Nevada’s Top Court Says Cops Can Now Be Sued For Rights Violations, Won’t Have Access To Qualified Immunity

Cops in Nevada had better start behaving. The state’s Supreme Court has handed down a ruling that not only guarantees residents the right to sue under state law, but won’t allow officers to easily escape lawsuits by asking for qualified immunity.

Here’s the background of the case, as summarized by Nick Sibilla at Forbes:

What became a pivotal ruling for civil rights started because Sonja Mack just wanted to see her boyfriend. Back in 2017, Mack traveled to High Desert State Prison to visit her partner, who was then behind bars. While waiting, Mack said she was approached by two correctional officers, who then conducted a “demeaning and humiliating” strip search of Mack. Even though officers didn’t find any drugs or contraband, the prison still banned Mack from seeing her boyfriend and revoked her visitation privileges.

Mack sued, arguing that being strip searched violated her rights under the Nevada Constitution.

The problem facing Mack is that the Nevada legislature had never passed a law that expressly granted residents a right to sue government employees at the state level for constitutional violations. And no court had apparently been asked in a persuasive way to do what the state legislature had failed to do.

The defendant, the Nevada Department of Corrections, argued the lack of legislation meant only the state could punish corrections officers for civil rights violations. Fortunately, the state Supreme Court disagrees.

[W]e reject the NDOC parties’ assertion that state tort law provides meaningful redress for invasions of the constitutional right at issue here. Although other courts have determined tort remedies suffice to compensate for personal invasions of certain constitutional rights, […] we disagree that any commonalities between state tort-law claims and constitutional protections… provide meaningful recourse for violations of the constitutional right against unreasonable searches and seizures by government agents, as state tort law ultimately protects and serves different interests than such constitutional guarantees.

The NDOC thinks everything should be limited to tort law, which really doesn’t cover constitutional violations. The government would apparently prefer it never be held responsible for violating rights. The court says that’s not acceptable.

Absent a damages remedy here, no mechanism exists to deter or prevent violations of important individual rights in situations like that allegedly experienced by Mack. Thus, a damages remedy is warranted under this factor of the Restatement test, as monetary relief remains necessary to enforce the provision for individuals in Mack‘s shoes, and a damages remedy furthers the purpose of the search-and seizure provision to the extent it acts as a deterrent to government illegality.

As the court notes later in the decision, a right without a remedy for enforcement can hardly be called a right.

Now, on to the NDOC’s attempt to have the court adopt the qualified immunity doctrine found at the federal level (and in several states). The court points again to the legislature, noting that it has never attempted to create anything resembling state-level qualified immunity for government employees. If it legislated from the bench, the court says it would “undermine this State’s public policy, reflected in NRS 41.031, that [state actors] ‘should generally take responsibility when [they] commit wrongs.'”

This is the court’s final say on that matter:

Accordingly, qualified immunity, as that doctrine is understood under federal law, is not a defense available to state actors sued for violations of the individual rights enumerated in Nevada’s Constitution.

That’s it. The court recognizes a right to sue government employees for constitutional violations. And qualified immunity won’t be an option. So, either cops (and corrections officers) will need to start doing better respecting Nevada residents’ rights. Or they’re going to have to try to talk courts (at both state and federal level) into allowing them to move state law cases to federal court where they can possibly score themselves a little QI. Either way, civil rights suits will take more than a motion filled with qualified immunity boilerplate to get government employees dismissed.