Thomas Carl Dodds, Jr. v. Randy Richardson

Plaintiff Thomas Carl Dodds, Jr. brought this 42 U.S.C. § 1983 suit, alleging Defendant former Logan County, Oklahoma Sheriff Randy Richardson violated his Fourteenth Amendment due process rights by depriving him of his protected liberty interest in posting bail. The district court denied Defendant's claim to qualified immunity in the context of summary judgment, and Defendant appealed. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.



I.



Logan County, Oklahoma sheriff's deputies arrested Plaintiff pursuant to a felony arrest warrant and placed him in the Logan County Jail on Friday, April 6, 2007. An Oklahoma state district court judge set bond for Plaintiff in the arrest warrant in the amount of $5,000. Plaintiff alleges Logan County Jail employees told two individuals who inquired about posting bond on his behalf that he could not post the preset bail until after he was arraigned by a judge. Plaintiff was not arraigned until Monday, April 9. At that time, another state district judge reset bail at $10,000.



Plaintiff did not post bail. Later that week, the district court nevertheless released Plaintiff on a personal recognizance bond. The charges against Plaintiff underlying the arrest warrant were eventually dismissed in September 2007. Subsequently, Plaintiff filed suit under 42 U.S.C. § 1983 against, among others, Defendant in his individual capacity. Plaintiff asserted in his complaint he "had a liberty interest in the pre-set bond under the Fourteenth Amendment,” but Defendant denied him "such, without explanation, in violation of the [United States] Constitution.” Defendant filed a motion for summary judgment claiming he was entitled to qualified immunity because the policy of the Logan County court clerk or district judges prevented individuals charged with a felony from posting bond after hours.



According to Defendant, this policy rather than any action taken by him personally caused the alleged deprivation of Plaintiff's liberty. Dodds v. Logan County Sheriff's Dep't., No. 08-CV-00333-R, Order at *2 (W.D. Okla. Aug. 3, 2009) (Doc. #75). In an affidavit submitted to the district court and incorporated into Defendant's motion, the Logan County court clerk stated that for "at least the past eighteen years” "Logan County has [had] a local rule preventing individuals charged with a felony from posting bond until they have gone before a judge and been arraigned.” Aplt's App. at 138. The clerk also confirmed that "[i]t is the policy of the Court Clerk's office not to permit the Sheriff's office to accept bonds after hours on felony warrants.” Id. Evidently, however, no one submitted to the district court or this Court a copy of these local policies or stated definitively who promulgated them. See Dodds, Order at *2 (Aug. 3, 2009).



In response to Defendant's summary judgment motion, Plaintiff did not allege Defendant was one of the jail employees who told him or the individuals who inquired about posting bail on his behalf that he may not post the preset bail until he had been arraigned by a judge. Instead, Plaintiff responded that an Oklahoma sheriff is responsible for his county jail and has a duty to allow an arrestee such as Plaintiff to post bond. Id. (citing 57 Okla. Stat. § 47 ("The sheriff . . . shall have charge of the county jail of his county and of all persons by law confined therein, and such sheriff . . . is hereby required to conform, in all respects, to the rules and directions promulgated pursuant to [74 Okla. Stat. § 192] and of the district judge and communicated to him by the proper authority.”); 22 Okla. Stat. § 1101(A) ("Except as otherwise provided by law, bail . . . shall be admitted upon all arrests in criminal cases where the offense is not punishable by death and in such cases it may be taken by and of the persons . . . authorized by law to arrest, [and] to imprison offenders .



. . .”); Okla. Att'y. Gen. No. 69-138 (1969) ("In criminal cases except cases punishable by death . . . a sheriff is required to accept bail, under the terms of [22 Okla. Stat. § 1101 (1961)], for those persons jailed at times other than the normal working hours of the Court, provided proper bail has been set as provided by law.”)).



Plaintiff further asserted that the court clerk had no authority to create or maintain its policies at the jail or to dictate bail policy to the sheriff. Id. Therefore, according to Plaintiff, by acquiescing in the operation of the clerk's non-binding policies at the jail, Defendant breached the duties imposed by Oklahoma law to accept bail and to maintain the jail himself, and deprived Plaintiff of his liberty interest in posting the preset bail, in violation of the Fourteenth Amendment. Id.



The district court denied Defendant's motion for summary judgment, concluding: By accepting or acquiescing in a policy set by the Logan County Court Clerk or district court judges purportedly prohibiting individuals who have been arrested from posting bond until they have appeared before a judge and have been arraigned and or prohibiting the sheriff's office from accepting bond, Defendant Richardson knew or should have known that Logan County deputies and jailers would violate the constitutional rights of arrestees like Plaintiff whose bail had been preset in his arrest warrant by refusing to allow them to post bail in the amount set or accept bail, because under Oklahoma law, a sheriff is required to accept bail which has already been set for persons jailed at times other than the normal working hours, and individuals have a liberty interest in being freed of detention once the amount of their bail is set. See Gaylor v. Does, 105 F.3d 572, 576 (10th Cir. 1997). It may reasonably be inferred that Defendant Richardson, who was the supervisor of the deputies and jailers for Logan County, exhibited deliberate indifference to the due process rights of arrestees whose bail had been pre-set to be free of detention by acquiescing in the Logan County policy and that his acquiescence caused or contributed in causing the deprivation of Plaintiff's due process rights by another or others. Accordingly, Defendant Richardson has failed to show that he cannot be liable for participating or acquiescing in the deprivation of Plaintiff's Fourteenth Amendment rights. See e.g., Serna v. Colorado Department of Corrections, 455 F.3d 1146, 1151–52 (10th Cir. 2006).



Id. at *3–*4. The district court had previously concluded in another order that when Plaintiff was prevented from paying the bond set in his arrest warrant pursuant to these aforementioned policies, he "was unnecessarily detained without a legitimate goal (none is asserted) in violation of his due process rights.” Dodds v. Logan County Sheriff's Dep't., No. 08-CV-00333-R, Order at *4, (W.D. Okla. July 9, 2009) (Doc. #61) (denying the motion for summary judgment by Defendant Sheriff of Logan County in his official capacity).



Defendant appeals, challenging the district court's denial of qualified immunity. First, in his opening brief he maintains Plaintiff has failed to show that he was personally involved in preventing Plaintiff from posting bail. Second, he asserts Plaintiff has not demonstrated that he acted with the state of mind ("knowingly or with 'deliberate indifference' that a constitutional violation would occur”) required to impose § 1983 supervisory liability upon him. Third, Defendant argues our decision in Gaylor v. Does, 105 F.3d 572 (10th Cir. 1997), does not clearly establish that his compliance with a policy that prevents an arrestee from posting preset bail subjects him to liability in his individual capacity.



II.



The Supreme Court has recognized a number of immunities from § 1983 suit and liability, including qualified immunity. Lawrence v. Reed, 406 F.3d 1224, 1229 (10th Cir. 2005). "The doctrine of qualified immunity protects government officials 'from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'” Pearson v. Callahan, 129 S. Ct. 808, 815 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Once a defendant asserts qualified immunity, the plaintiff bears the burden of satisfying a "'strict two-part test.'” McBeth v. Himes, 598 F.3d 708, 716 (10th Cir. 2010) (quoting Bowling v. Rector, 584 F.3d 956, 964 (10th Cir. 2009)). "The plaintiff must establish '(1) that the defendant violated a constitutional or statutory right, and (2) that this right was clearly established at the time of the defendant's conduct. . . .'” Id. (quoting Bowling, 584 F.3d at 964).



We possess "'interlocutory jurisdiction over denials of qualified immunity at the summary judgment stage to the extent that they turn on an issue of law.'” Zia Trust Co. ex rel. Causey v. Montoya, 597 F.3d 1150, 1152 (10th Cir. 2010) (quoting Fogarty v. Gallegos, 523 F.3d 1147, 1153 (10th Cir. 2008)). Therefore, we usually only "examine the facts presented on summary judgment in the light most favorable to the plaintiff, to determine whether they amount to a violation of a clearlyestablished right.” Walker v. City of Orem, 451 F.3d 1139, 1155 (10th Cir. 2006); Lewis v. Tripp, 604 F.3d 1221, 1225 (10th Cir. 2010) ("At the summary judgment stage . . ., it is generally the district court's exclusive job to determine which facts a jury could reasonably find from the evidence presented to it by the litigants. After doing so, the district court and we may then consider the 'abstract' legal questions whether those facts suffice to show a violation of law and whether that law was clearly established at the time of the alleged violation.” (internal citations omitted)).



Generally, we may not "'review a district court's factual conclusions, such as the existence of a genuine issue of material fact for a jury to decide, or that a plaintiff's evidence is sufficient to support a particular factual inference.'” Zia Trust Co., 523 F.3d at 1153 (quoting Fogarty, 523 F.3d at 1154). Within this limited jurisdiction, "'[w]e review de novo the district court's denial of a summary judgment motion asserting qualified immunity.'” McBeth, 598 F.3d at 715 (quoting Bowling, 584 F.3d at 963).



III.



Although we are now at liberty to embark upon the two-part qualified immunity analysis in any order we choose, we begin in this case at the beginning: Has Defendant violated Plaintiff's federally protected rights? See Pearson, 129 S. Ct. at 818 (deciding that courts may undertake the qualified immunity analysis in any order they choose). In doing so, we "consider[] whether the facts taken in the light most favorable to the plaintiff show that the defendant's conduct violated a constitutional right” cognizable under § 1983. Poolaw v. Marcantel, 565 F.3d 721, 728 (10th Cir. 2009).



A.



Plaintiff's claim falls into a category of claims which unfortunately have become so common that they have acquired their own term of art: "'overdetention,'” i.e., when "the plaintiff has been imprisoned by the defendant for longer than legally authorized, whether because the plaintiff's incarcerative sentence has expired or otherwise.” Holder v. Town of Newton, 638 F. Supp. 2d 150, 153 (D.N.H. 2009) (citing Davis v. Hall, 375 F.3d 703, 714 (8th Cir. 2004) and Barnes v. District of Columbia, 242 F.R.D. 113, 117 (D.D.C. 2007)). "[T]he right of an accused to freedom pending trial is inherent in the concept of a liberty interest protected by the due process clause of the Fourteenth Amendment.” Meechaicum v. Fountain, 696 F.2d 790, 791–92 (10th Cir. 1983). Consequently, the denial of bail must comport with the requirements of due process. See id. at 792 ("[S]tate statutes restricting bail must be rational, reasonable, and nondiscriminatory. . . . [B]ail may not be denied 'without the application of a reasonably clear legal standard and the statement of a rational basis for the denial.'” (quoting Atkins v. Michigan, 644 F.2d 543, 549 (6th Cir. 1981))). In Gaylor v. Does, 105 F.3d 572 (10th Cir. 1997), we further clarified the due process protections involving bail. We declared that an arrestee obtains a liberty interest in being freed of detention once his bail is set because the setting of bail accepts the security of the bond for the arrestee's appearance at trial and "hence the state's justification for detaining him fade[s].” Id. at 576. To avoid depriving an arrestee of due process, the government may only interfere with this protected liberty interest, for instance by refusing to accept lawfully set bail from the arrestee and detaining him until some later time, if its actions reasonably relate "to a legitimate goal.” Id. Otherwise, the detention of such an arrestee would constitute punishment prior to trial, in violation of due process. Id. Other courts have similarly concluded that arrestees whose bail have been set have a protected liberty interest in posting bail and being freed from detention and, thus, depriving such arrestees of that liberty interest may violate due process. See e.g., Campbell v. Johnson, 586 F.3d 835, 586 (11th Cir. 2009) (explaining that a county sheriff may be held liable for violating the due process rights of an arrestee if he acts with deliberate indifference in personally refusing to accept the arrestee's court-set bail or if his actions were causally connected to his subordinates' refusal of the arrestee's bail); Doyle v. Elsea, 658 F.2d 512, 516–17 n.6 (7th Cir. 1981) ("For due process purposes, the constitutional liberty interest in release on bail arises after a magistrate has determined that an accused may be released upon deposit of whatever sum of money will ensure the accused's appearance for trial.”).



The district court concluded in this case that when Plaintiff was prevented from paying the bond set in his arrest warrant pursuant to these abovementioned policies, he "was unnecessarily detained without a legitimate goal (none is asserted) in violation of his due process rights.” Dodds, Order at *4, (July 9, 2009). For the following reasons, we agree. Defendant has yet to proffer any reason, let alone a "legitimate goal,” for refusing to allow Plaintiff to post bail and detaining Plaintiff for three days, other than the assertion that the longstanding policies or customs at the jail, allegedly set by either the court clerk or the district judges, prohibited individuals charged with a felony from posting bond until they had been arraigned by a judge and from posting bond after hours. Gaylor teaches that Plaintiff's liberty interest in being freed from pretrial detention once his bail had been set may not be denied just because an official says it has been his practice to do so for a long time and the practice of his predecessors for an even longer time. Gaylor, 572 F.2d at 576–77 (explaining that due process dictates that government officials may only interfere with an arrestee's liberty interest in being freed from detention in a manner reasonably related "to a legitimate [governmental] goal, such as insuring his appearance for trial or protecting others from him”). We note Defendant's counsel essentially conceded at oral argument the unconstitutionality of the policies that prevented Plaintiff from posting bail. When asked "[d]oesn't Gaylor make it clear that where bail has been set that it is a violation of due process not to grant it?” Defendant's counsel responded "Yes, I believe Gaylor does.” We therefore conclude Plaintiff has set forth facts that, if proven to be true, state a violation of his constitutional rights. Of course, that conclusion alone does not merit denying Defendant qualified immunity.



B.



We must now determine whether this Defendant deprived Plaintiff of that right and whether he may be held liable for that deprivation. See McBeth, 598 F.3d at 716 (providing that to overcome an official's assertion of qualified immunity and thereby subject her to suit and liability "[t]he plaintiff must establish '. . . that the defendant violated a constitutional or statutory right'” (quoting Bowling, 584 F.3d at 964)). To recover under § 1983, a plaintiff must establish "the violation of a right secured by the Constitution and laws of the United States. . . .” West v. Atkins, 487 U.S. 42, 48 (1988).1 Because a plaintiff can neither recover under § 1983 from a government official nor overcome the official's assertion of qualified immunity without demonstrating that official violated his constitutional or statutory rights, the legal analysis required to surmount these separate obstacles is often related, if not identical. As Justice Thomas explained:



In conducting qualified immunity analysis . . ., courts do not merely ask whether, taking the plaintiff's allegations as true, the plaintiff's clearly established rights were violated. Rather, courts must consider as well whether each defendant's alleged conduct violated the plaintiff's clearly established rights. For instance, an allegation that Defendant A violated a plaintiff's clearly established rights does nothing to overcome Defendant B's assertion of qualified immunity, absent some allegation that Defendant B was responsible for Defendant A's conduct.



Hope v. Pelzer, 536 U.S. 730, 751 n.9 (2002) (Thomas, J., dissenting). In particular, as will become apparent from our discussion, determining whether a plaintiff has demonstrated a defendant-supervisor violated his constitutional rights and whether § 1983 allows a plaintiff to hold a defendant-supervisor liable for that violation may depend on whether that defendant-supervisor, rather than only his subordinates, violated the plaintiff's constitutional rights. For this reason, we properly address this question of supervisory liability now as part of the qualified immunity analysis. See al-Kidd v. Ashcroft, 580 F.3d 949, 964–65 (9th Cir. 2009) (explaining that questions of supervisory liability, though part of the substance of a § 1983 claim, are also properly a part of the qualified immunity inquiry).



Defendant maintains that in order to show he violated Plaintiff's clearly established constitutional rights, and therefore overcome his assertion of qualified immunity as well as hold him liable under § 1983, Plaintiff must demonstrate that he personally participated in such a violation with a sufficiently culpable state of mind. Defendant points out that Plaintiff does not allege Defendant was one of the jail employees who told him and the individuals who inquired about posting bail on his behalf that he could not post the bail set in his arrest warrant until he had been arraigned by a judge. Nor does Plaintiff contend Defendant personally instructed those employees to refuse to accept bail from Plaintiff the weekend of Friday, April 6, 2007. According to Defendant in his opening brief, the "policy of the court clerk's office, and no action” by him deprived Plaintiff of his federally protected rights. Defendant argues, as a result, Plaintiff has not shown he committed any act which violated Plaintiff's rights or that he acted with deliberate indifference to Plaintiff's rights.



1.



Defendant's argument implicates important questions about the continuing vitality of supervisory liability under § 1983 after the Supreme Court's recent decision in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009).2 Prior to Iqbal, we held that § 1983 does not allow a plaintiff to hold an individual government official liable "under a theory of respondeat superior.” Gagan v. Norton, 35 F.3d 1473, 1476 n.4 (10th Cir. 1994) (citing Monell v. Dep't of Social Serv., 436 U.S. 658 (1978)); see also Poolaw, 565 F.3d at 732 ("[A] supervisory relationship alone is insufficient for liability under § 1983.”). We explained "'[t]his does not mean that a supervisor may not be liable for the injuries caused by the conduct of one of his subordinates. It does mean that his liability is not vicarious, that is, without fault on his part.'” Serna, 455 F.3d at 1151 (quoting Scull v. New Mexico, 236 F.3d 588, 600 (10th Cir. 2000)). "A crucial difference exists between liability as master (respondeat superior) and direct liability.” McClelland v. Facteau, 610 F.2d 693, 695 (10th Cir. 1979). While respondeat superior imposes liability for public policy reasons upon masters though they are not at fault in any way, direct liability only imposes liability where the plaintiff has shown the supervisor himself "breached a duty to plaintiff which was the proximate cause of the injury.” Id. We consequently concluded that "'[i]ndividual liability under § 1983 must be based on personal involvement in the alleged constitutional violation'” but "[p]ersonal involvement is not limited solely to situations where a defendant violates a plaintiff's rights by physically placing hands on him.” Fogarty, 523 F.3d at 1162 (quoting Foote v. Spiegel, 118 F.3d 1416, 1423 (10th Cir. 1997)). Personal involvement does not require direct participation because § 1983 states "'[a]ny official who "causes” a citizen to be deprived of her constitutional rights can also be held liable.'” Buck v. City of Albuquerque, 549 F.3d 1269, 1279 (10th Cir. 2008) (quoting Snell v. Tunnell, 920 F.2d 673, 700 (10th Cir. 1990)).



Even before Iqbal, it was not enough in our circuit "for a plaintiff merely to show defendant was in charge of other state actors who actually committed the violation. Instead, . . . the plaintiff must establish a deliberate, intentional act by the supervisor to violate constitutional rights.” Serna, 455 F.3d at 1151 (internal quotations omitted). In sum, to impose § 1983 liability the plaintiff first had to establish "the supervisor's subordinates violated the [C]onstitution.” Id. (internal quotations omitted). Then, the plaintiff must demonstrate "an 'affirmative link' between the supervisor and the violation . . . .” Id. Over time, this "affirmative link” requirement came to have three related prongs: (1) personal involvement, (2) sufficient causal connection, and (3) culpable state of mind. A plaintiff could establish the defendant-supervisor's personal involvement by demonstrating his "'personal participation, his exercise of control or direction, or his failure to supervise,'” Poolaw, 565 F.3d at 732 (quoting Green v. Branson, 108 F.3d 1296, 1302 (10th Cir. 1997)), or his "knowledge of the violation and acquiesce[nce] in its continuance.” Jenkins v. Wood, 81 F.3d 988, 995 (10th Cir. 1996)). A defendantsupervisor's promulgation, creation, implementation, or utilization of a policy that caused a deprivation of plaintiff's rights also could have constituted sufficient personal involvement. See Meade v. Grubbs, 841 F.2d 1512, 1528 (10th Cir. 1988) (stating § 1983 liability may be imposed on a supervisor who either "established or utilized an unconstitutional policy or custom” or "breached a duty imposed by state or local law which caused the constitutional violation”); Martin A. Schwartz, Section 1983 Litigation: Claims and Defenses, § 7.19[C] (4th ed. 2010) ("[S]upervisory officials who promulgate[d] policies that [were] enforced by subordinates [were] liable if the enforcement of the policy cause[d] a violation of federally protected rights.”).3 A plaintiff then had to establish the "'requisite causal connection'” by showing "'the defendant set in motion a series of events that the defendant knew or reasonably should have known would cause others to deprive the plaintiff of her constitutional rights.'” Poolaw, 565 F.3d at 732–33 (quoting Snell, 920 F.2d at 700).



And, finally, the plaintiff also had to show the supervisor had a culpable state of mind, meaning "the supervisor acted knowingly or with 'deliberate indifference' that a constitutional violation would occur.” Serna, 455 F.3d at 1151, 1154.4 We did not



view these requirements as necessarily distinct. Proof of a supervisor's personal direction or knowledge of and acquiescence in a constitutional violation often sufficed to meet the personal involvement, causal connection, and deliberate indifference prongs of the affirmative link requirement for § 1983 supervisory liability. See Jenkins, 81 F.3d at 995 (concluding a plaintiff may satisfy the requirements for imposing supervisory liability under § 1983 by "showing the defendant-supervisor personally directed the violation or had actual knowledge of the violation and acquiesced in its continuance”); Woodward, 977 F.2d at 1399–1400 & n.11 (implying that personal direction or actual knowledge and acquiescence demonstrates deliberate indifference).5



Based at least in part on this jurisprudence, the district court denied Defendant qualified immunity. The district court concluded Defendant possessed responsibility for running the jail, acquiesced in the continuing operation of the court clerk's or district judges' policies at the jail, and that "his acquiescence caused or contributed in causing the deprivation of Plaintiff's due process rights by another or others” because the policies prohibited felony arrestees, including those whose bond had been set, from posting bond after hours or until they had seen a judge. Dodds, Order at *3–*4 (Aug. 3, 2009). From Defendant's acquiescence in the continued operation of the clerk's or district judges' policies at the jail, the district court found a reasonable jury could infer Defendant had acted with "deliberate indifference to the due process rights of arrestees whose bail had been pre-set to be free of detention.”



Id. at *4. As a result, the district court determined Defendant could "be liable for participating or acquiescing in the deprivation of Plaintiff's Fourteenth Amendment rights.” Id. (citing Serna, 455 F.3d at 1151–52



2.



But then, as the saying will surely go, came Iqbal. Federal officials arrested and detained Javaid Iqbal, a Pakistani citizen, in the United States shortly after September 11, 2001. Iqbal, 129 S. Ct. at 1942. In his Bivens suit, he alleged inter alia that John Ashcroft, the former Attorney General, and Robert Mueller, the Director of the Federal Bureau of Investigation (FBI), violated his equal protection rights. Id. at 1942–43. Justice Kennedy, writing for the Supreme Court, explained that because Bivens is "'the federal analog'” to § 1983 suits, "Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior.” Id. at 1948 (citing Monell, 436 U.S. at 691). This statement alone adds nothing new to our law or that of our sister circuits. But, the Court then declared "[b]ecause vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.” Id. It explained that "[t]he factors necessary to establish a Bivens violation” and presumably a § 1983 violation, "will vary with the constitutional provision at issue.” Id. Consequently, when a plaintiff alleges "invidious discrimination in contravention of the First and Fifth Amendments” she "must plead and prove that the defendant acted with discriminatory purpose.” Id. Iqbal, as a result, had to plead that Ashcroft and Mueller "adopted and implemented the . . . policies at issue not for a neutral . . . investigative reason but for the purpose of discriminating on account of race, religion, or national origin.” Id. at 1948–49. Ashcroft and Mueller's alleged deliberate indifference to or knowledge and acquiescence in their subordinates' unconstitutional conduct or discriminatory animus, alone, did not amount to the state of mind required to establish Ashcroft and Mueller violated equal protection guarantees—purposeful discrimination—and the Court dismissed Iqbal's claims against them. Id. at 1949, 1952. Thus, when a plaintiff sues an official under Bivens or § 1983 for conduct "arising from his or her superintendent responsibilities,” the plaintiff must plausibly plead and eventually prove not only that the official's subordinates violated the Constitution, but that the official by virtue of his own conduct and state of mind did so as well. Id. at 1949.



Much has been made about this aspect of Iqbal, but consensus as to its meaning remains elusive. Justice Souter in his dissent, joined by Justices Stevens, Ginsburg, and Breyer, concluded the majority did not merely narrow, but rather eliminated supervisory liability altogether. Id. at 1957 (Souter, J., dissenting). He surmised that even if Iqbal's complaint sufficiently alleged Ashcroft and Mueller's "knowledge and deliberate indifference, [the majority] presumably would still conclude that the complaint fails to plead sufficient facts and must be dismissed.”



Id. at 1958 (Souter, J., dissenting). Some agree with Justice Souter's view of the majority's opinion: "[T]he Supreme Court in Ashcroft v. Iqbal . . . appears to have ruled that even deliberate indifference with actual knowledge [of subordinates' unconstitutional conduct] may not be sufficient for supervisory liability.” Nahmod, supra note 4, at § 3:100. Others posit the circuit courts' supervisory liability standards "only survive Iqbal to the extent they authorize § 1983 liability against a supervisory official on the basis of the supervisor's own unconstitutional conduct or, at least, conduct that set the unconstitutional wheels in motion. The issue, then is one of causation, i.e., whether the supervisor's conduct was a proximate cause of the violation of the plaintiff's constitutional rights.” Schwartz, supra III.B.1, at § 7.19[D]. We have already acknowledged that Iqbal may have changed the § 1983 supervisory liability landscape. See Lewis, 604 F.3d at 1227 n.3 ("At one end of the spectrum, the Iqbal dissenters seemed to believe that the majority opinion 'eliminates . . . supervisory liability entirely,' . . . . At the other end of the spectrum, the Ninth Circuit has read Iqbal as possibly holding that 'purpose . . . is required' merely in cases of alleged racial discrimination by governmental officials, given that Iqbal itself involved allegations of racial discrimination and such discrimination only violates the Constitution when it is intentional. . . . Many intermediate positions are also surely plausible.” (quoting al-Kidd, 580 F.3d at 976 n.25 (internal citations omitted)).6 But because our cases since Iqbal have thus far only presented allegations that do not satisfy our pre-Iqbal liability standard, we have not yet had occasion to determine what allegations of personal involvement and mental state do meet Iqbal's stricter liability standard.7 See id., 604 F.3d at 1227 n.3; Gallagher, 587 F.3d at 1069–71.



Whatever else can be said about Iqbal, and certainly much can be said, we conclude the following basis of § 1983 liability survived it and ultimately resolves this case: § 1983 allows a plaintiff to impose liability upon a defendant-supervisor who creates, promulgates, implements, or in some other way possesses responsibility for the continued operation of a policy the enforcement (by the defendant-supervisor or her subordinates) of which "subjects, or causes to be subjected” that plaintiff "to the deprivation of any rights . . . secured by the Constitution . . . .” (quoting 42 U.S.C. § 1983). See Schwartz, supra III.B.1, at § 7.19[C] (positing that imposing liability upon officials for their promulgation of a policy the enforcement of which violates individuals' federally protected rights holds such officials "responsible for their own wrongs rather than on the basis of respondeat superior liability” and, therefore, comports with Iqbal); see also Davis v. City of Aurora, __F. Supp. 2d__, __, 2010 WL 1348450, *17 (D. Colo. 2010) ("The exercise of control which may create the 'affirmative link' does not need to be the sort of on-the-ground, moment-to-moment control that defendants appear to suggest. Rather, the establishment or utilization of an unconstitutional policy or custom can serve as the supervisor's 'affirmative link' to the constitutional violation. . . . [W]here an official with policymaking authority creates, actively endorses, or implements a policy which is constitutionally infirm, that official may face personal liability for the violations which result from the policy's application.”). A plaintiff may therefore succeed in a § 1983 suit against a defendant-supervisor by demonstrating: (1) the defendant promulgated, created, implemented or possessed responsibility for the continued operation of a policy that (2) caused the complained of constitutional harm, and (3) acted with the state of mind required to establish the alleged constitutional deprivation.8 See Summum v. City of Ogden, 297 F.3d 995, 1000 (10th Cir. 2002)



("Under 42 U.S.C. § 1983, Summum must establish (1) a violation of rights protected by the federal Constitution or created by federal statute or regulation, (2) proximately caused (3) by the conduct of a person (4) who acted under color of any statute, ordinance, regulation, custom[,] or usage, of any State or Territory or the District of Columbia.” (internal quotations and citations omitted)). Denying qualified immunity on the basis of such a showing complies with Iqbal's requirement that § 1983 liability only be imposed upon those defendants whose own individual actions cause a constitutional deprivation because it requires plaintiffs prove each defendant took some act with the constitutionally applicable state of mind that caused the alleged constitutional violation.



Moreover, Iqbal does not purport to overrule existing Supreme Court precedent. While Iqbal may very well have abrogated § 1983 supervisory liability as we previously understood it in this circuit in ways we do not need to address to resolve this case, we do not believe it altered the Supreme Court's previously enunciated § 1983 causation and personal involvement analysis. Section 1983's supervisory liability journey arguably began with the Supreme Court's decision in Rizzo v. Goode, 423 U.S. 362 (1976). In Rizzo, the Court concluded a mayor, police commissioner, and other city officials could not be held liable under § 1983 for constitutional violations committed by unnamed individual police officers because:



As the facts developed, there was no affirmative link between the occurrence of the various incidents of police misconduct and the adoption of any plan or policy by petitioners—express or otherwise—showing their authorization or approval of such misconduct. Instead, the sole causal connection found by the District Court between petitioners and the individual respondents was that in the absence of a change in police disciplinary procedures, the incidents were likely to continue to occur, not with respect to them, but as to the members of the classes they represented.



Id. at 371. This reasoning implies defendant-supervisors may be liable under § 1983 where an "affirmative” link exists between the unconstitutional acts by their 26 subordinates and their "adoption of any plan or policy . . .—express or otherwise—showing their authorization or approval of such misconduct.” Rizzo, 423 U.S. at 371.



Then Justice Rehnquist writing for the Court contrasted the facts presented by Rizzo with those in Hague v. CIO, 307 U.S. 496 (1939). In Hague, the Court affirmed the imposition of § 1983 liability upon defendants, including a mayor and chief of police, for adopting and enforcing deliberate policies "of excluding and removing the plaintiff's labor organizers . . . . implemented 'by force and violence' on the part of individual policemen.” Rizzo, 423 U.S. at 374. And, in Allee v. Medrano, 416 U.S. 802 (1974), the plaintiffs alleged the complained of conduct "'was but one part of a single plan by the defendants . . . . The numerous incidents of misconduct on the part of the named Texas Rangers . . . found beyond peradventure not only a 'persistent pattern' but one which flowed from an intentional, concerted, and indeed conspiratorial effort to deprive the organizers of their First Amendment rights and place them in fear of coming back.” Rizzo, 423 U.S. at 374–75. According to the majority in Rizzo, "[t]he focus in Hague and Medrano, was . . . on . . . a 'pervasive pattern of intimidation' flowing from a deliberate plan by the named defendants to crush the nascent labor organizations.”



Id. at 375 (emphasis added). We conclude Rizzo's explanation of these cases and its reasoning confirm we properly impose § 1983 liability upon individual defendants who act with the requisite degree of culpability to promulgate, create, implement, or otherwise possess responsibility for the continued operation of policies that cause the deprivation of persons' federally protected rights.9



Not much later, the Supreme Court again addressed § 1983 liability in Monell v. Dep't of Social Serv., 436 U.S. 658 (1978). After conducting an extensive review of the legislative history of § 1983, the Court overruled "Monroe v. Pape [365 U.S. 167 (1961)] insofar as it holds that local governments are wholly immune from suit under § 1983” id. at 663, and instead concluded plaintiffs may sue municipalities and other local government entities as "persons” under § 1983. "However, [it upheld] Monroe v. Pape, insofar as it holds that the doctrine of respondeat superior is not a basis for rendering municipalities liable under § 1983 for constitutional torts of their employees.” Id. at 663–64, n.7. Based in large part upon the language of § 1983 itself, the Court declared "it is when execution of a [local] government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.” Id. at 694. The Court explained that § 1983's language:



"[A]ny person who, under color of any law . . . of any State, shall subject, or cause to be subjected, any person . . . to the deprivation of any rights . . . secured by the Constitution . . . shall . . . be liable to the party injured” . . . . plainly imposes liability on a government that, under color of some official policy, 'causes' an employee to violate another's constitutional rights. At the same time, that language cannot be easily read to impose liability vicariously on governing bodies solely on the basis of the existence of an employer-employee relationship with a tortfeasor. Indeed, the fact that Congress did specifically provide that A's tort became B's liability if B 'caused' A to subject another to a tort suggests that Congress did not intend § 1983 liability to attach where such causation was absent.



Id. at 691–92.10



Since Monell, the Supreme Court has "consistently refused to hold municipalities liable under a theory of respondeat superior” but nonetheless has imposed liability upon municipalities when the enforcement of their policies or customs by their employees causes a deprivation of a person's federally protected rights. Brown, 520 U.S. at 403. Therefore, the Court "require[s] a plaintiff seeking to impose liability on a municipality under § 1983 to identify a municipal 'policy' or 'custom' that caused the plaintiff's injury.” Id. "That is, a plaintiff must show that the municipal action was taken with the requisite degree of culpability and must demonstrate a direct causal link between the municipal action and the deprivation of federal rights.” Id. at 404 (emphasis added). Monell and its progeny clearly stand for the proposition that the very language of § 1983 provides for the imposition of liability where there exists an "affirmative” or "direct causal” link between a municipal person's adoption or implementation of a policy and a deprivation of federally protected rights, and that imposing liability upon such a basis does not implicate respondeat superior. Nothing in Iqbal contradicts this longstanding interpretation of § 1983's language.



3.



Regardless of the fate of other theories of supervisory liability in Iqbal's wake, we conclude the facts presented on summary judgment taken in the light most favorable to Plaintiff establish Defendant violated his federally protected rights, satisfying the first part of the qualified immunity test. Defendant contends that at most Plaintiff has demonstrated he failed to act and that he cannot be held liable under § 1983 for a failure to act. We disagree with his characterization of his role in the unconstitutional deprivation of Plaintiff's liberty interest. Defendant may not have personally informed Plaintiff or the individuals who inquired on his behalf that he could not post the preset bail until he had seen a judge. And, Defendant may not have actually known of his subordinates' enforcement of these policies with regard to Plaintiff in particular. Nonetheless, Defendant admits to the existence and operation of the policies of not allowing felony arrestees to post lawfully set bail after hours or until they had seen a judge. Defendant also admits that these policies are the reason Plaintiff was detained despite the fact a judge had already approved bail in the amount of $5,000 in Plaintiff's arrest warrant. Regardless of who first drafted the policies, Oklahoma law charged Defendant as sheriff with the responsibilities of running the county jail and accepting bail from all arrestees not charged with death-penalty eligible crimes. See 57 Okla. Stat. § 47 ("The sheriff .



. . shall have charge of the county jail of his county and of all persons by law confined therein, and such sheriff . . . is hereby required to conform, in all respects, to the rules and directions promulgated pursuant to [74 Okla. Stat. § 192] and of the district judge and communicated to him by the proper authority.”); 22 Okla. Stat. § 1101(A) ("Except as otherwise provided by law, bail . . . shall be admitted upon all arrests in criminal cases where the offense is not punishable by death and in such cases it may be taken by and of the persons . . . authorized by law to arrest, [and] to imprison offenders . . . .”); Okla. Att'y. Gen. No. 69-138 (1969) ("In criminal cases except cases punishable by death . . . a sheriff is required to accept bail, under the terms of [22 Okla. Stat. § 1101 (1961)], for those persons jailed at times other than the normal working hours of the Court, provided proper bail has been set as provided by law.”); see also Meade, 841 F.2d at 1528 ("Under Oklahoma law, a sheriff is responsible for the proper management of a jail in his county and the conduct of his deputies.”). Defendant evidently does not dispute this point. When asked at oral argument "And, in Oklahoma, isn't the sheriff the final policymaker for the jail?”



Defendant's counsel answered "Yes.” When asked "So as the final policymaker [Defendant] was required at least in his official capacity to make sure that the policies of the jail followed the Constitution?” Defendant's counsel responded, "I agree as in his official capacity he would be the final policymaker as to the jail.”



Thus, as Defendant's counsel conceded at oral argument, Oklahoma law made Defendant responsible for the policies that operated and were enforced by his subordinates at the jail. And under his watch, as he admits, the policies which caused Plaintiff's constitutional injury continued to operate. Defendant has not provided any reason to conclude these policies were binding upon him as sheriff in particular or upon the jail in general.11 Therefore, the facts, taken in the light most favorable to Plaintiff, show Defendant may have played more than a passive role in the alleged constitutional violation—he may have deliberately enforced or actively maintained the policies in question at the jail. Plaintiff has thereby presented facts that establish personal involvement by Defendant in the alleged constitutional violation sufficient to satisfy § 1983. By Defendant's own admission, the policies' enforcement caused the constitutional violation before us. As a result, the facts show Defendant's maintaining these policies at the jail caused Plaintiff to be deprived of his due process rights.



4.



Now that we have concluded Plaintiff has shown facts that, if proven at trial, suffice to establish Defendant's personal involvement caused the misconduct complained of, we address whether the facts show Defendant acted with the state of mind required to establish Defendant committed a constitutional violation. The Court in Iqbal explained that the factors necessary to establish a § 1983 violation depend upon the constitutional provision at issue, including the state of mind required to establish a violation of that provision. Iqbal, 129 S. Ct. at 1949. Iqbal's allegations that Ashcroft and Mueller knew and acquiesced in their subordinates' unconstitutional conduct did not allege they themselves purposefully discriminated on the basis of race, religion, or national origin—the state of mind required to establish an equal protection violation. Id. As a result, Iqbal's claims were insufficient to impose Bivens liability upon them without improperly implicating respondeat superior. Id. We therefore conclude that after Iqbal, Plaintiff can no longer succeed on a § 1983 claim against Defendant by showing that as a supervisor he behaved "knowingly or with 'deliberate indifference' that a constitutional violation would occur” at the hands of his subordinates, unless that is the same state of mind required for the constitutional deprivation he alleges. Serna, 455 F.3d at 1151 (quoting Green, 108 F.3d at 1302); see also Sandra T.E. v. Grindle, 599 F.3d 583, 588 (7th Cir. 2010) (concluding that after Iqbal when a plaintiff claims the defendant-supervisor violated her constitutional rights she must allege the defendantsupervisor acted with whatever state of mind is required to state the underlying constitutional violation she alleges); compare Daniels, 474 U.S. at 329–30 (holding "that § 1983 . . . contains no state-of-mind requirement independent of that necessary to state a violation of the underlying constitutional right. . . . But in any given § 1983 suit, the plaintiff must still prove a violation of the underlying constitutional right; and depending on the right, merely negligent conduct may not be enough to state a claim” (internal citations omitted)); Brown, 520 U.S. at 405 ("Section 1983 itself 'contains no state-of-mind requirement independent of that necessary to state a violation' of the underlying federal right. In any § 1983 suit, however, the plaintiff must establish the state of mind required to prove the underlying violation.” (quoting Daniels, 474 U.S. at 330)). But given Plaintiff alleges a substantive due process violation, it appears Plaintiff must establish that Defendant acted with deliberate indifference to Plaintiff's due process right to post preset bail.12 See Daniels, 474 U.S. at 330–31 (concluding something more than simple negligence is required to establish an official deprived an individual of life, liberty, or property under the Fourteenth Amendment); Green v. Post, 575 F.3d 1294, 1301 (10th Cir. 2009) (explaining that when a plaintiff alleges a substantive due process violation and "when actual deliberation is practical, we will employ a deliberate indifference standard” (internal quotations and citations omitted)); Webber v. Mefford, 43 F.3d 35 1340, 1342 (10th Cir. 1994) ("[A] government official violates an individual's Fourteenth Amendment rights by injuring his or her life, liberty, or property with deliberate or reckless intent.”). However, we need not say anything further as to what state of mind Plaintiff's substantive due process claim demands because neither party challenges the district court's conclusion that Plaintiff must show Defendant acted with deliberate indifference (albeit likely based upon our pre-Iqbal explanation of § 1983 supervisory liability given its citation to Serna, 455 F.3d at 1151–52).



Therefore, we should not consider the issue. See Hernandez v. Starbuck, 69 F.3d 1089, 1093 (10th Cir. 1995) ("A court of appeals is not required to manufacture an appellant's argument on appeal when it has failed in its burden to draw our attention to the error below. In the event of such a failure, the court will ordinarily consider the appellant's point waived.” (internal quotations and citations omitted)). So, let us be clear: We do not pass judgment at this time on the state of mind required to establish a substantive due process violation based upon preventing an arrestee from posting preset bail. We assume, without deciding, deliberate indifference constitutes the required state of mind.



In an appeal of a district court's denial of qualified immunity at the summary judgment stage, we may not review the district court's conclusion that the facts alleged support a particular factual inference. Zia Trust Co., 597 F.3d at 1152. But we may decide whether the facts "presented on summary judgment in the light most favorable to the plaintiff . . . amount to a violation of a clearly established right.”



Walker, 451 F.3d at 1155. In this case, conducting that analysis requires us to determine whether the facts support the view that Defendant acted with deliberate indifference to Plaintiff's due process rights, i.e., support the view that Defendant knew his actions created a substantial risk of constitutional injury. See Serna, 455 F.3d at 1154–55 (explaining that the plaintiff "must point to evidence that would establish [the defendant] knew he was creating a situation that created a substantial risk of constitutional harm” to establish the defendant acted with deliberate indifference); Campbell, 586 F.3d at 840 (determining that a plaintiff may show the defendant acted with the deliberate indifference required to establish a Fourteenth Amendment due process violation by providing evidence the defendant "had subjective knowledge of a risk of harm and disregarded that risk by actions beyond mere negligence”). Plaintiff has shown facts from which a reasonable jury could infer Defendant knowingly created a substantial risk of constitutional injury to people like Plaintiff. Oklahoma law made Defendant, rather than the clerk or district judges, responsible for controlling the jail and accepting bail from arrestees like Plaintiff. Defendant admits that while he served as the sheriff he maintained policies that prevented felony arrestees whose bail had been set from posting bail after hours and before arraignment. Plaintiff had a liberty interest in being released once his bail had been set. Defendant does not suggest any "legitimate goal” behind preventing felony arrestees whose bail had been set from posting bail. We therefore agree with the district court that Plaintiff has shown facts that taken in the light most favorable to him establish that Defendant acted with deliberate indifference and thereby violated his Fourteenth Amendment due process rights.



IV.



We now address whether Plaintiff has established Defendant violated a clearly established right. "The law is clearly established when a Supreme Court or Tenth Circuit decision is on point, or if the clearly established weight of authority from other courts shows that the right must be as plaintiff maintains.” Harman v. Pollock, 586 F.3d 1254, 1261 (10th Cir. 2009) (internal quotations omitted). We have explained that "clearly established” means "'[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be apparent.'”



Id. (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). That Plaintiff had a liberty interest based upon federal law in being freed from detention once bail had been set and that his continued detention despite that liberty interest must be reasonably related to a legitimate goal to pass constitutional muster have been clearly established in our circuit (and others) since at least 1997 when we published Gaylor. See supra III.A. Plaintiff's right to be free from unjustified detention after his bail was set was clearly established such that a reasonable official in Defendant's position in April 2007 would have understood that his deliberately indifferent maintenance of the policies that prevented arrestees from posting preset bail for no legitimate reason violated the Constitution.



Nonetheless, Defendant contends that Gaylor does not clearly establish that he could be liable in his individual capacity for the jail's policies which prevented arrestees whose bail had been set from posting bail. First, the "clearly established” prong of the qualified immunity inquiry asks whether the "'[t]he contours of the right'” the plaintiff claims the defendant violated are "'sufficiently clear that a reasonable official would understand that what he is doing violates that right.'” Harman, 586 F.3d at 1261 (quoting Anderson, 483 U.S. at 640) (emphasis added). Plaintiff has demonstrated at this stage in the litigation that the contours of the right he claims Defendant violated were sufficiently clear that a reasonable official in Defendant's position would know his maintenance of policies that prevent arrestees with preset bail from posting bail for no legitimate reason violates the Fourteenth Amendment right to due process. Second, while Gaylor admittedly involved municipal liability, other cases of ours and the great weight of authority from other circuits clearly established by 2007 that officials may be held individually liable for policies they promulgate, implement, or maintain that deprive persons of their federally protected rights. See supra III.B.1. Thus, we think Plaintiff has shown facts that, if proven at trial, establish Defendant violated his clearly established rights.



V.



Generally speaking, "a reasonably competent public official should know the law governing his conduct.” Harlow, 457 U.S. at 919. Once a plaintiff demonstrates the right at issue was clearly established, the defendant then bears the "burden to prove that her conduct was nonetheless objectively reasonable.” Roska ex rel. Roska v. Peterson, 328 F.3d 1230, 1251 (10th Cir. 2003) (citing Cannon v. City & County of Denver, 998 F.2d 867, 874 (10th Cir. 1993)) (emphasis added). Rarely, a defendant can demonstrate her conduct was nonetheless objectively reasonable if she demonstrates extraordinary circumstances that prove she "neither knew or should have known of the relevant legal standard.” Id. at 1247, 1251. "'The circumstances must be such that the defendant was so "prevented” from knowing that his actions were unconstitutional that he should not be imputed with knowledge of a clearly established right.'” Id. at 1251 (quoting Cannon, 998 F.2d at 874). A defendant's reliance "on a state statute, regulation, or official policy” may constitute just such extraordinary circumstances. Id.



Lastly, we note Defendant has repeatedly argued throughout this litigation that he relied on the court clerk's or district court judges' policies and that these policies caused Plaintiff's continued detention, rather than any action on his part. But he has never claimed prior to oral argument that he is entitled to qualified immunity because his conduct was nonetheless objectively reasonable in light of his reasonable reliance on policies set by the court clerk or district judges.13 While such an argument may be an obvious one given Defendant's repeated assertions that he relied on these policies, he has simply failed to make it or even cite any supporting precedent. For this reason, the district court never considered whether Defendant's reliance "on a state statute, regulation, or official policy” constituted extraordinary circumstances sufficient to warrant granting qualified immunity. Roska, 328 F.3d at 1251. Of course, when pointedly asked at oral argument whether it was objectively reasonable for Defendant to rely on these policies or whether our case law supported such a claim, Defendant's counsel answered the questions. But, again, Defendant's counsel did not raise the argument. In addition, in his responses to those questions he generally couched the inquiry as a matter of official versus individual liability, i.e., whether a former sheriff can be held individually liable for reliance on that policy.14



Moreover, "issues may not be raised for the first time at oral argument.” United States v. Abdenbi, 361 F.3d 1282, 1290 (10th Cir. 2004). And, we "should neither raise sua sponte an argument not advanced by a party either before the district court or on appeal, nor then advocate a particular position and resolve the appeal based on that advocacy.” Id.; see also Perry v. Woodward, 199 F.3d 1126, 1141, n.13 (explaining that although we may affirm a district court's decision for any reason supported by the record, because the defendants had not adequately developed the alternative argument we refused to address it). "Given [Defendant's] failure to properly raise, brief, and argue” that he is nonetheless entitled to qualified immunity because he reasonably relied on the policies at issue, which he bears the burden of proving, we will not consider the argument. Id.; see also Roska, 328 F.3d at 1251 (noting that once a plaintiff demonstrates the right at issue was clearly established, the defendant then bears the "burden to prove that her conduct was nonetheless objectively reasonable.”).



* * *



See: http://www.ca10.uscourts.gov/opinions/09/09-6157.pdf

The judgment of the district court is hereby AFFIRMED.