a college student is walking down the sidewalk suddenly he's grabbed by multiple police officers wearing plain clothes yeah I got out now to work early walking on the sidewalk on a sunny summer day go into my internship I was calling my sister at the time and somewhat distracted by looking at my phone when two men approached me stepped toward me off the curb and said you know hey who are you I said I'm James and they asked me or is that your real name I said yes that's my real name but one of them stepped behind me boxed me out and took my wallet out of my back pocket so I went to run to flee and I was tackled and ultimately beaten pretty severely he has no idea they're police officers he thinks he's getting mugged bystanders think he's getting mugged they call 9-1-1 it looks like a mugging I was screaming for someone to call the police it's not they're beating them off like they're literally assaulting him do you have any weapons on you at all no sir I thought they were trying to mark me you can do nothing and just be in the wrong place at the wrong time you have the situation where James is like actually innocent of absolutely everything there was not it's not like they tried to stop him for jaywalking and he ran away they thought he was someone he wasn't they take his wallet they beat him but they were cops why are officers in plain clothes doing stops like the whole point of being in plain clothes is so people can't identify you as an officer not just any cops they were federalized into a task force you take a local officer and you you have them assign a one-page piece of paper making them a U.S Marshal and now you know Bob's your uncle you have a Federal Officer who's also a state officer the police came and then that was when I realized that they weren't muggers but they were just police detective and an FBI agent and then after they misidentified James and beat the crap out of him instead of being like Oh gosh we're so sorry you know big mistake on our part they charge him with three felonies you have this sort of full force of the federal government behind defending the case and that's before you even get to any of the immunities [Music] I remember being loaded into the back of the ambulance just being so stricken by what it all had just happened I was in a great deal of pain when I got to the hospital and I remember everyone there the staff the nurse even the officer that was in charge of watching me as I was cuffed to my bed I remember him loosening the cuffs and telling me that I shouldn't be there I went directly from the hospital to the jail cell you're an innocent victim can you sue them qualified immunity is bad enough but imagine in America where the federal government can just go in and deputize your local law enforcement and take them completely out of state and local control imagine that they can then just violate your constitutional rights and there's basically nothing that you can do about it imagine that they have more than just qualified immunity but you just can't sue them at all that is what is at issue in this important case King versus Brownback currently being appealed to the U.S Supreme Court by The Institute for justice for a second time I recently had the opportunity to talk to one of their lawyers one of the top civil rights lawyers in the country Patrick Giacomo who has already argued this case before the U.S Supreme Court once he explains a backstory about what happened to James King here as well as the extraordinary lengths that the government has gone that your government has gone to keep an innocent victim from ever having his day in court and seeing a jury over the Undisputed relief violation of his constitutional rights this is an extremely important case because we are seeing these Federal task forces pop up all over the country and if courts take the position that state and local officers are effectively Federal officers they basically can't be sued courts will say yeah he violated your constitutional rights but there's nothing that you can do about it and so far that's what's happened here to James King he was completely innocent and local police officers beat the hell out of him but he couldn't sue them The Institute for justice is asking the Supreme Court to fix this problem here's some insight from one of the nation's top civil rights lawyers about this case and about what you can do to help I just watched the video that you guys put out three years ago I've been working on that case like I've been in touch with James since 2014. so we're coming up this the incident took place in the summer of 2014 so we're coming up on nine years since this happened and we've been we've been litigating since basically as soon as he was acquitted for the criminal charges now we're asking the Supreme Court to hear the case for the second time the main villain in the story of the police officer here he retired like several years ago imagine if it was this difficult for somebody to recover in a car wreck case sure or or the thing I always say is like you know in this case that this was just an unreasonable misidentification like you've got this situation where you're you're kind of scratching your head still to this day like why was there a federal task force searching for a guy wanted on a Michigan warrant for a crime he committed in Michigan and they're looking for him in the City Grand Rapids where the crime took place which is like you know 130 miles away from the nearest state border and everything else is like Lake Michigan so he's not going anywhere and they misidentify James for this guy because I'm sure they were just drag netting like there's no James looks nothing like this guy the guy was like six years older he had blonde hair yada yada and you're they're like what were they even doing there to begin with like why how is this a federal matter and then after they miss identified James and beat the crap out of him instead of being like Oh gosh we're so sorry you know big mistake on our part they charge him with three felonies and that trial is over and done with like nine months later and he gets he gets acquitted on all three charges for which he was facing decades in prison he he testified in his own defense I mean how did they first misidentify him so the story is uh this was a summer of 2014 at the time James was a student at Grand Valley State University and he was walking it was around it was in the afternoon he was walking between two summer jobs he had he had one job where he was laying fiber for a local company and then he had another job at a science non-profit he's like a computer guy these two men who we didn't know and who were in plain clothes and had on like a backwards baseball cap and a beard came up to him and started asking him all these questions and he was kind of like you know caught off guard answered a couple questions like well what's your name just said James which is his name and they quickly pushed him up against an unmarked SUV they never had identified themselves as police officers one of them grabbed his wallet out of his pocket and he thought he was being mugged he yelled out are you mugging me and tried to run away at which point these officers tackled him uh choked him unconscious and then when he woke up with this officer's arm still around his neck James bit the cop and then the cop beat the ever loving hell out of James and the language he used in James's criminal trial was they punched him as hard as I could as fast as I could and as many times as I could um James was screaming for help bystanders see this happening call 9-1-1 there's a little bit of footage that survived we'll talk about that in a second and these bystanders are saying like we think we're seeing a murder like they had no idea these guys were cops ultimately uniformed cops did show up on the scene and at that point James is like you know out of it because he's just gotten seriously beaten and so you've got this dash cam footage and James is being handcuffed and he's he's like are these guys real police like what's going on here meanwhile one of the officers who showed up walked around and one by one stopped every person who was there and made them delete footage that they'd shot um and so there was footage of the beating itself but that didn't survive and so what we have is just a couple short videos which are on our website of kind of the immediate aftermath while you still have these bystanders saying like on the spur of the moment like their present sense of the situation like oh my God they were being brutal like what was going on there we thought they were going to kill him and then you know the other person be like yeah they were really [ __ ] them up and so you had the cops show up obviously at this point whatever happened before this they know that this isn't the guy they're looking for and so to to instead of letting them go they take him to the hospital where he's handcuffed to a bed and then they book him into jail and he's charged with several accounts related to like assaulting police officers of various types and as it turned out these two guys were a Grand Rapids police detective named Todd Allen and an FBI agent named Douglas Brownback we're on a fugitive task force and for reasons unknown they were looking for a guy named Aaron Davidson who was wanted on a warrant of having broken into his boss's apartment and stolen some empty pop cans because Michigan has a 10 cent bottle deposit and some bottles of liquor so the crime underlying all of this was a guy that had stolen some some liquor and some empty pop cans and for some reason it's the the local police couldn't find this guy immediately upon going to his last known address and so they kicked it to this Federal task force which is then like waiting around looking for this guy the guy had blonde hair he was like 26 or 27 he had blue eyes and he was you know the height range they gave was like between five seven and six two and so you're like okay so this is someone that matches the description of like 20 of the Grand Rapids uh metro area uh they stopped James instead James has brown hair brown eyes is much shorter than this guy it was six ish years younger than this guy they asked him what his name was he said James not Aaron none of that was enough to dispel their suspicions apparently because then everything else took place after for that you have the situation where James is like actually innocent of absolutely everything there was not it's not like they tried to stop him for jaywalking and he ran away they thought he was someone he wasn't any reasonable person uh would have known that he wasn't this guy in fact the sixth circuit chided the police um on the qualified immunity issues because they said like your argument is that because you had no information or bad information that made your identification more reasonable when in reality the worse your information the less reasonable your identification was so thank God for that they just saw this guy walking down the the road basically and said oh he looks like the guy we're looking for I mean it was nothing more than that correct and you know we don't know because we've never done any Discovery I've got my suspicions about you know whether they even thought James remotely matched this description or whether they were probably just stopping like every every male every adult male that they ran across within some wide age range but we don't know any of that yet because we haven't engaged in any of the discovery why are officers in plain clothes doing stops like the whole point of being in plain clothes is so people can't identify you as an officer and then they go and they interact with people they don't identify themselves the people behave like this is not a police officer because by Design they don't look like police officers and then they after the facts say well he should have known we are police officers nobody knew James didn't know these bystanders didn't know ultimately they had these little tiny lanyards and that was it but in any case you know this this thing went through a criminal trial they tried to get James to plead out he didn't plead out um he testified in his own defense the officers testified and James was very quickly acquitted of everything and one of the jurors actually came out after the acquittal and hugged James and said I'm so sorry that you had to go through that so I think them seeing uh these officers on the stand they did not come across as as particularly believable in their side of the story here and James obviously um did because he won the case James was a college student when this happened what's he doing now presumably he's not still in college uh no so it's kind of crazy because when we filed this lawsuit James is now older than I was when we filed this lawsuit and so we've kind of grown up together in this horrific uh setting and obviously you know James has had the much worse experience but we've been doing this now together from us a decade and uh James dropped out of college because of all this obviously the stress and cost I mean this his parents basically spent their life savings on his criminal defense um the stress of it caused him to drop out of college he actually never went back to college but he's just a very smart kind of Auto didactic computer guy and just by sheer force of will and how good he is at computer stuff he has had a good career working in computers and he basically does a with the uh the marketing term for it is but he's a white hat hacker and so companies will pay him to try to find vulnerabilities in their in their computer systems and and in their security systems and so that's what he does you know ironically the you know the the best clients in these types of cases are people like James as soon as they do it to somebody like James or like an innocent elderly person then boom that's when you know people start to sort of pay attention and Care yeah that's just I mean that's a sad reality of of of our society and our legal system frankly you know James was you know a country boy from a rural County in northern Michigan and he was the kind of guy who was raised to to like you know respect the police respect authorities and stuff and this completely shook him obviously like you know again he wasn't doing anything wrong and that's the thing that I think you finally you know the the sort of less cynical view of what you just described is just explaining to people like you can do nothing and just be in the wrong place at the wrong time so it's not like you did something that was kind of bad and the reaction was you know overblown this is just anybody who happened to be walking down that sidewalk I mean this he he got beaten up in the yard of a church I mean it's it's just crazy stuff like you couldn't design a more sympathetic client than James was which is why it was so outrageous to us you know when I filed this lawsuit I was still in private practice at a law firm in Grand Rapids and both me and the partner who wanted to take this case on did it surely because it was so outrageous to us that this had happened and that this guy was just getting stonewalled and we you know we didn't we hadn't done an enormous amount of civil rights work at that point and you know in a lot of ways this this this experience for James changed my life too and it put me on this path of like I I'm gonna fight this fight as long as I can and it's just frustrating to see it in real time by all accounts this should be a easy case like a fantastic case for a plaintiff it should it should settle it shouldn't even go to trial but it didn't you know and here however many years later it's what it's been to the Supreme Court already one time it's been the FED in the federal appellate courts and still hasn't even been in front of a jury it's wild it's crazy it is it really is and it goes to show you you know not just how pernicious the immunity doctrines are and the substance of what they accomplish but in the fact that these things allow the government to stretch out this litigation so much that the only way you're going to get an attorney who can do it is if there's someone like me now who does this stuff pro bono or they just don't know what they're getting themselves into um and and and the government knows that they know that if they make this costly enough the lawyers won't take the cases and that's I think what we see a lot of times I mean there aren't a ton of people like you and me who are taking these cases regularly because if they're trying to make a living they say like okay well this is a great case but look I looked at Patrick's case and it seemed like a great case and he spent 10 years just trying to get to the answer uh to his his complaint and so that's not a good way to make a lot of money if you want to pay for a house somewhere do you have any idea what the attorney's fees would be at this point like ballpark hundreds of thousands of dollars the damages if you ever get to the jury are always extremely speculative you can't tell on the front end if it's a million dollar case or a ten thousand dollar case and if it's a ten thousand dollar case you spend a decade making three thousand bucks so the big the big problem here that separated this case from you know a case that was would have been a much better case is that you had this FBI agent you had state or local cops with one FBI agent and together they were working as a so-called Federal task force is that exactly exactly so this the the basically the presence of this FBI agent and I don't know if again because we've never done the discovery if there were more Federal officers on the task force but the usual way this works is there's one or two or maybe three federal agents and then you know a dozen or more local agents and that effectively federalizes the whole situation and that not only expands the the powers and the resources that they have and the fact frankly it expands the federal resources because FBI agents aren't supposed to be walking around policing Michigan crimes like we don't think that we're supposed to have a federal police force in this country but the reality is we do and through these task forces you'll have ATF agents and FBI agents and U.S Marshals walking around whatever City you happen to be living in looking for criminals who committed State crimes that have absolutely no federal Nexus even under the incredibly Broad and anti-constitutional overreach that we've seen with the criminalization at the federal level and so here you've got one FBI agent and a local Grand Rapids police detective they're enforcing a Michigan warrant for a crime committed in Grand Rapids at the behest of the Grand Rapids police department and when all this shakes out you essentially have the US government stepping in and providing defense for these guys and so at the very outset both of these officers Grand Rapids police detective who by the way is specially deputized as a us-mark partial which if people don't know that's how these task forces operate you take a local officer and you you have them assign a one-page piece of paper making them a U.S Marshal and now you know Bob's your uncle you have a Federal Officer who's also a state officer and the courts have so far reflexively treated every one of these guys to my knowledge as just purely Federal officers which gives them all sorts of special protections uh not the least of which the fact that the U.S attorney's office will often uh represent them in court and if not the federal government will pay attorneys to represent them but here we were litigating against the U.S attorney in the Western District of Michigan from the outset and then the case was appealed up and the doj in Washington DC Department of Justice took the case over and then of course to get to the U.S Supreme Court the solicitor general the highest appellate attorney in the country for the federal government is the one who filed the cert petition the first time around and so you have this sort of full force of the federal government behind defending the case and that's before you even get to any of the immunities uh and then of course once you're suing Federal officers instead of state officers you have a whole different set of immunity protections that are much more robust and increasingly so I mean last year the Supreme Court more or less eviscerated the Bivens cause of action which allows you to sue Federal officers and so if you take a Grand Rapids police officer who you can definitely Sue under the statute section 1983 and you magically turn him into a Federal Officer the courts will then say well actually you have to be able to explain why this should move forward under Bivins and the Supreme Court hates Bivens so you're you're almost always going to run out of luck there and so in a case like kings you file your lawsuit the violations are obvious you're saying this this guy didn't do anything so basically everything these officers did violated the Fourth Amendment because stopping him in the first place was unconstitutional and things only got worse from there and they get to come in and they say well first of all we get qualified immunity so you got to fight that battle second of all we're Federal officers so you can't sue us because there's no cause of action and then in James's case the new twist is that if you defeat those arguments the gov government will cook up some other Theory and so here we in addition to suing James and or and just in addition to suing the officers who beat James up we sued the federal government under a statute called the federal tort claims act which is supposed to provide an Avenue for Relief when federal employees violate uh tort rights under state law so it's supposed to expand the amount of accountability that you can get and the theory that we're fighting and have been for the last few years in the appellate courts then was the government turned around after we defeated the federal qualified immunity and said no it's clearly established that what these guys did was unconstitutional and the sixth circuit agreed it went through every step of the Stop and use of force and said you didn't have a reason to stop him at all because he didn't look like the guy you had no information so you couldn't have searched him you couldn't have searched his wallet you couldn't have stopped him when he tried to flee even if you could you couldn't have used the level of force you had because a Chokehold is deadly force and this guy hadn't done anything but even if he was fleeing from a a warrant it that was too much force still then the the federal government turned around and went to the Supreme Court and said okay here's our new Theory um this ftca has something called the Judgment bar which says the Judgment in an action shall bar any uh action against the individual officers and here the federal government won in the district court because of qualified immunity and so essentially because James can't sue the federal government from Michigan torts he's not allowed to sue these individual officers for violating the Constitution and that's the fight we're currently having about this new type of immunity I've talked to several people who have had these Federal task forces and they're not wearing body cams like your local cops even if their their regular employer requires body cams now that they're on this Federal task force they just bust in your house they're not wearing a body Cam and you can't get public records information for these Federal task forces and then you can't sue them because it's hard enough to find a lawyer to file these lawsuits anyways I you know I pay close attention to police nursing issues that kind of always have um and I had no idea that these task forces were operating this way like of course you know you hear sometimes the phrase task force and it means a bunch of different things but you have no clue that these task forces have expanded quietly across the entire country to the point where they're everywhere I mean we're talking about West Virginia and Grand Rapids Michigan it's not like this is DC Chicago New York these task forces are absolutely everywhere even local officials who are kind of you know more moderate or or whatever don't realize is once these officers become cross-deputized as task force members local officials lose all control like you said you can have your Police Department required to use body cams they'll be on these task forces without body cams there will be civil forfeiture laws that your state passes that says you can't seize people's money without due process and if they're on these task forces that won't apply and the craziest one is that and this is still underdeveloped and we've talked to a lot of people about these issues is even if something is so egregious that the local prosecutor wants to large one of these officers with a crime so for instance there was a case in Texas where a bank robbery task force with a local officer resulted in the officer shooting and killing a suspect under very egregious circumstances such that the local prosecutor charged him with murder the fifth circuit threw the case out and said local prosecutors can't prosecute Federal officers for doing their job the officer removal statute yeah well it's even more than that it's just the supremacy clause was the theory in that case kleinert uh United uh Kleiner versus state of Texas and therefore you can't charge you know these guys that are supposed to be within like your direct control as a local prosecutor with a crime if you want to uh what we say to to local and state officials is the only way that you can stop this is by preventing your officers being on these task forces to begin with a lot of people don't even know what's happened and it's one of those things and I think this is true with a lot of this immunity stuff is just they've been slowly boiling this frog for 60 years now and people are finally getting wise to it but realizing all at once that there's basically nothing you can do right now uh sort of digging us out of this the problem basically back to where things were in you know 1965. let's talk just real quick legal gymnastics like is there in your opinion a way around this issue that we have in this case so if a federal task force you know comes in someone's house and the guy who pulls the trigger is not actually a Federal Officer but he's just a local Deputy who's deputized as part of this task force yeah do you think there's a way that you could just as a plaintiff just thinking legal strategy to avoid all these Federal issues just Sue that individual police officer who was a deputy at the time of the shooting and and just make it a claim against that individual in his capacity as as a deputy rather than a Federal Officer if we don't if we don't name any any federal actual federal employees do you think there's any way to just keep it a state officer yes um and so I I have I this Theory I think should be very persuasive before we get into it I do want to say like I think you can and should structure it that way will that prevent you from having a bunch of fights about Federal Officer status and the rest of it probably not but it should and the argument I make is this and and this is an argument that we made in the sixth circuit in the king case and they ultimately said no to be fair they said no before the the Supreme Court restricted Bivins to the point of almost nothing through the Egbert decision and they Frank and they explicitly said like we're picking between Bivins and section 1983 but we don't think there's a real difference um and so now if that's not true anymore then maybe the courts will be a little bit more circumspect when they do this analysis but the argument goes like this you have this officer who's working you know on in the capacity of a federal task force I think there's all sorts of indicia that would probably at least potentially be relevant I don't think frankly there that a lot of it should be but for instance if you're looking at like a James King style case where these officers are effectively enforcing State warrants then you've got an even stronger argument that what they're doing is under color of state law but the the core of the argument should just be this simple section 1983 creates a cause of action for you to bring a damages claim against anyone who violates your rights under color of state law and if you are an officer of the state by virtue of being you know a local police officer or anything along those lines you have now acted under color of state law to violate someone's rights it doesn't say in 1983 you have to act primarily under caller of state law or exclusively under Colorado state law if you act under Colorado state law at all that should be sufficient for you to bring the section 1983 claims and say forget about bibbons I don't need to talk about Federal claims this guy's a local officer and a Federal Officer and if you do anything under color of state law as a local officer now you've come within the Ambit of section 1983 and that should be enough to get you past that now I've yet to see the courts accept that theory but again I think most of this analysis has been done a without much consideration of this actual issue because a lot of times like you know you just you know throw out all the claims you possibly have and then you end up fighting over 15 things instead of one and two you'll get a lot of decisions like the sixth circus decision in King where they basically say like who really cares like it doesn't matter you consume under either Theory so we're just going to treat them like Federal officers because it's you know called a federal task force even though for the record almost all these task forces have these memorandums of understanding that explicitly say like every member of this task force is still under the control of their local agencies yada yada but yes I think the theory is just as strong because the Supreme Court in different contexts has essentially adopted this this approach to color of state law that I'm articulating what can people do to help we've had so much time poured into this and expense poured into this that you know it's it's off the charts in particular in regards to this case you're going a second time time to the U.S Supreme Court yeah so like you said we're non-profit we're a charity every single good thing that we're able to do is is something we can do because the thousands of our supporters across the country you know send us checks you know once one-time checks or checks every month five dollars or fifty thousand dollars um and so if you want to support us you can go to ij.org and and donate money and like I said every single penny of it is going to go towards these missions and us trying to at the absolute Baseline ensure that your constitutional rights have a remedy in American courts if you don't have the money to support us you can support us by joining our activism group Americans against qualified immunity at aaqi.org there we do all sorts of other things that have to do with Outreach and so if you go sign up there we'll have all sorts of more specific things about how you can get in touch with your local Representatives or events that we might host where you could come and you know make your voice heard and so I think those are the two big ways that you can support us in this stuff and obviously you know sharing videos like this or talking about this stuff on social media every little bit helps because I think especially in the context of the immunities conversation the government's been able to accomplish so much because people have not been paying attention to these issues um and the more people do pay attention to them the more pressure there will be on legislators and on courts and just on Executive Branch officers to know that they're under a more watchful eye of the the people that they're supposed to be protecting and serving and the Oaths that they swear to uphold to defend the Constitution will you know be something that they have to more actively engage with at the end of the day we're talking about enforcing the Constitution and that should be the single most important thing that anybody who takes those Oaths in the whether they're sitting in a robe on a bench for a court or they're sitting in a legislature or passing laws or they're walking down the street enforcing laws they should be thinking about that before they think about any anything else what what's the time frame on on what's Happening Now in this case so we just filed cert um last Friday and the government has uh 30 days to either respond or waive its response because you don't have to respond um and so we'll find out in the next 30 days or so whether they do that and then if they do it'll be a couple weeks after that before it's distributed to the Supreme Court so we're probably looking at a couple months before we see what the Court's going to do and and for those of you who aren't familiar with the Supreme Court's process it's it's kind of very opaque and so you can't ever say like on this day we'll know whether they are aren't doing something it's usually like on this day they could deny the case or they might like the case enough that they move it to another conference a week or two later and then we'll know more at that point and so it always is kind of touch and go but we'll we'll figure out what's happening in the next couple of months again thanks for you know thanks for the discussion this is this is one of those cases that's just you know so important yeah thank you thank you John for having me on it and frankly thank you for talking about all these cases because I think you know the the education that you provide through your videos is incredibly important in this space because people just don't realize how easy it is these days for government actors to violate the constitution and usually get away scot-free so I'm happy to to talk about any of this stuff anytime if you value your constitutional rights you should pay close attention to the work of the institute for justice they fight for you all over the country I'll put their links in the description I've been lucky to work with them here in West Virginia in the family court judge search case but the king case is super important because it's Undisputed that James King was innocent that his civil rights were violated and the only real issue is whether as a citizen against the government whether there's anything he can do about it if a private citizen had beat him he could have taken him to court put him before a jury and sought money damages but here he can't because the people who beat him were his own government if they were just regular state and local cops it really wouldn't have been a problem he could have beat qualified immunity easily but here they were hiding behind the protection of the federal government so even though they were in fact state and local cops for the most part enforcing state and local laws he couldn't do anything about it and if this is allowed I think we'll see much more of this Federal deputization if not just to allow local police to violate the constitution without any consequences at all we can't let that happen so I'll definitely be following this one please share and also do whatever else you can to help the institute for justice in this fight donate if you can or just spread the word remember this is not about feelings it's not about whether you support police officers as people friends or family it's about protecting all people against misconduct by the government don't let your feelings get in the way freedom is scary deal with it I'll see you next time oh 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