Section 1983 complaints that assert claims against multiple police officers can be especially challenging for counsel and the courts. These actions most commonly allege that police arrests, uses of force, and searches violated the Fourth Amendment. The defendant may have been the arresting officer, an officer who employed force, an officer serving as "back up," a supervisory officer, or officer who was merely "on the scene."

Multiple police officer defendant cases may present difficult issues (1) concerning the identification of the officers; (2) determining which officer(s) did what; and (3) evaluating whether an officer's actions or inactions justify the imposition of §1983 liability. We assume, initially, that the plaintiff and her attorney are able to identify the officers involved in the incident. This is no small assumption and we will return to this issue later in the column.

Given the broad spectrum of police officer involvement, what type of police officer action or inaction supports §1983 monetary liability? We start with the basics and work our way to more nuanced issues.

'Personal Involvement' Requirement

It is firmly established that there is no vicarious liability under §1983. Ashcroft v. Iqbal, 566 U.S. 662 (2009) (superior officers may be held liable only for their own constitutional wrongs); Monell v. N.Y.C. Dep't of Soc. Servs., 436 U.S. 658 (1978) (municipalities may be held liable under §1983, but not on basis of respondeat superior). While the no vicarious liability principle is applied most prominently with respect to municipal liability, the principle in fact applies to all §1983 defendants, whether entity or officers, and regardless of an officer's title, rank, or responsibilities. Each §1983 defendant may be held liable only for his or her own constitutional wrongdoing.

This is the most fundamental way that §1983 law differs from the common law of torts. Although §1983 "borrows" numerous common-law tort principles, §1983 law does not allow for vicarious liability under any circumstances.

Section 1983 liability may be imposed against an officer only if he or she was personally involved in the constitutional violation. See, e.g., Grullon v. City of New Haven, 720 F.3d 133, 138 (2d Cir. 2013); Provost v. City of Newburgh, 262 F.3d 146, 155 (2d Cir. 2001); Burks v. Raemisch, 555 F.3d 592, 595-96 (7th Cir. 2019). In addition, an officer's actions (or inactions) must be a proximate cause of the violation. See Martinez v. California, 444 U.S. 277 (1980) (official conduct that is too remote in relation to the violation of the plaintiff's constitutional rights will not support §1983 liability). There is overlap between the personal involvement and causation requisites.

The "personal involvement" requisite means that a §1983 complaint cannot rely on "group" or "shotgun" pleading containing vague references to a group of defendants without differentiating which defendants were involved in the alleged unconstitutional conduct, and the nature of the involvement. See, e.g., Grieveson v. Anderson, 538 F.3d 767, 778 (7th Cir. 2008); Britton v. City of New York, 404 F. Supp. 3d 799, 812 (S.D.N.Y. 2019). A §1983 complaint cannot simply lump multiple officers together as defendants; the complaint must plead facts alleging what each officer did that makes her liable for the violation of the plaintiff's constitutional rights. Britton, 404 F. Supp. 3d at 812, citing Myers v. Moore, 326 F.R.D. 50, 60 (S.D.N.Y. 2018).

When multiple officers are named as defendants, the complaint must "make clear exactly who is alleged to have done what to whom, to provide each individual with fair notice of the basis of the claim against him or her." Robbins v. Oklahoma, 519 F.3d 1242,1250 (10th Cir. 2008). Accord Brooks v. Ross, 578 F.3d 574, 582 (7th Cir. 2009). That can be a tall order at the pleading stage.

Bases for Liability

The major potential bases of police officer liability under §1983 are: (1) direct involvement in the constitutional violation, for example, arrested the plaintiff or inflicted force; (2) failure to intervene to prevent a constitutional violation despite a reasonable opportunity to do so, e.g., Anderson v. Branen, 27 F.3d 29 (2d Cir. 1994); and (3) supervisory responsibility for the alleged violation of the plaintiff's rights, e.g., by ordering , authorizing, or encouraging the allegedly unconstitutional conduct. See, e.g., Peatross v. City of Memphis, 818 F.3d 233, 240-44 (6th Cir. 2016); Turkmen v. Hasty, 789 F.3d 218 (2d Cir. 2015), rev'd in part, violated in part sub nom., Zigler v. Abbasi, 137 S. Ct. 1843 (2017).

It is not always easy to determine whether §1983 law allows liability to be imposed on a supervisory official for the constitutional conduct of a subordinate. If an officer is named as a defendant based on her supervisory responsibilities, the supervisor's actions or inactions claimed to support liability should be spelled out in the complaint. A supervisor should not be simply lumped together with line officers or, for that matter, with other supervisory officials.

Jury Instructions

Assuming that the plaintiff's claims survive the pleadings and motions stages and make their way to trial, the jury instructions should focus the jury's attention on the need to evaluate the liability of each of the officers separately. The issue has arisen primarily in excessive force cases. The circuit courts hold that when multiple officers were involved in the use of force, the jury should be instructed to evaluate each officer's liability separately based on his or her own conduct. Jutrowski v. Township of Riverdale, 940 F.3d 280, 289-90 (3d Cir. 2018); Binay v. Bettendorf, 601 F.3d 647, 650 (6th Cir. 2010).

'Integral Participation'

Several decisions hold that a police officer can be found liable for excessive force if he or she was an "active" or "integral" participant in the alleged wrong, even if the officer's conduct itself did not rise to a constitutional violation. See, e.g., Fazcia v. Jordan, 926 F.3d 283, 289-90 (6th Cir. 2019); Bonivert v. City of Clarkston, 883 F.3d 865, 879 (9th Cir. 2018); Binay v. Bettendorf, 601 F.3d at 650; Boyd v. Benton County, 374 F.3d 773, 780 (9th Cir. 2000) (integral participation requires "meaningful participation" in the allegedly unconstitutional conduct); Melear v. Spears, 862 F.2d 1177, 1186 (5th Cir. 1989). See also John v. City of New York, 406 F. Supp. 3d 240 (E.D.N.Y. 2019) (court rejected defendants' argument that they were entitled to summary judgment because plaintiff failed to identify which officers used excessive force: plaintiff need only provide evidence that the officer defendants were present at the time in question and participated in the arrest).

What constitutes "active" or "integral" participation may not always be obvious. And, it is unclear whether the U.S. Supreme Court would find the active or integral participation doctrine harmonious with §1983's fundamental principle of individual responsibility.

Amending the Complaint

When numerous officers were on the scene of the incident, plaintiff and her attorney may be unable to identify all of the officers involved in the violation of the plaintiff's constitutional rights. Plaintiff's counsel should review available videotape, police reports, and other pertinent department documents.

Plaintiff's attorney may find it necessary to name in the complaint John Doe defendants as "placeholders" until the identities of the officers can be determined. While the great weight of federal judicial authority allows the naming of Doe defendants, a Doe defendant may be dismissed if the complaint fails to "sufficiently allege who the Doe defendants are, what they allegedly did, what their position is for the city, or any other facts that would permit the Doe defendants to be noticed or identified through discovery." Perez v. Does 1-10, 931 F.3d 641, 646 (8th Cir. 2019).

If the complaint names Doe defendants, plaintiff's attorney should promptly undertake an investigation and engage in discovery to ascertain the names of the officers and, after ascertained, amend the complaint to substitute the name of the officers for the Doe defendants.

If the amended complaint is filed after the running of the statute of limitations, a court will have to determine whether the amended complaint "relates back" to the filing of the original complaint. The issue is governed by Fed. R. Civ. P. 15(c)(1)(C). When an amended complaint "changes the party or the naming of the party against whom a claim is asserted," it will relate back to the original complaint if, inter alia, the newly named defendant "knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party's identity." Fed. R. Civ. P. 15(c)(1)(C)(ii) (emphasis added).

The U.S. Court of Appeals for the Second Circuit held in Barrow v. Wethersfield Police Dept., 66 F.3d 466 (2d Cir. 1995) that under Rule 15(c), an amended complaint replacing a Doe defendant with the actual name of the officer does not relate to the filing of the original complaint because the plaintiff named the Doe defendant in the original complaint because of a lack of information, not because of a "mistake." Wethersfield is consistent with the great weight of circuit court authority.

The U.S. Supreme Court's decision in Krupski v. Costa Crociere S.p.A, 560 U.S. 538 (2010) (non-§1983) held that the plaintiff's amended complaint adding Costa Crociere as a defendant in lieu of the mistakenly originally named Costa Cruise, related back to the filing of the original complaint. The court in Krupski construed and applied Rule 15(c)(1)(C) in a pro-plaintiff friendly manner.

The question arose whether Krupski implicitly overruled the Second Circuit's decision in Barrow. The Second Circuit in Ceara v. DOCS Officer Deacon, 916 F.3d 208 (2d Cir. 2019) held that Barrow was not overruled by Krupski and remains good law. So, it remains the law in the Second Circuit that an amended complaint substituting a named officer for a Doe defendant officer does not relate back to the filing of the original complaint. The court in Ceara reasoned that Krupski did not involve a Doe defendant complaint; rather, the plaintiff in Krupski had made a mistake as to which of two parties, the identities of which she knew, to sue.

The circuit court's reaffirmation of Barrow was not good news for §1983 plaintiffs. But §1983 plaintiffs have another arrow in their quiver: Rule 15(c)(1)(A) directs that an amended complaint will relate back to the original complaint if "the law that provides the applicable statute of limitations allows relations back." Because the limitations period on a §1983 claim is governed by state law, Wilson v. Garcia, 471 U.S. 261 (1985); Owens v. Okure, 486 U.S. 235 (1989), relation back will apply if it is authorized by state law even though not authorized by Fed. R. Civ. P. 15. In other words, "more forgiving" state relations back law controls over a more restrictive Rule 15(c) provision. Hogan v. Fischer, 738 F.3d 509 (2d Cir. 2013). In fact, New York CPLR 1024 provides "more forgiving" relation back for amended complaints substituting a named officer for a Doe defendant. CPLR 1024 allows relation back when the plaintiff is ignorant of the name of the person responsible for the alleged wrongdoing and names a Doe defendant in the original complaint, if

1. the plaintiff exercises due diligence, prior to the running of the limitations period, to identify the defendant by name; and
2. describes the Doe defendant in such form as fairly apprises the party that he is the intended defendant.

Hogan, 738 F.3d at 518-19.

Obstacles Preventing Identification

Some recent circuit court decisions have expressed concern about obstacles that may prevent the identification of police officers involved in the violation of the plaintiff's federal constitutional rights. In McCrew v. Duncan, 937 F.3d 664, 669 (6th Cir. 2019), a §1983 excessive force arrest case, the court ruled that if officers actively conceal their identities, as by wearing masks, "and if the concealment prevents a plaintiff from identifying which officers violated her rights, she may get to a jury if she can create genuine factual issues regarding the officers' presence at the scene." See also Greer v. City of Highland Park, 884 F.3d 310, 316 (6th Cir. 2018); Burley v. Gagacki, 729 F.3d 610, 622 (6th Cir. 2013).

The circuit court in McCrew found that on the summary judgment record in the case the trier of fact may decide the officers' liability because the officers actively concealed their identities by wearing masks, and none of the officers disputed his presence at the scene.

In Colbert v. City of Chicago, 851 F.3d 649 (7th Cir. 2017), cert. denied, 138 S.Ct. 657 (2018), the plaintiffs were unable on summary judgment to identify all of the officers who damaged their property while conducting a search. The circuit court acknowledged that it may be "problematic" to require them to do so when police officers remove individuals from the place of the search. The court was concerned that by removing persons from the scene, police officers might effectively immunize themselves from liability. The court suggested that plaintiffs prevent such immunization by alleging, for example, "something akin to a 'conspiracy of silence among the officers'" in which the officers refuse to disclose which officer(s) injured the plaintiff. Id. at 657-58 (citing Molina v. Cooper, 325 F.3d 963, 974 (7th Cir. 2003)).

Judge David F. Hamilton, concurring in part and dissenting in part, opined that when the plaintiff offers evidence that the officers conducted an unreasonable search and took steps to prevent the plaintiff from identifying the officer(s) who caused the damage, the burden of production should shift to the defendants on the issue of individual responsibility. Colbert, 851 F.3d at 663 (finding that other circuits have used this method "to varying degrees"). See also DaCosta v. City of New York, 296 F. Supp. 3d 569 (E.D.N.Y. 2017) (city attorneys had ethical obligation to inform plaintiff of identity of officer involved in incident in question), subsequent history, 783 Fed. Appx. 54 (2d Cir. 2019).

McCrew and Colbert are positive developments. Section 1983 claims should be adjudicated on the basis of the evidence and the law, not because of obstacles preventing the identification of constitutional wrongdoers.

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.