
Abstract
Sovereign immunity protects the government from liability arising in suits brought against it by citizens. Though lacking a firm constitutional basis, sovereign immunity has been justified as protecting the public fisc and maintaining the sense of sovereign dignity. The Federal Tort Claims Act (FTCA) broadly waives sovereign immunity for tort claims against the United States. The discretionary function exception maintains immunity for tortious acts committed by employees acting within the valid bounds of their discretion. There is a circuit split about whether the discretionary function exception immunizes tortious conduct that is also unconstitutional. Circuits in the majority side of the split interpret the discretionary function to never immunize unconstitutional torts. Minority circuits understand the exception to apply to all covered tortious conduct on the part of governmental employees, even acts that violate the Constitution.
This Comment argues that the discretionary function exception should only immunize unconstitutional tortious conduct when the actions do not violate clearly established constitutional rights of which a reasonable officer would have known. This solution better serves the purposes of sovereign immunity and the discretionary function exception than either side of the existing circuit split.
Start Page
427
Recommended Citation
Grah, Liam
(2025)
"Adjusting Immunity for Unconstitutional Torts,"
University of Chicago Legal Forum: Vol. 2024, Article 13.
Available at:
https://chicagounbound.uchicago.edu/uclf/vol2024/iss1/13