Curtrina Martin v. USA

USCA11 Case: 23-10062 Document: 78-1 Date Filed: 10/07/2026 Page: 1 of 50 FOR PUBLICATION In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 23-10062 ____________________ CURTRINA MARTIN, Individually and as Parent and Next friend of, G.W., a Minor, HILLIARD TOI CLIATT, Plaintiffs-Appellants, versus UNITED STATES OF AMERICA, LAWRENCE GUERRA, SIX UNKNOWN FBI AGENTS, Defendants-Appellees. ____________________ Appeal from the United States District Court for the Northern District of Georgia D.C. Docket No. 1:19-cv-04106-JPB ____________________ USCA11 Case: 23-10062 Document: 78-1 Date Filed: 10/07/2026 Page: 2 of 50 2 Opinion of the Court 23-10062 Before JORDAN, JILL PRYOR, and KIDD, Circuit Judges. PER CURIAM: “The United States, as sovereign, is immune from suit save as it consents to be sued[.]” United States v. Sherwood, 312 U.S. 584, 586 (1941). Through the Federal Tort Claims Act, Congress waived that immunity for certain torts committed by federal government officials and employees. See 28 U.S.C. §§ 1346(b), 2671 et seq. But, in so doing, Congress recognized that there are certain governmental functions that should not be “disrupted by FTCA lawsuits” and carved out 13 separate exceptions (one of which has a proviso). See Molzof v. United States, 502 U.S. 301, 312 (1992). This case, which arises out of a wrong-house raid, presents us with two of those exceptions—the discretionary-function excep- tion and the intentional-tort exception. See 28 U.S.C. §§ 2680(a), (h). We also address the grant of qualified immunity to the Federal Bu- reau of Investigation agent who was in charge of the raid. Following review of the record, and with the benefit of oral argument, we affirm the district court’s grant of summary judg- ment to the United States on the plaintiffs’ FTCA claims. We re- verse the grant of qualified immunity to the FBI agent. I This case is before us on remand from the United States Su- preme Court. In Martin v. United States, 605 U.S. 395 (2025) (Martin II), the Court expressly abrogated three of our prior cases, vacated our prior opinion in full, and remanded for further consideration USCA11 Case: 23-10062 Document: 78-1 Date Filed: 10/07/2026 Page: 3 of 50 23-10062 Opinion of the Court 3 in light of the change to our FTCA precedent. We begin with the facts and then pivot to the case’s procedural history. A In 2015, the FBI commenced Operation Red Tape to address violent gang activity in Georgia. On October 12, 2017, the Opera- tion culminated in a 30-defendant indictment. Arrest warrants, in- cluding one for gang member Joseph Riley, and search warrants, including one for Mr. Riley’s residence in southwest Atlanta, soon followed. The address of that residence was 3741 Landau Lane. Hilliard Cliatt, his then-fiancée Curtrina Martin, and her seven-year-old son G.W. were not among the defendants indicted. Yet, through no fault of their own, the Cliatt-Martins were caught in the crosshairs of Operation Red Tape. At approximately 5:00 am on October 18, 2017, an FBI SWAT team broke down the door of the Cliatt-Martin residence— located at 3756 Denville Trace—and immediately detonated a flash bang grenade. Mr. Cliatt and Ms. Martin cowered in a closet as the SWAT team—wearing full tactical gear, green ballistic helmets, protective headphones and lenses, and ballistic vests—stormed into their bedroom. Each member of the SWAT team carried a rifle and a holstered handgun. Soon after entering the bedroom, the SWAT team located Mr. Cliatt in the closet, dragged him onto the bedroom floor, and handcuffed him. G.W. was in his room across the hall, awake and terrified by the sounds of the raid. USCA11 Case: 23-10062 Document: 78-1 Date Filed: 10/07/2026 Page: 4 of 50 4 Opinion of the Court 23-10062 Amidst the chaos, the SWAT team leader, Agent Lawrence Guerra, noticed that Mr. Cliatt did not have the same face and neck tattoos that he had seen in the photographs of their target, Mr. Ri- ley. Agent Guerra asked Mr. Cliatt for his name and address, which he provided, and which did not match the name and address in the search and arrest warrants. Around the same time, a SWAT team member located a piece of mail with an address different from the warrants. After realizing their mistake, the SWAT team immedi- ately left the home, located Mr. Riley, and arrested him as he at- tempted to flee. Agent Guerra later returned to the Cliatt-Martin home, provided FBI contact information, and documented the damage to the front door caused by the forcible entry. Br. for Appellant at 5. See also D.E. 101-4 at 1. As shown above, the Cliatt-Martin home is three houses away from Mr. Riley’s residence—on a different street and with an intervening cross street between them. Agent Guerra’s excuse for USCA11 Case: 23-10062 Document: 78-1 Date Filed: 10/07/2026 Page: 5 of 50 23-10062 Opinion of the Court 5 going to the wrong home was that his personal Garmin-brand GPS unit directed him to the wrong home. The Cliatt-Martins vehe- mently dispute whether Agent Guerra conducted an adequate site survey or day-of drive-by in advance of the raid. Agent Guerra threw his personal Garmin GPS away shortly after the incident, and has not provided an explanation for doing so. B Since the wrong-house raid on October 18, 2017, this case has had a lengthy procedural history. In September of 2019, Mr. Cliatt, Ms. Martin, and G.W. filed this action. They brought six claims: (1) false arrest and false imprisonment against the United States under the FTCA (Count I); (2) assault and battery against the United States under the FTCA (Count II); (3) trespass and interfer- ence with private property against the United States under the FTCA (Count III); (4) negligent infliction of emotional distress and intentional infliction of emotional distress against the United States under the FTCA (Count IV); (5) negligence against the United States under the FTCA (Count V); and (6) illegal entry, detention, and false arrest in violation of the Fourth Amendment against Agent Guerra and other agents under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971) (Count VI). 1 1 Mr. Cliatt and Ms. Martin (with her son) filed two separate complaints, initi- ating two actions before they were consolidated. The difference between the two complaints is that Mr. Cliatt’s complaint added the interference with pri- vate property to Count III (in addition to trespass) and the intentional infliction USCA11 Case: 23-10062 Document: 78-1 Date Filed: 10/07/2026 Page: 6 of 50 6 Opinion of the Court 23-10062 On August 27, 2021, the government and Agent Guerra moved for summary judgment. The government argued that the district court lacked subject-matter jurisdiction over Counts III–V under the FTCA’s discretionary-function exception. It then as- serted that the plaintiffs’ remaining claims against the government (Counts I and II) failed under Georgia law. Agent Guerra main- tained that he was entitled to qualified immunity on Count VI be- cause he did not violate clearly established law. 2 On September 23, 2022, the district court granted the gov- ernment’s motion as to Counts III–V, ruling that the discretionary- function exception restored the government’s sovereign immun- ity. The court also concluded that Counts I and II fell within the discretionary-function exception but that—based on then-existing Eleventh Circuit precedent—the law enforcement proviso over- came that exception. Then, rejecting its arguments under Georgia law, the court decided that the government was not entitled to summary judgment as a matter of law. Additionally, the court granted Agent Guerra’s motion for summary judgment as to Count VI, concluding that qualified immunity shielded him from the plaintiffs’ Fourth Amendment claims. of emotional distress to Count IV (in addition to negligent infliction of emo- tional distress). 2 Agent Guerra previously moved to dismiss on this ground. The district court construed that motion as one for summary judgment (based on his attached affidavit) and denied it without prejudice. USCA11 Case: 23-10062 Document: 78-1 Date Filed: 10/07/2026 Page: 7 of 50 23-10062 Opinion of the Court 7 On November 21, 2022, the government moved for recon- sideration based on our intervening decision in Kordash v. United States, 51 F.4th 1289 (11th Cir. 2022), which solidified a Supremacy Clause defense to FTCA claims. The district court, applying Kor- dash, granted the government summary judgment on Counts I and II. The plaintiffs appealed. The government again argued that Georgia law barred the plaintiffs’ FTCA claims for false imprison- ment and assault and battery and, even if not, the Supremacy Clause defense applied. It then asserted that the discretionary-func- tion exception barred the plaintiffs’ remaining FTCA claims. Ap- plying Kordash, 51 F.4th at 1293, as well as a number of discretion- ary function cases, we affirmed. See Martin v. United States, No. 23- 10062, 2024 WL 1716235, at *6–*8 (11th Cir. Apr. 22, 2024) (Martin I). The plaintiffs filed a petition for writ of certiorari, and the Supreme Court granted the petition to answer the following two questions: (1) “[w]hether the Constitution’s Supremacy Clause bars claims under the Federal Tort Claims Act when the negligent or wrongful acts of federal employees have some nexus with fur- thering federal policy and can reasonably be characterized as com- plying with the full range of federal law[;]” and (2) “[w]hether the discretionary-function exception is categorically inapplicable to claims arising under the law enforcement proviso to the intentional torts exception.” Martin v. United States, 145 S. Ct. 1158 (2025). USCA11 Case: 23-10062 Document: 78-1 Date Filed: 10/07/2026 Page: 8 of 50 8 Opinion of the Court 23-10062 The Supreme Court first concluded that the law enforce- ment proviso, see 28 U.S.C. § 2680(h), only overcomes the FTCA’s intentional-tort exception, abrogating Nguyen v. United States, 556 F.3d 1244, 1260 (11th Cir. 2009). See Martin II, 605 U.S. at 403–08. The Court then ruled that there is not a Supremacy Clause defense to liability under the FTCA, abrogating Denson v. United States, 574 F.3d 1318, 1347 (11th Cir. 2009), and Kordash, 51 F.4th at 1293. See Martin II, 605 U.S. at 409–13. The Court continued: Where does all that leave the case before us? We can say this much: The plaintiffs’ intentional-tort claims survive their encounter with subsection (h) thanks to the law enforcement proviso, as the Eleventh Circuit recognized. But it remains for that court on remand to consider whether subsection (a)’s discretionary- function exception bars either the plaintiffs’ negli- gent- or intentional-tort claims. As we have ex- plained, the Eleventh Circuit must undertake that as- sessment without reference to its mistaken view that the law enforcement proviso applies to subsection (a). Id. at 413–14. “Should some or all of the plaintiffs’ claims survive the discretionary-function exception, the Eleventh Circuit must then ask whether, under Georgia state law, a ‘private individual under like circumstances’ would be liable for the acts and omis- sions the plaintiffs allege, subject to the defenses discussed in § 2674[.]” Id. at 414. So, here we are. USCA11 Case: 23-10062 Document: 78-1 Date Filed: 10/07/2026 Page: 9 of 50 23-10062 Opinion of the Court 9 II Whether the United States’ sovereign immunity is waived under one of the FTCA’s exceptions is a legal question we review de novo. See Alvarez v. United States, 862 F.3d 1297, 1301 (11th Cir. 2017). We also review “the district court’s grant of a motion for summary judgment de novo, applying the same legal standards used by the district court.” Means v. United States, 176 F.3d 1376, 1378 (11th Cir. 1999) (citation omitted). “Summary judgment is appro- priate when there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law.” Id. (quotation omitted). We “must consider the evidence in the light most favor- able to the nonmoving party.” Id. (quotation omitted). On remand from the Supreme Court, the plaintiffs ask us to “construe the [discretionary-function] exception from first princi- ples.” Supp. Br. for Appellants at 20. Specifically, they contend that we should examine the overlap (if any) between law enforcement officers’ intentional torts and federal employees’ discretionary functions on a blank slate and conclude that the discretionary-func- tion exception cannot be applied to intentional-tort claims arising from a wrong-house raid. They say that we have license to do so as a three-judge panel because the Supreme Court instructed us to engage in a “careful reexamination of this case in the first instance.” Martin II, 605 U.S. at 415. The government responds that all of the plaintiffs’ FTCA claims are barred by the discretionary-function exception (now that the Supreme Court has held that the law enforcement proviso does USCA11 Case: 23-10062 Document: 78-1 Date Filed: 10/07/2026 Page: 10 of 50 10 Opinion of the Court 23-10062 not overcome it). It also contends that the FTCA claims fail because there would be no liability under Georgia law. A The FTCA’s intentional-tort exception applies to “[a]ny claim arising out of assault, battery, false imprisonment, false ar- rest, malicious prosecution, abuse of process, libel, slander, misrep- resentation, deceit, or interference with contract rights[.]” 28 U.S.C. § 2680(h). But, through the law enforcement proviso, sov- ereign immunity is not restored for the “acts or omissions of inves- tigative or law enforcement officers of the United States Govern- ment” for claims arising out of “assault, battery, false imprison- ment, false arrest, abuse of process, or malicious prosecution.” Id. On remand, the government does not meaningfully contest that Count I for false arrest and false imprisonment and Count II for assault and battery against it fall under both the intentional-tort ex- ception and the law enforcement proviso.3 Below, the government never argued that Counts I and II were barred by the discretionary-function exception. This was, of course, against a different backdrop of now-abrogated Eleventh Circuit precedent. See Martin II, 605 U.S. at 403–13 (abrogating Ngu- yen, 556 F.3d at 1260, Denson, 574 F.3d at 1347, and Kordash, 51 F.4th at 1293). And we generally allow litigants to raise new issues “where there is an intervening decision of the Supreme Court on 3 As to Count I, the government argues that the plaintiffs “appear to concede that this claim may proceed only on a false imprisonment theory.” Supp. Br. for Appellees at 8 n.4. We find no such concession by the plaintiffs. USCA11 Case: 23-10062 Document: 78-1 Date Filed: 10/07/2026 Page: 11 of 50 23-10062 Opinion of the Court 11 an issue that overrules either a decision of that Court or a published decision of this Court that was on the books when the appellant’s opening brief was filed[.]” United States v. Durham, 795 F.3d 1329, 1331 (11th Cir. 2015) (en banc). We therefore take up all the FTCA claims under the discretionary-function exception—keeping in mind that the Supreme Court held in Martin II that the law enforce- ment proviso does not expressly overcome this exception. B The discretionary-function exception applies to [a]ny claim . . . based upon the exercise or perfor- mance or the failure to exercise or perform a discre- tionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused. 28 U.S.C. § 2680(a). 4 In United States v. Gaubert, 499 U.S. 315, 322–23 (1991), the Supreme Court set out a two-part test to determine whether the discretionary-function exception applies. First, we must look to the nature of the challenged conduct and decide whether the conduct “violated a mandatory regulation or policy that allowed no judg- ment or choice.” Autery v. United States, 992 F.2d 1523, 1526 (11th Cir. 1993). The discretionary-function exception will not apply “if a federal statute, regulation, or policy specifically prescribes a 4 Another provision, 28 U.S.C. § 2680(a), provides a due-care exception to the sovereign immunity waiver, which is not at issue here. See Chhetri v. United States, 823 F.3d 577, 582 (11th Cir. 2016). USCA11 Case: 23-10062 Document: 78-1 Date Filed: 10/07/2026 Page: 12 of 50 12 Opinion of the Court 23-10062 course of action for an employee to follow.” Gaubert, 499 U.S. at 322 (quotation omitted). See also Autery, 992 F.2d at 1529 (“Only if a ‘federal statute, regulation, or policy specifically prescribes a course of action,’ embodying a ‘“fixed or readily ascertainable standard,”’ will a government employee’s conduct not fall within the discretionary[-]function exception.”) (emphasis and internal ci- tation omitted). Second, if we conclude that no “statute, regula- tion, or policy specifically prescribes a course of action,” we must then consider whether the challenged conduct “is of the kind that the discretionary[-]function exception was designed to shield.” Gaubert, 499 U.S. at 322–23. The purpose of the exception is to “pre- vent judicial second-guessing of legislative and administrative deci- sions grounded in social, economic, and political policy through the medium of an action in tort.” Id. at 323 (internal quotation marks and citation omitted). The plaintiffs mount several attacks on the application of the discretionary-function exception to the conduct here. We begin with their categorical arguments and then take up their case-spe- cific arguments. 1 The plaintiffs maintain that the discretionary-function ex- ception does not shield constitutional violations because federal of- ficials lack discretion to violate the Constitution. They acknowledge that our decision in Shivers v. United States, 1 F.4th 924 (11th Cir. 2021), rejected this same argument and that the Supreme Court did not address the issue in this case. In fact, the Supreme USCA11 Case: 23-10062 Document: 78-1 Date Filed: 10/07/2026 Page: 13 of 50 23-10062 Opinion of the Court 13 Court stated that whether Shivers, 1 F.4th at 931 (and Martin I’s re- liance on it, 2024 WL 1716235, at *6), espoused a mistaken view of the discretionary-function exception was a question “well beyond” the two that it granted certiorari to address. See Martin II, 605 U.S. at 415. Nevertheless, the plaintiffs contend that the Supreme Court’s instruction to carefully reexamine this case in the first in- stance gives us an opportunity to reconsider Shivers. See id. See also id. at 418 (Sotomayor, J., concurring) (noting that Shivers’ “ap- proach,” suggesting that the discretionary-function exception ap- plies unless a source of federal law specifically prescribes the course of conduct “which even the Government does not defend before this Court, would run headlong into this Court’s precedents”). We reluctantly disagree. As a later panel, we are bound by a prior published decision like Shivers unless the “Supreme Court case actually abrogate[s] or directly conflict[s] with, as opposed to merely weaken[ing], the holding of the prior panel.” United States v. Kaley, 579 F.3d 1246, 1255 (11th Cir. 2009). We cannot, therefore, revisit Shivers’ holding that the discretionary-function exception immunizes unconstitutional conduct. See 1 F.4th at 929–35. 2 The plaintiffs contend that the discretionary-function excep- tion categorically does not immunize careless conduct. Although we have not expressly weighed in on the circuit split on this issue, the government says that Shivers essentially rejected this argument too. See Xi v. Haugen, 68 F.4th 824, 843 (3d Cir. 2023) (Bibas, J., USCA11 Case: 23-10062 Document: 78-1 Date Filed: 10/07/2026 Page: 14 of 50 14 Opinion of the Court 23-10062 concurring) (noting that “there is a split over whether the excep- tion applies when the challenged act was careless rather than a con- sidered exercise of discretion”). Compare Willis v. Boyd, 993 F.3d 545, 549 (8th Cir. 2021) (carelessness covered by exception), Lam v. United States, 979 F.3d 665, 682 (9th Cir. 2020) (same), and Ball v. United States, 967 F.3d 1072, 1077 (10th Cir. 2020) (same), with Coul- thurst v. United States, 214 F.3d 106, 111 (2d Cir. 2000) (carelessness outside exception), Rich v. United States, 811 F.3d 140, 147 (4th Cir. 2015) (same), and Palay v. United States, 349 F.3d 418, 432 (7th Cir. 2003) (same). Shivers stated that “there is nothing in the statutory language that limits application of this exception based on the degree of the abuse of discretion or the egregiousness of the employee’s perfor- mance.” 1 F.4th at 930 (internal quotation marks omitted). “Con- gress could have adopted language that carved out certain behavior from this exception—for example, grossly negligent behavior, in- tentional behavior, or behavior that rises to the level of a constitu- tional violation.” Id. “But Congress did not do so, and it is Congress that uniquely decides what should fall within the waiver of sover- eign immunity.” Id. See also Autery, 992 F.2d at 1528 (“[N]egligence is simply irrelevant to the discretionary function inquiry.”) (quot- ing Kennewick Irrigation Dist. v. United States, 880 F.2d 1018, 1029 (9th Cir. 1989)). Although we did not couch this holding in the same “care- lessness” terms, we do not think Shivers allows for a categorical carelessness exception to the discretionary-function exception. USCA11 Case: 23-10062 Document: 78-1 Date Filed: 10/07/2026 Page: 15 of 50 23-10062 Opinion of the Court 15 Shivers held that the level of wrongfulness of the federal employees’ conduct plays no role in our analysis. See 1 F.4th at 930. 3 We now reach Gaubert’s two-step test. Importantly, “the same governmental act may have both discretionary and nondis- cretionary aspects, and in these circumstances [we] must disaggre- gate conduct to determine which claims are cognizable and within the court’s jurisdiction and which are not.” 14 Wright & Miller, Fed. Prac. & Proc. Juris. § 3658.1 (4th ed. 2015 & Apr. 2026 Supp.) (citing Gaubert, 499 U.S. at 325–26). Accord Swafford v. United States, 839 F.3d 1365, 1370 (11th Cir. 2016) (“In evaluating whether the discretionary-function exception applies, we first must determine exactly what conduct is at issue.”) (internal quotations marks and citation omitted). We begin with the proverbial elephant in the room: Mesa v. United States, 123 F.3d 1435 (11th Cir. 1997). In Mesa, DEA agents obtained an arrest warrant for a Pedro Pablo Mesa but arrested the wrong Pedro Pablo Mesa. See id. at 1437. The Mesas alleged that the DEA agents were negligent and reckless in their investigation of the whereabouts of the Pedro Pablo Mesa named in the arrest warrant. See id. We held that “the investigation of the whereabouts and identity of the subject of an arrest warrant prior to service of USCA11 Case: 23-10062 Document: 78-1 Date Filed: 10/07/2026 Page: 16 of 50 16 Opinion of the Court 23-10062 the arrest warrant is conduct that falls within the discretionary[-] function exception.” Id. at 1438. 5 Under the first part of the Gaubert test, we concluded that “the decisions regarding how to locate and identify the subject of an arrest warrant and regarding whether the person apprehended is in fact the person named in the warrant are discretionary in na- ture and involve an element of judgment or choice.” Id. On the second part of the test, we reasoned that “the decision regarding how to locate and identify the subject of an arrest warrant is funda- mentally rooted in policy considerations, and that judicial second- guessing of this decision thus is not appropriate.” Id. We considered that the agents might weigh secrecy, urgency, public safety, and the need to preserve evidence. See id. Additionally, once inside the wrong residence, “the agents may consider the possible repercussions of erroneously deciding that the person they apprehended is not in fact the person named in the warrant and letting that person go free.” Id. at 1438–39. We ruled, therefore, that “the discretionary[-]function exception ap- plies to the process of determining whether the person appre- hended is actually the person named in the arrest warrant.” Id. at 1439. See also Mid-South Holding Co. v. United States, 225 F.3d 1201, 1206 (11th Cir. 2000) (holding that “the on-site decisions of the 5 The other claims, which were not at issue in the appeal, included negligence in the procurement of a warrant, assault, battery, false imprisonment, inten- tional infliction of emotional distress, invasion of privacy, and a Bivens claim. See Mesa, 123 F.3d at 1437 n.2. USCA11 Case: 23-10062 Document: 78-1 Date Filed: 10/07/2026 Page: 17 of 50 23-10062 Opinion of the Court 17 agents of the Customs Service concerning the manner in which to search [a] vessel also fall within the scope of the discretionary[- ]function exception” under the Suits in Admiralty Act). The plaintiffs nonetheless insist that the actions underlying a wrong-house raid are not based on a discretionary function. They offer a “ground-up construction” of the exception, showing that the discretionary-function exception applies only when an em- ployee exercises discretion to fulfill the ends of an administrative agency based on the discretionary-function exception’s text, the discretionary-function exception Supreme Court precedent, and the legislative history of the law enforcement proviso. See Supp. Reply Br. of Appellants at 1. It is true that the discretionary-function exception’s text ref- erences administrative agencies. See 28 U.S.C. § 2680(a). But we cannot ignore that it includes claims based on “a discretionary func- tion or duty on the part of a federal agency or an employee of the Government[.]” Id. (emphasis added). We recognize that the cases in which the Supreme Court an- alyzed the discretionary-function exception—leading up to Gaubert—involved regulatory policy. These cases include Dalehite v. United States, 346 U.S. 15, 38–41 (1953) (Tennessee Valley Author- ity’s fertilizer production program covered by exception); Indian Towing Co. v. United States, 350 U.S. 61, 69 (1955) (Coast Guard’s up- keep of lighthouse was not discretionary even if the decision to build the lighthouse is discretionary); Hatahley v. United States, 351 U.S. 173, 181 (1956) (the destruction of Navajo horses by federal USCA11 Case: 23-10062 Document: 78-1 Date Filed: 10/07/2026 Page: 18 of 50 18 Opinion of the Court 23-10062 agents was not discretionary where they failed to comply with a federal regulation); United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 820 (1984) (the Federal Avi- ation Administration’s decision to certify airplanes without first in- specting them “falls squarely” within the exception); Berkovitz v. United States, 486 U.S. 531, 547 (1988) (the formulation of policy by the Food and Drug Administration to regulate polio vaccine lots was covered by the exception but the decision to release to the pub- lic the particular lot of vaccine in violation of those standards was not covered); and Gaubert, 499 U.S. at 332 (decisions through which federal savings and loan associations supervised thrift institutions were covered by the exception). But cf. Berkovitz, 486 U.S. at 538 (re- jecting the argument that “the exception precludes liability for any and all acts arising out of the regulatory programs of federal agen- cies” in part because “the language of the exception . . . protects ‘discretionary’ functions, rather than ‘regulatory’ functions”). 6 The same, however, cannot be said of our own cases. In- deed, we have applied the discretionary-function exception to low- level decisions involving some modicum of discretion. See, e.g., Mesa, 123 F.3d at 1438 (steps taken by DEA agents to identify the 6 One caveat related to Indian Towing, 350 U.S. at 64–65: Although the govern- ment conceded that the discretionary-function exception would not cover the negligent upkeep of the lighthouse and instead argued that the language of Dalehite, 346 U.S. at 28, precluded liability, courts and scholars alike generally agree that Indian Towing “directly bear[s] upon construction of the exception.” Harold J. Krent, Preserving Discretion Without Sacrificing Deterrence: Federal Gov- ernment Liability in Tort, 38 UCLA L. Rev. 871, 879 (1991). USCA11 Case: 23-10062 Document: 78-1 Date Filed: 10/07/2026 Page: 19 of 50 23-10062 Opinion of the Court 19 subject of an arrest warrant were covered by the exception); Hughes v. United States, 110 F.3d 765, 768 (11th Cir. 1997) (decisions related to security at a U.S. Post Office involve discretionary functions); O’Ferrell v. United States, 253 F.3d 1257, 1266–67 (11th Cir. 2001) (de- cisions by law enforcement officials throughout an investigation, including alleged misrepresentations implicating the plaintiffs in the subject bombings, threatening them, illegally searching their property, and holding their property, are not cognizable under the FTCA). The plaintiffs also point to the legislative history of the law enforcement proviso. As Justice Sotomayor explained in her con- currence in Martin II, in April of 1973, 15 state and federal officers wrongfully ransacked the home of Herbert and Evelyn Giglotto in Collinsville, Illinois, and held them at gunpoint before realizing their mistake. See Martin II, 605 U.S. at 419 (Sotomayor, J., concur- ring) (citation omitted). “The officers [then] moved on to the home of Donald Askew, where they terrorized yet another innocent cou- ple before confessing they had acted on a ‘bad tip.’” Id. (citation omitted). After learning of such egregious raids, the Senate Commit- tee on Government Operations proposed an amendment to the FTCA—adding the law enforcement proviso to § 2680(h). See id. at 419–20. In the Committee’s view, this amendment would make it so that “innocent individuals who are subjected to raids of the type conducted in Collinsville, Illinois, will have a cause of action USCA11 Case: 23-10062 Document: 78-1 Date Filed: 10/07/2026 Page: 20 of 50 20 Opinion of the Court 23-10062 against the individual Federal agents and the Federal Govern- ment.” S. Rep. No. 93–588, at 3 (1973). If this sounds familiar, it is exactly the plaintiffs’ argument. Why would the Senate Committee propose this amendment if the United States’ immunity for wrong-house raids would (or could) continue through the discretionary-function exception? Yet we are mindful that “legislative history cannot be used to contradict un- ambiguous statutory text or to read an ambiguity into a statute which is otherwise clear on its face.” Garcia v. Vanguard Car Rental USA, Inc., 540 F.3d 1242, 1247 (11th Cir. 2008). To hold that this legislative history creates ambiguity in the discretionary-function exception would be in some tension with Shivers, where we cau- tioned against atextual exceptions to the discretionary-function ex- ception and said that “the language Congress chose in § 2680(a) is unqualified” and Congress did not categorically “carve[ ] out cer- tain behavior” from the exception. See 1 F.4th at 930. Moreover, in this very case, the Supreme Court held that the law enforcement proviso only overrides the intentional-tort excep- tion, and not the discretionary-function exception. See Martin II, 605 U.S. at 407. The Court noted that “[the plaintiffs] point[ed] to a committee report discussing how Congress enacted the proviso in response to two wrong-house raids much like their own.” Id. at 408. But it rejected the argument: And, the plaintiffs argue, unless the proviso is given broad effect across § 2680, it will not fulfill Con- gress’[ ] purpose of ensuring that wrong-house-raid cases may proceed. But this argument stumbles, USCA11 Case: 23-10062 Document: 78-1 Date Filed: 10/07/2026 Page: 21 of 50 23-10062 Opinion of the Court 21 too. . . . Members of Congress may well have had more than one purpose in mind when adding the pro- viso to the FTCA. Perhaps some thought amending subsection (h) [the intentional-tort exception] alone and leaving others untouched would strike a suitable balance between immunity and liability. Perhaps oth- ers concluded there was no need to apply the proviso more broadly because no other exception would shield the government from liability for wrong-house raids. Whatever the reason, no amount of guesswork about the purposes behind legislation can displace what the law’s terms clearly direct. Id. (internal citations omitted). We therefore cannot say that the discretionary-function ex- ception does not apply to law enforcement proviso claims arising out of wrong-house raids. Though it may be true that Supreme Court caselaw signals a connection between a “discretionary func- tion” and the regulatory policy of an administrative agency, our cases—rightly or wrongly—have largely extended the discretion- ary-function exception to the execution of warrants by law enforce- ment officers. See Mesa, 123 F.3d at 1436–37. The plaintiffs further argue that Mesa was abrogated by Utah v. Strieff, 579 U.S. 232, 240 (2016).