published Friday, February 14th, 2014

Judges cannot be sued, no matter what

Judges have built-in protections from lawsuits

If a judge sexually harasses you in his office, you probably can't sue.

On Friday, a federal judge dismissed a civil lawsuit against former Murray County Magistrate Court Judge Bryant Cochran. The plaintiff, Angela Garmley, claimed Cochran propositioned her for sex when she asked him to issue a warrant against people who allegedly beat her.

Garmley said she didn't have sex with Cochran, but she did send pictures of herself wearing only underwear. She didn't think she had a choice. If she didn't send the pictures, she said, she thought Cochran would decline to issue the warrant.

In the end, the judge did issue the warrant. But Garmley later sued Cochran for violating her constitutional rights.

However, 11th U.S Circuit. Judge Harold Murphy ruled last week that judges like Cochran cannot be sued. Even if Cochran abused his power and pressured Garmley into having sex with him, Murphy ruled, Cochran was protected by judicial immunity.

In the United States, a judge cannot be sued for anything he has done on the job. Judicial immunity, which derives from English common law dating back to the Middle Ages, is designed to make sure judges can stay impartial.

Without this protection, for example, a judge might give a criminal the lightest possible sentence -- not because that's what the criminal deserved, but because the criminal might otherwise sue the judge. Such immunity doesn't extend to other members of law enforcement because they don't have as much power.

"When you go to a judge, you expect impartiality in a way you might not otherwise," said Arthur Hellman, a University of Pittsburgh law professor. "Police chiefs aren't supposed to be biased or act upon personal motives, but they don't enter judgments that have the force of law. Only the judge is clothed with that power."

But Stuart James, Garmley's attorney, said judicial immunity should not apply in this case. Judges are supposed to get the protection only when acting in their official duties, and James doesn't believe asking for sex counts.

"In this case, (Murphy) is giving judicial immunity too broad of a definition," James said.

The attorney will ask Murphy to reconsider the case. James said that if federal prosecutors pursue criminal charges against Cochran in relation to the incident, more pertinent information may come to light.

According to the lawsuit, Cochran told Garmley in April 2012 that he needed a mistress because his wife wasn't pleasing him in the bedroom. He allegedly told her she was arousing him, and he asked her to come back later that week in a tight dress and no underwear.

Even if that were true, Murphy wrote in his order, Cochran has judicial immunity for these reasons: Garmley visited Cochran in his office, they talked about a case over which Cochran has jurisdiction, and Garmley asked him to issue warrants.

Hellman said judicial immunity almost always applies because lawmakers don't know specifically which "truly horrendous cases" should be the exceptions. It's hard to anticipate how a judge will step over the line until he or she actually does it.

Jeffrey Shaman, a law professor at DePaul University in Chicago, said this particular case is not clear-cut.

"It's kind of debatable," he said. "The federal judge in the case took this position that this action could be done in connection with issuing a warrant. ... That's a reasonable position. On the other hand, this is so clearly a wrong thing for a judge to do. One could argue this is beyond a judge's jurisdiction."

Michael Crowell, a professor of public law and government at the University of North Carolina-Chapel Hill, pointed out that judicial immunity does not protect judges from other forms of discipline.

Police officers can still arrest a judge. And governing bodies can still fire a judge, which may have happened to Cochran had he not resigned in August 2012.

But, often, a victim still can't sue the man or woman on the bench.

"Sometimes absolute scoundrels will get away with totally abhorrent behavior," Crowell said. "That's the policy decision. That's the price that gets paid."

Contact staff writer Tyler Jett at tjett@timesfreepress.com or 423-757-6476.

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