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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:
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.
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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