The Tenacious Power of Constitutional Torts

A few weeks ago, I had the pleasure of giving the Paul M. Van Arsdell Jr. Memorial Lecture at the University of Illinois College of Law. The lecture is intended to "promote thoughtful discussion on litigation and dispute resolution systems and the highest ethical ideals of the legal profession."

I decided to use the opportunity to articulate what suing the government can accomplish, both because I've recently written a book dedicated to explaining just how difficult it is to bring such suits (which might leave readers with the false impression that attempting to do so is a fool's errand), and also because suing the government seems such a critical necessity in this moment, even as it is no silver bullet to cure what ails our democracy.

If you're interested in learning more, the talk is here, the draft paper is here, and a shorter version of the paper, written for the State Court Report, is here.

💫 Good qualified immunity decision alert 💫

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.

New Mexico Law Review Symposium examining the New Mexico Civil Rights Act, which effectively ends qualified immunity for the state

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: https://digitalrepository.unm.edu/nmlr/ and my keynote is here: https://digitalrepository.unm.edu/nmlr/vol54/iss2/3/

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: https://nmlr.unm.edu/special-content/index.html.