A unanimous Supreme Court has made it easier to sue government agencies for assault and battery committed by federal law enforcement officers. (Millbrook v. United States, US Supreme Court No. 11-10362, March 27, 2013)
Kim Millbrook was a prisoner in the custody of the Federal Bureau of Prisons (BOP). He sued BOP under the Federal Tort Claims Act (FTCA), claiming that correctional officers had sexually assaulted and verbally threatened him while he was in the agency’s custody. Both the district court and the appeals court ruled for the government, holding that the FTCA permitted suits for so-called “intentional torts” committed by law enforcement officers such as those alleged in Millbrook’s case, but only when the conduct happened when the officers were involved in a search, seizing evidence, or making an arrest. Since the prison officials were not engaged in any of these specific activities, the FTCA exception did not apply and Millbrook’s suit was dismissed.
Millbrook took his case to the Supreme Court and won. Justice Thomas, writing for all the justices in a short, sweet 8-page decision, had this to say: “We hold that the waiver effected by the law enforcement proviso extends to acts or omissions of law enforcement officers that arise within the scope of their employment, regardless of whether the officers are engaged in investigative or law enforcement activity, or are executing a search, seizing evidence, or making an arrest.” (Emphasis added)
This decision is good news for federal law enforcement officials who increasingly have faced the prospect of being sued personally (under a “Bivens” style constitutional tort). When plaintiffs could not get redress from the employing agency for these kinds of intentional torts, they fashioned a “constitutional tort” and sued the individual officers. Sometimes they won judgments from the individual federal employees and sometimes they did not. Meanwhile the individual federal law enforcement officer had some pretty rough years wondering if he eventually would be held personally liable and ordered to pay damages from his own pocket. Now that the court has made clear that the FTCA affords a remedy as long as the officer was acting within the scope of his employment—even if his actions added up to an intentional tort—the plaintiffs will have to get redress under the FTCA.