OTLA Trial Lawyer Spring 2021

23 Trial Lawyer • Spring 2021 See Law Enforcement Abuses p 24 from its waiver of sovereign immunity any claim arising out of certain inten- tional torts, including false imprison- ment and false arrest. But in 1974, Congress amended Section 2680(h) to add the so-called “law enforcement pro- viso .” The proviso relinquishes immunity against claims arising out of false arrest and false imprisonment (and a few other intentional torts) if the claim resulted from the conduct of an “investigative or law enforcement officer,” defined as “any officer of the United States who is em- powered by law to execute searches, to seize evidence, or to make arrests for vio- lations of federal law.” Congress passed the law enforcement proviso just three years after the Supreme Court decided Bivens , and in response to similar abusive search and seizure tactics. In the raids that precipitated the proviso , federal agents without warrants barged into homes, failed to clearly identify themselves, detained and frightened the people they found, and abruptly left after realizing they had targeted the wrong individuals. Boger, J., Gitenstein, M., Verkuil, P. “The Federal Tort Claims Act Intentional Torts Amendment: An Inter- pretive Analysis,” UNC L. Rev. Vol. 54, No. 4, 498, 500-501 (1976). The proviso was designed to provide an inde- pendent remedy against the federal government for such abuses. Legislative history suggests the drafters — somewhat naively, without considering the implica- tions of placing their new law within the existing framework of the FTCA — intended the proviso to operate as a more expansive counterpart to Bivens , pursu- ant to which the federal government would not be permitted to invoke the various defenses and immunity doctrines available to individual state actors under Bivens and Section 1983. Id. While the FTCA is not as restrictive as the Bivens doctrine, it is no panacea. The statute does not allow for attorney fees or for jury trials. It has an administra- tive exhaustion requirement that delays claims. And it involves hurdles of its own — in particular, claims are barred when based upon the exercise or failure to ex- ercise a “discretionary function.” 28 U.S.C.A. § 2680(a). An FTCA plaintiff may also still need to prove a constitu- tional violation, either to overcome the discretionary function exception or to prevail on a claim based on a theory of false arrest or false imprisonment. A defense against those torts is that the confinement at issue was lawful — in other words, that the federal officer had a warrant or the requisite probable cause to arrest. The plaintiff will thus need to argue that the officer’s actions violated the Fourth Amendment or parallel agency regulations. Proving violation Where does that leave the plaintiff? They may be barred from bringing a constitutional claim for damages due to the restrictiveness of Bivens . Their only option may be to pursue relief under the FTCA, thereby foregoing attorney fees and a jury trial. Yet they will likely still need to prove a constitutional violation (no easy task), even though they cannot obtain relief based on that claim. That result is unjust. As lawyers, we become accustomed to the idea there must be a “right of action” in order to bring a claim. But what is a constitu- tional right if there is no way to obtain meaningful relief when it is violated? Instead of being able to plead, prove and obtain damages based on constitutional violations, injured plaintiffs, in many instances, must articulate their constitu- tional claims through the lens of state tort law (via the FTCA), with the Con- stitution serving only as a limitation on federal defenses rather than as an inde- pendent limitation upon the exercise of federal power. That was exactly the result the Supreme Court rejected in Bivens . “[P]ower, once granted,” the Court wrote, “does not disappear like a magic gift when it is wrongfully used.” An agent