Gregory Baldwin v. City of Estherville, Iowa Matt Reineke, Individually and in His Official Capacity as an Officer of the Estherville Police Department and Matt Hellickson, Individually and in His Official Capacity as an Officer of the Estherville Police Department , 915 N.W.2d 259 ( 2018 )

IN THE SUPREME COURT OF IOWA
No. 17–1592
Filed June 29, 2018
GREGORY BALDWIN,
Appellee,
vs.
CITY OF ESTHERVILLE, IOWA; MATT REINEKE, Individually and in his
Official Capacity as an officer of the Estherville Police Department; and
MATT HELLICKSON, Individually and in his Official Capacity as an officer
of the Estherville Police Department,
Appellant.
Certified questions of law from the United States District Court for
the Northern District of Iowa, Mark W. Bennett, United States District
Court Judge.
Plaintiff seeks damages for alleged violations of his rights under
article I, section 1 and article I, section 8 of the Iowa Constitution following
his arrest under city ATV ordinances. CERTIFIED QUESTION
ANSWERED.
Douglas L. Phillips and René Charles LaPierre of Klass Law Firm,
LLP, Sioux City, for appellants.
Jack Bjornstad of Jack Bjornstad Law Office, Okoboji, for appellee.
2
Thomas J. Miller, Attorney General, Jeffrey S. Thompson, Solicitor
General, Julia S. Kim, Assistant Attorney General, for amicus curiae State
of Iowa.
Thomas M. Boes and Catherine M. Lucas of Bradshaw, Fowler,
Proctor & Fairgrave, P.C., Des Moines, for amicus curiae Iowa
Communities Assurance Pool.
Katie Ervin Carlson of Fiedler & Timmer, P.L.L.C., Johnson, Jessica
Zupp of Zupp and Zupp Law Firm, P.C., Denison, and Joel E. Fenton, Law
Offices of Joel E. Fenton, PLC, Des Moines, for amicus curiae Iowa
Association for Justice.
3
MANSFIELD, Justice.
After receiving citizen complaints about the operation of an ATV
within city limits, police officers reviewed a video of the event, examined
the city’s ordinances, and concluded an ordinance had been violated. They
sought and obtained an arrest warrant from a magistrate and arrested the
ATV operator. An Iowa district court later dismissed the criminal case
against the operator, however, finding that no ordinance actually
prohibited his conduct.
Thereafter, the ATV operator brought damages claims against the
city and the police officers for common-law false arrest, deprivation of civil
rights under 42 U.S.C. § 1983 (2012) based on a violation of the Fourth
Amendment, and directly under article I, sections 1 and 8 of the Iowa
Constitution. The case was removed to federal court, where the federal
district court granted summary judgment to the defendants on the
common law and federal constitutional claims. The federal district court
reasoned that the police officers were acting pursuant to a facially valid
warrant, and it was not clearly established that the ATV operator’s conduct
did not violate an ordinance.
We have now been asked by the federal district court to answer the
following certified question of Iowa law relating to the Iowa constitutional
claims: “Can a defendant raise a defense of qualified immunity to an
individual’s claim for damages for violation of article I, § 1 and § 8 of the
Iowa Constitution?”
For the reasons discussed herein, we answer this question as
follows: A defendant who pleads and proves as an affirmative defense that
he or she exercised all due care to conform with the requirements of the
law is entitled to qualified immunity on an individual’s claim for damages
for violation of article I, sections 1 and 8 of the Iowa Constitution.
4
I. Background Facts and Proceedings.
When we answer a certified question, we rely upon the facts provided
with the certified question. See Bd. of Water Works Trs. of Des Moines v.
Sac Cty. Bd. of Supervisors, 890 N.W.2d 50, 53 (Iowa 2017); Life Inv’rs Ins.
Co. of Am. v. Estate of Corrado, 838 N.W.2d 640, 643 (Iowa 2013).
Accordingly, we restate the facts as set forth by the federal district court:
The incidents giving rise to Baldwin’s claims began on
Sunday, November 10, 2013. At approximately 2:30 p.m. that
day, Officers Reineke and Hellickson were on patrol in the City
when they received a dispatch to report to the Law
Enforcement Center concerning a “4 wheeler complaint.”
They drove to the Law Enforcement Center. Upon their
arrival, they spoke with Tenner and Patti Lilland, who live in
the Estherville area. Mr. Lilland showed the officers a video
of a 4–wheeler riding in the ditch on the south side of North
4th Street. The officers were able to identify the driver of the
ATV as Greg Baldwin. They watched the ATV proceed along
North 4th Street and turn into a ditch, using the north Joe
Hoye Park entrance, after which it continued in the ditch until
it reached West 14th Avenue North, where it returned to the
roadway. Baldwin acknowledges that he was operating his
ATV/UTV on that date in the south ditch of North 4th Street
and on North 4th Street, and the parties agree that the ditch
and street are within the City’s limits. Baldwin does not recall
using the north Joe Hoye Park entrance to enter the ditch.
Officers Reineke and Hellickson reviewed Iowa Code Ch.
321I, because the City did not reproduce Chapter 321 in
printed form, only incorporated it by reference, when that
chapter was adopted into the City Code of Ordinances. Officer
Reineke then reviewed The Handbook of Iowa All-Terrain
Vehicle and Off-Highway Motorcycle Regulations (Handbook),
which the defendants contend is a handbook frequently relied
upon by police officers when determining whether off road
vehicles are operating in compliance with applicable laws.
Baldwin denies, for lack of knowledge, the assertion that
police officers rely on the Handbook, and denies that it
addresses the applicable laws of the City. Based upon their
reading of the State Code and the information contained in
the video provided by the Lillands, Officers Reineke and
Hellickson concluded that there had been a violation of what
they believed was City Ordinance E–321I.10 (operating on
highways). Before issuing a citation, however, Officer Reineke
conferred with his supervisor, Captain (now Chief) Brent
Shatto, and (then) Chief Eric Milburn. Captain Shatto and
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Chief Milburn agreed that they believed that the activity
shown on the video amounted to a violation of the local
ordinance. The parties now agree, however, that City
Ordinance E–321I.10 was not a valid ordinance in effect at the
time that Baldwin operated his ATV/UTV on November 10,
2013, because it did not exist at that time, and it still is not
part of the City’s Code of Ordinances.
Officer Reineke prepared a citation (No. 131818 8) to
Greg Baldwin, alleging that “on or about 11/10/2013 at 2:30
PM defendant did unlawfully Operate Motor Vehicle/Boat
RED UTV . . . upon a public highway at NORTH 4TH STREET
located in the county and state aforesaid and did then and
there commit the following offense: Violation ATV OR OFF
ROAD UTIL VEH/OPERATION ON HIGHWAYS AND [sic] . . .
Local Ord E–321I.10 ICIS E–S/321I.10.” Defendants’
Appendix at 17. The citation issued on November 11, 2013.
Officer Reineke went to the Baldwin residence to serve the
citation on November 11, 2013, but no one was home.
Because Reineke was scheduled to be off work in the days that
followed, he e-filed the citation with the notation: “Request
Warrant.” On November 12, 2013, David D. Forsyth,
Magistrate, Third Judicial District of Iowa, entered an Order
directing that a warrant issue. Defendants’ Appendix at 18.
On November 13, 2013, Officer Hellickson served the warrant
on Baldwin, while he was in the parking lot at his grandchild’s
school, in front of his wife and a large number of people,
arrested him, and took him to jail, where he was booked.
Baldwin’s wife came to the jail and posted bond, and Baldwin
was released. Subsequently, Baldwin entered a written plea
of not guilty to the charge, and trial was set for May 15, 2014.
The defendants allege that, in the days that followed,
City Attorney Christopher Fuhrman discovered that the City
had not included Iowa Code Ch. 321I when it incorporated
Iowa Code Ch. 321 into the Code of Ordinances. They also
allege that neither Shatto, Reineke, nor Hellickson knew this;
rather, all were operating under the mistaken belief that the
adoption and incorporation of Iowa Code Ch. 321 by the City
Council included Iowa Code Chs. 321A through 321M.
Baldwin disputes these contentions as inconsistent with the
meeting that he had with City police officers in 2006 about
operation of ATVs in the City; the express incorporation of
“chapter 321,” not any other chapter of the Iowa Code, into
the Code of Ordinances; and the existence of Chapter 9 of the
Code of Ordinances. Mr. Fuhrman was granted leave to
amend the charge to allege a violation of a different ordinance,
City Ordinance 219–2(2). Defendants’ Appendix at 28–29.
After Baldwin’s counsel filed a Motion For Adjudication Of Law
Points And To Dismiss, and the City filed its response, the
court found “that the cited act is not in violation of the city
6
code as written and the case is DISMISSED, costs assessed to
the City of Estherville.” Defendants’ Appendix at 30–37.
Baldwin alleges that, because of his arrest, he suffered
mental and emotional harm and anguish, anxiety, fear,
degradation, disgrace, uncertainty, apprehensiveness,
restlessness, dismay, tension, and unease. He contends that
his wife confirmed the effect on him in her deposition. The
defendants deny that Baldwin has produced any evidence to
support these claims of harm.
Baldwin v. Estherville, 218 F. Supp. 3d 987, 992–93 (N.D. Iowa 2016)
(omissions in original) (footnote omitted).
The Estherville City Code incorporated Iowa Code chapter 321 via
ordinance E-321.1, which stated,
All sections of the state statutory law, rules of the road,
Chapter 321 of the Code of Iowa the offense of which
constitutes a simple misdemeanor, are hereby adopted and
incorporated by this reference the same as if set forth in full
herein into the Code of Ordinances of the City of Estherville,
Iowa, and the violation of such applicable state statutory laws
of the road shall be a violation of this chapter if the offense
occurs within the territorial city limits of the City of
Estherville.
Estherville, Iowa, Code of Ordinances, tit. II, div. 1, ch. 7, § E-321.1
Iowa Code section 321.234A covers operation of ATVs and provides,
All-terrain vehicles shall not be operated on a highway
unless one or more of the following conditions apply:
....
f. The all-terrain vehicle is operated on a county
roadway in accordance with section 321I.10, subsection 2, or
a city street in accordance with section 321I.10, subsection 3.
Iowa Code § 321.234A(1)(f) (2013).
Iowa Code section 321I.10 also covers ATVs and provides,
1. A person shall not operate an all-terrain vehicle or
off-road utility vehicle upon roadways or highways except as
provided in section 321.234A and this section.
2. A registered all-terrain vehicle or off-road utility
vehicle may be operated on the roadways of that portion of
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county highways designated by the county board of
supervisors for such use during a specified period. The
county board of supervisors shall evaluate the traffic
conditions on all county highways and designate roadways on
which all-terrain vehicles or off-road utility vehicles may be
operated for the specified period without unduly interfering
with or constituting an undue hazard to conventional motor
vehicle traffic. In designating such roadways, the board may
authorize all-terrain vehicles and off-road utility vehicles to
stop at service stations or convenience stores along a
designated roadway.
3. Cities may designate streets under the jurisdiction
of cities within their respective corporate limits which may be
used for the operation of registered all-terrain vehicles or
registered off-road utility vehicles. In designating such
streets, the city may authorize all-terrain vehicles and off-road
utility vehicles to stop at service stations or convenience
stores along a designated street.
Id. § 321I.10.
The parties now agree that Iowa Code section 321.234A had been
incorporated into the Estherville ordinances by ordinance E-321.1, but
section 321I.10 had not been so incorporated.
As noted above, City Attorney Fuhrman later amended the charge
against Baldwin to allege a violation of a different, free-standing city
ordinance, 219.2(2). This ordinance reads,
ATV/UTVs may be operated upon the streets of the City
of Estherville, Iowa, except as prohibited in Subsection 1 of
this section, by persons possessing a valid Iowa Driver’s
License.
1. Prohibited Streets. ATV/UTVs shall not be operated
upon any city street which is a primary road extension
through the city, to wit: Iowa Highway No. 4 and Iowa Highway
No. 9. However, ATV/UTVs may cross such primary road
extensions.
2. Parks and Other Public Lands. ATV/UTVs shall not
be operated off-road in city parks, playgrounds, or upon any
publicly-owned property.
3. Private Property. ATV/UTVs may only be operated
upon private property with express consent of the owner
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thereof or while engaged in snow removal, landscaping, or
other maintenance activities.
4. Sidewalk or Parking. No ATV/UTV shall be operated
upon sidewalks unless engaged in snow removal or
maintenance activities (except along the south sidewalk from
South First Street to West South First Street) nor shall they
be operated upon that portion of the street located between
the curb line and sidewalk or property line commonly referred
to as the “parking” except for purposes of snow removal,
maintenance, or landscaping activities.
Estherville, Iowa, Code of Ordinances, tit. II, div. 1, ch. 9, 219.2(2).
Regardless, as noted above, the district court dismissed the criminal
complaint on the ground that Baldwin’s conduct was “not in violation of
the city code as written.”
On November 4, 2015, Baldwin filed a civil suit in the Iowa District
Court for Emmet County against the City and Officers Matt and
Hellickson, individually and in their official capacities as officers of the
Estherville Police Department. In addition to a common-law false arrest
claim, Baldwin also alleged violations of his rights under article I, sections
1 and 8 of the Iowa Constitution and his rights under the Fourth
Amendment to the United States Constitution pursuant to 42 U.S.C.
§ 1983. Baldwin sought money damages as relief.
On November 20, the defendants removed the case to the United
States District Court for the Northern District of Iowa on the basis of
federal question jurisdiction pursuant to 28 U.S.C. § 1331. The
defendants subsequently filed an answer to Baldwin’s claims, denying
liability and asserting immunity from suit as an affirmative defense. Trial
was set for April 17, 2017.
On July 19, 2016, the defendants moved for partial summary
judgment on the federal constitutional claim and the common law false
arrest claim, and Baldwin responded with his own motion for partial
9
summary judgment on August 11. On November 18, the federal district
court granted the defendants’ motion as to Baldwin’s § 1983 claim on two
bases: that the officers did not lack probable cause for Baldwin’s arrest
and that they were entitled to qualified immunity. 1 The court also granted
summary judgment to the defendants on the common-law false arrest
claim. The court stayed any ruling on the Iowa constitutional claims until
this court issued its opinion in Godfrey v. State, 898 N.W.2d 844 (Iowa
2017).
1
The district court reasoned in part as follows:
Baldwin argues that Ordinance 219–2, which was actually part of
the City’s Code of Ordinances, plainly establishes the lack of probable
cause for his arrest. I believe that the opposite is true. While Ordinance
219–2 does provide that “ATV/UTVs may be operated upon the streets of
the City,” it also provides “ATV/UTVs shall not be operated off-road in city
parks, playgrounds, or upon any publicly-owned property.” The officers
knew from the video that they reviewed that Baldwin had operated his ATV
in the ditch of a City street and that ditch was publicly-owned property.
Indeed, the amended charge against Baldwin, after the City Attorney
discovered that Ordinance E321I.10 did not exist, was an alleged violation
of Ordinance 219–2(2) for driving on “publicly-owned property,” because
the video showed Baldwin driving his ATV in the ditch of a City street,
which was, at least arguably, publicly-owned property.
The Iowa District Court ultimately dismissed the amended charge
against Baldwin, but only after making two key constructions of pertinent
Ordinances. First, the Iowa District Court construed the plain meaning of
“street” in City Ordinances to include the “ditch.” This conclusion was
based on the definition of “street” in City Ordinance 110–102(23) as
“mean[ing] and includ[ing] any public way, highway, street, avenue,
boulevard, parkway, or other public thoroughfare . . . and unless otherwise
indicated in the text, shall include the entire width between the property
lines.” The Iowa District Court also construed “publicly-owned property”
in Ordinance 219–2(2), to the extent that it conflicted with Ordinance 110–
102(23), as not including the “ditch” of a City street. . . . The Iowa District
Court’s after-the-fact constructions do not establish that a prudent person
could not have believed, at the time of Baldwin’s alleged offense, that he
had committed a violation of Ordinance 219–2(2). . . . The officers had
probable cause to arrest Baldwin for a violation of Ordinance 219–2(2).
Baldwin, 218 F. Supp. 3d at 1000–01 (alterations in original) (first omission in
original) (citations omitted).
10
On October 4, 2017, after we had issued our Godfrey decision, the
district court certified this question of law to us: “Can a defendant raise a
defense of qualified immunity to an individual’s claim for damages for
violation of article I, § 1 and § 8 of the Iowa Constitution?”
II. Standard of Review and Criteria for Answering a Certified
Question.
Iowa Code section 684A.1 provides,
The supreme court may answer questions of law
certified to it by the supreme court of the United States, a
court of appeals of the United States, a United States district
court or the highest appellate court or the intermediate
appellate court of another state, when requested by the
certifying court, if there are involved in a proceeding before it
questions of law of this state which may be determinative of
the cause then pending in the certifying court and as to which
it appears to the certifying court there is no controlling
precedent in the decisions of the appellate courts of this state.
Iowa Code § 684A.1 (2017).
Accordingly, we have said,
It is within our discretion to answer certified questions
from a United States district court. We may answer a question
certified to us when (1) a proper court certified the question,
(2) the question involves a matter of Iowa law, (3) the question
“may be determinative of the cause . . . pending in the
certifying court,” and (4) it appears to the certifying court that
there is no controlling Iowa precedent.
Roth v. Evangelical Lutheran Good Samaritan Soc’y, 886 N.W.2d 601, 605
(Iowa 2016) (omission in original) (quoting Estate of Corrado, 838 N.W.2d
at 643).
We conclude that these four criteria have been met here and we
should answer the certified question. To do so, we will first briefly review
our Godfrey decision and the status of governmental immunity in Iowa.
We will then examine how other jurisdictions that allow constitutional tort
11
damages claims have treated the question of qualified immunity. Finally,
we will consider relevant Iowa precedent and answer the certified question.
III. Godfrey v. State.
Last year, in Godfrey, we held that the State of Iowa and state
officials acting in their official capacities could be sued directly for violating
article I, section 6 (the Iowa equal protection clause) and article I, section
9 (the Iowa due process clause), where state law does not provide an
adequate compensatory damage remedy. See 898 N.W.2d at 846–47
(majority opinion); id. at 880–81 (Cady, C.J., concurring in part and
dissenting in part). We concluded that with respect to discrimination
based on sexual orientation, the Iowa Civil Rights Act provided an
adequate remedy and thus no claim was available under article I, section
6. Id. at 881. We did not reach the same conclusion with respect to the
due process violations alleged in the petition. Id. at 880–81
We expressly deferred consideration of whether qualified immunity
applied to these constitutional tort claims. Id. at 879. That is the issue
we are now asked to address.
IV. Governmental Immunity in Iowa.
Tort claims against the government in Iowa are governed by chapter
669, for state tort claims, and chapter 670, for municipal tort claims.
These chapters apply both to claims against the governmental entity itself
and to claims against governmental employees acting in their official
capacity.
Each chapter exempts certain claims from liability. These
exemptions include the discretionary function exception. Iowa Code
§ 669.14(1); id. § 670.4(1)(c). The discretionary function exception in the
state tort claims act exception applies to
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[a]ny claim based upon an act or omission of an employee of
the state, exercising due care, in the execution of a statute or
regulation, whether or not such statute or regulation be valid,
or based upon the exercise or performance or the failure to
exercise or perform a discretionary function or duty on the
part of a state agency or an employee of the state, whether or
not the discretion be abused.
Id. § 669.14(1). The exception in the municipal tort claims act is worded
similarly and applies to
[a]ny claim based upon an act or omission of an officer or
employee of the municipality, exercising due care, in the
execution of a statute, ordinance, or regulation whether the
statute, ordinance or regulation is valid, or based upon the
exercise or performance or the failure to exercise or perform a
discretionary function or duty on the part of the municipality
or an officer or employee of the municipality, whether or not
the discretion is abused.
Id. § 670.4(1)(c).
In addition to this exemption, there are similar exemptions in both
acts for tax claims, claims covered by workers’ compensation, claims for
negligent design or specification or failure to upgrade roads or public
improvements, and punitive damages. See id. §§ 669.4(2), .14(2), (5), (8),
(9); id. § 670.4(1)(a), (b), (e), (g), (h). Still other exemptions can be found in
both chapters.
V. Review of Other Jurisdictions.
As we noted in Godfrey, “The states that have considered the issue
are nearly equally divided in whether to recognize implied constitutional
actions for damages or whether to decline to recognize such actions.” 898
N.W.2d at 856–57 (footnotes omitted). We cited fourteen jurisdictions as
recognizing direct damage actions under their state constitutions:
California, Connecticut, Illinois, Louisiana, Maryland, Massachusetts,
Michigan, Mississippi, Montana, New Jersey, New York, North Carolina,
Texas, and Wisconsin. See id. at 856 n.2.
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We will now review these jurisdictions to determine what
immunities, if any, they allow for constitutional tort claims. Our
conclusion is that most of these jurisdictions either recognize a federal-
type immunity, such as the district court applied to the federal
constitutional claims here, or subject constitutional claims to the defenses
otherwise available under the state’s tort claims act (or similar statute).
A. States That Recognize Harlow v. Fitzgerald Immunity.
Under federal law, officials are entitled to qualified immunity from
constitutional claims. That is, they cannot be sued when “their conduct
does not violate clearly established . . . constitutional rights of which a
reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S.
800, 818, 102 S. Ct. 2727, 2738 (1982). This immunity applies both to
claims based on 42 U.S.C. § 1983 and to Bivens actions derived directly
from the United States Constitution. See, e.g., Wood v. Moss, ___ U.S. ___,
___, 134 S. Ct. 2056, 2066–67 (2014); Harlow, 457 U.S. at 818, 102 S. Ct.
at 2738 & n.30.
Two states that allow direct claims under their own state
constitutions—Connecticut and Louisiana—also provide Harlow-type
immunity.
In Binette v. Sabo, the Connecticut Supreme Court recognized a
damages cause of action for a violation of the state constitution. 710 A.2d
688, 700–01 (Conn. 1998). The individual defendants in that case had
allegedly entered the plaintiffs’ home without permission or a warrant. Id.
at 689. However, the court made an important distinction between the
conduct of the government officials in that case—which it characterized as
“egregious”—and conduct that was undertaken “reasonably and in good
faith.” See id. at 701 n.23. In the latter circumstance, the court
14
anticipated that the individual defendants would be shielded from liability.
Id.
Later, in Fleming v. City of Bridgeport, the Connecticut Supreme
Court found that a Harlow-style qualified immunity was available to
municipal officers for damages actions following illegal searches when “it
was objectively reasonable for them to believe that their actions would not
violate a clearly established right of the plaintiff’s under the
circumstances.” 935 A.2d 126, 144 (Conn. 2007). The plaintiff’s suit was
then found to be barred by this qualified immunity. Id. at 146 (“[W]e
cannot say . . . that their approach under the circumstances of this case
was so unreasonable as to justify abrogation of their qualified immunity.”).
Harlow was not cited, but the court used a standard similar to that in
Harlow. See id. at 144; see also Harlow, 457 U.S. at 818, 102 S. Ct. at
2738.
Louisiana also utilizes the federal qualified immunity standard. In
Moresi v. Department of Wildlife & Fisheries, the plaintiffs sought recovery
under the Louisiana constitutional right to be free from unreasonable
searches, seizures, and invasions of privacy. 567 So. 2d 1081, 1091 (La.
1990). The Louisiana Supreme Court “conclude[d] that damages may be
obtained by an individual for injuries or loss caused by a violation of Article
I, § 5 of the 1974 Louisiana Constitution.” Id. at 1093. However, the court
also determined that the plaintiffs could not recover against the state
officers because
[t]he same factors that compelled the United States Supreme
Court to recognize a qualified good faith immunity for state
officers under § 1983 require us to recognize a similar
immunity for them under any action arising from the state
constitution.
15
Id. Qualified immunity would be available “if the defendant show[ed] that
the state constitutional right alleged to have been violated was not clearly
established.” Id. at 1094.
Two other jurisdictions we cited in Godfrey as allowing direct
constitutional damage claims actually authorize such claims through
enabling statutes—Massachusetts and New Jersey. Both states have
determined that Harlow immunity applies to such claims, in addition to
defenses expressly written into the statutes themselves.
Thus, in Massachusetts, state constitutional tort claims may be
pursued via the state civil rights act. See Martino v. Hogan, 643 N.E.2d
53, 59–60 (Mass. App. Ct. 1994). This act appears to be the exclusive
avenue for pursuing such claims. See id. at 60. And such constitutional
claims are subject to two separate limits. First, the Massachusetts
Supreme Judicial Court has concluded that the legislature, “in enacting
the [state civil rights act], intended to adopt the standard of immunity for
public officials developed under [federal law].” Rodriques v. Furtado, 575
N.E.2d 1124, 1127 (Mass. 1991). Furthermore, under the express terms
of the civil rights act, the plaintiff must prove that a constitutional right
has been interfered with “by threats, intimidation, or coercion.” Glovsky
v. Roche Bros. Supermarkets, Inc., 17 N.E.3d 1026, 1035 (Mass. 2014)
(quoting Mass. Gen. Laws ch. 12, § 11H).
New Jersey has also authorized the bringing of state constitutional
claims by statute through the New Jersey Civil Rights Act. See Gormley v.
Wood-El, 93 A.3d 344, 358 (N.J. 2014). Yet as in Massachusetts, a
qualified immunity defense is available that “tracks the federal standard”
in Harlow. Brown v. State, 165 A.3d 735, 743 (N.J. 2017). This shields
from liability all public officials except those who are “plainly incompetent
or those who knowingly violate the law.” Morillo v. Torres, 117 A.3d 1206,
16
1215 (N.J. 2015) (quoting Connor v. Powell, 744 A.2d 1158, 1164 (N.J.
2000)). 2
B. States That Limit Liability to That Authorized by the State
Tort Claims Act. Other states rely on their tort claims acts to demarcate
the outer scope of constitutional damages liability. Officials and the state,
in other words, receive the immunities contained within the tort claims act
and are liable only when the act would render them liable.
Illinois, one jurisdiction we cited in Godfrey, follows this approach.
In Newell v. City of Elgin, the plaintiff sued over a violation of his right
against unreasonable searches and seizures set forth in the Illinois
Constitution. 340 N.E.2d 344, 346–47 (Ill. App. Ct. 1976). The court
determined that the state tort immunity statute governed. Id. at 347–48.
Under the statute, “a public employee is not liable for his act in the
execution or enforcement of any law unless his act ‘constitutes willful and
wanton negligence.’ ” Id. at 348 (quoting 85 Ill. Rev. Stat. § 2-202 (1973)).
Although this elevated standard applied, the court found that the
defendant police officers had been guilty of willful and wanton negligence
and therefore were not shielded by the statutory immunity. Id.; see also
Commerce Bank, N.A. v. Widger, No. 3–10–0647, 2011 WL 10468212, at *2
(Ill. App. Ct. Nov. 7, 2011) (deciding that a claim under the Illinois
2Other states not cited in Godfrey for recognizing independent constitutional torts
also provide Harlow-type immunity. For example, Vermont permits constitutional tort
claims if the provision is self-executing and the legislature has fashioned no other
adequate remedial scheme. See Shields v. Gerhart, 658 A.2d 924, 930, 934 (Vt. 1995).
“Where the Legislature has provided a remedy, although it may not be as effective for the
plaintiff as money damages, [the Vermont courts] will ordinarily defer to the statutory
remedy and refuse to supplement it.” Id. at 934. When a constitutional damages claim
is available, the Vermont Supreme Court has recognized Harlow qualified immunity as a
defense. See Stevens v. Stearns, 833 A.2d 835, 842 (Vt. 2003). In Stevens, the plaintiffs
sued for the alleged violation of their rights against unreasonable searches under the
state constitution. Id. at 839, 842. Without deciding whether a cause of action existed,
the Vermont Supreme Court found it was barred by qualified immunity. Id. at 842.
 17
Constitution’s search and seizure clause, even if available, was subject to
the terms of the State Lawsuit Immunity Act).
So too Maryland. In Lee v. Cline, the Maryland Court of Appeals
discussed the interplay between constitutional torts and the immunity
provided by the state tort claims act. 863 A.2d 297, 303–10 (Md. 2004).
In that case, the plaintiff brought suit alleging a violation of his rights
under the Maryland Declaration of Rights after he was unlawfully detained
in his car allegedly because of his race and the kind of car he was driving.
Id. at 301. The court surveyed its prior cases as supporting the position
that “constitutional torts are covered by the Maryland Tort Claims Act,
thereby granting state personnel qualified immunity for such torts.” Id. at
304–05.
In Maryland, the state tort claims act also limits the state’s liability
for a constitutional tort. See Cooper v. Rodriguez, 118 A.3d 829, 844–45
(Md. 2015). Under that act, the state is immune from liability for
constitutional claims if the official’s actions stem from malice or gross
negligence. Id. at 854; see also Brooks v. Jenkins, 104 A.3d 899, 908 (Md.
Ct. Spec. App. 2014) (“If the employee is found . . . to have acted with
malice or gross negligence, even though in the course of his employment,
the State does not assume liability for his conduct.”). Furthermore, the
state’s liability cannot exceed $200,000 per claimant per incident. See
Cooper, 118 A.3d at 845.
Claims against local governments are also limited. In Clea v. Mayor
of Baltimore, the Maryland Court of Appeals originally said that “a public
official who violates a plaintiff’s rights under the Maryland Constitution is
entitled to no immunity.” 541 A.2d 1303, 1312 (Md. 1988). But in a later
case also involving the Baltimore police department, which arose after
Maryland passed its local government tort claims act, the same court
18
indicated that claims against local officials and local governmental entities
are subject to the terms of that act, including a cap on damages per
individual claim. Houghton v. Forrest, 989 A.2d 223, 229–32 & n.5 (Md.
2010); see also D’Aoust v. Diamond, 36 A.3d 941, 962 (Md. 2012) (stating
that Clea has been “super[s]eded by statute”). In short, even as to claims
based on the Maryland Declaration of Rights, “Maryland public officials
may . . . claim immunity for their official acts on statutory grounds.”
Houghton, 989 A.2d at 229.
Based on Clea, Maryland is sometimes cited as a state that refuses
to extend common law immunities to constitutional tort claims. See, e.g.,
Gary S. Gildin, Redressing Deprivations of Rights Secured by State
Constitutions Outside the Shadow of the Supreme Court’s Constitutional
Remedies Jurisprudence, 115 Penn St. L. Rev. 877, 903–04 (2011). But
this is only part of the story because Maryland’s courts have given effect
to statutory immunities.
Likewise Mississippi. In City of Jackson v. Sutton, the Mississippi
Supreme Court found that the plaintiff’s constitutional damage claims
were barred by the immunity provisions of the Mississippi tort claims act,
which contained the exclusive avenue for relief. 797 So. 2d 977, 980–81
(Miss. 2001). Only declaratory actions and not damage claims could be
brought outside the act. Id. at 980.
In addition, as already noted, it appears that constitutional damage
actions in Massachusetts and New Jersey are subject to the limits in the
relevant statute—although in those two states it is the civil rights act
rather than the tort claims act.
New York also subjects constitutional tort claims to the statutory
framework applicable to other tort claims against the state. In Brown v.
State, the New York Court of Appeals held “that a cause of action to recover
19
damages may be asserted against the State for violation of the Equal
Protection and Search and Seizure Clauses of the State Constitution.” 674
N.E.2d 1129, 1138–39 (N.Y. 1996). The claim arose from a five-day “street
sweep” involving police stops of all nonwhite males in the city after an
elderly white woman reported that a black male attacked her. Id. at 1131–
32. The claimants asked the court to recognize constitutional tort claims
for money damages under the New York Constitution. Id. at 1133.
The court acknowledged that “if we are to recognize a damage
remedy it must be implied from the Constitution itself.” Id. at 1137. The
court held that “[a] civil damage remedy cannot be implied for a violation
of the State constitutional provision unless the provision is self-executing.”
Id. The court concluded that the search and seizure and equal protection
clauses of the state constitution were self-executing but acknowledged
that a claim for damages also required a determination of “whether the
remedy of damages for the invasion of . . . rights [established by the self-
executing provisions] will be recognized.” Id. at 1137–38.
The court noted that injunctive or declaratory relief would not help
the claimants, nor would exclusion, because the claimants were not
charged with a crime. Id. at 1141. Therefore, damages were a necessary
deterrent for the State’s misconduct. Id. The court concluded, “[b]y
recognizing a narrow remedy for violations of [the state equal protection
and search and seizure clauses], we provide appropriate protection against
official misconduct at the State level.” Id.
Notably, New York has waived its sovereign immunity for damages
actions against the State. Id.; id. at 1146 (Bellacosa, J., dissenting) (“The
state hereby waives its immunity from liability and action and hereby
assumes liability and consents to have the same determined in accordance
with the same rules of law as applied to actions in the supreme court
20
against individuals or corporations.” (Emphasis omitted.) (quoting N.Y. Ct.
Cl. Act. § 8 (McKinney))). The majority in Brown concluded that this waiver
removed the defense of sovereign immunity for tort actions, including
constitutional torts. Id. at 1134–36 (majority opinion). The dissent
disagreed that the waiver should be applied in constitutional tort cases.
See id. at 1147–48 (Bellacosa, J., dissenting).
However, the majority pointed out that many of the legal defenses
identified by the dissent can be raised by the state “to avoid paying
damages for some tortious conduct because, as a matter of policy, the
courts have foreclosed liability.” Id. at 1141 (majority opinion). These
defenses include legislative or judicial immunity, immunity for “quasi-
judicial or discretionary actions,” the “special duty rule” (under which “a
plaintiff cannot recover against a municipality for failure to supply police
protection or similar services absent a special relationship between the
plaintiff and the police or municipality”), and immunity from punitive
damages. Id.
No New York decisions after Brown have considered whether a
defendant can assert the defense of qualified immunity. Instead, the
courts generally turn down constitutional tort claims because other
remedies are available. In a 2001 case, the New York Court of Appeals
rejected a constitutional tort claim arising out of an unlawful search,
reasoning as follows:
Moreover, plaintiff fails to demonstrate how money
damages are appropriate to ensure full realization of her
asserted constitutional rights. Even after years of discovery,
plaintiff has not distinguished her case from that of any
criminal defendant who has been granted suppression, or
reversal of a conviction, based on technical error at the trial
level. Plaintiff has shown no grounds that would entitle her
to a damage remedy in addition to the substantial benefit she
already has received from dismissal of the indictment and
release from incarceration.
21
Martinez v. City of Schenectady, 761 N.E.2d 560, 564 (N.Y. 2001); see, e.g.,
Shelton v. N.Y. State Liquor Auth., 878 N.Y.S.2d 212, 218 (App. Div. 2009)
(“Although, in limited situations, a private cause of action to recover
monetary damages for state constitutional violations can arise, no such
claim will lie where the claimant has an adequate remedy in an alternate
forum.” (Citations omitted.)).
C. States That Impose a Higher Burden on Bringing a
Constitutional Tort. In two states referenced in Godfrey, i.e., Michigan
and Wisconsin, courts have determined that constitutional tort damage
claims are available but have subjected such claims to a more demanding
legal standard. In Michigan, the violation must have resulted from a state
custom or policy to hold the state liable. In Wisconsin, the court required
an intentional violation of the state constitution.
Constitutional torts in Michigan have their genesis in Smith v.
Department of Public Health, 410 N.W.2d 749 (Mich. 1987). There, one
plaintiff brought an action against state and public officials for an alleged
violation of the state and federal constitutions, and another plaintiff sued
the director of state police for alleged violations of his civil rights. Id. at
753–54, 767. Among other holdings, the court explicitly noted two things:
1) “Where it is alleged that the state, by virtue of custom or policy, has
violated a right conferred by the Michigan Constitution, governmental
immunity is not available in a state court action,” and 2) “A claim for
damages against the state arising from violation by the state of the
Michigan Constitution may be recognized in appropriate cases.” Id. at 751.
Although one of the plaintiff–appellants was found not to have preserved
the issue for review, the court remanded the other’s case for a
determination of whether a violation of the constitutional right had been
22
alleged and had occurred and whether a damage remedy would be
available. Id.
Subsequent cases, however, have limited the reach of Smith. See,
e.g., Lewis v. State, 629 N.W.2d 868, 868, 872 (Mich. 2001) (rejecting a
private cause of action under the equal protection clause of the Michigan
Constitution “because the plain language of this constitutional provision
leaves its implementation to the Legislature”). In Carlton v. Department of
Corrections, the court of appeals emphasized that for the state to be liable
for a constitutional tort, a state “custom or policy” must have mandated
the official or employee’s actions. See 546 N.W.2d 671, 678 (Mich. Ct.
App. 1996). In Jones v. Powell, the supreme court narrowed its holding in
Smith considerably when it held that the “decision in Smith provides no
support for inferring a damage remedy for a violation of the Michigan
Constitution in an action against a municipality or an individual
government employee.” 612 N.W.2d 423, 426 (Mich. 2000) (per curiam).
Recently in Mays v. Snyder, a case arising out of the lead
contamination of the water supply of Flint, Michigan, the court found the
allegations of plaintiffs’ complaint sufficient to allege a statewide
governmental policy and, thus, sufficient to state a claim for damages
under the due process clause of the Michigan Constitution. ___ N.W.2d
___, ___, 2018 WL 559726, at *2, 19–22 (Mich. Ct. App. Jan. 25, 2018).
In Wisconsin, where the court of appeals has indicated that
constitutional torts are permissible under the Wisconsin Constitution, the
plaintiff must meet a high burden to recover. See Old Tuckaway Assocs.
Ltd. P’ship v. City of Greenfield, 509 N.W.2d 323, 328–29 & n.4 (Wis. Ct.
App. 1993). In Old Tuckaway, the Wisconsin Court of Appeals found that
the trial court “did not err in allowing plaintiffs to pursue a direct damage
action based on an intentional denial of due process under the state
23
constitution.” Id. at 328 n.4. However, the court ultimately concluded
that the plaintiff did not meet the burden of showing the intentional denial
of due process and therefore did not address whether such a claim might
be barred by statutory immunities. Id. at 330 n.5. Thus, not only did the
court require an intentional tort, but the question of whether immunities—
including the doctrine of qualified immunity—might bar constitutional tort
claims against individual governmental defendants remains open.
D. States That Do Not Allow a Direct Constitutional Tort. Two
states we cited in Godfrey for recognizing direct damage claims under state
constitutions—California and Texas—no longer appear to do so.
In Godfrey, we referenced two California cases that date from 1979
and 1982 respectively. 898 N.W.2d at 856 n.2 (citing Gay Law Students
Ass’n v. Pac. Tel. & Tel. Co., 595 P.2d 592, 602 (Cal. 1979); Laguna Publ’g
Co. v. Golden Rain Found. of Laguna Hills, 182 Cal. Rptr. 813, 835 (Ct.
App. 1982)). But currently in California, there is no constitutional
provision under which a direct claim for damages is clearly available. The
California Supreme Court and other California appellate courts have found
that freestanding damages actions may not be brought for violations of the
state constitutional rights to free speech, due process, equal protection, or
the right to petition the government. See Degrassi v. Cook, 58 P.3d 360,
367 (Cal. 2002) (freedom of speech); Katzberg v. Regents of Univ. of Cal.,
58 P.3d 339, 358 (Cal. 2002) (due process); MHC Fin. Ltd. P’ship Two v.
City of Santee, 107 Cal. Rptr. 3d 87, 98–99 (Ct. App. 2010) (right to
petition); Carlsbad Aquafarm, Inc. v. State Dep’t of Health Servs., 100 Cal.
Rptr. 2d 87, 92 (Ct. App. 2000) (due process); Gates v. Super. Ct., 38 Cal.
Rptr. 2d 489, 512, 517 (Ct. App. 1995) (equal protection).
In Hernandez v. Hillsides, Inc., the California Supreme Court said it
was “an open question whether the state constitutional privacy provision,
24
which is otherwise self-executing and serves as the basis for injunctive
relief, can also provide direct and sole support for a damages claim.” 211
P.3d 1063, 1072 (Cal. 2009). Iowa has no comparable provision.
In Godfrey, we also cited Jones v. Memorial Hospital System, a Texas
intermediate appellate decision. See 898 N.W.2d at 857 n.2 (citing Jones,
746 S.W.2d 891, 893–94 (Tex. App. 1988)). But subsequent to Jones, the
Texas Supreme Court has determined there is no right to sue for damages
under the Texas Constitution. See City of Beaumont v. Bouillion, 896
S.W.2d 143, 149 (Tex. 1995) (“[T]here is no implied private right of action
for damages under the Texas Constitution when an individual alleges the
violation of speech and assembly rights.”). In City of Elsa v. M.A.L., three
former police officers brought a constitutional tort action against the city
when it allegedly disclosed to the media they had left the force following
positive drug tests. 226 S.W.3d 390, 391 (Tex. 2007) (per curiam). The
officers asserted violations of their state constitutional right to privacy and
sought monetary damages and equitable and injunctive relief. Id. The
Texas Supreme Court reaffirmed that governmental entities could not be
sued in damages for violating the Texas Constitution. Id. at 392. 3
3Two other jurisdictions that have not recognized direct constitutional damage
claims are Florida and Minnesota.
Florida intermediate appellate courts have repeatedly found that monetary
damages are unavailable for violations of state constitutional rights. See Bradsheer v.
Fla. Dep’t of Highway Safety & Motor Vehicles, 20 So. 3d 915, 921 (Fla. Dist. Ct. App.
2009); Fernez v. Calabrese, 760 So. 2d 1144, 1146 (Fla. Dist. Ct. App. 2000); Garcia v.
Reyes, 697 So. 2d 549, 549–50 (Fla. Dist. Ct. App. 1997). The state supreme court has
never directly addressed this issue. See Resha v. Tucker, 670 So. 2d 56, 57 (Fla. 1996)
(finding that a constitutional violation by a state official acting outside the scope of her
official duties did not give rise to an action for money damages under the specific facts of
the case). One intermediate appellate court has said that even if such a cause of action
against state officials existed, it would be barred by statutory immunity. See Garcia, 697
So. 2d at 550 (“We further find that if [a cause of action for money damages against the
state, its agencies or employees acting in their official capacities for police misconduct
arising directly under the due process clause] existed, a lawsuit against the [city] and its
police officer . . . would be barred by sovereign immunity.”).
25
E. States Where Immunity Is an Open Issue. In two jurisdictions
that permit direct constitutional claims for damages, Montana and North
Carolina, immunity appears to be an open issue. Both jurisdictions allow
constitutional damage claims only when there is no analogous statutory
or common-law cause of action.
In Dorwart v. Caraway, 58 P.3d 128, 131, 137 (Mont. 2002), the
Montana Supreme Court found that the plaintiff could bring a direct
damages action for violation of the due process, search and seizure, and
privacy clauses of the Montana Constitution. It declined to adopt a Harlow
form of qualified immunity analogous to that available for violations of the
United States Constitution. Id. at 139–40. However, it remains an open
question whether statutory immunities generally available to public
defendants can be used in the defense of constitutional tort actions. See
Nickel v. Faycosh, No. DA 09–0032, 2009 WL 3319990, at *3–4 (Mont. Oct.
14, 2009) (declining to decide the issue). Furthermore, if adequate
Twenty-four years ago, in a case involving a tax that violated the Federal
Constitution, the Florida Supreme Court said, “Sovereign immunity does not exempt the
State from a challenge based on violation of the federal or state constitutions, because
any other rule self-evidently would make constitutional law subservient to the State’s
will.” Dep’t of Revenue v. Kuhnlein, 646 So. 2d 717, 721, 724 (Fla. 1994). But Kuhnlein
has not been used for that proposition by a Florida court since it was written. As noted,
no Florida appellate court has actually recognized a direct damages claim under the
Florida Constitution.
To date, Minnesota similarly has not recognized an action for damages for alleged
violations of the state constitution. See Laliberte v. State, No. A13–0907, 2014 WL
1407808, at *2 (Minn. Ct. App. Apr. 14, 2014); Davis v. Hennepin County, No. A11–1083,
2012 WL 896409, at *2 (Minn. Ct. App. Mar. 19, 2012); see also Dean v. City of Winona,
868 N.W.2d 1, 9 (Minn. 2015) (Lillehaug, J., concurring) (describing the appellants’
rejected theory of recovery of nominal damages under the remedies clause for a violation
of the state constitution as “novel”).
Thirty years ago, in Elwood v. Rice County, the Minnesota Supreme Court held
that Harlow-style qualified immunity did not apply to state common law claims but that
Minnesota’s own official immunity doctrine applied. 423 N.W.2d 671, 677 (Minn. 1988).
This doctrine requires proof of “a willful or malicious wrong.” Id. (quoting Susla v. State,
247 N.W.2d 907, 912 (Minn. 1976). Regardless, Minnesota has not recognized stand-
alone constitutional damage claims.
26
remedies exist under statutory or common law, the plaintiff is not entitled
to bring a constitutional tort claim. See Sunburst Sch. Dist. No. 2 v. Texaco,
Inc., 165 P.3d 1079, 1093 (Mont. 2007) (finding that the recent adoption
of Restatement (Second) of Torts § 929 to allow for the recovery of
restoration damages meant that the district court “erred in instructing the
jury on the constitutional tort theory where . . . adequate remedies exist
under statutory or common law”); see also Salminen v. Morrison &
Frampton, PLLP, 339 P.3d 602, 611 (Mont. 2014) (“Since the Salminens
have a basis in law for a claim to redress this allegation, they need not
proceed under the Constitution.”).
North Carolina also falls into this wait-and-see category. In Corum
v. University of North Carolina, the North Carolina Supreme Court decided
that a plaintiff may recover damages for a violation of a state constitutional
right when there is no common law or statutory remedy. 413 S.E.2d 276,
289 (N.C. 1992). That case involved alleged violations of the plaintiff’s
right to free speech, although other cases have involved other
constitutional rights. See id.; Sale v. State Highway & Pub. Works Comm’n,
89 S.E.2d 290, 297 (N.C. 1955) (recognizing a cause of action under the
state due process clause); Adams v. City of Raleigh, 782 S.E.2d 108, 114–
15 (N.C. Ct. App. 2016) (finding that common-law false arrest provided a
sufficiently analogous remedy to preclude a constitutional claim, even if
such a false arrest claim might not succeed in the particular case); Davis
v. Town of S. Pines, 449 S.E.2d 240, 248 (N.C. Ct. App. 1994) (finding
plaintiff’s “constitutional right not to be unlawfully imprisoned and
deprived of her liberty [was] adequately protected by her common law claim
of false imprisonment,” and she could thus not bring a constitutional tort
claim). The Corum court noted that
27
when public officials invade or threaten to invade the personal
or property rights of a citizen in disregard of law, they are not
relieved from responsibility by the doctrine of sovereign
immunity even though they act or assume to act under the
authority and pursuant to the directions of the State.
413 S.E.2d at 292. However, although officials could be sued in their
official capacities, they could not be sued in their individual capacities. Id.
at 292–93.
Later, that court addressed this issue again in Craig ex rel. Craig v.
New Hanover County Board of Education when a plaintiff filed a damages
action against the board of education and the principal of his middle
school in her individual and official capacities after the plaintiff was
sexually assaulted. 678 S.E.2d 351, 352 (N.C. 2009). The court’s holding
indicated that the defense of sovereign immunity cannot be applied to
prevent a plaintiff from redressing a constitutional wrong. Id. at 356–57.
However, the court also limited its ruling by stating,
This holding does not predetermine the likelihood that
plaintiff will win other pretrial motions, defeat affirmative
defenses, or ultimately succeed on the merits of his case.
Rather, it simply ensures that an adequate remedy must
provide the possibility of relief under the circumstances.
Id. at 355. Thus, other defenses may not necessarily be precluded, even if
they would leave the plaintiff without a remedy. As one commentator
queried,
Does being time-barred by a statute of repose preclude the
possibility of relief? What about qualified immunity? In Craig,
a direct constitutional claim was allowed because Craig’s
claim was precluded by governmental immunity, “regardless
of his ability to prove his case.” What was left unclear,
however, is whether any other procedural bar or well-pled
defense would be treated differently.
Matthew R. Gauthier, Kicking and Screaming: Dragging North Carolina’s
Direct Constitutional Claims into the Twenty-First Century, 95 N.C. L. Rev.
28
1735, 1747–48 (2017) [hereafter Gauthier, Kicking and Screaming]
(footnotes omitted) (quoting Craig, 678 S.E.2d at 355).
VI. The Proper Approach in Iowa.
A. Strict Liability Would Go Too Far. This leads us to Iowa law
and the certified question.
To begin with, we are convinced that constitutional tort claims in
Iowa should be subject to some limit. As we have already seen, the other
states that allow such claims limit liability in some fashion, except for
Montana and North Carolina. Those two states have not decided the issue
yet.
Consider also the three Iowa precedents we singled out in Godfrey
for having recognized constitutional torts. See 898 N.W.2d at 862–63.
Each involved bad faith conduct, and one of those cases made it clear that
malice and lack of probable cause were elements of the claim.
McClurg v. Brenton arose when a search party forced their way late
at night into a house suspected of harboring stolen chickens, although the
party lacked a warrant and although nighttime searches were illegal at the
time in the absence of special authority. 123 Iowa 368, 369–70, 372, 98
N.W. 881, 881–82 (1904). We further described the exceptional
circumstances of the case as follows:
There is testimony, also, that the search was conducted, by
some of the party, at least, in a loud and boisterous manner,
and with little regard for the sensibilities of the plaintiff and
his family. One of the searchers candidly admits that he was
a “little enthused,” and did not pay much attention to the
details; and it is said by one witness that another member of
the party became somewhat confused as to the real object of
the search, and demanded to know whether there was “any
beer in the cellar.” The discouraging answer that there “was
no cellar” seems not to have been fully credited, for it is further
testified that the knot holes in the floor were carefully probed
with a pocket rule, to ascertain the amount of available space
thereunder. Upon such a state of the record, we think it very
29
clear that the jury should have been allowed to pass upon the
issue of fact presented by the pleadings. If plaintiff’s home
was invaded in the manner claimed by him, he has suffered a
wrong for which the law will afford him substantial remedy.
Id. at 371, 98 N.W. at 882.
Krehbiel v. Henkle was another case involving egregious misconduct
in connection with a search. 142 Iowa 677, 678–79 121 N.W. 378, 379
(1909). There we were explicit that “evidence of malice and want of
probable cause for the prosecution must be shown in order to sustain a
recovery of damages.” Id. at 680, 121 N.W. at 380. After invoking article
I, section 8 we said, “[A] violation of this right without reasonable ground
therefor gives the injured party a right of action.” Id. (emphasis added). 4
Lastly, in Girard v. Anderson, we held that when two private
individuals broke into a locked home to forcibly repossess property, the
homeowner had a cause of action against them for trespass and
conversion. 219 Iowa 142, 144–45, 148, 257 N.W. 400, 400–01, 403
(1934). The case involves private defendants and therefore does not speak
to the standards for the recovery of damages against government
defendants. See id. at 144; 257 N.W. at 400. Even so, the facts presented
by the plaintiff involved forcibly breaking and entering. Id.
In short, some limits are consistent with the Iowa precedent we
invoked in Godfrey.
4In Godfrey, we characterized Krehbiel as a damages action for violation of article
I, section 8, not as a malicious prosecution case. 898 N.W.2d at 862. We quote Krehbiel
again:
The right of the citizen to security in person and property against wrongful
seizures and searches is one which the law has ever zealously safeguarded
and has express recognition in our state Constitution. Const. Iowa, art.
1, § 8. That a violation of this right without reasonable ground therefor
gives the injured party a right of action is thoroughly well settled.
142 Iowa at 679–80, 121 N.W. at 379–80. Krehbiel went on to note that “[t]he essence of
the wrong done to [the plaintiff] was the unreasonable invasion of his home.” Id. at 681,
121 N.W. at 380.
30
We further note that at the time our Constitution was adopted,
public officials received the benefit of a form of qualified immunity. In
Hetfield v. Towsley, we rejected a claim against a justice of the peace and
constable for wrongly taking away the plaintiff’s oxen. 3 Greene 584, 584–
85 (Iowa 1852). We explained,
The justice and constable, in what they did, were in the
performance of official duty. Unless they exceeded their
jurisdiction, or acted corruptly, or without authority of law,
they are not liable. Although the justice might have acted
erroneously, still he was not liable as a trespasser. The
injured party had his remedy by certiorari or appeal. The
demurrers admit the official character of the officers, and also
that they acted in good faith, as stated by them in their special
pleas.
Id. at 585. Hetfield cannot be explained as a judicial immunity case
because the court also exonerated the constable. See also Howe v. Mason,
12 Iowa 202, 203–04 (1861) (“Officers required by law to exercise their
judgment are not answerable for mistakes in law or mere errors of
judgment without any fraud or malice.”); Plummer v. Harbut, 5 Iowa 308,
311–14 (1857) (finding that where the defendants broke and entered the
plaintiff’s close pursuant to a warrant and took and destroyed the liquors
therein, even though the entry was without proper authority the plaintiff
could not recover the value of the illegal liquors and could recover only
nominal damages for the breaking and entering because the defendants
had acted in good faith).
In addition, our conclusion in Godfrey that the Iowa Constitution
can sustain a damages remedy without prior action by the Iowa legislature
does not mean the Iowa courts have no role in crafting that remedy. Nor
does it mean that traditional tort rules are irrelevant. The Restatement
(Second) of Torts section 874A makes both of these points. Restatement
(Second) of Torts § 874A (Am. Law Inst. 1979). That particular section
31
covers “Tort Liability for Violation of Legislative Provision,” while including
“constitutional provisions” within its scope. See id. & cmt. a. As we noted
in Godfrey, section 874A has been cited as support for constitutional
damage claims in other jurisdictions. See 898 N.W.2d at 858, 860.
Section 874A contemplates that a court implying a constitutional (or
statutory) cause of action will “us[e] a suitable existing tort action or a new
cause of action analogous to an existing tort action.” See Restatement
(Second) of Torts § 874A. Comment f reiterates this point and states that
a civil action to effectuate a constitutional provision “will ordinarily be
assimilated to the most similar common law tort.” Id. cmt. f. Comment j
adds that
[w]hether the tort action provided by the court in furtherance
of the policy of a legislative [or constitutional] provision is to
be treated as an intentional tort, as negligence or as a form of
strict liability, or perhaps as involving all three . . . , depends
primarily upon construction of the statute [or constitutional
provision] itself.
Id. cmt. j.
Moreover, strict damages liability for any constitutional wrong would
lead to untenable results. On this point, it is worth analyzing a few of the
cases where we found state and local officials were entitled to various
immunities when claims had been brought against them under the United
States Constitution through 42 U.S.C. § 1983. Should all those
immunities vanish just because claims are also brought under the Iowa
Constitution?
In Minor v. State, the plaintiff asserted that two employees of the
Iowa Department of Human Services had improperly caused her child to
be removed from her care and failed to protect that child once placed in
foster care, in violation of her Fourth and Fourteenth Amendment rights.
32
819 N.W.2d 383, 392 (Iowa 2012). There, we determined that the
employees were entitled to qualified immunity. Id. at 400–04.
In Teague v. Mosley, the plaintiff sued three of the five members of
a county board of supervisors, alleging they had violated his constitutional
rights by not providing a safe environment at the jail. 552 N.W.2d 646,
647 (Iowa 1996). We adopted a rule of absolute immunity for supervisors
acting in a legislative capacity. Id. at 649.
In Dickerson v. Mertz, the plaintiff sued after having been issued
citations for hunting without a valid license and later for “taking deer by
auto,” and subsequently having been acquitted of both charges. 547
N.W.2d 208, 210–11 (1996). We determined that the defendant officers of
the Department of Natural Resources were entitled to qualified immunity
from federal constitutional claims because the “plaintiff ha[d] not shown a
factual issue concerning the unreasonableness of defendants’ actions
based on the existing law.” Id. at 215–16.
We believe the government officials in these cases would be reluctant
to fully perform their jobs if they could be found strictly liable for actions
that happened to violate someone’s constitutional rights. There is a
danger of overdeterrence. Search and seizure involves judgment calls. For
example, in In re Pardee, 872 N.W.2d 384 (Iowa 2015), this court was
recently divided on whether a twenty-five-minute investigatory stop of a
vehicle was too long. Five members of our court said it was; two said it
wasn’t. See id. at 397 (concluding the stop had been impermissibly
prolonged); id. at 397–99 (Cady, C.J., dissenting) (concluding the stop had
not been improperly prolonged). The line between good police work and
overzealous police work can be razor thin. It is certainly fair to exclude
the evidence from any ensuing criminal proceeding whenever the line is
crossed, even slightly. But if the law enforcement officer also is subject to
33
a damage action, this could lead him or her to be reluctant to act at all in
a gray area. 5
And there would be no reason for anyone—including judges—to get
special treatment. For example, in this particular case, the magistrate
who issued the arrest warrant for Baldwin would be subject to a damages
suit as well.
It is true we said in State v. Tonn that “[a] trespassing officer is liable
for all wrong done in an illegal search or seizure.” 195 Iowa 94, 106, 191
N.W. 530, 535 (1923), abrogated by State v. Cline, 617 N.W.2d 277, 291
(Iowa 2000). But we said this to justify eliminating the exclusionary rule
5Furthermore, many lawful searches and seizures do not result in a criminal
prosecution. Thus, when law enforcement chooses to perform a search or seizure, in
many cases there will be no “benefit” to the government, only a risk of being subject to a
damages action based on after-the-fact second-guessing. This may incentivize law
enforcement not to go forward unless there is some protection for good-faith conduct.
An academic has raised some additional points about incentives:
Moreover, the incentives facing government officers are skewed by a cause-
of-action problem. An individual hurt by government conduct usually
knows exactly whom to blame. The causal connection between the
plaintiff’s injury and the defendant’s conduct is typically clear, and the
victim has no trouble stating a cause of action. A person injured by official
inaction—by the officer who foregoes an arrest or the school principal who
tolerates a troublemaker—often has difficulty identifying any officer
responsible for subsequent injury and proving a causal connection. As a
result, the risk of being sued for erroneous action is much higher than the
risk of being sued for erroneous inaction, though the two may be equally
costly. This disparity increases the incentive to protect oneself by doing
less.
Even aside from the cause-of-action problem, the incentive
structure of government officials encourages inaction. The idea is most
plausible for civil servants, who face punishment or loss for demonstrable
misconduct but who are rarely able to capture the gains of effective action.
John C. Jeffries Jr., The Liability Rule for Constitutional Torts, 99 Va. L. Rev. 207, 244–45
(2013) (footnotes omitted).
It is true that public officials are typically indemnified for damage actions against
them. See Joanna C. Schwartz, Police Indemnification, 89 N.Y.U. L. Rev. 885, 890 (2014);
Iowa Code § 669.5(2)(a); id. § 670.8. But the indemnitor has the ability and the motive
to influence the indemnitee’s behavior. See, e.g., John Rappaport, How Private Insurers
Regulate Public Police, 130 Harv. L. Rev. 1539, 1573–95 (2017).
34
in Iowa. Id. at 106–07, 191 N.W. at 535–36. Tonn was not perhaps our
court’s most shining moment. It involved the prosecution of a member of
the labor organization known as the International Workers of the World
(IWW) who was “engaged in spreading the propaganda of the organization.”
Id. at 106, 191 N.W. at 535. Two justices dissented from the abandonment
of the exclusionary rule, one of them also questioning the constitutionality
of the law under which the defendant was prosecuted. Id. at 116, 120–21,
191 N.W. at 539, 541 (Weaver, J., dissenting). Today, we would probably
view the IWW member’s conduct as protected speech.
More recently, in Cline, we rejected a good-faith exception to the
exclusionary rule under article I, section 8, making essentially the opposite
point from what we had said in Tonn:
In our early Tonn case, we observed that the exclusionary rule
was unnecessary to enforce the constitutional right because
other remedies were available. Whatever truth there may have
been to this statement when it was made, it is not valid today.
There is simply no meaningful remedy available to one who
has suffered an illegal search other than prohibiting the State
from benefiting from its constitutional violation. A civil
remedy would probably be unsuccessful because the good
faith that prevents exclusion would also preclude an action
for damages.
617 N.W.2d at 291. Cline is our law today: We have approved a
comprehensive exclusionary rule cognizant of limits on damage actions.
Thus, the right to recover damages for a constitutional violation does
not need to be congruent with the constitutional violation itself. Such an
approach is not consistent with Iowa precedent or Restatement section
874A, and would result in too little play in the joints. 6 Logically, the
6According to Professor Jeffries,
some gap between constitutional rights and the damages remedy is a good
thing. It is not a problem to be solved, but an asset to be preserved.
Eliminating that gap entirely would have a baleful effect on the content
and development of constitutional law.
35
threshold of proof to stop an unconstitutional course of conduct ought to
be less than the proof required to recover damages for it. Indeed, if a right
of recovery for a constitutional tort existed whenever a constitutional
violation occurred, it stands to reason that such recovery could not be
subject to other limits, such as a statute of limitations. See Gauthier,
Kicking and Screaming, 95 N.C. L. Rev. at 1747–48. 7
B. Qualified Immunity Based on the Exercise of Due Care
Should Be Available for Damage Claims Under Article I, Sections 1
and 8. If strict liability is not the correct standard, what is? For purposes
of article I, sections 1 and 8, we are convinced that qualified immunity
should be available to those defendants who plead and prove as an
affirmative defense that they exercised all due care to conform to the
requirements of the law.
As we have noted, a number of states allow Harlow immunity for
direct constitutional claims. In those jurisdictions, there cannot be
liability unless the defendant violated “clearly established . . .
constitutional rights of which a reasonable person would have known.”
Harlow, 457 U.S. at 818, 102 S. Ct. at 2738. Harlow examines objective
Jeffries, 99 Va. L. Rev. at 246. He goes on to explain that limitations on damages facilitate
the evolution of constitutional law:
At each and every stage, from wholesale innovation to minor adjustment,
these decisions found unconstitutional acts that previously could have
been thought lawful. All these acts had victims, and all the victims had
injuries. If awarding damages had been a necessary corollary of finding
violations, the potential impact would have been staggering.
Id. at 248 (footnote omitted). Simply stated, “[u]nder current law, the prospect of
awarding money damages does not constrain the definition of constitutional rights.” Id.
For example, in Iowa, would it inhibit developments of article I, section 17
jurisprudence if every individual whose sentence was later determined to be
unconstitutional could recover constitutional tort damages?
7Of course, this does not mean constitutional violations would go unremedied.
The issue is whether a direct damages remedy would be available.
36
reasonableness; thus, in some ways it resembles an immunity for officials
who act with due care. However, it is centered on, and in our view gives
undue weight to, one factor: how clear the underlying constitutional law
was. Normally we think of due care or objective good faith as more
nuanced and reflecting several considerations. See, e.g., Hetfield, 3
Greene at 585. Factual good faith may compensate for a legal error, and
factual bad faith may override some lack of clarity in the law.
Other jurisdictions that have opened the doors to direct
constitutional damage claims have done so within the framework of their
existing tort claims acts. Often, these laws shield defendants who act with
due care or even who are guilty of ordinary negligence. See, e.g., Martin v.
Brady, 802 A.2d 814, 819 (Conn. 2002) (finding the defendants would be
liable only if their conduct was “wanton, reckless or malicious”); Newell,
340 N.E.2d at 348 (“[A] public employee is not liable for his act in the
execution or enforcement of any law unless his act ‘constitutes willful and
wanton negligence.’ ” (quoting 85 Ill. Rev. Stat. § 2–202 (1973)).
Iowa’s tort claims acts already protect government officials in some
instances when they exercise due care. See, e.g., Iowa Code § 669.14(1)
(excepting “[a]ny claim based upon an act or omission of an employee of
the state, exercising due care, in the execution of a statute or regulation,
whether or not such statute or regulation be valid, or based upon the
exercise or performance or the failure to exercise or perform a discretionary
function or duty on the part of a state agency or an employee of the state,
whether or not the discretion be abused” (emphasis added)); id.
§ 670.4(1)(c) (excepting “[a]ny claim based upon an act or omission of an
officer or employee of the municipality, exercising due care, in the
execution of a statute, ordinance, or regulation whether the statute,
ordinance or regulation is valid, or based upon the exercise or performance
37
or the failure to exercise or perform a discretionary function or duty on the
part of the municipality or an officer or employee of the municipality,
whether or not the discretion is abused” (emphasis added)). The problem
with these acts, though, is that they contain a grab bag of immunities
reflecting certain legislative priorities. Some of those are unsuitable for
constitutional torts.
A third set of jurisdictions simply impose higher fault standards as
a prerequisite to liability. See Mays, ___ N.W.2d at ___, 2018 WL 559726,
at *19–22 (requiring a showing of a custom or policy); Old Tuckaway
Assocs., 509 N.W.2d at 330 (requiring proof of an intentional denial of due
process).
We have decided not to follow any of these lines of authority exactly.
We believe instead that qualified immunity should be shaped by the
historical Iowa common law as appreciated by our framers and the
principles discussed in Restatement (Second) of Torts section 874A.
This means due care as the benchmark. Proof of negligence, i.e.,
lack of due care, was required for comparable claims at common law at
the time of adoption of Iowa’s Constitution. See Hetfield, 3 Greene at 585;
Howe, 12 Iowa at 203–04. And it is still the basic tort standard today. See
Restatement (Second) of Torts § 874A (discussing reliance on analogous
tort standards).
Because the question is one of immunity, the burden of proof should
be on the defendant. See Anderson v. State, 692 N.W.2d 360, 364 (Iowa
2005) (indicating that the party asserting the discretionary function
immunity has the burden to prove it). Accordingly, to be entitled to
38
qualified immunity a defendant must plead and prove as an affirmative
defense that she or he exercised all due care to comply with the law. 8
We find support for our approach in a recent and thoughtful critique
of Harlow. See John C. Jeffries Jr., The Liability Rule for Constitutional
Torts, 99 Va. L. Rev. 207 (2013). Professor Jeffries notes, “The basic and
essential remedy for most constitutional rights is the opportunity to assert
them defensively against government coercion.” Id. at 242. Nevertheless,
Professor Jeffries concludes that “damages are appropriate to the
vindication of constitutional rights, absent countervailing concerns, of
which the most important and obvious would be superseding remedial
legislation.” Id. at 259 (footnotes omitted). “[C]onstitutional tort actions
are presumptively appropriate.” Id. 9
In the end, Professor Jeffries condemns Harlow as “an overly
legalistic and therefore overly protective shield,” but advocates for a more
straightforward “protection for reasonable error.” Id. at 258–60. “The
problem with current law is its implicit equation of reasonable error with
the space between decided cases.” Id. at 260. 10
8We have in the past invalidated presumptions rendering one party responsible
for another party’s illegal conduct unless the first party proves he or she exercised due
care. See Westco Agronomy Co. v. Wollesen, 909 N.W.2d 212, 222–23 (Iowa 2017);
Hensler v. City of Davenport, 790 N.W.2d 569, 587–89 (Iowa 2010). That is not the
situation here. The issue is what a defendant to a constitutional damages action under
article I, sections 1 and 8 must show to obtain qualified immunity for his or her own
conduct.
9Professor Jeffries’s stance here is similar to the one we took in Godfrey on the
basic issue of whether constitutional torts should be allowed. Godfrey generally approved
of direct damages actions under the Iowa Constitution but the special concurrence that
provided the decisive vote determined that a damages remedy under article I, section 6
for discrimination based on sexual orientation was not needed in light of an existing,
adequate remedy within the Iowa Civil Rights Act. See 898 N.W.2d at 880–81 (Cady, C.J.,
specially concurring).
10Professor Jeffries acknowledges that “[o]n balance, academic opinion favors
[strict liability for constitutional violations].” 99 Va. L. Rev. at 241. On the other hand,
as we have discussed, no other state judiciary has opted for strict liability.
39
We agree. Constitutional torts are torts, not generally strict liability
cases. Accordingly, with respect to a damage claim under article I,
sections 1 and 8, a government official whose conduct is being challenged
will not be subject to damages liability if she or he pleads and proves as
an affirmative defense that she or he exercised all due care to conform to
the requirements of the law.
We leave open a number of other issues. These include the
possibility that constitutional claims other than unlawful search and
seizure may have a higher mens rea requirement, such as intent,
embedded within the constitutional provision itself. In other words, it may
take more than negligence just to violate the Iowa Constitution. They also
include the possibility that common law absolute immunities, such as
judicial immunity or quasi-judicial immunity, could apply to state
constitutional claims. And they include the potential applicability of
provisions in chapters 669 and 670 other than sections 669.14 and 670.4.
We do not address those issues today.
VII. Conclusion.
We have provided the answer to the certified question as set forth
above. Costs shall be divided equally among the parties. Iowa Code
§ 684A.5.
CERTIFIED QUESTION ANSWERED.
All justices concur except Appel and Hecht, JJ., who dissent.
40
#17–1592, Baldwin v. City of Estherville
APPEL, Justice (dissenting).
I dissent. The controversy in this case involves an allegation of a
specific constitutional violation, namely, whether an allegedly
unconstitutional seizure of a person by local law enforcement gives rise to
a claim of damages. I would answer the certified question by stating that
there is no immunity available to shield the defendants from liability for
the alleged harm caused by their constitutional torts arising out of article
I, section 1 and article I, section 8 of the Iowa Constitution.
I. Liability of the City for Money Damages.
There is a preliminary issue in the case. The City of Estherville (the
City) is a defendant in this case. The State of Iowa, as an amicus, urges
us to consider whether a local government entity may be sued for money
damages for constitutional violations. The question of the City’s liability
for constitutional violations of its employees is a distinctly different
question than whether individual officers employed by the City are entitled
to some form of qualified immunity for their unconstitutional conduct.
The United States Supreme Court has addressed the question in
Monell v. Department of Social Services, 436 U.S. 658, 98 S. Ct. 2018
(1978). In Monell, the United States Supreme Court held that although
local governments are “persons” under 42 U.S.C. § 1983, they cannot be
held liable under a respondeat superior theory for the constitutional
deprivations arising from the conduct of their employees unless the
conduct was as a result of a government custom or practice. Id. at 690–
91, 98 S. Ct. at 2035–36. The Monell Court did not specifically expand on
the circumstances where a municipality could be found liable under the
statute, but as a matter of practice, when a plaintiff attempts to prove an
unwritten policy or municipal inaction, proof of liability under Monell is
41
“exceptionally difficult.” John M. Greabe, Remedial Discretion in
Constitutional Adjudication, 62 Buff. L. Rev. 881, 907 n.142 (2014).
In an important subsequent case, Owen v. City of Independence, the
United States Supreme Court determined that when a plaintiff
successfully demonstrates that a municipality has a custom or policy that
violated his or her constitutional rights, the municipality is strictly liable
for the violation. 445 U.S. 622, 638, 100 S. Ct. 1398, 1409 (1980). The
Owen Court noted that “in the hundreds of cases from [the common law]
era awarding damages against municipal governments for wrongs
committed by them, one searches in vain for much mention of a qualified
immunity based on the good faith of municipal officers.” Id. at 641, 100
S. Ct. at 1410.
The Owen Court emphasized that the strict-liability approach to
unconstitutional municipal policies and customs has sound policy footing.
Id. at 650, 100 S. Ct. at 1415.
How “uniquely amiss” it would be . . . if the government
itself—“the social organ to which all in our society look for the
promotion of liberty, justice, fair and equal treatment, and the
setting of worthy norms and goals for social conduct”—were
permitted to disavow liability for the injury it has begotten.
Id. at 651, 100 S. Ct. at 1415 (quoting Adickes v. S.H. Kress & Co., 398
U.S. 144, 190, 90 S. Ct. 1590, 1620 (1970) (Brennan, J., concurring in
part and dissenting in part)). According to the Court,
The knowledge that a municipality will be liable for all of its
injurious conduct, whether committed in good faith or not,
should create an incentive for officials who may harbor doubts
about the lawfulness of their intended actions to err on the
side of protecting citizens’ constitutional rights.
Id. at 651–52, 100 S. Ct. at 1416.
The Owen Court sharply distinguished between the liability of
municipalities and liability of individual officials. Id. at 655–56, 100 S. Ct.
42
at 1418. The Court noted that the justification for qualified immunity for
individual officials is based upon the threat of personal liability. Id. Where
liability of municipalities is involved, however, “[t]he inhibiting effect is
significantly reduced, if not eliminated . . . [because] the threat of personal
liability is removed.” Id. at 656, 100 S. Ct. at 1418.
There are substantial reasons for following Owen but not Monell in
determining municipalities’ potential liability for the constitutional wrongs
of their employees. Monell does not involve a constitutional issue, but only
a statutory issue under federal law. See 436 U.S. at 660 & n.1, 98 S. Ct.
at 2020 & n.1. Further, the substantive holding in Monell has been subject
to substantial criticism. See, e.g., David Jacks Achtenberg, Taking History
Seriously: Municipal Liability Under 42 U.S.C. § 1983 and the Debate over
Respondeat Superior, 73 Fordham L. Rev. 2183, 2196 (2005); Michael J.
Gerhardt, The Monell Legacy: Balancing Federalism Concerns and
Municipal Accountability Under Section 1983, 62 S. Cal. L. Rev. 539, 540–
41 (1989); Myriam E. Gilles, Breaking the Code of Silence: Rediscovering
“Custom” in Section 1983 Municipal Liability, 80 B.U. L. Rev. 17, 29–31
(2000). As a result, it is not surprising that several state courts have
declined to follow the statutory interpretation in Monell on the
constitutional question of whether a city is liable for the torts of its
employees under a respondeat superior theory. See, e.g., Town of Port
Deposit v. Petetit, 688 A.2d 54, 65 (Md. Ct. Spec. App. 1992) (holding
municipality may be liable for constitutional torts under respondeat
superior theory); Washington v. Robertson County, 29 S.W.3d 466, 475–77
(Tenn. 2000) (same).
However, the parties, in this case, do not directly address the Monell
issue or the application of Monell in Owen but concentrate their advocacy
on the question of whether individual city employees are entitled to
43
qualified immunity with respect to damage claims arising from their
unconstitutional conduct. Ordinarily, we do not consider issues raised
only by amici and not by the parties themselves. See Press-Citizen Co. v.
Univ. of Iowa, 817 N.W.2d 480, 493 (Iowa 2012); Mueller v. St. Ansgar State
Bank, 465 N.W.2d 659, 660 (Iowa 1991).
The majority in this case has now judicially created a type of
immunity for individual officers. As explained below, I dissent from the
majority’s approach to individual liability for constitutional wrongs. The
majority’s approach, however, increases the pressure to reject the
limitations in Monell and apply the strict-liability approach in Owen across
the board to claims against municipalities.
Nevertheless, the issue of municipal liability for damages caused by
the unconstitutional conduct of its employees was not presented by the
parties in this case, is not addressed in the majority opinion, and is
reserved for another day.
II. Qualified Immunity of Individual Officers.
A. Introduction. I next address the fighting issue joined by the
parties, namely, whether Iowa should adopt a qualified immunity doctrine
patterned after the one adopted by the United States Supreme Court in its
cases under 42 U.S.C. § 1983. The City and the individual defendants
present us with a compendium of federal statutory immunity cases that
they suggest should guide us in determining whether the individual
defendants are entitled to an immunity shield to prevent an award of
damages for injuries they caused through their unconstitutional conduct.
Similarly, the State urges us to follow federal quasi-immunity doctrine for
claims brought against state officers under the Iowa Constitution. The
plaintiff takes the challenge head on, urging us not to follow federal quasi-
44
immunity law. That is the issue that the parties have briefed and asked
us to decide.
B. Rejection of Federal Statutory Qualified Immunity as a
Model for Iowa Constitutional Law.
1. Overview. I begin by emphasizing that the policy-oriented federal
doctrine of statutory qualified immunity does not provide a model for
determining whether individuals are entitled to qualified immunity for
Iowa constitutional torts. The federal doctrine of statutory qualified
immunity progressively dilutes legal norms, embraces numerous false
assumptions, fails to recognize the important role of juries in restraining
government, and is inconsistent with important tenants of Iowa law. We
should not voluntarily drape our constitutional law with the heavy chains
of indefensible doctrine. We should aim to eliminate fictions in our law
and be honest and forthright on the important question of what happens
when officers of the law commit constitutional wrongs that inflict serious
reputational, emotional, and financial harms on our citizens.
2. It’s not the tail of the dog; it’s the dog. First, one must recognize
what is at stake when a doctrine limits remedies available for a legal
violation. The limitation of remedies is not a sideshow, collateral issue, or
footnote in the development of the law. Remedial doctrine is at the heart
of substantive law. As Karl Llewellyn wrote, a “[d]efect of remedy is [a]
defect of right.” Aaron Belzer, Comment, The Audacity of Ignoring Hope:
How the Existing Qualified Immunity Analysis Leads to Unremedied Rights,
90 Denv. U. L. Rev. 647, 673 (2012) [hereinafter Belzer] (quoting Karl N.
Llewellyn, The Bramble Bush 88 (1930)). As Chief Justice Marshall stated
in Marbury v. Madison, “[I]t is a general and indisputable rule, that where
there is a legal right, there is also a legal remedy by suit or action at law,
whenever that right is invaded.” 5 U.S. (1 Cranch) 137, 163 (1803)
45
(quoting 3 William Blackstone, Commentaries on the Laws of England 23
(1765–1769)). As Professor Akhil Reed Amar has more recently observed,
governments acting unconstitutionally “must in some way undo the
violation by ensuring that victims are made whole.” Akhil Reed Amar, Of
Sovereignty and Federalism, 96 Yale L.J. 1425, 1427 (1987) [hereinafter
Amar].
A lack of remedy drives a stake in the heart of a substantive legal
doctrine. In the words of Justice Harlan in Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, contemporary modes of thought at
the time of the United States Constitutional Convention reflected “modes
of jurisprudential thought which appeared to link ‘rights’ and ‘remedies’ in
a 1:1 correlation.” 403 U.S. 388, 400 n.3, 91 S. Ct. 1999, 2007 n.3 (1971)
(Harlan, J., concurring in the judgment). We should tread very carefully
before we limit the scope of remedies for unconstitutional conduct because
we are, in effect, cutting down the scope of the substantive rights involved.
Make no mistake, this case is not about the tail on the dog. It is about the
dog.
The notion that judges may create a “gap” between constitutional
rights and the remedies afforded is untenable. The consequence of such
a gap is to effectively reduce the constitutional protections afforded to the
public. To the extent they are not enforced, the nice words in the
constitution do not mean what they seem to mean.
3. Search and seizure: the wrong place for trenching on remedies for
constitutional torts. Of all the places to engage in constitutional dilution
through sharp remedial restriction, search and seizure law is the last place
to do so. Constitutional protections related to search and seizure are
fundamental to liberty. Under article I, section 8 of the Iowa Constitution,
searches and seizures, subject to a few “jealously and carefully drawn
46
exceptions” where a warrant cannot practicably be obtained, are subject
to the warrant requirement. State v. Ochoa, 792 N.W.2d 260, 285 (Iowa
2010) (quoting State v. Strong, 493 N.W.2d 834, 836 (Iowa 1992)). The
warrant requirement means that the application must be in writing and
not based on ephemeral oral assertions. See Battani v. Grund, 244 Iowa
623, 628, 56 N.W.2d 166, 170 (1952). The warrant application must
establish the basis for the government’s intrusive search and seizure
action before the action is taken—the state may not rely on after-the-fact
recasting of reasons to conform to the results of the search. See State v.
Angel, 893 N.W.2d 904, 915 (Iowa 2017) (Appel, J., dissenting). The search
or seizure must be based upon probable cause and not mere hunches.
See State v. McNeal, 867 N.W.2d 91, 99 (Iowa 2015); State v. Gogg, 561
N.W.2d 360, 363 (Iowa 1997).
The importance of effective enforcement of search and seizure
restrictions on government was not lost on the generation of lawyers and
judges who witnessed the collapse of the rule of law in central Europe in
the 1930s. As Chief Nuremburg Prosecutor Justice Robert Jackson so
eloquently opined after his return from his assignment in immediate
postwar Germany, search and seizure rights
are not mere second-class rights but belong in the catalog of
indispensable freedoms. Among deprivations of rights, none
is so effective in cowing a population, crushing the spirit of
the individual and putting terror in every heart. Uncontrolled
search and seizure is one of the first and most effective
weapons in the arsenal of every arbitrary government.
Brinegar v. United States, 338 U.S. 160, 180, 69 S. Ct. 1302, 1313 (1949)
(Jackson, J., dissenting). See generally Victoria A. Graffeo, Robert H.
Jackson: His Years as a Public Servant “Learned in the Law,” 68 Albany L.
Rev. 539, 546 (2005).
47
Regrettably, the United States Supreme Court has in recent decades
announced a series of opinions that undercut search and seizure
protections. See Silas J. Wasserstrom, The Incredible Shrinking Fourth
Amendment, 21 Am. Crim. L. Rev. 257, 259–61 (1984). The limitation of
constitutional remedies by the Supreme Court has been part of the trend
of the Court to restrict the scope of constitutional protections in the
context of search and seizure. See id. at 291–94, 292 nn.186–87, 300 &
n.216. We must recognize that this case falls squarely within the recent
efforts to limit protections that citizens have from arbitrary government
search and seizure actions. The question cannot be avoided: should we
dilute the search and seizure protections of our citizens enshrined in
article I, section 8 of the Iowa Constitution through a judicially or
legislatively created constitutional immunity of some kind?
The importance of claims brought under article I, section 1 of the
Iowa Constitution cannot be rendered a mere appendage either. Article I,
section 1 was purposefully placed at the beginning of the Bill of Rights.
See 1 The Debates of the Constitutional Convention of the State of Iowa 103–
04 (W. Blair Lord rep. 1857), [hereinafter The Debates],
http://www.statelibraryofiowa.org/services/collections/law-library/iaconst.
It makes the point of emphasizing “inalienable rights,” which, I take it,
includes rights that cannot be abrogated by the legislature, or this court.
Further, the “free and equal” provision of article I, section 1 is at the heart
of our government structure and provided the constitutional foundation to
Coger v. Northwestern Union Packet Co., an important and highly
celebrated case prohibiting discrimination by a steamboat operator
against a female passenger “partly of African descent.” 37 Iowa 145, 147,
153–55 (1873). Like article I, section 8, this constitutional provision is not
48
the place to cut remedial corners. Indeed, it is an area requiring
exceptional remedial vigilance.
In short, when citizens suffer potentially grievous harms from
unconstitutional conduct in violation of article I, section 1 or article I,
section 8, we should require the officials who engaged in the
unconstitutional conduct to bear the burden of the loss. We should not
allow the officials who engage in unconstitutional conduct to respond to
the prayer of the harmed citizen with, “Aw, tough luck. Tut tut. Bye bye.”
4. Sandy foundation: historical common law fiction in federal
statutory immunity cases. In interpreting whether 42 U.S.C. § 1983
provides statutory qualified immunity, the United States Supreme Court
has sometimes stated that the qualified immunity defense simply follows
the common law that existed at the time of the legislation’s passage in
1871. See Nixon v. Fitzgerald, 457 U.S. 731, 745–46, 102 S. Ct. 2690,
2699 (1982). But this overbroad generality is simply wrong.
It is true that at common law, judges and legislators acting within
their appropriate authority were entitled to robust immunity. See Pierson
v. Ray, 386 U.S. 547, 553–54, 87 S. Ct. 1213, 1217–18 (1967) (acts of
judges); Tenney v. Brandhove, 341 U.S. 367, 376, 71 S. Ct. 783, 788 (1951)
(acts of legislators). But the same degree of protection simply did not
extend to officers of the Crown, who were expected “to be mulcted in
damages for their errors of judgment.” Ilan Wurman, Qualified Immunity
and Statutory Interpretation, 37 Seattle U. L. Rev. 939, 987 (2014)
[hereinafter Wurman]. As noted by Justice Brennan in Bivens,
“Historically, damages have been regarded as the ordinary remedy for an
invasion of personal interests in liberty.” 403 U.S. at 395, 91 S. Ct. at
2004 (majority opinion).
49
For example, the outrage of lawless search and seizure by
government officials was recognized at common law in the Wilkes cases,
where very large money judgments were entered against officials who, at
the direction of Lord Halifax, ransacked private premises looking for tell-
tale signs of who authored a scurrilous broadside critical of the Crown.
Wilkes v. Wood (1763) 98 Eng. Rep. 489, 489, 498–99; Huckle v. Money
(1763) 95 Eng. Rep. 768, 768–69; Entick v. Carrington (1765) 95 Eng. Rep.
807, 807–08, 811, 818; see Godfrey v. State, 898 N.W.2d 844, 866–67
(Iowa 2017) (describing the cases). These unlawful searches cost the
officials involved a lot of money. Schoolchildren know about the shot
heard around the world, but we seem to have forgotten about the cases
heard around the world—the Wilkes cases.
Plainly, as Lord Halifax learned to his financial embarrassment in
the Wilkes cases, common law absolute immunities for judges and
legislators did not apply “across the board” to officers of the Crown. As
Professor Jaffe pointed out many years ago, the claims of official immunity
exclude “the historic liability of sheriffs and peace officers.” Louis L. Jaffe,
Suits Against Governments and Officers: Damage Actions, 77 Harv. L. Rev.
209, 221–22 (1963); see also Max P. Rapacz, Protection of Officers Who Act
Under Unconstitutional Statutes, 11 Minn. L. Rev. 585, 585 (1927) (“Prior
to 1880 there seems to have been absolute uniformity in holding officers
liable for injuries resulting from the enforcement of unconstitutional
acts.”). The common law provenance of broad-brushed statutory qualified
immunity asserted by the United States Supreme Court in its statutory
qualified immunity cases is based on an incorrect view of common law
history.
John Wilkes was a folk hero in the American colonies. As noted by
a leading Wilkes biographer, his “every move was followed in the American
50
press, and his victories over government celebrated in the colonies.”
Arthur H. Cash, John Wilkes: The Scandalous Father of Civil Liberty 2
(2006) [hereinafter Cash]. Wilkes corresponded with Samuel Adams and
John Hancock, among others. Id. “The Commons House of South
Carolina sent him fifteen hundred pounds and closed down the provincial
government rather than obey the royal governor’s demand to rescind the
gift.” Id. According to historian Merrill Jensen, by the end of 1768,
“ ‘Wilkes and Liberty’ was a toast from one end of the colonies to the other.”
Id. at 232 (quoting Merrill Jensen, The Founding of a Nation: A History of
the American Revolution, 1763–1776, at 260 (1968)). Paul Revere made a
silver punch bowl with the engraving “No General Warrants” and “Wilkes
and Liberty.” See Ochoa, 792 N.W.2d at 270. “Wilkes received letters of
support from John Adams and Joseph Warren.” Id. And in a deeply tragic
example of irony, the parents of John Wilkes Booth named their son after
Wilkes as a tribute to freedom against tyranny. See Josh Chafetz,
Impeachment and Assassination, 95 Minn. L. Rev. 347, 389 (2010). While
Wilkes may not be a celebrity today, he and the Wilkes cases were well-
known by the founding and antebellum generations.
The interesting case of Little v. Barreme demonstrates recognition of
the general common law approach to liability for unlawful searches and
seizures. 6 U.S. (2 Cranch) 170 (1804). A Danish vessel, the Flying Fish,
was seized by Captain George Little. Id. at 176. The underlying law
authorized seizure only if the vessel was going to a French port. Id. at 177–
78. The Flying Fish was coming from a French port. Id. at 176. President
Adams, however, had issued instructions that vessels that were coming
from French ports could be seized. Id. at 170.
Chief Justice Marshall observed that “[t]he first bias of my mind was
very strong in favor of the opinion that though the instructions of the
51
executive could not give a right, they might yet excuse from damages.” Id.
at 179. He questioned whether a distinction could be drawn between
military officers and civil officers, and between proceedings “in the country
and those on the high seas.” Id. In the end, though, Chief Justice Marshall
recognized that civil officers generally are liable for their wrongs. See id.
He determined that while the ship was “seized with pure intention” as a
“consequence of orders from the legitimate authority,” nevertheless “the
[executive] instructions cannot change the nature of the transaction, or
legalize an act which without those instructions would have been a plain
trespass.” Id. As noted by Professor William Baude, the thrust of the case
is that “good-faith reliance did not create a defense to liability—what
mattered was legality.” William Baude, Is Qualified Immunity Unlawful?,
106 Calif. L. Rev. 45, 56 (2018) [hereinafter Baude].
Further, the Supreme Court has, in its constitutional immunity
cases, confused the role of good faith as an element of a specific offense
with the different and much broader notion of good-faith immunity. For
instance, in Pierson, the Supreme Court cited the elements of the tort of
false arrest at common law. 386 U.S. at 555, 87 S. Ct. at 1218. But the
fact that bad faith and flagrancy are elements of certain common law torts
is not a basis for a broadly framed, across-the-board constitutional
immunity doctrine. See Baude, 45 Cal. L. Rev. at 59. And in Harlow v.
Fitzgerald, the Court jettisoned subjective bad faith for objective bad faith,
a clear departure from any approach to the common law immunities. 457
U.S. 800, 818–19, 102 S. Ct. 2727, 2738–39 (1982). This innovation had
no basis at all in common law.
Even among members of the Supreme Court, the fiction that broad
statutory qualified immunity under 42 U.S.C. § 1983 is supported by the
common law is unraveling. At least three Justices have recognized that
52
the statutory qualified immunities caselaw, in fact, departs from common
law precedents. For example, in Wyatt v. Cole, Justice Kennedy noted that
the Court had “diverged to a substantial degree from the historical
standards” of the common law and observed that statutory immunity was
not supposed to be based upon “freewheeling policy choice[s].” 504 U.S.
158, 170, 112 S. Ct. 1827, 1835 (1992) (Kennedy, J., concurring)
(alteration in original) (quoting Malley v. Briggs, 475 U.S. 335, 342, 106
S. Ct. 1092, 1096 (1986)). In a dissenting opinion in Crawford-El v.
Britton, Justice Scalia noted that “our treatment of qualified immunity
under 42 U.S.C. § 1983 has not purported to be faithful to the common-
law immunities that existed when § 1983 was enacted.” 523 U.S. 574,
611, 118 S. Ct. 1584, 1603 (1998) (Scalia, J., dissenting). Most recently,
in Ziglar v. Abbasi, Justice Thomas observed that “we have diverged from
the historical inquiry mandated by the statute.” 582 U.S. ___, ___, 137
S. Ct. 1843, 1871 (2017) (Thomas, J., concurring in part and concurring
in the judgment). The sandy foundation of federal statutory qualified
immunity is not withstanding the test of time but rather is being washed
away.
5. Square pegs in round holes. Using federal statutory qualified
immunity doctrine to shape the immunity doctrine for state constitutional
torts is forcing a square peg into a round hole. The federal law on qualified
immunity has developed in the context of interpretation of 42 U.S.C.
§ 1983. There is no persuasive reason why federal statutory interpretation
should be hurriedly, or deliberately, ripped out of the federal caselaw and
frantically, or carefully, pasted into the North Western Reporter as Iowa
state constitutional law. There is simply no reason to believe that the
statutory interpretation provided by the United States Supreme Court is
constitutionally required on the federal level, let alone required in an
53
interpretation of state constitutional provisions. See Seth P. Waxman &
Trevor W. Morrison, What Kind of Immunity? Federal Officers, State
Criminal Law, and the Supremacy Clause, 112 Yale L.J. 2195, 2209 (2003)
(“It bears emphasizing that qualified immunity does not appear to be
constitutionally required.”).
6. Missing the point: incorrect statutory interpretation of the Ku Klux
Klan Act. In any event, there is reason to question the prevailing federal
statutory interpretation. Congress enacted 42 U.S.C. § 1983 in 1871 to
fight the Ku Klux Klan. See generally Michael H. LeRoy, Targeting White
Supremacy in the Workplace, 29 Stan. L. & Pol’y Rev. 107, 120–23 (2018)
[hereinafter LeRoy] (describing the history surrounding the enactment of
the Act). The statute, of course, says not one word about governmental
immunities. See 42 U.S.C. § 1983 (2012). In early American history, the
“strict rule of personal official liability” was well-established, “even though
its harshness to officials was quite clear.” David E. Engdahl, Immunity
and Accountability for Positive Governmental Wrongs, 44 U. Colo. L. Rev. 1,
19 (1972). To the extent the statute merely captured common law
precedent existing in the United States in 1871, it would not include broad
qualified immunity for officers engaging in unlawful searches and seizures.
Further, the Reconstruction Era Congress was determined, at least
in 1871, to address the horrific intimidation, terror, and violence visited
on African-Americans by white supremacists who gained control of state
and local governments in the states of the former confederacy. See LeRoy,
29 Stan. L. & Pol’y Rev. at 121–23. We should never forget that while the
Civil War ended in 1865 for most Iowans, a bitter and brutal battle
continued against African-Americans in the former slave states. See
Virginia v. Black, 538 U.S. 343, 353, 123 S. Ct. 1536, 1544 (2003) (“Soon
the Klan imposed ‘a veritable reign of terror” throughout the South.”
54
(quoting Stetson Kennedy, Southern Exposure 31 (1991))); Wadie E. Said,
Humanitarian Law Project and the Supreme Court’s Construction of
Terrorism, 2011 BYU L. Rev. 1455, 1471–72 (characterizing the brutal
tactics of the Klan to enforce white supremacy as organized terrorism).
The Civil Rights Act of 1866, which initiated the series of legislation
that eventually included 42 U.S.C. § 1983, declared that it was “An Act to
protect all Persons in the United States in their Civil Rights, and furnish
the Means of their Vindication.” Civil Rights Act of 1866, ch. 31, 14 Stat.
27, 27. As Professor Gary Gildin has stressed, § 1983 “provides that ‘every
person’ acting under color of state law who deprives an individual of federal
constitutional rights ‘shall be liable to the party injured.’ ” Gary S. Gildin,
Redressing Deprivations of Rights Secured by State Constitutions Outside
the Shadow of the Supreme Court’s Constitutional Remedies Jurisprudence,
115 Pa. St. L. Rev. 877, 888–89 (2011) (quoting 42 U.S.C. § 1983). The
legislative history includes a declaration from an opponent of the bill that
the legislation has “no limitation whatsoever upon the terms that are
employed.” Id. at 889 (quoting Monell, 436 U.S. at 685 n.45, 98 S. Ct. at
2033 n.45). Representative Bingham saw the bill as embracing Justice
Harlan’s one-to-one relationship between rights and remedies and
“declared the bill’s purpose to be ‘enforcement . . . of the Constitution on
behalf of every individual citizen of the Republic . . . to the extent of the
rights guaranteed to him by the Constitution.’ ” Id. at 888 n.39 (quoting
Monell, 436 U.S. at 685 n.45, 98 S. Ct. at 2033 n.45). A supporter in the
House of Representatives noted that the § 1983 is remedial and should be
“liberally and beneficently construed” to afford a remedy to the victim of
constitutional wrongs. Id. at 889 & n.41 (quoting Monell, 436 U.S. at 684,
98 S. Ct. at 2032). Robust qualified immunity for individuals committing
55
constitutional wrongs is completely inconsistent with the wording, the
legislative history, and the challenging historical purpose of the statute.
7. Unbalanced policy analysis. Aside from erroneous appeals to
common law and misconceptions about the contours of American history,
qualified immunity for individual government officials is defended on
policy grounds. It is suggested that without qualified immunity, the
officials will be frozen because of fear of potential liability. This claim is
unbalanced. If we are going to accept the premise that potential liability
affects behavior, as advocates of immunities so fervently do, we need to
look at the opposite side of the coin too, namely, if behavior is
fundamentally affected by the imposition of tort liability, the removal of tort
liability will also similarly impact behavior. If it is true that police conduct
will be chilled by tort rules, then the granting of immunity will lead police
to engage in more unconstitutional activities because they do not have to
worry about potential liabilities. We must consider both halves of the
deterrence walnut.
Indeed, at common law, an official’s exposure to “being mulcted in
damages was precisely the deterrent for errors of judgment.” Wurman, 37
Seattle U. L. Rev. at 965. More recently, the NAACP Legal Defense Fund
has explicitly called for a reexamination of the legal standards governing
qualified immunity in light of police violence involving African-Americans.
NAACP Legal Def. Fund, Statement on U.S. Supreme Court Decision
Expanding Qualified Immunity for Police (Apr. 2, 2018),
www.naacpldf.org/files/about-us/Kisela%20Hughes%20Decision%20Sta
tement.pdf [https://perma.cc/2ACT-QPP5]. According to the NAACP view,
more deterrence is needed. Id. Judge Jon Newman agrees, calling upon
Congress to abolish the defense of qualified immunity in order to better
control police misconduct. Jon O. Newman, Here’s a Better Way to Punish
56
the Police: Sue Them for Money, Wash. Post (June 23, 2016),
http://wapo.st/28R2Np4?tid=ss_mail&utm_term=.16d65eac7e49y
[https://perma.cc/2CSG-2ERG]. The libertarian Cato Institute has joined
the fray, noting “the deleterious effect [that qualified immunity] has on the
ability of citizens to vindicate their constitutional rights, and the
subsequent erosion of accountability among public officials that the
doctrine encourages.” Brief of the Cato Institute as Amicus Curiae
Supporting Plaintiffs-Appellees and Affirmance at 1, Williams v. Cline, ___
F.3d. ___ (7th Cir. 2018) (No. 17–2603), https://object.cato.org/
sites/cato.org/files/pubs/pdf/williams-v-cline-cato-amicus-brief-motion.pdf
[https://perma.cc/R6UU-E7AB]; see also Devon W. Carbado, Blue-on-
Black Violence: A Provisional Model of Some of the Causes, 104 Geo. L.J.
1479, 1519–24 (2016) (examining problems presented by qualified
immunity and indemnification).
8. Stay in your own lane: judicial legislation. Further, the jeremiads
about chilling official conduct ring hollow. Advocates of sharp restrictions
on judicial protection of individual rights generally are also advocates of
legislative supremacy. Well, then let’s give the legislature the power to
enact policy. To the extent that the legislature wishes to prevent lack of
constitutional immunity from chilling police conduct, it may enact an
indemnity statute. See Wurman, 37 Seattle U. L. Rev. at 965–66, 987.
Indeed, in the antebellum years, the question of whether to indemnify
public officers for their illegal conduct was assigned to the legislative
branch. See James E. Pfander & Jonathan L. Hunt, Public Wrongs and
Private Bills: Indemnification and Government Accountability in the Early
Republic, 85 N.Y.U. L. Rev. 1862, 1925 (2010) [hereinafter Pfander &
Hunt]. The nineteenth century approach “was to hold the officer
57
accountable in court for violations of the victim’s legal rights but then to
indemnify the officer . . . through the legislative process.” Id.
The federal courts have deprived the legislature of this policy choice
by an aggressive imposition of judicially created immunity. The
handwringing of the United States Supreme Court in its qualified
immunity cases shows a dissatisfaction with the common law and with the
failure of the legislative branch to enact policy preferences that the
majority of the Court seems to prefer. Qualified immunity is thus simply
judicial legislation—it reflects dissatisfaction with the failure of the
legislative process to relieve individual officers of liability through
indemnification and the achievement of the desired policy result through
judicially legislating a policy of qualified immunity.
9. The chewing and choking of constitutional rights. The federal
approach to statutory qualified immunity embraces a dynamic that has
progressively chewed and choked potential remedies for constitutional
violations. The federal approach requires a plaintiff to overcome qualified
immunity by demonstrating that the officials involved engaged in
violations of “clearly established rights.” Harlow, 457 U.S. at 819, 102
S. Ct. at 2739. A key question, of course, is at what level of generality is
this test imposed? The federal caselaw suggests that the level of generality
has become increasingly specific—namely, that unless there is an
authoritative, reported case that is nearly factually identical to the case in
question, the constitutional right is not clearly established. See Kerns v.
Bader, 663 F.3d 1173, 1191, 1198–99 (10th Cir. 2011) (Holloway, J.,
dissenting) (observing plaintiff would need to find a case nearly identical
on the facts, a virtually impossible task); Belzer, 90 Denv. U. L. Rev. at 650
(arguing that the caselaw creates “an insurmountable hurdle” for
58
plaintiffs); Wurman, 37 Seattle U. L. Rev. at 944 (noting level of generality
is crucial in qualified immunity context).
Further, in determining whether there has been a violation of
constitutional rights, the federal courts jettisoned any subjective test in
favor of a “reasonableness” test in determining whether the actions of the
officers qualify for immunity. See Harlow, 457 U.S. at 819, 102 S. Ct. at
2739. The objective reasonableness test is, of course, so amorphous that
some liability might have emerged for officials, so the federal caselaw has
now tightened the screw another turn by replacing or supplementing the
objectively reasonable standard with the new formulation of “entirely
unreasonable.” Messerschmidt v. Millender, 565 U.S. 535, 547, 132 S. Ct.
1235, 1245 (2012).
And, there is more. By now allowing, if not encouraging, courts not
to reach the question of whether a constitutional violation actually
occurred, but only whether the right involved was “clearly established,”
the constitutional immunity doctrine has prevented the development of
substantive constitutional law by reducing the number of cases that
address claims on the constitutional merits. See Camreta v. Greene, 563
U.S. 692, 705–06, 131 S. Ct. 2020, 2031 (2011) (“[O]ur usual adjudicatory
rules suggest that a court should forbear resolving the [constitutional]
issue. . . . Small wonder then, that a court might leave that issue for
another day. But we have long recognized that this day may never come—
that our regular policy of avoidance sometimes does not fit the qualified
immunity situation because it threatens to leave standards of official
conduct permanently in limbo.” (Citations omitted.)). The federal
constitutional immunity doctrine thus serves to limit the development of
constitutional law by eliminating consideration of constitutional
uncertainties in filed cases. Belzer, 90 Denv. U. L. Rev. at 685. Further,
59
the presence of difficult-to-meet constitutional immunity standards has
dramatic impact in law offices where lawyers and putative clients weight
the practicalities of bringing constitutionally based legal actions in the face
of strong immunity headwinds. See Alexander A. Reinert, Does Qualified
Immunity Matter?, 8 U. St. Thomas L.J. 477, 494–95 (2011) (noting
“qualified immunity plays a large role in case selection” and “limit[s] the
extent to which civil rights litigation tests the boundaries of the law”). The
creation of artificial immunities for constitutional violations is bad news
for the development of state constitutional law.
C. Iowa Code Chapters 669 and 670. Iowa Code chapters 669
and 670 are the Iowa Tort Claims Act and the Municipal Tort Claims Act.
The Acts begin with the premise that state and local governments are
generally liable for tortious acts as are ordinary citizens. The Acts,
however, have sweeping exceptions.
The Iowa Tort Claims Act broadly exempts the state from liability for
claims “arising out of assault, battery, false imprisonment, false arrest,
malicious prosecution, abuse of process, libel, slander, misrepresentation,
deceit, or interference with contract rights.” Iowa Code § 669.14(4) (2017).
Further, the state is exempt from liability for any claims brought by an
inmate. Id. § 669.14(6). These provisions, if enforced with respect to
constitutional claims, would dramatically undermine the scope of
available remedies in a wide variety of actions.
The Municipal Tort Claims Act also provides for liability of local
government, subject to enumerated exceptions. Id. § 670.2(1). The
exceptions are different than under the Iowa Tort Claims Act. Compare id.
§ 669.14, with id. § 670.4. The Municipal Tort Claims Act excludes from
liability any claim arising out of an act or omission of an officer “exercising
due care, in the execution of a statute, ordinance, or regulation . . . or
60
based upon the exercise or performance or the failure to exercise or
perform a discretionary function or duty.” Id. § 670.4(1)(c). Further,
claims for punitive damages are not allowed. Id. § 670.4(1)(e). Depending
on interpretation, application of these Code provisions to situations where
government officials cause grievous harm could dramatically reduce any
possible recovery.
These statutory provisions are not of much value in determining
whether there is qualified immunity for officers who commit constitutional
torts. The very purpose of the Bill of Rights is to restrain the majoritarian
branches of government. These provisions are distinctly antimajoritarian.
It would be a fox-in-the-henhouse problem to permit the legislature to
define the scope of protection available to citizens for violation of
constitutional rights. As noted by Professor Amar, “When governments act
ultra vires and transgress the boundaries of their charter, . . . their
sovereign power to immunize themselves is strictly limited by the remedial
imperative.” Amar, 96 Yale L.J. at 1490.
III. No Immunity Under Iowa Constitutional Law for Search and
Seizure Claims.
A. Introduction. Having rejected the federal model, I now turn to
consider whether there is a basis for some kind of constitutionally based
immunity for officers who violate state constitutional rights. In doing so,
it is important to emphasize that we are not engaging in an act of statutory
interpretation but instead an act of constitutional interpretation.
B. First and Foremost: Emphasis in the Iowa Constitution on
Bill of Rights. As noted in Godfrey, the Iowa constitutional founders
placed strong emphasis on the Bill of Rights provisions of the Iowa
Constitution. 898 N.W.2d at 864. The Bill of Rights of the Iowa
Constitution was deliberately designed “to put upon record every
61
guarantee that could be legitimately placed [in the constitution].” Id.
(quoting 1 The Debates at 100 (alteration in original)). The placement of
the Bill of Rights in the very first article in the Iowa Constitution, ahead of
articles describing legislative and executive power, was not a result of
happenstance. According to George Ells, Chair of the Committee on the
Preamble and Bill of Rights, “the Bill of Rights is of more importance than
all the other clauses in the Constitution put together, because it is the
foundation and written security upon which the people rest their rights.”
Id. (quoting The Debates at 103). Given the obvious importance of the Iowa
Bill of Rights in the state constitutional scheme, it must be effectively
enforced. See id. at 865.
C. “Thoroughly Well-Settled”: Iowa Caselaw Imposing Damages
on Officials for Unconstitutional Searches and Seizures. As we noted
in Godfrey, the Iowa founding generation was well aware of the English
cases where officers of the Crown were liable for substantial damages for
unlawful searches and seizures. Id. at 866–67. In Sanders v. State, the
Iowa Supreme Court cited Entick, using as its source Howell’s State Trials,
a popular compendium of English law cases. 2 Iowa 230, 239 (1855); see
Godfrey, 898 N.W.2d at 867. In McClurg v. Brenton, we reversed a trial
court dismissal of a damages action against a mayor, a chief of police, and
a captain of police where a search was conducted without a warrant. 123
Iowa 368, 369, 371–72, 98 N.W. 881, 881–83 (1904). A few years later, we
reaffirmed the notion that the right of citizens to be secure in person and
property against wrongful searches and seizures is “zealously safeguarded
and has express recognition in our state Constitution.” Krehbiel v. Henkle
(Krehbiel I), 142 Iowa 677, 679–80, 121 N.W. 378, 379–80 (1909). We
further stated that it was “thoroughly well settled” that “a violation of this
right without reasonable ground therefor gives the injured party a right of
62
action.” Id. at 680, 121 N.W. at 380. We later affirmed an award of
punitive damages in the case based upon the defendant’s “wanton and
reckless” disregard of the plaintiff’s rights. Krehbiel v. Henkle (Krehbiel II),
152 Iowa 604, 606, 129 N.W. 945, 945, modified on other grounds, 152
Iowa 604, 607, 133 N.W. 115, 115 (1911) (per curiam).
The majority cites Krehbiel I in support of its view that in Iowa,
malice or want of probable cause must be shown to support a damage
action for unconstitutional search and seizure. 142 Iowa at 680, 121 N.W.
at 380. But the tort involved in Krehbiel was malicious prosecution. Id.
Because the issue was framed as malicious prosecution, malice was an
element of the offense. Id. The reference in the case to whether there was
a reasonable ground for the search does not appear to be an assertion of
immunity but is consistent with the notion that a search is reasonable if
it is undertaken pursuant to a valid warrant or undertaken pursuant to a
valid exception to the warrant requirement. See Thomas Y. Davies,
Recovering the Original Fourth Amendment, 98 Mich. L. Rev. 547, 576–90
(1999).
The majority also cites the cases of Hetfield v. Towsley, 3 Greene
584 (Iowa 1852), and Howe v. Mason, 12 Iowa 202 (1861). These cases
involve judicial immunity, Howe, 12 Iowa at 203–04; Hetfield, 3 Greene at
585, a concept well-recognized at common law and distinct from a claim
against officers engaged in search-and-seizure-type activities, see, e.g.,
Pierson, 386 U.S. at 553–54, 87 S. Ct. at 1217–18. The majority opinion
thus conflates apples and oranges. Judges historically have been
absolutely immune because of the peculiar characteristics of and the
safeguards built into the judicial process, including rights of appeal. See
Butz v. Economou, 438 U.S. 478, 512, 98 S. Ct. 2894, 2913 (1978). Such
absolute immunity has not historically been extended to other government
63
officials exercising different governmental functions. It is wrong to suggest
that Hetfield and Howe stand for the proposition that immunity should be
extended to executive branch officials charged with violating article I,
section 1 and article I, section 8 of the Iowa Constitution when the official
functions involved are materially different. See Butz, 438 U.S. at 511, 98
S. Ct. at 2913 (“Judges have absolute immunity not because of their
particular location within the Government but because of the special
nature of their responsibilities.”).
The majority also miscites Plummer v. Harbut, 5 Iowa 308 (1857). In
this unlawful search and seizure case, the plaintiff was deprived of
compensatory damages not because of the good faith of the officers, as
claimed by the majority, but because a party seeking to recover damages,
for the seizure and destruction of intoxicating liquors, must show that he
possessed them with a lawful intent. Id. at 312–13. Because possession
of the intoxicating liquor was unlawful, compensatory damages were not
available. Id. at 313. The good-faith discussion in the case was not
directed to the issue of compensatory damages, as the majority suggests,
but to the issue of punitive damages. Id. at 314. As the Plummer court
stated, “Where a ministerial officer acts in good faith, he is not liable to
exemplary damages for an injury done.” Id. In the Plummer case, the
proposition that “good faith” in the search and seizure context was not
relevant to the issue of compensatory damages but only to the issue of
punitive damages.
Finally, the majority dismisses language in Girard v. Anderson that
directly and plainly states, “A violation of the state and federal
constitutional provisions against the unreasonable invasion of a person’s
home gives the injured party a right of action for damages for unlawful
breaking and entering.” 219 Iowa 142, 148, 257 N.W. 400, 403 (1934).
64
The majority rejects the relevance of Girard by stating that the case
involved an intrusion by a private party. That is true enough, but among
the cases cited by the Girard court in support of the statement that an
injured party has a cause of action was McClurg, a case involving
misconduct of officials. See id. at 148, 257 N.W. at 403 (citing McClurg,
123 Iowa 368, 98 N.W. 881). By citing McClurg, it is hard to believe the
Girard court subscribed to the narrow interpretation embraced by the
majority.
Recently in Godfrey, we stressed the need for effective enforcement
of constitutional norms through private causes of action to recover for
harms caused by unconstitutional conduct. 898 N.W.2d at 865. We
quoted Justice Harlan’s concurrence in Bivens for the proposition that “the
judiciary has a particular responsibility to assure the vindication of
constitutional interests.” Id. (quoting Bivens, 403 U.S. at 407, 91 S. Ct. at
2010 (Harlan, J., concurring in the judgment)).
D. Constitutional Caselaw from Other Jurisdictions on the
Question of Qualified Immunity Under State Constitutional
Provisions. The state courts are divided on the question of whether there
should be some kind of immunity doctrine that relieves individual officers
of potential liability for constitutional wrongs.
Some cases follow the United States Supreme Court approach to
statutory qualified immunity in the interpretation of their state
constitutions. A good example of an unreflective “me too” case is Moresi v.
Department of Wildlife & Fisheries, 567 So. 2d 1081 (La. 1990). There, the
Louisiana court wrote,
The same factors that compelled the United States Supreme
Court to recognize a qualified good faith immunity for state
officers under § 1983 require us to recognize a similar
65
immunity for them under any action arising from the state
constitution.
Id. at 1093. Needless to say, this uncritical analysis, for all the reasons
expressed above, is unpersuasive.
On the other hand, the Maryland Court of Appeals, in Clea v. Mayor
of Baltimore, held that city officials were not entitled to immunity for
violations of individuals’ rights under the Maryland Declaration of Rights.
541 A.2d 1303, 1314 (Md. 1988), superseded by statute on other grounds,
Md. Code Ann., State Gov’t § 12-101(a), as recognized in D’Aoust v.
Diamond, 36 A.3d 941, 962 (Md. 2012). In Clea, the plaintiffs brought
both an ordinary tort suit and a constitutional claim against several
officials including a police officer, for an allegedly unlawful search of the
plaintiffs’ home. Id. at 1304. The defendant police officer asserted he was
entitled to qualified immunity. Id.
The Clea court held that while the police officer was immune from
the ordinary tort claims because he did not act with malice, the immunity
statute could not be lawful as applied against claims under the Maryland
Declaration of Rights. Id. at 1311, 1312. The court stated that “there are
sound reasons to distinguish actions to remedy constitutional violations
from ordinary tort suits.” Id. at 1314. The court emphasized “[t]he
purpose of a negligence or other ordinary tort action is not specifically to
protect individuals against government officials or to restrain government
officials,” but only “to protect one individual against another individual.”
Id.
On the other hand, the Clea court noted that the constitutional
provisions in the Declaration of Rights of the Maryland Constitution were
“specifically designed to protect citizens against certain types of unlawful
acts by government officials.” Id. According to the Clea court,
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To accord immunity to the responsible government officials,
and leave an individual remediless when his constitutional
rights are violated, would be inconsistent with the purpose of
the constitutional provisions. It would also . . . largely render
nugatory the cause of action for violation of constitutional
rights recognized [in Maryland’s Godfrey-type cases].
Id.
The Montana Supreme Court has adopted an approach similar to
that in Clea. In Dorwart v. Caraway, the Montana Supreme Court rejected
qualified immunity for state constitutional torts. 58 P.3d 128, 140 (Mont.
2002). The Dorwart court agreed with the analysis presented in Clea. Id.
at 139. It also emphasized, however, unique aspects of the state
constitution, including provisions prohibiting local governments from
immunity from suit except as provided by a two-thirds vote of each house
of the legislature. Id. at 139–40.
Also instructive is Corum v. University of North Carolina ex rel. Board
of Governors, 413 S.E.2d 276 (N.C. 1992). In Corum, the North Carolina
Supreme Court considered an action brought by a discharged faculty
member alleging his termination violated his right to free speech. Id. at
280. The defendants included the university and various university
officials. Id. at 282. The North Carolina Supreme Court held that a direct
action to enforce free speech under the North Carolina Constitution was
essential to preserve the rights guaranteed by that provision. Id. at 289.
The Corum court also considered the question of whether the
doctrine of sovereign immunity had any application in the case. Id. at 291.
The court held that it did not. Id. According to the court, “the doctrine of
sovereign immunity cannot stand as a barrier to North Carolina citizens
who seek to remedy violations of their rights guaranteed by the Declaration
of Rights [in the state constitution].” Id. The court noted that the
Declaration of Rights is the first article in the state constitution and
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emphasized its primacy in the minds of the North Carolina framers. Id. at
289–90. The court stated,
It would indeed be a fanciful gesture to say on the one hand
that citizens have constitutional individual civil rights that are
protected from encroachment actions by the State, while on
the other hand saying that individuals whose constitutional
rights have been violated by the State cannot sue because of
the doctrine of sovereign immunity.
Id. at 291. While the Corum court spoke in terms of sovereign immunity
and not qualified immunity, it appeared to be considering an immunity
claim made by an individual defendant, i.e., the plaintiff’s immediate
supervisor and an official at the university involved in the case, and not a
claim made by the university. See id. at 281, 292.
E. Impact of Godfrey on the Enforcement of Constitutional
Provisions. In Godfrey, we held that the due process and equal protection
provisions of the Iowa Constitution are self-executing and that citizens
have a direct action for damages caused by unconstitutional conduct
under the Iowa Constitution. 898 N.W.2d at 846–47, 871–72. However,
we specifically left open the question of whether government officials were
entitled to qualified immunity with respect to direct claims brought under
the Iowa Constitution. Id. at 879 (plurality opinion). While we reserved
the question of qualified immunity, it is important that the general
principles of Godfrey, which held citizens have the right to bring direct
claims under the Constitution, be consistently applied in this case,
addressing the scope of the direct remedies recognized in Godfrey.
In Godfrey, we emphasized that “[i]f the[] individual rights in the very
first article of the Iowa Constitution are to be meaningful, they must be
effectively enforced.” Id. at 865 (majority opinion). We quoted Justice
Harlan for the proposition that “the judiciary has a particular
responsibility to assure the vindication of constitutional interests.” Id.
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(quoting Bivens, 403 U.S. at 407, 91 S. Ct. at 2010). We noted, “It would
be ironic indeed if the enforcement of individual rights and liberties in the
Iowa Constitution, designed to ensure that basic rights and liberties were
immune from majoritarian impulses, were dependent on legislative action
for enforcement.” Id. We explained that the Iowa Constitution put its Bill
of Rights in article I, indicating the Bill of Rights’ primacy, and that the
Iowa Constitution generally tends to limit the scope of legislative powers.
Id. at 864–65. We stated, “We cannot imagine the founders intended to
allow government wrongdoers to set their own terms of accountability
through legislative action or inaction.” Id. at 866. It is plain from Godfrey
that constitutional rights must be effectively enforced, the court is the
principle institution of government to ensure that such effective
enforcement occurs, and action or inaction of the legislature cannot be an
effective barrier to wholesome judicial enforcement of the Iowa Bill of
Rights. See id. at 865–66. We must not abandon these Godfrey principles
today in this companion case.
In Godfrey, we also discussed the availability of punitive damages
for constitutional wrongs. Id. at 875–79 (plurality opinion). Three
members of the court concluded that because the Iowa Civil Rights Act
(ICRA) did not include punitive damages, it did not preempt a direct
constitution claim alleging that the defendants acted unconstitutionally in
violation of the equal protection clause of the Iowa Constitution. Id. at
879. In a separate opinion, Chief Justice Cady came to the conclusion
that while lack of punitive damages could lead to a finding that a statutory
remedy is inadequate, it was not under the specific facts of Godfrey’s case.
Id. at 880–81 (Cady, C.J., concurring in part and dissenting in part).
There is substantial authority to support the position that, in a
search and seizure case, punitive damages should be allowed. The
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damages awarded in the Wilkes cases exceeded the injury. See Godfrey,
898 N.W.2d at 866 (majority opinion) (explaining that Wilkes was awarded
£1000 and Huckle £300); see also 1763 Pounds in 2017, UK Inflation
Calculator, https://www.officialdata.org/1763-GBP-in-2017?amount=1300
[https://perma.cc/CG72-D7HL] (last visited June 26, 2018) (calculating
that £1300 in 1763 is about £245,000 in 2017). In Huckle, the amount of
awarded damages was fifteen times the actual damages, with the court
observing,
I think they have done right in giving exemplary damages. To
enter a man’s house by virtue of a nameless warrant, in order
to procure evidence, is worse than the Spanish Inquisition; a
law under which no Englishman would wish to live an hour;
it was a most daring public attack made upon the liberty of
the subject.
Godfrey, 898 N.W.2d at 866 (quoting Huckle, 95 Eng. Rep. at 769); see
also Simpson v. McCaffrey, 13 Ohio 508, 522–23 (1844) (en banc) (allowing
“damages beyond compensation” for search and seizure violations). Iowa
followed the common law approach to punitive damages in Krehbiel II, 152
Iowa at 606, 129 N.W. at 945. In Krehbiel II, the court affirmed an award
of punitive damages on the ground that such damages were available for
conduct that “was wanton and reckless and in disregard of the plaintiff’s
rights.” Id.
Chief Justice Cady’s concurring opinion in Godfrey provided the
deciding vote on the question of whether the lack of a punitive damages
remedy in the ICRA prevented the Act from preempting a direct
constitutional claim. 898 N.W.2d at 880–81 (Cady, C.J., concurring in
part and dissenting in part). Chief Justice Cady concluded that on the
facts of the Godfrey case, the lack of a punitive damages remedy did not
cause the remedies in the ICRA to be inadequate. Id. Chief Justice Cady
noted that the ICRA provides attorney’s fees, a remedy that might
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compensate for a lack of availability of punitive damages. Id. at 881. He
acknowledged, however, that “[i]n the appropriate case, a remedy of
punitive damages may be necessary to vindicate a plaintiff’s constitutional
rights.” Id. But, according to Chief Justice Cady,
when the claimed harm is largely monetary in nature and does
not involve any infringement of physical security, privacy,
bodily integrity, or the right to participate in government, and
instead is against the State in its capacity as an employer,
punitive damages are not a necessary remedy. Id. This search and seizure
case, of course, does involve infringement of physical security and bodily
integrity. Under Chief Justice Cady’s concurring opinion, punitive
damages may well be necessary to vindicate the plaintiff’s constitutional
rights, just as it was in Krehbiel. See id.; Krehbiel II, 152 Iowa at 606, 129
N.W. at 945.
F. Discussion. The mere lifting of federal statutory qualified
immunity doctrine and supplanting it into analysis of constitutional
claims under the Iowa Constitution is a nonstarter. The question is
whether we should independently develop a judge-made doctrine of
qualified immunity to relieve public officials from liability for damages
arising from their unlawful conduct as a supplement to the constitutional
text contained in article I of the Iowa Constitution.
I conclude that we should not manufacture a qualified immunity
doctrine for constitutional wrongs of public officials. Our state
constitutional tradition places strong emphasis on the Bill of Rights. See
Godfrey, 898 N.W.2d at 864 (majority opinion). There can simply be no
doubt that limiting the remedies available for violations of constitutional
provisions limits the substantive protections of those constitutional
provisions for all practical purposes. Justice Harlan was spot-on when he
observed that the relationship between substance and remedy is one-on-
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one. See Bivens, 403 U.S. at 400 n.3, 91 S. Ct. at 2007 n.3. No one can
plausibly argue otherwise.
There can be little doubt that the Bill of Rights in the Iowa
Constitution was intentionally placed in article I to emphasize its primacy
in the constitutional scheme. It precedes articles establishing executive
and legislative powers. The notion that legislative powers in article III of
the Iowa Constitution could eviscerate the Bill of Rights in article I is a
topsy-turvy approach to our state constitutional structure. Further, the
prominent English common law cases where government officials were
found liable for search and seizure violations were well known in the
colonies and to lawyers and judges at the time of the Iowa constitutional
convention, as demonstrated by a citation to Entick by the Iowa Supreme
Court in 1855. See, e.g., Godfrey, 898 N.W.2d at 866–67; Sanders, 2 Iowa
at 239. Our early search and seizure cases tend to reinforce the notion
that money judgments against officials were an appropriate way to
compensate plaintiffs and deter future misconduct. See, e.g., Krehbiel II,
152 Iowa at 606, 129 N.W. at 945; McClurg, 123 Iowa at 369–70, 98 N.W.
at 881–82. We should not dilute the remedy with a qualified immunity
doctrine.
This is especially true when it comes to search and seizure issues.
In State v. Tonn, we noted that “[a] trespassing officer is liable for all wrong
done in an illegal search or seizure.” 195 Iowa 94, 106, 191 N.W. 530, 535
(1923), overruled on other grounds by State v. Cline, 617 N.W.2d 277, 291
(Iowa 2000) (en banc), overruled on other grounds by State v. Turner, 630
N.W.2d 601, 606 n.2 (2001). Echoing the sentiments of judges in the
Wilkes cases and anticipating the later views of Justice Jackson in
Brinegar, we emphasized that the right against unreasonable searches and
seizures was “a sacred right, and one which the courts will rigidly enforce.”
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Id. To embrace qualified immunity diluting the ability to enforce search
and seizure law hardly elevates the right to “sacred status” or provides
“rigid enforcement.”
The “rigid enforcement” of search and seizure law was reflected in
Cline. In Cline, we considered whether we should adopt a good-faith
exception to the exclusionary rule for search and seizure violations under
article I, section 8 of the Iowa Constitution. Id. at 288. We refused to do
so. Id. at 292–93. If we adopted such a rule, we pointed out, the standard
would be “close enough is good enough.” Id. at 290 (quoting State v.
Marsala, 579 A.2d 58, 68 (Conn. 1990)). It would, “in effect, remove the
probable cause requirement from [article I, section 8].” Id. (quoting People
v. Sundling, 395 N.W.2d 308, 314 (Mich. Ct. App. 1986), abrogated on other
grounds by People v. Russo, 487 N.W.2d 698, 706 & n.31 (Mich. 1992)).
Quoting a New Mexico court, we emphasized that the constitution was
designed “to create more than ‘a code of ethics under an honor system.’ ”
Id. at 291 (quoting State v. Gutierrez, 863 P.2d 1052, 1067 (N.M. 1993)).
Further, we noted that “[t]he reasonableness of a police officer’s belief” in
the lawfulness of his or her conduct “does not lessen the constitutional
violation.” Id. at 292.
This case is the civil counterpart of Cline. If we disallowed a good-
faith defense in a criminal case on the question of admission of evidence,
we certainly ought to allow a wronged citizen to seek damages for harm
caused by the unconstitutional conduct of state or local government
officials. And we should not lightly glide over the cautions of Justice
Jackson that “[u]ncontrolled search and seizure is one of the first and most
effective weapons in the arsenal of every arbitrary government.” Brinegar,
338 U.S. at 180, 69 S. Ct. at 1313.
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Further, it is critically important that state officials are not above
the law or even perceived to be above the law when it comes to enforcement
of provisions of article I against state and local governments. As noted by
the New York Court of Appeals in Brown v. State,
no government can sustain itself, much less flourish, unless
it affirms and reinforces the fundamental values that define it
by placing the moral and coercive powers of the State behind
those values. When the law immunizes official violations of
substantive rules because the cost or bother of doing
otherwise is too great, thereby leaving victims without any
realistic remedy, the integrity of the rules and their underlying
public values are called into serious question.
674 N.E.2d 1129, 1144 (N.Y. 1996).
As noted above, the claim that local officials will be deterred by the
possibility of tort liability, is unbalanced. The opposite view—that without
tort liability there will be less incentive to follow constitutional dictates—
must be considered as well.
In any event, the basic premise that qualified immunity is needed to
prevent overdeterrence of official conduct has little support. A recent
study by Professor Joanna Schwartz confirms what one might suspect,
namely, that at least with respect to police officers, local governments
almost always indemnify for settlements and judgments arising out of
misconduct lawsuits. See Joanna C. Schwartz, Police Indemnification, 89
N.Y.U. L. Rev. 885, 912 (2014). Specifically, the Schwartz study found
that in the forty-four largest jurisdictions studied, police officers paid .02%
of the over $730 million paid for misconduct suits between 2006 and 2011.
Id. at 960. In the thirty-seven smaller police departments included in the
study, Schwartz found there were no officer contributions towards
settlements and judgments during that time. Id. In short, according to
Schwartz, in many jurisdictions “officers are more likely to be struck by
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lightning than they are to contribute to a settlement or judgment in a
police misconduct suit.” Id. at 914. The fact that officers are almost
always indemnified undercuts one of the primary arguments in favor of
the immunity doctrine—that without it, officers will be deterred from
engaging in appropriate activities for fear of the financial consequences of
a wrong decision.
Whether or not to indemnify local officials for their unconstitutional
conduct is a policy matter that the Iowa legislature has already decided.
Iowa Code section 669.21 indemnifies state officials against claims,
including constitutional claims, subject to a few exceptions. Iowa Code
§ 669.21. Likewise, section 670.8 indemnifies municipal officials “against
any tort claim or demand,” subject to a few exceptions. Id. § 670.8. We
have no occasion to develop a doctrine to relieve individual municipal
officers from potential liability for constitutional wrongs—that has been
done by other branches of government, just as it was in the antebellum
period before the modern United States Supreme Court developed its
innovative approach to qualified immunity. See Pfander & Hunt, 85 N.Y.U.
L. Rev. at 1925–26.
The majority has created a “negligence” immunity to violations of
search and seizure prohibitions under article I, section 8 of the Iowa
Constitution, largely based on the work of Professor John Jeffries. As
Professor Jeffries himself has noted, his approach “is opposed by the
weight of academic opinion, which favors strict liability for all
constitutional violations.” See John C. Jeffries Jr., Disaggregating
Constitutional Torts, 110 Yale L.J. 259, 262 n.16 (2000); see also Amar, 96
Yale L.J. at 1490–91; Mark R. Brown, The Demise of Constitutional
Prospectivity: New Life for Owen?, 79 Iowa L. Rev. 273, 311–12 (1994);
Harold S. Lewis Jr. & Theodore Y. Blumoff, Reshaping Section 1983’s
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Asymmetry, 140 U. Pa. L. Rev. 755, 756 (1992); Sheldon Nahmod,
Constitutional Damages and Corrective Justice: A Different View, 76 Va. L.
Rev. 997, 1019 (1990); Christina B. Whitman, Government Responsibility
for Constitutional Torts, 85 Mich. L. Rev. 225, 229–30 (1987) (endorsing
strict governmental liability for constitutional violations). There is nothing
wrong with following the minority view in academia or, for that matter, the
minority view in the courts. But the reasoning of the majority view, which
is largely expressed in the body of this opinion, is worth considering. The
majority in this case pretty much ignores it.
Rather than follow the state’s motto, “Our Liberties We Prize and
Our Rights We Will Maintain,” the majority follows an approach that
suggests “Our Liberties Are Transient and Our Rights Are Expendable.”
There is no sound policy basis to adopt such a negligence exception under
article I, section 8 of the Iowa Constitution, particularly when individual
municipal officers are indemnified for most claims that arise out of their
official acts. See Iowa Code § 670.8. The majority has no response to this
point. And how interesting it is that while the majority is concerned that
government conduct will be chilled, it is not at all concerned that by
granting immunity, unconstitutional conduct may be encouraged. And
wholly absent from the majority opinion is any concern at all for a citizen
who may suffer grievous harm as a result of the unconstitutional conduct
of a government official. In effect, the majority has moved article I of the
Iowa Constitution from its place of primacy and made it article V, behind
the provisions establishing executive and legislative power. According to
the majority, the emphasis in the Iowa Constitution is not on rights but
government power.
In addition, the negligence standard could be applied in an unsound
fashion to chew and choke potential liability. The search and seizure
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provision of article I, section 8 uses the term “unreasonable.” We have
observed that the term cannot be regarded as an open-ended, stand-alone
“reasonableness” test shorn from its linguistic and historical context. See
Ochoa, 792 N.W.2d at 289. I fear, however, that some members of the
court will take the ahistorical approach and see reasonableness as the
touchstone of search and seizure law and then will, in light of this opinion,
frame the immunity question in the search and seizure context as, “Was
it reasonable for the officer to believe his or her conduct was reasonable?”
See Anderson v. Creighton, 483 U.S. 635, 664 & n.20, 107 S. Ct. 3034,
3052 & n.20 (1987) (Stevens, J., dissenting). Such double counting of
“reasonableness,” if it occurs, would eviscerate enforcement of article I,
section 8. Double counting reasonableness seems to be a fantastic result,
but the lack of sensitive in the majority opinion to the enforcement of
search and seizure rights does not give me high confidence that a highly
distorted approach to immunity will not be applied in future search and
seizure cases under article I, section 8. If a reasonableness-on-
reasonableness approach does apply, the enforceability of the search and
seizure provisions of the Iowa Constitution will be geometrically
undermined.
Further, although the majority eschews Harlow, it will be interesting
to see whether the concept of “clearly established rights” creeps back in
under the banner of negligence on an as-needed basis to defeat claims of
compensation. See 457 U.S. at 818, 102 S. Ct. at 2738. If it does, of
course, the claim in the majority rejecting Harlow as having no place in
Iowa law will be overstated.
In any event, for search and seizure cases in Iowa individual officers
will now have a judge-created immunity based upon a due-care or
negligence standard. The judge-created negligence standard is an
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amorphous one but presumably follows the law of torts. If so, whether
immunity is available will, in many cases, depend upon the fact finder’s
evaluation of the reasonableness of police compliance with constitutional
requirements under all the facts and circumstances.
In the future, it will be interesting to see if the majority fashions
additional judge-made rules in the application of its negligence standard
to further prevent persons from obtaining remedies for constitutional
harms inflicted by government officials. Specifically, we must wait and see
if under the rubric of negligence, the court allows the return of either
“clearly established rights” approach of Harlow, or applies the
reasonableness-on-reasonableness approach to undercut constitutional
claims, as I have described above. If so, the substantial harm caused by
this majority opinion will be worse than advertised and liability for serious
article I, section 1 and article I, section 8 violations may be more fictitious
than real.
There is also some ominous language in the majority opinion
suggesting that various provisions of Iowa Code chapters 669 and 670
might be used to ensure that Iowa citizens cannot recover for the
constitutional harms caused by government officials. As indicated above,
application of legislative restrictions on the ability of private citizens to
recover for constitutional harms imposed on them by the government has
a fox-in-the-henhouse quality. The very suggestion, for instance, that Iowa
Code section 669.14(4), which prohibits “[a]ny claim [for damages] arising
out of assault, battery, false imprisonment, false arrest, malicious
prosecution, abuse of process, libel, slander, misrepresentation, deceit, or
interference with contract rights,” is a legislatively created vehicle to
prevent citizens from recovering from grievous constitutional harm is
astounding. The idea that the government might be immune from liability
78
for an unconstitutional beating using excessive force, for example, is what
one might expect in an authoritarian state, not a democracy. Further, the
suggestion that punitive damages may not be awarded for constitutional
torts, as suggested in Iowa Code section 670.4(1)(e), would be absolutely
astounding to the founding and antebellum generations so familiar with
the Wilkes cases. If there are to be any cases where private citizens who
are harmed by unconstitutional conduct are to be prevented from being
compensated by the officers who caused the harm, that decision should
be determined by the court and not the legislature.
IV. Conclusion.
The majority opinion is misguided. It does not mention the role of
the historic Wilkes cases and the dramatic impact these cases had on
American law—a part of history, apparently, that is best forgotten. It
embraces a constitutional “gap” theory and fails to recognize that rights
and remedies, as Justice Harlan so eloquently pointed out in Bivens, have
a 1:1 correlation and that the reduction in the scope of remedies
necessarily involves a reduction in the scope of the constitutional
protections for citizens. See 403 U.S. at 400 n.3, 91 S. Ct. at 2007 n.3.
The majority speculatively declares that liability for damage caused by
unconstitutional conduct may overdeter officials from engaging in their
duties but remarkably fails to recognize that a nonliability rule may have
an equal and opposite effect: underdeterence of unconstitutional conduct.
The majority’s finding that the speculative overdeterrence of actions of
officials is weighty while the risk of underdeterrence of unconstitutional
conduct infringing on individual rights is not mentioned at all, suggests a
results-oriented jurisprudence that favors government officials who inflict
unconstitutional harms over citizens who endure them. Further, the
majority opinion ignores the fact that if overdeterrence is a problem, the
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legislature is free to provide indemnity for individual officers, which the
Iowa legislature has largely done. See Iowa Code § 669.21; id. § 670.8.
The majority’s vague suggestion that sweeping statutory immunities might
be a source of law to undermine the protections of article I of the
Constitution is unsound as a matter of constitutional law and fails to
recognize the fundamental role that article I rights play in limiting the
exercise of government power by the executive and legislative branches of
government. The majority fails to recognize that granting immunity to
officials for unconstitutional conduct leaves the burden of the harm from
that unconstitutional conduct on the injured citizen instead of on the
officials acting unconstitutionally.
The majority states that it has thrown Harlow overboard. Whether
the ghost of Harlow will reemerge in another form remains to be seen. And
just how great a barrier the negligence immunity standard will be to
prevent injured citizens attempting to recover from the unconstitutional
conduct of government officers will depend on future caselaw.
For the above reasons and the other reasons expressed in this
opinion, I dissent.
Hecht, J., joins this dissent.