Amicus Curiae 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.,

Respondents.

_______________

On Writ Of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

_______________

BRIEF OF AMICI CURIAE

MEMBERS OF CONGRESS

IN SUPPORT OF PETITIONERS

_______________

JONATHAN C. BOND

JEFF LIU

Counsel of Record

LAVI M. BEN DOR

ALEXI T. EHRLICH

T. HUNTER MASON

GIBSON, DUNN & CRUTCHER LLP

1700 M Street, N.W.

Washington, D.C. 20036

(202) 955-8500

jyliu@gibsondunn.com

Counsel for Amici Curiae

i

TABLE OF CONTENTS

Page

INTEREST OF AMICI CURIAE ................................1

INTRODUCTION AND SUMMARY OF

ARGUMENT ...............................................................2

ARGUMENT ...............................................................4

I.

THE ELEVENTH CIRCUIT’S DECISION

DEFEATS CONGRESS’S CORE OBJECTIVE

IN ENACTING THE FTCA’S LAWENFORCEMENT PROVISO .................................4

II. THE ELEVENTH CIRCUIT’S DISTORTION

OF THE SUPREMACY CLAUSE

UNDERMINES CONGRESS’S POWER ................13

III. THE DISCRETIONARY-FUNCTION

EXCEPTION DOES NOT OVERRIDE THE

LAW-ENFORCEMENT PROVISO .........................19

CONCLUSION .......................................................... 30

APPENDIX ................................................................ 1a

ii

TABLE OF AUTHORITIES

Cases

Page(s)

Abramski v. United States,

573 U.S. 169 (2014) ................................................ 5

Alaska v. United States,

545 U.S. 75 (2005) ................................................ 27

Ash Sheep Co. v. United States,

252 U.S. 159 (1920) ................................................ 5

Berkovitz v. United States,

486 U.S. 531 (1988) .............................................. 21

Boyle v. United Technologies Corp.,

487 U.S. 500 (1988) .............................................. 16

Brownback v. King,

592 U.S. 209 (2021) ................................................ 6

Bufkin v. Collins,

No. 23-713 (U.S. Mar. 5, 2025) ............................ 22

Denson v. United States,

574 F.3d 1318

(11th Cir. 2009) .................................. 14, 15, 16, 18

Department of Agriculture v. Kirtz,

601 U.S. 42 (2024) ................................................ 15

Dorsey v. United States,

567 U.S. 260 (2012) .............................................. 25

FDA v. Brown & Williamson Tobacco Corp.,

529 U.S. 120 (2000) .............................................. 25

Feres v. United States,

340 U.S. 135 (1950) .............................................. 18

iii

Garland v. Cargill,

602 U.S. 406 (2024) .............................................. 26

Geier v. American Honda Motor Co.,

529 U.S. 861 (2000) .............................................. 14

Gozlon-Peretz v. United States,

498 U.S. 395 (1991) .............................................. 24

Gustafson v. Alloyd Co.,

513 U.S. 561 (1995) .............................................. 29

HCSC-Laundry v. United States,

450 U.S. 1 (1981) .................................................. 24

Hillsborough County v. Automated

Medical Laboratories, Inc.,

471 U.S. 707 (1985) .............................................. 14

Indian Towing Co. v. United States,

350 U.S. 61 (1955) ................................................ 19

In re KBR, Inc., Burn Pit Litigation,

744 F.3d 326 (4th Cir. 2014) ................................ 17

Koohi v. United States,

976 F.2d 13287 (9th Cir. 1992) ............................ 16

Kordash v. United States,

51 F.4th 1289 (11th Cir. 2022) ............................ 15

Maryland v. Louisiana,

451 U.S. 725 (1981) .............................................. 14

Mayo v. United States,

319 U.S. 441 (1943) .............................................. 17

McCulloch v. Maryland,

17 U.S. (4 Wheat.) 316 (1819) .............................. 14

Millbrook v. United States,

569 U.S. 50 (2013) .............................................. 7, 9

iv

Molzof v. United States,

502 U.S. 301 (1992) .............................................. 16

Morrison v. National Australia Bank Ltd.,

561 U.S. 247 (2010) .............................................. 29

Murphy v. Smith,

583 U.S. 220 (2018) .............................................. 22

In re Neagle,

135 U.S. 1 (1890) .................................................. 18

Nguyen v. United States,

556 F.3d 1244

(11th Cir. 2009) .............................. 9, 20, 22, 23, 25

Ohio v. Thomas,

173 U.S. 276 (1899) .............................................. 18

Oncale v. Sundowner Offshore Services, Inc.,

523 U.S. 75 (1998) .................................................. 6

Parker Drilling Management Services, Ltd. v.

Newton,

587 U.S. 601 (2019) .............................................. 17

Patel v. Garland,

596 U.S. 328 (2022) .............................................. 22

PLIVA, Inc. v. Mensing,

564 U.S. 604 (2011) .............................................. 15

RadLAX Gateway Hotel, LLC v.

Amalgamated Bank,

566 U.S. 639 (2012) ........................................ 23, 24

Radzanower v. Touche Ross & Co.,

426 U.S. 148 (1976) .............................................. 22

Republic of Iraq v. Beaty,

556 U.S. 848 (2009) .............................................. 27

v

Richards v. United States,

369 U.S. 1 (1962) .................................................... 7

Rockford Life Insurance Co. v. Illinois

Department of Revenue,

482 U.S. 182 (1987) .............................................. 17

Saleh v. Titan Corp.,

580 F.3d 1 (D.C. Cir. 2009) .................................. 16

Sheridan v. United States,

487 U.S. 392 (1988) ................................................ 7

Sutton v. United States,

819 F.2d 1289 (5th Cir. 1987) .............................. 26

Tafflin v. Levitt,

493 U.S. 455 (1990) .............................................. 17

Trump v. Vance,

591 U.S. 786 (2020) .............................................. 17

United Federation of Postal Clerks,

AFL-CIO v. Watson,

409 F.2d 462 (D.C. Cir. 1969) .............................. 30

United States v. Belmont,

301 U.S. 324 (1937) .............................................. 17

United States v. Bormes,

568 U.S. 6 (2012) .................................................. 13

United States v. Gaubert,

499 U.S. 315 (1991) .............................................. 21

United States v. Kimbell Foods, Inc.,

440 U.S. 715 (1979) ........................................ 15, 16

United States v. Morrow,

266 U.S. 531 (1925) .............................................. 27

vi

United States v. Olson,

546 U.S. 43 (2005) ................................................ 19

United States v. S.A. Empresa de Viacao

Aerea Rio Grandense (Varig Airlines),

467 U.S. 797 (1984) .............................................. 21

Wilson v. United States,

79 F.4th 312 (3d Cir. 2023) .................................. 16

Constitutional Provisions

U.S. Const. Art. VI, § 2.................................. 13, 14, 16

Statutes

28 U.S.C. § 1331 ........................................................ 16

28 U.S.C. § 1346 ............................................ 15, 18, 20

28 U.S.C. § 2671 . ...................................................... 28

28 U.S.C. § 2674 ............................................ 18, 20, 28

28 U.S.C. § 2680 ........................... 2, 4, 5, 7, 10, 16, 20,

21, 22, 23, 27 28, 29

Other Authorities

Jack Boger et al., The Federal Tort

Claims Act Intentional Torts

Amendment: An Interpretative

Analysis, 54 N.C. L. Rev. 497 (1976) ................. 8, 9

Samuel L. Bray, The Mischief Rule,

109 Geo. L.J. 967 (2021) ........................................ 5

Paul Figley, Ethical Intersections & the

Federal Tort Claims Act: An

Approach for Government Attorneys,

8 U. St. Thomas L.J. 347 (2011) ............................ 6

vii

Andrew H. Malcolm, Drug Raids

Terrorize 2 Families—by Mistake,

N.Y. Times (Apr. 29, 1973) .................................... 9

James E. Pfander & Jonathan L. Hunt,

Public Wrongs and Private Bills:

Indemnification and Government

Accountability in the Early Republic,

85 N.Y.U. L. Rev. 1862 (2010) ............................... 7

James E. Pfander & Neil Aggarwal,

Bivens, the Judgment Bar, and the

Perils of Dynamic Textualism,

8 U. St. Thomas L.J. 417 (2011)........................ 6, 7

Antonin Scalia & Bryan A. Garner,

Reading Law (2012) ........................... 23, 24, 25, 27

Gregory Sisk, Recovering the Tort

Remedy for Federal Official

Wrongdoing, 96 Notre Dame L. Rev.

1789 (2021) ............................................................. 7

Paul David Stern, Tort Justice Reform,

52 U. Mich. J.L. Reform 649 (2019) ...................... 9

S. Rep. No. 469, 93d Cong.,

1st Sess. 28 (1973).................................... 11, 12, 13

S. Rep. No. 588, 93d Cong.,

1st Sess. 2 (1973).................................. 8, 10, 11, 26

Eric Wang, Tortious Constructions:

Holding Federal Law Enforcement

Accountable by Applying the FTCA’s

Law Enforcement Proviso Over the

Discretionary Function Exception,

95 N.Y.U. L. Rev. 1943 (2020) ............................... 9

1

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.,

Respondents.

On Writ Of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

BRIEF OF AMICI CURIAE

MEMBERS OF CONGRESS

IN SUPPORT OF PETITIONERS

INTEREST OF AMICI CURIAE*

Amici curiae are current Members of the United

States Congress. As this Nation’s federal lawmakers,

amici have a vital interest in protecting the supremacy of federal laws that Congress has enacted pursuant to its constitutional authority. Amici also have an

interest in the proper interpretation and application

* Pursuant to Supreme Court Rule 37.6, no counsel for a

party authored this brief in whole or in part, and no person or

entity other than amici or their counsel made a monetary contribution to this brief ’s preparation.

2

of federal law. That interest is especially significant

for laws like the Federal Tort Claims Act (FTCA),

28 U.S.C. §§ 1346(b), 2671 et seq., which Congress enacted specifically to safeguard individual liberties

against government intrusion and to provide redress

for amici’s constituents and other Americans harmed

by federal law-enforcement officials.

INTRODUCTION AND

SUMMARY OF ARGUMENT

The Constitution’s structural separation of powers and its Supremacy Clause both ensure that Congress’s policy judgments take primacy on matters

within its constitutional authority. Congress made its

judgments clear when it enacted the FTCA’s lawenforcement proviso, 28 U.S.C. § 2680(h), to provide

relief for victims of deliberate misconduct by federal

law-enforcement officers. The Eleventh Circuit’s decision in this case flouts the Constitution’s design and

defies Congress’s judgment by refusing to give effect

to that proviso in the very circumstance that

prompted its enactment.

Half a century ago, Congress enacted the lawenforcement proviso to authorize damages suits

against the United States for intentional torts committed by federal law-enforcement officers. Discerning Congress’s objectives in decades-old enactments is

sometimes difficult, but the impetus for the lawenforcement proviso is clear: In April 1973, federal

agents mistakenly stormed two homes in Collinsville,

Illinois, terrifying innocent families and damaging

their homes. Occurring at the height of President

Nixon’s War on Drugs, the Collinsville raids drew national outrage and spurred Congress to act. In adopt-

3

ing the law-enforcement proviso the following year,

Congress sought to provide meaningful recourse for

victims of wrong-house raids at the hands of federal

law enforcement, like the Collinsville families. Whatever else the proviso encompasses, there is no question that wrong-house raids lie at its core.

That proviso was tailor-made for cases like this

one. Petitioners are victims of a wrong-house raid

that resulted from federal agents’ execution of a

search warrant—precisely the type of plaintiffs the

proviso contemplated. Yet the Eleventh Circuit held

that the proviso offers them no relief, concluding that

the Constitution’s Supremacy Clause foreclosed petitioners’ claims covered by the proviso.

That decision unravels Congress’s work and

leaves the proviso a dead letter for the very type of lawenforcement abuse that drove the proviso’s adoption.

And the court of appeals’ reasoning perversely treats

a provision of the Constitution designed to ensure the

supremacy of federal statutes as a basis to disregard

Congress’s will as expressed in the U.S. Code. On the

Eleventh Circuit’s telling, the Supremacy Clause bars

any claim under a federal statute (the FTCA) based

on a federal officer’s conduct if that conduct relates to

performance of his official duties and violates no

clearly established constitutional principle. That approach transmutes a limitation on state power into a

limitation on congressional authority. Although Congress chose in the FTCA to borrow the substance of

state law as the relevant rule of decision, FTCA claims

arise under federal, not state, law. And nothing in the

Constitution limits Congress’s power to waive the federal government’s sovereign immunity by incorporating state-law standards of liability.

4

The government declines to defend the Eleventh

Circuit’s misguided Supremacy Clause rule and instead attempts to defend the judgment by invoking the

FTCA’s discretionary-function exception, 28 U.S.C.

§ 2680(a). That provision bars relief for claims based

on a government employee’s exercise of (or failure to

exercise) “a discretionary function or duty.” Ibid. But

the FTCA’s text makes clear that the discretionaryfunction exception is categorically inapplicable to lawenforcement proviso claims. Congress enacted the

proviso specifically to remove the government’s immunity from suit in cases like this one. The government’s invocation of the discretionary-function exception’s general terms to narrow the proviso’s specific,

later-enacted protections distorts the statute and

would defeat Congress’s principal aim in enacting the

proviso. The government’s position, no less than the

Eleventh Circuit’s decision, would leave the proviso a

dead letter in (among many other circumstances) the

very scenario Congress enacted it to address.

Neither the Supremacy Clause nor the discretionaryfunction exception bars valid claims under the lawenforcement proviso. The Court should reverse.

ARGUMENT

I.

THE ELEVENTH CIRCUIT’S DECISION DEFEATS

CONGRESS’S CORE OBJECTIVE IN ENACTING THE

FTCA’S LAW-ENFORCEMENT PROVISO

The decision below negates the law-enforcement

proviso’s intended effect on the very type of tort claim

for which it was designed. In 1973, federal agents

stormed two residences in Collinsville, Illinois, terrifying the residents within. But the agents invaded the

wrong homes. Public outrage ensued.

5

Congress responded by enacting the FTCA’s lawenforcement proviso. 28 U.S.C. § 2680(h). The proviso withdraws federal sovereign immunity from damages claims “with regard to acts or omissions of investigative or law enforcement officers of the United

States Government” for “any claim arising * * * out

of assault, battery, false imprisonment, false arrest,

abuse of process, or malicious prosecution.” Ibid. The

proviso’s plain text provides—and it was enacted specifically to guarantee—that victims of wrong-house

raids by federal agents like the Collinsville families

can seek redress from the United States for the specified torts.

The decision below nullifies the law-enforcement

proviso in precisely that circumstance. Faced with

FTCA claims alleging a wrong-house raid just like

those that prompted the proviso’s enactment, the

Eleventh Circuit concluded that petitioners nevertheless have no remedy. Pet. App. 19a. That the Eleventh Circuit’s ruling leaves the proviso a dead letter

even in wrong-house-raid cases shows that its

Supremacy Clause approach is off track.

Faithful construction of federal statutes requires

courts to read a law’s text in light of its “structure,

history, and purpose.” Abramski v. United States,

573 U.S. 169, 179 (2014) (citation omitted). As this

Court has long instructed, “determining the legislative intent” thus includes “look[ing] to,” inter alia, “the

mischief to be prevented” by the law. Ash Sheep Co.

v. United States, 252 U.S. 159, 168 (1920); see, e.g., id.

at 169 (construing statute to encompass conduct that

“[wa]s plainly within the mischief at which th[e] section aimed,” in accord with the settled judicial and Executive Branch understanding); Samuel L. Bray, The

6

Mischief Rule, 109 Geo. L.J. 967, 1000-1002 (2021).

To be sure, a statute’s plain language sometimes

reaches beyond the immediate problem that prompted

its enactment. Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 79 (1998). But the fact that a

judicial decision renders a statutory provision defunct

in the exact scenario that it was enacted to address is

ordinarily a telltale sign that something is amiss.

That is the case here.

A. The law-enforcement proviso’s text and context

make clear that Congress provided a damages remedy

against the United States for victims of wrong-house

raids by federal agents.

1. Before the FTCA’s enactment, sovereign immunity barred a person injured by a federal employee

from suing the United States for damages. Brownback v. King, 592 U.S. 209, 211 (2021). Instead, victims “would sue government officers and employees.”

James E. Pfander & Neil Aggarwal, Bivens, the

Judgment Bar, and the Perils of Dynamic Textualism, 8 U. St. Thomas L.J. 417, 425 (2011) (Pfander &

Aggarwal).

This system of individual-officer suits proved unwieldy. With many federal officers judgment-proof,

“citizens injured by the torts of federal employees”

often had “to ask Congress to enact private legislation

affording them relief.” Paul Figley, Ethical Intersections & the Federal Tort Claims Act: An Approach for

Government Attorneys, 8 U. St. Thomas L.J. 347, 348

& n.7 (2011). But the resultant system of “private

bills” proved laborious. Brownback, 592 U.S. at 211.

“[B]y the 1940s, Congress was” inundated, “considering hundreds of such private bills each year.” Ibid.

7

For suits that did proceed against individual officers,

Congress would often indemnify the officers upon the

officers’ submission of “applications for indemnity.”

Pfander & Aggarwal 425. But indemnity was far from

guaranteed, and the procedure interposed additional

hurdles to relief. See Gregory Sisk, Recovering the

Tort Remedy for Federal Official Wrongdoing,

96 Notre Dame L. Rev. 1789, 1809 (2021) (describing

“practical advantage” of “bypass[ing] the officer indemnity request”); James E. Pfander & Jonathan L.

Hunt, Public Wrongs and Private Bills: Indemnification and Government Accountability in the Early Republic, 85 N.Y.U. L. Rev. 1862, 1867 (2010).

Congress enacted the FTCA in 1946 to replace

that cumbersome system and “to free Congress from

the burden of passing on petitions for private relief.”

Pfander & Aggarwal 424. To that end, the FTCA generally “remove[d] the sovereign immunity of the

United States from suits in tort.” Richards v. United

States, 369 U.S. 1, 6 (1962). The FTCA thus channeled determinations of sovereign immunity for torts

by federal officials away from ad hoc determinations

by Congress to courts applying statutory standards.

The FTCA’s “broad waiver of sovereign immunity”

was not absolute, however, but “subject to a number

of exceptions.” Millbrook v. United States, 569 U.S.

50, 52 (2013). One was the “intentional tort exception,” Sheridan v. United States, 487 U.S. 392, 400

(1988), which preserved sovereign immunity (and

thus bars claims) for certain intentional torts, 28

U.S.C. § 2680(h). For such claims, plaintiffs had only

the unworkable pre-FTCA remedies of suing the individual officers or petitioning Congress for private legislation.

8

2. So things stood for nearly three decades. But

two wrong-house raids in April 1973 in a small suburb

in Illinois shined a national spotlight on misconduct

by federal law enforcement, prompting Congress to revise the FTCA. On April 23, federal officers “mistakenly stormed the homes of two Collinsville, Illinois,

families in an attempt to apprehend suspected cocaine

dealers.” Jack Boger et al., The Federal Tort Claims

Act Intentional Torts Amendment: An Interpretative

Analysis, 54 N.C. L. Rev. 497, 500 (1976) (Boger). The

agents charged into Herbert and Evelyn Giglotto’s

home first. Ibid. The couple “awoke * * * to the

sound of someone smashing down their door” and

found “shabbily dressed men” in their home

“[b]randishing pistols.” Ibid. One of the intruding officers tied Mr. Giglotto’s “hands behind his back,”

pointed a gun at his head, and threatened to kill him

if he moved. Ibid. The officers detained Mrs. Giglotto

too, eventually “identif[ying] themselves as federal officers.” Ibid. While “ransack[ing]” the house, the officers realized they had the wrong home. Ibid.

“[W]ithout apology, [they] untied the couple” and left.

Id. at 500-501.

Thirty minutes later, “the same Justice Department agents” descended on the nearby home of the

Askews. S. Rep. No. 588, 93d Cong., 1st Sess. 2

(1973). Mrs. Askew “screamed to her husband, who

looked up to find two men standing at his kitchen

door—one holding a sawed-off shotgun—and a third

man standing at another door.” Boger 501. This all

proved too much for Mrs. Askew, who fainted from

fright. Ibid. After gaining entry, the agents realized

they again had the wrong home and left. Ibid.

9

The Collinsville raids quickly drew national attention. “Drug Raids Terrorize 2 Families—by Mistake,”

read the New York Times. Andrew H. Malcolm, Drug

Raids Terrorize 2 Families—by Mistake, N.Y. Times

(Apr. 29, 1973). On the Senate floor less than a month

later, Senator Sam Ervin of North Carolina pointed to

the Collinsville raids to assail a federal law authorizing officers to conduct “no-knock” raids. Boger 506.

The ensuing furor became the “impetus” for Congress to enact the FTCA’s law-enforcement proviso.

Eric Wang, Tortious Constructions: Holding Federal

Law Enforcement Accountable by Applying the FTCA’s

Law Enforcement Proviso Over the Discretionary

Function Exception, 95 N.Y.U. L. Rev. 1943, 1954

(2020); see also Paul David Stern, Tort Justice Reform, 52 U. Mich. J.L. Reform 649, 665 (2019) (similar). As the Eleventh Circuit itself has long recognized, “Congress added the proviso” after the Collinsville raids “to ensure that future victims of these kinds

of torts * * * would have a damages remedy against

the United States.” Nguyen v. United States, 556 F.3d

1244, 1255 (11th Cir. 2009). Operating as an exception to the exceptions to the FTCA’s waiver of immunity, the law-enforcement proviso thus authorized suits

against the United States for specified intentional

torts by “extend[ing] the waiver of sovereign immunity” to encompass claims based on law-enforcement officers’ acts or omissions that the intentional-tort and

other exceptions had previously barred. Millbrook,

569 U.S. at 52-53.

The text Congress enacted unambiguously

evinces its intent to encompass wrong-house raids:

The proviso waives sovereign immunity for “any claim

arising * * * out of assault, battery, false imprison-

10

ment, false arrest, abuse of process, or malicious prosecution” based on the “acts or omissions of investigative or law enforcement officers of the United States.”

28 U.S.C. § 2680(h). The proviso squarely targets the

kind of “investigative or law enforcement officers” who

perpetrated the Collinsville raids. Ibid. And it covers

those intentional torts most likely to arise from such

raids.

B. The law-enforcement proviso’s history in Congress confirms that providing redress for victims of

wrong-house raids by federal agents was central to

the statutory design. Echoes of the proviso’s primary

aim arose repeatedly along its path through Congress.

The Senate Committee on Government Operations,

where the law-enforcement proviso originated, reported that “several incidents” had been brought to its

“attention in which Federal narcotics agents engaged

in abusive, illegal and unconstitutional ‘no-knock’

raids.” S. Rep. No. 588, 93d Cong., 1st Sess. 2. The

Committee criticized the lack of “effective legal remedy against the Federal Government for the actual

physical damage, much less the pain, suffering and

humiliation to which the Collinsville families have

been subjected.” Ibid. And it called out the “injustice”

that “under the [FTCA] a Federal mail truck driver

creates direct federal liability if he negligently runs

down a citizen * * * but the Federal Government is

held harmless if a[n] * * * agent intentionally assaults that same citizen in the course of an illegal ‘noknock’ raid in Collinsville.” Id. at 3.

To right these wrongs, the Committee proposed “a

proviso at the end of the intentional torts exception”

that would “deprive” the United States of sovereign

immunity for certain intentional torts by law-

11

enforcement officers. S. Rep. No. 588, 93d Cong., 1st

Sess. 3. That would ensure that “innocent individuals

who are subjected to raids of the type conducted in

Collinsville, Illinois, will have a cause of action

against * * * the Federal Government.” Ibid.

The Committee’s report endorsed concerns expressed by its Subcommittee on Reorganization, Research, and International Organizations, which had

decried the “terrorizing of innocent citizens in * * *

mistaken raids across the Nation” as “a destruction of

fundamental rights and basic safeguards.” S. Rep.

No. 469, 93d Cong., 1st Sess. 28 (1973). Against the

backdrop of the War on Drugs, the subcommittee cautioned that the pursuit “of a drug-free society must not

sacrifice the right to the privacy of one’s home and the

due process of law which comprise the lifeblood of our

free society.” Ibid.

Contemporaneous explanations by the proviso’s

architects tell the same story. Senator Charles Percy,

one of the proviso’s chief proponents, urged that “it

[wa]s now time to amend the [FTCA] so that victims

of deliberate violence and terrorism at the hands of

Federal agents can be better compensated, if only

monetarily, for their losses.” S. Rep. No. 469, 93d

Cong., 1st Sess. 36 (individual views of Senator

Charles H. Percy). The old regime—which left victims

of federal torts to sue officers—was an “empty response” because “it is common knowledge that the

government, the agents’ employer, is in the best financial position to pay a proper judgment.” Ibid.

The proviso’s history thus confirms what any reasonable contemporaneous reader would have recognized: The proviso seeks to make whole victims of fed-

12

eral officers’ torts, including misdirected federal raids

like the ones in Collinsville, by enabling them to bring

actions for damages against the United States.

C. The raid-gone-awry on petitioners’ home in

this case falls squarely in the proviso’s heartland. In

service of a wide-ranging FBI operation targeting a

Georgia-based drug ring, federal agents executed “a

no-knock search warrant” for gang member Joseph Riley, detonating a flashbang grenade and smashing in

the front door of the wrong home. Pet. App. 3a (describing the raid as executing “a no-knock search warrant at” a “house which was not the address identified

in the warrant”). A “loud cannon-type bang” startled

the Martins awake. Pet. App. 7a, 76a. When they realized that intruders had invaded their home, they

bolted to a closet and hid. Pet. App. 3a. “A SWAT

team member located Cliatt [Martin’s cohabitant] and

Martin in their bedroom closet, dragged Cliatt out of

the closet * * * and handcuffed him.” Pet. App. 8a.

“[A]nother * * * pointed a gun in [Martin’s] face while

yelling at her to keep her hands up.” Ibid. When the

officers realized they had the wrong house, they left

without “any explanation.” Pet. App. 80a.

The parallels to the mistaken drug raids in Collinsville are striking. As the two Collinsville families

testified before Congress, “they were terrorized by

gun-wielding * * * intruders who shouted obscenities, destroyed property and threatened their very

lives.” S. Rep. No. 469, 93d Cong., 1st Sess. 21. Realizing their error, the agents “departed as suddenly as

they had arrived without an explanation.” Id. at 22.

As in Collinsville, federal “[n]arcotics agents” here

“used stormtrooper tactics in making [an] unan-

13

nounced and unlawful entr[y] into the dwellin[g] of decent, law-abiding citizens.” Id. at 32.

The Eleventh Circuit’s holding—that petitioners’

FTCA claims based on federal officers’ wrong-house

raid are not cognizable—contravenes Congress’s policy in passing the law-enforcement proviso, which

Congress enacted in response to precisely that kind of

abuse. Whether and to what extent to waive federal

sovereign immunity is a quintessential policy call that

lies within Congress’s exclusive province. See United

States v. Bormes, 568 U.S. 6, 9-10 (2012). Congress’s

judgment to waive immunity for tort claims like those

here should be controlling.

II. THE ELEVENTH CIRCUIT’S DISTORTION OF THE

SUPREMACY CLAUSE UNDERMINES CONGRESS’S

POWER

The Eleventh Circuit’s Supremacy Clause rationale for depriving the law-enforcement proviso of

effect rests on a misapprehension of bedrock constitutional principles. The Supremacy Clause, U.S. Const.

Art. VI, § 2, preserves the efficacy of valid Acts of Congress by making them “supreme” over any other, contrary laws. Yet the Eleventh Circuit construed the

Clause to prevent Congress from providing relief to

victims of wrong-house raids under certain circumstances. That ruling turns the Supremacy Clause on

its ear and unduly constrains Congress’s legislative

authority.

In relevant part, the Supremacy Clause provides

that “[t]his Constitution, and the Laws of the United

States which shall be made in Pursuance thereof * * *

shall be the supreme Law of the Land; and the Judges

in every State shall be bound thereby, any Thing in

14

the Constitution or Laws of any State to the Contrary

notwithstanding.” U.S. Const. Art. VI, § 2. The

Clause enshrines and safeguards Congress’s legislative authority by depriving the States of any “power

* * * to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted

by Congress to carry into execution the powers vested

in the general government.” McCulloch v. Maryland,

17 U.S. (4 Wheat.) 316, 436 (1819). Any state law that

conflicts with federal law is “without effect.” Maryland v. Louisiana, 451 U.S. 725, 746 (1981).

The Supremacy Clause thus strikes a specific

“federal-state balance,” in which federal actions “supersede” inconsistent actions of the States in areas the

Constitution assigns to the federal government’s authority. Hillsborough County v. Automated Medical

Laboratories, Inc., 471 U.S. 707, 713, 717 (1985).

Simply put, the Clause provides a rule of decision for

resolving “federal-state conflict[s].” Geier v. American

Honda Motor Co., 529 U.S. 861, 874 (2000).

The Eleventh Circuit, however, has derived from

that constitutional provision—one that protects Congress’s legislative authority from state interference—

a prohibition on federal statutes that are perceived as

unduly hindering the execution of other federal laws

and functions. That inverted view of the Supremacy

Clause has nothing to commend it.

A. The Eleventh Circuit’s misadventure traces to

Denson v. United States, 574 F.3d 1318 (11th Cir.

2009). The Denson court started from the premise

that the Supremacy Clause bars any state-law claim

that “would impede [a federal] officer from performing

his duties.” Id. at 1346-1347. But the Eleventh Cir-

15

cuit then swerved by construing the Clause to impose

the same constraint on claims under federal law. Despite correctly recognizing that the Clause prescribes

a constitutional standard for judging “whether the

United States is amenable to liability under state

law,” the Eleventh Circuit extended that principle to

hold that the Clause precludes any suit against a federal officer under the FTCA—a federal statute—for

“executing his duties as prescribed by federal law.”

Ibid. The Eleventh Circuit later reaffirmed that rule

in Kordash v. United States, 51 F.4th 1289 (11th Cir.

2022), and applied it to bar liability here, Pet. App.

18a-19a.

The Eleventh Circuit has matters backwards.

The FTCA is indisputably an Act of Congress that the

Supremacy Clause elevates above state law. It is an

exercise of Congress’s plenary “prerogative” to “waive

the federal government’s immunity.” Department of

Agriculture v. Kirtz, 601 U.S. 42, 48 (2024). Nothing

in that Clause constrains Congress’s policy judgment

regarding whether or when to waive immunity. And

because the FTCA is a federal statute, no possible

“conflic[t] between state and federal law” exists that

could implicate the Supremacy Clause. PLIVA, Inc. v.

Mensing, 564 U.S. 604, 620 (2011).

The Eleventh Circuit appears to reason that, because Congress in the FTCA borrowed the substance

of state law, 28 U.S.C. § 1346(b)(1), claims under the

FTCA are therefore state-law claims subject to the Supremacy Clause. Denson, 574 F.3d at 1347. But that

conclusion does not follow. In controversies “governed

by federal law,” federal law may “adopt state law” in

substance, but federal law remains federal. United

States v. Kimbell Foods, Inc., 440 U.S. 715, 727-728

16

(1979). The standard set by “state law” is simply “incorporated as the federal rule of decision.” Ibid. (emphasis added).

That is exactly what the FTCA does by allowing

tort claims against the United States and “incorporat[ing] state tort law into federal law.” Denson,

574 F.3d at 1352 (Carnes, J., concurring). That explains why it is well settled, for example, that an

FTCA claim “aris[es] under” federal law for purposes

of federal-question jurisdiction. 28 U.S.C. § 1331; see,

e.g., Wilson v. United States, 79 F.4th 312, 316 (3d Cir.

2023). In short, while the FTCA assigns liability by

“reference to” state law, Molzof v. United States,

502 U.S. 301, 305 (1992), the FTCA itself is “the supreme Law of the Land” in this domain, U.S. Const.

Art. VI, § 2.

The Supremacy Clause’s only relevance in this setting is ensuring that state law does not frustrate the

FTCA. In Boyle v. United Technologies Corp., 487 U.S.

500 (1988), for example, the Court considered whether

military contractors can be subject to design-defect

suits under state tort law. Id. at 502. The Court observed that “the selection of the appropriate design

for military equipment” falls within the FTCA’s

discretionary-function exception and concluded that

state-law suits based on such conduct are largely “displaced” by the “federal policy” reflected in the FTCA.

Id. at 511-512; see, e.g., Saleh v. Titan Corp., 580 F.3d

1, 7 (D.C. Cir. 2009) (holding that FTCA’s exception

for claims based on combatant activities, 28 U.S.C.

§ 2680(j), preempts state tort claims against military

contractors relating to those activities); Koohi v.

United States, 976 F.2d 1328, 1336-1337 (9th Cir.

17

1992) (same); In re KBR, Inc., Burn Pit Litigation,

744 F.3d 326, 351 (4th Cir. 2014) (similar).

B. The Eleventh Circuit’s rule undercuts the very

primacy of federal law that the Supremacy Clause

seeks to fortify. The Clause armors the federal government’s sovereignty in the areas over which it has

constitutional authority, by “protect[ing] against * * *

[any] ‘obstacle[s] to the effective operation of a federal

constitutional power.’” Trump v. Vance, 591 U.S. 786,

810 (2020) (quoting United States v. Belmont, 301 U.S.

324, 332 (1937)); accord Rockford Life Insurance Co. v.

Illinois Department of Revenue, 482 U.S. 182, 190

(1987) (the Supremacy Clause protects “the Federal

Government’s authority”).

Certainly nothing in the Supremacy Clause precludes Congress from choosing whether and when to

waive the federal government’s sovereign immunity

or from borrowing state law in doing so. The Constitution gives Congress alone the choice whether to

waive sovereign immunity. See Mayo v. United

States, 319 U.S. 441, 446 (1943). And nothing in the

Clause or any other provision of the Constitution forbids Congress from creating federal causes of action

that incorporate state law, as it has done in the FTCA

and a range of other statutes. See, e.g., Parker Drilling Management Services, Ltd. v. Newton, 587 U.S.

601, 610 (2019) (Outer Continental Shelf Lands Act

“borrows * * * certain state laws” “as surrogate federal law” (citation omitted)); Tafflin v. Levitt, 493 U.S.

455, 468 (1990) (White, J., concurring) (RICO). Those

are Congress’s unfettered prerogatives.

Simply put, “[t]he sovereign is sovereign over

questions of sovereign immunity. And the sovereign’s

18

will in this area of the law has been expressed in the

FTCA, which incorporates state tort law as a matter

of federal law.” Denson, 574 F.3d at 1352 (Carnes, J.,

concurring) (emphasis omitted). The Supremacy

Clause should have led the Eleventh Circuit to respect

Congress’s judgment. By instead reading the Supremacy Clause as a constraint on Congress’s authority, the Eleventh Circuit’s rule subverts “the supremacy of the government of the United States in the exercise of all the powers conferred upon it by the constitution.” In re Neagle, 135 U.S. 1, 62 (1890).

C. The Eleventh Circuit’s approach not only distorts the constitutional structure but also frustrates

the FTCA itself. Ordinarily, state laws that impose

liability based on federal officers’ “discharg[e] [of

their] duties under Federal authority” are preempted.

Ohio v. Thomas, 173 U.S. 276, 283 (1899). But when

Congress enacted the FTCA, it authorized a wide

swath of federal claims that borrow state-law rules of

decision for misconduct committed by a federal employee “while acting within the scope of his office or

employment.” 28 U.S.C. § 1346(b)(1). And Congress

instructed that the United States would be liable “in

the same manner and to the same extent as a private

individual under like circumstances.” Id. § 2674; see

also id. § 1346(b)(1); Feres v. United States, 340 U.S.

135, 139-140 (1950) (noting Congress’s desire to remedy “wrongs which would have been actionable if inflicted by an individual or a corporation but remediless solely because their perpetrator was an officer or

employee of the Government”). Accordingly, the

FTCA necessarily authorizes damages liability in

many circumstances even for federal officers’ “performance of ‘uniquely governmental functions,’” because

19

the FTCA “requires a court to look to the state-law liability of private entities, not to that of public entities,

when assessing the Government’s liability.” United

States v. Olson, 546 U.S. 43, 46 (2005) (quoting Indian

Towing Co. v. United States, 350 U.S. 61, 64 (1955)).

Congress’s considered judgment in enacting (and

amending) the FTCA, in short, was to hold federal officers to the same standards as private citizens and

provide accountability for their misconduct—even

misconduct stemming from their performance of their

official duties—except as Congress itself specified.

The Eleventh Circuit’s approach countermands that

judgment. It permits the government to avoid liability, as it did here, by invoking the tortfeasors’ status

as federal officers and asserting that they “acted

within the scope of” their authority. Pet. App. 17a.

The Eleventh Circuit is wrong to misread the Supremacy Clause to restrict Congress’s power to legislate within its constitutional authority, and this Court

should reverse.

III. THE DISCRETIONARY-FUNCTION EXCEPTION DOES

NOT OVERRIDE THE LAW-ENFORCEMENT PROVISO

Eschewing the Eleventh Circuit’s misguided Supremacy Clause approach, the United States instead

defends the judgment on the ground that the FTCA’s

discretionary-function exception cabins claims under

the law-enforcement proviso. See Br. in Opp. 14-21.

As petitioners explain, however, the discretionaryfunction exception, properly understood, shields from

suit officials’ policy judgments, not day-to-day or even

split-second tactical decisions in connection with intentional torts covered by the law-enforcement proviso—even if such decisions involve some modicum

20

of discretion. See Pet. Br. 22-40. But even if the

discretionary-function exception and the proviso conflict, the proviso controls. The Eleventh Circuit has

this point right: Where the law-enforcement proviso

“applies to waive sovereign immunity,” the

discretionary-function exception “is of no effect.”

Nguyen, 556 F.3d at 1256-1257, 1260. Only that interpretation honors the FTCA’s plain text. And only

that view preserves Congress’s legislative intent to afford relief to victims of wrong-house raids and other

intentional torts by federal law enforcement. The government’s position, on the other hand, guts the proviso and nullifies Congress’s legislative solution.

A. The FTCA waives the government’s sovereign

immunity from tort suits based on injuries “caused by

the negligent or wrongful act[s] or omission[s]” of government employees. 28 U.S.C. §§ 1346(b)(1), 2674. It

then limits that waiver through various exceptions set

forth in Section 2680. That section provides that

“[t]he provisions of this chapter”—and of 28 U.S.C.

§ 1346(b), which vests district courts with jurisdiction

over FTCA claims—“shall not apply to” the prescribed

categories of claims. For torts that fall within one of

the exceptions, there is thus no waiver of immunity.

By adding the law-enforcement proviso, however,

Congress re-attached the FTCA’s waiver of immunity

for claims alleging certain intentional torts committed

by law-enforcement officers. 28 U.S.C. § 2680(h).

Congress did so in unmistakable terms, using language that directly mirrors the language it used to establish the exceptions. Section 2680’s preamble negates the FTCA’s immunity waiver by providing that

“[t]he provisions of this chapter and section 1346(b) of

this title shall not apply” to the enumerated exceptions,

21

id. § 2680 (emphasis added); the law-enforcement proviso restores that waiver by providing that “the provisions of this chapter and section 1346(b) of this title

shall apply” to the specific intentional-tort claims encompassed by the proviso, id. § 2680(h) (emphasis

added).

Unable to dispute that the proviso revives claims

otherwise barred by the FTCA’s intentional-tort exception, the government contends that another of the

FTCA’s exceptions—the discretionary-function exception, 28 U.S.C. § 2680(a)—overrides the lawenforcement proviso when they conflict. The discretionary-function exception covers “[a]ny claim * * *

based upon the exercise or performance or the failure

to exercise or perform a discretionary function or duty

* * * , whether or not the discretion involved be

abused.” Ibid. It thus exempts from liability “acts

that are discretionary in nature”—i.e., those that “‘involv[e] an element of judgment or choice.’” United

States v. Gaubert, 499 U.S. 315, 322 (1991) (quoting

Berkovitz v. United States, 486 U.S. 531, 536 (1988)).

The exemption serves “to prevent judicial ‘secondguessing’ of legislative and administrative decisions

grounded in social, economic, and political policy

through the medium of an action in tort.” United States v. S.A. Empresa de Viacao Aerea Rio Grandense

(Varig Airlines), 467 U.S. 797, 814 (1984).

As petitioners explain, the discretionary-function

exception is best construed to apply only to regulatory

policy decisions. Pet. Br. 22-31. The exception thus

does not cover the on-the-spot judgment calls from

which law-enforcement proviso claims typically arise.

Id. at 31-34. Because the discretionary-function exception and the law-enforcement proviso are “capable

22

of co-existence,” it is “the duty of the courts * * * to

regard each as effective.” Radzanower v. Touche Ross

& Co., 426 U.S. 148, 155 (1976) (citation omitted). In

finding conflict where none exists, lower courts have

simply overread the discretionary-function exception.

B. The government also misreads the discretionaryfunction exception to create needless conflict and contends that it supersedes the law-enforcement proviso.

That misreading undercuts Congress’s work no less

than the Eleventh Circuit’s mistaken Supremacy

Clause holding. If the Court adopts or assumes the

government’s view of the discretionary-function exception’s scope, it should hold that the proviso prevails

to the extent of any conflict. That conclusion follows

from the FTCA’s text, structure, and purpose.

1. The language of the law-enforcement proviso is

unequivocal: For “any claim” within its ambit, the

FTCA’s waiver of immunity “shall apply.” 28 U.S.C.

§ 2680(h) (emphases added). Those terms permit no

exceptions. See Patel v. Garland, 596 U.S. 328, 338

(2022) (“any” “has an expansive meaning,” capturing

“one or some indiscriminately of whatever kind” (citations and internal quotation marks omitted)); Murphy

v. Smith, 583 U.S. 220, 223 (2018) (“the word ‘shall’

usually creates a mandate”); see also Bufkin v. Collins, No. 23-713 (U.S. Mar. 5, 2025), slip op. 8 (“‘Shall’

means ‘must.’”). And nothing in the text of the proviso suggests that it is limited by the discretionaryfunction exception.

To be sure, the discretionary-function exception

similarly purports to reach “[a]ny claim” involving a

discretionary function. 28 U.S.C. § 2680(a); see Nguyen,

556 F.3d at 1252 (noting that the “any” in the excep-

23

tion “battles” the “any” in the proviso). For at least

four reasons, however, the law-enforcement proviso’s

categorical terms limit the discretionary-function exception, not the other way around.

First, only the proviso contains language suggesting that it qualifies other parts of Section 2680: “Provided, That, * * * the provisions of this chapter and

section 1346(b) of this title shall apply” to certain acts

or omissions by federal law enforcement. 28 U.S.C.

§ 2680(h). The phrase “Provided, That” introduces a

“condition” or an “exception.” Antonin Scalia & Bryan

A. Garner, Reading Law 154 (2012) (Scalia & Garner).

Thus, while the discretionary-function exception

turns off the FTCA’s waiver of sovereign immunity for

certain claims, the law-enforcement proviso expressly

“condition[s]” that rule when it applies, ibid., and

turns the waiver back on for claims within its ambit.

Second, the proviso’s more specific requirements

should be “construed as an exception to” the discretionary-function exception’s “general” rule. RadLAX

Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S.

639, 645 (2012); accord Scalia & Garner 183. The discretionary-function exception applies generally “to

claims arising from discretionary functions or duties

of federal agencies or employees.” Nguyen, 556 F.3d

at 1253. The law-enforcement proviso, on the other

hand, applies only to “six specified claims arising from

acts of two specified types of government officers.”

Ibid. Thus, while the discretionary-function exception

operates as a “general prohibition” on suits against

the United States based on officials’ discretionary

acts, the law-enforcement proviso acts as a “specific

permission” for a subset of intentional-tort claims

against a limited set of officials. Scalia & Garner 183.

24

This is the “most common example of irreconcilable

conflict—and the easiest to deal with,” ibid.: The “specific provision controls over one of more general application,” Gozlon-Peretz v. United States, 498 U.S. 395,

407 (1991). The “general/specific canon” is a “strong

indication of statutory meaning” and helps

“avoi[d] * * * the superfluity of a specific provision

that is swallowed by the general one.” RadLAX, 566

U.S. at 645-646. That rationale applies squarely here:

The government’s reading of the discretionary-function exception would render the law-enforcement proviso largely superfluous and nullify it in its core application. See infra pp. 25-26.

To be sure, not all intentional torts necessarily

“implicate discretionary functions.” Br. in Opp. 18.

But the general-specific canon is not “confined to situations in which the entirety of the specific provision is

a ‘subset’ of the general one.” RadLAX, 566 U.S. at

648 (emphasis added). “When the conduct at issue

falls within the scope of both provisions, the specific

presumptively governs, whether or not the specific

provision also applies to some conduct that falls outside the general.” Ibid. (emphasis altered). That rule

reflects a presumption that Congress “targeted specific problems with specific solutions.” Id. at 645 (citation omitted). And it applies with special force

where, as here, the putatively conflicting provisions

“are interrelated and closely positioned, both in fact

being parts of” the same statutory section. HCSCLaundry v. United States, 450 U.S. 1, 6-7 (1981).

There can be no serious dispute that the law-enforcement proviso—not the discretionary-function exception—embodies the more specific policy judgment

Congress made for the particular problem of wrong-

25

house raids. Thus, to the extent the discretionaryfunction exception conflicts with the proviso, “the proviso wins.” Nguyen, 556 F.3d at 1253.

Third, Congress enacted the law-enforcement proviso after the discretionary-function exception. An

older statute “may be altered by the implications of a

later statute,” even if the newer statute has not “expressly amended” the earlier provision. FDA v. Brown

& Williamson Tobacco Corp., 529 U.S. 120, 143 (2000)

(citations omitted). And courts must give effect to “the

plain import of a later statute” when it “directly conflicts with an earlier statute.” Dorsey v. United States,

567 U.S. 260, 274 (2012) (citation omitted); accord

Scalia & Garner 185 (“[A] later-enacted statute that

contradicts an earlier one effectively repeals it” to the

extent they conflict.). That is “particularly so where

the scope of the earlier statute is broad but the subsequent statut[e] more specifically address[es] the topic

at hand.” Brown & Williamson, 529 U.S. at 143. The

proviso was added to the FTCA in 1974—nearly thirty

years after the discretionary-function exception was

enacted as part of the original FTCA in 1946. Nguyen,

556 F.3d at 1253. Thus, the proviso is best read to

“control [the] construction of” the discretionary-function exception. Brown & Williamson, 529 U.S. at 143

(citation omitted).

Fourth, and perhaps most fundamentally, applying the discretionary-function exception to cabin the

law-enforcement proviso would nullify its effect in its

heartland case. The “presumption against ineffectiveness,” however, “weighs against interpretations of a

statute that would ‘rende[r] the law in a great measure nugatory.’” Garland v. Cargill, 602 U.S. 406, 427

(2024) (brackets in original; citation omitted). As ex-

26

plained above, Congress enacted the proviso in response to the Collinsville raids and to address the lack

of an “effective legal remedy against the Federal Government for the actual physical damage, much less

the pain, suffering and humiliation to which the Collinsville families [were] subjected.” S. Rep. No. 588,

93d Cong., 1st Sess. 2.

That central purpose would be frustrated entirely

if the discretionary-function exception supersedes the

law-enforcement proviso. If the exception covers any

action involving “an element of judgment or choice,”

Br. in Opp. 9 (citation omitted), it is hard to “conceive

of a circumstance in which the conduct of the agents

in * * * Collinsville would not involve discretionary

functions,” Sutton v. United States, 819 F.2d 1289,

1297 (5th Cir. 1987). On the government’s view,

therefore, an earlier-enacted provision of a statute

renders nugatory a separate, later-enacted provision

of the same statute in the core case it was enacted to

address. Indeed, law-enforcement officers committing

any of the torts specified in the law-enforcement proviso—e.g., assault, battery, malicious prosecution,

and false arrest—will likely often assert that in doing

so they exercised tactical discretion and on-the-spot

judgment. The government’s view that the discretionary-function exception takes precedence over the lawenforcement proviso thus threatens to swallow much

of the proviso even beyond wrong-house raid cases.

2. In its brief in opposition to certiorari, the government sought to narrow the law-enforcement proviso’s text by invoking a purported “‘presumption’”

that a proviso “refer[s] only to things covered by the

preceding clause.” Br. in Opp. 15 (quoting United

States v. Morrow, 266 U.S. 531, 535 (1925); citing

27

Scalia & Garner 154). But the government’s own cited

authority recognizes that any such presumption “has

become a feeble” one because it no longer accurately

reflects how Congress and other authors actually

write. Scalia & Garner 154. “One now often finds provided that introducing not a condition to an authorization or imposition, but an exception to it,” and “the

authorization or imposition that it modifies is often

found not immediately before but several clauses earlier.” Ibid.

This Court has made the same point. A “proviso

is not always limited in its effect to the part of the enactment with which it is immediately associated; it

may apply generally to all cases within the meaning

of the language used.” Alaska v. United States, 545

U.S. 75, 106 (2005) (citation omitted); see also Republic of Iraq v. Beaty, 556 U.S. 848, 858 (2009) (“Use of a

proviso ‘to state a general, independent rule’ * * * is

hardly a novelty.” (citation omitted)). That is the case

here. The law-enforcement proviso’s text speaks

broadly, stating the general rule that “the provisions

of this chapter” shall apply to “any claim” covered by

its terms. 28 U.S.C. § 2680(h). And as petitioners explain, if the proviso did modify only the intentionaltort exception, that would merely evince Congress’s

view that the discretionary-function exception does

not apply at all to claims arising from intentional torts

by law-enforcement officers. See Pet. Br. 22.

The government has identified no other plausible

textual basis for elevating the discretionary-function

exception over the proviso. It contends (Br. in Opp.

16), for example, that the proviso is “link[ed]” exclusively to the intentional-tort exception because Section 2680(h) defines the phrase “investigative or law

28

enforcement officer” only “[f]or the purpose of this subsection,” 28 U.S.C. § 2680(h). But the definition

merely explains the meaning of a term used in the proviso. It has no bearing on how the proviso interacts

with other statutory subsections.

The government’s other textual arguments fare no

better. It adds that, by referring to “the provisions of

Chapter 171,” the law enforcement proviso makes the

entire FTCA—including its exceptions—applicable to

claims covered by the proviso. Br. in Opp. 16. But

that illogical reading ignores the rest of Section 2680’s

text, which makes clear that the proviso’s reference to

“the provisions of this chapter” means the other provisions of the FTCA (28 U.S.C. §§ 2671 et seq.) that Section 2680’s exceptions render inapplicable, not Section 2680’s exceptions themselves.

Section 2680 prefaces its exceptions by stating

that “[t]he provisions of this chapter”—most prominently, the FTCA’s waiver of immunity, 28 U.S.C.

§ 2674—“shall not apply” to the enumerated exceptions. Id. § 2680 (emphasis added). The law-enforcement proviso negates those exceptions for claims

within the proviso’s scope by stating that the “provisions of this chapter * * * shall apply.” Id. § 2680(h)

(emphasis added). That obvious symmetry in close

proximity shows that the prefatory language and the

proviso both refer to the same suite of other FTCA provisions, not the exceptions themselves. The government’s contrary reading, by contrast, imputes to Congress the improbable intent to incorporate the FTCA’s

exceptions to its waiver of immunity in a proviso

crafted to restore that very waiver and would require

the phrase “provisions of this chapter” to take two different meanings in the same statutory section. See

29

Gustafson v. Alloyd Co., 513 U.S. 561, 568 (1995)

(“[W]e adopt the premise that [a] term should be construed, if possible, to give it a consistent meaning

throughout the Act.”). That cannot be right.

Finally, contrary to the government’s contention,

petitioners’ view of the law-enforcement proviso

would not undercut the FTCA’s other exceptions. Br.

in Opp. 16. The only example the government offered

at the petition stage (ibid.)—the FTCA’s exception for

claims arising in a foreign country, 28 U.S.C.

§ 2680(k)—presents no problem of intractable conflict

with the law-enforcement proviso. Given the strong

presumption against extraterritoriality, any conflict

with the foreign-country exception would likely be resolved in favor of that exception in any event.

Whereas the foreign-country exception plainly applies

to foreign torts, the proviso’s “silence” as to “extraterritorial application” means that it has none. Morrison

v. National Australia Bank Ltd., 561 U.S. 247, 261

(2010).

*****

The FTCA’s text is clear: The law-enforcement

proviso reinstates the waiver of immunity for claims

it covers irrespective of the discretionary-function exception. And the mischief that prompted Congress to

enact the proviso renders that conclusion clearer still.

If the victims of a wrong-house raid just like the ones

in Collinsville cannot obtain relief, little remains of

the law-enforcement proviso. This Court should not

“lightly assume that Congress’s mighty labors

brought forth such a mouse.” United Federation of

Postal Clerks, AFL-CIO v. Watson, 409 F.2d 462, 468

(D.C. Cir. 1969).

30

CONCLUSION

The judgment of the court of appeals should be

reversed.

Respectfully submitted.

JONATHAN C. BOND

JEFF LIU

Counsel of Record

LAVI M. BEN DOR

ALEXI T. EHRLICH

T. HUNTER MASON

GIBSON, DUNN & CRUTCHER LLP

1700 M Street, N.W.

Washington, D.C. 20036-4504

(202) 955-8500

jyliu@gibsondunn.com

Counsel for Amici Curiae

March 14, 2025

APPENDIX

Table of Contents

List of Amici Curiae ....................................... App. 1a

App. 1a

LIST OF AMICI CURIAE

The following Members of Congress respectfully

submit the foregoing brief as amici curiae.

Rep. Harriet Hageman

(R-WY-AL)

Sen. Rand Paul

(R-KY)

Rep. Nikema Williams

(D-GA-5)

Sen. Ron Wyden

(D-OR)

Rep. Thomas Massie

(R-KY-4)

Sen. Cynthia M. Lummis

(R-WY)

Sen. Raphael Warnock

(D-GA)