XIV. Personal Capacity Claims: Absolute Immunities

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

XIV. PERSONAL-CAPACITY CLAIMS: ABSOLUTE IMMUNITIES

A. Absolute versus Qualified Immunity:

The Functional Approach

Officials sued for monetary relief in their personal capacities may be entitled to assert a defense of common-law absolute or qualified immunity. In general, absolute immunity may be asserted by judges, prosecutors, witnesses, and legislators, while executive and administrative officials may assert qualified immunity. However, whether an official is entitled to assert an absolute immunity as opposed to qualified immunity depends upon "the nature of the function performed, not the identity of the actor who performed it."²⁶² Thus, an official may be entitled to absolute immunity for carrying out one function and qualified immunity for another. For example, a judge may assert absolute judicial immunity for carrying out his judicial functions but only qualified immunity for carrying out administrative and executive functions, such as hiring and firing court employees.²⁶³ As discussed below, prosecutors may claim absolute prosecutorial immunity for their advocacy functions but normally may assert only qualified immunity for their investigatory and administrative functions.

B. Judicial Immunity

Absolute judicial immunity protects judges from liability for damages for their judicial acts, so long as they do not act in the clear absence of all jurisdictions.²⁶⁴ A judge does not lose absolute immunity simply because she acted in excess of jurisdiction; absolute immunity is lost only when the judge either did not perform a judicial act, or when the judge acted in the clear absence of all jurisdiction (e.g., a surrogate court judge who tries a felony). A judge who acts in excess of jurisdiction or without personal jurisdiction or who makes grave procedural errors does not necessarily act in the clear absence of all jurisdiction. To determine whether the judge performed a "judicial act," consideration is given to whether the judge engaged in action normally performed by a judge, and whether the parties dealt with the judge in his judicial capacity.²⁶⁵

Administrative hearing officers may claim absolute quasi-judicial immunity if they are sufficiently independent (politically) and if the hearing affords sufficient procedural safeguards so that the administrative process fairly resembles the judicial process.²⁶⁶ On the other hand, the Supreme Court has held that court reporters may not assert absolute immunity, because they do not engage in the kind of discretionary decision making or exercise of judgment protected by judicial immunity.²⁶⁷ Circuit court authority holds that judicial law clerks may claim absolute immunity.²⁶⁸

C. Prosecutorial Immunity

Prosecutors are absolutely immune when acting "as an advocate for the State" by engaging in conduct that is "intimately associated with the judicial phase of the criminal process."²⁶⁹ Supreme Court decisional law holds that "acts undertaken by a prosecutor in preparing for the initiation of judicial proceedings or for trial, and which occur in the course of his role as an advocate for the state, are entitled to the protection of absolute immunity."²⁷⁰ Prosecutorial immunity protects the prosecutor even if she acted "with an improper state of mind or improper motive."²⁷¹ Prosecutors are absolutely immune for carrying out such advocacy actions as

(a) deciding whether to prosecute;
(b) pretrial litigation activities concerning applications for arrest and search warrants, opposing bail applications, and opposing suppression motions;
(c) preparation for trial, including interviewing witnesses and evaluating evidence;
(d) plea bargaining;
(e) decisions relating to post-conviction proceedings;²⁷² and
(f) applying for a material witness warrant.²⁷³

Prosecutors, however, normally may not claim absolute immunity for investigative and administrative functions. Thus, prosecutors may assert only qualified immunity for such administrative and investigative functions as

(a) holding a press conference,²⁷⁴
(b) engaging in investigative activity prior to the establishment of probable cause to arrest,²⁷⁵ and
(c) advising the police in the investigative phase that there "probably" was probable cause to arrest.²⁷⁶

It is sometimes difficult to determine whether the prosecutor's actions should be characterized as advocacy as opposed to investigative or administrative. The courts have drawn some fine distinctions.²⁷⁷ For example, in Kalina v. Fletcher,²⁷⁸ the Supreme Court held that the prosecutor was protected by absolute prosecutorial immunity for preparing and filing a motion for an arrest warrant, because these were advocacy functions, but not for certifying facts to support probable cause, because that is the function of a complaining witness. A useful rule of thumb is that "[t]he more distant a function is from the judicial process, the less likely absolute immunity will attach."²⁷⁹ As discussed in Part XIV(D), below, complaining witnesses are not protected by absolute immunity.

In Van de Kamp v. Goldstein,²⁸⁰ the Supreme Court placed an important qualification on the principle that absolute prosecutorial immunity does not protect a prosecutor's investigative and administrative actions—namely, that absolute immunity will protect these actions when they are closely tied or related to the trial process. The Court in Van de Kamp held that the defendant supervisory prosecutors (a district attorney and his chief deputy) were absolutely immune from liability for their administrative failures to adequately train and supervise their trial prosecutors and failure to establish information systems, regarding disclosure to criminal defense counsel of impeachment material relating to jailhouse informants. The Court said that the fact that the supervisory prosecutors' general supervisory, training, and information management actions were at issue, rather than supervision of a particular prosecution, was not significant. Rather, what was significant was that the supervisory failures were intimately connected to the trial prosecutors' advocacy...