When may a supervisory official be held liable under 42 U.S.C. §1983 for the unconstitutional conduct of a subordinate? This issue has given the courts and §1983 litigators fits for many years. The U.S. Supreme Court's decision in Ashcroft v. Iqbal, 556 U.S. 662 (2009) generated confusion and uncertainty about the liability of supervisors for constitutional violations by subordinates. The Supreme Court, post-Iqbal, has so far stayed out of the thicket and, as a result, failed to provide much needed guidance on the issue.

Prof. Alexander A. Reinert recently made an excellent presentation on the issue of supervisory liability at the Practising Law Institute's Thirty Fifth Annual Section 1983 Litigation Program (New York City, Oct. 25, 2018). Reinert argued in the U.S. Supreme Court on behalf of the plaintiff in Iqbal and has been carefully following the post-Iqbal lower court developments. He offered several important observations concerning the liability of supervisory officials, which we will highlight as we work our way through the material.

At the outset, it is important to distinguish supervisory liability from municipal liability. Municipal liability under §1983 is a form of entity liability governed by these fundamental principles:

(1) Municipalities may not be held liable on the basis of respondeat superior, but only when the violation of the plaintiff's federally protected rights is attributable to the enforcement of a municipal policy or practice. Monell v. NYC Dep't of Soc. Servs., 436 U.S. 658 (1978).

(2) Municipalities are not protected by qualified immunity. In other words, the good faith of its employees will not shield a municipality from either monetary or equitable relief. Owen v. City of Independence, 445 U.S. 622 (1980).

(3) Municipalities are absolutely immune from punitive damages. City of Newport v. Fact Concerts, 453 U.S. 747 (1981).

By contrast, the liability of supervisors under §1983 is a form of personal liability governed by these principles:

(1) Supervisors may not be held liable on the basis of respondeat superior, but only for a supervisor's own wrongs.

(2) Supervisors may be held liable even when the violation of the plaintiff's federal rights is not attributable to the enforcement of a municipal policy or practice.

(3) Supervisors sued for carrying out executive or administrative functions may assert the defense of qualified immunity. (Supervisors who carried out judicial, prosecutorial, or legislative functions are protected by an absolute immunity.)

(4) Supervisors may be held liable for punitive damages.

In formulating principles of supervisory liability, the federal courts of appeals have borrowed some concepts from the law of §1983 municipal liability. This is undoubtedly because, like municipal liability, §1983 supervisory liability claims typically seek to impose liability upon a supervisor for a wrong directly inflicted by a subordinate. Nevertheless, there are separate bodies of law for municipal and supervisory liability, and it is important that §1983 practitioners not lump them together.

Prior to the Supreme Court's decision in Ashcroft v. Iqbal, each of the circuit courts of appeals formulated principles of §1983 “supervisory liability.” For a “circuit by circuit” survey of pre-Iqbal decisions, see Martin A. Schwartz, 1A Section 1983 Litigation: Claims and Defenses §7.19[C][3] (4th ed. 2018) (hereafter Claims and Defenses). Deliberate indifference played a prominent role in these standards, just as it does for municipal liability.

In the Second Circuit's pre-Iqbal decision in Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995), the court stated that supervisory liability may be based upon any of the following:

(1) The supervisor's direct participation in the alleged constitutional violation.

(2) The supervisor's failure to remedy a wrong after being informed about it.

(3) The supervisor's creation of a policy or custom under which constitutional practices occurred or allowed the continuance of such a policy or custom.

(4) The supervisor's grossly negligent supervision of subordinates.

(5) The supervisor's deliberate indifference “by failing to act on information indicating that unconstitutional acts were continuing.” (emphasis added).

In the author's view, the first (direct participation) and third (creation of an unconstitutional policy or practice) are straightforward and non-controversial because they contemplate liability for a supervisor's direct and active involvement in the violation of the plaintiff's constitutional rights. Reinert correctly pointed out that the fourth (“gross negligence”) category has never gained traction. As far as can be determined from the reported decisions, it has not in fact been invoked by courts in the Second Circuit to support liability against a supervisory official. In addition, the Supreme Court has yet to sanction gross negligence for any type of §1983 liability.

So, let's put aside the first and third Colon categories because they involve a supervisor's direct participation in the violation of the plaintiff's rights, and the fourth category as pretty much of a non-starter. That leaves the second and fifth categories, which appear to be either the same or substantially the same, namely, a supervisor's deliberate failure to take corrective action in the face of knowledge of constitutional wrongdoing by subordinates. For purposes of discussion, we'll collapse them into one “deliberate indifference” category. When courts have inquired whether the Colon categories survived Iqbal, the key question has been the survival of the “deliberate indifference” category.

Javaid Iqbal's federal court complaint alleged that he, and other post-9/11/2011 detainees, were subjected to harsh discriminatory treatment. The complaint asserted Bivens claims against numerous federal officers. The supervisory defendants, former Attorney General John Ashcroft and FBI Director Robert Mueller, conceded “that a supervisor's knowledge of a subordinate's unconstitutional conduct and deliberate indifference to that conduct are grounds for Bivens liability” and, because of that concession, the parties did not brief the proper scope of supervisory liability. See Ashcroft v. Iqbal, 556 U.S. at 691-92 (Souter, J., dissenting). Neither the concession nor the lack of briefing deterred the court from holding that the complaint failed to assert plausible discrimination claims against Ashcroft and Mueller.

Justice Anthony M. Kennedy, writing for the court, said that because there is no vicarious liability under §1983 “the term 'supervisor liability' is a misnomer. [E]ach government official, his or her title notwithstanding, is only liable for his or her own misconduct.” Ashcroft v. Iqbal, 556 U.S. at 677 (emphasis added). The court made clear that the same law governing the liability of supervisors applies in both Bivens cases against federal officers and §1983 actions against state and local officials.

The lower federal courts implement the “own misconduct” requirement by requiring an official's personal involvement in the violation of the plaintiff's constitutional rights. But what does “own misconduct” or “personally involvement” mean? There is no easy answer to that question. The issue requires a careful evaluation of whether the supervisor's action or inaction was a proximate cause of the violation of the plaintiff's federally protected rights. Just as proximate causation at times generates difficult issues in common-law tort cases, it can cause tough issues in §1983 “constitutional tort” actions. Whether phrased in terms of “own misconduct,” “personal involvement,” or “culpability and causation,” the principle is easy to state, but at times difficult to apply.

To be sure, there are some easy cases. A supervisor who promulgated an unconstitutional policy, or who actively participated in the claimed unconstitutional conduct, such as an arrest without probable cause, may be held liable for that conduct. Reinert pointed out that when a “bystander” supervisory official is held liable for failing to intervene to prevent a subordinate's infliction of excessive force despite having a realistic opportunity to do so, the bystander officer's failure to intervene is considered a separate constitutional wrong. In other words, this is not a matter of supervisory liability. There is in fact a fairly extensive body of “bystander officer” liability decisions distinct from supervisory liability decisional law. See, e.g., Anderson v. Branen, 17 F. 3d 552 (2d Cir. 1992)

Javaid Iqbal's claims of unconstitutional discrimination based on race, religion, and national origin required him to prove intentional discrimination, meaning that the defendant officials acted with a discriminatory purpose. In the context of those claims the Supreme Court rejected the plaintiff's claims that a supervisor can be held liable based upon his knowledge and acquiescence in a subordinates' discriminatory purpose. The court said that “purpose rather than knowledge” is required to impose liability on a “subordinate for unconstitutional discrimination”, and that “the same holds true for an official charged with violations arising from his or her superintendent responsibilities.” Iqbal, 556 U.S. at 677. The court thus effectively ruled that when the plaintiff asserts a constitutional claim based upon discriminatory purpose, supervisory liability cannot be based upon deliberate indifference. The court did not state whether deliberate indifference could provide a basis for imposing liability against a supervisor for a constitutional violation not requiring proof of discriminatory purpose.

Justice David H. Souter's dissenting opinion in Iqbal viewed the court's decision as a complete elimination of supervisory liability in §1983 and Bivens actions. 556 U.S. at 692-93. He noted that “there is quite a spectrum of possible tests for supervisory liability”, but because the issue was not briefed or argued he was “in no position to choose or devise one.” Id. at 693-94. Most of the circuits post-Iqbal have reevaluated their supervisory liability law. Claims and Defenses, §7.19[D]. The Second Circuit's fullest discussion came in Turkmen v. Hasty, 789 F. 3d 218 (2d Cir. 2015), rev'd in part, vacated in part sub nom. Ziglar v. Abbasi, 137 S.Ct. 1843 (2017), in which the plaintiffs asserted Bivens claims similar to those in Iqbal. The circuit court in Turkmen said that the type of conduct that can subject a supervisor to liability depends on the nature of the constitutional claim asserted. Does the constitutional claim, require, for example, a showing of discriminatory intent or deliberate indifference? But Turkmen's precedential value is clouded, or at least greatly diminished, by the Supreme Court's decision in Ziglar v. Abbasi, 137 S. Ct. 1843 (2017) vacating the Second Circuit's decision in Turkmen and remanding a claim against the warden. True, the Supreme Court in Ziglar found that the complaint allegations that the warden, inter alia, encouraged abuses of the plaintiffs stated a plausible ground of constitutional violations by the warden. But a supervisor's encouragement of abuse by subordinates is a form of direct involvement in unconstitutional conduct. And, in its brief discussion of the claim against the warden, the court in Ziglar neither cited to Iqbal nor discussed principles of supervisory liability.

Reinert concluded that the post-Iqbal circuit court decisions have not significantly changed the law, and that deliberate indifference remains an available basis for imposing liability on a supervisor, at least when the constitutional violation does not require a showing of discriminatory intent. He acknowledged, however, that Iqbal has made it more difficult for plaintiffs to prevail on §1983 and Bivens claims against supervisory officials.

The reality is that not too many §1983 claims against supervisory officials succeeded pre-Iqbal, and not too many have succeeded post-Iqbal. This is not surprising. Even assuming that deliberate indifference may support the imposition of liability against a supervisor, it is a stringent fault standard, as is the causation requisite that goes along with it.

Given the legal complications and the uncertainties surrounding the liability of supervisors, the question arises, why do §1983 plaintiffs' attorneys pursue these claims? Supervisory liability claims “can multiply legal and factual theories; complicate discovery, proof, and motion practice; and delay the resolution of seemingly simple disputes.” Reinert, Supervisory Liability and Ashcroft v. Iqbal, p.2 (October 2018) (unpublished paper). Not suing supervisory officials can “streamline” the case, making it more manageable for the attorneys and the court. On the other hand, Reinert pointed out several reasons for suing a supervisory official, including enhancing the likelihood of a solvent defendant; some jurors may be more willing to hold higher-level officials liable; and increasing access to relevant discovery and broadening the scope of relevant evidence. Reinert concluded that in “most cases” it will make sense for the plaintiff to sue a supervisory official.

The problem is that the vast majority of §1983 claims against supervisory officials do not make it past a motion to discuss or for summary judgment. In this writer's opinion, some plaintiffs' attorneys name supervisory officials as defendants too reflexively. Before naming a supervisory official as a defendant, plaintiff's attorney should make a careful evaluation of whether the claim is sufficiently “plausible” under the governing liability standards to overcome a motion to dismiss, and whether the plaintiff is likely to have sufficient evidence to withstand summary judgement.

Martin A. Schwartz is a professor emeritus of law and the author of a multi-volume Section 1983 Litigation treatise published by Wolters Kluwer Law and Business.