Chief’s Counsel – July 2025

On April 29 of this year, the Supreme Court of the United States held oral arguments in the case of Curtrina Martin, Individually and as Parent and Next Friend of G.W., a Minor, Hilliard Toi Cliatt v. United States of America, Lawrence Guerra, Six Unknown FBI Agents, Martin v. United States, 631 F. Supp. 3d 1281 (N.D. Ga. 2022), aff’d 2024 WL 1716235 (11th Cir. Apr. 22, 2024), cert. granted in part, 145 S. Ct. 1158 (2025), on Petition for Certiorari from the Eleventh Circuit Court of Appeals. This Petition involved a predawn no-knock search warrant at the residence of a dangerous drug suspect executed here in Atlanta by agents of the Federal Bureau of Investigation in October of 2017, but the warrant was for the search of a different house than the one that was broken into by the agents.  In the course of the execution of the warrant, Ms. Martin’s front door was broken down; a flash bang grenade was detonated; agents pointed weapons at Ms. Martin and her boyfriend; they were placed in handcuffs; and all the while Ms. Martin’s seven-year-old son was in the next room screaming.  Upon discovering that they had raided the wrong house, the FBI agents presented Ms. Martin with their cards and told her to contact them about the property damage, and departed the premises.

A lawsuit was subsequently filed for violations of the Fourth Amendment and the unreasonable search and seizure and damages flowing therefrom against the United States of America, Lawrence Guerra, the agent in charge of the warrant execution, and six unnamed FBI agents.  In the District Court, a jury awarded Ms. Martin damages, but on appeal to the Eleventh Circuit Court of Appeals, that Court reversed the District Court and held in favor of the United States and Guerra based upon immunity from suit. Martin’s Petition for Writ of Certiorari to the United States Supreme Court was granted.

The Argument before the Supreme Court was widely covered in national and Georgia media due to the always controversial issues of law enforcement actions and immunities, together with the case’s troubling facts and its nexus with Atlanta.  The Justices had numerous questions concerning the propriety of immunity for the government and the officers.  Justice Ketanji Brown Jackson indicated in the hearing that while some law enforcement discretion must be protected, “perhaps not here,” suggesting the case might not qualify for immunity.  Justice Sonja Sotomayor questioned “how going into the wrong house” could ever been seen as a discretionary act protected by immunity.  Indeed, while most of the Court’s questions and responses from counsel in the arguments addressed federal immunity and the Federal Tort Claims Act (FTCA), the commentary and media reporting on these issues were using terms like “qualified” and “immunity” were in a more general descriptive sense.  For those in local government law enforcement here in Georgia, including Chiefs, there was confusion and questions concerning what effect this case could have on the important doctrine and scope of the application of “qualified immunity” to our officers as we understand it today.

The somewhat general coverage comments raised about Martin do not mean that this case will alter the current doctrine of qualified immunity or the current jurisprudence interpreting it.  There are significant differences in federal immunity and local government qualified immunity.  First and foremost, Martin is a case brought only against the United States and federal law enforcement officers of the FBI including the team leader Guerra.  Pursuant to the Federal Tort Claims Act, which waives federal immunity from suit under certain circumstances, a Plaintiff may bring certain state law claims against the United States.  The FTCA waives the federal government’s sovereign immunity for such acts if a private person would be liable under the law of the State where the act occurred.  This includes claims in Martin such as false imprisonment, assault and battery. 

The analysis is considerably more complicated in Martin.  The FTCA exempts from liability state tort claims that arise from a governmental officer’s performance of a duty or function that involved discretion.  The test for an act of “discretion” in this type of case is whether the alleged act involves an element of judgment or choice and whether the act represented the kind of conduct that the discretionary function provision was designed to shield from liability.  The United States contends that the actions taken by Guerra and the FBI were taken squarely within the discretionary function exception to the FTCA and therefore there is no liability.  The Plaintiffs contend that there can be no discretion to violently execute a warrant at the wrong house on the wrong street and inflict damages on property and innocent occupants.

However, the analysis of other issues of liability under the FTCA in Martin is also complex.  The Plaintiffs contend that not only was the alleged inadequate preparation for and the execution of the warrant not a discretionary function, an amendment to the FTCA in 1974 known as the “Law Enforcement Proviso,” waives federal immunity under the FTCA to cover precisely the actions complained of in Martin where officers searched the wrong house.  They point out that the legislative history of the FTCA amendment/Law Enforcement Proviso shows that it was specifically enacted to extend the waiver of sovereign immunity in these scenarios exemplified by a series of dangerous wrong house raids by the FBI in Indiana.  As you might expect, the United States asserts that its immunity under the discretionary act exclusion takes precedence over the Law Enforcement Proviso waiver and the officers’ actions must be analyzed as a discretionary act.

                                           EFFECT ON QUALIFIED IMMUNITY

The arguments outlined above and the statutory references are only applicable to the actions of the United States and federal officers.  Granting Martin’s Petition for Writ of Certiorari, the Supreme Court, as it does in all cases, issued and directed specific questions to the parties for briefing.  Both questions posed by the Supreme Court pertain solely to the federal liabilities issues discussed above. Moreover, there have been ten amici “friend of the court” briefs filed by third parties in this case.  Each of them only addresses the issue of the waiver of federal sovereign immunity under the FTCA.  Lastly, the Supreme Court places a great deal of weight when considering whether to grant a petition for writ of certiorari as to whether the issues being presented have created significant and conflicting differences in the various Circuit Court opinions in the country, which the issues regarding federal liability in Martin have done.  All of this means that the complex issues in Martin are strictly federal issues.  It is therefore highly unlikely that whatever the Court may decide in this case will have any effect on the doctrine of qualified immunity.    Finally, with regard to qualified immunity in the Martin case, it should be noted that Officer Guerra specifically did assert the defense in his individual capacity that he was entitled to qualified immunity from Plaintiffs’ claims.  Both the District Court and the Eleventh Circuit, following established precedent found Guerra acted reasonably, violated no constitutional rights of the Plaintiffs, and granted him qualified immunity. As above stated, the issue of qualified immunity is not a part of the certiorari petition.

It is therefore unlikely that the decision in the Martin case will affect the doctrine of qualified immunity for state and local law enforcement officers in any way.  It is expected that the Supreme Court will issue its opinion in Martin in the latter part of June.

                                                    RELATED RECENT CASES

When one reviews the Martin case and the issues of federal liability under the FTCA and the doctrine of qualified immunity, the Court seems to accept a certain level of liability protection for law enforcement officers as well-supported public policy. But the Martin Court and many others seem to struggle with those cases in which a blameless/faultless plaintiff has suffered significant harm because of actions or mistakes committed by law enforcement. It would seem clear that the Courts will continue to increasingly scrutinize the facts of each case and the application of those facts to the FTCA, the scope of law enforcement discretion, and in the qualified immunity analysis, whether there was clearly established law that the actions taken by the police officer were wrong.

In a recent case, April Pipkins v. City of Hoover, Alabama, David Alexander, et al., (citation omitted) David Alexander, a police officer with the City of Hoover, was on foot patrol with his partner in the Galleria Mall in Birmingham, Alabama.  During an active shooter situation, and within seconds after gunshots had been fired at the local mall, Officer Alexander saw Emantic Bradford moving quickly towards two men (who appeared to be shooting victims), with a gun in his hand and at his side.  Without issuing a verbal warning, Officer Alexander shot and killed Mr. Bradford when he was about ten feet away from the two men.  The entire incident took place in approximately five seconds.  It turns out that Mr. Bradford was legally authorized to carry his gun pursuant to a permit issued under Alabama law and was going towards the sound of the shots to provide humanitarian assistance as a Good Samaritan.

Ms. Pipkins, the mother of Mr. Bradford and representative of his estate, asserted Fourth Amendment claims under 42 U.S.C. 1983 and state law.  The District Court dismissed the state law claims and ruled that Officer Alexander’s use of deadly force was reasonable under the Fourth Amendment and that under the circumstances, providing a verbal warning was not feasible.  (For the purpose of this hearing, this article deals only with the Section 1983 claims against the officer.)  Applying the “objective reasonableness standard” to all of Officer Alexander’s use of force and the “totality of the circumstances,” as well as the “infeasibility” of giving a verbal warning, the Court properly analyzed and issued detailed findings with regard to each of the operative facts, which the Court had construed in accordance with law in favor of Ms. Pipkins.  The Court concluded that while the shooting was undoubtedly tragic, Officer Alexander did not violate the Fourth Amendment, and the shooting was not unconstitutional. 

This case presents a situation where the Court takes extra care in its opinion to respond to all the Plaintiff’s arguments in detail.  It gives an excellent example of a case in which the evidence was developed which did not show a violation of Ms. Pipkins’ and Mr. Bradford’s Fourth Amendment rights.  The carefully analyzed facts, all of which were required to be considered in a light most favorable to Ms. Pipkins, evaluated in detail showed that defendants were entitled to the dismissed of the federal claims. There was no violation of the Fourth Amendment rights and defendants were entitled to summary judgment of the federal claims.  The judge reviewed in detail the qualified immunity question of whether it was clearly established under the facts of this case that the failure to give a verbal warning would have been infeasible under the circumstances.  The opinion clearly shows the Court’s recognition of the terrible circumstances and tragedy to Mr. Bradford, an innocent, blameless hero who was trying to protect a person.  The detailed, carefully written opinion reflects the serious consideration given these issues and is an indication of increasing scrutiny which will be given these issues by the Courts.

There have been a number of recent cases where federal courts including the United States Supreme Court have expressed concern that an innocent citizen has suffered harm or damage to personal property from necessary police action.  In one such case, Baker v. City of McKinney, Texas, (citation omitted) unrelated to issues of immunity, on November 25, 2024, the Supreme Court denied a Petition for Writ of Certiorari where police in McKinney, Texas, had to use significant force to take control of and arrest an armed fugitive hiding in a private residence.  The fugitive had announced to police that he knew he would die and planned to shoot it out with the officers.  In order to resolve the standoff, the officers had to use teargas grenades, detonate explosions to break down garage and entry doors, and employ a tank-like vehicle to tear down the rear fence to gain access.  In the interim, the fugitive had taken his own life, but the police actions had caused extensive damages to the owner’s house and personal property of more than $50,000. 

As is usually the case, the homeowner’s insurance did not cover damage claims by the police and the owner, Baker, had sued the City under the 5^th Amendment of the U.S. Constitution “Takings Clause” for the destruction of her property.  The District Court held that it could be a compensable taking and a jury awarded Baker compensation.  On appeal, however, the Fifth Circuit Court of Appeals reversed the District Court decision holding that “the Takings Clause does not require compensation for damaged property when it was objectively necessary for officers to damage the property in an active emergency to prevent imminent harm to persons.”  The Fifth Circuit held that consistent with long-standing precedent, Baker could not recover damages under the circumstances presented.

The United States Supreme Court on November 25, 2024, denied Baker’s Petition for Writ of Certiorari, but in a statement filed by Justice Sotomayor, joined in by Justice Gorsuch, she acknowledged that the case raised important questions as to whether the Takings Clause required compensation when government damages private property pursuant to the police power where the owner was without fault or blame.  She went on to state her concerns with whether the Takings Clause permits the government to destroy private property without paying just compensation where the government has no choice but to take such action.

The Justice acknowledged the significant precedent with police power and taking actions such as “fire breaks” and destruction of property to prevent the spread of fires and that such does not give rise to compensation for the property owners.  She further references the destruction of property during wartime to prevent the enemy from using the property, but is clearly concerned that there should be situations where the property owner is entitled to compensation.  She refers to a possible distinction that could be drawn between where the destruction of the property is objectively necessary, or whether the destruction is inevitable.  There are opinions in other cases that suggest that police power actions that may damage property as a part of the greater benefit to the community should be an accepted cost to the local government just as vehicles, uniforms, weapons, training, and facilities are costs of providing police services.  Justice Sotomayor concludes that such compensation remains an “important and complex question” that would benefit from further “percolation” in the lower courts.

It remains to be seen whether such consideration in the Courts will take place. 

On June 12, 2025, after this article had been submitted for publication, the United States Supreme Court issued its Opinion in Martin v. United States.  In summary, the Court held that the Federal Tort Claims Act and the Law Enforcement Proviso discussed above, waived the federal government’s sovereign immunity and allows for suits brought against law enforcement for specified intentional torts such as assault, battery, false imprisonment, and false arrest. However, the Court further held that the proviso did not apply to the waiver for discretionary acts, and therefore remanded the case back to the Eleventh Circuit to determine if the discretionary act exception bars either the Plaintiffs’ negligent or intentional tort claims.  It should be noted that in a concurring Opinion, two Justices indicated that there was reason to think the discretionary exception would not apply to the Martin claims allowing them to proceed.  Thus, the Martin Plaintiffs must still obtain a favorable ruling in the Eleventh Circuit that the Defendants are not entitled to discretionary act immunity, and the Opinion seems to suggest that such a holding may still be subject to a further review by the High Court.