A legislator is being sued under 42 U.S.C. 1983 for violating a constituent's civil rights. The legislator wants to assert legislative immunity as a defense.

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

EDIT: I already understand that "absolute legislative immunity attaches to all actions taken in the sphere of legitimate legislative activity"; 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:

  1. Voting to reduce the number of teachers at Pat Jr.'s school;

  2. 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.

  3. Refusing to let Pat Jr.'s Eagle Scout troop make a presentation to the school board.

  4. Ordering the police to arrest Pat for loudly coughing "bullshit" when Dan says he treats everyone fairly.

  5. Punching Pat in the parking lot after the meeting.

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

  • @ndb484 This is an interesting question, but to answer it, we need more facts, such as: Where is this guy a legislator? Congress? State legislature? If a state, which one? Under what law is he claiming legislative immunity? What exactly did he do to violate § 1983? And so on. (Maybe you can cite a newspaper article?)
    – Just a guy
    Nov 22, 2019 at 18:56
  • Also, that law says "judicial officer" meaning a judge.
    – Putvi
    Nov 22, 2019 at 18:58
  • I know its an exception. I'm saying I took his question to mean he thought judicial officer meant legislator and he was therefore asking what privileges they had.
    – Putvi
    Nov 22, 2019 at 19:08
  • 1
    @Justaguy I'm less interested in figuring out whether any particular set of facts triggers legislative immunity, but rather what test a court would apply to whatever set of facts ends up it front of it. It's 1983, so it would have to be a state or local legislator. Looking for a common-law approach rather than any specific jurisdiction within the United States.
    – bdb484
    Nov 22, 2019 at 19:48
  • @bdb484 Got it! I will try to write up an answer. And "oops" on the state and local legislators. (Maybe that should be a "duh.") PS But if you can give us the facts without breaking confidence, etc, I'd be curious to hear them. Or would this be covered by "Oh, just another crazy 1983 case?"
    – Just a guy
    Nov 22, 2019 at 20:01

2 Answers 2


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 legislative activity.

Quoting from the Federal Judicial Center's extensive paper on section 1983:

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 “turns on the nature of the act, rather than on the motive or intent of the official performing it.” Legislative action involves the formulation of policy, whereas executive action enforces and applies the policy in particular circumstances.

The primary case cited is Bogan v. Scott-Harris, 523 U.S. 44, 49 (1998), Bogan further cites Tenney v. Brandhove, 341 U. S. 367, 372, 372-376 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.

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.

Officials outside the legislative branch are entitled to legislative immunity when they perform legislative functions.

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.

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

  • That only applies while they are in chambers or on their way. He is talking about a different thing.
    – Putvi
    Nov 22, 2019 at 19:12
  • 2
    I've completely rewritten the answer to be more specific to section 1983. Nov 22, 2019 at 20:23
  • This is getting closer to what I'm looking for. Is there any further elucidation of the the policy formulation/policy enforcement distinction?
    – bdb484
    Nov 22, 2019 at 21:09
  • 1
    There is quite a bit more in the .PDF file from the Federal Judaical Center, I encourage you to read it, starting at about page 141. fjc.gov/content/section-1983-litigation-third-edition Nov 22, 2019 at 21:52
  • That should help. Thanks. I've also supplemented my question to further clarify what I'm getting at.
    – bdb484
    Nov 23, 2019 at 4:12

Legislative Immunity

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.

They can not be sued or arrested for things their job requires, but still can't commit a criminal action. https://www.nolo.com/dictionary/legislative-immunity-term.html

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. http://www.ncsl.org/bookstore/state-legislatures-magazine/yes-no-maybe-so-july-august-2016.aspx

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.

  • This seems to ignore pretty clear statements from the Supreme Court that legislative immunity is a viable and robust defense to 1983 actions. See, e.g., Bogan v. Scott-Harris, 523 U.S. 44 (1998).
    – bdb484
    Nov 23, 2019 at 6:03

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