II. Recognition and Evolution of Immunity Defenses

LibrarySword and Shield: A Practical Approach to Section 1983 Litigation (ABA) (2015 Ed.)

II. RECOGNITION AND EVOLUTION OF IMMUNITY DEFENSES

Section 1983 was enacted to deter public officials from abusing their authority in a manner that deprives persons of their federally protected rights and to provide a remedy to victims of unconstitutional acts.1 Section 1983, however, contains no language addressing either absolute or qualified immunity for public officials alleged to have violated § 1983. Rather, individual immunity defenses from § 1983 liability are judicially created doctrines that stem from the common law as it existed when Congress enacted the Civil Rights Act of 1871, section 1 of which is now codified as § 1983. These historically recognized common-law immunities were driven by public policy and designed to protect public officials from litigation that might tend to chill the officials' proper exercise of discretion and divert the attention of public officials from their duties by unnecessary and time-consuming litigation.2 As stated by the U.S. Supreme Court in Owen v. City of Independence, "[w]here the immunity claimed by the defendant was well established at common law at the time § 1983 was enacted, and where its rationale was compatible with the purposes of the Civil Rights Act, we have construed the statute to incorporate that immunity."3

A. Source of Federal Immunities

The Supreme Court has consistently recognized individual immunity defenses that were well established in 1871 when Congress enacted the Civil Rights Act of 1871. Regardless of strong policy considerations, the Court has not, however, provided immunities from § 1983 actions where such immunities did not exist in 1871.4

In developing the federal immunities applicable in § 1983 litigation, the Supreme Court has chosen not to be influenced by the various state-law doctrines of immunity for governmental entities and government officials. Rather, the Supreme Court has held that federal law controls the immunity analysis under § 1983 even if the matter in question is pending in state court.5 Pursuant to the Supremacy Clause of the U.S. Constitution, federal laws are enforceable in state courts, and state courts are charged with the parallel responsibility of enforcing those laws according to their regular modes of procedure.6

No one disputes the general and unassailable proposition relied upon by the [state] Supreme Court below that States may establish the rules of procedure governing litigation in their own courts. By the same token, however, where state courts entertain a federally created cause of action, the "federal right cannot be defeated by the forms of local practice."7
Since immunity under the Civil Rights Act is a question of federal law, state courts are obligated to recognize and apply federal law regarding immunities to suits brought under § 1983.8

B. Distinction between Immunity from Damages and Immunity from Injunctive Relief

In Supreme Court of Virginia v. Consumers Union of the United States,9 the U.S. Supreme Court held that the Virginia Supreme Court and its chief justice could be sued under § 1983 for injunctive relief in their capacities as enforcers of the Virginia Supreme Court's disciplinary rules for lawyer advertising, which had been challenged on First Amendment grounds.10 The Court held that the Virginia Supreme Court could not, however, be sued for injunctive relief in its legislative capacity in promulgating the challenged rules or in its judicial capacity in adjudicating the constitutionality of the rules.11

Similarly, in Pulliam v. Allen,12 the Supreme Court held that judges are not absolutely immune from injunctive relief under § 1983.13 The Court, noting that actions in prohibition and mandamus had historically been used at common law to enjoin judicial actions, held that the lack of absolute immunity from injunctive relief...

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