Disaggregating constitutional torts.

• Author: Jeffries, John C., Jr.

In the four decades since Monroe v. Pape,(1) the Supreme Court has crafted a vast body of law on money damages for violations of constitutional rights. After twenty-five years of following those decisions, I have come to think that Monroe was wrong. The error lay not in the result, which was admirable, but in the attribution of that result to a Reconstruction-era statute applicable indifferently to all rights. Treating the availability of damages as a transsubstantive exercise in statutory interpretation obscures important differences among rights and suppresses clear thinking about remedies. A better strategy would abandon the "one-size-fits-all" approach and adapt remedies to specific rights. The availability of money damages would then depend on an assessment of their role in enforcing particular rights--and especially on the availability of alternative remedies that make damages more or less needful.

The Monroe Court based its decision on the Civil Rights Act of 1871, now codified at 42 U.S.C. [sections] 1983,(2) citing famously inapposite legislative history for the proposition that Congress had imposed federal damages liability for violations of federal rights by state officers, regardless of the adequacy of state law.(3) Whether that was in fact Congress's intent is still controversial,(4) although the weight of opinion supports the Court's view.(5) More compelling than the shards of legislative history was the manifest hardship of making civil rights plaintiffs demonstrate the inadequacy of state law before seeking federal relief. One need only think of the difficulty of proving selective prosecution to imagine the burden of having to show a "custom" or "usage" of indifference to federal rights in order to get redress in any individual case. Of this very powerful reason for creating a free-standing federal remedy, the Monroe Court said nothing at all.

Monroe thus began a jurisprudential tradition that still afflicts the law of [sections] 1983. Questions are asked and answered as if they were of interest only to antiquarians.(6) The history invoked is never conclusive, often irrelevant,(7) and sometimes absurd.(8) Results are attributed to offhand remarks of long-dead legislators who could not have foreseen the issues at hand or the constitutional landscape in which they arise. One can only sympathize with Justices who feel obliged to divine what members of the Forty-second Congress would have thought, had they thought, of something that never crossed their minds. It's rather like asking, "If I had a sister, would she like cheese?"(9)

Worse, the relentless historicity of [sections] 1983 decisions diverts attention from the merits. Important issues are resolved without discussion of any reason why we should care. In Monroe, for example, the Court expressly disavowed "policy considerations" in ruling that municipalities could not be sued under [sections] 1983.(10) In Monell v. Department of Social Services, the Court again ignored policy concerns in reaching precisely the opposite conclusion.(11) One may admire the Court's willingness to admit error, but surely, somewhere along the way, the Justices should have considered whether municipal liability is a good idea. Either they had no view on that question, or they felt constrained by the methodology of statutory interpretation not to reveal their reasoning.

Fortunately, the preoccupation with history seems to be receding. As precedents accumulate and the field matures, the Court increasingly turns to its own prior utterances as the starting point for analysis. This approach allows more room for consideration of policy and practicality. Recent opinions say less about the views of Representatives Blair and Shellabarger(12) and more about the advantages and disadvantages of competing positions.(13) Of course, the results remain controversial, but the shift toward candid discussion of the concerns that might move a rational Justice (or student or professor) to favor one outcome over another is surely to be welcomed.(14)

Unfortunately, another legacy of Monroe remains firmly entrenched. By anchoring constitutional tort actions in the brief generalities of [sections] 1983, the Monroe Court severed the law of money damages from the rights they enforce. The statute itself creates no rights. It provides a cause of action for redressing deprivation of "rights, privileges, or immunities" created elsewhere. There is no textual opportunity to differentiate among constitutional violations or to calibrate specific remedies. So far as appears, all remedies are available for all rights on the same terms. Even though we know that rights and remedies are connected, interactive, and mutually dependent and defining,(15) constitutional tort law pretends that it is not so. Instead, the Monroe approach is comprehensive and categorical. It gives the same remedial answer to every constitutional question.

By imprisoning remedial choice in the methodology of statutory historicism, the Supreme Court has locked out concerns that should matter. In particular, current doctrine awards or withholds money damages without regard to alternative remedies. Instead, damages should be integrated with other means of redress in remedial strategies for particular rights. In other words, we should disaggregate constitutional tort law to allow a better fit between damages remedy and constitutional right.

The suggestion that money damages should vary with the underlying claim presupposes that they not be available in every case. If optimal enforcement were maximum enforcement, every constitutional violation would trigger money damages, and there would be no case for mediating doctrine. The argument for differentiating remedial strategies across rights assumes that sometimes less is better. Put differently, the argument assumes that there is, and sometimes should be, a gap between constitutional rights and damages remedies.(16)

Under current law, that gap not only exists, but is very large. It results from a requirement of fault, beyond the mere fact of unconstitutionality, on the part of officer defendants sued under [sections] 1983.(17) The liability standard is negligence with respect to illegality. Its doctrinal home is qualified immunity, which bars the award of damages for injuries resulting from unconstitutional acts that "a reasonable officer could have believed ... to be lawful."(18) As administered, qualified immunity precludes damages for a substantial range of constitutional violations, especially where the underlying standards are murky or unclear. Occasionally, localities can be sued directly under [sections] 1983 and held liable without proof of fault, but the circumstances are very limited.(19) In the great bulk of cases, civil rights plaintiffs must sue government officers, all of whom can claim at least qualified immunity from liability for money damages.(20) Qualified immunity is the doctrinal wedge that separates damages from other remedies.

This Essay argues that the law of qualified immunity should be refined and rethought. It not only should differentiate damages from other remedies, but also should differentiate damages among rights. Neither the rationales for, nor the arguments against, qualified immunity apply equally to all constitutional violations. Costs and benefits are distributed unevenly. Much depends on the effectiveness of money damages in redressing particular violations and on the efficacy and availability of other remedies. Current law suppresses such concerns. A better approach would disaggregate constitutional torts and adapt remedial strategies to specific wrongs.

This Essay proceeds from the descriptive to the normative. Part I begins with a review of the rationales for qualified immunity. There are at least two distinct rationales for limiting money damages for constitutional violations, and neither applies in all contexts. Analyzing the functions of qualified immunity doctrine under current law reveals significant variation in the role and utility of money damages in different circumstances.

Part II is explicitly normative. It presses the argument that differences among constitutional violations should be acknowledged and exploited in the law on money damages. In some contexts, damages will be an essential mechanism of enforcement; in others, damages can be treated as a backup remedy aimed at special situations. The analysis depends crucially on the availability of other remedies. Part II sketches the kind of integrated right-remedy analysis toward which courts should move.

Part III is a brief conclusion. It calls for reconceptualizing and reorganizing the law of [sections] 1983.

1. THE THREE FACES OF QUALIFIED IMMUNITY

   The Supreme Court espouses a unified-field theory of qualified immunity. In Justice Brennan's words, the law of qualified immunity reflects a balance struck "across the board," rather than with reference to particular claims.(21) In Anderson v. Creighton, the Court endorsed that remark, adding that "we have been unwilling to complicate qualified immunity analysis by making the scope or extent of immunity turn on the precise nature of various officials' duties or the precise character of the particular rights alleged to have been violated."(22) Doctrinally, therefore, qualified immunity applies comprehensively to all damages actions brought against state and local officers under [sections] 1983, as well as to analogous actions against federal officers under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics.(23) In all such cases, the defendant is immune from award of money damages "if a reasonable officer could have believed" in the legality of the act that caused the plaintiff's injury.(24)

   Of course, practical lawyers seeking practical guidance do not stop with generalities. They look for precedents similar to the case at hand. The search for recurring factual patterns has particularized to some extent the law...