Iowa Law Review, Vol. 67, No. 3 (March 1982), pp. 443-483 (reprinted with permission)


The issue of causation is fundamental to every constitutional tort action. Money damages are not recoverable unless the defendant is found to have caused the plaintiff to be deprived of a constitutional right and that deprivation is the cause of some harm. In several recent decisions the Supreme Court has seized upon the language of causation as a means of restricting constitutional tort liability. In Monell v. Department of Social Services, for example, the Court based its rejection of respondeat superior on the implicit meaning of the term "causes." The concept of causation in a constitutional tort context thus requires a connection between the defendant and the plaintiff's injury more substantial than defendant's employment of the offending actor.

Despite its central place in the law of constitutional torts, the question of causation has attracted little critical analysis. Courts and commentators have tended to focus on the more clearly substantive aspects of the litigation. When the issue of causation is directly addressed, the analysis seldom goes beyond a superficial and sometimes inaccurate recital of common law "rules" of proximate cause. The courts have followed the orthodox common-law cause in fact and proximate cause models in discussing the issue of causation.

In this Article it is argued that the particular policies underlying constitutional tort actions are different in some respects from those deemed important in a common-law setting. On the one hand, the Court explains that rules governing constitutional tort actions should serve to deter future misconduct, vindicate the plaintiff's constitutional rights, and compensate the plaintiff for the resulting harm. This set of policies closely corresponds to those that influence common-law causation issues. It differs only in that the source of the underlying right is the Constitution. Constitutional torts are thought to be potentially more harmful than their common-law counterparts because they are committed with the imprimatur of state authority. A person "may bar the door against an unwelcome private intruder .... [but] [t]he mere invocation of [governmental] power by a ... law enforcement official will normally render futile any attempt to resist an unlawful entry or arrest." As the Constitution stands as the final barrier between governmental power and individual liberty, deterring constitutional violations is an especially valued goal.

There is, however, a competing set of values that frequently is not openly acknowledged. The Court has exhibited a policy preference to avoid what it perceives to be an excessive burdening of governmental conduct, both financially and otherwise. The perceived burdens of constitutional tort litigation may reflect the values underlying the concept of federalism. Constitutional torts necessarily affect the interplay between federal power and state prerogatives, and the Court is reluctant to displace traditional prerogatives of state sovereignty. An expansion of constitutional tort liability also poses the danger of imposing rigid uniform standards by which the day-to-day behavior of state and local officials would be measured. The resulting loss of flexibility and increased centralization of power are conditions thought by some to threaten the preservation of individual liberties. Furthermore, there may be contexts in which the Court does not want to subject governments to the same constitutional restrictions protecting individual liberties as when they act as regulators of the general public. The Court may be willing to tolerate governmental conduct directed at a governmental employee that it would not if directed at the public at large. Collectively these concerns reflect policy considerations largely absent from common-law torts.

This Article discusses the interplay between these competing sets of policies and the influence they have on judicial resolution of causation issues. To the extent that these values are irreconcilable, principles of causation developed in the constitutional tort context reflect pragmatic compromises rather than a consistent application of settled principles. Courts have given effect to the policy of not overly burdening governmental conduct while clinging to familiar common-law terminology. By purporting to apply well-settled principles of causation, courts have produced opinions that mask the reasoning behind the result and, in some instances, provide misleading guidance for resolving future cases.

In Part I it is argued that uniform principles of causation are necessary in constitutional tort cases to ensure that the scope of substantive constitutional rights does not vary from state to state. In Part II it is first analyzed how the Supreme Court has developed an approach to cause in fact that deviates from prevailing principles of common law. This variation best can be explained by a policy of avoiding excessive burdening of governmental conduct. This is followed by an analysis of the judicial treatment of proximate cause issues of the liability for the unforeseeable consequences and intervening causes. In this section it is illustrated how judicial articulation of constitutional tort causation issues in terms of common-law maxims often disguises the underlying policy considerations. Part III addresses a particular causation issue unique to constitutional torts: when does a government or supervisor cause an employee or subordinate to deprive the plaintiff of constitutional rights? In many instances, this issue can be more appropriately analyzed in terms of duty.