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)).
