It received little fanfare at the time, but the Supreme Court of Nevada refused to recognize the doctrine of qualified immunity last month.

As with all matters legal, caveats and conditionals apply. Qualified immunity — the legal principle which protects government employees from being sued unless their behavior violates “clearly established” statutory or constitutional rights — remains valid law in the federal civil court system. Consequently, even in Nevada, if a police officer performs an illegal warrantless search of your phone or a random county employee decides, without any official authority, to block a highway, your ability to hold anyone financially liable under federal law remains virtually nonexistent.

On the other hand, if you’re a Nevadan and you need to sue one of our municipal, county or state government employees to hold them or their employing agency accountable for their behavior — and you’re able to keep your case within the state court system — you now have options.

Reading through Harlow v. Fitzgerald, one of the foundational U.S. Supreme Court cases defining the limitations of qualified immunity, you would be forgiven for believing qualified immunity was a good thing. The ruling in that case, after all, ostensibly removed absolute immunity (more on that in a bit — let’s just say for now that working for a district attorney’s office has certain fringe benefits) from most government officials, theoretically making it easier to hold them accountable.

In practice, however, the federal court system has interpreted “clearly established” to mean very specific statutory or constitutional rights which a federal judge has already ruled on. Consequently, according to the Institute of Justice, there are only three circumstances under which a federal employee or their employer can be held financially liable:

1. When domestic federal police search your home without a warrant and manacle you in front of your family 
2. When officials at government-run federal prisons violate the Eighth Amendment rights of inmates by failing to provide them with proper medical attention 
3. When Members of Congress terminate your employment on the basis of your gender.

Did a federal agent threaten to kill you because you asked why their son was driving under the influence? Tough luck — in fact, even if the federal employee searched your home without a warrant and handcuffed you in front of your family, they’d have to be doing so in the course of a narcotics investigation since those were the particular circumstances the first criteria were established under. If they’re just chaining you to your shower curtain because they’re bored or mean, well, those are entirely different circumstances, so there’s no “clearly established” case law holding them liable.

Additionally, the doctrine of immunity — qualified or absolute — flies in the face of both the plain text and intended meaning of longstanding federal statute. Title 42, Section 1983, also known as the Ku Klux Klan Act, was originally written in 1871 to hold state and local government officials liable if they deprived “any rights, privileges, or immunities secured by the Constitution and laws.” 

With the passage of the Act, Congress was explicitly attempting to impose Reconstruction — was attempting to establish the civil rights of former slaves, in other words — on the local and state officials employed by the former states of the Confederacy, many of whom still continued to violently oppose all efforts years after the Civil War ended. If the currently understood doctrine of qualified immunity was in effect after the passage of the Act, prosecuted members of the Klan employed by state or local governments could have simply pointed at the lack of “clearly established” case law prohibiting them from terrorizing Black citizens — case law which would have needed to have been established before the Civil War and the abolition of slavery.

Despite the legal and moral obviousness of this point, however, according to a recent Stanford Law Review article the Supreme Court continued to protect many of the judicial immunities enjoyed by public officials before 1871 under the justification that common law — past court decisions, in other words — immunized public officials when they were acting under the authority of their position “without malice, corruption, or cruelty.” A response to the article published by the Cato Institute, however, points out that’s not necessarily historically true — Myers v. Anderson, for example, explicitly rejected that argument when municipal officials in Annapolis, Maryland attempted to enforce a “Grandfather Clause” which only allowed citizens to register to vote if they could first prove they directly descended from those registered to vote prior to the passage of the Fifteenth Amendment.

Oh, sure, the defense’s argument went, the Fifteenth Amendment might prevent states from denying the right to vote “on account of race, color, or previous condition of servitude,” but it doesn’t prevent states from denying the right to vote on other criteria — like, say, whether they had the right to vote before 1870 or if they directly descended from those who had the right to vote before the Civil War happened. That nearly every Black person in Annapolis lost the right to vote was just an unfortunate side effect, see, and not a flagrant attempt to violate the Fifteenth Amendment — after all, the same restriction would also prevent recent immigrants and their descendants from voting, too, and certainly a few of them might pass as white! Consequently, the officials enforcing this policy shouldn’t be held liable for violating the Constitution or abridging the rights of those who can’t trace their lineage back to a voter who had the chance to vote for Abraham Lincoln.

The Supreme Court didn’t buy that line of argument and I’m not buying it, either, but it was cutting edge stuff in 1915 — forty-five years after the ratification of the Fifteenth Amendment.

Point being, qualified immunity as currently understood in the federal court system — which doesn’t even require government employees to be acting in good faith anymore — would have been obviously incoherent to anyone practicing law between 1871 and, oh, 1971 or so (give or take). Current federal doctrine, however, began to emerge when federal courts recognized absolute immunity (without qualification) for prosecutors in Imbler v. Pachtman (it is consequently functionally impossible to sue a prosecutor, even if they’re malicious, incompetent, or flat-out lying in court). That recognition was further expanded to include federal officials representing federal agencies in court in Butz. v. Economou. In the context of those cases, the establishment of qualified immunity in Harlow v. Fitzgerald — which was adjudicated six years after Imbler and four years after Butz — was seen as a mild attempt to roll back some of the very recently established judicial immunities defined after the conclusion of the Vietnam War.

The federal court system, however, has limited jurisdiction. Generally speaking, federal jurisdiction is limited to matters of federal law or matters involving parties from two or more states. If a lawsuit involves a matter of state law which needs to be adjudicated between a resident of said state and another entity residing in the state — say, the state’s Department of Corrections, for example — that falls squarely within the jurisdiction of the state’s court system.

Fortunately for Nevadans, our state constitution was written before the passage of the Fourteenth Amendment and the subsequent incorporation of the Bill of Rights against state and local governments — meaning, when Nevada’s Constitution was first transmitted via the era’s longest and most expensive telegram, the Bill of Rights only prevented Congress from, say, abridging an American’s freedom of speech. State and local governments, however, could do as they pleased, and often did. Consequently, if Nevada’s founders wanted to limit the reach of Nevada’s nascent state government, they needed to copy the Bill of Rights and paste them into Nevada’s Constitution — which they did.

(Well, more accurately, Nevada’s founders copied large portions of California’s Constitution, which incorporated the federal Bill of Rights into Californian constitutional law, but I digress.)

Consequently, it’s possible to prosecute what would appear to be a Bill of Rights violation, which would ordinarily be a question of federal constitutional law, wholly within Nevada law — and, by extension, wholly within Nevada’s judicial system, which is not necessarily bound by federal judicial precedent.

Which is exactly what Sonja Mack, who only ever wanted to visit her boyfriend in prison, did after she was forced to endure a strip search by two correctional officers at High Desert State Prison in Indian Springs. Even after the strip search failed to reveal any contraband, the officers still refused to permit her to visit her boyfriend — so she sued, not under the Fourth and Fifth Amendments of the U.S. Constitution, but instead under Article 1, Sections 8 and 18 of the Nevada Constitution, which both provide similar protections. 

In response, the Department of Corrections argued there was “no private right of action under the Nevada Constitution” as the Legislature never wrote a statute authorizing monetary relief in the event of a violation of the Nevada Constitution — this, if the Supreme Court of Nevada agreed, would mean individual Nevadans would not have the right to sue our state government. Even if there was such a right, Corrections further argued, “Nevada courts would apply the doctrine of qualified immunity.”

Fortunately for all Nevadans, Mack included, the Supreme Court of Nevada saw it differently.

According to the ruling drafted by Justice Elissa Cadish, the Nevada Constitution’s “prohibitory provisions” are “self-executing” — meaning it doesn’t matter whether the Legislature bothered to write a statute providing for a specific penalty in the event of a constitutional violation because Nevada’s courts are empowered to enforce constitutional law and prohibitions. As Justice Cadish put it:

Our caselaw makes clear that when it comes to the self-executing rights contained within our Constitution’s provisions, the Legislature lacks the authority to pass legislation that abridges or impairs those rights; likewise, the availability of of remedies that follow from violations of those rights does not depend on the Legislature’s benevolence or foresight. Thus, we do not view the question before us as simply a battle between judicial and legislative competence.

Justice Cadish further added:

Constitutional rights must remain enforceable in the absence of some action by the Legislature, or risk that constitutional rights become all but “a mere hope.”

Additionally:

Ultimately, then, although the Nevada Constitution does not address enforcement of individual rights, it also does not foreclose an implied right of action for money damages based on violations of those rights.

In other words, yes, Nevada, you may sue your state or local governments if they violate your rights, even if the Legislature didn’t write out a specific statute defining the remedies available to you should you succeed.

The ruling didn’t stop there, however. Justice Cadish further explained that:

Absent a damages remedy here, no mechanism exists to deter or prevent violations of important individuals rights in situations like that allegedly experienced by Mack.

[...]

The lack of a damages remedy itself produces adverse policy consequences insofar as it renders illusory the guarantees of the Nevada Constitution in situations like the present.

Regarding the question of qualified immunity, meanwhile, Justice Cadish chose to interpret existing state statute — NRS 41.031, more specifically, which waives the state’s immunity from liability — much more literally and expansively than the federal Supreme Court currently interprets Title 42, Section 1983:

While several “exceptions to, and limitations on, the waiver” exist, the Legislature has not provided for a state-law equivalent of qualified immunity in the manner it exists under federal law [...]. Absent such “express exception to the waiver” of immunity, we cannot supply the defense of qualified immunity to claims under the Nevada Constitution.

[...]

Otherwise, we threaten to “undermine this [S]tate’s public policy, reflected in NRS 41.031, that [state actors] should generally take responsibility when [they] commit[] wrongs.” 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.

In conclusion:

As only the Legislature may waive sovereign immunity of state actors, so too only the Legislature may restore sovereign immunity to state actors. It is not within our inherent judicial power to create exceptions to sovereign immunity or to the waiver of sovereign immunity.

For reasons which continue to confuse and confound the Cato Institute, the Institute for Justice and the American Civil Liberties Union — among countless others — federal courts have chosen to ignore the plain text and intent of the statutes Congress passed over a century ago to hold public officials accountable. Thankfully, the Nevada’s Supreme Court justices in Carson City have considerably more sense than their allegedly “superior” colleagues in Washington, D.C. 

Consequently, though Nevadans may still lack legal recourse when a federal official violates our rights, we can at least rest somewhat easier with the knowledge that our courts are comparatively unafraid to let Nevadans hold our local and state public officials accountable when they’re behaving badly.

CORRECTION @ 3:18 pm on 1/29/23: The second paragraph previously stated that one's ability to hold anyone financially liable will be virtually nonexistent if the case is brought before a federal judge. That is incorrect — if a federal court is hearing an issue under Nevada law, Nevada's jurisprudence regarding qualified immunity still applies. Qualified immunity only applies under matters of federal law.

David Colborne ran for office twice. He is now an IT manager, the father of two sons, and a weekly opinion columnist for The Nevada Independent. You can follow him on Mastodon @[email protected], on Twitter @DavidColborne, or email him at [email protected].