Who You Cannot Sue Under § 1983

If you put the wrong defendants in your complaint, the judge may dismiss part of your case before it really starts.

This article is about absolute immunity. Absolute immunity usually means the court may dismiss the claim without deciding whether what happened to you was wrong. The court just says that defendant cannot be sued for that act under Section 1983. Officers usually raise qualified immunity instead, which is a different defense.

So the goal here is practical: when you file, you want to include only defendants the law allows you to sue. That keeps your complaint focused on the claims the court will actually consider.

After reading this article, you should be able to:

identify the kinds of defendants who usually have absolute immunity
spot the main exceptions that may let you sue anyway
review your own defendant list and see who you should probably leave out

Pair this with how to name your defendants before you draft the complaint, and with the sample Section 1983 complaint for a false arrest case if you want to see the difference between defendants you can properly include and defendants you should leave out.

What the judge is going to ask

One of the first questions the judge is going to ask is:

Can this defendant be sued for this behavior at all?

That is why this issue matters so much. You may be completely right about what happened and still lose against a particular defendant because the law does not let you sue that person for that act.

What the defense will argue

If you sue someone who has absolute immunity, the defense will argue that this person cannot be sued for this kind of act.

The next question is what role that person was acting in when they did it. That is because absolute immunity usually protects certain roles, not every single thing a person does.

So the fight usually becomes:

was this a judicial act, meaning something a judge normally does, like ruling, sentencing, or issuing an order?
was this a prosecutorial act, meaning something a prosecutor normally does as a courtroom advocate, like filing charges or presenting the case?
was this legislative activity, meaning voting, debating, or drafting policy?
was this testimony in a judicial proceeding, meaning statements made as a witness in court or before a grand jury?

If the answer is yes, the claim against that defendant is usually over.

So your job is to look for the exceptions before you name that defendant. The main exceptions are:

a judge acting outside all jurisdiction, rather than simply making a bad or biased ruling
a prosecutor acting as an investigator or administrator, not as an advocate in court
a legislator acting outside the legislative role
a witness being sued for conduct outside the testimony itself, such as fabricating evidence before testifying

Government officials you usually cannot sue under § 1983

Judges have absolute judicial immunity

Judges have absolute immunity for acts performed in their role as judges. It doesn’t matter if the judge was biased, wrong, or even corrupt. If they were doing judge work, like ruling on motions, issuing orders, or presiding over your case, the judge will usually dismiss the claim against them under § 1983.

That rule comes from Pierson v. Ray, 386 U.S. 547 (1967). In real life, it means the judge can end that part of your case even if you say the ruling was malicious or wildly wrong, as long as the judge was still acting within the court’s general power.

What does “clear absence of all jurisdiction” mean? Almost nothing defeats it. A traffic court judge sentencing someone to death would be acting without jurisdiction. A family court judge issuing a criminal warrant might be. But a judge who makes a terrible, biased ruling within their general jurisdiction? Immune.

A common mistake: You might think a judge who conspired with police to railroad you can be sued. Usually, immunity still applies if the acts were performed in the judge’s judicial capacity.

What you can do instead: Appeal the decision. File a judicial conduct complaint with your state’s judicial disciplinary commission. Those options may feel limited, but they are usually the only channels available.

Prosecutors usually have absolute prosecutorial immunity

Prosecutors have absolute immunity for anything related to their advocacy function — deciding to prosecute, presenting evidence at trial, making arguments to the court, selecting charges.

In plain English, that usually means work a prosecutor does as the government’s lawyer in the case.

That rule comes from Imbler v. Pachtman, 424 U.S. 409 (1976). In your case, the practical point is that if your complaint is really about filing charges or handling the case in court, the judge will usually throw those claims out.

When you may be able to sue: Prosecutors can sometimes be sued when they act as investigators or administrators rather than advocates. If a prosecutor personally directed the police to conduct an illegal search, fabricated evidence before charges were filed, or made statements at a press conference, those acts may fall outside absolute immunity.

In plain English, an investigator helps build the facts of the case, and an administrator handles office or management tasks. Those roles are different from standing in court, deciding to file charges, or presenting the government’s case.

The line between “advocacy” and “investigation” is blurry, and courts usually give prosecutors the benefit of the doubt. But it’s a real distinction worth exploring if the prosecutor was actively involved in the investigation rather than just making charging decisions.

The practical trap: Most people filing without a lawyer who are angry at a prosecutor are angry about the decision to prosecute or how the case was handled in court — and those are precisely the acts that are absolutely immune. Save your energy for the officers who actually violated your rights.

Legislators have absolute immunity for legislative acts

Federal, state, and local legislators have absolute immunity for legislative acts like voting, debating, and drafting legislation.

This is called legislative immunity.

What’s covered: A city council member who votes for a policy that leads to police misconduct is immune for that vote. Even if the policy is unconstitutional.

When you may be able to sue: A council member who personally directs the police chief to target a specific person is acting in an executive role, not a legislative one. That kind of act may fall outside legislative immunity.

Witnesses cannot be sued for testimony

Witnesses who testify in judicial proceedings — including police officers testifying at trial or before a grand jury — have absolute immunity for their testimony, even if they lie.

Yes, even perjury is shielded by absolute immunity in the context of § 1983. The remedy for lying under oath is a criminal perjury prosecution, not a civil rights lawsuit.

When you may be able to sue: This immunity covers testimony itself. If an officer fabricated evidence before testifying, wrote a false report, planted evidence, or lied in a warrant affidavit, those investigative acts may fall outside testimonial immunity. The officer may still raise qualified immunity, but not absolute immunity for the testimony alone.

Grand jurors cannot be sued for indicting you

Grand jurors have absolute immunity for their actions as grand jurors. If you sue a grand jury member because the indictment was baseless, the judge will usually dismiss that claim right away.

Court clerks and similar officials often get clerk immunity tied to court work

Court clerks and similar officials usually get quasi-judicial immunity. In plain English, that means the judge will usually protect them when they were doing routine court-process work like filing documents, issuing summonses, or recording proceedings.

Who you can still sue in a Section 1983 case

Now that you know who’s off-limits, focus your energy on the defendants the law may actually let you sue:

Police officers (individual capacity) — They get qualified immunity, not absolute immunity. Qualified immunity can still block the claim, but it is not automatic the way absolute immunity is. See how to name your defendants.
The municipality — Cities and counties have no immunity at all under Monell. If you can show a policy or custom caused the violation, the city pays. See Monell: What a Monell Claim Is and How to Plead It before assuming the city belongs in the complaint.
Supervisors — Chiefs, sergeants, and commanders can be sued if you can show their personal involvement or deliberate indifference.
Prosecutors acting as investigators — If they stepped outside their advocacy role.
Private actors — If they conspired with state actors (§ 1985(3)) or acted under color of law.

What to look for in your own case

Before you name someone, ask:

what exactly did this person do?
what role was this person acting in when they did it: judge, prosecutor, legislator, witness, or something else?
is my anger directed at the person who made the decision, or at the person who actually violated my rights on the ground?
if I leave this defendant in, am I giving the court an easy reason to dismiss part of the case right away?

That last question matters. The wrong defendant can give the judge an easy reason to dismiss part of your case right away and waste your time.

The bottom line on absolute immunity under § 1983

Before you file, go through your defendant list and ask: does this person have absolute immunity for what I am suing them for? If the answer is yes, leave them out. Every defendant you include who gets dismissed on immunity grounds makes your case look weaker and wastes the court’s time and yours.

Name the right defendants. Sue the people and entities the law may actually let you pursue. That is where your case lives or dies.

Check Your Understanding

You believe the judge in your criminal case was biased, ignored your motions, and ruled against you at every turn. Based on this article, does that sound like judicial conduct that absolute immunity will usually protect, or does it sound like an exception?

Show answer
Judicial conduct like ruling on motions and running the case will usually be protected by absolute immunity. The bias may matter for appeal or judicial-discipline purposes, but those facts usually do not create a Section 1983 damages claim against the judge.
A prosecutor filed charges against you, argued the case in court, and withheld evidence. Based on this article, which of those acts are most likely to be treated as advocacy that absolute immunity usually protects?

Show answer
Filing charges and arguing the case in court are the clearest advocacy acts. Withholding evidence is also often treated as part of the prosecutor's role as the government's lawyer, which is one reason prosecutorial immunity is so strong.
Look at your own draft defendant list. Which person on it is most likely to have absolute immunity, and what specific act makes you think that?

Show answer
A strong answer would identify one person and one specific act, such as a judge ruling, a prosecutor filing charges, or a witness testifying. If you cannot name the act clearly, you probably need to slow down before naming that defendant.