Prisoner Wants to Sue Feds for Sexual Assault by Guards

Posted February 19, 2013 in Criminal Law Government Litigation by

Man with his head down holding the bars of a prison cell


The federal government is safe from most lawsuits under the concept of immunity. But it may not be safe from itself: Its own lawyers decided an indigent prisoner who claims prison guards sexually assaulted him just might be right that he should be allowed to sue the federal government.

The U.S. Supreme Court on Feb. 19 heard oral arguments in Millbrook v. United States, a remarkable case originally brought by Kim Millbrook, a prisoner without a lawyer who reportedly hand-wrote his own complaint. The case now features appointed and impressive lawyers on both sides, arguing over a sacred concept in American law.


Can’t Sue the King – Or Can You? 

Generally, the federal government enjoys “sovereign immunity” from claims by people who say it harmed them, explains Kevin Russell, a partner at Goldstein & Russell, P.C., in a recent SCOTUSblog article about the case. Sovereign immunity comes from the idea that the king created the courts, so the courts can’t very well allow suits against the king.

But the Federal Tort Claims Act (FTCA) keeps the federal government on the hook for the wrongful acts of its employees, allowing for a waiver of the government’s usual immunity. However, there is an exception: immunity is not waived – i.e., the feds are still protected and can’t be sued – when “intentional” wrongs like assault and battery are involved.

But the plot thickens! “There is an exception to the exception,” Russell says. “The so-called ‘law enforcement proviso’ allows suit for ‘any claim’ of ‘assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution’ arising out of the acts of federal ‘investigative or law enforcement officers.’” In other words, you can sue the feds if the government employees who abused you happen to be law enforcement officers.


Government Switches Sides

Millbrook alleged that at the federal pen in Lewisburg, Pa., he was held down and forced to perform oral sex on a guard. Because sexual assault would seem to qualify as an intentional wrong, it should fall within the “exception to the exception,” which means Millbrook would be able to sue the feds – if a federal prison guard is considered a law enforcement officer, that is.

The 3rd U.S. Circuit  Court of Appeals said that while the guard in Millbrook’s case counts as a law enforcement officer, the law enforcement proviso only allows suits to be brought against the feds when that officer is “executing a search, seizing evidence, or making an arrest.” 

The prison guards in this case were admittedly not doing those things, so the appeals court said the federal government is still immune from Millbrook’s suit.

Strangely, the government agreed with the prisoner’s contention that the 3rd Circuit was wrong. That’s because the government knew that federal courts around the country were split over whether to apply sovereign immunity in similar cases.

The government wanted a definitive answer to the question but didn’t want to defend the 3rd Circuit’s decision, so the Supreme Court appointed a lawyer as a “friend of the court” to defend the decision, along with appointing another lawyer to represent Millbrook. A third lawyer argued for the federal government, in support of reversing the 3rd Circuit.


Oral Arguments

During oral arguments, the Justices grilled the lawyers on what it means to be a law enforcement officer, and what counts as law enforcement activity. The first two lawyers, who argued for reversal of the 3rd Circuit’s decision, wanted the prison guards’ role to be defined broadly. 

The lawyer assigned to argue in favor of upholding the 3rd Circuit’s ruling wanted the Court to limit the law enforcement proviso to apply only when a federal officer is acting in a specific “law enforcement” capacity; the Justices questioned him about how that applies to prison guards.

Justice Kennedy worried aloud that if the Court ruled in favor of Millbrook, allowing him to sue the government for the acts of prison guards, “this is going to vastly expand the number of cases in which the Government is the defendant.” 

Even if Millbrook is allowed to sue the feds, experts are not hopeful about his chances of winning on the merits of his case. “He is what is known in the trade as a ‘frequent filer’ – he files lots of cases against the prisons where he has been forced to reside,” pointed out NPR. “And he has not yet won a single one of them.”

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