Shrinking Constitutional Tort Accountability: Developments in the Law and Implications for Professional Responsibility

Abstract

ABSTRACTU.S. constitutional tort law enables individuals to recover money damages in civil suits against government officials and employees whose job-related actions violate their constitutional rights. Such legal accountability closely relates to professional accountability because liability for damages depends on whether the officials or employees violated “clearly established … constitutional rights of which a reasonable person” in their positions “would have known.” Municipalities face financial liability in constitutional tort suits when their policies, including failure to train their employees, directly cause breaches of individuals’ constitutional rights. State and local government contractors involved in “state action” are also potentially liable for their constitutional torts. However, in a series of decisions in the 2000s, the Supreme Court has weakened constitutional tort law as a mechanism for securing accountability by making it more difficult or even impossible for those alleging infringements on their constitutional rights to use this body of law to recover damages. The reduction in legal accountability can be partially compensated for by emphasis on constitutionality as a component of professional accountability in public administration education programs.