In its recent opinion in Ashcroft v. Iqbal, the United States Supreme Court confused the law of supervisory liability. Iqbal's bare majority did not, contra the some gasps in the dissent, overrule supervisory liablity under Bivens or Section 1983. The Court did confuse the law of supervisory liablity. Let's look at where the Court went wrong.
Bivens Actions. A state or local government official who violates a citizens constitutional rights may be sued under federal statute - 42 U.S.C. 1983. Section 1983 was not used for decades. Then, in the 1960s, the Supreme Court awoke Section 1983 from hibernation - in Monroe v. Pape.
Monroe, however, involved a lawsuit against state officials. Such lawsuits were covered directly under federal statute.
How then, if at all, may a citizen sue a federal agent who violates the Constitution? This is a tricky question. Is the Constitution self-executing? Or must Congress first create enabling legislation allowing a private party to sue federal agents?
Section 1983, e.g., is a enabling legislation. The Constitution is the source of the substantive rights. Section 1983 is what allows a party to file a lawsuit. What then to do with federal officials?
In Bivens v. Six Unknown Named Agents, the Supreme Court answered the controversial question. In Bivens, the Court held that at least some parts of the Constitution were self-executing. Thus, even without enabling legislation, a citizen could sue federal agents for violating the Constitution.
Bivens Divides Liberal and Conservative Justices. Conservatives hate Bivens. Liberals love it. There are fantastic arguments for love and hate. Some conservatives say that Article III courts lack the power to create common-law causes of action. Plus, conservatives, as a matter of realpolitik, don't like lawsuits against the police. On the former point, liberals say that's silly: There is indeed a substantial body of federal common law. On the latter point, liberals say nothing. Pointing out conservative's pro-government bias is bad manners.
Reasonable minds disagree. But Bivens exists. Now what?
Conservative justices, when they can, limit Bivens. When they get the votes, the write opinions which state: "Because implied causes of action are disfavored, the Court has been reluctant to extend Bivens liability 'to any new context or new category of defendants.'" Which is exactly what the conservative 5 justices of the United States Supreme Court wrote in Ashcroft v. Iqbal.
Supervisory Liablity. Under Section 1983, a supervisor may be sued for his subordinate's unconstitutional acts. However, a supervisor is not strictly liable under respondeat superior. Rather, supervisory liability attaches only where a plaintiff can show that the supervisor's policy or custom was a moving force behind the civil rights violation. To hold a supervisor liablity, a plaintiff must show ratification, or acquiesce.
For example, a cop hits you over the head with a baton because you're wearing a "Goldman Sachs is Evil" t-shirt. No supervisory liablity. If the supervisor issued a memo saying, "Hit anyone over the head who defames Goldman Sachs," then the supervisor would be liable. The supervisor would have ratified an official policy.
The Supreme Court has recognized, though, that policy is created based on not just what you say - but on what you don't say. Imagine your employees come into the office at 9:30 a.m. You say nothing. The de facto start time for the workday, then, would be 9:30. You need not issue a memo for your subordinates to learn the policy or custom. That you issued no such memo, though, doesn't mean there isn't a policy or custom. There is acquiesce.
Thus, in City of Canton v. Harris, the Supreme Court held that supervisory liablity may attach where "policymakers were aware of, and acquiesced in, apattern of constitutional violations." If the chief of police knows that his officers are beating up people who speak ill of Goldman Sachs and does nothing, then one could infer that he's sanctioned the policy. After all, it's his job to tell officers what to do - and not do. Moreover, policymakers should not be able to avoid liablity through an ostrich policy.
Iqbal Ignores Canton. In Iqbal, the majority writes:
[Plaintiff] argues that, under a theoryof "supervisory liability," petitioners can be liable for "knowledge and acquiescence in their subordinates' use of discriminatory criteria to make classification decisions among detainees." That is to say, respondent believes a supervisor’s mere knowledge of his subordinate’s discriminatory purpose amounts to the supervisor’s violating the Constitution. We reject this argument. Respondent’s conception of "supervisory liability" is inconsistent with his accurate stipulation that petitioners may not be held accountable for the misdeed sof their agents. In a §1983 suit or a Bivens action—where masters do not answer for the torts of their servants—the term "supervisory liability" is a misnomer. Absent vicarious liability, each Government official, his or her title notwithstanding, is only liable for his or her own misconduct. In the context of determining whether there is a violation of clearly established right to overcome qualified immunity, purpose rather than knowledge is required to impose Bivens liability on the subordinate for unconstitutional discrimination; the same holds true for an official charged with violations arising from his or her superintendent responsibilities.
The majority ignores Canton, but also fails to note that a government official's misconduct includes failure to properly train or supervise his subordinates; and for creating unconstitutional policies that are the moving force of civil rights violations. Thus, the majority's statement: "Absent vicarious liability, each Government official, his or her title notwithstanding, is only liable for his or her own misconduct," is nonsensical.
The Iqbal majority ignored decades of case law. It has cast doubt over the elements in a cause of action brought against supervisors who fail to properly train or supervise subordinates; or who close to their eyes to constitutional rights violations.
The real action now will occur in the lower courts.
Lower courts should recognize that, as the Supreme Court noted in Canton, supervisors have an independent duty to supervise and train employees; and to prevent their employees from creating a culture of lawlessness.
Holding supervisors accountable for their actual, unconstitutional conduct is not imposing strict liablity. Thus, as has always been the case, post-Iqbal plaintiffs will be required to prove that the supervisor failed to supervise his subordinates. Simply alleging a supervisor-subordinate relationship is not enough.
Rather, as most jury instructions provide, the plaintiff must show: "[3. (a) the defendant knew, or reasonably should have known, that [his] [her] subordinate[s] were engaging in theseact[s] and that their conduct would deprive the plaintiff of these rights; and(b) the defendant failed to act to prevent [his] [her] subordinate[s] from engaging in such conduct.]" Ninth Circuit Model Civil Instructions No. 9.3.
A few stray sentences in Iqbal should not uproot longstanding law.