Are State Court Immunities for Fourth Amendment Torts Unconstitutional?

In a response to my recent post, Originalism and Civil Damages for Fourth Amendment Violations, Michael Ramsey argues at The Originalism Blog that there is a way to square originalist opposition to the exclusionary rule with originalist embrace of doctrines cutting back on Fourth Amendment civil remedies. The basic idea is that the civil causes of action such as Bivens and Section 1983 that the Court often interprets are not the true descendants of the civil causes of actions at common law, but rather are special federal causes of action that exist in addition to those remedies. At common law, the law of search and seizure was a defense to a tort suit. If the King’s officials entered a home with a warrant, the homeowner could sue for trespass, and the valid warrant would serve as an affirmative defense. Ramsey argues that Section 1983 and Bivens are different causes of action that go beyond this role:

Bivens claimed a basis in the Constitution, but it didn’t arise from the Constitution’s original meaning; an originalist would more likely think of Bivens as a creation of federal common law (which doesn’t necessarily mean it was illegitimate, just that it wasn’t constitutionally required). That explains, though, why the Court in cases like Anderson felt free to engage in what was (as Professor Kerr suggests) basically common law rulemaking rather than originalism. It was common law rulemaking, because all of Bivens, from which Anderson arose, is sub-constitutional federal common law.

It’s important to distinguish Anderson from two other sorts of suits for Fourth Amendment violations: (1) Fourth Amendment (really, Fourteenth Amendment) claims against state and local officials brought under the federal statute 42 U.S.C. 1983 (Section 1983 claims), and (2) state law claims (e.g., for trespass or battery) brought against federal, state or local officers. Neither of these is a constitutional claim and so they don’t raise issues of constitutional originalism.

Under Section 1983, courts have found implied qualified immunity (or in some situations absolute immunity) as a matter of statutory interpretation – perhaps wrongly, but that’s not of constitutional concern. As to state law claims, I would think federal courts couldn’t impose requirements like qualified immunity (whether Congress could is a different question). But states aren’t obligated to allow such claims at all, so they have latitude to impose such limitations themselves. The only place in this field that I know of where federal courts are creating non-statutory federal immunities is in Bivens claims (like Anderson). But they are doing it as a matter of common law, not constitutional law.

I really like this argument, although it has a fascinating implication: It suggests that existing immunity doctrines for state law tort suits against government officials may be unconstitutional, as they impermissibly fall below the floor of the original Fourth Amendment. By way of context, it is common for state tort law to have created a form of qualified immunity that applies when state officials are sued in state court for conduct undertaken as part of their official duties. Further, federal officers are protected from state tort causes of action for conduct in the course of their official duties by the Westfall Act. If Professor Ramsey is right, however, an originalist might conclude that these doctrines are unconstitutional. The state tort law causes of action must be preserved without immunity doctrines because they are the lineal descendants of the common law causes of action for tort in which common law search and seizure questions could be raised by the officers as an affirmative defense.

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