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 officers (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. Jones claimed the Officers' actions violated his right against unreasonable seizure under Article I, Section 8 of the Pennsylvania Constitution. The City filed a Motion for Summary Judgment. 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. 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 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.

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 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), the Pennsylvania legislature's grant of immunity under 42 Pa.C.S. § 8541 serves to bar any State constitutional claims asserted against the City. 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.

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), 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. 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. AnalysisA. Determining The Scope of the Right Under Pennsylvania'sConstitution

"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 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:

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.

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, 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).

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: 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.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 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. 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.

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).

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."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.

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."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. 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 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.

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 HodariD. 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.

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. However, we disagree 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.

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 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 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; however, he claimed that the enhanced privacy rights recognized under 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. 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."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 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."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. 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.

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.

B. Determining Whether A New Cause of Action for Money DamagesMust be Provided for Violation of the PennsylvaniaConstitution

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.") The trial court did allow a 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 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.

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 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 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. 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. 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, 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. 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.

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 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. 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. As stated in Chilicky, 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. 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 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. 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.

III. Conclusion

Our analysis, thus, leads us to the conclusion that the judicial creation of a new cause of action for monetary damages for the City's alleged violation of Article I, Section 8 of the Pennsylvania Constitution, is not required in this case. We do not minimize the trial court's concerns, which we share, regarding the importance of protecting the constitutional rights of Pennsylvania citizens that are specifically promised to each citizen under the Pennsylvania Constitution. We appreciate the difficulty in balancing the constitutional protections that are essential to our freedom. Under the facts in this case, however, there is no evidence that the protection against the use of excessive force in Article I, Section 8, is broader than the Fourth Amendment. Because the same test would be applied here, to protect the same interest, under both Federal and State Constitutions, the protections are coextensive and Jones' right to be free from governmental use of excessive force is protected by the Federal Constitution as it would be under the Pennsylvania Constitution. Importantly, unlike in Bivens, there is no state statute which generally provides for a right to sue for this violation. There are many factors which counsel hesitation against the courts creating a new monetary remedy, where a remedy already exists, without benefit of legislative action.

Consequently, we hold that, in this case, there is no separate cause of action for monetary damages for the use of excessive force in violation of Article I, Section 8 of the Pennsylvania Constitution. The trial court order is reversed as to the City of Philadelphia, and summary judgment is granted for the City.

Judge FRIEDMAN dissents.

ORDER

NOW, January 25, 2006, the order of the Court of Common Pleas of Philadelphia County in the above-captioned matter is hereby reversed.