quick facts

The Tom Bane Civil Rights Act: A Baby Section 1983

California is one of eight states to enact a statute creating a private right of action for damages from violations of its constitution. 1 Notably, California’s civil rights statute provides a lower bar to liability than Section 1983 and other states’ civil rights acts do. The Tom Bane Civil Rights Act (“TBCRA”) provides for injunctive or other equitable relief against “a person or persons, whether or not acting under color of law, [who] interferes by threat, intimidation, or coercion, or attempts to interfere by threat, intimidation, or coercion, with the exercise or enjoyment by any individual or individuals of rights secured by the Constitution or laws of the United States, or of the rights secured by the Constitution or laws of this state.” 2 The TBCRA also provides an individual right of action. 3

California courts do not require the “threats, intimidation, or coercion” to be independent of the violation of rights for a civil rights claim to be successful. 4 California courts have held that the type of qualified immunity available in Section 1983 cases does not protect defendants under California’s civil rights law. 5 While clarity is lacking on the issue, courts have said that certain statutory immunities may apply to TBCRA claims. 6

Non-Constitutional Tort Liability

Government tort liability in California is governed entirely by statute. 7 The California Tort Claims Act (“CTCA”) is a massive and complex code of liabilities and immunities. 8 The Act enumerates a complicated list of liabilities and then carves out immunities from those liabilities. 9

Public employees are liable more broadly than public entities. The CTCA provides: “Except as otherwise provided by statute . . . a public employee is liable for injury caused by his act or omission to the same extent as a private person.” 10 On the whole, the CTCA’s practical effect is to provide a system in which government entities enjoy broad immunity from tort liability and government employees are largely liable for their own torts.

The distinction between suing a governmental entity and suing a government employee in his personal capacity is not immensely important in California because of the CTCA’s generous indemnification provision. 11 It provides that public entities must pay judgments on behalf of employees for acts or omissions within the scope of employment, provided the employee requests the public entity to defend him and cooperates in good faith with the defense. 12 The purpose of this provision is to “assure ‘the zealous execution of official duties by public employees.’” 13