Judge Gorsuch has approached Justice Department lawyers about what they can expect from FBI agents.
The Supreme Court heard oral debate on April 29th about whether the FBI should be protected from civil lawsuits over the 2017 attack on a Georgia couple’s home.
In the early hours of October 18, 2017, FBI special agent Lawrence Guerra mistakenly believed he had arrived at the gang member’s home to carry out a search warrant. Instead, he smashed the door of another house. It is the door for Hilliard Toy Critt and his partner Katrina Martin.
Guerra was conducting a pre-dawn drive-by during preparations, but a court filing says GPS pointed them to another home. According to a filing by the Department of Justice, the address of Clit and Martin’s home is not in the home itself, but instead in the mailbox and “unseen from the street.”
During the oral debate on April 29, the Supreme Court weighed whether Martin and Kritt could sue the government. The law known as the Federal Tort Claims Act generally allows individuals to sue the government for certain conduct, such as assault, false arrests, or abuse of the process. However, it includes exceptions to legal claims that include government discretion in performing certain obligations or functions.
This was a warning from the U.S. Court of Appeals in the 11th Circuit, cited when they refused to allow the couple to proceed. However, Martin and Clitt pointed to provisions added to the law in 1974 after the false attack in Collinsville, Illinois. This provision permitted a plaintiff’s legal argument under “US government investigation or acts or omissions of law enforcement officers.”
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The judge’s questioning on April 29 showed that they would send the case back to the court of appeals with a narrow victory for the couple with more consideration by another judge.
At one point, Judge Neil Gorsuch seemed incredible in some of the comments by Attorney General Frederick Lew’s assistant, suggesting that the FBI agent’s mistakes were protected as an attempt to exercise discretion. Liu claimed he retained some legal protection because he lacked a specific policy instructing FBI agents not to search for homes other than suspects.
“Don’t destroy the wrong house. Stay on the house…don’t hurt that resident,” Gorsuch asked.
Liu said that while US policy is to implement warrants in the right home “of course,” “the policy at that high level of generality does not stipulate how certain actions can be seized or prescribed or how officers can identify the right home.” He went on to suggest that officers may need to consider public safety and efficiency when deciding whether to take “extra precautions” to ensure they are in the right home.
Gorsuch intervened, saying, “I might look at the address of the house before I knock the door down.”
“Yes,” Li replied, adding, “Such decisions are met with policy trade-offs.”
Golsch interrupted and asked, “Really?”
After Liu said that when he checked the house number on the edge of the driveway, the agent could be exposed to a potential fire line, Gorsuch asked, “Try making sure you’re on the right street… Are you checking the street signs? Is that too much?”
Liu told Judge Sonia Sotomayor that the addition in 1974 removed one protective layer of officers, but allowed another layer to stay in place.
“That’s so ridiculous,” Sotomayor said. “Council is seeing the attack on Collinsville and is offering relief to those who were accidentally attacked. You’re now saying they really don’t want to protect them in full.”
