Peters, C. J.

The principal issue in this civil rights appeal is whether the Connecticut constitution affords a monetary remedy for damages to persons whose state due process rights have allegedly been violated by local zoning officials. The plaintiffs, Kelley Property Development, Inc., and John J. Kelley, Sr. (collectively, Kelley), sought compensatory and punitive damages for injuries allegedly resulting from the defendants’2 denial *316of Kelley’s subdivision application. Kelley asserted claims pursuant to 42 U.S.C. § 1983 alleging the defendants’ violation of his federal substantive and procedural due process rights,3 as well as claims pursuant to the state constitution alleging the defendants’ violation of his state substantive and procedural due process rights.4 The trial court, Austin, J., granted summary judgment in favor of the defendants.5 Kelley appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We affirm.

The record of the findings of fact by the trial court and the stipulation of the parties contains the following relevant facts. In September, 1988, Kelley purchased a 573 acre tract of land (property) located in the towns of Lebanon and Colchester. Although the *317commission initially rejected Kelley’s request to meet informally to discuss his development plans, Kelley presented several development proposals to the commission in January, 1989. The commission endorsed a cluster housing proposal, which would require amendment of the subdivision regulations. In February, 1989, Kelley forwarded proposed amended regulations to the commission. In March, 1989, the commission met to discuss the proposed regulations and held a public hearing on them. In April, 1989, Kelley decided to abandon the cluster housing proposal and instead to pursue a more traditional residential subdivision that would accord better with expressed public opinion regarding the development of Kelley’s property.6 In May, 1989, Kelley submitted an “Application For Approval Of A Subdivision Plan.” Kelley’s application included an area of open space that exceeded the commission’s regulatory minimum size requirement. In July, 1989, the commission voted to deny Kelley’s application, but later rescinded that denial when Kelley advised the commission that the denial was null and void because it had been issued before the commission had received a report from the inland wetlands commission. In August, 1989, the commission received a report from its planning consultant regarding the application’s compliance with subdivision regulations and outstanding issues that needed to be resolved before the application could be approved. After holding public hearings on the application in September, 1989, the commission sought a legal opinion from its attorney advising whether property zoned industrial could properly form part of the open space reservation for a residential subdivision. After receiving its attorney’s legal opinion and a letter from Kelley’s attorney expressing disagree*318ment with that opinion, the commission denied Kelley’s application on November 29, 1989, because of an insufficient area of dry land in the proposed open space reservation.7

In December, 1989, Kelley filed a timely zoning appeal from the commission’s denial to the trial court, J. Walsh, J., 8 pursuant to General Statutes § 8-8. On January 14, 1991, Judge Walsh sustained Kelley’s appeal on the ground that the commission’s denial of his application had been an abuse of discretion because the applicable regulation did not permit a distinction between wet and dry land in proposed open space.9 Judge Walsh also determined that the applicable regulation was not reasonably precise and, therefore, could not be used to deny Kelley’s application. Without appealing from Judge Walsh’s decision, the commission approved Kelley’s subdivision application on February 13, 1991.

Kelley thereafter filed this action seeking damages for losses incurred as a result of the delayed approval of his application. In count one of his six count second amended complaint, Kelley alleged that his interest in *319approval of his subdivision application was a property interest protected by the due process clause of the fourteenth amendment to the federal constitution, and that the defendants had violated the substantive guarantees of that provision by, inter alia, intentionally depriving Kelley of fundamentally fair procedures, misleading Kelley, ignoring the advice of consultants and arbitrarily denying his application. Kelley contended that, in light of these substantive due process violations, he was entitled to damages under § 1983. In count two, Kelley claimed damages under § 1983 because of the defendants’ alleged violation of federal procedural due process guarantees in failing adequately to provide notice to Kelley of their actions regarding his application and in committing other procedural irregularities. Count three alleged the violation of Kelley’s federal substantive and procedural due process rights by the commission members and Tytor in their individual capacities and sought punitive damages. Counts four, five and six of the second amended complaint asserted state constitutional claims that essentially mirrored the federal claims alleged in counts one, two and three, respectively.

After the pleadings had been closed, the trial court granted the defendants’ motion for summary judgment on all six counts.10 As to the federal claims, the trial court concluded that Kelley’s claims were insufficient as a matter of law because Kelley did not meet the threshold requirement of possessing a property interest in approval of his subdivision application. As to the state claims, the trial court held that Kelley could not prevail because, even if the state constitution’s due process provision affords broader protection than does the federal constitution’s due process provision, violations of the Connecticut constitution cannot be redressed through a cause of action for damages in the absence of prior statutory or common law recognition of such an action.

*320On appeal, Kelley claims that the trial court improperly: (1) rejected his federal due process claims on the ground that he did not have a protected property interest in approval of his subdivision application; and (2) held that no damages remedy exists for the defendants’ alleged violations of his state constitutional due process rights.11 We disagree with both of these contentions.12

*321I

Kelley first claims that his interest in the approval of his subdivision application was a property interest protected by the federal constitution and, therefore, that the trial court improperly rejected his federal due process claims on the ground that he had no constitutionally protected interest.13 We are not persuaded.

A

This court recently adopted the Second Circuit Court of Appeals’ “clear entitlement” test as a guide to determining whether a civil rights claimant in a land regulation case has stated a due process claim under the federal constitution. See Red Maple Properties v. Zoning Commission, 222 Conn. 730, 738-39, 610 A.2d 1238 (1992), citing RRI Realty Corporation v. Incorporated Village of Southampton, 870 F.2d 911, 915-18 (2d Cir.), cert. denied, 493 U.S. 893, 110 S. Ct. 240, 107 L. Ed. 2d 191 (1989). The “clear entitlement” test mandates *322the possession of a constitutionally protected property interest as a threshold requirement for a successful substantive or procedural federal due process claim.14 See RRI Realty Corporation v. Incorporated Village of Southampton, supra, 915-17; but see Bello v. Walker, 840 F.2d 1124 (3d Cir.), cert. denied, 488 U.S. 851, 109 S. Ct. 134, 102 L. Ed. 2d 107 (1988). If a claimant does not establish a constitutionally protected interest, the due process analysis ceases because no process is constitutionally due for the deprivation of an interest that is not of constitutional magnitude. If, however, a due process claimant does establish a constitutionally protected interest, he or she may then seek to establish other required elements of the due process claim, such as reliance on inappropriate procedures or arbitrary or oppressive conduct. See generally Zinermon v. Burch, 494 U.S. 113, 127-28, 110 S. Ct. 975, 108 L. Ed. 2d 100 (1990) (procedural due process); Daniels v. Williams, 474 U.S. 327, 331-32, 106 S. Ct. 662, 88 L. Ed. 2d 662 (1986) (substantive due process).

The “clear entitlement” test asks whether there is a certainty or a very strong likelihood that the application in question would have been granted, but for the wrongful conduct of the local officials. RRI Realty Corporation v. Incorporated Village of Southampton, supra, 915-17; see also Board of Regents v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972); Yale Auto Parts, Inc. v. Johnson, 758 F.2d 54, 59 (2d Cir. 1985). *323A very strong likelihood means not simply a high probability of approval, but rather a virtual assurance of approval because any discretion is narrowly circumscribed. See Red Maple Properties v. Zoning Commission, supra, 737-38. “Application of the [‘clear entitlement’] test must focus primarily on the degree of discretion enjoyed by the issuing authority, not on the estimated probability that the authority will act favorably in a particular case.” (Internal quotation marks omitted.) Id., 739; see Carr v. Bridgewater, 224 Conn. 44, 52, 616 A.2d 257 (1992).

B

In this case, the trial court properly held that Kelley’s subdivision application was subject to the commission’s discretion and that the Lebanon land use regulations, therefore, did not clearly entitle Kelley to approval. The relevant Lebanon subdivision regulation, which addresses open space requirements and which served as the basis for the denial of Kelley’s application, provides: “The minimum area of open space shall be 10% of the total area of the land to be subdivided whether or not it is to be so subdivided entirely at the time of application. Generally such dedication shall not be less than one acre and shall be of such size and location as deemed appropriate by the Commission.” Lebanon Subdivision Regulation § 6.8B.15

*324Although Kelley acknowledges the applicability of the “clear entitlement” test to his federal claims, he argues that the trial court applied the test improperly to determine that § 6.8B gives the commission discretion to deny an application on the basis of its proposed open space reservation even if the application meets the other regulatory requirements.16 Kelley asserts that he meets the “clear entitlement” test because, according to Judge Walsh’s interpretation of that section, the commission had no discretion as to what comprised open space. Because the defendants did not seek further appellate review of the judgment in the administrative appeal, Kelley argues that Judge Walsh’s construction of the regulation must be given res judicata effect in this proceeding. The defendants contend, on the other hand, that the trial court properly determined that, even under Judge Walsh’s construction of the regulation, Kelley was not clearly entitled to approval of his application.

*325We agree with the defendants. Judge Walsh’s decision disapproved the commission’s denial of Kelley’s application for two reasons: (1) the denial was an arbitrary application of the zoning regulations and an abuse of discretion; and (2) § 6.8B is “not reasonably precise nor sufficient to give ‘those affected by [a] decision notice of their rights and obligations.’ ” On this record, it is not clear whether Judge Walsh merely held the commission’s application of the regulation to be an abuse of discretion in this case or invalidated the regulation itself. We conclude, however, that whether Judge Walsh’s decision is read to invalidate merely the commission’s use of § 6.8B in this case17 or to invalidate that provision as impermissibly vague,18 Kelley did not have a clear entitlement to approval of his subdivision application.

1

If we construe Judge Walsh’s decision as holding merely that the commission abused its discretion, Kelley was not clearly entitled to approval because, at the time his application was filed, the commission nonethe*326less had discretion that it could have exercised properly to deny the application. Section 6.8B, by its plain language, gives the commission discretion as to the size and location of open space proposed in a subdivision application. The relevant portion of § 6.8B states: “Generally, such dedication [of open space] shall not be less than one acre and shall be of such size and location as deemed appropriate by the Commission.” (Emphasis added.) This language, particularly the highlighted portions, authorizes the commission to make discretionary decisions on subdivision applications depending on the open space proposal. It refutes Kelley’s argument that a contrary conclusion would require resort to a broadly worded phrase taken out of context.

Kelley contends, however, that the Second Circuit’s decision in Sullivan v. Salem, 805 F.2d 81 (2d Cir. 1986), holds that an agency’s abuse of discretion in denying an application necessarily requires a conclusion that the applicant had a clear entitlement to approval. In Sullivan v. Salem, supra, 83, town officials had denied the plaintiff’s application for certificates of occupancy for newly constructed houses on the ground that the newly constructed road adjacent to the houses had not yet been accepted for dedication. The applicable regulations, however, did not contain any reference to road acceptance and, in fact, gave town officials “no element of discretion” except to the extent that they were obligated to determine whether the construction for which a certificate of occupancy was requested complied with the relevant state and municipal requirements. Id., 85. The Second Circuit held, therefore, that the plaintiff would have a protected property interest in approval of his application if the houses fully conformed to all other requirements.19

*327Kelley argues that, under Sullivan, the regulations must be read in light of the context in which they were applied in the particular circumstances of the case. Kelley notes that the Sullivan court held that “a theoretical possibility of discretionary action does not automatically classify an application for a license or certificate as a mere ‘unilateral hope or expectation.’ ” Id.

Kelley’s reliance on Sullivan v. Salem, supra, is unavailing. Read in light of its facts and subsequent Second Circuit decisions, Sullivan does not support the proposition that a discretionary regulation is insufficient to preclude a clear entitlement to approval of an application if the decision to deny the application is based on an improper exercise of that discretion. As we held in Carr v. Bridgewater, supra, 52-53, the “clear entitlement” test focuses on the degree of discretion that the regulation affords the commission at the time the application is filed. No subsequent conduct by the commission could alter that degree of discretion and give the applicant a protected property interest where none had existed at the time of the filing.

Second Circuit precedent is in accord. In RRI Realty Corporation v. Incorporated Village of Southampton, supra, and Dean Tarry Corporation v. Friedlander, 826 F.2d 210, 213 (2d Cir. 1987), the Second Circuit held that a regulation affording discretion to decisionmakers does not give rise to a clear entitlement, even if the decisionmaker in fact exercises that discretion improperly, as long as the reason given for the denial has a basis in the regulation. Distinguishing the circumstances of Sullivan from the circumstances of the case before it in Dean Tarry Corporation, the court stated *328that “[i]n Sullivan, the unlawful requirement preventing approval of the builder’s application [prior acceptance of roads] came out of thin air; it was not derived from an existing legislative or administrative standard.” Dean Tarry Corporation v. Friedlander, supra. Moreover, the Second Circuit in RRI Realty Corporation held that “even in a case where the denial of the permit is arbitrary . . . [t]he fact that the permit could have been denied on non-arbitrary grounds defeats the federal due process claim.” (Emphasis in original.) RRI Realty Corporation v. Incorporated Village of Southampton, supra, 918.

The Second Circuit’s subsequent reading of Sullivan is consistent with the specific facts of that case. The denial for which Sullivan sought damages was based on a consideration that had no basis in the applicable regulations, but was plucked “out of thin air.” Dean Tarry Corporation v. Friedlander, supra. The applicant could not reasonably have anticipated denial of its application on the stated ground. In this case, however, the articulated reason for the commission’s denial of Kelley’s application was grounded in the discretionary open space provision of § 6.8B. Accordingly, the commission’s erroneous reliance on insufficient dry land within the proposed open space did not erase the degree of discretion otherwise afforded by the regulation at the time the application was filed and Kelley was thus not clearly entitled to approval.

2

The result of our inquiry into the commission’s degree of discretion is the same even if we assume, contrary to the preceding analysis, that Judge Walsh’s decision invalidated § 6.8B, rather than finding a mere abuse of discretion in the commission’s reliance on that provision to deny Kelley’s application. At the time the application was filed, the relevant regulation, even if *329later invalidated, afforded the commission discretion to deny the application. We conclude, therefore, that Kelley did not have a clear entitlement to approval of his application.

The Second Circuit has decided precisely this issue.20 In Dean Tarry Corporation v. Friedlander, supra, a real estate developer sought damages under § 1983 against a town and several town officials who had rejected its site development plan. Subsequent to the rejection, a state court had held that the zoning ordinance under which the town officials had exercised discretion to deny the plan was invalid because it granted more discretion than was permissible under the enabling statute. Id., 211. The Second Circuit held that the subsequent invalidation of the ordinance did not aid the developer in its federal due process claim because the broad discretion conferred by the ordinance “prevented [the developer’s] expectation of success from rising to the level of certainty required to give rise to a cognizable property right.” Id., 213. Because the broadly worded ordinance21 was in operation at the time of the town officials’ exercise of their discretion, its later invalidation did not affect the applicant’s entitlement to approval. See Carr v. Bridgewater, supra, 52-53.

In this case, similarly, the plain language of § 6.8B, at the time Kelley’s application was filed, granted the *330commission discretion to deny subdivision applications because of certain open space concerns. Accordingly, even if Judge Walsh did invalidate that provision in his decision in the administrative appeal, Kelley did not thereby retroactively gain a clear entitlement to approval.

Having failed to establish a protected property interest in subdivision approval, Kelley has not satisfied the threshold requirement of a federal due process claim. We conclude, therefore, that the trial court properly rendered summary judgment in favor of the defendants on Kelley’s federal claims, contained in counts one, two and three of the second amended complaint.

II

We turn now to Kelley’s claim that we should recognize22 a damages remedy that would provide a means of redress for those whose state constitutional rights to due process, guaranteed by article first, § 8, have allegedly been violated by zoning officials. Kelley suggests two alternate bases for recognizing a damages cause of action: (1) Connecticut common law provided for recovery for injuries that were substantially similar to the state due process-based injuries alleged by Kelley and, therefore, article first, § 10,23 of the Connecticut constitution ensures the continued availability of such recovery; and (2) the reasoning of Bivens v. Six Unknown Named Agents of Federal *331 Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971), applies with equal force in the state constitutional context as in the federal constitutional context. Kelley claims that the decisions of other states on this issue lend support to his Bivens argument. We do not agree that a cause of action for damages either already exists or should exist to redress the injuries alleged by Kelley.

A

Kelley urges us to recognize a cause of action for damages in this case because a common law damages action existed in Connecticut before 1818, when the state constitution was adopted, for injuries substantially similar to those he allegedly sustained as a result of the defendants’ conduct. Kelley contends that article first, § 10, of the state constitution ensures the continued existence of that remedy. We are not persuaded.

We agree with Kelley that we have consistently interpreted article first, § 10, to prohibit the legislature from abolishing a right that existed at common law prior to 1818. “[A]ll rights derived by statute and the common law extant at the time of the adoption of article first, § 10, are incorporated in that provision by virtue of being established by law as rights the breach of which precipitates a recognized injury, thus being exalted beyond the status of common-law or statutory rights of the type created subsequent to the adoption of that provision.” Gentile v. Altermatt, 169 Conn. 267, 286, 363 A.2d 1 (1975), appeal dismissed, 423 U.S. 1041, 96 S. Ct. 763, 46 L. Ed. 2d 631 (1976); see also Sanzone v. Board of Police Commissioners, 219 Conn. 179, 194-95, 592 A.2d 912 (1991). Even if a particular right did exist at common law, however, the legislature is entitled to abolish or modify, consistently with article first, § 10, the right as long as it also enacts a reasonable alternative to the enforcement of the right. Gentile v. Altermatt, supra.

*332In support of his contention that a common law damages action existed in similar circumstances before 1818 and, therefore, must exist today, Kelley cites Johnson v. Stanley, 1 Root (Conn.) 245 (1791), and Waters v. Waterman, 2 Root (Conn.) 214 (1795), in both of which the plaintiffs were awarded damages from town selectmen for the selectmen’s illegal appointment of overseers to conduct the plaintiffs’ affairs. Neither case states whether the basis for the award of damages was a statutory violation or a violation of a fundamental common law principle that we would now characterize as having constitutional significance. Cf. Grumon v. Raymond, 1 Conn. 39, 43-44 (1814) (awarding damages from justice of peace for issuing general warrant).24

Decisions of this court subsequent to Johnson and Waters clarify that, in those cases, the selectmen’s illegal conduct contravened a statute empowering them to appoint overseers in appropriate cases.25 These later *333precedents do not suggest a constitutional illegality in the misuse of appointive authority. See Strong v. Birchard, 5 Conn. 357, 361 (1824); Chalker v. Chalker, 1 Conn. 79, 82-83 (1814); cf. Colby v. Jackson, 12 N.H. 526, 533-35 (1842) (money damages awarded against selectman for illegally confining a person thought to be incompetent; damages were for “trespass and entry into the plaintiffs house”).

In the absence of a clear indication in Johnson and Waters that the damages awards in those cases redressed rights akin to fundamental constitutional rights, we decline to read these cases as establishing a common law precedent for the existence of a constitutional claim for damages for any and all alleged misconduct by state or local governmental officers. It is more plausible to understand these cases as precursors of the modern principle that violation of statutory rights may allow an injured person to assert a private cause of action or a traditional tort action for damages. See, e.g., Mead v. Burns, 199 Conn. 651, 663, 509 A.2d 11 (1986) (private cause of action exists under CUTPA for alleged CUIPA violations); Conaway v. Prestia, 191 Conn. 484, 491, 464 A.2d 847 (1983) (private cause of action exists under CUTPA for alleged violations of certain landlord-tenant statutes). We conclude, therefore, that Kelley has failed to establish that, in the circumstances of this case, a damages action for the violation of a quasi-constitutional right existed at common law in Connecticut prior to 1818 and thereby became incorporated into the state constitution by virtue of article first, § 10.

*334B

As an alternative to his common law argument, Kelley also contends that this court should infer the existence of a cause of action for damages from the existence of the state constitution’s due process provision for the reasons of policy articulated in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, supra. In that case, the United States Supreme Court created a cause of action for damages for injuries sustained as a result of federal officials’ violation of a citizen’s rights under the fourth amendment to the federal constitution. Relying on the rationale of Bivens, Kelley argues that we should create a state Bivens action because damages are the traditional remedy for invasions of personal rights and because the legislature has not prohibited such a cause of action.26 Moreover, Kelley asserts that the United States Supreme Court has extended Bivens to allow a cause of action for damages for violations of the fifth amendment’s due process guarantee. See Davis v. Passman, 442 U.S. 228, 99 S. Ct. 2264, 60 L. Ed. 2d 846 (1979).

*335To place Kelley’s Bivens claim in perspective, it is useful to review the Bivens line of cases. In Bivens, the United States Supreme Court created a cause of action for damages to redress injuries allegedly sustained when federal officials illegally searched and seized the plaintiff in violation of his fourth amendment rights. The court reasoned that damages are the “ordinary remedy” for such invasions of personal rights and that it is irrelevant whether the availability of damages is actually necessary to enforce the fourth amendment. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, supra, 395-97. Rather, “[t]he question is merely whether petitioner . . . is entitled to redress his injury through a particular remedial mechanism normally available in the federal courts.” Id., 397. Furthermore, the court noted in Bivens that there existed neither “special factors counselling hesitation,” such as the presence of a question involving the federal government’s fiscal policy or a relationship between the government and a soldier, nor an explicit congressional prohibition of a damages remedy in the present circumstances. Id., 396-97.

The United States Supreme Court later extended Bivens to create a damages cause of action for injuries sustained when a Congressman discharged an administrative assistant in alleged violation of the fifth amendment due process provision’s protection against sex discrimination. Davis v. Passman, supra. The court in Davis cited several factors in support of its decision. First, the court determined that a cause of action for damages was particularly appropriate in the case at hand for two reasons: (1) the plaintiff sought only back pay and, therefore, no complicated issues of valuation and causation would arise; and (2) equitable relief, such as reinstatement, would be unavailing because the defendant Congressman was no longer in office. Id., 245. Second, although the fact that the defendant had *336been a member of Congress was a potential “special [factor] counseling hesitation,” that factor was overridden by the principle that all persons, including federal officials, were subject to federal law. Id., 246. Third, the court in Davis noted the absence of an express congressional prohibition of a damages action for alleged violations of the fifth amendment’s due process guarantee. Id., 246-47; see also Carlson v. Green, 446 U.S. 14, 19-20, 100 S. Ct. 1468, 64 L. Ed. 2d 15 (1980) (allowing a damages cause of action against individual federal officials for their alleged violations of the petitioner’s eighth amendment rights, despite the existence of the Federal Tort Claims Act, under which the petitioner could have sought damages against the federal government).

The United States Supreme Court’s decisions in Bivens, Davis and Carlson reveal that, at least until 1980, the court considered several factors to be significant in determining whether to create a direct cause of action for damages for an alleged federal constitutional violation by federal officials. These factors included: (1) the inadequacy or absence of an alternative remedy; (2) the absence of explicit direction from Congress that no damages remedy should lie; and (3) the absence of any special factors counselling hesitation, such as federal fiscal policy. See J. Steinman, “Backing Off Bivens and the Ramifications of This Retreat for the Vindication of First Amendment Rights,” 83 Mich. L. Rev. 269, 270-77 (1984).

More recently, however, the United States Supreme Court appears to have retreated from the reasoning underlying Bivens. See J. Steinman, supra, 285-97; note, “Two Approaches to Determine Whether an Implied Cause of Action Under the Constitution Is Necessary: The Changing Scope of the Bivens Action,” 19 Ga. L. Rev. 683, 685 (1985). For example, in Chappell v. Wallace, 462 U.S. 296, 103 S. Ct. 2362, 76 L. *337Ed. 2d 586 (1983), the court refused to allow enlisted military personnel a damages action for alleged violations of their equal protection rights by federal military officers. See also Bush v. Lucas, 462 U.S. 367, 389-90, 103 S. Ct. 2404, 76 L. Ed. 2d 648 (1983) (refusing to allow federal employee a damages cause of action against employer for alleged violation of employee’s first amendment rights, on the grounds that civil service damages are available and that Congress is better suited to decide to create new remedies). In support of its decision, the court in Chappell cited several “special factors [that counsel] hesitation,” such as the military’s unique discipline based structure, the constitution’s delegation to Congress of plenary authority over the military and Congress’ establishment of complaint and grievance procedures within the military structure. Chappell v. Wallace, supra, 302-304. The court emphasized the intramilitary system of justice as an alternate source of remedies that justified its refusal to allow a Bivens type action, although the previous Bivens cases had also considered the adequacy of any alternative remedy in the analysis of the need for a damages remedy. Compare Carlson v. Green, supra, 20-23 (“[fjour additional factors, each suggesting that the Bivens remedy is more effective than the FTCA [Federal Tort Claims Act] remedy, also support our conclusion that Congress did not intend to limit respondent to an FTCA action”), with Bush v. Lucas, supra, 372, 389-90 (refusing to create a damages remedy for alleged violation of first amendment rights despite assumption that the available “civil service remedies were not as effective as an individual damages remedy and did not fully compensate [the plaintiff] for the harm he suffered”).

In its current configuration, the Bivens line of United States Supreme Court cases thus appears to require a would be Bivens plaintiff to establish that he or she *338would 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. This line of federal cases, therefore, does not persuasively support Kelley’s argument. We decline Kelley’s invitation to rely on Bivens itself without regard to its subsequent modification by the United States Supreme Court.

Turning from the federal analogy, Kelley asserts, however, that decisions of other state courts recognizing damages actions for alleged state constitutional violations support his Bivens claim. We do not agree.

The several sister jurisdictions that have addressed the issue of whether to recognize a state Bivens action have pursued varying methods of analysis, with varying results. In a significant number of cases, however, the focus has been on the presence or absence of an existing alternative remedy, either by way of statute or under the common law, to provide some measure of relief for the injured party. See, e.g., State v. Haley, 687 P.2d 305, 318 (Alaska 1984) (statutory cause of action exists); Gay Law Students Assn. v. Pacific Telephone & Telegraph Co., 24 Cal. 3d 458, 475 n.10, 595 P.2d 592, 156 Cal. Rptr. 14 (1979) (state Bivens action appropriate because of the absence of any administrative remedy); Widgeon v. Eastern Shore Hospital Center, 300 Md. 520, 525-28, 535, 479 A.2d 921 (1984) (no constitutional action in light of common law remedies); Phillips v. Youth Development Program, Inc., 390 Mass. 652, 658 n.4, 459 N.E.2d 453 (1983) (need for judicial protection of rights in the absence of statutory remedies); Rockhouse Mountain Property Owners Assn. v. Conway, 127 N.H. 593, 597-601, 503 A.2d 1385 (1986) (refusal to lay out roads; statutory law provides a remedy in the form of an appeal to the superior court, even *339though no right to damages);27 Corum v. University of North Carolina, 330 N.C. 761, 783, 413 S.E.2d 276 (1992) (because no other remedy available, common law guarantees plaintiff a direct action under the state constitution); Provens v. Stark County Board of Mental Retardation & Developmental Disabilities, 64 Ohio St. 3d 252, 261, 594 N.E.2d 959 (1992) (reasonably satisfactory statutory and administrative remedies preclude civil cause of action under state constitution). In other cases, the courts have looked to the particular circumstances of the case, as well as to relevant constitutional history, in deciding whether to recognize a state Bivens claim. See, e.g., Walinski v. Morrison & Morrison, 60 Ill. App. 3d 616, 619-20, 377 N.E.2d 242 (1978) (creating a state Bivens action); Moresi v. Department of Wildlife & Fisheries, 567 So. 2d 1081, 1093 (La. 1990) (creating a state Bivens action); Smith v. Department of Public Health, 428 Mich. 540, 631-32, 410 N.W.2d 749 (1987) (declining to create a state Bivens action).

Our examination of these cases leads us to conclude 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 statutory remedy. This conclusion accords with the constitutional principle of separation of powers and its requirement for judicial deference to legislative resolution of conflicting considerations of public policy. See, e.g., State v. Campbell, 224 Conn. 168, 179, 617 A.2d 889 (1992); Murphy v. State Employees Retirement Commission, 218 Conn. 729, 736, 590 A.2d 974 (1991); Bartholomew v. Schweizer, 217 Conn. 671, 676, 587 A.2d 1014 (1991). Our legislature has demonstrated its *340sensitivity to the importance of protecting constitutional rights. See, e.g., General Statutes § 31-51q.28

The circumstances of this case provide no compelling justification for departure from this general principle. We note that the legislature, by enacting General Statutes § 8-8,29 has provided Kelley an avenue for administrative relief from the wrongful and allegedly unconstitutional conduct of the defendants. It is constitutionally significant that judicial review of the administrative decision may be available. See General Statutes § 8-8 (o). The existence of this remedy weighs heavily against judicial creation of a state Bivens action. Moreover, even if such administrative relief were deemed to be inadequate, a proposition to which we do not subscribe, Kelley might have pursued other actions to protect his interests. He might, for example, have brought an action for intentional interference with business expectancy,30 or for equitable relief, such *341as an action for an injunction against the defendants’ allegedly wrongful conduct.

As a matter of policy, the existing remedies, although they may not afford as complete relief as a state Bivens action would provide, are particularly appropriate in light of the fact that the Lebanon officials whose conduct allegedly violated Kelley’s state constitutional rights are not professionals but are laypersons with little or no technical expertise. See Gardiner v. Conservation Commission, 222 Conn. 98, 103, 608 A.2d 672 (1992); Protect Hamden/North Haven from Excessive Traffic & Pollution, Inc. v. Planning & Zoning Com *342 mission, 220 Conn. 527, 554, 600 A.2d 757 (1991); Spero v. Zoning Board of Appeals, 217 Conn. 435, 444, 586 A.2d 590 (1991). To expose the commission members, as well as Lebanon and the commission, to expansive liability in damages for an erroneous interpretation of the parameters of the members’ discretion would be likely, for at least two reasons, to have adverse consequences on the parties, local zoning processes and the courts.

First, although potential defendants could avoid liability by not engaging in unconstitutional conduct, they might not be able to predict accurately what conduct would be found to violate the state constitution. The threat of liability would be apt to entail costs of its own, insofar as that threat may have a chilling effect on the zeal with which zoning commissions and their members undertake their responsibilities.31

Second, 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. The cost to towns, zoning commissions and their members of defending against a myriad of such claims, whether or not meritorious, would be great, and the courts also would incur costs in light of the increased caseload.

Accordingly, we conclude that this case does not require the recognition of a state Bivens action because Kelley’s existing statutory remedy strikes a proper bal*343anee. Section 8-8, supplemented by other potentially available avenues of relief, affords disappointed zoning applicants a reasonable remedy that does not impose unwarranted burdens on the towns, zoning commissions, zoning officials or the courts.

We note, finally, that the very considerations to which Kelley points as justification for judicial creation of a state Bivens action point to the advisability of judicial restraint. Kelley suggests that his due process rights were violated because the defendants denied his zoning application, not in the exercise of their administrative discretion, but as a result of improper motivation, political or otherwise. To the extent, however, that the dispute between Kelley and the defendants is a political one stemming from differences in their visions of the future of Lebanon, it is preferable that such a dispute should be resolved not by litigation but within designated political channels: zoning commissions, town boards and other local political institutions. Cf. Hahn v. Zoning Commission, 162 Conn. 210, 214, 293 A.2d 9 (1972). Accordingly, we conclude that judicial creation of a supplemental damages remedy in this case would be inappropriate.

The judgment is affirmed.

In this opinion Callahan, Norcott, Katz and Santaniello, Js., concurred.

Borden, J.,

dissenting. Although I agree with parts I and IIA of the majority opinion, I disagree with part IIB. I would infer a Bivens-type cause of action; Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971); under our state constitutional due process clause. Accordingly, I dissent from the ultimate determination of the case by the majority.

*344First, I agree with the parties, and with the assumption of the majority, that we have the power to infer a cause of action for damages directly from the due process clause of our constitution. As the majority indicates, Bivens recognizes such a power under the federal constitution; the Restatement (Second) of Torts § 847A (1979) does likewise; and we have inferred private rights of actions for damages for violations of statutory imperatives. See Mead v. Burns, 199 Conn. 651, 663, 509 A.2d 11 (1986); Conaway v. Prestia, 191 Conn. 484, 491, 464 A.2d 847 (1983). It would be incongruous to hold that our constitution is a drier source of private rights than the federal constitution or our own statutes.

Second, I would hold that the ownership of property or the right to develop it for legitimate uses is sufficient to establish a constitutionally protected property interest under our own constitution. Both the Ninth and the Third Circuit Courts of Appeal; see Del Monte Dunes v. Monterey, 920 F.2d 1496, 1508 (9th Cir. 1990); Bello v. Walker, 840 F.2d 1124, 1127-30 (3d Cir.), cert. denied, 488 U.S. 851, 109 S. Ct. 134, 102 L. Ed. 2d 107 (1988); explicitly use this standard under the federal due process clause, as opposed to the Second Circuit’s and our concomitant, more restrictive standard under the federal constitution. See Carr v. Bridgewater, 224 Conn. 44, 51-52, 616 A.2d 257 (1992).

The more restrictive standard under the federal constitution, employed by the Second Circuit and by Connecticut in the interest of uniformity within this Circuit, is based on considerations that are not present in this case, namely, the notions of federalism and comity, under which the federal courts are reluctant to become federal overseers of the state land use planning process, in 42 U.S.C. § 1983 cases stemming from local land use planning controversies. See RRI Realty Corporation v. Incorporated Village of Southampton, 870 *345F.2d 911, 918 (2d Cir.), cert. denied, 493 U.S. 893, 110 S. Ct. 240, 107 L. Ed. 2d 191 (1989). Our state courts, however, already play that role to some extent by reviewing local land use planning decisions, albeit under a limited scope of review in many cases. Furthermore, a standard of the ownership of property or right to develop property for legitimate uses is consistent with our law—both statutory and common—of standing and aggrievement. See, e.g., Connecticut Resources Recovery Authority v. Planning & Zoning Commission, 225 Conn. 731, 739 n.12, 626 A.2d 705 (1993); Hall v. Planning Commission, 181 Conn. 442, 445, 435 A.2d 975 (1980).

Against this background, I turn to the cause of action asserted in this case. The complaint explicitly alleges, in some detail, that the plaintiffs “subdivision application conformed in all respects with applicable regulations.” It then alleges that “the defendants intentionally, knowingly, and arbitrarily abused their governmental authority as members of a public agency with jurisdiction over land use to obstruct and delay [the plaintiffs] development of the . . . property” in ten specified ways. These ten ways included such conduct as: “misleading Kelley and his attorney about the date of newspaper publication of the Commission’s denial, for the purpose of preventing Kelley from exercising his appeal rights”; “intentionally failing to follow clearly-settled legal obligations to” judge his application on the proper basis; intentionally failing to provide him with fundamental fairness at hearings; and intentionally failing to review his application materials before acting on them.

For the purposes of this appeal, these allegations are unchallenged. The defendants did not move to strike the complaint for insufficiency of these allegations. The principal claim involved in this case, and the gravamen of the trial court's summary judgment in favor of the *346defendants, is the lack of a Bivens-type cause of action under our due process clause, regardless of the nature of the allegations. I proceed, therefore, on the assumption that, for purposes of deciding whether there is such a cause of action, these allegations suffice to spell one out. This means, therefore, that for purposes of this appeal the defendants must be regarded as having used their official positions, not for the purpose of discharging the duties imposed on them by law; not for the purpose of rendering good faith but even grievously mistaken decisions; but for the explicit purpose of harming the plaintiff—in order “to obstruct and delay,” “knowingly and intentionally,” the project to which they knew he was legally entitled. I do not believe that our due process clause is so anemic, and I do not believe that the need to avoid chilling the zeal of local land use officials is so overwhelming, that even conduct like this cannot be redressed under our state constitution.

I would apply the same factors that informed the original Bivens analysis: (1) the inadequacy or absence of an alternative remedy; (2) the absence of explicit direction from the legislature that no damages remedy should lie; and (3) the absence of any special factors counselling hesitation. In this connection, I see no reason, contrary to the position of the majority opinion, why we would be required to follow the post-Bivens retreat from its original principles, simply because that has been the course that the United States Supreme Court subsequently followed. This case is our first opportunity to consider the issue, and I do not see why our initial analysis has to begin where the United States Supreme Court’s analysis has ended.

Applying these factors, I reach a different conclusion from that of the majority opinion. The gist of the argument of the majority opinion is that “we should not construe our state constitution to provide a basis for the recognition of a private damages action for injuries for *347which the legislature has provided a reasonably adequate statutory remedy.” I agree with this principle. I disagree, however, with its application to the facts of this case, because a zoning appeal under General Statutes § 8-8 is not a reasonably adequate remedy for the harm of which the plaintiff complains. I would conclude, on the contrary, that a Bivens-type action is warranted because there is no adequate alternative remedy.

The harm occasioned by the defendants’ intentional and knowing abuse of their official positions was the obstruction and delay of the plaintiff’s project, so that by the time his rights to the permit were vindicated on appeal the project was no longer viable. Indeed, the plaintiff claims that, as a result of that delay, the banks that had loaned him money to finance the project began foreclosure proceedings and, in lieu of foreclosure, the plaintiff was forced to deed the property to the banks. The legislative remedy of a zoning appeal is not an adequate alternative to redress by an action for damages for the kind of conduct alleged here, because that remedy does not address the harm intended and caused by that conduct.

One need not be an expert in real estate development to know that one of the best ways to kill such a development is to delay its implementation in the hopes that, by the passage of time, it will no longer be viable when it is finally approved. That hope, it seems to me, is a fair inference provable under the uncontested allegations of the defendants’ motives and actions in this case. See Westport Bank & Trust v. Corcoran, Mallin & Aresco, 221 Conn. 490, 495, 605 A.2d 862 (1992) (we read pleadings to encompass, not only the specific facts alleged, but all facts fairly provable under them). Nor is it an answer to this argument that such a delay would be inherent in a good faith denial of a subdivision application, rather than a bad faith and malicious denial. Constitutionally, it is one thing for a citizen, in order *348to vindicate his rights, to be required to undergo the delay inherent in the administrative process resulting from the errors of public officials that are the consequence of evenhanded, if mistaken—even very mistaken—conduct by those officials. That is the price of civilization, to paraphrase Justice Holmes. Compania De Tabacos v. Collector, 275 U.S. 87, 100, 48 S. Ct. 100, 72 L. Ed. 177 (1927) (Holmes, J., dissenting) (“[t]axes are what we pay for civilized society”). Constitutionally, it is a more odious result to have to undergo those delays solely because those officials— who are supposed to be serving all of the public, including the plaintiff—decide to abuse their power by making the plaintiff the target of their animus.

I am not persuaded, moreover, at least not without a lot more research and authority than the opinion provides, that an action for tortious interference with a business expectancy supplies such an adequate remedy. It is far from clear to me that the plaintiff would have had such a claim against these public officials. The case cited by the majority, Blake v. Levy, 191 Conn. 257, 260, 464 A.2d 52 (1983), is not an action against a public official.1 Furthermore, the suggestion that the plaintiff could have brought an action for injunctive relief as an adequate remedy is unpersuasive. By the time he had won his zoning appeal, the harm was done. What was there left to enjoin? And until he had won his zoning appeal, it was far from certain that he had been entitled to the permit all along.

The second Bivens factor is the question of whether there has been explicit legislative direction that no such action should lie. It seems clear to me that there has been no such explicit direction.

*349The third factor is the absence of special factors counselling hesitation. I acknowledge that imposing financial responsibility on the town for the intentionally abusive conduct of its public land use planning officials may be such a factor. Nevertheless, I have several responses. I do not believe that this is a “special” factor counselling prohibition; if financial expense alone were such a factor, then by definition there could never be a Bivens-type action for damages because a successful action for damages means financial expense for the defendants. Furthermore, “hesitation” does not mean absolute prohibition. It implies that we weigh all the factors carefully. Finally, towns are now liable for the wilful and malicious torts of their employees; see General Statutes § 7-101a; and for federal civil rights violations by their land use officials, albeit after a more difficult threshold is passed; see Carr v. Bridgewater, supra; and I do not believe that the incremental liability resulting from the recognition of a Bivens-type action is great enough to require an absolute prohibition.

I disagree, also, with the policy argument made by the majority. The argument is twofold: (1) exposure to liability on the part of local, lay zoning commission members would chill the zeal with which they perform their duties; and (2) the availability of a Bivens-type action would encourage disappointed applicants to sue whenever an application is denied, with deleterious financial effects on the towns, commission members and the courts.

I do not underestimate the potential chilling effect, but I think that the argument is overstated. The same officials are already subject to suit under 42 U.S.C. § 1983, although, as I acknowledge previously, a higher threshold must be mounted for the plaintiff to succeed. Furthermore, other local officials are clearly subject to similar federal civil right actions, both in federal *350court and in our state courts. In those cases; see, e.g., DeLaurentis v. New Haven, 220 Conn. 225, 237, 597 A.2d 807 (1991); there is no high initial threshold as in Carr v. Bridgewater, supra, and yet there is no evidence that such other officials perform their duties with less zeal than is appropriate, simply because they are subject to suit.

Furthermore, I believe that the chilling effect would be “warmed” by a requirement that either: (1) the plaintiff allege and prove malice; or (2) the defendants be entitled to a defense of qualified immunity. See, e.g., DeLaurentis v. New Haven, supra, 243 (“ ‘[t]he presumption is that qualified rather than absolute immunity is sufficient to protect government officials in the exercise of their duties’ ”). Moreover, what the majority opinion regards as having a chilling effect is not an unmitigated disaster. It also has the beneficial effect of discouraging out-of-control local officials, as the defendants are alleged to have been here, from abusing their power at the expense of one of their citizenry.

I also think that the “litigation floodgates” argument is overstated. No doubt, there would be more suits than there are now under federal § 1983. But these are, I suspect, expensive cases to litigate and difficult cases to win, particularly with qualified immunity available as a defense. Those difficulties will act as something of a dike against the feared flood of litigation. More significantly, what I propose here is essentially already available in the states following the decisons of the Ninth and Third Circuit Courts of Appeal, and I am not aware of any flood of litigation in the state courts in those parts of the country.2

I also disagree with the suggestion of the majority that a dispute like this should be resolved through *351political channels. Resort to the ballot box is little consolation to a property owner who has already been victimized, to his financial harm, by the abusive conduct of the very officials who are supposed to be representing him, along with everyone else in town.

I recognize that we have no right to expect, in our democratic society, that our local public officials will never make mistakes—even terrible ones—in the performance of their duties. We do have the right, however, to expect that they will not use their positions of authority—even if unpaid and difficult, as are the positions of the defendants in this case—to work against us for malicious motives. I believe that our constitutional due process clause is robust enough to offer a remedy for such conduct, and that our honest local citizens are staunch enough that they will continue to perform their duties in good faith even though someone might later claim, baselessly, that they acted as alleged in this case. I would hold that, if a property owner has been victimized as alleged in this case, our state constitutional due process clause does provide a direct remedy by way of an action for damages.

I would also caution, however, that the source of this decision is the conclusion that the legislature has not supplied an adequate alternative remedy. The fact that we infer a remedy from the due process clause, based upon that inadequacy, necessarily also implies that the legislature can still enter the field and supply such a legislative remedy that would supplant this judicially inferred remedy.

Had the legislature, for example, already enacted a specific statutory remedy aimed at this kind of public conduct—or enacted a more general statute that, as properly applied, supplied a reasonably adequate alternate remedy to a direct action under our due process clause—I would agree with the conclusion reached by *352the majority. The fact that we have, because of this lawsuit, entered the fray before the legislature cannot mean that the legislature is somehow now foreclosed. First in time does not necessarily mean first in right, at least when it comes to the interplay between our legislative and judicial branches, each implementing the due process clause of our state constitution. I suggest, therefore, that the legislature would still be free to do so, and to do so in ways that balance the competing interests—individual and town—more creatively than we can by adjudication, in which there must be a winner and a loser, and in which ordinarily winner takes all.

Berdon, J.,

concurring in part and dissenting in part. I agree with the majority that the plaintiff has failed to establish a protected property interest in the approval of his subdivision application and therefore has not met the threshold requirement of a federal due process claim under the Second Circuit Court of Appeals’ “clear entitlement” test, adopted by this court in Red Maple Properties v. Zoning Commission, 222 Conn. 730, 738, 610 A.2d 1238 (1992).

Nevertheless, the plaintiff clearly alleged the violation of his due process rights under the state constitution. We recognize that “[i]n the area of fundamental civil liberties—which includes all protections of the declaration of rights contained in article first of the Connecticut constitution—we sit as a court of last resort, subject only to the qualification that our interpretations may not restrict the guarantees accorded the national citizenry under the federal charter. In such constitutional adjudication, our first referent is Connecticut law and the full panoply of rights Connecticut residents have come to expect as their due. Accordingly, decisions of the United States Supreme Court defining fundamental rights are persuasive authority to be afforded respectful consideration, but they are to be followed *353by Connecticut courts only when they provide no less individual protection than is guaranteed by Connecticut law.” (Internal quotation marks omitted.) State v. Marsala, 216 Conn. 150, 160, 579 A.2d 58 (1990).

Accordingly, although we defer to the Second Circuit by using the “clear entitlement test” in cases involving the application of federal law;1 Red Maple Properties v. Zoning Commission, supra; we may afford greater rights under the state constitution by holding that the plaintiffs property interest is in the property owned, rather than in the entitlement to the permit. I therefore agree with Justice Borden that “the ownership of property or the right to develop it for legitimate uses is sufficient to establish a constitutionally protected property interest under our own constitution.” This court, like the Third and Ninth Circuit Courts of Appeal, should focus on whether the governmental action was “arbitrary and irrational.” Del Monte Dunes v. Monterey, 920 F.2d 1496, 1508 (9th Cir. 1990); Bello v. Walker, 840 F.2d 1124, 1129 (3d Cir.), cert. denied, 488 U.S. 851, 109 S. Ct. 134, 102 L. Ed. 2d 107 (1988).

It is clear to me that when the government violates an individual’s state constitutional right, that individual should be made whole. Otherwise, the right would be an empty and meaningless one. “To say that govern*354ment should pay its way and bear the costs of its transgressions is like saying that people should tell the truth, earn their keep, and pay their debts. We can imagine exceptions to each of these maxims, circumstances under which we might be prepared to suspend their force, but they remain foundation stones of our moral order. [P. Schuck, Suing Government (1983) p. 112].” J. Friesen, “Recovering Damages for State Bills of Rights Claims,” 63 Tex. L. Rev. 1269 (1985). The reasoning employed in 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), which holds that a cause of action for damages is available for violation of the Fourth Amendment, is also applicable to violations of state constitutional rights. “ ‘[W]here 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.’ Bell v. Hood, 327 U.S. [678, 684, 66 S. Ct. 773, 90 L. Ed. 939 (1946)].” Id., 392.

It should not be surprising that damages are available to a person whose state constitutional rights have been violated. Long before the adoption of our constitution of 1818, violations of fundamental rights were redressed by civil action for damages. The parties involved in obtaining, issuing and executing an illegal warrant, for instance, were liable in an action for damages based upon trespass. “If a warrant be granted, which is against law, such as no magistrate or justice of the peace should issue, the magistrate granting it, the officer executing it, and the party obtaining it, are liable in an action of trespass.” 1 Z. Swift, Digest of the Laws of the State of Connecticut (1822) p. 495; see also Grumon v. Raymond, 1 Conn. 39, 44 (1814). Likewise, selectmen who wrongfully and illegally appointed an overseer over the plaintiff without just or legal cause were liable for damages. Johnson v. Stanley, 1 Root *355(Conn.) 245 (1791); see also Waters v. Waterman, 2 Root (Conn.) 214 (1795). It is clear that the framers of our constitution envisioned that persons whose rights were violated would be entitled to redress for damages.

I agree with the majority, however, that a private action for damages is not available for state constitutional violations when “the legislature has provided a reasonably adequate statutory remedy.” In many cases, the right to appeal provided in General Statutes § 8-8 is adequate to protect the property owner from arbitrary and capricious action on the part of government in a land use case. If the legislature has not provided a remedy or if the remedy is not reasonably adequate, however, in view of the facts of a particular case, a private cause of action is constitutionally available to right the wrong.

In this case, given the egregious allegations outlined by Justice Borden in his dissent, the right to appeal pursuant to § 8-8 did not provide an adequate remedy. The appeal resulted merely in the reversal of the Lebanon planning and zoning commission; it did nothing to remedy the harm caused by the defendant’s intentional and arbitrary abuse of government authority “to obstruct and delay [the plaintiff’s] development of the . . . property.”

The majority expresses concern about protecting citizens who serve as members of local zoning boards and commissions. I recently expressed this same concern in Carr v. Bridgewater, 224 Conn. 44, 61, 616 A.2d 257 (1992) (Berdon, J., concurring), as follows: “We depend heavily upon citizen participation in state and town boards and commissions. This is particularly true in the regulation of land use, which is of the utmost importance not only for a town’s orderly development, but also for the protection of our environment. Our legislature has delegated this regulation to the towns. *356E.g., General Statutes §§ 8-1 and 8-2. The amicus curiae brief of the Conservation Law Foundation of New England, Inc., appropriately notes the following: ‘This important regulatory function is performed by members of local commissions, elected or appointed, who serve without compensation. They receive little or no formal training, legal or otherwise; and unlike many who appear before them, they are not supported by any full-time professional staff. They have to make innumerable on-the-spot decisions, procedural and substantive, that may have significant legal effects; but in many cases their only source of legal advice is a part-time town attorney, otherwise engaged in private practice, who generally is available for consultation only before or after the fact.’ ” In Carr, however, I recognized the need for balance, especially in cases involving allegations as serious as those lodged in the present case. “At the same time, I am concerned with the rights of property owners, such as the plaintiff, and their right to develop their property in a manner permitted by the regulations.” Id.

In view of this need for balance, I believe that public policy requires us to insulate public servants with a qualified immunity, the contours of which are set out in Harlow v. Fitzgerald, 457 U.S. 800, 813-14, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982). “[GJovernment officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Id., 818. Whether there is qualified immunity is generally a question for the court rather than a jury. Hughes v. Meyer, 880 F.2d 967, 969 (7th Cir. 1989), cert. denied sub nom. Hughes v. Buss, 495 U.S. 931, 110 S. Ct. 2172, 109 L. Ed. 2d 501 (1990).

“Reliance on the objective reasonableness of an official’s conduct, as measured by reference to clearly *357established law, should avoid excessive disruption of government and permit the resolution of many insubstantial claims on summary judgment. On summary judgment, the judge appropriately may determine, not only the currently applicable law, but whether that law was clearly established at the time an action occurred. If the law at that time was not clearly established, an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to ‘know’ that the law forbade conduct not previously identified as unlawful. Until this threshold immunity question is resolved, discovery should not be allowed. If the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct. Nevertheless, if the official pleading the defense claims extraordinary circumstances and can prove that he neither knew nor should have known of the relevant legal standard, the defense should be sustained. But again, the defense would turn primarily on objective factors.” Harlow v. Fitzgerald, supra, 818-19.

In Harlow, however, the court went on to state: “By defining the limits of qualified immunity essentially in objective terms, we provide no license to lawless conduct. The public interest in deterrence of unlawful conduct and in compensation of victims remains protected by a test that focuses on the objective legal reasonableness of an official’s acts. Where an official could be expected to know that certain conduct would violate statutory or constitutional rights, he should be made to hesitate; and a person who suffers injury caused by such conduct may have a cause of action. But where an official’s duties legitimately require action in which clearly established rights are not implicated, the public interest may be better served by action taken ‘with independence and without fear of consequences.’ ” Id., 819.

*358I would reverse the summary judgment and remand the case to the trial court for further proceedings. Accordingly, I concur in part I of the majority opinion and dissent to part II, and I concur in part with Justice Borden’s dissent.

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 *26and 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 *27torts, 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 *28them 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

*29Our 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 *30generally 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, *31 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 *32id.; 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.

*33A

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 *34general 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.

*35B

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 *36 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 *37an 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 *38to 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 *39in 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, *40413 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) *41(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 . . . *42cases . . . 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 *43policy.”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 *44 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 *45would 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 *46has 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 *47dispute 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.

*48Accord 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 *49Court 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 *50alleged cognizable claims under the Connecticut constitution.23

*51The 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.

CALLAHAN, C. J.,

with whom NORCOTT and MCDONALD, Js., join, concurring in part and dissenting in part. I agree with the conclusion of part I of the majority opinion, in which the majority determines that a cause of action for damages to redress infringements of the rights protected by article first, §§ 7 and 9, of the Connecticut constitution does not exist by virtue of the open courts provision of article first, § 10.1 disagree, however, with the majority’s creation in part II of a new direct constitutional cause of action for damages. Because the cause of action created by the majority is not capable of providing the plaintiffs with any relief additional to that already available, I believe that its creation is an inappropriate exercise of judicial power. I , therefore, respectfully dissent from the conclusion reached by the majority.

Courts that have confronted the issue of creating a cause of action for damages to redress alleged infringements of a constitutional right generally have based *52their decisions on some combination of: (1) the reasoning of the United States Supreme Court in 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), and its progeny; and (2) the reasoning of § 874A of the Restatement (Second) of Torts. 4 Restatement (Second), Torts § 874A, p. 301 (1979); see, e.g., Kelley Property Development, Inc. v. Lebanon, 226 Conn. 314, 627 A.2d 909 (1993) (Bivens analysis); Brown v. State, 89 N.Y.2d 172, 674 N.E.2d 1129, 652 N.Y.S.2d 223 (1996) (Bivens and Restatement analyses). Although citing both Bivens and the Restatement as support, the majority relies primarily on the rationale of the Bivens line of cases for its creation of a cause of action for damages to redress infringements of the rights protected by article first, §§ 7 and 9. By way of reasoning, the majority asserts that: (1) the United States Supreme Court’s decision in Bivens to create a damages action to redress infringements of the rights protected by the fourth amendment was based on a distinction between a “special” or “unique” harm occasioned by the infringement of fourth amendment rights by federal agents and the harm occasioned by infringement of common-law rights by private individuals; and (2) this court’s determination in Kelley Property Development, Inc., that the Bivens rationale did not support creation of a damages action to redress infringements of state constitutional due process rights was based primarily on the doctrine of separation of powers. I disagree with both of those assertions. In my opinion, neither the Bivens rationale nor the Restatement supports the creation by this court, under the circumstances of this case, of a cause of action for damages to redress infringements of the rights protected by article first, §§ 7 and 9.

I

In Bivens, the plaintiff brought an action against federal narcotics agents in the United States District Court, *53alleging that the agents had arrested him unlawfully without a warrant or probable cause and that, as a result, he had suffered great humiliation, embarrassment and mental anguish. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, supra, 403 U.S. 389-90; see 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), rev’d, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971). In response to the defendants’ motion to dismiss, the District Court reasoned that federal officials who exceed the scope of their lawful authority act as private individuals rather than as government agents. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, supra, 276 F. Sup. 15; see Bell v. Hood, 71 F. Sup. 813, 816-17 (S.D. Cal. 1947). Because the fourth amendment to the federal constitution is not applicable to the actions of private individuals, the District Court concluded that the plaintiff had failed to state a cause of action arising under the federal constitution. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, supra, 276 F. Sup. 16. Moreover, the court determined that there was no alternate federal common-law basis; see Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938); Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, supra, 403 U.S. 400; or federal statutory basis for the plaintiffs requested relief. See Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, supra, 276 F. Sup. 13-14. Accordingly, the District Court concluded that the plaintiff had not stated a cause of action arising under the constitution or the laws of the United States and that, consequently, the court lacked subject matter jurisdiction over the plaintiffs claim. Id., 16; see also 28 U.S.C. § 1331 (a). The District Court, therefore, granted the defendants’ motion to dismiss. In the District Court’s view, the federal courts *54were unable to provide the plaintiff with a remedy for infringements by federal officials of his fourth amendment rights, and the state courts and state common-law causes of action were the only available means by which the plaintiff could seek redress for the alleged violation of his right, under the federal constitution, to be free from unreasonable search and seizure.

The Court of Appeals affirmed the District Court’s order dismissing the plaintiffs action, but did so on other grounds. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 409 F.2d 718 (2d Cir. 1969), rev’d, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971). In the view of the Court of Appeals, the defendants had acted as government agents rather than as private individuals. Id., 721 (“[t]he fact that the officers were acting in violation of the Fourth Amendment’s restraints upon governmental action does not belie the plain fact that they were acting as government officials, and not in a private capacity”).

Having concluded that the plaintiffs claim had arisen under the federal constitution and consequently was within the subject matter jurisdiction of the federal courts, the Court of Appeals then considered whether “the constitutional right against unreasonable search and seizure could be enforced by the [federal] courts through the medium of private damage actions.” Id. Because “[t]he [fourth] Amendment’s prohibition against unreasonable search and seizure had its origin in several English cases which were damage actions for trespass”; id.; the court concluded that “the common law action of trespass, administered ... by the state courts”; id.; was the enforcement medium the drafters of the federal constitution had contemplated. Noting that federal law provides injunctive relief and the exclusionary rule, two remedies that “substantially vindicate the interests protected by the [fourth] Amendment”; *55id., 725; the Court of Appeals declined to create a separate federal damages action. Id. In the court’s view, despite “their limited scope,” state common-law causes of action were the appropriate vehicles for seeking monetary redress; id.; and the fourth amendment served only to limit the extent to which federal agents could defend themselves in state court by asserting that their actions had been a valid exercise of federal power. See Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, supra, 403 U.S. 390-91.

On appeal to the United States Supreme Court, therefore, the case presented three distinct issues: (1) whether the plaintiffs complaint had presented a federal question and consequently was within the subject matter jurisdiction of the federal courts; (2) whether the fourth amendment only limited the extent to which federal officials could assert an immunity defense in state tort actions, or also gave rise to an independent federal cause of action; and (3) if so, whether money damages were available pursuant to that cause of action.1

Noting that the power possessed by federal agents “once granted, does not disappear like a magic gift when it is wrongfully used”; id., 392; the United States Supreme Court first determined that unconstitutional searches and seizures constitute government, rather than private, action, and that the plaintiffs complaint consequently was within the subject matter jurisdiction of the federal courts. Id.; see 28 U.S.C. § 1331 (a).

The United States Supreme Court next considered the defendants’ argument that the fourth amendment *56served only to limit the extent to which federal agents could assert an immunity defense in state tort cases. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, supra, 403 U.S. 390-91. Citing a case that involved an infringement of fourth amendment rights for which there may not have been a viable common-law cause of action, the court noted that “[a]n agent acting — albeit unconstitutionally — in the name of the United States possesses a far greater capacity for harm than an individual trespasser . . . .’’Id., 392; see Amos v. United States, 255 U.S. 313, 317, 41 S. Ct. 266, 65 L. Ed. 654 (1921) (consent to a warrantless search did not constitute a waiver of fourth amendment rights). Because “the Fourth Amendment operates as a limitation upon the exercise of federal power regardless of whether the State in whose jurisdiction that power is exercised would prohibit or penalize the identical act if engaged in by a private citizen”; Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, supra, 403 U.S. 392; the court determined that the defendants’ view that the fourth amendment served only to limit the defenses available to the federal agents in state common-law actions was “unduly restrictive.” Id., 391. Noting that the fourth amendment proscribes certain conduct that is not necessarily prohibited by state common law; id., 393; and that the interests protected by the fourth amendment do not necessarily dovetail with those protected by state common law; id., 394; the United States Supreme Court concluded that “the federal question [presented by the plaintiffs complaint is] not merely a possible defense to the state law action, but an independent claim both necessary and sufficient to make out [a federal] cause of action.” Id., 395.

Importantly, it was only after concluding that the plaintiffs complaint had stated a federal question and that the fourth amendment gave rise to an independent federal cause of action, that the United States Supreme *57Court turned to the issue of whether, in addition to equitable and declaratoiy relief, a damages remedy should be available in the federal action. Id., 395-96. Specifically, in determining whether a judicially created damages action would be appropriate, the court considered only whether Congress had provided an alternate federal remedy and whether there were other special factors that counseled against making an action for money damages available to the plaintiff. Id., 396-97. It is significant that because there is no general federal common law; see Erie Railroad Co. v. Tompkins, supra, 304 U.S. 64; a federal statute was the only possible alternate basis for federal judicial redress.

A

The majority asserts that the United States Supreme Court’s determination that damages should be available was based on a distinction between a special, unique harm occasioned by the infringement of fourth amendment rights by federal agents; see part II of the majority opinion; and the harm occasioned by infringement of common-law rights by private individuals. I disagree.

The United States Supreme Court did not conclude that the harm inflicted by infringements of fourth amendment rights is “special.” The court said that federal agents have a "greater capacity for harm”; (emphasis added) Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, supra, 403 U.S. 392; not that federal officials have a capacity for a greater harm. None of the examples2 the court used contrasting government and private intrusions suggests that the harm *58suffered in unlawful intrusions by federal officials is qualitatively different from the harm implicated in unlawful intrusions by private individuals. Instead, the examples merely illustrate the basis for the court’s conclusion that in addition to limiting the extent to which federal officials may assert defenses in state tort actions, the fourth amendment can give rise to an independent federal claim. Thus, Bivens does not support the majority’s conclusion that the injuries that result from unlawful intrusions by government officials are “substantially different in kind” from those that result from unlawful intrusions by private parties.

Moreover, the majority’s conclusion that unlawful intrusions by government officials implicate a “special” harm is not supported by either state or federal case law. Both this court and the federal courts have recognized 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. Virgo v. Lyons, 209 Conn. 497, 498-503, 551 A.2d 1243 (1988) (doctrine of collateral estoppel prevents plaintiff who seeks redress of injuries caused by unlawful intrusion by police officers from bringing separate state common-law action subsequent to litigation of plaintiffs federal constitutional claim; “[bjecause [a constitutional tort] provides a remedy in the form of damages for actual injuries suffered by reason of a violation of a plaintiff’s [fourth amendment] rights, it follows that the issue of damages for those same injuries cannot be relitigated in a state tort action” [emphasis in original and added]); *59see Memphis Community School District v. Stachura, 477 U.S. 299, 305-306, 106 S. Ct. 2537, 91 L. Ed. 2d 249 (1986); Smith v. Wade, 461 U.S. 30, 34, 103 S. Ct. 1625, 75 L. Ed. 2d 632 (1983); Carey v. Piphus, 435 U.S. 247, 253-55, 98 S. Ct. 1042, 55 L. Ed. 2d 252 (1978); see also State v. DeFusco, 224 Conn. 627, 637, 620 A.2d 746 (1993) (explicitly refusing to distinguish, for purposes of article first, § 7, between searches by police officers and searches by private individuals; “[w]e cannot countenance ... a rule” “that a person may harbor different expectations of privacy . . . as to different classes of intruders”).

Furthermore, in subsequent cases in which a plaintiff sought to extend the availability of a Bivens-type remedy to violations of federal constitutional rights other than those protected by the fourth amendment, the United States Supreme Court has not revisited either the government action-private action dichotomy or the existence of a greater capacity for harm. Instead, the court simply has cited to Bivens as the basis for the plaintiffs federal claim before going on to consider whether judicial creation of a direct action for monetary damages was appropriate. The court’s determination regarding the availability of a damages remedy has rested solely on the availability of an adequate alternate federal remedy and the existence of special factors that counsel against creating a money damages remedy. See, e.g., Bush v. Lucas, 462 U.S. 367, 374, 103 S. Ct. 2404, 76 L. Ed. 2d 648 (1983); Davis v. Passman, 442 U.S. 228, 245, 99 S. Ct. 2264, 60 L. Ed. 2d 846 (1979). The Bivens line of cases indicates, therefore, that in the view of the United States Supreme Court, it is the assertion of federal authority, not any special or unique harm resulting from the unlawful exercise of that authority, that gives rise to the need for a federal tort claim against federal officials for violations of federal constitutional rights.

*60B

The majority distinguishes the circumstances of the present case from those presented in Kelley Property Development, Inc., by characterizing our conclusion in Kelley Property Development, Inc., that the Bivens rationale did not support creation of a state constitutional due process tort as having been based primarily on the doctrine of separation of powers. See part II of the majority opinion. I disagree with that characterization for the following two reasons. First, it is not accurate. We expressly indicated in Kelley Property Development, Inc., that the existence of a state common-law cause of action capable of providing redress for the plaintiffs injuries is an important factor to be considered in determining whether creation of a constitutional tort would be an appropriate exercise of judicial power. Kelley Property Development, Inc. v. Lebanon, supra, 226 Conn. 340-41 (plaintiff would not necessarily have prevailed even in absence of alternate statutory remedy because common-law tortious interference with business expectancy action was possible alternate source of reliei). Second, we did not discuss separation of powers in Kelley Property Development, Inc., until after we had declined, because an alternate form of adequate relief was available to the plaintiff, to create a damages action. Id., 339 (“[t]his conclusion accords with the constitutional principle of separation of powers”). Although our decision in Kelley Property Development, Inc., not to create a constitutional tort accords with the doctrine of separation of powers, in my opinion it cannot fairly be said to have rested on or to have been required by that doctrine.

Narrowly viewing the existence of an alternate statutory remedy solely as a separation of powers issue and reasoning that only a legislatively created remedy should forestall judicial action, the majority concludes that the availability of alternate state common-law relief *61is of no relevance to the appropriateness of a judicially created state constitutional damages remedy. Here, too, I disagree.3 The Bivens line of cases indicates that the presence or absence of any alternate federal source of adequate relief is a significant factor to be considered in determining whether a federal constitutional damages remedy should be created. In Davis v. Passman, supra, 442 U.S. 245, for example, the United States Supreme Court cited the lack of any adequate alternate remedy as the basis for its decision to recognize a damages remedy for alleged violations of fifth amendment rights: “For Davis, as for Bivens, it [was] damages or nothing.” (Internal quotation marks omitted.) Id., 245. In contrast, in later Bivens-type cases in which some form of alternate federal redress was available, the United States Supreme Court declined to recognize a damages remedy. In Bush v. Lucas, supra, 462 U.S. 367, for example, the court distinguished the circumstances presented in that case from those presented in Bivens, noting that Bush, unlike Bivens, had a civil service remedy available to him. Id., 388 (“[t]he question [before this court, unlike the court in Bivens] is not what remedy the court should provide for a wrong that would otherwise go unre-dressed”[emphasis added]). The majority nevertheless relies on the United States Supreme Court’s omission *62of the existence of an alternate common-law remedy from the list of situations in which a federal Bivens-type remedy does not he; see part II of the majority opinion; McCarthy v. Madigan, 503 U.S. 140, 151, 112 S. Ct. 1081, 117 L. Ed. 2d 291 (1992); to support its conclusion that the existence of an alternate statutory remedy is relevant only because of the doctrine of separation of powers, and not because if there is an existing federal remedy, the would-be Bivens plaintiff is already able to “seek the protection” of federal law and consequently there is no need to create a federal Bivens-type remedy. I do not believe that the United States Supreme Court’s omission of the existence of nonexistent federal common-law remedies from the list articulated in McCarthy provides plausible support for the proposition that the court included statutory remedies only because of the principle of separation of powers.

C

In its current configuration, therefore, the Bivens line of United States Supreme Court cases appears to require a would-be Bivens plaintiff to establish as a threshold matter that he or she would lack an adequate federal remedy if a federal constitutional damages remedy were not created by the court. See Kelley Property Development, Inc. v. Lebanon, supra, 226 Conn. 337-38. By analogy, therefore, in the present case, the Bivens rationale supports creation of a state constitutional damages remedy based on a violation of article first, §§ 7 and 9, only if the plaintiffs would lack an adequate state remedy if such a damages remedy were not created.

Counts three and four of the plaintiffs’ complaint allege that the defendants violated the rights of Joseph Binette under article first, §§ 7 and 9, of the state constitution by entering his home without a warrant and by using excessive and unreasonable force against him. *63The injuries that Joseph Binette attributes to the defendants’ allegedly unconstitutional conduct include an epileptic seizure, a concussion, headaches, soft tissue trauma, medical care expenses, legal expenses, damage to his reputation and emotional trauma.4

Unlike Bivens, however, Joseph Binette would not have lacked an adequate remedy for those injuries if a constitutional remedy was not created. The complaint states several common-law causes of action that are based on the conduct that he alleges in counts three and four. Relevant to this analysis are count thirteen, which alleges wrongful arrest, counts five and six, which allege assault and battery, and counts nine and ten, which allege intentional infliction of emotional distress.5 Those common-law causes of action are capable of providing complete redress for the injuries Joseph Binette claims to have suffered as a result of the defendants’ alleged violations of his state constitutional rights.

By including a cause of action based on wrongful arrest, Joseph Binette implicitly has acknowledged that state common law is capable of fully redressing his alleged injuries. “False imprisonment, or false arrest, is the unlawful restraint by one person of the physical liberty of another.” Green v. Donroe, 186 Conn. 265, 267, 440 A.2d 973 (1982); see Outlaw v. Meriden, 43 Conn. App. 387, 392, 682 A.2d 1112, cert. denied, 239 Conn. 946, 686 A.2d 122 (1996). “Damages for false *64imprisonment. . . are not limited to easily determined special damages such as attorney’s fees or loss of time from work. Damages are also designed to compensate for intangible injuries such as mental anguish, humiliation, embarrassment, mortification, shame, fear, and damage to reputation.” Wochek v. Foley, 193 Conn. 582, 588, 477 A.2d 1015 (1984).

Wrongful arrest, moreover, is not the only common-law cause of action capable of providing full redress. Joseph Binette has raised viable battery and intentional infliction of emotional distress claims as well. In order to recover damages under the theory of battery, he need show only that (1) the defendants’ conduct is actionable, (2) the defendants intended that conduct, and (3) the defendants’ conduct caused his injuries. W. Prosser & W. Keeton, Torts (5th Ed. 1984) § 9, pp. 39-41; see Lombardi v. Groton, 26 Conn. App. 157, 159, 599 A.2d 388 (1991), cert. denied, 221 Conn. 908, 600 A.2d 1361 (1992) (affirming award of damages for, inter alia, battery by police officers); Gutowski v. New Britain, 165 Conn. 50, 53-54, 327 A.2d 552 (1973) (assault and battery action against police officers; compensatory damages awarded for officers’ use of excessive force). Furthermore, in order to prevail under the theory of intentional infliction of emotional distress, Joseph Binette must show only that: (1) the defendants should have known that their conduct likely would cause him to suffer emotional distress; (2) the defendants’ conduct caused him to suffer severe emotional distress; and (3) the defendants’ conduct was extreme and outrageous. See DeLaurentis v. New Haven, 220 Conn. 225, 266-67, 597 A.2d 807 (1991). The seizure that Joseph Binette allegedly suffered as a result of the defendants’ conduct is evidence of severe emotional distress, and the defendants’ alleged use of clearly excessive force, if believed, is evidence of extreme and outrageous conduct. See Lombardi v. Groton, supra, 160. Thus, Joseph Binette *65has pleaded three common-law causes of action that are capable of providing complete relief for his alleged injuries.

Like Joseph Binette, Janet Binette would not have lacked an adequate remedy for the injuries she attributes to the defendants’ alleged violations of her state constitutional rights if a state constitutional remedy was not created. Counts sixteen and seventeen of the complaint allege that the defendants violated Janet Binette’s rights under article first, §§ 7 and 9, of the state constitution by entering her home without a warrant, by threatening her with arrest and imprisonment and by forcefully pushing her, causing her to fall against a wall and over a table. The injuries that Janet Binette attributes to that conduct are mental pain and suffering, fear of injuiy, anguish, emotional trauma and discomfort.

The complaint states several common-law causes of action that are based on the conduct that Janet Binette alleges in counts sixteen and seventeen. Relevant to this analysis are count eighteen, which alleges assault and battery, and count twenty, which alleges intentional infliction of emotional distress.6 As noted earlier, those causes of action are capable of fully redressing the injuries that Janet Binette claims to have suffered.

In summary, Connecticut’s common law provides both plaintiffs with causes of action that are capable of providing not only adequate, but complete redress for any injuries that they prove are attributable to the defendants’ conduct. Accordingly, the rationale of the United States Supreme Court in the Bivens line of cases does not support judicial creation, under the circumstances of this case, of a cause of action for damages *66based directly on an. alleged violation of article first, §§ 7 and 9, of the state constitution.

II

The rationale of § 874A7 of the Restatement (Second) similarly does not support creation of a constitutional damages action. Section 874A sets forth a two-pronged test for determining if judicial creation of a direct constitutional damages remedy is appropriate: (1) a damages remedy must further the purpose of the constitutional provision; and (2) the remedy must be necessary to assure the effectiveness of the provision. 4 Restatement (Second), supra, § 874A, p. 301.

I do not believe that a judicially created damages remedy is necessaxy, under the present circumstances, to assure the effectiveness of article first, §§ 7 and 9. As previously discussed, the damages remedy that the majority has created does not provide either of the plaintiffs with any relief to which they would not be entitled at common law. Because it cannot provide additional relief, the constitutional damages remedy is not a meaningful deterrent to future constitutional infringements, and, consequently, it neither furthers the purpose of article first, §§ 7 and 9, nor is necessary to assure their effectiveness. Accordingly, § 874A does not support judicial creation of a cause of action based directly on article first, §§ 7 and 9, of oxrr state constitution in this instance.

*67III

My objection to the creation, in this case, of a damages action based on article first, §§ 7 and 9, is not founded solely on the lack of support provided by the Bivens line of cases and § 874A of the Restatement (Second). More important, I also believe that its creation is an inappropriate exercise of judicial power for the following reasons.

First, the only way to reconcile the result in Kelley Property Development, Inc., with that reached by the majority8 is to conclude that although certain constitutional injuries, particularly those arising under article first, §§ 7 and 9, are “special,” others, such as those resulting from infringements of the due process protections of the state constitution, are not. I do not agree with that proposition. I reiterate that the distinction the United States Supreme Court recognized in Bivens between infringements of fourth amendment rights and infringements of state common-law rights cannot bear the weight the majority has placed on it. As noted earlier, the court’s statement that federal agents possess *68a “greater capacity for harm”; Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, supra, 403 U.S. 392; was made for the purpose of asserting subject matter jurisdiction over a federal claim, not for the purpose of distinguishing the nature of the injury occasioned by infringement of fourth amendment rights from that of the harm caused by infringement of other legal rights. See S. Bandes, “Reinventing Bivens: The Self-Executing Constitution,” 68 So. Cal. L. Rev. 289, 325 (1995) (“Bivens rejected the argument that a [federal] suit by a citizen against a federal agent unconstitutionally exercising his authority is no different from a state law suit between two private parties. It recognized that federal rights are worthy of protection on their own terms.”).

Second, the majority concludes that because of the “special” harm occasioned by infringements of article first, §§ 7 and 9, a constitutional tort is needed to effectuate “our citizenry’s interest in a remedy that enables them to seek fair and meaningful compensation for injuries arising from deprivations of constitutional magnitude.” See part II B of the majority opinion. Implicit in that conclusion is the assumption that the compensation potentially available to the plaintiffs pursuant to common-law causes of action would not constitute “fair and meaningful” redress. The common-law causes of action for false arrest, battery and intentional infliction of emotional distress, however, are capable of providing the plaintiffs with complete monetary compensation for their alleged injuries. The “specialness” that the majority attributes to the injuries that result from a police officer’s unconstitutional invasion of a person’s home, therefore, must be based on a qualitative, rather than quantitative, difference between those injuries and injuries that result from an unlawful intrusion by a private individual. Attempting to illustrate how the injuries that result from an unlawful invasion by a police *69officer are “substantially different, in kind”; (emphasis added) Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, supra, 403 U.S. 392; from those that result from an unlawful intrusion by a private individual, the majority notes that an unlawful invasion by a police officer 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.” See part II B of the majority opinion. In effect, the majority explains that such injuries are “substantially different in kind” because they are different,. I agree that “abuse of [police] authority, with its concomitant breach of trust”; id.; can cause emotional and psychological injuries that are of a greater magnitude than those that normally result from an unlawful private intrusion. I do pot agree, however, that the common-law cause of action for intentional infliction of emotional distress is incapable of providing “fair and meaningful” compensation for the increased emotional and psychological injuries that can result from an unconstitutional intrusion by a police officer.

Moreover, the fact that the plaintiffs’ injuries allegedly resulted from an infringement of “constitutional magnitude” does not indicate that the damages potentially available to the plaintiffs pursuant to common-law causes of action would not constitute “fair and meaningful compensation.” Compensatory damages are designed to enable an aggrieved party to obtain complete compensation for injuries actually caused by an infringement of a legal right, not to enable an aggrieved party to obtain some amorphous compensation for the infringement itself. W. Prosser & W. Keeton, Torts (5th Ed. 1984) § 1, pp. 5-6, § 2, p. 7 and § 4, p. 20. In order to obtain compensatory damages, a plaintiff must establish not only a breach of a legal duty, but *70also causation and harm. Id., § 7, p. 31. In federal constitutional tort actions, damages are designed to redress injuries caused by deprivations of federal constitutional rights, not to redress the deprivations of such rights. Memphis Community School District v. Stachura, supra, 477 U.S. 307-308. The abstract value of infringement of a constitutional right does not support meaningful compensatory damages. Id., 308-10; Carey v. Piphus, supra, 435 U.S. 253-54; Virgo v. Lyons, supra, 209 Conn. 504. I do not believe, and I have been unable to find any authority for the proposition that a separate action for damages should be available to compensate for the abstract value of an infringement of “constitutional magnitude.”

Furthermore, noting that “[a] police officer’s legal obligation . . . 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”; (emphasis in original); the majority concludes that it is “manifest” that a police officer’s breach of the officer’s constitutional duty implicates a unique harm. See part II B of the majority opinion. The crux of the majority’s argument appears to be, therefore, that it is a difference between a police officer’s constitutional duty and his or her common-law duty that makes the harm unique. The injury that a person sustains as a result of a tortfeasor’s unlawful action, however, is dependent not on the legal appellation or the contours of the duty that has been breached, but on the effect that the breach has had upon the victim. Even if we assume, arguendo, that it is somehow possible to distinguish the actual effect that unlawful conduct has had upon a person solely on the basis of the duty that has been breached, our conclusion in Virgo v. Lyons, supra, 209 Conn. 502, that the interests protected by the fourth amendment are similar to the interests protected by the relevant common-law torts *71undercuts the majority’s reliance on a distinction between those interests to demonstrate how an injury that results from a police officer’s unlawful conduct substantially differs, not in magnitude, but in kind, from the injury that results when a private individual engages in identical conduct, thereby giving rise to the need for a constitutional tort. The majority attempts to reconcile its position with our conclusion in Virgo by asserting that the question of whether a police officer’s breach of his constitutional duty gives rise to a unique harm is separate and “altogether different” from the question presented in Virgo. We explicitly noted in Virgo, however, that when “ ‘the interests protected by a particular branch of common law torts . . . parallel closely the interests protected by a particular constitutional right’ . . . it is appropriate to apply the tort rules of damages directly to the [constitutional claim], thereby compensating the plaintiff for any actual injury he can prove.” (Emphasis added.) Id., 505-506. I wonder whether the majority decision augurs the development of an “altogether different” system for determining the damages available, pursuant to the newly created constitutional tort, to redress the unique harm that the majority attributes to a police officer’s unconstitutional conduct.

Third, the majority does not provide a workable framework for identifying which constitutional infringements give rise to “special” harms and which do not; nor do I believe that one exists. I cannot comprehend a principled basis for concluding, for example, that the harm that results from either the infringement of the constitutional right to “a public school education that is not substantially impaired by racial and ethnic isolation”; Sheff v. O’Neill, 238 Conn. 1, 24, 678 A.2d 1267 (1996); or the infringement of constitutional free speech rights is less “special” than the harm that results from the infringement of the constitutional right to be *72free from unreasonable search and seizures. Does the majority decision then portend direct constitutional actions for money damages to redress alleged infringements of those rights?

Fourth, the majority appears to adopt a broad presumption in favor of recognizing constitutional torts to remedy the “special” harms that result from infringements of “constitutional magnitude.” See part IIB of the majority opinion (“the critical factors that persuaded us to reject a state Bivens-type remedy in Kelley Property Development, Inc., are absent here”). The majority, however, does not provide a’ principled basis for determining when “critical factors” are sufficiently compelling to overcome that broad presumption. For example, does the possibility that recognition of a constitutional tort might result in significant additional litigation not only support; see Kelley Property Development, Inc. v. Lebanon, supra, 226 Conn. 342; but also justify a decision not to recognize such a tort? In my view, it cannot properly be considered a compelling countervailing consideration. “[L]imitations upon the effective functioning of the courts arising from budgetary inadequacies should not be permitted to stand in the way of the recognition of otherwise sound constitutional principles.” Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, supra, 403 U.S. 411 (Harlan, J., concurring). Similarly, does the fact that recognition of a constitutional tort might result in additional avenues of liability not only support; see Kelley Property Development, Inc. v. Lebanon, supra, 342; but also justify a decision not to recognize a damages remedy? I do not believe that it can properly be considered a compelling countervailing consideration. “[I]f financial expense alone were such a factor, then by definition there could never be a Bivens type action for damages because a successful action for damages means financial expense for the defendants.” Id., *73349 (Borden, J., dissenting). Further, although the nature of a defendant’s official duties may support a decision not to recognize a damages remedy; id., 342; in my opinion, concerns of that nature are more appropriately characterized as issues of immunity rather than as compelling countervailing considerations to constitutional tort liability. See id., 350 (Borden, J., dissenting). It occurs to me that perhaps we are abandoning the only easily definable, objective “critical factor” militating against a proliferation of constitutional tort claims by allowing such claims even when there are existing common-law actions capable of providing adequate relief.9

Having allowed these plaintiffs, who have alternate common-law causes of action capable of providing them with complete redress, a constitutional cause of action that gives them nothing more than symbolic *74relief, we will, I believe, be hard pressed, under the majority’s rationale, to decline to recognize analogous actions to redress infringements of other provisions of our state constitution. “Prudence and sensitivity to the constitutional authority of coordinate branches of government,” however, counsel caution in the exercise of judicial authority to fashion remedies for constitutional deprivations. Sheff v. O’Neill, supra, 238 Conn. 46. “In construing the contours of our state constitution, we must exercise our authority with great restraint in pursuit of reaching reasoned and principled results.” (Internal quotation marks omitted.) Moore v. Ganim, 233 Conn. 557, 581, 660 A.2d 742 (1995). As a general rule, “[t]he task of evaluating the pros and cons of creating judicial remedies for particular wrongs is a matter for . . . the legislature] . . . .” (Internal quotation marks omitted.) Carlson v. Green, 446 U.S. 14, 36, 100 S. Ct. 1468, 64 L. Ed. 2d 15 (1980). The majority itself acknowledges that “we ordinarily ‘eschew unnecessary determinations of constitutional questions’ ” and that “[w]e generally have applied this rule . . . when we have been able to decide a case either on the basis of an established common-law principle ... or in reliance on a statutory provision.” (Emphasis in original.) See footnote 9 of the majority opinion. As a threshold matter, therefore, I would require any would-be state constitutional tort plaintiffs to establish that neither our statutory nor our common law is capable of providing them with adequate relief. Furthermore, in cases in which our law is not capable of doing so, I would exercise our power to create a damages cause of action only if such an action is necessary to effectuate the constitutional provision at issue. Neither condition has been satisfied in the present case. I, therefore, respectfully dissent, and would answer the certified question in the negative.

*75BERDON, J.,

concurring in part and dissenting in part. I join part II of the majority opinion, which concludes that we should recognize a common-law cause of action for violations of 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, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971). I pointed out in my concurring and dissenting opinion in Kelley Property Development, Inc. v. Lebanon, 226 Conn. 314, 353-54, 627 A.2d 909 (1993), the following: “It is clear to me that when the government violates an individual’s state constitutional right, that individual should be made whole. Otherwise, the right would be an empty and meaningless one. To say that government should pay its way and bear the costs of its transgressions is like saying that people should tell the truth, earn their keep, and pay their debts. We can imagine exceptions to each of these maxims, circumstances under which we might be prepared to suspend their force, but they remain foundation stones of our moral order. [P. Schuck, Suing Government (1983) p. 112]. J. Friesen, ‘Recovering Damages for State Bills of Rights Claims,’ 63 Tex. L. Rev. 1269 (1985). The reasoning employed in [Bivens], which holds that a cause of action for damages is available for violation of the Fourth Amendment, is also applicable to violations of state constitutional rights. [W]here 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. Bell v. Hood, 327 U.S. [678, 684, 66 S. Ct. 773, 90 L. Ed. 939 (1946)]. [Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, supra], 392.” (Internal quotation marks omitted.)

Nevertheless, I would not reach the issues raised in part I of the majority opinion because it is not necessary in view of our conclusion with respect to the Bivens *76resolution in part II. Whether article first, § 10, of the state constitution provides for a cause of action for damages caused by the defendants’ violations of specific other provisions of our state constitution should be left for another day.1

Accordingly, I disagree with part I of the majority opinion and concur with part II.

KATZ, J.,

concurring in part and dissenting in part. I join in part II of the majority opinion but write separately because I disagree with the analysis in part I.

The plaintiffs contend that we should recognize a damages remedy to redress violations of rights protected under article first, §§ 7 and 9, of our state constitution. They advance two alternative bases for a damages remedy: (1) Connecticut common law, prior to 1818, provided damages for the violation of rights that were substantially similar to the constitutional rights they allege were violated and, therefore, according to Kelley Property Development, Inc. v. Lebanon, 226 Conn. 314, 331-33, 627 A.2d 909 (1993), article first, § 10, of the Connecticut constitution incorporates a constitutionally based damages remedy; and (2) we should infer a common-law cause of action from article *77first, §§ 7 and 9, 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).

There are two parts to the analysis of the plaintiffs’ first claim. The first question is whether our early common law permitted damages actions against government officials for violating rights analogous to those now protected by article first, §§ 7 and 9, of our state constitution. If the answer to that question is yes, the second part of the analysis depends upon whether proper recognition of these fundamental constitutional rights requires that their violation be vindicated directly under the state constitution or whether an alternative common-law or statutory remedy will suffice. The majority recognizes that fundamental rights, which existed at common law prior to 1818, and which were also codified separately in our state constitution under article first, §§ 7 and 9, are directly involved in this case. The majority, however, reaches out to hold that article first, § 10, of the state constitution does not guarantee the plaintiffs the right to bring a claim directly under article first, §§ 7 and 9. I agree with the majority as to the first part of the analysis but would not close the door to recognizing a direct constitutional remedy.

Connecticut’s first constitution, adopted in 1818, formally established our governmental structure and included a declaration of rights to safeguard individual liberties. The declaration of rights appeared in article first, §§ 1 through 21, of the 1818 constitution. Article first, §§ 8 and 10, concerning, respectively, searches and seizures and arrests, were identical to their current counterparts, article first, §§ 7 and 9. Connecticut, however, had a declaration of rights and a “constitution,” as this term was understood at the time, dating from the first half of the seventeenth century. C. Collier, “The Connecticut Declaration of Rights Before the Constitution of 1818: A Victim of Revolutionary Redefinition,” *7815 Conn. L. Rev. 87 (1982). This “constitution of government,” which was unwritten, incorporated common-law principles and practices, various significant statutes, the Fundamental Orders of 1639, and the Charter of 1662; id., 89; and embodied “the practice and customs of a society that are generally agreed upon as immutable, or at least as not suddenly mutable by a mere General Assembly.” W. Horton, “Connecticut Constitutional History 1776-1988” in Connecticut’s Four Constitutions (H. Cohn & W. Horton eds., 1988) p. 18; see also C. Collier, supra, 89.

During the preconstitutional period, individual rights, including the right to be free from the abuse of governmental power, were highly valued and well protected. Zephaniah Swift, a former chief justice and author of our state’s first legal text, noted in 1795 that the right of personal liberty was “sacred and inestimable” and that “without [it] all others [were] of little value . . . .” 1Z. Swift, A System of the Laws of the State of Connecticut (1795) p. 180. Swift confirmed that governmental power emanated from the people; id., p. 59; and noted, moreover, that “[n]o individual, or body of men, have a discretionary, or arbitrary power to commit any person to prison; no man can be restrained of his liberty ... or be in any way imprisoned, or confined, unless by virtue of the express laws of the land. These laws are so clear and explicit, that it is in the power of every man to avoid breaking them . . . .” Id., p. 180.

The earliest of these “clear and explicit” laws protecting individual rights was the declaration of rights, which appeared in the preamble to Connecticut’s first statutory code, Ludlow’s Code of 1650. See C. Collier, supra, 15 Conn. L. Rev. 91-93. Although it was statutory in form, the declaration was “treated by both the legislature and the people as standing above ordinary statutes. The Declaration and supplementary statutes relating to individual rights were grounded in the Connecticut *79common law and viewed as inviolate.” Id., 94; see, e.g., Hall v. Hall, 1 Root (Conn.) 120, 121 (1789) (“no man’s person shall be arrested or imprisoned, for any debt ... if sufficient means of satisfaction can otherwise be lawfully found from his estate . . . but, if no such satisfaction can be found, his person may be arrested and imprisoned”). “Abridgements perpetrated by the government were considered void on their face and courts were to refuse to enforce them.” C. Collier, supra, 94; see also State v. Lamme, 216 Conn. 172, 179, 579 A.2d 484 (1990). The declaration of rights changed little from 1650 through 1818, notwithstanding a number of code revisions. C. Collier, supra, 94.

During the thirty years preceding Connecticut’s constitution, however, confidence in the common law’s ability adequately to safeguard individual rights gradually eroded as post-Revolutionary leaders embraced a different, political ideology than had their pre-Revolu-tionary counterparts. Id., 87. Although in 1787, Connecticut’s pre-Revolutionary delegates to the federal constitutional convention opposed a bill of rights, confident that strong state governments would protect individual rights, by 1818, the majority of Connecticut’s new generation of leaders recognized the need for constitutional guarantees of individual rights. Id., 95.

Plaintiffs sought protection at common law for individual rights by using traditional common-law forms of pleading because only a limited number of causes of action existed at the time to redress private wrongs. Despite the use of traditional tort nomenclature, both this court and commentators have recognized that these cases were early common-law antecedents of our constitution. One commentator explained that early Connecticut cases reached “ ‘constitutional’ results by reference to ordinary common law explication”; E. Peters, “Common Law Antecedents of Constitutional Law in Connecticut,” 53 Alb. L. Rev. 259, 262 (1989); *80and noted that “[t]he common law trappings of the cases undoubtedly explain why the court’s opinions resonate in common law terms. Nonetheless, the case law demonstrates a striking resemblance between some of the ‘constitutional’ issues with which we struggle today and some of the ‘common law’ issues with which the court struggled two hundred years ago.” Id., 264. Peters cited Grumon v. Raymond, 1 Conn. 39 (1814), as an example of such a case. Although brought as a false imprisonment action, Grumon actually redressed the violation of the right, now given constitutional protection, to be free from unreasonable searches and seizures. E. Peters, supra, 263; see also State v. Oquendo, 223 Conn. 635, 652, 613 A.2d 1300 (1992) (stating that early false imprisonment actions were “common law antecedents of article first, §§ 7 and 9, of our constitution”).1

*81As this discussion demonstrates, our early common law permitted damages actions against government officials for violating rights analogous to those now protected by article first, §§ 7 and 9, of our state constitution. Furthermore, these early cases vindicated rights, deeply rooted in our state’s past and well protected at common law, which were viewed as fundamental long before they became constitutionally incorporated.

In deciding that the plaintiff may properly bring a state Bivens claim for a violation of article first, §§ 7 and 9, the majority recognizes the fundamental rights at stake in this case, and the special harm likely to result from unlawful police conduct. The majority, quoting Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, supra, 403 U.S. 392, stated 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.’ ”

Nevertheless, despite the language in Kelley Property Development, Inc. v. Lebanon, supra, 226 Conn. 333, suggesting that article first, § 10, of the Connecticut constitution incorporates a constitutionally based damages remedy, the majority concludes that the open courts provision contained in article first, § 10, of our state constitution does not ensure the existence of that remedy through a direct cause of action under article first, §§ 7 and 9.1 fail to understand why, in light of the majority’s decision recognizing a Bivens common-law cause of action under article first, §§ 7 and 9, the majority reaches the plaintiffs’ claim under article first, § 10, particularly when to reject the open courts claim, the *82majority has had to step back from the test we applied in Kelley Property Development, Inc.

The plaintiff in Kelley Property Development, Inc., claimed that, because a common-law damages action existed prior to 1818 to redress the violation of rights analogous to due process rights, article first, § 10, ensured the continued existence of such a damages remedy. Id., 332. We determined, however, that the early cases relied upon by the plaintiffs awarded damages for a statutory violation, rather than “a violation of a fundamental common law principle that we would now characterize as having constitutional significance.” Id. We stated that, “[i]n the absence of a clear indication . . . that the damages awards in those cases redressed rights akin to fundamental constitutional rights, we decline to read these cases as establishing a common law precedent for the existence of a constitutional claim for damages . . . .” Id., 333. We concluded that the plaintiff “failed to establish that, in the circumstances of this case, a damages action for the violation of a quasi-constitutional right existed at common law in Connecticut prior to 1818 and thereby became incorporated into the state constitution by virtue of article first, § 10.” Id.

In this case, the plaintiffs contend that Kelley Property Development, Inc., stands for the proposition that a damages claim may be brought directly under the state constitution for the violation of state constitutional rights if: (1) our pre-1818 common law awarded damages to vindicate analogous rights; and (2) such rights were understood at the time to be fundamental. The majority disagrees and, indeed, expressly rejects this constitutional principle, concluding that the plaintiffs in the present case have not sufficiently demonstrated why the constitutional principle articulated in Gentile v. Altermatt, 169 Conn. 267, 286, 363 A.2d 1 *83(1975), appeal dismissed, 423 U.S. 1041, 96 S. Ct. 763, 46 L. Ed. 2d 631 (1976), supports their ability to bring a claim under the state constitution. Although a majority of the court is not convinced that a direct constitutional action exists under article first, § 10, to vindicate the fundamental rights at issue in this case, I believe it imprudent and unnecessary to close that door.2

Although we did not hold explicitly in Kelley Property Development, Inc., that a claim for damages under the state constitution could be brought where both predicates of the test enunciated therein have been satisfied, both our reliance on the open courts provision and our analysis in that case implicitly recognized the existence of a remedy for violations of state constitutional rights. In light of our reliance on Gentile v. Altermatt, supra, 169 Conn. 286-87, and its use of the open courts provision to prevent legislative abrogation of constitutionally incorporated rights, an argument could be made that, under that provision, the legislature has less leeway to modify fundamental rights than it would have with respect to other rights recognized under the common law. Furthermore, just as those rights are entitled to greater protection from legislative intervention than other, less important common-law rights, one could argue that these fundamental rights should be recognized as having an enhanced status by virtue of their incoiporation into the state constitution.

*84Today, the majority recognizes a Bivens common-law cause of action for damages to redress alleged infringements of a constitutional right. Nevertheless, the majority unnecessarily reaches out to close the door on a claim to a direct constitutional action. Our traditional jurisprudence is to decide constitutional issues as alast resort. The majority, however, offers no persuasive reason to depart from our “recognized policy of self-restraint and the basic judicial duty to eschew unnecessary determinations of constitutional questions.” Negron v. Warden, 180 Conn. 153, 166, 429 A.2d 841 (1980). This principle generally has been the basis for declining to reach constitutional issues where there have existed alternative nonconstitutional grounds for deciding an appeal. See, e.g., State v. Lopez, 239 Conn. 56, 57 n.1, 681 A.2d 950 (1996) (violation of declaration against penal interest exception to hearsay rule); State v. Gold, 180 Conn. 619, 639, 431 A.2d 501, cert. denied, 449 U.S. 920, 101 S. Ct. 320, 66 L. Ed. 2d 148 (1980) (same); Negron v. Warden, supra, 180 Conn. 166 (violation of Practice Book § 531); State v. Certain Contraceptive Materials, 126 Conn. 428, 434, 11 A.2d 863 (1940) (proceeding unauthorized under search warrant statute).3 I see no reason in this case to deviate from that policy.

Accordingly, I dissent from the decision reached by the majority on the first issue and concur with its decision on the second issue.

*85MCDONALD, J.,

concurring in part and dissenting in part. I concur with Chief Justice Callahan’s concurring and dissenting opinion.

The majority opinion’s chilling effect on law enforcement officers is unreasonable, dangerous, and obstructs the government’s constitutional responsibility to “insure domestic Tranquility” and provide for the public safety. U.S. Const., preamble; see United States v. Kelner, 534 F.2d 1020, 1026 (2d Cir. 1976). Police officers are often called upon, alone and in danger, to make split second decisions to conduct searches to protect the public’s safety or their own. They may rely upon United States Supreme Court decisions and yet be forced to pay damages for intricate state constitutional violations. Police officers should not face the choice between being carried by six pall bearers or having a like number of jurors take away their home.