Local Government and Constitutional Torts: In the Georgia Courts

The concept of governmental immunity from civil responsibility has long troubled many. An ingredient of this country's common law heritage, the concept nevertheless yields the epitome in philosophic faceoffs. On the one hand, we inherently disavow governmental divinity: we subscribe to a rule-of-law demand that government restores what it destroys. On the other hand, we recognize that government's essential mission is unique and involuntary: we understand that a strictly private-sector accounting may well imperil government's public performance. Traditionally, neither position has completely prevailed, and legal history unfolds a striking account of accommodation. None of the accounts is more striking than that originating with the United States' Forty-Second Congress, a legislature operating against the immediate background of the Civil War. That Congress, on April 20, 1871, enacted legislation casting civil liability upon "persons" who, under state auspices, deprive others of federally granted rights. In this remarkable fashion, the "Civil Rights Act of 1871 " amalgamated state tort law and violations of the Federal Constitution. In 1978, more than a century after the statute's enactment, the United States Supreme Court abruptly applied it to local governments. Since that decision, "constitutional torts" have assumed high profile in efforts to jettison local government immunity. These efforts proceed in all states in both federal and state courts. Georgia local governments have thus now experienced almost twenty years of "constitutional tort" litigation. The time is appropriate, therefore, for appraising that litigation's impact upon the state's traditional local government tort immunity. Because such appraisals typically emphasize federal law, state cases are often neglected. This Article strives to remedy that neglect by marking the "constitutional tort occasion" in the Georgia appellate courts.