When are government officials protected by legislative immunity? A legislator is being sued under 42 U.S.C. 1983 for violating a constituent's civil rights. The legislator wants to assert legislative immunity as a defense. What is the test for determining whether his actions fall within the scope of the grant of immunity? EDIT: I already understand that "absolute legislative immunity attaches to all actions taken in the sphere of legitimate legislative activity"; my question is how we know whether an action is in that sphere. For the sake of example, imagine that Pat and Dan are neighbors who have always hated each other. Pat is elected the president of the school board. Pat wants to sue Dan for monetary damages based on the following actions: Voting to reduce the number of teachers at Pat Jr.'s school; Defaming Pat in an e-mail to a principal. The message is sent and received using government e-mail addresses, but its content has no connection to school district business. Refusing to let Pat Jr.'s Eagle Scout troop make a presentation to the school board. Ordering the police to arrest Pat for loudly coughing "bullshit" when Dan says he treats everyone fairly. Punching Pat in the parking lot after the meeting. Under generally applicable common-law principles, which of these claims should a court dismiss on the basis of legislative immunity, and what test should it use to decide which claims survive?
Only "legislative acts" give rise to legislative immunity. Perhaps surprisingly, being a legislator is neither necessary nor sufficient for the privilege to apply. A defendant would need to assert the act in question was essentially a legislative activity. Quoting from the Federal Judicial Center's extensive paper on section 1983: State and local legislators enjoy absolute immunity for their legislative acts. Under the functional approach to immunity, the critical issue is whether the official was engaged in legislative activity. The determination of an act’s legislative or executive character “turns on the nature of the act, rather than on the motive or intent of the official performing it.” Legislative action involves the formulation of policy, whereas executive action enforces and applies the policy in particular circumstances. The primary case cited is Bogan v. Scott-Harris, 523 U.S. 44, 49 (1998), Bogan further cites Tenney v. Brandhove, 341 U. S. 367, 372, 372-376 in clarifying questions of the defendant's intent or motive are irrelevant as long as the act is part of a legislative activity. So proposing, drafting, voting or debating (for or against) a specific measure fall within the immunity, regardless of the claimed improper motive for doing them. For example, in Bogan, Scott-Harris made arguments that closing of a government department was motivated by racial animus which violated her civil rights as the only employee in the department. The high court found that closing the departmental was essentially a legislative activity regardless of claims about improper motive for the action. Officials outside the legislative branch are entitled to legislative immunity when they perform legislative functions. Bogan also shows the privilege applied not only to the legislators, but the mayor (an executive), because his actions in drawing up a budget proposing the closing of the department, and his signing the action into law were of essentially parts of the legislative process. IMHO, the hypothetical examples now in the question, only act #1 seems to be making a policy decision similar to legislation activity.
Ballot photos Anti-ballot-photo laws may not be constitutional. Two of them have been struck down for violating the 1st Amendment. Rideout v Gardner Case 1:14-cv-00489-PB Indiana Civil Liberties Union Foundation, Inc., d/b/a American Civil Liberties Union of Indiana v. Indiana Secretary of State, et al., Case 1:15-cv-1356-SEB-DML California's has been amended by the legislature to allow disclosure of a filled-in ballot as long as it isn't part of violating some other law (like vote buying). Open container laws Open-container laws have never been held to be unconstitutional. These are state laws, and states have broad freedom to legislate as long as they don't violate their constitution or elements of the Federal Constitution that have been incorporated by the 14th Amendment. My guess is that they would be upheld because they would pass rational basis review: they are rationally related to a legitimate government interest. Here is an example of an open-container law surviving a constitutional challenge. State are encouraged to pass open-container laws by 23 USC 154. If a state does not have an open container law, they receive less federal highway funding. This kind of condition was upheld by South Dakota v. Dole.
No, it is not. Section 1 allows legislatures to infringe all Charter rights under certain reasonable circumstances. Section 33 is an alternative method by which legislatures can completely ignore the Charter rights that it can be applied to (ss. 2 &amp; 7 to 15). Section 33 is a legislative procedural provision, it is not in itself an inherent right which would be subject to Section 1. Furthermore, reading Section 1 to apply in this way to Section 33 would completely eviscerate the meaning of Section 33 since it is a stronger mechanism for violating Charter rights. Case law on this is few due to the relative rarity of legislatures invoking the Section 33 notwithstanding clause and the fact that invoking it is generally a shield to judicial review. However, while not explicitly confirming what I said, Ford v. Quebec (AG) [1988] 2 SCR 712 basically takes for granted the above and applies it (note it can be a confusing read due to three different Charters being involved). In it, ss. 58 &amp; 69 of Quebec's Charter of the French Language were disputed. Due to legislative hijinks*, it was unclear whether either section was covered by an invocation of the notwithstanding clause. The Court first undertook a procedural analysis to determine whether the notwithstanding clause applied and found that s. 58 was covered, but s. 69 was not (para. 34). Only after that did it address the substantive rights issues. While still analysing both ss. 58 &amp; 69 to fall within the guarantees of Charter s. 2(b), the court only concluded s. 69 to infringe the Charter since (implicitly) s. 58 was not eligible for such a determination by virtue of the notwithstanding clause (para. 60). As Charter rights were found to be infringed, the Court then examined whether s. 69 could saved under Section 1. It could not, thus rendering it an unjustifiable infringement of the Charter (para. 73). *To keep this answer both short and focussed on law, we really do not have time to get into the Quebec government's initial responses to the passage of the Constitution Act, 1982.
There's been recent publicity about an American diplomat in Britain responsible for a car accident that killed someone. She claimed diplomatic immunity and left the country. Could the victim's family sue her in an American court? They could sue, but the case would probably be summarily dismissed, often one of the following two grounds: (1) related to diplomatic immunity, but not specifically covered by the Vienna Convention on Diplomatic Relations, such as common law sovereign immunity which bars suits against individuals or their employers for actions taken in an official capacity on behalf of a federal government employer (the scope of which is interpreted broadly in the case of diplomatic personnel abroad, much as it is in the case of what conduct of the President of the United States constitutes an action taken in an official capacity), unless waived. Cf. Cruikshank v. U.S., 431 F.Supp. 1355 (D. Hawaii 1977) ("Alleged activities of agents of Central Intelligence Agency in opening and photographing sealed, first-class letters mailed by plaintiff to colleagues in the Soviet Union fell within purview of general waiver of sovereign immunity statute, despite claim that Central Intelligence Agency agents involved could not have been legally authorized to carry out such activities and consequently, as matter of law, were not “acting within the scope of their office or employment,” as that phrase is used in this section.") If a diplomat is acting in an official capacity, lawsuits can be filed against the U.S. government, but not against the individual, and can't only be brought under the Federal Tort Claims Act, and only then if an exception to it does not apply. The FTCA is the "exclusive means by which a party may sue the United States for money damages ... in tort" (28 USC § 2679. Exclusiveness of remedy). Accordingly, an FTCA action "can be brought only in a United States District Court" (28 USC § 1346(b)). Regarding the timing of filing, FTCA's § 2401(b) states that the action must be brought "within two years after the claim accrues," or "within six months after ... notice of final denial of the claim by the agency". In addition, under the FTCA, "Liability is determinable in accordance with the law of the place where the act or omission occurred" (§1346(b)(1)). More fully, 28 USC § 1346(b)(1) states: Subject to the provisions of chapter 171 of this title, the district courts, together with the United States District Court for the District of the Canal Zone and the District Court of the Virgin Islands, shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. But, 28 U.S.C. 2680(k) expressly precludes the exercise of jurisdiction under the FTCA over "[a]ny claim arising in a foreign country." See, e.g., Smith v. United States, 507 U.S. 197 (1993) (FTCA does not apply to claims arising in Antarctica). "It is a longstanding principle of American law `that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.' " Foley Bros., Inc. v. Filardo, 336 U.S. 281, 285 (1949). Basically, sovereign immunity is absolute for torts committed abroad in an official capacity by a U.S. government official of any kind. So, if the official capacity conduct claim is barred by diplomatic immunity where it occurred, it is barred everywhere. or (2) in cases not arising from actions taken in the diplomat's official capacity, on the discretionary quasi-jurisdictional grounds of forum non conveniens, even thought American courts, as a general rule, have jurisdiction over all civil claims of private persons arising anywhere in the world against a person who is domiciled in the state where the state or federal court in question is located. For over a quarter century, federal judges have assumed that foreign injury cases, particularly those filed by foreign plaintiffs, are best litigated abroad. . . . Federal judges approach the forum non conveniens decision as if it were a species of choice of law, as opposed to a choice of forum question. Elizabeth T. Lear, "National Interests, Foreign Injuries, and Federal Forum Non Conveniens", 41(2) U.C.-Davis Law Review 559 (2007). One of the leading forum non conviens cases pertinent to this fact pattern is Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981), involving an airplane crash in Scotland in which U.S. defendants were allegedly at fault. Potential loopholes in that decision have been closed by subsequent cases. Federal judges are all that matter in a lawsuit between a foreigner and a U.S. person involving claims in excess of $75,000 (which essentially all personal injury cases worth bringing internationally do), such as the one contemplated in this case, which fall within the diversity jurisdiction of the federal courts and can be removed from a state court to a federal court. (And, state courts tend to defer to federal precedents in diversity cases in claims which are not removed from state court to federal court.) The Alien Tort Claim Act expressly authorizes certain lawsuits in U.S. Courts for violations of international law or treaties committed abroad (although whether the judicial power extends to cases where all of the defendants are non-U.S. persons is an issue of ongoing dispute), but not for simple common law torts like the negligence actions that are the basis of most automobile accident cases. There are also other specific statutes that might authorize lawsuits (e.g. civil rights statutes, patent laws, copyright laws, etc.), but none of them would ordinarily apply to a simple automobile accident allegedly causing a wrongful death. It is conceivable that an attorney could find some way to thread a needle through these two strong limitations on bringing suit against U.S. diplomats in U.S. courts for personal injuries caused by ordinary common law torts committed abroad which are barred by diplomatic immunity where they occurred, but it would take extraordinary facts that do not appear to be present in this relatively routine automobile accident allegedly wrongfully causing a death of a non-U.S. person. Could she be criminally prosecuted in America because of what she did in Britain? No. The Vienna Convention only directly limits criminal prosecutions of people with diplomatic immunity in jurisdictions where someone is a credentialed diplomat or head of state. But, usually criminal cases can only be prosecuted in the jurisdiction where they are committed or the jurisdiction to which the crime was directed if a crime is committed outside a prosecuting jurisdiction but directed at a victim or target in the prosecuting jurisdiction. There are federal statutes criminalizing conduct victimizing various U.S. government officials, but very few criminalizing conduct that would otherwise not be a crime subject to U.S. criminal prosecution if it is committed by a U.S. government official abroad (in some cases, a violation of civil rights claims might apply, but not in a car accident case like this one). Note that I am limiting this to a criminally culpable automobile accident against a non-U.S. person while diplomatic credentials were in force. There might be a U.S. prosecution of a diplomat, for example, for espionage in the form of revealing U.S. secrets, or as another example, for a rape of one U.S. person who has diplomatic immunity by some other U.S. person at the same embassy. The cases could arguably be directed at the U.S. or a U.S. person. The most negative U.S. consequence that could arise from criminal conduct that did not take place in the U.S. and was not directed at the U.S. or a U.S. person (for civilians not subject to the U.S. Code of Military Justice) would usually be termination of employment at the U.S. State Department and termination of diplomatic credentials, both of which would have prospective application only.
So can Congress itself just declare someone guilty of insurrection and bar them from standing in elections, without that being considered a bill of attainder? No. Even if it isn't a bill of attainder, the Congress can't do that. Or do they have to delegate the finding of fact (in re insurrection) to another body, e.g. to the judiciary? The issue would be presented when someone ran for public office and their qualifications were challenged, and would be resolved by state and local election officials, subject to judicial review. If that was not done, Congress could nonetheless refuse to recognize a state certification of someone's election on these grounds.
In Wisconsin, right after the perjury law, they have a law prohibiting "false swearing". It applies if a person: Makes or subscribes 2 inconsistent statements under oath or affirmation or upon signing a statement pursuant to s. 887.015 in regard to any matter respecting which an oath, affirmation, or statement is, in each case, authorized or required by law or required by any public officer or governmental agency as a prerequisite to such officer or agency taking some official action, under circumstances which demonstrate that the witness or subscriber knew at least one of the statements to be false when made. The period of limitations within which prosecution may be commenced runs from the time of the first statement. So even if they couldn't actually get you for perjury, they could get you for violating this law. Perjury and false swearing are both class H felonies, so you can expect the same punishment. I am going to guess that the existence of this law suggests that it was needed to cover what would otherwise be a loophole in the perjury law, but I can't say for sure.
In principle, police are liable for the safety of anyone they detain. If an officer creates a hazardous condition, as was described in this scenario, he or his agency (which effectively means the taxpayers who fund his agency) can be held liable for damages resulting from that action. (Whether it is the officer or instead the taxpayers who get stuck with the bill is a separate question of "qualified immunity.") This idea has been formalized under two theories: The "special relationship doctrine" would apply in this case because the officer was detaining the driver. Otherwise, the liability could be argued under the more broad "state-created danger doctrine."
How can incitement of imminent lawless action not be constitutionally protected? The short answer to your question is &quot;because the Supreme Court of the United States said so.&quot; In Brandenburg v. Ohio SCOTUS found that the Constitution protects speech that calls for lawless action in the abstract but does not protect speech &quot;directed to inciting or producing imminent lawless action and is likely to incite or produce such action&quot;. The court's per curiam opinion seems to treat the decision as self-evident - it's quite short after discussing the facts of the case. However, Justice William O. Douglas wrote a concurring opinion (his &quot;caveat&quot;) that discussed and was critical of previous decisions in such cases, including the use of the 'clear and present danger test', so his opinion is useful for a brief history of First Amendment judgments to that point (Brandenburg). The Declaration of Independence is not law. Following &quot;a history of repeated injuries and usurpations&quot; and failures to reach political settlements it asserts a moral right to overthrow the tyranny of the British crown. It alludes to rights, it does not &quot;enshrine&quot; or create a legal right that the judiciary can interpret. Judges might refer to the Declaration in their judgments, not using it as legal authority but an articulation of fundamental values.