University of St. Thomas School of Law Professor Gregory Sisk has filed an amicus curiae brief with the Supreme Court of the United States in the case of Brownback v. King. The high-profile case will ask the Supreme Court to determine the scope of the “judgment bar” provision of the Federal Tort Claims Act (FTCA) and, in turn, whether or not the respondent, James King, can sue federal law enforcement officers in an effort to hold them accountable for violating his constitutional rights.

School of Law Professor Gregory Sisk

The brief was authored by the Supreme Court practice of Sidley Austin in Washington, D.C., and the Northwestern Supreme Court Practicum, with background research and analysis from Sisk and professors James Pfander and Zachary Clopton of the Northwestern Pritzker School of Law in Chicago.

The brief also was developed with crucial supporting research from now second-year St. Thomas Law student Lauren Gunderson. While Sisk routinely works with first-year students, he says most are not ready to work on a Supreme Court brief as a 1L.

“Lauren exceeded my every expectation in researching the legislative and legal history of the statute and surveying early cases interpreting the statutory language,” Sisk said. “The attorneys working on the case, all of whom have substantial federal court and Supreme Court experience, repeatedly praised the valuable insights offered by her background research.”

Brownback v. King stems from a 2014 excessive force claim in which 21-year-old college student, King, was beaten by police in Grand Rapids, Michigan, after being mistaken for a suspect in a home invasion.

King originally brought claims against police detective Todd Allen and FBI agent Douglas Brownback in 2016 for constitutional claims under both 18 U.S.C. § 1983 and Bivens v. Six Unknown Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), as well as against the federal government itself under the FTCA.

All of the claims were dismissed by a district court; however on appeal, in 2019 the U.S. Court of Appeals for the 6th Circuit said the constitutional claim should proceed under Bivens.

Attorneys for Brownback and Allen then filed a writ of certiorari with the Supreme Court, arguing that the district court’s dismissal of the FTCA claim against the government triggered the judgment bar, which prohibits plaintiffs from bringing additional claims involving the “same subject matter” after a judgment has been issued on the FTCA claim.

2L Lauren Gunderson

While the high court will answer the narrow question regarding the judgment bar, the case raises broader questions about government liability and police accountability.

The brief filed on behalf of Sisk, Pfander and Clopton argues that the statutory judgment bar was designed only to prevent a plaintiff who files a tort suit against the United States and loses on the merits – because the court finds the episode of brutality never occurred or it was entirely the plaintiff’s fault – from bringing the very same assault and battery suit against the individual federal officer. But this statute does not say that, when the government gets the tort suit thrown out on a jurisdictional technicality, that the separate constitutional claim automatically is dismissed as well.

Brownback v. King is set to be argued before the Supreme Court on Nov. 9, 2020.

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