'That Is So Ridiculous': Sotomayor Pushes Back On Attorney's Argument During Case On FBI Raids

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On Tuesday, the Supreme Court heard oral arguments in Martin v. United States.

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00:00I guess, Mr. Liu, the question is, how does that really differ from Colesville?

00:03I mean, the problem that I think is sort of what is happening in your analysis

00:08is that you say that the Colesville conduct does not fall within the discretionary function exception,

00:16which seems to me to be a concession that even if we agree with you

00:22that these aren't in two separate categories, law enforcement and discretionary function,

00:27we still have to figure out how broad the discretionary function exception is,

00:33which is the question you say we're not allowed to answer.

00:35The conduct in Colesville flunks the first step of the Gobbert two-part test.

00:40Is that the discretionary function test?

00:42Yes.

00:43All right.

00:43Well, so then we are having to assess the scope of the discretionary function in this context.

00:50I don't think so.

00:51I don't see how you can say we have separated that out of the question presented,

00:54we can't look at it, and you're still answering these questions in this way.

00:58No, because I think this case comes to the court on the assumption,

01:04as the courts below found at 17 to 18a and at 58a,

01:09that the conduct here did satisfy Gobbert's two-part test.

01:12Now, the only out that petitioners have left then is to say that the proviso nevertheless removes those claims

01:19from the scope of A.

01:21That's what I took to be the threshold statutory question that this court granted cert to decide.

01:26If I may just address one point that my friend...

01:29I'm sorry, counsel.

01:30You're doing exactly what the other side is doing.

01:33You are begging the question, which is how far does this discretionary exception go?

01:41The other side wants an absolute rule that all intentional torts are not covered.

01:47You want the opposite, which is if there's any discretion in the activity,

01:55then no negligences or intentional actions are covered.

01:59No, I don't...

02:00The two of you are going into separate corners.

02:02I'm not asking for an absolute rule.

02:04I'm asking for the court to just stick with it to test in Gobbert.

02:08Yes, because you've got a great decision below, but is that fair?

02:12Sometimes that test will result in the United States being exposed to liability.

02:18Sometimes it won't.

02:20It's not an absolute test.

02:21If I may just address my friend's suggestion that the proviso did nothing when Congress enacted it,

02:27we don't view that to be the case.

02:29Before the proviso was enacted, officers like Guerra had two layers of protection from liability.

02:37They had the discretionary function exception, and then they had an extra special layer of protection provided by subsection H,

02:45which gave the United States blanket immunity for any claim based on a particular type of tort.

02:51What the proviso did was remove that special layer of protection, but it left in place...

02:57That is so ridiculous.

02:59Congress is looking at the Collinsville raid and providing a remedy to people who have been wrongfully raided,

03:09and you're now saying, no, they really didn't want to protect them fully.

03:17They were just going to take them out of that exception, but leave in the discretionary exception.

03:25I gave you discretion in Collinsville.

03:27The officers are permitted to break into a home if they think an emergency existed.

03:33That's why those officers did that.

03:36They may have been wrong about the emergency existing.

03:40They may have been wrong about the warrant law.

03:43But under your test, it's their discretion to arrest when they think there's an emergency.

03:51No.

03:52What we understand the proviso to do is to remove that blanket special layer of protection in H.

03:59That requires the U.S. in these types of cases to battle it out under the discretionary function exception.

04:05And that's quite significant because there's a large set of cases that are going to flunk this court's two-part test in Galbert,

04:12chief among them the raids in Collinsville.

04:15And so by removing the proviso...

04:17The flunk...

04:17That's right.

04:19Flunk it.

04:19All right.

04:20So by removing the proviso, it exposes...

04:23It requires the United States to hash it out under the discretionary function exception.

04:29As I say, there are plenty of cases that are going to fall outside that discretionary function exception.

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