MARY REICHARD, HOST: It’s Monday morning and welcome to another week of The World and Everything in It. Today is the 30th of November, 2020.
Good morning to you, I’m Mary Reichard.
NICK EICHER, HOST: And I’m Nick Eicher.
Well, I know how holidays can get us out of our routines—we are creatures of habit—and so we’ve decided to keep open our listener survey for a little longer than we’d initially planned. If you have a couple of minutes—and that’s really all it takes—why not head over to listenersurvey.org and add your voice? Listenersurvey.org.
REICHARD: It’s time now for Legal Docket.
But before I get into oral arguments, I’ll mention the really big news just before Thanksgiving Day—moments before midnight Wednesday—in a 5-4 decision, the U.S. Supreme Court ruled in favor of religious liberty.
With the chief justice now in the minority, the conservative court majority held that the restrictions on religious services New York Governor Andrew Cuomo imposed are likely unconstitutional.
What that means is that pending an appeal in a lower court, the Supreme Court says New York cannot in the meantime enforce those restrictions.
EICHER: Catholic and Jewish groups sued under their First Amendment right to free exercise of religion.
The courts are supposed to protect these first freedoms with the highest level of judicial review. It’s called strict scrutiny.
So when the government seeks to infringe these freedoms, the courts apply a two-part test: one, does the government have a compelling reason for what it wants to do? and two, is its action or policy narrowly tailored to accomplish its goal?
REICHARD: I’ll quote directly from the unsigned majority opinion here:
“Stemming the spread of Covid-19 is unquestionably a compelling interest, but it is hard to see how the challenged regulations can be regarded as narrowly tailored … the Governor has chosen to impose no capacity restrictions on certain businesses he considers essential … hardware stores, acupuncturists, and liquor stores … . Who knew public health would so perfectly align with secular convenience? … Even if the Constitution has taken a holiday during this pandemic, it cannot become a sabbatical.”
EICHER: The four dissenters, including Chief Justice John Roberts, preferred to decide the matter at some later date.
Well, on to today’s oral argument.
ROBERTS: We will hear argument next in Case 19-546, Brownback versus King.
REICHARD: The “King” in that case is James King. He was a 21 year old college student six years ago in Grand Rapids, Michigan.
One night he was walking to his job, when two men came up to him, asked his name, boxed him in, and grabbed his wallet out of his back pocket.
King suspected it was a mugging, so he ran.
But the two men tackled him and beat him.
A bystander called 911.
EICHER: The men choked King until he lost consciousness; when he came to, he bit the arm of one of the men.
Which brought about an escalation of the beating.
When police arrived a brief investigation revealed a case of mistaken identity. The two men were undercover FBI agents looking for a suspect in a home-invasion case.
They thought King was that suspect, but they were wrong.
Because of the beating, King required medical treatment in the hospital.
REICHARD: But then to his consternation, police arrested him on a charge of resisting arrest and assaulting law enforcement!
He spent some time in jail until his family was able to post the $50,000 bail bond.
King underwent further hospital treatment for his injuries.
Prosecutors took the case to trial and a jury acquitted King on all charges.
EICHER: Good news for King, but a criminal trial is quite an ordeal on top of the beating he received despite his innocence.
So he sued. He accused the government of unreasonable seizure and for using excessive force in violation of his constitutional rights.
But King found himself trapped inside a legal labyrinth.
Federal law, state law, and case law wound a tight knot around his case that he couldn’t unwind.
The doctrine of qualified immunity meant the agents couldn’t be found liable for their actions, so a federal judge dismissed the case.
REICHARD: But on appeal, the 6th Circuit ruled he could proceed.
The agents appealed that decision to the Supreme Court.
Their argument is that one of King’s claims fell under the Federal Tort Claims Act. I’ll need to refer to it a lot, so I’ll use the initialism FTCA when I do.
This federal law says that when a lower court renders judgment on an FTCA claim, then that’s it. No one can pursue further claims arising from the same facts, actors, and injury.
In essence, the agents argue King’s already had his one bite at the apple of justice, and that’s all the law allows.
Their lawyer, assistant to the solicitor general Michael Huston, asked the high court to reverse the 6th Circuit:
HOUSTON: The decision below would permit a plaintiff to bring a lawsuit against the United States, litigate it all the way to summary judgment, lose on the grounds that the government employees did not do what was alleged of them, and then turn around and pursue claims against the same employees using the same factual allegations. That result makes little sense.
But King’s lawyer, Patrick Jaicomo, argued it makes even less sense to interpret the law that way.
His client never really had his day in court on the merits, namely that he was an innocent man severely beaten by police. The court below dismissed his case on other, non-merit reasons under the FTCA. So he’s not really had his one bite of the judicial apple yet.
This is a tad tricky: the language of that law bars “any action” by reason of the same subject matter against a government employee whose act “gave rise to the claim.”
The idea is to avoid repeat litigation.
Jaicomo for King laid out an easily understood hypothetical:
JAICOMO: So this gets us back to the distinction between “an action” and “any action.” And it’s simply a situation where someone had the coupon to go to a grocery store that says if you buy a case of pop or soda, as people might call it, you get any case free. Of course, a reasonable person would not understand that coupon to mean the first case was free. You have to buy the first case. The government is, in this case — in this situation, asking the Court to say that the coupon applies to the first case of soda or, in this instance, the first and only action that’s ever been brought.
Chief Justice Roberts focused on the language of the FTCA in this exchange with Huston, lawyer for the agents:
ROBERTS: The statute speaks of ‘actions,’ not ‘claims. And it was and is very well established that there is no bar with respect to claims in the same action. If Congress were going to make such a dramatic departure from that rule, the obvious word to use is right there: It’s ‘claims.’ And yet they didn’t do that.
HUSTON: If I might make two points about that, Your Honor. The first is that, as I just said…
Huston replied that “action” and “claim” are the same things. They’re synonymous.
Besides, Congress could have specified its intent to bar later lawsuits by saying no “subsequent action.” It did not say that. It just said “any action.”
And he went further:
HUSTON: Congress found that lawsuits against the government’s employees are extremely burdensome, and it wanted to limit them without precluding them entirely by saying that, if a plaintiff chooses to take advantage of the FTCA cause of action, then the judgment in that action will bring repose to the entire controversy.
“Repose to the entire controversy,” meaning the action ends the matter.
What happened to King is horrendous, but in this particular legal dispute it all comes down to a nuanced, technical argument: Can King file another lawsuit against the agents arising from the same facts —even though his FTCA claim failed?
In legal parlance, does the law “preclude” his claim?
Justice Stephen Breyer pointed out the appeals court judgment dealt with only one aspect of King’s claims, perhaps enabling King to proceed on those other aspects.
When Huston (lawyer for the agents) said all claims were bundled together in the decision below, Justice Breyer paused:
BREYER: All right. All right. I have enough to see that I have to sit down and figure this out word by word, which I’ll do.
Justice Brett Kavanaugh pointed out something others had also asked about: the arguments in the briefs from both parties differ from what they argued before the justices.
Justice Kavanaugh to Jaicomo (lawyer for King):
JAICOMO: I want to raise the point that’s bothering me about what we should decide. I don’t blame you for raising the alternative argument. I understand that you’re trying to win the case. But I’m trying to think about why we should consider it. We obviously discuss very carefully our decision whether to grant cert on particular cases in particular issues within that case. We don’t usually decide things that weren’t decided by the court below…
Jaicomo had a practical answer: the circuits are split, confusion reigns, and there’s no time like the present to resolve all of it.
I couldn’t help but think of King sitting there listening to these esoteric arguments.
I found this interview of the now 27 year old James King from February by Fox news in Grand Rapids.
KING: I expected them to be arrested and instead I was. So I was, uh, that added to the confusion and chaos of the whole situation. The emotional toll that this took on me is something that’s ongoing. Something I’m still dealing with.
He hopes that qualified immunity is thrown out or revamped so that this won’t keep happening.
KING: The simple fact is that the majority of the time this situation happens to anyone, they have no recourse. Either they accept a plea deal because they don’t have the money to afford attorneys or they’re scared or they’re jailed or killed. And in any of those cases there is no recourse. And as crazy as it sounds, I’m lucky. Because they didn’t shoot me and I’m not in prison right now.
It’s entirely possible the court will issue a narrow decision on the difference between an “action” and a “claim,” or whether the lower court’s dismissal of King’s claim was right or wrong.
Given the widespread perception that police brutality goes unanswered, though, maybe the court will find opportunity to rule more broadly.
A remand to lower court would allow both sides—police officers included—to make their case.
And that’s this week’s Legal Docket.