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Feb 14 • 3 tweets • 4 min read
1/3 My @IJ colleague @benjaminafield and I discuss the frightening trend of cops arresting people for making jokes on social media. As we explain in @dcexaminer, they get away with it because courts have displaced @USConst_Amend_I with #QualifiedImmunity.
washingtonexaminer.com/restoring-amer…
2/3 @IJ is litigating 2 different cases where this happened. The 1st, Novak v. Parma, is pending before #SCOTUS. There, police arrested Anthony after he parodied them on Facebook. This Friday (2/17), the Supreme Court will decide whether to hear the case.
ij.org/case/novak-v-p…
3/3 @IJ is also litigating Bailey v. Iles, where cops raided and arrested Waylon Bailey for making a Zombie joke (with the hashtag #WeNeedYouBradPitt). That one's in the 5th Cir. If you care about the #FirstAmendment, we need to #EndQualifiedImmunity.
ij.org/case/bailey-v-…

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More from @pjaicomo

Patrick Jaicomo Profile picture
Feb 15
🧵 QUALIFIED IMMUNITY ALERT

In Taylor v. LeBlanc, the 5th Cir. holds it’s clearly established that prisons cannot hold people beyond their release date (more than 2 years in this case).

But the 5th Cir. creates a NEW ELEMENT of #QualifiedImmunity to let the jailer off. Wow. 1/ ImageImage
Normally, there are 2 questions for #QualifiedImmunity:

(1) Is there a constitutional violation? (2) Is it “clearly established”?

The clearly-established test does all the mischief because it requires an earlier decision on similar facts (e.g., pepper spray vs. taser). 2/ ImageImage
Though it’s premises are wrong (if not absurd), SCOTUS created the clearly-established test to determine whether an official’s acts were “objectively reasonable.” I.e., if there’s a similar case holding that an act is unconstitutional, it’s objectively unreasonable to do it. 3/ ImageImage
Read 9 tweets
Patrick Jaicomo Profile picture
Oct 3, 2022
🚨Excited to share that @TheOnion has filed the best amicus brief I've ever read in favor of @IJ's cert petition in Novak v. Parma. Novak challenges the 6th Cir's use of #QualifiedImmunity to deny #FreeSpeech protections to a parodist. 1/ @SCOTUSblog
supremecourt.gov/search.aspx?fi…
This is the Onion's first amicus brief, and it does a perfect job of showing and telling why parody (like the Facebook posts Anthony Novak published lampooning his local police) is a core #FirstAmendment tool. Anthony was arrested for it. Now the Onion stands with him: 2/
Much more (less funny) information on @IJ and Anthony's case here: 3/
Read 8 tweets
Patrick Jaicomo Profile picture
Jul 29, 2022
In #QualifiedImmunity news, a 2-1 5th Cir. granted QI to a group of Castle Hills, TX officials who conspired to throw @IJ client and then-72yo Sylvia Gonzalez in jail for exercising her #FirstAmendment rights to speech and petition. #AppellateTwitter
🧵 1/
ca5.uscourts.gov/opinions/pub/2… Image
More specifically, the court held that because there was probable cause for a made-up misdemeanor charge, it did not matter that the mayor, police chief, and others conspired to have Syliva jailed for speaking out. (The decision represents a narrow interpretation of Nieves.) 2/ Image
Although @IJ and Sylvia proved that, over a decade no one in Bexar Cnty. TX has EVER been charged under the statute used to charge Sylvia for similar conduct, the only sufficient evidence is proving a negative; find people who jaywalked and DIDN'T get a ticket. (Impossible.) 3/ Image
Read 12 tweets
Patrick Jaicomo Profile picture
Jun 10, 2022
🧵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/

ij.org/case/federal-p…
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/ Image
Read 12 tweets
Patrick Jaicomo Profile picture
Jun 8, 2022
🧵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/

supremecourt.gov/opinions/21pdf… Image
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/ Image
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/ Image
Read 12 tweets
Patrick Jaicomo Profile picture
May 4, 2022
🧵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.

1/4
ca5.uscourts.gov/opinions/pub/2…
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
Read 7 tweets

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