Nevada’s Top Court Says Cops Can Now Be Sued For Rights Violations, Won’t Have Access To Qualified Immunity

from the now-do-it-everywhere-else dept

Cops in Nevada had better start behaving. The state’s Supreme Court has handed down a ruling that not only guarantees residents the right to sue under state law, but won’t allow officers to easily escape lawsuits by asking for qualified immunity.

Here’s the background of the case, as summarized by Nick Sibilla at Forbes:

What became a pivotal ruling for civil rights started because Sonja Mack just wanted to see her boyfriend. Back in 2017, Mack traveled to High Desert State Prison to visit her partner, who was then behind bars. While waiting, Mack said she was approached by two correctional officers, who then conducted a “demeaning and humiliating” strip search of Mack. Even though officers didn’t find any drugs or contraband, the prison still banned Mack from seeing her boyfriend and revoked her visitation privileges.

Mack sued, arguing that being strip searched violated her rights under the Nevada Constitution.

The problem facing Mack is that the Nevada legislature had never passed a law that expressly granted residents a right to sue government employees at the state level for constitutional violations. And no court had apparently been asked in a persuasive way to do what the state legislature had failed to do.

The defendant, the Nevada Department of Corrections, argued the lack of legislation meant only the state could punish corrections officers for civil rights violations. Fortunately, the state Supreme Court disagrees.

[W]e reject the NDOC parties’ assertion that state tort law provides meaningful redress for invasions of the constitutional right at issue here. Although other courts have determined tort remedies suffice to compensate for personal invasions of certain constitutional rights, […] we disagree that any commonalities between state tort-law claims and constitutional protections… provide meaningful recourse for violations of the constitutional right against unreasonable searches and seizures by government agents, as state tort law ultimately protects and serves different interests than such constitutional guarantees.

The NDOC thinks everything should be limited to tort law, which really doesn’t cover constitutional violations. The government would apparently prefer it never be held responsible for violating rights. The court says that’s not acceptable.

Absent a damages remedy here, no mechanism exists to deter or prevent violations of important individual rights in situations like that allegedly experienced by Mack. Thus, a damages remedy is warranted under this factor of the Restatement test, as monetary relief remains necessary to enforce the provision for individuals in Macks shoes, and a damages remedy furthers the purpose of the search-and seizure provision to the extent it acts as a deterrent to government illegality.

As the court notes later in the decision, a right without a remedy for enforcement can hardly be called a right.

Now, on to the NDOC’s attempt to have the court adopt the qualified immunity doctrine found at the federal level (and in several states). The court points again to the legislature, noting that it has never attempted to create anything resembling state-level qualified immunity for government employees. If it legislated from the bench, the court says it would “undermine this State’s public policy, reflected in NRS 41.031, that [state actors] ‘should generally take responsibility when [they] commit wrongs.'”

This is the court’s final say on that matter:

Accordingly, qualified immunity, as that doctrine is understood under federal law, is not a defense available to state actors sued for violations of the individual rights enumerated in Nevada’s Constitution.

That’s it. The court recognizes a right to sue government employees for constitutional violations. And qualified immunity won’t be an option. So, either cops (and corrections officers) will need to start doing better respecting Nevada residents’ rights. Or they’re going to have to try to talk courts (at both state and federal level) into allowing them to move state law cases to federal court where they can possibly score themselves a little QI. Either way, civil rights suits will take more than a motion filled with qualified immunity boilerplate to get government employees dismissed.

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Comments on “Nevada’s Top Court Says Cops Can Now Be Sued For Rights Violations, Won’t Have Access To Qualified Immunity”

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Anonymous Coward says:


I was going to say the same thing.

I am still not sure much will change unless those violating rights are personally responsible. If any settlements are paid out of taxpayer coffers, what incentive is there for anyone to change their ways?

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That One Guy (profile) says:

Re: Re: Re: An entire profession of mindless puppets, truly a tragedy

It always breaks my heart when someone reminds me about how cops are mind-controlled by the public and have no choice in their words and deeds, utterly incapable of choosing what they say and do and instead enthralled by the public that directs their every action.

Of all the professions that must suffer under such heinous mind control why oh why did it have to be police…

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The good cops says:


Except regular folk don’t put their lives on the line to protect people they don’t even know. Hence the likelihood of them being sued is significantly lower. All this decision does it make the wealthy immune from the law. The wealthy will just sue any individual cop that holds them accountable for violating said laws. Interesting how the state judiciary is immune to this rule.

This comment has been deemed insightful by the community.
That One Guy (profile) says:

RIP Nevada, soon to be a anarchistic hellstate...

Don’t the courts know that if law enforcement face even the tiniest smidgen of accountability and aren’t allowed to violate rights and lives with total immunity that it’s impossible for them to do the job(just ask their unions)?

Nevada’s SC might as well have disbanded the state law enforcement force entirely with this ruling as nothing will be able to be done now with officers paralyzed in terror that violating the rights of the public and/or breaking the law might carry the dreaded consequences, and since it’s impossible to do the job without violating rights and/or the law then it would seem the profession has been ruled to be illegal in the state until saner minds step in and once more make clear: ‘You only have to follow the law if you’re not tasked with upholding it’.

David says:


You are trying to be sarcastic, but of course the question about how the legal situation between police officials and a citizen patrol should be different is valid. In states with strict gun control, of course being allowed to carry weapons constitutes one difference (note that UK officers don’t, as a rule, carry guns).

When officers are supposed to be the means through which the government exercises its use-of-force monopoly in order to enforce laws, the question how officers acting in the course of enforcing the law can be acting without risking their livelihood.

“Qualified Immunity” is certainly addressing this problem. But for one thing, its current outgrowths in expectations and behavior of officers and courts is way out of whack.

For another, it’s an invention by the Supreme Court, and the Supreme Court is not supposed to invent laws but to administer them. Now of course lawmakers are quite often willing to put out law-and-order laws that are anything but lawful, but in that case the Supreme Court is supposed to rein them in such that the Bill of Rights is not being violated.

In other words: the U.S. legal system is broken from the inside, rotten from the core.

Which is not good news, and nobody tasked with upholding it is eager to fix it.

Frodo Douchebaggins says:


More proof that QI reform is overdue. However, because people can sue for anything we will see a significant number of frivolous lawsuits against police alongside legitimate actions. Taxes will rise as police that DID act within the scope of their employment will have to be defended by the municipality. Police will not risk a suit, so enforcement will drop significantly.

Which was probably the idea.

Bodach Ceannmor (profile) says:


Qualified Immunity should only apply to people who are trained to make split-second decisions …

I find the possibilities intriguing, based in the Court’s decision that Nevada has no QI legislation …

Does that not suggest that Nevada Judges do not have Qualified Immunity for their decisions ?

If there are any judges in Nevada who have let violent criminal re-offenders who are charged with a violent crime out on little or no bail pending their trial, and if that violent criminal re-offender commits yet another violent crime, if judges don’t have QI, might that make that judge an accessory before the fact ?

Anonymous Coward says:

The problem facing Mack is that the Nevada legislature had never passed a law that expressly granted residents a right to sue government employees at the state level for constitutional violations.

Lmao, that isn’t how rights work, so it is incredibly sad and frightening that an argument such as this would even have the merest hint of a thought of existing.

David says:


Lmao, that isn’t how rights work,

Except that it is. Rights, like those spelled out in the Bill of Rights, do not as a rule come with their enforcement mechanisms spelt out. Which mechanisms allow you to sue for redress or punishment from/for whom is left to lawmakers, and if those mechanisms are insufficient, you have a substantive number of court battles ahead before you can even start addressing the infraction itself.

Dan says:

As a long time Nevada resident I know the state is not interested in individual rights. It is more concerned with keeping casinos, big business and unions happy. The state legislature is just beginning it’s biennial session and the new governor is the former Clark County Sheriff….a dyed in the wool badgemonkey. You can bet the farm a massive push to immunize badgemonkeys from accountability will be attempted this session.

Hominem Humilem says:

Maybe It's Time to Get Serious

I figure these two things can both be true:

(1) Law enforcement personnel have a difficult job and need a measure of protection against frivolous suits for doing their job correctly.

(2) Law enforcement personnel don’t have carte blanche to ignore the civil rights of the people.

It should be possible to craft acceptable laws that follow these guidelines, but that doesn’t mean it will be easy:

  • some lawyers make great money on frivolous lawsuits (like the recent ambulance chaser who was a serious contender for the Democrats’ nomination for President) and will fight any law that punishes frivolous suits
  • some people are very eager to sue because they think they can “hot the lottery” by way of a suit
  • police unions and many police are happy to protect the worst among them because of their fears of the ambulance chasers and lottery players bringing frivolous cases and not being immediately shown the door in court

I suspect the “fix” requires tort reform, such that the loser pays and bringing frivolous suits hurts the plaintiff…a lot. And successful suits need to result in the individual miscreants paying the bills (at least in substantial part), not the taxpayers.

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