To Sue or Not To Sue The Government

So You Want to Sue the Government?

Not so fast. Nearly every government official, entity, and action is shielded by some form (and typically multiple forms) of immunity, often accompanied by complex procedural protections that can confound even the most experienced civil litigators. Citizen-plaintiffs facing off against the government are forced to navigate a web of intersecting federal and state immunities, including the Eleventh Amendment’s bar on suing states in federal court; the Supreme Court’s qualified and absolute immunity doctrines; and countless state statutes providing miscellaneous action- or entity-specific immunities. See, e.g., Cal. Gov’t. Code § 820.2 (Discretionary Acts Immunity), § 830.6 (Design Immunity), § 831.4 (Trail Immunity), § 837.1 (Hazardous Recreational Immunity). The starting premise for these state-shield laws is often the same: the government is immune from all liability, unless the government waives that immunity. See, e.g., Cal. Gov’t. Code, § 815(a) (all California public entities are immune from liability “[e]xcept as otherwise provided by statute”).

The concept of sovereign immunity is nothing new – indeed, it is rooted in the longstanding (if antiquated) tradition of governmental infallibility: being ordained by a higher authority, the King’s actions are beyond reproach. Rather than perish along with such outdated concepts, however, governmental immunities remain a prominent fixture of the modern legal landscape, often finding support in the notion that the government will be sued too frequently – and may grind to a halt – if it can be sued every time it allegedly violates the law. See, e.g., 42 U.S.C. § 1997e (adopted to curtail the number of lawsuits filed by prisoners).

As a result, the onus is on citizen-plaintiffs to show that their case is the exception, not the norm, before courts will permit them to sue the government. Intersections of various constitutional provisions, statutes, and case law, however, have produced a dizzying quagmire of seemingly self-contradictory rules, making it difficult for litigants and their attorneys to meet this already heightened burden.

For example, in the context of constitutional civil rights litigation, the Eleventh Amendment to the U.S. Constitution strips people of the right to sue states and state-subdivisions (e.g. counties, school districts, etc.) in federal court. Standing alone, this would seem to extinguish many federal civil rights cases at the outset—and perhaps it does. However, the Supreme Court has acknowledged that the Eleventh Amendment still allows federal lawsuits against cities, and against individual state employees. See, e.g., Monell v. Dep’t. Soc. Servs., 436 U.S. 658 (1987). Thus, while you may not be able to sue your school district in federal court, you may be able to sue the school district’s individual board members who are responsible for violating your rights.

While such work-arounds do exist, the Eleventh Amendment further restricts the type of relief a federal court can grant in actions against government agents. In general, any person suing a state employee in that employee’s “official capacity” will only be entitled to seek a judicial declaration that the employee violated the plaintiff’s rights, and/or an injunction to prevent future violations. To obtain monetary compensation, the plaintiff must sue the state employee in his or her “individual capacity,” and overcome the Supreme Court’s qualified immunity doctrine. Under the qualified immunity doctrine, claims for monetary compensation arising from constitutional violations will be thrown out by the courts, unless the plaintiff can show that the state employee violated “clearly established” constitutional law. Unfortunately, this means that even if the government admits it violated your constitutional rights, you will not necessarily be entitled to compensation.

As a result of these complexities, seeking legal counsel from an experienced civil rights attorney is a crucial first step in redressing harms caused to you by local, state, or federal governments. After all, when you aim for the King, don’t miss.


Gregory Michael is an associate who handles constitutional civil rights litigation at Dhillon Law Group Inc.