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Excessive Force Claim From Mistaken Identity Gets SCOTUS Look (1)

March 30, 2020, 1:46 PMUpdated: March 30, 2020, 6:20 PM

A case of mistaken identity that resulted in a brawl between law enforcement and a Michigan man will go before the U.S. Supreme Court.

The justices said on Monday that they will hear a case arising out of the 2014 arrest gone wrong, which involved a federal agent and a city police officer working on a joint state/federal task force.

The case, filed by the federal government, seeks to dismiss the unreasonable force and excessive force suits brought by James King, who fit the general description of a fugitive.

King sued not only the officers, Todd Allen and Douglas Brownback, but also the federal government under the Federal Tort Claims Act. The law waives sovereign immunity for the U.S. in certain cases.

King was walking near a gas station in Grand Rapids, Mich., when Allen and Brownback mistook him for a fugitive. The plainclothes officers stopped King who thought he was about to get mugged.

King ran, the officers pursued, and a brawl ensued. The incident ended only when bystanders called police.

The federal government argues that the district court’s dismissal of the FTCA claim against the U.S. triggered the “judgment bar,” which prohibits plaintiffs from bringing additional claims involving the “same subject matter” after a judgment has been issued on the FTCA claim.

Because the dismissal was for failure to state a claim under the FTCA, the dismissal has no preclusive effect, the Cincinnati-based U.S. Court of Appeals for the Sixth Circuit said.

The Justice Department didn’t return a request for comment.

But the Institute for Justice, which represents King, said “the government is asserting that simply bringing an FTCA claim is like stepping on a tripwire that destroys your constitutional claims.”

“We hope the Court will reject the government’s request for yet another way to shield officers from constitutional accountability,” said IJ Attorney Patrick Jaicomo.

Although that court said King could continue to sue the officers, it said he could only bring a “Bivens suit” rather than one under 42 U.S.C. §1983.

Section 1983 allows for suits against state officials who violate constitutional rights. A Bivens claim is a judge-made rule allowing a similar suit against federal officials. Because the task force was run by the FBI, not the state, Bivens was the only possible remedy, the Sixth Circuit said.

The “Supreme Court has recently and progressively restricted the availability of a Bivens action for violation of constitutional rights by a federal official, characterizing the implied Bivens action as a ‘disfavored’ remedy,” University of St. Thomas law professor Gregory Sisk said.

Most recently, it cut back on Bivens claims by disallowing a suit in a cross-border shooting of a Mexican teen by a U.S. border agent.

“With a statutory underpinning, section 1983 claims against state officials rest on a much firmer foundation than do judge-made rights to sue under Bivens,” said Northwestern law professor James Pfander.

Given the Supreme Court’s hostility toward Bivens actions, King would prefer to sue under the federal statute. But the court refused to review that ruling on Monday.

Sisk and Pfander said not to read too much into the court’s decision just to take one of the cases.

The court often grants petitions filed by the federal government, Pfander said. And “the issue posed in the cross-petition about state-federal task forces would have taken the Justices pretty far from the question” in the government’s brief, he said.

Moreover, “the question of the judgment bar’s scope arises regularly,” Sisk said. The court recently address it in 2016 in Simmons v. Himmelreich, he said.

Both he and Pfander filed an amicus brief in that case, arguing against a robust application of the judgment bar.

The Supreme Court ultimately agreed.

The granted case is Brownback v. King, U.S., No. 19-546, 3/30/20, the denied one is King v. Brownback, U.S., No. 19-718, 3/30/20.

(Updates with comments from University of St. Thomas law professor Gregory Sisk, Northwestern law professor James Pfander, and the Institute of Justice.)

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at

To contact the editors responsible for this story: Jessie Kokrda Kamens at; Andrew Harris at