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Law Pro, Criminal Defense Lawyer
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Experience:  20 years trial experience in defense of criminal cases
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WHAT BASIS CAN A PERSON SUE THE GOVERNMENT AND/OR SUE OFFICIALS

Resolved Question:

WHAT BASIS CAN A PERSON SUE THE GOVERNMENT AND/OR SUE OFFICIALS THAT WORK FOR THE GOVERNMENT. HOW WOULD THIS BE DONE?
Submitted: 4 years ago.
Category: Criminal Law
Expert:  Law Pro replied 4 years ago.

The Federal Tort Claims Act or "FTCA", (June 25, 1948, ch. 646, Title IV, 62 Stat. 982, "28 U.S.C. Pt.VI Ch.171" and 28 U.S.C. § 1346(b)), is a statute enacted by the United States Congress in 1948. "Federal Tort Claims Act" was also previously the official short title passed by the Seventy-ninth Congress on August 2, 1946 as Title IV of the Legislative Reorganization Act, 60 Stat. 842, which was classified principally to chapter 20 (§§ 921, 922, 931-934, 941-946) of former Title 28, Judicial Code and Judiciary. All states have adopted or enacted themselves mirror copies of the FTCA as to themselves.

 

The FTCA permits private parties to sue the United States in a federal court for most torts committed by persons acting on behalf of the United States. The FTCA constitutes a limited waiver of sovereign immunity.

 

Liability under the FTCA is limited to "circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b). The FTCA exempts, among other things, claims based upon the performance, or failure to perform, a "discretionary function or duty." 28 U.S.C. § 2680(a). The FTCA also exempts a number of intentional torts, although the United States is liable for specific intentional torts such as assault, battery, and false imprisonment, if committed by federal law enforcement officers. 28 U.S.C. § 2680(h).

 

In a nutshell, in the late 1930's while the newly activist federal government was busy fixing the depression and preparing for WWII, they addressed the problem by passing something known as the Federal Tort Claims Act, or FTCA. The catalyst for finally passing the FTCA in 1945 was the crash of the B-25 bomber, lost in the fog, into the side of the Empire State Building.

 

In finally establishing tort liability against the federal government, the drafters of the FTCA had to keep in mind the reason for sovereign immunity in the first place-governments do a lot of stupid things (start wars, fail to repair levees, etc.) that hurt people, and if folks were able to sue in court for all that stuff it would be totally impractical-the government would be bankrupt and couldn't make sound decisions. It is, after all, the ultimate responsibility of government to strike a balance between competing interests-someone usually benefits and someone else gets hurt. On the other hand, if an IRS agent, in the performance of his or her official duties, goes through a red light and hits your car, Uncle Sam should have to pick up the tab as the employer of the lousy driver.

 

The solution was arrived at by dividing all government actions into two categories-discretionary and ministerial. This is sometimes referred to as the "discretionary function" test. A discretionary function would be, for example, the decision by the US Air Force to haul jet fuel on public highways in tank trucks. The ministerial function would be doing the actual hauling. So if the Air Force personnel leaves the fill cap loose and the jet fuel leaks all over an exit ramp and causes accidents (this is a case I actually had) the air force is responsible for that. If however, it turns out that using the public highways to haul jet fuel in general is a bad idea, the air force cannot be liable for that, because it is based on a policy decision about how fuel should be hauled. In short, it is negligence in the execution, not the planning, that creates governmental tort liability.

 

The new FTCA got almost an immediate workout. On April 16, 1947, a ship loaded with ammonium nitrate fertilizer for the Marshall Plan spontaneously blew up in the port of Texas City, Texas, setting off a nearby ammunition ship, other ships, and fuel storage tanks on shore. Over 500 people were killed, and the harbor at Texas City itself was reduced to a smoldering ruin. The entire scheme about storing and shipping both the fertilizer and ammunition had been undertaken and supervised by the federal government, everybody consequently sued under the FTCA. They lost. The US Supreme Court ruled that even if the plaintiffs could prove that the federal planning had been really, really stupid (which it was) it all fell under the umbrella of "discretionary function" decision making, therefore the feds didn't have to pay squat. The outcry was so great that congress passed special legislation to compensate the victims in Texas City. But congress left the FTCA intact.

Customer: replied 4 years ago.
I APPRECIATE THE EXAMPLES GIVEN, BUT I'M NOT SURE I HAVE AN ANSWER TO THE QUESTION, ALTHOUGH I UNDERSTAND IT WOULD VARY ON THE SITUATION AT HAND. IF, AS IN YOUR EXAMPLE GOV. OFFICIAL GOES THROUGH RED LIGHT ON DUTY .......AND SOMEONE INNOCENT SUFFERS, HOW WOULD YOU BE ABLE TO GO ABOUT SUING THE GOVT. AND THE OFFICIAL THAT DID THE DAMAGE WHILE ON DUTY?
Expert:  Law Pro replied 4 years ago.

I was wondering what exactly happened in your matter.

 

 

If your personal injury suit involves a claim against a federal, state, local government entity, or a government employee, you will most likely need to follow strict guidelines in bringing a lawsuit, including the requirement that you file a "notice of claim" within as few as 60 days after your injury. This is because governments and their subdivisions are usually entitled to what is known as "immunity" to liability and lawsuits, meaning that they cannot ordinarily be sued without permission.

 

Most governments have enacted laws that contain rules for filing an injury claim against them, and through these laws (usually called "Tort Claims Acts") federal, state, and city governments have conditionally given up or "waived" immunity to legal liability for an accident or injury. Note that if you do not follow the rules in these law (including giving the government prompt notice of your injury claim), you will lose the right to receive any compensation for injuries caused by the government.

 

Basically you need to prove that the govt employee acted recklessly or otherwise engages in gross negligence before your suit will be allowed. That's usually a tough burden but can sometimes be plainly obvious from the facts of the matter.

Customer: replied 4 years ago.
Thank you for the reply:

Here is a more detailed question that gets to the "root" of what happened and what I am trying to find out: When seizure warrants are issued based on probable cause and property is seized. Assuming that a magistrate signed off on these warrants and now seizures have begun, what responsibility does the government have in terms of care and responsibility? The nexus on a major seizure, invoving cars, was never shown to the magistrate. The probable cause was based on, "We took the cars because they were purchased durring the alleged fraud" however, no accounting was provided of just how these funds were used or co-mingled from prior funds whereby we had the same amount or value in cars PRIOR to the period of fraud in question. In addition, BEFORE charges were brought, stock trading accounts were seized and not "held" or "frozen", they were sold off at a low in the market from a timing standpoint. Our concern is the following:
1) Did they have the right to seize the cars without providing a "Nexus"?
2) Were they able to SELL and not freeze these stocks? Before an indictment?
3) What level of care is expected when seizing these cars as they were collector-quality automobiles. They need constant care or they will depreciate in value quickly.

There has been an indictment issued 9 months later after seizures. There still has not been a "Nexus" provided for the car seizures which definetely involved co-mingled funds from prior to the alledged fraud. Also, does this change the fact that they are able to sell the stocks verses just "holding" or "freezing"?
Expert:  Law Pro replied 4 years ago.

Yes, they had the right to seize the vehicles if they thought they were acquired by the use of illegally obtained or used funds. They do such to prevent persons charged with fraud to sell of the assets and dispurse or even use the funds.

 

This is done routinely where all of a persons assets are immediately frozen.

 

Were they able to sell and not freeze the stocks? Yes, they are able to sell the stocks and place the proceeds into a escrow account.

 

They would be liable to the extent they acted "recklessly or otherwise engaged in gross negligence" as to the vehicles care and maintenance.

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