Thursday, July 24, 2008

Immunity as ruled by the US Supreme Court

A Big Thanks to winfred moore; for sending this to us and we want to share this with others. Here is some great case law regarding immunity.

35 PAGES IN GA==IMMUNITY CASES-MY DOCS-BLACKSTICK-ICE
Supreme Court's views as to application or applicability of doctrine of qualified immunity in action under 42 USCS § 1983, or in Bivens action, seeking damages for alleged civil rights violations. 116 L Ed 2d 965.

QUALIFIED IMMUNITY-MEMO

TITLE 69. CIVIL RIGHTS
III. LIABILITY AND REMEDIES FOR INFRINGEMENT
(B) UNDER FEDERAL LAW
2. Under Federal Civil Rights Legislation, In General.

69 L Ed Digest §32
Public defenders are not immune from liability under 42 USCS § 1983 for intentional misconduct, under color of state law, by virtue of alleged conspiratorial action with state officials that deprives their clients of federal rights. Tower v Glover, 467 US 914, 104 S Ct 2820, 81 L Ed 2d 758

§ 32 sovereign, governmental, or official immunity.

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CASE-NOTES:


The Civil Rights Statutes (8 USCS §§ 43, 47 (3)), which provide a civil remedy against those who, under color of state law, deprive, or conspire to deprive, a person of rights, privileges, or immunities secured by the Federal Constitution do not abolish the ancient rule under which legislators are immune from liability for acts done within the sphere of legislative activity. Hence no cause of action is stated by a complaint in an action to recover damages under these statutes in which it is alleged that the defendants, members of a state legislative committee constituted to inquire into un-American activities, summoned plaintiff to appear before them at a hearing, initiated contempt proceedings, and did other acts for the purpose of intimidating and silencing him and deterring him from effectively exercising his constitutional rights, such as the right of free speech and to petition the legislature for redress of grievances. (Douglas, J., dissented from this holding.) Tenney v Brandhove, 341 US 367, 71 S Ct 783, 95 L Ed 1019

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***
Note Distinguished in Richardson v McKnight, 521 US 399, 138 L Ed 2d 540, 117 S Ct 2100, holding that two prison guards, who were employees of private firm that managed state correctional center, were not entitled to qualified immunity from 42 USCS § 1983 suit by prisoner at center.
The common-law doctrine of immunity of judges from liability for damages for acts committed within their judicial jurisdiction is not abolished by § 1 of the Civil Rights Act of 1871 (42 USCS § 1983) which makes liable "every person" who under color of law deprives another person of his civil rights. (Douglas, J., dissented from this holding.) Pierson v Ray, 386 US 547, 87 S Ct 1213, 18 L Ed 2d 288

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***
Note Distinguished in Richardson v McKnight, 521 US 399, 138 L Ed 2d 540, 117 S Ct 2100, holding that two prison guards, who were employees of private firm that managed state correctional center, were not entitled to qualified immunity from 42 USCS § 1983 suit by prisoner at center.
Government officials, as a class, cannot be totally exempt, by virtue of some absolute immunity, from liability under the terms of 42 USCS § 1983, providing for a civil action for violation of federal rights, since the statute includes within its scope the misuse of power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law. Scheuer v Rhodes, 416 US 232, 94 S Ct 1683, 40 L Ed 2d 90

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***In determining whether public school officials are immune from liability for damages claimed under 42 USCS § 1983, providing for a civil action for violation of federal rights, because they acted in good faith in expelling high school students from school for violation of a school regulation, the appropriate test of good faith necessarily contains both objective and subjective elements; the official must himself be acting sincerely and with a belief that he is doing right, but an act violating a student's constitutional rights can be no more justified by ignorance or disregard of settled, indisputable law on the part of one entrusted with supervision of students' daily lives than by the presence of actual malice; to be entitled to a special exemption from the categorical remedial language of § 1983 in a case in which this action violated a student's constitutional rights, a school board member, who has voluntarily undertaken the task of supervising the operation of the school and the activities of the students, must be held to a standard of conduct based not only on permissible intentions, but also on knowledge of the basic unquestioned constitutional rights of his charges. (Powell, J., Burger, Ch. J., and Blackmun and Rehnquist, JJ., dissented from this holding.) Wood v Strickland, 420 US 308, 95 S Ct 992, 43 L Ed 2d 214


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***A state prosecuting attorney who acted within the scope of his duties in initiating and pursuing a criminal prosecution and in presenting the state's case is absolutely immune from a civil suit for damages for alleged deprivations of the defendant's constitutional rights under 42 USCS § 1983, which provides that every person who acts under color of state law to deprive another of a constitutional right shall be liable to the injured party in an action at law. Imbler v Pachtman, 424 US 409, 96 S Ct 984, 47 L Ed 2d 128

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*** Note Distinguished in Burns v Reed, 500 US 478, 114 L Ed 2d 547, 111 S Ct 1934, holding that, for purposes of damages liability under 42 USCS § 1983, local prosecutor was entitled to absolute immunity for participation in probable cause hearing to obtain search warrant, but to only qualified immunity for giving legal advice to police in investigative phase of criminal case; Antoine v Byers & Anderson, Inc., 508 US 429, 124 L Ed 2d 391, 113 S Ct 2167, holding that court reporter for Federal District Court was not absolutely immune from damages liability for failing to produce transcript of federal criminal trial.
A state prosecutor's absolute immunity from liability for damages under 42 USCS § 1983 for acts done in the scope of his duties in initiating and prosecuting a case, which acts allegedly deprived the accused of constitutional rights is applicable even where the prosecutor (1) knowingly used perjured testimony at the trial, (2) deliberately withheld exculpatory information, or (3) failed to make a full disclosure of all facts casting doubt upon the state's testimony. (White, Brennan, and Marshall, JJ., dissented in part from this holding.) Imbler v Pachtman, 424 US 409, 96 S Ct 984, 47 L Ed 2d 128

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***Note Distinguished in Burns v Reed, 500 US 478, 114 L Ed 2d 547, 111 S Ct 1934, holding that, for purposes of damages liability under 42 USCS § 1983, local prosecutor was entitled to absolute immunity for participation in probable cause hearing to obtain search warrant, but to only qualified immunity for giving legal advice to police in investigative phase of criminal case; Antoine v Byers & Anderson, Inc., 508 US 429, 124 L Ed 2d 391, 113 S Ct 2167, holding that court reporter for Federal District Court was not absolutely immune from damages liability for failing to produce transcript of federal criminal trial.
A prosecutor, acting within the scope of his duties in initiating and prosecuting a case, has the same absolute immunity from liability for damages under 42 USCS § 1983 for alleged violation of another's constitutional rights that a prosecutor enjoys at common law, notwithstanding that such immunity leaves the genuinely wronged defendant without civil redress against a prosecutor whose malicious or dishonest action deprives him of liberty; there is not exception to such prosecutorial immunity even where the person asserting violation of his civil rights has successfully petitioned for habeas corpus relief. Imbler v Pachtman, 424 US 409, 96 S Ct 984, 47 L Ed 2d 128

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***Note Distinguished in Burns v Reed, 500 US 478, 114 L Ed 2d 547, 111 S Ct 1934, holding that, for purposes of damages liability under 42 USCS § 1983, local prosecutor was entitled to absolute immunity for participation in probable cause hearing to obtain search warrant, but to only qualified immunity for giving legal advice to police in investigative phase of criminal case; Antoine v Byers & Anderson, Inc., 508 US 429, 124 L Ed 2d 391, 113 S Ct 2167, holding that court reporter for Federal District Court was not absolutely immune from damages liability for failing to produce transcript of federal criminal trial.
In an action under 42 USCS § 1983 against state prison officials, such officials are immune from liability as to a state prisoner's claim arising out of the officials' alleged unconstitutional interference with the state prisoner's outgoing mail, where (1) at the time of the alleged misconduct of the officials there was no clearly established First and Fourteenth Amendment right with respect to the correspondence of convicted prisoners, and (2) the prisoner's claim for relief asserted that prison officials negligently and inadvertently interfered with mail and that prison supervisory officials negligently failed to provide proper training to their subordinates. (Burger, Ch. J., and Stevens, J., dissented.) Procunier v Navarette, 434 US 555, 98 S Ct 855, 55 L Ed 2d 24

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*** Note Distinguished in Richardson v McKnight, 521 US 399, 138 L Ed 2d 540, 117 S Ct 2100, holding that two prison guards, who were employees of private firm that managed state correctional center, were not entitled to qualified immunity from 42 USCS § 1983 suit by prisoner at center.
In an action for damages under 42 USCS § 1983 a qualified immunity from damages is available to a state governor, a president of a state university, and officers and members of a state national guard; the same is true of local school board members, of the superintendent of a state hospital, and of local policemen. Procunier v Navarette, 434 US 555, 98 S Ct 855, 55 L Ed 2d 24

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In a suit brought against state prison officials for damages under 42 USCS § 1983 arising from the actions of the officials which allegedly violated federal constitutional rights of a state prisoner, the state prison officials are entitled to qualified, rather than absolute, immunity from liability; the immunity defense is unavailing to the prison officials (1) if the constitutional rights allegedly infringed by them were clearly established at the time of their challenged conduct, they knew or should have known of the rights, and they knew or should have known that their conduct violated the constitutional norms, or (2) if they acted with malicious intention to deprive the prisoner of constitutional rights or to cause him other injury. Procunier v Navarette, 434 US 555, 98 S Ct 855, 55 L Ed 2d 24

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*** "Intentional injury," contemplating that the actor intends the consequences of his conduct, is involved in the rule governing qualified immunity whereby a state official sued for damages under 42 USCS § 1983 is not immune from suit when the official acted with "malicious intention" to deprive the plaintiff of a constitutional right or to cause him "other injury." Procunier v Navarette, 434 US 555, 98 S Ct 855, 55 L Ed 2d 24

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State-law immunities do not override a cause of action under 42 USCS § 1983, which imposes civil liability on any person who deprives another of his federally protected rights. Monell v Department of Social Services, 436 US 658, 98 S Ct 2018, 56 L Ed 2d 611

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*** In the absence of congressional direction to the contrary, a higher degree of immunity from liability is not to be accorded to federal officials when sued for a constitutional violation than is accorded to state officials when sued for the identical violation under 42 USCS § 1983. Butz v Economou, 438 US 478, 98 S Ct 2894, 57 L Ed 2d 895

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*** It is untenable to draw a distinction for purposes of immunity law between suits brought against state officials under 42 USCS § 1983 and suits brought directly under the Federal Constitution against federal officials. Butz v Economou, 438 US 478, 98 S Ct 2894, 57 L Ed 2d 895

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***42 USCS § 1983 which provides a right of action against any "person" who deprives, under color of state law, another of federal civil rights, does not override the traditional sovereign immunity of the states as guaranteed by the Eleventh Amendment. Quern v Jordan, 440 US 332, 99 S Ct 1139, 59 L Ed 2d 358

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*** A state statute which grants public officials immunity from liability for any injury resulting from a parole release determination does not control a claim asserted in a state court under 42 USCS § 1983 against state officials by the survivors of an individual who was murdered by a parolee, such claim alleging that the officials, by their actions in releasing the parolee, had subjected the decedent to a deprivation of life without due process of law; conduct by persons acting under color of state law which is wrongful under 42 USCS § 1983 or 42 USCS § 1985(3) cannot be immunized by state law. Martinez v California, 444 US 277, 100 S Ct 553, 62 L Ed 2d 481

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***In an action brought against a municipality under 42 USCS § 1983 for depriving a person of federally protected rights, the municipality is not entitled to qualified immunity from liability by asserting the good faith of its officers or agents as a defense to liability under § 1983. (Powell, J., Burger, Ch. J., and Stewart and Rehnquist, JJ., dissented from this holding.) Owen v Independence, 445 US 622, 100 S Ct 1398, 63 L Ed 2d 673
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*** The applicable test for determining establishment of the qualified immunity defense to damages liability under 42 USCS § 1983 that is available to executive officers for acts performed in the course of official conduct focuses not only on whether the official had an objectively reasonable belief that his conduct was lawful, but also on whether the official himself was acting sincerely and with a belief that he was doing right. Gomez v Toledo, 446 US 635, 100 S Ct 1920, 64 L Ed 2d 572

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*** A state's highest court and its members are acting in their legislative capacity and are immune from suit under 42 USCS § 1983 with respect to the issuance of a state code of professional responsibility governing the conduct of attorneys, where the court, claiming inherent power to regulate the bar, exercises the state's entire legislative capacity with respect to regulating the bar, and the court's members are the state's legislators for the purpose of issuing the code. Supreme Court of Virginia v Consumers Union of United States, Inc., 446 US 719, 100 S Ct 1967, 64 L Ed 2d 641

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*** State legislators' common-law immunity from liability for their legislative acts extends to civil rights actions seeking declaratory or injunctive relief under 42 USCS § 1983 as well as to actions seeking damages. Supreme Court of Virginia v Consumers Union of United States, Inc., 446 US 719, 100 S Ct 1967, 64 L Ed 2d 641

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***Although the separation of powers doctrine justifies a broader privilege for Congressmen than for state legislators in criminal actions, the legislative immunity to which state legislators are entitled under 42 USCS § 1983 is equivalent to that accorded Congressmen under the Constitution. Supreme Court of Virginia v Consumers Union of United States, Inc., 446 US 719, 100 S Ct 1967, 64 L Ed 2d 641

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*** Prosecutors enjoy absolute immunity from damages liability under 42 USCS § 1983, but they are natural targets for injunctive suits under 42 USCS § 1983 since they are the state officers who are threatening to enforce and who are enforcing the law. Supreme Court of Virginia v Consumers Union of United States, Inc., 446 US 719, 100 S Ct 1967, 64 L Ed 2d 641

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***A state official claiming immunity from liability under 42 USCS § 1983 has the burden of demonstrating his entitlement thereto. Dennis v Sparks, 449 US 24, 101 S Ct 183, 66 L Ed 2d 185

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*** The decisions of the United States Supreme Court recognizing absolute immunity for judges and prosecutors from civil liability under § 1 of the 1871 Civil Rights Act (42 USCS § 1983) implicitly reject the position that the legislative history of the 1866 Civil Rights Act defines the scope of immunities for purposes of the 1871 Act. Briscoe v LaHue, 460 US 325, 103 S Ct 1108, 75 L Ed 2d 96

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*** Immunity analysis rests on functional categories, not on the status of a defendant; a police officer on the witness stand performs the same functions as any other witness and he is subject to compulsory process, takes an oath, responds to questions on direct examination and cross-examination, and may be prosecuted subsequently for perjury; to the extent that traditional reasons for witness immunity are less applicable to government witnesses, other considerations of public policy support absolute immunity for such witnesses more emphatically than for ordinary witnesses; subjecting government officials, such as police officers, to damages liability under 42 USCS § 1983 for their testimony might undermine not only their contribution to the judicial process but also the effective performance of their other public duties since § 1983 lawsuits against police officer witnesses, like lawsuits against prosecutors, could be expected with some frequency and could be very time-consuming, imposing significant burdens on the judicial system and on law-enforcement resources. (Brennan, Marshall, and Blackmun, JJ., dissented from this holding.) Briscoe v LaHue, 460 US 325, 103 S Ct 1108, 75 L Ed 2d 96

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*** There is no exception to the rule that police officers are immune from civil liability for damages under 42 USCS § 1983 for alleged violation of another's constitutional rights even where the person asserting violation of his civil rights has successfully vindicated himself in another forum, either on appeal or by collateral attack, since, in determining whether to grant post-conviction relief, the tribunal should focus solely on whether there was a fair trial under law and should not have its focus blurred by even the subconscious knowledge that a post-trial decision in favor of the accused might result in the police officer's being called upon to respond in damages; it is not for the United States Supreme Court to craft a new rule designed to enable trial judges to dismiss meritless claims before trial but to allow recovery in cases of demonstrated injustice, when an innocent plaintiff has already obtained post-conviction relief. Briscoe v LaHue, 460 US 325, 103 S Ct 1108, 75 L Ed 2d 96

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*** The English rule was that parties and witnesses were immune from subsequent damages liability for their testimony in judicial proceedings and the American rule sometimes showed a requirement that the witness's allegedly defamatory statements were relevant to the judicial proceeding, but once this threshold showing had been made, the witness had an absolute privilege; for purposes of analysis under 42 USCS § 1983, there is no material difference between the English rule and the American rule in terms of whether a police officer could be sued for alleged perjury at a criminal trial since the testimony by the officers would have received absolute protection at common law, because it was directly relevant to the criminal charges and if the testimony had not been relevant, it is unlikely that those suing under § 1983 would have stated a claim that their constitutional rights had been violated. Briscoe v LaHue, 460 US 325, 103 S Ct 1108, 75 L Ed 2d 96

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*** 42 USCS § 1983 does not abrogate the absolute immunity existing at common law, at least with respect to private witnesses, either by the language in the statute or by the legislative history; the legislative history does not support the contention that Congress intended to provide a damages remedy against police officers or any other witnesses. (Marshall and Blackmun, JJ., dissented from this holding.) Briscoe v LaHue, 460 US 325, 103 S Ct 1108, 75 L Ed 2d 96

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***Note Distinguished in Richardson v McKnight, 521 US 399, 138 L Ed 2d 540, 117 S Ct 2100, holding that two prison guards, who were employees of private firm that managed state correctional center, were not entitled to qualified immunity from 42 USCS § 1983 suit by prisoner at center.
Public defenders are not immune from liability under 42 USCS § 1983 for intentional misconduct, under color of state law, by virtue of alleged conspiratorial action with state officials that deprives their clients of federal rights. Tower v Glover, 467 US 914, 104 S Ct 2820, 81 L Ed 2d 758

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*** On its face, 42 USCS § 1983 admits no immunities, but substantive doctrines of privilege and immunity may limit the relief available in litigation under this section; § 1983 immunities are predicated upon a considered inquiry into the immunity historically accorded the relevant official at common law and the interests behind it. Tower v Glover, 467 US 914, 104 S Ct 2820, 81 L Ed 2d 758

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***The United States Supreme Court does not have a license to establish immunities from actions under 42 USCS § 1983 in the interest of what the court judges to be sound public policy, but rather, it is for Congress to determine whether § 1983 litigation has become too burdensome to state or federal institutions and, if so, what remedial action is appropriate. Tower v Glover, 467 US 914, 104 S Ct 2820, 81 L Ed 2d 758

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*** State officials do not lose their qualified immunity from suit under 42 USCS § 1983 for deprivation of federal constitutional rights merely because their conduct violates the clear command of a state administrative regulation. Davis v Scherer, 468 US 183, 104 S Ct 3012, 82 L Ed 2d 139

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***Note
Distinguished in Elder v Holloway, 510 US 510, 127 L Ed 2d 344, 114 S Ct 1019, holding that with respect to damages actions, under provisions such as 42 USCS § 1983, charging public officials with violation of federal right appellate review of Federal District Court's qualified immunity dispositions was to be conducted in light of all relevant precedents, not simply those cited to or discovered by District Court.
An official will not be held liable in damages under 42 USCS § 1983 unless the constitutional right he is alleged to have violated is clearly established at the time of the violation. Davis v Scherer, 468 US 183, 104 S Ct 3012, 82 L Ed 2d 139

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*** The same qualified immunity rules apply in suits against state officers under 42 USCS § 1983 and in suits against federal officers. Davis v Scherer, 468 US 183, 104 S Ct 3012, 82 L Ed 2d 139

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*** Unless a state has waived its Eleventh Amendment immunity or Congress has overridden it, a state cannot be sued in federal court directly in its own name regardless of the relief sought; thus, in federal civil rights actions, implementation of state policy or custom may be reached in federal court only because official-capacity actions against government employees for prospective relief are not treated as actions against the state. Kentucky v Graham, 473 US 159, 105 S Ct 3099, 87 L Ed 2d 114

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*** Given the Eleventh Amendment bar to damage actions in federal court against state officials in their official capacity, absent waiver by the state or valid congressional override, a federal civil rights action against a state police commissioner is necessarily litigated as a personal-capacity action, thus relieving the state of liability for attorneys' fees under 42 USCS § 1988. Kentucky v Graham, 473 US 159, 105 S Ct 3099, 87 L Ed 2d 114

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*** The rule that the Eleventh Amendment to the United States Constitution bars a damages action against a state in federal court, absent waiver by the state or valid congressional override, remains in effect when state officials are sued for damages in their official capacity; this is so because a judgment against a public servant in his official capacity imposes liability on the entity that he represents. Kentucky v Graham, 473 US 159, 105 S Ct 3099, 87 L Ed 2d 114

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*** In an action under 42 USCS § 1983 against a police officer whose successful request for a warrant allegedly causes an unconstitutional arrest because his complaint and supporting affidavit fail to establish probable cause, the officer is not entitled to absolute immunity from liability for damages, but is entitled only to a qualified immunity which depends on the objective reasonableness of his actions; the officer will not be immune if, on an objective basis, the application is so lacking in indicia of probable cause that no reasonably competent officer would have concluded that a warrant should issue, but immunity should be recognized if officers of reasonable competence could disagree on this issue; the officer is not shielded from damages liability on the theory that the act of applying for a warrant is per se objectively reasonable if the officer believes that the facts alleged in his affidavit are true. Malley v Briggs, 475 US 335, 106 S Ct 1092, 89 L Ed 2d 271

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***
Note Distinguished in Wyatt v Cole, 504 US 158, 118 L Ed 2d 504, 112 S Ct 1827, holding that private defendants who invoke state replevin, garnishment, and attachment statutes that are later declared unconstitutional are not entitled to qualified immunity from suit under 42 USCS § 1983.
ELEMENTS:
In resolving questions of the immunity of officials from suit for violations of constitutional rights under the Civil Rights Act of 1871 (42 USCS § 1983), the initial inquiry is whether an official claiming such immunity can point to a common-law counterpart to the privilege he asserts; if an official was accorded immunity from tort actions at common law when the Act was enacted, the court next considers whether the history or purposes of § 1983 nonetheless counsel against recognizing the same immunity in actions under that statute; thus, while the common law is consulted for guidance, it is not assumed that Congress intended to incorporate every common-law immunity into § 1983 in unaltered form. Malley v Briggs, 475 US 335, 106 S Ct 1092, 89 L Ed 2d 271

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*** In actions for violation of constitutional rights under 42 USCS § 1983, executive officers in general are normally entitled to only qualified immunity. Malley v Briggs, 475 US 335, 106 S Ct 1092, 89 L Ed 2d 271

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*** Note Distinguished in Wyatt v Cole, 504 US 158, 118 L Ed 2d 504, 112 S Ct 1827, holding that private defendants who invoke state replevin, garnishment, and attachment statutes that are later declared unconstitutional are not entitled to qualified immunity from suit under 42 USCS § 1983.
It is untenable to draw a distinction for purposes of immunity law between suits brought against state officials under 42 USCS § 1983 and suits brought directly under the Federal Constitution against federal officials. Malley v Briggs, 475 US 335, 106 S Ct 1092, 89 L Ed 2d 271

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*** In assessing the credibility of a law enforcement officer's account of the circumstances that prompted the officer's use of force against a free citizen, with respect to the citizen's claim that such force was excessive and violated the citizen's right under the Federal Constitution's Fourth Amendment to be secure against unreasonable seizures, a fact-finder may consider, along with other factors, evidence that the officer may have harbored ill-will toward the citizen against whom force was used; similarly, an officer's objective good faith that is, whether the officer could reasonably have believed that the force used did not violate the Fourth Amendment may be relevant to the availability of the qualified immunity defense to monetary liability under 42 USCS § 1983. Graham v Connor, 490 US 386, 109 S Ct 1865, 104 L Ed 2d 443

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*** A state is not a "person" within the meaning of 42 USCS § 1983 which provides that any "person" acting under color of state law in violating another's federal constitutional rights is liable to the injured party because (1) a reading of § 1983 to include a state as a person would be an awkward way of expressing an intent to subject states to liability and is not so clearly indicated that it provides a reason to depart from the understanding that statutes employing the word "person" are ordinarily construed to exclude the sovereign, (2) the language of § 1983 falls short of satisfying the ordinary rule of statutory construction that if Congress intends in a statute to alter the usual constitutional balance between the states and the Federal Government, it must make its intentions to do so unmistakably clear in the language of the statute, (3) given that a principal purpose behind the enactment of § 1983 was to provide a federal forum for civil rights claims, and that Congress did not provide a federal forum for civil rights claims against states, Congress did not intend to create under § 1983 a cause of action against states to be brought in state courts, which are precisely the courts that Congress sought to allow civil rights claimants to avoid through § 1983, (4) in enacting § 1983, Congress did not intend to override a state's common-law immunity from being sued without its consent, and (5) nothing substantial in the legislative history of § 1983 indicates that Congress intended that the word "person" in § 1983 include the States of the Union, and nothing in the legislative debates regarding § 1983 rises to the clearly expressed legislative intent necessary to permit that construction of § 1983; thus, a state is not subject to liability for damages in a § 1983 action brought in a state court. (Brennan, Marshall, Blackmun, and Stevens, JJ., dissented from this holding.) Will v Michigan Dept. of State Police, 491 US 58, 109 S Ct 2304, 105 L Ed 2d 45

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*** Note Distinguished in Hilton v South Carolina Pub. Rys. Comm'n, 502 US 197, 116 L Ed 2d 560, 112 S Ct 560, holding that Federal Employers' Liability Act (45 USCS §§ 51-60) creates cause of action, enforceable in state court, against state-owned railroad.
Although, with respect to a suit under 42 USCS § 1983 which provides that any "person" acting under color of state law in violating another's federal constitutional rights is liable to the injured party the Federal Constitution's Eleventh Amendment's bar against a suit brought against a state, in the absence of the state's waiving its immunity or Congress' exercising its power under § 5 of the Federal Constitution's Fourteenth Amendment to override that immunity, applies only to § 1983 suits brought in a federal forum, the scope of the Eleventh Amendment is a consideration in deciphering congressional intent as to the scope of the word "person" in § 1983, even with respect to actions brought against states in state courts. (Brennan, Marshall, Blackmun, and Stevens, JJ., dissented from this holding.) Will v Michigan Dept. of State Police, 491 US 58, 109 S Ct 2304, 105 L Ed 2d 45

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*** A state-law defense of sovereign immunity is not available to a school board in an action under 42 USCS § 1983 brought in a state court, where (1) the court is one of general jurisdiction, (2) the court exercises jurisdiction over tort claims by private citizens against state entities, including school boards, of the size and type of the claim at issue, and can enter judgment against such entities, (3) the court exercises jurisdiction over § 1983 actions against individual officers and is fully competent to provide the remedies that § 1983 requires, (4) the claimant has complied with all the state-law procedures for invoking the court's jurisdiction, and (5) a sovereign-immunity defense would not be available if the action were brought in a federal forum. Howlett v Rose, 496 US 356, 110 S Ct 2430, 110 L Ed 2d 332

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*** Note Distinguished in Alden v Maine, 527 US 706, 144 L Ed 2d 636, 119 S Ct 2240, holding that powers delegated to Congress under Article I of Federal Constitution do not include power to subject nonconsenting states to private suits for damages in states' own courts.
An entity with immunity from suit under the Federal Constitution's Eleventh Amendment is not a "person" within the meaning of 42 USCS § 1983; thus, a state and arms of the state, which have traditionally enjoyed Eleventh Amendment immunity, are not subject to suit under § 1983 in either federal court or state court. Howlett v Rose, 496 US 356, 110 S Ct 2430, 110 L Ed 2d 332

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*** A state court's refusal to entertain one discrete category of claims under 42 USCS § 1983 whether the question is presented in terms of a substantive rule of decision that state agencies are not subject to liability under § 1983, or in terms of a simple refusal to take jurisdiction of § 1983 actions against state agencies violates the Federal Constitution's supremacy clause (Art VI, cl 2), where the court entertains similar state-law actions against state defendants; the state's refusal to entertain such actions is not justified by the mere facts that state common law and statutory law do not make unlawful the precise conduct that § 1983 addresses, and that § 1983 actions are more likely to be frivolous than are other suits, since such asserted reasons are not the kind of neutral policy that could be a valid excuse for the state court's refusal to entertain § 1983 actions; thus, a state court cannot reject a § 1983 claim against a school board where the reason for the rejection is that the court has chosen, for substantive policy reasons, not to adjudicate other claims which might also render the school board liable. Howlett v Rose, 496 US 356, 110 S Ct 2430, 110 L Ed 2d 332

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*** A state court's holding that state governmental entities subject to liability under 42 USCS § 1983 enjoy an immunity over and above those immunities already provided in § 1983 directly violates federal law; to the extent that the state's law of sovereign immunity reflects a substantive disagreement as to the extent to which governmental entities should be held liable for their violations of the Federal Constitution, that disagreement cannot override the dictates of federal law. Howlett v Rose, 496 US 356, 110 S Ct 2430, 110 L Ed 2d 332

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*** Under 42 USCS § 1983, federal law makes governmental defendants that are not arms of the state, such as municipalities, liable for their violations of the Federal Constitution; by including municipalities within the class of "persons" subject to liability under § 1983 for violation of the Federal Constitution and laws, Congress the supreme sovereign on matters of federal law has abolished whatever vestige of the state's sovereign immunity the municipality possessed. Howlett v Rose, 496 US 356, 110 S Ct 2430, 110 L Ed 2d 332

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*** As to persons that Congress has subjected to liability under 42 USCS § 1983, individual states may not exempt such persons from federal liability by relying on such states' own common-law heritage of sovereign immunity. Howlett v Rose, 496 US 356, 110 S Ct 2430, 110 L Ed 2d 332

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*** A local prosecutor is entitled to absolute immunity from liability for damages under 42 USCS § 1983 for the prosecutor's appearance as a lawyer for the state in a probable cause hearing in which the prosecutor examines a witness and successfully supports an application for a search warrant, because (1) like witnesses, prosecutors and other lawyers were absolutely immune from damages liability at common law for making false and defamatory statements in judicial proceedings at least so long as the statements were related to the proceedings and for eliciting false and defamatory testimony from witnesses; (2) such immunity extended to any hearing before a tribunal which performed a judicial function; (3) absolute immunity is justified by concerns of policy, for (a) the prosecutor's actions in question involve the prosecutor's role as advocate for the state rather than the prosecutor's role as administrator or investigative officer, (b) appearance at a probable cause hearing is intimately associated with the judicial phase of the criminal process and is connected with the initiation and conduct of a prosecution, particularly where, as in the case at hand, the hearing occurs after arrest, and (c) absolute immunity serves the policy of protecting the judicial process, as there is a substantial likelihood of vexatious litigation that might have an untoward effect on the independence of the prosecutor; and (4) the judicial process is available as a check on prosecutorial actions at a probable cause hearing. Burns v Reed, 500 US 478, 111 S Ct 1934, 114 L Ed 2d 547

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*** For purposes of liability for damages under 42 USCS § 1983, a local prosecutor has not met his burden of showing that the relevant factors justify an extension of absolute immunity to the prosecutorial function of giving legal advice to the police in the investigative phase of a criminal case, and thus the prosecutor is entitled to only qualified immunity for giving such advice, because (1) no support has been identified in either history or American common law for extending such absolute immunity to prosecutors; (2) advising the police at the investigative phase is not so intimately associated with the judicial phase of the criminal process as to require absolute immunity; (3) even if there is some risk of burdensome litigation, such concern justifies absolute prosecutorial immunity only for actions that are connected with the prosecutor's role in judicial proceedings, not for every litigation-inducing conduct; (4) although the absence of absolute immunity may cause prosecutors to consider their advice more carefully, (a) where an official could be expected to know that the official's conduct would violate statutory or constitutional rights, the official should be made to hesitate, (b) the qualified immunity standard is sufficiently protective, and (c) it would be incongruous to allow prosecutors absolute immunity for giving legal advice, but to allow police officers only qualified immunity for following the advice; (5) absolute immunity is not so expansive as to include any action by a prosecutor in some way related to the ultimate decision whether to prosecute; and (6) although there are several checks other than civil litigation to prevent abuses of authority by prosecutors, the judicial process one of the most important checks will not necessarily restrain out-of-court activities by a prosecutor that occur prior to the initiation of a prosecution, such as the activity of providing legal advice to the police, particularly where a suspect is not eventually prosecuted. Burns v Reed, 500 US 478, 111 S Ct 1934, 114 L Ed 2d 547

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*** Although the precise contours of official immunity from liability for damages under 42 USCS § 1983 need not mirror the immunity at common law, the United States Supreme Court looks to the common law and other history for guidance, because the Supreme Court's role is not to make a freewheeling policy choice, but rather to discern Congress' likely intent in enacting § 1983; the Supreme Court does not have a license to establish immunities from § 1983 actions in the interests of what the Supreme Court judges to be sound public policy; in looking to the common law for purposes of official immunity under § 1983, it is American common law that is determinative. Burns v Reed, 500 US 478, 111 S Ct 1934, 114 L Ed 2d 547

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*** In determining whether government officials should be absolutely immune from liability for damages under 42 USCS § 1983, the concern as to the risk of vexatious litigation is not merely a generalized concern with interference with an official's duties, but rather is a concern with interference with the conduct closely related to the judicial process; absolute immunity is designed to free the judicial process from the harassment and intimidation associated with litigation. Burns v Reed, 500 US 478, 111 S Ct 1934, 114 L Ed 2d 547

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*** For purposes of determining the extent of a government official's immunity from liability for damages under 42 USCS § 1983, qualified immunity satisfies one of the principal concerns underlying the recognition of absolute immunity, where the standard for qualified immunity whether an official violated clearly established statutory or constitutional rights of which a reasonable person would have known is designed to avoid excessive disruption of government and to permit the resolution of many insubstantial claims on summary judgment; qualified immunity provides ample support to all but the plainly incompetent or those who knowingly violate the law. Burns v Reed, 500 US 478, 111 S Ct 1934, 114 L Ed 2d 547

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*** Even if a county public defender's allegations are taken as true that (1) after the public defender failed to appear for an initial call of a state judge's morning calendar, the judge ordered two police officers to seize the public defender forcibly and with excessive force and bring him into the judge's courtroom, (2) the officers by means of unreasonable force and violence removed the public defender from another courtroom and brought him into the judge's courtroom, and (3) the judge knowingly approved and ratified each of the officers' acts the judge is immune from a 42 USCS § 1983 suit for money damages, because (1) the judge's alleged actions were taken in his judicial capacity, where (a) under the state's law, a judge's direction to court officers to bring before him a person who is in the courthouse is a function normally performed by a judge, (b) the public defender, who was called into the courtroom for purposes of a pending case, was dealing with the judge in the judge's judicial capacity, (c) although a judge's direction to police officers to carry out a judicial order with excessive force is not a function normally performed by a judge, the relevant inquiry is to look to the particular act's relation to a general function normally performed by a judge, that is, the function of directing police officers to bring counsel in a pending case before the court, and (d) the fact that the judge's order was carried out by police officers does not transform his acts from "judicial" to "executive" in character, and (2) even though the judge acted in excess of his authority if he authorized and ratified the officers' alleged use of excessive force, such an action, taken in the very aid of the judge's jurisdiction over a matter before him, cannot be said to have been taken in the absence of all jurisdiction; thus, even though the United States Supreme Court for purposes of reviewing the judge's motion to dismiss the case as to him for failure to state a claim upon which relief could be granted takes the allegations of the public defender's complaint as true, the Supreme Court will grant the judge's petition for certiorari and summarily reverse a Federal Court of Appeals' judgment reversing a Federal District Court's grant of the judge's motion. (Stevens, Scalia, and Kennedy, JJ., dissented from this holding.) Mireles v Waco, 502 US 9, 112 S Ct 286, 116 L Ed 2d 9

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*** Note Distinguished in Antoine v Byers & Anderson, Inc., 508 US 429, 124 L Ed 2d 391, 113 S Ct 2167, holding that court reporter for Federal District Court was not absolutely immune from damages liability for failing to produce transcript of federal criminal trial.
State officials may be held personally liable for damages under 42 USCS § 1983 which provides that any "person" acting under color of state law in violating another's federal rights is liable to the injured party based upon actions taken in their official capacities, because (1) with respect to the United States Supreme Court's holding in Will v Michigan Dept. of State Police (1989) 491 US 58, 105 L Ed 2d 45, 109 S Ct 2304, that state officials acting in their official capacities are not "persons" subject to liability under § 1983, the phrase "acting in their official capacities" is best understood as a reference to the capacity in which a state official is sued rather than the capacity in which the official inflicts the alleged injury, (2) state officials, sued in their individual capacities, are "persons" within the meaning of § 1983, and (3) the Federal Constitution's Eleventh Amendment which bars suits in federal courts by private parties seeking to impose a liability which must be paid from public funds in a state treasury does not erect a barrier against suits to impose individual and personal liability on state officials under § 1983, since, although the Eleventh Amendment is considered in Will, which case arose from a suit in a state court, the holding in Will does not rest directly on the Eleventh Amendment; thus, state employees who are dismissed from their jobs, allegedly in violation of their federal rights, by a state official acting under color of state law may maintain against the official § 1983 suits seeking damages from the official in his or her personal capacity. Hafer v Melo, 502 US 21, 112 S Ct 358, 116 L Ed 2d 301

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*** With respect to a suit for damages under 42 USCS § 1983 which provides that any "person" acting under color of state law in violating another's federal rights is liable to the injured party brought against a state official in his or her official capacity, because the real party in interest is the governmental entity and not the named official, (1) for liability to be established, the governmental entity's policy or custom must have played a part in the violation of federal law, and (2) the only immunities available to the state official are those that the governmental entity possesses. Hafer v Melo, 502 US 21, 112 S Ct 358, 116 L Ed 2d 301

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*** State officials sued under 42 USCS § 1983 which provides that any "person" acting under color of state law in violating another's federal rights is liable to the injured party [for damages in their personal capacities fit within the statutory term "person,]" because (1) the requirement of action under color of state law means that state officials may be liable under § 1983 precisely because of their authority as state officials; and (2) the argument that only state officials' acts under color of state law that are taken outside the officials' authority or are not essential to the operation of state government can subject state officials to personal liability under § 1983
(a) ignores the United States Supreme Court's holding in a prior case that Congress enacted § 1983 to enforce provisions of the Federal Constitution's Fourteenth Amendment against those who carry a badge of authority of a state and represent it in some capacity, whether they act in accordance with their authority or misuse it, and
(b) cannot be reconciled with prior Supreme Court decisions regarding immunity of government officials otherwise personally liable for acts done in the course of their official duties, since the argued theory would absolutely immunize state officials from personal liability for acts within their authority and necessary for fulfilling governmental responsibility, where prior Supreme Court decisions do not extend absolute immunity to all state officials who engage in necessary official acts. Hafer v Melo, 502 US 21, 112 S Ct 358, 116 L Ed 2d 301

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*** With respect to 42 USCS § 1983, which provides that any "person" acting under color of state law in violating another's federal constitutional rights is liable to the injured party, (1) immunity from suit is predicated upon a considered inquiry into the immunity historically accorded the relevant state official at common law and into the interests behind the common-law immunity, and
(2) officials seeking absolute immunity must show that such immunity is justified for the governmental function at issue. Hafer v Melo, 502 US 21, 112 S Ct 358, 116 L Ed 2d 301

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*** State executive officials are not entitled to absolute immunity from suit under 42 USCS § 1983 which provides that any "person" acting under color of state law in violating another's federal constitutional rights is liable to the injured party for their official actions, where the United States Supreme Court has refused to extend absolute immunity from suit beyond a very limited class of officials including the President of the United States, legislators carrying out their legislative functions, and judges carrying out their judicial functions whose special functions or constitutional status requires complete protection from suit. Hafer v Melo, 502 US 21, 112 S Ct 358, 116 L Ed 2d 301

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***
The intent of 42 USCS § 1983 which provides that any "person" acting under color of state law in violating another's federal rights is liable to the injured party is not to override a state's immunity, under the Federal Constitution's Eleventh Amendment, from suits in a federal court, where, in § 1983, Congress failed to authorize suits against states in federal courts. Hafer v Melo, 502 US 21, 112 S Ct 358, 116 L Ed 2d 301

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*** Private defendants who invoke state replevin, garnishment, and attachment statutes that are later declared to be invalid under the Federal Constitution, are not entitled to qualified immunity from a civil rights suit under 42 USCS § 1983 for invoking the state statutes, because
(1) § 1983 creates a species of tort liability that on its face admits of no immunities, (2) although certain government officials have been accorded absolute or qualified immunity from a § 1983 suit, based on common-law immunity, the United States Supreme Court will not recognize an immunity available at common law if § 1983's history or purpose counsel against applying immunity in § 1983 actions, and
(3) even if there were sufficient common-law support to conclude that private defendants in § 1983 suits should be entitled to a defense based on good faith or probable cause, private defendants still would not be entitled to the objectively determined qualified immunity from § 1983 suits which the Supreme Court has accorded government officials, because the special policy concerns mandating qualified immunity for public officials the necessity to preserve the officials' ability to serve the public good or to insure that talented candidates are not deterred by the threat of damage suits from entering public office are not applicable to private parties, as the public interest will not be unduly impaired if private individuals, as opposed to government officials performing discretionary functions, are required to proceed to trial to resolve their legal disputes; thus, a cattle-business partner and an attorney who assists the partner in filing against the business' second partner a complaint, under a state replevin statute that is later declared to be invalid under the Federal Constitution which complaint results in the seizure by a county sheriff of certain personal property of the second partner are not entitled to qualified immunity from a suit brought under § 1983 by the second partner when the first partner refuses to comply with a state court order to return the property to the second partner. (Rehnquist, Ch. J., and Souter and Thomas, JJ., dissented from this holding.) Wyatt v Cole, 504 US 158, 112 S Ct 1827, 118 L Ed 2d 504

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*** A municipality cannot be held liable under 42 USCS § 1983 on a respondeat superior theory, but this protection against liability does not encompass immunity from suit; unlike various government officials, municipalities do not enjoy immunity from suit, either absolute or qualified, under § 1983; thus, a municipality can be sued under § 1983, but it cannot be held liable unless a municipal policy or custom caused the constitutional injury. Leatherman v Tarrant County Narcotics Intelligence & Coordination Unit, 507 US 163, 113 S Ct 1160, 122 L Ed 2d 517

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*** State prosecutors are not entitled to absolute immunity from an accused's claim seeking damages for the prosecutors' alleged fabrication, during the preliminary criminal investigation of a child's rape and murder, of evidence indicating that a bootprint was from the accused's boot, which claim is brought under 42 USCS § 1983, which provides a private right of action against a person who, under color of state law, violates another person's federal rights where during the preliminary investigation, the prosecutors allegedly were performing essentially the same investigatory functions as were police officers and had not yet convened a special grand jury to investigate the case because
(1) the fact that the accused's injuries occurred during criminal proceedings is irrelevant to the question whether the fabrication of evidence is a function protected by absolute immunity;
(2) the prosecutors were not functioning as advocates for the state, which function has been held by the United States Supreme Court to be subject to absolute immunity from a § 1983 action, but as investigators, when they were endeavoring to determine whether the bootprint was made by the accused, since (a) the prosecutors do not contend that they had probable cause to arrest the accused or to initiate judicial proceedings before they convened a special grand jury, and (b) a prosecutor is not an advocate before the prosecutor has probable cause to have anyone arrested;
(3) in the absence of any authority that supports an argument that a prosecutor's fabrication of false evidence during the preliminary investigation of an unsolved crime was immune from liability at common law in 1871, when § 1983 was enacted, or at any prior date, such fabrication remains protected by only qualified immunity;
(4) it would be anomalous to grant prosecutors only qualified immunity when offering legal advice to police about an unarrested suspect, as the Supreme Court has done in a prior case, but to endow prosecutors with absolute immunity when conducting investigative work themselves in order to decide whether a suspect may be arrested; (5) the prosecutors' calling of a grand jury to consider the evidence produced by the prosecutors' investigative work does not retroactively transform that work from the administrative into the prosecutorial; and (6) when the functions of prosecutors and detectives are the same, the immunity that protects the two parties is also the same, where, if the police, under the guidance of the prosecutors, had solicited the allegedly fabricated testimony, the police would not be entitled to anything more than qualified immunity. (Kennedy, J., Rehnquist, Ch. J., and White and Souter, JJ., dissented from this holding.) Buckley v Fitzsimmons, 509 US 259, 113 S Ct 2606, 125 L Ed 2d 209

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*** A state prosecutor is not entitled to absolute immunity from an accused's claim seeking damages for the prosecutor's allegedly false statements at a press conference announcing the return of an indictment against the accused concerning a rape and murder, which claim is brought under 42 USCS § 1983 which provides a private right of action against a person who, under color of state law, violates another person's federal rights because (1) the fact that the accused's injuries occurred during criminal proceedings is irrelevant to the question whether the press conference is a function protected by absolute immunity; (2) when § 1983 was enacted in 1871, there did not exist a common-law absolute immunity for a prosecutor's out-of-court statements to the press; (3) at the press conference, the prosecutor did not act in the prosecutor's role as an advocate for the state, which role has been held by the United States Supreme Court to be entitled to absolute immunity from a § 1983 action, since (a) the conduct of a press conference does not involve the initiation of a prosecution, the presentation of a state's case in court, or the action preparatory for these functions, and (b) with respect to such a press conference, a prosecutor is in no different position from that of other executive officials who deal with the press, and for whom qualified immunity is the norm; and (4) although the prosecutor argues that policy considerations support extending absolute immunity to statements made to the press, (a) the Supreme Court does not have a license to establish immunities from § 1983 actions in the purported interests of public policy, (b) the presumption is that qualified rather than absolute immunity is sufficient to protect government officials in the exercise of their duties, and (c) even if policy considerations allowed the court to carve out new absolute immunities to liability under § 1983, there is little reason to suppose that qualified immunity would provide adequate protection to prosecutors in their provision of legal advice to the police where the Supreme Court has held in a prior case that such conduct is entitled to only qualified immunity yet would fail to provide sufficient protection in the context of a press conference. Buckley v Fitzsimmons, 509 US 259, 113 S Ct 2606, 125 L Ed 2d 209


All Federal & State Citing Cases____PRIVATE RIGHT OF ACTION:

*** With respect to being sued under 42 USCS § 1983, which provides a private right of action against a person who, under color of state law, violates another person's federal rights, most public officials are entitled to only qualified immunity that is, such officials are not subject to damages liability for the performance of their discretionary functions when their conduct does not violate clearly established federal statutory or constitutional rights of which a reasonable person would have known which immunity, in most cases, is sufficient to protect (1) officials who are required to exercise their discretion, and (2) the related public interest in encouraging the vigorous exercise of official authority. Buckley v Fitzsimmons, 509 US 259, 113 S Ct 2606, 125 L Ed 2d 209

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*** Acts which are undertaken by a prosecutor in preparing for the initiation of judicial proceedings or for trial and occur in the course of the prosecutor's rule as an advocate for the state are entitled to the protections of absolute immunity from a suit seeking damages under 42 USCS § 1983, which provides a private right of action against a person who, under color of state law, violates another person's federal rights; such acts by a prosecutor include (1) the professional evaluation of evidence assembled by the police, and (2) appropriate preparation for presentation of the evidence at trial and before a grand jury after a decision to seek an indictment has been made. Buckley v Fitzsimmons, 509 US 259, 113 S Ct 2606, 125 L Ed 2d 209

All Federal & State Citing Cases PRIVATE RIGHT OF ACTION:

*** When a prosecutor functions as an administrator rather than as an officer of the court, the prosecutor is entitled to only qualified immunity from a suit seeking damages under 42 USCS § 1983, which provides a private right of action against a person who, under color of state law, violates another person's federal rights, qualified immunity representing the norm for executive officers, and there being a difference between an advocate's role which the United States Supreme Court has indicated to be subject to absolute immunity in evaluating evidence and interviewing witnesses as a prosecutor prepares for trial and a detective's role which the Supreme Court has indicated to be subject to only qualified immunity in searching for clues and corroboration that might give probable cause to recommend that a criminal suspect be arrested; a prosecutor who plans and executes a raid on a suspected weapons cache has no greater claim to complete immunity than do police officers allegedly acting under the prosecutor's direction, where, when a prosecutor performs the investigative functions normally performed by a detective or police officer, it is neither appropriate nor justifiable that for the same act, immunity should protect the one and not the other; a determination of probable cause to arrest a person does not guarantee a prosecutor absolute immunity from liability for all actions taken by the prosecutor after such a determination, because, even after such a determination, a prosecutor may engage in "police investigative work" that is entitled to only qualified immunity. (Kennedy, J., Rehnquist, Ch. J., and White and Souter, JJ., dissented in part from this holding.) Buckley v Fitzsimmons, 509 US 259, 113 S Ct 2606, 125 L Ed 2d 209

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*** Given that the doctrine of qualified immunity as applied to damages actions, under provisions such as 42 USCS § 1983, charging public officials with violation of a federal right shields such officials from such damages actions unless the officials' conduct was unreasonable in light of clearly established law, appellate review of a Federal District Court's qualified immunity dispositions is to be conducted in light of all relevant precedents, not simply those cited to or discovered by the District Court, because (1) the central purpose of affording such qualified immunity is to protect public officials from undue interference with their duties and from potentially disabling threats of liability; (2) a rule excluding precedents not mentioned in the District Court (a) would not aid this objective, in that the rule's operation would be unpredictable in advance of the District Court's adjudication, (b) would not further the interests on the other side of the balance in deterring public officials' unlawful actions and in compensating victims of such conduct, (c) would simply release defendants due to shortages in counsel's or the court's legal research or briefing, (d) could occasion appellate affirmation of incorrect legal results, and (e) could place defense counsel in a trying situation; (3) whether an asserted federal right was clearly established at a particular time, so that a public official who allegedly violated the right has no qualified immunity from suit, presents a question of law, not one of legal facts; (4) that question of law, like the generality of such questions, must be resolved de novo on appeal; and (5) a court engaging in review of a qualified immunity judgment should therefore use the court's full knowledge of the court's own and other relevant precedents. Elder v Holloway, 510 US 510, 114 S Ct 1019, 127 L Ed 2d 344

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*** In a 42 USCS § 1983 suit for damages and other relief against defendants including some individual officials, the individual defendants' qualified immunity turns on whether they violated clearly established federal law. Swint v Chambers County Comm'n, 514 US 35, 115 S Ct 1203, 131 L Ed 2d 60

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*** There is no congressional waiver of the Federal Government's sovereign immunity against awards of monetary damages for violations of § 504(a) of the Rehabilitation Act of 1973 (29 USCS § 794(a)), which prohibits discrimination on the basis of disability under any program or activity conducted by any executive agency of the Federal Government, because (1) the clarity of expression necessary to establish such a waiver is lacking in the text of § 504(a) and § 505(a)(2) of the Rehabilitation Act (29 USCS § 794a(a)(2)), which in providing that the remedies available for violations of Title VI of the Civil Rights Act of 1964 (42 USCS §§ 2000d et seq.), including monetary damages, are available for violations of § 504(a) "by any recipient of Federal assistance or Federal provider of such assistance" (a) makes no mention of programs or activities conducted by any executive agency, and (b) thus indicates congressional intent to treat federal executive agencies differently from other § 504(a) defendants for purposes of remedies; (2) the broad language of § 505(a)(1) of the Rehabilitation Act (29 USCS § 794a(a)(1)), in which Congress expressly waived sovereign immunity against certain remedies, including monetary damages, for violations of § 501 of the Rehabilitation Act (29 USCS § 791), suggests by comparison with § 505(a)(2) that Congress did not intend to treat all § 504(a) defendants alike with regard to remedies; (3) both 42 USCS § 1981a(a)(2), the provision of the Civil Rights Act of 1991 which makes damages available for certain violations of § 501, and § 505(b) of the Rehabilitation Act (29 USCS § 794a(b)), the attorneys' fees provision of the Rehabilitation Act, illustrate Congress' ability to craft a clear waiver of the government's sovereign immunity against particular remedies for violations of the Rehabilitation Act; (4) Congress is free to waive the government's sovereign immunity against liability without waiving its immunity from monetary damages awards; and (5) § 1003 of the Rehabilitation Act Amendments of 1986 (42 USCS § 2000d-7) which provides that remedies are available in a suit against a state for a violation of § 504 to the same extent as remedies are available for such a violation in a suit against any public or private entity other than the state (a) is susceptible of at least two interpretations other than one in which the public entities to which § 1003 refers would include federal executive agencies, which thus would be subject to the same remedies under § 504(a), including monetary damages, as are private entities, and (b) hence § 1003 is not so free from ambiguity that it can be concluded that Congress intended to subject the government to awards of monetary damages for violations of § 504(a). (Stevens and Breyer, JJ., dissented from this holding.) Lane v Pe na, 518 US 187, 116 S Ct 2092, 135 L Ed 2d 486

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*** The object of the "clearly established" rule for the qualified immunity of a public official from civil liability, under 42 USCS § 1983 or under Bivens v Six Unknown Named Agents of Federal Bureau of Narcotics (1971) 403 US 388, 29 L Ed 2d 619, 91 S Ct 1999, for deprivation of a federal constitutional right is not different from the requirement of fair warning as that requirement relates to whether law has been made sufficiently specific, for the purpose of validly applying 18 USCS § 242 to impose criminal liability for deprivation of a federal constitutional right; the fact that one has a civil-law role and the other a criminal-law role is of no significance, as both serve the same objective; in effect, the qualified immunity test is simply the adaptation of the fair warning standard to give officials and, ultimately, governments the same protection from civil liability and its consequences that individuals have traditionally possessed in the face of vague criminal statutes; thus, to require something clearer than "clearly established" is to call for something beyond "fair warning." United States v Lanier, 520 US 259, 117 S Ct 1219, 137 L Ed 2d 432

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*** With respect to the "clearly established" rule for qualified immunity, civil liability may be imposed on a public officer, under 42 USCS § 1983 or under Bivens v Six Unknown Named Agents of Federal Bureau of Narcotics (1971) 403 US 388, 29 L Ed 2d 619, 91 S Ct 1999, for deprivation of a federal constitutional right if, but only if, in the light of pre-existing law the unlawfulness under the Federal Constitution is apparent. United States v Lanier, 520 US 259, 117 S Ct 1219, 137 L Ed 2d 432

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*** Even if there has never been a 42 USCS § 1983 case accusing welfare officials of selling foster children into slavery, it does not follow that if such a case arose, the officials would be immune from damages under § 1983 or criminal liability under 18 USCS § 242. United States v Lanier, 520 US 259, 117 S Ct 1219, 137 L Ed 2d 432

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*** While the defense of qualified immunity has its source in 42 USCS § 1983 a federal statute the ultimate purpose of such defense is to protect the state and its officials from overenforcement of federal rights. Johnson v Fankell, 520 US 911, 117 S Ct 1800, 138 L Ed 2d 108

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*** A qualified immunity defense exists for both federal officials sued under the implied cause of action asserted in Bivens v Six Unknown Named Agents of Federal Bureau of Narcotics (1971) 403 US 388, 29 L Ed 2d 619, 91 S Ct 1999, and state officials sued under 42 USCS § 1983; in both situations, officials performing discretionary functions generally are shielded from liability for civil damages insofar as the officials' conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known; the qualified immunity defense is valuable to officials asserting it because (1) if such defense is found applicable at any stage of the proceedings, the defense determines the outcome of the litigation by shielding the official from damages liability, (2) when the complaint fails to allege a violation of clearly established law or when discovery fails to uncover evidence sufficient to create a genuine issue whether the defendant committed such a violation, the qualified immunity defense provides the defendant with an immunity from the burdens of trial as well as a defense to liability, and (3) when a case can be dismissed on the pleadings or in an early pretrial stage, the qualified immunity defense provides officials with protection from the burdens of broad-ranging discovery. Johnson v Fankell, 520 US 911, 117 S Ct 1800, 138 L Ed 2d 108

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*** Even though state prison guards who work directly for the government have been extended a qualified immunity from suit under 42 USCS § 1983, two prison guards, who are employees of a private firm that manages a state correctional center, are not entitled to qualified immunity from a § 1983 suit by a prisoner at the center, because in the context of the case at hand, in which a private firm, which is systematically organized to assume the major lengthy administrative task of managing an institution with limited direct supervision by the government, undertakes that task for profit and potentially in competition with other firms an examination of history and of the purposes underlying government-employee immunity reveal nothing special enough about the job itself that would warrant providing these private prison guards with a governmental immunity, for (1) history does not reveal a firmly rooted tradition of immunity applicable to privately employed prison guards; and (2) as to underlying purposes, (a) a purely functional approach as to whether qualified immunity is available at all would present difficulties, (b) the most important special government immunity-producing concern unwarranted timidity is less likely to be present, or at least is not special, where, as in the case at hand, the large, multistate private firm that operates the prison is subject to ordinary marketplace pressures, while government employees typically act within a different system, (c) under the state's prison-privatization laws, such privatization helps to insure that talented candidates are not deterred by the threat of damages suits, and (d) under the circumstances, the threat of distracting private prison guards from their duties is not enough virtually by itself to justify providing an immunity. (Scalia, J., Rehnquist, Ch. J., and Kennedy and Thomas, JJ., dissented from this holding.) Richardson v McKnight, 521 US 399, 117 S Ct 2100, 138 L Ed 2d 540

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*** The risk of distraction cannot be sufficient grounds alone for a qualified immunity from suit under 42 USCS § 1983, because the United States Supreme Court's qualified-immunity cases do not contemplate the complete elimination of lawsuit-based distractions. Richardson v McKnight, 521 US 399, 117 S Ct 2100, 138 L Ed 2d 540

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*** Private actors are not automatically extended a governmental immunity from suit under 42 USCS § 1983 that is, immunity does not automatically follow § 1983 liability. Richardson v McKnight, 521 US 399, 117 S Ct 2100, 138 L Ed 2d 540

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*** The conduct of a county prosecuting attorney in making allegedly false statements of fact in a certification for determination of probable cause a document that summarizes the evidence supporting an application for an arrest warrant is not protected by the doctrine of absolute prosecutorial immunity, where (1) although state law, in compliance with the command of the Federal Constitution's Fourth Amendment, requires an arrest warrant to be supported by either an affidavit or sworn testimony establishing the grounds for issuing the warrant, neither federal nor state law makes it necessary for the prosecutor to make such certification, (2) even if the prosecutor may be following a practice that has been routinely employed by the prosecutor's colleagues and predecessors, the practice is not prevalent in other parts of the country and is not mandated by law in the county, (3) the prosecutor, in making the certification, thus performs a function of a witness rather than an advocate, and (4) denying the prosecutor absolute immunity will not have a chilling effect on prosecutors in the administration of justice; thus, 42 USCS § 1983 may, under some circumstances, provide a damages remedy against such a prosecutor insofar as the prosecutor performs the function of a complaining witness. Kalina v Fletcher, 522 US 118, 118 S Ct 502, 139 L Ed 2d 471

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*** Local legislators are absolutely immune from suit under 42 USCS § 1983 for their legislative activities, as (1) the common law at the time that § 1983 was enacted deemed local legislators to be absolutely immune from suit for such activities; (2) the rationales for according absolute immunity to federal, state, and regional legislators apply with equal force to local legislators, for (a) regardless of the level of government, the exercise of legislative discretion should not be inhibited by judicial interference or distorted by the fear of personal liability, (b) the time and energy required to defend against a lawsuit are of particular concern at the local level, where the part-time citizen-legislator remains commonplace, (c) the threat of liability may significantly deter service in local government, where prestige and pecuniary rewards may pale in comparison to the threat of civil liability, and (d) some deterrents to legislative abuse may be greater at the local level than at other levels of government. Bogan v Scott-Harris, 523 US 44, 118 S Ct 966, 140 L Ed 2d 79

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*** With respect to a city ordinance eliminating a city agency and the position of the agency's administrator pursuant to a proposed city budget, the actions of the city council's vice president in voting for the ordinance and the actions of the city's mayor in introducing the budget and signing the ordinance into law are protected by absolute immunity from civil liability under 42 USCS § 1983, regardless of the subjective intent motivating such actions, where (1) the vice president's actions are legislative in form; (2) the mayor's actions also are formally legislative, even though the mayor is an executive official, as such actions are integral steps in the legislative process; and (3) the ordinance is legislative in substance, as (a) the ordinance reflects a discretionary policymaking decision implicating the city's budgetary priorities and the services provided to the city's constituents, (b) the ordinance involves the termination of a position, which, unlike the hiring or firing of a particular employee, may have prospective implications that reach well beyond the particular occupant of the office, and (c) the city council, in eliminating the agency, governs in a field where legislators traditionally have power to act. Bogan v Scott-Harris, 523 US 44, 118 S Ct 966, 140 L Ed 2d 79

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*** A prisoner alleging in a suit under 42 USCS § 1983 that a corrections officer retaliated for the prisoner's exercise of free speech rights under the Federal Constitution's First Amendment by deliberately misdirecting the prisoner's belongings that were to be sent to a facility to which the prisoner had been transferred is not required to adduce clear and convincing evidence of improper motive in order to defeat the officer's summary judgment motion, because (1) it would not be unfair to hold the officer accountable for actions that the officer knew, or should have known, violated the prisoner's constitutional rights; (2) the proper balance does not justify a judicial revision of the law to bar claims that depend on proof of a government official's motive; (3) existing law already prevents the narrow element of unconstitutional motive from automatically carrying a plaintiff to trial, where (a) the qualified immunity standard for government officials eliminates all motive-based claims in which the official's conduct does not violate clearly established law, (b) even when the general rule has long been clearly established, the substantive legal doctrine on which a plaintiff relies may facilitate summary judgment, as (i) there may be doubt as to the illegality of the official's particular conduct, and (ii) at least with certain types of claims, proof of an improper motive is not sufficient, without evidence of causation, to establish a constitutional violation, and (c) various procedural mechanisms already enable trial judges to weed out baseless claims that feature a subjective element; (4) without precedential grounding, a change in the burden of proof for an entire category of claims would stray from the traditional limits on judicial authority, where (a) neither the text of § 1983 or any other federal statute, nor the Federal Rules of Civil Procedure, provides any support for imposing the "clear-and-convincing" burden of proof on plaintiffs either at the summary judgment stage or at trial, (b) such a burden lacks any common-law pedigree and undermines the purpose of § 1983 to provide a remedy for the violation of federal rights, (c) the United States Supreme Court has consistently declined similar invitations to revise established rules that are separate from the qualified immunity defense for reasons that apply with equal force to the imposition of a clear-and-convincing burden of proof in cases alleging unconstitutional motive, (d) questions regarding pleading, discovery, and summary judgment are most frequently and most effectively resolved either by the rule-making process or the legislative process, and (e) even if it is assumed that a perceived problem with suits by inmates could justify the creation of new rules by federal judges, Congress has already fashioned special rules to cover these cases in the Prison Litigation Reform Act, 110 Stat 1321; (5) the statute draws no distinction between constitutional claims that require proof of an improper motive and those that do not; and (6) given the wide variety of civil rights and "constitutional tort" claims that trial judges confront, broad discretion in the management of factfinding may be more useful and equitable to all parties than a categorical clear-and-convincing requirement. (Rehnquist, Ch. J., and O'Connor, Scalia, and Thomas, JJ., dissented from this holding.) Crawford-El v Britton, 523 US 574, 118 S Ct 1584, 140 L Ed 2d 759

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To resolve cases in which the defense of qualified immunity is raised to an action under 42 USCS § 1983 for the deprivation of a federal constitutional right, the better approach, rather than addressing first the qualified immunity issue, is to determine first whether the plaintiff has alleged a deprivation of a constitutional right at all; normally, it is only then that a court should ask, with respect to qualified immunity, whether the right allegedly implicated was clearly established at the time of the events in question. County of Sacramento v Lewis, 523 US 833, 118 S Ct 1708, 140 L Ed 2d 1043

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In order for a plaintiff to prevail in a 42 USCS § 1983 action for civil damages from a government official performing discretionary functions, the defense of qualified immunity that the United States Supreme Court's cases have recognized requires that the official be shown to have violated clearly established statutory or constitutional rights of which a reasonable person would have known; thus, a court must (1) determine whether the plaintiff has alleged the deprivation of an actual constitutional right at all, and (2) if so, proceed to determine whether that right was clearly established at the time of the alleged violation; also, the Supreme Court in holding that the right, under the Federal Constitution's Fourteenth Amendment, that has been asserted by an attorney in a § 1983 claim against two county prosecutors was not violated in the circumstances of the case at hand will pretermit the question whether such a right was "clearly established" as of a given day. Conn v Gabbert, 526 US 286, 119 S Ct 1292, 143 L Ed 2d 399

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Even though a "media ride-along" in which representatives of a newspaper accompanied a team of federal and county police officers during an April 16, 1992, attempt to execute arrest warrants in a private home violated the Federal Constitution's Fourth Amendment, the officers are entitled to the defense of qualified immunity from damages liability, under Bivens v Six Unknown Named Agents of Federal Bureau of Narcotics (1971) 403 US 388, 29 L Ed 2d 619, 91 S Ct 1999, and under 42 USCS § 1983, to the home's residents for the violation, because the Fourth Amendment right in question was not clearly established on the date of the ride-along, as (1) even though it was clearly established that the Fourth Amendment's protections applied to the actions of police, it was not unreasonable for the officers to have believed that bringing media observers along during the execution of the warrants (even in a home) would be lawful, for (a) the officers had warrants, and (b) accurate media coverage of police activities serves an important public purpose; (2) media ride-alongs of one sort or another had apparently become a common police practice; (3) in April 1992, (a) there were no judicial opinions holding that this practice became unlawful when a home was entered, and (b) even some more general law as to third parties accompanying police on entries into homes was not clearly established in the pertinent jurisdiction; (4) the federal officers relied on a policy which explicitly contemplated that media representatives who engaged in ride-alongs might enter private homes with cameras as part of fugitive apprehension arrests; (5) the county sheriff's department also had a ride-along program which did not expressly prohibit media representatives' entry into private homes; and (6) given the undeveloped state of the law, the officers could not be expected to predict the future course of constitutional law. (Stevens, J., dissented from this holding.) Wilson v Layne, 526 US 603, 119 S Ct 1692, 143 L Ed 2d 818

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Government officials performing discretionary functions generally are (1) granted a qualified immunity, and (2) shielded from liability for civil damages insofar as the officials' conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known; the qualified immunity analysis is identical for a cause of action under either Bivens v Six Unknown Named Agents of Federal Bureau of Narcotics (1971) 403 US 388, 29 L Ed 2d 619, 91 S Ct 1999, or 42 USCS § 1983; a court evaluating a claim of qualified immunity must (1) determine whether the plaintiff has alleged the deprivation of an actual constitutional right at all, and (2) if so, proceed to determine whether that right was clearly established at the time of the alleged violation; under the "clearly established" test, the question whether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the objective legal reasonableness of the action, assessed in light of the legal rules that were clearly established at the time that the action was taken; for such purposes, the contours of the right must be sufficiently clear that a reasonable official would understand that what the official is doing violates that right; this is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be apparent; also, the right allegedly violated must be defined at the appropriate level of specificity before a court can determine if the right was clearly established. Wilson v Layne, 526 US 603, 119 S Ct 1692, 143 L Ed 2d 818

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The threshold inquiry which a court must undertake in a qualified-immunity analysis with respect to a plaintiff's 42 USCS § 1983 claim for damages is whether the plaintiff's allegations, if true, establish a federal constitutional violation. Hope v Pelzer (US) 122 S Ct 2508, 153 L Ed 2d 666

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With respect to damages claims against state officers under 42 USCS § 1983, qualified immunity under the standard as to whether the officers have violated clearly established federal statutory or constitutional rights of which a reasonable person would have known operates to insure that before the officers are subjected to suit, the officers are on notice their conduct is unlawful.
For a federal constitutional right to be clearly established, the right's contours must be sufficiently clear that a reasonable official would understand that what the official is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but in the light of pre-existing law, the unlawfulness must be apparent. Moreover, officers sued in a civil action for damages under § 1983 have the same right to fair notice as do criminal defendants charged with the offense defined in 18 USCS § 242, which makes it a crime for a state official to act willfully and under color of law to deprive a person of rights protected by the Federal Constitution. For such purposes, officials can be on notice that their conduct violates established law even in novel factual circumstances, as even though earlier cases involving "fundamentally similar" or "materially similar" facts can provide especially strong support for a conclusion that the law is clearly established such cases are not necessary to such a finding. Also, in applying the objective qualified-immunity test of what a reasonable officer would understand, the significance of federal judicial precedent is a function in part of the federal judiciary's structure. Hope v Pelzer (US) 122 S Ct 2508, 153 L Ed 2d 666

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Go to the starting of the Casenotes

RESEARCH REFERENCES:


15 Am Jur 2d, Civil Rights §§ 99, 102, 105-109
Supreme Court's construction of Civil Rights Act of 1871 (42 USCS § 1983) providing private right of action for violation of federal rights. 43 L Ed 2d 833.
Supreme Court's views as to who is "person" under civil rights statute (42 USCS § 1983) providing private right of action for violation of federal rights. 105 L Ed 2d 721.
Supreme Court's views as to judge's liability for damages. 116 L Ed 2d 947.
Supreme Court's views as to application or applicability of doctrine of qualified immunity in action under 42 USCS § 1983, or in Bivens action, seeking damages for alleged civil rights violations. 116 L Ed 2d 965.
When is prosecutor entitled to absolute immunity from civil suit for damages under 42 USCS § 1983: post-Imbler cases. 67 ALR Fed 640.
Availability of qualified immunity defense to private parties in action under 42 USCS § 1983. 95 ALR Fed 82.

CROSS REFERENCES:


Immunity of judges, generally, see Judges @ 14-17.

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2 comments:

Cruel Death said...

I too am a victim of the system, although now fully exonerated, there remain 3 children that are continuing to be victimized. I am taking action - what was done to us is a classic case of malicious prosecution and the Appeals Judge said as much in his decision to throw my case out once the prosecution completed their presentation. I never had to get on the defense stand! The Judge was noticeably disturbed that this case had gotten as far as it had. I am fortunate though; the Lord continued to help me fund a strong defense. When the money was gone, more found its way to meet the need.

I am not resting though and I am currently researching the process of a tort claim against all in the system that helped to continue DSS's funding pursuit. It’s simply not enough to know that I was vindicated – my heart breaks for the thousands that cannot afford to buy justice. We need help in ensuring that we make a solid case, any ideas?

Buck Master said...

After 18 years of fighting judicial corruption in "civi" courts, I conclude that federal actors are even more corrupt by turning a blind eye under pretext of federalism and immunity, found nowhere in our Constitution and expressly outlawed by the Nobility Clause [now call "honorables" and Prohibition of pardon for treason.