McKenna v. Julian, S-08-183.

• Decision Date: 03 April 2009
• Docket Number: No. S-08-183.,S-08-183.
• Citation: 763 N.W.2d 384,277 Neb. 522
• Parties: William McKENNA, appellant, v. Jason JULIAN and The City of Omaha, a political subdivision, appellees.
• Court: Nebraska Supreme Court

763 N.W.2d 384

277 Neb. 522

William McKENNA, appellant, v. Jason JULIAN and The City of Omaha, a political subdivision, appellees.

No. S-08-183.

Supreme Court of Nebraska.

April 3, 2009.

Daniel W. Ryberg, Omaha, for appellant.

Thomas O. Mumgaard, Deputy Omaha City Attorney, for appellees.

HEAVICAN, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

McCORMACK, J.

NATURE OF CASE

William McKenna brought suit against the City of Omaha and Jason Julian, a City of Omaha police officer (collectively the City of Omaha), seeking damages for alleged constitutional violations. McKenna argues that his rights were violated under the Nebraska Constitution and that the Nebraska Constitution provides him with a direct cause of action for damages against the political subdivision and its employee. The district court dismissed McKenna's complaint for failure to state a claim for which relief can be granted. McKenna appeals.

BACKGROUND

Because this case was dismissed on the pleadings, the circumstances instigating this case will be recounted based on McKenna's complaint. On December 9, 2005, two Omaha police officers, including Julian, made certain comments to McKenna's wife somewhere near McKenna's business establishment. McKenna alleges that he expressed his displeasure to the officers in a nonvulgar manner and then walked into the kitchen of his establishment. The officers followed McKenna into the establishment and ordered him out of the kitchen. McKenna maintains that he complied with the officers' orders but that he was assaulted by Julian under color of law, was cited for a crime, and suffered injuries. McKenna was charged with criminal conduct, and he was found not guilty on all charges.

Subsequently, McKenna filed suit. In his complaint, McKenna alleged four causes of action: (1) false arrest; (2) unconstitutional seizure; (3) excessive use of force; and (4) oppression under color of office, pursuant to Neb.Rev.Stat. § 28-926 (Reissue 2008). McKenna sought relief in the form of money damages.

The City of Omaha filed a partial motion to dismiss and a motion for a more definite statement. In its partial motion to dismiss, the City of Omaha alleged that McKenna's claim under § 28-926 should be dismissed because § 28-926 is purely criminal in nature and does not provide for an independent civil remedy. The City of Omaha also asserted that McKenna's cause of action under § 28-926 was barred by the statute of limitations. The court sustained the City of Omaha's partial motion to dismiss as to § 28-926 and overruled its motion for a more definite statement. The court's dismissal of the § 28-926 claim has not been appealed.

Subsequently, the City of Omaha filed a motion to dismiss as to the remaining causes of action, which motion the district court granted. In its order, the district court concluded that Neb. Const. art. I, §§ 3 and 7, do not grant McKenna any right to bring an action for civil remedies, because neither section is self-executing. Thus, the district court concluded that there was no authority for McKenna to sue directly under the constitution for the deprivation of rights he was claiming. The district court noted that McKenna failed to cite to any statutory authority as a basis for the causes of action for false arrest under article I, § 3, and unconstitutional seizure under article I, § 7. The district court also concluded that McKenna's causes of action for false arrest, unconstitutional seizure, and excessive use of force arise out of an assault, battery, or false arrest. Thus, McKenna's causes of action fell under the Political Subdivisions Tort Claims Act (PSTCA),¹ which specifically insulates the City of Omaha from liability arising out of such claims. The district court dismissed McKenna's complaint for lack of subject matter jurisdiction. McKenna appeals.

ASSIGNMENTS OF ERROR

McKenna argues that the district court erred in (1) determining that article 1, § 3 or § 7, is not self-executing and (2) implicitly concluding that McKenna cannot amend his complaint to state a claim for relief.

STANDARD OF REVIEW

An appellate court reviews a district court's grant of a motion to dismiss de novo, accepting all the allegations in the complaint as true and drawing all reasonable inferences in favor of the nonmoving party.² Complaints should be liberally construed in the plaintiff's favor and should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his or her claim which would entitle the plaintiff to relief.³

ANALYSIS

FAILURE TO STATE CLAIM

McKenna brought this action against Julian, an employee of the Omaha Police Department. When an action is brought against an individual employee of a state agency, a court must determine whether the action against the individual official is in reality an action against the state and therefore barred by sovereign immunity.⁴ It is apparent from the allegations contained in McKenna's complaint that the alleged actions by Julian arose within the scope of McKenna's employment with the Omaha Police Department.

McKenna argues that Neb. Const. art. I, §§ 3 and 7, are self-executing and therefore provides him a direct cause of action. Article I, § 3, the due process provision, states: "No person shall be deprived of life, liberty, or property, without due process of law, nor be denied equal protection of the laws." Article I, § 7, the search and seizure provision, states:

The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.

Tort actions against the state and its political subdivisions are prosecuted pursuant to the PSTCA.⁵ But McKenna urges this court to find an alternative private right of action in damages directly from our state Constitution for alleged violations of his constitutional rights, extending the rationale of the court in Bivens v. Six Unknown Fed. Narcotics Agents.⁶ McKenna fails to explain, however, how these provisions, even if self-executing, waive our state's sovereign immunity.

It is well-settled law in Nebraska that sovereign immunity deprives a trial court of subject matter jurisdiction for lawsuits in which the state or certain governmental units have been sued, unless the state consents to suit.⁷ Neb. Const. art. V, § 22, provides that the state may sue and be sued and that the Legislature shall provide by law in what manner and in what courts suits shall be brought.⁸ We have interpreted this provision to mean that the state is permitted to lay its sovereignty aside and consent to be sued on such terms and conditions as the Legislature may prescribe.⁹ We have further explained that this provision is not self-executing, but instead requires legislative action for waiver of the state's sovereign immunity.¹⁰

The Legislature, through the PSTCA, has removed, in part, the traditional immunity of subdivisions for the negligent acts of their employees.¹¹ The Legislature declares in the PSTCA that

no political subdivision of the State of Nebraska shall be liable for the torts of its officers, agents, or employees, and that no suit shall be maintained against such political subdivision or its officers, agents, or employees on any tort claim except to the extent, and only to the extent, provided by the [PSTCA].¹²

In other words, tort actions against political subdivisions of the State of Nebraska are governed exclusively by the PSTCA.¹³

The PSTCA prescribes the procedure for maintenance of a suit against a political subdivision¹⁴ and also provides a list of claims for which sovereign immunity is not waived.¹⁵ These exceptions to the PSTCA's waiver of sovereign immunity include: "Any claim arising out of assault battery, false arrest, false imprisonment, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights."¹⁶

We strictly construe the PSTCA in favor of the political subdivision and against the waiver of sovereign immunity.¹⁷ It is clear that the Legislature has not waived sovereign immunity for McKenna's false arrest claim.

We find nothing in Bivens¹⁸ that is relevant to the question of whether the State of Nebraska has waived its sovereign immunity from a claim based on false arrest. In Bivens, the U.S. Supreme Court recognized an implied private cause of action against a federal agent acting under color of authority who subjected the plaintiff to a false arrest in violation of the Fourth Amendment to the U.S. Constitution.¹⁹ The Court thus reversed the lower court's dismissal of the plaintiff's claim on the grounds that there was no federal common law or federal statute creating any right of action for false arrest. The Court noted that the power possessed by federal agents, "once granted, does not disappear like a magic gift when it is wrongfully used."²⁰ But in Bivens, the Court did not address sovereign immunity. Under the Federal Tort Claims Act, the U.S. government waived sovereign immunity for certain intentional torts committed by its investigative and law enforcement officers, including false arrest.²¹ The Court did not hold that a self-executing constitutional provision, in itself, waives a political subdivision's sovereign immunity.

We agree with other courts that have reasoned that the existence of a self-executing constitutional right does not entail waiver of the state's sovereign immunity from suit based upon such a right.²² Instead, when a constitutional provision is self-executing, unless it specifically includes language implicating sovereign immunity, it merely creates a right that does not need further legislative action in order to become operable against nonsovereigns.²³ An...