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, 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 THE NATIONAL POLICE

ACCOUNTABILITY PROJECT AND

THE RUTHERFORD INSTITUTE

AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

EUGENE R. FIDELL

CHARLES A. ROTHFELD

Yale Law School

Counsel of Record

Mayer Brown LLP

Supreme Ct. Clinic

1999 K Street, NW

127 Wall Street

New Haven, CT 06511 Washington, DC 20006

(202) 263-3000

crothfeld

@mayerbrown.com

Counsel for Amici Curiae

(Additional counsel listed inside cover)

JOHN W. WHITEHEAD

WILLIAM E. WINTERS

The Rutherford

Institute

109 Deerwood Road

Charlottesville, VA

22911

LAUREN BONDS

KEISHA JAMES

National Police Accountability Project

1403 Southwest Blvd

Kansas City, Kansas

66103

PAUL W. HUGHES

McDermott Will &

Emery LLP

500 N. Capitol St., NW

Washington, DC 20001

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TABLE OF CONTENTS

Page

Interest of the Amici Curiae ................................. 1

Introduction and Summary of Argument ............ 2

Argument .............................................................. 4

I.

Wrong-address home raids cause

enormous harm to blameless victims. ........... 4

A. High-profile wrongful-raid cases

involving federal officers illustrate

the lasting harm caused by such

errors. ...................................................... 4

B. Wrong-address home raids are

common and highly dangerous. ............ 10

C. Wrong-address home raids create

a need for legal redress. ........................ 14

II. Requiring claims arising out of the law

enforcement proviso to clear the

discretionary-function hurdle would

effectively bar those claims. ......................... 15

A. Congress enacted the law

enforcement proviso to provide a

remedy to victims of mistaken

police raids. ........................................... 16

B. Lower courts historically

interpreted the law enforcement

proviso and discretionary-function

exception harmoniously. ....................... 18

C. The Government’s rule would bar

nearly all claims arising from the

law enforcement proviso. ...................... 19

ii

TABLE OF CONTENTS—continued

Page

III. Holding the government liable for

intentional torts committed by law

enforcement officers will advance the

goals of the FTCA. ........................................ 22

A. Government liability under the

FTCA for wrong-house raids will

not discourage law enforcement

officers from vigorous performance

of their jobs. ........................................... 22

B. FTCA liability gives the

government an incentive to

prevent tortious acts. ............................ 25

Conclusion ........................................................... 28

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Adams v. Springmeyer,

Civil Action No. 11-790, 2012 WL

1865736 (W.D. Pa. May 22, 2012) ......................... 7

Atkins v. City of Carrollton,

Civil Action No. 95–CV–1424, 1997

WL 160297 (N.D.Tex. Mar. 27, 1997).................... 7

Awad v. United States,

807 F. App’x 876 (10th Cir. 2020)........................ 21

Bravo v. City of Santa Maria,

665 F.3d 1076 (9th Cir. 2011) .............................. 14

Caban v. United States,

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

Campos v. United States,

888 F.3d 724 (5th Cir. 2018) .......................... 20, 22

Carter v. United States,

725 F. Supp. 2d 346 (E.D.N.Y. 2010),

aff'd in part, rev'd in part, 494 F.

App’x 148 (2d Cir. 2012) ............................ 4, 5, 6, 7

Castro v. United States,

34 F.3d 106 (2d Cir. 1994) ..................................... 6

Chidester v. Utah County,

268 F. App’x 718 (10th Cir. 2008)........................ 10

iv

TABLE OF AUTHORITIES—continued

Page(s)

Diaz-Nieves v. United States,

29 F. Supp. 3d 71 (D.P.R. 2014) .......................... 10

Elder v. Holloway,

510 U.S. 510 (1994) .............................................. 23

Florida v. Jardines,

569 U.S. 1 (2013) .................................................. 14

Fullard v. City of Philadelphia,

No. CIV. A. 95-4949, 1996 WL

195388 (E.D. Pa. Apr. 22, 1996) .......................... 10

Gray v. Bell,

712 F.2d 490 (D.C. Cir. 1983) .............................. 19

Hart v. United States,

630 F.3d 1085 (8th Cir. 2011) .............................. 20

Hudson v. Michigan,

547 U.S. 586 (2006) .............................................. 15

Hunter v. Bryant,

502 U.S. 224 (1991) .............................................. 23

Jamar v. United States,

Civil Action No. CV-08-S-1145, 2009

WL 10703417 (N.D. Ala. Aug. 28,

2009) ....................................................................... 8

Jimerson v. Lewis,

94 F.4th 423 (5th Cir. 2024) .............................. 5, 6

v

TABLE OF AUTHORITIES—continued

Page(s)

Kerns v. United States,

No. CV-04-01937, 2007 WL 552227

(D. Ariz. Feb. 21, 2007), rev’d and

remanded, No. 07-15769, 2009 WL

226207 (9th Cir. Jan. 28, 2009) ........................... 10

Kyllo v. United States,

533 U.S. 27 (2001) ................................................ 15

McElroy v. United States,

861 F. Supp. 585 (W.D. Tex. 1994) .................... 6, 7

Mesa v. United States,

123 F.3d 1435 (11th Cir. 1997) ............................ 21

Mesa v. United States,

837 F. Supp. 1210 (S.D. Fla. 1993),

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

Miller v. United States,

357 U.S. 301 (1958) .............................................. 15

Milligan v. United States,

670 F.3d 686 (6th Cir. 2012) ................................ 20

Mynatt v. United States,

45 F.4th 889 (6th Cir. 2022) ................................ 20

Nieves Martinez v. United States,

997 F.3d 867 (9th Cir. 2021) .......................... 20, 22

Penate v. Sullivan,

73 F.4th 10 (1st Cir. 2023) ................................... 15

vi

TABLE OF AUTHORITIES—continued

Page(s)

Phelps v. City of Ecorse,

No. CIV. 09-12311, 2010 WL 728782

(E.D. Mich. Feb. 25, 2010) ..................................... 9

Pooler v. United States,

787 F.2d 868 (3d Cir. 1986),

abrogated by Millbrook v. United

States, 569 U.S. 50 (2013) .................................... 19

Powell v. Nunley,

682 F. Supp. 2d 1260 (W.D. Okla.

2010) ....................................................................... 5

Reynolds v. United States,

549 F.3d 1108 (7th Cir. 2008) .............................. 20

Shuler v. United States,

531 F.3d 930 (D.C. Cir. 2008) .............................. 20

Silverman v. United States,

365 U.S. 505 (1961) .............................................. 15

Solis v. City of Columbus,

319 F. Supp. 2d 797 (S.D. Ohio 2004)

................................................................ 8, 9, 13, 15

Suter v. United States,

441 F.3d 306 (4th Cir. 2006) ................................ 20

Sutton v. United States,

819 F.2d 1289 (5th Cir. 1987) .............................. 18

vii

TABLE OF AUTHORITIES—continued

Page(s)

Wright v. United States,

719 F.2d 1032 (9th Cir. 1983) .............................. 19

Statutes

28 U.S.C. § 2680(h).................................................... 23

42 U.S.C. § 1983 .......................................................... 6

Other Authorities

American Civil Liberties Union, War

Comes Home: The Excessive

Militarization of American Police

(June 23, 2014),

https://perma.cc/3G8Y-ZB4B ............................... 14

Radley Balko, Overkill: The Rise of

Paramilitary Police Raids in

America, Cato Institute (July 17,

2006) ..................................................................... 13

Sean Campbell, This Cop Unleashed a

Reign of Terror, Say the Wrongfully

Accused, Rolling Stone (Apr. 9,

2023), https://perma.cc/S2S7-AU9D .................... 12

viii

TABLE OF AUTHORITIES—continued

Page(s)

Anthony P. Chiarlitti, Civil Liability

and the Response of Police Officers:

The Effect of Lawsuits on Police

Discretionary Actions (Aug. 2016)

(doctoral dissertation, St. John

Fischer University),

https://perma.cc/J7YQ-9NCM.............................. 24

Michael D. Contino & Andreas

Kuersten, Cong. Rsch. Serv.,

R45732, The Federal Tort Claims Act

(FTCA): A Legal Overview (2023) ........................ 25

Michael Cooper, Raids, and Complaints,

Rise as City Draws on Drug Tips,

N.Y. Times, May 26, 1998...................................... 8

Maria Cramer, Chicago Woman Who

Was Handcuffed Naked Receives

$2.9 Million Settlement, New York

Times (Dec. 15, 2021),

https://perma.cc/F96K-6MWA ............................. 12

Brian Dolan, To Knock or Not to Knock?

No-Knock Warrants and

Confrontational Policing, 93 St.

John’s L. Rev. 201 (2019) ..................................... 12

ix

TABLE OF AUTHORITIES—continued

Page(s)

Nicole Dungca & Jenn Abelson, NoKnock Raids Have Led to Fatal

Encounters and Small Drug

Seizures, Washington Post (Apr. 15,

2022), https://perma.cc/E4L6-5UBF ........ 11, 12, 14

Tom Finnegan, Wrong-House Bust

Brings Suit; A Kauai Couple Claims

They Were Manhandled in Their

Home by Officers Looking for

Marijuana, Honolulu Star-Bulletin

(Jan. 12, 2006) ...................................................... 12

Arthur H. Garrison, Law Enforcement

Civil Liability Under Federal Law

and Attitudes on Civil Liability: A

Survey of University, Municipal and

State Police Officers, 18 Police Stud.

Int’l Rev. Police Dev. 19 (1995)............................ 24

Hearings on Reorganization Plan No. 2

of 1973 Before the Subcomm. on

Reorganization, Rsch., and Int'l

Orgs. of the Senate Comm. on Gov't

Operations, 93d Cong. 461 (1973) ................. 16, 17

Stephen Hiltner, How a Grenade in a

Playpen Led to an Investigative

Project, New York Times (Mar. 18,

2017), https://perma.cc/29US-38NP .................... 11

x

TABLE OF AUTHORITIES—continued

Page(s)

Charlie Leduff, What Killed Aiyana

Stanley-Jones, Mother Jones

(Nov./Dec. 2010),

https://perma.cc/9ND2-W63C ................................ 8

Kenneth J. Novak et al., Strange

Bedfellows: Civil Liability and

Aggressive Policing, 26 Policing: Int’l

J. Police Strategies & Mgmt. 352

(2003) .................................................................... 24

James E. Pfander, et al., The Myth of

Personal Liability: Who Pays When

Bivens Claims Succeed, 72 Stan. L.

Rev. 561 (2020) ..................................................... 25

Graham Rayman, Tracking Errors;

Board Asked to Focus on Wrong-Door

Raids, Newsday, June 12, 2003 .......................... 10

Lawrence Rosenthal, A Theory of

Governmental Damages Liability:

Torts, Constitutional Torts, and

Takings, 9 U. Pa. J. Const. L. 797

(2007) .................................................................... 26

Kevin Sack, Door-Busting Drug Raids

Leave a Trail of Blood, New York

Times (Mar. 18, 2017),

https://perma.cc/Q7E7-EVQB .................. 11, 12, 14

xi

TABLE OF AUTHORITIES—continued

Page(s)

Dave Savini, Samah Assad & Michele

Youngerman, ‘They Had The Guns

Pointed At Me;’ Another Chicago

Family Wrongly Raided, Just 1

Month After Police Created Policy To

Stop Bad Raids, CBS News (June

10, 2020), https://perma.cc/V23FFF28 ..................................................................... 14

Peter H. Schuck, Suing Government:

Civilian Remedies for Official

Wrongs (1983)....................................................... 26

Joanna C. Schwartz, Police

Indemnification, 89 N.Y.U. L. Rev.

885 (2014) ............................................................. 25

Joanna C. Schwartz, What Police Learn

from Lawsuits, 33 Cardozo L. Rev.

841 (2012) ............................................................. 27

INTEREST OF THE AMICI CURIAE1

The National Police Accountability Project

(NPAP) was founded in 1999 to address allegations of

misconduct by law-enforcement officers and their employers. NPAP’s approximately six hundred attorney

members practice in every region of the United States,

litigating the thousands of egregious cases of law enforcement abuse that do not make news headlines as

well as the high-profile cases that capture national attention. It provides training and support for these attorneys and other legal workers, public education and

information on issues related to law enforcement misconduct and accountability, and resources for nonprofit organizations and community groups involved

with victims of such misconduct. NPAP also supports

legislative efforts aimed at increasing law enforcement and detention facility accountability, and appears regularly as amicus curiae in cases such as this,

that present issues of particular importance for its

member lawyers and their clients.

The Rutherford Institute is a nonprofit civil liberties organization headquartered in Charlottesville,

Virginia. Founded in 1982 by its President, John W.

Whitehead, the Institute provides legal assistance at

no charge to individuals whose constitutional rights

have been threatened or violated and educates the

public about constitutional and human rights issues

affecting their freedoms. The Rutherford Institute

works tirelessly to resist tyranny and threats to freedom by seeking to ensure that the government abides

Pursuant to this Court’s Rule 37.6, amici state that no counsel

for a party authored this brief in whole or in part and that no

person other than amici or their counsel made a monetary contribution to its preparation or submission.

1

2

by the rule of law and is held accountable when it infringes on the rights guaranteed by the Constitution

and laws of the United States.

Because this case involves the proper remedy for

law enforcement misconduct, an area in which amici

have significant experience and a deep interest, they

submit this brief to assist the Court in the resolution

of this case.

INTRODUCTION AND

SUMMARY OF ARGUMENT

This case involves a violent and destructive search

of the wrong house conducted by federal law enforcement officers. Although the search caused significant

injury to innocent persons, the court below dismissed

the plaintiffs’ action under the Federal Tort Claims

Act (FTCA), using a standard that will make it virtually impossible for those injured by federal law enforcement errors to obtain a remedy. That decision

should not stand. Law enforcement misconduct of the

sort committed in this case is alarmingly frequent and

enormously harmful. For that reason, Congress enacted the so-called law enforcement proviso to the

FTCA, seeking to allow for liability in just these circumstances. There is a compelling reason for liability

in such cases: to incentivize federal law enforcement

officers and their supervisors to limit abusive police

acts.

I. Wrong-house searches and similar errors by law

enforcement officers—including, as in this case, federal officers—occur frequently, as documented by judicial decisions and news reports of such actions.

These mistakes often cause profound physical and

psychological damage to the victims. It is imperative

3

that there be a meaningful remedy under the FTCA

for this sort of harm.

II. Requiring that claims challenging law enforcement misconduct survive application of the FTCA discretionary-function exception would effectively bar

such claims entirely. Congress adopted the FTCA law

enforcement proviso with this precise concern in

mind: it wanted to provide victims of mistaken police

raids—like the one at issue here—with an effective legal remedy. Shortly after adoption of the proviso,

lower courts interpreted it in a manner consistent

with this statutory purpose, rejecting the Government’s early attempts to use the discretionary-function exception to evade the proviso’s meaning. But

many lower courts have since expanded the discretionary-function exception to include nearly all law

enforcement activities, including investigatory decisions, the timing of arrests, and how to execute a warrant. That reading, urged by the government, would

preclude liability for federal law enforcement misconduct in all but the most egregious cases, frustrating

the clear congressional intent.

III. FTCA liability in this case is not only compelled by the congressional purpose, but also advances

effective law enforcement policy and training. The

Court has found qualified immunity for individual law

enforcement officers to be justified on the ground that

personal liability may chill an officer's exercise of lawful and legitimate authority. But that concern does

not arise under the FTCA because the statute subjects

the United States—not individual officers—to liability for tortious behavior. At the same time, imposing

liability on the government for torts committed by law

enforcement officers gives federal officials an

4

incentive to adopt policies and practices that will prevent wrongful police behavior.

ARGUMENT

I.

Wrong-address home raids cause enormous

harm to blameless victims.

The need for an effective remedy with which to

challenge wrong-address home raids is compelling:

such raids, which occur with alarming frequency, may

turn into nightmarish assaults on unsuspecting families who are often asleep when heavily armed federal

agents storm their homes. For the victims, the experience causes serious damage and leaves lasting scars.

A. High-profile wrongful-raid cases involving federal officers illustrate the lasting

harm caused by such errors.

Wrong-address raids inflict devastating harm, as

shown by the following sampling of such cases:

1. A representative example is Carter v. United

States, 725 F. Supp. 2d 346 (E.D.N.Y. 2010), aff'd in

part, rev'd in part, 494 F. App’x 148 (2d Cir. 2012).

Here, an employee of the United States Postal Service

negligently transcribed her handwritten notes identifying a location in New York City to be searched. Id.

at 350. Four federal officers executed a warrant for

Kinte Carter at the home of Lillian Carter and her

family. Id. at 351. But Kinte Carter was completely

“unknown to Lillian * * * and had never been in their

home.” Id. Nevertheless, in the early morning hours

the officers pounded on Lillian’s door and then

searched her house, room by room. Lillian, “honestly—although incorrectly—believed that one of the

officers had a gun to her back throughout the search.”

Ibid. At trial, the medical experts presented by the

5

United States and Lillian agreed that Lillian suffered

PTSD from the raid. The Court found “the incident

was, and continues to be, a principal cause of her

PTSD and its negative effect on her quality of life.”

725 F. Supp. 2d at 352. Lillian remained terrified that

her family might be harmed. Ibid.

In Lillian Carter’s case, the officers knocked before entry. More often, wrong-address home raids result from no-knock warrants, which deprive the victims of any chance to correct the mistake; these raids

catch victims in private moments and intimate settings. In Powell v. Nunley, for example, a federal

agent and local police captain used a rough description to identify 110 W. Osage as the location to be

searched. 682 F. Supp. 2d 1260, 1264–1265 (W.D.

Okla. 2010). But they then mistook 106 W. Osage for

110 W. Osage. Id. at 1265. The tactical team “broke

open the front door” with firearms drawn and shouted

instructions for the warrant’s intended subject. Ibid.

Instead, they found Mr. and Ms. Powell, “in bed, unclothed and asleep.” Ibid. The couple was held naked

at gunpoint until the officers realized they had invaded the wrong house. Only then were the Powells

permitted to don their clothes. Ibid.

Similarly, in Jimerson v. Lewis, Drug Enforcement Administration agents partnered with a local

SWAT (Special Weapons and Tactics) team in Texas

to execute a search warrant on a suspected methamphetamine stash house with a street number of 573,

but the SWAT team commander recklessly led officers

to house number 583 and then to 593, where officers

deployed a flashbang grenade, broke the front windows, and breached the door of a home belonging to

Karen Jimerson, James Parks, and their two young

sons and daughter. 94 F.4th 423, 425-27 (5th Cir.

6

2024) (involving a 42 U.S.C. § 1983 claim against the

local SWAT team commander). Officers began a protective sweep and told two family members to get on

the ground before officers realized it was the wrong

house. Id. at 427. An internal investigation by the local police department determined that “‘reasonable

and normal protocol was completely overlooked,’” and

the SWAT team commander was suspended for two

days without pay. Ibid.

And in Castro v. United States, federal and state

agents conducted a narcotics raid on the home of an

elderly widow, Maria Castro, in Amsterdam, New

York. 34 F.3d 106 (2d Cir. 1994). After searching her

person, the agents toppled furniture, stripped mattresses, and emptied containers throughout her apartment. Id. at 107. Castro reported she “became frightened, experienced heart palpitations and was subjected to extreme embarrassment, humiliation, and

social opprobrium.” Ibid.

A wrong-address raid can even occur after federal

agents have executed the warrant at the correct location. In McElroy v. United States, federal agents, local

officers, and a SWAT team executed a no-knock warrant at 6:00 a.m. in Travis County, Texas. 861 F.

Supp. 585, 588 (W.D. Tex. 1994). The task force

“rammed through the castle doors” of George Rodriguez’s apartment. During the subsequent sweep, the

officers noticed another side of the building, and—despite finding there were no internally connecting

doors—took the battering ram to the second entrance.

Ibid. But the building was a duplex, and Steve

McElroy, who lived on the other side, had “no connection” to Rodriguez. Ibid. McElroy had lived in the adjoining property through the entirety of the federal investigation. Ibid.

7

McElroy awoke to “terrifying sounds of crashing

and screaming” and thought “his neighbors were being murdered.” McElroy, 861 F. Supp. at 588. He assumed he would have to flee “to save his own life.”

Ibid. But before he could escape, the SWAT team

“poured into the foyer and pounced on him,” “ripp[ing]

out some of his artificially implanted hair” and

“pinn[ing] him to the floor with a gun to his head.” Id.

at 589. When McElroy, “obviously terrified,” implored

the black-clad figures to identify themselves, “they answered with nonresponsive obscenities.” Ibid.

Some mistaken addresses are divided by time rather than walls. See, e.g., Adams v. Springmeyer, Civil

Action No. 11-790, 2012 WL 1865736 (W.D. Pa. May

22, 2012). In Adams, a federal/local task force executed a no-knock warrant on a property where the target had not resided for nearly two years. Id. at *1. After breaking down the door, the officers forced plaintiffs—including seven minor children—outside into

the “freezing cold” with profanities and assault weapons. Id. at *2, *13.2

These wrong-address raids may be based on information that is known to be unreliable, or may even

occur despite an informant’s cautions. See, e.g., Michael Cooper, Raids, and Complaints, Rise as City

Draws on Drug Tips, N.Y. Times, May 26, 1998, at B5

(a “wrong door” raid on an elderly couple following an

unverified tip from an informant with an accuracy

2 For an analogous case involving only state officers, see Atkins

v. City of Carrollton, Civil Action No. 95–CV–1424, 1997 WL

160297 (N.D.Tex. Mar. 27, 1997) (failing to verify the address,

police raided the Atkins home seeking a prior resident and forced

at gunpoint Angela Mow Atkins—then seven months pregnant—

to the floor on her stomach.)

8

record of only 44% genuine tips); Charlie Leduff, What

Killed Aiyana Stanley-Jones, Mother Jones (Nov./Dec.

2010), https://perma.cc/9ND2-W63C (police shot and

killed a seven-year-old child in a raid on the wrong

apartment, despite the informant warning that children lived in the general vicinity and police finding

toys strewn about the lawn).

These botched home raids can inflict grievous

harms. Kenneth Wayne Jamar suffered “severe personal injuries” after federal agents directed a SWAT

team to his home at 13889 Honey Way, rather than

13355, in Madison, Alabama. Jamar v. United States,

Civil Action No. CV-08-S-1145, 2009 WL 10703417, at

*1, *6 (N.D. Ala. Aug. 28, 2009). The SWAT team battered into Jamar’s home with assault weapons and

protective combat gear. The officers firing at the

plaintiff in his bed delivered “life-threatening gun

shot wounds.” Id. at *7. Jamar alleged injuries of “several gun shot wounds to his body; surgical intervention and repairs; loss and removal of his genitalia; permanent physical injuries; past medical bills and costs;

and, pain and suffering, mental anguish, emotional

distress, and loss of the enjoyment of life.” Ibid. He

also suffered damage to his home and personal property and faced daunting future medical costs. Ibid.

2. Federal courts have recognized the danger of

no-knock raids executed at incorrect addresses. In

Solis v. City of Columbus, for instance, the Southern

District of Ohio noted over a hundred newspaper articles over a four-year period involving federal no-knock

warrants, each “recounting no-knock horror stories.”

319 F. Supp. 2d 797, 807 (S.D. Ohio 2004). The court

9

identified an array of news stories3 and cases4 involving federal and local law enforcement involved in

wrong-address home raids.5

3 The Solis court detailed instances including a California man

“shot 15 times before either he or his wife knew who was breaking into their home or why;” “[an] innocent woman and her 15year-old daughter who were forced to kneel, in handcuffs, in their

underwear for 45 minutes during [a] no-knock raid of their

home”; and “several [other] incidents * * * ending in tragedy.”

319 F. Supp. 2d at 807-808. The court cites “law enforcement officials in North Carolina and New Mexico as saying that raids of

incorrect houses happen ‘every day in this business’ and ‘all the

time.’” Id. at 808 (citing Joe Hallinan, Drug Wars: Fervor Often

Injures the Innocent, New Orleans Times-Picayune, Sept. 26,

1993, at A20).

4 In Solis itself, the Columbus SWAT team executed a search

warrant on the wrong house after failing to corroborate the informant’s tip. 319 F. Supp. 2d at 800 (“Looking at the houses, Cox

realized that the house described in his search warrant affidavit

might not be the house that was described to him by the confidential informant.”). In the targeted home were the eight-and-ahalf-months-pregnant Nicole Solis and her twelve-year-old

daughter Carmen. The SWAT team detonated a “flashbang,” and

upon entering, “held guns to Nicole and Carmen Solis’s heads,

forced them to the ground, handcuffed them, and subjected them

to verbal abuse.” Ibid. They were “eventually permitted to kneel.”

Ibid. The Solis court then identified a half dozen cases that “addressed factual situations that bear uncanny resemblance to the

facts here.” Id. at 808.

5 State and local officers have also been involved in numerous

cases with wrong-address raids that did not involve federal officers. See, e.g., Phelps v. City of Ecorse, No. CIV. 09-12311, 2010

WL 728782 (E.D. Mich. Feb. 25, 2010) (describing how police confused the third and fourth dwelling on Jefferson Street);

Chidester v. Utah County, 268 F. App’x 718 (10th Cir. 2008) (describing how police tackled the target’s next-door neighbor); Fullard v. City of Philadelphia, No. CIV. A. 95-4949, 1996 WL 195388

10

Federal officers have also made mistakes that are

closely analogous to wrong-address raids after misidentifying the named individuals on search warrants.

See, e.g., Diaz-Nieves v. United States, 29 F. Supp. 3d

71, 73-74 (D.P.R. 2014) (describing an instance when,

after mistaking the target individual, officers conducted a 4:00 a.m. wrong-house raid and then forced

the victim to stand naked at gunpoint in the street);

Kerns v. United States, No. CV-04-01937, 2007 WL

552227, at *1 (D. Ariz. Feb. 21, 2007), rev’d and remanded, No. 07-15769, 2009 WL 226207 (9th Cir. Jan.

28, 2009) (describing an instance when federal agents

confused Scott Michael Kernes and Scott Curtis Kerns

and thus executed a narcotics raid on the house of “not

the right Scott”); and Mesa v. United States, 837 F.

Supp. 1210, 1212 (S.D. Fla. 1993), aff’d, 123 F.3d 1435

(11th Cir. 1997) (describing an instance when federal

agents arrested the wrong Pedro Pablo Mesa).

B. Wrong-address home raids are common

and highly dangerous.

The exact number of wrong-house raids, or of

those by federal law enforcement officers in particular, is not available. Commentators have lamented the

lack of reliable data. See Graham Rayman, Tracking

Errors; Board Asked to Focus on Wrong-Door Raids,

Newsday, June 12, 2003, at A17. But there are important clues to the problem’s scope suggesting that

no-knock warrant executions are susceptible to frequent law enforcement errors with very serious consequences. The examples described above indicate that

(E.D. Pa. Apr. 22, 1996) (describing how police raided the adjacent house after a clerical error).

11

a meaningful number of such cases involve federal officers.

Kevin Sack, in over a year of reporting, produced

the most thorough investigation of no-knock raids.6

Sack identified 81 civilians and 13 police officers

killed in no-knock or barely-knock raids from 2010 to

2015. Kevin Sack, Door-Busting Drug Raids Leave a

Trail of Blood, New York Times (Mar. 18, 2017),

https://perma.cc/Q7E7-EVQB. As Sack summarized

his findings, SWAT deployments have “led time and

again to avoidable deaths, gruesome injuries, and

costly legal settlements.” Ibid. Such avoidable deaths

include “attacks on wrong addresses.” Ibid. Over the

same five-year period, Sack found an average of 30

federal civil rights lawsuits filed annually after dynamic home raids. Ibid. (“Many of the complaints depict terrifying scenes in which children, elderly residents and people with disabilities are manhandled at

gunpoint, unclothed adults are rousted from bed and

houses are ransacked without recompense or apology.”)

In a more recent accounting, a Washington Post

investigation found that least 22 people were killed in

no-knock warrants across the country from 2015 to

2022. Nicole Dungca & Jenn Abelson, No-Knock Raids

Have Led to Fatal Encounters and Small Drug Seizures,

Washington

Post

(Apr.

15,

2022),

https://perma.cc/E4L6-5UBF. In these fatal raids, little inculpatory evidence was recovered. Ibid. Another

study of raids conducted during that period found

6 For an account of this year-long reporting project, see Stephen

Hiltner, How a Grenade in a Playpen Led to an Investigative Project, New York Times (Mar. 18, 2017), https://perma.cc/29US38NP.

12

“nearly one-third of [no-knock] investigations * * *

turn up minimal quantities of drugs or none at all.”

Brian Dolan, To Knock or Not to Knock? No-Knock

Warrants and Confrontational Policing, 93 St. John’s

L. Rev. 201, 225 (2019).

News articles documenting wrong-address, noknock raids are legion. To give just a few examples,

see, e.g., Sean Campbell, This Cop Unleashed a Reign

of Terror, Say the Wrongfully Accused, Rolling Stone

(Apr. 9, 2023), https://perma.cc/S2S7-AU9D (describing how officers wrongfully burst through Yolanda Irving’s door, brandishing weapons and demanding that

her disabled son get on the floor, before chasing her

other sons’ friends into a neighbor’s home where they

held a pregnant woman and autistic child at gunpoint); Maria Cramer, Chicago Woman Who Was

Handcuffed Naked Receives $2.9 Million Settlement,

New

York

Times

(Dec.

15,

2021),

https://perma.cc/F96K-6MWA (describing how officers

committed numerous acts of misconduct in a mistaken-house search in which they held Maria Cramer

naked and handcuffed); Sack, Door-Busting, supra

(describing how officers raided an upstairs apartment,

instead of the downstairs target, and fired upon

Iyanna Davis with a bullet that entered her right

breast and exited her abdomen); and Tom Finnegan,

Wrong-House Bust Brings Suit; A Kauai Couple

Claims They Were Manhandled in Their Home by Officers Looking for Marijuana, Honolulu Star-Bulletin

(Jan. 12, 2006) (describing how officers hit consecutive

wrong doors; in one raid, officers threw grandparents

to the floor in front of their grandchildren and the

grandfather began to thrash after an implanted spinal-shock device malfunctioned from the trauma of

his body hitting the ground).

13

Almost twenty years ago, Radley Balko of the Cato

Institute created a compendium of botched paramilitary raids. Surveying the cases, Balko concluded: “Because of shoddy police work, overreliance on informants, and other problems, each year hundreds of raids

are conducted on the wrong address, bringing unnecessary terror and frightening confrontation to people

never suspected of a crime.” Radley Balko, Overkill:

The Rise of Paramilitary Police Raids in America,

Cato Institute 4 (July 17, 2006).7 And, as mentioned

above, the court in Solis noted “law enforcement officials in North Carolina and New Mexico as saying

that raids of incorrect houses happen ‘every day in

this business’ and ‘all the time.’” 319 F. Supp. 2d at

808 (citing Joe Hallinan, Drug Wars: Fervor Often Injures the Innocent, New Orleans Times-Picayune,

Sept. 26, 1993, at A20). The examples detailed above

suggest that the problem has not diminished during

the intervening period.

High-risk searches and botched raids also disproportionately affect minority communities. Thirteen of

the 22 people fatally shot from 2016 to 2022 in noknock raids identified by the Washington Post were

Black or Hispanic. Dungca & Abelson, No-Knock

Raids, supra. The New York Times’ investigation similarly found about half of the civilian deaths in its tally

to be from minority groups. Sack, Door-Busting Raids,

7 As an illustrative case, Balko relates an incident in which a half

dozen officers with riot shields and assault weapons arrived at

the Brooklyn apartment of octogenarians Leona and Martin

Goldberg. Upon entering, the police pushed Mr. Goldberg aside

and ordered him to the floor. “‘They charged in like an army,’

Goldberg, a decorated World War II veteran, told the New York

Post. ‘They knocked pictures off the wall.’” Balko, Overkill, supra

at 4.

14

supra. And the American Civil Liberties Union surveyed 20 cities and found that, of people subjected to

SWAT raids, 42% were Black and 12% Hispanic.

American Civil Liberties Union, War Comes Home:

The Excessive Militarization of American Police (June

23, 2014), https://perma.cc/3G8Y-ZB4B.8

C. Wrong-address home raids create a need

for legal redress.

Often executed in the small hours of the night and

without warning, no-knock home raids are designed

to strike individuals at their most vulnerable. See

Bravo v. City of Santa Maria, 665 F.3d 1076, 1086 (9th

Cir. 2011) (such raids represent “much greater intrusions on one’s privacy * * * and carry a much higher

risk of injury to persons and property.”). The home is

“first among equals,” Florida v. Jardines, 569 U.S. 1,

6 (2013), and the “very core” of private space, held free

from government intrusion, Silverman v. United

States, 365 U.S. 505, 511 (1961). The extraordinary

power of a home raid therefore makes it imperative

that law enforcement officers exercise diligence to

identify the correct home. See Solis v. City of Columbus, 319 F. Supp. 2d 797, 809 (S.D. Ohio 2004) (imploring officers to be “particularly vigilant in

8 Specific to wrong-address raids, a 2020 study of Chicago police

data found that Black and Latino neighborhoods were disproportionately impacted by wrong-address raids. Dave Savini, Samah

Assad & Michele Youngerman, ‘They Had The Guns Pointed At

Me;’ Another Chicago Family Wrongly Raided, Just 1 Month After Police Created Policy To Stop Bad Raids, CBS News (June 10,

2020), https://perma.cc/V23F-FF28.

15

executing an extraordinarily intrusive search”).9 That

is why Congress in the FTCA provided redress for victims if federal officers cause such injury in what this

Court has described as the “sanctity of the home,”

Kyllo v. United States, 533 U.S. 27, 37 (2001). Requiring claims arising out of the law enforcement proviso

to clear the discretionary-function hurdle would effectively bar those claims.

II. Requiring claims arising out of the law enforcement proviso to clear the discretionary-function hurdle would effectively bar

those claims.

Although it is essential that there be an effective

remedy for wrong-house law enforcement raids, the

government’s position would have the effect of barring

virtually all such claims—and, thus, of departing from

the clear purpose of the FTCA law enforcement proviso. Congress enacted the proviso in response to a police raid that was factually identical to the one in this

case. By doing so, Congress intended to provide a legal

remedy to victims who suffer property, physical, or

emotional damage from such law enforcement failures. In the first fifteen years after the proviso’s adoption, lower courts therefore read it in harmony with

9 No-knock entries should not be “undertaken in the ordinary

course.” Penate v. Sullivan, 73 F.4th 10, 19 (1st Cir. 2023). Requiring police to knock and announce their presence safeguards

“human life and limb, because an unannounced entry may provoke violence in supposed self-defense.” Hudson v. Michigan, 547

U.S. 586, 594 (2006); see also Miller v. United States, 357 U.S.

301, 313 n.12 (1958) (“Compliance [with knock-and-announce] is

also a safeguard for the police themselves who might be mistaken

for prowlers and be shot down by a fearful householder.”)

16

the FTCA discretionary-function exception, giving effect to both provisions.

Over the subsequent decades, however, courts

have increasingly read the discretionary-function exception to immunize essentially all law-enforcement

activities, including investigative decisions and conduct relating to the effectuation of warrants. That app

oach—advocated for by the government here—would

block nearly all intentional tort claims arising out of

federal law enforcement activities, rendering the law

enforcement proviso largely meaningless.

A. Congress enacted the law enforcement

proviso to provide a remedy to victims of

mistaken police raids.

Congress enacted the law enforcement proviso to

target police raids identical to the one at issue here.

In 1973, Congress heard testimony from two families—the Giglottos and Askews—whose homes in Collinsville, Illinois were mistakenly raided by federal

narcotics agents. Just like Petitioners here, Herbert

Giglotto awoke to a loud “crashing sound” and feared

that criminals were breaking into his home. Hearings

on Reorganization Plan No. 2 of 1973 Before the Subcomm. on Reorganization, Rsch., and Int’l Orgs. of the

Senate Comm. on Gov’t Operations, 93d Cong. 461

(1973) (testimony of Mr. and Mrs. Herbert Joseph Giglotto, Collinsville, Ill.) (Hearings on Reorganization

Plan NO. 2); J.A. 4–5, 21–22. Just as the SWAT

agents in this case “dragged Mr. Cliatt * * * onto the

floor of the bathroom and handcuffed him,” J.A. 6, 23,

narcotics agents handcuffed both Mr. Giglotto and his

wife on their bed while the officers screamed obscenities and threatened to kill them. Hearings on Reorganization Plan No. 2 462-464. And when Mr.

17

Giglotto pleaded with the men, the narcotics agents

did the same thing that the SWAT agents did here:

pointed their guns at the innocent victims. Ibid.; see

also J.A. 5–6, 22–23. In the aftermath of the agents’

“mistakes,” these families suffered damage to their

homes and severe emotional distress. J.A. 9–13, 26–

30.

Congress adopted the law enforcement proviso to

provide victims of such mistaken police raids adequate redress for abusive governmental errors. Senator Charles Percy—one of the proviso’s principal sponsors—described the “absence of an effective legal remedy” as “[o]ne of the most shocking aspects” of the Collinsville raids. S. Rep. No. 93–469, at 35 (1973).

Accordingly, Congress amended the FTCA to provide

“innocent individuals who are subjected to raids of the

type conducted in Collinsville” with a cause of action

against the federal government. S. Rep. No. 93–588,

at 3 (1973). The law was designed to compensate for

“actual physical damage, * * * pain, suffering and humiliation” inflicted by law enforcement officers. Id. at

2.

The government attempts to distinguish the Collinsville raids from the one at issue here by emphasizing the warrantless nature of the former. But Congress never intended the law-enforcement proviso to

be so limited. Although recognizing the Fourth

Amendment issues in Collinsville, Congress cautioned

that the proviso should “not be * * * limited to constitutional tort situations,” but instead would broadly

“apply to any case in which a Federal law enforcement

agent commit[s] the tort while acting in the scope of

his employment.” S. Rep. No. 93–588, at 4. So, if a case

like this one that is factually identical to the Collinsville raids may not proceed—even though the

18

Collinsville raids were the impetus for the proviso’s

adoption—it is likely that no claim would be actionable under the proviso.

B. Lower courts historically interpreted

the law enforcement proviso and discretionary-function exception harmoniously.

Notably, in the years immediately following enactment of the law enforcement proviso, lower courts

applied it in a manner that was faithful to Congress’s

intent, rejecting the government’s early attempts to

minimize the proviso. Instead, courts interpreted the

proviso and discretionary-function exception harmoniously, giving meaningful effect to both provisions. In

Sutton v. United States, 819 F.2d 1289 (5th Cir. 1987),

for example, the Fifth Circuit observed that requiring

all actions under the law enforcement proviso to clear

the discretionary-function hurdle “would result in judicial repeal” of the proviso. Id. at 1295. A broad application of the exception would prevent “even * * *

Collinsville [from] pass[ing] muster.” Id. at 1296.

Other courts of appeals took a similar approach,

harmonizing the two FTCA provisions by adopting a

narrow view of the discretionary-function exception.

To ensure the exception did not “eviscerate” the proviso, the Second Circuit refused to classify as discretionary a border patrol agent’s “mechanical duty” of

determining whether an applicant met the minimal

standards for entry into the country. Caban v. United

States, 671 F.2d 1230, 1234 (2d Cir. 1982). A contrary

view would “jeopardize a primary purpose” for enacting the law enforcement proviso. Ibid. The D.C. Circuit likewise observed that the two provisions would

“rare[ly]” come into conflict if courts read the proviso

19

“to include primarily persons (such as police officers)

whose jobs do not typically include discretionary functions.” Gray v. Bell, 712 F.2d 490, 508 (D.C. Cir. 1983);

see also Wright v. United States, 719 F.2d 1032, 1035

(9th Cir. 1983) (limiting the discretionary-function exception “to decisions made at a planning rather than

an operational level”). And although the Third Circuit

found it unnecessary to resolve the issue in Pooler v.

United States, 787 F.2d 868, 872 (3d Cir. 1986), abrogated by Millbrook v. United States, 569 U.S. 50, 57

(2013), it noted that limiting the proviso to searches,

seizures, and arrests “largely eliminates” the conflict

between the two provisions because those activities

are operational, not discretionary. Ibid. These nearcontemporaneous decisions demonstrate courts’ understanding that the proviso must be given meaningful reach to accomplish the manifest congressional

goal.

C. The Government’s rule would bar nearly

all claims arising from the law enforcement proviso.

More recently, however, lower courts have been

receptive to the government’s urgings to expand the

discretionary-function exception to reach nearly all

law enforcement activities, effectively narrowing the

reach of the law enforcement proviso. These courts

presume that law enforcement decisions are inherently based on considerations of public policy. Six

courts of appeals, in addition to the court below in this

case, have held that a law enforcement officer’s investigatory decisions are discretionary in nature. For example, the Ninth Circuit now presumes that an officer’s acts related to a criminal investigation “are

grounded in policy.” Nieves Martinez v. United States,

997 F.3d 867, 880 (9th Cir. 2021) (quoting Gonzalez v.

20

United States, 814 F.3d 1022, 1028 (9th Cir. 2016)).

That court will exempt law enforcement investigations from the discretionary-function exception only

when an officer’s actions have “no legitimate policy rationale.” Id. at 881 (quoting Sabow v. United States,

93 F.3d 1445, 1454 (9th Cir. 1996)); see also, e.g.,

Suter v. United States, 441 F.3d 306, 311–12 (4th Cir.

2006) (concluding that investigatory choices are

grounded in public policy considerations); Campos v.

United States, 888 F.3d 724, 733 (5th Cir. 2018) (classifying thoroughness of an investigation as “inherently discretionary”); Mynatt v. United States, 45

F.4th 889, 896 (6th Cir. 2022) (classifying investigatory decisions as within the scope of the exception because they “involve difficult considerations” (quoting

Milligan v. United States, 670 F.3d 686, 694 (6th Cir.

2012))); Reynolds v. United States, 549 F.3d 1108,

1113 (7th Cir. 2008) (recognizing challenges to the

quality of an investigation are generally barred under

the exception).

Courts have also treated an officer’s on-the-spot

decisions, such as how to execute a warrant, as discretionary and therefore immune. See Milligan, 670 F.3d

at 695 (verification of a suspect); Hart v. United

States, 630 F.3d 1085, 1090 (8th Cir. 2011) (“effectuat[ing] an arrest—including how * * * to restrain,

supervise, control, or trust an arrestee”); Shuler v.

United States, 531 F.3d 930, 934 (D.C. Cir. 2008) (timing of arrests); Mesa v. United States, 123 F.3d 1435,

1438 (11th Cir. 1997) (locating, identifying, and verifying the subject of arrest warrant); Awad v. United

States, 807 F. App’x 876, 881 (10th Cir. 2020)(weapon

choice, investigative techniques, surveillance methods, and warrant execution tactics). This understanding of the exception covers nearly all of the activities

21

that may arise from law enforcement officers’ interactions with the citizenry, blocking all of these claims.

These courts’ formulation of the doctrine leaves without recourse the exact people Congress wanted to protect when it adopted the law enforcement proviso, offering them no remedy for their emotional, physical,

and economic harms.

That is the necessary consequence of the government’s approach: its understanding of the FTCA

would effectively write the law enforcement proviso

out of the statute. In the government’s view, an officer’s act need “not be actually grounded in policy considerations” to qualify as discretionary “so long as it

is, ‘by its nature, susceptible to a policy analysis.’”

U.S. Opp. at 11(quoting Miller v. United States, 163

F.3d 591, 593 (9th Cir. 1998)). This approach posits

that only a constitutional mandate, federal statute, or

regulation that is “sufficiently specific” can destroy an

officer’s discretion. Id. at 13. The government asserts

that “many claims arising from the intentional torts

of law enforcement officers do not implicate discretionary functions” under this standard. Id. at 18. As

its only example, however, the government observes

that law enforcement officers do not have discretion to

commit perjury (ibid.)—an example that seemingly

limits the law enforcement proviso to actions that the

officer must have known were illegal. And that in fact

is how the Government has understood the FTCA to

apply. See, e.g., U.S. Br. at 29-30, Campos, 888 F.3d

724, 2017 WL 2180122, at *21-22 (No. 16-51476) (arguing that the discretionary-function exception is inapplicable only in cases of “intentional or outrageous

misconduct”); Appellee Br. at 10, Nieves Martinez, 997

F.3d 867, 2020 WL 3884807, at *3 (No. 19-16953) (arguing that claims “that officers were incompetent * *

22

* careless, abusive, or just got it wrong” fall within the

exception). This would bar claims identical to those

that Congress had in mind when it enacted the proviso.

III. Holding the government liable for intentional torts committed by law enforcement

officers will advance the goals of the FTCA.

Finally, it bears emphasis that applying the FTCA

as Congress intended is wholly consistent with effective law enforcement. Although courts have been concerned that subjecting individual officers to legal liability may chill officers from responding to and preventing crime, that concern is not implicated here: the

United States—not any individual officer—is liable

under the FTCA. Moreover, substantial research

demonstrates that law enforcement officers in practice are rarely concerned about legal liability even

when they may be subject to it directly, which strongly

suggests that vigorous law enforcement actions are

unlikely to be deterred by officers’ fear of becoming involved indirectly in FTCA litigation. At the same time,

lawsuits like this one create powerful incentives for

the government to adopt policies that reduce the risk

of injury. If claims like the one in this case may not

proceed, the government will have much less reason

to rein in abusive police conduct.

A. Government liability under the FTCA for

wrong-house raids will not discourage

law enforcement officers from vigorous

performance of their jobs.

This Court has reasoned that qualified immunity

for law enforcement officers is justified on the ground

that fear of personal liability may chill officers from

exercising their lawful authority. See, e.g., Elder v.

23

Holloway, 510 U.S. 510, 514 (1994) (“The central purpose of affording public officials qualified immunity

from suit is to protect them ‘from undue interference

with their duties and from potentially disabling

threats of liability.’” (quoting Harlow v. Fitzgerald, 457 U.S. 800, at 806 (1982))); Hunter v. Bryant,

502 U.S. 224, 229 (1991) (“This accommodation for

reasonable error [under qualified immunity] exists because ‘officials should not err always on the side of

caution’ because they fear being sued.” (quoting Davis

v. Scherer, 468 U.S. 183, 196 (1984))).

That fear is inapplicable here. Under the FTCA,

Congress imposed liability for certain intentional

torts committed by law enforcement officers on the

United States, not on the officers. 28 U.S.C. § 2680(h).

Because of this, an officer in the field need not hesitate

or second-guess his or her actions out of fear of personal liability in an FTCA action. Even in instances

where federal officers commit an intentional tort, the

government will foot the bill for any judgment or settlement growing out of that action.

And there is no need for concern that law enforcement officers will be chilled in their duties out of concern that they will be caught up in an FTCA suit as a

witness or the subject of testimony. Empirical evidence shows that, although “some have claimed that

the fear of being sued may negatively affect law enforcement practice, research seems to suggest otherwise.” Victor E. Kappeler, Critical Issues in Police

Civil Liability 7 (4th ed. 2006). And if officer initiative

is not chilled even when direct officer liability is at

stake, that surely also is so when officers are involved

in litigation more indirectly.

24

The existing research on this topic shows that law

enforcement officers rarely—if ever—think about the

risk of litigation as they perform their duties. One survey found that 87% of state police officers, 95% of municipal police officers, and 100% of university police

officers did not consider the risk of liability to be one

of their “top ten thoughts” when pulling over a vehicle

or confronting an individual. Arthur H. Garrison, Law

Enforcement Civil Liability Under Federal Law and

Attitudes on Civil Liability: A Survey of University,

Municipal and State Police Officers, 18 Police Stud.

Int’l Rev. Police Dev. 19, 26 (1995). Another survey reported similar findings, concluding that its “results

support the findings of earlier studies which found

that the majority of police officers are not significantly

concerned about the impact of lawsuits on police activities.” Anthony P. Chiarlitti, Civil Liability and the

Response of Police Officers: The Effect of Lawsuits on

Police Discretionary Actions (Aug. 2016) (doctoral dissertation,

St.

John

Fischer

University),

https://perma.cc/J7YQ-9NCM. In fact, officers who

have been sued are generally more aggressive after

the lawsuit than officers who have not been sued. Kenneth J. Novak et al., Strange Bedfellows: Civil Liability and Aggressive Policing, 26 Policing: Int’l J. Police

Strategies & Mgmt. 352, 360 (2003).

Officers may lack concern over litigation because

they are rarely required to contribute to judgments or

settlements for wrongful conduct, even when they

may face personal liability in theory. One study examined 9,225 civil rights damages actions that resolved

in the plaintiff’s favor and found that officers’ “contributions amounted to just .02% of the over $730 million

spent by cities, counties, and states” in those cases.

Joanna C. Schwartz, Police Indemnification, 89

25

N.Y.U. L. Rev. 885, 890 (2014). Another study found

that in successful Bivens claims against Federal Bureau of Prisons employees, employees and their insurers contributed to the settlement in less than 5% of

cases, a share that amounted to just .32% of the total

amount paid to plaintiffs. James E. Pfander, et al.,

The Myth of Personal Liability: Who Pays

When Bivens Claims Succeed, 72 Stan. L. Rev. 561,

579 (2020).

The bottom line is clear: because law enforcement

officers’ actions are not chilled by the threat of litigation even when facing the risk of personal liability,

there is no reason to believe that their initiative will

be impaired by fear of an FTCA action, where there is

no risk of personal liability at all.

B. FTCA liability gives the government an

incentive to prevent tortious acts.

On the other side of the equation, governmental

liability does give the liable party—in an FTCA suit,

the United States—an incentive to improve the performance of government employees. The United

States paid over half a billion dollars in FTCA claims

in the 2022 fiscal year alone. See Michael D. Contino

& Andreas Kuersten, Cong. Rsch. Serv., R45732, The

Federal Tort Claims Act (FTCA): A Legal Overview 2

n.14 (2023). These significant payouts should encourage the government to adopt policies that will reduce

exposure to future liability. See, e.g., Peter H. Schuck,

Suing Government: Civilian Remedies for Official

Wrongs 16-19, 135-146 (1983). So almost certainly, if

the Government faces meaningful liability for wronghouse raids, it will be inclined to take actions to ensure that officers execute searches on the correct

homes.

26

In addition to direct economic incentives, FTCA liability creates political incentives for constructive

governmental reform in at least two ways. First, the

cost of litigation and liability can create political pressure for reform, especially when those economic costs

are great. Elected officials are highly motivated to

maximize the allocation of public benefits while minimizing the public’s tax burden, but those goals would

be undermined by substantial governmental liability

for law enforcement officer torts. See, e.g., Lawrence

Rosenthal, A Theory of Governmental Damages Liability: Torts, Constitutional Torts, and Takings, 9 U.

Pa. J. Const. L. 797, 832 (2007). This is particularly

true when “the cost of avoiding an injury is small, the

likelihood of injury is great, and the impact on the government's budget is likely to be large.” Id. at 842 All

of that typically will be true of wrong-house raids.

Second, liability creates political incentives for action by exposing and attracting public attention to

governmental failings. Lawsuits give plaintiffs a

mechanism with which to discover and expose government wrongdoing, while substantial monetary awards

against the government may attract significant press

coverage. But without the prospect of liability under

the FTCA, many lawsuits that would otherwise create

political incentives for elected federal officials to act

would not be filed in the first place.

The Los Angeles Sheriff’s Department (LASD) is

illustrative of the ways that liability can incentivize

and improve governmental accountability. In 1991,

the Los Angeles County Board of Supervisors ordered

an independent investigation after a string of highprofile and expensive settlements and judgments. See

Joanna C. Schwartz, What Police Learn from Lawsuits, 33 Cardozo L. Rev. 841, 849 (2012). The Board

27

also appointed a special counsel to oversee the implementation of the investigator’s recommendations. As

a result of the investigation, the LASD began tracking

legal claims brought against it and the settlements

and judgments paid out. Ibid. Through this tracking,

the LASD noticed that certain issues kept recurring,

including deputies failing to go to the right address in

response to a call. Id. at 854.

The Department acted to fix these failings.

Schwartz, 33 Cardozo L. Rev. at 854. For example, at

the suggestion of an auditor, the LASD implemented

enhanced supervision techniques to improve accuracy

when responding to calls. Ibid. Many of these strategies worked. By adopting these and other techniques,

the LASD reduced litigation costs by over $30 million

in the five years of the special counsel’s tenure Id. at

860. Without the imposition of liability, it is unlikely

that the LASD would have engaged in these valuable

and successful reforms. In fact, it might not even have

known what areas to reform without the valuable information gained by tracking legal claims made

against it.

The data and history from the LASD provide a lesson that is applicable to this case. Government liability will not discourage desirable law enforcement activity by federal officers. But precluding government

liability for harmful and undesirable officer action will

reduce the prospect that officials take steps to curb future abuses. That preclusion of liability also, of course,

leaves victims of misconduct with no meaningful remedy. The Court should reject the government’s request

to embrace such an outcome in this case.

28

CONCLUSION

For the foregoing reasons, the judgment of the

court of appeals should be reversed.

Respectfully submitted.

EUGENE R. FIDELL

Yale Law School

Supreme Ct. Clinic

127 Wall Street

New Haven, CT 06511

CHARLES A. ROTHFELD

Counsel of Record

Mayer Brown LLP

1999 K Street, NW

Washington, DC 20006

(202) 263-3000

crothfeld

@mayerbrown.com

JOHN W. WHITEHEAD

WILLIAM E. WINTERS

The Rutherford

Institute

109 Deerwood Road

Charlottesville, VA

22911

PAUL W. HUGHES

McDermott Will &

Emery LLP

500 N. Capitol St., NW

Washington, DC 20001

LAUREN BONDS

KEISHA JAMES

National Police Accountability Project

1403 Southwest Blvd.

Kansas City, Kansas

66103

Counsel for Amici Curiae

MARCH 2025