Qualified immunity and governmental immunity: two different doctrines that decide who can be sued and for what
I am Mitchell Bisson, a Grand Rapids civil rights lawyer. I have litigated for over 15 years. This page explains the immunity defenses that officers, cities, counties and the State raise when someone sues over a rights violation in Michigan: federal qualified immunity, the limits on suing governments under section 1983, absolute immunity, and Michigan governmental immunity for state-law claims. I represent the person bringing the claim. An immunity defense is often raised first and decided early, so I plan a case around it from the start, and I tell you where a claim is weak. I do not promise outcomes.
The short answer. Qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Pearson v. Callahan, 555 U.S. 223, 231 (2009). A municipality may not assert the good faith of its officers as a defense to liability under section 1983, Owen v. City of Independence, 445 U.S. 622, 638 (1980), but it is not liable on a respondeat superior theory merely because it employs an officer. Monell v. Department of Social Services, 436 U.S. 658, 691 (1978). Neither a State nor its officials acting in their official capacities are “persons” under section 1983. Will v. Michigan Department of State Police, 491 U.S. 58, 71 (1989). Michigan’s governmental tort liability act makes a governmental agency immune from tort liability when it is engaged in a governmental function, except as the act otherwise provides. MCL 691.1407(1). Nothing here predicts how your claim will end.
People use the word immunity for several separate rules. Some protect an individual officer from a damages judgment. Some limit when a city, county or the State can be made to pay. Michigan adds its own statute for state-law tort claims. Each rule has different elements and a different burden, and each affects which defendants I name and which claims I plead.
Michigan immunity defenses at a glance
This table summarizes the main rules. Which of them applies depends on who the defendant is, what the defendant did, and whether the claim arises under federal law or Michigan law.
| Defense | Who it protects | What it requires | Authority |
|---|---|---|---|
| Federal qualified immunity | Individual officials sued for damages | Shielded from liability for civil damages unless the conduct violates clearly established statutory or constitutional rights of which a reasonable person would have known | Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Pearson v. Callahan, 555 U.S. 223, 231 (2009) |
| Local government liability (section 1983) | Cities, counties and other local governments | No qualified immunity and no good faith defense; liability for the government’s own policy or custom, not for employing the officer | Owen v. City of Independence, 445 U.S. 622, 638 (1980); Monell v. Department of Social Services, 436 U.S. 658, 691 (1978) |
| State and state officials | The State, and state officials sued in their official capacities | Not “persons” under section 1983 for damages; an official sued in an official capacity for injunctive relief is a person | Will v. Michigan Department of State Police, 491 U.S. 58, 70-71 (1989) |
| Absolute immunity | Prosecutors initiating a prosecution and presenting the State’s case | Depends on the function the person performed, not the title | Imbler v. Pachtman, 424 U.S. 409, 431 (1976); Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993) |
| Michigan agency immunity | State and local governmental agencies | Immune from tort liability when engaged in the exercise or discharge of a governmental function, except as the act otherwise provides | MCL 691.1407(1); MCL 691.1401(b) |
| Michigan employee immunity (negligence) | Officers and employees of a governmental agency | Immune if within the scope of authority, the agency is engaged in a governmental function, and the conduct is not gross negligence that is the proximate cause of the injury | MCL 691.1407(2), (8)(a); Robinson v. City of Detroit, 462 Mich. 439, 446 (2000) |
| Michigan employee immunity (intentional torts) | Officers and employees sued for intentional torts | The employee must raise and prove it: scope of authority, good faith, and discretionary rather than ministerial acts | MCL 691.1407(3); Odom v. Wayne County, 482 Mich. 459, 479-80 (2008) |
| Notice of a claim against the State | Claims against the State and its departments and agencies | A written claim or notice filed with the clerk of the court of claims within 1 year after the claim accrued; for property damage or personal injuries, within 6 months after the event | MCL 600.6431(1), (4) |
Qualified immunity in a federal civil rights claim
Qualified immunity is a defense for individual officials who are sued for money damages. The Supreme Court described its reach in Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982): government officials performing discretionary functions are generally shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. The question is whether the right was clearly established when the official acted.
A court applying the doctrine has two questions: whether the facts show a violation of a constitutional right, and whether the right was clearly established. The Supreme Court held in Pearson v. Callahan, 555 U.S. 223, 236 (2009) that the judges of the district courts and the courts of appeals should be permitted to exercise their sound discretion in deciding which of the two prongs should be addressed first in light of the circumstances in the particular case. I build the record for both questions.
The clearly established question is where most of the argument happens. The Supreme Court has said that it does not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate. Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). In the Sixth Circuit, which includes Michigan, the court asks whether a right is clearly established by looking first to decisions of the Supreme Court, then to decisions of that court and other courts within the circuit, and finally to decisions of other circuits. Baker v. City of Hamilton, 471 F.3d 601, 606 (6th Cir. 2006). For that reason, I research the case law for your facts before filing.
What qualified immunity does not do
Qualified immunity does not protect a city or a county. The Supreme Court held in Owen v. City of Independence, 445 U.S. 622, 638 (1980) that a municipality may not assert the good faith of its officers or agents as a defense to liability under section 1983. A claim against the local government stands or falls on different rules, which I explain below.
It also does not turn a factual dispute into a legal ruling. The Supreme Court has said that, under either prong of the analysis, courts may not resolve genuine disputes of fact in favor of the party seeking summary judgment. Tolan v. Cotton, 572 U.S. 650, 656 (2014). When the officers and the person they arrested tell different stories, that dispute is for trial and not for a motion. Video and body camera footage are therefore the first things I ask about.
When an officer can appeal a denial right away
Qualified immunity gets its own appeal route. The Supreme Court held in Mitchell v. Forsyth, 472 U.S. 511, 530 (1985) that a district court’s denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable final decision. The Court limited that rule in Johnson v. Jones, 515 U.S. 304, 320 (1995), holding that a defendant entitled to invoke a qualified immunity defense may not appeal a summary judgment order insofar as that order determines whether or not the pretrial record sets forth a genuine issue of fact for trial.
A case can therefore pause while the officer appeals a legal question. State-law claims in a Michigan court have a parallel rule: an order denying governmental immunity to a governmental party, including a governmental agency, official or employee, under MCR 2.116(C)(7), or an order denying summary disposition under MCR 2.116(C)(10) based on a claim of governmental immunity, is within the definition of a final order. MCR 7.202(6)(a)(v). An automatic stay under MCR 2.614(D) operates to stay any and all proceedings in a cause in which a party has appealed a trial court’s denial of the party’s claim of governmental immunity. MCR 7.209(A)(1).
Suing the city or county: municipal liability under section 1983
A local government is not an insurer for every officer it employs. The Supreme Court held in Monell v. Department of Social Services, 436 U.S. 658, 691 (1978) that a municipality cannot be held liable under section 1983 on a respondeat superior theory. The claim has to rest on the government’s own policy or custom. The Sixth Circuit has described four ways a plaintiff can show that: the municipality’s legislative enactments or official agency policies; actions taken by officials with final decision-making authority; a policy of inadequate training or supervision; or a custom of tolerance or acquiescence of federal rights violations. Thomas v. City of Chattanooga, 398 F.3d 426, 429 (6th Cir. 2005).
The Supreme Court addressed the final decision-maker route in Pembaur v. City of Cincinnati, 475 U.S. 469, 483-84 (1986), holding that municipal liability under section 1983 attaches where, and only where, a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question. I check early who holds final policy authority on the subject of the case.
A failure to train claim is demanding. The Supreme Court held in City of Canton v. Harris, 489 U.S. 378, 388 (1989) that the inadequacy of police training may serve as the basis for section 1983 liability only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact. In Connick v. Thompson, 563 U.S. 51 (2011) the Court said that a pattern of similar constitutional violations by untrained employees is ordinarily necessary to demonstrate deliberate indifference for purposes of failure to train. I therefore ask whether other people made complaints or were injured in similar ways.
Suing the sheriff, the chief or a supervisor
A supervisor’s title is not enough. The Supreme Court has said that government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior. Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). In the Sixth Circuit a plaintiff must show, at a minimum, that the official at least implicitly authorized, approved or knowingly acquiesced in the unconstitutional conduct of the offending officers. Heyerman v. County of Calhoun, 680 F.3d 642, 647 (6th Cir. 2012). I look for the supervisor’s own acts.
The capacity in which an official is sued matters as well: official-capacity suits generally represent only another way of pleading an action against an entity of which an officer is an agent. Kentucky v. Graham, 473 U.S. 159, 165 (1985).
The State and state officials
The Supreme Court held in Will v. Michigan Department of State Police, 491 U.S. 58, 71 (1989), a case from Michigan, that neither a State nor its officials acting in their official capacities are persons under section 1983. The Court added that a state official in an official capacity, when sued for injunctive relief, would be a person under section 1983 because official-capacity actions for prospective relief are not treated as actions against the State. Will, 491 U.S. at 71 n.10.
Absolute immunity
Some officials have absolute immunity for certain functions. The Supreme Court held in Imbler v. Pachtman, 424 U.S. 409, 431 (1976) that in initiating a prosecution and in presenting the State’s case, the prosecutor is immune from a civil suit for damages under section 1983. The Court later explained that a prosecutor’s administrative duties and those investigatory functions that do not relate to an advocate’s preparation for the initiation of a prosecution or for judicial proceedings are not entitled to absolute immunity. Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993). I read the file for what a person actually did and when.
Michigan governmental immunity for state-law claims
Michigan’s governmental tort liability act sets the rules for state-law tort claims against government. Except as otherwise provided in the act, a governmental agency is immune from tort liability if it is engaged in the exercise or discharge of a governmental function. MCL 691.1407(1). The act defines a governmental function as an activity that is expressly or impliedly mandated or authorized by constitution, statute, local charter or ordinance, or other law, and the definition includes an activity performed on public or private property by a sworn law enforcement officer within the scope of the officer’s authority, as directed or assigned by his or her public employer for the purpose of public safety. MCL 691.1401(b).
The act lists exceptions, including the duty to maintain highways in reasonable repair, MCL 691.1402(1); the negligent operation of a government-owned motor vehicle, MCL 691.1405; a dangerous or defective condition of a public building, MCL 691.1406; and the proprietary function exception, which covers an activity conducted primarily for the purpose of producing a pecuniary profit for the governmental agency, excluding any activity normally supported by taxes or fees. MCL 691.1413. Whether any of them fits a claim depends on the facts, and I check the statute’s text and notice requirements before I advise on it.
Michigan immunity for individual officers
For negligence claims against an individual officer or employee, the statute provides immunity if three conditions are met: the person is acting or reasonably believes he or she is acting within the scope of his or her authority; the governmental agency is engaged in the exercise or discharge of a governmental function; and the person’s conduct does not amount to gross negligence that is the proximate cause of the injury or damage. MCL 691.1407(2). The statute defines gross negligence as conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results. MCL 691.1407(8)(a). The Michigan Supreme Court held in Robinson v. City of Detroit, 462 Mich. 439, 446 (2000) that the phrase “the proximate cause” in the employee provision means the one most immediate, efficient and direct cause preceding an injury, not a proximate cause.
Intentional torts such as assault, battery and false imprisonment follow a different rule. The statute does not alter the law of intentional torts as it existed before July 7, 1986. MCL 691.1407(3). In Odom v. Wayne County, 482 Mich. 459, 479-80 (2008), the Michigan Supreme Court said that the burden continues to fall on the governmental employee to raise and prove entitlement to immunity as an affirmative defense, and that the employee does so by showing that the acts were undertaken during the course of employment and the employee was acting, or reasonably believed he was acting, within the scope of his authority; that the acts were undertaken in good faith, or were not undertaken with malice; and that the acts were discretionary, as opposed to ministerial.
Why state immunity law does not control a section 1983 claim
A person can have a federal claim and a state-law claim from the same event, and the immunity rules differ for each. The Supreme Court has held that a state law that immunizes government conduct otherwise subject to suit under section 1983 is preempted, even where the federal civil rights litigation takes place in state court, because the application of the state immunity law would thwart the congressional remedy. Felder v. Casey, 487 U.S. 131, 139 (1988). So the Michigan act is a defense I plan for on the state-law counts, and not a bar I assume on the federal ones. I also meet the earliest state notice deadline that could apply, even where I think it does not.
Claims against the State: the court of claims notice
Michigan has a separate notice rule for claims against the State. A claim may not be maintained against this state unless the claimant, within 1 year after the claim has accrued, files in the office of the clerk of the court of claims either a written claim or a written notice of intention to file a claim against the state or any of its departments, commissions, boards, institutions, arms or agencies. MCL 600.6431(1). For a claim against the state for property damage or personal injuries, the claimant shall file the claim or notice within 6 months after the event that gives rise to the claim. MCL 600.6431(4). The notice has required contents and must be verified. MCL 600.6431(2). Because the periods are short, I ask people to call early when a state agency or employee is involved.
What remedies a claim can seek
Against an individual defendant, the Supreme Court has held that a jury may be permitted to assess punitive damages in an action under section 1983 when the defendant’s conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others. Smith v. Wade, 461 U.S. 30, 56 (1983). A municipality is immune from punitive damages under section 1983. City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981). In an action to enforce section 1983, the court in its discretion may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs. 42 U.S.C. 1988(b). I explain what each remedy requires before a case is filed, and I do not predict what a court will order.
Defenses to expect
I expect the defendants to raise qualified immunity, absolute immunity, the lack of a municipal policy or custom, the lack of personal involvement by supervisors, the State’s status under Will, governmental immunity under the Michigan act, the notice rules and limitation periods, and a dispute over the facts. Not every injury caused by a government worker is a claim that can be brought, and I tell you that when it is true.
How I handle a case that involves an immunity defense
- Identify every possible defendant. I list the officers, supervisors, the city or county and any state agency, and decide which capacity applies to each.
- Match the claim to the law. I separate the federal claims from the Michigan claims, because the immunity rules and the deadlines differ.
- Research the clearly established law. For each individual defendant, I look for decisions from the Supreme Court, the Sixth Circuit and other courts that involved similar conduct.
- Build the record for policy and custom. I request policies, training records and complaint histories.
- Calendar the notice rules and deadlines. I fix every notice and limitation date, including the notice to the court of claims for any claim against the State.
- Preserve evidence. I write to the agency about video, audio, body camera footage and reports, and I ask you to keep your own photographs, messages and medical records.
- Plan for motions and appeals. I prepare to answer an early immunity motion and an appeal on a legal question, and I keep you informed about timing.
What I need from you
Bring everything you have about the incident: police reports, citations, charging papers, bond papers, medical records, photographs, video, text messages and any letters from the city, county or State. Write down the date, time and place, the names or badge numbers of those involved, what was said and done, and who saw it. Tell me whether any criminal case is open. Do not post about the incident, and do not sign anything from an insurer or a government body without talking to me first.
Where your Kent County case will be heard
I represent clients in Grand Rapids, Kentwood, Grandville, Wyoming and across Kent County. In Kent County the circuit court is the Kent County Circuit Court, the 17th Judicial Circuit. The district courts in the county are the 61st District Court in Grand Rapids, the 59th in Walker and Grandville, the 62A in Wyoming, the 62B in Kentwood, and the 63rd for Rockford, Lowell, Cedar Springs, East Grand Rapids and the surrounding townships. The court that hears a claim depends on the claims and the defendants. I decide with you where to file after I review the defendants, the claims and the deadlines.
Why people hire me for an immunity-heavy civil rights case
You work directly with me, the lawyer handling your case. I tell you which defenses I expect and what I need to answer them, including the deadlines. I read the file before I advise you, I explain the strengths and weaknesses plainly, and then we decide together how to proceed.
Fees depend on the claim, its complexity and whether the case is likely to go to trial. I explain my fee arrangement at the consultation, before you decide whether to hire me.
Questions I hear about immunity in Michigan civil rights cases
What is qualified immunity, and does it end my case?
Not necessarily. Qualified immunity protects individual officers, not cities, from damages unless they violated clearly established statutory or constitutional rights, and it does not end every case. A court may decide either whether a right was violated or whether it was clearly established first.
If the judge denies an officer’s qualified immunity motion, can the officer appeal right away?
On legal questions, yes. Under Mitchell v Forsyth, a denial of qualified immunity, to the extent it turns on an issue of law, is an appealable final decision. Under Johnson v Jones, an officer does not get an immediate appeal of an order insofar as it decides whether the pretrial record presents a genuine factual dispute for trial.
When can I sue a Michigan city or county for what its officer did?
Under Section 1983, only if the violation was caused by the government’s own policy or custom. Under Monell v Department of Social Services, a local government is not liable on a respondeat superior theory just because it employs the officer. The Sixth Circuit recognizes four ways to show a policy or custom, and a city does not get to rely on its officers’ good faith as a defense.
Can I sue a city for failing to train its police officers?
Yes, but the standard is demanding. Under City of Canton v Harris, inadequate police training supports Section 1983 liability only where the failure to train amounts to deliberate indifference to the rights of people the police contact. A pattern of similar violations by untrained employees is ordinarily necessary under Connick v Thompson.
Can I sue a Michigan city or county for a state-law tort committed by its officer?
Usually not. Michigan’s governmental tort liability act makes a governmental agency immune from tort liability when it is engaged in a governmental function, except as the act otherwise provides. That immunity does not control federal Section 1983 claims; the Supreme Court said in Martinez v California that a state immunity statute does not control a Section 1983 claim.
Can I sue an individual Michigan officer for negligence?
Only in a narrow case. Under MCL 691.1407(2), an officer or employee is immune from tort liability for injury caused while in the course of employment if the officer was acting within the scope of authority, the agency was engaged in a governmental function, and the conduct was not gross negligence that is the proximate cause of the injury.
Can I sue a Michigan officer for assault, battery, or false imprisonment, and what immunity applies?
Yes, but the officer may have qualified immunity. Michigan preserves the law of intentional torts as it existed before July 7, 1986, and under Odom v Wayne County a governmental employee sued for an intentional tort has qualified immunity if the acts were within the scope of authority, in good faith, and discretionary rather than ministerial, and the employee must raise it as an affirmative defense. State-law assault, battery, and false imprisonment claims must be filed within 2 years under MCL 600.5805(3).
Related Michigan pages
- Michigan civil rights attorney
- Section 1983 claims
- Municipal liability and suing a city or county
- Excessive force
- Government claims and notice deadlines
I handle civil rights claims against Michigan officers, cities, counties and the State, including the immunity defenses they raise. Contact me 24/7 by phone or email. Your Rights, My Fight! Call for a free initial consultation.
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Law Offices of Mitchell S. Bisson, 2828 Kraft Ave SE, Suite 295, Grand Rapids, MI 49512, serving Kent County and West Michigan.
This page provides general information about Michigan law and is not legal advice. Reading it does not create an attorney-client relationship. Laws change and every case turns on its own facts. Consult a licensed attorney about your specific situation.