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Baldwin v. City of Estherville

Supreme Court of Iowa

June 29, 2018

GREGORY BALDWIN, Appellee,
v.
CITY OF ESTHERVILLE, IOWA; MATT REINEKE, Individually and in his Official Capacity as an officer of the Estherville Police Department; and MATT HELLICKSON, Individually and in his Official Capacity as an officer of the Estherville Police Department, Appellant.

          Certified questions of law from the United States District Court for the Northern District of Iowa, Mark W. Bennett, United States District Court Judge.

         Plaintiff 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.

          Jack Bjornstad of Jack Bjornstad Law Office, Okoboji, for appellee.

          Thomas J. Miller, Attorney General, Jeffrey S. Thompson, Solicitor General, Julia S. Kim, Assistant Attorney General, for amicus curiae State of Iowa.

          Thomas M. Boes and Catherine M. Lucas of Bradshaw, Fowler, Proctor & Fairgrave, P.C., Des Moines, for amicus curiae Iowa Communities Assurance Pool.

          Katie 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.

          MANSFIELD, JUSTICE.

         After 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.

         Thereafter, 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 ordinance.

         We have 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?"

         For the 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.

         I. Background Facts and Proceedings.

         When we 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 district court:

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 15, 2014.
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).

         The 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.

         Estherville, Iowa, Code of Ordinances, tit. II, div. 1, ch. 7, § E-321.1

Iowa Code section 321.234A covers operation of ATVs and provides,
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.

         Iowa 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 designated roadway.
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.

         The 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.

         As 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 License.
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 road extensions.
2. Parks and Other Public Lands. ATV/UTVs shall not be operated off-road in city parks, playgrounds, or upon any publicly-owned property.
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.

         Estherville, 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."

         On 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 relief.

         On 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.

         On July 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.[1] 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).

         On 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 Constitution?"

         II. Standard of Review and Criteria for Answering a Certified Question.

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.

         Iowa 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 precedent.

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 643).

         We 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.

         III. Godfrey v. State.

         Last 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

         We 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 address.

         IV. Governmental Immunity in Iowa.

         Tort 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.

         Each 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).

         In 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.

         V. Review of Other Jurisdictions.

         As we 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.

         We will 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).

         A. States That Recognize Harlow v. Fitzgerald Immunity.

         Under 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 & n.30.

         Two states that allow direct claims under their own state constitutions-Connecticut and Louisiana-also provide Harlow-type immunity.

         In 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 liability. Id.

         Later, 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.

         Louisiana 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 constitution.

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.

         Two 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.

         Thus, 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).

         New 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. 2000)).[2]

         B. States That Limit Liability to That Authorized by the State Tort Claims Act.

         Other 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.

         Illinois, 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 Immunity Act).

         So too 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.

         In 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.

         Claims 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.

         Based 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 immunities.

         Likewise 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.

         In 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 act.

         New 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 1133.

         The 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.

         The 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.

         Notably, 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., dissenting).

         However, 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 damages. Id.

         No New 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 follows:

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." (Citations omitted.)).

         C. States That Impose a Higher Burden on Bringing a ...


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