In 1989, the Supreme Court found in DeShaney v. Winnebago County Department of Social Services that State officials have no obligation to protect private citizens from violence or injury caused by other private citizens. DeShaney v. Winnebago Cnty. Dept. of Soc. Services, 489 U.S. 189, 194 (1989) (finding county authorities not liable when a child in its custody was seriously injured by his father). Writing for the Court, Chief Justice Rehnquist explained the Due Process Clause limits a state’s power to deprive individuals of “life, liberty, and property without due process,” but does not create an affirmative duty to protect individuals. Id. at 194, (quoting U.S. Const. amend. XIV, § 1). Thus, state actors cannot be held liable for harm caused to private citizens under 42 U.S.C. § 1983. However, in DeShaney, the Court identified two possible exceptions in which a private citizen may be entitled to protection. The first, known as the Special Relationship Exception, is often applied when a state incarcerates, institutionalizes, or restrains a person involuntarily. DeShaney, 489 U.S. at 198-99; see Christopher M. Eisenhauer, Police Action and the State-Created Danger Doctrine: a Proposed Uniform Test, 120 DICK. L. REV. 893 (2016).

Judicial immunity has its roots in traditional English common law and has long been recognized by federal courts. See Bradley v. Fisher, 80 U.S. 335, 347 (1871). The Supreme Court upheld this immunity after the passage of 42 U.S.C. § 1983, which created liability for state actors who deprive citizens or other persons of their Constitutional rights. 42 U.S.C. § 1982; Pierson v. Ray, 386 U.S. 547, 554 (1967). The question courts ask when determining liability in § 1983 cases is whether, under common law principles of immunity, the defendant would be immune from suit due to their judicial or quasi-judicial role. See, e.g. Malley v. Briggs, 475 U.S. 335, 339-40 (1986). The Supreme Court has established a presumption that only qualified immunity is necessary for government officials, refusing to expand absolute immunity beyond what is truly necessary. Burns v. Reed, 500 U.S. 478, 486-87 (1991). The general test is whether the defendant is serving a function that existed—or is analogous to a function that existed—under English common law that would entitle him to absolute immunity, but courts still come to different results based on the specific test they decide to use. This is the apparent reason for the circuit split discussed below.