The Nevada Supreme Court’s opinion and analysis in Mack v. Williams (2022) have the potential to fundamentally shift civil rights litigation from the Federal to the State court, but the door will not remain open for too long and the path for all constitutional rights is still not completely paved.
The Mack opinion arose from four certified questions to the Nevada Supreme Court in a federal case litigated by Travis Barrack, Esq., and Nathan Lawrence, Esq., of Gallian Welker & Associates, L.C. In the underlying case, the Plaintiff argued that the Nevada Department of Corrections executed an unreasonable search and seizure and violated her right to due process. Correctional officers at High Desert State Prison executed a strip search and, after finding no contraband, refused Mack entry into the prison and the warden suspended her visitation privileges to the facility. Ultimately, the Nevada Supremes elected to reframe and answer only two of the questions.
The Nevada Supreme Court first affirmed that a private right of action for monetary damages exists under the Nevada Constitution’s safeguard against unreasonable searches and seizures. The Court also determined that the self-executing provision does not require “the Legislature’s benevolence or foresight,” thereby providing a pathway for receiving damages without a need for a statute. It is in this portion of the opinion that civil rights attorneys can find the framework for bringing causes of action under different constitutional provisions.
While the path is paved for unreasonable searches and seizures, can the framework be successfully applied to other Nevada Constitutional protections? One such provision for future litigation is due process. The Nevada Supreme Court deferred on this very topic. Does the framework apply to free speech, equal rights, and the freedom to assemble? The answer may not be as clear as one might think; the opinion states that prohibitory provisions are considered self-executing because of the limiting nature of the language. However, not all Nevada Constitutional provisions have prohibitory language.
The Nevada Supreme Court’s second answer foreclosed the State’s ability to raise qualified immunity as a defense because “the Legislature has not provided for a state-law equivalent of qualified immunity.” While the decision to foreclose qualified immunity was concise and swift, the decision is likely temporary. The Court’s decision is based on the language of limited waiver of sovereign immunity in NRS 41.031, in which the waiver is subject to express exceptions provided by statute.
Law enforcement agencies and the State are sure to seek a statutory provision providing for qualified immunity in the next legislative session. The defense, at least at the federal level, is too important to ignore. Accordingly, should a bill calling for qualified immunity as a statutory provision arise, it’s imperative that more than just law enforcement and State agencies are involved in crafting its language.
