The killings of Breonna Taylor and George Floyd awakened the public to challenges of holding police officers and other government officials accountable when they violate someone’s civil rights. Chief among the many legal hurdles is the court-invented doctrine of qualified immunity. But a new study by the Institute for Justice, 50 Shades of Government Immunity: Complications with bringing civil rights claims under state law, shows that victims who seek to hold officers and others in state court fare no better than in the federal courts. Almost every state in the country has either adopted the federal standard of qualified immunity or has its own tangle of immunity doctrines that makes it nearly impossible to sue for violations of civil rights.

Out of fifty states, the study finds, only eight have a law that specifically allows victims to sue officials for violations of at least some civil rights. And only three of these states—California, Colorado and New Mexico—specifically restrict or reject the defense of qualified immunity. Similarly, only fifteen states allow victims to file lawsuits directly under their constitutions. But again, in most of them, qualified immunity presents a serious obstacle.

“Every American deserves their day in court, but the sad truth is that for most victims of government abuse, the courthouse doors are locked,” said study manager Kendall Morton. “As far as life, liberty, and property are concerned, state and local officials get near absolute immunity, under both state and federal laws.”

These findings are in line with what IJ has seen on the ground with clients like Cassi Pollreis, whose sons—one 12 and another one 14—were arrested and held at gunpoint by a police officer looking for adult fugitives on the run. Even after the officer realized the boys were just a pair of kids walking home from dinner, he kept them laying on their stomachs, handcuffed, with his gun drawn, and with no probable cause to show for it. This was a clear violation of the Fourth Amendment as well as Arkansas law. But because immunities in Arkansas are even more onerous than under federal law, Cassi and the boys chose to take their chances in federal court. Unfortunately, they fared no better in federal court. On Monday, the U.S. Supreme Court rejected their case asking to hold the officer accountable. 

Ironically, Arkansas is far from the worst performer in the study, which grades states based on several criteria, including whether there is a civil rights statute available and whether this statute is limited by qualified immunity. Overall, 27 states and the District of Columbia don’t even give you permission to sue for violations of your constitutional rights. Only eight states have a statute that permits you to do so. And 15 states do not have a statute, but say that you can sue anyway, directly under the state constitution. Immunity is almost always a factor, even in states that allow suits for unconstitutional conduct.

The good news is that it’s never too late to open the courthouse doors. Just in the last year, Colorado and New Mexico have passed laws allowing victims of abuse to sue government officials and their employers. Importantly, these reforms explicitly excluded qualified immunity as a defense. Colorado still has a long way to go, since it limits its reforms to police even though all government officials have the ability to exceed their constitutional limits. New Mexico, which does not draw such lines, gets an A-, the highest grade in our study. Importantly, both states provide alternative, but equally effective, models for reform, with Colorado focusing more on officer liability and New Mexico on department liability.

“With state legislatures back in session, it is time for the lawmakers to take constitutional accountability seriously,” said IJ Senior Legislative Counsel Lee McGrath. “Washington DC is paralyzed by partisanship. It is up to the states now to reform their existing laws by creating state-level civil rights statutes, getting rid of immunities, and making it easier for individuals to vindicate their rights in state courts.”

One way to do this is to pass the Protecting Everyone’s Constitutional Rights Act (PECRA). This is the route that focuses on department liability and was adopted by New Mexico. Another option is what Law Professors Alexander Reinert, Joanna Schwartz and James Pfander propose in a new paper in the Northwestern University Law Review. This is the route that focuses on individual liability and was in part adopted by Colorado. Both routes are a sure way for states to earn an “A,” but only if they are applied to all state and local government officials, without qualifications.

Based on IJ’s research New Mexico (A-), California (B-), New Jersey (B-), Colorado (C+), Montana (C+), North Carolina (C+), Connecticut (C) and New York (C) were top of the class, while Alabama, Delaware, the District of Columbia, Mississippi, and South Carolina, all receive F’s. Read the full study to see how other states scored.

The Institute for Justice is the national law firm for liberty and the nation’s leading advocate for qualified immunity reform. Cassi’s case and others are part of IJ’s Project on Immunity and Accountability, which is dedicated to the principle that if citizens are not above the law, then government officials are not above the Constitution.