Judge: Feds Don’t Have to Pay for Wrecked Ferrari

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According to this report, the federal government will not have to pay for the Ferrari F50 that one of its agents wrecked in 2009. See "Insurer Sues FBI for Crashing Ferrari," Lowering the Bar (Mar. 3, 2011). The joke then, which I'm going to recycle now, was that in this case "FBI" could also stand for "Ferris Bueller Imitators," because the insurer alleged that an agent and a federal prosecutor were out for a joyride in the $750,000 automobile, which the feds had "detained" during an investigation into its apparent theft from a dealership.

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Although now that I think about it further, the guys in "Ferris Bueller's Day Off" at least brought the car back undamaged. So the scene above depicts two gentlemen who were actually more responsible with someone else's property than these two federal officers.

Originally, the feds refused even to explain how the car had been wrecked, and it took a FOIA request to get documents admitting that "the crash happened" during a "short [and still unexplained] ride" in the detained vehicle by an FBI agent and an assistant U.S. Attorney. The insurer sued when the feds still would not pay.

Turns out they apparently had a reason for taking that position: federal law grants immunity to the government for any damage to property in the custody of law enforcement. The judge's opinion wasn't available on PACER for some reason (conspiracy!), but it appears that this has to do with the Federal Tort Claims Act. (DISCLAIMER: this is based on a quick search, so don't rely on this if you are about to loan your Ferrari to a federal agent.)

The government generally has sovereign immunity, but the FTCA waives that immunity for some torts committed by federal employees. 28 U.S.C. § 1346. There is an exemption, though, for claims that have to do with "the detention [of property] "by any officer of customs or excise or any other law enforcement officer." 28 U.S.C. § 2680. There was a major circuit split over whether "any other law enforcement officer" was limited to the customs and tax areas, but in 2008 the Supreme Court held 5-4 that it isn't. "Any" does mean "any," but Congress could have just written "any law enforcement officer" – hence the split.

The opinion is interesting, at least if you are the kind of person who thinks statutory interpretation is interesting. There is a discussion of the use of commas, the history of the statute, and various rules of construction (always fascinating). Also, here's Justice Breyer in dissent, on the importance of context:

When I call out to my wife, "There isn't any butter." I do not mean "There isn't any butter in town." The context makes clear to her that I am talking about the contents of our refrigerator.

But apparently the Thomases have never run out of butter.

Anyway, it appears that this opinion is the reason that an insurance company is out $750,000 for a Ferrari that federal officers crashed during a joyride. Can we get a "Ferris Bueller exception" to this law? If not, I'd hang onto the keys if I were you.