Opening Arguments

Part 1 of 2.
OA 1229 - What happens when a government worker does you wrong? How is it different to prosecute and sue them? When does qualified immunity come in to play?
We discuss the steps involved in prosecuting and suing someone for a simple battery, and how that differs for a regular person versus a state actor. We cover how and when defenses can be raised, federal and state sovereign immunity, suing in official versus personal capacity, the difference between absolute and qualified immunities, and the ways this will apply differently to criminal prosecution versus civil litigation.
Siegell v Herricks Union Free School District, 7 AD3d 607 [2d Dept 2004] (Elements of civil battery in NY)

N.Y. Penal Law § 120 (NY criminal “battery”)

Fla. Stat. § 776.032 (Florida self-defense as an affirmative defense and immunity)

Ohio Rev. Code § 2901.05 (Ohio self-defense as a standard defense)

N.Y. Penal Law § 35 (NY justification defenses)

Roger Fairfax, The Grand Jury’s Role in the Prosecution of Unjustified Police Killings - Challenges and Solutions, 52 Harvard Civil Rights-Civil Liberties Law Review 397 (2017).

Michael Gentithes, Harvesting the Grand Jury’s “Lay Expertise” in Officer-Involved Shootings, U. Ill. L. Rev. 989 (2025).

In re Neagle, 135 U.S. 1 (1890)

Gregory C. Sisk, A Primer on the Doctrine of Federal Sovereign Immunity, 439 Okla. L. Rev. 58 (2005).

28 U.S.C. § 2680(h)

Miles McCann, State Sovereign Immunity, National Association of Attorneys General (Nov. 11, 2017)

State Sovereign Immunity - Generally, Interstate Commission for Juveniles, https://www.juvenilecompact.org/bench-book/chapter-6-1

Ex Parte Young, 209 U.S. 123 (1908)

Scheuer v. Rhodes, 416 U.S. 232 (1974)

Moor v. County of Alameda, 411 U.S. 693 (1973)

O’Shea v Littleton, 414 U.S. 488 (1974)

Judicial Immunity at the (Second) Founding: A New Perspective on § 1983, 136 Harvard L. Rev. 1456 (2023).

Check out the OA Linktree for all the places to go and things to do!
To support the show (and lose the ads!), please pledge at patreon.com/law!

OA1228 - On this week's Rapid Response Friday: we take on all of your legal questions about this whole Greenland thing--including how a 1916 diplomatic treaty with Denmark also enabled some of Jeffrey Epstein’s worst crimes. Also discussed: what it took to finally force Lindsay Halligan to stop telling everyone that she was the U.S. Attorney for the Eastern District of Virginia, and how a Minnesota judge designed her unique order to protect Minneapolis protesters and observers from ICE’s lawless violence. Finally, in today’s footnote: is it enough that McDonald’s can promise that their most elusive sandwich is “100% pork”? We dig into a recent lawsuit over the McRib to see if there is any meat on the bone.
The US-Denmark Defense of Greenland Agreement (1951)

“How Congress Can Preserve NATO and Greenland: Using 22 USC 1928f to Protect the Peace,” Alberto J. Mora,  Just Security (1/16/2026)

Judge Novak’s order officially striking Lindsay Halligan’s appearance from the record and requiring that she stop “masquerading” as the U.S. Attorney for the Eastern District of Virginia (1/20/2026)

Tincher v. Noem docket

Judge Menendez’s preliminary injunction in Tincher v. Noem (1/16/2026)

Complaint in Lynch et al v. McDonald’s, Eastern District of Illinois (12/25/2025)

Check out the OA Linktree for all the places to go and things to do!

E20 - Detention Watch Network executive director Silky Shah has been organizing against ICE on the ground to fight throughout the agency’s entire 23-year existence. We are excited to welcome her and her unique perspective to Opening Arguments to discuss both the urgency and the hope of our current moment, the challenges faced by organizers and advocates, what lawyers can (and can’t) do in the face of a lawless system, and imagining life after ICE.
You can also watch this episode on YouTube!
Unbuild Walls: Why Immigrant Justice Needs Abolition, Silky Shah (2024) 

“Congress Has Made ICE the Largest Law Enforcement Agency In The Country,” Silky Shah, Truthout (1/20/2025)

Detention Watch Network website

Donate directly to support Detention Watch Network

Check out the OA Linktree for all the places to go and things to do!

OA1227 - Come play the worst ever round of the Connections game and figure out what on earth Tuskegee Alabama, the CDC, Southern Denmark University, and the West African country of Guinea-Bissau all have in common, as RFK Jr. continues his campaign of “just asking questions” that we already have the answer to.
Black men untreated in Tuskegee syphilis study. Heller, J. (July 25, 1972; republished May 10, 2017). Associated Press.

The untreated syphilis study at Tuskegee timeline. Centers for Disease Control. (September 4, 2024).

45 CFR 46 Protection of Human Subjects. (Department of Health and Human Services regulations to implement the National Research Act and create Institutional Review Board policies).

Hepatitis B. World Health Organization (July 23, 2025).

Should the U.S. model its vaccine policy on Denmark’s? Experts say we’re nothing alike. Godoy, M. (December 26, 2025). NPR.

RFK Jr. overhauls childhood vaccine schedule to resemble Denmark’s in unprecedented move. Lovelace Jr., B., Edwards, E., Fattah, M., & Bendix, A. (January 5, 2026). NBC News.

What is actually the emerging evidence about non-specific vaccine effects in randomized trials from the Bandim Health Project? Støvring, H., Ekstrøm, C.T., Schneider, J.W., & Strøm, C. (2025). Vaccine, 68, 1-4.

Notice of award of a single source unsolicited grant to fund University of Southern Denmark (SDU). Department of Health and Human Services. (December 15, 2025).

U.S. plan for $1.6m hepatitis B vaccine study in Africa called ‘highly unethical’. Schreiber, M. & Lay, K. (December 19, 2025). The Guardian.

CDC awards $1.6 million for hepatitis B vaccine study by controversial Danish researchers. Szabo, L. (December 18, 2025). Center for Infectious Disease Research and Policy.

CDC funds controversial hepatitis B vaccine trial in African newborns. Offord, C. (December 18, 2025). Science Insider.

Research ethics and compliance support. Southern Denmark University.

Further reading:
Qiao, H. (2018). A brief introduction to institutional review boards in the United States. Pediatric Investigation, 2, 46-51.

U.S. Department of Health and Human Services. International compilation of human research standards. https://www.hhs.gov/ohrp/international/compilation-human-research-standards/index.html

University of North Carolina. Nuremberg Code. https://research.unc.edu/human-research-ethics/resources/ccm3_019064/

Torrance, R.J., Mormina, M., Sayeed, S., Kessel, A., Yoon, C.H., & Cislaghi, B. (2024). Is the U.N. receiving ethical approval for its research with human participants? Journal of Medical Ethics, 51, 1-4.

Barchi, F. & Little, M.T. (2016). National ethics guidance in Sub-Saharan Africa on the collection and use of human biological specimens: A systematic review. BMC Medical Ethics, 17, 1-25.

Salhia, B. & Olaiya, V. (2020). Historical perspectives on ethical and regulatory aspects of human participants research: Implications for oncology clinical trials in Africa. JCO Global Oncology, 6, 959-965.

Check out the OA Linktree for all the places to go and things to do!

OA1226 - We begin with a review of the unprecedented lawsuit that Minnesota has filed against ICE with the extreme leftist radical demand that they obey the law and U.S. Constitution. How much power do states have to limit federal operations, and what are the chances a court order might put some guardrails on the largest enforcement operation in ICE history? We then consider the legal and political merits of articles of impeachment filed against Secretary of Defense Pete Hegseth, Secretary of Health and Human Services Robert F. Kennedy, Jr., and Secretary of Homeland Security Kristi Noem. Finally: we honor the passing of civil rights hero Claudette Colvin, whose bravery as a 15-year-old on a Montgomery, Alabama bus nine months before Rosa Parks refused to give up her seat put the final nail into the “separate but equal” justification for racial segregation established by the Supreme Court in Plessy v. Ferguson.
State of Minnesota v. Noem, complaint filed 1/12/2026

“House Resolution 935: Impeaching Pete Hegseth, Secretary of Defense for the United States for high crimes and misdemeanors,” Rep. Shri Thaneder (12/9/2025)

“House Resolution 944: Impeaching Robert F. Kennedy Jr., Secretary of Health and Human Services  for high crimes and misdemeanors,” Rep. Haley Stevens (12/10/2025)

“House Resolution ___: Impeaching Kristi Lynn Arnold Noem, Secretary of Homeland Security, for high crimes and misdemeanors,” Rep. Robin Kelly (1/13/2026)

“Firm Tied to Kristin Noem Secretly Got Money from $220 Million DHS Ad Contracts,” ProPublica (11/14/2025)

“Impeachment: The Constitution’s Fiduciary Meaning of ‘High Crimes and Misdemeanors,’” Robert G. Natelson, The Federalist Society (6/19/2018)

“Claudette Colvin, who refused to move seats on a bus at start of civil rights movement, dies” (NPR, 1/13/2026) 

Browder v. Gayle, 142 F.Supp. 707 (1956)(aff’d per curiam by U.S. Supreme Court 12/20/1956)

Check out the OA Linktree for all the places to go and things to do!