Iqbal and Supervisory Immunity

Prior to the Supreme Court’s 2009 decision in Ashcroft v. Iqbal, the federal courts generally acknowledged that high-ranking government officials could be held liable for the constitutional injuries inflicted by their subordinates, though they differed on the appropriate standard of supervisory liability. In Iqbal, the Supreme Court called this case law into question, holding that constitutional tort liability hinges on proof that each defendant, “through the official’s own individual actions, has violated the Constitution.” The Court’s cursory treatment of this issue, without the benefit of briefing or oral argument, was based entirely on the misguided assumption that the doctrine of supervisory liability is indistinguishable from respondent superior. This article critiques Iqbal’s discussion of supervisory liability, responding to the Court and those who have defended its ruling. The article then turns to the qualified immunity defense and the federal courts’ analysis of immunity issues in litigation involving supervisory officials. It is tempting to criticize Iqbal’s analysis of supervisory liability on the grounds that qualified immunity sufficiently addresses the relevant governmental interests and protects high-ranking public officials. But that objection is itself subject to challenge given the complications that arise in applying the qualified immunity defense to supervisors. The article explores those difficulties and criticizes the bifurcated approach to qualified immunity adopted by some courts, which immunizes a supervisor unless both the subordinate’s constitutional violation and the supervisor’s liability for that violation are clearly established. The interests underlying the immunity defense are adequately accommodated, the article concludes, if qualified immunity is denied to a supervisor who is deliberately indifferent to a subordinate’s violation of clearly established constitutional law. Finally, the article assesses Iqbal’s impact on efforts to hold supervisors accountable for constitutional wrongdoing, explaining that, stripped to its essential holding, the opinion need not inexorably lead to a wholesale reworking of the doctrine of supervisory liability. The Court’s attention was directed to the mental state required to impose liability on a high-ranking government official, and its references to discriminatory purpose and supervisory policy-making were linked to the specific allegations contained in Iqbal’s complaint. Moreover, following the lead of some federal appellate courts, the Court may have assumed that supervisory officials do violate constitutional norms when they act with the state of mind required to violate a particular constitutional provision and fail to adequately supervise the subordinate who inflicted constitutional injury. Such a failure to act in the face of a legal duty would suffice to establish criminal culpability on an accomplice liability theory, and public officials should at the very least be expected to live up to that standard. The record in the federal courts of appeals since Iqbal is somewhat sparse and inconclusive, and does not yet reliably indicate how expansively the courts will interpret the Supreme Court’s ruling. But absent further clarification from the Supreme Court, the decision need not be interpreted as working a sea change in the rules governing supervisory accountability for constitutional torts