A. Absolute Immunity

PIERSON v. RAY, 386 U.S. 547 (1967)

Mr. Chief Justice Warren delivered the opinion of the Court.

[1]These cases present issues involving the liability of local police officers and judges under § 1 of the Civil Rights Act of 1871, 17 Stat. 13, now 42 U.S.C. § 1983. Petitioners in No. 79 were members of a group of 15 white and Negro Episcopal clergymen who attempted to use segregated facilities at an interstate bus terminal in Jackson, Mississippi, in 1961. They were arrested by respondents Ray, Griffith, and Nichols, policemen of the City of Jackson, and charged with violating § 2087.5 of the Mississippi Code, which makes guilty of a misdemeanor anyone who congregates with others in a public place under circumstances such that a breach of the peace may be occasioned thereby, and refuses to move on when ordered to do so by a police officer. Petitioners waived a jury trial and were convicted of the offense by respondent Spencer, a municipal police justice. They were each given the maximum sentence of four months in jail and a fine of $200. On appeal petitioner Jones was accorded a trial de novo in the County Court, and after the city produced its evidence the court granted his motion for a directed verdict. The cases against the other petitioners were then dropped.

[2]Having been vindicated in the County Court, petitioners brought this action for damages in the United States District Court for the Southern District of Mississippi, Jackson Division, alleging that respondents had violated § 1983, supra, and that respondents were liable at common law for false arrest and imprisonment. A jury returned verdicts for respondents on both counts. On appeal, the Court of Appeals for the Fifth Circuit held that respondent Spencer was immune from liability under both § 1983 and the common law of Mississippi for acts committed within his judicial jurisdiction. 352 F.2d 213. As to the police officers, the court noted that § 2087.5 of the Mississippi Code was held unconstitutional as applied to similar facts in Thomas v. Mississippi, 380 U.S. 524 (1965).^[1] Although Thomas was decided years after the arrest involved in this trial, the court held that the policemen would be liable in a suit under § 1983 for an unconstitutional arrest even if they acted in good faith and with probable cause in making an arrest under a state statute not yet held invalid. The court believed that this stern result was required by Monroe v. Pape, 365 U.S. 167 (1961). Under the count based on the common law of Mississippi, however, it held that the policemen would not be liable if they had probable cause to believe that the statute had been violated, because Mississippi law does not require police officers to predict at their peril which state laws are constitutional and which are not. Apparently dismissing the common-law claim, ^[2] the Court of Appeals reversed and remanded for a new trial on the § 1983 claim against the police officers because defense counsel had been allowed to cross-examine the ministers on various irrelevant and prejudicial matters, particularly including an alleged convergence of their views on racial justice with those of the Communist Party. At the new trial, however, the court held that the ministers could not recover if it were proved that they went to Mississippi anticipating that they would be illegally arrested because such action would constitute consent to the arrest under the principle of volenti non fit injuria, he who consents to a wrong cannot be injured.

[3]We granted certiorari in No. 79 to consider whether a local judge is liable for damages under § 1983 for an unconstitutional conviction and whether the ministers should be denied recovery against the police officers if they acted with the anticipation that they would be illegally arrested. We also granted the police officers’ petition in No. 94 to determine if the Court of Appeals correctly held that they could not assert the defense of good faith and probable cause to an action under § 1983 for unconstitutional arrest. ^[3]

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[4]We find no difficulty in agreeing with the Court of Appeals that Judge Spencer is immune from liability for damages for his role in these convictions. The record is barren of any proof or specific allegation that Judge Spencer played any role in these arrests and convictions other than to adjudge petitioners guilty when their cases came before his court. 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, as this Court recognized when it adopted the doctrine, in Bradley v. Fisher, 80 U.S. 335 (1872). 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.” (Scott v. Stansfield, L.R. 3 Ex. 220, 223 (1868), quoted in Bradley v. Fisher, supra, 349, note, at 350.) It is a judge’s duty to decide all cases within his jurisdiction that are brought before him, including controversial cases that arouse the most intense feelings in the litigants. His errors may be corrected on appeal, but he should not have to fear that unsatisfied litigants may hound him with litigation charging malice or corruption. Imposing such a burden on judges would contribute not to principled and fearless decision-making but to intimidation.

[5]We do not believe that this settled principle of law was abolished by § 1983, which makes liable “every person” who under color of law deprives another person of his civil rights. The legislative record gives no clear indication that Congress meant to abolish wholesale all common-law immunities. Accordingly, this Court held in Tenney v. Brandhove, 341 U.S. 367 (1951), that the immunity of legislators for acts within the legislative role was not abolished. The immunity of judges for acts within the judicial role is equally well established, and we presume that Congress would have specifically so provided had it wished to abolish the doctrine.

[6]The common law has never granted police officers an absolute and unqualified immunity, and the officers in this case do not claim that they are entitled to one. Their claim is rather that they should not be liable if they acted in good faith and with probable cause in making an arrest under a statute that they believed to be valid. Under the prevailing view in this country a peace officer who arrests someone with probable cause is not liable for false arrest simply because the innocence of the suspect is later proved.  RESTATEMENT, (SECOND), TORTS § 121 (1965); 1 HARPER & JAMES, THE LAW OF TORTS § 3.18, at 277-278 (1956); Ward v. Fidelity & Deposit Co. of Maryland, 179 F.2d 327 (C.A. 8th Cir. 1950). A policeman’s lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause, and being mulcted in damages if he does. Although the matter is not entirely free from doubt, the same consideration would seem to require excusing him from liability for acting under a statute that he reasonably believed to be valid but that was later held unconstitutional, on its face or as applied.

[7]The Court of Appeals held that the officers had such a limited privilege under the common law of Mississippi, and indicated that it would have recognized a similar privilege under § 1983 except that it felt compelled to hold otherwise by our decision in Monroe v. Pape, 365 U.S. 167 (1961). Monroe v. Pape presented no question of immunity, however, and none was decided.

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[8]We also held that the complaint should not be dismissed for failure to state that the officers had “a specific intent to deprive a person of a federal right,” but this holding, which related to requirements of pleading, carried no implications as to which defenses would be available to the police officers. As we went on to say in the same paragraph, § 1983 “should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions.” 365 U.S., at 187. Part of the background of tort liability, in the case of police officers making an arrest, is the defense of good faith and probable cause.

[9]We hold that the defense of good faith and probable cause, which the Court of Appeals found available to the officers in the common-law action for false arrest and imprisonment, is also available to them in the action under § 1983. This holding does not, however, mean that the count based thereon should be dismissed. The Court of Appeals ordered dismissal of the common-law count on the theory that the police officers were not required to predict our decision in Thomas v. Mississippi, 380 U.S. 524. We agree that a police officer is not charged with predicting the future course of constitutional law. But the petitioners in this case did not simply argue that they were arrested under a statute later held unconstitutional. They claimed and attempted to prove that the police officers arrested them solely for attempting to use the “White Only” waiting room, that no crowd was present, and that no one threatened violence or seemed about to cause a disturbance. The officers did not defend on the theory that they believed in good faith that it was constitutional to arrest the ministers solely for using the waiting room. Rather, they claimed and attempted to prove that they did not arrest the ministers for the purpose of preserving the custom of segregation in Mississippi, but solely for the purpose of preventing violence. They testified, in contradiction to the ministers, that a crowd gathered and that imminent violence was likely. If the jury believed the testimony of the officers and disbelieved that of the ministers, and if the jury found that the officers reasonably believed in good faith that the arrest was constitutional, then a verdict for the officers would follow even though the arrest was in fact unconstitutional. The jury did resolve the factual issues in favor of the officers but, for reasons previously stated, its verdict was influenced by irrelevant and prejudicial evidence. Accordingly, the case must be remanded to the trial court for a new trial.

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Mr. Justice Douglas, dissenting.

[10]I do not think that all judges, under all circumstances, no matter how outrageous their conduct are immune from suit under 17 Stat. 13, 42 U.S.C. § 1983. The Court’s ruling is not justified by the admitted need for a vigorous and independent judiciary, is not commanded by the common-law doctrine of judicial immunity, and does not follow inexorably from our prior decisions.

[11]The statute, which came on the books as § 1 of the Ku Klux Klan Act of April 20, 1871, 17 Stat. 13, provides that “every person” who under color of state law or custom “subjects, or causes to be subjected, any citizen … 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.” To most, “every person” would mean every person, not every person except judges. Despite the plain import of those words, the Court decided in Tenney v. Brandhove, 341 U.S. 367, that state legislators are immune from suit as long as the deprivation of civil rights which they caused a person occurred while the legislators “were acting in a field where legislators traditionally have power to act.” Id., at 379. I dissented from the creation of that judicial exception as I do from the creation of the present one.

[12]The congressional purpose seems to me to be clear. A condition of lawlessness existed in certain of the States, under which people were being denied their civil rights. Congress intended to provide a remedy for the wrongs being perpetrated. And its members were not unaware that certain members of the judiciary were implicated in the state of affairs which the statute was intended to rectify. It was often noted that “immunity is given to crime, and the records of the public tribunals are searched in vain for any evidence of effective redress.” Cong. Globe, 42d Cong., 1st Sess., 374.

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[13]It is said that, at the time of the statute’s enactment, the doctrine of judicial immunity was well settled and that Congress cannot be presumed to have intended to abrogate the doctrine since it did not clearly evince such a purpose. This view is beset by many difficulties. It assumes that Congress could and should specify in advance all the possible circumstances to which a remedial statute might apply and state which cases are within the scope of a statute.

“Underlying [this] view is an atomistic conception of intention, coupled with what may be called a pointer theory of meaning. This view conceives the mind to be directed toward individual things, rather than toward general ideas, toward distinct situations of fact rather than toward some significance in human affairs that these situations may share. If this view were taken seriously, then we would have to regard the intention of the draftsman of a statute directed against ‘dangerous weapons’ as being directed toward an endless series of individual objects: revolvers, automatic pistols, daggers, Bowie knives, etc. If a court applies the statute to a weapon its draftsman had not thought of, then it would be ‘legislating,’ not ‘interpreting,’ as even more obviously it would be if it were to apply the statute to a weapon not yet invented when the statute was passed.”  FULLER, THE MORALITY OF LAW 84 (1964).

[14]Congress of course acts in the context of existing common-law rules, and in construing a statute a court considers the “common law before the making of the Act.” Heydon’s Case, 3 Co. Rep. 7 a, 76 Eng. Rep. 637 (Ex. 1584). But Congress enacts a statute to remedy the inadequacies of the pre-existing law, including the common law. It cannot be presumed that the common law is the perfection of reason, is superior to statutory law (SEDGWICK, CONSTRUCTION OF STATUTES 270 (1st ed. 1857)); Pound, Common Law and Legislation, 21 HARV. L. REV. 383, 404-406 (1908)), and that the legislature always changes law for the worse. Nor should the canon of construction “statutes in derogation of the common law are to be strictly construed” be applied so as to weaken a remedial statute whose purpose is to remedy the defects of the pre-existing law.

[15]The position that Congress did not intend to change the common-law rule of judicial immunity ignores the fact that every member of Congress who spoke to the issue assumed that the words of the statute meant what they said and that judges would be liable. Many members of Congress objected to the statute because it imposed liability on members of the judiciary.

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[16]Yet despite the repeated fears of its opponents, and the explicit recognition that the section would subject judges to suit, the section remained as it was proposed: it applied to “any person.” ^[4]

There was no exception for members of the judiciary. In light of the sharply contested nature of the issue of judicial immunity it would be reasonable to assume that the judiciary would have been expressly exempted from the wide sweep of the section, if Congress had intended such a result.

[17]The section’s purpose was to provide redress for the deprivation of civil rights. It was recognized that certain members of the judiciary were instruments of oppression and were partially responsible for the wrongs to be remedied. The parade of cases coming to this Court shows that a similar condition now obtains in some of the States. Some state courts have been instruments of suppression of civil rights. The methods may have changed; the means may have become more subtle; but the wrong to be remedied still exists.

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[18]The immunity which the Court today grants the judiciary is not necessary to preserve an independent judiciary. If the threat of civil action lies in the background of litigation, so the argument goes, judges will be reluctant to exercise the discretion and judgment inherent in their position and vital to the effective operation of the judiciary. We should, of course, not protect a member of the judiciary “who is in fact guilty of using his powers to vent his spleen upon others, or for any other personal motive not connected with the public good.” Gregoire v. Biddle, 177 F.2d 579, 581. To deny recovery to a person injured by the ruling of a judge acting for personal gain or out of personal motives would be “monstrous.” Ibid. But, it is argued that absolute immunity is necessary to prevent the chilling effects of a judicial inquiry, or the threat of such inquiry, into whether, in fact, a judge has been unfaithful to his oath of office. Thus, it is necessary to protect the guilty as well as the innocent. ^[5]

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[19]The argument that the actions of public officials must not be subjected to judicial scrutiny because to do so would have an inhibiting effect on their work, is but a more sophisticated manner of saying “The King can do no wrong.”

[20]This is not to say that a judge who makes an honest mistake should be subjected to civil liability. It is necessary to exempt judges from liability for the consequences of their honest mistakes. The judicial function involves an informed exercise of judgment. It is often necessary to choose between differing versions of fact, to reconcile opposing interests, and to decide closely contested issues. Decisions must often be made in the heat of trial. A vigorous and independent mind is needed to perform such delicate tasks. It would be unfair to require a judge to exercise his independent judgment and then to punish him for having exercised it in a manner which, in retrospect, was erroneous. Imposing liability for mistaken, though honest judicial acts, would curb the independent mind and spirit needed to perform judicial functions. Thus, a judge who sustains a conviction on what he forthrightly considers adequate evidence should not be subjected to liability when an appellate court decides that the evidence was not adequate. Nor should a judge who allows a conviction under what is later held an unconstitutional statute.

[21]But that is far different from saying that a judge shall be immune from the consequences of any of his judicial actions, and that he shall not be liable for the knowing and intentional deprivation of a person’s civil rights. What about the judge who conspires with local law enforcement officers to “railroad” a dissenter? What about the judge who knowingly turns a trial into a “kangaroo” court? Or one who intentionally flouts the Constitution in order to obtain a conviction? Congress, I think, concluded that the evils of allowing intentional, knowing deprivations of civil rights to go unredressed far outweighed the speculative inhibiting effects which might attend an inquiry into a judicial deprivation of civil rights.^[6]

[22]The plight of the oppressed is indeed serious. Under City of Greenwood v. Peacock, 384 U.S. 808, the defendant cannot remove to a federal court to prevent a state court from depriving him of his civil rights. And under the rule announced today, the person cannot recover damages for the deprivation.

Pierson v. Ray – Audio and Transcript of Oral Argument

Footnotes

1. In Thomas various “Freedom Riders” were arrested and convicted under circumstances substantially similar to the facts of these cases. The police testified that they ordered the “Freedom Riders” to leave because they feared that onlookers might breach the peace. We reversed without argument or opinion, citing Boynton v. Virginia, 364 U.S. 454 (1960). Boynton held that racial discrimination in a bus terminal restaurant utilized as an integral part of the transportation of interstate passengers violates § 216(d) of the Interstate Commerce Act. State enforcement of such discrimination is barred by the Supremacy Clause. ↵

    

2. Respondents read the court’s opinion as remanding for a new trial on this claim. The court stated, however, that the officers “are immune from liability for false imprisonment at common law but not from liability for violations of the Federal statutes on civil rights. It therefore follows that there should be a new trial of the civil rights claim against the appellee police officers so that there may be a determination of the fact issue as to whether the appellants invited or consented to the arrest and imprisonment.” 352 F.2d, at 221. ↵

    

3. Respondents did not challenge in their petition in No. 94 the holding of the Court of Appeals that a new trial is necessary because of the prejudicial cross-examination. Belatedly, they devoted a section of their brief to the contention that the cross-examination was proper. This argument is no more meritorious than it is timely. The views of the Communist Party on racial equality were not an issue in these cases. ↵

    

4. As altered by the reviser who prepared the Revised Statutes of 1878, and as printed in 42 U.S.C. § 1983, the statute refers to “every person” rather than to “any person.” ↵

    

5. Other justifications for the doctrine of absolute immunity have been advanced: (1) preventing threat of suit from influencing decision; (2) protecting judges from liability for honest mistakes; (3) relieving judges of the time and expense of defending suits; (4) removing an impediment to responsible men entering the judiciary; (5) necessity of finality; (6) appellate review is satisfactory remedy; (7) the judge’s duty is to the public and not to the individual; (8) judicial self-protection; (9) separation of powers. See generally Jennings, Tort Liability of Administrative Officers, 21 MINN L. REV. 263, 271-272 (1937). ↵

    

6. A judge is liable for injury caused by a ministerial act; to have immunity the judge must be performing a judicial function. See, e.g., Ex parte Virginia, 100 U.S. 339; 2 HARPER & JAMES, THE LAW OF TORTS 1642-1643 (1956). The presence of malice and the intention to deprive a person of his civil rights is wholly incompatible with the judicial function. When a judge acts intentionally and knowingly to deprive a person of his constitutional rights he exercises no discretion or individual judgment; he acts no longer as a judge, but as a “minister” of his own prejudices. ↵
   

Notes on Pierson v. Ray: Absolute Immunity under Section 1983

1. What are the policies that justify judicial immunity? Must the immunity be absolute to serve these purposes? Who bears the risk of loss of the constitutional deprivation where the individual state official who violated the Constitution is absolutely immune?
2. In Scheuer v. Rhodes, 416 U.S. 232, 248-9 (1974), the Supreme Court rejected a claim of absolute immunity for state executive officers under 42 U.S.C. § 1983:
   

   Under the criteria developed by precedents of this Court, § 1983 would be drained of meaning were we to hold that the acts of a governor or other high executive officer have “the quality of a supreme and unchangeable edict, overriding all conflicting rights of property and unreviewable through the judicial power of the Federal Government.” Sterling v. Constantin, 287 U.S. 378 at 397, 77 L.Ed. 375, 53 S. Ct. 190. In Sterling, Mr. Chief Justice Hughes put it in these terms:

   “If this extreme position could be deemed to be well taken, it is manifest that the fiat of a state Governor, and not the Constitution of the United States, would be the supreme law of the land; that the restrictions of the Federal Constitution upon the exercise of state power would be but impotent phrases, the futility of which the State may at any time disclose by the simple process of transferring powers of legislation to the Governor to be exercised by him, beyond control, upon his assertion of necessity. Under our system of government, such a conclusion is obviously untenable. There is no such avenue of escape from the paramount authority of the Federal Constitution. When there is a substantial showing that the exertion of state power has overridden private rights secured by that Constitution, the subject is necessarily one for judicial inquiry in an appropriate proceeding directed against the individuals charged with the transgression.” Id. at 397-398, 77 L.Ed. 375.

   See also Yousuf v. Samantar, 699 F.3d 763 (4th Cir. 2012) (holding common law immunity defense unavailable under Torture Victims Protection Act, which authorizes civil action against “[a]n individual who, under actual or apparent authority, or color of law, of any nation … subjects an individual to torture’ or “extrajudicial killing”; customary international law, which abrogates official immunity for individuals who violate international  human rights, is incorporated into domestic law of the United States.); Clea v. Mayor and City Council of Baltimore, 541 A.2d 1303, 1314 (Md. 1988) (“[W]ith regard to clothing a public official with a degree of governmental immunity, there are sound reasons to distinguish actions to remedy constitutional violations from ordinary tort suits. The purpose of an … ordinary tort action is not to specifically to protect individuals against government officials or to restrain government officials.… On the other hand, constitutional provisions like … the Maryland Declaration of Rights … are specifically designed to protect citizens against certain types of unlawful acts by government officials. To accord immunity to the responsible government officials and leave an individual remediless when his constitutional rights are violated, would be inconsistent with the purpose of constitutional provisions.”).

   Is absolute judicial immunity distinguishable?

3. What is the source of the exemption of the judiciary from liability for violating the guarantees of the Constitution? See Seminole Tribe v. Florida, 517 U.S. 44, 71 n.15 (1996) (“Justice Stevens, in his dissenting opinion … contends that no distinction may be drawn between state sovereign immunity and the immunity enjoyed by state and local officials. But even assuming the latter has no constitutional foundation, the distinction is clear. The Constitution specifically recognizes the States as sovereign entities, while government officials enjoy no such constitutional recognition.”). From where would such an exemption properly derive? See U.S. CONST. art. 1, § 6. Is the conferral of immunity under Section 1983 unconstitutional?
   1. In Briscoe v. LaHue, 460 U.S. 325 (1983), the Supreme Court held that police officers are absolutely immune from Section 1983 liability founded on their allegedly perjured testimony in judicial proceedings. Justice Marshall dissented from the Court’s reliance on the common law immunity of witnesses in conferring immunity under Section 1983:
      

      The majority opinion correctly states that this case presents a question of statutory construction. Ante, at 1. Yet it departs from generally accepted principles for interpreting laws.
      In all other matters of statutory construction, this Court begins by focusing on the language of the statute itself.

      “Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive.” Consumer Product Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980). The language of § 1983 provides unambiguous guidance in this case. A witness is most assuredly a “person,” the word Congress employed to describe those whose conduct § 1983 encompasses. The majority turns the conventional approach to statutory interpretation on its head. It assumes that common-law tort immunities provide an exemption from the plain language of the statute unless petitioners demonstrate that Congress meant to override the immunity. See ante, at 11. Thus, in the absence of a clearly expressed legislative intent to the contrary, the Court simply presumes that Congress did not mean what it said.

      Absolute immunity for witnesses conflicts not only with the language of § 1983 but also with its purpose. In enacting § 1983, Congress sought to create a damage action for victims of violations of federal rights; absolute immunity nullifies “pro tanto the very remedy it appears Congress sought to create.” Imbler v. Pachtman, 424 U.S. 409, 434 (1976) (White, J., concurring in the judgment). The words of a statute should always be interpreted to carry out its purpose. Moreover, members of the 42nd Congress explicitly stated that § 1983 should be read so as to further its broad remedial goals.

      * * * * *

      It might be appropriate to import common-law defenses and immunities into the statute if, in enacting § 1983, Congress had merely sought to federalize state tort law. But Congress “intended to give a broad remedy for violations of federally protected civil rights.” Monell v. Department of Social Services, 436 U.S. 658, 685 (1978) (emphasis added). Different considerations surely apply when a suit is based on a federally guaranteed right—in this case, the constitutional right to due process of law—rather than the common law. The Congress that enacted § 1983 had concluded that “a deprivation of a constitutional right is significantly different from and more serious than a violation of a state right and therefore deserves a different remedy even though the same act may constitute both a state tort and the deprivation of a constitutional right.” Monroe v. Pape, 365 U.S. 167, 196 (1961) (Harlan, J., concurring). Therefore, immunities that arose in the context of tort actions against private parties provide little guidance for actions against state officials for constitutional violations. “It would indeed be the purest coincidence if the state remedies for violations of common-law rights by private citizens were fully appropriate to redress those injuries which only a state official can cause and against which the Constitution provides protection.” Id. at 196 n.5.

      460 U.S. 325, 347-50. See also, Richard A. Matasar, Personal Immunities Under Section 1983: The Limits of the Court’s Historical Analysis, 40 ARK. L. REV. 741 (1987).

   2. 42 U.S.C. § 1988 provides, in pertinent part:
      

      The jurisdiction in civil … matters conferred on the district courts … for the protection of all persons in the United States in their civil rights, and for their vindication, shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect;  but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against the law, the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil … cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause….

      In Manuel v. City of Joliet, 580 U.S. ___, 139 S. Ct. 2777 (2017), the Court remanded the case to the lower court to consider whether the statute of limitations in a Section 1983 action challenging the legality of pretrial confinement accrues on the date that legal process began or on the date that charges were dismissed.  The Court offered the following guidance:

      In defining the contours and prerogatives of a § 1983 claim, including its rule of accrual, courts are to look first to the common law of torts.  Sometimes, that review of common law will lead a court to adopt wholesale the rules that would apply to a suit involving the most analogous tort.  But not always.  Common-law principles are meant to guide rather than to control the definition of § 1983 claims. Serving “more as a source of inspired examples than of prefabricated components…. See Rehberg v. Paulk, 566 U.S. 356, 366 (2012) (noting that “§ 1983 is [not] simply a federalized amalgamation of pre-existing common law claims.”). In applying, selecting among, or adjusting common-law approaches, courts must closely attend to the values and purposes of the constitutional right at issue.

      Id.  at ___.

   3. Must absolute immunity under Section 1983 be denied to all officials who did not possess a well-established immunity at common law in 1871?
      1. In Antoine v. Byers, 508 U.S. 429 (1993), the Court refused absolute immunity for a court reporter whose failure to produce a transcript delayed the hearing of an appeal from a federal criminal trial until four years following the conviction. The Court reasoned that “[i]n determining which officials perform functions that might justify a full exemption from liability we have ‘undertaken a considered inquiry into the immunity historically accorded the relevant official at common law and the interests behind it.’” Id. at 432. Because official court reporters were first employed in the late nineteenth century, the Court found they were not among the persons protected when the common law doctrine of judicial immunity emerged.
      2. In Imbler v. Pachtman, 424 U.S. 409 (1976), the Court relied in part upon common law precedents to hold public prosecutors absolutely immune for initiating a criminal action. As the Court subsequently conceded in Kalina v. Fletcher, 522 U.S. 118, 124 n.11 (1997):
         

         The cases that the [Imbler] Court cited were decided after 1871 and granted a broader immunity to public prosecutors than had been available in malicious prosecution actions against private persons who brought prosecutions at early common law….  However, these early cases were decided before the office of public prosecutor in its modern form was common. Thus, the Court in Imbler drew guidance both from the first American cases addressing the availability of malicious prosecution cases against public prosecutors, and perhaps more importantly, from the policy considerations underlying the firmly established common-law rules providing absolute immunity for judges and jurors.

         Was the Imbler Court’s use of cases decided after 1871 consistent with the intent of Congress as portrayed in Pierson? Does the Court have the power to interpret Section 1983 to afford more expansive immunity than existed under the common law as of 1871 based upon policy considerations?

      3. Plaintiff Charles Rehberg, a certified public accountant, sent a series of anonymous criticizing the management of a hospital in Georgia. The district attorney’s office, and its chief investigator James Paulk, initiated a criminal investigation of Rehberg, allegedly as a favor to the leadership of the hospital. Paulk testified before a grand jury on three separate occasions; in each instance, the grand jury issued an indictment that subsequently was dismissed. Rehberg filed a Section 1983 action against Paulk, alleging that Paulk conspired to present and presented false testimony to the grand jury.

         Rehberg contended that because complaining witnesses were not entitled to absolute immunity at common law, Paulk was not absolutely immune from liability under Section 1983. The Court rejected the argument:

         While the Court has looked to the common law in determining the scope of the absolute immunity available under § 1983, the Court has not suggested that § 1983 is simply a federalized amalgamation of pre-existing common law claims. The new federal claim created by § 1983 differs in important ways from those pre-existing torts. It is broader in that it reaches constitutional and statutory violations that do not correspond to any previously known tort. But it is narrower in that it applies only to tortfeasors who act under color of state law. Thus, both the scope of the new tort and the scope of the absolute immunity available in § 1983 actions differ in some respects from the common law.

         Rehberg v. Paulk, 566 U.S. 356, 366 (2012). The court reasoned that when Congress enacted Section 1983, a “complaining witness” was the person who procured an arrest and initiated a prosecution, without necessarily testifying against the accused. After 1871, those functions were performed by the prosecutor. Thus it would be “anomalous to permit a police officer who testifies before a grand jury to be sued for maliciously procuring an unjust prosecution when it is the prosecutor, who is shielded by absolute immunity, who is actually responsible for the decision to prosecute.” Id. at 372

4. In Stump v. Sparkman, 435 U.S. 349 (1978), a state trial court judge granted a petition to perform a tubal ligation on Linda Sparkman. The petition, which was presented by Linda’s mother, was not assigned a docket number nor placed on file with the court’s office. No notice was given to Linda, nor were her interests represented by a guardian ad litem.  At the time that Judge Stump approved the petition, Indiana statutory law authorized sterilization only for institutionalized persons, and even then only after notice and an evidentiary hearing. Similarly, the Indiana courts had held that the general authority of a parent to consent to medical treatment for a minor child did not encompass the power to authorize sterilization.

   Approximately two years after the tubal ligation was performed, Linda learned she had been sterilized and filed a Section 1983 action against, among others, Judge Stump. The Supreme Court held that Judge Stump was absolutely immune because the approval of the petition was a judicial act and, as an Indiana Circuit Court Judge, Judge Stump had “original exclusive jurisdiction in all cases at law and equity.” “Because the court over which Judge Stump presides is one of general jurisdiction, neither the procedural errors he may have committed nor the lack of a specific statute authorizing his approval of the petition in question rendered him liable in damages for the consequences of his actions.” Id. at 359-60.

   1. In Zarcone v. Perry, 572 F.2d 52, 53-54 (2nd Cir. 1978), a jury found Suffolk County Judge William Perry liable under Section 1983 for compensatory and punitive damages for the following conduct:

      The incident that gave rise to the lawsuit occurred on April 30, 1975. On that night, then Judge Perry was in his chambers during a break in an evening session of traffic court in Suffolk County, Long Island. Zarcone was operating a mobile food vending truck outside the courthouse. Perry asked Deputy Sheriff Windsor to get some coffee, which he did. Both Perry and Windsor thought the coffee tasted “putrid,” and Perry told Windsor to get the coffee vendor and bring him “in front of me in cuffs.” Perry directed two plainclothes officers, who happened to be nearby, to accompany Windsor. Wearing his sheriff’s uniform equipped with badge, gun and handcuffs, Windsor went to Zarcone and told him that the judge said the coffee was terrible and that Zarcone had to go inside to see the judge. Windsor handcuffed Zarcone, despite the vendor’s protestations that it was not necessary. When Zarcone said he was too embarrassed to go into the courthouse that way, one of the officers suggested that Zarcone walk between them with Zarcone’s jacket over his hands.

      The group then marched through the hallway of the courthouse, in full view of dozens of people. Zarcone heard someone yell that they were locking up the frankfurter man. When they arrived at Perry’s chambers, the judge asked if the Sheriff had “the coffee vending man there in handcuffs.” Upon entering the chambers, Perry ordered Zarcone to be left “in handcuffs until I get finished with him.” A pseudo-official inquisition then began. Zarcone stood in front of the judge’s desk, behind which the judge sat. A court reporter was present, along with Windsor and the two police officers. Perry told Zarcone that “I have the two cups of coffee here for evidence.” According to Zarcone, whom the jury must have believed, Perry then started screaming at him, threatening him and his “livelihood” for about 20 minutes, and thoroughly scaring him. Just before Zarcone was allowed to leave, Perry commanded Windsor to note Zarcone’s vehicle and vending license numbers and told Zarcone, “Mister, you are going to be sorrier before I get through with you.”

      After Zarcone left, he resumed his mobile truck route and came back to the night traffic courthouse about 45 minutes later. Shortly thereafter, Windsor returned and told Zarcone they were to go back to the judge. Zarcone asked if he had to be handcuffed again, but Windsor said no. When they reappeared before Perry, he told Zarcone that he was going to have the two cups of coffee analyzed. Perry also said that if Zarcone would admit he did something wrong, then Perry would drop the charges. Zarcone consistently denied that anything was amiss with the coffee, and no charges were filed.

      Should Judge Perry have been held absolutely immune from liability for his actions?

   2. In Mireles v. Waco, 502 U.S. 9 (1991), Los Angeles County public defender Howard Waco filed a damages action under Section 1983 against Judge Mireles. The Complaint alleged that after Waco failed to appear for the morning calendar call, Judge Mireles ordered police officers to use unreasonable force to seize Waco and bring him into Mireles’ courtroom. Waco averred that with Judge Mireles’ approval, the officers violently removed Waco backwards from another courtroom where he was waiting to appear, and slammed him through the doors and swinging gates of Judge Mireles’ court.In a per curiam opinion, the Supreme Court affirmed the granting of Judge Mireles’ motion to dismiss on the ground of absolute immunity. The Court ruled that the judge did not act in the absence of jurisdiction but, to the contrary, ordered Waco to be brought to the courtroom in aid of the judge’s jurisdiction over a matter before him. Furthermore, Judge Mireles’ actions were taken in his judicial capacity. While judges do not commonly order officers to use excessive force:
      

      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.” … [T]he relevant inquiry is the “nature” and “function” of the act, not the “act itself.” In other words, we look to the particular act’s relation to a general function ordinarily performed by a judge, in this case the function of directing police officers to bring counsel in a pending case before the court.

      Id. at 12-13. See also Martin v. Hendren, 172 F.3d 720 (8th Cir. 1997) (police officer who used excessive force in carrying out judge’s order to handcuff plaintiff and to remove her from courtroom during traffic court is shielded by absolute quasi-judicial immunity); contra, Richman v. Sheahan, 270 F.3d 430 (7th Cir. 2001) (deputy sheriffs who killed plaintiff while enforcing judge’s order to restrain plaintiff during his mother’s appearance before traffic judge not entitled to absolute immunity).

5. Although judges are absolutely immune from all “judicial acts” within their jurisdiction, absolute immunity may be denied when a judge acts in a non-judicial capacity. See Forrester v. White, 484 U.S. 219 (1988) (Judge is not absolutely immune for discriminatory dismissal of a probation officer, as action was taken in an administrative capacity); Supreme Court of Virginia v. Consumers Union of the United States, 446 U.S. 719 (1980) (Virginia Supreme Court is not absolutely immune from suit for declaratory and injunctive relief for initiating disciplinary proceedings against attorneys pursuant to State Bar Code because initiation of proceeding was exercise of judges’ “enforcement capacities.”)
6. In Pulliam v. Allen, 466 U.S. 522 (1984), the Court held that judges are not immune under Section 1983 from declaratory or injunctive relief. The Court looked first to English common law and discovered that the Kings Bench prerogative writs of prohibition and mandamus were issued against judges. Likewise, American common law rejected immunity of judges where prospective relief was sought. Id. at 529-37.

   Equitable relief, the Court reasoned, does not present the same policy concerns that animated absolute judicial immunity from damages. The limits on the issuance of equitable relief—the requirement that the remedy at law be inadequate and the risk of irreparable harm were equitable relief not to issue—diminish the risk of harassment and interference with judicial independence presented by suits for damages. Id. at 537-38.

   Finally, the Court discerned no evidence of congressional intent to confer absolute immunity on judges against Section 1983 actions seeking equitable relief. To the contrary, Congress enacted Section 1983 because “‘state courts were being used to harass and injure individuals, either because the state courts were powerless to stop deprivations or were in league with those who were bent upon abrogation of federally protected rights.’” Id. at 540, quoting Mitchum v. Foster, 407 U.S. 225, 240 (1972).

   In 1996, Congress amended Section 1983, providing 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.” Pub. L. 104-317, Title III, § 309(c), Oct. 19, 1996, 110 Stat. 3853.

7. In Olivia v. Heller, 839 F.2d 37, 40 (2nd Cir. 1988), the court considered whether a judge’s law clerk is protected by any immunity:
   

   [A] law clerk is probably the one participant in the judicial process whose duties and responsibilities are most intimately connected with the judge’s own exercise of the judicial function. As described by the district court:

   the work of judges’ law clerks is entirely [judicial in nature]. Law clerks are closely connected with the court’s decision-making process. Law clerks are “sounding boards for tentative opinions and legal researchers who seek authorities that affect decisions. Clerks are privy to the judge’s thoughts in a way that neither parties to the lawsuit nor his most intimate family members may be.” Hall v. Small Business Administration, 695 F.2d 175, 179 (5th Cir. 1983). Moreover, the work done by law clerks is supervised, approved, and adopted by the judges who initially authorized it. A judicial opinion is not that of the law clerk, but of the judge. Law clerks are simply extensions of the judges at whose pleasure they serve.

   * * * * *

   We believe the district court accurately described the role of the law clerk in the judicial process, and we therefore must agree that “for purposes of absolute judicial immunity, judges and their law clerks are as one.” Id.

   Olivia v. Heller, 670 F. Supp. 523, 526 (S.D.N.Y. 1987)

8. Prosecutors possess absolute immunity for initiating prosecutions and presenting the government’s case, Imbler v. Pachtman, 424 U.S. 409 (1976). Absolute prosecutorial immunity, however, is plainly limited to damage suits and will not bar a Section 1983 action seeking declaratory or injunctive relief. Supreme Court of Virginia v. Consumers Union of the United States, 446 U.S. 719, 736-37 (1980).
   1. In Burns v. Reed, 500 U.S. 478 (1991), the Court held that absolute immunity extends to the prosecutor’s “role as an advocate” in presenting evidence at a hearing to determine the existence of probable cause for the issuance of a search warrant. However, the Court renounced absolute immunity for the prosecutor’s advice to police officers that it was permissible to interview the defendant under hypnosis and to use the incriminating statement elicited to establish probable cause to search her house and car. The Court reasoned that there is no historic tradition of absolute prosecutorial immunity for legal advice analogous to the common law immunity from malicious prosecution that animated its bestowal of absolute immunity in Imbler. The Court further concluded that the risk of vexatious litigation does not mandate absolute immunity because such immunity is aimed only at guarding the judicial process from the burdens of litigation. Accordingly, absolute prosecutorial immunity is not available for all investigative activities related to the ultimate decision to prosecute, but is restricted to the prosecutor’s role in judicial proceedings. See also Van de Kamp v. Goldstein, 555 U.S. 335 (2009) (supervising prosecutor has absolute immunity against claim that (a) failure to properly train and supervise subordinate prosecutors, and (b) failure to establish information system containing potential impeachment materials about informant caused prosecution to fail to turn over evidence that its witness previously had been rewarded for giving testimony favorable to prosecution. Although challenged actions were “administrative,” they require legal knowledge and are directly connected to the prosecutors’ trial advocacy duties).
   2. In Buckley v. Fitzsimmons, 509 U.S. 259 (1993), the Court ruled that a prosecutor was not absolutely immune for (a) fabricating evidence that was later presented to the grand jury, and (b) making false statements at a press conference to announce the indictment of the plaintiff. The Court dismissed the plaintiff’s contention that the immunity was confined to the actual initiation of the prosecution and the presentation of the state’s case. However, the Court accepted the distinction “between the advocate’s role in evaluating evidence and interviewing witnesses as he prepares for trial, on the one hand, and the detective’s role in searching for the clues and corroboration that might give him probable cause to recommend that a suspect be arrested, on the other hand.” 509 U.S. 273. Because the plaintiff alleged that the prosecutor fabricated evidence before probable cause existed to make an arrest or initiate judicial proceedings, the actions in issue were investigative and not shielded by absolute immunity. The Court likewise held that the prosecutor was not absolutely immune for untrue statements to the press. Such statements do not involve the commencement of prosecution, presentation of the State’s case in court, or actions in preparation for those functions. Hence for immunity purposes, the prosecutor does not issue comments to the press in the role as an advocate and the statements have no functional tie to the judicial process.
   3. In Kalina v. Fletcher, 522 U.S. 118 (1997), the Court denied absolute immunity to a deputy prosecuting attorney for falsely certifying, under penalty of perjury, the factual allegations underlying an application for an arrest warrant. While the prosecutor’s filing of the application for an arrest warrant was part of the advocate’s function and therefore protected by absolute immunity, the Court concluded, in verifying the truth of the factual underpinnings the attorney was performing the function of a witness. The Court had previously held in Malley v. Briggs, 475 U.S. 335 (1986) that a police officer possesses only qualified immunity for signing an application for a search warrant. Hence it ruled that the district attorney similarly was shielded only by qualified immunity to the extent that plaintiff’s Section 1983 action arose out of the prosecutor’s false verification of the factual allegations.Justice Scalia pointed out that the Court’s “functional approach” to immunity under Section 1983 yielded an outcome diametrically opposed to the common law rules as of 1871. At that time, prosecutions were initiated by private individuals, who were shielded only by a form of qualified immunity from malicious prosecution actions. On the other hand, the common law granted absolute immunity to statements made in the course of judicial proceedings. Justice Scalia nonetheless concurred with the majority:
      

      [T]he “functional categories” approach to immunity questions … make faithful adherence to the common law embodied in § 1983 very difficult. But … the “functional” approach [is] so deeply imbedded in our § 1983 jurisprudence that, for reasons of stare decisis, I would not abandon them now.

      522 U.S. at 135 (Scalia, J., concurring). If the Court had abandoned the common law as the source of immunity under Section 1983, on what basis can Congress be said to have intended to embrace immunity when it enacted Section 1983?

      9. State, regional and local legislators also have been found absolutely immune from Section 1983 liability in suits arising out of their legislative acts, whether the relief sought is legal or equitable. Bogan v. Scott-Harris, 523 U.S. 44 (1998); Supreme Court of Virginia v. Consumers Union of the United States, 446 U.S. 719, 731-32 (1980); Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 402-06 (1979). In Bogan, the Court held that a mayor, albeit an executive official, is shielded by absolute legislative immunity for the acts of introducing a budget and signing an ordinance into law “because they were integral steps in the legislative process.” Bogan, 523 U.S. at 55. But see, Kamplain v. Curry County Board of Commissioners, 159 F.3d 1248, 1252 (10th Cir. 1998) (County commissioners’ vote to prohibit plaintiff from speaking at commission meetings is not protected by absolute immunity because they were not “voting on, speaking on, or investigating a legislative issue.”).

      10. The Supreme Court has held that police officers are absolutely immune from Section 1983 suits arising out of allegations that the officers gave perjured testimony in a criminal trial. Briscoe v. LaHue, 460 U.S. 325 (1983), or in a grand jury proceeding. Rehberg v. Paulk, 566 U.S. 356 (2012). However, the Court held that members of a prison disciplinary committee are entitled to only a qualified, rather than absolute, immunity. Cleavinger v. Saxner, 474 U.S. 193 (1985). Similarly, the Court refused to extend absolute immunity to a police officer alleged to have caused an unconstitutional arrest by presenting a judge with a complaint and supporting affidavit that failed to establish probable cause, even though the judge issues arrest warrants. Malley v. Briggs, 475 U.S. 335 (1986).

      11. While the “under color of law” requirement of Section 1983 generally is satisfied where private actors conspire with a state official, Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970), may private individuals be sued under Section 1983 for constitutional deprivations inflicted pursuant to a conspiracy with a state official who is absolutely immune? See Dennis v. Sparks, 449 U.S. 24 (1980).