CONSTITUTIONAL TORTS: SUING THE GOVERNMENT, PART IV

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The Evolution of Constitutional Tort Remedies: Parallel Developments in Section 1983 and Bivens Litigation

The Supreme Court’s treatment of constitutional tort remedies has profoundly shaped how individuals can hold government officials accountable for constitutional violations. This jurisprudential evolution reveals the Court’s ongoing effort to balance effective rights enforcement against practical governance concerns. See Richard H. Fallon, Jr., Bidding Farewell to Constitutional Torts, 107 Calif. L. Rev. 933 (2019).

Section 1983’s Expansion and Refinement

Monroe v. Pape, 365 U.S. 167 (1961), marked a watershed moment by interpreting § 1983’s “under color of” state law requirement to encompass unauthorized official conduct. This expansive reading empowered citizens to challenge constitutional violations in federal court, particularly in cases involving police misconduct. See Michael Wells, Constitutional Remedies, Section 1983 and the Common Law, 68 Miss. L.J. 157 (1998).

The Court further developed § 1983’s reach in Monell v. Department of Social Services, 436 U.S. 658 (1978), which subjected municipalities to liability while requiring plaintiffs to prove that an official policy or custom caused their constitutional injury. City of Canton v. Harris, 489 U.S. 378 (1989), later clarified that municipalities could face liability for failing to train officials, but only upon showing “deliberate indifference” to constitutional risks. See Barbara E. Armacost, Organizational Culture and Police Misconduct, 72 Geo. Wash. L. Rev. 453 (2004).

The Court has also delineated substantive constitutional boundaries in § 1983 cases. Paul v. Davis, 424 U.S. 693 (1976), established that mere reputational harm cannot support a due process claim without additional liberty or property deprivation. DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989), confirmed that due process generally imposes no affirmative duty to protect individuals from private harm. See Susan Bandes, The Negative Constitution: A Critique, 88 Mich. L. Rev. 2271 (1990).

The Development of Immunity Doctrines

Immunity doctrines have significantly shaped both § 1983 and Bivens litigation. Pierson v. Ray, 386 U.S. 547 (1967), first recognized qualified immunity for police officers acting in good faith. Harlow v. Fitzgerald, 457 U.S. 800 (1982), then reformulated this protection to shield officials unless their conduct violated “clearly established” constitutional rights. See John C. Jeffries, Jr., What’s Wrong with Qualified Immunity?, 62 Fla. L. Rev. 851 (2010).

Lower courts have struggled to define qualified immunity’s specificity requirements, typically demanding that plaintiffs identify precedent demonstrating the clear unconstitutionality of challenged conduct. This framework has created significant barriers for civil rights plaintiffs. See Joanna C. Schwartz, How Qualified Immunity Fails, 127 Yale L.J. 2 (2017).

The Transformation of Bivens Jurisprudence

While Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), initially recognized implied constitutional remedies against federal officers, the Court has systematically restricted its application. Ziglar v. Abbasi, 137 S. Ct. 1843 (2017), marked a decisive shift by requiring courts to conduct an exacting “special factors” analysis before extending Bivens to new contexts. This analysis typically precludes remedies in cases involving national security, executive policy, or other sensitive domains. See Carlos M. Vázquez & Stephen I. Vladeck, State Law, the Westfall Act, and the Nature of the Bivens Question, 161 U. Pa. L. Rev. 509 (2013).

Hernández v. Mesa, 140 S. Ct. 735 (2020), exemplified this restrictive approach when the Court rejected a Bivens remedy for a cross-border shooting by a Border Patrol agent. The decision emphasized that international relations and national security concerns preclude judicial creation of new constitutional remedies absent congressional authorization. See Andrew Kent, Are Damages Different?: Bivens and National Security, 87 S. Cal. L. Rev. 1123 (2014).

Contemporary Implications and Future Directions

The Court’s treatment of constitutional tort remedies reflects fundamental tensions between rights enforcement and governmental efficiency. While § 1983 maintains its statutory foundation, judge-made doctrines like qualified immunity and municipal liability requirements significantly constrain its reach. The Court has even more dramatically limited Bivens by directing novel claims toward legislative solutions rather than judicial innovation. See Alexander A. Reinert, Measuring the Success of Bivens Litigation and Its Consequences for the Individual Liability Model, 62 Stan. L. Rev. 809 (2010).

This evolution suggests a judicial preference for legislative solutions to governmental accountability challenges. The resulting framework carefully channels constitutional tort remedies while preserving established avenues for addressing core constitutional violations. As constitutional litigation continues to evolve, these doctrinal constraints will likely remain central to determining when and how individuals can seek redress for governmental misconduct.​​​​​​​​​​​​​​​​

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