A cause of action for damages under the state constitution.

• Author: Freedus, Matthew S.
• Position: State Constitutional Commentary: An Interdisciplinary Examination of State Courts, State Constitutional Law, and State Constitutional Adjudication - Case Note

"When the law immunizes official violations of substantive rules because the cost or bother of doing otherwise is too great, thereby leaving victims without any realistic remedy, the integrity of the rules and their underlying public values are called into serious question."(1) -- Judge Richard D. Simons, writing for the majority in Brown v. State.

1. Introduction

   A constitutional tort is an action seeking damages against the government or its employees for violation of a constitutional right.(2) The purpose of this civil action is to enforce the government's constitutional duty to provide individuals with meaningful protection against governmental interference.(3) Nearly three decades ago, in Bivens v. Six Unknown Federal Narcotics Agents,(4) the constitutional tort theory first emerged in the context of federal civil rights litigation. The United States Supreme Court recognized a damages cause of action against a federal official based upon duties defined in the United States Constitution, despite the absence of explicit constitutional or statutory authorization.(5)

   However, since Bivens, scholars have noted a conservative trend in the protection of federal rights and liberties which arguably necessitates the development of state constitutional remedies.(6) According to Professor Jennifer Friesen, "[u]nless the states respond to these trends with adequate compensatory remedies for state constitutional interests now litigated under federal formulas, there soon may be a serious remedial shortfall in civil rights."(7)

   In Brown v. State of New York,(8) the claimants challenged the New York Court of Appeals to determine whether the rights provided by the New York State Constitution(9) exist as either meaningful protections against state encroachment or merely as words on paper "full of sound and fury, [s]ignifying nothing."(10) The claimants brought suit for damages against the state for violations of the equal protection and search and seizure clauses of the New York State Constitution.(11) In a landmark decision,(12) the court held by a five-to-one vote(13) that the state is liable in money damages for violations of an individual's state constitutional rights, and that the Court of Claims has jurisdiction over these actions.(14)

   Given Brown's new avenue of redress, New York civil rights and liberties plaintiffs will no longer have to depend solely on federal courts for protection of their fundamental constitutional rights. By recognizing the viability of the state constitutional tort claim, Brown signals the Court of Appeals' willingness to embrace the state constitution as a source of meaningful protections against state interference, as well as a potential remedial link capable of bridging the current void in civil rights and liberties.(15)

   Part II of this Comment briefly examines the rationale of the Bivens claim because many state courts borrow from Bivens and its progeny when recognizing or repudiating a state constitutional tort cause of action.(16) part III provides Brown's factual background and procedural setting.(17) After analyzing the New York Court of Claims' subject matter jurisdiction, Part IV supports the majority's rationale for finding the requisite jurisdiction to hear constitutional torts.(18) This section also briefly illustrates the spectrum of approaches taken by other state courts when tackling issues of immunity and jurisdiction because sovereign immunity represents a formidable barrier to state constitutional tort claims. Part V examines Brown's rationale for finding an implied damages cause of action against the state for violations of state constitutional guarantees, in short, recognizing the constitutional tort.(19) This section evaluates and synthesizes the competing rationales supporting and rejecting the constitutional tort. The purpose of this analysis is ultimately to assess the strength and coherence of Brown's rationale. This Comment concludes that the decision in Brown fulfills the Court of Appeals' obligation both to recognize the primacy of state constitutional rights and to enforce those guarantees through money damages, at least until the state legislature intervenes with its own meaningful remedial mechanisms.(20)

2. The Federal Bivens Claim

   The federal Bivens claim has served as a guidepost for many state courts in determining whether to allow a damages cause of action for state constitutional violations.(21) As a note of caution, this section illustrates how the Bivens analogy carries with it not only beneficial holdings but burdensome exceptions as well. When fashioning state constitutional damage claims, it is important to realize that Bivens merely represents a model and that state remedies need not conform to this parallel federal doctrine.(22)

   In Bivens, the petitioner alleged that federal officials entered his apartment and arrested him on drug charges without probable cause.(23) After handcuffing the petitioner in front of his wife and children and threatening to arrest the entire family, the federal agents proceeded to search his entire apartment without a warrant.(24) "Thereafter, petitioner was taken to the federal courthouse in Brooklyn, where he was interrogated, booked, and subjected to a visual strip search."(25)

   The petitioner brought suit against the federal narcotics officers seeking damages for violations of his federal constitutional rights.(26) Absent statutory authorization, the Supreme Court recognized an implied cause of action for damages directly under the Fourth Amendment.(27) This constitutional tort entitled the petitioner "to recover money damages for any injuries" suffered as a result of a search and seizure that was conducted in violation of his rights.(28)

   Writing for the majority, Justice Brennan justified implying this direct constitutional cause of action by emphasizing the disparity of power between federal officials and private citizens and by illustrating the distinct purposes behind constitutional and common law causes of action.(29) Justice Brennan wrote: "An agent acting -- albeit unconstitutionally -- in the name of the United States possesses a far greater capacity for harm than an individual trespasser exercising no authority other than his own."(30) While we can clearly deny a private intruder admission into our home, "[t]he mere invocation of federal power by a federal law enforcement official will normally render futile any attempt to resist an unlawful entry."(31) In other words, when the unlawful intruder happens to be the federal government, there is nowhere you can turn for help.(32)

   The Court found the authority to entertain this cause of action under federal question jurisdiction because the substantive right at issue, the right of the individual "to be free from unreasonable searches and seizures carried out by virtue of federal authority," is provided for under the federal constitution.(33) While the Fourth Amendment does not explicitly provide for money damages to enforce this right, once a cause of action is recognized, the Court has inherent authority to fashion any available remedy to enforce these federal constitutional guarantees.(34) Justice Brennan stated that "[h]istorically, damages have been regarded as the ordinary remedy for an invasion of personal interests in liberty."(35) However, the Court qualified the availability of this remedy by creating exceptions to the Bivens doctrine where there are "special factors counselling hesitation."(36) While this exception appears open-ended, Justice Brennan's majority opinion offered only two such limiting factors, "`federal fiscal policy'" concerns and the availability of equally effective legislative remedies.(37) Some state court decisions rejecting state constitutional causes of action have tailored their language to conform to these "factors counselling hesitation."(38)

   Other state courts extract arguments presented in the separate dissenting opinions to reject constitutional tort claims.(39) Chief Justice Burger's dissenting opinion asserted that this private cause of action offended "the important values of the doctrine of separation of powers .... Legislation is the business of the Congress, and it has the facilities and competence for that task -- as we do not."(40) In addition, the language from Justice Black's and Justice Blackmun's dissenting opinions, which suggests that the Court would be "choked" with an "avalanche of new federal cases," is parroted frequently in arguments rejecting constitutional tort claims.(41)

   These exceptions and limitations come prepackaged with the Bivens analogy, but may be inapplicable in the context of state constitutional analysis. State courts are not bound by the Bivens opinion when interpreting their own constitutions. Unlike federal courts, state courts are not restricted by "policies of federalism" or the concern for "nationally uniform rules."(42) Recognition of this point may help to deflect or counteract the most common objections to a Bivens-type claim.(43)

3. The New York Court of Appeal's Brown v. State Decision

   1. Factual Background

      This case originated out of a highly publicized police investigation in Oneonta, New York.(44) On September 4, 1992, an elderly white woman was attacked at knifepoint in her home near the state university campus.(45) The victim described her assailant to the state police as a black male.(46) In addition, the victim communicated to the police that her assailant may have sustained a cut on his hand or forearm during the attack.(47) After an initial canvass of the area failed to identify a suspect, the state police "prevailed upon" state university officials to produce a list of the names and addresses of all African-American males attending the school.(48) The police proceeded to systematically locate and question every student on the list.(49) These interrogations took place in school dormitories, off-campus apartments, campus grounds, and city streets.(50) Each...