“When a judge acts where he or she does not have jurisdiction to act, the judge is engaged in an act or acts of treason.”
US v Will, 449 US 200,216, 101 S Ct, 471, 66 LEd2nd 392, 406 (1980) Cohens V Virginia, 19 US (6 Wheat) 264, 404, 5LEd 257 (1821)
Jon Turley – Attorney General absolute immunity ‘disgusting’, contrary to founders intent
Owen v. Independence, 100 S.C.T. 1398, 445 US 622
“Officers of the court have no immunity, when violating a Constitutional right, from liability. For they are deemed to know the law.”
Brady v. U.S., 397 U.S. 742, 748
“Waivers of Constitutional Rights, not only must they be voluntary, they must be knowingly intelligent acts done with sufficient awareness.”
“If men, through fear, fraud, or mistake, should in terms renounce or give up any natural right, the eternal law of reason and the grand end of society would absolutely vacate such renunciation. The right to freedom being a gift of ALMIGHTY GOD, it is not in the power of man to alienate this gift and voluntarily become a slave.”
—Samuel Adams, 1772
United States v. Sandford, Fed. Case No.16, 221 (C.Ct.D.C. 1806)
“In the early days of our Republic, ‘prosecutor’ was simply anyone who voluntarily went before the grand Jury with a complaint.”
Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401 (1958).
“No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it.”
Kalina v. Fletcher, 522 U.S. 118, 118 S.Ct. 502 (U.S.Wash.,1997)
I agree that Ms. Kalina performed essentially the same “function” in the criminal process as the police officers in Malley v. Briggs, 475 U.S. 335, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986), and so I join the opinion of the Court. I write separately because it would be a *132 shame if our opinions did not reflect the awareness that our “functional” approach to 42 U.S.C. § 1983 immunity questions has produced some curious inversions of the common law as it existed in 1871, when § 1983 was enacted. A conscientious prosecutor reading our cases should now conclude that there is absolute immunity for the decision to seek an arrest warrant after filing an information, but only qualified immunity for testimony as a witness in support of that warrant. The common-law rule was, in a sense, exactly opposite.
There was, of course, no such thing as absolute prosecutorial immunity when § 1983 was enacted. (Indeed, as the Court points out, ante, at 506, n. 11, there generally was no such thing as the modern public prosecutor.) The common law recognized a “judicial” immunity, which protected judges, jurors and grand jurors, members of courts- martial, private arbitrators, and various assessors and commissioners. That immunity was absolute, but it extended only to individuals who were charged with resolving disputes between other parties or authoritatively adjudicating private rights. When public officials made discretionary policy decisions that did not involve actual adjudication, they were protected by “quasi-judicial” immunity, which could be defeated by a showing of malice, and hence was more akin to what we now call “qualified,” rather than absolute, immunity. I continue to believe that “prosecutorial functions, had they existed in their modern form in 1871, would have been considered quasi-judicial.” Burns v. Reed, 500 U.S. 478, 500, 111 S.Ct. 1934, 1947, 114 L.Ed.2d 547 (1991) (SCALIA, J., concurring in judgment in part and dissenting in part).
That conclusion accords with the common law’s treatment of private prosecutors, who once commonly performed the “function” now delegated to public officials like petitioner. A private citizen who initiated or procured**511 a criminal prosecution could (and can still) be sued for the tort of malicious prosecution-but only if he acted maliciously and without *133 probable cause, and the prosecution ultimately terminated in the defendant’s favor.Thus, although these private prosecutors (sometimes called “complaining witnesses”), since they were not public servants, were not entitled to quasi-judicial immunity, there was a kind of qualified immunity built into the elements of the tort.
The common law also recognized an absolute immunity for statements made in the course of a judicial proceeding and relevant to the matter being tried. That immunity protected both witnesses and attorneys, and could not be defeated even by an allegation that the statement was maliciously false. See, e.g., F. Hilliard, Law of Torts 319 (1866). It was, however, an immunity only against slander and libel actions.
At common law, therefore, Kalina would have been protected by something resembling qualified immunity if she were sued for malicious prosecution. The tortious act in such a case would have been her decision to bring criminal charges against Fletcher, and liability would attach only if Fletcher could prove that the prosecution was malicious, without probable cause, and ultimately unsuccessful. Kalina’s false statements as a witness in support of the warrant application would not have been an independent actionable tort (although they might have been evidence of malice or initiation in the malicious prosecution suit), because of the absolute privilege protecting such testimony from suits for defamation.
The Court’s long road to what is, superficially at least, the opposite result in today’s opinion, began with Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976), which granted prosecutors absolute immunity for the “function” of initiating a criminal prosecution. Then, in Briscoe v. LaHue, 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983), the Court extended a similar absolute immunity to the “function” of serving as a witness. And in Malley v. Briggs, supra, it recognized the additional “functional category” of “complaining witness.” Since this category was *134 entitled to only qualified immunity, the Court overturned a directed verdict in favor of a police officer who had caused the plaintiff to be arrested by presenting a judge with a complaint and an affidavit supporting probable cause. The Court said:
“[C]omplaining witnesses were not absolutely immune at common law. In 1871, the generally accepted rule was that one who procured the issuance of an arrest warrant by submitting a complaint could be held liable if the complaint was made maliciously and without probable cause. Given malice and the lack of probable cause, the complainant enjoyed no immunity.” Id., at 340-341, 106 S.Ct., at 1095-1096.
That statement is correct, but it implies a distinction between “witnesses” (absolutely immune) and “complaining witnesses” (at best qualifiedly immune) which has little foundation in the common law of 1871. That law did not recognize two kinds of witness; it recognized two different torts. “In this sense, then, Malley ‘s discussion of complaining witnesses is a feint. The Court was not awaking to a different type of witness … so much as recognizing a different cause of action-the action for malicious prosecution.” Comment, Police Witness Immunity Under § 1983, 56 U. Chi. L.Rev. 1433, 1454 (1989). By the time Malley was decided, however, the Court’s methodology forced it to express its conclusion in terms of whether the particular “function” at issue would have been entitled to immunity at common law. See, e.g., Briscoe, supra, at 342, 103 S.Ct., at 1119 (“[Our] cases clearly indicate that immunity analysis rests on functional categories”). By inventing “a new functional category: the complaining witness, who (in the Court’s specially-tailored history) was liable at common law and so is liable under § 1983,” Comment, supra, at 1454, Malley moved the Court’s immunity jurisprudence much closer to the results the common law would have achieved.
*135 But no analytical approach based upon “functional analysis” can faithfully replicate the common law, as is demonstrated in the Court’s opinion today. By describing the subset of actors in the criminal process who are subject to suit as “complaining witnesses,**512 ” the Court implies that testifying is the critical event. But a “complaining witness” could be sued for malicious prosecution whether or not he ever provided factual testimony, so long as he had a role in initiating or procuring the prosecution; in that sense, the “witness” in “complaining witness” is misleading. As applied to the police officers in Malley, that confusion was more or less harmless. Here, however, Imbler and Malley collide to produce a rule that stands the common law on its head: Kalina is absolutely immune from any suit challenging her decision to prosecute or seek an arrest warrant, but can be sued if she changes “functional categories” by providing personal testimony to the Court.
Imbler ‘s principle of absolute prosecutorial immunity, and the “functional categories” approach to immunity questions imposed by cases like Briscoe, make faithful adherence to the common law embodied in § 1983 very difficult. But both Imbler and the “functional” approach are so deeply embedded in our § 1983 jurisprudence that, for reasons of stare decisis, I would not abandon them now. Given those concessions, Malley ‘s distortion of the term “complaining witness” may take us as close to the right answer as we are likely to get. Because Kalina’s conduct clearly places her in that functional category, I agree with the Court that she is not entitled to absolute immunity under our precedents.
[Kalina v. Fletcher, 522 U.S. 118, 118 S.Ct. 502 (U.S.Wash.,1997)]
BACKGROUND ON OFFICIAL/QUALIFIED IMMUNITY
“Counsel for the claimant, …makes a very ingenious argument… That the maxim of English constitutional law, that the king can do no wrong, is one which the courts must apply to the government of the United States, and that therefore there can be no tort committed by the government…..
It is not easy to see how the first proposition can not have any place in our system of government.
We have no king to whom it can be applied. The President, in the exercise of the executive functions, bears a nearer resemblance to the limited monarch of the English government than any other branch of our government, and is the only individual to whom it could possibly have any relation. It cannot apply to him, because the Constitution admits that he may do wrong, and has provided a means for his trial for wrongdoing,… by the proceeding of impeachment.
It is to be observed that the English maxim does not declare that the government, or those who administer it, can do no wrong; for it is a part of the principle itself that wrong may be done by the government power, for which the ministry, for the time being, is held responsible; and the ministers personally, like our President, may be impeached; or, if the wrong amounts to a crime, they may be indicted and tried at law for the offense.
We do not understand that either in reference to the government of the United States, or to the several States, or of any of their officers, the English maxim has an existence in this country.” Langford v. U.S., 101 U.S. 341, 3423 (1879)
Why do IRS agents get away with so many violations of due process with immunity? The answer is that they are protected from prosecution by our federal courts under the contemporary doctrine of “sovereign immunity”. As you can tell by the quote above from the U.S. Supreme Court back in 1879, support for sovereign immunity was not always endorsed by the courts. As these courts have become corrupted over the years in the process of expanding and upholding the income very tax that pays their salaries, the corrupt black-robed lawyers in these courts have had to contradict historical precedent by protecting especially those who enforce and administer the income tax from personal liability for criminal wrongdoing and lawlessness. Below is an explanation of how agents of the government are insulated and protected from legal liability for wrongdoing:
1. According to one IRS revenue agent we spoke with IRS agents are told by their management that they are not allowed to reveal their first name, only their employee number. Without the full name and identifying information about the employee, it is more difficult to figure out who to serve with legal papers if you want to prosecute individual agents.
2. The IRS service bureaus for specific regions are usually located outside of the jurisdiction of the state they serve. For instance, Ogden Utah services large parts of California. Why isn’t the service bureau for California inside of California? We would argue it is because that makes it much more difficult to personally serve agents who have broken the law or to prosecute them under the laws of your state, because they don’t live in your state. Citizens who want to sue IRS agents or criminally prosecute them have to go outside of their state to serve the agent, which is much more difficult to coordinate, costly, and expensive.
3. The U.S. supreme Court has upheld the notion that persons acting as agents for the U.S. government have at least a limited immunity from prosecution because of illegal, unethical, or questionable acts they commit while on duty. This is called official immunity. As we talked about in section 11.16 entitled “How the Federal Judiciary Stole the Right to Petition: Judicial Arrogance and Bias Against the Right to Petition”, the federal judiciary has also for all intents and purposes destroyed our right to petition the government for redress of grievances and wrongs committed either by agents working for the government or by the government itself. One also cannot sue the U.S. government without their consent, and this is called judicial immunity or sovereign immunity. Why would they give their consent if you sued them for wrongful taking of federal income taxes? All of these factors conspire to make it very difficult if not impossible for the average sovereign Citizen of the several states to protect his/her constitutional rights.
Below is a quote from the U.S. supreme Court on the subject of the types of official immunity in the case of Nevada v. Hicks, No. 99-1994 (U.S. 06/25/2001):
“The doctrines of official immunity, see, e.g., Westfall v. Erwin, 484 U. S. 292, 296-300 (1988), and qualified immunity, see, e.g., Harlow v. Fitzgerald, 457 U. S. 800, 813-819 (1982), are designed to protect state and federal officials from civil liability for conduct that was within the scope of their duties or conduct that did not violate clearly established law. These doctrines short circuit civil litigation for officials who meet these standards so that these officials are not subjected to the costs of trial or the burdens of discovery. 457 U. S., at 817-818. For example, the Federal Employees Liability Reform and Tort Compensation Act of 1988, commonly known as the Westfall Act, allows the United States to substitute itself for a federal employee as defendant upon certifying that the employee was acting within the scope of his duties. 28 U. S. C. §2679(d). Nevada law contains analogous provisions. See Nev. Rev. Stat. §§41.032, 41.0335-41.0339 (1996 and Supp. 1999). The employee who successfully claims official immunity therefore invokes the immunity of the sovereign. When a state or federal official asserts qualified immunity, he claims that his actions were reasonable in light of clearly established law. Anderson v. Creighton, 483 U. S. 635 (1987). In those cases, we allow that official to take an immediate interlocutory appeal from an adverse ruling to ensure that the civil proceedings do not continue if immunity should be granted. Mitchell v. Forsyth, 472 U. S. 511, 524-530 (1985).”
[Nevada v. Hicks, No. 99-1994] (U.S. 06/25/2001)
Below is a quote from the U.S. supreme Court on the subject of official immunity in the case of “ Westfall Et Al. v. Erwin Et Ux.,484 U.S. 292 (1988):
“In Barr v. Matteo, 360 U.S. 564 (1959), and Howard v. Lyons, 360 U.S. 593 (1959), this Court held that the scope of absolute official immunity afforded federal employees is a matter of federal law, “to be formulated by the courts in the absence of legislative action by Congress.” Id., at 597. The purpose of such official immunity is not to protect an erring official, but to insulate the decisionmaking process from the harassment of prospective litigation. The provision of immunity rests on the view that the threat of liability will make federal officials unduly timid in carrying out their official duties, and that effective government will be promoted if officials are freed of the costs of vexatious and often frivolous damages suits. See Barr v. Matteo, supra, at 571; Doe v. McMillan, 412 U.S. 306, 319 (1973). This Court always has recognized, however, that official immunity comes at a great cost. An injured party with an otherwise meritorious tort claim is denied compensation simply because he had the misfortune to be injured by a federal official. Moreover, absolute immunity contravenes the basic tenet that individuals be held accountable for their wrongful conduct. We therefore have held that absolute immunity for federal officials is justified only when “the contributions of immunity to effective government in particular contexts outweigh the perhaps recurring harm to individual citizens.” Doe v. McMillan, supra, at 320.
And finally, below is a description of qualified immunity from the u.S. supreme Court in the case of Harlow Et Al. v. Fitzgerald, 457 U.S. 800 (1982)
“Government officials whose special functions or constitutional status requires complete protection from suits for damages — including certain officials of the Executive Branch, such as prosecutors and similar officials, see Butz v. Economou, 438 U.S. 478, and the President, Nixon v. Fitzgerald, ante, p. 731 — are entitled to the defense of absolute immunity. However, executive officials in general are usually entitled to only qualified or good-faith immunity. The recognition of a qualified immunity defense for high executives reflects an attempt to balance competing values: not only the importance of a damages remedy to protect the rights of citizens, but also the need to protect officials who are required to exercise discretion and the related public interest in encouraging the vigorous exercise of official authority. Scheuer v. Rhodes, 416 U.S. 232. Federal officials seeking absolute immunity from personal liability for unconstitutional conduct must bear the burden of showing that public policy requires an exemption of that scope. Pp. 806-808.”
Ryan v. Bilby, 764 F.2d 1325 (9th Cir. 1985):
“…Judge, magistrates, and prosecutor involved in taxpayer’s prosecution for failure to file returns were absolutely immune from taxpayer’s subsequent civil suit seeking damages against them.”
“Prosecutor enjoys absolute immunity from civil damages liability when he acts in quasi-judicial capacity.”
“Internal Revenue agents are absolutely immune from civil damages liability to taxpayers alleging common-law torts.”
“Internal Revenue agents are immune from liability for constitutional torts insofar as their conduct does not violate clearly established statutory or constitutional rights of which reasonable person would have known.””
[Ryan v. Bilby, 764 F.2d 1325 (9th Cir. 1985)]
NOTE: The cite above uses the tricky word taxpayer, which we know means the person they are referring to is “liable” for the tax in question. If he is indeed liable for the tax, then of course it’s reasonable to say that everyone involved has absolute immunity. But if he was instead referred to as an “American” or a “U.S. national”, then the case would be entirely different. NEVER, EVER, EVER either refer to yourself as a “taxpayer” or allow others to use this word to describe yourself, or your case will be doomed and your rights will be violated.
“A defendant sued as a wrongdoer, who seeks to substitute the State in his place, or to justify by the authority of the State, or to defend on the ground that the State has adopted his act and exonerated him, cannot rest on the bare assertion of his defense. He is bound to establish it. The State is a political corporate body, can act only through agents, and can command only by laws. It is necessary, therefore, for such a defendant, in order to complete his defense, to produce a law of the State which constitutes his commission as its agent, and a warrant for his act. This the defendant in the present case undertook to do. He relied on the Act of January 26, 1882, requiring him to collect taxes in gold, silver, United States treasury notes, national bank currency, and nothing else, and thus forbidding his receipt of coupons in lieu of money. That it is true, is a legislative Act of the government of Virginia, but it is not a law of the State of Virginia. The State has passed no such law, for it cannot; and what it cannot do, it certainly, in contemplation of law, has not done. The Constitution of the United States and its own contract, both irrepealably by any act on its part, are the law of Virginia; and that law made it the duty of the defendant to receive the coupons tendered in payment of taxes, and declared every step to enforce the tax, thereafter taken, to be without warrant of law, and therefore a wrong. He stands then, stripped of his official character, and confessing a personal violation of the plaintiff’s rights, for which he must personally answer, he is without defense.”
“In the discussion of such questions the distinction between the government of a State and the State itself is important and should be observed. In common speech and common apprehension they are usually regarded as identical; and as ordinarily the acts of the government are the acts of the State, because within the limits of its delegation of power, the government of the State is generally confounded with the State itself, and often the former is meant when the latter is mentioned. The State itself is an ideal person, intangible, invisible, immutable. The government is an agent, and, within the sphere of the agency, a perfect representative; but outside of that it is a lawless usurpation. The Constitution of the State is the limit of the authority of its government, and both government and State are subject to the supremacy of the Constitution of the United States and of the laws made in pursuance thereof. So that, while it is true in respect to the government of a State, as was said in Langford v. U.S., 101 U.S. 341 [Bk. 25, L.Ed. 1010], that the maxim that the King can do no wrong has no place in our system of government; yet it is also true, in respect to the State itself, that whatever wrong is attempted in its name is imputable to its government and not to the State, for, as it can speak and act only by law, whatever it does say and do must be lawful. That which therefore is unlawful because made so by the supreme law, the Constitution of the United States, is not the word or deed of the State, but is the mere wrong and trespass of those individual persons who falsely spread and act in its name.”
“This distinction is essential to the idea of constitutional government. To deny it or blot it out obliterates the line of demarcation that separates constitutional government from absolutism, free self- government based on the sovereignty of the people from that despotism, whether of the one or the many, which enables the agent of the state to declare and decree that he is the state; to say ‘L’Etat, c’est moi.’ Of what avail are written constitutions, whose bills of right, for the security of individual liberty, have been written too often with the blood of martyrs shed upon the battle-field and the scaffold, if their limitations and restraints upon power may be overpassed with impunity by the very agencies created and appointed to guard, defend, and enforce them; and that, too, with the sacred authority of law, not only compelling obedience, but entitled to respect? And how else can these principles of individual liberty and right be maintained, if, when violated, the judicial tribunals are forbidden to visit penalties upon individual offenders, who are the instruments of wrong, whenever they interpose the shield of the state? The doctrine is not to be tolerated. The whole frame and scheme of the political institutions of this country, state and federal, protest against it. Their continued existence is not compatible with it. It is the doctrine of absolutism, pure, simple, and naked, and of communism which is its twin, the double progeny of the same evil birth.”
Berends v. Butz, 357 F.Supp. 143 (1973):
“The doctrine of sovereign immunity, raised by defendants, is inapplicable since plaintiff’s content that the defendants’ action were beyond the scope of their authority or they were acting unconstitutionally.”
[Berends v. Butz, 357 F.Supp. 143 (1973)]
Groh v. Ramirez, 540 U.S. 551, 124 S.Ct. 1284 (U.S.,2004)
An officer conducting a search is entitled to qualified immunity if “a reasonable officer could have believed” that the search was lawful “in light of clearly established law and the information the searching officers possessed.” Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). As the Court notes, this is the same objective reasonableness standard applied under the “ ‘good faith’ ” exception to the exclusionary rule. See ante, at 1294, n. 8 (citing Malley v. Briggs, 475 U.S. 335, 344, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)). The central question is whether someone in the officer’s position could reasonably but mistakenly conclude that his conduct complied with the Fourth Amendment. Creighton, supra, at 641, 107 S.Ct. 3034. See also Saucier v. Katz, 533 U.S. 194, 206, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001); Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) (per curiam).
An officer might reach such a mistaken conclusion for several reasons. He may be unaware of existing law and how it should be applied. See, e.g., Saucier, supra. Alternatively,*567 he may misunderstand important facts about the search and assess the legality of his conduct based on that misunderstanding. See, e.g., Arizona v. Evans, 514 U.S. 1, 115 S.Ct. 1185, 131 L.Ed.2d 34 (1995). Finally, an officer may misunderstand elements of both the facts and the law. See, e.g., Creighton, supra. Our qualified immunity doctrine applies regardless of whether the officer’s error is a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact. Butz v. Economou, 438 U.S. 478, 507, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978) (noting that qualified immunity covers “mere mistakes in judgment, whether the mistake is one of fact or one of law”).
The present case involves a straightforward mistake of fact. Although the Court does not acknowledge it directly, it is obvious from the record below that the officer simply made a clerical error when he filled out the proposed warrant and offered it to the Magistrate Judge. The officer used the proper description of the property to be seized when he completed the affidavit. He also used the proper description in the accompanying application. When he typed up the description a third time for the proposed warrant, however, the officer accidentally entered a description of the place to be searched in the part of the warrant form that called for a description of the property to be seized. No one noticed the error before the search was executed. Although the record is not entirely**1296 clear on this point, the mistake apparently remained undiscovered until the day after the search when respondents’ attorney reviewed the warrant for defects. The officer, being unaware of his mistake, did not rely on it in any way. It is uncontested that the officer trained the search team and executed the warrant based on his mistaken belief that the warrant contained the proper description of the items to be seized.
The question is whether the officer’s mistaken belief that the warrant contained the proper language was a reasonable belief. In my view, it was. A law enforcement officer charged with leading a team to execute a search warrant for *568 illegal weapons must fulfill a number of serious responsibilities. The officer must establish probable cause to believe the crime has been committed and that evidence is likely to be found at the place to be searched; must articulate specific items that can be seized, and a specific place to be searched; must obtain the warrant from a magistrate judge; and must instruct a search team to execute the warrant within the time allowed by the warrant. The officer must also oversee the execution of the warrant in a way that protects officer safety, directs a thorough and professional search for the evidence, and avoids unnecessary destruction of property. These difficult and important tasks demand the officer’s full attention in the heat of an ongoing and often dangerous criminal investigation.
An officer who complies fully with all of these duties can be excused for not being aware that he had made a clerical error in the course of filling out the proposed warrant. See Maryland v. Garrison, 480 U.S. 79, 87, 107 S.Ct. 1013, 94 L.Ed.2d 72 (1987) (recognizing “the need to allow some latitude for honest mistakes that are made by officers in the dangerous and difficult process of making arrests and executing search warrants”). An officer who drafts an affidavit, types up an application and proposed warrant, and then obtains a judge’s approval naturally assumes that he has filled out the warrant form correctly. Even if the officer checks over the warrant, he may very well miss a mistake. We all tend toward myopia when looking for our own errors. Every lawyer and every judge can recite examples of documents that they wrote, checked, and double-checked, but that still contained glaring errors. Law enforcement officers are no different. It would be better if the officer recognizes the error, of course. It would be better still if he does not make the mistake in the first place. In the context of an otherwise proper search, however, an officer’s failure to recognize his clerical error on a warrant form can be a reasonable mistake.
*569 The Court reaches a different result by construing the officer’s error as a mistake of law rather than a mistake of fact. According to the Court, the officer should not receive qualified immunity because “no reasonable officer could believe that a warrant that plainly did not comply with [the particularity] requirement was valid.” Ante, at 1293. The majority is surely right that a reasonable officer must know that a defective warrant is invalid. This much is obvious, if not tautological. It is also irrelevant, for the essential question here is whether a reasonable officer in petitioner’s position would necessarily know that the warrant had a clerical error in the first place. The issue in this case is whether an officer can reasonably fail to recognize a clerical error, not whether an officer who recognizes a clerical error can reasonably conclude that a defective warrant is legally valid.
The Court gives little attention to this important and difficult question. It receives**1297 only two sentences at the very end of the Court’s opinion. In the first sentence, the Court quotes dictum from United States v. Leon, 468 U.S. 897, 923, 104 S.Ct. 3405 (1984), to the effect that “ ‘a warrant may be so facially deficient- i.e., in failing to particularize the place to be searched or the things to be seized-that the executing officers cannot reasonably presume it to be valid.’ ” Ante, at 1294. In the second sentence, the Court informs us without explanation that “[t]his is such a case.” Ante, at 1294. This reasoning is not convincing.
To understand the passage from Leon that the Court relies upon, it helps to recognize that most challenges to defective search warrants arise when officers rely on the defect and conduct a search that should not have occurred. The target of the improper search then brings a civil action challenging the improper search, or, if charges have been filed, moves to suppress the fruits of the search. The inquiry in both instances is whether the officers’ reliance on the defect was reasonable. See, e.g., Garrison, supra (apartment wrongly searched because the searching officers did not realize that *570 there were two apartments on the third floor and obtained a warrant to search the entire floor); Arizona v. Evans, 514 U.S. 1, 115 S.Ct. 1185, 131 L.Ed.2d 34 (1995) (person wrongly arrested and searched because a court employee’s clerical error led officer to believe a warrant existed for person’s arrest); McCleary v. Navarro, 504 U.S. 966, 112 S.Ct. 2324, 119 L.Ed.2d 243 (1992) (White, J., dissenting from denial of certiorari) (house wrongly searched because informant told officers the suspect lived in the second house on the right, but the suspect lived in the third house on the right).
The language the Court quotes from Leon comes from a discussion of when “an officer [who] has obtained a [defective] warrant and abided by its terms” has acted reasonably. 468 U.S., at 922, 104 S.Ct. 3430. The discussion notes that there are some cases in which “no reasonably well trained officer should rely on the warrant.” Id., at 923, 104 S.Ct. 3430. The passage also includes several examples, among them the one that the Court relies on in this case: “[D]epending on the circumstances of the particular case, a warrant may be so facially deficient- i.e., in failing to particularize the place to be searched or the things to be seized-that the executing officers cannot reasonably presume it to be valid.” Ibid.
The Court interprets this language to mean that a clerical mistake can be so obvious that an officer who fails to recognize the mistake should not receive qualified immunity. Read in context, however, the quoted language is addressed to a quite different issue. The most natural interpretation of the language is that a clerical mistake can be so obvious that the officer cannot reasonably rely on the mistake in the course of executing the warrant. In other words, a defect can be so clear that an officer cannot reasonably “abid[e] by its terms” and execute the warrant as written. Id., at 922.
We confront no such issue here, of course. No one suggests that the officer reasonably could have relied on the defective language in the warrant. This is a case about an officer being unaware of a clerical error, not a case about an officer relying on one. The respondents do not make the *571 usual claim that they were injured by a defect that led to an improper search. Rather, they make an unusual claim that they were injured simply because the warrant form did not contain the correct description of the property to be seized, even though no property was seized. The language from Leon is not on point.
**1298 Our Court has stressed that “the purpose of encouraging recourse to the warrant procedure” can be served best by rejecting overly technical standards when courts review warrants. Illinois v. Gates, 462 U.S. 213, 237, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). We have also stressed that qualified immunity “provides ample protection to all but the plainly incompetent or those who knowingly violate the law.” Malley, 475 U.S., at 341, 106 S.Ct. 1092. The Court’s opinion is inconsistent with these principles. Its analysis requires our Nation’s police officers to concentrate more on the correctness of paper forms than substantive rights. The Court’s new “duty to ensure that the warrant conforms to constitutional requirements” sounds laudable, ante, at 1293, n. 6, but would be more at home in a regime of strict liability than within the “ample room for mistaken judgments” that our qualified immunity jurisprudence traditionally provides, Malley, supra, at 343, 106 S.Ct. 1092.
For these reasons, I dissent.
[Groh v. Ramirez, 540 U.S. 551, 124 S.Ct. 1284 (U.S.,2004.)]
U.S. Department of Agriculture, 815 F.2d. 369, ACLU Foundation v. Barr, 952 F.2d. 457, 293 U.S. App. DC 101, (CA DC 1991).
“When lawsuits are brought against federal officials, they must be brought against them in their “individual” capacity not their official capacity. When federal officials perpetrate constitutional torts, they do so ultra vires (beyond the powers) and lose the shield of immunity.”
[Williamson v. U.S. Department of Agriculture, 815 F.2d. 369, ACLU Foundation v. Barr, 952 F.2d. 457, 293 U.S. App. DC 101, (CA DC 1991)]
Gallegos v. Haggerty, N.D. of New York, 689 F. Supp. 93 (1988)
“Personal involvement in deprivation of constitutional rights is prerequisite to award of damages, but defendant may be personally involved in constitutional deprivation by direct participation, failure to remedy wrongs after learning about it, creation of a policy or custom under which unconstitutional practices occur or gross negligence in managing subordinates who cause violation.”
[Gallegos v. Haggerty, N.D. of New York, 689 F. Supp. 93 (1988)]
 Government officials enjoy qualified immunity from civil damages unless their conduct violates “clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); see also Behrens, 516 U.S. at 306 (describing Harlow’s standard as one of “objective legal reasonableness”). “A public official is not entitled to qualified immunity when the contours of the allegedly violated right were sufficiently clear that a reasonable official would understand that what he [was] doing violate[d] that right.” Osolinski v. Kane, 92 F.3d 934, 936 (9th Cir. 1996) (alterations in original) (citation and internal quotations omitted). Determining whether a public official is entitled to qualified immunity “requires a two-part inquiry:
(1) Was the law governing the state official’s conduct clearly established?
(2) Under that law could a reasonable state official have believed his conduct was lawful?” Browning v. Vernon, 44 F.3d 818, 822 (9th Cir. 1995) (citing Act Up!/Portland v. Bagley, 988 F.2d 868, 871-72 (9th Cir. 1993)).
This standard ” `gives ample room for mistaken judgments’ by protecting `all but the plainly incompetent or those who knowingly violate the law.’ ” Hunter v. Bryant, 502 U.S. 224, 229 (1991) (per curiam) (quoting Malley v. Briggs, 475 U.S. 335, 343 (1986)).
The general rule at common law was that in order for a government official to be protected by absolute immunity for common law torts, not only did the official have to be acting within the outer perimeter of his/her official duties, but the conduct at issue also had to be discretionary in nature. Westfall v. Irwin, 484 U.S. 292, 297-298 (1988). In enacting the Federal Employees Liability Reform and Tort Compensation Act of 1988 (FELRTCA), Congress abrogated this common law rule and extended absolute immunity for common law torts to all federal employees regardless of whether the conduct at issue was discretionary. See United States v. Smith, 499 U.S. 160 (1991). FELRTCA confers such immunity by making the Federal Tort Claims Act the exclusive remedy for all common law torts committed by federal employees while acting within the scope of their office or employment. 28 U.S.C. § 2679(b)(1). However, the immunity conferred by FELRTCA does not extend or apply to suits against federal employees for violation of the Constitution or federal statutes. Thus, government officials sued for constitutional torts continue to be protected only by qualified immunity. 28 U.S.C. § 2679(b)(2). See Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982); Butz v. Economou, 438 U.S. 478 (1978). Where applicable, qualified immunity protects an official from trial and the burdens of litigation. See Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).
THE SIGNIFICANCE OF BOGAN V. SCOTT-HARRIS FOR LOCAL
GOVERNMENTS AND THE IMPACT OF LEGISLATIVE IMMUNITY
“The Supreme Court vs. City Hall: Judging the Outcome of Recent Rulings”
Municipal Lawyer (September/October 1998)
by Benjamin E. Griffith
The Supreme Court on March 3, 1998 extended legislative immunity to local government officials in Bogan v. Scott-Harris.1 Until Bogan, many assumed that legislators–federal, state or regional–enjoyed absolute immunity from civil liability for legislative activities.2 With origins in Parliament’s struggle with the English crown over 500 years ago, legislative immunity may shield officials from questioning pursuant to subpoena, section 1983 claims, claims for attorney’s fees and even criminal prosecution for legislative acts.3
Bogan extended legislative immunity’s cloak to local government officials against whom a trial court jury had returned substantial damage verdicts for eliminating an employee’s job through a budget-cutting measure. Immunity was upheld despite findings the officials had retaliated against the employee for engaging in constitutionally protected speech.
The Court had previously extended legislative immunity to regional legislators, and lower courts applied it to local legislators, 4 but not until Bogan did the Court explicitly apply it to local municipal officials performing legislative functions. Moreover, Justice Marshall’s dissent eighteen years earlier in Lake Country5 left open the question of whether egregious “legislative” misconduct falls outside the scope of legislative immunity.
Bogan answered both questions, holding city officials “absolutely immune from suit under Section 1983 for their legislative activities,”6 even in the face of a jury’s finding that “constitutionally sheltered speech was a substantial or motivating factor” underlying their conduct.7
Facts of the Case
Janet Scott-Harris was an African-American serving as City Administrator and sole employee of the Health & Human Services Department of Fall River, Massachusetts. Her job was eliminated by an 8-2 vote of the city council. She allegedly exercised her First Amendment rights when she charged Dorothy Bitcliffe, another city employee serving under her supervision, with making repeated racial and ethnic slurs about her colleagues –remarks that Scott-Harris deemed offensive to blacks and those of French heritage. When Scott-Harris prepared the charges, Bitcliffe allegedly used “political connections” with other officials, including Council Vice-President Roderick, to get the punishment reduced to a 60-day suspension without pay. With the charges pending, the next fiscal year’s budget was prepared, and it included eliminating the department whose sole employee was Scott-Harris. Her section1983 suit charged the city, the entire city council and mayor with racial motivation and violation of First Amendment rights. City officials claimed their actions were legislative and protected by legislative immunity. The jury exonerated all defendants on the race discrimination charge, but held Bogan and Roderick liable for damages since “constitutionally sheltered speech was a substantial or motivating factor” underlying their conduct. After the federal district court denied Bogan and Roderick’s motions for judgment notwithstanding the verdict, the Second Circuit affirmed.
A unanimous Supreme Court, speaking through Justice Clarence Thomas, reversed and held that these two local government officials were entitled to absolute legislative immunity from liability for their legislative activities. Tracing the legislative immunity doctrine back to its roots in common law and reason, the Court held that “local legislators are entitled to absolute immunity from section 1983 liability for their legislative activities.” Immunity attaches to all actions taken “in the sphere of legitimate legislative activity” and cannot be overcome by proof of discriminatory, unconstitutional or illegal motive or intent on the part of the official performing the legislative act.
Rationale for Extending Immunity
The Court reasoned that the actions of Council Vice-President Roderick in voting for the ordinance were “quintessentially legislative” and that Mayor Bogan’s actions in introducing the budget and signing the budget-cutting ordinance into law were “formally legislative” even though the Mayor was an executive official, since his actions were “integral steps in the legislative process.”8 Their legislative decision-making activities involved termination of a position and had “prospective implications that reach well beyond the particular occupant of the office.”9
The ordinance “bore all of the hallmarks of traditional legislation” and “reflected a discretionary, policymaking decision implicating the budgetary priorities of the city and the services the city provides to its constituents.”10 The City Council was governing “in a field where legislators traditionally have power to act,” and the challenged activities of the Mayor and Council Vice-President were “undoubtedly legislative.”11
Impact of Bogan on Local Government
Local government officials performing legislative functions often ask if they have personal liability exposure for their official actions. Before Bogan, no clearcut answer could be given to such questions as whether a city or county official could be held liable to
- a disgruntled government employee whose position has fallen to the budget ax?
- a person aggrieved by the passage of a law, ordinance or legislative resolution?
- a trigger-happy constituent aggrieved over statements made by an official during performance of official duties?
Bogan minimizes liability exposure when these actions constitute “legitimate legislative activity.”
Political vs. Litigation Hazards
At the grassroots level of government, lively debate energizes the decision-making process. That process has its hazards, but they should be political and not litigation hazards. Political reality, at two or four-year intervals, empowers registered voters of every municipal ward and county supervisor district to help the democratic process function responsively and to help remind elected officials that their office is a public trust. Bogan explicitly endorses this view.
What is a “Legislative Act”?
Local government officials performing legitimate legislative functions are now shielded from civil liability based on their actions, conduct and decisions that are integrally related to quintessentially and undoubtedly legislative functions. In this context, a “legislative” act is “an integral part of the deliberative and communicative processes by which [legislators] participate in committee and [legislative] proceedings” as well as any act that relates to “the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of [the legislative body].”12
“Sphere of Legitimate Legislative Activity”
Based on federal, state and regional legislative immunity precedent, the following may be within the “sphere of legitimate legislative activity”:
- Balancing social needs and rights of different groups.13
- Formulation of policy.14
- Decision-making applicable to the community, as opposed to acts directed at one or a few targeted individuals.15
- Introducing and voting for legislation.16
- Making a speech favoring or opposing pending legislation.17
- Voting for a local government redistricting plan, even one that allegedly discriminates against minorities.18
- Confirming an executive appointment.19
- Sending legislative communications.20
- Voting to seat or unseat a member.21
- Failing to enact legislation, as in failing to adopt an alternative to a redistricting plan submitted by the Governor.22
- Making a speech for or against pending legislation.23
- Conducting hearings, receiving information for committee consideration from confidential sources, issuing subpoenas and examining witnesses as part of a legislative committee’s authorized investigative hearing process, including developing a legislative redistricting plan.24
- Hiring and firing employees.25
- Publishing reports for legislative purposes.26
- Authorizing media coverage for open hearings.27
Immunity Not a Panacea
Bogan provides a cloak of immunity for legitimate legislative activities of local government officials, but it won’t make their political life a bed of roses. Insulating legislative conduct from judicial interference through section 1983 suits for damages, declaratory judgments and injunctions goes no further than the nature of the legislative act itself. It does not extend to administrative acts or performance of ministerial duties, and liability exposure continues for those slugs who seek to exploit public office for personal gain, as these examples illustrate:
- Undertaking acts without legislative authority, even if “legislative acts.”28
- Filing incomplete or false reports of campaign expenses and contributions, falsely disclosing income sources, or falsely claiming travel expense reimbursement.29
- Soliciting and accepting bribes.30
- Making defamatory remarks in a press conference, press release or television broadcast.31
- Trying to influence or pressure another branch of government.32
- Making administrative personnel decisions that single out and affecting individuals differently from others, as opposed to legislative acts involving establishment of public policy.33
- Engaging in illegal or unconstitutional conduct by legislative staff or conduct beyond what is “essential to the deliberation” of the legislative body.34
- Engaging in legislative acts of state legislators subject to criminal prosecution in federal court,35 except that legislative immunity is available to state legislators as a defense to a prosecution under RICO.36
Legislative immunity is a personal defense assertable by an official for actions taken “in the sphere of legitimate legislative activity.” It doesn’t bar suits against local government entities for constitutional and federal statutory violations under 42 U.S.C. §1983, and may be waived by an “explicit and unequivocal renunciation” of the immunity protection,37 or by intervening in an action to defend the constitutionality of a law, as in May v. Cooperman.38 There the Attorney General and Governor of New Jersey refused to defend a “one minute period of silence” statute against a constitutional attack. The Senate President and Speaker of the House then intervened and defended the statute throughout the litigation. The court held the statute unconstitutional and found these legislators had moved outside the sphere of legitimate legislative activity, waived their legislative immunity by undertaking the executive branch’s responsibility to defend the statute, and were liable for attorneys’ fees under 42 U.S.C. §1988.
Almost two decades after Lake Country, the Court has explicitly extended legislative immunity to local government legislators. Like their brothers and sisters in federal, state and regional legislative bodies, local municipal and county officials exercise legislative powers for the public good. Precedent concerning the nature, scope and applicability of legislative immunity can be found in the wealth of case law involving immunity claims of federal, state and regional legislators. Regardless of the level of government at which they serve, their actions in the legislative sphere should not be inhibited by the chilling effect of section 1983 suits or other forms of judicial interference, nor should their exercise of legislative discretion be distorted by fear of personal liability arising from legislative activities they are called on to perform.
At the local government level, the decision-making process would surely suffer if citizen-legislators — often serving part-time — had their time and energy sapped away by defending lawsuits that challenge the propriety, motivation, thoroughness and wisdom of legislative actions. Bogan v. Scott-Harris makes clear that the threat of civil liability in the absence of legislative immunity would likely deter our best and brightest citizens-public servants from making that bold leap into service on the local government level. The ultimate check and balance on legislative abuse accordingly should remain at the ballot box through the electoral process.
1140 L.Ed.2d 79 (1998).
2Id. at 85.
3United States v. Helstoski, 442 U.S. 477 (1979); United States v. Johnson, 383 U.S. 169 (1966).
4Lake Country Estates v. Tahoe Regional Planning Authority, 440 U.S. 391 (1979). Eight circuits have extended legislative immunity to local legislators performing traditional legislative functions. M. Ross, Sword & Shield Revisited – A Practical Approach to Section 1983 516 n.31 (State and Local Government Law Section, ABA 1998), citing Atchison v. Raffiani, 708 F. 2d 96 (3rd Cir. 1983); Bruce v. Riddle, 631 F.2d 272 (4th Cir. 1980); Hernandez v. City of LaFayette, 643 F. 2d 1188 (5th Cir. 1980); Haskell v. Washington Township, 864 F. 2d 1266 (6th Cir. 1988); Reed v. Village of Shorewood, 704 F. 2d 943 (7th Cir. 1983); Gorman Towers, Inc. v. Bogoslavsky, 626 F. 2d 272 (8th Cir. 1980); Kuzinich v. County of Santa Clara, 689 F. 2d 1345 )9th Cir. 1982); Espanola Way Corp. v. Meyerson, 690 F. 2d 837 (11th Cir. 1982), cert. denied, 460 U. S. 1039 (1983).
5Lake Country, 440 U.S. at 407.
6Bogan, 140 L.Ed.2d at 88.
7Id. at 85.
8Id. at 89.
12Gravel v. United States, 408 U.S. 606, 625 (1972). Justice Felix Frankfurter’s description of the parameters of legislative immunity illustrates its breadth, extending immunity to “the giving of a vote, to the making of a written report, and to every other act resulting from the nature, and in the execution, of the office; …securing to every member exemption from prosecution, for everything said or done by him, as a representative, in the exercise of the functions of that office, without inquiring whether the exercise was regular according to the rules of the house, or irregular and against their rules.” Tenney v. Brandhove, 341 U.S. 367, 374 (1951).
13Gutierrez v. Municipal Court, 838 F.2d 1031, 1046 (9th Cir. 1988).
14Cf. Cinevision v. City of Burbank, 745 F.2d 560, 580 (9th Cir. 1984).
15Negron-Gaztambide v. Hernandez-Torres, 35 F.2d 25 (1st Cir. 1994); Bateson v. Geisse, 857 F.2d 1300, 1304 (9th Cir. 1988).
16See generally, United States v. Helstoski, supra n.3.
17See generally, United States v. Johnson, supra n.3.
18Latino PAC vs. City of Boston, 581 F. Supp. 478 (D. Mass. 1984).
19Kraus v. Kentucky State Senate, 872 S.W.2d 473 (Ky. 1994).
20Ray v. Proxmire, 581 F.2d 988 (D.C. Cir. 1978); Rousack v. Harsha, 470 F. Supp. 285 (M.D. Pa. 1978).
21Porter v. Bainbridge, 405 F. Supp. 83 (S.D. Ind. 1975).
22Marylanders for Fair Representation v. Schaeffer, 144 F.R.D. 292 (D. Md. 1992).
23See generally, United States v. Johnson, supra n.3.
24Holmes v. Farmer, 475 A.2d 976 (R.I. 1984); Gravel v. United States, supra; Romero-Barzelo v. Hernandez-Agosto, 75 F.3d 23 (1st Cir. 1996).
25Browning v. Clerk, United States House of Representatives, 789 F.2d 923 (D.C. Cir. 1986); Prelesnik v. Esquina, 347 N.W.2d 226 (Mich. App. 1984).
26Doe v. McMillan, 412 U.S. 306 (1975).
28Thompson v. Ramirez, 597 F. Supp. 730 (D. P.R. 1984).
29United States v. Rose, 28 F.3d 181 (D.C. Cir. 1994); United States v. Myers, 692 F.2d 821 (2nd Cir. 1982); United States v. Clay, 420 F. Supp. 853 (D. D.C. 1976).
30United States v. Brewster, 408 U.S. 501 (1972).
31Williams v. Brooks, 945 F.2d 1322 (5th Cir. 1991); Hutchinson v. Proxmire, 443 U.S. 111 (1979); Cole v. Gray, 638 F.2d 804 (5th Cir. 1981); Benford v. ABC, 502 F. Supp. 1148 (D. Md. 1980).
32See generally, Doe v. McMillan, supra n.26; Gravel v. United States, supra n.12; United States v. Johnson, supra n. 3.; Cole v. Gray, supra n.31.
33Gross v. Winter, 692 F. Supp. 1420 (D. D.C. 1988); Negron-Gaztambide v. Hernandez-Torres, supra; Yeldell v. Cooper Green Hospital, 956 F.2d 1056 (11th Cir. 1992).
34See generally, Hutchinson v. Proxmire, supra n.31, and Doe v. McMillan, supra n.26.
35United States v. Gillock, 445 U.S. 360 (1980).
36Chappell v. Robbins, 73 F.3d 918 (9th Cir. 1996).
37Cf. United States v. Helstoski, supra n.3, at 491.
38578 F. Supp. 1308 (D. N.J. 1984).
Ben Griffith is Co-Chair of the Government Operations and Liability Committee of the ABA’s Section of State and Local Government Law and member of IMLA’s Litigation and Risk Management Section. He served as President of the National Association of County Civil Attorneys, the Mississippi Bar’s Government Law Section, and the Mississippi Association of County Board Attorneys, and serves on the Governmental Liability Committee of both Defense Research Institute and the ABA’s Section of Torts and Insurance Practice. His practice emphasizes defense of local government in voting rights, redistricting and civil rights litigation. Mr. Griffith has served as Board Attorney for the Bolivar County Board of Supervisors since 1983 and is a partner in the Cleveland, Mississippi, law firm of Griffith & Griffith.