Legal Immunity

Fifth and Fourteenth Amendments

This page was last updated on Monday November 14, 2016

Legal Definition of Immunity

Immunity refers to right of exemption from duty or penalty. Judges, lawyers, and certain other people have immunity as dictated by law.  This means that these persons can do most anything they want in the courthouse and cannot be sued. However, in a jury trial and this fact can be disclosed to the jury. The court’s only recourse is to strike the disclosure from the record and admonish the jury to ignore the disclosure. That is much like the fellow in the Wizard of Oz who says ‘ignore that man behind the curtain’. Otherwise, the court must declare a mistrial and the whole process begins anew. There is no law that opposes the telling of the truth, some judges don't like to hear it, but there is a law about lying, especially by omission.

Under the law, a person can sue another person, a partnership, corporation, or the government.  However, most government entities and specific persons are protected by immunity laws. The legal theory behind immunity is that those who have it cannot do their job without it. From my viewpoint, the only reason that a person would need immunity is that they plan to harm someone or break the law.

The prosecutor is the only person who can decide whether to file criminal charges against a person he or she believes to have committed a crime. The problem with this arrangement is, that by the time the prosecutor has tried the criminal case, the perpetrator may not have any remaining resources that the victim may attach in civil suit. So the victim loses again.

Common sense tells us that when somebody makes a claim, the proof that goes with the claim.  So when a woman claims that her husband has abused her, the evidence would show that he did or did not abuse her. However, the problem with false allegations of abuse is that there usually no witnesses and even if they were present, they would not notice any abusive conduct. The reason for this is that the instigator is not going to abuse their spouse in the presence of others. In other words, she can claim abuse but there is no real evidence to support her claim and that is why she should be on trial and not the person she has falsely accused.  So the government often avoids that issue by making their malicious litigation too expensive to fight. The problem is that many prosecutors have said that they would not have the accuser testify because their testimony often leads to acquittal.

Several years ago, lawyers for the prosecutors in a criminal matter argued before the Supreme Court that they were immune from lawsuits because they were acting within the scope of their job. The problem was that the prosecutors have concealed information that lead to the exoneration of an innocent party. However, ordinary people cannot sue prosecutors for their official acts, although they made them with malicious intent. Very often the government avoids that issue by making malicious litigation too expensive to fight.

The main reason that prosecutors follow the ‘no drop’ policy is that they do not want a reputation for being soft on crime. The other reason is that if they are wrong, they cannot be tried and sued in civil courts. Some people have mentioned the debacle that occurred in the O.J. Simpson trial and its prosecutorial problems. That is not quite true, it was a zoo and the fault can be laid at the feet of the prosecution and the presiding judge. Moreover, Marcia Clark was more interested in a book deal than the facts that two persons were murdered and the police were planting evidence. The jury was treated so badly, and the trial took so long, that no one should have been surprised by the verdict.

Types of Immunity

A Good Samaritan is one who unselfishly helps another without expectation of remuneration or reward. This is why Good Samaritan laws provide a level of protection from lawsuits to those who give aid to, or rescue, another injured or endangered person. The qualities of care are those that society expects of each person for the protection of others and their own.

‘Mens Rea’ is a Latin term that literally means ‘a guilty mind’ and that mental state establishes criminal intent. So the connection between ‘a guilty mind’ and immunity is premeditation and that leads to an act that was previously in mind and planned. Otherwise, a person would not need or want immunity because immunity infers and implies a guilty mind. It is a vestige of the long discredited notion of social supremacy and so the notion of immunity and class distinction is as old as human civilization.

Eminent Domain is the right of a government entity to take private property for public use, without the owner's consent. Yet the government must pay just compensation to the property owner. However, what is ‘just’ compensation? Some government agencies have abused the right of Eminent Domain by taking property from one person and reselling it to another at a profit. As a result, the original property owners lost their home, their land, and the profit that they would have made if they kept it. This called government-sponsored theft.

Qualified Immunity first appears in the Constitution of the United States of America (Article I Section 6 Part 1). Constitutional framers wanted to ensure that the members of congress had rights of free speech and debate in both houses of congress. Nevertheless, members were not immune in matters of treason, felony, or breach of the peace. The problem with that was that a breach of the peace can mean almost anything from wearing mismatched stockings to saying that the Speaker was a fink. So the first session of Congress proposed and sent the first twelve amendments (the Bill of Rights) to the States. Nine of the thirteen states ratified ten amendments on December 15, 1791. Massachusetts, Georgia, and Connecticut ratified them in1939 and that accounts for the thirteen original colonies.

Many years ago, the larva of the Mediterranean fruit fly destroyed fruit in parts of California so the State decided to break the fly's life cycle by introducing sterile flies. Unfortunately, the State released fertile flies and the problem escalated to a higher level of urgency. Government officials decided to spray the infested areas with an insecticide and in doing so, it caused extensive property damage and California taxpayers would bear the cost of lengthy litigation. So California and the Federal Government created programs to compensate victims.

Judicial Immunity is an artifact from English Common Law. It is the absolute immunity of a judge from civil liability for any act he does officially. Apparently, no one can deprive a judge of this immunity for reckless error, malice, unlawful discrimination, or exceeding authority. When a victim seeks money damages, the 1964 Civil Rights Act provides some civil relief.

Prosecutorial Immunity is a hybrid of judicial immunity, for prosecutors act in executive and judicial roles. A large part of this arises from the long discredited notion of prosecutorial discretion. The problem is that the 'Separation of Powers' doctrine prohibits one branch of government from infringing or exercising the powers belonging to another branch of government. This means that prosecutors do not have actual absolute immunity for their personal or their public acts.

Congress on March 4, 1794 passed the Eleventh Amendment to the United States Constitution, and the states ratified them on February 7, 1795. The states adopted and ratified the Eleventh Amendment to overrule the U.S. Supreme Court’s decision in Chisholm vs. Georgia (2 U.S. 419-1793). It said that the Judicial power of the United States does not extend to any suit in law or equity against any other state. Although their own citizens could not sue the states, citizens of another state could sue them.

This meant that citizens of other states may have more substantial rights than those citizens of their own state. However, if the Equal Rights Amendment passes, then this law cannot insulate the states from suits that individuals would bring (based on gender). Moreover, the Equal Protection Clause of the Fourteenth Amendment requires each state to provide equal protection to all persons within its jurisdiction. This means that each person has the same rights, privileges, and immunities. In Clinton vs. Jones, (520 U.S. 681-1997), the United States Court of Appeals for the Eighth Circuit, found that the President, like all other government officials, is subject to the same laws that apply to all other members of our society.


Two Court Decisions Limiting Immunity

In Hoffman vs. Harris (511 U.S. 1060 (1994)) a father sued his former wife, two social workers, and Kentucky's Cabinet for Human Resources. His former wife told the social workers that she suspected that her husband was sexually molesting his daughter. Though this is a common ploy in custody disputes, the social workers did not investigate the allegation and did obtain an ex-parte order that suspended the father's visitation rights.

The United States Court of Appeals for the Sixth Circuit held that social workers are absolutely immune from liability. Its reasoning was that, due to their quasi prosecutorial function in the initiation of child abuse proceedings, social workers are absolutely immune from liability for filing juvenile abuse petitions. The father petitioned for appellate review by the Supreme Court that it subsequently denied.

In his Supreme Court dissent, Thomas objected to absolute immunity, as applied to social workers. Thomas doubted that any social worker enjoyed absolute immunity for their official duties in 1871. He doubted that social workers with official duties existed in 1871. The social workers did not convince Thomas, who are often involved in civil family welfare proceedings, can ever function as prosecutors. He said that we should address the important threshold question whether social workers are, under any circumstances, entitled to absolute immunity. Justice Scalia provisionally joined in Thomas' dissent.

In Kalina vs. Fletcher (522 U.S. 118 (1997)) a prosecutor (Ms. Lynne Kalina) filed a complaint against a defendant in connection to a school burglary. Based on her certification, a trial court found probable cause leading to the arrest of the defendant. But the prosecutor's certification contained two untruthful statements. The defendant sued the prosecutor for damages, claiming that the prosecutor had violated the defendant's constitutional right to be free from unreasonable seizures. A Federal District Court denied the prosecutor's claim to absolute prosecutorial immunity. Eventually, the case reached the Supreme Court.

42 U.S.C. Sec. 1983.
Civil action for deprivation of rights

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof 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, except 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. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

(1) Color of law means the appearance of some legal right.
(2) Action under color of law has the apparent authority of law but is contrary to law.
(3) Suits in equity pertains to such matters where an adequate and complete remedy cannot be resolved or had at law.

Justice John Paul Stevens wrote the unanimous opinion of the Supreme Court. The Court ruled that Section 1983 creates a remedy against a prosecutor who makes false declarations in a written statement made under an oath. Doctrine of absolute prosecutorial immunity does not protect such conduct. Even if that person is an attorney, the only function the person performs is that of a witness. (Note: I have condensed the Supreme Court Justices' opinions for the purpose of this essay. I have included case identifiers so those who read this paper can locate the original case documents.)


Prosecutorial and Judicial Wrongdoing

A Grand Jury, in many jurisdictions, is a prosecutor's tool. It is a special jury consisting of statutory number of citizens, usually more than 12, that investigates accusations against a person or an agency. Prosecutors usually hold Grand Jury hearings on criminal matters in sessions closed to the public and to the accused. A prosecutor is free to present anything that encourages an indictment and withhold information that would preclude an indictment. Based on this information, a Grand Jury could decide that the information that the prosecutor presents, does or does not warrant an indictment and trial of the accused. In some jurisdictions, an indictment by a Grand Jury absolves the prosecutor of all blame of malicious prosecution.

Record Tampering

In an article that appeared in Wednesday, September 5, 2001 edition of the San Francisco Chronicle, Former District Attorney and now Superior Court Judge Mike Nail disqualified himself after someone discovered that he voided a traffic conviction of the confidential informant on February 8, 2000. The erasure of the conviction came as a result of a private non-judicial meeting between Nail and the officer who had attempted to fix a traffic ticket (material alteration) issued to the informant. According to the article, Nail reportedly said that although it was rare for him to throw out convictions at the request of the police, he could not specifically remember voiding the traffic conviction. Other officials have declined to comment.

Prosecutorial Misconduct

Some years ago, a prosecutor was disbarred for falsely accusing several members of an athletic team of rape when the DNA evidence did not implicate any members of the team. Apparently the accuser wanted to use the accusation to extort money from these young men. Later reports revealed that she had sexual intercourse with several other men (not associated with the team) before she made her false accusation. The problem was that the prosecution ordered that 46 of the 47 members of the team to provide DNA samples because the remaining member was black. DNA testing revealed that none of the team members were involved so Mike Nifong (the District Attorney) went to a private laboratory to do more testing. The problem was that Nifong withheld the evidence and the newspapers falsely that DNA was taken from the underside of a finger nail but they didn't say from where it came. The problem is that DNA samples may contain many sets of DNA and here, the phoney victim had several different sets of DNA in inside her, on her, and in her panties. None of them matched the accused players. In nearly every instance of prosecutorial misconduct, nothing is done to punish the prosecutor. In an extremely rare instance, Mike Nifong was sent to prison.  The date of that incident was March 13, 2006.

Prosecutorial preference is a vestige of the long discredited notion of arrogant class ascendancy and self-importance. Mr. Sheck, Neufeld, and Dwyer stated the phenomenon eloquently, quoting Edwin Meese, former U.S. Attorney General, The thing is, you don't have many suspects who are innocent of a crime. That's contradictory. If a person is innocent of crime, then he is not a suspect. The corollary is this ‘if she is not a suspect then she is innocent’ is false. A premise that cannot be true and false. This is called a contradiction.

Prosecutors convict innocent people for self-gratification, higher social status, and money. Of course they are not alone. They have the help of dishonest cops, jailhouse snitches, and crooked crime lab workers such as Fred Zain, Pamela Fish, and Joyce Gilchrist. These three crime lab technicians received glowing recommendations and other career boosts. Admission of, or reporting wrongdoing hurt a person's career. Last Thursday, August 30, 2001, the Vallejo Times-Herald published an account revealing that falsification by forensic chemist Joyce Gilchrist lead to the wrongful conviction and execution of an innocent man. Another chemist, Laura Schile, discovered the fabrication but she had to resign citing a hostile work environment.

Common Principles

Trials are supposed to reveal the truth and not some convenient fiction. Nonetheless, many lawyers resort to theatrics to hide the truth and so they resort to finger pointing, shouting, brow beating, berating and creating fiction. Moreover, Judge Lance Ito said that he 'accidentally' erased a tape. Ito did not accidentally erase the tape, he removed the write-protect or the read-only tab from the tape cassette and then he depressed the red record button and the black play button together. That is how he conveniently erased the tape. This is called a material alteration and that is why only tamper proof technology should record courtroom testimony.

We should ban pretrial questionnaires. In the O. J. Simpson trial, each prospective juror had to complete an eighty-page questionnaire covering more than 260 items. This process was a search for biased jurors and not for an impartial jury. While the judges and attorneys arrogantly patronized the public on national television, the jurors in the Simpson criminal trial became virtual prisoners of Judge Lance Ito and the prosecution. During the trial Ito sequestered the jurors for 266 days and their rooms and personal effects were subject to both search and seizure.

Moreover, while Lance Ito entertained celebrities, the trial came to a halt. The prosecutor, Marcia Clark, often arrived late and unprepared while the court officials awakened the jurors at 5:30 in the morning. Her flirting, pouting, and coarse language did not help the State's case because she treated the jury as a collection of boorish morons. Not unexpectedly, Clark blamed the jury and everyone else for the trial's outcome. This case should not have taken more than a month to obtain a verdict but it took much longer than that. One reason could be that after the trial, Marcia Clark wrote 'Without a Doubt' which she reportedly received 4.2 million dollars.

So I would abolish the theatrics and require that the courts should treat litigants with civility and respect. Trials are supposed to reveal the truth and not some fraudulent substitute. Nonetheless, many lawyers resort to theatrics to hide the truth and so they resort to finger pointing, shouting, brow beating, berating, deception, and manipulation. One example is filing a complaint and then dropping it just before the court or jury is about to return a verdict. This is  malicious prosecution and the corresponding civil action is known as vexatious litigation.

A factual finding of innocence is different from a ‘not guilty’ verdict. A ‘not guilty’ verdict means that the prosecutor has failed to prove that the accused committed the crime. A factual finding of innocence means that the prosecutor lied or never should have brought the matter to trial. So a factual finding of innocence may allow a person to seek damages but they must have the government's permission to do it. So at best, the chance for recovery is slim but some have successfully sued prosecutors for this kind of conduct but don't count on it.

Edward Steven Nunes