Pennsylvania Commonwealth Reports
JONES v. CITY OF PHILADELPHIA, 890 A.2d 1188 (Pa.Commw. 2006) Thomas JONES v. CITY OF PHILADELPHIA, Police Commissioner John Timoney; Lieutenant Joseph Mullin; Police Officer Cedric Gaines; Police Officer Michael Livewell; Police Officer Dwayne Merrill; Police Officer James Klepesley; Police Officer Susan Clark; Police Officer Charles Marable; Police Officer Paul Langford; Police Officer Jose Perez; Police Officer Darryl Gregory Appeal of: City of Philadelphia. Commonwealth Court of Pennsylvania. Argued June 8, 2005. Decided January 25, 2006.
Appeal from the Court of Common Pleas, Philadelphia County, October Term 2001 No. 3641, Rau, J. Page 1189
[EDITORS’ NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] Page 1190
Craig Gottlieb, Philadelphia, for appellant, City of Philadelphia.
Federico C. Sayre, Santa Ana, CA, for appellee, Thomas Jones.
BEFORE: COLINS, President Judge, and McGINLEY, Judge, and SMITH-RIBNER, Judge, and FRIEDMAN, Judge, and LEADBETTER, Judge, and COHN JUBELIRER, Judge, and LEAVITT, Judge.
OPINION BY Judge COHN JUBELIRER.
The City of Philadelphia (City) has filed an interlocutory
appeal by permission from the order entered January 30,
2004, by the Court of Common Pleas of Philadelphia County,
denying the City’s Motion for Summary Judgment. Addressing
a “constitutional issue of first impression” in a
well-researched and thoughtful opinion, the trial court
determined that Thomas Jones (Jones) was entitled to seek a
civil remedy in money damages against the City for its
alleged use of excessive force against him, in violation of
his state constitutional rights.
I. Introduction
In 2001, Jones filed a complaint for money damages against
eleven individual police Page 1191 officers[fn1]
(Officers) and the City, alleging that he had been
personally injured when the Officers used excessive force
in apprehending him for driving an admittedly stolen
car.[fn2] Jones claimed the Officers’ actions violated his
right against unreasonable seizure under Article I, Section
8 of the Pennsylvania Constitution.[fn3] The City filed a
Motion for Summary Judgment.[fn4] It claimed that, even if
Jones could prove the City’s policies fostered the use of
excessive force, the City was immune under Pennsylvania’s
Political Subdivision Tort Claims Act (Act), and need not
remedy the physical harm that it or its officers caused.
The trial court denied the City’s Motion for Summary
Judgment.[fn5] The court concluded that the City could be
liable under Article I, Section 8 of the Pennsylvania
Constitution if: (1) Pennsylvania courts create a cause of
action under Section 8 for damages; (2) the
judicially-created cause Page 1192 of action applies to
both the City and individual officers; and (3) it is beyond
the legislature’s power to immunize government defendants
from this judicially created cause of action. Jones v. City
of Philadelphia, 68 Pa. D. & C.4th 47 (C.P. Phila. County
2004). The court also determined that the City was not
immune from suit under the Act, because “the legislature
does not have the power under the constitution to take away
a state constitutional right.” Jones, 68 Pa. D. & C.4th at
84.
The City requested the trial court to certify the matter
for an interlocutory appeal by permission pursuant to 42
Pa.C.S. § 702(b) “on the specific question of
whether the city can be liable under the Pennsylvania
Constitution for a claim of excessive force.” Jones, 68 Pa.
D. & C.4th at 54. The trial court denied the City’s
request. The City then petitioned this Court for review
pursuant to Pa. R.A.P. 1311, and we granted the City’s
petition for an interlocutory appeal.[fn6]
On appeal, the City states: “to avoid exponentially
complicating an already complex case, we accept for purposes
of the current appeal that a cause of action exists under
the Pennsylvania Constitution, because resolution of that
question is unnecessary for resolution of this appeal.”
(City Br. at 16.) Instead, the City asks this Court to
determine whether it can be liable in damages for a claim
of excessive force under Article I, Section 8 of the
Pennsylvania Constitution when: (1) the Bivens case[fn7]
applies only to claims against individual officers, and not
to claims against the government; or, in the alternative,
(2) pursuant to Robbins v. Cumberland County Children and
Youth Serv., 802 A.2d 1239 (Pa.Cmwlth. 2002) (en
banc),[fn8] the Pennsylvania legislature’s grant of
immunity under 42 Pa.C.S. § 8541 serves to bar any
State constitutional claims asserted against the City.[fn9]
However, the basis of the trial court’s order is that a
cause of action exists under the Pennsylvania Constitution
and we must, therefore, address this holding. Moreover,
without an understanding of the characteristics and scope
of the constitutional right at issue, this Court would not
be able to determine whether the City was entitled to the
governmental immunity it claims. Page 1193
The trial court agreed with Jones’ argument that Article
I, Section 8 of the Pennsylvania Constitution, guarantees
him a monetary remedy if the City is found by a jury to be
liable for the use of excessive force, which caused him
physical injury. This is an issue of first impression in
Pennsylvania. The trial court agreed with Jones that, if
the Pennsylvania appellate courts do not create such a
cause of action, the Declaration of Rights enumerated in
the Pennsylvania Constitution becomes nothing more than a
hollow promise.
However, before we can determine whether the Court should
recognize a cause of action for monetary damages for
governmental use of excessive force in violation of Article
I, Section 8 of the Pennsylvania Constitution (in other
words, a constitutional tort[fn10]), we must first
determine the scope of Jones’ right to be protected from
the City’s alleged use of excessive force under Article I,
Section 8 of the Pennsylvania Constitution.[fn11]
Accordingly, we first determine the scope of this right
under Article I, Section 8 of the Pennsylvania
Constitution, and whether the protections are coextensive
with or greater than the protections under the Fourth
Amendment of the Federal Constitution. We then examine
whether it is necessary for this Court to create a remedy
under the Pennsylvania Constitution to enable Jones to
recover monetary damages from the City for a violation of
Article I, Section 8.
II. Analysis
A. Determining The Scope of the Right Under Pennsylvania’s
Constitution
“Pennsylvania has a long and active history of independent
enforcement of its state constitution.” Jennifer Friesen,
Recovering Damages for State Bills of Rights Claims, 63
Tex. L.Rev. 1269, 1278 n. 50 (1985). Our Supreme Court has
emphasized that, “in interpreting a provision of the
Pennsylvania Constitution, we are not bound by the
decisions of the United States Supreme Court which
interpret similar (yet distinct) federal constitutional
provisions.” Commonwealth v. Edmunds, 526 Pa. 374, 388, 586
A.2d 887, 894 (1991). This is because each state has the
power to go beyond the minimum levels of protection
established by the federal constitution which are “equally
applicable to the [analogous] state constitutional
provision,” id. (quoting Commonwealth v. Platou, 455 Pa.
258, 260 n. 2, 312 A.2d 29, 31 n. 2 (1973), cert. denied,
417 U.S. 976, 94 S.Ct. 3183, 41 L.Ed.2d 1146 (1974),
overruled by, Commonwealth v. Reese, 520 Pa. 29, 549 A.2d
909 (1988)), as long as the state remains faithful to the
minimum guarantees provided by the federal constitution.
Edmunds at 389, 586 A.2d at 895. In fact, our state Supreme
Court has “stated with increasing frequency that it is both
important and necessary that we undertake an independent
analysis of the Pennsylvania Constitution, each time a
Page 1194 provision of that fundamental document is
implicated.” Id. at 389, 586 A.2d at 894-95; see also
PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 100 S.Ct.
2035, 64 L.Ed.2d 741 (1980) (Rehnquist, J.) (recognizing
that states have power to provide broader standards and are
encouraged to engage in independent analysis in drawing
meaning from their own constitutions). Furthermore, state
courts are now required to make a “plain statement” of the
“adequate and independent state grounds” upon which they
rely, to avoid any doubt that they have rested their
decisions “squarely upon [state] jurisprudence.” Edmunds,
526 Pa. at 390, 586 A.2d at 895 (citing Michigan v. Long,
463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983)).
Consequently, our Supreme Court, in Edmunds, established
four factors to be briefed and analyzed in each case
implicating a provision of the Pennsylvania
Constitution:[fn12]
1) the text of the Pennsylvania constitutional provision;
2) history of the provision, including Pennsylvania
case-law;
3) related case-law from other states;
4) policy considerations, including unique issues of
state and local concern, and applicability within modern
Pennsylvania jurisprudence.
526 Pa. at 390, 586 A.2d at 895. “Depending upon the
particular issue presented, an examination of related
federal precedent may be useful as part of the state
constitutional analysis, not as binding authority, but as
one form of guidance. However, it is essential that courts
in Pennsylvania undertake an independent analysis under the
Pennsylvania Constitution.” Id. at 390-91, 586 A.2d at 895.
Although judges and courts are not required to follow this
methodology in their opinions, see Ken Gormley, The
Pennsylvania Constitution After Edmunds, 3 Widener J.
Pub.L. 55, 66 (1993), we do so here because Edmunds
provides structure and a consistent means to analyze the
issue at bar.[fn13]
Thus, in the following four subsections, we examine each of
the factors set forth in Edmunds.
1. Edmunds Analysis — Text
The wording of Article I, Section 8 of the Pennsylvania
Constitution is almost identical to that of the Fourth
Amendment. David Rudovsky, Searches and Seizures, in The
Pennsylvania Constitution — A Treatise on Rights and
Liberties 299, 300 (Ken Gormley ed., 2004). The text of
Article I, Section 8 of the Pennsylvania Constitution
provides:
The people shall be secure in their persons, houses,
papers and possessions from unreasonable searches and
seizures, Page 1195 and no warrant to search any place or
to seize any person or things shall issue without
describing them as nearly as may be, nor without probable
cause, supported by oath or affirmation subscribed to by
the affiant.
Pa. Const. art. I, § 8. The text of the Fourth
Amendment to the U.S. Constitution states:
The right of the people to be secure in their persons,
houses, papers and effects, against unreasonable searches
and seizures, shall not be violated, and no Warrants shall
issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.
U.S. Const. amend. IV.
Neither of these provisions explicitly describes an
individual’s right to be protected from the government’s use
of excessive force. While we have found no case law
establishing the requirements to prove a claim for
excessive force under Article I, Section 8 of the
Pennsylvania Constitution, with regard to the federal
constitution,
[w]here . . . the excessive force claim arises in the
context of an arrest or investigatory stop of a free
citizen, it is most properly characterized as one invoking
the protections of the Fourth Amendment, which guarantees
citizens the right `to be secure in their persons . . .
against unreasonable . . . seizures’ of the person.
Graham v. Connor, 490 U.S. 386, 394, 109 S.Ct. 1865, 104
L.Ed.2d 443 (1989) (emphasis added). Furthermore, the
United States Supreme Court, in Tennessee v. Garner, 471
U.S. 1, 7, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985), stated that
“there can be no question that apprehension by the use of
deadly force is a seizure subject to the reasonableness
requirement of the Fourth Amendment.” Federal courts have
required that, to state a claim for excessive force under
the Fourth Amendment, a defendant must first show that: (1)
a seizure has occurred; and (2) the seizure was
unreasonable. Brower v. County of Inyo, 489 U.S. 593, 599,
109 S.Ct. 1378, 103 L.Ed.2d 628 (1989).[fn14]
2. Edmunds Analysis — History and Pennsylvania Case
Law
The history of Article I, Section 8 of the Pennsylvania
Constitution, has been described extensively in court
opinions, law review articles and treatises. For that
reason, and for the sake of brevity, we provide a brief
reiteration of major points in the history of this
provision.
As eloquently stated by the trial court:
[T]he Pennsylvania Constitution must be interpreted
against this backdrop: Page 1196 Pennsylvanians risked
execution for treason for renouncing the British Crown’s
rule and establishing a government subordinate to its
people. They believed so deeply in individual rights and
liberties that they made the Declaration of Rights the
first article of their new constitution. When the
legislative majority encroached on those rights,
Pennsylvanians responded by re-asserting the importance
of individual rights by taking away the government’s
majority power over those rights in the Constitutional
Convention of 1790.
Jones, 68 Pa. D. & C.4th at 62. The Declaration of Rights
included the right to be free from unreasonable searches
and seizures and the right to life, liberty, property,
happiness and safety. Id. at 59; see also John L. Gedid,
History of the Pennsylvania Constitution, in The
Pennsylvania Constitution — A Treatise, supra, at
42. Constitutional limitations on government authority to
conduct searches and seizures were thus “grounded in the
universal distrust of the practices of English officials in
England and in the colonies in the period immediately
preceding the Revolutionary War,” Rudovsky, supra, at 300,
and existed in Pennsylvania “more than a decade before the
adoption of the federal Constitution, and fifteen years
prior to the promulgation of the Fourth Amendment.”
Edmunds, 526 Pa. at 392, 586 A.2d at 896 (quoting
Commonwealth v. Sell, 504 Pa. 46, 63, 470 A.2d 457, 466
(1983)). In fact, the “modern” version of Article I,
Section 8, as revised extensively in 1790, has remained
untouched for two hundred years, with the exception of the
words “subscribed to by the affiant,” added by the
Constitutional Convention of 1873. Edmunds, 526 Pa. at 393,
586 A.2d at 897 (citing Buckalew, An Examination of the
Constitution of Pennsylvania, at 13 (1883)).
As the Supreme Court has stated repeatedly in interpreting
Article I, Section 8, that provision is meant to embody a
strong notion of privacy. See, e.g., Commonwealth v.
Yastrop, 564 Pa. 338, 768 A.2d 318 (2001). In Sell, the
Supreme Court explained, “the survival of the language now
employed in Article I, section 8 through over 200 years of
profound change in other areas demonstrates that the
paramount concern for privacy first adopted as part of our
organic law in 1776 continues to enjoy the mandate of the
people of this Commonwealth.” 504 Pa. at 65, 470 A.2d at
467. As described by the trial court, our Supreme Court
“echoed with passion the importance of upholding this
provision in yet another case”:
It insulates us from dictatorial and tyrannical rule by
the state, and preserves the concept of democracy that
assures the freedom of its citizens. This concept is
second to none in its importance in delineating the
dignity of the individual living in a free society.
Jones, 68 Pa. D.C.4th at 63 (quoting Commonwealth v.
Miller, 513 Pa. 118, 127, 518 A.2d 1187, 1192 (1986)).
Consequently, in certain situations, Article I, Section 8,
has come to be construed as more protective of personal
privacy than the Fourth Amendment. Rudovsky, supra, at 302;
Commonwealth v. Smith, 575 Pa. 203, 219, 836 A.2d 5, 15
(2003) (stating that “[t]his Court has indeed accorded
greater protections to the citizens of this state under
Article I, Section 8, than under the Fourth Amendment in
certain circumstances . . .” (emphasis added)). Given the
textual similarity between Article I, Section 8 and the
Fourth Amendment, the finding of a privacy-based, broader
state constitutional right derives from the case law
interpreting the history of the Pennsylvania provision, and
not from any textual command. Commonwealth v. Glass, 562
Pa. 187, 198 n. 11, 754 A.2d 655, 662 n. 11; Commonwealth
v. Page 1197 Cass, 551 Pa. 25, 42, 709 A.2d 350, 358
(1998) (noting that “it is not the text itself which imbues
Pennsylvania jurisprudence with its unique character but,
rather, the history of our case law as it has developed in
the area of search and seizure”), cert. denied, 525 U.S.
833, 119 S.Ct. 89, 142 L.Ed.2d 70 (1998).
There has been significant Pennsylvania case law about the
search and seizure provisions of Article I, Section 8, in
the context of unreasonable seizures of evidence, since
the Fourth Amendment exclusionary rule[fn15] was made
applicable to the states in Mapp v. Ohio, 367 U.S. 643, 81
S.Ct. 1684, 6 L.Ed.2d 1081 (1961). During the first decade
after Mapp, our Supreme Court’s decisions tended to
parallel those of the U.S. Supreme Court under the Fourth
Amendment; however, beginning in 1973, the Pennsylvania
Supreme Court began to reject certain Fourth Amendment
rulings. See Edmunds, 526 Pa. at 392-99, 586 A.2d at
896-99. In its Glass opinion, our Supreme Court explained
the reason for this divergence in state and federal law:
The philosophical divergence . . . concerned the purposes
of the exclusionary rule originally commanded by Mapp: the
U.S. Supreme Court has since come to focus on deterrence
of police misconduct, while the more recent Article I,
Section 8 cases from this Court have focused on the
potentiality of the rule, once embraced by us, to
safeguard privacy and ensure that warrants are issued only
upon probable cause.
562 Pa. at 199 n. 11, 754 A.2d at 662 n. 11; see also
Commonwealth v. Williams, 547 Pa. 577, 591, 692 A.2d 1031,
1038 (1997) (noting that “this Court has held that Article
I, Section 8 often provides greater protection since the
core of its exclusionary rule is grounded in the protection
of privacy while the federal exclusionary rule is grounded
in deterring police misconduct”). For that reason, our
Supreme Court recognized that Article I, Section 8 of
Pennsylvania’s Constitution, provides enhanced privacy
protections over those of the Fourth Amendment when it
excludes damaging evidence through broader application of
the exclusionary rule.[fn16] However, there has been no
Pennsylvania case law defining the search and seizure
provisions of Article I, Section 8, in the context of
allegations of excessive force, nor has a test been
established for a violation of that provision by use of
excessive force. Page 1198
3. Edmunds Analysis — Related State and Federal Case
Law
Pennsylvania’s general prohibition against unreasonable
search and seizure is not unique. In fact, state
constitutional clauses restraining the government’s
physical invasions of citizens’ privacy are “remarkably
similar to one another and to the Fourth Amendment. . . .”
and constitutions in forty-six states contain both a
prohibition on unreasonable searches and a clause
respecting warrants. Jennifer Friesen, State Constitutional
Law: Litigating Individual Rights, Claims and Defenses 11-5
(3rd ed. 2000) (footnote omitted). However, with regard to
the unreasonable seizures of evidence, “no other area of
constitutional rights has seen a wider and more frequent
divergence between state and federal supreme courts, and
many state courts have not hesitated to ascribe different
meaning, for state purposes, to even identical language.”
Id. (emphasis added). For example, states have repeatedly
rejected, as a model for applying state search and seizure
provisions, the Fourth Amendment test for seizures
articulated in California v. Hodari D., 499 U.S. 621, 111
S.Ct. 1547, 113 L.Ed.2d 690 (1991) (holding that there is
no seizure governed by the Fourth Amendment until there is
an exercise of physical force by the officer or a suspect’s
submission to authority).[fn17]
Although much has been written about the search and
seizure provisions in the context of unreasonable seizures
of evidence, we found only one state court opinion, Hines
v. French, 157 Md.App. 536, 852 A.2d 1047 (2004), where the
issue involved a state constitutional violation for the
government’s use of excessive force. The Maryland court in
that case found that the “standards for analyzing claims of
excessive force are the same under [the state’s
constitution] as that under the Fourth Amendment of the
United States Constitution.”[fn18] Id. at 1069.
4. Edmunds Analysis — Policy Considerations
Edmunds directs that, “in analyzing any state
constitutional provision, it is necessary to go beyond the
bare text and history of that provision as it was drafted
200 years ago, and consider its application within the
modern scheme of Pennsylvania jurisprudence.” 526 Pa. at
402, 586 A.2d at 901. We are also to look for “unique
issues of state and local concern.” United Artists’ Theater
Circuit, Inc. v. City of Philadelphia, 535 Pa. 370, 383,
635 A.2d 612, 619 (1993).
In the modern scheme of Pennsylvania jurisprudence, in
certain situations, provisions of our State Constitution
provide individuals with greater protections than those
they would receive under similar provisions of the Federal
Constitution. Article I, Section 8, has been found in
particular cases to embody a strong notion of privacy,
which is greater than that of the Fourth Amendment. See,
e.g., Commonwealth v. Gindlesperger, 560 Pa. 222, 226 n. 3,
743 A.2d 898, 899 n. 3 (1999); Commonwealth v. Matos, 543
Pa. 449, 672 A.2d 769 (1996); Edmunds.[fn19] Page 1199
However, “the right to privacy under Pennsylvania law,
although extensive, is not unlimited.” Commonwealth v.
Crouse, 729 A.2d 588, 595 (Pa.Super. 1999), pet. for
allowance of appeal denied, 560 Pa. 738, 747 A.2d 364
(1999). Our Supreme Court has stated that “this [right to
privacy] alone `does not command a reflexive finding in
favor of any new right or interpretation asserted.'”
Commonwealth v. Smith, 575 Pa. 203, 219, 836 A.2d 5, 15
(2003) (quoting Commonwealth v. Cleckley, 558 Pa. 517,
525, 738 A.2d 427, 431 (1999)). The Court further
emphasized that “[w]e have not hesitated to follow the
prevailing Fourth Amendment standard in appropriate
instances.”[fn20] Smith, 575 Pa. at 219, 836 A.2d at 15
(emphasis added) (citing Cleckley, 558 Pa. at 524, 738 A.2d
at 431-32). In other words, the Court has instructed that
“we are to construe the Pennsylvania Constitution as
providing greater rights to its citizens than the federal
constitution `only where there is a compelling reason to do
so.'” Crouse, 729 A.2d at 596 (emphasis added) (quoting
Commonwealth v. Gray, 509 Pa. 476, 484-85, 503 A.2d 921,
926 (1985)).
Pennsylvania courts have not yet addressed whether there is
a compelling reason to find greater protection under
Article I, Section 8, than the Fourth Amendment, where the
government uses excessive force during a seizure.[fn21]
Paraphrasing a comment made by our Supreme Court in Smith,
575 Pa. at 222, 836 A.2d at 16, we must ask: is there
something unique to Article I, Section 8 that requires or
compels a different approach to the government’s use of
excessive force during a seizure than the approach employed
under the Fourth Amendment? For guidance, we examine the
approach our Supreme Court has used in other cases when
determining whether Article I, Section 8, provides greater
protection than would be provided under the Fourth
Amendment.
As support for deciding that Article I, Section 8, does
provide greater protection here, Jones and the trial court
cite the cases previously discussed in which our Supreme
Court found a compelling reason to provide greater
protection under Article I, Section 8, of the Pennsylvania
Constitution than did the U.S. Supreme Court under the
Fourth Amendment of the U.S. Constitution where the
admissibility of improperly seized evidence was at issue.
In these cases, Pennsylvania constitutional interpretation
Page 1200 diverged from interpretation of the Federal
Constitution.
For example, our Supreme Court found that, under Article
I, Section 8, Pennsylvania citizens do have a legitimate
expectation of privacy in their bank records. Commonwealth
v. DeJohn, 486 Pa. 32, 403 A.2d 1283 (1979), cert. denied,
444 U.S. 1032, 100 S.Ct. 704, 62 L.Ed.2d 668 (1980). It,
therefore, did not follow the United States Supreme Court’s
decision, United States v. Miller, 425 U.S. 435, 96 S.Ct.
1619, 48 L.Ed.2d 71 (1976), that, under the Fourth
Amendment, a depositor did not have a legitimate
expectation of privacy in bank records. Instead, it held
that a depositor can challenge the admissibility of seized
bank records.[fn22]
Four years later, our Court again parted ways with the
U.S. Supreme Court and held that, under Article I, Section
8, defendants charged with possessory offenses had
“automatic standing” to challenge the admission of seized
property into evidence. Sell. The U.S. Supreme Court had
abolished “automatic standing” for such defendants under
the Fourth Amendment in United States v. Salvucci, 448 U.S.
83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980).
In 1991, the Pennsylvania Supreme Court continued its
divergence from U.S. Supreme Court Fourth Amendment
jurisprudence regarding the admissibility of evidence, when
it decided that the Pennsylvania Constitution did not
permit a “good faith” exception to allow evidence that had
been seized with a defective warrant to be admitted.
Edmunds. The Court, in Edmunds, examined United States v.
Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984),
which held that the Fourth Amendment does not require
suppression of evidence seized pursuant to a defective
search warrant, as long as the police officer relied upon
the warrant in good faith, and concluded that, despite
textual similarities, Article I, Section 8, reflected a
stronger concern for privacy than the Fourth Amendment.
Edmunds, 526 Pa. at 396, 586 A.2d at 898. Thus, it did not
follow Leon’s “good faith” exception.
Five years later, in Matos, our Supreme Court had to
determine if it should “continue to interpret our State
Constitution as affording a suspect a greater degree of
protection from coercive state action,” 543 Pa. at 453, 672
A.2d at 771, or adopt the reasoning expressed by the U.S.
Supreme Court in Hodari D., which held that “seizure” of a
person under the Fourth Amendment requires either the
application of physical force with lawful authority or
submission to the assertion of authority. The Court
explained the issue before it to be whether the pursuit by
the police officer was a seizure:
If it was not a seizure then the contraband was abandoned
property, lawfully found by the officer. However, if the
pursuit was a seizure, then the abandonment was coerced,
and the officer must demonstrate either probable cause to
make the seizure or a reasonable suspicion to stop and
frisk.
Id.
The Court, in Matos, applied the Edmunds test and, relying
upon “ample policy reasons,” “reject[ed] the decision of
the United States Supreme Court in Hodari Page 1201 D. as
being inconsistent with the constitutional protections
afforded under Article I, Section 8 of the Pennsylvania
Constitution.” Matos, 543 Pa. at 462, 672 A.2d at 776.
Instead, the Court utilized the “Jones/Mendenhall”
standard, which coordinated prior state and U.S. Supreme
Court precedent, see Commonwealth v. Jones, 474 Pa. 364,
378 A.2d 835 (1977), cert. denied, 435 U.S. 947, 98 S.Ct.
1533, 55 L.Ed.2d 546 (1978) and United States v.
Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497
(1980), rehearing denied, 448 U.S. 908, 100 S.Ct. 3051, 65
L.Ed.2d 1138 (1980), with Pennsylvania’s Article I, Section
8 jurisprudence, to determine that “a person has been
`seized’ . . . only if, in view of all the circumstances
surrounding the incident, a reasonable person would have
believed he was not free to leave.” Matos, 543 Pa. at 458,
672 A.2d at 774 (citing Mendenhall, 446 U.S. at 555, 100
S.Ct. 1870). The Court found that, pursuant to this
definition, Matos had been seized and the discarded
contraband had to be suppressed.[fn23]
Clearly, there are many cases in which Pennsylvania courts
have interpreted Article I, Section 8 of the Pennsylvania
Constitution to provide greater protection for individuals
than the Fourth Amendment of the U.S. Constitution.[fn24]
However, we disagree Page 1202 with Jones and the trial
court that Article I, Section 8, always provides greater
protections than does the Fourth Amendment. Our Supreme
Court has not used a blanket approach; rather, it has
carefully examined the facts before it and, where
application of the federal test under the Fourth Amendment
would not protect the constitutional rights of the
defendant under the Pennsylvania Constitution, applied a
different test to exclude evidence improperly seized.
While we have not found precedent in which Pennsylvania
courts have applied Article I, Section 8, to governmental
use of excessive force, we have found cases in which the
Pennsylvania Supreme Court applied the same test under both
the Fourth Amendment and Article I, Section 8, to determine
the constitutionality of police/citizen encounters which
did not involve the use of excessive force.[fn25]
Most recently, our Supreme Court confirmed the
three-factor balancing test derived from Brown v. Texas,
443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979), which is
used in Fourth Amendment analysis and constitutes the
appropriate means of resolving constitutional challenges to
systematic roadway checkpoints in Pennsylvania under
Article I, Section 8. Commonwealth v. Beaman, 583 Pa. 636,
880 A.2d 578 (2005).
In Beaman, police stopped the defendant at a sobriety
checkpoint and charged him with two counts of driving under
the influence. He filed an unsuccessful motion to suppress,
claiming that sobriety checkpoints (roadblocks) were per se
violations of Article I, Section 8 of the Pennsylvania
Constitution. After his witness presented statistical data
to the trial court, the defendant argued that roving
patrols offer a practical alternative to roadblocks and,
therefore, the three-factor balancing test previously
applied in roadblock cases is inapplicable. Beaman at 648,
880 A.2d at 586. On appeal to the Supreme Court, the
primary question was “whether roving police patrols are
more efficient at identifying and apprehending drunk
drivers and, if so, whether this fatally undermines the
constitutional validity of checkpoints due to the
suspicionless stops that they entail.” Id., 583 Pa. at 638,
880 A.2d at 579.
The Court noted that the federal and state constitutions
use the same three-part balancing test to protect the same
interest: “both the United States Supreme Court and this
Court have recognized that the government has a compelling
interest in detecting intoxicated drivers and removing them
from the roads before they cause Page 1203 injury.” Id.
at 644, 880 A.2d at 583. As to the Fourth Amendment, the
Court noted that the U.S. Supreme Court has found that
suspicionless stops at roadblocks are constitutionally
reasonable. It then reviewed two Pennsylvania decisions
regarding similar roadblocks, Commonwealth v. Tarbert, 517
Pa. 277, 535 A.2d 1035 (1987) and Commonwealth v. Blouse,
531 Pa. 167, 611 A.2d 1177 (1992), each of which produced a
two-justice plurality. The Court determined there to be no
constitutional barrier to sobriety roadblocks under Article
I, Section 8, “so long as they are conducted in compliance
with the standards set forth in Tarbert and Blouse.” Beaman
at 648, 880 A.2d at 585 (discussing the Yastrop opinion).
The Court noted:
[I]n both Tarbert and Yastrop it was apparent that the
police could have apprehended some drunk drivers by
patrolling the roadways in the traditional manner, and yet
in each case a majority of Justices were of the view that
the compelling governmental interest in protecting the
safety of the motoring public rendered the [U.S.] Supreme
Court’s balancing test appropriate. Cf. [City of
Indianapolis v.] Edmond, 531 U.S. [32, 41, 121 S.Ct. 447,
148 L.Ed.2d 333 (2000)] (observing that, in the cases
where roadblocks had passed Fourth Amendment scrutiny, the
nature of the state’s interest — safe roads or
patrolling the border — was closely connected with
the law enforcement practice used.)
Id. at 651, 880 A.2d at 587 (emphasis added). Thus, the
Court found that the enhanced privacy protections of
Article I, Section 8, did not compel a different result in
this situation than would the Fourth Amendment.
In Commonwealth v. Hughes, 575 Pa. 447, 836 A.2d 893
(2003), our Supreme Court determined that the “apparent
authority exception” to the Fourth Amendment’s requirement
that the police have consent to enter a premises was also
consistent with Article I, Section 8. The Superior Court
had affirmed the trial court’s denial of a suppression
motion in which the defendant alleged that the police
officers had invalid third party consent to search his
residence. The Court found that apparent authority existed
for purposes of the Fourth Amendment; based on the totality
of the circumstances, the police officers had reason to
believe teenage girls standing on the porch of the
appellant’s parole residence had valid authority to allow
them to enter the premises. The Court then conducted an
independent analysis of the Pennsylvania Constitution,
using the four Edmunds factors, “to determine whether
Article I, Section 8, affords Appellant more protection
than its federal counterpart.” Hughes, 575 Pa. at 461, 836
A.2d at 901. In determining that Article I, Section 8, did
not afford more protection with regard to “consent to enter
a premises,” the Court analyzed Pennsylvania case law and
stated:
The adoption of the “good faith exception” [in Edmunds]
would have been inconsistent with the Pennsylvania Rules
of Criminal Procedure, and with the heightened expectation
of privacy that the Constitution affords our citizens.
Unlike Edmunds, there are no cases or rules suggesting
that there is a distinction between the Pennsylvania and
United States Constitutions with regard to consent to enter
a premises. Rather, this Court has interpreted consent to
enter a premises consistent with the interpretation of the
United States Supreme Court.
Id., 575 Pa. at 463-64, 836 A.2d at 902-03 (emphasis added
and citation omitted). The Court also noted that it had
been persuaded by the majority of state courts that adopted
the reasoning of the U.S. Supreme Court and determined that
apparent Page 1204 authority alone is sufficient. It
further explained:
While we recognize that Article I, Section 8 of the
Pennsylvania Constitution affords our citizens greater
protections than the Fourth Amendment to the United States
Constitution, we do not believe that requiring apparent
authority alone is inconsistent with our Constitution.
Article I, Section 8 provides that people must be free
from unreasonable searches and seizures. Because the
officers’ belief that they obtained consent from a third
party who had common authority over a premises must be
reasonable for the “apparent authority exception” to
apply, police officers should not be required to obtain a
search warrant based upon probable cause where they have
apparent authority to conduct a search. A person’s privacy
rights are no more violated when a third party with actual
authority to consent permits police officers to enter a
residence than when a person at the house with apparent
authority consents to the entry of the police officers
into the premises.
Id. at 466, 836 A.2d at 904.
The Pennsylvania Supreme Court had previously examined the
scope of constitutional protections in “consensual searches”
in Cleckley. There, our Supreme Court held that the
“voluntariness” analysis applied under the Fourth Amendment
to determine whether consent for a search was valid, was
sufficient under the Pennsylvania Constitution, and that
Article I, Section 8, did not require the courts to find
that a defendant had also “knowingly and voluntarily
waived” his right to refuse to consent to a search. Id. at
527, 738 A.2d at 433. In Cleckley, a police officer
informed the appellant that someone had accused him of
selling drugs. The officer then asked the appellant,
without using pressure or force, if he could “pat him down,”
to which the appellant immediately responded in the
affirmative, stating that he did not possess any drugs.
However, the appellant “visibly possessed in his left hand
a change purse which the officer took and unzipped. Inside
the purse was some crack cocaine and ninety-eight dollars
($98.00).” Id. at 520, 738 A.2d at 428. The appellant filed
a motion to suppress the cocaine, arguing that police
should be required to expressly advise him that he had the
right to refuse a police search.
The appellant acknowledged that the U.S. Supreme Court, in
Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36
L.Ed.2d 854 (1973), had previously determined that the
Fourth Amendment test for voluntariness did not include a
waiver analysis;[fn26] however, he claimed that the
enhanced privacy rights recognized under Page 1205
Article I, Section 8, required adoption of such a
“constitutional waiver” standard because, “by consenting to
a warrantless search, one is waiving the right to be free
from a warrantless search.” Cleckley, 558 Pa. at 521, 738
A.2d at 429. Thus, the appellant argued that, under an
independent state analysis, the test of “voluntariness”
should also include a finding that the subject of the
search “knowingly and intelligently waived his or her right
to refuse to consent.” Id.
After acknowledging the Edmunds methodology as an aid, the
Court began its analysis by distinguishing two Pennsylvania
cases cited by the appellant in support of his argument for
an intelligent waiver.[fn27] It then cited other
Pennsylvania cases “which have found that the protections
of the Fourth Amendment and Article I, Section 8, of our
state constitution are coextensive.”[fn28] Cleckley, 558
Pa. at 525, 738 A.2d at 432.
The Court then noted:
[O]ur prior case law in this area of consensual searches
has been confined to an analysis of the Fourth Amendment.
We have not, however, directly spoken to the issue of
whether Article I, Section 8 of our state constitution
provides greater protection in this area.
Cleckley at 525, 738 A.2d at 432 (citation omitted and
emphasis added). After discussing cases from “sister
states” which have “analyzed specifically whether to adopt
the Schneckloth voluntariness standard as the appropriate
standard under their own state constitutions,” the Court
noted that most of them have “rejected the Page 1206
notion that knowledge of one’s right to refuse consent to a
warrantless search is required under [their state
constitutions], opting instead to follow the federal
voluntariness standard which focuses on the totality of the
circumstances as opposed to any one factor.”[fn29] Id. at
526, 738 A.2d at 432. The Court was unpersuaded by the
appellant’s policy argument that an intelligent waiver
would protect and enhance one’s privacy rights under the
state constitution; it noted, instead, that: “we find no
policy issues unique to Pennsylvania . . . that would cause
us to depart from the federal standard.” Id. at 527, 738
A.2d at 433. Thus, the Court held as follows:
[C]onsideration of all the Edmunds factors leads us to
conclude that the federal voluntariness standard as
enunciated in Schneckloth adequately protects the privacy
rights obtained under Article I, Section 8 of our state
constitution. . . . For all the foregoing reasons, we
conclude that while the Pennsylvania Constitution provides
greater privacy rights than the Fourth Amendment in
certain respects, regarding the test for determining
whether consent was freely and voluntarily given, those
privacy rights are sufficiently protected where the
federal standard of “voluntariness” has been met.
Id. at 528, 738 A.2d at 433 (emphasis added).
In these cases, the Pennsylvania Supreme Court did not find
a compelling reason to provide greater privacy rights
under Article I, Section 8; rather, the Court found state
privacy rights to be sufficiently protected by the Fourth
Amendment of the U.S. Constitution.
In this case, Jones has not presented any argument why,
based on the facts of his case, his right under the
Pennsylvania Constitution to be protected from the use of
excessive force “is not sufficiently protected” by the
Fourth Amendment protections against the use of excessive
force.[fn30] Unlike cases in which the individuals had not
alleged facts which would constitute a violation of the
Fourth Amendment, arguably, here, Jones has alleged in his
complaint facts which, if true, could constitute a
violation of the Fourth Amendment. Therefore, unlike the
cases cited by Jones in which Pennsylvania Constitutional
rights were not sufficiently protected by the Fourth
Amendment, Jones has not shown that here, on these facts,
his rights against governmental use of excessive force
under Article I, Section 8 are not sufficiently protected
by the Fourth Amendment. We have found that here, the
protections are coextensive. Therefore, Jones has not shown
that there is a compelling reason for the Court to depart
from the federal standard, and provide greater protection
under the Pennsylvania Constitution. Page 1207
We must now determine whether this Court must create a
cause of action for monetary damages for a violation of
Article I, Section 8 of the Pennsylvania Constitution, by
the government’s use of excessive force in light of our
determination that his rights against the use of excessive
force in Article I, Section 8 are sufficiently protected by
the Fourth Amendment.[fn31] [fn32] Page 1208
B. Determining Whether A New Cause of Action for Money
Damages Must be Provided for Violation of the
Pennsylvania Constitution
To date, neither Pennsylvania statutory authority, nor
appellate case law has authorized the award of monetary
damages for a violation of the Pennsylvania Constitution.
See, e.g., Robbins v. Cumberland County Children and Youth
Services, 802 A.2d 1239, 1251 (Pa.Cmwlth. 2002) (en banc)
(commenting that “[n]either party has briefed the difficult
issue of whether there exists a direct right of action for
money damages against government officials for violations
of [Article I, Section 1 of] the Pennsylvania Constitution,
and our research has not uncovered any case where such a
cause of action was recognized.”)[fn33] The trial court did
allow a Page 1209 monetary remedy here, relying
predominantly upon an interpretation of Article I, Section
8, as always providing greater protection to litigants than
the Fourth Amendment, and requiring a remedy separate and
distinct from its federal counterpart. The court noted that
Jones’ claim was similar to that permitted under the Fourth
Amendment of the U.S. Constitution pursuant to the Supreme
Court’s holding in Bivens, and that its decision was
consistent with those of many state and federal courts
facing similar issues. The trial court also relied on the
“open courts” language in Article I, Section 11 of the
Pennsylvania Constitution[fn34] as authorizing a damages
remedy for constitutional violations. Jones urges us to
affirm the trial court’s decision allowing him to pursue
his cause of action for monetary damages. We must,
therefore, evaluate the authority upon which Jones and the
trial court relied for judicially creating a new cause of
action under the Pennsylvania Constitution.[fn35] Page
1210
1. Bivens and its progeny
The trial court cited Bivens, in which the Supreme Court
first created a “constitutional tort” and permitted a
petitioner to recover damages for a violation of the Fourth
Amendment. Bivens alleged that his arrest and seizure
involved excessive force by federal agents, and violated
the Fourth Amendment’s protections from unreasonable search
and seizure. Had it not been the Federal Bureau of
Investigation, but state law enforcement officials, that
had entered his home, Bivens would have had a cause of
action under Section 1983 of the Civil Rights Act of 1871,
42 U.S.C. § 1983, for violation of his civil rights.
Section 1983 provides:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State . . . subjects,
or causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof to
the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to
the party injured in an action at law, suit in equity, or
other proper proceeding for redress. . . .
42 U.S.C. § 1983.
To establish a prima facie case under 42 U.S.C. §
1983, a plaintiff must allege two elements: (1) the action
occurred “under color of state law”; and (2) the action is
a deprivation of a constitutional right or a federal
statutory right. See, e.g., Parratt v. Taylor, 451 U.S.
527, 535, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981). Because
the violation in Bivens did not occur under color of state
law, but under federal law, it was not within the specific
language of Section 1983. Nonetheless, the Bivens Court
relied on well-settled doctrine “that where legal rights
have been invaded, and a federal statute provides for a
general right to sue for such invasion, federal courts may
use any available remedy to make good the wrong done.”
Bivens, 403 U.S. at 396, 91 S.Ct. 1999 (quoting Bell v.
Hood, 327 U.S. 678, 684, 66 S.Ct. 773, 90 L.Ed. 939
(1946)). The federal statute, Section 1983, provided for a
general right to sue for a violation of the Fourth
Amendment in this situation; however, it did not provide a
remedy for violations by federal officials. The Court,
therefore, expanded the remedy available under Section 1983
to address the wrong done by the federal officers. With
that approach, the Bivens Court required the cause of
action to meet the statutory requirements of Section 1983.
It provided this cause of action only because there was no
other adequate federal legislative or administrative
remedy, and there were “no special factors counseling
hesitation in the absence of affirmative action by
Congress.” 403 U.S. at 396, 91 S.Ct. 1999.
Following the Bivens case, the Court issued only two
decisions which applied the rationale in Bivens to extend
liability: Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264,
60 L.Ed.2d 846 (1979) (allowing action Page 1211 against
federal officer for violation of Fifth Amendment for sex
discrimination against a congressional employee), and
Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d
15 (1980) (allowing action against federal officer for
violation of Eighth Amendment for failure to provide proper
medical attention to a federal inmate). However, since the
time the Carlson opinion was issued, the Supreme Court has
“consistently refused to extend Bivens liability to any new
context or new category of defendants.” Corr. Servs. Corp.
v. Malesko, 534 U.S. 61, 68, 122 S.Ct. 515, 151 L.Ed.2d 456
(2001). “[T]he Court has relied on the two factors
identified in Bivens to prevent its extension: the very
existence of `apparent alternative remedies’ is itself a
`special factor [] counselling hesitation.'” Briscoe v.
Potter, 355 F.Supp.2d 30, 38 (D.D.C. 2004) (citing
Schweiker v. Chilicky, 487 U.S. 412, 423, 108 S.Ct. 2460,
101 L.Ed.2d 370 (1988)), affirmed, 2005 U.S.App. LEXIS
24040 (D.C. Cir. Nov. 7, 2005). In addition to the
existence of available alternate remedies, other factors
the Court has evaluated have been whether the remedy is a
more appropriate subject for legislative determination, and
what the fiscal impact of a new remedy would be.
For example, in Bush v. Lucas, 462 U.S. 367, 103 S.Ct.
2404, 76 L.Ed.2d 648 (1983), the Supreme Court declined to
create a new non-statutory damages remedy where
comprehensive procedural and substantive policies already
provided meaningful remedies. In Bush, a federal aerospace
engineer alleged he had been demoted for publicly
criticizing his employer, the National Aeronautics and
Space Administration, in violation of the First Amendment.
He sought damages, pursuant to a Bivens action, for the
emotional distress he suffered during his ordeal. The Court
refused to create a cause of action, in large part, because
of the “elaborate, comprehensive scheme,” including
administrative and judicial procedures, which were in place
to protect federal civil servants. While acknowledging that
the available administrative remedies did not “provide
complete relief for the plaintiff,” id. at 388, 103 S.Ct.
2404, the Court cautioned that:
The question is not what remedy the court should provide
for a wrong that would otherwise go unredressed. It is
whether an elaborate remedial system that has been
constructed step by step, with careful attention to
conflicting policy considerations, should be augmented by
the creation of a new judicial remedy for the
constitutional violation at issue. That question obviously
cannot be answered simply by noting that existing remedies
do not provide complete relief for the plaintiff.
Importantly, the Supreme Court was “convinced that Congress
is in a better position to decide whether or not the public
interest would be served by creating [the remedy
requested].” Id. at 390, 103 S.Ct. 2404.
In 1988, the Court again refused to extend Bivens relief
to Social Security recipients whose benefits had been
terminated improperly in violation of the Due Process
Clause. Chilicky, 487 U.S. at 428-29, 108 S.Ct. 2460. The
Court agreed with the plaintiffs that “suffering months of
delay in recovering the income on which one has depended
for the very necessities of life cannot be fully remedied
by the `belated restoration of back benefits.'” Id. at 428,
108 S.Ct. 2460. However, the Court held that because
Congress “has addressed the problems created by . . .
wrongful termination of disability benefits . . . [and] . .
. is the body charged with making the inevitable
compromises required in the design of a massive and complex
welfare benefits program . . .”, id. at 429, 108 S.Ct.
2460, it had no legal basis upon which to create a cause of
action when Congress had decided Page 1212 not to do so.
Id.; see also Malesko, 534 U.S. at 69, 122 S.Ct. 515
(“[Chilicky] rejected the claim that a Bivens remedy should
be implied simply for want of any other means for
challenging a constitutional deprivation in federal court.
It [does] not matter . . . that `[t]he creation of a Bivens
remedy would obviously offer the prospect of relief for
injuries that must now go unredressed'”) (quoting Chilicky,
487 U.S. at 425, 108 S.Ct. 2460).
As recently as 1994, the Supreme Court further limited the
Bivens holding in Fed. Deposit Ins. Corp. v. Meyer, 510
U.S. 471, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994), by refusing
to imply a damages action directly against federal
agencies. It reasoned that, unlike in Bivens, there were
“special factors counselling hesitation” in the creation of
such a remedy, including a “potentially enormous financial
burden for the Federal Government.” Meyer, 510 U.S. at 486,
114 S.Ct. 996. The Court also noted that “decisions
involving `federal fiscal policy’ are not ours to make,”
and left it to Congress “to weigh the implications of such
a significant expansion of Government liability.” Id.
In this case, the City is considered a local governing
body which, under Monell v. Dep’t of Social Services of
City of New York, 436 U.S. 658, 690-91, 98 S.Ct. 2018, 56
L.Ed.2d 611 (1978), can be sued directly under Section 1983
for monetary relief.[fn36] If Jones can establish the
allegations in his Complaint, i.e., that (1) the City used
excessive force against him, and (2) such force was
executed pursuant to a policy statement, ordinance,
regulation, or decision that was officially adopted or
promulgated, or, if the excessive force occurred pursuant
to “custom,” the City could be liable under Section 1983
for the monetary damages he seeks. The remedy, however,
would be under Section 1983, for violation of the Fourth
Amendment of the Federal Constitution, and not for a
violation of the Pennsylvania Constitution.
The existence of an apparent alternative remedy is a
“factor counseling hesitation.” Chilicky, 487 U.S. at
421-23, 108 S.Ct. 2460.[fn37] Here, that alternative remedy
is not derived from the Pennsylvania Constitution, but is,
instead, based upon a violation of the Federal
Constitution. This fact highlights a concern underlying the
trial court’s opinion: whether a right under the
Pennsylvania Constitution can only be vindicated by a
remedy created under the Pennsylvania Constitution. Because
the trial court found that the protection against
governmental use of excessive force is broader under the
Pennsylvania Constitution, the court also found that a
remedy under the Federal Constitution would not have been
sufficient to protect that right.
In this case, however, after careful evaluation of the
facts in this case, we determined that the protection is
not broader under Article I, Section 8, and that the rights
are sufficiently protected by the Federal Constitution. The
remedy for monetary damages under Section 1983 for
violation of the Fourth Amendment is, therefore, an
alternative remedy. Whether an alternative remedy is
adequate cannot be determined simply by evaluating whether
it provides complete relief for the plaintiff. Bush, 462
U.S. at 388, 103 S.Ct. 2404; Provens v. Stark County Bd. of
Mental Retardation & Dev. Disabilities, Page 1213 64 Ohio
St.3d 252, 594 N.E.2d 959, 965 (1992). An alternative
remedy may be considered adequate even if it does not
provide Jones “a complete remedy.” See Bush. Here, even
though the remedy is for violation of the federal
constitution, we do not believe this remedy “should be
augmented by the creation of a new judicial remedy for the
constitutional violation at issue.” Id., 462 U.S. at 388,
103 S.Ct. 2404.[fn38] Therefore, the existence of this
alternative remedy for Jones weighs very heavily against
creating a new cause of action for monetary damages.
Another important factor, which weighs heavily against our
creating a private right of action for monetary damages, is
that, unlike in Bivens, there is no state statute similar
to Section 1983, that already provides for a general right
to sue for a constitutional violation. We believe that a
decision to create a cause of action for damages for a
constitutional violation, in the first instance, is more
appropriate for the legislature, as did the courts in, for
example, Bush, 462 U.S. at 390, 103 S.Ct. 2404, and Meyer,
510 U.S. at 486, 114 S.Ct. 996. The legislature is in a
much better position to analyze and address the diverse
policy considerations involved:
First, by defining elements, defenses, and immunities to
the cause of action, a statutory scheme can foreshorten
years of trial-and-error rule making in the appell[ate]
courts. . . . Second, because most persons and
organizations subject to constitutional standards
presumably desire to be law-abiding, they deserve such
guidance as will permit them to conform their conduct to
constitutional expectations. A remedial statute . . . can
guide planning and training and also provide the legal
incentive sometimes needed for institutional reform.
Third, the legislative process obviously permits greater
participation by parties likely to be directly affected,
perhaps resulting in more sensible and workable rules.
Fourth, the legislative process performs a unique
educative function that can never be duplicated by the
world of judicial review. . . .
Friesen, Recovering Damages, supra, at 1284.[fn39]
Another factor which weighs against the creation of a
civil cause of action is the potential financial burden for
state, local and municipal government entities. See Meyer,
510 U.S. at 485-86, 114 S.Ct. 996 (1994) (“special factors
counseling hesitation” include the “potentially enormous
financial burden for the Federal Government” if damages
action directly against Page 1214 federal agencies are
permitted). Exposing state and local municipalities to
monetary damages for the alleged use of excessive force in
the transaction of their duties, in the absence of a
defined statutory scheme, would result in other adverse
consequences effecting governmental functions. Without a
statute or a description of the conduct that is actionable,
municipalities cannot predict the parameters of the cause
of action. This concern was not foremost in Bivens because
there was a federal statute, Section 1983, and interpretive
case law, which described the conduct that was actionable
and limited it to situations where the municipal action
alleged to be unconstitutional “implemented or executed a
policy statement, ordinance, regulation, or decision
officially adopted and promulgated by that body’s officers”
or was shown to comprise a “governmental `custom’ even
though such a custom has not received formal approval.”
Monell, 436 U.S. at 690-91, 98 S.Ct. 2018.[fn40] In other
words, municipalities were liable only where there was an
action pursuant to official municipal policy, custom or
practice. However, Pennsylvania does not have a statute
similar to 42 U.S.C. § 1983. Unaccompanied by any
parameters or standards, creation of a state Bivens-type
remedy as proposed here could “have a chilling effect on
the zeal with which [municipal bodies] undertake their
responsibilities.” See Kelley Prop. Dev., Inc. v. Town of
Lebanon, 226 Conn. 314, 627 A.2d 909, 924 (1993).
In addition, we note that, in the factual situation
presented here, there exists little legal authority from
other states for the creation of a remedy.[fn41] As stated
in Chilicky, Page 1215 487 U.S. at 421-22, 108 S.Ct. 2460
“[t]he absence of statutory relief for a constitutional
violation . . . does not by any means necessarily imply
that courts should award money damages. . . .” In fact, the
Court stated: “We therefore reject[] the claim that a
Bivens remedy should be implied simply for want of any
other means for challenging a constitutional deprivation in
federal court.” Id. at 425, 91 S.Ct. 1999. Thus, Bivens and
its progeny do not, in this situation, require the creation
of a cause of action for monetary damages under the
Pennsylvania Constitution.
2. Open Courts Provision of Pennsylvania Constitution
Article I, Section 11 of the Pennsylvania Constitution,
contains several components which are referred to as the
open courts provision, the remedies provision and the
immunities provision.[fn42] [fn43] Article I, Section 11
provides:
All courts shall be open; and every man for an injury
done him in his lands, goods, person or reputation shall
have remedy by due course of law, and right and justice
administered without sale, denial or delay. Suits may be
brought against the Commonwealth in such manner, in such
courts and in such cases as the Legislature may by law
direct.
The remedies portion of the provision is contained in the
first sentence and provides that every person shall have a
remedy for injury done to his person. Jones’ argument and
the trial court’s decision rely, in large part, on this
portion of Article I, Section 11, and are implicitly
dependant on the premise that a “remedy” necessitates a
monetary damages award, and one that must derive from the
Pennsylvania Constitution.
However, Jones does have a remedy under the Federal
Constitution for monetary damages and can pursue them in
state court. States, as well as federal Page 1216 courts,
have jurisdiction over claims brought pursuant to Section
1983. Howlett By and Through Howlett v. Rose, 496 U.S. 356,
110 S.Ct. 2430, 110 L.Ed.2d 332 (1990). “Federal law is
enforceable in state courts . . . because the Constitution
and laws passed pursuant to it are as much laws in the
States as laws passed by the state legislature.” Id. at
367, 110 S.Ct. 2430.
Furthermore, monetary damages are only one type of remedy
that might be available for a violation of Article I,
Section 8.[fn44] Other remedies, such as declaratory or
prospective injunctive relief, could provide a remedy.
While such remedies might not provide Jones “complete
relief,” see Bush, 462 U.S. at 388, 103 S.Ct. 2404, they
are, nonetheless, remedies under the Pennsylvania
Constitution.
“The common law has always evolved to meet changing
circumstances and should continue to do so. It is quite
another thing to suggest that the open courts clause
requires a remedy [or, for that matter, a particular
remedy] for every right. . . .” Jonathan M. Hoffman, By the
Due Course of Law: The Origins of the Open Courts Clause of
State Constitutions, 74 Or. L.Rev. 1279, 1317 (1995). For
these reasons, we hold that the open courts provision does
not require the creation of a cause of action for monetary
damages here.
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