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Immunity

NOTE
This page is not definitive on the subject of immunity.
In certain circumstances, the issue of whether immunity applies
can be heavily fact-laden.
For this reason, courts decide whether immunity applies
on a case-to-case basis.
           
                                                                           
 




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Immunity protects whoever has it from prosecution in a civil or criminal case.  There are many types of immunity: sovereign immunity, absolute immunity, qualified immunity, quasi-immunity (quasi-judicial immunity), discretionary function immunity.

Judges have absolute immunity: you cannot sue one.  A constitutional attorney has written that judges are vulnerable.  "Such cases," he says, "will usually be brought by pro se litigants.  Neither the politics nor economics of law practice permits lawyers to pursue such cases nor makes them affordable except to a small elite of citizens."  

Mandatory reporters -- doctors, psychologists, social workers, rape counselors, teachers -- have absolute immunity given to them by statute, or statutory immunity.  Essentially the legislature concluded, Hey, if we require them to report a case child abuse or rape of child only even if its only a hunch, we cannot allow the accused person to sue the reporter if the hunch wasn't a good one.

NOTE
Not all statutory immunity is absolute.

District attorneys and assistant district attorneys have qualified immunity, which means sometimes you can sue and sometimes you cannot sue them.  As a general rule, the act of prosecuting a rape of child case is not one of those acts for which you can sue a DA: the act is within the scope of the DA's employment.  Search on "qualified immunity" in the legal databases and familiarize yourself with the cases.

Court-appointed workers, such as family service officers, would have quasi-judicial immunity.  "Quasi judicial" officers have been given absolute judicial immunity "because they are involved in an integral part of the judicial process and thus must be able to act freely without the threat of a law suit."  LaLonde v. Eissner, 405 Mass. 207, 210 (1989).  There appears to be no case in which quasi-judicial immunity had been extended to a private party not working at the behest or direction of a court.  However, courts has stretched the meaning of "behest" and "direction."

Department of Social Services employees and police officers in Massachusetts decide "`whether, when, how, and whom to investigate' and whether and when to initiate court proceedings."  Sena v. Commonwealth, 417 Mass. 250, 255-259 (1994) (setting out standards for applying the discretionary function immunity exemption for police officers) and Suarez v. Belli, 1997 WL 39918, 189179 (Mass.Super.Ct. 1997).  "The discretionary function immunity applies as a matter of law to the allegations of negligence by Department employees."  Id.  [Put "qualified immunity" in the Search Tool at the bottom of this page and see the several files on this website where Barb discusses qualified immunity in detail.]

The Court of Appeals for the Tenth Circuit addressed qualified immunity in two March 2008 cases.  That court held that there is no qualified immunity for the act of removing a child from its home without a proper showing of just cause: the child has a Fourth Amendment tight, too.  [Note: See, FourthAmend- ment.com.]

Turner has also met the second element of his burden, to show that the right allegedly violated was clearly established. “The law is clearly established when a Supreme Court or Tenth Circuit decision is on point, or if the clearly established weight of authority from other courts shows that the right mst be as the plaintiff maintains.” Roska [ex rel. Roska v. Peterson], 328 F.3d [1230,] 1248 [(10th Cir.2003)]. It was clearly established, at least two years before the events in question, that absent probable cause and a warrant or exigent circumstances, neither police nor social workers may enter a person's home without a valid consent, even for the purpose of taking a child into custody, much less to conduct a search. Id. at 1248-50 & n. 23. It was also established that the warrantless seizure and detention of a person without probable cause or exigent circumstances, as alleged in Turner's petition, is unreasonable. See Olsen [v. Layton Hills Mall], 312 F.3d [1304,] 1312 [(10th Cir.2002)]. We therefore affirm the district court's denial of qualified immunity on Turner's Fourth Amendment claim against Houseman.

Turner v. Houseman, 2008 WL 647526, 2008 U.S. App. LEXIS 5127,  slip op. at 3 (10th Cir. (Okla.)March 10, 2008) ((NO. 07-6108, unpublished).
The law was clearly established, prior to the events in question, that children enjoy Fourth Amendment rights to be free from seizure, including the improper removal from their home. See J.B. v. Washington County, 127 F.3d 919, 928-29 (10th Cir.1997). We therefore affirm the denial of qualified immunity on plaintiff's Fourth Amendment claim.
Burgess v. Houseman, 2008 WL 647522, 2008 U.S. App. LEXIS 5131, slip op. at 3 (10th Cir. March 10, 2008) ((NO. 07-6107, unpublished) :

Opposing counsel has no immunity, but, as a rule, because there is no attorney-client relationship between the attorney and the accused, the opposing counsel does not have a duty to the accused.  (There are different types of cases where an opposing counsel might have a duty to a nonclient, but not, for instance, in a divorce case.)
 
Because some of the other forms of immunity are usually fact-laden, you should consult a local attorney to see whether the following people, companies, organizations, governmental entities can be sued in your state: the guardian ad litem, the community center where supervised visits take place, the people who make the policy followed during supervised visitations, the supervisor of supervised visits, the therapist of the accused child, the state's experts, the Society for the Prevention of Cruelty to Children, Catholic Charities.  The list goes on.

Even though the Massachusetts constitution says there should be a remedy for all wrongs, the walls of immunity are high, making a successful civil suit next to impossible.  As a general principle, anyone associated with a case child abuse or rape of child is immunized against liability for incompetence.