Section (1983)

Although section 1983 does not specifically provide for absolute IMMUNITY for any parties, the Supreme Court has deemed that some officials are immune. The Supreme Court reached this conclusion by applying the common-law principles of tort immunity that existed in the United States at the time section 1983 was enacted, assuming that Congress had intended those common-law immunities to apply without having to specifically so provide in the statute. State and regional legislators are absolutely immune, as long as they are engaged in traditional legislative functions. Local legislators, such as city council members and county commissioners, have been guaranteed absolute immunity since Bogan v. Scott-Harris, 523 U.S. 44, 118 S. Ct. 966, (1998). Previously, local officials were protected in some localities by state laws.

Judges have also been held to be absolutely immune from section 1983 actions, as long as they are performing adjudicative functions (Pierson v. Ray, 386 U.S. 547, 87 S. Ct. 1213, 18 L. Ed. 2d 288 [1967]; STUMP V. SPARKMAN, 435 U.S. 349, 98 S. Ct. 1099, 55 L. Ed. 2d 331 [1978]). Judges are considered to be performing their adjudicative functions as long as they had jurisdiction over the subject matter at the time they acted and the action was a judicial act. A minority of lower courts have extended this absolute JUDICIAL IMMUNITY to QUASI-JUDICIAL agencies, such as PAROLE boards, when they have performed functions similar to those of judges (Johnson v. Wells, 566 F.2d 1016 [5th Cir. 1978]). Absolute judicial immunity has also been extended in some cases to those judicial employees who act under the direction of the judge, such as a law clerk, court administrator, paralegal, or court reporter (Lockhart v. Hoenstine, 411 F.2d 455 [3d Cir. 1969]).

State prosecuting attorneys who are acting within the scope of their duty in presenting the state's case are also absolutely immune from suits for damages under section 1983 claims but are not absolutely immune from suits seeking prospective relief (Imbler v. Pachtman, 424 U.S. 409, 96 S. Ct. 984, 47 L. Ed. 2d 128 [1976]). Moreover, the U.S. Supreme Court has ruled that criminal prosecutors do not have absolute immunity when engaged in actions not associated with advocacy. (Kalina v. Fletcher, 522 U.S. 118, 118 S. Ct. 502, 139 L. Ed. 2d 471 [1997]). Other state officials who act in a prosecutorial role are similarly immune. The Supreme Court differentiated public defenders, however, in Polk County v. Dodson, 454 U.S. 312, 102 S. Ct. 445, 70 L. Ed. 2d 509 (1981), holding that they do not act under color of state law when performing their duties and therefore are not in need of immunity because their conduct is not covered by section 1983.

Witnesses who testify in court are absolutely immune from section 1983 actions for damages, even if the claim arises out of the witness's perjured testimony (Briscoe v. LaHue, 460 U.S. 325, 103 S. Ct. 1108, 75 L. Ed. 2d 96 [1983]).

The Supreme Court has also recognized a qualified immunity defense to section 1983 actions in certain circumstances. Most state and local officials and employees, who do not enjoy absolute immunity, are entitled to qualified immunity. Thus, a prosecuting attorney who enjoys absolute immunity in performing her prosecutorial functions may also enjoy a qualified immunity in hiring and firing subordinates. The Supreme Court has held that school board members, state mental institution administrators, law enforcement officers, prison officials, and state and local executives have qualified immunity (Wood v. Strickland, 420 U.S. 308, 95 S. Ct. 992, 43 L. Ed. 2d 214 [1975]; O'Connor v. Donaldson, 422 U.S. 563, 95 S. Ct. 2486, 45 L. Ed. 2d 396 [1975]; Pierson v. Ray, 386 U.S. 547, 87 S. Ct. 1213, 18 L. Ed. 2d 288 [1967]; Procunier v. Navarette, 434 U.S. 555, 98 S. Ct. 855, 55 L. Ed. 2d 24 [1978]; Scheuer v. Rhodes, 416 U.S. 232, 94 S. Ct. 1683, 40 L. Ed. 2d 90 [1974]). Most federal circuit courts have deemed that parole board members and prison disciplinary committee members have qualified immunity (Fowler v. Cross, 635 F.2d 476 [5th Cir. 1981]; Thompson v. Burke, 556 F.2d 231 [3d Cir. 1977]). Lower courts have extended the defense of qualified immunity to a number of other officials, such as city managers, county health administrators, and state VETERANS' AFFAIRS DEPARTMENT trust officers.

While prison guards employed by the government (local, state, or federal) are covered under qualified immunity, guards who work in for-profit prison management companies are not. This issue was raised in part because of a growing trend on the part of state prison systems to hire outside companies to manage their prisons—a move that reduces the costs of hiring permanent staff. The U.S. Supreme Court ruled in a 5–4 vote in 1997 that privately employed individuals did not warrant the same level of protection. (Richardson v. McKnight, 521 U.S. 399, 117 S. Ct. 2100, 138 L. Ed. 2d 540 (1997).)

If the defendant can raise the defense of absolute or qualified immunity, then it is his duty to plead it (Gomez v. Toledo, 446 U.S. 635, 100 S. Ct. 1920, 64 L. Ed. 2d 572 [1980]).