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April 17, 2009


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Christopher Roach

Call me crazy, but isn't there usually (a) some kind of immunity for criminal acts (b) based on good faith reliance on beliefs about the law for governmental actors? This is not exactly news in the Section 1983 context. Harlow v. Fitzgerald anyone?

Uzair Kayani

Note that Harlow is not a subjective standard. What an official believed or what he relied on does not matter. Rather, Harlow sets an objective standard: an official loses qualified immunity if he violates a clearly established constitutional or statutory right that he should reasonably have known of.

Whether a right is clearly established and whether people should know of it are objective questions, that is, they are questions that a court ought to be able to answer without any knowledge of the parties or the facts of a case. For example, if a reasonable official would know that he was violating someone's right by kidnapping her, then that official would not be covered by the Harlow immunity.

The immunity is objective because it is an immunity from suit rather than liability. Courts need an objective test in order to dismiss frivolous cases quickly. A subjective standard would require the court to engage in costly fact-finding; this would defeat the purpose of the immunity.


“Congress has not adopted this or any provision of the Model Penal Code. For that reason, it is quite possible that the CIA personnel who relied on them would have no statutory defense.”

In this context this reliance defense is providd by statute. Section 1004(a) of the Detainee Treatment Act provides that in a “criminal prosecution” against a CIA officer who conducted interrogations, “it shall be a defense that such officer . . . did not know that the [interrogation] practices were unlawful and a person of ordinary sense and understanding would not know the practices were unlawful. Good faith reliance on advice of counsel should be an important factor, among others, to consider in assessing whether a person of ordinary sense and understanding would have known the practices to be unlawful.”

In this respect, Obama’s announcement that he was not going to prosecute any of the CIA agents is really no revelation at all, it is just the proper use of prosecutorial discretion, recognizing that the CIA agents who acted in good-faith reliance on the DOJ legal opinions have a pretty clear statutory defense.

Christopher Roach

You are correct, but the clarity of prior law and existence of some reasonable confusion about its metes and bounds have always mattered under Section 1983. The test has always been objective but quite forgiving. For a non-lawyer, reliance on a government lawyer's interpretation of a statute should count for quite a bit. In other words, there might reasonably more immunity for lower level employees with less sophistication than there is for upper level employees who drafted the memos or ignored warnings or knew the law in greater detail, and there should be immunity for both when there is any significant gray area.

I also think the pardon power or prosecutorial discretion play an important role here. We don't want to end up like a banana republic where every election is a high stakes question of a great number of the losing party's officials go to jail on trumped up charges of one kind or another.

Richard McAdams

Qualified and absolute immunity are defenses against civil damages claims for governmental violation of constitutional rights, not criminal law defenses.

I appreciate MKS's quotation of the provision in the Detainee Treatment Act, but here Congress goes beyond the MPC approach in providing not just a defense for reliance on official misstatements of law, but a broad and general mistake of criminal law defense, which is a departure from the more ordinary principles of federal criminal law. Obama and Holder state the narrower and more established principle by exempting only those who relied on statements of law from the Department of Justice.

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