Absolute and Qualified

Immunity
 Qualified and Absolute Immunity
• Officers who perform discretionary functions generally have some
form of immunity from liability and suit when sued in their
individual capacities; this applies to sec. 1983 and Bivens claims
• Where does this come from? It’s not in the statute, even though,
as we’ve seen, a lot of the requirements for sec. 1983 suits have a
statutory basis because it is, after all, a statutory cause of action
• The Supreme Court has concluded that sec. 1983 intended to
preserve, rather than abrogate, traditional immunities from
liability; the Court originally ruled on this issue in the context of
legislative immunity where it is most likely to be true; and that
rationale has migrated to other areas (like police officers) where
it’s less likely to be true
 Qualified and Absolute Immunity
• Why would we want some form of immunity—and why should that
immunity be absolute? Consider how some wrongs are without any
redress (Stump is a powerful example and there are countless others,
which is one reason why such immunity has come under attack)
• Protection ensures that judges/legislators/etc. do not act out of fear of
being sued; and there are alternatives (ethics inquiries, elections, etc.)
• Absolute immunity applies to judges acting in judicial function;
legislators acting in legislative function; the President; police officers
who are testifying; and prosecutors
• Absolute immunity is broad; we don’t inquire into whether the action
was right or wrong, only whether within the function that receives
protection; judges must not act in “clear absence of all jurisdiction” (a
tough standard if judge has general jurisdiction)
 Qualified Immunity
• Qualified immunity is narrower and applies to everyone else;
state/federal actors are immune if their actions have not violated
“clearly established” federal/constitutional law (Harlow)
• Two inquiries: whether action violated federal/constitutional law;
and whether law was “clearly established” at the time of action
• Can be “clearly established” if on all fours with controlling
precedent (Sup Ct, relevant circuit, state supreme court); can also
be “clearly established” if “every reasonable” officer would have
known that the action violated federal law
• It’s an objective standard that can be tested on a motion to
dismiss or motion for summary judgment and is subject to
immediate appeal (if not a fact issue)
 Qualified Immunity
• One of the challenges with qualified immunity is that it’s really
particularized, based on the law at the time of the conduct, and it
operates to substantially protect the officer; it’s a pretty high
barrier to relief
• So, for example, the inquiry is not whether the conduct at issue
violates the Fourth Amendment, or whether the Fourth
Amendment protects against unreasonable searches and seizures;
it’s whether the defendant’s conduct was clearly unlawful, which
requires “every” reasonable official to know that it was a violation
of the Fourth Amendment—it must be “beyond debate”
• We assess this objectively based on the facts known to the officer
at the time, applying law that governed at the time
 Qualified Immunity
• Absolute immunity has historical origins, but qualified immunity is
really ahistorical—it looks like nothing that existed in 1871 (where
it was really a “good faith” and subjective inquiry; its justification is
a policy one, not an historical one
• But the justification is similar: the need to balance remedies to
injured plaintiffs with the need to avoid chilling of officials
• Those who are critical of qualified immunity often point out that
defendants don’t pay out of pocket, so they aren’t really being
chilled—they are not facing the financial consequences of their
actions; and the policy foundations are even rickety themselves;
recent studies demonstrate that qualified immunity rarely shields
defendants from suit or discovery