Eugene F. Bevacqua, Plaintiff-appellant, v. United States of America, Defendant-appellee, 39 F.3d 1186 (9th Cir. 1994)

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US Court of Appeals for the Ninth Circuit - 39 F.3d 1186 (9th Cir. 1994)

Argued and Submitted Aug. 2, 1994. Decided Oct. 27, 1994


Before: WRIGHT, KOZINSKI and FERNANDEZ, Circuit Judges.


MEMORANDUM* 

Because it is not as intrusive as a strip search or body cavity search, a pat-down search is considered a routine border search requiring no justification. See United States v. Ramos-Saenz, No. 93-50759, slip op. 12629, 12633-34 (9th Cir. Oct. 14, 1994). The pat-down search here was therefore not a "negligent or wrongful act" in itself, nor did Barnhart use excessive force or deviate from standard customs procedure in performing it. Mem. op. 7-8. If a government employee has not committed a "negligent or wrongful act," there is no liability under the Federal Tort Claims Act. 28 U.S.C. § 1346(b); Laird v. Nelms, 406 U.S. 797, 799 (1972). That being said, we note that the conduct alleged here--customs agents making life unpleasant for railroad personnel in retaliation for failing to repair a noisy train valve--is abusive. Our ruling that it is not tortious should not be read as condoning in any way such conduct on the part of government employees.

AFFIRMED.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3