Welcome to the National Campaign to Restore Civil Rights Interview series, a regular examination of the court cases that shape and affect our lives.
For the inaugural episode of the National Campaign to Restore Civil Rights interview series, Carey Alexander spoke with Alex Reinert, an Assistant Professor of Law at the Cardozo School of Law, who argued the recent case Ashcroft v. Iqbal before the Supreme Court. The Court's 5-4 decision has several troubling civil rights implications, and made it significantly tougher for citizens to hold government officials responsible for misconduct. Listen in as Professor Reinert explains the full impact of the Court's decision.
ALEXANDER: Javaid Iqbal was an Arab-American cable installer from Long Island who was held by federal officials after 9/11 at the Metropolitan Detention Center in Brooklyn. While detained, he was beaten, subjected to extreme temperatures, placed in solitary confinement, denied medical care, and subjected to daily body cavity searches. He filed suit against Attorney Generals Ashcroft and Mueller for creating the policies that led to his mistreatment. To get a better sense of the case's meaning for the future of civil rights, we spoke with Professor Alex Reinert of Cardozo University, who argued Mr. Iqbal's landmark case before the Supreme Court.
Can you tell us, what is the Iqbal case all about?
REINERT: Sure. The Iqbal case is about...we can think about the Iqbal case on many levels. On one level it's about whether there will be accountability at the highest levels of the federal government for violations of the Constitution after September 11th. That's one way of thinking about it. Another way of thinking about it is about what initial evidence a Plaintiff has to come forward with to proceed with a lawsuit against federal officials for violations of the Constitution. On another level, it's about what standards courts will use to judge whether or not federal officials have violated the constitution. And of course, at its most basic level it's about the experience of Mr. Iqbal, who was a Pakistani immigrant who was held after September 11th and treated as a terrorist, even though there was never any evidence or reason to suspect him of being a terrorist. So it's also obviously about his particular experience.
ALEXANDER: And what exactly happened to Mr. Iqbal while he was in the government's custody?
REINERT: What the lawsuit challenges is his categorization to the government as high interest to the September 11th investigation, and the result of that categorization was that he was held in the most restrictive conditions of confinement that are possible in the federal system of detention, and this meant he was held in solitary confinement for about five months, every time he left his cell he was shackled, both at his arms and at his legs, he was strip-searched every day, he was subjected to constant verbal abuse, he was beaten, he was denied medical care. These were all things that he experienced while he was on this highly-restrictive unit, and some of the things he experienced were the result of policy choices, and some of the things he experienced were the result of the misconduct of individual officers who were supposed to be taking care of him and protecting him.
ALEXANDER: So not exactly the treatment we would expect of the United States government?
REINERT: No, I don't think the treatment anyone would expect of the United States government. And of course, in the background was that, at the time, all he was charged with was -- I don't mean to minimize it, but all he was charged with was using someone else's Social Security Card to work. And not to excuse that, but it's not the kind of crime that normally results in people being treated in this way. In our view it was clearly part of the response to September 11th was to treat Muslims and Arabs and South Asians differently, even though the only...even though on its face the only difference between them and someone else charged with using someone else's Social Security Card was their race, their religion, their national origin, which has never been a legitimate reason to treat people differently as a country.
ALEXANDER: So what were the main issues before the Supreme Court that they considered?
REINERT: The issue that they considered, that the Supreme Court agreed to hear was whether the plaintiff, Mr. Iqbal, had adequately alleged that two defendants in particular, the former Attorney General John Ashcroft and the current director of the FBI Robert Mueller, whether those two defendants violated the Constitution by making certain policies that we alleged affected Mr. Iqbal.
And so, if we think of litigation as proceeding three steps: A plaintiff files a complaint, then there is discovery, in which both sides exchange information, and then there is a trial, if we think about those three steps of ligitation, the case is really about what it takes to get from the first step, the filing of the complaint, to the second step, which is the exchange of information through discovery. And the question was whether or not Mr. Iqbal had alleged enough facts about General Ashcroft and Director Mueller to get discovery against those two individuals.
ALEXANDER: And how did the Court address these issues?
REINERT: The Court found that Mr. Iqbal had not sufficiently alleged a violation of the Constitution by these two defendants. And it's important to sort of understand in general at this procedural stage what courts do: They take a plaintiff's complaint and they look at all the facts in the complaint and they assume that all those facts are true. They don't know if they are true, but they assume that they are true even if they think that it might be hard to prove those facts.
And so, what the Supreme Court did with Mr. Iqbal's allegations was it looked at the facts alleged in the complaint and it said that some of these facts didn't have to be taken as true, because, in the Supreme Court's words they were conclusory allegations, they were only conclusions, the weren't actual facts. And so these conclusory allegations they didn't need to consider, and so, once they took those allegation out of the mix, they looked at the rest of the allegations by Mr. Iqbal and found that they did not plausibly establish a claim to relief -- that was the basic holding of the Court.
ALEXANDER: This was a close decision. What was the main argument of the dissent? How vociferous was that?
REINERT: It was a close decision, it was a 5-4 decision, the majority opinion was written by Justice Kennedy and Justice Souter wrote the principal dissent which was joined by all three of the other dissenters. And what Justice Souter in his dissent said was, well, first of all he took issue with the majority's view that certain of Mr. Iqbal's allegations were conclusory, and so, one of the things that Justice Souter said was that we should consider these allegations, and if you consider these allegations to be true, then he has stated a claim for violations of the Constitution. Justice Souter also in his dissent took issue with the majority reaching conclusions other than what Justice Souter believed the majority needed to reach. There were some other issues that the majority discussed in its opinion that Justice Souter thought were unnecessary, in particular he thought it was unfair to discuss them because we had never had a chance to actually brief them or argue them. So for instance one of the issues that the majority discussed was what standard of liability we were going to use for individuals like Defendant Ashcroft and Defendant Mueller. The government in its brief had said that it agreed with us, with the plaintiff, that if high-level officials knew about unconstitutional misconduct by subordinates and acquiesced in that misconduct, that is, agreed to allow that misconduct to take place, then that was sufficient to state a claim for a violation of the Constitution, that was a a concession by the government's attorneys about our theory of the case. And in the majority opinion...the majority ignored that concession, and actually decided that that knowledge plus acquiescence was not sufficient to state a claim. So what Justice Souter says is that, well, this is kind of unfair, because it was a concession, we never briefed it, the government had never briefed it, so the Court didn't have the benefit of briefing from either side as to this question, and so if the Court was to decide that, Justice Souter felt that there should be briefing. So Justice Souter called that part of the Court's opinion, the majority opinion dicta, which is just a word for reasoning that is unnecessary to the Court's holding. So he definitely took issue with that as well.
ALEXANDER: So this new pleading standard is fairly important. Can you unpack it a little bit more for us, and tell us if this is a standard that most litigants can reasonably meet?
REINERT: I can try to unpack it, and I think one thing it's important to realize is that it's hard to know what this new pleading standard, and let's call it the plausibility pleading standard, what this pleading standard means, because lower courts have to address it. The Supreme Court gave us some idea of what it means, but not a complete idea -- but I'll try to unpack it as best as I can. So the first thing we know, we didn't know this before Iqbal, but we know it now, is that the plausibility standard now applies to all civil litigation. It was actually a standard that was first announced three years ago in an antitrust case, so there had been some question in the lower courts as to whether it applied more broadly then antitrust claims. But that question has now been answered, and the answer is yes, it applies to all litigation. So the plausibility standard is what we have to deal with as litigators, and the question is what does it mean?
And so, what it seems to mean at the minimum is that if a complaint demonstrates only that unlawful conduct by the defendant was possible, that doesn't mean it was plausible. So the Court draws a line between a complaint possibly establishing a violation of the Constitution, or unlawful conduct, and plausibly establishing that violation. And so, the Court seems to saw that if there are other plausible explanations for what the defendants did that are lawful, then that will mean that possibility alone is not enough, that a complaint that only shows a possibility of relief is not enough, it has to show a plausibility of relief. We also know that plausibility isn't so high a standard that means that a plaintiff will have to provide evidence that it's more likely than not that the defendants violated the law. That's evidence that normally has to be introduced at trial, so normally you get that evidence through discovery. And so, the Court isn't saying that now you need to have the evidence at the pleading stage, which is a very early stage of litigation. So the plausibility standard isn't that stringent. It's something more than a mere possibility and something less than a preponderance of the evidence, something in between. The difficult question is how courts are supposed to figure out whether or not a complaint plausibly shows an entitlement to relief. One of the things that the Court refers to is ‘the common sense of judges,’ so it’s possible that the Court is suggesting that a judge is supposed to make an inquiry of his or her own as to whether or not he or she thinks that the complaint is plausible, that is, that the facts alleged in the complaint are plausible in the real world.
I don’t know if that’s what the Court was saying, but if that is what the Court is saying, then litigators at least should be worried over whether or not that violates the Seventh Amendment right to a jury trial, because the Seventh Amendment says that juries are to determine facts, not judges. And so if courts start to use this plausibility standard to determine facts on their own, then I think we need to start being worried about whether or not our Seventh Amendment rights are being eroded as well.
And the other thing....so that's the plausibility standard as far as we can unpack it. The other thing that the court distinguished in its decision was it talked about the allegations in the complaint, that is, the factual allegations in the complaint and distinguished between what is alleged in the complaint and what a complaint can show or can demonstrate. And so in drawing a line between a complaint's allegations, and what a complaint shows it seems to be that the Court is saying that we only...not everything that a complaint alleges can be shown. And so it seems maybe the Court is suggesting that when you figure what a complaint shows, or can show, that's when you're asking whether or not it is plausible, whether or not those allegations are plausible. So, the answer we can try to unpack it somewhat, but we can only unpack so much because the Court only gave us so much of an explanation and because a lot of this is going to be worked out by lower courts and they're only starting to do that job.
ALEXANDER: So, what impact might this have on civil rights cases?
REINERT: On civil rights cases it could have a very...for some cases it won't have much of an impact at all. I think...in those cases where...in cases involving direct misconduct, let's say, a police officer abusing a citizen, or a corrections officer abusing a prisoner, in those kinds of cases where the plaintiff normally can say, "this person did X to me, because I was there," it's not going to affect those cases that much.
It might affect cases…it probably will affect cases in which discrimination is a factor, because our case was about discrimination, and the Court spent a lot of time talking about the role of discriminatory intent in discrimination claims. And so it might make it harder in cases involving discrimination, and discriminatory intent, to make it into discovery, to get beyond the pleadings stage.
I think if it’s going to have any impact, that’s where it will have the most impact, is on those kinds of civil rights cases. And it probably also will have an effect on cases that try to hold higher-level officials accountable, where lower-level officials have been the direct cause of constitutional misconduct or unlawful misconduct. Sometimes plaintiffs try to hold higher-level officials accountable as well, either because the higher-level officials created policies that allowed this unconstitutional conduct to occur, or because they provided insufficient training or supervision of lower-level officials. So it will probably also affect those kinds of civil rights cases quite a bit.
ALEXANDER: And that generally is known as supervisory liability. Can you tell us exactly what that is and how it’s relevant to Americans?
REINERT: Sure. Supervisory liability is a fancy name for the liability of people who are higher up. The theory of supervisory liability is that sometimes, when, let’s say, your local police officer engages in unlawful conduct, let’s say, using a choke hold, using excessive force when it’s unnecessary to use excessive force to restrain a suspect, sometimes plaintiffs are able to show that higher-level officials were on notice that this was a problem, that they didn’t do anything about it, that they didn’t provide sufficient training, that they didn’t provide sufficient supervision, and that a result of higher-level
officials not providing that kind of training, not providing that kind of supervision, is that individual officers end up violating the law, because they haven’t been properly supervised, because they haven’t been trained.
And so, supervisory liability is a way that plaintiffs can hold accountable individuals who are farther removed from that direct Constitutional violation. So I think it’s relevant to most Americans because most of us are most affected by policies and choices made at those high levels. When a high level official decides to ignore evidence that low level officials or officers are violating the law, well, that has an affect on a lot of us. That kind of a decision has much more of an impact on most Americans than the individual officer who might or might not be misperceiving the threat posed to him, or be uncharacteristically sensitive, or the unusual officer who just wants to hurt a suspect. Those individual officers need to be held accountable, but they affect far fewer of us than the high-level officials who make these high-level decisions about the kind of world in which these low-level officials will operate and the kinds of sanctions that will be imposed on people for violating a policy, and even setting the policy itself.
REINERT: So, you know, we have great examples and really horrific examples, but examples in local police departments around the country where in some cities there's a real problem dealing with mentally ill suspects who often are shot by police officers because the police officer perceives the suspect to be a threat even though the person is really acting act because of their mental illness. Cities that have instituted training programs, that have informed officers as to how to deal with mentally ill suspects have been very successful in reducing those kinds of tragedies.
And so, imposing those policies is a decision for high level officials and not for low level officials. Those decisions are very important to most Americans. That's why I think it's really relevant. Those high level officials are the people who affect most of us most of the time.
ALEXANDER: And so, now that the Supreme Court has ruled, where does Mr. Iqbal's complaint go from here?
REINERT: Well, what the Supreme Court has said is that it has sent the complaint back to the appellate court, for the appellate court, the Second Circuit, the appellate court sitting here in New York State, in New York City, has given that appellate court the power to decide whether or not we can try to amend our complaint in the District Court. So right now we're waiting for the Second Circuit to decide what to do. We're going to be asking the Second Circuit to send our complaint back to the district court where we will move to amend the complaint to make more specific allegations against these two defendants. That's really the next step in the complaint, there are some other defendants who have made related arguments, similar arguments to the arguments made by Ashcroft and Mueller, and there may be some consequences for the claims as well. But no matter what, our next step is to try and amend the complaint to bring us into compliance with the standard that the Supreme Court articulated.
ALEXANDER: Alright, well, that about wraps up our questions...
REINERT: Okay.
ALEXANDER: We can't thank you enough for agreeing to speak with us today and good luck as the case proceeds forward!
REINERT: Thanks very much.
ALEXANDER: We were speaking with Professor Alex Reinert, an Assistant Professor of Law at Cardozo University.
The National Campaign to Restore Civil Rights is a collection of more than 100 civil rights organizations and individuals who came together to ensure the courts protect and ensure justice, fairness and opportunity for everyone. The campaign focuses on public education and outreach, finding ways to get the message out about the impact of court rulings on our communities, our opportunities and our rights.