Harold J. Krent
95 Geo. Wash. L. Rev. Arguendo 1
Recent high-profile allegations of law enforcement misconduct have increased the importance of the Federal Tort Claims Act (“FTCA”) as a vehicle for remedying and deterring governmental officials’ abuse. This Essay argues that courts have interpreted the FTCA’s discretionary function exception, which the Supreme Court in Martin v. United States recently held applies in the law enforcement context, too broadly. It contends that many operational decisions by law enforcement officers do not reflect the policy judgments Congress intended to protect through the exception, and that supervisory directives warrant immunity only when the directives themselves embody protected policy choices. On the other hand, the discretionary function exception should block tort claims when such policy choices are present even if plaintiffs assert that law enforcement officers’ conduct crossed a constitutional line, unless the unconstitutionality was clear. Accordingly, this Essay seeks to preserve remedies for victims of law enforcement misconduct while protecting policy-driven governmental decision-making.
