Iqbal and Supervisory Immunity

By Kit Kinports.

In determining the reach of constitutional tort liability, the Supreme Court has traditionally balanced the goals of deterring constitutional misconduct and compensating those whose rights have been violated against the governmental interest in ensuring that public officials are not unduly inhibited in the performance of their duties. I have previously argued that those competing interests are best accommodated by holding supervisory government officials liable for the constitutional misdeeds of their subordinates so long as the supervisors themselves were personally culpable—that is, at least negligent—and so long as their negligence caused the deprivation of constitutional rights. Although this question has generated some controversy in academic circles, lower court decisions prior to Ashcroft v. Iqbal generally acknowledged the concept of supervisory accountability, though differing on the appropriate standard of liability.

In Ashcroft v. Iqbal, the Supreme Court disagreed, of course, apparently rejecting the notion of supervisory liability for both Bivens and § 1983 suits. Specifically, the Court held that constitutional tort liability hinges on proof that each defendant, “through the official’s own individual actions, has violated the Constitution.” The sole rationale the Court offered for this decision was its desire to avoid vicarious liability—to ensure that all government officials, their “title notwithstanding,” are responsible only for their “own misconduct” and not for “the misdeeds of their agents.” The Court’s cursory treatment of this issue, without the benefit of briefing or oral argument, seems to make an unwarranted leap from the importance of personal culpability to the conclusion that government officials may not be held liable for constitutional injuries inflicted by their subordinates.
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