One of the most common mantras you hear about the federal legal system is that the judges should not make laws—that is, make laws from the bench—but should interpret and apply the law as it is written. A new case potentially before the Supreme Court could be an especially loud reminder of that.
A bipartisan group of members of Congress, including Senators Ron Paul (R-Ky.), Ron Wyden (D-Ore.) and Cynthia Lummis (R-Wyo.), along with Reps. Thomas Massie (R-Ky.), Nikema Williams (D–Ga.), Harriet Hageman (R–Wyo.) and Dan Bishop (R–NC) – are urging the Supreme Court to take up the case, which revolves around a family whose house was wrongly raided by the police. FBI in the middle of the night and who was subsequently denied the right to sue for damages.
But the reason the family was denied was particularly perverse, the members of Congress recently wrote in a letter to the Supreme Court, arguing that the U.S. Court of Appeals for the 11th Circuit had turned the relevant law on its head when it ruled on Curtrina Martin, the prosecutor, blocked charges.
Early one morning in 2017, Martin and her then-fiancé, Hilliard Toi Cliatt, were woken by the FBI detonating a flash grenade in their home, ripping their door off its hinges. The officers then proceeded to their bedroom and found the couple hiding in the closet, where they had retreated in fear; one officer dragged Cliatt outside and handcuffed him, while another pointed his gun and shouted at Martin, who says she fell onto a rack in the rapidly unfolding chaos. Her seven-year-old son was in his room and she says her thoughts went to a dark place.
“I don’t know if there’s a good word I can use” to express the fear she felt, Martin told me this summer.
The FBI could not determine who they came for because the suspect did not live there nor had any relationship with Martin or Cliatt. When Martin sued, the 11th Circuit not only granted immunity to Lawrence Guerra, the leader of the SWAT raid, but the judges also said her claims could not proceed under the Federal Tort Claims Act (FTCA), the legislation that allows people allows you to carry different types of weapons. state tort against the federal government.
Most ironically, however, the FTCA was revised in the 1970s with a law enforcement condition that it greenlight lawsuits against the federal government for intentional torts committed by federal law enforcement agencies. The inspiration for that law, the congressmen write, was two April 1973 raids on families in Collinsville, Illinois.
These raids attracted national attention more than fifty years ago. On the night in question, federal officers raided the home of Herbert and Evelyn Giglotto; About 30 minutes later, several officers raided the home of Donald and Virginia Askew. Neither house was actually targeted by the federal government.
“Mr. and Mrs. Giglotto testified under oath today that they were handcuffed by screaming officers, thrown onto their bed, shouted at with a stream of obscenities and repeatedly threatened with death as an officer held a cocked gun to Mr. Giglotto’s head loved,” wrote The New York Timesin which he reported testimony before the Senate in May 1973. “Much of their apartment was looted and damaged.”
Charles Percy, then a Republican senator from Illinois, chaired that hearing. “You can rest assured,” he said, according to the newspaper Times“that I will find out who ordered this investigation.” He would later champion the FTCA’s law enforcement clause.
The similarities between Martin’s experience and those of the Giglottos and the Askews are difficult to ignore, as the congressmen write in their letter to the Supreme Court.
“The [law enforcement] Proviso’s plain text provides – and was specifically implemented to ensure – that victims of wrong-home raids by federal agents like the Collinsville families can seek redress against the United States for wrong-house raids,” they write. “Nevertheless, the Eleventh Circuit’s decision invalidates the law enforcement requirement precisely in that circumstance.”
The debate over the responsibility of law enforcement in the US has been a tortured one. Qualified immunity – the legal doctrine that protects state and local government actors from federal civil lawsuits if their alleged misconduct was not “clearly established” in prior case law – was created by the Supreme Court. Despite some movement in 2020 and 2021, Congress has not legislated this. Many victims of alleged government abuse are therefore excluded from finding relief.
But in Martin’s case, it seems like Congress did provide an appropriate legislative remedy – and the 11th Circuit reversed it. “That asymmetry is untenable,” the members of Congress wrote, “and is inconsistent with Congress’s purposeful decision fifty years ago to accept responsibility and provide reparations for those harmed by the misdeeds of federal law enforcement officers.”
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