Farag v. United States

MEMORANDUM AND ORDER

TABLE OF CONTENTS

STATEMENT OF THE CASE .443

Facts.443

I. Events at San Diego International Airport.443

II. Events During the Flight.444

III. Events at JFK.446

IV. Events at the Port Authority Police Station.447

The Commencement of the Litigation.448

The Government’s Justification for Its Conduct.448

DISCUSSION.449

Summary Judgment Standards.449

Bivens and FTCA Claims.450

I. Analytical Framework.450

A. Bivens Claims.450

B. FTCA Claims.451

C. Qualified Immunity.452

II. Analysis.452

A. Were Plaintiffs Arrested?.452

1. Show of Force and Restraint of Movement at the Terminal.453

2. The Jailings and Custodial Interrogations.454

3. Duration of the Detentions and Interrogations.455

*442 B. Was There Probable Cause for the Arrests?.457

1. Was There Probable Cause Based on Non-Ethnic Factors Alone? .458

2. Would Consideration of Plaintiffs’ Ethnicity Warrant a Finding of Probable Cause?.460

3. Can Plaintiffs’ Arab Ethnicity Serve as a Probable Cause Factor?.460

C. Are Smith and Plunkett Entitled to Qualified Immunity?.468

Remaining Claims.470

CONCLUSION. .471

On August 22, 2004, weeks away from the third anniversary of 9/11, plaintiffs Tarik Farag (“Farag”) and Amro Elmasry (“Elmasry”), both Arabs, flew from San Diego to New York’s John F. Kennedy Airport (“JFK”) on American Airlines Flight 236. They claim that when they deplaned they were met by at least ten armed police officers in SWAT gear with shotguns and police dogs, ordered to raise their hands, frisked, handcuffed and taken to a police station, where they were placed in jail cells; they were not released until about four hours later, after having been interrogated at length during their imprisonment regarding suspected terrorist surveillance activity aboard the plane. The investigation yielded absolutely no evidence of wrongdoing.

Alleging that they were unlawfully seized and imprisoned, Farag and Elmasry have each brought an action under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), against defendants FBI Special Agent William Ryan Plunkett (“Plunkett”) and New York City Police Department Detective Thomas P. Smith (“Smith”), 1 two counterterrorism agents responsible for plaintiffs’ seizures, detentions and interrogations. Plaintiffs also sue the United States pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671, et seq., for Plunkett’s and Smith’s allegedly tortious conduct. 2 The defendants (collectively, the “Government”) now move for summary judgment on the merits; alternatively, Plunkett and Smith seek summary judgment as to plaintiffs’ Bivens claims on the ground of qualified immunity. Plaintiffs have not cross-moved.

The Government considers this “a case of first impression for the federal courts” because it “presents important questions concerning the scope of legitimate law enforcement activity in response to suspected terrorism-related conduct by passengers on board a domestic commercial aircraft.” Def ts’ Mem. of Law in Support of Mot. for Summ. J. (hereinafter “Gov’t Br.”) at 1. It contends (1) that the agents merely conducted a valid Terry stop when they seized, detained and questioned plaintiffs for approximately four hours, or (2) alternatively, if the Court determines that the agents arrested plaintiffs, that there was probable cause to do so. In either case, the Government “take[s] the position that the Arabic ethnicity of the plaintiffs is and was a relevant factor in the Fourth Amendment analysis.” Tr. of Oral Argument, July 18, 2008, at 13.

*443 The Court rejects the Government’s contention that plaintiffs’ ethnicity can be a factor in determining the validity of plaintiffs’ seizures and detentions, and holds that plaintiffs’ Bivms and FTCA claims survive summary judgment. Further, with respect to the Bivens claims, the Court holds that summary judgment cannot be granted on Smith and Plunkett’s qualified-immunity defense, since there are factual issues to be resolved at a trial.

STATEMENT OF THE CASE

Facts

The facts are taken primarily from the Government’s Rule 56.1 Statement of Undisputed Material Facts (hereinafter “Gov’t Stat.”), which consists largely of plaintiffs’ own deposition testimony describing the relevant events. The Government admits the contents of its Rule 56.1 Statement to be true only for the limited purpose of its motion for summary judgment, and has “reserve[d] the right to dispute the facts” in the event of a trial. Gov’t Stat. at 1, n. 1; see Integrated Waste Servs., Inc. v. Akzo Nobel Salt, Inc., 113 F.3d 296, 298 n. 4 (2d Cir.1996) (“[Defendant] concedes negligence for purposes of its summary judgment motion, while preserving its right to challenge negligence should the case go to trial.”). 3 In footnotes, the Court indicates where plaintiffs, in their responsive Rule 56.1 Statement (hereinafter “PI. Stat.”), take exception to the facts as characterized in the Government’s Rule 56.1 Statement.

The court also takes information from (1) Smith and Plunkett’s contemporaneous incident report; (2) Plunkett’s contemporaneous summary of his interrogation of Elmasry; (3) Smith’s contemporaneous summary of his interrogation of Farag; and (4) the declaration of Dennis Walsh, the pilot of Flight 236 — all of which the Government submitted in support of its summary-judgment motion.

I. Events at San Diego International Airport

Farag and Elmasry, long-time friends, were flying from San Diego International Airport to JFK after vacationing in California. Both were born in Egypt, but Farag, 36, had moved to the United States in 1971 at age five and later became an American citizen. He was a retired New York City police officer, and was then employed by the United States Bureau of Prisons as a corrections officer. Elmasry, 37, was an Egyptian citizen; he was employed in Egypt by General Electric as an area sales manager for its Africa-East Mediterranean region, and had a valid United States visa.

After plaintiffs boarded the plane, they took neighboring but non-adjacent seats: Farag was seated in 17E, a middle seat on the right side of the aisle, and Elmasry was seated in 18A, a window seat on the left side, one row behind Farag. Smith and Plunkett were seated nearby: Smith was in seat 17A, a window seat immediately in front of Elmasry and in the same row as Farag, but on the other side of the aisle, and Plunkett was one seat away in 17C, the aisle seat. The seat between Smith and Plunkett, 17B, was vacant. Plaintiffs did not know that Smith and Plunkett were counterterrorism agents.

Plaintiffs placed their carry-on luggage in the overhead compartments above their respective seats, and, once seated, “talked to each other, over the heads of the other passengers, in a mixture of Arabic and English.” Gov’t Stat. ¶33. 4 While the plane was at the gate, Elmasry entered *444 the aisle and asked Plunkett if he would be willing to shift over one seat to 17B, the center seat, and let Elmasry sit in 17C, the aisle seat. 5 Plunkett declined.

After Elmasry left his seat to speak to Plunkett, a female passenger seated next to Elmasry in 18B had stretched her legs across Elmasry’s seat. After Plunkett refused Elmasry’s request, Elmasry, rather than returning to his seat, asked Smith and Plunkett if he could sit between them, in the vacant seat 17B. Smith and Plunkett agreed. According to the agents’ contemporaneous incident report, Plunkett thought it “unusual that anyone would move from an exit row window seat to an exit row middle seat ... in between two large men,” Incident Report, Ex. C to Perry Deck, at 2, but the report also acknowledges that Elmasry had explained that he wanted to change seats “so he could be ‘close to [his] friend[.]’ ” Id. at 1. 6

Even after Elmasry moved to 17B, he and Farag still “were only able to converse with each other ... over the heads of other passengers.” Gov’t Stat. ¶ 39 (quoting Compl. ¶ 30). Once again, they spoke “in a mixture of Arabic and English,” id., but were now “speaking loudly.” Id. 7 At some unspecified point, Farag fell asleep.

II. Events During the Flight

As the plane took off — as well as at various other times throughout the flight— Smith and Plunkett noticed Elmasry looking at his watch. According to the two agents, Elmasry appeared to be “timing” various events during the flight, such as takeoff, attainment of level flight, and the commencement of the meal service. Id. ¶43. 8

About half an hour after takeoff, Elmas-ry left his seat to go to the lavatory at the rear of the plane. On his way back, El-masry spoke with a flight attendant, asking if there were two adjacent empty seats to which he and Farag might move. 9 El-masry then returned to the seat between Smith and Plunkett and fell asleep. He awoke during the meal service; Farag had *445 already awakened some time earlier. Once the meal had been served and plaintiffs had eaten, the flight attendant with whom Elmasry had spoken approached him in his seat between the agents and “told him that there were two empty seats at the back of the plane for him and Far-ag.” Id. ¶ 47. Elmasry entered the aisle, leaned over to Farag, and spoke a “very short sentence” in a mixture of Arabic and English. Id. Plaintiffs moved to the two seats at the rear of the plane but did not take their carry-on bags with them. 10

About an hour and a half before landing, Smith and Plunkett decided that Farag and Elmasry should be detained and questioned when the plane landed because the agents were concerned that plaintiffs “may be conducting [terrorist] surveillance[ ] or probing operations.” Id. ¶ 63 (quoting Incident Report, Ex. C to Perry Deck, at 2). 11 Plunkett explained to the flight’s captain that “two men of [MJiddle [E]astern descent” were “acting suspicious” in that “they were talking back and forth in Arabic” and that “one of them got up from his assigned seat and sat between [Smith and Plunkett].” Walsh Deck, Ex. E to Occh-iogrosso Aff., at 1. Although the agents “did not feel that these two individuals posed an immediate threat to the flight,” they nonetheless asked the captain to “request! ] a team of officers ... to meet the approaching aircraft at the gate ... and [to inform them] that two [M]iddle [Eastern males will be stopped and questioned about their actions during the flight.” Incident Report, Ex. C to Perry Deck, at 2.

Elmasry and Farag remained at the back of the plane until shortly before landing. After an announcement was made that landing was imminent and the passengers were told to fasten their seat belts, Elmasry returned to seat 17B, between Smith and Plunkett, where he had previously been sitting; Farag sat in Elmasry’s original seat, 18A, directly behind Smith. 12

Once the plane landed, at approximately 11:30 p.m. local time, Smith and Plunkett again saw Elmasry check his watch. The plane took between thirty and forty-five minutes to reach the gate. At some point during that interval, Elmasry took out his cellular phone and paged through his address book, deleting five or six entries. 13 Meanwhile, Farag made two or three *446 “short” calls on his cellular phone; he spoke in English. Gov’t Stat. ¶ 57.

While the plane was taxiing, Smith asked Elmasry, who was seated beside him, where he was from and what he did for a living. Elmasry truthfully told Smith that he was from Egypt, that he was employed by General Electric, and that he was in the United States on vacation. El-masry then asked Smith what he did for a living; Smith falsely told Elmasry that he worked for the delivery company DHL. Elmasry remarked that Smith’s job must involve a lot of traveling; Smith said that it did. Elmasry then told Smith that in his own job, he, too, “[was] always traveling.” Id. ¶ 58.

III. Events at JFK

Once the plane reached the gate, Plunk-ett went to the front of the aircraft; soon thereafter, the passengers began deplaning. According to the agents, “Plaintiffs were detained as they exited the aircraft.” Id. ¶ 68 (citing Incident Report, Ex. C to Perry Deck, at 3.). As Elmasry recalled events, he retrieved his carry-on bag from the overhead bin and began to deplane, with Farag close behind. Smith and Plunkett had already deplaned. Upon exiting the aircraft, Elmasry saw uniformed police officers standing in the jetway. Plunkett was signaling toward him and Farag. One of the uniformed officers took hold of Elmasry and escorted him into the terminal; another officer did the same to Farag. No one pointed a gun at either plaintiff.

According to Farag, on the other hand, after the passengers had begun deplaning, five or six plainclothes Port Authority police officers boarded and identified themselves, speaking in a “conversational tone”; their badges were displayed on their jacket pockets. Id. ¶ 62. 14 The Port Authority officers seized plaintiffs at their seats, grabbing them by their arms; they did not have their guns drawn and did not tell plaintiffs that they were under arrest. The officers asked for plaintiffs’ carry-on bags and escorted them off the aircraft while Smith and Plunkett “were standing there.” Id. Farag does not recall seeing any uniformed police officers until plaintiffs entered the terminal.

Upon entering the terminal, plaintiffs saw a team of uniformed Port Authority police officers (Elmasry remembers ten; Farag, fifteen to twenty) “in SWAT gear”; some had police dogs. Id. ¶ 64. The officers were “carrying shotguns,” but no officer pointed a gun at either plaintiff. Id. According to Farag, these officers formed a “perimeter” around the gate area. Id. Farag and Elmasry were separated and taken to locations thirty-five to forty feet apart. Each was accompanied by two officers (Farag by Smith and Plunkett, and Elmasry by two Port Authority officers); a fifth officer walked back and forth between Farag and Elmasry. While at these two locations, Farag and Elmasry were ordered to raise their hands and were frisked. 15

Smith then began questioning Farag, who provided Smith with identification and told him truthfully that he was a retired New York City police officer and a federal corrections officer employed by the Bureau of Prisons. 16 Farag mentioned to *447 Smith that “after 9/11, when the CIA had c[o]me into the Federal Bureau of Prisons, [Farag’s] supervisors had asked [him] to translate documents, to translate tapes.Id. ¶ 69. He also told Smith that he had “had guns pointed at [him] as a police officer” with the NYPD. Id. Farag explained that during this conversation with Smith he was “[s]cared, frightened, paranoid, [and his] mind was racing[,]” that he was “jittery” and “shaking” and “[his] speech was not calm[,]” and that he was in “a complete sta[t]e of shock” and was “totally confused.” Id. Elmasry, who could see Farag at that time, observed that Farag was “nervous[,]” that he looked agitated and jumpy, and that Farag raised his voice at times. Id. ¶ 68. 17

“At some point thereafter,” the police officers handcuffed Farag and then Elmas-ry. Id. Although Elmasry recalls being handcuffed “approximately fifteen minutes after being brought into the terminal,” id., Plunkett, in his contemporaneous report, stated that plaintiffs were “handcuffed upon exiting the aircraft.” Plunkett Report, Ex. A to Perry Deck, at 1.

During this time in the terminal, none of the officers pointed their guns at plaintiffs, struck them, or called them any derogatory names. Farag testified that “all of the law enforcement officers who were on the scene acted in a professional manner.” Gov’t Stat. ¶ 73.

IV. Events at the Port Authority Police Station

After they were handcuffed, Farag and Elmasry were taken in separate police cars to a Port Authority police station between five and fifteen minutes away. Upon their arrival, they were placed in separate holding cells. Elmasry’s handcuffs were removed as soon as he was placed in the cell; Farag spent “a little while” inside his cell before his handcuffs were removed. Id. ¶ 75.

After thirty to forty-five minutes in his cell, Elmasry was taken to an interrogation room for questioning by Plunkett and a plainclothes Port Authority officer. The questioning lasted approximately two-and-a-half to three hours. “[T]hey would question him for fifteen to twenty minutes, then leave the room for twenty minutes, then question him again, then leave the room, again, several times[,]” id. ¶ 78; “[o]ne time they questioned him for forty-five minutes to one hour.” Id. The Port Authority officer spoke “loudly” and in an “aggressive” manner. Id. ¶ 79. Elmasry was asked not just about his relationship with Farag, his seat changes, his glancing at his watch and his deletion of numbers from his cellular phone, but also about his religious beliefs, items in his luggage, his employment with General Electric, the stamps in his passport and various names and notes in his address book. Plunkett also viewed photographs stored in Elmas-ry’s digital camera. At the end of the questioning, Plunkett told Elmasry that he had not been arrested, but merely “stop[ped] for interrogation.” Id. ¶ 84. Plunkett’s contemporaneous notes state that Elmasry was “cooperative during the entire interview and showed no signs of hostility.” Plunkett Report, Ex. A to Perry Deel., at 1.

Farag remained in his cell for more than an hour. While he waited, Farag asked Smith twice if he could call a lawyer; “Smith said Farag could ... if he wanted to, but did not arrange for him to do so.” Gov’t Stat. ¶ 93. Farag was then removed from his cell; he did not ask again to contact a lawyer. He was taken to an interrogation room where he was ques *448 tioned by Smith for about two hours. He was asked not just about his relationship with Elmasry, their vacation together, and his seat changes on the airplane, but also about his religious practices, his employment background, whether he had any connections with anti-American groups, and whether he “c[ould] get close to the terrorists that [he] translate^] for at the Bureau of Prisons.” Id. ¶¶ 89, 94. Smith also examined photographs on Farag’s digital camera. 18

In their report, the agents wrote that “during their questioning of Farag and Elmasry” they requested various background checks from the FBI, the CIA and the Bureau of Immigration and Customs Enforcement; these background checks confirmed that Farag had indeed been a New York City police officer and was then employed as a corrections officer with the Federal Bureau of Prisons. Id. ¶ 95. The record does not reflect whether these requests were made while plaintiffs were being questioned at the terminal or at some specific time during their jailhouse interrogation; nor does it reflect how long it took to get responses.

Farag and Elmasry were released at approximately 4:00 a.m., about four and a half hours after they had been taken off the plane. At no point during their detentions or interrogations did any officer strike or threaten them; nor did any officer use profanity or ethnic slurs.

The Commencement of the Litigation

Before initiating this action, plaintiffs complied with the administrative prerequisites for suing the United States under the FTCA by duly filing written notices of claim. See 28 U.S.C. § 2401(b). In addition to the United States and Smith, plaintiffs’ complaint named as defendants: (1) the City of New York; (2) the Port Authority of New York and New Jersey; (3) seven Port Authority officers; and (4) “FBI Agent ‘John Doe,’ ” who was in fact Plunkett. Plunkett was not initially served with process.

Thereafter, the United States and Smith certified that Smith, although a New York City police detective, “was acting ... as a deputized federal employee of the Federal Bureau of Investigation’s Joint Terrorism Task Force ... at the time of the conduct alleged in the complaint.” Cert, of Scope of Employment for Thomas P. Smith at 1. Therefore, plaintiffs agreed to the dismissal of their claims against the City of New York. Additionally, the Government stipulated that the actions of the various Port Authority defendants were taken solely at Smith and Plunkett’s direction; consequently, plaintiffs agreed to the dismissal of their claims against the Port Authority and its officers.

Plaintiffs ultimately did serve process on Plunkett; he has appeared and is represented by the U.S. Attorney’s Office, as are Smith and the United States. 19 The Court sua sponte has amended the caption of the complaint to name the United States, Plunkett and Smith as the sole defendants.

The Government’s Justification for Its Conduct

The Government lists the following actions of Farag and Elmasry on the air *449 craft, which, they argue, supported the agents’ “concern that [plaintiffs] may [have been] conducting [terrorist] surveillance or probing operations,” Gov’t Br. at 5, 20 and justified the agents’ seizures, detentions, and interrogations of plaintiffs:

• At the beginning of the flight, despite sitting on opposite sides of the aisle, plaintiffs spoke to each other over the heads of other passengers in a mixture of Arabic and English;

• Elmasry made an allegedly “unusual” initial seat change “from a window seat ... to a middle seat ... between two other male passengers”;

• After Elmasry changed seats, he and Farag talked to each other “loudly” over the heads of other passengers in a mixture of Arabic and English;

• Elmasry looked at his watch when the plane took off, when the plane landed, and at other points during the flight;

• After the meal service, Elmasry “got out of his seat ..., went into the aisle, leaned over to Farag, and spoke a Very short sentence’ to Farag in a mixture of Arabic and English”;

• Immediately thereafter, plaintiffs moved together to the back of the plane, and did not take their carry-on luggage with them;

• Plaintiffs got up to return to the front of the cabin at the very end of the flight, after the “fasten seatbelt” indicator was lit;

• Upon returning to the front of the plane, Farag did not sit in his original seat (17E), but rather, in Elmasry’s original seat (18A), which was located directly behind Smith;

• After the plane landed, Elmasry took out his cellular phone and deleted five or six numbers;

• While the plane was taxiing to the gate, Elmasry told Smith that “he is from Egypt, that he works for GE, and that ‘[his] work is always traveling.’ ”

See Gov’t Br. at 14-16.

The Government lists the following events that took place in the terminal at JFK, after plaintiffs were first detained, as further support for the agents’ actions:

• Farag told Smith that “after 9/11, when the CIA had c[o]me into the Federal Bureau of Prisons, my supervisors had asked me to translate documents, to translate tapes, [and] in fact I did translate tapes”;

• Farag told Smith that “I had guns pointed at me as a police officer”;

• While Farag was telling these things to Smith, Farag was “jittery” and “shaking” and “[his] speech was not calm.” He appeared “nervous” and seemed “jumpy and agitated,” and he raised his voice.

See Gov’t Br. at 25-26.

DISCUSSION

Summary Judgment Standards

A district court must grant summary judgment “whenever it determines that there is no genuine issue of material fact to be tried.” Savino v. City of New York, 331 F.3d 63, 71 (2d Cir.2003) (citing Fed. R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). “A genuine issue of material fact exists ‘if the evidence is such *450 that a reasonable jury could return a verdict for the nonmoving party.’ ” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). The Court must “resolve all ambiguities and draw all factual inferences in favor of the nonmoving party.” Id. (citing Anderson, 477 U.S. at 255, 106 S.Ct. 2505).

In a Bivens action, “it would usually be a jury’s task to decide whether a detention amounted to a de facto arrest, since ‘[t]he issue of precisely when an arrest takes place is a question of fact.’” Oliveira v. Mayer, 23 F.3d 642, 645 (2d Cir.1994) (quoting Posr v. Doherty, 944 F.2d 91, 99 (2d Cir.1991)). Where, however, “there can be but one conclusion as to the verdict that reasonable [jurors] could have reached” as to the existence of a de facto arrest, it is appropriate for a court to decide the question on summary judgment. Id. (quoting Metromedia Co. v. Fugazy, 983 F.2d 350, 359 (2d Cir.1992)) (alteration in Oliveira).

“In order to defeat [a] claim of false arrest on a motion for summary judgment, [the movant-defendant must] show that probable cause existed and that there was ‘no dispute as to the pertinent events and the knowledge of the officers.’ ” Codling v. City of New York, 68 Fed.Appx. 227, 228-29 (2d Cir.2003) (quoting Weyant v. Okst, 101 F.3d 845, 852 (2d Cir.1996)); see also Walczyk v. Rio, 496 F.3d 139, 158 (2d Cir.2007) (“[W]here there is no [material] dispute as to what facts were relied on to demonstrate probable cause, the existence of probable cause is a question of law for the court.” (citations omitted)).

Finally, though the existence of qualified immunity “ordinarily should be decided by the court long before trial[,]” Hunter v. Bryant, 502 U.S. 224, 228, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) (citation omitted), “that is true only in those cases where the facts concerning the availability of the defense are undisputed; otherwise, jury consideration [of the underlying facts] is normally required.” Oliveira, 23 F.3d at 649 (citations omitted).

Bivens and FTCA Claims

I. Analytical Framework

A. Bivens Claims

“[W]here an individual has been deprived of a constitutional right by a federal agent acting under color of federal authority, the individual may bring a so-called Bivens action for damages against that federal agent in an individual capacity....” Lombardi v. Whitman, 485 F.3d 73, 78 (2d Cir.2007) (internal quotation marks and citation omitted). 21 Plaintiffs seek damages under Bivens for what they claim were warrantless arrests without probable cause in violation of the Fourth Amendment. 22

*451 Plaintiffs’ Fourth Amendment rights would, of course, have been violated if they were arrested without “probable cause to believe a crime ha[d] been or [was] being committed.” United States v. Delossantos, 536 F.3d 155, 158 (2d Cir.2008) (citations omitted). But under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and its progeny, Smith and Plunkett could lawfully have conducted a limited detention with only “a reasonable suspicion supported by articulable facts that criminal activity ‘may be afoot[.]’” United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (quoting Terry, 392 U.S. at 30, 88 S.Ct. 1868); see also United States v. McCargo, 464 F.3d 192, 197 (2d Cir.2006) (investigative detention under Terry “requires considerably less of a showing than probable cause.” (citation omitted)). However, even under the “reasonable suspicion” standard, “[an] officer ... must be able to articulate something more than an ‘inchoate and unparticularized suspicion or hunch.’ ” Sokolow, 490 U.S. at 7, 109 S.Ct. 1581 (quoting Terry, 392 U.S. at 27, 88 S.Ct. 1868).

Where the reasonable suspicion standard is met, “[t]he scope of a Terry stop must ... be reasonable....” McCargo, 464 F.3d at 198. Although “the methods police used need not be the least intrusive available[,] ... the police [may not] act[ ] unreasonably in failing to recognize or to pursue [less-intrusive means].” Id. (internal quotation marks and citation omitted); see also Gilles v. Repicky, 511 F.3d 239 (2d Cir.2007) (“[T]he investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short period of time.”) (citation omitted; emphasis added). Thus, even assuming arguendo that Smith and Plunkett had reasonable suspicion to make a Terry stop, if that stop “continue[d] too long or bec[ame] unreasonably intrusive, it ... ripen[ed] into a de facto arrest that [required] probable cause.” United States v. Glover, 957 F.2d 1004, 1011 (2d Cir.1992) (citations omitted).

B. FTCA Claims

Under the FTCA, the United States is liable in money damages for a federal employee’s common-law torts “in the same manner and to the same extent as a private individual under like circumstances ....” 28 U.S.C. § 2674. Plaintiffs’ FTCA claims are based upon their contentions that Smith and Plunkett committed the common-law torts of false arrest and false imprisonment. 23 In suits under the FTCA, “the court [is] to apply the substantive law of the place where the events occurred” — here, New York. Castro v. United States, 34 F.3d 106, 110 (2d Cir.1994).

*452 “[A] plaintiff will prevail on a claim of false arrest under New York law if he can show that the arrest was ... not based on probable cause.... ” Jenkins v. City of New York, 478 F.3d 76, 84 (2d Cir.2007) (citing Broughton v. State, 37 N.Y.2d 451, 456-57, 373 N.Y.S.2d 87, 335 N.E.2d 310 (1975)). 24 The probable-cause standard under New York state law is functionally identical to the analogous standard under the federal Constitution. See Weyant, 101 F.3d at 852. Consequently, the same probable-cause evaluation that drives the Court’s analysis of plaintiffs’ Bivens claims against Smith and Plunkett also drives the Court’s analysis of plaintiffs’ common-law false-arrest claims against the United States pursuant to the FTCA.

C. Qualified Immunity

Even if the Court determines that plaintiffs were arrested without probable cause or subjected to a Terry stop without reasonable suspicion, Smith and Plunkett may be protected from Bivens liability by the defense of qualified immunity, which “shields government officials performing discretionary functions ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Zellner v. Summerlin, 494 F.3d 344, 367 (2d Cir.2007) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)).

The United States, by contrast, may not assert qualified immunity as a defense to plaintiffs’ FTCA claim. See Castro,