Judicial Immunity

Sitting en banc, the court held that a judge and prosecutor are absolutely immune even against allegations that they conspired to predetermine the outcome of a case; a conspiracy or bribe does not pierce immunity if the underlying acts are judicial. The court expressly rejected the contrary approach of Rankin v. Howard.

“[A] conspiracy between judge and prosecutor to predetermine the outcome of a judicial proceeding, while clearly improper, nevertheless does not pierce the immunity extended to judges and prosecutors.” — Ashelman v. Pope, 793 F.2d 1072, 1078 (9th Cir. 1986) (en banc).

“[A]llegations that a conspiracy produced a certain decision should no more pierce the actor's immunity than allegations of bad faith, personal interest or outright malevolence.” — Ashelman v. Pope, 793 F.2d 1072, 1078 (9th Cir. 1986) (en banc) (citation omitted).

Federal judges are absolutely immune from damages, and — after the Federal Courts Improvement Act of 1996 — § 1983 now bars even injunctive relief against a judicial officer for acts taken in a judicial capacity, unless a declaratory decree was violated or declaratory relief was unavailable. This narrowed the accountability window that Pulliam v. Allen had opened.

“In 1996, Congress ... amended § 1983 to provide that 'injunctive relief shall not be granted' in an action brought against 'a judicial officer for an act or omission taken in such officer's judicial capacity ... unless a declaratory decree was violated or declaratory relief was unavailable.'” — Bolin v. Story, 225 F.3d 1234, 1242 (11th Cir. 2000) (quoting the Federal Courts Improvement Act of 1996).

Sitting en banc, the court held that a judge who acts in his judicial capacity and has subject-matter jurisdiction is absolutely immune — even if he lacked personal jurisdiction and even if he acted erroneously or in bad faith. The judge who granted an ex parte custody order was immune.

“[A] judge who possesses subject matter jurisdiction is not within the 'clear absence of all jurisdiction' posture which would deprive him of the use of the defense of judicial immunity.” — Dykes v. Hosemann, 776 F.2d 942, 950 (11th Cir. 1985) (en banc).

A judge who set an allegedly excessive bond and misled the defendant about it was nonetheless absolutely immune, because setting bond is a judicial act within the court's subject-matter jurisdiction. Acts within jurisdiction are immune even if done in excess of authority or improperly.

“Provided that they do not engage in non-judicial acts or act in the clear absence of all jurisdiction, judges presiding over courts of general jurisdiction are absolutely immune from suits for damages even if they act erroneously, corruptly or in excess of jurisdiction.” — King v. Love, 766 F.2d 962, 965 (6th Cir. 1985).

“[W]here a judge of a court of limited jurisdiction engages in judicial acts in deciding a case over which the court has subject matter jurisdiction, he is absolutely immune from suits for damages even if he exceeds his authority or his jurisdiction.” — King v. Love, 766 F.2d 962, 968 (6th Cir. 1985).

An early Supreme Court statement that judges of general jurisdiction are not civilly liable for their judicial acts, even acts in excess of jurisdiction, absent (perhaps) malice or corruption. A precursor to Bradley v. Fisher.

“[Judges of superior or general jurisdiction] are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction, unless perhaps where the acts, in excess of jurisdiction, are done maliciously or corruptly. This doctrine is as old as the law, and its maintenance is essential to the impartial administration of justice.” — Randall v. Brigham, 74 U.S. (7 Wall.) 523, 536 (1868).

The foundational American case on judicial immunity. Judges of general jurisdiction are absolutely immune from civil liability for judicial acts, even acts done maliciously or corruptly and even in excess of jurisdiction; immunity is lost only in the 'clear absence of all jurisdiction.' The Court reasoned that the remedy for judicial corruption is impeachment, not a private lawsuit.

“[J]udges of courts of superior or general jurisdiction are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly. A distinction must be here observed between excess of jurisdiction and the clear absence of all jurisdiction over the subject-matter.” — Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 351–52 (1872).

“If in the exercise of the powers with which they are clothed as ministers of justice, they act with partiality, or maliciously, or corruptly, or arbitrarily, or oppressively, they may be called to an account by impeachment and suspended or removed from office.” — Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 350 (1872).

“[W]here it is alleged not only that his proceeding was in excess of jurisdiction, but that he acted maliciously and corruptly[,] ... he is, in my opinion, subject to suit the same as a private person would be under like circumstances.” — Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 357 (1872) (Davis, J., dissenting).

Legislative immunity. The Court held that § 1983 did not abrogate the common-law absolute immunity of legislators for acts within the sphere of legitimate legislative activity, and that an 'unworthy purpose' does not defeat the privilege. This is the doctrinal root of the rule — later applied to judges and prosecutors — that the general language of § 1983 left pre-existing immunities intact.

“We cannot believe that Congress—itself a staunch advocate of legislative freedom—would impinge on a tradition so well grounded in history and reason by covert inclusion in the general language before us.” — Tenney v. Brandhove, 341 U.S. 367, 376 (1951).

“The claim of an unworthy purpose does not destroy the privilege. Legislators are immune from deterrents to the uninhibited discharge of their legislative duty, not for their private indulgence but for the public good.” — Tenney v. Brandhove, 341 U.S. 367, 377 (1951).

Note / Caveat: Adjacent doctrine: legislative (not judicial) immunity, but the foundational authority for the judicial-immunity line of cases.

The Court held that 42 U.S.C. § 1983 did not abolish the common-law absolute immunity of judges. A municipal judge who convicted civil-rights demonstrators under an unconstitutional statute could not be sued for damages, even if he acted maliciously and corruptly.

“[This immunity applies] even when the judge is accused of acting maliciously and corruptly, and it 'is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences.'” — Pierson v. Ray, 386 U.S. 547, 554 (1967).

“I do not think that all judges, under all circumstances, no matter how outrageous their conduct[,] are immune from suit under [§ 1983].” — Pierson v. Ray, 386 U.S. 547, 559 (1967) (Douglas, J., dissenting).

Extending the logic of judicial immunity, the Court held that prosecutors have absolute immunity from § 1983 damages for conduct 'intimately associated with the judicial phase of the criminal process' — even the knowing use of perjured testimony. The Court openly acknowledged that this leaves some wronged defendants with no civil remedy.

“[A] prosecutor enjoys absolute immunity from § 1983 suits for damages when he acts within the scope of his prosecutorial duties.” — Imbler v. Pachtman, 424 U.S. 409, 420 (1976).

“To be sure, this immunity does leave the genuinely wronged defendant without civil redress against a prosecutor whose malicious or dishonest action deprives him of liberty.” — Imbler v. Pachtman, 424 U.S. 409, 427 (1976).

Note / Caveat: Adjacent doctrine: prosecutorial immunity, derived directly from judicial immunity.

While most executive officials receive only qualified immunity, the Court extended ABSOLUTE immunity to agency officials who perform adjudicatory or prosecutorial functions within a federal agency (administrative law judges, agency prosecutors), reasoning that their functions are 'functionally comparable' to those of judges and prosecutors.

“[P]ersons ... performing adjudicatory functions within a federal agency are entitled to absolute immunity from damages liability for their judicial acts. Those who complain of error in such proceedings must seek agency or judicial review.” — Butz v. Economou, 438 U.S. 478, 514 (1978).

“Judges have absolute immunity not because of their particular location within the Government but because of the special nature of their responsibilities.” — Butz v. Economou, 438 U.S. 478, 511 (1978).

Note / Caveat: Adjacent doctrine: extends judicial-style absolute immunity to agency adjudicators.

The most notorious application of judicial immunity. A judge approved an ex parte petition to sterilize a 15-year-old girl, who was told she was having an appendectomy and discovered the truth years later when she could not conceive. The Court held the judge absolutely immune because approving the petition was a 'judicial act' and he was not acting in the clear absence of all jurisdiction.

“A judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority; rather, he will be subject to liability only when he has acted in the 'clear absence of all jurisdiction.'” — Stump v. Sparkman, 435 U.S. 349, 356–57 (1978).

“[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).

“[W]hat Judge Stump did on July 9, 1971, was in no way an act 'normally performed by a judge.' Indeed, there is no reason to believe that such an act has ever been performed by any other Indiana judge, either before or since.” — Stump v. Sparkman, 435 U.S. 349, 367 (1978) (Stewart, J., dissenting).

A judge who allegedly issued an injunction as the result of a bribe and corrupt conspiracy was still absolutely immune from § 1983 damages. However, the private parties who bribed/conspired with the judge were NOT immune and could be sued, because they acted under color of law.

“[T]he judge was immune from liability in a § 1983 suit, whether or not the injunction had issued as the result of a corrupt conspiracy.” — Dennis v. Sparks, 449 U.S. 24, 26–27 (1980).

“[A] private party involved in such a conspiracy, even though not an official of the State, can be liable under § 1983. 'Private persons, jointly engaged with state officials in the prohibited action, are acting "under color" of law for purposes of the statute.'” — Dennis v. Sparks, 449 U.S. 24, 27–28 (1980).

Note / Caveat: AMBIGUOUS / FITS BOTH CATEGORIES: The judge's own absolute immunity (upheld even for a bribed ruling) is a striking 'no accountability' holding; but the case is also cited for the accountability principle that private parties who corrupt a judge remain liable. Flagged per instructions rather than forced cleanly into one bucket.

A state supreme court and its chief justice were absolutely immune — under legislative immunity — for promulgating attorney disciplinary rules, and would have judicial immunity for adjudicative acts. (They remained subject to suit only in their independent enforcement capacity.) The Court reversed an attorney's-fee award premised on acts for which the justices were immune.

“[T]he Virginia Court and its members are immune from suit when acting in their legislative capacity.” — Supreme Court of Virginia v. Consumers Union, 446 U.S. 719, 734 (1980).

A judge allegedly ordered police officers to seize a public defender and bring him to court 'with excessive force.' The Court (per curiam, summarily reversing) held the judge absolutely immune: immunity is not overcome by allegations of bad faith or malice, and a judge is not stripped of immunity merely because an action was in error or in excess of authority.

“If judicial immunity means anything, it means that a judge 'will not be deprived of immunity because the action he took was in error ... or was in excess of his authority.'” — Mireles v. Waco, 502 U.S. 9, 12–13 (1991) (per curiam) (quoting Stump).

“Ordering a battery has no relation to a function normally performed by a judge.” — Mireles v. Waco, 502 U.S. 9, 16 (1991) (Stevens, J., dissenting).

Supervisory prosecutors are absolutely immune from § 1983 claims that they failed to train or supervise line prosecutors, or to establish an information system to track impeachment material (Giglio evidence) — even where those failures allegedly led to a wrongful conviction — because the claims are connected to the prosecutorial function.

“We conclude that a prosecutor's absolute immunity extends to all these claims.” — Van de Kamp v. Goldstein, 555 U.S. 335, 337 (2009).

“[P]rosecutors involved in such supervision or training or information-system management enjoy absolute immunity from the kind of legal claims at issue here.” — Van de Kamp v. Goldstein, 555 U.S. 335, 349 (2009).

Note / Caveat: Adjacent doctrine: prosecutorial immunity, extended to supervisory/administrative failures.

A grand jury witness — including a law-enforcement 'complaining witness' — has absolute immunity from any § 1983 claim based on the witness's testimony, and cannot be sued even for allegedly conspiring to present false testimony to the grand jury.

“[A] grand jury witness has absolute immunity from any § 1983 claim based on the witness' testimony.” — Rehberg v. Paulk, 566 U.S. 356, 369 (2012).

“[T]his rule may not be circumvented by claiming that a grand jury witness conspired to present false testimony or by using evidence of the witness' testimony to support any other § 1983 claim concerning the initiation or maintenance of a prosecution.” — Rehberg v. Paulk, 566 U.S. 356, 369 (2012).

Note / Caveat: Adjacent doctrine: witness immunity, part of the family of absolute immunities shielding participants in the judicial process.

A municipal judge (who was also mayor) was absolutely immune only for his judicial acts; he could be held liable under the civil rights statutes for non-judicial conspiratorial conduct (an alleged campaign to destroy a newspaper). Immunity turns on whether the specific acts were judicial.

“Municipal Judge Harold Ward is absolutely immune from liability under the civil rights acts for his conduct unless the jury could have found that certain of his acts were not judicial.” — Crowe v. Lucas, 595 F.2d 985, 990 (5th Cir. 1979).

A justice of the peace who physically assaulted and forcibly ejected a member of the public from the courtroom was not protected by judicial immunity, because using physical force to evict a person is not an act of a judicial nature.

“To forcibly evict someone from a courtroom by the use of physical force is simply not an act of a judicial nature, and is not such as to require insulation in order that the decision be deliberately reached. A judicial act within the meaning of the doctrine may normally be corrected on appeal.” — Gregory v. Thompson, 500 F.2d 59, 64 (9th Cir. 1974).

A judge who had a man seized and jailed for 'contempt' during a personal dispute over the man's ex-wife's employment — when no case was pending before the judge — was NOT entitled to judicial immunity, because his acts were not 'judicial acts.'

“[W]hen ... it further appears certain that no party has invoked the judicial machinery for any purpose at all, then the judge's actions do not amount to 'judicial acts.' These nonjudicial acts, to state the obvious, are not cloaked with judicial immunity from suit under § 1983.” — Harper v. Merckle, 638 F.2d 848, 858–59 (5th Cir. 1981).

“We find, accordingly, that Judge Merckle should not be accorded absolute judicial immunity because his acts were not 'judicial acts.'” — Harper v. Merckle, 638 F.2d 848, 859 (5th Cir. 1981).

A state judge was held personally liable for a racially motivated, extrajudicial campaign (press statements and communications to officials) to discredit and remove a Black police lieutenant. Judicial immunity does not extend to acts that are not judicial functions, even when committed by a judge under color of office. The judgment against the judge, including compensatory and punitive damages, was affirmed.

“Neither Judicial Nor Prosecutorial Immunity Protects the Acts for Which Defendant Was Held Liable.” — Harris v. Harvey, 605 F.2d 330, 336 (7th Cir. 1979) (section heading).

“[I]mmunity does not apply because Judge Harvey was not performing judicial functions. We also agree that nonetheless Judge Harvey was acting under color of law by using the power and prestige of his state office.” — Harris v. Harvey, 605 F.2d 330, 337 (7th Cir. 1979).

A judge who stepped out of his neutral judicial role to act as a prosecutor (filing charges and prosecuting a tenant) was absolutely immune for his judicial acts (arraigning, convicting, sentencing) but NOT immune for his prosecutorial acts. Judicial immunity protects only judicial functions, not other roles a judge chooses to assume.

“Vanderwater is absolutely immune from suit under 42 U.S.C. § 1983 for his acts of arraigning, convicting, and sentencing Lopez.” — Lopez v. Vanderwater, 620 F.2d 1229, 1234 (7th Cir. 1980).

“Because Vanderwater is not immune from liability for his prosecutorial acts, and because those acts were an integral part of his unlawful course of conduct, we reverse the summary judgment in his favor.” — Lopez v. Vanderwater, 620 F.2d 1229, 1236 (7th Cir. 1980).

A chief judge who declared a moratorium halting the issuance of writs of restitution for part of the year was performing an administrative, not judicial, act; judicial immunity therefore did not apply. Applying Forrester, the court distinguished rule-making/administrative authority from adjudication.

“We hold, then, that the Shakoor order was an administrative, not judicial, act and that absolute immunity does not apply.” — Morrison v. Lipscomb, 877 F.2d 463, 466 (6th Cir. 1989).

The panel held that a judge who acted in the clear absence of personal jurisdiction, and who allegedly conspired with a private party to reach a predetermined result, was not entitled to absolute immunity.

“[S]tate judges are immune from § 1983 liability for 'judicial' acts not taken in the 'clear absence of all jurisdiction.'” — Rankin v. Howard, 633 F.2d 844, 847 (9th Cir. 1980) (quoting Stump v. Sparkman).

Note / Caveat: PARTIALLY OVERRULED: The Ninth Circuit, sitting en banc in Ashelman v. Pope, 793 F.2d 1072 (9th Cir. 1986), rejected Rankin's rule that a conspiracy allegation can strip a judge of immunity. Rankin remains cited for the personal-jurisdiction point but its conspiracy holding is no longer good law in the Ninth Circuit.

The court reversed a dismissal that had been granted on judicial-immunity grounds. Applying Pulliam, it held immunity does not bar injunctive relief, and it remanded the damages claim, recognizing that a judge is not immune for acts taken outside his judicial role (such as acting as a complaining party).

“The Supreme Court has recently decided that the doctrine of judicial immunity does not protect state judicial officers ... from suits for injunctive relief.” — Sevier v. Turner, 742 F.2d 262, 270 (6th Cir. 1984).

“The district court held that the doctrine of judicial immunity precluded any award of damages against the defendants. We disagree and remand the case ... for further proceedings on the damages claim.” — Sevier v. Turner, 742 F.2d 262, 272 (6th Cir. 1984).

Note / Caveat: Mixed result: the judge retained immunity for genuinely judicial acts, but the court refused to treat immunity as a complete bar to the suit.

A state judge who excluded Black citizens from jury service was subject to federal criminal prosecution. The Court characterized the selection of jurors as a ministerial act, not a judicial one, establishing early that a judge's non-adjudicative acts are not shielded and that immunity is no bar to criminal liability. The Supreme Court still cites Ex parte Virginia for the rule that administrative/ministerial acts are not 'judicial acts' (see Forrester v. White, 484 U.S. at 228).

“Whether the act done by [the judge] was judicial or not is immaterial. ... [The selection of jurors] is merely a ministerial act, as much so as the act of a sheriff holding an execution, in determining upon what piece of property he will make a levy, or the act of a roadmaster in selecting laborers to work upon the roads.” — Ex parte Virginia, 100 U.S. 339, 348 (1880).

Judicial immunity does not bar prospective injunctive relief against a judge acting in a judicial capacity, nor does it bar an award of attorney's fees under 42 U.S.C. § 1988. The case upheld an injunction and fee award against a magistrate who jailed people who could not make bail on non-jailable offenses.

“We conclude that judicial immunity is not a bar to prospective injunctive relief against a judicial officer acting in her judicial capacity.” — Pulliam v. Allen, 466 U.S. 522, 541–42 (1984).

Note / Caveat: SUPERSEDED IN PART BY STATUTE: The Federal Courts Improvement Act of 1996 amended § 1983 to bar injunctive relief against a judicial officer for acts taken in a judicial capacity 'unless a declaratory decree was violated or declaratory relief was unavailable.' See Bolin v. Story, 225 F.3d 1234 (11th Cir. 2000). Pulliam's reasoning on the scope of common-law immunity remains influential.

Members of a federal prison Institution Discipline Committee who adjudicate inmate misconduct are entitled only to qualified immunity, not the absolute immunity enjoyed by judges. Absolute immunity depends on the function performed, not the actor's title or position.

“Absolute immunity flows not from rank or title or 'location within the Government,' but from the nature of the responsibilities of the individual official.” — Cleavinger v. Saxner, 474 U.S. 193, 201 (1985) (citation omitted).

A judge is NOT entitled to absolute immunity for administrative acts. A unanimous Court held that a judge who demoted and dismissed a probation officer (allegedly because of her sex) was acting in an administrative capacity, not a judicial one, and so could be sued. The Court adopted a 'functional' approach that reserves absolute immunity for 'truly judicial acts.'

“The decided cases ... 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.” — Forrester v. White, 484 U.S. 219, 227 (1988).

“In the case before us, we think it clear that Judge White was acting in an administrative capacity when he demoted and discharged Forrester.” — Forrester v. White, 484 U.S. 219, 229 (1988).

A court reporter who failed to produce a transcript is not protected by absolute (quasi-judicial) immunity, only qualified immunity. Court reporters do not exercise the discretionary judgment that the doctrine of judicial immunity is designed to protect.

“[C]ourt reporters do not exercise the kind of judgment that is protected by the doctrine of judicial immunity.” — Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 437 (1993).

“Court reporters were not among the class of persons protected by judicial immunity in the 19th century.” — Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 433 (1993).

A sitting state judge was criminally prosecuted under 18 U.S.C. § 242 for sexually assaulting women in his chambers. The Court addressed the standard of 'fair warning' for § 242 and remanded; the decision confirms that judicial immunity is a civil-damages doctrine that provides no shield against criminal prosecution for a judge who violates constitutional rights under color of law. (On remand the conviction was reinstated.)

“Section 242 is a Reconstruction Era civil rights statute making it criminal to act (1) 'willfully' and (2) under color of law (3) to deprive a person of rights protected by the Constitution or laws of the United States.” — United States v. Lanier, 520 U.S. 259, 264 (1997).