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 fifteen 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.

Key Findings


8

Only eight states have civil rights statutes, usually bogged down by immunities.


15

Only fifteen states allow suits directly under their state constitutions, but those claims often die based on confusing caselaw and immunities.


50

While most of the 50 states allow for limited tort claims against government officials, they are riddled with exceptions and immunities.

Press Release

Check out this report's press release and contact our media team for additional information.

Press Release

Americans Deserve Their Day in Court: New Study Ranks States on Access to Justice and Government Accountability

  • J. Justin Wilson
  • January 25, 2022

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 […]

State Grades

Alabama Alaska Arizona Arkansas California Colorado Connecticut Delaware Florida Georgia Hawaii Idaho Illinois Indiana Iowa Kansas Kentucky Louisiana Maine Maryland Massachusetts Michigan Minnesota Mississippi Missouri Montana Nebraska Nevada New Hampshire New Jersey New Mexico New York North Carolina North Dakota Ohio Oklahoma Oregon Pennsylvania Rhode Island South Carolina South Dakota Tennessee Texas Utah Vermont Virginia Washington West Virginia Wisconsin Wyoming District of Columbia
  • As
  • Bs
  • Cs
  • Ds
  • Fs

State and Territory Grades

StateGrade
Alabama
Alaska
Arizona
Arkansas
CaliforniaB – 
ColoradoC + 
Connecticut
Delaware
District of Columbia
FloridaD – 
GeorgiaD – 
GuamD – 
HawaiiD – 
IdahoD – 
IllinoisC – 
IndianaD +  
IowaC – 
KansasD + 
KentuckyD – 
LouisianaC – 
MaineD + 
MarylandC – 
MassachussettsC +  
MichiganA – 
Minnesota
Mississippi
MissouriD – 
MontanaC + 
NebraskaD – 
Nevada
New HampshireD – 
New JerseyB – 
New MexicoA –
New York
North CarolinaC + 
North DakotaD – 
Northern Mariana Islands
Ohio
OklahomaD – 
OregonD + 
PennsylvaniaD + 
Puerto RicoD – 
Rhode IslandD + 
South Carolina
South DakotaD – 
TennesseeD – 
Texas
UtahD + 
VermontC – 
Virgin Islands
Virginia
WashingtonD + 
West Virginia
Wisconsin
Wyoming

The study was last updated in January 2022.

Grading Methodology

To ensure consistency in grading, we evaluated the following questions:

  1. Whether the state has a civil rights statute
  2. Whether this civil rights statute is limited to certain constitutional violations
  3. Whether this statute is burdened by immunity
  4. Whether there is a right to sue directly under the constitution
  5. Whether this right is limited to certain constitutional violations
  6. Whether this right is burdened by immunity
  7. Whether there is a broad tort statute available that can be used to sue for violations of individual rights
  8. Whether this tort statute is burdened by immunity

Definitions

Suing directly under the constitutionthe state courts or constitution have indicated that the constitution itself provides a remedy, regardless of any statute
Suing under a civil rights statutethe legislature has passed a law that authorizes a remedy for violations of civil rights
Suing under a state tort claims actthe legislature has passed a law that authorizes a remedy for the infliction of a personal injury (called, in legal terms, a “tort”) by a government official. We prefer civil rights statutes to tort statutes because they deal more directly with constitutional violations
Section 1983the federal civil rights statute that allows for damages claims against state and local officials who violate federal, not state, constitutional rights. 42 U.S.C. § 1983
Bivens claimsuing a federal official directly under the federal constitution
Federal Tort Claims Actthe law that Congress has passed that authorizes a remedy for the infliction of a personal injury by a government official, under certain limited circumstances. 28 U.S.C. § 1346(b)(1), et seq.

Acknowledgements

Special thanks to Alexander Reinert, Joanna Schwartz, and James Pfander for their paper New Federalism and Civil Rights Enforcement. The paper helped us refine our categories for evaluating each state, as well as cross-check our findings with theirs.

And thank you to Justice Neil Gorsuch. His concurrence in Browder v. City of Albuquerque, 787 F.3d 1076, 1083 (10th Cir. 2015), was a catalyst for this study.

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