The opinion of the court was delivered by: David G. Trager, United States District Judge
Plaintiffs Luis and Aura Mejia originally brought this §
1983/Bivens action against the City of New York, Airborne Freight
Corporation, U.S. Customs Service Special Agent Brenda Tipton, and
Sergeant Daniel McNicholas and Detective John Skinner of the New York
City Police Department ("NYPD") alleging false arrest, false
imprisonment, use of excessive force, and malicious prosecution, all in
relation to the controlled pickup of a shipment of cocaine. The Mejias
also asserted pendent state law claims for false arrest, false
imprisonment, malicious prosecution, and intentional infliction of
emotional distress against various defendants.
By the Memorandum and Order of October 5, 2000: (1) the City's motion
for summary judgment was granted; (2) Airborne's motion for summary
judgment was granted with respect to the § 1983 excessive force
claims and the intentional infliction of emotional distress claims, but
denied with respect to the § 1983 false arrest and malicious
prosecution claims, and the state law malicious prosecution claims; (3)
Tipton's motion for summary judgment was granted with respect to the
Bivens excessive force claims and the intentional infliction of emotional
distress claims, but denied with respect to the Bivens false arrest and
malicious prosecution claims; (4) McNicholas's motion for summary
judgment was granted with respect to the state law false arrest claims,
but denied with respect to the § 1983 false arrest, malicious
prosecution, and excessive force claims, and the intentional infliction of
emotional distress claims; and (5) Skinner's motion for summary judgment
was granted with respect to the state law false arrest and intentional
infliction of emotional distress claims, but denied with respect to the
§ 1983 false arrest, malicious prosecution, and excessive force
claims. See Mejia v. City of New York, 119 F. Supp.2d 232, 289 (E.D.N.Y.
Familiarity with the facts of this case is assumed, see id. at 243-52,
but in addition to any new relevant facts, the facts relevant to the
current motion are taken from the Memorandum and Order and will be
repeated in some detail.
There is no dispute over the initial events of this case. On November
18, 1993, U.S. Customs Service agents in Miami intercepted a package from
Bogota, Columbia in which more than a pound of cocaine had been hidden in
the covers of three books of textile samples. The package had been
delivered to Miami by a Columbian express courier for transfer to
Airborne, the connecting domestic courier. The airbill identified the
recipient as Complete Diagnostic Best Sports Car Service in Hollis, New
York, but did not list an individual addressee. The airbill also gave the
recipient's phone number.
The Miami Customs officials forwarded the package to Tipton, an agent
in the New York Customs office. Because the package contained less than
one kilogram of cocaine, the matter fell outside federal prosecution
guidelines. Tipton thus contacted Detective McNicholas about the
possibility of the NYPD conducting a controlled delivery of the package.
On November 19, 1993, Tipton contacted John Bezmen, Airborne's regional
security manager, and asked him to arrange to place an entry in
Airborne's computer system to reflect a delay due to misrouting so as not
to arouse the suspicion of the unknown recipient. Bezmen agreed to the
request and offered to cooperate in any subsequent controlled delivery of
That same day, another Customs Service agent visited Complete
Diagnostic, and picked up a business card for the garage which included
the name "Luis" and a telephone number that matched the one on the
airbill. Tipton and McNicholas first considered having Customs sign over
the package to the NYPD for a controlled delivery on the following day,
but abandoned the plan because McNicholas believed there would be no way
of knowing whether the person who happened to sign for the package at the
garage was the intended recipient.
At the time of these events, Bezmen was supervised by Donald McGorty,
the Airborne's Director of Security for Area 1, which covered the
northeast. McGorty Dep. at 12. Bezmen was one of three "investigators"
who reported to McGorty, and was stationed at Kennedy Airport. Id. at
Bezmen stated in a deposition that he had been involved in "a dozen or
so" investigations into shipments of illegal drugs. Bezmen Dep. at 22,
52. The record is not clear, but Bezmen apparently worked for as an
investigator for at least five years before the incidents relevant to
this case occurred, and perhaps longer.*fn2
The investigations into
shipments of illegal drugs would occur when an Airborne employee found
drugs in a package, and asked Bezmen's advice on what to do. Id. at
23-24. "Usually," Bezmen's only role was to call the police or tell the
other Airborne employee to do so. Id. However, in some instances, law
enforcement officials wanted to do a controlled delivery, so Bezmen gave
them uniforms and a van. Id. at 27, 51. Airborne employees did not
participate in controlled deliveries. McGorty Dep. at 34. Bezmen said that
in those situations, he told the other Airborne employee to "just
cooperate with what they needed and assist them in any manner they
could. That is the normal scenario." Bezmen Dep. at 23-24. McGorty
agreed, and added that he wanted Airborne employees to make sure that the
law enforcement officers had a warrant before assisting them with a
controlled delivery because for "the police to go out without a warrant
is fraught with danger." McGorty Dep. at 25-26, 30-32.
Although McGorty was Bezmen's supervisor, he did not actively oversee
Bezmen's involvement in controlled deliveries. Id. at 15-17. Bezmen never
asked McGorty's advice about how to conduct a controlled delivery; nor
did McGorty ever review Bezmen's actions in them. Id. at 16-17.
At this time, Thomas Gennarelli was an Airborne cartage supervisor at
Airborne's Inwood Station who supervised a group of thirty drivers.
Gennarelli Dep. at 7. Gennarelli's direct supervisor was District Manager
Bill Savino. Id. at 13. Gennarelli stated he was involved in
approximately three controlled deliveries in his two years as Inwood
Station's cartage supervisor. Id. at 13-14. In those situations, he
provided a van and/or uniforms to the law enforcement officials, and
"[t]he norm was to cooperate" with them. Id. at 16, 23.
At this point in the story, plaintiffs' and defendants' accounts of the
events diverge widely. According to the defendants, on November 29,
1993, Tipton spoke to Bezmen, who had previously left a message for her.
Bezmen told her that he had noticed an entry on Airborne's computer that
indicated someone named "Luis" had called on November 22, 1993, asked
about the package, and left the phone number for Complete Diagnostic.*fn3
Tipton and McNicholas then conferred to make arrangements for a
controlled pickup at Airborne's facility the next day, November 30,
At Tipton's request, Gennarelli called the contact number and asked for
"Luis Mejia."*fn4 A person answered and said: "This is Luis." Gennarelli
told "Luis" that his package was available for pickup at Airborne's
Inwood station, which is located near JFK. Gennarelli further advised
"Luis" that he should come to pick up the package after noon the next
day, November 30, 1993. Gennarelli does not recount having to give "Luis"
any reasons as to why he was required to pick up the package at the
Airborne office as opposed to it being delivered to Complete Diagnostic;
Gennarelli stated that "Luis" simply agreed without asking any
questions. According to Gennarelli, the call lasted approximately two
minutes. After the call, Gennarelli advised Tipton that "Luis" said
he would come to Airborne's facility the next day to pick up the package.
On November 30, 1993, Tipton brought the package to Airborne's Inwood
station and signed it over to Detective Skinner. According to Tipton, she
had no further role in the controlled pickup, though she remained at the
facility until Mr. Mejia arrived.
Skinner placed the intercepted package in an Airborne box, sealed it,
and gave it to Gennarelli. The police then waited for Mr. Mejia's arrival
out of sight in prearranged positions.
Later that day, Mr. Mejia set off for the Airborne office along with
his wife. Along the way, he got lost and had to call for directions.
Gennarelli answered, or was given, the call and provided Mr. Mejia with
additional directions. Shortly thereafter, Luis Mejia entered Airborne's
facility and walked up to Gennarelli, who was wearing an Airborne
uniform. Mr. Mejia signed for the package, accepted delivery, and walked
out. According to Gennarelli, Mr. Mejia did not inspect the package while
he was in the office or indicate in any way that the package was
unexpected. According to Skinner, who was watching from the reception
area of the Airborne office, once back in the car, Mr. Mejia handed the
package to his wife, who immediately opened it.
About ten minutes later, McNicholas, Skinner, and several other NYPD
officers pulled the car over to the side of the road and arrested the
The Mejias tell a very different story about the events leading up to
their arrest and prosecution. In essence, the Mejias allege that they
knew nothing about the package from Colombia and that Airborne
representatives (or government agents masquerading as Airborne
representatives) coaxed and cajoled them into claiming the package under
the pretense that the package was a Christmas gift from Venezuela.
Specifically, Mr. Mejia denies that he placed a call to Airborne
inquiring about the package. Mr. Mejia testified in deposition that one
of his employees, Charlie Diego, received a telephone call on November
22, 1993, from an unidentified individual who asked who owned the
business. Diego told the caller the owner was named Luis. The caller also
allegedly asked whether the owner was Colombian and whether everyone who
worked at the garage was Spanish.
Thereafter, Mr. Mejia states that he received four unsolicited phone
calls from Airborne in which one or possibly two purported Airborne
agents beseeched him to come to the Airborne facility and pick up the
package. The first alleged call took place early on the morning of
November 29, 1993. The first caller asked him if he was "Luis" and told
him that Airborne had a package for him. Mr. Mejia then stated: "Okay,
why don't you deliver it." The caller responded that Airborne could not
deliver the package because it was a personal package and that he would
have to come and sign for it: "You have to come personally to pick up the
package because it is addressed to you." Mr. Mejia then stated that he
could not pick up the package that day because he was too busy. Mr. Mejia
asked whether Airborne could just deliver the package for an extra
charge, which he would pay. The caller answered that he could not do so,
again, because the package was personal.
Look, this package, it was supposed — this
package is supposed to be picked up few days going
on, if you're not picking up the package, we are going
to send it back and I'm going to get into trouble,
because this package, I suppose [sic] to send it out
and I forgot to send it out. . . . So please come and
pick it up. . . . [sic] Put it away for you and you
just come and take out this package.
Mr. Mejia then asked: "But where [sic] is the package?" The caller
replied: "Looks like a Christmas present." Mr. Mejia again advised the
caller: "Bring it to me and I will pay." The caller again stated that he
could not do so because the package was already two days late and gave
Mr. Mejia "a whole story about the package. Came through Miami also, the
whole story." The caller added that the package would be sent back to
Venezuela if he did not pick it up and again emphasized that it was a
Finally, Mr. Mejia stated that he "might pick it up later on," and
asked for directions. At that point, Mr. Mejia and the caller had a
conversation about the best route to take. The conversation ended with
Mr. Mejia telling the caller that he would pick up the package,
"[p]erhaps . . . today, I don't guarantee that."
Mr. Mejia testified that the call lasted over twenty to twenty-five
minutes; later, he stated that it was probably even longer, between
thirty and forty-five minutes. At no time during the call, however, did
the caller use his last name.
The second alleged conversation occurred later on the afternoon of the
29th, around 2:30 p.m. or 3:00 p.m., when an unidentified, purported
Airborne representative told Mr. Mejia: "We're waiting." Mr. Mejia
replied: "I'm sorry, I forgot about it but I definitely [sic] pick it up
tomorrow." Mr. Mejia then hung up. Mr. ...