This morning the Supreme Court continued its virtual operations, releasing orders from the justices’ private conference last week. Following the Centers for Disease Control and Prevention’s guidelines for COVID-19, and in a departure from tradition, only Chief Justice John Roberts was in the justices’ conference room again last week, with the rest of the justices participating remotely by telephone. The justices added only one new case to their merits docket for next term. They did not act on the federal government’s challenge to California’s “sanctuary state” laws, which prohibit state and local law enforcement officials from cooperating with federal immigration officials – for example, by providing information about individuals in custody or transferring inmates in their custody to federal immigration authorities.
The justices agreed to take up an appeal filed by the federal government on behalf of law enforcement officials who were sued by a Michigan man whom they had tried to arrest when they mistakenly believed that he was a fugitive they were seeking.
The Federal Tort Claims Act allows lawsuits against the federal government for damages for wrongdoing by federal employees in situations in which a private person could be held liable under the law of the place where the conduct occurred. Another provision of the FTCA – known as the “judgment bar” – prohibits lawsuits against government employees based on the same conduct that has been the subject of a final judgment under the FTCA. The government asked the Supreme Court to weigh in on whether a final judgment in favor of the United States in a lawsuit brought under the FTCA, on the ground that a private individual could not be held liable in the same circumstances, bars a claim against a government employee based on Bivens v. Six Unknown Named Agents, in which the Supreme Court allowed a lawsuit seeking damages from federal officials for violating the Constitution to go forward.
The question comes to the court in the case of James King, who was stopped by members of a joint task force – which included an FBI agent and a detective from the Grand Rapids, Michigan, police force – who believed (wrongly) that King was the fugitive whom they were seeking. After King resisted arrest, including by biting Detective Todd Allen, Allen repeatedly punched King in the head and face. King was acquitted on assault charges. He then sued the federal government under the FTCA, alleging wrongdoing under Michigan law, and the officers under Bivens and federal civil rights laws, alleging that they had used excessive force and conducted an unreasonable search and seizure.
The federal district court ruled for the government, concluding that the officers could not be held liable under Michigan law. It also ruled in favor of the officers. Determining that King’s claims should be treated as Bivens claims, it found that the officers had not violated King’s constitutional rights.
King appealed the Bivens ruling to the U.S. Court of Appeals for the 6th Circuit, which rejected the officers’ argument that the FTCA’s “judgment bar” blocked King’s Bivens claim from going forward. Because the district court ruled that King had not properly stated an FTCA claim, the court of appeals reasoned, the district court did not have the power to hear King’s claim, and therefore there was no ruling on the merits. The court of appeals upheld the district court’s conclusion that King’s claims must be brought under Bivens, and it ruled that the officers were not entitled to qualified immunity on some of King’s claims.
The government, on behalf of the officers, asked the Supreme Court to weigh in. King filed his own petition, contingent on the court’s granting the officers’ petition, in which he asked the justices to rule on whether a law enforcement officer’s membership in a joint federal-state task force means that the officer could not have acted “under color of state law” for purposes of federal civil rights laws; the justices denied that petition today.
Justice Sonia Sotomayor dissented from the court’s denial of a petition filed by Scott Patrick, an Oregon man who was convicted in 2000 of an unarmed bank robbery. In a short statement joined by Justice Ruth Bader Ginsburg, Sotomayor explained that Patrick’s case involved the same question on which she had previously dissented from the denial of review: whether defendants sentenced under mandatory sentencing guidelines can rely on the court’s 2015 decision in Johnson v. United States, holding that the “residual clause” of the Armed Career Criminal Act is unconstitutionally vague, to challenge the constitutionality of their sentences. Sotomayor explained that because the Supreme Court had “repeatedly declined” to take up the question, she would no longer note her dissent in similar cases going forward. She expressed her hope that “the Court will at some point reconsider its reluctance to answer it.”
Justices Clarence Thomas, Samuel Alito and Brett Kavanaugh noted that they would have granted Cannon v. Seay, involving South Carolina’s efforts to retry Broderick Seay on murder charges after the government’s key witness did not appear to testify at Seay’s original trial. After the U.S. Court of Appeals for the 4th Circuit granted Seay’s request for federal post-conviction relief, the state filed a petition for certiorari, which the Supreme Court denied today.
The justices are scheduled to hold another conference on Friday, April 3. Orders from that conference are expected next Monday, April 6, at 9:30 a.m.
This post is also published on SCOTUSblog.