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Ricky Brown, et al. v. State of New York, 89 N.Y.2d 172 (November 19, 1996).

CONSTITUTIONAL TORTS - COMMON LAW TORTS - SOVEREIGN IMMUNITY - JURISDICTION OF COURT OF CLAIMS

THE COURT FOUND A CAUSE OF ACTION FOR DAMAGES IN CONSTITUTIONAL TORT AND DECLARED STATE IMMUNITY INAPPLICABLE.

[SUMMARY] | [ISSUE & DISPOSITION] | [AUTHORITIES CITED]| [COMMENTARY]

SUMMARY

A class action suit was brought on behalf of non-white males who were stopped and examined by police while the police were investigating a crime in the City of Oneonta. Petitioners seek monetary damages from Respondent alleging illegal and unconstitutional acts by the State of New York, the New York State Police, the State University of New York and the State University of New York, College of Oneonta ("SUCO").

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 Division affirmed.

ISSUE & DISPOSITION

Issue

Whether the Court of Claims has subject matter jurisdiction over constitutional tort claims or is limited to common law tort actions.

Whether Petitioners state causes of action upon which they may recover damages from Respondent.

Disposition

Yes. The Court of Claims has jurisdiction over claims against the state based upon violations of the New York State Constitution and is not limited to common law tort causes of action. The claims based on violations of Article 1 § 11 & § 12 of the New York Constitution were sustained. The claim for negligent training and supervision was found to state a cause of action against Respondent and reinstated. The remaining causes of action were dismissed. The order of the Appellate Division was modified, without costs, and the case remitted to the Court of Claims for further proceedings in accordance with the opinion and, as modified, affirmed.

AUTHORITIES CITED

Cases Cited by the Court

Other Sources Cited by the Court

  • John M. Baker, The Minnesota Constitution as a Sword: The Evolving Private Cause of Action, 20 Wm. Mitchell L. Rev. 313 (1994).
  • Susan Bandes, Reinventing Bivens: The Self-Executing Constitution, 68 S. Cal. L. Rev. 289 (1995).
  • Michael Wells & Thomas A. Eaton, Substantive Due Process and the Scope of Constitutional Torts, 18 Ga. L. Rev. 201 (1984).
  • Christina Whitman, Constitutional Torts, 79 Mich. L. Rev. 5 (1980).

Cases Relied on by the Dissent

Other Sources Cited by the Dissent

  • William Burnham, Separating Constitutional and Common Law Torts: A Critique and a Proposed Constitutional Theory of Duty, 73 Minn. L. Rev. 515 (1989).
  • Theodore Eisenberg & Stewart Schwab, The Reality of Constitutional Tort Litigation, 72 Cornell L. Rev. 641 (1987).
  • Bennett L. Gershman, Supervisory Power of the New York Courts, 14 Pace L. Rev. 41 (1994).
  • John McNamara, Jr., The Court of Claims: Its Development and Present Role in the Unified Court System, 40 St. John's L. Rev. 1 (1965).
  • Robert Pitler, Independent State Search and Seizure Constitutionalism: The New York State Court of Appeals' Quest for Principled Decisionmaking, 62 Brook. L. Rev. 1 (1996).
  • Perry Rosen, The Bivens Constitutional Tort: An Unfulfilled Promise, 67 N.C. L. Rev. 337 (1989).
  • Marshall Shapo, Constitutional Tort: Monroe v. Pape, and the Frontiers Beyond, 60 Nw. U. L. Rev. 277 (1965).

RELATED SOURCES

COMMENTARY

State of the Law Before Brown v. State

The question presented in this case is unique and has not been specifically addressed in prior decisions of New York courts. Various aspects of this case have been discussed in earlier decisions by the lower courts in New York and analogous cases have been decided in the United States Supreme Court.

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).

Effect of Brown v. State on Current Law

The court's decision widens the state's potential liability for fundamental rights' violations and broadens the protection granted by the state constitution. Prior to this holding, the only remedies available to those bringing claims for constitutional torts were injunctions and declaratory relief. Brown v. State, 1996 N.Y. Int. 217, para. 34 (N.Y. 1996). Previous New York cases held that state government was largely immune to civil suits brought against state agencies that allegedly violated state constitutional protections. See Arteaga v. State, 72 N.Y.2d 212, 215-216 (N.Y. 1988); Tarter v. State of New York, 68 N.Y.2d 511, 518-519 (N.Y. 1986); Weiss v. Fote, 7 N.Y.2d 579, 585-587 (1960). Partially because neither an injunction nor declaratory relief would be a sufficient remedy, the Brown Court recognized a right to damages.

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).

Dissent

Justice Bellacosa contends that the majority's decision wrongfully creates new subject matter jurisdiction for the Court of Claims. Citing Bennett L. Gershman, Supervisory Power of the New York Courts, the dissent states that it is within the exclusive purview of the legislature to define subject matter jurisdiction. 1996 N.Y. Int. 217 at dissent para. 55 (citing 14 Pace L. Rev. 41 (1994)). Indeed, the dissent points out that the New York Constitution states that "[t]he court shall have jurisdiction to hear and determine claims against the State or by the State against the claimants or between conflicting claimants as the legislature may provide." N.Y. Const. art. VI, § 9.

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.

Unanswered Questions

The court limits its holding to Sections 11 and 12 of Article 1 of the New York State Constitution. Consequently, it is unclear whether the rationale announced by the court will be applicable to all parts of the state constitution. The court's language leaves open the possibility that other constitutional provisions could be analyzed under a different framework than the one provided in this case.

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.

Survey of the Law in Other Jurisdictions

State court responses to the question of whether a plaintiff can assert a cause of action directly under a state constitutional guarantee have been mixed. A slight majority of states allow such claims. Some states have addressed the issue head on while others have made suggestions only in dicta. California has addressed this issue most often and did so even before Bivens. As early as 1931, California courts allowed a damage action arising under the implied constitutional right of privacy. See Melvin v. Reid, 297 P. 91, 93 (Cal. App. 1931). California courts also adopted the most aggressive stance allowing for actions arising directly from a state constitutional guarantee in Gay Law Students Association v. Pacific Telephone & Telegraph. 595 P.2d 592 (Cal. 1979). This case, arising under the California equal protection clause, departed from federal law by expanding the classes protected by the equal protection clause to include sexual preference and applied the state constitution to some private actors. See id. at 598. Other states support a plaintiff's right to assert a claim directly under a state constitutional guarantee. See Ashton v. Brown, 660 A.2d 447 (Md. Ct. App. 1995) (recognizing a damage claim arising directly from violations of due process under the Maryland constitution); Phillips v. Youth Dev. Program, Inc., 459 N.E.2d 453, 457 (Mass. 1983) ("We would grant, however, that a person whose constitutional rights have been interfered with may be entitled to judicial relief even in the absence of a statute providing a procedural vehicle for obtaining relief."); Hunter v. Port Auth. of Allegheny County, 419 A.2d 631 (Pa. Super. Ct. 1980) (finding that a plaintiff had stated a cause of action under the Pennsylvania constitution's natural rights provision seeking equitable relief but leaving open the question on the availability of money damages); Walinski v. Morrison & Morrison, 377 N.E.2d 242 (Ill. App. Ct. 1978) (holding that a plaintiff could seek both compensatory and punitive damages for violations of a housing and employment discrimination clause of the Illinois constitution); Peper v. Princeton Univ. Bd. of Trustees, 389 A.2d 465 (N.J. 1978) (recognizing a direct cause of action under the New Jersey Constitution's natural rights guarantee).

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).

Prepared By:

  • Scott M. Davies, 97
  • Andrew F. Fowler, 98
  • John A. Jeziorski, 98
  • Anita J. Lee, 98
  • Marc E. Mangum, 97
  • Reese E. Solberg, 97
  • Joymarie Torres, 98