Local Sovereign Immunity

80 Pages Posted: 11 Dec 2017

Date Written: March 6, 2016


When governmental actors offend federal rights, victims are often left with no one to hold accountable in federal courts. This Article explores this accountability gap in cases involving local officials' violations of the Constitution. Local government, after all, is the layer of government that is often closest to our daily lives, from law enforcement to education. This Article argues that as a descriptive matter, contrary to the conventional account, a form of sovereign immunity protects local governments from federal constitutional suits. And this immunity unduly obstructs constitutional accountability.

Local sovereign immunity operates primarily through two doctrines that, together, prevent remedies for violations of federal rights. First, a special, stringent causation requirement often prohibits recovery against local governments, even when that government's agent violates federal constitutional rights. This causation requirement shares core historical and ideological commitments with the Supreme Court's state sovereignty jurisprudence. The requirement also shares historical roots with common law doctrines barring or limiting suits against local governments for traditional torts. Second, like federal and state officials, local actors are often entitled to qualified and absolute immunities, blocking suits against such actors in their individual capacities. Qualified and absolute immunities have roots in the doctrine of sovereign immunity.

This Article observes that the version of state sovereignty that infuses these immunity doctrines is inflected with concerns about republicanism, representative government, federalism, and autonomy. It concludes by advocating for reforms that would narrow the rights-remedies gap for constitutional violations, while showing due respect for 410 the values that undergird this American jurisprudence of “republican sovereignty.” Potential reforms include permitting suits against local governments when there is no other federal remedy available and placing restrictions on the execution of judgments instead of restricting the availability of suits.

Keywords: immunity, constitutional torts, federalism, sovereignty, autonomy, representative government, local government, Monell, Section 1983

Suggested Citation

Smith, Jr., Fred, Local Sovereign Immunity (March 6, 2016). Columbia Law Review, Vol. 116, No. 409, 2016, Available at SSRN: https://ssrn.com/abstract=3083491

Fred Smith, Jr. (Contact Author)

Emory University School of Law ( email )

1301 Clifton Road
Atlanta, GA 30322
United States

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