Let’s hope only a small number of us think it’s OK for squads of heavily armed federal agents to break down our doors, throw in some flash bangs, and then throw us and our children to the ground—only to realize they are in the wrong house.
And if it’s not OK, the victims of this sort of nightmare should be paid for the damage to their homes and the injuries they suffered. Yet, last year, in the case of Hilliard Toi Cliatt, his partner Curtrina Martin, and her 7-year-old son, an Atlanta-based federal appeals court said the victims were powerless to do anything about it.
In a timely message to federal law enforcement, the Supreme Court has unanimously overturned that court, allowing the claim for damages to proceed.
Support for allowing the lawsuit isn’t about demonizing the police. When some activists did demonize them following the murder of George Floyd, the police retreat left us with dirty, dangerous, and declining cities, bolstering Donald Trump‘s case to reclaim the presidency.
Now Trump is showing us the worst of the contrary view—shoot first, and—if anyone asks questions later—shoot them too. Trump is a consequence of the perceived lawlessness of the left—lawlessness against the police—lawlessness regarding immigration. Trump embodies right wing lawlessness—judges arrested, a senator assaulted, court orders ignored, corruption rampant.
None of these national mood swings likely make sense to Curtrina Martin, her partner, and her son. They simply wanted to live in peace and to punish those who shattered it. Long ago, they would have been powerless. A federal statute specifically barred lawsuits against the police for the injuries they might inflict. But in 1973, Herbert Giglotto and his wife awoke to find 15 plain-clothed federal agents in their bedroom. They tied Giglotto up, held a gun to his head, and ransacked his house. Realizing they were in the wrong house, the agents left. Nearby, 30 minutes later, agents made the same mistake again bursting in on an innocent family and holding them at gunpoint.
This seemed intolerable to Congress, so the next year it amended the Federal Tort Claims Act to allow victims to the federal government when law enforcement agents abused private citizens with things like assaults and false arrests. That should have settled things.
So why did the appeals court block the Martin lawsuit? It’s complicated, but let’s just say that this law is a tangle of rules and exceptions, and for the past 50 years courts have eroded victims’ rights to the point where almost all lawsuits against federal agents fail. Most of the time, courts hold that officers were exercising permissible “discretion” while inflicting injuries, and, the lower court in Martin used the novel idea that the supremacy of federal law over state law neutered the 1974 law’s provision exposing law enforcement agents to the same liability a private citizen would have faced under local law.
Yet the heart of the rulings seems to have been the same wild pendulum swings we see in society as a whole when it comes to law enforcement. When Congress changed the law in 1974, America was still reeling from the Robert F. Kennedy and Martin Luther King, Jr. assassinations, the Kent State killings, and the 1968 “police riot” in Chicago. Support for the police was at an all-time low and crime shot up. During the two Reagan terms, the two Bush presidencies, and during Trump term one, America swung back toward lionizing rather than criticizing the police, with unconditional support for the police peaking after 9/11 and only declining again 20 years later with the George Floyd murder and the outcry that followed it.
Perhaps this time, with a unanimous ruling from the Supreme Court, the judiciary can help American justice find a third way. The Martin case isn’t over. The High Court sent it back to the lower court to consider the part of the law that blocks lawsuits challenging discretionary decisions that implicate public policy. If the court rejects the silly idea that a wrong house raid is the product of a public policy judgment call, common sense may prevail in lawsuits against federal law enforcement—righteous police will be protected and rogue police will be accountable.
Thomas G. Moukawsher is a former Connecticut complex litigation judge and a former co-chair of the American Bar Association Committee on Employee Benefits. He is the author of the book, The Common Flaw: Needless Complexity in the Courts and 50 Ways to Reduce It.
The views expressed in this article are the writer’s own.
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