Claims of excessive force by federal immigration agents raise an immediate and difficult question: who can be sued? Individual agents often assert qualified immunity, while constitutional claims under Bivens have been sharply limited by the Supreme Court.
In many cases, the most viable—and often overlooked—path to recovery is a claim against the United States itself under the Federal Tort Claims Act (FTCA).
The Federal Tort Claims Act
The FTCA waives the federal government’s sovereign immunity for certain torts committed by federal employees acting within the scope of their employment. Rather than suing the agent personally, the plaintiff sues the United States, standing in the shoes of a private party under state tort law.
In excessive force cases, plaintiffs typically plead state-law torts such as assault, battery, and false arrest/imprisonment. The key question in these cases becomes whether the ICE agent’s conduct—often alleged to violate the Fourth Amendment’s reasonableness standard—would constitute a tort under the law of the state where the incident occurred. If so, and if procedural prerequisites are met (including administrative exhaustion), the FTCA provides jurisdiction, unless an exception applies.
The Law Enforcement Proviso
The FTCA was amended in 1974 to allow lawsuits against the federal government for intentional torts, such as assault, battery, and false imprisonment, committed by federal law enforcement officers. This so-called “law enforcement proviso” provides:
Any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights: Provided, That, with regard to acts or omissions of investigative or law enforcement officers of the United States Government, the provisions of this chapter and section 1346(b) of this title shall apply to any claim arising, on or after the date of the enactment of this proviso, out of assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution. For the purpose of this subsection, “investigative or law enforcement officer” means any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law.
28 U.S.C. § 2680(h). Importantly, in 2025, the Supreme Court held that even where the law enforcement proviso applies, it is still subject to the discretionary function exception, where applicable. Martin v. United States, 605 U.S. 395 (2025)
The Discretionary Function Exception
The discretionary function exception, codified at 28 U.S.C. § 2680(a), preserves sovereign immunity for claims based on “the exercise or performance… of a discretionary function or duty… whether or not the discretion involved be abused.” The government frequently invokes this exception in FTCA cases involving law enforcement, arguing that use-of-force decisions inherently involve judgment and discretion. Courts, apply a strict two-step test established by the U.S. Supreme Court.
Step One: Did the Conduct Involve Judgment or Choice?
In Berkovitz v. United States, the Supreme Court held that the exception does not apply if a statute, regulation, or binding policy specifically prescribes a course of action. 486 U.S. 531 (1988). In excessive force cases, this step is often fatal to the government’s defense because federal officers do not have discretion to use unreasonable force and the Fourth Amendment imposes mandatory constitutional limits on such force. Where conduct violates a clearly established constitutional rule, it cannot be characterized as discretionary.
Step Two: Was the Judgment Grounded in Policy Considerations?
Even if discretion exists, the Supreme Court in United States v. Gaubert held that the judgment must be the kind the exception was designed to protect; i.e., one grounded in social, economic, or political policy. 499 U.S. 315 (1991). This is where excessive force claims almost always defeat the exception. Courts consistently distinguish between policy decisions (e.g., enforcement priorities, resources allocation, etc.) and operational conduct (e.g., how force is applied during an arrest). An ICE agent’s decision to strike, tackle, shoot, or restrain a person in an unreasonable manner is operational misconduct, not policy implementation.
Courts have repeatedly held that federal officers do not possess discretion to violate the Fourth Amendment. Because excessive force is, by definition, unconstitutional, it cannot be protected discretionary conduct.
As courts continue to narrow the Bivens remedies, plaintiffs are increasingly using the FTCA to bring excessive force claims. The discretionary function exception is not a shield for excessive force. When ICE agents use unreasonable force in violation of the Fourth Amendment, they act outside the scope of protected discretion. In those cases, the FTCA remains a powerful and viable mechanism for holding the federal government accountable.