On September 4, 1992, an elderly white woman reported an attack at knife point near the State University campus. She described her attacker as a black male, and the police determined that the attacker may have cut his hand during the attack. Unable to identify a suspect, the state police and SUCO security requested that the university generate a list of all African-American males attending the college. The state police, SUCO security, and local law enforcement proceeded to question each student on the list. Questioning consisted of an inquiry into the student's possible involvement in the attack, a request for an alibi, and an inspection of the student's hands and forearms.
When the interrogations failed to reveal the attacker, the New York State Police and local law enforcement launched a five-day "street sweep" in which every non-white male found in or around the City of Oneonta was stopped and similarly interrogated. Petitioners argue that Respondent's conduct was racially motivated and denied them rights guaranteed by the state and federal constitution. In particular, Petitioners argue that Respondent violated the Fourth Amendment of the United States Constitution, thereby violating 42 U.S.C. § 1981. They also argue their Fourteenth Amendment rights were infringed, thereby violating 42 U.S.C. § 1981. In addition, Petitioners allege that Respondent's conduct violated Article 1 § 11 & § 12 of the New York State Constitution and Article 4 § 40-c of the New York Civil Rights Law. Finally, Petitioners seek damages for the negligent training and/or supervision of officers and investigators under 42 U.S.C. § 1981.
New York State moved to dismiss the claim on the grounds that it failed
to state a cause of action and that the court lacked subject matter jurisdiction.
The Court of Claims granted the motion, holding that (a) constitutional
torts are not cognizable in the Court of Claims; (b) actions for the violations
of the New
York Constitution's Bill of Rights are not cognizable claims absent
a link to a common law "traditional" tort; (c) actions for negligent training
and supervision are not cognizable claims in the Court of Claims; and (d)
actions based on 42
U.S.C. § 1981 cannot be brought against the state. The Appellate
Whether Petitioners state causes of action upon which they may recover damages from Respondent.
A "constitutional tort" was first recognized by the Supreme Court in Monroe v. Pape, 365 U.S. 167 (1961). In Monroe, the Supreme Court held that an individual may bring an action against a state actor for violating a constitutional right under 42 U.S.C. § 1983. The court later expanded the rights of individuals to bring actions for constitutional violations in Bivens v. Six Unknown Named Agents of The Federal Bureau of Narcotics, 403 U.S. 388 (1971). The Bivens court held that an implied cause of action exists under the Fourth Amendment and need not rest solely upon a civil rights statute such as 42 U.S.C. § 1983. Prior to this case, New York has had neither a civil rights statute which would allow for the recovery of damages for the deprivation of a constitutional right nor a judicial decision recognizing an implied right of recovery based upon a constitutional provision.
New York cases have discussed various issues which form the basis of the Court's decision in Brown v. State. For instance, though the specific question of whether the Court of Claims has jurisdiction to hear constitutional tort claims has not been determined by the Court of Appeals, the question of the breadth of the jurisdiction of the Court of Claims has been discussed in at least one early decision. In Smith v. State, the Court of Claims was given broad jurisdictional discretion. 227 N.Y. 405 (1920), reh'g denied 229 N.Y. 571 (1920). However, the Smith court dismissed the claim where the state had not waived its liability. In response to the Smith decision the legislature enacted the Court of Claims Act § 8 which states in relevant part, "The state hereby waives its immunity from liability and action and hereby assumes liability and consents to have the same determined in accordance with the same rules of law as applied to actions in the supreme court against individuals or corporations."
After the Smith decision and the subsequent legislation, the Court of Claims decided several cases containing constitutional claims. See Doe v. State of New York, 155 Misc. 2d 286, 297-298 (N.Y. Ct. Cl. 1992); Bouson v. Samperi, 61 N.Y.2d 219 (N.Y. Ct. Cl. 1984). The Court of Claims has also accepted jurisdiction of constitutional torts which were tied to a common law tort or violated defined procedures. Dean v. State of New York, 111 Misc. 2d 97 (N.Y. Ct. Cl. 1981) (holding that a forcible entry into the petitioner's home by police officers based on a negligently obtained warrant violated the petitioner's constitutional rights under N.Y. Const. art. I § 12).
The court's holding greatly expands the potential vicarious liability of the state for the actions of its police agents. The majority holds that this new respondeat superior liability is the "most effective means of deterring police misconduct. . . " Brown v. State, 1996 N.Y. Int. 217, para. 44-45 (1996). The dissent notes that this may result in a deluge of lawsuits against the state.
The new ruling offers substantially broader protections under the New York Constitution than are available under the United States Constitution. Monell v. New York City Dep't of Social Servs., 436 U.S. 658, 663 (1978). The holding raises constitutional violations to the same status as common-law tort injury claims against the state. Formerly, a plaintiff who could bring a personal injury suit for damages against the state for infliction of bodily harm could not bring a similar suit for violation of constitutional guarantees. Now, such violations are put on the same footing, and damages are available for both.
Both the majority and dissent agree that there is some risk of increased litigation. The majority states that the affirmation of the value of the constitutional guarantees is worth such a risk. The holding is confined to only two rights. However, a trend toward recognition of a damage remedy in the area of constitutional torts may lead to similar findings with regard to freedom of religion, speech, and other fundamental rights. Yet, as the majority notes, the New York Legislature may express its reservations by reaffirming sovereign immunity in this context. Brown v. State, 1996 N.Y. Int. 217, para. 45 (1996).
The dissent argues that the definition of tort with respect to subject matter jurisdiction should be limited. It believes that the tort remedy should be limited and cannot be applied without legislative expansion of subject matter jurisdiction. Arguing that there is no support for the majority's definition of constitutional torts, the dissent claims that this new tort has no common law antecedent. According to the dissent, the United States Supreme Court has been reluctant to equate constitutional torts with common law torts. Farmer v. Brennan, 511 U.S. 825, (1994); Daniels v. Williams, 474 U.S. 327, 332 (1986); Carey v. Piphus, 435 U.S. 247, 258-259 (1978).
The dissent claims that the majority's decision wrongfully creates a new cause of action due to their misplaced reliance on Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Contrary to the majority's reasoning, Bivens has inherent limitations as reflected in the holding of Federal Deposit Ins. Corp. v. Meyer. 510 U.S. 471 (1994). The dissent notes that the Supreme Court stated that the Bivens holding was intended to deter misconduct by individual officers and did not imply a damage action against federal agencies. Cf. Federal Deposit Ins. Corp., 510 U.S. 471.
With respect to remedies, the dissent questions the validity of the majority's conclusion that a private action for damages is available. Under its analysis, even if the Equal Protection and Search and Seizure Clauses of the State Constitution are "self-executing", the dissent holds that specific legislative action is required to enact a private damages remedy.
The dissent also has qualms about the potential flood of lawsuits. Because the right to be free from unlawful search and seizure was implicated by the holding, the dissent notes that a violation of the proper procedure by police could allow a defendant to sue for monetary damages. Thus, every motion to suppress evidence due to unlawful search could be accompanied by a notice of claims against the state for damages.
Given the New York Court of Appeals' expansion of constitutionally based causes of action, the question arises whether the court will continue to expand these rights. A related issue is whether the legislature will limit these rights. Another question is whether such an expansion of rights will result in significant increase in the number of claims against the state for damages. Inherent in these increases is the possibility that courts may be reluctant to dismiss such claims, as they have traditionally been. If so, the potential for significant increases in administrative and fiscal costs for the state is all the greater.
The majority holds that Petitioners' first five causes of action, based on violations of 42 U.S.C. § 1981 were properly dismissed because the state "was not a 'person' within the meaning of the statute ... [and because] the doctrine of respondent superior [did not apply to] actions based on the statute." Brown v. State, 1996 N.Y. Int. 217, para. 59 (1996). Despite this holding, the court reinstates claim eleven for the negligent training and/or supervision of officers and investigators also based on 42 U.S.C. § 1981. This apparent inconsistency remains unresolved and unexplained.
Although California has been a leader among states allowing constitutional tort claims, it has also restricted them. For instance, California courts have uniformly dismissed claims for damages when brought to enforce the constitutional right to "safe schools." See Leger v. Stockton Unified Sch. Dist., 202 Cal. App. 3d 1448 (Cal. Ct. App. 1988). For other states that have disapproved of compensatory remedies arising under a constitutional guarantee, see Dick Fischer Dev. No. 2, Inc. v. Department of Admin., 838 P.2d 263 (Alaska 1992) (rejecting a Bivens type approach under the Alaska constitution except in the most flagrant circumstances); Figueroa v. State, 604 P.2d 1198 (Haw. 1979) (using sovereign immunity to bar suits over state constitutional rights against the state itself).