reasoning that judicially created constitutional tort was appropriate where “the legislature has neither prohibited the creation of a constitutional tort action to remedy an unlawful search and seizure, nor has it crafted a meaningful alternative remedy for the constitutional violation.”
How later courts described this case
- reasoning that judicially created constitutional tort was appropriate where “the legislature has neither prohibited the creation of a constitutional tort action to remedy an unlawful search and seizure, nor has it crafted a meaningful alternative remedy for the constitutional violation.”
- concluding that search-and-seizure and arrest provisions of Connecticut Constitution afford private cause of action for money damages
- recognizing a private cause of action under the Connecticut Constitution and stating that “the great majority of state courts that have considered the question have recognized their authority to do so under their state constitutions”
- holding a private cause of action existed for the state’s violation of the constitution’s search-and-seizure provision
Written by the judges who cited it.
Distinguished
Distinguished by Martin v. Brady, 261 Conn. 372 (2002)
Although the defendants’ brief addressed the certified question, at oral argument before this court the defendants conceded that, in the plaintiffs complaint, properly construed, he sued them in their individual, rather than their official, capacities, and that, therefore, Binette v. Sabo, supra, 23, was inapplicable.
Distinguished by Martin v. Brady, 64 Conn. App. 433 (2001)
The defendants argue, and we agree, that Binette is distinguishable from the present case doctrinally.
The opinion
BERDON, J.,
concurring in part and dissenting in part. I join part II of the majority opinion, which concludes that we should recognize a common-law cause of action for violations of article first, §§ 7 and 9, of our state constitution for the policy reasons articulated in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 , 91 S. Ct. 1999 , 29 L. Ed. 2d 619 (1971). I pointed out in my concurring and dissenting opinion in Kelley Property Development, Inc. v. Lebanon, 226 Conn. 314, 353-54 , 627 A.2d 909 (1993), the following: “It is clear to me that when the government violates an individual’s state constitutional right, that individual should be made whole. Otherwise, the right would be an empty and meaningless one. To say that government should pay its way and bear the costs of its transgressions is like saying that people should tell the truth, earn their keep, and pay their debts. We can imagine exceptions to each of these maxims, circumstances under which we might be prepared to suspend their force, but they remain foundation stones of our moral order. [P. Schuck, Suing Government (1983) p. 112]. J. Friesen, ‘Recovering Damages for State Bills of Rights Claims,’ 63 Tex. L. Rev. 1269 (1985). The reasoning employed in [Bivens], which holds that a cause of action for damages is available for violation of the Fourth Amendment, is also applicable to violations of state constitutional rights. [W]here federally protected rights have been invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief. Bell v. Hood, 327 U.S. [678, 684, 66 S. Ct. 773 , 90 L. Ed. 939 (1946)]. [Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, supra], 392.” (Internal quotation marks omitted.)
Nevertheless, I would not reach the issues raised in part I of the majority opinion because it is not necessary in view of our conclusion with respect to the Bivens *76 resolution in part II. Whether article first, § 10, of the state constitution provides for a cause of action for damages caused by the defendants’ violations of specific other provisions of our state constitution should be left for another day. 1
Accordingly, I disagree with part I of the majority opinion and concur with part II.
Notwithstanding the gratuitous comment in footnote 11 of the majority opinion, I assume that no one on this court questions the viability of Gentile v. Altermatt, 169 Conn. 267, 286 , 363 A.2d 1 (1975), appeal dismissed, 423 U.S. 1041 , 96 S. Ct. 763 , 46 L. Ed. 2d 631 (1976), which holds “all rights derived by statute and the common law extant at the time of the adoption of article first, § 10, are incorporated in that provision by virtue of being established by law as rights the breach of which precipitates a recognized iqjury, thus being exalted beyond the status of common-law or statutory rights of the type created subsequent to the adoption of that provision. . . . The adoption of article first, § 10, recognized all existing rights and removed from the power of the legislature the authority to abolish those rights in their entirety. Rather, the legislature retains the power to provide reasonable alternatives to the enforcement of such rights. Where such reasonable alternatives are created, the legislature may then restrict or abolish the incorporated common-law or statutory rights.” (Citations omitted.)