Tortious Constructions: Holding Federal Law Enforcement Accountable by Applying the FTCA’s Law Enforcement Proviso over the Discretionary Function Exception
Courts are reluctant to decide cases alleging abuses by federal law enforcement. This judicial reluctance is largely attributed to the principle of sovereign immunity, which holds that the United States—and therefore the federal government—cannot be sued. However, the sovereign can of its own accord consent to be sued: The federal government provided that consent in 1946 by enacting the Federal Tort Claims Act (FTCA), which allows tort suits against the United States. Specifically, a provision of the FTCA—the law enforcement proviso—explicitly states that law enforcement officers are amenable to suit for certain intentional torts. Nevertheless, courts have restricted the proviso’s efficacy through narrow interpretations and undue deference to competing FTCA provisions such as the discretionary function exception.
This Note argues that the law enforcement proviso must be interpreted more broadly to properly hold government officers accountable. It takes on the project of sifting through the FTCA’s complexity and history to articulate why the correct doctrinal approach is to apply the proviso exclusively, superseding any competing provision within the FTCA. It delineates the current spectrum of approaches among the circuit courts, finding that only the Eleventh Circuit has adopted the advocated approach. The Note then justifies this approach under statutory interpretation principles and tort law theory while also considering the practical consequences of a disappearing Bivens remedy. Properly understood, the complexity of the FTCA and the barrier of sovereign immunity fade away: For government activity as intrusive and forceful as law enforcement, a court of law simply must have the ability to hold officers accountable.