While the term “supervisor” is often used to describe a first-line supervisor, supervisory liability can be incurred by any supervisor: first-line, second-line, third-line, and so on. Any police commander can be sued personally for supervisory liability where there are alleged supervisory failures.
In lawsuits brought under state law (for negligence, as an example) the law varies somewhat from state to state on when a supervisor can be held liable for the actions of a subordinate. Most lawsuits against police, however, involve claims of federal constitutional misconduct and are brought under Title 42 of the United States Code, Section 1983. These actions are commonly referred in legal shorthand simply as Section 1983 lawsuits.
Whereas it is well understood that in a Section 1983 lawsuit, policies and/or customs of bad supervision in hiring, training, and discipline can cause municipal liability, the personal liability of supervisors themselves is a somewhat different issue. When, for example, might a police lieutenant be held personally liable for constitutional misdeeds on the part of his subordinates?
While the Supreme Court has not spoken directly to this issue, lower courts have. They have created a sort of deliberate indifference standard similar to the one used by the Supreme Court for municipal liability cases. Following is a brief survey of how some high federal courts have gone about determining whether a police supervisor should be held personally liable for the violation of constitutional rights by an officer under his supervision.
In Shaw v. Stroud, 13 F. 3d 791 (4th Cir. 1994), the Fourth Circuit United States Court of Appeals listed the elements necessary, in its view, for a finding of supervisory liability, 1) the supervisor had actual or constructive knowledge that his subordinate was engaged in conduct that posed a pervasive and unreasonable risk of constitutional injury to citizens like the plaintiff, 2) the supervisor’s response to that knowledge was so inadequate as to show deliberate indifference to or tacit authorization of the alleged offensive practices, and 3) there was an affirmative causal link between the supervisor’s inaction and the particular constitutional injury suffered by the plaintiff. Showing a pervasive or unreasonable risk of harm requires evidence that the conduct is widespread or has occurred at least on several different occasions. Continued inaction in the face of documented widespread abuses creates a clear case of deliberate indifference by supervisors, according to the Fourth Circuit.
The First Circuit United States Court of Appeals creates this set of requirements for proof of supervisory liability, 1) a grave risk of harm, 2) the supervisor’s actual or constructive knowledge of that risk, 3) his failure to take easily available measures to address that risk and, 4) an affirmative connection between the supervisor’s conduct and the subordinate’s violative act or omission. Camillo Robles v. Hoyos, 151 F. 3d 1 (1st Cir. 1998). According to the First Circuit: “Notice is a salient consideration in determining the existence of supervisory liability…Nonetheless, supervisory liability does not require a showing that the supervisor had actual knowledge of the offending behavior; ‘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.’” Quoting from Maldonado-Denis v. Rodriguez, 23 F. 3d 576 (1st Cir. 1994).
The Tenth and Third Circuits, among some other lower courts, require personal direction or actual knowledge and acquiescence for proof of supervisory liability. See, for example, Baker v. Monroe Township, 50 F. 3d 1186 (3rd Cir. 1995) and Lankford v. City of Hobart, 73 F. 3d 283 (10th Cir. 1996). Other courts hold that a reckless disregard of apparent risks is sufficient even though there was no proof of actual or constructive knowledge. See Rascon v. Hardiman, 803 F. 2d 269 (7th Cir. 1986).
The Second Circuit sets out this test for supervisory liability, 1) the supervisor, after learning of the wrong, failed to remedy it, 2) the supervisor created a policy or custom under which the unconstitutional practices occurred or were allowed to continue, 3) the supervisor was grossly negligent in managing subordinates who caused the illegality.
Whatever else can be said about the test or standard for proving supervisory liability, lower courts seem to agree that it requires more than mere negligence. The hurdle for plaintiffs is higher than that. See Daniels v. Williams, 474 U. S. 327 (1986). In Braddy v. Florida Department of Labor and Employment Security, 133 F. 3d 797 (11th Cir. 1998), the Eleventh Circuit says, “The standard by which a supervisor is held liable in her individual capacity for the actions of a subordinate is extremely rigorous.”
Failure to train can also be a basis for individual supervisory liability. See for example, Sutton v. Utah State School for the Deaf & Blind, 173 F. 3d 1226 (10th Cir. 1999) where the Court of Appeals stated: “Where a supervisor’s failure to train amounts to deliberate indifference to the rights of persons with whom his subordinates comes into contact, the inadequacy of training may serve as the basis for Section 1983 liability.”
It is clear that many lower courts intend to impose liability on the individuals who create policies and customs roughly on the same evidentiary basis as would support a finding of municipal liability. If that is true, then wherever there is liability to the municipality, there would be corresponding personal liability exposure to supervisors (from first-line to chief).
Clearly, the same involved-officer testimony that aids the plaintiff’s municipal liability claim, i.e., “this happens all the time, and if there is anything wrong with that, nobody ever told me,” also would aid the plaintiff’s claim against individual supervisors. The liability fates of individual supervisors and of the municipality itself are inevitably closely linked.
Probably the reason there are not more claims against individual supervisors is that if the plaintiff can get to individual supervisors, the governmental entity has fallen also, which is what the plaintiff’s attorney wanted most in the first place. Nonetheless, it is appropriate that supervisors at all levels have a sense of when and if they might find themselves personally liable for the actions of their subordinate officers.
Naturally, where supervisors are named as defendants in a lawsuit, the potential for conflicts of interests among defendants—and therefore the need for separate lawyers from the municipality and possibly from one another—multiplies considerably, adding potential layer upon layer of costs. All of this suggests the importance of municipal policy makers and lower level supervisors being on the same page proactively.
Randy Means is a partner in the Charlotte, NC law firm of Thomas and Means, LLP, and specializes entirely in police operations and administration. He formerly served as head of legal training for North Carolina’s state law enforcement training center and then police attorney for the city of Charlotte. He is the primary legal instructor for the IACP. He has conducted law enforcement training in 47 states and Canada and is the author of a “The Law of Policing.” He can be reached at firstname.lastname@example.org.