Members of Congress, Scholars & Advocates Urge High Court Not to Create Loophole for Government Officials Seeking to Escape Accountability

John Kramer
John Kramer · October 21, 2020

Arlington, Va.Brownback v. King, a case in which the government is seeking to create a huge new loophole through which government workers can escape accountability when they violate someone’s constitutional rights, will be argued before the U.S. Supreme Court on Monday, November 9, 2020. In anticipation of that argument, scholars, public interest advocates and members of Congress have submitted friend-of-the-court briefs urging the justices to reject the government’s effort to prevent those whose rights have been violated from ever having their day in court.

The case centers on James King, an innocent college student unreasonably misidentified as a non-violent fugitive by plainclothes members of a joint state-federal task force and then mercilessly beaten, choked unconscious and hospitalized for his injuries. Six years after the beating, the government continues to prevent James from ever having his case against the officers argued in a court of law.

At the heart of the dispute is the U.S. Solicitor General’s assertion that because James brought two sets of claims in the trial court—one for constitutional violations by the officers and another against the United States as the employer of these officers—his constitutional claims cannot be pursued against the officers because the claims against the government were dismissed by the court. This radical interpretation of the Federal Tort Claims Act (FTCA) is especially galling when one considers that the FTCA was enacted to make it easier—not more difficult—for plaintiffs to recover for violations of their rights. But the Solicitor General now seeks to weaponize the FTCA against people like James, thus ensuring rogue officers like those who beat James can escape accountability.

In addition to the Institute for Justice’s brief filed on behalf of James, several amicus briefs have also been filed by leading members of Congress, legal scholars and public interest advocates on James’ behalf. These include:

  • A brief on behalf of members of Congress argues that Congress passed the Federal Tort Claims Act to allow individuals to sue the United States as means for recovering for violations of constitutional rights by its employees. The government’s interpretation of the Federal Tort Claims Act would circumvent this foundational principle and the very reason for the passage of the act.
  • A brief on behalf of the Law Enforcement Action Partnership, a nonprofit organization whose members include police, prosecutors, judges, corrections officers and other law enforcement officials, argues that the government’s interpretation of the Federal Tort Claims Act is inconsistent with common law. Furthermore, according to the brief, the government’s interpretation would further undermine trust between law enforcement and the public—the last thing we need in these unsettling times.
  • A brief that crosses philosophical boundaries on behalf of Cato and the National Police Accountability Project argues that a two-track system of accountability for federal versus state officials already exists—it is much more difficult to hold federal officials accountable for violations of constitutional rights. The government’s interpretation of the Federal Tort Claims Act would further widen the gap between the two regimes and cause an even greater proliferation of federal-state task forces, which is a mechanism invented to allow state officers to take advantage of the more permissive federal regime.
  • Briefs by the ACLU and the Public Citizen provide outstanding textual analyses of the Federal Tort Claims Act’s relevant provisions, as well as trace these provisions’ roots to the common law. The briefs are clear: Both the text of the Federal Tort Claims Act and its reliance on the common law principle of res judicata support James’s argument that he should be allowed his day in court.
  • A brief by Professors James E. Pfander, Gregory C. Sisk and Zachary D. Clopton—leading experts on the Federal Tort Claims Act—provides the Court with a sophisticated analysis of text, history and context of the Federal Tort Claims Act and argues that all three weigh heavily in favor of James King and against the government’s position.

“We are grateful for the support of all these outstanding groups and individuals,” said President and General Counsel of the Institute for Justice Scott Bullock. “Their briefs make it clear that the government is taking an extreme position in this case, and its unorthodox reading of the Federal Tort Claims Act should be rejected. James must be allowed his day in court.”

James King shared his story in this brief video produced by the Institute for Justice.

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[NOTE:        To arrange interviews on this subject, journalists may call John Kramer, IJ’s vice president for communications, at (703) 682-9320 ext. 205. More information on the case is available at:]