Adjusting Immunity for Unconstitutional Torts

University of Chicago Legal Forum Volume 2024 Article 13 2025 Adjusting Immunity for Unconstitutional Torts Liam Grah Follow this and additional works at: https://chicagounbound.uchicago.edu/uclf Part of the Law Commons Recommended Citation Grah, Liam (2025) "Adjusting Immunity for Unconstitutional Torts," University of Chicago Legal Forum: Vol. 2024, Article 13. Available at: https://chicagounbound.uchicago.edu/uclf/vol2024/iss1/13 This Article is brought to you for free and open access by Chicago Unbound. It has been accepted for inclusion in University of Chicago Legal Forum by an authorized editor of Chicago Unbound. For more information, please contact . Adjusting Immunity for Unconstitutional Torts Liam Grah† ABSTRACT Sovereign immunity protects the government from liability arising in suits brought against it by citizens. Though lacking a firm constitutional basis, sovereign immunity has been justified as protecting the public fisc and maintaining the sense of sovereign dignity. The Federal Tort Claims Act (FTCA) broadly waives sovereign immunity for tort claims against the United States. The discretionary function exception maintains immunity for tortious acts committed by employees acting within the valid bounds of their discretion. There is a circuit split about whether the discretionary function exception immunizes tortious conduct that is also unconstitutional. Circuits in the majority side of the split interpret the discretionary function to never immunize unconstitutional torts. Minority circuits understand the exception to apply to all covered tortious conduct on the part of governmental employees, even acts that violate the Constitution. This Comment argues that the discretionary function exception should only immunize unconstitutional tortious conduct when the actions do not violate clearly established constitutional rights of which a reasonable officer would have known. This solution better serves the purposes of sovereign immunity and the discretionary function exception than either side of the existing circuit split. I. INTRODUCTION Sovereign immunity is a legal doctrine imported from England that prohibits private citizens from suing the federal government without its consent.1 The Federal Tort Claims Act (FTCA), passed by Congress in 1946, waives sovereign immunity for certain tort claims and allows plaintiffs to sue the government itself.2 Though the FTCA was enacted † B.A., University of California, Berkeley, 2021; J.D. Candidate, The University of Chicago Law School, 2025. I would like to thank Professor John Rappaport for his invaluable help refining this Comment and the incredible work of the Legal Forum staff. 1 See generally MICHAEL D. CONTINO & ANDREAS KUERSTEN, CONG. RSCH. SERV., R45732, THE FEDERAL TORT CLAIMS ACT (FTCA): A LEGAL OVERVIEW 1 (2023); see also Limone v. United States, 579 F.3d 79, 88 (1st Cir. 2009) (“Federal courts lack jurisdiction over tort actions against the United States except insofar as the sovereign has consented to be sued.”). 2 See 28 U.S.C. § 1346(b)(1). 427 428 THE UNIVERSITY OF CHICAGO LEGAL FORUM [2024 to expand the government’s liability to tort suits, the statute includes many exceptions that limit the waiver of sovereign immunity.3 Section 2680(a), known as the “discretionary function” exception, “preserves the federal government’s immunity . . . when an employee’s acts involve the exercise of judgment or choice.”4 Thus, when a government employee5 has discretion to make a choice of action on the job, the discretionary function exception serves to protect the government from tort liability that may arise from the exercise of their employee’s judgment.6 Consequently, the discretionary function exception acts as a chokepoint through which all claims seeking to abrogate sovereign immunity and impose liability upon the government must pass. Since the FTCA and the exception apply to a broad set of actions, the discretionary function exception has been invoked in many situations concerning national security.7 Section 2680(a) has been invoked in military sexual assault cases, by Branch Davidians harmed during the federal siege of their Waco compound, against federal law enforcement officers,8 and by Libyan citizens to recover from injuries caused by U.S. missile strikes under the Reagan administration.9 Reimagining the security of the United States must consider individuals’ ability to recover from harms perpetuated by government actors. Without a rational remedial scheme for torts committed by the government, many citizens are left without redress. The discretionary function exception is central to the federal tort remedial scheme and is thus critical to broader national security discussions. Circuit courts disagree over whether the discretionary function exception can be invoked to maintain sovereign immunity when the government’s alleged tortious conduct is unconstitutional. The majority of circuits, including the First, Second, Third, Fourth, Fifth, Eighth, Ninth, and D.C. circuits, hold that the discretionary function exception cannot immunize the government from liability for the tortious constitutional violations of its employees.10 The minority of circuits, chiefly the Seventh and Eleventh circuits, have held that § 2680(a) operates to 3 See 28 U.S.C. § 2680. Tsolmon v. United States, 841 F.3d 378, 380 (5th Cir. 2016) (citing United States v. Gaubert, 499 U.S. 315, 322 (1991)); see also 28 U.S.C. § 2680(a). 5 See 28 U.S.C. § 2671 (defining “employee of the government” for purposes of the FTCA to include officers or employees of any federal agency, members of the military or naval forces of the United States, certain members of the National Guard, persons acting on behalf of a federal agency in an official capacity, and certain employees of federal public defender organizations). 6 See § 2680(a). 7 See Paul F. Figley, Understanding the Federal Tort Claims Act: A Different Metaphor, 44 TORT TRIAL & INS. PRAC. L.J. 1105, 1124–25 (2009) (collecting cases). 8 Contino & Kuersten, supra note 1, at 2. 9 Saltany v. Reagan, 886 F.2d 438, 439 (D.C. Cir. 1989). 10 See, e.g., Loumiet v. United States, 828 F.3d 935, 943 (D.C. Cir. 2016). 4 427] ADJUSTING IMMUNITY FOR UNCONSTITUTIONAL TORTS 429 shield the government regardless of the conduct’s constitutionality, in line with a more capacious understanding of the discretionary function exception.11 The Sixth and Tenth circuits have not clearly expressed their stance on the split.12 Resolving the proper scope of the FTCA’s waiver of sovereign immunity is important to ensure that plaintiffs wronged by the federal government or its employees can recover through a rational and comprehensive remedial system. This Comment proposes a novel solution to the circuit split: the FTCA’s discretionary function exception should be understood to preserve sovereign immunity for discretionary government actions except those that violate clearly established const (...truncated)