Nahmod Law

I blogged about the intracorporate conspiracy doctrine and its relation to section 1983 on October 8, 2012, and that post should be read here for background: https://nahmodlaw.com/2012/10/08/section-1983-and-the-intracorporate-conspiracy-doctrine/.

More recently, the Supreme Court weighed in on this doctrine in Ziglar v. Abbasi, 137 S.Ct. 1843 (2017) which involved § 1985(3) civil conspiracy claims (in addition to much-publicized Bivens claims) alleging unconstitutional prisoner abuse and unconstitutional conditions of confinement created by high-ranking federal officials—executives and wardens—after the 9-11 terrorist attacks. The plaintiffs were of Arab or South Asian descent.

The Supreme Court ruled that the defendants were protected by qualified immunity from the § 1985(3) civil conspiracy claims. It stated: “[R]easonable officials in [defendants’] position would not have known, and could not have predicted, that § 1985(3) prohibited their joint consultations and the resulting policies that caused the injuries alleged.” See, on qualified immunity, chapter 8, NAHMOD, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (2017)(West).

What is important for present purposes is that, in reaching its qualified immunity conclusion, the Court emphasized that the alleged conspiracy was between or among officers in the same branch of the federal government (the Executive), and in the same department (the Department of Justice). The Court then commented that it had not approved of the use of the intracorporate conspiracy doctrine in the § 1985(3) setting. In addition, the circuits were divided on this issue.

For these reasons, the defendants were protected by qualified immunity: “When the courts of appeals are divided on an issue so central to the cause of action alleged, a reasonable official lacks the notice required before imposing liability.”

In light of Ziglar, then, it is fair to say that the applicability of the intracorporate conspiracy doctrine in the § 1983 setting is similarly an open question.

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