I note first that this claim falls within the FTCA's waiver of sovereign immunity so long as it does not “arise out” of an intentional tort enumerated in Section 2680. 28 U.S.C. § 2680(h); Shahen v. United States, No. 21-2039, 2023 WL 1805828, at *2 n.3 (E.D. Pa. Feb. 6, 2023). The Government does not contend that it is immune.

Id. at 272 n.15; see also Shahen v. United States, 2023 WL 1805828, at *8 (E.D. Pa. Feb. 6, 2023) (holding, pre-Xi, that plaintiff could not overcome the discretionary function exception to the FTCA by reference to alleged constitutional violations of his Eighth Amendment rights). The Third Circuit's recent holding in Xi, however, is clear: Plaintiffs can use the Constitution as a sword to the government's discretionary function exception shield.

Just this year, the Eastern District of Pennsylvania has stepped away from three Third Circuit opinions that have "held that (contrary to Shivers et al.,) conduct cannot be protected by the discretionary function defense if it violates the Constitution." Shahen v. United States, No. CV 21-2039, 2023 WL 1805828, at *7 (E.D. Pa. Feb. 6, 2023). It does so by first noting that, "although these cases do contain language which suggest that a constitutional violation precludes application of the discretionary function exception in each case the discussion was dicta." Id.