Lorenzo

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO DISMISS

Pending before the Court is Defendant’s motion to dismiss Plaintiffs’ First Amended Complaint (“FAC”). The matter came on for hearing on January 29, 2010. Theresa Bowen appeared on behalf of Plaintiffs, and Cindy Cipriani appeared on behalf of Defendant. For the reasons set forth below, the motion is granted in part and denied in part.

I.

BACKGROUND

On March 26, 2007, Plaintiff Arturo Lorenzo, a Border Patrol agent, was involved in an altercation at the United States border near Calexico, California. During the altercation, an illegal immigrant smuggler picked up a large rock and prepared to throw it at Lorenzo. Lorenzo discharged his rifle, struck the smuggler in the chest and killed him. (FAC, ¶ 14.)

Plaintiffs allege the incident was captured on video by a Remote Video Surveillance System camera. (Id. at ¶ 15.) Plaintiffs allege that unknown employees of the Customs and Border Protection Agency (“CBP”) altered the video to add Lorenzo’s name and rank and seal of the Department of Homeland Security, “enhanced” the incident, and then released the video outside the CBP. (Id. at ¶¶ 17-18.) The video was…