Gill v. United States
On Friday, January 29, a Federal District Judge in Massachusetts issued an opinion in the civil action filed by civilian lawyer Steven Gill against the United States government for the actions of a military commission which seized, detained, and imprisoned Gill in order to compel his testimony before the commission. The Court ruled that Gill filed valid claims for unlawful trespass for searching Gill’s home and intentional infliction of emotion distress for using excessive force.
Gill is a civilian lawyer who formerly served as a JAG with the United States Navy. In January, 2015, while serving on active duty as the legal advisor pro tempore for the Al-Nashiri military commission, Gill reported to his superiors that certain federal employees were violating a Disqualification Order entered by the military judge, which prohibited them from working on Al-Nashiri’s case. Soon after, Gill was discharged from active duty.
On September 7, 2016 Gill voluntarily traveled to Virginia in his civilian capacity to proffer testimony requested by defense counsel for Al-Nashiri. At the end of that session, the military judge informed Gill he would need to return in October to complete his testimony. On or about October 13, 2016, Gill received a military commission subpoena to appear in Virginia on October 17, 2016; however, on October 16, Gill mailed an “application for relief” to quash the subpoena. After Gill did not appear, the military judge issues a “warrant of attachment” and the next day, Gill alleges that approximately 15 Deputy Marshals in riot gear and 5 uniformed police officers stormed his house with weapons drawn, handcuffed Gill, searched his person, shackled his waist and ankles, and searched his home. Gill was then transported to the United States District Courthouse in Boston where he was detained in a holding cell before being flown to Alexandria, Virginia, where he was placed in a detention center over night with little food or water. He was taken to testify the next morning, forced to testify without speaking to a lawyer, and then flown back to Boston. Gill alleges he never saw the warrant for his arrest.
Gill filed suit under the Federal Torts Claims Act in 2018, claiming the ordeal was unlawful and caused him extreme emotional trauma, economic hardship, and reputational damage.
Validity of the Subpoena and the Warrant of Attachment
Gill concedes that Rule 703(e) of the Rules of Military Commissions permit the use of a warrant of attachment by a military commission to compel testimony of a civilian witness, but contests that this rule lacks the requisite support of a congressional statute.
The Court found that pursuant to 10 U.S.C. § 949j(a)(2) military commissions may use similar processes as federal court with criminal jurisdiction to compel witnesses to appear and testify before them. Gill contends the October subpoena is invalid because it is not “similar to that which courts of the United States having criminal jurisdiction may lawfully issue”. The Court disagreed and found that the processes need not be identical and despite the fact that the October subpoena was missing an official seal and the signature of a court clerk, it contained other marks of authenticity that made it sufficiently similar to those authorized by Fed. R. Crim. P. 17. Therefore, Gill was required to comply with it.
Gill further contends that his confinement violated the Non-Detention Act, which states that “[n]o citizen shall be imprisoned or otherwise detained by the United States” unless otherwise authorized by an act of Congress. The Court determined that “the military commission was entitled to enforce the subpoena to compel Gill’s testimony using the same procedures as those afforded to federal court having criminal jurisdiction.” The Court found that the commission did have the authority to hold Gill in civil contempt and coerce him to testify for failing to comply with the subpoena. However, the Court further concluded that in exercising this authority, the military judge “depriv[ed] Gill of adequate notice and an opportunity to proffer ‘just cause’ for his failure to appear and testify.” The commission ignored Gill’s application for relief to quash the subpoena and two days later, he was arrested and detained without a hearing. The Court noted that the military judge additionally refused to provide Gill with an opportunity to present his defense once he arrived at the Mark Center. Accordingly, the Court found the civil contempt order and associated warrant of attachment to be plausibly invalid.
Federal Torts Claims Act
1. Trespass The Court found that Gill’s claim for trespass is not barred by the intentional tort exception, nor the discretionary function exception. The Court noted that when a warrant authorizing entry is deemed invalid, such unlawful entry is then tortious. Since this Court found that Gill plausibly states that the warrant was invalid, Gill properly stated a claim for trespass. Further, the Court determined that “even if the warrant of attachment was validly issues, the amended complaint states a claim for trespass to the extent it challenges the decision of the Deputy Marshals to search Gill’s residence incident to his arrest” as the warrant did not authorize the search. The Court concluded that “such an unreasonable search” violated the Fourth Amendment and is therefore is unprotected by the discretionary function exception of the FTCA and plausibly constitutes a trespass.
2. False Arrest and False Imprisonment An arrest is “unlawful” only if the arresting officer lacked probable cause, and a facially valid warrant generally provides officers with probable cause to arrest. As there are no allegations in plaintiff’s amended complaint indicating the officers knew the warrant of attachment to been invalid, the Court concluded that the Deputy Marshals plausibly had probable cause to arrest and detain Gill. The Court therefore found that Gill failed to state a claim for false arrest and false imprisonment and dismissed those counts.
3. Abuse of Process The Court found that it lacks jurisdiction to address the actions of the military judge and prosecutors based on sovereign immunity. With respect to the actions of the law enforcement officers, the Court concluded there are no factual allegations the officers used any process or had any ulterior or illegitimate purpose. The Court accordingly dismissed the count for lack of subject matter jurisdiction and failure to state a claim.
4. Intentional Infliction of Emotional Distress Lastly, the Court found that the “amended complaint permits the reasonable inference that the arrest described therein and the events which took place thereafter involved extreme and outrageous conduct” and therefore, states a claim for intentional infliction of emotional distress. The Court concluded that the alleged conduct plausibly violated the Fourth Amendment as constituting excessive force, and therefore, is unprotected by the discretionary function exception to the FTCA. The Court highlighted the allegation that approximately 15 Marshals arrived in full riot gear with assault rifles and hand-guns draw and pointed at Gill, as well as the allegation that Gill was shackled, handcuffed and detained overnight with little food or water.
Accordingly, the Court denied the government’s motion to dismiss and will allow those counts which were not dismissed to move forward on the merits.
-Current Term Opinions
Joint R. App. Pro.
Global MJ Reform
LOC Mil. Law