Supervisory Liability After Iqbal: Misunderstood But Not Misnamed

Abstract

Professors Sheldon Nahmod and Kit Kinports have both written excellent pieces about the supervisory liability aspect of Iqbal. See Kit Kinports, "Iqbal and Supervisory Immunity," 114 Penn. St. L. Rev. 1291 (2010); Sheldon Nahmod, "Constitutional Torts, Over-Deterrence and Supervisory Liability After Iqbal," 14 Lewis & Clark L. Rev. 279 (2010). Professor Nahmod lays out an impressive defense of the decision and concludes that the Court "got it right" in Iqbal when it adopted what he characterizes as the "constitutional" approach to supervisory liability, while Professor Kinports criticizes the majority’s failure to recognize a theory of supervisory accountability based on deliberate indifference to constitutional violations committed by subordinates, a theory that is not based on respondeat superior but on the supervisor's own culpability in causing a constitutional injury. Because no two law professors should ever be accused of agreeing about anything, I take a position that falls somewhere between the Nahmod and Kinports views. In short, I agree with Professor Nahmod that supervisory liability, as a form of individual liability, should be based on a constitutional violation by the supervisor. This is clearly what Iqbal requires. I also agree with Professor Kinports that deliberate indifference that "causes" one to be subjected to a constitutional violation by a subordinate should be actionable under the statutory language of § 1983, but I would be clear that the "deliberate indifference "standard is the "constitutional" one that requires a showing of actual subjective knowledge of a subordinate's wrongdoing and a failure to prevent, remedy, or address the problem. What I propose is a free-standing, uniform substantive due process standard for supervisory liability that would apply to all claims based on a supervisor’s "failure-to-___."