One of the most common mantras you hear about the federal judiciary is that its judges should not make laws—that is, legislate from the bench—but should interpret and apply the law as it is written. A new case that may come before the Supreme Court would serve as an especially stark reminder of that.

A bipartisan group of members of Congress, including Sens. Ron Paul (R-Ky.), Ron Wyden (D-Ore.) and Cynthia Lummis (R-Wyo.), along with Reps. Thomas Massie (R-Ky.), Nikema Williams (D–Ga.), Harriet Hageman (R–Wyo.) and Dan Bishop (R–NC) — are urging the high court to consider the case, which centers around a family whose home was wrongfully searched by the FBI in the middle of the night and then denied the right to sue for damages.

But the reason the family was denied was particularly perverse, the congressmen wrote in a recent one short to the high court, arguing that the US Court of Appeals for the 11th Circuit overturned the relevant law when it blocked Curtrina Martin, plaintiff, by summons.

Early one morning in 2017, Martin and her then-fiancé, Hilliard Toi Cliatt, were awakened by the FBI detonating a flash grenade in their home and tearing their door off its hinges. The agents then went to their bedroom and found the couple hiding in the closet, where they retreated in fear; one officer dragged Cliatt outside and handcuffed him, while another pointed his gun and yelled at Martin, who says he fell onto a stand in the rapidly unfolding chaos. Her 7-year-old son was in his room and she says her mind went to a dark place.

“I don’t know if there’s a right word to use” to capture the fear Martin felt said me this summer

The FBI couldn’t find who they came for, because the suspect didn’t live there and had no connection to Martin or Cliatt. When Martin sued, the 11th Circuit not only granted immunity to Lawrence Guerra, the leader of the SWAT raid, but the justices also said her claims could not proceed under the Federal Tort Claims Act (FTCA), the law that allows people to bring various state torts against the federal government.

Very ironically, however, the FTCA was revised in the 1970s with an enforcement provision that greenlights lawsuits against the federal government for intentional torts committed by federal law enforcement. The inspiration for this law, the congressmen write, were two botched home raids in April 1973 on families in Collinsville, Illinois.

Those raids gained national attention just over 50 years ago. On the evening in question, federal officers searched the home of Herbert and Evelyn Giglotto; about 30 minutes later, different agents searched the home of Donald and Virginia Askew. Neither house was an actual target of the federal government.

“Mr. and Mrs. Giglotto today testified under oath that they were handcuffed by screaming agents, thrown onto their bed, verbally abused in a stream of obscenities and repeatedly threatened with death while an agent held a gun to their Mr. Giglotto’s head. he wrote The New York Timesreporting on testimony before the Senate in May 1973. “Much of their apartment was ransacked and damaged.”

Charles Percy, then a Republican senator from Illinois, chaired the hearing. “You can rest easy,” he said, appropriately Times“that I will find out who ordered this investigation.” He will continue to support the enforcement provision of the FTCA.

The similarities between Martin’s experience and that of Giglotto and Askew are hard to ignore, as the congressmen write in their brief to the Supreme Court.

“The plain text of the (law enforcement) clause provides — and was specifically enacted to guarantee — that victims of raids on the wrong homes by federal agents, such as the Collinsville families, can seek reparations from the United States in the raids to the wrong houses,” they write. “However, the 11th Circuit’s decision invalidates the enforcement provision in precisely this circumstance.”

The debate over law enforcement accountability in the US has been a tortured one. Qualified immunity—the legal doctrine that shields state and local government actors from federal civil lawsuits if their alleged wrongdoing has not been “clearly established” in prior case law—was created by the Supreme Court. Despite some movement in 2020 and 2021, Congress has didn’t fix that from a legislative point of view. Many casualty of alleged government abuse I am like this forcibly executed FROM finding solace.

But in Martin’s case, apparently, Congress he did provides an enforceable legislative solution—and the 11th Circuit struck it down. “This asymmetry is intolerable,” the congressmen wrote, “and runs counter to Congress’s deliberate decision 50 years ago to accept responsibility and provide compensation to those injured by the wrongdoing of federal law enforcement agents.”

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