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

_____________

AMICUS CURIAE BRIEF OF THE

NEW CIVIL LIBERTIES ALLIANCE

IN SUPPORT OF PETITIONERS

_____________

Casey Norman

Counsel of Record

Jenin Younes

Mark Chenoweth

NEW CIVIL LIBERTIES ALLIANCE

4250 N. Fairfax Drive, Suite 300

Arlington, Virginia 22203

(202) 869-5210

Casey.Norman@ncla.legal

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

TABLE OF CONTENTS ............................................. i

TABLE OF AUTHORITIES ..................................... iii

INTEREST OF AMICUS CURIAE ........................... 1

INTRODUCTION AND SUMMARY OF

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

RELEVANT FACTUAL BACKGROUND ................. 5

ARGUMENT ............................................................ 10

I. POST-EGBERT, THE FTCA OFFERS THE ONLY

VIABLE PATH TO RECOVER DAMAGES FOR

VICTIMS HARMED BY FEDERAL LAW

ENFORCEMENT OFFICERS ................................. 10

II. THE DISCRETIONARY-FUNCTION EXCEPTION

DOES NOT BAR CLAIMS ARISING FROM THE

LAW-ENFORCEMENT PROVISO ........................... 16

A. The Eleventh Circuit’s Ruling Defies the

FTCA’s Plain Text and Purpose .................. 16

B. Agent Guerra’s Conduct Was Not a Policy

Decision—It Was a Grave Blunder Beyond

the Scope of the Discretionary-Function

Exception ...................................................... 18

III. THE ELEVENTH CIRCUIT’S DISTORTION OF

THE SUPREMACY CLAUSE IMPERMISSIBLY

NULLIFIES CONGRESS’S WAIVER OF

IMMUNITY ......................................................... 23

A. The FTCA—a Federal Statute—Does Not

Conflict with the Supremacy Clause ........... 23

B. The Eleventh Circuit’s Infusion of

Qualified Immunity into the Assessment

of FTCA Claims Is Inappropriate and

Legally Unfounded ....................................... 25

ii

IV. AGENT GUERRA’S CONDUCT DOES NOT

WARRANT IMMUNITY UNDER ANY OF THE

FTCA’S EXCEPTIONS ......................................... 27

CONCLUSION ......................................................... 29

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Berkovitz v. United States,

486 U.S. 531 (1988) ............................................... 18

Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics,

403 U.S. 388 (1971) ................................................ 10

Brownback v. King,

592 U.S. 209 (2021) ............................................... 23

Butz v. Economou,

438 U.S. 478 (1978) ......................................... 19, 24

Caban v. United States,

671 F.2d 1230 (2d Cir. 1982) ................................ 20

Carlson v. Green,

446 U.S. 14 (1980) .................................................... 9

Egbert v. Boule,

596 U.S. 482 (2022) ...................................2, 4, 11, 13

Feres v. United States,

340 U.S. 135 (1950) .................................................. 8

Garcia v. United States,

826 F.2d 806 (9th Cir. 1987) ................................. 18

Gray v. Bell,

712 F.2d 490 (D.C. Cir. 1983) ............................... 20

Harlow v. Fitzgerald,

457 U.S. 800 (1982) ................................................ 11

Hatahley v. United States,

351 U.S. 173 (1956) ................................................ 15

In re Neagle,

135 U.S. 1 (1890) ................................................... 24

iv

Latits v. Phillips,

878 F.3d 541 (6th Cir. 2017) ................................... 12

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803) ............................... 2, 10

Martin v. United States,

631 F. Supp. 3d 1281 (N.D. Ga. 2022).................. 28

Martin v. United States,

No. 23-10062, 2024 WL 1716235

(11th Cir. Apr. 22, 2024) ..................15, 16, 22, 23, 25

Nguyen v. United States,

556 F.3d 1244 (11th Cir. 2009) ....................... 16, 17

Mohamud v. Weyker,

No. 17-2069 (8th Cir. 2024) ……………….……… 12

Owen v. City of Independence,

445 U.S. 622 (1980) ............................................... 11

Pooler v. United States,

787 F.2d 868 (3d Cir. 1986) .................................. 18

Red Lake Band of Chippewa Indians v. United

States,

800 F.2d 1187 (D.C. Cir. 1986) ............................. 19

Richards v. United States,

369 U.S. 1 (1962) ...................................................... 8

Shivers v. United States,

1 F.4th 924 (11th Cir. 2021).................................... 15

Smith v. Arrowood,

No. 6:21-CV-6318, 2023 WL 6065027

(W.D.N.Y. Sept. 18, 2023) ....................................... 13

Sutton v. United States,

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

United States v. Gaubert,

499 U.S. 315 (1991) .......................................... 14, 18

United States v. Varig Airlines,

467 U.S. 797 (1984) .......................................... 15, 19

v

Wyatt v. Cole,

504 U.S. 158 (1992) ............................................... 11

Ziglar v. Abbasi,

582 U.S. 120 (2017) ................................................ 11

Statutes

28 U.S.C. § 1346 ...................................................... 8, 9

28 U.S.C. § 2674 ....................................................... 26

28 U.S.C. § 2680 ............................3, 4, 8, 9, 10, 14, 16

Other Authorities

1974 U.S.C.C.A.N. 2789 (1973) .............................. 9, 10

1

INTEREST OF AMICUS CURIAE1

The New Civil Liberties Alliance (“NCLA”) is a

nonpartisan, nonprofit civil rights organization and

public-interest law firm devoted to defending

constitutional freedoms from the administrative state’s

depredations. Professor Philip Hamburger founded

NCLA to challenge multiple constitutional defects in the

modern administrative state through original litigation,

amicus curiae briefs, and other advocacy.

The “civil liberties” of the organization’s name

include rights at least as old as the U.S. Constitution

itself, such as the right to a jury trial, to due process of

law, and to have laws made by the nation’s elected

legislators through constitutionally prescribed channels

(i.e., the right to self-government). These selfsame civil

rights are also very contemporary—and in dire need of

renewed vindication—precisely because Congress,

executive branch officials, administrative agencies, and

even some courts have neglected them for so long.

NCLA aims to defend civil liberties—primarily by

asserting constitutional constraints against the modern

administrative state. Although Americans still enjoy the

shell of their Republic, a very different sort of

government has developed within it—a type that the

Constitution was designed to prevent. This

unconstitutional state within the Constitution’s United

States is the focus of NCLA’s concern.

NCLA is deeply disturbed by the vanishing pathway

to recovery for American citizens who are harmed—

sometimes egregiously so—by federal law enforcement

officers. It is a “general and indisputable rule” that where

1 No party’s counsel authored any portion of this brief, and no

party, party counsel, or person other than amicus curiae made a

monetary contribution intended to fund this brief’s preparation

or submission. See S. Ct. R. 37.6.

2

there is a legal right, there is also a legal remedy

“whenever that right is invaded.” Marbury v. Madison, 5

U.S. (1 Cranch) 137, 163 (1803). Yet this fundamental

principle has been steadily eroded as judge-made

immunity doctrines have expanded—leaving victims of

even egregious federal misconduct without meaningful

redress and, in this case, contravening the will of

Congress.

In Egbert v. Boule, this Court effectively closed the

door on future Bivens claims, concluding that “no Bivens

action may lie” if there is any rational reason to think

that Congress (rather than the courts) should be the one

to decide whether to provide for a damages remedy—“as

it will be in most every case.” 596 U.S. 482, 492 (2022).

As a result, the Federal Tort Claims Act (FTCA) now

often stands as the only meaningful path to recovery for

individuals harmed by federal law enforcement officers.

Yet the decision below—through an expansive

application of the FTCA’s discretionary-function

exception and an unprecedented distortion of the

Supremacy Clause—threatens to erase even that crucial

remaining remedy.

The Eleventh Circuit’s ruling not only contravenes

Congress’s express waiver of sovereign immunity under

the FTCA’s law-enforcement proviso, but it also creates

an untenable gap in accountability, shielding federal

officers from liability for even the most egregious

misconduct, while barring relief to their victims.

As a staunch defender of Americans’ rights, selfgovernment, the separation of powers, and the rule of

law, NCLA has an interest in the outcome of this case.

INTRODUCTION AND SUMMARY OF

ARGUMENT

The Eleventh Circuit’s decision below defies

congressional design and nullifies the lawenforcement proviso’s intended effect on the very

3

types of tort claims for which it was enacted. As the

Eleventh Circuit, among other circuits, has whittled

away the FTCA’s waiver of immunity through faulty

judge-made doctrine, victims of federal law

enforcement abuses are increasingly deprived of their

last meaningful hope for redress, which the FTCA

provides.

The decision below inappropriately expands the

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

§ 2680(a), rendering the law-enforcement proviso a

dead letter. It also distorts the Supremacy Clause,

transforming a constitutional safeguard meant to

uphold valid Acts of Congress as the “supreme Law of

the Land” into a tool for nullifying federal statutes

whenever they are perceived as impeding the

execution of other federal laws or functions.

This case exemplifies why the FTCA’s lawenforcement proviso is so critical. Federal law

enforcement officers wield immense power over the

lives of citizens. When that power is exercised

responsibly, it helps uphold the rule of law and ensure

public safety. But when that power is abused or

recklessly misapplied, the consequences can be

severe—as in this case, where an FBI SWAT team

raided the wrong house, terrorizing an innocent

family who was awakened before dawn by the “loud

cannon-type bang” of flash grenades and the sound of

intruders invading their home. Petitioner Hilliard

Cliatt was then shackled on the floor of his own home

and aggressively interrogated, while Petitioner

Curtrina Martin was held at gunpoint, forced to

crouch half-naked in the closet, terrified that

something awful had happened to her seven-year-old

son, who was elsewhere in the house. And why did all

of this happen? Because the FBI agent leading the

raid failed to take the most basic precaution—

checking the clearly marked house number—before

4

ordering a full-scale tactical assault on a residential

home. As a result of this lapse (among other

oversights), the FBI SWAT team raided the wrong

house number on the wrong street.

Congress expressly waived sovereign immunity

for intentional torts such as assault, battery, false

imprisonment, and wrongful raids arising from

federal law enforcement misconduct under the

FTCA’s law-enforcement proviso, 28 U.S.C. § 2680(h),

to ensure that victims would have a viable legal

remedy. Yet the Eleventh Circuit’s ruling reimposes

immunity where Congress explicitly removed it. If

allowed to stand, the ruling below will render wronghouse raids, excessive force, and other egregious

abuses committed by federal law enforcement officers

virtually

unchallengeable

in

court,

further

diminishing accountability for federal officers at a

time when other avenues of redress—such as Bivens

claims—have already been all but eliminated.

Indeed, in Egbert v. Boule, this Court concluded

that “no Bivens action may lie” if there is any rational

reason to think that Congress, rather than the courts,

should decide whether to provide for a damages

remedy—“as it will be in most every case.” 596 U.S. at

492. With Bivens relief now largely unavailable and

qualified immunity shielding officers from liability

absent a near-identical prior case, the FTCA will

often stand as the only realistic path to recovery for

victims of federal law enforcement misconduct. Yet

the Eleventh Circuit’s ruling threatens to close even

that last remaining door.

The Eleventh Circuit’s decision is gravely flawed for

two reasons: (1) it impermissibly expands the FTCA’s

discretionary-function exception, such that the exception

swallows the later-enacted law-enforcement proviso,

rendering Congress’s will a dead letter; and (2) it

5

nonsensically inverts the Supremacy Clause, using it to

nullify claims under the FTCA—a federal statute—and

eliminate a cause of action expressly provided for by

Congress. While the Eleventh Circuit stands alone in

its distorted application of the Supremacy Clause, its

expansive reading of the discretionary-function

exception reflects a disturbing trend among other

circuits, which have similarly whittled away at

congressional design, effectively negating the lawenforcement proviso by stretching the discretionaryfunction exception far beyond its proper scope.

If this Court permits the Eleventh Circuit’s ruling

to stand, it will severely weaken the FTCA’s role in

ensuring redress for victims of federal law

enforcement misconduct. It would also send a

dangerous message that the courts will not hold the

federal government accountable when its law

enforcement agents unlawfully raid homes—

detaining, assaulting, and terrorizing innocent

individuals—so long as a federal agent’s misdeeds

bear “some nexus” to federal policy and do not violate

“clearly established” law. This result defies the will of

Congress, misconstrues the relevant law, and leaves

all Americans vulnerable to rights violations with no

avenue for redress.

RELEVANT FACTUAL BACKGROUND

This case arises from an FBI wrong-house raid,

during which an innocent family was terrorized at

gunpoint and subjected to extreme psychological and

physical distress—all because the FBI agent in

charge of the operation (FBI Special Agent Lawrence

Guerra) failed to take some of the most basic and

commonsense

precautionary

measures

before

executing a raid on a residential home: namely, check

the house number before breaking down the door.

6

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

Agent Guerra led a SWAT team to 3756 Denville

Trace, a well-kept family home in a quiet residential

neighborhood where Petitioners and Petitioner

Martin’s seven-year-old son were fast asleep. Pet.

Cert. at 8; Pet. App. 35a.

Failing to confirm the address posted on the

mailbox in front of the house and, instead, using a

black Chevrolet Camaro in the driveway as a

landmark, Agent Guerra incorrectly believed that he

had arrived at 3741 Landau Lane—the home of gang

member Joseph Riley and the address for which

Guerra had a search warrant. At the time, Guerra

was aware that the address of the target house was

posted on the mailbox. He was also aware that neither

Riley nor any of his associates were known to drive a

black Camaro. Pet. Cert. at 8-9.

Prior to the raid, the FBI prepared an operation

order and accompanying addendum (collectively, the

“operation order”), which, among other things,

provided instructions on how to execute the warrant;

a description and photograph of the target house

(3741 Landau Lane); an overhead image of the

neighborhood with a pin denoting 3741 Landau Lane;

and step-by-step directions to the property with a

corresponding map. Pet. App. 35a-36a.

Agent Guerra testified that, at approximately

3:30 a.m. on the morning of the raid, he conducted a

drive-by of the target home to determine whether

there were any unexpected conditions. According to

Guerra, he used his personal GPS device to navigate

to a house that he believed to be 3741 Landau Lane,

where he observed a black Camaro parked in the

driveway. The house was not the target location, but

instead the Petitioners’ home at 3756 Denville Trace,

and Petitioner Hilliard Cliatt was the owner of the

7

black Camaro. The house number of Petitioners’ home

was affixed to the mailbox. Pet. App. 37a-38a.

When Agent Guerra returned later that morning

with the full SWAT team, rather than verifying the

street name or house number (which was clearly

listed in the warrant, operation order, and mailbox in

front of Petitioners’ home), Guerra relied on the black

Camaro (Petitioner’s car) parked in the driveway of

Petitioners’ home as confirmation that the SWAT

team was at the correct address. Pet. App. 38a.

At around 5 a.m. that morning, Petitioners

Hilliard Cliatt and Curtrina Martin were awakened

by the “loud cannon-type bang” of flash grenades and the

sound of what they believed to be intruders invading

their home, as the SWAT agents rammed in the front

door of their home. Pet. App. 76a; J.A. 5.

Martin’s first instinct was to run to her son’s room to

shield him from the intruders, but Cliatt, acting to

protect his partner, grabbed Martin and pulled her into

a walk-in closet where he kept his shotgun. Meanwhile,

seven-year-old G.W. hid under his covers, as his mother

screamed that she needed to get to her son. Pet. App. 8a,

76a–77a, 88a; J.A. 5–6, 22–23.

Masked FBI agents shoved open the door to the

closet where Cliatt and Martin had barricaded

themselves, dragging Cliatt out, shackling him on the

bedroom floor and aggressively interrogating him

until the officers realized that they were at the wrong

house. Pet. App. 8a, 79a.

Meanwhile, Martin was forced at gunpoint to

remain crouched half-naked in the bedroom closet,

desperately requesting to know whether her sevenyear-old son was alright. Pet. App. 89a. The only

response that she received was a masked FBI agent’s

gun in her face and the instructions to keep her hands

up, forcing her to remain in that position while

8

wearing only a small t-shirt and no undergarments.

Pet. App. 89a.

While the agents aggressively questioned Cliatt

as he lay handcuffed on the floor, he eventually told

them his address, 3756 Denville Trace, and “all the

noise just ended.” Pet. App. 8a, 79a. Cliatt heard one

of the FBI agents instruct an officer to “go check the

address.” Within approximately one minute, the

agent returned and, having discovered that the

SWAT team had invaded the wrong home, the agents

picked Cliatt up off the floor, unshackled him, and left

to conduct the raid at the correct address. Pet. App.

9a, 79a-80a.

Later, Guerra returned to Petitioners’ home,

apologized, gave Cliatt a business card with a number

to call, and informed him that Guerra’s supervisors

would take care of the damage done to the house,

including the front door hanging off its hinges. Pet.

App. 80a-81a.

Cliatt later called the number on the business

card and asked whether the FBI would pay for the

damage done. Cliatt was informed, “No, we don’t do

that.” Pet. App. 82a.

***

Congress enacted the FTCA in 1946 “to remove the

sovereign immunity of the United States from suits in

tort and, with certain specific exceptions, to render the

Government liable in tort as a private individual would

be under like circumstances.” Richards v. United States,

369 U.S. 1, 6 (1962); §§ 28 U.S.C. 1346(b)(1), 2680; Feres

v. United States, 340 U.S. 135, 139-140 (1950) (noting

Congress’s design to remedy “wrongs which would have

been actionable if inflicted by an individual or a

corporation but [were] remediless solely because their

perpetrator was an officer or employee of the

Government”).

9

The FTCA provides a cause of action for damages for

tort claims arising from the “act or omission of any

employee of the Government while acting within the

scope of his office or employment, under circumstances

where the United States, if a private person, would be

liable to the claimant in accordance with the law of the

place where the act or omission occurred.” 28 U.S.C.

§ 1346(b)(1).

Recognizing the barriers to relief for federal

misconduct and following two widely publicized wronghouse raids in Collinsville, Illinois (during which

innocent families were terrorized at gunpoint by federal

agents who wrongfully raided their homes), Congress

amended the FTCA in 1974. The amendment added a

law-enforcement proviso to the statute, 28 U.S.C.

§ 2680(h), which waived sovereign immunity for certain

intentional torts when committed by federal

investigative or law enforcement officers. The object of

the proviso is to ensure that “innocent individuals who

are subjected to raids [of the type conducted in

Collinsville and Bivens] will have a cause of action

against * * * the Federal Government.” Carlson v. Green,

446 U.S. 14, 20 (1980) (quoting 1974 U.S.C.C.A.N. 2789,

2791 (1973)).

Specifically, the proviso withdraws 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.”

28 U.S.C. § 2680(h).

This Court had recognized an implied cause of action

against federal law enforcement officers for Fourth

Amendment violations in Bivens just a few years prior to

the 1974 amendment. Nevertheless, perceiving that

Fourth Amendment excessive-force claims and

10

intentional tort claims arising from the acts of law

enforcement officers often stem from the same conduct,

the Senate Committee on Government Operations (from

which the law-enforcement proviso originated)

concluded that “Federal agents are usually judgment

proof,” characterizing Bivens as a “rather hollow

remedy.” See 1974 U.S.C.C.A.N. at 2790. Thus,

recognizing the absence of any “effective legal remedy

against the Federal Government for the actual physical

damage, [much] less the pain, suffering and humiliation”

to which victims of wrong-house raids had been

subjected, Congress created a cause of action for the

express purpose of ensuring that victims could seek

damages “for the same type of conduct that is alleged to

have occurred in Bivens,” including assault, battery, and

false imprisonment. Id. at 2791; 28 U.S.C. § 2680(h).

ARGUMENT

I. POST-EGBERT, THE FTCA OFFERS THE ONLY

VIABLE PATH TO RECOVER DAMAGES FOR

VICTIMS HARMED BY FEDERAL LAW

ENFORCEMENT OFFICERS

This Court has long recognized that “every right,

when withheld, must have a remedy, and every injury its

proper redress.” Marbury v. Madison, 5 U.S. (1 Cranch)

at 163. However, under today’s prevailing immunity

framework, victims of federal law enforcement

misconduct face a gauntlet of obstacles to obtaining any

meaningful form of redress—and are often left with no

remedy at all.

Congress has not provided a private cause of action

for damages against federal officers who violate the

constitutional rights of American citizens. This Court

recognized an implied cause of action to seek damages in

Bivens v. Six Unknown Named Agents of Federal Bureau

of Narcotics for certain Fourth Amendment violations

committed by federal law enforcement officials, 403 U.S.

11

388 (1971). In recent years, however, the Court has all

but extinguished the availability of Bivens relief. See

Egbert, 596 U.S. at 492 (concluding that “no Bivens

action may lie” if there is any rational reason to think

that Congress, rather than the courts, should decide

whether to provide for a damages remedy—“as it will be

in most every case.”); see also Ziglar v. Abbasi, 582 U.S.

120, 135 (2017) (recognizing a cause of action under

Bivens is “a ‘disfavored’ judicial activity”).

Even if, in theory, a plaintiff were to convince a court

to recognize a Bivens remedy (i.e., by proving there is not

a single “reason to think that Congress might be better

equipped to create a damages remedy,” Egbert, 596 U.S.

at 492) and to allow the claim to proceed, current

qualified immunity jurisprudence imposes an additional

high hurdle to overcome. Qualified immunity insulates

federal officials from liability for even the most obvious

or egregious violations of Americans’ constitutional

rights, so long as an official can show that his or her

constitutional misconduct did not violate “clearly

established law,” which has been interpreted so

narrowly as to border on the absurd.

Notably, the modern qualified immunity doctrine

emerged not through Congressional enactment, but via

this Court’s decree.2 Harlow v. Fitzgerald, 457 U.S. 800

(1982). In practice, this judicially-crafted doctrine

amounts to a get-out-of-jail-free card for most

government officials—even those whom a judge has

2 Over 150 years ago, Congress passed § 1983 of the Civil Rights

Act of 1871 “to deter state actors from using the badge of their

authority to deprive individuals of their federally guaranteed

rights and to provide relief to victims if such deterrence fails.”

Wyatt v. Cole, 504 U.S. 158, 161 (1992). Nowhere in its text does

the statute refer to immunity. To the contrary, the language “is

absolute and unqualified,” with “[n]o mention … made of any

privileges, immunities, or defenses that may be asserted.” Owen

v. City of Independence, 445 U.S. 622, 635 (1980).

12

determined unambiguously violated a plaintiff’s

constitutional rights. They are shielded from legal

accountability so long as they can point to even the

slightest ambiguity in the law to argue that it was not

“clearly established” at the time of the constitutional

violation. Importantly, the ambiguity does not have to

lend itself to more than one reasonable interpretation: to

the contrary, any interpretation—however ludicrous—

will do. Courts across the country have increasingly

approached the “clearly established law” standard as a

rigid, highly exacting test, which requires that plaintiffs

rely on precedent containing nearly identical facts to

show that an official had “fair notice” that his conduct

was unconstitutional at the time of the rights violation.

See, e.g., Latits v. Phillips, 878 F.3d 541 (6th Cir. 2017)

(granting police officers qualified immunity despite

finding of Fourth Amendment violation where officers

rammed driver off road, shot driver three times despite

driver posing no threat, and later made false statements

about the incident—because the law was not “clearly

established.”).

As a result, victims of federal misconduct—faced

with the narrowing prospects of Bivens relief and the

near-impossible hurdle imposed by modern qualified

immunity doctrine—will often find no clear pathway to

recover damages.3 The authority to execute search and

The increasingly commonplace practice of task force crossdeputization throughout the country further complicates

matters for plaintiffs seeking damages against law enforcement

officers. While serving on joint federal-state task forces, crossdeputized law enforcement officers frequently operate under the

authority of both federal and state law but, in many cases,

cannot be held liable under either. Many courts have adopted a

categorical presumption that when an officer is cross-deputized

on a federal task force, he or she acts “exclusively under color of

federal law,” not under color of state law. See, e.g., Mohamud v.

Weyker, No. 17-2069 (8th Cir. 2024) (pending). This means that

even when an officer violates an individual’s rights while

3

13

arrest warrants, detain suspects, and use force

(including lethal force) to enforce the law is undoubtedly

necessary to preserving safety and order. However, when

federal officers abuse this immense power, or wield it

excessively, the consequences for Americans can be

especially severe. Innocent people have had their homes

wrongfully raided and destroyed, been terrorized at

gunpoint, subjected to physical assault, unlawfully

detained, and, in some instances, killed. Yet even in the

face of the most egregious constitutional misconduct, it

is exceedingly difficult to hold federal officers

accountable, and victims subjected to unlawful searches,

seizures, and excessive force have little recourse for the

harm that they suffer at the hands of negligent (or even

rogue) federal actors. E.g., Smith v. Arrowood, No. 6:21CV-6318, 2023 WL 6065027 (W.D.N.Y. Sept. 18, 2023)

(no liability for officers who forcibly entered unarmed

plaintiff’s home without a warrant, without uniforms,

and without announcing that they were officers, shot

plaintiff multiple times at point-blank range, causing

broken bones, collapsed lung, nerve damage, and other

serious injuries).

Notwithstanding Congress’s explicit judgment, as

reflected in the plain language and context of the FTCA’s

law-enforcement proviso, that individuals harmed by

federal law enforcement officers for specified torts may

seek redress in court, see supra, Statement of Relevant

Facts, the Eleventh Circuit’s ruling guts the proviso and

reimports sovereign immunity where Congress had

expressly barred it.

exercising state police powers in his own community, the victim

cannot sue under § 1983 (which only covers acts committed

under color of state law). At the same time, following Egbert, any

attempt to sue such an officer under Bivens for the very same

misconduct will almost certainly be barred. See Egbert, 596 U.S.

482.

14

The facts of this case exemplify why Congress chose

to waive the sovereign immunity of the United States

under such circumstances: an innocent family was

awakened before dawn by flash grenades and the sound

of intruders invading their home; they were then

terrorized, held at gunpoint, interrogated, and shackled

by members of an FBI SWAT team, which had only

raided the wrong house because the agent in charge of

the operation declined to check the clearly marked house

number on the mailbox in front of Petitioners’ home. Pet.

App. 7a-8a, 76a, 80a.

Yet the Eleventh Circuit—when faced with FTCA

claims alleging a wrong-house raid along the lines of

those that prompted Congress to enact the lawenforcement proviso in the first place—nevertheless

determined that Petitioners did not have access to any

remedy for the egregious wrongs that they had suffered

because that harm was the result of a federal official’s

“discretionary” act. This interpretation impermissibly

expands the FTCA’s so-called discretionary-function

exception, one of the statute’s several categories of

exemptions, transforming it into yet another layer of

immunity barring victims from recourse for government

misconduct.

The discretionary-function exception reinstates

sovereign immunity for claims based on the “exercise or

performance or the failure to exercise or perform a

discretionary function or duty on the part of a federal

agency or an employee of the Government[.]” 28 U.S.C.

§ 2680(a). This Court has made clear in its decades of

precedent that the discretionary-function exception

applies only to claims for acts “grounded in regulatory

policy,” United States v. Gaubert, 499 U.S. 315, 323, 325

& n.7 (1991) (discretionary-function exception protected

actions by banking regulators, adopted pursuant to

statutory grant of authority under which agency

authorized regulators to weigh appropriateness of

15

agency’s supervisory actions), or “grounded in social,

economic, and political policy.” United States v. Varig

Airlines, 467 U.S. 797, 814 (1984) (discretionary-function

exception protected acts of FAA employees in executing

“spot-check” program adopted pursuant to discretion

vested by Congress to prescribe inspection regime for

airplanes). Cf. Hatahley v. United States, 351 U.S. 173,

181 (1956) (federal agents’ seizure of horses was not

protected under the discretionary-function exception, as

their “acts were wrongful trespasses not involving

discretion on the part of the agents”).

Several circuits, including the Eleventh, have

expanded the exception’s definition of “discretionary” to

encapsulate virtually all federal conduct, including

garden-variety law enforcement blunders, negligence,

and abuses. Indeed, according to the Eleventh Circuit,

the only time that the discretionary-function does not

apply is “when a federal employee acts contrary to

a specific prescription in federal law—be it a statute,

regulation, or policy.” Shivers v. United States, 1 F.4th

924, 931 (11th Cir. 2021) (“the discretionary function

exception applies unless a source of federal law

specifically prescribes a course of conduct”) (internal

quotations omitted).

As discussed in depth below, the Eleventh Circuit’s

ruling is gravely flawed for two reasons: (1) it

impermissibly distorts and expands the FTCA’s

discretionary-function exception, such that the exception

swallows the later-enacted law-enforcement proviso,

rendering Congress’s will a dead letter; and (2) it

nonsensically inverts the Supremacy Clause, using it to

nullify claims under the FTCA—a federal statute—and

to eliminate a cause of action expressly provided for by

Congress. Martin v. United States, No. 23-10062, 2024

WL 1716235 (11th Cir. Apr. 22, 2024).

16

Under the Eleventh Circuit’s interpretation of the

Supremacy Clause, if a federal official’s tortious

misconduct has “some nexus with furthering federal

policy” and could “reasonably be characterized” as

complying with the “relevant constitutional standard”

(in this case, the Fourth Amendment), then FTCA claims

(necessarily grounded in state tort law) would “impede

or burden the execution of federal law,” and thus be

barred by the Supremacy Clause. Id. at *6. The Eleventh

Circuit is the only circuit that has adopted this farfetched bar on FTCA claims—and for good reason. To

state the obvious (as Petitioners point out), the Federal

Tort Claims Act is a federal law, which means that it is

the “supreme Law of the Land,” and thus does not—and

cannot—conflict with the Supremacy Clause. Pet. Br. at

47.

If permitted to stand, the lower court’s ruling would

effectively bestow blanket immunity from FTCA liability

on federal law enforcement officers for any actions made

while “on the job,” while leaving Americans without

redress for the very harms for which Congress enacted

the statute to supply a remedy.

II. THE DISCRETIONARY-FUNCTION EXCEPTION

DOES NOT BAR CLAIMS ARISING FROM THE

LAW-ENFORCEMENT PROVISO

A. The Eleventh Circuit’s Ruling Defies the

FTCA’s Plain Text and Purpose

On its face, the FTCA’s law-enforcement proviso

bars sovereign immunity for claims of assault,

battery, and false imprisonment, among other

intentional torts, arising from the action or inaction

of federal law enforcement officers. § 2680(h). This

specific, targeted waiver should prevail over the more

general discretionary-function exception where the

two conflict. Nguyen v. United States, 556 F.3d 1244,

1252–53 (11th Cir. 2009). The Eleventh Circuit itself

17

initially agreed, holding in Nguyen that, “to the extent

of any overlap and conflict” between the lawenforcement

proviso

(§ 2680(h))

and

the

discretionary-function exception (§ 2680(a)), “the

proviso wins.” Id. Congress’s “later and more specific”

enactment—the 1974 proviso—intended to carve out

these law enforcement torts from immunity, even if

the tortious conduct involved some element of

discretion. Id. at 1253, 1257 (“[I]f a claim is one of

those listed in the [law-enforcement proviso], there is

no need to determine if the acts giving rise to it

involve a discretionary function; sovereign immunity

is waived in any event.”).

Reading the discretionary-function exception to

override the law-enforcement proviso would nullify

that carve-out and defy the canon of interpretation

requiring that a subsequent specific provision govern

the earlier, general one. Courts are not authorized to

“rewrite, revise, modify, or amend statutory language

in the guise of interpreting it, … especially when

doing so would defeat the clear purpose behind the

provision.” See id. at 1256 (citations omitted).

Moreover, Congress explicitly elected to waive the

sovereign immunity of the United States for precisely

the forms of misconduct at issue in this case. The 1974

proviso was a deliberate response to incidents of

federal law enforcement abuse—specifically, abuse

involving wrong-house raids of the homes of innocent

individuals like Petitioners. And as the Fifth Circuit

recognized, a broad reading of the discretionaryfunction exception to encapsulate law-enforcement

activities would effectively render the proviso a

nullity: “[I]f actions under the proviso must also clear

the

hurdle

of

the

discretionary

function

exception … even Bivens and Collinsville would not

pass muster and the law enforcement proviso would

fail to create the effective legal remedy intended by

18

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

1296 (5th Cir. 1987).

In other words, line agents executing searches or

arrests are not engaged in the kind of high-level policy

analysis that § 2680(a) was designed to protect. See

Garcia v. United States, 826 F.2d 806, 809 (9th Cir.

1987) (“While law enforcement involves exercise of a

certain amount of discretion on the part of individual

officers, such decisions do not involve the sort of

generalized social, economic and political policy

choices that Congress intended to exempt from tort

liability.”); Pooler v. United States, 787 F.2d 868, 871–

72 (3d Cir. 1986) (“Reading the intentional tort

proviso as limited to activities in the course of a

search, a seizure or an arrest as a practical matter

largely eliminates the likelihood of any overlap

between section

2680(a) and section

2680(h).”).

Extending the discretionary-function shield to

garden-variety law enforcement blunders or abuses

would subvert Congress’s unambiguous aim and deny

justice in the very situations that the proviso

addresses.

B. Agent Guerra’s Conduct Was Not a Policy

Decision—It Was a Grave Blunder Beyond

the Scope of the Discretionary-Function

Exception

Additionally, the discretionary-function exception,

by its own terms, does not apply to the conduct at

issue in this action. That exception protects

governmental actions and decisions involving an

element of “judgment or choice” (as opposed to being

mandated by statute, regulation, or policy) that are

“grounded in social, economic, or political policy.”

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

see also Gaubert, 499 U.S. at 322–23. Through the

discretionary-function exception, “Congress wished to

19

prevent judicial ‘second-guessing’ of legislative and

administrative decisions.” Varig Airlines, 467 U.S. at

814. Agent Guerra’s wrong-house raid squarely

flunks both prongs:

No “judgment or choice” (Prong 1): Guerra’s

conduct at issue bears no relation to the charting of

new policy or weighing strategic options. He was

tasked with a ministerial operation: execute a

warrant at a specific address, 3741 Landau Lane. The

FBI’s own operation order provided him with step-bystep driving directions, photographs of the target

house, and the exact address of the residence to be

searched (located in an accessible, residential

neighborhood). He had no discretion to select the

wrong house to raid. By straying to 3756 Denville

Trace (bearing the wrong house number and located

on the wrong street), Guerra violated the explicit

terms of the court-approved warrant and the FBI

operation order, which clearly prescribed the target

(including the house number on the mailbox out front

and the way to get there).

It is axiomatic that a federal officer has no

discretion to violate the law or ignore a clear

statutory, regulatory, or policy directive. Butz v.

Economou, 438 U.S. 478, 489 (1978) (“[A] federal

official may not with impunity ignore the limitations

which the controlling law has placed on his powers.”).

See also Red Lake Band of Chippewa Indians v.

United States, 800 F.2d 1187, 1196 (D.C. Cir.

1986) (“A government official has no discretion to

violate the binding laws, regulations, or policies that

define the extent of his official powers.”).

Just as a postal driver has no discretion to drive

negligently or take a detour that causes an accident,

a federal agent has no lawful discretion to conduct an

unauthorized raid on an innocent family’s home.

20

Agent Guerra’s deviation from the clear dictates of

the warrant, the operation order, and basic common

sense does not constitute a “discretionary” choice or

judgment worthy of sovereign immunity under the

discretionary-function exception.

No policy considerations (Prong 2): Even

assuming arguendo that there was some element of

valid

“discretionary”

judgment

in

Guerra’s

determination of how to locate the target address,

that choice was not grounded in policy execution or

analysis. That officers must take basic precautions,

such as verifying the house number in the warrant

before breaking down the door, and ensuring they are

in the correct location before commencing a raid are

so fundamental that it is somewhat alarming that

this even must be said. For FBI agents tasked with

coordinating high-risk SWAT operations and other

tactical maneuvers, ensuring that a SWAT team is at

the correct house pre-raid surely falls among the most

basic of precautionary requirements, with zero

bearing on the furtherance or balancing of policy

objectives.

Indeed, the Second Circuit has rightly noted that

when officers mistakenly detain the wrong person or

raid the wrong house, such actions are “not the kind

that involve weighing important policy choices,” but

rather individual oversights in carrying out duties.

Caban v. United States, 671 F.2d 1230, 1233 (2d Cir.

1982) (actions of INS agents who wrongly detained an

individual were “not the kind that involve weighing

important policy choices.”). Likewise, the D.C. Circuit

has observed that applying the FTCA’s intentionaltort waiver to line officers will seldom implicate

policy-driven discretion. Gray v. Bell, 712 F.2d 490,

508 (D.C. Cir. 1983) (if the law-enforcement proviso is

read to primarily include police officers and related

law enforcement officials, “whose jobs do not typically

21

include discretionary functions,” then the proviso will

rarely be barred by the discretionary-function

exception).

Here, Agent Guerra’s lapse—i.e., failing to check

an address, which Guerra knew to be clearly

displayed on the mailbox out front—bears no

resemblance to agencies’ or officials’ acts in

furtherance of public or regulatory policy that the

discretionary-function exception was designed to

protect. Rather than furthering any agency policy,

Guerra’s mistake contravened FBI objectives and

basic competence. No social or political policy is

advanced by wrongfully bursting into the private

home of a sleeping family at 5 a.m. and terrorizing

innocent citizens. Nor is any legitimate public policy

furthered by protecting officers from suffering any

consequences for exceedingly negligent actions. On

the contrary, allowing for liability in these types of

cases furthers important policies, such as

incentivizing the federal government to adequately

train its employees via internal mechanisms (such as

withholding promotions or pay increases for

violations) to motivate officers to exercise a basic level

of care before breaking into a family’s home and

terrorizing them in the middle of the night.

Conducting a raid at the wrong location is not a

discretionary policy decision, but an action borne from

utter negligence and a failure to exercise the most

elemental caution that should be expected of law

enforcement officers. Agent Guerra had ample

information available to him (e.g., photos, maps, stepby-step navigation instructions, prior surveillance)

and encountered no unforeseen obstacles or exigent

circumstances that could possibly excuse his failure

to take the most basic precautions before ramming

down the door of a private residence—yet he still

failed to check the house number outside and raided

22

the incorrect home on the incorrect street. According

to the Eleventh Circuit, Guerra’s failure to check the

address was excusable because it was “dark outside

and difficult to ascertain the house numbers on the

mailboxes.” Martin, 2024 WL 1716235, at *5. But the

idea that an FBI special agent—trained for high-risk

raids and tactical operations (many of which,

presumably, occur at night)—could not be expected to

navigate darkness during a pre-dawn operation

strains credulity. In an era in which even the simplest

mobile phone now comes equipped with a flashlight,

the notion that a special federal law enforcement

agent was powerless against the dark is as

indefensible as it is absurd.

Holding the United States answerable for such an

error does not second-guess a policy. It merely

provides a path to recovery for innocent citizens

harmed by a federal officer’s blatant lapse in

execution, which resulted in the terrorizing, assault,

battery, and false imprisonment of an innocent

family.

The discretionary-function exception does not

license a law enforcement officer to claim “discretion”

to violate explicit directives (including constitutional

mandates) or citizens’ rights. Indeed, an unlawful

action is, by definition, an abuse of whatever

discretion was entrusted. Nothing in the

discretionary-function exception suggests that

Congress intended to protect acts that exceed an

officer’s legal authority or that are borne out of sheer

negligence and a failure to exercise the most minimal

degree of caution that should be expected of law

enforcement officers (especially when Congress

simultaneously

expanded

liability

for

law

enforcement abuses). In short, the discretionaryfunction exception must be read in harmony with the

law-enforcement proviso. When a claim arises from

23

intentional torts committed by federal officers, and

the conduct is far removed from any policy-driven

decisionmaking, as is the case here, § 2680(a) does not

bar the courthouse door.

III. THE ELEVENTH CIRCUIT’S DISTORTION OF

THE SUPREMACY CLAUSE IMPERMISSIBLY

NULLIFIES CONGRESS’S WAIVER OF IMMUNITY

A. The FTCA—a Federal Statute—Does Not

Conflict with the Supremacy Clause

The Eleventh Circuit has invoked the Supremacy

Clause, Art. VI, cl. 2, to effectively create a new form

of immunity against FTCA claims, insulating federal

law enforcement officials while depriving victims of a

remedy. In its ruling below, the court reasoned that if

Agent Guerra “acted within the scope of his

discretionary authority” and his actions can be

“reasonably … characterized as complying with the

full range of federal law,” then state tort law must

give way. Martin, 2024 WL 1716235, at *6. Under

such circumstances, the court held, the FTCA has no

effect—supposedly because allowing liability would

“impede” the governmental interest in a federal

performance of an official duty or function. Id. This

rationale is deeply flawed.

The Supremacy Clause ensures that when state

law conflicts with a valid federal law, the federal law

prevails. Here, the relevant federal law is the FTCA

itself, which expressly authorizes “a plaintiff to bring

certain state-law tort suits against the Federal

Government.” Brownback v. King, 592 U.S. 209, 210–

211 (2021) (citing 28 U.S.C. § 2674). The FTCA—a

federal statute—does not, and cannot, conflict with

the Supremacy Clause.

Congress has adopted state tort standards as the

basis for liability in FTCA cases. Accordingly,

applying Georgia’s negligence or battery law to Agent

24

Guerra’s actions is not an intrusion on federal

supremacy but rather the very mechanism Congress

chose to enable accountability. The Eleventh Circuit

turned the Supremacy Clause on its head by using it

to nullify a federal statute. It is not necessary for

Congress to provide explicitly that state law applies—

Congress did so in the FTCA, and the Supremacy

Clause cannot be wielded to imply immunity where

Congress explicitly waived it. Yet the decision below

misappropriates the Clause to immunize an officer’s

overreach beyond his lawful authority, in an utter

inversion of supremacy principles.

To be sure, the concept of “Supremacy Clause

immunity” exists in a narrow context: historically, it

has served to protect federal officers from civil and

criminal liability under state law for actions

authorized by federal law and “necessary and proper”

to carry out federal duties. In re Neagle serves as a

prototypical example. 135 U.S. 1 (1890). There, the

Court concluded that Supremacy Clause immunity

shielded a U.S. Marshal from state murder charges

when he acted under federal orders. But the test has

always been whether the officer (1) was authorized by

federal law, and (2) “did no more than what was

necessary and proper” in discharging his or her

duties. Neagle, 135 U.S. at 75. If an officer violates the

Constitution or exceeds his authority, then

Supremacy Clause immunity does not apply. See

Butz, 438 U.S. at 489.

Here, Agent Guerra’s raid of the wrong home was

not authorized by his federal warrant—it was, in fact,

an act executed in direct opposition to what federal

law (the Fourth Amendment and the warrant)

dictated. Thus, traditional Supremacy Clause

immunity principles would not shield Agent Guerra

from personal liability under state law in these

circumstances.

25

In any event, the critical point is that Congress

has displaced that judicially-crafted immunity by

enacting a federal cause of action: the FTCA. Once

Congress has chosen to permit suits against the

United States for a federal officer’s torts, the courts

may not reimpose immunity based on generalized

federal interests. Such action violates basic

separation-of-powers principles. The Eleventh Circuit

stands alone in its application of the Supremacy

Clause, and even the United States has abandoned

defending that rule in this Court. Pet. Br. at 47. There

is simply no constitutional basis for overriding

Congress’s waiver of immunity in the name of

protecting garden-variety federal officer operations.

B. The Eleventh Circuit’s Infusion of

Qualified Immunity into the Assessment

of FTCA Claims Is Inappropriate and

Legally Unfounded

Equally troubling, the Eleventh Circuit has

rendered the Supremacy Clause bar even broader by

tying it to the qualified immunity analysis. It

suggested that whenever an officer is acting within

the scope of his “discretionary authority” (the

threshold for qualified immunity) and is not clearly

violating the Constitution (i.e., would receive

qualified immunity), then the Supremacy Clause

forecloses FTCA liability. Martin, 2024 WL 1716235,

at *7 (applying the prior qualified immunity analysis

to Petitioners’ FTCA claims). This approach

improperly conflates a personal immunity defense

with the FTCA’s statutory scheme.

Qualified immunity’s “clearly established law”

test has no place in an FTCA suit, where the question

is whether a private person would be liable under

state law in analogous circumstances. The policy

rationale

for

qualified

immunity—protecting

26

individual officers from unpredictability and personal

financial exposure—does not apply when the United

States is the defendant. Congress deliberately chose

to provide for liability of the United States for its

employees’ torts precisely so that victims could

recover without having to overcome individual

immunities. By erroneously importing qualified

immunity into the FTCA, the Eleventh Circuit

created a mutant hybrid defense with no foundation

in the Act. Whether Agent Guerra’s actions were

“reasonable under the circumstances” for Fourth

Amendment purposes is irrelevant to whether they

were wrongful under Georgia tort law. Petitioners

here allege traditional torts—e.g., negligence in

executing the warrant, false imprisonment, assault

and battery in the forcible entry—and those should be

adjudicated on their merits under state law

standards. The exacting “clearly established” law

standard of modern qualified immunity doctrine

should play no role in barring a congressionallyauthorized tort claim.

Accordingly, this Court should reject the Eleventh

Circuit’s attempt to collapse FTCA liability into the

qualified immunity framework and reaffirm that the

FTCA means what it says: the United States is liable

“in the same manner and to the same extent as a

private individual under like circumstances,” 28

U.S.C. § 2674, without judicially crafted exceptions

rooted in immunity doctrines foreign to the statute.

The combined effect of the decision below is

staggering. Under the Eleventh Circuit’s rule,

whenever a federal officer is exercising some degree

of discretion or choice in the course of doing his job,

neither he nor the United States can be held liable for

injuries that he may cause—no matter how severe or

unjustified. This notion would close the courthouse

doors on nearly all wrongdoing short of outright frolic

27

and detour. Such a result cannot be reconciled with

the FTCA’s core purpose of providing remedies for

victims. The Supremacy Clause exists to uphold

federal law, not to abolish remedies Congress has

seen fit to provide. This Court should firmly reject the

Eleventh Circuit’s atextual enlargement of immunity.

IV. AGENT GUERRA’S CONDUCT DOES NOT

WARRANT IMMUNITY UNDER ANY OF THE

FTCA’S EXCEPTIONS

The facts of this case underscore why Congress

provided an FTCA remedy—and how unjust it would

be to deny it here. Petitioners were awakened in the

pre-dawn darkness by a team of armed officers

breaching their home without warning. Petitioner

Mr. Cliatt was forced to the floor at gunpoint and

handcuffed. Petitioner Ms. Martin, who had been

asleep in minimal clothing, had an assault rifle

pointed at her as she desperately sought assurance of

her son’s safety, which the officer refused to give her.

The terror and humiliation they experienced are

exactly what one would expect when a home is

wrongly raided. These are not trivial or technical

injuries. They are profound violations of personal

security and dignity that cause lasting trauma, which

have been actionable at law for centuries (as trespass,

assault, false imprisonment, and negligence).

Agent Guerra’s own admissions cement the

unreasonableness of his actions. Despite having the

correct address in hand (along with maps, GPS,

photos of the target house, and step-by-step

navigation instructions), he wound up at the wrong

home and did not verify the house number before

ordering the raid. He fixated on a black Camaro in the

driveway—a car with no link to the suspect—and

assumed that he was at the right location. Not only

did he fail to ensure that he was at the correct house

28

number, he also led his team to the wrong street

(Denville Trace, not Landau Lane) without noticing.

Tellingly, Guerra discarded his personal GPS device

shortly after the incident, conveniently preventing

verification of his story in discovery. And although

FBI guidelines gave him flexibility on how to

navigate, they assumed that agents use basic common

sense—something as fundamental as confirming an

address does not require a written rule.

The district court and Eleventh Circuit, however,

short-circuited the case on immunity grounds—first

finding Agent Guerra entitled to qualified immunity

on Petitioners’ Bivens Fourth Amendment claim

(concluding that the law was not “clearly

established”), and subsequently transposing that

outcome onto the FTCA claims via the Supremacy

Clause and discretionary function rationales. In doing

so, the lower courts misconstrued the facts and the

law. The district court suggested that Guerra’s preraid preparations (a cursory site drive-by and reliance

on others’ surveillance) constituted “significant

precautionary measures.” Martin v. United States,

631 F. Supp. 3d 1281, 1294 (N.D. Ga. 2022) (cleaned

up). But that confuses form with substance. What

matters is whether the precautions were reasonable

and sufficient to avoid the harm. Here, they plainly

were not, as evidenced by the traumatic result. The

Eleventh Circuit’s expansive view of immunity not

only misreads the law, but it also perpetrates a

profound unfairness in this case, shielding plainly

wrongful conduct from accountability.

It bears repeating that Congress specifically

enacted the law-enforcement proviso so that cases

like this could be heard on the merits. When federal

agents overstep their lawful bounds and commit

assaults or unlawful intrusions in violation of

innocent civilians’ rights, the FTCA provides victims

29

with a cause of action. That does not mean that

plaintiffs will always succeed on their claims. Indeed,

they must still adequately plead their claim and

overcome any traditional defenses available under

state law. But it does mean they are entitled to their

day in court. No judge-made overlay of immunities

may stand in the way of a duly enacted statute.

Agent Guerra’s actions, resulting in an

unjustifiable raid on an innocent family’s home, were

neither protected discretionary decisions nor incident

to any legitimate federal interest in a way that could

trigger Supremacy Clause concerns. Rather, Guerra’s

actions constituted precisely the type of tortious

conduct for which Congress expressly provided a

remedy when it enacted the FTCA. Restoring

Petitioners’ ability to pursue that remedy will

reaffirm the principle that federal law enforcement

officers are not above the law, and that for those

aggrieved by governmental misconduct, the courts

remain open to right those wrongs. The Supreme

Court should seize this opportunity to restore the will

of Congress and ensure that the FTCA’s promise of

redress does not become a dead letter.

CONCLUSION

For the foregoing reasons, amicus curiae respectfully

requests that the Court reverse the Eleventh Circuit and

remand this action for further proceedings.

Respectfully submitted,

Casey Norman

Counsel of Record

Jenin Younes

Mark Chenoweth

30

NEW CIVIL LIBERTIES ALLIANCE

4250 N. Fairfax Drive, Suite 300

Arlington, Virginia 22203

(202) 869-5210

Casey.Norman@NCLA.legal

Counsel for Amicus Curiae