King v. United States, 17-2101

• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)
• Citation: 917 F.3d 409
• Docket Number: No. 17-2101,17-2101
• Parties: James KING, Plaintiff-Appellant, v. UNITED STATES of America, et al., Defendants, Douglas Brownback; Todd Allen, Defendants-Appellees.
• Decision Date: 25 February 2019

917 F.3d 409

James KING, Plaintiff-Appellant,
v.
UNITED STATES of America, et al., Defendants,

Douglas Brownback; Todd Allen, Defendants-Appellees.

No. 17-2101

United States Court of Appeals, Sixth Circuit.

Argued: August 1, 2018
Decided and Filed: February 25, 2019

CLAY, Circuit Judge.

917 F.3d 416

James King ("Plaintiff") appeals the district court's order granting summary judgment¹ for Officers Todd Allen and Douglas Brownback (together "Defendants") on Plaintiff's Fourth Amendment claims arising under 42 U.S.C. § 1983 or, alternatively, under the implied right of action set forth in Bivens v. Six Unknown Fed. Narcotics Agents , 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). The district court also granted summary judgment for two additional defendants, including the United States, who are not parties to this appeal. With respect to Plaintiff's § 1983 or Bivens claims, this Court REVERSES the judgment of the district court for the reasons set forth below.

BACKGROUND

A. Factual History

On July 18, 2014, Defendants were searching for a criminal suspect named Aaron Davison. Police believed that Davison had committed felony home invasion, and the State of Michigan had issued a warrant for his arrest. Defendants were members of a "joint fugitive task force between the FBI and the City of Grand Rapids." (R. 30 at PageID #108.) Defendant Allen was a detective with the Grand Rapids Police and had been assigned to the FBI task force full-time. Defendant Brownback was a special agent with the FBI. Neither officer was wearing a uniform as they conducted their search, but both of them were wearing lanyards with their badges displayed over their plainclothes.

Defendants knew that Davison was a 26 year-old white male between 5'10? and 6'3? tall with glasses; short, dark hair; and a thin build. Defendants also knew that Davison had a habit of buying a soft drink from a particular gas station every day between 2:00 p.m. and 4:00 p.m. And Defendants had two photographs of Davison. In the first photograph, the lighting was so dark that Davison appeared as the silhouette of a man playing electric guitar. The second photograph, a driver's license photo, showed Davison's face clearly, but the photo was seven years old at the time of the search.

Around 2:30 p.m., Defendants saw Plaintiff walking down the street in an area near the gas station where Davison was

917 F.3d 417

known to buy his daily soft drinks. Although Plaintiff was actually a 21-year-old college student who was walking between his two summer jobs, Defendants thought Plaintiff might be their suspect because Plaintiff was a young white male between 5'10? and 6'3? and was wearing glasses. From their unmarked vehicle, Defendants studied Plaintiff's face and decided that there was a "good possibility" that he was Davison. (R. 73 at Page ID #429–30.) Defendants parked near Plaintiff and approached him. According to Plaintiff, Defendants never identified themselves as police officers. But Defendants assert that Allen identified himself as a police officer when he first approached Plaintiff.

Defendants started asking Plaintiff questions. They asked Plaintiff who he was, and Plaintiff truthfully answered that his name was James. Defendants then asked Plaintiff for identification, and Plaintiff said that he had none. Defendants told Plaintiff to put his hands on his head and to face their vehicle. Plaintiff later testified that he complied because Defendants "had small badges around their chest, and [he] assumed [Defendants had] some sort of authority." (Id. at PageID #474, 477.) Defendants asked Plaintiff if he was carrying any weapons, and Plaintiff told them that he had a pocketknife. Detective Allen removed the pocketknife from Plaintiff's pocket, commented on the size of Plaintiff's wallet, and then removed that, too, from Plaintiff's pocket. Plaintiff asked, "[a]re you mugging me?" and attempted to run away, but Detective Allen tackled him, grabbed Plaintiff's neck, and pushed him to the ground. (Id. at PageID #474.) Plaintiff yelled for help and begged passersby to call the police. Detective Allen then put Plaintiff in a chokehold, at which point, Plaintiff claimed, he lost consciousness. Several seconds later, when Plaintiff came to, he bit into Detective Allen's arm. Detective Allen then started punching Plaintiff in the head and face "as hard as [he] could, as fast as [he] could, and as many times as [he] could." (Id. at PageID #433.) Plaintiff attempted to escape and to fight back and eventually released his bite. But he could not get away; the fight continued for over sixty seconds.

As Detective Allen continued to punch Plaintiff in the head and face, several bystanders called the police and began filming the incident. Numerous police officers arrived on the scene, one of whom ordered the bystanders to delete their videos because the videos could reveal the identities of undercover FBI agents. Some of the bystanders deleted their videos, and footage of the actual altercation was never discovered. The surviving footage from immediately after the incident includes one bystander who can be heard saying, "I was worried.... They were out of control pounding him.... They were pounding his fa- -head for no reason; they were being brutal." (Ex. 6, Timestamp 0:47–1:11.) A bystander who called 911 told the operator "[t]hey're gonna kill this man.... We can't see the victim now. They're over top of him. They look like they're suffocating him.... I understand they have badges on, but I don't see no undercover police cars, no other—backup, no nothing." (Ex. 18, Timestamp 1:43–3:21.)

Plaintiff was transported from the scene to the emergency room, where he received medical treatment. The emergency room doctors concluded that Plaintiff's injuries did not require him to be admitted for further treatment, and they released him with a prescription for painkillers. Upon Plaintiff's discharge, police arrested him and took him to Kent County Jail. Plaintiff spent the weekend in jail before posting bail and visiting another hospital for further examination. Prosecutors pursued charges against Plaintiff, but a jury acquitted him of all charges.

917 F.3d 418

B. Procedural History

Plaintiff brought this suit alleging that Defendants violated his clearly established Fourth Amendment rights by conducting an unreasonable seizure and by using excessive force. Plaintiff also asserted a claim against the United States. The district court found that it lacked subject-matter jurisdiction to hear Plaintiff's claim against the United States, and it granted summary judgment for Defendants on the basis that Defendants are entitled to qualified immunity. Plaintiff then filed this timely appeal of his claims against Defendants.

DISCUSSION

A. The Federal Tort Claims Act Judgment Bar Does Not Preclude Plaintiff's Claims Against Defendants

The Court requested supplemental briefing on whether the judgment bar of the Federal Tort Claims Act ("FTCA"), see 28 U.S.C. § 2676, prohibits Plaintiff from maintaining his § 1983 or Bivens claims against Defendants. After considering the parties' arguments and examining the governing statutes and case law, the Court concludes that the FTCA does not preclude Plaintiff's claims.

1. Analysis

a. Standard of Review

This Court reviews the application of the FTCA judgment bar de novo . See United States v. Kuehne , 547 F.3d 667, 678 (6th Cir. 2008) ("Because this issue is a matter of statutory interpretation, we conduct de novo review." (quoting United States v. VanHoose , 437 F.3d 497, 501 (6th Cir. 2006) )).

b. Relevant Legal Principles

"Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit." F.D.I.C. v. Meyer , 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994) (citing Loeffler v. Frank, 486 U.S. 549, 108 S.Ct. 1965, 100 L.Ed.2d 549 (1988) ). Sovereign immunity is jurisdictional in nature. Id.

"In 1946, Congress passed the FTCA, which waived the sovereign immunity of the United States for certain torts committed by federal employees." Id. at 475–76, 114 S.Ct. 996. The FTCA's waiver provides "subject matter jurisdiction for plaintiffs to pursue state law tort claims against the United States." Milligan v. United States , 670 F.3d 686, 692 (6th Cir. 2012) (citing 28 U.S.C. § 1346(b)(1) ). " Section 1346(b) [of the FTCA] grants the federal district courts jurisdiction over a certain category of claims for which the United States has waived its sovereign immunity and ‘render[ed]’ itself liable." Meyer , 510 U.S. at 477, 114 S.Ct. 996 (quoting Richards v. United States , 369 U.S. 1, 6, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962) ). "A claim comes within this jurisdictional grant" only if it is:

[1] against the United States, [2] for money damages, ... [3] for injury or loss of property, or personal injury or death [4] caused by the negligent or wrongful act or omission of any employee of the Government [5] while acting within the scope of his office or employment, [6] under circumstances where the United States, if a

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