Administrative Officers' Tort Liability

Case law on tort liability of public officers and employees is much more interesting than one might expect on the basis of abstract contemplation. The traditional common-law notion that an employee should, as against the employer, bear the ultimate responsibility for his negligence has been exposed as seriously unrealistic in a holding by a unanimous Supreme Court; the decision concerning the government employee is potentially applicable to corporate employees. The many holdings that officers are not liable for deliberate and malicious torts are based on the intriguing view that justice cannot be done when malice is proved, without opening the door to unjustified charges that conscientious officers have acted maliciously. Settled law that police officers are personally liable for false arrest and related torts is in process of becoming unsettled, under the leadership of the California Supreme Court, and the reasons in favor of a basic change seem impressive.

The law of torts involving excess of jurisdiction is still trying to rid itself of an unsound push given it by Justice Holmes in 1891, and to some extent it is succeeding. Especially fascinating is the rise and partial decline, during the decade from 1944 to 1954, of a literal interpretation of an 1871 federal statute, the Civil Rights Act. The present study reaches the somewhat surprising conclusion that some of the principal points made by Professor Jennings, in an excellent 1937 article1 which has been widely influential, are out of line with the case law, and that these particular aspects of the case law are probably sound.