Nebraska is one of a handful of states to enact a statute creating a private right of action for damages based on violations of its constitution, though we don’t count it in our tally. 1
That’s because, in a significant departure from other states with civil rights statutes, Nebraska has interpreted its civil rights statute to be inapplicable against government actors. 2
Despite the relatively broad language of the statute, Nebraska courts have limited its application to “private acts of discrimination, presumably of constitutional dimension, by private employers.” 3
The Nebraska State Tort Claims Act (“NTCA”) governs claims against the State and its employees acting within the scope of their employment. 4
The NTCA says that the State is liable “to the same extent as a private individual under like circumstances,” but then creates broad exceptions, including for intentional torts, discretionary functions, and the execution of a statute or a regulation. 5
Even worse, Nebraska courts have held that sovereign immunity applies to both the State and its employees, by interpreting the NTCA to disallow personal-capacity suits against state employees acting within the scope of employment. When a state employee is acting within the scope of employment, a plaintiff must sue the State or the employee in his official capacity, and the claim will be subject to all the exemptions and requirements of the NTCA. 6
This interpretation has had the effect of immunizing both the State and its employees from intentional tort liability.
Nebraska’s Political Subdivisions Tort Claims Act governs liability of cities, towns, and counties and is very similar to the NTCA. 7
Like the State, political subdivisions are not liable for intentional torts. 8
And like state employees, political-subdivision employees are immune in their personal capacities from lawsuits based on actions occurring within the scope of employment. 9
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