107 Iowa L. Rev. 1857 (2022)

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Abstract

The United States is generally immune from claims against it based on intentionally tortious conduct of its agents due to the doctrine of sovereign immunity. One provision, the “Law Enforcement Proviso,” provides a waiver of sovereign immunity for claims arising from six intentional torts so long as they are committed by an “investigative or law enforcement officer.” This Note describes and analyzes challenges plaintiffs face in bringing a claim pursuant to the Proviso. Two of these challenges inhere in the statutory text, while the third follows from competing interpretations of controlling case law. Although a minority of circuit courts are expanding the scope of this provision, this trend is limited.

This Note thus analyzes how congressional expansion of the scope of the Law Enforcement Proviso could better align the statute with primary principles and purposes of tort justice. It argues that the theory of enterprise causation and concept of foreseeability justify expansion of the scope of the Law Enforcement Proviso. In the interest of corrective justice and good social policy, this Note forwards a novel, narrowly tailored proposal to amend the Law Enforcement Proviso, situating that proposal among a spectrum of alternative solutions. Finally, this Note applies the proposal to five test cases to illustrate its potential impact.