quick facts

A Bivens-like Cause of Action for Constitutional Violations

The Iowa Supreme Court has recognized a Bivens-like right of action for damages for violations of constitutional provisions deemed “self-executing” in situations where the legislature has not provided an “adequate remedy.” 1 The Court has recognized that the Due Process and Equal Protection clauses of the Iowa Constitution are self-executing such that a constitutional tort claim for damages exists when there is no other adequate remedy. 2 These constitutional tort claims come with qualified immunity less protective of officers than federal qualified immunity. The Iowa Supreme Court has declined to adopt the federal standard or to allow the immunities of the Iowa Tort Claims Act to govern constitutional torts. 3 Instead, the Court adopted a “due care” qualified-immunity standard, holding that “a government official whose conduct is being challenged will not be subject to damages liability if she or he pleads and proves as an affirmative defense that she or he exercised all due care to conform to the requirements of the law.” 4

Non-constitutional Tort Claims

There are few non-constitutional options for people harmed by the state of Iowa and/or its employees. The Iowa Tort Claims Act (“ITCA”), which governs non-constitutional tort claims against the State and its employees, allows negligence claims against the State but excludes most intentional tort claims. 5 Plaintiffs with intentional tort claims against the State or a state employee are generally out of luck unless they have a constitutional claim, as state employees are immune from liability for torts committed within the scope of employment, including intentional torts. 6 The one exception is that claims for intentional infliction of emotional distress can be brought against the state under the ITCA. 7 However, the ITCA also includes cumbersome requirements for plaintiffs. 8

Local governments and local government employees are subject to a higher degree of liability than the State and its employees. Under the Municipal Tort Claims Act, liability is the rule while immunity is the exception, and municipalities are generally liable for the torts of their employees, including intentional torts. 9 Local government employees are generally personally liable only when “actual malice or willful, wanton and reckless misconduct is proven.” 10