Paths Toward Abolishing Qualified Immunity for Violations of State Constitutional Rights

A proposed state constitutional amendment to end qualified immunity in Ohio is increasingly unlikely to make it onto this fall’s ballot after a federal appellate court last week vacated an order that paved the way for the initiative to move forward.

The full U.S. Court of Appeals for the Sixth Circuit is now set to consider whether the Ohio attorney general’s obstruction of the initiative violated the plaintiffs’ federal constitutional right to political expression. Even if the outcome is favorable for the initiative’s backers, they still have multiple hurdles to clear before the question can be certified for the ballot — including approval by a state board that oversees ballot initiatives and collection of over 400,000 voter signatures — on a tight timeline.

Notwithstanding the roadblocks, the proposed amendment, which would allow police officers and other state officials to face liability for state constitutional violations, is an example of one avenue states use to can guarantee more robust rights protection than are available under the federal Constitution.

One of the highest barriers to vindication of federal constitutional rights is qualified immunity, a judge-made doctrine that allows government actors to escape liability for wrongdoing if the right at issue was not “clearly established.” This standard, the U.S. Supreme Court has said, “provides ample protection to all but the plainly incompetent or those who knowingly violate the law.”

But states are not bound to import the federal doctrine as a defense for state constitutional violations. As I explained in a previous article, state legislatures can outlaw qualified immunity in suits where plaintiffs seek damages for the infringement of state constitutional rights — and several have done just that. 

But what if lawmakers fail to act? Qualified immunity can also be abolished by the courts or, as organizers in Ohio are attempting, by constitutional amendment.

As the protector of the liberty of the minority, the state judiciary is an appropriate fount of effective remedies against state actors who interfere with state constitutional rights. It is the responsibility of “a vigilant judiciary with a full arsenal of remedies” to guard against disregard of rights sought to be justified by “sometimes short sighted popular and political sentiment,” the Montana Supreme Court has written.

Nevada’s supreme court and a Maryland appellate court have taken this sentiment seriously, repudiating qualified immunity as a defense in actions for damages caused by deprivation of state constitutional rights. And, contrary to the U.S. Supreme Court’s abrogation of the requirement that an official must act in good faith to be immune, the Vermont Supreme Court denied immunity for bad-faith invasions of the state constitution.

Collectively, these courts reasoned as follows: First, qualified immunity is a federal law doctrine created by the U.S. Supreme Court; that doctrine does not bind the states and is inconsistent with English common law, as well as state constitutional provisions requiring courts to provide a remedy for legal wrongs. Second, affording immunity is contrary to the nature of constitutional rights which — unlike common law protections — are specifically designed to protect citizens again the more serious invasion of liberty by public officials. Finally, where the entity is immune, qualified immunity leaves the citizen without a remedy, rendering the cause of action to enforce the state constitution an exercise in futility.

Not every court, however, has embraced its authority to ensure immunity does not render state constitutions meaningless. Five courts — in Arkansas, Louisiana, Maine, Massachusetts, and New Jersey — have cloned the federal test of qualified immunity onto actions for interference with rights guaranteed by the state constitution. Other courts, while not adopting the federal standard, allow officials to assert immunity set forth in state statutes. In so doing, these courts effectively empower the legislature to shield officials from accountability for rights the government has no discretion to invade.

States can also proscribe qualified immunity directly through their constitutions. Disqualifying immunity in the text of the constitution is more durable than through legislation, as successive legislatures cannot amend the constitution by a simple majority vote. For example, the Montana Constitution abrogates all governmental immunity and requires a two-thirds votes of both houses of the legislature to provide any immunity. The state supreme court relied on this provision to support its rejection of qualified immunity.

Seeking a state constitutional amendment to eliminate qualified immunity is a viable strategy in one of two circumstances. First, where approval by the legislature and adoption by the voters is required to amend the state constitution, an amendment will succeed where both the necessary legislative coalition and the majority of citizen voters needed to ratify the amendment agree that qualified immunity unfairly obstructs accountability. Alternatively, in jurisdictions where the legislators — who themselves are government employees — do not share the value their constituents place on compensating and deterring deprivations of the state constitution, immunity nonetheless can be prohibited in states where citizen initiatives can cause an amendment to be placed on the ballot, as Ohioans are trying to do.

There is no single best path towards eliminating qualified immunity. Advocates must gauge the support in their state from the three sources of authority to bar the defense — legislators, judges, and citizens — and muster the appropriate legal and policy arguments to garner the support of the chosen audience. The stakes, however, are universal. As Montana Supreme Court Justice Nelson recognized, “If an individual’s constitutional rights can be violated by [state officials] secure in the knowledge nothing will come of the wrongdoing, then it follows that the constitution . . . is but a collection of elegant words without substance; it is a shield made of little more than aspirations and hopes.”

Gary S. Gildin is a professor at Penn State Dickinson Law School.