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Civil Rights and Public Entity Law
What Lies Ahead for Claims against Governmental Entities
Based on the articles presented herein, it seems as if the Supreme Court and Congress are not likely to upset the qualified immunity doctrine in any real or appreciable manner in the foreseeable future. The Court has now had opportunities post-George Floyd to shape or restate the doctrine and has not taken any steps to weaken the doctrine. Additionally, Congress has introduced bills to end qualified immunity, but the bills have not advanced to a stage where they are likely to be passed.
What that has done, however, is caused some states to take the matter into their own hands. New Mexico followed several other states in creating a private right of action for money damages for violations of the state constitution’s bill of rights, and in doing so, prevented the use of qualified immunity in those claims. Washington state courts have expanded the rights of plaintiffs in claims against governmental entities by creating exceptions to the public duty doctrine. These efforts may lead more plaintiffs out of federal court and cause them to bring claims in state courts to enforce what were previously federal claims. Given the outcry against qualified immunity that gained so much attention after George Floyd and the potential for nuclear verdicts created by social inflation, it will certainly become much more difficult to defend these state law claims against governmental entities and their employees. Governmental entities and the lawyers who represent them will need to be ever-vigilant to protect the rights of governmental entities from these social factors that could potentially increase jury awards against them.
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FDCC ANNUAL FIVES 2023