The Judge Can Do No Wrong; Judicial Immunity And The Police State

Law Offices of Jerry L. Steering

Wisdom * Justice * Constitution * Compensation




The Police State Isn’t Just The Police. It’s The body politic. It’s those of us who get to sit on juries, and either condone or disapprove police actions. It’s the Judges and Justices who make the law (and don’t think for one second that it’s not all made up by the Courts). It’s Congress  and state legislatures. It’s the media. It’s the politicians. It’s Hollywood. It’s any way and any form of shaping our belief system, to accept, as not only common or normal, but even as reasonable, what would have been considered police outrages and blatant violations of Constitutional rights not all that long ago. In the end, the police state is you; the voters and the jurors. It is what you tolerate; it’s what your concept of what’s reasonable, that, in the end, determines whether, and to what extent, we live in a police state or a free society. Those words often have little meaning for most of us; that is, until government abuse visits us, a friend, an associate or some loved one; something that most of us would have never expected at all.


Although any given government judicial, legislative or executive official make act otherwise as individuals, free from the dictates and pressures of their respective institutions and peers, when they act as police officers, judges and legislatures and even jurors, they act “institutionally”. Thus, politicians feel political pressure to act tough on crime, judges feel political pressure to find a way to convict / affirm the conviction of the accused, and the police feel pressured to make more and more arrests; often for victimless crimes, like drug possession.


These days, one of society’s major tool in establishing the police state, is the use of various ”balancing tests”; to “balance” police intrusions and seizures of our and yours, against your long established Constitutional rights. The weight on the other pans of the justice scale, are today’s buzzword’s, such as “officer’s safety” and “national security”. Tomorrow, it will be some other justification for trampling your rights. The most blatant government efforts to violate your rights, however, are the immunities afforded those public officers, created by Judges and legislatures. Immunities don’t balance your rights; they simply erase them altogether; all in the name of “Sovereign Immunity”; “The King Can Do No Wrong”. In large part, immunities for police and prosecutorial officials have brought about today’s police state, and are essential to the maintenance of police oppression of society today. 


People don’t know what freedoms they enjoy. Most Americans believe that an innocent who is the victim of abuse by the government should have some avenue of redress. The body politic, however, has no clue as to the various sorts of outrageous, malicious, tortious and downright felonious conduct by the government is immunized by statutes, and by common law appellate court opinions. Many Judges and Justices have expanded these immunities beyond the limits of either logic or history.


Sovereign Immunity; Placing The Government Above The Law


Sovereign Immunity Is Inconsistent With A Basic Tenet Of Our American Form Of Government: That No One, Not Even The Government, Is Above The Law


Fidelity to the rule of law is the centerpiece of a free society. It means that no one is beneath the protection of the law and no one is absolved of the obligation to comply with it. The effect of sovereign immunity, however, is to place the government above the law and to ensure that many individuals who have suffered egregious harms by public officers will be unable to receive redress for their injuries. The judicial role of enforcing and upholding the Constitution is rendered illusory when the government has complete immunity to suit. Simply stated, sovereign immunity undermines the basic principle announced in Marbury v. Madison, 5 U.S. 137 (1803) that “[t]he very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.”


Origins Of The Doctrine Of Sovereign Immunity; “The King Can Do No Wrong”


English law began not from a position of general judicial liability for damages but from a position of very limited liabilities that resulted in only nominal penalties. Moreover, the doctrine of judicial immunity was developed primarily to eliminate collateral attacks on judgments and to confine procedures in error to the hierarchy of the king’s courts; these grounds are relevant to discussions of judicial immunity today and are especially relevant to an analysis of Sparkman.


During the Reign of Edward I, those minimal immunities were expanded into what we recognize today as the “Doctrine of Sovereign Immunity“; that “the King can do no wrong.’” Since the time of Edward the First, the Crown of England has not been suable unless it has specifically consented to suit. Throughout American history, United States courts have applied this principle, although they often have admitted that its justification in this country is unclear.


A Doctrine Derived From The Premise That “The King Can Do No Wrong” Deserves No Place In American Law


The United States was founded on a rejection of a monarchy and of royal prerogatives. American government is based on the fundamental recognition that the government and government officials can do wrong and must be held accountable. Sovereign immunity undermines that basic pillar of American justice. The doctrine of Sovereign Immunity is inconsistent with the United States Constitution. Nowhere does the Constitution or specifically mention or imply that the federal government has complete immunity to suit; save when it consents to be sued. Sovereign immunity cannot be found in the Constitution from an originalist perspective; even in the writing of the late Mr. Justice Antonin Scalia. See, Antonin Scalia, Historical Abnormalities in Administrative Lawin 1985 YEARBOOK 103, 104 (Supreme Court Historical Society):


“At the time of Marbury v. Madison [1803] there was no doctrine of domestic sovereign immunity, as there never had been in English law. As Marshall notes in passing in the portion of his opinion establishing the proposition that there is no right without a remedy: “In Great Britain, the king himself is sued in the respectful form of a petitimi, and he never fails to comply with the judgment of the court.” (Antonin Scalia, 1985).


Sovereign immunity is a doctrine based on a common law principle borrowed from the English common law. However, Article VI of the Constitution states that the Constitution and laws made pursuant to them are the supreme law, and, as such, it should prevail over government claims of sovereign immunity. Yet, sovereign immunity, a common lawdoctrine, trumps even the Constitution and bars suits for relief against government entities in violation of the Constitution and federal laws.” 


Government accountability is inherent in the structure of the Constitution itself, and is embodied in various constitutional provisions. Long ago, in Marbury v. Madison, 5 U.S. 137 (1803), Chief Justice John Marshall explained that the central purpose of the Constitution is to limit the actions of government and government officers. In other words, the government is accountable for its actions. In Marbury, the Court emphasized the need for accountability and redress in its declaration that “[t]he very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.” Chief Justice Marshall declared: “[t]he government of the United States has been emphatically termed a government of laws, and not of men.”
Sovereign immunity is inconsistent with all of these basic principles of the American republic. Sovereign immunity allows the government to violate the Constitution or laws of the United States without accountability. Constitutional and statutory rights can be violated, but individuals are left with no remedies:


“The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws whenever he receives an injury. One of the first duties of government is to afford that protection. In Great Britain, the King himself is sued in the respectful form of a petition, and he never fails to comply with the judgment of his court.

In the third volume of his Commentaries, page 23, Blackstone states two cases in which a remedy is afforded by mere operation of law.

“In all other cases,” he says,

“it is a general and indisputable rule that where there is a legal right, there is also a legal remedy by suit or action at law whenever that right is invaded.”

And afterwards, page 109 of the same volume, he says,

“I am next to consider such injuries as are cognizable by the Courts of common law. And herein I shall for the present only remark that all possible injuries whatsoever that did not fall within the exclusive cognizance of either the ecclesiastical, military, or maritime tribunals are, for that very reason, within the cognizance of the common law courts of justice, for it is a settled and invariable principle in the laws of England that every right, when withheld, must have a remedy, and every injury its proper redress.” 

The Government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right.

If this obloquy is to be cast on the jurisprudence of our country, it must arise from the peculiar character of the case.

It behooves us, then, to inquire whether there be in its composition any ingredient which shall exempt from legal investigation or exclude the injured party from legal redress. In pursuing this inquiry, the first question which presents itself is whether this can be arranged with that class of cases which come under the description of damnum absque injuria – a loss without an injury.” Marbury v. Madison, 5 U.S. 137 (1803) (Marshall, C.J.).


Although the evil of failing to provide a remedy for violations of the rights of civilians for unlawful and harmful actions taken against them by government officials is blatant and offensive to our American’s basic sense of justice, sovereign immunity is not fading from American law. Rather, the U.S. Supreme Court is dramatically expanding the scope of the evil shield of sovereign immunity. 


This is so, even though there is no apparent Constitutional basis for sovereign immunity. See, Erwin Chemerinsky, Against Sovereign Immunity, 53 Stanford Law Review 1201, 1204 (2001). The supposedly “Originalist” / Anti-Judicial Activist / Conservative Wing of the Supreme Court has nonetheless been creating new immunities for police officers, public prosecutors and even judges; rapidly and out of thin air. Moreover, the Anti-Judicial Activist / Conservative Wing of the Supreme Court has recently enlarged and expanded a formidable barrier to redress for Constitutional violations by police officers and other public officials, by enlarging the reach of the constable’s go-to defense du jour; the doctrine of qualified immunity


Expansion Of Sovereign Immunity To Protect State Governments From Federal Lawsuits In State Courts.


In recent years, the Supreme Court has greatly expanded the sovereign immunity of state governments from suit on federal law claims in state courts, and of state and local officials federal court. For example, in Alden v. Maine, 527 U.S. 706 (1999), the Supreme Court held that sovereign immunity broadly protects state governments from being sued in state court without their consent, even to enforce federal laws. In Seminole Tribe v. Florida, 517 U.S. 44 (1996), the Court greatly limited the ability of Congress to authorize suits against state governments and to override sovereign immunity. The Court applied this principle within the past couple of years to bar suits against states for patent infringement and for age discrimination.  Although all of these cases involve suits against state governments, the Court has indicated no willingness or likelihood of relaxing the sovereign immunity of the United States government.


Expansion Of Sovereign Immunity To Protect Local And State Officials And Governments From Lawsuits; Judicial Activism Of The Right


Immunities For Federal Constitutional Violations By Judges; Absolute Judicial Immunity


The Supreme Court has repeatedly upheld Judicial Immunity, based on the ground that because of the very nature of the adjudicatory function, that is someone has to win and someone has to lose, that save absolute judicial immunity, judges would be bombarded with endless lawsuits, complaining about the outcome of the losing party’s case:


” . . . that the nature of the adjudicative function requires a judge frequently to disappoint some of the most intense and ungovernable desires that people can have. As Judge Posner pointed out in his dissenting opinion below, this is the principal characteristic that adjudication has in common with legislation and with criminal prosecution, which are the two other areas in which absolute immunity has most generously been provided. 792 F.2d, at 660. If judges were personally liable for erroneous decisions, the resulting avalanche of suits, most of them frivolous but vexatious, *227would provide powerful incentives for judges to avoid rendering decisions likely to provoke such suits. Id., at 660–661. The resulting timidity would be hard to detect or control, and it would manifestly detract from independent and impartial adjudication. Nor are suits against judges the only available means through which litigants can protect themselves from the consequences of judicial error. Most judicial mistakes or wrongs are open to correction through ordinary mechanisms of review, which are largely free of the harmful side-effects inevitably associated with exposing judges to personal liability.” (Forrester v. White, 489 U.S. 219, 226-228 (1988)).


Even in the most egregious cases of abuse of persons by Judges acting in that official role, the Supreme Court has repeatedly held that so long as the Judge was carrying out his/her judicial functions, that the Judge is immune from suit. The Supreme Court reaffirmed the shield of judicial immunity in Stump v. Sparkman, 435 U.S. 349 (1978). In Stump v. Sparkman:


“A mother filed a petition in affidavit form in an Indiana Circuit Court, a court of general jurisdiction under an Indiana statute, for authority to have her “somewhat retarded” 15-year-old daughter (a respondent here) sterilized, and petitioner Circuit Judge approved the petition the same day in an ex parte proceeding without a hearing and without notice to the daughter or appointment of a guardian ad litem. The operation was performed shortly thereafter, the daughter having been told that she was to have her appendix removed. About two years later, she was married, and her inability to become pregnant led her to discover that she had been sterilized. As a result, she and her husband (also a respondent here) filed suit in Federal District Court pursuant to 42 U.S.C. § 1983 against her mother, the mother’s attorney, the Circuit Judge, the doctors who performed or assisted in the sterilization, and the hospital where it was performed, seeking damages for the alleged violation of her constitutional rights. Holding that the constitutional claims required a showing of state action and that the only state action alleged was the Circuit Judge’s approval of the sterilization petition, the District Court held that no federal action would lie against any of the defendants because the Circuit Judge, the only state agent, was absolutely immune from suit under the doctrine of judicial immunity.”Stump v. Sparkman, 435 U.S. 349 (1978).


In upholding the Judges claim to absolute Judicial Immunity, the United States Supreme Court held:


“The governing principle of law is well established, and is not questioned by the parties. As early as 1872, the Court recognized that it was “a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, [should] be free to act upon his own convictions, without apprehension of personal consequences to himself.” Bradley v. Fisher, supra at 80 U. S. 347. For that reason, the Court held that “judges of courts of superior or general jurisdiction are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction and are alleged to have been done maliciously or corruptly.” 13 Wall. at 80 U. S. 351. Later, we held that this doctrine of judicial immunity was applicable in suits under § 1 of the Civil Rights Act of 1871, 42 U.S.C. § 1983, for the legislative record gave no indication that Congress intended to abolish this long-established principle. Pierson v. Ray, 386 U. S. 547 (1967).”

The relevant cases demonstrate that the factors determining whether an act by a judge is a “judicial” one relate to the nature of the act itself, i.e., whether it is a function normally performed by a judge, and to the expectations of the parties, i.e., whether they dealt with the judge in his judicial capacity. Here, both factors indicate that Judge Stump’s approval of the sterilization petition was a judicial act. [Footnote 11] State judges with general jurisdiction not infrequently are called upon in their official capacity to approve petitions relating to the affairs of minors, as for example, a petition to settle a minor’s claim. Furthermore, as even respondents have admitted, at the time he approved the petition presented to him by Mrs. McFarlin, Judge Stump was “acting as a county circuit court judge.” See supraat 435 U. S. 360. We may infer from the record that it was only because Judge Stump served in that position that Mrs. McFarlin, on the advice of counsel, submitted the petition to him for his approval. Because Judge Stump performed the type of act normally performed only by judges, and because he did so in his capacity as a Circuit Court Judge, we find no merit to respondents’ argument that the informality with which he proceeded rendered his action nonjudicial and deprived him of his absolute immunity.” (White, J.)


In a vigorous dissent, Associate Justice Potter Stewart believed that ordering a summary sterilization of a mentally incompetent person, is in no way a judicial act:



“Believing that the conduct of Judge Stump on July 9, 1971, was not a judicial act, I do not need to inquire whether he was acting in “the clear absence of all jurisdiction over the subject matter.” Bradley v. Fisher, 13 Wall. at 80 U. S. 351. “Jurisdiction” is a coat of many colors. I note only that the Court’s finding that Judge Stump had jurisdiction to entertain Mrs. McFarlin’s petition seems to me to be based upon dangerously broad criteria. Those criteria are simply that an Indiana statute conferred “jurisdiction of all . . . causes, matters and proceedings,” and that there was not in 1971 any Indiana law specifically prohibiting what Judge Stump did.”

The only question before us in this case is the scope of judicial immunity. How the absence of a “judicial act” might affect the issue of whether Judge Stump was acting “under color of” state law within the meaning of 42 U.S.C. § 1983, or the issue of whether his act was that of the State within the meaning of the Fourteenth Amendment need not, therefore, be pursued here.” (Stewart, J., Dissenting).


Although an examination of the history of the doctrine of judicial immunity leads to quite contrary conclusions as Justice Byron White’s in Stump v. Sparkman (See, Stump v. Sparkman And The History Of Judicial ImmunityJ. Randolph Block, 5 Duke Law Journal (1980)), the sad truth is that even if there wasn’t any solid legal precedent, the Supreme Court is simply not going to allow you and me to sue a judge, even if he authorizes the summary sterilizations of mentally incompetent persons.  The Judges can do no wrong. They are immune, because they say that they are.


So, the next time that some Judge tramples your constitutional rights, just remember; The Judge Can Do No Wrong.


Jerry L. Steering



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