After reading a tweet a few minutes ago I began to wonder if federal officers and breaking windows in downtown Portland, Oregon and if so, are they legally liable to those businesses? The tweet in question read:
"Dear Downtown Portland businesses. If your window broke and you find tiny black rubber balls in the glass, it was broken by the Fed's stinger grenades, and you now have recourse to obtain compensation for the property damage. Take pictures" - Luciux Riker (https://twitter.com/Luciuxness/status/1370477061836582914)
I was quick to respond that the United States does not appear to have waived sovereign immunity for cases involving property damaged by their officers in the course of their official duties under the section of the Federal Tort Claims Act (FTCA) applicable to law enforcement 28 U.S.C. 2680(h). I thought this warranted some more looking into and upon further review believe that our conclusion was correct. Although the FTCA (28 U.S.C. 1346) does read in part "for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." Most people would read that and think that the feds are liable when their officers damage property, but they are also not aware of restrictions found elsewhere in the United States Code. That law is also subject to 28 U.S.C. 2680(h) which limits what the United States can be sued for when the employees in question are law enforcement officers. When the acts of law enforcement officers give rise to a tort then only the acts specifically mentioned in 28 U.S.C. 2680(h) expose the federal government to tort liability. See 28 U.S.C. 2680:
The provisions of this chapter and section 1346(b) of this title shall not apply to...
(h)Any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights: Provided, That, with regard to acts or omissions of investigative or law enforcement officers of the United States Government, the provisions of this chapter and section 1346(b) of this title shall apply to any claim arising, on or after the date of the enactment of this proviso, out of assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution. For the purpose of this subsection, investigative or law enforcement officer means any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law.
28 U.S.C. 2680 essentially exempts the United States for liability for property damage caused by the "wrongful act or omission of any employee" when that employee is a law enforcement officer unless the claim arises out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights. As you can see, damaging property is not on that list, so you cannot sue the federal government for property damaged by federal law enforcement officers. I have experience successfully suing federal law enforcement officers under this section while acting as my own lawyer, so I am extremely familiar with it. So much so that I consider myself to an experienced attorney at hobby as someone with years of experience practicing law in my leisure time.
The only possibly exception could be if you could also prove that the officer's misconduct constituted an assault under the reasonable apprehension or attempted battery standards and that in the course of that assault property was damaged. The burden for proving assault by a federal officer is high because you must prove that the officer intended to inflict bodily harm or at least fear of such harm for a maliciously and sadistically for the purpose of causing harm, so basically you must prove that excessive force was used, that such force constituted an assault, and that during the course of that assault your property was damaged. For instance, if you could prove that an officer's conduct met the high standard for an assault under the FTCA and the only reason it did not result in a battery was that the projectile missed the intended person and damaged property belonging to that person, someone might be able to succeed in a suit against the United States if they were the person being fired at and the property damaged was theirs. The same is true if the officer threw a stinger grenade at someone for no legitimate purpose just to scare them, they in fact scared them, and their property were damaged. That would only work in the case of protests in downtown Portland if a business owner were standing peacefully outside their establishment, an officer wrongfully shot at them, and their business was damaged. A person cannot sue anyone for assault when the person assaulted was someone else because they lack standing. This means that finding the window of your business broken and rubber balls in the glass does not give you recourse to obtain compensation for property damage from the feds.
Are stinger grenades capable of breaking glass? Unfortunately I could not find any online resources capable of answering that question. It is barely even discussed, but depending on how thick the glass is some windows could likely be easily broken by the rubber pellets from a stinger grenade. I would however be shocked to find a downtown business with windows weak enough to be broken by a rubber ball from such a grenade. Such grenades are used downtown so often that I'm sure the news would have covered it if they were breaking windows. They might have broken a few, but certainly not many. I spent several years of my life behind bars where stinger grenades were used from time to time and I never once heard of any windows being broken. Windows in correctional facilities are usually stronger than those one would usually find at a business, even a downtown storefront used to people throwing stuff at the windows. Shortly after my release I accidentally broke a century old plate glass window just by touching it and I could see a window like that being broken by a rubber ball from a stinger grenade, but I would be shocked to find a downtown business without much stronger windows. As you can see in the video below, the rubber balls from a stinger grenade come out fast, but not fast enough to leave me with the impression that they break many windows.
The feds are probably not breaking windows in downtown Portland and even if they are they cannot be successfully sued for it.