiff was eventually moved to Chicago in mid-June after delays and detours took him to upstate New York, Oklahama, Detroit, and Indiana. Tr. at 111-13.
Upon plaintiff's arrival in Chicago, neither AUSA Murray nor the DEA agents ever made further efforts to more positively identify plaintiff, despite the fact that all three were aware that Agent Fanter had made an identification based on a nine-year old, single, one-hour encounter with Suspect Hyatt, and despite the fact that AUSA Murray and Agent Kowalski had been informed by Anderson's statements in 1984 that Suspect Hyatt had the distinct physical trait of having only one eye.
In addition, the Court notes that after speaking to AUSA Murray and being informed of Hyatt's arrest, Agent Kowalski got in touch with James Anderson, to see whether Anderson was still willing to testify against Hyatt. Tr. at 67. It would have been evident to anyone familiar with the indictment, as AUSA Murray and Agent Kowalski were, that the coconspirators involved in the drug smuggling ring, all indicted together, had the best personal knowledge and memory of Suspect Hyatt's appearance. Thus, although Murray and Kowalski had knowledge that the basis for Agent Fanter's identification of the suspect was relatively weak, and although they were in contact with James Anderson and another informant, Frank Grover, both of whom clearly had substantially more contact with Suspect Hyatt and therefore had more of a basis to identify him, the government made no effort to have Anderson or Grover identify the person in custody, even through photographs. Instead, the government continued to rely on a file which had mistakes already incorporated into it, and chose to rely on the single, inherently questionable identification made by Agent Fanter at the New York hearing.
Plaintiff ultimately remained incarcerated from May 25 to September 7, 1990, when District Court Judge Duff granted plaintiff's application to be released. Tr. at 94, 134. Plaintiff's court-appointed lawyer, Frank Wesolowski ("Wesolowski"), obtained documents from Belize, including voting and employment records, which clearly evidenced Plaintiff Hyatt's presence in Belize from 1981-82. Tr. at 92. In addition, Wesolowski read the 1984 Everett Tracy trial transcript, and learned that James Anderson had testified that Suspect Hyatt had only one eye. Tr. at 93. From that information, Wesolowski eventually requested that AUSA Murray arrange a photograph line-up with an informant who would be more knowledgeable of Suspect Hyatt's appearance than Agent Fanter. Tr. at 93, 81-84. The informant, Frank Grover, did not recognize plaintiff in the line-up, nor when his photograph was singled out for identification. Tr. at 83-85. Finally, in October 1990, after plaintiff had been released and had returned to New York, AUSA Murray arranged for plaintiff's eyes to be examined, at which point it was confirmed that he had two functioning eyes. Tr. at 89, 114. Based on these efforts, the charges against plaintiff were finally dismissed with prejudice on October 22, 1990. Tr. at 95; Ex. 24.
B. Conclusions of Law.
1. Choice of Law.
The liability of the federal government under the FTCA is generally determined by state law. The FTCA provides, in part, that:
The district courts . . . shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages . . . for injury or loss of property, or personal injury or death 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, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.
28 U.S.C. § 1346(b)(1) (emphasis added). Plaintiff makes no arguments regarding the choice of law to be applied to this case and assumes instead that New York law applies. The government, on the other hand, argues that Illinois law applies to this case.
Under the FTCA, this Court must apply the whole law of the state in which the acts of negligence occurred, including the choice-of-law rules of that state. Richards v. United States, 369 U.S. 1, 11-13, 7 L. Ed. 2d 492, 82 S. Ct. 585 (1962). In this case, the acts or omissions causing plaintiff's arrest and incarceration clearly occurred in Illinois. The DEA investigation of the narcotics conspiracy, of which plaintiff was mistakenly identified as being a part, took place in Illinois. The initial, mistaken incorporation of INS information regarding plaintiff into the DEA's investigation report occurred in Chicago. Plaintiff was taken into custody in New York, but was detained and ultimately imprisoned based largely on the mistaken information that was contained in the Chicago DEA's investigative reports. And, while DEA Agent Fanter misidentified plaintiff at the magistrate's hearing in New York, that was simply one New York act among several more significant Illinois acts. Finally, most of plaintiff's incarceration took place in Illinois, and any negligence on the part of the government in not confirming plaintiff's identification upon his arrival in Chicago and upon the government's contact with Suspect Hyatt's coconspirators, also took place in Illinois. Because the acts or omissions causing plaintiff's lengthy incarceration occurred in Illinois, this Court must apply Illinois' choice-of-law rules. See id.
Illinois has adopted the "most significant relationship" test to determine the applicable law in a tort case. See Miller v. Long-Airdox Company, 914 F.2d 976, 978 (7th Cir. 1990) (citing, among others, Ingersoll v. Klein, 46 Ill. 2d 42, 262 N.E.2d 593 (1970)). This test requires the Court to examine the following four factors as they relate to this case: (1) the place where the injury occurred; (2) the place where the conduct causing the injury occurred; (3) the parties' domiciles, residences, places of incorporation, and places of business; and (4) the place where the parties' relationship, if any, is centered. Id. The first two factors of the above list are generally considered the most important, and the presumption that the law of the state where the injury occurred will govern is difficult to overcome, where the conduct causing the injury occurred in the same state where the injury occurred. Id.
Examining these factors in the instant case leads the Court to conclude that Illinois law is applicable to plaintiff's claims. As discussed above, the acts or omissions causing plaintiff's injury occurred almost entirely in Illinois. In addition to the Chicago DEA investigation led by Agents Fanter and Kowalski, the grand jury which indicted plaintiff was convened in Chicago, the indictment was handed down in Chicago, and the arrest warrant for plaintiff was signed by a Chicago federal judge. Although plaintiff was initially arrested in New York, most of his injury took place in Illinois, because most of his incarceration took place there. In short, the only factor weighing against the application of Illinois law is that plaintiff's domicile is New York. Considering all of these factors, the Court finds that Illinois has the "most significant relationship" with plaintiff's tort claims, and that Illinois law therefore applies to those claims.
2. The Illinois Tort Immunity Act.
Defendant argues first that this Court should apply the Illinois Local Governmental and Governmental Employees Tort Immunity Act ("Illinois Tort Immunity Act") to plaintiff's claims, and that in accordance with that Act, the Court should require a showing of "willful and wanton" conduct on the part of government officials before the United States is held liable. 745 Ill. Comp. Stat, 10/202 (West 1997) ("A public employee is not liable for his act or omission in the execution or enforcement of any law unless such act or omission constitutes willful and wanton conduct").
The FTCA provides 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. . . ." 28 U.S.C. § 2674 (emphasis added). The government argues that this Court should follow the Fifth and Ninth Circuit Courts of Appeals, which have determined that because there is no private individual whose role is analogous to that of the federal sovereign in enforcing laws, a court should look to the liability of state and municipal entities to assess the liability of the federal government. The Ninth Circuit has stated:
The circumstances here involve government employees in a law enforcement function. Questions as to the power and authority to arrest, to maintain custody, and to lawfully restrict a person's liberty, are unique to the law enforcement function. Because private persons do not wield such police powers, the inquiry into the government's liability in this situation must include an examination of the liability of state and municipal entities "under like circumstances."