Suits brought under section 1983 of title 42 of the United States Code have provided additional protection of constitutional rights. Recently, the use of this statute has increased markedly resulting in new areas of controversy. In this Article, Professor Nahmod examines the issue of absolute individual immunity under section 1983. He explores the doctrine's historical background, the distinction between actions for damages and injunctions, and projects the doctrine's effect on certain individuals in the future.Section 1983 of Title 42 of the United States Code, a powerful constitutional "sword" for plaintiffs, makes "persons" liable for violations of the Fourteenth Amendment.1 Its broad facial language admits no exceptions. Yet until recently local governmental entities were considered by the United States Supreme Court not to be "persons" and thus not liable under the statute's provisions.2 More surprisingly, certain individuals who are clearly "persons" in the common understanding of that term have been given an absolute immunity from liability for damages under 1983.3 The purpose of this Article is to examine and analyze who is entitled to this immunity.
The difference between absolute and qualified immunity is of immense practical significance for the individual. No inquiry into the absolutely immune defendant's state of mind is permitted, while qualified immunity, an affirmative defense, necessitates such an inquiry after the plaintiff has made out a 1983 cause of action.4 Typically, an action against an absolutely immune defendant will be dismissed on motion which simply sets out his status and his having acted within his official capacity.
The Supreme Court to date has established three classes of absolutely immune individual defendants:
judges,6 and
prosecutors.7
