quick facts

An Implied Constitutional Right to Damages with a High Bar

Connecticut presents a relatively plaintiff friendly government-liability landscape. The Connecticut Supreme Court has concluded that a Bivens-type private cause of action for money damages exists against government officials for alleged violations of the search-and-seizure and arrest sections of the Connecticut Constitution. 1 However, the Court emphasized that its “decision to recognize a Bivens-type remedy in this case does not mean that a constitutional cause of action exists for every violation of our state constitution.” 2 Moreover, “[n]o state officer or employee shall be personally liable for damage or injury, not wanton, reckless or malicious, caused in the discharge of his or her duties or within the scope of his or her employment.” 3 This statutory provision creates a high bar for constitutional claims against state personnel. Additionally, municipal employees enjoy “a qualified immunity in the performance of governmental acts.” 4 Plaintiffs will generally lack a deep-pocket remedy in these constitutional cases because there is no indemnification requirement for employees’ “willful or wanton acts” and it remains an open question whether municipalities can be held directly liable under the cause of action created in Binette. 5

A Deep-Pocket Remedy for Police Misconduct

In 2020, Connecticut passed a law allowing plaintiffs to bring civil actions for equitable relief or damages for police misconduct, including constitutional violations. 6 The statute greatly expands government liability and increases the number of constitutional provisions under which victims of police misconduct can sue. The statute reads: “No police officer, acting alone or in conspiracy with another, shall deprive any person or class of persons of the equal protection of the laws of this state, or of the equal privileges and immunities under the laws of this state, including, without limitation, the protections, privileges and immunities guaranteed under article first of the Constitution of the state,” and it goes on to provide a right of action for damages and equitable relief for violations of the Act. 7 By waiving government immunity unless “the police officer had an objectively good faith belief that such officer’s conduct did not violate the law,” the law creates qualified immunity for government entities. 8 While expanding government liability, the statute limits personal liability of police officers by mandating that the state or municipal employer indemnify the officer unless the officer “has a judgment entered against him or her for a malicious, wanton or wilful act.” 9

Aside from Connecticut’s police law and some limited statutory waivers (including a provision allowing the state to waive sovereign immunity on a case-by-case basis), sovereign immunity continues to be the rule rather than the exception for damages claims against the State. 10 Municipalities, on the other hand, are subject to greater liability than the State, with Connecticut law allowing plaintiffs to hold municipalities liable for certain instances of negligence. 11 The statute governing claims against municipalities exempts from its waiver of governmental immunity claims based on employees’ intentional torts. The statute also extends to the municipality itself common-law municipal-officer immunity for discretionary acts. 12 Municipalities must indemnify their employees for liability from actions within the scope of employment unless the damage is “the result of any wilful or wanton act.” 13