Villafranca v. United States of America No. 08-10920

http://www.ca5.uscourts.gov/opinions/pub/08/08-10920-CV0.wpd.pdf

Per Bar Association of Fifth Circuit summary:

The Fifth Circuit, noting that in Texas the intentional tort of assault is identical to criminal assault, reviewed the Texas Penal Code's "civil privilege defense" to an assault claim in consideration of whether the agents' conduct was privileged. (See TEX. PENAL CODE section 9.51(a) which permits a peace officer's use of justifiable force to make or assist in making an arrest). Plaintiff argued that because the agents' conduct would constitute an assault under Texas law for which a private person would incur lability, the Government should be liable for their agents' assault. The Court resolved the issue by holding that the agents could invoke the Texas statutory privilege. The Court discussed United States v. Olson, 546 U.S. 43 (2005), wherein it was held that state-defined immunity cannot be applied to FTCA analysis, but distinguished section 9.51(a) as a privilege, "that does not immunize state or municipal entities from liability, but rather it privileges the conduct of all peace officers who use reasonable force to effect an arrest." The Court found that the agents conduct here easily satisfied the requirements of section 9.51(a). Likewise, the Court affirmed the District Court's finding that plaintiff's resistance, rather than the agents' negligence, was the sole proximate cause of his injuries under Texas law.