State-federal task forces are out of control - WaPo

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What are they tasked with?

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Opinions: State-federal task forces are out of control, Specialized police forces are often self-funded, report to no one, and can duck lawsuits by playing games with state-federal jurisdiction.

Feb. 14, 2020 at 4:23 p.m. CST

In the summer of 2014, James King, then 21, was on break from Michigan’s Grand Valley State University. That summer he worked two jobs, one installing high-speed Internet cable, and the other at a now-defunct nonprofit called the Geek Group. On Friday, July 18, King was walking from one of those jobs to the other in Grand Rapids, Mich., when he was stopped by two men leaning against a black SUV. It was daytime. The men were wearing street clothes and baseball caps. One was wearing sunglasses.

One of the men asked King for identification. He said he didn’t have any on him. The men then moved toward him, trapping him against the SUV. One reached for and removed his wallet. Thinking he was being mugged, King tried to run. The men grabbed him and threw him to the ground. King cried out for help, asking anyone nearby to call the police. One of the men then put him in a chokehold until he fell unconscious. When King came to, he panicked and bit the man’s arm in an attempt to escape. The men then furiously beat him. One would later say he punched King in the head, "as hard as I could, as fast as I could, and as many times as I could.”

Some passersby did call the police. Others filmed the beating and aftermath. One woman later said she thought she was watching a murder. But when uniformed officers arrived, they discovered that the men who had beaten King were law enforcement. Detective Todd Allen works for the Grand Rapids Police Department. Special agent Douglas Brownback works for the FBI. The uniformed police then asked witnesses if they had filmed the encounter and, if they did, ordered them to delete the videos. Several witnesses said they had no idea the assailants were police until well into the beating.

The two men who attacked King — detective Allen and agent Brownback — were part of a local-federal task force overseen by the FBI. They had mistaken King for a wanted man.

“I a grew up on a farm, in a rural area,” King says. “I was always taught to trust law enforcement, that police officers were the people you turn to when you need help. Now when I think about the police, it’s just fear, uncertainty and doubt.”

After the beating, King was taken to a hospital and handcuffed to his bed. By that point, it should have been clear that King was not the fugitive that the task force was looking for. The task force had a vague description of a white male with glasses between 5 feet, 10 inches and 6 feet, 3 inches, features that would match thousands of people in the Grand Rapid area. The officers relied on a 7-year-old driver’s license photo of the suspect. The suspect was 26 and had light hair; King was 21 and had dark hair.

Nevertheless, after he was treated, King was taken from his hospital bed to a jail cell, where he was held over a weekend before his parents could bail him out. Prosecutors then charged King with assault of a police officer, assault of a police officer causing a bodily injury, and resisting arrest — all felonies. King refused a plea bargain and went to trial. The jury acquitted. After the verdict, one juror hugged King and apologized for what he’d gone through. The criminal trial bankrupted King’s parents.

In the five and a half years since the altercation, King’s search for justice and accountability for the men who beat him has led him through a byzantine tour of the state and federal court system. A lawsuit against a law enforcement officer for civil rights abuses is a massive undertaking with long odds. The upfront costs can be substantial, and the immunities afforded officers and the governments that employ them present major barriers to even getting in front of a jury.

But as King learned, legal remedies are even more elusive when you’re trying to sue members of a joint task force. These task forces blur the lines between a state and federal agencies — and thus jurisdictions. Plaintiffs have to choose the right venue and the right legal action, and they risk having the suit tossed out if they choose badly. Meanwhile, government lawyers can try to win not only on the merits, but through procedural games, claiming whichever jurisdiction is most likely to throw the case off track.

“The government’s use of joint task forces has created an accountability shell game,” says King’s attorney, Patrick Jaicomo from the Institute for Justice. “Federal officers police state law, state officers police federal law, and both can select the state or federal laws and immunities that best suit their purposes. Thanks to the proliferation of task forces, that shell game is now being played in all 50 states.”

Conceived during the Nixon administration, the first multi-jurisdictional forces were assembled in the early 1970s to fight the war on drugs, and they were staffed with a combination of state, federal and local police, the latter often coming from multiple local police agencies. As journalist Dan Baum documents in his 1996 book “Smoke and Mirrors,” Nixon wanted “strike forces” that could kick down doors and put the fear of God into drug offenders without burdensome hurdles like the Fourth Amendment or the separation of powers. Many state officials wanted no part of such aggressive tactics. But by sending federal drug warriors (and money) to work with local cops, these task forces could pick whichever laws — state or federal — afforded them the most power and the least accountability.

The task forces proliferated in the 1980s and 1990s. Today there are hundreds of them, spread across a wide array of law enforcement specialties. In Pittsburgh alone, for example, there’s an Anti-Terrorism Advisory Council, a Crimes Against Children Task Force, an FBI Opioid Task Force, an anti-gang task force, a task force to fight the sale of drugs on the DarkNet, an Opioid Fraud and Abuse Detection Unit, a Pittsburgh Financial Crimes and Electronics Task Force, a Western Pennsylvania Fugitive Task Force, and a Western Pennsylvania Violent Crimes Task Force.

As of 2016, the Drug Enforcement Administration oversaw or participated in 271 anti-drug task forces across the country. The anti-gang and gun enforcement program Project Safe has created another 86 task forces (as of 2018). The U.S. Attorney General overseas 18 task forces through the Organized Crime Drug Enforcement Task Force program. The FBI organizes and participates in 160 separate anti-gang task forces. The U.S. Marshall Service coordinates 60 fugitive apprehension task forces. James King was apprehended by an FBI fugitive task force, independent of those run by the U.S. Marshall Service.

Task forces can be funded with federal grants, contributions from state and local governments, proceeds from asset forfeiture or some combination of the three. They tend to operate outside any single official’s jurisdiction, either officially (that is, there’s no local official who oversees them) or unofficially (a local official is technically in charge, but often gives them free rein).

With little oversight, they have a record of overstepping and misdeeds, from excessive force to shootings, to mistaken raids, to straight up corruption. Here’s an excerpt from a post I wrote in 2017:

In 2009, the Obama Justice Department tried to conduct a cost-benefit study of these task forces. But the study had to be stopped, because the task forces kept little to no records. The authors concluded, “Not only were data insufficient to estimate what task forces accomplished, data were inadequate to even tell what the task forces did as routine work.”

A 2015 study by a marijuana legalization group in Missouri found that state’s task forces routinely used their federal jurisdiction to escape state open-records laws, but then claimed they were state agencies when subjected to a records request under federal law.

They take a similar approach to civil asset forfeiture. In states that have put restrictions on when law enforcement agencies can seize property without a conviction, task forces will claim they’re governed by federal law. In states that give police more power to seize property, they’ll claim state law.

A separate challenge comes when those harmed by rogue officers seek compensation in courts. When a law enforcement officer violates your constitutional rights, you have a number of decisions to make before you can sue, depending on the nature of the violation, where the incident occurred, and for which police agency the officer or officers work.

If all of the officers work for state or local government, you can sue them in federal court under Section 1983 of the U.S. Code, which Congress passed specifically to allow such claims. But with Section 1983 lawsuits, police officers are protected by the doctrine of qualified immunity. To even get in front of a jury, you have to show both that your rights were violated, and that whatever the officers did was a violation under “clearly established law.” The latter is vague enough to create a lot of ambiguity. Moreover, some federal courts have started with the second prong, finding that the allegedly illegal police actions weren’t clearly established as illegal without ever ruling on whether they were, in fact, illegal. Thus, even if the alleged abuse is illegal, that determination never becomes “clearly established.” Still, Section 1983 lawsuits are the best hope for most plaintiffs, and they usually offer the best chance of success.

You could also sue state or local police in state court if your state has a law allowing for lawsuits against state officials for injuries or violations of the state or federal constitution. In such states, you can also request that your federal claims be adjudicated in state court. But most of these laws also include limitations on damages and attorneys’ fees. That not only limits payouts, it also makes it harder to find an attorney willing to take the case.

If your rights were violated by federal officers, you could bring what’s known as a Bivens claim, named after the Supreme Court decision allowing for such lawsuits. But here too, officers are protected by qualified immunity. Damages are also limited under Bivens, as are attorneys’ fees. And, in the years since its decision, the Supreme Court has significantly narrowed the range of cases eligible under Bivens. And though James King’s Fourth Amendment claim is still one of the few types of cases allowed, federal courts have not recognized Bivens claims for alleged violations of the right to free speech or religion, or the rights of detained immigrants.

If the police in question are federal, you can also sue the agency that employs the officers under the Federal Tort Claims Act (FTCA), the law that makes federal agencies liable for torts committed by their employees. The advantage here is that you don’t need to prove a constitutional violation, and there’s no qualified immunity. But the FTCA brings its own brand of complexity, including a requirement to first file an administrative claim that can draw out the lawsuit for months, or even years. An FTCA lawsuit also bars the plaintiff from collecting punitive damages, and plaintiffs aren’t entitled to a jury trial. If you lose an FTCA claim on the merits, you’re also then barred from suing under Bivens.

James King filed his lawsuit in 2016. Because these task forces have a history of invoking both state and federal law when it suits them, King filed claims against under Bivens, the FTCA and Section 1983. He alleged in his suit that the two task force officers had violated his Fourth Amendment rights when they stopped and beat him, and that they then maliciously prosecuted him. He also alleged that they tortiously injured him.

In 2017, a federal district court dismissed all his claims. The reasoning was odd.

The man sought by the task force was wanted for a home burglary in which he’d allegedly stolen some cans and liquor bottles. It was not a federal crime. It was a violation of Michigan law, committed in Michigan. Nevertheless, the federal district court ruled that the task force was a federal agency, governed by federal law. Under the ruling, even the Grand Rapids detective is treated as a federal employee. This means that King can’t sue either officer under Section 1983.

The district court then also dismissed King’s tort claims. While the FTCA allows people to sue federal agencies for torts committed by their employees, the law also stipulates that any federal official assumes the state immunities of equivalent state officials in the state in which the lawsuit was filed. The district court ruled that because Michigan law grants sovereign immunity to law enforcement agencies, the FBI enjoys the same immunity, and that effectively bars King from suing the agent who beat him under the FTCA.

The federal agent escapes accountability because he's treated like a state cop. And the state cop escapes because he's assumed to be a federal cop.

That left Kings’ Bivens claims. Here, the district court ruled that both cops were protected by qualified immunity. Judge Janet T. Neff found that it was reasonable for the officers to mistake King for the suspect, and so the stop was also reasonable. Therefore, when he tried to flee it was reasonable to tackle him. And when he woke up and bit one officer on the arm, it was reasonable to beat him senseless. It was also reasonable to prosecute him because he had assaulted two cops who were acting reasonably. It all seems so . . . unreasonable.

King next appealed to the U.S. Court of Appeals for the 6th Circuit. He dropped his FTCA claim and focused on the other two. There, he finally found some success. A three-judge panel overruled the district court on the qualified immunity claims on a 2 to 1 vote. However, the court upheld the district court’s ruling finding that for the lawsuit the Grand Rapids officer would be considered a federal agent. So King can only sue under Bivens, not under Section 1983.

By one vote, King will finally get his day in court. Except that, the government has appealed the case to the Supreme Court. And if successful, the appeal will not only deny King relief, it could make it yet more difficult for future plaintiffs to sue these task forces.

In his dissent from the appeals court decision, federal Judge John M. Rogers argued that when the district court ruled against King’s FTCA claim, it triggered the provision in that law that bars a plaintiff from pursuing constitutional claims under Bivens. Rogers was outvoted by his 6th Circuit co-panelists, who argued that because King’s FTCA claim was dismissed for lack of jurisdiction, it wasn’t decided on the merits, so he isn’t barred from his Bivens claim. But the officers have now appealed to the nation’s highest court. Citing Rogers’ dissent, they’re arguing that the District Court’s FTCA ruling does indeed bar Kings’ constitutional claims. More troubling, the federal Justice Department is now representing the police officers in their appeal.

King is also appealing the courts’ ruling that the task force officers should be considered federal, even though they were enforcing state law. King’s attorney Jaicomo says it’s important to preserve the right of plaintiffs to sue under Section 1983 when appropriate. “The Supreme Court has proclaimed that Section 1983 must be ‘liberally and beneficially construed,’ while the court has increasingly criticized the very existence of Bivens,” he says. “So, if officers can’t avoid accountability altogether — through qualified immunity or something like the FTCA judgment bar — Bivens gets them most of the way there. More broadly, it is nearly impossible to bring a Bivens claim outside of the Fourth Amendment context. There are many instances when a plaintiff has no recourse for a constitutional violation at all.”

If the Supreme Court declines to hear the case, there will be little clarification about who plaintiffs should sue, and under what law or court precedent, when members of joint task forces violate their constitutional rights. If the court takes the case and rules for the cops, the court will all but end the FTCA as an avenue for relief, and force all plaintiffs to sue joint task force members under Bivens, even as the court continues to make it increasingly difficult to do so.

The only pro-plaintiff outcome would be for the court to take the case and rule for King. That also seems like the court’s least likely course of action. In recent years, the court has not only been chipping away at Bivens, it has also been going out of its way to cloak police officers with immunity.

King says his mistrust of law enforcement stems not just from the beating itself, but from what happened afterward. “I know that mistakes happen, and I would have accepted an apology. But everything that happened after wasn’t an accident, it was intentional. Once they realized they had the wrong guy, they tried to put me in prison to cover their butts. Now they’re trying to escape accountability.”

Meanwhile, in December, a member of a joint narcotics task force shot a 20-year-old Alabama woman as she slept in her home. They were looking for a man wanted on drug charges. That man not only did not live at the house the cops invaded, he also had been arrested and jailed 20 hours earlier. The task force blamed the botched raid and mistaken shooting on “miscommunication.”

“For all that happened, I still consider myself lucky,” King says. “I have no doubt there are people sitting in a cell right now, people who did nothing wrong, because they either fought a charge like this and lost, or they didn’t have the financial resources to fight in the first place.”