A pro se prisoner, suing because he was subjected to the prisoner’s nightmare of being forced to perform oral sex on a guard, became that one in a million winner in the litigation lottery. Max Kennerly describes what happened:
The case arose from a prisoner in the United States Penitentiary in Lewisburg, Pennsylvania, who alleged “that he was taken to the basement of the SMU and forced to perform oral sex on Correctional Officer Pealer while Correctional Officer Edinger held his neck and Correctional Officer Gimberling stood watch by the door.” “SMU” stands for “Special Management Unit”; if you’ve ever watched a movie or TV with a prison in it, you know SMU as “ the hole .”Kim Millbrook sued. He had no lawyer. He did it himself. He read a law, 28 U.S.C. § 2680(h), and it said that he could. Nobody told him that the Third Circuit had decided in 1986 that the law, which allowed a person to sue the United States of America for a laundry list of torts, had been eviscerated in Pooler v. United States , and that since then, the law no longer meant what it said.
And so Kim Millbrook sued. And a unanimous Supreme Court held that the Third Circuit was wrong , and all those cases that had been dismissed because of Pooler were wrong, and that Kim Millbrook, pro se litigant, was right.
It’s scary to lawyers when something like this happens. In a weird way, we applaud the efforts of the pro se litigant because of the David and Goliath nature of the battle, because of our association with the little guy against the overwhelming might of the government. We know that battle only too well.
But we hear the views of the defendant all the time. They tend to be wild, crazy. They tend to be wrong. Then, a case like this comes along and rocks the foundation of what we know the law, including the caselaw, says. We fear this encourages the craziness. We fear this undermines our learned advice. Had Kim Millbrook been able to seek the assistance of counsel, he would have been told that his position, no matter how disgusting and utterly wrong the conduct of the guards might be, would not survive a motion to dismiss.
Most people, essentially everyone except a lawyer familiar with Pooler, would have thought the lawyer’s advice couldn’t possibly be right. The law said what it said, that an aggrieved person could sue the United States of America for the assault and battery committed by the guards in the course of their employment, under color of law. What did it matter whether they were engaged in a search or forcing an inmate to perform oral sex in the hole?
The lawyer would have known better, knowing that Pooler interpreted the language of the Federal Tort Claims Act of 1974 to certain specific instances of law enforcement activity. It didn’t include what happened to Millbrook. And so, the lawyer would have gently but firmly told Millbrook that there was nothing he could do. But Millbrook didn’t have a lawyer, so he just did it. And did it again. And did it again. And he won.
Justice Clarence Thomas wrote for a unanimous court. As the syllabus explains, it wasn’t a hard decision:
Held: The law enforcement proviso extends to law enforcement officers’ acts or omissions that arise within the scope of their employment, regardless of whether the officers are engaged in investigative or law enforcement activity, or are executing a search, seizing evidence, or making an arrest. The proviso’s plain language supports this conclusion. On its face, the proviso applies where a claim arises out of one of six intentional torts and is related to the “acts or omissions” of an “investigative or law enforcement officer.” §2680(h). And by cross referencing §1346(b), the proviso incorporates an additional requirement that the “acts or omissions” occur while the officer is “acting within the scope of his office or employment.” §1346(b)(1). Nothing in §2680(h)’s text supports further limiting the proviso to conduct arising out of searches, seizures of evidence, or arrests.There are some days when a good, textualist decision is just what we need. This was one of those days. It only took 27 years for a court to opine that the law means what it says. And it took a pro se litigant who refused to accept that this to make it happen.
This doesn’t mean that every non-lawyer who argues that the law means what they think it means is right, or isn’t completely nuts. They are, the vast majority of the time, and usually to their extreme detriment. The “blind squirrel” theory is in full play here.
But it also reminds lawyers that bad caselaw, the Poolers of the legal world, have to be fought. Over the years, lawyers may have challenged the Pooler decision many times, ultimately being smacked down time and again. What made the Supremes take up the case this time? Kennerly suggests it may be Justice Sam Alito’s practice of having his own chambers review every cert petition rather than rely on the sagacious wisdom of a pool clerk. Still, that fails to explain why Alito’s clerk picked up on an issue that so many clerks before him missed or thought unworthy of the time of the powerful justices.
The question asked is how many times can you beat the horse before accepting it’s dead. Pooler was a dead issue, until it wasn’t. Had a lawyer argued this point, it would have hardly been surprising if the Justice Department lawyer responded by arguing that it was frivolous, a point of law so well settled that no reasonable argument for change could be made.
Yet, Kim Millbrook made it. And the DOJ decided that it wasn’t going to dispute it. And the Supreme Court, unanimously agreed with it. You never know.
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Such a story warms my heart; I’m quite fond of blind chickens and, yes, they too, under the ADA (CDA??), deserve the corn or two they sometimes stumble upon. . .
You see, you may be a Little Leaguer and dream of stepping up to the plate to face Nolan Ryan in his prime. It’s likely his 108.1 mph fastball will actually spin you around in the box as it goes by without touching you. It is probable that you take three wild swings that will not come anywhere near the ball – strikeout!! But, every once in awhile, you might, through pure dumb luck, achieve a foul tip. Less frequently, you’ll get a tiny piece of the ball for a blooper single over the first baseman’s head. And then, on that rare, rare occasion, unlike Mighty Casey, everything goes perfectly; time slows down; Ryan brings his heat but you still see the ball. You connect with the meat of your bat and magic happens . . .
Grand slam homer, with two strikes on, in the bottom of the ninth inning to win the game!! . . .
And for that one moment, all is right in the world . . .
Because you had the balls to even step up to the plate, against all odds, and, thus, gave yourself the opportunity to achieve greatness . . .
Kim Millbrook, take a bow, you’ve earned it . . .
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Kim Millbrook had nothing to lose by trying, and nothing but time on his hands. And so, your Casey at bat analogy works. But if the batter who struck out was benched for, say, 20 years, well, not so much.
Most cases, I think, end up like the 1986 Red Sox… one strike-out away from winning the World Series and they end up losing not just the game, but the Series as well.
While it would be nice to be able to forget such things, there are things, like incarceration, that are just impossible to forget.
Exactly. Who wants to be the Bill Buckner of the legal system?
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I want to be Bill Buckner. He was a great player . . . Should be on the HOF, IMO . . .
Though Buckner’s story goes under the heading of what my mentor once told me, “One oh-shit wipes out a 100 attaboys” . . . and that’s a crying shame, but that’s why they call it life . . .
He was funny as hell on “Curb Your Enthusiasm” a few years ago . . . Dude’s got a good sense of humor . . .
Regarding Kim Millbrook, the thing is, he’s still in jail, again riding the bench, but hopefully the prison guards will quit riding him, prison rape-style . . .
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I watched (even though I can’t stand baseball) as Mookie’s hit rolled through Buckner’s legs, stunned. That alone earns him a place in the HOF as far as I’m concerned. Mookie too.
Very nice to see that they ALL got it right.
Whenever I see that rare unanimous decision, I wonder if four voted the wrong way by mistake.
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Greenfield, ye hath little faith . . .
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Good to see that the Obama DOJ took the sane position on the case – seems the court had to appoint somebody to argue against the petitioner, because the government was calling for Pooler to be overturned just as much as Millbrook did.
(Which makes me wonder why they raised the argument in the first place, but a win’s a win I suppose.)
I once won a pro per state writ of habeas corpus (I drafted all of the papers and argued at the hearing), that prevented the lower court from prosecuting me merely for exercising my Fourth Amendment rights (even and author of a defense CEB law book didn’t like my win). The government appealed to the court of appeal. Every public defender I talked to said I would lose. So, at the court of appeals suggestion, I applied for the state public defender, who had to take the case. I did most of the legal research for the attorney and made suggestions for argument. She found a case I overlooked. She drafted an excellent brief, probably better than I could have at the time. She called me all dejected and said that the appellate judges gave her a very hard time and she thought I was going to lose. You probably wouldn’t believe the excitement in her voice when she called me and said we defeated the state.
Who doesn’t root for the blind squirrel?
Argh stop instilling hope!