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Patrick Jaicomo Profile picture
@pjaicomo
Mar 24, 2023 • 12 tweets • 11 min read • Read on X
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🧵 @IJ's been fighting hard against #FirstAmendment retaliation - litigating a dozen cases in the past few years. But people don't realize that #SCOTUS has all but killed retaliatory *arrest* claims. It's wild. Let me tell you about it (and our case👇). 1/
ij.org/case/castle-hi…
While #SCOTUS is very protective of prior restraint on @USConst_Amend_I and kinda protective of non-arrest retaliation (but see #QualifiedImmunity), it's openly hostile to retaliatory arrest claims. See Nieves v. Bartlett. 2/ ImageImageImage
Worse still, the reason #SCOTUS immunizes police from retaliatory arrest claims? Pure *policy* (AKA judicial activism). You can't enforce the #FirstAmendment because police have a tough job. Seriously. Justice Gorsuch points this out in his concurrence in Nieves. 3/ ImageImage
Pause on the citation to Harlow, which gave us #QualifiedImmunity. The Court is *double counting* policy concerns. Police work is so tough that we need to only review actions through objective reasonableness, so police get QI *&* you can't sue for retaliatory arrest! Except: 4/ ImageImage
Call me old fashioned, but of all the things the gov't might do to stop me from speaking, throwing me in a cage and putting me on trial is at the top of the list. Yet, #SCOTUS says your 1A rights are weakest there. 5/
So when @IJ sued a mayor, police chief, and lawyer for conspiring to have our 72yo client Sylvia arrested and jailed on trumped up charges because she was trying to remove a city manager in Castle Hills, TX, the 5th Cir. threw out our case. Why? 6/
ca5.uscourts.gov/opinions/pub/2… ImageImage
Sylvia can't satisfy the so-called jaywalking exception because, even though she showed that no one had *ever* been charged under similar circumstance (by reference to hundreds of warrants), that wasn't enough. The 5th Cir. created a circuit split to reach that conclusion: 7/ ImageImage
But who came to Sylvia's defense? Conservative Judge Oldham, who explained in dissent that the majority's interpretation makes no sense. How can you prove there are other jaywalkers who *aren't* charged? It's impossible. 8/ ImageImage
Morever, Oldham explained, the history of the #FirstAmendment should mean that Sylvia's political speech is sacrosanct. And that should never be ignored (or thwarted by #QualifiedImmunity). 9/ ImageImageImage
.@IJ argues the general rule from Nieves shouldn't even apply outside of split-second decision making. And Judge Oldham agrees. (Really, it shouldn't apply at all - as Justice Sotomayor explained in dissent in Nieves.) 10/ ImageImage
And Judge Ho, another conservative 5th Cir. judge, also came to @IJ's aid, dissenting from the court's denial of our petition for rehearing. 11/

ca5.uscourts.gov/opinions/pub/2… ImageImage
So, with a #CircuitSplit, dissents from 2 well-known conservative judges, and the Constitution on our side, @IJ will ask #SCOTUS to revisit this issue in Gonzalez v. Trevino. As Judge Ho explained, policy-based doctrines have swallowed the #FirstAmendment in many instances. /end ImageImage

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More from @pjaicomo

Patrick Jaicomo Profile picture
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
Image
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
Patrick Jaicomo Profile picture
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
Image
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
Image
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
Patrick Jaicomo Profile picture
Mar 17, 2023
#SCOTUS🧵In 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
Read 16 tweets
Patrick Jaicomo Profile picture
Feb 15, 2023
🧵 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/
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/
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/
Read 14 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

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