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Law Enforcement Accountability at Stake in Coming SCOTUS Cases

Oct. 6, 2020, 9:16 AM

A group of Muslim men put on the no-fly list after refusing to become FBI informants, a woman shot by police officers in New Mexico, and a man beaten by members of a state-federal task force in Michigan all have one thing in common: they want their day in court against law enforcement.

Whether that day comes depends how the U.S. Supreme Court rules in their cases set for oral argument over the next several weeks.

The unrelated disputes highlight barriers to bringing cases against government officials, said Anya Bidwell. She’s an attorney with the Institute for Justice, the group that represents James King, the man beaten by the task force. The institute also filed friend-of-the-court briefs supporting the individuals in the other two cases.

The Supreme Court has continued to sidestep calls to reexamine the qualified immunity doctrine that shields officials from suits, even as mass protests against police violence spread across the U.S. in recent months.

The justices denied review in several qualified immunity cases on Monday and none of the upcoming cases deal with the immunity doctrine head-on. But the issue lurks in the background as plaintiffs seek to chip away at more discrete legal barriers.

Similar to the government’s defense of qualified immunity, officials and their supporters say the prospect of liability would force officers to second guess themselves in difficult situations.

The more opportunities there are for officers to be sued, “the more hesitation they are likely to bring to the equation, which is not a good thing for them or bystanders,” said Lisa Soronen, executive director of the State and Local Legal Center. The group filed an amicus brief supporting police in the New Mexico case that centers on whether Roxanne Torres was “seized” within the meaning of the Fourth Amendment when she was shot but got away.

Informants, Religion

Set for argument Tuesday, Tanzin v. Tanvir, asks whether a federal law protecting religious liberty, the Religious Freedom and Restoration Act, allows the group of American Muslim men to sue members of the FBI for money damages.

Muhammad Tanvir, Jameel Algibhah, and Naveed Shinwari said agents restricted their ability to fly because they refused to spy on their religious communities, which they said would violate their beliefs as practicing Muslims.

The men point out that officials can still receive qualified immunity. But the Justice Department is fighting their suits on the additional ground that the religion statute doesn’t give them the right to sue for money. The government also says the prospect of litigation and financial consequences would thwart federal employees from doing their jobs.

As amicus briefs from religious and non-religious groups show, the outcome of the case, which turns on how the justices interpret the religious protection statute, has implications well-beyond the criminal justice context as well.

Seizure Suits

Torres v. Madrid deals more squarely with the criminal sphere and is slated for argument on Oct. 14.

The question is whether failing to detain a suspect by using force counts as a “seizure” under the Fourth Amendment that gives rise to an excessive force suit, or whether plaintiffs lose the chance to sue if they get away.

During an investigation, New Mexico officers Janie Madrid and Richard Williamson shot at Torres 13 times and hit her twice while she drove away. She wasn’t the suspect they were looking for.

Torres sued for excessive force, but lower courts said she couldn’t bring her claim because she got away and so technically wasn’t seized.

There are already enough hurdles to bringing suits, said Jay Schweikert of the Cato Institute’s Project on Criminal Justice, which filed an amicus brief supporting Torres as well as King. Rulings like the one that say it isn’t a seizure, Schweikert said, add “another ridiculous hurdle” that says “if the officers unreasonably shot you but you managed to get away, that’s a free pass for them.”

The officers said they feared Torres would run them over.

Soronen criticized the argument that “you can be charged for excessive force when your force didn’t even work.” She said there has to be some end to where police can be liable. “If they do something and it’s ineffective, it’s not clear to me that it’s totally fair to them to be responsible for that.”

Shell Game

The justices will return to another case involving police use of force on Nov. 9 in Brownback v. King.

Dressed in plainclothes, task force members FBI agent Douglas Brownback and detective Todd Allen approached King on the street, thinking he may be a suspect they were looking for. He wasn’t, and they beat him during a scuffle. King was charged with resisting arrest and assault.

He was acquitted, but encountered unique difficulties in his quest to hold Brownback and Allen civilly liable, despite an appeals court ruling that said the officers aren’t entitled to qualified immunity. At issue at the high court is the government’s argument that dismissal of King’s claims against the U.S. under the Federal Tort Claims Act bars his separate claims against the officers entirely.

The judgment bar “serves both to protect federal employees against the threat and distraction of individual litigation, and to relieve the government of the burden of defending multiple claims arising out of the same incident,” the Justice Department said in its brief to the justices ahead of the argument.

Bidwell, a leader of the Institute for Justice’s Project on Immunity and Accountability, called the obstacles in the case “another shell in the shell game that the government uses.” She stressed that King just wants the chance to win.

“Often someone would tell us, wait a minute, maybe the officers have their side of the story, too, right? And we say ‘that’s great, let them tell their side of the story.’ But they are refusing to even begin telling their side of the story.”

To contact the reporter on this story: Jordan S. Rubin in Washington at jrubin@bloomberglaw.com

To contact the editors responsible for this story: John Crawley at sstern@bloomberglaw.com; Tom P. Taylor at jcrawley@bloomberglaw.com