Tuesday, May 26, 2009

Did the Supreme Court wipe out supervisory liability in Section 1983 cases? It sure looks that way

For obvious reasons, the Supreme Court's decision last week in Ashcroft v. Iqbal, 2009 WL 1361536 (May 18, 2009), generated a lot of media attention since it got John Ashcroft and former FBI director Robert Mueller off the hook in a claim arising from detainee abuse in the post-9/11 environment. But tucked away in the decision is another holding that has serious consequences for routine Section 1983 claims.

Most of the Courts of Appeal have recognized some form of supervisory liability under Section 1983. Of course, under settled Supreme Court authority, Monell v. Department of Social Services, 436 U.S. 658 (1978), there is no respondeat superior liability in these cases. In other words, a supervisor is not guilty of civil rights violations solely by virtue of his position as supervisor. But at least in the Second Circuit, supervisors could still be held liable if they knew their subordinates were committing a civil rights violation and they looked the other way or ignored it. Here's the precise test the Court of Appeals has repeatedly set forth in these cases, as taken from Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995):

“It is well settled in this Circuit that ‘personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under Section 1983.’” The personal involvement of a supervisory defendant may be shown by evidence that: (1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring. Id.

That language in Colon v. Coughlin has been cited frequently in the Second Circuit. Before the Supreme Court in Iqbal rejected the Complaint's allegations against Mueller and Ashcroft on grounds that the allegations were not plausible under the new standard outlined in Twombly v. Bell Atlantic, 550 U.S. 544 (2008), it paused to reject the Complaint's allegations that these defendants were liable because of their "knowledge and acquiescence in their subordinates' use of discriminatory criteria to make classification decisions among detainees."

Citing a few of its precedents which hold that constitutional discrimination claims require "discriminatory purpose," the Court breathes new life into Personnel Administrator of Mass. v. Feeney, 442 U.S. 256 (1979), which held that purposeful discrimination requires more than "intent as volition or intent as awareness of consequences" and that the decisionmaker must undertake a course of action "because of, not merely in spite of, the action's adverse effects upon an identifiable group." The Feeney precedent, together with Monell, means that supervisory liability cannot attach under Section 1983. In fact, the Supreme Court holds, "In a Section 1983 suit or a Bivens action -- where masters do not answer for the torts of their servants -- the term 'supervisory liability' is a misnomer. Absent vicarious liability, each Government official, his or her title notwithstanding, is only liable for his or her own misconduct."

As the various circuit courts have long recognized some form of supervisory liability over the years, it is odd that the Supreme Court would reject that theory of liability in such a relatively cursory manner. Is supervisory liability under Section 1983 gone for good? It sure looks that way.

To really gain a sense of what happened to supervisory liability, read Justice Souter's dissent. This was a 5-4 decision, by the way. Souter points out that the government in this case actually conceded that Ashcroft and Mueller could be liable under some form of supervisory liability if the Complaint properly alleged facts that would implicate them (the government argued that the Complaint was deficient, and the Supreme Court agreed). Despite that concession, and the fact that none of the parties even briefed the issue of whether Section 1983, should recognize some form of supervisory liability, the Supreme Court resolved the issue anyway.

Making matters even more curious, the Supreme Court did not even have to rule on the legality of supervisory liability under Section 1983 because it also ruled against the plaintiff on a separate basis: that the Complaint did not allege a plausible claim against Ashcroft and Mueller. In chastising the majority for jumping the gun on this issue, Souter notes that the Second Circuit and other federal courts have long recognized this theory of liability but that the five Justice majority has effected a significant change in Section 1983 liability: "Lest there be any mistake, ... the majority is not narrowing the scope of supervisory liability; it is eliminating Bivens supervisory liability entirely."


Anonymous said...

as in triola v. snow, supervisory liability attached because the upper tier of corp. had knowledge of the violations when letters were written. does this mean that the managers of government agency, as opposed to the director of the FBI, etc. are no longer liable in the general corporate? what about the lower tier of managers? they are closer to the battle and interact with all actors. it seemed the new exception is directed at the Secretary of Army, etc. not the generals. I'm pro se so I don't understand all the details. In any case, how does this effect a local actor as opposed to, say, the mayor?

Hoghopper said...

Don't you think that the language you discuss merely reflects the underlying constitutional standard at issue before the Court in Iqbal?

Where liability for a constitutional violation requires specific intent -- as in the context of First Amendment violations -- then it makes sense to require the supervisory official to have the same intent before imposing liability. That's all that Iqbal said.

On the other hand, where the underlying constitutional interest carries a lower standard (e.g., deliberate indifference), then requiring the supervisor to have only the culpability necessary for liability under the lower standard seems appropriate. I don't think Iqbal threatens that principle.

By the way, your circuit's standard is pretty insane and would likely run afoul of Iqbal if any one of those factors may support supervisory liability in any constitutional case.