Government officials are frequently given legal immunity relating to their work. This immunity is based on the premise that government employees — from legislators to police — shouldn’t be held personally liable for actions they take as officials.
The idea behind the qualified immunity doctrine was that officials need to be able to make reasonable mistakes without fear of being driven to financial ruin from lawsuits. That’s considered especially crucial in circumstances requiring quick action, such as when a police officer chases a suspect, says Mark Chutkow, a former federal prosecutor who is now a member of law firm Dykema Gossett PLLC.
This doesn’t mean that government officials have a legal equivalent of Captain America’s shield, protecting them from any and all legal consequences. Instead, there are different types of immunity, and how much cover they provide depends on officials’ roles and their actions at the time.
Governmental Immunity vs. Immunity From Criminal Prosecution
Television cop dramas often include a scene where a perpetrator agrees to help with a police investigation in exchange for not being prosecuted for their own crime.
People often confuse governmental immunity with the immunity in that scenario, but they are very different, Chutkow says.
First, governmental immunity generally only applies to civil cases and not criminal prosecutions, he says.
Next, immunity in the above criminal scenario is granted to one person at the prosecutor’s discretion. Meanwhile, governmental immunity stems from court decisions and statutes, and it applies to all eligible officials.
Officials are protected when they take office, before doing anything that could result in litigation. Immunity in the criminal context is granted after the wrongdoing has occurred.
The Essential Question: Was the Official Acting Within Their Scope of Duty?
When determining immunity, a crucial consideration is whether the official acted within the scope of their duties at the time of the alleged wrongdoing. If they were, they are likely immune from a civil lawsuit. If they were not, they are probably not immune.
An off-duty police officer who gets into a bar fight will probably not get any immunity relating to his policework, says Joanna Schwartz, law professor at the University of California–Los Angeles School of Law and author of “Shielded: How the Police Became Untouchable.”
But these determinations can be complicated, particularly if the official uses the auspices of their office to perpetuate a crime (such as if a police officer uses a traffic stop as a ruse for raping a driver).
Additionally, even if immunity precludes a civil action, it won’t prevent criminal prosecution.
For example, a litigant cannot sue a judge for decisions the judge made during a trial. But if the judge was paid to make those decisions, he could still be prosecuted for bribery, Chutkow says.
To reduce the confusion, some statutes, particularly those relating to bribery and corruption, define what constitutes an official act, he says.
‘Absolute Immunity’ and ‘Qualified Immunity’
Since 1967, the U.S. Supreme Court has had a doctrine that, when officials face a lawsuit alleging civil rights violations under federal law, they are entitled to assert a defense of “absolute immunity” or “qualified immunity.”
Judges and prosecutors are entitled to absolute immunity. They are immune from civil lawsuits, even if their actions were unconstitutional — such as bringing racially motivated charges, Schwartz says.
Most officials, including governors, police officers, prison guards and other administrators, are entitled to qualified immunity. These officials are presumptively immune from lawsuits unless they’ve violated a “clearly established” constitutional right or existing case law with a factually similar circumstance, Schwartz says.
Granting of absolute and qualified immunity should be determined by a person’s function rather than their title, she says.
For example, when a prosecutor appears in court, she would receive absolute immunity. But if she is in the field investigating the case like a police officer, she would only receive qualified immunity. And in practice, the lines are often hazy — such as when she’s in her office, interviewing witnesses before trial, Schwartz says.
The Use of Qualified Immunity
According to Schwartz’s research, in the context of the police cases, officers are usually indemnified — they don’t pay judgments or settlements — and they are already protected when they’ve acted in good faith. So police would be unlikely to suffer financial peril in lawsuits, and this concern is overblown. Meanwhile, those who have suffered genuine constitutional wrongs are barred from remedy, Schwartz says.
A report by the Institute for Justice released in February found that a claim of qualified immunity was the subject of 5,526 federal appeals between 2010 and 2020, and the government defendants won the majority of the time.
Contrary to popular expectations, only 23% of these cases related to allegations of use of excessive force by police. Nearly the same amount — 1 in 5 appeals — were related to violations of First Amendment rights. In a further analysis of the First Amendment cases, the researchers concluded that most involved government officials’ premeditated retaliation for protected speech.
The proof required to challenge a claim of qualified immunity will be soon tested in Gonzalez v. Trevino, a case to be argued before the Supreme Court in March. In that case, a 72-year-old Texas city council member, Sylvia Gonzalez, was arrested after advocating for the removal of the city manager.
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Immunity in Congress and the White House
The role of official acts as a bar to litigation is a concern that applies all the way to Congress.
Protected by the Constitution’s “speech or debate” clause, legislators are to remain free of fear that they’ll be punished for making policy decisions.
Chutkow once visited Ukraine when a former official was being prosecuted — with no suggestion of wrongdoing but because a different regime opposed her policies.
“I think that underscores why we don’t do that,” Chutkow says.
But the speech or debate clause has limits. In Gravel v. United States, the Supreme Court explained that a U.S. senator shouldn’t be prosecuted for reading classified documents aloud during a congressional hearing. But the senator could still be prosecuted for leaking those documents if it was unrelated to legislative deliberations.
When it comes to presidential liability, in Clinton v. Jones, the Supreme Court held that an individual could sue a sitting president for personal acts unrelated to the presidency, and a civil lawsuit can go forward while the president is still in office. The court wrote, “(W)e have never suggested that the President, or any other official, has an immunity that extends beyond the scope of any action taken in an official capacity.”
Exactly how far it extends is yet to be determined.
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When Are Government Officials Legally Immune? originally appeared on usnews.com
