Seeking a Unified Theory of Constitutional Torts

A new American Law Institute restatement will clarify public officials’ liability for constitutional torts.

SINCE AT LEAST 1871, when the predecessor to 42 U.S.C. Section 1983 was enacted, money damages have been authorized for violations of constitutional rights. Written shortly after the Civil War, the law was originally aimed at the Ku Klux Klan but has been interpreted to apply to all constitutional violations by those acting under color of state law.

As cases were brought, a range of defenses for public officials evolved, from absolute immunity—for the president, legislators, judges and sometimes prosecutors—to qualified immunity for all others. Qualified immunity precludes liability unless the defendant’s conduct violated a “clearly established” constitutional right.

But what law is “clearly established”? By which court? With what degree of specificity? And under what facts?

John C. Jeffries Jr. ’73, a David and Mary Harrison Distinguished Professor of Law and former UVA Law dean, has been tapped by the American Law Institute to answer those questions and many others, along with former UVA Law professor Pamela S. Karlan. Jeffries and Karlan, now the Kenneth and Harle Montgomery Professor of Public Interest Law at Stanford Law School, will serve as coreporters for ALI’s first restatement of the law on constitutional torts.

Constitutional tort discussions turn almost immediately to excessive force in policing “because that’s what everybody talks about today,” Jeffries said. “But the law of Section 1983 provides a damages action against anyone acting under color of state law. That includes school board members, it includes people who give or deny welfare benefits, and it includes people who make zoning decisions.” (The U.S. Supreme Court recognized an analogous right to sue federal officers in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics.)

In most of these contexts, qualified immunity is the crucial issue. As applied to excessive force, “qualified immunity is almost a negligence standard,” Jeffries said. “If a police officer or any other government official violates constitutional rights but makes a reasonable mistake, they’re not liable for damages.”

Under the Fourth Amendment, force is unconstitutionally excessive only if it is “objectively unreasonable.” But, when the law has been in flux, some courts have held that an officer may make a reasonable mistake about whether force is objectively unreasonable.

In other words, it’s possible for an officer to be reasonably unreasonable. The whole thing can feel a bit like a trip through a hall of mirrors.

“There is a good deal of variation in those cases, and it would be good to have a more uniform understanding of exactly what qualified immunity means in that context,” Jeffries said.

Jeffries, who first joined the UVA Law faculty in 1975, has spent most of the spring semester outlining the black letter law for the restatement project and assigning other scholars to work as the initial drafters of the comments that will elucidate the complexities of each rule. He’s also started drafting his own comments on excessive force and which decisions count as “clearly established law.”

Although Jeffries has authored numerous books and textbooks, he expects this to be his largest undertaking to date, with final ALI Council and membership approval several years in the future.

Jeffries expressed pride in being one of five UVA Law faculty members who are currently serving as reporters or co-reporters for ALI projects. Others include Douglas Laycock, who is a reporter for “Restatement of the Law Third, Torts: Remedies”; Paul B. Stephan ’77, a reporter for “Restatement of the Law (Fourth): The Foreign Relations Law of the United States”; Richard J. Bonnie ’69, an associate reporter for “Restatement of the Law: Children and the Law”; and Rachel Harmon, an associate reporter for “Principles of the Law, Policing.”

Restatements are addressed to courts, while principles projects are primarily addressed to legislatures, administrative agencies and private actors.

Jeffries has written—often pointedly—about the complexities of constitutional tort law and qualified immunity since 1989. Some considered his 2013 Virginia Law Review piece, “The Liability Rule for Constitutional Torts,” to be his final say on the issue.

In it, he noted the widening gulf between constitutional tort doctrine’s priorities and the importance of the underlying constitutional rights that may have been violated. In that self-described attempt at a “unified theory of constitutional torts,” Jeffries concluded that current doctrine considers only the identity of the defendant and the nature of the act she performs, thereby losing any “underlying stratum of good sense.”

The ALI project has pulled Jeffries back into the field and given him and Karlan a formidable platform for a comprehensive accounting of the field of constitutional torts.

—Melissa Castro Wyatt