On March 27, 2013, the Supreme Court of the United States decided Millbrook v. United States, No. 11-10362, holding that the waiver of sovereign immunity created by the "law enforcement proviso" in the Federal Tort Claims Act extends to acts or omissions of law enforcement officers that arise within the scope of their employment, regardless of whether the officers are engaged in investigative or law enforcement activity, or are executing a search, seizing evidence, or making an arrest.

Kim Millbrook, a former prisoner in the Federal Bureau of Prisons (BOP), brought a lawsuit under the Federal Tort Claims Act against the BOP, alleging that he was sexually assaulted and verbally threatened by prison guards while he was in the BOP's custody. He alleged that, under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b)(1), the BOP would be liable if he succeeded on his claims of assault and battery. The Government moved to dismiss based on the so-called "intentional tort exception" to the FTCA, § 2680(h), which immunizes the United States from suits for intentional torts, including assault and battery. In response, Millbrook relied on the "law enforcement proviso" to the FTCA, which extends the waiver of sovereign immunity to intentional torts (including assault and battery) based on the "acts or omissions of investigative or law enforcement officers." The District Court dismissed Millbrook's claim and the United States Court of Appeals for the Third Circuit affirmed, holding that the "law enforcement proviso" only applies "when the tortious conduct occurs in the course of executing a search, seizing evidence, or making an arrest."

The Supreme Court reversed, holding that nothing in the plain language of the "law enforcement proviso" limits its application to acts of law enforcement officers occurring in the course of investigative or law enforcement activities. The Court explained that the FTCA by its terms focuses on the "status of persons whose conduct may be actionable, not the types of activities that may give rise to a tort claim against the United States." In other words, the FTCA's text did not limit the waiver of sovereign immunity to intentional torts committed by law enforcement officers who were executing a search, seizing evidence, or making an arrest. So long as the officer was acting within the scope of his employment and was a "law enforcement officer" as defined by the FTCA, the "law enforcement proviso" applied to waive the United States' sovereign immunity.

Justice Thomas delivered the opinion for a unanimous Court.

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