California Civil Jury Instructions (CACI) (2017)

3005. Affirmative Defense - Consent to Search

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3005.Supervisor Liability for Acts of Subordinates (42 U.S.C.
§ 1983)
[Name of plaintiff] claims that [name of supervisor defendant] is personally
liable for [his/her] harm. In order to establish this claim, [name of
plaintiff] must prove all of the following:
1. That [name of supervisor defendant] knew, or in the exercise of
reasonable diligence should have known, of [name of subordinate
employee defendant]’s wrongful conduct;
2. That [name of supervisor defendant] knew that the wrongful
conduct created a substantial risk of harm to [name of plaintiff];
3. That [name of supervisor defendant] disregarded that risk by
[expressly approving/impliedly approving/ [or] failing to take
adequate action to prevent] the wrongful conduct; and
4. That [name of supervisor defendant]’s conduct was a substantial
factor in causing [name of plaintiff]’s harm.
New April 2007; Renumbered from CACI No. 3013 December 2010; Revised
December 2011; Renumbered from CACI No. 3017 December 2012; Revised June
Directions for Use
Read this instruction in cases in which a supervisor is alleged to be personally
liable for the violation of the plaintiff’s civil rights under Title 42 United States
Code section 1983.
For certain constitutional violations, deliberate indifference based on knowledge
and acquiescence is insufficient to establish the supervisor’s liability. The supervisor
must act with the purpose necessary to establish the underlying violation. (Ashcroft
v. Iqbal (2009) 556 U.S. 662, 676–677 [129 S.Ct. 1937, 173 L.Ed.2d 868] [for
claim of invidious discrimination in violation of the First and Fifth Amendments,
plaintiff must plead and prove that defendant acted with discriminatory purpose].)
In such a case, element 3 requires not only express approval, but also
discriminatory purpose. The United States Supreme Court has found constitutional
torts to require specific intent in three situations: (1) due process claims for injuries
caused by a high-speed chase (See Cnty. of Sacramento v. Lewis (1998) 523 U.S.
833, 836 [118 S.Ct. 1708, 140 L.Ed.2d 1043].); (2) Eighth Amendment claims for
injuries suffered during the response to a prison disturbance (See Whitley v. Albers
(1986) 475 U.S. 312, 320–321 [106 S.Ct. 1078, 89 L.Ed.2d 251].); and (3)
invidious discrimination under the equal protection clause and the First Amendment
free exercise clause. (See Ashcroft v. Iqbal,supra, 556 U.S. at pp. 676–677.)
The Ninth Circuit has held that deliberate indifference based on knowledge and
acquiescence is still sufficient to support supervisor liability if the underlying
constitutional violation does not require purposeful discrimination. (OSU Student
Alliance v. Ray (9th Cir. 2012) 699 F.3d 1053, 1070–1075 [knowing acquiescence
is sufficient to establish supervisor liability for free-speech violations because intent
to discriminate is not required]; see also Starr v. Baca (9th Cir. 2011) 652 F.3d
1202, 1207 [same for 8th Amendment violation for cruel and unusual punishment].)
Sources and Authority
• “A ‘supervisory official may be held liable in certain circumstances for the
constitutional injuries inflicted by their subordinates. . . . [T]hat liability is not
premised upon respondeat superior but upon “a recognition that supervisory
indifference or tacit authorization of subordinates’ misconduct may be a
causative factor in the constitutional injuries they inflict.” ’ ” (Weaver v. State of
California (1998) 63 Cal.App.4th 188, 209 [73 Cal.Rptr.2d 571], internal
citations omitted.)
• “[W]hen a supervisor is found liable based on deliberate indifference, the
supervisor is being held liable for his or her own culpable action or inaction,
not held vicariously liable for the culpable action or inaction of his or her
subordinates.” (Starr,supra, 652 F.3d at p. 1207.)
• “[A] plaintiff may state a claim against a supervisor for deliberate indifference
based upon the supervisor’s knowledge of and acquiescence in unconstitutional
conduct by his or her subordinates.” (Starr, supra, 652 F.3d at p. 1207.)
• “To establish supervisory liability under section 1983, [plaintiff] was required to
prove: (1) the supervisor had actual or constructive knowledge of [defendant’s]
wrongful conduct; (2) the supervisor’s response ‘“ was so inadequate as to show
‘deliberate indifference to or tacit authorization of the alleged offensive
practices’ ” ’; and (3) the existence of an ‘affirmative causal link’ between the
supervisor’s inaction and [plaintiff’s] injuries.” (Grassilli v. Barr (2006) 142
Cal.App.4th 1260, 1279–1280 [48 Cal.Rptr.3d 715], internal citations omitted.)
• “A supervisor is liable under § 1983 for a subordinate’s constitutional violations
‘if the supervisor participated in or directed the violations, or knew of the
violations and failed to act to prevent them.’ [Defendants] testified that they
were mere observers who stayed at the end of the [plaintiffs’] driveway. But
based on the [plaintiffs’] version of the facts, which we must accept as true in
this appeal, we draw the inference that [defendants] tacitly endorsed the other
Sheriff’s officers’ actions by failing to intervene. . . . On this appeal we do not
weigh the evidence to determine whether [defendants’] stated reasons for not
intervening are plausible.” (Maxwell v. County of San Diego (9th Cir. 2013) 708
F.3d 1075, 1086, internal citation omitted.)
• “We have found supervisorial liability under § 1983 where the supervisor ‘was
personally involved in the constitutional deprivation or a sufficient causal
connection exists between the supervisor’s unlawful conduct and the
constitutional violation.’ Thus, supervisors ‘can be held liable for: 1) their own
culpable action or inaction in the training, supervision, or control of
subordinates; 2) their acquiescence in the constitutional deprivation of which a
complaint is made; or 3) for conduct that showed a reckless or callous
indifference to the rights of others.’ ” (Edgerly v. City & County of San
Francisco (9th Cir. 2010) 599 F.3d 946, 961, internal citations omitted.)
• “ ‘[A] plaintiff must show the supervisor breached a duty to plaintiff which was
the proximate cause of the injury. The law clearly allows actions against
supervisors under section 1983 as long as a sufficient causal connection is
present and the plaintiff was deprived under color of law of a federally secured
right.’ ” (Starr, supra, 652 F.3d at p. 1207, internal citation omitted.)
• “Respondent . . . argues that, under a theory of ‘supervisory liability,’
petitioners can be liable for ‘knowledge and acquiescence in their subordinates’
use of discriminatory criteria to make classification decisions among detainees.’
That is to say, respondent believes a supervisor’s mere knowledge of his
subordinate’s discriminatory purpose amounts to the supervisor’s violating the
Constitution. We reject this argument. Respondent’s conception of ‘supervisory
liability’ is inconsistent with his accurate stipulation that petitioners may not be
held accountable for the misdeeds of their agents. In a § 1983 suit or a Bivens
action—where masters do not answer for the torts of their servants—the term
‘supervisory liability’ is a misnomer. Absent vicarious liability, each
Government official, his or her title notwithstanding, is only liable for his or her
own misconduct. In the context of determining whether there is a violation of a
clearly established right to overcome qualified immunity, purpose rather than
knowledge is required to impose Bivens liability on the subordinate for
unconstitutional discrimination; the same holds true for an official charged with
violations arising from his or her superintendent responsibilities.” (Ashcroft v.
Iqbal,supra, 556 U.S. at p. 677, internal citations omitted.)
• “The factors necessary to establish a Bivens violation will vary with the
constitutional provision at issue. Where the claim is invidious discrimination in
contravention of the First and Fifth Amendments, our decisions make clear that
the plaintiff must plead and prove that the defendant acted with discriminatory
purpose. Under extant precedent purposeful discrimination requires more than
‘intent as volition or intent as awareness of consequences.’ It instead involves a
decisionmaker’s undertaking a course of action “because of,” not merely “in
spite of,” [the action’s] adverse effects upon an identifiable group.’ ” (Ashcroft v.
Iqbal, supra, 556 U.S. at pp. 676–677, internal citations omitted.)
• “Iqbal . . . holds that a plaintiff does not state invidious racial discrimination
claims against supervisory defendants by pleading that the supervisors
knowingly acquiesced in discrimination perpetrated by subordinates, but this
holding was based on the elements of invidious discrimination in particular, not
on some blanket requirement that applies equally to all constitutional tort
claims. Iqbal makes crystal clear that constitutional tort claims against
supervisory defendants turn on the requirements of the particular claim—and,
more specifically, on the state of mind required by the particular claim—not on
a generally applicable concept of supervisory liability. ‘The factors necessary to
establish a Bivens violation will vary with the constitutional provision at issue.’
Allegations that the [defendants] knowingly acquiesced in their subordinates’
discrimination did not suffice to state invidious racial discrimination claims
against them, because such claims require specific intent—something that
knowing acquiescence does not establish. On the other hand, because Eighth
Amendment claims for cruel and unusual punishment generally require only
deliberate indifference (not specific intent), a Sheriff is liable for prisoner abuse
perpetrated by his subordinates if he knowingly turns a blind eye to the abuse.
The Sheriff need not act with the purpose that the prisoner be abused. Put
simply, constitutional tort liability after Iqbal depends primarily on the requisite
mental state for the violation alleged.” (OSU Student Alliance, supra, 699 F.3d
at p. 1071, internal citations omitted.)
• “ ‘[S]upervisory liability exists even without overt personal participation in the
offensive act if supervisory officials implement a policy so deficient that the
policy “itself is a repudiation of constitutional rights” and is the “moving force
of a constitutional violation.” ’ ” (Crowley v. Bannister (9th Cir. 2013) 734 F.3d
967, 977.)
• “When a supervisory official advances or manages a policy that instructs its
adherents to violate constitutional rights, then the official specifically intends for
such violations to occur. Claims against such supervisory officials, therefore, do
not fail on the state of mind requirement, be it intent, knowledge, or deliberate
indifference. Iqbal itself supports this holding. There, the Court rejected the
invidious discrimination claims against [supervisory defendants] because the
complaint failed to show that those defendants advanced a policy of purposeful
discrimination (as opposed to a policy geared simply toward detaining
individuals with a ‘suspected link to the [terrorist] attacks’), not because it
found that the complaint had to allege that the supervisors intended to
discriminate against [plaintiff] in particular. Advancing a policy that requires
subordinates to commit constitutional violations is always enough for § 1983
liability, no matter what the required mental state, so long as the policy
proximately causes the harm—that is, so long as the plaintiff’s constitutional
injury in fact occurs pursuant to the policy.” (OSU Student Alliance, supra, 699
F.3d at p. 1076.)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, § 347
8Witkin, Summary of California Law (10th ed. 2005) Constitutional Law, § 8
2 Civil Rights Actions, Ch. 7, Deprivation of Rights Under Color of State
Law—General Principles, ¶ 7.10 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 113, Civil Rights: The Post-Civil
War Civil Rights Statutes, § 113.14 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, § 115.20[4] (Matthew Bender)
3006–3019. Reserved for Future Use