Affirmative Duty and Constitutional Tort

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.

Part I identifies issues of tort policy that arise in affirmative duty cases, while Part II addresses the distinctive problems that come up in the constitutional tort context. Part III utilizes the analysis and conclusions reached in the preceding parts of the Article to derive two proposed principles for decision of these cases: First, where a governmental defendant has no prior control over the plaintiff or the injurer, as where a policeman chances upon a mugging on a street corner, a duty should be imposed only when the defendant knows the facts regarding the danger, or recklessly disregards those facts, and can respond to the danger immediately and with relative ease. Second, where the governmental defendant exercises control over the plaintiff or the danger, as when the plaintiff is a prisoner seeking protection from other inmates, the knowledge and ability requirements should be relaxed and liability imposed under a negligence, or perhaps gross negligence, standard.