asserted constitutional violation in California

2013The high court then proceeded to consider “ ‘whether a constitutional tort action for damages to remedy the asserted constitutional violation should be recognized.’ [Citation.]” (Degrassi, supra, 29 Cal.4th at p. 342.) Applying the factors set forth in Katzberg , the court declined to recognize such a remedy for the asserted violation alleged in the case before it.

2004In such circumstances, we . . . proceed to consider whether a constitutional tort action for damages to remedy the asserted constitutional violation should be recognized.’ [Citation.]” (Id., at p. 342.) Degrassi then applied the factors set forth in Katzberg, supra, 29 Cal.4th at pages 324-329, to “decline to recognize a constitutional tort action for damages to remedy the asserted violation of article I, section 2(a), alleged in the case before us.” (Degrassi, supra, 29 Cal.4th at p. 342.) 11 Degrassi ruled “[t]he first two factors set out in Katzberg militate against recognition of a constit

2025In Katzberg, our Supreme Court laid out the framework for determining whether an action for monetary damages may be maintained “to remedy an asserted constitutional violation.” (Katzberg, supra, 29 Cal.4th at p. 317 .) First, for the framework to apply at all, the asserted constitutional violation must not be “tied to an established common law or statutory action.” (Id. at p. 303, fn. 1.) Then, if “no affirmative intent either to authorize or to withhold a damages remedy is found” from “the language and history of the constitutional provision at issue” “as well as any pertinent common law hist

2008Katzberg further instructs that we must now analyze “whether a constitutional tort action for damages to remedy the asserted constitutional violation should be recognized.” (Katzberg, supra, 29 Cal.4th at p. 324 .) Such question is to be considered in light of the three factors identified as relevant to this question, the first of which is “adequacy of existing remedies.” (Katzberg, supra, 29 Cal.4th at p. 325 .) As to this, plaintiff contends she had no adequate remedies because (a) the trial court dismissed her negligence claim, and (b) while injunctive and declaratory relief could protect h

2022(Katzberg, at p. 307, fn. 4.) It promulgated a comprehensive test for “determining the existence of a damages action to remedy an asserted constitutional violation” that entails consideration of “the language and history of the constitutional provision . . . as well as any pertinent common law history” and, if necessary, “the ‘constitutional tort’ analysis adopted by Bivens [v. Six Unknown Fed. Narcotics Agents (1971) 403 U.S. 388 ] and its progeny.’” (Id. at p. 317; see Lu v. Hawaiian Gardens Casino, Inc. (2010) 50 Cal.4th 592, 602 [describing the Katzberg analysis as “exhaustive”].) Ultimate

2007Defendant further urges that the asserted constitutional violation is a structural error, reversible per se (see Arizona v. Fulminante (1991) 499 U.S. 279, 310 [ 113 L.Ed.2d 302 , 111 S.Ct. 1246 ]), but that if we determine a harmless error standard applies, he was prejudiced by Judge Long’s erroneous declaration of a mistrial and his subsequent reprosecution.

2007Defendant further urges that the asserted constitutional violation is a structural error, reversible per se (see Arizona v. Fulminante (1991) 499 U.S. 279, 310 [ 113 L.Ed.2d 302 , 111 S.Ct. 1246 ]), but that if we determine a harmless error standard applies, he was prejudiced by Judge Long’s erroneous declaration of a mistrial and his subsequent reprosecution.

1996(In re Murchison (1955) 349 U.S. 133, 136 [ 99 L.Ed. 942, 946 , 75 S.Ct. 623 ].) The fact that an employee fails to make an objection that would not solve the asserted constitutional violation even if it were sustained cannot preclude the employee from raising the issue on appeal.

1996(In re Murchison (1955) 349 U.S. 133, 136 [ 99 L.Ed. 942, 946 , 75 S.Ct. 623 ].) The fact that an employee fails to make an objection that would not solve the asserted constitutional violation even if it were sustained cannot preclude the employee from raising the issue on appeal.