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November 13, 1992

Hira Patel, Plaintiff,
United States of America, Defendant.


The opinion of the court was delivered by: EDWARD A. INFANTE

I. Nature of the Action

 Plaintiff Hira Patel ("Patel") has sued the United States, under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. Section 1346(b), for property damage and emotional distress damage on a claim of negligence arising out of a Drug Enforcement Administration raid. *fn1" Patel is the owner of certain real property located at 14555 Mount Hamilton Road in San Jose, California. During early 1991, the San Jose Police Department, in cooperation with the United States Drug Enforcement Administration ("DEA"), was investigating the possession for sale of methamphetamine occurring at Patel's property. At all relevant times herein, the property was leased to Gregory Brookins, the person whom the DEA suspected to be a methamphetamine dealer. On March 18, 1991, Judge Edward Nelson of the Municipal Court of the County of Santa Clara issued a search warrant for a daytime or nighttime search of the property.

 On March 19, 1991, at 4:50 a.m., at least ten DEA agents entered the property to serve the search warrant. At least some of the "agents" were actually part of the San Jose Police Department's MERGE unit under the direction of other San Jose police officers who had been deputized as DEA agents. Shortly after arriving at the property, the officers forcibly entered the residence located there. Upon entry, the officers were met with gunfire which immediately resulted in the wounding of one officer. The gunfire from within the house persisted. While being "covered" by other officers who were firing MP-5 submachine guns into the house, one officer delivered at least one, perhaps two, pyrotechnic explosive devices ("PED") into the house, according to copies of police reports submitted as exhibits to defendant's motion. When the PEDs "went off" two officers, still being "covered" by MP-5 submachine gun fire, entered the house and pulled the injured officer to safety.

 Thereafter, a woman and a small child exited the house, followed by a male other than Brookins. The gunfire from within the house continued. In response, the officers introduced non-flammable tear gas projectiles into the house. *fn2" Patel contends that when the officers ran out of non-flammable tear gas projectiles they began firing flammable projectiles and continued doing so until every last available flammable projectile was used even though the house was on fire. The house eventually burned completely to the ground. Mr. Brookins was never seen leaving the house and apparently died in the fire.

 Patel's complaint alleges that, as part of the efforts to serve the warrant, DEA agents fired smoke grenades, tear gas canisters, and percussion/flash grenades into the residence on the property, which directly and proximately caused the complete destruction by fire of the residence located on the property. Patel also alleges that the acts of the DEA agents necessarily involved a risk of serious harm to the property and it was a foreseeable consequence of the activity that the property could be seriously damaged. Patel further alleges that these acts and/or omissions of the DEA agents were negligent. Finally, Patel alleges that as a direct and proximate result of the DEA's activities he has suffered injury to his nervous system and peace of mind, causing him emotional distress.

 II. Motions Before the Court

 Pursuant to Rule 12(b)(1), F.R.Civ.P., defendant moves to dismiss Count II of the complaint for lack of subject matter jurisdiction. Defendant contends that the conduct of which Patel complains is not actionable pursuant to the discretionary function exception to the FTCA, an exception to the United States' waiver of sovereign immunity under the FTCA. 28 U.S.C. Section 2680 (a). Accordingly, defendant argues, the court lacks jurisdiction of the subject matter of the action. Defendant also moves to dismiss plaintiff's claim for emotional distress for failure to state a claim upon which relief may be granted, pursuant to Rule 12(b)(6), F.R.Civ.P.

 III. Defendant's 12(b)(1) motion - The Discretionary Function Exception

 A. Applicable Law

 Under the doctrine of sovereign immunity, The United States is immune from suit unless it consents to be sued. The scope of its consent defines the court's jurisdiction to entertain the suit. United States v. Testan, 424 U.S. 392, 399, 96 S. Ct. 948, 47 L. Ed. 2d 114 (1976). Count II of plaintiff's complaint is brought pursuant to the FTCA, 28 U.S.C. Section 1346(b). The FTCA provides for a limited waiver of the United States' sovereign immunity in lawsuits alleging negligent conduct of a United States employee.

 However, the FTCA also provides for exceptions to that waiver. Those exceptions are enumerated within the statute and include the discretionary function exception, 28 U.S.C. Section 2680 (a), which provides in pertinent part:

 The provision of this chapter and section 1346(b) of this title shall not apply to -- any claim . . . based upon the exercise or performance or 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.

 In a line of cases beginning with Dalehite v. United States, 346 U.S. 15, 73 S. Ct. 956, 97 L. Ed. 1427 (1953), the Supreme Court has repeatedly examined the discretionary function exception. Most recently, in Gaubert v. United States, U.S. , 111 S. Ct. 1267, 113 L. Ed. 2d 660 (1991), the Court reaffirmed its decisions in United States v. S.A. Empresa de Viacao Aerea Rio Grandense ("Varig Airlines"), 467 U.S. 797, 104 S. Ct. 2755, 81 L. Ed. 2d 660 (1984), and Berkovitz v. United States, 486 U.S. 531, 108 S. Ct. 1954, 100 L. Ed. 2d 531 (1988), holding that there are two basic elements to the exception. First, the exception applies to acts that involve an element of ...

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