“An official sued under § 1983 is entitled to qualified immunity unless it is shown that: (1) the official violated a statutory or constitutional right, and (2) the right was ‘clearly established' at the time the violation occurred.” Manriquez v. Ensley, 46 F.4th 1124, 1129 (9th Cir. 2022) (quoting Plumhoff v. Rickard, 572 U.S. 765, 778 (2014)).

"Only one tribunal ever adopted a practice of forcing counsel upon an unwilling defendant in a criminal proceeding. The tribunal was the Star Chamber."-U.S. v Faretta , 422 U.S. 806 (1975)

OUTSIDE, IT'S AMERICA

REASONABLE DOUBT

"Silence in the face of evil is itself evil: God will not hold us guiltless.
Not to speak is to speak. Not to act is to act." ― Dietrich Bonhoeffer

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The case: The question of qualified immunity.

The doctrine of "qualified immunity" shields government officials performing discretionary functions from liability for damages "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a 'reasonable' person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

In analyzing whether a government official is "entitled" to qualified immunity, the court looks at two distinct questions. See, e.g., Greene v. Camreta, 588 F.3d 1011, 1021 (9th Cir. 2009) (discussing the "two-step procedure" established in Saucier).

First, the court determines whether the facts alleged, construed in the light most favorable to the injured party, establish the violation of a constitutional right. Saucier, 533 U.S. at 201.

Second, the court decides whether the right is clearly established such that a reasonable government official would have known that "his conduct was unlawful in the situation he confronted." Id. at 202

Qualified immunity confers upon officials
"a right, not merely to avoid 'standing trial,' but also to avoid the burdens of 'such pretrial matters as discovery.'" Behrens v. Pelletier, 516 U.S. 299, 308 (1996) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)).

Moreover, although the first Saucier prong calls for a factual inquiry, Tortu v. Las Vegas Metro. Police Dep't, 556 F.3d 1075, 1085 (9th Cir. 2009), the second prong of the Saucier analysis is "solely a question of law for the judge," id. See also Act Up!/Portland v. Bagley, 988 F.2d 868, 873 (9th Cir. 1993) ("The threshold determination of whether the law governing the conduct at issue is clearly established is a question of law for the court.").

("The determination of whether the facts alleged could support a reasonable belief in the existence of probable cause or reasonable suspicion is also a question of law to be determined by the court."); see also Elder v. Holloway, 510 U.S. 510, 516 (1994) ("Whether an asserted federal right was clearly established at a particular time, so that a public official who allegedly violated the right has no qualified immunity from suit, presents a question of law, not one of legal facts." (internal quotation marks omitted)).

BULL!

Facts are for a jury, not a lone judge. The judge determines the appropriate law that should be applied to the case and the jury finds the facts in the case based on what is presented to them

Like here, where they had a question of fact and not law.

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Suspicion that viewpoint discrimination is afoot is at its zenith when the speech restricted is speech critical of the government," Ridley v. Mass. Bay Transp. Auth., 390 F.3d 65, 86 (1st Cir. 2004)

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