The Supreme Court on Thursday issued a unanimous opinion against a man involved in a “violent encounter” with federal authorities in 2014. The justices agreed with government attorneys who argued it should be difficult to successfully sue for damages against individual officers or the government. But the man at the center of the controversy says his fight is far from over due to the many questions the justices said should be answered through future stages of litigation.
The opinion, authored by Justice Clarence Thomas, said that federal task force officers Todd Allen and Douglas Brownback “mistook” plaintiff James King “for a fugitive,” but the opinion otherwise glossed over the severity and the factual context surrounding what occurred. Allen was a Grand Rapids, Mich. police detective serving on a federal task force. He and Brownback were working undercover when they approached King. They asked King who he was, cornered him, and asked him what was in his pocket. King ran and resisted; he had no clue the men were officers and said he thought they were trying to mug him. The whole thing was caught on video in broad daylight.
King, then 21, has since spoken about what occurred.
The authorities charged King with resisting arrest. A jury acquitted him.
King sued the United States Government under the Federal Tort Claims Act and the officers individually under Bivens v. Six Unknown Federal Narcotics Agents. Bivens is the 1971 case which grants an “implied” right of action against federal officers who violate the Fourth Amendment’s guarantee against unreasonable searches and seizures. Because both officers were operating on a federal task force, Bivens applied.
The Supreme Court’s unanimous opinion agreed that a federal district court properly dismissed King’s Federal Tort Claims Act (FTCA) lawsuit against the United States itself because underlying Michigan state law afforded the officers the protection of qualified immunity. (In the alternative, the district court decided King’s case should be jettisoned because King failed to state a viable claim under the Federal Rules of Civil Procedure.)
The Supreme Court also agreed that the lower district court’s dismissal of King’s FTCA claims against the government triggered a legal bar against lawsuits involving the individual officers.
The core legal issue was whether the FTCA decision in favor of the government functioned as a “judgment on the merits” which in turn triggered the so-called “judgment bar” against the Bivens claims. The Supreme Court held that it did: the FTCA dismissal was properly premised on the doctrine of qualified immunity; therefore, the FTCA dismissal was “on the merits” for the purposes of barring the Bivens claim.
Under the Federal Tort Claims Act, the court’s majority noted that a plaintiff can recover damages against the government if six elements are met. The plaintiff’s lawsuit must be:
[1] against the United States, [2] for money damages, . . . [3] for injury or loss of property, or personal injury or death [4] caused by the negligent or wrongful act or omission of any employee of the Government [5] while acting within the scope of his office or employment, [6] 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.
As Justice Thomas pointed out, the Federal Tort Claims Act (FTCA) upended the previous legal regime of sovereign immunity, insulating the government from lawsuits unless it agrees it can be sued. Under the old system, injured parties asked—or perhaps begged—Congress directly for compensation to redress their grievances. Such requests were only successful some of the time. The FTCA changed all all that and allowed parties injured by the government to sue for damages; however, it also prevented injured parties from suing individual government employees or actors under what’s known as the “judgment bar provision.” If an FTCA lawsuit is decided “on the merits,” the “judgment bar” is triggered, and the injured plaintiff cannot recover damages directly against the government employee defendants.
The Sixth Circuit previously ruled that the FTCA decision in favor of the government did not trigger the “judgment bar” against the officers. It also held that individual officers were not entitled to sovereign immunity and, in essence, that King’s lawsuit could advance.
Justice Thomas rubbished the Sixth Circuit’s logic (citations omitted):
Here, the District Court entered a “Judgment . . . in favor of Defendants and against Plaintiff.” The parties agree that, at a minimum, this judgment must have been a final judgment on the merits to trigger the bar, given that the “provision functions in much the same way as [the common-law doctrine of claim preclusion].” We agree.
But the Supreme Court did allow King a sliver of hope. In a footnote, Justice Thomas noted that the Sixth Circuit didn’t fully vet King’s argument that his litigation as a whole couldn’t be sliced and diced in a manner which shut down his Bivens claim (against the officers) due simply to the dismissal of his FTCA claim (against the government). King asserted that because his multiple claims were pressed via a single lawsuit, his claims against the officers could not be summarily brushed aside under the doctrine of “claim preclusion” (which is similar to the “judgment bar”). Claim preclusion generally prevents litigants from filing new lawsuits against claims that have already been litigated or decided in old lawsuits. Per Justice Thomas:
King argues, among other things, that the judgment bar does not apply to a dismissal of claims raised in the same lawsuit because common law claim preclusion ordinarily “is not appropriate within a single lawsuit.” The Sixth Circuit did not address those arguments, and “we are a court of review, not of first view.” We leave it to the Sixth Circuit to address King’s alternative arguments on remand.
In another footnote, Thomas noted that there was dissension over how far the doctrine of “claim preclusion” could be used to influence the courts’ interpretations of the “judgment bar”: “The parties disagree about how much the judgment bar expanded on common-law preclusion, but those disagreements are not relevant to our decision.”
Overall, though, Thomas did not seem interested in the weedy arguments over claim preclusion because they were not squarely before the court on appeal.
“[B]ecause the undisputed facts here showed that the officers would have been entitled to immunity from King’s tort claims, the United States, by extension, was not liable under the FTCA,” he wrote.
Thomas went on to tackle another paradoxical question. The federal district court which originally junked King’s lawsuit ruled in part that it did not have subject matter jurisdiction over King’s FTCA claims. How, therefore, could the district court’s decision about sovereign immunity be “on the merits” for the purposes of triggering the judgment bar against the subsequent Bivens claims if it didn’t have jurisdiction in the first place?
The Sixth Circuit latched onto this question. Thomas answered it by arguing that FTCA claims are somehow different.
“Ordinarily, a court cannot issue a ruling on the merits ‘when it has no jurisdiction’ because ‘to do so is, by very definition, for a court to act ultra vires,'” Thomas wrote while quoting another case. (Ultra vires acts are acts beyond one’s authority.). “But where, as here, pleading a claim and pleading jurisdiction entirely overlap, a ruling that the court lacks subject-matter jurisdiction may simultaneously be a judgment on the merits that triggers the judgment bar.”
Thomas continued (citations omitted):
A dismissal for lack of jurisdiction is still a “judgment.” And even though the District Court’s ruling in effect deprived the court of jurisdiction, the District Court necessarily passed on the substance of King’s FTCA claims. Under the common law, judgments were preclusive with respect to issues decided as long as the court had the power to decide the issue. Because a federal court always has jurisdiction to determine its own jurisdiction, a federal court can decide an element of an FTCA claim on the merits if that element is also jurisdictional. The District Court did just that with its Rule 12(b)(6) [failure to state claim] decision.
Justice Sotomayor issued a concurrence. Though she agreed with the core holding that the lower district court did address King’s FTCA claims on the merits, she wrote separately to emphasize what Thomas buried in one of the aforementioned footnotes.
Sotomayor framed the case along the lines of issue preclusion—not claim preclusion. While the doctrine of issue preclusion prevents parties from re-hashing the narrow issues they’ve previously litigated, claim preclusion prevents parties from re-litigating the broader factual circumstances which gave rise to an earlier lawsuit. Sotomayor sees the former, not the latter, as a better way to interpret the judgment bar—especially when a plaintiff sues everyone in the same proceeding:
“[T]he Court does not today decide whether an order resolving the merits of an FTCA claim precludes other claims arising out of the same subject matter in the same suit,” Sotomayor wrote (emphasis ours). “Although the parties briefed the issue, it was not the basis of the lower court’s decision.”
Therefore, she couldn’t touch the issue, though she clearly wanted to do so.
“I write separately to emphasize that, while many lower courts have uncritically held that the FTCA’s judgment bar applies to claims brought in the same action, there are reasons to question that conclusion,” Sotomayor said. “This issue merits far closer consideration than it has thus far received.”
Sotomayor complained that the narrow unanimous holding—with which she agreed, mind you—was a “significant departure from the normal operation of common-law claim preclusion.” In other words, the holding looked at the trees, not the forest.
The federal agents’ “interpretation” of the law—which won this case—”produces seemingly unfair results by precluding potentially meritorious claims when a plaintiff’s FTCA claims fail for unrelated reasons,” Sotomayor wrote.
Here, for example, King’s constitutional claims require only a showing that the officers’ behavior was objectively unreasonable, while the District Court held that the state torts underlying King’s FTCA claims require subjective bad faith. If petitioners are right, King’s failure to show bad faith, which is irrelevant to his constitutional claims, means a jury will never decide whether the officers violated King’s constitutional rights when they stopped, searched, and hospitalized him.
“There are, of course, counterarguments,” Sotomayor acknowledged. “There are naturally counterarguments to those counterarguments, and so on, but further elaboration here is unnecessary,” she later said in a string of paragraphs which highlighted the legal complexity of the matter.
She again teed the case up for future litigation.
“While lower courts have largely taken [the federal agents’] view[s] of the judgment bar, few have explained how its text or purpose compels that result. In my view, this question deserves much closer analysis and, where appropriate, reconsideration.”
King’s advocates have long complained that the legal regime surrounding federal task forces is a legal “shell game” which allows officers to “avoid accountability.”
After the Supreme Court released its opinion, King’s attorneys emphasized that the court explicitly left open the chance for King’s lawsuit to eventually succeed.
“Although today’s decision appears at first glance to deal a blow to constitutional accountability, in reality, the Supreme Court teed up the central issue in this case for the federal appeals court to reconsider. It is asking the 6th U.S. Circuit Court of Appeals to weigh in on whether centuries of common-law practice should apply—or be abandoned—when the issue involves constitutional violations committed by federal police,” said Patrick Jaicomo of the Institute for Justice. “When it does, our client James King, the innocent college student the officers choked and beat in 2014, will be able to persuasively argue why he deserves a day in court. And that’s what we have been fighting for since day one. If Americans must follow the law, government employees must follow the Constitution.”
Attorney Anya Bidwell of the Institute for Justice continued.
“When James King’s case goes back down to the federal appeals court, all this discussion about the merits of the case will no longer apply,” she said. “The only question before the court will be whether claims brought in the same lawsuit should cancel each other out simply because a government employee is the defendant. That should never have been the case, but that is exactly what the government argued, and it seems the justices were rightly not convinced.”
King said he was “happy with the outcome.”
“The fight continues, and this time on our terms,” he explained. “I’m looking forward to being back in court. The officers who assaulted me are not above the law and neither is anyone else, simply by virtue of being employed by the government.”
Read the full opinion and the full concurrence below:
Brownback v King – SCOTUS – 2-25-2021 by Law&Crime on Scribd
[via screen capture from YouTube/WXMI-TV]
Editor’s note: this piece has been edited post-publication for additional clarity and to includes further comments from King and his attorneys.
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