
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                                                      ____________________        No. 94-1369                              MANUELA RODRIGUEZ, ET AL.,                               Plaintiffs, Appellants,                                          v.                              UNITED STATES OF AMERICA,                                 Defendant, Appellee.                                                                                      ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                [Hon. Gilberto Gierbolini, Senior U.S. District Judge]                                           __________________________                                                                                      ____________________                                        Before                                        Torruella,* Chief Judge,                                           ___________                            Bownes, Senior Circuit Judge,                                    ____________________                               and Cyr, Circuit Judge.                                        _____________                                                                                      ____________________             Juan Rafael Gonzalez-Munoz, with  whom Gonzalez Munoz Law Office,             __________________________             _________________________        Gerardo  Pavia-Cabanillas  and  Moreda  &  Moreda  were on  brief  for        _________________________       _________________        appellants.             Peter R. Maier, Attorney,  Guillermo Gil, United States Attorney,             ______________             _____________        Frank  W. Hunger,  Assistant  United States  Attorney,  and Robert  S.        ________________                                            __________        Greenspan, Attorney, were on brief for appellee.        _________                                                                                      ____________________                                     May 15, 1995                                                                                      ____________________                                    ____________________             *Chief  Judge Torruella heard  oral argument in  this matter, but        did not  participate in  the drafting  or the  issuance  of the  panel        opinion.   The  opinion  is therefore  issued  pursuant to  28  U.S.C.          46(d).                    CYR, Circuit Judge.   Plaintiffs-appellants     Manuela                    CYR, Circuit Judge.                         _____________          Rodr guez and  family members     challenge the  summary judgment          entered in the United  States District Court for the  District of          Puerto  Rico dismissing  their Federal  Tort Claims  Act ("FTCA")          suit for damages resulting from  the errant arrest and  imprison-          ment of Manuela Rodr guez  by the United States Marshals  Service          pursuant  to a  valid  warrant.   We  affirm the  district  court          judgment.                                            I                                          I                                     BACKGROUND1                                     BACKGROUND                                     __________                    On March 14, 1975, in Mineola,  New York, an individual          who  identified herself  as "Manuela  Rodr guez" was  arrested on          drug charges by the United States Drug Enforcement Administration          ("DEA").  The arrestee provided DEA with a social security number          and the following additional information which the agents record-          ed on a  standard DEA booking form:   sex:  female; height:   5';                                                ___           ______          weight:   140 pounds;  race:  white;  place of birth:   Maranjito          ______                 ____           ______________          [sic],  Puerto  Rico;  date  of   birth:    December  29,   1942;                                 ________________          citizenship:   United States; identifying characteristics:   scar          ___________                   ___________________________          on stomach, right-handed;  eyes:   brown; hair:   brown;  mother:                                     ____           ____            ______          deceased; father:  deceased; sister:  Martha Rodriques.  On April                                                            q                    ______             ______          7,  1975,  the United  States  District  Court for  the  Southern          District of New  York issued an  arrest warrant against  "Manuela                                    ____________________             1The  relevant facts are recited  in the light  most favorable to        plaintiffs-appellants, against whom summary judgment was entered.  See                                                                           ___        Velez-Gomez v. SMA Life Assur. Co., 8 F.3d 873, 874 (1st Cir. 1993).         ___________    ___________________                                          2          Rodr guez," directed to  the DEA  for execution.   The DEA  never               g          located the subject.                      In  1989,  the United  States  Marshals  Service became          responsible for executing DEA arrest warrants, and Deputy Marshal          Sandra Rodr guez  ("Deputy Rodr guez"), Southern  District of New          York ("SDNY"), was  assigned to  locate the subject  of the  1975          arrest  warrant.  Sometime later, a credit bureau check by Deputy          Rodr guez yielded a  fresh lead:  a "Manuela  Rodr guez" residing          in  Bayam n,  Puerto Rico,  with  the  identical social  security          number recorded in the 1975 DEA booking form.                      Deputy Rodr guez promptly dispatched an "arrest packet"          to the  United States Marshals  Service, District of  Puerto Rico          ("DPR"), which included copies of the 1975 DEA booking form and a          handwritten  information  form  prepared  by  the  United  States          Marshals Service,  SDNY.   Deputy Rodr guez requested  the United          States Marshals Service, DPR, to "check the following lead."  Her          cover memorandum summarized  most of the identifying  information          in the  accompanying documents  and included the  following addi-          tional information:  a/k/a  Lopez, Dora Restrepo, a/k/a Restrepo,                               _____  _____  _____________  _____ ________          Dora; weight:   140 (back  in 1975); sister:   Martha  Rodr guez.                                                                      g          ____                 ____  __          Even though Deputy Rodr guez, just five days earlier, had shown a          photograph of the 1975 arrestee in the New York City neighborhood          where "Manuela Rodr guez" was last believed to  have resided, her          cover memorandum noted:   "photo not available."  Nor  did Deputy          Rodr guez  request  fingerprints  for  inclusion  in  the  arrest          packet.        Shortly after  the  arrest packet  reached  Puerto                                          3          Rico on January  26, 1990,  the deputy marshals  assigned to  the          case, C sar  Torres and Eugenio  D az, requested that  the United          States  Marshals  Service,  SDNY,  forward a  photograph  of  the          subject.   The record is  silent as to  whether fingerprints were          requested.  In  any event,  Deputies Torres and  D az once  again          were advised that no photograph was available and that SDNY could          provide no additional information.                      On February  8, 1990,  after confirming that  a Manuela          Rodr guez indeed  was residing at  the Bayam n address  listed in          the arrest packet, Deputies Torres and D az alerted a  magistrate          judge  that  an arrest  was imminent.    Later in  the afternoon,          Deputies  Torres and  D az  proceeded to  the Bayam n  address to          execute the  arrest warrant, and identified  themselves to plain-          tiff-appellant  Pedro  Gonzalez Martinez  ("Martinez"), plaintiff          Rodr guez's husband.  Martinez  phoned plaintiff Rodr guez at her          place of work, and she arrived home at approximately 4:50 p.m.                    At  her insistence, the  deputies interviewed plaintiff          Rodr guez in the presence of  her family.  She confirmed  most of          the information provided in the arrest packet, including her full          name,  social security  number, birthplace,  birthdate, abdominal          scar, right-handedness, and that  both her parents were deceased.          Prior to her arrest, plaintiff also told the deputy marshals that          she had a sister  named "Marta Rodr guez."  Although  the summary                                      t       g          judgment  record  reveals  that  plaintiff  Rodr guez  has  three          siblings, including  a sister  named "Maria" and/or  "Marta," the          only  grounds asserted  in opposition  to summary  judgment below          ____                                          4          were  the alleged  three-inch height  difference, a  twenty-pound          weight difference,  an additional  scar on  plaintiff Rodr guez's          forehead,  the failure  of  the United  States Marshals  Service,          SDNY, to forward  a photograph and  fingerprints to Puerto  Rico,          and  the failure of Deputies  Torres and D az  to request finger-          prints.                      When Deputies Torres and D az advised  that they had an          arrest warrant for "Manuela Rodr guez," plaintiff protested    to          no avail     that she  could not be  the individual named  in the          warrant since she  had never been to New York.  Immediately after          the arrest, the deputies attempted    likewise  to no avail    to          contact a magistrate judge, then booked plaintiff and transported          her to  a pretrial detention facility  for incarceration pursuant          to  the provisional  commitment  order previously  issued by  the          magistrate judge.  The  following day, February 9, plaintiff  was          brought before a magistrate judge and released on personal recog-          nizance pending a removal hearing on February 13, 1990.                      In anticipation  of  the removal  hearing, Deputy  D az          again requested a photograph of the 1975 arrestee from the United          States  Marshals  Service, SDNY.    Finally,  on February  10,  a          photograph  taken at the Mineola Police Department at the time of          the 1975 arrest was  mailed to Puerto Rico.  When  the photograph          arrived on February 12, it was readily  determined that plaintiff          Rodr guez was not the  "Manuela Rodr guez" arrested in 1975.   On          February  13, the  government  moved to  dismiss all  proceedings          against plaintiff Rodr guez.                                           5                    In  due  course  the  United  States  Marshals  Service          disallowed  the administrative  claim filed  by plaintiffs-appel-          lants, clearing the way for the present action against the United          States for false  arrest and false  imprisonment based solely  on          the  conduct of its  deputy marshals  in (1)  initiating, through          Deputy Rodr guez, the wrongful  arrest and detention of plaintiff          Rodr guez pursuant  to the 1975 arrest  warrant without obtaining          or  forwarding a photograph and fingerprints of the 1975 arrestee          to the District of Puerto Rico; (2) executing the arrest warrant,          through  Deputies  Torres  and  D az, without  a  photograph  and          fingerprints of  the subject  and notwithstanding the  height and          weight  differences  between  plaintiff  Rodr guez  and  the 1975          arrestee;  and (3) delaying plaintiff Rodr guez's initial appear-          ance before a magistrate judge.2                    The  United States  moved for  summary judgment  on all          claims.   The district court ruled that plaintiffs had not gener-          ated a trialworthy  dispute as to whether the  arresting deputies          had a reasonable basis for believing that plaintiff Rodr guez was          the subject named in the 1975  arrest warrant.  It concluded that          the arresting deputies, with valid warrant in hand, were under no          duty to  corroborate their reasonable identification by obtaining          either fingerprints or a fifteen-year-old photograph and that any          failure on the part of Deputy Rodr guez to gather or forward such          information was immaterial because the information made available                                    ____________________             2Appellants have not pursued the latter claim on appeal.                                          6          to Deputies Torres  and D az prior to the  arrest was adequate to          support  a  reasonable  belief  by the  arresting  deputies  that          plaintiff Rodr guez was the person named in the 1975 warrant.                    Plaintiffs-appellants  challenge   the  district  court          rulings, on two grounds:  (1) that Deputies Torres and D az, with          neither a photograph nor  the fingerprints of the 1975  arrestee,          could not have formed  a reasonable belief that  plaintiff Rodr -          guez was the subject  of the 1975 warrant, particularly  in light          of  the height  and  weight discrepancies;  and  (2) that  Deputy          Rodr guez negligently failed to  include a photograph and finger-          prints of the 1975  arrestee in the arrest packet  transmitted to          the United States Marshals Service, DPR.                    The  United States responds in  kind.  First, it claims          that  Deputies Torres and  D az had  reasonable cause  to believe          that plaintiff  Rodr guez was the 1975 arrestee; hence, they were          not negligent.   Second, even assuming  negligent conduct on  the          part of Deputy Rodr guez in the pre-arrest investigation, federal          law enforcement officers owe no  duty to exercise reasonable care          in  conducting  pre-arrest  investigations  and,  secondly,  FTCA            2680(h)   waives  sovereign  immunity  from  suit  for  certain          enumerated intentional torts only    among them false  arrest and          false imprisonment    and not for mere negligent investigation.                                            II                                          II                                      DISCUSSION                                      DISCUSSION                                      __________          A.   Summary Judgment          A.   Summary Judgment               ________________                                          7                    A  grant  of summary  judgment  is  subject to  plenary          review under the  same criteria incumbent on  the district court.          Guzman-Rivera  v. Rivera-Cruz,  29  F.3d 3,  4  (1st Cir.  1994).          _____________     ___________          Summary  judgment is appropriate where  the record, viewed in the          light  most conducive  to the  party resisting  summary judgment,          reveals no  trialworthy issue  of material  fact,  and the  party          requesting it is entitled to judgment as a matter of law.  Id.                                                                     ___          B.   Sovereign Immunity          B.   Sovereign Immunity               __________________                    For many years the general waiver of sovereign immunity          afforded by  FTCA   2674  permitted  tort actions  to be  brought          against the United  States "in the  same manner  and to the  same          extent   as   [against]   a   private   individual   under   like          circumstances,"  28  U.S.C.    2674,  except  for such  so-called                                                ______          "intentional  torts"  as  assault,  battery,  false imprisonment,          false  arrest, malicious  prosecution, abuse  of process,  libel,          slander,  misrepresentation, deceit,  and interference  with con-          tract  rights, 28  U.S.C.    2680(h).    Then, in  1974  Congress          narrowed  the  "intentional  torts"  exception so  as  to  enable          ________                             _________          actions against the United States based on six state-law torts             assault,  battery,  false imprisonment,  false  arrest, abuse  of          process  and malicious prosecution    arising  from acts or omis-          sions of its  "investigative or law  enforcement officers."   Id.                                                                        ___          Thus, the United States is  liable    "in the same manner  and to          the  same extent"    for  a false arrest  of plaintiff Rodr guez,          "as a private individual" would be  in "like circumstances" under          the applicable state law.                                          8          C.   Applicable Substantive Law          C.   Applicable Substantive Law               __________________________                    The  FTCA ordains that the "law of the place" where the          act or omission occurred shall govern actions for damages against          the  United States.  28  U.S.C.   1346(b).   Its reference to the          "law  of the  place" encompasses  choice-of-law principles.   See                                                                        ___          Richards v.  United States, 369  U.S. 1, 11-13 (1962);  In re All          ________     _____________                              _________          Maine Asbestos Litigation, 772  F.2d 1023, 1029 (1st  Cir. 1985),          _________________________          cert. denied,  476 U.S. 1126  (1986).   As all material  acts and          _____ ______          omissions  by Deputy Rodr guez took  place in New  York, we would          look  to New York law for the  rule of decision applicable to her          actions.  New York choice-of-law principles provide that conduct-          regulating causes of action  normally are governed by the  law of          the place where an  actionable injury is sustained.   See Schultz                                                                ___ _______          v. Boy Scouts of Am., Inc., 480 N.E.2d 679, 684 (N.Y. 1985).               _______________________                    Any  injury to  plaintiff  Rodr guez  was sustained  in          Puerto  Rico.   Moreover, the  parties, as  well as  the district          court,  assumed from the start  that Puerto Rico  law governs any          actionable  claim predicated  on  alleged acts  and omissions  of          Deputy  Rodr guez in  New York.   In  these circumstances,  we do          likewise, see  Commercial Union  Ins. Co.  v. Walbrook  Ins. Co.,                    ___  __________________________     ___________________          Ltd., 7 F.3d  1047, 1048 n.1 (1st  Cir. 1993), since  Puerto Rico          ____          law bears a  "reasonable relation" to  all claims in  litigation.          Finally,  since the  false arrest  and false  imprisonment claims          under  Puerto  Rico  law raise  no  relevant  distinction  in the          present context, we  treat them  as identical  causes of  action.                                          9          Cf. Ayala v. San Juan Racing Corp., 112 P.R. Dec.804, 812 (1982).          ___ _____    _____________________          D.   The False Arrest Claims Relating          D.   The False Arrest Claims Relating               ________________________________               to Deputy Marshals Torres and D az               to Deputy Marshals Torres and D az               __________________________________                    Plaintiff  Rodr guez contends that  Deputies Torres and          D az  subjected her to false arrest by executing the 1975 warrant          despite  certain discrepancies  between the  physical description          given  by the  1975  arrestee and  the  physical description  and          biographical data  Deputy  Rodr guez provided  to  the  arresting          officers.   These discrepancies  were sufficient, she  argues, to          engender a  reasonable doubt which the  arresting deputies should          have resolved  by obtaining a  photograph or fingerprints  of the          1975  arrestee.    Their failure  to  do  so therefore  precluded          summary  judgment  on the  central  issue  whether the  arresting          officers could  have harbored a reasonable  belief that plaintiff          was the person named in the arrest warrant.                    Misidentification  cases comprise a  distinct subset of          false arrest claims, for which particularized rules and standards          were fashioned at common law.  See Restatement (Second) of Torts,                                         ___ _____________________________            125  (1965).  Even though many such claims have found their way          into the courts over the years, see William B. Johnson, Liability                                          ___                     _________          for False Arrest  or Imprisonment  Under Warrant  as Affected  by          _________________________________________________________________          Mistake as  to  Identity of  Person  Arrested, 39  A.L.R.4th  705          _____________________________________________          (1985), careful  research has  disclosed no reported  Puerto Rico          Supreme Court  decision addressing a false arrest  claim based on          the execution of a valid arrest warrant against the wrong person.                                          10                    As a  general matter, however, the  Puerto Rico Supreme          Court has  conformed its limited "false  arrest" jurisprudence to          common  law principles.   See, e.g., Ayala, 112  P.R. Dec. at 813                                    ___  ____  _____          (citing common  law  sources, including  Restatement (Second)  of                                                   ________________________          Torts);  Dobbins v. Hato Rey Psychiatric Hosp., 87 P.R.R. 28, 31-          _____    _______    __________________________          32  (1962)  (citing common  law  sources, including  Restatement,                                                               ____________          Torts  (1938)).   Accordingly, consistent  with  our longstanding          _____          practice  in cases where the  Puerto Rico court  has not diverged          from common  law principles, see  Importers Ctr., Inc.  v. Newell                                       ___  ____________________     ______          Cos., Inc., 758  F.2d 17, 20 (1st Cir. 1985) (looking to Restate-          __________                                               ________          ment (Second) of Contracts (1979), absent controlling Puerto Rico          __________________________          law);  United States  v. Marshall,  391 F.2d  880, 883  (1st Cir.                 _____________     ________          1968) (citing Restatement, Torts, where Puerto Rico Supreme Court                        ___________  _____          demonstrated  pattern of  reliance on  common law  authority), we          adopt the  Restatement (Second) of  Torts,    35-45A,  112-36, as                     ______________________________          the  appropriate  framework for  analysis  of  the instant  false          arrest claim.               1.   Conditional Privilege               1.   Conditional Privilege                    _____________________                    Generally speaking,  an arrest conducted  pursuant to a          valid warrant  is conditionally  privileged, and no  false arrest          liability  lies against  the officers  responsible.   Restatement                                                                ___________          (Second) of  Torts,     118,  122 (1965).    Moreover,  where  an          __________________          agent's  privilege  is  "properly exercised  on  his  principal's          _______          behalf,"  the principal likewise has a defense to an action based          on the conduct of the  agent.  Restatement (Second) of Agency,                                            ______________________________                                          11          217(a)(iii) (1958).3   The privilege attaching to  the conduct of          a government employee  acting within the scope  of his employment          likewise has been recognized as a defense available to the United          States  in  actions  based  on the  so-called  intentional  torts          enumerated in  FTCA    2680(h).   See, e.g.,  Arnsberg v.  United                                            ___  ____   ________     ______          States, 757 F.2d 971, 978-79 (9th Cir. 1985) (government liabili-          ______          ty for false arrest  under FTCA determined in light  of privilege          accorded law enforcement officer effecting arrest), cert. denied,                                                              _____ ______          475 U.S. 1010 (1986); Caban v. United States, 728 F.2d 68, 74 (2d                                _____    _____________          Cir. 1984) (same).  Thus, the United States is entitled to assert          in its defense  a conditional privilege conferred  upon its agent          by applicable local law in the same manner and to the same extent          as a  nongovernmental principal  could assert in  similar circum-          stances.  The legislative history accompanying the 1974 amendment          makes  clear  that  Congress  intended "to  make  the  Government          independently liable in damages for the same type of conduct that                                                  ____ ____          is alleged  to have occurred  in Bivens (and for  which that case                                           ______  ___ ___  _____ ____ ____          imposes  liability  upon   the  individual  Government  officials          _______  _________  ____   ___  __________  __________  _________                                    ____________________             3Section 217.  Where Principal or Agent has Immunity or Privilege              Section 217.  Where Principal or Agent has Immunity or Privilege                  In an action against a principal  based on the conduct of  a                  In an action against a principal  based on the conduct of  a                  servant in the course of employment:                  servant in the course of employment:                  (a)  The principal has a defense if:                  (a)  The principal has a defense if:                       . . . .                       . . . .                       (iii)  the  agent had  a  privilege  which he  properly                       (iii)  the  agent had  a  privilege  which he  properly                       exercised on his principal's behalf . . . .                       exercised on his principal's behalf . . . .        Restatement (Second) of Agency,   217(a)(iii).        ______________________________                                          12          involved)."   See S. Rep. No. 588,  93d Cong., 2d Sess. 3 (1973),          ________      ___          reprinted in  1974 U.S.C.C.A.N. 2789, 2791  (emphasis added); see          _________ __                                                  ___          also  Bivens v. Six  Unknown Named Agents of  Fed. Bureau of Nar-          ____  ______    _________________________________________________          cotics, 403 U.S. 388 (1971).          ______                    Although it is undisputed that plaintiff Rodr guez  was          arrested  pursuant to  a  valid arrest  warrant, the  conditional          privilege would not insulate the arresting officers from liabili-          ty unless the arrestee was                          (a) . . . a person sufficiently named or otherwise                    described  in the warrant and [was] reasonably believed                                              ___                    by the [officer] to be, the person intended, or                                                                 __                         (b)  although not  such  person, .  . .  knowingly                    caused the actor[s] to believe [her] to be so.          Restatement (Second) of Torts,   125 (emphasis added).  Since the          _____________________________          record  plainly  reflects  that  plaintiff  Rodr guez  maintained          throughout that she was not the person named in the 1975 warrant,                                  ___          we  need only inquire    pursuant to subsection 125(a)    whether          (1) she  was "sufficiently named  or otherwise  described in  the          warrant" and  (2) Deputies Torres and  D az "reasonably believed"          that  she was  "the person  intended" in  the warrant.    See id.                                                                    ___ ___            125(a).                     First and foremost, there  can be no question  that the          person  arrested  was "sufficiently  named"  in  the 1975  arrest          warrant,  see id.   125(a), which directed the arrest of a person                    ___ ___          with the same  name as  plaintiff Rodr guez.   A law  enforcement          officer "is privileged to arrest the  person to whom the name [in          the warrant] applies with  complete accuracy, although the [offi-                                          13          cer] may have reason to suspect that a mistake has been made, and                                  _______          that  the person,  though  accurately named,  is  not the  person          intended."  Id.   125 cmt. f (emphasis added).                        ___                    The  United States  argues that  the name  in  the 1975          warrant, together  with the  information contained in  the arrest          packet, provided ample basis for Deputies Torres and D az to form          an objectively reasonable belief that plaintiff Rodr guez was the          person named in  the warrant.  Indeed, the  information plaintiff          herself  provided  in response  to  questions  from the  deputies          comported in virtually every detail with the physical description          in  the arrest  packet, except  for a  three-inch discrepancy  in                                  ______          height and a twenty-pound difference in weight.4                      We  agree  with   the  government  that   these  slight          discrepancies     minor variations between the plaintiff's physi-          cal  description and  the fifteen-year-old  DEA booking  form de-          scription        could   not  have   undermined   the   objective          reasonableness of the  arresting deputies' belief that  plaintiff          was the person named in the 1975 warrant.  Furthermore, apparent-                                    ____________________             4The  arresting  deputies  confirmed  that  plaintiff Rodr guez's        birthplace, birthdate, abdominal scarring,  right-handedness, citizen-        ship, race, and  Social Security number were all identical to the data        contained in the  arrest packet.   Plaintiff even  confirmed that  her        sister had the same name as that which the 1975 arrestee had given for        her  sister.   Finally, plaintiff  informed Deputies  Torres and  D az        that, like the 1975 arrestee, both her parents were deceased as  well.             The record is silent  as to whether anyone (including  plaintiff)        noted the  three-inch height discrepancy at  the time of arrest.   The        twenty-pound  weight  difference  was  reasonably  attributed  by  the        deputies to the  fact that almost  fifteen years had passed  since the        arrest of "Manuela Rodr guez" in Mineola, New York.                                          14          ly mindful of the risks inherent in executing a  fifteen-year-old          arrest warrant,  Deputies Torres and D az  prudently attempted to          obtain further  information, as well  as a  photograph, from  the          United States Marshals Service, SDNY, but were told that no photo          or additional  information was available.   Indeed, the arresting          deputies  even  afforded plaintiff  Rodr guez  an opportunity  to          explain how anyone  other than  she could have  provided the  DEA          with all  this  information in  1975.   Plaintiff  Rodr guez  was          unable to explain then and offers no explanation now.                    Their  painstaking efforts  could  have  left  Deputies          Torres and D az  with little  inkling    let  alone a  reasonable                                                                 __________          belief     that plaintiff Rodr guez  was not the  "Manuela Rodr -          ______                                   ___          guez"  named in the arrest  warrant.  Thus, notwithstanding their          errant  arrest of an  innocent person, the  arresting officers             having utilized every available  means to preclude misidentifica-          tion    were left with no grounds for forming a reasonable belief          that  plaintiff Rodr guez was not the person intended in the 1975          arrest warrant.   Consequently, the  execution of the  valid 1975          arrest  warrant by Deputies Torres and D az was privileged.  And,          lastly, the United States  was entitled to rely on  the privilege          which attached  to the arresting  deputy marshals  as a  complete          defense to liability for false arrest, as provided by Restatement                                                                ___________          (Second) of Agency,   217(a)(iii).            __________________          E.   The Claims Relating to Deputy Rodr guez          E.   The Claims Relating to Deputy Rodr guez               _______________________________________                    Plaintiffs-appellants further contend  that the  United          States is liable for  the "negligent investigation and initiation                                          15          of arrest proceedings"  by Deputy Rodr guez.   The United  States          counters that federal law enforcement  officers owe no legal duty          to  exercise  reasonable care  in conducting  pre-arrest investi-          gations.   Additionally,  it argues  that FTCA     2680(h) waives          sovereign immunity from suit for six enumerated intentional torts          only -- assault, battery, false imprisonment, false arrest, abuse          of process and  malicious prosecution.   Thus,  according to  the          United States, even  if local law afforded a right  of action for          negligent  investigation and  initiation  it would  be barred  by          sovereign immunity.                                          16               1.   Negligent Investigation               1.   Negligent Investigation                    _______________________                    Plaintiffs-appellants  point  to  no   authority  which          recognizes  a right  of action  for "negligent  investigation" in          these circumstances, nor have we found any authority for imposing          liability on  the sovereign for  negligent investigation, whereas          several  courts have rejected such  claims.  See,  e.g., Smith v.                                                       ___   ____  _____          State,  324  N.W.2d 299,  302 (Iowa  1982);  Landeros v.  City of          _____                                        ________     _______          Tucson, 831 P.2d 850, 851 (Ariz.  App. Ct. 1992); Wimer v. State,          ______                                            _____    _____          841 P.2d 453,  455 (Idaho App.  Ct. 1992); cf. Bernard  v. United                                                     __  _______     ______          States, 25 F.3d 98, 102 (2d Cir. 1994) (applying New  York law in          ______          FTCA  action and  rejecting claim  that law  enforcement officers          failed to exercise due  care in effecting arrest); Boose  v. City                                                             _____     ____          of Rochester, 421 N.Y.S.2d 740, 744 (N.Y. App. Div. 1979) (ruling          ____________          that plaintiff "may not recover under broad general principles of          negligence .  . .  but must  proceed  by way  of the  traditional          remedies  of   false  arrest   and  imprisonment   and  malicious          prosecution").  We therefore  decline the invitation to speculate          that the Puerto Rico Supreme  Court would be receptive to  such a          claim.               2.   Instigation of False Arrest               2.   Instigation of False Arrest                    ___________________________                    Plaintiffs-appellants cite  Sami v. United  States, 617                                                ____    ______________          F.2d 755 (D.C. Cir.  1979), as support for their  contention that          the United States may be sued for the conduct of Deputy Rodr guez          in  initiating the errant arrest.  Sami  held that FTCA   2680(h)                                             ____          opens the government to suit for false arrest even though its law          enforcement officer  was not directly involved  in "frontline law                                   ___                                          17          enforcement work."   See  id. at 764;  but cf.  Pooler v.  United                               ___  ___          ___ ___  ______     ______          States,  787  F.2d 868,  872  (3d  Cir.) (restricting  waiver  of          ______          sovereign immunity  effected under  FTCA   2680(h)  to enumerated          torts by investigative or law enforcement officers "in the course          of a search, a seizure or an arrest"), cert. denied, 479 U.S. 849                                                 _____ ______          (1986).   We  need not  resolve the  question addressed  in Sami,                                                                      ____          however,  since we  conclude that  no right  of action  would lie          under the legal  principles likely  to be applied  by the  Puerto          Rico Supreme Court based on the conduct of Deputy Rodr guez.                     One  who  instigates or  participates  in  the unlawful          confinement of another is  subject to liability to the  other for          false arrest.  Restatement  (Second) of Torts,   45A.   "Instiga-                         ______________________________          tion"  is defined as "words or acts which direct, request, invite          or encourage the false  [arrest] itself."  Id.   45A cmt. c.  "In                                                     ___          the  case of an arrest, [instigation] is the equivalent, in words          or conduct, of 'Officer, arrest that man!'"  Id.  Though it is by                                                       ___          no  means clear  that Deputy  Rodr guez's  request to  "check the          following lead,"  see supra  p. 3,  amounted to  "instigation" as                            ___ _____          defined in the Restatement,  we consider whether Deputy Rodr guez                         ___________          herself  would be liable for instigating a false arrest of plain-          tiff Rodr guez in these circumstances.                     Instigation of  false arrest, like the  underlying tort          itself, is subject to  the conditional privilege accorded arrests          effected pursuant to a valid warrant.  Id.   45A cmt. b.   Conse-                                                 ___          quently, the conduct of  Deputy Rodr guez would be  privileged so          long as  the arrestee  was "sufficiently named  or otherwise  de-                                          18          scribed in the  warrant" and the  officer instigating the  arrest                                   ___              ___________          "reasonably believed"  that plaintiff  Rodr guez was  "the person          intended"  in the arrest  warrant.  Id.    125(a);  see id.   45A                                              ___             ___ ___          cmt. b.                     As noted above, see  supra p. 13, there is  no question                                    ___  _____          but that plaintiff Rodr guez was "sufficiently named" in the 1975          warrant.    Nor did  the evidence  developed at  summary judgment          generate  a trialworthy  dispute as  to whether  Deputy Rodr guez          "reasonably believed"  that the  person identified in  the arrest          packet  she forwarded to Puerto  Rico was the  person intended by          the 1975 arrest warrant.  See id.   125 cmt f.  Moreover,  plain-                                    ___ ___          tiffs-appellants have never suggested, either below or on appeal,          that their opportunity to conduct discovery was inadequate.                    The  record  evidence  reflects  that  Deputy Rodr guez          matched  the name and social security number of the fugitive with          the  name and social security number of an individual residing in          Puerto Rico.   The  arrest packet Deputy  Rodr guez forwarded  to          Puerto  Rico included extensive  personal and  family information          provided  by  the "Manuela  Rodr guez"  arrested  in 1975,  which          matched  almost  precisely the  personal  and family  information          gathered  on plaintiff Rodr guez in  1990.  There  were two minor          discrepancies  between  the  information  provided  by  the  1975          arrestee and that provided by plaintiff Rodr guez:   a three-inch          height  difference and  a  twenty-pound weight  difference.   But          there is no  record evidence  whatsoever to  suggest that  Deputy          Rodr guez was even aware of these discrepancies.                                          19                    Thus,  the information  forwarded by  Deputy Rodr guez,          when matched with the information relating to plaintiff Rodr guez          herself, afforded ample basis  for forming an objectively reason-          able  belief that plaintiff Rodr guez was the person named in the          1975 arrest  warrant.  Consequently,  Deputy Rodr guez's  conduct          relating to the errant  arrest, even assuming it were  actionable          as a  negligent instigation claim, would  be conditionally privi-          leged, see  Restatement  (Second) of  Torts,    125(a),  and  the                 ___  _______________________________          United  States would be entitled  to assert the  privilege in its          own  defense.   See  supra  pp.  11-15; Restatement  (Second)  of                          ___  _____              _________________________          Agency,   217(a)(iii).5          ______                                         III                                         III                                      CONCLUSION                                      CONCLUSION                                      __________                    As the  challenged conduct  of all three  Deputy United          States  Marshals was  privileged,  summary judgment  was properly          entered for the United States.                    Affirmed.  The parties shall bear their own costs.                    Affirmed.  The parties shall bear their own costs.                    ________   ______________________________________                            - Concurring Opinion Follows -                                               ____________________             5Nevertheless, given the many uncontrolled ramps leading onto and        off  the "information  highway,"  Judge Bownes'  wise counsel  clearly        offers law enforcement agencies the best means of avoiding recurrences        of the  insufficiently explained  wrong  done in  this  case.   As  my        brother  cautions, all  law enforcement  officers     whether directly        involved  in effecting an arrest or simply in gathering and forwarding        information for use by  the arresting officers    should  exercise the        high  degree of care commensurate  with the seriousness  of their mis-        sion.                                          20                      BOWNES,  Senior  Circuit Judge,  concurring  in the                      BOWNES,  Senior  Circuit Judge                               _____________________            judgment.  I agree with the judgment mainly because there was            an improbably close match between the information provided by            the  plaintiff and  the  detailed information  in the  arrest            packet.   Given this level  of specificity and  similarity, I            must conclude  that it would  be entirely unreasonable  for a            finder-of-fact to posit liability against the government.  It            was  not the government  which was culpable  but the impostor            who framed  the plaintiff some  fifteen years before  the ar-            rest.                      I  write separately, however, to emphasize that the            Restatement principles  underlying our decision should not be            applied  mechanically  where multiple  government  actors are            engaged in  collective action.   In  my view,  it would  be a            mistake to treat the New York and Puerto Rico marshals piece-            meal, as isolated actors rather than as co-agents of a common            principal.  Under the right circumstances, co-agents may have            a duty to exchange certain information; where there is such a            duty,  the reasonableness of a  given act --  and the princi-            pal's liability for that act -- should be  judged in light of            what the actor knew  or should have known, assuming  the rea-            sonable conduct  of other concerned actors.   This concept of            imputed knowledge seems consistent with agency  and vicarious            liability principles.                                          20                      The  failings  of  the  piecemeal approach  can  be            illustrated using  the facts of this case.  A piece of infor-            mation  may mean  little in  the abstract  to the  person who            holds  it, but might be decisive to another actor in context.            In this  case, a photograph  remained inert in  Deputy Rodri-            guez's  file; had it been  forwarded to the  Puerto Rico mar-            shals  in the field, it  would have prevented the plaintiff's            arrest.   Although I agree with my  brother that, in light of            the  specificity of  the  information in  her arrest  packet,            Deputy  Rodriguez had no reason to fear that the wrong person            might  be  arrested, the  opinion  nevertheless obscures  the            government's one regrettable omission.  After all, the Puerto            Rico marshals  saw fit  to  request the  photograph; and  the            United States has never explained why it was not timely sent.                      I doubt that common law principles either dictate a            piecemeal approach,  or foreclose  a more integrated  view of            collective  action.  Indeed, my brother's opinion momentarily            adopts  an integrated  view when  it rejects  the instigation            claim  against Deputy Rodriguez.  See ante at 18 ("The arrest                                              ___ ____            packet  Deputy  Rodriguez forwarded  to  Puerto  Rico .  .  .            matched almost precisely the personal  and family information            gathered on plaintiff Rodriguez  in 1990.").  This correspon-            dence matters  only if Deputy  Rodriguez is imputed  with the                                          21            knowledge  of information  that  was gathered  solely by  the            Puerto Rico marshals.                      In  sum,  I have  no quarrel  with  the bulk  of my            brother's scholarly opinion.   I merely wish to raise  a word            of caution against judging co-agents of a common principal as            isolated  actors; their actions should  be assessed as of one            piece.                                           22
