Fremont native Patrick Jaicomo, right, stands with James King in Washington D.C. Last week, Jaicomo presented King’s case by telephone to the U.S. Supreme Court, citing concerns about qualified immunity and sovereign immunity for police.

WASHINGTON, D.C. — A Fremont native got his chance to argue a case in front of the U.S. Supreme Court last week.

Attorney Patrick Jaicomo works for the Institute for Justice in Arlington, Virginia, along with his wife, Kenzie, also a Fremont High School graduate. He represents James King, who was severely beaten by plain-clothes law enforcement officers in July 2014 in Grand Rapids, Michigan.

While the police admit it was a case of mistaken identity, King was first acquitted of criminal charges related to the incident before going on to sue the two officers — FBI Special Agent Douglas Brownback and Grand Rapids police detective Todd Allen — in a Michigan district court, represented by Jaicomo, who was then working for a Michigan firm. A federal judge dismissed the case but it was reversed in the Sixth Circuit Court in February 2019.

In what Jaicomo called a “shell game,” Brownback and Allen petitioned the U.S. Supreme Court, arguing that further proceedings are necessary because the case was dismissed by a trial court. Jaicomo suggests that joint task forces made up of local and federal agents can skirt state law and that the privileges provided by qualified immunity allow them to commit acts that would be illegal for an everyday citizen.

On Nov. 9, Jaicomo presented his case to the U.S. Supreme Court, telephonically due to the COVID-19 pandemic.

“James was with me in the room, but he did not speak. Only attorneys make presentations to the U.S. Supreme Court,” said Jaicomo. “The argument went very well. All of the justices asked questions and those questions either supported our interpretation of the law or criticized the government’s. The only note helpful to the government was the suggestion by several justices that perhaps the court should not address the issues more fatal to the government’s position.”

Police brutality, specifically as reflected by the Black Lives Matter movement spurred by the May 25 killing of George Floyd by Minnesota police and national political unrest, has become a hot-button topic. In Angola, BLM protests raged for months, countered by flag-waving protesters who said they were supporting police.

“Nothing in the court’s questions suggested that the current climate surrounding police accountability would factor into the decision, and I would be very surprised if it does. The court will likely address this case as a matter of statutory interpretation in light of the highly technical question the government brought to the court for review,” said Jaicomo.

The U.S. Supreme Court receives about 10,000 petitions a year and only hears 75-85 of those cases, according to The Judicial Learning Center. Most of them are appeals from lower courts.

“The justices of the Supreme Court are most likely to take cases that will affect the entire country, not just the individuals involved,” says Judicial Learning Center educational material. “They want to clarify legal issues that are important to as many people as possible, so they take cases that will have a large constitutional impact, or that answer important legal questions that affect the whole nation.”

At issue in Brownback v. King is whether King had the right to challenge the decision of the U.S. District Court for the Western District of Michigan under 1971 case law titled Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics.

The Supreme Court created qualified immunity in 1982, granting all government officials immunity for violating constitutional and civil rights unless the victims of those violations can show that the rights were “clearly established.” Very precise case law must be cited to prove those rights.

“From a legal perspective, it’s absolutely unacceptable that anyone representing the government has the ability to violate the Constitution without consequences. But that is precisely what doctrines like qualified immunity and sovereign immunity permit,” said Jaicomo.

Qualified immunity and sovereign immunity are addressed in the King case. Sovereign immunity implies government and legal officials cannot commit a legal wrong and are immune to civil suit or criminal prosecution.

The Supreme Court decision could take many months to be rendered. The King case can be followed on the court’s web page at supremecourt.gov.

“There’s no doubt that there is a movement for change. We are hopeful that as a result of that movement and our litigation, we will be able to reduce the immunities that are enjoyed by all government workers, including police, and increase constitutional accountability across the board,” said Jaicomo. “I can’t make any predictions about what the future will hold. I’m hopeful that change is around the corner, but it seems very unlikely that comprehensive changes are coming any time soon. If we can get the ball moving in the right direction, the changes will probably be incremental and sporadic. And that’s OK. Either way, the Institute for Justice will be there fighting for the rights of all Americans.”

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