William Fullam Criminal Law Professor Poulsen Nov.

12, 2010

Criminal Liability Of The Government

In early English common law, there is sovereign immunity. It declared that his people could not sue the King. The reason being that, since the King made the laws, he could not be held accountable in the courts he ruled over.

The Eleventh Amendment states, The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. Allowing that States are protected from suit for money damages or property reimbursement, in (1908) the Supreme Court ruled that the Federal Courts could injunction State Officials from violating federal law. In (1946) a B-52 bomber flew through a heavy bank of fog into the Empire State Building. In so killing many people. Months later the government offered money to the families of the victims, some took the money, others sued. Out of that suit came the Federal Tort Claims Act (FTCA). This suit is the first that Congress passed that allowed people to sue the Government.

The FTCA grants exclusive jurisdiction to the Federal Courts to dispose of claims by individuals and corporations against the United States where the lawsuits seek compensation, "for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the United States where that employee acted in performance

of his or her governmental duties if the same action resulting in injury would impose liability on a private individual under state law in similar circumstances. The FTCA does not address the liability of Federal Employees to the injured party. In (1988) through the Federal Employees Liability Reform and Tort Compensation Act, also known as the Westfall Act by the name of the case that was overruled. The ruling states, When a federal employee is sued to collect money damages for an action performed within the scope of his or her employment, the United States is substituted as the defendant and the employee is excused from the case without the potential for any personal liability. This substitution is not available, however, if the employee's action violated the United States Constitution in circumstances where the courts allow a damage remedy against the employee for that violation. It is based upon a long-standing public policy that public officers and employees should not be deterred in the performance of official duties by fear they will be personally liable for consequences that may result from the performance of those duties. Two categories of immunity have evolved from the court decisions: (1) absolute immunity and (2) qualified immunity. Absolute immunity has limited application. It is available only to members of legislative bodies, judges, and prosecutors when they are engaged in the performance of acts that are legislative, judicial, or prosecutorial in nature. In the performance of other official duties these officers are entitled to qualified immunity. The defense of qualified immunity is available to public officers and employees in two types of suits: (1) those for damages based on an allegation that the acts of the officer or employee have deprived the plaintiff of rights guaranteed by federal statute or the United States Constitution, commonly referred to as civil rights suits, and (2) those for damages alleged to have resulted from the negligent or wrongful performance of official duties without an allegation of deprivation of civil rights Federal and State Courts may hear civil rights suits, however, it is by their decision

whether the public officer or employee is entitled to immunity based on the legal principles of the federal court. It is the courts that must decide whether the public officer or employee at the time the action was taken, violated clearly established law. If at that time the law was clearly established that person knew or should have known that what they were doing was unlawful, The officer or employees state of mind does not make that determination it is by asking whether the unlawfulness of the action would be obvious to another public officer or employee under the same circumstances.

In November, 2009, Judge Stanwood R. Duval, Jr. of the U.S. District Court, issued a landmark ruling finding the Army Corps of Engineers' negligent failure to maintain and operate the Mississippi River properly was a substantial cause for the fatal breaching of the Levee during hurricane Katrina. If the judges ruling is upheld on appeal, thousands of individuals and entities whose property was damaged or destroyed, or who suffered personal injury, in St. Bernard Polder and the Lower 9th Ward, could be eligible for compensation from the U.S. Army Corps of Engineers.

In July, 2003. 336 F.3d 294. United States of America v. St. Louise University, SLU was ordered to pay restitution for damages due to a child being paralyzed from a polio vaccination. SLU argued that Danny Callahan's polio vaccine came from one of the seeds that the district court, in Sabins case (Sabins Oral Prods. Liab. Litg., 984 F.2d 124 (4th Cir.1993)), had concluded the government negligently approved in violation of its own regulatory standards. Since the court had concluded that the government's failings proximately caused the injuries of the Sabins cases plaintiffs, SLU suggested that those same regulatory violations must also be

held to have proximately caused Danny's injuries. The district court agreed with SLU. The court granted partial summary judgment to SLU, concluding that the government was liable in contribution to SLU, but reserving for later the determination of the extent of the government's liability to SLU. How is criminal liability extending to our Government and its employees? First our Government needs to be protected from attack from others that do not like what our justice system stands for and so do we as citizens. We have a Government that employs thousands of people. All of which are trained to do some sort of service to our country. We cannot expect them not to make mistakes and when they do, the employee or the Government must answer to the courts. I see that granting immunity for certain situations is needed so that workers will not be nervous and second guess themselves as to what their job entails and without fear of prosecution but we all have rights and have to face repercussions for making wrong decisions. The definition of liability is; A legal duty or obligation. The Constitution of the United States gives each American citizen inalienable rights. It is our Governments legal duty and obligation to see that those rights are protected and enforced. It is our duty and obligation as citizens, of these United States, that we honor and uphold the laws that are giving us also. We are afforded the right to have suit with our Government or its employees. the Government also needs to make sure that its laws are protected to. We are only human and eventually we are going to make mistakes. As long as we are learning from them and dont continue making them over and over we will continue to grow and get stronger.

336 F.3d 294 United States of America v. St. Louis University Federal Tort Claims Act: West's Encyclopedia of American Law (Full Article) from Answers.com Federal Tort Claims Act - Wikipedia, the free encyclopedia Personal Liability of Public Officers and Employees | UT Watch on the Web Eleventh Amendment to the United States Constitution - Wikipedia, the free encyclopedia Government held liable in warrantless wiretapping case - CNN Hurricane Katrina Flooding - Levee Failure Lawsuit