Petition for Writ of Certiorari — James King, Petitioner v. Douglas Brownback, et al.

No. _______

================================================================================================================

In The

Supreme Court of the United States

-----------------------------------------------------------------JAMES KING,

Cross-Petitioner,

v.

DOUGLAS BROWNBACK, ET AL.,

Cross-Respondents.

-----------------------------------------------------------------On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Sixth Circuit

-----------------------------------------------------------------CONDITIONAL CROSS-PETITION

FOR A WRIT OF CERTIORARI

-----------------------------------------------------------------PATRICK JAICOMO

Counsel of Record

KEITH NEELY

INSTITUTE FOR JUSTICE

901 North Glebe Road

Suite 900

Arlington, VA 22203

(703) 682-9320

pjaicomo@ij.org

kneely@ij.org

ANYA BIDWELL

INSTITUTE FOR JUSTICE

816 Congress Avenue

Suite 960

Austin, TX 78701

(512) 480-5936

abidwell@ij.org

D. ANDREW PORTINGA

MILLER JOHNSON

45 Ottawa Avenue SW

Suite 1100

Grand Rapids, MI 49503

(703) 682-9320

portingaa@millerjohnson.com

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

QUESTION PRESENTED

The use of joint state-federal police task forces has

expanded nationwide and along with it the related

practice of federally deputizing state law enforcement

officers as task force members. Although this Court

has explained that a federal law enforcement officer

can act “under color of state law” for purposes of liability under 42 U.S.C. 1983, there is a split of authority

among the circuit courts regarding whether a law enforcement officer’s membership in a task force renders

his or her actions “under color of federal law” and provides per se immunity from liability under Section

1983.

Does a law enforcement officer’s membership in a

joint state-federal police task force managed, in part,

by a federal agency preclude him or her from acting

“under color of state law” for purposes of Section 1983?

ii

PARTIES TO THE PROCEEDINGS

Cross-petitioner is plaintiff James King. Cross-respondents are defendants Special Agent Douglas

Brownback of the Federal Bureau of Investigation and

Detective Todd Allen of the City of Grand Rapids,

Michigan, Police Department.

RELATED PROCEEDINGS

United States District Court (W.D. Mich.):

King v. United States,

No. 16-cv-343 (Aug. 24, 2017)

United States Circuit Court (6th Cir.):

King v. United States,

No. 17-2101 (Feb. 25, 2019), petition for reh’g

en banc denied, May 28, 2019.

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED...................................

i

PARTIES TO THE PROCEEDINGS ...................

ii

RELATED PROCEEDINGS ................................

ii

TABLE OF AUTHORITIES .................................

v

CROSS-PETITION FOR A WRIT OF CERTIORARI ....................................................................

1

OPINIONS BELOW.............................................

1

JURISDICTION ...................................................

1

STATUTORY PROVISION INVOLVED ..............

2

STATEMENT .......................................................

2

I.

II.

Members of a joint state-federal police task

force acting under a Michigan warrant unreasonably misidentified King as a Michigan

fugitive and unconstitutionally stopped,

searched, beat, and arrested him ..................

4

The district and circuit courts held that the

officers are immune from liability under

Section 1983 because of their task force

membership ................................................

8

REASONS FOR GRANTING THE CROSSPETITION ........................................................ 10

iv

TABLE OF CONTENTS—Continued

Page

I.

The rise of joint state-federal police task

forces has created confusion between acts

taken under color of state law, for which

Section 1983 provides a cause of action, and

acts taken under color of federal law, for

which Bivens provides a cause of action...... 11

II.

There is a split of authority among the circuit

courts regarding whether task force members should be treated differently than all

other persons when evaluating whether they

act under color of state or federal law ........... 15

III.

Because the facts demonstrate that the officers acted under color of state law, this

case provides the Court an effective means

to resolve the circuit split .......................... 21

CONCLUSION..................................................... 23

v

TABLE OF AUTHORITIES

Page

CASES

Adams v. Springmeyer,

No. 11-790, 2012 WL 1865736 (W.D. Pa. May

22, 2012) ..................................................................20

Adickes v. S.H. Kress & Co.,

398 U.S. 144 (1970) .................................................17

Aikman v. Cty. of Westchester,

691 F. Supp. 2d 496 (S.D.N.Y. 2010) .......................19

Amoakohene v. Bobko,

792 F. Supp. 605 (N.D. Ill. 1992) ....................... 19, 20

Askew v. Bloemker,

548 F.2d 673 (7th Cir. 1976) ....................................20

Big Cats of Serenity Springs, Inc. v. Rhodes,

843 F.3d 853 (10th Cir. 2016) ..................................18

Bivens v. Six Unknown Named Agents of

Fed. Bureau of Narcotics,

403 U.S. 388 (1971) ......................................... passim

Bond v. United States,

572 U.S. 844 (2014) .................................................11

Bordeaux v. Lynch,

958 F. Supp. 77 (N.D.N.Y. 1997) ..............................19

Burton v. Wilmington Parking Auth.,

365 U.S. 715 (1961) .................................................17

Cabrera v. Martin,

973 F.2d 735 (9th Cir. 1992) ....................................18

Colorado v. Nord,

377 F. Supp. 2d 945 (D. Colo. 2005) ........................19

vi

TABLE OF AUTHORITIES—Continued

Page

Couden v. Duffy,

446 F.3d 483 (3d Cir. 2006) .....................................20

Crawford-El v. Britton,

93 F.3d 813 (D.C. Cir. 1996) ....................................14

DeMayo v. Nugent,

517 F.3d 11 (1st Cir. 2008) ......................................19

Edmonson v. Leesville Concrete Co.,

500 U.S. 614 (1991) .................................................17

Fuentes v. Shevin,

407 U.S. 67 (1972) ...................................................22

Guerrero v. Scarazzini,

274 Fed. Appx. 11 (2d Cir. 2008) .............................19

Hampton v. Hanrahan,

600 F.2d 600 (7th Cir. 1979) ....................................18

Hindes v. FDIC,

137 F.3d 148 (3d Cir. 1998) .....................................18

Johnson v. Orr,

780 F.2d 386 (3d Cir. 1986) .....................................20

King v. United States,

917 F.3d 409 (6th Cir. 2019) ......................................1

King v. United States,

No. 1:16-cv-343, 2017 WL 6508182

(W.D. Mich. Aug. 24, 2017) ........................................1

Kletschka v. Driver,

411 F.2d 436 (2d Cir. 1969) .....................................18

vii

TABLE OF AUTHORITIES—Continued

Page

Knights of the Ku Klux Klan v.

East Baton Rouge Par. Sch. Bd.,

735 F.2d 895 (5th Cir. 1984) ....................................18

Lake Country Estates, Inc. v.

Tahoe Reg’l Planning Agency,

440 U.S. 391 (1979) ............................... 14, 18, 19, 21

Laswell v. Brown,

683 F.2d 261 (8th Cir. 1982) ....................................14

Lugar v. Edmonson Oil Co.,

457 U.S. 922 (1982) ......................................... passim

Macaluso v. Dane Cty.,

537 N.W.2d 148 (Wis. Ct. App. 1995) ......................20

Mayor of New York v. Miln,

36 U.S. 102 (1837) ...................................................11

Mitchell v. W.T. Grant Co.,

416 U.S. 600 (1974) .................................................22

Monell v. Dep’t of Soc. Servs.,

436 U.S. 658 (1978) .................................................16

Monroe v. Pape,

365 U.S. 167 (1961) ........................................... 16, 17

North Ga. Finishing, Inc. v. Di-Chem, Inc.,

419 U.S. 601 (1975) .................................................22

Olson v. Norman,

830 F.2d 811 (8th Cir. 1987) ....................................18

Pettiford v. Greensboro,

556 F. Supp. 2d 512 (M.D.N.C. 2008) ................ 20, 21

viii

TABLE OF AUTHORITIES—Continued

Page

Pike v. United States,

868 F. Supp. 2d 667 (M.D. Tenn. 2012) ...................19

Pou v. DEA,

923 F. Supp. 573 (S.D.N.Y. 1996) ............................19

Sniadach v. Family Fin. Corp.,

394 U.S. 337 (1969) .................................................22

Strickland v. Shalala,

123 F.3d 863 (6th Cir. 1997) ....................................18

Texas v. Kleinert,

143 F. Supp. 3d 551 (W.D. Tex. 2015)......................19

Tyson v. Willauer,

289 F. Supp. 2d 190 (D. Conn. 2003) .......................19

United States v. Classic,

313 U.S. 299 (1941) .................................................17

United States v. Price,

383 U.S. 787 (1966) .................................................17

West v. Mesa,

128 F. Supp. 3d 1233 (D. Ariz. 2015).......................19

Wilkinson v. Hallsten,

No. 5:06CV2, 2006 WL 2224293 (W.D.N.C.

Aug. 2, 2006) ............................................................20

Ziglar v. Abbasi,

137 S. Ct. 1843 (2017) .............................................14

STATUTES

28 U.S.C. 1254(1)...........................................................1

28 U.S.C. 2676 .............................................................10

ix

TABLE OF AUTHORITIES—Continued

Page

42 U.S.C. 1983 ..................................................... passim

42 U.S.C. 1988(b).........................................................15

Cal. Penal Code § 830.8 (West 2019)..........................13

Mich. Comp. Laws § 764.15d (West 2019) ............. 9, 13

Va. Code Ann. § 15.2-1726 (West 2019)......................13

OTHER AUTHORITIES

Alexander A. Reinert, Measuring the Success of

Bivens Litigation and Its Consequences for the

Individual Liability Model, 62 Stan. L. Rev.

809 (2010). ...............................................................14

Frequently Asked Questions, FBI.gov.........................13

Jerome P. Bjelopera, Cong. Research Serv.,

R41780, The Federal Bureau of Investigation

and Terrorism Investigations (Apr. 24, 2013) .........12

Joanna C. Schwartz, How Qualified Immunity

Fails, 127 Yale L.J. 2 (2017) ....................................14

Joint Terrorism Task Forces, FBI.gov ........................12

Kade Crockford, Beyond Sanctuary: Local Strategies for Defending Civil Liberties, Century

Found. (Mar. 21, 2018) ............................................13

Michael Maharrey, Local Cops Can Skirt State

Limits on Surveillance by Joining Federal

Task Forces, Found. for Econ. Educ. (May 7,

2019) ........................................................................13

Safe Trails Task Forces, FBI.gov ................................12

x

TABLE OF AUTHORITIES—Continued

Page

Simone Weichselbaum, Why Some Police Departments Are Leaving Federal Task Forces,

The Marshall Project (Oct. 31, 2019)................ 12, 13

Task Forces, U.S. Att’y Off. for the W. Dist. Pa. ..........12

U.S. Dept. of Justice, The Department of Justice’s

Terrorism Task Forces (June 2005) .........................12

Violent Gang Task Forces, FBI.gov.............................12

1

CROSS-PETITION FOR A

WRIT OF CERTIORARI

King conditionally cross-petitions for a writ of certiorari to review the opinion of the United States Court

of Appeals for the Sixth Circuit.

------------------------------------------------------------------

OPINIONS BELOW

The opinion of the Sixth Circuit, Pet. App. 1a, is

reported at 917 F.3d 409. The opinion of the United

States District Court for the Western District of Michigan, Pet. App. 46a, is not reported but is available at

2017 WL 6508182.

------------------------------------------------------------------

JURISDICTION

The Sixth Circuit entered its opinion below on

February 25, 2019. The officers’ petition for rehearing

en banc was denied on May 28, 2019. On August 18,

Justice Sotomayor extended the time within which to

file a petition for a writ of certiorari to and including

September 25, 2019. On September 16, Justice Sotomayor further extended the time within which to file

a petition for a writ of certiorari to and including October 25, 2019. The officers filed a petition for a writ of

certiorari on that date. King timely files this conditional cross-petition and invokes this Court’s jurisdiction under 28 U.S.C. 1254(1).

------------------------------------------------------------------

2

STATUTORY PROVISION INVOLVED

The Civil Rights Act of 1871, 42 U.S.C. 1983, provides:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen

of the United States or other person within

the jurisdiction thereof to the deprivation of

any rights, privileges, or immunities secured

by the Constitution and laws, shall be liable

to the party injured in an action at law, suit in

equity, or other proper proceeding for redress[.]

------------------------------------------------------------------

STATEMENT

The intermingling of state and federal law enforcement officers through the rise of joint statefederal police task forces requires victims of constitutional violations to play a cruel shell game. Plaintiffs

must guess whether to bring claims under 42 U.S.C.

1983 (for constitutional violations committed under

color of state law); Bivens v. Six Unknown Named

Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971)

(for constitutional violations committed under color of

federal law); the FTCA (for torts committed by federal

employees); or some combination thereof, while the

government hides the ball beneath shifting state and

federal authority.

3

In their petition, FBI Special Agent Douglas

Brownback and Grand Rapids, Michigan, Police Detective Todd Allen (the “officers”) attempt to do just that

by asking this Court to (1) treat a Michigan police officer enforcing Michigan law as a federal employee; (2)

allow the Federal Government to assume the Michigan

officer’s liability for unconstitutionally executing a

Michigan warrant as part of a joint state-federal police

task force; (3) provide the Federal Government immunity under Michigan law; and (4) for that reason, provide the officers immunity under the FTCA’s judgment

bar. By swapping between state and federal authority,

the officers argue that they cannot be held accountable

for unconstitutionally stopping, searching, beating,

and arresting James King, an innocent college student

the officers unreasonably misidentified as a fugitive.

In his conditional cross-petition, King asks the

Court to consider whether a task force member’s unconstitutional acts can be remedied under Section

1983 or whether they must be pursued under Bivens.

Below, the Sixth Circuit held that task force members

categorically act under color of federal law and, therefore, can only be sued under Bivens. Although the officers were in Michigan executing a Michigan warrant

against a Michigan resident suspected of a Michigan

crime at the request of a Michigan police chief, the

Sixth Circuit held that the officers were not acting under color of state law; their task force membership immunized them from liability under Section 1983. That

opinion represents one side of a circuit split.

4

Because the officers’ task force membership raises

issues under the FTCA, Section 1983, and Bivens, this

Court should grant the petition and cross-petition together or deny both. If it addresses the application of

the FTCA to task force members, this Court should also

address the application of Section 1983 and Bivens.

I.

Members of a joint state-federal police task

force acting under a Michigan warrant unreasonably misidentified King as a Michigan

fugitive and unconstitutionally stopped,

searched, beat, and arrested him.

On the afternoon of Friday, July 18, 2014, 21-yearold college student James King was walking between

his two summer jobs in Grand Rapids, Michigan. He

came upon two men leaning against a black SUV. Unbeknownst to King, these men were members of a joint

fugitive task force operated by the FBI and the Grand

Rapids Police Department. Pet. App. 2a; D. Ct. Doc. 732, at 505. That task force was “supervised” by the FBI,

but “[o]verall management of the [task force was] the

shared responsibility of the participating agency

heads[.]” D. Ct. Doc. 73-2, at 505.

5

One man leaning on the SUV was Grand Rapids

Police Detective Todd Allen. The other was FBI Special

Agent Douglas Brownback. Both men were in scruffy

street clothes, not uniforms. Pet. App. 2a. Allen’s appearance is pictured below:

Doc. 36, at 19.

The officers were looking for fugitive Aaron Davison,

who was wanted on a Michigan warrant for a home invasion he committed in Grand Rapids. The description of

Davison from which the officers were working was very

broad. They knew only that Davison was a 26-year-old

white male between 5'10" and 6'3" with glasses; short,

dark hair; and a thin build. Pet. App. 2a–3a.

6

The officers had a seven-year-old driver’s license

photo of Davison and a more recent Facebook photo,

where Davison’s face was not visible:

Davison Driver’s

License Photo

Davison

Facebook Photo

Pet. App. 3a, 18a.

The officers did not find Davison, but they did find

King. Five years younger than Davison, King did not

bear a resemblance to either photograph of Davison

the officers had:

Doc. 36, at 21. But because King was a white male with

glasses between 5'10" and 6'3" tall, the officers stopped

him. Pet. App. 3a.

7

King did not realize that the men who stopped him

were law enforcement officers. Pet. App. 2a–4a. Neither

Brownback nor Allen identified himself, and King did

not recognize that both officers were wearing lanyards

with badges. Pet. App. 2a–4a.

Allen asked King who he was. King replied,

“James.” Allen then asked King for identification, and

King said he did not have any. The officers put King up

against their vehicle. Allen then removed King’s wallet, prompting King to ask, “Are you mugging me?”

King turned and tried to run, but Allen tackled him to

the ground. King shouted for help, begging passersby

to call the police, but Allen choked King unconscious.

Pet. App. 3a–4a.

After regaining consciousness, King tried to save

his own life by biting Allen in the arm that was still

around King’s neck. Allen then, as he later testified,

beat King in the head and face “as hard as I could, as

fast as I could, and as many times as I could.” Pet. App.

4a.

Responding to King’s pleas for help, bystanders

called the police, and uniformed officers eventually

arrived. Like King, the bystanders did not know that

Allen and Brownback were law enforcement officers.

4a–5a.

Grand Rapids police officers took King from the

scene to the emergency room. Despite realizing that

King was not the sought-after fugitive, officers moved

King from the hospital to the county jail and charged

8

him with several felonies related to his interaction

with the officers. Pet. App. 5a.

The Kent County, Michigan, prosecutor pursued

felony charges against King for assaulting a police officer and causing injury, assaulting a police officer, and

assault with a dangerous weapon. D. Ct. Doc. 74-8, at 1.

A jury acquitted King on all charges. Pet. App. 5a.

II.

The district and circuit courts held that the

officers are immune from liability under

Section 1983 because of their task force

membership.

On April 4, 2016, King filed this lawsuit in the

United States District Court for the Western District

of Michigan. Because the officers are an FBI agent and

a Grand Rapids city police detective, King was unsure

of the appropriate claims to bring. Accordingly, King

alleged alternative counts against the officers: one under Section 1983 and one under Bivens. He also

brought a count under the FTCA. In lieu of answering,

the officers filed a motion to dismiss.

On August 24, 2017, the district court dismissed

all of King’s claims. The court held that because the

officers were members of a task force, King could not

pursue claims under Section 1983. Pet. App. 56a–57a

(“[Section] 1983 does not apply to federal Task Force

officers working on an open federal investigation.”).

The district court acknowledged that the officers acted

pursuant to a Michigan warrant for a Michigan crime.

Pet. App. 56a. But the fact that the officers were acting

9

under color of state law “under a cooperative federalism scheme d[id] not change the [court’s] analysis.” Pet.

App. 56a. Additionally, the court found that even

though Bivens claims were technically available to

King, qualified immunity shielded the officers from liability for those claims. Pet. App. 60a–68a.

King appealed. In the Sixth Circuit, the officers argued that King’s constitutional claims were foreclosed

by the FTCA’s judgment bar because the district court

had dismissed King’s FTCA claim and that, in any

case, the court had correctly granted the officers qualified immunity. Although the Sixth Circuit agreed with

the district court that the officers could not be sued under Section 1983 because they were task force members,1 Pet. App. 34a–37a, it rejected the officers’ FTCA

argument, held that the officers were not entitled to

qualified immunity, and remanded King’s claims to

proceed under Bivens. Pet. App. 38a.

After the Sixth Circuit denied the officers’ request

for rehearing en banc, the officers filed a petition for a

1

Although King argued on appeal that both officers were acting under color of state law, the Sixth Circuit only addressed

King’s arguments regarding state officer Allen. It also mistakenly

presumed that the task force is “managed” by the FBI and incorrectly stated that King had “not alleged or demonstrated that the

state was involved in authorizing or administering the task

force.” App. 36a. To the contrary, the task force is managed jointly

by the FBI and the Grand Rapids Police Department, D. Ct. Doc.

73-2, at 505, and King explained at length how the state was involved in “authorizing” the task force. See, e.g., Doc. 36, at 75 (noting, among other things, “Absent the state warrant, Mich. Comp.

Laws § 764.15d, and the request of the Grand Rapids Police Chief,

the FBI could not arrest Davison in Grand Rapids.”).

10

writ of certiorari, asking this Court to expand the immunities provided to federal employees under the

FTCA’s judgment bar, 28 U.S.C. 2676.

------------------------------------------------------------------

REASONS FOR GRANTING

THE CROSS-PETITION

If this Court grants the officers’ petition to consider the application of the FTCA to task force members, it should also grant King’s cross-petition to

consider the application of Section 1983 and Bivens.

Because the officers’ task force membership intertwines state and federal authority and because the

FTCA, Section 1983, and Bivens are closely related—

and frequently raised as supplemental or alternative

claims—this Court should consider all three or none.

The officers’ petition illustrates the present confusion about state and federal authority. With the nationwide proliferation of joint state-federal police task

forces, courts and plaintiffs have struggled to determine whether task force members act under color of

state law, federal law, or both. That distinction is crucial to safeguarding constitutional rights because it

dictates the claims a plaintiff can bring.

The long-established test to determine whether a

person acts under color of state law for purposes of Section 1983 considers the totality of the circumstances.

Under that test, courts have held that state officers,

federal officers, and private persons can act under color

of state law.

11

The circuit courts are split, however, on whether

the test applies to task force members. In two circuits,

the courts have held that it does. In the Sixth Circuit

and two others, however, the courts have held that it

does not. Rather than consider the totality of the circumstances, these courts hold that task force members

categorically act under color of federal, rather than

state, law.

Without this Court’s guidance, confusion will continue to grow, and an increasing number of plaintiffs

will suffer constitutional violations under color of state

law without access to the remedy prescribed by Congress in Section 1983.

I.

The rise of joint state-federal police task

forces has created confusion between acts

taken under color of state law, for which

Section 1983 provides a cause of action,

and acts taken under color of federal law,

for which Bivens provides a cause of action.

In our federal system, the general police power belongs to the states, not the Federal Government. Mayor

of New York v. Miln, 36 U.S. 102, 139 (1837). “For nearly

two centuries it has been clear that, lacking a police

power, Congress cannot punish felonies generally.”

Bond v. United States, 572 U.S. 844, 854 (2014) (internal quotation marks and citation omitted). But in recent decades, the Federal Government has found a

workaround: joint state-federal police task forces.

12

Virtually unknown for much of American history,

these task forces have become commonplace. “Today

about a thousand task forces nationwide operate under

the direction of the U.S. Marshals, the FBI or the federal Drug Enforcement Administration[.]”2 That number is growing.3

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, cyber-crimes, whitecollar crimes, “Indian Country” crimes, bank robberies,

narcotics, kidnappings, motor vehicle thefts, and fugitives.4

2

Simone Weichselbaum, Why Some Police Departments Are

Leaving Federal Task Forces, The Marshall Project (Oct. 31,

2019), http://tiny.cc/iey9fz; see Task Forces, U.S. Att’y Off. for the

W. Dist. Pa., http://tiny.cc/xg99fz (last visited Nov. 15, 2019) (listing nine different task forces in Pittsburgh, Pennsylvania).

3

In 1979, the FBI and NYPD formed the first state-federal

terrorism task force. By 2001, there were 35, and by 2005, there

were 103, comprised of more than 5,000 state and federal officers.

See, e.g., U.S. Dep’t of Justice, The Department of Justice’s Terrorism Task Forces 15 (June 2005), http://tiny.cc/zlvbgz. “Today

there are about 200[.]” Joint Terrorism Task Forces, FBI.gov,

http://tiny.cc/yf99fz (last visited Nov. 14, 2019). As of 2013, terrorism task force members represented more than 600 state agencies and 50 federal agencies. Jerome P. Bjelopera, Cong. Research

Serv., R41780, The Federal Bureau of Investigation and Terrorism Investigations 13 (Apr. 24, 2013), http://tiny.cc/fyvbgz.

4

See, e.g., Violent Gang Task Forces, FBI.gov, http://tiny.

cc/wj99fz (last visited Nov. 15, 2019) (listing 171 gang task forces

operating in 38 states, the District of Columbia, and Puerto Rico);

Safe Trails Task Forces, FBI.gov, http://tiny.cc/ag99fz (last visited

Nov. 15, 2019) (listing 16 task forces in 11 states operated in

13

Although state-federal composition and administration may vary significantly by task force, members

are usually cross-authorized state and federal police

officers. State officers are typically deputized as special

U.S. Marshals to enforce federal law,5 while federal officers often operate under state statutes to enforce

state law.6 This dual role allows task force members to

select the state or federal laws that best suit their purposes.7 The result is often a lack of accountability for

constitutional violations.8

This case highlights several problems created by

the task force shell game and why it raises an important issue. While violations committed by officers

“under color of state law” can be pursued through a

statutory cause of action provided by Congress in Section 1983, violations committed by officers “under color

of federal law” must be pursued through an implied

cooperation with “state, local, and tribal law enforcement agencies”); Frequently Asked Questions, FBI.gov, http://tiny.cc/bg99fz

(last visited Nov. 15, 2019).

5

See Weichselbaum (noting that U.S. Marshals deputized

one-third of the Pensacola Police Department’s 161-officer force

during the summer of 2019).

6

See, e.g., Mich. Comp. Laws § 764.15d (West 2019) (setting

forth the criteria under which a “federal law enforcement officer

may enforce state law.”); Cal. Penal Code § 830.8 (West 2019); Va.

Code Ann. § 15.2-1726 (West 2019).

7

See, e.g., Michael Maharrey, Local Cops Can Skirt State

Limits on Surveillance by Joining Federal Task Forces, Found. for

Econ. Educ. (May 7, 2019), http://tiny.cc/df99fz.

8

See, e.g., Kade Crockford, Beyond Sanctuary: Local Strategies for Defending Civil Liberties, Century Found. (Mar. 21, 2018),

http://tiny.cc/2gmigz.

14

cause of action articulated by this Court in Bivens. In

the past, it was simple for plaintiffs and courts to determine whether officers acted under state or federal

law. State officers acted under color of state law, and

federal officers acted under color of federal law. That is

no longer the case.

Although Section 1983 and Bivens are viewed as

analogous, the differences between them are consequential to plaintiffs. Section 1983 provides a much

better chance for success: plaintiffs succeed in nearly

60% of Section 1983 cases,9 while only 16% of plaintiffs

succeed under Bivens.10 This is perhaps because Section 1983 must be “liberally and beneficially construed” with “the largest latitude consistent with the

words employed,” while courts apply Bivens cautiously.

Compare Lake Country Estates, Inc. v. Tahoe Reg’l

Planning Agency, 440 U.S. 391, 400 n.17 (1979) (internal quotation marks and citation omitted), with Ziglar

v. Abbasi, 137 S. Ct. 1843, 1857, 1863 (2017) (holding

that “expanding the Bivens remedy is now a ‘disfavored’ judicial activity” and “when alternative methods

9

Joanna C. Schwartz, How Qualified Immunity Fails, 127

Yale L.J. 2, 47 (2017) (finding that plaintiffs succeeded in 57.7%

of the cases in a five-district study).

10

Alexander A. Reinert, Measuring the Success of Bivens Litigation and Its Consequences for the Individual Liability Model,

62 Stan. L. Rev. 809, 837 (2010) (finding that plaintiffs succeeded

in approximately 16% of cases in a five-district study). Notwithstanding Reinert’s results, other studies of Bivens have concluded

that the success rate is lower than 1%. See Crawford-El v. Britton, 93 F.3d 813, 838 (D.C. Cir. 1996) (Silberman, J., concurring)

(citation omitted); Laswell v. Brown, 683 F.2d 261, 269 (8th Cir.

1982).

15

of relief are available, a Bivens remedy usually is not”)

(citation omitted). Finally, a plaintiff who succeeds on

a Section 1983 claim can recover attorney fees under

42 U.S.C. 1988(b), while a plaintiff who succeeds under

Bivens cannot.

It is no wonder that the government fights for task

force members to avoid Section 1983 claims. If officers

cannot avoid accountability altogether through some

form of immunity—e.g., qualified immunity, governmental immunity, or immunity under the FTCA judgment bar—Bivens gets them most of the way there.

Unfortunately, some courts, such as the Sixth Circuit

below, have helped officers avoid Section 1983 claims

by rejecting the long-held test to determine whether a

person acts under color of state law and holding, instead, that task force members categorically act under

color of federal law. As a result, victims of constitutional violations committed by task force members are

forced to bring their claims under Bivens, even though

doing so is inconsistent with Section 1983 and the principles it represents.

II.

There is a split of authority among the circuit courts regarding whether task force

members should be treated differently than

all other persons when evaluating whether

they act under color of state or federal law.

Section 1983 provides a cause of action for constitutional violations committed “under color of ” state

law. That phrase has been interpreted broadly to

16

include not only the acts of state officers, but those of

private persons and federal officers as well. The historic test for determining whether a person acts under

color of state law evaluates the totality of the circumstances, but the circuit courts are split on whether that

test applies to task force members. Two circuits apply

the historic test and consider the totality of the circumstances under which task force members act. Another

three circuits, including, now, the Sixth Circuit, instead

apply a per se rule that members of joint state-federal

police task forces act under color of federal law only

Enacted as part of the Civil Rights Act of 1871,

Section 1983 was one means by which Congress

exercised the power vested in it by the newly ratified

Fourteenth Amendment. Monroe v. Pape, 365 U.S. 167,

171–187 (1961), overruled on other grounds by Monell

v. Dep’t of Soc. Servs., 436 U.S. 658, 663 (1978).

Section 1983’s immediate purpose was to combat

the widespread abuses perpetrated by state governments against former slaves and their supporters in

the post-war South. Monroe, 365 U.S. at 174 (citation

omitted). To effect that purpose, Congress used expansive language in Section 1983, creating a direct cause

of action against

[e]very person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State * * * subjects, or causes to be subjected,

any * * * person * * * to the deprivation of any

rights, privileges, or immunities secured by

the Constitution and laws[.]

17

Acts taken under color of state law include every

“[m]isuse of power, possessed by virtue of state law and

made possible only because the wrongdoer is clothed

with the authority of state law[.]” Monroe, 365 U.S. at

184 (quoting United States v. Classic, 313 U.S. 299,

325–326 (1941)).

This Court has long held that persons jointly engaged with state officials can act under color of state

law. Adickes v. S.H. Kress & Co., 398 U.S. 144, 152

(1970) (quoting United States v. Price, 383 U.S. 787, 794

(1966) (holding that a private person can act under

color of state law)).

To determine whether a person acts under color of

state law, this Court looks to the totality of the circumstances. Burton v. Wilmington Parking Auth., 365 U.S.

715, 722 (1961). It then considers two factors:

First, the deprivation must be caused by the

exercise of some right or privilege created by

the State or by a rule of conduct imposed by

the state or by a person for whom the State is

responsible. * * * Second, the party charged

with the deprivation must be a person who

may fairly be said to be a state actor. This may

be because he is a state official, because he has

acted together with or has obtained significant aid from state officials, or because his

conduct is otherwise chargeable to the State.

Lugar v. Edmonson Oil Co., 457 U.S. 922, 937 (1982);

see Edmonson v. Leesville Concrete Co., 500 U.S. 614,

620–622 (1991) (applying Lugar factors).

18

Relying in large part on Lugar’s test, the circuit

courts have held that federal officers, just like private

persons, can act “under color of state law.”11 See

Kletschka v. Driver, 411 F.2d 436, 448–449 (2d Cir.

1969) (“We can see no reason why a joint conspiracy

between federal and state officials should not carry the

same consequences under § 1983 as does joint action

by state officials and private persons.”).

Although this Court has never squarely addressed

this issue, it came close in Lake Country. There, Lake

Tahoe property owners brought claims under Section

1983 and Bivens against officers of the Tahoe Regional

Planning Agency—a body created through a congressionally approved compact between California and Nevada. Lake Country, 440 U.S. at 393–394. The officers

argued that congressional approval precluded their

acts from being under color of state law, and the Ninth

Circuit agreed. See id. 396.

This Court rejected the Ninth Circuit’s conclusion

“that the requirement of federal approval of [an] interstate Compact foreclosed the possibility that * * * officers could be found to be ‘under color of state law[.]’ ”

11

E.g., Big Cats of Serenity Springs, Inc. v. Rhodes, 843 F.3d

853, 869–870 (10th Cir. 2016); Hindes v. FDIC, 137 F.3d 148, 158

(3d Cir. 1998); Strickland v. Shalala, 123 F.3d 863, 866 (6th Cir.

1997); Cabrera v. Martin, 973 F.2d 735, 742–744 (9th Cir. 1992);

Olson v. Norman, 830 F.2d 811, 821 (8th Cir. 1987); Knights of

the Ku Klux Klan v. East Baton Rouge Par. Sch. Bd., 735 F.2d

895, 899–900 (5th Cir. 1984); Hampton v. Hanrahan, 600 F.2d

600, 623 (7th Cir. 1979), overruled in part on other grounds by

446 U.S. 754 (1980); Kletschka v. Driver, 411 F.2d 436, 448–449

(2d Cir. 1969).

19

Lake Country, 440 U.S. at 399. Lake Country further

explained that “[e]ven if it were not well settled that

§ 1983 must be given a liberal construction, these facts

adequately characterize the alleged actions of the respondents as ‘under color of state law’ within the

meaning of that statute. * * * [A]nd there is no need to

address the question whether there is an implied remedy [under Bivens].” Id. at 399–400 (footnote omitted).

Notwithstanding that the long-established test to

determine whether a person acts under color of state

law considers the totality of the circumstances, the circuit and district courts are split on whether that test

applies to task force members.

With its opinion below, the Sixth Circuit joins the

First and Second Circuits in applying a categorical

rule that task force members act under color of federal

law, regardless of the circumstances.12 So too do many

district courts.13 Ignoring Lugar and Lake Country,

12

See Pet. App. 56a–57a; DeMayo v. Nugent, 517 F.3d 11, 14

n.5 (1st Cir. 2008); Guerrero v. Scarazzini, 274 Fed. Appx. 11, 12

n.1 (2d Cir. 2008).

13

West v. Mesa, 128 F. Supp. 3d 1233, 1240 (D. Ariz. 2015),

aff ’d, 708 Fed. Appx. 288 (9th Cir. 2017); Texas v. Kleinert, 143

F. Supp. 3d 551, 562 (W.D. Tex. 2015), aff ’d sub nom. State v.

Kleinert, 855 F.3d 305 (5th Cir. 2017); Pike v. United States, 868

F. Supp. 2d 667, 677–678 (M.D. Tenn. 2012); Aikman v. Cty. of

Westchester, 691 F. Supp. 2d 496, 498 (S.D.N.Y. 2010); Colorado

v. Nord, 377 F. Supp. 2d 945, 949 (D. Colo. 2005); Tyson v.

Willauer, 289 F. Supp. 2d 190, 192 n.1, 193 n.3 (D. Conn. 2003);

Bordeaux v. Lynch, 958 F. Supp. 77, 83–84 (N.D.N.Y. 1997); Pou

v. DEA, 923 F. Supp. 573, 579 (S.D.N.Y. 1996), aff ’d sub nom. Pou

v. Loszynski, 107 F.3d 3 (2d Cir.); Amoakohene v. Bobko, 792

F. Supp. 605, 608 (N.D. Ill. 1992).

20

these courts hold that if an officer is a task force member, his or her acts are under color of federal law per

se. They do not consider the totality of the circumstances. A plaintiff may only proceed under Bivens. See

Pettiford v. Greensboro, 556 F. Supp. 2d 512, 534–537

(M.D.N.C. 2008) (discussing the alternative legal

frameworks applied when state and federal officers act

cooperatively).

The Third and Seventh Circuits disagree.14 Those

circuits, and a number of district courts,15 look beyond

the label of an officer’s authority and consider the circumstances surrounding his or her acts to determine

whether they were taken under color of state law, federal law, or both.16 Not only is this approach faithful

14

Couden v. Duffy, 446 F.3d 483, 499 (3d Cir. 2006); Askew

v. Bloemker, 548 F.2d 673, 677 (7th Cir. 1976) (looking at “the

totality of the circumstances surrounding the alleged raid” to conclude that the state officers assigned to work with a federal

agency “were acting pursuant to federal authority and not under

color of any state law”); accord Johnson v. Orr, 780 F.2d 386, 393

(3d Cir. 1986) (“There is no set formula for determining whether

the employees of an agency with both state and federal characteristics act under color of state law. All of the circumstances must

be examined to consider whether the actions complained of were

sufficiently linked to the state.”).

15

Pettiford, 556 F. Supp. 2d at 534–535; Adams v. Springmeyer, No. 11-790, 2012 WL 1865736, at *5–6 (W.D. Pa. May 22,

2012); cf. Wilkinson v. Hallsten, No. 5:06CV2, 2006 WL 2224293,

at *8 n.7 (W.D.N.C. Aug. 2, 2006), aff ’d, 225 Fed. Appx. 127 (4th

Cir. 2007); Macaluso v. Dane Cty., 537 N.W.2d 148, *3–4 (Wis. Ct.

App. 1995) (table).

16

Some courts have suggested that an officer may act under

color of both state and federal law. See Johnson 780 F.2d at 392

n.11. Others have rejected that possibility. See Amoakohene, 792

F. Supp. at 608.

21

to Section 1983, Lugar, and Lake Country, it is also

well-suited for application to task forces, which are inherently amorphous and can vary widely in their statefederal compositions and activities. Because such task

forces act on a continuum of state and federal authority, the flexible approach articulated in Lugar is essential.

III. Because the facts demonstrate that the officers acted under color of state law, this

case provides the Court an effective means

to resolve the circuit split.

This case provides the Court a good vehicle to address the circuit split because, under the totality of the

circumstances, both Allen and Brownback acted under

color of state law when they unconstitutionally

stopped, searched, beat, and arrested King. The compelling evidence of state-law authority here provides

the Court a clean fact pattern to apply Lugar to task

force members.

Under Lugar, King’s constitutional deprivations

are traceable to authority conferred on the officers by

Michigan state law. They executed a Michigan warrant

under Michigan’s grant of enforcement authority (to

Allen as a state officer and Brownback through statute) at the request of a Michigan police chief. The

abuse of Michigan authority deprived King of his constitutional rights.

And under Lugar, the officers may fairly be said to

be state actors. Allen is a Michigan police detective,

22

who claims to have identified himself as such when

he interacted with King. Although he was deputized

under Michigan and federal law, Allen was employed

and being paid by the City of Grand Rapids and testified that he was carrying two GRPD badges and a

GRPD-issued firearm. After the incident, Allen filed a

GRPD Incident Report and a GRPD Use of Force Report, and Kent County, Michigan, prosecuted King for

assaulting “a police officer of the Grand Rapids Police

Department.” D. Ct. Doc. 74-8, at 1.

Although Brownback is an FBI agent, he “acted together with [and] obtained significant aid from [a]

state official[ ].” Lugar, 457 U.S. at 937. Further, because he was enforcing Michigan law, his only source

of authority was a Michigan statute, rendering his conduct “chargeable to the State.” Ibid.17

Because task forces have blurred the line between

acts taken under color of state law and acts taken under color of federal law, this Court should consider the

petition and cross-petition together or not at all.

------------------------------------------------------------------

17

In deriving its test, Lugar cited Sniadach v. Family Fin.

Corp., 394 U.S. 337 (1969); North Ga. Finishing, Inc. v. Di-Chem,

Inc., 419 U.S. 601 (1975); Mitchell v. W.T. Grant Co., 416 U.S. 600

(1974); and Fuentes v. Shevin, 407 U.S. 67 (1972). All four cases

involved issues of state action arising out of a private party’s invocation of authority provided by statute. Brownback’s source of

authority is indistinguishable.

23

CONCLUSION

If this Court grants the officers’ petition, it should

also grant King’s cross-petition.

Respectfully submitted,

PATRICK JAICOMO

Counsel of Record

KEITH NEELY

INSTITUTE FOR JUSTICE

901 North Glebe Road

Suite 900

Arlington, VA 22203

(703) 682-9320

pjaicomo@ij.org

kneely@ij.org

ANYA BIDWELL

INSTITUTE FOR JUSTICE

816 Congress Avenue

Suite 960

Austin, TX 78701

(512) 480-5936

abidwell@ij.org

D. ANDREW PORTINGA

MILLER JOHNSON

45 Ottawa Avenue SW

Suite 1100

Grand Rapids, MI 49503

(703) 682-9320

portingaa@millerjohnson.com