1976] INTENTIONAL TORTS AMENDMENT under section 1983 . . . in which state agents are held liable for 515 This statement indicated that, like the Justice Department, the Senate committees were attacking the problem almost exclusively from the perspective of Bivens and section 1983, without realizing that the Bivens analysis had itself been necessary only because no statute had been passed to give the courts power to award damages to an injured individual for government misdeeds. On one point, however, the Senate committees were clearly insistent on distinguishing their recommendation from prior law. The federal government was not to be allowed to escape liability under the new statute by retreating behind various "defenses" that had been created under Bivens84 or section 1983.85 Thus the Senate memorandum declared: It is not the intention of this amendment to allow any other defenses Thus, despite the constant reference in legislative documents to Bivens and section 1983, the proposed federal liability was meant to differ in this very crucial aspect from its historical analogues. In the main, both the legislative committees and the Justice Department failed fully to grasp that by drafting a comprehensive bill to define federal intentional tort liability they could have obviated any necessity to 83. Senate Memorandum, supra note 82, at 3. The temptation to equate Bivens recoveries with section 1983 appears irresistible and the courts are beginning to do so with increasing frequency. See, e.g., Paton v. La Prade, 524 F.2d 862 (3rd Cir. 1975). 84. Under Bivens theory, as expounded by the Second Circuit on remand from the Supreme Court, a law enforcement officer could defend against liability by asserting the good faith of his action and the reasonable belief in the validity and necessity of the arrest and search. Bivens v. Six Unknown Named Agents, 456 F.2d 1339 (2d Cir. 1972). 85. Section 1983 has been interpreted to contain a broad defense of good faith. See note 62 and accompanying text supra. 86. Senate Memorandum, supra note 82, at 5. 516 NORTH CAROLINA LAW REVIEW [Vol. 54 rely on analogies to Bivens' "constitutional tort" theory or on section 1983 case law that had developed largely as a result of statutory inadequacies. Furthermore, the narrow parameters of the legislative activity, restricted to an amendment to section 2680(h), meant that the drafters did not direct attention to the peculiar idiosyncrasies of the Federal Tort Claims Act.87 Therefore, the drafters ignored certain basic problems in using the FTCA as a vehicle for their intended purpose. Instead, all attention seemed directed at achieving a compromise between administrative and legislative positions based on a preoccupation with the Bivens and section 1983 background. (4) Passage The Justice Department proposal was submitted to the Vice President, as President of the Senate, by the Attorney General on September 17, 1973.88 The bill was subsequently introduced as Senate Bill No. 2558 by Senator Roman Hruska on October 10, 1973, and referred to the Committee on the Judiciary.89 Senator Ervin decided to exert legislative pressure for his own version by appending it to House of Representatives Bill No. 8245, a bill pending in the Senate Committee on Government Operations.90 Since that bill made significant changes in the organization of the federal drug control apparatus, it had some ostensible connection with the changes Ervin sought in the FTCA. However, the more pertinent reason for employing H.R. 8245 was Ervin's knowledge that the Administration and other interested parties91 wanted the bill passed quickly. In subsequent negotiations, therefore, the Administration agreed to drop its restriction of recovery to 87. See text following note 110 infra. 88. Letter from Attorney General Elliot Richardson to Vice President Spiro Agnew, Sept. 17, 1973, together with the revised Justice Department Draft, entitled "A Bill to amend title 28 of the United States Code, to provide for an exclusive remedy against the United States in suits based upon acts or omission [sic] of United States employees and for other purposes," copies on file in the University of North Carolina Law Library. 89. 119 CONG. REC. 33494 (1973). 90. The original intent of H.R. 8245 is detailed in H.R. REP. No. 303, 93d Cong., 1st Sess. 3-6 (1973). The purpose of H.R. 8245 was twofold: (1) to establish the Drug Enforcement Agency as a successor to BNDD and DALE; (2) to repeal a transfer of 900 agents from the Immigration and Naturalization Service of the Justice Department to the Customs Bureau in the Treasury Department. Id. at 1. 91. On November 6, 1973, Ervin received a letter from Congressman Chet Holifield, Chairman of the House Committee on Government Operations, requesting quick action on H.R. 8245 because of Immigration and Naturalization Service pressure. Holifield alluded to the "non-germane" amendments which Ervin's committee was considering and asked that they be dealt with separately. Letter from Chet Holifield to Honorable Sam J. Ervin, Chairman, Committee on Government Operations, Nov. 1, 1973, copy on file in the University of North Carolina Law Library. 1976] INTENTIONAL TORTS AMENDMENT 517 "actual damages" plus $5,000 in "general damages." In exchange, the legislative committees gave up a litigant's right to sue both the federal government and the individual malefactor.92 Also, inexplicable except as a result of preoccupation with Collinsville, the Senate committees permitted liability to be restricted to "acts or omissions of investigative or law enforcement officers." Other federal employees and officers were excluded from coverage, though the initial Justice Department position had offered the possibility of suit against any federal employee. On November 28, the Administration, in a letter from the Executive Office of the President, agreed "not to object" to the addition of the Senate Committee's amendment to H.R. 8245.93 The next day, the bill was reported out to the full Senate, voted upon, and returned to the House on December 4, 1973, as amended. Although some further delay ensued, the bill as amended finally passed in the House on March 5, 1974-though not without strenuous dissent95-and became law on March 16, 1974.96 A. Basic Features III. THE AMENDMENT 94 The text of the new amendment is quite brief. It supplements 28 U.S.C. § 2680(h) as follows: The provisions of this chapter and 1346(b) of this title shall not apply to-(h) Any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights: Provided, That, with regard to acts or omissions of investigative or law enforcement officers of the United States Government, the provision of this chapter and section 1346 (b) of this title shall apply to any claim arising, on or after the enactment of this proviso, out of assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution. For the purpose of this subsection, 'investigative or law enforcement 92. Letter from Frederic V. Malek, Deputy Director, Office of Management and Budget, to Sam Ervin, Nov. 28, 1973, copy on file in the University of North Carolina Law Library. 93. S. REP. No. 588, 93d Cong., 1st Sess. 4 (1973). 94. 119 CONG. REC. 38559, 39309 (1973). 95. Representative Wiggins was particularly concerned about lack of House debate on the amendment. He opposed the amendment unless its passage was connected to careful congressional investigation of the fourth amendment's exclusionary rule. See 120 CONG. REC. H 1398-1402 (daily ed. Mar. 5, 1974). See text accompanying notes 198-205 infra. 96. 120 CONG. REC. H 2383 (daily ed. Apr. 2, 1974). 518 NORTH CAROLINA LAW REVIEW [Vol. 54 officer' means any officer of the United States who is empowered Since section 2680(h) establishes exclusions from FTCA coverage, the amendment, by excepting suits against law enforcement officers from the operation of the section, permits such suits. Cursory reading of section 2680(h) probably accounts for the frequent statement that the FTCA excludes "intentional" torts from coverage. Actually, the list beginning "assault, battery omits mention of a number of intentional torts, most notably trespass and invasion of privacy, that have never been excluded from FTCA coverage. Successful suits have been brought against the federal government for trespass,98 and it is likely that the willingness of DALE officials to settle with the Giglottos and Askews reflected recognition that trespass claims might well have been successful. The amendment's failure to refer to trespass and invasion of privacy therefore does not reflect a legislative disinclination to permit suits on such causes of action; rather, such suits were possible prior to the amendment. In fact, the report of the Committee on Government Operations of the Senate explicitly states: .99 The Committee realizes that under the Federal Tort Claims Act, Government tort liability for intentional conduct is unclear. For example certain intentional torts such as trespass and invasion of privacy are not always excluded from Federal Tort Claims Act coverage. Obviously, it is the intent of the Committee that these borderline cases under the present law, such as trespass and invasion of privacy, would be viewed as clearly within the scope of the Federal Tort Claims Act . 100 It is clear, however, that the amendment does not permit suit on all intentional torts previously excluded from FTCA coverage. Libel, 97. 28 U.S.C.A. § 2680(h) (Supp. 1976) (emphasis added), amending 28 U.S.C. § 2680 (h) (1970). 98. See, e.g., Hatahley v. United States, 351 U.S. 173 (1956); Black v. United States, 389 F. Supp. 529 (D.D.C. 1975); Ira S. Bushey & Sons, Inc. v. United States, 276 F. Supp. 518 (E.D.N.Y. 1967), aff'd, 398 F.2d 167 (2d Cir. 1968). See generally Annot., 23 A.L.R.2d 574 (1952). In addition, federal courts have permitted recovery to plaintiffs assaulted or battered by third parties when the government's negligence has been alleged to have permitted the assaults. Gibson v. United States, 457 F.2d 1391 (3d Cir. 1972); Rogers v. United States, 397 F.2d 12, 15 (4th Cir. 1968); Muniz v. United States, 305 F.2d 285 (2d Cir. 1962) en banc, aff'd, 374 U.S. 150 (1963). Assaults and batteries arising out of negligence by employees of the Public Health Service in the performance of medical, surgical or dental procedures can properly be the subjects of claims under 42 U.S.C. § 233(e) (1970). 99. See notes 28-29 supra. 100. S. REP. No. 588, 93d Cong., 1st Sess. 3 (1973).* 1976] INTENTIONAL TORTS AMENDMENT 519 slander, misrepresentation, deceit and interference with contractual rights were omitted from the language of the amendment and continue to be "protected" governmental activities.101 The amendment carefully limits its effect to "investigative or law enforcement officers of the United States government"- —a term that is defined to mean "any officer of the United States who is empowered by law to execute searches, to seize evidence or to make arrests for violations of Federal law." Well-established constitutional,102 statutory103 and case law104 distinctions between federal "officers" and federal "employees" seem invoked by the amendment's definition, although that was apparently not the intent of the drafters. Nevertheless, the amendment seems likely to be interpreted to preclude suit against either federal employees 105 or federal officers without the statutory power to search, seize evidence, or make arrests. This patchwork coverage may therefore prove an occasional refuge against liability, necessitating a check of federal statutes to ascertain whether those who violated a citizen's rights fall within the limitations of this clause. While the definition should reach those federal officials who are most likely to commit intentional torts, the restrictions may prove unfortunate in certain circumstances. For example, if those at Collinsville who committed tortious acts were federal "employees,"106 liability under the FTCA would in all likelihood be precluded. On the other hand, whole areas of potential liability, not contemplated by those who drafted with Collinsville in mind, are created by the amendment. The warden of a federal penitentiary is appointed by the 101. See, e.g., United States v. Neustadt, 366 U.S. 696 (1961) (misrepresentation); Dupree v. United States, 264 F.2d 140 (3d Cir.), cert. denied, 361 U.S. 823 (1959) (interference with contract); Di Silvestro v. United States, 181 F. Supp. 860 (E.D.N.Y.), cert. denied, 364 U.S. 825 (1960) (libel). 102. "[The President] shall nominate and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States. . . ." U.S. CONST. art. II, § 2. 103. E.g., 5 U.S.C. § 2104 (1970), which defines officers to include only those required by law to be appointed in the civil service by the President, a court of the United States, the head of an executive agency, or the secretary of a military department. 104. Burnap v. United States, 252 U.S. 512 (1920); United States v. Smith, 124 U.S. 525 (1888); United States v. Mouat, 124 U.S. 303 (1888); United States v. Hartwell, 73 U.S. (6 Wall.) 385 (1867); Hoeppel v. United States, 85 F.2d 237 (D.C. Cir.), cert. denied, 299 U.S. 557 (1936); Hobson v. Hansen, 265 F. Supp. 902 (D.D.C. 1967). 105. On the question of who are "employees" under the FTCA see Annot., 57 A.L.R.2d 1448 (1958). 106. Apparently certain BNDD employees had, at the time of the Collinsville raids, statutory authority to execute searches and make arrests. 21 U.S.C. § 878 (1970). |