Reply #42: A comparison of the Israeli Act with the US Law [View All]

[Coastie for Truth]

(Federal Tort Claims Act, 42 USC 1983, Eleventh Amendment, Scheuer v. Rhodes) indicates to me that the US and Israeli Laws are not materially different for the narrow factual issues contemplated.

You can only understand this provision if you understand “Sovereign Immunity” See Sovereign immunity or crown immunity is a type of immunity that, in common law jurisdictions traces its origins from early English law. Generally speaking it is the doctrine that the sovereign or government cannot commit a legal wrong and is immune from civil suit or criminal prosecution. In many cases, the government has waived this immunity to allow for suits; in some cases, an individual, such as an attorney general, may technically appear as defendant on the government's behalf.

In the United States, the federal government has sovereign immunity and may not be sued unless it has waived its immunity, as it has to a limited extent mainly through the Federal Tort Claims Act, which waives the immunity if a tortious act of a federal employee causes damage, and the Tucker Act, which waives the immunity over contractual claims arising out of contracts to which the federal government is a party.

The federal government and nearly every state have passed tort claims acts allowing them to be sued for the negligence, but not intentional wrongs, of government employees. The common-law tort doctrine of respondeat superior makes employers generally responsible for the torts of their employees. In the absence of this waiver of sovereign immunity, injured parties would generally have been left without an effective remedy.

The is a statute enacted by the United States Congress in 1946 which permits private parties to sue the United States in a federal court for most torts committed by persons acting on behalf of the U.S. Liability under the FTCA is limited to "circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. 1346(b). The law also exempts a number of intentional torts, although it exposes federal law enforcement officers to greater liability to torts such as assault, battery, and false imprisonment.
Because the U.S. government has absolute power to define the jurisdiction of its courts, and could withhold any jurisdiction to hear cases against the U.S., the FTCA constitutes a limited waiver of sovereign immunity.

This is the basic “Waiver” of “Sovereign Immunity” by the United States

Title 28, Sec. 2674. Liability of United States

The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages.

If, however, in any case wherein death was caused, the law of the place where the act or omission complained of occurred provides, or has been construed to provide, for damages only punitive in nature, the United States shall be liable for actual or compensatory damages, measured by the pecuniary injuries resulting from such death to the persons respectively, for whose benefit the action was brought, in lieu thereof.

With respect to any claim under this chapter, the United States shall be entitled to assert any defense based upon judicial or legislative immunity which otherwise would have been available to the employee of the United States whose act or omission gave rise to the claim, as well as any other defenses to which the United States is entitled.

and

Title 42, Section 1983. Civil action for deprivation of rights

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

Of course, you have to realize, Section 1983 is really a “end run” around the 11th Amendment, i.e.,

Eleventh Amendment

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

and the Federal Tort Claims Act also has some severe limitations. The ones relevant to this analysis are enumerated in

Title 28, United States Code, Section 2680
The provisions of this chapter and section 1346(b) of this title shall not apply to--

(h) Any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights:

Provided, That, with regard to acts or omissions of investigative or law enforcement officers of the United States Government, the provisions of this chapter and section 1346(b) of this title shall apply to any claim arising, on or after the date of the enactment of this proviso, out of assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution. For the purpose of this subsection, ``investigative or law enforcement officer'' means any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law.

(j) Any claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war.

(k) Any claim arising in a foreign country.

You have cited the July 27, 2005 Act, and I will accept your citation with some redacting

The amended law narrows the eligibility of Palestinians to submit claims for compensation as a result of illegal actions carried out by Israeli forces, including acts of negligence. As outlined in Article 5B(a), the first exclusion relates to claims filed by specific groups of individuals:

Notwithstanding any other provision of law, the State shall not be subject to liability under the law of torts for damage sustained by any person included in paragraphs (1), (2) or (3), with the exception of damage caused in the types of claims or to the types of claimants set forth in the First Annex.

(1) A citizen of an enemy state, unless he is legally in Israel;

(2) An activist or member of a terrorist organization;

(3) Anyone who incurred damage while acting as an agent for or on behalf of a citizen of an enemy state, or an activist or member of a terrorist organisation.

In addition to limiting which claimants are eligible to file for compensation, it also restricts claims coming from certain areas. Article 5C states that claims regarding incidents which took place in a declared conflict zone (an area outside Israeli territory which has been defined as such by the Minister of Defence) and in which Israeli forces acted or were present in the context of a conflict, are also prohibited:

Notwithstanding any other provision of law, the State shall not be subject to liability under the law of torts for damage sustained in a conflict zone due to an act performed by the security forces, with the exception of damage caused in the types of claims or to the types of claimants set forth in the Second Annex.

The bolded, underlined provisions, while not identical in haec verba address substantially the same issue – with substantially the same result.

Turning now to the issue was a very narrow issue, did the Eleventh Amendment act as an absolute bar. The court has a very thorough discussion of “sovereign immunity” but remanded the case foran evidentiary hearing.