It is common to see news headlines about cases brought against law enforcement for things like excessive force or unconstitutional policies. However, there are a surprising number of legal barriers between the wrongful act and an actual monetary recovery.
Generally speaking, it is preferrable to sue law enforcement in federal court, since plaintiffs can bring related state claims in addition to the claims for constitutional violations. Which parties can be sued depends on which law enforcement body violated the plaintiff's rights. The Eleventh Amendment grants sovereign immunity to state actors in cases for monetary damages, meaning that entities like state prisons and the state police are completely immune to any claim for damages. Christ the King Manor, Inc. v. Sec’y U.S. Dep't of Health & Hum. Servs., 730 F.3d 291, 318 (3d Cir. 2013). By contrast, municipal entities like city police departments can be sued for money damages.
When suing any public entity, a Notice of Claim must be filed within 90 days. If this step is not completed, the plaintiff is likely to lose the right to ever bring a claim: https://www.nj.gov/treasury/riskmgt/pdf/ClaimShortForm.pdf. After filing the Notice of Claim, the plaintiff has to wait six months to allow time for the public entity has six months to respond, before it is possible to file a lawsuit.
When drafting a complaint, it is important to know which constitutional amendments support the different types of claims that can be brought based on § 1983, so that the complaint is pleaded correctly and can survive a motion to dismiss. This topic will be covered in Part 2. Once the lawsuit is filed, law enforcement officials still enjoy a great deal of protection in the form of qualified immunity, which will be covered in Part 3.