The Supreme Court oversees a system of government accountability that has attracted a range of familiar and persuasive criticisms. Rather than basing liability on generally applicable legal principles, the Court has applied doctrines of sovereign and official immunity that block many of the suits brought by victims of undue government violence. The Court has sought to balance the interests of the public in assuring zealous law enforcement and the interests of the victims in securing redress when excessive zeal results in injuries. Few believe that the Court has struck the proper balance. Its doctrine of qualified immunity shields all but the plainly incompetent or deliberately malicious from liability in the name of eliminating the chilling effect of personal liability—a threat neutralized by the widespread practice of indemnification. The search for clear law, the touchstone for immunity decisions, entails scholastic inquiries into legal nuances that do not obviously shape the behavior of officers on the job.
One can measure just how far wrong the Court has gone in a variety of ways: by toting up examples of clear injustice in the cases; by examining the culture of law enforcement and how it encourages violent confrontation; by comparing the liability rules in place today with those that governed police work in years gone by. But we have largely lost sight of one key measure of legal performance: how well does our system of government accountability compare to the rules of tort law that govern ordinary citizens in ordinary proceedings before ordinary courts. Largely, but not perhaps completely lost sight, thanks to the comparative work of Canadian legal scholar Sam Beswick. In the arresting paper at the center of this jot, Equality Under Ordinary Law, Beswick compares government accountability litigation under the Diceyan model of ordinary law in Canada with the qualified forms of constitutional tort liability that prevail in the United States. Beswick shows, unsurprisingly, that the Diceyan model outperforms the American system in providing some measure of redress to the victims of wrongful official conduct.
For a time, the United States followed Great Britain in relying on the common law of tort as one important source of redress for unlawful official government conduct. That tradition, reflected in such well-known nineteenth century cases as Little v. Barreme and United States v. Lee, found its most iconic restatement in the work of British constitutional scholar A.V. Dicey. Working in the latter half of the nineteenth century, Dicey characterized the duty of government officials to comply with the ordinary rules of tort law applied by ordinary courts as the essence of British constitutionalism and the rule of law. Such a conception of ordinary law in ordinary courts continues to undergird government accountability litigation in such commonwealth countries as Canada, Australia, and New Zealand.
For many years, the United States has distanced itself from the Diceyan model, relying instead on constitutional norms, statutory rights to sue, and declaratory and injunctive relief. More recently, the Court essentially declared its independence from that measure of remedial adequacy. That striking declaration occurred in Hernandez v. Mesa, rejecting the Bivens claims of the parents of the young man killed at the Mexican border by a federal agent. The Court acknowledged that, throughout the nineteenth century, the common law system of remedies had provided the measure of official liability for tortious conduct of officers such as Agent Mesa. That system of remedies quite clearly extended liability to tortious conduct that occurred beyond the territorial boundaries of the United States. But the Court did not view the common law baseline as a relevant measure of modern government accountability. It theld that the family could not recover for border patrol actions that inflicted injuries across the culvert that separates the two countries. In pushing aside the common law as a source of comparative insight into the proper scope of official liability, the Court disassociated the United States from a long common law tradition of equality under law.
To see the consequences of that declaration of independence, consider Beswick’s assessment of the operation of Diceyan framework in Canada. On Beswick’s telling, the Diceyan model calls for ordinary rules of tort to apply, subject to an official defense of authority. Individuals may bring suit on their own initiative, with no obligation to exhaust remedies or petition the government for leave to proceed. Ordinary tort law supplies the measure of liability: assaults and batteries demand compensation unless justified. Justification depends on the officer’s ability to show that some applicable statute or regulation authorized the use of force in question. Without authority, officers bear personal liability (subject, of course, to indemnification) for the injuries they inflict.
Beswick shows that the Diceyan approach, though far from perfect, provides a greater measure of protection for individuals in the Commonwealth than does the constitutional tort framework in the States. Across a broad range of official misconduct, Canadian courts prove far more willing to impose liability for excessive force than their counterparts in the United States. In Canada, a detained plaintiff recovered damages in tort after having been the target of a retaliatory use of pepper spray; in the United States, a similar claim was dismissed. Beswick also finds a disinclination on the part of state courts in the United States to allow state tort claims to proceed against state law enforcement officials; one officer who shot a “skat” shell into a crowded prison hall, despite the various warnings against the use of such shells indoors, was immunized from liability for the injuries predictably inflicted.
Mistakes of fact and law offer another good comparative example. When Canadian officers mistakenly execute a search warrant on the home, they face liability if they act unreasonably. In the United States, one must establish more than unreasonable conduct; one must identify judicial precedent clearly holding the conduct in question committed in similar circumstances to have been unreasonable. That proved fatal to the claims of an innocent elderly man who happened to live next door to the targets of a search warrant and was grievously injured when officers got the address wrong.
Canada has also declined to follow decisions in the United States that immunize officers for good-faith mistakes of law. Or consider Egbert v. Boule, the Court’s most recent Bivens case. Boule brought claims against a federal officer who roughed him up at the front of the Smuggler’s Inn, his building on the border between Washington and Canada. While one can only speculate as to how Canada might have assessed the claims had the police misconduct occurred on the other side of the border that ran through the Inn’s backyard, one can say for certain that the Canadian courts would not follow the Supreme Court of the United States in dismissing on the basis that the victim had no right to sue.
Beswick’s assessment provides a welcome baseline against which to test the comparative effectiveness of the two systems in ensuring redress for law-enforcement misconduct. Of course, a full comparative assessment would call for some attention to the findings of criminologists. We might ask if Canada’s commitment to rule-based redress for government wrongs has hampered law enforcement or led to a spike in the crime rate. Statistics show Canada’s consistently lower homicide rates. While such blunt comparisons do not capture many important considerations, we at least can say that the more effective system of redress in Canada does not appear to have occasioned such law-enforcement laxity as to make Canada a more dangerous place in which to live.
Trackbacks/Pingbacks