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Sovereign Immunity and Prison Guards

Generally, the United States has sovereign immunity from civil lawsuits.  Congress has made exceptions, most notably in the Federal Tort Claims Act.  In Millbrook v. United States, No. 11-10362, a federal prisoner claims he was sexually assaulted by prison guards. The Third Circuit held:

Millbrook contends that the defendant is liable under the FTCA for the alleged assault on March 5, 2010. Under 28 U.S.C. § 2680(h), the United States is generally not liable for intentional torts of its employees except for certain intentional torts committed by investigative or law enforcement officers. See 28 U.S.C. § 2680. We have limited claims that arise under § 2680(h) to cases in which an intentional tort is committed by a law enforcement or investigative officer while executing a search, seizing evidence, or making arrests for violations of federal law. Pooler, 787 F.2d at 872. Defendant argued that because the alleged assault did not arise out of conduct during an arrest, search, or seizure, Millbrook's tort claim is not cognizable.

The Third Circuit agreed that the defendant (the government) was correct.  "Thus, we agree with the District Court that while the alleged conduct is troubling, Millbrook has not shown that he is entitled to relief under the FTCA."  (He can sue the guards, but Uncle Sam has a vastly deeper pocket.)

The Supreme Court granted certiorari today.  The Court stated the Question Presented in its order: "Whether 28 U.S.C. §§1346(b) and 2680(h) waive the sovereign immunity of the United States for the intentional torts of prison guards when they are acting within the scope of their employment but are not exercising authority to 'execute searches, to seize evidence, or to make arrests for violations of Federal law.' "

If the QP sounds a little odd, it's an odd statute:
28 U.S.C. §2680. Exceptions:

The provisions of this chapter [the FTCA] and section 1346(b) of this title shall not apply to-- ...

(h) Any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights: Provided, 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.

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