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4 PJI 7.1 | Third Circuit (US)
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4 PJI 7.1 | SECTION 1983 - CONDUCT NOT COVERED BY ABSOLUTE IMMUNITY

The defendant in this case is a [prosecutor] [judge] [witness] [legislative body]. [Prosecutors, etc.] are entitled to what is called absolute immunity for all conduct reasonably related to their functions as [prosecutors, etc.]. Thus, you cannot hold [defendant] liable based upon [defendant’s] actions in [describe behavior protected by absolute immunity]. Evidence concerning those actions was admitted solely for [a] particular limited purpose[s]. This evidence can be considered by you as evidence that [describe limited purpose]. But you cannot decide that [defendant] violated [plaintiff’s] [specify right] based on evidence that [defendant] [describe behavior protected by absolute immunity].

However, [plaintiff] also alleges that [defendant] [describe behavior not covered by absolute immunity]. Absolute immunity does not apply to such conduct, and thus if you find that [defendant] engaged in such conduct, you should consider it in determining [defendant’s] liability.

COMMENT In most cases, questions of absolute immunity should be resolved by the judge prior to trial. Instruction 4.7.1 will only rarely be necessary; it is designed to address cases in which some, but not all, of the defendant’s alleged conduct would be covered by absolute immunity, and in which evidence of the conduct covered by absolute immunity has been admitted for some purpose other than demonstrating liability. In such a case, the jury should determine liability based on the conduct not covered by absolute immunity. Instruction 4.7.1 provides a limiting instruction specifically tailored to this issue; see also General Instruction 2.10 (Evidence Admitted for Limited Purpose).

Prosecutors89 have absolute immunity from damages claims concerning prosecutorial functions. “[A]cts undertaken by a prosecutor in preparing for the initiation of judicial proceedings or for trial, and which occur in the course of his role as an advocate for the State, are entitled to the protections of absolute immunity.” Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993); see also Imbler v. Pachtman, 424 U.S. 409 (1976); Burns v. Reed, 500 U.S. 478, 492 (1991) (holding that a prosecutor’s “appearance in court in support of an application for a search warrant and the presentation of evidence at that hearing” were “protected by absolute immunity”). Moreover, “supervision or training or information system management” activities can qualify for absolute immunity – even though such acts are administrative in nature – if the administrative action in question “is directly connected with the conduct of a trial.” Van De Kamp v. Goldstein, 129 S. Ct. 855, 861-62 (2009); see id. at 858-59 (holding that absolute immunity “extends to claims that the prosecution failed to disclose impeachment material... due to: (1) a failure properly to train prosecutors, (2) a failure properly to supervise prosecutors, or (3) a failure to establish an information system containing potential impeachment material about informants”). Absolute immunity does not apply, however, “[w]hen a prosecutor performs the investigative functions normally performed by a detective or police officer,” Buckley, 509 U.S. at 273, or when a prosecutor “provid[es] legal advice to the police,” Burns, 500 U.S. at 492, 496.90

Judges possess absolute immunity from damages liability for “acts committed within their judicial jurisdiction.” Pierson v. Ray, 386 U.S. 547, 554 (1967).91 “[T]he factors determining whether an act by a judge is a ‘judicial’ one relate to the nature of the act itself, i.e., whether it is a function normally performed by a judge, and to the expectations of the parties, i.e., whether they dealt with the judge in his judicial capacity.” Stump v. Sparkman, 435 U.S. 349, 362 (1978).92 Judges do not possess absolute immunity with respect to claims arising from “the administrative, legislative, or executive functions that judges may on occasion be assigned by law to perform.” Forrester v. White, 484 U.S. 219, 227 (1988).

State or local legislators enjoy absolute immunity from suits seeking damages or injunctive remedies with respect to legislative acts. See Tenney v. Brandhove, 341 U.S. 367, 379 (1951) (recognizing absolute immunity in case where state legislators “were acting in a field where legislators traditionally have power to act”); Bogan v. Scott Harris, 523 U.S. 44, 49 (1998) (unanimous decision) (holding that “local legislators are... absolutely immune from suit under § 1983 for their legislative activities”).

The Court of Appeals has set forth a two-part test for legislative immunity in suits against local officials: “To be legislative..., the act in question must be both substantively and procedurally legislative in nature.... An act is substantively legislative if it involves ‘policy making of a general purpose’ or ‘line drawing.’... It is procedurally legislative if it is undertaken ‘by means of established legislative procedures.’” In re Montgomery County, 215 F.3d 367, 376 (3d Cir. 2000) (quoting Carver v. Foerster, 102 F.3d 96, 100 (3d Cir. 1996)). Based on the Supreme Court’s discussion in Bogan,93 the Court of Appeals has questioned the two-part test’s applicability to local officials and has indicated that it does not govern claims against state officials.94 See, e.g., Larsen v. Senate of Com. of Pa., 152 F.3d 240, 252 (3d Cir. 1998) (“[B]ecause concerns for the separation of powers are often at a minimum at the municipal level, we decline to extend our analysis developed for municipalities to other levels of government.”). More recently, however, the Court of Appeals has held that “[r]egardless of the level of government,... the two part substance/procedure inquiry is helpful in analyzing whether a non legislator performing allegedly administrative tasks is entitled to [legislative] immunity.” Baraka v. McGreevey, 481 F.3d 187, 199 (3d Cir. 2007) (addressing claims against New Jersey Governor and chair of the New Jersey State Council for the Arts).95

Law enforcement officers who serve as witnesses generally have absolute immunity from claims concerning their testimony. See Briscoe v. LaHue, 460 U.S. 325, 345 (1983) (trial testimony); Rehberg v. Paulk, 132 S. Ct. 1497, 1506 (2012) (grand jury testimony).96

In addition to the immunities recognized by the Supreme Court, there may exist other categories of absolute immunity. See, e.g., Ernst v. Child and Youth Services of Chester County, 108 F.3d 486, 488-89 (3d Cir. 1997) (holding that “child welfare workers and attorneys who prosecute dependency proceedings on behalf of the state are entitled to absolute immunity from suit for all of their actions in preparing for and prosecuting such dependency proceedings”); B.S. v. Somerset County, 704 F.3d 250, 265 (3d Cir. 2013) (holding “that Ernst's absolute immunity for child welfare employees is appropriate when the employee in question ‘formulat[es] and present[s]... recommendations to the court’ with respect to a child's custody determination, even if those recommendations are made outside the context of a dependency proceeding” (quoting Ernst, 108 F.3d at 495)).

(Last Updated July 2019)

Footnotes

89 See Light v. Haws, 472 F.3d 74, 78 (3d Cir. 2007) (holding that Assistant Counsel for the Pennsylvania Department of Environmental Protection, when “filing actions to enforce compliance with court orders.... [,] functions as a prosecutor”).
90 See also Kalina v. Fletcher, 522 U.S. 118, 120, 131 (1997) (prosecutor lacked absolute immunity from claim asserting that she “ma[de] false statements of fact in an affidavit supporting an application for an arrest warrant,” because in so doing she “performed the function of a complaining witness” rather than that of an advocate); Fogle v. Sokol, 957 F.3d 148 (3d Cir. 2020) (holding that arranging a hypnosis session to procure a statement and encouraging troopers to solicit false statements from jailhouse informants were not protected by absolute immunity, while failing to report inconsistencies to a magistrate judge and various misconduct at hearings and at trial were protected); Reitz v. County of Bucks, 125 F.3d 139, 146 (3d Cir. 1997) (holding that “absolute immunity covers a prosecutor's actions in (1) creating and filing of an in rem complaint; (2) preparing of and applying for the seizure warrant; and (3) participating in ex parte hearing for the issuance of the seizure warrant,” but does not cover prosecutor’s “conduct with respect to the management and retention of the property after the seizure, hearing, and trial”).

In Odd v. Malone, 538 F.3d 202 (3d Cir. 2008), “prosecuting attorneys obtained bench warrants to detain material witnesses whose testimony was vital to murder prosecutions. Although the attorneys diligently obtained the warrants, they neglected to keep the courts informed of the progress of the criminal proceedings and the custodial status of the witnesses.” Id. at 205. The Court of Appeals held that a prosecutor sued “for failing to notify the relevant authorities that the proceedings in which the detained individual was to testify had been continued for nearly four months,” id., did not qualify for absolute prosecutorial immunity; the court based this holding on the facts of the case, including the fact that the judge who issued the material witness warrant had directed the prosecutor to notify him of any delays in the murder prosecution but the prosecutor had failed to do so. Id. at 212 13. The Odd court also held (a fortiori) that a different prosecutor sued “for failing to notify the relevant authorities that the material witness remained incarcerated after the case in which he was to testify had been dismissed,” id. at 205, lacked absolute prosecutorial immunity. See id. at 215. In Schneyder v. Smith, 653 F.3d 313 (3d Cir. 2011), the Court of Appeals on a subsequent appeal adhered to its ruling that the prosecutor who allegedly failed to inform the court of the trial continuance lacked absolute immunity, see id. at 333-34. The Schneyder court reasoned that its ruling in Odd was consistent with the Supreme Court’s subsequent decision in Van de Kamp v. Goldstein, 129 S. Ct. 855 (2009). Under Van de Kamp, “some administrative functions relate directly to the conduct of a criminal trial and are thus protected, while others... are connected to trial only distantly (if at all) and are therefore not subject to immunity.” Schneyder, 653 F.3d at 334. The Schneyder court concluded that the prosecutor’s failure to inform the court of the trial continuance fell in the latter category: The failure was not “directly connected to the conduct of a trial,” and “[a]s the sole government official in possession of the relevant information, [the prosecutor] had a duty of disclosure that was neither discretionary nor advocative, but was instead a purely administrative act not entitled to the shield of immunity, even after Van de Kamp.” Schneyder, 653 F.3d at 334.

91 Judges also now possess a statutory immunity from claims for injunctive relief. See 42 U.S.C. § 1983 (providing that “in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable”).
92 Under the doctrine of “quasi-judicial” immunity, “government actors whose acts are relevantly similar to judging are immune from suit.” Dotzel v. Ashbridge, 438 F.3d 320, 325 (3d Cir. 2006); see id. at 322 (holding that “the members of the Board of Supervisors of Salem Township, Pennsylvania are immune from suits brought against them in their individual capacities relating to their decision to deny an application for a permit for a conditional use”); id. at 327 (stressing the need to “closely and carefully examine the functions performed by the board in each case”); Capogrosso v. Supreme Court of New Jersey, 588 F.3d 180, 185 (3d Cir. 2009) (holding that individual-capacity claims against Director and Disciplinary Counsel for New Jersey Advisory Committee on Judicial Conduct were barred by quasi-judicial immunity); Keystone Redev. Partners, LLC v. Decker, 631 F.3d 89, 90 (3d Cir. 2011) (holding that former members of Pennsylvania Gaming Control Board had quasi-judicial immunity from individual-capacity claims “based on their decisions to grant gaming licenses to certain applicants other than” the plaintiff).
93 The Bogan Court declined to determine whether a procedurally legislative act by a local official must also be substantively legislative in order to qualify for legislative immunity: “Respondent... asks us to look beyond petitioners' formal actions to consider whether the ordinance was legislative in substance. We need not determine whether the formally legislative character of petitioners' actions is alone sufficient to entitle petitioners to legislative immunity, because here the ordinance, in substance, bore all the hallmarks of traditional legislation.” Bogan, 523 U.S. at 55.
94 The Court of Appeals stated (in a case concerning claims against state legislators) that Bogan casts doubt on the propriety of using any separate test to examine municipal level legislative immunity, see Bogan, 523 U.S. at 49... (holding that local legislators are ‘likewise’ absolutely immune from suit under § 1983), particularly a two part, substance/procedure test, id. at 55... (refusing to require that an act must be ‘legislative in substance’ as well as of ‘formally legislative character’ in order to be a legislative act).

Youngblood v. DeWeese, 352 F.3d 836, 841 n.4 (2004); see also Fowler Nash v. Democratic Caucus of Pa. House of Representatives, 469 F.3d 328, 339 (3d Cir. 2006) (stating, in a suit against state officials, that the Bogan Court “refused to insist that formally legislative acts, such as passing legislation, also be ‘legislative in substance’”).

95 Prior to Baraka, the Court of Appeals had observed in Fowler Nash v. Democratic Caucus of Pa. House of Representatives, 469 F.3d 328, 338 (3d Cir. 2006), that cases concerning local officials can be “instructive” in the court’s analysis of whether a state official’s actions were legislative in nature. See also id. at 332 (describing the “functional” test for legislative immunity); id. at 340 (holding that firing of state representative’s legislative assistant was administrative rather than legislative act). And another post-Larsen decision by the Court of Appeals did apply the two-part test to determine whether Pennsylvania Supreme Court justices had legislative immunity from claims arising from the termination of a plaintiff’s employment as the Executive Administrator of the First Judicial District of Pennsylvania. See Gallas v. Supreme Court of Pennsylvania, 211 F.3d 760, 776-77 (3d Cir. 2000). Gallas involved a question of legislative immunity because the plaintiff challenged a Pennsylvania Supreme Court order that eliminated the position of Executive Administrator of the First Judicial District of Pennsylvania. See id. at 766.
96 Compare Malley v. Briggs, 475 U.S. 335, 344 (1986) (no absolute immunity for a police officer in connection with claim that his “request for a warrant allegedly caused an unconstitutional arrest”).

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