Colorblind? Constitutional? Tort?

Cristina Tilley

Private causes of action for constitutional injuries are doctrinal eels. They slither freely among formal legal categories – variously creatures of constitutional law¹ and tort;² of federal jurisdiction³ and even conflict of laws.⁴ They have no agreed genus name; sometimes they are called Ku Klux Act claims; sometimes Enforcement Act claims; technically claims pursuant to 42 U.S.C. Section 1983 and conversationally constitutional tort.⁵ Because they swim in and out of jurisprudential silos, they elude critical analysis under any single legal lens, virtually demanding interdisciplinary consideration. In Colorblind Constitutional Torts, Osagie K. Obasogie and Zachary Newman rise to this challenge, using history, doctrine, corpus linguistics, and critical race theory to pin down constitutional tort and identify an as-yet undiscovered reason that this once-powerful tool of racial justice is falling short of its early promise.

Colorblind begins with a compact and opinionated overview of Section 1983 history, beginning in the antebellum period and moving to the twenty-first century. Obasogie and Newman establish that pre-war slave patrols in the Southern states mutated into a loose web of post-war private and public racial vigilantism driven by “militias, the Ku Klux Klan, and eventually (in some areas) what we now call ‘the police.’” (Pp. 1148-50.) The Reconstruction Amendments, they suggest, reflected Congressional recognition that the mere fact of emancipation was insufficient to produce meaningful liberty for formerly enslaved people. The Fourteenth Amendment was therefore a critical companion initiative, designed to “change structural and institutional relations between whites and African-Americans.” (P. 1146.)⁶

Because Congress did not trust federal courts to partner with them as change agents, lawmakers endowed themselves with vast power to legislate racially just structures and institutions. (P. 1152.) Consequently, when white “mobs” comprising private citizens and public officers loosed “terroristic violence” on Black Southerners, Congress used this authority to legislate a forceful remedy – 42 U.S.C. Section 1983. The authors contend, based on this history, that constitutional tort is inextricable from the Fourteenth Amendment’s “goal of racial equality,” and the production of “new anti-racist equality norms.” (Pp. 1151-52.) When the Supreme Court authorized Section 1983 actions against marauding police officers in Monroe v. Pape nearly a century later, it explicitly reiterated that Section 1983 was tied to the racial equity ambitions of the Fourteenth Amendment. (P. 1155.)

Like many policing scholars, Obasogie and Newman consider the Section 1983 jurisprudence that developed in the post-Monroe decades too police-friendly to do the civilian protection job for which it was designed.⁷ Unlike most policing scholars, Obasogie and Newman trace the demise of constitutional tort’s racial justice power to the 1989 case Graham v. Connor. Their scrutiny of this oft-slighted case is itself a signal contribution. It deepens a literature trained primarily on the Court’s doctrine of qualified immunity, which shields officer-defendants whose behavior violated no “clearly established” constitutional right. (P. 1143.)

In Graham, a Black North Carolinian sued local police officers who roughed him up for suspicious behavior after ridiculing his pleas for orange juice to offset a diabetic insulin reaction. Graham claimed that when the officers caused him “a broken foot, cuts on his wrists, a bruised forehead, and an injured shoulder” they violated his constitutional rights. (P. 1140.) The Supreme Court used the case to announce that all civil claims of police “excessive force” were thereafter to be pleaded as deprivations of Fourth Amendment rights, and were to be rejected if the officers’ behavior was “objectively reasonable.” (P. 1141.) Graham, the authors lament, effectively prohibited police misconduct claims grounded in Fourteenth Amendment rights to racial equality and substantive due process. It forced those claims into a police-friendly “reasonableness” rubric, thus “de-racializing and de-historicizing a vehicle for civil remediation that was created for the specific purpose of racial justice in light of the grave wrongs suffered by African-Americans for several centuries.” (P. 1186.)

Laudably, the authors do more than blame the Court for this result. They also conduct a corpus linguistics study and support their charge with empirical evidence. Specifically, they select 200 random federal court cases involving Section 1983 claims – half from the period between Monroe and Graham and half from the period between Graham and 2016. (P. 1173.) They code the cases for rhetorical variables associated with different theories of Section 1983, and their findings are instructive.

First, they find that after Graham, the uses of historical titles for Section 1983 (the Ku Klux Act or the Enforcement Act) dropped 29 percent, “highlight[ing] a waning interest in or commitment to acknowledging the original purpose and context of [these] causes of action.” (P. 1176.) Second, they find that after Graham, mentions of the Fourteenth Amendment in police misconduct cases dropped by 22 percent while mentions of the Fourth Amendment increased by 49 percent. This finding is unsurprising in light of the Court’s Graham directive, but the authors think it signifies more than lower court deference to precedent. Judicial rhetoric that distances constitutional tort from the Fourteenth Amendment, they contend, tells the public that constitutional tort litigation has little to do with racial justice at large and much to do with technically incompetent officers who misbehave for a variety of non-racial reasons. (P. 1176.) Finally, the authors find that while courts in the pre-Graham years occasionally identified the races of the civilian and officer litigants, those in the post-Graham years rarely did. Again, the authors infer that this rhetorical trend reflects a judicial assumption that race is irrelevant to police misconduct even when evidence in and out of court might suggest otherwise. (P. 1176.)

In all, the authors conclude that Graham has transformed Section 1983 into a technocratic mechanism that treats police systems as presumptively benign and officer misconduct as presumptively rare – a far cry from its origins as a democratic mechanism to forge just systems from a history of racial hostility. (P. 1201.) Ultimately, Obasogie and Newman make a poignant case that Graham is part of an ascendant colorblind constitutional ethos that obscures the existence of racialized power structures in order to functionally immunize them from legal scrutiny. (P. 1195-99.) If Section 1983 is to fulfill its original purpose, they urge, federal courts must revive a race-conscious approach to police wrongdoing and aspire to systemic reform. (P. 1207.) What that approach might entail on an operational level is not detailed. The authors seem to prefer a regime in which civilians could claim that police behavior considered “reasonable” under the Fourth Amendment was nevertheless a Fourteenth Amendment rupture (P. 1207) because it involved a race-based use of discretion or “shocked the conscience.”⁸

There is little reason for readers to doubt that the authors’ plea to rehistoricize and reracialize constitutional tort could improve its tenor, and lead to concrete doctrinal changes. But there is reason to doubt that this move alone – or even in conjunction with robust changes to qualified immunity – can produce the wholesale reckoning the authors seek. After all, the relevant body of law is known as constitutional tort for a reason. Tort law is fundamentally concerned with one-on-one wrongdoing and individualized dignitary vindication.⁹ Indeed, before Section 1983 existed, police wrongdoing was remedied exclusively through garden-variety tort causes of action.¹⁰ The authors miss an opportunity when they assume that centering individual officer wrongdoing in police misconduct litigation necessarily undermines the goal of racially just policing.

This public law skepticism about the smallness of private tort litigation is common but regrettable,¹¹ and police accountability law shows why. Section 1983 is an uneasy hybrid of tort form, constitutional substance, and jurisdictional expedience precisely because the kind of racial toxicity it targets arises from a virulent public-private symbiosis. Racial implicit bias takes root in the cradle of private homes, matures in the monoculture of classrooms and playfields shaped by property covenants and discriminatory banking systems, and blooms on public streets surveilled by tax-funded officers who are acting out a hierarchy learned in infancy.¹²

Constitutional tort defies categorization because the problem it addresses defies categorization. Obasogie, Newman, and the many public law scholars who mourn the decline of Section 1983 regard it as a lost panacea for racialized police misconduct. They treat its revival as a necessary and sufficient response to unjust policing. And they make a forceful case that an ideal version of constitutional tort could push back on discriminatory policing systems. But when they write off suits focusing on individual officer behavior, they reveal a short-sightedness about the power of venerable torts like battery, false imprisonment, and intentional infliction of emotional distress – all capable of stigmatizing real officers who indulge real racial bias while in uniform.¹³ As Obasogie and Newman continue their excellent descriptive and prescriptive work on American policing, one hopes they will grapple with the role of private bias in unjust policing and the role of private law in eradicating it.

1. See, e.g. Noah R. Feldman & Kathleen Sullivan, Constitutional Law 884 (2019).
2. See, e.g., John C.P. Goldberg et al., Tort Law: Responsibilities and Redress 769 (2021).
3. See, e.g. Richard H. Fallon et al., The Federal Courts and the Federal System 948 (2009).
4. See, e.g., Herma Hill Kay et al., Conflict of Laws, Cases, Comments, and Questions 605 (2018).
5. See Marshall Shapo, Monroe v. Pape: Constitutional Tort and the Frontiers Beyond, 60 Nw. U. L. Rev. 277 (1965).
6. While this review accepts for the sake of argument the authors’ claim that the Reconstruction Amendments are anti-subordinating, that claim is, of course, contested. See, e.g., Jack M. Balkin & Reva B. Siegel, The American Civil Rights Tradition: Anticlassification or Antisubordination?, 58 U. Miami L. Rev. 9 (2002).
7. See, e.g., Richard H. Fallon, Bidding Farewell to Constitutional Torts, 107 Calif. L. Rev. 993 (2019).
8. See, e.g., Johnson v. Glick, 481 F.2d 1029 (2d Cir. 1973) (overruled by Graham v. Connor, 490 U.S. 386, 393 (1989)).
9. See, e.g., John C.P. Goldberg & Benjamin Zipursky, Torts as Wrongs, 88 Tex. L. Rev. 917 (2010).
10. See, e.g. Caleb Foote, Tort Remedies for Police Violations of Individual Rights, 39 Minn. L. Rev. 493 (1955).
11. See, e.g., Abram Chayes, The Role of the Judge in Public Law Litigation, 89 Harv. L. Rev. 1281 (1976).
12. See, e.g., Steven O. Roberts & Michael T. Rizzo, The Psychology of American Racism, 76 Am. Psych. 475 (2021) (attributing the persistence of American racism to a symbiosis of individual psychology and at-large “sociocultural forces”).
13. See, e.g., Samuel Beswick, Equality under Ordinary Law, __ Sup. Ct. L. Rev. __ (forthcoming, 2024), available at SSRN (Nov. 9, 2023) (comparing American constitutional tort with the use of “ordinary law” in other countries to curtail police misconduct).