Attorneys throughout the country are looking for innovative ways to hold federal officials accountable. In a new guide, Stanford Law Professor and Rhode Center Co-Director Nora Freeman Engstrom and Rhode Center Executive Director Malka Herman offer a way forward, with information on an underutilized but potent tool: the Federal Tort Claims Act.

Here, the authors unpack the key points in their 75-page primer From State Tort to Federal Liability: An FTCA Field Guide for Minnesota Practitioners.

What motivated you to write this primer?

Nora: It is important for all lawyers to ask themselves what they can do to fortify government actors’ obedience to constitutional mandates.  I was very inspired by Yale’s Akhil Amar, who advocates for states to enact “converse-1983” statutes that would empower individuals to sue federal agents in state courts.  That’s surely one interesting possibility.

I come to all this from tort law, as I have spent my career thinking and writing about how tort causes of action promote deterrence and accountability.  That led me to wonder how the FTCA could be utilized to ensure federal officials face the consequences of their misconduct.

If the FTCA is such a powerful tool, why do you think it has not been utilized more against federal officials?

Nora: This primer is 75 pages for a reason.  The FTCA is a tangled and mind-bendingly complex statute, marked by byzantine procedural requirements, an exacting exhaustion requirement, and a particularized choice-of-law framework.  Then, on top of that, the statute is studded with substantive traps, including a nebulous discretionary-function exception, an obscure detained-good exception, and an intentional tort carve-out (that has, itself, been partly restored).  Worse, to understand the FTCA is to just grasp the half of it.  Beyond mastering the FTCA, you’ll only succeed if you understand the underlying state tort law.  As Georgetown Professor Steve Vladeck put it, the FTCA provides a “swiss cheese-like regime” for redress.  Our goal for this primer is to explain where the holes are and how best to avoid them.

Malka: In addition to its complexities, the FTCA also possesses a number of limitations.  An FTCA claim is tried in front of a judge, not a jury.  And the plaintiff cannot recover pre-judgment interest or punitive damages.  In addition, the defendant in an FTCA case is the United States government, not an individual officer.  This has the advantage of guaranteeing that the victim will be able to collect on a judgment but may have a more limited deterrent effect on individual officers.  Finally, a decision on the merits bars all other lawsuits by the victim from the same subject matter, including a Bivens claim.  These are things attorneys should weigh carefully before deciding to bring an FTCA claim.

As you just noted, the FTCA has several exceptions that can bar claims.  How do these exceptions—particularly the discretionary-function exception—work?  And how can they be overcome?

Malka: The discretionary-function exception is notorious.  One (admittedly outdated) study reports that the federal government has a 75 percent success rate when it seeks dismissal of FTCA suits on discretionary-function grounds.

Still, in many instances, it’s an obstacle that can be overcome.  Most importantly, the discretionary-function exception does not protect government conduct that violates a mandatory federal statute, regulation or official policy.  Nor (in most circuits) does it protect conduct that violates the Constitution.  It also cannot be used to shield ordinary carelessness, inattention, or other non-policy judgments.

So, for example, a district court in Illinois held that the failure to investigate a detainee’s citizenship claim violated a specific mandatory directive and therefore, the discretionary-function exception did not apply.  Similarly, if a person can demonstrate that an arrest lacked probable cause (and therefore violated the Fourth Amendment), the discretionary-function exception offers no shield.  Finally, even if certain decisions could be characterized as discretionary, courts have held that the failure to warn others of the danger was not protected because that failure was not susceptible to a policy analysis.  These are just a few of the many examples provided in the Guide.  The upshot is that lawyers ought to be attentive to the discretionary-function exception but not paralyzed by it.

Nora:  In addition, Justice Sotomayor’s recent concurrence in Martin v. United States, 605 U.S. 395 (2025), provides helpful language.  The backstory here is that in 1974, Congress amended the FTCA to include a group of intentional torts that had, previously, been excluded from the statute.  This 1974 amendment was a direct response to two events that took place the prior April when, in Illinois, agents had stormed the homes of two families, thinking (wrongly) that they housed drug dealers.  One couple was tied up by five plain-clothed officers, held at gunpoint, and told “You move, you’re dead.  I’m going to shoot you.”  Soon after, officers descended on a nearby home where a couple and their son and were held at gunpoint while officers rifled their belongings.  The episodes shocked the public and exposed a stark remedial gap: the families had no meaningful way to recover for the physical destruction of their homes, much less the terror and humiliation they endured.

Now, let’s return to Martin.  There, the Supreme Court resolved a circuit split, clarifying that intentional torts brought under the FTCA were still subject to the discretionary-function exception.  The Court remanded the case without deciding whether the exception actually applied.  Justice Sotomayor, after lamenting that “[i]t has been 34 years since this Court last weighed in on the discretionary-function exception,” wrote separately “to underscore that there is a reason to think the discretionary-function exception may not apply to these claims.”  She compared the facts in Martin—where FBI agents burst into a family home occupied by a couple and their seven-year-old son, detonated a flash-bang grenade, found the couple hiding in a closet, pointed a weapon at Ms. Martin and handcuffed her partner—to the infamous 1973 raids in Illinois.  Justice Sotomayor concluded by noting that the discretionary function exception should not foreclose “liability in the very cases Congress amended the FTCA to remedy” and that the lower court should remember this context when deciding whether the discretionary-function exception applied.

The infamous 1973 raids and the home invasion underlying Martin resemble much of the conduct going on today.  Highlighting this context can help cut through the exception’s noise and remind courts of its purpose.

This guide was written for practitioners, not fellow scholars.  That’s unusual.  When we think about elite academics, we tend to think about them writing for academic audiences.  Why do you think it’s important for academics to think more broadly?

Nora:  Of course, it’s crucial to engage in scholarly debates.  But it’s also important to make sure scholarly work is translated and disseminated to other audiences—to write op-eds, to appear on podcasts, to pen amicus briefs, and yes, to write practitioner guides.  Chief Justice Roberts has offered a pretty blistering critique of law professors, stating that there is “a great disconnect between the academy and the profession,” joking that law review articles are filled with articles like “the influence of Immanuel Kant on evidentiary approaches in eighteenth century Bulgaria,” and that academics writing these kinds of articles “shouldn’t expect that it would be of any particular help, or even interest, to members of the practicing bar or judges.”  And it’s biting because there’s a grain of truth in it.  We academics don’t always remember that we’re members of a broader professional community and we have an obligation to contribute to that community however we can.

Malka: We also see this work as part of a larger effort to think creatively about accountability.  Nearly everyone would agree that law enforcement officers need to go about their work in a way that respects the law and upholds the Constitution—and, I think, most people would also agree that some officers fall short of this imperative.  The question is what to do when that happens to ensure compliance and provide compensation to those wronged by the misconduct.

As Nora mentioned, Akhil Amar’s reverse § 1983 effort has (deservedly) gained traction, and we view the FTCA as another option for people to consider.  Even if courts deny these claims, there is still value in bringing them, in telling the world what happened, and reminding officers and the U.S. Government that the world has not turned a blind eye to what is going on.  It is very easy to feel overwhelmed when the rule of law is being attacked from every direction, but that is when it is most important for all of us to do what we can to reinforce the critical laws on the books.

Nora:  To return to the discussion above, in writing this Practitioners’ Guide, our thinking was: “The FTCA is powerful, but folks aren’t using it as much as they could, because it’s so complicated.  I am an educator, good at making difficult things less complicated.  Let’s do that here.”  We hope that our efforts demystify the FTCA and that, once it’s demystified, it’s viewed—not as some intimidating black box—but as a useful tool in lawyers’ toolboxes.  It’s certainly not the only tool, and it’s not right for every situation.  But it’s a tool that shouldn’t be overlooked.