Can you sue under a state civil rights statute?
While the New Jersey Supreme Court has long recognized an implied damages cause of action for constitutional violations, the main avenue for constitutional claims for damages is currently the New Jersey Civil Rights Act of 2004. Importantly, qualified immunity is still an obstacle.
The New Jersey Tort Claims Act
New Jersey courts abrogated the doctrine of sovereign immunity in 1970. 1 However, the State’s legislature responded with the New Jersey Tort Claims Act (“NJTCA”), which reestablished immunity for public entities, with only limited exceptions in which government entities can be held liable under a theory of respondeat superior. 2 Under the NJTCA, public entities are liable for certain instances of negligence while public employees are liable for common-law negligence and intentional torts. 3 However, both public entities and employees enjoy several statutory and common-law exceptions to liability, such as an exception for “discretionary functions.” 4
The New Jersey Civil Rights Act
While the New Jersey Supreme Court has long recognized an implied damages cause of action for constitutional violations, the main avenue for constitutional claims for damages is currently the New Jersey Civil Rights Act of 2004 (“NJCRA”). 5 New Jersey is one of eight states to enact a statute creating a private right of action for damages arising from violations of its constitution. 6 The NJCRA allows lawsuits against “persons” interfering with or depriving someone of their rights under the New Jersey Constitution. 7 Analysis under the NJCRA generally mirrors that for Section 1983. 8 Accordingly, New Jersey courts have granted government officials qualified immunity from lawsuits under the NJCRA when the officials did not violate “clearly established law.” 9 Fortunately, claims under the NJCRA are not subject to the requirements of the NJTCA. 10
In addition to this statutory right of action, New Jersey courts have long provided compensatory damages against governmental entities for breaches of state constitutional rights. 11 The Supreme Court of New Jersey held that these rights of action were not limited by sovereign immunity or subject to the requirements of the NJTCA. 12 Unfortunately, the vitality of this case law is unclear now that that the legislature has provided a statutory right of action for civil rights violations.