Constiutional Duty and Section 1983: A Response

ion has "violated" the constitution), the conclusion that no individual official's conduct constituted the violation should not be grounds for an additional conclusion that individuals cannot therefore be statutorily liable in damages. The validity of the analysis employed in Ingraham-and employable in recasting Paul v. Davis as holding only that state defamation remedies satisfy due process02 -is its recognition that a government's systematic response to due process concerns is what determines whether any constitutional deprivation occurred. The question of liability, if it is determined that the systematic response is constitutionally inadequate, is a separate issue. If Ingraham suggests that isolated individual conduct cannot violate procedural due process, it is in the sense that the meaning of constitutional deprivation must be determined by a focus of inquiry not limited to the actions of individuals. The implication of that suggestion-that it is not proper usage to refer to an individual government official's conduct as "unconstitutional"does not compel a conclusion that the individual should not be liable for the deprivation. The conduct of individual officials can, without characterizing that conduct as either constitutional or unconstitutional, have a causal relationship or "factual connection""I to a constitutional deprivation even where that deprivation is defined in terms of the "systematic" obligations of government. The problem of the liability or non-liability of such an individual is a problem of remedial policy, including policies of deterrence, of fairness to individual defendants, of federalism and of judicial administration. It is, in short, a question not of constitutional but of statutory duty. The Individual Defendant As Focus of Analysis Where Government Is Not the Object of Federal Regulation The category of cases where the individual, not the government, is the object of federal regulation obviously includes those cases described in the earlier discussion of a statutory extension of federal regulation to reach individual misconduct. It includes cases, then, in which no government authorization or policy is inconsistent with, or a threat to, a constitutional norm or a constitutionally protected interest, as well as cases in which there exists either a government remedy for the individual conduct at issue or no 102. Ingraham v. Wright, 430 U.S. 651, 701-02 (1977) (Stevens, J., dissenting). 103. Cf. Thode, supra note 32 (factual connection element in common law tort analysis). 1981] Cox: Constiutional Duty and Section 1983: A Response Produced by The Berkeley Electronic Press, 1981 490 VALPARAISO UNIVERSITY LAW REVIEW [Vol.15 legitimate claim of a constitutional obligation to create such a remedy."' 4 The appropriate analysis in such cases is wholly statutory. The category may be characterized as that of the true federal tort. The Constitution provides in such cases very little if any guidance, because, under the assumptions of the present discussion, the Constitution as such is not violated by the individual conduct this category seeks to regulate. Of course, the Court need not assume that the scope of the federal cause of action is as broad as the tort law of the states. Indeed, the Court may well restrict the application of the statute to instances of egregious behavior. There are excellent policy reasons for limiting this category to "outrageous" conduct" 5 or to extreme abuses of authority.' If the proposition that Congress authorized the category as an aspect of the statute is accepted, the fact remains that the statute does not by its terms provide substantial guidance. The age of the statute alone cautions conservative application. But whether construed broadly or narrowly, the statute remains an invitation to the Court to formulate its application interstitially. The second category, where the conduct of individual officials is at issue, and its relationship to the first category, where the conduct of government is at issue, may be illustrated by a brief description of the opinions in Baker v. McCollan,°7 In Baker, the plaintiff was arrested and incarcerated for a period of a few days because mistaken for a suspect named in a valid warrant. The Court, characterizing the claim as essentially one of false imprisonment, re104. See Monroe v. Pape, 365 U.S. 167, 211 (1961) (Frankfurter, J., dissenting) (arguing that, if state "authorized" the search in Monroe by declining to remedy the police conduct there involved, the dictum in Wolf v. Coloardo, 338 U.S. 25, 28 (1949)-"we have no hesitation in saying that were the state affirmatively to sanction such police incursion into privacy it would run counter to the guaranty of the Fourteenth Amendment"-could be applicable). If it is assumed that there was government conduct present in Monroe-at least in the sense of non-enforcement or of underenforcement of state rules-I would place that case in the category of cases, described in the preceding section, where government is the object of federal regulation. The remedial question would then be a statutory question, as it is in either category. If there had been no violation of the warrant requirement in Monroe-that is, if the sole concern was with the arbitrary conduct of the police in effecting an otherwise valid search-the problem would be that suggested by Justice Frankfurter's citation of Wolf: did the government authorize the conduct? That would be a constitutional issue within the first category. If the state did not "authorize" the conduct, the case would fall within the second category. 105. See Shapo, supra note 4. 106. See Monaghan, supra note 10, at 423-34. See also Paul v. Davis, 424 U.S. 693 (1976); note 120 infra and accompanying text. 107. 443 U.S. 137 (1979). Valparaiso University Law Review, Vol. 15, No. 3 [1981], Art. 1 http://scholar.valpo.edu/vulr/vol15/iss3/1