Government Discretion Advised (Even If It’s Unconstitutional): How the Eleventh Circuit Has Expanded the United States’s Immunity from Tort Suits

Mackie Shivers, a sixty-four-year-old man, was stabbed in the eye by his mentally-ill cellmate with a pair of scissors. Although the attack left Shivers permanently blind, he received no legal remedy to compensate him for his injuries. This result is due, at least in part, to the United States Court of Appeals for the Eleventh Circuit’s decision to interpret the discretionary function exception to the Federal Torts Claim Act (FTCA) in a broader way than virtually all of its sister circuits. The holding by the Eleventh Circuit in Shivers v. United States bars FTCA claims under the exception even for unconstitutional conduct by government employees so long as the conduct was discretionary. Congress passed the FTCA in order to hold the government liable for the misconduct of government employees acting within the scope of their employment. The discretionary function exception to the FTCA was intended to prevent judicial second-guessing of legislative decisions that have their roots in public policy. By holding that this exception applies to even unconstitutional conduct, the Eleventh Circuit has left many future tort victims without a proper redress for injuries caused by the misfeasance of government employees and has implied that there is some kind of policy rationale for such employees to be given discretion to violate the Constitution. Because the Supreme Court of the United States has yet to rule on whether unconstitutional conduct falls under the discretionary function exception, the circuit courts have been left to answer the question on their own. Virtually every circuit that has broached the issue presented in Shivers has held that unconstitutional conduct is not protected by the exception. The Eleventh Circuit has now joined the United States Court of Appeals for the Seventh Circuit in holding the opposite