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Official Immunity

The doctrine of sovereign immunity has its roots in the law of feudal England and is based on the tenet that the ruler can do no wrong. Public policy grounds for granting immunity from civil lawsuits to judges and officials in the EXECUTIVE BRANCH of government survive even today. Sometimes known as official immunity, the doctrine was first supported by the U.S. Supreme Court in the 1871 case of Bradley v. Fisher, 80 U.S. 335, 20 L. Ed. 646. In Bradley, an attorney attempted to sue a judge because the judge had disbarred him. The Court held that the judge was absolutely immune from the civil suit because the suit had arisen from his judicial acts. The Court recognized the need to protect judicial independence and noted that malicious or improper actions by a judge could be remedied by IMPEACHMENT rather than by litigation.

Twenty-five years later, in Spalding v. Vilas, 161 U.S. 483, 16 S. Ct. 631, 40 L. Ed. 780 (1896), the Court expanded the doctrine to include officers of the federal Executive Branch. In Spalding, an attorney brought a DEFAMATION suit against the U.S. postmaster general, who had circulated a letter that criticized the attorney's motives in representing local postmasters in a salary dispute. At that time, the postmaster general was a member of the president's cabinet. The Court determined that the proper administration of public affairs by the Executive Branch would be seriously crippled by a threat of civil liability and granted the postmaster general absolute immunity from civil suit for discretionary acts within the scope of the postmaster's authority. Federal courts since Spalding have continued to grant absolute immunity—a complete bar to lawsuits, regardless of the official's motive in acting—to federal executive officials, so long as their actions are discretionary and within the scope of their official duties.

Members of Congress and state legislators are absolutely immune from civil lawsuits for their votes and official actions. The U.S. Supreme Court, in Bogan v. Scott-Harris, 523 U.S. 44, 118 S. Ct. 966, 140 L. Ed. 2d 79 (1998), extended absolute immunity to local legislators (e.g., city council members, and county commissioners) when they act in their legislative, rather than administrative, capacities.

Prosecutors are absolutely immune for their actions during a trial or before a GRAND JURY. However, during the investigatory phase, they are only granted qualified immunity. In Kalina v. Fletcher, 522 U.S. 118, 118 S. Ct. 502, 139 L. Ed. 2d 471 (1997), the U.S. Supreme Court ruled that a prosecutor was not entitled to absolute immunity with respect to her actions in making an allegedly false statement of fact in an AFFIDAVIT supporting an application for an arrest warrant. Policy considerations that merited absolute immunity included both the interest in protecting a prosecutor from harassing litigation that would divert his or her time and attention from official duties and the interest in enabling him or her to exercise independent judgment when deciding which suits to bring and in conducting them in court. These considerations did not apply when a prosecutor became an official witness in swearing to a statement.

However, in Conn v. Gabbert, 526 U.S. 286, 119 S. Ct. 1292, 143 L. Ed. 2d 399 (1999), the U.S. Supreme Court held that prosecutors cannot be sued for having lawyers searched or for interfering with the ability to advise a client who is appearing before a grand jury. Prosecutors have a qualified immunity in this situation, based on the two-step analysis that the courts apply to qualified-immunity issues. Under this two-part test, an Executive Branch official will be granted immunity if (1) the constitutional right that allegedly has been violated was not clearly established; and (2) the officer's conduct was "objectively reasonable" in light of the information that the officer possessed at the time of the alleged violation. The qualified-immunity test is usually employed during the early stages of a lawsuit. If the standard is met, a court will dismiss the case.

Police and prison officials may be granted qualified immunity. In Hope v. Pelzer, 536 U.S. 730, 122 S. Ct. 2508, 153 L. Ed. 2d 666 (2002), the U.S. Supreme Court held that Alabama prison officials were not eligible for qualified immunity because they were on notice that their conduct violated established law even in novel factual circumstances. The officials were on notice that tying a prisoner to a hitching post in the prison yard constituted CRUEL AND UNUSUAL PUNISHMENT under the EIGHTH AMENDMENT.Prior court rulings and federal prison policies also made clear that law banning the practice had been clearly established. Therefore, the officials were not qualified for immunity.

In Saucier v. Katz, 533 U.S. 194, 121 S. Ct. 2151, 150 L. Ed.2d 272 (2001), the U.S. Supreme Court applied the qualified-immunity test to a claim that a U.S. SECRET SERVICE agent had used excessive force in removing a protester. The Court reasserted its general belief that law officers must be given the benefit of the doubt that they acted lawfully in carrying out their day-today activities. Moreover, one of the main goals of qualified immunity is to remove the defendant from the lawsuit as quickly as possible, thereby reducing legal costs. Justice ANTHONY KENNEDY restated the principle that immunity is not a "mere defense" to liability but an "immunity from suit." Therefore, immunity issues must be resolved as early as possible. As to the first step, Kennedy agreed that the case revealed a "general proposition" that excessive force is contrary to the FOURTH AMENDMENT. However, a more specific inquiry must take place to see whether a reasonable officer "would understand that what he is doing violates that right." As to this second step, Justice Kennedy rejected the idea that because the plaintiff and the officer disputed certain facts, there could be no short-circuiting of this step. He stated that the "concern of the immunity inquiry is to

Air Force analyst A. Ernest Fitzgerald sued President Nixon for firing him after Fitzgerald disclosed to Congress huge cost overruns in the Defense Department. The Supreme Court held that the president is immune from civil lawsuits arising from official acts performed while in office.

acknowledge that reasonable mistakes can be made as to the legal constraints on particular police conduct." Officers have difficulty in assessing the amount of force that is required in a particular circumstance. If their mistake as to "what the law requires is reasonable, however, the officer is entitled to the immunity defense."

In Nixon v. Fitzgerald, 457 U.S. 731, 102 S. Ct. 2690, 73 L. Ed. 2d 349 (1982), the U.S. Supreme Court held that former U.S. president RICHARD M. NIXON was entitled to absolute immunity from liability predicated on his official acts as president. In Nixon, a weapons analyst, A. Ernest Fitzgerald, had been fired by the U.S. Air Force after he had disclosed to Congress certain cost overruns within the DEFENSE DEPARTMENT. Fitzgerald sued Nixon and two former presidential aides for wrongful retaliatory termination.

The Court emphasized the singular importance of the duties of the president, and noted that the diversion of the president's energies over concern for private lawsuits "would raise unique risks to the effective functioning of government." It also observed that the president, in view of the visibility of the office, would be an easy target for civil lawsuits. The ensuing personal vulnerability and distraction would prove harmful to the nation.

Despite the Court's grant of absolute immunity to the president for official actions, a president does not have immunity from civil lawsuits for actions that allegedly occurred before becoming president. The Court, in Clinton v. Jones, 520 U.S. 681, 117 S. Ct. 1636, 137 L. Ed. 2d 945 (1997), ruled that President BILL CLINTON had to defend himself in a sexual-harassment lawsuit that was based on his alleged actions while governor of Arkansas. Clinton had contended that the lawsuit could not proceed until he left office, but the Court disagreed. The Court pointed out that grants of official immunity are based on a functional analysis, and it would not extend immunity to actions outside of an office-holder's official capacities. Moreover, it concluded that defending the lawsuit would not divert Clinton's energies.

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