Did the Supreme Court's Hafer v. Melo decision expose Maryland prosecutors to new personal liability for doing their jobs?

Plain-English summary

Howard County's State's Attorney asked the Attorney General whether the U.S. Supreme Court's newly decided Hafer v. Melo case exposed him and other prosecutors to new personal liability for doing their official jobs. Hafer had held that state officers could be personally sued for damages under the federal civil rights statute, 42 U.S.C. §1983, based on actions taken in their official capacities, rejecting the argument that officials could never be held personally liable for official-capacity conduct.

The Attorney General concluded that Hafer changed nothing for Maryland prosecutors in practice. The opinion explained that Hafer was really about who counts as a proper defendant, not about what defenses a defendant can raise: state officials can be sued personally for civil rights violations committed under color of state law, but they can still assert the same absolute and qualified immunity defenses the law had always recognized. For prosecutors specifically, the opinion traced a line of Supreme Court cases holding that absolute immunity protects prosecutorial functions closely tied to the judicial phase of a criminal case, such as initiating and pursuing a prosecution or seeking a search warrant at a probable cause hearing, while more investigative or administrative conduct, like advising police on interview tactics before an indictment, gets only qualified immunity. Since Hafer left this immunity framework untouched, the opinion concluded State's Attorneys and other prosecutors kept the same protections they had before the decision.

Currency note

This opinion was issued in 1992. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here, particularly the current scope of prosecutorial absolute and qualified immunity under Section 1983, which the Supreme Court has continued to refine in cases decided after 1992.

Common questions

Did Hafer v. Melo make it easier to sue a Maryland prosecutor personally for money damages?
Not according to this opinion. The Attorney General concluded that Hafer confirmed state officials, including prosecutors, could in principle be sued personally for civil rights violations under Section 1983, but it left fully intact the absolute and qualified immunity defenses that had already protected prosecutors from most such claims.

What kind of prosecutorial conduct was protected by absolute immunity under this opinion?
Conduct intimately tied to the judicial phase of a criminal case, such as pursuing a prosecution or seeking a search warrant at a probable cause hearing after an arrest. The opinion traced this rule to Imbler v. Pachtman and its progeny, including Burns v. Reed.

What kind of prosecutorial conduct only got qualified immunity, not absolute immunity?
More investigative or administrative activity, such as a prosecutor's pre-indictment advice to police about interview tactics, was treated as outside the judicial phase of the process and protected only by qualified immunity rather than absolute immunity.

Does a lawsuit against a Maryland official "in their official capacity" work the same way as one against them personally?
No. The opinion noted that a suit against a state official in their official capacity is really a suit against the state itself, and that neither the state nor officials sued in their official capacity count as "persons" who can be sued under Section 1983 at all, a rule Hafer did not disturb.

Background and statutory framework

Section 1983 of Title 42 of the U.S. Code provides a federal cause of action against a person who, acting under color of state law, deprives someone of rights secured by the Constitution or federal law. In Hafer v. Melo, the Supreme Court held that a state official could be personally liable under Section 1983 for actions taken within their official duties, rejecting the theory that official-capacity conduct could never generate personal liability, reasoning that such a rule would effectively grant state officials absolute immunity from personal suit for anything done within their authority, a result inconsistent with the Court's precedent going back to Ex parte Young's recognition that state officers can be personally liable for violating federal rights under color of state law. The opinion noted that Hafer's holding did not touch a separate and distinct rule: suits against officials in their official capacity are treated as suits against the state itself, and neither the state nor officials sued in that capacity are "persons" subject to suit under Section 1983 at all.

Turning to the immunity defenses available once a prosecutor is sued personally, the opinion traced the doctrine from Imbler v. Pachtman, which granted prosecutors absolute immunity for damages arising from prosecutorial functions intimately associated with the judicial phase of a criminal case, through later cases refining where that line falls. Burns v. Reed held that a prosecutor's actions at a probable cause hearing to obtain a search warrant after an arrest were absolutely immune as intimately tied to the judicial process, while the same prosecutor's pre-indictment advice to police about using hypnosis in a witness interview was investigative in character and protected only by qualified immunity. The opinion also noted that qualified immunity itself, as shaped by Harlow v. Fitzgerald, provides substantial protection to officials whose conduct does not violate clearly established rights a reasonable official would have known. Applying this framework, the opinion concluded that Hafer's recognition of personal liability as a theoretical matter did not strip away any of this established immunity protection, so Maryland State's Attorneys and other prosecutors retained the same practical protection from personal damages liability that existed before Hafer was decided.

Citations and references

Statutes:

• 42 U.S.C. §1983, the federal civil rights damages statute at the center of the opinion

Cases:

• Hafer v. Melo, 112 S.Ct. 358 (1991), the Supreme Court decision prompting the opinion request, holding state officials can be personally liable under Section 1983 for official-capacity conduct
• Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989), cited for the rule that states and officials sued in their official capacity are not "persons" under Section 1983
• Scheuer v. Rhodes, 416 U.S. 232 (1974), cited for the principle that Section 1983 reaches those who carry a badge of state authority regardless of whether they act within or misuse it
• Ex parte Young, 209 U.S. 123 (1908), cited for the longstanding doctrine that state officers may be personally liable for violating federal rights under color of state law
• Ritchie v. Donnelly, 324 Md. 344, 597 A.2d 432 (1991), cited as consistent with the Hafer and Scheuer line of cases
• Imbler v. Pachtman, 424 U.S. 409 (1976), cited for prosecutors' absolute immunity for functions intimately associated with the judicial phase of a criminal case
• Hayes v. Hall, 604 F. Supp. 1063 (W.D. Mich. 1989), cited for the broad scope of prosecutorial immunity under Imbler
• Pachaly v. City of Lynchburg, 897 F.2d 723 (4th Cir. 1990), cited for absolute immunity covering a prosecutor's participation in a post-indictment evidentiary search
• Burns v. Reed, 500 U.S. 479 (1991), cited for distinguishing absolutely immune judicial-phase conduct from qualifiedly immune investigative advice
• Mitchell v. Forsyth, 472 U.S. 511 (1985), cited on the limits of absolute immunity for non-prosecutorial national security actions
• Harlow v. Fitzgerald, 457 U.S. 800 (1982), cited for the scope of qualified immunity protections

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1992/Volume77_1992.pdf (this opinion appears at printed page 198 of the bound annual volume; Maryland's site does not publish a standalone PDF of this opinion)

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

STATE'S ATTORNEYS

Civil Rights - Immunity - Hafer v. Melo does not change
IMMUNITY LAW

                               January 8, 1992

The Honorable William R. Hymes
State's Attorney for Howard County

  You have requested our opinion concerning the extent of potential

personal liability that might be imposed on the State's Attorney and other
prosecutors for the performance of the public duties of your office. Your
inquiry is prompted by the Supreme Court's recent decision in Hafer v.
Melo, 112 S.Ct. 358 (1991).

For the reasons stated below, we conclude that Hafer v. Melo does not
change the law that has governed actions brought under 42 U.S.C. §1983
in either federal or State courts in Maryland. Individual State employees
who violate a person's civil rights may be personally liable for any damages
caused. The State employees, however, may assert the well-established
forms of immunity previously recognized in the law.

                                        I

                                Hafer v. Melo

  In Hafer v. Melo, the Supreme Court unanimously held that state

officers may be personally liable for damages under 42 U.S.C. §1983 based
upon actions taken in their official capacities. The Court rejected as
"unpersuasive" the argument that "state officials may not be held liable in
their personal capacity for actions they take in their official capacity." 112
S.Ct. at 363. Such a theory, if accepted, would "absolutely immunize state
officials from personal liability for acts within their authority and necessary
to fulfilling governmental responsibilities," an expansion of absolute
immunity inconsistent with the Court's precedents. Id.1

   The Supreme Court emphasized that its holding does not change

existing law set forth in Scheuer v. Rhodes, 416 U.S. 232, 243 (1974), that
§1983 "enforce[s] provisions of the Fourteenth Amendment against those
who carry a badge of authority of a State and represent it in some capacity,
whether they act in accordance with their authority or misuse it." In
Scheuer v. Rhodes, the governor of Ohio was protected only by qualified
immunity in a §1983 action arising from his actions, taken under color of
state law, during the campus disorder at Kent State University. The
Supreme Court rejected the state executive official's defense of absolute
immunity. Indeed, the Supreme Court's decisions in Hafer and Scheuer
are consistent with the longstanding doctrine of Ex parte Young, 209 U.S.
123, 159-60 (1908), that State officers may be personally liable for
violations of another person's federal rights under the color of state law.
Accord, Ritchie v. Donnelly, 324 Md. 344, 597 A.2d 432 (1991).

                                 II

        Immunities From Personal Liability Under §1983

 Although Hafer reasserted that state officials may be held personally

liable under §1983 for actions taken under color of state law, the Supreme
Court made equally clear that it was not changing the status of personal
immunity defenses. In other words, state officials acting in the course of
their duties may nevertheless be protected from liability by an absolute or
qualified immunity.

    In Imbler v. Pachtman, 424 U.S. 409, 430 (1976), the Supreme

Court granted prosecutors absolute immunity from liability for damages
resulting from prosecutorial functions intimately associated with the
judicial phase of the criminal process. Although the Supreme Court left
open the question whether immunity also attaches to prosecutorial
functions that are administrative or investigative, 424 U.S. at 430-31,
courts have consistently found that "[t]he scope of prosecutorial immunity
under Imbler is wide." Hayes v. Hall, 604 F. Supp. 1063, 1067 (W.D.
Mich. 1989). In Pachaly v. City of Lynchburg, 897 F.2d 723 (4th Cir.
1990), for example, the Fourth Circuit concluded that a prosecutor's
participation in a post-indictment search to obtain evidence to prosecute
is protected by absolute immunity. See Imbler v. Pachtman, 424 U.S. at
431 n.33 (prosecutor's role as advocate for the state includes actions
preliminary to initiation of prosecution and outside the courtroom).

This last Term, the Supreme Court again considered the question of

prosecutorial immunity and resolved one of the questions left open in
Imbler. In Burns v. Reed, 500 U.S. 479, 111 S.Ct. 1934 (1991), the Court
held that a prosecutor was absolutely immune for his actions at a probable
cause hearing to seek a search warrant after an arrest, because such
conduct is intimately associated with the judicial phase of the criminal
process. By contrast, the Court concluded that the prosecutor's pre-
indictment advice to police officers contemplating the use of hypnosis to
interview a suspect was more in the nature of investigative activity and was
protected only by qualified, not absolute, immunity. See also Mitchell v.
Forsyth, 472 U.S. 511, 521-22 (1985) (U.S. Attorney General's actions in
furtherance of national security were not prosecutorial and not protected
by absolute immunity).2

In sum, even though the Supreme Court in Hafer v. Melo rejected the

claim that state officials are absolutely immune from liability under §1983
for actions within the official's authority and necessary to the performance
of governmental functions, it did not displace the well-established forms of
immunity, including absolute or qualified immunity for State's Attorneys
and other prosecutors.

                                    III

                              Conclusion

 In summary, it is our opinion that the Supreme Court's decision in

Hafer v. Melo does not change the scope of liability of State officials sued
in their personal capacities.

                                              J. Joseph Curran, Jr.
                                              Attorney General

                                              Lucy A. Cardwell
                                              Assistant Attorney General

Jack Schwartz
Chief Counsel
Opinions and Advice

1
The decision does not affect the immunity from liability for State
officials sued in their official capacities. A suit against a State official in his or her
official capacity is, in effect, a suit against the official's office and is no different
from a suit against the State. Neither the State nor its officials acting in their
official capacities are "persons" within the meaning of §1983. Will v. Michigan
Dept. of State Police, 491 U.S. 58 (1989).

2
In Burns v. Reed, the Court noted that qualified immunity after Harlow
v. Fitzgerald, 457 U.S. 800 (1982), provides greater protections to state officials
than the standard governing at the time Imbler was decided. 111 S.Ct. at 1944 n.8
and accompanying text.