Government Responsibility for Constitutional Torts

This essay is about the language used to decide when governments should be held responsible for constitutional torts.\u27 Debate about what is required of government officials, and what is required of government itself, is scarcely new. What is new, at least to American jurisprudence, is litigation against government units (rather than government officials) for constitutional injuries. 2 The extension of liability to institutional defendants introduces special problems for the language of responsibility. In a suit against an individual official it is easy to describe the wrong as the consequence of individual behavior that is inconsistent with community norms; the language of common-law tort, which refers explicitly to those norms, has seemed to provide a useful starting point for evaluating that behavior.3 When the defendant is an institution, the language of tort provides no such ground because traditionally it has not been used to evaluate harms created by structures and contexts rather than by individuals. When discussions of institutional responsibility are couched only in terms borrowed from tort they are impoverished. The poverty of discussions cast in tort vocabulary can even be read to suggest that we simply have no norms for risk-creating behavior other than those applied to individuals. I begin with a discussion of the language of responsibility as it has been developed in tort for tracing the consequences of individual behavior. Suits against institutions have been assimilated to this language through the doctrines of vicarious and strict liability. In constitutional tort litigation, however, these doctrines are not available, and the problem of institutional responsibility must be faced directly. I then discuss a series of constitutional tort cases - those cases in which the Supreme Court has elaborated the conditions under which government liability will be imposed - in order to investigate this problem of language. In these cases the perspective adopted from tort encourages the Justices to convert the problem of institutional morality into one of individual morality; tort language leads them to look for individual choices and motives, for an actor or a mind that can be evaluated. In most of these cases the possibility of looking at an institution as a unit distinct from the separate individuals who compose it is not considered. For example, the Justices fail to see that injuries can be brought about quite inadvertently through the workings of institutional structures - through the massing or fragmentation of authority, or by the creation of a culture in which responses and a sense of responsibility are distorted. Finally, I point to a few cases in which the Supreme Court has, perhaps inadvertently, considered the institution as a whole in determining whether constitutional norms have been violated and liability is appropriate. One of these, Owen v. City of Independence,4 like the cases discussed earlier, raises the issue of what is official policy or custom. The others, Parratt v. Taylor5 and Logan v. Zimmerman Brush Co., 6 involve due process. We shall see that the promise of the due process cases has not been fulfiled. The pull of the individual tort model has proved too strong, leading the Court to retreat from the structural analysis employed in Parratt