Qualified Immunity and State Sovereign Immunity in Public Health Emergencies: Porter v. Thigpen

Introduction

Porter v. Thigpen (11th Cir. Apr. 21, 2025) concerns constitutional challenges to Governor Brian Kemp’s COVID-19 “shelter-in-place” executive order and its enforcement by Georgia State Troopers and a county deputy sheriff. Plaintiffs—church members who attended an indoor worship service three days after the order—claimed that their First and Fourteenth Amendment rights were violated when officers threatened to enforce the order and later cited them for reckless conduct. The district court dismissed their federal claims (42 U.S.C. § 1983) and declined to retain supplemental jurisdiction over their state-law claims. On appeal, the Eleventh Circuit affirmed, holding that:

State defendants retained sovereign immunity from § 1983 damages despite removing the case to federal court;
the troopers had probable cause to enforce the misdemeanor order, defeating a First Amendment retaliation claim;
neither substantive nor procedural due process supported the plaintiffs’ § 1983 claims;
neither Governor Kemp nor the troopers violated clearly established Free Exercise rights, entitling them to qualified immunity;
the appeal against Deputy Borne was abandoned and dismissed.

Summary of the Judgment

The Eleventh Circuit reviewed the district court’s Rule 12(b)(6) dismissal de novo and affirmed in all respects:

Eleventh Amendment Immunity: Removal to federal court does not waive a state’s immunity from liability. Official-capacity damages claims against the Governor and troopers were barred.
First Amendment Retaliation: Enforcement of a neutral, generally applicable public-health order carrying misdemeanor sanctions provided probable cause, defeating any retaliatory‐arrest claim (Nieves v. Bartlett).
Due Process:
- Substantive due process was unavailable where the Free Exercise Clause supplied the governing standard (County of Sacramento v. Lewis).
- Emergency public-health orders were properly issued without individualized notice or hearing (Hodel v. Virginia Surface Mining & Reclamation Ass’n).
Free Exercise Clause & Qualified Immunity: Even assuming non‐neutral treatment of religious assemblies, it was not “clearly established” in April 2020 that such orders violated the Free Exercise Clause. Officials were entitled to qualified immunity (Carruth v. Bentley).
Abandonment of Appeal against Deputy Borne: The plaintiffs failed to include Borne properly in the appeal, leading to dismissal of the claims against him.

Analysis

1. Precedents Cited

Lapides v. Board of Regents (2002): Removal does not waive state immunity from liability, only immunity from the federal forum.
Stroud v. McIntosh (11th Cir. 2013): States can waive one form of immunity while retaining another.
Kentucky v. Graham (1985): Official-capacity suits are suits against the state.
Bennett v. Hendrix (2005) & Nieves v. Bartlett (2019): Elements of an arrest‐based First Amendment retaliation claim and the probable‐cause defense.
DeMartini v. Town of Gulf Stream (11th Cir. 2019): Probable cause destroys retaliation claims.
Hodel v. Va. Surface Mining & Reclamation Ass’n (1981): Emergency situations can justify summary administrative action without pre‐deprivation process.
County of Sacramento v. Lewis (1998): Substantive due process is not a catch-all when specific provisions apply.
Roman Catholic Diocese of Brooklyn v. Cuomo (2020), S. Bay United Pentecostal Church v. Newsom (2021), Tandon v. Newsom (2021): Supreme Court free exercise rulings post-dating the challenged order.
Pleasant View Baptist Church v. Beshear (6th Cir. 2023) & Elim Romanian Pentecostal Church v. Pritzker (7th Cir. 2022): Early-pandemic orders did not violate the First Amendment.

2. Legal Reasoning

The court’s reasoning unfolded in three parts:

Sovereign Immunity: Although removal waived the defendants’ objection to federal jurisdiction (Lapides), it did not waive their immunity from § 1983 liability (Stroud). Official-capacity damages against the Governor and troopers were thus barred by the Eleventh Amendment (Graham).
First Amendment & Due Process: The shelter-in-place order was neutral, generally applicable and backed by misdemeanor sanctions. Probable cause defeated the retaliation claim (DeMartini; Nieves). Procedural due process did not require pre-enforcement notice in a public-health emergency (Hodel), and substantive due process claims were displaced by the Free Exercise framework (Sacramento).
Qualified Immunity & Free Exercise: Officials acted within their discretionary authority—issuing and enforcing a valid emergency order (Carruth). The law was not clearly established in April 2020 that a governor’s failure to exempt religious worship from a public-health order violated the Free Exercise Clause, so qualified immunity applied to all individual-capacity claims (Michigan v. DeFillippo).

3. Impact

Porter v. Thigpen cements several important principles for future public-health and emergency-powers litigation:

States retain sovereign immunity from § 1983 damages even after removing to federal court, clarifying Lapides’s limits.
Law enforcement retains qualified immunity when enforcing facially neutral, generally applicable public-health statutes, so long as no controlling precedent clearly prohibits conduct.
Substantive due process cannot be used to circumvent more specific constitutional provisions (e.g., Free Exercise).
Emergency orders may be enforced without individualized procedural safeguards where public health interests are paramount.

Complex Concepts Simplified

Eleventh Amendment Immunity: A state’s constitutional protection from being sued for money damages in federal court.
Removal Waiver: When a defendant moves a case from state to federal court, they waive only the right to object to the federal forum, not immunity from liability.
Qualified Immunity: Shields government officials from money‐damage suits unless they violate “clearly established” rights of which a reasonable person would have known.
Neutral, Generally Applicable Law: A rule that applies equally to all persons and does not target religious practice specifically; such laws may only incidentally burden religion without violating the Free Exercise Clause.
Substantive vs. Procedural Due Process: Substantive due process protects fundamental rights not explicitly mentioned elsewhere, while procedural due process requires fair procedures before depriving someone of life, liberty, or property. Emergency orders can sometimes bypass procedural steps if public safety demands it.

Conclusion

In affirming the dismissal of Porter v. Thigpen, the Eleventh Circuit reaffirmed the robust shield of sovereign immunity for state officials in § 1983 suits, clarified that probable cause nullifies First Amendment retaliatory-arrest claims, and upheld the qualified immunity of executives and officers enforcing neutral emergency public-health orders. The decision highlights the judiciary’s reluctance to second-guess early pandemic interventions and establishes guardrails for future challenges to government actions taken in crisis.