The Federal Tort Claims Act

The Federal Tort Claims Act is a legislation that has been passed in the United States which allows suits for wrongful acts to be brought against itself. Cohen and Burrows (2007) state that it has exceptions which render the United States to be responsible for a careless or wrongful act or exclusion of any federal worker operating within the scope of his service in line with the law of  the state where that particular act occurred. The aforementioned exceptions are: the Feres doctrine, the Discretionary function exception and the Intentional tort exception.

Cecchine (2004), states that the Federal Tort Claims Act (FTCA) of 1946 ignores the federal government’s independent immunity subject to assured exceptions from tort responsibility for acts or omissions of its workers. It offers special jurisdiction to federal courts to hear FTCA claims but with the provision of bench trials not jury trials. This paper therefore aims to discuss the applications of the Federal Tort Claims Act in Local Justice and Security Agencies.

Application to local justice

Neumann (2002) finds that section 1983 provides a financial damages remedy which caters for harm caused through denial of federal constitutional rights by state or local government officials or those operating in concert with them. She emphasizes that the plaintiff has an obligation to prove that both racial motivation and “discriminatory effect” of law enforcement practices exist in federal lawsuits under this section.

McCormick, Papadakis and Asselta (2003) observe that the good thing about the FTCA is that a plaintiff can sue the government when an employee of the government acts carelessly and causes harm. However, it does not authorize the jury to decide the fate of a claim and therefore thorough understanding of the law itself and the verdicts under it are necessary. Therefore, the FTCA does not allow the fate of a claim to be determined by selecting an effective jury nor an impressive closing argument in court.

 Sisk and Lester (2006) observe that if a wrong act such as crashing into one’s home by federal employees occurs, the remedy for the situation would involve the FTCA. Therefore, the employee has no grounds for hesitating before going forward with an administrative claim. If it is denied then the next step is to present a court action also under the FTCA.

Ferdico, Fradella and Totten (2008) investigate that an illegal search and seizure of property is considered a crime therefore would mean the officer conducting that act could be criminally indicted. However, such indictments for officers who perform overzealous acts of law enforcement are rare in state courts due to strict conditions that call for presentation of legal proof and extensive legal defenses.

Application to Security Agencies

Hendrix (1998) describes the FTCA as a common law of torts and agency which identifies the difference between independent contractors, whose actions are not accredited to the government and an agent whose actions are attributed to the government.

Ferdico et al (2008) find that federal officers and others who act under the color of federal law are not subject to section 1983. However, they are legally responsible for violations of the constitution in other types of civil actions. These actions are referred to as “Bivens” actions. It is discovered that a plaintiff who has filed a suit against federal narcotics agents in this type of action is entitled to recover monetary damages for injuries that were suffered due to the violation of the fourth amendment which guards against unreasonable searches and seizures.

Therefore, individuals who have suffered as a result of the violation of the fourth amendment or the constitution at the hands of federal law enforcement officers may sue the United States government in the FTCA action under 28 U.S.C. section 1346 (b) and under 28 U.S.C. section 2680 (h). This possibility will aid the plaintiff particularly since the federal government has immense financial resources.

Conclusion

The advantage that is presented by the Federal Tort Claims Act enables citizens to sue the government as a result of constitutional violations by federal officers who are responsible for law enforcement. These violations may be in form of unreasonable searches and seizures of a person’s home. Therefore, the person whose rights have been violated fights for his rights by taking this action. This is stated to be an effective way to sue the United States government since it endowed with immense financial resources.

References

Cecchine, G. (2004). Triage for civil support: using military medical assets to respond to terrorist attacks. Santa Monica: Rand Corporation.

Cohen, H. & Burrows, V.K. (2007). CRS Report for Congress: Federal Tort Claims Act. Washington D.C: Congressional Research Service.

Ferdico, J.N., Fradella, H.F. & Totten, C.D. (2008). Criminal Procedure for the Criminal Justice Professional. 10th ed. Belmont: Cengage Learning.

Hendrix, R.W. (1998). A Refresher on the Federal Tort Claims Act: How to Sue the United States. Finch McCranie, LLP. Retrieved April 30, 2010 from http://www.finchmccranie.com/refresher.htm

McCormick, B.W.  Papadakis, M. P. & Asselta, J.J. (2003). Aircraft accident reconstruction and litigation. 3rd ed. Arizona: Lawyers & Judges Publishing Company.

Neumann, K.A. (2002) Criminal justice and law enforcement issues. New York: Nova Publishers.

 

Sarah from Law Aspect

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