🧵More on Egbert v. Boule, #FederalImmunity, #PoliceAccountability: @IJ has 2 petitions pending on a similar issue involving *domestic* federal policing: Mohamud v. Weyker & Byrd v. Lamb. SCOTUS has been holding those cases *since Jan.* pending Egbert. 1/
We expect the Court will soon issue orders in Mohamud and Byrd (perhaps Monday), and what it does with them will be telling about what - if anything - is left of Bivens. If you want a little more on our cases, I have talked about them here: 2/
Big picture, Egbert is the latest in the Court's death-by-1000-cuts approach to klling Bivens (w/o having to confront stare decisis or public outrage). What Egbert holds is that federal police *involved in immigration related functions* (about half) now have #FederalImmunity. 3/
But the major distinction between Egbert and @IJ's cases is that Egbert involved immigration related policing and our cases involve *domestic* policing. See, e.g., Egbert's QPs (note #3 was NOT granted, so theoretically, the Court was adamantly not overruling Bivens). 4/
Indeed, at oral argument in Egbert, the SG used this as a major point of leverage for how the CPB could win in Egbert w/o SCOTUS overturning Bivens. We explained this in detail in @IJ's supplemental briefs in Mohamud and Byrd: 5/ supremecourt.gov/DocketPDF/21/2…
So, if SCOTUS GVRs Byrd and Mohamud because they involve domestic federal policing, there might be something left alive in Bivens. But if SCOTUS simply denies, boy, that sure seems like #FederalImmunity is now absolute, Bivens is done, and . . . 6/
Even Marbury v. Madison is called into question. Because that ruling established (1) judicial review, (2) that the constitutional is an enforceable legal document (not a political one), and (3) that every right must have a remedy. #FederalImmunity kills all 3. /7
In response to Egbert, we filed another supplemental brief in Byrd today, arguing that Bivens is not dead (and should not be) but, if it is, the Court should have the courage to say what it's doing (which is a point Gorsuch made in his concurrence): /8
Related: As a matter of basic constitutional design, the courts don't need a permission slip from Congress to enforce the constitution. But even if they did, Congress provided one in the Westfall Act. /9
And even if that's not right, Congress could (and now must) solve the #FederalImmunity problem by adding FOUR DAMN WORDS to Section 1983: /10
I'll be sure to let you know what happens and, as a result, what is left of federal #PoliceAccountability. Stay tuned. 11/
PS @IJ litigates #FederalImmunity, in addition to #QualifiedImmunity and other doctrines that thwart the Constitution, through our Project on Immunity and Accountability. Find out more and support us here:
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🧵In Egbert v. Boule today, #SCOTUS has all but overruled Bivens without actually doing so. In effect, the Court has enshrined #FederalImmunity and rights without remedies. To get there, the Court has, again, changed the shifting rules for Bivens . . . 1/
In denying both 1st and 4th A. claims against a CBP agent who shoved down an innkeeper in his driveway and then retaliated against him for complaining, the Court retcons its Bivens jurisprudence and essentially now announces a rational-basis style test for Bivens.
2/
The Court also says that the relevant inquiry for considering the Bivens context is not the facts of any given case, but some undefined broad category--in this case Border Agents and national security. 3/
🧵Holy smokes! Conservative 5th Cir. Judge Ho, writes dubitante* in Wearry v. Foster to criticize #QualifiedImmunity, #ProsecutorialImmunity, and #Monell. In Wearry, a prosecutor fabricated evidence to put Foster on death row.
Judge Ho illustrates the immunity shell game that frequently kills meritorious civil rights claims. And he rightly explains that #ProsecutorialImmunity has no legitimate basis in American law. 2/4
Ho correctly places the problems of #ProsecutorialImmunity, #QualifiedImmunity, and #Monell at the Supreme Court's feet. Those are judicially created, legally unjustified doctrines. The Courts, not Congress, should therefore be the first place for recourse. 3/4
6th Cir. grants #QualifiedImmunity to police who arrested a man for running a parody Facebook page making fun of them. Court declined to decide whether the #FirstAmendment covered the page (ed. it does), merely concluding it was not "clearly established."opn.ca6.uscourts.gov/opinions.pdf/2…
The Court also ends on a quote from @bariweiss. (See above.)
CODA: In Parma, Ohio, police only clear (meaning arrest someone for) 44% of *violent* crimes. Yet, they used a detective and multiple officers to hunt down and figure out how to arrest someone who hurt their feelings.
🧵Interesting morning. At 10 a.m., #SCOTUS decided Brownback v. King, the @IJ case I argued Nov. 9. The Court gave the gov't a *formal win* by reversing the 6th Cir. on a jurisdictional issue, but a *substantive loss* by declining to end the case. 1/ ij.org/press-release/…
As we argued, the most important issue in this case is whether the FTCA's judgment bar can be applied to different claims brought in the same lawsuit. We say no, the gov't says yes. The Supreme Court held that the Sixth Circuit will have to decide that issue first. 2/
In a powerful concurrence, Justice Sotomayor then highlighted the arguments we made for why--as a matter of centuries of common law and statutory interpretation--a dismissal against one claim cannot preclude another claim in the same lawsuit. 3/