Louisiana earns a C– for its immunity and accountability practices.
Can you sue for damages directly under the state constitution?
Yes. In at least one case, the Louisiana Supreme Court has recognized a right to damages for injuries suffered because a state agent violated a state constitutional right to privacy.
Can you sue under a state civil rights statute?
No. There is no Section 1983 analogue in Louisiana.
Can you sue under a state tort claims act?
Yes. The Louisiana Constitution abolished government immunity in tort and contract cases. The Louisiana Governmental Claims Act governs claims against the State and political subdivisions.
Are there exceptions to the state tort claims act?
Yes. Government officials and entities are exempt from liability for the exercise or performance of (or the failure to exercise or perform) policy-making or discretionary acts within the course and scope of their powers and duties.
A Constitutional Abolition of Governmental Immunity
Louisiana is unique in that the Louisiana Constitution abolished government immunity in tort and contract cases: “Neither the state, a state agency, nor a political subdivision shall be immune from suit and liability in contract or for injury to person or property.” 1
However, the legislature may limit damages in cases against the government and government officials. 2
The result is that “judgments rendered against the State are payable only by specific appropriation by the legislature.” 3
Louisiana government liability is limited also by a statutory provision granting discretionary immunity. 4
In a recent decision, the Louisiana Supreme Court even extended prosecutorial immunity to intentional bad acts, despite this statutory provision’s express withdrawal of immunity from public officers for “criminal, fraudulent, malicious, intentional, willful, outrageous, reckless, or flagrant misconduct.” 5
Robust Tort Claims and Precarious Constitutional Rights
In at least one case, the Louisiana Supreme Court recognized a right to damages for injuries suffered because a state agent violated a state constitutional right to privacy. 6
For state constitutional violations, Louisiana courts undertake a qualified-immunity analysis resembling the federal qualified-immunity doctrine. 7
While Louisiana’s constitutional right of action for damages is precarious, plaintiffs harmed by the government will have more certainty when they bring tort claims against the state government and officials, which is governed by the Louisiana Governmental Claims Act (“LGCA”). 8
LGCA lays out procedural rules for contract and tort claims against the government, including a statutory cap on damages and a provision stating that a suit against “the state or a state agency or political subdivision” must be brought in “Louisiana state court.” 9
Fortunately for plaintiffs, Louisiana law generally permits tort claims, including intentional tort claims, to be filed against government employees. Louisiana law also permits victims of a tortfeasor to sue their employer under a theory of vicarious liability. 10
This has been applied in cases involving intentional torts and a government employer. 11
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