Page:United States Reports 502 OCT. TERM 1991.pdf/172

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MIRELES v. WACO Stevens, J., dissenting

Justice Stevens, dissenting. Judicial immunity attaches only to actions undertaken in a judicial capacity. Forrester v. White, 484 U. S. 219, 227–229 (1988). In determining whether an action is “judicial,” we consider the nature of the act and whether it is a “function normally performed by a judge.” Stump v. Sparkman, 435 U. S. 349, 362 (1978).* Respondent Howard Waco alleges that petitioner Judge Raymond Mireles ordered police officers “to forcibly and with excessive force seize and bring” respondent into petitioner’s courtroom. App. to Pet. for Cert. B–3, ¶ 7(a). As the Court acknowledges, ordering police officers to use excessive force is “not a ‘function normally performed by a judge.’ ” Ante, at 12 (quoting Stump v. Sparkman, 435 U. S., at 362). The Court nevertheless finds that judicial immunity is applicable because of the action’s “relation to a general function normally performed by a judge.” Ante, at 13. Accepting the allegations of the complaint as true, as we must in reviewing a motion to dismiss, petitioner issued two commands to the police officers. He ordered them to bring respondent into his courtroom, and he ordered them to commit a battery. The first order was an action taken in a judicial capacity; the second clearly was not. Ordering a battery has no relation to a function normally performed by a judge. If an interval of a minute or two had separated the two orders, it would be undeniable that no immunity would attach to the latter order. The fact that both are alleged to Inc., 446 U. S. 719, 736–737 (1980) ( judge not entitled to judicial immunity when acting in enforcement capacity); cf. Mitchell v. Forsyth, 472 U. S. 511, 520–524 (1985) (Attorney General not absolutely immune when performing “national security,” rather than prosecutorial, function). Moreover, even if the act is “judicial,” judicial immunity does not attach if the judge is acting in the “ ‘clear absence of all jurisdiction.’ ” Stump v. Sparkman, 435 U. S., at 357 (quoting Bradley v. Fisher, 13 Wall. 335, 351 (1872)).
 * See also Supreme Court of Va. v. Consumers Union of United States,