Appeal from the United States District Court for the District of Columbia (No. 01cv00072)
Before: Edwards, Garland, and Roberts, Circuit Judges.
The opinion of the court was delivered by: Roberts, Circuit Judge
Plaintiffs seek to hold police supervisors 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.
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 Inaugural Committee, and six individual MPD officers, complaining about law enforcement activities during the 2001 Presidential Inaugural Parade. Plaintiffs are the International Action Center (IAC), described in the complaint as "an unincorporated political association opposed to racism, sexism, oppression of lesbians, gays, bisexuals and transgendered 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 "organizers" for JAM; and several individuals alleged to have been present at the 2001 Presidential Inaugural Parade, including Elizabeth Ayer and Lowell T. Fletcher. First Am. Compl. at 4-5; 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] ... 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 2-4. 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 money 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 commanded the MPD Intelligence Detail "responsible for monitoring events throughout the areas surrounding ... the parade route," Aff. of Robin Hoey at 1, and three MPD lieutenants -- Lorraine Kittrell, Cheryl Pendergast, and Robert Atcheson -- each of whom had supervisory responsibilities for the various Intelligence Teams comprising the Intelligence 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 unlawful and unconstitutional conduct" of Cumba and Worrell, Additions to Second Am. Compl. ¶ 19, and (2) plaintiffs' "deliberate indifference, or ... non-feasance" theory, Appellees' Br. at 8, based on the claim that the supervisors "failed to exercise appropriate command authority relating to the unlawful and unconstitutional conduct of" Cumba and Worrell, 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' theory of affirmative participation, the court noted that the supervisors 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 supervisors'] affirmative participation in the MPD actions at the Memorial." Mem. op. at 8. As for plaintiffs' theory predicated on the supervisors' inaction rather than affirmative misconduct, 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 ... 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)).
The MPD supervisors filed this interlocutory appeal, challenging 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 participation 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 jurisdiction to hear this appeal.
This court has jurisdiction over appeals from "final decisions of the district court[ ]." 28 U.S.C. § 1291. "A denial of summary judgment is ordinarily not `final,' because it simply 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 appeal. In Behrens v. Pelletier, 516 U.S. 299, 312 (1996), the Supreme Court explained that "[t]he Harlow right to immunity 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 ...