Krystal Wagner, Individually and as Administrator of the Estate of Shane Jensen v. State of Iowa and William L. Spece a/k/a Bill L. Spece

IN THE SUPREME COURT OF IOWA
No. 19–1278

Submitted September 16, 2020—Filed December 31, 2020

KRYSTAL WAGNER, Individually and as Administrator of the Estate of
Shane Jensen,

Plaintiffs,

vs.

STATE OF IOWA and WILLIAM L. SPECE a/k/a BILL L. SPECE,

Defendants.

Certified questions of law from the United States District Court for

the Northern District of Iowa, C.J. Williams, United States District Court

Judge.

A federal district court certified four questions of Iowa law in a

wrongful death and loss of consortium case including damage claims

under the Iowa Constitution. CERTIFIED QUESTIONS ANSWERED.

Mansfield, J., delivered the opinion of the court, in which
Christensen, C.J., and Waterman, McDonald, Oxley, and McDermott, JJ.,

joined. Appel, J., filed a dissenting opinion.

David A. O’Brien (argued) of Dave O’Brien Law, Cedar Rapids, and

Nathan Borland of Timmer & Judkins, P.L.L.C., West Des Moines, for

plaintiffs.
 2

Thomas J. Miller, Attorney General, Jeffrey S. Thompson, Solicitor

General (argued), Jeffrey C. Peterzalek and Tessa M. Register, Assistant

Attorneys General, for defendants.
 3

MANSFIELD, Justice.

We have been asked to answer four certified questions of law in a

federal case brought by a mother, individually and as the administrator of

her son’s estate, against the State of Iowa and a Department of Natural

Resources (DNR) officer. The officer shot and killed the son during an

armed standoff. At the time, the son was nineteen years old and suicidal.

The mother filed suit in federal court, alleging claims under the

United States Constitution (via 42 U.S.C. § 1983) and the Iowa

Constitution, as well as a common law negligence claim. The State and
the DNR officer filed a motion to dismiss on various grounds, and the

federal district court granted the motion in part. In particular, based on

the Eleventh Amendment, the federal court dismissed without prejudice

all claims against the State. On the same ground, it dismissed all claims

against the DNR officer in his official capacity. The federal court also found

as a matter of law that the DNR officer was acting within the scope of his

employment when he shot and killed the young man. It dismissed without

prejudice the mother’s negligence claims for failure to exhaust

administrative remedies under the Iowa Tort Claims Act. The federal court

refused to dismiss the claims under the United States Constitution and 42

U.S.C. § 1983 against the DNR officer in his individual capacity.

After explaining these rulings, the court certified the following

questions to us:

[1]. Does the Iowa Tort Claims Act, Iowa Code
Chapter 669, apply to plaintiffs’ [state] constitutional tort
causes of action?

[2]. Is the available remedy under the Iowa Tort Claims
Act for excessive force by a law enforcement officer inadequate
based on the unavailability of punitive damages? And if not,
what considerations should courts address in determining
whether legislative remedies for excessive force are adequate?
 4
[3]. Are plaintiffs’ claims under the Iowa Constitution
subject to the administrative exhaustion requirement in Iowa
Code section 669.5(1)?

[4]. Are plaintiffs required to bring their Iowa
constitutional claims in the appropriate Iowa district court
under Iowa Code section 669.4?

In answering these questions, we are guided by the principle that

the legislature has the right to regulate claims against the State and state

officials, including damage claims under the Iowa Constitution, so long as

it does not deny an adequate remedy to the plaintiff for constitutional

violations. We also conclude that the legislature intended the Iowa Tort
Claims Act to serve as the gateway for all tort litigation against the State.

Therefore, we answer the questions as follows:

1. Yes, as to the procedural requirements of that Act.

2. No.

3. Yes.

4. Yes.

I. Background Facts and Proceedings.

“When we answer a certified question, we rely upon the facts

provided with the certified question.” Baldwin v. City of Estherville

(Baldwin I), 915 N.W.2d 259, 261 (Iowa 2018). Here, the federal district

court adopted plaintiffs’ complaint as the statement of facts for purposes

of the certified questions only.

According to the complaint, Shane Jensen, the son of plaintiff

Krystal Wagner, was nineteen years old on Saturday, November 11, 2017.

He suffered from numerous mental health issues and was understood to

be suicidal. He had just broken up with his girlfriend on November 9 and

destroyed some of her property. A warrant was issued for Jensen’s arrest
that day. On November 10, Jensen obtained a handgun at a relative’s

home.
 5

On Saturday, November 11, a Humboldt police officer and three

Humboldt County deputy sheriffs encountered Jensen hiding under a

deck at a friend’s home. He was ordered to come out. Although Jensen

emerged pointing his gun at the police officer, the officer did not shoot

because he was aware of Jensen’s condition. Instead, the officer retreated

to cover. Likewise, the sheriff’s deputies understood Jensen’s condition

and did not fire their weapons.

After emerging, Jensen stood in an open area and pointed his gun

to his own head. Jensen then fired a single shot into the air above his own
head. He yelled words to the effect that the officers were going to have to

kill him. However, Jensen never pointed his gun at any of the officers.

In addition to local law enforcement, a DNR officer named William

Spece was present, having assisted in the search for Jensen. Officer Spece

had been made aware of Jensen’s condition. However, unlike the other

officers, Officer Spece did not hold his fire. Instead, Officer Spece fired a

single round from his rifle at Jensen. Officer Spece claimed that Jensen

was training his weapon on the officers, but a video of the incident showed

that was not true. In any event, the bullet from Officer Spece’s rifle struck

Jensen in the chest and killed him.

On February 13, 2019, Wagner filed a complaint in the United States

District Court for the Northern District of Iowa, bringing claims both

individually and as the administrator of Jensen’s estate. She alleged that

Officer Spece had used excessive and unjustified force, that he lacked

sufficient training, that he had failed to follow protocols, and that he “failed

to appropriately heed the warning he was given that Jensen was suicidal

and may be seeking to commit suicide by cop.” Wagner named as
defendants the State, Officer Spece in an official capacity, and Officer

Spece in an individual capacity.
 6

Wagner’s claims included excessive force in violation of the Fourth

Amendment of the United States Constitution and article I, section 8 of

the Iowa Constitution (count I); denial of substantive due process in

violation of the Fourteenth Amendment of the United States Constitution

and article I, section 9 of the Iowa Constitution (count II); wrongful hiring

and failure to train in violation of the Fourth Amendment of the United

States Constitution and article I, section 8 of the Iowa Constitution (count

III); wrongful death—common law negligence (count IV); and loss of

consortium (count V).1
The defendants filed a motion to dismiss. Following a hearing, the

federal district court dismissed all claims against the State. In so doing,

the court relied on the State’s Eleventh Amendment immunity, which

prevents it from being sued in federal court without its consent or a valid

congressional override. The court also dismissed on the same ground all

claims against Officer Spece in his official capacity. See Kentucky v.

Graham, 473 U.S. 159, 169, 105 S. Ct. 3099, 3107 (1985) (“The Court has

held that, absent waiver by the State or valid congressional override,

the Eleventh Amendment bars a damages action against a State in federal

court. This bar remains in effect when State officials are sued for damages

in their official capacity.” (citation omitted)).

The court denied the motion to dismiss Wagner’s federal

constitutional claims to the extent they were brought against Officer Spece

in his individual capacity. Thus, count I and count II could go forward

against Officer Spece individually under 42 U.S.C. § 1983 and the United

1In Godfrey v. State (Godfrey II), 898 N.W.2d 844 (Iowa 2017), we recognized the
existence of tort claims under the Iowa Constitution when the legislature has not provided
an adequate remedy. Id. at 845 (plurality opinion), 880 (Cady, C.J., concurring in part
and dissenting in part). We shall refer to them at points in this opinion as “Godfrey
claims.”
 7

States Constitution. See Hafer v. Melo, 502 U.S. 21, 31, 112 S. Ct. 358,

365 (1991) (“We hold that state officials, sued in their individual capacities,

are ‘persons’ within the meaning of § 1983. The Eleventh Amendment

does not bar such suits . . . .”).2

The court also dismissed without prejudice Wagner’s state common

law claims against Officer Spece, finding they fell entirely within the Iowa

Tort Claims Act (ITCA), whose administrative process Wagner had not

exhausted. In particular, the court determined as a matter of law that

“Officer Spece was acting within the scope of his employment for purposes
of the ITCA.” This had the effect of sweeping all of Wagner’s common law

claims within the coverage of the ITCA. See Iowa Code § 669.5(1) (2019).

Because Wagner had not previously invoked the ITCA’s administrative

process, the common law claims set forth in count IV were dismissed

without prejudice as to Officer Spece.

This left the claims under the Iowa Constitution against Officer

Spece in his individual capacity. In this regard, the court certified four

questions of law to our court, as set forth in the introduction to this

opinion.

II. Should We Answer the Certified Questions?

Iowa law provides,

The supreme court may answer questions of law
certified to it by the supreme court of the United States, a
court of appeals of the United States, a United States district
court or the highest appellate court or the intermediate
appellate court of another state, when requested by the
certifying court, if there are involved in a proceeding before it
questions of law of this state which may be determinative of
the cause then pending in the certifying court and as to which

2The constitutional claims in Count III involved alleged wrongful hiring and
training of Officer Spece, and thus were not asserted against Officer Spece in his official
or individual capacity.
 8
it appears to the certifying court there is no controlling
precedent in the decisions of the appellate courts of this state.

Iowa Code § 684A.1. Accordingly, we have held,

It is within our discretion to answer certified questions
from a United States district court. We may answer a question
certified to us when (1) a proper court certified the question,
(2) the question involves a matter of Iowa law, (3) the question
“may be determinative of the cause . . . pending in the
certifying court,” and (4) it appears to the certifying court that
there is no controlling Iowa precedent.

Baldwin I, 915 N.W.2d at 265 (quoting Roth v. Evangelical Lutheran Good

Samaritan Soc’y, 886 N.W.2d 601, 605 (Iowa 2016)).
The parties dispute whether the third criterion has been met. The

only claims currently pending in the federal litigation have been asserted

against Officer Spece in his individual capacity. The claims under the Iowa

Constitution against the State and Officer Spece in his official capacity

have been dismissed without prejudice. As Officer Spece notes, we have

so far recognized a direct claim under the Iowa Constitution only against

a government entity or a government official who is sued in their official

capacity. See Baldwin I, 915 N.W.2d at 265 (“Last year, in Godfrey [v.

State (Godfrey II), 898 N.W.2d 844 (Iowa 2017)], we held that the State of

Iowa and state officials acting in their official capacities could be sued

directly for violating article I, section 6 (the Iowa equal protection clause)

and article I, section 9 (the Iowa due process clause), where state law does

not provide an adequate compensatory damage remedy.”); see also

Venckus v. City of Iowa City, 930 N.W.2d 792, 799 n.1 (Iowa 2019) (“In

Godfrey [II], this court held the State of Iowa and state officials acting in

their official capacities could be sued directly for violations of the equal

protection and due process clauses of the Iowa Constitution but only
where state law does not otherwise provide an adequate damage remedy.”);

Baldwin v. City of Estherville (Baldwin II), 929 N.W.2d 691, 696 (Iowa 2019)
 9

(“We recognized that a direct cause of action for damages resulting from

an Iowa constitutional tort could be brought against the state and

state officials in their official capacities in the recent case of Godfrey [II].”).

We have never recognized a Godfrey claim against a government official in

their individual capacity. Accordingly, the defendants argue that the only

remaining state constitutional claims are not viable, obviating any need

for us to answer the certified questions.

Without citing any authority, Wagner responds that direct

constitutional claims in Iowa can be brought against public officials acting
in their individual capacity in addition to their official capacity.

Alternatively, Wagner urges that the claims against the State and Officer

Spece in his official capacity could potentially be reinstated based on how

we answer the certified questions.

Wagner’s second contention is incorrect. The Eleventh Amendment

will not allow the federal court to entertain Wagner’s claims against the

State and Officer Spece acting in his official capacity regardless of how we

answer the certified questions. See Graham, 473 U.S. at 169, 105 S. Ct.

at 3107. However, Wagner’s first contention merits greater attention.

Under federal precedent, state and local officials may be sued in

their personal capacity under 42 U.S.C. § 1983 for actions undertaken in

their official roles that violate the United States Constitution. See Hafer,

502 U.S. at 27, 112 S. Ct. at 362. If we adopted the same legal fiction in

Iowa, that is, if we allowed Godfrey claims to be pursued against state

officials in their individual capacity, then the answers to the certified

questions would matter. To be precise, if our certified answers indicated

that the ITCA does not apply to Wagner’s Godfrey claims, there would be
a path forward in federal court for Wagner’s individual-capacity Godfrey

claims (assuming such claims were permissible).
 10

Under these circumstances, we believe the better course of action is

to answer the certified questions. For if we did not answer these questions,

we would have to answer a different question—namely, whether individual

capacity Godfrey claims are available. If we decided individual capacity

claims were not available, and therefore declined to answer the certified

questions, those questions would still need to be answered at some point.

In fact, assuming Wagner refiled her Iowa constitutional claims in our

courts, we might see them down the road in the state-court version of this

litigation.
Furthermore, the answers to the certified questions may dictate the

answer to the individual-capacity question. Under the ITCA, state officials

who were acting within the scope of their office or employment may only

be sued in the name of the State, i.e., in their official capacity. ITCA

coverage ordinarily leads to Eleventh Amendment immunity in federal

court. In that sense, the answers to the certified questions may be the dog

that wags the individual-capacity question tail. For these reasons, we

proceed to answer the certified questions.

III. Does the Iowa Tort Claims Act, Iowa Code Chapter 669,
Apply to Plaintiffs’ Constitutional Tort Causes of Action?

The first question is whether the ITCA applies to Wagner’s
constitutional tort causes of action. For the reasons discussed herein, we

conclude that the ITCA’s procedures apply to her claims.

A. Recent Caselaw on Damages Claims Under the Iowa

Constitution. We begin by summarizing briefly our recent caselaw on

direct constitutional claims for damages. In 2017, in Godfrey II, our court

ruled that direct claims could be brought under the Iowa Constitution
without legislative authorization. 898 N.W.2d at 847 (plurality opinion),

880 (Cady, C.J., concurring in part and dissenting in part). Godfrey II did
 11

not have a majority opinion. Casting the deciding vote, a concurrence in

part made clear that the court should imply damage remedies under the

Iowa Constitution only when the legislative remedies were inadequate. Id.

at 880 (Cady, C.J., concurring in part and dissenting in part). The

concurrence in part joined the plurality opinion “to the extent it would

recognize a tort claim under the Iowa Constitution when the legislature

has not provided an adequate remedy.” Id. The concurrence in part went

on to find that the Iowa Civil Rights Act (ICRA) provided adequate remedies

for Godfrey’s claims of discrimination based on sexual orientation, and
therefore those remedies were exclusive. Id. at 880–81.

Apart from recognizing the existence of a direct constitutional claim

for damages, Godfrey II “express[ed] no view on other potential defenses

which may be available to the defendants.” Id. at 880 (plurality opinion).

Godfrey II, as already noted, involved claims against the State and state

employees acting in their official capacity. See also id. at 845–46, 893–94

(Mansfield, J., dissenting).

The following term, the Baldwin case came before us for the first

time. Baldwin I, 915 N.W.2d 259. Baldwin was a federal court proceeding

against a city and city officials where we were called upon to answer

certified questions. Id. at 260. In 2018, in Baldwin I, we addressed

whether a qualified immunity defense was available for a direct

constitutional claim under article I, section 8 of the Iowa Constitution. Id.

at 260–61. We declined to strictly follow the immunities in the Iowa

Municipal Tort Claims Act (IMTCA)—or for that matter the ITCA. Id. As

we explained, “The problem with these acts . . . is that they contain a grab

bag of immunities reflecting certain legislative priorities. Some of those
are unsuitable for constitutional torts.” Id. at 280. Instead, we determined

that an official who had exercised “all due care” should not be liable for
 12

damages, a standard that bears resemblance to one of the immunities set

forth in the ITCA and the IMTCA. Id. at 279–80 (citing Iowa Code

§§ 669.14(1), 670.4(1)(c)). Baldwin I expressly left open whether other

provisions of the ITCA and the IMTCA would apply to constitutional tort

claims against public officials and public agencies. Id. at 281.

In 2019, in Baldwin II, we answered that open question as to the

IMTCA. 929 N.W.2d 691. We held that the IMTCA generally governs

constitutional tort damage claims against municipalities and municipal

employees acting in their official capacities. Id. at 697–99 (quoting Iowa
Code § 670.1(4)). Summing up, we said that “the IMTCA applies to

Baldwin’s Iowa constitutional tort causes of action.” Id. at 698.

Accordingly, we found that punitive damages and attorney fees could not

be awarded against a municipality because the IMTCA did not allow such

awards. Id. at 699–700. A partial dissent disagreed, arguing “it is critical

that punitive damages be available against a government entity in a proper

case in order to provide an adequate remedy to the state constitutional

tort.” Id. at 703 (Appel, J., concurring in part and dissenting in part).

Just a few weeks later in Venckus, another 2019 case involving

claims against municipalities and municipal officials, we reiterated that

“[c]laims arising under the state constitution are subject to the IMTCA.”

930 N.W.2d at 808. Applying the IMTCA, we held in Venckus that the two-

year statute of limitations in Iowa Code section 670.5 governed

constitutional tort actions against a municipality and its employees acting

in their official capacity. Id. at 809.

B. Relevant Language in the ITCA. The ITCA and the IMTCA are

worded somewhat differently. The IMTCA by its terms applies to “actions
based upon . . . denial or impairment of any right under any constitutional

provision.” Iowa Code § 670.1(4). The ITCA, by contrast, does not
 13

expressly cover “constitutional” tort claims. See id. § 669.3.3 In addition,

the ITCA, unlike the IMTCA, excludes claims for assault or battery. See

id. §§ 669.14(4), .23; Thomas v. Gavin, 838 N.W.2d 518, 522 (Iowa 2013)

(“[T]here is no counterpart in section 670.4 to the ITCA’s exception for

claims based on assault, battery, false arrest, or malicious prosecution.”).

It should be remembered, of course, that neither the ITCA nor the IMTCA

itself creates a cause of action. Venckus, 930 N.W.2d at 809; Rivera v.

Woodward Res. Ctr., 830 N.W.2d 724, 727 (Iowa 2013); Minor v. State, 819

N.W.2d 383, 405 (Iowa 2012).
Even though the ITCA does not specifically mention constitutional

torts, it applies to:

b. Any claim against an employee of the state for money
only, . . . on account of personal injury or death, caused by
the negligent or wrongful act or omission of any employee of

3The dissent suggests that this difference in language implies a conscious decision
by the legislature, when it amended the IMTCA but not the ITCA in 1974, to allow
constitutional tort claims against the State to proceed outside the ITCA. See 1974 Iowa
Acts ch. 1263, § 2 (now codified at Iowa Code § 670.1(4)). An “exit ramp” so to speak.
But this disregards several points. First, and most importantly, the established view in
1974 was that the State was immune from constitutional tort claims. As we discuss
herein in the main text, there was no pre-Godfrey precedent allowing a direct
constitutional claim for damages against the State or a state official. Godfrey II cites none
and the dissent today cites none. As the main text explains, there was precedent against
such claims.
Municipal tort claims have always stood on a somewhat different footing from tort
claims against the State. As discussed in Boyer v. Iowa High School Athletic Association,
even before the IMTCA came along, there were some situations where municipalities could
be sued. 256 Iowa 337, 340–41, 127 N.W.2d 606, 608 (1964). The concept was
governmental immunity, not sovereign immunity. See id. Thus, in the 1974 amendment,
and continuing to this day, the legislature has given a wider berth for claims against
municipalities than claims against the State. Accordingly, the IMTCA contains, on the
whole, a broader definition of “claim” and fewer exemptions. Compare Iowa Code
§§ 670.1(4), .4, with §§ 669.2(3), .14.
Another significant point overlooked by the dissent is that the legislature amended
the ITCA the following year to require the State to indemnify and hold harmless state
employees when sued for federal constitutional violations while acting within the scope
of their employment. See 1975 Iowa Acts ch. 80, § 7 (now codified at Iowa Code § 669.22).
If the legislature had any notion that such employees could be sued for state
constitutional violations, why would it have not provided for that indemnification as well?
 14
the state while acting within the scope of the employee’s office
or employment.

Iowa Code § 669.2(3)(b). Wagner’s claims against Officer Spece clearly

involve alleged “wrongful act[s] or omission[s] of any employee of the state

while acting within the scope of the employee’s office or employment.” Id.

The federal district court so found in its certification order. So it would

seem that any claim against Officer Spece under the Iowa Constitution

would be literally covered by the ITCA unless it falls under the exception

for assault and battery claims. See Iowa Code §§ 669.14(4), .23.

Indeed, as observed by the federal district court in this case, there

is an on-point federal precedent holding that direct claims under the Iowa

Constitution against state employees come under the ITCA. McCabe v.

Macaulay, 551 F. Supp. 2d 771, 785 (N.D. Iowa 2007). In McCabe v.

Macaulay, a federal district court predicted (accurately, as it turned out)

that our court would recognize a direct cause of action for violations of the

Iowa Constitution. Id. However, based on the relevant language in Iowa

Code section 669.2, the court then found that the claims were covered by

the ITCA and the plaintiffs had to proceed under that statute. Id. at 786.

As the court explained,

Plaintiffs’ state constitutional claims are “claims” under
the ITCA: Troopers Bailey and Busch are state employees,
Plaintiffs seek monetary damages for personal injury caused
by the wrongful acts of Troopers Bailey and Busch and
Troopers Bailey and Busch were acting within the scope of
their employment. Therefore, Plaintiffs are required to
exhaust their remedies under the ITCA.

Id. (citation omitted).4

4Iowa Code section 669.21 confirms that constitutional tort claims against state
employees fall within section 669.2(3)(b). Section 669.21 provides that the State shall
defend and indemnify any employee against “any claim as defined in section 669.2,
subsection 3, paragraph ‘b,’ including claims arising under the Constitution, statutes, or
rules of the United States or of any state.” Iowa Code § 669.2(1) (emphasis added).
 15

One could argue that the ITCA does not govern constitutional tort

claims against the State itself, because permissible claims against the

State are limited to those that would be available against a private party.

See id. § 669.2(3)(a) (defining “claim” as involving “circumstances where

the state, if a private person, would be liable to the claimant for such

damage, loss, injury, or death”). Usually, private persons, unless acting

under color of state law, cannot commit constitutional violations. See

Prager v. Kan. Dep’t of Revenue, 20 P.3d 39, 62 (Kan. 2001) (“Kansas has

not waived its sovereign immunity under K.S.A. 75–6103(a) as it states
that ‘each governmental entity shall be liable . . . if a private person would

be liable.’ A private person is not liable for a constitutional tort and,

therefore, the Kansas Department of Revenue and its employees are not

liable and retain immunity.” (quoting Kan. Stat. Ann § 75-6103(a))); Zullo

v. State, 205 A.3d 466, 479 (Vt. 2019) (“[T]he ultimate question of whether

Trooper Hatch acted in compliance with plaintiff’s constitutional rights

turns on law enforcement responsibilities that have no private analog.”);

see also FDIC v. Meyer, 510 U.S. 471, 478, 114 S. Ct. 996, 1001 (2014)

(discussing similar language in the Federal Tort Claims Act and concluding

that “the United States simply has not rendered itself liable under

§ 1346(b) for constitutional tort claims”). By this chain of reasoning,

claims of constitutional violations against the State would not fall within

the ambit of the ITCA. This could lead to the incongruous situation where

the constitutional claim originally asserted against the employee falls

within the ITCA but the claim against the State itself does not.

At least one jurisdiction has found that similar statutory language

in its tort claims act does not prevent it from being applied to

Hence, section 669.21 acknowledges that the definition of “claim” as to employees
includes constitutional claims. Notably, the dissent disregards this point.
 16

constitutional torts. In Brown v. State, the Court of Appeals of New York

had to interpret a New York law that waived sovereign immunity “in

accordance with the same rules of law as applied to actions in the supreme

court against individuals or corporations.” 674 N.E.2d 1129, 1134 (N.Y.

1996). The State argued that this language rendered the New York law

inapplicable, because “[i]ndividuals and corporations . . . cannot be sued

for constitutional violations.” Id. at 1135. The court disagreed and found

that the jurisdictional provisions of the act applied. Id. at 1135–36. It

reasoned that the search and seizure and equal protection claims asserted
by the plaintiffs were “sufficiently similar to claims which may be asserted

by individuals and corporations in [trial court] to satisfy the statutory

requirement.” Id. at 1136.

Our only prior decision on point has followed the New York

approach. In Adam v. State, we considered whether a damages claim for

negligent licensing and inspection of a grain elevator by a state agency fell

within the ITCA. 380 N.W.2d 716, 725 (Iowa 1986) (en banc). The State

argued that it did not because private persons did not have a duty to

inspect grain elevators, only the State did. Id. at 724. We pushed back

on this line of thinking, stating:

Inspecting and licensing functions are generally thought of as
“uniquely governmental.” Where the governmental activity is
not normally performed by private individuals, the question is
whether a private individual doing what the government was
doing would be liable for negligence.

Id. (quoting Hylin v. United States, 715 F.2d 1206, 1210 (7th Cir. 1983),

vacated and remanded on other grounds, 469 U.S. 807, 105 S. Ct. 65, 83

L. Ed. 2d 16 (1985)). We found the claim did fall within the ITCA,

reasoning, “Under Iowa law private individuals would be liable for conduct
such as we have here if the statute and regulations were directed at them.”
 17

Id. By the same token, under the allegations of Wagner’s complaint, a

private individual would have been liable for her son’s death if article I,

sections 8 and 9 of the Iowa Constitution were directed at private

individuals.

In other words, Adam took the view that the ITCA applied even if the

relevant duty only attached to the government, so long as the underlying

conduct was tortious in nature and would have given rise to a tort claim

against a private party if the same duty were imposed on a private party.

By that standard, the ITCA could apply to the constitutional tort claims in
this case. The gist of Wagner’s state constitutional claims is that Officer

Spece seized Jensen with excessive force—indeed, killed him—and acted

with indifference to his life in violation of article I, sections 8 and 9.

Although a private party engaging in the same alleged conduct would not

be committing constitutional violations unless acting under color of state

law, that party would be committing several torts. “Constitutional torts

are torts.” Baldwin I, 915 N.W.2d at 281.

But there is additional language in the ITCA we must consider.

Wagner maintains that all the claims in this case fall outside the ITCA

because they involve assault, battery, or their functional equivalents. See

Iowa Code § 669.14(4) (excepting claims for assault and battery from the

ITCA).

Literally, of course, a claim under the Iowa Constitution and

common law assault and battery are two different causes of action. Iowa

Code section 669.14(4) mentions the latter but not the former. However,

some time ago this court held that the section immunized the State from

suit on a federal constitutional claim that was “the functional equivalent”
of an explicit section 669.14(4) exception. Greene v. Friend of Ct., 406

N.W.2d 433, 436 (Iowa 1987). Greene involved an individual who had been
 18

allegedly jailed without due process and then brought suit for damages.

Id. at 434. There we explained,

The latter section [now section 669.14(4)] identifies excluded
claims in terms of the type of wrong inflicted. The gravamen
of plaintiff's claim in the present case is the functional
equivalent of false arrest or false imprisonment, which are
both [now section 669.14(4)] exceptions to the Iowa Tort
Claims Act. Consequently, we agree with the position of [the
Department of Human Services] that the State has not waived
its sovereign immunity or that of its alter ego agencies with
respect to the type of claim presented in this case.

Id. at 436.

In short, we decided that section 669.14(4) also foreclosed claims

that were the functional equivalent of the identified claims. Id. We have

reiterated this point in a number of cases. See, e.g., Smith v. Iowa State

Univ. of Sci. & Tech., 851 N.W.2d 1, 20–21 (Iowa 2014) (“[W]e have made

clear that if a claim is the functional equivalent of a section

669.14 exception to the ITCA, the State has not waived its sovereign

immunity.”); Trobaugh v. Sondag, 668 N.W.2d 577, 584 (Iowa 2003)

(“[W]here ‘[t]he gravamen of plaintiff’s claim . . . is the functional

equivalent’ of the causes of action listed in Iowa Code section 669.14(4),

the claim cannot be pursued successfully against the State.” (second
alternation in original) (quoting Greene, 406 N.W.2d at 436)); Hawkeye By-

Prods., Inc. v. State, 419 N.W.2d 410, 411–12 (Iowa 1988) (en banc)

(holding that when the gravamen of plaintiffs’ claims is covered by what is

now section 669.14(4), “such claims will not lie against the sovereign”).

The Federal Tort Claims Act (FTCA) also excludes claims for

“assault” and “battery,” although it excepts “acts or omissions of

investigative or law enforcement officers of the United States Government.”
28 U.S.C. § 2680(h). Federal courts have found that this language

excludes excessive force claims if the employee involved was not an
 19

investigative or law enforcement officer. See, e.g., Stepp v. United States,

207 F.2d 909, 911 (4th Cir. 1953) (holding that a claim that arose when a

sentry shot and killed a fleeing suspect was barred by the FTCA because

“[i]t is well established that an intentional use of excessive force in making

an arrest amounts to an assault and battery”). “We have . . . been guided

by interpretations of the FTCA, which was the model for the ITCA, when

the wording of the two Acts is identical or similar.” Thomas v. Gavin, 838

N.W.2d 518, 525 (Iowa 2013); see also Smith, 851 N.W.2d at 21.

C. To Honor the Existing Legislative Framework to the Extent
Possible, ITCA Procedures Should Apply to Constitutional Tort Claims

Against the State. We assume, therefore, that the section 669.14(4)

exclusion within the ITCA precludes Wagner’s constitutional claims.

However, the legislature did not contemplate that such claims could be

brought outside the ITCA. The ITCA states, “The immunity of the state

from suit and liability is waived to the extent provided in this chapter.”

Iowa Code § 669.4(3). In other words, the State’s immunity from suit and

liability remains in effect unless the ITCA permits the claim. We have said

as much on multiple occasions. See Trobaugh, 668 N.W.2d at 584 (“[T]he

[functionally equivalent] claim cannot be pursued successfully against

the State.”); Hawkeye By-Prods., 419 N.W.2d at 412 (“[S]uch claims will

not lie against the sovereign.”).

An underlying premise behind the ITCA was that it would cover all

available tort damage claims against the State and state employees acting

within the scope of their employment. None had been allowed before.

“Prior to passage of the Iowa Tort Claims Act in 1965, the maxim that ‘the

King can do no wrong’ prevailed in Iowa. No tort action could be
maintained against the State or its agencies.” Don R. Bennett, Handling

Tort Claims and Suits Against the State of Iowa: Part I, 17 Drake L. Rev.
 20

189, 189 (1968) (footnote omitted); see also Montandon v. Hargrave Constr.

Co., 256 Iowa 1297, 1299, 130 N.W.2d 659, 660 (1964) (“[The State] is

immune from suit except where immunity is waived by statute and . . .

there is no statutory waiver or consent to jurisdiction in tort actions.”).

“[I]t must be remembered the State began from a position of

complete immunity and waived that immunity on a limited basis by

enacting the state tort claims act.” Speed v. Beurle, 251 N.W.2d 217, 219

(Iowa 1977). “Prior to enactment of [the ITCA], our courts lacked

jurisdiction over suits brought against the state or its agencies sounding
in tort.” Lloyd v. State, 251 N.W.2d 551, 555 (Iowa 1977). “The immunity

of the State is from suit rather than from liability and remains the rule

rather than the exception.” Id. “Claims which are outside the scope of the

waiver must be denied.” Gartin v. Jefferson Cnty., 281 N.W.2d 25, 26 (Iowa

Ct. App. 1979). “[Until the ITCA was enacted], tort suits could not be

brought against the state because such suits were prohibited by the

doctrine of sovereign immunity. The state may now be sued in tort only

in the manner and to the extent to which consent has been given by the

legislature.” Hansen v. State, 298 N.W.2d 263, 265 (Iowa 1980). “The

doctrine of sovereign immunity dictates that a tort claim against the state

or an employee acting within the scope of his office or employment with

the state must be brought, if at all, pursuant to [the ITCA].” Dickerson v.

Mertz, 547 N.W.2d 208, 213 (Iowa 1996). The ITCA “waives sovereign

immunity for tort claims against the State” and “provides a remedy for a

cause of action already existing which would have otherwise been without

remedy because of common law immunity.” Minor, 819 N.W.2d at 405

(quoting Engstrom v. State, 461 N.W.2d 309, 314 (Iowa 1990)). “By
enacting the ITCA, the State waived this immunity and opened itself to

suit, but it did so strictly on its terms.” Segura v. State, 889 N.W.2d 215,
 21

221 (Iowa 2017). “Simply stated, the [ITCA] sets the metes and bounds of

the State’s liability in tort.” Swanger v. State, 445 N.W.2d 344, 349 (Iowa

1989).5

In Godfrey II, we held that under certain circumstances, an

aggrieved party could bring a constitutional claim against the State even

though the legislature had not enacted a damages remedy for violation of

that constitutional provision. 898 N.W.2d at 871–72 (plurality opinion),

880 (Cady, C.J., concurring in part and dissenting in part). With our

holding in Godfrey II, we overruled sub silentio cases like Speed, which
confirmed the State’s “complete immunity,” 251 N.W.2d at 219, and

Montandon, which proclaimed the State “is immune from suit except where

immunity is waived by statute,” 256 Iowa at 1299, 130 N.W.2d at 660.

To get there, we circled back to earlier Iowa caselaw. See Godfrey II,

898 N.W.2d at 862–63 (discussing McClurg v. Brenton, 123 Iowa 368, 98

N.W. 881 (1904); Krehbiel v. Henkle, 142 Iowa 677, 121 N.W. 378 (1909);

State v. Tonn, 195 Iowa 94, 191 N.W. 530 (1923); and Girard v. Anderson,

219 Iowa 142, 257 N.W. 400 (1934)). Yet none of the cases we discussed

involved damages claims against the State or state officials. All involved

damages claims (actual or hypothetical) against local officials or private

persons. Girard, 219 Iowa at 144, 257 N.W. at 400–01 (private individual);

Tonn, 195 Iowa at 99–100, 191 N.W. at 532–33 (local officials); Krehbiel,

142 Iowa at 678–79, 121 N.W. at 379 (private individual); McClurg, 123

Iowa at 370, 98 N.W. at 882 (local official).

Godfrey II cited no Iowa precedent for a direct constitutional claim

for damages against the State or state officials. In fact, Iowa precedent

was to the contrary. In Yoerg v. Iowa Diary Commission, we upheld the

5The pre-1965 immunity extended to state officials when performing official
duties. See, e.g., Anderson v. Moon, 225 Iowa 70, 73, 279 N.W. 396, 397 (1938).
 22

dismissal of a suit for recovery of tax payments alleging violations article

I, sections 1, 6, and 9; article III, section 31; and article VII, sections 1 and

7 of the Iowa Constitution. 244 Iowa 1377, 1379, 1387, 60 N.W.2d 566,

567, 571 (1953). We decided that “the suit against the commission was

substantially against the state, which was immune therefrom.” Id. at

1387, 60 N.W.2d at 571. In Collins v. State Board of Social Welfare, which

involved a claim under article I, section 6 of the Iowa Constitution, we

acknowledged “that in the absence of specific consent by the State, it or

its agencies may not be sued in an action to obtain money from the State.”
248 Iowa 369, 372, 81 N.W.2d 4, 6 (1957). We granted relief in Collins

only after determining that the suit was simply “to require [the State’s]

officers and agents to perform their duty,” i.e., the equivalent of an

equitable proceeding. Id. at 373, 81 N.W.2d at 6.

So it is fair to say that when the ITCA was adopted in 1965, or even

when it was subsequently amended, the legislature would not have

considered it necessary to mention constitutional torts in the ITCA,

because there was no Iowa precedent allowing the State or its officials

acting within the scope of their employment to be sued in damages for a

constitutional tort. By not mentioning such suits expressly in the ITCA,

the legislature did not open the door for them to be brought in some other

fashion. The ITCA drove home this point by limiting the waiver “to the

extent provided in this [chapter].” 1965 Iowa Acts ch. 79, § 4 (now codified

at Iowa Code § 669.4(3)). The ITCA allowed the State to be sued in tort for

the first time and imposed a set of procedures for doing so. Id. We should

not disregard those legislatively prescribed procedures.

The question can be viewed as one of severability. See Iowa Code
§ 4.13 (stating that provisions and applications of legislation are intended

to be severable in the event that a particular provision or application is
 23

invalid). Again, Iowa Code section 669.4(3) waives the State’s immunity

from suit only “to the extent provided in this chapter.” Iowa Code sections

669.14(4) and 669.23 preclude claims against the State and state

employees acting within the scope of their employment for assault and

battery or their equivalent. See Trobaugh, 668 N.W.2d at 584; Hawkeye

By-Prods., 419 N.W.2d at 411–12. If we strike those limits on

constitutional tort suits, does it follow we should strike all the procedures

in the ITCA? We think not.

Alternatively, the question can be viewed as one of the appropriate
framework we should adopt for bringing constitutional torts. Should we

use the existing statutory framework for other tort claims against the

State? We think we should. For one thing, the legislature intended the

ITCA to be the mechanism for suing the State in tort whenever tort suits

were permitted. Also, not all constitutional tort causes of action fall under

an Iowa Code section 669.14 exception. Such tort claims must be brought

under the ITCA, at least when state employees are named, even without

considering issues of severability. In our view, it does not make sense to

have two different procedural pathways for constitutional tort claims, with

the potential for uncertainty in a given case as to which pathway applies.

In Godfrey II, we concluded, at least implicitly, that the ITCA did not

foreclose a direct constitutional damages claim against the State and state

employees acting in their official capacity. 898 N.W.2d at 871–72 (plurality

opinion), 880 (Cady, C.J., concurring in part and dissenting in part). The

issue before us now is whether the procedural limits of the ITCA should

nonetheless apply to such a claim. It is logical to hold that constitutional

torts, like other torts, are subject to the procedures set forth in the ITCA.
Just because the substantive barriers to liability in the ITCA do not apply,

that does not mean we should dispense with the entire ITCA. “The self-
 24

evident purpose of the [ITCA] is to provide an orderly method by which to

compensate those tortiously damaged by any officer, agent or employee of

the state as defined by the Act.” Graham v. Worthington, 259 Iowa 845,

853, 146 N.W.2d 626, 632 (1966).

In Godfrey II, the dispositive concurrence in part agreed with the

lead opinion that tort claims for damages under the Iowa Constitution

should be available even without legislative authorization. 898 N.W.2d at

880 (Cady, C.J., concurring in part and dissenting in part). Yet, it also

concluded that the legislature could provide its own remedy for the
constitutional violation in lieu of a court-devised remedy so long as it was

an “adequate remedy.” Id. at 880–81. See also Baldwin I, 915 N.W.2d at

265 (summarizing Godfrey II). The procedural components of the ITCA,

such as the requirement to present claims for adjustment and settlement

before bringing suit and the two-year statute of limitations, see Iowa Code

§§ 669.3, .5(1), .13, do not deprive a plaintiff such as Wagner of an

adequate remedy. Unlike the immunities set forth in the ITCA, these

procedural requirements don’t go to ultimate questions of liability and

damages. The legislature intended the ITCA to be the only path for suing

the State and state officials acting in their scope of employment on a tort

claim. Consistent with Godfrey II, ITCA procedures should apply to

constitutional torts.6

6The dissent urges that there is no issue of severability, rejects the ITCA
altogether, and endorses a scheme for constitutional torts entirely free-formed by this
court. To show why the dissent is incorrect, we restate our position. Until 2017, the only
recognized way to sue the State on a tort damages claim, including a constitutional tort
damages claim, was by legislative authorization. The ITCA had confirmed the general
rule of “[t]he immunity of the state from suit,” but “waived” that immunity “to the extent
provided in this chapter.” Iowa Code § 669.4(3). Prior to 2017, we had also repeatedly
recognized that claims could not be pursued against the State that were the functional
equivalent of a section 669.14(4) exclusion. See Trobaugh, 668 N.W.2d at 584; Hawkeye
By-Prods., 419 N.W.2d at 411–12; Greene, 406 N.W.2d at 436. In Godfrey II, we said in
effect those limits didn’t matter. The legislature can’t block constitutional tort claims
completely; it can only regulate them. So Iowa Code sections 669.3(3)(a) and 669.14(4),
 25

Baldwin I is also consistent with our answer to this certified

question. In Baldwin I, we shaped and refined the independent damages

claim for constitutional violations we had just recognized in Godfrey II.

The immunity question we decided was one of substantive law. It presents

no obstacle to today’s holding that ITCA procedures govern such claims.

IV. Is the Available Remedy Under the Iowa Tort Claims Act for
Excessive Force by a Law Enforcement Officer Inadequate Based on
the Unavailability of Punitive Damages? If Not, What Considerations
Should Courts Address in Determining Whether Legislative Remedies
for Excessive Force Are Adequate?

We now turn to whether punitive damages are potentially available

when a plaintiff brings a direct constitutional claim based on a state law

enforcement officer’s use of excessive force. The ITCA prohibits an award

of punitive damages against the State. See Iowa Code § 669.4(2) (providing

that “the state shall not be liable for interest prior to judgment or for

punitive damages”). Under the ITCA this bar operates regardless of how

to the extent they may block Wagner’s tort claims, are unconstitutional. But we do not
discard other statutory language regulating those claims.
Ironically, the dissent accuses us of “judicial legislation.” But it is the dissent
that wants free rein to devise procedures and remedies unimpeded by laws and precedent
actually on the books. At the same time, we doubt the dissent believes there are really
no existing limits on constitutional tort claims. For example, is there a statute of
limitations? If so, where does it come from? If not from the ITCA, then from where?
The dissent also suggests that the majority has proceeded in a manner that is
procedurally unfair to Wagner. We respectfully disagree. The certified questions speak
for themselves. The parties’ briefs on those questions are publicly available. Wagner
elected to devote only minimal briefing—slightly over one page—to the central question of
whether the ITCA applies to her constitutional tort claims. The defendants devoted fifteen
pages of briefing to that issue. The defendants’ brief concludes that “the ITCA applies to
constitutional tort actions against the state and state employees, and the ITCA’s terms
are conditions of waiver of sovereign immunity that cannot be dissevered.” Unpacking
the double negative (i.e., “cannot” and “dissevered”), this is another way of saying that
the ITCA’s terms should stay in place to the extent possible and should therefore be
applied to this case. That is essentially what we have concluded.
Finally, in a footnote, the dissent engages in some hair-splitting over the meaning
of the word “apply.” Obviously, the majority concludes that the procedural provisions of
the ITCA apply to Wagner’s constitutional tort claims and the dissent concludes they do
not. We have given reasons why they apply; the dissent disagrees with those reasons.
 26

the State became a defendant—i.e., whether the State was an original

defendant, was substituted as a defendant for a state employee, or both.

See id. § 669.5(2)(a). Thus, if a state law enforcement officer acted within

the scope of employment, the State will normally be substituted as a

defendant, and any liability thereafter can rest only with the State. See

id.; Godfrey v. State (Godfrey I), 847 N.W.2d 578, 588 (Iowa 2014); Iowa

Beta Chapter of Phi Delta Theta Fraternity v. State, 763 N.W.2d 250, 267

(Iowa 2009) (explaining that Iowa Code section 669.5(2)(a) “relieve[s] a

state employee from personal liability when the employee is acting within
the scope of his or her employment”).

We have determined in our answer to the previous question that the

ITCA governs procedural aspects of state constitutional claims against the

State. The availability of punitive damages, however, is a matter of

substantive law, so that determination does not control here.

A. Godfrey II and Baldwin II on Punitive Damages. Godfrey II

recognized that a statutory cause of action will displace a direct

constitutional claim for damages so long as the statute contains an

adequate remedy. 898 N.W.2d at 880–81 (Cady, C.J., concurring in part

and dissenting in part). Punitive damages were at the heart of this debate

in Godfrey II. The ICRA, which authorizes a damages remedy for

discrimination based on sexual orientation, does not permit punitive

damages. Id. at 881. The concurrence in part, which cast the decisive

vote, did not believe the absence of punitive damages rendered the ICRA

remedy inadequate. Id. For that reason, the concurrence in part joined

the dissent in refusing to recognize a parallel constitutional tort claim for

damages for sexual-orientation discrimination under article I, section 6.
Id.
 27

The concurrence in part made several observations about the

adequacy of remedies without punitive damages. It noted that “the

remedies provided in the ICRA are robust, even without punitive damages.”

Id. They include damages for emotional distress and attorney fees. Id.

The concurrence in part also noted that “the claimed harm [to the plaintiff

was] largely monetary in nature and [did] not involve any infringement of

physical security, privacy, bodily integrity, or the right to participate in

government, and instead [was] against the State in its capacity as an

employer.” Id. Finally, the concurrence in part added that “[i]n the
appropriate case, a remedy of punitive damages may be necessary to

vindicate a plaintiff’s constitutional rights.” Id.

Seemingly, on the question of whether punitive damages are

necessary for an adequate remedy for a constitutional violation, the

Godfrey II concurrence in part outlined a case-by-case approach rather

than a single legal standard. Id. at 880–81. But Godfrey II was not our

last word on the subject. Two years later, in Baldwin II, this court held

that punitive damages are categorically unavailable against a municipality

on a constitutional tort claim, upholding the limitation in section

670.4(1)(e) of the IMTCA. 929 N.W.2d at 698–99. Six members of the

court joined the majority opinion in Baldwin II, including one who had

been part of the plurality in Godfrey II and the author of the concurrence

in part. Only one member of the court, in a partial dissent, urged that

punitive damages should be available against a municipality in some

circumstances “to provide an adequate remedy.” Id. at 703, 715 (Appel,

J., concurring in part and dissenting in part). The partial dissent insisted

that the Baldwin II court was retreating from Godfrey II. See id. at 712–
13 (“For the majority of the Godfrey [II] court, it seems clear as a matter
 28

[of] constitutional law that punitive damages should be available in at least

some cases notwithstanding legislative action to the contrary.”).

Baldwin II thus moved away from the case-by-case approach in the

Godfrey II concurrence in part and indicated that the legislature could

determine whether punitive damages would be available on a

constitutional tort claim.

B. Determining the Proper Approach Here. With respect to

claims against the State and state employees for tortious conduct, the

legislature has clearly indicated that punitive damages should not be
available. See Iowa Code § 669.4(2). If we strictly followed Baldwin II, we

could give Iowa Code section 669.4(2) the same conclusive effect that

section 670.4(1)(e) received in Baldwin II.

Or we could use as our guidepost the earlier Godfrey II concurrence

in part. As already noted, the concurrence in part focused on the adequacy

of the remedy for the constitutional violation. See Godfrey II, 898 N.W.2d

at 880 (Cady, C.J., concurring in part and dissenting in part) (referring to

“an adequate remedy”). However, the concurrence in part did not provide

a single standard for deciding whether a remedy was adequate. One key

consideration was deterrence, i.e., whether the available remedies “suffice

as an adequate deterrent of any alleged unconstitutional conduct.” Id. at

881. Elsewhere, the concurrence in part emphasized that the Godfrey case

did not involve “physical invasion, assault, or violations of other liberty

interests.” Id. It also highlighted the availability of attorney fees under

the ICRA. Id. Still elsewhere, the concurrence in part pointed out that

“Godfrey makes no claim that an action under the ICRA will not adequately

compensate him for damages relating to the alleged unconstitutional
conduct.” Id. Compensation is not necessarily the same thing as

deterrence.
 29

For the present case, we find persuasive the following reasoning that

draws on both Baldwin II and the Godfrey II concurrence in part. The

general assembly not only has prohibited excessive force claims against

the State, it has prohibited awards of punitive damages against the State

and state employees acting within their scope of employment. Even

though we have decided that the first limit must give way to the paramount

role of the Iowa Constitution in our system of government, we are still

compelled to honor the second limit to the extent constitutionally possible.

Almost by definition, punitive damages are not remedial. They punish.
See City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 266–67, 101 S. Ct.

2748, 2759 (1981) (“Punitive damages by definition are not intended to

compensate the injured party, but rather to punish the tortfeasor whose

wrongful action was intentional or malicious, and to deter him and others

from similar extreme conduct.”).

In another context, we have held there is no “vested right” to punitive

damages prior to entry of judgment and the legislature may—in effect—

confiscate most of them from a victorious plaintiff for the benefit of the

State. Shepherd Components, Inc. v. Brice Petrides-Donohue & Assocs.,

473 N.W.2d 612, 619 (Iowa 1991) (upholding the constitutionality of Iowa

Code section 668A.1). We have also held repeatedly that punitive damages

abate on the death of the wrongdoer, noting that this does not interfere

with the plaintiff’s ability to receive “such sum as will fully compensate

him for the injury sustained.” In re Vajgrt, 801 N.W.2d 570, 573 (Iowa

2011) (quoting Sheik v. Hobson, 64 Iowa 146, 148, 19 N.W. 875, 875

(1884)). It is difficult to see, therefore, that the unavailability of punitive

damages would render a remedy inadequate in most cases. At least in an
excessive force case without other unconstitutional conduct where any
 30

actual damages will likely be significant, we are not persuaded to overturn

the bar on punitive damages imposed by the legislature.7

Again, the answer we provide today would not necessarily be the

same answer in a different kind of constitutional tort case. With other

kinds of unconstitutional conduct, such as invidious discrimination or

suppression of free speech, a traditional award of actual damages may not

correspond with the harm actually caused. For example, if the

unconstitutional conduct involved not merely excessive force but also a

discriminatory use of force in violation of article I, section 6, a broader
remedy might be appropriate.8

7Nothing herein, of course, prevents Wagner from pursuing punitive damages on
her claims under 42 U.S.C. § 1983 against Officer Spece in his individual capacity. The
dissent cites various cases for the proposition that “many excessive force cases have
awarded both actual and punitive damages.” But every one of these citations involved an
action under 42 U.S.C. § 1983, where punitive damages were awarded pursuant to a
statute enacted by Congress. None involved a direct action under a state constitution.
8A brief comment should be made on Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999 (1971), and Carlson v. Green,
446 U.S. 14, 100 S. Ct. 1468 (1980). Discussing only those two cases does not paint an
accurate picture of federal constitutional damages litigation. Carlson, decided forty years
ago, was the last time the United States Supreme Court recognized a direct damages
claim under the United States Constitution. Hernandez v. Mesa, ___, U.S. ___, ___, 140
S. Ct. 735, 743 (2020). Since 1980, the Court has “changed course,” id. at ___, 91 S. Ct.
at 741, and “consistently rebuffed requests to add to the claims allowed under Bivens,”
id. at ___, S. Ct. at 743. In an excessive force case decided this year, the Court not only
rejected a direct constitutional damages claim against the federal government, it added
that “it is doubtful that we would have reached the same result” if Bivens and Carlson
were before the Court today. Id. at ___, S. Ct. at 742–43.
Thus, in comparison with the constitutional tort remedy currently available for
federal constitutional violations, the claim we recognized in Godfrey II is robust.
In addition, the dissent to some extent conflates federal constitutional claims
against the federal government with federal constitutional claims against municipalities
and state and local officials. The latter are based on a statute. See 42 U.S.C. § 1983.
Section 1983, unlike the ITCA, does not bar punitive damages. Rather, it states that the
defendants “shall be liable to the party injured in an action at law.” Id. This has been
interpreted as authorizing an award of punitive damages against individuals (but not
governmental entities) in an appropriate case. See City of Newport, 453 U.S. at 267–68,
101 S. Ct. at 2760.
 31
V. Are the Plaintiffs’ Claims Under the Iowa Constitution
Subject to the Administrative Exhaustion Requirement in Iowa Code
Section 669.5(1)?

Yes. See the discussion in division III of this opinion.

VI. Are the Plaintiffs Required to Bring Their Iowa
Constitutional Claims in the Appropriate Iowa District Court Under
Iowa Code Section 669.4?

We begin with a point of federal law recognized by the federal district

court. The Eleventh Amendment to the United States Constitution

provides, “The Judicial power of the United States shall not be construed

to extend to any suit in law or equity, commenced or prosecuted against
one of the United States by Citizens of another State, or by Citizens or

Subjects of any Foreign State.” Although the Eleventh Amendment

literally bars only lawsuits against states by persons residing outside the

state, the United States Supreme Court has held for over a century that it

also limits the ability of citizens to sue their own state in federal court.

Hans v. Louisiana, 134 U.S. 1, 15, 10 S. Ct. 504, 507 (1890).

From this starting point, it follows that a citizen generally cannot

sue a state on a state-law claim in federal court absent the state’s consent.

See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98–99, 104

S. Ct. 900, 907 (1984). Also, Eleventh Amendment immunity may only be

“waived by consent or a voluntary appearance, by statute, or by the state’s

conduct in the suit.” Shumaker v. Iowa Dep’t of Transp., 541 N.W.2d 850,

853 (Iowa 1995). Eleventh Amendment immunity extends to state-law

claims asserted in federal court by way of supplemental jurisdiction. See

Raygor v. Regents of the Univ. of Minn., 534 U.S. 533, 541–42, 122 S. Ct.

999, 1005 (2002).

Moreover, Eleventh Amendment immunity applies to claims under
a state constitution. See Vasquez v. Rackauckas, 734 F.3d 1025, 1041
 32

(9th Cir. 2013) (finding that the Eleventh Amendment barred a claim under

the California Constitution against a state official); Spoklie v. Montana, 411

F.3d 1051, 1060 (9th Cir. 2005) (“Spoklie claims that I–143 violates his

property rights under Article II, section 3, of the Montana Constitution.

However, the Eleventh Amendment prevents him from asserting that

claim in federal court. To the extent he seeks damages from the State and

from DFWP, the Eleventh Amendment stands directly in his way.”); Mixon

v. Ohio, 193 F.3d 389, 397 (6th Cir. 1999) (“Some of Plaintiffs’ claims

against the State of Ohio here are under the Ohio Constitution and Ohio
common law. Although Ohio has statutorily waived its state sovereign

immunity against certain state court actions by consenting to state suits

in the Ohio Court of Claims, a State may

retain Eleventh Amendment immunity from suit in federal court even if it

has waived its immunity and consented to be sued in its state courts.”

(citation omitted)); Vill. of Orland Park v. Pritzker, ___ F. Supp. 3d ___, ___,

2020 WL 4430577, at *14 (N.D. Ill. Aug. 1, 2020) (holding the Eleventh

Amendment bars claims in federal court against the Governor of Illinois

under the Illinois Constitution); Support Working Animals, Inc. v. DeSantis,

457 F. Supp. 3d 1193, 1207 n.6 (N.D. Fla. 2020) (“Plaintiffs argue Florida

waived its sovereign immunity for federal suits ‘based on violations of the

state or federal constitution.’ The cases relied upon by Plaintiffs were both

filed in state court and involved sovereign immunity under state law, not

the Eleventh Amendment. . . . [T]his Court finds that Plaintiffs have not

established that Florida has waived its Eleventh Amendment immunity as

to any of the claims in this case.” (citations omitted)); Veasey v. Perry, 29

F. Supp. 3d 896, 922 (S.D. Tex. 2014) (finding no jurisdiction over claims
under the Texas Constitution because any waiver of the Eleventh

Amendment would have to be “unequivocal” and “[n]o such
 33

unequivocal consent appears here, where the State has asserted

its Eleventh Amendment rights”); Common Cause/Ga. v. Billups, 406 F.

Supp. 2d 1326, 1358 (N.D. Ga. 2005) (“[T]he Eleventh Amendment

precludes the Court from entertaining Plaintiffs’ claims asserted under

the Georgia Constitution.”); Doe v. Div. of Youth & Fam. Servs., 148

F. Supp. 2d 462, 492 (D.N.J. 2001) (dismissing claims based on the

Eleventh Amendment and concluding that “[t]he plaintiffs have not

identified any provision of state law where New Jersey has expressly

consented to suit in federal court under . . . the New Jersey Constitution”).
Additionally, we find no indication that the State of Iowa has

generally waived its Eleventh Amendment immunity from suit in federal

court as to direct constitutional claims. No such language appears in the

Iowa Constitution or the Iowa Code. And our precedents do not support

such a waiver. Godfrey II didn’t address the issue. “[A] State’s consent to

suit in its own courts is not a waiver of its immunity from suit in federal

court.” Sossamon v. Texas, 563 U.S. 277, 285, 131 S. Ct. 1651, 1658

(2011). While Godfrey II emphasized the importance of an adequate

remedy for violations of the Iowa Constitution, Godfrey II, 898 N.W.2d at

880–81 (Cady, C.J., concurring in part and dissenting in part), nothing in

Godfrey II or any of our subsequent opinions on direct constitutional

claims for damages suggests that federal court access is the key to an

adequate remedy. Godfrey II was a state court proceeding, and we found

the remedies recognized therein to be adequate.9

9Of course, a state may waive its Eleventh Amendment immunity by its conduct
in a particular case, for example by removing the case from state to federal court.
See Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613, 624, 122 S. Ct. 1640,
1646 (2002). The present action was originally brought by Wagner in federal court, not
removed there by the defendants. Wagner insists it is improper for the State to remove
“select” cases arising under the Iowa Constitution to federal court, while it forces other
such cases into state court by asserting Eleventh Amendment immunity. Wagner cites
no authority for the proposition that selective assertion of Eleventh Amendment immunity
 34

Furthermore, as the federal district court noted, Iowa courts—as

opposed to federal courts—have exclusive statutory jurisdiction over

claims under the ITCA absent a waiver in a specific case. Iowa Code

section 669.4(1) provides,

The district court of the state of Iowa for the district in which
the plaintiff is resident or in which the act or omission
complained of occurred, or where the act or omission occurred
outside of Iowa and the plaintiff is a nonresident, the Polk
county district court has exclusive jurisdiction to hear,
determine, and render judgment on any suit or claim as
defined in this chapter.

Far from being a consent to federal court jurisdiction, section 669.4(1)’s

reference to “exclusive jurisdiction” is a command that such suits be

brought only in state court. “We construe section 25A.4 [the predecessor

of section 669.4] to give Iowa district courts (as distinguished from federal

courts) exclusive jurisdiction over state tort claims.” Hyde v. Buckalew,

393 N.W.2d 800, 802 (Iowa 1986); see also Teska v. Rasmussen, 40 Fed.

App’x 332, 334 (8th Cir. 2002) (per curiam) (“Iowa has waived Eleventh

Amendment immunity for tort claims filed in state court, but has not

consented to tort claims filed in federal court.”); Jacobsen v. Dep’t of

Transp., 332 F. Supp. 2d 1217, 1230 (N.D. Iowa 2004) (“Absent reference
to either Eleventh Amendment immunity or suit in federal court, the court

cannot find that § 669.4 provides an express waiver of Eleventh

Amendment immunity to suits against the state in federal court.”); Tinius

v. Carroll Cnty. Sheriff Dep’t, 255 F. Supp. 2d 971, 985 (N.D. Iowa 2003)

(“The Iowa State Tort Claims Act provides that Iowa state district courts

have exclusive jurisdiction to determine any suit or tort claim under that

is impermissible. Regardless, waiver or consent to federal jurisdiction in a particular case
is a question of federal law as to which we do not opine. Our point is simply that our
judicial recognition of a direct damages claim under the Iowa Constitution in Godfrey II
does not imply or include a waiver or consent to suit in federal court, even assuming our
court had the power to grant such a waiver or consent.
 35

act. Absent reference to either Eleventh Amendment immunity or suit

in federal court, the court cannot find that § 669.4 provides an express

waiver of Eleventh Amendment immunity to suits against the state in

federal court.”).

Having determined earlier in this opinion that the procedural

aspects of the ITCA apply to constitutional tort claims, it naturally follows

that section 669.4(1) would apply as well. For these reasons, to the extent

the issue is one of Iowa law and not federal law, we hold that direct claims

for damages under the Iowa Constitution may be pursued only in the Iowa
courts absent the State’s consent or waiver in a specific case.

We summarize our answers to the certified questions as follows.

First, an injured party bringing a constitutional tort claim for

damages under the Iowa Constitution against the State or a state employee

must proceed within the procedural framework of the ITCA. This includes

the exhaustion of administrative remedies required by Iowa Code sections

669.3 and 669.5(1) as well as the certification process set forth in section

669.5(2). In fact, those steps were followed in Godfrey. See Godfrey I, 847

N.W.2d at 581; id. at 591 (Mansfield, J., dissenting). If the State employee

was acting within the scope of the employee’s office or employment, the

State will be substituted as a defendant. See Iowa Code § 669.5(2);

Godfrey I, 847 N.W.2d at 587 (majority opinion).

Second, because the ITCA governs, the constitutional tort claim will

normally go forward only against the State unless the state employee was

not acting within the scope of their office or employment. This means that

Eleventh Amendment immunity will likely bar the claim from being

pursued in federal court unless the state employee was not acting within
the scope of their employment or the State waives Eleventh Amendment

immunity (and Iowa Code section 669.4(1)).
 36

Third, in an excessive force case based only on article I, sections 8

and 9, implementing the ITCA’s exclusion of punitive damages does not

deprive the plaintiff of an adequate remedy and honors legislative purpose.

We conclude with a final observation. In briefing and at oral

argument, Wagner’s counsel expressed concern about bifurcated

proceedings. In this case, the federal claims under the United States

Constitution and 42 U.S.C. § 1983 will continue to go forward in federal

court, but her state claims can only be pursued in state court. However,

that result was by no means inevitable; in fact, it can be easily avoided.
All the plaintiff has to do is to bring her federal claims and her Godfrey

claims (after exhausting the administrative process) in state court. If the

defendants do not remove, the entire case remains in state court. If the

defendants remove the litigation to federal court, they will be deemed to

have waived their right to defend the Godfrey claims in a state forum and

all the claims will go forward in federal court.

VII. Conclusion.

We have provided answers to the certified questions as set forth

above. Costs shall be divided equally among the parties. Iowa Code

§ 684A.

CERTIFIED QUESTIONS ANSWERED.

All justices concur except Appel, J., who dissents.
 37

#19–1278, Wagner v. State

APPEL, Justice (dissenting).

I respectfully dissent.

At the outset, I do not believe a direct constitutional cause of action

under the Iowa Constitution is subject to the Iowa Tort Claims Act (ITCA),

Iowa Code chapter 669. A careful reading of the statute demonstrates that

direct constitutional claims involving excessive force are not covered by

the ITCA even assuming that such causes of action are within the

definition of “claim” in the ITCA. While the gateway into chapter 669 is
established by the definition of “claim” in Iowa Code section 669.2(3)

(2019), an exit ramp appears in section 669.14. Iowa Code section

669.14(4) provides that “[t]he provisions of this chapter shall not apply,

with respect to any claim against the state . . . arising out of assault, [or]

battery.” So, even if the constitutional claims in this case are brought in

through the gateway definition of “claim” in Iowa Code section 669.2(3),

they slide right out on the exit ramp of the chapter provided in section

669.14.

The majority seeks to prevent the plaintiffs’ use of the exit ramp

created by the legislature by seeking to sever it from the statute. But

courts only sever unlawful provisions of a statute. There is nothing

unlawful about writing a statute with a broad gateway and a later exit

ramp. In the exit ramp of the ITCA, the legislature has simply declared

that regardless of how broad and all-encompassing the definition of “claim”

might be, the legislature has expressly decided that claims involving

assault and battery are taken right out of the chapter.

In any event, even if the exclusion of assault and battery from the
scope of the statute is somehow illegal or can somehow be avoided by

judicial fiat, there is a further problem with the majority’s severance
 38

theory. The legislature has expressly declared, in clear and unambiguous

terms, that claims involving assault and battery are not within the scope

of chapter 669. While the doctrine of severance is a tool that can be used

to save otherwise lawful provisions of a statute by removing an invalid

section, the doctrine of severance cannot be used to expand the scope of a

statute in defiance of an express limitation approved by the legislature. The

doctrine of severance simply cannot be used by the judiciary to remove a

provision of a statute that has the effect of expanding the scope of the

statute in a fashion that the legislature expressly prohibited.
In the alternative to its severance theory, the majority declares that

constitutional torts should be subject to the limitations in the ITCA regime

even if the plaintiffs’ claim is not within the scope of the statute. We have

never created such judicially imposed limitations on common law claims,

and I would not adopt them in the context of direct constitutional causes

of action.

Finally, the declaration that punitive damages are not required to

provide an adequate remedy for excessive force claims under the Iowa

Constitution where there is a likelihood of “substantial” actual damages,

unless there is a second constitutional violation, cannot go by

unchallenged. To take punitive damages off the table in any well pled

excessive force case under the Iowa Constitution at the pleading stage as

a matter of law is an error with serious potential consequences in this and

future cases.

I. Introduction.

The premier provision of the Iowa Constitution is article I, the Iowa

Bill of Rights. It was deliberately placed in the first substantive article for
a reason. It is a basic statement of rights possessed by the people of Iowa
 39

that could not be abridged by the government established by subsequent

articles of the constitution.

The Iowa Bill of Rights is not a mere “glittering generality.” It is

constitutional bedrock. As noted by one state supreme court with respect

to a search and seizure provision similar to article I, section 8 of the Iowa

Constitution,

It insulates us from dictatorial and tryannical [sic] rule by the
state, and preserves the concept of democracy that assures
the freedom of its citizens. This concept is second to none in
its importance in delineating the dignity of the individual
living in a free society.

Commonwealth v. Miller, 518 A.2d 1187, 1192 (Pa. 1986).

The Iowa Bill of Rights draws its authority from the people of Iowa

who ratified the Iowa Constitution. It is not a creation of the legislature

and is not subject to alteration by it. Not only does the legislature not have

the power to amend the rights provided there, it cannot strangle them,

directly or indirectly. And it is the prime and essential constitutional role

of the Supreme Court of Iowa to ensure that the provisions of the Iowa Bill

of Rights flourish, are recognized by all branches of government, and are

effectively enforced. In particular, we must be vigilant against

encroachments seeking to minimize their scope, undercut their
foundation, impose procedural roadblocks, or otherwise diminish them.

And so, we have rightly held that the provisions of the Iowa

Constitution provide Iowans with a direct, self-executing cause of action

for their enforcement. Godfrey v. State (Godfrey II), 898 N.W.2d 844, 871–

72 (Iowa 2017).10 Legislative action is not required for enforcement of

10At least fourteen states have recognized direct causes of action under their state
constitutional provisions that are self-executing and require no legislative action for their
enforcement. See, e.g., Gay L. Students Ass’n v. Pac. Tel. & Tel. Co., 595 P.2d 592, 602
(Cal. 1979); Laguna Publ’g Co. v. Golden Rain Found. of Laguna Hills, 131 Cal. Rptr. 813,
851–54 (Ct. App. 1982); Binette v. Sabo, 710 A.2d 688, 693 (Conn. 1998); Newell v. City
 40

direct constitutional claims under the Iowa Constitution. Were legislative

action required, effective enforcement of the Iowa Bill of Rights would be

left up to the legislature.11 Article V of the Iowa Constitution would be

catapulted to become de facto article I, and the Iowa Bill of Rights would

be a nothing more than a suggestion, a pretty please, that the legislature

could simply decline to enforce. The Iowa Constitution would be one of

legislative supremacy, which was distinctly not the intention of the

Jacksonian framers and ratifiers of the Iowa Constitution.12

The view of the framers that the bill of rights was the most important
part of the Iowa Constitution was not some romantic notion. It was rooted

in a rugged individualism that respected government but insisted that it

be confined within established boundaries. And there were historical

antecedents.

of Elgin, 340 N.E.2d 344, 349 (Ill. App. Ct. 1976); Moresi v. State, 567 So. 2d 1081, 1092–
93 (La. 1990); Manikhi v. Mass Transit Admin., 758 A.2d 95, 110–11 (Md. 2000); Widgeon
v. E. Shore Hosp. Ctr., 479 A.2d 921, 925–28 (Md. 1984); Phillips v. Youth Dev. Program,
Inc., 459 N.E.2d 453, 457–58 (Mass. 1983); Johnson v. Wayne Cnty., 540 N.W.2d 66, 69–
70 (Mich. Ct. App. 1995); Mayes v. Till, 266 So. 2d 578, 580–81 (Miss. 1972); Dorwart v.
Caraway, 58 P.3d 128, 135–37 (Mont. 2002); Jackson v. Consol. Rail Corp., 538 A.2d
1310, 1319–20 (N.J. Super. Ct. App. Div. 1988); Strauss v. State, 330 A.2d 646, 648–50
(N.J. Super. Ct. Law Div. 1974); Brown v. State, 674 N.E.2d 1129, 1143–44 (N.Y. 1996);
Corum v. Univ. of N.C., 413 S.E.2d 276, 290 (N.C. 1992); Jones v. Mem’l Hosp. Sys., 746
S.W.2d 891, 893–94 (Tex. App. 1988); Zullo v. State, 205 A.3d 466, 482 (Vt. 2019); Old
Tuckaway Assocs. Ltd. P’ship v. City of Greenfield, 509 N.W.2d 323, 328 n.4 (Wis. Ct.
App. 1993).
11As noted by one scholar commenting on Justice Harlan’s concurrence in Bivens
v. Six Unknown Named Agents of Federal Bureau of Narcotics, “To depend on the majority
to enact enabling legislation, when the Bill of Rights was specifically designed to limit
majority rule, is counterintuitive.” Rosalie Berger Levinson, Recognizing a Damage
Remedy to Enforce Indiana’s Bill of Rights, 40 Val. U. L. Rev. 1, 27 (2005) (citing Bivens v.
Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 407, 91 S. Ct.
1999, 2010 (1971) (Harlan, J., concurring)).
12See Godfrey II, 898 N.W.2d at 865 (noting the Iowa constitution of 1857 tended

to limit the power of the legislature while it protected the independence of the court); State
v. Ochoa, 792 N.W.2d 260, 274–75 (Iowa 2010) (discussing the politics of the Jacksonian
era and the importance the framers of the Iowa Constitution put on the bill of rights).
 41

One of the most famous incidents, well known throughout the

founding period of our country but forgotten in some quarters, were the

1763 cases arising out of the publication of a scurrilous publication that

appeared in a London magazine making fun of the King and the King’s

agent. Lord Halifax was not amused. He sent agents to ransack through

dozens of houses and places, looking for evidence of who might be the

author, and he seized a number of individuals. The dragnet was, of course,

a first-class outrage.

One of the persons targeted by Lord Halifax was John Wilkes, a
dashing and iconoclastic member of Parliament. In choosing to target

Wilkes, Lord Halifax chose poorly. Wilkes promptly filed an action alleging

that Lord Halifax’s agent had engaged in an unlawful search and seizure

under an unlawful general warrant. Lord Pratt, in his instructions to the

jury, stated that the official had acted “ ‘contrary to the fundamental

principles of the constitution’ and stated that the jury could consider the

illegal conduct in assessing damages.” Widgeon v. E. Shore Hosp. Ctr., 479

A.2d 921, 924 (Md. 1984) (footnote omitted) (citation omitted) (quoting

Wilkes v. Wood (1763) 98 Eng. Rep. 489). And the jury did just that and

awarded Wilkes 1000 pounds, far more than any actual damages. Wilkes,

98 Eng. Rep. at 499. According to Lord Pratt,

[A] jury have it in their power to give damages for more than
the injury received. Damages are designed not only as a
satisfaction to the injured person, but likewise as a
punishment to the guilty, to deter from any such proceeding
for the future, and as a proof of the detestation of the jury to
the action itself.

Id. at 498–99.

In a related case, Huckle v. Money, “the plaintiff was awarded
exemplary damages after the King’s messengers placed him in custody

based on an unlawful general warrant.” Widgeon, 479 A.2d at 924 (citing
 42

Huckle v. Money (1763) 95 Eng. Rep. 768). Lord Pratt concluded “that the

Secretary of State, who granted the unlawful warrant, had acted

[arbitrarily] in violation of the Magna Carta.” Id. After the jury verdict,

Lord Pratt declared:

[T]he personal injury done to . . . [the plaintiff] was very small,
so that if the jury had been confined by their oath to consider
the mere personal injury only, perhaps 20l. damages would
have been thought damages sufficient; but the small injury
done to the plaintiff, or the inconsiderableness of his station
and rank in life did not appear to the jury in that striking light,
in which the great point of law touching the liberty of the
subject appeared to them at the trial; they saw a magistrate
over all the King’s subjects, exercising arbitrary power,
violating Magna Charta, and attempting to destroy the liberty
of the kingdom, by insisting upon the legality of this general
warrant before them . . . I think they have done right in giving
exemplary damages; to enter a man’s house by virtue of a
nameless warrant, in order to procure evidence, is worse than
the Spanish inquisition.

Id. (alterations in original) (quoting Huckle, 95 Eng. Rep. at 768–69).

As noted by one scholar, “[T]he availability of exemplary damages in

cases such as Wilkes and Huckle played a significant role in establishing

the salutary principle that no one, no matter how powerful, was above the

law.” Michael L. Rustad, Happy No More: Federalism Derailed by the Court

That Would Be King of Punitive Damages, 64 Md. L. Rev. 461, 470 (2005).

There were a number of other cases arising from the incident that

reinforced the notion that constitutional norms could not be violated with

impunity. Though forgotten by some today, Wilkes himself and the cases

arising out of the affair were widely known and celebrated in America and

must have been known to the Iowa constitutional framers. See State v.

Ochoa, 792 N.W.2d 260, 269–73 (Iowa 2010).

So I approach this case in the spirit of the Wilkes cases, Lord Pratt,
and the Iowa founders. By that, I view it as essential for this court to

ensure that that there are robust remedies for violation of any right
 43

established by the Iowa Bill of Rights. This is not a new undertaking.

“[T]he judicial obligation to protect the fundamental rights of individuals

is as old as this country.” Peper v. Princeton Univ. Bd. of Trs., 389 A.2d

465, 476 (N.J. 1978) (quoting King v. S. Jersey Nat’l Bank, 330 A.2d 1, 10

(1974)).

II. Overview of Direct Constitutional Torts Under the Iowa
Constitution.

A. Introduction. At the outset, it is important to understand the

nature of direct constitutional causes of action under the Iowa

Constitution. They are distinctly different from other ordinary tort claims

against the government in two critical ways. First, constitutional claims

are rooted in the core document approved by the people and are thus not

subject to legislative alteration. Second, constitutional claims serve a

different purpose than an ordinary tort claim. While an ordinary tort suit

seeks to allocate resources, a constitutional claim is designed to curb and

restrain government conduct as required by our basic governance

document, the Iowa Constitution. A direct constitutional claim has a

different pedigree but also serves different goals than a common law tort.

B. Constitutional Pedigree. The fact that constitutional causes of

action arise from the constitution itself is of critical importance. The
constitutional causes of action are not a product of legislative action. They

arise from the action of the people in approving a framework of government

with a strong bill of rights as its first article. And the constitutional

commands cannot be overridden by the legislature. As noted more than a

hundred years ago, “The people are sovereign, and speak through their

Constitution, and, when they thus speak, its mandates are binding upon
all people, and on the Legislature, which is but one of the agencies of

government.” C.C. Taft Co. v. Alber, 185 Iowa 1069, 1073, 171 N.W. 719,
 44

720 (1919). The majority emphasizes the need to honor the legislature,

but the people in enacting the Iowa Constitution have established

immutable provisions that the legislature may not invade or diminish.

Green v. City of Mt. Pleasant, 256 Iowa 1184, 1204, 131 N.W.2d 5, 18

(1964) (“The provisions of the Constitution are mandatory and as binding

on the legislative branch of the government as on the citizens.”)

The constitutionally established rights contained in article I of the

Iowa Constitution, and approved by the people as sovereign, are

meaningless if not effectively enforced, and in my view, the Iowa
Constitution thus requires robust remedies to ensure effective

enforcement. The majority is determined to honor the legislature, but in

this case, the focus should be on honoring the Iowa Constitution and

ensuring its effective enforcement through a robust direct constitutional

action.

There are three remedies that must be available for effective

enforcement. First, the Iowa Bill of Rights must form an effective shield

against government action. Ordinarily, this shield function is served

through application of the exclusionary rule in a criminal proceeding.

Second, the Iowa Bill of Rights must, where there is an ongoing violation,

provide the basis for injunctive relief. Finally, the Iowa Bill of Rights must

form the basis of an action for compensatory damages and, where

appropriate, punitive damages. All three of the legs of the remedial stool

are essential for a comprehensive remedial plan to enable the judiciary to

defend against invasions of rights with a “full arsenal” of judicial remedies.

Dorwart v. Caraway, 58 P.3d 128, 141 (Mont. 2002).

That said, I do agree that the legislature may establish a remedial
structure for consideration of constitutional causes of action. Such a

structure, however, must provide for adequate remedies not just to
 45

compensate the victim but also to vindicate the public’s interest in

constitutional enforcement. The legislature does not have the power to

provide a narrow, tight-fisted, cramped remedial channel for constitutional

claims. An adequate channel must be reasonably generous, and most

importantly, ensure that not only is the victim compensated but also

adequately address the public interest in the enforcement of constitutional

provisions to ensure that government actors act within the law. And, as

we have said even in the context of a tort action, “illegal or improper acts

ought to be deterred by the exaction from the defendant of sums over and
above the actual damage he has caused.” Syester v. Banta, 257 Iowa 613,

629, 133 N.W.2d 666, 676 (1965) (quoting Amos v. Prom, Inc., 115 F. Supp.

127, 137 (N.D. Iowa (1953))).

C. Constitutional Goals of Modeling and Achieving Government

Restraint. A direct constitutional claim is not an ordinary tort, but is a

very special cause of action. Unlike an ordinary common law tort claim,

compensation or adjustment of losses is often not the primary goal of a

constitutional claim. Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics itself noted that “[t]he interests protected by state laws

regulating trespass and the invasion of privacy, and those protected by the

Fourth Amendment’s guarantee against unreasonable searches and

seizures, may be inconsistent or even hostile.” 403 U.S. 388, 394, 91

S. Ct. 1999, 2003 (1971). In rejecting the defendant’s claim that the

plaintiffs asserting a direct cause of action under the Fourth Amendment

should pursue claims under state tort law, the Bivens Court responded,

Respondents seek to treat the relationship between a citizen
and a federal agent unconstitutionally exercising his authority
as no different from the relationship between two private
citizens. In so doing, they ignore the fact that power, once
granted, does not disappear like a magic gift when it is
wrongfully used. An agent acting—albeit unconstitutionally—
 46
in the name of the United States possesses a far greater
capacity for harm than an individual trespasser exercising no
authority other than his own. Accordingly, as our cases make
clear, the Fourth Amendment operates as a limitation upon
the exercise of federal power regardless of whether the State
in whose jurisdiction that power is exercised would prohibit
or penalize the identical act if engaged in by a private citizen.

Id. at 391–92, 91 S. Ct. at 2002 (citations omitted).

The Bivens distinction between common law torts and direct

constitutional claims has been recognized in state cases involving direct

claims under state constitutions.13 As noted in Brown v. State, the

plaintiff’s right to recover for constitutional torts is not dependent upon

availability of common law tort actions that “are heavily influenced by

overriding concerns of adjusting losses and allocating risks, matters that

have little relevance when constitutional rights are at stake.” 674 N.E.2d

1129, 1140–41 (N.Y. 1996); see also Binette v. Sabo, 710 A.2d 688, 699

(Conn. 1998) (“[There is an] important distinction between the tortious

misconduct of one private citizen toward another, on the one hand, and

the violation of a citizen’s constitutional rights by a police officer, on the

other.”); Moresi v. State, 567 So. 2d 1081, 1093 (La. 1990) (“The injuries

inflicted by officials acting under color of law are substantially different in

kind than those inflicted by private parties.”); Clea v. Mayor of Baltimore,
541 A.2d 1303, 1314 (Md. 1988) (“[T]here are sound reasons to distinguish

actions to remedy constitutional violations from ordinary tort suits. The

purpose of a negligence or other ordinary tort action is not specifically to

protect individuals against government officials or to restrain government

officials. The purpose of these actions is to protect one individual against

another individual . . . . On the other hand, constitutional provisions . . .

are specifically designed to protect citizens against certain types of

13See cases cited in note 1.
 47

unlawful acts by government officials.”); Widgeon, 479 A.2d at 925 (“It is

not the breaking of his doors, and rummaging of drawers, that constitutes

the essence of the offense; but it is the invasion of his indefeasible right of

personal security, personal liberty, and private property, where that right

has never been forfeited by his conviction of some public offense.”

(emphasis omitted) (quoting Boyd v. United States, 116 U.S. 616, 630, 6 S.

Ct. 524, 532 (1886))); Dorwart, 58 P.3d at 137 (“Common law causes of

action intended to regulate relationships among and between individuals

are not adequate to redress the type of damage caused by the invasion of
constitutional rights.”).14

For example, a case involving pointless and even malicious strip

searches of female inmates charged with misdemeanors at a jail by

government authorities does not simply cry out for compensation of

victims but demands an expression of community outrage and a measure

of deterrence that can only be supplied by punitive damages. See generally

Ciraola v. City of New York, 216 F.3d 236 (2d Cir. 2000) (reversing a district

court award for punitive damages against a municipality but

demonstrating the type of malicious strip search case where punitive

damages should be available). Similarly, in many search and seizure

cases, the main goal, as in the case of John Wilkes and other

contemporaries, is not compensatory damages but rather reinforcement of

the principle that government is not above the law and that the excesses

of government will be dealt with in a fashion that deters future

14Asnoted by one scholar, “It is dangerous to define constitutional claims as a
narrow subset of tort law because tort law has been particularly ineffective in dealing
with precisely the sorts of interests and injuries that are at the center of constitutional
law.” Christina Brooks Whitman, Emphasizing the Constitutional in Constitutional Torts,
72 Chi.-Kent L. Rev. 661, 686 (1997).
 48

misconduct. Recall Lord Pratt stating this “is worse than the Spanish

inquisition.” Huckle, 95 Eng. Rep. at 769.

Similarly, excessive force cases may involve large or small

compensatory loss, but these cases involve much more than economic

adjustment. Excessive force violations sufficient to give rise to direct

constitutional violations15 have dramatic public implications and involve

examination of the role of police in its interactions with citizens and the

confidence members of the community have—all members, that is—in law

enforcement and government authorities. Brutal beatings or excessive
force cases such as Rodney King, George Floyd, and Breonna Taylor are

not just private matters to be adjusted through the transfer of funds to the

victim. Does the case involve systemic blue on black violence, a mere one-

off not likely to be repeated, or a reasonable effort by law enforcement in a

difficult situation to protect the public? These questions are very public

matters that involve important questions about the role of government,

what government conduct is permissible, and how government conduct

may be restrained and directed into legal channels. Excessive force cases

involve not simply an allocation of loss, but a public “framing” of the

transaction. Daryl J. Levinson, Framing Transactions in Constitutional

Law, 111 Yale L.J. 1311, 1313–14 (2002).

D. Doctrine of Sovereign Immunity Does Not Apply to

Constitutional Causes of Action. The above differences logically lead to

the conclusion that the doctrine of sovereign immunity does not apply to

constitutional causes of action. If it did, the legislature would have the

power to abolish all monetary claims for constitutional torts by simply

15See Tennessee v. Garner, 471 U.S. 1, 7, 105 S. Ct. 1694, 1699 (1985) (stating
that the use of deadly force may give rise to a constitutional violation under the Fourth
Amendment).
 49

declaring that it declines to waive sovereign immunity. In my view, the

doctrine of sovereign immunity may apply to ordinary tort claims, where

third parties seek recovery for statutory and common law claims that the

legislature has the ability to create or destroy, but it does not apply to

constitutional claims brought directly under the Iowa Constitution.

The nonapplicability of sovereign immunity to direct constitutional

claims was well described by the North Carolina Supreme Court in Corum

v. University of North Carolina. 413 S.E.2d 276, 291–93 (N.C. 1992).

According to the Corum court,

It would indeed be a fanciful gesture to say on the one hand
that citizens have constitutional individual civil rights that are
protected from encroachment actions by the State, while on
the other hand saying that individuals whose constitutional
rights have been violated by the State cannot sue because of
the doctrine of sovereign immunity.

Id. at 291.

And, as noted by another appellate court: “Constitutional rights

serve to restrict government conduct. These rights would never serve this

purpose if the state could use governmental immunity to avoid

constitutional restrictions.” Burdette v. State, 421 N.W.2d 185, 187 (Mich.

Ct. App. 1988); see also Smith v. Dep’t of Pub. Health, 410 N.W.2d 749,

793–94 (Mich. 1987) (Boyle, J., concurring in part and dissenting in part)

(stating sovereign immunity “lose[s] its vitality when faced with

unconstitutional acts of the state”); Colman v. Utah State Land Bd., 795

P.2d 622, 630–35 (Utah 1990) (holding government immunity does not

apply where claimant alleges State or state employee violated

constitutional rights); T. Hunter Jefferson, Constitutional Wrongs and

Common Law Principles: The Case for the Recognition of State Constitutional
Tort Actions Against State Governments, 50 Vand. L. Rev. 1525, 1543
 50

(1997) (“Sovereign immunity must give way in the face of a constitutional

tort claim.”).

The bottom line is that the direct constitutional claim brought by

plaintiffs in this case is not dependent upon a legislative waiver of

sovereign immunity or a legislatively enacted remedial scheme. To the

extent the majority implies otherwise, it is plainly incorrect.

E. Individual Liability for Constitutional Claims. All the folderol

about “persons” and “official capacity” and “individual capacity” in cases

brought under 42 U.S.C. § 1983 introduce statutory distinctions of no
relevance in a direct constitutional tort. In Iowa, persons acting under

color of law who deprive individuals of constitutional rights may be sued

individually. The State may be liable for the acts of its officer, employee,

or agent based upon the doctrine of respondeat superior. That is it. See

Ritchie v. Donnelly, 597 A.2d 432, 446–47 (Md. 1991); Clea, 541 A.2d at

1312. There is no need to engage in the hair-splitting under 42 U.S.C.

§ 1983, where the distinction between official capacity suits and individual

actions has been developed as a strategy to assess liability to the

government even though the statute is limited to persons. In a direct

constitutional claim, government officials are liable for actions they have

taken under color of law, and the State may be liable under a respondeat

superior theory.

III. The Iowa Tort Claims Act Does Not Cover Direct Iowa
Constitutional Causes of Action Based on Assault and Battery.

The ITCA defines the term “claim” in Iowa Code section 669.2(3).

While section 669.2(3) may be a gateway into the ITCA, there is an exit

ramp in section 699.14. Iowa Code section 669.14(4) states that “[t]he
provisions of this chapter shall not apply, with respect to any claim against

the state, [for] . . . assault, [or] battery.” Thus, while the direct
 51

constitutional cause of action for excessive force might arguably come in

the gateway of Iowa Code section 669.2(3) as a claim, it leaves the chapter

through the exit ramp established by section 669.14(4). The claim is

simply not within the scope of the chapter.16 For those dedicated to textual

interpretation, this should be the end of the matter. Doe v. State, 943

N.W.2d 608, 610 (Iowa 2020) (advocating textual approach to statutory

interpretation).

Further, as the majority recognizes, any legislative regulation of

direct Iowa constitutional claims must provide an adequate remedy for
constitutional violations. The language of the ITCA does not do so in this

case, as it contains a provision expressly excluding assault and battery

from its scope. See Iowa Code § 669.14(4). If somehow the plaintiffs’ direct

constitutional claim passed through the gateway of Iowa Code section

669.2(3) but did not escape through the exit of section 669.14, the majority

apparently reasons there would be a problem, and therefore, it seeks to

sever the exit provision and hold the plaintiffs’ claim as a hostage in the

ITCA—eliminating the possibility of punitive damages from the claim.

But there is absolutely nothing illegal, on its face or as applied,

about the exit provision of Iowa Code section 669.14(4) that the majority

miraculously seeks to sever. The legislature utilized a broad gateway and

then excluded a series of defined claims. There is nothing unlawful with

that at all. The majority seeks to sever a highly unfavorable, and indeed

dispositive, provision that, if honored, would remove the plaintiffs’ claim

from the ITCA. But the provision is perfectly lawful. There is no

16Nothing in Iowa Code section 669.21(1) is to the contrary. This section provides
for indemnification of employees for claims “including claims arising under the
Constitution . . . of any state.” Id. But Iowa Code section 669.14(4) states that “[t]he
provisions of this chapter shall not apply” to assault or battery. Therefore, Iowa Code
section 669.21(1), as a provision of “this chapter,” has no applicability to claims of assault
and battery.
 52

requirement that direct constitutional claims of excessive force be

considered in the ITCA or not at all. Direct constitutional claims are self-

executing.

The legislature has expressly declared that “[t]he provisions of this

chapter shall not apply” to assault and battery. Iowa Code § 669.14(4).

Through its attempt to sever the assault and battery exclusion, the

majority amends the statute to include a claim that the legislature lawfully

chose to expressly exclude.

Even the State does not try that! Instead, the State leaves the ITCA
as it finds it and argues, among other things, that the plaintiffs may not

bring their direct constitutional claims without an express waiver of

sovereign immunity. But the State declines to invite this court to sever

valid provisions of the ITCA. As a result, there is a question of whether

the severance issue is properly preserved. See Am. Meat Inst. v. Pridgeon,

724 F.2d 45, 47 (6th Cir. 1984) (waiving on appeal the issue of severability

of state law that was raised for the first time in a motion for

reconsideration). This is particularly problematic, as the plaintiffs did not

have an opportunity to brief the severance issue that has been imported

into the case by the majority to achieve its desired result.

In any event, the severance doctrine has no application in this case.

Severance is a tuck and trim operation, designed to eliminate offensive

constitutional provisions and save the remainder from the

unconstitutional taint. Clark v. Miller, 503 N.W.2d 422, 425 (Iowa 1993)

(“We have an obligation to preserve as much of a statute as possible within

constitutional restraints. We declare unconstitutional only that portion of

the statutory section that violates constitutional provisions.” (citation
omitted)). In this case, severance is used not to cut and trim a cancerous

provision but instead is used to extend the scope of the statute beyond the
 53

express limitations of the legislature. This is an act the court simply

cannot do.

The above principles were on display in State v. Inland Empire

Refineries, Inc., 101 P.2d 975, 982 (Wash. 1940) (en banc). In Inland

Empire, the Supreme Court of Washington determined that certain

exemptions from taxation were unconstitutional. Id. at 979. The question

was whether the court could simply sever the exemptions from the statute.

Id. at 981. According to the Supreme Court of Washington, such excision

of exemptions

would involve a complete reconstruction, indeed a re-creation,
of the act, and would result in imputing to the Legislature an
intention which the present wording of the act does not
sustain. Such a process indulged in would not be judicial,
but would be legislative, and would assume a power that we
are not permitted to exercise.

Id. at 982; see also State ex rel. Transp. Mfg. & Equip. Co. v. Bates, 224

S.W.2d 996, 1001 (Mo. 1949) (en banc) (“The courts have no power by

construction to extend the scope of a taxing statute and make it applicable

to those to whom the General Assembly never intended it should apply,

thus taxing those whom the Legislature said shall not be taxed.”); Pasado’s

Safe Haven v. State, 259 P.3d 280, 286–87 (Wash Ct. App. 2011).

This court must accept the fact that the legislature has declared that

assault and battery claims are not within the scope of the ITCA. The court

should accept what the legislature has enacted. If the legislature desires

to bring a tort claim within the scope of the ITCA, it will have to do so

through appropriate legislation that provides an adequate remedy for any

direct constitutional claim. But as demonstrated above, for the court to

do so through application of the severance doctrine is judicial legislation.
As a back up to its severance analysis, the majority proposes that

this court simply adopt the provisions of the ITCA onto our judicial gloss
 54

of the development of the direct constitutional tort. I cannot agree. At the

outset, the only questions we have been asked are whether certain

provisions of the ITCA apply to this case. The majority’s development on

its own of a shadow ITCA is beyond the scope of the questions posted by

the federal court. Whether the court should develop a shadow law has not

been briefed by the parties and is beyond the scope of this litigation. 17

Further, there is no authority for the proposition that a court

recognizing a direct constitutional cause of action under its state

constitution should judicially develop some kind of shadow tort claims act
to surround constitutional torts when the relevant legislative version of the

statute is inapplicable. More specifically, no state with direct

constitutional torts has fashioned some kind of judicially created notice

regime or imposed some limitation on punitive damages that looks like an

inapplicable legislative restriction.

So I would not create some kind of shadow tort claims act when the

actual tort claims act did not apply and where the issue is not raised in

the litigation. Further, I would not adopt the one that the majority has

fashioned. For example, I would not adopt a judicially created notice

provision for constitutional torts. In Felder v. Casey, the United States

Supreme Court considered whether a Wisconsin notice of claim provision

in state law could be applied to a 42 U.S.C. § 1983 action where a suspect

was allegedly exposed to excessive force. 487 U.S. 131, 134–38, 108 S. Ct.

2302, 2304–06 (1988). The Felder Court determined that applying a notice

17The district court only asks whether the terms of a specific statute, the ITCA,
apply to this case. The answer to that question, as demonstrated above, is no. The
district court does not ask whether the Iowa Supreme Court should judicially imply
similar or identical terms if, in fact, the ITCA does not apply. And, there is nothing in the
State’s brief declaring that if the ITCA does not apply, the court should nevertheless as a
matter of judicial construction imply such term identical to the ITCA in this case.
 55

of claim provision would unduly burden the federal right. Id. at 141, 108

S. Ct. at 2308. As the Felder Court explained,

A state law that conditions that right of recovery upon
compliance with a rule designed to minimize governmental
liability, and that directs injured persons to seek redress in
the first instance from the very targets of the federal
legislation, is inconsistent in both purpose and effect with the
remedial objectives of the federal civil rights law.

Id. at 153, 108 S. Ct. at 2314. As the Felder Court points out, it is one

thing to borrow a statute of limitations for use in a direct constitutional

action but quite another to create a notice barrier to bringing a direct
constitutional claim. Id. at 145–46, 108 S. Ct. at 2310–11. Of course,

Felder involved a 42 U.S.C. § 1983 action, but its point applies equally well

in the context of state constitutional torts. A notice provision adds an

unnecessary burden to vindication of the constitutional claim.

Even if a notice of claim approach could be defended, I would

certainly not adopt this new procedural wrinkle for the first time today and

apply it to the case at hand in a fashion that sends the plaintiffs’ claim out

of court. Nor would I limit litigation to Iowa courts, and certainly not

without giving interested parties a full opportunity to brief the pros and

cons of such a move. And, as will be explained further below, I think it

crystal clear that the preclusion of punitive damages in the ITCA does not

pass constitutional muster in light of the special nature of constitutional

torts. Punitive damages are an essential tool in the enforcement of direct

constitutional causes of action. Michael Wells, Punitive Damages for

Constitutional Torts, 56 La. L. Rev. 841, 841 (1996) [hereinafter Wells]

(“[C]onstitutional tort is one area where punitive damage awards are

essential to the effective enforcement of our rights.”).
As a result of the above, I would conclude that the exclusion of

assault and battery from the ITCA removes this case from the ITCA and
 56

makes the remedial structure entirely inadequate to consider the direct

constitutional claims in this case. Therefore, the provisions of the ITCA

have no application to the plaintiffs’ claims.

IV. Overview of the Law of Punitive Damages.

A. Iowa Caselaw on Purpose of Punitive Damages. Before one

starts to whittle away at remedies for direct constitutional torts, it is

important to understand the substance of what is being cut away—

namely, punitive damages. I begin with a brief survey of the law of punitive

damages.
“Punitive damages are well-established under [Iowa law].” Ackelson

v. Manley Toy Direct, L.L.C., 832 N.W.2d 678, 686 (Iowa 2013); see also

Lacey v. Straughan, 11 Iowa 258, 260 (1860). Punitive damages in Iowa

are available if the plaintiff proves by a preponderance of clear, convincing,

and satisfactory evidence the defendant’s conduct constituted a willful and

wanton disregard for the rights or safety of another and caused actual

damage. Iowa Code § 668A.1(1)(a); Beeman v. Manville Corp. Asbestos

Disease Comp. Fund, 496 N.W.2d 247, 255–56 (Iowa 1993) (en banc).

As we stated in Ryan v. Arneson, punitive damages have a different

purpose than actual damages,

Actual damages are designed to compensate the injured party
for the injury caused by wrongful acts. Punitive damages, on
the other hand, are not compensatory. They exist to punish
the defendant and to deter the offending party and like-
minded individuals from committing similar acts.

422 N.W.2d 491, 496 (Iowa 1988) (citation omitted); see also Northrop v.

Miles Homes, Inc. of Iowa, 204 N.W.2d 850, 861 (Iowa 1973) (“Exemplary

damages are in no way intended to be compensatory. . . . Exemplary

damages are intended to punish the defendant and deter others from
similar wrongdoing.” (citation omitted)); Syester, 257 Iowa at 629, 133
 57

N.W.2d at 676 (“[I]llegal or improper acts ought to be deterred by the

exaction from the defendant of sums over and above the actual damage he

has caused.” (quoting Amos, 115 F. Supp. at 137)).

Our common law development of punitive damages fits nicely with

the constitutional claims in the Wilkes canon. Punitive damages beyond

actual damages were appropriate in Wilkes “to deter from any such

proceeding for the future, and as a proof of the detestation of the jury to

the action itself.” 98 Eng. Rep. at 498–99.

We have also emphasized the fact-based nature of the punitive
damages question. We have noted, for instance, that legal precedent is of

marginal value in assessing a punitive damages award in an individual

case. Ryan, 422 N.W.2d at 496; Northrup, 204 N.W.2d at 861.

The bottom line is that punitive damages have long been available

in Iowa, they are designed primarily to deter and to express community

outrage and not to compensate, and punitive damage claims are generally

fact intensive and not subject to broad application of legal rules.

B. Punitive Damages Are “Especially Appropriate” in Direct

Constitutional Causes of Action.

1. Introduction. My views on the role of punitive damages in direct

Iowa constitutional causes of action have already been presented in

Godfrey II and are briefly reprised and elaborated upon here in light of the

specific context of this case. 898 N.W.2d at 876–79.

Punitive damages play a central role in the enforcement of direct

constitutional causes of action. The pedigree is exceptional in light of the

Wilkes cases where jury verdicts of punitive damages were upheld in the

English courts as an expression of outrage over the government’s behavior
and as a deterrent to future violations. Consistent with the Wilkes cases,

as noted by the Supreme Court of Louisiana,
 58
“[T]he right of the people to be secure in their persons, houses,
papers and effects, against unreasonable searches and
seizures . . . ,” would be a mockery if courts . . . failed to inflict
exemplary damages for the wanton abuse of the personal
liberty and private rights of property . . . .

Frazier v. Parsons, 24 La. Ann. 339, 341 (1872) (quoting U.S. Const.

amend. IV). So, constitutional torts are different, and that difference drives

in the direction of permitting juries to impose punitive damages in

appropriate cases.

2. Carlson v. Green: punitive damages “especially appropriate” in

direct constitutional claims. In Carlson v. Green, the Supreme Court

considered the question of whether the Federal Tort Claims Act (FTCA)

provided an adequate remedy to direct constitutional claims in a case

involving a wrongful death. 446 U.S. 14, 16–17, 100 S. Ct. 1468, 1470–

71 (1980). Like the case at bar the direct constitutional claim was brought

by a mother on behalf of her son’s estate. Id. at 16, 100 S. Ct. at 1470.

She alleged that her son died as a result of violations by federal prison

officials of her son’s due process, equal protection, and Eighth Amendment

rights. Id. She sought damages for the violations. Id. The question was

whether the FTCA provided an exclusive remedy or whether she could

proceed outside the framework of the FTCA with her lawsuit. Id. at 16–

17, 100 S. Ct. at 1470–71.
In Carlson, the Supreme Court declared that the FTCA remedy did

not prevent the mother from pursuing an independent direct action. Id.

at 18–19, 100 S. Ct. at 1471–72. The Carlson Court noted there was

nothing in the FTCA that suggested that Congress intended to preempt the

independent claim. Id. at 19–20, 100 S. Ct. at 1472. Like the ITCA the

FTCA was enacted before Bivens. Id. But nothing in the FTCA expressly
indicated an intent to cover Bivens-type claims. Id.
 59

In addition, the Carlson Court noted that a Bivens claim gave rise to

a claim against individuals. Id. at 24–25, 100 S. Ct. at 1475. The Carlson

Court observed that the individual remedy available under Bivens was

different from the remedy against the United States offered by the FTCA.

Id. at 20–23, 100 S. Ct. at 1472–74. As a result, the Bivens claim provided

an extra measure of deterrence. Id.

The Carlson Court also turned to the issue of punitive damages. Id.

at 21–22, 100 S. Ct. at 1473. The Carlson Court noted that punitive

damages were “especially appropriate to redress the violation by a
government official of a citizen’s constitutional rights.” Id. at 22, 100 S. Ct.

at 1473. As a result, the Carlson Court noted that the FTCA is “that much

less effective” than an independent direct constitutional claim. Id.

The Supreme Court’s conclusion in Carlson was unequivocal.

According to the Carlson Court, “Plainly [the] FTCA is not a sufficient

protector of the citizens’ constitutional rights.” Id. at 23, 100 S. Ct. at

1474. Although Carlson involved a number of factors, the lack of punitive

damages under the FTCA clearly played a major role in the Court’s

assessment of the adequacy of the FTCA remedies.18

18Three years after Carlson, the Supreme Court upheld an award of punitive
damages in a 42 U.S.C. § 1983 action against a prison guard where a prisoner was
allegedly recklessly placed in a cell with other inmates where he was harassed, beat, and
subject to sexual assault. Smith v. Wade, 461 U.S. 30, 52–56, 103 S. Ct. 1625, 1638–40
(1983). The Supreme Court affirmed a jury verdict awarding $25,000 in compensatory
damages and $5000 in punitive damages. Id. at 33, 103 S. Ct. at 1628. The jury
instruction in Smith v. Wade permitted an award of punitive damages for conduct
involving reckless or callous indifference to Smith’s federally protected rights. Id. In
approving the jury instruction and affirming the verdict, the Smith Court noted that
“society has an interest in deterring and punishing all intentional or reckless invasions
of the rights of others.” Id. at 54, 103 S. Ct. at 1639.
 60
V. Application of Bar on Punitive Damages in the ITCA to This
Case.

A. Majority Approach to Punitive Damages in this Case. In light

of the well-established nature of punitive damages, the fact-based nature

of the punitive damages inquiry, and the special role of punitive damages

in constitutional torts, one would want to be very cautious with dismissing

a claim of punitive damages based solely on the pleadings. No one claims

that the pleadings in this case are not sufficient to support traditional

punitive damages under ordinary Iowa law. The question is whether

punitive damages can be taken off the table as a potential remedy for the

case based solely on the pleadings.

That is what the majority does. It simply declares that “[a]t least in

an excessive force case without other unconstitutional conduct where any

actual damages will likely be significant, we are not persuaded to overturn

the bar on punitive damages imposed by the legislature.” Apparently an

excessive force case, standing alone, is not enough for punitive damages

where the beating is sufficiently severe to cause actual harm. On the

pleadings, the majority guesses that it is “likely” that “substantial” actual

damages will arise in this case involving the death of a young, mentally ill,

and suicidal individual. Under the majority’s approach, the greater the
harm inflicted by the unconstitutional excessive force, the lesser the need

for an award of punitive damages. There are no citations for that

proposition. In any event, according to the majority, as a matter of law,

there is a categorical bar to punitive damages in excessive force cases

where (1) no “other” constitutional claims are present, and (2) “actual

damages will likely be significant.”

The majority further declared that in a “different kind of
constitutional tort case,” there might be a different answer. For example,
 61

the majority suggests that in cases involving “invidious discrimination or

suppression of free speech, a traditional award of actual damages may not”

be sufficient. But how do we know that these additional features are not

at work in this case at the pleading stage? We have only notice pleading.

We do not know the race of the parties. We do not know if, for example,

discrimination against persons who are mentally ill was at work. But, after

today, the majority takes punitive damages off the table as a matter of law

for cases involving solely the use of excessive force, no matter how

malicious or how brutal, provided that the excessive force was “likely” to
cause “significant” actual damages. If the beating is mild and only

embarrassing to the person being beaten, then punitive damages may be

available, but after today, law enforcement can be advised that there will

be no punitive damages in an excessive force case if they cause sufficient

actual injury.

B. Problems with Majority Approach.

1. Punitive damages not available as a matter of law based on the

pleadings. In this case, the majority determines based solely on the

pleadings that punitive damages are categorically not available in an

excessive force case, even where the pleadings are sufficient to raise the

issue of punitive damages under traditional Iowa law. But under Iowa law,

a challenger to a pleading must show “no state of facts is conceivable under

which the plaintiffs might show a right of recovery.” Below v. Skarr, 569

N.W.2d 510, 511 (Iowa 1997). But here, we have only notice pleading. We

do not have a developed factual record regarding the shooting. It is

certainly conceivable that there are many facts out there that might

strongly support a claim of punitive damages. We do not have any factual
information about Spece’s motivation, whether Spece had any prior

relationship with the deceased, whether Spece made any disparaging
 62

comments at or around the time of the shooting. We do not know Spece’s

race or age. We cannot say, at this point, whether there was even

discriminatory motivation based upon race, disability, or religion. But

according to the majority, the plaintiffs are not allowed to develop the facts

to support a possible punitive damages claim.

The majority, based on the pleading, declares that it is “likely” that

“substantial” actual damages may be awarded. I do not think the principle

that the greater the actual injury, the lesser the claim for punitive damages

makes any sense. Setting aside the validity of this consideration on the
availability of punitive damages, we really do not know the facts. We know

little about the young man’s mental health history, his employment

history, and his life expectancy given his suicidal inclinations. Although I

do not know what “substantial” actual loss means, it seems to me it is

conceivable that the economic loss in this case would be relatively modest.

And if the plaintiffs prove their case (namely that the shooting amounted

to target practice), an award solely of economic damages would be entirely

inadequate without an addition of punitive damages to deter future similar

misconduct.

Further, note what facts are not relevant at all. In excessive force

cases, for the majority, it does not matter whether the perpetrator is a

recidivist, or how many blows are inflicted, or why they are inflicted, or

how they are inflicted, or who is present when they are inflicted, or the

amount of time or duration of the attack, provided that it is “likely” that

the perpetrator has inflicted “actual damage” and there is no other

constitutional violation present.

2. The greater the actual harm, the less likelihood of punitive
damages? Under the majority’s view as I see it, the greater the application

of excessive force, the greater the likelihood of actual damages, and
 63

therefore, the greater the likelihood that punitive damages are eliminated

at the pleading stage as a matter of law without further inquiry. Torture

causing serious injury is less likely to draw punitive damages, according

to the majority’s rule, than a slap. This strikes me as an upside down

proposition.

But the facts do matter. If I were forced to pick a category of cases

where facts do not matter for purposes of punitive damages in cases

involving direct constitutional causes of action, one of the last categories I

would select is excessive force cases where substantial damages have been
inflicted on the hapless victim. An excessive force case is exactly the type

of case where punitive damages may well be a critical element in achieving

an appropriate measure of justice and where a jury, with the supervision

of a judge, should make the key assessment of state behavior.

3. The majority ignores the public interest purpose of constitutional

torts. As has been stressed above, one of the central pillars of a direct

constitutional tort is to advance the public interest in constitutional

enforcement and to deter future misconduct. Wilkes, 98 Eng. Rep. at 498–

99. And, the purpose of punitive damages historically in Iowa has not

been compensatory but designed to punish the defendant and to deter

future misconduct. Ryan, 422 N.W.2d at 496. The majority conflates

compensatory and punitive damages, noting that if there is a likelihood of

“substantial” actual damages, there is no need for a punitive damages

remedy. But that formulation ignores the fundamental difference in

purpose of punitive damages as compared to compensatory damages. The

majority gives no role for expression of public outrage or in deterring future

misconduct of an excessive force case involving substantial actual
damages that was so important in the glorious Wilkes case. The majority

essentially privatizes the constitutional tort claim by focusing only on the
 64

remedy of actual damages and ignoring the public interest in expressing

outrage and in deterring unconstitutional official misconduct that has

historically supported the punitive damages remedy.

4. Many excessive force cases have awarded both actual damages

and punitive damages in light of their different purpose. There is little point

in a long laundry list of citations, but suffice it to say that punitive

damages have traditionally been very much a part of excessive force cases

where the actual injury has been substantial. See, e.g., Ismail v. Cohen,

899 F.2d 183, 187 (2d Cir. 1990) (upholding $150,000 in punitive
damages with $650,000 in compensatory damages); Gutierrez-Rodriguez v.

Cartagena, 882 F.2d 553, 579–82 (lst Cir. 1989) (upholding punitive

damage totaling $600,000 and compensatory damages of $4,500,000);

Bordanaro v. McLeod, 871 F.2d 1151, 1153 & n.1 (lst Cir. 1989) (upholding

total award of $3,488,356 in compensatory damages and $819,983 in

punitive damages); O’Neil v. Krzeminski, 839 F.2d 9, 13–14 (2d Cir. 1988)

(upholding $185,000 in punitive damages with compensatory damages of

$80,000); Stokes v. Delcambre, 710 F.2d 1120, 1126–28 (5th Cir. 1983)

(upholding punitive damages of $205,000 and $105,000 against sheriff

and deputy with $70,000 in compensatory damages in a jail conditions

case); Alla v. Verkay, 979 F. Supp. 2d 349, 372–79 (E.D.N.Y. 2013)

(upholding $150,000 in punitive damages where the initial jury award for

compensatory damages totaled $1,750,000 and would not be less than

$250,000 after a new trial solely on economic damages); Lewis v. City of

Albany Police Dep’t, 547 F. Supp. 2d 191, 210 (N.D.N.Y. 2008) (upholding

a jury award of $200,000 in punitive damages in an excessive force case

with $65,000 in compensatory damages).
5. The majority’s requirement of a double constitutional violation to

open the door for punitive damages is unprecedented and unworkable. The
 65

majority suggests that if a plaintiff has pled a double constitutional

violation, then the multiple claims together might give rise to punitive

damages. A substantial constitutional claim of excessive force resulting

in death is, apparently, not sufficiently serious as a matter of law to

prevent the elimination of a punitive damages remedy. Under the

majority’s approach, a brutal, brutal beating is not enough, even if the

application of excessive force was by a repeat offender, continued over a

long period of time, and brought the victim to the edge (or over the edge)

of life. There has to be, as I read the majority opinion, a second
constitutional violation, maybe “invidious discrimination.” But an

application of excessive force, no matter how outrageous, by an equal

opportunity oppressor does not require the availability of a punitive

damages remedy.

The majority’s suggestion that invidious discrimination in addition

to excessive force might increase the likelihood of availability of punitive

damages for direct constitutional claims is not very comforting. Invidious

discrimination, under federal caselaw at least, is a very narrow doctrine

that requires proof of actual intent to discriminate, something that is

almost impossible to prove. See State v. Brown, 930 N.W.2d 840, 918–19

(Iowa 2019) (Appel, J., dissenting).

I have found no case in any jurisdiction requiring two constitutional

violations to support a claim of punitive damages in an excessive force

case. Like the proposition that the presence of actual damages reduces

the need for punitive damages, the proposition that two constitutional

claims must be present to support punitive damages is an unprecedented

barrier to vindication of a direct constitutional claim of excessive force.
6. Application of Godfrey II principles to a case involving ultimate

physical invasion resulting in death. In Godfrey II, this court was divided
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on the question of whether a punitive damage remedy was required to

provide an adequate remedy for the alleged constitutional violations in that

case. 898 N.W.2d at 880 (Cady, C.J., concurring in part and dissenting in

part). An opinion by Chief Justice Cady provided the determinative vote

on the question of whether the remedies provided by the Iowa Civil Rights

Act (ICRA) were adequate to preempt Godfrey’s direct constitutional claim

on equal protection grounds. Id. Chief Justice Cady concluded that under

the allegations made in the case involving loss of salary due to alleged

discrimination based on sexual orientation, the remedies under the ICRA
were adequate and, as a result, the district court properly dismissed

Godfrey’s direct constitutional claims based on sexual orientation

discrimination. Id. at 881.

Chief Justice Cady recognized that in Carlson, the Supreme Court

emphasized, without qualification, that punitive damages are “especially

appropriate to redress the violation by a Government official of a citizen’s

constitutional rights.” Id. (quoting Carlson, 446 U.S. at 22, 100 S. Ct. at

1473).

Chief Justice Cady did not reject Carlson, but he did limit it. In

finding that the remedies under the ICRA were adequate notwithstanding

Carlson’s declaration that they were “especially appropriate” in cases

involving constitutional rights, Chief Justice Cady emphasized several

factors. Chief Justice Cady noted that Godfrey claimed a reduction of

salary that could be adequately compensated by damage remedies under

the ICRA. Id.

Further, Chief Justice Cady noted that under the ICRA, a plaintiff

could recover attorney fees. He emphasized that

[o]bviously, attorney fees cannot replace punitive damages in
cases of physical invasion, assault, or violations of other liberty
interests, but their availability for a claim of monetary loss is
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an important factor in assessing the adequacy of a statutory
remedy.

Id. (emphasis added). So there are two critical factors in Chief Justice

Cady’s analysis: one, the case did not involve “physical invasion, assault,

or violations of liberty interests,” and two, the additional remedy of

statutory attorney fees are available. Id.

Here, of course, the case does involve the ultimate physical

invasion—an assault and battery that results in death. And, there is no

provision for attorney fees under the ITCA that might be balanced against

the loss of a claim for punitive damages. Thus, the central underpinnings

of Chief Justice Cady’s opinion in Godfrey II—finding that the ICRA

provided adequate remedies notwithstanding the lack of a punitive

damages remedy—are simply not present.

Applying the principles of Chief Justice Cady’s decisive Godfrey II

opinion to this case involving the ultimate physical invasion, coupled with

the lack of a compensating attorney fees provision, the remedies in this

case provided by the ITCA would be inadequate under Carlson.

7. Ironic reliance on Baldwin II and City of Newport. The majority

relies heavily on the holding in Baldwin v. City of Estherville (Baldwin II)

that a municipality is not subject to punitive damages. 929 N.W.2d 691,
699–700 (Iowa 2019). That holding was based, in part, on the Supreme

Court’s holding in City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271,

101 S. Ct. 2768, 2762 (1981). In City of Newport, the Supreme Court

largely precluded an award of punitive damages against municipalities in

actions under § 1983. Id.

In City of Newport, the Supreme Court emphasized that with respect

to common law claims, the authorities were “virtually unanimous” in
denying punitive damages against municipalities. Id. at 260, 101 S. Ct. at
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2756. The City of Newport Court emphasized that at common law, punitive

damages applied only to “actual wrongdoers.” Id. at 263, 101 S. Ct. at

2757. The Court noted that “the retributive purpose is not significantly

advanced, if it is advanced at all, by exposing municipalities to punitive

damages.” Id. at 268, 101 S. Ct. at 2760. The Supreme Court feared that

juries could not be trusted with punitive damages in light of the

temptations to produce large verdicts that threatened the financial

integrity of the government entities in light of the unlimited taxing power

of municipalities. Id. at 270–71, 101 S. Ct. at 2761–62. See generally
Wells, 56 La. L. Rev. at 844–45.

But City of Newport should not be followed in this case. First, the

approach in the case is wrong. While the Supreme Court feared excessive

verdicts against municipalities, it overlooked the power of the courts to

review a jury’s award of punitive damages for excessiveness. See, e.g.,

Auster Oil & Gas, Inc. v. Stream, 835 F.2d 597, 603–04 (5th Cir. 1988).

Further, the notion that cities will not be deterred by potential exposure to

punitive damage awards seems unsupportable. Municipal entities are in

a better position than individuals to develop oversight and training

programs designed to limit the risk of punitive damages. Finally, punitive

damage awards vindicate systematic values of compliance to basic

constitutional principles by units of government. The gravity of the harm

to the constitutional regime “is often not adequately measured by the

personal damages [that a] victim can prove.” Wells, 56 La. L. Rev. at 863.

But second, and more importantly, City of Newport involved the

question of whether punitive damages should be awarded against a

municipality. It did not involve punitive damages against an individual. As
the Supreme Court itself recognized, much of the rationale against

punitive damages against the City of Newport loses its steam in the context
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of a claim against an individual. City of Newport, 453 U.S. at 269–70, 101

S. Ct. at 2761. Unlike claims of punitive damages against municipalities,

punitive damages against individuals have broad support in the common

law. See, e.g., Smith v. Wade, 461 U.S. 30, 35, 103 S. Ct. 1625, 1629

(1983). Further, in response to claims that elimination of punitive

damages against municipalities would undercut the deterrence function

of constitutional torts, the Supreme Court noted that “a more effective

means of deterrence” may be found in “juries and courts [who may] assess

punitive damages in appropriate circumstances against the offending
official, based on his personal financial resources.” City of Newport, 453

U.S. at 269, 101 S. Ct. at 2761. Thus, one of the policy rationales for

limiting punitive damages against municipalities was the availability of

punitive damages against individual officers.

It would be ironic indeed to use a rule of law limiting punitive

damages against municipalities based upon the availability of other

remedies to eliminate the other remedies upon which the rule of law was

based. Indeed, logic cuts in the other direction. As noted in Newell v. City

of Elgin, the lack of exemplary damages against a municipality in a

statutory scheme is a factor in permitting a Bivens claim. 340 N.E.2d 344,

349 (Ill. App. Ct. 1976).

C. Summary. In my view, in a case involving excessive force by

government authorities alleging intentional misconduct or reckless

disregard of the rights or safety of another, a punitive damages remedy

must be part of the remedial portfolio. And the remedial scheme of the

ITCA cannot be applied in this case. Along with the assault and battery

exclusion, the lack of availability of a punitive damages remedy makes the
remedial scheme of the ITCA an inadequate vehicle for consideration of

excessive force cases. If there is to be severance of an unconstitutional
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provision in this case, it is the unlawful exclusion of punitive damages by

the ITCA for constitutional claims such as this one that should be severed,

not the lawful exclusion of assault and battery claims. Instead, the

majority has dramatically departed from the Wilkes tradition, one of the

great gifts of English law, a gift that so moved earlier generations of

Americans and Iowans, and replaced it with a more anemic remedial

scheme for constitutional claims. I protest in the strongest of terms.

IV. Conclusion.

In light of the above analysis, I would answer the questions posed
by the district court as follows:

“[Question 1:] Does the Iowa Tort Claims Act, Iowa Code Chapter

669, apply to plaintiffs’ constitutional tort causes of action?”

Answer: No.

“[Question 2:] Is the available remedy under the Iowa Tort Claims

Act for excessive force by a law enforcement officer inadequate based on

the unavailability of punitive damage? And if not, what considerations

should courts address in determining whether legislative remedies for

excessive force are adequate?” Answer: The limitations of the ITCA do not

apply in this case. In an excessive force case, the plaintiff must have an

adequate opportunity to seek punitive damages under standards for

punitive damages previously developed at common law.

“[Question 3:] Are plaintiffs’ claims under the Iowa Constitution

subject to the administrative exhaustion requirement in Iowa Code section

669.5(1)?” Answer: No.

“[Question 4:] Are plaintiffs required to bring their Iowa

constitutional claims in the appropriate Iowa district court under Iowa
Code section 669.4?” Answer: No.