Nahmod Law

The Decision

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). Read the rest of this entry »