The Complicated Web of Immunities That Makes Accountability So Difficult
Opening Arguments
Opening Arguments Media LLC
4.3 • 3.7K Ratings
🗓️ 26 January 2026
⏱️ 66 minutes
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Summary
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.
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Siegell v Herricks Union Free School District, 7 AD3d 607 [2d Dept 2004] (Elements of civil battery in NY)
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N.Y. Penal Law § 120 (NY criminal “battery”)
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Fla. Stat. § 776.032 (Florida self-defense as an affirmative defense and immunity)
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Ohio Rev. Code § 2901.05 (Ohio self-defense as a standard defense)
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N.Y. Penal Law § 35 (NY justification defenses)
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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).
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Michael Gentithes, Harvesting the Grand Jury’s “Lay Expertise” in Officer-Involved Shootings, U. Ill. L. Rev. 989 (2025).
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In re Neagle, 135 U.S. 1 (1890)
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Gregory C. Sisk, A Primer on the Doctrine of Federal Sovereign Immunity, 439 Okla. L. Rev. 58 (2005).
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Miles McCann, State Sovereign Immunity, National Association of Attorneys General (Nov. 11, 2017)
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State Sovereign Immunity - Generally, Interstate Commission for Juveniles, https://www.juvenilecompact.org/bench-book/chapter-6-1
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Ex Parte Young, 209 U.S. 123 (1908)
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Scheuer v. Rhodes, 416 U.S. 232 (1974)
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Moor v. County of Alameda, 411 U.S. 693 (1973)
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O’Shea v Littleton, 414 U.S. 488 (1974)
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Judicial Immunity at the (Second) Founding: A New Perspective on § 1983, 136 Harvard L. Rev. 1456 (2023).
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Transcript
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| 0:00.0 | They're just kids. |
| 0:04.5 | There's 38-year-old kids, you know, just doing Nazi stuff. |
| 0:07.9 | You can't hold him a kid. |
| 0:08.7 | We're just going to ruin their life for this. |
| 0:17.6 | I'm putting this individual on trial for a crime he committed in our state that is outside the bounds of what the Fed This is episode 1229. I'm Thomas Smith. |
| 0:47.3 | Well, as you're no doubt aware, there's another awful, terrible, heartbreaking public execution over the weekend. I don't know if it's just the |
| 0:55.4 | particulars of this one or just the cumulative effect, but boy, this one sure hit me hard. I've |
| 1:00.8 | been trying to record a serious inquiries only on it, but I've tried and failed a lot of times. |
| 1:05.5 | It's, it's hard to even have the words. So I'm going to probably keep trying for that. |
| 1:11.9 | Keep an eye on that feed if you'd like to hear my thoughts. |
| 1:14.1 | But I wanted to note that Janessa and I actually recorded this after the last public execution, |
| 1:20.2 | not immediately after, some time had passed. |
| 1:22.5 | Janessa thought, and she was absolutely right, that it would be great to take us on a deep dive on not just qualified |
| 1:29.3 | immunity, which I think we all know something about, but really clarifying a bunch of different |
| 1:34.2 | things around the theme of holding the government accountable or government agents accountable at |
| 1:39.5 | different levels, state, federal, all that stuff. I just wanted to note, though, that this |
| 1:43.3 | was definitely |
| 1:44.1 | recorded at a different time before the events of this weekend, back in the carefree days |
| 1:48.8 | of like a week ago, relatively speaking. All right, I'll hand it right over to Janessa and I, |
| 1:54.2 | and, oh, and important to note, this was a two-parter by design. |
| 1:58.5 | Genessa had so much to teach us. Because of kind of the way the schedule works, |
| 2:03.5 | unfortunately I have to go Monday to Monday, which is I don't love, but that means you're going to have |
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