Geo Group, Inc. v. Menocal · ¶21

To start, a party asserting a merits defense in a lawsuit makes a fundamentally different kind of argument than a party asserting an immunity. The former advances some reason why his conduct was not unlawful—or said otherwise, why under the law he did nothing wrong. And so, that defendant says, he should not be found liable: Because he obeyed the law, he should not, for example, have to pay damages. By contrast, a party asserting an immunity “makes no challenge” to “the merits of the charge against him.” Abney v. United States, 431 U. S. 651, 659 (1977). That defendant need never say he followed the law, because his claim of immunity does not turn on his conduct's legality. “[A]n immunity frees one who enjoys it from a lawsuit whether or not he acted wrongly.” Richardson v. McKnight, 521 U. S. 399, 403 (1997). A classic example is sovereign immunity: It shields the Government from suit…

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