Patrick Jaicomo Profile picture
Mar 17, 2023 • 16 tweets • 12 min read • Read on X
#SCOTUSđź§µIn 2014, police task force members misidentified James King as a criminal and brutally beat him. The officers never identified themselves, so bystanders believed they were witnessing a murder and called 911. Today, @IJ filed cert (for the 2nd time). #AppellateTwitter 1/ ImageImage
Litigation for the past 9 years(!) has been a case study in immunity doctrines, and has already been to the U.S. Supreme Court in Brownback v. King. I'll walk through that, but lets start with James telling his story: 2/

To begin, Mich. prosecutors charged *James* with multiple felonies. So at 21 he had to stand trial and face decades in prison. If the gov't can get a plea or conviction, most constitutional claims against police die. Thankfully, a jury acquitted James (and he refused to plea). 3/ Image
Illustrating the cozy relationship between police and prosecutors, the prosecutor who tried James to prevent him from being able to sue the police was, himself, later saved by police, who covered up the prosecutor's DUI. Or tried to . . . 4/

fox17online.com/2017/09/13/cit…
Anyhow, James sued the task force officers who beat him for violating his #FourthAmendment rights, and he sued the federal gov't under the Federal Tort Claims Act (FTCA) for MI torts the officers committed (e.g., battery).

Congress & SCOTUS have made clear you can do BOTH. 5/ ImageImage
The Dep't of Justice defended the officers, moving to dismiss King's case based on - you guessed it - #QualifiedImmunity.

And the district court eagerly granted QI across the board: federal QI for the constitutional claims and Michigan QI for the torts. 6/ ImageImage
King appealed to the 6th Cir., which reversed. The opinion roundly rebuffed the officer's claims for #QualifiedImmunity, explaining that they violated James's clearly established #FourthAmendment rights at every stage of the interaction. 7/

opn.ca6.uscourts.gov/opinions.pdf/1… ImageImageImageImage
On appeal King narrowed focus to his constitutional claims b/c the district court's grant of Mich. #QualifiedImmunity for the torts created a messy issue over which the circuits were split (see below). The gov't seized on this and argued for another immunity under the FTCA. 8/ Image
Under this tort immunity, if a victim of federal abuse cannot sue the federal gov't for a state tort—like assault or battery, etc.—he cannot hold the gov't employee liable for a constitutional violation either. Here's how the 7th Cir. said the "Kafkesque" process should work: 9/ Image
Tort immunity makes no sense for a bunch of reasons, not the least of which that torts and constitutional claims have different elements and purposes. Also because it has no basis in the FTCA, which does not preclude "claims" in the same lawsuit. So, the 6th Cir. rejected it. 10/ ImageImage
Then, the Solicitor General of the U.S. filed cert, asking #SCOTUS to recognize tort immunity. The Court heard the case, Brownback v. King, but declined to recognize the immunity. Instead, it held that the 6th Cir. was wrong for a different reason. 11/
supremecourt.gov/opinions/20pdf… Image
#SCOTUS remanded the case to the 6th Cir. to address King's alternative argument against tort immunity - that it made no sense in light of the FTCA's language and the fact that the judgment bar incorporates res judicata, which NEVER applies to claims in the same lawsuit. 12/ Image
On remand, the 6th Cir. ignored the Court's identification of the issue and, in a 2-1 decision, granted tort immunity based on its own outdated caselaw. 13/

opn.ca6.uscourts.gov/opinions.pdf/2… ImageImageImage
Judge Clay "strongly dissented." He explained that the 6th Cir. had ignored what SCOTUS told it to do AND that the result is a grave injustice. (He's obviously right.) 14/ ImageImageImage
So @IJ is asking #SCOTUS to hear James's case again and reject this tort immunity. It's existence has been the subject of a circuit split since 1992, and the lower courts have consistently ignored the Supreme Court's statements that the judgment bar works like res judicata. 15/ ImageImage
This is an important #CivilRights issue. Tort immunity is now in the pile of tools the gov't has to avoid the Constitution. And ironically, the FTCA was supposed to CREATE a remedy for gov't abuse, but this interpretation means it destroys one. /end ij.org/case/brownback…

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More from @pjaicomo

May 16
The Supreme Court has issued its long-awaited ruling in the Alien Enemies Act case, AARP v. Trump.

The Court rules 7-2 that AEA detainees need more notice than was given. So they cannot presently be deported.

Kavanaugh concurs.

Alito and Thomas dissent (as before).

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After noting the gamesmanship, SCOTUS explains that the 5th Cir. erred in finding no jurisdiction. There is jurisdiction for emergency appeals when the practical effect of the lower courts is the same as refusing an injunction.

Also, the gov't's notice was insufficient.

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Because the gov't took such drastic action so quickly, 24 hour notice is nought enough to satisfy DUE PROCESS, which JJG v. Trump already held is required.

But how much notice is required can be addressed on remand, while an injunction stays in place.

Now, Alito's dissent.

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Read 15 tweets
May 7
đź§µNearly THREE YEARS after @IJ argued the ankle-monitor case Meade v. ETOH, the 5th Cir. issued an unpublished opinion holding that a judge's private, monetary relationship with a private ankle-monitoring company does not "create an unconstitutional risk of judicial bias."

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New Orleans judge Paul Bonin ordered defendant's to use a specific ankle-monitoring company: ETOH.

ETOH would send the judge the outstanding bills for the $300 "service."

If defendants didn't pay, the judge would threaten to jail them or refuse to release them from monitoring.

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But the judge never disclosed ETOH was run by his former law partner, who (along with the other owner of ETOH) repeatedly made monetary contributions to the judge.

The 5th Cir. held that this wasn't enough to violate due process.

The court gives 3 reasons.

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Read 8 tweets
Apr 26
🧵The gov’t is lying to avoid due process.

4/7: In JJG v. Trump, SCOTUS held that the D.C. District Court lacked habeas jurisdiction.

Still, SCOTUS held that Alien Enemy detainees are entitled to notice “in such a manner as will allow them to actually seek habeas relief.”

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4/14: AG Bondi promulgated a memo to all federal police.

Directly contradicting SCOTUS, Bondi ordered police to falsely tell all AEA detainees they are “not entitled to a hearing, appeal, or judicial review of the apprehension and removal warrant.”

This memo stayed secret.

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4/23: The gov’t opposed a TRO in another AEA case, JAV v. Trump.

There it said the gov’t “developed procedures for aliens” subject to the AEA per SCOTUS in JJG.

It cited a SEALED decl., claiming each detainee is served an English form that’s read and explained in Spanish.

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Read 6 tweets
Apr 7
The Supreme Court just struck down Boasberg’s TRO in Trump v. JJG - the Alien Enemies Act, case.

The decision is disappointing in its application to people the gov’t already renditioned without due process (and seems to encourages the gov’t to evade judicial review), but… 1/Image
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SCOTUS confirms, contrary to what demagogues like @StephenM and @mrddmia have been screaming, that illegal aliens get due process and that the Alien Enemies Act requires notice and an opportunity to be heard *before* removal. This means habeas in the district of confinement. 2/ Image
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@StephenM @mrddmia JJG also confirms that the gov’t violated the constitutional rights of every person on the planes to CECOT, but they’re effectively outlaws because of prospective application.

Kavanaugh concurs to say, in large part b/c of War on Terror excesses, the decision isn’t novel. 3/ Image
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Read 10 tweets
Feb 16
Now that I’ve sat with it, I have a broader critique of @ilan_wurman and @RandyEBarnett’s anti-birthright-citizenship theory.

If the citizenship clause is really about allegiance, it seems incredible that the 14th Amendment’s drafters wouldn’t have spelled that out.

Why? 1/3 Image
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Because the 14th Amendment was, of course, passed as a result of the Civil War.

If citizenship turned on allegiance, that would have opened a Pandora’s box of questions pertaining to the citizenship status of, at least, confederate leaders, and, at most, all southerners. 2/3 Image
If the issue is allegiance, the child of Honduran immigrant who permanently (albeit illegally) moved to the U.S. for a better life surely has more allegiance to U.S. law than Winnie Davis, who was born while her dad was the president of the CSA and waging war against the U.S. 3/3 Image
Read 6 tweets
Jan 18
🧵As we await decisions on the #SCOTUS relists of @IJ’s #WrongHouseRaid cert. petitions, I want to highlight how these cases expose a judicial hypocrisy.

Factually, they’re similar.

SWAT teams raided the wrong house without checking the address.

Legally, they’re distinct. 1/8 Image
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Despite the cases involving different statutes (1983 v FTCA), immunities (qualified v sovereign), types of cops (city PD v FBI), circuits (5th v 11th), the outcomes were identical.

Even though SWAT raided the wrong addresses, innocent families were left to bear the costs. 2/8 Image
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So here’s the judicial hypocrisy.

In 2022’s Egbert v. Boule, SCOTUS eviscerated Bivens’ cause of action for constitutional claims against federal officials.

Its justification was separation of powers:

Providing a damages action is the role of Congress, not the judiciary. 3/8 Image
Read 8 tweets

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