Plaintiffs who assert constitutional claims under 42 U.S.C. §1983 commonly seek money damages against a state or local official in the official’s personal capacity. These personal-capacity claims are subject to common law immunity defenses, either an absolute or qualified immunity.
An official sued under §1983 for carrying out a judicial, prosecutorial or legislative function is shielded by absolute immunity. Most §1983 defendants are sued for carrying out allegedly unconstitutional executive and administrative actions. These officials are entitled to assert qualified immunity, which, while not as potent as the absolute immunities, is a very formidable defense. It protects an official who violated federal law from liability so long as she did not violate clearly established federal law. In the author’s view it is the most important defense in §1983 litigation. In fact, a large percentage of §1983 claims are resolved in the defendant’s favor on the basis of qualified immunity.
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