CALLAHAN, C.J. concurring in part and dissenting in part.

With whom NORCOTT and McDONALD, Js., join.

I agree with the conclusion of part I of the majority opinion, in which the majority determines that a cause of action for damages to redress infringements of the rights protected by article first, §§ 7 and 9, of the Connecticut constitution does not exist by virtue of the open courts provision of article first, § 10. I disagree, however, with the majority's creation in part II of a new direct constitutional cause of action for damages. Because the cause of action created by the majority is not capable of providing the plaintiffs with any relief additional to that already available, I believe that its creation is an inappropriate exercise of judicial power. I, therefore, respectfully dissent from the conclusion reached by the majority.

Courts that have confronted the issue of creating a cause of action for damages to redress alleged infringements of a constitutional right generally have based their decisions on some combination of: (1) the reasoning of the United States Supreme Court 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), and its progeny; and (2) the reasoning of § 874A of the Restatement (Second) of Torts. 4 Restatement (Second), Torts § 874A, p. 301 (1979); see, e.g., Kelley Property Development, Inc. v. Lebanon, 226 Conn. 314, 627 A.2d 909 (1993) ( Bivens analysis); Brown v. State, 89 N.Y.2d 172, 674 N.E.2d 1129, 652 N.Y.S.2d 223 (1996) ( Bivens and Restatement analyses). Although citing both Bivens and the Restatement as support, the majority relies primarily on the rationale of the Bivens line of cases for its creation of a cause of action for damages to redress infringements of the rights protected by article first, §§ 7 and 9. By way of reasoning, the majority asserts that: (1) the United States Supreme Court's decision in Bivens to create a damages action to redress infringements of the rights protected by the fourth amendment was based on a distinction between a "special" or "unique" harm occasioned by the infringement of fourth amendment rights by federal agents and the harm occasioned by infringement of common-law rights by private individuals; and (2) this court's determination in Kelley Property Development, Inc., that the Bivens rationale did not support creation of a damages action to redress infringements of state constitutional due process rights was based primarily on the doctrine of separation of powers. I disagree with both of those assertions. In my opinion, neither the Bivens rationale nor the Restatement supports the creation by this court, under the circumstances of this case, of a cause of action for damages to redress infringements of the rights protected by article first, §§ 7 and 9.

I

In Bivens, the plaintiff brought an action against federal narcotics agents in the United States District Court, alleging that the agents had arrested him unlawfully without a warrant or probable cause and that, as a result, he had suffered great humiliation, embarrassment and mental anguish. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, supra, 403 U.S. 389-90; see Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 276 F. Sup. 12 (E.D.N.Y. 1967), aff'd, 409 F.2d 718 (2d Cir. 1969), rev'd, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). In response to the defendants' motion to dismiss, the District Court reasoned that federal officials who exceed the scope of their lawful authority act as private individuals rather than as government agents. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, supra, 276 F. Sup. 15; see Bell v. Hood, 71 F. Sup. 813, 816-17 (S.D.Cal. 1947). Because the fourth amendment to the federal constitution is not applicable to the actions of private individuals, the District Court concluded that the plaintiff had failed to state a cause of action arising under the federal constitution. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, supra, 276 F. Sup. 16. Moreover, the court determined that there was no alternate federal common-law basis; see Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, supra, 403 U.S. 400; or federal statutory basis for the plaintiff's requested relief. See Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, supra, 276 F. Sup. 13-14. Accordingly, the District Court concluded that the plaintiff had not stated a cause of action arising under the constitution or the laws of the United States and that, consequently, the court lacked subject matter jurisdiction over the plaintiff's claim. Id., 16; see also 28 U.S.C. § 1331 (a). The District Court, therefore, granted the defendants' motion to dismiss. In the District Court's view, the federal courts were unable to provide the plaintiff with a remedy for infringements by federal officials of his fourth amendment rights, and the state courts and state common-law causes of action were the only available means by which the plaintiff could seek redress for the alleged violation of his right, under the federal constitution, to be free from unreasonable search and seizure.

The Court of Appeals affirmed the District Court's order dismissing the plaintiff's action, but did so on other grounds. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 409 F.2d 718 (2d Cir. 1969), rev'd, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). In the view of the Court of Appeals, the defendants had acted as government agents rather than as private individuals. Id., 721 ("[t]he fact that the officers were acting in violation of the Fourth Amendment's restraints upon governmental action does not belie the plain fact that they were acting as government officials, and not in a private capacity").

Having concluded that the plaintiff's claim had arisen under the federal constitution and consequently was within the subject matter jurisdiction of the federal courts, the Court of Appeals then considered whether "the constitutional right against unreasonable search and seizure could be enforced by the [federal] courts through the medium of private damage actions." Id. Because "[t]he [fourth] [a]mendment's prohibition against unreasonable search and seizure had its origin in several English cases which were damage actions for trespass"; id.; the court concluded that "the common law action of trespass, administered . . . by the state courts"; id.; was the enforcement medium the drafters of the federal constitution had contemplated. Noting that federal law provides injunctive relief and the exclusionary rule, two remedies that "substantially vindicate the interests protected by the [fourth] [a]mendment"; id., 725; the Court of Appeals declined to create a separate federal damages action. Id. In the court's view, despite "their limited scope," state common-law causes of action were the appropriate vehicles for seeking monetary redress; id.; and the fourth amendment served only to limit the extent to which federal agents could defend themselves in state court by asserting that their actions had been a valid exercise of federal power. See Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, supra, 403 U.S. 390-91.

On appeal to the United States Supreme Court, therefore, the case presented three distinct issues: (1) whether the plaintiff's complaint had presented a federal question and consequently was within the subject matter jurisdiction of the federal courts; (2) whether the fourth amendment only limited the extent to which federal officials could assert an immunity defense in state tort actions, or also gave rise to an independent federal cause of action; and (3) if so, whether money damages were available pursuant to that cause of action.

Noting that the power possessed by federal agents "once granted, does not disappear like a magic gift when it is wrongfully used"; id., 392; the United States Supreme Court first determined that unconstitutional searches and seizures constitute government, rather than private, action, and that the plaintiff's complaint consequently was within the subject matter jurisdiction of the federal courts. Id.; see 28 U.S.C. § 1331 (a).

The United States Supreme Court next considered the defendants' argument that the fourth amendment served only to limit the extent to which federal agents could assert an immunity defense in state tort cases. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, supra, 403 U.S. 390-91. Citing a case that involved an infringement of fourth amendment rights for which there may not have been a viable common-law cause of action, the court noted that "[a]n agent acting — albeit unconstitutionally — in the name of the United States possesses a far greater capacity for harm than an individual trespasser. . . ." Id., 392; see Amos v. United States, 255 U.S. 313, 317, 41 S.Ct. 266, 65 L.Ed. 654 (1921) (consent to a warrantless search did not constitute a waiver of fourth amendment rights). Because "the Fourth Amendment operates as a limitation upon the exercise of federal power regardless of whether the State in whose jurisdiction that power is exercised would prohibit or penalize the identical act if engaged in by a private citizen"; Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, supra, 403 U.S. 392; the court determined that the defendants' view that the fourth amendment served only to limit the defenses available to the federal agents in state common-law actions was "unduly restrictive." Id., 391. Noting that the fourth amendment proscribes certain conduct that is not necessarily prohibited by state common law; id., 393; and that the interests protected by the fourth amendment do not necessarily dovetail with those protected by state common law; id., 394; the United States Supreme Court concluded that "the federal question [presented by the plaintiff's complaint is] not merely a possible defense to the state law action, but an independent claim both necessary and sufficient to make out [a federal] cause of action." Id., 395.

Importantly, it was only after concluding that the plaintiff's complaint had stated a federal question and that the fourth amendment gave rise to an independent federal cause of action, that the United States Supreme Court turned to the issue of whether, in addition to equitable and declaratory relief, a damages remedy should be available in the federal action. Id., 395-96. Specifically, in determining whether a judicially created damages action would be appropriate, the court considered only whether Congress had provided an alternate federal remedy and whether there were other special factors that counseled against making an action for money damages available to the plaintiff. Id., 396-97. It is significant that because there is no general federal common law; see Erie Railroad Co. v. Tompkins, supra, 304 U.S. 64; a federal statute was the only possible alternate basis for federal judicial redress.

A

The majority asserts that the United States Supreme Court's determination that damages should be available was based on a distinction between a special, unique harm occasioned by the infringement of fourth amendment rights by federal agents; see part II of the majority opinion; and the harm occasioned by infringement of common-law rights by private individuals. I disagree.

The United States Supreme Court did not conclude that the harm inflicted by infringements of fourth amendment rights is "special." The court said that federal agents have a " greater capacity for harm"; (emphasis added) Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, supra, 403 U.S. 392; not that federal officials have a capacity for a greater harm. None of the examples the court used contrasting government and private intrusions suggests that the harm suffered in unlawful intrusions by federal officials is qualitatively different from the harm implicated in unlawful intrusions by private individuals. Instead, the examples merely illustrate the basis for the court's conclusion that in addition to limiting the extent to which federal officials may assert defenses in state tort actions, the fourth amendment can give rise to an independent federal claim. Thus, Bivens does not support the majority's conclusion that the injuries that result from unlawful intrusions by government officials are "substantially different in kind" from those that result from unlawful intrusions by private parties.

Moreover, the majority's conclusion that unlawful intrusions by government officials implicate a "special" harm is not supported by either state or federal case law. Both this court and the federal courts have recognized that the injuries that result from the infringement of an individual's fourth amendment rights are no different from those that are redressable pursuant to the common-law causes of action for battery, false arrest and intentional infliction of emotional distress. Virgo v. Lyons, 209 Conn. 497, 498-503, 551 A.2d 1243 (1988) (doctrine of collateral estoppel prevents plaintiff who seeks redress of injuries caused by unlawful intrusion by police officers from bringing separate state common-law action subsequent to litigation of plaintiff's federal constitutional claim; "[b]ecause [a constitutional tort] provides a remedy in the form of damages for actual injuries suffered by reason of a violation of a plaintiff's [ fourth amendment] rights, it follows that the issue of damages for those same injuries cannot be relitigated in a state tort action" [emphasis in original and added]); see Memphis Community School District v. Stachura, 477 U.S. 299, 305-306, 106 S.Ct. 2537, 91 L.Ed.2d 249 (1986); Smith v. Wade, 461 U.S. 30, 34, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983); Carey v. Piphus, 435 U.S. 247, 253-55, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978); see also State v. DeFusco, 224 Conn. 627, 637, 620 A.2d 746 (1993) (explicitly refusing to distinguish, for purposes of article first, § 7, between searches by police officers and searches by private individuals; "[w]e cannot countenance . . . a rule" "that a person may harbor different expectations of privacy . . . as to different classes of intruders").

Furthermore, in subsequent cases in which a plaintiff sought to extend the availability of a Bivens-type remedy to violations of federal constitutional rights other than those protected by the fourth amendment, the United States Supreme Court has not revisited either the government action-private action dichotomy or the existence of a greater capacity for harm. Instead, the court simply has cited to Bivens as the basis for the plaintiff's federal claim before going on to consider whether judicial creation of a direct action for monetary damages was appropriate. The court's determination regarding the availability of a damages remedy has rested solely on the availability of an adequate alternate federal remedy and the existence of special factors that counsel against creating a money damages remedy. See, e.g., Bush v. Lucas, 462 U.S. 367, 374, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983); Davis v. Passman, 442 U.S. 228, 245, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979). The Bivens line of cases indicates, therefore, that in the view of the United States Supreme Court, it is the assertion of federal authority, not any special or unique harm resulting from the unlawful exercise of that authority, that gives rise to the need for a federal tort claim against federal officials for violations of federal constitutional rights.

B

The majority distinguishes the circumstances of the present case from those presented in Kelley Property Development, Inc., by characterizing our conclusion in Kelley Property Development, Inc., that the Bivens rationale did not support creation of a state constitutional due process tort as having been based primarily on the doctrine of separation of powers. See part II of the majority opinion. I disagree with that characterization for the following two reasons. First, it is not accurate. We expressly indicated in Kelley Property Development, Inc., that the existence of a state common-law cause of action capable of providing redress for the plaintiff's injuries is an important factor to be considered in determining whether creation of a constitutional tort would be an appropriate exercise of judicial power. Kelley Property Development, Inc. v. Lebanon, supra, 226 Conn. 340-41 (plaintiff would not necessarily have prevailed even in absence of alternate statutory remedy because common-law tortious interference with business expectancy action was possible alternate source of relief). Second, we did not discuss separation of powers in Kelley Property Development, Inc., until after we had declined, because an alternate form of adequate relief was available to the plaintiff, to create a damages action. Id., 339 ("[t]his conclusion accords with the constitutional principle of separation of powers"). Although our decision in Kelley Property Development, Inc., not to create a constitutional tort accords with the doctrine of separation of powers, in my opinion it cannot fairly be said to have rested on or to have been required by that doctrine.

Narrowly viewing the existence of an alternate statutory remedy solely as a separation of powers issue and reasoning that only a legislatively created remedy should forestall judicial action, the majority concludes that the availability of alternate state common-law relief is of no relevance to the appropriateness of a judicially created state constitutional damages remedy. Here, too, I disagree. The Bivens line of cases indicates that the presence or absence of any alternate federal source of adequate relief is a significant factor to be considered in determining whether a federal constitutional damages remedy should be created. In Davis v. Passman, supra, 442 U.S. 245, for example, the United States Supreme Court cited the lack of any adequate alternate remedy as the basis for its decision to recognize a damages remedy for alleged violations of fifth amendment rights: "For Davis, as for Bivens, it [was] damages or nothing." (Internal quotation marks omitted.) Id., 245. In contrast, in later Bivens-type cases in which some form of alternate federal redress was available, the United States Supreme Court declined to recognize a damages remedy. In Bush v. Lucas, supra, 462 U.S. 367, for example, the court distinguished the circumstances presented in that case from those presented in Bivens, noting that Bush, unlike Bivens, had a civil service remedy available to him. Id., 388 ("[t]he question [before this court, unlike the court in Bivens] is not what remedy the court should provide for a wrong that would otherwise go unredressed"[emphasis added]). The majority nevertheless relies on the United States Supreme Court's omission of the existence of an alternate common-law remedy from the list of situations in which a federal Bivens-type remedy does not lie; see part II of the majority opinion; McCarthy v. Madigan, 503 U.S. 140, 151, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1992); to support its conclusion that the existence of an alternate statutory remedy is relevant only because of the doctrine of separation of powers, and not because if there is an existing federal remedy, the would-be Bivens plaintiff is already able to "seek the protection" of federal law and consequently there is no need to create a federal Bivens-type remedy. I do not believe that the United States Supreme Court's omission of the existence of nonexistent federal common-law remedies from the list articulated in McCarthy provides plausible support for the proposition that the court included statutory remedies only because of the principle of separation of powers.

C

In its current configuration, therefore, the Bivens line of United States Supreme Court cases appears to require a would-be Bivens plaintiff to establish as a threshold matter that he or she would lack an adequate federal remedy if a federal constitutional damages remedy were not created by the court. See Kelley Property Development, Inc. v. Lebanon, supra, 226 Conn. 337-38. By analogy, therefore, in the present case, the Bivens rationale supports creation of a state constitutional damages remedy based on a violation of article first, §§ 7 and 9, only if the plaintiffs would lack an adequate state remedy if such a damages remedy were not created.

Counts three and four of the plaintiffs' complaint allege that the defendants violated the rights of Joseph Binette under article first, §§ 7 and 9, of the state constitution by entering his home without a warrant and by using excessive and unreasonable force against him. The injuries that Joseph Binette attributes to the defendants' allegedly unconstitutional conduct include an epileptic seizure, a concussion, headaches, soft tissue trauma, medical care expenses, legal expenses, damage to his reputation and emotional trauma.

Unlike Bivens, however, Joseph Binette would not have lacked an adequate remedy for those injuries if a constitutional remedy was not created. The complaint states several common-law causes of action that are based on the conduct that he alleges in counts three and four. Relevant to this analysis are count thirteen, which alleges wrongful arrest, counts five and six, which allege assault and battery, and counts nine and ten, which allege intentional infliction of emotional distress. Those common-law causes of action are capable of providing complete redress for the injuries Joseph Binette claims to have suffered as a result of the defendants' alleged violations of his state constitutional rights.

By including a cause of action based on wrongful arrest, Joseph Binette implicitly has acknowledged that state common law is capable of fully redressing his alleged injuries. "False imprisonment, or false arrest, is the unlawful restraint by one person of the physical liberty of another." Green v. Donroe, 186 Conn. 265, 267, 440 A.2d 973 (1982); see Outlaw v. Meriden, 43 Conn. App. 387, 392, 682 A.2d 1112 (1996), cert. denied, 239 Conn. 946, 686 A.2d 122 (1996). "Damages for false imprisonment . . . are not limited to easily determined special damages such as attorney's fees or loss of time from work. Damages are also designed to compensate for intangible injuries such as mental anguish, humiliation, embarrassment, mortification, shame, fear, and damage to reputation." Wochek v. Foley, 193 Conn. 582, 588, 477 A.2d 1015 (1984).

Wrongful arrest, moreover, is not the only common-law cause of action capable of providing full redress. Joseph Binette has raised viable battery and intentional infliction of emotional distress claims as well. In order to recover damages under the theory of battery, he need show only that (1) the defendants' conduct is actionable, (2) the defendants intended that conduct, and (3) the defendants' conduct caused his injuries. W. Prosser W. Keeton, Torts (5th Ed. 1984) § 9, pp. 39-41; see Lombardi v. Groton, 26 Conn. App. 157, 159, 599 A.2d 388 (1991), cert. denied, 221 Conn. 908, 600 A.2d 1361 (1992) (affirming award of damages for, inter alia, battery by police officers); Gutowski v. New Britain, 165 Conn. 50, 53-54, 327 A.2d 552 (1973) (assault and battery action against police officers; compensatory damages awarded for officers' use of excessive force). Furthermore, in order to prevail under the theory of intentional infliction of emotional distress, Joseph Binette must show only that: (1) the defendants should have known that their conduct likely would cause him to suffer emotional distress; (2) the defendants' conduct caused him to suffer severe emotional distress; and (3) the defendants' conduct was extreme and outrageous. See DeLaurentis v. New Haven, 220 Conn. 225, 266-67, 597 A.2d 807 (1991). The seizure that Joseph Binette allegedly suffered as a result of the defendants' conduct is evidence of severe emotional distress, and the defendants' alleged use of clearly excessive force, if believed, is evidence of extreme and outrageous conduct. See Lombardi v. Groton, supra, 160. Thus, Joseph Binette has pleaded three common-law causes of action that are capable of providing complete relief for his alleged injuries.

Like Joseph Binette, Janet Binette would not have lacked an adequate remedy for the injuries she attributes to the defendants' alleged violations of her state constitutional rights if a state constitutional remedy was not created. Counts sixteen and seventeen of the complaint allege that the defendants violated Janet Binette's rights under article first, §§ 7 and 9, of the state constitution by entering her home without a warrant, by threatening her with arrest and imprisonment and by forcefully pushing her, causing her to fall against a wall and over a table. The injuries that Janet Binette attributes to that conduct are mental pain and suffering, fear of injury, anguish, emotional trauma and discomfort.

The complaint states several common-law causes of action that are based on the conduct that Janet Binette alleges in counts sixteen and seventeen. Relevant to this analysis are count eighteen, which alleges assault and battery, and count twenty, which alleges intentional infliction of emotional distress. As noted earlier, those causes of action are capable of fully redressing the injuries that Janet Binette claims to have suffered.

In summary, Connecticut's common law provides both plaintiffs with causes of action that are capable of providing not only adequate, but complete redress for any injuries that they prove are attributable to the defendants' conduct. Accordingly, the rationale of the United States Supreme Court in the Bivens line of cases does not support judicial creation, under the circumstances of this case, of a cause of action for damages based directly on an alleged violation of article first, §§ 7 and 9, of the state constitution.

II

The rationale of § 874A of the Restatement (Second) similarly does not support creation of a constitutional damages action. Section 874A sets forth a two-pronged test for determining if judicial creation of a direct constitutional damages remedy is appropriate: (1) a damages remedy must further the purpose of the constitutional provision; and (2) the remedy must be necessary to assure the effectiveness of the provision. 4 Restatement (Second), supra, § 874A, p. 301.

I do not believe that a judicially created damages remedy is necessary, under the present circumstances, to assure the effectiveness of article first, §§ 7 and 9. As previously discussed, the damages remedy that the majority has created does not provide either of the plaintiffs with any relief to which they would not be entitled at common law. Because it cannot provide additional relief, the constitutional damages remedy is not a meaningful deterrent to future constitutional infringements, and, consequently, it neither furthers the purpose of article first, §§ 7 and 9, nor is necessary to assure their effectiveness. Accordingly, § 874A does not support judicial creation of a cause of action based directly on article first, §§ 7 and 9, of our state constitution in this instance.

III

My objection to the creation, in this case, of a damages action based on article first, §§ 7 and 9, is not founded solely on the lack of support provided by the Bivens line of cases and § 874A of the Restatement (Second). More important, I also believe that its creation is an inappropriate exercise of judicial power for the following reasons.

First, the only way to reconcile the result in Kelley Property Development, Inc., with that reached by the majority is to conclude that although certain constitutional injuries, particularly those arising under article first, §§ 7 and 9, are "special," others, such as those resulting from infringements of the due process protections of the state constitution, are not. I do not agree with that proposition. I reiterate that the distinction the United States Supreme Court recognized in Bivens between infringements of fourth amendment rights and infringements of state common-law rights cannot bear the weight the majority has placed on it. As noted earlier, the court's statement that federal agents possess a "greater capacity for harm"; Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, supra, 403 U.S. 392; was made for the purpose of asserting subject matter jurisdiction over a federal claim, not for the purpose of distinguishing the nature of the injury occasioned by infringement of fourth amendment rights from that of the harm caused by infringement of other legal rights. See S. Bandes, "Reinventing Bivens: The Self-Executing Constitution," 68 So. Cal. L. Rev. 289, 325 (1995) (" Bivens rejected the argument that a [federal] suit by a citizen against a federal agent unconstitutionally exercising his authority is no different from a state law suit between two private parties. It recognized that federal rights are worthy of protection on their own terms.").

Second, the majority concludes that because of the "special" harm occasioned by infringements of article first, §§ 7 and 9, a constitutional tort is needed to effectuate "our citizenry's interest in a remedy that enables them to seek fair and meaningful compensation for injuries arising from deprivations of constitutional magnitude." See part II B of the majority opinion. Implicit in that conclusion is the assumption that the compensation potentially available to the plaintiffs pursuant to common-law causes of action would not constitute "fair and meaningful" redress. The common-law causes of action for false arrest, battery and intentional infliction of emotional distress, however, are capable of providing the plaintiffs with complete monetary compensation for their alleged injuries. The "specialness" that the majority attributes to the injuries that result from a police officer's unconstitutional invasion of a person's home, therefore, must be based on a qualitative, rather than quantitative, difference between those injuries and injuries that result from an unlawful intrusion by a private individual. Attempting to illustrate how the injuries that result from an unlawful invasion by a police officer are "substantially different in kind"; (emphasis added) Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, supra, 403 U.S. 392; from those that result from an unlawful intrusion by a private individual, the majority notes that an unlawful invasion by a police officer is likely to have "a different, and even more harmful, emotional and psychological effect on the aggrieved citizen than that resulting from the tortious conduct of a private citizen." See part II B of the majority opinion. In effect, the majority explains that such injuries are "substantially different in kind" because they are different. I agree that "abuse of [police] authority, with its concomitant breach of trust"; id.; can cause emotional and psychological injuries that are of a greater magnitude than those that normally result from an unlawful private intrusion. I do not agree, however, that the common-law cause of action for intentional infliction of emotional distress is incapable of providing "fair and meaningful" compensation for the increased emotional and psychological injuries that can result from an unconstitutional intrusion by a police officer.

Moreover, the fact that the plaintiffs' injuries allegedly resulted from an infringement of "constitutional magnitude" does not indicate that the damages potentially available to the plaintiffs pursuant to common-law causes of action would not constitute "fair and meaningful compensation." Compensatory damages are designed to enable an aggrieved party to obtain complete compensation for injuries actually caused by an infringement of a legal right, not to enable an aggrieved party to obtain some amorphous compensation for the infringement itself. W. Prosser W. Keeton, Torts, (5th Ed. 1984) § 1, pp. 5-6, § 2, p. 7, and § 4, p. 20. In order to obtain compensatory damages, a plaintiff must establish not only a breach of a legal duty, but also causation and harm. Id., § 7, p. 31. In federal constitutional tort actions, damages are designed to redress injuries caused by deprivations of federal constitutional rights, not to redress the deprivations of such rights. Memphis Community School District v. Stachura, supra, 477 U.S. 307-308. The abstract value of infringement of a constitutional right does not support meaningful compensatory damages. Id., 308-10; Carey v. Piphus, supra, 435 U.S. 253-54; Virgo v. Lyons, supra, 209 Conn. 504. I do not believe, and I have been unable to find any authority for the proposition that a separate action for damages should be available to compensate for the abstract value of an infringement of "constitutional magnitude."

Furthermore, noting that "[a] police officer's legal obligation . . . extends far beyond that of his or her fellow citizens: the officer not only is required to respect the rights of other citizens, but is sworn to protect and defend those rights"; (emphasis in original); the majority concludes that it is "manifest" that a police officer's breach of the officer's constitutional duty implicates a unique harm. See part II B of the majority opinion. The crux of the majority's argument appears to be, therefore, that it is a difference between a police officer's constitutional duty and his or her common-law duty that makes the harm unique. The injury that a person sustains as a result of a tortfeasor's unlawful action, however, is dependent not on the legal appellation or the contours of the duty that has been breached, but on the effect that the breach has had upon the victim. Even if we assume, arguendo, that it is somehow possible to distinguish the actual effect that unlawful conduct has had upon a person solely on the basis of the duty that has been breached, our conclusion in Virgo v. Lyons, supra, 209 Conn. 502, that the interests protected by the fourth amendment are similar to the interests protected by the relevant common-law torts undercuts the majority's reliance on a distinction between those interests to demonstrate how an injury that results from a police officer's unlawful conduct substantially differs, not in magnitude, but in kind, from the injury that results when a private individual engages in identical conduct, thereby giving rise to the need for a constitutional tort. The majority attempts to reconcile its position with our conclusion in Virgo by asserting that the question of whether a police officer's breach of his constitutional duty gives rise to a unique harm is separate and "altogether different" from the question presented in Virgo. We explicitly noted in Virgo, however, that when "`the interests protected by a particular branch of common law torts . . . parallel closely the interests protected by a particular constitutional right' . . . it is appropriate to apply the tort rules of damages directly to the [constitutional claim], thereby compensating the plaintiff for any actual injury he can prove." (Emphasis added.) Id., 505-506. I wonder whether the majority decision augurs the development of an "altogether different" system for determining the damages available, pursuant to the newly created constitutional tort, to redress the unique harm that the majority attributes to a police officer's unconstitutional conduct.

Third, the majority does not provide a workable framework for identifying which constitutional infringements give rise to "special" harms and which do not; nor do I believe that one exists. I cannot comprehend a principled basis for concluding, for example, that the harm that results from either the infringement of the constitutional right to "a public school education that is not substantially impaired by racial and ethnic isolation"; Sheff v. O'Neill, 238 Conn. 1, 24, 678 A.2d 1267 (1996); or the infringement of constitutional free speech rights is less "special" than the harm that results from the infringement of the constitutional right to be free from unreasonable search and seizures. Does the majority decision then portend direct constitutional actions for money damages to redress alleged infringements of those rights?

Fourth, the majority appears to adopt a broad presumption in favor of recognizing constitutional torts to remedy the "special" harms that result from infringements of "constitutional magnitude." See part II B of the majority opinion ("the critical factors that persuaded us to reject a state Bivens-type remedy in Kelley Property Development, Inc., are absent here"). The majority, however, does not provide a principled basis for determining when "critical factors" are sufficiently compelling to overcome that broad presumption. For example, does the possibility that recognition of a constitutional tort might result in significant additional litigation not only support; see Kelley Property Development, Inc. v. Lebanon, supra, 226 Conn. 342; but also justify a decision not to recognize such a tort? In my view, it cannot properly be considered a compelling countervailing consideration. "[L]imitations upon the effective functioning of the courts arising from budgetary inadequacies should not be permitted to stand in the way of the recognition of otherwise sound constitutional principles." Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, supra, 403 U.S. 411 (Harlan, J., concurring). Similarly, does the fact that recognition of a constitutional tort might result in additional avenues of liability not only support; see Kelley Property Development, Inc. v. Lebanon, supra, 342; but also justify a decision not to recognize a damages remedy? I do not believe that it can properly be considered a compelling countervailing consideration. "[I]f financial expense alone were such a factor, then by definition there could never be a Bivens type action for damages because a successful action for damages means financial expense for the defendants." Id., 349 ( Borden, J., dissenting). Further, although the nature of a defendant's official duties may support a decision not to recognize a damages remedy; id., 342; in my opinion, concerns of that nature are more appropriately characterized as issues of immunity rather than as compelling countervailing considerations to constitutional tort liability. See id., 350 ( Borden, J., dissenting). It occurs to me that perhaps we are abandoning the only easily definable, objective "critical factor" militating against a proliferation of constitutional tort claims by allowing such claims even when there are existing common-law actions capable of providing adequate relief.

Having allowed these plaintiffs, who have alternate common-law causes of action capable of providing them with complete redress, a constitutional cause of action that gives them nothing more than symbolic relief, we will, I believe, be hard pressed, under the majority's rationale, to decline to recognize analogous actions to redress infringements of other provisions of our state constitution. "Prudence and sensitivity to the constitutional authority of coordinate branches of government," however, counsel caution in the exercise of judicial authority to fashion remedies for constitutional deprivations. Sheff v. O'Neill, supra, 238 Conn. 46. "In construing the contours of our state constitution, we must exercise our authority with great restraint in pursuit of reaching reasoned and principled results." (Internal quotation marks omitted.) Moore v. Ganim, 233 Conn. 557, 581, 660 A.2d 742 (1995). As a general rule, "[t]he task of evaluating the pros and cons of creating judicial remedies for particular wrongs is a matter for . . . the legislatur[e] . . . ." (Internal quotation marks omitted.) Carlson v. Green, 446 U.S. 14, 36, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980). The majority itself acknowledges that "we ordinarily `eschew unnecessary determinations of constitutional questions'" and that "[w]e generally have applied this rule . . . when we have been able to decide a case either on the basis of an established common-law principle . . . or in reliance on a statutory provision." (Emphasis in original.) See footnote 9 of the majority opinion. As a threshold matter, therefore, I would require any would-be state constitutional tort plaintiffs to establish that neither our statutory nor our common law is capable of providing them with adequate relief. Furthermore, in cases in which our law is not capable of doing so, I would exercise our power to create a damages cause of action only if such an action is necessary to effectuate the constitutional provision at issue. Neither condition has been satisfied in the present case. I, therefore, respectfully dissent, and would answer the certified question in the negative.

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 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.

Accordingly, I disagree with part I of the majority opinion and concur with part II.

KATZ, J., concurring in part and dissenting in part.

I join in part II of the majority opinion but write separately because I disagree with the analysis in part I.

The plaintiffs contend that we should recognize a damages remedy to redress violations of rights protected under article first, §§ 7 and 9, of our state constitution. They advance two alternative bases for a damages remedy: (1) Connecticut common law, prior to 1818, provided damages for the violation of rights that were substantially similar to the constitutional rights they allege were violated and, therefore, according to Kelley Property Development, Inc. v. Lebanon, 226 Conn. 314, 331-33, 627 A.2d 909 (1993), article first, § 10, of the Connecticut constitution incorporates a constitutionally based damages remedy; and (2) we should infer a common-law cause of action from article first, §§ 7 and 9, under the reasoning of 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).

There are two parts to the analysis of the plaintiffs' first claim. The first question is whether our early common law permitted damages actions against government officials for violating rights analogous to those now protected by article first, §§ 7 and 9, of our state constitution. If the answer to that question is yes, the second part of the analysis depends upon whether proper recognition of these fundamental constitutional rights requires that their violation be vindicated directly under the state constitution or whether an alternative common-law or statutory remedy will suffice. The majority recognizes that fundamental rights, which existed at common law prior to 1818, and which were also codified separately in our state constitution under article first, §§ 7 and 9, are directly involved in this case. The majority, however, reaches out to hold that article first, § 10, of the state constitution does not guarantee the plaintiffs the right to bring a claim directly under article first, §§ 7 and 9. I agree with the majority as to the first part of the analysis but would not close the door to recognizing a direct constitutional remedy.

Connecticut's first constitution, adopted in 1818, formally established our governmental structure and included a declaration of rights to safeguard individual liberties. The declaration of rights appeared in article first, §§ 1 through 21, of the 1818 constitution. Article first, §§ 8 and 10, concerning, respectively, searches and seizures and arrests, were identical to their current counterparts, article first, §§ 7 and 9. Connecticut, however, had a declaration of rights and a "constitution," as this term was understood at the time, dating from the first half of the seventeenth century. C. Collier, "The Connecticut Declaration of Rights Before the Constitution of 1818: A Victim of Revolutionary Redefinition," 15 Conn. L. Rev. 87 (1982). This "constitution of government," which was unwritten, incorporated common-law principles and practices, various significant statutes, the Fundamental Orders of 1639, and the Charter of 1662; id., 89; and embodied "the practice and customs of a society that are generally agreed upon as immutable, or at least as not suddenly mutable by a mere General Assembly." W. Horton, "Connecticut Constitutional History 1776-1988" in Connecticut's Four Constitutions (H. Cohn W. Horton eds., 1988) p. 18; see also C. Collier, supra, 89.

During the preconstitutional period, individual rights, including the right to be free from the abuse of governmental power, were highly valued and well protected. Zephaniah Swift, a former chief justice and author of our state's first legal text, noted in 1795 that the right of personal liberty was "sacred and inestimable" and that "without [it] all others [were] of little value. . . ." 1 Z. Swift, A System of the Laws of the State of Connecticut (1795) p. 180. Swift confirmed that governmental power emanated from the people; id., p. 59; and noted, moreover, that "[n]o individual, or body of men, have a discretionary, or arbitrary power to commit any person to prison; no man can be restrained of his liberty . . . or be in any way imprisoned, or confined, unless by virtue of the express laws of the land. These laws are so clear and explicit, that it is in the power of every man to avoid breaking them. . . ." Id., p. 180.

The earliest of these "clear and explicit" laws protecting individual rights was the declaration of rights, which appeared in the preamble to Connecticut's first statutory code, Ludlow's Code of 1650. See C. Collier, supra, 15 Conn. L. Rev. 91-93. Although it was statutory in form, the declaration was "treated by both the legislature and the people as standing above ordinary statutes. The Declaration and supplementary statutes relating to individual rights were grounded in the Connecticut common law and viewed as inviolate." Id., 94; see, e.g., Hall v. Hall, 1 Root (Conn.) 120, 121 (1789) ("no man's person shall be arrested or imprisoned, for any debt . . . if sufficient means of satisfaction can otherwise be lawfully found from his estate . . . but, if no such satisfaction can be found, his person may be arrested and imprisoned"). "Abridgements perpetrated by the government were considered void on their face and courts were to refuse to enforce them." C. Collier, supra, 94; see also State v. Lamme, 216 Conn. 172, 179, 579 A.2d 484 (1990). The declaration of rights changed little from 1650 through 1818, notwithstanding a number of code revisions. C. Collier, supra, 94.

During the thirty years preceding Connecticut's constitution, however, confidence in the common law's ability adequately to safeguard individual rights gradually eroded as post-Revolutionary leaders embraced a different political ideology than had their pre-Revolutionary counterparts. Id., 87. Although in 1787, Connecticut's pre-Revolutionary delegates to the federal constitutional convention opposed a bill of rights, confident that strong state governments would protect individual rights, by 1818, the majority of Connecticut's new generation of leaders recognized the need for constitutional guarantees of individual rights. Id., 95.

Plaintiffs sought protection at common law for individual rights by using traditional common-law forms of pleading because only a limited number of causes of action existed at the time to redress private wrongs. Despite the use of traditional tort nomenclature, both this court and commentators have recognized that these cases were early common-law antecedents of our constitution. One commentator explained that early Connecticut cases reached "`constitutional' results by reference to ordinary common law explication"; E. Peters, "Common Law Antecedents of Constitutional Law in Connecticut," 53 Alb. L. Rev. 259, 262 (1989); and noted that "[t]he common law trappings of the cases undoubtedly explain why the court's opinions resonate in common law terms. Nonetheless, the case law demonstrates a striking resemblance between some of the `constitutional' issues with which we struggle today and some of the `common law' issues with which the court struggled two hundred years ago." Id., 264. Peters cited Grumon v. Raymond, 1 Conn. 39 (1814), as an example of such a case. Although brought as a false imprisonment action, Grumon actually redressed the violation of the right, now given constitutional protection, to be free from unreasonable searches and seizures. E. Peters, supra, 263; see also State v. Oquendo, 223 Conn. 635, 652, 613 A.2d 1300 (1992) (stating that early false imprisonment actions were "common law antecedents of article first, §§ 7 and 9, of our constitution").

As this discussion demonstrates, our early common law permitted damages actions against government officials for violating rights analogous to those now protected by article first, §§ 7 and 9, of our state constitution. Furthermore, these early cases vindicated rights, deeply rooted in our state's past and well protected at common law, which were viewed as fundamental long before they became constitutionally incorporated.

In deciding that the plaintiff may properly bring a state Bivens claim for a violation of article first, §§ 7 and 9, the majority recognizes the fundamental rights at stake in this case, and the special harm likely to result from unlawful police conduct. The majority, quoting Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, supra, 403 U.S. 392, stated that a police officer acting unlawfully in the name of the state "`possesses a far greater capacity for harm than an individual trespasser exercising no authority other than his own.'"

Nevertheless, despite the language in Kelley Property Development, Inc. v. Lebanon, supra, 226 Conn. 333, suggesting that article first, § 10, of the Connecticut constitution incorporates a constitutionally based damages remedy, the majority concludes that the open courts provision contained in article first, § 10, of our state constitution does not ensure the existence of that remedy through a direct cause of action under article first, §§ 7 and 9. I fail to understand why, in light of the majority's decision recognizing a Bivens common-law cause of action under article first, §§ 7 and 9, the majority reaches the plaintiffs' claim under article first, § 10, particularly when to reject the open courts claim, the majority has had to step back from the test we applied in Kelley Property Development, Inc.

The plaintiff in Kelley Property Development, Inc., claimed that, because a common-law damages action existed prior to 1818 to redress the violation of rights analogous to due process rights, article first, § 10, ensured the continued existence of such a damages remedy. Id., 332. We determined, however, that the early cases relied upon by the plaintiffs awarded damages for a statutory violation, rather than "a violation of a fundamental common law principle that we would now characterize as having constitutional significance." Id. We stated that, "[i]n the absence of a clear indication . . . that the damages awards in those cases redressed rights akin to fundamental constitutional rights, we decline to read these cases as establishing a common law precedent for the existence of a constitutional claim for damages. . . ." Id., 333. We concluded that the plaintiff "failed to establish that, in the circumstances of this case, a damages action for the violation of a quasi-constitutional right existed at common law in Connecticut prior to 1818 and thereby became incorporated into the state constitution by virtue of article first, § 10." Id.

In this case, the plaintiffs contend that Kelley Property Development, Inc., stands for the proposition that a damages claim may be brought directly under the state constitution for the violation of state constitutional rights if: (1) our pre-1818 common law awarded damages to vindicate analogous rights; and (2) such rights were understood at the time to be fundamental. The majority disagrees and, indeed, expressly rejects this constitutional principle, concluding that the plaintiffs in the present case have not sufficiently demonstrated why the constitutional principle articulated in 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), supports their ability to bring a claim under the state constitution. Although a majority of the court is not convinced that a direct constitutional action exists under article first, § 10, to vindicate the fundamental rights at issue in this case, I believe it imprudent and unnecessary to close that door.

Although we did not hold explicitly in Kelley Property Development, Inc., that a claim for damages under the state constitution could be brought where both predicates of the test enunciated therein have been satisfied, both our reliance on the open courts provision and our analysis in that case implicitly recognized the existence of a remedy for violations of state constitutional rights. In light of our reliance on Gentile v. Altermatt, supra, 169 Conn. 286-87, and its use of the open courts provision to prevent legislative abrogation of constitutionally incorporated rights, an argument could be made that, under that provision, the legislature has less leeway to modify fundamental rights than it would have with respect to other rights recognized under the common law. Furthermore, just as those rights are entitled to greater protection from legislative intervention than other, less important common-law rights, one could argue that these fundamental rights should be recognized as having an enhanced status by virtue of their incorporation into the state constitution.

Today, the majority recognizes a Bivens common-law cause of action for damages to redress alleged infringements of a constitutional right. Nevertheless, the majority unnecessarily reaches out to close the door on a claim to a direct constitutional action. Our traditional jurisprudence is to decide constitutional issues as a last resort. The majority, however, offers no persuasive reason to depart from our "recognized policy of self-restraint and the basic judicial duty to eschew unnecessary determinations of constitutional questions." Negron v. Warden, 180 Conn. 153, 166, 429 A.2d 841 (1980). This principle generally has been the basis for declining to reach constitutional issues where there have existed alternative nonconstitutional grounds for deciding an appeal. See, e.g., State v. Lopez, 239 Conn. 56, 57 n. 1, 681 A.2d 950 (1996) (violation of declaration against penal interest exception to hearsay rule); State v. Gold, 180 Conn. 619, 639, 431 A.2d 501, cert. denied, 449 U.S. 920, 101 S.Ct. 320, 66 L.Ed.2d 148 (1980) (same); Negron v. Warden, supra, 180 Conn. 166 (violation of Practice Book § 531); State v. Certain Contraceptive Materials, 126 Conn. 428, 434, 11 A.2d 863 (1940) (proceeding unauthorized under search warrant statute). I see no reason in this case to deviate from that policy.

Accordingly, I dissent from the decision reached by the majority on the first issue and concur with its decision on the second issue.

McDONALD, J., concurring in part and dissenting in part.

I concur with Chief Justice Callahan's concurring and dissenting opinion.

The majority opinion's chilling effect on law enforcement officers is unreasonable, dangerous, and obstructs the government's constitutional responsibility to "insure domestic Tranquility" and provide for the public safety. U.S. Const., preamble; see United States v. Kelner, 534 F.2d 1020, 1026 (2d Cir. 1976). Police officers are often called upon, alone and in danger, to make split second decisions to conduct searches to protect the public's safety or their own. They may rely upon United States Supreme Court decisions and yet be forced to pay damages for intricate state constitutional violations. Police officers should not face the choice between being carried by six pall bearers or having a like number of jurors take away their home.