Suing Judges - Judicial Immunity
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Are you thinking about suing a judge? Before you do, read this. It is some case snippets that cover the basics on suing judges. For more information, research the issue.

Frank BARRETT, Plaintiff-Appellee, v. Nancy I. HARRINGTON, a/k/a Penny Harrington, Defendant-Appellant. No. 96-6207. United States Court of Appeals, Sixth Circuit. Argued Aug. 5, 1997. Decided Nov. 20, 1997.

Excerpt from page 1997 WL 721830 (6th Cir.(Tenn.)) (A) Letters to Prosecutors

The discrete issue presented here is whether a judge's instigation of a criminal investigation against a disgruntled litigant, taken to protect the integrity of the judicial system, is a "judicial act" and therefore entitled to absolute judicial immunity.

As noted above, the Supreme Court has formulated the two-prong functional test to determine whether an act is judicial.

The Two Prong test is:
1. was it the kind of act that a judge normally performs? and
2. did the parties deal with the judge in his judicial capacity?

The first prong of the functional approach asks whether the function is one "normally performed by a judge." Stump, 435 U.S. at 362. Clearly, the instigation of a criminal investigation by the filing of a complaint is not itself a paradigmatic judicial act, i.e., an act which occurs in the context of resolving disputes between two parties. Forrester, 484 U.S. at 227.

See commentary and final ruling: Stump v. Sparkman - The case that still leaves us stumped! Also see What Constitutes A Judicial Act For The Purposes Of Judicial Immunity PDF and Does the Two-Prong Test for Determining Applicability of the Discretionary Function Exception Provide Guidance to Lower Courts Sufficient to Avoid Judicial Partisanship? PDF

In the following cases, courts have found that the judges acted in their judicial capacity and were entitled to immunity:

Mireles v. Waco, 502 U.S. 9, 112 S.Ct. 286, 116 L.Ed.2d 9 (1991) (judge's alleged actions in directing police officers to bring attorney who was in the courthouse into his court were taken in judge's "judicial capacity" and, thus, judge was immune from S 1983 suit, even though judge allegedly directed officers to carry out order with excessive force);

Burns v. Reed, 500 U.S. 478, 492, 111 S.Ct. 1934, 1942, 114 L.Ed.2d 547 (1991) (issuance of a search warrant is unquestionably a judicial act);

Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978)(Indiana circuit court judge performed an act normally performed by judges in approving a mother's ex parte petition to have her 15 year old "somewhat retarded" daughter sterilized); See above for more info on Stump v Sparkam.

Sheppard v. Maxwell, 384 U.S. 333, 358, 86 S.Ct. 1507, 1520, 16 L.Ed.2d 600 (1966) (a judge acts in a judicial capacity when exercising control of the judge's courtroom);

Ireland v. Tunis, 113 F.3d 1435 (6th Cir.1997)(issuance of an arrest warrant was a judicial act);

Cameron v. Seitz, 38 F.3d 264, 271 (6th Cir.1994) (state probate court judge's actions of not taking probate court employee's recommendations on disposition of juvenile cases, and barring employee's admittance into court were judicial acts and therefore subject to immunity despite the employee's allegations that judge made his decisions out of hostility arising from the employee's marriage to judge's secretary);

Sparks v. Character and Fitness Committee of Kentucky, 859 F.2d 428 (6th Cir.1988), cert. denied, 489 U.S. 1011, 109 S.Ct. 1120, 103 L.Ed.2d 183 (1989) (actions taken by State Supreme Court, and Committee on Character and Fitness in denying application for admission to state bar were judicial acts);

Ashelman v. Pope, 793 F.2d 1072 (9th Cir.1986)(extending judicial immunity to a judge who allegedly conspired with a prosecutor to predetermine outcome of proceeding).

In the following cases, courts have found that the judges acted outside of their judicial capacity and were not entitled to immunity:

Forrester v. White, 484 U.S. 219, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988)(state court judge did not have absolute immunity from damages suit under S 1983 for his decision to demote and dismiss a probation officer);

Morrison v. Lipscomb, 877 F.2d 463 (6th Cir.1989) (state court judge was not entitled to judicial immunity in connection with order declaring moratorium on issuance of writs of restitution from December 15 through January 2, as judge was acting in administrative and not judicial capacity);

King v. Love, 766 F.2d 962, 968 (6th Cir.), cert. denied, 474 U.S. 971, 106 S.Ct. 351, 88 L.Ed.2d 320 (1985) (although setting bond on an arrest warrant is a judicial act, the act of deliberately misleading the police officer who was to execute the warrant about the identity of the person sought was non-judicial);

Sevier v. Turner, 742 F.2d 262 (6th Cir.1984)(juvenile court judge's initiation of criminal prosecution and civil contempt proceeding against father for child support in arrears constituted nonjudicial acts);

New Alaska Development Corporation v. Guetschow, 869 F.2d 1298 (9th Cir.1988) (receiver appointed by state court to manage business assets of an estate was entitled to absolute derivative judicial immunity, but receiver was not absolutely immune from allegations that he stole assets or slandered parties, as such alleged acts were not judicial);

Harper v. Merckle, 638 F.2d 848 (5th Cir.), cert. denied, 454 U.S. 816, 102 S.Ct. 93, 70 L.Ed.2d 85 (1981) (holding a contempt proceeding and ordering plaintiff incarcerated were not judicial acts where controversy that led to incarceration did not center around any matter pending before the judge, but around domestic problems of plaintiff former wife who worked at the courthouse);

Harris v. Harvey, 605 F.2d 330 (7th Cir.1979), cert. denied, 445 U.S. 938, 100 S.Ct. 1331, 63 L.Ed.2d 772 (1980) (allegedly repeated communications to the press and city officials which were critical of police lieutenant, and the improper instigation of criminal proceedings against the lieutenant by judge as part of a racial campaign to discredit lieutenant were not judicial acts).


Many times the reason or purpose for events in our life initially escapes us,
but I am certain we can find reason and/or purpose in everything that happens!

It takes a short time to learn to exercise power, but a lifetime to learn how to avoid abusing it.

We are no longer a country of laws, we are a country where laws are "creatively interpreted."

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