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Student Brief: Nahmod on Constitutional Torts, Over-Deterrence and Supervisory Liability After Iqbal

By student blogger Moshe Marvit

Recently Professor Sheldon Nahmod presented a talk to the Chicago-Kent College of Law faculty about the Supreme Court’s recent decision of Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009). Though the case is primarily a pleadings case involving §1983 pleading requirements after Twombly, the talk focused on the Court’s revisionist treatment of §1983 supervisory liability.

Professor Nahmod’s talk, entitled, “Consitutional Torts, Over-Deterrence and Supervisory Liability After Iqbal,” proceeded in three parts. First a primer on §1983 and Bivens actions was discussed, with particular attention paid to the purposes of §1983, the role of immunities, and the statutes so called “background of tort liability.” Next, Professor Nahmod discussed the role that deterrence, and perhaps over-deterrence, has played in the developing interpretation of the statute. Finally, a framework for understanding the different approaches that the Court has taken towards supervisory liability was provided, and an argument made for why the Court’s current approach in Iqbal is inconsistent with the statute’s purposes and prior precedent.

42 USC §1983 was passed in 1871 in order to enforce the 14th Amendment and provide compensation for persons deprived of constitutional rights, and to serve as deterrence to government officials. The language of the statute contains a causation clause, stating that a person under color of law who “subjects, or causes to be subjected” any citizen to a constitutional deprivation is liable under the statute.

§1983 has been interpreted against the background of tort immunities, including absolute individual immunities and qualified immunities. Absolute individual immunities are available for prosecutors for the performance of  “advocative” functions, judges for the performance of judicial functions, and legislators for the performance of legislative functions. These functional absolute immunities serve the purpose of allowing certain officials the freedom to act independently without fear of being dragged into court. Qualified immunities are stated as an affirmative defense, but have been transformed into the functional equivalent of absolute immunities. Qualified immunities used to require a subjective and objective belief that the official was acting constitutionally, but the subjective part of the test has since been eliminated. Furthermore, qualified immunity is now decided before discovery, and district courts no longer must first rule on the constitutional merits prior to ruling on qualified immunity.

The Supreme Court’s transformation of qualified immunity into something that acts like absolute immunity has been due to the Court’s concern with over-deterrence.  The Court is greatly concerned about fairness to the defendant who must act quickly and use independent judgment, while providing what Professor Nahmod called an “optimally chilling” effect on their conduct. This concern with over-deterrence has migrated from the immunity setting to the constitutional analysis setting and now, with Iqbal, has further migrated to the pleadings setting.

Two examples of such concern with over-deterrence can be found in the Supreme Court’s ratcheting up the state of mind requirements for 8th Amendment violations and Substantive Due Process violations. In these settings, and others, the state of mind requirement serves a gatekeeper function. In Wilson v. Seiter, 501 U.S. 294 (1991), the Supreme Court ratcheted up the state of mind requirement in the prison context, holding that only willful or wanton conduct will make a prison official liable in the confinement of prisoners. A second example can be found in the Court’s treatment of Substantive Due Process violations stemming from high-speed police chases. In County of Sacramento v. Lewis, 523 U.S. 833 (1998), the Supreme Court feared that a deliberate indifference standard, as it had existed, would over-deter police officers in stressful situations, so it set a new standard of “purpose to do harm.”

In Ashcroft v. Iqbal, Attorney General Ashcroft and Director of the F.B.I. Mueller were sued in connection with prison conditions for individuals detained after the attacks of September 11th. Iqbal alleged that Ashcroft and Mueller violated 14th Amendment Equal Protection by developing policies that discriminated against him and others based solely on ethnicity or race, and are therefore liable under §1983 supervisory liability. The Supreme Court said there was not a heightened pleading standard for §1983, but still applied a sort of “plausibility” standard with bite and held that Iqbal had not properly plead.

Without any briefings on the issue, the Court proceeded to change the §1983 supervisory liability standard. In looking at the issue of supervisory liability, the Court said that in order to be liable, Ashcroft and Mueller must themselves violate Equal Protection. The Court said that neither deliberate indifference nor actual knowledge is enough. In requiring purposeful discrimination the Court followed what Professor Nahmod termed the “constitutional approach.” This approach requires that the required state of mind of a supervisor tracks the state of mind required for the underlying constitutional violation. This is in contrast to the “causation approach,” applied in the circuits and in cases such as City of Canton v. Harris, 489 US 378 (1989).

Though the Supreme Court appears to be making it tougher to bring a §1983 supervisory liability claim, there are some unintended consequences associated with the “constitutional approach.” (This may in part be the result of ruling on the matter without the benefit of any briefings.) In the Equal Protection setting, the state of mind requirement for supervisors has effectively been raised, but different constitutional violations have different state of mind requirements. In 4th Amendment excessive force situations, the state of mind requirement is objective unreasonableness. 490 US 386 (1989). If one were to apply Iqbal’s constitutional approach, then the supervisor’s state of mind would only have to be objective unreasonableness as well, thereby expanding the scope of liability in this setting. In other settings, such as 8th Amendment violations and Substantive Due Process violations, the state of mind required is already deliberate indifference, so Iqbal may have no practical effect.

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