Knocking on Wood: Some Thoughts on the Immunities of State Officials to Civil Rights Damage Actions

Recent developments suggest that even without congressional action municipalities and other subdivisions of the state not protected by the eleventh amendment may be subject to liability for the actions of their officers. Presently, however, an aggrieved individual's primary remedy is recovery of damages from the offending officers. This right of recovery hinges on whether the officer should have understood the unconstitutional effect of his actions. Although the need for uniformity in the standard of liability, in the burden of proof, and in the scope of official defenses and immunities is acute, neither the courts nor the commentators have articulated a consistent or principled standard by which to judge what government officials should know.

This Article examines the relation in constitutional tort actions between the various defenses and immunities and the prima facie case and suggests just solutions to the difficulties the courts have encountered in determining the scope of these immunities and the burdens of proof.