🧵 @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/

#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/ 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/

🧵 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/

🚨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/

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… 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/

🧵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/

https://twitter.com/pjaicomo/status/1439218647067734018?s=20&t=nWDwtwBGUd4lNjqfO177xw

🧵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… 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/

🧵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

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.)

🧵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/