Metropolitan News-Enterprise


Thursday, May 11, 2006


Page 1


Arraignment Delay Held No Basis for False Imprisonment Suit

Ninth Circuit Panel Also Rejects Retired Police Officer’s Claim of Malicious Prosecution of Gambling Case


By a MetNews Staff Writer


A 44-hour delay in the arraignment of an alleged illegal gambling operator was within the discretion and judgment of the arresting officers, thereby precluding liability for false imprisonment under the Federal Tort Claims Act, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The court affirmed a summary judgment rejecting James Conrad’s suit against the federal government. Conrad, a 26-year veteran of the Fresno Police Department  before taking disability retirement, was  unsuccessfully prosecuted for alleged involvement in illegal gambling operations at the Elbow Room, a  Fresno bar and grill.

Relying on the FTCA, he sued the government and IRS agent Linda Osuna, who was involved in his arrest and arraignment, alleging false imprisonment, malicious prosecution and other claims.

But the same judge who dismissed the criminal case, U.S. District Judge Anthony Ishii of the Eastern District of California, dismissed all of the claims other than for malicious prosecution prior to trial, then rejected the malicious prosecution claim after trying it without a jury.

No Malice

Ishii found that the government acted without malice. Prosecutors and law enforcement officers involved in the case have insisted all along that the prosecution had merit, regardless of Ishii’s ruling in the criminal case that prosecutors could not prove that a conspiracy among five or more people existed for 30 consecutive days as required by federal law.

Conrad’s false imprisonment claim was based on the delay between the time he was arrested and when he was brought before a magistrate judge for arraignment. He claimed he should have been arraigned the same day he was arrested since a magistrate judge was nearby and available.

Conrad was arrested on a Wednesday afternoon, but was not arraigned until the following Friday at 11 a.m. The federal magistrates in Fresno at that time conducted arraignments on Mondays, Wednesdays and Fridays at 11 a.m., and Osuna made no attempt to have Conrad arraigned before the regularly scheduled time.

Senior Judge Alfred Goodwin, writing for the Ninth Circuit, noted that the federal government can only be sued to the extent it has waived its sovereign immunity, and that the FTCA provides such a waiver for certain tortious conduct where, if the U.S. were a private person, it would be liable.

However, the judge pointed out that there is an exception to this waiver where the conduct complained of involves a discretionary function or duty on the part of a federal agency or employee.

Discretionary Function

Conrad argued that the discretionary function exception did not apply because federal rules require that a “person making an arrest within the United States must take the defendant without unnecessary delay before a magistrate judge . . .” Focusing on the word “must,” Conrad argued that no discretion is allowed and that Osuna was required to bring him before a magistrate judge the day he was arraigned.

The judge disagreed, noting that Conrad ignored the language “without unnecessary delay.” Focusing on the word “unnecessary,” the court said that the rule leaves to the agent’s judgment and discretion the decision as to what delay is necessary.

Goodwin wrote:

“There are numerous factors involved in the decision of when to present a suspect to a magistrate judge and no statute, regulation, or policy could adequately predict them all ex ante.”

Noting that Osuna’s decision on when to present Conrad to a magistrate judge conformed with the prevailing local practice, the judge said:

“Her decision . . . balanced Conrad’s rights . . .with such other considerations as the timing of Conrad’s arrest . . . and the fact that magistrate judges must perform a broad, varied, and substantial volume of duties that require time themselves.”

The panel also rejected Conrad’s claim for malicious prosecution.

Under governing California law, Goodwin reasoned, there was probable cause to bring the criminal case, so an essential element of the malicious prosecution claim was missing. While Osuna’s grand jury testimony contained statements that may have been inaccurate, Goodwin explained, the district judge was entitled to find that the agent did not knowingly give false testimony.

The case is Conrad v. United States,. 04-15402.


Copyright 2006, Metropolitan News Company