What is sovereign immunity?
Sovereign immunity is the rule that a government can't be sued without its consent. It traces back to the English idea that "the king can do no wrong" and became part of American law early on. Today it survives mostly as a starting point: Congress and the states have waived immunity for many kinds of claims, but only on the terms they set, and courts read those waivers narrowly.
For anyone harmed by a government employee, a police officer or a public facility, the practical question is which statute opens the door. The answer depends on whether the defendant is the federal government, a state, a city or an individual official.
- Federal government
- Federal Tort Claims Act
- State and local officials
- 42 U.S.C. § 1983
- States themselves
- Eleventh Amendment immunity in federal court
- Korean term
- 국가배상 (state compensation)
If a mail truck runs a red light and hits you, you can sue. If a soldier is injured by military negligence, usually you can't. The difference is a 1950 Supreme Court case.
The Federal Tort Claims Act
The Federal Tort Claims Act (FTCA) of 1946 lets people sue the United States for injuries caused by the negligent or wrongful acts of federal employees acting within the scope of their jobs, to the same extent a private person would be liable under the law of the state where it happened. A claimant must first file an administrative claim with the agency within two years; a lawsuit is allowed only after the agency denies it or fails to act within six months. Cases are tried by a judge, not a jury, and punitive damages aren't available.
Limits on FTCA claims
Important exceptions limit the FTCA. The discretionary function exception bars claims based on policy choices, such as how to allocate safety inspections. Many intentional torts are excluded, though claims for assault, false arrest and similar acts by law enforcement officers are allowed. Under the Feres doctrine, from Feres v. United States (1950), service members can't sue for injuries "incident to service." Basic negligence concepts are explained in personal injury law.
States have their own tort claims acts, and most waive immunity for some negligence by state and local employees, often with damages caps and short notice deadlines. In many cities, a written notice of claim must be filed within a few months, and courts strictly enforce these deadlines even against people with serious injuries. Lawyers handling a claim against a public body usually check these rules before anything else, because a missed notice can't be cured later.
Section 1983 and qualified immunity
Federal law, 42 U.S.C. § 1983, lets people sue anyone who, acting under state law, violates their constitutional rights, which covers police officers and other state and local officials. Cities and counties can be sued too, but under Monell v. Department of Social Services (1978) only for harm caused by an official policy or custom, not simply because they employ the wrongdoer. States themselves are generally protected by the Eleventh Amendment from damages suits in federal court. Many claims rest on the due process and equal protection guarantees of the Fourteenth Amendment.
Individual officials can raise qualified immunity. Under Harlow v. Fitzgerald (1982), officials are shielded from damages unless they violated a "clearly established" right that a reasonable person would have known about. In practice courts often require a prior case with very similar facts, which critics say lets serious misconduct go unremedied.
- Feres v. United States (1950)
- No FTCA claims for injuries incident to military service
- Monell v. Department of Social Services (1978)
- Cities liable under § 1983 only for policies or customs
- Harlow v. Fitzgerald (1982)
- Qualified immunity's "clearly established" test
How Korea compares
Korea's Constitution guarantees the right to compensation for unlawful acts by public officials (art. 29), and the State Compensation Act makes the state or local government liable when an official, in the course of duty, intentionally or negligently violates the law and causes harm (art. 2). It is also liable without fault for defects in the installation or management of public facilities such as roads and rivers (art. 5). There is no general sovereign immunity: the state can be sued directly in ordinary courts, and filing first with a compensation council has been optional since 2000.
The Supreme Court held in 1996 (95다38677, en banc) that an official is personally liable too if they acted intentionally or with gross negligence, but not for ordinary negligence. The Constitution bars soldiers and police officers who receive statutory benefits from suing for duty injuries (art. 29(2)), a rule similar to Feres. A Korean case comment on 2012다204365 판례 평석: 민주화보상법상 보상금 지급결정 동의와 위자료 청구의 가부 shows how compensation statutes can limit later damages claims, a question tied to res judicata.
| United States | Korea | |
|---|---|---|
| Starting point | Immunity unless waived | Constitutional right to compensation |
| Official misconduct | FTCA, § 1983, qualified immunity | State liable for fault (art. 2) |
| Defective facilities | Depends on FTCA and state law | No-fault liability (art. 5) |
| Military injuries | Feres doctrine | Barred if statutory benefits (art. 29(2)) |
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Criticism and debate
Critics across the political spectrum say qualified immunity has become too broad, and several states, including Colorado and New Mexico, have created state-law claims against officers without it. Defenders say officials need room to make quick decisions without fear of personal ruin, and point out that governments usually indemnify officers anyway. The Feres doctrine is also criticized, and in 2019 Congress allowed limited administrative claims for military medical malpractice. In Korea, debate focuses on the bar on soldiers' suits and on compensation for historical state violence.
Before suing any government body, check the deadline first. Notice-of-claim rules for cities can be as short as a few months.
- Can you sue the federal government?
- Yes, for many injuries caused by federal employees' negligence under the Federal Tort Claims Act, but you must first file an administrative claim within two years.
- What is qualified immunity?
- A doctrine that shields government officials from damages unless they violated a clearly established constitutional right.
- Can you sue a state in federal court?
- Generally not for damages, because of Eleventh Amendment immunity, though you can often sue state officials under Section 1983.
References and official sources
- Sovereign immunity, Wex. Cornell LII
- 28 U.S.C. § 2680 (FTCA exceptions). Cornell LII
- 42 U.S.C. § 1983. Cornell LII
- Qualified immunity, Wex. Cornell LII
- 국가배상법. 국가법령정보센터