A better path for constitutional tort law.

• Author: Greabe, John M.

There is a fundamental contradiction at the heart of constitutional tort law. On the one hand, the Supreme Court has repeatedly said that the federal statute under which most constitutional tort claims are brought, 42 U.S.C. [section] 1983, (1) is not substantive; it merely channels positive law rights created elsewhere, primarily in the Constitution. (2) But on the other hand, the doctrinal regime the Court has created under section 1983 (as well as the parallel regime authorized by Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics (3)) avoids difficult governmental immunity issues by requiring that nearly all claims for damages formally be brought against personal defendants in their individual capacities. (4) The fact that nearly all damages claims under section 1983 are brought as individual-capacity actions cannot be squared with characterizing section 1983 as non-substantive. Outside of the Thirteenth Amendment's ban on slavery or involuntary servitude, the Constitution does not impose limits on individuals as individuals--i.e. as private jural persons separate and distinct from the government whose power they are said to have abused. (5) Thus, personal defendants cannot "violate" the Constitution in their individual capacities, and a section 1983 plaintiff's right to claim against a personal defendant in an individual capacity cannot arise directly from the Constitution. And this leaves only one other potential source of this important substantive right: section 1983.

This paper seeks to explain how recognizing the substance of section 1983 insofar as it authorizes individual-capacity claims could pave the way for a clarifying reform of the quagmire that is constitutional tort doctrine. (6) Part I starts with an elaboration of why section 1983 is substantive and an explanation of why an individual-capacity claim, while containing an imbedded constitutional issue, is not itself truly "constitutional." (7) Part I then discusses some implications of these observations for a problem that the Supreme Court is poised to revisit when it decides Pearson v. Callahan later this term: the wisdom and legality of the order-of-decisionmaking rule prescribed in Saucier v. Katz. (8) The Saucier rule directs that, in individual-capacity actions in which the defendant asserts a qualified immunity from damages liability because the challenged conduct was not obviously unlawful, (9) courts should enable the ongoing development of constitutional law by deciding whether the defendant's conduct caused a constitutional deprivation before proceeding to decide whether the defendant is entitled to immunity. (10)

Part I concludes with an argument that the Saucier rule, which was imposed because of concerns about the "freezing" of constitutional law, (11) should be relaxed and modified to take account of the fact that binding constitutional rulings should not be made in statutory claims against individuals as individuals-claims to which the government is not formally even a party. (12) In those cases where the law-development concerns underlying Saucier lead a court to conclude that it should address the constitutional issue that is imbedded within an individual-capacity claim, the government should first be invited to intervene and to brief its position on the constitutionality of the conduct that the lawsuit has put into issue. (13)

Part II turns to a larger doctrinal consequence of the erroneous assumption that section 1983 is non-substantive: the emergence over the past 40 years of the non-textual affirmative immunity defenses that the Supreme Court has read into the statute and made available to individual-capacity defendants. (14) Part II argues that, once one appreciates that section 1983 is substantive insofar as it authorizes individual-capacity claims, the door opens to important questions that the Court has not asked: Is there really any reason to read a conflict of laws into individual-capacity claims under section 1983, as the Court has done in creating these affirmative immunity defenses? More specifically, is there really any reason to treat the substantive entitlements to sue individuals that section 1983 creates as coextensive with true constitutional rights but subject to being trumped by affirmative immunity defenses, drawn from the common law, that the statute does not authorize? And is there anything worthwhile accomplished by this giving-with-the-one-hand-while-taking-with-the-other construction of the statute, which often results in a section 1983 plaintiff being told that a remedy is being withheld even though there has been a rights-violation?

Part II contends that the answer to each question is no. Constitutional tort litigation would be far better off if the Supreme Court reinterpreted section 1983 to avoid this conflict between statutory text and common law (which it has inexplicably resolved in favor of the common-law rule!), eliminated all affirmative immunity defenses, and instead construed the entitlements to sue individuals that section 1983 authorizes as narrower than the true constitutional rights that limit government entities. (15) Such a reading, which is rooted in existing Court precedent, (16) would do far less violence to the text of the statute than that inflicted by current doctrine. (17) Moreover, narrowing the substantive reach of the statute could help to promote the early resolution of groundless damages claims at the pleading stage, minimize costly disagreements over issues peripheral to liability, and preserve the substantive rights and procedural protections that parties to section 1983 actions presently enjoy--all within a litigation framework that is built on ground rules familiar to judges and practitioners, and therefore less likely to cause unnecessary confusion or to invite lawless judicial tinkering. (18) Finally, the proposed reform would help to clarify that, whatever else might be said of it, the limited damages-liability regime authorized by section 1983 involves no disregard of Chief Justice Marshall's promise of a remedy for every invasion of a constitutional right, (19) as many commentators have charged. (20) For it would drive home the point that an individual-capacity damages action is merely a unique statutory tort claim that Congress has authorized against some personal defendants involved in constitutional violations, and that it is cumulative of any direct remedy the plaintiff might have against the government agency which actually committed the constitutional violation. (21)

1. THE SUBSTANCE OF SECTION 1983 AND THE FALSE PREMISE OF SAUCIER

   The Supreme Court appears to have taken the nonsubstantive nature of section 1983 as a given. (22) But at the same time, the Court has avoided the potentially difficult immunity problems that would be raised in suits for damages brought directly against government entities by requiring that nearly all claims for damages under section 1983 be filed as individual-capacity claims against the personal defendants who have acted under color of law during the incident underlying the lawsuit. (23) By proceeding down this path, the Court has created a doctrinal incoherence. (24)

   The problem is this: If we are to take seriously the proposition that, outside of rare situations involving the Thirteenth Amendment, only the government (acting, necessarily, through living agents) can violate the Constitution, (25) the reality of individual-capacity damages claims is fundamentally at odds with treating section 1983 as merely remedial. Individuals as individuals lack the legal capacity to violate the Constitution. Only a government entity, or an individual serving as an agent of the government and therefore acting in a public capacity because the individual (1) is employed by the government and has acted within the scope of his employment, (2) has exercised a "public function," or (3) has received tacit governmental ratification of the conduct in circumstances sufficient to warrant application of the Supreme Court's state-action "entanglement" cases, has the inherent capacity to infringe constitutional rights. (26) Thus, insofar as section 1983 creates individual-capacity lawsuits, the statute is necessarily substantive. By authorizing causes of action against individual persons in their capacities as private jural entities separate and apart from their public capacities as agents through whom the government acts, section 1983 creates substantive entitlements, and imposes on individual-capacity defendants substantive duties, that otherwise would not exist. A natural person adjudged individually liable under section 1983 for what the Supreme Court frequently terms a "constitutional violation" (27) has not, in fact, personally "violated" the Constitution. Individual-capacity liability arises only by virtue of the fact that the personal defendant has violated a federal statute--one whose substantive reach is defined by reference to the Constitution but which itself creates substantive entitlements and duties insofar as it authorizes suits against individuals as individuals for their roles in constitutional violations.

   Why does it matter that we resist the tendency to think that our constitutional "rights" are enforceable (either defensively, as in a motion to suppress unconstitutionally seized evidence in a criminal case, or offensively, as in a section 1983 action) against not only an overreaching government but also against the human agents through whom the government acts in their capacities as private citizens? Why does it matter that we recognize the substantive nature of an individual-capacity claim under section 1983? It matters because, if one accepts that section 1983 creates substantive entitlements that otherwise would not exist, and that it does not merely specify remedies for substantive rights created in the Constitution, there is no longer any reason to presume that the substantive entitlements to...