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Doe Parents No. 1 v. State11/27/2002
e specifically, she claimed that the Army, which knew that Private Heard was dangerous because he had been convicted of manslaughter by a German court while assigned to an Army base in Germany in 1977, "negligently and carelessly failed [(1)] to exert a reasonably sufficient control over" him, (2) "to warn other persons that he was at large," and (3) "to . . . remove from active military duty." Id. at 54, 58.
In a decision in which Justice Powell took no part, four justices of the United States Supreme Court believed it "clear that respondent's claim arises out of the battery committed by Private Heard." Id. at 54-55. According to the Shearer plurality, " o semantical recasting of events can alter the fact that the battery was the immediate cause of Private Shearer's death and, consequently, the basis of respondent's claim." Id. at 55. The plurality noted that Shearer's mother could not "avoid the reach of [28 USC] § 2580(h) by framing her complaint in terms of negligent failure to prevent the assault and battery," reasoning that 28 USC § 2580 "does not merely bar claims for assault or battery; in sweeping language it excludes any claim arising out of assault or battery." Id. (emphases in original). Accordingly, the Shearer plurality held that "this provision . . . cover claims . . . that sound in negligence but stem from a battery committed by a [federal g]overnment employee." Id. Thus, in the Shearer plurality's view, "the express words of the statute bar respondent's claim against the [federal g]overnment," id. (citation and internal quotation signals omitted), because "it is inescapable that the phrase 'arising out of assault battery' is broad enough to encompass claims sounding in negligence," id. at 57.
The plaintiffs, however, observe that a majority of the United States Supreme Court apparently has retreated from theShearer plurality's draconian view of the FTCA's intentional tort exception, noting that, subsequently in Sheridan, the Court acknowledged that, "in at least some situations[,] the fact that an injury was directly caused by an assault or battery will not preclude liability against the [federal g]overnment for negligently allowing the assault to occur." 487 U.S. at 398-99. The salient facts before the Sheridan Court were as follows:
After finishing his shift as a naval medical aide at the hospital, Carr consumed a large quantity of wine, rum, and other alcoholic beverages. He then packed some of his belongings, including a rifle and ammunition, into a uniform bag and left his quarters. Some time later, three naval corpsmen found him lying face down in a drunken stupor on the concrete floor of a hospital building. They attempted to take him to the emergency room, but he broke away, grabbing the bag and revealing the barrel of the rifle. At the sight of the rifle, the corpsmen fled. They neither took further action to subdue Carr, nor alerted the appropriate authorities that he was heavily intoxicated and brandishing a weapon. Later that evening, Carr fired the shots that caused physical injury to one of the petitioners and property damage to their car. 487 U.S. at 395.
In suing the federal government under the FTCA, the plaintiffs contended that "the general rule" -- i.e., that the federal " overnment is not liable for the intentional torts of its employees" --"was inapplicable because they were relying, not on the fact that Carr was a [federal g]overnment employee when he assaulted them, but rather on the negligence of other [federal g]overnment employees who failed to prevent his use of the rifle." Id.
Upon the foregoing facts, a majority of the United States Court of Appeals for the Fourth Circuit had held that the plaintiffs' cla
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