Thread by @gideonoliver

Some very bad news for civil rights litigants:

Per today's decision in Tangreti v. Bachmann, supervisory liability under Colon v. Coughlin is dead in the Second Circuit

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ca2.uscourts.gov/decisions/isys…

Following are the five ways Colon v. Coughlin, 58 F3d 865, 873 (2d Cir 1995), recognized to establish the personal involvement of a supervisory defendant.

After yesterday's Tangreti opinion, only the first and arguably part of the third are still viable in the Second Circuit

Under Colon, supervisory personal involvement could be established under 42 USC 1983 if the defendant:

1) participated directly in the alleged constitutional violation;

(2) after being informed of the violation through a report or appeal, failed to remedy the wrong;

(3) created or allowed the continuance of a policy or custom under which...unconstitutional practices occurred;

(4) was grossly negligent in supervising subordinates who committed the wrongful acts; or

(5) exhibited deliberate indifference ... by failing to act on...

information... that unconstitutional acts were occurring.

See Colon v. Coughlin, 58 F3d 865, 873 (2d Cir 1995).

Yesterday's Tangreti opinion effectively neutralized all but the first and part of the third avenues to establishing supervisory liability under Colon.

Post-Iqbal but pre-Tangreti, here's how one SDNY judge, P. Kevin Castel, analyzed liability under Colon in one of my OWS cases, see Marom v City of NY, No. 15-cv-2017 (PKC)], 2016 US Dist LEXIS 28466, at *43-52 (SDNY Mar. 7, 2016).

Judge Castel started with a summary of Colon:

After discussing Iqbal and post-Iqbal supervisory liability caselaw in the Second Circuit, Judge Castel reasoned that liability could be found based on the second, fourth, and/or fifth factors in the Colon test, then analyzed the elements of each claimed violation and the facts

Tangreti will make pleading and litigating cases in which there is anything less than incontrovertible, pre-suit proof of "vanilla" supervisory personal involvement (i.e., direct participation) in a constitutional violation vastly more difficult and in many cases impossible