Title International Action Center v. U.S.
Argued February 6, 2004 Decided April 16, 2004
Subject Employment Law
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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 6, 2004 Decided April 16, 2004
No. 03-5163
INTERNATIONAL ACTION CENTER, ET AL.,
APPELLEES
v.
UNITED STATES OF AMERICA, ET AL.,
APPELLEES
ROBERT ATCHESON, ET AL.,
APPELLANTS
Appeal from the United States District Court
for the District of Columbia
(No. 01cv00072)
Edward E. Schwab, Assistant Corporation Counsel, argued
the cause and filed the briefs for appellants.
Carl Messineo argued the cause for appellees International
Action Center, et al. With him on the brief was Mara E.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
VerheydenHilliard. Zachary J. Wolfe entered an appear-
ance.
Before: EDWARDS, GARLAND, and ROBERTS, Circuit Judges.
Opinion for the Court filed by Circuit Judge ROBERTS.
ROBERTS, Circuit Judge: Plaintiffs seek to hold police su-
pervisors personally liable for constitutional torts allegedly
committed by their subordinates, on two alternate theories:
that the supervisors actively participated in the torts, and
that the supervisors failed properly to train and supervise the
subordinates, in circumstances making it likely that such
failure would lead to the tortious conduct. The supervisors
seek interlocutory review of the district court's denial of their
claim of qualified immunity, but only with respect to the
second, inaction theory of liability. We hold that the district
court erred in denying qualified immunity on that claim, and
accordingly reverse.
Background
This interlocutory appeal arises out of a suit filed by two
organizations and several individuals against the United
States, the United States Secret Service, the National Park
Service, the District of Columbia, the District of Columbia
Metropolitan Police Department (MPD), the Presidential In-
augural Committee, and six individual MPD officers, com-
plaining about law enforcement activities during the 2001
Presidential Inaugural Parade. Plaintiffs are the Interna-
tional Action Center (IAC), described in the complaint as ``an
unincorporated political association opposed to racism, sex-
ism, oppression of lesbians, gays, bisexuals and transgen-
dered people, war and militarism, and the program of the
Bush Administration,'' and IAC's two co-directors; Justice
Action Movement (JAM), described in the complaint as ``a
multi-issue coalition advocating a political system that gives
each person full representation and justice,'' and three ``orga-
nizers'' for JAM; and several individuals alleged to have been
present at the 2001 Presidential Inaugural Parade, including
3
Elizabeth Ayer and Lowell T. Fletcher. First Am. Compl. at
45; Additions to Second Am. Compl. at 2.
As pertinent here, plaintiffs allege that Ayer and Fletcher
were ``engaged in only lawful, peaceful activity'' at the Navy
Memorial on Pennsylvania Avenue along the parade route the
day of the Inaugural Parade, when `` u ndercover government
agents provocateur'' -- later identified by plaintiffs as MPD
officers Patrick A. Cumba and Jed D. Worrell -- ``without
justification, struck them TTT and sprayed a chemical agent
into their eyes and face s at close range.'' First Am.
Compl. at 5; see Additions to Second Am. Compl. at 24.
Cumba and Worrell allegedly also struck other demonstrators
and sprayed them with pepper spray, while other uniformed
and non-uniformed police officers stood by and watched.
Plaintiffs allege that uniformed officers eventually ``mock
arrest ed '' Cumba and Worrell, briefly detaining them before
releasing them back into the crowd. First Am. Compl. at 3,
19.
Among their various complaints, plaintiffs seek to hold
Cumba's and Worrell's supervisors personally liable for mon-
ey damages under 42 U.S.C. § 1983 for the injuries allegedly
inflicted by Cumba and Worrell. Four MPD supervisors
were among those sued: Captain Robin Hoey, who command-
ed the MPD Intelligence Detail ``responsible for monitoring
events throughout the areas surrounding TTT the parade
route,'' Aff. of Robin Hoey at 1, and three MPD lieuten-
ants -- Lorraine Kittrell, Cheryl Pendergast, and Robert
Atcheson -- each of whom had supervisory responsibilities
for the various Intelligence Teams comprising the Intelli-
gence Detail. The MPD supervisors are personally liable,
plaintiffs contend, under two alternate theories: (1) what
plaintiffs term their ``affirmative participation or malfeasance''
theory, Appellees' Br. at 8, based on the claim that the
supervisors ``directed, encouraged, or acquiesced in the un-
lawful and unconstitutional conduct'' of Cumba and Worrell,
Additions to Second Am. Compl. ¶ 19, and (2) plaintiffs'
``deliberate indifference, or TTT non-feasance'' theory, Appel-
lees' Br. at 8, based on the claim that the supervisors ``failed
to exercise appropriate command authority relating to the
4
unlawful and unconstitutional conduct of'' Cumba and Wor-
rell, Additions to Second Am. Compl. ¶ 18.
The MPD supervisors filed a motion to dismiss or for
summary judgment on grounds of qualified immunity. The
district court denied the motion. Addressing plaintiffs' theo-
ry of affirmative participation, the court noted that the super-
visors denied even witnessing the alleged events at the Navy
Memorial in person or on surveillance feeds, so ``there are
clearly material facts in dispute regarding the MPD supervi-
sors' affirmative participation in the MPD actions at the
Memorial.'' Mem. op. at 8. As for plaintiffs' theory predicat-
ed on the supervisors' inaction rather than affirmative mis-
conduct, the district court defined the question as ``whether
the MPD supervisors had a duty to supervise or train the
MPD officers at the Navy Memorial to prevent the alleged
First and Fourth Amendment violations.'' Id. The court
concluded that plaintiffs could proceed with their inaction
claim because they had sufficiently alleged that ``it was `highly
likely' given the circumstances at the Navy Memorial TTT that
MPD officers would violate citizens' constitutional rights,''
triggering an obligation on the supervisors to take steps to
prevent those violations. Id. at 9 (quoting Haynesworth v.
Miller, 820 F.2d 1245, 1261 (D.C. Cir. 1987)).
Appellate Jurisdiction
The MPD supervisors filed this interlocutory appeal, chal-
lenging the district court's denial of their qualified immunity
claim. Plaintiffs contend that we should simply remand
without considering the supervisors' contentions, because the
district court denied qualified immunity with respect to each
of the plaintiffs' theories of liability -- affirmative partic-
ipation and inaction -- and the supervisors seek review only
of the denial on the inaction claim. Appellees' Br. at 10. We
accordingly begin by considering whether we have jurisdic-
tion to hear this appeal.
This court has jurisdiction over appeals from ``final deci-
sions of the district court .'' 28 U.S.C. § 1291. ``A denial of
summary judgment is ordinarily not `final,' because it simply
5
sends a case to trial.'' Farmer v. Moritsugu, 163 F.3d 610,
613 (D.C. Cir. 1998). Under the collateral order doctrine, see
Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546
(1949), however, we have jurisdiction to hear interlocutory
appeals from denials of qualified immunity -- ``to the extent
that the denial turns on an issue of law.'' Mitchell v.
Forsyth, 472 U.S. 511, 530 (1985).
That last-quoted qualification caused the MPD supervisors
to limit their appeal. Noting that the district court had ruled
against their assertion of qualified immunity with respect to
the ``affirmative participation'' claim because of the existence
of disputed issues of material fact, the supervisors chose not
to appeal that aspect of the district court's decision. As the
supervisors noted, the Supreme Court in Johnson v. Jones,
515 U.S. 304 (1995), held that a defendant may not appeal a
district court's order denying summary judgment on qualified
immunity ``insofar as that order determines whether or not
the pretrial record sets forth a `genuine' issue of fact for
trial.'' Id. at 320. This appeal was accordingly limited to the
denial of qualified immunity with respect to the inaction
claim.
We have jurisdiction to hear the supervisors' limited ap-
peal. In Behrens v. Pelletier, 516 U.S. 299, 312 (1996), the
Supreme Court explained that `` t he Harlow right to immuni-
ty is a right to immunity from certain claims, not from
litigation in general.'' The Court emphasized that ``when
immunity with respect to those claims has been finally denied,
appeal must be available, and cannot be foreclosed by the
mere addition of other claims to the suit.'' Id.
The Ninth Circuit in Beier v. City of Lewiston, 354 F.3d
1058 (9th Cir. 2004), recently determined that it had jurisdic-
tion to hear an appeal from the denial of summary judgment
on the ground of qualified immunity for one claim, even
though the defendants did not appeal the denial of summary
judgment on another claim. Relying on Behrens, the court
rejected the argument that the defendants could not appeal
the denial of qualified immunity as to one claim because they
would still have to go to trial on another. The Ninth Circuit
6
concluded that if this ``argument were to prevail, any plaintiff
alleging multiple claims arising under a single constitutional
provision would be able to circumvent a qualified immunity
appeal as long as one of those claims has some merit.'' Id. at
1064. So too here the fact that the qualified immunity claim
is not ripe for appeal with respect to the active participation
claims should not prevent the MPD supervisors from obtain-
ing prompt review of the denial of qualified immunity as to
the inaction claims. See, e.g., Saucier v. Katz, 533 U.S. 194,
201 (2001) (``we repeatedly have stressed the importance of
resolving immunity questions at the earliest possible stage in
litigation'') (quotation omitted). A contrary approach would
lead to what the Supreme Court has termed the ``intolerable''
result that `` i f the district court rules erroneously, the
qualified-immunity right not to be subjected to pretrial pro-
ceedings will be eliminated, so long as the plaintiff has alleged
(with or without evidence to back it up) violation of one
`clearly established' right.'' Behrens, 516 U.S. at 312.
Merits
Qualified immunity protects government officials ``from lia-
bility for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of
which a reasonable person would have known.'' Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). In developing the
doctrine of qualified immunity, the Supreme Court has sought
to strike a balance ``between the interests in vindication of
citizens' constitutional rights and in public officials' effective
performance of their duties.'' Anderson v. Creighton, 483
U.S. 635, 639 (1987) (quotation omitted). Recognizing that
``bare allegations of malice should not suffice to subject
government officials either to the costs of trial or to the
burdens of broad-reaching discovery,'' Harlow, 457 U.S. at
81718, the Court balanced those competing interests by
establishing a higher threshold for holding public officials
personally liable for constitutional violations. For a public
official to be liable for damages, that official must have
violated a constitutional right, and that right must have been
``clearly established'' -- `` t he contours of the right must be
7
sufficiently clear that a reasonable official would understand
what he is doing violates that right.'' Anderson, 483 U.S. at
640; see id. at 638 (``qualified immunity protects `all but the
plainly incompetent or those who knowingly violate the law' '')
(quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).
A court performing a qualified immunity inquiry ``must first
determine whether the plaintiff has alleged the deprivation of
an actual constitutional right.'' Wilson v. Layne, 526 U.S.
603, 609 (1999) (quotation omitted). If the court establishes
the violation of a constitutional right, it must then ``proceed to
determine whether that right was clearly established at the
time of the alleged violations.'' Id. (quotation omitted). The
Supreme Court has instructed that deciding whether a consti-
tutional right was violated first, rather than asking whether
the right was clearly established, ``promotes clarity in the
legal standards for official conduct, to the benefit of both the
officers and the general public.'' Id.
The validity of the qualified immunity analysis ``depends
substantially upon the level of generality at which the rele-
vant `legal rule' is to be identified.'' Anderson, 483 U.S. at
639. At the first stage of the inquiry, ``courts must not define
the relevant constitutional right in overly general terms, lest
they strip the qualified immunity defense of all meaning.''
Butera v. District of Columbia, 235 F.3d 637, 646 (D.C. Cir.
2001). It does no good to allege that police officers violated
the right to free speech, and then conclude that the right to
free speech has been ``clearly established'' in this country
since 1791. Instead, courts must ``define the right to a
degree that would allow officials `reasonably to anticipate
when their conduct may give rise to liability for dam-
ages'TTTT'' Id. (quoting Anderson, 483 U.S. at 639) (altera-
tion in Butera).
The district court ruled that the MPD supervisors were not
entitled to qualified immunity on plaintiffs' inaction theory
because plaintiffs had alleged that ``it was `highly likely,' given
the circumstances at the Navy Memorial on January 20, 2001,
that the MPD officers would violate citizens' constitutional
rights.'' Mem. op. at 9. This theory of liability was taken
8
from Haynesworth, 820 F.2d at 1261 (``The duty to supervise
is triggered by proof that, absent effective supervision, harm
was not merely foreseeable, but was highly likely, given the
circumstances of the case.''); see also id. at 1262 (to hold the
supervisors liable, plaintiff must show ``that a duty to instruct
the subordinate to prevent constitutional harm arose from the
surrounding circumstances''). But applying a basis for liabili-
ty at such a level of generality -- a duty dependent upon ``the
circumstances of the case'' or arising ``from the surrounding
circumstances'' -- is not faithful to the teaching of the
Supreme Court in Anderson or this court in Butera. Defin-
ing the duty at issue in Haynesworth at a more ``appropriate
level of specificity,'' Butera, 235 F.3d at 646 (quoting Wilson,
526 U.S. at 615) -- one that ``would allow officials `reasonably
to anticipate when their conduct may give rise to liability for
damages,' '' id. (quoting Anderson, 483 U.S. at 639) (alteration
in Butera) -- makes clear that the plaintiffs here have not
stated a claim against the MPD supervisors for inaction.
The alleged violation in Haynesworth was the pursuit of
criminal prosecution in retaliation for the filing of civil com-
plaints against the police. The plaintiffs sought to hold the
police chief liable because there was ``a past practice of
retaliatory prosecutions,'' of which the chief ``was or should
have been aware,'' and the chief ``failed to supervise or
instruct his officers in order to guard against further out-
breaks of retaliation.'' Haynesworth, 820 F.2d at 1263 (em-
phasis added). Given the notorious existence of the past
practice, it was ``highly likely'' that retaliatory prosecution
would continue, giving rise to ``a duty to instruct TTT to
prevent constitutional harm.'' Id. at 126162. That is what
Haynesworth meant when it spoke of ``circumstances'' giving
rise to a duty to act. Id.
Defining the duty at issue in Haynesworth at this greater
level of specificity is not meant to suggest that the duty is
somehow limited to retaliatory prosecution, and does not
embrace other constitutional torts. It instead highlights the
fact that the ``circumstances'' giving rise to the duty to act
were grounded in particular past transgressions highly likely
to continue in the absence of supervisory action. That under-
9
standing is reinforced by the Haynesworth court's repeated
reliance on Rizzo v. Goode, 423 U.S. 362 (1976). See 820 F.2d
at 1262 (``We hold today that the close analogy to Rizzo
requires us to constrict the ambit of supervisory liability for
constitutional wrongs.''). As we explained in Haynesworth,
the Supreme Court in Rizzo
noted that supervisory liability under Section 1983 had
important limitations: it required an ``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 author-
ization or approval of such misconduct.'' Rejecting the
``amorphous proposition '' that the officials implicated
shared a ``constitutional `duty' TTT to `eliminate' future
police misconduct,'' the Court saw no foundation for the
asserted liability absent a ``showing of direct responsibili-
ty'' by the supervising official for the infringement.
820 F.2d at 1260 (quoting Rizzo, 423 U.S. at 371, 376;
footnotes omitted) (alteration and ellipsis in Haynesworth).
The MPD supervisors do not seek a ruling on whether they
enjoy qualified immunity from a supervisory inaction claim
based on past transgressions under Haynesworth. Although
it is not clear whether plaintiffs even seek to bring such a
claim,1 it is clear that the supervisors have taken any question
1 The complaint does contain allegations that it is the ``policy
and/or custom of the TTT District of Columbia to disrupt first
amendment protected activities,'' Additions to Second Am. Compl.
at 6, but that allegation appears directed more to establishing the
liability of the District under Monell v. New York City Dep't of Soc.
Servs., 436 U.S. 658 (1978), and these ``defendants are not causally
linked to it.'' Rizzo, 423 U.S. at 375. Plaintiffs do not allege that
these supervisors knew or should have known of such a practice, so
there is no basis for any allegation that the supervisors had a duty
to supervise or instruct subordinates ``to guard against further
outbreaks'' of such misconduct. Plaintiffs' more general assertions
that mass demonstrations create circumstances leading to confron-
tation resulting in violations of rights are far too abstract to
establish the sort of ``affirmative link'' or ``direct responsibility'' on
10
of immunity from such a claim off the table on this appeal.
At oral argument, counsel for the supervisors acknowledged
that ``there is a point at which past acts may require that
supervisors take action,'' and stated that immunity from such
a claim was not being appealed. Oral Argument at 22:53
23:02. What was being appealed, counsel explained, was any
effort to base liability on
a duty to actively supervise and to train without regard
to anything, any other aspect, or any prior history. That
merely because these four individuals are supervisors,
they had an obligation to anticipate that constitutional
torts were highly likely and to take steps to prevent
them regardless of any other facts in the case.
Id. at 26:1326:44.
Plaintiffs do wish to pursue such a theory of liability. At
oral argument, they argued that the duty to supervise arose
generally from the potential for constitutional violations, even
absent proof that the MPD supervisors had knowledge of a
pre-existing pattern of violations by either Cumba or Worrell.
Plaintiffs contend that the general duty to supervise ``arises
in the ordinary course of taking responsibility where the
police intervene in the context of mass demonstration activi-
ty,'' Appellees' Br. at 22, because of the ``substantial risk'' of
constitutional violations, id. at 17. Plaintiffs also contend that
`` t he duty to supervise does not require proof of a pre-
existing pattern of violations.'' Id. at 12, 16. Such a theory
represents a significant expansion of Haynesworth -- one we
are unwilling to adopt.
The broad wording of the district court opinion, and its
failure to focus on what ``circumstances'' gave rise to a duty
on the part of the supervisors to act, pose the prospect that a
claim of the sort described by plaintiffs' counsel could pro-
ceed. The district court, in denying qualified immunity on
the inaction claim, simply noted that ``it is undisputed that the
MPD Supervisors were overseeing the activities of many
the part of these supervisors that Haynesworth held was a neces-
sary prerequisite to liability. 820 F.2d at 1260.
11
uniformed and plain-clothes MPD officers present at the
Navy Memorial for crowd control purposes during the Inau-
gural Parade and that those officers included TTT Cumba and
Worrell,'' and that plaintiffs ``allege that in this context, there
could be a substantial risk of violating protestors' free speech
or Fourth Amendment rights.'' Mem. op. at 10. Without
focusing on which allegations sufficed to give rise to a claim
for supervisory inaction, the court concluded that immunity
was not available because plaintiffs ``have sufficiently alleged
a set of circumstances at the Navy Memorial on January 20,
2001, which did indeed make it `highly likely' that MPD
officers would violate citizens' constitutional rights.'' Id. at
11.
The district court's analysis failed to link the likelihood of
particular constitutional violations to any past transgressions,
and failed to link these particular supervisors to those past
practices or any familiarity with them. In the absence of any
such ``affirmative links,'' the supervisors cannot be shown to
have the requisite ``direct responsibility'' or to have given
``their authorization or approval of such misconduct,'' Rizzo,
423 U.S. at 371, 376, and the effort to hold them personally
liable fades into respondeat superior or vicarious liability,
clearly barred under Section 1983. See City of Canton v.
Harris, 489 U.S. 378, 387 (1989); Monell v. New York City
Dep't of Soc. Servs., 436 U.S. 658, 691 (1978); accord Evett v.
DETNTFF, 330 F.3d 681, 689 (5th Cir. 2003) (``Section 1983
does not create vicarious or respondeat superior liability.'');
Gossmeyer v. McDonald, 128 F.3d 481, 495 (7th Cir. 1997)
(``respondeat superior cannot be used to impose Section
1983 liability on a supervisor for the conduct of a subordinate
violating a plaintiff's constitutional rights''); Shaw v. Stroud,
13 F.3d 791, 798 (4th Cir. 1994).
This court in Haynesworth stated that some courts ``have
also concluded that a duty to supervise may arise, even
absent a pattern of past transgressions.'' 820 F.2d at 1261.
In such a case, however, the duty could only exist ``where
training has been so clearly deficient that some deprivation of
rights will inevitably result absent additional instruction.''
Id. at 126162 (emphasis added). Plaintiffs here made no
12
allegations that the individual appellants bore any responsibil-
ity for the general training of Cumba or Worrell at all, or
were in any sense on notice that such training had been so
deficient that constitutional violations would ``inevitably re-
sult.''
The question thus reduces to the personal liability of these
four individuals for alleged inadequate training and supervi-
sion of Cumba and Worrell -- in the absence of any claim
that these supervisors were responsible for the training re-
ceived by Cumba and Worrell, or were aware of any demon-
strated deficiencies in that training. That leaves inaction
liability for supervision, apart from ``active participation'' (de-
fined to include failure to intervene upon allegedly becoming
aware of the tortious conduct) and apart from any duty to act
arising from past transgressions highly likely to continue in
the absence of supervisory action. Keeping in mind that
there can be no respondeat superior liability under Section
1983, what is left is plaintiffs' theory that the supervisors'
duty to act here arose simply because of ``the context of mass
demonstration activity.'' Appellees' Br. at 17, 22. ``We have
never subscribed to such an amorphous proposition , and
we decline to do so now.'' Rizzo, 423 U.S. at 376.
We accordingly reject plaintiffs' theory of liability for gen-
eral inaction, mindful not only of the hazards of reducing the
standard for pleading the deprivation of a constitutional right
in the qualified immunity context, but also of the degree of
fault necessary to implicate supervisory liability under Sec-
tion 1983. `` W here responsibility is predicated on inatten-
tiveness rather than affirmative misconduct, the plaintiff must
establish a high degree of fault in order to implicate the
supervisor in the constitutional infractions of his subor-
dinates.'' Haynesworth, 820 F.2d at 1261. That high degree
of fault is not satisfied by a negligence standard; a showing
of ``mere negligence'' is insufficient to state a claim of supervi-
sory liability under Section 1983. Id. at 1260; Rascon v.
Hardiman, 803 F.2d 269, 273 (7th Cir. 1986); see also David-
son v. Cannon, 474 U.S. 344, 348 (1986) (holding ``the protec-
tions of the Due Process Clause TTT are just not triggered by
lack of due care by supervisors ''); Daniels v. Williams, 474
13
U.S. 327, 335 (1986) (same). Given ``the difficulty of providing
meaningful guidance to ward off all possible wrongs,'' ``impo-
sition of a duty of care to prevent all foreseeable misconduct
by subordinates would thrust an excessive burden on supervi-
sors and hamper performance of official duties.'' Haynes-
worth, 820 F.2d at 1261. A supervisor who merely fails to
detect and prevent a subordinate's misconduct, therefore,
cannot be liable for that misconduct. ``The supervisor must
know about the conduct and facilitate it, approve it, condone
it, or turn a blind eye for fear of what they might see.''
Jones v. City of Chicago, 856 F.2d 985, 992 (7th Cir. 1988)
(Posner, J.).
We conclude that plaintiffs' inaction theory fails to provide
an adequate basis for establishing the violation of a constitu-
tional right by these appellants. We hold that absent an
allegation that the MPD supervisors had actual or construc-
tive knowledge of past transgressions or that the supervisors
were responsible for or aware of ``clearly deficient'' training,
the supervisors did not violate any constitutional right
through inaction or failure to supervise. Having found no
constitutional violation on the only theory before us, ``there is
no necessity for further inquiries concerning qualified immu-
nity.'' Saucier, 533 U.S. at 201.
* * *
We reverse the denial of summary judgment on qualified
immunity grounds for the inaction theory of liability, and
remand to the district court for further proceedings consis-
tent with this opinion.
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