UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Lilian Alonzo

v. Civil No. 16-cv-337-JD Opinion No.

United States of America

O R D E R

Lilian Alonzo brought suit against the United States under

the Federal Tort Claims Act,

, et seq.,

(“FTCA”), alleging that an agent of the United States Drug

Enforcement Agency (“DEA”), Michael Connolly, negligently shot

Alonzo while he was searching her home pursuant to a warrant.1

The government moves to dismiss the suit for lack of subject

matter jurisdiction. Alonzo objects.

Standard of Review

In considering a motion to dismiss pursuant to Federal Rule

of Civil Procedure 12(b)(1), the court takes as true the

properly pleaded facts in the complaint and draws reasonable

inferences in the plaintiff’s favor. Reddy v. Foster, --- F.3d

---,

(1st Cir. Jan. 11, 2017). The court

also considers the evidence submitted by the parties. Carroll

1 The government represents that Connolly is now retired. v. United States,

(1st Cir. 2011). The party

asserting federal subject matter jurisdiction, the plaintiff in

this case, bears the burden of showing that it exists.2

Johansen v. United States,

(1st Cir. 2007).

Background

Beginning in October of 2013, the DEA and the Manchester

Police Department were investigating suspected drug trafficking

in Manchester, New Hampshire. The investigation focused on

Sammy Garcia. Garcia was suspected of working with Jose,

Jennifer, and Johanna Nunez.

At that time, Lilian Alonzo lived at 110 Beech Street in

Manchester, New Hampshire, and cared for her children and

grandchildren there. Jose Nunez is Alonzo’s ex-husband, and

Jennifer and Johanna Nunez are her daughters. Based on

intercepted communications, the DEA suspected that proceeds from

drug sales were being stored in Alonzo’s apartment.

The court issued a warrant on August 21, 2014, to conduct a

search of Alonzo’s home, and two other locations, to look for

money from Garcia’s drug operations. DEA special agents,

including Connolly, and Manchester police SWAT team members met

at 6:00 a.m. on August 27, 2014, to make a plan for the search.

2 An action brought under the FTCA is tried to the court without a jury.

.

2 The team knew that on that day Alonzo had at least two

grandchildren in the apartment with her. Alonzo had no criminal

record and was not charged with a crime.

DEA agents, other than Connolly, were to remain on the

perimeter of the building while six team members went to

Alonzo’s apartment on the third floor. Connolly was assigned

the job of “breacher” for the group going into the apartment,

meaning that Connolly would use a battering ram to get through

the front door. When the group arrived, however, Connolly heard

children’s voices in the apartment, so he decided not to use the

battering ram.

Instead, the officers announced their presence, and someone

inside the apartment opened the door. The team members went by

Connolly to “clear” the apartment before the search began. When

a team member was unable to kick in a locked door, Connolly took

over. Connolly held his gun in his left hand while he kicked at

the door. When his foot got stuck in the door and then came

loose, Connolly lost his balance and fell backwards. As he

fell, he accidentally shot his gun.

The bullet struck Alonzo, who was standing in the hall with

her young grandchild. The bullet went through Alonzo’s left

elbow and into her abdomen, which caused blood and tissue to

fall onto the child. Alonzo’s injuries have required multiple

surgeries and rehabilitation.

3 The court held a hearing on the motion on April 12, 2017.

During the hearing, the court heard argument from counsel who

reiterated the positions taken in their papers.

Discussion

Alonzo brings a claim of negligence against the government

under the FTCA, arising from the circumstances in which Connelly

shot her. The government moves to dismiss for lack of subject

matter jurisdiction, on the grounds that Alonzo has not stated a

claim under the FTCA. Alonzo objects to the motion to dismiss.3

A. The FTCA

The FTCA waives the sovereign immunity of the United States

for certain tort claims and grants jurisdiction in the district

courts for those claims. Millbrook v. United States,

(2013). Subject matter jurisdiction to consider

claims under the FTCA exists if a government employee, acting

within the scope of his employment duties, causes injury or loss

“under circumstances where the United States, if a private

person, would be liable to the claimant in accordance with the

law of the place where the act or omission occurred.” 28 U.S.C.

Alonzo noted in her objection that the government appeared 3

to raise official immunity under New Hampshire law without specifically identifying that defense. In its reply, the government explained that it was not raising official immunity for purposes of the motion to dismiss.

4 § 1346(b)(1). To determine whether a private person would be

liable under the circumstances, the court looks for analogous

conduct that would impose liability on a private person. United

States v. Olson,

(2005).

In Olson,

, the Supreme Court reiterated

that “private person,” for purposes of the FTCA, does not mean a

public or governmental entity and that “under like circum-

stances” does not mean the same circumstances. The Court

reviewed its prior decision in Indian Towing Co. v. United

States,

(1955), in which it held that liability

under the FTCA requires “a court to look to the state-law

liability of private entities, not to that of public entities,”

when considering “‘activities which private persons do not

perform.’” Olson,

(quoting Indian Wells,

). The “like circumstances” standard includes

consideration of circumstances that are different from the

actual governmental activity that is questioned. Olson,

.

The circumstances in Indian Towing are instructive. There,

the plaintiff brought suit after its tugboat, pulling a barge,

went aground because a lighthouse, operated by the United States

Coast Guard, was not working.

. The plaintiff

asserted that the Coast Guard’s negligence in maintaining the

lighthouse caused the light to fail and brought suit under the

5 FTCA.

The government argued that because private persons

do not operate lighthouses, no liability existed under the FTCA.

.

The Supreme Court disagreed. The Court explained that the

Coast Guard’s operation of the lighthouse was analogous to a

private person who undertakes to warn the public of danger as a

good Samaritan.

. In undertaking that activity, a

good Samaritan would assume a duty to use due care to make

certain that the light was working.4

In Olson, the plaintiffs, mine workers and a spouse,

brought a claim under the FTCA, “claiming that the negligence of

federal mine inspectors helped bring about a serious accident at

an Arizona mine” where the miners were injured.

.

The government argued that mine inspection would not lead to

liability for a state or municipality and that mine inspection

was a unique government function.

The Court disagreed and

concluded that good Samaritan analogies also existed in the

context of mine inspection, as in the context of private parties

who do safety inspections.

. For that reason,

liability existed under the FTCA.

4 Importantly, the Court did not consider various state and municipal operations, such as road signs and other warnings of dangers, as analogous activities.

6 B. Alonzo’s Claim

In this case, Alonzo alleges that Connolly “had a duty to

conduct the search of Ms. Alonzo’s home with reasonable care

under the circumstances, and to avoid conduct which would place

officers and the home occupants in foreseeable danger of

injury.” Compl. Doc. no. 1, ¶ 30. Alonzo further alleges that

Connolly breached that duty of care when he kicked in the closed

door inside the apartment while holding his loaded gun with his

finger on or near the trigger.5 The government contends that New

Hampshire law does not recognize a duty for law enforcement

officers to use reasonable care while executing a search warrant

during a criminal investigation and that a search conducted by

DEA agents is a uniquely governmental action without a private

analogue.

C. Private Analogue

The government characterizes Alonzo’s claim as alleging

that Connolly negligently executed the search warrant. The

government asserts that no private analogue exists for negligent

execution of a search warrant because only law enforcement

The government is liable under the FTCA for the actions of 5

its employees, “acting within the scope of his office or employment.” § 1346(b)(1). Therefore, the defendant in this case is the government under a theory of vicarious liability.

7 officers can obtain and execute search warrants. See, e.g.,

Washington v. DEA,

(8th Cir. 1999) (concluding

that “the application process for, and execution of, a search

warrant has no private analogue”). In this case, however,

Alonzo does not challenge either the application process or the

execution of the search warrant. Therefore, even if it were

persuasive, the Eighth Circuit’s conclusion in Washington does

not apply in this case.

The Supreme Court has explained that “all Government

activity is inescapably ‘uniquely governmental’ in that it is

performed by the Government.” Indian Towing,

.

Nevertheless, the Court stated, “it is hard to think of any

governmental activity on the ‘operational level’ . . . which is

‘uniquely governmental,’ in the sense that its kind has not at

one time or another been, or could not conceivably be, privately

performed.”

. For that reason, the FTCA “extends to

novel and unprecedented forms of liability.” United States v.

Muniz,

(1963).

In Indian Towing and Olson, the Supreme Court held that

liability under the FTCA was not premised on governmental or

municipal liability for the same or similar activities. Olson,

. Instead, the court must “look to the state-

8 law liability of private entities.”6

. Applying the

rule from Olson and Indian Towing, other courts have found

analogies to actions by private persons for governmental

activities.

In Mayorov v. United States,

(N.D. Ill. 2015), the court considered FTCA claims of negligence

and false imprisonment, arising from an immigration detainer

issued against the plaintiff by ICE officers, and analogized

those claims to negligence by a private security contractor and

a citizen’s arrest. See also Watson v. United States,

(E.D.N.Y. 2015). In Avalos-Palma v. United

States,

, at *12 (D.N.J. July 16, 2014), the

court analogized wrongful deportation by ICE agents to

violations of statutory duties by a private person with

supervisory authority over the plaintiff.

The duty of the Ogala Sioux Tribe Public Safety Commission

in response to a car accident, specifically the officer’s

failure to find the car which had gone off the highway, was

found to be analogous to the duty of a good Samaritan under

6 In Muniz, which involved two consolidated cases, the plaintiffs brought claims under the FTCA to recover for injuries due to the alleged negligence of the medical staff, in one case, and guards, in the other case, at federal prisons.

. The Court found that “an analogous form of liability exists” because states “have allowed prisoners to recover from their jailers for negligently caused injuries” and some states allowed suits against the state itself.

.

9 South Dakota law. White v. United States,

, at

*5-*6 (D.S.D. Sept. 24, 2014). A high speed chase by military

police was found to be analogous to a private claim for

negligent driving. Stroh v. United States,

, at

*6 (D. Colo. Sept. 17, 2012); but see Hetzel v. United States,

(D.C. Cir. 1995) (prior to Olson,

analogizing DEA officer’s high speed chase to law enforcement

activity). Courts have found no private analogue for government

action when the challenged action is quasi-judicial or quasi-

legislative rather than operational. Storms v. United States,

, at *19-*20 (E.D.N.Y. Mar. 16, 2015).

Despite the holding in Olson, the Fifth Circuit analogizes

federal law enforcement activities, such as actions by DEA

agents and Border Patrol officers, to state or municipal law

enforcement officers and applies the rules and defenses that are

applicable to law enforcement officers under state law. See

Mendez v. Poitevent,

(5th Cir. 2016);

Villafranca v. United States,

-64 (5th Cir. 2009).

In the context of FTCA claims arising from the plaintiff’s

detention by immigration officials, the Second Circuit noted

that some courts have drawn an analogy to state law enforcement

officers but found the more appropriate analogy would be to a

private person making a citizen’s arrest, although no final

ruling was necessary in that case because the result was the

10 same under either analogy. Liranzo v. United States,

(2d Cir. 2012). The Eighth Circuit found a private

analogy in negligence for an Indian tribe’s police department

but also noted that the plaintiff did not state a claim even if

the state’s public duty law would apply. Sorace v. United

States,

, 763-64 & n.3 (8th Cir. 2015).

Alonzo contends that a private analogue exists in her case

for a private person who owns guns and is required to use due

care, even in perilous situations. For example, Alonzo

suggests, a private person might attempt to enter a locked room

while holding a gun, because of concern about the danger in the

room, and would be required to use reasonable care in the use of

the gun in that situation.7 Under Olson and Indian Towing, a

7 Analogous circumstances also could arise if a private person suspected that an intruder was in his home and attempted to roust the intruder while holding his gun or if a person accidentally shot another person while in his own house or another person’s house. See, e.g., Citizens Ins. Co. of Am. v. Ung,

(E.D. Pa. 2014) (finding insurance coverage for negligence action against individual who shot another individual); North Carolina Farm Bureau Mut. Ins. Co. v. Lynn,

(N.C. Ct. App. Oct. 18, 2011) (finding insurance coverage for negligence action arising from defendant’s shooting of an individual in his home); Am. Family Mut. Ins. Co. v. Larson,

, at *1 (D. Minn. Apr. 13, 2010); Key v. Burchette,

(N.C. Ct. App. 1999); Fire Ins. Exchange v. Tibi,

(D. Mont. 1995). In addition, private security guards and property managers might be armed to protect themselves or private property. See, e.g., Allen v. Bryers, --- S.W.3d ---,

(Mo. Dec. 20, 2016) (en banc); Hemings v. Redford Lounge, Inc.,

(Ind. Ct. App. 1985).

11 private analogy exists in this case to private individuals using

guns, including in circumstances that are similar to Connolly’s

use of his gun while kicking in a door at Alonzo’s apartment.8

D. Viability of Negligence Claim

Alonzo contends that Connolly owed her a duty to use

reasonable care in handling his gun while conducting the search.

“To recover for negligence, the plaintiff must demonstrate that

the defendant had a duty to the plaintiff, that she breached

that duty, and that the breach proximately caused injury to the

plaintiff.” England v. Brianas,

(2014). In

its motion to dismiss, the government challenges the existence

of a duty in the circumstances of this case.

“A duty exists, under [New Hampshire] common law, to use

reasonable care to avoid foreseeable risks of harm.” Copp v.

Atwood,

, at *2 (D.N.H. Jan. 24, 2005) (citing

Goodwin v. James,

(1991)). When a question

arises as to whether the defendant owed a duty to the plaintiff,

the court must determine “whether the defendant is under any

obligation for the benefit of the particular plaintiff.”

England,

. In other words, the court must

New Hampshire allows private persons to own and carry guns. 8

In fact, New Hampshire citizens are now allowed to carry loaded and concealed guns without a license. See Senate Bill 12, signed by Governor Sununu on Feb. 22, 2017, which repealed RSA 159:4.

12 consider “whether the plaintiff’s interests are entitled to

legal protection against the defendant’s conduct.” Lahm v.

Farrington,

(2014) (internal quotation marks

omitted).

The government asserts, based on Lahm,

,

that Connolly owed no duty to Alonzo because New Hampshire does

not recognize any duty owed by police officers to use reasonable

care in conducting a criminal investigation.9 In support, the

government contends that the interests of law enforcement

officers in conducting their investigations without the

restraints imposed by concerns about liability outweigh any duty

owed to a criminal suspect. Alonzo contends that Lahm does not

limit the duty of police officers to the extent the government

asserts and that Lahm does not apply because liability under the

FTCA is based on analogous actions by private individuals, not

law enforcement officers.

The government’s theory is based on its view of the

particular relationship between Connolly, as a law enforcement

9 The New Hampshire Supreme Court long ago decided that police officers do have a duty to use reasonable care while performing their duties and that police officers are liable for injuries that they negligently inflict on both those they are arresting and innocent third parties. Am. Motorists Ins. Co. v. Rush,

,

(1937). Although the government argues that Am. Motorists was overruled by Lahm, the New Hampshire Supreme Court did not make that ruling explicitly and the facts of the cases do not show that to be true.

13 officer, and Alonzo, as a criminal suspect. As is explained

above, however, Connolly’s actions are analyzed in the context

of an analogous private person rather than as a law enforcement

officer.10 As a result, the analysis of duty owed by law

enforcement in Lahm does not apply here where the court must

look to analogous conduct by a private individual rather than a

law enforcement officer.

In this case, Alonzo and the children in her home had an

interest in being protected from being shot by Connolly while he

handled his gun during the search of their apartment. Connelly

knew that Alonzo and the children were close by and were at risk

if his gun discharged. Therefore, Connolly had a duty to use

reasonable care to avoid the foreseeable risk of accidentally

shooting his gun, which was loaded with his finger on or near

the trigger, while he kicked in a door. Private individuals,

10 The dispute about the appropriate analogy also raises a question of whether state-law affirmative defenses, which apply only to public actors such as law enforcement officers, can be used by the government to avoid liability under the FTCA. The Supreme Court has held that state law immunities cannot limit claims under the FTCA. Muniz,

; Rayonier Inc. v. United States,

(1957). Whether other state law affirmative defenses may be used by the government to avoid liability under the FTCA has been decided differently by the courts that have addressed the question. See, e.g., Fifer v. United States,

(9th Cir. 2016); Mendez,

; Liranzo,

; Begay v. United States,

, at *24–*27 (D.N.M. Sept. 30, 2016); Valdez v. United States,

(W.D. Mich. 2014).

14 when using guns, have a specific duty to use reasonable care to

avoid injury to people, and a higher degree of care is required

when the risk of an accident is considerable. See Webster v.

Seavey,

,

(1927).

As a result, Connolly, whose actions are considered in the

context of an analogous private person, had a duty to use

reasonable care in handling his gun during the search and

neither the holding nor the reasoning in Lahm applies to

Alonzo’s negligence claim in this case.

Conclusion

For the foregoing reasons, the defendant’s motion to

dismiss (document no. 6) is denied.

SO ORDERED.

__________________________ Joseph DiClerico, Jr. United States District Judge

April 24, 2017

cc: Megan E. Douglass, Esq. Andrew K. Lizotte, Esq. H. Jonathan Meyer, Esq.

15