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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
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.”

1/Image
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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.

2/ Image
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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.

3/ Image
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Read 6 tweets
Patrick Jaicomo Profile picture
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
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
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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
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
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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
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

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