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.
Only eight states have civil rights statutes, usually bogged down by immunities.
Only seventeen states allow suits directly under their state constitutions, but those claims often die based on confusing caselaw and immunities.
While most of the 50 states allow for limited tort claims against government officials, they are riddled with exceptions and immunities.
Check out this report's press release and contact our media team for additional information.
State and Territory Grades
|District of Columbia||F|
|New Hampshire||D –|
|New Jersey||B –|
|New Mexico||A –|
|North Carolina||C +|
|North Dakota||D –|
|Northern Mariana Islands||F|
|Puerto Rico||D –|
|Rhode Island||D +|
|South Dakota||D –|
The study was last updated in January 2022.
To ensure consistency in grading, we evaluated the following questions:
- Whether the state has a civil rights statute
- Whether this civil rights statute is limited to certain constitutional violations
- Whether this statute is burdened by immunity
- Whether there is a right to sue directly under the constitution
- Whether this right is limited to certain constitutional violations
- Whether this right is burdened by immunity
- Whether there is a broad tort statute available that can be used to sue for violations of individual rights
- Whether this tort statute is burdened by immunity
|Suing directly under the constitution||the state courts or constitution have indicated that the constitution itself provides a remedy, regardless of any statute|
|Suing under a civil rights statute||the legislature has passed a law that authorizes a remedy for violations of civil rights|
|Suing under a state tort claims act||the 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 1983||the 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 claim||suing a federal official directly under the federal constitution|
|Federal Tort Claims Act||the 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.|
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.
Listen to a conversation about the report on Twitter Spaces
Check out this report’s press release and contact our media team for additional information.
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