Wisconsin law enforcement is protected by both state-level Governmental Immunity, for discretionary acts, and federal Qualified Immunity for constitutional violations. Immunity can shield law enforcers from prosecution. Specific procedures for overcoming immunity are available. Presenting past related dismissals to the hearing judge as case law may improve the possibility of dismissing an immunity.
Qualified Immunity
When officials perform discretionary duties qualified immunity provides an affirmative defense. They are shielded unless conduct violates “clearly established” law. Qualified immunity isn’t from a specific statute. It’s a judicial doctrine created by the Supreme Court that protects government officials from liability in lawsuits. It stems from the interpretation of 42 U.S.C. § 1983, part of the Civil Rights Act of 1871, which allows citizens to sue officials for violating their constitutional rights.
Governmental Immunity (Sovereign)
Wisconsin governmental immunity protects government entities, officers, and employees from liability for certain actions, primarily discretionary and intentional acts, rooted in common law but limited by statute and court decisions, with exceptions for negligent performance of ministerial duties and malicious conduct.
Wisconsin Immunity is Upheld in Federal Court
Federal courts in Wisconsin generally apply state-level immunity—specifically Wisconsin’s governmental immunity statute Wis Stat §893.80 (4) to state law claims against officers. Wisconsin law protects government employees from liability for discretionary acts, while federal law provides qualified immunity for federal constitutional claims.
Disqualify Governmental Immunity
In Wisconsin identify specific exceptions where immunity is waived by statute or in a past case where a court deemed the act unconstitutional. Prove the government employee was performing a ministerial duty rather than a discretionary one. Demonstrate either that the official’s conduct violated a constitutional or statutory right and that the right was “clearly established” at the time of the conduct, or that their actions fall into a specific exception to immunity under state law.
Waiving governmental immunity generally involves identifying specific statutory exceptions, suing individual employees rather than the entity itself, or demonstrating that the government expressly waived its immunity. Conduct can be so egregious or outrageous that a reasonable officer would know it was unconstitutional, even without a specific, nearly identical prior case.
Qualified immunity generally applies to discretionary functions involving judgment or policy choices. It does not protect officials when they fail to perform a “ministerial duty,” which is a mandatory, specific task required by law or established protocol. Immunity may not apply if the official’s actions were malicious, willful, or intentionally harmful, rather than a reasonable (even if mistaken) judgment made in good faith.
Qualified immunity protects individual government employees from personal liability, but does not shield the government entity (like a city or county) itself from all lawsuits. You may be able to pursue a claim against the municipality, though different rules and damage caps apply.
While qualified immunity is a federal doctrine, Wisconsin has its own governmental immunity statutes (Wis. Stat. § 893.80) and case law that interacts with federal law.
Disqualify Qualified Immunity
Qualified immunity does not apply to injunctive relief (stopping a practice), nor does it apply to ministerial tasks (duties specifically required by law, not discretion). Courts often dismiss suits if the officer’s specific conduct was not previously declared unconstitutional in a near-identical case.
Qualified immunity in Wisconsin frequently bars civil rights lawsuits against law enforcement for constitutional violations, particularly when no “clearly established” legal precedent exists. While federal qualified immunity protects officials from damages in federal claims, Wisconsin state law (s. 893.80) often provides separate immunity for discretionary acts.
Ministerial Duty
Public employees and the government entity can be held liable if the action or inaction was a violation of a ministerial duty. A ministerial duty is a clear, prescribed duty that must be performed in a specific manner, with “nothing remaining for the exercise of judgment or discretion”.
Malicious, Willful, and Intentional Conduct
Immunity does not shield government employees from liability for conduct that is malicious, willful, and intentional.
Sovereign Immunity
No suit without consent. Protects sovereign states and their state officers and agencies.
Not located in Constitution. In Federal Common Law
State Sovereign Immunity
Protected by the 11th Amendment but waivable. Covered in Article 3.
Absolute Immunity
Means that a government agent or actor cannot be sued for the illegal act, even if said agent or actor performed the action in bad faith or even maliciously.