Nick Sibilla, Senior Contributor
I cover criminal justice, entrepreneurship, and offbeat lawsuits.
In a landmark decision late last month, the Nevada Supreme Court unanimously ruled that victims of wrongful searches and seizures have the right to sue the responsible government officials. Just as critically, the court firmly rejected qualified immunity as a potential defense against those lawsuits. The court’s twin holdings will better ensure that government officials can actually be held accountable for their misconduct.
“Absent a damages remedy here, no mechanism exists to deter or prevent violations of important individual rights,” Justice Elissa Cadish wrote for the court. And “a right does not, as a practical matter, exist without any remedy for its enforcement.”
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. Mirroring language found in the Fourth Amendment, the Nevada Constitution safeguards “the right of the people to be secure in their persons, houses, papers and effects against unreasonable seizures and searches.”
Yet Nevada’s legislature, like more than 40 other states, never passed a civil rights act that expressly let individuals sue the government employees who infringed their constitutional rights. Only state lawmakers, the Nevada Department of Corrections argued, have the power to make government workers liable for civil rights violations.
Fortunately for Mack, the Nevada Supreme Court disagreed. “Constitutional rights must remain enforceable in the absence of some action by the legislature,” the court ruled, “or risk that constitutional rights become all but ‘a mere hope.’” When it comes to “self-executing” rights like the right to be free from unlawful searches and seizures, “the legislature lacks the authority to pass legislation that abridges or impairs those rights.” “Likewise,” Justice Cadish continued, “the availability of remedies that follow from violations of those rights does not depend on the legislature’s benevolence or foresight.”
In addition, the Nevada Supreme Court refused to import the legal doctrine of qualified immunity. Created by the U.S. Supreme Court four decades ago, qualified immunity shields all government workers from liability, unless they violated a “clearly established” right. Since that usually requires finding an almost identical case as precedent—a very high bar to clear—qualified immunity prevents victims from holding the perpetrators accountable.
To visit the prison, Mack caught a ride with an acquittance of hers, Tina Cates, who was also trying to see her boyfriend behind bars. Like Mack, Cates also said she was subjected to a humiliating strip search. And she too filed a civil rights lawsuit.
But unlike Mack, whose legal claims based on state constitutional rights can now move forward, Cates’ case involved federal claims and was ultimately blocked by qualified immunity. Even though the Ninth Circuit U.S. Court of Appeals ruled that strip searching Cates was “unreasonable under the Fourth Amendment,” the court still dismissed her case since “there was no case in this circuit where we had held that a prison visitor has a right to leave the prison rather than undergo a strip search.” Accordingly, Cates’ right to be free from strip searches was not yet “clearly established.”
Though the Nevada Supreme Court ruling is currently limited to searches and seizures, it’s already making an impact. Consider Stephen Lara. A veteran who served in the Marines for 16 years, Stephen had his entire life savings—over $87,000—confiscated by a Nevada state trooper. He was never charged with a crime.
Stephen didn’t back down. Just one day after the Institute for Justice filed a lawsuit, the government returned the cash it wrongfully seized. But the rest of his lawsuit was put on hold while the Nevada Supreme Court considered Mack’s case. Now with a resounding win for individual rights, Stephen’s case to hold the officers accountable can finally move forward.
“The wheels of justice for Stephen Lara can finally move forward after being on hold for more than a year,” said Institute for Justice Attorney Ben Field, who participated in oral argument for Mack v. Williams. “As we urged, the Nevada Supreme Court holds that ordinary people like Stephen can sue for damages when government officials go over the line and violate the most basic guarantees in the state constitution.”