concurring in part, dissenting in part:
I join with the majority except for part II.
I respectfully dissent from the majority’s holding that the federal government may not be held liable for the alleged tortious conduct of a federal law enforcement officer in this case because the officer was not engaged in specific investigative or law enforcement activities at the time the tort was committed.
The statute at issue clearly imposes liability for assaults committed by federal law enforcement officers:
[w]ith 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 [imposing liability on the federal government] 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.
*113728 U.S.C. § 2680(h). There is no statutory limitation as to what activity the law enforcement officers must be engaged in other than the general requirement that the officer be “acting within the scope of his office or employment.” 28 U.S.C. § 1346(b).
The defendants have conceded that Supervisor Claxton was acting within the scope of his employment as a federal law enforcement officer when he allegedly pointed a loaded gun at the plaintiffs and made statements such as: “You’re dead,” “You’re history,” “Gotcha,” and “You never had a chance.” This conduct falls within the enumerated tort of assault, and the government should be held liable if the allegations prove to be true.
I find no ambiguity in the statute that would suggest that we resort to the legislative history to determine the intent of Congress. Likewise, I do not find the words of the statute quoted above to be reasonably susceptible to an interpretation that would shield the government from liability because the defendant is not engaged in a specific law enforcement activity when the tort is committed.
I also do not find the majority’s citation to Amsberg persuasive. Amsberg dealt with a magistrate. The court in Amsberg reasoned that magistrates have a dual character, sometimes acting in the capacity of a law enforcement officer and sometimes in the capacity of an adjudicative official. Arnsberg, 757 F.2d at 978 n. 5. Therefore, the court looked to the activity the magistrate was engaged in at the time the alleged tort was committed in order to determine if the magistrate was acting in his law enforcement capacity or his adjudicative capacity. Here, U.S. Marshals have no adjudicative function. They do not have the dual character that the Arnsberg court grappled with. There is no need for us to inquire into what duties Supervisor Claxton was engaged in except to determine if he was acting within the scope of his employment when the tort was committed.
Because the defendants have conceded that Claxton was acting within the scope of his employment when the alleged assault was committed, I would remand for a trial on the merits with respect to the, claims stemming from Claxton’s alleged assaul-tive conduct.