1976] INTENTIONAL TORTS AMENDMENT 525 Most subsequent cases have followed Rayonier's lead in holding the government liable for activities in which negligence has been clear.137 Against this background, an expansive reading of the "private person" doctrine in the intentional tort context seems justified. Furthermore, the insistence by the Senate drafters that no special governmental defenses preclude federal liability138 should mean, at the least, that the government could claim no defenses-apart from those in the FTCA itself—that are unavailable to a private defendant. Thus, for example, an erroneous forced entry by law enforcement officers into an apartment should be tortious under the FTCA even if the search met constitutional requirements of probable cause and "reasonableness." Under well-known standards of tort law, a trespass can be committed even if the offender does not intend the violation but inadvertently wanders onto another's land. 139 Of course such a remedy would clearly move beyond redress merely for "constitutional torts." Although certain language in the legislative report seems to stop short of such an expanded concept of liability,140 the sense of Congress' action in response to Collinsville tends to reinforce this broader interpretation. (3) The Due Care Defense and the "Discretionary The FTCA is not simply a signpost directing a litigant toward state law. Two very important federal defenses drafted into section 2680(a) offer serious impediments to a successful claim against the government. The section reads: The provisions of this chapter and section 1346(b) of this title (a) Any claim based upon an act or omission of an employee of would be immune from suit under state law for an alleged act or omission, an FTCA plaintiff can nevertheless sue the United Sates if a private individual would be liable under the law of that state. Big Head v. United States, 166 F. Supp. 510 (D. Mont. 1958). 137. United States v. Muniz, 374 U.S. 150 (1963); Downs v. United States, 522 F.2d 990 (6th Cir. 1975). 138. See text accompanying notes 84-86 supra. 139. W. PROSSER, supra note 134, § 13, at 74. 140. See text accompanying note 166 infra. 526 NORTH CAROLINA LAW REVIEW [Vol. 54 Government, whether or not the discretion involved be As Jayson has observed: It is evident from the legislative history and the courts' interpreta- Because negligent torts, almost by definition, do not occur in "the exercise of due care," there have been few cases interpreting that clause. The clause could experience much greater litigation in the intentional torts context, however, since it is reminiscent of the good faith immunity defense that has been developed under section 1983.143 If DALE regulations covering search and seizure methods, for example, were to be drafted in such a fashion that they mandated or even permitted tortious conduct, the government might argue that a law enforcement officer's "due care" execution of such regulations in "good faith" should insulate the government from suit under the FTCA. Fortunately, the slim precedent in this area appears to refute such a broad reading of the clause. In Hatahley v. United States,144 eight Navajo families who lived on public lands in San Juan County, Utah, sued the federal government to recover damages for the destruction of their horses, which had been permitted to roam freely. Apparently federal agents, who wished the Indians to leave their homesites, had used Utah's "abandoned horse statute" to round up and destroy the animals.145 After finding that the FTCA was applicable and that the agents were acting within the scope of their employment,146 the United States Supreme Court turned to the question of the section 2680(a) exclusions: 141. 28 U.S.C. § 2680(a) (1970). A number of cases have interpreted the discretionary function exception not merely as a defense but as a jurisdictional barrier. E.g., Sickman v. United States, 184 F.2d 616 (7th Cir. 1950); Coates v. United States, 181 F.2d 816 (8th Cir. 1950); Sisley v. United States, 202 F. Supp. 273 (D. Alas. 1962). 142. Jayson, Applications of the Discretionary Function Exception, 24 FED. B.J. 153, 154 (1964). 143. See note 62 supra. 144. 351 U.S. 173 (1956). 145. Id. at 175-76. 146. Id. at 180. 1976] INTENTIONAL TORTS AMENDMENT The first portion of section (a) cannot apply here, since the govern- 527 This language would seem to indicate that actions taken by law enforcement officers in the execution of otherwise valid regulations that happen to infringe private rights have not been taken "in due care." Indeed, the question Hatahley invites is for what does an officer exercise due care if not for the rights of those whom his actions are affecting? More expansively interpreted, however, Hatahley could form the basis for an attack against the clause's apparent exemption for any actions taken pursuant to invalid regulations or statutes-regulations that infringe a citizen's rights on their face, rather than merely as applied. The Court's reading of "due care" to imply at least some minimal concern for the rights of others might be characterized as an insistence that such rights cannot be ignored with impunity, either by the party taking the action or by the party drafting guidelines.148 It would be unconscionable for a court to permit recovery against an FBI agent for tortious acts committed on his own in a citizen's apartment, while denying recovery if such improper conduct is outlined in a government manual. In short, recovery of damages, at least for constitutional violations, should not be precluded by the language of section 2680(a). Any legitimate legislative concern that litigants not be permitted to use the FTCA to challenge the legality of statutes can be preserved by reading section 2680(a) merely to restrict a litigant's ability to obtain declaratory or injuctive relief under the statute.149 Recovery of damages by an injured citizen, on the other hand, should be permitted, since damages may place an objective measure on the constitutional injuries resulting from such regulations and statutes. Unlike the "due care" clause, the "discretionary function" clause has been extensively litigated,150 and has probably spawned more litera 147. Id. at 181. 148. An example of a government program with ominous overtones for constitutional fights is the FBI's COINTELPRO program. Since the late 1930's, the FBI has collected and disseminated personal information about the private lives of thousands of law-abiding American citizens in an effort to discredit or "neutralize" alleged "subversives" or "extremists." Letter from Senator Walter Mondale to Paul Verkuil, Jan. 6, 1976, enclosure 1 [hereinafter cited as Mondale Letter]. 149. See text accompanying notes 190-91 infra. 150. See Hatahley v. United States, 351 U.S. 173 (1956); United States v. Union Trust Co., 350 U.S. 907 (1955) (per curiam); Indian Towing Co. v. United States, 350 U.S. 61 (1955); Dalehite v. United States, 346 U.S. 15 (1953); Feres v. United States, 340 U.S. 135 (1950); Griffin v. United States, 500 F.2d 1059 (3d Cir. 1974); Pigott 528 NORTH CAROLINA LAW REVIEW [Vol. 54 ture than any other single provision in the FTCA.151 The discretionary function exception can best be seen as a legislative effort to protect necessary (but necessarily imperfect) governmental decisions from unreasonable attack. While Congress was content to accept financial liability for a mailman's negligent inattention to a traffic light, it did not intend to recompense a rural resident for a decision to cease daily R.F.D. delivery. It is the latter kind of decision that the exception attempts to protect. One of the first and most significant interpretations of the clause by the Supreme Court came in Dalehite v. United States. 152 In that case, over three hundred plaintiffs sought damages for a devastating explosion that occurred in Texas City, Texas in 1947. After World War II, the United States realized there was an export market for certain potentially explosive chemicals manufactured during the war that could be used as fertilizers. The United States government contracted with private firms to operate certain former armaments plants under government supervision. Fertilizer destined for France was being loaded, under government supervision, by stevedores onto French ships in the Texas City harbor. 153 A small fire that developed in the hold of one ship was not put out quickly, and the ensuing explosions levelled a sizable portion of the town. "Since no individual acts of negligence [were] shown, the [suit] necessarily predicated government liability on the participation of the United States in the manufacture and the transportion of [fertilizer]."154 ... The Supreme Court analyzed section 2680 in terms of "planning" versus "operational" decisions: The "discretion" protected by the section. . . is the discretion of the executive or the administrator to act according to one's judgment of the best course, a concept of substantial historical ancestry in American law.1 155 v. United States, 451 F.2d 574 (5th Cir. 1971); Hendry v. United States, 418 F.2d 774 (2d Cir. 1969). 151. See, e.g., James, The Federal Tort Claims Act and the "Discretionary Function" Exception: The Sluggish Retreat of an Ancient Immunity, 10 U. FLA. L. REV. 184 (1957); Peck, The Federal Tort Claims Act: A Proposed Construction of the Discretionary Function Exception, 31 WASH. L. REV. 207 (1956); Reynolds, Discretionary Function Exception of the Federal Tort Claims Act, 57 GEO. L.J. 81 (1968); Note, 41 WASH. L. REV. 340 (1966). See generally Annot., 99 A.L.R.2d 1016 (1965); Annot., 19 A.L.R.2d 845 (1951). 152. 346 U.S. 15 (1953). 153. Id. at 17-24. 154. Id. at 23. 155. Id. at 34 (footnote omitted). 1976] INTENTIONAL TORTS AMENDMENT It is enough to hold, as we do, that the "discretionary function or duty" that cannot form a basis for suit under the Tort Claims Act includes more than the initiation of programs and activities. It also includes determinations made by executives or administrators in establishing plans, specifications or schedules of operations. Where there is room for policy judgment and decision there is discretion. It necessarily follows that acts of subordinates in carrying out the operations of government in accordance with official directions cannot be actionable.156 In short, the alleged "negligence" does not subject the Government to liability. The decisions held culpable were all responsibly made at a planning rather than operational level. . . .157 529 The recognition that certain governmental decisions must be protected against litigation was not new; it had earlier met with general judicial recognition.158 Almost any official act is taken pursuant to some sort of plan, however, and government lawyers subsequently used Dalehite to urge courts to reject liability for many acts that clearly involved negli gent execution of a plan or idea. Although some courts drew a distinction "between acts or omissions arising from the exercise or performance of a discretionary function and those occurring within the scope or area of the discretionary function but which themselves do not involve any proper element of discretion,"159 other courts took Dalehite as a license to strike down arguably valid claims.160 More reflective courts came to realize that a “planning-operational" distinction, based exclusively on the level of the public official involved, was not conclusive of the issue. One influential discussion of 156. Id. at 35-36 (footnote omitted). 157. Id. at 42. 158. E.g., Sickman v. United States, 184 F.2d 616 (7th Cir. 1950), cert. denied, 341 U.S. 939 (1951); Coates v. United States, 181 F.2d 816 (8th Cir. 1950). 159. Bulloch v. United States, 133 F. Supp. 885, 888 (D. Utah 1955). See also Somerset Seafood Co. v. United States, 193 F.2d 631, 635 (4th Cir. 1951). 160. For example, in Fahey v. United States, 153 F. Supp. 878 (S.D.N.Y. 1957), executors sued the government on behalf of a deceased woman who had been shot by a demented military veteran. The United States was alleged to have been negligent in permitting the veteran to remain at large, given psychiatric difficulties known to public medical officials. Id. at 886. In determining liability, the court reasoned: "In this case the acts of the psychiatrists involved come within the scope of the term 'discretionary function.' They were retained to make professional diagnoses and if any error was committed it was an error in the exercise of their authorized discretion resulting from an improper diagnosis. Such conduct is clearly within the scope of the exception and clearly not actionable." Id. at 886. See also Williams v. United States, 115 F. Supp. 386 (N.D. Fla. 1953), aff'd, 218 F.2d 473 (5th Cir. 1955); Thomas v. United States, 81 F. Supp. 881 (W.D. Mo. 1949). |