Yesterday, the Supreme Court unanimously held in Millbrook v. United States that 28 U.S.C. § 2680(h) — the statute that permits lawsuits against “investigative or law enforcement officers of the United States Government” for claims arising “out of assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution” — means just what it says, reversing nearly thirty years of law in the Third Circuit. So why did the Supreme Court have to tell us that a statute meant what it obviously meant?
The case arose from a prisoner in the United States Penitentiary in Lewisburg, Pennsylvania, who alleged “that he was taken to the basement of the SMU and forced to perform oral sex on Correctional Officer Pealer while Correctional Officer Edinger held his neck and Correctional Officer Gimberling stood watch by the door.” “SMU” stands for “Special Management Unit”; if you’ve ever watched a movie or TV with a prison in it, you know SMU as “the hole.”
Millbrook alleged he was assaulted, battered, and falsely imprisoned by three law enforcement officers of the United States. Under § 2680(h), there’s not much more to ask about the case: his claim was exactly the sort of claim Congress sought to permit when it amended the Federal Tort Claims Act in 1974 in response to a disturbing rise in “no knock” raids that destroyed homes and even killed people — without even probable cause or a warrant, as required by the Fourth Amendment. (It’s a couple years old now, but this long report from Radley Balko on the rise of paramilitary raids by domestic law enforcement is essential reading — sadly, the problem has gotten much worse in the past 40 years.) The law means, quite simply, that the United States is liable when investigative or law enforcement officers of the United States Government commit those specific intentional torts in the scope of their employment.
In the years since the Act’s passage, the courts have been busy eviscerating it by granting the government and its employees an increasing amount of immunity. In 1986, the Third Circuit decided in Pooler v. United States, 787 F.2d 868, 872 that § 2680(h) was limited to claims where the “investigative or law enforcement officers” were “executing a search, seizing evidence, or making an arrest.” The Third Circuit reasoned:
We read the 1974 amendment to section 2680(h) as addressing the problem of intentionally tortious conduct occurring in the course of the specified government activities. It is in the course of such activities that government agents come most directly in contact with members of the public. The government places them in such a position, thereby exposing the public to a risk that intentionally tortious conduct may occur. That Congress intended to deal only with conduct in the course of a search, a seizure, or an arrest is confirmed by the sparse legislative history of the 1974 amendment. The Senate Report on the amendment states that the proviso was enacted to provide a remedy against the United States in situations where law enforcement officers conduct “no-knock” raids or otherwise violate the fourth amendment.
Reading the intentional tort proviso as limited to activities in the course of a search, a seizure or an arrest as a practical matter largely eliminates the likelihood of any overlap between section 2680(a) and section 2680(h).
Id. Their reading of the Senate Report is plainly wrong, which is likely why they didn’t bother to actually quote it. The Report said:
The effect of this provision is to deprive the Federal Government of the defense of sovereign immunity in cases in which Federal law enforcement agents, acting within the scope of their employment, or under color of Federal law, commit any of the following torts: assault, battery, false imprisonment, false arrest, malicious prosecution or abuse of process
(The Senate Report is quoted in Sami v. United States, 617 F. 2d 755, 764 (D.C. 1979).) The rest of the Third Circuit’s analysis didn’t make any sense, either: what made the Court believe that Congress wanted to limit the claim to where “government agents comemost directly in contact with members of the public,” or that Congress wanted to “eliminate[ ] the likelihood of any overlap between section 2680(a) and section 2680(h)”?
But, under the doctrine of stare decisis, once a court makes a bad decision, later courts are entitled to apply that same decision without thinking twice about it, which is how both the Middle District of Pennsylvania and the Third Circuit blindly applied Poolerwithout bothering to consider whether Pooler was right in the first place. The first point that anyone in the case (other than Millbrook) started really thinking about the case was last December, when the Solicitor General realized that the Pooler interpretation was so wrong they couldn’t even defend it.
Yesterday’s opinion from the Supreme Court, written by Justice Thomas, completes the process, reversing dozens of prior cases applying the Pooler rule (or another Circuit’s equivalent) to shut the courthouse doors on people just like Millbrook who alleged they were intentionally hurt by U.S. government agents. I suppose we should be glad “better late than never,” a cold comfort for those whose cases were summarily dismissed, or who told — correctly — by lawyers that they shouldn’t even bother to file a lawsuit.
The extraordinary course of this case deserves mention, as it perhaps holds an important lesson for the way the Supreme Court conducts business. Millbrook filed his case pro se, appealed pro se, then filed for Supreme Court certiorari pro se. The Supreme Court grants far fewer than 1% of the petitions for certiorari it receives, and grants even fewerpro se certiorari petitions — yet, in this case, the Court not only granted the petition, but reformed the question presented to reach the question that best benefitted Millbrook. The Court then appointed counsel for him and, eventually, counsel to defend the Third Circuit’s position when the United States refused to do it, and, importantly, both of the lawyers appointed to represent both sides of the case formerly clerked for Justice Alito.
Why is that important? We don’t how the case was chosen for certiorari, nor how the lawyers were appointed. But we do know that Justice Alito is the only Justice who doesn’t participate in the “cert pool,” the process by which petitions for certiorari are read by a single clerk, who prepares a short memo for all of the Justices. Justice Alito, however, has his own clerks review every petition for certiorari — and we may have just seen the practice of having more than one reviewer pay off, so to speak, if it was his clerks who were able to spot a diamond in the rough, a pro se petition raising a legal error from Justice Alito’s home circuit. Perhaps the Justices should consider revamping the way cert petitions are reviewed — the more eyes, the better.