The Complicated Web of Immunities That Makes Accountability So Difficult

Part 1 of 2.

OA 1229 - What happens when a government worker does you wrong? How is it different to prosecute and sue them? When does qualified immunity come in to play?

We discuss the steps involved in prosecuting and suing someone for a simple battery, and how that differs for a regular person versus a state actor. We cover how and when defenses can be raised, federal and state sovereign immunity, suing in official versus personal capacity, the difference between absolute and qualified immunities, and the ways this will apply differently to criminal prosecution versus civil litigation.

• Siegell v Herricks Union Free School District, 7 AD3d 607 [2d Dept 2004] (Elements of civil battery in NY)

• N.Y. Penal Law § 120 (NY criminal “battery”)

• Fla. Stat. § 776.032 (Florida self-defense as an affirmative defense and immunity)

• Ohio Rev. Code § 2901.05 (Ohio self-defense as a standard defense)

• N.Y. Penal Law § 35 (NY justification defenses)

• Roger Fairfax, The Grand Jury’s Role in the Prosecution of Unjustified Police Killings - Challenges and Solutions, 52 Harvard Civil Rights-Civil Liberties Law Review 397 (2017).

• Michael Gentithes, Harvesting the Grand Jury’s “Lay Expertise” in Officer-Involved Shootings, U. Ill. L. Rev. 989 (2025).

• In re Neagle, 135 U.S. 1 (1890)

• Gregory C. Sisk, A Primer on the Doctrine of Federal Sovereign Immunity, 439 Okla. L. Rev. 58 (2005).

• 28 U.S.C. § 2680(h)

• Miles McCann, State Sovereign Immunity, National Association of Attorneys General (Nov. 11, 2017)

• State Sovereign Immunity - Generally, Interstate Commission for Juveniles, https://www.juvenilecompact.org/bench-book/chapter-6-1

• Ex Parte Young, 209 U.S. 123 (1908)

• Scheuer v. Rhodes, 416 U.S. 232 (1974)

• Moor v. County of Alameda, 411 U.S. 693 (1973)

• O’Shea v Littleton, 414 U.S. 488 (1974)

• Judicial Immunity at the (Second) Founding: A New Perspective on § 1983, 136 Harvard L. Rev. 1456 (2023).

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