Date: 02-15-2002

Case Style: Peggy Poe v. John Leonard

Case Number: 00-9024

Judge: Unknown

Court: United States Court of Appeals for the Second Circuit

Plaintiff's Attorney: Kathryn Emmett of Emmett & Glander, Stamford, CT (Christine Caulfield, on the brief), for Plaintiff-Appellee.

Defendant's Attorney: Terrence M. O'Neill, Assistant Attorney General, Hartford, CT, on behalf of Richard Blumenthal, Attorney General for the State of Connecticut (Lynn D. Wittenbrink and Gregory T. D'Auria, Assistant Attorneys General, on the brief), for Defendant-Appellant.

Description: Plaintiff-Appellee sued, pursuant to 42 U.S.C. § 1983, a Connecticut State Trooper and his supervisor in their individual capacities after she discovered that the trooper surreptitiously videotaped her undressing at the Connecticut State Police Training Center. The supervisor appealed from an order of the United States District Court for the District of Connecticut (Alan H. Nevas, Judge) denying his motion for summary judgment, which asserted a defense of qualified immunity, and denying his motion in limine to exclude Plaintiff-Appellee's expert witness.

We hold that in order for a supervisor to be liable under section 1983, both the law allegedly violated by the subordinate and the supervisory liability doctrine under which the plaintiff wishes to hold the supervisor liable must be clearly established. By 1993, it was clearly established that a police officer violates a person's Fourteenth Amendment right to bodily privacy when that officer views, photographs or otherwise records another's unclothed or partially unclothed body, without the person's consent. By 1993, it was also clearly established that a supervisor could be liable if he had actual or constructive notice that it was highly likely his subordinate, while on duty, might violate another's right to privacy in his or her unclothed body, but the supervisor deliberately or recklessly disregarded that risk by failing to take reasonable action to prevent such a violation, and that failure caused the constitutional injury to the plaintiff. We conclude that the defendant supervisor is entitled to qualified immunity in this case because the plaintiff has failed to proffer sufficient facts to meet this standard and because reasonable supervisors in the defendant's position could disagree about whether his inaction violated clearly established law.

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Defendant-Appellant John Leonard appeals from an order of the United States District Court for the District of Connecticut (Alan H. Nevas, Judge) denying his motion for summary judgment, which asserted a defense of qualified immunity, and denying his motion in limine to exclude Plaintiff-Appellee Peggy Poe's expert witness.

This appeal arises out of alleged misconduct by Douglas Pearl, then a trooper with the Connecticut State Police ("CSP"), who surreptitiously videotaped Poe undressing at the CSP Training Center after asking Poe to appear in a training video. Poe sued Pearl and Captain John Leonard, Pearl's former supervisor, in their individual capacities under 42 U.S.C. § 1983, alleging that, while acting under color of state law, Pearl violated her constitutional right to privacy and Leonard violated her rights by his gross negligence or deliberate indifference in failing to adequately train, supervise, and discipline Pearl.

Both defendants moved for judgment on the pleadings, and the District Court granted the motion on the state law claims of negligence but denied the motion in all other respects. The District Court ruled that Poe had stated a claim for the violation of her constitutional right to privacy under the Fourteenth Amendment in her unclothed body and that this right was clearly established before the incident occurred. See Poe v. Pearl, No. 94 Civ. 2058 (AHN), 1997 WL 76576, at *6 (D. Conn. Jan. 29, 1997).

Approximately two and one-half years later, Leonard moved for summary judgment on the basis of qualified immunity. Leonard also moved in limine to preclude the testimony of Poe's expert witness, Dr. Louis A. Mayo. The District Court denied both motions. In its ruling, the District Court clarified that the scope of Poe's claim against Leonard was Leonard's alleged gross negligence in his managing, supervising, training, and disciplining of Pearl. The District Court concluded that genuine disputes of material fact existed as to whether Leonard was grossly negligent and that these disputes precluded finding that, as a matter of law, Leonard's conduct was objectively reasonable.

This appeal again forces this Court to address the often complex subject of qualified immunity, particularly as it relates to the existence of appellate jurisdiction, to a supervisor's responsibility over a subordinate who commits an intentional constitutional tort, and to a plaintiff's constitutional right of privacy in a non-seizure, non-prisoner context. We hold that in order for a supervisor to be held liable under section 1983, both the law allegedly violated by the subordinate and the supervisory liability doctrine under which the plaintiff seeks to hold the supervisor liable must be clearly established. By 1993, it was clearly established that a police officer violates a person's Fourteenth Amendment right to bodily privacy when that officer views, photographs or otherwise records another's unclothed or partially unclothed body, without that person's consent. By 1993, it was also clearly established that a supervisor could be liable if he had actual or constructive notice that it was highly likely his subordinate, while on duty, might violate another's right to privacy in his or her unclothed body, but the supervisor deliberately or recklessly disregarded that risk by failing to take reasonable action to prevent such a violation, and that failure caused the constitutional injury to the plaintiff.

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At some time during the fall of 1992, several administrative officials of the Connecticut State Police ("CSP") and the Connecticut Department of Administrative Services began to revise the testing procedures for trooper candidates at the CSP Training Academy ("police academy"). Captain Leonard, who had just assumed command of the CSP Bureau of Selections and Training, 1 supervised this ongoing project along with Dr. Martin Anderson ("Dr. Anderson"), the Chief Personnel Psychologist for the State of Connecticut. A particular focus of this project was the development of several testing videos, designed to screen out those trooper candidates with poor observational and communicative skills. In essence, trooper candidates would be required to view a videotaped scene of a crime or other representative "real life" scenario that CSP officers typically confront and then to explain what they had observed. As originally planned, the video scenes would include a variety of circumstances: a depiction of a person driving while intoxicated, a man with a weapon who stops and robs a victim, a simple trespass, a "static" crime scene, and a scene with a distraught victim.

During this project, Leonard met with Dr. Anderson and with Pearl, who was the trooper responsible for the production of training and public service videos. Although Pearl had several supervisors at the police academy, Leonard directly supervised Pearl in connection with the testing videotape production.

Pearl, unfortunately, had a history of inappropriate or otherwise problematic behavior with female civilians while on duty. Pearl's personnel file contains four separate improper incidents in a seven-year period, two of which bear mentioning for our purposes. In 1989, Pearl was given an unsatisfactory performance evaluation report for photographing several young women in swimsuits in a private bedroom while filming a public safety announcement. In 1983, a woman filed a formal complaint against Pearl, alleging that he made "numerous unwanted and improper advances" toward her and improperly touched her when he escorted her to and from the hospital following her epileptic seizure. These incidents, however, all occurred well before Leonard assumed command.

Although the incidents were described in Pearl's personnel file, at no time prior to the incident involving Poe did Leonard review Pearl's personnel file. 2 Leonard was unaware of, and was not informed by his predecessor 3 of, any performance or disciplinary issues involving Pearl at any time prior to the incident involving Poe. 4 In his affidavit, Leonard indicated that it "is not the policy or practice of the CSP for supervisors newly assigned to supervisory positions to review the personnel, disciplinary or internal affairs files of subordinate employees without some justifiable reason to do so." Leonard Aff. 11. Leonard also testified during his deposition that while outgoing supervisors and their replacements may discuss informally any pending personnel problems, the CSP had no formal policy of outgoing supervisors providing such information to their replacements.

Unaware of Pearl's history, Leonard gave him "blanket permission" to make any arrangement that Pearl saw fit for filming the scenes. Although Leonard did not supervise any of the actual filming by Pearl, he viewed the draft videos Pearl produced. Of particular relevance to this appeal and as pressed by Poe is the static crime scene video, produced before the incident involving Poe. This crime scene features a motel room in disarray, with beer bottles and articles of clothing strewn about, and a gun on the bed. As Pearl, the cameraperson, films the inside of the bathroom, he eventually focuses on bloodstains on the wall and the body of a gagged, female victim in the bathtub with her clothes in disarray.

Poe emphasizes two portions of the video: a focus on a bra on the bed and a lingering shot on the victim's upper thigh region. The entire crime scene lasts for approximately one minute and forty-five seconds on the testing video. During that time, Pearl pans the camera to the bra on the bed for approximately one-half of one second, and later returns to focus on the bra for approximately two seconds. Pearl also focuses on other articles of clothing in the room. For example, he focuses on a pair of men's black socks on the floor for one second. In between the shots of the bra, Pearl films the disorder by the dresser for approximately fifteen seconds. Pearl then moves into the bathroom, where he focuses on the bathroom sink, located opposite from the tub, for approximately eight seconds. Pearl then spends a total of thirty-four seconds filming the female "victim" who is lying in the tub, with one leg extending outside of the tub. The victim is wearing a cropped, short-sleeve T-shirt and what appears to be a white pair of shorts that is hiked to her upper thighs. Pearl lingers for approximately seventeen seconds on the victim's lower body, with a close-up on her upper thighs. He then pans out to include her legs and pans up to show her clothed upper body with a final focus on her head for another six seconds.

After viewing the static crime scene video, Leonard did not express any concern nor question Pearl about the scene. Although he knew that the woman playing the victim was a motel employee, and not a CSP officer, Leonard did not discuss any specific procedure that Pearl should follow when filming a video with civilian participants. 5

Upon his completion of the static crime scene video, Pearl's next task was to film a scenario involving an armed robber robbing a convenience store. Although the scene originally contemplated a male robber, Pearl suggested to Leonard during their meeting that the role be recast as a woman in order to make the scene "atypical." Pearl told Leonard that a friend (Poe) of Pearl's fiancée would play the robber. Pearl testified in his deposition that, during this meeting, he remembered "discussing the fact that we wanted the female robber to display "a lot of cleavage," in order to distract the testing candidates from the threat at hand. Leonard did not object to or question Pearl about this last suggestion.

Pearl invited Poe to the police academy, suggesting that she dress "provocatively" so that her appearance would be distracting to the testing candidates and that she bring several changes of clothing in case the clothing she wore was not appropriate for the look he wanted to achieve. After Poe arrived at the police academy wearing a skimpy low-cut blouse, Pearl directed her to change her clothing, specifically requesting that she "lose the bra." Pearl suggested that she change clothes in his office, told her where to stand, and left the room. Once Poe removed her shirt and bra, she noticed that a video camera sitting on a shelf was videotaping her. Poe brought the tape to the CSP, which investigated the incident and terminated Pearl.

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First, we must determine whether Poe alleges sufficient facts to show a violation of her constitutional rights. Poe must show a violation of a right secured by either the Constitution or a federal statute. Rodriguez v. Phillips, 66 F.3d 470, 475 (2d Cir. 1995) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). That said, the question arises what law must be proven to have been violated and by whom? May Poe defeat Leonard's qualified immunity defense by showing only that Pearl violated her right to privacy or must she show that Leonard is liable under a theory of supervisory liability, or both? Although we previously have recognized this ambiguity, we did not resolve it. See Ford v. Moore, 237 F.3d 156, 163 n.4 (2d Cir. 2001). 10 As we will discuss, the violation of Poe's right to bodily privacy by the subordinate, Pearl, on the facts alleged is clear, the right violated was clearly established at the time Pearl acted, and his conduct can only be viewed as objectively unreasonable. Whether the precise theory under which Leonard may be held liable was clearly established is a much closer question. Thus, unlike in Ford, we must resolve the ambiguity.

We conclude that Poe must show that both laws were clearly established to lay the predicate for demonstrating that Leonard lacked qualified immunity: the law violated by Pearl and the supervisory liability doctrine under which she wishes to hold Leonard liable. We thus join with the Circuits that have addressed this question and have held that a supervisor may not be held liable unless both legal theories were clearly established, see Camilo-Robles v. Hoyos, 151 F.3d 1, 6 (1st Cir. 1998), cert. denied, 525 U.S. 1105 (1999); Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 454 (5th Cir.), cert. denied sub nom. Lankford v. Doe, 513 U.S. 815 (1994); Shaw v. Stroud, 13 F.3d 791, 801 (4th Cir.), cert. denied, 513 U.S. 813 (1994) and 513 U.S. 814 (1994), but write to explain our reasoning.

The qualified immunity analysis depends upon an individualized determination of the misconduct alleged. Because the establishment of both the violation and the defense depend upon evaluating the harm inflicted and the individual responsibility of the accused public official, both the subordinate's and the supervisor's actions (or lack thereof) are relevant. For example, to establish liability, Poe must prove proximate causation. Blyden v. Mancusi, 186 F.3d 252, 264 (2d Cir. 1999); see 42 U.S.C. § 1983 ("Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . , subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable . . ."). Poe's alleged harm certainly results from Pearl's misconduct in surreptitiously videotaping her. But, according to Poe, this harm might not have occurred had Leonard supervised Pearl more closely. See Camilo-Robles, 151 F.3d at 7 (holding that "the plaintiff must affirmatively connect the supervisor's conduct to the subordinate's violative act or omission") (internal quotation marks omitted).

To find Leonard ineligible for immunity solely because Pearl acted unlawfully seems patently unfair as well as illogical. See Blyden, 186 F.3d at 264 ("The sadistic and malicious standard articulated in Hudson [v. McMillian, 503 U.S. 1 (1992) for excessive force claims arising under the Eighth Amendment] makes little sense, therefore, in the context of supervisory liability under Section 1983 based on, inter alia, failing to remedy a known wrong or being grossly negligent in managing subordinates who caused the unlawful condition or event.") (internal quotation marks omitted). Just as Leonard's liability depends in part upon his actions and choices, his eligibility for immunity must depend upon those same choices. See, e.g., Martinez v. Simonetti, 202 F.3d 625, 635 (2d Cir. 2000) (concluding that police supervisors who relied on allegedly false reports of arresting officers at the scene did not act objectively unreasonably in determining that sufficient probable cause existed to arrest plaintiff); Camilo-Robles, 151 F.3d at 7. Moreover, a focus on both officers' conduct complements the policies behind permitting public officials the refuge of qualified immunity in their public functions. Qualified immunity exists in part to protect society from the "substantial social costs" that governmental officials, fearing "personal monetary liability and harassing litigation[,] will unduly [be inhibited] in the discharge of their duties." Anderson, 483 U.S. at 638. Thus, our focus must be on the behavior of the governmental official in question, who will be shielded "from civil damages liability as long as [his] actions could reasonably have been thought consistent with the rights [he is] alleged to have violated." Id. We conclude that we must determine whether both laws, the law violated by Pearl and the specific supervisory liability theory under which Poe wishes to hold Leonard liable, were clearly established by March 1993, the time of the incident.

If we find that Poe has sufficiently alleged a violation of her constitutional rights by both Pearl and Leonard, we must determine whether Leonard may be held liable for his actions. To do so, we must examine whether these actions were objectively reasonable "in light of the legal rules that were 'clearly established'" at the time he acted. Anderson, 483 U.S. at 639 (citation omitted). The Supreme Court has directed us to define the relevant legal rule at the appropriate level of particularity. See id. at 639 (explaining that, for example, "the right to due process of law is quite clearly established by the Due Process Clause, and thus there is a sense in which any action that violates that Clause (no matter how unclear it may be that the particular action is a violation) violates a clearly established right," but at this level of generality, "[p]laintiffs would be able to convert the rule of qualified immunity . . . into a rule of virtually unqualified liability simply by alleging violation of extremely abstract rights"). The Court has instructed that the right allegedly violated must be defined.

The Fourth Amendment is not the proper source of Poe's constitutional right because Pearl's objectionable conduct occurred outside of a criminal investigation or other form of governmental investigation or activity. Cf., e.g., Soldal v. Cook County, 506 U.S. 56, 66-67 & n.11 (1992) (recognizing the applicability of the Fourth Amendment to a sheriff's unlawful seizure of a mobile home during eviction proceedings); Skinner v. Ry. Executives' Ass'n., 489 U.S. 602, 617 (1989) (holding that federal regulations requiring employees of private railroads to provide urine samples for drug testing are subject to Fourth Amendment strictures); O'Connor v. Ortega, 480 U.S. 709, 714-15, 723 (1987) (plurality opinion) (holding that public employer intrusions on the constitutionally protected privacy interests of government employees for noninvestigatory, work-related purposes, as well as for investigations of work-related misconduct, should be judged by the standard of reasonableness under the Fourth Amendment); New Jersey v. T.L.O., 469 U.S. 325, 335 (1985) (holding that the Fourth Amendment applies to governmental conduct whether "the government's motivation is to investigate violations of criminal laws or breaches of other statutory or regulatory standards") (internal quotation marks omitted); Camara v. Mun. Court of San Francisco, 387 U.S. 523, 534 (1967) (applying Fourth Amendment to governmental inspection program). In all of these cases, the challenged conduct occurred either during an investigation conducted by the government as an employer or during a law enforcement official's performance of a traditional governmental function. But there is no allegation here that Pearl videotaped Poe during the course of any investigation or other governmental endeavor of the sort implicating the Fourth Amendment. See United States v. Attson, 900 F.2d 1427, 1430 (9th Cir.) ("The types of non-law enforcement conduct to which the [Supreme] Court has extended the scope of the [Fourth] [A]mendment are thus typically motivated by some sort of investigatory or administrative purpose designed to elicit a benefit for the government."), cert. denied, 498 U.S. 961 (1990). Although Pearl invited Poe to film a training video to benefit the police academy, his surreptitious videotaping of her during his assigned duties was for his personal reasons and not to advance any governmental purpose. The Fourth Amendment simply is not implicated by his misconduct.

Instead, Poe's claim is appropriately analyzed pursuant to the Fourteenth Amendment's guarantee of substantive due process. See, e.g., Johnson, 239 F.3d at 251-52 (analyzing a student's claim that gym teacher used excessive force under the Fourteenth Amendment's substantive due process guarantee because the assault occurred in non-seizure, non-prisoner context); Harberthur v. City of Raymore, 119 F.3d 720, 723-24 (8th Cir. 1997) (concluding that the plaintiff, who was not under arrest or under suspicion of criminal activity, adequately alleged that police officer's sexual assault violated her substantive due process right to bodily integrity or privacy); Jones v. Wellham, 104 F.3d 620, 628 (4th Cir. 1997) (holding that claim brought by a plaintiff, who was not arrested or a criminal suspect but was raped by a police officer, was properly viewed as asserting a violation of her substantive due process right to bodily integrity under the Fourteenth Amendment, rather than as a violation of her Fourth Amendment rights); cf. County of Sacramento v. Lewis, 523 U.S. 833, 843 (1998) ("[I]f a constitutional claim is covered by a specific constitutional provision . . . the claim must be analyzed under the standard appropriate to that specific provision, not under the rubric of substantive due process.") (internal quotation marks omitted).

We discuss cases analyzing such a privacy interest under the Fourth Amendment in addition to those cases applying the Fourteenth Amendment's substantive due process standard to demonstrate that the type of privacy claim Poe asserts has been previously raised and accepted. Although the Fourth Amendment cases are not on all fours with Poe's claim under the Fourteenth Amendment, they are instructive because they reveal that individuals retain significant privacy interests even in situations where privacy expectations are diminished.

Several of our cases involve viewings of unclothed or partially unclothed individuals for penological purposes. In Forts v. Ward, for example, we recognized that female inmates had a privacy interest in protecting themselves from "the involuntary viewing of private parts of the body" by prison guards of the opposite sex. 621 F.2d 1210, 1217 (2d Cir. 1980). 12 In Security and Law Enforcement Employees v. Carey, 737 F.2d 187, 192, 204-09 (2d Cir. 1984), we examined the constitutionality of two forms of warrantless disrobe searches of correctional officers for contraband. Although holding that most of the policies governing the warrantless strip and visual body-cavity searches 13 of correctional officers violated the Fourth and Fourteenth Amendments, we concluded that if prison officials had reasonable suspicion to conduct a strip search of a correctional officer, that search would not violate the Constitution. Id. We recognized that correctional officers, just like visitors to a prison, retain an expectation of bodily privacy. Id. at 202. That expectation was diminished in that case by the notice to the officers of the Department of Correctional Services' policy and the legitimate penological needs of a correctional facility. Id.; see also Covino v. Patrissi, 967 F.2d 73, 78 (2d Cir. 1992) (holding that inmate subject to visual body cavity searches retained "a limited right of bodily privacy even in the prison context"). We have also recognized a privacy interest in cases where arrestees charged with misdemeanors were strip-searched without reasonable suspicion. See, e.g., Walsh v. Franco, 849 F.2d 66, 69 (2d Cir. 1988); Weber v. Dell, 804 F.2d 796, 802 (2d Cir. 1986). Poe, however, is not a correctional officer, whose duties include confiscating contraband and providing prison security and who is informed that, when at work, she could be searched. Thus, she has no reason to be aware of the potential for such a search. Nor is she a misdemeanor arrestee housed with a general jail population or with arraigned inmates. She is a private individual, not suspected of any criminal activity, who was invited by a police officer to assist in filming a police academy training video. Her expectation of bodily privacy, were we applying Fourth Amendment standards, would be high.

We have also indicated, although we have not held, that the publication of a photograph of a criminal suspect in the nude would violate the suspect's constitutional right to privacy. See Rosenberg v. Martin, 478 F.2d 520, 525 (2d Cir.) (Friendly, J.), cert. denied, 414 U.S. 872 (1973). In support of this proposition, we cited to the Ninth Circuit's decision in York v. Story, which held that a plaintiff, who went to the police department to file assault charges and was photographed by a police officer who told her that she would have to be photographed while in the nude, stated a violation of her right to privacy as guaranteed by the Fourteenth Amendment. 324 F.2d 450, 455 (9th Cir. 1963), cert. denied, 376 U.S. 939 (1964). Notably, the Ninth Circuit concluded that

We cannot conceive of a more basic subject of privacy than the naked body. The desire to shield one's unclothed figure from view of strangers, and particularly strangers of the opposite sex, is impelled by elementary self-respect and personal dignity. . . . We do not see how it can be argued that the searching of one's home deprives him of privacy, but the photographing of one's nude body, and the distribution of such photographs to strangers does not. Nor can we imagine a more arbitrary intrusion upon the security of that privacy than for a male police officer to unnecessarily photograph the nude body of a female citizen who has made complaint of an assault upon her .

Id. at 455. We find that these cases, read together, are sufficiently clear in establishing that there is a right to privacy in one's unclothed or partially unclothed body, regardless whether that right is established through the auspices of the Fourth Amendment or the Fourteenth Amendment.

Moreover, even if we did not have these cases on which to rely, we would find that Poe has independently asserted a violation of her substantive due process rights because Pearl's behavior, if proven, "shocks the conscience." The core protection provided by the Due Process Clause is protection against arbitrary government action. Thus, the "touchstone of due process is protection of the individual against . . . the exercise of power without any reasonable justification in the service of a legitimate governmental objective." County of Sacramento, 523 U.S. at 845-46 (internal quotation marks and citations omitted). We must determine, therefore, whether Pearl's behavior "is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience." Id. at 848 n.8.

Taking the facts most favorably to Poe, as we are required to do on a motion for summary judgment, it seems clear that Pearl manipulated the situation to ensure that Poe would be videotaped unclothed from the waist up: he told Poe to wear provocative clothing for her role in order to distract the trooper candidates and create a better training video; he encouraged her to bring several different outfits; even though she was already dressed provocatively, he encouraged her to change outfits; he told her to "lose the bra;" and he instructed her to change clothes in his office and then directed her to a precise spot to stand while doing so. Pearl did all this while purporting to act for the benefit of the police academy. Pearl's conduct certainly qualifies as "conduct intended to injure in some way unjustifiable by any governmental interest," which rises "to the conscience-shocking level." County of Sacramento, 523 U.S. at 849; see also Johnson v. Newburgh Enlarged Sch. Dist., 239 F.3d 246, 252 (2d Cir. 2001) (holding that a gym teacher's violent physical assault of a student was sufficiently "conscience-shocking" to constitute a violation of the student's substantive due process right to be free of excessive force).

We hold that Poe has alleged sufficient facts to raise a triable issue whether Pearl violated her constitutional right to privacy in her unclothed body and that her right to privacy in her unclothed body was clearly established at the time Pearl videotaped her. Although our prior cases have not presented exactly the same facts and the Supreme Court has advised that for qualified immunity purposes the right must be established "in a more particularized, and hence more relevant sense," Anderson v. Creighton, 483 U.S. 635, 640 (1987), we conclude, as we did in Johnson, that "for claims based on intentionally tortious harmful conduct employed in the absence of any legitimate government interest, the requisite degree of particularity is lessened," Johnson, 239 F.3d at 253. Our cases have sufficiently detailed the existence of such a privacy right and we independently find that Pearl's alleged behavior is shocking enough to qualify as a violation of Poe's substantive due process rights. Thus, it would be objectively unreasonable for a police officer to believe that Pearl's misconduct did not violate Poe's clearly established rights. Let us be clear: a police officer violates a person's constitutional right to bodily privacy when that officer manipulates the circumstances to view, to photograph, to videotape or otherwise record that person's unclothed or partially unclothed body without his or her consent where, as here, there is no conceivable investigative or otherwise proper law-enforcement interest advanced by such a viewing.

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A supervisor may not be held liable under section 1983 merely because his subordinate committed a constitutional tort. See Blyden v. Mancusi, 186 F.3d 252, 264 (2d Cir. 1999) (explaining that because section 1983 imposes liability only upon those officials who actually cause a violation, the doctrine of respondeat superioris inapplicable). We have held that a supervisor may be found liable for his deliberate indifference to the rights of others by his failure to act on information indicating unconstitutional acts were occurring or for his gross negligence in failing to supervise his subordinates who commit such wrongful acts, provided that the plaintiff can show an affirmative causal link between the supervisor's inaction and her injury. 14 See, e.g., Johnson, 239 F.3d at 254; Blyden, 186 F.3d at 264-65; Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir. 1986) (concluding that a prisoner stated a section 1983 claim against the prison superintendent asserting a violation of his rights at a prison disciplinary hearing because the evidence could show either that the superintendent was directly responsible for the conduct or that he allowed an unconstitutional policy or custom to continue despite the frequency of violations during hearings); Meriwether v. Coughlin, 879 F.2d 1037, 1047-48 (2d Cir. 1989) (affirming finding of supervisory liability when evidence showed that supervisors knew or should have known that plaintiff inmates' reputations as alleged planners of a violent insurrection would expose them to extreme hostility from the guards, yet took no precautions for the inmates' safety). Thus, as a general proposition, Leonard may be found liable if, in supervising Pearl, he exhibited gross negligence or deliberate indifference to a high risk that Pearl would violate Poe's constitutional rights, and Leonard's neglect caused Pearl to violate Poe's rights.

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Although we have held that a supervisor may be liable for either his gross negligence or deliberate indifference in supervising a subordinate who violates a person's constitutional rights, we must determine whether it has been clearly established that Leonard's failure to supervise Pearl more closely would violate Poe's rights in the particularized context of the facts at hand. The essence of Poe's claim rests on the concept of notice: either that Leonard had notice of sufficient facts to require him to do more or that he should have, by virtue of his supervisory position, investigated Pearl's past further before permitting him to continue with the video assignment.

Case law 15 clearly establishes that a supervisor may be liable for failing to screen or otherwise inquire about his subordinates or into their actions. See, e.g., Fiacco v. City of Rensselaer, 783 F.2d 319, 329-31 (2d Cir.1986) (finding sufficient evidence to support a jury's finding that a police chief was deliberately indifferent to his officers' use of excessive force because the evidence showed that the chief failed to exercise reasonable care in investigating several claims of police brutality and instead conducted only a superficial questioning of the accused officers), cert. denied, 480 U.S. 922 (1987). As we explain in greater detail below, that precedent clearly establishes that for a supervisor to be liable under section 1983 for his failure to inquire, he must first have been on notice that his subordinate was prone to commit some unconstitutional or unacceptable behavior. Such notice could be actual, (for example, awareness of prior deprivations in a related context) or it could be constructive, (for instance, notice arising from a preexisting duty). See, e.g., McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977) (holding that Commissioner of Corrections could not be held liable for damages for a violation of the plaintiff's due process rights at a prison hearing because there was no evidence that he participated directly in the hearings, that he had knowledge of what occurred at the hearings, that he had any reason to suspect that there had been wrongdoing, or that he had direct responsibility or control over the hearing committee), cert. denied, 434 U.S. 1087 (1978); Wright v. McMann, 460 F.2d 126, 134-35 (2d Cir.) (rejecting immunity defense for prison warden who had knowledge, both through actual notice and by virtue of his position, of inhumane treatment in the prison's "strip cells"), cert. denied, 409 U.S. 885 (1972). Combining the teachings of these cases with our generalized explanation of the gross negligence standard in Bryant v. Maffucci, 923 F.2d 979, 985 (2d Cir. 1991), we conclude that the appropriate inquiry is as follows: Poe must allege sufficient facts to raise a triable issue of fact as to whether Leonard knew or should have known that there was a high degree of risk that Pearl would behave inappropriately with a woman during his assignment, but either deliberately or recklessly disregarded that risk by failing to take action that a reasonable supervisor would find necessary to prevent such a risk, and that failure caused a constitutional injury to Poe. See, e.g., Taylor Indep. Sch. Dist., 15 F.3d at 454 (establishing a similar test for supervisory school officials whose subordinate sexually abused a student); McCann v. Coughlin, 698 F.2d 112, 125 (2d Cir. 1983) (holding that a prison commissioner and superintendent could be held liable for their gross negligence and deliberate indifference to the constitutional rights of inmates, as indicated by their having actual or constructive notice that unconstitutional practices were taking place, and their failure to act on the basis of this information); cf. Meriwether, 879 F.2d at 1047-48 (upholding a compensatory damage award for a § 1983 violation when the evidence showed that the commissioner and superintendent should have known that the plaintiff inmates' violent reputation (which was fostered in part by the commissioner's press secretary's statement to the media and by the descriptions of the inmates in their transfer orders) would provoke extreme hostility from correctional officers, yet the commissioner and superintendent took no precautions for the inmates' safety). Poe's difficulty, however, is that she has failed to proffer sufficient evidence to meet this standard.

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One Circuit, however, found a supervisor ineligible for qualified immunity because he failed to conduct a background check on an applicant. See Parker v. Williams, 862 F.2d 1471, 1477, 1480 (11th Cir. 1989) (finding that a sheriff was ineligible for qualified immunity because he failed to conduct a background check on a mentally unstable person he hired, who then kidnapped and raped a pre-trial detainee), overruled on other grounds by Turquitt v. Jefferson County, 137 F.3d 1285, 1291 (11th Cir. 1998) (en banc). Parker is distinguishable because it involved a supervisor's failure to screen a job applicant with a problematic history, rather than his failure to re-screen a problematic officer who was part of a pre-existing staff. In the case at bar, Leonard did not hire Pearl, but instead began to supervise him as part of the staff Leonard inherited from his predecessor. It is not unreasonable for a subsequent supervisor to rely on his predecessor to inform him of subordinates with problematic behaviors or histories. Supervisors cannot be expected to reinvent the wheel with every decision, for that is administratively unfeasible; rather, they are entitled to rely upon the decisions of their predecessors or subordinates so long as those decisions do not appear to be obviously invalid, illegal or otherwise inadequate. See Martinez v. Simonetti, 202 F.3d 625, 635 (2d Cir. 2000) (finding that it was erroneous for the trial court to conclude that police supervisors had a duty to conduct an independent investigation before charging a suspect); Varrone, 123 F.3d at 81; Cecere v. City of New York, 967 F.2d 826, 829 (2d Cir. 1992).

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Even considering all of Leonard's failings together, construing all facts and drawing all reasonable inferences in Poe's favor, we conclude that Poe has failed to proffer sufficient evidence to raise a triable issue regarding Leonard's alleged gross negligence or deliberate indifference. The facts Poe alleges are insufficient as a matter of law to have put a reasonable supervisor on notice that there was a high risk that one of his subordinates would violate another's constitutional rights. Accordingly, Poe fails to establish that Leonard acted with the sort of gross negligence or deliberate indifference necessary to support supervisory liability under clearly established law.

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Even if we found that Poe demonstrated that Leonard's inactions violated clearly established law, we would conclude that Leonard was entitled to qualified immunity because his conduct was not objectively unreasonable. When evaluating a claim of qualified immunity, "the appropriate question is the objective inquiry of whether a reasonable officer could have believed that [his actions were] lawful, in light of clearly established law" and "the circumstances confronting [him] at the scene." Martinez v. Simonetti, 202 F.3d 625, 634 (2d Cir. 2000) (internal quotation marks omitted). "A defendant is therefore entitled to summary judgment on qualified immunity grounds if a jury, viewing all facts in the light most favorable to the plaintiff, could conclude that officers of reasonable competence could disagree on the legality of the defendant's actions." Cerrone v. Brown, 246 F.3d 194, 202 (2d Cir. 2001) (internal quotation marks omitted). "[W]e have held that when the facts that bear on the circumstances are not in dispute, the issue of whether the defendant[] acted reasonably should be determined by the court on a motion for summary judgment." Tierney v. Davidson, 133 F.3d 189, 194 (2d Cir. 1998). The District Court erred in not conducting the legal inquiry necessitated by the defense of qualified immunity, which requires that a court determine whether, under the plaintiff's version of the facts, reasonable officers in the defendant's position could disagree as to the legality of his actions.

Reasonable supervisors confronted with the circumstances faced by Leonard could disagree as to the legality of his inaction. Indeed, even different circuits disagree about whether it is objectively reasonable for a supervisor, upon assuming his new post, to neglect to review his subordinates' personnel histories. Compare Shaw v. Stroud, 13 F.3d 791, 802-03 (4th Cir. 1994) (concluding that the actions of a newly appointed supervisor, who heard some informal complaints about a subordinate officer but conducted a minimal investigation into those complaints, were objectively reasonable) with Parker v. Williams, 862 F.2d 1471, 1477 (11th Cir. 1989) (affirming denial of qualified immunity after trial because a reasonable sheriff could not have concluded that hiring an individual with a troubled background, of which the sheriff knew or could have discovered with minimal investigation, would not violate the plaintiff's rights), overruled on other grounds by Turquitt v. Jefferson County, 137 F.3d 1285, 1291 (11th Cir. 1998) (en banc). Although the lingering shot of the victim's upper thighs in the static crime scene might concern some supervisors, we conclude that a reasonable supervisor, who was unaware of Pearl's past misbehavior with women, would not have found anything unusual when viewing the videotape in the context of preparing a realistic crime scene for police candidates to observe closely, particularly given that such scenes are often violent or gruesome. Much of Poe's evidence derives from Dr. Mayo's testimony that Leonard's conduct did not meet recommended national standards. But Dr. Mayo's inability to identify one police department that followed the standards he advocated demonstrates that there is a range of supervisory conduct that reasonable officers believe is acceptable. Considering all of Leonard's alleged inadequacies together, we conclude that, at best, reasonable supervisors could disagree as to whether Leonard violated clearly established law.

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Click the case caption above for the full text of the Court's opinion.

Outcome: For the foregoing reasons, we conclude that we have jurisdiction to review the merits of Leonard's qualified immunity defense, and that his defense should be upheld as a matter of law. We reverse and remand to the District Court with instructions to dismiss with prejudice the complaint as to Captain John Leonard.

Plaintiff's Experts: Dr. Mayo

Defendant's Experts: Unknown

Comments: