"Wrong-house" raids by law enforcement can cause terror and physical injury, significant property damage, and potentially innocent civilian deaths. Suits for damages almost always follow. In Martin v. U.S., the Supreme Court unanimously set the Eleventh Circuit back into step with its sister circuits, rejecting that court's outlier readings of the Federal Tort Claims Act (FTCA) and the Constitution's Supremacy Clause—interpretations that helped plaintiffs at the initial stage of an FTCA suit against government agents but hindered their ultimate ability to prevail.
A Pre-Dawn Wrong-House Raid
Before dawn in October 2017, FBI agents raided Curtrina Martin's home. They breached the front door, detonated a flash-bang grenade, handcuffed Martin's husband, and held the couple at gunpoint while their seven-year-old son hid under the covers. The agents eventually realized they had entered the wrong home and left, leaving Martin with only an apology and their supervisor's business card.
Martin then sued the United States for negligence and intentional torts under the FTCA, which waives sovereign immunity for certain claims against the United States for injuries caused by federal employees. However, 28 U.S.C. § 2680 provides 13 exceptions to the FTCA's waiver of sovereign immunity. Two are relevant to Martin's case. First, the FTCA's "discretionary-function" exception, 28 U.S.C. § 2680(a), precludes "any claim" against the United States based on an employee of the government performing "a discretionary function or duty on the part of a federal agency or an employee of the Government." Second, 28 U.S.C. § 2680(h) preserves the government's immunity for a class of select torts. But within subsection (h) lives the "law enforcement proviso," which is a "countermanding" exception—i.e., an exception to the exception—for six intentional torts, including assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution, if they are committed by "investigative or law enforcement officers of the United States Government." Put simply, the FTCA provided Martin with a potential path to pursue her claims against the United States for the FBI officers' conduct during the raid.
Martin Encounters the Eleventh Circuit's Unusual FTCA Precedent
Until Martin, FTCA plaintiffs in the Eleventh Circuit faced two unique issues. First, the Eleventh Circuit had interpreted the law enforcement proviso as overriding all of the FTCA's liability exceptions, including the "discretionary-function exception," creating a "plaintiff-friendly" entry point for an FTCA suit. Thus, unlike in other circuits, Martin was able to sue the government for intentional torts, even if the FBI agents had been acting within their discretionary duties during the raid.
Second, to "compensate" for this broad reading of the law enforcement proviso, Eleventh Circuit precedent preserved sovereign immunity where the law enforcement officials' actions had "some nexus with furthering federal policy"—the rationale being that the Supremacy Clause ousted the FTCA's sovereign immunity waiver, which is premised on a private party's state-law liability, in such circumstances. See Kordash v. United States, 51 F.4th 1289 (11th Cir. 2022). In Martin's case, the Eleventh Circuit granted the government summary judgment on this purported affirmative Supremacy Clause defense. In light of the circuit split between the Eleventh Circuit and five other circuits regarding the interaction of the law enforcement proviso with the discretionary function exception, the Eleventh Circuit's recognition of a Supremacy Clause defense, and calls by circuit judges for clarification, the Supreme Court granted review.
The Supreme Court Corrects the Eleventh Circuit
In an opinion by Justice Gorsuch, the Supreme Court unanimously vacated the Eleventh Circuit's judgment.
First, looking at the FTCA's structure and "one textual clue after another," the Court concluded that the law enforcement proviso narrowly applies only to the limitations contained in § 2680(h) and not more broadly to the discretionary function exception, which is "housed" in a separate, discrete section. Notably, the Court rejected Martin's legislative history arguments for maintaining the Eleventh Circuit's expansion of the law enforcement proviso. Martin argued for a broad interpretation of the proviso, noting that it had been enacted in the wake of two similar wrong-house raids. But the Court declined to engage in "guesswork" on the proviso's purpose, reaffirming that "legislative history is not the law."
Second, the Court dispensed with the Eleventh Circuit's Supremacy Clause defense. The Supremacy Clause, the Court wrote, offers a "rule of decision" to resolve conflicts between state and federal law. In this case, Justice Gorsuch explained, the FTCA was the "supreme" federal law. Because the FTCA already incorporates the state law (here, Georgia) for purposes of tort liability, the two could not be in conflict, so there was no occasion for the Eleventh Circuit to apply the Supremacy Clause.[1]
Given that the Eleventh Circuit had erroneously deprived the government of its discretionary-function exception defense, the Supreme Court remanded the case so the Eleventh Circuit could "carefully reexamine" Martin's claims and determine which, if any, of the FBI agents' actions fell under the discretionary-function exception.
An Open Question: How Broad Is the Discretionary-Function Exception?
While Martin arose in the context of a wrong-house raid by the FBI, the ruling necessarily applies more broadly. The question lurking on remand is the breadth of the FTCA's discretionary-function exception. What are its "boundaries," and what legal tests will prevail?
A concurrence by Justice Sotomayor, joined by Justice Jackson, offers some clues. First, Justice Sotomayor noted the length of time—34 years—since the Supreme Court last addressed scope of the discretionary-function exception, "despite substantial percolation" in the courts of appeals. Thus, at least two members of the Court seem open to finding a suitable vehicle to revisit this issue. Justice Sotomayor also noted that "there is reason to think the discretionary-function exception may not apply to [Martin's] claims" because the FBI's conduct (or malfeasance) in the raid was not "based on considerations of public policy." Whether the Eleventh Circuit agrees could tee up another potential visit by Ms. Martin to the Supreme Court. As always, Venable will continue to monitor this and other Supreme Court developments.
* The authors thank Jeremy Venook, a summer associate in our Washington, DC office, for his assistance in writing this article.
[1] Perhaps anticipating this outcome, the government abandoned its Supremacy Clause defense before oral argument, and the Court appointed an amicus to defend the Eleventh Circuit's views.