Act Up!/Portland v. Bagley

Act Up!/Portland v. Bagley holds that the second prong of the qualified immunity test — whether “agents acted reasonably under settled law in the circumstances,” Hunter v. Bryant, — U.S. -, -, 112 S.Ct. 534, 537, 116 L.Ed.2d 589 (1991) — is no longer a jury question, but a question of law for the court. In so holding, ActUp! repudiates the settled law of seven circuits, including our own.1

ActUp! also defies our common law tradition, which since time immemorial has considered the reasonableness of human conduct to be a quintessential jury question. *875Finally, by dividing the fact-bound question…