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SCOTUS Just Heard Oral Arguments in Case About Excessive Use of Force by Police — What to Know


The Supreme Court of the United States heard oral arguments Monday in Brownback v. King. The case ultimately relates to the question of what recourse a victim of police violence has when the officers involved are part of a hybrid state-federal task force. What’s at stake is whether the Supreme Court will allow cooperation between federal and state law enforcement to result in a kind of “shell game” that culminates in an enormous legal loophole for cops.

First, let’s go over some background on the facts underlying the dispute.

James King, a 23-year-old Michigan college student, was walking home one night in 2014. Two undercover law enforcement officers—Grand Rapids Police Detective Todd Allen and FBI Special agent Douglas Brownback–mistook King for a wanted burglary suspect.

Allen and Brownback demanded identification from King. He refused, because he thought he was being mugged. The officers pursued King, put him into a chokehold, and eventually beat him. Later, King was prosecuted and acquitted for resisting arrest and assaulting the officers.

King sued for excessive use of force. Here’s where the case gets tricky: Allen and Brownback weren’t just any cops – they were members of a “joint task force.” That distinction makes the legal procedure of the whole case something worthy of SCOTUS intervention.

When a person brings a claim against state or local law enforcement officers for excessive use of force, they typically do so under Section 1983 of the U.S. Code. Many states also have their own version of §1983, which allow plaintiffs to sue local cops for violating state-guaranteed constitutional rights. And finally, if we’re talking about federal LEOs, the right kind of case to bring is called a “Bivens claim,” which gets its name from case law. Depending on the facts involved, victims of federal police violence can sometimes also sue the officer’s federal agency in tort (as opposed to civil rights) under the Federal Tort Claims Act (FTCA).

Because King’s case involved both federal and state officers, he filed civil rights lawsuits under §1983 as well as Bivens, and he filed a tort claim under the FTCA. The courts were not friendly to King’s claims. The federal court dismissed the claims, reasoning that 1983 doesn’t apply because the task force was federal (not state) agency. King couldn’t have a valid FTCA claim, because Michigan state law immunizes law enforcement agencies.

In other words, the task force was given all of the benefits of being considered “federal” and all of the benefits of being “local.” Regardless of how wrongly King may have been treated, his case failed because it did not fit squarely within the area defined by either law.

King dropped the FTCA claim, but appealed the other rulings. The U.S. Court of Appeals for the Sixth Circuit ruled that officer Allen was a “federal agent” – which means §1983 is out and that King can only proceed with a Bivens claim. The Department of Justice appealed that ruling, and is now attempting to convince SCOTUS to throw out King’s surviving chance of legal recovery.

The case before SCOTUS

Technically, the question presented to the justices is whether a lower court ruling on the FTCA “precludes” a plaintiff from bringing a Bivens claim. Preclusion is a nuanced and complex legal issue that aims to ensure that legal procedures are fundamentally fair to both parties; it seeks to limit duplicative litigation by limiting a plaintiff to “one bite” at the apple of recovery.

The legal rules at play in the Brownback case, as with many preclusion cases, focus on whether a claim dismissed at a lower court level (here, King’s FTCA claim) is truly the kind of final ruling that would (or should) block him from continuing on his other claims related to the same incident.

At oral arguments, the DOJ argued for a strict reading of the applicable statute–one that would preclude King from bringing his Bivens claim against the offending law enforcement agency. King was unable to successfully plead that case below, argued the government; therefore, King shouldn’t have another chance to try again.

On behalf of King, though, lawyer Patrick Jaicomo pointed out that King’s claims had begun as part of a single lawsuit. “This is the one and only case Mr. King has ever filed,” Jaicomo reasoned.

Justice Stephen Breyer appeared skeptical of Jaicomo’s argument. He was concerned, explained the justice, about a plaintiff first suing the government and winning a money judgment, then suing an employer for the same wrongdoing and getting “extra damages.”

Justice Sonia Sotomayor appeared to share Breyer’s practical concerns, but raised them against the government’s position. Sotomayor asked whether the government was encouraging plaintiffs to file their Bivens claims first, wait for a determination, and then later file FTCA claims and “hope they’ve won.” Such a system, said Sotomayor, would be time-consuming for courts and litigants.

The justices all seemed a bit edgy during the Brownback arguments. Several times, the justices raised their discomfort with the fact that the attorneys were relying on arguments that differed from those which had been raised in the petition for certiorari.

At one point, Justice Samuel Alito even snapped at King’s attorney: “How about you answer the question I actually asked.” Alito referred to a question about whether dismissal of an FTCA claim for failure of proof amounts to a determination on jurisdiction.

Justice Brett Kavanaugh was not convinced that the parties should have strayed from the arguments raised in their prior pleadings before SCOTUS.

“I want to raise the point that’s bothering me about what we should decide,” Kavanaugh began. “We don’t usually decide things that weren’t decided by the court below.” Kavanaugh acknowledged that there are “some exceptions” to this rule, but declined to opine on whether this case fits within those.

“I’m back at why should we consider that in this case?” Kavanaugh asked.

Justice Amy Coney Barrett had lengthy exchanges with counsel, asking primarily about the distinction between cases dismissed on procedural grounds versus those dismissed on the merits.

Neither the justices nor any of the attorneys raised any arguments relating specifically to excessive use of force by police. Rather, the exchanges and arguments focused entirely on the technical correctness of statutory interpretation involving claim preclusion. The dispute was squarely characterized as one over Congress’s intent to allow various lawsuits to proceed.

Furthermore, given the justices’ questions during arguments, it seems entirely possible that the case will be decided narrowly. Although the Court could rule using any of the arguments presented to it, it may well choose to rule only on those that formed the basis of the grant of certiorari.

An audio recording of the full oral arguments can be accessed here.

[image via Samuel Corum/Getty Images]

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos