by Michael Fortino, Ph.D.

Hundreds of rogue joint state-federal task forces—accountable to no one, and acting as units of vigilante justice—continually violate the constitutional rights of individuals while hiding behind the aegis of “qualified immunity.”

The concept of the “joint task force” was first initiated by President Richard Nixon in the early 1970s and designed to conduct raids as part of the “war on drugs.”

Dan Baum, author of the 1996 publication Smoke and Mirrors, suggests these entities were basically designed to be a “strike force that could kick down doors and put the ‘fear of God’ into drug offenders without burdensome hurdles like the Fourth Amendment or separation of powers.”

The ‘70s were a turning point in America’s concept of crime and punishment. On the big screen, actors like Charles Bronson in Death Wish or Clint Eastwood as Dirty Harry portrayed vengeful enforcers with no respect for social or constitutional restraints. Such restraints became viewed as impediments to “getting the bad guys”—the beginning of a social acceptance that suggested “get the bad guys, at any cost.” Hollywood fed the public’s xenophobic fear of lawless thugs by providing villains that begged to be viciously stomped out and, in so doing, helped propagate the idea that it is “okay” to ignore the Constitution when it comes to “cleaning house.”

In big cities and urban communities where drug abuse had become a blight, law enforcement was able to use a “heavy hand” without public scrutiny. In fact, it received public encouragement in the form of tolerance borne out of the establishment’s disdain for the social revolution and counterculture of the 1960s.

The public’s tolerance of rogue police practices became the seeds of punitive justice that we endure 50 years later.

Task force protocols and enforcement often show little regard for the bedrock constitutional principle of “innocent until proven guilty.” Increasingly, more and more innocent Americans have found themselves the subject of a criminal investigation and with an agent’s jackboot on their neck, both figuratively and literally.

One such victim was James King of Grand Rapids, Michigan. The 21-year-old college student was walking from one part-time job to another when he was accosted by two men who had been leaning against a black SUV. King had no way of knowing that he was being confronted by two agents — one, an FBI agent, the other, a local detective. The two officers were part of a joint task force looking for a fugitive who had stolen “a box of empty cans and several bottles of liquor” from King’s former boss’ apartment.

The men did not identify themselves as police. Instead, they began threatening King and pinned him against their vehicle. When they took his wallet, King believed he was being mugged and tried to escape; at which time, he was summarily tackled, choked unconscious, and severely beaten by the agents.

While he was being brutalized, King screamed for help from two passersby, who also did not recognize the attackers as police. The witnesses dialed 911. Interestingly, the bystanders captured the incident on video, but when police officers arrived on scene, the “uniformed” police followed “good-ol’-boy” protocols and moved to protect the agents by demanding that the witnesses immediately delete the contents of their video.

Agents then charged King with serious felonies despite the fact that the agents were carrying a photo of the actual suspect who looked nothing like King. Eventually, law enforcement admitted that King was not the suspect for whom they were originally searching, but the agents proceeded to arrest him anyway. King was cuffed, taken to a hospital, and later jailed until his parents could post bail. The county took him to trial despite not being the suspect, where he was eventually acquitted by a jury on all charges but not before bankrupting his family who funded his defense.

After the trial, King attempted to sue the two officers for violating his rights but ran head-on into a “blue wall.” The system closed ranks to protect the officers from any accountability for their lawless behavior.

The case was dismissed on federal jurisdictional grounds as a result of the claim having been filed within a state court, despite the fact that the charges originated with the State of Michigan.

The agents would now claim federal jurisdiction controlled, and all while hiding behind qualified immunity protections.

Military Roots

The concept of “qualified immunity” began with the U.S. military as a safeguard to minimize lawsuits from soldiers who were accidentally injured as part of their standard training in the field.

Because the military could not account for every type of injury, a blanket policy existed to provide legal immunity from lawsuits unless it could be determined that military personnel willfully and intentionally inflicted harm upon a soldier.

In the 1980s, the U.S. Supreme Court adopted this concept and opened a doorway to allow qualified immunity protections to become part of civilian juris prudence. Now, law enforcement agencies and other governmental entities would be permitted to violate the Constitution if doing so was necessary to perform their duty. The exception would be those instances where previous court rulings had explicitly prohibited a specific action by a police officer or an agent of the government. This blanket protection has now been stretched to protect every governmental agency from liability, including most government medical providers like the Department of Health and Human Services, which oversees medical care in many prisons and jails. Qualified immunity has made it nearly impossible for anyone (especially prisoners) to successfully prevail in a lawsuit against a governmental entity.

Essentially, if you’re a governmental bad actor who is the first to commit a specific type of bad act and thus before a federal court expressly points out the brutally obvious—that the act is in fact a bad act, you’re protected by qualified immunity. It’s basically the functional equivalent of the one-bite rule in tort law, where dogs get one “free bite” after which their owners are held responsible for damages. Based on the behavior of many law enforcement officers who are shield from accountability by qualified immunity, it’s an apt analogy.

In King’s case, the U.S. Circuit Court of Appeals for the Sixth Circuit eventually reversed the decision of the state court but maintained King could only argue violations of federal, not state, jurisdictional issues. As such, King would then be required to re-establish his complaint with a new set of issues, at which point, attorneys for the agents might then attempt to claim state jurisdiction as controlling law. Joint state-federal task forces routinely play what King’s attorney, Patrick Jaicomo, calls a “shell game.” They juggle state jurisdictional arguments when sued in federal court and federal jurisdictional arguments when sued in state courts. Task forces simply take advantage of their nebulous status to avoid prosecution, liability, and accountability.

Attorney Bob McNamara of the Institute for Justice put it this way, “the government wants to maintain a system where it’s heads, they win, tails, you lose.”

Through the 1980s and ’90s, joint task forces multiplied, and there are now hundreds of “task force” entities, often competing for the “bad guys” and overlapping in their investigations.

According to Radley Balko of The Washington Post, “In Pittsburgh alone, there is an Anti-Terrorism Advisory Council, a Crimes Against Children Task Force, an FBI Opioid Task Force, an Anti-Gang Task Force, a Task Force to Fight the Sale of Drugs on the Darknet, an Opioid Fraud and Abuse Detection Unit, a Pittsburgh Financial Crime and Electronics Task Force, a Western Pennsylvania Fugitive Task Force, and a Western Pennsylvania Violent Crimes Task Force.” Throw in the Pittsburgh Police Department, the Allegheny County Sheriff’s Office, and the Pennsylvania State Police, and you have the ingredients for a police state.

In addition, many of these joint task forces operate with little to no oversight. Documented complaints show they have an ongoing record of abuse that includes forceful and unwarranted raids, questionable shootings, physical assaults, wrongful arrests, and a multitude of other law enforcement infractions that, at times, border on corruption or at least abuse of authority.

In 2015, the Obama administration’s Justice Department attempted to conduct a financial study of task-force operations. It found extensive insufficient data and deficient record keeping, so much so, that the administration reported that it was virtually impossible to determine the type of routine police work these groups were originally tasked to conduct.  

Source: washingtonpost.com, reason.com, ij.org (Institute for Justice)

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