Eleanor Finch
There are three types of immunity for constitutional violations: absolute immunity, qualified immunity, and sovereign immunity. Absolute immunity is a type of sovereign immunity that protects government officials from criminal prosecution and civil suits for damages, so long as they are acting within the scope of their duties. Qualified immunity, on the other hand, is a judicially created doctrine that shields government officials from personal liability for violating constitutional rights, such as the right to be free from excessive police force, as long as the officials did not violate clearly established law. Sovereign immunity, which is derived from the original Constitution, gives a ruling government body the option to choose immunity from civil lawsuits or criminal prosecution, meaning that no person can sue the government without its consent.
Immunity for Constitutional Violations
| Characteristics | Values |
|---|---|
| Absolute Immunity | Applies to judges, prosecutors, jurors, legislators, and the highest executive officials of all governments |
| Offers complete immunity from criminal prosecution and civil suits for damages | |
| Only applies when officials are acting within the scope of their duties | |
| Does not apply when judges take executive actions like leading a search or personally jailing people | |
| Does not apply to prosecutors when they act as investigators or when performing purely administrative functions | |
| Qualified Immunity | Applies to most government officials |
| Protects officials from liability if their activities are within the scope of their office, in objective good faith, and don't violate a clearly established statutory or constitutional right of which a reasonable person would be aware | |
| Sovereign Immunity | A ruling government body can choose immunity from civil lawsuits or criminal prosecution |
| Under the Federal Tort Claims Act (FTCA), individuals can sue federal employees for violating the duties involved with their role, but only if negligence was a factor |
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What You'll Learn
Absolute immunity
In the United States, absolute immunity is a type of sovereign immunity that grants government officials complete immunity from criminal prosecution and civil suits for damages, as long as they are acting within the scope of their duties. This form of immunity is reserved for a limited number of officials and is intended to protect them from excessive interference with their responsibilities and potentially disabling threats of liability. It is distinct from qualified immunity, which may apply when officials violate constitutional rights or federal law.
Judges also possess absolute immunity when acting in their judicial capacity, such as hearing a case, but not when performing administrative tasks like hiring court employees. This immunity extends to non-judges acting in a judicial or quasi-judicial capacity, such as court-appointed referees. Prosecutors, on the other hand, do not enjoy absolute immunity when they act as investigators or perform administrative functions in criminal prosecutions.
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Qualified immunity
The rule can be stated as follows: Qualified immunity protects government officials if their actions do not violate clearly established rights of which a reasonable person would have known or if their actions were nonetheless objectively reasonable. The rule breaks down into two parts. One, whether the right violated was clearly established at the time the violation occurred. And, two, whether the violation was nonetheless objectively reasonable at the time. If, in resolving the first inquiry, it is determined that the right was not clearly established, qualified immunity protects the official and the inquiries end. If instead it is determined that the right was clearly established, then, under the second inquiry, qualified immunity still protects the official if their violation was objectively reasonable at the time.
In the case of Saucier v. Katz, the Supreme Court held that a ruling on a qualified immunity defence must be made early in the trial court's proceedings, as qualified immunity is a defence to stand trial, not merely a defence from liability. When there is a summary judgment motion for qualified immunity, the court should rule on the motion, even if a material issue of fact remains on the underlying claim. The Court also elaborated on a 2-part test for whether a government official is entitled to qualified immunity. First, a court must look at whether the facts indicate that a Constitutional right has been violated. If so, a court must then look at whether that right was clearly established at the time of the alleged conduct. Under the Saucier test, qualified immunity applies unless the official's conduct violated such a right.
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Sovereign immunity
However, sovereign immunity does not exempt the state from being challenged based on violations of the federal or state constitutions. For instance, in Department of Revenue v. Kuhnlein, the Florida Supreme Court ruled that sovereign immunity did not prevent plaintiffs from challenging a tax that allegedly violated the Commerce Clause of the Constitution. Furthermore, in Franchise Tax Board of California v. Hyatt, the Supreme Court held that states did not have sovereign immunity from lawsuits in other states.
The abrogation doctrine also allows Congress to abrogate state sovereign immunity pursuant to the powers granted by Section 5 of the Fourteenth Amendment, but a clear legislative statement of intent to abrogate is required. Additionally, states can expressly waive sovereign immunity, but participation in commercial enterprises where Congress subjects market participants to lawsuits is not considered an implicit waiver.
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Immunity for police officers
Police officers are protected by qualified immunity, a type of legal immunity that protects government officials from lawsuits alleging that they violated a plaintiff's rights. This means that police officers can only be sued if they violated a "clearly established" statutory or constitutional right, and if a reasonable person would have known about the right. This rule aims to balance the need to hold officials accountable for irresponsible behaviour and the need to shield them from harassment when they perform their duties reasonably.
Qualified immunity is not immunity from paying money damages but rather immunity from the costs and hassle of a trial. It only applies to suits against government officials as individuals, not suits against the government for damages caused by officials' actions. It is distinct from absolute immunity, which offers stronger protections but is more sparingly applied. Absolute immunity is a type of sovereign immunity that grants government officials complete immunity from criminal prosecution and suits for damages, so long as they are acting within the scope of their duties.
Qualified immunity was introduced in 1967 by the United States Supreme Court in Pierson v. Ray to protect police officers from financial liability. It has since been expanded and has been criticised for allowing police officers to escape accountability and civil liability for violent and abusive acts. It has been the subject of widespread protests and public interest, particularly following the high-profile police-involved deaths of George Floyd and Breonna Taylor in 2020. As a result, some states have passed laws limiting the availability of qualified immunity for police officers accused of violating civil rights.
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Immunity for prosecutors
Prosecutors have been granted absolute immunity from prosecution for their actions in their official capacity. This means that they cannot be sued for any actions related to their advocacy in the courtroom. This form of immunity is not unique to prosecutors and is also afforded to other government officials.
The Supreme Court decided in 1976 that prosecutors have absolute immunity and cannot be sued for misconduct related to their advocacy in the courtroom. This means that prosecutors cannot be sued for injuries caused by their own misconduct, such as coercing witnesses to lie, hiding evidence of innocence, or fabricating evidence of guilt, even when they have intentionally violated an individual's constitutional rights or caused a wrongful conviction.
However, the Supreme Court has also held that prosecutors do not enjoy absolute immunity when they act as investigators by engaging in activities more closely associated with police functions. The U.S. Court of Appeals for the First Circuit also held in 2019 that a prosecutor is not entitled to absolute immunity when performing purely administrative functions concerning a criminal prosecution. Additionally, the Seventh Circuit has ruled that a prosecutor is not immune from liability for fabricating evidence during pre-trial investigations and then introducing that evidence at trial.
Despite this absolute immunity, there is one exception: it does not shield prosecutors from being sued for actions that are not related to their advocacy in the courtroom. For example, the 2nd U.S. Circuit Court of Appeals recently ruled that a group of nurses could sue Suffolk County prosecutors who hid evidence and engaged in other misconduct as a political favour. In another case, a Maryland court held in 2021 that a prosecutor could be held personally accountable for withholding lab test results, which led to a man being jailed for carrying methamphetamines when he was, in fact, carrying honey.
Some scholars argue that courts should reconsider the scope of absolute immunity, particularly prosecutorial immunity, as they believe it is not supported by public policy or history, and that applying this doctrine in everyday situations is needlessly unworkable. On the other hand, others argue that prosecutorial immunity is necessary to protect public servants from frivolous lawsuits.
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Frequently asked questions
There are two main types of immunity for constitutional violations: absolute immunity and qualified immunity. A third type, sovereign immunity, is a ruling government body's option to choose immunity from civil lawsuits or criminal prosecution.
Absolute immunity is a type of immunity that applies to comparatively few types of officials, such as judges, prosecutors, jurors, legislators, and the highest executive officials of all governments. It only applies when the official is acting in their judicial capacity. Absolute immunity is complete immunity from criminal prosecution and civil suits for damages, so long as officials are acting within the scope of their duties.
Qualified immunity is a type of legal immunity that protects government officials from lawsuits alleging that the official violated a plaintiff's rights. It only allows suits where officials violated a "clearly established" statutory or constitutional right. Qualified immunity is not immunity from having to pay money damages but rather immunity from having to go through the costs of a trial.
