Opposition Brief — Curtrina Martin, Individually and as Parent and Next Friend of G. W., a Minor, et al., Petitioners v. United States, et al.

No. 24-362

In the Supreme Court of the United States

CURTRINA MARTIN, INDIVIDUALLY AND AS PARENT AND

NEXT FRIEND OF G.W., A MINOR, ET AL., PETITIONERS

v.

UNITED STATES OF AMERICA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

ELIZABETH B. PRELOGAR

Solicitor General

Counsel of Record

BRIAN M. BOYNTON

Principal Deputy Assistant

Attorney General

MARK B. STERN

KEVIN J. KENNEDY

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Whether the court of appeals erred in affirming

judgment for the United States on petitioners’ claims

under the Federal Tort Claims Act, 28 U.S.C. 1346(b),

2671 et seq.

(I)

TABLE OF CONTENTS

Page

Opinions below .............................................................................. 1

Jurisdiction .................................................................................... 1

Statement ...................................................................................... 2

Argument....................................................................................... 8

Conclusion ................................................................................... 22

TABLE OF AUTHORITIES

Cases:

Baer v. United States, 722 F.3d 168 (3d Cir. 2013) ............ 12

Baker Botts L.L.P. v. ASARCO LLC,

576 U.S. 121 (2015).............................................................. 17

Berkovitz v. United States, 486 U.S. 531 (1988) ................... 9

Bivens v. Six Unknown Named Agents of

Fed. Bureau of Narcotics, 403 U.S. 388 (1971) ........... 5, 19

Caban v. United States,

671 F.2d 1230 (2d Cir. 1982) ............................................ 19

Carlson v. Green, 446 U.S. 14 (1980) .............................. 17-19

Castro v. United States, 562 U.S. 1168 (2011) .................... 13

Chaidez Campos v. United States,

139 S. Ct. 1317 (2019) ......................................................... 13

Denson v. United States:

574 F.3d 1318 (11th Cir. 2009), cert. denied,

560 U.S. 952 (2010) .............................................. 20, 21

560 U.S. 952 (2010) .......................................................... 21

Gasho v. United States,

39 F.3d 1420 (9th Cir. 1994), cert. denied,

515 U.S. 1144 (1995)............................................................ 20

Gray v. Bell,

712 F.2d 490 (D.C. Cir. 1983), cert. denied,

465 U.S. 1100 (1984)............................................................ 19

Harlow v. Fitzgerald, 457 U.S. 800 (1982) .......................... 17

(III)

IV

Cases—Continued:

Page

Joiner v. United States, 955 F.3d 399 (5th Cir. 2020) ........ 19

Kordash v. United States,

51 F.4th 1289 (11th Cir. 2022) ......................................... 6, 7

Lane v. Pena, 518 U.S. 187 (1996) ....................................... 15

Linder v. United States:

937 F.3d 1087 (7th Cir. 2019), cert. denied,

141 S. Ct. 159 (2020) ...................................... 18, 19, 21

141 S. Ct. 159 (2020) .................................................. 13, 21

Medina v. United States, 259 F.3d 220 (4th Cir. 2001) ..... 19

Mesa v. United States,

123 F.3d 1435 (11th Cir. 1997) ................................. 7, 10, 11

Middleton v. United States Fed. Bureau of

Prisons, 658 Fed. Appx. 167 (3d Cir. 2016)...................... 12

Miller v. United States, 163 F.3d 591 (9th Cir. 1998) ........ 11

Nguyen v. United States,

556 F.3d 1244 (11th Cir. 2009) ....................................... 6, 20

Shivers v. United States, 142 S. Ct. 1361 (2022) ................ 13

Simmons v. Himmelreich, 578 U.S. 621 (2016) ................. 16

Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) ................... 17

Torres-Estrada v. Cases, 88 F.4th 14 (1st Cir. 2023) ......... 13

United States v. Gaubert, 499 U.S. 315 (1991) ......... 9, 11, 12

United States v. Morrow, 266 U.S. 531 (1925).................... 15

Welch v. United States, 546 U.S. 1214 (2006) ..................... 13

Constitution and statutes:

U.S. Const.:

Art. VI, Cl. 2 (Supremacy Clause) ................... 6, 7, 13, 21

Amend. IV .................................................................... 6, 13

Act of Mar. 16, 1974,

Pub. L. No. 93-253, § 2, 88 Stat. 50 ..................................... 2

V

Statutes—Continued:

Page

Federal Tort Claims Act,

28 U.S.C. 1346(b), 2671 et seq. ............................................. 2

Tit. 28:

Ch. 85, 28 U.S.C. 1330 et seq.:

28 U.S.C. 1346(b)(1) ............................................... 2

Ch. 171, 28 U.S.C. 2671 et seq. .................................. 16

28 U.S.C. 2680 ................................................. 15-17

28 U.S.C. 2680(a) ...................................... 2, 8, 9, 16

28 U.S.C. 2680(c) .................................................. 20

28 U.S.C. 2680(h) ............................2, 15, 16, 18, 19

28 U.S.C. 2680(k).................................................. 16

Miscellaneous:

S. Rep. No. 588, 93d Cong., 1st Sess. (1973) .................. 17-19

Antonin Scalia & Bryan A. Garner, Reading Law:

Interpretation of Legal Texts (2012) ................................ 15

In the Supreme Court of the United States

No. 24-362

CURTRINA MARTIN, INDIVIDUALLY AND AS PARENT

AND NEXT FRIEND OF G.W., A MINOR, ET AL., PETITIONERS

v.

UNITED STATES OF AMERICA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 2a-19a)

is available at 2024 WL 1716235. The order of the district court (Pet. App. 21a-32a) is available at 2022 WL

18263039. A prior order of the district court (Pet. App.

34a-68a) is reported at 631 F. Supp. 3d. 1281.

JURISDICTION

The judgment of the court of appeals was entered on

April 22, 2024. A petition for rehearing was denied on

May 30, 2024. (Pet. App. 70a-71a). On July 22, 2024,

Justice Thomas extended the time within which to file a

petition for a writ of certiorari to and including September 27, 2024, and the petition was filed on that day. The

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

(1)

2

STATEMENT

1. The Federal Tort Claims Act (FTCA), 28 U.S.C.

1346(b), 2671 et seq., enacted in 1946, generally waives

the sovereign immunity of the United States and creates a cause of action for damages against the United

States with respect to certain torts of federal employees, acting within the scope of their employment, under

circumstances in which a private individual would be liable under state law. See 28 U.S.C. 1346(b)(1). The

FTCA contains various exceptions that limit the waiver

of sovereign immunity and the substantive scope of the

United States’ liability, including an exception for any

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.” 28 U.S.C. 2680(a).

The FTCA also excludes from its waiver of sovereign

immunity most intentional torts: “[a]ny claim arising

out of assault, battery, false imprisonment, false arrest,

malicious prosecution, abuse of process, libel, slander,

misrepresentation, deceit, or interference with contract

rights.” 28 U.S.C. 2680(h). In 1974, Congress added a

proviso to the intentional tort exception, known as the

law enforcement proviso. See Act of Mar. 16, 1974, Pub.

L. No. 93-253, § 2, 88 Stat. 50. The law enforcement

proviso states that “the provisions of this chapter and

section 1346(b) of this title shall apply to any claim arising * * * out of assault, battery, false imprisonment,

false arrest, abuse of process, or malicious prosecution”

that is based on “acts or omissions of investigative or

law enforcement officers of the United States Government.” 28 U.S.C. 2680(h).

3

2. In 2015, the Federal Bureau of Investigation

(FBI) initiated an operation concerning violent gang activity in Georgia. Pet. App. 4a. The operation ultimately

resulted in the criminal indictment of several individuals, including Joseph Riley. Id. at 3a-4a. Officers obtained warrants for Riley’s arrest and for the search of

his home at 3741 Landau Lane SW, Atlanta, Georgia

30331. Id. at 4a.

The FBI assigned Special Agent Lawrence Guerra

to lead a Special Weapons and Tactics (SWAT) team in

the execution of the search warrant. Pet. App. 4a-5a.

The FBI has a standard operating procedure that requires its agents to conduct a site survey or a drive-by

before executing a high-risk warrant, such as the one

for Riley’s arrest. Id. at 5a. The FBI, however, does

not have any policies that govern how to locate or navigate to a target address. Ibid.

Guerra took several steps in preparation to execute

the warrant. He reviewed information that other FBI

agents had obtained through surveillance of Riley and

3741 Landau Lane. Pet. App. 4a-6a. He conducted a

site survey of 3741 Landau Lane, during which he took

photographs and identified specific features of the home

so that he could locate the property when executing the

warrant in the early morning. Id. at 5a. Guerra noted

that the house was beige and split-level, located on a

corner lot, had a driveway and garage facing a separate

street that ran perpendicular to the front door, and had

a large tree in the front corner of the property. Ibid.

Guerra also wrote tactical notes outlining how his team

would execute the warrant, and he attended an operational briefing, which included presentations on and

photographs of Riley and 3741 Landau Lane. Id. at 6a.

4

In the pre-dawn hours of October 18, 2017, Guerra

conducted a further drive-by with FBI Special Agent

Michael Lemoine. Pet. App. 4a, 6a. Navigating in complete darkness, Guerra used his personal GPS device to

locate 3741 Landau Lane. Ibid. When the GPS unit

alerted that they had arrived at 3741 Landau Lane,

Guerra observed what he believed to be the same house

he had seen during his previous site survey: the home

was beige and split-level, located on a corner lot, had a

tight stairway and stoop leading to the front door with

windows on either side, had a driveway and garage facing a separate street that ran perpendicular to the front

door, and had a large tree in the front corner of the

property. Id. at 6a-7a. Guerra also observed a black

Camaro in the driveway, which he would later use as a

reference point to locate 3741 Landau Lane. Id. at 7a.

Unbeknownst to Guerra and Lemoine, however, the

GPS had directed them to a different home—3756 Denville Trace, petitioners’ residence. Pet. App. 6a-7a. Petitioners’ home at 3756 Denville Trace faces Landau

Lane and is a few houses (approximately 436 feet) from

3741 Landau Lane. Ibid. The house number does not

appear on the house itself; instead, it appears on the

mailbox and is not visible from the street. Id. at 7a.

The same day—and while it was still dark out—

Guerra, Lemoine, and other agents left for 3741 Landau

Lane in a caravan of vehicles. Pet. App. 7a. Guerra

identified what he believed to be 3741 Landau Lane

based on the black Camaro, his prior preparation, and

the morning drive-by. Ibid. He directed that his vehicle

stop in front of the house, and the other vehicles followed suit. Ibid. The members of the SWAT team then

assembled in their positions, and after Guerra knocked

5

and announced the presence of law enforcement, agents

entered the home. Id. at 7a-8a.

The agents were in the home for approximately five

minutes before realizing their mistake. Pet. App. 39a.

During that time, the SWAT team members found petitioners Hilliard Toi Cliatt and Curtrina Martin in a

closet, where Cliatt kept a shotgun for protection. Id.

at 3a, 8a. With their guns pointed, agents pulled Cliatt

out of the closet and placed him in handcuffs. Id. at 8a.

A SWAT team member also pointed a gun at Martin

while instructing her to keep her hands up. Ibid. Shortly

after detaining Cliatt, however, the officers realized

that they had entered the wrong house. Ibid. An agent

immediately lifted Cliatt from the ground and uncuffed

him. Ibid. Guerra advised petitioners that he would return to explain what had happened. Id. at 8a-9a.

The agents promptly executed the search warrant at

3741 Landau Lane, making an arrest of Riley as he attempted to flee. Pet. App. 9a. Once Riley and 3741 Landau Lane were secured, Guerra returned to petitioners’

home, where he apologized, provided his business card

and the name of his supervisor, documented the damage

to the home, and advised petitioners that the FBI would

handle the damages repairs. Ibid.

3. In September 2019, petitioners brought suit

against the United States under the FTCA. Pet. App.

9a. Petitioners raised several claims based on state tort

law, including, as relevant here, negligence, negligent/intentional infliction of emotional distress, trespass and interference with private property, false imprisonment, and assault and battery. Ibid.1

Petitioners also brought a claim against Guerra under Bivens v.

Six Unknown Named Agents of Federal Bureau of Narcotics, 403

1

6

The district court granted in part the government’s

motion for summary judgment. Pet. App. 34a-68a. The

court held that the discretionary function exception in

the FTCA barred petitioners’ claims for negligence,

negligent/intentional infliction of emotional distress,

trespass and interference with private property. Id. at

58a. The court denied summary judgment, however,

with respect to two claims—for false imprisonment and

for assault and battery—that involved torts listed in the

law enforcement proviso. Id. at 59a-60a. The court explained that under Eleventh Circuit precedent, claims

that implicate the law enforcement proviso may proceed

even if the acts giving rise to the claim involve a discretionary function. Ibid.; see Nguyen v. United States,

556 F.3d 1244, 1256 (11th Cir. 2009).

Upon a motion for reconsideration, the district court

granted the government’s motion for summary judgment in full and dismissed the complaint. Pet. App. 21a32a. In its reconsideration order, the court, applying

recent Eleventh Circuit precedent, held that the Supremacy Clause of the Constitution precluded petitioners from bringing their false imprisonment and assault

and battery claims against the United States. Id. at

26a-27a (citing Kordash v. United States, 51 F.4th 1289

(11th Cir. 2022)).

4. The court of appeals affirmed in an unpublished,

per curiam decision. See Pet. App. 2a-19a.

The court of appeals first held that the discretionary

function exception barred petitioners’ claims for torts

U.S. 388 (1971), alleging that Guerra’s mistaken execution of the

warrant at their house had violated their Fourth Amendment rights.

Pet. App. 9a. The court of appeals affirmed the dismissal of that

claim on qualified immunity grounds. Id. at 13a-15a. Petitioners do

not seek review of that holding. See Pet. 10 n.1.

7

that were not listed in the law enforcement proviso, i.e.,

“trespass and interference with private property,

negligent/intentional infliction of emotional distress,

and negligence.” Pet. App. 17a. The court explained

that the discretionary function exception to the FTCA

“exempts from liability state-tort claims arising from a

government official’s performance of a duty or function

that involves discretion.” Id. at 16a. And here, the court

observed, Guerra “enjoyed discretion” under FBI policies as to how to prepare for the execution of the warrant, and his decision was “ ‘susceptible to policy analysis,’ ” id. at 17a-18a (quoting Mesa v. United States, 123

F.3d 1435, 1438 (11th Cir. 1997)).

The court of appeals also affirmed the dismissal of

petitioners’ false imprisonment and assault and battery

claims. The court held that the Supremacy Clause,

“[s]imilar to the discretionary function exception,” “ensures that states do not impede or burden the execution

of federal law.” Pet. App. 16a. Under circuit precedent,

“[t]he government may invoke the Supremacy Clause

against state-tort liability” if it demonstrates that the

official’s acts (i) “ ‘have some nexus with furthering federal policy’ ” and (ii) “ ‘can reasonably be characterized

as complying with the full range of federal law.’ ” Id. at

17a (quoting Kordash, 51 F.4th at 1293). The court held

that Guerra’s acts had a “ ‘nexus with furthering federal

policy’ ” because there was “no doubt that Guerra acted

within the scope of his discretionary authority when he

prepared for and executed the search warrant.” Id. at

19a (citation omitted). And the court concluded that

Guerra’s actions complied with the “full range” of federal law because he did not “violate[] the Fourth Amendment.” Ibid. The court explained that “an officer who

makes ‘reasonable effort[s] to ascertain and identify

8

the’ target address of a valid search warrant complies

with the Fourth Amendment,” and “the decisions that

Guerra made,” while mistaken, were the “kind of reasonable mistakes that the Fourth Amendment contemplates,” as they involved the execution of “a high-risk

warrant” in a “rapidly-changing and dangerous situation.” Id. at 13a-14a (citation omitted; brackets in original).

ARGUMENT

Petitioners contend (Pet. 23-34) that the court of appeals misapplied the discretionary function exception in

Section 2680(a) to dismiss their claims for trespass, interference with private property, negligent/intentional

infliction of emotional distress, and negligence. That

contention lacks merit. The court of appeals correctly

held (Pet. App. 15a-18a) that the discretionary function

exception barred those claims, and its factbound and

nonprecedential decision is consistent with decisions of

this Court and other courts of appeals.

Petitioners further contend (Pet. 16-23) that the

court of appeals erred in affirming the dismissal of their

claims for false imprisonment and assault and battery.

Petitioners correctly observe that the court’s reasoning

for rejecting those claims differs from the approach of

other circuits, but that disagreement did not affect the

proper disposition of the case. The court correctly held

that petitioners’ claims are barred, and no court of appeals to have addressed the issue would have reached a

different result. Accordingly, this Court’s review is not

warranted.

1. The court of appeals correctly held that the discretionary function exception to the FTCA bars petitioners’ claims for trespass and interference with pri-

9

vate property, negligent/intentional infliction of emotional distress, and negligence. Insofar as petitioners

challenge that holding, they do so on fact-specific

grounds, and their effort to identify relevant disagreements among the courts of appeals is without merit.

a. The FTCA’s discretionary function exception provides that the United States’ waiver of sovereign immunity does not apply to claims based on an employee’s

“exercise or performance or the failure to exercise or

perform a discretionary function or duty * * *, whether

or not the discretion involved be abused.” 28 U.S.C.

2680(a). The exception serves to “prevent judicial ‘second-guessing ’ of legislative and administrative decisions * * * through the medium of an action in tort.”

United States v. Gaubert, 499 U.S. 315, 323 (1991) (citation omitted).

This Court has established a two-part inquiry to

guide application of the discretionary function exception. Gaubert, 499 U.S. at 322-323. First, a court must

determine whether the conduct challenged by the plaintiff was “discretionary in nature”—that is, whether it

involved “ ‘an element of judgment or choice.’ ” Id. at

322 (citation omitted). “The requirement of judgment

or choice is not satisfied if a ‘federal statute, regulation,

or policy specifically prescribes a course of action for an

employee to follow,’ because ‘the employee has no rightful option but to adhere to the directive.’ ” Ibid. (quoting Berkovitz v. United States, 486 U.S. 531, 536 (1988)).

Second, a court must evaluate “whether that judgment

is of the kind that the discretionary function exception

was designed to shield,” id. at 322-323 (quoting Berkovitz,

486 U.S. at 536), meaning it is “susceptible to policy

analysis,” id. at 325.

10

Guerra’s conduct in executing the search warrant

satisfied the Gaubert standard. As the court of appeals

observed, the FBI did not have policies that “dictate[d]

how agents are to prepare for warrant executions,” and

Guerra instead exercised discretion as to how to investigate the location. Pet. App. 18a (emphasis omitted).

That decision required judgment: an agent must weigh,

among other things, “the urgency of apprehending the

subject,” the need to “keep the investigation secret,”

and “available resources” in allocating agents across

“the many investigations for which they are responsible.” Mesa v. United States, 123 F.3d 1435, 1438 (11th

Cir. 1997). Here, Guerra faced a “rapidly-changing and

dangerous situation,” Pet. App. 14a, and he exercised

discretion to conduct his drive-by in the dark, with the

headlights dimmed, to “avoid detection” before executing a high-risk warrant, id. at 37a. While Guerra did

not have discretion to intentionally “raid the wrong

house,” Pet. 31, he did have discretion in determining

the preparatory steps necessary to “locate and identify”

the target address,” Pet. App. 18a.

Guerra’s conduct likewise satisfied the second component of Gaubert’s two-part inquiry because his “decision as to how to locate and identify the subject of an

arrest warrant * * * is susceptible to policy analysis.”

Pet. App. 18a (quoting Mesa, 123 F.3d at 1438). The

factors described above—which include competing considerations like officer and public safety, resource constraints, tactical considerations, and accuracy—are all

“fundamentally rooted in policy considerations,” for which

“judicial second-guessing” is not appropriate. Mesa, 123

F.3d at 1438. The court of appeals therefore correctly

held that Guerra’s preparatory efforts here “f [e]ll

11

squarely within the discretionary function exception.”

Pet. App. 18a (citation omitted).

b. Petitioners briefly contend (Pet. 28-30) that the

court of appeals erred in holding that Guerra’s execution of the warrant was “susceptible to policy analysis”

and thus “ ‘of the kind that the discretionary function

exception was designed to shield.’ ” Gaubert, 499 U.S.

at 322-323, 325 (citation omitted). In petitioners’ view

(Pet. 30), the proper inquiry asks whether a federal employee’s acts “actually”—“not just hypothetically”—

were grounded in policy analysis.

This Court has long since rejected the subjective

standard that petitioners advocate. In Gaubert, this

Court explained that the “focus of the inquiry is not on

the agent’s subjective intent in exercising the discretion

conferred by statute or regulation, but on the nature of

the actions taken.” 499 U.S. at 325. Thus, the relevant

question is not how an officer thinks about his or her

conduct; the question is whether the conduct is of the

“kind” that, by its nature, can be “grounded in the policy of the regulatory regime.” Ibid. (emphasis added).

Consistent with that approach, the Eleventh Circuit focused on the nature of Guerra’s conduct, explaining that

“a federal officer’s ‘decision as to how to locate and identify the subject of an arrest warrant’ ” is the kind of act

that requires discretion. Pet. App. 18a (quoting Mesa,

123 F.3d at 1438).

Contrary to petitioners’ assertion (Pet. 28-30), the

courts of appeals are unanimous, not divided, in following this Court’s guidance. Petitioners recognize that

nine circuits have held that an official’s act need “not be

actually grounded in policy considerations,” so long as it

is, “by its nature, susceptible to a policy analysis.” Pet.

28 (quoting Miller v. United States, 163 F.3d 591, 593

12

(9th Cir. 1998)). And contrary to petitioners’ contention

(Pet. 28-30), the Third Circuit likewise examines the

“nature of the actions taken,” not the “subjective intent” of the agent. Baer v. United States, 722 F.3d 168,

175 (2013) (quoting Gaubert, 499 U.S. at 325) (emphasis

omitted); see Middleton v. United States Fed. Bureau

of Prisons, 658 Fed. Appx. 167, 169-170 (3d Cir. 2016)

(per curiam) (concluding that task was susceptible to

policy analysis without considering whether officials actually engaged in such analysis).

c. Petitioners also maintain that review is warranted

to resolve two disagreements among the courts of appeal as to how the discretionary function exception applies. That contention is meritless. To the extent any

disagreements exists among the courts of appeals, this

case does not implicate them.

i. Petitioners contend (Pet. 31-33) that the courts of

appeals disagree on whether the discretionary function

exception is applicable where a federal employee’s conduct runs afoul of the Constitution. That question played

no role in the court of appeals’ decision. The court held

that “Guerra’s actions did not violate the Fourth Amendment.” Pet. App. 19a. In particular, the Court concluded

that that Guerra’s actions “constitute[d] the kind of reasonable mistakes that the Fourth Amendment contemplates.” Id. at 14a. Petitioners do not challenge that factbound determination, see Pet. i, and this case therefore

presents no opportunity to resolve any differences

among the courts of appeals as to the application of the

discretionary function exception to unconstitutional

conduct.2

Petitioners argue that the court of appeals spoke “imprecise[ly]”

when it stated that “ ‘Guerra’s actions did not violate the Fourth

2

13

Petitioners also overstate the extent of disagreement on that question. The government agrees that a

constitutional mandate, no less than a federal statutory or regulatory one, can eliminate a government official’s discretion when it is sufficiently specific or when

an authoritative construction and application with sufficient specificity was clearly established before the officer acted. Many of the cases that petitioners cite are

consistent with that position, as the government explained in its brief in opposition (at 8-11) in Shivers v.

United States, 142 S. Ct. 1361 (2022) (No. 21-682).3 And this

Court has repeatedly denied petitions for writs of certiorari

raising similar issues. See ibid.; Linder v. United States,

141 S. Ct. 159 (2020) (No. 19-1082); Chaidez Campos v.

United States, 139 S. Ct. 1317 (2019) (No. 18-234); Castro v. United States, 562 U.S. 1168 (2011) (No. 10-309);

Welch v. United States, 546 U.S. 1214 (2006) (No. 05529).

Amendment,’ ” and instead held only that Guerra’s actions did not

violate “ ‘clearly established law,’ ” without reaching the question of

whether there was a violation of substantive Fourth Amendment

law. Pet. 13 n.4 (citations omitted); see Pet. 32-33. That is incorrect.

In addition to “determin[ing] whether [Guerra’s] actions violated

the Fourth Amendment” in its qualified immunity analysis, the

court also considered as part of its Supremacy Clause analysis

whether Guerra “complied with the full range of the Fourth Amendment.” Pet. App. 19a; see id. at 17a (describing inquiry “[w]hen

faced with the determination whether the actions a law enforcement

officer took comply with the Fourth Amendment”). It concluded

that Guerra’s actions did so. Id. at 19a.

3

After the government’s filing in Shivers, the First Circuit held

that constitutional violations may preclude application of the discretionary function exception even if the violation in question was not

clearly established. See Torres-Estrada v. Cases, 88 F.4th 14, 20-23

(2023).

14

ii. This case also does not implicate any conflict

among the courts of appeals as to whether “careless acts”

fall outside the discretionary function exception. See Pet.

34. As petitioners acknowledge (ibid.), the Eleventh Circuit has not addressed that question, and it had no occasion to do so in this case. Petitioners did not argue in

the court of appeals that Guerra had acted carelessly.

See Pet. C.A. Br. 34-53. And the court did not treat his

acts as careless; on the contrary, it recognized that

Guerra took “reasonable” steps to correctly identify the

target of the search warrant and simply made a mistake

in the “rapidly-changing and dangerous situation of executing a high-risk warrant at night.” Pet. App. 14a.

This case therefore would come out no differently regardless of whether careless acts fall outside the discretionary function exception.

2. The court of appeals also correctly affirmed the

district court’s dismissal of petitioners’ claims for false

imprisonment and assault and battery. Those claims

are barred by the discretionary function exception, the

same as petitioners’ other state-law tort claims. Every

other court of appeals to consider the issue would have

resolved this case in the United States’ favor on that basis. While the Eleventh Circuit used a different rationale to reach the same result, that methodological

disagreement makes no practical difference and does

not warrant this Court’s review.

a. For the same reason that petitioners’ other tort

claims cannot proceed, see pp. 8-12, supra, the discretionary function exception precludes petitioners’ claims

for false imprisonment and assault and battery. In arguing otherwise, petitioners suggest (Pet. 26-27) that

the exception is categorically inapplicable to torts listed

15

in the law enforcement proviso of Section 2680(h). That

is wrong.

i. “[A] waiver of the Government’s sovereign immunity will be strictly construed, in terms of its scope,

in favor of the sovereign.” Lane v. Pena, 518 U.S. 187,

192 (1996). When Congress enacted the law enforcement proviso in 1974, it placed the proviso within the

intentional tort exception, Section 2680(h), and thereby

modified that particular exception to the FTCA. Although provisos sometimes have a broader import, it is

customary to use a proviso to refer only to things covered by the preceding clause. See United States v. Morrow, 266 U.S. 531, 535 (1925) (“[T]he presumption is

that, in accordance with its primary purpose, [a proviso]

refers only to the provision to which it is attached.”);

Antonin Scalia & Bryan A. Garner, Reading Law: Interpretation of Legal Texts 154 (2012) (“A proviso conditions the principal matter that it qualifies—almost always the matter immediately preceding.”). Here, the

text, structure, and history of Section 2680 all strongly

reinforce the conclusion that the law enforcement proviso has the customary scope of modifying only the preceding clause.

Significantly, Congress did not make the law enforcement proviso an amendment to any of the other exceptions in Section 2680, such as the discretionary function exception, which it could have done if it had intended to modify those preexisting exceptions as well.

And the conclusion that the proviso relates only to the

preceding clause of subsection (h) is reinforced by the

proviso’s reference specifically to some (but not all) of

the intentional torts excepted in that prior clause. See

28 U.S.C. 2680(h) (“Provided, That, with regard to acts

16

or omissions of investigative or law enforcement officers of the United States,” the FTCA “shall apply” to

claims alleging one of the select named intentional

torts.). Moreover, the final sentence of Section 2680(h)

furnishes, “[f]or the purpose of this subsection,” a definition of the term “ ‘investigative or law enforcement officer.’ ” Ibid. (emphasis added). Because that term appears only in the law enforcement proviso, the final sentence in subsection (h) thereby links the proviso exclusively to the intentional tort exception in “this subsection” in that additional way as well. Ibid.

Further still, the law enforcement proviso expressly

states that “the provisions of [Chapter 171 * * * shall

apply” to claims described within the proviso, 28 U.S.C.

2680(h) (emphasis added), and the discretionary function exception in 28 U.S.C. 2680(a) is one of the provisions of Chapter 171. See Simmons v. Himmelreich,

578 U.S. 621, 627 (2016) (interpreting the FTCA and

holding that, “[a]bsent persuasive indications to the

contrary,” the Court will “presume Congress says what

it means and means what it says”). Given the text and

placement of the law enforcement proviso in the statute,

the proviso is properly read as a modification only of the

first clause of Section 2680(h)—the clause excepting altogether certain intentional torts from the FTCA.

A broader reading of the law enforcement proviso—

as a limitation not only upon the intentional tort exception but also upon the other exceptions in Section

2680—would allow tort suits against the United States

that Congress plainly intended to bar. Under petitioners’ interpretation, a plaintiff alleging an intentional

tort with respect to acts or omissions of law enforcement officers could bring an FTCA claim arising in a

foreign country notwithstanding 28 U.S.C. 2680(k),

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which prohibits all tort claims “arising in a foreign country.” See Sosa v. Alvarez-Machain, 542 U.S. 692, 699-712

(2004) (holding that foreign country exception barred

FTCA claim for false arrest). The language and structure of Section 2680 as a whole therefore do not support

the counterintuitive suggestion that Congress intended

to override foundational compromises in the FTCA and

permit suits arising abroad, or from discretionary functions, simply because the plaintiff’s claim involves an alleged tort by a law enforcement officer.

ii. Notwithstanding the plain text of the statute, petitioners (Pet. 26-27) and their amici (Members of Congress Amici Br. 4-13) contend that the government’s position conflicts with Congress’s purpose in enacting the

law enforcement proviso. As this Court has recognized,

it must “follow the text even if doing so will supposedly

undercut a basic objective of the statute.” Baker Botts

L.L.P. v. ASARCO LLC, 576 U.S. 121, 135 (2015) (citation and internal quotation marks omitted). But here,

the history and context of the law enforcement proviso

reinforce that it was not intended to negate the discretionary function exception.

Congress adopted the proviso “as a counterpart to

the Bivens case and its progen[y], in that it waives the

defense of sovereign immunity so as to make the Government independently liable in damages for the same

type of conduct that is alleged to have occurred in

Bivens.” Carlson v. Green, 446 U.S. 14, 20 (1980) (quoting S. Rep. No. 588, 93d Cong., 1st Sess. 3 (1973) (Senate Report)). Defendants in Bivens actions are entitled

to immunity when their actions do not violate clearly established constitutional proscriptions, Harlow v. Fitzgerald, 457 U.S. 800, 813-819 (1982), and as noted above,

18

that same kind of immunity is incorporated into the discretionary function exception, see p. 13, supra. The application of the discretionary function exception to conduct covered by the law enforcement proviso thus is

consistent with the FTCA serving as a counterpart to

Bivens. See Carlson, 446 U.S. at 19-20 (“[T]he congressional comments accompanying [the law enforcement

proviso in Section 2680(h)] made it crystal clear that

Congress views FTCA and Bivens as parallel, complementary causes of action.”).

The construction of the law enforcement proviso and

discretionary function exception advanced by the government therefore best gives effect to every provision

of the statute and does not leave the law enforcement

proviso without effect. To start, many claims arising

from the intentional torts of law enforcement officers do

not implicate discretionary functions at all. See, e.g.,

Linder v. United States, 937 F.3d 1087, 1091 (7th Cir.

2019), cert. denied, 141 S. Ct. 159 (2020) (explaining that

it is clearly established that law enforcement officers do

not have discretion to commit perjury). Likewise, the

United States will not be shielded by the discretionary

function exception under the FTCA for the conduct of

federal law enforcement officers if they act in violation

of a clearly established constitutional, statutory, or regulatory directive, just as individual officers are not entitled to qualified immunity under Bivens when they violate clearly established law.

The law enforcement proviso accordingly retains full

force when law enforcement officers “act in bad faith or

without legal justification,” including when they conduct the type of “raids” that Congress intended the law

enforcement proviso to deter. Senate Report 3. Congress

added the proviso to create a cause of action for “the

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same type of conduct that [wa]s alleged to have occurred in Bivens,” Carlson, 446 U.S. at 20 (quoting Senate Report 3)—i.e., the raid of a home “without cause,

consent or warrant,” Bivens v. Six Unknown Named

Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 390

n.1 (1971) (citation omitted). That also was true of the

Collinsville raids that petitioners cite (Pet. 26) as the

basis for the law enforcement proviso. Those “ ‘no-knock’

raids * * * into two different homes,” involving the

“same Justice Department agents,” were conducted

“without warrants” and in an “abusive” fashion. Senate

Report 2-3 (emphasis added). This case—involving an

officer’s “reasonable mistakes” when “executing a highrisk warrant” in a “rapidly-changing and dangerous situation”—bears no resemblance to those warrantless

raids. Pet. App. 14a.

b. As petitioners acknowledge (Pet. 25), every court

of appeals—except the Eleventh Circuit—to consider

the issue has held that the discretionary function exception applies to the tort claims listed in the law enforcement proviso in Section 2680(h). See Linder, 937 F.3d

at 1088-1089 (rejecting argument that the law enforcement “proviso overrides the rest of [Section] 2680”);

Joiner v. United States, 955 F.3d 399, 406 (5th Cir.

2020) (“[T]he law enforcement proviso does not negate

the discretionary function exception.”); Medina v.

United States, 259 F.3d 220, 228-229 (4th Cir. 2001)

(where the discretionary function exception applies, it

controls, even if the plaintiff alleges intentional torts

within the law enforcement proviso); Gray v. Bell, 712

F.2d 490, 507-508 (D.C. Cir. 1983) (same), cert. denied,

465 U.S. 1100 (1984); Caban v. United States, 671 F.2d

1230, 1234 (2d Cir. 1982) (law enforcement proviso must

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be read in conjunction with discretionary function exception); see also Gasho v. United States, 39 F.3d 1420,

1433-1434 (9th Cir. 1994) (where the FTCA exception in

28 U.S.C. 2680(c) applies, that exception controls notwithstanding the law enforcement proviso), cert. denied, 515 U.S. 1144 (1995). Because Guerra’s conduct

falls within the discretionary function exception, see pp.

8-12, supra, every other court of appeals would have upheld the district court’s judgment on that basis.

c. The court of appeals affirmed the district court’s

judgment on a different rationale. The court of appeals

stated that there was “no doubt that Guerra acted

within the scope of his discretionary authority when he

prepared for and executed the search warrant.” Pet.

App. at 19a. The court was bound, however, by circuit

precedent holding that torts listed in the law enforcement proviso fall outside the scope of the discretionary

function exception. See Nguyen v. United States, 556

F.3d 1244, 1256 (11th Cir. 2009). The court therefore

affirmed dismissal of petitioners’ false imprisonment

and assault and battery claims on different grounds: It

applied other circuit precedent holding that, “[s]imilar

to the discretionary function exception, the Supremacy

Clause ensures that states do not impede or burden the

execution of federal law.” Pet. App. 16a (citing Denson

v. United States, 574 F.3d 1318, 1336-1337 (11th Cir.

2009), cert. denied, 560 U.S. 952 (2010)).

The court of appeals’ premise is sound. Congress could

not have intended that the United States would be held

liable for the actions of its law enforcement officers that

are discretionary and within the scope of their official

duties, because such conduct would ordinarily be privileged. For the reasons explained above, however, that

protection for the actions of law enforcement officers is

21

located in the FTCA itself, with no need to consider the

Supremacy Clause. See pp. 14-19, supra. Although the

court did not analyze the issue in that way, any error is

irrelevant to the proper disposition of this case. As explained above, petitioners’ claims must fail because they

arise out of Guerra’s exercise of a discretionary function. See pp. 8-12, supra.

Nor does the disagreement between the Eleventh

Circuit and the other courts of appeals regarding the

interplay of the discretionary function exception and

the law enforcement proviso warrant this Court’s review. The Eleventh Circuit “stands alone” in holding

that the discretionary function exception is inapplicable

to the torts listed in the law enforcement proviso.

Linder, 937 F.3d at 1089. But the decision below rests

on the same fundamental insight as the other courts of

appeals: The United States cannot face liability for the

acts of a law enforcement officer who “acted within the

scope of his discretionary authority.” Pet. App. 17a.

Thus, the disagreement as to methodology has little

practical significance, and the Court has previously denied petitions implicating the disagreement. See

Linder, 141 S. Ct. at 159; Denson v. United States, 560

U.S. 952, 952 (2010). The same result is warranted here.

d. If the Court were to grant a writ of certiorari to

review the Eleventh Circuit’s application of the Supremacy Clause to bar certain FTCA claims, it should

also direct the parties to address an additional question:

Whether the discretionary function exception is categorically inapplicable to claims arising under the law

enforcement proviso to the intentional torts exception.

As petitioners acknowledge (Pet. 25), the court of appeals reached the constitutional question only because

it could not address the statutory question under circuit

22

law. Resolving that threshold question is therefore necessary to a proper construction of the FTCA. And, as

the other courts of appeals to address the question have

recognized, there is no sound basis for holding that a

claim falls outside the scope of the discretionary function exception just because it is not separately barred

by the enumerated torts exception. For the reasons

given above, however, the Court should deny the petition for a writ of certiorari.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

ELIZABETH B. PRELOGAR

Solicitor General

BRIAN M. BOYNTON

Principal Deputy Assistant

Attorney General

MARK B. STERN

KEVIN J. KENNEDY

Attorneys

DECEMBER 2024