The Supreme Court of North Carolina recognized a constitutional right to damages under the free speech provision of the North Carolina Constitution, stating: “[I]n the absence of an adequate state remedy, one whose state constitutional rights have been abridged has a direct claim against the State under our Constitution.” 1
Notably, sovereign immunity does not protect the State or its counties against claims brought against them directly under the North Carolina Constitution. 2
The North Carolina constitutional right of action is the opposite of Section 1983 and Bivens claims in that while plaintiffs can recover against the State and its municipalities for violations of constitutional rights, there is no constitutional right of action for damages against government officials in their personal capacities. 3
There are 14 more states that recognize an implied constitutional cause of action, but North Carolina is the most promising one, since, among other things, it has not introduced qualified immunity as a defense to such claims.
Tort Claims Against the Government and Government Officials
When tort claims are sufficient to remedy the harm, constitutional claims will generally not be available. 4
Plaintiffs can bring tort claims against the state under the North Carolina Tort Claims Act (“NCTCA”), which waives the sovereign immunity of the state in those instances in which injury is caused by the negligence of a state employee and the injured person is not guilty of contributory negligence. 5
These cases must be brought in a special forum called the Industrial Commission. 6
Cities and counties are generally entitled to broad governmental immunity in the exercise of government functions, but they waive immunity to the extent that they purchase liability insurance. 7
Public employee immunity and liability is governed by common law. Under the common law doctrine of public official immunity, “a public official is immune from suit unless the challenged action was (1) outside the scope of official authority, (2) done with malice, or (3) corrupt.” 8
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