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Home / Courts / 4th Circuit / Tort/Negligence – FTCA – Assault – Pentagon Police Officer

Tort/Negligence – FTCA – Assault – Pentagon Police Officer

Ignacio v. U.S. (Lawyers Weekly No. 12-01-0341, 12 pp.) (Floyd, J.) No. 10-2149, March 16, 2012; USDC at Alexandria, Va. (O’Grady, J.) 4th Cir. Full-text opinion.

Holding: A Pentagon police officer who allegedly assaulted a contract security officer assigned to the Pentagon, while the two were stationed at a Pentagon security checkpoint, does not have sovereign immunity from a suit for assault under the Federal Tort Claims Act; the 4th Circuit reverses the district court decision that the U.S. was immune from suit because the police officer was not “engaged in investigative or law enforcement activities” when he allegedly assaulted plaintiff.

We hold that 28 U.S.C. § 2680(h) waives the U.S.’s sovereign immunity regardless of whether an officer is engaged in an investigative or law enforcement activity when he commits an assault.

On appeal, plaintiff argues that the law enforcement proviso waives immunity whenever a law enforcement officer acting within the scope of his employment commits an intentional tort and the district court erred in requiring that the officer commit the tort in the course of an investigative or law enforcement activity. We agree.

We recognize that district courts and some of our sister circuits have imported an additional bar based on analyses of the proviso’s legislative history and concerns that disparate treatment of federal employees may result if the proviso applies too broadly. Nevertheless, we note these courts relented to secondary modes of interpretation without first establishing the ambiguity of the statutory text. Where, as here, the text of the statute is unambiguous, we should not engage in an analysis of legislative history to find ambiguity.

Reversed and remanded.


Diaz, J.: I join in full Judge Floyd’s well-reasoned opinion but write separately to address the troubling inconsistency produced by application of the FTCA provisions at issue in this case. Our decision leads to the anomalous situation in which the federal government could be liable for the actions of a law enforcement officer but would be immune from liability for the same conduct committed by another federal employee under the same circumstances. Nevertheless, although such a result can be criticized as inconsistent and unreasonable, I cannot say it is so absurd as to allow us to alter the meaning – as other courts have – of an otherwise unambiguous statute.

When the language of a statute is subject to a plausible construction, we are compelled to follow the plain meaning. I concur in Judge Floyd’s opinion.

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