Immunities in a Civil Rights Action

By Sally A. Roberts 

          Immunity in civil rights actions is determined by federal law, not state law. Absolute immunity is a defense in damages actions, but not in suits seeking equitable relief. Judges may claim absolute immunity for acts taken in their judicial capacities and legislators for legislative acts. Insofar as a prosecutor functions as part of the judicial process, he or she is also entitled to claim absolute immunity. Other executive officials, including the police, will obtain qualified immunity in personal capacity actions if their conduct does not violate a clearly established constitutional right and was “objectively reasonable” under the circumstances. Denials of either absolute or qualified immunity are often immediately appealable prior to trial. In general, these personal defenses are not available to municipalities and other employers.

             Although 42 U.S.C. § 1983 does not on its face provide for immunity of any type, the United States Supreme Court has held that Congress intended to incorporate certain common law immunities which were compatible with the overall remedial and deterrent purposes of the statute. These immunities, both absolute and qualified, are individual ones and irrelevant to official capacity claims which are, in essence, actions against an employer entity.

             Police officers, in common with a host of other executive officials, are granted a conditional form of immunity, called qualified immunity. The landmark case of Harlow v. Fitzgerald, 457 U.S. 800 (1982) redefined the qualified immunity defense. In Harlow, the Supreme Court held that the sole inquiry in determining if an officer is entitled to qualified immunity is whether the officer knew or should have known that he was violating the plaintiff’s clearly established rights.

             On summary judgment, the judge appropriately may determine, not only the currently applicable law, but whether that law was clearly established at the time an action occurred. If the law at that time was not clearly established, an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to “know” that the law forbade conduct not previously identified as unlawful. Until this threshold immunity question is resolved, discovery should not be allowed. If the law was clearly established, the immunity defense ordinarily should fail. 

            The Second Circuit Court of Appeals recently released a decision, on September 30, 2005, Holeman v. City of New London, 2005 U.S. App. LEXIS 21213, in which qualified immunity was addressed. “Qualified immunity shields police officers acting in their official capacity from suits for damages under 42 U.S.C. § 1983, unless their actions violate clearly-established rights of which an objectively reasonable official would have known. ... Qualified immunity is thus a shield from suit, not simply liability. Saucier v. Katz, 533 U.S. 194, 200 (2001). ... As the Supreme Court explained in Saucier v. Katz, the inquiry into whether a suit against officers should go forward is a two-step process: (1) the court must determine whether the facts, taken in the light most favorable to the party asserting an injury, show a violation of a constitutional right; and (2) the court must determine whether the constitutional right was clearly established such that the contours of the right are sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Holeman, id. (Citation and internal quotations omitted.)

             Qualified immunity strikes a balance between the need to provide a means for the vindication of constitutional guarantees and the societal costs that inhere in litigation against public officials. Chief Judge Learned Hand's opinion in Gregoire v. Biddle, 177 F.2d 579 (2d Cir. 1949), is considered the classic modern case on qualified immunity. In it, he recognized that immunity for public officials is necessary because it is impossible to know whether a civil rights claim is well founded:

             “... until the case is tried, and that to submit all officials, the innocent as well as the guilty, to the burden of trial and to the inevitable danger of its outcome, would dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties. Again and again the public interest calls for action which may turn out to be founded on a mistake, in the face of which an official may later find himself hard put to it to satisfy a jury of his good faith. There must indeed be means of punishing public officers who have been truant to their duties; but that is quite another matter from exposing such as have been honestly mistaken to suit by anyone who has suffered from their errors. As is often the case, the answer must be found in a balance between the evils inevitable in either alternative. In this instance, it has been thought in the end better to leave undressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation.” Gregoire, id. at 581.

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