I complain often enough—well, often enough for most folks, anyway—and so I’ll start by commending the High Court on another unanimous opinion, and one in which the sole concurrence also nudges the ball forward. Martin v. United States, No. 24-362 (June 12, 2025), does good work.
The issue concerns sovereign immunity and the United States’ waiver thereof. While civil liability against an agent for a Fourth Amendment violation may lie in 42 U.S.C. § 1983 or Bivens, and perhaps also entity supervisory authority liability therefore, the Federal Tort Claims Act (FTCA) might permit a tort action against the United States in the case of the federal agent, as the FTCA waives US sovereign immunity for certain torts committed by federal employees acting within the scope of their employment. In statutory language,
[T]he district courts … shall have exclusive jurisdiction 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.
That sovereign immunity waiver is, however, subject to 13 exceptions, including (1) an intentional-tort exception and (2) a discretionary-function exception.
Intentional-tort exception. The FTCA (28 U.S.C. § 2680(h)) does not waive sovereign immunity for claims of assault, battery, false imprisonment, malicious prosecution, abuse of process, libel, slander, and a few other torts. This exception, however, is itself subject to a law enforcement “proviso” passed after some egregious home entries received Congressional attention:
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.
So, such claims against federal agents executing a search do not fall within the intentional-tort exception, and therefore potentially are within the FTCA’s sovereign immunity waiver. The Eleventh Circuit rather bizarrely applied this law enforcement proviso to other exceptions—meaning not only to the intentional-tort exception where it is textually housed—which the Supremes unanimously reject in Part II of the Martin opinion. So far so good.
Discretionary-function exception. The FTCA does not waive sovereign immunity for any claim based on the exercise of an employee’s “discretionary function” (28 U.S.C. § 2680(a)):
The provisions of this chapter and section 1346(b) of this title [waiving sovereign immunity] shall not apply to … [a]ny claim … based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.
Here the caselaw is a wreck of ambiguity and therefore of lower court disagreement, a problem the Court leaves for another day—because the Eleventh Circuit made a different wrong move the Court could unanimously reject in Part III of its opinion, regarding a Supremacy Clause gloss that made no sense. Interpretation of this discretionary function exception is certainly an important issue, and so the wait for full briefing is probably wise. Still, as urged by Justices Sotomayor and Jackson in concurrence, this exception seems to go to an action made for reasons of public policy. And if that’s right, then claims based upon an officer negligently raiding the wrong home (read the street sign and mailbox, please!) would not fall within this exception to the sovereign immunity waiver, just like claims against an officer driving negligently would not fall within this exception. There is nothing regarding public policy in simply performing one’s job in a grossly negligent manner.
So, while we have to await remand (and ultimately further SC word) for the specifics of the discretionary-function exception to FTCA sovereign immunity waiver… reading the tea leaves, a claim against the United States based upon federal agents’ egregiously sloppy search of the wrong home—and therefore upon what would be state-law assault, battery, etcetera were those federal agents private persons in that jurisdiction—should be available under the FTCA. And that seems normatively correct and textually right.
Thus, again, I’m ‘thumbs up’ on Martin. Any dissenters?
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