Private Law Theory

ABSTRACT
AV Dicey characterised the principle of equality as the heart of the rule of law: ‘With us every official, from the Prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen’. In Commonwealth jurisdictions such as Canada, the idea that law enforcement authorities may be liable under ordinary tort law for using excessive force is quite unremarkable. There is no presumptive immunity from civil liability when officers violate an individual’s common law or constitutional rights. Injurious actions are justified only if lawful.

In the United States, by contrast, there is nothing ordinary about law enforcement civil liability. Instances of excessive force by law enforcement officers are principally viewed as implicating constitutional – not common law – rights. A public law conception of law enforcement has led to government entities and officers benefitting from an array of absolute and qualified immunities from suit at the federal, state, and local levels. These doctrines notoriously shield US law enforcement authorities from ordinary liability.

This paper explores how the principles of equality and immunity shape civil rights of action against law enforcement authorities in Canada and the United States. It highlights the role of private law in holding such authorities to account for excessive use of force. Analysing government action through the lens of ordinary law moderates the allure of wrapping government in immunities and privileges. Separating government liability from the ordinary law risks placing government and its officers above the law.

Beswick, Samuel, Equality Under Ordinary Law (November 9, 2023), Supreme Court Law Review, volume 1 (3d), 2024 (forthcoming).