Immunity Under Section 1983
| Publication year | 1996 |
| Pages | 30 |
65 J. Kan. Bar Assn. June/July, 30 (1996). IMMUNITY UNDER SECTION 1983
June/July, 1996
Copyright (c) 1996 by the Kansas Bar Association; Michael T. Jilka
I. Introduction
Over the past three decades, section 1983 [FN1] has become the principal vehicle for remedying violations of rights secured by federal statutory and constitutional law. The statute creates a cause of action against persons who act under color of state law and violate federal [FN2] constitutional or statutory rights. [FN3] A cursory glance at any recent volume of the Federal Reporter or Federal Supplement will show numerous cases addressing the statute. Despite its popularity, § 1983 continues to generate confusion and debate among lawyers, judges and scholars. The purpose of this article is to explain the doctrine of immunity and its application under § 1983.
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II. Text and Purpose
Section 1983 was enacted to interpose the federal courts between the States and the people as guarantors of the constitutional rights of the newly freed slaves. [FN4] It provides, in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State...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,...for redress. Although the text of the statute makes no mention of immunities, the United States Supreme Court has consistently held that all government officials are entitled to some degree of immunity. [FN5] This conclusion rests on the assumption that members of the 42nd Congress were familiar with common law principles, including defenses previously recognized in ordinary tort litigation and likely intended these common law principles to remain unaffected, absent specific provisions to the contrary. [FN6]
In its immunity jurisprudence, the Supreme Court has sought to strike a balance between compensating the victims of wrongful actions and deterring unconstitutional conduct by government officials, while at the same time insuring that government officials carry out their duties without undue threats of liability. [FN7] In striking this balance, the Court has placed emphasis on the common law as it existed on or before 1871, as well as on an analysis of the policies that underlie immunity to determine whether recognition of immunity is compatible with the remedial purposes of § 1983. [FN8] In making this "considered inquiry," the Court has consistently espoused a functional approach to immunity questions. [FN9] Under that approach, the Court "examine s the nature of the functions with which a particular official or class of officials has been lawfully entrusted, and...seek s to evaluate the effect that exposure to particular forms of liability will likely have on the appropriate exercise of those functions." [FN10]
A. Official Capacity Suits Versus Individual Capacity Suits
Government officials named as defendants in § 1983 suits can be sued in either their official capacity or their individual capacity. [FN11] The two types of suits are analytically distinct. Official capacity suits "generally represent only another way of pleading an action against an entity of which an officer is an agent." [FN12] Individual capacity suits, on the other hand, seek to impose individual liability upon a government official for actions taken under color of state law. [FN13] The capacity in which a defendant is sued determines whether immunity can be invoked. A defendant sued in her official capacity cannot claim immunity. [FN14] An individual sued in her individual capacity, however, can claim immunity. [FN15]
While defendants sued in their official capacities cannot invoke immunity, certain principles restrict the availability of official capacity suits. First, not every governmental entity is a "person" subject to suit under § 1983. In Will v. Michigan Dept. of State Police, [FN16] the Supreme Court held that neither a State nor its officials acting in their official capacities are "persons" under § 1983.17 The Court had previously held that the Eleventh Amendment barred § 1983 suits against a State in federal court. [FN18] This holding left open the question of whether a State could be sued in state court under § 1983. [FN19] Will answered this question in the negative. The Court reasoned that Congress, which was presumptively aware of the Eleventh Amendment bar to § 1983 suits against a State in federal court, [FN20] could not have intended to authorize such suits in state court. [FN21]
In Hafer v. Melo, [FN22] the Supreme Court further clarified the distinction between official capacity and individual capacity suits. Hafer was sued under § 1983 in her official and individual capacities by several former employees of
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the Pennsylvania Auditor General's office. In the Supreme Court, Hafer attempted to draw a distinction between official and individual capacity suits by arguing that § 1983 liability turns not on the capacity in which a state officer is sued, but on the capacity in which the official inflicts the injury. In effect, Hafer argued she could not be sued in her individual capacity under § 1983 for acts done in the course of her official duties. The Supreme Court firmly rejected Hafer's argument. The Court held that state officials sued in their individual capacities are "persons" within the meaning of § 1983 and are not immune from personal liability solely by virtue of the official nature of their actions. [FN23]
The holdings of Will and Hafer come with an important qualification. The State is not a "person" under § 1983 only when the suit seeks monetary damages. The State is a "person" under § 1983 if the suit seeks prospective injunctive relief. [FN24]
Since States are not considered "persons" under § 1983 when a suit seeks monetary damages, the principal governmental entities from whom a plaintiff may seek an award of monetary damages in a § 1983 suit are counties and municipalities. [FN25] In Monell v. New York City Dept. of Social Services, [FN26] the Supreme Court overruled its decision in Monroe v. Pape, [FN27] and held that municipalities are "persons" within the meaning of § 1983. [FN28] Monell added an additional requirement for the imposition of municipal liability, however. Although a municipality is a "person" under § 1983, it cannot be held liable for monetary damages on the basis of respondeat superior. [FN29] A municipality may only be liable if its policy or custom caused the deprivation of plaintiff's constitutional rights. [FN30]
III. Absolute Immunity
Individuals performing certain functions are entitled to absolute immunity under § 1983. The Supreme Court has recognized absolute immunity for those persons performing judicial, prosecutorial, and legislative functions, as well as police officers serving as witnesses at trial and the President of the United States. In deciding questions of absolute immunity under § 1983, courts consider the function the individual performs, not the title he holds. [FN31] In addition, courts look to such factors as the immunity historically accorded the officer at common law, the risk of vexatious litigation, and the availability of other safeguards to prevent abuses of authority. [FN32]
A. Judicial Immunity
Judges have absolute immunity to suits seeking monetary damages for their judicial acts. [FN33] As far back as 1872, the Supreme Court found judicial immunity to be the centuries-old doctrine of the English courts and universally recognized in the United States. [FN34] The main purpose underlying judicial immunity is to preserve the independence of the judiciary and insure the impartial rendering of justice. [FN35] Disappointed litigants will often bear animus towards the judge, and, absent immunity, an avalanche of lawsuits against judges by such litigants could be expected. Immunity assures that judges perform their duties without harassment or intimidation. In addition, safeguards built into the judicial process, such as the adversary nature of the process and the availability of appellate review, [FN36] serve to protect persons from the consequences of judicial error.
Judicial immunity is overcome in only two sets of circumstances. First, a judge is not immune from liability for nonjudicial acts. [FN37] For example, in Forrester v. White, [FN38] a judge was sued for sex discrimination in terminating a probation officer's employment. The Supreme Court held the judge's acts were of an administrative, not judicial, nature. [FN39] Absolute immunity therefore did not attach.
In contrast, the Supreme Court recently held that a judge was absolutely immune for ordering police officers to bring an attorney before him, even if the judge directed the officers to carry out the order with excessive force. [FN40] The Court emphasized that the relevant inquiry was the nature and function of the judge's act, not the act itself. [FN41] Thus, the function of directing police officers to bring an attorney to court in a pending case was deemed judicial in character. [FN42]
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The second situation in which judicial immunity is overcome occurs when a judge's acts, though judicial in nature, are taken "in the complete absence of all jurisdiction." [FN43] The Supreme Court has narrowly construed this limitation. In Stump v. Sparkman, [FN44] an Indiana Circuit Court judge was sued for issuing an order to sterilize a fifteen-year-old girl. The girl's mother approached the judge and informed him that her daughter was somewhat retarded and staying out with older men. She further informed the judge that sterilization was necessary to prevent...
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