Can you sue under a state civil rights statute?
Arkansas is one of eight states to enact a statute creating a private right of action for damages for violations of its Constitution. The Arkansas Civil Rights Act is a state law analogue of Section 1983. That said, qualified immunity defense still applies, and it is arguably even more onerous than in federal court.
Can you sue under a state tort claims act?
But to a limited extent. The Arkansas Constitution mandates that the state shall never be made a defendant. However, plaintiffs can bring claims before the Arkansas State Claims Commission, an arm of the General Assembly. Political subdivisions are immune except to the extent they are covered by liability insurance.
Are there exceptions to the state tort claims act?
The state maintains absolute sovereign immunity from claims brought in any of its courts. Political subdivisions are immune except to the extent they are covered by liability insurance. State employees have broad statutory immunity for non-constitutional tort claims. Municipal employees are liable for intentional torts, but immune from negligence actions unless they have liability insurance.
Arkansas Civil Rights Act: A Baby Section 1983
Arkansas is one of a handful of states to enact a statute creating a private right of action for damages for violations of its Constitution. The Arkansas Civil Rights Act (“ACRA”) provides: “Every person who, under color of any statute, ordinance, regulation, custom, or usage of this state or any of its political subdivisions subjects, or causes to be subjected, any person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Arkansas Constitution shall be liable to the party injured in an action in circuit court for legal and equitable relief or other proper redress.” 1
While the Arkansas Supreme Court has stated that state officials sued under the ACRA enjoy the statutory immunity conferred upon them in a separate provision, the Court has essentially applied the same qualified immunity analysis that courts apply in Section 1983 cases. 2
Municipal employees also enjoy immunity from actions brought under the ACRA when they do not violate “clearly established law.” 4
Non-constitutional Tort Actions
Plaintiffs have limited options when it comes to pursuing non-constitutional tort claims against the state or its employees. The Arkansas Constitution mandates that the state shall never be made “defendant in any of her courts.” 5 The provision is “a general prohibition against awards of money damages in lawsuits against the state and its institutions.” 6 To get around this absolute sovereign immunity and still fulfill its constitutional obligation to provide for payment of all “just and legal debts of the state,” the legislature created the Arkansas State Claims Commission to resolve claims against the State that could not be heard by the courts. 7 , 8 The Commission is a non-judicial forum where governor-appointed commissioners hold discretion over the merits and value of the claim. 9 The Arkansas Supreme Court has labeled the Commission an “arm of the General Assembly” with “total control over the determination of and subsequent funding for payment of the ‘just debts and obligations of the state.’” 10 The Commission cannot award more than $15,000 without approval by the General Assembly and there is no judicial review. 11 State employees have broad statutory immunity for non-constitutional tort claims as they may only be held liable to the extent they have liability insurance or acted with malice. 12
Arkansas law declares that political subdivisions “shall be immune from liability and from suit for damages except to the extent that they may be covered by liability insurance.” 13 Despite no mention of municipal employees in the statutory language, the Arkansas Supreme Court has read this provision to immunize municipal employees for negligence actions unless they have liability insurance. Fortunately, municipal employees can be held liable in their personal capacity for their intentional torts. 14