Suppose that the President of the United States issues an executive order that violates the constitution. Can officials carrying out the executive order be considered guilty of violating the constitution, or are they shielded until a court order declares the unconstitutionality? What if it's clearly unconstitutional (e.g., assassinate my opponent)?
(Question inspired by EO 13769, against which legal challenges are ongoing, but I'm interested in general answers.)
Is a government official personally liable when, within the sphere of his or her official responsibility, they violate a person's constitutional rights?
Some officials “whose special functions or constitutional status requires complete protection from suits for damages [...] including certain officials of the Executive Branch, such as prosecutors and similar officials, and the President, are entitled to the defense of absolute immunity”. Harlow v. Fitzgerald, 457 U.S. 800 (1982) (internal citations omitted). “For executive officials in general, however, [the Court] makes plain that qualified immunity represents the norm.” Id., at 807.
Officers entitled to qualified immunity “generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Id., at 818. (emphasis added).
In order to survive a motion to dismiss, the court must decide that the asserted right “was clearly established at the time of the alleged violation.” Conn v. Gabbert, 526 U.S. 286 (1999).
A defendant cannot be said to have violated a clearly established right unless the right's contours were sufficiently definite that any reasonable official in the defendant's shoes would have understood that he was violating it. In other words, existing precedent must have placed the statutory or constitutional question confronted by the official beyond debate. Plumhoff v. Rickard, 572 U.S. ____ (2014) (internal citations omitted, citing Ashcroft v. al-Kidd, 563 U.S. ____ (2011)).
Related cases:
