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How Qualified Immunity Works

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6-Part Test

Available for:
  ✓ Administrative Law Judges
  ✓ Federal Hearing Examiners
  ✓ Federal Officials
  ✓ Federal Prosecutors
  ✓ Government Officials
  ✓ Grand Jurors
  ✓ Immigration Judges
  ✓ Law Clerk
  ✓ Parole Board
  ✓ Police Officers
  ✓ Postmaster General
  ✓ President's Cabinet
  ✓ School Board Members
  ✓ State Court Judges
  ✓ State Governor (+ aides)
  ✓ State Officials
  ✓ State Prison Officials
  ✓ State Prosecutors
  ✓ Testifying Witnesses
  ✓ US President

Two Alternative 2-Part Tests

Available for:
  ✓ Federal Officials
  ✓ 'Individual Capacity' Lawsuits
  ✓ State Officials

I. Definitions

"right of exemption from a duty or penalty; benefit granted in exception to the general rule. Immunity from prosecution may be granted a witness to compel answers he or she might otherwise withhold because of the constitutional privilege to avoid self-incrimination."

II. Legal Citations

42 USC §1983 | Civil Action for Deprivation of Rights
"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except 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. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia." 42 USC §2000d-7 | Civil Rights Remedies Equalization
(a) General provision
(1) A State shall not be immune under the Eleventh Amendment of the Constitution of the United States from suit in Federal court for a violation of section 504 of the Rehabilitation Act of 1973 [29 U.S.C. 794], title IX of the Education Amendments of 1972 [20 U.S.C. 1681 et seq.], the Age Discrimination Act of 1975 [42 U.S.C. 6101 et seq.], title VI of the Civil Rights Act of 1964 [42 U.S.C. 2000d et seq.], or the provisions of any other Federal statute prohibiting discrimination by recipients of Federal financial assistance.

Art I §6 US Constitution | Compensation
"[Congressmen] shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place." 11th Amendment US Constitution | Judicial Limits
"The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." Section 5 14th Amendment US Constitution | Citizenship Rights
"5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."

III. Case Law

# Case Comments
1Adams v FranklinUSALMD | 2000 | Injured Prisoner ; Undisclosed Capacity; Supervisor Liability
2Attwood v ClemonsUSFLND | 2021 | Facebook, State Rep; Easy read on qualified immunity
3Cleavinger v SaxnerUSSC | 1985 | Absolute Immunity vs Qualified Immunity
4Davis v New YorkCA05 | 1999 | Prisoner, 2nd-Hand Smoke; Standing; Conclusory; Sovereign Immnty
5Forrester v WhiteUSSC | 1988 | Judge, Employee, Sex Discrim. | Qualified Immunity preferable
6Mireles v WacoUSSC | 1991 | Judicial Immunity is a type of qualified immunity

IV. Quick Commentary

  • Principle: To immunize the functions (not the persons) that the public rely
    "Here, as in other contexts, immunity is justified and defined by the functions it protects and serves, not by the person to whom it attaches.

    This Court has never undertaken to articulate a precise and general definition of the class of acts entitled to immunity. The decided cases, however, suggest an intelligible distinction between judicial acts and the administrative, legislative, or executive functions that judges may on occasion be assigned by law to perform."

    - see Forrester v White, 484 US 219 (1988)

    "Whether the act done by him was judicial or not is to be determined by its character, and not by the character of the agent. Whether he was a county judge or not is of no importance. The duty of selecting jurors might as well have been committed to a private person as to one holding the office of a judge. . . . That the jurors are selected for a court makes no difference. So are court-criers, tipstaves, sheriffs, &c. Is their election or their appointment a judicial act?"

    - see Ex parte Virginia, 100 U.S. 339 (1880)

  • Test #1 for Qualified Immunity:
    1. whether the plaintiff's rights were violated; and
    2. whether the violated right was clearly established at the time of the violation.

  • Test #2 for Qualified Immunity:
    1. whether the official was performing a discretionary function; and
      • undertaken pursuant to the performance of his/her duties; and
      • within the scope of his/her authority
    2. whether the violated right was clearly established at the time of the violation.

  • Clearly Established Law: Requisite Legal Sources (legal pillars that sufficiently notify government officials of unlawful conduct)
    • specific statutory provisions;
    • specific constitutional provisions;
    • principles of law enunciated in relevant decisions;
    • factually similar cases already decided by federal courts in the relevant jurisdiction;
    • factually similar cases already decided by state courts in the relevant jurisdiction; and/or
    • "obvious clarity" that the officer's conduct is so unreasonable that he "had to know he was violating the Constitution without case law on point."

IV. Additional Notes

V. Bibliography

Congratulations! You're now booked up on how Qualified Immunity works!

Please get the justice you deserve.


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