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24 Touro L. Rev. 473 (2008)
Absolute Immunity: General Principles and Recent Developments

handle is hein.journals/touro24 and id is 481 raw text is: ABSOLUTE IMMUNITY: GENERAL PRINCIPLES AND RECENT DEVELOPMENTS Erwin Chemerinsky* When individual government officers are sued for money damages they generally have either absolute or qualified immunity. The Supreme Court has said qualified immunity is the norm; absolute immunity is the exception.1 This discussion focuses on the general principles of absolute immunity and then on the cutting-edge issues and recent developments with regard to absolute immunity. I. OVERVIEW OF THE ENTITLEMENT TO ABSOLUTE IMMUNITY How do courts determine who has absolute, as opposed to qualified, immunity? The Supreme Court has looked to a combina- tion of historical and functional considerations in deciding whether to grant absolute immunity.2 The Court looks to the nature of the im- munity in 1871 when Section 1983 was adopted.3 The Court does * Professor Erwin Chemerinsky is the Alston & Bird Professor of Law and Political Science, Duke Law School. This Article is based on a presentation given at the Practising Law Insti- tute's Twenty-Fourth Annual Conference on Section 1983 Civil Rights Litigation, in New York, New York. 1 Harlow v. Fitzgerald, 457 U.S. 800, 807, 810-11 (1982) (holding absolute immunity is appropriate in limited circumstances (judicial, prosecutorial, and legislative functions), whereas executive officials only receive qualified immunity, which is the norm). 2 Mitchell v. Forsyth, 472 U.S. 511, 521 (1985) (explaining how the Court has generally looked at a historical or common-law basis to determine the immunity in question); Har- low, 457 U.S. at 810-11 ([I]n general our cases have followed a 'functional' approach to immunity law.). 3 Buckley v. Fitzsimmons, 509 U.S. 259, 268-69 (1993) ([S]ome officials perform 'spe-

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