In February 2020, Print Zutavern’s family called law enforcement for help while he was experiencing a mental health emergency. Instead of helping him, law enforcement shot and killed him. His family is seeking answers from the Nebraska State Patrol (NSP), but the NSP, which is not a defendant in the case, refuses to comply with a subpoena seeking information. The District of Nebraska held that the NSP must comply, but the NSP appealed to the Eighth Circuit, claiming that sovereign immunity relieves state officials from the obligation to respond to third-party subpoenas. Our brief in support of Bryan Mick, Print Zutavern’s representative, explains that the doctrine doesn’t apply for three reasons.

First, the plain text of the Eleventh Amendment poses no bar to the third-party subpoenas at issue in this case. The Amendment’s text limits a federal court’s jurisdiction over “suit[s] in law or equity, commenced or prosecuted against” a state. As our brief makes clear, a third-party subpoena, and any proceedings that arise from it, cannot be considered a “suit in law or equity” within the meaning of the Eleventh Amendment. Judges and lawyers at the time of ratification understood a “suit” to be a proceeding in which a court adjudicates legal claims made by a plaintiff against a defendant. Sovereign immunity therefore only applies when the state is a party and cannot be invoked by a witness.

Second, the historical record confirms that sovereign immunity does not prevent state officials from participating in third party discovery. The Constitution and the Eleventh Amendment were both drafted against the backdrop of the fundamental principle that “the public has a right to every man’s evidence.” At the Founding, this right to evidence carried with it a corresponding judicial power over witnesses and was understood to be integral to the administration of justice. Because of this, there were few exceptions to the compulsion of a third-party subpoena. Consistent with this history, the practice of Founding-era courts confirms that third-party subpoenas directed toward state officials were not thought to disturb state sovereignty.

Third, our brief refutes NSP’s argument that cases involving federal and tribal sovereign immunity bolster their claim to immunity from third-party subpoenas. As our brief explains, these cases do not help them for the simple reason that federal and tribal sovereign immunity are not coextensive with state sovereign immunity. To the contrary, those immunities come from different sources and serve distinct purposes.

The Eighth Circuit should uphold the lower court’s decision requiring the NSP to comply with the subpoena.