Returning to the collateral order doctrine and determining what is and is not subject to review.
A government official sued for damages for a constitutional violation can assert an affirmative defense of qualified immunity; denial of dismissal is appealable under the COD. A private actor can sometimes be sued for constitutional violations when they act under the control of the state; such a private actor cannot assert qualified immunity, but they can raise an affirmative defense of "good faith." The Ninth Circuit held that denial of dismissal is not appealable under the COD. The analysis amounts to: This is an affirmative defense to liability, not an immunity from suit. Again, no reason (beyond precedent declaring so) given for why.
We will discuss qualified immunity and good-faith immunity in Civil Rights next semester. Expect this case to be on the oral argument list.
