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Supreme Court Holds Supervisory Officials Not Liable for Abuse of 9-11 Detainees

by Matt Clarke

On June 14, 2007, the Second Circuit Court of Appeals affirmed in part and reversed in part a district court’s denial of the government’s motion to dismiss a lawsuit alleging abuse of pre-trial detainees at the Brooklyn Metropolitan Detention Center (MDC) following the September 11, 2001 attacks. However, the Supreme Court reversed that ruling on May 18, 2009, and remanded the case for further proceedings.

Javaid Iqbal, a Pakistani national, was detained in a roundup of foreign Muslim males in the New York area shortly af-ter 9/11. He had false identity papers and was arrested and placed in MDC. There, he alleged, solely due to his religion and national origin, he was held in a newly-created Administrative Segregation Maximum Security Special Housing Unit (ADMAX SHU), which was created for prisoners “of high interest.”

According to Iqbal, to be designated “high interest” a detainee merely had to be a Muslim male of Arab, North African or West Asian origin. Conditions in ADMAX SHU were much harsher than those in the MDC’s general population, or in the “normal” SHU. Prisoners were only released from ADMAX SHU after the FBI cleared them of any ties to terrorist groups. For Iqbal, this process took from January 8, 2002 until the end of July 2002.

While in ADMAX SHU, Iqbal claimed he was severely abused both physically and verbally; subjected to repetitive, unnecessary and abusive strip and body cavity searches; kept in solitary confinement with no review of his classification status; subjected to interference with the exercise of his religious beliefs; denied adequate food, exercise, basic medical care, bedding and personal hygiene items; deliberately exposed to excessive heat, excessive cold and continuous bright lighting; only allowed out his cell one hour a day, in handcuffs and shackles; and prevented from having confidential, di-rect and rapid communication with his attorney.

Iqbal alleged severe physical injuries from brutal beatings as well as emotional distress and humiliation. He also claimed that his mistreatment was a direct result of discriminatory policies promulgated by high-level officials in the federal government, which caused him to be classified as a “high interest” prisoner based solely upon his race, religion and na-tional origin. Iqbal pleaded guilty to having false identity papers, served his prison sentence, and was deported to Paki-stan. He then brought a Bivens action against federal officials.

The government defendants filed a motion to dismiss, claiming inadequate factual pleading and a defense of qualified immunity. The district court denied the motion except with regard to claims brought under the Religious Freedom Restora-tion Act and the Alien Tort Statute. See: Elmaghraby v. Ashcroft, U.S.D.C. (E.D. NY), Case No. 04-cv-1409; 2005 U.S. Dist. LEXIS 21434 (Sept. 27, 2005).

The defendants appealed the district court’s ruling, and the government arranged a $300,000 settlement with Iqbal’s co-plaintiff, Ehab Elmaghraby, an Egyptian national who was too ill to return to the U.S. for trial. [See: PLN, Sept. 2006, p.30].

The defendants’ main issues on appeal were that Iqbal had not pleaded sufficient facts showing the involvement of high-level government officials such as former U.S. Attorney General John Ashcroft and FBI Director Robert Mueller, and that the emergency situation following the 9/11 attacks presented “exigent circumstances” for which there was no settled law, thereby entitling the defendants to qualified immunity.

The Second Circuit engaged in a lengthy analysis of Supreme Court decisions regarding a heightened pleading stan-dard. The appellate court concluded that such a standard could not be required in a civil rights suit. The Court of Appeals observed that district courts may need to permit “some limited and tightly controlled reciprocal discovery so that a defen-dant may probe for amplification of a plaintiff’s claims and a plaintiff may probe such matters as a defendant’s knowledge of relevant facts and personal involvement in challenged conduct” before ruling on the issue of qualified immunity.

The Second Circuit held that “exigent circumstances” or “special factors” following the 9/11 attacks might excuse the inadvertent search and/or arrest of the wrong individuals. However, they could not excuse the violation of clearly-established constitutional rights of a pre-trial detainee once the detainee was in custody.

The Second Circuit held that “officials of reasonable competence could have disagreed” about whether some proce-dural due process beyond waiting for the FBI to clear Iqbal was required to keep him in ADMAX SHU. Therefore, the de-fendants were entitled to qualified immunity on that issue. However, the law was clearly established in 2002 as to the claims related to conditions of confinement, excessive use of force, unreasonable searches, and racial and religious dis-crimination.

Furthermore, it was plausible at the current stage of the pleadings that high-level government officials were directly involved in enacting the policies that led to Iqbal’s mistreatment. This could be pursued under 42 U.S.C. § 1985(3) as a claim alleging conspiracy.

The order of the district court denying the defendants’ motion to dismiss was therefore affirmed as to all issues except procedural due process. Iqbal was represented by attorneys Alexander A. Reinert, Keith M. Donoghue, Elizabeth L. Koob, Joan Magoolaghan, Haeyoung Yoon, Mamoni Bhattacharyya and David Ball, all of New York. See: Iqbal v. Hasty, 490 F.3d 143 (2nd Cir. 2007).

Subsequently, however, the U.S. Supreme Court granted certiorari to review the appellate court’s ruling. In an opinion issued May 18, 2009, the Court first held that the Second Circuit had jurisdiction to hear an interlocutory appeal on the issues raised by the defendants. The Court also assumed, without deciding, that a First Amendment claim was actionable in a Bivens action.

Because vicarious liability does not apply in Bivens and § 1983 cases, the plaintiff must plead that each government defendant, through his individual actions, has violated the Constitution. The Court held that Iqbal had not presented suffi-cient facts to subject the high-level government defendants to supervisory liability.

Further, under Federal Rule of Civil Procedure 8(a)(2), a complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” The Supreme Court applied its recent ruling in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955 (2007), and determined that Iqbal had failed to plead sufficient facts to state a claim for purposeful discrimination.

Purposeful discrimination requires more than “intent as volition or intent as awareness of consequences”; rather, it in-volves a decisionmaker taking a course of action “‘because of,’ not merely ‘in spite of,’ the action’s adverse effects upon an identifiable group.”

The Court held that Iqbal’s allegations that the defendants “had agreed to subject him to harsh conditions as a matter of policy, solely on account of discriminatory factors and for no legitimate penological interest; that Ashcroft was that pol-icy’s ‘principal architect’; and that Mueller was ‘instrumental’ in its adoption and execution” were conclusory and “not enti-tled to be assumed true.”

“It should come as no surprise that a legitimate policy directing law enforcement to arrest and detain individuals be-cause of their suspected link to the [9/11] attacks would produce a disparate, incidental impact on Arab Muslims, even though the purpose of the policy was to target neither Arabs nor Muslims,” the Supreme Court stated.

The Court concluded that Iqbal’s complaint did not contain facts (as opposed to mere conclusory allegations) that in-dicated the government defendants had intentionally adopted a discriminatory policy of classifying post 9/11 MDC detain-ees as “high interest.” The case was remanded to the Second Circuit to “decide in the first instance whether to remand to the District Court to allow Iqbal to seek leave to amend his deficient complaint.” See: Ashcroft v. Iqbal, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

Justice Souter, joined by Justices Stevens, Ginsburg and Breyer, dissented from “the rejection of supervisory liability as a cognizable claim ... and from the holding that the complaint fails to satisfy Rule 8(a)(2) of the Federal Rules of Civil Procedure.” The dissenting justices noted that the issue related to supervisory liability had not been briefed for the Court, resulting in a risk of error that was “palpable.” Apparently, however, that risk was acceptable for the justices who issued the majority ruling.

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Related legal cases

Ashcroft v. Iqbal

Iqbal v. Hasty

Elmaghraby v. Ashcroft