are not liable in tort. Restatement § 118. Finally, "excessive use of force" is not a tort. Excessive force negates privilege, see Restatement § 131-134, and may constitute the tort of battery.
In sum, this is a state tort action. The essential elements of the alleged torts, as well as the defense of privilege, are in issue and must be judged by Pennsylvania civil standards.
In this case, the federal criminal code, the state criminal code, and the Constitution have no independent significance.
In this case, defendant may be subject to liability for five torts: assault, battery, false imprisonment, negligence, and/or malicious prosecution. In addition to denying that these torts were committed, defendant claims the privilege of arrest. In applying the law to the facts, it is useful to have in mind an outline of the torts and the privilege.
Assault requires (1) an act intended to cause harmful or offensive bodily contact, or imminent apprehension of such contact, and (2) actual imminent apprehension. See Restatement § 21. The first element of battery is identical to that of assault, see id. § 18(1)(a), but battery requires actual contact, rather than fear of contact. Id. § 18(1)(b). False imprisonment requires intentional confinement plus either awareness of, or harm from, the confinement. See id. § 35. Negligence requires that the breach of a duty of reasonable care proximately cause harm to the plaintiff. See id. §§ 280-283, 430. Malicious prosecution requires that prior proceedings (1) have terminated in favor of the accused, and (2) had been brought without probable cause and primarily for other than securing justice. See id. § 653. "An arrest is the taking of another into the custody of the actor for the actual or purported purpose of bringing the other before a court, or of otherwise securing the administration of law." Id. § 112, quoted in Gagliardi, 446 Pa. at 149, 285 A.2d at 111. See also Restatement § 36 (definition of confinement).
On the facts of this case, the agents arguably arrested plaintiff at one of three junctures: (1) downstairs; (2) when Jenkins touched plaintiff's elbow; and (3) when the agents told Belcher that he was under arrest after the altercation broke out. Jenkins' touching plaintiff's elbow constituted neither assault nor battery. Among other things, there was no intention to cause harmful or offensive contact,
no intent to cause fear of such contact, and no offensive contact. Jenkins had no duty to avoid touching plaintiff's elbow, nor did he act unreasonably; therefore, he was not negligent. No arrest or imprisonment occurred when Jenkins touched the elbow and encouraged plaintiff to head toward the stairs; plaintiff was free at that time merely to refuse to accompany the agents. Further, as subsequent events demonstrate, at that moment plaintiff was subject to neither custody nor control of the agents, nor was he constrained by their authority or official capacity. For the same reasons, no tort was committed at any time prior to Jenkins' touching plaintiff's elbow.
An arrest occurred subsequent to plaintiff's forceful aggression toward Jenkins. See Restatement § 112. Dowling informed plaintiff immediately upon his assault that he was under arrest, and the agents then attempted to effect that arrest. A warrantless arrest by a peace officer
is privileged if the arresting officer reasonably suspects that the arrestee committed a felony, or if the officer reasonably suspects that the arrestee participated in an affray committed in the officer's presence.
The privilege can be lost for a variety of reasons. Id. §§ 127-133. Here, plaintiff was participating in an affray with the agents. Furthermore, they reasonably suspected that he was committing a felony in violation of 18 U.S.C. § 111
forcibly assaulting a Secret Service agent in the performance of official duties.
Plaintiff argues that he was unsure that the agents actually were federal officers, even after they had identified themselves and shown their badges. Ignorance would help plaintiff only if it negated privilege by requiring an extra element suspicion of plaintiff's knowledge of the officer's identity as part of the reasonable suspicion needed to invoke privilege. Here, knowledge of the officer's identity is not an element of the crime, so it certainly need not be a part of the arresting officer's suspicion.
Knowledge of the identity or official character of the person assaulted is not an essential element of a § 111 offense. Intent to assault a federal officer is not requisite, merely intent to assault. United States v. Feola, 420 U.S. 671, 676-86, 95 S. Ct. 1255, 1259-64, 43 L. Ed. 2d 541 (1975). The assault must be intentional, and proof of ability to inflict harm is required for conviction. United States v. Johnson, 462 F.2d 423 (3d Cir. 1972), cert. denied, 410 U.S. 937, 93 S. Ct. 1396, 35 L. Ed. 2d 602 (1973). The purpose of the statute is to protect federal officers performing their duties, and such purpose "is not achieved where individuals are at liberty to resist federal officers in the performance of their duties because of a difference of opinion, whether real or imagined, regarding either the scope or method of those duties." Id. 427-28 (footnote omitted). The "federal officer" requirement is merely jurisdictional. Feola, 420 U.S. at 676, 95 S. Ct. at 1260.
In United States v. Goodwin, 440 F.2d 1152 (3d Cir. 1971), the Third Circuit assessed the degree of force necessary for conviction under § 111. The defendant pushed and struggled with FBI agents and attempted to break away from their grasp after they had announced that they were FBI agents and that there was a warrant for the defendant's arrest. Id. 1154. The court affirmed his conviction for forcible assault and resistance.
Here, plaintiff's initial forcible resistance, before it escalated, resembles that in Goodwin. Thus, notwithstanding plaintiff's professed ignorance, the agents reasonably suspected a § 111 violation and were privileged to arrest him.
The initial privilege of arrest may be lost through the use of excessive force. See Restatement § 131-134. Under Pennsylvania law, a peace officer making a lawful arrest:
is justified in the use of any force which he believes to be necessary to effect the arrest and of any force which he believes to be necessary to defend himself or another from bodily harm while making the arrest. However, he is justified in using deadly force only when he believes that such force is necessary to prevent death or serious bodily injury to himself or such other person ....