Government Argues It's Too Much To Ask the FBI To Check the Address Before Blowing Up a Home
The Department of Justice told the Supreme Court there were "policy tradeoffs that an officer makes" in determining if he should "take one more extra precaution" to make sure he's at the right house.
The Supreme Court last week heard a case from a family whose home was wrongly raided by the FBI, after which they were barred from bringing their civil suit to trial. Before the Court: Should the plaintiffs have been able to sue the government under the Federal Tort Claims Act (FTCA)?
Oral arguments got into the weeds of the FTCA, under which plaintiffs Curtrina Martin and Toi Cliatt were prohibited from suing, even though Congress revised that law in the 1970s to give recourse to victims of federal law enforcement misconduct. But there was one particularly instructive exchange between the Court and Frederick Liu, assistant to the solicitor general at the Justice Department—a back-and-forth that is decidedly less in the weeds.
Liu: The officers here were weighing public safety considerations, efficiency considerations, operational security, the idea that they didn't want to delay the start of the execution of the warrants because they wanted to execute all the warrants simultaneously. Those are precisely the sorts of policy tradeoffs that an officer makes in determining, 'Well, should I take one more extra precaution to make sure I'm at the right house?' Here, Petitioner suggests, for example, that the officer should have checked the house number on the mailbox.
Justice Neil Gorsuch: Yeah, you might look at the address of the house before you knock down the door.
Liu: Yes. And, and, as the district court found at 52(a), that sort of decision is filled with policy tradeoffs because checking the house—
Gorsuch: Really?
Liu: —number at the end of the driveway means exposing the agents to potential lines of fire from the windows.
Gorsuch: How about making sure you're on the right street? Is that…you know, asking too much?
That the government indeed thinks it is asking too much to do basic due diligence here—a.k.a., requiring agents to ensure they are in the right place before detonating an explosive inside a home and ripping the door from its hinges—epitomizes the state's general allergy to accountability. More dire is that the argument has worked.
The FBI SWAT team "executed the warrant while it was still dark outside," wrote the U.S. Court of Appeals for the 11th Circuit in ruling against Martin and Cliatt last year, and "difficult to ascertain the house numbers on the mailboxes." The leader of the raid, Lawrence Guerra, thus acted reasonably, the court said, when he led officers to the wrong house. There, agents set off a flash grenade, took the front door off, stormed into the couple's bedroom, handcuffed Cliatt, and held the couple at gunpoint, rendering Martin unable to get to her seven-year-old son in a different room.
"I don't know if there is a proper word that I can use," to describe the fear she felt that night, Martin told Reason last year, prior to the Court taking up her case. "There's been a lot of incidents of negligence, and it's like no one takes accountability. And there needs to be awareness. It's really sad that the people that you look up to for protection are the ones that seem to harm you the most."
Also distressing: the government believes it should be able to pair stratospheric levels of power with proportionally low standards. It remains to be seen if the Supreme Court will agree.
