In some situations an individual cannot be sued because she or he has "immunity." This comment provides a brief and incomplete educational overview of the complex topic of official immunity. Always consult an experienced attorney in all injury and litigation situations.
The statement, "the king can do no wrong," dates from at least 1200 and was famously quoted by William Blackstone in his "Commentaries on the Laws of England" published in 1765-1769. However, Blackstone indicated that the king could consent to being sued; the king's ministers could be sued for acting beyond their legislative authority; and the king could be sued for violating the English constitution. From Blackstone, sovereign immunity became part of U.S. law. Applicable sovereign immunity is an initial question when one attempts to sue governmental bodies.
After the collapse of Madoff's Ponzi scheme, defrauded investors attempted to hold the U.S. liable for the failure of the Securities and Exchange Commission (SEC) to detect the fraud. The lawsuit was brought under the Federal Tort Claims Act (FTCA) (28 U.S. C. Sec 1346). This legislation permits private lawsuits against the federal government in certain circumstances and amounts to a limited waiver (giving up) of sovereign immunity. The legislation resulted from the 1945 crash of a B-25 bomber into the Empire State Building. Many states have similar legislation.
However, the FTCA does not permit lawsuits based upon the performance or non-performance of a "discretionary function or duty." This provision resulted in the dismissal of the Madoff investors' lawsuit in 2013 by the federal Court of Appeals for the Second Circuit (Molchatsky v. United States). The opinion did express sympathy for the Plaintiff's predicament and antipathy for the SEC's conduct. Procedurally, under the FTCA an injured party must present a written claim to the federal agency in question within two years of the accrued claim or be prevented from asserting it. Federal Tort Claims Act litigation is too complex to discuss in detail in this brief comment.
Certain categories of individuals have absolute immunity from civil lawsuits and liability for damages. These commonly include judges, prosecutors, witnesses, and legislators acting legislatively. What is said in the courtroom or in Congress cannot be the basis for recovery in a defamation lawsuit. Occasionally a successful lawsuit is brought for comments made to the news media outside of those venues. Of course, perjury while under oath is a crime. A common defense in a murder trial is to question the character and motives of the victim. Frequently family members of the victim find this tactic offensive but any successful legal recourse is unlikely.
However, in many situations immunity is not absolute but qualified.
Qualified immunity shields officials from civil damages unless the official violated "clearly established" legal rights. This is a high barrier to recovery. The plaintiff (one suing) must establish facts that clearly show a violation. Then, the plaintiff must additionally demonstrate that the conduct in question was not "objectively reasonable." That is, all reasonable officials would know that the particular conduct violated legal rights. Still, the defendant (one being sued) may be able to prove "extraordinary circumstances" showing that the official neither knew nor should have known the legal standard. Relying on the advice of counsel often provides "extraordinary circumstances." Hence, before undertaking controversial policies, prudent officials seek legal opinions in the form of memorandums of law.
The application of these principles frequently results in qualified immunity. Thus, in a case involving allegations of abusive interrogations, detainees sued an Assistant Attorney General who wrote legal memorandums concerning the conduct in question. The federal Court of Appeals for the Ninth Circuit in a 2012 decision found that the official was entitled to qualified immunity stating: "We agree with the plaintiffs that the unconstitutionality of torturing a United States citizen was "beyond debate" by 2001. Yoo is entitled to qualified immunity, however, because it was not clearly established in 2001-03 that the treatment to which Padilla says he was subjected amounted to torture" (Padilla v. Yoo). Complex public policy questions, national defense issues, and constitutional separation of powers analysis are associated with these issues.
The question of qualified immunity precedes the actual trial and trial preparations such as the questioning of witnesses by taking depositions. Consequently, the defendant must assert an immunity defense immediately and obtain a favorable judicial ruling or risk losing it. A denial of immunity may be immediately appealed.
Qualified immunity provides government officials latitude to make reasonable but mistaken judgments concerning unsettled legal questions. Public policy encourages officials to decide how to best allocate available resources of time and money without the fear of harassing or costly litigation. This is especially applied when a discretionary function is involved.
Thus, the U.S. Supreme Court held that the police cannot be sued for the failure to enforce a domestic violence restraining order, despite receiving a number of telephone calls, resulting in the murder of three children (Town of Castle Rock v. Gonzalez, 2005). Consequently, a domestic violence victim must not be overconfident that a restraining order (printed on paper) will provide necessary security from violence. If the circumstances indicate danger, as unfair as it may be, the potential victims must hide, flee, or engage in vigilant self-defense. An earlier Supreme Court decision held that a Department of Social Services could not be sued when it failed to prevent child abuse (DeShaney v. Winnebago County Department of Social Services, 1989). These decisions are controversial.
A classic 1971 U.S. Supreme Court decision, Bivens v. Six Unknown Named Agents, held that individuals whose Fourth Amendment rights were violated could sue for this violation, even in the absence of a statute that authorized the suit. So called "Bivens" lawsuits often involve allegations of excessive force. A plaintiff cannot recover in both a FTCA case and a Bivens case and must make a strategic decision. Both compensatory and punitive damages are available in a Bivens case, as well as a jury trial. Complex legal questions surround the legal rights of non-citizens and potential liability for actions occurring outside of the U.S.
Numerous judicial decisions address the actions of police officers and prison officials. For example, a 2015 U.S. Supreme Court decision applied qualified immunity to a situation involving police deadly force used against an inhabitant of a group home for the mentally ill who brandished a knife. The Court quoted a prior decision in stating that government officials have "breathing room to make reasonable but mistaken judgments" and that the applicable standard protects "all but the plainly incompetent or those who knowingly violate the law." Furthermore, even if an officer acts contrary to specific training, that does not negate qualified immunity as long as "a reasonable officer could have believed that his conduct was justified." An expert's report that "an officer's conduct leading up to a deadly confrontation was imprudent, inappropriate, or even reckless" will not alone overcome qualified immunity (City and County of San Francisco v. Sheehan).
In like manner, another 2015 U.S. Supreme Court decision applied qualified immunity in the context of a prisoner's suicide since no U.S. Supreme Court decision or the weight of authority from the federal Courts of Appeal "establishes a right to the proper implementation of adequate suicide prevention protocols" (Taylor v. Barkes).
The federal Civil Rights Act of 1871 (42 U.S.C. Sec 1983) provides that "every person who, under color of any statute, ordinance, regulation, custom, or usage ...subjects ... [any] person ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured..." This provision was essentially dormant until the U.S. Supreme Court decision in Monroe v. Pape (1961) allowing individual police officers to be sued even if their acts were not authorized and may have been forbidden by the state. "Section 1983" lawsuits are too complex to be adequately discussed in this brief comment. Typically if the individual is an employee of a governmental unit, she or he is acting under "color of law" for purposes of potential liability. Note that liability may occur for "off-duty" actions when the individual asserts official authority. Private parties may also be included in a lawsuit if they engaged jointly with governmental officials in the challenged action.
The U.S. Supreme Court has determined that, while Section 1983 contains no liability defenses, officials may still assert absolute or qualified immunity (See, Harlow v. Fitzgerald, 1982). Thus, the President, a legislator, a judge, or a prosecutor, are typically entitled to absolute immunity from damages suits predicated on official acts. Allegations of malice or improper intent will not overturn immunity. Section 1983 suits against a state and its departments or agencies are barred by the Eleventh Amendment. State officials typically have qualified immunity. However, even the President is not entitled to absolute immunity when "the alleged misconduct ... was unrelated to any of his official duties as President..." (Clinton v. Jones, 1997).
Conceptually, qualified immunity involves two fundamental issues:
1. Taking the facts most favorably to the plaintiff, does the allegation demonstrate that the public official violated a constitutional right?
2. Was this right clearly established in this specific situation?
Much of the litigation focus has been on the second question with the Supreme Court indicating that the "clearly established" requirement gives officials the same fair warning that individuals are entitled to in the realm of criminal law.
Realize that suing governmental agencies and individual officials for alleged injuries is difficult but not impossible. Favorable facts of blatantly wrongful actions are often essential. This area of law is sufficiently complex to require expert involvement.
This comment provides a brief and incomplete educational overview of a complex topic and is not intended to provide legal advice. Always consult an experienced attorney in all injury and litigation situations.
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The statement, "the king can do no wrong," dates from at least 1200 and was famously quoted by William Blackstone in his "Commentaries on the Laws of England" published in 1765-1769. However, Blackstone indicated that the king could consent to being sued; the king's ministers could be sued for acting beyond their legislative authority; and the king could be sued for violating the English constitution. From Blackstone, sovereign immunity became part of U.S. law. Applicable sovereign immunity is an initial question when one attempts to sue governmental bodies.
After the collapse of Madoff's Ponzi scheme, defrauded investors attempted to hold the U.S. liable for the failure of the Securities and Exchange Commission (SEC) to detect the fraud. The lawsuit was brought under the Federal Tort Claims Act (FTCA) (28 U.S. C. Sec 1346). This legislation permits private lawsuits against the federal government in certain circumstances and amounts to a limited waiver (giving up) of sovereign immunity. The legislation resulted from the 1945 crash of a B-25 bomber into the Empire State Building. Many states have similar legislation.
However, the FTCA does not permit lawsuits based upon the performance or non-performance of a "discretionary function or duty." This provision resulted in the dismissal of the Madoff investors' lawsuit in 2013 by the federal Court of Appeals for the Second Circuit (Molchatsky v. United States). The opinion did express sympathy for the Plaintiff's predicament and antipathy for the SEC's conduct. Procedurally, under the FTCA an injured party must present a written claim to the federal agency in question within two years of the accrued claim or be prevented from asserting it. Federal Tort Claims Act litigation is too complex to discuss in detail in this brief comment.
Certain categories of individuals have absolute immunity from civil lawsuits and liability for damages. These commonly include judges, prosecutors, witnesses, and legislators acting legislatively. What is said in the courtroom or in Congress cannot be the basis for recovery in a defamation lawsuit. Occasionally a successful lawsuit is brought for comments made to the news media outside of those venues. Of course, perjury while under oath is a crime. A common defense in a murder trial is to question the character and motives of the victim. Frequently family members of the victim find this tactic offensive but any successful legal recourse is unlikely.
However, in many situations immunity is not absolute but qualified.
Qualified immunity shields officials from civil damages unless the official violated "clearly established" legal rights. This is a high barrier to recovery. The plaintiff (one suing) must establish facts that clearly show a violation. Then, the plaintiff must additionally demonstrate that the conduct in question was not "objectively reasonable." That is, all reasonable officials would know that the particular conduct violated legal rights. Still, the defendant (one being sued) may be able to prove "extraordinary circumstances" showing that the official neither knew nor should have known the legal standard. Relying on the advice of counsel often provides "extraordinary circumstances." Hence, before undertaking controversial policies, prudent officials seek legal opinions in the form of memorandums of law.
The application of these principles frequently results in qualified immunity. Thus, in a case involving allegations of abusive interrogations, detainees sued an Assistant Attorney General who wrote legal memorandums concerning the conduct in question. The federal Court of Appeals for the Ninth Circuit in a 2012 decision found that the official was entitled to qualified immunity stating: "We agree with the plaintiffs that the unconstitutionality of torturing a United States citizen was "beyond debate" by 2001. Yoo is entitled to qualified immunity, however, because it was not clearly established in 2001-03 that the treatment to which Padilla says he was subjected amounted to torture" (Padilla v. Yoo). Complex public policy questions, national defense issues, and constitutional separation of powers analysis are associated with these issues.
The question of qualified immunity precedes the actual trial and trial preparations such as the questioning of witnesses by taking depositions. Consequently, the defendant must assert an immunity defense immediately and obtain a favorable judicial ruling or risk losing it. A denial of immunity may be immediately appealed.
Qualified immunity provides government officials latitude to make reasonable but mistaken judgments concerning unsettled legal questions. Public policy encourages officials to decide how to best allocate available resources of time and money without the fear of harassing or costly litigation. This is especially applied when a discretionary function is involved.
Thus, the U.S. Supreme Court held that the police cannot be sued for the failure to enforce a domestic violence restraining order, despite receiving a number of telephone calls, resulting in the murder of three children (Town of Castle Rock v. Gonzalez, 2005). Consequently, a domestic violence victim must not be overconfident that a restraining order (printed on paper) will provide necessary security from violence. If the circumstances indicate danger, as unfair as it may be, the potential victims must hide, flee, or engage in vigilant self-defense. An earlier Supreme Court decision held that a Department of Social Services could not be sued when it failed to prevent child abuse (DeShaney v. Winnebago County Department of Social Services, 1989). These decisions are controversial.
A classic 1971 U.S. Supreme Court decision, Bivens v. Six Unknown Named Agents, held that individuals whose Fourth Amendment rights were violated could sue for this violation, even in the absence of a statute that authorized the suit. So called "Bivens" lawsuits often involve allegations of excessive force. A plaintiff cannot recover in both a FTCA case and a Bivens case and must make a strategic decision. Both compensatory and punitive damages are available in a Bivens case, as well as a jury trial. Complex legal questions surround the legal rights of non-citizens and potential liability for actions occurring outside of the U.S.
Numerous judicial decisions address the actions of police officers and prison officials. For example, a 2015 U.S. Supreme Court decision applied qualified immunity to a situation involving police deadly force used against an inhabitant of a group home for the mentally ill who brandished a knife. The Court quoted a prior decision in stating that government officials have "breathing room to make reasonable but mistaken judgments" and that the applicable standard protects "all but the plainly incompetent or those who knowingly violate the law." Furthermore, even if an officer acts contrary to specific training, that does not negate qualified immunity as long as "a reasonable officer could have believed that his conduct was justified." An expert's report that "an officer's conduct leading up to a deadly confrontation was imprudent, inappropriate, or even reckless" will not alone overcome qualified immunity (City and County of San Francisco v. Sheehan).
In like manner, another 2015 U.S. Supreme Court decision applied qualified immunity in the context of a prisoner's suicide since no U.S. Supreme Court decision or the weight of authority from the federal Courts of Appeal "establishes a right to the proper implementation of adequate suicide prevention protocols" (Taylor v. Barkes).
The federal Civil Rights Act of 1871 (42 U.S.C. Sec 1983) provides that "every person who, under color of any statute, ordinance, regulation, custom, or usage ...subjects ... [any] person ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured..." This provision was essentially dormant until the U.S. Supreme Court decision in Monroe v. Pape (1961) allowing individual police officers to be sued even if their acts were not authorized and may have been forbidden by the state. "Section 1983" lawsuits are too complex to be adequately discussed in this brief comment. Typically if the individual is an employee of a governmental unit, she or he is acting under "color of law" for purposes of potential liability. Note that liability may occur for "off-duty" actions when the individual asserts official authority. Private parties may also be included in a lawsuit if they engaged jointly with governmental officials in the challenged action.
The U.S. Supreme Court has determined that, while Section 1983 contains no liability defenses, officials may still assert absolute or qualified immunity (See, Harlow v. Fitzgerald, 1982). Thus, the President, a legislator, a judge, or a prosecutor, are typically entitled to absolute immunity from damages suits predicated on official acts. Allegations of malice or improper intent will not overturn immunity. Section 1983 suits against a state and its departments or agencies are barred by the Eleventh Amendment. State officials typically have qualified immunity. However, even the President is not entitled to absolute immunity when "the alleged misconduct ... was unrelated to any of his official duties as President..." (Clinton v. Jones, 1997).
Conceptually, qualified immunity involves two fundamental issues:
1. Taking the facts most favorably to the plaintiff, does the allegation demonstrate that the public official violated a constitutional right?
2. Was this right clearly established in this specific situation?
Much of the litigation focus has been on the second question with the Supreme Court indicating that the "clearly established" requirement gives officials the same fair warning that individuals are entitled to in the realm of criminal law.
Realize that suing governmental agencies and individual officials for alleged injuries is difficult but not impossible. Favorable facts of blatantly wrongful actions are often essential. This area of law is sufficiently complex to require expert involvement.
This comment provides a brief and incomplete educational overview of a complex topic and is not intended to provide legal advice. Always consult an experienced attorney in all injury and litigation situations.
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