## Facts

- Luis Hernandez, a U.S. citizen, was arrested by New York City police in September 2013 for public lewdness.
- During booking, the Department of Homeland Security (DHS) issued an immigration detainer based on an alleged outstanding removal order and asked local authorities to hold Hernandez up to 48 hours beyond his otherwise release time.
- At arraignment, the prosecutor modified the disposition recommendation in light of the detainer, resulting in a short jail sentence and nominal bail.
- While detained, Hernandez repeatedly told local correction staff he was a U.S. citizen; staff indicated they could not address the detainer.
- DHS later withdrew the detainer after determining Hernandez had been misidentified and was not the person subject to the removal order; Hernandez was released on October 1, 2013.
- Hernandez sued the United States under the Federal Tort Claims Act (FTCA), asserting state-law tort claims and a damages claim based on an alleged violation of the due process guarantee of the New York Constitution.

## Issues

1. Whether the FTCA’s waiver of sovereign immunity permits claims against the United States for damages premised on violations of a state constitution.
2. Whether a state constitutional tort satisfies the FTCA requirement that the United States be liable only where a private person would be liable under like circumstances under the “law of the place.”

## Decision

- The Second Circuit affirmed dismissal of the FTCA claim insofar as it was based on an alleged violation of the New York Constitution.
- The court held that state constitutional tort claims are not cognizable under the FTCA because they do not fit the statute’s private-person liability benchmark.
- The court relied on a narrow construction of sovereign-immunity waivers and declined to treat state constitutional damages remedies as within the FTCA’s “law of the place” when they operate as public-law claims against government actors.

## Legal Principles

- The FTCA imposes liability on the United States only “under circumstances where the United States, if a private person, would be liable” under the law of the state where the act or omission occurred.
- Claims that exist only against governmental entities or officials, including damages actions grounded in state constitutional provisions, generally lack a private-person analogue and therefore fall outside the FTCA waiver.
- Waivers of sovereign immunity are strictly construed; absent clear congressional authorization, courts will not extend the FTCA to categories of claims that do not align with the statute’s private-person framework.
- For FTCA purposes, “law of the place” is applied in a manner centered on state tort liability that can be imposed on private individuals under similar circumstances.

## Conclusion

The Second Circuit concluded that the FTCA does not allow plaintiffs to recover damages from the United States for alleged violations of a state constitution because such claims typically apply only to government actors and do not satisfy the FTCA’s requirement of an analogous private-person cause of action under state law.


Hernandez v. United States, 939 F.3d 191 (2d Cir. 2019)