aw enforcement supervisors need to be aware that, in certain circumstances, they can be held individually liable for acts of their subordinates even though respondeat superior or vicarious liability theories do not apply in civil rights cases. Since 1978 the law has been clear that law enforcement entities cannot be held liable based on the theory of respondeat superior (or vicarious liability) for acts of their individual employees in these cases.1 This means they cannot be held liable just because they employed the person who acted unlawfully.
Generally, for individual liability to attach in civil rights cases, individual law enforcement officers must personally participate (take some action) to cause the alleged constitutional deprivation.2 However, some courts have held supervisors liable in their individual capacities, even if they did not "personally participate" in the unconstitutional act committed by their subordinate.
This article gives an overview of circumstances when claims or verdicts against supervisors, in their individual capacities, have been upheld. Federal courts have found that individual liability can exist when a supervisor directed subordinates to violate a person's constitutional rights, if the supervisor had knowledge of and acquiesced in the subordinate's unconstitutional behavior, or if the supervisor tolerated past and ongoing misbehavior.3 In considering this form of individual capacity liability, courts consider whether there was an "affirmative causal link" between the supervisor's inactions and the constitutional injury.
An example of a supervisor's acquiescence is illustrated by the Third Circuit's reversal of a lower court's grant of summary judgment against an officer who was in charge of a drug raid. In Baker v. Monroe Township the appellate court remanded the case for a determination of whether the supervisor could be personally liable. Family members, who approached a relative's house during a drug raid, alleged they and their property were illegally searched and seized, and excessive force was used.4 The court found that although the supervisor did not personally use excessive force, there was sufficient evidence to infer that he knew of and acquiesced in the treatment of plaintiffs by other officers acting under his supervision.5
In Gutierrez-Rodriguez v. Cartagena, et al., the First Circuit considered whether various supervisors were liable for lower ranking officers' acts that caused the plaintiff severe injury.6 In that case, plainclothes policemen, with their guns drawn, approached a couple in a car parked in a drug trafficking area. When the couple began to drive off, the officers began firing without warning or identifying themselves, striking the plaintiff, who, as a result, became a paraplegic. The First Circuit upheld the jury award of $4.5 million in compensatory damages and more than $600,000 in punitive damages.
The court upheld the jury's finding of liability against the on-scene supervisor, Agent Soto, noting that he directed and participated in the acts that led to the shooting.7 The court also upheld the verdict against the Drugs and Narcotics Division director, finding that he had supervised Soto previously and knew of Soto's "violent character" and numerous citizen mistreatment complaints.8 Despite this knowledge, the director continued to send him out as a supervisor.
As to the police superintendent, the First Circuit found that every complaint filed against an officer went to the superintendent, as head of the department's disciplinary system, for disposition and he had the sole authority to suspend, fire, or otherwise discipline any officer.9 The court noted that he signed letters dismissing 12 of 13 complaints against Soto and refused to consider an officer's past handling of complaints when reviewing an officer's conduct.10 The court found that he was "affirmatively linked to the shooting" as he used a "bankrupt disciplinary system, and took virtually no action against Soto."11 A reckless or callous indifference standard was applied in considering "supervisor liability."12
Failure to Act or Discipline
A past supervisor's failure to report or discipline an employee for past behavior led the Fourth Circuit to affirm a lower court's decision not to dismiss him from a lawsuit before trial. In a case brought by a widow of an arrestee who was shot and killed by a state trooper, the appellate court found that the arrestee had been stopped on suspicion of driving while impaired, tried to run from the car, and was caught. An altercation occurred; it ended when the trooper shot and killed the driver.13 Sergeant Stroud had been the trooper's sergeant for five years but had not been the trooper's supervisor for 15 months before the shooting.
The court noted that Sergeant Stroud had knowledge of at least three incidents in which the trooper had used excessive force and posed an unreasonable risk of harm to arrestees, and that he responded "callously and with apparent amusement" to reports of excessive force.14 His inaction, the court found, raised questions for the jury about whether he "was deliberately indifferent or acquiesced in the constitutionally offensive conduct of his subordinates."15 The Fourth Circuit upheld the dismissal of the trooper's supervisor at the time of the shooting because he had made records of complaints, monitored the trooper's actions, and reported the trooper's actions to his supervisors.16
Similarly, the Eleventh Circuit held that there was a causal connection between the supervisor's actions and a constitutional violation when a history of widespread abuse put the supervisor on notice of the need for improved training or supervision, but he failed to take corrective action.17 In Fundiller v. City of Cooper City the plaintiff, who was shot without "provocation or warning" by an undercover officer after ordering the plaintiff and companions not to touch their guns during a drug buy, alleged that the city's public safety director was "aware of police use of unlawful, excessive force."18 The court held that the plaintiff had stated an individual capacity claim against the director.19
The Eighth Circuit also declined to dismiss a police chief, in his individual capacity, before trial because there was a disputed material fact as to whether the chief had not only failed to act on prior known complaints of an officer's alleged rapes but also failed to adequately supervise the officer.20
Facilitate, Approve, Condone, or Turn a Blind Eye-and You Could Be Liable
Individual liability, according to the Seventh Circuit, is established for supervisory officers if they knew about the unconstitutional conduct and facilitated it, approved it, condoned it, or turned "a blind eye for fear of what they might see."21 In Jones v. City of Chicago the court found that the three named supervisors "had known every false step taken by the subordinate officers, had approved every false step, and had done their part to make the scheme work."22 According to the court, the subordinates had signed a report full of falsehoods and threatened one officer who had found evidence that the wrong person had been charged with murder.23 The court found that the defendants were not disciplined for the cover-up of exculpatory material or for other misconduct involved in the prosecution of the wrong person.24
In Larez v. City of Los Angeles, et al.,25 the Ninth Circuit upheld the jury's verdict of finding LAPD Chief Gates liable in his individual capacity. The court noted that while a "supervisor will rarely be directly and personally involved in the same way as individual officers who are on the scene inflicting constitutional injury,"26 that does not prevent individual liability by a supervisor, as "his participation may involve the setting in motion of acts which cause others to inflict constitutional injury." The court found that Chief Gates had condoned, ratified, and encouraged the use of excessive force and failed to sustain complaints and discipline the officers for beating up a family.27
Some circuits have looked to whether the individual supervisors were deliberately indifferent to an incident or in their supervision of subordinates. For example, the Tenth Circuit found an individual capacity claim was stated against a warden who was deliberately indifferent to knowledge of a vicious assault of an inmate.28 In the Second Circuit, an individual capacity claim was stated when the supervisor knew or should have known of a high degree of probability that his subordinate would act unconstitutionally and was deliberately indifferent to that risk.29 To avoid individual liability, the Fifth Circuit requires that supervisors oversee their employees in a manner that is not deliberately indifferent to the constitutional rights of citizens.30
Finally, in the Sixth Circuit, claims of "supervisor liability" are not actionable unless the supervisor encouraged the specific incident of misconduct or in some other way directly participated in it.31
In summary, supervisors need to remember that they may be individually liable for acts of subordinates in federal civil rights cases, even though they did not "personally participate" in violating a person's constitutional rights. But because not all federal courts evaluate individual "supervisor liability" in the same manner, local counsel should be consulted to ensure supervisors know when they may be individually liable for acts of their subordinates. ■