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October 27, 1988

Douglas M. ROURKE, Plaintiff,
UNITED STATES of America; Michael C.E. Quirk, Charles Raad, and Richard Fritz, Special Agents, Federal Bureau of Investigation, Allentown, Pa.; Lopatcong Township, NJ; Neil Corley; and Norman Viebrock, Defendants

The opinion of the court was delivered by: TROUTMAN


 Plaintiff Douglas Rourke was arrested by the defendant FBI agents for bank robbery. The charges were subsequently dismissed by the Magistrate upon the motion of the United States. Plaintiff now seeks compensation for having been arrested and detained when, he alleges, the agents should reasonably have known that he was not the perpetrator of the crime. Specifically, plaintiff alleges that local law enforcement officials gave the federal agents information indicating that the plaintiff was older and otherwise much different in appearance from the suspect described by witnesses to the crime. Moreover, allegedly in order to "solve" a high visibility case quickly, plaintiff asserts that the officers showed the witnesses fifteen to twenty year-old photographs of the plaintiff, thereby eliciting identifications of him by the witnesses which were then used in an affidavit of probable cause to obtain a warrant for his arrest from the Magistrate.

 The sum and substance of the plaintiff's claims are that the FBI agents conducted a "haphazard" investigation calculated to achieve a quick arrest in disregard of the plaintiff's rights. The result of that course of conduct, he alleges, were various federal and state constitutional violations as well as the commission of a number of torts cognizable under the laws of Pennsylvania. Originally, plaintiff had also asserted claims against two townships and several police officials thereof, but all of the state defendants have now been dismissed, leaving only three FBI agents and the United States as defendants. (See, Order of June 16, 1988, Doc. # 27 and Stipulation of Dismissal of July 22, 1988, Doc. # 30).

 In these motions to dismiss the complaint, the remaining individual defendants contend that they are absolutely immune from personal liability for the state law torts asserted in Counts I thru V and enjoy qualified immunity for the Constitutional claims asserted in Count VI. The United States contends that it is immune from all Constitutional torts alleged and that the discretionary function exception to the Federal Tort Claims Act, 28 U.S.C. § 2680(a), applies, precluding suit against the government for the actions of the FBI agents. Finally, all defendants contend that their conduct is not actionable under the Civil Rights Acts, 42 U.S.C. §§ 1983, 1985(3) and 1986.

 Considering first the individual defendants' claims of absolute immunity, we note that the United States Supreme Court has recently settled a dispute among the Courts of Appeals regarding the scope of immunity available to federal officials for state law torts. In Westfall v. Erwin, 484 U.S. 292, 108 S. Ct. 580, 98 L. Ed. 2d 619 (1988), the Court held that federal officials enjoy absolute immunity only when acting within the scope of their employment and when performing a discretionary function. Applying that two-pronged standard to this case, it is obvious that the FBI agents, in investigating a bank robbery and arresting a suspect, were acting within the scope of their employment. The remaining question, then, is whether they were also performing a discretionary function.

 The same issue, i.e., whether the officers were performing a discretionary function, must also be decided in connection with the plaintiff's claims against the United States under the Federal Tort Claims Act (FTCA). Clearly, the same conduct which this Court concludes is discretionary for purposes of establishing immunity from state law tort claims will likewise be discretionary for purposes of determining whether the United States has waived immunity for the conduct of the FBI agents pursuant to the FTCA.

 To guide our consideration of the discretionary function issue, we turn to Pooler v. United States, 787 F.2d 868, 871 (3d Cir. 1986). There, in discussing law enforcement functions of federal agents, the court noted that,

[The] decision to file complaints . . . . is an a fortiori example of a discretionary function . . . . As one Court notes,
Prosecutorial decisions as to whether, when and against whom to initiate prosecution are quintessential examples of governmental discretion in enforcing the criminal law, and accordingly, courts have uniformly found them to be immune under the discretionary function exception.

 Gray v. Bell, 229 U.S. App. D.C. 176, 712 F.2d 490, 513 (D.C. Cir. 1983) (Remainder of citation omitted).

 According to Pooler, claims based upon an erroneous decision to prosecute a suspect later shown to be innocent of the crime for which he was arrested are not actionable since the officers' decision to arrest and prosecute is a discretionary function of law enforcement officers. As noted previously, this determination applies for purposes of establishing absolute immunity from state tort actions as well as for purposes of the FTCA, the context in which Pooler was decided.

 With respect to the FTCA, however, there is another issue to consider. The intentional tort proviso, 28 U.S.C. § 2680(h), appears to waive sovereign immunity for assault, battery, false imprisonment, false arrest, abuse of process and malicious prosecution when those torts are alleged to have been committed by investigative or law enforcement officials of the United States. Nevertheless, the Pooler court held that a plaintiff may not recover for the acts or omissions of such an officer without first, "Clear[ing] the hurdle of the discretionary function exception". 787 F.2d at 872. In short, according to Pooler, liability cannot attach to an arrest simply because it was erroneous. Even under the intentional tort proviso, the arresting officers are performing a discretionary function when they determine whom to arrest. Consequently, they are subject to liability only when they commit one of the intentional torts enumerated in the statute in the course of making an arrest, executing a search or seizing evidence.

 Applying these legal principles to the facts alleged here, it is clear that the individual defendants are immune from liability for the state law torts alleged because they were acting within the scope of their employment and were performing a discretionary function. With respect to the same torts alleged against the United States under the Federal Tort Claims Act, it is clear that, to the extent that Rourke seeks compensation for having been erroneously arrested and charged due to a flawed investigation, the discretionary function exception precludes the claims against the government in that the manner of conducting an investigation and the decision to seek an arrest warrant are the kind of "quintessentially" discretionary activities for which sovereign immunity has not been waived. To the extent, however, that plaintiff alleges that he was assaulted in the course of being arrested, the government is not protected from liability. Thus, all of ...

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