Opening Arguments

OA1231 -
The DHS funding battle is important, but really can't accomplish what you might hope it can. When it comes to the Fed, ALL OF A SUDDEN the court cares about the real world effects of their decisions. And a figure skating related footnote!

Part 2 of 2.
OA 1230 - Seeing all the obstacles to holding government officials accountable, Congress created Section 1983, allowing citizens to sue for money damages for violations of their civil rights. We cover how that works, the one weird trick it uses to get around state sovereign immunity, and how that accidentally created the infamous qualified immunity doctrine that has made police seemingly unaccountable. We also discuss proposed reforms that might fix issues of qualified and sovereign immunity.
42 U.S.C § 1983

Pierson v Ray, 386 U.S. 547 (1967)

Graham v Conner, 490 U.S. 386 (1989)

Pearson v Callahan, 555 U.S. 223 (2009)

Kisela v Hughes, 584 U.S. 100 (2018)

Barnes v Felix, 605 U.S. 73 (2025)

Barnes v Felix, 138 Harvard L. Rev. 291 (2025).

Julia Yoo, The Problem with Policing in the United States, ADVOCATE (Feb. 2021).

David J. Ignall, Making Sense of Qualified Immunity: Summary Judgment and Issues for the Trier of Fact, 30 Cal. W. L. Rev. 201 (1994). (NOTE: Good review for basics, but note the date!)

Bivens v. Six Unknown-Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971)

Egbert v Boule, 596 U.S. 482 (2022)

S. 122 Qualified Immunity Act of 2025 119th Cong. (2025)

S. 3186 Constitutional Accountability Act 119th Congr. (2025)

H.R. 6091 Bivens Act of 2025 119th Congr. (2025)

H.R. 4944 Ending Qualified Immunity for ICE Agents Act 119th Congr. (2025)

Qualified Immunity Abolition Act of 2026 (no bill number assigned yet)
Gelinas, S. (2026, January 18). Markey, Pressley renew push to end qualified immunity after ICE shooting death. Athol Daily News.


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

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!