Government officials in the United States enjoy broad immunity from personal and criminal liability for "official" actions.

However, even the sitting U.S. President is not immune to being tried for crimes committed "unofficially". Yet I can imagine an official making a colorable argument that any action was performed in an "official" capacity – especially when that official is the government's chief executive. Take an extreme hypothetical: The President murders someone in cold blood. Rather than evade detection for the crime, and rather than raising traditional defenses at trial, he simply declares, "I killed that person in my official capacity." After all, the President orders extra-judicial killings all the time.

Take the hypothetical down the line to beat police officers, who (as a whole) often kill people in their official capacity, and who claim they are "never off-duty."

What laws determine how claims of immunity for "acting in official capacity" should be adjudicated?

  • I do not think it is an issue of laws but of criterium about the applicability of law. An officer may have the right (or even duty) to kill someone that is a big security risk, but that right does not apply if they kill someone who is just walking by. I.e. there are no two laws but only a decission if the act was part/consequence of the official duties of the officer.
    – SJuan76
    Feb 9, 2017 at 18:03
  • @SJuan76 - Right, this is probably just a question of process. Conceptually is "immunity" just a defense to a criminal charge that is subject to trial like any other defense? Or is "immunity" a special case that prevents a trial under the rules of criminal procedure?
    – feetwet
    Feb 9, 2017 at 18:13
  • Immunity is a defense, but it is a defense that is almost always raised before trial. If it hinges on a close factual issue, however, a jury could resolve that question.
    – ohwilleke
    Feb 9, 2017 at 20:27

2 Answers 2


There are two kinds of immunity: absolute and qualified.

Absolute immunity is limited to the official discretionary acts of judges, prosecutors in the litigation process (but not in the investigatory process) and the President. And, in the cases of judges and prosecutors this is only immunity from civil liability and not criminal liability.

Thus, for judges the scope of absolute immunity extends to legal rulings and conduct related to being a judge in a courtroom. In the case of a prosecutor, it pertains to litigation conduct (but not conduct physically dealing with a defendant or investigating a crime). This is usually an open and shut question which can be determined on the face of the legal complaint against the official.

Only the President has relatively broad kinds of activities covered and his saying he is immune doesn't mean that a judge trying a case will agree with him. If he's murdering his wife, no judge will believe that he's acting in his official capacity to do so.

Other government officials generally have only "qualified immunity" which means that they have liability if they intentionally violate clearly established law, which basically means that there is a binding judicial precedent governing the facts and circumstances at issue.

  • So "absolute immunity" is practically nothing more than grounds for dismissal of a complaint, which is heard and considered by a court just like any other motion pursuant to a criminal complaint?
    – feetwet
    Feb 9, 2017 at 20:12
  • 1
    Indeed, "absolute immunity" for judges and prosecutors is only immunity from civil liability and not from criminal liability. To raise immunity one usually files a motion to dismiss but unlike most motions to dismiss, if there are factually issues that need to be clarified those are resolved in an immediate evidentiary hearing and a denial of a claim of immunity is subject to immediate appeal.
    – ohwilleke
    Feb 9, 2017 at 20:16

If the prosecution believed that the act wasn't in an official capacity and the defence believed it was then that is a fact that the court would need to determine.

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