Kristine Bunch v. United States
880 F.3d 938
7th Cir.2018Background
- Kristine Bunch was convicted in Indiana (1996) of murdering her three-year-old son based principally on ATF chemist William Kinard’s forensic report and testimony; no eyewitness, motive, or direct evidence of accelerant purchases existed.
- Kinard had drafted a report finding no accelerants in critical locations but later submitted a final report affirming accelerants after communication with state investigators; the draft report was not disclosed to defense.
- Bunch’s post-conviction litigation uncovered the draft report; the Indiana Court of Appeals reversed her conviction for a Brady violation and on advances in fire science; Indiana declined to retry her.
- Bunch sued the United States under the Federal Tort Claims Act (FTCA) for malicious prosecution and intentional infliction of emotional distress based on Kinard’s conduct; suit consolidated with a § 1983 action against state investigators.
- The district court granted summary judgment for the United States, ruling the FTCA’s intentional-tort exception barred suit and that the investigative/law-enforcement officer proviso did not apply; the Seventh Circuit reversed and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FTCA intentional-tort exception (28 U.S.C. § 2680(h)) bars Bunch’s FTCA claims | Kinard’s acts occurred within scope of employment but he was an "investigative or law-enforcement officer" empowered to execute searches/seize evidence, so the proviso preserves waiver | Kinard was not so empowered; intentional-tort exception therefore preserves sovereign immunity | Reversed: factual record insufficient to conclude Kinard lacked the requisite authority; summary judgment premature |
| Which party bears burden to show an FTCA exception applies | Bunch need only make a prima facie FTCA case; government must prove an exception applies | United States argued plaintiff must negate exceptions | Court holds government bears burden to prove exception as an affirmative defense |
| Whether ATF regulations/statutes demonstrate Kinard lacked authority to "execute searches" or "seize evidence" | Point to Kinard’s role identifying evidence and participating in investigations analogous to executing searches | Government relied on other statutes (e.g., 26 U.S.C. § 7608) and asserted Kinard was not an ATF special agent; argued he lacked search/seizure authority | Court finds regulations and record submissions incomplete; plausible that 27 C.F.R. § 55.11 and related delegation could have empowered Kinard; factual questions preclude summary judgment |
| Whether summary judgment was appropriate given record evidence | Bunch: existing evidence (draft report, role of chemists, ATF materials) raises genuine disputes about authority and participation in searches | Gov: evidence shows Kinard was not an officer empowered to search/seize/arrest and thus exception bars suit | Court: material factual disputes and government’s failure to carry its burden require remand for further proceedings |
Key Cases Cited
- Millbrook v. United States, 569 U.S. 50 (2013) (FTCA waiver preserved for torts by officers empowered to search, seize, or arrest)
- Dolan v. U.S. Postal Serv., 546 U.S. 481 (2006) (caution against unduly narrow construction of FTCA waivers)
- Smith v. United States, 507 U.S. 197 (1993) (interpretive guidance on FTCA waivers)
- Kosak v. United States, 465 U.S. 848 (1984) (warnings against overextending FTCA exceptions)
- Lustig v. United States, 338 U.S. 74 (1949) (search is a functional, not merely physical, act; participation can constitute a federal search)
- Keller v. United States, 771 F.3d 1021 (7th Cir. 2014) (government bears burden to prove FTCA discretionary-function exception; incomplete regulatory record precluded summary judgment)
- Parrott v. United States, 536 F.3d 629 (7th Cir. 2008) (burden allocation on FTCA exceptions)
- Shearer v. United States, 473 U.S. 52 (1985) (analyzing interplay of malicious prosecution and related FTCA claims)
- S.R.P. ex rel. Abunabba v. United States, 676 F.3d 329 (3d Cir. 2012) (plaintiff need not disprove every FTCA exception; government better positioned to prove defenses)