On June 2, 2010, the U.S. Court of Appeals for the Fifth Circuit sitting en banc in Castro v. United States held that the discretionary function exception to the Federal Torts Claims Act (FTCA) does not subject the United States to liability when a government employee, acting within his discretion, commits a constitutional violation, even if that violation is coupled with a state tort claim. The dissent asserted that such constitutional violations should not be understood to be within the discretion of a government employee to commit. This Comment argues that the majority approach is correct, as it is the most consistent with Supreme Court precedent and the purposes of the FTCA.
Brian Shea, The Parent Trap: Constitutional Violations and the Federal Tort Claims Act's Discretionary Function Exception, 52 B.C.L. Rev. E. Supp. 57 (2011), https://lawdigitalcommons.bc.edu/bclr/vol52/iss6/6