AuthorSisk, Gregory

INTRODUCTION 1790 I. THE PAST AND PRESENT OF LIABILITY FOR FEDERAL OFFICIAL WRONCDOING 1792 A. The Early Practice of Common-Law Tort Claims for Wrongdoing by Federal Officers 1792 B. The Rise of Common-Law Immunity for Federal Officers for Public Wrong, Tort Suits 1794 C. The Enactment of Expansive Statutory Immunity for Federal Officers from Tort Claims 1798 D. Judicial Birth and Partial Burial of a Constitutional Tort Claim Against Federal Officers 1800 E. Adoption of Limited Collective Government Liability in the Federal Tort Claims Act 1804 II. THE FUTURE OPPORTUNITY FOR A MORE ROBUST TORT REMEDY AGAINST THE FEDERAL GOVERNMENT 1806 A. The Virtues of a Tort Remedy Directly Against the United States for Official Wrongdoing 1806 B. Expanding the FTCA Remedy for a More Robust Response to Official Wrongdoing 1812 C. Clarifying the Exceptions to Tort Liability for Governmental Policymaking 1817 D. With a Tort-Based Remedy for Official Wrongdoing, Constitutional Norms Remain at the Heart of the Analysis 1823 1. For Many Common-Law Tort Claims, an Element or Defense of Probable Cause or Justification Runs Parallel to Constitutional Constraints 1823 2. For the FTCA's Discretionary Function Exception, Discretion Is Withdrawn When Constitutional Directives Are Violated 1828 CONCLUSION 1832 ADDENDUM: PROPOSED REVISIONS TO STATUTORY WAIVERS OF SOVEREIGN IMMUNITY 1833 INTRODUCTION

It didn't start out this way. When the American constitutional republic began more than two centuries ago, a remedy in damages for misconduct by federal officers was generally accepted and did not encounter obstacles of governmental immunity. (1) But by the late twentieth century, a regime of all-encompassing official immunity from tort liability, (2) together with the birth and then near-death of judicial implication of a constitutional damages remedy, (3) has nearly suffocated accountability in court for federal official wrongdoing. The promising substitute of a collective federal government liability through a statutory waiver of sovereign immunity has been neglected by Congress as circumstances change over the decades and now risks being sidelined by overly expansive applications of a policy immunity exception. (4)

As the Supreme Court weakens the Bivens constitutional tort cause of action and federal officers avoid liability for unlawful behavior through qualified immunity, (5) we should recollect the merit of the common-law tort remedy for holding the federal government accountable for official wrongdoing. (6) For more than a century after ratification of the Constitution, federal officers who trespassed on the rights of American citizens could be held liable under common-law tort theories, uncomplicated by immunity for wrongful government actors. (7) Now is the time to return to the legislative branch to recover the tort-based solution for government wrongdoing.

And it doesn't have to stay this way. The modern Federal Tort Claims Act (FTCA) (8) roughly replicates the original regime for official wrongdoing by imposing liability direcdy on the government through the traditional medium of tort. (9) Through modest revisions to the FTCA, most claims for abuse of federal government power can be adequately addressed through a common-law tort cause of action.

When federal agents are negligent, the injured have a well-worn path to redress in court through the FTCA. (10) But when government officials deliberately impose harm on others, the road to recovery is muddy and covered with obstacles. (11) The FTCA presently excludes claims for assault, battery, false arrest, false imprisonment, and malicious prosecution, subject to a special proviso allowing such claims when the federal agent is a law enforcement officer. (12) The FTCA should be reformed to put claims for intentional wrongdoing by any federal employee on a secure footing. (13)

For this tort-based remedy to effectively cover "ordinary common-law torts," (14) the Supreme Court must clarify the scope of the FTCA's justified immunity for policymaking discretionary functions. (15) When properly applied, this exception avoids "judicial 'second-guessing' of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort." (16) Unfortunately, in the lower federal courts, simple failures in public safety have regularly been levitated into imaginary policy meditations. (17) With acquiescence by the courts, government litigators have transformed the discretionary function exception into a sweeping immunity for official wrongdoing in areas of mundane activity and on matters that are far removed from the arena of policy judgment. (18)

Constitutional principles remain central to adjudication of tort claims against the federal government. First, ordinary tort claims, such as false arrest or false imprisonment, may be defeated by the presence of probable cause as a common-law equivalent to constitutional expectations. (19) Likewise, certain defenses, such as the justified use of force in response to a common-law assault and battery claim, may be refuted by asserting the equivalent of constitutional violations. (20) Second, the invocation of discretionary policy immunity under the FTCA is precluded when constitutional limits are transgressed, as no federal officer has discretion to bypass constitutional requirements. (21) By focusing attention on the collective liability of the United States government through the FTCA, rather than on individual liability of federal officers through constitutional tort claims, the defense of qualified immunity falls away. (22)


    1. The Early Practice of Common-Law Tort Claims for Wrongdoing by Federal. Officers

      At the beginning of the American constitutional experiment, there was broad and authoritative acceptance of a common-law cause of action for damages caused by the misconduct of another person, including a federal official acting under official orders. In his definitive work on federal officer liability and indemnification for public wrongs, James Pfander explains that, from the early days of the republic, courts adopted "common-law norms to "appl[y] a fairly unyielding body of tort law in assessing the liability of government actors for invasions of rights to person and property." (23) During the nineteenth century, if a person suffered an injury at the hands of a federal government employee that was cognizable as a trespass by the common law, the plaintiff could recover damages in state or federal court against that government agent in his individual capacity. (24) As the Supreme Court confirmed recently in its unanimous decision in Tanzin v. Tanvir, (25) "These common-law causes of action [against government officials] remained available through the 19th century and into the 20th." (26)

      The Supreme Court established the framework for common-law federal official liability very early in the 1804 decision of Little v. Barreme (27) When American trade with French ports was restricted by statute during cold war tensions between the United States and France, the commander of a United States naval ship ordered seizure of a cargo ship that he plausibly believed was American in origin and engaged in forbidden French trade. (28) After forfeiture proceedings against the vessel were initiated by the commander in Boston federal court, the owner of the ship counterclaimed for damages and asserted it was a neutral ship registered under the Danish flag. (29) On later review, the Supreme Court concluded the seizure violated the nonintercourse statute because it had been executed as the ship was departing a French port rather than arriving to one. (30)

      Notwithstanding that the naval commander was acting pursuant to presidential orders, the Supreme Court held in Little that such directives "cannot change the nature of the transaction, or legalize an act which without those instructions would have been a plain trespass." (31) For the Court, Chief Justice Marshall explained that, despite his original inclination to bar damages against a federal officer who acted under "orders from the legitimate authority," he came to the conclusion that the claim for damages could proceed against the commander individually. (32)

      Nor were individual federal officers protected by governmental immunity in this early period of the American republic. (33) As Justice Story explained in another ship seizure case, "matters of state" and "great public purposes," such as the need "to act on a sudden emergency, or to prevent an irreparable mischief," were beyond the proper purview of the judiciary. (34) Rather, Justice Story said, "this Court can only look to the questions, whether the laws have been violated." (35) And if the law had been violated, then "justice demands, that the injured party should receive a suitable redress." (36)

      In a mid-nineteenth century treatise, Justice Story explained that the personal liability of federal officers for positive legal wrongs could not be excused by showing "that they have acted bond fide, and to the best of their skill and judgment." (37) Good faith not being a legitimate defense, the officer could escape liability only by showing "there has been no misfeasance or negligence, and no excess of authority, by public agents, in the execution of their duty." (38)

      In sum, as James Pfander says, "Nineteenth century jurists... assumed that civilian courts were the proper forum for claims brought against military, revenue, and postal officers who exceeded the bounds of their authority and inflicted injuries on innocent third persons." (39)

      This is not to say that the federal officer was left to suffer alone the consequences of faithfully following a governmental policy or action directive that a court later found had wrongfully caused harm. Just as the Supreme Court assumed that a tort claim was properly allowed for the victim...

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