Washington Law Review


Kevin R. Cole


If a city council member engages in legislative conduct that violates a person's clearly established, federally protected rights, should the council member ever be personally liable for civil damages under 42 U.S.C. § 1983? By the end of the 1980s, eight circuit courts of appeals found that absolute legislative immunity prevented local legislators from being held personally liable for their legislative acts. This majority position is misguided. Legal analysis and public policy support qualified, rather than absolute, legislative immunity for city council members in section 1983 cases. Under a rule of qualified legislative immunity, the council member would be liable for legislative conduct that a reasonable person would recognize as violative of the victim's clearly established, federally protected right.

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