Binette v. Sabo

Opinion

PALMER, J.

The sole question in this case, which comes to us upon our grant of certification from the United States District Court for the District of Connecticut;² Binette v. Sabo, Docket No. 3:96CV00179 (PCD) (D.C. Conn. August 22,1996); is whether, in the circumstances presented, the Connecticut constitution gives rise to a private cause of action for money damages stemming from alleged violations of article first, §§ 7 and 9,³ of our state constitution. We answer the certified question in the affirmative.

The record certified by the District Court contains the following facts. The plaintiffs, Joseph A. Binette and Janet Binette, residents of the city of Torrington, initiated this action in the Superior Court for the judicial district of Litchfield seeking compensatory and punitive damages against the defendants, Mahlon C. Sabo, the Torrington police chief, and Anthony A. Languell, a Torrington police officer. The complaint alleges that on December 3,1994, the defendants entered the plaintiffs’ home without permission or a warrant. According to the complaint, Sabo threatened Janet Binette with arrest and imprisonment and pushed her, causing her to fall against a wall and over a table. The complaint also alleges that, outside the plaintiffs’ home, Sabo repeatedly slammed Joseph Binette’s head against a car and, further, that Languell, in the course of arresting Joseph Binette, struck him on the head and kicked him while he was lying on the ground experiencing an epileptic seizure.

The complaint contains twenty-two counts, four of which purport to state a cause of action directly under the Connecticut constitution. Specifically, counts three and four of the complaint allege that Sabo and Languell, respectively, violated Joseph Binette’s rights under article first, §§ 7 and 9, of the Connecticut constitution, and counts sixteen and seventeen allege that Sabo and Languell, respectively, violated Janet Binette’s rights under article first, § 7, of our state constitution. The complaint also contains counts alleging common-law torts, including assault and battery, intentional infliction of emotional distress, negligent infliction of emotional distress, and wrongful arrest. In addition, the complaint alleges violations of 42 U.S.C. § 1983 (1994).⁴

Upon motion of the defendants, the case was removed to the United States District Court for the District of Connecticut. The defendants subsequently filed a motion to dismiss the four counts seeking damages under the Connecticut constitution on the ground that those counts fail to state a legally cognizable claim. The District Court, acknowledging that this court has never addressed the question of whether our state constitution gives rise to a damages action in the circumstances presented, denied the defendants’ motion without prejudice and certified the following question to us: “Do [the] plaintiffs have a cause of action for damages for the injuries alleged in the [t]hird, [f]ourth, [s]ixteenth, and [seventeenth [c]ounts?”⁵ We agreed to answer the question posed by the District Court.

The plaintiffs contend that we should recognize a damages remedy directly under article first, §§ 7 and 9, of the state constitution in the circumstances of this case. The plaintiffs posit two theories in support of this claim. First, they contend that the open courts provision of our state constitution, article first, § 10,⁶ guarantees them the right to bring a state constitutional damages claim because a common-law action for violations of rights akin to those protected under article first, §§ 7 and 9, existed prior to the adoption of our constitution in 1818.⁷ Alternatively, the plaintiffs maintain that we should create a state constitutional cause of action 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). We reject the plaintiffs’ argument under the open courts provision of our state constitution, but we conclude that the plaintiffs are entitled to bring a claim under article first, §§ 7 and 9, for the policy reasons articulated in Bivens.

I

The plaintiffs assert that article first, § 10, of the state constitution guarantees them the right to bring a claim directly under article first, §§ 7 and 9. Specifically, the plaintiffs, relying on dicta in Kelley Property Development, Inc. v. Lebanon, 226 Conn. 314, 330-33, 627 A.2d 909 (1993), contend that they are entitled to bring such an action because a damages remedy existed prior to the adoption of our constitution in 1818 for violations of rights that were viewed as fundamental at that time and which are substantially similar to those protected under article first, §§ 7 and 9.⁸ We disagree.⁹

Our resolution of the plaintiffs’ claim requires a brief review of our article first, § 10 jurisprudence, which derives from the seminal case of Gentile v. Altermatt, 169 Conn. 267, 363 A.2d 1 (1975), appeal dismissed, 423 U.S. 1041, 96 S. Ct. 763, 46 L. Ed. 2d 631 (1976). “We generally have held that article first, § 10, prohibits the legislature from abolishing or significantly limiting common law and certain statutory rights that were redressable in court as of 1818, when the constitution was first adopted, and which were ‘incorporated in that provision by virtue of being established by law as rights the breach of which precipitates a recognized injury . . . .’ Gentile v. Altermatt, [supra, 286] . . . .” (Citation omitted.) Moore v. Ganim, 233 Conn. 557, 573-74, 660 A.2d 742 (1995). The legislature is precluded, therefore, from abolishing or substantially modifying any such right unless it enacts a reasonable alternative to the enforcement of that right. Id., 574; Kelley Property Development, Inc. v. Lebanon, supra, 226 Conn. 331; Gentile v. Altermatt, supra, 286-87. Article first, § 10, however, does not itself create new substantive rights but, instead, protects access to our state’s courts. Moore v. Ganim, supra, 573; Sanzone v. Board of Police Commissioners, 219 Conn. 179, 194-95, 592 A.2d 912 (1991). With these principles in mind, we turn to our decision in Kelley Property Development, Inc.

In that case, the plaintiff owners of certain real property sought recovery against the town of Lebanon and its planning and zoning commission under the due process clause of the state constitution, article first, § 8, for alleged improprieties by the commission in its rejection of the property owners’ subdivision application. The property owners in Kelley Property Development, Inc., relying solely on the nonabrogation principle embraced by Gentile, claimed that, because a damages action to redress the violation of rights analogous to due process rights existed at common law prior to 1818, the open courts provision ensured the continued existence of that remedy through a direct cause of action under article first, § 8. Kelley Property Development, Inc. v. Lebanon, supra, 226 Conn. 331. Without expressing a view as to whether Gentile supported their claim under the open courts provision, we concluded that the property owners in Kelley Property Development, Inc., had failed to establish that a damages action for the violation of rights similar to due process rights existed at common law in 1818 and, consequently, that they had not satisfied the constitutional principle that they themselves had espoused. Id., 333.

The plaintiffs in this case claim that because they, in contrast to the property owners in Kelley Property Development, Inc., can establish that a damages action to redress rights analogous to the constitutional rights that they claim were violated by the defendants existed at common law prior to 1818; see footnote 8 of this opinion; they have satisfied the test that we applied in Kelley Property Development, Inc., and, therefore, are entitled to bring a claim for damages directly under the state constitution. Because, however, we were not required to consider the merits of the constitutional principle advanced by the plaintiff property owners in Kelley Property Development, Inc., and, in fact, did not do so, we are not bound to accept that principle for purposes of this case.

More importantly, however, we reject the assumption upon which that proposed principle rests, namely, that it necessarily follows from our holding in Gentile. On the contrary, our determination in Gentile that article first, § 10, limits the power of the legislature to abrogate or modify rights extant at common law prior to 1818; Gentile v. Altermatt, supra, 169 Conn. 286; bears no direct relation to the much different question of whether the plaintiffs constitutionally are entitled to bring a claim directly under the state constitution. Put another way, the doctrine that, under article first, § 10, the legislature may not diminish pre-1818 common-law or statutory rights without enacting reasonable alternatives; see id.; does not necessarily imply, as the plaintiffs and amicus assume, that article first, § 10, embodies a private cause of action for pre-1818 “fundamental” common-law rights.

Moreover, neither the plaintiffs nor the amicus curiae has sought to explain how the principle that we applied but did not adopt in Kelley Property Development, Inc., may be gleaned from our article first, § 10 jurisprudence.¹⁰ Because we can discern no necessary nexus between our holding in Gentile and its progeny, on the one hand, and the plaintiffs’ contention that they are entitled to bring a state constitutional damages action by virtue of article first, § 10, on the other, and because the plaintiffs have not sought to articulate any such nexus, we reject their claim under the open courts provision.¹¹

II

The plaintiffs also claim that we should recognize a common-law cause of action under 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, supra, 403 U.S. 388.¹² We agree.

A

In Kelley Property Development, Inc. v. Lebanon, supra, 226 Conn. 334 n.26, we assumed without deciding that we had the power to create a damages action under our state constitution. Today, we hold that we possess such authority. It cannot be doubted that we have the inherent power to recognize new tort causes of action, whether derived from a statutory provision; see, e.g., Mead v. Burns, 199 Conn. 651, 663, 509 A.2d 11 (1986) (creating damages action under Connecticut Unfair Trade Practices Act for violations of Connecticut Unfair Insurance Practices Act); or rooted in the common law. See, e.g., Sheets v. Teddy’s Frosted Foods, Inc., 179 Conn. 471, 480, 427 A.2d 385 (1980) (recognizing tort of wrongful discharge); Urban v. Hartford Gas Co., 139 Conn. 301, 307, 93 A.2d 292 (1952) (recognizing torts of intentional and negligent infliction of emotional distress). Moreover, in Bivens, the United States Supreme Court concluded that federal courts possess the power to create a private damages action directly under the federal constitution; Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, supra, 403 U.S. 395-97; and the great majority of state courts that have considered the question have recognized their authority to do so under their state constitutions. See discussion of foreign court decisions in part II B of this opinion.

Furthermore, support for the creation of a constitutional tort cause of action also may be found in the common-law antecedents to our state constitutional prohibitions against unreasonable searches and seizures. See, e.g., Grumon v. Raymond, 1 Conn. 39 (1814) (damages awarded against magistrate for issuance of general warrant); Palmer v. Allen, 5 Day (Conn.) 193 (1811) (damages awarded against United States marshal for arresting debtor without sufficient legal authority); Burlingham v. Wylee, 2 Root (Conn.) 152 (1794) (damages awarded against public official for issuing warrant without jurisdiction); Stoddard v. Bird, 1 Kirby (Conn.) 65 (1786) (damages awarded against officer for executing arrest without lawful authority); see 1 Z. Swift, A System of the Laws of the State of Connecticut (1795) p. 181 (“[i]f a man be illegally restrained of his liberty, an action of trespass will lie to recover damages”). Finally, the Restatement (Second) of Torts expressly acknowledges the judiciary’s inherent authority to create a state constitutional remedy: “When a legislative [or constitutional] provision protects a class of persons by proscribing or requiring certain conduct but does not provide a civil remedy for the violation, the court may, if it determines that the remedy is appropriate in furtherance of the purpose of the legislation and needed to assure the effectiveness of the provision, accord to an injured member of the class a right of action, using a suitable existing tort action or a new cause of action analogous to an existing tort action.” 4 Restatement (Second), Torts § 874A (1979); id., comment (a); see Kelley Property Development, Inc. v. Lebanon, supra, 226 Conn. 344 (Borden, J., dissenting) (“[i]t would be incongruous to hold that our constitution is a drier source of private rights than the federal constitution or our own statutes”); id., 355 (Berdon, J., concurring in part and dissenting in part) (“[i]f the legislature has not provided a remedy or if the remedy is not reasonably adequate ... in view of the facts of a particular case, a private cause of action is constitutionally available to right the wrong”). In the absence of any persuasive argument or authority to the contrary, we conclude that we possess the inherent authority to create a cause of action directly under the Connecticut constitution.

B

We turn now to the plaintiffs’ claim that we should recognize a Bivens-like cause of action in the circumstances of this case. In Bivens, the United States Supreme Court concluded that a “violation of [the fourth amendment’s prohibition against unreasonable searches and seizures] by a federal agent acting under color of his authority gives rise to a cause of action for damages consequent upon his unconstitutional conduct.”¹³ Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, supra, 403 U.S. 389. Observing that, “where 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’; (internal quotation marks omitted) id., 392; the court stated that “damages have been regarded as the ordinary remedy for an invasion of personal interests in liberty.” Id., 395. In declining to “treat the relationship between a citizen and a federal agent unconstitutionally exercising his authority as no different from the relationship between two private citizens”; id., 391-92; the court; explained that “power, once granted, does not disappear like a magic gift when it is wrongfully used. An agent acting — albeit unconstitutionally — in the name of the United States possesses a far greater capacity for harm than an individual trespasser exercising no authority other than his own." (Emphasis added.) Id., 392. In recognition of the special harm likely to result from unlawful police conduct, and notwithstanding the availability of a state common-law remedy, the court, refusing to take an “unduly restrictive view of the Fourth Amendment’s protection against unreasonable searches and seizures by federal agents”; id., 391; expressly rejected the defendants’ contention that the plaintiff “may obtain money damages to redress [the unconstitutional] invasion [of his] rights only by an action in tort, under state law, in the state courts.”¹⁴ Id., 390.

In considering the plaintiffs claim, the court in Bivens also observed that Congress had not provided another remedy, equally effective in Congress’ view, nor had it prohibited an award of damages. Id., 396-97. Moreover, the court discerned no “special factors counselling hesitation” in the absence of affirmative Congressional action. Id., 396. Finally, the court rejected the defendants’ contention that damages should be permitted only if they were necessary to enforce the fourth amendment. Id., 397. Reiterating the frequently quoted passage from Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803), that “ ‘[t]he very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury,’ ” the court concluded that, under the circumstances, the plaintiff had stated a cause of action for damages directly under the fourth amendment. Bivens v. Six Unknown Named Federal Agents of Federal Bureau of Narcotics, supra, 403 U.S. 397.

In the decade alter Bivens, the United States Supreme Court also has recognized constitutional tort actions for violations of rights protected under the fifth and eighth amendments to the United States constitution. See, e.g., Carlson v. Green, 446 U.S. 14, 17-23, 100 S. Ct. 1468, 64 L. Ed. 2d 15 (1980) (allowing damages action against federal prison officials for violations of eighth amendment prohibitions against cruel and unusual punishment, notwithstanding availability of damages under Federal Tort Claims Act, where no special factors counseled hesitation and Congress had neither prohibited damages nor expressly provided another, equally effective remedy); Davis v. Passman, 442 U.S. 228, 245-48,99 S. Ct. 2264, 60 L. Ed. 2d 846 (1979) (permitting damages action for violation by Congressman of fifth amendment due process guarantee in context of alleged wrongful discharge of employee, where Congress had not precluded damages, equitable relief would be unavailing, and fact that official was Congressman, while special factor counseling hesitation, was not sufficient to defeat claim). More recently, however, the court has “ ‘responded cautiously to suggestions that Bivens remedies be extended into new contexts.’ ” Federal Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 484, 114 S. Ct. 996, 127 L. Ed. 2d 308 (1994), quoting Schweiker v. Chilicky, 487 U.S. 412, 421, 108 S. Ct. 2460, 101 L. Ed. 2d 370 (1988). In particular, the court, in recognition of the principle of separation of powers, has been reluctant to create a federal constitutional damages action where Congress implicitly has expressed a preference for an alternative remedy. For example, the court has declined to allow a. Bivens remedy for an alleged wrongful deprivation of social security benefits; Schweiker v. Chilicky, supra, 423; or for an alleged violation of a federal employee’s first amendment rights; Bush v. Lucas, 462 U.S. 367, 388, 103 S. Ct. 2404, 76 L. Ed. 2d 648 (1983); because Congress had enacted a comprehensive legislative scheme providing meaningful remedies for those violations¹⁵ even though the remedial legislation did not afford complete relief to the plaintiff. See Schweiker v. Chilicky, supra, 425; Bush v. Lucas, supra, 388. The court also has refused to recognize a Bivens action in cases involving the military, concluding that “the unique disciplinary structure of the Military Establishment and Congress’ activity in the field constitute ‘special factors’ which dictate that it would be inappropriate to provide enlisted military personnel a Bivens-type remedy against their superior officers.” Chappell v. Wallace, 462 U.S. 296, 304, 103 S. Ct. 2362, 76 L. Ed. 2d 586 (1983); see United States v. Stanley, 483 U.S. 669, 684, 107 S. Ct. 3054, 97 L. Ed. 2d 550 (1987) (disallowing Bivens-type actions by military personnel for injuries sustained in course of activity incident to military service). We emphasize, however, that although the United States Supreme Court has been unwilling to create a constitutional damages remedy in cases where Congress already has provided a remedy or where other “special factors” militate against doing so; see McCarthy v. Madigan, 503 U.S. 140, 151, 112 S. Ct. 1081, 117 L. Ed. 2d 291 (1992) (“[w]e have recognized that a Bivens remedy does not lie in two situations: (1) where Congress has provided an equally effective alternative remedy and declared it to be a substitute for recovery under the Constitution, and (2) where, in the absence of affirmative action by Congress, special factors counsel hesitation”); the court has not retreated from its core holding in Bivens. See, e.g., Farmer v. Brennan, 511 U.S. 825, 835-47, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994) (discussing what constitutes “deliberate indifference” for purposes of analyzing eighth amendment Bivens claim); McCarthy v. Madigan, supra, 144—56 (holding that plaintiff not required to use prison system’s internal grievance procedures before bringing eighth amendment Bivens action).

Drawing to varying degrees on the reasoning of Bivens, courts in a number of states have recognized damages remedies under their state constitutions. Many of these courts have utilized the analytical framework adopted by Bivens and its progeny, in some cases supplemented by factors not expressly raised in Bivens. See, e.g., Gay Law Students Assn. v. Pacific Telephone & Telegraph Co., 24 Cal. 3d 458, 475, 595 P.2d 592, 156 Cal. Rptr. 14 (1979) (damages action for violation of equal protection provision, citing Bivens); Newell v. Elgin, 34 Ill. App. 3d 719, 722-24, 340 N.E.2d 344 (1976) (damages action for illegal search and seizure, citing Bivens); Moresi v. Dept. of Wildlife & Fisheries, 567 So. 2d 1081, 1091-93 (La. 1990) (same, relying on framers’ intent, English common law, and Bivens); Widgeon v. Eastern Shore Hospital Center, 300 Md. 520, 525-34, 479 A.2d 921 (1984) (recognizing existence of common law action for violations of search and seizure and due process violations, citing English common law, Magna Carta, and Bivens); Strauss v. State, 131 N.J. Super. 571, 575-78, 330 A.2d 646 (1974) (damages action for due process violation, citing Bivens); Brown v. State, 89 N.Y.2d 172, 177-83, 674 N.E.2d 1129, 652 N.Y.S.2d 223 (1996) (damages action for violations of search and seizure and equal protection provisions, relying on Bivens and English common-law antecedents); Corum v. University of North Carolina, 330 N.C. 761, 781-85, 413 S.E.2d 276 (1992) (recognizing cause of action for violation of free speech provision, citing Bivens, but leaving choice of remedy to trial court); Bott v. DeLand, 922 P.2d 732, 737-40 (Utah 1996) (damages action for violation of constitutional rights by prison officials, relying on Bivens, framers’ intent and Magna Charta). Other courts have created damages actions without citation to Bivens. See, e.g., Walinski v. Morrison & Morrison, 60 Ill. App. 3d 616, 619-20, 377 N.E.2d 242 (1978) (damages action for equal protection violation, relying on framers’ intent); Smith v. Dept. of Public Health, 428 Mich. 540, 544, 410 N.W.2d 749 (1987) (damages action against state for constitutional violations may be recognized in appropriate cases).

Courts in some states have rejected a Bivens-type action in the cases before them, but expressly or implicitly have left the door open to recognizing such a remedy in other circumstances. See, e.g., Dick Fischer Development No. 2, Inc. v. Dept. of Administration, 838 P.2d 263, 268 (Alaska 1992) (denying damages for due process violation where other administrative remedies available); Board of County Commissioners v. Sundheim, 926 P.2d 545, 549-53 (Colo. 1996) (same, where judicial review of administrative decision and relief pursuant to 42 U.S.C. § 1983 available); Rockhouse Mountain Property Owners Assn., Inc. v. Conway, 127 N.H. 593, 597-601, 503 A.2d 1385 (1986) (denying damages for equal protection and due process violations, where other administrative remedies available); Provens v. Board of Mental Retardation & Developmental Disabilities, 64 Ohio St. 3d 252, 255-61, 594 N.E.2d 959 (1992) (same with respect to violation of free speech provision); Shields v. Gerhart, 163 Vt. 219, 227-37, 658 A.2d 924 (1995) (declining damages action for free speech violation because of legislatively created remedies); Old Tuckaway Associates Ltd. Partnership v. Greenfield, 180 Wis. 2d 254, 268-72, 509 N.W.2d 323 (App. 1993) (denying action for due process violation because plaintiffs failed to establish deprivation of constitutional magnitude). Finally, at least two courts have concluded that certain provisions of their state constitutions do not give rise to a Bivens-type cause of action. See Hunter v. Eugene, 309 Or. 298, 303-304, 787 P.2d 881 (1990) (creation of private right of action for damages for governmental violations of nonself-executing provisions of constitution is task properly left to legislature); Beaumont v. Bouillion, 896 S.W.2d 143,150 (Tex. 1995) (no historical or common-law justification for inferring direct cause of action under free speech and assembly clause).

In this case, the plaintiffs ask us to recognize a damages action under article first, §§ 7 and 9, of our constitution for the reasons set forth in Bivens. In support of their claim, they emphasize the factual similarity of this case to Bivens and the absence of any statutory remedy under Connecticut law. The defendants, in reliance on our decision in Kelley Property Development, Inc. v. Lebanon, supra, 226 Conn. 334-38, rejecting a Bivens-type damages claim, counter that the absence of any other potential remedy is a necessary prerequisite to our creation of a claim directly under the state constitution. The defendants further contend that, because the plaintiffs have remedies both under state common law and under 42 U.S.C. § 1983, we should decline to create a damages action under the state constitution. We agree with the plaintiffs.

In Kelley Property Development, Inc., the plaintiffs claimed that the federal Bivens line of cases supported their claim for damages directly under the due process provisions of our state constitution. Kelley Property Development, Inc. v. Lebanon, supra, 226 Conn. 338. We reviewed Bivens and its progeny, observing that “[i]n its current configuration, the Bivens line of . . . cases . . . appears to require a would be Bivens plaintiff to establish that he or she woúld lack any remedy for alleged constitutional injuries if a damages remedy were not created. It is no longer sufficient under federal law to allege that the available statutory or administrative mechanisms do not afford as complete a remedy as a Bivens action would provide.” (Emphasis added.) Id., 337-38. In light of the administrative appeal remedy available to the plaintiffs in Kelley Property Development, Inc., we concluded that the Bivens line of cases did not persuasively support their claim for a state Bivens-type cause of action, stating that, “as a general matter, we should not construe our state constitution to provide a basis for the recognition of a private damages action for injuries for which the legislature has provided a reasonably adequate statutoiy remedy.” (Emphasis added.) Id., 338-39.

In evaluating the plaintiffs’ claim, we note, first, that in the present adjudication — as was the case in Kelley Property Development, Inc. — Bivens and its progeny serve only as a guide. Because we are considering a claim under our state constitution, those federal court cases, based on the federal constitution, are not determinative.

Next, we note that Kelley Property Development, Inc., impheating as it did the doctrine of separation of powers, more closely resembled the later cases in the Bivens line; see, e.g., Schweiker v. Chilicky, supra, 487 U.S. 412; Bush v. Lucas, supra, 462 U.S. 367; than it did Bivens and its earlier progeny. See Carlson v. Green, supra, 446 U.S. 14; Davis v. Passman, supra, 442 U.S. 228. Indeed, in refusing to recognize a state Bivens-type action in Kelley Property Development, Inc., we expressly relied on the “principle of separation of powers and its requirement for judicial deference to legislative resolution of conflicting considerations of public policy.”¹⁶ Kelley Property Development, Inc. v. Lebanon, supra, 226 Conn. 339. In contrast to the circumstances that gave rise to our resolution of the plaintiffs’ claim in Kelley Property Development, Inc., the context presented by this case is virtually identical to that of Bivens: the legislature has neither prohibited the creation of a constitutional tort action to remedy an unlawful search and seizure, nor has it crafted a meaningful alternative remedy for the constitutional violation.

Furthermore, we agree with the fundamental principle underlying the United States Supreme Court’s decision in Bivens, namely, 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.” Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, supra, 403 U.S. 392; see id., 409 (Harlan, J., concurring) (“[t]he injuries inflicted by officials acting under color of law . . . are substantially different, in kind [from those inflicted by private parties]”). The difference in the nature of the harm arising from a beating administered by a police officer or from an officer’s unconstitutional invasion of a person’s home, on the one hand, and an assault or trespass committed against one private citizen by another, on the other hand, stems from the fundamental difference in the nature of the two sets of relationships. A private citizen generally is obliged only to respect the privacy rights of others and, therefore, to refrain from engaging in assaultive conduct or from intruding, uninvited, into another’s residence. A police officer’s legal obligation, however, 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. In order to discharge that considerable responsibility, he or she is vested with extraordinary authority. Consequently, when a law enforcement officer, acting with the apparent imprimatur of the state, not only fails to protect a citizen’s rights but affirmatively violates those rights, it is manifest that such an abuse of authority, with its concomitant breach of trust, 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.¹⁷

We also agree with the Bivens court that the availability of other nonstatutory remedies, without more, does not defeat a claim under Bivens.¹⁸ A contrary conclusion would require us to ignore the important distinction between the tortious misconduct of one private citizen toward another, on the one hand, and the violation of a citizen’s constitutional rights by a police officer, on the other.¹⁹

We are persuaded, therefore, that the compelling policy considerations favoring the creation of a constitutional tort in Bivens apply with equal force to this case. Using the analytical factors set forth in Bivens and its progeny as a guide, we first reiterate that our legislature has not prohibited an award of damages for violations of article first, § § 7 and 9, nor has it otherwise expressed its preference for an alternative statutory or administrative remedy. Furthermore, the defendants have identified no special considerations that counsel against recognizing a state Bivens-type claim in the circumstances of this case, nor do we discern any.

Thus, the critical factors that persuaded us to reject a state Bivens-type remedy in Kelley Property Development., Inc., are absent here. First, for the reasons we previously have articulated, recognition of a state Bivens-type remedy in the circumstances of this case reasonably cannot be characterized as an unwarranted intrusion into the pohcy-making authority of the legislature. Second, in Kelley Property Development, Inc. v. Lebanon, supra, 226 Conn. 342, we were reluctant to impose constitutional tort liability on the defendant members of the town planning and zoning commission because, as private citizens, “they might not be able to predict accurately what conduct would be found to violate the state constitution.” Moreover, we expressed the concern that creation of a Bivens-type remedy in the circumstances of that case could “have a chilling effect on the zeal with which [the planning and zoning commission members undertook] their responsibilities.” Id. In contrast, police officers are public employees who are expected — indeed, required — to comport themselves in accordance with constitutional standards.²⁰ Third, we observed that to the extent that the dispute in Kelley Property Development, Inc., was the product of political differences, it was “preferable that such a dispute ... be resolved not by litigation but within designated political channels: zoning commissions, town boards and other local political institutions.” Id., 343. This consideration clearly is inapposite to this case.

Finally, we expressed concern in Kelley Property Development, Inc., that the “availability of a state Bivens action, with its potential for significant monetary awards, would encourage its pursuit by any disappointed zoning applicant whenever a zoning agency denies the sought after permit or application,” thereby burdening municipalities and our court system with additional litigation. Id., 342. By contrast, there is no reason to expect that our decision today will result in a flood of litigation. Indeed, in light of the relief already available under state common law and 42 U.S.C. § 1983 to redress injuries resulting from unreasonable searches and seizures, it is likely that the creation of a damages remedy under article first, §§ 7 and 9, will give rise to few, if any, additional law suits. We do acknowledge, however, that creation of a state constitutional tort remedy undoubtedly will spawn some additional litigation regarding the availability of the remedy and its parameters in the specific circumstances presented, and we do not place this burden lightly on our courts. We believe, though, that any such burden is substantially outweighed by our citizenry’s interest in a remedy that enables them to seek fair and meaningful compensation for injuries arising from deprivations of constitutional magnitude.

In that respect, we emphasize that our decision to recognize a Bivens-type remedy in this case does not mean that a constitutional cause of action exists for evexy violation of our state constitution.

Accord Brown v. State, supra, 89 N.Y.2d 196 (“[o]ur decision [recognizing a Bivens-type cause of action under the New York state constitution] does not hold that every tort by a government employee is actionable, or that those which may be will be actionable under all circumstances”). Whether to recognize a cause of action for alleged violations of other state constitutional provisions in the future must be determined on a case-by-case basis. As in the present case, that determination will be based upon a multifactor analysis. The factors to be considered include: the nature of the constitutional provision at issue; the nature of the purported unconstitutional conduct; the nature of the harm; separation of powers considerations and the other factors articulated in Bivens and its progeny; the concerns expressed in Kelley Property Development, Inc.; and any other pertinent factors brought to light by future litigation.²¹

C

In recognizing the existence of a damages action in the present case, we, like the United States Supreme Court in Bivens, reject an unduly restrictive application of our most fundamental constitutional guarantees. Endorsing the rationale underlying Bivens, we decline, as a matter of policy, to treat the harm that results from the abuse of governmental power as equivalent to that which arises from the commission of a batteiy or trespass by a private citizen. In the absence of compelling countervailing considerations, we believe that a state Bivens-type action is an appropriate remedy for the unique harm likely to result from a violation of article first, §§ 7 and 9, because, unlike the other remedies available to the plaintiffs, a Bivens-type remedy comprehends both the fundamental nature of the rights protected by those constitutional provisions and the special significance of the duty breached by their violation.²² We conclude, therefore, that the plaintiffs have alleged cognizable claims under the Connecticut constitution.²³

The certified question is answered: Yes.

No costs shall be taxed in this court to the parties.

In this opinion CALLAHAN, C. J., and BORDEN, NOR-COTT and MCDONALD, Js., concurred with respect to part I concerning the open courts provision, article first, § 10, of the state constitution, and BORDEN, BERDON and KATZ, Js., concurred with respect to part II concerning the recognition of a cause of action for damages for violations of article first, §§ 7 and 9, of the state constitution.

2 General Statutes § 51-199a provides in relevant part: “(a) This section may be cited as the ‘Uniform Certification of Questions of Law Act.’

“(b) The Supreme Court may answer questions of law certified to it by ... a United States district court when requested by the certifying court if there are involved in any proceeding before it questions of law of this state which may be determinative of the cause then pending in the certifying court and as to which it appears to the certifying court there is no controlling precedent in the decisions of the Supreme Court of this state.

“(c) This section may be invoked by an order of any of the courts referred to in subsection (b) of this section upon the court’s own motion or upon the motion of any party to the cause.

“(d) A certification order shall set forth: (1) The questions of law to be answered; and (2) a statement of all facts relevant to the questions certified and showing fully the nature of the controversy in which the questions arose. . . .”

Practice Book § 4168 contains a substantially similar provision.

3 The Connecticut constitution, article first, § 7, provides: “The people shall be secure in their persons, houses, papers and possessions from unreasonable searches or 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.”

The Connecticut constitution, article first, § 9, provides: “No person shall be arrested, detained or punished, except in cases clearly warranted by law.”

4 Title 42 of the United States Code, § 1983 (1994) provides in relevant part: “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. . . .”

5 In considering the defendants’ motion to dismiss for failure to state a claim, the District Court was required to accept the factual allegations of the complaint as true. See, e.g., Villager Pond, Inc. v. Darien, 56 F.3d 375, 377 (2d Cir. 1995). For purposes of resolving the certified question, we, too, must accept those factual allegations as true.

6 The Connecticut constitution, article first, § 10, provides: “All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.” The current article first, § 10, originally appeared in article first, § 12, of the constitution of 1818.

7 This argument, which was briefed by the amicus curiae, the Connecticut Civil Liberties Union Foundation, was adopted by the plaintiffs at oral argument before this court. The defendants, who also have briefed the issue, make no claim that it was not properly raised. We therefore consider it.

8 For purposes of this appeal, we assume, as the plaintiffs assert, that our pre-1818 common law protected rights analogous to those now contained in article first, §§ 7 and 9; see, e.g., Grumon v. Raymond, 1 Conn. 39 (1814); Stoddard v. Bird, 1 Kirby (Conn.) 65 (1786); and, further, that such rights were considered fundamental prior to 1818.

9 Although we conclude that the plaintiffs may bring an action directly under the state constitution for the policy reasons set forth in Bivens; see part. II of this opinion; we first address 1he plaintiffs’ claim under the open courts provision, article first, § 10. We must do so because if the open courts provision entitles the plaintiffs to bring an action directly under article first, §§ 7 and 9, we would not be required to decide whether to create a Bivens-typo cause of action in the circumstances of this case.

We agree with the concurring and dissenting opinion of Justice Katz that we ordinarily “eschew unnecessary determinations of constitutional questions.” (Internal quotation marks omitted.) Stamford Hospital v. Vega, 236 Conn. 646, 663, 674 A.2d 821 (1996). We generally have applied this rule, however, when we have been able to decide a case either on the basis of an established, common-law principle; see id.; or in reliance on a statutory provision. See, e.g., DeBeradinis v. Zoning Commission, 228 Conn. 187, 195, 635 A.2d 1220 (1994). This case presents neither such alternative. In concluding, under the rationale of Bivens, that the plaintiffs have stated a damages claim directly under article first, §§ 7 and 9, of our state constitution, we do not rely on existing state law. Rather, we today create a new tort action not heretofore recognized by this court. Moreover, in so doing, we are required to address an issue that itself raises questions of constitutional dimension, namely, whether we have the authority to create a damages remedy under the state constitution and, if so, whether invocation of that authority in this case comports with principles of separation of powers. Additionally, we believe that consideration of the plaintiffs’ open courts provision claim also is warranted to clarify the import of our analysis under that provision in Kelley Property Development, Inc. In such circumstances, we are notpersuaded that it is appropriate to avoid the open courts provision claim raised by this appeal. Finally, nothing precludes us from revisiting the decision we reach today under the open courts provision if, in some future case, we are presented with convincing reason to do so.

In this connection, we emphasize that, contrary to the assumption of Justice Katz in her concurring and dissenting opinion, we do not reject the proposition that article first, § 10, may, under appropriate circumstances, embody a private cause of action for pre-1818 “fundamental” common-law rights. Our analysis is more narrow. We simply conclude that, contrary to the assumption of both the plaintiffs and the amicus, neither Gentile v. Altermatt, 169 Conn. 267, 363 A.2d 1 (1975), appeal dismissed, 423 U.S. 1041, 96 S. Ct. 763, 46 L. Ed. 2d 631 (1976), nor Kelley Property Development, Inc., properly understood, establishes or necessarily implies that proposition, and that neither the plaintiffs nor the amicus has offered an analysis— beyond their shared assumption — to establish it. Thus, we leave the question of the validity of the proposition to a case in which it is fully analyzed, rather than merely assumed.

10 In addition, our review of the briefs submitted by the plaintiffs in Kelley Property Development, Inc., reveals that they, too, contain no explanation purporting to demonstrate why the constitutional principle articulated in Gentile supports the proposition that a direct constitutional action exists under article first, § 10, to vindicate fundamental rights.

11 We note, moreover, that at least two commentators have criticized our holding in Gentile as an unwarranted extension of the reach of our state constitution’s open courts provision. See, e.g., W. Horton, The Connecticut State Constitution (1993) p. 69; R. Byron, “Open Courts and Vested Rights,” 64 Conn. B.J. 308, 321 (1990). Although we express no view regarding the merits of this commentary, it bears mention only insofar as it counsels against an unduly expansive interpretation of Gentile.

12 The plaintiffs’ claims under article first, §§ 7 and 9, “sound in constitutional tort. ... A constitutional tort is any action for damages for violation of a constitutional right against a government or individual defendants. Constitutional tort claims were first recognized after the Civil War when Congress authorized civil damage actions against those ‘who, under color of [s]tate law or custom, have deprived others of [federal] constitutional rights .... Those statutes [are] now codified in 42 USC § 1981 et seq. . . .” (Citations omitted.) Brown v. State, 89 N.Y.2d 172, 177-78, 674 N.E.2d 1129, 652 N.Y.S.2d 223 (1996).

13 In Bivens, the plaintiff had filed a damages claim in federal District Court directly under the fourth amendment alleging that federal narcotics agents, acting under claim of federal authority, had entered his apartment without a warrant, arrested him without probable cause in full view of his wife and children, threatened his family with arrest, thoroughly searched the premises, and used unreasonable force in arresting and detaining him. Thereafter, the plaintiff was taken to a federal courthouse where he was questioned, processed, and subjected to a visual strip search. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, supra, 403 U.S. 389. The District Court had dismissed the action, and the Court of Appeals had affirmed the judgment of dismissal. 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).

14 The defendant federal agents in Bivens had acknowledged that the plaintiff was entitled to bring an action against them, under state common law, in state court. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, supra, 403 U.S. 390. The defendants also acknowledged that if the United States Supreme Court upheld the dismissal of the plaintiffs complaint in federal court, and if he then chose to commence a state common law action against them in state court, they intended to exercise their right to remove the action to federal court for determination of the case, on the basis of state law, in a federal forum. Id., 391 and n.4. They maintained, however, that the fourth amendment did not provide an independent basis for a damages claim but, rather, served merely “to limit the extent to which the [defendants] could defend the state law tort suit by asserting that their actions were a valid exercise of federal power . . . .” Id., 390-91.

15 See McCarthy v. Madigan, 503 U.S. 140, 151-52, 112 S. Ct. 1081, 117 L. Ed. 2d 291 (1992) (“[i]nteipretingthe ‘special factors’ exception in Schweiker v. Chilicky, [supra, 487 U.S. 425], and in Bush v. Lucas, [supra, 462 U.S. 388], the Court found the Bivens remedy displaced because Congress had legislated an elaborate and comprehensive remedial scheme”).

16 Thus, as we stated in Kelley Property Development, Inc. v. Lebanon, supra, 226 Conn. 342-43, the “existing statutory remedy [available to the plaintiffs] strikes a proper balance.”

17 In Ms concurring and dissenting opimon, CMef Justice Callahan cites to Virgo v. Lyons, 209 Conn. 497, 498-502, 551 A.2d 1243 (1988), and State v. DeFusco, 224 Conn. 627, 620 A.2d 746 (1993), in support of Ms contention 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.” See part IA of the concurring and dissenting opimon of CMef Justice Callahan. We disagree that either Virgo or DeFusco militates against recogmzing a cause of action under the state constitution in the circumstances of tMs case. Although we noted in Virgo that the interests protected by the fourth amendment are “similar to those protected in common law tort actions”; (emphasis added) Virgo v. Lyons, supra, 502; we neither were presented with, nor did we consider, the altogether different question of whether a violation of constitutional magmtude may give rise to greater harm than that wMch may result from the commission of a common-law tort.

State v. DeFusco, supra, 224 Conn. 627, similarly provides no support for the argument that we should reject the plaintiffs’ claims under article first, §§ 7 and 9. In DeFusco, we disagreed with the defendant’s contention that article first, § 7, precluded the warrantless search of Ms trash, placed at the curb. Id., 637-39. In doing so, we observed oMy that “[a] person’s reasonable expectations [of privacy] as to a particular object” reasonably cannot be predicated upon the identity of the intruder. (Emphasis added.) Id., 637. We decline to read DeFusco as standing for the proposition that the harm flowing from an intrusion into a person’s home by a law enforcement officer is no different from the harm that may result from a similar intrusion by a private citizen.

18 The federal statutory remedy available under 42 U.S.C. § 1983 creates no impediment to judicial recogmtion of a damages remedy under article first, §§ 7 and 9. First, because § 1983 provides a remedy for violations of federal law; see Baker v. McCollan, 443 U.S. 137, 146, 99 S. Ct. 2689, 61 L. Ed. 2d 433 (1979); Handley v. Seagoville, 798 F. Sup. 1267, 1271 (N.D. Tex. 1992); state constitutional violations fall outside its remedial purview. Moreover, the protections afforded our citizens under article first, §§ 7 and 9, are broader than those provided under the fourth amendment. See, e.g., State v. White, 229 Conn. 125, 148-49, 640 A.2d 572 (1994) (article first, § 9, requires suppression of lineup identification procedure that has been upheld under federal constitution); State v. Miller, 227 Conn. 363, 377, 630 A.2d 1315 (1993) (article first, § 7, prohibits warrantless search of impounded automobile that would be permissible under federal constitution); State v. Marsala, 216 Conn. 150, 159, 579 A.2d 58 (1990) (good faith exception to exclusionary rule, though recognized under federal constitution, is incompatible with article first, § 7). Finally, the separation of powers doctrine requires us to defer to the public policy choices of our state legislature, and, therefore, that doctrine generally does not serve as a limitation of our common-law authority in cases involving a federal statute.

19 Although in Kelley Property Development, Inc. v. Lebanon, supra, 226 Conn. 340-41 and n.30, we commented, in dicta, that the plaintiffs in that case also might have sought relief by means of a common-law action for intentional interference with a business expectancy, we did not hold that that remedy, standing alone, would have been sufficient to defeat the plaintiffs’ claim for a Bivens-type remedy. We note, moreover, that we have discovered only one case in which a court has refused to create a state Bivens-type action solely because of the availability of an alternative remedy not created by the legislature. See Board of County Commissioners v. Sundheim, supra, 926 P.2d 549-53 (holding that alleged state due process violation in context of zoning decision was sufficiently redressable by means of claim under 42 U.S.C. § 1983 and by judicial review of administrative decisions pursuant to state rule of civil procedure); compare Widgeon v. Eastern Shore Hospital Center, supra, 300 Md. 534-35 (holding that existence of remedies available to plaintiff at common law and under 42 U.S.C. § 1983 did not defeat claim based on constitutional violation).

20 For example, evidence seized by a police officer in violation of our state constitutional protections against illegal searches and seizures is subject to exclusion in a subsequent criminal proceeding. See, e.g., State v. Marsala, 216 Conn. 150, 159-72, 579 A.2d 58 (1990). Moreover, an action under 42 U.S.C. § 1983 may be brought to vindicate a violation of the fourth amendment’s search and seizure provisions which, though not coextensive with the protections afforded under the state constitution; see, e.g, State v. Miller, 227 Conn. 363, 380-87, 630 A.2d 1315 (1993); State v. Geisler, 222 Conn. 672, 682-90, 610 A.2d 1225 (1992); State v. Marsala, supra, 159-60; are analogous thereto.

21 In his concurring and dissenting opinion, Chief Justice Callahan suggests that a necessary conclusion to be drawn from our decision today is that, for purposes of determining whether to recognize a cause of action under the state constitution, some constitutional rights will be deemed “special” and others will not. See part III of the concurring and dissenting opinion of Chief Justice Callahan. The concurring and dissenting opinion misapprehends our holding. We reiterate that, as under Bivens and its progeny, a case-by-case analysis will be required in which the nature of the constitutional provision at issue and the nature of the alleged harm will be important considerations, among others, in determining whether the creation of a cause of action under the state constitution is warranted.

Chief Justice Callahan also states that we have failed to provide “a principled basis” for determining when it may be appropriate to recognize a cause of action arising out of a particular state constitutional provision. See part III of the concurring and dissenting opinion of Chief Justice Callahan. On the contrary, the multifactor analysis that we today have outlined provides just such a basis. See Bush v. Lucas, supra, 462 U.S. 378 (decision whether to recognize cause of action directly under constitution, upon consideration of relevant factors, constitutes “the kind of remedial determination that is appropriate for a common-law tribunal.”).

22 The crux of Chief Justice Callahan’s disagreement with our reliance on Bivens is his conclusion that the court in Bivens drew no distinction between the harm occasioned by an agent’s infringement of fourth amendment rights and the harm occasioned by a private individual’s infringement of common law rights. See part I A of the concurring and dissenting opinion of Chief Justice Callahan. This conclusion, however, is directly contradicted by the plain and unequivocal language that the Bivens court itself used in emphatically rejecting precisely the same assertion that the opinion of Chief Justice Callahan now makes. Thus, as the court stated in Bivens, the defendant federal agents in that case — like the opinion of Chief Justice Callahan in this case — “seek to treat the relationship between a citizen and a federal agent unconstitutionally exercising his authority as no different from the relationship between two private citizens. In so doing, they ignore the fact that power, once granted, does not disappear like a magic gift when it is wrongfully used. An agent acting — albeit constitutionally — in the name of the United States possesses a far greater capacity for harm than an individual trespasser exercising no authority other than his own.” Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, supra, 403 U.S. 391-92.

The obvious and unambiguous import of this language repeatedly and expressly has been recognized. For example, Justice Harlan, in his concurring opinion in Bivens, addressed this precise issue when he observed that ‘‘the Court today properly points out that the type of harm, which officials cam, inflict when they invade protected zones of an individual’s life are different from the types of harm private citizens inflict on one another .... The injuries inflicted by officials acting under color of law, while no less compensable in damages than those inflicted by private parties, are substantially different in kind, as the Court’s opinion today discusses in detail.” (Emphasis added.) Id., 408-409. Courts consistently have characterized the rationale of Bivens in terms nearly identical to those of Justice Harlan. See, e.g., Moresi v. Dept. of Wildlife & Fisheries, supra, 567 So. 2d 1093 (“[T]he underlying policy considerations for ... an action directly under the [Louisiana] state constitution are similar to those supporting the implication of a right of action by the Fourth Amendment. An agent acting— albeit unconstitutionally — in the name of the state possesses a far greater capacity for harm than an individual trespasser exercising no authority other than his own. We may bar the door against an unwelcome private intruder, or call the police if he insists in seeking entrance. But one who demands admission under a claim of state authority stands in a far different position. . . . Indeed, the limitations under ordinary state law for violations of rights by other private citizens argue in favor of a state constitutional remedy. The injuries inflicted by officials acting undercolor of law are substantially different in kind than those inflicted by private parties.” [Citation omitted; emphasis added.]); Albertson’s, Inc. v. Ortiz, 856 S.W.2d 836, 840 (Tex. App. 1993) (“In recognizing a cause of action for damages [under the fourth amendment] the Court [in Bivens] emphasized that the type of harm which governmental officials can inflict is more pernicious than the harm private citizens may inflict on each other-. ‘An agent acting — albeit unconstitutionally — in the name of the United States possesses a far greater capacity for harm than an individual trespasser exercising no authority other than his own.’ [Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, supra, 403 U.S. 392].” [Emphasis added.]);Boíí v. DeLand, supra, 922 P.2d 739 (“[SJtate employees cannot be categorized as purely private individuals because they have a unique capacity to harm, which private individuals do not have. We recognize that injuries inflicted by officials acting under color of law are substantially different in kind than those inflicted by private parties. . . . • The actions of officials are apparently authorized by the law, and an agent acting ... in the name of the state possesses a far greater capacity for harm than an individual trespasser exercising no authority other than his own.” [Citation omitted; emphasis added; internal quotation marks omitted.]). By contrast, the concurring and dissenting opinion of Chief Justice Callahan points to no case law, no commentary, and no other authority to support its unduly narrow interpretation of Bivens, and we are aware of none.

23 The concerns raised by Justice McDonald in his concurring and dissenting opinion are entirely unfounded. First, police officers who engage in constitutionally impermissible conduct already may be sued under 42 U.S.C. § 1983 and, like all other citizens, they also are subject to state common-law claims. It is hardly a startling proposition, therefore, that the police also may be held civilly liable for clear violations of our state constitution. More importantly, however, the egregious misconduct alleged to have occurred in this case is a far cry from the conduct of police officers who, like those depicted by Justice McDonald in his concurring and dissenting opinion, traditionally are shielded from liability, under both state and federal law, for official actions undertaken reasonably and in good faith. See, e.g., Mulligan v. Rioux, 229 Conn. 716, 727-29, 643 A.2d 1226 (1994), on remand, 38 Conn. App. 546, 662 A.2d 153 (1995). Consequently, we emphatically disagree with Justice McDonald’s conclusion that today’s decision creates a Hobson’s choice for the police.