Some supervisory liability survives Iqbal

When the Supreme Court issued the now-famous Iqbal decision in 2009, all eyes were on the Court's new "plausibility" test for assessing federal complaints, a standard that made it harder for lawsuits to get out of the starting gate. But another aspect of Iqbal was its apparent rejection of supervisory liability under 42 USC sec. 1983. It now appears that supervisory liability is not dead, though it is gasping for air.

The case is D'Olimpio v. Crisafi, 2010 WL 2428128 (SDNY June 15, 2010), decided by Judge Rakoff. D'Olimpio was arrested because the police thought he was abusing prescription drugs. He sues for malicious prosecution and alleges, in part, that the City's supervisory police officials did not properly reign in another officer, Crisafi.

In Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009), the Supreme Court noted the well-worn principle that Section 1983 does not recognize respondeat superior, but it also emphasized out of the blue that "a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution." The Court then rejected the argument that "a supervisor's mere knowledge of his subordinate's discriminatory purpose amounts to the supervisor's violating the Constitution."

This language from Iqbal appeared to reject the Second Circuit's longstanding view that Section 1983 did recognize supervisory liability where management was grossly negligent or deliberately indifferent to a subordinate's constitutional violations. The oft-cited precedent for this is Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995). But Judge Rakoff says, "not so fast on supervisory liability." The district court here summarizes Iqbal to mean that "the degree of personal involvement varies depending on the constitutional provision at issue: whereas invidious discrimination claims require a showing of discriminatory purpose, there is no analogous requirement applicable to D'Olimpio's allegations regarding his search, arrest and prosecution," which do not delve into the arresting officer's subjective intent but instead examine the objective circumstances of the arrest.

Judge Rakoff is not the first to suggest that supervisory liability is still breathing after Iqbal. In Sash v. United States, 674 F. Supp. 2d 531 (SDNY 2009), Magistrate Judge Peck noted that "Although the Second Circuit has not weighed in on what remains of Colon after Iqbal, several decisions in this district have concluded that by specifically rejecting the argument that 'a supervisor's mere knowledge of his subordinate's discriminatory purpose amounts to the supervisor's violating the Constitution,' Iqbal effectively nullified several of the classifications of supervisory liability enunciated by the Second Circuit in Colon v. Coughlin." However, Judge Peck concluded, "These decisions may overstate Iqbal's impact on supervisory liability."

Judges Rakoff and Peck agree that it may be true, post-Iqbal, that intent-based constitutional claims, such as those alleging discrimination, no longer permit liability against supervisors who knew about but did nothing about the discrimination. But if the constitutional claim does not require a showing of intent, such as false arrest or deliberate indifference claims, supervisory liability may indeed attach.