This article was originally published in: the “Five Things” issue of Communiqué (Feb. 2023), the official publication of the Clark County Bar Association. See https://clarkcountybar.org/member-benefits/communique-2023/communique-february-2023/
On December 29, 2022, the Supreme Court of Nevada issued its opinion in the matter of Mack v. Williams, a landmark decision for civil rights cases in Nevada. Mack recognized the self-executing right of people to file, at minimum, a search and seizure civil rights claim for monetary damages under the Constitution of the State of Nevada. Notably, these claims are not subject to qualified immunity.
Plaintiff Sonjia Mack filed a civil rights action in federal court under 42 U.S.C § 1983 and alleged violations of the Nevada Constitution after she was strip searched and interrogated at High Desert State Prison when she went to visit her boyfriend. Mack alleged violations of Nev. Const. art. I, § 8 which states, “[n]o person shall be deprived of life, liberty, or property, without due process of law” and Nev. Const. art. I, § 18 which states “[t]he right of the people to be secure in their persons, houses, papers and effects against unreasonable seizures and searches shall not be violated . . .” Judge Andrew Gordon certified questions such as whether there is a private right of action under the Nevada Constitution and if so, whether any immunities apply.
The Supreme Court of Nevada held that a private right of action under Article 1, Section 18 (the search and seizure claim) for retrospective monetary relief exists; the search and seizure rights are “self-executing” and “inherently enforceable;” and that qualified immunity is not a defense to the claims in the absence of legislative authorization. The court adopted framework from Katzberg v. Regents of Univ. of Cal., 58 P.3d 339 (2002), as well as factors set forth in § 874A of the Restatement (Second) of Torts for determining whether a provision of the Nevada Constitution can be the basis of a civil rights damages action.
The Mack decision still leaves some questions unanswered:
- Do the sovereign immunity damages limitations from NRS 41.035, known as tort caps, apply to state constitutional claims? NRS 41.035 states that tort caps apply to “actions sounding in tort… against a present or former officer or employee of the State or any political subdivision… arising out of an act or omission within the scope of the person’s public duties or employment.” However, the court disagreed that any commonalities between state tort-law claims and constitutional protections provide meaningful recourse for violations of a constitutional right because state tort law protects and serves different interests than constitutional guarantees, and it held that only the legislature can waive or restore sovereign immunity to state actors.
Other questions include:
- What statute of limitations applies? § 1983 actions follow the state’s tort law statute, which in Nevada is two years per NRS 11.190(4), but civil rights claims could fall under the four-year statute of limitation under NRS 11.220’s catchall provision.
- Can plaintiffs bring search and seizure claims, or other Nevada Constitution based claims that meet the Katzberg framework, in state court without asserting § 1983 claims?
- Can plaintiffs participate in the court-annexed arbitration program in Clark County if there is a probable jury award value less than $50,000?
- Can claims that have a value less than $15,000 be filed in justice court?
- Can plaintiffs seek punitive damages as under § 1983?
- What about attorney fees? Nevada state court practitioners can use an offer of judgment to recover discretionary attorney fees. However, there is statutory right to attorney fees in § 1983 cases under 42 U.S.C. § 1988; plaintiffs can seek fees after a judgment, when they achieve a consent decree, or enter into a legally enforceable settlement agreement against the defendant.
Mack recognized the remedy to vindicate violations of the people’s long-standing and self-executing state constitutional rights, which cannot be abridged of impaired by statute. The next step is providing the framework for the exercise of these remedies. Similar to Colorado, New Mexico, Connecticut, Massachusetts, and the City of New York, the Nevada Legislature can codify the practical components of a state civil rights action, including making it clear that no immunity, qualified or otherwise, will excuse a violation.