XI. Liability of Supervisors

• Library: Sword and Shield: A Practical Approach to Section 1983 Litigation (ABA) (2015 Ed.)

XI. LIABILITY OF SUPERVISORS

Section 1983 plaintiffs often seek to impose money liability not only upon the officer who directly engaged in the unconstitutional conduct (e.g., a police officer) but also upon a supervisory official (e.g., the chief of police). The claim against the supervisor may be premised upon allegations, for example, that the supervisor was responsible for a policy or practice enforced by the line officer or actually participated in the constitutional violation. Beyond these two obvious bases for imposing § 1983 liability against a supervisor, there is much uncertainty as to what other circumstances may justify the imposition of § 1983 liability against a supervisory official.

A. Comparison with Municipal Liability

Like municipal liability claims, claims against supervisors normally seek to impose liability upon one party (the supervisor) for a wrong directly inflicted by another party (the subordinate). The reference to "normally" reflects the fact that in some cases a supervisor may have directly inflicted the harm upon the § 1983 plaintiff—for example, when a supervisory police officer participates in the infliction of excessive force. Like § 1983 municipal liability, § 1983 liability against a supervisory official may not be based upon respondeat superior but only upon the supervisor's own wrongful acts or omissions. In other words, the supervisor in some way must have been sufficiently personally involved in the violation of the plaintiff's federal rights. And, like municipal liability, there must be sufficient causal link or nexus between the supervisor's wrongful conduct or failure to act and the violation of the plaintiff's federally protected right.

On the other hand, there are important differences between a supervisory official's liability and municipal liability:

1. A supervisory official's liability is a form of personal liability; municipal liability is a form of entity liability.
2. Because a supervisory official's liability is personal liability, supervisors may assert a common-law absolute or qualified immunity defense.²²⁸ Municipalities may not assert these defenses, although it should be recalled that municipalities sued under § 1983 are absolutely immune from punitive damages.²²⁹
3. A municipal entity may be liable under § 1983 only when the violation of the plaintiff's federal right is attributable to the enforcement of a municipal policy or practice. By contrast, the liability of a supervisory official does not depend upon a municipal policy or practice.

B. Standards for Imposing Liability against Supervisors

In Ashcroft v. Iqbal,²³⁰ the Supreme Court ruled that because there is no respondeat superior liability under § 1983 (or in Bivens) actions, a supervisory official, like any other § 1983 defendant, can be held liable only on the basis of his own conduct that proximately caused a violation of the plaintiff's federally protected right. Given the rule against respondeat superior liability, "'supervisory liability' is a misnomer," the Court said.

[E]ach 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 a clearly established right to overcome qualified immunity, [discriminatory] purpose rather than knowledge is required to impose [§ 1983 or] 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.²³¹

In other words, the supervisor must have been sufficiently personally involved in the alleged...