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Pro Se Tips and Tactics
In the June issue of PLN, I discussed the defense of so-called "qualified immunity" that is available to public officers and employees sued under 42 U.S.C. § 1983. This companion column discusses the other kind of immunity you may run into, so-called "absolute immunity" from a § 1983 suit. I first explain what an absolute immunity is, then give an overview of what officials are entitled to absolute immunity and under what circumstances, and finally provide a few practical suggestions.
1. What Absolute Immunity Is
An "immunity," as this word is used in § 1983 cases, refers to an "immunity from suit." A defendant who has an immunity cannot be sued for damages, as the courts have found that there are values more important than the plaintiff getting compensation.
An "absolute immunity" is an immunity that applies to persons acting in certain public offices. It is an immunity based on the role the person plays in the government. Courts have found that people acting in such roles should be free to act without the threat of suits for damages getting in the way of the decisions they have to make. These immunities are called "absolute immunities" to distinguish them from "qualified immunity," which depends not on the role the governmental official plays but rather on whether the law was clear enough to put the official on notice that his or her actions were unconstitutional.
Importantly, people playing the roles that provide absolute immunity are not given immunity for all of their actions, but only for those actions they take in the role that provides immunity. Thus, for example, as discussed in more detail below, a judge is immune for all actions taken as a judge, but is not immune for actions that are really not judicial actions.
Immunities typically apply only to suits for damages. As detailed in the column on qualified immunity, immunities, including absolute immunities, do not generally apply to claims for declaratory and injunctive relief. See: Pulliam v. Allen, 466 U.S. 522 (1984). There is one exception to this, which I note below.
2. Who Is And Is Not Entitled To Absolute Immunity
The following is a general overview of some of the roles that provide absolute immunity to those who play those roles. This overview provides only general principles and cannot cover every role where immunity questions have arisen or every aspect of the many cases that flesh out the details of absolute immunity.
a. Judges
Judges have broad absolute immunity for all acts taken as a judge, no matter how unjustifiable those acts may seem to be. For example, in Stump v. Sparkman, 435 U.S. 349 (1978), the Supreme Court granted absolute immunity to a judge who issued an order for sterilization of a teenager at the request of her parent without holding a hearing. See also Mireles v. Waco, 502 U.S. 9 (1991), in which a judge was held immune from a claim that he ordered two court officers to use excessive force to force a public defender into his courtroom from another courtroom.
Only actions taken by a person who happens to be a judge that are definitely not judicial acts have been found to be free from immunity. For example, a person who is a judge but who acts in an executive or administrative function (such as in the supervision and firing of employees) is not entitled to absolute judicial immunity. Forrester v. White, 484 U.S. 219 (1988). Likewise, if a judge does things that are the job of the police or prosecutors, there is no absolute immunity. See: Malina v. Gonzales, 994 F.2d 1121, 1124 (5th Cir. 1993), in which a judge pulled a driver over on the highway, got a police officer to bring the driver to court, charged him with crimes, cited him with contempt, and sent him to jail. The judge was held absolutely immune from a damages claim for the contempt citation and sentencing, but not for the arrest and charging because those were the roles of the police and prosecutors, not the judge.
b. Prosecutors
Prosecutors are absolutely immune for performing the prosecutorial functions of charging crimes and presenting the government's case at trial or other hearings, even if the case involves allegations that the prosecutor knowingly used perjured testimony or conspired with the judge to rig the outcome of a case. Imbler v. Pachtman, 424 U.S. 409 (1976); Ashelman v. Pope, 793 F.2d 1072 (9th Cir. 1986).
Prosecutors performing police, administrative, or other non-prosecutorial functions are not entitled to absolute immunity. Mitchell v. Forsyth, 472 U.S. 511 (1985) (John Mitchell, Nixon's Attorney General, was not acting as a prosecutor when he engaged in wiretapping); Buckley v. Fitzsimmons, 113 S.Ct. 2606 (1993) (no absolute immunity for statements made at a press conference or for allegedly fabricating evidence before indictment); Burns v. Reed, 500 U.S. 478 (1991) (absolute immunity granted for prosecutor's participation in a probable cause hearing but not for advice he gave the police about the use of hypnosis for interrogation and whether they had probable cause to arrest).
c. Witnesses, Court Personnel, etc.
Witnesses, including police officers allegedly giving false testimony, have absolute immunity for their testimony. Briscoe v. LaHue, 460 U.S. 325 (1983).
Law clerks, court clerks, and others acting essentially as an extension of a judge (such as masters or receivers) have generally been given judicial immunity for acts closely connected to the judicial process. See, for example, Sindram v. Suda, 986 F.2d 1459 (D.C. Cir. 1993)(clerks). The question of immunity for other people who act under court authority, such as a police officer or even a doctor carrying out a court order, is complicated and beyond the scope of this column, but in general terms most of those carrying out court orders have been granted "quasi-judicial" absolute immunity.
Court reporters, on the other hand, are not given absolute immunity. See: Antoine v. Byers & Anderson, 113 S.Ct. 2167 (1993). Antoine possibly has greater importance as well, as it may be applied to limit the broad immunity that has usually been granted to court clerks and other court personnel. See: Woodard v. Mennella, 861 F.Supp. 192 (EDNY 1994).
d. Parole Boards and Officers
Parole boards and officers carry out both "quasi-judicial" functions, such as granting or denying release, and executive functions. They have almost always been given absolute immunity for the quasi-judicial decision to grant or deny parole, and for functions directly connected with this judge-like function. See, for example, Sellars v. Procunier, 641 F.2d 1295 (9th Cir. 1981). They are generally refused absolute immunity for functions that are executive and not closely related to their quasi-judicial function.
e. Hearing Officers or Committees
The Supreme Court held that prison disciplinary hearing officers are not enough like judges to be granted absolute immunity. See: Cleavinger v. Saxner, 474 U.S. 193 (1985). The Court emphasized that the hearing officers are not nearly as independent as judges are, but instead are employees of the prison. Many administrative law judges are given absolute immunity, however. See: Butz v. Economou, 438 U.S. 478 (1978)
f. Legislators
National, state and local legislators are absolutely immune for actions taken as legislators, such as passing laws and holding hearings. See: Tenney v. Brandhove, 341 U.S. 367 (1951); Fry v. Board of County Commissioners, 7 F.3d 936 (10th Cir. 1993). The exact scope of what acts are covered is a complicated question beyond the scope of this column. Legislators are uniquely immune even from injunctive relief for actions taken in the legislative process. See: Supreme Court v. Consumers Union, 446 U.S. 719 (1980).
Note, however, that legislative immunity does not mean that the legislation passed is free from constitutional attack in a § 1983 suit. See: Goldberg v. Town of Rocky Hill, 973 F.2d 70 (2nd cir. 1992). Rather, legislative immunity is protection from personal liability for legislators and from an injunction against the legislative process.
4. Practice Tips
a. Even If Absolute Immunity Doesn't Apply, There May Be Qualified Immunity
Even if a public official is not provided absolute immunity, that same official may be protected by the qualified immunity defense discussed in my last column. So, for example, even if you show that a prosecutor involved in your case was acting more like a police officer than a prosecutor and therefore cannot be given absolute prosecutorial immunity, the same prosecutor may be able to raise a qualified immunity claim. The details of how qualified immunity is figured out are discussed in the column on qualified immunity.
b. Deciding Whether You Have A Damages Claim Against Particular Officials
It is important to establish credibility with the court in which you are doing your case. In addition to stating only things that you know or reasonably believe to be true, your credibility can also be helped by knowing who can be sued and who cannot. So, if someone has acted in a role that certainly will provide them with absolute immunity (for example they were doing something in court as a judge), don't bother to sue them for damages. It is a waste of time, it will require you to amend the complaint (or it will require dismissal if they are the only defendant), and it will hurt your credibility with the court.
On the other hand, if a person who harmed you was acting in a manner that was outside the role that normally gives them absolute immunity, you may be able to support a case for damages against them. Think about what specifically and truthfully you can say about what that person did that might show that they were acting outside the role that normally gives them immunity.
c. A Special Problem In
Cases Against Actors In The
Criminal Justice System
If the claim you want to raise involves suing actors in the criminal justice system for actions that led to your conviction or sentence, you likely have another problem besides potential absolute immunity for those actors. In Heck v. Humphrey, 114 S.Ct. 2363 (1994), the Supreme Court held that claims implicating the validity of a conviction or sentence cannot be brought in a § 1983 case unless the conviction or sentence has been ruled unlawful on appeal or in a habeas corpus proceeding.
The details of what Heck means is beyond the scope of this column, but if you are thinking of bringing a claim regarding what got you into prison, you should look into how Heck may affect your case. You may well have to get relief in your appeal or in a habeas case before you can even file your § 1983 claim.
[John Midgley is an attorney for Columbia Legal Services in Washington.]
1. What Absolute Immunity Is
An "immunity," as this word is used in § 1983 cases, refers to an "immunity from suit." A defendant who has an immunity cannot be sued for damages, as the courts have found that there are values more important than the plaintiff getting compensation.
An "absolute immunity" is an immunity that applies to persons acting in certain public offices. It is an immunity based on the role the person plays in the government. Courts have found that people acting in such roles should be free to act without the threat of suits for damages getting in the way of the decisions they have to make. These immunities are called "absolute immunities" to distinguish them from "qualified immunity," which depends not on the role the governmental official plays but rather on whether the law was clear enough to put the official on notice that his or her actions were unconstitutional.
Importantly, people playing the roles that provide absolute immunity are not given immunity for all of their actions, but only for those actions they take in the role that provides immunity. Thus, for example, as discussed in more detail below, a judge is immune for all actions taken as a judge, but is not immune for actions that are really not judicial actions.
Immunities typically apply only to suits for damages. As detailed in the column on qualified immunity, immunities, including absolute immunities, do not generally apply to claims for declaratory and injunctive relief. See: Pulliam v. Allen, 466 U.S. 522 (1984). There is one exception to this, which I note below.
2. Who Is And Is Not Entitled To Absolute Immunity
The following is a general overview of some of the roles that provide absolute immunity to those who play those roles. This overview provides only general principles and cannot cover every role where immunity questions have arisen or every aspect of the many cases that flesh out the details of absolute immunity.
a. Judges
Judges have broad absolute immunity for all acts taken as a judge, no matter how unjustifiable those acts may seem to be. For example, in Stump v. Sparkman, 435 U.S. 349 (1978), the Supreme Court granted absolute immunity to a judge who issued an order for sterilization of a teenager at the request of her parent without holding a hearing. See also Mireles v. Waco, 502 U.S. 9 (1991), in which a judge was held immune from a claim that he ordered two court officers to use excessive force to force a public defender into his courtroom from another courtroom.
Only actions taken by a person who happens to be a judge that are definitely not judicial acts have been found to be free from immunity. For example, a person who is a judge but who acts in an executive or administrative function (such as in the supervision and firing of employees) is not entitled to absolute judicial immunity. Forrester v. White, 484 U.S. 219 (1988). Likewise, if a judge does things that are the job of the police or prosecutors, there is no absolute immunity. See: Malina v. Gonzales, 994 F.2d 1121, 1124 (5th Cir. 1993), in which a judge pulled a driver over on the highway, got a police officer to bring the driver to court, charged him with crimes, cited him with contempt, and sent him to jail. The judge was held absolutely immune from a damages claim for the contempt citation and sentencing, but not for the arrest and charging because those were the roles of the police and prosecutors, not the judge.
b. Prosecutors
Prosecutors are absolutely immune for performing the prosecutorial functions of charging crimes and presenting the government's case at trial or other hearings, even if the case involves allegations that the prosecutor knowingly used perjured testimony or conspired with the judge to rig the outcome of a case. Imbler v. Pachtman, 424 U.S. 409 (1976); Ashelman v. Pope, 793 F.2d 1072 (9th Cir. 1986).
Prosecutors performing police, administrative, or other non-prosecutorial functions are not entitled to absolute immunity. Mitchell v. Forsyth, 472 U.S. 511 (1985) (John Mitchell, Nixon's Attorney General, was not acting as a prosecutor when he engaged in wiretapping); Buckley v. Fitzsimmons, 113 S.Ct. 2606 (1993) (no absolute immunity for statements made at a press conference or for allegedly fabricating evidence before indictment); Burns v. Reed, 500 U.S. 478 (1991) (absolute immunity granted for prosecutor's participation in a probable cause hearing but not for advice he gave the police about the use of hypnosis for interrogation and whether they had probable cause to arrest).
c. Witnesses, Court Personnel, etc.
Witnesses, including police officers allegedly giving false testimony, have absolute immunity for their testimony. Briscoe v. LaHue, 460 U.S. 325 (1983).
Law clerks, court clerks, and others acting essentially as an extension of a judge (such as masters or receivers) have generally been given judicial immunity for acts closely connected to the judicial process. See, for example, Sindram v. Suda, 986 F.2d 1459 (D.C. Cir. 1993)(clerks). The question of immunity for other people who act under court authority, such as a police officer or even a doctor carrying out a court order, is complicated and beyond the scope of this column, but in general terms most of those carrying out court orders have been granted "quasi-judicial" absolute immunity.
Court reporters, on the other hand, are not given absolute immunity. See: Antoine v. Byers & Anderson, 113 S.Ct. 2167 (1993). Antoine possibly has greater importance as well, as it may be applied to limit the broad immunity that has usually been granted to court clerks and other court personnel. See: Woodard v. Mennella, 861 F.Supp. 192 (EDNY 1994).
d. Parole Boards and Officers
Parole boards and officers carry out both "quasi-judicial" functions, such as granting or denying release, and executive functions. They have almost always been given absolute immunity for the quasi-judicial decision to grant or deny parole, and for functions directly connected with this judge-like function. See, for example, Sellars v. Procunier, 641 F.2d 1295 (9th Cir. 1981). They are generally refused absolute immunity for functions that are executive and not closely related to their quasi-judicial function.
e. Hearing Officers or Committees
The Supreme Court held that prison disciplinary hearing officers are not enough like judges to be granted absolute immunity. See: Cleavinger v. Saxner, 474 U.S. 193 (1985). The Court emphasized that the hearing officers are not nearly as independent as judges are, but instead are employees of the prison. Many administrative law judges are given absolute immunity, however. See: Butz v. Economou, 438 U.S. 478 (1978)
f. Legislators
National, state and local legislators are absolutely immune for actions taken as legislators, such as passing laws and holding hearings. See: Tenney v. Brandhove, 341 U.S. 367 (1951); Fry v. Board of County Commissioners, 7 F.3d 936 (10th Cir. 1993). The exact scope of what acts are covered is a complicated question beyond the scope of this column. Legislators are uniquely immune even from injunctive relief for actions taken in the legislative process. See: Supreme Court v. Consumers Union, 446 U.S. 719 (1980).
Note, however, that legislative immunity does not mean that the legislation passed is free from constitutional attack in a § 1983 suit. See: Goldberg v. Town of Rocky Hill, 973 F.2d 70 (2nd cir. 1992). Rather, legislative immunity is protection from personal liability for legislators and from an injunction against the legislative process.
4. Practice Tips
a. Even If Absolute Immunity Doesn't Apply, There May Be Qualified Immunity
Even if a public official is not provided absolute immunity, that same official may be protected by the qualified immunity defense discussed in my last column. So, for example, even if you show that a prosecutor involved in your case was acting more like a police officer than a prosecutor and therefore cannot be given absolute prosecutorial immunity, the same prosecutor may be able to raise a qualified immunity claim. The details of how qualified immunity is figured out are discussed in the column on qualified immunity.
b. Deciding Whether You Have A Damages Claim Against Particular Officials
It is important to establish credibility with the court in which you are doing your case. In addition to stating only things that you know or reasonably believe to be true, your credibility can also be helped by knowing who can be sued and who cannot. So, if someone has acted in a role that certainly will provide them with absolute immunity (for example they were doing something in court as a judge), don't bother to sue them for damages. It is a waste of time, it will require you to amend the complaint (or it will require dismissal if they are the only defendant), and it will hurt your credibility with the court.
On the other hand, if a person who harmed you was acting in a manner that was outside the role that normally gives them absolute immunity, you may be able to support a case for damages against them. Think about what specifically and truthfully you can say about what that person did that might show that they were acting outside the role that normally gives them immunity.
c. A Special Problem In
Cases Against Actors In The
Criminal Justice System
If the claim you want to raise involves suing actors in the criminal justice system for actions that led to your conviction or sentence, you likely have another problem besides potential absolute immunity for those actors. In Heck v. Humphrey, 114 S.Ct. 2363 (1994), the Supreme Court held that claims implicating the validity of a conviction or sentence cannot be brought in a § 1983 case unless the conviction or sentence has been ruled unlawful on appeal or in a habeas corpus proceeding.
The details of what Heck means is beyond the scope of this column, but if you are thinking of bringing a claim regarding what got you into prison, you should look into how Heck may affect your case. You may well have to get relief in your appeal or in a habeas case before you can even file your § 1983 claim.
[John Midgley is an attorney for Columbia Legal Services in Washington.]
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