Hastings Constitutional Law Quarterly
Using a seriously questionable Eighth Circuit decision as a foil but going well beyond it, Professor Nahmod argues that absolute quasi-judicial immunity from section 1983 damages liability should only protect law enforcement officers and others whose challenged conduct is prescribed by presumptively valid court orders. In contrast, neither absolute nor qualified immunity should protect law enforcement officers and others who follow presumptively invalid judicial orders (a "Nuremberg following-orders" defense issue). Furthermore, quasi-judicial immunity should not protect law enforcement officers and others whose allegedly unconstitutional conduct is not prescribed by presumptively valid court orders; qualified immunity is more than adequate to protect the community's interest in avoiding over-deterrence. To conclude otherwise (as the Eighth Circuit did) is inconsistent with corrective justice, growth-of-law considerations and the educational functions of § 1983 liability.
From the Courtroom to the Street: Court Orders and Section 1983,
29 Hastings Const. L.Q. 613
Available at: https://repository.uclawsf.edu/hastings_constitutional_law_quaterly/vol29/iss4/1