Curtrina Martin v. USA

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FOR PUBLICATION

In the

United States Court of Appeals

For the Eleventh Circuit

No. 23-10062

CURTRINA MARTIN,

Individually and as Parent and Next friend of,

G.W.,

a Minor,

HILLIARD TOI CLIATT,

Plaintiffs-Appellants,

versus

UNITED STATES OF AMERICA,

LAWRENCE GUERRA,

SIX UNKNOWN FBI AGENTS,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Georgia

D.C. Docket No. 1:19-cv-04106-JPB

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2 Opinion of the Court 23-10062

Before JORDAN, JILL PRYOR, and KIDD, Circuit Judges.

PER CURIAM:

“The United States, as sovereign, is immune from suit save

as it consents to be sued[.]” United States v. Sherwood, 312 U.S. 584,

586 (1941). Through the Federal Tort Claims Act, Congress waived

that immunity for certain torts committed by federal government

officials and employees. See 28 U.S.C. §§ 1346(b), 2671 et seq. But, in

so doing, Congress recognized that there are certain governmental

functions that should not be “disrupted by FTCA lawsuits” and

carved out 13 separate exceptions (one of which has a proviso). See

Molzof v. United States, 502 U.S. 301, 312 (1992).

This case, which arises out of a wrong-house raid, presents

us with two of those exceptions—the discretionary-function exception and the intentional-tort exception. See 28 U.S.C. §§ 2680(a), (h).

We also address the grant of qualified immunity to the Federal Bureau of Investigation agent who was in charge of the raid.

Following review of the record, and with the benefit of oral

argument, we affirm the district court’s grant of summary judgment to the United States on the plaintiffs’ FTCA claims. We reverse the grant of qualified immunity to the FBI agent.

I

This case is before us on remand from the United States Supreme Court. In Martin v. United States, 605 U.S. 395 (2025) (Martin

II), the Court expressly abrogated three of our prior cases, vacated

our prior opinion in full, and remanded for further consideration

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in light of the change to our FTCA precedent. We begin with the

facts and then pivot to the case’s procedural history.

A

In 2015, the FBI commenced Operation Red Tape to address

violent gang activity in Georgia. On October 12, 2017, the Operation culminated in a 30-defendant indictment. Arrest warrants, including one for gang member Joseph Riley, and search warrants,

including one for Mr. Riley’s residence in southwest Atlanta, soon

followed. The address of that residence was 3741 Landau Lane.

Hilliard Cliatt, his then-fiancée Curtrina Martin, and her

seven-year-old son G.W. were not among the defendants indicted.

Yet, through no fault of their own, the Cliatt-Martins were caught

in the crosshairs of Operation Red Tape.

At approximately 5:00 am on October 18, 2017, an FBI

SWAT team broke down the door of the Cliatt-Martin residence—

located at 3756 Denville Trace—and immediately detonated a flash

bang grenade. Mr. Cliatt and Ms. Martin cowered in a closet as the

SWAT team—wearing full tactical gear, green ballistic helmets,

protective headphones and lenses, and ballistic vests—stormed

into their bedroom. Each member of the SWAT team carried a rifle

and a holstered handgun. Soon after entering the bedroom, the

SWAT team located Mr. Cliatt in the closet, dragged him onto the

bedroom floor, and handcuffed him. G.W. was in his room across

the hall, awake and terrified by the sounds of the raid.

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Amidst the chaos, the SWAT team leader, Agent Lawrence

Guerra, noticed that Mr. Cliatt did not have the same face and neck

tattoos that he had seen in the photographs of their target, Mr. Riley. Agent Guerra asked Mr. Cliatt for his name and address, which

he provided, and which did not match the name and address in the

search and arrest warrants. Around the same time, a SWAT team

member located a piece of mail with an address different from the

warrants. After realizing their mistake, the SWAT team immediately left the home, located Mr. Riley, and arrested him as he attempted to flee. Agent Guerra later returned to the Cliatt-Martin

home, provided FBI contact information, and documented the

damage to the front door caused by the forcible entry.

Br. for Appellant at 5. See also D.E. 101-4 at 1.

As shown above, the Cliatt-Martin home is three houses

away from Mr. Riley’s residence—on a different street and with an

intervening cross street between them. Agent Guerra’s excuse for

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going to the wrong home was that his personal Garmin-brand GPS

unit directed him to the wrong home. The Cliatt-Martins vehemently dispute whether Agent Guerra conducted an adequate site

survey or day-of drive-by in advance of the raid. Agent Guerra

threw his personal Garmin GPS away shortly after the incident,

and has not provided an explanation for doing so.

B

Since the wrong-house raid on October 18, 2017, this case

has had a lengthy procedural history. In September of 2019, Mr.

Cliatt, Ms. Martin, and G.W. filed this action. They brought six

claims: (1) false arrest and false imprisonment against the United

States under the FTCA (Count I); (2) assault and battery against the

United States under the FTCA (Count II); (3) trespass and interference with private property against the United States under the

FTCA (Count III); (4) negligent infliction of emotional distress and

intentional infliction of emotional distress against the United States

under the FTCA (Count IV); (5) negligence against the United

States under the FTCA (Count V); and (6) illegal entry, detention,

and false arrest in violation of the Fourth Amendment against

Agent Guerra and other agents under Bivens v. Six Unknown Fed.

Narcotics Agents, 403 U.S. 388 (1971) (Count VI). 1

1 Mr. Cliatt and Ms. Martin (with her son) filed two separate complaints, initiating two actions before they were consolidated. The difference between the

two complaints is that Mr. Cliatt’s complaint added the interference with private property to Count III (in addition to trespass) and the intentional infliction USCA11 Case: 23-10062 Document: 78-1 Date Filed: 10/07/2026 Page: 6 of 50

6 Opinion of the Court 23-10062

On August 27, 2021, the government and Agent Guerra

moved for summary judgment. The government argued that the

district court lacked subject-matter jurisdiction over Counts III–V

under the FTCA’s discretionary-function exception. It then asserted that the plaintiffs’ remaining claims against the government

(Counts I and II) failed under Georgia law. Agent Guerra maintained that he was entitled to qualified immunity on Count VI because he did not violate clearly established law. 2

On September 23, 2022, the district court granted the government’s motion as to Counts III–V, ruling that the discretionaryfunction exception restored the government’s sovereign immunity. The court also concluded that Counts I and II fell within the

discretionary-function exception but that—based on then-existing

Eleventh Circuit precedent—the law enforcement proviso overcame that exception. Then, rejecting its arguments under Georgia

law, the court decided that the government was not entitled to

summary judgment as a matter of law. Additionally, the court

granted Agent Guerra’s motion for summary judgment as to

Count VI, concluding that qualified immunity shielded him from

the plaintiffs’ Fourth Amendment claims.

of emotional distress to Count IV (in addition to negligent infliction of emotional distress).

2 Agent Guerra previously moved to dismiss on this ground. The district court

construed that motion as one for summary judgment (based on his attached

affidavit) and denied it without prejudice.

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On November 21, 2022, the government moved for reconsideration based on our intervening decision in Kordash v. United

States, 51 F.4th 1289 (11th Cir. 2022), which solidified a Supremacy

Clause defense to FTCA claims. The district court, applying Kordash, granted the government summary judgment on Counts I and

II.

The plaintiffs appealed. The government again argued that

Georgia law barred the plaintiffs’ FTCA claims for false imprisonment and assault and battery and, even if not, the Supremacy

Clause defense applied. It then asserted that the discretionary-function exception barred the plaintiffs’ remaining FTCA claims. Applying Kordash, 51 F.4th at 1293, as well as a number of discretionary function cases, we affirmed. See Martin v. United States, No. 23-10062, 2024 WL 1716235, at *6–*8 (11th Cir. Apr. 22, 2024) (Martin

I).

The plaintiffs filed a petition for writ of certiorari, and the

Supreme Court granted the petition to answer the following two

questions: (1) “[w]hether the Constitution’s Supremacy Clause

bars claims under the Federal Tort Claims Act when the negligent

or wrongful acts of federal employees have some nexus with furthering federal policy and can reasonably be characterized as complying with the full range of federal law[;]” and (2) “[w]hether the

discretionary-function exception is categorically inapplicable to

claims arising under the law enforcement proviso to the intentional

torts exception.” Martin v. United States, 145 S. Ct. 1158 (2025).

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The Supreme Court first concluded that the law enforcement proviso, see 28 U.S.C. § 2680(h), only overcomes the FTCA’s

intentional-tort exception, abrogating Nguyen v. United States, 556

F.3d 1244, 1260 (11th Cir. 2009). See Martin II, 605 U.S. at 403–08.

The Court then ruled that there is not a Supremacy Clause defense

to liability under the FTCA, abrogating Denson v. United States, 574

F.3d 1318, 1347 (11th Cir. 2009), and Kordash, 51 F.4th at 1293. See

Martin II, 605 U.S. at 409–13. The Court continued:

Where does all that leave the case before us? We can

say this much: The plaintiffs’ intentional-tort claims

survive their encounter with subsection (h) thanks to

the law enforcement proviso, as the Eleventh Circuit

recognized. But it remains for that court on remand

to consider whether subsection (a)’s discretionaryfunction exception bars either the plaintiffs’ negligent- or intentional-tort claims. As we have explained, the Eleventh Circuit must undertake that assessment without reference to its mistaken view that

the law enforcement proviso applies to subsection (a).

Id. at 413–14. “Should some or all of the plaintiffs’ claims survive

the discretionary-function exception, the Eleventh Circuit must

then ask whether, under Georgia state law, a ‘private individual

under like circumstances’ would be liable for the acts and omissions the plaintiffs allege, subject to the defenses discussed in

§ 2674[.]” Id. at 414. So, here we are.

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II

Whether the United States’ sovereign immunity is waived

under one of the FTCA’s exceptions is a legal question we review

de novo. See Alvarez v. United States, 862 F.3d 1297, 1301 (11th Cir.

2017). We also review “the district court’s grant of a motion for

summary judgment de novo, applying the same legal standards used

by the district court.” Means v. United States, 176 F.3d 1376, 1378

(11th Cir. 1999) (citation omitted). “Summary judgment is appropriate when there are no genuine issues of material fact and the

movant is entitled to judgment as a matter of law.” Id. (quotation

omitted). We “must consider the evidence in the light most favorable to the nonmoving party.” Id. (quotation omitted).

On remand from the Supreme Court, the plaintiffs ask us to

“construe the [discretionary-function] exception from first principles.” Supp. Br. for Appellants at 20. Specifically, they contend that

we should examine the overlap (if any) between law enforcement

officers’ intentional torts and federal employees’ discretionary

functions on a blank slate and conclude that the discretionary-function exception cannot be applied to intentional-tort claims arising

from a wrong-house raid. They say that we have license to do so as

a three-judge panel because the Supreme Court instructed us to

engage in a “careful reexamination of this case in the first instance.”

Martin II, 605 U.S. at 415.

The government responds that all of the plaintiffs’ FTCA

claims are barred by the discretionary-function exception (now that

the Supreme Court has held that the law enforcement proviso does

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not overcome it). It also contends that the FTCA claims fail because

there would be no liability under Georgia law.

A

The FTCA’s intentional-tort exception applies to “[a]ny

claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights[.]” 28

U.S.C. § 2680(h). But, through the law enforcement proviso, sovereign immunity is not restored for the “acts or omissions of investigative or law enforcement officers of the United States Government” for claims arising out of “assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution.” Id.

On remand, the government does not meaningfully contest that

Count I for false arrest and false imprisonment and Count II for

assault and battery against it fall under both the intentional-tort exception and the law enforcement proviso.3

Below, the government never argued that Counts I and II

were barred by the discretionary-function exception. This was, of

course, against a different backdrop of now-abrogated Eleventh

Circuit precedent. See Martin II, 605 U.S. at 403–13 (abrogating Nguyen, 556 F.3d at 1260, Denson, 574 F.3d at 1347, and Kordash, 51 F.4th

at 1293). And we generally allow litigants to raise new issues

“where there is an intervening decision of the Supreme Court on

3 As to Count I, the government argues that the plaintiffs “appear to concede

that this claim may proceed only on a false imprisonment theory.” Supp. Br.

for Appellees at 8 n.4. We find no such concession by the plaintiffs.

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an issue that overrules either a decision of that Court or a published

decision of this Court that was on the books when the appellant’s

opening brief was filed[.]” United States v. Durham, 795 F.3d 1329,

1331 (11th Cir. 2015) (en banc). We therefore take up all the FTCA

claims under the discretionary-function exception—keeping in

mind that the Supreme Court held in Martin II that the law enforcement proviso does not expressly overcome this exception.

B

The discretionary-function exception applies to

[a]ny claim . . . based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal

agency or an employee of the Government, whether

or not the discretion involved be abused.

28 U.S.C. § 2680(a). 4

In United States v. Gaubert, 499 U.S. 315, 322–23 (1991), the

Supreme Court set out a two-part test to determine whether the

discretionary-function exception applies. First, we must look to the

nature of the challenged conduct and decide whether the conduct

“violated a mandatory regulation or policy that allowed no judgment or choice.” Autery v. United States, 992 F.2d 1523, 1526 (11th

Cir. 1993). The discretionary-function exception will not apply “if

a federal statute, regulation, or policy specifically prescribes a

4 Another provision, 28 U.S.C. § 2680(a), provides a due-care exception to the

sovereign immunity waiver, which is not at issue here. See Chhetri v. United

States, 823 F.3d 577, 582 (11th Cir. 2016).

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course of action for an employee to follow.” Gaubert, 499 U.S. at

322 (quotation omitted). See also Autery, 992 F.2d at 1529 (“Only if

a ‘federal statute, regulation, or policy specifically prescribes a

course of action,’ embodying a ‘“fixed or readily ascertainable

standard,”’ will a government employee’s conduct not fall within

the discretionary[-]function exception.”) (emphasis and internal citation omitted). Second, if we conclude that no “statute, regulation, or policy specifically prescribes a course of action,” we must

then consider whether the challenged conduct “is of the kind that

the discretionary[-]function exception was designed to shield.”

Gaubert, 499 U.S. at 322–23. The purpose of the exception is to “prevent judicial second-guessing of legislative and administrative decisions grounded in social, economic, and political policy through

the medium of an action in tort.” Id. at 323 (internal quotation

marks and citation omitted).

The plaintiffs mount several attacks on the application of the

discretionary-function exception to the conduct here. We begin

with their categorical arguments and then take up their case-specific arguments.

1

The plaintiffs maintain that the discretionary-function exception does not shield constitutional violations because federal officials lack discretion to violate the Constitution. They

acknowledge that our decision in Shivers v. United States, 1 F.4th 924

(11th Cir. 2021), rejected this same argument and that the Supreme

Court did not address the issue in this case. In fact, the Supreme

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Court stated that whether Shivers, 1 F.4th at 931 (and Martin I’s reliance on it, 2024 WL 1716235, at *6), espoused a mistaken view of

the discretionary-function exception was a question “well beyond”

the two that it granted certiorari to address. See Martin II, 605 U.S.

at 415.

Nevertheless, the plaintiffs contend that the Supreme

Court’s instruction to carefully reexamine this case in the first instance gives us an opportunity to reconsider Shivers. See id. See also

id. at 418 (Sotomayor, J., concurring) (noting that Shivers’ “approach,” suggesting that the discretionary-function exception applies unless a source of federal law specifically prescribes the course

of conduct “which even the Government does not defend before

this Court, would run headlong into this Court’s precedents”).

We reluctantly disagree. As a later panel, we are bound by a

prior published decision like Shivers unless the “Supreme Court

case actually abrogate[s] or directly conflict[s] with, as opposed to

merely weaken[ing], the holding of the prior panel.” United States

v. Kaley, 579 F.3d 1246, 1255 (11th Cir. 2009). We cannot, therefore,

revisit Shivers’ holding that the discretionary-function exception

immunizes unconstitutional conduct. See 1 F.4th at 929–35.

2

The plaintiffs contend that the discretionary-function exception categorically does not immunize careless conduct. Although

we have not expressly weighed in on the circuit split on this issue,

the government says that Shivers essentially rejected this argument

too. See Xi v. Haugen, 68 F.4th 824, 843 (3d Cir. 2023) (Bibas, J.,

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concurring) (noting that “there is a split over whether the exception applies when the challenged act was careless rather than a considered exercise of discretion”). Compare Willis v. Boyd, 993 F.3d

545, 549 (8th Cir. 2021) (carelessness covered by exception), Lam v.

United States, 979 F.3d 665, 682 (9th Cir. 2020) (same), and Ball v.

United States, 967 F.3d 1072, 1077 (10th Cir. 2020) (same), with Coulthurst v. United States, 214 F.3d 106, 111 (2d Cir. 2000) (carelessness

outside exception), Rich v. United States, 811 F.3d 140, 147 (4th Cir.

2015) (same), and Palay v. United States, 349 F.3d 418, 432 (7th Cir.

2003) (same).

Shivers stated that “there is nothing in the statutory language

that limits application of this exception based on the degree of the

abuse of discretion or the egregiousness of the employee’s performance.” 1 F.4th at 930 (internal quotation marks omitted). “Congress could have adopted language that carved out certain behavior

from this exception—for example, grossly negligent behavior, intentional behavior, or behavior that rises to the level of a constitutional violation.” Id. “But Congress did not do so, and it is Congress

that uniquely decides what should fall within the waiver of sovereign immunity.” Id. See also Autery, 992 F.2d at 1528 (“[N]egligence

is simply irrelevant to the discretionary function inquiry.”) (quoting Kennewick Irrigation Dist. v. United States, 880 F.2d 1018, 1029

(9th Cir. 1989)).

Although we did not couch this holding in the same “carelessness” terms, we do not think Shivers allows for a categorical

carelessness exception to the discretionary-function exception.

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Shivers held that the level of wrongfulness of the federal employees’

conduct plays no role in our analysis. See 1 F.4th at 930.

3

We now reach Gaubert’s two-step test. Importantly, “the

same governmental act may have both discretionary and nondiscretionary aspects, and in these circumstances [we] must disaggregate conduct to determine which claims are cognizable and within

the court’s jurisdiction and which are not.” 14 Wright & Miller,

Fed. Prac. & Proc. Juris. § 3658.1 (4th ed. 2015 & Apr. 2026 Supp.)

(citing Gaubert, 499 U.S. at 325–26). Accord Swafford v. United States,

839 F.3d 1365, 1370 (11th Cir. 2016) (“In evaluating whether the

discretionary-function exception applies, we first must determine

exactly what conduct is at issue.”) (internal quotations marks and

citation omitted).

We begin with the proverbial elephant in the room: Mesa v.

United States, 123 F.3d 1435 (11th Cir. 1997). In Mesa, DEA agents

obtained an arrest warrant for a Pedro Pablo Mesa but arrested the

wrong Pedro Pablo Mesa. See id. at 1437. The Mesas alleged that

the DEA agents were negligent and reckless in their investigation

of the whereabouts of the Pedro Pablo Mesa named in the arrest

warrant. See id. We held that “the investigation of the whereabouts

and identity of the subject of an arrest warrant prior to service of

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the arrest warrant is conduct that falls within the discretionary[-]

function exception.” Id. at 1438. 5

Under the first part of the Gaubert test, we concluded that

“the decisions regarding how to locate and identify the subject of

an arrest warrant and regarding whether the person apprehended

is in fact the person named in the warrant are discretionary in nature and involve an element of judgment or choice.” Id. On the

second part of the test, we reasoned that “the decision regarding

how to locate and identify the subject of an arrest warrant is fundamentally rooted in policy considerations, and that judicial secondguessing of this decision thus is not appropriate.” Id. We considered

that the agents might weigh secrecy, urgency, public safety, and

the need to preserve evidence. See id.

Additionally, once inside the wrong residence, “the agents

may consider the possible repercussions of erroneously deciding

that the person they apprehended is not in fact the person named

in the warrant and letting that person go free.” Id. at 1438–39. We

ruled, therefore, that “the discretionary[-]function exception applies to the process of determining whether the person apprehended is actually the person named in the arrest warrant.” Id. at

1439. See also Mid-South Holding Co. v. United States, 225 F.3d 1201,

1206 (11th Cir. 2000) (holding that “the on-site decisions of the

5 The other claims, which were not at issue in the appeal, included negligence

in the procurement of a warrant, assault, battery, false imprisonment, intentional infliction of emotional distress, invasion of privacy, and a Bivens claim.

See Mesa, 123 F.3d at 1437 n.2.

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agents of the Customs Service concerning the manner in which to

search [a] vessel also fall within the scope of the discretionary[-]function exception” under the Suits in Admiralty Act).

The plaintiffs nonetheless insist that the actions underlying

a wrong-house raid are not based on a discretionary function. They

offer a “ground-up construction” of the exception, showing that

the discretionary-function exception applies only when an employee exercises discretion to fulfill the ends of an administrative

agency based on the discretionary-function exception’s text, the

discretionary-function exception Supreme Court precedent, and

the legislative history of the law enforcement proviso. See Supp.

Reply Br. of Appellants at 1.

It is true that the discretionary-function exception’s text references administrative agencies. See 28 U.S.C. § 2680(a). But we

cannot ignore that it includes claims based on “a discretionary function or duty on the part of a federal agency or an employee of the

Government[.]” Id. (emphasis added).

We recognize that the cases in which the Supreme Court analyzed the discretionary-function exception—leading up to

Gaubert—involved regulatory policy. These cases include Dalehite v.

United States, 346 U.S. 15, 38–41 (1953) (Tennessee Valley Authority’s fertilizer production program covered by exception); Indian

Towing Co. v. United States, 350 U.S. 61, 69 (1955) (Coast Guard’s upkeep of lighthouse was not discretionary even if the decision to

build the lighthouse is discretionary); Hatahley v. United States, 351

U.S. 173, 181 (1956) (the destruction of Navajo horses by federal

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agents was not discretionary where they failed to comply with a

federal regulation); United States v. S.A. Empresa de Viacao Aerea Rio

Grandense (Varig Airlines), 467 U.S. 797, 820 (1984) (the Federal Aviation Administration’s decision to certify airplanes without first inspecting them “falls squarely” within the exception); Berkovitz v.

United States, 486 U.S. 531, 547 (1988) (the formulation of policy by

the Food and Drug Administration to regulate polio vaccine lots

was covered by the exception but the decision to release to the public the particular lot of vaccine in violation of those standards was

not covered); and Gaubert, 499 U.S. at 332 (decisions through which

federal savings and loan associations supervised thrift institutions

were covered by the exception). But cf. Berkovitz, 486 U.S. at 538 (rejecting the argument that “the exception precludes liability for any

and all acts arising out of the regulatory programs of federal agencies” in part because “the language of the exception . . . protects

‘discretionary’ functions, rather than ‘regulatory’ functions”). 6

The same, however, cannot be said of our own cases. Indeed, we have applied the discretionary-function exception to lowlevel decisions involving some modicum of discretion. See, e.g.,

Mesa, 123 F.3d at 1438 (steps taken by DEA agents to identify the

6 One caveat related to Indian Towing, 350 U.S. at 64–65: Although the government conceded that the discretionary-function exception would not cover the

negligent upkeep of the lighthouse and instead argued that the language of

Dalehite, 346 U.S. at 28, precluded liability, courts and scholars alike generally

agree that Indian Towing “directly bear[s] upon construction of the exception.”

Harold J. Krent, Preserving Discretion Without Sacrificing Deterrence: Federal Government Liability in Tort, 38 UCLA L. Rev. 871, 879 (1991).

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subject of an arrest warrant were covered by the exception); Hughes

v. United States, 110 F.3d 765, 768 (11th Cir. 1997) (decisions related

to security at a U.S. Post Office involve discretionary functions);

O’Ferrell v. United States, 253 F.3d 1257, 1266–67 (11th Cir. 2001) (decisions by law enforcement officials throughout an investigation,

including alleged misrepresentations implicating the plaintiffs in

the subject bombings, threatening them, illegally searching their

property, and holding their property, are not cognizable under the

FTCA).

The plaintiffs also point to the legislative history of the law

enforcement proviso. As Justice Sotomayor explained in her concurrence in Martin II, in April of 1973, 15 state and federal officers

wrongfully ransacked the home of Herbert and Evelyn Giglotto in

Collinsville, Illinois, and held them at gunpoint before realizing

their mistake. See Martin II, 605 U.S. at 419 (Sotomayor, J., concurring) (citation omitted). “The officers [then] moved on to the home

of Donald Askew, where they terrorized yet another innocent couple before confessing they had acted on a ‘bad tip.’” Id. (citation

omitted).

After learning of such egregious raids, the Senate Committee on Government Operations proposed an amendment to the

FTCA—adding the law enforcement proviso to § 2680(h). See id. at

419–20. In the Committee’s view, this amendment would make it

so that “innocent individuals who are subjected to raids of the type

conducted in Collinsville, Illinois, will have a cause of action

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against the individual Federal agents and the Federal Government.” S. Rep. No. 93–588, at 3 (1973).

If this sounds familiar, it is exactly the plaintiffs’ argument.

Why would the Senate Committee propose this amendment if the

United States’ immunity for wrong-house raids would (or could)

continue through the discretionary-function exception? Yet we are

mindful that “legislative history cannot be used to contradict unambiguous statutory text or to read an ambiguity into a statute

which is otherwise clear on its face.” Garcia v. Vanguard Car Rental

USA, Inc., 540 F.3d 1242, 1247 (11th Cir. 2008). To hold that this

legislative history creates ambiguity in the discretionary-function

exception would be in some tension with Shivers, where we cautioned against atextual exceptions to the discretionary-function exception and said that “the language Congress chose in § 2680(a) is

unqualified” and Congress did not categorically “carve[ ] out certain behavior” from the exception. See 1 F.4th at 930.

Moreover, in this very case, the Supreme Court held that the

law enforcement proviso only overrides the intentional-tort exception, and not the discretionary-function exception. See Martin II,

605 U.S. at 407. The Court noted that “[the plaintiffs] point[ed] to

a committee report discussing how Congress enacted the proviso

in response to two wrong-house raids much like their own.” Id. at

408. But it rejected the argument:

And, the plaintiffs argue, unless the proviso is given

broad effect across § 2680, it will not fulfill Congress’[ ] purpose of ensuring that wrong-house-raid

cases may proceed. But this argument stumbles,

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too. . . . Members of Congress may well have had

more than one purpose in mind when adding the proviso to the FTCA. Perhaps some thought amending

subsection (h) [the intentional-tort exception] alone

and leaving others untouched would strike a suitable

balance between immunity and liability. Perhaps others concluded there was no need to apply the proviso

more broadly because no other exception would

shield the government from liability for wrong-house

raids. Whatever the reason, no amount of guesswork

about the purposes behind legislation can displace

what the law’s terms clearly direct.

Id. (internal citations omitted).

We therefore cannot say that the discretionary-function exception does not apply to law enforcement proviso claims arising

out of wrong-house raids. Though it may be true that Supreme

Court caselaw signals a connection between a “discretionary function” and the regulatory policy of an administrative agency, our

cases—rightly or wrongly—have largely extended the discretionary-function exception to the execution of warrants by law enforcement officers. See Mesa, 123 F.3d at 1436–37.

The plaintiffs further argue that Mesa was abrogated by Utah

v. Strieff, 579 U.S. 232, 240 (2016). “Abrogation by the Supreme

Court requires that the later decision from that Court ‘demolish

and eviscerate each’ of our prior decision’s ‘fundamental props.’”

Chemaly v. Lampert, 174 F.4th 843, 851 (11th Cir. 2026) (quoting Del

Castillo v. Sec’y, Fla. Dep’t of Health, 26 F.4th 1214, 1223 (11th Cir.

2022)). Unfortunately for the plaintiffs, Strieff was a Fourth

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22 Opinion of the Court 23-10062

Amendment suppression case, not an FTCA case. Strieff addressed

“whether the discovery of a valid arrest warrant was a sufficient

intervening event to break the causal chain between [an] unlawful

stop and the discovery of drug-related evidence[.]” 579 U.S. at 239.

In deciding that it did, the Court stated that the execution of an

arrest warrant is “a ministerial act that was independently compelled by the pre-existing warrant.” Id. at 240. We are not aware of

any authority supporting the proposition that a ministerial act

within the meaning of the Fourth Amendment’s exclusionary rule

doctrine and the meaning of the discretionary-function exception

under the FTCA are the same. In short, we cannot say that Strieff

abrogated Mesa.

Nevertheless, we acknowledge that Mesa is not identical to

the case before us. Mesa, when it reached our court, only involved

a single tortious act: the negligent investigation of the whereabouts

and identity of the subject of an arrest warrant. See 123 F.3d at 1439

n.5 (stating that “we focus solely in this case on whether the appellants may pursue their claims that the agents negligently investigated the whereabouts and identity of the subject of the arrest warrant” and the failure to end the detention). Indeed, we made clear

that the plaintiffs’ allegations did “not sweep so broadly as to encompass all actions which might be taken in deciding when and

how to execute the arrest warrant.” Id. at 1437 n.3.

In Mesa, we did “not decide the question of whether all actions taken in deciding when and how to execute an arrest warrant

are subject to the discretionary[-]function exception.” Id. “Instead,

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we address[ed] the narrower question of whether the process of

locating and identifying the subject of an arrest warrant is within

the discretionary[-]function exception.” Id. With this cautionary

language in mind, we apply the two-part Gaubert test to this case.

In this case, the plaintiffs have asserted two factual theories.

The first theorizes that Agent Guerra failed to conduct a site

survey or drive-by of the target house. We believe Mesa forecloses

any argument that Agent Guerra’s planning and preparation for the

raid were outside of the scope of the discretionary-function exception.

“Government conduct does not involve an element of judgment or choice if there is a statute, regulation, or policy that requires the employee to follow a specific course of action.” Mesa,

123 F.3d at 1438 n.4 (citing Gaubert, 499 U.S. at 322). The plaintiffs

do not claim that there is a statute, regulation, or policy requiring

SWAT team leaders to conduct a pre-raid site survey. Instead, they

assert that the government’s policy is to search the right house and

that Agent Guerra had “no rightful option but to adhere to [the

warrant’s] directive.” Gaubert, 499 U.S. at 322 (internal quotation

marks and citation omitted). We think this argument—when applied to the preparation for the execution of a warrant—contravenes Mesa. We said there that the discretionary-function exception squarely applies to the “process” of determining whether the

target of a warrant is actually apprehended; it follows that the process for the target residence to be searched is also discretionary. See

Mesa, 123 F.3d at 1439. Whether to conduct a site survey and driveUSCA11 Case: 23-10062 Document: 78-1 Date Filed: 10/07/2026 Page: 24 of 50

24 Opinion of the Court 23-10062

by were clearly part of the planning, during which Agent Guerra

was vested with discretion.

The preparation to execute the warrant also implicated certain policy considerations. For example, Mesa recognized that

agents may consider the “desire to keep the investigation secret[.]”

Id. at 1438. Too many unmarked law enforcement vehicles in advance of a coordinated raid could have tipped Mr. Riley off. Other

decisions that Agent Guerra made during the planning, including

deciding the location of the staging area, the plan to enter the

house, and the timing of the raid, are grounded in a concern for

“danger to public safety” and the safety of the agents themselves.

Id. at 1439. “All of these considerations are rooted in policy considerations.” Id. Cf. O’Ferrell, 253 F.3d at 1267 (stating that law enforcement techniques (there, interrogative techniques) are “a paradigmatic example of a discretionary function”). We conclude, therefore, that any liability arising out of deficiencies in the planning process for the execution of a warrant is shielded by the discretionaryfunction exception according to our binding precedent in Mesa.

The second theory combats the claim by Agent Guerra that

his Garmin GPS led him to the wrong house on the morning of the

raid and instead posits that the wrong-house raid was attributable

to human error. We apply the two-part Gaubert test to this second

theory, endeavoring to faithfully apply Mesa and the plentitude of

other Eleventh Circuit discretionary-function exception cases. If

Agent Guerra input the wrong address into the Garmin or simply

misread his Garmin GPS’ screen, it is a much closer call whether

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this conduct involves “an element of judgment or choice.” Gaubert,

499 U.S. at 322 (internal quotation marks and citation omitted).

On one hand, we have extended Mesa’s reasoning to “the onsite decisions of the agents” during a search. See Mid-South Holding

Co., 225 F.3d at 1206. On the other hand, “[t]here are obviously discretionary acts performed by a Government agent that are within

the scope of his employment but not within the discretionary[-]

function exception[.]” Gaubert, 499 U.S. at 325 n.7. For example, if

an official “drove an automobile on a mission connected with his

official duties and negligently collided with another car, the exception would not apply.” Id. “Although driving requires the constant

exercise of discretion, the official’s decisions in exercising that discretion can hardly be said to be grounded in regulatory policy.” Id.

If the exercise of judgment had ended at Agent Guerra’s decision to use a GPS and his choice to stop at the first intersection in

the neighborhood, instead of the second, our inquiry might end

here. But we do not think our precedent allows for such simplicity.

There was no federal statute, regulation, or policy mandating a specific course of conduct for Agent Guerra to follow once he

arrived at the home. He had discretion to decide whether to order

one of the SWAT team members to check the street signs or the

mailbox. He had discretion to decide whether to take time to pull

geolocation data from his phone. And his conduct after his team

arrived at the wrong house involved an element of judgment and

choice.

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26 Opinion of the Court 23-10062

Such discretion is rooted, at least to some degree, in policy

considerations. As the SWAT addendum laid out, “SWAT teams

will need to achieve a near simultaneous start to ensure surprise is

achieved.” D.E. 83-6 at 26. The team here needed to comply with

a precise timeline. Covert execution of a warrant and protection of

the public involve policy considerations recognized in the discretionary-function exception context. See Mesa, 123 F.3d at 1438–39.

See also Sabow v. United States, 93 F.3d 1445, 1453 (9th Cir. 1996)

(“The investigation into [a Marine Corps Colonel’s] death involved

the types of social and political judgments that Congress meant to

shield from FTCA challenges. Investigations by federal law enforcement officials . . . clearly require investigative officers to consider relevant political and social circumstances in making decisions about the nature and scope of a criminal investigation.”);

Pooler v. United States, 787 F.2d 868, 871 (3d Cir. 1986) (“Congress

did not intend to provide for judicial review of the quality of investigative efforts.”), abrogated on other grounds by Millbrook v. United

States, 569 U.S. 50 (2013).

We therefore conclude that, under our precedent, the plaintiffs’ FTCA claims are “based upon the exercise or performance or

the failure to exercise or perform a discretionary function” by a federal government employee. See 28 U.S.C. § 2680(a). In the end, “the

power to waive the federal government’s immunity is Congress’[ ]

prerogative, not ours[.]” Dep’t of Agric. Rural Dev. Rural Hous. Serv.

v. Kirtz, 601 U.S. 42, 48 (2024). We, as a three-judge panel, cannot

contort or disregard our precedents in Shivers and in Mesa to

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provide Mr. Cliatt, Ms. Martin, or her son with recourse under the

FTCA.

III

In Martin II, the Supreme Court vacated our prior decision

in full. See 605 U.S. at 415. A vacatur means the prior decision has

no legal effect, see United States v. Sigma Int’l, Inc., 300 F.3d 1278,

1280 (11th Cir. 2002) (en banc), so we are free to revisit the qualified

immunity issue.

The government asks us to reinstate the holding of the prior

panel affirming the district court’s grant of qualified immunity to

Agent Guerra. The plaintiffs do not address the now-vacated ruling

on qualified immunity in their supplemental briefing. 7

Qualified immunity shields a government official sued in his

or her individual capacity “‘unless the law preexisting the [ ] official’s supposedly wrongful act was already established to such a

high degree that every objectively reasonable official standing in

the defendant’s place would be on notice that what the [ ] official

was doing would be clearly unlawful given the circumstances.’”

Underwood v. City of Bessemer, 11 F.4th 1317, 1328 (11th Cir. 2021)

(quoting Morton v. Kirkwood, 707 F.3d 1276, 1280 (11th Cir. 2013)

7 We directed the parties to address the FTCA issues in light of Martin II. Although we also allowed the parties to address any other issues they deemed

appropriate, we are not aware of any authority—and the government has not

cited any—for the proposition that an appellant must reassert each and every

argument made in his or her opening brief to avoid abandoning an issue on

which the Supreme Court did not grant certiorari.

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28 Opinion of the Court 23-10062

(citation and quotation marks omitted). “A police officer cannot

obtain qualified immunity unless he establishes that he was acting

within his discretionary authority.” Id. It is well-settled that effectuating an arrest warrant is a legitimate, authorized function of a

law enforcement officer’s job responsibilities. See Holloman ex rel.

Holloman v. Harland, 370 F.3d 1252, 1266 (11th Cir. 2004) (citing Lee

v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002)). The burden shifts

to the plaintiffs, who must show that the official violated a clearly

established constitutional right. See Underwood, 11 F.4th at 1328.

There are three ways to show that a constitutional right is

clearly established: (1) binding precedent with materially similar

facts; (2) a broad statement of principle enshrined in the Constitution, statute, or case law; or (3) conduct that so egregiously violates

the Constitution that no prior case law is required. See Gilmore v.

Ga. Dep’t of Corr., 144 F.4th 1246, 1258 (11th Cir. 2025) (en banc).

Critically, in addressing qualified immunity at summary judgment,

we view the facts in the light most favorable to the plaintiffs. See

Tolan v. Cotton, 572 U.S. 650, 655–56 (2014).

We have addressed the contours of qualified immunity in

the context of the “entry by law enforcement agents into the wrong

residence to execute a presumably valid search warrant for a

nearby house.” Hartsfield v. Lemacks, 50 F.3d 950, 951 (11th Cir.

1995), as amended (June 14, 1995). See also Duncan v. Barnes, 592 F.2d

1336, 1338 (5th Cir. 1979) (reversing the district court’s entry of

judgment as a matter of law for the officers who executed a warrant at the wrong residence based on the warrant’s incorrect

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description of the location). In Hartsfield, we said that it is “clearly

established law that, absent probable cause and exigent circumstances, a warrantless search of a residence violates the Fourth

Amendment, unless the officers engage in reasonable efforts to

avoid error.” 50 F.3d at 955. 8

In this case, as described above, the plaintiffs submit that

there is evidence in the record supporting two sets of facts. “On

one set of facts, [Agent] Guerra had firsthand familiarity with the

target home from a prior visit, FBI intelligence (including GPS

tracking of the target’s cell phone), maps showing the location of

the home, numerous photographs, and other pieces of intelligence

confirming the address of the target house.” D.E. 101 at 2. “On a

second version of facts, [Agent] Guerra did not conduct a site survey or attempt a day-of drive-by of the target residence at all,

8 We have applied Hartsfield in a number of unpublished decisions. See, e.g.,

White v. McLain, 648 F. App’x 838, 842–43 (11th Cir. 2016) (granting qualified

immunity to the official responsible for confirming that the correct house was

raided where he made more efforts than the official in Hartsfield before raiding

the house next door); Treat v. Lowe, 668 F. App’x 870, 871 (11th Cir. 2016)

(denying qualified immunity to an officer who executed a search warrant two

doors down from the correct house because he did not engage in “well-intentioned attempts” to locate the correct house) (internal quotation marks and

citation omitted); Norris v. Hicks, 855 F. App’x 515, 516 (11th Cir. 2021) (granting qualified immunity to the officers who initially approached the correct

home “but thought it was not the target of the warrant because it was an abandoned, dilapidated, uninhabitable ‘storage out-building’ and officers understood the target to be an occupied, ‘normal’ home” so they raided the home

next door (approximately 40 yards away)).

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instead going into a subdivision blind with predictable results.” Id.

at 3.

The plaintiffs say that Agent Guerra’s self-serving testimony

supports the first theory, and his “documented falsehoods” and the

absence of record evidence support the second. Id. Given that we

must view the evidence in the light most favorable to the plaintiffs

in assessing qualified immunity, see Tolan, 572 U.S. at 655–56, we

discuss these two scenarios.

On one side of the ledger, the plaintiffs rebut Agent Guerra’s

claimed drive-by in the hour before the warrant’s execution. Agent

Guerra says that he went to the correct home with Agent Michael

Lemoine on the morning of October 18. But there is cell phone

GPS data for Agent Lemoine, and it does not show that he went to

the target home or the plaintiffs’ home before the raid. Significantly, Agent Lemoine testified that it was his practice to take his

cell phone with him on site surveys. There is cell phone data for

Agent Guerra following the raid, but the data from the days leading

up to and the morning before the raid could not be located.

The plaintiffs also dispute Agent Guerra’s asserted facts concerning the alleged October 16 site survey. Agent Guerra initially

swore in a declaration that he conducted the site survey of the target residence with Agent Gregory Donovan. Because Agent Donovan’s GPS data showed that he did not visit the target residence

at any time in the days leading up to and including October 16,

Agent Guerra corrected his testimony to provide that he does not

recall who conducted the site visit with him. Again, we view the

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evidence—and the reasonable inferences—in the light most favorable to the plaintiffs.

It is also undisputed that Agent Guerra failed to upload the

alleged site survey photographs to the FBI’s evidence management

system electronically. And there is no metadata for Agent Guerra’s

photographs. The metadata for some of the other photographs

show that another agent took them during surveillance of Mr. Riley on October 3 when Agent Guerra was not present. It is undisputed that one of these photographs—rather than Agent Guerra’s

alleged photos—was used in the SWAT addendum. Agent

Guerra’s cell phone data is also missing for the day of the alleged

site survey.

We resolve the conflicts in the evidence, and the reasonable

inferences which can be drawn, in favor of the plaintiffs. For summary judgment purposes, then, Agent Guerra did not conduct a

drive-by beforehand. Nor did he carry out a site survey. See Tolan,

572 U.S. at 657 (reversing the grant of qualified immunity because

the circuit court “fail[ed] to credit evidence that contradicted some

of its key factual conclusions, . . . improperly weigh[ed] the evidence[,] and resolved disputed issues in favor of the moving party”)

(internal quotation marks omitted).

The district court largely disposed of the plaintiffs’ arguments on this point because (1) they did not request any specific

relief related to Agent Guerra’s alleged spoliation of evidence (the

disposal of the GPS) and (2) without it, the plaintiffs’ argument

rested on speculation. We disagree that the plaintiffs did not

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32 Opinion of the Court 23-10062

request sufficiently specific relief and therefore missed the boat on

the factual inferences to be drawn from Agent Guerra’s disposal of

the GPS. They requested a special interrogatory on the factual

question of Agent Guerra’s bad faith in anticipation of a post-trial

sanctions motion. But, more importantly, the district court’s belief

that it could not draw inferences in the plaintiffs’ favor at this stage

missed the mark.

“It is a well-established and long-standing principle of law

that a party’s intentional destruction of evidence relevant to proof

of an issue at trial can support an inference that the evidence would

have been unfavorable to the party responsible for its destruction.”

Kronisch v. United States, 150 F.3d 112, 126 (2d Cir. 1998) (citations

omitted). At trial, the jury can view the facts and draw inferences

in any party’s favor; that is why an instruction on spoliation is necessary. See 2 John Henry Wigmore, Evidence in Trials at Common

Law § 291 (James H. Chadbourn rev. 1979) (explaining that, for an

adverse inference based on the destruction of evidence, “the sole

question is whether the jury may legitimately draw a certain inference from a certain fact”). At summary judgment, however, the

district court already views the evidence in the light most favorable

to the non-movant. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

255 (1986).

The plaintiffs’ failure to specifically move for any spoliationrelated relief before Agent Guerra filed his motion for summary

judgment is not fatal to their Bivens claim. Nor did it give the district court license to disregard the circumstantial evidence of a

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constitutional violation. Although the court correctly noted that

the non-movant “must do more than raise ‘metaphysical doubt’ regarding the facts,” Martin v. United States, 631 F. Supp. 3d 1281,

1293–94 (N.D. Ga. 2022) (citing Garczynski v. Bradshaw, 573 F.3d

1158, 1165 (11th Cir. 2009)), this is not a case that rests on baseless

speculation. There are obviously inferences to be drawn from the

undisputed fact that Agent Guerra led his SWAT team to the

wrong house, returned to that house to provide his business card

and the name of the FBI’s Chief Division Counsel, photographed

the battered-in front door, and then threw his personal GPS

away—to this day, without explanation.

Moreover, there are disputed facts unrelated to the GPS and

cell phone records. The plaintiffs fault Agent Guerra for baselessly

attributing Mr. Cliatt’s car in the driveway to Mr. Riley and say that

Agent Guerra’s unfamiliarity with the vehicles associated with the

target residence shows that he did not conduct a site survey. During the morning drive-by, Agent Guerra asserted that he observed

a black Chevrolet Camaro in the driveway, which he later would

use as a reference point when locating the home. But the preparation materials clearly state that the subject vehicle associated with

Mr. Riley is a white Nissan Maxima. Finally, even if not dispositive,

the mere fact that Agent Guerra led the SWAT team to the wrong

home is circumstantial evidence that he had never been to the

property before.

There is, of course, some evidence on Agent Guerra’s side.

Agent Guerra reviewed the Operation Order and SWAT

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34 Opinion of the Court 23-10062

addendum. He attended an operational briefing, which included a

presentation showing the photograph of the correct home and Mr.

Riley. He selected a staging area at a church and communicated to

the SWAT team to meet there the morning of the raid. He created

a plan, including designating the “stack” formation (the order in

which SWAT team members position themselves outside the front

door) and deciding which SWAT team member would breach the

door, who would carry a shield, and who would go upstairs or

downstairs upon entry. Although this is a preparation effort, it is

not clear to us that the creation of the plan had anything to do with

ascertaining the correct address for the raid. With respect to the

now-vacated opinion in Martin I, the prior panel did not resolve

many of the evidentiary conflicts in the plaintiffs’ favor and credited

disputed evidence in Agent Guerra’s favor to conclude that he

complied with FBI standard practice. See Martin I, 2024 WL

1716235, at *6.

In addition to the evidentiary conflicts, there are also many

undisputed facts that warrant denial of qualified immunity at this

stage. Geographically, the two homes were three houses away

from one another, on the opposite side of Landau Lane, and separated by a cross street. The target home is at a four-way intersection while the plaintiffs’ home is at a three-way intersection. Neither home has the house number displayed on the house itself;

both have it on the mailbox. The street sign at the intersection

where the target home is located clearly marks the intersection of

Landau Lane and Cranford Drive—not Denville Trace, where the

plaintiffs’ home is located.

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There are also physical differences between the two residences. The target home is white or cream while the plaintiffs’

home is closer to brown or beige. The plaintiffs’ home has stonework around the façade of the door, but the target home does not.

The target home has a stairwell leading to the front door with large

shrubbery in front of it; the plaintiffs’ home has no shrubbery in

front of the stairwell. The target home’s windows are single wide

with stucco faux shutters, while the plaintiffs’ home has mostly

double or triple wide windows without faux shutters. Lastly, the

target home has dormers on the roof; the plaintiffs’ home does not.

We again view this evidence in the light most favorable to

the plaintiffs and cannot minimize the differences between the two

houses and the distance between them. Although the raid was carried out during the early morning hours, Agent Guerra testified

that some details of the house (for example, the color) were perceptible—whether from moonlight or artificial light. In sum, we

resolve all disputes and draw all inferences from the evidence regarding the dissimilarities in the houses and their configuration in

the neighborhood, the missing cell phone records, Agent Guerra’s

disposal of the GPS, and Agent Guerra’s ignorance of the subject

vehicle in the plaintiffs’ favor. Against this backdrop, we ask

whether the search of the plaintiffs’ home and their seizure was

unreasonable within the meaning of the Fourth Amendment.

In Hartsfield, the officer went to “the proper residence the

day before the search and had procured the search warrant based

upon his own observations[.]” 50 F.3d at 955. “Although [he] had

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36 Opinion of the Court 23-10062

the warrant in his possession, he did not check to make sure that

he was leading the other officers to the correct address, let alone

perform any precautionary measures” such as checking the house

number or verifying any notable exterior features of the house. Id.9

As in this case, “the houses were located on different parts

of the street, separated by at least one other residence, and [ ] their

appearances were distinguishable.” Id. In Hartsfield, the raid was in

daylight; here, it was at dawn. See id. That is a largely immaterial

difference when accounting for the evolution in technology from

1991, when the raid in Hartsfield occurred, to 2017, when this raid

occurred. See id. at 951. This evolution makes Agent Guerra’s conduct more egregious because he had access to his GPS, his cell

phone’s Google Maps, and text alerts providing a link to a Google

Map with Mr. Riley’s geolocation every fifteen minutes the morning of the raid.

Agent Guerra’s conduct was “simply not ‘consistent with a

reasonable effort to ascertain and identify the place intended to be

searched.’” Hartsfield, 50 F.3d at 955 (quoting Maryland v. Garrison,

480 U.S. 79, 88 (1987)). Viewing the evidence in the light most favorable to the plaintiffs, a reasonable jury could fairly conclude that

Agent Guerra failed to engage in reasonable efforts to avoid error,

and, therefore, violated the plaintiffs’ constitutional rights. Such

plain incompetence has clearly violated the Fourth Amendment

9 The prior panel opinion also did not meaningfully engage with the striking

similarities between this case and our decision in Hartsfield, 50 F.3d at 955. See

Martin I, 2024 WL 1716235, at *5.

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since at least 1995 when we decided this materially similar precedent. See id. See also Mullenix v. Luna, 577 U.S. 7, 12 (2015) (“Put

simply, qualified immunity protects ‘all but the plainly incompetent or those who knowingly violate the law.’”) (quoting Malley v.

Briggs, 475 U.S. 335, 341 (1986)). 10

We therefore reverse the grant of qualified immunity to

Agent Guerra.

IV

We affirm the district court’s dismissal of the FTCA claims

in Counts I–V based on the United States’ sovereign immunity. We

10 As one of the amici explains, the recognition of liability for improper entry

predates the founding. See Amicus Br. for Nat’l Police Accountability Project

at 4. The common-law foundation of knocking-and-announcing can be traced

back to the seventeenth century. See Wilson v. Arkansas, 514 U.S. 927, 931–36

(1995) (citing Semayne’s Case, 77 Eng. Rep. 194, 195 (K.B. 1603)). In Semayne’s

Case, the King’s Bench recognized that the sheriff “ought to signify the cause

of his coming” before entering a home to recover the debts of another (the

deceased joint tenant). See 77 Eng. Rep. at 195. And “[t]he propositions resolved in Semayne’s Case were by no means an innovation.” G. Robert Blakey,

The Rule of Announcement and Unlawful Entry: Miller v. United States and Ker v.

California, 112 U. Pa. L. Rev. 499, 501 (1964) (explaining the limits of forcible

entry into the home under Biblical law and early Anglo-Saxon law). Accordingly, at the Fourth Amendment’s framing, the common law imposed a serious obligation on the officer to ensure the “cause of his coming” to avoid “the

destruction or breaking of any house . . . by which great damage and inconvenience might ensue.” Semayne’s Case, 77 Eng. Rep. at 195–96.

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38 Opinion of the Court 23-10062

reverse the district court’s grant of qualified immunity to Agent

Guerra on Count VI.

AFFIRMED IN PART, REVERSED IN PART, AND

REMANDED.

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23-10062 JORDAN, J., Concurring 1

JORDAN, Circuit Judge, joined by JILL PRYOR, and KIDD, Circuit

Judges Concurring:

“All agree that the Federal Tort Claims Act permits some

suits for wrong-house raids.” Martin v. United States, 605 U.S. 395,

399 (2025). But, in this Circuit, the discretionary-function exception

is a mess, as interpreted bars all (or certainly most) FTCA suits

based on wrong-house raids. And we are not alone in the doctrinal

bog. See id. at 401 (noting that “several of our lower court colleagues report that they have struggled to discern what [the discretionary-function exception] requires of them”) (citing Xi v. Haugen,

68 F.4th 824, 842 (3d Cir. 2023) (Bibas, J., concurring)) (alterations

adopted). See also 5 American Law of Torts § 17:7 (2026) (“To say

that [the discretionary-function exception] has been difficult to apply is an understatement”); 14 Wright & Miller, Fed. Prac. & Proc.

Juris. § 3658.1 (4th ed. 2015 & Apr. 2026 update) (explaining that

the discretionary-function exception “is among the most criticized

features of the FTCA” in part “for having generated a ‘quagmire’

of interpretive confusion”) (quoting Baird v. United States, 653 F.2d

437, 440 (10th Cir. 1981)).

I join the court’s opinion in full and write separately to set

out my view of the discretionary-function exception under first

principles. I explain what I think is the correct understanding of the

exception, applying United States v. Gaubert, 499 U.S. 315 (1991), and

navigating our numerous decisions on the exception. I bear in mind

that “we should not take it upon ourselves to extend the [FTCA’s

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sovereign immunity] waiver beyond that which Congress intended.” United States v. Kubrick, 444 U.S. 111, 117–18 (1979) (citing

Soriano v. United States, 352 U.S. 270, 276 (1957); Indian Towing Co.

v. United States, 350 U.S. 61, 68–69 (1955)). “Neither, however,

should we assume the authority to narrow the waiver that Congress intended.” Id. at 118 (citing Indian Towing Co., 350 U.S. at 68–

69).

*****

The discretionary-function exception provides that the

United States’ sovereign immunity is not waived for “[a]ny

claim . . . based upon the exercise or performance or failure to exercise or perform a discretionary function or duty on the part of a

federal agency or an employee of the Government, whether or not

the discretion involved be abused.” 28 U.S.C. § 2680(a). But the

“FTCA does not define the term discretionary, and the exact

boundaries of the exception remain unclear, despite an immense

amount of precedent that has developed on the subject.” 14 Wright

& Miller, Fed. Prac. & Proc. Juris. § 3658.1 (4th ed. 2015 & Apr.

2026 update).

The Supreme Court has interpreted the exception to “cover[

] only acts that are discretionary in nature, acts that involve an element of judgment or choice[.]”Gaubert, 499 U.S. at 322 (internal

quotation marks and citation omitted). “The requirement of judgment or choice is not satisfied if a ‘federal statute, regulation, or

policy specifically prescribes a course of action for an employee to

follow,’ because ‘the employee has no rightful option but to adhere

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23-10062 JORDAN, J., Concurring 3

to the directive.’” Id. (quoting Berkovitz v. United States, 486 U.S.

531, 536 (1988)) (emphasis added). In this Circuit, we have taken

this language from Gaubert and made the presence of a prescriptive

statute, regulation, or policy an absolute requirement for a plaintiff’s claims to overcome the exception. See Shivers v. United States,

1 F.4th 924, 931 (11th Cir. 2021) (emphasis in original) (stating that

“the discretionary function exception applies unless a source of federal law ‘specifically prescribes’ a course of conduct”) (citing

Gaubert, 499 U.S. at 322). See also Autery v. United States, 992 F.2d

1523, 1529 (11th Cir. 1993) (“Only if a ‘federal statute, regulation, or

policy specifically prescribes a course of action,’ embodying a

‘“fixed or readily ascertainable standard,”’ will a government employee’s conduct not fall within the discretionary[-]function exception.”) (emphasis added); Zelaya v. United States, 781 F.3d 1315, 1330

(11th Cir. 2015) (stating that “unless a federal statute, regulation, or

policy specifically prescribes a course of action embodying a fixed

or readily ascertainable standard, it will be presumed that the particular act involved an element of judgment or choice”) (internal

quotation marks omitted and emphasis added).

But the term “if” is not synonymous with “unless” or “only

if.” See, e.g., Twp. of Tinicum v. U.S. Dep’t of Transp., 582 F.3d 482,

489 (3d Cir. 2009) (“The word ‘if’ describes a sufficient condition. . . . The phrase ‘only if’ describes a necessary condition, not a

sufficient condition.”) (first citing Alden Mgmt. Servs. v. Chao, 532

F.3d 578, 581 (7th Cir. 2008), and then citing California v. Hodari D.,

499 U.S. 621, 627–28 (1991)); Campuzano v. Bondi, 163 F.4th 186, 190

n.7 (5th Cir. 2025) (same). Compare Fed. Trade Comm’n v. Corpay,

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4 JORDAN, J., Concurring 23-10062

Inc., 164 F.4th 807, 840 (11th Cir. 2026) (explaining that the word

“unless” describes a “mandatory” condition); Burton’s Legal Thesaurus 583 (4th ed. 2007) (defining “unless” as “except, excepting,

however, precluding, save, without”). If the Supreme Court in

Gaubert wanted to make the presence of a prescriptive statute, regulation, or policy the only way to fail the first part of the test, I

believe it would have said so. See Rafferty v. Denny’s, Inc., 13 F.4th

1166, 1182 (11th Cir. 2021) (explaining that the Supreme Court

“say[s] what it means”).

As Justice Sotomayor explained in this very case, “there is

reason to question the Eleventh Circuit’s suggestion in the decision

below that the discretionary-function exception might apply unless

a source of federal law specifically prescribes a federal employee’s

course of conduct.” Martin, 605 U.S. at 418 (Sotomayor, J., concurring) (quoting Martin v. United States, No. 23-10062, 2024 WL

1716235, at *6 (11th Cir. Apr. 22, 2024) (quoting Shivers, 1 F.4th at

931)) (internal quotation marks omitted and alteration adopted).

“That approach, which even the Government [did] not defend before [the Supreme] Court, would run headlong into [the] Court’s

precedents.” Id.

Our Circuit’s approach is not grounded in the text of the exception. See § 2680(a) (restoring immunity for claims “based upon

the exercise or performance or the failure to exercise or perform a

discretionary function or duty on the part of a federal agency or an

employee of the Government, whether or not the discretion involved be abused”). It is also untethered from the circumstances

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presented in Gaubert, which involved the federal supervision and

regulation of a financial institution during the savings and loan crisis of the 1980s. See 499 at 317 n.1, 319–20. See United States v. Stanley, 483 U.S. 669, 680 (1987) (explaining that “no holding can be

broader than the facts before the court”).1

As I see it, Gaubert provided a mandatory statute, regulation,

or policy as one avenue to show that a government employee had

no room to exercise judgment or choice. See Gaubert, 499 U.S. at

322 (stating that “[t]he requirement of judgment or choice is not

satisfied if a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow”) (internal quotation marks omitted and emphasis added). See also John W. Bagby

& Gary L. Gittings, The Elusive Discretionary Function Exception from

Government Tort Liability: The Narrowing Scope of Federal Liability, 30

Am. Bus. L.J. 223, 242 (1993) (explaining that the Supreme Court

in Gaubert addressed whether the exception extends “to lower level

regulators’ decisions in their implementation of policies established

by statute, regulation, or agency policy statement” and decided

that the exception “protects actions of an authorized agency

1 As the court’s opinion here explains, the Supreme Court has addressed the

scope of the discretionary-function exception in cases involving complex regulatory regimes or statutory schemes. See Dalehite v. United States, 345 U.S. 15,

38–41 (1953) (Tennessee Valley Authority’s fertilizer program); Hatahley v.

United States, 351 U.S. 173, 181 (1956) (Department of the Interior’s treatment

of Navajo horses); United States v. S.A. Empresa de Viacao Aerea Rio Grandense

(Varig Airlines), 467 U.S. 797, 820 (1984) (Federal Aviation Administration’s airplane safety certification); Berkovitz v. United States, 486 U.S. 531, 547 (1988)

(Food and Drug Administration’s regulatory policy regarding polio vaccines). USCA11 Case: 23-10062 Document: 78-1 Date Filed: 10/07/2026 Page: 44 of 50

6 JORDAN, J., Concurring 23-10062

employee that are consistent with a regulation’s mandatory directives”).

Our approach has collapsed the Gaubert standard into an allencompassing test that has no cognizable or meaningful line between policy judgments and non-deliberate decisions. As I have

said before, this has caused our interpretation of the exception to

be “unnecessarily broad” and inconsistent with our earliest discretionary-function exception cases. See Foster Logging, Inc. v. United

States, 973 F.3d 1152, 1171 (11th Cir. 2020) (Jordan, J., dissenting).

*****

Government employees are not automatons. See Gaubert,

499 U.S. at 325 n.7 (“There are obviously discretionary acts performed by a Government agent that are within the scope of his

employment but not within the discretionary function exception

because these acts cannot be said to be based on the purposes that

the regulatory regime seeks to accomplish.”). See also Bagby & Gittings, The Elusive Discretionary Function Exception from Government

Tort Liability, 30 Am. Bus. L.J. at 229 (“Most human activity exhibits

varying levels of discretion interspersed with more routine or instinctive actions.”). Thus, as we explained in an early FTCA case,

“[m]ost conscious acts of any person whether he works for the government or not, involve choice.” Smith v. United States, 375 F.2d

243, 246 (5th Cir. 1967). “Unless government officials (at no matter

what echelon) make their choices by flipping coins, their acts involve discretion in making decisions.” Id.

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Here is how we put it six decades ago: “If the Tort Claims

Act is to have the corpuscular vitality to cover anything more than

automobile accidents in which government officials were driving,

the federal courts must reject an absolutist interpretation of

Dalehite[’s statement that “[w]here there is room for policy judgment and decision there is discretion[,]” 346 U.S. at 36,] and that

interpretation is rejected by Indian Towing and especially by Rayonier.” Smith, 375 F.2d at 246. See also J.H. Rutter Rex Mfg. Co. v.

United States, 515 F.2d 97, 99 (5th Cir. 1975) (“an absolutist interpretation of the discretionary function is improper”). Based on this

reading of Dalehite, we repeatedly reiterated in early FTCA cases

that “[i]t is not a sufficient defense for the government merely to

point out that some decisionmaking power was exercised by the

official whose act was questioned.” Smith, 375 F.2d at 246. See, e.g.,

J.H. Rutter Rex Mfg. Co., 515 F.2d at 99 (“It is not sufficient for the

government to demonstrate that some choice was involved in the

decision-making process. That showing could be made in almost

every case.”); Drake Towing Co. v. Meisner Marine Constr. Co., 765

F.2d 1060, 1064 (11th Cir. 1985) (“For the government to show

merely that some choice was involved in the decision-making process is insufficient to activate the discretionary function exception.”).

Our earlier cases correctly reflect that the first prong of

Gaubert must have some teeth even if the planning vs. operational

distinction does not control. See 499 U.S. at 325–26. In other words,

the clarification in Gaubert that the planning vs. operational dichotomy is not dispositive does not change that we are still bound by

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8 JORDAN, J., Concurring 23-10062

our prior decisions. And those decisions shield actions based on

conscious policy or plan development while permitting liability for

acts taken to execute or implement a plan that are not policy judgments. See, e.g., Payton v. United States, 679 F.2d 475, 482–83 (5th

Cir. Unit B 1982) (en banc) (concluding “that the decision of the

parole board to release a prisoner on parole and the determination

of the terms of parole are discretionary functions,” but “the decision of the prison medical board to examine allegedly insane prisoners is non-discretionary”); Pigott v. United States, 451 F.2d 574, 575

(5th Cir. 1971) (holding that “the kind of discretion exercised by the

government in this case, involving decisions merely as to the day

and hour of the [operation] and the amount of thrust . . . , is insufficient to insulate the defendant”).

As we explained while sitting en banc, “the fact that the negligence may have occurred in connection with a discretionary function does not make the negligent act a discretionary function.” Payton, 679 F.2d at 480 (quoting Aretz v. United States, 604 F.2d 417, 431

n.18 (5th Cir. 1979)). “Nor does the discretionary character of the

government’s initial undertakings govern whether a duty can arise

out of those undertakings.” Id. (alterations adopted). “Discretionary decision-making, then, is accompanied by nondiscretionary

acts of execution, whether termed operational, ministerial, or clerical.” Id. Accord Xi, 68 F.4th at 843 (Bibas, J., concurring) (positing

that the “ordinary legal meaning of the phrase ‘discretionary function’ when the FTCA was enacted” in 1946 described “a public officer’s immunity when sued for torts in his personal capacity” and

categorized “certain kinds of government activities as either

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23-10062 JORDAN, J., Concurring 9

‘ministerial’ or ‘discretionary’”) (quoting William L. Prosser, Handbook of the Law of Torts § 108, at 1075–79 (1941 ed.)).

In this case, for example, the site survey, the drive-by, the

Operation Order, and the SWAT Addendum should be separated

from the failures to check the street sign and the house number, or

otherwise verify the address on the GPS. See Smith, 375 F.2d at 246

(“It must be remembered that the question at hand here is the nature and quality of the discretion involved in the acts complained

of.”). Once the tortious conduct is defined, I think it is worth considering whether the prescriptive source of law should be defined

at a higher level. Why can’t the first prong be as simple as deciding

that the warrant and its legal force do not grant the SWAT team

any discretion as to where to execute it? Or, alternatively, why can’t

we say it is obviously the government’s policy to raid the correct

house? As the court’s opinion recognizes, Mesa answered this question regarding the “who” of the warrant. See 123 F.3d at 1439. To

give any meaning to the Mesa panel’s statement that its decision

was narrow, see id. at 1437 n.3, we must address the sweeping

breadth of our more recent interpretation of the Gaubert test.

The second prong of Gaubert fares no better in preventing

an unconscious action from coming within the exception. We do

not “inquire whether the employee actually weighed social, economic, and political policy considerations before acting.” Ochran v.

United States, 117 F.3d 495, 500 (11th Cir. 1997) (emphasis added).

In a case like this one, where we are unfortunately bound by Mesa,

we justify ex post facto Agent Guerra’s conduct because the

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decision not to check the street signs or the house number could be

grounded in policy concerns, and not because Agent Guerra actually made a reasoned decision not to verify the address for safety or

other reasons.

Importantly, the Supreme Court in Gaubert did not claim to

overrule its earlier cases, such as Dalehite, on which our early FTCA

cases were based. See 499 U.S. at 322–27. And we assume the Court

does not overrule precedent “sub silentio.” Shalala v. Ill. Council on

Long Term Care, 529 U.S. 1, 18 (2000). For me, Gaubert clarified that

the step in the decisionmaking process or the status of the decisionmaker do not control. See 499 U.S. at 325 (“A discretionary act

is one that involves choice or judgment; there is nothing in that

description that refers exclusively to policymaking or planning

functions. . . . Discretionary conduct is not confined to the policy

or planning level.”). See also Cranford v. United States, 466 F.3d 955,

959 (11th Cir. 2006) (declining to follow our cases that turned “expressly on the principle that ‘operational’ conduct falls outside the

discretionary function exception”) (emphasis added). Gaubert made

clear that there are not shortcuts in the test. A policy judgment requires deliberate decisionmaking in an area where the actor had

discretion to do so. See Gaubert, 499 U.S. at 322–23. See also

Berkovitz, 486 U.S. at 537. On a blank slate, the SWAT’s team negligent mistake—stopping too early in the neighborhood and failing

to verify the address in any way—was just that: a heedless mistake,

not a policy judgment concerning the safety, secrecy, or efficiency

of the operation.

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Therefore, in my view, there is line-drawing within the

Gaubert framework that would benefit from this Court’s en banc

review. How can it be that the conduct here—which is essentially

the equivalent of a government driver making a wrong turn onto

a one-way street—is defeated by the discretionary-function exception because there is no “mandatory regulation or policy” dictating

that a member of the SWAT team is required to check the street

sign or the house number on the mailbox? See Autery, 992 F.2d at

1526. Must a government agency memorialize such a rudimentary

requirement to raid the correct house? There must be a point between conscious decisionmaking and mistakenly raiding the wrong

house based on a GPS-related mistake that would require us to

reexamine the language of Shivers (and cases like it) and perhaps

revisit Mesa.

*****

As Justice Sotomayor explained in her concurrence in this

case, there remains an open question of whether the context of the

passage of the law enforcement proviso amendment to the FTCA

means that the discretionary-function exception should not be construed to cover wrong-house raids. See Martin, 605 U.S. at 420 (Sotomayor, J., concurring). That makes this case an exceptionally important vehicle to reexamine our discretionary-function exception

jurisprudence.

“When Congress amends legislation, courts must presume

it intends the change to have real and substantial effect.” Ross v.

Blake, 578 U.S. 632, 633 (2016) (internal quotation marks and

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citation omitted and alteration adopted). As the court’s opinion explains, Congress amended the FTCA in 1973 in direct response to

the Collinsville wrong-house raids. See S. Rep. No. 93-588 (1973).

Against the backdrop of the ambiguity of the discretionary function

exception, I would, at least, consider the familiar facts of the Collinsville raids and the raid here. See Martin, 605 U.S. at 419 (Sotomayor, J., concurring).

I hope that, at some point, we will convene en banc to reexamine our discretionary-function exception jurisprudence. This

case seems like a good vehicle in which to do so.