18-1103-cv Hernandez v. United States

18‐1103‐cv Hernandez v. United States

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

August Term 2018

(Argued: April 18, 2019 Decided: September 17, 2019)

Docket No. 18‐1103‐cv

LUIS HERNANDEZ,

Plaintiff‐Appellant,

v.

UNITED STATES OF AMERICA AND CITY OF NEW YORK,

Defendants‐Appellees.*

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

Before:

WESLEY and CHIN, Circuit Judges, and Kaplan, District Judge.†

* The Clerk of the Court is directed to amend the caption to conform to the above. † Judge Lewis A. Kaplan, of the United States District Court for the Southern District of New York, sitting by designation. Appeal from a judgment of the United States District Court for the

Southern District of New York (Swain, J.) dismissing, pursuant to Federal Rule of

Civil Procedure 12(b)(6), plaintiff‐appellantʹs claims that he was wrongfully

detained by local authorities pursuant to a federal immigration detainer.

Plaintiff‐appellant is a U.S. citizen who could not have been the subject of a

removal order, and he contends that the United States and the City of New York

violated his rights. The district court concluded that plaintiff‐appellant failed to

plausibly allege claims upon which relief could be granted.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED.

JEFFREY A. ROTHMAN, Law Office of Jeffrey A. Rothman, New York, New York, for Plaintiff‐Appellant.

BRANDON D. WATERMAN, Assistant United States Attorney (Christopher Connolly, Assistant United States Attorney, on the brief), for Geoffrey S. Berman, United States Attorney for the Southern District of New York, New York, New York, for Defendant‐Appellee United States of America.

ERIC LEE, Assistant Corporation Counsel (Richard Dearing, Executive Assistant Corporation Counsel, on the brief), for Georgia M. Pestana, Acting Corporation Counsel of the City of New York, New York, New York, for Defendant‐Appellee City of New York. 2 Omar C. Jadwat, Cody H. Wofsy, and Spencer E. Amdur, American Civil Liberties Union, San Francisco, California and New York, New York; Christopher Dunn, Antony Gemmell, Amy Belsher, New York Civil Liberties Union Foundation, New York, New York; Mark Fleming, National Immigrant Justice Center, Chicago, Illinois, for Amici Curae The American Civil Liberties Union, New York Civil Liberties Union, and National Immigrant Justice Center.

___________

CHIN, Circuit Judge:

On September 27, 2013, plaintiff‐appellant Luis Hernandez was

arrested in Manhattan and charged with public lewdness, a misdemeanor. The

same day, while he was being processed through the New York City Criminal

Court system, the United States Department of Homeland Security (ʺDHSʺ)

lodged an immigration detainer against him, asserting that he was the subject of

an order of removal. Hernandez, however, was born in Brooklyn, and as a U.S.

citizen he could not have been the subject of a removal order. When DHS

realized its error, it withdrew the detainer. In the meantime, Hernandez had

been in custody for four days; he was not released until the detainer was

withdrawn.

3 Hernandez brought this action below against defendants‐appellants

United States (the ʺGovernmentʺ) and the City of New York (the ʺCityʺ), as well

as certain individual federal officers, seeking damages for his wrongful

detention. Hernandez alleges that the Government was liable under the Federal

Torts Claims Act (the ʺFTCAʺ),

et seq., for (1) false arrest and

false imprisonment; (2) abuse of process; (3) violation of his due process rights

under the New York Constitution; and (4) negligence. Hernandez also alleges

that the City was liable under

pursuant to Monell v. Department

of Social Services,

(1978). The Government and the City moved to

dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). The

district court granted the Rule 12(b)(6) motions and denied Hernandez leave to

file a further amended complaint. Hernandez appeals.1

We AFFIRM in part, VACATE in part, and REMAND for further

proceedings consistent with this opinion.

1 Hernandez also asserted constitutional claims against federal immigration officers, including DHS Officer W. Outlaw and unidentified DHS officers. The district court dismissed these claims. As Hernandez does not appeal the dismissal of these claims, they are not before us. 4 STATEMENT OF THE CASE

I. The Facts

For purposes of this appeal, we take as true the facts set forth in the

second amended complaint (the ʺComplaintʺ). See Garcia v. Does,

(2d Cir. 2015).

Hernandez is a U.S. citizen who was born in Brooklyn on July 28,

1974. On Friday, September 27, 2013, he was arrested and charged with public

lewdness, a misdemeanor. The same day, as he was being processed through the

New York City Criminal Court system, DHS Officer Outlaw lodged an

ʺImmigration Detainer ‐ Notice of Actionʺ with the City against Hernandez. J.

Appʹx at 12. 2 The detainer identified the ʺalienʺ as ʺHernandez‐Martinez, Luis

Enrique,ʺ with a date of birth of July 28, 1974, and with a nationality of

ʺHonduras.ʺ Id. at 32; see id. at 30‐31. The detainer requested that the New York

City Department of Corrections (ʺDOCʺ) ʺ[m]aintain custody of [Hernandez] for

a period not to exceed 48 hours, excluding Saturdays, Sundays, and holidays,

2 The record is not clear how Outlaw determined that Hernandez was in New York state custody and why he believed Hernandez was the subject of an order of removal. 5 beyond the time when [Hernandez] would have otherwise been released from

[DOC] custody to allow DHS to take custody of [Hernandez].ʺ J. Appʹx at 32.

At Hernandezʹs arraignment, the Assistant District Attorney (the

ʺADAʺ) initially recommended three days of community service on a plea to the

charge. The judge, however, responded: ʺYou canʹt ask for community service.

He has an [Immigration and Customs Enforcement (ʺICEʺ)] detainer.ʺ J. Appʹx at

13. The ADA then recommended five days of jail and, ʺ[g]iven the ICE detainer,

[the ADA] request[ed] that $1 bail be set.ʺ J. Appʹx at 13. Because of the detainer,

ʺbail was set at the nominal amount of $1.00ʺ so that Hernandez could accrue

ʺtime credit towards any eventual sentence he might . . . receiv[e].ʺ J. Appʹx at

12.

While in custody, Hernandez told various DOC staff members,

including a social worker, two corrections officers, and a doctor, that he was a

U.S. citizen. Each staff member told Hernandez that he or she could not help

him. On Tuesday, October 1, 2013, Outlaw issued a second ʺImmigration

Detainer ‐ Notice of Action,ʺ instructing DOC to cancel the September 27, 2013

detainer. The securing order indicated that Hernandezʹs bail was paid on

October 1, 2013, after the detainer was lifted. Hernandez did not pay the bail

6 himself. The bail was ʺdonatedʺ by someone at DOC in accordance with

customary practice; payment of the $1.00 bail permits a detainee in these

circumstances to be released when there are no longer any detainers in place ‐‐

release is ʺautomaticʺ upon payment of the nominal bail. Id. at 15‐16. Hernandez

was released from custody the same day.

II. Proceedings Below

On August 3, 2016, Hernandez brought this action. On December

14, 2016, Hernandez filed the Complaint. Hernandez asserted claims against the

Government under the FTCA for (1) false arrest and false imprisonment, (2)

abuse of process, (3) violation of due process under the New York Constitution,

and (4) negligence. Hernandez also asserted claims against the City under

for maintaining a policy of acceding to federal immigration

detainers (even when detention is not appropriate) and failing to train its

employees on handling immigration detainers.

On February 20, 2017, the Government and the City moved to

dismiss the Complaint for lack of standing pursuant to Rule 12(b)(1) and failure

to state a claim pursuant to Rule 12(b)(6). On March 13, 2018, the district court

issued an opinion and order dismissing the Complaint and denying leave to

7 amend. The court held that Hernandez sufficiently alleged standing but

dismissed all of Hernandezʹs causes of action against the Government for failure

to state a claim upon which relief can be granted. In addition, the district court

dismissed Hernandezʹs claim against the City as too generalized and conclusory.

Judgment was entered March 14, 2018. This appeal followed.

STANDARD OF REVIEW

We review a district courtʹs grant of a motion to dismiss under

Rule 12(b)(6) de novo. Bldg. Indus. Elec. Contractors Assʹn v. City of New York,

(2d Cir. 2012). ʺTo survive a motion to dismiss, a complaint must

contain sufficient factual matter, accepted as true, to state a claim to relief that is

plausible on its face.ʺ Ashcroft v. Iqbal,

(2009) (internal quotation

marks omitted). ʺ[W]e accept as true all factual allegations and draw from them

all reasonable inferences; but we are not required to credit conclusory allegations

or legal conclusions couched as factual allegations.ʺ Nielsen v. Rabin,

(2d Cir. 2014) (internal quotation marks omitted). ʺAccordingly, ʹthreadbare

recitals of the elements of a cause of action, supported by mere conclusory

statements, do not suffice.ʹʺ

(brackets omitted) (quoting Iqbal,

).

8 DISCUSSION

On appeal, Hernandez argues that the district court erred in

dismissing his tort claims under the FTCA against the Government and his

§ 1983 claim against the City. We hold that the district court erred as to

Hernandezʹs false arrest and false imprisonment claim against the Government

and as to his official policy claim against the City but properly dismissed the

remaining claims.

I. Claims against the Government

Under the FTCA, Congress ʺwaived the sovereign immunity of the

United States for certain torts committed by federal employees.ʺ F.D.I.C. v.

Meyer,

(1994); see

(b). ʺ[T]o be actionable under

[the FTCA], a claim must allege, inter alia, that the United States ʹwould be liable

to the claimantʹ as ʹa private personʹ ʹin accordance with the law of the place

where the act or omission occurred.ʹʺ

at 477 (quoting § 1346(b)). ʺ[T]he source

of substantive liability under the FTCAʺ is the ʺlaw of the State.ʺ Id. at 478. We

therefore look to New York law.

Hernandez asserts claims under the FTCA against the Government

for: (1) false arrest and imprisonment; (2) abuse of process; (3) violation of the

9 due process clause of the New York Constitution; and (4) negligence. We

address each claim in turn.

A. False Arrest and Imprisonment

Under New York law, the elements of a false arrest and false

imprisonment claim are: ʺ(1) the defendant intended to confine the plaintiff, (2)

the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to

the confinement and (4) the confinement was not otherwise privileged.ʺ

McGowan v. United States,

(2d Cir. 2016) (per curiam) (brackets

and internal quotation marks omitted); see Smith v. Cty. of Nassau,

(1974) (listing same elements for false arrest as false imprisonment).3 ʺFor

purposes of the privilege element of a false arrest and imprisonment claim, an act

of confinement is privileged if it stems from a lawful arrest supported by

probable cause.ʺ De Lourdes Torres v. Jones,

(2016); accord

Marshall v. Sullivan,

(2d Cir. 1996). Officers have probable cause

when ʺthey have knowledge or reasonably trustworthy information of facts and

circumstances that are sufficient to warrant a person of reasonable caution in the

3 Although false arrest and false imprisonment are sometimes treated as different torts, the Complaint asserts them as one claim, the parties treat them as one claim, and the elements are substantially the same. See Burgio v. Ince,

(4th Depʹt 2010) (listing same elements for false arrest and false imprisonment). 10 belief that the person to be arrested has committed or is committing a crime.ʺ

Posr v. Court Officer Shield No. 207,

(2d Cir. 1999) (internal

quotation marks omitted).

At issue here are the first and fourth elements: whether Hernandez

sufficiently pleaded that the Government intended to confine him and whether

this confinement was not otherwise privileged.

1. Intent

The Complaint adequately alleges that the Government intended to

confine Hernandez. ʺTo prove intent, a plaintiff must show that the defendant

either: (a) confined or intended to confine the plaintiff or (b) affirmatively

procured or instigated the plaintiffsʹ arrest.ʺ King v. Crossland Sav. Bank,

(2d Cir. 1997). Here, the Government issued the detainer precisely

because ICE wanted to continue Hernandezʹs confinement and intended for him

to be detained, even if he were otherwise to be released. See J. Appʹx at 32

(requesting that DOC ʺ[m]aintain custody of [Hernandez] for a period not to

exceed 48 hours,ʺ excluding Saturdays, Sundays, and holidays (emphasis

removed)); Morales v. Chadbourne,

, 215‐16 (1st Cir. 2015) (ʺ[T]he sole

purpose of a detainer is to request the continued detention of an alien so that ICE

11 officials may assume custody of that alien and investigate whether to initiate

removal proceedings against her.ʺ).4 The Complaint, moreover, plausibly alleges

that the only reason Hernandez was not released at his arraignment was the

issuance of the detainer. For example, the Complaint alleges that ʺ[b]ecause of

the wrongfully issued detainer, [Hernandez] was unable to be released from

custody at his arraignment, which would have otherwise occurred.ʺ J. Appʹx at

12; accord

(ʺBecause of the wrongfully issued detainer, [Hernandez] was also

ineligible at his arraignment for a plea bargain that would otherwise have been

available to him.ʺ).

The Government argues that the City, and not the Government,

confined Hernandez because of his lawful arrest, the imposition of bail, and his

failure to tender the bail. Hernandez, however, alleged that the imposition of

4 Morales involved a U.S. citizen who was arrested on unrelated state criminal charges and then continued in custody because of an immigration detainer lodged against her. 793 F.3d at 212‐13. The plaintiff brought claims under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,

(1971), against the ICE agent who issued the detainer and his supervisors. Both the district court and the First Circuit permitted the plaintiff to proceed with her claims. Id. at 211, 223; see also Galarza v. Szalczyk,

(3d Cir. 2014) (involving a U.S. citizen arrested on unrelated state criminal charges but held after posting bail pursuant to an immigration detainer); Vazquez‐Mentado v. Buitron, No. 5:12‐CV‐0797 LEK/ATB,

, at *7 (N.D.N.Y. May 28, 2013) (finding that officers lacked probable cause to arrest plaintiff, a U.S. citizen who produced a New York State driverʹs license, where officers only had a detainer for an alien of a similar name and the same birthday as plaintiff). 12 bail and his failure to tender the bail were not the reasons the City kept him in

custody. According to the Complaint, ʺ[h]ad there not have been a detainer

lodged against [Hernandez] at his arraignment, he would not have received the

$1.00 bail, but instead would have been released on his own recognizance.ʺ J.

Appʹx at 16. This is clear from the arraignment transcript, which is quoted in the

Complaint. The ADA originally sought only three days of community service

but had to recommend five daysʹ jail because of the detainer. Then, ʺ[g]iven the

ICE detainer, [the ADA] request[ed] that $1 bail be set.ʺ J. Appʹx at 13.

Moreover, the Complaint alleges that bail was set at a ʺnominal

amountʺ as part of a ʺroutine practiceʺ so that Hernandez could ʺreceive time

credit towards any eventual sentence he . . . might receive.ʺ J. Appʹx at 12. And

once the detainer was canceled, it was ʺautomaticʺ that a donation by a DOC

employee would pay Hernandezʹs bail and he would be released. J. Appʹx at 15.

Hence, the Complaint plausibly alleges that bail was imposed only because of the

detainer and that, even if Hernandez had paid the bail, it is a reasonable

inference that he would not have been released as long as the detainer was in

place.

13 A law enforcement officer is ʺresponsible for the natural

consequences of his actions.ʺ Malley v. Briggs,

, 344 n.7 (1986)

(quoting Monroe v. Pape,

(1961)). The natural consequences of

Outlaw issuing the detainer was that Hernandez would be detained for up to 48

hours (or longer, given the intervening weekend). See Morales,

(ʺThe natural consequences of [the ICE agent] issuing the detainer was that [the

subject of the detainer] would be detained up to 48 hours.ʺ). The Government

cannot escape responsibility by shifting the blame to the City for keeping

Hernandez in custody.

2. Privilege

As the Government concedes, DHS must have probable cause to

lodge an immigration detainer.

. A detainer is distinct from the initial

arrest, but it results in the detention ‐‐ or further detention ‐‐ of an individual.

Consequently, as the individual is maintained in custody for a new purpose after

he was otherwise eligible to be released, he is subjected to a new seizure that

must be supported by probable cause. Id.; see also Illinois v. Caballes,

,

407‐08 (2005); Arizona v. United States,

(2012) (ʺ[D]elay[ing] the

release of some detainees for no reason other than to verify their immigration

14 status . . . would raise constitutional concerns.ʺ). Moreover, because it is a

constitutional right to be free from an unreasonable seizure, see U.S. Const.

amend. IV, a reasonable officer must act diligently before lodging a detainer

against an individual and depriving that individual of his or her freedom. See

Dunaway v. New York,

, 214‐15 (1979) (ʺNothing is more clear than

that the Fourth Amendment was meant to prevent wholesale intrusions upon the

personal security of our citizenry, whether these intrusions be termed ʹarrestsʹ or

ʹinvestigatory detentions.ʹʺ (quoting Davis v. Mississippi,

, 726‐27

(1969)).

Here, the Complaint plausibly alleges that the Government lacked

probable cause to lodge the detainer, and therefore Hernandezʹs confinement

was not otherwise privileged. The Complaint alleges that the Government

lacked probable cause because Hernandez was the wrong person: he was not of

Honduran nationality, his middle name was not ʺEnrique,ʺ his last name was not

ʺHernandez‐Martinez,ʺ his name therefore did not match the name on the

detainer, and DHS failed to inquire into whether it was issuing a detainer for the

right person. We agree that these allegations are sufficient to plausibly allege a

lack of probable cause.

15 First, the detainer was issued for a person with a different name. In

some circumstances, that fact alone is sufficient to vitiate probable case. See, e.g.,

Vazquez‐Mentado,

, at *4 (finding no precedent that an officer in

search of ʺJohn Doe, aged forty years and two months, immediately has probable

cause to arrest John Dowe, also aged forty years and two months, after seeing

(and without verifying) Doweʹs accurate, state‐issued identificationʺ); Montoya v.

N.M. Depʹt of Pub. Safety, No. CV 09‐1068 BB/RLP,

, at *7

(D.N.M. Jan. 5, 2011) (ʺA jury could find that [a] . . . name discrepancy would

have vitiated probable cause.ʺ).

Second, because the names did not match, further inquiry was

required. Given the discrepancy in names, a reasonable officer would have

inquired further into whether Hernandez was in fact the person DHS wanted to

detain. Indeed, the applicable immigration statute provides that to issue a

detainer, immigration officers must have ʺreason to believeʺ that an individual is

present in the United States unlawfully.

(d)(1).

Third, the Complaint plausibly alleges that the Government failed to

conduct even a rudimentary inquiry into Hernandezʹs citizenship or identity.

Indeed, Hernandez has alleged that his citizenship was readily ascertainable, and

16 officers ʺmay not disregard facts tending to dissipate probable cause.ʺ United

States v. Pabon,

(2d Cir. 2017) (quoting Bigford v. Taylor,

(5th Cir. 1988)). For example, the Complaint alleges that the

Government could have verified that Hernandez was a U.S. citizen if it had

checked (1) its own records; (2) the DOC Inmate Lookup Service records, which

listed Hernandezʹs nativity as New York; or (3) Hernandezʹs rap sheet from the

New York Division of Criminal Justice Services. See Mitchell v. City of New York,

(2d Cir. 2016) (ʺ[T]he failure to make a further inquiry when a

reasonable person would have done so may be evidence of lack of probable

cause.ʺ (quoting Colon v. City of New York,

(1983)); Manganiello v.

City of New York,

(2d Cir. 2010) (same); Kerman v. City of New

York,

(2d Cir. 2004) (ʺThe officer is not free to disregard plainly

exculpatory evidence.ʺ (internal quotation marks omitted)).5 Therefore,

Hernandez has sufficiently alleged that the Government lacked probable cause to

issue the detainer.

5 Hernandez alleged on information and belief that his rap sheet included his citizenship. Indeed, an Internet search reveals that a New York State Division of Criminal Justice Services rap sheet includes whether an individual is a U.S. citizen. See The New York State Criminal History Record, N.Y. State Div. of Criminal Justice Services (May 30, 2019), www.criminaljustice.ny.gov/ojis/documents/Rap‐Sheet‐Guide.pdf. 17 The Government argues that the similarity in surnames alone is

sufficient to establish probable cause because of the convention in Spanish‐

speaking cultures to shorten surnames composed of the fatherʹs and motherʹs

surnames to the first of the two surnames. Govʹt Br. at 4.

We reject the notion that the purported similarity between ʺLuis

Hernandezʺ and ʺLuis Enrique Hernandez‐Martinezʺ is enough, without more,

to establish probable cause to deprive someone of his freedom. The

Governmentʹs argument that it has probable cause based on the similar names

ʺseems particularly rooted in the context of immigration enforcement and

concerns about the interchangeability of foreign names.ʺ Vazquez‐Mentado v.

Buitron, No. 5:12‐CV‐0797 LEK/ATB,

, at *5 n.7 (N.D.N.Y. May

28, 2013). While names of foreign immigrants may be less familiar to some in the

United States and ʺdistinctions may therefore be more difficult to spot than

variations between certain European or Anglicized names (e.g., John/Jon,

Smith/Smyth, or Eric/Erik), a lack of cultural familiarity does not excuse

disregarding easily confirmable differences.ʺ

(internal citation omitted).

Indeed, ʺ[t]o hold otherwise would suggest that a lower standard of proof/lower

level of investigation might be necessary in the case of individuals with Latin or

18 otherwise non[‐]Anglo names, raising a host of constitutional concerns.ʺ Id.; cf.

United States v. Brignoni‐Ponce,

(1975) (ʺMexican descent . . .

alone [does not] justify . . . a reasonable belief that [petitioners] were aliens.ʺ).

ʺAllowing law enforcement officers to target people based solely on

characteristics such as ethnicity or national origin is to ʹcondone ethnic

harassment.ʺ Zuniga‐Perez v. Sessions,

(2d Cir. 2018) (quoting

Maldonado v. Holder,

(2d Cir. 2014) (Lynch, J., dissenting).

Even assuming that a reasonable agent knew of the naming

convention identified by the Government, the detainer still listed a middle name

for Hernandez‐Martinez (Enrique) whereas, there is nothing in the record to

suggest that Hernandez had a middle name. Additionally, ʺHernandezʺ is a

common surname. In fact, according to amici, it is the eleventh most common

surname in the United States and appears in at least 700 cases on Westlaw. See

Amicus Br. at 2. While ʺ[t]he concept of probable cause leaves room for

mistakes,ʺ there is only room if the ʺmistakes . . . could have been made by a

reasonable officer.ʺ Anderson v. Creighton,

(1987).

Accordingly, we conclude that no reasonable officer would have

issued the detainer in the circumstances alleged here, without conducting an

19 inquiry. And the complaint alleges facts from which one could conclude that a

reasonable inquiry would have revealed that Hernandez was a U.S. citizen who

could not have been subject to an immigration detainer. See BeVier v. Hucal,

(7th Cir. 1986) (holding that an ʺofficer may not close her or his eyes

to facts that would help clarify the circumstances of an arrestʺ).

There was discussion at oral argument to the effect that the dates of

birth were the same. We do not know that to be the case. The Complaint does

not allege that Hernandez had the same date of birth as Luis Enrique Hernandez‐

Martinez. And while the detainer has Hernandezʹs date of birth on it, the record

is unclear whether Outlaw used Hernandezʹs or Hernandez‐Martinezʹs date of

birth in filling out the detainer. A reasonable officer would not have issued the

detainer without an additional data point, such as a verified description of the

individual who was sought,6 the social security number of the individual who

6 See, e.g., Hill v. California,

(1971) (finding probable cause where police had targeted individualʹs ʺaddress and a verified description,ʺ individual was inside locked home of warrant target, and individual ʺfit the description of [the targeted individual] received from various sourcesʺ); Bennett v. City of Yonkers,

(S.D.N.Y. 1994) (finding probable cause where plaintiffʹs name (Lorie Bennett) differed from subject of arrest warrant (Larry Bennett), because plaintiff responded to ʺLarryʺ ‐‐ which was phonetically similar to ʺLorieʺ ‐‐ and met description of subject of arrest warrant); see also Martinez v. City of New York, No. 06 CIV. 5671 (WHP),

, at *3 (S.D.N.Y. June 27, 2008), affʹd, 340 F. Appʹx 700 (2d Cir. 2009) (summary order) (finding probable cause where officers ʺknew that an outstanding warrant 20 was sought,7 or fingerprint verification.8 This would seem particularly true in

the context of ʺthe situation facing [Outlaw] at the time,ʺ Hill,

, that

is, additional verification was readily attainable because Hernandez was already

in police custody. See Morales,

(ʺArguably, it would be easier to

establish probable cause in the case of detainers, because immigration officers

existed for a man who lived in Manhattan with the same first name, last name, middle initial and date of birth as [the plaintiff]ʺ and differences between the plaintiff and the ʺphysical description contained in the [warrant] . . . were . . . too minor to preclude a finding of probable causeʺ). 7 See, e.g., Mendoza v. U.S. Immig. & Customs Enfʹt,

(8th Cir. 2017) (finding probable cause to issue detainer where plaintiffʹs name (Ramon Mendoza‐ Gallegos) partially matched targetʹs name (Ramon Mendoza‐Gutierrez), birthdate perfectly matched targetʹs birthday, and social security number matched targetʹs but for one digit); Morales v. Chadbourne,

(D.R.I. 2017) (finding lack of probable cause because, inter alia, ʺICE directed its agents to check . . . individualʹs social security number if availableʺ in the federal database because social security numbers are ʺunique for each individual and not name dependentʺ and agent failed to do so). 8 See, e.g., Perez‐Ramirez v. Norwood,

(D. Kan. 2018) (finding probable cause where detainer was ʺbased upon the pendency of removal proceedings and upon a biometric confirmation through federal databases that showed he lacked a lawful immigration statusʺ (emphasis added)); People v. Xirum,

(Sup. Ct. 2014) (finding that DOC could detain defendant pursuant to detainer issued after ʺICE confirmed by fingerprint matchʺ that defendant was target of removal order). Moreover, it is at least plausible that ICE had Hernandez‐Martinezʹs fingerprints because a final order of removal existed as to Hernandez‐Martinez. See

(f) (ʺ[T]he Commissioner shall provide for the fingerprinting and photographing of each alien 14 years of age or older against whom a [removal] proceeding is commenced . . . . Such fingerprints and photographs shall be made available to Federal, State, and local law enforcement agencies, upon request.ʺ);

(same). 21 would have easier access to interview and obtain records from an individual

detained in criminal custody.ʺ).9

In a supplemental letter brief, the Government responded to the

failure‐to‐investigate argument by asserting that ʺin the absence of clear evidence

to the contrary, courts presume that [public officers] have properly discharged

their official duties,ʺ Govʹt Letter Br. at 3 (quoting United States v. Armstrong,

(1996), and that ʺ[t]he record here does not provide clear evidence

that government and City officials failed to act properly,ʺ Govʹt Letter Br. at 3‐4.

But we are on review of a motion to dismiss, and the standard is plausibility, not

ʺclear evidence.ʺ

Finally, the Government argues that ʺICE had probable cause to

issue the detainerʺ because the detainer form ʺreflects ICEʹs determination that

Hernandez was subject to ʹan order of deportation or removal from the United

States.ʹʺ Govʹt Letter Br. at 2 (quoting J. Appʹx at 32). This is an entirely circular

argument, as it amounts to the contention that ʺwe had probable cause to issue

the detainer because we said so.ʺ Moreover, the detainer did not show that ICE

9 We acknowledge that if the two individuals in fact had the same date of birth, that would be a strong indication that they were the same person. But the point here is that it is not clear whether the two individuals had the same date of birth. 22 had determined that Hernandez was subject to an order of removal; it showed

only that Hernandez‐Martinez was subject to a removal order.

Accordingly, we conclude that the district court erred in dismissing

Hernandezʹs false arrest and false imprisonment claims.

B. Abuse of Process

The district court dismissed Hernandezʹs abuse of process claim

because Hernandez failed to ʺplead sufficient facts to support an inference that

the Government had an improper purpose in casting [its] net so wide.ʺ J. Appʹx

at 75 (internal quotation marks and brackets omitted). We agree.

To prove abuse of process, plaintiff must show that the defendant

ʺ(1) employs regularly issued legal process to compel performance or

forbearance of some act (2) with intent to do harm without excuse of justification,

and (3) in order to obtain a collateral objective that is outside the legitimate ends

of the process.ʺ Savino v. City of New York,

(2d Cir. 2003). As to

the third prong of this test, ʺto state a claim for abuse of process, a plaintiff must

establish that the defendants had an improper purpose in instigating the actionʺ

and ʺthat they aimed to achieve a collateral purpose beyond or in addition to his

criminal prosecution.ʺ

. ʺ[A] malicious motive alone . . . does not give

23 rise to a cause of action for abuse of process.ʺ

(internal quotation marks and

brackets omitted).

Here, Hernandez fails to allege an improper purpose. The

Complaint contains two allegations regarding Outlawʹs issuance of the detainer:

(1) he did so because of the ʺmere possibilityʺ that Hernandez was the target of

the removal order, and (2) he ʺdid not care . . . whether or not the wrong person

was detained pursuant to the detainer.ʺ J. Appʹx at 19. These allegations speak

to Outlawʹs motive ‐‐ rather than to the purpose of his actions ‐‐ and are thus

insufficient to state an abuse of process claim. See, e.g., Savino,

(allegations that defendants sought to retaliate against plaintiff insufficient to

state abuse of process claim). Accordingly, because Hernandez has failed to

allege that Outlaw ʺattempted to achieve any other collateral purpose beyond

[detaining a removable alien],ʺ Mitchell,

, the district court properly

dismissed this claim.

C. Violation of the New York Constitution

Hernandez contends that the Government violated his due process

rights under the New York Constitution. See N.Y. Const. art. 1, § 6. The district

24 court dismissed this claim, holding that Hernandez could not bring such a claim

under the FTCA as a matter of law. We agree.

The FTCA ʺhas not waived [the Governmentʹs] sovereign immunity

with respect to claims that its employees have committed constitutional tortsʺ

under the federal constitution. Castro v. United States,

(2d Cir.

1994). Hernandez has not put forth any reason to distinguish in this respect

between a due process claim under the federal constitution and a due process

claim under a state constitution. Indeed, ʺNew York courts have interpreted the

due‐process guarantees of the New York Constitution and the United States

Constitution to be coextensive ‐‐ or assumed that they are,ʺ Oneida Indian Nation

of N.Y. v. Madison Cty.,

, 427 n.13 (2d Cir. 2011), and it does not make

sense that Hernandez should be able to pursue a state due process claim when he

cannot pursue a federal due process claim. In fact, several district courts in his

circuit have held that plaintiffs cannot assert FTCA claims for violations of the

New York Constitution. See, e.g., Evans v. Solomon, No. 06‐CV‐3284 SLT LB,

, at *2 (E.D.N.Y. Feb. 15, 2011) (dismissing state constitutional tort

claim brought under the FTCA against a federal officer); Li v. Aponte, No. 05 CIV.

6237 (NRB),

, at *11 (S.D.N.Y. Sept. 16, 2008) (dismissing state

25 constitutional claim brought under FTCA because court was ʺnot persuaded that

the New York state courts would recognize an implied right of action under the

New York constitution against a federal officer.ʺ). We agree with this conclusion.

Even if state constitutional tort claims are cognizable under the

FTCA, Hernandez has still failed to state such a claim. Although the language of

the New York Constitution is slightly different from the language of the federal

constitution,10 ʺ[s]tate involvement in the objected to activityʺ is required for a

due process claim under the New York Constitution. Sharrock v. Dell Buick‐

Cadillac, Inc.,

(1978). Indeed, the New York Court of Appeals

has recognized that ʺthere can be no question that [the drafters] intended the

State Constitution to govern the rights of citizens with respect to their government

and not the rights of private individuals against private individuals.ʺ SHAD All.

v. Smith Haven Mall,

(1985) (emphasis added) (discussing state

action requirement in the context of the New York Constitutionʹs free speech

clause).

10 Compare U.S. Const. amend XIV (ʺ[N]or shall any State deprive any person of life, liberty, or property, without due process of law.ʺ), with N.Y. Const. art. I., § 6 (ʺNo person shall be deprived of life, liberty or property without due process of law.ʺ). 26 Here, Hernandez argues that his due process rights were violated

because Outlaw lodged a detainer against him. Outlaw, however, is only a

federal actor ‐‐ not a state actor. As he was acting under the color of federal law

and not state law, the claim for violation of the New York Constitution fails. See

Hightower v. United States,

, 154 n.4 (S.D.N.Y. 2002) (ʺNew

York State Constitution only permits suits against state actors acting under color

of state law, and not against the federal government or federal employees acting

under federal law.ʺ); cf. Appolon v. United States, No. 16‐CV‐2275 SJ/SMG,

, at *15 (E.D.N.Y. Sept. 6, 2017) (analyzing claim under Georgiaʹs

similarly‐worded due process clause and concluding that ʺ[i]t is clear . . . that a

claim for a due process violation is not cognizable under the FTCA);

(ʺGeorgiaʹs Constitution . . . stat[es] that ʹ[n]o person shall be deprived of life,

liberty, or property except by due process of law.ʹʺ (quoting Ga. Const. art. 1, § 1,

¶ 1)).

Accordingly, we conclude that the district court properly dismissed

Hernandezʹs due process claim under the New York Constitution.

27 D. Negligence

Hernandez alleges that Government is liable for negligence under

the FTCA because it ʺbreached [its] duty to [Hernandez],ʺ and its actions ʺwere a

direct and proximate causeʺ of Hernandezʹs injuries. J. Appʹx at 22. This claim

also fails as a matter of law.

As Hernandez concedes, ʺunder New York law, a plaintiff may not

recover under general negligence principles for a claim that law enforcement

officers failed to exercise the appropriate degree of care in effecting an arrest or

initiating a prosecution.ʺ Watson v. United States,

(2d Cir. 2017)

(brackets omitted) (quoting Bernard v. United States,

(2d Cir.

1994)). Hernandez attempts to circumvent Watson by arguing that we ʺerredʺ in

this decision and that it should now be ʺrectified.ʺ Appellantʹs Br. at 38. We see

no error in Watson, and are, in any event, bound by our precedent. See Lotes Co.

v. Hon Hai Precision Indus. Co.,

(2d Cir. 2014). Hernandezʹs

claim, therefore, is foreclosed as a matter of law, and the district court properly

dismissed this claim.

28 II. Claims against the City

Hernandez sued the City under

, seeking to hold it

liable for the deprivation of his rights under the Fourth and Fourteenth

Amendments pursuant to Monell v. Depʹt of Soc. Servs. of City of New York,

(1978), alleging that (1) the City has an official policy of blindly honoring

federal immigration detainers, that is, of treating federal immigration detainers

as ʺmandatoryʺ and honoring them without ʺengaging in any inquiry,ʺ ʺeven

when put on explicit notice that the detainer was issued in error,ʺ J. Appʹx at 24;

and (2) the City failed to train its officers on the proper handling of immigration

detainers.

A. Applicable Law

Under § 1983, ʺ[e]very person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be

subjected, any citizen of the United States . . . to the deprivation of any rights,

privileges, or immunities secured by the Constitution . . . shall be liable to the

party injured in an action at law.ʺ

. Municipalities are ʺnot

vicariously liable under § 1983 for their employeesʹ actions.ʺ Connick v.

Thompson,

(2011). A municipality, however, may be liable under

29 § 1983 if the plaintiffʹs injury was caused by ʺaction pursuant to official

municipal policy.ʺ Id. at 60‐61. ʺOfficial municipal policy includes the decisions

of a governmentʹs lawmakers, the acts of its policymaking officials, and practices

so persistent and widespread as to practically have the force of law.ʺ Id. at 61.

In ʺlimited circumstances,ʺ a municipality may also be held liable for

its failure to train its employees. Id. To state a failure‐to‐train claim, a plaintiff

must allege that ʺa municipalityʹs failure to train its employees in a relevant

respect . . . amount[ed] to deliberate indifference to the rights of persons with

whom the untrained employees come into contact.ʺ Id. (internal quotation marks

and brackets omitted). ʺDeliberate indifference is a stringent standard of fault.ʺ

Id. (brackets omitted). A municipality is deliberately indifferent where it fails to

act when it has ʺactual or constructive notice,ʺ generally from ʺ[a] pattern of

similar constitutional violations by untrained employees,ʺ that its training

program is deficient.ʺ Id. A plaintiff, therefore, ʺmust demonstrate that the

municipal action was taken with deliberate indifference as to its known or

obvious consequences. A showing of simple or even heightened negligence will

not suffice.ʺ Outlaw v. City of Hartford,

(2d Cir. 2018) (internal

quotations marks and alterations omitted).

30 In addition, ʺfor liability to attach in this circumstance the identified

deficiency in a cityʹs training program must be closely related to the ultimate

injury.ʺ City of Canton v. Harris,

(1989). We focus on the

ʺadequacy of the training program in relation to the tasks the particular officers

must performʺ and ʺ[t]hat a particular officer may be unsatisfactorily trained will

not alone suffice to fasten liability on the city, for the officerʹs shortcomings may

have resulted from factors other than a faulty training program.ʺ

at 390‐91.

Allegations that the injury could have been avoided with ʺbetter or more

trainingʺ are not sufficient.

. The question is whether ʺthe injury

[would] have been avoided had the employee been trained under a program that

was not deficient in the identified respect.ʺ

Finally, a municipality may only be liable ʺwhere its policies are the

moving force behind the constitutional violation.ʺ Connick,

(internal quotation marks omitted). Therefore, ʺthe plaintiff must show a direct

causal link between a municipal policy or custom and the alleged constitutional

deprivation.ʺ

31 B. Application

1. Official Policy

The Complaint alleges that the City has an official policy of blindly

honoring federal immigration detainers. The City argues that such a policy is not

adequately alleged in the Complaint. We disagree. The Complaint alleges that

the Cityʹs policy of acceding to federal immigration detainers was pursuant to

the decisions of the Cityʹs lawmakers; namely, their passage of Local Law 22 of

2013. Moreover, the Complaint alleges that there was a practice of ʺtreating

federal immigration detainers as though they were mandatory,ʺ and honoring

them without inquiry even when circumstances suggested inquiry was

warranted. J. Appʹx at 23.11

At issue here then is whether this alleged policy caused Hernandezʹs

detention. The City argues that it is not liable for Hernandezʹs detention because

(1) his detention was due to his failure to post bail; and (2) the DOC could rely on

the immigration detainer.

11 We note that while federal regulations state that when DHS issues a detainer an ʺagency shall maintain custody of the alien,ʺ

(d), courts have nevertheless interpreted this language to mean that the honoring of detainers ʺ[is] not mandatory.ʺ Galarza,

. 32 a. Failure to post bail

The City argues that it did not violate Hernandezʹs constitutional

rights because Hernandez was detained for his failure to post bail. As discussed

above, however, the Complaint adequately alleges that but for the detainer,

Hernandez would not have been released, even if he had posted bail. See, e.g., J.

Appʹx at 15 (ʺThe release from custody of an inmate with $1.00 in nominal bail is

automatic in circumstances . . . where there are no longer any detainers in place

. . . .ʺ); see also Mercado v. Dallas County,

, 518‐19 (N.D. Tex.

2017), abrogated on other grounds by City of El Cenizo v. Texas,

(5th Cir.

2018) (concluding that allegations of complaint plausibly alleged that ʺDallas

County had a widespread and widely known practice of refusing to release on

bond pretrial detainees with immigration holds, that bond was set for each of the

plaintiffs, and that, despite bond being set, each plaintiff was denied pretrial

release on bond either because (i) he attempted to post bond and it was refused,

or (ii) any attempt to post bond would have been futile due to Dallas Countyʹs

widely known practice of refusing to release on bond pretrial detainees who

were subject to immigration holdsʺ).

33 Accordingly, we conclude that the Complaint plausibly alleges that

but for the detainer, Hernandez would have been released, and that the City

confined him not for his failure to post bail but because of the detainer.

b. Reliance on the immigration detainer

The City also argues that, even if the City detained Hernandez only

because of the detainer, the Complaint fails to state a viable Monell claim because

ʺ[m]unicipal law enforcement officers are permitted to detain a suspect at the

request of federal immigration agents who have probable cause to believe that

the suspect is removable.ʺ City Br. at 17. Moreover, the City argues that there

was probable cause here because the detainer reflected the existence of an order

of removal. We are not persuaded.

The Complaint adequately alleges that the City lacked probable

cause to rely on the detainer. First, the Complaint alleges that the name on the

detainer (Luis Enrique Hernandez‐Martinez) did not match Hernandezʹs name

(Luis Hernandez). As explained above, the name discrepancy alone is arguably

enough to vitiate probable cause, and the Complaint plausibly alleges that a

reasonable officer, whether a court officer, corrections officer, or other City

official, would have conducted further inquiry before continuing to detain

34 Hernandez. See Manganiello,

; Vazquez‐Mentado,

,

at *4.

Second, the City could not blindly rely on the federal detainer in the

circumstances here. The Complaint alleges that Hernandez told multiple DOC

employees that he was a U.S. citizen, and the City could have easily verified his

citizenship by checking (1) the DOC Inmate Lookup Service, which listed his

nativity as ʺNew York,ʺ or (2) his rap sheet, which apparently noted that he was

a U.S. citizen. J. Appʹx at 17‐18, 62; see Pabon,

; Kerman,

. While we do not hold that an officer is required to investigate every claim of

innocence, the City had an independent obligation to verify Hernandezʹs

citizenship in the circumstances here. Where there is a discrepancy in the names

and an individualʹs citizenship can be verified with minimal effort, the City is not

free to ignore a claim of innocence. See Kuehl v. Burtis,

(8th Cir.

1999) (ʺAn officer need not conduct a mini‐trial before making an arrest, but

probable cause does not exist when a minimal further investigation would have

exonerated the suspect.ʺ (internal quotation marks and citations omitted)); see

also Fairley v. Luman,

(9th Cir. 2002) (ʺIn light of the importance

of [defendantʹs] liberty interest, the significant risk of deprivation of that interest

35 through the Cityʹs warrant procedures, and the minimum burden to the City of

instituting readily available procedures for decreasing the risk of erroneous

detention, the procedures afforded by the City to [defendant] failed to provide

him due process under the Fourteenth Amendment.ʺ).

The City argues that ʺunder the collective knowledge doctrine, a

federal immigration officerʹs knowledge of probable cause ʹmay be imputed to

local officials.ʹʺ City Br. at 19 (quoting El Cenizo,

). It argues that

Outlawʹs knowledge should be imputed to the local officials. There can be no

collective knowledge, however, if the initiating officer lacked probable cause ‐‐

i.e., in that event no other officer can rely on the information of the initiating

officer. See, e.g., United States v. Hensley,

(1985) (ʺIf the flyer has

been issued in the absence of a reasonable suspicion, then a stop in the objective

reliance upon it violates the Fourth Amendment.ʺ); Whiteley v. Warden, Wyo. State

Penitentiary,

(1971) (concluding that the Fourth Amendment

was violated where local police conducted a search pursuant to a warrant

obtained by the county sheriff who lacked probable cause).

The collective knowledge doctrine does not help the City because, as

the Complaint plausibly alleges, Outlaw ‐‐ the officer who instigated

36 Hernandezʹs detention ‐‐ lacked probable cause to issue the detainer and he

failed to conduct an inquiry when a reasonable officer in the circumstances

would have inquired. See, e.g., Manganiello,

; Vazquez‐Mentado,

, at *4.

Accordingly, as the Complaint plausibly alleges that the City

refused to release Hernandez because of its policy, and that the City would have

seen that Hernandez was not subject to an immigration detainer if it had

checked, Hernandez plausibly alleges that City policy indeed caused the

deprivation of his rights. See Jones v. Town of E. Haven,

(2d Cir.

2012) (municipality may be liable for actions of its employees if ʺthe deprivation

of the plaintiffʹs rights under federal law is caused by a governmental custom,

policy, or usage of the municipalityʺ (citing Monell, 436 U.S. at 690‐91)).

The City argues that ʺ[m]unicipal law enforcement officers are

permitted to detain a suspect at the request of federal immigration agents who

have probable cause to believe that a suspect is removable.ʺ City Br. at 17. We

have no quarrel with that proposition. But the City cites no authority for the

proposition that it must detain someone in custody, without further inquiry into

37 the existence of probable cause, when circumstances suggest probable cause may

be lacking and verification would require minimal effort.

2. Failure to train

The Complaint alleges that the City failed to train DOC staff (1) ʺon

the procedures, practices, policies, laws, rules, and/or directives governing

immigration holdsʺ; (2) ʺto check the nativity of inmates as to whom purported

immigration detainers are lodgedʺ; and (3) ʺon the procedures, practices, policies,

laws, rules, and/or directives governing the effect, if any, an immigration

detainer has on an inmate and an inmateʹs detention more generally and/or said

inmateʹs right to be released from detention.ʺ J. Appʹx at 25. The district court

dismissed this claim because the Complaint failed to allege that these failures

were endemic or that a pattern of similar constitutional violations existed. We

conclude that Hernandez failed to sufficiently plead a failure‐to‐train claim,

although on different grounds.

As noted above, to plead a failure‐to‐train claim, a plaintiff must

allege that a municipalityʹs failure to train its employees amounted to ʺdeliberate

indifferenceʺ to the rights of individuals with whom the untrained employees

have come into contact. This ʺstringent standard of faultʺ is not met here, where

38 the Complaint alleges that the Cityʹs employees acted not with deliberate

indifference, but because of a purported policy of complying with federal

immigration detainers without question, even when circumstances exist to

question the validity of the detainer. If there is a constitutional violation, it is

because of the Cityʹs policy, not because of the Cityʹs failure to train its

employees. The employersʹ ʺshortcomings,ʺ assuming there were shortcomings,

resulted from factors other than a faulty training program. City of Canton,

. Accordingly, the district court properly dismissed Hernandezʹs

failure‐to‐train claim.

* * *

In defending this appeal, the Government and the City point fingers

at each other. The Government argues that the City was responsible for

Hernandezʹs confinement and the City argues that it continued to detain

Hernandez only because it was complying with the Governmentʹs detainer. The

Complaint, however, has plausibly alleged that both the Government and the

City were at fault, for it plausibly alleges that both failed to make an inquiry

when circumstances warranted an inquiry, and verification could have been

obtained with minimal effort. As a consequence of those failings, Hernandez was

39 deprived of his freedom for four days. See Brignoni‐Ponce,

(ʺThe

Fourth Amendment applies to all seizures of the person, including seizures that

involve only a brief detention short of traditional arrest.ʺ); Dunaway,

(ʺ[D]etention for custodial interrogation ‐‐ regardless of its label ‐‐ intrudes so

severely on interests protected by the Fourth Amendment as necessarily to

trigger the traditional safeguards against illegal arrest.ʺ).

CONCLUSION

For the reasons set forth above, the judgment of the district court is

AFFIRMED IN PART and VACATED IN PART, and the case is REMANDED for further

proceedings consistent with this opinion.

40