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October 27, 1982


The opinion of the court was delivered by: SAROKIN

This is an action under the Federal Tort Claims Act for damages sustained by the plaintiff as the result of his being severely injured by gunfire during a bank robbery in which he was one of the principle participants. Plaintiff alleges that the Federal Bureau of Investigation ("FBI") was negligent in that it did not apprehend him earlier for a lesser crime and that it utilized unreasonable and excessive force in apprehending him at the scene of the bank robbery.

 It is very tempting in the face of such a claim to dismiss it summarily on the ground that an armed bank robber should not be permitted to complain of injuries sustained by him, since it is he who put the forces in motion which ultimately resulted in his own injury. But fortunately we live in a country where law enforcement officers are not permitted to act as judge, jury and executioner. They may not use unreasonable or unnecessary force, no matter how serious the offense committed. It is this restriction which differentiates a democracy from a totalitarian state. Although the shooting of a bank robber may not inflame the passions as would that of a teenager in the commission of a minor crime, the same principles of law apply to each. Therefore, although recognizing that it is not a concept which will be met with public acclaim, even a person in the active commission of a crime has certain rights. Such person is not to be subjected to unreasonable, unnecessary or excessive force. Law enforcement officers, on the other hand, are entitled to use such force as is reasonable and necessary under the surrounding circumstances in order to protect themselves and the public and to apprehend the criminal. With those general principles in mind, the court will deal with the facts of this particular case.

 The plaintiff, Vincent Amato and two other persons, John Calarco and Frank Vuono, planned to rob the Wood-Ridge National Bank in Wood-Ridge, New Jersey. They sought the assistance of a well-known merchant in stolen cars, who, in turn, reported the plot to the FBI. From that moment on the FBI knew as much about the plans as the robbers themselves. In fact, rather than permit the informant to go out and actually steal a getaway car, the FBI furnished it.

 In the days leading up to the robbery, the plaintiff and his accomplices were under surveillance and were actually photographed "casing" the bank. Although the getaway car was equipped with a tape recorder and a transmitter, it was of no value to the FBI in the planning stages, because the robbers did not intend to use the getaway car until the day of the actual robbery. Furthermore, the informant refused to wear any secret recording device on his body and only agreed to cooperate upon the condition that his identity would not be revealed and he would not be required to testify.

 The court finds specifically in respect to the assertion that the government was negligent in not arresting plaintiff sooner and for a lesser crime that such contention is totally without merit.

 Firstly, although law enforcement agents have a duty to maintain law and order, how best to fulfill that duty is within the discretion of the officers. Redmond v. United States, 518 F.2d 811, 816-17 (7th Cir. 1975); United States v. Faneca, 332 F.2d 872, 875 (5th Cir. 1964), cert. denied, 380 U.S. 971, 14 L. Ed. 2d 268, 85 S. Ct. 1327 (1965). Decisions such as whether, when and how to prosecute a person are generally considered to be discretionary with the agency. Blessing v. United States, 447 F. Supp. 1160, 1179 n.28 (E.D. Pa. 1978); Bernitsky v. United States, 620 F.2d 948, 955 (3d Cir.) cert. denied, 449 U.S. 870, 66 L. Ed. 2d 90, 101 S. Ct. 208 (1980), (decisions of Mine Enforcement and Safety Administration officers as to investigation and enforcement are discretionary.) As such, these decisions fall within the discretionary function to the Federal Tort Claims Act, 28 U.S.C. § 2680(a) (1965), which exempts from the Tort Claims Act:

(a) Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.

 Blessing v. United States, 447 F. Supp. at 1179 n.28; United States v. Faneca, 332 F.2d at 875; Smith v. United States, 375 F.2d 243, 248 (5th Cir.), cert. denied, 389 U.S. 841, 19 L. Ed. 2d 106, 88 S. Ct. 76 (1967).

 To determine whether decisions fall within the discretionary function exception, courts in this circuit apply a planning-operation distinction. The discretionary exception includes decisions made at the planning level, but not those made at the operational level. Mahler v. United States, 306 F.2d 713, 723 (3d Cir.), cert. denied, 371 U.S. 923, 9 L. Ed. 2d 231, 83 S. Ct. 290 (1962). The basis for the distinction is that planning level decisions generally involve policy considerations. Id. Applying this distinction to the facts of this case, the court finds that the decision of when to arrest the perpetrators and the determination of the plan of arrest to be used are discretionary functions within the meaning of § 2680(a). These decisions occurred at the planning level and involved issues of law enforcement policy. *fn1" Because these decisions have been excepted from the scope of the Federal Tort Claims Act, the doctrine of sovereign immunity operates to deprive this court of jurisdiction over the subject matter of these claims. Gibson v. United States, 457 F.2d 1391, 1392 n.1 (3d Cir. 1972).

  *fn1" The FBI determined that without the testimony of the informant, there was little or no evidence to support a charge of conspiracy. That evidence, if any, could be supplied by the recording devices placed in the getaway car, but that would necessitate a determination of whether there was sufficient evidence while the robbers were already en route to the bank. The FBI determined that the arrest could be effectuated without any danger to the public or the bank employees outside of the bank itself. Arrest for the lesser crimes was rejected because of the paucity of evidence and because the FBI sought to obtain a conviction against the plaintiff which carried a substantial potential penalty because of his extensive criminal record and the danger to society which he presented.

 Even if the court had subject matter jurisdiction over these claims, it finds no abuse of discretion on the part of the defendant. Section 21 of the F.B.I. Manual of Instruction contains some guidelines to be followed by agents in determining when to interrupt a bank robbery. In particular, paragraph 2 provides:

Prime consideration must be given to the safety of innocent bystanders as well as all individuals involved. In this regard, every effort should be made as early as possible to determine when a conspiracy has been committed. Information received and facts developed through investigation should be referred to the USA for his opinion as to whether a conspiracy prosecution may be undertaken. It is more desirable to prevent a robbery, burglary, or larceny by arrest for conspiracy than to endanger the lives of financial institution personnel and other innocent bystanders. Plans for such an operation should include apprehension before the contemplated violators enter the financial institution.

 The testimony at trial indicated that these guidelines were followed in this case, and all proper ...

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