Last year, two state supreme courts, within five months of each other, issued two decisions allowing damages suits directly under their state constitutions, unencumbered by a state equivalent of qualified immunity. The first decision came from the Michigan Supreme Court, which recognized an implied right of action for damages under the due process clause of the Michigan Constitution.[1] The second decision came from the Nevada Supreme Court in Mack v. Williams, which recognized an implied right of action for damages under the unreasonable searches and seizures clause of the Nevada Constitution.[2] Importantly, the Mack court said no type of official immunity can attach to such a suit without explicit approval by the state legislature.[3]

Previously, the only other state to do this was Montana. In 2002, the Montana Supreme Court allowed damages suits directly under its constitution, so long as the constitutional provision is self-executing.[4] Just like in Michigan and Nevada, such an ability to sue is not burdened by immunity.[5]These cases are noteworthy because the two state courts chose to expand their remedies at the time when the U.S. Supreme Court went in the opposite direction and held that damages suits under the U.S. Constitution, without explicit congressional authorization, are generally prohibited.[6] State courts “remain free to interpret our own constitutional provisions as we see fit, regardless of any similarities between our state and federal constitutions.”[7] While Michigan and Nevada decisions will not help plaintiffs with claims against federal officials,[8] plaintiffs with claims against state and local officials now have options, especially in those two states.

Facts and Procedural Background

Sonjia Mack sued two Nevada prison officials for strip searching her without reason after she tried to enter High Desert State Prison to visit an inmate.[9] Mack brought her claims—among which was a damages claim directly under a Fourth Amendment analogue in the Nevada Constitution (Article 1, Section 18)—in federal court. Defendants argued that state-law claims must be dismissed, since there was “no private right of action under the Nevada Constitution.”[10] Based on this argument, the district court certified four questions to the Nevada Supreme Court, including two that the high court rephrased and agreed to hear: whether there was a private right of action under Article 1, Section 18, and whether such a right of action, if it exists, comes with a defense of qualified immunity.[11]

Opinion

In an opinion written by Justice Elissa Cadish, the Nevada Supreme Court recognized a private right of action for unreasonable searches and seizures directly under the Nevada Constitution, while at the same time refusing to allow a qualified immunity defense for such claims.

In the process, it introduced a framework for evaluating whether other constitutional provisions contain such a right. According to the framework, courts must first ask: Is the constitutional provision at issue self-executing? If it isn’t, then no private right of action can be recognized.[12] If it is, then plaintiffs can proceed to additional steps of the framework, namely:

  • whether the legislature spoke in favor of or against a damages remedy,
  •  if unclear, whether a damages remedy would be in furtherance of the purpose of the provision and whether a damages remedy is needed to assure the effectiveness of the provision,
  • and if so, whether special factors should lead a court to hesitate in recognizing a damages action.[13]

The first and last bullet points borrow directly from a seminal, though now disfavored, U.S. Supreme Court case recognizing a damages remedy directly under the Fourth Amendment, Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics.[14] The middle bullet point is an application of the constitutional-torts analysis embodied in the Restatement (Second) of Torts § 874A, mostly focusing on the existence of alternative remedies to address the constitutional violation.[15]

The court referred to this multi-step inquiry as “the Katzberg framework,” in recognition that it is borrowed from Katzberg v. Regents of the University of California.[16] The court then applied the framework as follows:

Step 1: Is the provision self-executing?

The court said the Nevada Constitution’s provision against unreasonable searches and seizures is self-executing. That’s because Article 1, Section 18 guarantees “[t]he right of the people to be secure in their persons, houses, papers and effects against unreasonable seizures and searches.”[17] The language, according to the court, imposes “a limitation” on the state’s power to act, not “an affirmative obligation.” When such a limitation exists, i.e., when a constitutional provision “prohibits certain conduct by the government, as opposed to indicating a general principle or line of policy,” then people should be free to enjoy or enforce such rights, without depending on a legislative enactment.[18]

Step 2: Did the legislature explicitly endorse or disavow a damages remedy?

The Nevada legislature neither “explicitly authorize[d] a right of action for money damages” nor “explicitly preclude[d] a right of action for money damages.”[19] Furthermore, at the time the provision was enacted, the entire Article 1 of the Nevada Constitution neither expressly authorized nor expressly prohibited damages. As a result, the court said, there is no “affirmative indication of intent.”[20]

Step 3: Would the damages remedy be in furtherance of the purpose of the provision? Is it needed to assure the provision’s effectiveness?

A damages remedy for unreasonable searches and seizures would be in furtherance of the purpose of the provision because “the Legislature has not crafted a meaningful alternative remedy for the constitutional violation[],”[21] and as a result, there isn’t “a deterrent to government illegality.”[22] First, the legislature did not even authorize injunctive and declaratory relief. Second, even if it had, “equitable relief rarely, if ever, suffices to remedy a past wrong.”[23] State tort law similarly doesn’t provide “meaningful redress for invasions of the constitutional right at issue here.”[24] “A state actor’s legal obligation under a state constitution extends far beyond that of his or her fellow citizens under tort law” as “a state actor is not only required to respect the rights of other citizens but [is also] sworn to protect and defend those rights.”[25]

Furthermore, Nevadans have a fundamental right to be free from unreasonable searches and seizures.[26] The serious nature of the provision “demands that this court exercise its authority and responsibility to enforce the limitation[],” especially since a recognition of a damages remedy here will not create additional burdens on the judiciary or on state actors or “interfere with existing principles related to search-and-seizure jurisprudence.”[27]

Step 4: Are there additional special factors that should lead a court to hesitate in recognizing a damages remedy?

There are no such special factors. First, “no legislative judgments regarding a damages action for constitutional violations exist to which to accord deference.”[28] Second, a private right of action here would not “impose new limitations on government conduct, given the already developed status of search-and-seizure jurisprudence.” If anything, the lack of private right of action would produce “adverse policy consequences insofar as it renders illusory the guarantees of the Nevada Constitution.”[29] Third, Nevada’s legislature already consented to damages liability by waiving sovereign immunity and generally indemnifying its employees.[30] Finally, damages are “a traditional—and indeed, preferred—remedy for legally recognized wrongs,” and there is no specific reason “to treat enforcement of constitutional rights through monetary relief any differently from cases permitting injunctive relief.”[31]

After applying the Katzberg framework, the court concluded that “a private right of action under Article 1, Section 18 for retrospective monetary relief exists.”[32] In addition, the court held that “[q]ualified immunity is not a defense” to such a private right of action.[33]

First, “qualified immunity, as a federal doctrine, does not protect government officials from liability under state law.”[34] More fundamentally, Nevada has a broad waiver of sovereign immunity and has never “provided for a state-law equivalent of qualified immunity.”[35] By getting ahead of the legislature and introducing a qualified immunity type defense here, the court would undermine the separation of powers and act against the legislature’s wishes in the legislative space. “Thus, we answer the second, rephrased certified question in the negative: qualified immunity is not a defense to a private damages action under Article 1, Section 18.”[36]

In sum, in this unanimous opinion, the Nevada Supreme Court “recognize[d] the long-standing legal principle that a right does not, as a practical matter, exist without any remedy for its enforcement.”[37] Furthermore, the court refused to impose a defense of immunity for a violation of such a right without explicit authorization by the legislature.[38]

[1] Bauserman v. Unemployment Ins. Agency, 983 N.W.2d 855, 859 (Mich. 2022). See Anya Bidwell, State Court Docket Watch: Bauserman v. Unemployment Insurance Agency (Nov. 7, 2022), available at https://fedsoc.org/commentary/publications/bauserman-v-unemployment-insurance-agency.

[2] Mack v. Williams, 522 P.3d 434, 450 (Nev. 2022).

[3]Id.; see alsoSmith v. Dep’t of Pub. Health, 410 N.W.2d 749, 751 (Mich. 1987).

[4] Dorwart v. Caraway, 58 P.3d 128, 136 (Mont. 2002).

[5] There are at least seventeen states that imply causes of action for damages directly under their constitutions. Megan Cairns, 50 Shades of Government Immunity, Institute for Justice (updated May 5, 2023), available at https://ij.org/report/50-shades-of-government-immunity/. But most of these implied rights of action are limited by immunities or have additional requirements that make them difficult to pursue. See, e.g., id. (a state profile of New York).

[6] Egbert v. Boule, 142 S. Ct. 1793, 1803 (2022). The Iowa Supreme Court recently joined the U.S. Supreme Court in holding that courts can’t imply remedies under the Iowa Constitution without explicit legislative authorization. Burnett v. Smith, __ N.W.2d __, 2023 WL 3261944 (Iowa 2023).

[7]Mack, 522 P.3d at 444 (cleaned up).

[8]See 28 U.S.C. § 2679 (prohibiting suits against federal officials in state courts, when these officials act within the scope of their employment).

[9]Mack, 522 P.3d at 439.

[10]Id.

[11]Id. at 441.

[12]Id. at 441-42.

[13]Id. at 447-49.

[14]403 U.S. 388(1972).

[15]Mack, 522 P.3d at 448-50.

[16] 58 P.3d 339, 350 (Cal. 2002). California has never recognized an implied cause of action. It nonetheless provided a framework for doing so. The cases brought under the California Constitution are few and far between, probably because the state has a robust civil rights statute called the Baynes Act. It is also unclear whether such claims can be burdened by an immunity defense. See Cairns, supra note 5 (state profile for California).

[17]Mack, 522 P.3d at 442 (cleaned up)

[18]Id. (cleaned up) (citing Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803)); see also id. at 446 (stating that constitutional rights can’t be a “mere hope”).

[19]Id. at 445.

[20]Id.

[21]Id. at 448 (cleaned up)

[22]Id. at 449.

[23]Id. at 448.

[24]Id.

[25]Id. (cleaned up).

[26]Id. at 449.

[27]Id.

[28]Id.

[29]Id.

[30]Id.

[31]Id. at 450.

[32]Id.

[33]Id.

[34]Id.

[35]Id. at 451.

[36]Id.

[37]Id.

[38]Id.

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