UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Lilian Alonzo
v. Civil No. 16-cv-337-JD Opinion No. 2017 DNH 081 United States of America
O R D E R
Lilian Alonzo brought suit against the United States under
the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq.,
(“FTCA”), alleging that an agent of the United States Drug
Enforcement Agency (“DEA”), Michael Connolly, negligently shot
Alonzo while he was searching her home pursuant to a warrant.1
The government moves to dismiss the suit for lack of subject
matter jurisdiction. Alonzo objects.
Standard of Review
In considering a motion to dismiss pursuant to Federal Rule
of Civil Procedure 12(b)(1), the court takes as true the
properly pleaded facts in the complaint and draws reasonable
inferences in the plaintiff’s favor. Reddy v. Foster, --- F.3d
---, 2017 WL 104825, at *2 (1st Cir. Jan. 11, 2017). The court
also considers the evidence submitted by the parties. Carroll
1 The government represents that Connolly is now retired. v. United States, 661 F.3d 87, 94 (1st Cir. 2011). The party
asserting federal subject matter jurisdiction, the plaintiff in
this case, bears the burden of showing that it exists.2
Johansen v. United States, 506 F.3d 65, 68 (1st Cir. 2007).
Background
Beginning in October of 2013, the DEA and the Manchester
Police Department were investigating suspected drug trafficking
in Manchester, New Hampshire. The investigation focused on
Sammy Garcia. Garcia was suspected of working with Jose,
Jennifer, and Johanna Nunez.
At that time, Lilian Alonzo lived at 110 Beech Street in
Manchester, New Hampshire, and cared for her children and
grandchildren there. Jose Nunez is Alonzo’s ex-husband, and
Jennifer and Johanna Nunez are her daughters. Based on
intercepted communications, the DEA suspected that proceeds from
drug sales were being stored in Alonzo’s apartment.
The court issued a warrant on August 21, 2014, to conduct a
search of Alonzo’s home, and two other locations, to look for
money from Garcia’s drug operations. DEA special agents,
including Connolly, and Manchester police SWAT team members met
at 6:00 a.m. on August 27, 2014, to make a plan for the search.
2 An action brought under the FTCA is tried to the court without a jury. 28 U.S.C. § 2402.
2 The team knew that on that day Alonzo had at least two
grandchildren in the apartment with her. Alonzo had no criminal
record and was not charged with a crime.
DEA agents, other than Connolly, were to remain on the
perimeter of the building while six team members went to
Alonzo’s apartment on the third floor. Connolly was assigned
the job of “breacher” for the group going into the apartment,
meaning that Connolly would use a battering ram to get through
the front door. When the group arrived, however, Connolly heard
children’s voices in the apartment, so he decided not to use the
battering ram.
Instead, the officers announced their presence, and someone
inside the apartment opened the door. The team members went by
Connolly to “clear” the apartment before the search began. When
a team member was unable to kick in a locked door, Connolly took
over. Connolly held his gun in his left hand while he kicked at
the door. When his foot got stuck in the door and then came
loose, Connolly lost his balance and fell backwards. As he
fell, he accidentally shot his gun.
The bullet struck Alonzo, who was standing in the hall with
her young grandchild. The bullet went through Alonzo’s left
elbow and into her abdomen, which caused blood and tissue to
fall onto the child. Alonzo’s injuries have required multiple
surgeries and rehabilitation.
3 The court held a hearing on the motion on April 12, 2017.
During the hearing, the court heard argument from counsel who
reiterated the positions taken in their papers.
Discussion
Alonzo brings a claim of negligence against the government
under the FTCA, arising from the circumstances in which Connelly
shot her. The government moves to dismiss for lack of subject
matter jurisdiction, on the grounds that Alonzo has not stated a
claim under the FTCA. Alonzo objects to the motion to dismiss.3
A. The FTCA
The FTCA waives the sovereign immunity of the United States
for certain tort claims and grants jurisdiction in the district
courts for those claims. Millbrook v. United States, 133 S. Ct.
1441, 1443 (2013). Subject matter jurisdiction to consider
claims under the FTCA exists if a government employee, acting
within the scope of his employment duties, causes injury or loss
“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.
Alonzo noted in her objection that the government appeared 3
to raise official immunity under New Hampshire law without specifically identifying that defense. In its reply, the government explained that it was not raising official immunity for purposes of the motion to dismiss.
4 § 1346(b)(1). To determine whether a private person would be
liable under the circumstances, the court looks for analogous
conduct that would impose liability on a private person. United
States v. Olson, 546 U.S. 43, 47 (2005).
In Olson, 546 U.S. at 45-47, the Supreme Court reiterated
that “private person,” for purposes of the FTCA, does not mean a
public or governmental entity and that “under like circum-
stances” does not mean the same circumstances. The Court
reviewed its prior decision in Indian Towing Co. v. United
States, 350 U.S. 61 (1955), in which it held that liability
under the FTCA requires “a court to look to the state-law
liability of private entities, not to that of public entities,”
when considering “‘activities which private persons do not
perform.’” Olson, 546 U.S. at 46 (quoting Indian Wells, 350
U.S. at 64). The “like circumstances” standard includes
consideration of circumstances that are different from the
actual governmental activity that is questioned. Olson, 546
U.S. at 47.
The circumstances in Indian Towing are instructive. There,
the plaintiff brought suit after its tugboat, pulling a barge,
went aground because a lighthouse, operated by the United States
Coast Guard, was not working. 350 U.S. at 61. The plaintiff
asserted that the Coast Guard’s negligence in maintaining the
lighthouse caused the light to fail and brought suit under the
5 FTCA. Id. The government argued that because private persons
do not operate lighthouses, no liability existed under the FTCA.
Id. at 64.
The Supreme Court disagreed. The Court explained that the
Coast Guard’s operation of the lighthouse was analogous to a
private person who undertakes to warn the public of danger as a
good Samaritan. Id. at 69. In undertaking that activity, a
good Samaritan would assume a duty to use due care to make
certain that the light was working.4 Id.
In Olson, the plaintiffs, mine workers and a spouse,
brought a claim under the FTCA, “claiming that the negligence of
federal mine inspectors helped bring about a serious accident at
an Arizona mine” where the miners were injured. 546 U.S. at 45.
The government argued that mine inspection would not lead to
liability for a state or municipality and that mine inspection
was a unique government function. Id. The Court disagreed and
concluded that good Samaritan analogies also existed in the
context of mine inspection, as in the context of private parties
who do safety inspections. Id. at 48. For that reason,
liability existed under the FTCA.
4 Importantly, the Court did not consider various state and municipal operations, such as road signs and other warnings of dangers, as analogous activities.
6 B. Alonzo’s Claim
In this case, Alonzo alleges that Connolly “had a duty to
conduct the search of Ms. Alonzo’s home with reasonable care
under the circumstances, and to avoid conduct which would place
officers and the home occupants in foreseeable danger of
injury.” Compl. Doc. no. 1, ¶ 30. Alonzo further alleges that
Connolly breached that duty of care when he kicked in the closed
door inside the apartment while holding his loaded gun with his
finger on or near the trigger.5 The government contends that New
Hampshire law does not recognize a duty for law enforcement
officers to use reasonable care while executing a search warrant
during a criminal investigation and that a search conducted by
DEA agents is a uniquely governmental action without a private
analogue.
C. Private Analogue
The government characterizes Alonzo’s claim as alleging
that Connolly negligently executed the search warrant. The
government asserts that no private analogue exists for negligent
execution of a search warrant because only law enforcement
The government is liable under the FTCA for the actions of 5
its employees, “acting within the scope of his office or employment.” § 1346(b)(1). Therefore, the defendant in this case is the government under a theory of vicarious liability.
7 officers can obtain and execute search warrants. See, e.g.,
Washington v. DEA, 183 F.3d 868, 873 (8th Cir. 1999) (concluding
that “the application process for, and execution of, a search
warrant has no private analogue”). In this case, however,
Alonzo does not challenge either the application process or the
execution of the search warrant. Therefore, even if it were
persuasive, the Eighth Circuit’s conclusion in Washington does
not apply in this case.
The Supreme Court has explained that “all Government
activity is inescapably ‘uniquely governmental’ in that it is
performed by the Government.” Indian Towing, 350 U.S. at 67.
Nevertheless, the Court stated, “it is hard to think of any
governmental activity on the ‘operational level’ . . . which is
‘uniquely governmental,’ in the sense that its kind has not at
one time or another been, or could not conceivably be, privately
performed.” Id. at 68. For that reason, the FTCA “extends to
novel and unprecedented forms of liability.” United States v.
Muniz, 374 U.S. 150, 159 (1963).
In Indian Towing and Olson, the Supreme Court held that
liability under the FTCA was not premised on governmental or
municipal liability for the same or similar activities. Olson,
546 U.S. at 45-46. Instead, the court must “look to the state-
8 law liability of private entities.”6 Id. at 46. Applying the
rule from Olson and Indian Towing, other courts have found
analogies to actions by private persons for governmental
activities.
In Mayorov v. United States, 84 F. Supp. 3d 678, 697-701
(N.D. Ill. 2015), the court considered FTCA claims of negligence
and false imprisonment, arising from an immigration detainer
issued against the plaintiff by ICE officers, and analogized
those claims to negligence by a private security contractor and
a citizen’s arrest. See also Watson v. United States, 133 F.
Supp. 3d 502, 525-26 (E.D.N.Y. 2015). In Avalos-Palma v. United
States, 2014 WL 3524758, at *12 (D.N.J. July 16, 2014), the
court analogized wrongful deportation by ICE agents to
violations of statutory duties by a private person with
supervisory authority over the plaintiff.
The duty of the Ogala Sioux Tribe Public Safety Commission
in response to a car accident, specifically the officer’s
failure to find the car which had gone off the highway, was
found to be analogous to the duty of a good Samaritan under
6 In Muniz, which involved two consolidated cases, the plaintiffs brought claims under the FTCA to recover for injuries due to the alleged negligence of the medical staff, in one case, and guards, in the other case, at federal prisons. 374 U.S. at 152. The Court found that “an analogous form of liability exists” because states “have allowed prisoners to recover from their jailers for negligently caused injuries” and some states allowed suits against the state itself. Id. at 159-60.
9 South Dakota law. White v. United States, 2014 WL 4782855, at
*5-*6 (D.S.D. Sept. 24, 2014). A high speed chase by military
police was found to be analogous to a private claim for
negligent driving. Stroh v. United States, 2012 WL 4069354, at
*6 (D. Colo. Sept. 17, 2012); but see Hetzel v. United States,
43 F.3d 1500, 1503-04 (D.C. Cir. 1995) (prior to Olson,
analogizing DEA officer’s high speed chase to law enforcement
activity). Courts have found no private analogue for government
action when the challenged action is quasi-judicial or quasi-
legislative rather than operational. Storms v. United States,
2015 WL 1196592, at *19-*20 (E.D.N.Y. Mar. 16, 2015).
Despite the holding in Olson, the Fifth Circuit analogizes
federal law enforcement activities, such as actions by DEA
agents and Border Patrol officers, to state or municipal law
enforcement officers and applies the rules and defenses that are
applicable to law enforcement officers under state law. See
Mendez v. Poitevent, 823 F.3d 326, 334-35 (5th Cir. 2016);
Villafranca v. United States, 587 F.3d 262-64 (5th Cir. 2009).
In the context of FTCA claims arising from the plaintiff’s
detention by immigration officials, the Second Circuit noted
that some courts have drawn an analogy to state law enforcement
officers but found the more appropriate analogy would be to a
private person making a citizen’s arrest, although no final
ruling was necessary in that case because the result was the
10 same under either analogy. Liranzo v. United States, 690 F.3d
78, 95-96 (2d Cir. 2012). The Eighth Circuit found a private
analogy in negligence for an Indian tribe’s police department
but also noted that the plaintiff did not state a claim even if
the state’s public duty law would apply. Sorace v. United
States, 788 F.3d 758, 763-64 & n.3 (8th Cir. 2015).
Alonzo contends that a private analogue exists in her case
for a private person who owns guns and is required to use due
care, even in perilous situations. For example, Alonzo
suggests, a private person might attempt to enter a locked room
while holding a gun, because of concern about the danger in the
room, and would be required to use reasonable care in the use of
the gun in that situation.7 Under Olson and Indian Towing, a
7 Analogous circumstances also could arise if a private person suspected that an intruder was in his home and attempted to roust the intruder while holding his gun or if a person accidentally shot another person while in his own house or another person’s house. See, e.g., Citizens Ins. Co. of Am. v. Ung, 2 F. Supp. 3d 622, 625 (E.D. Pa. 2014) (finding insurance coverage for negligence action against individual who shot another individual); North Carolina Farm Bureau Mut. Ins. Co. v. Lynn, 2011 WL 4917043, at *3 (N.C. Ct. App. Oct. 18, 2011) (finding insurance coverage for negligence action arising from defendant’s shooting of an individual in his home); Am. Family Mut. Ins. Co. v. Larson, 2010 WL 1439687, at *1 (D. Minn. Apr. 13, 2010); Key v. Burchette, 517 S.E.2d 667, 372 (N.C. Ct. App. 1999); Fire Ins. Exchange v. Tibi, 51 F. Supp. 2d 1065, 1069 (D. Mont. 1995). In addition, private security guards and property managers might be armed to protect themselves or private property. See, e.g., Allen v. Bryers, --- S.W.3d ---, 2016 WL 7378560, at *1 (Mo. Dec. 20, 2016) (en banc); Hemings v. Redford Lounge, Inc., 485 N.E.2d 1378, 1380 (Ind. Ct. App. 1985).
11 private analogy exists in this case to private individuals using
guns, including in circumstances that are similar to Connolly’s
use of his gun while kicking in a door at Alonzo’s apartment.8
D. Viability of Negligence Claim
Alonzo contends that Connolly owed her a duty to use
reasonable care in handling his gun while conducting the search.
“To recover for negligence, the plaintiff must demonstrate that
the defendant had a duty to the plaintiff, that she breached
that duty, and that the breach proximately caused injury to the
plaintiff.” England v. Brianas, 166 N.H. 369, 371 (2014). In
its motion to dismiss, the government challenges the existence
of a duty in the circumstances of this case.
“A duty exists, under [New Hampshire] common law, to use
reasonable care to avoid foreseeable risks of harm.” Copp v.
Atwood, 2005 WL 139180, at *2 (D.N.H. Jan. 24, 2005) (citing
Goodwin v. James, 134 N.H. 579, 583 (1991)). When a question
arises as to whether the defendant owed a duty to the plaintiff,
the court must determine “whether the defendant is under any
obligation for the benefit of the particular plaintiff.”
England, 166 N.H. at 371. In other words, the court must
New Hampshire allows private persons to own and carry guns. 8
In fact, New Hampshire citizens are now allowed to carry loaded and concealed guns without a license. See Senate Bill 12, signed by Governor Sununu on Feb. 22, 2017, which repealed RSA 159:4.
12 consider “whether the plaintiff’s interests are entitled to
legal protection against the defendant’s conduct.” Lahm v.
Farrington, 166 N.H. 146, 150 (2014) (internal quotation marks
omitted).
The government asserts, based on Lahm, 166 N.H. at 154,
that Connolly owed no duty to Alonzo because New Hampshire does
not recognize any duty owed by police officers to use reasonable
care in conducting a criminal investigation.9 In support, the
government contends that the interests of law enforcement
officers in conducting their investigations without the
restraints imposed by concerns about liability outweigh any duty
owed to a criminal suspect. Alonzo contends that Lahm does not
limit the duty of police officers to the extent the government
asserts and that Lahm does not apply because liability under the
FTCA is based on analogous actions by private individuals, not
law enforcement officers.
The government’s theory is based on its view of the
particular relationship between Connolly, as a law enforcement
9 The New Hampshire Supreme Court long ago decided that police officers do have a duty to use reasonable care while performing their duties and that police officers are liable for injuries that they negligently inflict on both those they are arresting and innocent third parties. Am. Motorists Ins. Co. v. Rush, 88 N.H. 383, 190 A. 432, 434 (1937). Although the government argues that Am. Motorists was overruled by Lahm, the New Hampshire Supreme Court did not make that ruling explicitly and the facts of the cases do not show that to be true.
13 officer, and Alonzo, as a criminal suspect. As is explained
above, however, Connolly’s actions are analyzed in the context
of an analogous private person rather than as a law enforcement
officer.10 As a result, the analysis of duty owed by law
enforcement in Lahm does not apply here where the court must
look to analogous conduct by a private individual rather than a
law enforcement officer.
In this case, Alonzo and the children in her home had an
interest in being protected from being shot by Connolly while he
handled his gun during the search of their apartment. Connelly
knew that Alonzo and the children were close by and were at risk
if his gun discharged. Therefore, Connolly had a duty to use
reasonable care to avoid the foreseeable risk of accidentally
shooting his gun, which was loaded with his finger on or near
the trigger, while he kicked in a door. Private individuals,
10 The dispute about the appropriate analogy also raises a question of whether state-law affirmative defenses, which apply only to public actors such as law enforcement officers, can be used by the government to avoid liability under the FTCA. The Supreme Court has held that state law immunities cannot limit claims under the FTCA. Muniz, 374 U.S. at 164-65; Rayonier Inc. v. United States, 352 U.S. 315, 318-19 (1957). Whether other state law affirmative defenses may be used by the government to avoid liability under the FTCA has been decided differently by the courts that have addressed the question. See, e.g., Fifer v. United States, 649 F. App’x 426, 428 (9th Cir. 2016); Mendez, 823 F.3d at 335-36; Liranzo, 690 F.3d at 96-96; Begay v. United States, 2016 WL 6394925, at *24–*27 (D.N.M. Sept. 30, 2016); Valdez v. United States, 58 F. Supp. 3d 795, 828-29 (W.D. Mich. 2014).
14 when using guns, have a specific duty to use reasonable care to
avoid injury to people, and a higher degree of care is required
when the risk of an accident is considerable. See Webster v.
Seavey, 83 N.H. 60, 138 A. 541, 543 (1927).
As a result, Connolly, whose actions are considered in the
context of an analogous private person, had a duty to use
reasonable care in handling his gun during the search and
neither the holding nor the reasoning in Lahm applies to
Alonzo’s negligence claim in this case.
Conclusion
For the foregoing reasons, the defendant’s motion to
dismiss (document no. 6) is denied.
SO ORDERED.
__________________________ Joseph DiClerico, Jr. United States District Judge
April 24, 2017
cc: Megan E. Douglass, Esq. Andrew K. Lizotte, Esq. H. Jonathan Meyer, Esq.