Who is protected by sovereign immunity

Knowing how sovereign immunity came to be, as well as how it relates to qualified immunity can help keep the public informed on their legal rights and what a government actor can or cannot do.

The legal doctrine of sovereign immunity provides a ruling government body with the option to choose immunity from civil lawsuits or criminal prosecution. This holdover concept from British common law kept the King immune from any charges of wrongdoing.

Sovereign immunity is used as a means of protecting the government from having to alter its policies any time a person takes issue with them; however, it is important to note that state governments are not immune from lawsuits brought against them by other states or by the federal government. When referring to sovereign immunity at a federal level, an individual cannot sue the federal government as an entity unless it says otherwise.

However, under the Federal Tort Claims Act FTCA , individuals can sue federal employees for violating the duties involved with their role, but only if negligence was a factor.

If so, the individual must then determine whether they have permission to sue under the FTCA. Please try after sometime. What is state immunity? The absolute doctrine Initially the first and only approach, the absolute doctrine still applies in some jurisdictions, notably China and Hong Kong. The restrictive doctrine The increasing involvement of states in world trade activities led to the development of a more restrictive approach to state immunity, where a distinction is drawn between acts of a sovereign nature and acts of a commercial nature.

Which law will apply? Why does state immunity matter? Who can benefit from state immunity? What are the exceptions to state immunity? Exceptions to immunity from adjudication There are four main exceptions to immunity from adjudication under the SIA.

Submission to the jurisdiction of the English courts A state will not be immune from adjudication where it has either expressly agreed that the English courts have jurisdiction i. Commercial transaction The second exception gives effect to the restrictive doctrine of state immunity. Proceedings related to a contractual obligation to be performed wholly or partly in the UK The third exception applies to obligations of the state performed in the UK.

Agreement to submit to arbitration This exception covers agreements in writing to submit a dispute to arbitration, including arbitration outside the UK, i.

Commercial purpose The enforcement of judgments or arbitral awards may be enforced against property that is in use or intended for use for commercial purposes. Waiver of immunity clauses The easiest and most efficient way of dealing with state immunity is to seek an express waiver of that immunity. The following key considerations must be kept in mind when drafting waiver of immunity clauses: The waiver clause should be included in all transaction documents that involve state parties.

The clause should be agreed by all states or state entities likely to be part of the transaction or which hold assets relevant to the transaction. The clause has to be an express and clear waiver of both immunity from suit and immunity from enforcement: merely specifying the applicable law or waiving the state's immunity without express agreement to submit to the relevant courts is unlikely to be sufficient.

The clause should extend to all of the state's assets or any separate entity's assets. Ideally, the waiver should be sufficiently general to cover all assets, even those which might be transferred from the state involved to other state entities. If not possible, the clause should at least specify the type of assets to which the waiver will apply.

The clause has to have been a greed by a person who has the required authority of the state: check that they have authority to waive immunity. The waiver provisions should include express confirmation that the entity is not acting in a sovereign capacity: this will avoid issues when dealing with separate entities in particular. Check the enforceability of the waiver clause in all jurisdictions where you are likely to seek the enforcement of any judgment or award.

Sample clause: the Model Form Joint Operating Agreement of the Association of International Petroleum Negotiator Several sample clauses can be found in case law or in model clauses proposed by international organisations. Issues to consider when contracting with a state When dealing with a state or a state-owned entity, we recommend that you carefully consider the following: To what extent can the state waive immunity?

Check what is required for the waiver to be effective under the law of the state waiving immunity. If arbitration is the chosen forum, where should the place of arbitration be?

Ensure that the place of arbitration is in a country which is party to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards and applies a restrictive approach to sovereign immunity.

In addition, make sure that the agreement includes a full waiver clause: you need to be able to bring any enforcement proceedings before the courts to realise the fruits of any award. Can you structure the transaction through a separate entity?

Where possible, structure the transaction so that it operates through a separate entity which will not benefit from state immunity, rather than through the state itself. Ideally, this separate entity should be a private incorporated body, with a separate legal personality and not be subject to the direct control of the state. Its banking facilities should be handled by a private bank, independent from the state. Consider including a stabilisation clause in the agreement.

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Sign up. We value your privacy We use cookies to improve your experience on our website. My Documents. Young, Alden v. Maine and the Jurisprudence of Structure, 41 Wm. Aqueduct , U. These principles also included state autonomy. Close The Court noted that concerns about autonomy might have been especially acute in Alden , where the plaintiffs filed in state rather than federal court.

The potential risk to the public fisc has been a special concern of immunity doctrines. Life Ins. Read, U. Close Like the federal government, states have a direct relationship with and obligation to the governed. Close This amendment prohibits the federal government from commanding local and state officers to adopt or enforce federal policies. In New York v. Close Relying on principles of sovereignty, the Court concluded that the Constitution forbade this type of commandeering.

The Constitution provides for a federal structure that vests the federal government with some powers and states with all others. Ashcroft, U. Butler, U.

Close When Congress and states have overlapping jurisdiction, the Court found that it undermined this federal structure when one sovereign purports to tell another what laws to enact.

State autonomy is also a central concern. The Court highlighted this precept in Printz v. United States , U. The compulsion of state officers frustrated state sovereignty by undermining state autonomy. EPA, F. White, 74 U. Federalism, autonomy, and representative government, then, serve as symbiotic pillars of sovereignty as conceived and lived in the American system.

This is unsurprising. Local governments serve as republican dispensaries of core sovereign functions. See M. Close Across the country, citizens elect a range of representatives to exact taxes and allocate limited resources in service of the public good.

Whether they are called city councilpersons or aldermen, county commissioners or supervisors, local elected representatives often play this crucial role. This focus exposes two competing lessons. On the one hand, if it is true that damages suits and intrusive judgments can cripple the ability of states to carry out core sovereign functions, the same is presumably true of local governments as well. A doctrine of local sovereign immunity should, indeed must, take both of these dueling normative concerns into account.

Police Power. Comstock, U. Lopez, U. Close In Gonzales v. Lohr, U. Close This general police power permits states to legislate, and sometimes litigate, on behalf of the safety and health of those within its borders.

EPA, U. Close In United States v. Morrison , a case often hailed and lamented as a quintessential example of federalism jurisprudence, E. Rubenstein, Delegating Supremacy? Geoffrey Moulton, Jr. Morrison, U. Johnson, U. These cases have sometimes acknowledged the role that local governments play in carrying out these powers.

UAW v. Close Even a cursory observation of local governments confirms this role. Cities and counties across the nation have police forces that respond to disturbances; Brian A. Close initiate arrests for major and minor crimes; See, e. Close enforce court orders; Cf. Town of Castle Rock v.

Gonzales, U. Countrywide Home Loans, Inc. Close and even enforce locally crafted ordinances. Morales, U. Park City Mun. Close When a person dials and reports an emergency, the first responder is likely not an employee of a state government in a distant state capital, but a local policeperson or firefighter.

See generally Daniel A. Close The federal act invaded this sovereignty in part because of the traditional role states have played in educating children. Bradley, U. Arkansas, U. Santa Fe Elevator Corp. Some have questioned the normative desirability, and logic, of inquiries into whether an area properly belongs to the state or federal government. States and federal governments, after all, often work cooperatively. See Robert A. Close Local governments largely fund public schools and public schools constitute a significant portion of state budgets.

Close And often, it is local city councils and school boards that make decisions about policies and resources in those schools. Close Local governments, then, play a critical role in carrying out this traditional state function. Leading scholars have astutely identified the tension inherent in treating local governments as arms of the state for some purposes, and as laboratories of democracy for other purposes.

Close But there are ways in which these conceptions are reconcilable. In ways we have come to accept, states vest local government with historically sovereign powers to protect, educate, and allocate taxes.

And like state officials, locally elected representatives often make decisions about how to wield this formidable sovereign power. Accordingly, a state has the important role of tending to its own treasury in ways that comport with the public will and public good. Virginia, 19 U. In City of Newport v. Fact Concerts, Inc. Close Local governments, after all, often exact sales and property taxes and allocate them for the public good.

CM Tax Equalization, Inc. City of Richmond, S. This concern even looms in cases that involve prospective, rather than retrospective, relief.

At oral argument in Los Angeles County v. Humphries , U. Close the case that expanded the heightened causation requirement to suits for prospective relief, several justices identified a potential injustice to taxpayers. Lawsuits and execution of legal judgments threaten local treasuries and, therefore, their ability to engage their sovereign functions. Close the same could be said of cities.

Courts, after all, sometimes award property to a prevailing party in execution of a judgment. Cox, No. May 18, affirming award of real property in execution of judgment. Close And as Professor Michael McConnell has observed, courts have on rare occasions awarded government property to litigants in execution of judgments against cities. Michael W. If this remedy were available to municipal creditors, they could seize the assets of the city.

But see Murphree v. City of Mobile, 18 So. Close For example, the case of Estate of DeBow v. City of East St. Louis N. Close involved a decision by a court to award a park and city hall building in execution of a judgment. The Illinois Appellate Court found that awarding city hall to a litigant violated public policy.

City of Chicago, 43 N. Close Still, the court simultaneously upheld the portion of the same execution order that awarded a litigant acres of city-owned vacant ground.

Close Legal judgments against Mesa, Washington, and Half Moon Bay, California, mark recent examples of legal judgments bringing cities to the brink of collapse.

In government, the power to help citizens is inevitably bundled with the power to harm them. One does not need to travel into the realm of the hypothetical to consider what types of injustices can thrive when powerful local governments are immune from suit.

Municipal Immunity Pre-Monell. And during that time, a number of local governments abused their sovereign role as custodians of education. Kermit L. In , the Supreme Court issued its landmark decision in Brown v. It is the very foundation of good citizenship. Nonetheless, neither Brown nor its sequel a year later Brown v.

Brown II , U. Wallace Jan. Close The overwhelming majority of school districts throughout the South did not integrate until the late s and early s. I Close Indeed, when they finally did, local school districts were primarily motivated by something that was not at stake in Brown and its progeny: money.

We will never know whether schools would have integrated earlier if monetary damages for psychic and emotional harms had been among the remedies available to school children throughout the South. Before Monell. Judges contemplating an affirmation of constitutional rights need not worry about the financial fallout. The curtailment of such consequences is in a sense liberating. Municipal Immunity Post-Monell.

The following case typifies this phenomenon. Jesse Buckley is a resident of Florida whom a police deputy stopped for speeding in March Haddock, F. The opinion is unpublished, perhaps suggesting that the court thought it was breaking no new ground. See David R. Miami L. Close At the time of the traffic stop, Buckley was homeless and asked the deputy to take him to jail. He allowed himself to be handcuffed, but then, after exiting the car, fell to the ground and sobbed uncontrollably.

Close The officer threatened to tase Buckley if he refused to stand, but Buckley refused to stand. Close The officer then tased the handcuffed, sobbing man three times into different areas of his back and chest. The shocks lasted roughly five seconds per round. Times Mar. Buckley sued the officer and Washington County, Florida, Buckley named the Sheriff of Washington County as a defendant, suing him in his official capacity. Buckley , F. Suing a person in his or her official capacity is the functional equivalent of suing the entity for whom that person works.

See Kentucky v. Graham, U. Strickland, F. But see McMillian v. Monroe County, U. Haugen, U. Katz, U. Connor, U. Close A federal district court dismissed the claim against the County on a motion for summary judgment. Haddock, No. Further, the city lacked a written policy on the proper use of a taser when used without darts.

The following year, in a routine unpublished opinion, the Eleventh Circuit dismissed the claim against the deputy as well on qualified immunity grounds. To be sure, a majority on an Eleventh Circuit panel apparently agreed that, at a minimum, the third instance of tasering was unconstitutional. Dubina, J. At the time of the decision, Judge Martin was a district court judge on the Northern District of Georgia sitting by designation.

Her courageous dissent was cited in the Atlanta press when President Barack Obama nominated her to the Eleventh Circuit Court of Appeals, where she now sits.

See generally Hope v. Pelzer, U. Close This meant that despite the constitutional violation, the plaintiff was left with no constitutional remedy. All statutes and constitutional provisions authorizing such statutes are liberally and beneficently construed.

It would be most strange and, in civilized law, monstrous were this not the rule of interpretation. Close The frequency with which plaintiffs are left without remedy for constitutional violations raises questions about whether this legislative promise is adequately fulfilled today. The rights—remedies gap also presents substantial challenges to federalism and the reimagined zone of autonomy anticipated by the framers of the Fourteenth Amendment.

Denise C. California, U. Any judicially crafted municipal immunity should aim to calibrate these competing demands on foundational ideals. In Swint v. Forsyth, U. Close The Court did not provide any reasons for this characterization, or describe why the two are mutually exclusive. The collateral order doctrine provides an exception to the final judgment rule where important interests cannot be vindicated if a nondispositive order cannot be appealed.

See Swint , U. Close Immunities are defenses. Greene, S. Texas, S. Jordan, S. City of Grand Prairie, F. Gettys, F. Who is right? It is not a pleading requirement. It is not an element that a plaintiff must prove to establish a constitutional violation.

Rather, the heightened causation requirement is a protection that applies to only two entities: state and local governments. Element of a Violation. Rather, the requirement protects cities from suit even when there is no question that the underlying conduct violates constitutional guarantees.

In Bryan County v. Brown , for example, the Supreme Court accepted that a deputy violated the Fourth Amendment when he slammed Jill Brown to the ground without provocation during a routine traffic stop, with enough force to break her knees. The officer stopped her because she turned her car around when she saw a police roadblock.

Close The question was whether the county that hired that deputy despite his violent criminal record could be held liable. It is federalism-based insulation from liability for the employer of the tortfeasor.

Pleading Prerequisite. Edward A. Benjamin Spencer, Plausibility Pleading, 49 B. Steinman, The Pleading Problem, 62 Stan. See generally Ashcroft v. Iqbal, U.

The case of Crawford-El v. Britton U. Close overturned a heightened pleading standard the D. Circuit imposed for certain constitutional violations that required a showing of unconstitutional motive. The Court similarly ruled in Leatherman v. Close The heightened causation requirement, then, must be something else. Legislative Command. The text renders liable:. Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State. Indeed, not only is respondeat superior the leading theory of causation today, See 2 Dobbs et al.

Close local governments are regularly held liable under a theory of respondeat superior liability for common law torts, Cf. Rosenthal, supra note , at —13 providing comprehensive list of state statutes limiting various tort liabilities. Close and even for violations of federal statutes.

Brown Bryan County U. Ellerth, U. Close For example, in the highly cited case of Thayer v. This principle was adopted widely. Charlemont, Mass. City of Worcester, Mass. Inhabitants of Ipswich, 66 Mass.

Concord, 27 N. Village of Sandy Hill, 40 N. Village of Neenah, 24 Wis. Town of Texas, 20 Wis. Close This reliance on the rejection of the Sherman Amendment has been criticized early, often, and in sharp terms. Court of its perceived jurisdiction to decide the contours of federal common law. Close This approach mirrored the methodology generally found in immunity jurisprudence. Ray , the Court ruled that local judges are absolutely immune from suits for judicial functions.

Fisher, 80 U. Close The Court reaffirmed this principle in Stump v. In Bogan v. Brandhove, U. Services, U.

Close For example, while not binding today, the Court held in Collector v. Day that Congress could not tax the salary of a state officer. The Court cited the legislative statements that confirmed this background.

They create these municipalities, they say what their powers shall be and what their obligations shall be. As with other immunities, common law and constitutional traditions created a presumption or inference against imposing obligations on states and their instrumentalities. LaHue, U. This question is best understood as having three components. Second, is it useful to think of these doctrines as a form of sovereign immunity?

This Part considers each of these questions and uses the answers as a basis for potential doctrinal reform. It is difficult to appreciate the scope, cause, or nature of the accountability gap in constitutional torts if the various doctrines of immunity and municipal causation are treated as disconnected or unrelated. They mean that the officer who shot Michael Brown and the City of Ferguson will most likely never be held accountable in court.

How many more deaths and how many more riots will it take before the Supreme Court changes course? Close No case illustrates this better than Bogan v. Close One of those city officials was the mayor who signed the legislation eliminating the position. Close The First Circuit affirmed the verdict against the city officials, concluding that the decision to eliminate the position was more of an administrative personnel choice than a legislative choice. City of Fall River, F.

Close The court reversed the verdict against the city, however, finding that there was insufficient evidence that the retaliatory motive was widely shared by other council members. Close By the time the case reached the Supreme Court, the question presented was whether and, if so, when the doctrine of legislative immunity should extend to the local governmental officials.

While the Court provided multiple reasons for its decision to extend the doctrine of absolute legislative immunity to this context, For example, the Court noted it had extended the doctrine of absolute immunity to legislators of regional commissions several decades earlier.

See id. Close one of those reasons is simultaneously striking, concerning, and revealing. B discussing Monell. On a more specific level, the plaintiff in Bogan could not sue the local government. Fall River, F. When defining the scope of individual liability against constitutional tortfeasors, courts should not lose sight of the ever-narrowing scope of municipal liability.

As Bogan demonstrates, it is sometimes conceptually difficult to appreciate the manner in which these doctrines interact to expand the rights—remedies gap. And if nothing else, thinking of these doctrines as one synergistic doctrine rather than isolated strands helps reduce the likelihood that we or worse, courts will commit this error.

Sovereign immunity is not tethered to any particular constitutional or legislative provision. This is true of federal, state, and local sovereign immunity. Courts have treated federal sovereign immunity as an unquestionable, self-evident premise, See, e.

Bormes, S. Close and have only occasionally relied on constitutional text. Testan , U. Paul F. Close this is a misnomer. The Court has made clear that sovereign immunity is neither derived from nor limited by the text of that amendment. Rather, because states entered the union as sovereign, they remain sovereign, and are therefore immune from suit. B describing reliance of state sovereign immunity jurisprudence on republican sovereignty.

The atextual nature of state sovereign immunity has led to sustained and varied critiques of the doctrine. Close In prior work, I have joined the chorus of these criticisms in the context of suits sounding in federal question jurisdiction and suggested that there are ways to alter the doctrine that would help further its purported aims such as protecting representative democracy. Close The doctrine of local sovereign immunity—which has a common genesis and common aims as the doctrine of state sovereign immunity—should be a part of those conversations.

This is especially true in light of the vast costs of the heightened causation requirement and related individual immunities. First, the requirement often leaves victims of lawless conduct with no defendant to sue, despite a constitutional violation. Haddock without remedy. Close That is, the requirement conspires with absolute or qualified immunity, ensuring that the victim is left with no legal remedy whatsoever. Second, the requirement sometimes permits a plaintiff to sue a government wrongdoer, but not the municipality who employs that wrongdoer.

Ramirez, U. Between these two outcomes, of particular concern are those cases in which no government actor may be held accountable for constitutional wrongdoing. Close Leaving plaintiffs without a remedy against any defendant undermines this goal.

Are there ways to achieve fewer instances in which victims are left with no legal remedy against any actor? Closing the rights—remedies gap for local violations would require amending the heightened causation requirement, amending qualified and absolute immunities, or both.

And conceptualizing the barriers to constitutional suits against local-government defendants provides a framework and set of principles for discussions about what such reforms might look like. As it stands today, the Court often eliminates avenues for government accountability while expressly and sometimes wrongly assuming that other avenues are available. The precise nature of such reforms is beyond the scope of this project. In addition, understanding the genesis and development of municipal immunities for state common law torts can help us place in context how anomalous and anachronistic our approach to constitutional torts has become.

The idea is worthy of serious consideration and study. Schapiro, supra note , at ; see also Robert A. On the other hand, history has shown that vesting state governments with the power to decide when local governments are subject to federal suit can lead to mischief and obstruction of the enforcement of federal rights.

See Howlett v. Rose, U. As state sovereignty jurisprudence has ascended, the Court has not relied on the monarchial, static, hierarchical version of sovereignty often associated with that word. United States, S. Republican-inspired metrics can be used in tandem with, rather than to the exclusion of, metrics like compensation, deterrence, and accountability for their own sakes.

See Erwin Chemerinsky, The Case Against the Supreme Court —98 discussing intrinsic value of holding government accountable for unconstitutional or unlawful acts ; Bernard P. And yet, despite the purported aims of republican sovereignty, the doctrine of sovereign immunity in the American tradition often resembles its ancient counterpart.

Schuck, Suing Governments: Citizen Remedies for Official Wrongs 30—35 discussing sovereign immunity in English common law tradition. Close By contrast, in the American system, one often cannot sue the State or its officials for damages, even when people have collectively agreed to make states liable for damages through acts of Congress.

Garrett, U. See supra section I. C considering individual immunities for government agents. Close And while individuals may sue state officials for declaratory and injunctive relief, this is ostensibly only because the Court has analogized the State to the Crown, and concluded that because the State like the King can do no wrong, it is logically impossible for the State to be responsible for ongoing illegal acts by its agents.

To that end, this Article has discussed an accountability gap in local constitutional litigation, documenting the doctrine from which it originates and the form the accountability gap takes.

Again, this alone cannot possibly tell us what the precise contours of sovereign immunity generally—or local sovereign immunity in particular—should look like.

Readers are invited to think about what a form of sovereign immunity that is more consistent with republican values could or should be. Because of the atextual, amorphous, and contested nature of state sovereign immunity, individuals will inevitably weigh various factors differently. Others may conclude a rights—remedies gap is an unacceptable cost, notwithstanding the countervailing factors. As we work toward a system of constitutional torts that better reflects our constitutional aspirations, regardless of whether Congress or courts lead the way, the following two related considerations warrant further study.

A Synergistic Remedy? Close A flagrant, intentional, highly consequential constitutional violation almost cost Thompson his life. And yet, our legal system renders his constitutional and incidentally, state law claims unintelligible.

Close —is the only solution.