united-states official-immunity legislative-power civil-rights
When are government officials protected by legislative immunity?
<p>A legislator is being sued under <a href="https://www.law.cornell.edu/uscode/text/42/1983" rel="nofollow noreferrer">42 U.S.C. 1983</a> for violating a constituent's civil rights. The legislator wants to assert legislative immunity as a defense.</p>

<p>What is the test for determining whether his actions fall within the scope of the grant of immunity?</p>

<p><strong>EDIT:</strong> I already understand that <a href="https://supreme.justia.com/cases/federal/us/523/44/" rel="nofollow noreferrer">"absolute legislative immunity attaches to all actions taken in the sphere of legitimate legislative activity"</a>; my question is how we know whether an action is in that sphere. For the sake of example, imagine that Pat and Dan are neighbors who have always hated each other. Pat is elected the president of the school board. Pat wants to sue Dan for monetary damages based on the following actions:</p>

<ol>
<li><p>Voting to reduce the number of teachers at Pat Jr.'s school;</p></li>
<li><p>Defaming Pat in an e-mail to a principal. The message is sent and received using government e-mail addresses, but its content has no connection to school district business.</p></li>
<li><p>Refusing to let Pat Jr.'s Eagle Scout troop make a presentation to the school board.</p></li>
<li><p>Ordering the police to arrest Pat for loudly coughing "bullshit" when Dan says he treats everyone fairly.</p></li>
<li><p>Punching Pat in the parking lot after the meeting.</p></li>
</ol>

<p>Under generally applicable common-law principles, which of these claims should a court dismiss <em>on the basis of legislative immunity</em>, and what test should it use to decide which claims survive?</p>

<p>Only "legislative acts" give rise to legislative immunity.  Perhaps surprisingly, being a legislator is neither necessary nor sufficient for the privilege to apply.   A defendant would need to assert the act in question was essentially a <strong>legislative activity.</strong>   </p>

<p>Quoting from <a href="https://www.fjc.gov/sites/default/files/2014/Section-1983-Litigation-3D-FJC-Schwartz-2014.pdf" rel="nofollow noreferrer">the Federal Judicial Center's extensive paper on section 1983</a>:</p>

<blockquote>
  <p>State and local legislators enjoy absolute immunity for their legislative
  acts.  Under the functional approach to immunity, the critical issue is
  whether the official was engaged in legislative activity. The determination of an act’s legislative or executive character <em>“turns on the nature of the
  act, rather than on the motive or intent of the official performing it.”</em>
  Legislative action involves the formulation of policy, whereas executive action enforces and applies the policy in particular circumstances.  </p>
</blockquote>

<p>The primary case cited is <a href="https://supreme.justia.com/cases/federal/us/523/44/" rel="nofollow noreferrer">Bogan v. Scott-Harris, 523 U.S. 44, 49 (1998)</a>,  Bogan further cites <a href="https://supreme.justia.com/cases/federal/us/341/367/" rel="nofollow noreferrer">Tenney v. Brandhove, 341 U. S. 367, 372, 372-376</a> in clarifying questions of the defendant's intent or motive are irrelevant as long as the act is part of a legislative activity.   So proposing, drafting, voting or debating (for or against) a specific measure fall within the immunity, regardless of the claimed improper motive for doing them.</p>

<p>For example, in Bogan, Scott-Harris made arguments that closing of a government department was motivated by racial animus which violated her civil rights as the only employee in the department.   The high court found that closing the departmental was essentially a legislative activity regardless of claims about improper motive for the action.  </p>

<p><strong>Officials outside the legislative branch are entitled to legislative immunity when they perform legislative functions.</strong>  </p>

<p>Bogan also shows the privilege applied not only to the legislators, but the mayor (an executive), because his actions in drawing up a budget proposing the closing of the department, and his signing the action into law were of essentially parts of the legislative process.  </p>

<p>IMHO, the hypothetical examples now in the question, only act #1 seems to be making a policy decision similar to legislation activity.   </p>

<p><strong>Legislative Immunity</strong></p>

<p>I don't know where you are from, but in the U.S. legislators aren't immune from criminal arrests or civil lawsuits, so asserting legislative immunity means nothing there.</p>

<p>They can not be sued or arrested for things their job requires, but still can't commit a criminal action. <a href="https://www.nolo.com/dictionary/legislative-immunity-term.html" rel="nofollow noreferrer">https://www.nolo.com/dictionary/legislative-immunity-term.html</a></p>

<p>Some states have laws limiting questioning, in court, legislators about actions they took while serving, but that does not mean they can't be sued or arrested.
<a href="http://www.ncsl.org/bookstore/state-legislatures-magazine/yes-no-maybe-so-july-august-2016.aspx" rel="nofollow noreferrer">http://www.ncsl.org/bookstore/state-legislatures-magazine/yes-no-maybe-so-july-august-2016.aspx</a></p>

<p>If someone wanted to file a suit against a legislator, they could do so and would likely win if they were deserving. Several legislators have already been sued and arrested, so nothing is preventing that, if it is warranted in the case. </p>
