The Complexities of Suing the United States — Martin v. United States
The Complexities of Suing the United States – Martin v. United States
The doctrine of sovereign immunity – which provides that the government cannot be sued without its express permission – dominates over the field of litigating civil suits against the government. As Justice Holmes famously noted in Rock Island, Arkansas & Louisiana Railroad Company v. United States, 254 U.S. 141, 143 (1920), “[m]en must turn square corners when they deal with the government. If it attaches even purely formal conditions to its consent to be sued, those conditions must be complied with. Lex non praecipit inutilia [the law commands not useless things] expresses rather an ideal than an accomplished fact.” In that vein, the Federal Tort Claims Act waives sovereign immunity and allows lawsuits against the U.S. government for damages caused by the negligent or wrongful acts of federal employees acting within the scope of their employment – subject, however, to a number of exceptions, limitations, and requirements or, as Justice Holmes put it, the need to “turn square corners.”
On October 18, 2017, in the early morning hours, an FBI SWAT team raided the wrong home in a suburban Atlanta neighborhood by smashing open the home’s front door and detonating a flash-bang grenade. Fearing a home invasion, the occupants of the residence hid in a closet. Upon finding the terrified couple, agents dragged the man from the closet, threw him to the floor, handcuffed him, and began to interrogate him, meanwhile, another agent held his petrified, half-naked companion at gunpoint. Only when a third agent happened upon some mail was it realized that they had raided the wrong home. Once the agents departed, the couple was left to contend with their injuries and property damage, without having received much by way of explanation, and without having received anything by way of compensation. Understandably, the couple sued the United States under the Federal Tort Claims Act, alleging negligence and intentional torts by the agents.
The Federal Tort Claims Act waives sovereign immunity for certain torts committed by government employees acting within the scope of their employment – subject, however, to 13 exceptions that restore sovereign immunity, but only in certain circumstances. Two of those exceptions (the discretionary function exception and the intentional tort exception) are frequently implicated in suits alleging police misconduct. The intentional tort exception restores sovereign immunity when it comes to allegations in the nature of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights, while the discretionary function exception bars any claim based on the exercise of any official’s discretionary function. However, as to investigative or law enforcement officers, the intentional tort exception is subject to a limitation – sometimes referred to as the ‘law enforcement proviso’ – whereby the Act’s waiver of sovereign immunity would apply, and any claim arising out of assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution would be allowed to proceed if brought against an investigative or law enforcement officer.
Unlike other federal appellate courts, the Court of Appeals for the Eleventh Circuit had taken the view in a number of cases, including in this case, that the intentional torts exception pertaining to investigative and law enforcement officers – that is, the ‘law enforcement proviso’ – had the effect of overriding all exemptions listed in that particular section of the federal code – including the discretionary function exception. Additionally, the Eleventh Circuit’s jurisprudence in this domain had another unique feature. Whereas in other federal appellate courts, a plaintiff would prevail in a lawsuit under the Act if it could be shown that a private individual under like circumstances would be liable under the law of the place where the government employee’s wrongful act or omission had occurred, the Eleventh Circuit would permit the government to plead an affirmative defense under the Constitution’s Supremacy Clause which would defeat any plaintiff’s claim whenever a law enforcement officer’s contested actions could be found to bear some nexus with furthering federal policy, and could be reasonably be characterized as complying with the full range of federal law.
In applying its rather unique patchwork of standards (exceedingly plaintiff-friendly on the one hand, and overly defense-friendly on the other), the Eleventh Circuit oddly concluded that the ‘law enforcement proviso’ somehow spared the plaintiffs’ intentional tort claims from both the intentional tort and discretionary function exceptions. While endorsing the dismissal of plaintiffs’ negligence claims under the discretionary function exception under the rationale that the lead agent (whose earlier mistakes had caused the SWAT team to target the wrong home) “enjoyed discretion in how he prepared for the warrant execution,” the Eleventh Circuit found, as to the plaintiffs’ intentional tort claims, that the government should prevail based on its Supremacy Clause defense. As a result of all this, the Supreme Court “agreed to take this case to examine the distinctive features of the Eleventh Circuit’s approach—namely (1) whether the law enforcement proviso overrides not just the intentional-tort exception but also the discretionary-function exception, and (2) whether the Supremacy Clause affords the United States a defense in FTCA suits.”
The Supreme Court, in a unanimous decision, answered both questions in the negative. As to the first, the Court noted that given that Section 1346(b) of Title 28 waives the federal government’s sovereign immunity, subject to a list of 13 exceptions that are enumerated in Section in Section 2680 (lettered (a) through (n), with one letter unused), instead of setting the ‘law enforcement proviso’ apart as a discrete provision at the end of that list, Congress embedded it into subsection (h)’s intentional-tort exception – indeed, it is part of the same sentence. For that reason, the Supreme Court easily concluded that, “[g]iven that arrangement, an ordinary reader would naturally presume that the proviso modifies only subsection (h).”
As to the surprising notion that there would exist a Supremacy Clause defense to defeat claims brought under a federal law, in this case, the Federal Tort Claims Act – in the Supreme Court, the government conceded that it enjoys no such defense, which caused the Supreme Court to appoint an attorney (a former law clerk for Justice Thomas) to serve as an amicus in order to “represent the Eleventh Circuit’s views.” It is, of course, unclear why the Court found it necessary to appoint an amicus given how quickly and easily it found “the government’s concession [to be] commendable and correct,” in that “[t]he Supremacy Clause supplies a rule of decision when federal and state laws conflict” and given that the Federal Tort Claims Act “is the ‘supreme’ federal law addressing the United States’ liability for torts committed by its agents [] and supplies the ‘exclusive remedy’ for damages claims arising out of federal employees’ official conduct.” (emphasis added).
In the end, the Court remanded the case to the lower courts by reversing the Eleventh Circuit’s determinations and concluding: (1) that there is no Supremacy Clause defense in cases brought under federal law – to wit, the Federal Tort Claims Act; and, (2) that the plaintiffs’ intentional tort claims survive their encounter with §2680(d) due to the ‘law enforcement proviso’, however, contrary to the Eleventh Circuit’s approach, on remand, it must be considered whether subsection (a)’s discretionary-function exception bars either the plaintiffs’ negligent or intentional tort claims.
As to the evaluation (or, reevaluation, as it were) of the plaintiffs’ negligence claim vis-à-vis the discretionary act function. Justice Sotomayor, joined by Justice Jackson, wrote a concurring opinion to urge a particular approach in the lower courts’ evaluation in this regard on remand. The concurring opinion did not let it go without mention that the negligence that has been alleged to have caused the mistaken entry into the home in this case – which needlessly terrorized and injured its occupants while damaging their property – did not involve the kind of discretionary policy judgments that this statutory exception was intended to shield and protect. Namely, the lead SWAT agent’s preparation in advance of the execution of the search and arrest warrants at 3741 Landau Lane, and his subsequent “decision” to mistakenly raid of the plaintiffs’ home at 3756 Denville Trace, included the agent’s allegedly negligent choice to use his personal GPS and his failure to check the street sign, or house number on the mailbox, before smashing the plaintiffs’ door, detonating a flash-bang grenade inside, and violently accosting the home’s occupants, with guns drawn, under the mistaken view that they were the subjects of an investigation who lived in another house, on another street, and that presumably bore the physical characteristics of a different person.
