Legal Docket: Brownback v King - S2.E1

MARY REICHARD, HOST: July 18, 2014.

911 CALL:
DISPATCHER: 911 emergency
BYSTANDER: They’re pounding him in the head! They’re going to kill this man.

This man is 21-year-old James King. He’s on the ground. Two older men are beating him up. He’s fighting back. Police answer the 911 call and arrive moments later. And they question King.

POLICE: Do you have any weapons on you at all?
KING: No, sir! I thought they were trying to mug me.
POLICE: Stay on your stomach. Stay on your stomach.
KING: Please God! Be real police.

Did you catch that? King said, “Please God, be real police.” Because he’d just learned that the two older men who beat him up were also “real police.” FBI agents in plain clothes, unshaven, wearing baseball caps.

Those agents say they mistook the dark-eyed, dark-haired King for a guy with blue eyes and blonde hair, five years older. If you compare photos of the two men, they look nothing alike. The suspect’s name was Aaron Davison; James told them his name was James.

But when uniformed police arrived at the scene, the suspicion remained focused on King.

POLICE: Stay on your stomach. (noise) Do you have a mental condition?
KING: No, sir.
POLICE: Bipolar?
KING: No, sir.
POLICE: Taking medication for anything?
KING:No sir.
POLICE: Have you taken any drugs today, dude?
KING: No sir. Just on my way, got out of work early for the weekend. Please guys, is he a real police?
POLICE: We have an ambulance coming.
KING: Can you loosen these please?
POLICE: Not right now, hold on a second ok?
KING: (MOANING)

This is the story of an innocent man beaten by FBI agents who had the wrong guy. But the officers were not held to account for it. Worse, prosecutors charged James King for assaulting an officer and resisting arrest. But 9 months later, a jury acquitted King on all counts.

King then sued the agents and the U.S. government for violating his rights. That case went all the way to the U.S. Supreme Court. Where he lost...for now.

THEME MUSIC

JENNY ROUGH, HOST: Today, a case of dramatic facts, an obvious wrong, tangled up in confusing laws.

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MR: James King is now 28 years old. The beating took place seven years ago. Jenny and I caught up with him at his modest and tidy rental home in Grand Rapids. It’s a beautiful, crisp day in early spring.

KING: Hi, there! Come on in. I’ve got a little dog. She’s nice. (barks)
MR: Should we take off our masks?
KING: Yes.  I’m James.
MR: Hi, James.
JR: I’m Jenny.
KING: Hi, Jenny. Nice to meet you.
MR: Cute place!

MR: We settle into his living room where there’s a wall of bookshelves and a corner grow light with lots of lush plants under it. Luna, his long-hair Dachshund, lies down next to me. After some initial chit-chat, I ask King to introduce himself.

KING: I am James King. I live here in Grand Rapids, Michigan. I’m an information security consultant. I live at home with a dog and I like plants and I like good coffee.

JR: You heard he’s an information security consultant. What he calls an ethical hacker! Ever since he was a boy, he’s been passionate about science, technology, and mathematics.

KING: I remember my grandmother. She gave me an Apple Lisa. And I think I was the first person in my town to have a computer. So that automatically made me cool for at least a little while. I think it was all downhill from there. But I had my moment. (laughs)

JR: King’s not only a man of the mind, though.

KING: I’m athletic. I like to play sports, climb and run, and do all those other things. I'm a dog lover, big time gardener. I think that might be one of my best skills in life, which is funny because I just got a new job recently. Um, and they're a big, big corporation, like 3000 people. And I immediately got asked about gardening questions from like five separate people, and I’m like I don't know how the word got out, but I think it's pretty funny.

MR: King’s demeanor is understated and calm. He gives lots of eye contact. I can sense his small-town sensibilities. The town where he grew up didn’t even have a stoplight, he told us. Only fifteen students in his high school graduating class.

JR: You asked him if he thought he was his mom’s favorite.

KING: I think so. I think if my siblings listen to this, they would agree. (laughs)

MR: Had he been in trouble with the law? He said no. Well, aside from a few traffic tickets. Then we got to “that day.” When the course of his life changed forever. We decided to go to the scene where it happened.

AMBI: LEONARD STREET

JR: Leonard Street NW, near Tamarack Avenue. A fairly busy intersection. Restaurants, a bike shop, a tax prep service, a church all nearby. As King tells it, he was walking along the sidewalk on his way to get a haircut.

KING: That’s my barber...And that’s where I was walking to. So, very close. I almost made it.

MR: Almost made it.

KING: And right here was where I had headphones in and I was going to call my sister. And so I had both headphones in when they approached me and then I took one out. So I was a little bit distracted. And then that was when they asked, like, who are you? And I said, I told them who I was and that wasn't good enough for them and said, is that, oh, is that really your name? And then they asked me to step toward them.

JR: King didn’t think anything of it at this point. He was young, maybe a little naive.

KING: There was only a single, unmarked black SUV and they were not uniformed, right? They were plain clothes, backwards ball caps, you know, they looked like just random street guys.

MR: King is 5’9”. These guys? Much bigger. He stepped toward them as they’d asked him to.

KING: And I'm like, yeah, so what's up. And they said, is that your real name? I said, yeah, that's my real name. And then they said, do you have your wallet on you? Do you have your identification? And I was like, okay, now I'm feeling weird. Right. Cause they just kind of brought me towards them and then asked about my wallet. And I'm like, no, I don't have it. You know, I did, but I wasn't about to admit that.

MR: Things happened quickly. One of the men stepped behind King, boxed him out, and next thing he knew, King was pinned against their vehicle.

KING: And then all the alarms raised in my head, I was like, okay, something really bad's going on here. And the guy behind me said, Oh yeah, what's this?'' And he took my wallet from my pants. And then I was like, Oh, I'm being mugged. Okay. I get it. So that was when I ran, I just took off, ran immediately. I made it about two steps before I was tackled. And then I was trying to get away and they were just, the fight broke out from there.

JR: Witnesses began to gather, and some called 9-1-1.

KING: And then I went to just bolt this way. I ran this way and I made it to basically right in the middle of this grass, right in front of the church, where they ultimately choked me. I was blacked out and they punched me in the head until I couldn't see anymore.

JR: One of the agents put him in a chokehold from behind until King lost consciousness. When he came to, he bit the arm of the man choking him. Meanwhile, as local police arrived, witnesses gave their accounts.

UNKNOWN PERSON: Are you alright?
BYSTANDER: No, he’s not alright! They were pounding him in the head. They were being brutal.

MR: King describes that moment when he knew witnesses had called for help. He’d been yelling for help, for someone to call the police.

KING: Um, and man, was it a shock when the actual police showed up and I was elated because I was like, I was like, I'm going to live. Right. That was my first thought. And then they arrest me. Like, I was placed in handcuffs. And I was just, you know, imagine that frame of mind where you think, cause I thought that those guys are gonna get arrested and I thought, okay, well I think this is the craziest thing that's ever happened to me, but I'm going to make it, I'm going to live. And then it got crazier from there.

MR: One of the police officers who arrived on the scene, asked witnesses to delete videos of the fight. Ostensibly to keep secret the identities of the undercover agents.

MORRIS: We have some undercover officers that do not need their pictures taken.
WITNESS: Oh, ok.
MORRIS: So can you delete that?
WITNESS: Yea.
MORRIS: This is for officer safety.
WITNESS: Yeah, for sure.
MORRIS: For sure, for sure. Can you delete it?
WITNESS: Yeah. I got one more I’m deleting.

JR: Paramedics took King to the hospital where he was treated for facial injuries. Then he was booked into the Kent County Jail where he spent three days and two nights. His face was swollen to where you couldn't recognize him, and his eyes were black and blue. The judge set bail at $50,000.

MR: Everything happened so fast, in such an unexpected way. King called his dad:

AUTOMATED CALL: Hello, this is a prepaid, collect call from…
KING: James.
AUTOMATED CALL: ...an inmate at Kent County Correctional Facility.
DAD: Hello.
KING: Hey. We got one minute
DAD: We got one minute.
KING: We’re gettin’ screwed. I’m going to prison, I mean…
DAD: No, don’t think that. We’re gonna get a bondsman and get you outta there.
KING: It’s $50,000!
DAD: I know.
KING: This is bad. This is really bad.
DAD: I know. I can’t believe it. (sighs) We’re gonna do something.
AUTOMATED CALL: Thank you for using Securus. Goodbye.

MR: King’s family is not rich. His dad works for the state of Michigan as a materials inspector. His mom took care of their home and five children. King now thinks of that phone call with his dad with gratitude.

KING: I can't imagine how broken he must've felt. But he just, he said, he says, it doesn't matter. It's going to be okay, we're going to come down. We're going to get this sorted out. We're going to help you. Right. I was in tears over the phone and he held it together.

MR: Held it together, hired a lawyer and went to trial. The prosecution offered a plea bargain to King. He refused. He said it would be lying.

KING: I said, no, I didn't, I didn't do anything wrong. Why would I say I did? That's lying. That's immoral.

JR: After a two-day criminal trial for resisting arrest and assaulting an officer, in February, 2015, the jury acquitted James King on all counts. He’d done nothing wrong in the eyes of the jury.

One of the jurors later said that the testimonies of the two agents just didn’t line up. She explains the jury’s reasoning: as one example, one agent testified he hadn’t taken King’s wallet, the other agent said he did take it.

JUROR: Part of what convinced us as well was that we had dash cam video from when a uniformed officer in a marked police car arrived at the scene. James King immediately, his tone was polite. It was: “Officer, are these guys really police officers? I thought they were mugging me. Officer, what's going on?”

MR: And that’s not all this juror thought.

JUROR: When I left the trial as a juror as I emotionally processed this was -- I can't believe that our government resources went into prosecuting this kid and nothing has gone into prosecuting or even disciplining as far as I know this police officer. It seemed totally upside down to me. As a citizen, I felt betrayed. As a taxpayer, I felt betrayed.

MR: What about disciplining the agents? Well, I reached out to get the other side of this story. I tried tracking down the FBI agents. Nothing. The Grand Rapids Police Department didn’t respond to emails or calls. Neither did the federal government through the Department of Justice that argued the case on behalf of the officers at the Supreme Court. They’ve not commented on this case to the media anywhere that I can find.

JR: So we will tell their side as best we can, using what they said under oath during the trial. They testified that they announced who they were to King right off the bat. They said King didn’t produce identification, he didn’t answer their questions, he ran from them, he bit the arm of the man who was choking him around the neck. He hit one of the agents with his handcuffs.

The agents weren’t malicious; the agents were mistaken. From their viewpoint, King resisted them, and they defended themselves. And for that, King was arrested and charged with crimes.

MR: Obviously, the jury didn’t believe the agents. Hence, King’s acquittal. But King had damages. He’d endured a beating. He had emotional trauma. He’d been jailed and lost his liberty. His family lost money on medical and legal costs. He’d been dragged through a trial. He says that his felony records have cost him job opportunities.

JR: Seeking justice, King sued the FBI agents and the federal government in civil court for violating his rights. King alleged the agents’ violated his Fourth Amendment rights through the use of excessive force and unreasonable seizure. He also sued the United States under the Federal Tort Claims Act, the F-T-C-A. That law lets private parties sue the federal government for wrongs under civil law committed by someone acting on behalf of the United States. Historically, citizens couldn’t sue the government because the government has sovereign immunity.

We’ll get into those laws in more detail later on. But that’s what this Supreme Court case is about—King’s civil trial against the U.S. government and the individuals agents.

MR: This is where the fairly straight forward facts get tangled up with different strands of law that make it like a gnarly constrictor knot. Very difficult to undo. In fact, here’s how King’s lawyer, Patrick Jaicomo described it:

JAICOMO: I mean, it really is a milkshake that someone poured a spoonful of bleach into because, you know, the district court kind of mashed everything together.

MR: The district court is the first court that heard King’s lawsuit against the agents and the government. To the surprise of many, the district court dismissed his case!

JR: Why? The court said it had no jurisdiction to hear the FTCA claim, because King didn’t lay out that the officers acted with malice. And the court granted summary judgment to the agents based on qualified immunity. So both claims failed: the one against the United States, and the one against the individual agents.

JAICOMO: Because they’re shielded by qualified immunity which is something that everyone’s been talking about lately. And in the broadest possible strokes, qualified immunity is a doctrine the Supreme court created in 1982 that creates a default immunity for all government workers, state and federal, unless a person suing them can point to an earlier court case in their jurisdiction involving essentially identical facts. Only then can the case go forward.

MR: So that’s one aspect of why King lost. He couldn’t find another case exactly like his—in his jurisdiction—where an officer was held liable for doing the same thing. That can result in outcomes like this:

JAICOMO: There’s a case this year from the 6th Circuit where police officers allowed their dog to bite a suspect who’d given up. And the suspect pointed to a case where the officers had allowed their dog to bite a suspect who’d given up, and said, this case is clearly established. This is a violation of my rights. The 6th Circuit said, well, actually it isn’t because in that case the suspect was laying on the ground when he gave up and in your case you were just sitting on the ground with your hands up. So the officer couldn’t have known that was a constitutional violation.

JR: Now back to the FTCA claim we mentioned earlier. The initialism for the Federal Tort Claims Act. Passed in 1946. Jaicomo elaborates:

JAICOMO: The Federal Tort Claims Act, which is the act that waives sovereign immunity for certain torts. And then when you do that, you're actually suing the United States. You're saying the United States employs someone. That someone while doing business for the United States hurt me. And so I can sue the United States and ask for damages.

MR: It’s helpful to understand why Congress passed that law in the first place. What problem was Congress trying to solve? I called up law professor Gregory Sisk from the University of St. Thomas in Minnesota. He’s an expert in litigation that involves the government.

Sisk uses a car accident to illustrate who can sue whom. And he does that with an interesting cast of characters: Dudley and Priscilla. Dudley delivers pizza for Bob’s Pizza Emporium.

SISK: And so Dudley is an employee of Bob's Pizza Emporium and he's driving a car, and he ends up in an intersection accident. And Priscilla, the other driver, is injured. And she claims that it was an episode of road rage that Dudley thought she had cut him off. And so he then deliberately sideswiped her car forcing her off the road to be injured.

JR: So in this scenario there’s no government involvement. It’s clear that Priscilla can sue Dudley in state court. She may also be able to sue Bob’s Pizza Emporium. He’ll have deeper pockets than the driver in all likelihood. So let’s presume she went after the deeper pockets, the business.

SISK: So anyway, let's say that the trial ends with the jury concluding that the facts are in fact, the opposite of what she alleged, that she's the one who initiated the road rage episode and that Dudley was completely innocent of any wrongdoing, and returns a verdict for the defendant.

Now, if Priscilla's lawyer said, well, let's take another run at it by suing Dudley individually, your instinct should be that just doesn't seem fair. They've already had a chance to litigate what exactly happened here factually. They lost on the merits against Bob's. They shouldn't be allowed to get a second bite at the apple by suing Dudley individually. And your instinct that that can't happen today is correct.

MR: Not permitted, also known as issue preclusion. Or another phrase, judgment bar. Priscilla can’t lose against Dudley’s employer and then take another go at it by suing Dudley. She’s precluded from doing that. It didn’t used to be that way. This has a tortuous history that we’ll spare you here. Suffice it to say that different states had different rules about who and when you could sue arising out of the same facts.

JR: Here’s scenario number two from Professor Sisk:

SISK: Now, let's take it one step further, where it gets more complicated. We'll say that Dudley, is an employee of the United States Postal Service driving a postal truck. Everything happens as before...now everything changes dramatically. It gets much more complicated.

MR: So now we suppose that Dudley’s a quasi-federal employee. Seventy-five years ago, Priscilla could only sue Dudley directly under state law, say for assault and battery. She could not sue the US government, even though Dudley drove a government vehicle when he hit her. That’s because the government hadn’t agreed to be sued. In other words, the government had sovereign immunity from lawsuits like this one.

JR: So back then, to get money out of the federal government for her injuries, Priscilla would have to go to her congressman. She’d ask him to introduce a private bill on her behalf. And it would go through committees in Congress to see if she deserved compensation.

SISK: But that was a process under the legislative branch. It's one of the reasons the Federal Claims Act was enacted- is that Congress got tired of doing that all the time and thought, you know, these really are the sorts of things that courts are designed to do to decide what happened factually, and how much money should be paid and when. We'd rather they do that.

MR: And now we understand why in 1946 Congress enacted the Federal Tort Claims Act. Congress wanted to offload some work to the courts. It waived sovereign immunity for certain claims against the US government.

So now, Priscilla could sue the government for certain actions, under the FTCA. She could also sue the employee under state law. And all worked out well particularly for cases of negligence.

I spoke to another law professor, James Pfander from Northwestern University. He’s made a career of studying government accountability.

PFANDER: So that would protect the officer who acted in good faith, such that the officer would not be held personally accountable for actions taken in the course and scope of duty. But it would also ensure that the individual recovered compensation for the wrong that had occurred. And ultimately it assigned the cost of the violation of rights to the party best capable of bearing that cost: the federal government. So it's a system of government accountability that actually works pretty well in assigning responsibility, ultimate responsibility to the proper party, the federal government and protecting officers when they act in good faith.

JR: But what about when an officer doesn’t act in good faith? Acts maliciously? Or carelessly? The government might say well, that officer acted outside the scope of employment. So then the government won’t pay.

And then add in another layer: qualified immunity for police and other government officials. These doctrines can come into conflict. For example, Congress put that language into the FTCA about a judgment bar, a preclusion clause. Again, Gregory Sisk:

SISK: And so the judgment bar then says, if you bring a tort claim against the United States under the FTCA...if there is a judgment entered against you as the plaintiff, you may not bring a suit against the individual employee based on the same subject matter. It was designed to resolve that problem that existed in 1946.

MR: Think back to the hypothetical about Dudley, the postal driver who crashed into Priscilla. What the professor is saying here is that before 1946, she couldn’t sue the United States, only Dudley the truck driver. So the FTCA came along and said, the United States agrees to let you sue for the actions of its employees in certain situations.

So it made sense for the judgment bar to come in and say, hey, you already got a judgment under the FTCA, so that’s it. You don’t get to keep suing over the same subject matter.

But here’s where James King, our young man from Michigan, got caught up. He sued under different legal theories, including the FTCA. So when the district court threw out his FTCA claim, that court said it triggered that judgment bar and at the same time, blocked his other legal claims, too.

JR: He’s in a no-man’s land. He’s just as flummoxed by the state of things as you might be.

KING: And you know, I've read the briefs, I've looked up into this, I've talked to my attorneys and I still barely understand it…And I think it's, you know, some of these doctrines just kind of got out of hand and were badly legislated from the beginning. Um, to the point now where there's really no other option, but to either reform or abolish some of these doctrines so that people can seek justice.

MR: Let’s revisit what happened to King.

Two people injured him: one a federal worker and the other a state worker. Together they made up a joint, federal and state task force. That’s why he sued the US government under the FTCA. And that’s why he also sued the individual agents for violating his civil rights under what’s called a Bivens claim. That came about from a case of the same name in 1971 that allows you to sue federal officials for civil rights violations and get money damages for it.

Again law professor Pfander, who says that’s created a toxic stew of laws.

PFANDER: Well, it turns out that Bivens has not been a very effective right of action in recent years. It's been dramatically restricted by the Supreme court. A number of exceptions have been recognized under the FTCA. And that means that in many instances, individuals don't have a right of action either at common law or under the Bivens doctrine or under the FTCA. And so it's a combination of events, some the result of judicial interpretation, some the result of legislative intervention, but the combination makes it very difficult for individuals to secure a remedy.

JR: A case of too many cooks in the kitchen, you could say. Courts, Congress, exceptions, and exceptions to exceptions.

Professor Sisk explains how things came to a head:

SISK: And then the lower federal courts began to say, well, there's still this judgment bar language in the FTCA. So if you file suit against the United States under the FTCA, and lose for any reason at all, that bars you from continuing the lawsuit against the individual employee under Bivens. And the question is, is that what the judgment bar means?

JR: And that’s where we are today. Arguing over what “judgment bar” really means. Does it mean to bar lawsuits brought one after the other against the government and the individual employee? Or does it mean to bar different claims that might be brought under different legal theories? Creative lawyering might be the culprit:

SISK: But lawyers and judges like to grab a hold of language and statutes and apply them in new contexts that no one ever thought about.

MR: By the time James King’s case reached the Supreme Court, the legal question had gotten quite narrow: what does the FTCA’s language really mean? Is King’s case forever foreclosed because a lower court found he didn’t meet the terms of laying out his case for suing under the FTCA? What about his other claims against the individual agents? Do they get qualified immunity?

That’s what everyone wanted to find out. We go back now to November 2020, a time when the Supreme Court conducted arguments by phone.

ROBERTS: We will hear argument next in Case 19-546, Brownback versus King.

MR: The FTCA says a judgment in an FTCA case shall bar “any judgment by the claimant” involving the same subject matter against the federal employee whose act gave rise to the claim. So that plain language is what the lawyer for the agents pounded on. Here’s lawyer Michael Huston:

HUSTON: This court has held repeatedly in interpreting the FTCA that the text means what it says and in particular the word “any” really does mean “any.” No exceptions. And so I think that all the court has to do is say the language of this statute is intentionally and exceptionally broad.

JR: He argued that King already got his chance. That’s it. The judgment bar means King needs to pick between available remedies. Either Bivens, or FTCA. Not both. Besides, precedent is on the side of the officers.

HUSTON: In the 70 years since the judgment bar was enacted the Courts of Appeals have overwhelmingly rejected this argument and that’s because it directly conflicts with Congress’ purpose. The rule that respondent advocates would permit a plaintiff to sue the United States and win and then continue pursuing individual government employees for additional relief just because he brought his two actions together in the same lawsuit. That is exactly the result the Congress created the judgment bar to prevent

MR: King’s lawyer, Patrick Jaicomo, argued that’s not what happened here. King hasn’t won anything. The matter has not been decided. And that’s not how these laws are meant to interact. In fact, a 1980 Supreme Court decision Carlson v Green says it’s “crystal clear that Congress views FTCA and Bivens as parallel, complementary causes of action.”

You’ll hear Jaicomo use the term res judicata. That means “the matter is decided.”

JAICOMO: Embedded in Congress's enactment of the FTCA and its judgment bar, is a very simple common law doctrine that has been with litigants since the beginning of this country, which is the concept of res judicata. The primary basis for res judicata is that it only applies to a separate lawsuit. This Court has said so on many occasions. And that it only applies once a judgment has been entered on the merits by a Court with jurisdiction.

JR: King brought one lawsuit with different theories, and nothing’s been decided on the merits because we’re still arguing over what “judgment bar” means. During oral argument, Justice Clarence Thomas seemed to agree with Huston’s argument that “any” means “any.” He asked King’s lawyer, Jaicomo, about that.

THOMAS: Counsel, why should we even consider your argument that the judgment bar doesn’t apply when the claims are brought together?
JAICOMO: For several reasons, Your Honor...

JR: He answered that the reasons are embedded in the question before the Court. The explicit question of whether “any”means “any” may not be before the court, but it is certainly implied and needs to be resolved. Jaicomo argued, no time like the present. The argument seemed to be going against Jaicomo and King. But Justice Sonia Sotomayor seemed to throw Jaicomo a lifeline.

SOTOMAYOR: What the government is encouraging plaintiffs to do is to file their Bivens claims first, win or lose, then file their FTCA claims and hope that they’ve won and that we don’t put a bar in. That seems somewhat time-consuming…it also makes a difference whether a district court decides whether it's going to decide the Bivens claims first and just say I don’t need to decide the FTCA claims. Or try both claims together, win both, give judgment on both, and then go on appeal. There seems variations that are very inefficient. Am I right about that?
JAICOMO: Yes, Your Honor.

MR: Jaicomo told me that in a typical lawsuit, you plead all the claims you have. That’s why he brought the FTCA claim along with the others. Up until this case, he says, the judgment bar had never been applied in the way the government advocates in this case. Which explains why the case wound up at the highest court in the land. And here’s where the rarified air of the highest court in the land issued a unanimous decision on a very technical aspect of the law.

JR: All nine justices agreed that when the district court first dismissed King’s FTCA claim, it triggered the judgment bar. He didn’t lay out all the elements of the FTCA claim, which included the element of malicious intent. Remember, the agents said it was a mistake, not malice, that led them to James King that day in 2014. Therefore, the high court reasoned that this is a decision on the merits, and the judgment bar applies.

But wait, you say. The Supreme Court didn’t decide whether the agents harmed James King. And you’re right. Because that wasn’t the question before the Supreme Court. Jaicomo reacted to the news.

JAICOMO: Yeah, it's definitely not good news. This decision is a unanimous siding with the government, but luckily for James King and for our position in this case, this wasn't a total victory for the government...Instead what the Supreme court did was remand the case back to the Sixth Circuit for it to decide another issue. And if James prevails on that, then his case can finally move forward toward a jury.

MR: So that’s what’s next: back to the Sixth Circuit. The issue now is whether the judgment bar can be applied to claims brought in a single lawsuit. Both the justices you heard in oral argument—Justices Thomas and Sotomayor—provided a roadmap for the Sixth circuit to follow. Again, Jaicomo:

JAICOMO: Because that's not how res judicata works. It leaves for the Sixth Circuit to decide that issue, but in a concurrence by Justice Sotomayor, she really fleshes out this issue and explains the arguments that we made in our briefing and goes in great detail through these issues as a way to prime this issue for the Sixth Circuit. But also to highlight as we argued in our briefing that most of the courts that have sided with the government on this issue...didn't ever actually engage with the substance of analysis of the language or the history of res judicata and how that applies in the judgment bar.

MR: Pfander the law professor agrees with Justice Sotomayor. The question is whether the 6th Circuit will see it the same way.

PFANDER: And so her understanding of the FTCA, I think, is more consistent with the ideas that Congress had in mind when it put the statute in place in the 1940s, so her opinion in the James King case is no different really. It's also, an opinion that I think sees a role for government accountability under the Federal Tort Claims Act and, and views with some suspicion the sorts of exceptions that the government has often tried to get the court to adopt.

JR: All this comes back around to, “how is this fair?” How can a young man walking down the street get beaten up in a case of mistaken identity, and seven years later, he’s still received no justice?

For most of our time today, we’ve been tangled up in legal technicalities to explain why James King still hasn’t received his day in court. Lurking in the background is the qualified immunity government officials have. It’s not limited to police; qualified immunity applies to all government officials: judges, firefighters, teachers, governors, legislators. And it’s important to note it only applies to civil matters, not crimes.

MR: Yet we hear so much more about qualified immunity for police because the nature of that job involves frequent confrontation. And ever since the death of George Floyd under the knee of a police officer, qualified immunity’s been in the forefront of public consciousness.

King’s case has no element of racial injustice in it. He’s white. The officers were all white. Lawyers and professors I spoke to say it’s not so simple to just get rid of qualified immunity.

One person in the know is Judge David Erickson, a retired appellate court judge in Chicago. I reminded him of the facts of James King’s case.

ERICKSON: In terms of that case? Egregious. But if you change the world for that egregious case, I don't know how that affects law enforcement across the country. And I still know this. As simplistic and as cliched as it sounds: that we don't ask anyone in America whether civilian or quasi- civilian, the police, other than the military, to run to the gunfire. We don't ask anyone to do that. Everyone else gets to go the other way.

JR: Judge Erickson agrees reform is needed, but the unpleasant reality is sometimes things don’t work out the way we want. But he warned against throwing the baby out with the bathwater.

MR: Which led me back to the question of how to avoid that. So that people like James King can get justice.

For Professor Pfander, we must start with the basics: for every right, there must be a remedy.

PFANDER: And that's a principle of law, an aspiration in some ways, and a kind of element of the common law framework that the founders relied upon as...the primary vehicle for...ensuring government accountability.

MR: Jaicomo, King’s lawyer, says that’s why this case is so important. Because when all is said and done, it will either guarantee that plaintiffs can use the two laws as complementary ways to get constitutional accountability, or it will be another piece of evidence that our justice system is just a shell game set up to benefit the government.

JR: So that leaves us with a very unsatisfying ending. Law enforcement is a gritty, dangerous job that needs some protections for the people who do that job. Yet a man acquitted of all charges against him and who has still not seen a penny of recompense for the injuries he sustained offends our sense of fundamental fairness. James King isn’t giving up.

KING: I would love plain and simple. I would love if we could abolish or rewrite qualified immunity, because it is a flawed doctrine that, you know, as a, as a private citizen of this country, if someone violates my constitutional rights, I should be able to bring that in front of a jury and say, did they, did they do that? Did they violate my rights? And I don't have that right. Fundamentally right now because of this qualified immunity doctrine.

MR: James King calls himself “lucky.” After all, he didn’t have to accept a plea deal; he had family support. He wasn’t jailed for years for something he didn’t do. And he wasn’t killed. His definition of lucky. Others might call it Providential.

And even though his long and winding legal road isn’t over, he’s matured to be circumspect about everything, as he told us in the car.

KING: It hasn’t been about me for a while. Because there’s an interesting concept I learned about years afterward. What psychologists call Post Traumatic Growth. So it’s basically the opposite of Post Traumatic Stress Disorder. Where, like, you have a feeling of your life’s purpose or a sense of who you really are after a very traumatic event. And I think that’s what I’ve gone through. And it’s like I feel in a lot of ways okay. But I know that, like, the issue isn’t about how I feel. It’s about the issue.

MR: Legal Docket is produced by the creative team at WORLD Radio. I’m Mary Reichard.

JR: And I’m Jenny Rough. We’re the hosts each week.

MR: Our script editor is Nick Eicher. Technical engineer is Rich Roszel, and our producer is Paul Butler.

JR: Source material in this episode included Bound by Oath, a podcast from the Institute of Justice and oral arguments from SupremeCourt.gov.

MR: Thanks to Patrick Jaicomo, James Pfander, Gregory Sisk and Judge David Erickson. And a very special thanks to James King for spending a Saturday with us to tell his story first hand.

JR: We’ve been so encouraged by the ratings and reviews you’ve left for us! We’re a small team competing with some really big players!

MR: So if you haven’t left a review yet on whatever platform you use, would you consider doing that right now? It helps others find us, and gets the word out about this very special podcast.

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