Avoiding Personal Liability

We live in a society with diverse views. In and of itself, this is a positive. However, we also inhabit a litigation-charged society that is often inclined to go to court when unfavorable outcomes and events occur. This is particularly important for local officials who may face a claim for personal liability when a private party alleges that a decision or action violates certain rights protected under federal law. Or a person may claim to have been harmed by the negligent wrongdoing of an official under state law and seek personal liability for money damages. When such claims arise, local officials generally want to know whether “governmental immunity” will provide a shield from personal financial exposure.

There are doctrines of governmental immunity under both federal and state law that may provide complete insulation of an official from personal liability depending on the facts of the particular case.

Both federal and state law include doctrines of governmental immunity that may provide insulation. Depending on the facts of the particular case, a public official may be completely immune from personal liability. For claims arising under federal law, the essence of the immunity rules apply throughout the country. Immunity from claims arising under state law will vary from state to state.

In many cases, local governments provide policies of liability insurance that may provide coverage for some or all of a claim made against an official. Of course, having coverage is not a certainty, and the mere probability of coverage (especially partial coverage) typically will not provide adequate comfort for an official who has been served with a new lawsuit. Regardless, securing a fundamental understanding of the subject of immunity will permit local officials to work with the local government attorney in a more meaningful way, and perhaps to sleep a little easier at night.

The goal here is to provide local officials with some of the basic deciding factors that will allow or deny use of the governmental immunity “shield” from federal and state liability in a given case. It is important to keep in mind that the facts and circumstances underlying each individual claim will ultimately dictate whether government immunity will apply. It would not be practical to attempt an explanation of each of the separate rules the several states have developed on this subject. However, there is a sufficient common conceptual core of these rules to allow this analysis to be instructive.

The idea of government immunity harkens back to the old common law rule that “the king can do no wrong.” Of course, in our system of government, the federal and state governments take the place of kings and queens (with slightly less authority over our lives!). Under the old English common law doctrine, immunity transferred from the royals to all levels of government and government officials. This same full-blanket coverage was recognized for some time in the United States, but in recent times it has begun to unravel.

For local government officials, federal liability issues most frequently arise under the post-civil war federal civil rights laws enacted in 1871, and particularly 42 U.S.C. § 1983- As a civil-rights law, § 1983 makes local officials personally liable for action by the local government that deprives rights, privileges or immunities secured by federal constitution and law.} This needs some unpacking. Here, “action by local government” means official implementation or execution of a policy, ordinance, regulation, or decision. And most importantly for the sanity of modern officials, the deprivations of rights referred to are only those deprivations that are unconstitutional or unlawful at the federal level. § 1983 was created to force unwilling state and local governments to obey the new federal recognition of full civil rights for all persons, including the recently freed slaves.

As set out below, § 1983 allows a party to seek money damage relief where rights are deprived under “color of law,” meaning any situation where a party asserts that the deprivation of rights has occurred under a law, local ordinance or custom. It reads, in part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress

Again, the only wrongdoing that creates liability under § 1983 is deprivation of a right or a claim of entitlement that is protected by the Constitution or federal law. Moreover, the liability is purely individual — a public official supervising others is not liable under § 1983 for the actions of those being supervised.

While the focus of this chapter is on immunity from liability for the individual public official, a related subject is the liability of the government body itself. In cases arising under § 1983, neither Congress nor the Supreme Court has seen fit to provide local governments themselves with any immunity — even where harm is caused only incidentally by officials acting in good faith.2 This means that where this chapter discusses immunity under § 1983, it is purely a question of protecting individual officials from being personally liable. Where a deprivation occurs under § 1983, the local government body may still be on the hook to pay damages.

For state law purposes, an early erosion of the immunity shield appeared under state law when it was decided that immunity should not apply in cases in which a local government is acting based on a profit-making motive. Instead, state immunity would provide protection from liability only for harm caused in connection with the performance of a “governmental function.” More recently, courts and legislatures also began to reject the assumption that government should always be free of tort liability — even during performance of governmental functions. Modernly, nearly all states have carved out their own unique, enumerated list of non-immune activities, such as the negligent operation of motor vehicles (where insurance is likely to be available). State constitution and law spell out the full scope and circumstances in which immunity for local governments and their public officials will apply.

The examination below will start with a more detailed analysis of immunity under federal law, and then turn to state law. The rules at both the federal and state levels have sought to “strike a proper balance between protecting decisions made by government agencies as well as elected and appointed government officials and providing redress for injuries caused by those decisions.”3

A. Federal Law: Absolute and Qualified


Absolute Immunity under Federal Law

Liability of local officials that may be subject to immunity arises under federal law chiefly in context of civil rights lawsuits such as those filed under 42 U.S.C. § 1983- There are rules which, depending on the facts of the particular case, may provide either “absolute” or “qualified” immunity.

Absolute immunity under § 1983 has been granted to legislators, judges, and prosecutors.

Absolute “legislator” immunity applies to local legislators acting within the legitimate sphere of legislative activity. For example, enacting an ordinance is a legislative act for these purposes.

The absolute immunity granted to “judges” applies when a person has acted within the judicial scope of authority. Agencies can be “functionally equivalent” to judges, depending on the function performed. For example, a county construction board of appeals has been found to meet this test after confirming the adversary nature of the process used in their proceedings.

For local officials, liability (and potential immunity) under federal law is an issue that arises chiefly in context of civil rights lawsuits, such as those filed under 42 U.S.C., § 1983, although there are other federal statutes which are relevant. There are rules which, depending on the facts of the particular case, may provide either “absolute” or “qualified” immunity.

1. Absolute Immunity for Officials

Absolute immunity under § 1983 has been granted to judges, legislators, and prosecutors. When absolute immunity applies, there will be no personal liability on the part of the official.

Absolute “legislative” immunity applies to local legislators acting within the legitimate “sphere” of legislative activity. Whether a local official is acting within that legislative sphere is not determined based on the motive or intent of the action, or on the name or predominant function of the person or body taking the action, but only on the legislative nature of the act itself. For example, enacting an ordinance is a legislative act, so legislative immunity should apply.4 But applying or administering an ordinance is outside the legislative sphere and so not protected by legislative immunity — even if done by a government body with a title that sounds very “legislative” or that performs some legislative functions.

For a specific example, consider a final site plan approval, which is an administrative act, not a legislative one. If an ordinance delegates the administrative act of final site plan approval to the community’s legislative body, the body is acting within the administrative sphere when approving or denying the site plan — it is the act that matters, not the legislative title of the body. Because the officials on the legislative body are acting outside the legislative sphere while approving or denying the site plan, they are unprotected by legislative immunity while taking that action.5 (As discussed below, federal qualified immunity might apply depending on the facts and circumstances).6 By the same reasoning, a regional planning commission, which is a non-legislative body, may have certain limited powers of a legislative nature. Individuals serving on the commission may benefit from absolute legislative immunity while exercising those limited legislative powers.

Tire absolute immunity granted to judges applies when they have acted within the judicial scope of authority. Such immunity has also been extended to officials and agencies who act in a “quasi-judicial” capacity — that is, while conducting hearings similar to court proceedings. The Supreme Court has observed that adjudication by agencies can be “functionally equivalent” to adjudication by judges.8 Again, the ultimate analysis would explore the function performed, rather than the title of the position held. A reviewing court would want to know whether decisions are made in a process similar to a court proceeding, where two adversaries are involved, witnesses are questioned, and the official or body then determines which side should prevail. For example, a New Jersey federal district court followed this line of reasoning to find the members of a county construction board of appeals absolutely immune from personal liability due to the adversarial nature of their review process.9

What about the zoning boards of appeals, which states frequently recognize as quasi-judicial bodies? While the Supreme Court appears not to have weighed in on this precise issue, judicial immunity for ZBA members would presumably depend on such things as whether similar bodies had sovereign immunity under traditional common law in the 19th century, when § 1983 was enacted, and whether the nature of the decision-making process could be characterized as being adversarial, like the proceedings held in court. The more the process moves away from being purely “administrative” and instead resembles an adversarial court proceeding, the stronger the argument for judicial immunity.

2. Qualified Immunity for Officials

Qualified Immunity under Federal Law

The Supreme Court has observed that: “The doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known ...”

Qualified immunity balances two important interests — the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.

When public officials are sued personally under § 1983 (for example, as Janet Smith, rather than as City Mayor) they may be in a position to assert qualified immunity. (As always, the availability of immunity will depend on the underlying facts and circumstances). If successfully asserted, qualified immunity will prevent personal liability for monetary damages.

In 2009, Justice Alito wrote an opinion for a unanimous Supreme Court, stating the rule of qualified immunity for officials:

The doctrine of qualified immunity protects government officials “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 73 L.Ed.2d 396 (1982). Qualified immunity balances two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction,, and liability when they perform their duties reasonably.10

When an official acts in a way that violates a rule that has been clearly established, qualified immunity probably will not apply. This includes any rule that the official actually knew about or that a reasonable person should have known about. Where qualified immunity can be available is in situations where there was no clear rule against the official’s behavior, or where there was no reasonable way for the official to know that the action taken was against the rules. In legal terms, qualified immunity operates to ensure that, before they may be subjected to suit for their conduct, officials must be on notice that the conduct would be unlawful.11

The Court offered this further clarification in 2017:

Qualified immunity attaches when an official’s conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. . . . for a right to be clearly established, [the rule on] the statutory or constitutional question [must be] beyond debate.”12

In summary, when a § 1983 case is filed against a public official who raises qualified immunity as a shield against personal money damages, the plaintiff bringing the case must demonstrate two things in order to avoid qualified immunity. First, the plaintiff must show that there has been a violation of rights protected under federal constitution or by federal law. Second, the plaintiff must show that the official clearly knew (or clearly should have known) at the time the action was taken that it would be a violation of those rights.

B. State Law: Liability Allowed under Exceptions to Governmental Immunity

State Government Immunity

State constitutions and law often broadly establish the general rule that officials are immune from liability, but then specify particular circumstances in which officials may be liable, that is, state law will establish specific exceptions to immunity are created.

Three common circumstances in which negligence cases are permitted are: (1) where public buildings (or other specified public places) have been neglected to the point of becoming unsafe; (2) where government personnel have operated motor vehicles negligently during the course of employment; and (3) where neglect has caused a street, highway or sidewalk to fall into an unsafe or defective condition.

Under state law, governmental immunity for public officials varies from state to state, based on the treatment provided in the states constitution and law. As noted above, while old common law rules dictated that “the king can do no wrong,” the modern rule in most states no longer springs directly from tradition. Rather, nearly all states begin by broadly proclaiming governmental immunity as a general principle, but then specify various exceptions to immunity. Under the specific circumstances named in each exception established by a state, governmental immunity is waived, meaning that liability is permitted based on harm caused by a public official’s negligent actions.

Three circumstances (among many others) in which negligence cases are commonly permitted are: (1) where public buildings (or other specified public places) have been neglected to the point of becoming unsafe; (2) where government personnel have operated motor vehicles negligently during the course of employment; and (3) where neglect has caused a street, highway or sidewalk to fall into an unsafe or defective condition.

Consider this example. In the State of Wyoming, the legislature has provided that “a governmental entity and its public employees while acting within the scope of duties are granted immunity from liability for any tort except as provided by WS. § 1—39—105 through § 1—39—112.”13 This means that, in general, Wyoming public officials have the benefit of governmental immunity. But under the specific circumstances named in §§ 105 through 112, immunity is waived, and there may be liability for torts. Unless a claim falls within one of these exceptions stated in WS. § 1—39—105 through § 1—39—112, the claim is blocked by immunity and may not be asserted in court.

Examining the first exception, stated in § 105, Wyoming has provided that “A governmental entity is liable for damages resulting from bodily injury, wrongful death or property damage caused by the negligence of public employees while acting within the scope of their duties in the operation of any motor vehicle, aircraft or watercraft.”14 This first exception waives immunity for harm caused by officials while negligently operating vehicles. A close reading reveals that this particular waiver makes the governmental entity itself responsible, while the individual official who commits the negligent act remains immune from any personal liability.

From the standpoint of the party who suffers personal injury or property damage due to the negligence of a public official, government immunity is a denial of recovery that would have been available had the official instead been employed by a private company. On the other hand, unlike private employees, the theory is that public officials are servants of the public, and the public at large has a strong interest in protecting the freedom of public officials to confidently engage in their duties:

The doctrine [of governmental immunity] represents a balance between the need of public officers to perform their functions freely and an aggrieved party’s right to seek redress. Government decision makers exercising discretionary functions are immune from suit because the courts should not chill legislative discretion in policy formation by imposing tort liability, nor should government employees be stripped of their independence of action or intimidated by the fear of personal liability and vexatious suits. Thus, immunity serves two policies: It shields those governmental acts and decisions impacting on large numbers of people in a myriad of unforeseen ways from individual and class actions, the continual threat of which would make public administration all but impossible, and it preserves the autonomy of coordinate branches of government.15

When a case is filed as a result of harm or injury caused by the negligence of a public official, with important exceptions (including the three noted above), states have provided immunity for ordinary negligence. However, to the extent that wrongdoing extends beyond negligence, and can be characterized as being within the realm of an intentional tort, most states permit the victim to recover. Similarly, if the public official has acted with gross negligence, immunity will rarely, if ever, apply. “Gross” negligence is extreme behavior involving a knowing violation. Some states exclude from immunity action taken with “reckless disregard” for the legality or potential consequences — sometimes called “wilful and wanton” conduct.16

The theme unifying most state law exceptions from immunity is this “crossing of the line” from sloppy mistake (negligence) over to something more sinister. It would be difficult to argue, for example, that a balancing of public interests favors sheltering an official from personal liability for an assault and battery simply because the perpetrator was a government employee.

C. Last Words

In the formation of this country, a monumental decision was made to omit “the Royals” from involvement in the government structure. Nonetheless, the benefit of total immunity for government and its officials — which had historically been enjoyed by the Royals — was transferred to the new system, where it endured for some time. Today, we operate with two separate arrangements, one federal and one state. Immunity in the federal system applies to civil rights claims made against officials under federal constitution or law. In the state system, each of the respective states has maintained broad immunity for officials while carving out specific types of claims for which liability may apply — predominantly based on the negligence of officials, and especially in those instances where insurance coverage might be available. It is no secret that members of our society seem ever more willing to rely on courts to sort out their differences. So, those offering their time as public officials have good reason to be interested in identifying those circumstances in which they could be held personally liable for actions taken and decisions made while performing their official duties.

While it would be a false comfort to assure officials that they will be totally insulated from liability in all cases, it can be extremely beneficial simply to gain a working knowledge of those circumstances in which there may be liability. To that end, this chapter has attempted to plant a fundamental understanding of the nature ofgovernmental immunity in the United States, and the types of circumstances in which its protection may apply.

D. Now on to the Local Story

If this chapter has invigorated your appetite for practical legal guidance, you can continue the story by exploring the law applicable to your own particular form of local government, and the law of your particular state. Suggested storytellers include both your local government attorney and your state’s local government association, which offers training for community officials. Your local story might begin with responses to these questions:

1. Does our local government carry liability coverage for the acts and negligence of officials in the performance of their duties? If so:

a. Under what circumstances will coverage be provided or denied?

b. What is the amount of coverage?

c. Would an official be required to pay a deductible, or pay for legal representation?

  • 2. Has the state legislature provided by law for broad governmental immunity for the ordinary negligence of local government officials, subject to stated exceptions? If so, what are the specific exceptions where personal liability might apply? If not, under what circumstances would local officials enjoy governmental immunity for ordinary negligence?
  • 3- Has the legislature permitted liability on the part of local officials for:

a. Wrongful intentional torts?

b. Actions taken with gross negligence?

c. Actions taken with reckless disregard?


  • 1. Monell v. New York City Department of Social Services, 436 U.S. 658 (1978). Liability may also arise if an official did not affirmatively act in a way that violated rights, but acted with “deliberate indifference” so as to violate rights.
  • 2. Owen v. City of Independence, 445 U.S. 622 (1980).
  • 3. D.L. Mandelker, et al., State and Local Government in a Federal System, 7th ed., p 658, LexisNexis (2010).
  • 4. Bogan v. Scott-Harris, 523 U.S. 44 (1998).
  • 5. Scottv. Greenville County, 716 F.2d 1409, 1422 (4th Cir, 1983).
  • 6. Haskell v. Washington Township, 864 F2d 1266 (6th Cir, 1988).
  • 7- Lake County Estates, Inc v. Tahoe Regional Planning Agency, 440 U.S. 391 (1979).
  • 8. Butz v. Economou, 438 U.S. 478, 513 (1978). (federal hearing examiner or administrative law judge).
  • 9- Akins v. Deptford Township, 813 F. Supp. 1098, 1102 (1993).
  • 10. Pearson v. Callahan, 555 U.S. 223, 231 (2009).
  • 11. Id. at 244.
  • 12. White v. Pauly, 137 S. Ct. 548, 551-552, 196 L.Ed.2d 463 (2017). Ute cases

also note that, even if the law was clearly established, the public official may attempt to prove that qualified immunity should nonetheless apply: “Usually, if the law was clearly established at the time of the relevant events, the qualified immunity defense will fail. Harlow v. Fitzgerald, 457 U.S. 800, 818-19, 102

S. Ct. T7TJ, 73 L.Ed.2d 396 (1982). “Nevertheless, if the official pleading the defense claims extraordinary circumstances and can prove that he neither knew nor should have known of the relevant legal standard, the defense should be sustained.” Id. at 819, 102 S. Ct. 2727. Exceptional circumstances which may render an official’s conduct objectively reasonable and therefore justify qualified immunity include reliance on a state statute or regulation, Roska, 328 F.3d at 1248, 1251, and reliance on the advice of legal counsel, V-l Oil Co. v. Wyo. Dept of Envtl. Quality, 902 F.2d 1482, 1488 (10th Cir. 1990). It is the defendants burden to claim such extraordinary circumstances and prove that his conduct was objectively reasonable.” Mimics, Inc. v. Village of Angel Fire, 394 F.3d 836, 842 (10th Cir. 2005). However, a very recent case decided by the Supreme Court provides an insight on when an official “should know” that actions violate constitutional rights even in the absence of a clear law or court decision. In Taylor v. Riojas, 592 U.S.___, Case No. 19-1261, decided

November 2, 2020, a set of extreme facts relating to the conditions a prisoner was subjected to led to the conclusion that, even in the absence of “clearly established” law, qualified immunity did not apply.

  • 13- W.S. §1-39-104.
  • 14. W.S. § 1-39-105.
  • 15- 57 Am. Jur. 2d Municipal, etc., Tort Liability § 2, Public Policy (accessed in 2020).
  • 16. City of Jackson v. Gardner, 108 So. 3d 927 (Miss. 2013).
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