Governmental Employee Immunity in Actions Brought Pursuant to 42 U.s.c. Section 1983
| Publication year | 2009 |
| Pages | 29 |
| Citation | Vol. 38 No. 10 Pg. 29 |
2009, October, Pg. 29. Governmental Employee Immunity in Actions Brought Pursuant to 42 U.S.C. Section 1983
October 2009
Vol. 38, No. 10 [Page 29]
About the Author
Cathy Havener Greer has practiced law since 1976. She served as an Assistant Attorney General for Colorado and as an assistant prosecuting attorney in Missouri, entering private practice in 1987. She is a member of Wells Anderson & Race, LLC, where she focuses on civil rights employment and commercial litigation, specifically the defense of companies, public entities, and officials in federal and state trial and appellate courts and administrative agencies, and arbitrations and mediations.
Federal claims against individual government officials must be considered in the context of absolute and qualified immunity. This article provides a historical analysis of these immunities and the practical application in 42 U.S.C. § 1983.
Despite being in existence for more than 100 years, 42 U.S.C. § 1983 did not spawn significant litigation until the last quarter of the 20th century. Few areas of the law have developed as rapidly as § 1983 litigation against governmental entities and officials,(fn1) and few areas of the law have as great an impact on the daily lives of American citizens.(fn2) Section 1983 states:
Section 1983 is a vehicle for the enforcement of federal rights. The rights involved may be federal constitutional or statutory rights. The types of claims can range from allegations of violations of the First Amendment in the context of freedom of speech of public employees, to the Eighth Amendment and medical care of persons convicted of crimes. Section 1983 cases can involve allegations of excessive force or unreasonable searches or seizures by police officers under the Fourth Amendment, as well as allegations of unconstitutional takings by local governments. Claims of equal protection violations due to gender or race or national origin also may be brought as § 1983 claims. The Civil Rights Attorney's Fees Award Act of 1976, 42 U.S.C. § 1988(b) authorizes attorney fees to be awarded to prevailing parties in § 1983 actionsEvery person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.
This article addresses only those issues related to the claims against and immunities of individual governmental officials sued in their individual or personal capacities for damages. The treatises by Martin A. Schwartz and Sheldon H. Nahmod, which are cited in the notes to this article, are excellent sources for a thorough understanding of § 1983 litigation.
Defending the Individual Governmental Official
Although there is no language in § 1983 that refers to immunities to which an individual defendant is entitled, courts have long held that Congress did not intend to abrogate immunities that were recognized at the time of enactment of § 1983.(fn3) The immunities provided to individuals under state law, such as the Colorado Governmental Immunity Act,(fn4) do not immunize individual governmental defendants as to claims arising under § 1983.(fn5)
Absolute Immunity
Governmental officials who carry out certain critical government functions are entitled to absolute immunity if sued in their individual capacities. The officials for whom absolute immunity often is applicable include judges, individuals acting in quasi-judicial capacities, prosecutors or district attorneys, and legislators. A brief discussion of each follows.
Judges and Law Enforcement Officials
Judges are entitled to absolute immunity for their judicial or adjudicative acts.(fn6) However, when a judge acts in an administrative rather than judicial capacity, such as when the judge disciplines or discharges a staff member, the judge is entitled only to qualified immunity.(fn7)
Other officials who carry out judicial functions or who are "integral parts of the judicial process" also may be able to assert absolute judicial or quasi-judicial immunity.(fn8) This immunity can extend to law enforcement officials executing facially valid court orders,(fn9) and to parole board members who decide to grant, deny, or revoke parole.(fn10) Similarly, courts have granted absolute immunity to court-appointed experts as to their evaluations and expert testimony.(fn11) The scope of absolute immunity in the context of judicial proceedings also has encompassed issues of witness testimony during grand jury proceedings and at trial.(fn12)
Prosecutors
The functional approach to absolute immunity applies also to an analysis of the conduct of prosecutors. In Imbler v. Pachtman,(fn13) the U.S. Supreme Court first considered the scope of prosecutorial immunity in the § 1983 context. The Court held "in initiating a prosecution and in presenting the State's case, the prosecutor is immune from a civil suit for damages under §1983."(fn14) In contrast, when a prosecutor acted in the capacity of "complaining witness" and personally signed and attested to the truthfulness of false statements of fact in a probable cause affidavit, the Supreme Court denied the prosecutor absolute immunity.(fn15)
Legislators
The Legislative Branch of government also provides the basis for a claim of absolute immunity when an individual legislator is sued under § 1983. As with judicial and quasi-judicial immunity and prosecutorial immunity, the entitlement to legislative immunity depends on the function the governmental official was performing. Acts such as voting, deciding whether or not to introduce legislation, and...
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