Supreme Court Watch...

High court ponders gov't immunity for prison guard assault at issue is whether FTCA proviso applies to correction officers

By Kimberly Atkins
The Daily Record Newswire
 
The justices of the U.S. Supreme Court heard oral arguments Tuesday in an unusual tort case against the government, in which the government agreed that it was liable.

But the Court still considered both sides of the argument over whether prison guards are immune from intentional tort liability.

The plaintiff in Millbrook v. U.S., Kim Millbrook, filed suit under the Federal Tort Claims Act alleging that he was physically and sexually assaulted by prison guards while incarcerated at a federal prison in Lewisburg, Pa.

The FTCA allows liability claims against the U.S. government except in cases of intentional torts. But there is an exception to that exception involving intentional torts committed by “investigative or law enforcement officers of the United States,” who are “empowered by law to execute searches, seize evidence, or make arrests for violations of federal law.”

A U.S. District Court dismissed the claim, finding that the “law enforcement” proviso did not apply to corrections officers because they are not tasked with executing searches or seizures or making arrests. The 3rd U.S. Circuit Court of Appeals affirmed.

Millbrook’s petition for certiorari to the Supreme Court was granted.

The federal government declined to support the lower court’s ruling and instead filed a brief in support of Millbrook urging the Supreme Court to reverse and remand.

‘Change of heart’

Christopher J. Paolella, a partner at Reich & Paolella in Washington, argued on Millbrook’s behalf that the language of the statute “provides a waiver of sovereign immunity in clear, precise and unambiguous terms.”

The law allows liability against any “law enforcement officer acting within the scope of his or her employment,” Paolella argued.

Justice Ruth Bader Ginsburg asked what was the outside limit of this interpretation.

“Would that include, say, a meat inspector?” she asked, noting that many federal employees possess the power to search, seize property or even make arrests even if they are not thought of as law enforcement officers,

Paolella said the application need not go that far under the language of the statute. Meat inspectors are not “officers,” he said. “I believe that the term ‘officer’ carries some water here.”

Justice Antonin G. Scalia suggested the term may not cover prison guards.

An officer is someone who exercises “significant authority under the laws of the United States,” Scalia said. “That’s a pretty fuzzy line, but I’m not sure that a prison guard exercises significant authority under the laws of the United States.”

Anthony A. Yang, assistant to the U.S. solicitor general, argued as amicus in support of Millbrook, which required the Court to appoint counsel to defend the 3rd Circuit’s ruling.

He argued that nothing in the statute supports the argument that correctional officers must be “acting in a law enforcement capacity or by exercising law enforcement authority” for the waiver of immunity to apply.

“The United States didn’t take this position below, right?” asked Scalia.

“That is correct,” Yang replied.

“This is a change of heart,” Scalia said.

‘Flood of suits’
Jeffrey S. Bucholtz, a partner in the Washington office of King & Spalding, was appointed to argue that the 3rd Circuit’s ruling should be affirmed. He asserted that Congress chose its words for a reason: to limit the kinds of abuses for which it would consent to liability, not the kind of officers.

“It’s clear that Congress was trying to cover abuses of law enforcement authority, including malicious prosecution and abuse of process, which we know because Congress included those torts in the exception to the exception,” Bucholtz said.

“You are saying that the Government is trying to minimize the consequences … by providing a definition of the officers covered [rather than the conduct covered]?” Scalia asked.

“Justice Scalia, you have absolutely perfectly encapsulated our position,” Bucholtz said, drawing laughter. “Thank you.”

“Why should we give it the narrow reading you are giving, and not the broader reading the government seems to be suggesting?” Justice Sonia M. Sotomayor asked.

“It’s about congressional intent,” Bucholtz said. “The government’s [and] the petitioner’s interpretation would unleash a flood of suits by prisoners.”
A ruling is expected before the Court’s term concludes in June.

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