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THE LIABILITY RULE FOR CONSTITUTIONAL TORTS
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THE LIABILITY RULE FOR CONSTITUTIONAL TORTS
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THE LIABILITY RULE FOR CONSTITUTIONAL TORTS
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Journal Article
THE LIABILITY RULE FOR CONSTITUTIONAL TORTS
2013
Overview
There is no liability rule for constitutional torts. There are, rather, several different liability rules, ranging from absolute immunity at one extreme to absolute liability at the other. The choice among them does not depend, as the proverbial Martian might expect, on the role of money damages in enforcing particular rights. The right being enforced is irrelevant to constitutional tort doctrine. What matters instead is the identity of the defendant or the act she performs. States and state agencies are absolutely immune from damages liability for violations of constitutional rights, no matter how egregious their conduct may be. The same is true for those who perform legislative, judicial, and certain prosecutorial actions. In contrast, local governments are strictly liable for constitutional violations committed pursuant to official policy or custom, even if the right found to have been violated was first recognized after the conduct triggering liability. Most defendants - including federal, state, and local officers - are neither absolutely immune nor strictly liable. Instead, they are protected by qualified immunity, a fault-based standard approximating negligence as to illegality.
