Web viewStanglin, 490 U.S. 19, 25 (1989) ... 466 U.S. at 808). The Albers Wiretapping Statute leaves open ample alternative channels for communication

SUPREME COURT OF THE UNITED STATES

No. ALB-12-01

YVETTE WILDING,

PETITIONER

v.

BEAR MOREMONT, ADAM TARGARYAN, AND TY LANISTERIn Their Individual Capacities,

and THE CITY OF WEST ROSE,

RESPONDENTS

On Writ of Certiorari to the Supreme Court of the United States

BRIEF FOR RESPONDENTS

Team R1

QUESTIONS PRESENTED

I. Whether the Court of Appeals correctly dismissed Petitioner’s claim where her conduct was not sufficiently expressive to implicate the First Amendment, and where the Albers Wiretapping Statute is content-neutral, narrowly tailored to protect individual privacy and public security, and allows for ample alternative channels of communication.

II. Whether the Court of Appeals correctly declined to impose supervisory liability on West Rose Police Chief Ty Lanister for the actions of his subordinate officers, where Lanister’s own personal misconduct caused no violation of the Petitioner’s Fourth Amendment rights, he had no purpose toward or knowledge of the violation, and he did not exhibit deliberate indifference regarding his subordinates’ training.

i

TABLE OF CONTENTS

Questions Presented . . . . . . . . . . . . . . . . . . . . . i

Table of Contents . . . . . . . . . . . . . . . . . . . . . . ii

Table of Authorities . . . . . . . . . . . . . . . . . . . . . v

Proceedings Below . . . . . . . . . . . . . . . . . . . . . . 1

Constitutional Provisions . . . . . . . . . . . . . . . . . . 3

Statutory Provisions . . . . . . . . . . . . . . . . . . . . . 4

Statement of the Facts . . . . . . . . . . . . . . . . . . . . 5

Summary of the Argument . . . . . . . . . . . . . . . . . . . 8

Argument . . . . . . . . . . . . . . . . . . . . . . . . . . 11

I. THE COURT OF APPEALS CORRECTLY DISMISSED PETITIONER WILDING’S CLAIM BECAUSE HER CONDUCT WAS NOT SUFFICIENTLY EXPRESSIVE TO IMPLICATE THE FIRST AMENDMENT, AND BECAUSE THE ALBERS WIRETAPPING STATUTE IS CONTENT-NEUTRAL, NARROWLY TAILORED TO PROTECT INDIVIDUAL PRIVACY AND PUBLIC SECURITY, AND ALLOWS FOR AMPLE ALTERNATIVE CHANNELS OF COMMUNICATION. . . . . . 11

A. Recording on-duty police officers is not protected expression under the First Amendment’s freedom of speech, freedom of press, or right to petition the government. . . . . . . . . . . . . . . . . . . . . 12

1. Recording on-duty police officers is neither inherently expressive conduct nor sufficiently imbued with elements of communication to implicate the First Amendment. . . . . . . . . . . . . . . 12

2. The First Amendment’s freedom of the press does not provide an affirmative right to record on-duty police officers. . . . . . . . . . . . . . . . . 15

3. Respondents’ actions did not interfere with Wilding’s First Amendment right to petition the government. . . . . . . . . . . . . . . . . . . . 17

B. The Albers Wiretapping Statute is content-neutral, narrowly tailored to the substantial government interests of individual privacy and public safety, and leaves open ample alternative channels to convey

ii

information, and therefore passes constitutional muster under the First Amendment. . . . . . . . . . 18

1. Because the Albers Wiretapping Statute is content-neutral and imposes no prior restraints on conduct, it is subject to the standard of intermediate scrutiny. . . . . . . . . . . . . . . . . . . . . 19

2. The Albers Wiretapping Statute is narrowly tailored to protect the government’s significant interest in protecting individual privacy and providing public safety. . . . . . . . . . . . . . . . . . . . . . 20

3. The Albers Wiretapping Statute leaves open ample alternative channels for communication. . . . . . 25

II. THE COURT OF APPEALS CORRECTLY DECLINED TO IMPOSE SUPERVISORY LIABILITY ON WEST ROSE POLICE CHIEF LANISTER, BECAUSE HE DID NOT CAUSE ANY VIOLATION OF PETITIONER’S FOURTH AMENDMENT RIGHTS THROUGH HIS OWN PERSONAL MISCONDUCT, HE HAD NO PURPOSE TOWARD OR KNOWLEDGE OF THE VIOLATION, AND HE DID NOT EXHIBIT DELIBERATE INDIFFERENCE REGARDING HIS SUBORDINATES’ TRAINING. . . . . . . . . . 26

A. The Iqbal Court eliminated the concept of supervisory liability in suits against government officials, and therefore Lanister cannot be held liable for the separate and independent actions of his subordinate officers. . . . . . . . . . . . . . . . . . . . . . 28

B. Even if supervisory liability remains a plausible theory in some limited circumstances, Petitioner’s claim against Respondent Lanister cannot meet the heightened standards and personal involvement threshold that Iqbal requires for suits against government officials. . . . . . . . . . . . . . . . 31

1. Lanister did not purposely intend or knowingly accede to any violation of Petitioner’s Fourth Amendment rights. . . . . . . . . . . . . . . 32

2. The pre-Iqbal “deliberate indifference” standard for failure to train cases is a necessary but no longer a sufficient condition for establishing a valid claim against a supervisor for failure to train subordinates. . . . . . . . . . . . . . 33

iii

3. Lanister’s failure to train West Rose police officers with respect to particular Fourth Amendment procedures did not rise to the level of deliberate indifference. . . . . . . . . . . . 36

4. Even if he were deliberately indifferent, Lanister had insufficient personal involvement under Iqbal to be liable for a violation of Petitioner’s rights. . . . . . . . . . . . . . 37

C. Rejecting liability on the basis of a police chief’s status as a supervising officer comports with considerations of government efficiency, effective law enforcement, judicial restraint, and federalism. . 38

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . 40

iv

TABLE OF AUTHORITIES

United States Supreme Court Cases

Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). . . . . . . . .passim

Bartnicki v. Vopper, 532 U.S. 514 (2001). . . . . . . . . 21, 22

Bd. of Cnty Comm’rs v. Brown, 520 U.S. 397 (1997). . . . 36, 37

Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971). . . . . . . . . . . . . . . . 29

Borough of Duryea, Pa. v. Guarnieri, 131 S. Ct. 2488 (2011). 17

Brandenburg v. Ohio, 395 U.S. 444 (1969). . . . . . . . . . . 25

Branzburg v. Hayes, 408 U.S. 665 (1972). . . . . . . 15, 16, 23

Cal. Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508 (1972). . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

City of Canton v. Harris 489 U.S. 378 (1989). . . 33, 34, 37, 38

City of Dallas v. Stanglin, 490 U.S. 19 (1989). . . . . . . . 14

Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14, 20

Connick v. Thompson, 131 S. Ct. 1350 (2011). . . 35, 36, 37, 39

Cooper Indus. v. Leatherman Tool Grp., 532 U.S. 424 (2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 27

Dunlop v. Munroe, 7 Cranch 242 (1812). . . . . . . . . . . . 28

Farmer v. Brennan, 511 U.S. 825 (1994). . . . . . . . . . . . 35

Gannett Co., Inc. v. DePasquale, 443 U.S. 368 (1979). . . . . 24

Gitlow v. New York, 268 U.S. 652 (1925). . . . . . . . . . . 12

Graham v. Connor, 490 U.S. 386 (1989). . . . . . . . . . . . 33

Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539 (1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

v

Hartman v. Moore, 547 U.S. 250 (2006). . . . . . . . . . . . 29

Houchins v. KQED, 438 U.S. 1 (1978). . . . . . . . . . . . . 15

Katz v. United States, 389 U.S. 347 (1967). . . . . . . . . . 22

Konigsberg v. State Bar of Cal., 366 U.S. 36 (1961). . . . . 18

Lovell v. City of Griffin, Ga., 303 U.S. 444 (1938). . . 19, 20

Members of City Council of City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789 (1984). . . . . . . . . . . . . . . 23, 25

Minn. State Bd. for Cmty. Colls. v. Knight, 465 U.S. 271 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978). . . 27, 28

Near v. Minnesota, 283 U.S. 687 (1931). . . . . . . . . . . . 20

New York Times Co. v. United States, 403 U.S. 713 (1971). 15, 16

Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986). . . . 20

Rizzo v. Goode, 423 U.S. 362 (1976). . . . . . . . . . . . . 27

Robertson v. Sichel, 127 U.S. 507 (1888). . . . . . . . . . . 28

Roviaro v. United States, 353 U.S. 53 (1957). . . . . . . . . 24

Rumsfeld v. Forum for Academic & Inst. Rights, Inc., 547 U.S. 47 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Spence v. Washington, 418 U.S. 405 (1974). . . . . . 12, 13, 18

Texas v. Johnson, 491 U.S. 397 (1989). . . . . . . . . . . . 14

Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (1994). . . . . 19

United States v. Albertini, 472 U.S. 675 (1985). . . . . . . 20

United States v. Jones, 132 S. Ct. 945 (2012). . . . . . . . 21

United States v. O’Brien, 391 U.S. 367 (1968). . . . . . 12, 19

vi

Ward v. Rock Against Racism, 491 U.S. 781 (1989). . . . . 25, 26

Whitney v. California, 274 U.S. 357 (1927). . . . . . . . 18, 23

Zemel v. Rusk, 381 U.S. 1 (1965). . . . . . . . . . . . . 15, 17

Other Federal Cases

Dodds v. Richardson, 614 F.3d 1185 (10th Cir. 2010). . . 31, 35

Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011). . . . . . . . 22

Maldonado v. Fontanes, 568 F.3d 263 (1st Cir. 2009). . . . . 31

Vinning-El v. Evans, 657 F.3d 591 (7th Cir. 2011). . . . . . 30

Constitutional Provision

U.S. Const. amend. I. . . . . . . . . . . . . . . . . 12, 15, 17

Federal Statutory Provision

42 U.S.C. § 1983. . . . . . . . . . . . . . . . . . . . . . . 27

State Statutory Provision

Albers Gen. Laws ch. 270, § 3517(a). . . . . . . . . . . 16, 25

Secondary Sources

Elena Kagan, Regulation of Hate Speech and Pornography After R.A.V., 60 U. Chi. L. Rev. 873 (1993). . . . . . . . . . . . 14

Joseph Story, Commentaries on the Constitution of the United States (1833). . . . . . . . . . . . . . . . . . . . . . . . 19

Office of Juvenile Justice & Delinquency Prevention, U.S. Dep’t of Justice, Gang Prosecution Manual (2009). . . . . . . . . . 23

President's Comm’n on Law Enforcement and Admin. of Justice, The Challenge of Crime in a Free Society (1967). . . . . . . . . 21

vii

Tom R. Tyler & Jeffrey Fagan, Legitimacy and Cooperation: Why Do People Help the Police Fight Crime in Their Communities?, 6 Ohio St. J. Crim. L. 231 (2008). . . . . . . . . . . . . . . . . . 23

viii

PROCEEDINGS BELOW

On October 17, 2009, Officers Bear Moremont and Adam

Targaryan arrested Petitioner for illegally intercepting oral

communications in violation of Albers Gen. Laws ch. 270, §

3517(a), the Albers Wiretapping Statute. [R. 1] Prosecutors

later dropped the charges and Petitioner Yvette Wilding brought

suit in the United States District Court for the District of

Albers against Respondents Moremont, Targaryan, and the City of

West Rose under 42 U.S.C. § 1983. Id. Petitioner claimed that

her arrest under the wiretapping statute violated her First

Amendment rights and that the seizure of her iPhone during the

arrest violated her Fourth Amendment rights. Id. at 2. She also

filed a § 1983 claim against Respondent Ty Lanister, the West

Rose Police Chief, seeking to hold him liable as a supervisor for

the officers’ violation of her Fourth Amendment rights. Id. The

District Court consolidated the cases pursuant to Fed. R. Civ. P.

42(a)(2). Id.

Prior to trial, Respondents Moremont, Targaryan, and the

City settled Petitioner’s Fourth Amendment claims against them

and then moved for summary judgment on the First Amendment claims

under Fed. R. Civ. P. 56(b). Id. at 2-3. The District Court

granted Respondents’ motion, finding that Petitioner’s arrest did

not implicate a protected First Amendment right. Id. at 2.

ix

Respondent Lanister also moved for summary judgment, arguing

that he could not be held liable as a supervisor for failing to

train his subordinate officers. Id. at 3-4. The District Court

granted that motion, finding that Petitioner had no valid § 1983

claim against Respondent Lanister. Id. at 4.

Petitioner appealed both decisions to the United States

Court of Appeals for the Fourteenth Circuit. Id. at 2, 4. The

Court of Appeals affirmed both rulings of the District Court,

holding that Petitioner’s arrest did not violate her First

Amendment rights and that Respondent Lanister is not subject to

supervisory liability. Id. at 22.

Petition appealed to this Court. Id. at 23. On January 23,

2012, this Court granted Certiorari to consider all issues raised

in the court below. Id.

x

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. ICongress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

U.S. Const. amend. IVThe right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

xi

STATUTORY PROVISIONS

42 U.S.C. § 1983 (2006). Civil action for deprivation of rights.

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, 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 to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

Albers Gen. Laws ch. 270, § 3517(a). Albers Wiretapping Statute.

Any person who commits an interception of any wire or oral communication shall be fined not more than ten thousand dollars, or imprisoned in the state prison for not more than five years, or imprisoned in a jail or house of correction for not more than two and one half years, or both so fined and given one such imprisonment.

The term “interception” means to record, or aid another to record the contents of any wire or oral communication through the use of any intercepting device by any person other than a person given prior authority by all parties to such communication.

Statement of the Facts

xii

In October 2009, Petitioner Wilding and her boyfriend John

Snow were members of the “Mance Raiders,” a violent criminal gang

that police in the City of West Rose have been investigating

since 2008. [R. 4, 6-7] On October 7, 2009, Snow told Wilding

that he wished to stop seeing her and “make a clean break” from

his involvement with the gang. Id. at 5. Concerned that Snow

might contact the police, Wilding began to follow him regularly.

Id. On October 10, Snow approached the West Rose police about

working as a confidential informant. Id. at 7. He quickly

assisted the police in collecting evidence for indictments

against several key gang members. Id.

On October 17, Wilding observed Snow stop at the entrance to

an alley in downtown West Rose, where she saw two uniformed

police officers approach him. Id. at 5. No one else was in the

alley. Id. The officers, Respondents Moremont and Targaryan of

the West Rose Police Department, then walked approximately ten

feet into the alley. Id. Snow then followed them. Id.

Wilding then approached, stopping at the alley’s entrance.

Id. Upon seeing Snow and the officers talking, Wilding began

recording audio and video of the interaction with her iPhone.

Id. at 5-6.

After approximately five minutes, Officer Moremont noticed

that Wilding was recording their conversation and alerted Officer

Targaryan and Snow. Id. at 6. Snow immediately ran away, while

xiii

the officers ordered Wilding to put down her phone and put her

hands up. Id. Wilding raised her free hand but continued to

record the interaction. Id. Then, Wilding refused the officers’

second order to put down her phone. Id. Instead, Wilding yelled

out for two hidden Mance Raiders to follow Snow. Id.

After Wilding refused the second order to stop recording,

Officer Targaryan placed her under arrest for violating the

Albers Wiretapping Statute. Id. Officer Moremont seized

Wilding’s phone, stopped the recording, and then deleted the

recording after consulting with Officer Targaryan. Id.

Snow subsequently appeared at a hospital, having suffered

severe injuries. Id. Soon after, he moved away and has refused

to cooperate further with the police. Id. at 7.

Respondent Ty Lanister, the West Rose Police Chief and the

officers’ supervisor, was later deposed pursuant to Petitioner’s

complaint. Id. Lanister testified that the West Rose Police

Department has “no official department policy” about how to

handle “citizen recorders,” but that he had never ordered

subordinates to delete recordings after a wiretapping arrest.

Id. Lanister testified that the Albers District Attorney told

him during the summer of 2009 that deleting photos or recordings

from a citizen’s camera violated the Fourth Amendment, except in

cases of “exigency or threat to police safety.” Id. at 8.

Lanister testified that he did not inform his officers of the

xiv

District Attorney’s opinion because “[i]t never came up.” Id.

Lanister also testified that “it’s always a threat to the

officer’s ability to safely do his job when a citizen sticks a

camera in the officer’s face.” Id.

xv

SUMMARY OF THE ARGUMENT

The Court of Appeals correctly dismissed Petitioner

Wilding’s claim because her conduct was not sufficiently

expressive to implicate the First Amendment, and because the

Albers Wiretapping Statute is content-neutral, narrowly tailored

to protect individual privacy and public safety, and allows for

ample alternative channels of communication. Recording on-duty

police officers is not protected expression under the First

Amendment’s freedom of speech, freedom of press, or right to

petition the government. Petitioner’s conduct was neither

inherently expressive conduct nor sufficiently imbued with

elements of communication to implicate the First Amendment.

Furthermore, the First Amendment’s freedom of the press does not

provide an affirmative right to record on-duty police officers

and Respondents’ actions did not interfere with Petitioner’s

right to petition the government. Therefore, Petitioner’s conduct

fails to receive First Amendment protection.

Even if Petitioner’s conduct is sufficiently expressive to

invoke the First Amendment, the Albers Wiretapping Statute

nonetheless passes constitutional muster because it is content-

neutral, narrowly tailored to the substantial government

interests of individual privacy and public safety, and leaves

open ample alternative channels to convey information. Because

the statute is content-neutral and imposes no prior restraints on

xvi

conduct, it is subject to the standard of intermediate scrutiny.

The wiretapping statute survives this standard because it is

narrowly tailored to protect individual privacy from unauthorized

intrusion and provide public safety by encouraging cooperation

with the police, and because the statute leaves open ample

alternative channels for communication.

The Court of Appeals also correctly declined to impose

supervisory liability on Respondent Lanister, the West Rose

Police Chief, because he caused no violation of Petitioner’s

Fourth Amendment rights through his own personal misconduct.

This Court eliminated supervisory liability as a distinct theory

of fault in Iqbal and held that government officials cannot be

vicariously liable for their subordinates’ actions or misconduct.

Therefore, because Lanister was not directly responsible for any

constitutional injury to Petitioner, he cannot be held liable at

all.

Even if some limited form of supervisory liability survived

Iqbal, the heightened standards that would apply preclude

Petitioner from making out a valid claim. Lanister had no

purpose or knowledge with respect to the deprivation of

Petitioner’s rights, and his failure to properly train his

subordinate officers did not amount to the kind of deliberate

indifference sufficient to trigger liability. Finally,

xvii

Lanister’s near complete lack of personal involvement in the

violation at issue renders Petitioner’s claim meritless.

xviii

ARGUMENT

I. THE COURT OF APPEALS CORRECTLY DISMISSED PETITIONER WILDING’S CLAIM BECAUSE HER CONDUCT WAS NOT SUFFICIENTLY EXPRESSIVE TO IMPLICATE THE FIRST AMENDMENT, AND BECAUSE THE ALBERS WIRETAPPING STATUTE IS CONTENT-NEUTRAL, NARROWLY TAILORED TO PROTECT INDIVIDUAL PRIVACY AND PUBLIC SECURITY, AND ALLOWS FOR AMPLE ALTERNATIVE CHANNELS OF COMMUNICATION.

The Court of Appeals for the Fourteenth Circuit correctly

dismissed Petitioner Wilding’s First Amendment claim because her

arrest pursuant to the Albers Wiretapping Statute did not violate

her constitutional rights. Recording on-duty police officers’

private conversations is not inherently expressive conduct,

essential to the right to petition, or a recognized element of

the freedom of the press. Indeed, Petitioner’s actions were part

of a criminal plan to violently retaliate against a police

informant. Therefore, Petitioner’s actions do not fall under the

aegis of the First Amendment.

Even if Petitioner’s conduct implicates the First Amendment,

the Albers Wiretapping Statute is a valid exercise of

governmental power and her arrest is not a constitutional

violation. Because the statute is content-neutral, intermediate

scrutiny applies. The statute is constitutional because it is

narrowly tailored to protect the government’s substantial

interest in promoting individual privacy and public safety, and

leaves open ample alternative channels for communicating any

message.

xix

This Court reviews de novo questions of constitutional law.

Cooper Indus. v. Leatherman Tool Grp., 532 U.S. 424, 431 (2001).

The First Amendment applies to the states through the Fourteenth

Amendment’s Due Process Clause. See Gitlow v. New York, 268 U.S.

652, 666 (1925).

A. Recording on-duty police officers is not protected expression under the First Amendment’s freedom of speech, freedom of press, or right to petition the government.

1. Recording on-duty police officers is neither inherently expressive conduct nor sufficiently imbued with elements of communication to implicate the First Amendment.

The First Amendment protects freedom of speech, U.S. Const.

amend. I, but conduct must be “sufficiently imbued with elements

of communication to fall within [its] scope.” Spence v.

Washington, 418 U.S. 405, 409 (1974) (per curiam). A person

engages in expressive conduct when “[a]n intent to convey a

particularized message [is] present, and in the surrounding

circumstances the likelihood was great that the message would be

understood by those who viewed it.” Id. at 410. A person’s

intent, however, is insufficient by itself to render conduct

expressive. See United States v. O’Brien, 391 U.S. 367, 376

(1968) (“We cannot accept the view that an apparently limitless

variety of conduct can be labeled ‘speech’ whenever the person

engaging in the conduct intends thereby to express an idea.”).

Furthermore, a person seeking to invoke the First Amendment’s

xx

protection bears the burden of “demonstrat[ing] that the First

Amendment even applies.” Clark v. Cmty. for Creative Non-

Violence, 468 U.S. 288, 293 n.5 (1984).

Petitioner’s actions – recording police officers

interacting with a confidential informant pursuant to an

investigation of a violent criminal enterprise – do not

constitute “conduct that is inherently expressive.” Rumsfeld v.

Forum for Academic & Inst. Rights, Inc., 547 U.S. 47, 66 (2006).

Although Petitioner asserts that her conduct “objectively

conveyed the idea that citizens should be watching the police,”

[R. 10], this claim is tenuous at best. The record demonstrates

that any reasonable observer would have “miss[ed] the drift of

[Wilding’s] point at the time that [she] made it.” Spence, 418

U.S. at 410. Because Petitioner remained unnoticed for the first

five minutes of her recording, [R. 6], an observer would have “no

way of knowing” that Wilding was expressing an idea. See Forum

for Academic & Inst. Rights, 547 U.S. at 66. Even after the

officers discovered Petitioner was recording, she reacted only by

ensuring her fellow gang members exacted revenge on Snow.

Indeed, the only logical inference from the record is that

Petitioner was secretly recording Snow to violently retaliate for

his cooperation with police, not to communicate any idea about

the role of police in society. Because any expressive component

of her conduct was neither “intentional” nor “overwhelmingly

xxi

apparent,” Texas v. Johnson, 491 U.S. 397, 406 (1989), Petitioner

fails to meet her burden. See Clark, 468 U.S. at 293 n.5

(rejecting the argument “that the burden on the [speakers] is

limited to the advancement of [only] a plausible contention that

their conduct is expressive”) (internal quotation and citation

omitted). Therefore, the Court of Appeals correctly held that

Petitioner’s recording was pure conduct, not speech.

Even if this Court were to hold that Petitioner’s conduct

was to some small degree “expressive,” the First Amendment still

does not apply. Petitioner’s actions contained at most a “kernel

of expression,” which this Court has found insufficient to invoke

the First Amendment. See City of Dallas v. Stanglin, 490 U.S.

19, 25 (1989) (“It is possible to find some kernel of expression

in almost every activity a person undertakes . . . but such a

kernel is not sufficient to bring the activity within the

protection of the First Amendment.”). “To hold otherwise would

be to create a rule that all conduct is presumptively

expressive,” Clark, 468 U.S. at 293 n.5, which would transform

the First Amendment into an unrecognizable proscription. See

Elena Kagan, Regulation of Hate Speech and Pornography After

R.A.V., 60 U. Chi. L. Rev. 873, 884 (1993) (“When ‘conduct’

becomes a synonym for ‘speech’ . . . government can regulate

either almost everything or almost nothing.”).

xxii

2. The First Amendment’s freedom of the press does not provide an affirmative right to record on-duty police officers.

The First Amendment forbids any law “abridging the freedom

of . . . the press.” U.S. Const. amend. I. “[T]he press must be

left free to publish news, whatever the source, without

censorship, injunctions, or prior restraints.” New York Times

Co. v. United States, 403 U.S. 713, 717 (1971) (Black, J.,

concurring). The First Amendment’s Free Press Clause, however,

protects only the press’s right to disseminate information. “The

right to speak and publish does not carry with it the

unrestrained right to gather information.” Zemel v. Rusk, 381

U.S. 1, 17 (1965).

While “a right to gather news, of some dimensions, must

exist,” Branzburg v. Hayes, 408 U.S. 665, 728 (1972) (Stewart,

J., dissenting), “the First Amendment does not guarantee the

press a constitutional right of special access to information not

available to the public generally.” Id. at 684 (majority

opinion). This Court’s precedents establish “no basis for the

claim that the First Amendment compels others – private persons

or governments - to supply information.” Houchins v. KQED, 438

U.S. 1, 11 (1978). The government need not affirmatively provide

access to information; it must only “assure the public and the

press equal access once government has opened its doors.” Id. at

16 (Stewart, J., concurring in the judgment). Under the First

xxiii

Amendment, reporters and private citizens “remain free to seek

news from any source by means within the law.” Branzburg, 408

U.S. at 681-82.

The Albers Wiretapping Statute does not implicate

Petitioner’s rights under the Free Press Clause. The statute

imposes no unlawful restrictions on her constitutional rights,

only limiting Petitioner’s ability to record “the contents of any

wire or oral communication through the use of any intercepting

device,” Albers Gen. Laws ch. 270, § 3517(a), something to which

she has no affirmative right of access. See Branzburg, 408 U.S.

at 681 (“Although . . . private wiretapping could provide

newsworthy information, neither reporter nor source is immune

from conviction for such conduct, whatever the impact on the flow

of news.”). Indeed, the statute “involve[s] no intrusions upon

speech or assembly, no prior restraint or restriction on what the

press may publish, and no express or implied command that the

press publish what it prefers to withhold.” Id. Despite

Petitioner’s implausible assertions to the contrary, the statute

leaves the press sufficiently protected to be able to “bare the

secrets of government and inform the people.” New York Times,

403 U.S. at 717 (Black, J., concurring). Recognizing

Petitioner’s free press claim – upholding a constitutional right

of access to record individuals’ private conversations – would

invalidate many of society’s most basic privacy protections. See

xxiv

Zemel, 381 U.S. at 16-17 (“There are few restrictions on action

which could not be clothed by ingenious argument in the garb of

decreased data flow.”).

3. Respondents’ actions did not interfere with Wilding’s First Amendment right to petition the government.

The First Amendment protects an individual’s “right . . . to

petition the Government for a redress of grievances.” U.S.

Const. amend. I. “[T]he right to petition extends to all

departments of the Government.” Cal. Motor Transp. Co. v.

Trucking Unlimited, 404 U.S. 508, 510 (1972). This right,

however, does not require government officials to affirmatively

respond or to provide individuals with “a meaningful opportunity

to express one’s views.” See Minn. State Bd. for Cmty. Colls. v.

Knight, 465 U.S. 271, 288 n.10 (1984). Although Petitioner

asserts that her right to petition was violated, the government

has imposed no constraints on her right “to express [her] ideas,

hopes, and concerns to [her] government and [her] elected

representatives.” See Borough of Duryea, Pa. v. Guarnieri, 131

S. Ct. 2488, 2495 (2011). No police actions prevented her from

petitioning her government or the courts. Even accepting that

the absence of concomitant audio recordings would somehow weaken

a future petition, it would certainly not render Petitioner’s

right to seek a redress of grievances “meaningless.”

xxv

Furthermore, the Albers Wiretapping Statute does not

contravene the “primary purpose of the First Amendment . . . to

insure that all ideas would be allowed to enter the ‘competition

of the market.’” Konigsberg v. State Bar of Cal., 366 U.S. 36,

63 (1961) (Black, J., dissenting). Wilding may purvey her

opinions on the marketplace of ideas and “discuss [her] freely

supposed grievances and proposed remedies.” Whitney v.

California, 274 U.S. 357, 375 (1927) (Brandeis, J., concurring).

Because Petitioner remains free to submit a petition to the

Albers Legislature or any other branch of government, her right

to petition under the First Amendment remains unaffected.

B. The Albers Wiretapping Statute is content-neutral, narrowly tailored to the substantial government interests of individual privacy and public safety, and leaves open ample alternative channels to convey information, and therefore passes constitutional muster under the First Amendment.

Even if Petitioner’s conduct is sufficiently expressive to

invoke the First Amendment’s protections, the government may

nonetheless impose reasonable regulations. See Spence, 418 U.S.

at 417 (1974) (Rehnquist, J., dissenting) (“The right of free

speech, though precious, remains subject to reasonable

accommodation to other valued interests.”). The content-neutral

Albers Wiretapping Statute passes intermediate scrutiny, because

it furthers significant government interests with narrowly

xxvi

tailored regulations that leave open ample alternative channels

for communication. See O’Brien, 391 U.S. at 377.

1. Because the Albers Wiretapping Statute is content-neutral and imposes no prior restraints on conduct, it is subject to intermediate scrutiny.

The record discloses no evidence that the Albers legislature

sought “to suppress unpopular ideas or information or manipulate

the public debate” or to “distinguish favored speech from

disfavored speech on the basis of the ideas or views expressed.”

Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 641, 643 (1994).

Indeed, both parties agree that the statute is content-neutral.

[R. 13]

Moreover, Wilding faces no “prior restraint” on her conduct

and may freely disseminate any information she collects.

Petitioner’s argument ignores the fact that the doctrine of prior

restraint is fundamentally concerned with the publication of

information, specifically “the right to publish without any

previous restraint or license.” Joseph Story, Commentaries on

the Constitution of the United States § 1879 (1833). Indeed,

this Court has long considered prior restraints presumptively

invalid because they “strike[] at the very foundation of the

freedom of the press by subjecting it to license and censorship.”

Lovell v. City of Griffin, Ga., 303 U.S. 444, 451 (1938).

Officers Moremont and Targaryan, however, arrested Petitioner for

her illegal conduct only. The fact that her unlawful recording

xxvii

was abridged in the course of the arrest does not convert a valid

criminal statute into a system of “license and censorship.” See

id. Because the Albers legislature acted “without reference to

the content of the regulated speech,” Renton v. Playtime

Theatres, Inc., 475 U.S. 41, 48 (1986), and the statute imposes

only “the subsequent punishment of such as may be deemed contrary

to public welfare,” Near v. Minnesota, 283 U.S. 687, 714 (1931),

this Court applies intermediate scrutiny.

2. The Albers Wiretapping Statute is narrowly tailored to protect the government’s significant interest in protecting individual privacy and providing public safety.

The Albers Wiretapping Statute survives constitutional

challenge because it is “narrowly tailored to serve . . .

significant governmental interest[s].” Clark, 468 U.S. at 293.

“An incidental burden on speech” is narrowly tailored “so long as

the neutral regulation promotes a substantial government interest

that would be achieved less effectively absent the regulation.”

United States v. Albertini, 472 U.S. 675, 689 (1985). Statutes

regulating protected speech are not “invalid simply because there

is some imaginable alternative that might be less burdensome on

speech.” Id.

The Albers Wiretapping Statute protects at least two

substantial state interests: protecting individual privacy by

preventing unauthorized audio recording and providing public

xxviii

safety through furthering cooperation with law enforcement.

Individual privacy is a government “interest[] of the highest

order,” Bartnicki v. Vopper, 532 U.S. 514, 518 (2001), which “in

a democratic society . . . is essential if citizens are to think

and act creatively and constructively.” President's Comm’n on

Law Enforcement and Admin. of Justice, The Challenge of Crime in

a Free Society 202 (1967). The First Amendment itself actually

protects this privacy – the “freedom not to speak publicly, one

which serves the same ultimate end as freedom of speech in its

affirmative aspect.” Harper & Row, Publishers, Inc. v. Nation

Enters., 471 U.S. 539, 559 (1985) (internal quotation omitted).

Without sufficient protection “the fear of public disclosure

of private conversations might well have a chilling effect on

private speech.” Bartnicki, 532 U.S. at 533. Indeed, “[e]very

spoken word relating to each man's personal, marital, religious,

political, or commercial concerns can be intercepted by an unseen

auditor and turned against the speaker to the auditor's

advantage.” Id. at 543 (Rehnquist, C.J., dissenting) (citation

omitted). This concern is amplified in light of today’s

“dramatic technological change.” See United States v. Jones, 132

S. Ct. 945, 964 (2012) (Alito, J., concurring). Far from

chilling protected speech, legislation protecting individual

privacy “encourage[s] conversations that otherwise might not take

place.” Bartnicki, 532 U.S. at 537 (Breyer, J., concurring).

xxix

The fact that a police officer is on-duty does not render

all of his conduct public. Moremont and Targaryan had a

reasonable expectation that their conversation with Snow would

remain private; Snow undoubtedly shared this expectation. See

Katz v. United States, 389 U.S. 347, 351 (1967) (“[W]hat [a

person] seeks to preserve as private, even in an area accessible

to the public, may be constitutionally protected.”). The

conversation occurred away from passersby in an alley - a far cry

from a public place. Cf. Glik v. Cunniffe, 655 F.3d 78, 84 (1st

Cir. 2011) (recording police officers executing arrest was

constitutionally protected because it took place “in the

apotheosis of a public forum”).

Accepting an expansive argument that on-duty police officers

never have a reasonable expectation of privacy would not only

violate their privacy, their dignity, and chill their speech, but

it would also vitiate Snow’s consent. Such a holding would

sensationalize the average person’s day-to-day interactions with

police. Private citizens could no longer speak to the police

without fearing a surreptitious recording, even when their

conversation occurred in an objectively private setting.

Allowing any person to violate the officers’ and Snow’s

privacy in this situation would chill important private speech,

contravening a central purpose of the First Amendment. See

Whitney, 274 U.S. at 375 (“Those who won our independence

xxx

believed that the final end of the state was to make men free to

develop their faculties. . . .”). Therefore, the statute

“responds precisely to the substantive problem which legitimately

concern[ed] the [government].” Members of City Council of City

of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 810

(1984).

The Albers Wiretapping Statute also protects the

government’s substantial interest in public safety. “Fair and

effective law enforcement aimed at providing security for the

person and property of the individual is a fundamental function

of government.” Branzburg, 408 U.S. at 690. To accomplish this

goal, “the police must be able to elicit cooperation from

community residents.” Tom R. Tyler & Jeffrey Fagan, Legitimacy

and Cooperation: Why Do People Help the Police Fight Crime in

Their Communities?, 6 Ohio St. J. Crim. L. 231, 233 (2008).

Confidential informants are an important element of law

enforcement efforts, especially against gangs and other criminal

organizations. See Office of Juvenile Justice & Delinquency

Prevention, U.S. Dep’t of Justice, Gang Prosecution Manual 21

(2009) (“[T]he benefits of [confidential informant]-supplied

information can be enormous.”). Would-be cooperators and

informants, however, are unlikely to come forward if their

interactions with police are always subject to surreptitious

monitoring and recording. Therefore, the government has a

xxxi

substantial interest in maintaining the anonymity of confidential

informants. See Gannett Co., Inc. v. DePasquale, 443 U.S. 368,

398 (1979) (noting the government’s interest in “preserv[ing] the

confidentiality of sensitive information and the identity of

informants”).

The West Rose police used Snow as a confidential informant

pursuant to investigating the Mance Raiders. The uncontested

record demonstrates that Snow was critical to investigating the

Mance Raiders’ violent criminal activities and that his police

cooperation ended after Wilding’s recording. Publicly disclosing

Snow’s identity thwarted the police investigation and caused Snow

to suffer severe injuries, substantially affecting “the public

interest in effective law enforcement.” Roviaro v. United

States, 353 U.S. 53, 59 (1957).

Maintaining the privacy of both Snow and the officers,

ensuring their safety in a dangerous situation, and furthering an

important criminal investigation undoubtedly constitute

“substantial interests.” By restricting undue invasions of

privacy in the form of unauthorized recording, the Albers

Wiretapping Statute “directly furthers [a] legitimate

governmental interests,” which “would have been less well served

in the absence of the [wiretapping] guideline.” Ward v. Rock

Against Racism, 491 U.S. 781, 801 (1989). The statute is not

perfect, but “it need not be the least restrictive or least

xxxii

intrusive means” available. Id. at 798. Therefore, “[i]t is not

‘substantially broader than necessary’ to achieve the

[government’s] legitimate ends and thus it satisfies the

requirement of narrow tailoring.” Id. at 802 (quoting Taxpayers

for Vincent, 466 U.S. at 808).

3. The Albers Wiretapping Statute leaves open ample alternative channels for communication.

Petitioner may still express her views in various forums,

petition the government, and gather information in any legal

manner to inform the public, including taking notes,

photographing events, and recording video. The statute prohibits

only recording without permission “the contents of any wire or

oral communication through the use of any intercepting device.”

Albers Gen. Laws ch. 270, § 3517(a). Wilding may even advocate

that others violate the statute, so long as “such advocacy is

[not] directed to inciting or producing imminent lawless action

and is [not] likely to incite or produce such action.”

Brandenburg v. Ohio, 395 U.S. 444, 447 (1969). Additionally,

“there has been no showing that the remaining avenues of

communication are inadequate” and it is manifest that the statute

will not have a “substantial deleterious effect on the ability”

of the press to cover the police. Ward, 491 U.S. at 801, 802.

Wilding’s implicit assertion that the wiretapping statute “may

reduce to some degree the potential audience” for her speech “is

xxxiii

of no consequence.” Id. at 802. Therefore, the statute leaves

open ample alternative channels for Wilding to convey whatever

message she chooses.

For the foregoing reasons, this Court should AFFIRM the

Court of Appeals’s holding that Petitioner’s conduct does not

implicate the First Amendment and that the Albers Wiretapping

Statute is content-neutral, narrowly tailored to substantial

government interests, and provides ample alternative channels for

communication.

II. THE COURT OF APPEALS CORRECTLY DECLINED TO IMPOSE SUPERVISORY LIABILITY ON WEST ROSE POLICE CHIEF LANISTER, BECAUSE HE DID NOT CAUSE ANY VIOLATION OF PETITIONER’S FOURTH AMENDMENT RIGHTS THROUGH HIS OWN PERSONAL MISCONDUCT, HE HAD NO PURPOSE TOWARD OR KNOWLEDGE OF THE VIOLATION, AND HE DID NOT EXHIBIT DELIBERATE INDIFFERENCE REGARDING HIS SUBORDINATES’ TRAINING.

Petitioner Wilding’s Fourth Amendment claim under 42 U.S.C.

§ 1983 fails because it ignores recent applicable precedent and

lacks support in the record to meet the relevant standards for

establishing liability. Petitioner, having already settled

claims against other defendants, now seeks to hold West Rose

Police Chief Ty Lanister legally responsible for his officers’

violation of her constitutional rights. Her effort to invoke the

theory of supervisory liability, however, necessarily falls

short. Petitioner’s attempt to secure yet another defendant by

attributing to Lanister the actions of his subordinates cannot

succeed under this Court’s precedents.

xxxiv

Petitioner’s appeal of the lower court’s grant of summary

judgment presents a question of law, which this Court reviews de

novo. Cooper Indus. v. Leatherman Tool Grp. , 532 U.S. 424, 431

(2001). Section 1983 provides a cause of action against any

person acting under color of state law who “subjects, or causes

to be subjected, any citizen . . . to the deprivation of any

rights” guaranteed by U.S. law or the U.S. Constitution. 42

U.S.C. § 1983 (2006). In considering the statute’s applicability

to government supervisors in charge of offending officers, this

Court has long emphasized the causation requirement necessary to

sustain a § 1983 suit: liability may attach for a particular

government actor only when its execution of official government

policy causes the injury for which a plaintiff sues to recover.

See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691-94 (1978)

(finding municipal “person” liable under § 1983 only where the

case “unquestionably involve[d] official policy as the moving

force of the constitutional violation”); Rizzo v. Goode, 423 U.S.

362, 375-76 (1976) (finding no § 1983 liability for city and

police department officials absent a “showing of direct

responsibility for the [alleged misconduct] of a small percentage

of the police force”).

Furthermore, it is well-established that government

officials are not vicariously liable for the actions of their

subordinates based on the doctrine of respondeat superior. See

xxxv

Monell, 436 U.S. at 691; Robertson v. Sichel, 127 U.S. 507, 515-

16 (1888); Dunlop v. Munroe, 7 Cranch 242, 269 (1812).

Government supervisors are liable only if directly responsible

for wrongdoing which causes harm.

Petitioner’s claim cannot be sustained under § 1983 based

merely on Lanister’s alleged failure to train subordinate

officers on particular Fourth Amendment procedures. This Court’s

ruling in Ashcroft v. Iqbal foreclosed liability for government

officials based on anything but their own personal misconduct.

129 S. Ct. 1937, 1948-49. The Court should confirm the

principles it announced in Iqbal, and reject Petitioner’s attempt

to reinstate an expansive notion of supervisory liability that

hinders government officials’ ability to do their jobs.

A. The Iqbal Court eliminated the concept of supervisory liability in suits against government officials, and therefore Lanister cannot be held liable for the separate and independent actions of his subordinate officers.

Petitioner’s claim rests fundamentally on a robust

conception of supervisory liability, a theory which this Court

precluded in the Iqbal decision. Javaid Iqbal sued several high-

ranking officials in the Department of Justice, seeking to hold

them liable for the federal authorities’ allegedly unlawful

discrimination in imprisoning and mistreating him on account of

his race, religion, or national origin. Id. at 1942. Whatever

constitutional violations Iqbal may have suffered at the hands of

xxxvi

lower-level government employees, the Court maintained and

reinforced its complete and longstanding rejection of respondeat

superior in this context, holding that “each Government official,

his or her title notwithstanding, is only liable for his or her

own misconduct.” Id. at 1949.

Iqbal brought his suit under Bivens, which forms a cause of

action for plaintiffs to sue federal officials for deprivations

of their constitutional rights. See Bivens v. Six Unknown Named

Agents of the Fed. Bureau of Narcotics, 403 U.S. 388, 403 (1971).

Though Iqbal did not arise under § 1983, the Court acknowledged

that where Bivens applies, its cause of action is the “‘federal

analog’” to § 1983 suits against state officials. Iqbal, 129 S.

Ct. at 1948 (quoting Hartman v. Moore, 547 U.S. 250, 254 n.2

(2006)).

The Iqbal Court clearly intended to extend its holding

beyond both the factual circumstances of the case and the

procedural limitations of Bivens actions; the persistent theme

was that all constitutional claims against government officials

must proceed on a theory of direct liability. “Because vicarious

liability is inapplicable to Bivens and § 1983 suits,” it stated

broadly, “a plaintiff must plead that each Government-official

defendant, through the official’s own individual actions, has

violated the Constitution.” Id. Indeed, in both suits against

federal officials under Bivens and suits against state officials

xxxvii

under § 1983, “the term ‘supervisory liability’ is a misnomer.”

Id.

In the wake of Iqbal, liability cannot be established by an

official’s status as a supervising officer, but only by his or

her own actions. Therefore, it is hard to escape the conclusion

that the very premise of supervisory liability has been

eliminated entirely. That, at least, is how the Iqbal dissenters

– hoping themselves to preserve supervisory liability –

understood the Court’s holding. Id. at 1957 (Souter, J.,

dissenting) (“The nature of a supervisory liability theory is

that the supervisor may be liable, under certain conditions, for

the wrongdoing of his subordinates, and it is this very principle

that the majority rejects.”). This commonsense reading of

Iqbal’s plain and direct language should settle the matter. See

Vinning-El v. Evans, 657 F.3d 591, 592 (7th Cir. 2011) (“Section

1983 does not authorize ‘supervisory liability.’ [See Iqbal, 129

S. Ct. at 1947–49.] Section 1983 creates liability only for a

defendant's personal acts or decisions.”)

Petitioner’s claim rests squarely on the continued viability

of pre-Iqbal supervisory liability, as though Iqbal were never

decided. But this Court cannot similarly ignore the impact of

its own recent precedent. Because the record shows no evidence

that Lanister’s own misconduct caused a deprivation of

Petitioner’s rights, her claim and appeal lack merit.

xxxviii

B. Even if supervisory liability remains a plausible theory in some limited circumstances, Petitioner’s claim against Respondent Lanister cannot meet the heightened standards and personal involvement threshold that Iqbal requires for suits against government officials.

If Iqbal allowed some limited notion of supervisory

liability to survive, it at least barred suits against government

officials lacking any personal involvement in the injury

underlying the claim. It can hardly be doubted that Iqbal

changed the legal analysis in this area, narrowing potential

theories of liability. See, e.g., Dodds v. Richardson, 614 F.3d

1185, 1200 (10th Cir. 2010) (“Iqbal may very well have abrogated

§ 1983 supervisory liability as we previously understood it in

this circuit.”); Maldonado v. Fontanes, 568 F.3d 263, 274 n.7

(1st Cir. 2009) (questioning the validity of circuit precedents

on § 1983 liability standards in light of Iqbal). But whatever

space may exist for importing old legal theories or developing

new ones, Petitioner’s claim against Lanister cannot succeed

under any standard for § 1983 liability consistent with Iqbal and

past precedents.

1. Lanister did not purposely intend or knowingly accede to any violation of Petitioner’s Fourth Amendment rights.

Lanister did not have a purposeful or even a knowing state

of mind with respect to the constitutional violation Petitioner

claims she suffered. The Iqbal Court required the § 1983

plaintiff to show that government officials purposely intended a

xxxix

policy to deprive him of his of constitutional rights. Iqbal, S.

Ct. 129 at 1949. While that determination of requisite mental

state was concededly made in a particular factual and procedural

setting, the Court hinted that its logic applies elsewhere by

asserting that “the same holds true for an official charged with

violations arising from his or her superintendent

responsibilities.” Id. Requiring other § 1983 plaintiffs to

show purposeful rights-deprivation, as Iqbal had to, is the

surest way to fully exclude meritless vicarious claims and limit

suits to those premised clearly on direct liability.

Nothing in the record suggests that Lanister purposely

intended to deprive Petitioner of her Fourth Amendment rights, or

even that he possessed actual knowledge that such injury would

result from his subordinates’ conduct. [R. 5-8] Moreover,

Petitioner has ignored Iqbal’s emphasis on a government

official’s unlawful purpose, arguing instead for lesser standards

without foundation in recent precedent. A so-called “parallel

mens rea test,” requiring a supervisor to have only the same

mental state as that required for the underlying constitutional

violation, is patently unworkable in a Fourth Amendment claim

such as Petitioner’s where the mens rea for an illegal seizure is

merely objective unreasonableness. See Graham v. Connor, 490

U.S. 386, 397 (1989). In such a case the supervisor would

possess no culpability at all, and any liability would

xl

necessarily be vicarious, in contravention of this Court’s

longstanding rule.

Petitioner has thus failed to establish Lanister’s

requisite mental state under either Iqbal’s purpose standard or

the lesser standard of actual knowledge.

2. The pre-Iqbal “deliberate indifference” standard for failure to train cases is a necessary but not sufficient condition for establishing a valid claim against a supervisor for failure to train subordinates.

Because Iqbal did not address the failure to train issue,

Petitioner still bears the burden of at least satisfying the

customary test for failure to train claims, though that alone may

not necessarily be enough. In cases where plaintiffs sue

government supervisors for failure to properly train their

subordinate officers, this Court held in City of Canton v. Harris

that the requisite standard was deliberate indifference to the

rights of affected individuals. 489 U.S. 378, 388-89 (1989). At

minimum, plaintiffs needed to show that inadequate training

amounted to a deliberate policy choice, and that it was closely

related to the ultimate injury which could have been avoided had

officers received more or better training. Id. at 389-91.

But City of Canton did not merely set up a difficult test

for § 1983 plaintiffs suing for failure to train: it clearly

stated that anything short of that test would be an improper

expansion of the statutory cause of action. Id. at 391 (“To

xli

adopt lesser standards of fault and causation would open

municipalities to unprecedented liability under § 1983.”). Even

then, the Court worried that allowing such suits to go forward

under any more lenient standard “would result in de facto

respondeat superior liability.” Id. at 392. That result would

be unacceptable, so a showing of deliberate indifference must be

considered an absolute minimum in failure to train claims.

But because this Court’s cases since Monell have

consistently adhered to the principle that a government policy

must itself cause the constitutional violation at issue to give

rise to § 1983 liability, the question of whether inaction or

nonfeasance can amount to an official policy remains a difficult

and important one. Since Iqbal, the Court has only had occasion

to consider one such case. In Connick v. Thompson, a former

state prisoner sued the local district attorney, alleging that

the DA’s failure to adequately train his prosecutors in

disclosing exculpatory evidence led to a flawed conviction and

prison sentence. 131 S. Ct. 1350, 1355 (2011). The § 1983 claim

was held deficient in this context, as the plaintiff did not show

the DA’s notice of, and therefore deliberate indifference to, a

need for more or different training. Id. at 1358. In other

words, Thompson could not meet the basic City of Canton standard

for a failure to train claim of supervisory liability, and his

claim was therefore easily dismissed.

xlii

But it simply does not follow that Thompson’s claim would

necessarily have been sufficient to hold DA Connick liable as a

supervisor if he had shown actual or constructive notice, and

thus satisfied the City of Canton test. See Farmer v. Brennan,

511 U.S. 825, 841 (1994) (clarifying the objective nature of the

deliberate indifference standard). By dismissing Thompson’s

claim under a rigorous City of Canton analysis, the Court never

had to apply Iqbal, which it otherwise surely would have had to.

See Dodds, 614 F.3d at 1198-99 (“[B]ecause 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.”).

The Connick Court’s open and general skepticism of § 1983

suits resting on fragile claims of nonfeasance by government

officials is manifest. Put simply, “culpability for a

deprivation of rights is at its most tenuous where a claim turns

on a failure to train.” Connick, 131 S. Ct. at 1359. The City

of Canton test is undoubtedly a threshold requirement, but it is

not enough on its own to sustain a post-Iqbal § 1983 claim for

failure to train.

3. Lanister’s failure to train West Rose police officers with respect to particular Fourth Amendment procedures did not rise to the level of deliberate indifference.

xliii

Petitioner’s claim against Lanister for failure to train his

subordinates lacks the conditions necessary to establish

deliberate indifference. The Connick Court emphasized that in

failure to train cases, it is ordinarily necessary to establish a

pattern of similar violations in order to show supervisors’

“‘conscious disregard for the consequences of their action.’”

Id. at 1360 (quoting Bd. Of Cnty Comm’rs v. Brown, 520 U.S. 397,

407 (1997)). Otherwise, an isolated violation without a

preexisting pattern can almost never adequately demonstrate the

deliberate indifference required to trigger § 1983 liability.

Id. In very limited circumstances, a single violation might

suffice, but only when the deprivation of rights which results is

“highly predictable” or “obvious.” Id. at 1361 (citing Brown,

520 U.S. at 409; City of Canton, 489 U.S. at 390).

While Lanister did know that protesters sometimes tried to

record police officers in his department and his officers might

sometimes delete their recordings, there is no clear evidence of

an actual pattern of Fourth Amendment violations. [R. 7]

Without such a pattern, Petitioner would be hard-pressed to show

that the single violation she endured was “highly predictable” or

“obvious.” Moreover, Lanister did not accept this possible

outcome (which was no official policy) out of apathy. He

accepted it out of concern for his officers’ safety, which the

Albers District Attorney expressly told Lanister was a legitimate

xliv

justification recognized by the Fourth Amendment. Id. at 8.

Though Lanister might have trained his officers never to seize

data from phones when baited by protesters, his failure to do so

did not constitute deliberate indifference.

4. Even if he were deliberately indifferent, Lanister had insufficient personal involvement under Iqbal to be liable for a violation of Petitioner’s rights.

All else aside, Petitioner’s claim against Lanister fails to

allege the requisite elements of personal involvement and

misconduct that Iqbal requires as a basis for liability. Iqbal,

129 S. Ct. at 1947-49. Lanister was not even present at the

scene of the arrest. [R. 7] There is no evidence he knew

anything about it until after the fact. Lanister did not

specifically instruct the officers what to do in this scenario,

and they carried out no official policy of his or the City’s when

they took and deleted Petitioner’s recording. Id. In fact,

Lanister had no personal connection to this particular rights

violation whatsoever, other than expressing a view later that

sometimes officers should do as Moremont and Targaryan did. Id.

Under Iqbal, this alone cannot possibly be enough to show that a

government official has caused injury by his or her own

misconduct. Therefore Petitioner’s claim, no matter what rights

she may in fact have been deprived of, is insufficient to expose

Lanister to liability.

xlv

C. Rejecting liability on the basis of a police chief’s status as a supervising officer comports with considerations of government efficiency, effective law enforcement, judicial restraint, and federalism.

Imposing liability on Lanister as a supervisor for failing

to adequately train his subordinate officers would be

inconsistent with key policies underlying this Court’s historical

conception of liability under § 1983.

Though § 1983 serves the important purpose of protecting

individuals from unconstitutional state action, there is also the

danger of overburdening, over-deterring, and ultimately

paralyzing local law enforcement with the threat of liability.

For these reasons, the Court has expressed reluctance to “engage

the federal courts in an endless exercise of second-guessing

municipal employee-training programs.” City of Canton, 489 U.S.

at 392.

This Court has therefore interpreted § 1983’s “causes to be

subjected” language as an important limitation on who exactly may

be held liable for violations of individuals’ rights. Even more

so than the longstanding general concern of supervisory

liability’s lapsing into respondeat superior, failure to train

claims hold the starkest danger that liability can be proved only

indirectly, and hence invalidly. See id.; Connick, 131 S. Ct. at

1359.

xlvi

For the foregoing reasons, this Court should AFFIRM the

Court of Appeals’s holding that Lanister’s lack of personal

misconduct precludes a finding of supervisory liability.

xlvii

CONCLUSION

For all of the foregoing reasons, Respondents respectfully

requests that this Honorable Court AFFIRM the judgment of the

Court of Appeals.

Respectfully Submitted,

Bear Moremont, Adam Targaryan, Ty Lanister, and

City of West Rose

By their attorneys

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