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Date: Tue, 9 Oct 2007 16:50 From: Chaim Saiman Subject: Police liability - The American story
Just wanted to respond to a few good questions concerning US tort law against public officials that Neil raised in response to my last post. In re which constitutional right are at issue: The federal constitutional right varies with the situation of course, but in the case of police officers, it’s most commonly either unlawful search/arrest, pursuant to the 4th Amendment, excessive force which can be either a 4th Amendment or 8th Amendment (cruel and unusual punishment) issue, or violation of the due process clauses. That being said there have been First Amendment claims against prison wardens who have limited access to reading materials. In re application to state officials: Post civil war, virtually all rights granted under the federal constitution are incorporated as against the States. In fact the point of the sect 1983 civil rights statute was to bring federal law to bear on recalcitrant states and state officials who would often discriminate against African Americans pursuant to either official state law or at least official state practice. Thus anyone acting "under the color of state law" is potentially liable under sect 1983. In re why these actions are brought under federal rather than state law. I think that there are basically 2 reasons: 1. Under state common law, the immunity given to public officials can be very broad both as a matter of substantive tort law, and legislative immunity statutes. However, if you can prove a constitutional violation, state immunity and defenses do not apply. The longer story relates to the explosion of enumerated constitutional rights that the US Supreme Court recognized in the 60s and 70s. As more and more official actions became constitutionally impermissible, more and more official actions were brought within the ambit of sect 1983. At the time, when federal constitutional tort law was rapidly expanding, it made sense to give officials some immunity so that they would not have to predict the future jurisprudence of the Supreme Court, i.e. to limit the retroactive nature of common law tort law. For this reason, the Supreme Court introduced the "clearly established" test, which gave an officer immunity in cases where the Court pronounces a new constitutional right that few people saw coming. But in an era where rights are either stable or shrinking, the doctrine makes little sense. In the past two decades or so the Court has used this doctrine to make it very difficult to win such a case, as I detailed in the last email. 2. Attorneys fees: A case brought pursuant to sect 1983 is classified as a civil rights action and thus a successful plaintiff can collect attorney's fees under section 1988, which of course is contrary to the "American rule" of a traditional tort claim. This explains why there are still so many 1983 cases in the courts, despite the fact that winning them is hard. On a day when the docket is slow, many lawyers feel it’s worth a shot.
-cs Chaim Saiman
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