Nevada Supreme Court Chips Away at Immunity for Law Enforcement Misconduct

Holding government officials accountable for violating the Constitution is more difficult than it should be. Just ask Clarence Jamison. Even though he had done nothing wrong, an officer in Mississippi stopped him while he was driving home to South Carolina. During an almost two-hour ordeal, the officer badgered Jamison into allowing a search and falsely claimed he had received a tip that Jamison’s car had cocaine in it. When Jamison finally relented under the pressure and agreed to allow a search, the officer found nothing. Despite the officer’s egregious behavior, a federal judge dismissed Jamison’s lawsuit challenging the search, even though he felt doing so was unfair. He felt his hands were tied because of “qualified immunity,” which protects public officials from being sued in many situations.

Reviewing cases like this, Sonjia Mack might have worried that she stood little chance of prevailing on her claim that Nevada corrections officers violated her constitutional right to be free of unreasonable searches and seizures. But there was a crucial difference between her and Jamison: while Jamison had advanced a federal claim, Mack brought her claim under the state constitution. And fortunately for her, the Nevada Supreme Court chose not to apply federal precedents that would have posed an insurmountable obstacle.

Mack’s ordeal began when she attempted to visit an inmate at High Desert State Prison in Nevada. Correctional officers strip-searched her and interrogated her about smuggling contraband into the prison. They also asked her about “ongoing” crimes. Most likely humiliated, Mack filed a lawsuit in federal court arguing that the officers had violated her rights. Unsure of how to rule on the claim, the court asked the Nevada Supreme Court for clarity about whether Nevada law authorized money damages for Mack’s constitutional claim and whether qualified immunity applied. Federal courts often hear state law disputes and certify state law issues to state courts when they lack clarity about how to proceed.

The Nevada Supreme Court first found that Mack could pursue money damages for her claim. Believe it or not, courts do not automatically allow victims of unconstitutional actions to receive such damages. In Bivens v. Six Unnamed Agents of Federal Bureau of Narcotics, the U.S. Supreme Court held that money damages can be available under certain circumstances when plaintiffs suffer Fourth Amendment violations at the hands of federal officials, even though the Fourth Amendment’s text doesn’t explicitly provide for money damages. However, the Court has expressed unease about extending Bivens, and it made clear that authorizing money damages for constitutional violations is “a disfavored judicial activity” better left to Congress. I suspect it may overrule Bivens in the near future given how many justices have expressed skepticism.

The Nevada Supreme Court pointedly refused to assume the same posture of reflexive hostility toward court-created remedies. Instead of relying on federal case law, it sought guidance from other state courts. It found the California Supreme Court’s analytical approach particularly persuasive. When deciding whether money damages are available for constitutional violations, California courts use a two-pronged test. First, they consult the language of a constitutional provision and consider whether the drafters intended that money damages be available. They enforce clear textual commands either way. Second, if the text is ambiguous, California courts use what is best described as a totality-of-the-circumstances test to determine whether it makes sense to authorize money damages. The primary difference between California’s approach and the U.S. Supreme Court’s is that California doesn’t view court-created money damages remedies as inherently suspect.

Drawing on this framework, the Nevada Supreme Court found that the Nevada Constitution’s provision against unreasonable search and seizure neither provided for nor precluded money damages. After weighing several different factors, including the need to deter unlawful conduct, it concluded that money damages were available to enforce the provision.

Even if money damages are available, qualified immunity often poses an insurmountable hurdle to plaintiffs like Mack. Qualified immunity is a judge-made doctrine that prevents plaintiffs from pursuing claims against certain government defendants, such as police officers, unless the defendant violated clearly established constitutional rules. In other words, even if a defendant has violated the law, they face no civil liability unless it is “obvious” their conduct was unconstitutional. Courts will frequently find violations of clearly established federal law only when an appellate court has decided a very similar case and found the conduct illegal. This has placed plaintiffs in a catch-22. Courts often find that there was no violation of clearly established law because there is no highly analogous case, which leaves future plaintiffs unable to cite highly analogous cases to prove a violation of clearly established law.   

In recent years, qualified immunity has received considerable criticism from judges, scholars, and politicians across the political spectrum. Judge Don Willett, appointed by President Trump to the U.S. Court of Appeals for the Fifth Circuit, has complained, “The real-world functioning of modern immunity practice — essentially ‘heads government wins, tails plaintiff loses’ — leaves many victims violated but not vindicated.”

While qualified immunity remains fully available at the federal level, the Nevada Supreme Court again charted a different path and held the defense unavailable to the correctional officers in Nevada. The court explained that a statute had waived the government’s immunity from suit and not carved out anything like qualified immunity as an exception. Since waiving or conferring immunity from suit was a legislative function, the Nevada Supreme Court believed creating qualified immunity would usurp the legislature’s role.

The result of this case will be to help more plaintiffs get meaningful remedies against government officials in Nevada. It may also channel more civil rights litigation into state court as plaintiffs around the country decide to focus on state constitutional claims and forgo federal claims where they encounter more hurdles.

That said, the case leaves open important questions. If the legislature does decide to create qualified immunity, courts will have to consider whether qualified immunity is constitutional. State constitutions generally promise citizens the right to a remedy and the right to a trial by jury. If a judge dismisses a lawsuit before a plaintiff even gets discovery, let alone the chance to tell their story to a jury, how have these important constitutional provisions been honored? In time, more state courts may take on these fundamental issues.

Marcus Gadson is an assistant professor of law at Campbell University, where he teaches state constitutional law.