As was discussed at Crime & Federalism, there was a recent US Supreme Court decision – Ashcroft v. Iqbal – which drastically changes a component of most civil rights actions – “supervisory liability.” Generally, when police officers/departments are sued for civil rights violations under federal law (42 USC 1983), it is generally alleged that the supervisors are liable for the actions of the subordinate officers.  It used to be that this could be proven without actually having to prove that there was, for instance, a memo issued by the supervisor to engage in a civil rights violation.  It could be proven by showing any type of ratification or acquiescence.

In in City of Canton v. Harris, the Supreme Court held that supervisory liablity may attach where “policymakers were aware of, and acquiesced in, apattern of constitutional violations.”  But in Aschcroft v. Iqbal, the Court ignored Canton and held that:

[Plaintiff] argues that, under a theoryof “supervisory liability,” petitioners can be liable for “knowledge and acquiescence in their subordinates’ use of discriminatory criteria to make classification decisions among detainees.” That is to say, respondent believes a supervisor’s mere knowledge of his subordinate’s discriminatory purpose amounts to the supervisor’s violating the Constitution. We reject this argument. Respondent’s conception of “supervisory liability” is inconsistent with his accurate stipulation that petitioners may not be held accountable for the misdeed sof their agents. In a §1983 suit or a Bivens action—where masters do not answer for the torts of their servants—the term “supervisory liability” is a misnomer. Absent vicarious liability, each 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 clearly established right to overcome qualified immunity, purpose rather than knowledge is required to impose 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.

So now you have a situation where the Court says that supervisors will be accountable for their own conduct, but where they are not actually liable for their own conduct.  Yes, if they taser a 90 year old grandmother who is handcuffed in the back of a patrol car, they will be liable for that.  But if through inadequate supervision (hence the term “supervisor”) they allow their subordinates to do so without stopping them or otherwise “supervising” them, they are not accountable.

Regardless, this probably will not make much difference here in West Virginia since if you ask most defense attorneys in West Virginia, they can’t recall one case of a plaintiff ever even actually recovering on grounds of “supervisory liability” in a federal police liability action.  It’s just too much of an ancillary issue and too difficult to prove in most cases.

– John H. Bryan, West Virginia Attorney.