Feds May Be Liable for Pentagon|Brawl Between Cop and Guard

(CN) - A security guard who says a Pentagon police officer assaulted him while they worked together can sue the U.S. government, the 4th Circuit ruled.

Nicholas Ignacio, a contract security officer at the Pentagon, claimed to have gotten into a disagreement with Pentagon police officer Kevin Lane on Dec. 2, 2009. After disagreeing over the caliber of an M-16 round, the pair allegedly made a wager.

On Dec. 15, 2009, the dispute apparently escalated with Lane allegedly threatening to "hurt [Ignacio] after work" and punching him in the face.

After a superior suspended Lane for 10 days, Ignacio filed a federal complaint.

A federal judge in Alexandria, Va., granted the government summary judgment, finding that Lane's alleged conduct did not occur within the scope of his employment or within the course of a law enforcement activity.

On appeal, Ignacio argued that the government waived immunity under 28 U.S.C., section 2680(h). This so-called law-enforcement proviso waives immunity whenever a law-enforcement officer acting within the scope of his employment commits an intentional tort, he claimed.

As such, the claim does not require the officer to have committed the tort in the course of an investigative or law enforcement activity.

A three-judge revered on March 16. While other federal courts have ruled in favor of the government in previous cases, the 4th Circuit said those institutions have failed to first identify any ambiguity in the statute that would allow them to make that interpretation.

"Where, as here, the text of the statute is unambiguous, we should not engage in any analysis of legislative history to find ambiguity," Judge Henry Franklin Floyd wrote.

"Because the District Court determined that issues of fact exist regarding whether Lane acted within the scope of his employment under Virginia law, and because the parties did not raise the scope of employment issue in their briefs, we decline to discuss it here," he added.

In a concurring opinion, Judge Albert Diaz criticized the inconsistency of finding immunity waived for a law enforcement officer, but preserving it when any other federal employee commits similar acts.

"Although such a result can be criticized as inconsistent and unreasonable, I cannot say that it is so absurd as to allow us to alter the meaning - as other courts have - of an otherwise unambiguous statute," Diaz wrote.

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