Basic Guide to Immunity for Government Officials

I. Introduction

Section 1983[1] of the Civil Rights Act creates a private cause of action against government officials when they violate any constitutional right.[2] To win a cause of action brought under Section 1983, plaintiffs must prove, first, that they were deprived of a constitutional right and, second, that the person who deprived them of that right was acting under color of law.[3] Rights alleged to have been violated by police in particular tend to be those arising under the Fourth Amendment, which prohibits unreasonable searches and seizures.[4] This includes overly intrusive searches, or searches that lack the proper justification to be reasonable. It also includes so-called police brutality violations, since excessive use of force in making an arrest is an unreasonable seizure under the Fourth Amendment.[5]

Unfortunately, proving a constitutional violation is not the only hurdle plaintiffs face when suing the police under Section 1983. Police officers are actually immune from civil suits in certain circumstances. This article discusses the two types of immunity as well as the policy reasons for the immunity rule. As the article shows, immunity is a complex doctrine that can pose a challenge to plaintiffs, but not an unsurmountable one. The underlying purpose of Section 1983 is to allow redress for violations of constitutional rights; anyone who believes their rights have been violated should contact an experienced civil rights attorney to discuss their options.

II. Types of Immunity

There are two types of immunity: absolute and qualified. In general, absolute immunity offers stronger protections, but is more sparingly applied. Qualified immunity, as the name suggests, offers weaker protection, but to more government officials.

Qualified immunity applies to officers conducting discretionary, as opposed to ministerial, acts.[6] Because police activity is usually discretionary, police officers generally receive the lesser protection of qualified immunity. [7]

A. Absolute immunity

Absolute immunity is a complete bar to a lawsuit, with no exceptions.[8] It generally applies to judicial officials like judges,[9] prosecutors, jurors, and witnesses [10]. The strong protection of absolute immunity is tempered by its limited application and duration. Absolute immunity is “strong medicine,”[11] reserved for comparatively few types of officials[12] and only applies so long as the official is acting in their judicial capacity. [13] For example, a judge is acting in their judicial capacity when they are hearing a case, but when they hire and fire court employees they are not, and are thus entitled only to qualified immunity[14].

B. Qualified immunity

Like absolute immunity, qualified immunity is not just an affirmative defense to be raised at trial, it is the freedom from suit or the right not to be sued altogether.[15] Thus, issues of qualified immunity are to be addressed early,[16] in order to free officials from the hassle of trial. [17] Needless to say, one cannot receive any monetary remedy under Section 1983 from an individual protected by qualified immunity.

To win a lawsuit alleging a violation of Section 1983, a plaintiff must prove, among other things, that a constitutional right was violated. Assuming the court finds a constitutional right was violated, a plaintiff must also overcome the qualified immunity rule. The rule can be stated as follows: Qualified immunity protects government officials if their actions do not violate clearly established rights of which a reasonable person would have known or if their actions were nonetheless objectively reasonable.[18] The rule breaks down into two inquiries. One, whether the right violated was clearly established at the time the violation occurred. And, two, whether the violation was nonetheless objectively reasonable at the time. If, in resolving the first inquiry, it is determined that the right was not clearly established, qualified immunity protects the official and the inquiries end. If instead it is determined that the right was clearly established, then, under the second inquiry, qualified immunity still protects the official if their violation was objectively reasonable at the time.[19] Thus, defendants in a civil rights case can (and will) attack the plaintiff on three fronts. They will argue that there was no civil right violation as required under Section 1983, that the right was not clearly established, and that their actions where objectively reasonable. They only need to win one of those arguments to win the case, whereas plaintiffs must win all three.

While the effect of this rule may seem harsh, considered in light of its rational it makes more sense. Government officials cannot be expected to predict future developments in the law, and thus are not required to abide by laws that are not clearly established. [20] Nevertheless (in the Tenth Circuit at least) officials are expected to analogize to existing laws to a certain degree.[21]

To determine whether a right has been clearly established, the right itself must first be properly defined. Only particularized rights (as opposed to generalized ones) are acceptable.[22] For example, the right to be free from unreasonable searches and seizures is clearly established by the Fourth Amendment.[23] But this is too general because it could be said that “any action that violates that Clause (no matter how unclear it may be that the particular action is a violation) violates a clearly established right.”[24] Thus, answering the two inquiries in light of a right so generally stated would turn the rule of immunity into “a rule of virtually unqualified liability.”[25]

Once the right has been sufficiently particularized, in order to be clearly established, “[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.”[26] This does not mean that what the official is doing must have already been held unlawful.[27] For that would theoretically mean any violation is only clearly established as unconstitutional after the first time it has been committed. In reality, laws can be clearly established even before a court has explicitly said so if the unlawfulness of the act is apparent in light of pre-existing law. [28] Further, in the Tenth Circuit at least, constitutional violations merely analogous to those clearly established are also considered clearly established for the purposes of immunity analysis.[29]

Turning to the second inquiry, whether an official’s conduct is objectively reasonable is “measured by reference to clearly established law.” [30] This is a rather vague test, but the following guidelines may be helpful. The Fifth Circuit has taken this to mean that “[a]n official enjoys qualified immunity if a reasonable official would be left uncertain of the application of the standard to the facts confronting him.”[31] And in Pfannstiel added that “[i]f reasonable public officials could differ on the lawfulness of the defendant’s actions, the defendant is entitled to qualified immunity.” [32]

1. Immunity in excessive force cases

Simply arguing that any use of excessive force violates the clearly established right to be free from unreasonable seizures is too general. Rather, the issue to be resolved in the first inquiry is “whether the particular degree of force under the particular circumstances was [clearly established as] excessive” under the Fourth Amendment’s reasonableness standard.[33] In other words, whether it was established that the particular type of force used was excessive in the given context. For example, it might be clearly established that a choke hold is excessive in ordinary circumstances, but not excessive when used to combat deadly force by the suspect. [34] Further, regarding the objective reasonableness inquiry, recall that the use of force is objectively unreasonable if no reasonable officer would find the use did not violate the Fourth Amendment.[35] Police department policies and procedures on use of force can shed light on what, in the eyes of the department, is clearly established since the policies are often written with an eye toward Supreme Court law.[36] Further, they can be an indicator of what a reasonable officer would consider, or not consider, to be constitutional uses of force.[37] The policies of the San Francisco Police Department (“SFPD”), for example, are available online for ease of access.[38]

C. Moving between the two types of immunity

In determining the immunity to apply, the Supreme Court has stated that it is the official’s responsibilities, not their title or position, that matter. [39] Thus, because an official’s responsibilities can change, the same official may have qualified immunity for some acts, absolute for others, and even no immunity if the act does not warrant it.[40] For example, a police officer testifying in a trial is entitled to absolute immunity because witnesses (like other officials performing judicial functions) are afforded absolute immunity.[41] But for actions taken to enforce the law, the officer would be entitled only to qualified immunity.[42]

III. Policy Reasons for Immunity or: Why Ignorance of the Law Sometimes is a Defense.

The broad purpose underlying immunity is to ensure government officials can, and do, perform their jobs effectively. Clearly, the threat of liability, or of having to perform “duties in a lawful and appropriate manner, and to pay . . . victims when they . . . [are] not[,]” [43] incentivizes officials to do their jobs effectively. But, “[b]y its nature, . . . the threat of liability can create perverse incentives that operate to inhibit officials in the proper performance of their duties.” [44] Consider that because government officials are “engaged by definition in governing, their decisions will often have adverse effects on other persons.”[45] Thus, “[w]hen officials are threatened with personal liability for acts taken pursuant to their official duties, they may well be induced to act with an excess of caution or otherwise to skew their decisions in ways that result in less” effective governance.[46] If officials are immune, however, they are free to “make decisions that are impartial or imaginative, and that above all are informed by considerations other than the personal interests of the decisionmaker.”[47] Thus, the rules and requirements of Section 1983, which may create liability for government officials, and the immunity rule, which may immunize them from liability, are meant to strike a balance between “the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.”[48] How exactly the rules strike this balance can perhaps be thought of as a microcosm of the government itself, which operates on a system of checks and balances. That Section 1983 creates liability when a right is violated is simple enough, and on its face seems to offer a powerful means to have rights vindicated. But the immunity rule places two checks on that liability by saying that is liability for violated rights but only if (1) the right was clearly established and (2) the violation was not unreasonable.

Whether these checks are too powerful remains a matter of public debate, particularly with respect to police officers. In fact, citizens may debate whether their occupation warrants such strong protection. That is, whether the threat of liability really creates “perverse incentives that operate to inhibit[,]”[49] rather than encourage, proper performance of duties. Most would not deny that a police force is necessary. In fact, there is a word for a society without one: anarchy.[50] And, as it stands now, officers are afforded a great deal of leeway and protection in the performance of their duties. One can debate that this is the freedom necessary to make choices in an occupation where no amount of rules can account for every possible situation. Or conversely, that it is a lack oversight leading to, at best, lackadaisical police work and, at worst, outright abuse. But, for those who have been directly affected, those who have found their rights violated, but with no one held accountable, the answer to such debates is clear.

It may seem as though the immunity rule is just using ignorance of the law as a defense. In fact, the Supreme Court has frequently stated that officials are entitled to fair notice that their conduct violates the law.[51] But, the opposite maxim is considered true by the general public: that ignorance of the law is no excuse.[52] The Supreme Court took an interesting stance recently in Heien v. North Carolina[53] when confronted with the viability of this maxim. In that case, the Court was deciding whether an objectively reasonable mistake of law (as opposed to one of fact) could still give rise to the reasonable suspicion needed to justify an automobile stop.[54] The Court found that it could. [55] (The officer in Heien mistakenly believed the applicable law required two working brake lights and pulled Heien over because he only had one.) In discussing Heien’s reliance on the “well-known” maxim above, and his subsequent argument that “it is fundamentally unfair to let police officers get away with mistakes of law when the citizenry is accorded no such leeway[,]” the Court stated that the true meaning of the phrase is this: “Just as an individual generally cannot escape criminal liability based on a mistaken understanding of the law, so too the government cannot impose criminal liability based on a mistaken understanding of the law.”[56] Thus, “mistakes of law cannot justify either the imposition or the avoidance of criminal liability.”[57] But, the Court stated that even though ignorance could not support the imposition of liability (in other words, that officers could not issue Heien a valid traffic ticket based on the mistake), it could support something less, namely the reasonable suspicion necessary for an automobile stop. [58] In other words, the Court appeared to affirm that “an individual generally cannot escape criminal liability based on a mistaken understanding of the law,”[59] and yet, under the immunity rule “[a]n official enjoys qualified immunity if a reasonable official would be left uncertain of the application of the standard [(in other words, the law)] to the facts confronting him.”[60] Thus, there appears to be a contradiction at work. The Court, of course, would not be so blatantly inconsistent. In Heien, they were quick to point out, albeit without much explanation, [61] that the issue they faced that day (whether a reasonable mistake of law can give rise to reasonable suspicion) was different from the more forgiving objective reasonableness inquiry in the “distinct” context of qualified immunity. [62] Thus, if presented with these seemingly contradictory stances on the role ignorance plays in the judicial system, a court could easily distinguish Heien. Nevertheless, that on its face ignorance of the law seems to be a viable excuse for government officials should give citizens (and perhaps the judiciary) cause for concern.[63]

IV. Conclusion

As discussed above, the protection qualified immunity grants government officials, including police officers, can pose a challenge to plaintiffs. Nevertheless, suing under Section 1983 remains a cornerstone of civil rights protection. Those who feel their rights have been violated should not be discouraged from pursuing legal action, but should instead review the effect the immunity rule may have on their suit with their attorney before moving forward.

[1] 42 U.S.C. § 1983 (2012), available at

[2] Id.

[3] Id.

[5] Graham v. Conner, 490 U.S. 386, 395 (1989) (holding “that all claims that law enforcement officers have used excessive force—deadly or not—in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard).

[6] E.g. , Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

[7] See Georgetown Law Journal, Procedural Means of Enforcement Under 42 U.S.C. § 1983, 44 Geo. L.J. Ann. Rev. Crim. Proc. 1150, 1190 n.3221 (2015) (containing many citations to cases where police officers were entitled to only qualified immunity).

[8] Burns v. Reed, 500 U.S. 478, 489–90 (1991).

[9] Forrester v. White, 484 U.S. 219, 225 (1988) (“As a class, judges have long enjoyed a comparatively sweeping form of immunity . . . .”).

[10] E.g. , Burns at 489–90 (discussing absolute immunity for “witnesses, prosecutors and other lawyers . . . for making false or defamatory statements in judicial proceedings”).

[11] Id. at 230 (internal quotation marks omitted) (citing the lower court decision Forrester v. White, 792 F.2d 647, 660 (7th Cir. 1986) (Posner, J., dissenting)).

[12] See id. at 223–24 (describing the “cautious” and “sparing” application of immunity).

[13] See, e.g. , id. at 489–90 (discussing absolute immunity for “witnesses, prosecutors and other lawyers . . . for making false or defamatory statements in judicial proceedings”) (emphasis added)).

[14] Forrester at 229.

[15] Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).

[16] Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam) (“[W]e repeatedly have stressed the importance of resolving immunity questions at the earliest possible stage in litigation.”).

[17] See discussion infra Part III.

[18] E.g. , Davis v. Scherer, 468 U.S. 183, 191–93 (1984); Anderson v. Creighton, 483 U.S. 635, 638–39 (1987).

[19] E.g. , Davis at 191–93; Finnegan v. Fountain, 915 F.2d 817, 823 (2d Cir. 1990).

[20] Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (“If the law at that time was not clearly established, an official could not reasonably be expected to anticipate subsequent legal developments . . . .”).

[21] Garcia v. Miera, 817 F.2d 650, 656–57 (10th Cir. 1987).

[22] Anderson v. Creighton, 483 U.S. 635, 639–40 (1987).

[23] U.S. Const. amend. IV., available at (“The right of the people to be secure . . . against unreasonable searches and seizures, shall not be violated . . . .”).

[24] Anderson at 639. Anderson was discussing generalized versus particularized rights in the context of the Fourteenth Amendment, but noted that “the same could be said of any other constitutional or statutory violation.” Id.

[25] Id. at 639 (emphasis added).

[26] Id. at 640.

[27] Id. ; Hope v. Pelzer, 536 U.S. 730, 741 (2002). (“[O]fficials can still be on notice that their conduct violates established law even in novel factual circumstances.”).

[28] Anderson at 640.

[29] Garcia v. Miera, 817 F.2d 650, 656–57 (10th Cir. 1987).

[30] Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

[31] Hopkins v. Stice, 916 F.2d 1029, 1031–32 (5th Cir. 1990) (citing Anderson v. Creighton, 483 U.S. 635 (1987)).

[32] Pfannstiel v. City of Marion, 918 F.2d 1178, 1183 (5th Cir. 1990) (citing Malley v. Briggs, 475 U.S. 335, 341 (1986)).

[33] Finnegan v. Fountain, 915 F.2d 817, 823 (2d Cir. 1990). Finnegan noted a “doctrinal tension” at play between the reasonableness standards. Id. at 824 n.11. It was unclear to the Finnegan court whether, in the excessive force context, “a distinction between the reasonableness inquiries underlying a Fourth Amendment claim . . . and [those for] qualified immunity” existed. Id.

[34] Antonio M. Romanucci et al., Defeating Immunity Defenses, Trial, Dec. 2014, at 20, 22.

[35] Pfannstiel v. City of Marion, 918 F.2d 1178, 1183 (5th Cir. 1990) (citing Malley v. Briggs, 475 U.S. 335, 341 (1986)).

[36] Romanucci et al., supra note 33, at 23.

[37] See id .

[38] SFPD policy on use of force generally can be found here: The policy regarding the use of firearms specifically is available here: .

[39] Harlow v. Fitzgerald, 457 U.S. 800, 810 (1982) (discussing the functional approach to applying the immunity rule).

[40] See Harlow at 811 (Immunity is “extended no further than its justification would warrant.”); Milstein v. Cooley, 257 F.3d 1004, 1011–13 (9th Cir. 2001) (finding prosecutors absolutely immune only from some of the charges alleged).

[41] Briscoe v. LaHue, 460 U.S. 325, 342 (1983) (“A police officer on the witness stand performs the same functions as any other witness; he is subject to compulsory process, takes an oath, responds to questions on direct examination and cross-examination, and may be prosecuted subsequently for perjury.”).

[42] See Georgetown Law Journal, supra note 7.

[43] Forrester v. White, 484 U.S. 219, 223 (1988).

[44] Id.

[45] Id.

[46] Id. ; See also Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982) (“Where an official could be expected to know that certain conduct would violate statutory or constitutional rights, he should be made to hesitate; and a person who suffers injury caused by such conduct may have a cause of action. But where an official’s duties legitimately require action in which clearly established rights are not implicated, the public interest may be better served by action taken ‘with independence and without fear of consequences.’”).

[47] Forrester at 223.

[48] Pearson v. Callahan, 555 U.S. 223, 231 (2009); Harlow at 814 (identifying “qualified immunity as the best attainable accommodation of competing values”).

[49] Forrester at 223.

[50] Anarchy , Merriam-Webster, (last visited June 18, 2015).

[51] E.g. , Hope v. Pelzer, 536 U.S. 730, 739–40 (2002).

[52] See Heien v. North Carolina, 135 S. Ct. 530, 540 (2014) (discussing plaintiff’s reliance on the “well-known” maxim).

[53] Heien v. North Carolina, 135 S. Ct. 530 (2014).

[54] Id. at 534.

[55] Id.

[56] Id. at 540.

[57] Id.

[58] Id.

[59] Id.

[60] Hopkins v. Stice, 916 F.2d 1029, 1031–32 (5th Cir. 1990) (citing Anderson v. Creighton, 483 U.S. 635 (1987)).

[61] Heien v. North Carolina, 135 S. Ct. 530, 547 (2014) (Sotomayor, J., dissenting).

[62] Id. at 541. How much more forgiving is unclear. But Justice Kagan’s concurrence, reminding the reader that immunity protects “all but the plainly incompetent or those who knowingly violate the law[,]” Heien v. North Carolina, 135 S. Ct. 530, 540 (2014) (Kagan, J., concurring) (emphasis added) (citing Ashcroft v. al–Kidd, 131 S. Ct. 2074, 2085 (2011)), suggests it is significantly more forgiving to officials.

[63] Indeed a cursory internet search of qualified immunity and ignorance of the law turns up several examples of seemingly unjust implications of the rule. E.g., Second Circuit Civil Rights Blog, When Ignorance of the Law IS an Excuse, Wait A Second! (July 9, 2010), ; Radley Balko, Ignorance of the Law Is No Excuse Unless You Work in Law Enforcement, (Aug. 20, 2010), .