University of Michigan Journal of Law Reform, Vol. 16, No. 1 (Fall 1982), pp. 1-44


The Constitution ordinarily places only negative restrictions on government and does not require affirmative acts to assist individuals. The statutory vehicle for most constitutional tort litigation, 42 U.S.C. section 1983, echoes this constitutional principle. It extends liability to "[e]very person who ... [under color of state law] subjects, or causes to be subjected, any ... person" to the deprivation of federal rights, and makes no provision for a duty on governmental defendants to stop others from harming the plaintiff.

For some courts this principle disposes of affirmative duty claims forthwith. A noteworthy example is the recent seventh circuit case Bowers v. DeVito. A man released from a state mental hospital killed a woman, and her estate brought a constitutional tort action against the officials responsible for his release. The court denied liability, explaining that "[t]he Constitution is a charter of negative liberties," that "it does not require ... the state to provide ... even so elementary a service as maintaining law and order," and that "as the State of Illinois has no federal constitutional duty to provide such protection its failure to do so is not actionable under section 1983."

In spite of these constitutional and statutory principles, other courts have upheld affirmative duty claims in constitutional tort. Their opinions, however, do not adequately explain the foundation and scope of these affirmative duties. In particular, they do not respond to the rationale of Bowers, that constitutional tort is available only to redress violations of constitutional rights.

This Article argues that the Bowers principle is wrong. It examines the issues of doctrine and policy that bear on the affirmative duty question in constitutional tort and contends that affirmative duties may be imposed even though constitutional rights are generally negative in character, as a matter of federal constitutional common law. It develops a foundation in doctrine and policy, so far lacking in the opinions, to support these duties and to place proper limits upon them.