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In Calonge v. City of San Jose, the 9th Circuit ruled it's clearly established that when a man's walking down the street with a gun in his waistband, posing no threat, police can't shout conflicting commands and then shoot.

Beyond the holding itself, the 9th Cir. makes a couple important analytical moves to get to its decision. First, it explains that the plaintiff doesn't have to cite the cases that clearly establish the law in her brief - if the cases exist, the law is clearly established.

Next, the 9th Cir. finds that the plaintiff's facts show a constitutional violation, relying on 9th cir precedent, and then make clear that that precedent is enough to clearly establish the law.

Third. The 9th Circuit makes clear, in rejecting defendant's argument, that the key question is whether the law is clearly established VIEWING THE FACTS IN THE LIGHT MOST FAVORABLE TO THE PLAINTIFF. That's the standard, but courts all too often seem to forget it.

Thank you, Ninth Circuit, for a sensible application of a nonsensical doctrine.

Anyone interested in qualified immunity must pay close attention to New Mexico, which passed an act effectively ending qualified immunity in 2021. New Mexico Law Review held a terrific symposium about the statute, and the symposium issue (with my keynote) is out now. The entire symposium issue is at: and my keynote is here:

In addition to the articles, the symposium was terrific - a panel of legislators & commissioners spoke about getting the bill passed & another panel was lawyers who litigate these novel claims. Those thinking about enacting similar statutes must watch:

I am over the moon that my book, Shielded: How the Police Became Untouchable, has won the American Bar Association's Silver Gavel award.

The award is meant to recognize works “exemplary in fostering the American public’s understanding of law and the legal system,” and that is just what I aimed to do with Shielded - explain the many legal & bureaucratic barriers that make it so difficult for people wronged by police to get justice in the courts.

I describe these barriers and their impact through the stories of people whose lives were upended by police misconduct and then upended again by the courts. Learn about them on my website here, or in interviews I did on Fresh Air and Strict Scrutiny - or, heck, just get the book at

The other amazing finalists for this award illuminate the criminal legal system, the Supreme Court’s shadow docket, campaign $, free speech, FDR’s Supreme Court, and the Espionage Act - you should read them all too. I am honored to be in their company. And thanks to the ABA for this award! 

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