My Position on Supervisory Liability after Iqbal
Coming Full Circle
My very first post–on August 19–involved the Supreme Court’s 2009 decision in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), and its implications for supervisory liability under section 1983. I have since worked through the relevant issues and conclude that the Court got supervisory liability right, even though its reasoning was seriously deficient.
What follows is an abstract of an article setting out my position that will be published in March 2010 in an Iqbal symposium issue of Lewis & Clark Law Review. The entire article is currently available for downloading on the Legal Research Network of SSRN and also on this link: http://works.bepress.com/sheldon_nahmod/
Abstract of working paper by Sheldon Nahmod
Constitutional Torts, Over-Deterrence and Supervisory Liability After Iqbal,
forthcoming in Volume 14, Issue 1, Lewis & Clark Law Review (2010)
My forthcoming Article is divided into the following parts. In Part I, I survey relevant aspects of the law of § 1983 and Bivens. Painting with a broad brush and for the most part descriptively, I maintain that the Court’s concern with over-deterrence has increasingly dominated constitutional torts.
In Part II, I address the relevance of that concern for supervisory liability, set out what the Court said about supervisory liability in Iqbal and very briefly summarize the pre-Iqbal circuit consensus on supervisory liability.
In Part III, I delve more deeply into the nature of supervisory liability and conclude that the Court, although without any real analysis, reached the correct result in Iqbal. Section 1983’s legislative history, its language and, especially, policy considerations, all cut in favor of the constitutional approach under which it is the relevant constitutional provision that supplies the requisite state of mind, or fault. However, to the extent that Iqbal’s adoption of the constitutional approach to supervisory liability was motivated by a concern with over-deterrence, I argue that this concern will not necessarily be advanced. It all depends on the particular constitutional violation.
Finally, I address the glaring inconsistency between Iqbal’s constitutional approach and City of Canton’s deliberate indifference standard for § 1983 local government liability for failure to train. City of Canton v. Harris, 489 U.S. 378 (1989). The Court in City of Canton explicitly and incorrectly grounded this standard on the causation approach under which the requisite state of mind, or fault, is supplied by § 1983. Local government liability under § 1983 must, of course, be based on an official policy or custom which, when implemented by local government officials or employees, causes a constitutional deprivation. But the official policy or custom requirement, like the personal involvement requirement for all individual liability, is really all about constitutional accountability and should be grounded on the constitutional approach.