Thanks, very interesting comparison. A couple of brief questions from over the "Pacific Pond" (at the risk of revealing my ignorance of US law) - why are these cases brought as actions for violation of constitutional rights rather than a common law tort action? And what (briefly) is the Federal constitutional right concerned, and why it is actionable against a State police officer?
>>> Chaim Saiman 8/10/07 1:24 >>>
To my friends over the border and across the pond:
I have not read the SCC case under discussion, but just wanted to give you an American take on police liability. Most of these cases are brought under what is called at "section 1983" which alleges a constitutional violation against a police officer (who is most often a state, rather than federal, employee) and opens the way to liability despite what state law might say. However, over the past 30 years the USSC has developed the doctrine of "qualified immunity" whose unabashed purpose is to make tort actions against police officers more difficult. A plaintiff must prove not only that the officer's actions were unconstitutional, but that the unconstitutionality was "clearly established". For this reason, unless plaintiff can find a prior precedent that spells out pretty much black on white that the particular conduct at issue violated the plaintiff's constitutional rights, the officer escapes liability. See Saucier v. Katz. 523 US at 205.
This hurdle is particularly difficult to overcome in cases where the abstract legal principle is obviously clearly established, but where plaintiff has a hard time proving that the application of the principle to the specific case facts can be deemed "clearly established". For example, in an excessive force case, the abstract principle (officers cannot use "excessive force") is obviously clearly established, but unless plaintiff can point to another case (and some circuits hold that it must be within the same circuit) showing that this exact method of excessive force has been previously deemed unconstitutional by positive case law, a court may hold that the violation is not clearly established. This doctrinal structure makes it rather difficult for plaintiffs to succeed in such cases. Nevertheless at any given moment the federal docket is littered with cases pleading "1983" violations.
Courts have been pretty strict is saying that typically only prior case law can "clearly establish" unconstitutionality. Thus departmental regulations, things covered in training manuals and videos, etc. will not serve to "clearly establish" something as wrong.
If I can plug one of my own articles on this topic, it’s Chaim Saiman, “Interpreting Immunity”, 7 U. Penn J. of Constitutional Law 1155 (2005). There I argue that the doctrine systematically favors defendants because the common law's method of tort development is not designed to distinguish between conduct that is just plain "unconstitutional" and conduct that is so egregious such that its unconstitutionality is "clearly established".
