Legal immunity

Last updated January 16, 2024

Legal immunity, or immunity from prosecution, is a legal status wherein an individual or entity cannot be held liable for a violation of the law, in order to facilitate societal aims that outweigh the value of imposing liability in such cases. Such legal immunity may be from criminal prosecution, or from civil liability (being subject of lawsuit), or both. The most notable forms of legal immunity are parliamentary immunity and witness immunity. One author has described legal immunity as "the obverse of a legal power":^[1]

A party has an immunity with respect to some action, object or status, if some other relevant party – in this context, another state or international agency, or citizen or group of citizens – has no (power) right to alter the party's legal standing in point of rights or duties in the specified respect. There is a wide range of legal immunities that may be invoked in the name of the right to rule. In international law, immunities may be created when states assert powers of derogation, as is permitted, for example, from the European Convention on Human Rights "in times of war or other public emergency." Equally familiar examples include the immunities against prosecution granted to representatives (MPs or councillors) and government officials in pursuit of their duties. Such legal immunities may be suspect as potential violations of the rule of law, or regarded as quite proper, as necessary protections for the officers of the state in the rightful pursuit of their duties.

Criticism

Legal immunities may be subject to criticism because they institute a separate standard of conduct for those who receive them. For example, as one author notes:

In the United Kingdom, some exercises of the royal prerogative, which seems to give the government of the day opportunities for massive and unaccountable discretion, rightly come under suspicion, whereas the immunity from libel proceedings of Members of Parliament speaking in the House, or of persons giving evidence in a court of law, is generally regarded as an acceptable protection against powerful (and wealthy) interests who would otherwise constrain public debate or the administration of justice.^[1]

Types

Immunity of government leaders

Many forms of immunity are granted to government leaders to rule over the world, continent, nation, province, urban area and rural area without fear of being sued or charged with a crime for so doing:

Sovereign immunity, the prevention of lawsuits or prosecution against rulers or governments without their given consent
Sovereign immunity in the United States bars suit against federal, state, and tribal governments, which cannot be sued without their consent. Governmental consent to be sued is expressed through legislation as a limited waiver of sovereign immunity
Parliamentary immunity, immunity granted to government leaders during their tenure and in the course of their duties
Speech or Debate Clause, a provision in the United States Constitution that provides immunity to members of Congress for statements made in either house
Immunity from prosecution (international law), exclusion of elected officials from prosecution under international law
State immunity, principle of international law that the government of a state is not amenable before the courts of another state

Immunity of government officials

Judicial immunity, the absolute (sovereign) immunity of a judiciary in the course of their official duties
Qualified immunity, in the United States, sovereign immunity of all government officials and government employees performing tasks as part of the government's actions
Absolute immunity, a type of sovereign immunity for all government officials and government employees that confers total immunity when acting in the course of their duties
Diplomatic immunity, agreement between sovereign governments to exclude diplomats from local laws because grants of immunity are particularly important in intergovernmental relations, where traditions have arisen to prevent the federal civil servants of a country's foreign service cadre from being harassed by their host countries.

Such immunities may be granted by law (statutory or constitutional) or by treaty.

Immunity of resident citizens of a country participating in the legal process

Amnesty law, a law that provides immunity for past crimes
Spousal privilege, also called spousal immunity, protects a spouse from testifying against the defendant
Witness immunity, immunity granted to a witness in exchange for testimony

Immunity of private officials

Reporter's privilege, a limited First Amendment right many jurisdictions by statutory law or judicial decision have by which journalists may not be prosecuted for protecting their confidential sources from discovery ^[2]

Immunity of nonprofit organizations

Charitable immunity, immunity from liability granted to charities in many countries from the 19th century to the mid-20th century

Such immunities may be granted by law or, for witness immunity, by prosecutors or other authorities on a case-by-case basis, commonly as an agreement with the witnesses.

Related Research Articles

Immunity may refer to:

Sovereign immunity, or crown immunity, is a legal doctrine whereby a sovereign or state cannot commit a legal wrong and is immune from civil suit or criminal prosecution, strictly speaking in modern texts in its own courts. State immunity is a similar, stronger doctrine, that applies to foreign courts.

Parliamentary privilege is a legal immunity enjoyed by members of certain legislatures, in which legislators are granted protection against civil or criminal liability for actions done or statements made in the course of their legislative duties. It is common in countries whose constitutions are based on the Westminster system.

The doctrine and rules of state immunity concern the protection which a state is given from being sued in the courts of other states. The rules relate to legal proceedings in the courts of another state, not in a state's own courts. The rules developed at a time when it was thought to be an infringement of a state's sovereignty to bring proceedings against it or its officials in a foreign country.

In United States law, the term color of law denotes the "mere semblance of legal right," the "pretense or appearance of" right; hence, an action done under color of law adjusts (colors) the law to the circumstance, yet said apparently legal action contravenes the law.

In the common law, spousal privilege is a term used in the law of evidence to describe two separate privileges that apply to spouses: the spousal communications privilege and the spousal testimonial privilege.

In the United States, qualified immunity is a legal principle of federal constitutional law that grants government officials performing discretionary (optional) functions immunity from lawsuits for damages unless the plaintiff shows that the official violated "clearly established statutory or constitutional rights of which a reasonable person would have known". It is a form of sovereign immunity less strict than absolute immunity that is intended to protect officials who "make reasonable but mistaken judgments about open legal questions", extending to "all [officials] but the plainly incompetent or those who knowingly violate the law". Qualified immunity applies only to government officials in civil litigation, and does not protect the government itself from suits arising from officials' actions.

Judicial immunity is a form of sovereign immunity, which protects judges and others employed by the judiciary from liability resulting from their judicial actions. It is intended to ensure that judges can make decisions free from improper influence exercised on them, contributing to the impartiality of the judiciary and the rule of law. In modern times, the main purpose of "judicial immunity [is to shield] judges from the suits of ordinary people", mainly litigants who may be dissatisfied with the outcome of a case decided by the judge.

The Speech or Debate Clause is a clause in the United States Constitution. The clause states that "The Senators and Representatives" of Congress "shall in all Cases, except Treason, Felony, and Breach of the Peace, be privileged from Arrest during their attendance at the Session of their Respective Houses, and in going to and from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place."

Feres v. United States, 340 U.S. 135 (1950), combined three pending federal cases for a hearing in certiorari in which the Supreme Court of the United States held that the United States is not liable under the Federal Tort Claims Act for injuries to members of the armed forces sustained while on active duty and not on furlough and resulting from the negligence of others in the armed forces. The opinion is an extension of the English common-law concept of sovereign immunity.

Nixon v. Fitzgerald, 457 U.S. 731 (1982), was a US Supreme Court case that dealt with immunity from prosecution of government officials performing discretionary functions when their actions did not violate clearly-established law.

The following outline is provided as an overview of and introduction to tort law in common law jurisdictions:

The Federal Tort Claims Act ("FTCA") is a 1946 federal statute that permits private parties to sue the United States in a federal court for most torts committed by persons acting on behalf of the United States. Historically, citizens have not been able to sue the government — a doctrine referred to as sovereign immunity. The FTCA constitutes a limited waiver of sovereign immunity by the United States, permitting citizens to pursue some tort claims against the federal government. It was passed and enacted as a part of the Legislative Reorganization Act of 1946.

In United States law, absolute immunity is a type of sovereign immunity for government officials that confers complete immunity from criminal prosecution and suits for damages, so long as officials are acting within the scope of their duties. The Supreme Court of the United States has consistently held that government officials deserve some type of immunity from lawsuits for damages, and that the common law recognized this immunity. The Court reasons that this immunity is necessary to protect public officials from excessive interference with their responsibilities and from "potentially disabling threats of liability."

In United States law, the federal government as well as state and tribal governments generally enjoy sovereign immunity, also known as governmental immunity, from lawsuits. Local governments in most jurisdictions enjoy immunity from some forms of suit, particularly in tort. The Foreign Sovereign Immunities Act provides foreign governments, including state-owned companies, with a related form of immunity—state immunity—that shields them from lawsuits except in relation to certain actions relating to commercial activity in the United States. The principle of sovereign immunity in US law was inherited from the English common law legal maxim rex non potest peccare, meaning "the king can do no wrong." In some situations, sovereign immunity may be waived by law.

The California Government Claims Act sets forth the procedures that must be followed when filing a claim for money or damages against a governmental entity in the state of California. This includes state, county, and local entities, as well as their employees. The Government Claims Act is found in Division 3.6 of the Government Code, Govt. Code §§ 810 et seq.

Parliamentary privilege in the United Kingdom is a legal immunity enjoyed by members of the House of Commons and House of Lords designed to ensure that parliamentarians are able to carry out their duties free from interference. The privileges are freedom of speech, freedom from arrest on civil matters, freedom of access to the sovereign, and that 'the most favourable construction should be placed on all the Houses' proceedings'. Fair and accurate reporting of the proceedings of parliament is also protected by parliamentary privilege.

Franchise Tax Board of California v. Hyatt, 587 U.S. ___ (2019), was a United States Supreme Court case that determined that unless they consent, states have sovereign immunity from private suits filed against them in the courts of another state. The 5–4 decision overturned precedent set in a 1979 Supreme Court case, Nevada v. Hall. This was the third time that the litigants had presented their case to the Court, as the Court had already ruled on the issue in 2003 and 2016.

Pierson v. Ray, 386 U.S. 547 (1967), was a United States Supreme Court case in which the Court first introduced the justification for qualified immunity for police officers from being sued for civil rights violations under Section 1983, by arguing that "[a] policeman's lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he had probable cause, and being mulcted in damages if he does."

The president of the United States enjoys absolute immunity from many lawsuits while in office; it is legally untested whether they also enjoy criminal immunity from arrest or prosecution. Neither civil nor criminal immunity is explicitly granted in the Constitution or any federal statute.

References

1 2 Dudley Knowles, Political Obligation: A Critical Introduction (2009), p. 26.
↑ "LexMedia". lexmedia.com.au. Archived from the original on 7 September 2015. Retrieved 14 August 2015.

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[Knowles-1] 1 2 Dudley Knowles, Political Obligation: A Critical Introduction (2009), p. 26.

[2] "LexMedia". lexmedia.com.au. Archived from the original on 7 September 2015. Retrieved 14 August 2015.

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