Oral Arguments: Please Pardon the Pun

WarningThe following blog addresses a sexual issue and may be offensive to some readers.

Often, common sense has nothing to do with upholding the law.

Imagine that an inmate in a federal prison was forced to give a correctional officer (CO) oral sex.  The inmate sues the government, asking the courts to side with him because the federal facility failed to protect him from the sexual assault by the CO.  The federal prison, however, claims that it has immunity because the CO did not commit an assault “while carrying out a search, seizing evidence, or making an arrest,” the criteria for losing immunity.  Since the CO did none of those things, the prison maintains its immunity.

You can stop imagining.  It happened.

According to the complaint, Millbrook was subjected to sexual assault while housed in the Special Management Unit (SMU) at USP-Lewisburg on or about March 5, 2010. On that date, Millbrook 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. . . . According to the defendant, Millbrook was involved in an altercation with his cell mate on the morning of March 4, 2010. As a result, both prisoners were placed in restraints and removed from their cell. They were then transferred to separate holding cells pending injury assessment and photographs. Millbrook claims that he was assaulted the next day by correctional staff. Following an internal investigation, which included a medical assessment, Millbrook’s claim was found to be unsubstantiated.


The United Supreme Court is scheduled to hear oral arguments in Millbrook v. United States (docket 11-10362) sometime in the near future.

The lawsuit was filed under the Federal Tort Claims Act, which allows the government to be sued under certain circumstances, often when an employee of the federal government commits an illegal act while on the time clock.  “The Third Circuit Court ruled against Millbrook, concluding that the Lewisburg guards’ immunity to an assault remained intact because they were not engaging in one of those law enforcement activities at the time they allegedly forced him to perform oral sex.”

In an unusual move, the Solicitor General, Donald B. Verrilli, Jr., told the Supreme Court that he was not going to argue the case for the federal government because he believes the Third Circuit got it wrong.  The federal government will write a brief asking the Big Court to overturn the Third Circuit’s decision.

A neutral lawyer will be appointed, or chosen, to carry out the argument holding up the Third Circuit’s decision.  Just when you want to believe that government doesn’t do anything right, along comes a decent decision like Verrilli’s.

Now, will the Big Court uphold the law as written, like the Third Circuit did?  Or, will it find flaws, decency and inspiration that the Solicitor General should write in his amicus brief?


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One Response to Oral Arguments: Please Pardon the Pun

  1. IRV HOFFBAUER says:


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