It's a living legal community making laws accessible and interactive. Click Here to get Started »
Exemption from performing duties that the law generally requires other citizens to perform, or from a penalty or burden that the law generally places upon other citizens.
Sovereign immunity prevents a sovereign state or person from being subjected to suit without its consent.
The doctrine of sovereign immunity stands for the principle that a nation is immune from suit in the courts of another country. It was first recognized by U.S. courts in the case of The Schooner Exchange v. M'Faddon, 11 U.S. (7 Cranch) 116, 3 L. Ed. 287 (1812). At first, courts espoused a theory that provided absolute immunity from the jurisdiction of a U.S. court for any act by a foreign state. But beginning in the early 1900s, courts relied on the political branches of government to define the breadth and limits of sovereign immunity.
In 1952, the U.S. State department reacted to an increasing number of commercial transactions between the United States and foreign nations by recognizing foreign immunity only in noncommercial or public acts, and not in commercial or private acts. However, it was easily influenced by foreign diplomats who requested absolute sovereign immunity, and the application of sovereign immunity became inconsistent, uncertain, and often unfair.
Complaints about inconsistencies led to the passage of the Foreign Sovereign Immunities Act of 1976 (28 U.S.C.A. §§ 1 note, 1330, 1332, 1391, 1441, 1602–1611). By that act, Congress codified the theory of sovereign immunity, listing exceptions for certain types of acts such as commercial acts, and granted the exclusive power to decide sovereign immunity issues to the courts, rather than to the State Department.
Indian tribes have been granted sovereign immunity status by the United States, and therefore they generally cannot be sued without the consent of either Congress or the tribe. This immunity is justified by two considerations: First, historically, with more limited resources and tax bases than other governments, Indian tribes generally are more vulnerable in lawsuits than are other governments. Second, granting sovereign nation status to tribes is in keeping with the federal policy of self-determination for Indians.
Indian tribes are immune from suit whether they are acting in a governmental or a proprietary capacity, and immunity is not limited to acts conducted within a reservation. However, individual members of a tribe do not receive immunity for their acts; only the tribe itself is immune as a sovereign nation.
Governmental Tort Immunity
Sovereign immunity may also apply to federal, state, and local governments within the United States, protecting these governments from being sued without their consent. The idea behind domestic sovereign immunity—also called governmental tort immunity—is to prevent money judgments against the government, as such judgments would have to be paid with taxpayers' dollars. As an example, a private citizen who is injured by another private citizen who runs a red light generally may sue the other driver for negligence. But under a strict sovereign immunity doctrine, a private citizen who is injured by a city employee driving a city bus has no cause of action against the city unless the city, by ordinance, specifically allows such a suit.
Governmental tort immunity is codified at the federal level by the Federal Tort Claims Act (28 U.S.C.A. § 1291 ), and most states and local governments have similar statutes. Courts and legislatures in many states have greatly restricted, and in some cases have abolished, the doctrine of governmental tort immunity.
The doctrine of sovereign immunity has its roots in the law of feudal England and is based on the tenet that the ruler can do no wrong. Public policy grounds for granting immunity from civil lawsuits to judges and officials in the executive branch of government survive even today. Sometimes known as official immunity, the doctrine was first supported by the U.S. Supreme Court in the 1871 case of Bradley v. Fisher, 80 U.S. 335, 20 L. Ed. 646. In Bradley, an attorney attempted to sue a judge because the judge had disbarred him. The Court held that the judge was absolutely immune from the civil suit because the suit had arisen from his judicial acts. The Court recognized the need to protect judicial independence and noted that malicious or improper actions by a judge could be remedied by impeachment rather than by litigation.
Twenty-five years later, in Spalding v. Vilas, 161 U.S. 483, 16 S. Ct. 631, 40 L. Ed. 780 (1896), the Court expanded the doctrine to include officers of the federal Executive Branch. In Spalding, an attorney brought a defamation suit against the U.S. postmaster general, who had circulated a letter that criticized the attorney's motives in representing local postmasters in a salary dispute. At that time, the postmaster general was a member of the president's cabinet. The Court determined that the proper administration of public affairs by the Executive Branch would be seriously crippled by a threat of civil liability and granted the postmaster general absolute immunity from civil suit for discretionary acts within the scope of the postmaster's authority. Federal courts since Spalding have continued to grant absolute immunity—a complete bar to lawsuits, regardless of the official's motive in acting—to federal executive officials, so long as their actions are discretionary and within the scope of their official duties.
Members of Congress and state legislators are absolutely immune from civil lawsuits for their votes and official actions. The U.S. Supreme Court, in Bogan v. Scott-Harris, 523 U.S. 44, 118 S. Ct. 966, 140 L. Ed. 2d 79 (1998), extended absolute immunity to local legislators (e.g., city council members, and county commissioners) when they act in their legislative, rather than administrative, capacities.
Prosecutors are absolutely immune for their actions during a trial or before a grand jury. However, during the investigatory phase, they are only granted qualified immunity. In Kalina v. Fletcher, 522 U.S. 118, 118 S. Ct. 502, 139 L. Ed. 2d 471 (1997), the U.S. Supreme Court ruled that a prosecutor was not entitled to absolute immunity with respect to her actions in making an allegedly false statement of fact in an affidavit supporting an application for an arrest warrant. Policy considerations that merited absolute immunity included both the interest in protecting a prosecutor from harassing litigation that would divert his or her time and attention from official duties and the interest in enabling him or her to exercise independent judgment when deciding which suits to bring and in conducting them in court. These considerations did not apply when a prosecutor became an official witness in swearing to a statement.
However, in Conn v. Gabbert, 526 U.S. 286, 119 S. Ct. 1292, 143 L. Ed. 2d 399 (1999), the U.S. Supreme Court held that prosecutors cannot be sued for having lawyers searched or for interfering with the ability to advise a client who is appearing before a grand jury. Prosecutors have a qualified immunity in this situation, based on the two-step analysis that the courts apply to qualified-immunity issues. Under this two-part test, an Executive Branch official will be granted immunity if (1) the constitutional right that allegedly has been violated was not clearly established; and (2) the officer's conduct was "objectively reasonable" in light of the information that the officer possessed at the time of the alleged violation. The qualified-immunity test is usually employed during the early stages of a lawsuit. If the standard is met, a court will dismiss the case.
Police and prison officials may be granted qualified immunity. In Hope v. Pelzer, 536 U.S. 730, 122 S. Ct. 2508, 153 L. Ed. 2d 666 (2002), the U.S. Supreme Court held that Alabama prison officials were not eligible for qualified immunity because they were on notice that their conduct violated established law even in novel factual circumstances. The officials were on notice that tying a prisoner to a hitching post in the prison yard constituted cruel and unusual punishment under the Eighth Amendment.Prior court rulings and federal prison policies also made clear that law banning the practice had been clearly established. Therefore, the officials were not qualified for immunity.
In Saucier v. Katz, 533 U.S. 194, 121 S. Ct. 2151, 150 L. Ed.2d 272 (2001), the U.S. Supreme Court applied the qualified-immunity test to a claim that a U.S. Secret Service agent had used excessive force in removing a protester. The Court reasserted its general belief that law officers must be given the benefit of the doubt that they acted lawfully in carrying out their day-today activities. Moreover, one of the main goals of qualified immunity is to remove the defendant from the lawsuit as quickly as possible, thereby reducing legal costs. Justice Anthony Kennedy restated the principle that immunity is not a "mere defense" to liability but an "immunity from suit." Therefore, immunity issues must be resolved as early as possible. As to the first step, Kennedy agreed that the case revealed a "general proposition" that excessive force is contrary to the Fourth Amendment. However, a more specific inquiry must take place to see whether a reasonable officer "would understand that what he is doing violates that right." As to this second step, Justice Kennedy rejected the idea that because the plaintiff and the officer disputed certain facts, there could be no short-circuiting of this step. He stated that the "concern of the immunity inquiry is to
acknowledge that reasonable mistakes can be made as to the legal constraints on particular police conduct." Officers have difficulty in assessing the amount of force that is required in a particular circumstance. If their mistake as to "what the law requires is reasonable, however, the officer is entitled to the immunity defense."
In Nixon v. Fitzgerald, 457 U.S. 731, 102 S. Ct. 2690, 73 L. Ed. 2d 349 (1982), the U.S. Supreme Court held that former U.S. president Richard M. Nixon was entitled to absolute immunity from liability predicated on his official acts as president. In Nixon, a weapons analyst, A. Ernest Fitzgerald, had been fired by the U.S. Air Force after he had disclosed to Congress certain cost overruns within the Defense Department. Fitzgerald sued Nixon and two former presidential aides for wrongful retaliatory termination.
The Court emphasized the singular importance of the duties of the president, and noted that the diversion of the president's energies over concern for private lawsuits "would raise unique risks to the effective functioning of government." It also observed that the president, in view of the visibility of the office, would be an easy target for civil lawsuits. The ensuing personal vulnerability and distraction would prove harmful to the nation.
Despite the Court's grant of absolute immunity to the president for official actions, a president does not have immunity from civil lawsuits for actions that allegedly occurred before becoming president. The Court, in Clinton v. Jones, 520 U.S. 681, 117 S. Ct. 1636, 137 L. Ed. 2d 945 (1997), ruled that President Bill Clinton had to defend himself in a sexual-harassment lawsuit that was based on his alleged actions while governor of Arkansas. Clinton had contended that the lawsuit could not proceed until he left office, but the Court disagreed. The Court pointed out that grants of official immunity are based on a functional analysis, and it would not extend immunity to actions outside of an office-holder's official capacities. Moreover, it concluded that defending the lawsuit would not divert Clinton's energies.
Immunity from Prosecution
State and federal statutes may grant witnesses immunity from prosecution for the use of their testimony in court or before a grand jury. Sometimes, the testimony of one witness is so valuable to the goals of crime prevention and justice that the promise of allowing that witness to go unpunished is a fair trade. For example, a drug dealer's testimony that could help law enforcement to destroy an entire illegal drug-manufacturing network is more beneficial to society than is the prosecution of that lone drug dealer. Although the Fifth Amendment to the U.S. Constitution grants witnesses a privilege against self-incrimination, the U.S. Supreme Court has permitted prosecutors to overcome this privilege by granting witnesses immunity. Prosecutors have the sole discretion to grant immunity to witnesses who appear before a grand jury or at trial.
States employ one of two approaches to prosecutorial immunity: Use immunity prohibits only the witness's compelled testimony, and evidence stemming from that testimony, from being used to prosecute the witness. The witness still may be prosecuted so long as the prosecutor can obtain other physical, testimonial, or circumstantial evidence apart from the witness's testimony. Transactional immunity completely immunizes the witness from prosecution for any offense to which the testimony relates.
Congressional committees have the power to grant testimonial immunity to witnesses who testify before members of Congress. Congressional investigations into allegations of misconduct—such as the Watergate investigations in the 1970s and the iran-contra investigations in the 1980s—rely heavily on witness testimony. Whereas prosecutors simply decide whether to grant immunity to a witness, congressional committees must follow more formal procedures. Immunity may be granted only after a two-thirds majority vote by members of the committee. Ten days before the immunized testimony is given, the committee must advise the Justice Department or the independent counsel of its intention to grant immunity.
At common law, a child could sue a parent for breach of contract and for torts related to property. An adult could sue his or her parent for any tort, whether personal or related to property. In 1891, the Mississippi Supreme Court, in Hewllette v. George, 9 So. 885 (1891), held that a child could not seek compensation for personal injury that was caused by a parent's wrongdoing, so long as the parent and child were obligated by their family duties to one another. The decision was based not on precedent but rather on public policy: The court found that such a lawsuit would undermine the "peace of society and of the families composing society." Criminal laws, the court found, were adequate to protect children.
Other states fell in step with Mississippi, adopting parental immunity of varying degrees. Some parental-immunity laws prohibited only claims of negligence, whereas others prohibited lawsuits for intentional torts such as rapes and beatings. The rationale supporting parental-immunity laws includes the need to preserve family harmony and, with the availability of liability insurance, the need to prevent parents and the children from colluding to defraud insurance companies.
Unjust results have led courts in many states that espouse parental immunity to carve out exceptions to the rule. For example, a child usually can sue a parent for negligence when the parent has failed to provide food or medical care, but not when the parent has merely exercised parental authority. Most courts have abolished the parental-immunity defense for car accident claims, and many allow children to sue their parents for negligent business or employment actions. Courts normally permit wrongful death suits to be brought by a child against a parent or by a parent against a child, because death terminates the parent-child relationship. Moreover, most states allow a child to sue a parent for injuries suffered in utero owing to the negligence of the mother.
Fox, Hazel. 2002. The Law of State Immunity. Oxford; New York: Oxford University Press.
Giuttari, Theodore R. 1970. The American Law of Sovereign Immunity; An Analysis of Legal Interpretation.New York: Praeger.
Sels, John van Loben. 1995."From Watergate to Whitewater: Congressional Use Immunity and Its Impact on the Independent Counsel." Georgetown Law Journal 83.
Stein, Theodore P. 1983. "Nixon v. Fitzgerald: Presidential Immunity as a Constitutional Imperative." Catholic University Law Review 32 (spring).