In dissent, Justice Souter canvassed the circuits’ various supervisory-liability tests and argued that the majority failed to distinguish between respondeat superior and supervisory liability:
[T]here is quite a spectrum of possible tests for supervisory liability: it could be imposed where a supervisor has actual knowledge of a subordinate's constitutional violation and acquiesces [citing 3d and 10th Circuit]; or where supervisors “‘know about the conduct and facilitate it, approve it, condone it, or turn a blind eye for fear of what they might see,’” [quoting D.C. Circuit] (quoting Jones v. Chicago, 856 F.2d 985, 992 (7th Cir. 1988) (Posner, J.)); or where the supervisor has no actual knowledge of the violation but was reckless in his supervision of the subordinate [citing 8th Circuit]; or where the supervisor was grossly negligent [citing 1st Circuit].
Iqbal, 556 U.S. at 693–94 (Souter, J., dissenting). Justice Souter predicted that Iqbal eliminated supervisory liability: “Lest there be any mistake . . . the majority . . . is eliminating Bivens supervisory liability entirely. The nature of a supervisory liability theory is that the supervisor may be liable, under certain conditions, for the wrongdoing of his subordinates, and it is this very principle that the majority rejects.” Iqbal, 556 U.S. at 693 (Souter, J., dissenting).
Is Supervisory Liability a Statutory Claim about Section 1983 Causation?
The uncertain status of supervisory liability since Iqbal is illustrated by the Seventh Circuit’s various approaches. The Seventh Circuit in one precedent appeared to treat supervisory liability as unchanged by Iqbal, that is, as a question of statutory construction of the section 1983 causation language requiring that the underlying constitutional violation be caused by the supervisor. Backes v. Village of Peoria Heights, Ill., 662 F.3d 866 (7th Cir. 2011). Without even citing Iqbal, the Seventh Circuit reasoned:
[A] defendant need not ‘participate[ ] directly in the deprivation’ for liability to follow under § 1983. Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001). Indeed, a supervisor may still be personally liable for the acts of his subordinates if he ‘approves of the conduct and the basis for it.’ Chavez [v. Illinois State Police], 251 F.3d [612,] 651 [7th Cir. 2001] (citations omitted). ‘[S]upervisors must know about the conduct and facilitate it, approve it, condone it, or turn a blind eye for fear of what they might see. They must in other words act either knowingly or with deliberate, reckless indifference.’ Id. (quoting Jones v. City of Chicago, 856 F.2d 985, 992–93 (7th Cir.1988)).
Backes, 662 F.3d at 869–70.
Is Supervisory Liability a Constitutional Question Where the Standard Varies Depending on the Constitutional Claim?
By contrast, citing Iqbal, the Seventh Circuit has analyzed claims against supervisors as independent constitutional claims. The Seventh Circuit held that a public-school principal could be liable for concealing reports of sexual abuse by a teacher and “creating an atmosphere that allowed abuse to flourish” because such conduct was “not mere failure of supervisory officials to act” but a claim that a defendant’s “own misconduct” and “deliberate indifference” deprived students of their liberty interests in violation of substantive due process, “regardless whether a supervisor or a subordinate.” TE v. Grindle, 599 F.3d 583, 590–91 (7th Cir. 2010); see Arnett v. Webster, 658 F.3d 742, 758 (7th Cir. 2011)(similarly, suggesting that a supervisor’s failure to act can be culpable where plaintiff can show the supervisor knew of a substantial risk of serious harm to plaintiff, the same Eighth Amendment standard that applies to non-supervisors).
Consistently with analyzing claims against supervisors as constitutional claims (rather than statutory claims based on the causation language of section 1983), the Seventh Circuit, again citing Iqbal, has plainly stated that a police supervisor “can only be liable for what he did; there is no doctrine of supervisory liability for the errors of subordinates such as [police].” Paine v. Cason, 678 F.3d 500, 512 (7th Cir. 2012) (supervisor could be liable for denying a clearly established constitutional right to medical care based on supervisor’s own observation of a mentally disturbed arrestee and own treatment of call from arrestee’s father as a prank).
If Claims Against Supervisors Are Based on the Constitution, Is Intent to Harm Required for All Claims, Not Just for Invidious-Discrimination Claims?
But even if the claim against the supervisor is constitutional and not based on the causation language of the section 1983 statute, it is not clear what standard governs. The Seventh Circuit explicitly has recognized that, after Iqbal, if a plaintiff’s constitutional claim requires not intent to harm but the lesser standard of deliberate indifference, it is not clear whether a supervisor nevertheless must intend to violate the constitution. While Iqbal “was a discrimination case involving discriminatory purpose,” Arnett, 658 F.3d at 757, the Supreme Court “stated that ‘purpose rather than knowledge is required to impose Bivens liability,’” id. (citing Iqbal, 129 S.Ct. at 1949), and therefore the reasoning of Iqbal “has raised questions about whether a stricter standard of personal liability for supervisors applies in deliberate indifference suits.” Arnett, 658 F.3d at757. The Seventh Circuit concluded that “[t]he landscape of such claims after Iqbal remains murky. . . .” Id. (emphasis added).
If Intent to Harm Is Required, Is It Satisfied by Subjective Deliberate Indifference?
The Seventh Circuit recently addressed the implications of Iqbal on a claim against a supervisor for a constitutional violation that does not itself require intent. Vance v. Rumsfeld, 701 F.3d 193 (7th Cir. 2012) (en banc), cert. denied, U.S. 133 S. Ct. 2796 (June 10, 2013). Unlike Iqbal,the constitutional right was not invidious discrimination but a constitutional claim governed by a standard less than intent. Yet the Seventh Circuit held that the supervisor’s intent was required: “[k]nowledge of a subordinate’s misconduct is not enough for liability. The supervisor can be liable only if he wants the unconstitutional or illegal conduct to occur.” Vance, 701 F.3d at 203 (emphasis added). The Seventh Circuit held that “[t]he supervisor must want the forbidden outcome to occur” but that subjective deliberate indifference “is a form of intent” and therefore inaction could be culpable if “the public official knew of risks with sufficient specificity to allow an inference that inaction is designed to produce or allow harm.” Id. at 204.
Vance does not fully answer the question of what standard governs a constitutional claim against supervisors. The plaintiffs in Vance were security contractors in Iraq who were detained by the military and subjected to violence, sleep deprivation, and other “harsh interrogation methods” authorized by Defense Secretary Donald Rumsfield for enemy combatants, but not authorized for civilian contractors. Vance, 701 F.3d at 196; id. at 203. The plaintiffs sued very high-level officials of a very large bureaucracy, the U.S. military. Perhaps Vance will be limited to Bivens claims, or to high-ranking officials in huge agencies with a long chain of subordinates between them and the actors who inflicted harm. But dicta suggest that Vance also applies to lower-ranking officials subject to section 1983 liability. Id. at 205 (“Every police chief knows that some officers shoot unnecessarily . . . [b]ut heads of organizations have never been held liable on the theory that they did not do enough to combat subordinates’ misconduct, and the Supreme Court made it clear in Iqbal that such theories of liability are unavailing”). The Supreme Court could have clarified the standard but denied certiorari in June 2013.
The various approaches taken by just one circuit highlight the continuing uncertainty about Iqbal’s effect onsupervisory liability. Existing Seventh Circuit precedent analyzes claims against supervisors (1) as a question of causation under section 1983 by asking if the supervisor knew about the conduct and turned a blind eye (Backes); (2) as a constitutional question where the standard varies with the requirements of the constitutional claim (TE; Arnett; Paine); (3) as a constitutional question but reserving the question of whether a supervisor must intend to violate the constitution even if the constitutional standard does not require intent (Arnett); (4) as a constitutional question and holding a supervisor must intend to violate the constitution even if the constitutional standard does not require intent but holding subjective deliberate indifference is a form of intent (Vance). And there are other uncertainties, such as the effect of the Seventh Circuit’s en bancdecision in Vance and the variations in approaches taken by the Seventh Circuit in its non-precedential opinions.
Because the Supreme Court chose not to use Vance as a vehicle to clarify the standard when it denied cert in June 2013, litigators in the Seventh Circuit likely will have to argue in the alternative when litigating supervisory-liability claims, at least until the Seventh Circuit itself clarifies this “murky” doctrine.
Keywords: civil rights litigation, section 1983, 42 U.S.C. 1983, supervisor, supervisory liability, Iqbal, Seventh Circuit, Bivens, knowledge and acquiescence, blind eye
Sarah E. Ricks is a clinical professor at Rutgers School of Law-Camden.