By Kit Kinports. 114 Penn St. L. Rev. ___. *(forthcoming in Iqbal Symposium Issue)
This author welcomes responses to this abstract and the upcoming article. The author may be contacted at:
- E-mail: kxk47@psu.edu
- Phone: (814) 865-8907
Abstract:
In determining the reach of constitutional tort liability, the courts have traditionally balanced the goals of deterring constitutional violations 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 balanced by holding supervisors 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 controversy among scholars, lower court decisions prior to Iqbal generally acknowledged the concept of supervisory liability, though differing on the requisite standard of liability.
The same competing concerns animate the Supreme Court jurisprudence governing the qualified immunity defense. It is therefore tempting to criticize Iqbal’s rejection of supervisory liability on the grounds that qualified immunity sufficiently addresses the relevant governmental interests and protects high-ranking public officials. But that critique is itself subject to challenge given the complications that arise in applying the qualified immunity defense to supervisors. In such cases, the relevance of both the substance of the particular constitutional right violated by the subordinate official and the supervisory liability standard creates confusion as to precisely what must be “clearly established” in order to immunize a supervisory official. This article explores the complications surrounding the qualified immunity inquiry as it applies to supervisors, analyzing whether they help justify the Court’s disapproval of supervisory liability in Iqbal.