Suing Social Workers Under Section 1983: Prosecutorial Immunity?
October 20, 2005
Are social workers entitled to absolute immunity when they decide to
initiate custodial termination proceedings against a parent? This is a
fascinating question, and it's an issue the Supreme Court has not
squarely addressed. Today the Eighth Circuit joined several other
circuits in holding that social workers, when they seek to terminate
custodial rights, are acting like prosecutors, and therefore are
entitled to absolute immunity. Wrote the court:
[T]he district court correctly applied absolute immunity to shield the defendants from liability for initiating or maintaining judicial proceedings. To the extent a state authorized child welfare agency and its worker are sued for initiating judicial proceedings, the welfare worker’s role was functionally comparable to that of a prosecutor. Accordingly the decision to file charges is protected, even in the face of accusations of: vindictive prosecution, or reckless prosecution without jurisdiction, or conspiracy to prosecute for a crime that never occurred.
Abdouch v. Burger, No. 04-3966, slip op. at 10 (8th Cir. Oct. 20, 2005). UPDATE: In his briefs, Abdouch's lawyer wrote: plaintiff "does not question the initiation of the abuse and
neglect proceeding." The panel, although ultimately deciding for the
social worker because the plaintiff did not state a prima facie case,
thus inserted the quoted language to clarify the law. (It's dicta,
but it's dicta that will remain.) Although the briefs for the
plaintiff were generally excellent, they missed the important issue of
social worker immunity, and they do not argue for a historical inquiry
under Justice Thomas' theory noted below. Indeed, in two briefs (appellant, reply)
the plaintiffs only spent 2 pages discussing absolute immunity at all,
and even those two pages only peripherally touch the issue. Whether
the social worker would have been entitled to absolute immunity is an
issue that someone well versed in this area of law would have
immediately spotted. This is yet another example where even very good
lawyers (and the plaintiff's lawyers, judging by their writing
abilities, were excellent) miss issues in Section 1983 cases.
I'm not sure any members of the Supreme Court care to hear the case, so I'm not filing this under "Cert. Watch," but over ten years ago Justices Thomas and Scalia had this to say about absolute immunity for social workers:
Consideration of the function performed by an official seeking absolute immunity plays an important role in our immunity analysis. Function, however, becomes significant only when evaluated in historical context. A related inquiry precedes the functional analysis: Our initial inquiry is whether an official claiming immunity under § 1983 can point to a common-law counterpart to the privilege he asserts. Although § 1983 on its face admits of no defense of official immunity, certain immunities were so well established in 1871, when § 1983 was enacted, that 'we presume that Congress would have specifically so provided had it wished to abolish' them. We therefore have held that some officials are, under certain circumstances, entitled to absolute immunity. An official seeking such immunity, however, must at the outset show that a counterpart to the privilege he asserts was recognized at common law in 1871, for where we have found that a tradition of absolute immunity did not exist as of 1871, we have refused to grant such immunity under § 1983.
The courts that have accorded absolute immunity to social workers appear to have overlooked the necessary historical inquiry; none has seriously considered whether social workers enjoyed absolute immunity for their official duties in 1871. If they did not, absolute immunity is unavailable to social workers under § 1983. This all assumes, of course, that "social workers" (at least as we now understand the term) even existed in 1871. If that assumption is false, the argument for granting absolute immunity becomes (at least) more difficult to maintain.
Hoffman v. Harris, 114 S. Ct. 1631 (1994) (Thomas, J., dissenting from denial of cert.)