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01/27/2021

Gregory Sisk: Recovering the Tort Remedy for Federal Official Wrongdoing
Michael Ramsey

Gregory C. Sisk (University of St. Thomas School of Law (Minnesota)) has posted Recovering the Tort Remedy for Federal Official Wrongdoing (Notre Dame Law Review, forthcoming 2021) (57 pages) on SSRN.  Here is the abstract: 

As the Supreme Court weakens the Bivens constitutional tort cause of action and federal officers avoid liability for unlawful behavior through qualified immunity, we should recollect the merit of the common-law tort remedy for holding the federal government accountable for official wrongdoing. For more than a century after ratification of the Constitution, federal officers who trespassed on the rights of American citizens could be held personally liable under common-law tort theories, but then routinely were indemnified by the government.

The modern Federal Tort Claims Act (FTCA) roughly replicates the original regime for official wrongdoing by imposing liability directly on the government. Through modest revisions to the FTCA, most claims for abuse of federal government power can be adequately addressed through a common-law tort cause of action. The FTCA should be reformed to put claims for intentional wrongdoing on a more secure footing.

Constitutional principles remain central to adjudication of tort claims against the federal government. First, ordinary tort elements and defenses, such as probable cause in false arrest cases and justified use of force in assault and battery cases, may be refuted by asserting constitutional-equivalent violations. Second, discretionary policy immunity under the FTCA is precluded when constitutional limits are transgressed, as no federal officer has discretion to bypass constitutional requirements. And, because the doctrine of qualified immunity is misplaced in a tort regime, the commands of the Constitution should be directly enforced, without the diluting appraisal of whether the constitutional directive was clearly established in prior court precedent.

Agreed.  I understand why conservative/originalist judges and commentators don't like Bivens, but the original constitutional design of individual rights depended on a common law tort system that could be invoked against federal officers who acted unconstitutionally.  Congress can codify that system but it can't (or rather, shouldn't be able to) displace parts of it by precluding remedies for constitutional violations.  See my post here: Don't Fear Bivens.