Federal Tort Claims Act Traditionally, the Federal

Federal Tort Claims Act

Traditionally, the federal government was immune from lawsuits by its citizens under a doctrine known as sovereign immunity. Theoretically, this immunity was justified because people would necessarily have disagreements with the government and resorting to the court system to help resolve those disputes could have resulted in a tremendous waste of time and energy. However, the situation left people with no solution when they were harmed by a person acting for the government, even if the action had nothing or little to do with the government's sovereignty. For example, under strict sovereign immunity, a person is unable to recover harms for routine torts such as slip-and-falls. Perhaps even more worrisome was the fact that, under strict sovereign immunity, people were unable to recover for intentional harms and torts inflicted by the government or government agencies, even when those harms violated federal laws. The Federal Tort Claims Act (FTCA) was the government's solution to this problem. The FTCA does not allow all lawsuits against the government for actions by government employees, but does provide very specific scenarios where the government can be sued for tortious conduct, as well as guidelines as to the appropriate method of making a claim against various government agencies.

Overview of the FTCA

When determining whether a lawsuit is permissible under the FTCA, a potential litigant needs to review several key components because governmental liability differs from liability outside of the governmental context. For example, the idea of respondeat superior is extremely limited in claims under the FTCA: "Only federal employees can be sued under the FTCA, not independent contractors hired by the federal government (unless they are treated like employees)" (NOLA, 2013). In addition, "the negligent or wrongful conduct must have been done within the scope of the defendant's employment" (NOLA, 2013). Furthermore, the FTCA does not cover all torts. "In general, only claims of negligence -- as opposed to intentional misconduct -- are allowed (though some claims for intentional misconduct can be brought against certain federal law enforcement officers)" (NOLA, 2013). Finally, the purpose of the FTCA is to abrogate sovereign immunity, not provide an underlying claim. On the contrary, "he claim must be based on -- and permitted by -- the law of the state in which the misconduct occurred" (NOLA, 2013).

FTCA and Intentional Torts

While the FTCA generally abrogates the concept of sovereign immunity, it does not completely eliminate the notion. There are a number of exceptions to governmental liability under the FTCA. Whether or not the exceptions apply "frequently becomes the central issue in a lawsuit brought under the FTCA. Notwithstanding the FTCA's general reference to and incorporation of state law, the interpretation and applicability of any of the statute's exceptions are matters of federal law" (Fuller, 2011). For the most part, intentional torts are absolutely not covered by the FTCA. This makes sense, as a person committing an intentional tort is breaking the law, and, therefore, presumably not acting within the scope of his or her authority on the job. Moreover, when a government worker acts in a tortious manner, it is generally clear to the person subjected to the tortious behavior that such conduct is outside of the actor's official conduct.

FTCA and Law Enforcement

The situation becomes more complex when the actor is a member of law enforcement. A person who is talking to a clerk at the I.R.S. is well aware that the clerk has no right to use bodily force against them. Therefore, any tortious behavior by the clerk would clearly be outside of that clerk's job responsibilities and duties. However, law enforcement officers are one type individual that might legitimately exercise the use of force in carrying out their jobs. Moreover, their legitimate use of force, and the very real consequences of what could occur to a victim if the victim were to use self-defense in response to that force, makes law enforcement officer who engage in tortious behavior a real danger to the public. Therefore, while the FTCA generally protects the government from liability in lawsuits based on intentional conduct, it makes a specific exception for law enforcement officers.

For the purposes of the FTCA, law enforcement officers are "anyone who can make arrests for violations of federal law, or seize evidence, or execute seizures" ( Solari, Unk.). Because it is frequently within the scope of employment for these people to engage in aggressive behavior, the government will pay "for intentional torts like assault, battery, false imprisonment, false arrest, malicious prosecution, and abuse of process if those torts were committed while within scope" (Solari, Unk.). Specifically, 28 U.S.C. § 2680(h) (2006) provides that. "with regard to acts or omissions of investigative or law enforcement officers of the United States Government, the provisions of this chapter and section 1346(b) of this title shall apply to any claim arising, on or after the date of the enactment of this proviso, out of assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution. For the purpose of this subsection, "investigative or law enforcement officer" means any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law" (28 U.S.C.S. § 2680(h)). Clearly, this provision means that the government will assume liability for intentional torts by federal law enforcement officers acting within the scope of their employment.