Nevada

quick facts

Implied Right of Action for Damages is Available in Nevada

On December 29, 2022, the Nevada Supreme Court concluded that “a private right of action against state actors for retrospective monetary relief exists to enforce search and seizure rights under Article I, Section 18 of the Nevada Constitution.” ¹ Importantly, according to the Court, “[t]he Nevada Constitution places limitations on legislative action, while it leaves interpretation and enforcement of the Nevada Constitution to the judiciary.” ² Furthermore, “[o]ur caselaw makes clear that when it comes to the self-executing rights contained within our Constitution’s provisions, the Legislature lacks the authority to pass legislation that abridges or impairs those rights; likewise, the availability of remedies that follow from violations of those rights does not depend on the Legislature’s benevolence or foresight.” ³ This logic can be applied beyond the search and seizure context and extend to other self-executing constitutional provisions in Nevada. The court defines “self-executing” broadly, to include constitutional provisions that “prohibit certain conduct by the government, as opposed to indicating a general principle of line of policy.” ⁴ Qualified immunity is not a defense for constitutional claims under the Nevada Constitution. After all, the Nevada Legislature broadly waived “the State’s [and a state actor’s] immunity from liability.” ⁵ Legislature has not provided for a state-law equivalent of qualified immunity in the manner it exists under federal law. Absent such “express exception to the waiver” of immunity, courts cannot supply the defense of qualified immunity to claims under the Nevada Constitution. ⁶

Nevada Tort Claims Act

Nevada broadly waives sovereign immunity but implements strict damages caps to limit recovery against the government entities or their employees. The Nevada Tort Claims Act (“NTCA”) provides that the State, its agencies, and political subdivisions are liable “in accordance with the same rules of law as are applied to civil actions against natural persons and corporations.” ⁷ Although municipalities do not technically fall under the NTCA’s definition of “political subdivisions,” Nevada courts have applied the statute to municipalities. ⁸

Government employees are liable for their own torts but enjoy immunity for discretionary functions and the exercise of due care “in the execution of a statute or regulation.” ⁹ A special provision also immunizes firefighters and police officers for negligent acts or omissions unless: “1) The firefighter, officer or other person made a specific promise or representation to a natural person who relied upon the promise or representation to the person’s detriment; or 2) The conduct of the firefighter, officer or other person affirmatively caused the harm.” ¹⁰ These immunities apply not only to the government employees, but also to the government employer. Government employees are indemnified for acts committed within the scope of employment unless they do not cooperate with the defense or the act or omission they committed was wanton or malicious. ¹¹

Compared to other states, Nevada has one of the strictest damages limits in its tort claims act. All claims against government entities and government officers or employees are capped at $150,000. ¹² This damages cap appears to include claims for the wanton or malicious acts of government employees.