244 Conn. 23 | Conn. | 1998
Lead Opinion
Opinion
The sole question in this case, which comes to us upon our grant of certification from the United States District Court for the District of Connecticut;
The record certified by the District Court contains the following facts. The plaintiffs, Joseph A. Binette and Janet Binette, residents of the city of Torrington, initiated this action in the Superior Court for the judicial district of Litchfield seeking compensatory and punitive damages against the defendants, Mahlon C. Sabo, the Torrington police chief, and Anthony A. Languell, a Torrington police officer. The complaint alleges that on December 3,1994, the defendants entered the plaintiffs’ home without permission or a warrant. According to the complaint, Sabo threatened Janet Binette with arrest and imprisonment and pushed her, causing her to fall against a wall and over a table. The complaint also alleges that, outside the plaintiffs’ home, Sabo repeatedly slammed Joseph Binette’s head against a car and, further, that Languell, in the course of arresting Joseph Binette, struck him on the head and kicked him while he was lying on the ground experiencing an epileptic seizure.
The complaint contains twenty-two counts, four of which purport to state a cause of action directly under the Connecticut constitution. Specifically, counts three and four of the complaint allege that Sabo and Languell, respectively, violated Joseph Binette’s rights under article first, §§ 7 and 9, of the Connecticut constitution, and counts sixteen and seventeen allege that Sabo and Languell, respectively, violated Janet Binette’s rights under article first, § 7, of our state constitution. The complaint also contains counts alleging common-law
Upon motion of the defendants, the case was removed to the United States District Court for the District of Connecticut. The defendants subsequently filed a motion to dismiss the four counts seeking damages under the Connecticut constitution on the ground that those counts fail to state a legally cognizable claim. The District Court, acknowledging that this court has never addressed the question of whether our state constitution gives rise to a damages action in the circumstances presented, denied the defendants’ motion without prejudice and certified the following question to us: “Do [the] plaintiffs have a cause of action for damages for the injuries alleged in the [t]hird, [f]ourth, [s]ixteenth, and [seventeenth [c]ounts?”
The plaintiffs contend that we should recognize a damages remedy directly under article first, §§ 7 and 9, of the state constitution in the circumstances of this case. The plaintiffs posit two theories in support of this claim. First, they contend that the open courts provision of our state constitution, article first, § 10,
I
The plaintiffs assert that article first, § 10, of the state constitution guarantees them the right to bring a claim directly under article first, §§ 7 and 9. Specifically, the plaintiffs, relying on dicta in Kelley Property Development, Inc. v. Lebanon, 226 Conn. 314, 330-33, 627 A.2d 909 (1993), contend that they are entitled to bring such an action because a damages remedy existed prior to the adoption of our constitution in 1818 for violations of rights that were viewed as fundamental at that time and which are substantially similar to those protected under article first, §§ 7 and 9.
In that case, the plaintiff owners of certain real property sought recovery against the town of Lebanon and its planning and zoning commission under the due process clause of the state constitution, article first, § 8, for alleged improprieties by the commission in its rejection of the property owners’ subdivision application. The property owners in Kelley Property Development, Inc., relying solely on the nonabrogation principle embraced by Gentile, claimed that, because a damages action to redress the violation of rights analogous to due process rights existed at common law prior to 1818, the open courts provision ensured the continued existence of that remedy through a direct cause of action under article first, § 8. Kelley Property Development,
The plaintiffs in this case claim that because they, in contrast to the property owners in Kelley Property Development, Inc., can establish that a damages action to redress rights analogous to the constitutional rights that they claim were violated by the defendants existed at common law prior to 1818; see footnote 8 of this opinion; they have satisfied the test that we applied in Kelley Property Development, Inc., and, therefore, are entitled to bring a claim for damages directly under the state constitution. Because, however, we were not required to consider the merits of the constitutional principle advanced by the plaintiff property owners in Kelley Property Development, Inc., and, in fact, did not do so, we are not bound to accept that principle for purposes of this case.
More importantly, however, we reject the assumption upon which that proposed principle rests, namely, that it necessarily follows from our holding in Gentile. On the contrary, our determination in Gentile that article first, § 10, limits the power of the legislature to abrogate or modify rights extant at common law prior to 1818; Gentile v. Altermatt, supra, 169 Conn. 286; bears no direct relation to the much different question of whether the plaintiffs constitutionally are entitled to bring a claim directly under the state constitution. Put another way, the doctrine that, under article first, § 10, the legislature may not diminish pre-1818 common-law or statutory rights without enacting reasonable alternatives; see
Moreover, neither the plaintiffs nor the amicus curiae has sought to explain how the principle that we applied but did not adopt in Kelley Property Development, Inc., may be gleaned from our article first, § 10 jurisprudence.
II
The plaintiffs also claim that we should recognize a common-law cause of action under article first, §§ 7 and 9, of our state constitution for the policy reasons articulated in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, supra, 403 U.S. 388.
In Kelley Property Development, Inc. v. Lebanon, supra, 226 Conn. 334 n.26, we assumed without deciding that we had the power to create a damages action under our state constitution. Today, we hold that we possess such authority. It cannot be doubted that we have the inherent power to recognize new tort causes of action, whether derived from a statutory provision; see, e.g., Mead v. Burns, 199 Conn. 651, 663, 509 A.2d 11 (1986) (creating damages action under Connecticut Unfair Trade Practices Act for violations of Connecticut Unfair Insurance Practices Act); or rooted in the common law. See, e.g., Sheets v. Teddy’s Frosted Foods, Inc., 179 Conn. 471, 480, 427 A.2d 385 (1980) (recognizing tort of wrongful discharge); Urban v. Hartford Gas Co., 139 Conn. 301, 307, 93 A.2d 292 (1952) (recognizing torts of intentional and negligent infliction of emotional distress). Moreover, in Bivens, the United States Supreme Court concluded that federal courts possess the power to create a private damages action directly under the federal constitution; Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, supra, 403 U.S. 395-97; and the great majority of state courts that have considered the question have recognized their authority to do so under their state constitutions. See discussion of foreign court decisions in part II B of this opinion.
Furthermore, support for the creation of a constitutional tort cause of action also may be found in the common-law antecedents to our state constitutional prohibitions against unreasonable searches and seizures. See, e.g., Grumon v. Raymond, 1 Conn. 39 (1814) (damages awarded against magistrate for issuance of
We turn now to the plaintiffs’ claim that we should recognize a Bivens-like cause of action in the circumstances of this case. In Bivens, the United States Supreme Court concluded that a “violation of [the fourth amendment’s prohibition against unreasonable searches and seizures] by a federal agent acting under color of his authority gives rise to a cause of action for damages consequent upon his unconstitutional conduct.”
In considering the plaintiffs claim, the court in Bivens also observed that Congress had not provided another remedy, equally effective in Congress’ view, nor had it prohibited an award of damages. Id., 396-97. Moreover, the court discerned no “special factors counselling hesitation” in the absence of affirmative Congressional action. Id., 396. Finally, the court rejected the defendants’ contention that damages should be permitted only if they were necessary to enforce the fourth amendment. Id., 397. Reiterating the frequently quoted passage from Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803), that “ ‘[t]he very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives
In the decade alter Bivens, the United States Supreme Court also has recognized constitutional tort actions for violations of rights protected under the fifth and eighth amendments to the United States constitution. See, e.g., Carlson v. Green, 446 U.S. 14, 17-23, 100 S. Ct. 1468, 64 L. Ed. 2d 15 (1980) (allowing damages action against federal prison officials for violations of eighth amendment prohibitions against cruel and unusual punishment, notwithstanding availability of damages under Federal Tort Claims Act, where no special factors counseled hesitation and Congress had neither prohibited damages nor expressly provided another, equally effective remedy); Davis v. Passman, 442 U.S. 228, 245-48,99 S. Ct. 2264, 60 L. Ed. 2d 846 (1979) (permitting damages action for violation by Congressman of fifth amendment due process guarantee in context of alleged wrongful discharge of employee, where Congress had not precluded damages, equitable relief would be unavailing, and fact that official was Congressman, while special factor counseling hesitation, was not sufficient to defeat claim). More recently, however, the court has “ ‘responded cautiously to suggestions that Bivens remedies be extended into new contexts.’ ” Federal Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 484, 114 S. Ct. 996, 127 L. Ed. 2d 308 (1994), quoting Schweiker v. Chilicky, 487 U.S. 412, 421, 108 S. Ct. 2460, 101 L. Ed. 2d 370 (1988). In particular, the court, in recognition of the principle of separation of powers, has been reluctant to create a federal constitutional damages action where Congress implicitly has expressed a preference for an alternative remedy. For example, the court has declined
Drawing to varying degrees on the reasoning of Bivens, courts in a number of states have recognized damages remedies under their state constitutions. Many of these courts have utilized the analytical framework adopted by Bivens and its progeny, in some cases supplemented by factors not expressly raised in Bivens. See, e.g., Gay Law Students Assn. v. Pacific Telephone & Telegraph Co., 24 Cal. 3d 458, 475, 595 P.2d 592, 156 Cal. Rptr. 14 (1979) (damages action for violation of equal protection provision, citing Bivens); Newell v. Elgin, 34 Ill. App. 3d 719, 722-24, 340 N.E.2d 344 (1976) (damages action for illegal search and seizure, citing Bivens); Moresi v. Dept. of Wildlife & Fisheries, 567 So. 2d 1081, 1091-93 (La. 1990) (same, relying on framers’ intent, English common law, and Bivens); Widgeon v. Eastern Shore Hospital Center, 300 Md. 520, 525-34, 479 A.2d 921 (1984) (recognizing existence of common law action for violations of search and seizure and due process violations, citing English common law, Magna Carta, and Bivens); Strauss v. State, 131 N.J. Super. 571, 575-78, 330 A.2d 646 (1974) (damages action for due process violation, citing Bivens); Brown v. State, 89 N.Y.2d 172, 177-83, 674 N.E.2d 1129, 652 N.Y.S.2d 223 (1996) (damages action for violations of search and seizure and equal protection provisions, relying on Bivens and English common-law antecedents); Corum v. University of North Carolina, 330 N.C. 761, 781-85,
Courts in some states have rejected a Bivens-type action in the cases before them, but expressly or implicitly have left the door open to recognizing such a remedy in other circumstances. See, e.g., Dick Fischer Development No. 2, Inc. v. Dept. of Administration, 838 P.2d 263, 268 (Alaska 1992) (denying damages for due process violation where other administrative remedies available); Board of County Commissioners v. Sundheim, 926 P.2d 545, 549-53 (Colo. 1996) (same, where judicial review of administrative decision and relief pursuant to 42 U.S.C. § 1983 available); Rockhouse Mountain Property Owners Assn., Inc. v. Conway, 127 N.H. 593, 597-601, 503 A.2d 1385 (1986) (denying damages for equal protection and due process violations, where other administrative remedies available); Provens v. Board of Mental Retardation & Developmental Disabilities, 64 Ohio St. 3d 252, 255-61, 594 N.E.2d 959 (1992) (same with respect to violation of free speech provision); Shields v. Gerhart, 163 Vt. 219, 227-37, 658 A.2d 924 (1995) (declining damages action for free speech violation because of legislatively created remedies); Old Tuckaway Associates Ltd. Partnership v. Greenfield, 180 Wis. 2d 254, 268-72, 509 N.W.2d 323 (App. 1993)
In this case, the plaintiffs ask us to recognize a damages action under article first, §§ 7 and 9, of our constitution for the reasons set forth in Bivens. In support of their claim, they emphasize the factual similarity of this case to Bivens and the absence of any statutory remedy under Connecticut law. The defendants, in reliance on our decision in Kelley Property Development, Inc. v. Lebanon, supra, 226 Conn. 334-38, rejecting a Bivens-type damages claim, counter that the absence of any other potential remedy is a necessary prerequisite to our creation of a claim directly under the state constitution. The defendants further contend that, because the plaintiffs have remedies both under state common law and under 42 U.S.C. § 1983, we should decline to create a damages action under the state constitution. We agree with the plaintiffs.
In Kelley Property Development, Inc., the plaintiffs claimed that the federal Bivens line of cases supported their claim for damages directly under the due process provisions of our state constitution. Kelley Property Development, Inc. v. Lebanon, supra, 226 Conn. 338. We reviewed Bivens and its progeny, observing that “[i]n its current configuration, the Bivens line of . . .
In evaluating the plaintiffs’ claim, we note, first, that in the present adjudication — as was the case in Kelley Property Development, Inc. — Bivens and its progeny serve only as a guide. Because we are considering a claim under our state constitution, those federal court cases, based on the federal constitution, are not determinative.
Next, we note that Kelley Property Development, Inc., impheating as it did the doctrine of separation of powers, more closely resembled the later cases in the Bivens line; see, e.g., Schweiker v. Chilicky, supra, 487 U.S. 412; Bush v. Lucas, supra, 462 U.S. 367; than it did Bivens and its earlier progeny. See Carlson v. Green, supra, 446 U.S. 14; Davis v. Passman, supra, 442 U.S. 228. Indeed, in refusing to recognize a state Bivens-type action in Kelley Property Development, Inc., we expressly relied on the “principle of separation of powers and its requirement for judicial deference to legislative resolution of conflicting considerations of public
Furthermore, we agree with the fundamental principle underlying the United States Supreme Court’s decision in Bivens, namely, that a police officer acting unlawfully in the name of the state “possesses a far greater capacity for harm than an individual trespasser exercising no authority other than his own.” Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, supra, 403 U.S. 392; see id., 409 (Harlan, J., concurring) (“[t]he injuries inflicted by officials acting under color of law . . . are substantially different, in kind [from those inflicted by private parties]”). The difference in the nature of the harm arising from a beating administered by a police officer or from an officer’s unconstitutional invasion of a person’s home, on the one hand, and an assault or trespass committed against one private citizen by another, on the other hand, stems from the fundamental difference in the nature of the two sets of relationships. A private citizen generally is obliged only to respect the privacy rights of others and, therefore, to refrain from engaging in assaultive conduct or from intruding, uninvited, into another’s residence. A police officer’s legal obligation, however, extends far beyond that of his or her fellow citizens: the officer not only is required to respect the rights of other citizens, but is sworn to protect and
We also agree with the Bivens court that the availability of other nonstatutory remedies, without more, does not defeat a claim under Bivens.
We are persuaded, therefore, that the compelling policy considerations favoring the creation of a constitutional tort in Bivens apply with equal force to this case. Using the analytical factors set forth in Bivens and its progeny as a guide, we first reiterate that our legislature
Thus, the critical factors that persuaded us to reject a state Bivens-type remedy in Kelley Property Development., Inc., are absent here. First, for the reasons we previously have articulated, recognition of a state Bivens-type remedy in the circumstances of this case reasonably cannot be characterized as an unwarranted intrusion into the pohcy-making authority of the legislature. Second, in Kelley Property Development, Inc. v. Lebanon, supra, 226 Conn. 342, we were reluctant to impose constitutional tort liability on the defendant members of the town planning and zoning commission because, as private citizens, “they might not be able to predict accurately what conduct would be found to violate the state constitution.” Moreover, we expressed the concern that creation of a Bivens-type remedy in the circumstances of that case could “have a chilling effect on the zeal with which [the planning and zoning commission members undertook] their responsibilities.” Id. In contrast, police officers are public employees who are expected — indeed, required — to comport themselves in accordance with constitutional standards.
Finally, we expressed concern in Kelley Property Development, Inc., that the “availability of a state Bivens action, with its potential for significant monetary awards, would encourage its pursuit by any disappointed zoning applicant whenever a zoning agency denies the sought after permit or application,” thereby burdening municipalities and our court system with additional litigation. Id., 342. By contrast, there is no reason to expect that our decision today will result in a flood of litigation. Indeed, in light of the relief already available under state common law and 42 U.S.C. § 1983 to redress injuries resulting from unreasonable searches and seizures, it is likely that the creation of a damages remedy under article first, §§ 7 and 9, will give rise to few, if any, additional law suits. We do acknowledge, however, that creation of a state constitutional tort remedy undoubtedly will spawn some additional litigation regarding the availability of the remedy and its parameters in the specific circumstances presented, and we do not place this burden lightly on our courts. We believe, though, that any such burden is substantially outweighed by our citizenry’s interest in a remedy that enables them to seek fair and meaningful compensation for injuries arising from deprivations of constitutional magnitude.
In that respect, we emphasize that our decision to recognize a Bivens-type remedy in this case does not mean that a constitutional cause of action exists for evexy violation of our state constitution.
C
In recognizing the existence of a damages action in the present case, we, like the United States Supreme
No costs shall be taxed in this court to the parties.
In this opinion CALLAHAN, C. J., and BORDEN, NOR-COTT and MCDONALD, Js., concurred with respect to part I concerning the open courts provision, article first, § 10, of the state constitution, and BORDEN, BERDON and KATZ, Js., concurred with respect to part II concerning the recognition of a cause of action for damages for violations of article first, §§ 7 and 9, of the state constitution.
General Statutes § 51-199a provides in relevant part: “(a) This section may be cited as the ‘Uniform Certification of Questions of Law Act.’
“(b) The Supreme Court may answer questions of law certified to it by ... a United States district court when requested by the certifying court if there are involved in any proceeding before it questions of law of this state which may be determinative of the cause then pending in the certifying court and as to which it appears to the certifying court there is no controlling precedent in the decisions of the Supreme Court of this state.
“(c) This section may be invoked by an order of any of the courts referred to in subsection (b) of this section upon the court’s own motion or upon the motion of any party to the cause.
“(d) A certification order shall set forth: (1) The questions of law to be answered; and (2) a statement of all facts relevant to the questions certified and showing fully the nature of the controversy in which the questions arose. . . .”
Practice Book § 4168 contains a substantially similar provision.
The Connecticut constitution, article first, § 7, provides: “The people shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures; and no warrant to search any place, or to seize any person or things, shall issue without describing them as nearly as may be, nor without probable cause supported by oath or affirmation.”
The Connecticut constitution, article first, § 9, provides: “No person shall be arrested, detained or punished, except in cases clearly warranted by law.”
Title 42 of the United States Code, § 1983 (1994) provides in relevant part: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . .”
In considering the defendants’ motion to dismiss for failure to state a claim, the District Court was required to accept the factual allegations of the complaint as true. See, e.g., Villager Pond, Inc. v. Darien, 56 F.3d 375, 377 (2d Cir. 1995). For purposes of resolving the certified question, we, too, must accept those factual allegations as true.
The Connecticut constitution, article first, § 10, provides: “All courts shall be open, and every person, for an injury done to him in his person,
This argument, which was briefed by the amicus curiae, the Connecticut Civil Liberties Union Foundation, was adopted by the plaintiffs at oral argument before this court. The defendants, who also have briefed the issue, make no claim that it was not properly raised. We therefore consider it.
For purposes of this appeal, we assume, as the plaintiffs assert, that our pre-1818 common law protected rights analogous to those now contained in article first, §§ 7 and 9; see, e.g., Grumon v. Raymond, 1 Conn. 39 (1814); Stoddard v. Bird, 1 Kirby (Conn.) 65 (1786); and, further, that such rights were considered fundamental prior to 1818.
Although we conclude that the plaintiffs may bring an action directly under the state constitution for the policy reasons set forth in Bivens; see
We agree with the concurring and dissenting opinion of Justice Katz that we ordinarily “eschew unnecessary determinations of constitutional questions.” (Internal quotation marks omitted.) Stamford Hospital v. Vega, 236 Conn. 646, 663, 674 A.2d 821 (1996). We generally have applied this rule, however, when we have been able to decide a case either on the basis of an established, common-law principle; see id.; or in reliance on a statutory provision. See, e.g., DeBeradinis v. Zoning Commission, 228 Conn. 187, 195, 635 A.2d 1220 (1994). This case presents neither such alternative. In concluding, under the rationale of Bivens, that the plaintiffs have stated a damages claim directly under article first, §§ 7 and 9, of our state constitution, we do not rely on existing state law. Rather, we today create a new tort action not heretofore recognized by this court. Moreover, in so doing, we are required to address an issue that itself raises questions of constitutional dimension, namely, whether we have the authority to create a damages remedy under the state constitution and, if so, whether invocation of that authority in this case comports with principles of separation of powers. Additionally, we believe that consideration of the plaintiffs’ open courts provision claim also is warranted to clarify the import of our analysis under that provision in Kelley Property Development, Inc. In such circumstances, we are notpersuaded that it is appropriate to avoid the open courts provision claim raised by this appeal. Finally, nothing precludes us from revisiting the decision we reach today under the open courts provision if, in some future case, we are presented with convincing reason to do so.
In this connection, we emphasize that, contrary to the assumption of Justice Katz in her concurring and dissenting opinion, we do not reject the proposition that article first, § 10, may, under appropriate circumstances, embody a private cause of action for pre-1818 “fundamental” common-law rights. Our analysis is more narrow. We simply conclude that, contrary to the assumption of both the plaintiffs and the amicus, neither Gentile v. Altermatt, 169 Conn. 267, 363 A.2d 1 (1975), appeal dismissed, 423 U.S. 1041, 96 S. Ct. 763, 46 L. Ed. 2d 631 (1976), nor Kelley Property Development, Inc., properly understood, establishes or necessarily implies that proposition, and that neither the plaintiffs nor the amicus has offered an analysis— beyond their shared assumption — to establish it. Thus, we leave the question of the validity of the proposition to a case in which it is fully analyzed,
In addition, our review of the briefs submitted by the plaintiffs in Kelley Property Development, Inc., reveals that they, too, contain no explanation purporting to demonstrate why the constitutional principle articulated in Gentile supports the proposition that a direct constitutional action exists under article first, § 10, to vindicate fundamental rights.
We note, moreover, that at least two commentators have criticized our holding in Gentile as an unwarranted extension of the reach of our state constitution’s open courts provision. See, e.g., W. Horton, The Connecticut State Constitution (1993) p. 69; R. Byron, “Open Courts and Vested Rights,” 64 Conn. B.J. 308, 321 (1990). Although we express no view regarding the merits of this commentary, it bears mention only insofar as it counsels against an unduly expansive interpretation of Gentile.
The plaintiffs’ claims under article first, §§ 7 and 9, “sound in constitutional tort. ... A constitutional tort is any action for damages for violation of a constitutional right against a government or individual defendants. Constitutional tort claims were first recognized after the Civil War when
In Bivens, the plaintiff had filed a damages claim in federal District Court directly under the fourth amendment alleging that federal narcotics agents, acting under claim of federal authority, had entered his apartment without a warrant, arrested him without probable cause in full view of his wife and children, threatened his family with arrest, thoroughly searched the premises, and used unreasonable force in arresting and detaining him. Thereafter, the plaintiff was taken to a federal courthouse where he was questioned, processed, and subjected to a visual strip search. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, supra, 403 U.S. 389. The District Court had dismissed the action, and the Court of Appeals had affirmed the judgment of dismissal. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 276 F. Sup. 12 (E.D.N.Y. 1967), aff'd, 409 F.2d 718 (2d Cir. 1969).
The defendant federal agents in Bivens had acknowledged that the plaintiff was entitled to bring an action against them, under state common law, in state court. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, supra, 403 U.S. 390. The defendants also acknowledged that if the United States Supreme Court upheld the dismissal of the plaintiffs complaint in federal court, and if he then chose to commence a state common law action against them in state court, they intended to exercise their right to remove the action to federal court for determination of the case, on the basis of state law, in a federal forum. Id., 391 and n.4. They maintained, however, that the fourth amendment did not provide an independent basis for a damages claim but, rather, served merely “to limit the extent to which the [defendants] could defend the state law tort suit by asserting that their actions were a valid exercise of federal power . . . .” Id., 390-91.
See McCarthy v. Madigan, 503 U.S. 140, 151-52, 112 S. Ct. 1081, 117 L. Ed. 2d 291 (1992) (“[i]nteipretingthe ‘special factors’ exception in Schweiker v. Chilicky, [supra, 487 U.S. 425], and in Bush v. Lucas, [supra, 462 U.S.
Thus, as we stated in Kelley Property Development, Inc. v. Lebanon, supra, 226 Conn. 342-43, the “existing statutory remedy [available to the plaintiffs] strikes a proper balance.”
In Ms concurring and dissenting opimon, CMef Justice Callahan cites to Virgo v. Lyons, 209 Conn. 497, 498-502, 551 A.2d 1243 (1988), and State v. DeFusco, 224 Conn. 627, 620 A.2d 746 (1993), in support of Ms contention that the “injuries that result from the infringement of an individual’s fourth-amendment rights are no different from those that are redressable pursuant to the common-law causes of action for battery, false arrest and intentional infliction of emotional distress.” See part IA of the concurring and dissenting opimon of CMef Justice Callahan. We disagree that either Virgo or DeFusco militates against recogmzing a cause of action under the state constitution in the circumstances of tMs case. Although we noted in Virgo that the interests protected by the fourth amendment are “similar to those protected in common law tort actions”; (emphasis added) Virgo v. Lyons, supra, 502; we neither were presented with, nor did we consider, the altogether different question of whether a violation of constitutional magmtude may give rise to greater harm than that wMch may result from the commission of a common-law tort.
State v. DeFusco, supra, 224 Conn. 627, similarly provides no support for the argument that we should reject the plaintiffs’ claims under article first, §§ 7 and 9. In DeFusco, we disagreed with the defendant’s contention that article first, § 7, precluded the warrantless search of Ms trash, placed at the curb. Id., 637-39. In doing so, we observed oMy that “[a] person’s reasonable expectations [of privacy] as to a particular object” reasonably cannot be predicated upon the identity of the intruder. (Emphasis added.) Id., 637. We decline to read DeFusco as standing for the proposition that the harm flowing from an intrusion into a person’s home by a law enforcement officer is no different from the harm that may result from a similar intrusion by a private citizen.
The federal statutory remedy available under 42 U.S.C. § 1983 creates no impediment to judicial recogmtion of a damages remedy under article
Although in Kelley Property Development, Inc. v. Lebanon, supra, 226 Conn. 340-41 and n.30, we commented, in dicta, that the plaintiffs in that case also might have sought relief by means of a common-law action for intentional interference with a business expectancy, we did not hold that that remedy, standing alone, would have been sufficient to defeat the plaintiffs’ claim for a Bivens-type remedy. We note, moreover, that we have discovered only one case in which a court has refused to create a state Bivens-type action solely because of the availability of an alternative remedy not created by the legislature. See Board of County Commissioners v. Sundheim, supra, 926 P.2d 549-53 (holding that alleged state due process violation in context of zoning decision was sufficiently redressable by means of claim under 42 U.S.C. § 1983 and by judicial review of administrative decisions pursuant to state rule of civil procedure); compare Widgeon v. Eastern Shore Hospital Center, supra, 300 Md. 534-35 (holding that existence of remedies available to plaintiff at common law and under 42 U.S.C. § 1983 did not defeat claim based on constitutional violation).
For example, evidence seized by a police officer in violation of our state constitutional protections against illegal searches and seizures is subject to exclusion in a subsequent criminal proceeding. See, e.g., State v. Marsala, 216 Conn. 150, 159-72, 579 A.2d 58 (1990). Moreover, an action under 42 U.S.C. § 1983 may be brought to vindicate a violation of the fourth amendment’s search and seizure provisions which, though not coextensive with the protections afforded under the state constitution; see, e.g, State v. Miller, 227 Conn. 363, 380-87, 630 A.2d 1315 (1993); State v. Geisler, 222 Conn. 672, 682-90, 610 A.2d 1225 (1992); State v. Marsala, supra, 159-60; are analogous thereto.
In his concurring and dissenting opinion, Chief Justice Callahan suggests that a necessary conclusion to be drawn from our decision today is that, for purposes of determining whether to recognize a cause of action under the state constitution, some constitutional rights will be deemed “special” and others will not. See part III of the concurring and dissenting opinion of Chief Justice Callahan. The concurring and dissenting opinion misapprehends our holding. We reiterate that, as under Bivens and its progeny, a case-by-case analysis will be required in which the nature of the constitutional provision at issue and the nature of the alleged harm will be important considerations, among others, in determining whether the creation of a cause of action under the state constitution is warranted.
Chief Justice Callahan also states that we have failed to provide “a principled basis” for determining when it may be appropriate to recognize a cause of action arising out of a particular state constitutional provision. See part III of the concurring and dissenting opinion of Chief Justice Callahan. On the contrary, the multifactor analysis that we today have outlined provides just such a basis. See Bush v. Lucas, supra, 462 U.S. 378 (decision whether to recognize cause of action directly under constitution, upon consideration of relevant factors, constitutes “the kind of remedial determination that is appropriate for a common-law tribunal.”).
The crux of Chief Justice Callahan’s disagreement with our reliance on Bivens is his conclusion that the court in Bivens drew no distinction between the harm occasioned by an agent’s infringement of fourth amendment rights and the harm occasioned by a private individual’s infringement of common law rights. See part I A of the concurring and dissenting opinion of Chief Justice Callahan. This conclusion, however, is directly contradicted by the plain and unequivocal language that the Bivens court itself used in emphatically rejecting precisely the same assertion that the opinion of Chief Justice Callahan now makes. Thus, as the court stated in Bivens, the defendant federal agents in that case — like the opinion of Chief Justice Callahan in this case — “seek to treat the relationship between a citizen and a federal agent unconstitutionally exercising his authority as no different from the relationship between two private citizens. In so doing, they ignore the fact that power, once granted, does not disappear like a magic gift when it is wrongfully used. An agent acting — albeit constitutionally — 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.” Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, supra, 403 U.S. 391-92.
The obvious and unambiguous import of this language repeatedly and expressly has been recognized. For example, Justice Harlan, in his concurring opinion in Bivens, addressed this precise issue when he observed that ‘‘the Court today properly points out that the type of harm, which officials cam, inflict when they invade protected zones of an individual’s life are different from the types of harm private citizens inflict on one another .... The injuries inflicted by officials acting under color of law, while
The concerns raised by Justice McDonald in his concurring and dissenting opinion are entirely unfounded. First, police officers who engage in constitutionally impermissible conduct already may be sued under 42 U.S.C. § 1983 and, like all other citizens, they also are subject to state common-law claims. It is hardly a startling proposition, therefore, that the police also may be held civilly liable for clear violations of our state constitution. More importantly, however, the egregious misconduct alleged to have
Concurrence in Part
with whom NORCOTT and MCDONALD, Js., join, concurring in part and dissenting in part. I agree with the conclusion of part I of the majority opinion, in which the majority determines that a cause of action for damages to redress infringements of the rights protected by article first, §§ 7 and 9, of the Connecticut constitution does not exist by virtue of the open courts provision of article first, § 10.1 disagree, however, with the majority’s creation in part II of a new direct constitutional cause of action for damages. Because the cause of action created by the majority is not capable of providing the plaintiffs with any relief additional to that already available, I believe that its creation is an inappropriate exercise of judicial power. I , therefore, respectfully dissent from the conclusion reached by the majority.
Courts that have confronted the issue of creating a cause of action for damages to redress alleged infringements of a constitutional right generally have based
I
In Bivens, the plaintiff brought an action against federal narcotics agents in the United States District Court,
The Court of Appeals affirmed the District Court’s order dismissing the plaintiffs action, but did so on other grounds. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 409 F.2d 718 (2d Cir. 1969), rev’d, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971). In the view of the Court of Appeals, the defendants had acted as government agents rather than as private individuals. Id., 721 (“[t]he fact that the officers were acting in violation of the Fourth Amendment’s restraints upon governmental action does not belie the plain fact that they were acting as government officials, and not in a private capacity”).
Having concluded that the plaintiffs claim had arisen under the federal constitution and consequently was within the subject matter jurisdiction of the federal courts, the Court of Appeals then considered whether “the constitutional right against unreasonable search and seizure could be enforced by the [federal] courts through the medium of private damage actions.” Id. Because “[t]he [fourth] Amendment’s prohibition against unreasonable search and seizure had its origin in several English cases which were damage actions for trespass”; id.; the court concluded that “the common law action of trespass, administered ... by the state courts”; id.; was the enforcement medium the drafters of the federal constitution had contemplated. Noting that federal law provides injunctive relief and the exclusionary rule, two remedies that “substantially vindicate the interests protected by the [fourth] Amendment”;
On appeal to the United States Supreme Court, therefore, the case presented three distinct issues: (1) whether the plaintiffs complaint had presented a federal question and consequently was within the subject matter jurisdiction of the federal courts; (2) whether the fourth amendment only limited the extent to which federal officials could assert an immunity defense in state tort actions, or also gave rise to an independent federal cause of action; and (3) if so, whether money damages were available pursuant to that cause of action.
Noting that the power possessed by federal agents “once granted, does not disappear like a magic gift when it is wrongfully used”; id., 392; the United States Supreme Court first determined that unconstitutional searches and seizures constitute government, rather than private, action, and that the plaintiffs complaint consequently was within the subject matter jurisdiction of the federal courts. Id.; see 28 U.S.C. § 1331 (a).
The United States Supreme Court next considered the defendants’ argument that the fourth amendment
Importantly, it was only after concluding that the plaintiffs complaint had stated a federal question and that the fourth amendment gave rise to an independent federal cause of action, that the United States Supreme
A
The majority asserts that the United States Supreme Court’s determination that damages should be available was based on a distinction between a special, unique harm occasioned by the infringement of fourth amendment rights by federal agents; see part II of the majority opinion; and the harm occasioned by infringement of common-law rights by private individuals. I disagree.
The United States Supreme Court did not conclude that the harm inflicted by infringements of fourth amendment rights is “special.” The court said that federal agents have a "greater capacity for harm”; (emphasis added) Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, supra, 403 U.S. 392; not that federal officials have a capacity for a greater harm. None of the examples
Moreover, the majority’s conclusion that unlawful intrusions by government officials implicate a “special” harm is not supported by either state or federal case law. Both this court and the federal courts have recognized that the injuries that result from the infringement of an individual’s fourth amendment rights are no different from those that are redressable pursuant to the common-law causes of action for battery, false arrest and intentional infliction of emotional distress. Virgo v. Lyons, 209 Conn. 497, 498-503, 551 A.2d 1243 (1988) (doctrine of collateral estoppel prevents plaintiff who seeks redress of injuries caused by unlawful intrusion by police officers from bringing separate state common-law action subsequent to litigation of plaintiffs federal constitutional claim; “[bjecause [a constitutional tort] provides a remedy in the form of damages for actual injuries suffered by reason of a violation of a plaintiff’s [fourth amendment] rights, it follows that the issue of damages for those same injuries cannot be relitigated in a state tort action” [emphasis in original and added]);
Furthermore, in subsequent cases in which a plaintiff sought to extend the availability of a Bivens-type remedy to violations of federal constitutional rights other than those protected by the fourth amendment, the United States Supreme Court has not revisited either the government action-private action dichotomy or the existence of a greater capacity for harm. Instead, the court simply has cited to Bivens as the basis for the plaintiffs federal claim before going on to consider whether judicial creation of a direct action for monetary damages was appropriate. The court’s determination regarding the availability of a damages remedy has rested solely on the availability of an adequate alternate federal remedy and the existence of special factors that counsel against creating a money damages remedy. See, e.g., Bush v. Lucas, 462 U.S. 367, 374, 103 S. Ct. 2404, 76 L. Ed. 2d 648 (1983); Davis v. Passman, 442 U.S. 228, 245, 99 S. Ct. 2264, 60 L. Ed. 2d 846 (1979). The Bivens line of cases indicates, therefore, that in the view of the United States Supreme Court, it is the assertion of federal authority, not any special or unique harm resulting from the unlawful exercise of that authority, that gives rise to the need for a federal tort claim against federal officials for violations of federal constitutional rights.
The majority distinguishes the circumstances of the present case from those presented in Kelley Property Development, Inc., by characterizing our conclusion in Kelley Property Development, Inc., that the Bivens rationale did not support creation of a state constitutional due process tort as having been based primarily on the doctrine of separation of powers. See part II of the majority opinion. I disagree with that characterization for the following two reasons. First, it is not accurate. We expressly indicated in Kelley Property Development, Inc., that the existence of a state common-law cause of action capable of providing redress for the plaintiffs injuries is an important factor to be considered in determining whether creation of a constitutional tort would be an appropriate exercise of judicial power. Kelley Property Development, Inc. v. Lebanon, supra, 226 Conn. 340-41 (plaintiff would not necessarily have prevailed even in absence of alternate statutory remedy because common-law tortious interference with business expectancy action was possible alternate source of reliei). Second, we did not discuss separation of powers in Kelley Property Development, Inc., until after we had declined, because an alternate form of adequate relief was available to the plaintiff, to create a damages action. Id., 339 (“[t]his conclusion accords with the constitutional principle of separation of powers”). Although our decision in Kelley Property Development, Inc., not to create a constitutional tort accords with the doctrine of separation of powers, in my opinion it cannot fairly be said to have rested on or to have been required by that doctrine.
Narrowly viewing the existence of an alternate statutory remedy solely as a separation of powers issue and reasoning that only a legislatively created remedy should forestall judicial action, the majority concludes that the availability of alternate state common-law relief
C
In its current configuration, therefore, the Bivens line of United States Supreme Court cases appears to require a would-be Bivens plaintiff to establish as a threshold matter that he or she would lack an adequate federal remedy if a federal constitutional damages remedy were not created by the court. See Kelley Property Development, Inc. v. Lebanon, supra, 226 Conn. 337-38. By analogy, therefore, in the present case, the Bivens rationale supports creation of a state constitutional damages remedy based on a violation of article first, §§ 7 and 9, only if the plaintiffs would lack an adequate state remedy if such a damages remedy were not created.
Counts three and four of the plaintiffs’ complaint allege that the defendants violated the rights of Joseph Binette under article first, §§ 7 and 9, of the state constitution by entering his home without a warrant and by using excessive and unreasonable force against him.
Unlike Bivens, however, Joseph Binette would not have lacked an adequate remedy for those injuries if a constitutional remedy was not created. The complaint states several common-law causes of action that are based on the conduct that he alleges in counts three and four. Relevant to this analysis are count thirteen, which alleges wrongful arrest, counts five and six, which allege assault and battery, and counts nine and ten, which allege intentional infliction of emotional distress.
By including a cause of action based on wrongful arrest, Joseph Binette implicitly has acknowledged that state common law is capable of fully redressing his alleged injuries. “False imprisonment, or false arrest, is the unlawful restraint by one person of the physical liberty of another.” Green v. Donroe, 186 Conn. 265, 267, 440 A.2d 973 (1982); see Outlaw v. Meriden, 43 Conn. App. 387, 392, 682 A.2d 1112, cert. denied, 239 Conn. 946, 686 A.2d 122 (1996). “Damages for false
Wrongful arrest, moreover, is not the only common-law cause of action capable of providing full redress. Joseph Binette has raised viable battery and intentional infliction of emotional distress claims as well. In order to recover damages under the theory of battery, he need show only that (1) the defendants’ conduct is actionable, (2) the defendants intended that conduct, and (3) the defendants’ conduct caused his injuries. W. Prosser & W. Keeton, Torts (5th Ed. 1984) § 9, pp. 39-41; see Lombardi v. Groton, 26 Conn. App. 157, 159, 599 A.2d 388 (1991), cert. denied, 221 Conn. 908, 600 A.2d 1361 (1992) (affirming award of damages for, inter alia, battery by police officers); Gutowski v. New Britain, 165 Conn. 50, 53-54, 327 A.2d 552 (1973) (assault and battery action against police officers; compensatory damages awarded for officers’ use of excessive force). Furthermore, in order to prevail under the theory of intentional infliction of emotional distress, Joseph Binette must show only that: (1) the defendants should have known that their conduct likely would cause him to suffer emotional distress; (2) the defendants’ conduct caused him to suffer severe emotional distress; and (3) the defendants’ conduct was extreme and outrageous. See DeLaurentis v. New Haven, 220 Conn. 225, 266-67, 597 A.2d 807 (1991). The seizure that Joseph Binette allegedly suffered as a result of the defendants’ conduct is evidence of severe emotional distress, and the defendants’ alleged use of clearly excessive force, if believed, is evidence of extreme and outrageous conduct. See Lombardi v. Groton, supra, 160. Thus, Joseph Binette
Like Joseph Binette, Janet Binette would not have lacked an adequate remedy for the injuries she attributes to the defendants’ alleged violations of her state constitutional rights if a state constitutional remedy was not created. Counts sixteen and seventeen of the complaint allege that the defendants violated Janet Binette’s rights under article first, §§ 7 and 9, of the state constitution by entering her home without a warrant, by threatening her with arrest and imprisonment and by forcefully pushing her, causing her to fall against a wall and over a table. The injuries that Janet Binette attributes to that conduct are mental pain and suffering, fear of injuiy, anguish, emotional trauma and discomfort.
The complaint states several common-law causes of action that are based on the conduct that Janet Binette alleges in counts sixteen and seventeen. Relevant to this analysis are count eighteen, which alleges assault and battery, and count twenty, which alleges intentional infliction of emotional distress.
In summary, Connecticut’s common law provides both plaintiffs with causes of action that are capable of providing not only adequate, but complete redress for any injuries that they prove are attributable to the defendants’ conduct. Accordingly, the rationale of the United States Supreme Court in the Bivens line of cases does not support judicial creation, under the circumstances of this case, of a cause of action for damages
II
The rationale of § 874A
I do not believe that a judicially created damages remedy is necessaxy, under the present circumstances, to assure the effectiveness of article first, §§ 7 and 9. As previously discussed, the damages remedy that the majority has created does not provide either of the plaintiffs with any relief to which they would not be entitled at common law. Because it cannot provide additional relief, the constitutional damages remedy is not a meaningful deterrent to future constitutional infringements, and, consequently, it neither furthers the purpose of article first, §§ 7 and 9, nor is necessary to assure their effectiveness. Accordingly, § 874A does not support judicial creation of a cause of action based directly on article first, §§ 7 and 9, of oxrr state constitution in this instance.
My objection to the creation, in this case, of a damages action based on article first, §§ 7 and 9, is not founded solely on the lack of support provided by the Bivens line of cases and § 874A of the Restatement (Second). More important, I also believe that its creation is an inappropriate exercise of judicial power for the following reasons.
First, the only way to reconcile the result in Kelley Property Development, Inc., with that reached by the majority
Second, the majority concludes that because of the “special” harm occasioned by infringements of article first, §§ 7 and 9, a constitutional tort is needed to effectuate “our citizenry’s interest in a remedy that enables them to seek fair and meaningful compensation for injuries arising from deprivations of constitutional magnitude.” See part II B of the majority opinion. Implicit in that conclusion is the assumption that the compensation potentially available to the plaintiffs pursuant to common-law causes of action would not constitute “fair and meaningful” redress. The common-law causes of action for false arrest, battery and intentional infliction of emotional distress, however, are capable of providing the plaintiffs with complete monetary compensation for their alleged injuries. The “specialness” that the majority attributes to the injuries that result from a police officer’s unconstitutional invasion of a person’s home, therefore, must be based on a qualitative, rather than quantitative, difference between those injuries and injuries that result from an unlawful intrusion by a private individual. Attempting to illustrate how the injuries that result from an unlawful invasion by a police
Moreover, the fact that the plaintiffs’ injuries allegedly resulted from an infringement of “constitutional magnitude” does not indicate that the damages potentially available to the plaintiffs pursuant to common-law causes of action would not constitute “fair and meaningful compensation.” Compensatory damages are designed to enable an aggrieved party to obtain complete compensation for injuries actually caused by an infringement of a legal right, not to enable an aggrieved party to obtain some amorphous compensation for the infringement itself. W. Prosser & W. Keeton, Torts (5th Ed. 1984) § 1, pp. 5-6, § 2, p. 7 and § 4, p. 20. In order to obtain compensatory damages, a plaintiff must establish not only a breach of a legal duty, but
Furthermore, noting that “[a] police officer’s legal obligation . . . extends far beyond that of his or her fellow citizens: the officer not only is required to respect the rights of other citizens, but is sworn to protect and defend those rights”; (emphasis in original); the majority concludes that it is “manifest” that a police officer’s breach of the officer’s constitutional duty implicates a unique harm. See part II B of the majority opinion. The crux of the majority’s argument appears to be, therefore, that it is a difference between a police officer’s constitutional duty and his or her common-law duty that makes the harm unique. The injury that a person sustains as a result of a tortfeasor’s unlawful action, however, is dependent not on the legal appellation or the contours of the duty that has been breached, but on the effect that the breach has had upon the victim. Even if we assume, arguendo, that it is somehow possible to distinguish the actual effect that unlawful conduct has had upon a person solely on the basis of the duty that has been breached, our conclusion in Virgo v. Lyons, supra, 209 Conn. 502, that the interests protected by the fourth amendment are similar to the interests protected by the relevant common-law torts
Third, the majority does not provide a workable framework for identifying which constitutional infringements give rise to “special” harms and which do not; nor do I believe that one exists. I cannot comprehend a principled basis for concluding, for example, that the harm that results from either the infringement of the constitutional right to “a public school education that is not substantially impaired by racial and ethnic isolation”; Sheff v. O’Neill, 238 Conn. 1, 24, 678 A.2d 1267 (1996); or the infringement of constitutional free speech rights is less “special” than the harm that results from the infringement of the constitutional right to be
Fourth, the majority appears to adopt a broad presumption in favor of recognizing constitutional torts to remedy the “special” harms that result from infringements of “constitutional magnitude.” See part IIB of the majority opinion (“the critical factors that persuaded us to reject a state Bivens-type remedy in Kelley Property Development, Inc., are absent here”). The majority, however, does not provide a’ principled basis for determining when “critical factors” are sufficiently compelling to overcome that broad presumption. For example, does the possibility that recognition of a constitutional tort might result in significant additional litigation not only support; see Kelley Property Development, Inc. v. Lebanon, supra, 226 Conn. 342; but also justify a decision not to recognize such a tort? In my view, it cannot properly be considered a compelling countervailing consideration. “[L]imitations upon the effective functioning of the courts arising from budgetary inadequacies should not be permitted to stand in the way of the recognition of otherwise sound constitutional principles.” Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, supra, 403 U.S. 411 (Harlan, J., concurring). Similarly, does the fact that recognition of a constitutional tort might result in additional avenues of liability not only support; see Kelley Property Development, Inc. v. Lebanon, supra, 342; but also justify a decision not to recognize a damages remedy? I do not believe that it can properly be considered a compelling countervailing consideration. “[I]f financial expense alone were such a factor, then by definition there could never be a Bivens type action for damages because a successful action for damages means financial expense for the defendants.” Id.,
Having allowed these plaintiffs, who have alternate common-law causes of action capable of providing them with complete redress, a constitutional cause of action that gives them nothing more than symbolic
See S. Bandes, “Reinventing Bivens: The Self-Executing Constitution,” 68 So. Cal. L. Rev. 289, 302 (1995) (Bivens methodology requires court to resolve three issues: (1) has there been violation of substantive constitutional provision; (2) is there cause of action; and (3) what remedies are appropriate; second and third questions are “the central, and separate, issues of the Bivens cases”).
The court noted three specific ways in which the propensity of federal officials for unlawful intrusions could exceed that of private individuals: (1) all hough local police assistance generally is available to forestall unlawful private intrusions, it likely is not available to forestall unlawful federal intrusions; (2) an individual is more likely to “consent” to an otherwise unlawful intrusion by officials asserting federal authority than to an unwelcome intrusion by a private person; (3) although under federal law consent
I do not believe that it can be seriously argued that if a federal common-law tort action had been available to Bivens, the result in Bivens would have been the same. It was in the context of rejecting the argument that the state courts and state common-law causes of action provided the only means by which a plaintiff could seek redress of alleged violations of his right, under the federal constitution, to be free from unreasonable search and seizure, that the court in Bivens, citing a frequently quoted passage from Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803), noted that “[t]he very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury." (Internal quotation marks omitted.) Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, supra, 403 U.S. 397; see S. Bandes, “Reinventing Bivens: The Self-Executing Constitution,” 68 So. Cal. L. Rev. 289, 325 (1995) (“[Bivens] recognized that federal rights are worthy of protection on their own terms”).
Counts three and four of the complaint, which state Joseph Binette’s state constitutional claims, allege that as a result of the defendants’ conduct, Joseph Binette suffered the following injuries: an epileptic seizure, headaches, soft tissue trauma and medical expenses. The counts of the complaint that state Joseph Binette’s common-law claims further allege that in addition to the injuries listed in counts three and four, Joseph Binette also suffered emotional trauma and damage to his reputation as a result of the defendants’ conduct.
I express no opinion as to the viability of Joseph Binette’s additional common-law claims.
I express no opinion as to the viability of Janet Binette’s other common-law claims.
Section 874A of the Restatement (Second) provides in relevant part: “When a legislative provision protects a class of persons by proscribing or requiring certain conduct but does not provide a civil remedy for the violation, the court may, if it determines that the remedy is appropriate in furtherance of the purpose of the legislation and needed to assure the effectiveness of the provision, accord to an injured member of the class a right of action, using a suitable existing tort action or a new cause of action analogous to an existing tort action.” Comment (a) to § 874A notes that the section applies to constitutional as well as statutory provisions. 4 Restatement (Second), supra, p. 301.
In Kelley Property Development, Inc., the plaintiff alleged that the defendants intentionally, knowingly and arbitrarily had abused their governmental authority to obstruct and delay a real estate development project, and that the defendants had known that the plaintiff was legally entitled to undertake the development, project. Kelley Property Development, Inc. v. Lebanon, supra, 226 Conn. 346-47 (Borden, J., dissenting). The plaintiff further alleged that by the time his rights were vindicated by a zoning appeal, the development project, was not viable, and that as a result of the unlawful delay, he had been forced to deed the property to financing banks to avoid foreclosure. Id., 347. Concluding that the zoning appeal process had provided the plaintiff with an adequate remedy, we declined to create a Bivens-type action. Id., 342-43. By contrast, in the present case, the majority concludes that state common-law causes of action that are capable of providing complete compensation for the plaintiffs’ injuries do not constitute adequate vehicles for redressing alleged deprivations of state constitutional search and seizure rights. The majority incongruously creates a constitutional tort that is not capable of providing the plaintiffs with additional meaningful relief. See part II of the majority opinion.
“A number of decisions have . . . barred [federal constitutional tort actions], citing the special factors rationale. The opinions . . . make little effort ... in any meaningful way, to distinguish cases demanding deference from others granting relief. That is hardly suiprising; special factors analysis is, by definition . . . unprincipled. A court creates distinct, standardless exceptions when it is worried that, in the future, it will be unable to live with the principle it announces. In the Bivens line of decisions, that principle is embodied in the presumption that personal constitutional harms are to be compensated. The special factors exception provides the Court an escape hatch . . . .” G. Nichol, “Bivens, Chilicky, and Constitutional Damages Claims,” 75 Va. L. Rev. 1117, 1125-26 (1989). “[YheBivens] methodology . . . makes it far too easy to deny relief in cases . . . where constitutional oversight would prove costly and inconvenient. The converse is also true. The inquiry’s dramatically open-ended nature makes it too simple . . . to grant relief in sympathetic cases like Carlson v. Green, [446 U.S. 14, 100 S. Ct. 1468, 64 L. Ed. 2d 15 (1980)] even though Congress may have provided an acceptable substitute remedy. The Bivens methodology . . . asks little more than whether it seems a good idea to recognize the claim. The . . . restraints of doctrine disappear. The result is a body of decisions that not only provides inadequate guidance to lower courts, but also raises real questions of authority. The . . . courts are empowered... to make constitutional provisions meaningful through the recognition of damages claims. Th,at does not mean, however, that judges can simply make it up, or refuse to make it up, as they go along.” (Emphasis added.) Id., 1128-29.
Concurrence in Part
concurring in part and dissenting in part. I join part II of the majority opinion, which concludes that we should recognize a common-law cause of action for violations of article first, §§ 7 and 9, of our state constitution for the policy reasons articulated in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971). I pointed out in my concurring and dissenting opinion in Kelley Property Development, Inc. v. Lebanon, 226 Conn. 314, 353-54, 627 A.2d 909 (1993), the following: “It is clear to me that when the government violates an individual’s state constitutional right, that individual should be made whole. Otherwise, the right would be an empty and meaningless one. To say that government should pay its way and bear the costs of its transgressions is like saying that people should tell the truth, earn their keep, and pay their debts. We can imagine exceptions to each of these maxims, circumstances under which we might be prepared to suspend their force, but they remain foundation stones of our moral order. [P. Schuck, Suing Government (1983) p. 112]. J. Friesen, ‘Recovering Damages for State Bills of Rights Claims,’ 63 Tex. L. Rev. 1269 (1985). The reasoning employed in [Bivens], which holds that a cause of action for damages is available for violation of the Fourth Amendment, is also applicable to violations of state constitutional rights. [W]here federally protected rights have been invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief. Bell v. Hood, 327 U.S. [678, 684, 66 S. Ct. 773, 90 L. Ed. 939 (1946)]. [Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, supra], 392.” (Internal quotation marks omitted.)
Nevertheless, I would not reach the issues raised in part I of the majority opinion because it is not necessary in view of our conclusion with respect to the Bivens
Accordingly, I disagree with part I of the majority opinion and concur with part II.
Notwithstanding the gratuitous comment in footnote 11 of the majority opinion, I assume that no one on this court questions the viability of Gentile v. Altermatt, 169 Conn. 267, 286, 363 A.2d 1 (1975), appeal dismissed, 423 U.S. 1041, 96 S. Ct. 763, 46 L. Ed. 2d 631 (1976), which holds “all rights derived by statute and the common law extant at the time of the adoption of article first, § 10, are incorporated in that provision by virtue of being established by law as rights the breach of which precipitates a recognized iqjury, thus being exalted beyond the status of common-law or statutory rights of the type created subsequent to the adoption of that provision. . . . The adoption of article first, § 10, recognized all existing rights and removed from the power of the legislature the authority to abolish those rights in their entirety. Rather, the legislature retains the power to provide reasonable alternatives to the enforcement of such rights. Where such reasonable alternatives are created, the legislature may then restrict or abolish the incorporated common-law or statutory rights.” (Citations omitted.)
Concurrence in Part
concurring in part and dissenting in part. I join in part II of the majority opinion but write separately because I disagree with the analysis in part I.
The plaintiffs contend that we should recognize a damages remedy to redress violations of rights protected under article first, §§ 7 and 9, of our state constitution. They advance two alternative bases for a damages remedy: (1) Connecticut common law, prior to 1818, provided damages for the violation of rights that were substantially similar to the constitutional rights they allege were violated and, therefore, according to Kelley Property Development, Inc. v. Lebanon, 226 Conn. 314, 331-33, 627 A.2d 909 (1993), article first, § 10, of the Connecticut constitution incorporates a constitutionally based damages remedy; and (2) we should infer a common-law cause of action from article
There are two parts to the analysis of the plaintiffs’ first claim. The first question is whether our early common law permitted damages actions against government officials for violating rights analogous to those now protected by article first, §§ 7 and 9, of our state constitution. If the answer to that question is yes, the second part of the analysis depends upon whether proper recognition of these fundamental constitutional rights requires that their violation be vindicated directly under the state constitution or whether an alternative common-law or statutory remedy will suffice. The majority recognizes that fundamental rights, which existed at common law prior to 1818, and which were also codified separately in our state constitution under article first, §§ 7 and 9, are directly involved in this case. The majority, however, reaches out to hold that article first, § 10, of the state constitution does not guarantee the plaintiffs the right to bring a claim directly under article first, §§ 7 and 9. I agree with the majority as to the first part of the analysis but would not close the door to recognizing a direct constitutional remedy.
Connecticut’s first constitution, adopted in 1818, formally established our governmental structure and included a declaration of rights to safeguard individual liberties. The declaration of rights appeared in article first, §§ 1 through 21, of the 1818 constitution. Article first, §§ 8 and 10, concerning, respectively, searches and seizures and arrests, were identical to their current counterparts, article first, §§ 7 and 9. Connecticut, however, had a declaration of rights and a “constitution,” as this term was understood at the time, dating from the first half of the seventeenth century. C. Collier, “The Connecticut Declaration of Rights Before the Constitution of 1818: A Victim of Revolutionary Redefinition,”
During the preconstitutional period, individual rights, including the right to be free from the abuse of governmental power, were highly valued and well protected. Zephaniah Swift, a former chief justice and author of our state’s first legal text, noted in 1795 that the right of personal liberty was “sacred and inestimable” and that “without [it] all others [were] of little value . . . .” 1Z. Swift, A System of the Laws of the State of Connecticut (1795) p. 180. Swift confirmed that governmental power emanated from the people; id., p. 59; and noted, moreover, that “[n]o individual, or body of men, have a discretionary, or arbitrary power to commit any person to prison; no man can be restrained of his liberty ... or be in any way imprisoned, or confined, unless by virtue of the express laws of the land. These laws are so clear and explicit, that it is in the power of every man to avoid breaking them . . . .” Id., p. 180.
The earliest of these “clear and explicit” laws protecting individual rights was the declaration of rights, which appeared in the preamble to Connecticut’s first statutory code, Ludlow’s Code of 1650. See C. Collier, supra, 15 Conn. L. Rev. 91-93. Although it was statutory in form, the declaration was “treated by both the legislature and the people as standing above ordinary statutes. The Declaration and supplementary statutes relating to individual rights were grounded in the Connecticut
During the thirty years preceding Connecticut’s constitution, however, confidence in the common law’s ability adequately to safeguard individual rights gradually eroded as post-Revolutionary leaders embraced a different, political ideology than had their pre-Revolu-tionary counterparts. Id., 87. Although in 1787, Connecticut’s pre-Revolutionary delegates to the federal constitutional convention opposed a bill of rights, confident that strong state governments would protect individual rights, by 1818, the majority of Connecticut’s new generation of leaders recognized the need for constitutional guarantees of individual rights. Id., 95.
Plaintiffs sought protection at common law for individual rights by using traditional common-law forms of pleading because only a limited number of causes of action existed at the time to redress private wrongs. Despite the use of traditional tort nomenclature, both this court and commentators have recognized that these cases were early common-law antecedents of our constitution. One commentator explained that early Connecticut cases reached “ ‘constitutional’ results by reference to ordinary common law explication”; E. Peters, “Common Law Antecedents of Constitutional Law in Connecticut,” 53 Alb. L. Rev. 259, 262 (1989);
In deciding that the plaintiff may properly bring a state Bivens claim for a violation of article first, §§ 7 and 9, the majority recognizes the fundamental rights at stake in this case, and the special harm likely to result from unlawful police conduct. The majority, quoting Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, supra, 403 U.S. 392, stated that a police officer acting unlawfully in the name of the state “ ‘possesses a far greater capacity for harm than an individual trespasser exercising no authority other than his own.’ ”
Nevertheless, despite the language in Kelley Property Development, Inc. v. Lebanon, supra, 226 Conn. 333, suggesting that article first, § 10, of the Connecticut constitution incorporates a constitutionally based damages remedy, the majority concludes that the open courts provision contained in article first, § 10, of our state constitution does not ensure the existence of that remedy through a direct cause of action under article first, §§ 7 and 9.1 fail to understand why, in light of the majority’s decision recognizing a Bivens common-law cause of action under article first, §§ 7 and 9, the majority reaches the plaintiffs’ claim under article first, § 10, particularly when to reject the open courts claim, the
The plaintiff in Kelley Property Development, Inc., claimed that, because a common-law damages action existed prior to 1818 to redress the violation of rights analogous to due process rights, article first, § 10, ensured the continued existence of such a damages remedy. Id., 332. We determined, however, that the early cases relied upon by the plaintiffs awarded damages for a statutory violation, rather than “a violation of a fundamental common law principle that we would now characterize as having constitutional significance.” Id. We stated that, “[i]n the absence of a clear indication . . . that the damages awards in those cases redressed rights akin to fundamental constitutional rights, we decline to read these cases as establishing a common law precedent for the existence of a constitutional claim for damages . . . .” Id., 333. We concluded that the plaintiff “failed to establish that, in the circumstances of this case, a damages action for the violation of a quasi-constitutional right existed at common law in Connecticut prior to 1818 and thereby became incorporated into the state constitution by virtue of article first, § 10.” Id.
In this case, the plaintiffs contend that Kelley Property Development, Inc., stands for the proposition that a damages claim may be brought directly under the state constitution for the violation of state constitutional rights if: (1) our pre-1818 common law awarded damages to vindicate analogous rights; and (2) such rights were understood at the time to be fundamental. The majority disagrees and, indeed, expressly rejects this constitutional principle, concluding that the plaintiffs in the present case have not sufficiently demonstrated why the constitutional principle articulated in Gentile v. Altermatt, 169 Conn. 267, 286, 363 A.2d 1
Although we did not hold explicitly in Kelley Property Development, Inc., that a claim for damages under the state constitution could be brought where both predicates of the test enunciated therein have been satisfied, both our reliance on the open courts provision and our analysis in that case implicitly recognized the existence of a remedy for violations of state constitutional rights. In light of our reliance on Gentile v. Altermatt, supra, 169 Conn. 286-87, and its use of the open courts provision to prevent legislative abrogation of constitutionally incorporated rights, an argument could be made that, under that provision, the legislature has less leeway to modify fundamental rights than it would have with respect to other rights recognized under the common law. Furthermore, just as those rights are entitled to greater protection from legislative intervention than other, less important common-law rights, one could argue that these fundamental rights should be recognized as having an enhanced status by virtue of their incoiporation into the state constitution.
Accordingly, I dissent from the decision reached by the majority on the first issue and concur with its decision on the second issue.
These rights continued to be vindicated through damages actions against government officials after the adoption of the constitution. See Perry v. Johnson, 37 Conn. 32, 36 (1870) (constable and justice of peace liable for arrest based on unlawful warrant); Humphrey v. Knapp, 41 Conn. 313, 316-17 (1874) (justice of peace liable for unlawful detention); Clyma v. Kennedy, 64 Conn. 310, 320-21,29 A.2d 539 (1894) (damages against justice and constable upheld in action for false imprisonment); McVeigh v. Ripley, 77 Conn. 136, 141, 58 A.2d 701 (1904) (false imprisonment action for damages against justice of peace).
Several other decisions reiterate that these common-law actions redressed the violation of fundamental individual liberty rights. In Tracy v. Williams, 4 Conn. 107, 112 (1821), this court held a justice of the peace liable in trespass for authorizing a warrantless arrest because “[o]ur statute, in its requisitions, is founded on a regard [for] the rights of the citizen .... This mode of proceeding is equitable, practicable, and free from oppression; while the public rights are adequately protected.” In Gray v. Davis, 27 Conn. 447, 455 (1858), this court articulated that the search and seizure provision of the constitution “was obviously intended mainly for the security of the citizen, that his possessions might not be wantonly invaded, at the discretion, caprice or malice either of private individuals, or of the ministers of the law.” In Price v. Tehan, 84 Conn. 164, 79 A. 68 (1911), an officer was liable for a warrantless arrest. Liability was imposed because he “failed to keep himself under that control which is required of an officer and to act with that regard for the rights of the individual which the law demands before he deprives a person of his liberty. The law . . . cannot overlook the rights
In rejecting the plaintiffs first claim, the majority states that it does not necessarily follow from Gentile that article first, § 10, embodies a private cause of action for pre-1818 fundamental common-law rights. The majority states that it is not foreclosing some other litigant the opportunity to make the claim but, rather, is merely rejecting an assumption on which the plaintiff relied. I disagree with this characterization. In interpreting Gentile as it does and in conducting only a cursory analysis of our article first, § 10 jurisprudence, 1he majority, in effect, rejects the proposition that a direct constitutional action is viable. Furthermore, if in fact the majority had found that the open courts provision required a direct constitutional claim in this case, it would not have engaged in a Bivens analysis.
Even where a case has presented more than one constitutional basis for a decision, we have declined to reach the other issues where the appeal could be resolved on one alone. Fair Cadillac-Oldsmobile Isuzu Partnership v. Bailey, 229 Conn. 312, 313, 640 A.2d 101 (1994) (court declined to reach alternative state constitutional grounds for ruling statute unconstitutional where General Statutes § 53-301 found to violate substantive due process under article first, § 8, of Connecticut constitution); State v. Joyce, 229 Conn. 10, 15 and n.6, 639 A.2d 1007 (1994) (court declined to reach federal constitutional claim where appeal could be resolved on state constitutional grounds).
Concurrence in Part
concurring in part and dissenting in part. I concur with Chief Justice Callahan’s concurring and dissenting opinion.
The majority opinion’s chilling effect on law enforcement officers is unreasonable, dangerous, and obstructs the government’s constitutional responsibility to “insure domestic Tranquility” and provide for the public safety. U.S. Const., preamble; see United States v. Kelner, 534 F.2d 1020, 1026 (2d Cir. 1976). Police officers are often called upon, alone and in danger, to make split second decisions to conduct searches to protect the public’s safety or their own. They may rely upon United States Supreme Court decisions and yet be forced to pay damages for intricate state constitutional violations. Police officers should not face the choice between being carried by six pall bearers or having a like number of jurors take away their home.