On Tuesday, the Supreme Court heard oral arguments in Martin v. United States.
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00:00I guess, Mr. Liu, the question is, how does that really differ from Colesville?
00:03I mean, the problem that I think is sort of what is happening in your analysis
00:08is that you say that the Colesville conduct does not fall within the discretionary function exception,
00:16which seems to me to be a concession that even if we agree with you
00:22that these aren't in two separate categories, law enforcement and discretionary function,
00:27we still have to figure out how broad the discretionary function exception is,
00:33which is the question you say we're not allowed to answer.
00:35The conduct in Colesville flunks the first step of the Gobbert two-part test.
00:40Is that the discretionary function test?
00:42Yes.
00:43All right.
00:43Well, so then we are having to assess the scope of the discretionary function in this context.
00:50I don't think so.
00:51I don't see how you can say we have separated that out of the question presented,
00:54we can't look at it, and you're still answering these questions in this way.
00:58No, because I think this case comes to the court on the assumption,
01:04as the courts below found at 17 to 18a and at 58a,
01:09that the conduct here did satisfy Gobbert's two-part test.
01:12Now, the only out that petitioners have left then is to say that the proviso nevertheless removes those claims
01:19from the scope of A.
01:21That's what I took to be the threshold statutory question that this court granted cert to decide.
01:26If I may just address one point that my friend...
01:29I'm sorry, counsel.
01:30You're doing exactly what the other side is doing.
01:33You are begging the question, which is how far does this discretionary exception go?
01:41The other side wants an absolute rule that all intentional torts are not covered.
01:47You want the opposite, which is if there's any discretion in the activity,
01:55then no negligences or intentional actions are covered.
01:59No, I don't...
02:00The two of you are going into separate corners.
02:02I'm not asking for an absolute rule.
02:04I'm asking for the court to just stick with it to test in Gobbert.
02:08Yes, because you've got a great decision below, but is that fair?
02:12Sometimes that test will result in the United States being exposed to liability.
02:18Sometimes it won't.
02:20It's not an absolute test.
02:21If I may just address my friend's suggestion that the proviso did nothing when Congress enacted it,
02:27we don't view that to be the case.
02:29Before the proviso was enacted, officers like Guerra had two layers of protection from liability.
02:37They had the discretionary function exception, and then they had an extra special layer of protection provided by subsection H,
02:45which gave the United States blanket immunity for any claim based on a particular type of tort.
02:51What the proviso did was remove that special layer of protection, but it left in place...
02:57That is so ridiculous.
02:59Congress is looking at the Collinsville raid and providing a remedy to people who have been wrongfully raided,
03:09and you're now saying, no, they really didn't want to protect them fully.
03:17They were just going to take them out of that exception, but leave in the discretionary exception.
03:25I gave you discretion in Collinsville.
03:27The officers are permitted to break into a home if they think an emergency existed.
03:33That's why those officers did that.
03:36They may have been wrong about the emergency existing.
03:40They may have been wrong about the warrant law.
03:43But under your test, it's their discretion to arrest when they think there's an emergency.
03:51No.
03:52What we understand the proviso to do is to remove that blanket special layer of protection in H.
03:59That requires the U.S. in these types of cases to battle it out under the discretionary function exception.
04:05And that's quite significant because there's a large set of cases that are going to flunk this court's two-part test in Galbert,
04:12chief among them the raids in Collinsville.
04:15And so by removing the proviso...
04:17The flunk...
04:17That's right.
04:19Flunk it.
04:19All right.
04:20So by removing the proviso, it exposes...
04:23It requires the United States to hash it out under the discretionary function exception.
04:29As I say, there are plenty of cases that are going to fall outside that discretionary function exception.