ABLES v. STATE (1986)

OPINION

The appeal here is from a summary judgment entered in favor of defendant State of California (defendant).   The action against defendant, brought by five individual plaintiffs, was based on several grievances, allegedly including personal injuries caused by negligence, personal injuries caused by battery, plus deprivation of civil rights under 42 U.S.C. section 1983.   The asserted liability of defendant derives from the fact that the alleged tortious conduct was committed by National Guard MPs, employed by defendant, during a traffic infraction stop they made of a bus in which plaintiffs were riding during the morning commute to the Fort Irwin Military Reservation.

The record indicates that the trial court based its decision on application of section 392 1 of the Military and Veterans Code which the court construed as clothing the National Guardsmen and defendant with absolute immunity from any tort liability for the behavior of the MPs.

In our view, the exculpatory provisions of section 392 are not absolute, and defendant otherwise failed to make a sufficient showing in support of its motion to demonstrate, as a matter of law, that it was entitled to judgment.   Accordingly, the judgment will be reversed.

SYNOPSIS OF TRIAL COURT PROCEEDINGS

In response to plaintiffs' complaint which alleged in detail the negligence and the batteries committed variously on the several plaintiffs, defendant's answer denied all allegations generally per section 431.30 of the Code of Civil Procedure and otherwise pleaded fourteen affirmative defenses.

Of pertinence to the principal issue argued by the parties, as hereinafter discussed, were the third, fourth, fifth, sixth, and seventh defenses.   Because these portions of the pleadings are critical to the task of framing the issues which should have been considered by the trial court in determining the motion for summary judgment, those defenses are here set forth in their entirety.

“THIRD AFFIRMATIVE DEFENSE

“4. At the time and place mentioned in the complaint, and while in the course of their duties as military policemen, defendant's employees observed an automobile occupied and being operated by plaintiffs.   On the basis of their observations, of plaintiffs, and pursuant to the provisions of Penal Code sections 836 and other state and federal provisions, defendant's employees, while in the course of their duties as military policemen, and based upon reasonable cause to believe that plaintiffs had committed a public offense in their presence, to wit, a violation of the provisions of the Vehicle Code and of the Penal Code, placed plaintiffs under arrest.

“FOURTH AFFIRMATIVE DEFENSE

“5. Defendant refers to paragraph 4 of the Third Affirmative Defense herein and incorporates by this reference as though set forth in full.

“6. At the time and place above mentioned, plaintiffs knew or should have known that defendant's employees were military policemen, and that they were attempting to properly and lawfully discharge their duties at the above referred to time.   Plaintiffs willfully resisted, delayed, obstructed, and interfered with defendant's employees in their attempt to properly discharge their duties as military policemen.   In response to plaintiffs' resistance, delays, obstructions, and interference, defendant's employees necessarily and unavoidably employed force against plaintiffs;  however, no more force was used than was reasonably required to overcome plaintiffs' resistance, delays, obstructions, and interference.

“FIFTH AFFIRMATIVE DEFENSE

“7. Defendant refers to paragraph 4 of the Third Affirmative Defense and paragraph 6 of the Fourth Affirmative Defense and incorporates them by this reference as though set forth in full.

“8. At the time above mentioned, plaintiffs assaulted, threatened, and battered defendant's employees and others while defendant's employees were attempting to properly and lawfully discharge their duties as military policemen.   In the face of plaintiffs' assault, attempted battery, and battery, any force employed by defendant's employees was reasonable and unavoidable and not excessive, and no more than necessary for their own defense and for the protection of others.

“SIXTH AFFIRMATIVE DEFENSE

“9. At the time and place alleged in the complaint, defendant's employees were military policemen of the State of California, acting in the course and scope of their employment.   At that time and place, defendant's employees attempted to carry out the duties of their employment.   Plaintiffs, however, their duty to the contrary notwithstanding, threatened and assaulted and would have battered and harmed defendant's employees and third persons.   Defendant's employees then necessarily used reasonable force in which to protect themselves and third parties from such threatened damage or injuries.”

“SEVENTH AFFIRMATIVE DEFENSE

“10. At the time and place alleged in the complaint, defendant's employees were military policemen of the State of California, acting in the course and scope of their employment.   At that time and place, they attempted to and did execute their duties in good faith and without malice toward plaintiffs.   Therefore, defendant's employees cannot be liable for an alleged violation of the Civil Rights Act.

After the case was at issue, defendant caused the depositions of certain of the plaintiffs to be taken.   Thereafter, defendant noticed a motion for summary judgment.   In support of its motion, defendant filed a 14-line declaration subscribed by Randall B. Christison, Deputy Attorney General, the purpose of which was to authenticate portions of the depositions of plaintiffs William E. Ables, Maurice A. Orchard, Tim J. Brennan and Phyllis Holley.

The gist of the legal points and authorities filed in support of the motion can be found in defendant's assertion that “Military and Veterans Code section 392 by its terms holds there is complete immunity on the part of the National Guard while on duty.   This immunity inures to the benefit of the State of California for torts suits brought against it.”   No case authority was cited for this proposition;  although certain text writers were quoted to the same effect.

Plaintiffs' opposition likewise included a less-than-one-page declaration subscribed by Attorney Dan A. McKinney for the purpose of authenticating portions of the depositions of the same four plaintiffs above noted.

Except for the allegation in plaintiff's complaint that the egregious conduct was that of “employees of the State of California serving as military policemen of the California National Guard” who were “acting within the ․ scope of [their] employment,” the factual matter presented to the trial court was derived entirely from depositions of four of the plaintiffs.   From these depositions, we construct a narrative of what happened.

On the morning the questioned conduct of the two MPs occurred, plaintiff Orchard was driving a bus on the Fort Irwin Military Reservation, a bus used to transport civilian workers, including the other plaintiffs on this particular morning, to jobs on the reservation.   The two MPs, on patrol in an MP jeep, having concluded that the bus had committed a violation of the Vehicle Code, turned on the jeep's flashing red light in an attempt to cause the bus to pull off the road and stop.

At that moment, it was impossible for Orchard to pull his bus off the road;  what turned out to be a battalion of about 1200 soldiers was jogging along the side of the road at that point in an unbroken file.   The soldiers, in turn, were flanked by a large drainage ditch running parallel to the roadway, making it impossible for the soldiers to give way to the bus.   Apparently, because of the dilemma then facing him, Orchard lowered his window and shouted to the MPs that he could not pull over, pointing to the soldiers and adding that “There's a place where I can pull off.   Ahead is a place I can pull off.”

The jeep pulled up beside the bus driver's window, the MP in the jeep's passenger seat brandished a cocked pistol at plaintiff Orchard and shouted an obscenity-punctuated order to pull the bus over “right now.”   Again plaintiff Orchard remonstrated, “I can't pull it over here.   Right here, I'm almost there.”   The MP repeated the same obscenity-laced order.   The MP driver of the jeep then performed two side-swiping bumps of the bus in an unsuccessful attempt to force it off the road.   Thereupon, the jeep accelerated, cut in front of the bus, causing the bus to slam into the jeep and come to an abrupt stop.   Because of the abrupt stop plaintiff Holley was thrown forward against the seat ahead with resulting personal injuries.

As soon as the vehicles stopped, the MPs scrambled around the jeep and came to the lower step leading onto the bus.   There, again using vulgar obscenities, they ordered plaintiff Orchard off the bus.   Plaintiff Orchard responded, “Will you watch your language?   I have a lot of ladies on board.”   This enraged the MPs even further.   Each, with cocked pistols in hand, grabbed plaintiff Orchard by both his arms, yanked him down the steps, threw him violently against the hood of the bus, kicking him repeatedly to force him into a spread-eagle position.

Apparently, because the bus had been stopped at a place near where he worked, plaintiff William Ables tried to move down the steps.   One of the MPs shouted an order, again puncuated with a vulgar obscenity, that Ables should get back on the bus.   Ables responded, “All I want to do is go to work.”   Thereupon, the MPs jerked him off the bus and shoved him up against the fender of the bus.   One MP then struck Ables on and about the head with a nightstick.

Another passenger, plaintiff Tim Brennan, then tried to intervene.   This attempt to reason with the MPs resulted in their grabbing him off the bus too and forcing him to join Orchard, draped over the hood of the bus.   Brennan then asked, “Are you going to arrest me?”   One MP responded by choking Brennan with a nightstick and giving him a knee kick in the back.

As earlier indicated, the facts before the trial court, except that the MPs were employed by defendant, were derived entirely from the depositions of plaintiffs, and so in effect there were no contested issues of fact raised by comparing the filings in support of the motion with those in opposition.   The record implies that the trial court, accepting all the facts before it as true, disposed of the motion wholly on legal grounds, despite the wording of the minute order, treating the motion in effect as one for judgment on the pleadings.   The day after hearing the motion, the court caused its minute order to be filed which stated, “No material triable issue of fact exists as to the applicability of Military and Veterans Code Section 392 or as to liability of State of California on any other theory.”   A written order and judgment was later signed and filed reflecting this ruling.   Plaintiffs' appeal followed shortly thereafter.

DISCUSSION

As noted at the outset the appeal here is from a summary judgment.

In Stationers Corp. v. Dun & Bradstreet, Inc., 62 Cal.2d 412, 42 Cal.Rptr. 449, 398 P.2d 785, the Supreme Court said, “The matter to be determined by the trial court in considering such a motion is whether the defendant (or the plaintiff) has presented any facts which give rise to a triable issue.   The court may not pass upon the issue itself.   Summary judgment is proper only if the affidavits in support of the moving party would be sufficient to sustain a judgment in his favor and his opponent does not by affidavit show such facts as may be deemed by the judge hearing the motion sufficient to present a triable issue.   The aim of the procedure is to discover, through the media of affidavits, whether the parties possess evidence requiring the weighing procedures of a trial.”  (Id., at p. 417, 42 Cal.Rptr. 449, 398 P.2d 785.)   The court goes on to say, “[i]n examining the sufficiency of affidavits filed in connection with the motion, the affidavits of the moving party are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion.”  (Ibid.)

Following the guidelines and proscriptions of Stationers, our task at this point is to look solely to the adequacy of the showing made by defendant, the moving party, in support of its motion.  “Adequacy of showing” necessarily requires reference to the issues framed by the pleadings.

While it is true that a moving party's burden on motion for summary judgment is only to negate the existence of triable issues of fact framed by the pleadings (IT Corp. v. Superior Court, 83 Cal.App.3d 443, 451–452, 147 Cal.Rptr. 828), the pleading scenario here is such that, before the foregoing proposition can be applied, a threshold question must be resolved.   That question is “What issues were framed by the pleadings?”   As quoted above, defendant has interposed certain affirmative defenses, which, arguably, would carry the day if proved.   Because there is no replication in California pleading, all allegations of affirmative matter in the answer are deemed controverted.  (Code Civ.Proc., § 431.20(b);  see Witkin, Cal. Procedure (3d ed. 1985) Pleading, § 374, at p. 426.)   As a consequence of this rule, the issues framed by the pleadings included not only those presented by the defendant's denials of the complaint's allegations, but also those presented by denials per operation of law of affirmative matter in the answer.

Assuming that negating all the issues of fact arising with reference to any one of the several affirmative defenses above quoted would have provided a sufficient predicate for granting defendant's motion, defendant's showing actually made in support of the motion, with reference to the affirmative matter in its answer, was wholly nonexistent.   For instance, as for the Third Affirmative Defense, there was absolutely no showing that the MPs had “reasonable cause to believe that plaintiffs had committed a public offense in their presence, to wit, a violation of the provisions of the Vehicle Code and of the Penal Code ․”  As for the Fourth Affirmative Defense, there was absolutely no showing that “plaintiffs willfully resisted, delayed, obstructed, and interfered with defendant's employers in their attempt to properly discharge their duties as military policemen.”   As for the Fifth Affirmative Defense, there was absolutely no showing that “plaintiffs assaulted, threatened, and battered defendant's employees and others while defendant's employees were attempting to properly and lawfully discharge their duties as military policemen.”   As for the Sixth Affirmative Defense, there is absolutely no showing that plaintiffs “threatened and assaulted and would have battered and harmed defendant's employees and third persons,” or that “defendant's employees then necessarily used reasonable force in which to protect themselves and third parties from such threatened damage or injuries.”   As for the Seventh Affirmative Defense, there was absolutely no showing that the MPs “attempted to and did execute their duties in good faith and without malice towards plaintiffs.”

Otherwise, defendant likewise made no evidentiary showing whatsoever in aid of its First, Second, Ninth, Tenth, Eleventh or Twelfth Affirmative Defenses.   The Eighth was in the nature of a general demurrer;  the Thirteenth alleged “defendant State of California is not liable for discretionary decisions”;  and the Fourteenth alleged, “All acts of defendants, if any, occurred in the proper exercise of defendant's police powers.”

It is because of this state of the record that we noted the implication, above stated, that the trial court, in effect, treated the motion as one for judgment on the pleadings and resolved the matter entirely on legal grounds, i.e., by means of its interpretation and application of section 392 of the Military and Veterans Code.   This implication is reinforced by the circumstance that section 392 was nowhere mentioned in the pleadings but was the mainstay of the points and authorities filed in support of the motion.

 Accordingly, in reviewing the propriety of the trial court's ruling, our task resolves itself to a legal determination, accepting all the facts alleged in the complaint and recited in the several depositions as true, of whether a case has been made at this point in the proceedings fixing liability on defendant, thus necessitating a trial.   In our view, it is very clear that a case for liability has been made;  i.e., defendant has made no showing to negate the factual issues on which its liability would otherwise be predicated.

In sum, even construing section 392 of the Military and Veterans Code as strictly as possible, defendant made absolutely no evidentiary showing that the MPs were engaged in the performance of their duties.   Defendant's argument to the trial court and on appeal assumes such performance, but argument alone does not serve to fill the gap resulting from defendant's total failure to offer any evidence by way of declarations from the MPs or otherwise to explain their outrageous, if not demented, conduct, at least as now appears from the record.   In other words, even if defendant's arguments to the trial court and in its brief on appeal are taken as a correct statement of the law, defendant has yet failed to bring itself factually within the scope of the stringent interpretation it places on section 392 of the Military and Veterans Code.   Even resorting to the most lenient speculation, we cannot possibly imagine what performance of military police duties was involved in this brutal terrorizing of utterly helpless civilians.

However, it obviously is not enough at this point in the discussion simply to reverse the judgment, for undoubtedly defendant will again present the trial court with a defense of absolute immunity per section 392.   Consequently, as a guide for use in further proceedings in the trial court, a discussion and interpretation of section 392 is essential to a complete disposition of the appeal.

The position of plaintiff Holley is different from the others, and we shall deal with it first.   Plaintiff Holley is correct that section 17001 of the Vehicle Code creating vicarious liability of public entities for damages resulting from negligent or wrongful operation of a motor vehicle by a public employee overrides and creates an exception to any immunity created in defendant's favor by section 392 of the Military and Veterans Code.   Although section 392 was not directly involved in Brummett v. County of Sacramento, 21 Cal.3d 880, 148 Cal.Rptr. 361, 582 P.2d 952, the reasoning and application of the rule there is persuasive.  Brummett said, “Government Code section 815.2, subdivision (b) states:  ‘Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability.’  (Italics added.)   The question, therefore, is whether liability is ‘otherwise provided’ by statute.   It must be answered in the affirmative.   Vehicle Code section 17001 makes a public entity liable for its employees' negligence in the operation of a motor vehicle.”  (Id., at p. 883, 148 Cal.Rptr. 361, 582 P.2d 952.)   So it is here;  the immunity otherwise present under section 392 must give way to the liability provided for in section 17001 of the Vehicle Code.

As for the other plaintiffs who were the victims of the outrageous brutality committed by defendant's MPs, we see no good reason why defendant's employees here who were purportedly acting as traffic officers should operate under any different rule than defendant's Highway Patrol officers.

 In an analogous situation, if a California Highway Patrol officer were to use unreasonable force in making an arrest, defendant would be liable under respondeat superior principles.  (Scruggs v. Haynes, 252 Cal.App.2d 256, at p. 266, 60 Cal.Rptr. 355.)   This liability is an exception to discretionary immunity of public employees, codified in Government Code section 820.2, of the Tort Claims Act.  (Id., at p. 264, 60 Cal.Rptr. 355.)   However, because a statutory scheme governs defendant's MPs, which specifically addresses personal and governmental immunity and liability (Mil. & Vet. Code), the Tort Claims Act does not control the question of immunities presented here.   Under any theory, however, we reiterate that we can conceive of no valid policy reason for making a distinction between a person working for defendant as a highway patrolman and one working for defendant as a military policeman on traffic patrol.   One might argue for a broader definition of immunity under section 392 in situations where National Guardsmen are engaged in controlling or suppressing riots or other violent civil disobedience, but that is not this case.   Therefore, we hold that the immunity created by section 392 attaches only upon defendant's showing of honest judgment and reasonable behavior by its MPs while acting in the performance of their duties.

We reach this conclusion by the following rationale.   Professor Arvo Van Alstyne, writing for the California Law Revision Commission in 1963, stated:  “Within the meaning of Section 392, ‘members of the militia’ include all members of the National Guard, ․ [¶ ]  The immunity from personal liability granted by Section 392, it will be noted, appears to embrace any kind of tortious injury sustained by any person whatever, provided only that the member of the militia claimed to be responsible for the injury was acting in the performance of his duty in the active service of the State․ [¶ ]  Thus, the immunity granted to members of the militia appears to be all-inclusive, and is in that respect an apparently unique expression of legislative intent.”

However, he failed to note the presence or effect of a second code section, enacted in the same legislative session, which also addresses immunity of militia members.  Military and Veterans Code section 366, enacted at the same time as section 392, reads:  “Whenever any portion of the National Guard, or of the unorganized militia when called into the service of the State or Naval Militia is called into active service to suppress an insurrection or rebellion, to disperse a mob, or in an emergency or in any of the cases provided for in Sections 128, 143, or 146 of this code, or to enforce the execution of the laws of the State or of the United States, the commanding officer shall use his own discretion with respect to the propriety of attacking or firing upon any mob or unlawful assembly, or of attacking or using fire power in the military situation present.   His honest and reasonable judgment in the exercise of his duty shall be full protection, civilly and criminally, for any act or acts done while on duty.”  (Emphasis added.)

In essence, the quoted code section provides for discretionary immunity for a commanding officer, analogous to the discretionary immunity provided to public employees under Government Code section 820.2,² and by its terms covers not only immunity for actions taken in various emergencies, but for actions taken in executing the laws of the state.   This immunity, however, unlike that under section 820.2, is qualified.   It requires an action to be taken pursuant to “honest and reasonable judgment.”   Consequently, to read the prior section 392 as providing absolute immunity for members of the militia, which includes commanding officers, creates contradiction between the statutes in pari materia which properly should be construed harmoniously.  (2A Sutherland, Statutory Construction, § 51.03 p. 469;  Williams v. City of San Carlos (1965) 233 Cal.App.2d 290, 294, 43 Cal.Rptr. 486.)

 We harmonize the two sections in the following way.  Section 392, which speaks of the liability of “members” generally, and for acts done “in the performance of their duty,” appears to be directed at the rank and file, as opposed to the commanding officers of the militia.   So read, the section arguably confers absolute immunity for actions taken under compulsion of a direct order, and, in line with sound military discipline, encourages and protects unquestioning acquiescence to orders, because the section relieves a soldier of liability for improper acts.   However, case law interpreting this section does not allow immunity for acts done under orders the militiaman should reasonably have known to be unlawful.  (Armstrong v. Sengo (1936) 17 Cal.App.2d 300, 61 P.2d 1188.)   Therefore, by our reading, section 366 creates a qualified immunity requiring a showing of “honest and reasonable judgment” for discretionary acts, those not taken pursuant to a direct order, and section 392 creates a qualified immunity for acts under direct order reasonably thought to be lawful.

Because defendant made no showing that the MPs' actions were taken pursuant to honest and reasonable judgment, or pursuant to a direct order reasonably thought to be lawful, as a matter of law the immunity recited by either section never attached.   For this additional reason, the motion for summary judgment was improperly granted.

We note also that Government Code section 816,³ added in 1982, provides for state immunity for injuries caused by National Guardsmen.  (This statute is not applicable to the present case, in which the cause of action arose in 1980.)   This statute was enacted because the Federal Tort Claims Act now waives sovereign immunity for the torts of guardsmen.

The Federal Tort Claims Act would permit suit in a situation such as this, under 28 U.S.C. section 2680 subdivision (h),⁴ which specifically waives federal immunity for assaults, batteries, etc., by investigative or law enforcement officers.   This subsection was enacted in response to Bivens v. Six Unknown Federal Narcotics Agents (1971) 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619, but applies to a broad range of factual situations involving federal employees.   The Senate Report, which appears as legislative history for that amendment, states:  “For years scholars and commentators have contended that the Federal Government should be liable for the tortious acts of its law enforcement officers when they act in bad faith or without legal justification.   However, the Federal Tort Claims Act (28 U.S.C. 2671–2680[)] the embodiment of sovereign immunity in the United States Code, protects the Federal Government from liability where its agents commit intentional torts such as assault and battery.   The injustice of this provision should be manifest—for under the Federal Tort Claims Act a Federal mail truck driver creates direct federal liability if he negligently runs down a citizen on the street but the Federal Government is held harmless if a federal narcotics agent intentionally assaults that same citizen in the course of an illegal ‘no-knock’ raid.

“ ․

“The Committee realizes that under the Federal Tort Claims Act, Government tort liability for intentional conduct is unclear.   For example certain intentional torts such as trespass and invasion of privacy are not always excluded from Federal Tort Claims Act coverage.   Obviously, it is the intent of the Committee that these borderline cases under the present law, such as trespass and invasion of privacy, would be viewed as clearly within the scope of the Federal Tort Claims Act, if the amendment is adopted.

“This whole matter was brought to the attention of the Committee in the context of the Collinsville raids, where the law enforcement abuses involved Fourth Amendment constitutional torts.   Therefore, the Committee amendment would submit the Government to liability whenever its agents act under color of law so as to injure the public through search and seizures that are conducted without warrants or with warrants issued without probable cause.   However, the Committee's amendment should not be viewed as limited to constitutional tort situations but would apply to any case in which a Federal law enforcement agent committed the tort while acting within the scope of his employment or under color of Federal law.”

This section has recently been applied in a situation analogous to the one here, in which Military Police were enforcing state laws.  (Kennedy v. U.S. (D.C.S.C.1984) 585 F.Supp. 1119.)   We find the policy rationale behind the Federal Tort Claims amendments noted to be additional persuasive justification for our interpretation of the statutes in force at the time of this regrettable episode.

DISPOSITION

The judgment is reversed.

FOOTNOTES

FN1. Section 392 of the Military and Veterans Code reads, “Members of the militia in the active service of the State shall not be liable for any act or acts done by them in the performance of their duty.”.  FN1. Section 392 of the Military and Veterans Code reads, “Members of the militia in the active service of the State shall not be liable for any act or acts done by them in the performance of their duty.”

2.   Government Code section 820.2 reads:“Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.”

3.   Government Code section 816 reads:  “A public entity is not liable for injury arising out of any activity conducted by a member of the California National Guard pursuant to Section 316, 502, 503, 504, or 505 of Title 32 of the United States Code and compensated pursuant to the Federal Tort Claims Act.  [¶ ] It is the intent of the Legislature, in enacting this section, to conform state law regarding liability for activities of the National Guard to federal law as expressed in Public Law 97–124.”

4.   Section 1346 reads:  “(a) The district courts shall have original jurisdiction, concurrent with the Court of Claims, of:“․“(b) ․ of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.”Section 2680 reads:“The provisions of this chapter and section 1346(b) of this title shall not apply to—“(h) Any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights:  Provided, That, with regard to acts or omissions of investigative or law enforcement officers of the United States Government, the provisions of this chapter and section 1346(b) of this title shall apply to any claim arising, on or after the date of the enactment of this proviso, out of assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution.   For the purpose of this subsection, ‘investigative or law enforcement officer’ means any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law.”

McDANIEL, Associate Justice.

KAUFMAN, Acting P.J., and TAYLOR, J.*, concur.