Reconsidering Absolute Prosecutorial Immunity

Brigham Young University Law Review, 2005 by Johns, Margaret Z

In order to enable and encourage a representative of the public to discharge his public trust with firmness and success, it is indispensably necessary, that he should enjoy the fullest liberty of speech, and that he should be protected from the resentment of every one, however powerful, to whom the exercise of that liberty may occasion offence.161

The Court concluded that this historical immunity survived the passage of § 1983, explaining, "We cannot believe that Congressitself 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 [of § 1983]."162

While the Court held that legislative immunity applied in § 1983 actions, it limited its application to conduct within the legislative function that the immunity was designed to protect.163 To protect the legislative function, the Court has applied legislative immunity to nonlegislators when they are performing legislative functions.164 But for acts to be covered, they must be an integral part of the legislative process;165 legislative immunity does not apply to activities outside the legislative function.166

After recognizing absolute legislative immunity, the Court next addressed the issue of judicial immunity in § 1983 actions.167 In Pierson v. Rcty,16& the Court held that judges were also entitled to absolute immunity from liability under § 1983. In the Court's view, "Few doctrines were more solidly established at common law than the immunity of judges from liability for damages for acts committed within their judicial jurisdiction."169 This well-established doctrine was not intended to be abolished by the adoption of § 1983.170 Under this doctrine, judges of courts of general jurisdiction "are not liable to civil actions for their judicial acts, even where such acts are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly."171 As the Court has explained, the policy underlying the immunity was "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."172 As with absolute legislative immunity, absolute judicial immunity is confined to the function it is intended to protect.173

In contrast to the absolute immunity afforded legislators and judges, executive officers-from police officers to governors-receive only qualified immunity.174 As the Court explained in rejecting a claim for absolute executive immunity, the common law never granted police officers absolute immunity but rather afforded them qualified immunity so long as they acted reasonably and in good faith.175 This same qualified immunity, according to the Court, applied as well to high-level executive officers.176 In refusing to extend absolute immunity to police officers, the Court emphasized that its "role is to interpret the intent of Congress in enacting § 1983, not to make a freewheeling policy choice . . . . Since the statute on its face does not provide for any immunities, we would be going far to read into it an absolute immunity for conduct which was only accorded qualified immunity in 1871."177