Constitutional Wrongs and Common Law Principles: The Case for the Recognition of State Constitutional Tort Actions against State Governments
Jefferson, T. Hunter, Vanderbilt Law Review
Imagine an individual whose friend has allowed him to stay in a bedroom of his trailer home. This individual brings his most treasured and personal possessions along with him. Two police officers, after receiving information of potential criminal activity from an informant, enter the trailer without a warrant. Instead of obtaining a warrant, the officers solicit the consent of a third party and ransack the bedroom-leaving it in complete disarray. They find no evidence of the alleged criminal wrongdoing and seize no property. Although the police do not arrest the individual, they have humiliated him and have invaded his privacy. These state agents acted without a warrant, without the individual's consent, and in the absence of recognized exigent circumstances.
The United States Supreme Court has held that this particular type of police conduct does not violate the Fourth Amendment of the U.S. Constitution;2 thus, no Section 1983 claim may be brought against these state officers.3 Certain state supreme courts, however, have reached a different conclusion, finding similar conduct to violate comparable provisions of their respective state constitutions.4 These decisions notwithstanding, Section 1983 remains unavailable because, as a federal remedy, it does not extend to violations of state law.5 Thus, without a direct claim under the state constitution for damages or a state provision comparable to Section 1983,6 the plaintiff will go uncompensated for his loss, and he will not have his rights vindicated. Furthermore, the government will go unpunished for egregious acts that were in direct violation of the state constitution. As a result, the government will be undeterred from future unconstitutional conduct.
A direct cause of action for a constitutional. violation will remedy the gap in an individual's ability to seek redress for breaches of constitutional provisions. The concept of a "constitutional tort"' first entered the American legal landscape in Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics in 1971.8 Although common law actions for trespass had long existed for illegal or unconstitutional searches and seizures, Bivens was the first decision to allow a direct claim under the Fourth Amendment of the U.S. Constitution.9 Since the Court's decision in Bivens, many state courts have addressed the issue of constitutional tort claims for violations of state constitutional provisions.lo In 1996 alone, three states, Colorado,ll New York,l2 and Utah,l3 joined the ranks of the many others that have confronted the issue. However, in most of these decisions, as in Bivens, the courts have failed to fully explore the extent of and need for government liability.14
The development of constitutional torts recognizes that constitutional rights and liberties are specific limitations and restrictions on governments and must be enforceable.lb Courts must allow damage suits, the traditional common law remedy,ls not because many of the rights parallel the interests protected by common law tort actions, but because constitutions are enforceable in their own right.l7 Thus, damage actions should not require implementing legislation because constitutions are specifically designed to place limitations on the political branches.ls Although a balance must exist between vindication of constitutional rights and effective, efficient government,l9 the application of common law tort doctrines to constitutional law can ensure adequate compensation for wronged plaintiffs while ensuring that governments are not mired down in baseless suits.20 Moreover, damage awards are the only true remedy for the private citizen that can ensure that government officials respect constitutional protections.
This Note examines the current state of direct causes of action for damages under state constitutions and proposes that state courts recognize constitutional tort actions under their respective state constitutions. …