One of the more common mantras you hear about the federal court system is that its judges should not be making law—aka legislating from the bench—but should be interpreting and applying the law as it was written. A new case that may go before the Supreme Court would serve as a particularly loud reminder of that.
A bipartisan group of congresspeople—including Sens. Rand Paul (R–Ky.), Ron Wyden (D–Ore.), and Cynthia Lummis (R–Wyo.), along with Reps. Thomas Massie (R–Ky.), Nikema Williams (D–Ga.), Harriet Hageman (R–Wyo.), and Dan Bishop (R–N.C.)—are urging the high court to take up the case, which centers around a family whose home was wrongly raided by the FBI in the middle of the night and who were then denied the right to sue for damages.*
But the reason the family was denied was particularly perverse, the congresspeople wrote in a recent brief to the high court, arguing the U.S. Court of Appeals for the 11th Circuit turned the relevant law on its head when it blocked Curtrina Martin, the plaintiff, from suing.
On an early morning in 2017, Martin and her then-fiance, Hilliard Toi Cliatt, were awoken by the FBI detonating a flash grenade in their home and ripping their door from its hinges. The agents then made their way to their bedroom and found the couple hiding in the closet, where they had retreated in fear; an officer dragged Cliatt out and handcuffed him, while another pointed his gun and screamed at Martin, who says she fell on a rack in the rapidly unfolding mayhem. Her 7-year-old son was in his room, and she says her mind went to a dark place.
“I don’t know if there is a proper word that I can use” to capture the fear she felt, Martin told me this summer.
The FBI would not find who they came for, because the suspect didn’t live there, nor did he have any relation to Martin or Cliatt. When Martin sued, the 11th Circuit not only gave immunity to Lawrence Guerra, the leader of the SWAT raid, but the judges also said her claims could not proceed under the Federal Tort Claims Act (FTCA), the legislation that allows people to bring various state torts against the federal government.
Richly ironic, however, is that the FTCA was revised in the 1970s with a law enforcement proviso that greenlights suits against the federal government for intentional torts committed by federal law enforcement. The inspiration for that law, the congresspeople write, was two wrong-house raids in April 1973 on families in Collinsville, Illinois.
Those raids attracted national attention just over 50 years ago. On the evening in question, federal officers raided the home of Herbert and Evelyn Giglotto; about 30 minutes later, different agents raided the home of Donald and Virginia Askew. Neither home was an actual target of the federal government.
“Mr. and Mrs. Giglotto testified under oath today that they were handcuffed by screaming agents, thrown on their bed, verbally abused with a stream of obscenities and repeatedly threatened with death while an agent held a cocked gun to Mr. Giglotto’s head,” wrote The New York Times, reporting on testimony before the Senate in May 1973. “Much of their apartment was ransacked and damaged.”
Charles Percy, then a Republican senator from Illinois, presided over that hearing. “You can rest assured,” he said, according to the Times, “that I will find out who ordered this investigation.” He would go on to champion the law enforcement proviso of the FTCA.
The similarities between Martin’s experience and that of the Giglotto’s and the Askew’s are hard to ignore, as the congresspeople write in their brief to the Supreme Court.
“The [law enforcement] proviso’s plain text provides—and it was enacted specifically to guarantee—that victims of wrong-house raids by federal agents like the Collinsville families can seek redress from the United States over wrong-house raids,” they write. “Yet the Eleventh Circuit’s decision nullifies the law-enforcement proviso in precisely that circumstance.”
The debate over law enforcement accountability in the U.S. has been a tortured one. Qualified immunity—the legal doctrine that shields state and local government actors from federal civil suits if their alleged misconduct was not “clearly established” in prior case law—was conjured into existence by the Supreme Court. Despite some movement in 2020 and 2021, Congress has not fixed that legislatively. Many victims of alleged government abuse are thus foreclosed from finding relief.
But in Martin’s case, it appears, Congress did offer an applicable legislative solution—and the 11th Circuit countermanded it. “That asymmetry is untenable,” the congresspeople write, “and contravenes Congress’s deliberate decision 50 years ago to accept responsibility and provide redress to those harmed by federal law-enforcement officers’ misdeeds.”
*CORRECTION: The original version of this article misnamed a congressperson.
