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A Primer on Advocating Independent State Constitutional Remedies

State supreme courts shouldn’t reflexively embrace federal approaches to remedying violations of constitutional rights.


For several decades, the U.S. Supreme Court has steadily chipped away at the remedies available to people whose federal constitutional rights have been violated. State courts can do better. They have the power to — and should — provide greater liberty under state constitutions by declining to follow decisions of the U.S. Supreme Court that undermine recovery of damages for violation of federal constitutional rights.

The U.S. Constitution does not specify a remedy for deprivations of rights secured by the Fourteenth Amendment, which incorporated the Bill of Rights against the states. In 1871, Congress legislated a civil cause of action — codified at 42 U.S.C. § 1983 — enabling citizens to recover damages suffered by invasion of those rights by state and local government employees performing their official duties. Unfortunately, the U.S. Supreme Court has undercut the promise of Section 1983 in several ways: first, by adopting and expanding qualified immunity for individual officials; second, by rejecting vicarious liability of local governmental entities; and third, by holding state governmental entities absolutely immune from liability for damages. The Court has grounded these hurdles in the intent of the 1871 Congress that enacted Section 1983. 

But Section 1983 does not apply to infringement of state constitutional rights. Rather, litigants must look to state legislatures or state courts to recover damages caused by violation of the state constitution. While varying in scope, statutes in eleven states authorize a damages remedy. State courts in at least ten other states have implied a cause of action. While a handful of courts have refused to recognize such suits absent statutory authorization, courts in the remaining states have yet to address the issue.

Just as the intent of the framers of the Bill of Rights does not manifest the purpose of the separate drafters of state constitutions, the intent of the Congress that enacted Section 1983 does not dictate the contours of civil actions to remedy violation of state constitutions authorized by state legislatures or courts. When the New Mexico legislature approved a Civil Rights Commission to propose reforms in the wake of the killing of George Floyd and subsequently authorized a damage action on behalf of persons injured by deprivation of state constitutional rights, for example, it plainly did not intend to codify the design of the United States Congress that convened 150 years earlier.

Even were a state court to consider the intent of the 1871 Congress relevant to enforcement of state constitutional rights, the U.S. Supreme Court’s remedy-defeating decisions are not faithful to that intent. One means by which the Court has justified denying recovery of damages is by reasoning the 1871 Congress intended to incorporate then-existing common law doctrines. Yet Congress enacted Section 1983 — using unqualified language and an instruction to broadly and liberally construe the statute to afford relief — precisely because the common law had proven inadequate to protect constitutional rights. 

The Court further strayed from the intent of Section 1983 by departing from the same common law doctrines it deems to represent the will of Congress. The Court extended qualified immunity to all officials without asking whether the official was shielded by any immunity under the common law. The Court also reformulated the common law requirement that, in order to be immune, the official act both in subjective good faith and reasonably under all the circumstances. Under the reconstituted doctrine of qualified immunity, a state official is immune whenever the right violated was not clearly established in the specific factual situation confronting the official — even if they intended to harm a citizen or acted unreasonably. The Court has confessed this standard protects all but the plainly incompetent.

The Court similarly departed from the common law when it held local governmental entities are not vicariously liable for deprivations of constitutional rights caused by their agents. Instead, the Court ruled that a municipality will be responsible to pay damages only if its employee’s actions represented “policy or custom.” The Court then issued a series of decisions that erect almost insurmountable barriers to proof of policy or custom.

The Court’s untethering of qualified immunity and local governmental liability from their avowed common law roots justifies declining to embrace those precedents when a state court is remedying invasions of the state constitution. But there are additional reasons for state courts to reject federal limitations on remedies. Other court-imposed bars to recovery of damages under Section 1983 rest on provisions of the U.S. Constitution that are inapplicable to actions to redress invasions of state constitutional rights. The U.S. Supreme Court held state governmental entities are immune from liability for damages under Section 1983 by reasoning the 1871 Congress did not intend to abrogate the state’s Eleventh Amendment shelter from being sued in federal court without its consent. The Eleventh Amendment, however, has no bearing on the liability of states in actions filed in state court to remedy violations of a state constitution. Rather, state courts must determine whether sovereign immunity — founded in common law, a statute, or the state constitution — can or does bar suits against state entities. 

In adopting doctrines that limit liability under Section 1983, the Court has further reasoned that federal courts should be reluctant to invade the province of the states. Just as concerns with federalism play no role when a state court is asked to define a right secured by the state constitution, federalism (and Supreme Court opinions involving that doctrine) should not guide the court in shaping remedies.

Many states have, rightly, chosen not to adopt federal approaches when fashioning civil rights remedies. The Montana Supreme Court, for example, held that qualified immunity is not a defense in an action for damages for violation of the right to privacy guaranteed by the state constitution, finding no tradition of immunity for that state’s employees. To the contrary, the state constitution prohibits immunity unless provided by legislation approved by a two-thirds vote of each house and mandates a “speedy remedy afforded for every injury of person, property, or character.” 

Nevada’s supreme court rejected qualified immunity for correctional officials in a case alleging violations of the right to be free from unreasonable searches and seizure under the state constitution. The court also recognized that the allocation of power among the judiciary and legislature in state constitutions does not mirror the federal charter. Consequently, state courts that recognize an action for damages to remedy violation of the state constitution notwithstanding the absence of legislative authorization are not bound by the U.S. Supreme Court’s limitations on the causes of action it has implied against federal officials who trammel rights secured by the U.S. Constitution. "Absent a damages remedy,” the court noted, “no mechanism exists to deter or prevent violations of important individual [state constitutional] rights.” 

New York’s highest court held that governmental entities are vicariously liable for damages caused by their agents’ violation of rights secured by the state constitution. The court reasoned that since those entities are liable for the common law torts of its officers, they likewise should be vicariously liable for harms caused when their officials deprive a citizen of rights under the state constitution.

A Massachusetts appellate court recognized in imposing vicarious liability under the Massachusetts Civil Rights Act that “issues of federalism which led Congress and the Supreme Court to reject vicarious liability do not bear on the [state civil rights law].”

When the patchwork of Supreme Court decisions is fashioned into a single quilt, the innocent citizen who has suffered harm from the trammeling of their federal constitutional rights often is left remediless. Only by refusing to blindly follow the Court’s interpretations of Section 1983 and implied causes of action under the federal Constitution will state courts give voice to Chief Justice John Marshall’s admonition in Marbury v. Madison: “The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection.”

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

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