IMMUNITY AND IMMUNOLOGY

CONCEPT

Immunity is the condition of being able to resist a specific disease, particularly through means that prevent the growth and development of disease-carrying organisms or counteract their effects. It is regulated by the immune system, a network of organs, glands, and tissues that protects the body from foreign substances. Immunology is the study of the immune system, immunity, and immune responses. Progress in immunology over the past two centuries has made inoculation—the prevention of a disease by the introduction to the body, in small quantities, of the virus or other microorganism that causes the disease—widely accepted and practiced. Despite such progress, however, some diseases evade human efforts to counteract them through medicine or other forms of treatment. This is particularly the case with a disease in which the immune system shuts down entirely: a condition known as acquired immunodeficiency syndrome, or AIDS.

HOW IT WORKS

Immunity and the Immune System

The functioning of the immune system is considered in a separate essay, along with the means by which that system responds to foreign invasion. Also included in that essay is a discussion of allergies, which arise when the body responds to ordinary substances as though they were pathogens, or disease-carrying parasites. The body cannot know in advance what a pathogen will look like and how to fight it, so it creates millions and millions of different lymphocytes, a type of white blood cell. The principal types of lymphocyte are B cells and T cells. These cells recognize random antigens, or substances capable of requiring an immune response.

Certain researchers believe that while some B cells and T cells are directed toward fighting an infection, others remain in the bloodstream for months or even years, primed to respond to another invasion of the body. Such "memory" cells may be the basis for immunities that allow humans to survive such plagues as the Black Death of 1347-1351 (see Infectious Diseases). Other immunologists, however, maintain that trace amounts of a pathogen persist in the body and that their continued presence keeps the immune response strong over time.

Immunology

Immunology is the study of how the body responds to foreign substances and fights off infection and other disease-causing agents. Immunologists are concerned with the parts of the body that participate in this response, and this investigation takes them beyond looking merely at tissues and organs to studying specific types of cells or even molecules.

From ancient times, humans have recognized that some people survive epidemics, when the majority are dying. About 1,500 years ago in India, physicians even practiced a form of inoculation, as we discuss later. The modern science of immunology, however, had its beginnings only in 1798, when the English physician Edward Jenner (1749-1823) published a paper in which he maintained that people could be protected from the deadly disease smallpox by the prick of a needle dipped in the pus from a cowpox boil. (Cowpox is a related, less-lethal disease that, as its name suggests, primarily affects cattle.)

Later, the great French biologist and chemist Louis Pasteur (1822-1895) theorized that inoculation protects people against disease by exposing them to a version of the pathogen that is harmless enough not to kill them but sufficiently like the disease-causing organism that the immune system learns to fight it. Modern vaccines against such diseases as measles, polio, and chicken pox are based on this principle.

HUMORAL AND CELLULAR IMMUNITY.

In the late nineteenth century, a scientific debate raged between the German physician Paul Ehrlich (1854-1915) and the Russian zoologist Élie Metchnikoff (1845-1916) concerning the means by which the body protects against diseases. Ehrlich and his followers maintained that proteins in the blood, called antibodies, eliminate pathogens by sticking to them. This phenomenon and the theory surrounding it became known as humoral immunity. Metchnikoff and his students, on the other hand, had noted that certain white blood cells could swallow and digest foreign materials. This cellular immunity, they claimed, was the real way that the body fights infection. In fact, as modern immunologists have shown, both the humoral and cellular responses identified by Ehrlich and Metchnikoff, respectively, play a role in fighting disease.

REAL-LIFE APPLICATIONS

Inoculation and Vaccines

Inoculation is the prevention of a disease by the introduction to the body, in small quantities, of the virus or other microorganism that causes that particular ailment. It is a brilliant idea, yet one that seems to go against common sense. For that reason, it was a long time in coming: not until the time of Jenner, in about 1800, did the concept of inoculation become widely accepted in the West. Nonetheless, it had been applied more than 13 centuries earlier in India.

In the period between about 500 b.c. and a.d. 500, Hindu physicians made extraordinary strides in a number of areas, pioneering such techniques as plastic surgery and the use of tourniquets to stop bleeding. Most impressive of all was their method of treating smallpox, which remained one of the world's most deadly diseases until its eradication in the late 1970s. Indian physicians apparently took pus or scabs from the sores of a mildly infected patient and rubbed the material into a small cut made in the skin of a healthy person. The Indians' method was risky, and there was always a chance that the patient would become deathly ill, but the idea survived and gradually made its way west over the ensuing centuries.

SMALLPOX VACCINATION.

Smallpox, or variola, is carried by a virus that causes the victim's body to break out in erupting, pus-filled sores. Eventually, these sores dry up, leaving behind scars that may alter the appearance of the victim permanently, depending on the intensity of the disease. Such was the case with Lady Mary Wortley Montagu (1689-1762), a celebrated English writer and noblewoman. Known for her passionate relationships, romantic and otherwise, Lady Montagu had been scarred from youth by smallpox, and no doubt this experience gave her heightened concern for the victims of the disease. While she was in Turkey with her husband, Edward, an ambassador, she became aware of an inoculation method, probably based on the Hindu practice of many centuries before, used by local women. Lady Montagu arranged for her three-year-old son to be inoculated against smallpox in 1717, and after returning home, initiated smallpox inoculations in England.

Nonetheless, the problem remained that the inoculated person contracted a serious case of the disease and died, at least some of the time. More than 80 years later, in 1796, during a smallpox epidemic, Jenner decided to test a piece of folk wisdom to the effect that anyone who contracted cowpox became immune to human smallpox. He took cowpox fluid from the sores of a milkmaid named Sarah Nelmes and rubbed it into cuts on the arm of an eight-year-old boy, James Phipps, who promptly came down with a mild case of cowpox. Soon, however, James recovered, and six weeks later, when Jenner injected him with samples of the smallpox virus, the boy was unaffected.

Jenner, who published his findings after conducting additional tests, coined a new term for the type of inoculation he had used: vaccination, from the Latin word for cowpox, vaccinia. (The latter term comes from the Latin vacca, or "cow," the source of such terms as the French vache. ) With the success of his vaccine, Jenner was awarded a sum of money to continue his work, and he soon oversaw the vaccination of thousands of English citizens, including the royal family. The practice spread to Germany and Russia and then to the United States. In Lady Montagu's time, the American clergyman Cotton Mather (1663-1728) had been an advocate of vaccination, and now President Thomas Jefferson (1743-1826) became an ardent proponent of Jenner's methods.

RABIES AND POLIO INOCULATION.

The next advancement in the study of vaccines came almost 100 years after Jenner's discovery. In 1885 Pasteur saved the life of Joseph Meister, a nine-year-old boy who had been attacked by a rabid dog, by using a series of experimental rabies vaccinations. Pasteur's rabies vaccine, the first human vaccine created in a laboratory, was made from a version of the live virus that had been weakened by drying it over potash (sodium carbonate—burnt wood ashes).

Exactly 70 years later, the American microbiologist Jonas Salk (1914-1995) created a vaccine for poliomyelitis (more commonly known as polio), in which the skeletal muscles waste away and paralysis and often permanent disability and deformity ensue. Although polio had been known for ages, the first half of the twentieth century had seen an enormous epidemic in the United States.

The most famous victim of this scourge was the future president Franklin D. Roosevelt (1882-1945), who contracted it while on vacation in 1921. Throughout the 1930s and 1940s, polio remained a threat, especially to children; at the peak of the epidemic, in 1952, it killed some 3,000 Americans in one year, while 58,000 new cases were reported. At the same time, Salk was working on his vaccine, which finally was declared safe after massive testing on school-children. In 1961 an oral polio vaccine developed by the Polish-born American virologist Albert Sabin (1906-1993) was licensed in the United States. Whereas the Salk vaccine contained the killed versions of the three types of poliovirus that had been identified in the 1940s, the Sabin vaccine used weakened live poliovirus. Because it was taken by mouth, the Sabin vaccine proved more convenient and less expensive to administer than the Salk vaccine, and it soon overtook the latter in popularity. By the early 1990s health organizations reported that polio was close to extinction in the Western Hemisphere.

TRIUMPHS AND CONTINUING CHALLENGES.

Thanks to these and other vaccines, many life-threatening infectious diseases have been forced into retreat. In the United States, children starting kindergarten typically immunized against polio, diphtheria, tetanus, measles, and several other diseases. Other vaccinations are used only by people who are at risk of contracting a disease, are exposed to a disease, or are traveling to an area (usually in the Third World) where particular diseases are common. Such vaccinations include those for influenza, yellow fever, typhoid, cholera, and hepatitis A.

Internationally, 80% of the world's children had been inoculated as of 1990 for six of the primary infectious diseases: polio, whooping cough, measles, tetanus, diphtheria, and tuberculosis. Smallpox was no longer on the list, because efforts against it had proved overwhelmingly successful. (See Infectious Diseases for more on the threat, or nonthreat, of smallpox as a form of biological warfare.) Despite these successes, however, each year more than two million children who have not received any vaccinations die of infectious diseases. Even polio has continued to be a threat in some parts of the world: as many as 120,000 cases are reported around the world each year, most in developing regions. And as if the threat from age-old diseases were not enough, in the last quarter of the twentieth century a new killer entered the fray: AIDS.

AIDS

A viral disease that is almost invariably fatal, AIDS destroys the immune systems of its victims, leaving them vulnerable to a variety of illnesses. No cure has been found and no vaccine ever developed. The virus that causes AIDS has proved to be one of the most elusive pathogens in history, and so far the only effective way not to contract the disease is to avoid sharing bodily fluid with anyone who has it. This means not having sex without condoms (and, to be on the truly safe side, not having sex outside a committed, fully monogamous relationship) and not engaging in intravenous drug use. But there are some people who have contracted the AIDS virus through no actions or fault of their own: people who have received it in blood transfusions or, even worse, babies whose AIDS-infected mothers have passed the disease on to them.

Within two to four weeks of being infected with the virus that causes AIDS (HIV, human immunodeficiency virus), a patient will experience what at first seems like flu: high fever, headaches, sore throat, muscle and joint pains, nausea and vomiting, open ulcers in the mouth, swollen lymph nodes, and perhaps a rash. As the immune system begins to fight the invasion, some cells produce antibodies to neutralize the viruses that are floating free in the bloodstream. Killer T cells destroy many other cells infected with the AIDS virus, and the patient enters a phase of the disease in which no symptoms are evident.

Although at this point it seems as though the worst is over, in fact, the AIDS virus is at work on the immune system, quietly destroying the body's protection by infecting those T cells that would protect it. With an immune system that gradually becomes more and more unresponsive, the patient is made vulnerable to any number of infections. Normally, the body would be able to fight off these attacks with ease, but with the immune system itself no longer functioning properly, infectious diseases and cancers are free to take over. The result is a long period of increasing misery and suffering, sometimes accompanied by dementia or mental deterioration caused by the ravaging of the brain by disease. Whatever the course it takes, the end result of AIDS is always the same: not just death but a miserable, excruciatingly painful death.

BIRTH OF A KILLER.

Believed to have originated in Africa, where the majority of AIDS cases still are found (see Infectious Diseases for statistics on AIDS), the disease first appeared in the United States in 1981. In that year two patients were diagnosed with an unusual form of pneumonia and with Kaposi's sarcoma, a type of cancer that previously had struck only people of Mediterranean origin aged 60 years and older. The appearance of that condition in younger persons of non-Mediterranean origin prompted an investigation by the United States Centers for Disease Control and Prevention (CDC).

Through the efforts of physicians both inside and outside the CDC, understanding of AIDS—the name and acronym appeared in 1982—gradually emerged. In 1983 scientists at the Pasteur Institute in Paris, as well as a separate team in the United States, identified the virus that causes AIDS, a pathogen that in 1986 was given the name human immunodeficiency virus (HIV). Further research showed that HIV, a retrovirus (see Infectious Diseases for an explanation of retrovirus), is subdivided into two types: HIV-1 and HIV-2. In people who have HIV-2, AIDS seems to take longer to develop; however, neither form of HIV carries with it a guarantee that a person will contract the disease. At first it was believed that if someone were HIV-positive, meaning that the person had the virus, it was a virtual death sentence. Therefore in 1991, when the basketball superstar Earvin "Magic" Johnson (1959-) announced that he was HIV-positive, it was an extremely melancholy event. Fans and admirers all over the world assumed that Johnson shortly would contract AIDS and begin to wither away in the process of suffering an exceedingly panful, dehumanizing death.

The fact that Johnson was alive and healthy more than ten years after the diagnosis of his infection with HIV serves to indicate that there is a great deal of difference between being HIV-positive and having AIDS. It also says much about people's emerging understanding of the disease and the virus that causes it. So, too, does Johnson's experience as he attempted, twice, to make a return to the court after retiring in the wake of his HIV announcement. Before examining his experiences, let us look at the social climate engendered by this politically volatile immunodeficiency syndrome.

CHANGING VIEWS ON AIDS.

AIDS first was associated almost exclusively with the male homosexual community, which contracted the disease in large numbers. This had a great deal to do with the fact that male homosexuals were apt to have far more sexual partners than their heterosexual counterparts and because anal intercourse is more likely to involve bleeding and hence penetration of the skin shield that protects the body from infection. The association of AIDS with homosexuality led many who considered themselves part of the societal mainstream to dismiss AIDS as a "gay disease," and the fact that intravenous drug users also contracted the disease seemed only to confirm the prejudice that AIDS had nothing to do with heterosexual non-junkies. Some so-called Christian ministers even went so far as to assert, sometimes with no small amount of satisfaction, that AIDS was God's punishment for homosexuality.

Then, during the mid-1980s, AIDS began spreading throughout much of society: to heterosexuals, hemophiliacs (see Noninfectious Diseases) and others who received blood, and even babies. The fact that AIDS could be transferred through heterosexual intercourse proved that it was not just a disease of homosexuals. Nor were all homosexuals necessarily susceptible to it. In fact, the safest of all sexual groups was homosexual women, who often tended toward monogamy and whose form of sexual contact was least invasive.

As AIDS spread throughout society, so did paranoia. Rumors circulated that a person could catch the disease from a mosquito bite or from any contact with the bodily fluids of another person—not just semen or blood but even sweat or saliva. People with AIDS began to acquire the status lepers once had held (see Infectious Diseases). By the mid-1990s views had changed considerably, and society as a whole had a much more realistic view of AIDS. This came about to some extent because of increased education and awareness—and in no small part because of Johnson, who was by far the most widely knownand admired HIV-positive celebrity.

MAGIC COMES BACK.

After playing on the United States "Dream Team" that trounced all opponents at the 1992 Summer Olympics in Barcelona, Spain, Johnson attempted a comeback with the Lakers the following year. Owing to fears on the part of many other players that they might contract AIDS by coming into close contact with him on the court, however, he decided again to retire. In December 1991 Johnson had established the Magic Johnson Foundation to promote AIDS awareness, and he devoted himself to this and other AIDS-related causes as well as to other ventures. Raising money for AIDS led him out onto the basketball court again in October 1995, when he and the American All Stars faced an Italian team in a benefit game, with an unsurprisingly lopsided score of 135-81.

Then, in February 1996, Johnson made his second attempted comeback with the Lakers. He ended up retiring again four months later, this time for good, but because he had chosen to and not because he had been forced to do so. Thanks in part to his AIDS education programs, in his second comeback Johnson discovered that players realized that they were not likely to catch the virus on the court. As the New Jersey Nets' player Jayson Williams told one reporter, "You've got a better chance of Ed McMahon knocking on your door with $1 million than you have of catching AIDS in a basketball game."

WHERE TO LEARN MORE

Aaseng, Nathan. Autoimmune Diseases. New York: Franklin Watts, 1995.

American Autoimmune Related Diseases Association, Inc. (AARDA) (Web site). <http://www.aarda.org/>.

Benjamini, Eli, and Sidney Leskowitz. Immunology: A Short Course. New York: Liss, 1988.

Clark, William R. At War Within: The Double-Edged Sword of Immunity. New York: Oxford University Press, 1995.

Dwyer, John M. The Body at War: The Miracle of the Immune System. New York: New American Library, 1989.

Edelson, Edward. The Immune System. New York: Chelsea House, 1989.

How Your Immune System Works. How Stuff Works (Web site). <http://www.howstuffworks.com/immune-system.htm>.

"Infection and Immunity." University of Leicester Microbiology and Immunology (Web site). <http://www-micro.msb.le.ac.uk/MBChB/MBChB.html>.

"The Lymphatic System and Immunity." Estrella Mountain Community College (Web site). <http://gened.emc.maricopa.edu/bio/bio181/BIOBK/BioBookIMMUN.html>.

"Magic Johnson Retires Again, Saying It's on His Own Terms This Time." Jet , June 3, 1996, p. 46.

UNAids: The Joint UN Programme on HIV/AIDS (Web site). <http://www.unaids.org/>.

KEY TERMS

ALLERGY:

A change in bodily reactivity to an antigen as a result of a first exposure. Allergies bring about an exaggerated reaction to substances or physical states that normally would have little significant effect on a healthy person.

ANTIBODIES:

Proteins in the human immune system that help the body fight foreign invaders, especially pathogens and toxins.

ANTIGEN:

A substance capable of stimulating an immune response or reaction.

APC:

An antigen-presenting cell—a macrophage that has ingested a foreign cell and displays the antigen on its surface.

B CELL:

A type of white blood cell that gives rise to antibodies. Also known as a B lymphocyte.

EPIDEMIC:

Affecting or potentially affecting a large proportion of a population (adj. ) or an epidemic disease (n. )

HUMORAL:

Of or relating to the antibodies secreted by B cells that circulate in bodily fluids.

IMMUNE SYSTEM:

A network of organs, glands, and tissues that protects the body from foreign substances.

IMMUNITY:

The condition of being able to resist a particular disease, particularly through means that prevent the growth and development or counteract the effects of pathogens.

IMMUNOLOGY:

The study of the immune system, immunity, and immune responses.

INOCULATION:

The prevention of adisease by the introduction to the body, in small quantities, of the virus or other microorganism that causes the disease.

LYMPHOCYTE:

A type of white bloodcell, varieties of which include B cells and Tcells, or B lymphocytes and T lymphocytes.

MACROPHAGE:

A type of phagocyticcell derived from monocytes.

MONOCYTE:

A type of white blood cell that phagocytizes (engulfs and digests) foreign microorganisms.

MONOGAMOUS:

Having only one mate.

PATHOGEN:

A disease-carrying parasite, usually a microorganism.

PHAGOCYTE:

A cell that engulfs and digests another cell.

T CELL:

A type of lymphocyte, also known as a T lymphocyte, that plays a key role in the immune response. T cells include cytotoxic T cells, which destroy virus-infected cells in the cell-mediated immune response; helper T cells, which are key participants in specific immune responses that bind to APCs, activating both the antibody and cell-mediated immune responses; and suppressor T cells, which deactivate T cells and B cells.

VACCINE:

A preparation containing microorganisms, usually either weakened or dead, which are administered as a means of increasing immunity to the disease caused by those microorganisms.

Immunity

As a general rule of international law, states, some holders of high-ranking office in a state (such as heads of state or heads of government), and diplomatic and consular agents enjoy immunity from civil suits and criminal prosecutions inaugurated in other states (but not those inaugurated in international courts and tribunals). Many treaties, such as the Vienna Convention on Diplomatic Relations (April 18, 1961), the Vienna Convention on Consular Relations (April 24, 1963), and the New York Convention on Special Missions (December 8, 1969), guarantee this immunity. Immunities are meant to allow states and their representatives to engage in international relations as equal and independent entities. Thus, no state can be subject to legal proceedings in another state, as it would imply statuses of inferiority and superiority, or the subordination of one state to another.

A distinction is generally made between functional and personal immunities. Functional immunities cover the activities of any state official carried out in his official capacity—such as issuing passports or negotiating treaties. These activities are attributable to the state, and the individual cannot be held accountable for them, even after he leaves office. Personal immunities attach to the particular status of the holder of these immunities, such as the head of a diplomatic mission. They cover all activities carried out by the holder, but cease to apply when that particular status is concluded (with the exception, obviously, of activities covered by functional immunities).

Recent developments, in particular the establishment of international criminal tribunals and their statutory provisions on immunities, as well as the occurrence of national proceedings against incumbent or former dignitaries, have raised questions about the scope of these traditional immunities. In particular, the applicability of the principle of immunity in the case of genocide, crimes against humanity, or war crimes has been seriously questioned. Some questions have been answered, other have not.

Genocide and Crimes Against Humanity

Article IV of the United Nations (UN) Convention on the Prevention and Punishment of the Crime of Genocide (1948) states: "Persons committing genocide . . . shall be punished, whether they are constitutionally responsible rulers, public officials, or private individuals." Article 7 of the International Law Commission's (ILC's) Draft Code of Crimes Against the Peace and Security of Mankind (1996) states: "The official position of an individual who commits a crime against the peace and security of mankind, even if he acted as head of State or Government, does not relieve him of criminal responsibility or mitigate punishment." These and other authoritative sources clearly indicate that individuals committing crimes against humanity or acts of genocide are individually responsible for them. Even heads of State, when they commit, authorize, attempt, incite, or conspire to commit acts of genocide or crimes against humanity, are personally liable for their actions, their official positions notwithstanding.

But immunity from prosecution is distinct from legal obligation to obey the law, and legal responsibility and immunity are not necessarily irreconcilable. The first question therefore is whether a temporary, procedural bar of immunity applies in the case of international crimes. In its commentary on the abovementioned Draft Code, the ILC stated that Article 7 also aims to prevent an individual from invoking an official position as a circumstance conferring immunity on him, even if that individual claims that the acts constituting the crime were performed in the exercise of his functions.

Second, even if, in principle, the responsibility of dignitaries is accepted, it must be determined which jurisdiction or jurisdictions can prosecute a state or its representative. A judgment of the International Court of Justice (ICJ) of February 14, 2002 (pertaining to Democratic Republic of the Congo (DRC) v. Belgium, whereby the DRC launched proceedings against Belgium for issuing an arrest warrant against the DRC's acting minister for foreign affairs, Abdoulaye Yerodia Ndombasi (Mr. Yerodia), for alleged crimes constituting violations of international humanitarian law), distinguishes between international courts and the national jurisdictions of other states.

International Courts

The statutes of the Nuremberg and the Tokyo tribunals that were created in the aftermath of World War II both contained provisions stating that official immunities could not bar prosecution for genocide-related and other crimes in international courts. In its Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal (the so-called "Nuremberg Principles" of 1950), the ILC stated: "The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible Government official does not relieve him from responsibility under international law" (Principle III). The statutes of the International Criminal Tribunal for the former Yugoslavia (1993), the International Criminal Tribunal for Rwanda (1994), as well as the Special Court for Sierra Leone (2000), contain similar provisions.

The wording in Article 27 of the Rome Statute of the International Criminal Court (ICC, 1998) is even more precise (in rejecting the principle of selective immunity), as it clearly distinguishes between criminal responsibility and immunities, and covers both functional and personal immunities:

1. This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, [or] an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence. 2. Immunities or special procedure rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.

One may conclude that there is a lex specialis, under customary international law, to the effect that, when charged with the offense of genocide, crimes against humanity, or war crimes by an international jurisdiction, no state official is entitled to functional or personal immunities.

For states parties to the ICC statute—as of early 2004, ninety-two states have ratified or acceded to this statute—Article 27 also has an important effect on national immunities law, even that which is established by constitutional law. Read in conjunction with Article 88 (specifically, that "States Parties shall ensure that there are procedures available under their national law for all of the forms of cooperation which are specified under this Part"), Article 27 imposes an obligation on the states parties to amend national legislation, even constitutionally protected immunities of the head of state, in order to be in a position to comply with ICC orders for arrest or surrender.

In its judgment of February 14, 2002 (Democratic Republic of the Congo v. Belgium), the ICJ confirmed the annulment of some immunities before international courts. The court specifically mentions "criminal proceedings before certain international criminal courts, where they have jurisdiction" as one of the circumstances in which the immunity enjoyed under international law by an incumbent or former minister of foreign affairs does not represent a bar to criminal prosecution.

National Jurisdictions

One reading of the ICC statute, favored by Amnesty International and other members of the international coalition of nongovernmental organizations (NGOs) committed to achieving full support for the ICC, holds that the rejection of official immunities with respect to acts of genocide, crimes against humanity, and war crimes applies also to proceedings before national jurisdictions. This is considered to be a consequence of the principle of complementarity that is laid down in the ICC statute (in essence, that the primary role for prosecuting these international crimes remains at the national level), and of the absence of a separate provision in the statute on immunity before national courts.

National proceedings against former Chilean President Augustus Pinochet have also been cited as evidence of the emergence of a new rule of international law denying immunity. Pinochet was arrested in London, on the basis of two arrest warrants issued by U.K. magistrates at the request of Spanish courts for Pinochet's alleged responsibility for the murder of Spanish citizens in Chile, and for conspiracy to commit acts of torture, the taking of hostages, and murder. The alleged crimes were committed while Pinochet held office in Chile as head of state. In its judgment of March 24, 1999, the English House of Lords, which is in effect the country's Supreme Court, held that Pinochet was not entitled to immunity for acts of torture and conspiracy to commit torture, insofar as these acts were committed after the United Kingdom's ratification of the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984). As a result, extradition proceedings were allowed to continue. The judgment was welcomed by the international human rights movement as a great step in the international fight against impunity. However, the precedent value of this judgment is subject to various interpretations. The judgment did not cover the issue of personal immunities of incumbent heads of state. Some judges expressed the opinion that if Pinochet had still been holding office at the time of his arrest, he would have been entitled to personal immunities and thus protected against arrest and extradition proceedings.

In the abovementioned Democratic Republic of the Congo v. Belgium (February 14, 2002), the ICJ ruled, in a thirteen-to-three vote, that the issuance and circulation of the arrest warrant by the Belgian investigating judge against the minister of foreign affairs of the DRC violated international law. The court found that, after a careful examination of state practice, it had been unable to find "any form of exception to the rule according immunity from criminal jurisdiction and inviolability to incumbent ministers for foreign affairs, where they are suspected of having committed war crimes or crimes against humanity." The court also noted that immunities could be invoked in national courts of a foreign state, even when those courts exercise jurisdiction under treaties that deal with the prevention and punishment of certain serious international crimes. The court added that although jurisdictional immunity may bar prosecution for a certain period of time, it does not exonerate the person to whom it applies from criminal responsibility. Emphasizing that immunity does not amount to impunity, the ICJ identified four circumstances under which immunities do not bar criminal prosecution. In the specific context of crimes against humanity, the first two circumstances (criminal prosecution before the domestic legal system or the existence of a waiver of immunity) are highly theoretical. In addition to the abovementioned circumstance of criminal proceedings before certain international criminal courts, the court also referred to the legal standing of former ministers foreign affairs: "[A]fter a person ceases to hold the office of Minister for Foreign Affairs . . . a court of one State may try a former Minister for Foreign Affairs of another State in respect of acts committed prior or subsequent to his or her period of office, as well as in respect of acts committed during that period of office in a private capacity."

Questions That Remain

Despite the illuminations of the ICJ judgment in Democratic Republic of the Congo v. Belgium, several issues remain unclear.

First, it is unclear as to which dignitaries enjoy immunity. The court spoke of the immunities that belong to (but not only to) "certain holders of high-ranking office in a State, such as the Head of State, Head of Government, and Minister for Foreign Affairs." In the ICJ judgment, there is no indication as to whether the same immunities apply to, for instance, a minister of defense, or of education, a state secretary of development cooperation, or a senator-for-life charged with international relations. International comity may require analogous treatment of some other dignitaries, but comity is no source of customary law and analogy is a poor basis on which to build legal rules.

Second, the nature and scope of "acts committed in a private capacity" are undetermined. The court seems to be suggesting—without elaboration or specification—that serious international crimes can be committed either in a private capacity or in an official capacity. The postulation of such a distinction is deplorable, and seems untenable within the specific context of international crimes. It would have been preferable for the court to add, as did several judges in a joint separate opinion and as did several members of the House of Lords in deciding the Pinochet case, that serious international crimes can never be regarded as acts committed in an official capacity because they are neither normal state functions nor functions that a state alone (in contrast to an individual) can perform.

Third, it is not clear what type of activities violate the immunities in question. In Democratic Republic of the Congo v. Belgium, the ICJ found that the issuance of an arrest warrant and its international circulation "significantly interfered with Mr. Yerodia's diplomatic activity," and as a result affected the DRC's international relations. In light of the rationale of the immunities, one might agree with those judges who found, to the contrary, that the mere launching of criminal investigations—which may include the hearing of witnesses—does not necessarily negatively affect the carrying out of of a state's international relations and, therefore, does not in itself violate international law on immunities.

Fourth, the ICJ judgment does not address the issue of how this immunities regime applies in the case of criminal prosecutions before criminal tribunals that are located in between the national and international legal orders, such as the Special Court for Sierra Leone.

Finally, the ICJ judgment addresses the immunity of state representatives who have had criminal proceedings brought against them. It does not address the immunity of a state in the instance of civil actions filed against it and its representatives for monetary damages. In the case of Al-Adsani v. the United Kingdom (November 21, 2001), heard before the European Court of Human Rights, a Kuwaiti applicant, the victim of acts of torture in Kuwait, was denied the right to initiate civil compensation proceedings against Kuwait before a UK court on the basis of the UK's domestic State Immunity Act. With a majority vote of nine-to-eight, the court found no violation of Article 6, Section 1 (declaring the right of access to court) of the European Convention on Human Rights. The court argued as follows: "Notwithstanding the special character of the prohibition of torture in international law, the Court is unable to discern . . . any firm basis for concluding that, as a matter of international law, a State no longer enjoys immunity from civil suits in the courts of another State where acts of torture are alleged." The eight dissenting judges expressed the view that the prohibition of torture, as a peremptory rule of international law, should prevail over State immunity rules, which do not have the same peremptory character. In their view, the United Kingdom should have allowed the applicant to initiate a civil action against Kuwait.

SEE ALSO Amnesty; Convention on the Prevention and Punishment of Genocide; Conventions Against Torture and Other Cruel, Inhuman and Degrading Treatment; International Court of Justice; International Criminal Court; Pinochet, Augusto; Prosecution; Sierra Leone Special Court; War Crimes

BIBLIOGRAPHY

Bianchi, Andrea (1999). "Immunity versus Human Rights: The Pinochet Case." European Journal of International Law 10:237–278.

Bröhmer, Jürgen (1997). State Immunity and the Violation of Human Rights. The Hague: Nijhoff Publishers.

Bröhmer, Jürgen (2000). "Immunity of a Former Head of State. General Pinochet and the House of Lords: Part Three." Leiden Journal of International Law 13:229–238.

Cassese, Antonio (2002). "When May Senior State Officials Be Tried for International Crimes? Some Comments on The Congo v. Belgium Case." European Journal of International Law 13:853–876.

De Hoogh, Andreas (1996). Obligations Erga Omnes and International Crimes: A Theoretical Inquiry into the Implementation and Enforcement of the International Responsibility of States. The Hague: Kluwer Law International.

Denza, Eileen (1998). Diplomatic Law. A Commentary on the Vienna Convention on Diplomatic Relations, 2nd edition. Oxford, U.K.: Clarendon Press.

Fox, Hazel (2002). The Law of State Immunity. Oxford, U.K.: Oxford University Press.

Karagiannakis, Magdalini (1998). "State Immunity and Fundamental Human Rights." Leiden Journal of International Law 11:9–43.

Romano, Cesare P. R., and Andre Nollkaemper. "The Arrest Warrant against the Liberian President Charles Taylor." American Society of International Law. Available from http://www.asil.org/insights/insigh110.htm.

Zappala, Salvatore (2001). "Do Heads of State in Office Enjoy Immunity from Jurisdiction for International Crimes? The Ghaddafi Case before the French Cour de Cassation." European Journal of International Law 12:595–612.

Marc Bossuyt
Stef Vandeginste

IMMUNITY

Exemption from performing duties that the law generally requires other citizens to perform, or from a penalty or burden that the law generally places upon other citizens.

Sovereign Immunity

sovereign immunity prevents a sovereign state or person from being subjected to suit without its consent.

The doctrine of sovereign immunity stands for the principle that a nation is immune from suit in the courts of another country. It was first recognized by U.S. courts in the case of The Schooner Exchange v. M'Faddon, 11 U.S. (7 Cranch) 116, 3 L. Ed. 287 (1812). At first, courts espoused a theory that provided absolute immunity from the jurisdiction of a U.S. court for any act by a foreign state. But beginning in the early 1900s, courts relied on the political branches of government to define the breadth and limits of sovereign immunity.

In 1952, the U.S. state department reacted to an increasing number of commercial transactions between the United States and foreign nations by recognizing foreign immunity only in noncommercial or public acts, and not in commercial or private acts. However, it was easily influenced by foreign diplomats who requested absolute sovereign immunity, and the application of sovereign immunity became inconsistent, uncertain, and often unfair.

Complaints about inconsistencies led to the passage of the Foreign Sovereign Immunities Act of 1976 (28 U.S.C.A. §§ 1 note, 1330, 1332, 1391, 1441, 1602–1611). By that act, Congress codified the theory of sovereign immunity, listing exceptions for certain types of acts such as commercial acts, and granted the exclusive power to decide sovereign immunity issues to the courts, rather than to the State Department.

Indian tribes have been granted sovereign immunity status by the United States, and therefore they generally cannot be sued without the consent of either Congress or the tribe. This immunity is justified by two considerations: First, historically, with more limited resources and tax bases than other governments, Indian tribes generally are more vulnerable in lawsuits than are other governments. Second, granting sovereign nation status to tribes is in keeping with the federal policy of self-determination for Indians.

Indian tribes are immune from suit whether they are acting in a governmental or a proprietary capacity, and immunity is not limited to acts conducted within a reservation. However, individual members of a tribe do not receive immunity for their acts; only the tribe itself is immune as a sovereign nation.

Governmental Tort Immunity

Sovereign immunity may also apply to federal, state, and local governments within the United States, protecting these governments from being sued without their consent. The idea behind domestic sovereign immunity—also called governmental tort immunity—is to prevent money judgments against the government, as such judgments would have to be paid with taxpayers' dollars. As an example, a private citizen who is injured by another private citizen who runs a red light generally may sue the other driver for negligence. But under a strict sovereign immunity doctrine, a private citizen who is injured by a city employee driving a city bus has no cause of action against the city unless the city, by ordinance, specifically allows such a suit.

Governmental tort immunity is codified at the federal level by the federal tort claims act (28 U.S.C.A. § 1291 [1946]), and most states and local governments have similar statutes. Courts and legislatures in many states have greatly restricted, and in some cases have abolished, the doctrine of governmental tort immunity.

Official Immunity

The doctrine of sovereign immunity has its roots in the law of feudal England and is based on the tenet that the ruler can do no wrong. Public policy grounds for granting immunity from civil lawsuits to judges and officials in the executive branch of government survive even today. Sometimes known as official immunity, the doctrine was first supported by the U.S. Supreme Court in the 1871 case of Bradley v. Fisher, 80 U.S. 335, 20 L. Ed. 646. In Bradley, an attorney attempted to sue a judge because the judge had disbarred him. The Court held that the judge was absolutely immune from the civil suit because the suit had arisen from his judicial acts. The Court recognized the need to protect judicial independence and noted that malicious or improper actions by a judge could be remedied by impeachment rather than by litigation.

Twenty-five years later, in Spalding v. Vilas, 161 U.S. 483, 16 S. Ct. 631, 40 L. Ed. 780 (1896), the Court expanded the doctrine to include officers of the federal Executive Branch. In Spalding, an attorney brought a defamation suit against the U.S. postmaster general, who had circulated a letter that criticized the attorney's motives in representing local postmasters in a salary dispute. At that time, the postmaster general was a member of the president's cabinet. The Court determined that the proper administration of public affairs by the Executive Branch would be seriously crippled by a threat of civil liability and granted the postmaster general absolute immunity from civil suit for discretionary acts within the scope of the postmaster's authority. Federal courts since Spalding have continued to grant absolute immunity—a complete bar to lawsuits, regardless of the official's motive in acting—to federal executive officials, so long as their actions are discretionary and within the scope of their official duties.

Members of Congress and state legislators are absolutely immune from civil lawsuits for their votes and official actions. The U.S. Supreme Court, in Bogan v. Scott-Harris, 523 U.S. 44, 118 S. Ct. 966, 140 L. Ed. 2d 79 (1998), extended absolute immunity to local legislators (e.g., city council members, and county commissioners) when they act in their legislative, rather than administrative, capacities.

Prosecutors are absolutely immune for their actions during a trial or before a grand jury. However, during the investigatory phase, they are only granted qualified immunity. In Kalina v. Fletcher, 522 U.S. 118, 118 S. Ct. 502, 139 L. Ed. 2d 471 (1997), the U.S. Supreme Court ruled that a prosecutor was not entitled to absolute immunity with respect to her actions in making an allegedly false statement of fact in an affidavit supporting an application for an arrest warrant. Policy considerations that merited absolute immunity included both the interest in protecting a prosecutor from harassing litigation that would divert his or her time and attention from official duties and the interest in enabling him or her to exercise independent judgment when deciding which suits to bring and in conducting them in court. These considerations did not apply when a prosecutor became an official witness in swearing to a statement.

However, in Conn v. Gabbert, 526 U.S. 286, 119 S. Ct. 1292, 143 L. Ed. 2d 399 (1999), the U.S. Supreme Court held that prosecutors cannot be sued for having lawyers searched or for interfering with the ability to advise a client who is appearing before a grand jury. Prosecutors have a qualified immunity in this situation, based on the two-step analysis that the courts apply to qualified-immunity issues. Under this two-part test, an Executive Branch official will be granted immunity if (1) the constitutional right that allegedly has been violated was not clearly established; and (2) the officer's conduct was "objectively reasonable" in light of the information that the officer possessed at the time of the alleged violation. The qualified-immunity test is usually employed during the early stages of a lawsuit. If the standard is met, a court will dismiss the case.

Police and prison officials may be granted qualified immunity. In Hope v. Pelzer, 536 U.S. 730, 122 S. Ct. 2508, 153 L. Ed. 2d 666 (2002), the U.S. Supreme Court held that Alabama prison officials were not eligible for qualified immunity because they were on notice that their conduct violated established law even in novel factual circumstances. The officials were on notice that tying a prisoner to a hitching post in the prison yard constituted cruel and unusual punishment under the eighth amendment.Prior court rulings and federal prison policies also made clear that law banning the practice had been clearly established. Therefore, the officials were not qualified for immunity.

In Saucier v. Katz, 533 U.S. 194, 121 S. Ct. 2151, 150 L. Ed.2d 272 (2001), the U.S. Supreme Court applied the qualified-immunity test to a claim that a u.s. secret service agent had used excessive force in removing a protester. The Court reasserted its general belief that law officers must be given the benefit of the doubt that they acted lawfully in carrying out their day-today activities. Moreover, one of the main goals of qualified immunity is to remove the defendant from the lawsuit as quickly as possible, thereby reducing legal costs. Justice anthony kennedy restated the principle that immunity is not a "mere defense" to liability but an "immunity from suit." Therefore, immunity issues must be resolved as early as possible. As to the first step, Kennedy agreed that the case revealed a "general proposition" that excessive force is contrary to the fourth amendment. However, a more specific inquiry must take place to see whether a reasonable officer "would understand that what he is doing violates that right." As to this second step, Justice Kennedy rejected the idea that because the plaintiff and the officer disputed certain facts, there could be no short-circuiting of this step. He stated that the "concern of the immunity inquiry is to

acknowledge that reasonable mistakes can be made as to the legal constraints on particular police conduct." Officers have difficulty in assessing the amount of force that is required in a particular circumstance. If their mistake as to "what the law requires is reasonable, however, the officer is entitled to the immunity defense."

In Nixon v. Fitzgerald, 457 U.S. 731, 102 S. Ct. 2690, 73 L. Ed. 2d 349 (1982), the U.S. Supreme Court held that former U.S. president richard m. nixon was entitled to absolute immunity from liability predicated on his official acts as president. In Nixon, a weapons analyst, A. Ernest Fitzgerald, had been fired by the U.S. Air Force after he had disclosed to Congress certain cost overruns within the defense department. Fitzgerald sued Nixon and two former presidential aides for wrongful retaliatory termination.

The Court emphasized the singular importance of the duties of the president, and noted that the diversion of the president's energies over concern for private lawsuits "would raise unique risks to the effective functioning of government." It also observed that the president, in view of the visibility of the office, would be an easy target for civil lawsuits. The ensuing personal vulnerability and distraction would prove harmful to the nation.

Despite the Court's grant of absolute immunity to the president for official actions, a president does not have immunity from civil lawsuits for actions that allegedly occurred before becoming president. The Court, in Clinton v. Jones, 520 U.S. 681, 117 S. Ct. 1636, 137 L. Ed. 2d 945 (1997), ruled that President bill clinton had to defend himself in a sexual-harassment lawsuit that was based on his alleged actions while governor of Arkansas. Clinton had contended that the lawsuit could not proceed until he left office, but the Court disagreed. The Court pointed out that grants of official immunity are based on a functional analysis, and it would not extend immunity to actions outside of an office-holder's official capacities. Moreover, it concluded that defending the lawsuit would not divert Clinton's energies.

Immunity from Prosecution

State and federal statutes may grant witnesses immunity from prosecution for the use of their testimony in court or before a grand jury. Sometimes, the testimony of one witness is so valuable to the goals of crime prevention and justice that the promise of allowing that witness to go unpunished is a fair trade. For example, a drug dealer's testimony that could help law enforcement to destroy an entire illegal drug-manufacturing network is more beneficial to society than is the prosecution of that lone drug dealer. Although the fifth amendment to the U.S. Constitution grants witnesses a privilege against self-incrimination, the U.S. Supreme Court has permitted prosecutors to overcome this privilege by granting witnesses immunity. Prosecutors have the sole discretion to grant immunity to witnesses who appear before a grand jury or at trial.

States employ one of two approaches to prosecutorial immunity: Use immunity prohibits only the witness's compelled testimony, and evidence stemming from that testimony, from being used to prosecute the witness. The witness still may be prosecuted so long as the prosecutor can obtain other physical, testimonial, or circumstantial evidence apart from the witness's testimony. Transactional immunity completely immunizes the witness from prosecution for any offense to which the testimony relates.

Congressional committees have the power to grant testimonial immunity to witnesses who testify before members of Congress. Congressional investigations into allegations of misconduct—such as the watergate investigations in the 1970s and the iran-contra investigations in the 1980s—rely heavily on witness testimony. Whereas prosecutors simply decide whether to grant immunity to a witness, congressional committees must follow more formal procedures. Immunity may be granted only after a two-thirds majority vote by members of the committee. Ten days before the immunized testimony is given, the committee must advise the justice department or the independent counsel of its intention to grant immunity.

Family Immunity

At common law, a child could sue a parent for breach of contract and for torts related to property. An adult could sue his or her parent for any tort, whether personal or related to property. In 1891, the Mississippi Supreme Court, in Hewllette v. George, 9 So. 885 (1891), held that a child could not seek compensation for personal injury that was caused by a parent's wrongdoing, so long as the parent and child were obligated by their family duties to one another. The decision was based not on precedent but rather on public policy: The court found that such a lawsuit would undermine the "peace of society and of the families composing society." Criminal laws, the court found, were adequate to protect children.

Other states fell in step with Mississippi, adopting parental immunity of varying degrees. Some parental-immunity laws prohibited only claims of negligence, whereas others prohibited lawsuits for intentional torts such as rapes and beatings. The rationale supporting parental-immunity laws includes the need to preserve family harmony and, with the availability of liability insurance, the need to prevent parents and the children from colluding to defraud insurance companies.

Unjust results have led courts in many states that espouse parental immunity to carve out exceptions to the rule. For example, a child usually can sue a parent for negligence when the parent has failed to provide food or medical care, but not when the parent has merely exercised parental authority. Most courts have abolished the parental-immunity defense for car accident claims, and many allow children to sue their parents for negligent business or employment actions. Courts normally permit wrongful death suits to be brought by a child against a parent or by a parent against a child, because death terminates the parent-child relationship. Moreover, most states allow a child to sue a parent for injuries suffered in utero owing to the negligence of the mother.

further readings

Fox, Hazel. 2002. The Law of State Immunity. Oxford; New York: Oxford University Press.

Giuttari, Theodore R. 1970. The American Law of Sovereign Immunity; An Analysis of Legal Interpretation.New York: Praeger.

Sels, John van Loben. 1995."From Watergate to Whitewater: Congressional Use Immunity and Its Impact on the Independent Counsel." Georgetown Law Journal 83.

Stein, Theodore P. 1983. "Nixon v. Fitzgerald: Presidential Immunity as a Constitutional Imperative." Catholic University Law Review 32 (spring).

cross-references

Ambassadors and Consuls; Diplomatic Immunity; Feres Doctrine; Husband and Wife; Judicial Immunity.

Immunity

Exemption from performing duties that the law generally requires other citizens to perform, or from a penalty or burden that the law generally places on other citizens.

Rogers v. City of Kennewick

Under 42 U.S.C.A. §1983, a person may sue a police officer for violating a constitutional right or statute. Over the course of 30 years, the U.S. Supreme Court has developed the doctrine of qualified immunity for police officers as a way to shield them from civil liability. Under this doctrine a police officer who is sued for excessive force may not be sued if the officer's actions were reasonable and the constitutional right supposedly violated was not clearly established under the law. Qualified immunity is asserted immediately after a person sues an officer by a motion to the court, thereby forcing a judge to make a determination before the litigation accelerates and legal bills begin to rise. If the officer is denied qualified immunity by the trial court, the matter is subject to immediate appeal.

These procedures were reviewed by the Ninth Circuit Court of Appeals in Rogers v. City of Kennewick, 205 Fed. Appx. 491 (9th Cir. 2006), where several police officers challenged the denial of qualified immunity. The court upheld the lower court, finding that the officers were did not act reasonably in deploying a police dog on a suspect who was severely bitten by the dog.

At 1:00 a.m. on July 13, 2003, a suspect on a moped was being pursued in the city of Kennewick, Washington for two traffic infractions and a misdemeanor violation for failing to stop when signaled by police. Police did not have any evidence that he was armed or dangerous, yet they treated these minor crimes as a serious matter. That night Ken Rogers, a 50-year-old salesman, had gone to his daughter's house to stay but she had inadvertently locked the house with the dead bolt. Rogers decided to sleep in the fenced backyard. Sgt. Richard Dopke, who had chased the moped driver, tracked him to a garage next to where Rogers was sleeping. He requested police dog backup.

Officer R.B. Kohn arrived with his dog Deke. Kohn sent Deke into the yard where Rogers was sleeping, believing that he might be the suspect. Rogers was awakened by noises coming from the house and suspected that it was being burglarized. He yelled and asked what was going on. A few seconds later Deke attacked him. As he fought off the dog, which was biting into his left arm, Rogers was hit with a baton or blunt object by one of the officers. He was arrested but later released when police discovered he was not the moped driver. Rogers suffered permanent injuries, including hearing loss. He then sued the two officers and the city under §1983, alleging that they had committed an unconstitutional search and seizure under the Fourth Amendment.

Dopke and Kohn immediately filed motions to dismiss the case, claiming they were entitled to qualified immunity. The district court denied the motions, finding that the officers made an unconstitutional seizure of Rogers in violation of the Fourth Amendment. The officers then appealed to the Ninth Circuit Court of Appeals.

A three-judge panel of the Ninth Circuit upheld the district court. The appeals rejected the officers' claim that they had not violated the Fourth Amendment because they did not intend to seize Rogers. The court noted that a seizure occurs even when an unintended person is the object of detention and the officer acts willfully in detaining the person. Kohn acted intentionally because he had control over the dog when it bit Rogers and he had "effectively ordered the dog to find and bite the individual he was tracking." Therefore, it was of "no legal consequence" whether the officers intended to restrain Rogers or an unidentified person. The court then examined the two-part immunity test: whether a constitutional right violated, and, if so, whether the right was clearly established.

The key in Rogers' case was whether the seizure was reasonable; if unreasonable the search would violate the Fourth Amendment. The court cited the minor severity of the crime, the lack of any evidence that the suspect posed a threat to the safety of the officers, and the fact the suspect was not trying to evade arrest by flight to sustain its ruling that the seizure of Rogers was unreasonable. As to whether this right was clearly established, case law demonstrated that the failure to give a warning before releasing a police dog to bite and hold is unreasonable. Moreover, releasing the dog into the yard without a warrant was unreasonable as was allowing the dog to bite Rogers for over one minute. Therefore, the district court properly denied the officers qualified immunity.

In addition, Sgt. Dopke had argued he should not be liable because he was not present when the dog attacked Rogers. The appeals court found that clearly established law made a supervisor liable for the actions of subordinates if he "sets in motion a series of acts by others." Department policy prohibited officers from "pursuits" of suspects of traffic misdemeanors, which Dopke violated. Therefore, Rogers must be allowed to pursue the officers in the civil lawsuit.

Scott v. Harris

In Scott v. Harris, No. 05-1631, 550 U.S. __(2007), the U.S. Supreme Court held that a high speed police chase ending in a serious crash after police forced the vehicle off the road, did not constitute an unreasonable seizure under the Fourth Amendment to the U.S. Constitution. Accordingly, the police officer was entitled to qualified immunity and summary judgment. The decision reversed the ruling of the U.S. Court of Appeals for the 11th Circuit.

On the night of March 21, 2001, a police officer clocked Victor Harris' vehicle traveling at a high rate of speed and pursued him in his police vehicle, with lights flashing. Harris refused to stop, continuing at speeds between 80 and 90 m.p.h. He ran several red lights as well as crossed over double-yellow traffic lines in order to pass other drivers.

Another officer, Deputy Timothy Scott, heard about the pursuit on his dispatch radio and joined the chase without knowing why Harris was being pursued. After Harris' vehicle entered a highway, Scott radioed his supervisor for permission to perform a Precision Intervention Technique (PIT) maneuver on Harris's car. When done correctly, the maneuver's impact causes a fleeing car into a spin before eventually bringing it to a stop. Scott's supervisor responded to "[g]o ahead and take him out."

However, Scott (or any police officer in the county) was not trained in how to execute a PIT maneuver. He had the foresight to wait until other motorists were out of the area, then rammed his front bumper into Harris' vehicle. Harris' car went out of control and rolled down an embankment. Harris, who was not wearing a seatbelt, sustained serious injuries which rendered him a quadriplegic.

Harris filed suit in the U.S. District Court for the Northern District of Georgia, charging that under Tennessee v. Garner, 471 U.S. 1 (1985), Scott's use of force was unreasonable and unconstitutional under the Fourth Amendment. The district court denied Scott's motion for summary judgment based on qualified immunity. The Eleventh Circuit Court of Appeals affirmed on interlocutory appeal, concluding that Scott's actions could constitute "deadly force" under Tennessee v. Garner. Further, held the appellate court, a reasonable jury could find that use of such force in this context was a violation of Harris' constitutional right to be free from excessive force during a seizure. As such, Scott's qualified immunity in this case was a matter of factual dispute and not one of law, so dismissal by summary judgment was inappropriate.

In reversing the 11th Circuit, Justice Scalia delivered the opinion of the Court. Qualified immunity, noted the Court, requires resolution of a threshold question: taken in the light most favorable to the injured party, do the alleged facts show the officer's conduct violated a constitutional right?

However, as a preliminary issue, the Court further noted that a videotape capturing the chase unequivocally contradicted Harris' rendition of facts, to the point that no reasonable jury would believe Harris' version. Therefore, the above test for qualified immunity should be done by viewing the facts in the light depicted by the videotape.

Next, the matter of Harris' cited precedent regarding deadly force, Tennessee v. Garner. In that case, the Supreme Court stated that "deadly force" could be used when (1)an officer had probable cause to believe that a suspect posed a threat of serious harm to the officer or others; or the suspect uses a weapon to threaten the officer; or there was probable cause to believe that the suspect committed a crime involving the infliction or threat of infliction of serious physical harm; (2)the force was necessary to prevent escape; and (3) some warning had been given.

Viewing the facts in the light as depicted by the videotape, the Court concluded, it was clear that Deputy Scott did not violate the Fourth Amendment. The car chase initiated by Harris posed a substantial and immediate risk of serious physical injury to others. Scott's attempt to force Harris off the road was reasonable under the facts, and Scott was entitled to summary judgment.

The Court's opinion also noted that Tennessee v. Garner did not establish a magical on/off switch triggering rigid preconditions whenever an officer's actions constituted "deadly force." The Garner Court simply applied the Fourth Amendment's 'reasonableness' test to the use of particular force in those particular circumstances. This case had vastly different facts. Whether or not Scott's actions constituted deadly force, those actions were reasonable in this case.

Justice Stevens was the lone dissenter. He essentially characterized the issue as one where the officer was placing the fleeing motorist at risk of serious injury or death in order to stop the motorist's flight from endangering the lives of innocent bystanders. The answer could be yes or no, and the question of reasonableness should be decided by a jury. Stevens also objected to the de novo (for the first time) review of the videotape to establish the facts.

Immunity

Exemption from performing duties that the law generally requires other citizens to perform, or from a penalty or burden that the law generally places on other citizens.

Hartman v. Moore

Under Supreme Court precedent, persons who believe that federal officers have violated their civil rights may file a claim for damages against these officers. The Court established this constitutional tort in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). In the 35 year history of this cause of action the Court has been called upon to assess whether federal officers are entitled to absolute or qualified immunity from such lawsuits. The Court has also examined what elements must be shown to trigger Bivens liability. In Hartman v. Moore, __U.S.__, 126 S.Ct. 1695, __L.Ed.2d __ (2006), the Court held that in a retaliatory prosecution lawsuit, the plaintiff must plead and show the absence of probable cause for pressing the underlying criminal charges.

The underlying issues in the case reach back to the early 1980s, when the U.S. Postal Service (USPS) introduced the four-number extension to the five-number zip code. William Moore, the chief executive office of Recognition Equipment, Inc.(REI), a company that made optical scanning technology, tried to interest the USPS in multi-line character readers to read the new nine-digit zip codes. In 1983 the USPS announced it would continue to use its single-line character readers, which lead Moore to lobby the USPS board of governors and members of Congress to overturn this decision. The General Accounting Office (GAO) and the Office of Technology Assessment issued reports that supported Moore's arguments for multi-line readers, pointing out the postal service was losing $1 million per day by using the single-line readers. In 1985 the board of governors reversed course and agreed to change to the multi-line readers. Despite this victory, Moore and REI did not benefit, for the postal service awarded the multi-million contracts for new readers to other firms. In addition, postal service inspectors opened investigations concerning purporting kickbacks by a public relations firm retained by REI to a postal service governor and REI's alleged improper role in selecting a new Postmaster General. Though the evidence against Moore and REI was very limited, the assistant U.S. attorney brought criminal charges against them in 1988. A federal district court judge acquitted the defendants on all charges after six weeks of trial after finding a "complete lack of evidence."

Moore then brought a Bivensaction against the prosecuting attorney and the postal inspectors, alleging his prosecution was in retaliation for his criticism of the USPS, which was a violation of his First Amendment rights. The federal district court granted absolute immunity to the prosecutor but allowed the case against the inspectors to proceed. Over the course of ten years the case was litigated in the district and appellate courts without reaching trial. The inspectors argued that they should be granted qualified immunity because the underlying criminal charges had been supported by probable cause but failed to convince the Court of Appeals for the District of Columbia. The Supreme Court agreed to hear the inspectors' appeal to resolve a split in the circuit courts of appeals over whether a plaintiff needed to provide evidence of lack of probable cause to prevail in a retaliatory prosecution Bivens action.

The Court, in a 5-2 decision, overturned the appeals court ruling and found that a lack of probable cause needed to be proven by the plaintiff. (Chief Justice John Roberts did not participate in the consideration of the case because he had recently served on the D.C. Circuit; Justice Samuel Alito did not participate because he had been confirmed after the case had been argued.) Justice David Souter, writing for the majority, noted that the postal inspectors posited two main arguments for making the lack of probable cause an essential element. First, they claimed that without this requirement it would make it too easy for disgruntled criminal defendants to simply allege "a retaliatory animus, a subjective condition too easy to claim and too hard to defend against." An objective element, the lack of probable cause, was needed to filter out frivolous litigation. Second, the inspectors contended that the traditional tort of malicious prosecution was similar to a retaliatory prosecution action; in that tort the plaintiff was required to prove lack of probable cause. Though Justice Souter agreed with the idea of an objective fact requirement, he declined to adopt the common law parallel of malicious prosecution and he discounted the concern over frivolous litigation; fewer than two dozen retaliatory prosecutions had been filed under Bivens in the past 25 years.

Justice Souter instead based his reasoning on "the need to prove a chain of causation from animus to injury, with details specific to retaliatory-prosecution cases." If the plaintiff can demonstrate there was no probable cause for the criminal charge it will reinforce the retaliation evidence. If the plaintiff cannot show lack of probable cause it "will suggest that prosecution would have occurred even without a retaliatory motive." The need for this element was also imperative in a case such as this one, where the postal inspectors did not make the prosecutorial decision to bring charges. Moore needed to show that the inspectors acted in retaliation and also "induced the prosecutor to bring charges that would not have been initiated without his urging."

Justice Ruth Bader Ginsburg, in a dissenting opinion joined by Justice Stephen Breyer, argued that the burden of proving lack of probable cause should be placed with the postal inspectors. The Court's decision meant that "only entirely 'baseless prosecutions' would be checked." Evidence that was "barely sufficient" to support probable cause would allow federal officers to "accomplish their mission" of retaliatory prosecution.