Certified questions of law from the United States District
Court for the Northern District of Iowa, Mark W. Bennett,
United States District Court Judge.
seeks damages for alleged violations of his rights under
article I, section 1 and article I, section 8 of the Iowa
Constitution following his arrest under city ATV ordinances.
Douglas L. Phillips and René Charles LaPierre of Klass
Law Firm, LLP, Sioux City, for appellants.
Bjornstad of Jack Bjornstad Law Office, Okoboji, for
J. Miller, Attorney General, Jeffrey S. Thompson, Solicitor
General, Julia S. Kim, Assistant Attorney General, for amicus
curiae State of Iowa.
M. Boes and Catherine M. Lucas of Bradshaw, Fowler, Proctor
& Fairgrave, P.C., Des Moines, for amicus curiae Iowa
Communities Assurance Pool.
Ervin Carlson of Fiedler & Timmer, P.L.L.C., Johnson,
Jessica Zupp of Zupp and Zupp Law Firm, P.C., Denison, and
Joel E. Fenton, Law Offices of Joel E. Fenton, PLC, Des
Moines, for amicus curiae Iowa Association for Justice.
receiving citizen complaints about the operation of an ATV
within city limits, police officers reviewed a video of the
event, examined the city's ordinances, and concluded an
ordinance had been violated. They sought and obtained an
arrest warrant from a magistrate and arrested the ATV
operator. An Iowa district court later dismissed the criminal
case against the operator, however, finding that no ordinance
actually prohibited his conduct.
the ATV operator brought damages claims against the city and
the police officers for common-law false arrest, deprivation
of civil rights under 42 U.S.C. § 1983 (2012) based on a
violation of the Fourth Amendment, and directly under article
I, sections 1 and 8 of the Iowa Constitution. The case was
removed to federal court, where the federal district court
granted summary judgment to the defendants on the common law
and federal constitutional claims. The federal district court
reasoned that the police officers were acting pursuant to a
facially valid warrant, and it was not clearly established
that the ATV operator's conduct did not violate an
now been asked by the federal district court to answer the
following certified question of Iowa law relating to the Iowa
constitutional claims: "Can a defendant raise a defense
of qualified immunity to an individual's claim for
damages for violation of article I, § 1 and § 8 of
the Iowa Constitution?"
reasons discussed herein, we answer this question as follows:
A defendant who pleads and proves as an affirmative defense
that he or she exercised all due care to conform with the
requirements of the law is entitled to qualified immunity on
an individual's claim for damages for violation of
article I, sections 1 and 8 of the Iowa Constitution.
Background Facts and Proceedings.
answer a certified question, we rely upon the facts provided
with the certified question. See Bd. of Water Works Trs.
of Des Moines v. Sac Cty. Bd. of Supervisors, 890 N.W.2d
50, 53 (Iowa 2017); Life Inv'rs Ins. Co. of Am. v.
Estate of Corrado, 838 N.W.2d 640, 643 (Iowa 2013).
Accordingly, we restate the facts as set forth by the federal
The incidents giving rise to Baldwin's claims began on
Sunday, November 10, 2013. At approximately 2:30 p.m. that
day, Officers Reineke and Hellickson were on patrol in the
City when they received a dispatch to report to the Law
Enforcement Center concerning a "4 wheeler
complaint." They drove to the Law Enforcement Center.
Upon their arrival, they spoke with Tenner and Patti Lilland,
who live in the Estherville area. Mr. Lilland showed the
officers a video of a 4-wheeler riding in the ditch on the
south side of North 4th Street. The officers were able to
identify the driver of the ATV as Greg Baldwin. They watched
the ATV proceed along North 4th Street and turn into a ditch,
using the north Joe Hoye Park entrance, after which it
continued in the ditch until it reached West 14th Avenue
North, where it returned to the roadway. Baldwin acknowledges
that he was operating his ATV/UTV on that date in the south
ditch of North 4th Street and on North 4th Street, and the
parties agree that the ditch and street are within the
City's limits. Baldwin does not recall using the north
Joe Hoye Park entrance to enter the ditch.
Officers Reineke and Hellickson reviewed Iowa Code Ch. 321I,
because the City did not reproduce Chapter 321 in printed
form, only incorporated it by reference, when that chapter
was adopted into the City Code of Ordinances. Officer Reineke
then reviewed The Handbook of Iowa All-Terrain Vehicle
and Off-Highway Motorcycle Regulations
(Handbook), which the defendants contend is a
handbook frequently relied upon by police officers when
determining whether off road vehicles are operating in
compliance with applicable laws. Baldwin denies, for lack of
knowledge, the assertion that police officers rely on the
Handbook, and denies that it addresses the
applicable laws of the City. Based upon their reading of the
State Code and the information contained in the video
provided by the Lillands, Officers Reineke and Hellickson
concluded that there had been a violation of what they
believed was City Ordinance E-321I.10 (operating on
highways). Before issuing a citation, however, Officer
Reineke conferred with his supervisor, Captain (now Chief)
Brent Shatto, and (then) Chief Eric Milburn. Captain Shatto
and Chief Milburn agreed that they believed that the activity
shown on the video amounted to a violation of the local
ordinance. The parties now agree, however, that City
Ordinance E-321I.10 was not a valid ordinance in effect at
the time that Baldwin operated his ATV/UTV on November 10,
2013, because it did not exist at that time, and it still is
not part of the City's Code of Ordinances.
Officer Reineke prepared a citation (No. 131818 8) to Greg
Baldwin, alleging that "on or about 11/10/2013 at 2:30
PM defendant did unlawfully Operate Motor Vehicle/Boat RED
UTV . . . upon a public highway at NORTH 4TH STREET located
in the county and state aforesaid and did then and there
commit the following offense: Violation ATV OR OFF ROAD UTIL
VEH/OPERATION ON HIGHWAYS AND [sic] . . . Local Ord E-321I.10
ICIS E-S/321I.10." Defendants' Appendix at 17. The
citation issued on November 11, 2013. Officer Reineke went to
the Baldwin residence to serve the citation on November 11,
2013, but no one was home. Because Reineke was scheduled to
be off work in the days that followed, he e-filed the
citation with the notation: "Request Warrant." On
November 12, 2013, David D. Forsyth, Magistrate, Third
Judicial District of Iowa, entered an Order directing that a
warrant issue. Defendants' Appendix at 18. On November
13, 2013, Officer Hellickson served the warrant on Baldwin,
while he was in the parking lot at his grandchild's
school, in front of his wife and a large number of people,
arrested him, and took him to jail, where he was booked.
Baldwin's wife came to the jail and posted bond, and
Baldwin was released. Subsequently, Baldwin entered a written
plea of not guilty to the charge, and trial was set for May
The defendants allege that, in the days that followed, City
Attorney Christopher Fuhrman discovered that the City had
not included Iowa Code Ch. 321I when it incorporated
Iowa Code Ch. 321 into the Code of Ordinances. They also
allege that neither Shatto, Reineke, nor Hellickson knew
this; rather, all were operating under the mistaken belief
that the adoption and incorporation of Iowa Code Ch. 321 by
the City Council included Iowa Code Chs. 321A through 321M.
Baldwin disputes these contentions as inconsistent with the
meeting that he had with City police officers in 2006 about
operation of ATVs in the City; the express incorporation of
"chapter 321," not any other chapter of the Iowa
Code, into the Code of Ordinances; and the existence of
Chapter 9 of the Code of Ordinances. Mr. Fuhrman was granted
leave to amend the charge to allege a violation of a
different ordinance, City Ordinance 219-2(2). Defendants'
Appendix at 28-29. After Baldwin's counsel filed a Motion
For Adjudication Of Law Points And To Dismiss, and the City
filed its response, the court found "that the cited act
is not in violation of the city code as written and the case
is DISMISSED, costs assessed to the City of
Estherville." Defendants' Appendix at 30-37.
Baldwin alleges that, because of his arrest, he suffered
mental and emotional harm and anguish, anxiety, fear,
degradation, disgrace, uncertainty, apprehensiveness,
restlessness, dismay, tension, and unease. He contends that
his wife confirmed the effect on him in her deposition. The
defendants deny that Baldwin has produced any evidence to
support these claims of harm.
Baldwin v. Estherville, 218 F.Supp.3d 987, 992-93
(N.D. Iowa 2016) (omissions in original) (footnote omitted).
Estherville City Code incorporated Iowa Code chapter 321 via
ordinance E-321.1, which stated,
All sections of the state statutory law, rules of the road,
Chapter 321 of the Code of Iowa the offense of which
constitutes a simple misdemeanor, are hereby adopted and
incorporated by this reference the same as if set forth in
full herein into the Code of Ordinances of the City of
Estherville, Iowa, and the violation of such applicable state
statutory laws of the road shall be a violation of this
chapter if the offense occurs within the territorial city
limits of the City of Estherville.
Iowa, Code of Ordinances, tit. II, div. 1, ch. 7, §
Iowa Code section 321.234A covers operation of ATVs and
All-terrain vehicles shall not be operated on a highway
unless one or more of the following conditions apply:
f. The all-terrain vehicle is operated on a county roadway in
accordance with section 321I.10, subsection 2, or a city
street in accordance with section 321I.10, subsection 3.
Code § 321.234A(1)(f) (2013).
Iowa Code section 321I.10 also covers ATVs and provides,
1. A person shall not operate an all-terrain vehicle or
off-road utility vehicle upon roadways or highways except as
provided in section 321.234A and this section.
2. A registered all-terrain vehicle or off-road utility
vehicle may be operated on the roadways of that portion of
county highways designated by the county board of supervisors
for such use during a specified period. The county board of
supervisors shall evaluate the traffic conditions on all
county highways and designate roadways on which all-terrain
vehicles or off-road utility vehicles may be operated for the
specified period without unduly interfering with or
constituting an undue hazard to conventional motor vehicle
traffic. In designating such roadways, the board may
authorize all-terrain vehicles and off-road utility vehicles
to stop at service stations or convenience stores along a
3. Cities may designate streets under the jurisdiction of
cities within their respective corporate limits which may be
used for the operation of registered all-terrain vehicles or
registered off-road utility vehicles. In designating such
streets, the city may authorize all-terrain vehicles and
off-road utility vehicles to stop at service stations or
convenience stores along a designated street.
Id. § 321I.10.
parties now agree that Iowa Code section 321.234A had been
incorporated into the Estherville ordinances by ordinance
E-321.1, but section 321I.10 had not been so incorporated.
noted above, City Attorney Fuhrman later amended the charge
against Baldwin to allege a violation of a different,
free-standing city ordinance, 219.2(2). This ordinance reads,
ATV/UTVs may be operated upon the streets of the City of
Estherville, Iowa, except as prohibited in Subsection 1 of
this section, by persons possessing a valid Iowa Driver's
1. Prohibited Streets. ATV/UTVs shall not be
operated upon any city street which is a primary road
extension through the city, to wit: Iowa Highway No. 4 and
Iowa Highway No. 9. However, ATV/UTVs may cross such primary
2. Parks and Other Public Lands. ATV/UTVs shall not
be operated off-road in city parks, playgrounds, or upon any
3. Private Property. ATV/UTVs may only be operated
upon private property with express consent of the owner
thereof or while engaged in snow removal, landscaping, or
other maintenance activities.
4. Sidewalk or Parking. No ATV/UTV shall be operated
upon sidewalks unless engaged in snow removal or maintenance
activities (except along the south sidewalk from South First
Street to West South First Street) nor shall they be operated
upon that portion of the street located between the curb line
and sidewalk or property line commonly referred to as the
"parking" except for purposes of snow removal,
maintenance, or landscaping activities.
Iowa, Code of Ordinances, tit. II, div. 1, ch. 9, 219.2(2).
Regardless, as noted above, the district court dismissed the
criminal complaint on the ground that Baldwin's conduct
was "not in violation of the city code as written."
November 4, 2015, Baldwin filed a civil suit in the Iowa
District Court for Emmet County against the City and Officers
Matt and Hellickson, individually and in their official
capacities as officers of the Estherville Police Department.
In addition to a common-law false arrest claim, Baldwin also
alleged violations of his rights under article I, sections 1
and 8 of the Iowa Constitution and his rights under the
Fourth Amendment to the United States Constitution pursuant
to 42 U.S.C. § 1983. Baldwin sought money damages as
November 20, the defendants removed the case to the United
States District Court for the Northern District of Iowa on
the basis of federal question jurisdiction pursuant to 28
U.S.C. § 1331. The defendants subsequently filed an
answer to Baldwin's claims, denying liability and
asserting immunity from suit as an affirmative defense. Trial
was set for April 17, 2017.
19, 2016, the defendants moved for partial summary judgment
on the federal constitutional claim and the common law false
arrest claim, and Baldwin responded with his own motion for
partial summary judgment on August 11. On November 18, the
federal district court granted the defendants' motion as
to Baldwin's § 1983 claim on two bases: that the
officers did not lack probable cause for Baldwin's arrest
and that they were entitled to qualified
immunity. The court also granted summary judgment to
the defendants on the common-law false arrest claim. The
court stayed any ruling on the Iowa constitutional claims
until this court issued its opinion in Godfrey v.
State, 898 N.W.2d 844 (Iowa 2017).
October 4, 2017, after we had issued our Godfrey
decision, the district court certified this question of law
to us: "Can a defendant raise a defense of qualified
immunity to an individual's claim for damages for
violation of article I, § 1 and § 8 of the Iowa
Standard of Review and Criteria for Answering a Certified
Iowa Code section 684A.1 provides,
The supreme court may answer questions of law certified to it
by the supreme court of the United States, a court of appeals
of the United States, a United States district court or the
highest appellate court or the intermediate appellate court
of another state, when requested by the certifying court, if
there are involved in a proceeding before it questions of law
of this state which may be determinative of the cause then
pending in the certifying court and as to which it appears to
the certifying court there is no controlling precedent in the
decisions of the appellate courts of this state.
Code § 684A.1 (2017).
Accordingly, we have said,
It is within our discretion to answer certified questions
from a United States district court. We may answer a question
certified to us when (1) a proper court certified the
question, (2) the question involves a matter of Iowa law, (3)
the question "may be determinative of the cause . . .
pending in the certifying court," and (4) it appears to
the certifying court that there is no controlling Iowa
Roth v. Evangelical Lutheran Good Samaritan
Soc'y, 886 N.W.2d 601, 605 (Iowa 2016) (omission in
original) (quoting Estate of Corrado, 838 N.W.2d at
conclude that these four criteria have been met here and we
should answer the certified question. To do so, we will first
briefly review our Godfrey decision and the status
of governmental immunity in Iowa. We will then examine how
other jurisdictions that allow constitutional tort damages
claims have treated the question of qualified immunity.
Finally, we will consider relevant Iowa precedent and answer
the certified question.
Godfrey v. State.
year, in Godfrey, we held that the State of Iowa and
state officials acting in their official capacities could be
sued directly for violating article I, section 6 (the Iowa
equal protection clause) and article I, section 9 (the Iowa
due process clause), where state law does not provide an
adequate compensatory damage remedy. See 898 N.W.2d
at 846-47 (majority opinion); id. at 880-81 (Cady,
C.J., concurring in part and dissenting in part). We
concluded that with respect to discrimination based on sexual
orientation, the Iowa Civil Rights Act provided an adequate
remedy and thus no claim was available under article I,
section 6. Id. at 881. We did not reach the same
conclusion with respect to the due process violations alleged
in the petition. Id. at 880-81
expressly deferred consideration of whether qualified
immunity applied to these constitutional tort claims.
Id. at 879. That is the issue we are now asked to
Governmental Immunity in Iowa.
claims against the government in Iowa are governed by chapter
669, for state tort claims, and chapter 670, for municipal
tort claims. These chapters apply both to claims against the
governmental entity itself and to claims against governmental
employees acting in their official capacity.
chapter exempts certain claims from liability. These
exemptions include the discretionary function exception. Iowa
Code § 669.14(1); id. §
670.4(1)(c). The discretionary function exception in
the state tort claims act exception applies to
[a]ny claim based upon an act or omission of an employee of
the state, exercising due care, in the execution of a statute
or regulation, whether or not such statute or regulation be
valid, or based upon the exercise or performance or the
failure to exercise or perform a discretionary function or
duty on the part of a state agency or an employee of the
state, whether or not the discretion be abused.
Id. § 669.14(1). The exception in the municipal
tort claims act is worded similarly and applies to
[a]ny claim based upon an act or omission of an officer or
employee of the municipality, exercising due care, in the
execution of a statute, ordinance, or regulation whether the
statute, ordinance or regulation is valid, or based upon the
exercise or performance or the failure to exercise or perform
a discretionary function or duty on the part of the
municipality or an officer or employee of the municipality,
whether or not the discretion is abused.
Id. § 670.4(1)(c).
addition to this exemption, there are similar exemptions in
both acts for tax claims, claims covered by workers'
compensation, claims for negligent design or specification or
failure to upgrade roads or public improvements, and punitive
damages. See id. §§ 669.4(2), .14(2), (5),
(8), (9); id. § 670.4(1)(a),
(b), (e), (g), (h). Still
other exemptions can be found in both chapters.
Review of Other Jurisdictions.
noted in Godfrey, "The states that have
considered the issue are nearly equally divided in whether to
recognize implied constitutional actions for damages or
whether to decline to recognize such actions." 898
N.W.2d at 856-57 (footnotes omitted). We cited fourteen
jurisdictions as recognizing direct damage actions under
their state constitutions: California, Connecticut, Illinois,
Louisiana, Maryland, Massachusetts, Michigan, Mississippi,
Montana, New Jersey, New York, North Carolina, Texas, and
Wisconsin. See id. at 856 n.2.
now review these jurisdictions to determine what immunities,
if any, they allow for constitutional tort claims. Our
conclusion is that most of these jurisdictions either
recognize a federal-type immunity, such as the district court
applied to the federal constitutional claims here, or subject
constitutional claims to the defenses otherwise available
under the state's tort claims act (or similar statute).
States That Recognize Harlow v. Fitzgerald Immunity.
federal law, officials are entitled to qualified immunity
from constitutional claims. That is, they cannot be sued when
"their conduct does not violate clearly established . .
. constitutional rights of which a reasonable person would
have known." Harlow v. Fitzgerald, 457 U.S.
800, 818, 102 S.Ct. 2727, 2738 (1982). This immunity applies
both to claims based on 42 U.S.C. § 1983 and to
Bivens actions derived directly from the United
States Constitution. See, e.g., Wood v.
Moss, ____ U.S.___, ___, 134 S.Ct. 2056, 2066-67 (2014);
Harlow, 457 U.S. at 818, 102 S.Ct. at 2738 &
states that allow direct claims under their own state
constitutions-Connecticut and Louisiana-also provide
Binette v. Sabo, the Connecticut Supreme Court
recognized a damages cause of action for a violation of the
state constitution. 710 A.2d 688, 700-01 (Conn. 1998). The
individual defendants in that case had allegedly entered the
plaintiffs' home without permission or a warrant.
Id. at 689. However, the court made an important
distinction between the conduct of the government officials
in that case-which it characterized as
"egregious"-and conduct that was undertaken
"reasonably and in good faith." See id. at
701 n.23. In the latter circumstance, the court anticipated
that the individual defendants would be shielded from
in Fleming v. City of Bridgeport, the Connecticut
Supreme Court found that a Harlow-style qualified
immunity was available to municipal officers for damages
actions following illegal searches when "it was
objectively reasonable for them to believe that their actions
would not violate a clearly established right of the
plaintiff's under the circumstances." 935 A.2d 126,
144 (Conn. 2007). The plaintiff's suit was then found to
be barred by this qualified immunity. Id. at 146
("[W]e cannot say . . . that their approach under the
circumstances of this case was so unreasonable as to justify
abrogation of their qualified immunity.").
Harlow was not cited, but the court used a standard
similar to that in Harlow. See id. at 144;
see also Harlow, 457 U.S. at 818, 102 S.Ct. at 2738.
also utilizes the federal qualified immunity standard. In
Moresi v. Department of Wildlife & Fisheries,
the plaintiffs sought recovery under the Louisiana
constitutional right to be free from unreasonable searches,
seizures, and invasions of privacy. 567 So.2d 1081, 1091 (La.
1990). The Louisiana Supreme Court "conclude[d] that
damages may be obtained by an individual for injuries or loss
caused by a violation of Article I, § 5 of the 1974
Louisiana Constitution." Id. at 1093. However,
the court also determined that the plaintiffs could not
recover against the state officers because
[t]he same factors that compelled the United States Supreme
Court to recognize a qualified good faith immunity for state
officers under § 1983 require us to recognize a similar
immunity for them under any action arising from the state
Id. Qualified immunity would be available "if
the defendant show[ed] that the state constitutional right
alleged to have been violated was not clearly
established." Id. at 1094.
other jurisdictions we cited in Godfrey as allowing
direct constitutional damage claims actually authorize such
claims through enabling statutes-Massachusetts and New
Jersey. Both states have determined that Harlow
immunity applies to such claims, in addition to defenses
expressly written into the statutes themselves.
in Massachusetts, state constitutional tort claims may be
pursued via the state civil rights act. See Martino v.
Hogan, 643 N.E.2d 53, 59-60 (Mass. App. Ct. 1994). This
act appears to be the exclusive avenue for pursuing such
claims. See id. at 60. And such constitutional
claims are subject to two separate limits. First, the
Massachusetts Supreme Judicial Court has concluded that the
legislature, "in enacting the [state civil rights act],
intended to adopt the standard of immunity for public
officials developed under [federal law]." Rodriques
v. Furtado, 575 N.E.2d 1124, 1127 (Mass. 1991).
Furthermore, under the express terms of the civil rights act,
the plaintiff must prove that a constitutional right has been
interfered with "by threats, intimidation, or
coercion." Glovsky v. Roche Bros. Supermarkets,
Inc., 17 N.E.3d 1026, 1035 (Mass. 2014) (quoting Mass.
Gen. Laws ch. 12, § 11H).
Jersey has also authorized the bringing of state
constitutional claims by statute through the New Jersey Civil
Rights Act. See Gormley v. Wood-El, 93 A.3d 344, 358
(N.J. 2014). Yet as in Massachusetts, a qualified immunity
defense is available that "tracks the federal
standard" in Harlow. Brown v. State,
165 A.3d 735, 743 (N.J. 2017). This shields from liability
all public officials except those who are "plainly
incompetent or those who knowingly violate the law."
Morillo v. Torres, 117 A.3d 1206, 1215 (N.J. 2015)
(quoting Connor v. Powell, 744 A.2d 1158, 1164 (N.J.
States That Limit Liability to That Authorized by the State
Tort Claims Act.
states rely on their tort claims acts to demarcate the outer
scope of constitutional damages liability. Officials and the
state, in other words, receive the immunities contained
within the tort claims act and are liable only when the act
would render them liable.
one jurisdiction we cited in Godfrey, follows this
approach. In Newell v. City of Elgin, the plaintiff
sued over a violation of his right against unreasonable
searches and seizures set forth in the Illinois Constitution.
340 N.E.2d 344, 346-47 (Ill.App.Ct. 1976). The court
determined that the state tort immunity statute governed.
Id. at 347-48. Under the statute, "a public
employee is not liable for his act in the execution or
enforcement of any law unless his act 'constitutes
willful and wanton negligence.'" Id. at 348
(quoting 85 Ill. Rev. Stat. § 2-202 (1973)). Although
this elevated standard applied, the court found that the
defendant police officers had been guilty of willful and
wanton negligence and therefore were not shielded by the
statutory immunity. Id.; see also Commerce Bank,
N.A. v. Widger, No. 3-10-0647, 2011 WL 10468212, at *2
(Ill.App.Ct. Nov. 7, 2011) (deciding that a claim under the
Illinois Constitution's search and seizure clause, even
if available, was subject to the terms of the State Lawsuit
Maryland. In Lee v. Cline, the Maryland Court of
Appeals discussed the interplay between constitutional torts
and the immunity provided by the state tort claims act. 863
A.2d 297, 303-10 (Md. 2004). In that case, the plaintiff
brought suit alleging a violation of his rights under the
Maryland Declaration of Rights after he was unlawfully
detained in his car allegedly because of his race and the
kind of car he was driving. Id. at 301. The court
surveyed its prior cases as supporting the position that
"constitutional torts are covered by the Maryland Tort
Claims Act, thereby granting state personnel qualified
immunity for such torts." Id. at 304-05.
Maryland, the state tort claims act also limits the
state's liability for a constitutional tort.
See Cooper v. Rodriguez, 118 A.3d 829, 844-45 (Md.
2015). Under that act, the state is immune from liability for
constitutional claims if the official's actions stem from
malice or gross negligence. Id. at 854; see also
Brooks v. Jenkins, 104 A.3d 899, 908 (Md. Ct. Spec. App.
2014) ("If the employee is found . . . to have acted
with malice or gross negligence, even though in the
course of his employment, the State does not assume liability
for his conduct."). Furthermore, the state's
liability cannot exceed $200, 000 per claimant per incident.
See Cooper, 118 A.3d at 845.
against local governments are also limited. In Clea v.
Mayor of Baltimore, the Maryland Court of Appeals
originally said that "a public official who violates a
plaintiff's rights under the Maryland Constitution is
entitled to no immunity." 541 A.2d 1303, 1312 (Md.
1988). But in a later case also involving the Baltimore
police department, which arose after Maryland passed its
local government tort claims act, the same court indicated
that claims against local officials and local governmental
entities are subject to the terms of that act, including a
cap on damages per individual claim. Houghton v.
Forrest, 989 A.2d 223, 229-32 & n.5 (Md. 2010);
see also D'Aoust v. Diamond, 36 A.3d 941, 962
(Md. 2012) (stating that Clea has been
"super[s]eded by statute"). In short, even as to
claims based on the Maryland Declaration of Rights,
"Maryland public officials may . . . claim immunity for
their official acts on statutory grounds."
Houghton, 989 A.2d at 229.
on Clea, Maryland is sometimes cited as a state that
refuses to extend common law immunities to constitutional
tort claims. See, e.g., Gary S. Gildin,
Redressing Deprivations of Rights Secured by State
Constitutions Outside the Shadow of the Supreme Court's
Constitutional Remedies Jurisprudence, 115 Penn St. L.
Rev. 877, 903-04 (2011). But this is only part of the story
because Maryland's courts have given effect to statutory
Mississippi. In City of Jackson v. Sutton, the
Mississippi Supreme Court found that the plaintiff's
constitutional damage claims were barred by the immunity
provisions of the Mississippi tort claims act, which
contained the exclusive avenue for relief. 797 So.2d 977,
980-81 (Miss. 2001). Only declaratory actions and not damage
claims could be brought outside the act. Id. at 980.
addition, as already noted, it appears that constitutional
damage actions in Massachusetts and New Jersey are subject to
the limits in the relevant statute-although in those two
states it is the civil rights act rather than the tort claims
York also subjects constitutional tort claims to the
statutory framework applicable to other tort claims against
the state. In Brown v. State, the New York Court of
Appeals held "that a cause of action to recover damages
may be asserted against the State for violation of the Equal
Protection and Search and Seizure Clauses of the State
Constitution." 674 N.E.2d 1129, 1138-39 (N.Y. 1996). The
claim arose from a five-day "street sweep"
involving police stops of all nonwhite males in the city
after an elderly white woman reported that a black male
attacked her. Id. at 1131- 32. The claimants asked
the court to recognize constitutional tort claims for money
damages under the New York Constitution. Id. at
court acknowledged that "if we are to recognize a damage
remedy it must be implied from the Constitution itself."
Id. at 1137. The court held that "[a] civil
damage remedy cannot be implied for a violation of the State
constitutional provision unless the provision is
self-executing." Id. The court concluded that
the search and seizure and equal protection clauses of the
state constitution were self-executing but acknowledged that
a claim for damages also required a determination of
"whether the remedy of damages for the invasion of . . .
rights [established by the self-executing provisions] will be
recognized." Id. at 1137-38.
court noted that injunctive or declaratory relief would not
help the claimants, nor would exclusion, because the
claimants were not charged with a crime. Id. at
1141. Therefore, damages were a necessary deterrent for the
State's misconduct. Id. The court concluded,
"[b]y recognizing a narrow remedy for violations of [the
state equal protection and search and seizure clauses], we
provide appropriate protection against official misconduct at
the State level." Id.
New York has waived its sovereign immunity for damages
actions against the State. Id.; id. at 1146
(Bellacosa, J., dissenting) ("The state hereby waives
its immunity from liability and action and hereby assumes
liability and consents to have the same determined in
accordance with the same rules of law as applied to actions
in the supreme court against individuals or
corporations." (Emphasis omitted.) (quoting N.Y. Ct. Cl.
Act. § 8 (McKinney))). The majority in Brown
concluded that this waiver removed the defense of sovereign
immunity for tort actions, including constitutional torts.
Id. at 1134-36 (majority opinion). The dissent
disagreed that the waiver should be applied in constitutional
tort cases. See id. at 1147-48 (Bellacosa, J.,
the majority pointed out that many of the legal defenses
identified by the dissent can be raised by the state
"to avoid paying damages for some tortious conduct
because, as a matter of policy, the courts have foreclosed
liability." Id. at 1141 (majority opinion).
These defenses include legislative or judicial immunity,
immunity for "quasi-judicial or discretionary
actions," the "special duty rule" (under which
"a plaintiff cannot recover against a municipality for
failure to supply police protection or similar services
absent a special relationship between the plaintiff and the
police or municipality"), and immunity from punitive
York decisions after Brown have considered whether a
defendant can assert the defense of qualified immunity.
Instead, the courts generally turn down constitutional tort
claims because other remedies are available. In a 2001 case,
the New York Court of Appeals rejected a constitutional tort
claim arising out of an unlawful search, reasoning as
Moreover, plaintiff fails to demonstrate how money damages
are appropriate to ensure full realization of her asserted
constitutional rights. Even after years of discovery,
plaintiff has not distinguished her case from that of any
criminal defendant who has been granted suppression, or
reversal of a conviction, based on technical error at the
trial level. Plaintiff has shown no grounds that would
entitle her to a damage remedy in addition to the substantial
benefit she already has received from dismissal of the
indictment and release from incarceration.
Martinez v. City of Schenectady, 761 N.E.2d 560, 564
(N.Y. 2001); see, e.g., Shelton v. N.Y. State
Liquor Auth., 878 N.Y.S.2d 212, 218 (App. Div. 2009)
("Although, in limited situations, a private cause of
action to recover monetary damages for state constitutional
violations can arise, no such claim will lie where the
claimant has an adequate remedy in an alternate forum."
States That Impose a Higher Burden on Bringing a