Iqbal and Section 1983 Supervisory Liability
The Supreme Court’s 2009 decision in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) (5-4 decision, Kennedy writing for the Court), has recently generated a great deal of justified attention in the federal courts and the profession.
However, most of that attention has been directed to the federal pleading aspects of Iqbal. Much less noticed has been the Court’s declaration, without briefing and argument, that supervisory liability under Bivens and section 1983 requires that the supervisor must possess the same state of mind that is required for the underlying constitutional violation by subordinates. In Iqbal itself, this meant that the defendants, Ashcroft and Mueller, accused of violating the plaintiff’s equal protection rights by implementing policies that led to the plaintiff’s harsh treatment by subordinates during confinement because of his race, religion and national origin, would not be liable unless the plaintiff alleged and could prove that Ashcroft and Mueller themselves acted with purposeful discrimination. Defendants’ actual knowledge of a constitutional violation by their subordinates, coupled with their deliberate indifference, was therefore not sufficient to state a claim under Bivens. Significantly, this changed the supervisory liability law in the circuits which had for the most part adopted the deliberate indifference standard. (Four justices dissented, led by Justice Souter in a lengthy dissenting opinion).
The Court in Iqbal was clearly concerned with the costs of defending against supervisory liability claims under Bivens and section 1983 and, thus, with over-deterrence. This concern accounted for the Court’s imposing a kind of heightened pleading requirement in Iqbal and more generally in all Bivens and section 1983 litigation. The same concern, I think, also accounted for the Court’s dramatic change in the law of supervisory liability.
States of Mind for Supervisory Liability: Constitutional or Otherwise?
Interestingly, the Court’s new position –that supervisory liability requires the same state of mind as the underlying constitutional violation–is one that I advocated way back in the last century(!) in an article entitled Constitutional Accountability in Section 1983 Litigation, 68 Iowa L. Rev. 1 (1982). (The position is also set out in my section 1983 treatise in chapters 3 and 6.) In that article I called this position the “Fourteenth Amendment approach” in contrast to the “causation approach.” Under the latter, a supervisor could be liable for the unconstitutional conduct of subordinates for his or her culpable conduct, including negligence, so long as the supervisor’s conduct (typically a failure to supervise) caused the plaintiff’s constitutional deprivation. It turned out that in the circuits–which implicitly rejected the Fourteenth Amendment approach–deliberate indifference was the consensus standard for supervisory liability.
State of mind issues are about fault. The intriguing question in the supervisory liability setting is the source of the fault requirement. Iqbal declared that the source is the underlying constitutional provision, while the circuits had taken the position that the source is either federal common law (for Bivens claims) or section 1983 itself.
In any event, and apart from process concerns regarding the lack of briefing and argument, was the Court correct in Iqbal as a matter of federal common law (for Bivens) and statutory interpretation (for section 1983)? Furthermore, even under the Court’s newly announced Fourteenth Amendment approach to supervisory liability, will the new approach make much of a difference as a general matter? Recall that the underlying constitutional provision in Iqbal was equal protection which requires purposeful discrimination. Suppose that a supervisory liability claim is based on the underlying violation by subordinates of a constitutional provision that requires deliberate indifference: shouldn’t deliberate indifference in such a case be sufficient as well for supervisory liability? Finally, how does the Court’s approach to supervisory liability square with the (apparently statutorily based) standard of deliberate indifference in section 1983 local government liability failure to train and supervise cases?