The Rise of Task Forces

Historically, states were responsible for most policing while federal authority was limited to distinctly federal crimes. But in recent decades, the federal government has found a workaround: joint task forces. Virtually nonexistent for much of American history, these task forces have become commonplace. Today about a thousand task forces operate nationwide, and that number is growing. To take one example of how rapidly the use of task forces has expanded, the FBI and the New York Police Department formed their first terrorism joint task force in 1979. By 2001, there were 35. By 2013, there are about 200, involving officers from more than 650 different state and federal agencies.  Nationwide, around 1,000 task forces operate today.

Task forces are charged with policing everything from narcotics to car thefts. The FBI, for example, advertises its involvement with task forces aimed at terrorism, gangs, organized crime, cybercrimes, white-collar crimes, “Indian Country” crimes, bank robberies, narcotics, kidnappings, motor vehicle thefts and fugitives.

Task Force Members Unconstitutionally Stopped, Searched, Beat, and Arrested an Innocent College Student

In 2014, James King, a 21-year-old college student at the time, was walking between his two summer internships in Grand Rapids. James had no idea his life was about to change when he came upon two men leaning against a black SUV. They were dressed in scruffy street clothes.

These men were a local police detective and an FBI agent working as part of a joint task force looking for a fugitive who was wanted for the petty crime of stealing a box of empty cans and several bottles of liquor from his former boss’ apartment.

The officers had a vague description of the fugitive:  a 26-year-old white male between 5’10” and 6’3” with glasses. They were working off of two pictures, neither of which in any way resembled James.  But James was a white male with glasses between 5’10” and 6’3” tall, so, the officers stopped him.

(Photos of the suspect police sought and a photo of James King before his beating by the law enforcement officers.)

Without identifying themselves as police, the men began asking James questions and ultimately pinned him against their vehicle. When one of the men took James’ wallet, James believed he was being mugged, so he did what any rational person would do: He tried to escape. But when he did so, the men tackled James, choked him unconscious, and severely beat him.

(Photos of James immediately and then several days after his beating by members of a joint task force.)

Like James, the bystanders did not know that the officers were with law enforcement officers. Responding to James’ desperate pleas for help, bystanders called the police stating, among other things, that those who were beating James “were going to kill him” if he didn’t get help immediately. Uniformed officers eventually arrived on the scene.

The Criminal Justice System Closed Ranks to Protect Their Own

The criminal justice system immediately closed ranks to shield the officers from any accountability for their actions. When uniformed officers arrived on the scene, one went around forcing witnesses to delete evidence.

Although it was clear that James was not the fugitive but instead an innocent student whom the officers had misidentified, police still charged James with several felonies and took him by ambulance to the hospital, where they handcuffed James to his bed. From there, police took James to jail, where he stayed until he could make bail.

Worse still, Kent County, Michigan, prosecutors refused to drop the charges. Instead, after James rejected a plea offer, prosecutors subjected him to a criminal trial. Thankfully, a jury acquitted James of all charges. If James had been convicted or pleaded guilty, he would have faced decades in prison, and it would have been nearly impossible for him to sue the officers and hold them to account for their actions that violated his constitutional rights.

The Accountability Shell Game

James’ problems didn’t stop when he filed his lawsuit. Although he had overcome the criminal charges, James now had to overcome the special protections given to government officers who violate the Constitution. And because the officers were members of a joint task force, James had two major hurdles to clear.

First, because of the system now set up to protect law enforcement officers from accountability, James had to literally guess the correct claims to bring against the officers. When a police officer violates someone’s rights, the victim usually has three types of claims they may be able to bring: one for constitutional violations committed “under color of state law” through a statute called Section 1983;[1] one for constitutional violations committed “under color of federal law” through a U.S. Supreme Court decision called Bivens;[2] and one for torts against the federal government under a statute called the Federal Tort Claims Act.[3]

In the past, it was simple to determine whether an officer acted under state or federal law: State officers acted under state law and federal officers acted under federal law. With the rise of joint task forces, that is no longer the case. Instead, someone like James must play an accountability shell game and guess the correct remedy. If he guesses wrong, he loses his ability to vindicate his rights.

The government argued James’ case had to be dismissed because, although the officers were executing a Michigan warrant against a Michigan resident for a Michigan crime committed in Michigan (there was no federal crime), the officers had not abused state power because, as task force members, they were acting under federal power. But, because Michigan provided the federal government immunity for actions like those committed by the officers, the officers could not be held liable for abusing federal power either.

Second, even if James could guess correctly, he had to overcome the doctrine of so-called “qualified immunity”—a doctrine the U.S. Supreme Court created in 1982 to shield government officers from accountability for violating the Constitution. Under qualified immunity, a government officer is immune from accountability for violating the Constitution unless the victim can show that a court has already “clearly established” that the officer’s specific actions are unconstitutional. Framed as a fair warning to officers, qualified immunity is anything but fair. That is because a constitutional violation is only “clearly established” if an earlier case presents nearly identical facts.

To understand how qualified immunity creates a system that unjustifiably tilts in favor of law enforcement officials and against those whose rights are being violated, consider a recent appeals court ruling, which held that officers were entitled to qualified immunity after siccing their dog on a suspect who had given up. Although the plaintiff provided the court with a case where it had held that police could not allow their dog to bite a suspect who had surrendered by lying on the ground, the court held the case wasn’t similar enough because the plaintiff had surrendered, not by lying on the ground, but by sitting on the ground with his hands up.

Applying these protective standards to the officers, the trial court held that James had guessed the wrong claims to bring against the officers, but even if he had not, the officers were entitled to qualified immunity because they could not have known that stopping, searching, beating and arresting an innocent person violated the Constitution.

Thankfully, the Sixth U.S. Court of Appeals reversed the trial court in every way but one, holding that the officers were not entitled to qualified immunity, but that they had acted under federal authority, not state authority, so James could only pursue them under Bivens—not Section 1983.

Now, the government has asked the U.S. Supreme Court to step in and provide additional protections for the officers—immunizing them from liability under a new interpretation of the Federal Tort Claims Act. At the same time, James has asked the U.S. Supreme Court to reject the government’s new arguments for immunity and end to the shell game that allows officers to violate the Constitution without consequence.

Litigation Team

Institute for Justice Attorneys Patrick Jaicomo, Anya Bidwell and Keith Neely represent James King. They are assisted by local counsel D. Andrew Portinga.

The Institute for Justice

Founded in 1991, the Institute for Justice is the national law firm for liberty and the nation’s leading advocate for private property rights, economic liberty, free speech and educational choice. IJ is dedicated to fighting judge-made rules that make it extremely difficult to hold government officials accountable for violating the Constitution. IJ’s efforts include direct lawsuits against government officials, appellate friend-of-the-court briefs in support of individuals who suffered at the hands of government officials, and outreach to members of the public who want to know more about the difficulties of holding government officials accountable. IJ does all this because of its fundamental belief that following the Constitution means being held accountable for violating it. The judge-made rules that allow government officials to violate the U.S. Constitution without consequence have no place in our constitutional Republic.

The Institute for Justice’s Project on Immunity and Accountability

IJ is litigating the following qualified immunity cases:

• West v. Winfield, in which the police destroyed a family’s home in search of a shoplifter.
• Lech v. City of Greenwood, in which the police destroyed a woman’s home with grenades after she had given them the key to the front door and permission to enter in their search of a fugitive, who was not in the home.

IJ files briefs in support of individuals who suffered at the hands of government officials:

• Hernandez v. Mesa Jr. amicus brief (Read this brief to learn more about the storied history of holding government officials accountable for constitutional violations by imposing damages.)
• JKJ v. Polk County amicus brief (Read this brief, in which IJ successfully urges the Seventh U.S. Circuit Court of Appeals to rehear a case against a county whose prison officials sexually assaulted female prisoners.)
• Frasier v. Denver Police Officers amicus brief (Read this brief to learn more about the legal test for qualified immunity in the context of a fascinating fact pattern: After a bystander recorded police officers using excessive force in the performance of their official duties, these officers tried to silence the bystander by attempting to delete his recording.)
• Tanvir v. Tanzin (A case in which three Muslim men refused to serve as informants, leading FBI agents to place them on the “no fly” list.  The 2^ndS. Circuit Court of Appeals ruled the men could sue the officers for damages under the Religious Freedom Restoration Act, a federal law enacted to protect religious liberty. Jessop v. City of Fresno (Fresno, California police seize cash pursuant to a search warrant, then gave property owners an inventory sheet stating they seized $50,000. The defendant claimed the police actually seized $276,000 and stole the difference.  The 9^th U.S. Circuit Court of Appeals ruled it isn’t clearly established that police can’t steal things they’ve seized with a search warrant, so they get qualified immunity.)

IJ educates the public about these injustices:

• Short Circuit (Listen to America’s foremost experts on qualified immunity in this special episode of IJ’s Short Circuit podcast.)
• Is Qualified Immunity Unlawful? by Will Baude (Read this highly acclaimed paper that disposes of the main legal justifications for imposing qualified immunity.)
• The Case Against Qualified Immunity by Joanna Schwartz (Read this remarkable paper that provides compelling empirical evidence undermining policy justifications for imposing qualified immunity.)
• Rethinking Bivens: Legitimacy and Constitutional Adjudication by Jim Pfander (Read this paper that advocates for allowing individuals whose constitutional rights were violated to sue federal officers in federal court.)
• State Law, the Westfall Act, and the Nature of the Bivens Question by Carlos Manuel Vazquez and Stephen I. Vladeck (Read this groundbreaking paper on this nation’s storied history and tradition of holding federal officers accountable for violations of constitutional rights by suing them for damages under common law.)

For more information on this case, visit: https://ij.org/case/brownback-v-king/.

[1] 42 U.S.C. § 1983

[2] Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971)

[3] 28 U.S.C. § 1346