Chapter 8: Limitations on Relief

Updated 2013

This chapter will explore the contours of the primary limitations on suing states, state subdivisions, and state officials in federal court. The first section surveys the Eleventh Amendment and focuses on important recent developments in this area. It covers the abrogation and waiver of sovereign immunity and the availability of prospective injunctive relief under the Ex Parte Young doctrine. The second section discusses the scope of absolute and qualified immunity in Section 1983 suits against public officials in their individual capacities. The final section covers limitations imposed on Section 1983 claims against municipal agencies and governments.

Updated 2013

8.1 Enforcing Federal Rights Against States and State Officials

Updated 2013 by Rochelle Bobroff

Many federal programs, including cash assistance, medical insurance, food stamps, and housing, are implemented through grants to the states. The states are responsible for the administration of these programs and are required to operate them in compliance with federal law./1/ Beneficiaries may have a claim in federal court if a state violates a federal directive in the administration or denial of benefits.     

In addition to public benefit programs, Congress has enacted a series of laws prohibiting discrimination based on race, ethnicity, religion, gender, disability, and age./2/ Most of these laws either contain an express provision allowing suits against states or have been interpreted to allow for such suits./3/ Federal labor laws protecting employees have also been made applicable to the states./4/ As a result, states may violate federal statutes if, for example, they expel students with disabilities from state universities, fire employees who take leave to care for a family member, or refuse to assist prisoners with disabilities with access to bathroom facilities. 

To remedy violations of these federal laws, an aggrieved individual may seek relief from states and/or state officials.

8.1.A. Enforcing Federal Rights Against States

Under the Supremacy Clause of the United States Constitution, state laws or actions violating federal law are invalid./5/ Yet, the Eleventh Amendment of the Constitution provides states with immunity from private suits./6/ In 1974, the Supreme Court held in a case involving welfare rights that injunctive and declaratory relief against state officials does not violate the Eleventh Amendment, but that the Constitution prohibits retroactive monetary damages./7/ Subsequent cases have reaffirmed the availability of injunctive relief against state officials for violations of safety net and civil rights statutes./8/

Many civil rights statutes have attempted to authorize damages against the states by abrogating states' sovereign immunity. Beginning in the mid-1990s, however, the Supreme Court expanded the doctrine of sovereign immunity, based not on the text of the Constitution but rather on “fundamental postulates implicit in the constitutional design./9/ The Court invalidated the abrogation of sovereign immunity in several civil rights statutes. Nevertheless, as explained below, the Court upheld the abrogation of sovereign immunity in later cases involving other statutory provisions./10/ Moreover, an alternative approach authorizing damages which is utilized in the Rehabilitation Act -- tying the waiver of sovereign immunity to the receipt of federal funds -- has to date been very successful in many federal courts of appeals./11/

8.1.B Overview of the Eleventh Amendment

The Eleventh Amendment to the Constitution bars suits in federal court against states by citizens of other countries and other states./12/ In 1890, the Supreme Court held that the Eleventh Amendment also prohibits suits by citizens against their own state./13/ As a result, private parties may not sue a state or state agency by name in federal court unless Congress validly abrogates state sovereign immunity or the state waives its immunity./14/  

State sovereign immunity also extends to state agencies./15/ In determining whether an agency is entitled to Eleventh Amendment immunity, the courts consider various factors, including whether payment of a judgment resulting from the suit would come from the state treasury, the status of the agency under state law, and the agency’s degree of autonomy./16/ The Eleventh Amendment does not, however, immunize local governments from private suits./17

Under Ex parte Young, private parties can sue state officials in their official capacity to enforce federal laws and regulations, but only for prospective injunctive and declaratory relief./18/ Accordingly, there must be an ongoing violation of federal law to support prospective relief./19/ Such relief may include notice to the plaintiff class of the availability of remedies under state law./20/ No damages are recoverable in Ex parte Young suits, but prospective relief may require the incidental expenditure of state funds./21/

State officials may be sued for damages in their individual capacity for violations of federal constitutional or statutory rights committed in the course of official duties but are entitled to claim qualified immunity./22/ Qualified immunity bars recovery insofar as the official’s conduct “did not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”/23/

States and state officials may not be sued in federal court for violations of state law committed in their official capacity regardless of the relief sought./24/ However, federal courts have supplemental jurisdiction to hear state law claims against state officials sued in their individual capacity if the federal claims arise from the same subject matter and provide the federal court with jurisdiction./25/ State immunity rules apply to claims under state law./26/ Additionally, the provision in 28 U.S.C. § 1367(d), which generally tolls the statute of limitations on supplemental claims dismissed in federal court, does not apply to state claims against a state or state agency dismissed on Eleventh Amendment grounds./27/ Tolling does apply to counties which do not have Eleventh Amendment immunity./28/

States have no sovereign immunity protection if the proceeding is initiated or prosecuted by the federal government./29/ This applies even if the federal government is seeking recovery of damages on behalf of an individual, and damages in a suit by the individual would be barred by the Eleventh Amendment./30/ States also lack immunity from suits brought by other states; however, unlike the federal government, a state can only sue another state to protect its own interests, not those of individual citizens./31/

8.1.C. Abrogation of State Sovereign Immunity by Congress

Congress has power to abrogate state sovereign immunity when it does so unequivocally/32/ and pursuant to a grant of constitutional authority. If the abrogation is constitutionally valid, states may be sued in federal court in their own name for violations of relevant statutes to which the abrogation applies, and plaintiffs may recover damages from states if the underlying statute so provides. Since 1996, however, suits against states based on abrogation of immunity and the recovery of damages against states for violations of federal law have been sharply limited./33/

In 1989, the Supreme Court held that Congress had the authority to abrogate immunity in the course of legislating under any of its broad Article I powers, including the Commerce Clause, copyright powers, and bankruptcy./34/ Just seven years later, however, in Seminole Tribe of Florida v. Florida, the Court held that Congress had no power to abrogate immunity under the Commerce Clause and added that it lacked such power under any other Article I provision./35/ The Court acknowledged, however, that Congress did have the power to abrogate Eleventh Amendment immunity of states under the legislative enabling clause of Section 5 of the Fourteenth Amendment./36/

Yet, the next Term, the Court limited the legislative authority of Congress under Section 5 of the Fourteenth Amendment to abrogate state immunity. The Court held that remedies under Section 5 had to be narrowly tailored in order to validly abrogate immunity./37/ In reviewing the abrogation of sovereign immunity in two anti-discrimination statutes, the Court subjected the legislative record to exacting scrutiny. The Court rejected extensive evidence of discrimination by private employers and required evidence of a widespread pattern of discrimination by state employers. Finding that neither the Age Discrimination in Employment Act nor the employment provisions of the Americans with Disabilities Act had an adequate legislative record, the Court concluded that the damages remedies in those statutes could not be applied to the states./38

Nevertheless, the Court upheld the abrogation of sovereign immunity in several subsequent cases, deciding each on narrow grounds. In Nevada Department of Human Resources v. Hibbs, the Court held that Congress had authority under the Fourteenth Amendment to abrogate state immunity through the family care provisions of the Family Medical Leave Act, which is based on underlying concerns about sex discrimination./39/ Gender discrimination is subject to higher scrutiny under the equal protection clause than discrimination based on age or disability, to which rational basis review applies. Applying heightened scrutiny for gender discrimination, the Court relaxed the evidentiary requirements for abrogating sovereign immunity and accepted evidence of discrimination by private actors as a basis for upholding the statute's abrogation of sovereign immunity./40/ However, the Court recently held in Coleman v. Court of Appeals that Congress did not abrogate state sovereign immunity from suits for damages under the Family Medical Leave Act's self care provisions because they were not "congruent and proportional" to any identified constitutional violations./41/

In  Tennessee v. Lane, the Court introduced an “as applied” test and held that state governments may be sued for violating Title II of the Americans with Disabilities Act as it applies to claims involving the fundamental right of access to the courts./42/ The Court held that the legislative record included ample evidence to justify the Americans with Disabilities Act's remedies, including damages.

In 2006, the Court unanimously held in United States v. Georgia that Congress has the power under Section 5 of the Fourteenth Amendment to abrogate state immunity in the context of suits for damages against state prisons under Title II of the Americans with Disabilities Act, at least to the extent that such suits challenge conduct claimed to violate the Fourteenth Amendment./43/ The case was remanded for a determination whether any of the alleged conduct violated Title II but not the Constitution, and if so, whether Title II validly abrogated sovereign immunity for such conduct.

The Court has also permitted bankruptcy proceedings against states, finding them, at the core, to involve in rem jurisdiction./44/ In Central Virginia Community College v. Katz, the Court acknowledged that statements in Seminole Tribe reflected an assumption that the holding in that case would apply to the Bankruptcy Clause./45/ However, a five-member majority concluded that this assumption was erroneous and rejected the sovereign immunity defense advanced by the state agency./46/ The Court explained that the states, in ratifying the Bankruptcy Clause, acquiesced in a subordination of whatever sovereign immunity they might otherwise have asserted in proceedings necessary to effectuate the in rem jurisdiction of the bankruptcy courts .

Several trends have emerged in recent lower court cases addressing sovereign immunity./47/ Courts have dismissed employment discrimination suits seeking damages against states in federal court under the Americans with Disabilities Act and self-care provisions of the Federal Medical Leave Act, but sovereign immunity has not been a bar to employment discrimination suits against the states under these statutes seeking injunctive relief, including reinstatement./48/ In the context of disability discrimination in higher education, numerous court of appeals have held that Title II of the Americans with Disabilities Act validly abrogates state sovereign immunity./49/ Following Georgia, some prisoner suits under Title II alleging constitutional violations have been allowed to proceed against states./50/ However, some district courts have held that, in the absence of a constitutional violation, Title II does not validly abrogate sovereign immunity in the prison context./51/

8.1.D. Waiver of Immunity

There are three ways that states waive their immunity: (1) by state legislation explicitly waiving immunity from suit; (2) by accepting federal funds that have been provided on the condition that sovereign immunity is waived; and (3) by removing state court litigation to federal court.

8.1.D.1. State Legislation Waiving Immunity

Advocates in several states have sought state legislation waiving sovereign immunity in suits to enforce federal laws. Minnesota attempted to enact such a law in 2005, subjecting the state to suit under certain federal employment laws "in any court of competent jurisdiction."/52/ However, in a 1999 case, the Supreme Court suggested in dicta that the phrase "in any court of competent jurisdiction" would not be sufficient to waive state sovereign immunity./53/ The Eighth Circuit, relying on that dicta, found the waiver language in the Minnesota statute insufficiently unequivocal to waive immunity in federal courts for a claim under the Americans with Disabilities Act./54/ The Ninth Circuit reached the same conclusion, holding that that "in any court of competent jurisdiction" language did not waive state immunity to suit in federal court for a claim under a state civil rights law./55/

In evaluating state statutes that purport to waive sovereign immunity, courts often view such statutes skeptically. For example, in King v. State, the Nebraska Supreme Court pronounced that “[a] waiver of sovereign immunity will only be found where stated by the most express language or by such overwhelming implications from the text as will leave no room for any other reasonable construction.”/56/ Accordingly, advocates drafting state consent laws should explicitly specify consent to suit in federal court./57/

8.1.D.2. Federally Mandated Waiver of Immunity Under Congressional Spending Power

The Supreme Court held some time ago, in South Dakota v. Dole, that Congress may impose conditions on states in exchange for the provision of federal funds./58/ Citing Dole, the Court recently stated that “Congress has broad power to set the terms on which it disburses federal money to the States."/59/ Congress may require that the states waive their sovereign immunity as a condition of receiving federal funds./60/ However, there must be clear notice to the states of the consequences of accepting the money./61/

The Court has stated that Congress "craft[ed] an unambiguous waiver of the States' Eleventh Amendment immunity" in 42 U.S.C. § 2000d-7./62/ This statutory provision applies to suits under Title VI of the Civil Rights Act (discrimination based on race and ethnicity), the Age Discrimination in Federally Assisted Programs Act of 1975, Title IX of the Education Amendments of 1972 (gender discrimination in education), and Section 504 of the Rehabilitation Act of 1974 (discrimination based on disability). Although expressed in terms of abrogation, Section 2000d-7 applies to the states as a waiver of immunity arising from a state accepting federal funds./63/ If sovereign immunity is waived under statutes enacted as part of the spending power, a private plaintiff may sue the state or state agency as a named defendant and may recover damages to the extent that they are allowed by the underlying statute; the private plaintiff also may obtain injunctive and other relief.

Laws that waive sovereign immunity based on the acceptance of federal funds have a wide applicability. Because most state agencies receive some federal funds, it is generally not difficult to establish the state's acceptance of federal assistance./64/ The Rehabilitation Act, in particular, provides that if one part of a department or agency receives federal financial assistance, the entire entity is considered to receive federal assistance and must conform to the Act’s requirements./65/ Even state agencies that merely distribute federal assistance are covered by the Rehabilitation Act./66/   

The Second Circuit carved out a time-limited exception to the waiver under the Rehabilitation Act./67/ It reasoned that states could not have foreseen the reversal in the Supreme Court's approach to the abrogation of sovereign immunity and therefore could not have knowingly agreed to waive immunity by accepting federal funds prior to the Court's recent decisions. No other circuit has adopted this approach. To the contrary, every other circuit court (except the Federal Circuit which has never considered the question) has held that states waive their sovereign immunity under the Rehabilitation Act by accepting federal funds, regardless of the time period involved./68/ Even within the Second Circuit, it is well established that this reasoning ceased to be applicable after 2001. Thus, the Second Circuit's ruling should not have any lasting significance./69/

In Dole, the Supreme Court suggested that in some unspecified circumstances, financial inducement might be coercive, thereby exceeding congressional power./70/ In the recent decision on the constitutionality of the Affordable Care Act, National Federation of Business v. Sebelius ("NFIB"), seven justices held that Congress exceeded its power in conditioning all existing Medicaid funds on acceptance of a Medicaid expansion./71/ Chief Justice Roberts wrote the plurality opinion, joined by Justices Breyer and Kagan, which stated that the expansion was a "new health care program."/72/ Roberts explained that States "could hardly anticipate" that Medicaid would be transformed "so dramatically," and as a result, the threat to withhold all Medicaid funding was a "gun to the head."/73/ Justices Scalia, Kennedy, Thomas, and Alito jointly wrote a dissenting opinion, which likewise concluded that conditioning all Medicaid funds on acceptance of the expansion exceeded Congress's power under the Spending Clause as unduly coercive./74/ The Chief Justice then held that the proper remedy was to permit states to continue to access existing Medicaid funds, even if states chose not to implement the expansion./75/ Justices Ginsburg and Sotomayor concurred in this result./76/ The joint dissenters would have invalidated the entire statute./77/

Prior to NFIB, courts of appeals uniformly rejected the argument that the Rehabilitation Act's waiver of immunity is coercive. In Jim C. v. United States, for example, the potential loss of federal funds was $250 million, 12 percent of the State’s annual education budget./78/ The court described replacing these funds as “politically painful, but we cannot say that it compels Arkansas’s choice.”/79/ In another case, the court rejected the state's coercion argument based on the potential loss of federal funds of $557 million, comprising 60 percent of Nebraska's social services budget./80/ In response to challenges brought by states to Medicaid requirements, courts of appeals rejected the argument that the threat of the loss of federal Medicaid funds is coercive, even when such funds exceed a billion dollars per year./81/ The impact of NFIB on future challenges to Medicaid conditions is uncertain./82/

In addition to the Rehabilitation Act, other federal statutes contain abrogation provisions and each statute should be examined to determine whether it contains language that can be construed as consent to suit by the states as a condition of accepting federal money./83/ A state entity may even be found to have waived immunity based upon acceptance of federal funds from private individuals. For example, in Bennett-Nelson v. Louisiana Board of Regents, Louisiana Tech University was found to have waived sovereign immunity based on its acceptance of federal financial aid monies from students./84/

8.1.D.3. Waiver of Immunity by Litigation

In Lapides v. Board of Regents, the Supreme Court unanimously held that removal of a case by a state from state court to a federal court constitutes a waiver of Eleventh Amendment immunity./85/ The Court explained that waiver by litigation was based on the need to “avoid inconsistency, anomaly, and unfairness, and not upon a State’s actual preference or desire, which might, after all, favor selective use of ‘immunity’ to achieve litigation advantages.”/86/ The Court limited its holding, however, “to the context of state law claims, in respect to which the state has explicitly waived immunity from state-court proceedings.”/87/ Additionally, the Court overruled Ford Motor Company v. Department of the Treasury of Indiana/88/ where the Court refused to find waiver by litigation unless expressly authorized by state law./89/ Lapides holds that the conduct of the litigation by the state attorney general may constitute waiver even though the state constitution provides that immunity may be waived only by statute./90/ While the reach of Lapides is uncertain, several circuit courts have extended its holding to federal claims as well./91/Recently the First Circuit held that there is no waiver through litigation conduct where "a State does nothing more than zealously defend against" federal jurisdiction./92/

8.1.E. Prospective Injunctive Relief Under Ex Parte Young

In 1908, Ex parte Young established an exception to states' sovereign immunity under the Eleventh Amendment, holding that when a state official violates the federal constitution, the officer is “stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct.”/93/ Ex parte Young permits suits for prospective and injunctive relief against a state official, usually the official in charge of the agency responsible for the violation, to enforce federal rights. Ex parte Young suits should expressly designate the defendant official as being sued in her official capacity. Neither the state nor a state agency can be named as the defendant./94/

Cases seeking to apply Ex parte Young may be brought in several different ways. First, suits may be brought directly under a federal statute containing an explicit or implicit private cause of action./95/ Second, suits may be brought under 42 U.S.C. § 1983, which creates a federal cause of action for violation of “rights” secured by the federal laws and the Constitution./96/ Third, in some cases such as those involving claims of federal preemption, a suit is simply brought under the federal question jurisdiction of the federal courts./97/

8.1.E.1. Limitations and the Continuing Availability of a Remedy

In 1974, the Supreme Court held that retroactive monetary relief is not permitted under Ex parte Young./98/ Prospective relief is available, even if it requires the state to make large expenditures./99/ A decree requiring state officials to pay for the future costs of desegregating a de jure segregated school system fit within the prospective relief permitted by Ex parte Young./100/ The violation of federal law must be ongoing to warrant injunctive or declaratory relief. The Court explained that "[r]emedies designed to end a continuing violation of federal law are necessary to vindicate the federal interest in assuring the supremacy of that law."/101/

In the mid-1990's, however, the Supreme Court rejected claims for prospective relief under Ex Parte Young in two cases involving Indian tribes. In Seminole Tribe, the Court held that Ex Parte Young was inapplicable was inapplicable to the Indian Gaming Regulatory Act, because the statute contains a detailed, though quite limited, remedial scheme which "strongly indicates that Congress has no wish" to permit extensive injunctive relief under Ex Parte Young./102/ A year later, in Idaho v. Coeur d'Alene Tribe of Idaho, the Court rejected prospective relief under Ex Parte Young on the grounds that the state's special sovereign interests in control of its lands and waters barred all forms of relief under federal law./103

Subsequently, the Court reaffirmed the continuing availability of prospective relief under Ex Parte Young. In Board of Trustees of the University of Alabama v. Garrett, which barred recovery of damages against states under Title I of the American with Disabilities Act, the Court expressly approved use of Ex Parte Young to enforce Title I through injunctive relief against states engaging in employment discrimination:

Our holding here that Congress did not validly abrogate the State’s sovereign immunity from suit by private individuals for money damages under Title I does not mean that persons with disabilities have no federal recourse against discrimination. Title I of the ADA still prescribes standards applicable to the States. Those standards can be enforced by the United States in actions for money damages, as well as by private individuals in actions for injunctive relief under Ex parte Young./104/

A year later in Verizon Maryland Incorporated v. Public Service Commission of Maryland, the Supreme Court explained that “a court need only conduct a ‘straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.’”/105/ Since the prayer for relief asked that the commissioners be enjoined from enforcing an order in contravention of federal law, the test was met. The addition of a claim for declaratory relief did not impose on the state any monetary loss for past breach of its duty. The Court also rejected the argument that Ex parte Young was inapplicable because the commission’s decision was probably consistent with federal law: “[T]he inquiry into whether suit lies under Ex parte Young does not include an analysis of the merits of the claim.”/106/ The Court concluded that "the doctrine of Ex parte Young permits Verizon’s suit to go forward against the state commissioners in their official capacities.”/107/

While Verizon was a business case, the Supreme Court later reiterated the applicability of Ex parte Young in the context of a challenge to a consent decree in a Medicaid case. In 2004, the Court ruled that Ex parte Young suits that are resolved in a consent decree may be enforced by federal courts./108/ The consent decree “must spring from, and serve to resolve, a dispute within the court’s subject-matter jurisdiction; must come within the general scope of the case made by the pleadings; and must further the objectives of the law upon which the complaint was based.”/109/ The Court also rejected the state’s argument that before a federal court can issue an order requiring a state defendant to take steps to comply with a consent decree, it must first find an ongoing violation of federal law./110/

In Virginia Office for Protection and Advocacy v. Stewart ("VOPA"), the Court upheld the validity of an Ex parte Young claim in a suit against state officials brought by an independent state agency./111/ The Court held that a suit seeking an injunction to produce records properly sought prospective relief under Ex parte Young./112/

However, in a dissenting opinion by Chief Justice Roberts in Douglas v. Independent Living Center, four justices suggested that Ex parte Young actions should be limited to cases in which the state is threatening an enforcement action./113/ The dissent would have dismissed a Medicaid preemption claim. Justice Kennedy, who did not join the ILC dissent, has expressed the opposite interpretation of Ex parte Young. Justice Kennedy noted in his concurrence in VOPA that while Ex parte Young was a preemptive defense to an enforcement action, the Supreme Court has subsequently "expanded the Young exception far beyond its original office in order to vindicate the federal interest in assuring the supremacy of [federal] law."/114/

8.1.E.2. Rejection of the Assault on Ex Parte Young

Encouraged by the limitations placed on the availability of prospective injunctive relief in Seminole Tribe and Coeur d'Alene, some states mounted a wholesale attack on the ability of private parties to enforce federal laws under Ex parte Young. The assault against prospective relief in suits involving safety net and civil rights statutes has been defeated in lower courts.

Following Seminole Tribe, states argued that the remedial scheme in safety net and civil rights statutes precluded relief under Ex parte Young. In the context of Medicaid, several circuit courts have explicitly rejected this argument. The First Circuit stated: “[W]e preserve three decades of case law refusing to construe the Eleventh Amendment to prohibit suits for prospective injunctive relief involving [Medicaid].”/115/ The Eighth Circuit reached the same conclusion regarding the Child Welfare Act, holding that its remedial scheme was not similar to that at issue in Seminole Tribe./116/ In the context of Title II of the Americans with Disabilities Act, the Ninth Circuit rejected arguments that the Eleventh Amendment prohibits prospective relief, finding that the remedial scheme of the Americans with Disabilities Act was similar to that in Verizon./117/

Seizing upon Coeur d'Alene, states have also argued that special sovereign interests counsel against providing prospective relief to enforce safety net and civil rights statutes. This argument has been soundly rejected as well.  In a Medicaid case, the Tenth Circuit explained that the “state’s interest in administering a welfare program at least partially funded by the federal government is not such a core sovereign interest as to preclude the application of Ex parte Young.”/118/ The Supreme Court of New Mexico, holding Ex parte Young applicable in state court, reached the same result, concluding that the Age Discrimination in Employment Act did not implicate special sovereignty interests akin to those found in Coeur d’Alene./119/

Another challenge to Ex parte Young relief fashioned on the concurrences of Justices Scalia and Thomas in Pharmaceutical Research and Manufacturers of America v. Walsh asserted that Spending Clause statutes should not be treated as the supreme law of the land./120/ States argued that Spending Clause statutes are akin to contracts between the states and federal government and therefore unenforceable by individuals. Numerous courts of appeals have rejected this argument as contrary to binding Supreme Court precedent. The Fourth Circuit explained that “the Supreme Court has treated the Medicaid Act as ‘supreme’ law and has invalidated conflicting State law under the Supremacy Clause.”/121/ The Sixth Circuit stated, “The fact that these provisions have the binding force of law means that Medicaid and similar federal grant programs are not subject merely to doctrines of contract interpretation.” The court went on to hold, “We reaffirm well-established precedent holding that laws validly passed by Congress under its spending powers are supreme law of the land.”/122/ Indeed, the Spending Clause of the Constitution is just as enforceable as any other constitutional provision./123/

The Supreme Court recently rejected a state's claim that a Medicaid preemption claim would interfere with the state's traditional role as an authority in tort law. The Court stated: "A statute that singles out Medicaid beneficiaries . . . cannot avoid compliance with the federal [Medicaid] provision merely by relying upon a connection to an area of traditional state regulation."/124/

8.1.F. Interlocutory Appeals

One major factor to consider in naming defendants who may assert sovereign immunity is that in federal court a state or state official claiming immunity has a right to an interlocutory appeal if the district court rejects the immunity defense./125/ If an appeal is filed, proceedings against the appealing defendants come to a halt, and the district court has discretion to stay or limit proceedings against other defendants./126/ If, however, the district court certifies in writing that the immunity appeal is frivolous, proceedings in the district court against all defendants, including those claiming immunity, may continue while the interlocutory appeal is pending./127/ Several circuit courts that have addressed sovereign immunity in an interlocutory appeal have refused to broaden their review to assess whether violations of federal laws may be challenged under Section 1983./128/

8.1.G. Interlocutory Appeals

In Alden v. Maine, the Supreme Court held that, under the structure of the federal Constitution and historic principles of sovereign immunity, Congress cannot authorize suits against states in state courts for violations of federal law without the consent of the states, except when Congress acts pursuant to its Fourteenth Amendment powers./129/ Although the Court held that a state court need not enforce federal laws absent congressional action under the Fourteenth Amendment, the Court’s holding in Alden does not preclude a state from doing so. Accordingly, a careful examination of a state’s statutes may reveal authority to enforce federal claims against the state in state court.

Setting issues of sovereign immunity aside, if a state opens its courts to suits against the state on state law claims, it cannot assert a lack of jurisdiction to hear comparable claims against the state brought under federal law./130/ In Howlett v. Rose, the Supreme Court held that a state court cannot apply a state law sovereign immunity defense to defeat jurisdiction against a federal claim under Section 1983, because state law permitted similar claims under state law./131/ The Court’s decision in Alden that the state cannot be sued in state court, even on federal claims, without its consent, does not undermine the Court’s holding in Howlett, because Alden was based on state sovereign immunity, not the authority of state courts to refuse to hear federal claims./132/

Almost all states have laws against discrimination, and many allow such laws to be enforced in suits against the state or state agencies. The Seventh Circuit applied Howlett to an employment discrimination claim under the ADA, in which the state court held that the claim could not be pursued in federal court./133/ The court of appeals explained that because Illinois had not implemented a rule of sovereign immunity but rather had enacted state law permitting claims in state court to redress employment discrimination based on disability, applying Howlett, the state court could not exclude comparable claims under the Americans with Disabilities Act/134/ Nevertheless, the Supreme Court has indicated that a state may choose to waive sovereign immunity in state court but not in federal court for a given claim./135/

Finally, the Full Faith and Credit clause does not require a state to apply the immunity law of a second state when the second state is sued in the courts of the first./136/ The state may, however, do so as a matter of comity./137/ 

8.1.H. Administrative Proceedings

In the context of a dispute involving maritime law, the Supreme Court held that states enjoy sovereign immunity from federal adjudicative administrative hearings initiated and prosecuted by private parties, so that a federal agency may not adjudicate a dispute between a private party and a nonconsenting state./138/ This may affect federal whistle-blower statutes that provide for administrative hearings./139/ However, the bar of sovereign immunity in that situation can be overcome if the federal agency intervenes as a party in the proceeding./140/ The First Circuit has also left open the possibility that Ex parte Young could be applied to administrative proceedings where state officials were named as defendants in their official capacity and the private plaintiff seeks only injunctive relief./141/


1. Frew v. Hawkins, 540 U.S. 431, 433 (2004). See Dalton v. Little Rock Family Planning Services, 516 U.S. 474, 476 (1996).

2. See, e.g., Americans with Disabilities Act, 42 U.S.C. § 12101; Individuals with Disabilities Education Act, 20 U.S.C. § 1400; Civil Rights Act, 42 U.S.C. § 2000e; Age Discrimination in Employment Act, 29 U.S.C. §§ 621-34

3. See, e.g., 42 U.S.C. § 2000d-7.

4. See, e.g., Fair Labor Standards Act, 29 U.S.C. § 216(b); Family Medical Leave Act, 29 U.S.C. § 2617(a)(2).

5. U.S. Const. art. VI, cl.2. See Shaw v. Delta Air Lines, 463 U.S. 85, 96 n.14 (1983). See Chapter 5.2.c. of this MANUAL. 

6. U.S. Const. amend. XI.

7. Edelman v. Jordan, 415 U.S. 651 (1974).

8. See Rochelle Bobroff, Ex Parte Young as a Tool to Enforce Safety Net and Civil Rights Statutes, 40 Univ. of Toledo L. Rev. 819 (2009).

9. Alden v. Maine, 527 U.S. 706, 728-29 (1999).

10. See Rochelle Bobroff, Scorched Earth and Fertile Ground: The Landscape of Suits Against the States to Enforce the ADA, 41 Clearinghouse Review 298 (Sept.–Oct. 2007). See also Harper Jean Tobin, The Genetic Information Nondiscrimination Act of 2008: A Case Study of the Need for Better Congressional Responses to Federalism Jurisprudence, 35 J. of Legis. 113 (2009).

11. Rochelle Bobroff & Harper Jean Tobin, Strings Attached: The Power of the Federal Purse Waives State Sovereign Immunity for the Rehabilitation Act, 42 Clearinghouse Review 16 (May-June 2008).

12. “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const. amend. XI.

13. Hans v. Louisiana, 134 U.S. 1 (1890).

14. Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 100 (1984).

15. Id.

16. Savage v. Glendale Union High School, 343 F.3d 1036, 1040-41 (9th Cir. 2003); Belanger v. Madera Unified School District, 963 F.2d 248 (9th Cir. 1992), cert. denied, 507 U.S. 919 (1993). Although the criteria for determining what entities are entitled to claim Eleventh Amendment immunity may vary among circuits, the most important factor, at least in close cases, is whether, considering the source of the entity’s funding, the payment of the judgment would come from the state. Febres v. Camden Board of Education, 445 F.3d 227, 229 (3d Cir. 2006).

17. Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977); see also Monell v. New York v. City Department of Social Services , 436 U.S. 658 (1978).

18. Ex parte Young, 209 U.S. 123 (1908); see Virginia Office for Protection and Advocacy v. Stewart, 131 U.S. 1632 (2011) (Virginia Office for Protection and Advocacy's status as an independent state agency, which sued for records of another state entity, is irrelevant to the Young analysis). See Bobroff, Ex Parte Young, supra note 8.

19. Green v. Mansour, 474 U.S. 64 (1985).

20. Edelman v. Jordan, 415 U.S. 651 (1974).

21. Milliken v. Bradley, 433 U.S. 267 (1977). The Sixth Circuit has held that the Eleventh Amendment does not permit a prospective injunction that amounts to a direct monetary award. See Ernst v. Rising, 427 F.3d 351, 371 (6th Cir. 2005) (“[A] request that plaintiffs [district court judges] receive a higher pension benefit in the future not only compels greater state contributions in the future but also will compel other transfers of state funds to account for the lack of adequate contributions in the past.”).

22. The Fourth Circuit held in Lizzi v. Alexander, 255 F.3d 128, 137-38 (4th Cir. 2001), cert. denied sub nom. Lizzi v. Washington Metropolitan Area Transit Authority, 534 U.S. 1081, reh’g denied, 535 U.S. 952 (2002), that individual capacity suits against state officials arising out of official acts may be limited to suits under 42 U.S.C. § 1983, and not to liability arising under other federal statutes, even though the statute specifically makes the state official liable. Without explanation, the court held that such suits are in fact against the state. Presumably, the court expected the state to indemnify the official for any liability. The Second Circuit held, however, that an individual capacity suit seeking an amount of damages far exceeding the defendant’s ability to pay does not transform the suit into one against the state even when the state voluntarily chooses to reimburse the official. Huang v. Johnson, 274 F.3d 682 (2d Cir. 2001). For a discussion of qualified immunity, see Chapter 8.2 of this MANUAL.

23Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (emphasis added). See Robert Capistrano, Using Section 1983 to Raise Constitutional Claims in Garden-Variety Cases, 38 Clearinghouse Review 734, 741 (March-April 2005).

24. Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 106, 121 (1984).

25. 28 U.S.C. § 1367. Section 1367(a), however, does not extend supplemental jurisdiction to state claims against non-consenting state defendants. Raygor v. Regents of the University of Minnesota, 534 U.S. 533, 542 (2002).

26. See, e.g., Theobald v. Board of County Commissioners, 332 F.3d 414 (6th Cir. 2003).

27. Raygor, 534 U.S. at 546.

28. Jinks v. Richland County, 538 U.S. 456 (2003).

29. Federal Maritime Commission v. South Carolina State Ports Authority, 535 U.S. 743, 768 n.19 (2002); United States v. Mississippi, 380 U.S. 128, 140-41 (1965).

30. United States v. Mississippi Department of Public Safety, 321 F.3d 495, 499 (5th Cir. 2003).

31. Atascadero State Hospital v. Scanlon, 473 U.S. 234, 242 (1985); Quern v. Jordan, 440 U.S. 332, 342 (1979).

32. Kimel v. Florida Board of Regents, 528 U.S. 62, 73-74 (2000) (holding that congressional intent to abrogate state sovereign immunity is clearly expressed when a statute, by its plain terms, applies to state actors).

33. See Bobroff, Scorched Earth, supra note 10; Tobin, supra note 10.

34. Pennsylvania v. Union Gas Company, 491 U.S. 1 (1989).

35. Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996). 

36. Id. at 59.

37. City of Boerne v. Flowers, 521 U.S. 507, 520 (1997) (requiring section 5 legislation to exhibit a “congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end”). See Erwin Chemerinsky, Court Revisits Sovereign Immunity in Discrimination Cases, 42 Trial 70, 70 (March 2006).

38. Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001) (Americans with Disabilities Act); Kimel v. Florida Board of Regents, 528 U.S. 62 (2000) (Age Discrimination in Employment Act).

39. Nevada Department of Human Resources v. Hibbs, 538 U.S. 721 (2003).

40. Id. The Seventh Circuit held that Congress had authority under the Fourteenth Amendment to authorize Title VII claims alleging intentional discrimination in cases involving race and sex. Nanda v. Board of Trustees of the University of Illinois, 303 F.3d 817 (7th Cir. 2002), cert. denied, 539 U.S. 902 (2003); see also Downing v. Board of Trustees of the University of Alabama, 321 F.3d 1017 (11th Cir. 2003). The Second Circuit further held that Congress had Fourteenth Amendment authority to abrogate immunity in the Americans with Disabilities Act, but only to the extent that there was evidence in the case of discriminatory animus or ill will due to disability. Garcia v. State University of New York Health Sciences Center of Brooklyn, 280 F.3d 98 (2d Cir. 2001).

41. Coleman v. Court of Appeals, 132 S. Ct. 1327, 1335 (2012).

42. Tennessee v. Lane, 541 U.S. 509, 522-23 (2004) (stating that the infringement of basic constitutional guarantees is “subject to more searching judicial review”). Lower courts have applied Lane in other contexts as well. For example, the Fourth and Eleventh Circuits have extended Lane to cases involving access to education. See Constantine v. Rectors and Visitors of George Mason University, 411 F.3d 474, 490 (4th Cir. 2005); Association for Disabled Americans, Incorporated v. Florida International University, 405 F.3d 954, 959 (11th Cir. 2005).

43United States v. Georgia, 546 U.S. 151 (2006). See also Alaska v. Equal Employment Opportunity Commission, 564 F.3d 1062 (9th Cir. 2009) (en banc) (holding that gender and racial discrimination, harassment and retaliation claims by employees of the Alaska governor’s office were not barred by sovereign immunity because each claim alleged an actual constitutional violation).

44. U.S. Const. Art. I., § 8, cl. 4. See Tennessee Student Assistance Corporation v. Hood, 541 U.S. 440, 451 (2004) (avoiding sovereign immunity question and holding that a bankruptcy proceeding initiated by a debtor against a state agency to determine the dischargeability of a student loan is an in rem action, not an action against the State for purposes of the Eleventh Amendment). See generally California v. Deep Sea Research, Incorporated, 523 U.S. 491 (1998) (holding the Eleventh Amendment does not bar federal jurisdiction over in rem admiralty actions when the State is not in possession of the property).

45. Central Virginia Community College v. Katz, 546 U.S. 356 (2006).

46. Id. (holding that the States, in ratifying the Bankruptcy Clause, acquiesced in a subordination of whatever sovereign immunity they might otherwise have asserted in proceedings necessary to effectuate the in rem jurisdiction of the bankruptcy courts).

47See Bobroff, Scorched Earth, supra note 10.

48. See, e.g., Diaz v. Michigan Department of Corrections, 703 F.3d 956, 964 (8th Cir. 2013); Nelson v. University of Texas at Dallas, 535 F.3d 318 (5th Cir. 2008).  

49. See, e.g., Bowers v. National Collegiate Athletic Association, 475 F.3d 524 (3d Cir. 2007);   Constantine v. Rectors and Visitors of George Mason University, 411 F.3d 474, 487 (4th Cir. 2005).

50. Degrafinreid v. Ricks, 417 F.Supp.2d 403, 410-13 (S.D.N.Y. 2006).

51. Chase v. Baskerville, 508 F. Supp. 2d 492 (E.D. Va. 2007); Hale v. Mississippi, 2007 WL 3357562, 2007 U.S. Dist. LEXIS 83518 (S.D. Miss. Nov. 9, 2007).

52. Minn. Stat. § 1.05 (2005). 

53. College Savings Bank v. Florida Prepaid Postsecondary Education Board, 527 U.S. 666, 676 (1999).

54. Faibisch v. University of Minnesota, 304 F.3d 797, 800 (8th Cir. 2002).

55. Stanley v. Trustees of California State University, 433 F.3d 1129, 1134 (9th Cir. 2006).

56King v. State, 614 N.W.2d 341, 347 (Neb. 2000).

57. Compare N.C. Gen. Stat. § 143-300.35 (2005) (waiving sovereign immunity to plaintiffs’ suits in state and federal courts under the Americans with Disabilities Act, Age Discrimination in Employment Act, Fair Labor Standards Act, Family Medical Leave Act).

58. South Dakota v. Dole, 483 U.S. 203 (1987) (upholding requirement that states raise the minimum drinking age to 21 as a condition on the receipt of federal highway funds); Fullilove v. Klutznick, 448 U.S. 448.

59 Arlington Central School District Board of Education v. Murphy, 548 U.S. 291, 295-96 (2006).

60 Sossamon v. Texas, 131 S. Ct. 1651, 1657-58 (2011).

61.  Atascadero State Hospital v. Scanlon, 473 U.S. 234, 246-47 (1985) (holding the Rehabilitation Act did not validly abrogate state sovereign immunity because it failed to manifest “a clear intent to condition participation in the programs funded under the Act on a State's consent to waive its constitutional immunity”).

62. Lane v. Pena, 518 U.S. 187, 200 (1996).

63. Id. at 198 (1996).

64. See Bobroff & Tobin, supra note 11, at 24-25.

65. Rehabilitation Act,  29 U.S.C.A. § 794(b); see, e.g., Schroeder v. City of Chicago, 927 F.2d 957, 962 (7th Cir. 1991). See also the federal  implementing regulations for Section 2000d-7, 70 Fed. Reg. 24314-22 (May 9, 2005) (final regulations) (amending the regulations governing nondiscrimination on the basis of race, color, national origin, handicap, sex, and age to conform to the Civil Rights Restoration Act of 1987).

66.  Rehabilitation Act, 29 U.S.C. § 794(b)(1)(B).

67. Garcia v. State University of New York Health Sciences Center of Brooklyn, 280 F.3d 98, 114 (2d Cir. 2001).

68. See Constantine, 411 F.3d 474, 491–96 (4th Cir. 2005); Miller v. Texas Tech University Sciences Center, 421 F.3d 342, 349 (5th Cir. 2005) (en banc); Barbour v. Washington Metropolitan Area Transit Authority, 374 F.3d 1161 (D.C. Cir. 2004); Nieves-Márquez v. Puerto Rico, 353 F.3d 108, 127–29 (1st Cir. 2003); Brockman v. Wyoming Department of Family Services, 342 F.3d 1159, 1167–68 (10th Cir. 2003); Koslow v. Pennsylvania, 302 F.3d 161, 167–76 (3d Cir. 2002); Lovell v. Chandler, 303 F.3d 1039, 1050–52 (9th Cir. 2002); Nihiser v. Ohio Environmental Protection Agency, 269 F.3d 626 (6th Cir. 2001); Garrett v. University of Alabama at Birmingham Board of Trustees, 276 F.3d 1227, 1228 (11th Cir. 2001) (en banc); Stanley v. Litscher, 213 F.3d 340, 344 (7th Cir. 2000); Jim C. v. United States, 235 F.3d 1079, 1081–82 (8th Cir. 2000) (en banc).

69. See Bobroff & Tobin , supra note 11, at 22.

70.  South Dakota v. Dole, 483 U.S. 203, 211 (1987).

71. National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566 (2012).

72. Id. at 2606.

73. Id. at 2604, 2606.

74. Id. at 2666 (Justices Scalia, Kennedy, Thomas, and Alito, jointly dissenting).

75. Id. at 2607-08 (plurality opinion by Chief Justice Roberts).

76. Id. 2630, 2642 (Ginsburg, J., concurring).

77. Id. at 2667 (joint dissent). 

78. Jim C. v. United States, 235 F.3d 1079 (8th Cir. 2000) (en banc), cert denied, 533 U.S. 949 (2001). See also North Carolina v. Califano, 445 F. Supp. 532 (D.N.C. 1977), aff’d without opinion, 435 U.S. 962 (1978) (loss of funding, amounting to $50 million in 1977 dollars, for some forty-five public health programs, not coercive).

79. Jim C., 235 F.3d at 1082.

80.  Doe v. Nebraska, 345 F.3d 593, 599 (8th Cir. 2003). Accord Nieves-Márquez, 353 F.3d at 129; Koslow, 302 F.3d at 174; Constantine, 411 F.3d at 494.

81. West Virginia v. U.S. Department of Health and Human Services, 289 F.3d 281, 292 (4th Cir. 2002). See also California v. United States, 104 F.3d 1086 (9th Cir.), cert. denied, 522 U.S. 806 (1997) (rejecting contention that Medicaid requirement to provide emergency care to immigrants is coercive since state health system would collapse without federal Medicaid funds).

82. See Samuel Bagenstos, The Anti-Leveraging Principle and the Spending Clause after NFIB, 101 Georgetown Law Journal 861 (2013); Nicole Huberfeld, et. al, Plunging into Endless Difficulties: Medicaid and Coercion in the Healthcare Cases, 93 Boston University Law Review 1 (2013).

83. There is a strong presumption against waiver. The Supreme Court recently held that the Religious Land Use and Institutionalized Persons Act of 2000, which authorizes "appropriate relief against a government" is not the unequivocal expression of state consent needed to constitute a waiver of state sovereign immunity.  Sossamon v. Texas, 131 S. Ct. 1651 (2011).

84. Bennett-Nelson v. Louisiana Board of Regents, 431 F.3d 448, 452–53 (5th Cir. 2005).

85.  Lapides v. Board of Regents, 535 U.S. 613 (2002).

86. Id. at 620.

87. Id. at 617.

88. Ford Motor Co. v. Department of the Treasury of Indiana, 323 U.S. 459 (1945).

89. Lapides, 535 U.S. at 623.

90See also Miller v. Texas Tech University Health Sciences Center, 421 F.3d 342, 348 (5th Cir. 2005) (holding that state defendants “cannot accept the benefits of the [Rehabilitation Act] funds and reject the inextricably intertwined condition of waiver by claiming post hoc that the delegation of authority to accept the funds did not carry with it the authority to waive immunity.”).

91. See e.g., Lombardo v. Pennsylvania Department of Public Welfare, 540 F.3d 190, 196-200 (3rd Cir. 2008) (state waived immunity from suit based on federal claims in federal court by removing the case, but did not waive immunity from liability by doing so); Ku v. Tennessee, 322 F.3d 431 (6th Cir. 2003) (holding “that [the state’s] appearing without objection and defending on the merits in a [§ 1983 action] over which the district court otherwise has original jurisdiction is a form of voluntary invocation of the federal court's jurisdiction that is sufficient to waive a State's defense of Eleventh Amendment immunity.”); Estes v. Wyoming Department of Transportation, 302 F.3d 1200 (10th Cir. 2003) (holding that the Wyoming Department of Transportation's removal of the case to federal court effectively waived sovereign immunity in response to plaintiff’s Title I ADA claim).

92. Consejo de Salud de la Comunidad de la Playa de Ponce, Incorporated v. Gonzalez-Feliciano, 695 F.3d 83, 105 (1st Cir. 2012), certiorari denied, Atlantic Medical Center, Incorporated v. Feliciano, 134 S. Ct. 54 (2013).

93. Ex parte Young, 209 U.S. 123, 123 (1908). See Bobroff, Ex Parte Young, supra note 8.

94.   Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 106, 121 (1984). See Lawson v. Shelby County, 211 F.3d 331, 335 (6th Cir. 2000).

95. For a discussion of implied private rights of action, see Chapter 5.2 of this MANUAL.

96. For a discussion of 42 U.S.C. § 1983, see Chapter 5.1.A of this MANUAL.

97. For a discussion of preemption claims, see Chapter 5.2 of this MANUAL.

98. Edelman v. Jordan, 415 U.S. 651 (1974) (holding the Eleventh Amendment barred the retroactive payment of benefits wrongfully withheld).

99. Id. at 667-68.

100. Milliken v. Bradley, 433 U.S. 267, 289-90 (1977).

101. Green v. Mansour, 474 U.S. 64, 68, 73 (1985).

102. Seminole Tribe, 517 U.S. at 73-76.

103. Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 287 (1997).

104. Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356, 374 n.9 (2001) (emphasis added).

105. Verizon Maryland, Incorporated v. Public Service Commission, 535 U.S. 635, 645 (2002).

106. Id. at 646.

107. Id. at 648.

108Frew v. Hawkins, 540 U.S. 431, 441-42 (2004). The Court did not reach the question of whether a state waived its immunity by entering into a consent decree approved by the trial court.

109. Id. at 437.

110. Id. at 438-40.

111. Virginia Office for Protection and Advocacy v. Stewart, 131 S. Ct. 1632 (2011).

112. Id. at 1639

113. Douglas v. Independent Living Center of Southern California, Incorporated, 132 S. Ct. 1204, 1213 (2012) (Roberts, C.J., dissenting).

114. Virginia Office for Protection and Advocacy, 131 S. Ct. at 1642 (Kennedy, J., concurring).

115. Rosie D. v. Swift, 310 F.3d 230, 237 (1st Cir. 2002). Accord Westside Mothers v. Haveman, 289 F.3d 852, 862 (6th Cir. 2002); Antrican v. Odom, 290 F.3d 178, 190 (4th Cir. 2002). See also Reynolds v. Giuliani, 118 F. Supp. 2d 352, 382 (S.D.N.Y. 2000) (holding that remedial scheme for both Food Stamps and Medicaid does not preclude relief under Ex parte Young).

116. Missouri Child Care Association v. Cross, 294 F.3d 1034, 1038-39 (8th Cir. 2002). Accord Joseph A. v. Ingram, 275 F.3d 1253 (10th Cir. 2002).

117. Miranda B. v. Kitzhaber, 328 F.3d 1181, 1188 (9th Cir. 2003).

118. Lewis v. New Mexico Department of Health, 261 F.3d 970, 978 (10th Cir. 2001). Accord Antrican, 290 F.3d at 190 (Medicaid); Oklahoma Chapter of the American Academy of Pediatrics v. Fogarty, 205 F. Supp. 2d 1265 (N.D. Okla. 2002) (Medicaid); Office of the Child Advocate v. Lindgren, 296 F. Supp. 2d 178 (D.R.I. 2004) (child welfare system). For an interesting case holding that a state protection and advocacy organization may use Ex parte Young to seek records from a state government agency, see Indiana Protection and Advocacy Services v. Indiana Family and Social Services Administration, 603 F.3d 365, 370-74 (7th Cir. 2010) (en banc).

119. Gill v. Public Employees Retirement Board, 90 P.3d 491, 500, 501 (N.M. 2004).

120. See Pharmaceutical Research and Manufacturers v. Walsh, 538 U.S. 644, 675 (Scalia, J., concurring); id. at 683 (Thomas, J., concurring).

121. Antrican v. Odom, 290 F.3d 178, 188 (4th Cir. 2002).

122Westside Mothers v. Haveman, 289 F.3d 852, 857-62 (6th Cir. 2002). Accord Missouri Child Care Association v. Cross, 294 F.3d 1034, 1041 (8th Cir. 2002); Frazar v. Gilbert, 300 F.3d 530, 550 (5th Cir. 2002), rev’d on other grounds,  Frew v. Hawkins, 540 U.S. 431 (2004); Arrington v. Fuller, 237 F. Supp. 2d 1307 (M.D. Ala. 2002).

123. Samuel R. Bagenstos, Spending Clause Litigation in the Roberts Court, 58 Duke L.J. 345, 392-93 (2008).

124. Wos v. E.M.A., 133 S. Ct. 1391, 1400 (2013).

125. Puerto Rico Aqueduct and Sewer Authority v. Metcalf and Eddy, Incorporated, 506 U.S. 139, 141 (1993); Mitchell v. Forsyth, 472 U.S. 511, 525 (1985).

126. See, e.g., Root v. Liberty Emergency Physicians, Incorporated, 68 F. Supp. 2d 1086 (W.D. Mo. 1999) (staying all proceedings against all parties pending the immunity appeal of one party).

127. Behrens v. Pelletier, 516 U.S. 299, 310-11 (1996); Rivera-Torres v. Ortiz Velez, 341 F.3d 86, 94 (1st Cir. 2003).

128. See McCarthy ex rel. Travis v. Hawkins, 381 F.3d 407, 416-17 (5th Cir. 2004); Rosie D. v. Swift, 310 F.3d 230, 233-34 (1st Cir. 2002); Antrican v. Odom, 290 F.3d 178 (4th Cir. 2002).

129. Alden v. Maine, 527 U.S. 706, 755-56 (1999) (finding the state had not consented to suit for overtime pay because state law expressly excluded state employees from overtime pay). The Iowa Supreme Court reached an opposite conclusion in Anthony v. State, 632 N.W.2d 897 (Iowa 2001) finding that the Iowa Wage Payment Collection Law contains express consent to sue in Iowa courts for purposes of recovering any compensation owed to plaintiff and that overtime pay due under the Fair Labor Standards Act qualifies as such compensation; accord Williamson v. Department of Human Resources, 572 S.E.2d 678 (Ga. Ct. App. 2002).

130. Howlett v. Rose, 496 U.S. 356, 367-75 (1990).

 131. Howlett, 496 U.S. 356.

132. Alden, 527 U.S. at 758.

 133. Erickson v. Board of Governors, 207 F.3d 945, 952 (7th Cir. 2000).

134. Id.  

135. College Savings Bank v. Florida Prepaid Postsecondary Education Board, 527 U.S. 666, 676 (1999).

136. Franchise Tax Board v. Hyatt, 538 U.S. 488, 496-98 (2003). Because the parties did not raise any issue of sovereign immunity in the U.S. Supreme Court, the Court did not consider the issue.

137. Id. at 496-99.

138. Federal Maritime Commission v. South Carolina State Ports Authority, 535 U.S. 743, 768 n.19 (2002).

139. See Rhode Island Department of Environmental Management v. United States, 304 F.3d 31, 55 (1st Cir. 2002).

140. Id. at 53-54. See also Connecticut Department of Environmental Protection v. Occupational Safety and Health Administration, 356 F.3d 226, 234 (2d Cir. 2004).

141. Id. at 52.

Updated 2013 by Rochelle Bobroff

8.2 Suits Against Public Officials in Their Individual Capacity

Updated 2013 by Cassandra Capobianco

Besides authorizing official capacity suits against state and local officials for structural injunctive relief, 42 U.S.C. § 1983 authorizes claims against those officials in their individual capacity for compensatory and punitive damages. Although, as discussed above, the Eleventh Amendment limits official capacity claims against state officials to prospective injunctive relief, it does not affect damage claims against those officials in their individual capacity./1/ In this section, we discuss when absolute and qualified immunity limits individual capacity suits against public officials.

8.2.A. Absolute Immunity

By its terms, Section 1983 imposes liability without defense on state and local officials who, acting under color of law in their individual capacity, deprive plaintiffs of rights created by the Constitution and federal law. Nevertheless, the Supreme Court, drawing on common law, created absolute immunity from liability for some government officials and qualified immunity for others. Absolute and qualified immunity were developed to protect officials from lawsuits for actions relating to their official duties. 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./2/

Absolute immunity bars any action against officials in the conduct of their office even for actions taken maliciously or in bad faith. Absolute immunity focuses on the governmental function being performed and the nature of the responsibilities of the official, not on the specific action taken./3/ In deciding whether officials performing a particular function are entitled to absolute immunity, courts generally look for a historical or common-law basis for the immunity in question./4/ With one exception, absolute immunity is restricted to those persons performing judicial or legislative functions.

8.2.A.1. Judicial Immunity

The Supreme Court held in Stump v. Sparkman that judges have absolute immunity from Section 1983 damage actions for their “judicial” acts./5/ The Court permitted liability only for acts taken “in the clear absence of all jurisdiction.”/6/ Drawing from the common-law immunity of judges, the Court held that judicial immunity protects judges even when their judicial acts:

  • exceed their jurisdiction,/7/
  • are done maliciously or corruptly,/8/ or
  • are flawed by grave procedural error./9/

For example, in Stump, a circuit court judge was held to be absolutely immune from suit for authorizing sterilization of a “somewhat retarded” 15-year-old girl. The girl’s mother brought the petition for sterilization because she had stayed out overnight with young men, and the mother wanted “to prevent unfortunate circumstances.”/10/ Judge Stump approved the petition the day it was filed, without notice to the child or appointment of a special guardian. The girl underwent the procedure six days later under a misinformed belief that she was having her appendix removed. She did not find out about the sterilization, or the court order, until after she married and was unable to become pregnant. The Court reasoned that, though unconstitutional, Judge Stump’s order was a judicial act. Though issued in excess of his jurisdiction, it was not issued in the clear absence of jurisdiction./11/

Because of its focus on judicial acts, judicial immunity attaches to the judicial function, not the judicial office. If a court, individual judge, or prosecutor performs executive or legislative functions, immunity will be determined by the immunity applicable to the legislative or executive function performed./12/ Thus, absolute judicial immunity did not, for example, protect a judge from a suit for damages challenging the dismissal of a female probation officer./13/ Rejecting the argument that a judge must have absolute immunity when hiring and firing staff, the Court ruled that judicial immunity attaches only to the judicial acts of judges. Because a judge who hires and fires is indistinguishable from an administrative or executive branch official who makes personnel decisions, those decisions are administrative rather than a judicial acts and, therefore, not protected by absolute immunity. The Court remanded for a determination of whether the judge was protected by qualified immunity. Similarly, a judge who harassed and arguably constructively discharged his secretary because she became engaged to a courthouse employee did not act in a judicial capacity and, therefore, was not entitled to absolute immunity./14/

Four factors determine whether an act is judicial: (1) whether the precise act complained of is a normal judicial function; (2) whether the acts occurred in the courtroom or appropriate adjunct spaces such as the judge’s chambers; (3) whether the controversy centered around a case pending before the court, and (4) whether the acts arose directly out of a visit to the judge in his official capacity./15/ Employing those considerations, the Court held that a judge who ordered police officers “forcibly and with excessive force” to bring to his courtroom an attorney who was absent from a morning calendar performed a judicial act./16/ The Court reasoned that an order to court officers to bring a person within the courthouse before the judge is a function normally performed by a judge; because the order was directed at an attorney in a pending case, it was issued by a judge acting in his judicial capacity./17/ Similarly, a state judge who held in contempt and jailed a party and thereby immediately defied a binding rule of judicial procedure requiring a five-day stay of the sentence, was entitled to absolute judicial immunity. The act of holding a party in contempt in a proceeding in which a judge has subject-matter jurisdiction is a judicial act, and the failure to issue the required stay was a judicial error by a judge performing a judicial function rather than an act taken in the complete absence of jurisdiction./18/ But a judge who sexually assaulted women who had come to his chambers to see him in his official capacity in pending matters was not entitled to judicial immunity./19/ Regardless of where it is committed, a sexual assault is not a judicial act. Similarly, a night court judge who ordered his bailiff to detain, handcuff, and bring into a court a coffee vendor who sold putrid coffee was not entitled to judicial immunity./20/

All circuits interpret Stump and Bradley to require a clear absence of subject matter jurisdiction in order to lose immunity; a judge who has subject matter jurisdiction but acts without personal jurisdiction still enjoys absolute immunity for judicial acts./21/ So does a judge who issues a contempt order after having been disqualified by the filing of a disqualification affidavit./22/ The Stump standard is, therefore, difficult, but not impossible to meet. In one case, for example, a judge whose subject matter jurisdiction to issue arrest warrants was limited to crimes committed within his judicial district lost judicial immunity when he signed an arrest warrant based on a complaint of criminal conduct which he knew occurred outside his territorial jurisdiction./23/ Not only did he exceed his jurisdiction, but also he acted in the complete absence of subject matter jurisdiction./24/

The courts of appeal have unanimously held that judges who sit on courts of limited rather than general jurisdiction also enjoy absolute judicial immunity for judicial acts not taken in the clear absence of jurisdiction./25/ Administrative adjudication can give rise to absolute judicial immunity, sometimes termed quasi-judicial immunity, when the administrative adjudicator performs a judicial function in proceedings sufficiently judicial in character. In contrast, a judges administrative decisions are sometimes not regarded as judicial acts./26/ In determining whether an individual performing administrative adjudicatory functions is entitled to absolute or only to qualified immunity, the Supreme Court identified several relevant factors:

(a) The need to assure that the individual can perform his functions without harassment or intimidation; (b) the presence of safeguards that reduce the need for private damages actions as a means of controlling unconstitutional conduct; (c) insulation from political influence; (d) the importance of precedent; (e) the adversary nature of the process; and (f) the correctability of error on appeal./27/

Accordingly, school board members who sit as adjudicators in student disciplinary proceedings, prison employees who decide prison disciplinary proceedings, and court reporters, the Court has held, do not enjoy absolute judicial immunity and may invoke only qualified immunity./28/ Nor do school board members sitting as adjudicators in proceedings relating to individual faculty employment decisions,/29/ or court or juror officers dismissing grand jurors from service./30/ The courts of appeal, however, have since extended absolute immunity to parole board members,/31/ growth management board members adjudicating land-use controversies,/32/ mayors who conduct liquor license suspension hearings as liquor control commissioners,/33/ and to state personnel board members performing adjudicative functions,/34/ and to members of a state board of medical examiners exercising their authority to discipline medical professionals./35/

Because judicial immunity arises from the performance of an adjudicatory function, it extends to judicial or adjudicative acts within a quasi-judicial administrative proceeding whether or not the actor is a judge or an administrator./36/ One oft-cited standard for determining whether to apply judicial immunity to protect members of licensing boards is a useful test to distinguish an administrative adjudicatory act entitled to judicial immunity from an ordinary administrative act entitled only to qualified immunity:

First, does a Board member, like a judge, perform a traditional “adjudicatory” function, in that he decides facts, applies law, and otherwise resolves disputes on the merits (free from direct political influence)? Second, does a Board member, like a judge, decide cases sufficiently controversial that, in the absence of absolute immunity, he would be subject to numerous damages actions? Third, does a Board member, like a judge, adjudicate disputes against a backdrop of multiple safeguards designed to protect a physician’s constitutional rights?/37/

Although cases creating judicial immunity bar a Section 1983 claim for damages, they do not bar a Section 1983 action for prospective injunctive relief or an award of attorney fees under Section 1988./38/ Congress, however, amended Section 1983 to forbid injunctive relief absent a violation of a declaratory decree or the unavailability of declaratory relief and, thus, effectively, if not formally, extended absolute judicial immunity to claims for injunctive relief./39/

8.2.A.2. Prosecutorial Immunity

Prosecutors enjoy absolute immunity from damage liability for the initiation and prosecution of a criminal case./40/ The Supreme Court, relying heavily on considerations of policy, reasoned that initiating a prosecution and presenting a case are activities that are “intimately associated with the judicial phase of criminal process, and thus were functions to which the reasons for absolute immunity apply with full force.”/41/

Like judicial immunity, prosecutorial immunity is functional; it attaches only to acts intimately related to the initiation and prosecution of a criminal case. Struggling to define the boundaries of prosecutorial immunity, the Court held that a prosecutor who advised police officers on Fourth Amendment considerations in an ongoing criminal investigation performed an investigatory rather than a prosecutorial function and was, therefore, not entitled to absolute immunity. That same prosecutor, however, was entitled to absolute immunity for eliciting misleading testimony from those officers at a hearing on an application for a search warrant./42/ Although a prosecutor who suborns perjury at a criminal trial is absolutely immune, a prosecutor who manufactures false evidence does not enjoy absolute immunity. The former performs a prosecutorial function by presenting evidence, while the latter performs a police investigatory function by gathering evidence./43/ In a significant Ninth Circuit decision, the court distinguished between purposes for obtaining a material witness warrant: when a prosecutor seeks a material witness warrant in order to investigate or peremptorily detain a suspect, rather than to secure his testimony at anothers trial, the prosecutor is entitled at most to qualified, rather than absolute immunity./44/ Because conducting a press conference is not intimately associated with the judicial process, a prosecutor is not absolutely immune for statements made during a press conference./45/ The prosecutor who prepares and files an information and application for an arrest warrant enjoys absolute immunity for those actions ./46/ But if the prosecutor swears under oath to false statements of fact in the information, he becomes a complaining witness rather than a prosecutor and, like a complaining witness at common law, is not entitled to absolute immunity./47/

The Court’s decisions do not draw the line between performance of the investigatory function and the prosecutorial function with absolute clarity. Imbler v. Pachtman suggested that the inquiry begins with determining whether the prosecutor is performing a quasi-judicial function. A prosecutor obviously performs that function by trying a criminal case; hence, absolute immunity extended to the presentation of perjured testimony and the withholding of exculpatory evidence./48/ Imbler and Kalina v. Fletcher extended absolute immunity to the initiation of a prosecution, and Imbler noted that “[p]reparation, both for the initiation of the criminal process and for a trial, may require the obtaining ... of evidence.”/49/ Relying on that language, several courts of appeals have further extended absolute immunity to the prosecutor’s investigation and collection of evidence once probable cause is established./50/ Other courts have held that, before probable cause is established, an investigating prosecutor performs the role of police officer and is, therefore, not entitled to absolute immunity./51/ Post conviction work performed by prosecutors is generally subject to absolute immunity, particularly when the prosecutor continues her work as an advocate./52/

The Supreme Courts recent decision in Van de Kamp v. Goldstein explained the boundary between prosecutorial and administrative functions and, in a sense, blurred them. In Goldstein, the plaintiff alleged that the district attorney and his chief assistant failed to adequately train line prosecutors on their duties to provide impeachment related information about prosecution witnesses to defense attorneys./53/ Although the claim was framed as a challenge to administrative procedure, the Court viewed it as dealing with the disclosure of information prior to trial which is "directly connected with the prosecutor's basic trial advocacy duties." /54/ The Court was unwilling to distinguish between cases of prosecutorial error at trial (to which absolute immunity attaches) and claims that such error was caused by inadequate training or insufficient information management systems, worried that claims of the former type could be easily recast as claims of the latter and usher in waves of litigation./55/

Because public defenders do not act under color of law in representing individual clients, they may not be sued under Section 1983; hence, the issue of absolute immunity never arises./56/ When a public defender acts in an administrative capacity rather than as representative of a client, she acts under color of law but is not performing a quasi-judicial function and is, therefore, entitled only to qualified immunity./57/

8.2.A.3. Witness Immunity

With the exception of complaining witnesses who sign affidavits seeking the issuance of search or arrest warrants, witnesses in judicial proceedings are absolutely immune from suit arising from their testimony./58/ This absolute immunity extends to suits arising from the witness's grand jury testimony./59/ Though often phrased as witness immunity, the immunity can best be understood as an incident of judicial immunity. Just as judicial immunity extends to prosecutors presenting a criminal case, so does it extend to witnesses testifying in judicial proceedings. Complaining witnesses who swear affidavits in support of arrest and search warrants are said not to be participants in judicial proceedings and, therefore, enjoy only qualified immunity./60/ Similarly, witnesses in quasi judicial proceedings enjoy absolute immunity if the official conducting the proceeding enjoys absolute quasi judicial immunity./61/

8.2.A.4. Legislative Immunity

Members of Congress acting as legislators are absolutely immune from suits for either prospective relief or damages under the speech and debate clause of the U.S. Constitution./62/ Speech-and-debate-clause immunity ensures that the legislative function may be performed independently without fear of outside interference./63/ Because of its constitutional status, speech-and-debate clause immunity is broader in scope than common-law legislative immunity./64/

State,/65 / regional,/66/ and local/67/ officials performing legislative functions enjoy absolute immunity under Section 1983 for their legislative acts. The immunity attaches to any legislator acting in the sphere of any legitimate legislative activity, including the conduct or participation of investigations by standing or special committees./68/ Whether an act is legislative turns on the nature of the act, not the motive of the actor. Introducing and voting for a general budget which abolishes a specific position within local government, for example, is a legislative act sheltered by absolute immunity whatever the motives of the legislators may be./69/

Although it extended legislative immunity to local officials, Bogan v. Scott-Harris left open the question of whether introducing and voting for an ordinance was always a legislative act. The Supreme Court held that the budget ordinance at issue there “bore all the hallmarks of traditional legislation,” “reflected a discretionary, policymaking decision implicating the budgetary priorities of the city and the services it provides to its constituents,” and “may have prospective implications that reach well beyond the particular occupant of the office.”/70/

Refusing to exalt form over substance, however, the courts of appeal have denied legislative immunity to local legislators:

  • who voted to lay off selected employees because of their political affiliation,/71/
  • who voted not to renew an individual employment contract,/72/ and
  • who voted to terminate a particular employee./73/

However, courts granted legislative immunity to local legislators who voted to eliminate a certain governmental position/74/ and to legislators who voted to strip certain employee classifications of civil service protection./75/ Local legislators who voted to deny a conditional land-use permit analogously were not entitled to legislative immunity because of the ad hoc character of the process and the individual focus of the matter determined./76/ Legislators voting to award bids or purchase property similarly performed administrative rather than legislative functions and were not sheltered by absolute immunity./77/ Thus, when a school board acts to expel students, or a city council fires a police chief, the school board members and city council members do not enjoy legislative immunity./78/ Although these officials may have some legislative responsibility, their decisions to expel or fire determine the rights of specific individuals and are, therefore, not legislative acts; rather, they are executive or administrative acts beyond the scope of either legislative or judicial immunity.

The still evolving scope of legislative immunity may generate substantial litigation as local governments learn to be more sophisticated in using their powers to punish unpopular speech and unpopular groups. But, for the most part, legislative immunity should not pose a major practice problem. Litigation seeking to enjoin the enforcement of an unconstitutional statute should proceed against the officials charged with enforcement rather than the legislators who enacted it.

8.2.B. Qualified Immunity: Executive Officials

The U.S. president enjoys absolute immunity from suits for damages arising from his conduct as president./79/ But every other executive official, from cabinet officials and governors, legislators, and judges performing administrative functions, to the tens of thousands of public employees exercising state and local authority such as law enforcement officers and schoolteachers, enjoy only qualified immunity from suit./80/ A private individual temporarily retained by the government to carry out its work is also entitled to seek qualified immunity from suit under § 1983./81/

  Drawn from analogous common-law defenses available to public officials, qualified immunity protects public officials from personal liability unless their conduct violates then clearly established constitutional law. The defense rests upon two mutually dependent rationales: (1) the injustice, particularly in the absence of bad faith, of subjecting to liability an officer who is required, by the legal obligations of his position, to exercise discretion; (2) the danger that the threat of such liability would deter his willingness to execute his office with the decisiveness and the judgment required by the public good./82/

Qualified immunity is an affirmative defense. Early cases required a public employee to establish both that he did not violate clearly established law and that he acted without malicious intent./83/ Because proof of subjective good faith was incompatible with summary judgment, the Supreme Court modified the defense to shield public employees performing discretionary government functions “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”/84/ Apart from special needs and administrative search cases, the Court has cautioned against examination of subjective intent./85/ Because public employees/86/ almost always perform discretionary functions,/87/ qualified immunity really turns on two issues: (1) whether the action in question violated a constitutional right and (2) whether that action violated clearly established law./88/ Although the former question may involve disputed facts, the latter is a question of law subject to early resolution. This involves a historical inquiry into whether the law was clearly established when the defendant acted.

Saucier v. Katz held that lower courts must decide qualified immunity defenses using that two step analysis in that sequence./89/ In Pearson v. Callahan the Court in 2009 relaxed the analysis, holding that the Saucier procedure was not mandatory and that courts should have the flexibility to decide the question in either order./90/ The Court observed that it is sometimes easier to determine whether a constitutional right was clearly established than whether there is such a right./91/

8.2.B.1. Clearly Established Law

Whether qualified immunity applies critically depends on the level of generality at which a court assesses whether the law is clearly established. In a series of cases, the Supreme Court sketched out the approach to be taken. Anderson v. Creighton refined the meaning of “clearly established law” in a law enforcement officer’s qualified immunity defense against a claim that he conducted a warrantless search without probable cause or exigent circumstances./92/ The plaintiff argued that no officer could reasonably believe that he could conduct an unreasonable search as the Fourth Amendment itself clearly established the prohibition against unreasonable searches. The Court, rejecting the argument, held that it stated the legal inquiry too generally; because probable cause determinations are fact dependent, the relevant question was “the objective (albeit fact-specific) question whether a reasonable officer could have believed Anderson’s warrantless search to be lawful, in light of clearly established law and the information the searching officers possessed.”/93/ Although identifying a case in which “the very action in question has previously been held unlawful” is not necessary, it is essential that “in the light of pre-existing law, the unlawfulness must be apparent.”/94/ Thus, to be "clearly established a right must be sufficiently clear 'that every reasonable official would [have understood] that what he is doing violates that right.'"/95/

Because both the Fourth Amendment and qualified immunity incorporate an inquiry into reasonableness, the Anderson plaintiff argued that one could not both violate the Fourth Amendment by acting unreasonably and enjoy qualified immunity for having acted reasonably. The Court rejected that argument, holding that the two inquiries into reasonableness incorporated a different focus. The Fourth Amendment inquiry asks whether the officer reasonably, even if mistakenly, appraised the facts in assessing the appropriate level of force. Such facts would include the “severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.”/96/ In contrast, the qualified immunity inquiry asks whether, based on the then current state of the law, the officer reasonably might have misappraised the law’s application even when all facts are perceived correctly./97/ The Court subsequently applied the same rule to a Fourth Amendment excessive force claim in Brosseau v. Haugen. In that case, the Court held that qualified immunity protected an officer, absent fair warning from past cases that it would violate the Fourth Amendment “to shoot a disturbed felon, set on avoiding capture through vehicular flight, when persons in the immediate area are at risk from that flight.”/98/

In the wake of Anderson, the Eleventh Circuit has repeatedly held that a plaintiff could defeat qualified immunity only by identifying a previous case deciding the same issue on materially similar facts—a standard that virtually converted qualified immunity into absolute immunity. Thus, when prison guards punished a member of a chain gang for misconduct by handcuffing him to a hitching post shirtless with his arms above his shoulders for seven hours in the hot sun without food or a bathroom break, the Eleventh Circuit held that his Eighth Amendment claim was barred by qualified immunity because there was no previous case decided on materially similar facts./99/ The Supreme Court subsequently rejected this view and reversed the Eleventh Circuit./100/

The Court said that “[t]his rigid gloss on the qualified immunity standard, though supported by Circuit precedent, is not consistent with our cases.”/101/ Rather, the Court held that qualified immunity served to protect defendants from liability absent “fair notice” that their conduct was unlawful. The Court noted that it previously held that in prosecutions under 18 U.S.C. § 242, the criminal counterpart to Section 1983, due process required only that the accused be given fair warning that his conduct was unlawful./102/ Furthermore, the Court had on several occasions “upheld convictions under § 241 or § 242 despite notable factual distinctions between the precedents relied on and the cases then before the Court, so long as the prior decisions gave reasonable warning that the conduct then at issue violated constitutional rights.” /103/ Seeing no reason to require a greater warning in civil litigation, the Court held:

Although earlier cases involving “fundamentally similar” facts can provide especially strong support for a conclusion that the law is clearly established they are not necessary to such a finding. The same is true of cases with “materially similar” facts. Accordingly, pursuant to Lanier, the salient question that the Court of Appeals ought to have asked is whether the state of the law in 1995 gave respondents fair warning that their alleged treatment of Hope was unconstitutional./104/

Hope v. Pelzer answered that question and concluded that Supreme Court and circuit cases were sufficient to give the required fair warning that the use of a hitching post as punishment violated the Eighth Amendment. Hope reiterated that "general statements of the law are not inherently incapable of giving fair and clear warning" and noted that "a constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question, even thought the very action in question has [not] previously been held unlawful."/105 /

 Reasoning similarly, the Court subsequently held in Groh v. Ramirez that a search warrant that failed to describe either the person or things to be seized was facially invalid under the Fourth Amendment, foreclosing the officer who prepared and executed the warrant from asserting qualified immunity even though the warrant application described the things to be seized and the search was confined to the scope of the warrant application./106/ The Court, however, recently distinguished Groh in Messerschmidt v. Millender/107/. There, an officer investigating a domestic assault by an apparent gang member with a particular weapon, sought and received a search warrant from a magistrate permitting a search in a house of all weapons and gang paraphernalia. The warrant application was reviewed and approved by the officer's supervisor and an assistant district attorney. The Court observed that issuance of a warrant by a neutral magistrate is a clear indication of the officer's "objective good faith."/108/ Yet, the Court has also recognized an exception when "it is obvious that no reasonably competent officer would have concluded that a warrant should issue."/109/ Although the warrant in Messerschmidt was defective, given the particular facts presented, the Court found that the officer was not "plainly incompetent" for relying upon it, particularly given the approvals of superiors./110/

Although public officials routinely assert qualified immunity, Hope’s “fair warning” standard has made the defense somewhat easier to overcome; the courts of appeal no longer insist that plaintiffs conduct “a scavenger hunt for prior cases with precisely the same facts”/111/ to avoid defeat. Because broad statements of principle can clearly establish law, the courts of appeals frequently have denied qualified immunity even without a case decided on materially similar facts./112/

 8.2.B.2. The Reasonable Official and Scope of Discretion

The question of whether a reasonable official should have believed that the conduct in question violated clearly established law is largely a function of whether the law in question was clearly established. In that sense, the determination of whether the official’s belief that his conduct was reasonable is redundant; it is reasonable whenever the law is not clearly established./113/ The existence of reasonable grounds for the belief formed at the time of the action and in light of all the circumstances then present is what affords a basis for qualified immunity.

Early qualified immunity cases also suggested that the scope of qualified immunity varied with the scope of discretion and responsibility of the defendant’s position; the language first appeared in Scheuer v. Rhodes and was last mentioned in Nixon v. Fitzgerald. The courts of appeal have not relied on it since 1982./114/ With the rise of objective reasonableness as the standard for qualified immunity, the inquiry into the scope of discretion would seem relevant only to whether the official may raise the defense; an official who acts outside the scope of his discretionary authority and who violates the Constitution cannot assert qualified immunity even if his conduct did not violate then clearly established law./115/

Given the Court’s expansive interpretation of qualified immunity, you should allege the facts that defeat qualified immunity in detail when suing a public official for damages. Advocates should refrain from suing officials for damages in the absence of evidentiary support that will allow a claim to overcome qualified immunity.

8.2.B.3. Qualified Immunity, Intentional Discrimination, and Retaliation

Conventional claims of unlawful discrimination and retaliation rest upon conduct whose legality depends upon the motive for rather than the character of the conduct. The Constitution does not prohibit firing public employees, but it does prohibit firing them because of their race or in retaliation for protected speech. To avoid summary judgment on the merits of the underlying constitutional claim, the plaintiff must produce sufficient evidence, usually circumstantial, from which a reasonable jury can infer that the defendant intentionally discriminated or retaliated; without that evidence, the plaintiff cannot establish unconstitutional conduct./116/ With no evidence of unconstitutional conduct, the defendant will prevail without reaching the question of qualified immunity. But if the plaintiff has sufficient evidence of unconstitutional motive to avoid summary judgment, qualified immunity generally will not benefit a defendant because the constitutional prohibition against intentional discrimination or retaliation has long been clearly established law./117/

The question of how to adapt qualified immunity to state-of-mind claims reached the Supreme Court when a prisoner alleged that a prison official intentionally misdelivered legal papers in retaliation for the filing of a lawsuit./118/ The Court noted a potentially serious problem:

Because an official’s state of mind is “easy to allege and hard to disprove,” insubstantial claims that turn on improper intent may be less amenable to summary disposition ... [and] therefore implicate obvious concerns with the social costs of subjecting public officials to discovery and trial, as well as liability for damages. /119/

Despite its concern, the Court rejected the imposition of a heightened clear and convincing evidentiary burden in claims against public officials. To preserve a place for qualified immunity in state of mind litigation, the Court suggested that trial courts address the defense within the existing framework of the rules of civil procedure by requiring, when appropriate, that plaintiffs plead further in response to the defense and by imposing careful controls on discovery./120/

That framework was changed significantly in Ashcroft v. Iqbal./121/ While insisting that it was not imposing a heightened pleading standard, the Court's requirement that the complaint "plausibly" suggest intentional discrimination effectively does so. Plausibility pleading makes state of mind cases substantially more difficult to proceed past the motion to dismiss stage.

8.2.B.4. Qualified Immunity Practice and Procedure

Qualified immunity protects public officials from the burden of litigation as well as from judgments./122/ Therefore, the issue should be resolved early and, when possible, before discovery./123/ Because defendants are virtually certain to raise qualified immunity, either through a motion to dismiss or answer or motion for summary judgment, you must anticipate it in drafting the complaint with the plausibility pleading requirements of Iqbal in mind.

Should the court deny the motion to dismiss or for summary judgment, the defendant is entitled to an immediate interlocutory appeal/124/ and, should he take one, there is a stay of further proceedings in the district court pending adjudication of the appeal./125 / The defense of qualified immunity immediately tests whether the plaintiff alleged sufficient facts to establish that a reasonable officer would have believed the conduct in question to have been unlawful under clearly established law. If resolution of the defense turns on pure issues of law, an interlocutory appeal is permitted. It is not available if the trial court determines that application of the defense raises questions of disputed fact./126/ A defendant who unsuccessfully appeals from an order denying a motion to dismiss on qualified immunity may appeal a second time from an order denying summary judgment on qualified immunity, again staying proceedings below./127 / Thus, claims for damages against a defendant who can raise the defense of qualified immunity can take years to come to trial even when the defense is unsuccessful. Accordingly, you must discuss with your clients the advantages and disadvantages of suing public officials for damages so that they can make an informed decision on whether the claim is worth pursuing in the face of almost certain delay.

If the plaintiff alleges specific facts showing a violation of clearly established law, but the defendant accompanies a summary judgment motion with affidavits contesting plaintiff’s factual allegations and supporting qualified immunity, then discovery is proper./128/ A plaintiff who is served with such a motion for summary judgment should consider making a Rule 56(d) motion for discovery in addition to or instead of responding to the motion for summary judgment. Should the court again deny summary judgment following discovery, the defendant may take a second interlocutory appeal./129/ If the defendant does not seek summary judgment, or if the district court denies the motion(s), the plaintiff may finally undertake full discovery.


1. Hafer v. Melo, 502 U.S. 21, 29-30 (1991); Scheuer v. Rhodes, 416 U.S. 232, 237 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984).

2. Scheuer, 416 U.S. at 241-42.

3.   Bogan v. Scott-Harris, 523 U.S. 44, 54-55 (1998); Cleavinger v. Saxner, 474 U.S. 193, 201-02 (1985).

4. See Mitchell v. Forsyth, 472 U.S. 511, 521 (1985); but see Imbler v. Pachtman, 424 U.S. 409, 418 (1976), discussed infra.

5. Stump v. Sparkman, 435 U.S. 349 (1978).

6. Stump, 435 U.S. at 357. Mireles v. Waco, 502 U.S. 9, 12 (1991); see also Bradley v. Fisher, 80 U.S. 335, 341 (1 Wall 1871).

7. Pierson v. Ray, 386 U.S. 547, 554 (1967), overruled on other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982); Peia v. United States, 152 F. Supp. 2d 226, 235 (D. Conn. 2001).

8. Mireles, 502 U.S. at 11; see also Ballard v. Wall, 413 F.3d 510 (5th Cir. 2005).

9. Stump, 435 U.S. at 359.

10. Id.

11. Absolute judicial immunity is justified in part because “the judicial process is largely self-correcting: procedural rules, appeals, and the possibility of collateral challenges obviate the need for damages actions to prevent unjust results.” Mitchell v. Forsyth, 472 U.S. 511, 522 (1985). Absolute immunity was upheld in Stump, although these protections were unavailable to the sterilized plaintiff.

12. Supreme Court of Virginia v. Consumers Union of the United States, Incorporated, 446 U.S. 719, 731-34 (1980).

13. Forrester v. White, 484 U.S. 219 (1988).

14Cameron v. Seitz, 38 F.3d 264 (6th Cir. 1994). Cameron held that the judge was entitled to qualified immunity. But see Hope v. Pelzer, 536 U.S. 730 (2002), discussed infra.

15. See generally Mireles v. Waco, 502 U.S. 9, 12 (1991). See also Dawson v. Newman, 419 F.3d 656, 661 (7th Cir. 2005) (“three factors generally govern the determination of whether a particular act or omission is entitled to judicial immunity: ‘(1) whether the act or decision involves the exercise of discretion or judgment, or is rather a ministerial act which might as well have been committed to a private person as to a judge; (2) whether the act is normally performed by a judge; and (3) the expectations of the parties, i.e., whether the parties dealt with the judge as judge.’”) (quoting Lowe v. Letsinger, 772 F.2d 308, 312 (7th Cir. 1985)).

16. Mireles, 502 U.S. at 10.

17. Id. at 12.

18. Figueroa v. Blackburn, 208 F.3d 435, 444 (3d Cir. 2000); see also Tucker v. Outwater, 118 F.3d 930, 936 (2d Cir. 1997) (judge who acts in excess of jurisdiction still entitled to immunity).

19. Archie v. Lanier, 95 F.3d 438, 441 (6th Cir. 1996).

20. Zarcone v. Perry, 572 F.2d 52 (2d Cir. 1978), cert. denied, 439 U.S. 1072 (1979). The judge did not argue the claim of judicial immunity on appeal and contested only the award of punitive damages. Even if issuing an arrest order for selling bad coffee was a judicial act, the judge clearly lacked subject-matter jurisdiction for his actions.

21. Gross v. Rell, 585 F.3d 72, 84-86 (2d Cir. 2009) (applying Connecticut law in diversity case, which is the same as federal law, finds absolute immunity in case ordinarily in judge's jurisdiction, but in which he had no personal jurisdiction due to his failure to comply with conservatorship statute); Holloway v. Brush, 220 F.3d 767, 773 (6th Cir. 2000) (en banc); Crabtree v. Muchmore, 904 F.2d 1475, 1477 (10th Cir. 1990); Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986) (en banc), overruling Rankin v. Howard, 633 F.2d 844 (9th Cir. 1980), cert. denied, 451 U.S. 939 (1981).

22Stern v. Mascio, 262 F.3d 600, 606-07 (6th Cir. 2001).

23. Maestri v. Jutkofsky, 860 F.2d 50, 52-53 (2d Cir. 1988).

24. Id. at 53.

25. Figueroa v. Blackburn, 208 F.3d 435, 441 (3d Cir. 2000) (collecting cases); see Dixon v. Clem, 492 F.3d 665, 674-75 (6th Cir. 2007) (hearing officer absolutely immune). 

26. Forrester v. White, 484 U.S. 219, 228 (1988); but see Bliven v. Hunt, 579 F.3d 204, 210-13 (2d Cir. 2009) (judge's decision on approval of public defender's vouchers is a judicial function); Davis v. Tarrant County, 565 F.3d 214, 226 (5th Cir.) , cert. denied, 130 S. Ct. 624 (2009) (surveying cases and holding that judge's selection of applicants for court appointments is a judicial function).

27. Cleavenger v. Saxner, 474 U.S. 193, 202 (1985) (quoting Butz v. Economou, 438 U.S. 478, 511 (1978)).

28. Antoine v. Byers and Anderson Incorporated, 508 U.S. 429, 435-37 (1993) (court reporters); Cleavenger, 474 U.S. at 203-06 (prison disciplinary committee members); Wood v. Strickland, 420 U.S. 308, 320-22 (1975) (school board members).

29. Harris v. Victoria Independent School District, 168 F.3d 216, 224-25 (5th Cir. 1999); Stewart v. Baldwin County Board of Education, 908 F.2d 1499, 1507-8 (11th Cir. 1990). Harris notes six factors relevant to ascertaining whether quasi judicial immunity attaches to a particular administrative proceeding: “(1) the need to assure that the individual can perform his functions without harassment or intimidation; (2) the presence of safeguards that reduce the need for private damages actions as a means of controlling unconstitutional conduct; (3) insulation from political influence; (4) the importance of precedent; (5) the adversarial nature of the process; and (6) the correctability of error on appeal.” 168 F.3d at 224.

30. Atherton v. District of Columbia Office of the Mayor, 567 F.3d 672, 684-86 (D.C. Cir. 2009).

31. Holmes v. Crosby, 418 F.3d 1256 (11th Cir. 2005).

32. Buckles v. Kings County, 191 F.3d 1127, 1132-36 (9th Cir. 1999).

33. Killinger v. Johnson, 389 F.3d 765 (7th Cir. 2004).

34 Collyer v. Darling, 98 F.3d 211, 221 (6th Cir. 1996), cert. denied, 520 U.S. 1267 (1997).

35. Buckwalter v. Nevada Board of Medical Examiners, 678 F.3d 737 (9th Cir. 2012).

36. Butz v. Economou, 438 U.S. 478, 506-07 (1978); see generally Gross v. Rell, 585 F.3d 72, 87-93 (2d Cir. 2009) (surveying cases and certifying question of quasi-judicial immunity of conservator and attorney for prospective ward); Tobin for Governor v. Illinois State Board of Elections, 268 F.3d 517, 521-27 (7th Cir. 2001) (collecting cases); Mishler v. Clift, 191 F.3d 998, 1002-08 (9th Cir. 1999) (collecting cases); Watts v. Burkhart, 978 F.2d 269, 272-78 (6th Cir. 1992) (en banc) (extensive discussion of judicial immunity for members of licensing boards).

37. Watts, 978 F.2d at 278 (quoting Bettencourt v. Board of Registration in Medicine, 904 F.2d 772, 783 (1st Cir. 1990)).

38. Pulliam v. Allen, 466 U.S. 522 (1984).

39. Federal Courts Improvement Act of 1996, Pub. Law No. 104-317, § 309(c), 110 Stat. 3847, 3853 (1996).

40. Imbler v. Pachtman, 424 U.S. 409, 423-24 (1976).  Absolute immunity may also extend to government attorneys in non-criminal contexts.  See Mangiafico v. Blumenthal, 471 F.3d 391, 396-97 (2d Cir. 2006) (absolute immunity for state attorney general who declined to represent state employee in civil litigation against him).

41. Imbler, 424 U.S. at 430.

42. Burns v. Reed, 500 U.S. 478 (1991). Burns expressly declined to decide whether a prosecutor would be absolutely immune for maliciously seeking a warrant without probable cause; the Court limited its holding to conduct as an advocate during the probable-cause hearing.

43Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993).

44. al-Kidd v. Ashcroft, 580 F.3d 949, 963 (9th Cir. 2009).

45. Id. See also Atherton v. District of Columbia Office of the Mayor, 567 F.3d 672, 686-87 (D.C. Cir. 2009) (Assistant United States Attorney not immune for participating in removal of grand jurors).

46. See Waggy v. Spokane County, 594 F.3d 707 (9th Cir. 2010).

47. Kalina v. Fletcher, 522 U.S. 118 (1997). Justice Scalia concurred but argued that the Court’s prosecutorial immunity decisions could not be grounded in the common law of 1871 and that the result, though correct, rested upon a meaningless distinction between preparing an information and swearing to its truthfulness, Id. (Scalia, J. concurring).

48. Imbler v. Pachtman, 424 U.S. 409, 431 n.34 (1976); Long v. Satz, 181 F.3d 1275, 1279 (11th Cir. 1999) (per curiam) (extending absolute immunity to prosecutor who fails to turn over exculpatory evidence discovered after sentencing); Carter v. Burch, 34 F.3d 257, 263 (4th Cir. 1994) (prosecutor’s absolute immunity for withholding exculpatory evidence begins with arrest and continues through appeals); Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 675, 679 (9th Cir. 1984) (failure to preserve exculpatory evidence subject to absolute immunity).

49. Imbler, 424 U.S. at 431 n.33; Kalina v. Fletcher, 522 U.S. 118 (1997).

50. Broam v. Bogan, 320 F.3d 1023, 1030 (9th Cir. 2003); Herb Hallman Chevrolet Incorporated v. Nash-Holmes, 169 F.3d 636, 643 (9th Cir. 1999).

51. Mitchell v. Forsyth, 472 U.S. 511, 524 (1985) (attorney general not entitled to absolute immunity for ordering wiretaps as part of national security investigation since he was not acting in prosecutorial capacity); Powers v. Coe, 728 F.2d 97, 103 (2d Cir. 1984) (prosecutor not entitled to absolute immunity “when a prosecutor engages in or authorizes and directs illegal wiretaps” and “the wiretapping is ... investigative in nature...”).

52. Warney v. Monroe County, 587 F.3d 113 (2d Cir. 2009) (absolute immunity extends to failure by prosecutor to disclose post conviction DNA test results promptly); Hart v. Hodges, 587 F.3d 1288, 1296 (11th Cir. 2009).

53. Van de Kamp v. Goldstein, 129 S. Ct. 855 (2009).

54. Id. at 863

55. Id.

56. Polk County v. Dodson, 454 U.S. 312, 324-25 (1981).

57Miranda v. Clark County, 319 F.3d 465, 469-70 (9th Cir. 2003) (en banc) (holding that public defender acted in administrative capacity and therefore was subject to suit for policy of withholding investigatory and legal resources from defendants who failed polygraph test and for policy of assigning inadequately trained, inexperienced attorneys to capital cases).

58. Briscoe v. La Hue, 460 U.S. 325 (1983); Rehberg v. Paulk, 598 F.3d 1268 (11th Cir. 2010) (absolute immunity for grand jury witness, even if he knew testimony was false); Moldowan v. City of Warren, 578 F.3d 351, 390 (6th Cir. 2009); Rolon v. Henneman, 517 F.3d 140 (2d Cir. 2008) (absolute immunity extends to witnesses in arbitration hearings).

59. Rehberg v. Paulk, 132 S. Ct. 1497 (2012).

60. Kalina v. Fletcher, 522 U.S. 118, 129-31 (1997) (prosecutor who signs affidavit seeking arrest warrant is entitled only to qualified immunity); Malley v. Briggs, 475 U.S. 335, 341-45 (1986) (police officer who makes false statement or material omission to secure warrant enjoys only qualified immunity).

61. Holmes v. Crosby, 418 F.3d 1256 (11th Cir. 2005) (extending absolute immunity to parole officer testifying before parole board whose members enjoy quasi judicial immunity).

62. Eastland v. U.S. Serviceman’s Fund, 421 U.S. 491, 503 (1975).

63. Id. at 502.

64. Speech and Debate Clause immunity extends to criminal prosecutions. Its scope includes all activity related to the deliberations of Congress. Gravel v. United States, 408 U.S. 606 (1972). In Gravel Sen. Mike Gravel held a meeting of the Subcommittee on Buildings and Grounds of the Senate Public Works Committee, read extensive portions of the Pentagon Papers regarding the United States’ involvement in the Vietnam War, and placed all forty-seven volumes in the public record. Senator Gravel also arranged for their private publication. The Supreme Court held that the senator was absolutely immune from any suit regarding the conduct of the hearing but was not immune for his actions in arranging a private publication.

65. Tenney v. Brandhove, 341 U.S. 367, 377 (1951).

66 . Lake Country Estates v. Tahoe Planning Agency, 440 U.S. 391, 403-06 (1979).

67. Bogan v. Scott-Harris, 523 U.S. 44, 49 (1998).

68. Tenney, 341 U.S. at 376-77.

69. Bogan, 423 U.S. at 55-56.

70. Id. See also Bryant v. Jones, 575 F.3d 1281, 1303-07 (11th Cir. 2009) (absolute immunity attaches to proposal in budget to eliminate position), cert. denied, 130 S. Ct. 1536 (2010); Almonte v. City of Long Beach, 478 F.3d 100, 107 (2d Cir. 2007) (absolute immunity covers secrets meetings prior to budget vote); Gallas v. Supreme Court, 211 F.3d 760, 770-71 (3d Cir. 2000) (legislative immunity attaches to decision to abolish position of court administrator as part of broad reorganization plan).

71. Acevedo-Garcia v. Vera-Monroig, 204 F.3d 1, 7-9 (1st Cir. 2000).

72. Canary v. Osborn, 211 F.3d 324, 329-30 (6th Cir.), cert. denied, 531 U.S. 927 (2000).

73. Baird v. Board of Education for Warren Community Unit School District No. 205, 389 F.3d 685, 696 (7th Cir. 2004), cert. denied, 126 S. Ct. 332 (2005); Bechard v. Rappold, 287 F.3d 827 (9th Cir. 2002); In re Montgomery County, 215 F.3d 367, 376-77 (3d Cir. 2000), cert. denied, 531 U.S. 1126 (2001).

74. Leapheart v. Williamson, 705 F.3d 310 (8th Cir. 2013); Olma v. Collins, 499 F. App'x 98 (2d Cir. 2013).

75. Figueroa-Serrano v. Ramos-Alverio, 221 F.3d 1, 4-5 (1st Cir. 2000).

76. Kaahumanu v. County of Maui, 315 F.3d 1215, 1219-24 (9th Cir. 2003); but see Sable v. Myers, 563 F.3d 1120, 1126 (10th Cir. 2009) (City Council decision to condemn property shielded by legislative immunity).

77. Kamplain v. Curry County Board of Commissioners, 159 F.3d 1248, 1252-53 (10th Cir. 1998).

78. Wood v. Strickland, 420 U.S. 308, 319-321 (1975) (school board members cannot invoke absolute legislative or quasi judicial immunity for expulsion hearing); Stewart v. Baldwin County Bd. of Educ., 908 F.2d 1499 (11th Cir. 1990) (school board members cannot invoke absolute immunity in personnel discharge matters); see Owen v. City of Independence, 445 U.S. 662 (1980) (city liable for city council’s unconstitutional discharge of police chief).

79. Nixon v. Fitzgerald, 457 U.S. 731, 749 (1982). Immunity is limited to claims arising from conduct within the “outer perimeter” of presidential responsibility and does not extend to conduct before the President takes office. Clinton v. Jones, 520 U.S. 681, 693-96 (1997).

80. Mitchell v. Forsyth, 472 U.S. 511, 520-24 (1985) (rejecting absolute immunity for cabinet officers and individuals performing national security investigations); Harlow v. Fitzgerald, 457 U.S. 800, 808-13 (1982) (high-ranking presidential aides); Wood, 420 U.S. at 322 (school officials); Scheuer v. Rhodes, 416 U.S. 232, 247-49 (1974) (governors, state adjunct generals, national guard officers, enlisted members, and presidents of state universities).

81. Filarsky v. Delia, 132 S. Ct. 1657 (2012).

82. Scheuer, 416 U.S. at 240. The Supreme Court recently observed that "[q]ualified immunity balances two important intereststhe need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably."  Pearson v. Callahan, 129 S. Ct. 808, 815 (2009).

83. E.g., Wood, 420 U.S. at 322.

84Hope v. Pelzer, 536 U.S. 730, 739 (2002) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). See also Scott v. Harris, 550 U.S. 372, 382-83 (2007). 

85. Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080-81 (2011) (holding that former Attorney General Ashcroft was entitled to qualified immunity in a claim that post-9/11 use of the material witness statute was a pretext for the government to arrest and hold individuals suspected of terrorist links, but without evidence to justify arrests on substantive charges).

86. The term "public employees" here includes individuals working temporarily for a government. In Filarsky v. Delia, 132 S. Ct. 1657 (2012) the Court held that a private attorney retained by a city to investigate the activities of a city employee could assert qualified immunity.

87. For a rare example of a public official held not to be performing a discretionary function, see Holloman v. Harland, 370 F.3d 1252, 1282-84 (11th Cir. 2004) (public school teacher not performing discretionary function when leading class in moment of silent prayer, and therefore not entitled to raise qualified immunity as defense to suit). The court in Holloman observed: “Employment by a local, county, state, or federal government is not a carte blanche invitation to push the envelope and tackle matters far beyond one's job description or achieve one's official goals through unauthorized means. Pursuing a job-related goal through means that fall outside the range of discretion that comes with an employee's job is not protected by qualified immunity.” Id. at 1267.

88. Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012); Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080 (2011).

89 . Saucier v. Katz, 533 U.S. 194 (2001).

90.  Pearson v. Callahan, 129 S. Ct. 808, 818 (2009).

91.  Id.

92. Anderson v. Creighton, 483 U.S. 635 (1987).

93.  Id. at 641.

94. Id. at 640.

95. Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012) (quoting Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083) (whether there is a right to be free from retaliatory arrest, otherwise supported by probable cause, after making statements to a public figure was unclear).

96. Saucier v. Katz, 533 U.S. 194, 205-06 (2001) (internal citations omitted), overruled on other grounds by Pearson v. Callahan, 129 S. Ct. 808 (2009). The Court examined reasonableness in a different context in Scott v. Harris, 550 U.S. 372 (2007).  In Scott, the Court held that it was reasonable for an officer to ram a fleeing driver's car to potentially prevent injuries to innocent bystanders.   

97. Id.

98. Brosseau v. Haugen, 543 U.S. 194, 600 (2004) (per curiam). Brosseau expressed no view on whether the shooting violated the Fourth Amendment, 543 U.S. at 598; the Court summarily reversed to correct what it saw as a “clear misapprehension” of the standard for qualified immunity. Since there were no past cases holding that the Fourth Amendment prohibited the use of deadly force to apprehend a felon who concededly drove his escape vehicle with “a wanton or willful disregard for the lives . . . of others,” Brousseau added little to existing qualified immunity doctrine.

99. Hope v. Pelzer, 240 F.3d 975 (11th Cir. 2001).

100. Hope v. Pelzer, 536 U.S. 730 (2002).

101. Id. at 739.

102. Id. at 739-40 (citing United States v. Lanier, 520 U.S. 259 (1997)).

103. Id. at 740 (quoting Lanier, 520 U.S. at 269).

104. Id. at 741.

105. Id. Safford Unified School District No. 1 v. Redding, 129 S. Ct. 2633, 2643 (2009). Conversely, an officer need not point to a case in his circuit justifying the action taken.  Acceptance by other courts of the reasonableness of a search and seizure is sufficient to show that unlawfulness of a search and seizure was not clearly established.  Pearson v. Callahan, 129 S. Ct. 808, 822-23 (2009). 

106. Groh v. Ramirez, 540 U.S. 551 (2004).

107. Messerschmidt v. Millender, 132 S. Ct. 1235 (2012).

108. Id. at 1245 (quoting United States v. Leon, 468 U.S. 897, 922-23 (1984).

109. Id. at 1245 (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986).

110. Id. at 1250.

111. Pierce v. Gilchrist, 359 F.3d 1279, 1298 (10th Cir. 2004).

112. Binay v. Bettendorf, 601 F.3d 640 (6th Cir. 2010) (fair warning in excessive force case); Estate of Escobedo v. Bender, 600 F.3d 770 (7th Cir. 2010) (same); Baribeau v. City of Minneapolis, 596 F.3d 465 (8th Cir. 2010) (fair warning that arrests here unconstitutional); Bennett v. Hendrix, 423 F.3d 1247 (11th Cir. 2005) (public officials have fair warning of prohibition against retaliating against citizens for exercising first amendment rights); Akins v. Fulton County, 420 F.3d 1293 (11th Cir. 2005) (overruling earlier cases and holding that Pickering and Connick provide fair warning against retaliation for public employee’s protected speech); Cook v. Gwinnett County School District, 414 F.3d 1313 (11th Cir. 2005) (same); Cummings v. City of Akron, 418 F.3d 676 (6th Cir. 2005) (fair warning that warrantless entry and seizure unconstitutional absent exigent circumstances); Kennedy v. City of Ridgefield, 411 F.3d 1134 (9th Cir. 2005) (officers have fair warning they may be “liable under a state-created danger doctrine where they falsely induce reliance by promising additional protection or warnings.”); Tarver v. City of Edna, 410 F.3d 745 (5th Cir. 2005) (applying fair warning standard to deny qualified immunity in claim of excessive force); Sample v. Bailey, 409 F.3d 689 (6th Cir. 2005) (same); Mercado v. City of Orlando, 407 F.3d 1152 (11th Cir. 2005) (same); Board v. Farnham, 394 F.3d 469 (7th Cir. 2005) (applying fair warning standard to deny qualified immunity for denying inmate toothpaste and asthma inhaler); Magluta v. Samples, 375 F.3d 1269 (11th Cir. 2004) (applying fair warning standard to deny qualified immunity for subjecting prisoner to 500 day punitive solitary confinement without due process hearing); Holloman v. Harland, 370 F.3d 1252 (11th Cir. 2004) (applying fair warning standard to deny qualified immunity to teacher and principal who punished student for silently raising clenched fist and remaining silent during pledge of allegiance); McGreal v. Ostrov, 368 F.3d 657 (7th Cir. 2004) (applying fair warning standard to deny qualified immunity in Pickering retaliation claim); Kinney v. Weaver, 367 F.3d 337 (5th Cir. 2004) (same); Pierce v. Gilchrist, 359 F.3d 1279 (10th Cir. 2004) ( applying standard to deny qualified immunity to forensic specialist who withheld exculpatory evidence resulting in a wrongful conviction); Moran v. Clark, 359 F.3d 1058 (8th Cir. 2004) (applying fair warning standard to deny qualified immunity to police officers who manufactured evidence and used questionable procedures to scapegoat innocent officer for serious misconduct); Drummond v. City of Anaheim, 343 F.3d 1052 (9th Cir. 2003) (applying fair warning standard to deny qualified immunity in excessive force case); Roska v. Peterson, 328 F.3d 1230 (10th Cir. 2003) (applying fair warning standard to deny qualified immunity to social worker who in absence of extraordinary circumstances removed child from home without notice and prior hearing); Vaughn v. Cox, 343 F.3d 1323 (11th Cir. 2003) (sua sponte vacating earlier decision after Supreme Court denied certiorari and applying fair warning standard to deny police officer qualified immunity in excessive force/fleeing suspect case).

113. See, e.g., Malley v. Briggs, 475 U.S. 335, 344-45 (1986) (applying standard of objective reasonableness in fourth amendment claim against officers who procured search warrant, holding that “[o]nly where the warrant application is so lacking in indicia of probable cause as to render official belief in its existence unreasonable ... will the shield of immunity be lost.”).

114. Scheuer v. Rhodes, 416 U.S. 232, 242 n.7 (1974); Nixon v. Fitzgerald, 457 U.S. 731 (1982).

115. See, e.g., Holloman v. Harland, 370 F.3d 1252, 1282-84 (11th Cir. 2004).

116. See generally Reeves v. Sanderson Plumbing Products, Incorporated , 530 U.S. 133, 141 (2000); McDonnell Douglas Corporation v. Green, 411 U.S. 792, 804-5 (1973).

117. E.g. Peterson v. Scott County, 406 F.3d 515 (8th Cir. 2005) (sex discrimination); Akins v. Fulton County, 420 F.3d 1293 (11th Cir. 2005) (retaliation); Kinney v. Weaver, 367 F.3d 337 (5th Cir. 2004) (retaliation); but see Walker v. Gomez, 370 F.3d 969 (9th Cir. 2004) (qualified immunity protects correctional officials who considered race in imposing temporary security restrictions in response to racially motivated inmate violence).

118. Crawford-El v. Britton, 523 U.S. 574 (1998).

119. Id. at 584-85. Harlow v. Fitzgerald, 457 U.S. 800 (1982), previously held the defense to be available to claims of unlawful retaliation, but its specific holding was only that immunity sheltered an employee unless he violated clearly established law irrespective of his state of mind: “Thus, although evidence of improper motive is irrelevant on the issue of qualified immunity, it may be an essential component of the plaintiff’s affirmative case.” Crawford-El, 523 U.S. at 589.

120. Crawford-El, 523 U.S. at 597-600.

121. Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009).

122. Harlow, 457 U.S. at 817.

123. Anderson v. Creighton, 483 U.S. 635, 646 n.6 (1987). 

124. Ortiz v. Jordan, 131 S. Ct. 884, 891 (2011); Mitchell v. Forsyth, 472 U.S. 511, 525-26 (1985).  If the government employee is found to have violated the Constitution, but nevertheless be immune because of unclarity of the law, the employee has standing to appeal.  Camreta v. Greene, 131 S. Ct. 2020 (2011).

125. Johnson v. Jones, 515 U.S. 304, 313 (1995); Nixon v. Fitzgerald, 457 U.S. 731 , 742-3 (1982).

126. Ortiz, 131 S. Ct. at 892-93; Johnson, 515 U.S. 313.

127. Behrens v. Pelletier, 516 U.S. 299, 306-08 (1996).

128. FRCP 56-(d); Crawford-El v. Britton, 523 U.S. 574,  598-99 (1988).

129. Pelletier, 516 U.S. at 306-07. The defendant may not appeal if the sole reason for denying summary judgment is his failure to show the absence of a genuine issue of material fact respecting whether certain conduct occurred rather than whether the conduct violated clearly established law.  Johnson v. Jones, 515 U.S. 304, 316 (1995).


Updated 2013 by Cassandra Capobianco

8.3 Damage Claims Against Cities and Counties Under Section 1983

Updated 2013 by Kirsten Clanton

Most Section 1983 claims for damages involve suits against government employees who have violated the Constitution, statutes, or their employer’s own stated policies. The boundaries of such claims are discussed in this subchapter.

8.3.A. The Requirement of a Custom, Policy or Practice

It is well established that allegedly unlawful actions by governmental employees cannot be imputed to cities and other local government units, and do not give rise to liability by local governing units under Section 1983, because a city, county, or similar governmental agency is only liable for the deprivation of federal rights caused by its own policy, custom or practice./1/ Monell v. New York City Department of Social Services establishes the principle that the government is liable only for actions for which it is directly responsible, establishing the parameters of the exception to the common law rule that government should be immune from suit./2/ Furthermore, a plaintiff must show that action taken pursuant to official municipal policy caused the injury./3/

8.3.A.1. No Governmental “Respondeat Superior” Liability

A local government may not be sued under Section 1983 for harm inflicted by its employees when the sole nexus between the employer and the deprivation of rights is the existence of the employee-employer relationship. Monell clearly rejected respondeat superior liability for local governments, reasoning that “the touchstone of the § 1983 action against a government body is an allegation that official policy is responsible for a deprivation.”/4/ It further held that a governmental “strict liability” rule would run counter to the statutory intent that the agency can be held accountable only when official policy is to blame. Hence, the government entity – as opposed to the individual government employee or agent – is liable only for acts of its employee or agent that stem from a “custom, policy or practice” of the entity, and not from an individual aberration or isolated act, even one committed “under color of law.”/5/

This is generally not an issue when the deprivation of federal rights results from enforcement of "a policy statement, ordinance, regulation, or decision officially adopted and promulgated" by the officers of a local governing body./6/ The problems arise when the source of the policy, or the authority under which it is enforced, is uncertain./7/

8.3.A.2. Establishing a “Custom, Policy or Practice” in the Absence of Written Guidelines or Repeated Acts: The Role of the “Final Policy-Making Authority”

In addition to deprivations of rights caused by official policy, local governments may be sued for deprivations caused by "governmental 'custom' even though such a custom has not received formal approval through the body's official decisionmaking channels."/8/ To establish a custom or practice in the absence of a formal policy will usually require proof of repeated incidents suggesting a pattern or practice. The existence of a widespread practice can be so permanent and well-settled to constitute a custom or usage with the force of law./9/

Even a single decision made by the "final policy making authority," such as the governing body of a local government or one having the power to decide finally on its behalf, can constitute a "policy" under Section 1983./10/ However, "the scope of § 1983 liability does not permit such liability to be imposed merely on evidence of the wrongful action of a single city employee not authorized to make city policy.”/11/ Therefore, it is critical to identify who is a final policy maker for purposes of imposing liability under Section 1983 on a local government pursuant to an official policy.

State law determines whether a particular person or entity is the "final policy-making authority."/12/ In City of St. Louis v. Prapotnik, 485 U.S. 112 (1988) (plurality opinion), the Court explained that the authority to make municipal policy is the authority to make final policy:

When an official's discretionary decisions are constrained by policies not of that official's making, those policies, rather than the subordinate's departures from them, are the act of the municipality. Similarly, when a subordinate's decision is subject to review by the municipality's authorized policymakers, they have retained the authority to measure the official's conduct for conformance with their policies. If the authorized policymakers approve a subordinate's decision and the basis for it, their ratification would be chargeable to the municipality because their decision is final./13/

In Jett v. Dallas Independent School District, the plaintiff, a former athletic director and football coach, sued a school district and principal alleging violations of his constitutional rights./14/The Court instructed that "the identification of those officials whose decisions represent the official policy of the local government unit is itself a legal question to be resolved by the trial judge before the case is submitted to the jury./15/ The jury then must determine whether those officials who have the power to make official policy caused the deprivation of rights by their decisions "or by acquiescence in a longstanding practice or custom which constitutes the 'standard operating procedure' of the local government entity./16/

Related to the "final policy-making authority" inquiry is whether, in carrying out the custom, policy or practice, the defendant official "acted" on behalf of a local agency or the state. On the one hand, a local official's enforcement of a state law or policy does not, without more, convert it into local policy./17/ On the other, some ostensibly local agencies such as county sheriffs or school boards can be considered under state law to be state agencies when carrying out particular functions. This determination is dependent on state law./18/ And the state, of course, cannot be sued under Section 1983./19/ 

8.3.B. Liability for Inadequate Training

Often, however, the problem is with not the “policy” of the agency, but that agency employees are ignorant of the policy. In some narrow circumstances, the agency’s failure to train its employees to comply with agency policy can lead to liability if, as a result of employee ignorance or inadequate training, a plaintiff is deprived of federal rights.

In City of Canton v. Harris, the Supreme Court explained that inadequate training could give rise to liability if:

in light of the duties assigned to specific officers or employees the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policy-makers can reasonably be said to have been deliberately indifferent to the need./20/

The Court held that under these circumstances, "the failure to provide proper training may fairly be said to represent a policy for which the city is responsible."/21/

However, in the Supreme Court's most recent case on this issue, Connick v. Thompson, the Court held that a single Brady violation by prosecutors who failed to turn over to the defense exculpatory blood evidence was insufficient to show inadequate training and thereby impose Section 1983 liability./22/  The Court found that Thompson's "single incident" claim did not fall within a hypothesized scenario of single incident liability for failing to train police in City v. Canton.  Instead, the Court concluded that,

 It does not follow that, because Brady has gray areas and some Brady decisions are difficult, prosecutors will so obviously make wrong decisions that failing to train them amounts to "a decision by the city itself to  violate the  Constitution." To prove deliberate indifference, Thompson needed to show that Connick was on notice that, absent additional specified training, it was "highly predictable" that the prosecutors in his office would be confounded by those gray areas and make incorrect Brady decisions as a result. In fact, Thompson had to show that it was so predictable that failing to train the prosecutors amounted to conscious disregard for defendants' Brady rights. He did not do so./23/

This decision may make it more difficult to bring failure-to-train claims based on a single incident. Successful cases have been brought where a municipality failed to train in areas where there was an obvious need for training/24/ or where the pattern of constitutional violations was so pervasive that failure to train constituted deliberate indifference by the municipality./25/

8.3.C. Good Faith Defenses and the Availability of Punitive Damages

A municipality may not escape liability by claiming its officers or employees acted in good faith./26/ Owen v. City of Independence involved the firing of a chief police without notice of the reasons for this action, or a hearing, allegedly in violation of due process. The claim was initially dismissed on the ground that, because the applicability of due process in these circumstances was still “unclear” at the time, and because any government employee defendants sued in their personal capacity would have been entitled to claim qualified immunity, the same should apply to the city. The Supreme Court reversed and ruled that granting a qualified or good faith immunity to a municipality was not compatible with Section 1983's fundamental purpose of remedying violations of federal rights./27/

The Court reasoned that the danger of intimidation or inhibition – lurking when an individual employee has to act under threat of possible suit – is not present when a municipality or local government agency is sued because these entities can act only through their employees or agents. Hence, granting immunities to government, or to government agents sued in their official capacity for actions resulting from the agency’s custom, policy, or practice, would only undercut the government’s incentive to conform their operational procedures to federal law, or to control its employees./28/ For this reason, in an official capacity suit, damages can be awarded against a government agency for actions that caused the deprivation of plaintiff’s rights even if these actions were “objectively reasonable.” In the Court’s words:

By creating an express federal remedy, Congress sought to “enforce provisions of the Fourteenth Amendment against those who carry a badge of authority of a State and represent it in some capacity, whether they act in accordance with their authority or misuse it.” How “uniquely amiss” it would be, therefore, if the government itself ... were permitted to disavow liability for the injury it has begotten. ... Moreover, § 1983 was intended not only to provide compensation to the victims of past abuses, but to serve as a deterrent against future constitutional deprivations, as well. ... The knowledge that a municipality will be liable for all of its injurious conduct, whether committed in good faith or not, should create an incentive for officials who may harbor doubts about the lawfulness of their intended actions to err on the side of protecting citizens’ constitutional rights. Furthermore, the threat that damages might be levied against the city may encourage those in a policymaking position to institute internal rules and programs designed to minimize the likelihood of unintentional infringements on constitutional rights./29/

On the other hand, governmental defendants are immune from a claim of punitive damages for the bad faith of their employees./30/ Punitive damages are available in a Section 1983 action against an individual defendant "when the defendant's conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others."/31/ However, because the government -- already lacking immunity from awards of actual damages – should not be punished for the actions of rogue employees, punitive damages cannot be awarded against a government agency or municipality under Section 1983. In City of Newport v. Fact Concerts, Inc., the Court stated:

Punitive damages by definition are not intended to compensate the injured party, but rather to punish the tortfeasor whose wrongful action was intentional or malicious, and to deter him and others from similar extreme conduct ... Regarding retribution, . . . an award of punitive damages against a municipality “punishes” only the taxpayers, who took no part in the commission of the tort . . . ./32/

8.3.D. Municipal Liability for Employees Sued in Official Capacities

Generally, a governmental agency can only act through its employees. Unless they are acting as renegades in violation of agency policy, these employees are merely implementing the entity’s custom, policy, and practice. If the result of these actions is a deprivation of federal rights, both the employee and the agency can be sued. As discussed earlier in this chapter, while an employee may be able to invoke qualified immunity so long as the contours of the federal right were not “clearly established,”/33/ the governmental employer has no such defense./34/

A government employee can be sued in his or her personal or official capacity, or both, the distinction being the person or entity that the plaintiff is ultimately holding responsible./35/ The Supreme Court has stated: “Personal-capacity suits seek to impose personal liability upon a government official for actions he takes under color of state law. ... Official-capacity suits, in contrast, ‘generally represent only another way of pleading an action against an entity of which an officer is an agent.’”/36/ The Court explained “[T]he phrase ‘acting in their official capacities’ is best understood as a reference to the capacity in which the state officer is sued, not the capacity in which the officer inflicts the alleged injury.”/37/ However, the fact that the official was on the job when the official deprived the plaintiff of federal rights does not shield the government agent from personal liability and convert the action into an "official capacity" suit./38/

In “official capacity” suits, the government agency must comply with the injunction or pay the damage award. In personal capacity suits, the employee is personally liable./39/


1. Monell v. New York City Department of Social Services , 436 U.S. 658, 690-92 (1978).

2. Owen v. City of Independence, 445 U.S. 622 (1980) (municipality liable for damages flowing from constitutional violations that it caused through the execution of its policy or custom).

3. Connick v. Thompson, 131 S. Ct. 1350, 1359 (2011).

4. Monnell, 436 U.S. at 691-92. See also Los Angeles County v. Humphries, 131 S. Ct. 447, 452 (2010) (custom or policy requirement applies to suits for prospective relief as well as claims for damages).

5. Id.

6. Id. at 690.

7. See Burgess v. Fisher, 735 F.3d 462, 478 (6th Cir. 2013) ("A plaintiff can make a showing of an illegal policy or custom by demonstrating one of the following: (1) the existence of an illegal official policy or legislative enactment; (2) that an official with final decision making authority ratified illegal actions; (3) the existence of a policy of inadequate training or supervision; or (4) the existence of a custom or tolerance or acquiescence of federal rights violations.").

8. Monell, 436 U.S. at 691.

9. Id. See, e.g., Spell v. McDaniel, 824 F.2d 1380, 1387 (4th Cir. 1987) (Custom or usage has force of law as "widespread practice" when "duration and frequency of the practices warrants a finding of either actual or constructive knowledge by the governing body [or policymaker with responsibility for oversight and supervision] that the practices have become customary among its employees.")

10. See Monell, 436 U.S. at 694-95. See also Pembaur v. City of Cincinnati, 475 U.S. 469, 480 (1986). "Policy making" is defined as "a deliberate choice to follow a course of action . . . from among various alternatives." Id. at 483.

11. City of Oklahoma City v. Tuttle, 471 U.S. 808, 833 (1985) (Brennan, J., concurring).

12. Jett v. Dallas Independent School District, 491 U.S. 701, 737 (1989).

13. Moreover, inaction on the part of the final policymaker (such as a failure to overrule a decision made by a subordinate) has been found to be an insufficient delegation of decision-making authority. Gillette v. Delmore, 979 F.2d 1342, 1348 (9th Cir. 1992). A final policymaker must make an affirmative or deliberate choice from among various alternatives and must approve a subordinate's decision and the basis for it before ratification of a subordinate's decision will be deemed to have occurred. Id.

14. Jett, 491 U.S. 701.

15. Id. at 737.

16. Id.

17. Compare Surplus Store and Exchange v. City of Delphi, 928 F.2d 788 (7th Cir. 1991) (no Monell liability possible where the alleged policy was to require police officer to enforce state law) with Cooper v. Dillon, 403 F.3d 1208 (11th Cir. 2005) (Police chief had final policymaking authority for City, and "it was his deliberate decision to enforce the statute that ultimately deprived Cooper of constitutional rights and therefore triggered municipal liability.").

18. Compare McMillian v. Monroe County, 520 US. 781 (1997) (affirmed decision of 11th Circuit that county sheriff in Alabama as matter of state law is not final policymaker for county in areas of law enforcement) with Abusaid v. Hillsborough County Board of County Commissioners, 405 F.3d 1298, 1304 (11th Cir. 2005) (in law enforcement capacity of enforcing county ordinance, Florida sheriff acts for county and is not arm of state as matter of state law).

19. Quern v. Jordan, 440 U.S. 332. 337 (1979) (Since Congress did not intend Section 1983 to apply to states, Eleventh Amendment bars suit for damages).  State officials sued in their official capacities for damages are similarly immune. Hafer v. Melo, 502 U.S. 21, 26 (1991).

20. City of Canton v. Harris, 489 U.S. 378, 390 (1989). In her concurring opinion, Justice O'Connor wrote that a plaintiff must prove the need for training in one of two ways. "First, a municipality could fail to train its employees concerning a clear constitutional duty implicated in recurrent situations that a particular employee is certain to face. . . . Second, . . . municipal liability for failure to train may be proper where it can be shown that policy-makers were aware of, and acquiesced in, a pattern of constitutional violations involving the exercise of police discretion. In such cases, the need for training may not be obvious from the outset, but a pattern of constitutional violations could put the municipality on notice that its officers confront the particular constitutional requirements." Id. at 396-97. In Board of Commissioners v. Brown, 520 U.S. 397 (1997), Justice O'Connor's majority opinion reiterated that liability could not be based on a single incident without effectively undermining the Morrell rule barring governmental respondeat superior liability.

21. City of Canton, 489 U.S. at 390. The Court gave as an example "the need to train officers in the constitutional limitations on the use of deadly force" because the need is "'so obvious,' that failure to do so could properly be characterized as 'deliberate indifference' to constitutional rights." Id. at 390 n.10. The Court explained that police who often violate constitutional rights make the need for training obvious to city officials who must be "deliberately indifferent" to the need. Id.

22. Connick v. Thompson, 131 S.Ct. 1350 (2011).

23. Id. at 1365 (internal citations omitted).

24. See, e.g., Russo v. City of Cincinnati, 953 F.2d 1036 (6th Cir. 1992) (genuine issue of material fact existed as to whether inadequate training in subduing mentally disturbed person rose to level of deliberate indifference).

25. See, e.g., Chew v. Gates, 27 F.3d 1432, 1445 (9th. Cir. 1994) (Jury could find municipal liability based on inadequate training in canine unit "[w]here the city equips its police officers with potentially dangerous animals, and evidence is adduced that those animals inflict injury in a significant percentage of the cases in which they are used[;] a failure to adopt a departmental policy governing their use, or to implement rules or regulations regarding the constitutional limits of that use, evidences a 'deliberate indifference' to constitutional rights.").

26. Owen v. City of Independence, 445 U.S. 622 (1980).

27. Id. at 657.

28. Id. at 655-56.

29 Id. at 651-52 (quoting Monroe v. Pape, 365 U.S. 167, 172 (1961) (other citations omitted)).

30. City of Newport v. Fact Concerts, Incorporated, 453 U.S. 247, 271 (1981) (punitive damages not available in Section 1983 suit against municipality challenging violations of constitutional rights caused by city's revocation of permits for music festival).

31. Smith v. Wade, 461 U.S. 30 (1983).

32. City of Newport, 453 U.S. at 266-67.

33. See Pearson v. Callahan, 555 U.S. 223, 231 (2009) ("The doctrine of qualified immunity protects government officials 'from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'") (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Because "qualified immunity" is immunity from suit, rather than immunity from liability, questions about whether immunity attaches must be resolved at the earliest possible stage of the litigation. Id. at 213-32.

34. Owen, 445 U.S. at 657.

35. Even if the entity is being sued as a result of a custom, policy, or practice, tactical reasons or pleading rules may require that the individual employee be named as the defendant, rather than the agency itself. For example, a sheriff's office may not be a legal entity with the capacity to be sued under a particular state's laws. Dean v. Barber, 951 F.2d 1210, 1215 (11th Cir. 1992) ("Under Alabama law, a county sheriff's department lacks the capacity to be sued."). In such cases, the sheriff would have to be sued in the sheriff's official capacity, assuming the sheriff is not an arm of the state. See id. at 1215 n.5 (suit against sheriff in official capacity barred because sheriff is employee of state of Alabama). But see Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985) (no longer need to bring official capacity suits against local government officials because local government units can be sued directly).

36. Graham, 473 U.S. at 165-66 (quoting Monell , 436 U.S. 658, 690 n.55). To establish personal liability, "it is enough to show that the official, acting under color of state law, caused the deprivation of a federal right." Id. at 166. By contrast, an official capacity suit requires proof that a policy or custom of the governmental entity was the moving force behind the violation of federal law. Id.

37. Hafer, 502 U.S. 21.

38. Id. at 27-28.

39. Graham, 473 U.S. at 166. A government entity may indemnify the government employee for personal liability under Section 1983, but the conditions under which a government entity assumes the risk of doing so can vary.

Updated 2013 by Kirsten Clanton