C. Duty and Causation

RIZZO v. GOODE, 423 U.S. 362 (1976)

Philadelphia Mayor Frank Rizzo
Philadelphia Mayor Frank Rizzo.  Warren M Winterbottom. AP.

Mr. Justice Rehnquist delivered the opinion of the Court.

[1]The District Court for the Eastern District of Pennsylvania, after parallel trials of separate actions filed in 1970, entered an order in 1973 requiring petitioners “to submit to [the District] Court for its approval a comprehensive program for improving the handling of citizen complaints alleging police misconduct” in accordance with a comprehensive opinion filed together with the order. The proposed program, negotiated between petitioners and respondents for the purpose of complying with the order, was incorporated six months later into a final judgment. Petitioner City Police Commissioner was thereby required, inter alia, to put into force a directive governing the manner by which citizens’ complaints against police officers should henceforth be handled by the department. The Court of Appeals for the Third Circuit, upholding the District Court’s finding that the existing procedures for handling citizen complaints were “inadequate,” affirmed the District Court’s choice of equitable relief: “The revisions were … ordered because they appeared to have the potential for prevention of future police misconduct.” 506 F.2d 542, 548 (CA3 1974). We granted certiorari to consider petitioners’ claims that the judgment of the District Court represents an unwarranted intrusion by the federal judiciary into the discretionary authority committed to them by state and local law to perform their official functions. We find ourselves substantially in agreement with these claims, and we therefore reverse the judgment of the Court of Appeals.

I

[2]The central thrust of respondents’ efforts in the two trials was to lay a foundation for equitable intervention, in one degree or another, because of an assertedly pervasive pattern of illegal and unconstitutional mistreatment by police officers. This mistreatment was said to have been directed against minority citizens in particular and against all Philadelphia residents in general. The named individual and group respondents were certified to represent these two classes. The principal petitioners here—the Mayor, the City Managing Director, and the Police Commissioner—were charged with conduct ranging from express authorization or encouragement of this mistreatment to failure to act in a manner so as to assure that it would not recur in the future.

[3]Hearing some 250 witnesses during 21 days of hearings, the District Court was faced with a staggering amount of evidence; each of the 40-odd incidents might alone have been the piece de resistance of a short, separate trial. The District Court carefully and conscientiously resolved often sharply conflicting testimony, and made detailed findings of fact, which both sides now accept, with respect to eight of the incidents presented by the Goode respondents and with respect to 28 of those presented by COPPAR.

[4]The principal antagonists in the eight incidents recounted in Goode were Officers DeFazio and D’Amico, members of the city’s “Highway Patrol” force. They were not named as parties to the action. The District Court found the conduct of these officers to be violative of the constitutional rights of the citizen complainants in three of the incidents, and further found that complaints to the police Board of Inquiry had resulted in one case in a relatively mild five-day suspension and in another case a conclusion that there was no basis for disciplinary action.

[5]In only two of the 28 incidents recounted in COPPAR (which ranged in time from October 1969 to October 1970) did the District Court draw an explicit conclusion that the police conduct amounted to a deprivation of a federally secured right; it expressly found no police misconduct whatsoever in four of the incidents; and in one other the departmental policy complained of was subsequently changed. As to the remaining 21, the District Court did not proffer a comment on the degree of misconduct that had occurred: whether simply improvident, illegal under police regulations or state law, or actually violative of the individual’s constitutional rights. Respondents’ brief asserts that of this latter group, the facts as found in 14 of them “reveal [federal] violations.” While we think that somewhat of an overstatment, we accept it, arguendo, and thus take it as established that, insofar as the COPPAR record reveals, there were 16 incidents occurring in the city of Philadelphia over a year’s time in which numbers of police officers violated citizens’ constitutional rights. Additionally, the District Court made reference to citizens’ complaints to the police in seven of those 16; in four of which, involving conduct of constitutional dimension, the police department received complaints but ultimately took no action against the offending officers.

[6]The District Court made a number of conclusions of law, not all of which are relevant to our analysis. It found that the evidence did not establish the existence of any policy on the part of the named petitioners to violate the legal and constitutional rights of the plaintiff classes, but it did find that evidence of departmental procedure indicated a tendency to discourage the filing of civilian complaints and to minimize the consequences of police misconduct. It found that as to the larger plaintiff class, the residents of Philadelphia, only a small percentage of policemen commit violations of their legal and constitutional rights, but that the frequency with which such violations occur is such that “they cannot be dismissed as rare, isolated instances.” COPPAR v. Rizzo, 357 F. Supp. 1289, 1319 (E.D. Pa. 1973). In the course of its opinion, the District Court commented:

“In the course of these proceedings, much of the argument has been directed toward the proposition that courts should not attempt to supervise the functioning of the police department. Although, contrary to the defendants’ assertions, the Court’s legal power to do just that is firmly established, … I am not persuaded that any such drastic remedy is called for, at least initially, in the present cases.” Id., at 1320.

[7]The District Court concluded by directing petitioners to draft, for the court’s approval, “a comprehensive program for dealing adequately with civilian complaints,” to be formulated along the following “guidelines” suggested by the court:

“(1) Appropriate revision of police manuals and rules of procedure spelling out in some detail, in simple language, the ‘dos and don’ts’ of permissible conduct in dealing with civilians (for example, manifestations of racial bias, derogatory remarks, offensive language, etc.; unnecessary damage to property and other unreasonable conduct in executing search warrants; limitations on pursuit of persons charged only with summary offenses; recording and processing civilian complaints, etc.). (2) Revision of procedures for processing complaints against police, including (a) ready availability of forms for use by civilians in lodging complaints against police officers; (b) a screening procedure for eliminating frivolous complaints; (c) prompt and adequate investigation of complaints; (d) adjudication of nonfrivolous complaints by an impartial individual or body, insulated so far as practicable from chain of command pressures, with a fair opportunity afforded the complainant to present his complaint, and to the police officer to present his defense; and (3) prompt notification to the concerned parties, informing them of the outcome.” Id., at 1321.

[8]While noting that the “guidelines” were consistent with “generally recognized minimum standards” and imposed “no substantial burdens” on the police department, the District Court emphasized that respondents had no constitutional right to improved police procedures for handling civilian complaints. But given that violations of constitutional rights of citizens occur in “unacceptably” high numbers, and are likely to continue to occur, the court-mandated revision was a “necessary first step” in attempting to prevent future abuses. Ibid. On petitioners’ appeal the Court of Appeals affirmed.

II

[9]These actions were brought, and the affirmative equitable relief fashioned, under the Civil Rights Act of 1871, 42 U.S.C. § 1983. It provides that “[e]very person who, under color of [law] subjects, or causes to be subjected, any … person within the jurisdiction [of the United States] to the deprivation of any rights … secured by the Constitution and laws, shall be liable to the party injured in an action at law [or] suit in equity.” The plain words of the statute impose liability—whether in the form of payment of redressive damages or being placed under an injunction—only for conduct which “subjects, or causes to be subjected” the complainant to a deprivation of a right secured by the Constitution and laws.

[10]The findings of fact made by the District Court at the conclusion of these two parallel trials—in sharp contrast to that which respondents sought to prove with respect to petitioners—disclose a central paradox which permeates that court’s legal conclusions. Individual police officers not named as parties to the action were found to have violated the constitutional rights of particular individuals, only a few of whom were parties plaintiff. As the facts developed, there was no affirmative link between the occurrence of the various incidents of police misconduct and the adoption of any plan or policy by petitioners—express or otherwise—showing their authorization or approval of such misconduct. Instead, the sole causal connection found by the District Court between petitioners and the individual respondents was that in the absence of a change in police disciplinary procedures, the incidents were likely to continue to occur, not with respect to them but as to the members of the classes they represented. In sum, the genesis of this lawsuit—a heated dispute between individual citizens and certain policemen—has evolved into an attempt by the federal judiciary to resolve a “controversy” between the entire citizenry of Philadelphia and the petitioning elected and appointed officials over what steps might, in the Court of Appeals’ words, “[appear] to have the potential for prevention of future police misconduct.” 506 F.2d, at 548. The lower courts have, we think, overlooked several significant decisions of this Court in validating this type of litigation and the relief ultimately granted.

A

[11]We first of all entertain serious doubts whether on the facts as found there was made out the requisite Art. III case or controversy between the individually named respondents and petitioners. In O’Shea v. Littleton, 414 U.S. 488 (1974), the individual respondents, plaintiffs in the District Court, alleged that petitioners, a county magistrate and judge, had embarked on a continuing, intentional practice of racially discriminatory bond setting, sentencing, and assessing of jury fees. No specific instances involving the individual respondents were set forth in the prayer for injunctive relief against the judicial officers. And even though respondents’ counsel at oral argument had stated that some of the named respondents had in fact “suffered from the alleged unconstitutional practices,” the Court concluded that “[p]ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief, however, if unaccompanied by any continuing, present adverse effects.” Id., at 495-496. The Court further recognized that while “past wrongs are evidence bearing on whether there is a real and immediate threat of repeated injury,” the attempt to anticipate under what circumstances the respondents there would be made to appear in the future before petitioners “takes us into the area of speculation and conjecture.” Id., at 496-497. These observations apply here with even more force, for the individual respondents’ claim to “real and immediate” injury rests not upon what the named petitioners might do to them in the future—such as set a bond on the basis of race—but upon what one of a small, unnamed minority of policemen might do to them in the future because of that unknown policeman’s perception of departmental disciplinary procedures. This hypothesis is even more attenuated than those allegations of future injury found insufficient in O’Shea to warrant invocation of federal jurisdiction. Thus, insofar as the individual respondents were concerned, we think they lacked the requisite “personal stake in the outcome,” Baker v. Carr, 369 U.S. 186, 204 (1962), i.e., the order overhauling police disciplinary procedures.

B

[12]That conclusion alone might appear to end the matter, for O’Shea also noted that “if none of the named plaintiffs … establishes the requisite of a case or controversy with the defendants, none may seek relief on behalf of himself or any other member of the class” which they purport to represent. 414 U.S., at 494. But, unlike O’Shea, this case did not arise on the pleadings. The District Court, having certified the plaintiff classes, bridged the gap between the facts shown at trial and the classwide relief sought with an unprecedented theory of § 1983 liability. It held that the classes’ § 1983 actions for equitable relief against petitioners were made out on a showing of an “unacceptably high” number of those incidents of constitutional dimension—some 20 in all—occurring at large in a city of three million inhabitants, with 7,500 policemen.

[13]Nothing in Hague v. CIO, 307 U.S. 496 (1939), the only decision of this Court cited by the District Court,[1] or any other case from this Court, supports such an open-ended construction of § 1983. In Hague, the pattern of police misconduct upon which liability and injunctive relief were grounded was the adoption and enforcement of deliberate policies by the defendants there (including the Mayor and the Chief of Police) of excluding and removing the plaintiff’s labor organizers and forbidding peaceful communication of their views to the citizens of Jersey City. These policies were implemented “by force and violence” on the part of individual policemen. There was no mistaking that the defendants proposed to continue their unconstitutional policies against the members of this discrete group.

[14]Likewise, in Allee v. Medrano, 416 U.S. 802 (1974), relied upon by the Court of Appeals and respondents here, we noted:

“The complaint charged that the enjoined conduct was but one part of a single plan by the defendants, and the District Court found a pervasive pattern of intimidation in which the law enforcement authorities sought to suppress appellees’ constitutional rights. In this blunderbuss effort the police not only relied on statutes … found constitutionally deficient, but concurrently exercised their authority under valid laws in an unconstitutional manner.” Id., at 812 (emphasis added).

The numerous incidents of misconduct on the part of the named Texas Rangers, as found by the District Court and summarized in this Court’s opinion, established beyond peradventure not only a “persistent pattern” but one which flowed from an intentional, concerted, and indeed conspiratorial effort to deprive the organizers of their First Amendment rights and place them in fear of coming back. Id., at 814-815.

[15]Respondents stress that the District Court not only found an “unacceptably high” number of incidents but held, as did the Court of Appeals, that “when a pattern of frequent police violations of rights is shown, the law is clear that injunctive relief may be granted.” 357 F. Supp., at 1318 (emphasis added). However, there was no showing that the behavior of the Philadelphia police was different in kind or degree from that which exists elsewhere; indeed, the District Court found “that the problems disclosed by the record … are fairly typical of [those] afflicting police departments in major urban areas.” Ibid. Thus, invocation of the word “pattern” in a case where, unlike Hague and Medrano, the defendants are not causally linked to it, is but a distant echo of the findings in those cases. The focus in Hague and Medrano was not simply on the number of violations which occurred but on the common thread running through them: a “pervasive pattern of intimidation” flowing from a deliberate plan by the named defendants to crush the nascent labor organizations. Medrano, supra, at 811. The District Court’s unadorned finding of a statistical pattern is quite dissimilar to the factual settings of these two cases.

[16]The theory of liability underlying the District Court’s opinion, and urged upon us by respondents, is that even without a showing of direct responsibility for the actions of a small percentage of the police force, petitioners’ failure to act in the face of a statistical pattern is indistinguishable from the active conduct enjoined in Hague and Medrano. Respondents posit a constitutional “duty” on the part of petitioners (and a corresponding “right” of the citizens of Philadelphia) to “eliminate” future police misconduct; a “default” of that affirmative duty being shown by the statistical pattern, the District Court is empowered to act in petitioners’ stead and take whatever preventive measures are necessary, within its discretion, to secure the “right” at issue. Such reasoning, however, blurs accepted usages and meanings in the English language in a way which would be quite inconsistent with the words Congress chose in § 1983. We have never subscribed to these amorphous propositions, and we decline to do so now.

[17]Respondents claim that the theory of liability embodied in the District Court’s opinion is supported by desegregation cases such as Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971). But this case, and the long line of precedents cited therein, simply reaffirmed the body of law originally enunciated in Brown v. Board of Education, 347 U.S. 483 (1954):

“Nearly 17 years ago this Court held, in explicit terms, that state-imposed segregation by race in public schools denies equal protection of the laws. At no time has the Court deviated in the slightest degree from that holding or its constitutional underpinnings….

“Once a right and a violation have been shown, the scope of a district court’s equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies.” Swann, supra, at 11, 15.

[18]Respondents, in their effort to bring themselves within the language of Swann, ignore a critical factual distinction between their case and the desegregation cases decided by this Court. In the latter, segregation imposed by law had been implemented by state authorities for varying periods of time, whereas in the instant case the District Court found that the responsible authorities had played no affirmative part in depriving any members of the two respondent classes of any constitutional rights. Those against whom injunctive relief was directed in cases such as Swann and Brown were not administrators and school board members who had in their employ a small number of individuals, which latter on their own deprived black students of their constitutional rights to a unitary school system. They were administrators and school board members who were found by their own conduct in the administration of the school system to have denied those rights. Here, the District Court found that none of the petitioners had deprived the respondent classes of any rights secured under the Constitution. Under the well-established rule that federal “judicial powers may be exercised only on the basis of a constitutional violation,” Swann, supra, at 16, this case presented no occasion for the District Court to grant equitable relief against petitioners.

C

[19]Going beyond considerations concerning the existence of a live controversy and threshold statutory liability, we must address an additional and novel claim advanced by respondent classes. They assert that given the citizenry’s “right” to be protected from unconstitutional exercises of police power, and the “need for protection from such abuses,” respondents have a right to mandatory equitable relief in some form when those in supervisory positions do not institute steps to reduce the incidence of unconstitutional police misconduct. The scope of federal equity power, it is proposed, should be extended to the fashioning of prophylactic procedures for a state agency designed to minimize this kind of misconduct on the part of a handful of its employees. But on the facts of this case, not only is this novel claim quite at odds with the settled rule that in federal equity cases “the nature of the violation determines the scope of the remedy,” ibid., important considerations of federalism are additional factors weighing against it. Where, as here, the exercise of authority by state officials is attacked, federal courts must be constantly mindful of the “special delicacy of the adjustment to be preserved between federal equitable power and State administration of its own law.” Stefanelli v. Minard, 342 U.S. 117, 120 (1951), quoted in O’Shea v. Littleton, 414 U.S., at 500.

[20]Section 1983 by its terms confers authority to grant equitable relief as well as damages, but its words “allow a suit in equity only when that is the proper proceeding for redress, and they refer to existing standards to determine what is a proper proceeding.” Giles v. Harris, 189 U.S. 475, 486 (1903) (Holmes, J.). Even in an action between private individuals, it has long been held that an injunction is “to be used sparingly, and only in a clear and plain case.” Irwin v. Dixion, 9 How. 10, 33 (1850). When a plaintiff seeks to enjoin the activity of a government agency, even within a unitary court system, his case must contend with “the well-established rule that the Government has traditionally been granted the widest latitude in the ‘dispatch of its own internal affairs,’ Cafeteria Workers v. McElroy, 367 U.S. 886, 896 (1961),” quoted in Sampson v. Murray, 415 U.S. 61, 83 (1974). The District Court’s injunctive order here, significantly revising the internal procedures of the Philadelphia police department, was indisputably a sharp limitation on the department’s “latitude in the ‘dispatch of its own internal affairs.'”

[21]When the frame of reference moves from a unitary court system, governed by the principles just stated, to a system of federal courts representing the Nation, subsisting side by side with 50 state judicial, legislative, and executive branches, appropriate consideration must be given to principles of federalism in determining the availability and scope of equitable relief. Doran v. Salem Inn, Inc., 422 U.S. 922, 928 (1975).

[22]So strongly has Congress weighted this factor of federalism in the case of a state criminal proceeding that it has enacted 28 U.S.C. § 2283 to actually deny to the district courts the authority to issue injunctions against such proceedings unless the proceedings come within narrowly specified exceptions. Even though an action brought under § 1983, as this was, is within those exceptions, Mitchum v. Foster, 407 U.S. 225 (1972), the underlying notions of federalism which Congress has recognized in dealing with the relationships between federal and state courts still have weight. Where an injunction against a criminal proceeding is sought under § 1983, “the principles of equity, comity, and federalism” must nonetheless restrain a federal court. 407 U.S., at 243.

[23]But even where the prayer for injunctive relief does not seek to enjoin the state criminal proceedings themselves, we have held that the principles of equity nonetheless militate heavily against the grant of an injunction except in the most extraordinary circumstances. In O’Shea v. Littleton, supra, at 502, we held that “a major continuing intrusion of the equitable power of the federal courts into the daily conduct of state criminal proceedings is in sharp conflict with the principles of equitable restraint which this Court has recognized in the decisions previously noted.” And the same principles of federalism may prevent the injunction by a federal court of a state civil proceeding once begun. Huffman v. Pursue, Ltd., 420 U.S. 592 (1975).

[24]Thus the principles of federalism which play such an important part in governing the relationship between federal courts and state governments, though initially expounded and perhaps entitled to their greatest weight in cases where it was sought to enjoin a criminal prosecution in progress, have not been limited either to that situation or indeed to a criminal proceeding itself. We think these principles likewise have applicability where injunctive relief is sought, not against the judicial branch of the state government, but against those in charge of an executive branch of an agency of state or local governments such as respondents here. Indeed, in the recent case of Mayor v. Educational Equality League, 415 U.S. 605 (1974), in which private individuals sought injunctive relief against the Mayor of Philadelphia, we expressly noted the existence of such considerations, saying: “There are also delicate issues of federal-state relationships underlying this case.” Id., at 615.

[25]Contrary to the District Court’s flat pronouncement that a federal court’s legal power to “supervise the functioning of the police department … is firmly established,” it is the foregoing cases and principles that must govern consideration of the type of injunctive relief granted here. When it injected itself by injunctive decree into the internal disciplinary affairs of this state agency, the District Court departed from these precepts.

[26]For the foregoing reasons the judgment of the Court of Appeals which affirmed the decree of the District Court is

Reversed.

Mr. Justice Stevens took no part in the consideration or decision of this case.

Mr. Justice Blackmun, with whom Mr. Justice Brennan and Mr. Justice Marshall join, dissenting.

[27]To be sure, federal-court intervention in the daily operation of a large city’s police department, as the Court intimates, is undesirable and to be avoided if at all possible. The Court appropriately observes, however, ante, at 367, that what the Federal District Court did here was to engage in a careful and conscientious resolution of often sharply conflicting testimony and to make detailed findings of fact, now accepted by both sides, that attack the problem that is the subject of the respondents’ complaint. The remedy was one evolved with the defendant officials’ assent, reluctant though that assent may have been, and it was one that the police department concededly could live with. Indeed, the District Court, in its memorandum of December 18, 1973, stated that “the resolution of all the disputed items was more nearly in accord with the defendants’ position than with the plaintiffs’ position,” and that the relief contemplated by the earlier orders of March 14, 1973, see COPPAR v. Rizzo, 357 F. Supp. 1289 (ED Pa.), “did not go beyond what the defendants had always been willing to accept.” App. 190a. No one, not even this Court’s majority, disputes the apparent efficacy of the relief or the fact that it effectuated a betterment in the system and should serve to lessen the number of instances of deprival of constitutional rights of members of the respondent classes. What is worrisome to the Court is abstract principle, and, of course, the Court has a right to be concerned with abstract principle that, when extended to the limits of logic, may produce untoward results in other circumstances on a future day. See Hudson County Water Co. v. McCarter, 209 U.S. 349, 355 (1908) (Holmes, J.).

[28]But the District Court here, with detailed, careful, and sympathetic findings, ascertained the existence of violations of citizens’ constitutional rights, of a pattern of that type of activity, of its likely continuance and recurrence, and of an official indifference as to doing anything about it. The case, accordingly, plainly fits the mold of Allee v. Medrano, 416 U.S. 802 (1974), and Hague v. CIO, 307 U.S. 496 (1939), despite the observation, 357 F. Supp., at 1319, that the evidence “does not establish the existence of any overall Police Department policy to violate the legal and constitutional rights of citizens, nor to discriminate on the basis of race” (emphasis supplied). I am not persuaded that the Court’s attempt to distinguish those cases from this one is at all successful. There must be federal relief available against persistent deprival of federal constitutional rights even by (or, perhaps I should say, particularly by) constituted authority on the state side.

[29]The Court entertains “serious doubts,” ante, at 371-372, as to whether there is a case or controversy here, citing O’Shea v. Littleton, 414 U.S. 488 (1974). O’Shea, however, presented quite different facts. There, the plaintiff-respondents had alleged a fear of injury from actions that would be subsequent to some future, valid arrest. The Court said:

“We assume that respondents will conduct their activities within the law and so avoid prosecution and conviction as well as exposure to the challenged course of conduct said to be followed by petitioners. Under these circumstances, where respondents do not claim any constitutional right to engage in conduct proscribed by therefore presumably permissible state laws, or indicate that it is otherwise their intention to so conduct themselves, the threat of injury from the alleged course of conduct they attack is simply too remote to satisfy the case-or-controversy requirement and permit adjudication by a federal court.” Id., at 497-498.

Here, by contrast, plaintiff-respondents are persons injured by past unconstitutional conduct (an allegation not made in the O’Shea complaint) and fear injury at the hands of the police regardless of whether they have violated a valid law.

[30]To the extent that Part II-A of the Court’s opinion today indicates that some constitutional violations might be spread so extremely thin as to prevent any individual from showing the requisite case or controversy, I must agree. I do not agree, however, with the Court’s substitution of its judgment for that of the District Court on what the evidence here shows. The Court states that what was shown was minimal, involving only a few incidents out of thousands of arrests in a city of several million population. Small as the ratio of incidents to arrests may be, the District Court nevertheless found a pattern of operation, even if no policy, and one sufficiently significant that the violations “cannot be dismissed as rare, isolated instances.” 357 F. Supp., at 1319. Nothing the Court has said demonstrates for me that there is no justification for that finding on this record. The Court’s criticism about numbers would be just as forceful, or would miss the mark just as much, with 100 incidents or 500 or even 3,000, when compared with the overall number of arrests made in the city of Philadelphia. The pattern line will appear somewhere. The District Court drew it this side of the number of proved instances. One properly may wonder how many more instances actually existed but were unproved because of the pressure of time upon the trial court, or because of reluctant witnesses, or because of inherent fear to question constituted authority in any degree, or because of a despairing belief, unfounded though it may be, that nothing can be done about it anyway and that it is not worth the effort. That it was worth the effort is convincingly demonstrated by the result in the District Court, by the affirmance, on the issues before us, by a unanimous panel of the Third Circuit, and by the support given the result below by the Commonwealth of Pennsylvania, the Philadelphia Bar Association, The Greater Philadelphia Movement, and the other entities that have filed briefs as amici curiae here in support of the respondents.

[31]The Court today appears to assert that a state official is not subject to the strictures of 42 U.S.C. § 1983 unless he directs the deprivation of constitutional rights. Ante, at 375-377. In so holding, it seems to me, the Court ignores both the language of § 1983 and the case law interpreting that language. Section 1983 provides a cause of action where a person acting under color of state law “subjects, or causes to be subjected,” any other person to a deprivation of rights secured by the Constitution and laws of the United States. By its very words, § 1983 reaches not only the acts of an official, but also the acts of subordinates for whom he is responsible. In Monroe v. Pape, 365 U.S. 167 (1961), the Court said that § 1983 “should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions,” id., at 187, and:

“It is abundantly clear that one reason the legislation was passed was to afford a federal right in federal courts because, by reason of prejudice, passion, neglect, intolerance or otherwise, state laws might not be enforced and the claims of citizens to the enjoyment of rights, privileges, and immunities guaranteed by the Fourteenth Amendment might be denied by state agencies.” Id., at 180. (Emphasis added.)

[32]I do not find it necessary to reach the question under what circumstances failure to supervise will justify an award of money damages, or whether an injunction is authorized where the superior has no consciousness of the wrongs being perpetrated by his subordinates.[2]It is clear that an official may be enjoined from consciously permitting his subordinates, in the course of their duties, to violate the constitutional rights of persons with whom they deal. In rejecting the concept that the official may be responsible under § 1983, the Court today casts aside reasoned conclusions to the contrary reached by the Courts of Appeals of 10 circuits.[3]

[33]In the instant case, the District Court found that although there was no departmental policy of racial discrimination, “such violations do occur, with such frequency that they cannot be dismissed as rare, isolated instances; and that little or nothing is done by the city authorities to punish such infractions, or to prevent their recurrence,” 357 F. Supp., at 1319, and that it “is the policy of the department to discourage the filing of such complaints, to avoid or minimize the consequences of proven police misconduct, and to resist disclosure of the final disposition of such complaints.” Id., at 1318. Needless to say, petitioners were under a statutory duty to supervise their subordinates. See Philadelphia Home Rule Charter, c. 2, § 5-200. I agree with the District Court that its findings are sufficient to bring petitioners within the ambit of § 1983.

[34]Further, the applicability of § 1983 to controlling officers allows the district courts to avoid the necessity of injunctions issued against individual officers and the consequent continuing supervision by the federal courts of the day-to-day activities of the men on the street. The District Court aptly stated:

“Respect and admiration for the performance of the vast majority of police officers cannot justify refusal to confront the reality of the abuses which do exist. But deference to the essential role of the police in our society does mandate that intrusion by the courts into this sensitive area should be limited, and should be directed toward insuring that the police themselves are encouraged to remedy the situation.” 357 F. Supp., at 1320.

[35]I would regard what was accomplished in this case as one of those rightly rare but nevertheless justified instances—just as Allee and Hague—of federal-court “intervention” in a state or municipal executive area. The facts, the deprival of constitutional rights, and the pattern are all proved in sufficient degree. And the remedy is carefully delineated, worked out within the administrative structure rather than superimposed by edict upon it, and essentially, and concededly, “livable.” In the City of Brotherly Love—or in any other American city—no less should be expected. It is a matter of regret that the Court sees fit to nullify what so meticulously and thoughtfully has been evolved to satisfy an existing need relating to constitutional rights that we cherish and hold dear.

download arrowRizzo v. Goode – Audio and Transcript of Oral Argument

Notes on Rizzo v. Goode

    1. Among other things, Rizzo v. Goode addresses whether individual state and local government officials are suable under Section 1983 for constitutional violations directly caused by subordinate officials under their supervision. On what basis does the Supreme Court find that Section 1983 does not impose liability upon supervisory officials on a pure respondeat superior theory? Is this consistent with “the background of tort liability”? See Carter v. Carlson, 447 F.2d 358, 370 n.39 (D.C. Cir. 1971), rev’d on other grounds, 409 U.S. 418 (1973) (“a superior officer is not subject to vicarious liability for the torts of his subordinate, whether at common law or under § 1983, because they are both servants of the same employer.”). At common law, who would be held vicariously liable for the constitutional harm caused by the line officers in Rizzo?
    2. May a supervisor be held vicariously liable under Section 1983 for the act of a subordinate if state law authorizes such liability? In Baskin v. Parker, 602 F.2d 1205, 1208 (5th Cir. 1979), the United States Court of Appeals for the Fifth Circuit, relying on the Supreme Court’s repudiation of vicarious municipal liability in Monell v. New York City Department of Social Services, 436 U.S. 658 (1978) (see Chapter IV, infra), refused to apply a state statute that created respondeat superior liability to an action under Section 1983:

      After parsing the language used in § 1983 and tracing legislative history, the Monell Court concluded that the official sued (in that case the city government) could not be held liable unless action by the officer or pursuant to this official policy caused a constitutional tort. In other words, it rejected respondeat superior as a theory of recovery under § 1983. We interpret Monell’s ruling as uniformly applicable to § 1983 actions in any state. Using the varying contours of local law to define the reach of a federal statutory right of action would make the availability of vicarious liability depend upon the location and, in some states, the nature of the tort. These incidental and irrelevant vagaries should not mold the contours of this national constitutional tort. Adopting each state’s law into § 1983 would create a lex loci doctrine of respondeat superior granted or withheld on the basis of state rather than federal policy.

      The language of the statute governing the remedies available in civil rights actions, 42 U.S.C. § 1988, supports our conclusion that state vicarious liability doctrines are inapplicable in § 1983 suits. Section 1988 allows state remedies to supplement remedies available under federal law when the federal remedies “are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against the law.” Section 1988 also provides that the state remedies adopted must not be inconsistent with the Constitution and the laws of the United States. Allowing Louisiana’s vicarious liability rules to govern this case would be directly contrary to Monell’s construction of § 1983, and thus to the requirements of § 1988.

      See also Jett v. Dallas Independent School District, 491 U.S. 701 (1989) (rejecting use of 42 U.S.C. § 1988 to impose vicarious municipal liability for racial discrimination under 42 U.S.C. § 1981.)

    3. The Rizzo Court found that “there was no affirmative link between the occurrence of the various incidents of police misconduct and the adoption of any plan or policy by petitioners—express or otherwise—showing their authorization or approval of such misconduct.” 423 U.S. at 371. The lower federal courts have most readily deemed Rizzo’s “affirmative link” requirement satisfied where the supervisor expressly or tacitly authorized the very conduct that offends the Constitution. See Sanders v. Kennedy, 794 F.2d 478, 482 (9th Cir. 1986) (Police chief and city council members were improperly dismissed from an action where the complaint alleged that the plaintiff’s “rights were violated pursuant to an ‘official policy, practice and custom’ of the City of Anaheim and its Police Department.”); Maggette v. Dalsheim, 709 F.2d 800, 803 (2nd Cir. 1983) (personal involvement requirement satisfied by allegations that prison superintendent “promulgated and ordered the carrying out of policies that were themselves violations of the constitutional rights.”).
    4. While the authorization theory generally is founded upon approval in advance of the subordinate’s unconstitutional act, may liability be predicated on the supervisor’s failure to remedy the constitutional violation after it occurs? In Williams v. Smith, 781 F.2d 319 (2nd Cir. 1986), a prisoner averred that he had been unconstitutionally denied the opportunity to present a witness at a prison disciplinary hearing. He sued the prison superintendent who, in addition to affirming the disciplinary action, was directly responsible for the proper conduct of disciplinary proceedings at the prison. The court of appeals reversed the lower court’s dismissal of the action against the superintendent, reasoning that the plaintiff had a right to prove that the supervisory official “actively affirm[ed] the conviction on appeal” or accepted “a custom or policy at Attica allowing that unconstitutional practice to occur.” Id. at 324. Contra Wright v. Collins, 766 F.2d 841, 850 (4th Cir. 1985) (mere review of result of disciplinary hearing does not establish affirmative link required to hold supervisor liable for due process violations at the hearing).
    5. One of the frequently sought means of meeting Rizzo’s “affirmative link” requirement is the theory that the supervisor has failed to properly train subordinate officials, who in turn transgressed constitutional norms. In Meade v. Grubbs, 841 F.2d 1512 (10th Cir. 1988), plaintiff alleged that he had been beaten by deputies while in police custody and sued the sheriff for failing to properly train the deputies. The court of appeals accepted the theory of liability, ruling that “[a] superior or municipality may be held liable where there is essentially a complete failure to train, or training that is so reckless or grossly negligent that future misconduct is almost inevitable.” Id. at 1528. While generally approving of liability for failure to train, some lower federal courts have stricken failure to train claims premised on a single instance of misconduct. Colburn v. Upper Darby Township, 838 F.2d 663, 673 (3rd Cir. 1988). The viability of and standards for supervisory liability founded on a failure to train theory now may be governed by the Supreme Court’s analysis of municipal liability for failure to train in City of Canton v. Harris, Chapter IV, infra.
    6. In McClelland v. Facteau, 610 F.2d 693 (10th Cir. 1979), Cecil McClelland brought a Section 1983 action against two police chiefs for various invasions of rights arising out of his arrest and incarceration prior to posting bond. The police chiefs did not personally participate in the asserted violations. McClelland claimed, however, that the deprivation of his rights occurred because of the chiefs’ failure to act despite knowledge of prior instances of misconduct by the subordinate officials who McClelland encountered. Reversing the district court’s grant of summary judgment in favor of the police chiefs, the court of appeals accepted McClelland’s theory of liability:

      We agree with those courts that have found a cause of action under section 1983 when the defendant was in a position of responsibility, knew or should have known of the misconduct, yet failed to act to prevent future harm. E.g., Sims v. Adams, 537 F.2d 829 (5th Cir. 1976); Wright v. McMann, 460 F.2d 126 (2d Cir.), cert. denied, 409 U.S. 885, 93 S. Ct. 116, 34 L. Ed.2d 141 (1972). The standard to be applied is the conduct of a reasonable person, under the circumstances, in the context of the authority of each police chief and what he knew or should have known. We find there is a genuine issue of fact whether defendants breached this duty.

      The rules and regulations cited of both police hierarchies indicate that the immediate and direct duty to supervise has been delegated, but the police chiefs have retained the ultimate responsibility for what goes on in the departments. The perimeters of their duty are uncertain and must be determined at trial.

      In order to establish a breach here, plaintiff must show that the defendant was adequately put on notice of prior misbehavior. Although both Schmerheim and Vigil denied any knowledge of wrongdoing by the three subordinates, McClelland countered by tendering newspaper articles and affidavits indicating that it was well known that rights were being violated in the Farmington jail and by state police officer Facteau, and showing Schmerheim was a party in two lawsuits involving the deaths of prisoners incarcerated in Farmington jail. Distant rumors that are too vague to prompt action by reasonable persons, or information that is reasonably believed to lack credibility do not provide sufficient notice…. We hold, however that McClelland’s showing was adequate to raise an issue of fact on the sufficiency of notice because the accusations contained in the material were recent and serious….

      If publicity or police misconduct was widespread and credible it may be inferred police chiefs who admitted reading the daily newspapers knew of it. They had ultimate responsibility for what went on in the departments, and it might be found that they should and could have taken steps that would have prevented the deprivation of McClelland’s rights. Defendants can, of course, refute these inferences at trial, but we cannot hold that they are entitled to judgment now as a matter of law.

      610 F.2d at 697-98.

      Can the failure to prevent recurrence of misconduct theory adopted in McClelland be reconciled with Rizzo v. Goode? How much notice of prior wrongs must the supervisor possess before he is obligated to intervene to prevent a recurrence of the misconduct? Compare Febus-Rodriguez v. Betancourt-Lebron, 14 F.3d 87 (1st Cir. 1994) (five previous unrelated complaints against an officer do not provide notice to supervisor of likelihood of constitutional violation) with Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553 (1st Cir. 1989) (superintendent liable for failing to act in face of knowledge of 13 citizen complaints and prior incidents of brutality). How many deprivations of constitutional rights were proven in Rizzo? How many violations would the Rizzo plaintiffs have had to prove to establish an actionable pattern?

    7. While the McClelland court appeared to endorse supervisory liability for negligent conduct, other courts have erected a more onerous standard of culpability:

      [S]upervisors who are merely negligent in failing to detect and prevent subordinates’ misconduct are not liable, because negligence is no longer culpable under section 1983…. Gross negligence is not enough either. The supervisors must know about the conduct and facilitate it, approve it, condone it, or turn a blind eye for fear of what they might see. They must in other words act either knowingly or with deliberate or reckless indifference.

      Jones v. City of Chicago, 856 F.2d 985, 992-93 (7th Cir. 1988). See also Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 582 (1st Cir. 1994) (“One way in which a supervisor’s action may [render him liable] is by formulating a policy, or engaging in a custom, that leads to the challenged occurrence…. Thus, even if a supervisor lacks actual knowledge of censurable conduct, he may be liable for the foreseeable consequences of such conduct if he would have known of it but for his deliberate indifference or willful blindness, and he had the power and authority to alleviate it.”).

    8. May the supervisor be held liable even if the official who physically inflicted the harm did not violate the Constitution? In Chew v. Gates, 27 F.3d 1432 (9th Cir. 1994), plaintiff sued Los Angeles Police Officer Daniel Bunch as well as Police Chief Darryl Gates to recover damages after a police dog, Volker, bit Chew, who had fled after being stopped for a traffic violation. In considering a defense of issue preclusion raised by Chief Gates, the court determined the jury could find Officer Bunch not liable for his handling of the dog yet still hold Chief Gates responsible:

      A judgment that Bunch is not liable for releasing Volker, given all the circumstances, would not preclude a judgment that by implementing a policy of training and using the police dogs to attack unarmed, non-resisting suspects, including Chew, the remaining defendants caused a violation of Chew’s constitutional rights. Supervisory liability may be imposed under Section 1983 notwithstanding the exoneration of the officer whose actions are the immediate or precipitating cause of the constitutional injury…

      The jury in this case could have concluded that it was reasonable for Bunch to release Volker—even knowing what he was likely to do to Chew—given the fact that the procedures adopted by the city left him with no other means of apprehending the suspect that involved less risk of bodily injury to himself or the suspect.

      27 F.3d at 1438.

    9. Absent proof of habit, evidence that a state official has violated the Constitution on prior occasions generally will not be admissible in a Section 1983 action. See Fed. R. Evid. 404. If plaintiff also joins the official’s supervisor as a defendant on a theory of failing to prevent recurrence of unconstitutional acts, however, may evidence of the subordinate’s previous constitutional violations be admitted to establish the supervisor had notice of these violations? In Fletcher v. O’Donnell, 867 F.2d 791 (3rd Cir. 1989), plaintiff alleged that police officer O’Donnell had used excessive force in the course of an arrest. He sued the City of Allentown as well as Officer O’Donnell, alleging that the officer acted pursuant to the City’s custom of tolerating use of excessive force. In order to establish the city’s custom, plaintiff attempted to introduce evidence that Officer O’Donnell had used excessive force on prior occasions. The trial court refused to admit the evidence, ruling that it not only was irrelevant to the claim against O’Donnell, but also would unduly prejudice him.  The court of appeals reversed:

      [P]rejudice was not a valid reason for preventing Fletcher from proving a custom of toleration of use of excessive force by using the only evidence which would suffice for that purpose. There were other means available to protect O’Donnell from such prejudice, including a limiting instruction. Indeed the court could have heard the evidence outside the presence of the jury in the first instance, in order to determine whether Fletcher could establish a prima facie case of prejudice. Finally, the court could even consider a severance.

      Id. at 794.

    10. The Rizzo Court’s analysis of the standards for equitable relief will be examined in the chapter on remedies.  See Part VI(B), infra.

ASHCROFT v. IQBAL, 556 U.S. 662 (2009)

Robert Mueller, Director of the federal Bureau of Investigation
Robert Mueller
Metropolitan Detention Center, Brooklyn New York
Metropolitan Detention Center. Federal Bureau of Prisons

Justice Kennedy delivered the opinion of the Court.

[1]Respondent Javaid Iqbal is a citizen of Pakistan and a Muslim. In the wake of the September 11, 2001, terrorist attacks he was arrested in the United States on criminal charges and detained by federal officials. Respondent claims he was deprived of various constitutional protections while in federal custody. To redress the alleged deprivations, respondent filed a complaint against numerous federal officials, including John Ashcroft, the former Attorney General of the United States, and Robert Mueller, the Director of the Federal Bureau of Investigation (FBI). Ashcroft and Mueller are the petitioners in the case now before us. As to these two petitioners, the complaint alleges that they adopted an unconstitutional policy that subjected respondent to harsh conditions of confinement on account of his race, religion, or national origin.

[2]In the District Court petitioners raised the defense of qualified immunity and moved to dismiss the suit, contending the complaint was not sufficient to state a claim against them. The District Court denied the motion to dismiss, concluding the complaint was sufficient to state a claim despite petitioners’ official status at the times in question. Petitioners brought an interlocutory appeal in the Court of Appeals for the Second Circuit. The court, without discussion, assumed it had jurisdiction over the order denying the motion to dismiss; and it affirmed the District Court’s decision.

[3]Respondent’s account of his prison ordeal could, if proved, demonstrate unconstitutional misconduct by some governmental actors. But the allegations and pleadings with respect to these actors are not before us here. This case instead turns on a narrower question: Did respondent, as the plaintiff in the District Court, plead factual matter that, if taken as true, states a claim that petitioners deprived him of his clearly established constitutional rights. We hold respondent’s pleadings are insufficient.

I

[4]Following the 2001 attacks, the FBI and other entities within the Department of Justice began an investigation of vast reach to identify the assailants and prevent them from attacking anew. The FBI dedicated more than 4,000 special agents and 3,000 support personnel to the endeavor. By September 18 “the FBI had received more than 96,000 tips or potential leads from the public.” Dept. of Justice, Office of Inspector General, The September 11 Detainees: A Review of the Treatment of Aliens Held on Immigration Charges in Connection with the Investigation of the September 11 Attacks 1, 11–12 (Apr.2003) (hereinafter OIG Report), http://www.usdoj.gov/oig/special/0306/full.pdf?bcsi_scan_ 61073EC0F74759AD=0&bcsi_scan_filename=full.pdf (as visited May 14, 2009, and available in Clerk of Court’s case file).

[5]In the ensuing months the FBI questioned more than 1,000 people with suspected links to the attacks in particular or to terrorism in general. Id., at 1. Of those individuals, some 762 were held on immigration charges; and a 184–member subset of that group was deemed to be “of ‘high interest’” to the investigation. Id., at 111. The high-interest detainees were held under restrictive conditions designed to prevent them from communicating with the general prison population or the outside world. Id., at 112-113.

[6]Respondent was one of the detainees. According to his complaint, in November 2001 agents of the FBI and Immigration and Naturalization Service arrested him on charges of fraud in relation to identification documents and conspiracy to defraud the United States. Iqbal v. Hasty, 490 F.3d 143, 147–148 (C.A.2 2007). Pending trial for those crimes, respondent was housed at the Metropolitan Detention Center (MDC) in Brooklyn, New York. Respondent was designated a person “of high interest” to the September 11 investigation and in January 2002 was placed in a section of the MDC known as the Administrative Maximum Special Housing Unit (ADMAX SHU). Id., at 148. As the facility’s name indicates, the ADMAX SHU incorporates the maximum security conditions allowable under Federal Bureau of Prison regulations. Ibid. ADMAX SHU detainees were kept in lockdown 23 hours a day, spending the remaining hour outside their cells in handcuffs and leg irons accompanied by a four-officer escort. Ibid.

[7]Respondent pleaded guilty to the criminal charges, served a term of imprisonment, and was removed to his native Pakistan. Id., at 149. He then filed a Bivens action in the United States District Court for the Eastern District of New York against 34 current and former federal officials and 19 “John Doe” federal corrections officers. See Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed.2d 619 (1971). The defendants range from the correctional officers who had day-to-day contact with respondent during the term of his confinement, to the wardens of the MDC facility, all the way to petitioners—officials who were at the highest level of the federal law enforcement hierarchy. First Amended Complaint in No. 04–CV–1809 (JG)(JA), ¶¶ 10–11, App. to Pet. for Cert. 157a (hereinafter Complaint).

[8]The 21-cause-of-action complaint does not challenge respondent’s arrest or his confinement in the MDC’s general prison population. Rather, it concentrates on his treatment while confined to the ADMAX SHU. The complaint sets forth various claims against defendants who are not before us. For instance, the complaint alleges that respondent’s jailors “kicked him in the stomach, punched him in the face, and dragged him across” his cell without justification, id., ¶ 113, App. to Pet. for Cert. 176a; subjected him to serial strip and body-cavity searches when he posed no safety risk to himself or others, id., ¶¶ 143–145, App. to Pet. for Cert. 182a; and refused to let him and other Muslims pray because there would be “[n]o prayers for terrorists,” id., ¶ 154, App. to Pet. for Cert. 184a.

[9]The allegations against petitioners are the only ones relevant here. The complaint contends that petitioners designated respondent a person of high interest on account of his race, religion, or national origin, in contravention of the First and Fifth Amendments to the Constitution. The complaint alleges that “the [FBI], under the direction of Defendant MUELLER, arrested and detained thousands of Arab Muslim men … as part of its investigation of the events of September 11.” Id., ¶ 47, at 164a. It further alleges that “[t]he policy of holding post–September–11th detainees in highly restrictive conditions of confinement until they were ‘cleared’ by the FBI was approved by Defendants ASHCROFT and MUELLER in discussions in the weeks after September 11, 2001.” Id., 69, at 168a. Lastly, the complaint posits that petitioners “each knew of, condoned, and willfully and maliciously agreed to subject” respondent to harsh conditions of confinement “as a matter of policy, solely on account of [his] religion, race, and/or national origin and for no legitimate penological interest.” Id., ¶ 96, at 172a–173a. The pleading names Ashcroft as the “principal architect” of the policy, id., 10, at 157a, and identifies Mueller as “instrumental in [its] adoption, promulgation, and implementation.” Id., ¶ 11, at 157a.

[10]Petitioners moved to dismiss the complaint for failure to state sufficient allegations to show their own involvement in clearly established unconstitutional conduct. The District Court denied their motion. Accepting all of the allegations in respondent’s complaint as true, the court held that “it cannot be said that there [is] no set of facts on which [respondent] would be entitled to relief as against” petitioners. Id. at 136a–137a (relying on Conley v. Gibson, 355 U.S. 41, 78 S. Ct. 99, 2 L. Ed.2d 80 (1957)). Invoking the collateral-order doctrine petitioners filed an interlocutory appeal in the United States Court of Appeals for the Second Circuit. While that appeal was pending, this Court decided Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed.2d 929 (2007), which discussed the standard for evaluating whether a complaint is sufficient to survive a motion to dismiss.

[11]The Court of Appeals considered Twombly’ s applicability to this case. Acknowledging that Twombly retired the Conley no-set-of-facts test relied upon by the District Court, the Court of Appeals’ opinion discussed at length how to apply this Court’s “standard for assessing the adequacy of pleadings.” 490 F.3d, at 155. It concluded that Twombly called for a “flexible ‘plausibility standard,’ which obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible.Id., at 157–158. The court found that petitioners’ appeal did not present one of “those contexts” requiring amplification. As a consequence, it held respondent’s pleading adequate to allege petitioners’ personal involvement in discriminatory decisions which, if true, violated clearly established constitutional law. Id., at 174.

[12]Judge Cabranes concurred. He agreed that the majority’s “discussion of the relevant pleading standards reflect[ed] the uneasy compromise … between a qualified immunity privilege rooted in the need to preserve the effectiveness of government as contemplated by our constitutional structure and the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure.” Id., at 178 (internal quotation marks and citations omitted). Judge Cabranes nonetheless expressed concern at the prospect of subjecting high-ranking Government officials—entitled to assert the defense of qualified immunity and charged with responding to “a national and international security emergency unprecedented in the history of the American Republic”—to the burdens of discovery on the basis of a complaint as nonspecific as respondent’s. Id., at 179. Reluctant to vindicate that concern as a member of the Court of Appeals, ibid., Judge Cabranes urged this Court to address the appropriate pleading standard “at the earliest opportunity.” Id., at 178. We granted certiorari, 554 U.S. ___, 128 S. Ct. 2931, 171 L. Ed.2d 863 (2008), and now reverse.

* * * * *

III

[13]In Twombly, supra, at 553-554, 127 S. Ct. 1955, the Court found it necessary first to discuss the antitrust principles implicated by the complaint. Here too we begin by taking note of the elements a plaintiff must plead to state a claim of unconstitutional discrimination against officials entitled to assert the defense of qualified immunity.

[14]In Bivens—proceeding on the theory that a right suggests a remedy—this Court “recognized for the first time an implied private action for damages against federal officers alleged to have violated a citizen’s constitutional rights.” Correctional Services Corp. v. Malesko, 534 U.S. 61, 66, 122 S. Ct. 515, 151 L. Ed.2d 456 (2001). Because implied causes of action are disfavored, the Court has been reluctant to extend Bivens liability “to any new context or new category of defendants.” 534 U.S., at 68, 122 S. Ct. 515. See also Wilkie, 551 U.S., at 549–550, 127 S. Ct. 2588. That reluctance might well have disposed of respondent’s First Amendment claim of religious discrimination. For while we have allowed a Bivens action to redress a violation of the equal protection component of the Due Process Clause of the Fifth Amendment, see Davis v. Passman, 442 U.S. 228, 99 S. Ct. 2264, 60 L. Ed.2d 846 (1979), we have not found an implied damages remedy under the Free Exercise Clause. Indeed, we have declined to extend Bivens to a claim sounding in the First Amendment. Bush v. Lucas, 462 U.S. 367, 103 S. Ct. 2404, 76 L. Ed.2d 648 (1983). Petitioners do not press this argument, however, so we assume, without deciding, that respondent’s First Amendment claim is actionable under Bivens.

[15]In the limited settings where Bivens does apply, the implied cause of action is the “federal analog to suits brought against state officials under Rev. Stat. § 1979, 42 U.S.C. § 1983.” Hartman, 547 U.S., at 254, n.2, 126 S. Ct. 1695. Cf. Wilson v. Layne, 526 U.S. 603, 609, 119 S. Ct. 1692, 143 L. Ed.2d 818 (1999). Based on the rules our precedents establish, respondent correctly concedes that Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior. Iqbal Brief 46 (“[I]t is undisputed that supervisory Bivens liability cannot be established solely on a theory of respondeat superior”). See Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 691, 98 S. Ct. 2018, 56 L. Ed.2d 611 (1978) (finding no vicarious liability for a municipal “person” under 42 U.S.C. § 1983); see also Dunlop v. Munroe, 7 Cranch 242, 269, 3 L.Ed. 329 (1812) (a federal official’s liability “will only result from his own neglect in not properly superintending the discharge” of his subordinates’ duties); Robertson v. Sichel, 127 U.S. 507, 515–516, 8 S. Ct. 1286, 3 L.Ed. 203 (1888) (“A public officer or agent is not responsible for the misfeasances or position wrongs, or for the nonfeasances, or negligences, or omissions of duty, of the subagents or servants or other persons properly employed by or under him, in the discharge of his official duties”). Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official’s own individual actions, has violated the Constitution.

[16]The factors necessary to establish a Bivens violation will vary with the constitutional provision at issue. Where the claim is invidious discrimination in contravention of the First and Fifth Amendments, our decisions make clear that the plaintiff must plead and prove that the defendant acted with discriminatory purpose. Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 540–541, 113 S. Ct. 2217, 124 L. Ed.2d 472 (1993) (First Amendment); Washington v. Davis, 426 U.S. 229, 240, 96 S. Ct. 2040, 48 L. Ed.2d 597 (1976) (Fifth Amendment). Under extant precedent purposeful discrimination requires more than “intent as volition or intent as awareness of consequences.” Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 279, 99 S. Ct. 2282, 60 L. Ed.2d 870 (1979). It instead involves a decisionmaker’s undertaking a course of action “‘because of,’ not merely ‘in spite of,’ [the action’s] adverse effects upon an identifiable group.” Ibid. It follows that, to state a claim based on a violation of a clearly established right, respondent must plead sufficient factual matter to show that petitioners adopted and implemented the detention policies at issue not for a neutral, investigative reason but for the purpose of discriminating on account of race, religion, or national origin.

[17]Respondent disagrees. He argues that, under a theory of “supervisory liability,” petitioners can be liable for “knowledge and acquiescence in their subordinates’ use of discriminatory criteria to make classification decisions among detainees.” Iqbal Brief 45-46. 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 misdeeds of 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.

IV

A

* * * * *

[18]To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Id., at 570, 127 S. Ct. 1955. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id., at 556, 127 S. Ct. 1955. The plausibility standard is not akin to a “probability requirement,” but it asks for more than a sheer possibility that a defendant has acted unlawfully. Ibid. Where a complaint pleads facts that are “merely consistent with” a defendant’s liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.’ ” …

[19]Two working principles underlie our decision in Twombly. First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Id., at 555, 127 S. Ct. 1955 (Although for the purposes of a motion to dismiss we must take all of the factual allegations in the complaint as true, we “are not bound to accept as true a legal conclusion couched as a factual allegation” (internal quotation marks omitted)). Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions. Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Id., at 556, 127 S. Ct. 1955. Determining whether a complaint states a plausible claim for relief will, as the Court of Appeals observed, be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. 490 F.3d, at 157–158. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not “show[n]”—“that the pleader is entitled to relief.” Fed. Rule Civ. Proc. 8(a)(2).

* * * * *

B

[20]Under Twombly ‘s construction of Rule 8, we conclude that respondent’s complaint has not “nudged [his] claims” of invidious discrimination “across the line from conceivable to plausible.” …

* * * * *

[21]We next consider the factual allegations in respondent’s complaint to determine if they plausibly suggest an entitlement to relief. The complaint alleges that “the [FBI], under the direction of Defendant MUELLER, arrested and detained thousands of Arab Muslim men … as part of its investigation of the events of September 11.” Complaint ¶ 47, App. to Pet. for Cert. 164a. It further claims that “[t]he policy of holding post–September–11th detainees in highly restrictive conditions of confinement until they were ‘cleared’ by the FBI was approved by Defendants ASHCROFT and MUELLER in discussions in the weeks after September 11, 2001.” Id., ¶ 69, at 168a. Taken as true, these allegations are consistent with petitioners’ purposefully designating detainees “of high interest” because of their race, religion, or national origin. But given more likely explanations, they do not plausibly establish this purpose.

[22]The September 11 attacks were perpetrated by 19 Arab Muslim hijackers who counted themselves members in good standing of al Qaeda, an Islamic fundamentalist group. Al Qaeda was headed by another Arab Muslim—Osama bin Laden—and composed in large part of his Arab Muslim disciples. It should come as no surprise that a legitimate policy directing law enforcement to arrest and detain individuals because of their suspected link to the attacks would produce a disparate, incidental impact on Arab Muslims, even though the purpose of the policy was to target neither Arabs nor Muslims. On the facts respondent alleges the arrests Mueller oversaw were likely lawful and justified by his nondiscriminatory intent to detain aliens who were illegally present in the United States and who had potential connections to those who committed terrorist acts. As between that “obvious alternative explanation” for the arrests, Twombly, supra, at 567, 127 S. Ct. 1955, and the purposeful, invidious discrimination respondent asks us to infer, discrimination is not a plausible conclusion.

[23]But even if the complaint’s well-pleaded facts give rise to a plausible inference that respondent’s arrest was the result of unconstitutional discrimination, that inference alone would not entitle respondent to relief. It is important to recall that respondent’s complaint challenges neither the constitutionality of his arrest nor his initial detention in the MDC. Respondent’s constitutional claims against petitioners rest solely on their ostensible “policy of holding post–September–11th detainees” in the ADMAX SHU once they were categorized as “of high interest.” Complaint ¶ 69, App. to Pet. for Cert. 168a. To prevail on that theory, the complaint must contain facts plausibly showing that petitioners purposefully adopted a policy of classifying post–September–11 detainees as “of high interest” because of their race, religion, or national origin.

[24]This the complaint fails to do. Though respondent alleges that various other defendants, who are not before us, may have labeled him a person of “of high interest” for impermissible reasons, his only factual allegation against petitioners accuses them of adopting a policy approving “restrictive conditions of confinement” for post–September–11 detainees until they were “‘cleared’ by the FBI.” Ibid. Accepting the truth of that allegation, the complaint does not show, or even intimate, that petitioners purposefully housed detainees in the ADMAX SHU due to their race, religion, or national origin. All it plausibly suggests is that the Nation’s top law enforcement officers, in the aftermath of a devastating terrorist attack, sought to keep suspected terrorists in the most secure conditions available until the suspects could be cleared of terrorist activity. Respondent does not argue, nor can he, that such a motive would violate petitioners’ constitutional obligations. He would need to allege more by way of factual content to “nudg[e]” his claim of purposeful discrimination “across the line from conceivable to plausible.” Twombly, 550 U.S., at 570, 127 S. Ct. 1955.

[25]To be sure, respondent can attempt to draw certain contrasts between the pleadings the Court considered in Twombly and the pleadings at issue here. InTwombly, the complaint alleged general wrongdoing that extended over a period of years, id., at 551, 127 S. Ct. 1955, whereas here the complaint alleges discrete wrongs—for instance, beatings—by lower level Government actors. The allegations here, if true, and if condoned by petitioners, could be the basis for some inference of wrongful intent on petitioners’ part. Despite these distinctions, respondent’s pleadings do not suffice to state a claim. Unlike in Twombly, where the doctrine of respondeat superior could bind the corporate defendant, here, as we have noted, petitioners cannot be held liable unless they themselves acted on account of a constitutionally protected characteristic. Yet respondent’s complaint does not contain any factual allegation sufficient to plausibly suggest petitioners’ discriminatory state of mind. His pleadings thus do not meet the standard necessary to comply with Rule 8.

[26]It is important to note, however, that we express no opinion concerning the sufficiency of respondent’s complaint against the defendants who are not before us. Respondent’s account of his prison ordeal alleges serious official misconduct that we need not address here. Our decision is limited to the determination that respondent’s complaint does not entitle him to relief from petitioners.

C

[27]Respondent offers three arguments that bear on our disposition of his case, but none is persuasive.

1

[28]Respondent first says that our decision in Twombly should be limited to pleadings made in the context of an antitrust dispute. Iqbal Brief 37-38. This argument is not supported by Twombly and is incompatible with the Federal Rules of Civil Procedure. Though Twombly determined the sufficiency of a complaint sounding in antitrust, the decision was based on our interpretation and application of Rule 8. 550 U.S., at 554, 127 S. Ct. 1955. That Rule in turn governs the pleading standard “in all civil actions and proceedings in the United States district courts.” Fed. Rule Civ. Proc. 1. Our decision in Twombly expounded the pleading standard for “all civil actions,” ibid., and it applies to antitrust and discrimination suits alike. See 550 U.S., at 555–556, and n.3.

2

[29]Respondent next implies that our construction of Rule 8 should be tempered where, as here, the Court of Appeals has “instructed the district court to cabin discovery in such a way as to preserve” petitioners’ defense of qualified immunity “as much as possible in anticipation of a summary judgment motion.” Iqbal Brief 27. We have held, however, that the question presented by a motion to dismiss a complaint for insufficient pleadings does not turn on the controls placed upon the discovery process. Twombly, supra, at 559, 127 S. Ct. 1955 (“It is no answer to say that a claim just shy of a plausible entitlement to relief can, if groundless, be weeded out early in the discovery process through careful case management given the common lament that the success of judicial supervision in checking discovery abuse has been on the modest side” (internal quotation marks and citation omitted)).

[30]Our rejection of the careful-case-management approach is especially important in suits where Government-official defendants are entitled to assert the defense of qualified immunity. The basic thrust of the qualified-immunity doctrine is to free officials from the concerns of litigation, including “avoidance of disruptive discovery.” Siegert v. Gilley, 500 U.S. 226, 236, 111 S. Ct. 1789, 114 L. Ed.2d 277 (1991) (KENNEDY, J., concurring in judgment). There are serious and legitimate reasons for this. If a Government official is to devote time to his or her duties, and to the formulation of sound and responsible policies, it is counterproductive to require the substantial diversion that is attendant to participating in litigation and making informed decisions as to how it should proceed. Litigation, though necessary to ensure that officials comply with the law, exacts heavy costs in terms of efficiency and expenditure of valuable time and resources that might otherwise be directed to the proper execution of the work of the Government. The costs of diversion are only magnified when Government officials are charged with responding to, as Judge Cabranes aptly put it, “a national and international security emergency unprecedented in the history of the American Republic.” 490 F.3d, at 179.

[31]It is no answer to these concerns to say that discovery for petitioners can be deferred while pretrial proceedings continue for other defendants. It is quite likely that, when discovery as to the other parties proceeds, it would prove necessary for petitioners and their counsel to participate in the process to ensure the case does not develop in a misleading or slanted way that causes prejudice to their position. Even if petitioners are not yet themselves subject to discovery orders, then, they would not be free from the burdens of discovery.

[32]We decline respondent’s invitation to relax the pleading requirements on the ground that the Court of Appeals promises petitioners minimally intrusive discovery. That promise provides especially cold comfort in this pleading context, where we are impelled to give real content to the concept of qualified immunity for high-level officials who must be neither deterred nor detracted from the vigorous performance of their duties. Because respondent’s complaint is deficient under Rule 8, he is not entitled to discovery, cabined or otherwise.

3

[33]Respondent finally maintains that the Federal Rules expressly allow him to allege petitioners’ discriminatory intent “generally,” which he equates with a conclusory allegation. Iqbal Brief 32 (citing Fed. Rule Civ. Proc. 9). It follows, respondent says, that his complaint is sufficiently well pleaded because it claims that petitioners discriminated against him “on account of [his] religion, race, and/or national origin and for no legitimate penological interest.” Complaint ¶ 96, App. to Pet. for Cert. 172a–173a. Were we required to accept this allegation as true, respondent’s complaint would survive petitioners’ motion to dismiss. But the Federal Rules do not require courts to credit a complaint’s conclusory statements without reference to its factual context.

[34]It is true that Rule 9(b) requires particularity when pleading “fraud or mistake,” while allowing “[m]alice, intent, knowledge, and other conditions of a person’s mind [to] be alleged generally.” But “generally” is a relative term. In the context of Rule 9, it is to be compared to the particularity requirement applicable to fraud or mistake. Rule 9 merely excuses a party from pleading discriminatory intent under an elevated pleading standard. It does not give him license to evade the less rigid—though still operative—strictures of Rule 8. See 5A C. WRIGHT & A. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1301, p.291 (3d ed. 2004) (“[A] rigid rule requiring the detailed pleading of a condition of mind would be undesirable because, absent overriding considerations pressing for a specificity requirement, as in the case of averments of fraud or mistake, the general ‘short and plain statement of the claim’ mandate in Rule 8(a) … should control the second sentence of Rule 9(b)”). And Rule 8 does not empower respondent to plead the bare elements of his cause of action, affix the label “ general allegation,” and expect his complaint to survive a motion to dismiss.

V

[35]We hold that respondent’s complaint fails to plead sufficient facts to state a claim for purposeful and unlawful discrimination against petitioners. The Court of Appeals should decide in the first instance whether to remand to the District Court so that respondent can seek leave to amend his deficient complaint.

The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice SOUTER, with whom Justice STEVENS, Justice GINSBURG, and Justice BREYER join, dissenting.

[36]This case is here on the uncontested assumption that Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed.2d 619 (1971), allows personal liability based on a federal officer’s violation of an individual’s rights under the First and Fifth Amendments, and it comes to us with the explicit concession of petitioners Ashcroft and Mueller that an officer may be subject to Bivens liability as a supervisor on grounds other than respondeat superior. The Court apparently rejects this concession and, althought it has no bearing on the majority’s resolution of this case, does away with supervisory liability under Bivens. The majority then misapplies the pleading standard under Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), to conclude that the complaint fails to state a claim. I respectfully dissent from both the rejection of supervisory liability as a cognizable claim in the face of petitioners’ concession, and from the holding that the complaint fails to satisfy Rule 8(a)(2) of the Federal Rules of Civil Procedure.

I

A

[37]Respondent Iqbal was arrested in November 2001 on charges of conspiracy to defraud the United States and fraud in relation to identification documents, and was placed in pretrial detention at the Metropolitan Detention Center in Brooklyn, New York. Iqbal v. Hasty, 490 F.3d 143, 147–148 (C.A.2 2007). He alleges that FBI officials carried out a discriminatory policy by designating him as a person “‘of high interest’” in the investigation of the September 11 attacks solely because of his race, religion, or national origin. Owing to this designation he was placed in the detention center’s Administrative Maximum Special Housing Unit for over six months while awaiting the fraud trial. Id., at 148. As I will mention more fully below, Iqbal contends that Ashcroft and Mueller were at the very least aware of the discriminatory detention policy and condoned it (and perhaps even took part in devising it), thereby violating his First and Fifth Amendment rights.[4]

[38]Iqbal claims that on the day he was transferred to the special unit, prison guards, without provocation, “picked him up and threw him against the wall, kicked him in the stomach, punched him in the face, and dragged him across the room.” First Amended Complaint in No. 04–CV–1809 (JG)(JA), ¶ 113, App. to Pet. for Cert. 176a (hereinafter Complaint). He says that after being attacked a second time he sought medical attention but was denied care for two weeks. Id., ¶¶ 187-188, at 189a. According to Iqbal’s complaint, prison staff in the special unit subjected him to unjustified strip and body cavity searches, id., ¶¶ 136-140, at 181a, verbally berated him as a “‘terrorist’” and “‘Muslim killer,’” id., ¶¶ 87, at 170a-171a, refused to give him adequate food, id., ¶ 91, at 171a-172a, and intentionally turned on air conditioning during the winter and heating during the summer, id., ¶ 84, at 170a. He claims that prison staff interfered with his attempts to pray and engage in religious study, id., ¶¶ 153-154, at 183a-184a, and with his access to counsel, id., ¶¶ 168, 171, at 186a-87a.

[39]The District Court denied Ashcroft and Mueller’s motion to dismiss Iqbal’s discrimination claim, and the Court of Appeals affirmed. Ashcroft and Mueller then asked this Court to grant certiorari on two questions:

“1. Whether a conclusory allegation that a cabinet-level officer or other high-ranking official knew of, condoned, or agreed to subject a plaintiff to allegedly unconstitutional acts purportedly committed by subordinate officials is sufficient to state individual-capacity claims against those officials under Bivens.

“2. Whether a cabinet-level officer or other high-ranking official may be held personally liable for the allegedly unconstitutional acts of subordinate officials on the ground that, as high-level supervisors, they had constructive notice of the discrimination allegedly carried out by such subordinate officials.” Pet. for Cert. I.

The Court granted certiorari on both questions. The first is about pleading; the second goes to the liability standard.

[40]In the first question, Ashcroft and Mueller did not ask whether “a cabinet-level officer or other high-ranking official” who “knew of, condoned, or agreed to subject a plaintiff to allegedly unconstitutional acts committed by subordinate officials” was subject to liability under Bivens. In fact, they conceded in their petition for certiorari that they would be liable if they had “actual knowledge” of discrimination by their subordinates and exhibited “‘deliberate indifference’” to that discrimination. Pet. for Cert. 29 (quoting Farmer v. Brennan, 511 U.S. 825, 837, 114 S. Ct. 1970, 128 L. Ed.2d 811 (1994)). Instead, they asked the Court to address whether Iqbal’s allegations against them (which they call conclusory) were sufficient to satisfy Rule 8(a)(2), and in particular whether the Court of Appeals misapplied our decision in Twombly construing that rule. Pet. for Cert. 11–24.

[41]In the second question, Ashcroft and Mueller asked this Court to say whether they could be held personally liable for the actions of their subordinates based on the theory that they had constructive notice of their subordinates’ unconstitutional conduct. Id., at 25-33. This was an odd question to pose, since Iqbal has never claimed that Ashcroft and Mueller are liable on a constructive notice theory. Be that as it may, the second question challenged only one possible ground for imposing supervisory liability under Bivens. In sum, both questions assumed that a defendant could raise a Bivens claim on theories of supervisory liability other than constructive notice, and neither question asked the parties or the Court to address the elements of such liability.

[42]The briefing at the merits stage was no different. Ashcroft and Mueller argued that the factual allegations in Iqbal’s complaint were insufficient to overcome their claim of qualified immunity; they also contended that they could not be held liable on a theory of constructive notice. Again they conceded, however, that they would be subject to supervisory liability if they “had actual knowledge of the assertedly discriminatory nature of the classification of suspects as being ‘of high interest’ and they were deliberately indifferent to that discrimination.” Brief for Petitioners 50; see also Reply Brief for Petitioners 21–22. Iqbal argued that the allegations in his complaint were sufficient under Rule 8(a)(2) and Twombly, and conceded that as a matter of law he could not recover under a theory of respondeat superior. See Brief for Respondent Iqbal 46. Thus, the parties agreed as to a proper standard of supervisory liability, and the disputed question was whether Iqbal’s complaint satisfied Rule 8(a)(2).

[43]Without acknowledging the parties’ agreement as to the standard of supervisory liability, the Court asserts that it must sua sponte decide the scope of supervisory liability here. Ante, at 1947–1949. I agree that, absent Ashcroft and Mueller’s concession, that determination would have to be made; without knowing the elements of a supervisory liability claim, there would be no way to determine whether a plaintiff had made factual allegations amounting to grounds for relief on that claim. See Twombly, 550 U.S., at 557–558, 127 S. Ct. 1955. But deciding the scope of supervisory Bivens liability in this case is uncalled for. There are several reasons, starting with the position Ashcroft and Mueller have taken and following from it.

[44]First, Ashcroft and Mueller have, as noted, made the critical concession that a supervisor’s knowledge of a subordinate’s unconstitutional conduct and deliberate indifference to that conduct are grounds for Bivens liability. Iqbal seeks to recover on a theory that Ashcroft and Mueller at least knowingly acquiesced (and maybe more than acquiesced) in the discriminatory acts of their subordinates; if he can show this, he will satisfy Ashcroft and Mueller’s own test for supervisory liability. See Farmer, supra, at 842, 114 S. Ct. 1970 (explaining that a prison official acts with “deliberate indifference” if “the official acted or failed to act despite his knowledge of a substantial risk of serious harm”). We do not normally override a party’s concession, see, e.g., United States v. International Business Machines Corp., 517 U.S. 843, 855, 116 S. Ct. 1793, 135 L. Ed.2d 124 (1996) (holding that “[i]t would be inappropriate for us to [e]xamine in this case, without the benefit of the parties’ briefing,” an issue the Government had conceded), and doing so is especially inappropriate when, as here, the issue is unnecessary to decide the case, see infra, at 1958-1959. I would therefore accept Ashcroft and Mueller’s concession for purposes of this case and proceed to consider whether the complaint alleges at least knowledge and deliberate indifference.

[45]Second, because of the concession, we have received no briefing or argument on the proper scope of supervisory liability, much less the full-dress argument we normally require. Mapp v. Ohio, 367 U.S. 643, 676–677, 81 S. Ct. 1684, 6 L. Ed.2d 1081 (1961) (Harlan, J., dissenting). We consequently are in no position to decide the precise contours of supervisory liability here, this issue being a complicated one that has divided the Courts of Appeals. See infra, at 1957–1959. This Court recently remarked on the danger of “bad decisionmaking” when the briefing on a question is “woefully inadequate,” Pearson v. Callahan, 555 U.S. 223, 229, 129 S. Ct. 808, 819, 172 L. Ed.2d 565 (2009), yet today the majority answers a question with no briefing at all. The attendant risk of error is palpable.

[46]Finally, the Court’s approach is most unfair to Iqbal. He was entitled to rely on Ashcroft and Mueller’s concession, both in their petition for certiorari and in their merits briefs, that they could be held liable on a theory of knowledge and deliberate indifference. By overriding that concession, the Court denies Iqbal a fair chance to be heard on the question.

B

[47]The majority, however, does ignore the concession. According to the majority, because Iqbal concededly cannot recover on a theory of respondeat superior, it follows that he cannot recover under any theory of supervisory liability. Ante, at 1948-1949. The majority says that in a Bivens action, “where masters do not answer for the torts of their servants,” “the term ‘supervisory liability’ is a misnomer,” and that “[a]bsent vicarious liability, each Government official, his or her title notwithstanding, is only liable for his or her own misconduct.” Ibid. Lest there be any mistake, in these words the majority is not narrowing the scope of supervisory liability; it is eliminating Bivens supervisory liability entirely. The nature of a supervisory liability theory is that the supervisor may be liable, under certain conditions, for the wrongdoing of his subordinates, and it is this very principle that the majority rejects. Ante, at 1952 (“[P]etitioners cannot be held liable unless they themselves acted on account of a constitutionally protected characteristic”).

[48]The dangers of the majority’s readiness to proceed without briefing and argument are apparent in its cursory analysis, which rests on the assumption that only two outcomes are possible here: respondeat superior liability, in which “an employer is subject to liability for torts committed by employees while acting within the scope of their employment,” Restatement (Third) of Agency § 2.04 (2005), or no supervisory liability at all. The dichotomy is false. Even if an employer is not liable for the actions of his employee solely because the employee was acting within the scope of employment, there still might be conditions to render a supervisor liable for the conduct of his subordinate. See, e.g., Whitfield v. Melendez–Rivera, 431 F.3d 1, 14 (C.A.1 2005) (distinguishing between respondeat superior liability and supervisory liability); Bennett v. Eastpointe, 410 F.3d 810, 818 (C.A.6 2005) (same); Richardson v. Goord, 347 F.3d 431, 435 (C.A.2 2003) (same); Hall v. Lombardi, 996 F.2d 954, 961 (C.A.8 1993) (same).

[49]In fact, there is quite a spectrum of possible tests for supervisory liability: it could be imposed where a supervisor has actual knowledge of a subordinate’s constitutional violation and acquiesces, see, e.g., Baker v. Monroe Twp., 50 F.3d 1186, 1194 (C.A.3 1995); Woodward v. Worland, 977 F.2d 1392, 1400 (C.A.10 1992); or where supervisors “ ‘know about the conduct and facilitate it, approve it, condone it, or turn a blind eye for fear of what they might see,’” International Action Center v. United States, 365 F.3d 20, 28 (C.A.D.C. 2004) (Roberts, J.) (quoting Jones v. Chicago, 856 F.2d 985, 992 (C.A.7 1988) (Posner, J.)); or where the supervisor has no actual knowledge of the violation but was reckless in his supervision of the subordinate, see, e.g., Hall, supra, at 961; or where the supervisor was grossly negligent, see, e.g., Lipsett v. University of Puerto Rico, 864 F.2d 881, 902 (C.A.1 1988). I am unsure what the general test for supervisory liability should be, and in the absence of briefing and argument I am in no position to choose or devise one.

[50]Neither is the majority, but what is most remarkable about its foray into supervisory liability is that its conclusion has no bearing on its resolution of the case. The majority says that all of the allegations in the complaint that Ashcroft and Mueller authorized, condoned, or even were aware of their subordinates’ discriminatory conduct are “conclusory” and therefore are “not entitled to be assumed true.” Ante, at 1951. As I explain below, this conclusion is unsound, but on the majority’s understanding of Rule 8(a)(2) pleading standards, even if the majority accepted Ashcroft and Mueller’s concession and asked whether the complaint sufficiently alleges knowledge and deliberate indifference, it presumably would still conclude that the complaint fails to plead sufficient facts and must be dismissed.[5]

II

[51]Given petitioners’ concession, the complaint satisfies Rule 8(a)(2). Ashcroft and Mueller admit they are liable for their subordinates’ conduct if they “had actual knowledge of the assertedly discriminatory nature of the classification of suspects as being ‘of high interest’ and they were deliberately indifferent to that discrimination.” Brief for Petitioners 50. Iqbal alleges that after the September 11 attacks the Federal Bureau of Investigation (FBI) “arrested and detained thousands of Arab Muslim men,” Complaint ¶ 47, App. to Pet. for Cert. 164a, that many of these men were designated by high-ranking FBI officials as being “‘of high interest,’” id., ¶¶ 48, 50, at 164a, and that in many cases, including Iqbal’s, this designation was made “because of the race, religion, and national origin of the detainees, and not because of any evidence of the detainees’ involvement in supporting terrorist activity,” id., ¶ 49. The complaint further alleges that Ashcroft was the “principal architect of the policies and practices challenged,” id., ¶ 10, at 157a, and that Mueller “was instrumental in the adoption, promulgation, and implementation of the policies and practices challenged,” id., ¶ 11. According to the complaint, Ashcroft and Mueller “knew of, condoned, and willfully and maliciously agreed to subject [Iqbal] to these conditions of confinement as a matter of policy, solely on account of [his] religion, race, and/or national origin and for no legitimate penological interest.” Id., ¶ 96, at 172a-173a. The complaint thus alleges, at a bare minimum, that Ashcroft and Mueller knew of and condoned the discriminatory policy their subordinates carried out. Actually, the complaint goes further in alleging that Ashcroft and Muller affirmatively acted to create the discriminatory detention policy. If these factual allegations are true, Ashcroft and Mueller were, at the very least, aware of the discriminatory policy being implemented and deliberately indifferent to it.

[52]Ashcroft and Mueller argue that these allegations fail to satisfy the “plausibility standard” of Twombly. They contend that Iqbal’s claims are implausible because such high-ranking officials “tend not to be personally involved in the specific actions of lower-level officers down the bureaucratic chain of command.” Brief for Petitioners 28. But this response bespeaks a fundamental misunderstanding of the enquiry that Twombly demands. Twombly does not require a court at the motion-to-dismiss stage to consider whether the factual allegations are probably true. We made it clear, on the contrary, that a court must take the allegations as true, no matter how skeptical the court may be. See Twombly, 550 U.S., at 555, 127 S. Ct. 1955 (a court must proceed “on the assumption that all the allegations in the complaint are true (even if doubtful in fact)”); id., at 556, 127 S. Ct. 1955 (“[A] well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of the facts alleged is improbable”); see also Neitzke v. Williams, 490 U.S. 319, 327, 109 S. Ct. 1827, 104 L. Ed.2d 338 (1989) (Rule 12(b)(6) does not countenance … dismissals based on a judge’s disbelief of a complaint’s factual allegations”). The sole exception to this rule lies with allegations that are sufficiently fantastic to defy reality as we know it: claims about little green men, or the plaintiff’s recent trip to Pluto, or experiences in time travel. That is not what we have here.

[53]Under Twombly, the relevant question is whether, assuming the factual allegations are true, the plaintiff has stated a ground for relief that is plausible. That is, in Twombly‘s words, a plaintiff must “allege facts” that, taken as true, are “suggestive of illegal conduct.” 550 U.S., at 564, n.8, 127 S. Ct. 1955. In Twombly, we were faced with allegations of a conspiracy to violate § 1 of the Sherman Act through parallel conduct. The difficulty was that the conduct alleged was “consistent with conspiracy, but just as much in line with a wide swath of rational and competitive business strategy unilaterally prompted by common perceptions of the market.” Id., at 554, 127 S. Ct. 1955. We held that in that sort of circumstance, “[a]n allegation of parallel conduct is … much like a naked assertion of conspiracy in a § 1 complaint: it gets the complaint close to stating a claim, but without some further factual enhancement it stops short of the line between possibility and plausibility of ‘entitlement to relief.’” Id., at 557, 127 S. Ct. 1955 (brackets omitted). Here, by contrast, the allegations in the complaint are neither confined to naked legal conclusions nor consistent with legal conduct. The complaint alleges that FBI officials discriminated against Iqbal solely on account of his race, religion, and national origin, and it alleges the knowledge and deliberate indifference that, by Ashcroft and Mueller’s own admission, are sufficient to make them liable for the illegal action. Iqbal’s complaint therefore contains “enough facts to state a claim to relief that is plausible on its face.” Id., at 570, 127 S. Ct. 1955.

[54]I do not understand the majority to disagree with this understanding of “plausibility” under Twombly. Rather, the majority discards the allegations discussed above with regard to Ashcroft and Mueller as conclusory, and is left considering only two statements in the complaint: that “the [FBI], under the direction of Defendant MUELLER, arrested and detained thousands of Arab Muslim men … as part of its investigation of the events of September 11,” Complaint ¶ 47, App. to Pet. for Cert. 164a, and that “[t]he policy of holding post–September–11th detainees in highly restrictive conditions of confinement until they were ‘cleared’ by the FBI was approved by Defendants ASHCROFT and MUELLER in discussions in the weeks after September 11, 2001,” id., ¶ 69, at 168a. See ante, at 1951. I think the majority is right in saying that these allegations suggest only that Ashcroft and Mueller “sought to keep suspected terrorists in the most secure conditions available until the suspects could be cleared of terrorist activity,” ante, at 1952, and that this produced “a disparate, incidental impact on Arab Muslims,” ante, at 1951–1952. And I agree that the two allegations selected by the majority, standing alone, do not state a plausible entitlement to relief for unconstitutional discrimination.

[55]But these allegations do not stand alone as the only significant, nonconclusory statements in the complaint, for the complaint contains many allegations linking Ashcroft and Mueller to the discriminatory practices of their subordinates. See Complaint ¶ 10, App. to Pet. for Cert. 157a (Ashcroft was the “principal architect” of the discriminatory policy); id., 11 (Mueller was “instrumental” in adopting and executing the discriminatory policy); id., 96, at 172a–173a (Ashcroft and Mueller “knew of, condoned, and willfully and maliciously agreed to subject” Iqbal to harsh conditions “as a matter of policy, solely on account of [his] religion, race, and/or national origin and for no legitimate penological interest”).

[56]The majority says that these are “bare assertions” that, “much like the pleading of conspiracy in Twombly, amount to nothing more than a ‘formulaic recitation of the elements’ of a constitutional discrimination claim” and therefore are “not entitled to be assumed true.” Ante, at 1951 (quoting Twombly, supra, at 555, 127 S. Ct. 1955). The fallacy of the majority’s position, however, lies in looking at the relevant assertions in isolation. The complaint contains specific allegations that, in the aftermath of the September 11 attacks, the Chief of the FBI’s International Terrorism Operations Section and the Assistant Special Agent in Charge for the FBI’s New York Field Office implemented a policy that discriminated against Arab Muslim men, including Iqbal, solely on account of their race, religion, or national origin. See Complaint ¶¶ 47–53, App. to Pet. for Cert. 164a–165a. Viewed in light of these subsidiary allegations, the allegations singled out by the majority as “conclusory” are no such thing. Iqbal’s claim is not that Ashcroft and Mueller “knew of, condoned, and willfully and maliciously agreed to subject” him to a discriminatory practice that is left undefined; his allegation is that “they knew of, condoned, and willfully and maliciously agreed to subject” him to a particular, discrete, discriminatory policy detailed in the complaint. Iqbal does not say merely that Ashcroft was the architect of some amorphous discrimination, or that Mueller was instrumental in an ill-defined constitutional violation; he alleges that they helped to create the discriminatory policy he has described. Taking the complaint as a whole, it gives Ashcroft and Mueller “‘fair notice of what the … claim is and the grounds upon which it rests.’” Twombly, 550 U.S., at 555, 127 S. Ct. 1955 (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99, 2 L. Ed.2d 80 (1957) (omission in original)).

[57]That aside, the majority’s holding that the statements it selects are conclusory cannot be squared with its treatment of certain other allegations in the complaint as nonconclusory. For example, the majority takes as true the statement that “[t]he policy of holding post–September–11th detainees in highly restrictive conditions of confinement until they were ‘cleared’ by the FBI was approved by Defendants ASHCROFT and MUELLER in discussions in the weeks after September 11, 2001.” Complaint ¶ 69, App. to Pet. for Cert. 168a; see ante, at 1951. This statement makes two points: (1) after September 11, the FBI held certain detainees in highly restrictive conditions, and (2) Ashcroft and Mueller discussed and approved these conditions. If, as the majority says, these allegations are not conclusory, then I cannot see why the majority deems it merely conclusory when Iqbal alleges that (1) after September 11, the FBI designated Arab Muslim detainees as being of “‘high interest’” “because of the race, religion, and national origin of the detainees, and not because of any evidence of the detainees’ involvement in supporting terrorist activity,” Complaint ¶¶ 48-50, App. to Pet. for Cert. 164a, and (2) Ashcroft and Mueller “knew of, condoned, and willfully and maliciously agreed” to that discrimination, id., ¶ 96, at 172a. By my lights, there is no principled basis for the majority’s disregard of the allegations linking Ashcroft and Mueller to their subordinates’ discrimination.

I respectfully dissent.

Justice BREYER, dissenting.

[58]I agree with Justice SOUTER and join his dissent. I write separately to point out that, like the Court, I believe it important to prevent unwarranted litigation from interfering with “the proper execution of the work of the Government.” Ante, at 1953. But I cannot find in that need adequate justification for the Court’s interpretation of Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed.2d 929 (2007), and Federal Rules of Civil Procedure 8. The law, after all, provides trial courts with other legal weapons designed to prevent unwarranted interference. As the Second Circuit explained, where a Government defendant asserts a qualified immunity defense, a trial court, responsible for managing a case and “mindful of the need to vindicate the purpose of the qualified immunity defense,” can structure discovery in ways that diminish the risk of imposing unwarranted burdens upon public officials. See Iqbal v. Hasty, 490 F.3d 143, 158 (2007). A district court, for example, can begin discovery with lower level government defendants before determining whether a case can be made to allow discovery related to higher level government officials. See ibid. Neither the briefs nor the Court’s opinion provides convincing grounds for finding these alternative case-management tools inadequate, either in general or in the case before us. For this reason, as well as for the independently sufficient reasons set forth in Justice SOUTER’s opinion, I would affirm the Second Circuit.

download arrowAshcroft v. Iqbal – Audio and Transcript of Oral Argument

Notes on Ashcroft v. Iqbal

  1. Most constitutional rights are not absolute. Rather, to assess whether the government deprived plaintiff of constitutional liberties, the court must weigh the government’s justification for the invasion of plaintiff’s autonomy. For example, the Fourth Amendment allows an official to invade the citizen’s reasonable expectation of privacy where the government has probable cause and a warrant to conduct a search (or an exception to the probable cause or warrant requirement). The Iqbal Court’s holding that plaintiff must allege sufficient facts to state a “plausible” claim for relief, then, poses a significant obstacle where the plaintiff does not possess the facts on which the government relies to sustain its actions. These barriers are heightened by the Court’s apparent holding that the plaintiff not only must plead sufficient facts to make it plausible that defendant violated the Constitution, but also must allege facts that establish that is plausible the defendant is not sheltered by qualified immunity. Therefore, we will defer consideration of the impact of Iqbal’s pleading standard on plaintiff’s ability to plead a viable Section 1983 claim until examination of the qualified immunity defense. See Part III(B), infra.
  2. Was the Supreme Court’s holding that a supervisory official may be held liable only where the supervisor himself violated the Constitution logically necessary to avoid imposing vicarious liability?
    1. Is the Court’s requirement that plaintiff prove that the supervisor violated the Constitution compatible with the language of Section 1983? The legislative history of the statute? The policy underpinnings of Section 1983? Compare Kit Kinports, Iqbal and Supervisory Immunity, 114 PENN ST. L. REV. 1291, 1297-1300 (2010) with Sheldon Nahmod, Constitutional Torts, Over-Deterrence and Supervisory Liability After Iqbal, 14 LEWIS & CLARK L. REV. 279 (2010).
    2. Attorney General Ashcroft and FBI Director Mueller never argued that plaintiff must prove that they individually violated the Constitution in order hold them responsible for constitutional violations physically inflicted by subordinate officials. In their Petition for a Writ of Certiorari, Ashcroft and Mueller presented the following question: “Whether a cabinet-level officer or high ranking official may be held personally liable for the allegedly unconstitutional acts of subordinate officials on the ground that, as high-level supervisors, they had constructive notice of the discrimination allegedly carried out by such subordinate officials.” Petition for Certiorari at 1, Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) (No. 07-1015). Ashcroft and Mueller conceded high-level officials could be sued not only for their direct involvement in deprivations of constitutional rights, but also for their “deliberate indifference in the face of information that rights of others are being violated.” Initial Brief of Appellants at 14, 44, Ashcroft, 129 S. Ct. 1937 (2009) (No. 07-1015). Defendants argued that constructive notice of wrongdoing was insufficient to meet that test; rather, “[t]he proper standard … would preclude liability unless petitioners had actual knowledge of the assertedly discriminatory nature of the classification of suspects of being of ‘high interest’ and they were deliberately indifferent to that discrimination.” Id. at 50 (emphasis supplied). Why did the Court adopt a standard of supervisory liability that was neither raised in the lower courts nor argued by the parties?
  3. Courts have varied in how stringently they apply the discriminatory purpose standard of culpability in Section 1983 actions against supervisors for violation of the Equal Protection Clause.
    1. In Powell v. City of New York, 2016 U.S. Dist. LEXIS 94186 (S.D.N.Y. July 14, 2016), an inmate sued prison officials for not calling him to prayer services despite the fact that he registered as Muslim with the prison. The court determined that there was no underlying constitutional violation, and therefore no supervisory liability. However, “out of an abundance of caution” the court went on in dicta to discard old standards of supervisory liability. Id. Prior to Iqbal, the Court of Appeals for the Second Circuit evaluated five factors to establish supervisory liability (the Colon factors): “(1) Defendant participated directly in the alleged violation (2) Defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong (3) Defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) Defendant was grossly negligent in supervising subordinates who committed the wrongful acts, (5) Defendant exhibited deliberate indifference to the rights of plaintiffs by failing to act on information indicating that unconstitutional acts were occurring.” Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995). The District Court decided after Iqbal, “at a minimum, therefore, the second, fourth, and fifth Colon factors—which do not require any showing of discriminatory ‘purpose’ by the supervisor—can no longer be relied on to hold a senior official personally liable for conduct by her juniors in violation of the Equal Protection clause of the 14th Amendment.” Powell v. City of New York, 2016 U.S. Dist. LEXIS 94186 at *28, *29. See also Butler v. Suffolk County, 289 F.R.D. 80, 94 n. (E.D.N.Y. 2013) (“[T]he weight of authority among the district courts in the Eastern District of New York suggests that only two of the Colon factors—direct participation and the creation of a policy or custom—survive Iqbal.”). But see Raspardo v. Carlone, 770 F.3d 97, 117 (2d Cir. 2014) (“We have not yet determined the contours of the supervisory liability test, including the gross negligence prong, after Iqbal.  We need not decide this question here.”).
    2. In Locke v. Haessig, 788 F.3d 662 (7th Cir. 2015), plaintiff alleged he had been sexually harassed by his parole officer and complained about the harassment to the parole officer’s supervisor. Plaintiff then sued the supervisor for violating the Equal Protection Clause, alleging the supervisor refused to act on the harassment complaint because the plaintiff was male. The court of appeals rejected defendant’s contention that only action—and not inaction—could establish the specific intent to discriminate required by Iqbal. Rather, the court ruled, “Short perhaps only of a confession of intentional discrimination, selective inaction can be strong evidence of discriminatory intent.” Locke, 788 F. 3d at 671.
    3. In Burke v. New Mexico, 696 Fed. Appx. 325 (10th Cir. 2017), Heather Burke, an IT Generalist working at the New Mexico General Services Department, alleged she had been harassed based upon her gender and that the Department compensated men more than women employed in the same position. Burke sued Department Secretary Edwynn Burckle, alleging that Burckle had failed to properly train and discipline his staff. The court determined that plaintiff’s Complaint was insufficient because she had not alleged any specific deficiency in Burckle’s training that actually caused unequal treatment. However, the court acknowledged, “deliberate indifference to known sexual harassment can, under certain circumstances, serve as a basis for supervisory liability under an Equal Protection theory.” Burke, 696 Fed. Appx. at 330.
  4. Does Iqbal require that plaintiff plead and prove in every Section 1983 case that the supervisor acted with the purpose of violating the Constitution?
    1. In OSU Student Alliance v. Ray, 699 F.3d 1053 (9th Cir. 2012), the Oregon State University (OSU) Student Alliance group asserted a § 1983 supervisory liability claim against the President and Vice-President of the University. Plaintiff alleged the defendants knowingly acquiesced in the Director of Facilities’ removal of bins that housed the Alliance’s student-run conservative newspaper, in violation of their First Amendment right to freedom of speech. In deciding which culpability standard to apply, the court stated:

      The question is whether allegations of supervisory knowledge and acquiescence suffice to state claims for speech- based first amendment and equal protection violations. Iqbal does not answer this question. [Iqbal’s] holding was based on the elements of invidious discrimination in particular, not on some blanket requirement that applies equally to all constitutional tort claims…. [There] are only three instances where the Supreme Court has required specific intent for Constitutional torts: (1) Due Process Claims for injury in a high speed chase … (2) Eighth Amendment claims for injuries suffered during a response to a prison disturbance … (3) Invidious Discrimination claims under the Equal Protection Clause and the First Amendment Free Exercise Clause…. While a specific intent requirement inheres in claims for invidious discrimination, the same requirement does not inhere in claims for free speech.

      Id. at 1071-75.  See also Sash v. United States, 674 F. Supp 2d 531, 544 (S.D.N.Y 2009) (pre-Iqbal personal involvement standards may apply “[w]here the constitutional claim does not require a showing of discriminatory intent, but instead relies on the unreasonable conduct or deliberate indifference standards of the Fourth and Eighth Amendments.”).

  5. As noted earlier, the lower federal courts had recognized several theories under which the supervisor’s failure to act would satisfy the “affirmative link” requirement set forth in Rizzo v. Goode. See Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) (supervisor may be held liable if he knew of and acquiesced in constitutional deprivation; failed to act to remedy a known violation of Constitution; or failed to adequately train or supervise subordinates). In the wake of Iqbal, the lower federal courts have divided over whether and when a supervisor’s failure to act may give rise to liability.
    1. Several courts have concluded that the Iqbal Court’s statement that a government official “is only liable for his or her misconduct” entirely eliminated Section 1983 claims based upon the inaction of supervisors. See Joseph v. Fischer, 2009 U.S. Dist. LEXIS 96952 at *43 (S.D.N.Y. Oct. 8, 2009) (Suit against prison supervisor who took no action in response to inmate’s letters complaining about series of unconstitutional actions of subordinates was “precisely the type of claim Iqbal eliminated”); Bellamy v. Mount Vernon Hosp., 2009 U.S. Dist. LEXIS 54141 at *28 (S.D.N.Y. June 26, 2009) (Granting summary judgment to defendant on claim that supervisor was deliberately indifferent to plaintiff’s medical needs in violation of Eighth Amendment; after Iqbal, liability could no longer be imposed on ground that supervisor “knew of and acquiesced to a constitutional violation committed by a subordinate”); Newton v. City of New York, 640 F. Supp. 2d 426, 448 (S.D.N.Y. 2009) (Supervisor cannot be held liable for failing to adequately train detectives because Iqbal requires that supervisor had to take a “direct action” towards the plaintiff in order to be liable); Jacobs v. Strickland, 2009 U.S. Dist. LEXIS 55133 at *10 (S.D. Ohio June 30, 2009) (Supervisor’s actual knowledge of the constitutional violation not sufficient to give rise to liability unless supervisor “actually participate[d] in or encourage[d]” constitutional violation).
    2. In Peatross v. City of Memphis, 818 F.3d 233, 242-42 (6th Cir. 2016), the court of appeals set forth the elements necessary to hold a supervisor liable under Section 1983:

      [T]here are clear situations in which supervisory liability does not attach. It is well-settled that “[g]overnment officials may not be held liable for the unconstitutional conduct of their subordinates under the theory of respondeat superior.” In other words, a supervisor cannot be held liable simply because he or she was charged with overseeing a subordinate who violated the constitutional rights of another. Consequently, a mere failure to act will not suffice to establish supervisory liability. We have long held that supervisory liability requires some “active unconstitutional behavior” on the part of the supervisor.

      However, “active” behavior does not mean “active” in the sense that the supervisor must have physically put his hands on the injured party or even physically been present at the time of the constitutional violation

      “[A] supervisory official’s failure to supervise, control or train the offending individual is not actionable unless the supervisor either encouraged the specific incident of misconduct or in some other way directly participated in it.” We have interpreted this standard to mean that “at a minimum,” the plaintiff must show that the defendant “at least implicitly authorized, approved, or knowingly acquiesced in the unconstitutional conduct of the offending officers.” (citations omitted).

      See Garza v. Lansing Sch. Dist., 2020 U.S. App. LEXIS 27523, No. 19-1645 (6th Cir. August 28, 2020) at *20 (“A defendant may ‘knowingly acquiesce[ ] in the unconstitutional conduct of his subordinates through the execution of his job functions,’ including by failing to take precautions against likely violations.”).

    3. Other courts have ruled that Iqbal did not universally repudiate liability for a supervisor’s failure to act. Rather, whether inaction could both satisfy Iqbal and suffice to show an affirmative link between the supervisory defendant and the violation depends upon the culpability plaintiff is required to prove to establish an infringement of the particular constitutional right in issue.
      1. The lower courts have agreed that because plaintiff must prove purposeful discrimination to establish a violation of the Equal Protection Clause, officials are not liable merely for failing to act in the face of discriminatory acts by persons who they supervise. T.E. v. Grindle, 599 F.3d 583 (7th Cir. 2010); Cole v. FBI, 791 F. Supp.2d 1229 (D. Mont. 2010).
      2. In Starr v. Baca, 652 F.3d 1202 (9th Cir. 2011), the complaint alleged a deputy sheriff of the Los Angeles County jail opened the door of plaintiff Dion Starr’s jail cell, allowing a group of inmates who had been threatening to harm Starr to enter the cell. The inmates stabbed Starr twenty-three times. After the inmates left Starr’s cell, one deputy repeated yelled “shut up n­­­­—-” while kicking Starr. Other deputies stood by and watched. Starr sued not only the deputies involved in the attack, but also sued Sheriff Baca. The complaint alleged that based upon a series of previous incidents, the sheriff knew or should have known about the dangers in the county jail, but failed to act to prevent them. The district court dismissed the claim against Sheriff Baca. The court reasoned that the complaint did not allege that the sheriff participated in the incident giving rise to Starr’s injuries; was involved in any review or investigation of that incident; or implemented a specific policy that caused the violation. The court of appeals reversed the dismissal of the claim against the sheriff. The court held that “unlike a claim of unconstitutional discrimination,” plaintiff’s claim that conditions of confinement violated the Eighth Amendment “may be based on a theory of deliberate indifference.” Id. at 1206. Accordingly, “[a] showing that the supervisor … failed to act … is sufficient to demonstrate the involvement—and the liability—of that supervisor.” Id. at 1206-07.
      3. In Sash v. United States, 674 F. Supp.2d 531 (S.D.N.Y. 2009), plaintiff alleged that the supervisor was liable for failing to properly train and supervise the police officers who used excessive force while arresting the plaintiff. The court noted that the Iqbal Court “specifically held that ‘[t]he factors necessary to establish’” supervisory liability “‘will vary with the constitutional provision at issue.’” Id. at 544. The court then reasoned that the inaction of the supervisor may give rise to liability ‘[w]here the constitutional claim does not require a showing of discriminatory intent, but instead relies on the unreasonable conduct or deliberate indifference standard of the Fourth and Eighth Amendments. Id. See also, D’Olimpio v. Crisafi, 718 F. Supp.2d 340 (S.D.N.Y. 2010) (Because proof of Fourth Amendment violation does not require showing of discriminatory purpose, supervisor may be held liable for failing to take action in response to notice of wrongdoing by subordinate officers in making arrests).
  6. If plaintiff satisfies both the Iqbal mandate that the supervisor violated the Constitution and the Rizzo requirement of an “affirmative link” between the supervisor’s conduct and the constitutional deprivation, must the plaintiff further prove that the supervisor’s unconstitutional action was a cause in fact of the invasion of plaintiff’s rights?
    1. Courts generally have insisted plaintiff prove that the supervisor’s conduct was a cause-in-fact of the violation. Chamberlain v. City of White Plains, 960 F.3d 100, 114 (2d Cir. 2020) (“To succeed on a supervisory liability claim, a plaintiff must “show an affirmative causal link between the supervisor’s inaction and [the plaintiff’s] injury.”); Keith v. Dekalb County, 749 F.3d 1034, 1052 (11th Cir. 2014) (to hold supervisor liable for failure to properly train subordinates, plaintiff must prove that “the failure has actually caused the injury of which plaintiff complains.”). However, they have adopted a range of standards of causation.
    2. The most stringent articulation of the causation element requires the plaintiff to show that the “supervisor’s conduct led inexorably to the constitutional violation.” Maldonado v. Fontanes, 568 F.3d 263, 275 (1st Cir. 2009). See also Walker v. Upshaw (In re Estate of Walker), 515 Fed. Appx. 334, 340 (5th Cir 2013) (“when plaintiffs allege that a supervisory official failed to train or supervise they must prove that … the inadequacy of the training [was] obviously likely to result a constitutional violation.”).
    3. Some courts have concluded that to hold a supervisor liable, plaintiff has to show that the supervisor’s conduct was “closely related” to the constitutional violation that occurred. Burke v. New Mexico, 696 Fed. Appx. 325 (10th Cir. 2017) (affirming judgment for supervisory official where plaintiff “alleged no specific deficiency in [the defendant’s training] that was closely related to her ultimate injury and ‘actually caused’ unequal treatment.’”); Parrish v. Ball, 594 F.3d 993, 1000 (9th Cir. 2010). See also Doe v. Durham Pub. Sch. Bd. of Educ., 2019 U.S. Dist. LEXIS 12249 at *45 (No. 1:17cv773 (M.D. N.C. January 25, 2019) (“After showing deliberate indifference, plaintiffs must show a ‘sufficiently close causal link’ between the training deficiency and the alleged violation—that the violation was ‘almost bound to happen”)
    4. Other courts have ruled that the requisite causal connection exists where the supervisor’s actions “could be reasonably expected to give rise to just the sort of injuries that occurred.” Peatross v. City of Memphis, 818 F. 3d 233, 245 (6th Cir. 2016); Vazquez v. Cty. of Kern, 949 F.3d 1153, 1166 (9th Cir. 2020) (“‘The requisite causal connection may be established when an official sets in motion a series of acts by others which the actor knows or reasonably should know would cause others to inflict constitutional harms’”); Dodds v. Richardson, 614 F.3d 1185, 1211 (10th Cir. 2010) (supervisor liable if he “set in motion a series of events that the [supervisor] knew or reasonably should have known would cause others to deprive the plaintiff of her constitutional rights.”); Starr v. Baca, 652 F.3d 1202, 1207-08 (9th Cir. 2011).
    5. Yet other courts simply have required the plaintiff to show “some” causal connection between the supervisor’s actions and the constitutional violation. Sanchez v. Pereira v. Castillo, 590 F.3d 31, 49 (1st Cir. 2009); Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009).
  7. If plaintiff must prove the supervisor’s conduct was a cause in fact of the constitutional deprivation, did Iqbal supplant the “affirmative link” requirement set forth in Rizzo v. Goode? See Santiago v. Warminster Township, 629 F.3d 121, 130 (3d Cir. 2010) (“Particularly after Iqbal, the connection between the supervisor’s directions and the constitutional deprivation must be sufficient to ‘demonstrate a ‘plausible nexus’ or ‘affirmative link’ between the [directions] and the specific deprivation of constitutional rights at issue.’”) (emphasis supplied).; Clark v. Sheffield, 807 Fed. Appx. 910, 917 (11th Cir. 2020) (”Supervisory liability occurs only when the supervisor personally participates in the alleged violation or when there is a causal connection between the supervisory official’s actions and the alleged deprivation.”’) (emphasis supplied).

MARTINEZ v. CALIFORNIA, 444 U.S. 277 (1980)

Tecolote Canyon, San Diego, where Thomas murdered Mary Ellen Martinez
Tecolote Canyon, San Diego

Mr. Justice Stevens delivered the opinion of the Court.

[1]The two federal questions that appellants ask us to decide are (1) whether the Fourteenth Amendment invalidates a California statute granting absolute immunity to public employees who make parole-release determinations, and (2) whether such officials are absolutely immune from liability in an action brought under the federal Civil Rights Act of 1871, 42 U.S.C. § 1983. We agree with the California Court of Appeal that the state statute is valid when applied to claims arising under state law, and we conclude that appellants have not alleged a claim for relief under federal law.

[2]The case arises out of the murder of a 15-year-old girl by a parolee. Her survivors brought this action in a California court claiming that the state officials responsible for the parole-release decision are liable in damages for the harm caused by the parolee.

[3]The complaint alleged that the parolee, one Thomas, was convicted of attempted rape in December 1969. He was first committed to a state mental hospital as a “Mentally Disordered Sex Offender not amenable to treatment” and thereafter sentenced to a term of imprisonment of 1 to 20 years, with a recommendation that he not be paroled. Nevertheless, five years later, appellees decided to parole Thomas to the care of his mother. They were fully informed about his history, his propensities, and the likelihood that he would commit another violent crime. Moreover, in making their release determination they failed to observe certain “requisite formalities.” Five months after his release Thomas tortured and killed appellants’ decedent. We assume, as the complaint alleges, that appellees knew, or should have known, that the release of Thomas created a clear and present danger that such an incident would occur. Their action is characterized not only as negligent, but also as reckless, willful, wanton and malicious. Appellants prayed for actual and punitive damages of $2 million.

[4]The trial judge sustained a demurrer to the complaint and his order was upheld on appeal. 85 Cal. App.3d 430, 149 Cal. Rptr. 519 (1978). After the California Supreme Court denied appellants’ petition for a hearing, we noted probable jurisdiction. 441 U.S. 960.

* * * * *

II

[5]We turn then to appellants’ § 1983 claim that appellees, by their action in releasing Thomas, subjected appellants’ decedent to a deprivation of her life without due process of law.[6] It is clear that the California immunity statute does not control this claim even though the federal cause of action is being asserted in the state courts.[7] We also conclude that it is not necessary for us to decide any question concerning the immunity of state parole officials as a matter of federal law because, as we recently held in Baker v. McCollan, 443 U.S. 137, “[the] first inquiry in any § 1983 suit … is whether the plaintiff has been deprived of a right ‘secured by the Constitution and laws'” of the United States. The answer to that inquiry disposes of this case.

[6]Appellants contend that the decedent’s right to life is protected by the Fourteenth Amendment to the Constitution. But the Fourteenth Amendment protected her only from deprivation by the “State … of life … without due process of law.” Although the decision to release Thomas from prison was action by the State, the action of Thomas five months later cannot be fairly characterized as state action. Regardless of whether, as a matter of state tort law, the parole board could be said either to have had a “duty” to avoid harm to his victim or to have proximately caused her death, see Grimm v. Arizona Bd. of Pardons and Paroles, 115 Ariz. 260, 564 P.2d 1227 (1977); Palsgraf v. Long Island R. Co., 248 N.Y. 339, 162 N.E. 99 (1928), we hold that, taking these particular allegations as true, appellees did not “deprive” appellants’ decedent of life within the meaning of the Fourteenth Amendment.

[7]Her life was taken by the parolee five months after his release.[8]He was in no sense an agent of the parole board. Cf. Scheuer v. Rhodes, 416 U.S. 232. Further, the parole board was not aware that appellants’ decedent, as distinguished from the public at large, faced any special danger. We need not and do not decide that a parole officer could never be deemed to “deprive” someone of life by action taken in connection with the release of a prisoner on parole. But we do hold that at least under the particular circumstances of this parole decision, appellants’ decedent’s death is too remote a consequence of the parole officers’ action to hold them responsible under the federal civil rights law. Although a § 1983 claim has been described as “a species of tort liability,” Imbler v. Pachtman, 424 U.S. 409, 417, it is perfectly clear that not every injury in which a state official has played some part is actionable under that statute.

The judgment is affirmed. So ordered.

download arrowMartinez v. California – Audio and Transcript of Oral Argument

Notes on Martinez v. California: Causation and Duty

  1. Did the Court decide Martinez on the issue of causation? Was the parole board’s decision to release Thomas a cause in fact of the murder?  Would the outcome have been different if the murder had occurred five hours after Thomas was released from custody? Would the parole officials be liable if they knew the Martinez’s daughter was Thomas’ intended victim?
  2. In Taggart v. State of Washington, 822 P.2d 243 (Wash. 1992), Victoria Taggart brought state tort claims against the State of Washington and its agents for negligently supervising parolee Louis Brock, who assaulted Taggart seven months after his release. Taggart and Brock had not met before the assault. The Washington Supreme Court, reversing the trial court’s grant of defendant’s motion for summary judgment, rejected the State’s argument that the parole officials’ actions were not a legal cause of assault.The State argues that Brock’s assault on Taggart occurred “without any warning to responsible correctional officials.” … The State contends that since the state correctional system does not have the resources to monitor parolees constantly in order to prevent them from committing unpredictable crimes, neither the State nor its agents should be deemed the legal cause of Taggart’s injuries.

    We disagree.  Brock had a long history of violent attacks against women and a consistently unfavorable prognosis for recovery from his psychiatric problems.  In light of such facts, the assertion that Brock’s assault upon yet another woman occurred without warning is not that … her actions to protect against Brock’s dangerous propensities were reasonable under the circumstances, so that she did not breach any duty.  We are unwilling to declare as a matter of law that no actions of the State or its agents were the legal cause of Taggart’s injuries.

    Taggart, 822 P.2d at 258-59.

  3. The Martinez Court noted that the parole board did not violate the Fourteenth Amendment “[r]egardless of whether, as a matter of state tort law, the parole board could be said to either have had a ‘duty’ to avoid harm to his victim or to have proximately caused her death.” Martinez at 285. Under what circumstances would an official’s actions be a proximate cause of the victim’s injury under state tort law yet not be a cause of the injury for purposes of an action under Section 1983?
    1. “Just as basis of liability concepts of tort law do not determine §1983 basis of liability requirements, proximate cause standards from tort law should not be dispositive of the § 1983 extent of liability question. This is not to say, of course, that proximate cause standards from tort law are not useful.  It turns out, in fact, that most circuits use a reasonable foreseeability standard adapted from tort law.  The point, though, is that tort law purposes and interests are often different from § 1983 purposes and interests, and thus tort law concepts should not be blindly applied.” See Sheldon Nahmod, Civil Rights and Civil Liberties Litigation (4th ed. 2000) § 3.104
    2. In Barnes v. Anderson, 202 F.3d 150 (2d Cir. 1999), Michelle Barnes alleged that courtroom security officers caused her to miscarry by using excessive force in the course of an unconstitutional arrest. Because no expert witness had testified that defendants’ actions had inflicted sufficient trauma to cause Mrs. Barnes to miscarry, the district court instructed the jury that it was not to consider the miscarriage on the issue of damages.The court of appeals affirmed:

      Although proximate causation in the § 1983 context is a question of federal law, in determining the meaning of the concept we look to those state tort analogs, because the “‘Supreme Court has made it crystal clear that principles of causation borrowed from tort law are relevant to civil rights actions brought under § 1983.’” [citations omitted]

      In this instance, the district court concluded that proof of proximate cause of a miscarriage required expert medical evidence specifically attributing that injury to the acts of which the plaintiff complained. We find this to be entirely consistent with analogous tort law doctrine.

      Barnes, 202 F.3d at 158-59.  See also Jackson v. Sauls, 206 F.3d 1156, 1168 (11th Cir. 2000) (“Although § 1983 addresses only constitutional torts, § 1983 defendants are, as in common law tort suits, responsible for the natural and foreseeable consequences of their actions….  For damages to be proximately caused by a constitutional tort, a plaintiff must show that, except for that constitutional tort, such injuries and damages would not have occurred and further that such injuries were the reasonable foreseeable consequences of the tortious acts or omissions in Issue”).

    3. The lower federal courts have looked to state law in determining whether a supervisory official was personally involved in a constitutional violation under the “affirmative link” requirement of Rizzo v. Goode. See Meade v. Grubbs, 841 F.2d 1512, 1528 (10th Cir. 1988) (“Unless a supervisor has established or utilized an unconstitutional policy or custom, a plaintiff must show that the supervisory defendant breached a duty imposed by state or local law which caused the violation”); Slakan v. Porter, 737 F.2d 368, 373 (4th Cir. 1984), (“The outer limits of liability in any given case are determined ultimately by pinpointing the persons in the decisionmaking chain whose deliberate indifference permitted the constitutional abuses to continue unchecked.  The final determination ‘generally is one of fact, not law’ … but state statutes fixing the administrator’s legal duties provide a useful guide in determining who had the responsibility and capability to end the offensive practices.”). The propriety of using state law to assign responsibility for constitutional invasions also arises in the Supreme Court’s attempt to define municipal liability.  See Chapter IV, infra.
  4. Francois Daniel Lesage, an African immigrant of Caucasian descent, brought a Section 1983 action for race discrimination following rejection of his application for admission to the Ph.D. program in counseling psychology at the University of Texas. It was undisputed that the University considered race of the applicant in its review process.  Finding that the undisputed facts established that Lesage would have been rejected even if the admissions process had been entirely color blind, the District Court entered summary judgment for the University.  The Court of Appeals for the Fifth Circuit reversed, finding the determination of whether Lesage would have been admitted irrelevant to whether the University had violated his constitutional rights.
    The United States Supreme Court reversed the Court of Appeals:

    [E]ven if the government has considered an impermissible criterion in making a decision adverse to the plaintiff, it can nonetheless defeat liability by demonstrating that it would have made the same decision absent the forbidden consideration [citations omitted]. Our previous decisions on this point have typically involved retaliation for protected First Amendment activity more than racial discrimination, but that distinction is immaterial. The underlying principle is the same … Simply put, where a plaintiff challenges a discrete governmental decision as being based on an impermissible criterion and it is undisputed that the government would have made the same decision regardless, there is no cognizable injury warranting relief under § 1983.

    Texas v. Lesage, 528 U.S. 18, 20-21 (1999).

  5. In County of Los Angeles v. Mendez, 137 S. Ct. 1539 (2017) Los Angeles County Sheriff’s Department Deputies were executing an arrest warrant for Ronnie O’Dell. The deputies entered a one-room shack where Angel Mendez and Jennifer Garcia were living.  The deputies did not have a search warrant and did not knock and announce their presence.  The deputies opened the door to the shack and pulled back the blanket on the futon where Mendez and Garcia were napping.  Mendez thought it was the owner of the home in whose backyard they were living who had entered.  Mendez picked up the BB gun he used to kill rats so that he could stand up and place the gun on the floor.  The deputies, believing the gun was a small caliber rifle, fired 15 rounds, shooting both Garcia and Mendez multiple times.  As a result of the shooting, Mendez’s leg had to be amputated below the knee.

    Mendez and Garcia brought a Section 1983 claim alleging three separate constitutional violations:  First, that the deputies violated the Fourth Amendment by entering the shack without a warrant; second, that the deputies violated the Fourth Amendment by failing to knock and announce their presence; and third, that the deputies engaged in an unreasonable seizure by using excessive force.

    Following a bench trial, the District Court found in favor of plaintiffs on the warrantless entry and knock and announce claims.  However, the court awarded only nominal damage on these counts, reasoning that Mendez’s picking up the BB gun was a superseding cause as to damages that flowed from the shooting.  As to the excessive force claim, the court first found that the deputies’ use of force was reasonable in light of their belief that Mendez posed a threat to their lives by holding what they believed to be a rifle.  The court then applied the Ninth Circuit’s “provocation rule,” under which an otherwise reasonable use of force is unreasonable as a matter of law where the officer intentionally or recklessly provoked the violent response and that provocation is an independent violation of the constitution.  The court found the deputies liable under the provocation rule and awarded Mendez and Garcia approximately four million dollars in damages.

    While not disagreeing with the district court that the shooting was reasonable, the court of appeals affirmed the judgment for plaintiffs on the excessive force claim because the deputies had intentionally and recklessly caused the shooting by entering the shack without a warrant.  As an alternative ground for affirmance, the court of appeals reasoned that as a matter of proximate cause, it was reasonably foreseeable that the officers would encounter an armed homeowner by entering the shack unannounced.

    The United States Supreme Court reversed, reasoning that the provocation rule impermissibly imposes liability for constitutionally reasonable force by linking the use of force to an earlier-in-time, different violation of the Constitution:

    [T]he [provocation] rule includes a vague causal standard. It applies when a prior constitutional violation ‘created a situation which led to’ the use of force.  The rule does not incorporate the familiar proximate cause standard. Indeed, it is not clear what causal standard is being applied.

    Mendez, 137 S. Ct. at 1548.

    The Court further held that the court of appeals erred in its alternative ruling that the warrantless entry was a proximate cause of the shooting:

    Proper analysis of this proximate cause question required consideration of the “foreseeability or scope of the risk created by the predicate conduct,” and required the court to conclude that that there was “some direct relation between the injury asserted and the injurious conduct alleged.” …

    [T]he Court of Appeals did not identify the foreseeable risks associated with the relevant constitutional violation (the warrantless entry); nor did it explain how, on these facts, respondent’s injuries were proximately caused by the warrantless entry.  In other words, the Court of Appeals’ proximate cause analysis, like the provocation rule, conflated distinct Fourth Amendment claims and required only a murky causal link between the warrantless entry and the injuries attributed to it.  On remand, the court should revisit the question whether proximate cause permits respondents to recover damages for their shooting injuries based on the deputies’ failure to secure a warrant at the outset.

Mendez, 137 S. Ct. at 1548-49.

  • 6. In Garza v. Lansing School Dist., 2020 U.S. App. LEXIS 27523, No. 19-1564 (6th Cir. August 28, 2020) at *26-27, the court of appeals summarized the causation element in Section 1983 actions:

    Thus, we must consider whether Defendants’ conduct is a cause in fact and a proximate cause of C.G.’s injury. “Cause in fact is typically assessed using the ‘but for’ test, which requires us to imagine whether the harm would have occurred if the defendant had behaved other than [she] did.”  “[C]ourts have framed the  § 1983 proximate-cause question as a matter of foreseeability, asking whether it was reasonably foreseeable that the complained of harm would befall the § 1983 plaintiff as a result of the defendant’s conduct.  Foreseeability overlaps with the concept of “directness,” which proximate cause also requires, since “[i]n most cases the more directly related an outcome is to an underlying action, the more likely that the outcome will have been foreseeable, and vice versa.

  • 7. One court has differentiated the causal connection required to prevail among Section 1983 actions based upon the type of relief requested:

    In analyzing this relationship between deliberate indifference and the constitutional deprivation, we believe it is important to distinguish the causal connection required when a plaintiff seeks injunctive or declaratory relief as opposed to damages.  When a prisoner seeks injunctive or declaratory relief against a myriad of prison personnel responsible for operating a prison, we focus on whether the combined acts or omissions of the state officials responsible for operating the state’s penal system created living conditions that violate the eight amendment.  See Williams, 689 F.2d at 1383. The approach undeniably focuses on the duties and responsibilities of each of the individual defendants whose acts or omissions are alleged to have caused the constitutional deprivation. Id. at 1381; see Rizzo, 423 U.S. at 370-71, 375-77, 96 S. Ct. at 603-04, 606-07.  However, the causal link between the deliberate indifference and the eighth amendment deprivation is broader and more generalized than when that same prisoner seeks damages for the harmful effects of such conditions. See Williams, 689 F.2d at 1383-84 (contrasting the “broad and generalized” approach to causation in a suit seeking injunctive relief with the “individualized” inquiry applicable to suits seeking damages from individual prison officials).

    When plaintiffs, such as inmates, seek to hold an individual defendant personally liable for damages, the causation inquiry between the deliberate indifference and the eighth amendment deprivation must be more refined. We must focus on whether the individual defendant was in a position to take steps to avert the stabbing incident, but failed to do so intentionally or with deliberate indifference. In order to resolve this causation issue, we must take a very individualized approach which accounts for the duties, discretion, and means of each defendant. See Williams, 689 F.2d at 1384.  Especially when, as in this case, a prisoner seeks to hold a prison employee individually liable because another prisoner attacked him, the prisoner must establish individual fault.

    Leer v. Murphy, 844 F.2d 628, 633-34 (9th Cir. 1988).

  • 8. Did the Martinez family sue the parole board because of the board’s action or inaction?
      1. Does the Constitution impose any requirement that the government act affirmatively, as opposed to prohibiting governmental conduct? See Monroe v. Pape, supra at 180. (“It is abundantly clear that one reason the legislation [Section 1983] was passed was to afford a federal right in federal courts because, by reason of prejudice, passion, neglect, intolerance or otherwise, state laws might not be enforced….”) and Currie, Positive and Negative Constitutional Rights, 53 U. CHI. L. REV. 864 (1986).  If the Constitution does impose a duty on the government to affirmatively act, are state and local officials liable under Section 1983 whenever they fail to prevent a crime?  Do police officers have an obligation to arrest a suspect as soon as they have probable cause?  Must parole officers refuse to grant parole whenever there is a foreseeable risk that the prisoner will commit a crime if released from custody?
      2. If the Constitution does not impose any duty of affirmative governmental action, may a police officer refuse to intervene while a fellow officer beats an arrested person in his presence? See Byrd v. Brishke, 466 F.2d 6 (7th Cir. 1972). May prison authorities decline to protect inmates from assaults by other inmates?  Compare Davidson v. Cannon, 474 U.S. 344 (1986) with Withers v. Levine, 615 F.2d 158 (4th Cir. 1980).  Are prison officials constitutionally obliged to provide medical care to prisoners?  See Estelle v. Gamble, 429 U.S. 97 (1976). May an FBI informant choose not to prevent a police officer from executing a murder contract? See Beard v. O’Neal, 728 F.2d 894 (7th Cir.1984).

     

    DESHANEY v. WINNEBAGO COUNTY DEPARTMENT OF SOCIAL SERVICES, 489 U.S. 189 (1989).

     

    Book cover
    Book cover: Poor Joshua: The Deshaney Case and Child Abuse in America. Indigo
    DeShaney V. Winnebago County Social Services
    Joshua Deshaney. Lindsey Gardella.  Deshaney v Winnebago County Social Services

    Chief Justice Rehnquist delivered the opinion of the Court.

    [1]Petitioner is a boy who was beaten and permanently injured by his father, with whom he lived. Respondents are social workers and other local officials who received complaints that petitioner was being abused by his father and had reason to believe that this was the case, but nonetheless did not act to remove petitioner from his father’s custody. Petitioner sued respondents claiming that their failure to act deprived him of his liberty in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution. We hold that it did not.

    I

    [2]The facts of this case are undeniably tragic. Petitioner Joshua DeShaney was born in 1979. In 1980, a Wyoming court granted his parents a divorce and awarded custody of Joshua to his father, Randy DeShaney. The father shortly thereafter moved to Neenah, a city located in Winnebago County, Wisconsin, taking the infant Joshua with him. There he entered into a second marriage, which also ended in divorce.

    [3]The Winnebago County authorities first learned that Joshua DeShaney might be a victim of child abuse in January 1982, when his father’s second wife complained to the police, at the time of their divorce, that he had previously “hit the boy causing marks and [was] a prime case for child abuse.” App. 152-153. The Winnebago County Department of Social Services (DSS) interviewed the father, but he denied the accusations, and DSS did not pursue them further. In January 1983, Joshua was admitted to a local hospital with multiple bruises and abrasions. The examining physician suspected child abuse and notified DSS, which immediately obtained an order from a Wisconsin juvenile court placing Joshua in the temporary custody of the hospital. Three days later, the county convened an ad hoc “Child Protection Team”—consisting of a pediatrician, a psychologist, a police detective, the county’s lawyer, several DSS caseworkers, and various hospital personnel—to consider Joshua’s situation. At this meeting, the Team decided that there was insufficient evidence of child abuse to retain Joshua in the custody of the court. The Team did, however, decide to recommend several measures to protect Joshua, including enrolling him in a preschool program, providing his father with certain counselling services, and encouraging his father’s girlfriend to move out of the home. Randy DeShaney entered into a voluntary agreement with DSS in which he promised to cooperate with them in accomplishing these goals.

    [4]Based on the recommendation of the Child Protection Team, the juvenile court dismissed the child protection case and returned Joshua to the custody of his father. A month later, emergency room personnel called the DSS caseworker handling Joshua’s case to report that he had once again been treated for suspicious injuries. The caseworker concluded that there was no basis for action. For the next six months, the caseworker made monthly visits to the DeShaney home, during which she observed a number of suspicious injuries on Joshua’s head; she also noticed that he had not been enrolled in school, and that the girlfriend had not moved out. The caseworker dutifully recorded these incidents in her files, along with her continuing suspicions that someone in the DeShaney household was physically abusing Joshua, but she did nothing more. In November 1983, the emergency room notified DSS that Joshua had been treated once again for injuries that they believed to be caused by child abuse. On the caseworker’s next two visits to the DeShaney home, she was told that Joshua was too ill to see her. Still DSS took no action.

    [5]In March 1984, Randy DeShaney beat 4-year-old Joshua so severely that he fell into a life-threatening coma. Emergency brain surgery revealed a series of hemorrhages caused by traumatic injuries to the head inflicted over a long period of time. Joshua did not die, but he suffered brain damage so severe that he is expected to spend the rest of his life confined to an institution for the profoundly retarded. Randy DeShaney was subsequently tried and convicted of child abuse.

    [6]Joshua and his mother brought this action under 42 U.S.C. § 1983 in the United States District Court for the Eastern District of Wisconsin against respondents Winnebago County, DSS, and various individual employees of DSS. The complaint alleged that respondents had deprived Joshua of his liberty without due process of law, in violation of his rights under the Fourteenth Amendment, by failing to intervene to protect him against a risk of violence at his father’s hands of which they knew or should have known. The District Court granted summary judgment for respondents.

    [7]The Court of Appeals for the Seventh Circuit affirmed, 812 F.2d 298 (1987), holding that petitioners had not made out an actionable § 1983 claim for two alternative reasons. First, the court held that the Due Process Clause of the Fourteenth Amendment does not require a state or local governmental entity to protect its citizens from “private violence, or other mishaps not attributable to the conduct of its employees.” Id., at 301. In so holding, the court specifically rejected the position … that once the State learns that a particular child is in danger of abuse from third parties and actually undertakes to protect him from that danger, a “special relationship” arises between it and the child which imposes an affirmative constitutional duty to provide adequate protection. 812 F.2d, at 303-304. Second, the court held, in reliance on our decision in Martinez v. California, 444 U.S. 277, 285 (1980), that the causal connection between respondents’ conduct and Joshua’s injuries was too attenuated to establish a deprivation of constitutional rights actionable under § 1983. 812 F.2d, at 301-303. The court therefore found it unnecessary to reach the question whether respondents’ conduct evinced the “state of mind” necessary to make out a due process claim after Daniels v. Williams, 474 U.S. 327 (1986), and Davidson v. Cannon, 474 U.S. 344 (1986). 812 F.2d, at 301.

    [8]Because of the inconsistent approaches taken by the lower courts in determining when, if ever, the failure of a state or local governmental entity or its agents to provide an individual with adequate protective services constitutes a violation of the individual’s due process rights, see Archie v. Racine, 847 F.2d 1211, 1220-1223, and n.10 (CA7 1988) (en banc) (collecting cases), cert. pending, No. 88-576, and the importance of the issue to the administration of state and local governments, we granted certiorari. 485 U.S. 958 (1988). We now affirm.

    II

    [9]The Due Process Clause of the Fourteenth Amendment provides that “[n]o State shall … deprive any person of life, liberty, or property, without due process of law.” Petitioners contend that the State deprived Joshua of his liberty interest in “free[dom] from … unjustified intrusions on personal security,” see Ingraham v. Wright, 430 U.S. 651, 673 (1977), by failing to provide him with adequate protection against his father’s violence. The claim is one invoking the substantive rather than the procedural component of the Due Process Clause; petitioners do not claim that the State denied Joshua protection without according him appropriate procedural safeguards, see Morrissey v. Brewer, 408 U.S. 471, 481 (1972), but that it was categorically obligated to protect him in these circumstances, see Youngberg v. Romeo, 457 U.S. 307, 309 (1982).[9]

    [10]But nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors. The Clause is phrased as a limitation on the State’s power to act, not as a guarantee of certain minimal levels of safety and security. It forbids the State itself to deprive individuals of life, liberty, or property without “due process of law,” but its language cannot fairly be extended to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means. Nor does history support such an expansive reading of the constitutional text. Like its counterpart in the Fifth Amendment, the Due Process Clause of the Fourteenth Amendment was intended to prevent government “from abusing [its] power, or employing it as an instrument of oppression,” Davidson v. Cannon, supra, at 348; see also Daniels v. Williams, supra, at 331 (“to secure the individual from the arbitrary exercise of the powers of government,” and “to prevent governmental power from being ‘used for purposes of oppression'”) (internal citations omitted); Parratt v. Taylor, 451 U.S. 527, 549 (1981) (Powell, J., concurring in result) (to prevent the “affirmative abuse of power”). Its purpose was to protect the people from the State, not to ensure that the State protected them from each other. The Framers were content to leave the extent of governmental obligation in the latter area to the democratic political processes.

    [11]Consistent with these principles, our cases have recognized that the Due Process Clauses generally confer no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual. See, e. g., Harris v. McRae, 448 U.S. 297, 317-318 (1980) (no obligation to fund abortions or other medical services) (discussing Due Process Clause of Fifth Amendment); Lindsey v. Normet, 405 U.S. 56, 74 (1972) (no obligation to provide adequate housing) (discussing Due Process Clause of Fourteenth Amendment); see also Youngberg v. Romeo, supra, at 317 (“As a general matter, a State is under no constitutional duty to provide substantive services for those within its border”). As we said in Harris v. McRae:

    “Although the liberty protected by the Due Process Clause affords protection against unwarranted government interference …, it does not confer an entitlement to such [governmental aid] as may be necessary to realize all the advantages of that freedom.”

    448 U.S., at 317-318 (emphasis added). If the Due Process Clause does not require the State to provide its citizens with particular protective services, it follows that the State cannot be held liable under the Clause for injuries that could have been averted had it chosen to provide them.[10] As a general matter, then, we conclude that a State’s failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause.

    [12]Petitioners contend, however, that even if the Due Process Clause imposes no affirmative obligation on the State to provide the general public with adequate protective services, such a duty may arise out of certain “special relationships” created or assumed by the State with respect to particular individuals. Brief for Petitioners 13-18. Petitioners argue that such a “special relationship” existed here because the State knew that Joshua faced a special danger of abuse at his father’s hands, and specifically proclaimed, by word and by deed, its intention to protect him against that danger. Id., at 18-20. Having actually undertaken to protect Joshua from this danger—which petitioners concede the State played no part in creating—the State acquired an affirmative “duty,” enforceable through the Due Process Clause, to do so in a reasonably competent fashion. Its failure to discharge that duty, so the argument goes, was an abuse of governmental power that so “shocks the conscience,” Rochin v. California, 342 U.S. 165, 172 (1952), as to constitute a substantive due process violation. Brief for Petitioners 20.[11]

    [13]We reject this argument. It is true that in certain limited circumstances the Constitution imposes upon the State affirmative duties of care and protection with respect to particular individuals. In Estelle v. Gamble, 429 U.S. 97 (1976), we recognized that the Eighth Amendment’s prohibition against cruel and unusual punishment, made applicable to the States through the Fourteenth Amendment’s Due Process Clause, Robinson v. California, 370 U.S. 660 (1962), requires the State to provide adequate medical care to incarcerated prisoners. 429 U.S., at 103-104.[12] We reasoned that because the prisoner is unable “‘by reason of the deprivation of his liberty [to] care for himself,'” it is only “‘just'” that the State be required to care for him. Ibid., quoting Spicer v. Williamson, 191 N.C. 487, 490, 132 S.E. 291, 293 (1926).

    [14]In Youngberg v. Romeo, 457 U.S. 307 (1982), we extended this analysis beyond the Eighth Amendment setting,[13] holding that the substantive component of the Fourteenth Amendment’s Due Process Clause requires the State to provide involuntarily committed mental patients with such services as are necessary to ensure their “reasonable safety” from themselves and others. Id., at 314-325; see id., at 315, 324 (dicta indicating that the State is also obligated to provide such individuals with “adequate food, shelter, clothing, and medical care”). As we explained: “If it is cruel and unusual punishment to hold convicted criminals in unsafe conditions, it must be unconstitutional [under the Due Process Clause] to confine the involuntarily committed—who may not be punished at all—in unsafe conditions.” Id., at 315-316; see also Revere v. Massachusetts General Hospital, 463 U.S. 239, 244 (1983) (holding that the Due Process Clause requires the responsible government or governmental agency to provide medical care to suspects in police custody who have been injured while being apprehended by the police).

    [15]But these cases afford petitioners no help. Taken together, they stand only for the proposition that when the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being. See Youngberg v. Romeo, supra, at 317 (“When a person is institutionalized—and wholly dependent on the State[,] … a duty to provide certain services and care does exist”). The rationale for this principle is simple enough: when the State by the affirmative exercise of its power so restrains an individual’s liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs—e.g., food, clothing, shelter, medical care, and reasonable safety—it transgresses the substantive limits on state action set by the Eighth Amendment and the Due Process Clause. See Estelle v. Gamble, supra, at 103-104; Youngberg v. Romeo, supra, at 315-316. The affirmative duty to protect arises not from the State’s knowledge of the individual’s predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his own behalf. See Estelle v. Gamble, supra, at 103 (“An inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met”). In the substantive due process analysis, it is the State’s affirmative act of restraining the individual’s freedom to act on his own behalf—through incarceration, institutionalization, or other similar restraint of personal liberty—which is the “deprivation of liberty” triggering the protections of the Due Process Clause, not its failure to act to protect his liberty interests against harms inflicted by other means.[14]

    [16]The Estelle-Youngberg analysis simply has no applicability in the present case. Petitioners concede that the harms Joshua suffered occurred not while he was in the State’s custody, but while he was in the custody of his natural father, who was in no sense a state actor.[15] While the State may have been aware of the dangers that Joshua faced in the free world, it played no part in their creation, nor did it do anything to render him any more vulnerable to them. That the State once took temporary custody of Joshua does not alter the analysis, for when it returned him to his father’s custody, it placed him in no worse position than that in which he would have been had it not acted at all; the State does not become the permanent guarantor of an individual’s safety by having once offered him shelter. Under these circumstances, the State had no constitutional duty to protect Joshua.

    [17]It may well be that, by voluntarily undertaking to protect Joshua against a danger it concededly played no part in creating, the State acquired a duty under state tort law to provide him with adequate protection against that danger. See Restatement (Second) of Torts § 323 (1965) (one who undertakes to render services to another may in some circumstances be held liable for doing so in a negligent fashion); see generally W. KEETON, D. DOBBS, R. KEETON, & D. OWEN, PROSSER AND KEETON ON THE LAW OF TORTS § 56 (5th ed. 1984) (discussing “special relationships” which may give rise to affirmative duties to act under the common law of tort). But the claim here is based on the Due Process Clause of the Fourteenth Amendment, which, as we have said many times, does not transform every tort committed by a state actor into a constitutional violation. See Daniels v. Williams, 474 U.S., at 335-336; Parratt v. Taylor, 451 U.S., at 544; Martinez v. California, 444 U.S. 277, 285 (1980); Baker v. McCollan, 443 U.S. 137, 146 (1979); Paul v. Davis, 424 U.S. 693, 701 (1976). A State may, through its courts and legislatures, impose such affirmative duties of care and protection upon its agents as it wishes. But not “all common-law duties owed by government actors were … constitutionalized by the Fourteenth Amendment.” Daniels v. Williams, supra, at 335. Because, as explained above, the State had no constitutional duty to protect Joshua against his father’s violence, its failure to do so—though calamitous in hindsight—simply does not constitute a violation of the Due Process Clause.[16]

    [18]Judges and lawyers, like other humans, are moved by natural sympathy in a case like this to find a way for Joshua and his mother to receive adequate compensation for the grievous harm inflicted upon them. But before yielding to that impulse, it is well to remember once again that the harm was inflicted not by the State of Wisconsin, but by Joshua’s father. The most that can be said of the state functionaries in this case is that they stood by and did nothing when suspicious circumstances dictated a more active role for them. In defense of them it must also be said that had they moved too soon to take custody of the son away from the father, they would likely have been met with charges of improperly intruding into the parent-child relationship, charges based on the same Due Process Clause that forms the basis for the present charge of failure to provide adequate protection.

    [19]The people of Wisconsin may well prefer a system of liability which would place upon the State and its officials the responsibility for failure to act in situations such as the present one. They may create such a system, if they do not have it already, by changing the tort law of the State in accordance with the regular lawmaking process. But they should not have it thrust upon them by this Court’s expansion of the Due Process Clause of the Fourteenth Amendment.

    Affirmed.

    Justice Brennan, with whom Justice Marshall and Justice Blackmun join, dissenting.

    [20]“The most that can be said of the state functionaries in this case,” the Court today concludes, “is that they stood by and did nothing when suspicious circumstances dictated a more active role for them.” Ante this page. Because I believe that this description of respondents’ conduct tells only part of the story and that, accordingly, the Constitution itself “dictated a more active role” for respondents in the circumstances presented here, I cannot agree that respondents had no constitutional duty to help Joshua DeShaney.

    [21]It may well be, as the Court decides, ante, at 194-197, that the Due Process Clause as construed by our prior cases creates no general right to basic governmental services. That, however, is not the question presented here; indeed, that question was not raised in the complaint, urged on appeal, presented in the petition for certiorari, or addressed in the briefs on the merits. No one, in short, has asked the Court to proclaim that, as a general matter, the Constitution safeguards positive as well as negative liberties.

    [22]This is more than a quibble over dicta; it is a point about perspective, having substantive ramifications. In a constitutional setting that distinguishes sharply between action and inaction, one’s characterization of the misconduct alleged under § 1983 may effectively decide the case. Thus, by leading off with a discussion (and rejection) of the idea that the Constitution imposes on the States an affirmative duty to take basic care of their citizens, the Court foreshadows—perhaps even preordains—its conclusion that no duty existed even on the specific facts before us. This initial discussion establishes the baseline from which the Court assesses the DeShaneys’ claim that, when a State has—”by word and by deed,” ante, at 197—announced an intention to protect a certain class of citizens and has before it facts that would trigger that protection under the applicable state law, the Constitution imposes upon the State an affirmative duty of protection.

    [23]The Court’s baseline is the absence of positive rights in the Constitution and a concomitant suspicion of any claim that seems to depend on such rights. From this perspective, the DeShaneys’ claim is first and foremost about inaction (the failure, here, of respondents to take steps to protect Joshua), and only tangentially about action (the establishment of a state program specifically designed to help children like Joshua). And from this perspective, holding these Wisconsin officials liable—where the only difference between this case and one involving a general claim to protective services is Wisconsin’s establishment and operation of a program to protect children—would seem to punish an effort that we should seek to promote.

    [24] I would begin from the opposite direction. I would focus first on the action that Wisconsin has taken with respect to Joshua and children like him, rather than on the actions that the State failed to take. Such a method is not new to this Court. Both Estelle v. Gamble, 429 U.S. 97 (1976), and Youngberg v. Romeo, 457 U.S. 307 (1982), began by emphasizing that the States had confined J.W. Gamble to prison and Nicholas Romeo to a psychiatric hospital. This initial action rendered these people helpless to help themselves or to seek help from persons unconnected to the government. See Estelle, supra, at 104 (“I]t is but just that the public be required to care for the prisoner, who cannot by reason of the deprivation of his liberty, care for himself”); Youngberg, supra, at 317 (“When a person is institutionalized—and wholly dependent on the State—it is conceded by petitioners that a duty to provide certain services and care does exist”). Cases from the lower courts also recognize that a State’s actions can be decisive in assessing the constitutional significance of subsequent inaction. For these purposes, moreover, actual physical restraint is not the only state action that has been considered relevant. See, e.g., White v. Rochford, 592 F.2d 381 (CA7 1979) (police officers violated due process when, after arresting the guardian of three young children, they abandoned the children on a busy stretch of highway at night).

    [25] Because of the Court’s initial fixation on the general principle that the Constitution does not establish positive rights, it is unable to appreciate our recognition in Estelle and Youngberg that this principle does not hold true in all circumstances. Thus, in the Court’s view, Youngberg can be explained (and dismissed) in the following way: “In the substantive due process analysis, it is the State’s affirmative act of restraining the individual’s freedom to act on his own behalf—through incarceration, institutionalization, or other similar restraint of personal liberty—which is the ‘deprivation of liberty’ triggering the protections of the Due Process Clause, not its failure to act to protect his liberty interests against harms inflicted by other means.” Ante, at 200. This restatement of Youngberg’s holding should come as a surprise when one recalls our explicit observation in that case that Romeo did not challenge his commitment to the hospital, but instead “argue[d] that he ha[d] a constitutionally protected liberty interest in safety, freedom of movement, and training within the institution; and that petitioners infringed these rights by failing to provide constitutionally required conditions of confinement.” 457 U.S., at 315 (emphasis added). I do not mean to suggest that “the State’s affirmative act of restraining the individual’s freedom to act on his own behalf,” ante, at 200, was irrelevant in Youngberg; rather, I emphasize that this conduct would have led to no injury, and consequently no cause of action under § 1983, unless the State then had failed to take steps to protect Romeo from himself and from others. In addition, the Court’s exclusive attention to state-imposed restraints of “the individual’s freedom to act on his own behalf,” ante, at 200, suggests that it was the State that rendered Romeo unable to care for himself, whereas in fact—with an I.Q. of between 8 and 10, and the mental capacity of an 18-month-old child, 457 U.S., at 309—he had been quite incapable of taking care of himself long before the State stepped into his life. Thus, the fact of hospitalization was critical in Youngberg not because it rendered Romeo helpless to help himself, but because it separated him from other sources of aid that, we held, the State was obligated to replace. Unlike the Court, therefore, I am unable to see in Youngberg a neat and decisive divide between action and inaction.

    [26]Moreover, to the Court, the only fact that seems to count as an “affirmative act of restraining the individual’s freedom to act on his own behalf” is direct physical control. Ante, at 200 (listing only “incarceration, institutionalization, [and] other similar restraint of personal liberty” in describing relevant “affirmative acts”). I would not, however, give Youngberg and Estelle such a stingy scope. I would recognize, as the Court apparently cannot, that “the State’s knowledge of [an] individual’s predicament [and] its expressions of intent to help him” can amount to a “limitation … on his freedom to act on his own behalf” or to obtain help from others. Ante, at 200. Thus, I would read Youngberg and Estelle to stand for the much more generous proposition that, if a State cuts off private sources of aid and then refuses aid itself, it cannot wash its hands of the harm that results from its inaction.

    [27]Youngberg and Estelle are not alone in sounding this theme. In striking down a filing fee as applied to divorce cases brought by indigents, see Boddie v. Connecticut, 401 U.S. 371 (1971), and in deciding that a local government could not entirely foreclose the opportunity to speak in a public forum, see, e.g., Schneider v. State, 308 U.S. 147 (1939); Hague v. Committee for Industrial Organization, 307 U.S. 496 (1939); United States v. Grace, 461 U.S. 171 (1983), we have acknowledged that a State’s actions—such as the monopolization of a particular path of relief—may impose upon the State certain positive duties. Similarly, Shelley v. Kraemer, 334 U.S. 1 (1948), and Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961), suggest that a State may be found complicit in an injury even if it did not create the situation that caused the harm.

    [28]Arising as they do from constitutional contexts different from the one involved here, cases like Boddie and Burton are instructive rather than decisive in the case before us. But they set a tone equally well established in precedent as, and contradictory to, the one the Court sets by situating the DeShaneys’ complaint within the class of cases epitomized by the Court’s decision in Harris v. McRae, 448 U.S. 297 (1980). The cases that I have cited tell us that Goldberg v. Kelly, 397 U.S. 254 (1970) (recognizing entitlement to welfare under state law), can stand side by side with Dandridge v. Williams, 397 U.S. 471, 484 (1970) (implicitly rejecting idea that welfare is a fundamental right), and that Goss v. Lopez, 419 U.S. 565, 573 (1975) (entitlement to public education under state law), is perfectly consistent with San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 29-39 (1973) (no fundamental right to education). To put the point more directly, these cases signal that a State’s prior actions may be decisive in analyzing the constitutional significance of its inaction. I thus would locate the DeShaneys’ claims within the framework of cases like Youngberg and Estelle, and more generally, Boddie and Schneider, by considering the actions that Wisconsin took with respect to Joshua.

    [29]Wisconsin has established a child-welfare system specifically designed to help children like Joshua. Wisconsin law places upon the local departments of social services such as respondent (DSS or Department) a duty to investigate reported instances of child abuse. See Wis. Stat. § 48.981(3) (1987-1988). While other governmental bodies and private persons are largely responsible for the reporting of possible cases of child abuse, see § 48.981(2), Wisconsin law channels all such reports to the local departments of social services for evaluation and, if necessary, further action. § 48.981(3). Even when it is the sheriff’s office or police department that receives a report of suspected child abuse, that report is referred to local social services departments for action, see § 48.981(3)(a); the only exception to this occurs when the reporter fears for the child’s immediate safety. § 48.981(3)(b). In this way, Wisconsin law invites—indeed, directs—citizens and other governmental entities to depend on local departments of social services such as respondent to protect children from abuse.

    [30]The specific facts before us bear out this view of Wisconsin’s system of protecting children. Each time someone voiced a suspicion that Joshua was being abused, that information was relayed to the Department for investigation and possible action. When Randy DeShaney’s second wife told the police that he had “‘hit the boy causing marks and [was] a prime case for child abuse,'” the police referred her complaint to DSS. Ante, at 192. When, on three separate occasions, emergency room personnel noticed suspicious injuries on Joshua’s body, they went to DSS with this information. Ante, at 192-193. When neighbors informed the police that they had seen or heard Joshua’s father or his father’s lover beating or otherwise abusing Joshua, the police brought these reports to the attention of DSS. App. 144-145. And when respondent Kemmeter, through these reports and through her own observations in the course of nearly 20 visits to the DeShaney home, id., at 104, compiled growing evidence that Joshua was being abused, that information stayed within the Department—chronicled by the social worker in detail that seems almost eerie in light of her failure to act upon it. (As to the extent of the social worker’s involvement in, and knowledge of, Joshua’s predicament, her reaction to the news of Joshua’s last and most devastating injuries is illuminating: “‘I just knew the phone would ring some day and Joshua would be dead.'” 812 F.2d 298, 300 (CA7 1987).)

    [31]Even more telling than these examples is the Department’s control over the decision whether to take steps to protect a particular child from suspected abuse. While many different people contributed information and advice to this decision, it was up to the people at DSS to make the ultimate decision (subject to the approval of the local government’s corporation counsel) whether to disturb the family’s current arrangements. App. 41, 58. When Joshua first appeared at a local hospital with injuries signaling physical abuse, for example, it was DSS that made the decision to take him into temporary custody for the purpose of studying his situation—and it was DSS, acting in conjunction with the corporation counsel, that returned him to his father. Ante, at 192. Unfortunately for Joshua DeShaney, the buck effectively stopped with the Department.

    [32]In these circumstances, a private citizen, or even a person working in a government agency other than DSS, would doubtless feel that her job was done as soon as she had reported her suspicions of child abuse to DSS. Through its child-welfare program, in other words, the State of Wisconsin has relieved ordinary citizens and governmental bodies other than the Department of any sense of obligation to do anything more than report their suspicions of child abuse to DSS. If DSS ignores or dismisses these suspicions, no one will step in to fill the gap. Wisconsin’s child-protection program thus effectively confined Joshua DeShaney within the walls of Randy DeShaney’s violent home until such time as DSS took action to remove him. Conceivably, then, children like Joshua are made worse off by the existence of this program when the persons and entities charged with carrying it out fail to do their jobs.

    [33]It simply belies reality, therefore, to contend that the State “stood by and did nothing” with respect to Joshua. Ante, at 203. Through its child-protection program, the State actively intervened in Joshua’s life and, by virtue of this intervention, acquired ever more certain knowledge that Joshua was in grave danger. These circumstances, in my view, plant this case solidly within the tradition of cases like Youngberg and Estelle.

    [34]It will be meager comfort to Joshua and his mother to know that, if the State had “selectively den[ied] its protective services” to them because they were “disfavored minorities,” ante, at 197, n.3, their § 1983 suit might have stood on sturdier ground. Because of the posture of this case, we do not know why respondents did not take steps to protect Joshua; the Court, however, tells us that their reason is irrelevant so long as their inaction was not the product of invidious discrimination. Presumably, then, if respondents decided not to help Joshua because his name began with a “J,” or because he was born in the spring, or because they did not care enough about him even to formulate an intent to discriminate against him based on an arbitrary reason, respondents would not be liable to the DeShaneys because they were not the ones who dealt the blows that destroyed Joshua’s life.

    [35]I do not suggest that such irrationality was at work in this case; I emphasize only that we do not know whether or not it was. I would allow Joshua and his mother the opportunity to show that respondents’ failure to help him arose, not out of the sound exercise of professional judgment that we recognized in Youngberg as sufficient to preclude liability, see 457 U.S., at 322-323, but from the kind of arbitrariness that we have in the past condemned. See, e.g., Daniels v. Williams, 474 U.S. 327, 331 (1986) (purpose of Due Process Clause was “to secure the individual from the arbitrary exercise of the powers of government” (citations omitted)); West Coast Hotel Co. v. Parrish, 300 U.S. 379, 399 (1937) (to sustain state action, the Court need only decide that it is not “arbitrary or capricious”); Euclid v. Ambler Realty Co., 272 U.S. 365, 389 (1926) (state action invalid where it “passes the bounds of reason and assumes the character of a merely arbitrary fiat,” quoting Purity Extract & Tonic Co. v. Lynch, 226 U.S. 192, 204 (1912)).

    [36]Youngberg’s deference to a decisionmaker’s professional judgment ensures that once a caseworker has decided, on the basis of her professional training and experience, that one course of protection is preferable for a given child, or even that no special protection is required, she will not be found liable for the harm that follows. (In this way, Youngberg’s vision of substantive due process serves a purpose similar to that served by adherence to procedural norms, namely, requiring that a state actor stop and think before she acts in a way that may lead to a loss of liberty.) Moreover, that the Due Process Clause is not violated by merely negligent conduct, see Daniels, supra, and Davidson v. Cannon, 474 U.S. 344 (1986), means that a social worker who simply makes a mistake of judgment under what are admittedly complex and difficult conditions will not find herself liable in damages under § 1983.

    [37]As the Court today reminds us, “the Due Process Clause of the Fourteenth Amendment was intended to prevent government ‘from abusing [its] power, or employing it as an instrument of oppression.'” Ante, at 196, quoting Davidson, supra, U.S., at 348. My disagreement with the Court arises from its failure to see that inaction can be every bit as abusive of power as action, that oppression can result when a State undertakes a vital duty and then ignores it. Today’s opinion construes the Due Process Clause to permit a State to displace private sources of protection and then, at the critical moment, to shrug its shoulders and turn away from the harm that it has promised to try to prevent. Because I cannot agree that our Constitution is indifferent to such indifference, I respectfully dissent.

    Justice Blackmun, dissenting.

    [38]Today, the Court purports to be the dispassionate oracle of the law, unmoved by “natural sympathy.” Ante, at 202. But, in this pretense, the Court itself retreats into a sterile formalism which prevents it from recognizing either the facts of the case before it or the legal norms that should apply to those facts. As Justice Brennan demonstrates, the facts here involve not mere passivity, but active state intervention in the life of Joshua DeShaney—intervention that triggered a fundamental duty to aid the boy once the State learned of the severe danger to which he was exposed.

    [39]The Court fails to recognize this duty because it attempts to draw a sharp and rigid line between action and inaction. But such formalistic reasoning has no place in the interpretation of the broad and stirring Clauses of the Fourteenth Amendment. Indeed, I submit that these Clauses were designed, at least in part, to undo the formalistic legal reasoning that infected antebellum jurisprudence, which the late Professor Robert Cover analyzed so effectively in his significant work entitled Justice Accused (1975).

    [40]Like the antebellum judges who denied relief to fugitive slaves, see id., at 119-121, the Court today claims that its decision, however harsh, is compelled by existing legal doctrine. On the contrary, the question presented by this case is an open one, and our Fourteenth Amendment precedents may be read more broadly or narrowly depending upon how one chooses to read them. Faced with the choice, I would adopt a “sympathetic” reading, one which comports with dictates of fundamental justice and recognizes that compassion need not be exiled from the province of judging. Cf. A. STONE, LAW, PSYCHIATRY, AND MORALITY 262 (1984) (“We will make mistakes if we go forward, but doing nothing can be the worst mistake. What is required of us is moral ambition. Until our composite sketch becomes a true portrait of humanity we must live with our uncertainty; we will grope, we will struggle, and our compassion may be our only guide and comfort”).

    [41]Poor Joshua! Victim of repeated attacks by an irresponsible, bullying, cowardly, and intemperate father, and abandoned by respondents who placed him in a dangerous predicament and who knew or learned what was going on, and yet did essentially nothing except, as the Court revealingly observes, ante, at 193, “dutifully recorded these incidents in [their] files.” It is a sad commentary upon American life, and constitutional principles—so full of late of patriotic fervor and proud proclamations about “liberty and justice for all”—that this child, Joshua DeShaney, now is assigned to live out the remainder of his life profoundly retarded. Joshua and his mother, as petitioners here, deserve—but now are denied by this Court—the opportunity to have the facts of their case considered in the light of the constitutional protection that 42 U.S.C. § 1983 is meant to provide.

    download arrowDeShaney v. Winnebago County – Audio and Transcript of Oral Argument

    Notes on DeShaney v. Winnebago County of Social Services: Constitutional Duty

    1. Was anyone paid to protect Joshua DeShaney? Who should or can protect a child from an abusive parent?  What relief is available to Joshua?
    2. “[N]othing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors. The Clause is phrased as a limitation on the State’s power to act, not as a guarantee of certain minimal levels of safety and security.” DeShaney, 489 U.S. at 195.  The above language is indicative of what many courts have termed the negative liberty concept inherent in the Federal Constitution.  As Judge Posner observed in Jackson v. Joliet, 715 F.2d 1200, 1203 (7th Cir. 1983):

      [T]he Constitution is a charter of negative liberties rather than positive liberties.  [Citations omitted]  The men who wrote the Bill of Rights were not concerned that government might do too little for the people but that it might do too much to them.  The Fourteenth Amendment, adopted in 1868 at the height of laissez-faire thinking, sought to protect Americans from oppression by state government, not to secure them basic governmental services.

      Is this a question of semantics? Does the provision of the Fifth Amendment “nor shall private property be taken for public use, without just compensation” impose an affirmative duty to pay just compensation, or does it impose a limitation on the government’s power?  Is the Sixth Amendment guarantee that “[i]n all criminal prosecutions, the accused shall enjoy the right … to have Assistance of Counsel for his defense” an affirmative right or a negative liberty?  Can every constitutional duty be phrased in the positive or negative?

    3. Is state law a potential source of an affirmative constitutional duty after DeShaney?
      1. In Collins v. City of Harker Heights, 503 U.S. 115 (1992), the widow of a city employee who was asphyxiated when he entered a manhole to unplug a sewer line alleged that the city had violated the substantive aspect of the Due Process Clause by failing to provide a reasonably safe working environment. The Supreme Court rejected the general proposition that the Due Process Clause triggered any affirmative obligation to provide for the safety of government employees. However, the Court was willing to assume that the Texas Hazard Communication Act, which required every employer to take specified precautions to protect workers from hazardous chemicals, created an entitlement that constituted a liberty interest within the meaning of the Fourteenth Amendment.  Id. at 129.  The Court then found that plaintiff had failed to prove the requisite arbitrariness to establish a breach of the constitutional duty.  See also Board of Regents v. Roth, 408 U.S. 564, 577 (1972) (“Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules and understandings that stem from an independent source of state law….”).
      2. Town of Castle Rock, Colorado v. Gonzales, 545 U.S. 748 (2005) arose out of the murder of Jessica Gonzales’ three daughters at the hands of their estranged father. In violation of a permanent restraining order, Gonzales’ husband picked up the daughters when they were playing outside their home. At 7:30 p.m., Ms. Gonzales called the police to notify them that her children were missing.  When the officers arrived at the scene, Ms. Gonzales showed them the restraining order.  She asked that the officers enforce the order and return the children to her immediately.  The officers advised Ms. Gonzales that there was nothing they could do about the restraining order. They suggested Ms. Gonzales call the Police Department if her children had not returned home by 10:00 p.m.At around 8:30 p.m., Ms. Gonzales spoke to her husband by cell phone.  He stated he had the three children at an amusement park in Denver.  Gonzales again called the police department.  The police refused to put out an all-points bulletin and told Ms. Gonzales to wait until 10:00 p.m. to see if her husband returned the girls. At around 10:10, Gonzales called the police and apprised them that her husband had not returned the children; she was told to wait until midnight.  Ms. Gonzales called again at midnight and told the dispatcher that her children were still missing.  Ms. Gonzales then went to her husband’s apartment.  Finding no one there, Gonzales called the police, and was told to wait for an officer to arrive.  When no police officer showed up, Ms. Gonzales went to the police station and submitted an incident report. The officer who took the report made no effort to enforce the restraining order or locate the children. Instead, he went to dinner.

        Less than three hours later, Ms. Gonzales’ husband arrived at the police station and was killed in a shootout after opening fire on the officers.  Inside his truck were the bodies of all three daughters, whom he already had murdered.

        Ms. Gonzales filed a Section 1983 action alleging that pursuant to official policy or custom, the town’s police officers failed to respond to her repeated reports that her husband was violating the terms of the restraining order.  The court of appeals ruled that the mother had alleged an actionable procedural due process claim because she had a protected property interest in the enforcement of the restraining order.

        The Supreme Court reversed.  While acknowledging that interests in property protected by the Due Process Clause are created by state law, the Court ruled that a benefit conferred by state law does not rise to an enforceable property interest if government officials have discretion whether to grant or deny the benefit. Colorado statutes required police to “use every reasonable means to enforce a restraining order” and to “arrest, or, if an arrest would be impractical under the circumstances, seek a warrant for the arrest of a restrained person” when the police officer has probable cause. The Court reasoned that neither statutory provision overrode the traditional discretion afforded police, especially where the parent violating the restraining order was never in the presence of the officers.  Furthermore, any non-discretionary statutory imperative that the police seek a warrant would be at most an entitlement to procedure, which would not confer standing, much less create a cognizable property interest.  Finally, even had the Colorado legislature intended to make enforcement of restraining orders mandatory, the Court ruled, such an entitlement did not have any “‘ascertainable monetary value’” as required to rise to a constitutionally protected property interest.  Town of Castle Rock, 545 U.S. at 767.

        The Court concluded:

        In light of today’s decision and that in DeShaney, the benefit that a third party may receive from having someone else arrested for a crime generally does not trigger protections under the Due Process Clause, neither in its procedural nor in its “substantive” manifestations.  This reflects continuing reluctance to treat the Fourteenth Amendment as a “font of tort law,” … but it does not mean States are powerless to provide victims with personally enforceable remedies. Although the framers of the Fourteenth Amendment and the Civil Rights Act of 1871 … did not create a system by which police departments are generally held financially accountable for crimes that better policing might have prevented, the people of Colorado are free to craft such a system under state law.

        Town of Castle Rock, 545 U.S. at 768-69.

      3. In Stoneking v. Bradford Area School District, 882 F.2d 720 (3rd Cir. 1989), the court considered whether Section 1983 liability could be premised upon the failure to protect a student from a sexually abusive teacher. The plaintiff had argued that Pennsylvania’s mandatory attendance law effectively created a custodial relationship between the state and the student.  The Stoneking court reasoned that in light of DeShaney “we can no longer rely on the statutory and common law duties imposed in Pennsylvania on school officials as a basis of a duty to protect students from harm occurring as a result of a third person.”  Id. at 723.
      4. Even if state law does not give rise to a federal constitutional duty to act, a positive right on occasion may be found in the state constitution. See Tucker v. Toia, 43 N.Y. 2d 1, 371 N.E.2d 449 (1977) (New York statute denying public benefits to needy persons under the age of 21 violates guarantees of Article XVII, Section 1 of New York Constitution providing, “The aid, care and support of the needy are public concerns and shall be provided by the state.”); North Carolina Constitution, Article XI, Section 4 (“Beneficent provision for the poor, the unfortunate, and the orphan is one of the first duties of a civilized and a Christian state.  Therefore, the General Assembly shall provide for and define the duties of a board of public welfare.”).
    4. What is the scope of the “special relationship” doctrine after DeShaney? May a “special relationship” giving rise to an affirmative duty to act be found absent state custody?  Does it matter if the state played a role in creating the danger?
      1. In K.H. v. Morgan, 914 F.2d 846 (7th Cir. 1990), plaintiff sued the Illinois Department of Children and Family Services as well as officials of the department for damages suffered from a series of allegedly improper foster care placements. In affirming the district court’s rejection of qualified immunity, the court distinguished DeShaney as follows:

        This is not a “positive liberties” case, like DeShaney, where the question was whether the Constitution entitles a child to governmental protection against physical abuse by his parents or by other private persons not acting under the direction of the state. The Supreme Court agreed with this court that there is no such entitlement. Here, in contrast, the state removed a child from the custody of her parents; and having done so, it could no more place her in a position of danger, deliberately and without justification, without thereby violating her rights under the due process clause of the Fourteenth Amendment than it could deliberately and without justification place a criminal defendant in a jail or prison in which his health or safety would be endangered, without violating his rights…. In either case the state would be a doer of harm rather than merely an inept rescuer, just as the Roman state was a doer of harm when it threw Christians to the lions….

        The Roman analogy is sound even if one concedes, as one must in the light of DeShaney, that the State of Illinois has no constitutional obligation to protect children from physical or sexual abuse by their parents. The state could have left K.H. to the tender mercies of her parents without thereby violating her rights under the Constitution.  But having removed her from their custody the state assumed at least a limited responsibility for her safety.

        Id. at 848-49.  See also Kneipp v. Tedder, 95 F. 3d 1199, 1208 (3d Cir. 1996) (state actor liable if “(1) the harm ultimately caused was foreseeable and fairly direct; (2) the state actor acted in willful disregard for the safety of the plaintiff; (3) there existed some relationship between the state and the plaintiff; and (4) the state actors used their authority to create an opportunity that otherwise would not have existed for the third party’s crime to occur.”); Ross v. United States, 910 F.2d 1422, 1431 (7th Cir. 1990) (county liable for cutting off private sources of rescue without providing a meaningful alternative); Wood v. Ostrander, 879 F.2d 583, 590 (9th Cir. 1989) (“the fact that Ostrander arrested Bell, impounded his car, and apparently stranded Wood in a high crime area at 2:30 a.m. triggers a duty of the police to afford her some peace and safety”).

      2. In Butera v. District of Columbia, 235 F.3d 637, 653-54 (D.C. Cir. 2001), the court of appeals recounted the varying circuit views of the elements necessary to give rise to a duty to intervene under the “state created danger” theory:

        While courts of appeals had adopted the State endangerment concept without prompting Supreme Court review, there was little consistency in courts’ explanations of the types of actions that would amount to constitutional liability.  The Eighth Circuit, for example, acknowledged that “[i]t is not clear, under DeShaney, how large a role the state must play in the creation of danger and in the creation of vulnerability before it assumes a corresponding constitutional duty to protect.”  The court later stated that, to establish constitutional liability, the plaintiff must demonstrate that he “would not have been in harm’s way but for the government’s affirmative actions.”  The Seventh Circuit, in turn, provided a slightly different standard, finding State endangerment where the State “greatly increased the danger to [the plaintiff] while constricting access to self-help.”  Other circuits, however, adopted more elaborate tests to determine whether the actions of State officials amounted to state endangerment and therefore triggered constitutional liability….

        While all these tests share the key element of State endangerment by affirmative conduct by State actors, they are inconsistent in their elaborations of the concept.  For example, the circuits have adopted different nexus requirements, and employed different degrees of specificity in defining actionable conduct.

      3. In Johnson v. City of Philadelphia, No. 19-2938 (3rd Cir. September 22, 2020), the court critiqued the state-created danger theory of liability:

        The state-created danger doctrine traces to a few words in the Supreme Court’s opinion in DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989)…. From those simple words—“played no part in their creation” and “render him any more vulnerable”—sprang a considerable expansion of the law.  While seemingly not part of DeShaney’s holding, lower courts seized on those words to create a new remedy that would, it was thought, aid the next “[p]oor Joshua.”  Thus was born the “state-created danger theory of liability, which we adopted in Kneipp v. Tedder, 95 F.3d 1199, 1205 (3d Cir. 1996)….  Charting a new course, we elevated the commentary in DeShaney and discovered that the Court had “left open the possibility that a constitutional violation might … occur[]” when a state “play[s a] part in … creat[ing]” a danger or when it “render[s a person] more vulnerable to” that danger.  Id. at 1205 (quoting DeShaney, 489 U.S. at 201).

        * * * * *

        Several other Circuit Courts have also recognized the state-created danger theory of liability.  But the Supreme Court has not.  And the doctrine has not escaped criticism, since it does not stem from the text of the Constitution or any other positive law, and consequently vests open-ended lawmaking power in the judiciary.  Moreover, the “state-created danger” doctrine offers little help to public employees seeking to better discharge their duties, and does not tell them “what to do, or avoid, in any situation.”

        Id. at 6-11.

      While the Johnson court proceeded to apply the doctrine, two of the three judges called for the full court of appeals to re-examine the viability of the state created danger theory of liability:

      First, “it is troubling how far we have expanded substantive due process” in this area. Kedra v. Schroeter, 876 F.3d 424, 462 (3d Cir. 2017) (Fisher, J., concurring).  As Judge Fisher noted in his concurrence in Kedra, we have gone much further than the Supreme Court by “fashioning” our own state-created danger doctrine and further still by “stating that there could be liability in non-custodial situations for gross negligence.”  Id. (citations omitted).  As the majority opinion observes, the state-created danger doctrine “has not escaped criticism, since it does not stem from the text of the Constitution or any other positive law.” Maj. Op. at 11.  I agree that, “[g]iven that our substantive due process doctrine has gradually lowered the bar for bringing a [state-created danger] claim, it may be time for this full Court to reexamine the doctrine.” Kedra, 876 F.3d at 462 (Fisher, J., concurring).

      Johnson v. City of Philadelphia, No. 19-2938 (3rd Cir. September 22, 2020) at 22 (Porter, J. concurring).

    5. If the Constitution imposes no affirmative duty to protect a private individual from the actions of a third party, is there any constitutional duty to protect an individual from other governmental officials?

      In Stoneking v. Bradford Area School District, 882 F.2d 720 (3rd Cir. 1989), the court held that the school district and its officials could be held liable for failure to protect a student from sexual abuse by a teacher.

      The principal distinction between DeShaney’s situation and that of Stoneking is that DeShaney’s injuries resulted at the hands of a private actor, whereas Stoneking’s resulted from the actions of a state employee.  The significance of the status of the perpetrator as a private actor rather than as a state official is referred to on numerous occasions in the DeShaney opinion.  Not only is the Court’s statement of the holding in terms of the identity of the actor … but the analytic steps taken by the Court to reach that holding continuously take note of the status of the person responsible for the injuries….

      Unlike DeShaney’s father, who was referred to throughout the DeShaney opinion as a private third party, Wright was a school district employee subject to defendant’s immediate control. In fact, many of Wright’s interactions with Stoneking occurred in the course of his performance of his official responsibilities, such as during school-sponsored events and trips, and sometimes on school property.

      Id. at 724.

      The same court, however, refused to apply this distinction to the state’s refusal to continue funding levels for services to mentally retarded persons living at home.

      The class attempts to distinguish DeShaney by arguing that in this case it is the Commonwealth, rather than private actors, that is causing the harm.  They assert that it is the state’s failure to maintain services to the mentally retarded living at home that results in their harm.  This cessation of action by the state, however, in no way differs from the DeShaney situation.  Just as in DeShaney, the retraction of state intervention permits the harm, but the harm in each case is actively caused by a source other than the state.

      Philadelphia Police and Fire Assn. v. City of Philadelphia, 874 F.2d 156, 167 (3rd Cir. 1989).

    6. Does the government owe any duty to protect its employees from private individuals in government custody? In Benavides v. Herrera, 883 F.2d 385 (5th Cir. 1989), local jailers brought a Section 1983 action against the sheriff and county for injuries suffered at the hands of inmates in the course of an escape attempt.  Plaintiff alleged that the sheriff had been warned that a jailbreak was imminent but did nothing in response. The court of appeals, relying on DeShaney, affirmed dismissal of the complaint for failure to state a claim.  The court observed the anomaly that the Constitution affords greater protection to prisoners than prison guards. The court reasoned, however, that unlike the prisoners, the guards were free to quit the relationship.

      In Cornelius v. Town of Highland Lake, 880 F.2d 348, 356 (11th Cir. 1989), the court acknowledged a duty to protect a town clerk who was abducted by inmates participating in a work program outside the prison:

      These inmates never assumed the status of parolee, releasee, furloughed inmate or unknown assailant as in Martinez…. In such cases the remoteness of the defendant’s conduct from the actual harm committed by an individual wholly outside the custody and control of the state is too great to impose liability.  However here, although the inmates eventually escaped from the custody of the defendants, at the time of the kidnaping they were still within the defendants’ custody and were in the community only by virtue of the defendants’ action in bringing them there…. [T]his custodial relationship supports a finding that the defendants had the power and authority to direct the inmates’ actions in a way that was absent in Martinez.… Such power and authority impose a responsibility upon the state for its own actions.

    7. Would DeShaney have had an actionable Section 1983 claim if the Department of Social Services had declined to intervene because he was African American? In McKee v. City of Rockwell, 877 F.2d 409 (5th Cir. 1989), plaintiff alleged that she was denied equal protection as the result of the refusal of officers to arrest her husband after a domestic assault. The court, in granting defendant’s motion for summary judgment, opined as follows:

      Because McKee’s complaint sounds in Equal Protection rather than Due Process, it is not directly barred by the holding in DeShaney. DeShaney is nonetheless relevant to our analysis of this case…. Footnote three does not permit plaintiffs to circumvent the rule of DeShaney by converting every Due Process Claim into an Equal Protection claim via an allegation that state officers exercised their discretion to act in one incident but not in another.

      * * * * *

      McKee cannot, however, prevail merely by showing that the officers knew facts that would have justified an arrest of Streetman.  This is the lesson of DeShaney:  that law enforcement officers have authority to act does not imply that they have any constitutional duty to act.  McKee can sustain her claim only by showing that the non-arrest was the result of discrimination against a protected class. McKee purports to find such discrimination in an alleged policy of the Rockwell Police Department discouraging arrests in domestic violence cases.  McKee contends that this policy discriminates against women.

      * * * * *

      [H]er argument reduces to an attempt to generalize a single incident—the police department’s inaction in her own case—into a general policy or practice. We have indicated in other contexts that a single incident, when unaccompanied by supporting history, will frequently be an inadequate basis for inferring a policy…. To permit such an argument in this case would eviscerate the discretion reserved to police officers by DeShaney.  Absent any evidence of a discriminatory policy, the only reasonable construction of the officers’ action in this case is that they decided that McKee’s complaint did not warrant any further response than what they gave.  As DeShaney makes clear, this judgment is not actionable.

      Id. at 413-16.  But see Village of Willowbrook v. Olech, 528 U.S. 562 (2000) (“Our cases have recognized successful equal protection claims brought by a ‘class of one,’ where the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.”).

      Judge Goldberg dissented from the court’s application of DeShaney to Equal Protection claims:

      DeShaney should play no role in McKee’s case.  DeShaney seeks to define a bright line limit to the substantive component of the Due Process Clause.  DeShaney specifically does not address claims based upon illegitimate distribution of public services in contravention of the Equal Protection Clause…

      Equal protection values are not tied to the scope or limits of governmental discretion, but are tied, instead, to the government’s obligation not to make illegitimate distinctions among those to whom the government provides services…

      The “democratic political processes” upon which the majority rests its hope that all people receive equal protection of the law is not adequate for the task of protecting people when distinctions are made upon suspect and quasi-suspect classifications… . We hold dear equal protection values, in large part, because the legislative process may fall short of the Constitution’s commands.  There can be no “discretion” to discriminate invidiously.

      Id. at 417-18.  See also Soto v. Flores, 103 F.2d 1056, 1066 (1st Cir. 1997) (to prevail on Equal Protection claim that police discriminate on the basis of sex of complaining witness in domestic disputes, plaintiff “must show that there is a policy or custom of providing less protection to victims of domestic violence than to victims of other crimes, that gender discrimination is a motivating factor, and that Soto was injured by the practice.”)

    8. Assuming an affirmative duty of government to act is found, what is the standard of culpability governing its duty?
      1. As noted earlier, in Collins v. City of Harker, 503 U.S. 115 (1992), the Supreme Court assumed that city sanitation workers had a Fourteenth Amendment liberty interest, founded in state statutes, obliging the city to provide warnings, safety training and protective equipment. The Court held, however, that this constitutional duty was not breached because the city’s failure to provide these protections was not “arbitrary:”

        Our refusal to characterize the city’s alleged omission as arbitrary in a constitutional sense rests on the presumption that the administration of government programs is based on rational decisionmaking process that takes account of competing social, political and economic forces. [citation omitted]  Decisions concerning the allocation of resources to individual programs, such as sewer maintenance, and to particular aspects of those programs, such as the training and compensation of employees, involve a host of policy choices that must be made by locally elected representatives, rather than by federal judges interpreting the basic charter of Government for the entire country.  The Due Process Clause “is not a guarantee against incorrect or ill-advised personnel decisions.”  Bishop v. Wood, 426 U.S. at 350. Nor does it guarantee municipal employees a workplace that is free of unreasonable risks of harm.

        Id. at 128-129.

      2. In Yvonne L. v. New Mexico Department of Human Services, 959 F.2d 883 (10th Cir. 1992), the court of appeals held that children who were sexually assaulted after having been placed by the state in a private foster care facility were entitled to recover for violation of their Fourteenth Amendment rights if the department “failed to exercise professional judgment.” The court rejected the position of other circuits that “deliberate indifference” was the appropriate standard of culpability, reasoning that “foster children, like involuntarily committed patients, are ‘entitled to more considerate treatment and conditions’ than criminals.”  Id. at 894.

        In Shaw by Strain v. Strackhouse, 920 F.2d 1135 (3rd Cir. 1990), an involuntarily institutionalized resident of a state mental institution alleged that the state failed to protect him against abuse and sexual assaults.  The court of appeals held that while the deliberate indifference standard applied to non-professional employees, a professional judgment standard governed professional decisionmakers, those persons “‘competent, whether by education, training or experience, to make the particular decision at issue.’”  Id. at 1147.  The court repudiated the professional defendants’ contention that the professional judgment standard was the functional equivalent of the negligence standard which the Supreme Court, in Daniels v. Williams, 474 U.S. 327 (1986), had held insufficient to constitute a deprivation within the meaning of the Fourteenth Amendment:

        [D]efendants’ attempt to equate professional judgment and negligence falls short of the mark.  Professional judgment is a relatively deferential standard.  It requires only that a state actor exercise professional judgment in choosing the appropriate course of action.  Negligence, however, imposes on a state official the burden of choosing, from among alternatives, a course of action consistent with the exercise of “due care.”  That means, as we see it, rejecting negligent alternatives that might nonetheless satisfy the demands of professional judgment.

        Admittedly, the two standards are premised on different criteria.  Thus, any attempt to place the two on a single continuum risks becoming, in the vernacular, a comparison of “apples and oranges.”  This dissimilarity notwithstanding, professional judgment appears to us to be a substantially less onerous standard than negligence from the viewpoint of the public actor.  Indeed, in our view, professional judgment more closely approximates—although … remains somewhat less deferential than—a recklessness standard. Professional judgment, like recklessness and gross negligence, generally falls somewhere between simple negligence and intentional misconduct.

        Id. at 1146.

      3. [T]he danger creation theory must ultimately rest on the specifics of a substantive due process claim—i.e., a claim predicated on reckless or intentionally injury-causing state action which “shocks the conscience.”

        * * * * *

        In order to discern whether the facts of the instant case “shock the conscience” so as to rise to the level of a substantive due process violation, we must bear in mind three basic priciples highlighted by the Supreme Court in evaluating substantive due process claims:  (1) the need for restraint in defining their scope; (2) the concern that § 1983 not replace state tort law; and (3) the need for deference to local policymaking bodies in making decisions impacting upon public safety.

        * * * * *

        [T]o satisfy the “shocks the conscience” standard, a plaintiff must do more than show that the government actor intentionally or recklessly caused injury to the plaintiff by abusing or misusing government power.  That is, the plaintiff must demonstrate a degree of outrageousness and a magnitude of potential or actual harm that is truly conscience shocking. Uhlrig v. Harder, 64 F.3d 567, 572-74 (10th Cir. 1995).  But see Butera v. District of Columbia, 235 F.3d 637, 651-52 (D.C. Cir. 2001) (where state has taken individual into custody, shocks the conscience standard may be satisfied by deliberate indifference).

      4. In Johnson v. City of Philadelphia, 975 F.3d 394 (3rd Cir. 2020), the court of appeals defined the “shocks the conscience” test that it held governed Section 1983 claims founded on the state created danger theory:

        Start with the standard, recognizing that it offers little light. See, e.g., Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973) (noting the shock-the-conscience test “is not one that can be applied by a computer, [but] it at least points the way”), quoted in Cty. of Sacramento v. Lewis, 523 U.S. 833, 847 (1998). We have explained that “[t]he exact level of culpability required to shock the conscience … depends on the circumstances of each case, and the threshold for liability varies with the state actor’s opportunity to deliberate before taking action.”  In “hyperpressurized environments requiring a snap judgment, an official must actually intend to cause harm in order to be liable.”  “In situations in which the state actor is required to act ‘in a matter of hours or minutes,’ … the state actor [must] ‘disregard a great risk of serious harm.’” “’And where the actor has time to make an ‘unhurried judgment[],’ a plaintiff need only allege facts supporting an inference that the official acted with a mental state of ‘deliberate indifference.’”  Id. at 401.

        In his concurring opinion, Judge Porter called for a revising the shocks the conscience test:

        Our precedent asks district courts to differentiate among the three tiers of culpability and apply them to a set of facts.  That is no simple task.  But it is further complicated by the mystifying differences we have drawn between the second and third tiers of culpability.  In my view, there is no practical difference between a “disregard of a great risk of serious harm” (the second tier) and a “conscious disregard of a substantial risk of serious harm” (the third tier).  Compare Great, The Concise Oxford Dictionary (last visited September 1, 2020) (“Of considerable importance, significance, or distinction; important, weighty; distinguished, prominent; famous, renowned; impressive.”), with Substantial, The Concise Oxford Dictionary (last visited September 1, 2020) (“[O]f real significance, weighty; reliable; important, worthwhile.”). But a “great” or “substantial” risk is obviously weightier than a merely “foreseeable” risk—regardless of whether that “foreseeable” risk is willfully ignored.  Our explication of the second and third tiers is inconsistent and nearly incoherent.  That is not surprising, however, because “guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended.” Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992).

        Assuming we continue to recognize the state-created danger doctrine at all, I suggest combining the second and third tiers into one and making the inquiry more straightforward:  For a state actor to be liable in a “hyperpressurized environment requiring a snap judgment,” he must actually intend to cause harm.  But in any other context, the state actor must act with deliberate indifference that shocks the conscience.  This articulation of the standard hews more closely to Supreme Court precedent, is more consistent with the tests established by our sister circuits that have adopted the state-created danger doctrine, and does not ask state actors like the operator and dispatcher in this case to ponder the gradations among a “substantial risk,” a “great risk,” and a “foreseeable danger” before reacting to an urgent 911 call.

        Id. at 405-06 (Porter, J. concurring).


  1. Lankford v. Gelston, 364 F.2d 197 (CA4 1966), was also cited by the District Court for the proposition that federal courts have the legal power to "supervise the functioning of the police department." 357 F. Supp., at 1320. But the court in Lankford intimated no such power, and the facts which confronted it are obviously distinguishable. There, in executing an "evil practice that has long and notoriously persisted in the Police Department," the police, searching over a 19-day period for two black men who murdered one of their ranks, conducted some 300 warrantless searches of private residences in a predominately Negro area "at all hours of the day and night" on nothing more than "unverified anonymous [telephone] tips." 364 F.2d, at 198, and 205 n.9. This "series of the most flagrant invasions of privacy ever to come under the scrutiny of a federal court" arose out of what several experienced police officers testified was a "routine practice" in "serious cases." Id., at 200-201. Injunctive relief under § 1983 was granted against the defendant Police Commissioner because the wholesale raids were the "effectuation of a plan conceived by high ranking [police] officials," a practice which in the interim the defendant had "renounced only obliquely, if at all," and as to which "the danger of repetition has not been removed." Id., at 202, 204.

  2. In this regard, however, this Court recently has approved the imposition of criminal liability without "consciousness of wrongdoing" for failure to supervise subordinates. United States v. Park, 421 U.S. 658 (1975). The concept, thus, is far from novel doctrine.

  3. "Under section 1983, equitable relief is appropriate in a situation where governmental officials have notice of the unconstitutional conduct of their subordinates and fail to prevent a recurrence of such misconduct. Hague v. CIO, 307 U.S. 496. (1939). From a legal standpoint, it makes no difference whether the plaintiffs' constitutional rights are violated as a result of police behavior which is the product of the active encouragement and direction of their superiors or as a result of the superiors' mere acquiescence in such behavior. In either situation, if the police officials had a duty, as they admittedly had here, to prevent the officers under their direction from committing the acts which are alleged to have occurred during the Convention, they are proper defendants in this action." Schnell v. City of Chicago, 407 F.2d 1084, 1086 (CA7 1969).

  4. Iqbal makes no claim against Ashcroft and Mueller based simply on his right, as a pretrial detainee, to be free from punishment prior to an adjudication of guilt on the fraud charges. See Bell v. Wolfish, 441 U.S. 520, 535 (1979).

  5. If I am mistaken, and the majority’s rejection of the concession is somehow outcome determinative, then its approach is even more unfair to Iqbal than previously explained, see supra, at 692, for Iqbal had no reason to argue the (apparently dispositive) supervisory liability standard in light of the concession.

  6. We note that the California courts accepted jurisdiction of this federal claim. That exercise of jurisdiction appears to be consistent with the general rule that where "'an act of Congress gives a penalty to a party aggrieved, without specifying a remedy for its enforcement, there is no reason why it should not be enforced, if not provided otherwise by some act of Congress, by a proper action in a State court.'" Testa v. Katt, 330 U.S. 386, 391, quoting Claflin v. Houseman, 93 U.S. 130, 137. See also Aldinger v. Howard, 427 U.S. 1, 36, n.17 (Brennan, J., dissenting); Grubb v. Public Utilities Comm'n, 281 U.S. 470, 476. We have never considered, however, the question whether a State must entertain a claim under § 1983. We note that where the same type of claim, if arising under state law, would be enforced in the state courts, the state courts are generally not free to refuse enforcement of the federal claim. Testa v. Katt, supra, at 394. But see Chamberlain v. Brown, 223 Tenn. 25, 442 S.W.2d 248 (1969).

  7. "Conduct by persons acting under color of state law which is wrongful under 42 U.S.C. § 1983 or § 1985 (3) cannot be immunized by state law. A construction of the federal statute which permitted a state immunity defense to have controlling effect would transmute a basic guarantee into an illusory promise; and the supremacy clause of the Constitution insures that the proper construction may be enforced. See McLaughlin v. Tilendis, 398 F.2d 287, 290 (7th Cir. 1968). The immunity claim raises a question of federal law." Hampton v. Chicago, 484 F.2d 602, 607 (CA7 1973), cert. denied, 415 U.S. 917.

  8. Compare the facts in Screws v. United States, 325 U.S. 91, where local law enforcement officials themselves beat a citizen to death.

  9. Petitioners also argue that the Wisconsin child protection statutes gave Joshua an "entitlement" to receive protective services in accordance with the terms of the statute, an entitlement which would enjoy due process protection against state deprivation under our decision in Board of Regents of State Colleges v. Roth, 408 U.S. 564 (1972). Brief for Petitioners 24-29. But this argument is made for the first time in petitioners' brief to this Court: it was not pleaded in the complaint, argued to the Court of Appeals as a ground for reversing the District Court, or raised in the petition for certiorari. We therefore decline to consider it here.

  10. The State may not, of course, selectively deny its protective services to certain disfavored minorities without violating the Equal Protection Clause. See Yick Wo v. Hopkins, 118 U.S. 356 (1886). But no such argument has been made here.

  11. The genesis of this notion appears to lie in a statement in our opinion in Martinez v. California, 444 U.S. 277 (1980). In that case, we were asked to decide, inter alia, whether state officials could be held liable under the Due Process Clause of the Fourteenth Amendment for the death of a private citizen at the hands of a parolee. Rather than squarely confronting the question presented here—whether the Due Process Clause imposed upon the State an affirmative duty to protect—we affirmed the dismissal of the claim on the narrower ground that the causal connection between the state officials' decision to release the parolee from prison and the murder was too attenuated to establish a "deprivation" of constitutional rights within the meaning of § 1983. Id., at 284-285. But we went on to say: "[T]he parole board was not aware that appellants' decedent, as distinguished from the public at large, faced any special danger. We need not and do not decide that a parole officer could never be deemed to 'deprive' someone of life by action taken in connection with the release of a prisoner on parole. But we do hold that at least under the particular circumstances of this parole decision, appellants' decedent's death is too remote a consequence of the parole officers' action to hold them responsible under the federal civil rights law." Id., at 285 (footnote omitted). Several of the Courts of Appeals have read this language as implying that once the State learns that a third party poses a special danger to an identified victim, and indicates its willingness to protect the victim against that danger, a "special relationship" arises between State and victim, giving rise to an affirmative duty, enforceable through the Due Process Clause, to render adequate protection. See Estate of Bailey by Oare v. County of York, 768 F.2d 503, 510-511 (CA3 1985); Jensen v. Conrad, 747 F.2d 185, 190-194, and n.11 (CA4 1984) (dicta), cert. denied, 470 U.S. 1052 (1985)); Balistreri v. Pacifica Police Dept., 855 F.2d 1421, 1425-1426 (CA9 1988). But see, in addition to the opinion of the Seventh Circuit below, Estate of Gilmore v. Buckley, 787 F.2d 714, 720-723 (CA1), cert. denied, 479 U.S. 882 (1986); Harpole v. Arkansas Dept. of Human Services, 820 F.2d 923, 926-927 (CA8 1987); Wideman v. Shallowford Community Hospital Inc., 826 F.2d 1030, 1034-1037 (CA11 1987).

  12. To make out an Eighth Amendment claim based on the failure to provide adequate medical care, a prisoner must show that the state defendants exhibited "deliberate indifference" to his "serious" medical needs; the mere negligent or inadvertent failure to provide adequate care is not enough. Estelle v. Gamble, 429 U.S., at 105-106. In Whitley v. Albers, 475 U.S. 312 (1986), we suggested that a similar state of mind is required to make out a substantive due process claim in the prison setting. Id., at 326-327.

  13. The Eighth Amendment applies "only after the State has complied with the constitutional guarantees traditionally associated with criminal prosecutions…. [T]he State does not acquire the power to punish with which the Eighth Amendment is concerned until after it has secured a formal adjudication of guilt in accordance with due process of law." Ingraham v. Wright, 430 U.S. 651, 671-672, n.40 (1977); see also Revere v. Massachusetts General Hospital, 463 U.S. 239, 244 (1983); Bell v. Wolfish, 441 U.S. 520, 535, n.16 (1979).

  14. Of course, the protections of the Due Process Clause, both substantive and procedural, may be triggered when the State, by the affirmative acts of its agents, subjects an involuntarily confined individual to deprivations of liberty which are not among those generally authorized by his confinement. See, e.g., Whitley v. Albers, supra, at 326-327 (shooting inmate); Youngberg v. Romeo, supra, at 316 (shackling involuntarily committed mental patient); Hughes v. Rowe, 449 U.S. 5, 11 (1980) (removing inmate from general prison population and confining him to administrative segregation); Vitek v. Jones, 445 U.S. 480, 491-494 (1980) (transferring inmate to mental health facility).

  15. Complaint para. 16, App. 6 ("At relevant times to and until March 8, 1984, [the date of the final beating,] Joshua DeShaney was in the custody and control of Defendant Randy DeShaney"). Had the State by the affirmative exercise of its power removed Joshua from free society and placed him in a foster home operated by its agents, we might have a situation sufficiently analogous to incarceration or institutionalization to give rise to an affirmative duty to protect. Indeed, several Courts of Appeals have held, by analogy to Estelle and Youngberg, that the State may be held liable under the Due Process Clause for failing to protect children in foster homes from mistreatment at the hands of their foster parents. See Doe v. New York City Dept. of Social Services, 649 F.2d 134, 141-142 (CA2 1981), after remand, 709 F.2d 782, cert. denied sub nom. Catholic Home Bureau v. Doe, 464 U.S. 864 (1983); Taylor ex rel. Walker v. Ledbetter, 818 F.2d 791, 794-797 (CA11 1987) (en banc), cert. pending Ledbetter v. Taylor, No. 87-521. We express no view on the validity of this analogy, however, as it is not before us in the present case.

  16. Because we conclude that the Due Process Clause did not require the State to protect Joshua from his father, we need not address respondents' alternative argument that the individual state actors lacked the requisite "state of mind" to make out a due process violation. See Daniels v. Williams, 474 U.S., at 334, n.3. Similarly, we have no occasion to consider whether the individual respondents might be entitled to a qualified immunity defense, see Anderson v. Creighton, 483 U.S. 635 (1987), or whether the allegations in the complaint are sufficient to support a § 1983 claim against the county and DSS under Monell v. New York City Dept. of Social Services, 436 U.S. 658 (1978), and its progeny.

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