50 Shades of Government Immunity

50 Shades of Government Immunity

Complications with bringing civil rights claims under state laws

In Arkansas, two innocent boys, one 12 and the other 14, were walking home from dinner at their grandparents’ house. At the same time, an officer was looking for two adult suspects on the run. Seeing the two boys, who walked casually toward him and in no way resembled the two suspects, the officer drew his gun and pointed it at the boys. The boys were forced onto the ground and handcuffed, all while their mother, step-dad, and grandfather tried to explain to the officer that the kids he was aiming at were innocent adolescents.

When the boys sued the officer for unreasonably seizing them in violation of their rights, they had a choice to make. They could either sue for violations of the Fourth Amendment under federal law or they could sue in state court under state law.

In 2015, Justice Gorsuch—then a judge on a lower federal court of appeals—seemingly resolved that choice. In a concurring opinion involving reckless driving by a police officer, he wrote that “common law usually supplies a sound remedy when life, liberty, and property are taken.” He explained that “[o]ften, there’s no need to turn federal courts into common law courts . . . when we have state courts ready and willing to vindicate those same rights using a deep and rich common law that’s been battle-tested through the centuries.”

The problem is that when the boys’ lawyers looked at their options—or lack thereof— under Arkansas law, they decided to take their chances in federal court, where the officer would be entitled to the protection of qualified immunity. They chose to face one federal immunity rather than deal with the maze of Arkansas immunities.  And Arkansas is hardly the worst state for civil rights plaintiffs.

It is time for states to do better. Justice Gorsuch is correct that state courts once stood ready and willing to vindicate rights, but today most of them no longer do. As this report shows:

• Only eight states have civil rights statutes, usually bogged down by immunities.
• Only sixteen states allow suits directly under their state constitutions, but those claims often die based on confusing caselaw and immunities.
• And while most states allow for limited tort claims against government officials, they are riddled with exceptions and immunities, which makes it extremely difficult for victims of government abuse to prevail.

This study, which grades states based on the ease of bringing civil rights claims under state law, is a call for lawmakers to do better. It is also a resource for reporters, lawyers, and people in general. If you want to understand what you need to do to bring a civil rights case in your state, this study is here to help you do that.