On April 7, 2022, the Eleventh Circuit Court of Appeals decided Ingram v. Kubik[i], which is instructive regarding excessive force and supervisor liability. This is Part Two of a two part series. This article will discuss the law related to supervisor liability. The relevant facts of Ingram are as follows:
Ingram is an Iraq War veteran who suffers from post-traumatic stress disorder. In October 2017, while suffering from a mental-health crisis, Ingram cut his wrist with a knife at his home. His girlfriend called the Veterans Affairs suicide hotline, which contacted law enforcement. Deputy Louis Kubik and another deputy from Madison County, Alabama, were dispatched to assist Ingram.
When the deputies arrived, Ingram was calm.The deputies searched him multiple times. They confiscated the knife with which Ingram had cut himself. After the search, the deputies knew that he was unarmed.
“Ingram assured the deputies [that] he was no longer suicidal” and “never expressed any desire to harm himself or any other person during his encounter with the deputies.” He “insisted that the deputies either arrest him or leave.” Both the deputies and Ingram’s mother “tried to convince Ingram to let them take him to a residential program through . . . [Veterans Affairs] that Ingram’s mother wanted him to attend.” When Ingram asked the deputies if he was under arrest, the “deputies told [him] . . . that he was not.” Ingram reiterated “that he would cooperate with any arrest if that [was] what they wanted to do.”
Because the deputies would not leave, Ingram left through the back door “on his third try.” “Ingram ran into a cotton field behind the house, and the deputies followed.” Ingram eventually stopped running and “let the deputies catch up to him.” “The deputies told Ingram that if he would go back to his house and refuse medical treatment,” the deputies would leave. “Ingram agreed to walk back to the house . . . and speakdirectly with [medical] personnel.” As they walked back, Ingram stated “multiple times that if he was being arrested, the[ deputies] should . . . let him know and he would go voluntarily,” but “[t]he deputies repeatedly told Ingram he was not under arrest.”
When they reached the yard, “Ingram held his hands over his head and told [medical] personnel . . . that he was refusing medical treatment.” The deputies knew that Ingram was unarmed and posed no threat to them. “Without warning, [Deputy] Kubik then grabbed Ingram under his armpits, picked Ingram up, and slammed Ingram to the ground head first, causing Ingram to suffer a serious neck injury.” Ingram alleges that Kubik’s decision to body slam “Ingram was motivated by hostility toward Ingram due to Ingram’s mental illness.” Ingram was taken to the hospital. “A surgeon removed Ingram’s C-2 vertebra and replaced it with a metal rod. The surgeon also fused Ingram’s C-3 and C-4 vertebrae.”
“Despite widespread knowledge of th[is] incident up the chain of command” that included then-Sheriff Blake Dorning, “the incident was not . . . investigated, and the deputy was not disciplined.” Failure to investigate excessive force incidents “ha[d] been Dorning’s standard operating procedure”; “[e]ven obviously-unconstitutional . . . actions of his deputies [were] immune from investigation and discipline.” Ingram’s lawyer learned from discovery in other lawsuits “that formal internal investigations of officer misconduct were not conducted,” and after he requested “records of internal investigations of deputy misconduct,” he was “told no such records existed.” During Dorning’s tenure, the Sheriff’s website “identified no person or division to contact with a complaint [against] a deputy.”
The complaint provides examples of excessive force that were allegedly not investigated. In one “well-publicized revenge beating,” “Dorning refused to investigate and discipline the deputies involved,” despite being “fully informed” of the incident, “including the revenge beating and cover-up.” “Dorning learned that numerous deputies of various ranks were involved in the beating or its planning, in the cover-up, or in both.” Despite that knowledge, and even though a policy and procedure manual required him to investigate, “Dorning took no action against any of the involved deputies” and “did not . . . initiate an internal affairs investigation.” Dorning similarly“refused to investigate serious allegations related to [six] deaths at the Madison County Jail.” And Ingram points to five other incidents that were “approved as a matter of routine through the chain of command without any investigation.”
See AlsoTariff Tracker: Tracking the Economic Impact of TariffsRemarks on the Concept of Defects of Consent in Polish and French LawJussie Smollett's conviction in hoax attack overturned by state supreme courtThe Cases Against Trump: A GuideDorning’s inaction was “a matter of routine and de facto policy” of “approv[ing] the force used and never initiat[ing] further investigation.” “Thus, no officer was disciplined, let alone terminated, for excessive force or for otherwise violating a citizen’s constitutional rights during Dorning’s 16-year tenure.” As a result of that policy, “[d]eputies under Dorning’s command learned that their justifications for using force and other unlawful actions would never be questioned and that they could act with impunity.” Ingram alleges that “[t]hrough explicit instruction and long-established custom, Dorning established a custom or policy that incidents of possible, likely, or known misconduct were not investigated, with the foreseeable result that deputies like Kubik believed they could get away with violating Ingram’s rights.” Kubik believed that “he would not have to face any investigation and that he could act with impunity”.[ii]
Ingram filed suit in federal court and alleged that Deputy Kubik violated his Fourth Amendment rights to be free from an unlawful seizure and excessive force, and that former Sheriff Dorning violated his rights by being deliberately indifferent to numerous incidents of excessive force such that his deliberate indifference caused Kubik to use excessive force against him. Kubik and Dorning filed motions for qualified immunity. The district court granted qualified immunity for both Deputy Kubik and Sheriff Dorning. Ingram appealed to the Eleventh Circuit Court of Appeals.
Issue One: Did Ingram state a plausible claim for supervisory liability?
Government officials are entitled to qualified immunity for discretionary acts unless the plaintiff alleges sufficient facts to show (1) that the government official violated the plaintiff’s rights, and (2) the right was clearly established such that any reasonable officer in the same position would have known he was violating the plaintiff’s rights. The law is considered clearly established where there is factually similar case law from the Supreme Court, the Eleventh Circuit Court of Appeals or the highest court in the state to give the officers fair warning that their conduct is unlawful. Additionally, the law can be clearly established if, under the facts of the case, it is plainly obvious to a reasonable officer that he is violating the plaintiff’s rights.
The court of appeals then set out to determine if Sheriff Dorning was entitled to qualified immunity in Ingram’s case. The court of appeals first examined the legal principles related to supervisory liability and stated
Supervisory officials are not vicariously liable under section 1983 for the unconstitutional acts of their subordinates. Hartley v. Parnell, 193 F.3d 1263, 1269 (11th Cir. 1999). Plaintiffs must instead allege that the supervisor, through his own actions, violated the Constitution. Ashcroft v. Iqbal, 556 U.S. 662, 676, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009). Because Ingram does not allege that Dorning was present or involved in the altercation, Dorning is liable under section 1983 only if “there is a causal connection between [his] actions . . . and the alleged constitutional deprivation.”Hartley, 193 F.3d at 1269 (internal quotation marks omitted).
Causation “may be established and supervisory liability imposed where the supervisor’s improper custom or policy results in deliberate indifference to constitutional rights.” Id. (alterations adopted) (internal quotation marks omitted). “A plaintiff can also show that the absence of a policy led to a violation of constitutional rights.” Piazza, 923 F.3d at 957. “Either way, though, to prove that a policy or its absence caused a constitutional harm, a plaintiff must point to multiple incidents, or multiple reports of prior misconduct by a particular employee.” Id. (citation omitted). And allegations of a single incident of unconstitutional conduct cannot state a claim for supervisory liability, even when the conduct involves several subordinates. Id. at 957-58.[iii]
The court of appeals then examined the facts relevant to this issue. It is important to note that, at this stage of the litigation, the court of appeals must assume that the plaintiff’s factual allegations are true and then must determine if those facts state a plausible claim.
Sheriff Dorning argued (1) that the facts presented by Ingram fail to state a plausible claim and (2) even if Ingram does state a plausible claim, that he is entitled to qualified immunity.
In his complaint, Ingram alleged that there was a causal connection between Dorning’s conduct and the excessive force used by Kubik against Ingram. Specifically, the causal connection alleged was that Dorning established a policy of failing to investigate incidents of “possibly, likely, or known misconduct,” and that failure to investigate caused the foreseeable result that deputies such as Kubik believe they could get away with violating Ingram’s rights.
The court then examined the facts alleged in Ingram’s complaint to determine if the facts, if true, establish a plausible claim. Ingram alleged multiple incidents of prior excessive force by deputies that were not investigated by Dorning. First, Ingram alleged there was a “well publicized revenge beating,” which Dorning knew about, but he did not initiate an internal affairs investigation or discipline the deputies involved. Second, Ingram identified five other incidents that were “approved as a matter of routine through the chain of command without any investigation.” The court noted that in one of those incidents, a deputy punched a drunk, misdemeanor arrestee in the face twice, breaking the arrestee’s orbital socket. Ingram also alleged that Dorning received a copy of all use of force reports and “approved of the excessive uses of force without having” them investigated. Third, Ingram alleged that in Dorning’s 16-year tenure as sheriff, no officer was disciplined or terminated for excessive force. Fourth, during that same time, the department’s website “identified no person or division to contact with a complaint against a deputy.” Fifth, the plaintiff’s attorney requested “records of internal investigations of deputy misconduct” and was told “no such records existed” despite a “policy and procedure manual” that requires investigations of complaints of misconduct. Additionally, the incident involving Kubik and Ingram was also not investigated despite Dorning’s knowledge of the incident.
In light of the above reasons, the court of appeals stated
The allegations of “multiple reports of prior misconduct,” Piazza, 923 F.3d at 957, with no investigation by Dorning “allow[] the court to draw the reasonable inference,” Iqbal, 556 U.S. at 678, that there is a causal connection between Dorning’s failure to investigate any allegations of serious misconductand Kubik’s belief that he could act with impunity. The factual allegations, if true, establish the “absence of a policy” of investigating excessive force violations, see Piazza, 923 F.3d at 957, of which Dorning had knowledge, see Rivas v. Freeman, 940 F.2d 1491, 1495-96 (11th Cir. 1991) (“[T]he district court’s findings regarding [the] Sheriff[‘s] . . . failure to establish policies and procedures [were] supported” by “evidence at trial which established that [he] knew of prior instances of [misconduct], but allowed his deputies to [engage in that misconduct].”). And the complaint relies on more than the incident at issue to establish the custom or policy. See, e.g., Piazza, 923 F.3d at 957-58.[iv]
Thus, Ingram stated a plausible claim of supervisory liability, which satisfies the first prong of the test to defeat qualified immunity.
Issue Two: Was the law clearly established such that a reasonable officer in Sheriff Dorning’s position would have known he was violating Ingram’s rights?
The court of appeals then set out to determine if the law was clearly established such that a reasonable officer in Dorning’s position would have known he was violating Ingram’s rights.
The court stated that they have clearly established that a custom of allowing excessive force provides the “requisite fault” to provide an inference that a supervisor has ratified such conduct. Specifically, the court stated
A supervisor can be held liable for implementing or failing to implement a policy that causes his subordinates to believe that they can permissibly violate another’s constitutional rights if the subordinates then do so based on that belief.See Hartley, 193 F.3d at 1269. As we have explained, the complaint adequately alleges that one of Dorning’s subordinates used excessive force and that there is a causal connection between that excessive force and Dorning’s policy of allowing such force. And this Court has clearly established that “a custom of allowing the use of excessive force . . . provides the requisite fault[,] . . . as a persistent failure to take disciplinary action against officers can give rise to the inference that a [supervisor] has ratified conduct.” Fundiller v. City of Cooper City, 777 F.2d 1436, 1443 (11th Cir. 1985). That “allegation would [also] provide the causal link between the challenged conduct and the . . . policy, because [the officer] would have been acting in accordance with the policy of allowing or encouraging excessive force.” Id. This principle applies both to municipalities and supervisors “responsible for disciplining police officers and setting police department policy.” Id. It follows that Ingram’s complaint states a claim that Dorning violated his clearly established constitutional rights.
As such, Ingram satisfied the second prong of the qualified immunity test. Therefore, Sheriff Dorning was not entitled to qualified immunity on the excessive force claim.
Note:Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
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Citations
[i] 30 F.4th 1241 (11th Cir. 2022)
[ii] Id. at 1247-1249
[iii] Id. at 1254 (emphasis added)
[iv] Id. at 1256 (emphasis added)
