Rogue prosecutors like Ralph Petty of Midland, Texas, aren’t the only government actors who claim absolute immunity from lawsuits—rogue judges also get to take advantage of this judge-made doctrine. But neither prosecutors nor judges could historically avail themselves of this impenetrable shield, and Congress has never included it in the language of its civil rights statutes.  

That’s why, this spring, IJ joined the fight against judicial immunity in a case against a Missouri state court judge who threw two children in jail, without a hearing or court order, because the children voiced their disagreement with the judge’s ruling in their parents’ custody dispute. When the children sued for violations of their civil rights, the judge invoked judicial immunity, arguing that being a judge protected him from liability for his blatantly unconstitutional actions.  

In our brief in this case, now before a federal appeals court, IJ explained that judicial immunity has never protected rogue judges who use their titles to abuse people with whom they disagree. True, the U.S. Supreme Court has recognized absolute immunity for judges, but only for traditional judicial activities, which the unlawful jailing of the children was not. IJ’s brief also highlights the historical flaws in the Supreme Court’s own precedents, which overestimated the extent of judicial immunity at English common law. Those precedents also ignored Congress’ intent to abolish judicial immunity altogether in suits against state court judges when it passed a major civil rights statute in the wake of the Civil War. 

Given the doctrine’s questionable historical pedigree, IJ is urging the court not to expand judicial immunity further. Judges are government officials. They should not be able to ignore the Constitution simply because they also wear a robe.

Learn more about what qualified immunity is here.