

                  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  &amp;  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
