This article was originally published in: November/December 2021, Advocate, Volume XL No. 01, p. 12, Flipping the Odds on Civil Rights Claims With a Battle Born Version of 42 U.S.C. § 1983
If you want something done right, you must do it yourself. In the past year, state and local governments have put this sentiment into practice by introducing legislation that gives plaintiffs private rights of action for civil rights claims to address the pervasive injustice caused by qualified immunity. Instead of forcing plaintiffs to gamble with their civil rights claims in an environment where the house nearly always wins, states are working to even the odds. Nevada should follow suit and enact its own version of 42 U.S.C. § 1983.
42 U.S.C. § 1983 was originally enacted as part of the Ku Klux Klan Act of 1871 to enforce the Fourteenth Amendment and protect peoples’ “life, liberty and property.”1 In 1967, nearly a century after the Act was passed, the Supreme Court of the United States created the doctrine of qualified immunity, out of whole cloth, to shield government actors from civil liability.2
Qualified immunity, in the words of Justice Sotomayor, has rendered constitutional protections “hollow.”3 It strips citizens of the constitutional protections § 1983 was designed to preserve, with the Supreme Court “sanctioning a ‘shoot first, think later’ approach to policing.”4 By creating qualified immunity by fiat and requiring that a constitutional violation be “clearly established”5 before a government official can be held liable, the Supreme Court effectively de- legislated Congress and overruled the Constitution itself. Although the Supreme Court stated that §1983 “on its face does not provide for any immunities,”6 it has nonetheless created an immunity to provide protection “to all but the plainly incompetent or those who knowingly violate the law.”7 Qualified immunity has “hamper[ed] the development of constitutional law,” is “unduly deferential to government interests,” and sends a message that government actors can “disregard the law without consequence.”8
Beginning in 2020, states like Colorado,9 New Mexico10 and Connecticut,11 as well as the City of New York12 introduced legislation to allow plaintiffs to bring state constitution civil rights claims. Massachusetts’ law allows its Attorney General to bring a civil action, stating that no law enforcement officer shall be immune from civil liability when the conduct at issue was “knowingly unlawful” or “not objectively reasonable.”13 This trend of states and local governments taking the issue of civil rights into their own hands is an important step in leveling the playing field and protecting the rights of those whose Constitutional rights have been abridged by government actors
In Nevada, plaintiff lawyers can carefully plead claims to hopefully survive a dismissal on qualified immunity grounds, but that is a crap shoot, with loaded dice. Even if a plaintiff survives a motion to dismiss, the defendant is free to re-raise the defense on summary judgment, interlocutory appeal, as a pre-trial motion, and even after the jury has rendered a verdict.14 A denial of qualified immunity only becomes the law of the case when an appellate court denies qualified immunity, and only after trial stands when several factors are satisfied.15
One option is for plaintiffs to do a public records request under NRS 239 and use prior incidents as evidence that the law was clearly established since the Ninth Circuit has held that a constitutional violation can be deemed to be clearly established when a party “repeatedly litigates an issue, repeatedly loses, but avoids an adverse appellate decision by opting not to appeal.”16
More options for plaintiffs in Nevada include: 1) seeking equitable relief on § 1983 claims because qualified immunity does not apply to claims for equitable relief;17 and 2) combining § 1983 claims with tort claims, but those claims are subject to the sovereign immunity caps18 applied on a “per person per claim basis”19 with “one statutory limitation for each cause of action, regardless of the number of actors.”20
Another option is for plaintiffs to allege violations of the Nevada Constitution. The Nevada Constitution states that “[n]o person shall be deprived of life, liberty, or property, without due process of law”21 and protects against unreasonable searches and seizures.22 While the Tenth Amendment to the United States Constitution reserves rights to the states,23 Article I, Section 20 of the Nevada Constitution reserves the rights retained by the people.24 NRS 41.0334 states that an action cannot be brought against “an officer or employee of the state or any of its agencies or political subdivisions for injury, wrongful death or other damage … by a person who was engaged in any criminal act.”25 This section, however, does not apply if the “action for injury, wrongful death or other damage […] result[ed] from the deprivation of any rights, privileges or immunities secured by the […] Constitution of the State of Nevada.”
The Nevada Supreme Court has held that the Nevada Constitution protects “individuals from state actions that deprive them of life, liberty, or property without due process of law.”26 Further, conduct causing the deprivation of a federal right can be attributable to the State.27 Recently, the questions of whether there is private right of action under the Nevada Constitution, Article 1, § 8 and Article 1, § 18, whether there are any immunities that a state actor defendant can raise as a defense, and if a private right of action exists, what remedies are available to a plaintiff for these claims, were certified to the Nevada Supreme Court by Judge Andrew P. Gordon on July 17, 2020, and are currently pending with the Nevada Supreme Court in Case No. 81513.28 In other words, we are waiting for the Nevada Supreme Court to turn the card on civil rights claims.
Nevada should follow the trend started by Colorado, New Mexico, Connecticut, Massachusetts and the City of New York and enact a state statute that: 1) mirrors 42 U.S.C. § 1983; 2) allows a private right of action under the Nevada Constitution; and 3) unambiguously disallows any type of immunity. Like 42 U.S.C. § 1988, a plaintiff who prevails in the lawsuit should be entitled to reasonable attorney fees.
In honor of the NJA’s 2021 Annual Convention in New Mexico, we should likewise look to the New Mexico statute that states its remedies “are not exclusive and shall be in addition to any other remedies prescribed by law or available pursuant to common law” and specifically addresses qualified immunity by stating that “no public body or person acting on behalf of, under color of or within the course and scope of the authority of a public body shall enjoy the defense of qualified immunity.”29
By joining this national trend, Nevada can guarantee that its citizens receive justice. We must take the issue of civil rights into our own hands to ensure that it is done right. By bringing this issue to the state level, Nevada can address the civil rights violations that affect our communities and hinder the progress that 42 U.S.C. § 1983 was intended to address 150 years ago.
Andréa Vieira is an attorney at Nettles Morris practicing personal injury, medical malpractice and civil rights.
1. Hayden Carlos, Disqualifying Immunity: How Qualified Immunity Exacerbates Police Misconduct and Why Congress Must Destroy It, 46 S.U. L. Rev. 283, 298 (2019).
2. See, e.g., Pierson v. Ray, 386 U.S. 547 (1967).
3. Mullenix v. Luna, 136 S. Ct. 305, 316 (2015).
5. See e.g. Harlow v. Fitzgerald, 457 U.S. 800 (1982).
6. Malley v. Briggs, 475 U.S. 335, 342 (1986).
8. Joanna C. Schwartz, The Case Against Qualified Immunity, 93 Notre Dame L. Rev. 1797, 1800 (2018).
9. Colorado Rights Act HB20-1287, https://leg.colorado.gov/bills/ hb20-1287.
10. HB 0004, https://www.nmlegis.gov/Sessions/21%20Regular/ bills/house/HB0004.pdf.
11. HB 6004, signed into law Jul 31, 2020, https://www.cga. ct.gov/2020/ACT/PA/PDF/2020PA-00001-R00HB-06004SS1-PA.PDF.
12. Local Law 48, https://legistar.council.nyc.gov/Legislation- Detail.aspx?ID=4771043&GUID=32ED0C83-7506-45F9-81AA- F5144FCA193A&Options=&Search=
13. Mass. General Laws c.12 § 11H(b), https://www.mass.gov/info- details/mass-general-laws-c12-ss-11h.
14. Although it is not a Ninth Circuit case, the procedural history of Harris v. O’Hare, 770 F.3d 224 (2d Cir. 2014) is illustrative of this proce- dural anomaly for qualified immunity cases.
15. Leslie Salt Co. v. United States, 55 F.3d 1388, 1392 (9th Cir. 1995).
16. Sorrels v. McKee, 290 F.3d 965, 971 (9th Cir. 2002).
17. Grantham v. Trickey, 21 F.3d 289, 295 (8th Cir. 1994); see also Au- vaa v. City of Taylorsville, 506 F. Supp. 2d 903 (D. Utah 2007).
18. NRS 41.035
19. Cty. of Clark, ex rel. Univ. Med. Ctr. v. Upchurch, 114 Nev. 749, 759 (1998).
21. Nev. Const. art. I, § 8(2)
22. Nev. Const. art. I, § 18 (“The right of the people to be secure
in their persons, houses, papers and effects against unreasonable seizures and searches shall not be violated; and no warrant shall issue but on probable cause, supported by Oath or Affirmation, particularly describing the place or places to be searched, and the person or per- sons, and thing or things to be seized.”)
23. See U.S. Const. amend. X
24. Nev. Const. art. I, § 20 (“This enumeration of rights shall not be construed to impair or deny others retained by the people.”)
25. NRS 41.0334
26. Saticoy Bay LLC Series 350 Durango 104 v. Wells Fargo Home Mortg., a Div. of Wells Fargo Bank, N.A., 133 Nev. 28, 30, 388 P.3d 970, 972 (2017).
27. See, e.g., Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982).
28. See http://caseinfo.nvsupremecourt.us/public/caseView. do?csIID=59453
29. See https://www.nmlegis.gov/Sessions/21%20Regular/bills/ house/HB0004.pdf