Qualified immunity vs. absolute immunity: judges, prosecutors, and police

People who have been wrongly charged, convicted, or jailed often ask the same question: why can I sue the officer but not the prosecutor who pushed the case, or the judge who signed the order? The answer is a set of immunities the Supreme Court has read into 42 U.S.C. § 1983, a statute whose text grants no immunity to anyone. Some are absolute. Some are qualified. Knowing which is which explains a great deal about who can be held to account.

I.Two kinds of immunity

Section 1983 says that every person who, under state authority, deprives someone of federal rights “shall be liable” to the injured party. It lists no exceptions for officials. The Supreme Court has nonetheless recognized two kinds of immunity from damages under it.

Qualified immunity is the default for most government officials. Under Harlow v. Fitzgerald, 457 U.S. 800 (1982), officials performing discretionary functions are shielded unless their conduct violated “clearly established statutory or constitutional rights of which a reasonable person would have known.” A plaintiff can, in principle, get past it. How hard that is in practice is the subject of our analysis of Zorn v. Linton, and we will not repeat it here.

Absolute immunity is different in kind. If it applies, it does not matter whether the right was clearly established, whether the official acted in bad faith, or how badly the plaintiff was hurt. The suit for damages is over. Harlow itself treated absolute immunity as the exception: the Court held that senior presidential aides were not entitled to it and received only the qualified version.

II.Judges: immune for judicial acts

In Pierson v. Ray, 386 U.S. 547 (1967), the Court held that the long-established common-law immunity of judges survived the passage of § 1983, reasoning that nothing in the legislative record showed Congress meant to abolish it. Our Zorn piece discusses Pierson’s separate role in creating a good-faith defense for police; here the point is narrower: judges sued under § 1983 start with absolute immunity.

Stump set out the two questions that still define judicial immunity. First, did the judge act in the “clear absence of all jurisdiction”? Acting in excess of authority is not enough to lose immunity; acting with no jurisdiction at all is. Second, was the act judicial? That depends on whether it is “a function normally performed by a judge” and whether the parties “dealt with the judge in his judicial capacity.” The dissenters argued that approving a secret petition, with no case, no adversary, and no notice to the person most affected, was not a judicial act in any meaningful sense. The majority disagreed, and the young woman was left without a damages remedy against the judge.

That focus on the act rather than the actor runs through every absolute-immunity case. The Court has described its method as a “functional approach,” tracing the label to Forrester v. White, 484 U.S. 219 (1988).

III.Prosecutors: advocates, not investigators

In Imbler v. Pachtman, 424 U.S. 409 (1976), the Court held that prosecutors are absolutely immune from § 1983 damages for conduct “intimately associated with the judicial phase of the criminal process,” such as initiating a prosecution and presenting the state’s case. Its reasons, as the Court later summarized them, were that harassing suits would divert prosecutors’ energy from their duties and could pressure them to shade their decisions.

The limits came later. In Buckley v. Fitzsimmons, 509 U.S. 259 (1993), the Court held that a prosecutor accused of fabricating evidence about an unsolved crime, during the investigative stage of the case, was entitled only to qualified immunity. When a prosecutor does the work of a detective, the prosecutor gets a detective’s protection. And in Kalina v. Fletcher, 522 U.S. 118 (1997), a prosecutor who personally vouched for the facts in a sworn certification supporting an arrest warrant was treated like a complaining witness and received only qualified immunity.

But the advocacy shield is wide. In Van de Kamp v. Goldstein, 555 U.S. 335 (2009), Thomas Goldstein had been convicted of murder largely on the testimony of a jailhouse informant whose deals with prosecutors were never disclosed to the defense. After he won release on federal habeas, he sued the supervising prosecutors for failing to train and supervise their staff and for failing to keep an information system about informants. A unanimous Court, in an opinion by Justice Breyer, held those supervisors absolutely immune, because the training and record-keeping he challenged were tied directly to how trials are conducted. The Court acknowledged that immunity “may not apply when a prosecutor is not acting as ‘an officer of the court,’ but is instead engaged in” investigative or administrative tasks; it simply found that these tasks were neither.

IV.Police officers: qualified on the street, absolute on the stand

Police officers ordinarily get qualified immunity, which is why most police misconduct cases turn on whether the law was clearly established. But in Briscoe v. LaHue, 460 U.S. 325 (1983), the Court held that witnesses at trial are absolutely immune from § 1983 claims based on their testimony, and it refused to treat police officer witnesses differently from anyone else. In Rehberg v. Paulk, 566 U.S. 356 (2012), a unanimous Court extended the same protection to grand jury witnesses.

The line is drawn at testimony itself. In Malley v. Briggs, 475 U.S. 335 (1986), officers who applied for arrest warrants with affidavits that allegedly lacked probable cause were denied absolute immunity and received only qualified immunity. Rehberg was explicit that its rule does not cover everything a witness does outside the grand jury room: officials who falsify affidavits, and those who fabricate evidence, are still protected only by qualified immunity.

V.Legislators: immune for legislating

In Bogan v. Scott-Harris, 523 U.S. 44 (1998), the Court held that local legislators are absolutely immune from § 1983 suits for their legislative activities. Janet Scott-Harris, a city employee, alleged that officials eliminated her position through a city ordinance for unconstitutional reasons. The Court held that the defendants, including the mayor, were immune because introducing a budget and signing an ordinance were “integral steps in the legislative process.” It added that “whether an act is legislative turns on the nature of the act, rather than on the motive or intent of the official performing it.” The Court noted that “municipalities themselves can be held liable for constitutional violations,” a reminder that legislative immunity protects individual officials, not cities.

VI.Function, not title

Put the cases together and a single rule emerges. The Court asks what the official was doing when the alleged violation happened, then looks to the common law for functions that were historically protected because they were especially vulnerable to retaliatory litigation. Judging, advocating in court, testifying, and legislating qualify. Investigating, swearing out warrants, managing staff on matters unconnected to trials, and policing generally do not.

The functional test has a logic that defenders find persuasive: judges, prosecutors, and witnesses work inside a system with its own checks, such as appeals, cross-examination, and perjury law, and exposing them to personal suits could chill the independent judgment the system depends on. Critics answer that those checks often fail precisely in the cases that matter most, as when evidence is hidden from the defense, and that the injured person is left with no damages remedy at all. Both points can be true. Whether the balance is right is a question for the people who write the law.

Editorial note: This analysis is built from the cited opinions listed below. It is journalism and advocacy, not legal advice. If you believe your rights were violated, talk to a licensed civil-rights attorney in your state. Corrections: contact the editor.