Who Will Supervise the Supervisors? Establishing Liability for Failure to Train, Supervise, or Discipline Subordinates in a Post-Iqbal/Connick World

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Publication Date

Spring 3-1-2012


Prior to 2009, federal courts recognized that supervisors could be held accountable under 42 U.S.C. 1983 for their wrongdoing. In that statute, Congress expressed its intent to safeguard constitutional and federal statutory rights by providing a cause of action against any person who “under color of state law deprives or causes a person to be deprived” of federal rights. Two recent Supreme Court decisions have eroded this safeguard. In Ashcroft v. Iqbal, the Court held that supervisors could not be liable for the constitutional wrongdoing of their subordinates, even if they know of and acquiesce in that wrongdoing. Two years later, in Connick v. Thompson, the Court held that a district attorney's office could never be held liable based on a single Brady violation, even where the district attorney conceded that Brady training in his office was inadequate. This Article proposes an objective deliberate indifference standard in all supervisory “failure to” cases and recommends a narrow interpretation of Connick, under which supervisors and government entities would be held liable for the constitutional wrongdoing of their subordinates where violations are a “highly predictable consequence” of their failure to train or supervise, even without evidence of a pattern of violations.

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