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Gerald-Esquire
Gerald-Esquire, Lawyer
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Experience:  30 years of experience
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WHEN WAS ABSOLUTE IMMUNITY INTRODUCED INTO LAW? HAS THE LAW

Customer Question

WHEN WAS ABSOLUTE IMMUNITY INTRODUCED INTO LAW? HAS THE LAW EVER BEEN REVISITED, UPDATED TO MORE PRESENT STANDARDS. DO YOU KNOW OF A WEBSITE THAT DEALS WITH ABSOLUTE IMMUNITY WITH PRIVATE PRACTICES/ATTORNEYS? ANY CASE LAWS?
Submitted: 10 months ago.
Category: Family Law
Expert:  Gerald-Esquire replied 10 months ago.

Hello,

Thank you for using Just Answer. I want to provide you the best service I can. Please feel free to ask any follow up questions you have.

I am an attorney with 30 years of experience; I hope to provide you information that will help you in resolving your question.

Absolute immunity and it's related principle qualified immunity are not statutory creations. They are concepts found by the United States Supreme Court to exist in Common Law and were enunciated by the Supreme Court to temper the effects of 42 U.S.C. § 1983 which was enacted on April 20, 1871 as part of the Civil Rights Act of 1871.

You can not address the history of Absolute Immunity without first addressing the history of 1983 civil actions against government officials. Prior to the Civil War Government Officials had "Sovereign Immunity from civil suit for their actions as government officials. This immunity was derived from the British Common law that transferred to the States at the time of the revolution. The concept is that the "King can do no wrong."

After the Civil War and during Reconstruction many officials in State Governments took to abusing their power to harm and disenfranchise the recently freed slaves. As a consequence the federal Government enacted legislation to try to bring such officials to justice civilly. Thus the enactment of 42 USC 1983 and the creation of "1983" lawsuits that can be brought against public officials. Specifically, Section 1983 imposes liability on state and local officials who, acting under color of law deprive plaintiffs of rights under the Constitution and federal law.

However, permitting lawsuits to occur whenever someone would disagree with policy decisions risked the absolute shut down of the functionality of government. The Court therefore fashioned the concepts of Absolute Immunity for those individuals exercising their authirty to make decisions that required a degree of discretion.

The Court first enunciated the doctrine in 1871 in the case of Bradley v. Fisher, 80 U.S. 13 Wall. 335 335 (1871)

https://supreme.justia.com/cases/federal/us/80/335/case.html

In Scheuer v. Rhodes, 416 U.S. 232 (1974)The Court explained the underlying rationale for immunity:

[T]he public interest requires decisions and actions to enforce laws for the protection of the public . . . . Public officials, whether governors, mayors or police, legislators or judges, who fail to make decisions when they are needed or who do not act to implement decisions when they are made do not fully and faithfully perform the duties of their offices. Implicit in the idea that officials have some immunity— absolute or qualified —for their acts, is a recognition that they may err. The concept of immunity assumes this and goes on to assume that it is better to risk some error and possible injury from such error than not to decide or act at all.

https://supreme.justia.com/cases/federal/us/416/232/case.html

There has over the years developed an extensive body of case law that addresses 1983 Actions, Absolute Immunity and Qualified Immunity.

The Constitutional Society has a great deal of material addressing the subject which can be found here:

http://www.constitution.org/brief/forsythe_42-1983.htm

These pages from the Federal Practice Manual are helpful as well:

http://www.federalpracticemanual.org/node/48#2

This Law Review Article discusses the matter in some depth, and discusses more modern development to the law on this subject:

https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=0ahUKEwiz293b29XLAhXMlx4KHcB8ARYQFgghMAA&url=http%3A%2F%2Fdigitalcommons.tourolaw.edu%2Fcgi%2Fviewcontent.cgi%3Farticle%3D1262%26context%3Dlawreview&usg=AFQjCNGsP8ZU1dnH5Rmx6A-b1EUYeyaEdw&sig2=FKWUv7XSCe5CfxE3ZTiMjA&bvm=bv.117218890,d.dmo

The types of attorneys who are most focused on this work are Civil Rights Attorneys and Attorneys representing Prisoners. You can find Civil Rights Attorneys here:

http://lawyers.findlaw.com/lawyer/practice/civil-rights

In addition to the cases that I referenced, the materials I referenced include additional case law.

I hope the information I provide is useful to you. I want you to be comfortable and satisfied with my attempt to assist you. Please, if you have ANY follow up questions, feel free to ask. Please note that I am generally unavailable Friday evening through Sunday.

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Good luck.

Please note: Information is educational and not given as legal advice. Only your local attorney can give legal advice. I can't establish or accept an attorney-client relationship with you. All posts are available for public viewing.

Kind regards,

Gerald

Expert:  Gerald-Esquire replied 10 months ago.

If you can not open the law review article you can Google it by name:

2008 Absolute Immunity: General Principles and Recent Developments Erwin Chemerinsky

Kind regards,

Gerald

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