One of the most common mantras one hears about the federal judiciary is that its judges should not legislate – that is, legislate from the bench – but should interpret and apply the law as it is. it was written. A new case that could be brought before the Supreme Court would make this particularly clear.

A bipartisan group of members of Congress, including Senators Rand Paul (R-Ky.), Ron Wyden (D-Ore.) and Cynthia Lummis (R-Wyo.), as well as Representatives Thomas Massie (R-Ky.) , Nikema Williams (D-Ga.), Harriet Hageman (R-Wyo.) and Dan Bishop (R-NC) – are urging the high court to take up the case, which revolves around a family whose home was wrongly raided by the FBI in the middle of the night and subsequently denied the right to sue for damages.*

But the reason the family was turned away was particularly perverse, the members of Congress wrote in a recent statement. Short before the high court, arguing that the United States Court of Appeals for the 11th Circuit overturned the relevant law when it blocked Curtrina Martin, the plaintiff, to sue.

Early one morning in 2017, Martin and his then-fiancé, Hilliard Toi Cliatt, were awakened by the FBI detonating a flash grenade in their home and ripping their door off its hinges. The officers then headed to their bedroom and found the couple hiding in the closet, where they had retreated in fear; one officer dragged Cliatt outside and handcuffed him, while another pointed his gun and yelled at Martin, who said she fell onto a rack in the rapidly unfolding chaos. Her 7-year-old son was in her room and she said his mind had gone to a dark place.

“I don’t know if there’s an appropriate word I can use” to express the fear she felt, Martin said me this summer.

The FBI couldn’t find out who they came for, because the suspect didn’t live there and had no connection to Martin or Cliatt. When Martin sued, the 11th Circuit not only granted immunity to Lawrence Guerra, the leader of the SWAT raid, but the judges also said his claims could not be pursued under Federal Tort Claims Act (FTCA), the legislation that allows people to bring various lawsuits. state crimes against the federal government.

It is ironic, however, that the FTCA was revised in the 1970s with an enforcement clause that greenlights lawsuits against the federal government for intentional torts committed by federal law enforcement. The inspiration for the law, the members of Congress wrote, were two erroneous house searches in April 1973 against families in Collinsville, Illinois.

These raids gained national attention just over 50 years ago. On the evening in question, federal agents searched the home of Herbert and Evelyn Giglotto; About 30 minutes later, various officers raided the home of Donald and Virginia Askew. Neither house was a real target of the federal government.

“Mr. and Mrs. Giglotto testified under oath today that they were handcuffed by screaming officers, thrown onto their bed, insulted with a stream of obscenities and repeatedly threatened with death while an officer pointed a gun cocked to Mr. Giglotto’s head”, wrote The New York Timesreporting testimony before the Senate in May 1973. “Much of their apartment was ransacked and damaged.”

Charles Percy, then a Republican senator from Illinois, presided over this hearing. “You can rest assured,” he said, according to the Times“that I will find out who ordered this investigation.” He would continue to defend the enforcement provisions of the FTCA.

The similarities between Martin’s experience and those of the Giglottos and the Askews are hard to ignore, as the members of Congress write in their brief to the Supreme Court.

“The plain text of the (enforcement) clause provides – and it was passed specifically to ensure – that victims of wrong-house raids by federal agents like the Collinsville families can seek redress in the United States in case of searches in bad houses”, they write. “Yet the Eleventh Circuit’s decision strikes down the enforcement clause in precisely these circumstances.”

The debate over law enforcement accountability in the United States has been turbulent. Conditional immunity – the legal doctrine that protects state and local government actors from federal civil suits if their alleged misconduct was not “clearly established” in prior case law – was created by the Supreme Court. Despite a little movement in 2020 and 2021, Congress has not fixed that legislatively. A lot victims of alleged government abuse are therefore seized Since find relief.

But in Martin’s case, it appears that Congress did propose an enforceable legislative solution – and the 11th Circuit struck it down. “This asymmetry is untenable,” the members of Congress write, “and contravenes Congress’s deliberate decision 50 years ago to accept responsibility and provide redress to those who were harmed by the wrongdoing of federal agents responsible for of law enforcement.”

*CORRECTION: The original version of this article incorrectly named a member of Congress.