Supreme Court revives lawsuit over mistaken FBI raid
In a unanimous decision, the justices instead sent the case back to a lower court to take another crack at deciding whether the lawsuit can move forward.
Federal agents smashed through Trina Martin's front door in 2017 while executing a search warrant at the wrong address, believing it was the home of an alleged violent gang member. Martin and her boyfriend at the time were startled out of bed with a flash-bang grenade and guns raised, as her 7-year-old son screamed from another room.
She sued the government in 2019, accusing the agents of assault and battery, false arrest and other violations, under the Federal Tort Claims Act (FTCA), which waives the government's sovereign immunity and lets people injured by certain actions of federal officers bring some claims for damages against it under state law.
But a federal judge in Atlanta dismissed the suit and the 11th U.S. Circuit Court of Appeals upheld that decision. The justices now say the lower courts erred.
'Where does all that leave the case before us?' Justice Neil Gorsuch asked in the court's opinion.
'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 discretionary-function exception bars either the plaintiffs' negligent or intentional-tort claims,' he wrote.
Patrick Jaicomo, Martin's lawyer, argued before the justices that 'innocent victims' of the government's mistakes must have an available legal remedy. The FTCA was amended in 1974 after a pair of wrong-house raids made headlines, which he suggested makes clear that Martin's lawsuit should be allowed to proceed.
Exceptions to the law make it more complicated.
Frederick Liu, who argued for the government, said that an exception to the FTCA preventing plaintiffs from suing the government for damages that arise out of an officer's discretionary acts applies to the case. He also suggested that entering the wrong home was a 'reasonable mistake' and an example of the 'policy trade-offs' officers make when placed in risky situations.
In the court's opinion, Gorsuch acknowledged that lower courts have taken different views on the discretionary-function exception and that 'important questions' must be weighed regarding under which circumstances they apply.
'But those questions lie well beyond the two we granted certiorari to address,' Gorsuch wrote. 'And before addressing them, we would benefit from the Eleventh Circuit's careful reexamination of this case in the first instance.
'It is work enough for the day to answer the questions we took this case to resolve, clear away the two faulty assumptions on which that court has relied in the past and redirect it to the proper inquiry,' he said.
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And the demonstration of understanding, the articulation of the other side's point of view — purely that, no agreement at all — that's the application of empathy. How did the word 'tactical' get put in front of it? Because you want to appeal to men? That's exactly it. Empathy is thought of as: 'Oh, I feel bad for you. I'm on your side.' This soft, spongy thing. Back when Hillary Clinton ran for president, she said, I'm going to use empathy in international negotiations, and she gets barbecued for it as if it's weakness. It's not. So we threw the word 'tactical' in front of it. The same way you can't teach a Navy SEAL 'yoga breathing'; you've got to tell them it's 'tactical breathing.' How much does it matter if the person across the negotiating table has empathy for you? What if they're disrespectful or dismissive? Is that insurmountable? No, it's not. Let's talk about empathy as a skill, not an emotional characteristic. If you start there, then it frees you up to use it as a skill with anybody on earth. Because the act of trying to articulate how the other side is feeling calms you down. It kicks in a certain amount of reason in you. It broadens your perspective. Now, what's the percentage of people that will never go there? Hostage negotiators are successful roughly 93 percent of the time. You've got to accept the fact that 7 percent of the time, you're never going to make a deal with the other person. Earlier this year, Elon Musk said that empathy is 'the fundamental weakness of Western civilization.' He called it a 'bug' that can be manipulated. Do you give any credence to that kind of thinking? The first thing is: What's your definition of empathy? If it's being able to articulate the other side's point of view without agreeing with it or disagreeing with it, it's not a weakness. It's a highly evolved application of emotional-intelligence analysis. Now, is it manipulation? Similar to a knife, in one person's hand it's a murder weapon, and in another person's hand it's a scalpel and saves the life. So it's an incredibly powerful tool that relies upon the user. In 'Never Split the Difference,' you write about how life revolves around negotiation. In the last 10 years or so, the idea that negotiation is pervasive has been amplified because of one person: President Trump. He's constantly publicly engaging in negotiation, using this giant megaphone of social media. From my vantage point, his strategies look like they're all about threats and asserting leverage and trying to limit the other side's choices. But when you see Trump negotiating, what's your assessment? It's hard to get a solid gauge on him. Social media posts are limited and lack context, and everybody in the media either loves him or hates him, which means the interpretation is going to be skewed. What I'm struck by is the reaction of people that talk to him in person and the outcomes. [Former] prime minister of Canada, Justin Trudeau — he and Trump have thrown rocks at each other for years. Trudeau goes down to Mar-a-Lago, they meet in person; suddenly, they've got a deal. Zelensky, leader of Ukraine: that rock fight in the Oval Office, and then they're talking to each other at the pope's funeral. They've got a deal. So he appears publicly to be a blunt object, and then in person he seems to make deals. What's going on when he meets in person? I think there are emotional-intelligence skills that don't translate through the media, which he appears to have a gut instinct and knack for. It's probably an oversimplification to say that Trudeau and Trump sat down and made 'a deal.' But what effect does perception about the other person have in negotiation? The example that comes to mind is this term, 'TACO': Trump Always Chickens Out. If someone Trump is negotiating with has an awareness that he's bothered by that term, and if Trump also knows there's a perception that he chickens out, will it have an effect on the negotiation? First of all, why are people using that term? Because they know it's getting under his skin. So they're not on his side. He seems to be very aware of those sorts of things. If you hit somebody two or three times or something gets under your skin, eventually they're going to go: 'Ah, you're trying that on me again. It used to work. Sorry, not anymore. You taught me a lesson. I learned it.' Do you think Trump is a good negotiator? You know him a little, right? In passing. The crisis hotline I volunteered on was part of his family's church. I became very good friends with the minister, Arthur Caliandro, and Arthur was friends with President Trump. I asked Arthur to ask President Trump if we could use his apartment at Trump Tower for a fund-raiser for the crisis hotline, and they graciously let us use the apartment, and he graciously showed up and was an amazing host. He didn't have to give us an apartment, and he didn't have to show up. That was my awareness of him. So your original question was: Is he good as a negotiator? Yeah. I am blown away at the magic he's working in the Middle East, taking chances that no other American president would have ever stepped into. Starting with the Abraham Accords that were done under his guidance in his first term. Then he turns around, recognizes the president of Syria, calls for sanctions to be removed. He's operating extremely effectively in the Middle East in a way that no other president has. Does the Trump administration demonstrate empathy? I think he has a highly evolved understanding of how other people see things. What makes you say that? The thing with Iran recently, when we decided to add to the ordnance being dropped on the nuclear sites. The reporting was that Israel was thinking about trying to take out the Iranian leader and that Trump was against that. Now, my view is that's smart for a number of reasons. First of all, if you agree to take out the head of a country, you're declaring there's open season and fair is fair, which means they're free to come after you. To me, there's a sense of empathy there. Not necessarily agreeing, not being on their side, but if empathy is understanding how somebody sees it, I think he has a highly evolved sense of it. Do you think he has a highly evolved sense of empathy when it comes to understanding how other people 'see it' on immigration? Yeah, and then I think he's making a calculation based on what he needs to move forward. I don't think he is oblivious to how people see things, and to lack empathy is to be oblivious. Now, what decisions that causes you to make is a whole separate issue. I need to stick with empathy and Trump and immigration. Help me understand how the way ICE functions is the result of a remotely empathetic understanding of other people. Yeah, I don't know. I'm not on the ground with those guys. I don't know what kind of orders are being given. Do you want a system where the guy who's in charge tells you to do one thing and you say, 'No, I am not doing it'? Then the system breaks down. If you think the thing is wrong, you probably should say, 'I'm not doing it.' Right? There are really tough questions about that as an individual. I'm seeing it from a distance. I'm not in a position to be able to offer an informed opinion on it, and yeah, I'm dodging your question. Fair enough. I'm sure you must work with people all the time who come to you because they're afraid of negotiation. My hunch is that a lot of the fear of negotiation is related to a fear of conflict. Yeah, in general terms, two out of three people are afraid of conflict. One of them loves it. I hate those people. They're tough, right? They beat you up, call you names and then say, 'Let's go have a drink.' And you're like: 'What? You just called me names! You want to have a drink with me? You've got to be kidding.' Most people don't like conflict. Some people are afraid of it. Some people just see it as inefficient, it's a waste of time. As soon as they begin to see that we can engage in negotiations and it's not a conflict, and we can make it collaborative — I'm going to brag, but there's a point to it. The book globally sold five million copies and sells well in every country that it's in. What that tells me is there's a global appetite to collaborate. People don't want to fight. They would prefer to collaborate. They're just not sure how to get there. One of my best friends, an entrepreneur who runs his own company, said that he can tell when he's in a negotiation with someone who has also read 'Never Split the Difference.' What advice do you have for someone who has entered into a negotiation and understands that both sides are playing the same game? So first of all, it's not if it's going to happen, it's when. The book sold millions of copies. OK, OK. How many books did I sell again? Could you remind me? [Laughs.] My gut instinct right away is: What's it being used for? Are you trying to collaborate with me? Or are you trying to cheat me? I'm going to be able to smell your intent early on. Are you using the skills to demonstrate understanding to get to an outcome? I've got no problem with that. Everybody on my team uses this stuff on me. I encourage them to do so. So far we've talked about your ideas and about your work, but I don't feel like I have a firm handle on Chris Voss. Hold on. Are you going to make me cry? I hope so. Do you want to cry? I'm a very emotional guy. I probably don't look that way, but deep down inside it's soft and gooey. My sense of people who are focused on how to effectively manage interpersonal communication or who develop systems for getting along with other people is that those interests don't develop in a vacuum. Maybe they have to do with a desire for control? I'm not sure control. I like solutions. I suppose I would have been attracted to the idea of control in my younger days. The first time I came across the phrase in a negotiation — 'the secret to gaining the upper hand in a negotiation is giving the other side the illusion of control' — I went, Oh, all right. So that resonates with me. And me being an assertive — I think assertives like to have control. They want to steer things. So that may be a vulnerability of mine, wanting control. Possibly. What's a negotiation that you lost in your life — not your work — that stands out? Getting divorced. I told my son just a couple of years ago: There is no question I could have been a better man. Simultaneously, that doesn't mean it would have changed things. As we look back over our lives, that's a critical issue: Could I have done it better, and would it have changed the outcome? Those aren't the same thing. I suppose the negotiation overall for my marriage — I was unaware of the impact of being direct and honest and harsh and could have been a far better human being, a far better man. Would that have changed things? I don't know. Earlier, you brought up that hostage negotiators are successful roughly 93 percent of the time and unsuccessful roughly 7 percent. When were you part of the 7 percent? The first time things went really bad was working in the Philippines, the Martin Burnham-Guillermo Sobero case. Sobero was murdered by Abu Sayyaf early on. A lot of Filipinos died. Two out of three of the Americans that were taken were ultimately killed. That was a big wake-up call to get better and that sometimes it's not going to work out. Then there was a string of kidnappings Al Qaeda did in the 2004 time frame. They were killing everybody they would get their hands on. They wanted to make it look like they were negotiating when they weren't. It was kidnapping for murder. So when you're working on a negotiation and a hostage gets killed, how do you move on from that? It seems to me there would be a pretty strong impulse to walk away from the work. There is, and that's the critical issue between the people that want to hang in there and get better and those that are defeated by failure. A lot of people are defeated by failure. Understandably. Understandably. I never blamed anybody that was involved to want to bow out and go do something else. When Martin Burnham was killed — that was the first hostage I ever lost — I thought that was the worst moment of my life. Until: I remember sitting in the audience for another hostage negotiator's presentation, probably about four years later. He talked about the trauma of this infant getting killed, and he said, 'I don't know why I keep talking about this, giving a presentation.' He says, 'Because it's something bad that happened to me on a winter's day.' I remember thinking: Happened to you? That wasn't your child. That wasn't your brother. That wasn't your son. I remember thinking: This is exactly as self-centered as I've been. Yeah, it was bad for you. It was worse for others. Stop feeling sorry for yourself. I want to take things in a different direction. In 'Never Split the Difference,' you're somewhat critical of the idea of compromise. What's wrong with compromise? Well, compromise is guaranteed lose-lose. There's no way around that. That's not just a matter of perspective? Why couldn't a lose-lose compromise just as easily be understood as a win-win? [Pause.] Wow, OK. Why couldn't it just as easily be understood as a win-win? Yeah, why is it necessarily lose-lose? Well, compromise is: I believe I have an outcome in mind, and you believe you have an outcome in mind. We're not sure which is right, so I'm going to water down mine, you're going to water down yours. It's a guarantee of mediocrity. It's being consigned to being a C student for the rest of your life. Now, I suppose that's superior to being an F student, but we were not built to be C students for the rest of our lives. Do you see what we're engaged in as a negotiation? Probably, yeah. I think we each are seeking to uncover some kind of truth that we can share through this conversation. We're trying to uncover something that's worth people listening to and maybe taking away and using it to make their lives better. So yeah, it's a negotiation. That's the outcome I think we're both after. And did you achieve it? I don't know. I think there's a pretty good chance we've said something together that's going to matter to somebody. Even if we only impacted one life, it was a worthy outcome. This interview has been edited and condensed from two conversations. Listen to and follow 'The Interview' on Apple Podcasts, Spotify, YouTube, iHeartRadio, Amazon Music or the New York Times Audio app. Director of photography (video): Aaron Katter
