Qualified immunity: A major weakness in civil rights protections

One of the key weaknesses in personal civil liberties arises from a legal concept called qualified immunity. In most (essentially all) situations, the Supreme Court established a qualified immunity concept that shields government employees from liability for unconstitutional infringement of a person’s rights. That happened 40 years ago. But in a recent lawsuit, the Nevada Supreme Court threw out the qualified immunity shield and allowed a person whose rights had been infringed to sue the responsible government employees. 

This story constitutes a major step forward in Nevada for defense of civil liberties. Nationwide, the situation is complex and usually impossible for average people to rely on to vindicate their civil liberties. Forbes writes:

In a landmark decision late last month, the Nevada Supreme Court unanimously ruled that victims of wrongful searches and seizures have the right to sue the responsible government officials. Just as critically, the court firmly rejected qualified immunity as a potential defense against those lawsuits. The court’s twin holdings will better ensure that government officials can actually be held accountable for their misconduct.

“Absent a damages remedy here, no mechanism exists to deter or prevent violations of important individual rights,” Justice Elissa Cadish wrote for the court. And “a right does not, as a practical matter, exist without any remedy for its enforcement.”

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. Mirroring language found in the Fourth Amendment, the Nevada Constitution safeguards “the right of the people to be secure in their persons, houses, papers and effects against unreasonable seizures and searches.”

Yet Nevada’s legislature, like more than 40 other states, never passed a civil rights act that expressly let individuals sue the government employees who infringed their constitutional rights. Only state lawmakers, the Nevada Department of Corrections argued, have the power to make government workers liable for civil rights violations. 

.... the Nevada Supreme Court refused to import the legal doctrine of qualified immunity. Created by the U.S. Supreme Court four decades ago, qualified immunity shields all government workers from liability, unless they violated a “clearly established” right. Since that usually requires finding an almost identical case as precedent—a very high bar to clear—qualified immunity prevents victims from holding the perpetrators accountable.[1]  

Though the Nevada Supreme Court ruling is currently limited to searches and seizures, it’s already making an impact. Consider Stephen Lara. A veteran who served in the Marines for 16 years, Stephen had his entire life savings—over $87,000—confiscated by a Nevada state trooper. He was never charged with a crime.

Stephen didn’t back down. Just one day after the Institute for Justice filed a lawsuit, the government returned the cash it wrongfully seized. But the rest of his lawsuit was put on hold while the Nevada Supreme Court considered Mack’s case. Now with a resounding win for individual rights, Stephen’s case to hold the officers accountable can finally move forward.

“The wheels of justice for Stephen Lara can finally move forward after being on hold for more than a year,” said Institute for Justice Attorney Ben Field, who participated in oral argument for Mack v. Williams. “As we urged, the Nevada Supreme Court holds that ordinary people like Stephen can sue for damages when government officials go over the line and violate the most basic guarantees in the state constitution.”

One can see where this will probably ultimately wind up, i.e., before the radical right, Christofascist US Supreme Court. If so, that court in its virulent hostility to civil liberties will probably (~70% chance ?) establish an invigorated qualified immunity that obliterates the Nevada court ruling. The new and improved qualified immunity will go from a shield that state courts, like the Nevada Supreme Court, can negate to one that state courts cannot negate. That is the sentiment that Christofascism holds toward civil liberties. The question is whether it can get the job done. Time will tell.

Source: Institute for Justice

Footnote: 

1. The Institute for Justice writes:

WHAT DOES IT TAKE TO SHOW THAT A RIGHT IS “CLEARLY ESTABLISHED”?

To show that a right is clearly established, a victim must identify an earlier decision by the Supreme Court or a federal appeals court in the same jurisdiction holding that precisely the same conduct under the same circumstances is illegal or unconstitutional. If no decision exists, qualified immunity protects the official by default. Importantly, when courts grant government workers qualified immunity, they do so despite the fact that the government worker has violated the Constitution or they simply do not address that issue at all.