(dissenting in part, with whom Nolan and O’Con-nor, JJ., join). I agree with the court that the trial judge did not err in denying Driscoll’s motions for a separate trial and for a mistrial. However, because I conclude that: the supervisory defendants were immune from suit under Federal law for the acts complained of; the Commonwealth is immune under G. L. c. 258, § 10 (b) (1986 ed.); and the evidence was insufficient to prove that the supervisory defendants were either reckless or callously indifferent to Dobos’s rights, I respectfully dissent.
1. Qualified immunity under § 1983. The court concludes that the supervisory defendants were properly denied qualified immunity under 42 U.S.C. § 1983 (Supp. III 1979), because, even if disciplining a subordinate officer is a discretionary act, the cases cited clearly established, prior to 1978, that Driscoll’s supervisors could be liable under § 1983 for their own conduct that resulted in constitutional violations by him. Ante at 646-650. The court misapplies the “clearly established” test because that test depends “substantially upon the level of generality at which the relevant ‘legal rule’ is . . . identified.” Anderson v. Creighton, 483 U.S. 635, 639 (1987). “[T]he right the official is alleged to have violated must have been ‘clearly established’ in a more particularized, and hence more relevant sense.” Id.1
*660What is required by Anderson v. Creighton, supra, therefore, is a consideration whether it was clearly established that imposition of an insufficient degree of discipline would constitute a violation of the plaintiffs’ rights. Considered in this light it is clear that the action of any of the supervisors was not particularized enough to give rise to liability. At the time of events complained of, no case had established liability for a supervisor’s inadequate response as contrasted with failure to act at all. Neither the court nor Dobos points to any decision imposing liability for failure to impose a greater degree of discipline. This is so, I submit, because a decision to impose discipline can, by its very nature, only be made on a case-by-case basis. In addition, disciplinary procedures must not violate an officer’s due process rights. See O’Hara v. Commissioner of Pub. Safety, 367 Mass. 376, 382-384 (1975). Moreover, determining the appropriate punishment would seem to require assessing an officer’s entire service record and taking into account not only the officer’s prior meritorious acts but also the officer’s prior blameworthy acts.
In Benson v. Allphin, 786 F.2d 268, 276 (7th Cir.), cert. denied, 479 U.S. 848 (1986), in discussing a State employer’s qualified immunity defense, the court stated that courts have to balance the employer’s and employee’s competing interests and “[i]t would appear that, whenever a balancing of interests is required, the facts of the existing caselaw must closely correspond to the contested action before the defendant official is subject to liability under [Harlow v. Fitzgerald, 457 U.S. 800 (1982)].” See Warner v. Grahm, 845 F.2d 179, 183 (8th Cir. 1988). But see Moore v. Tri-City Hosp. Auth., 696 F. Supp. 1496, 1503-1505 (N.D. Ga. 1988). The supervisory defendants in this case had to consider not only that the public’s civil rights should be protected, but also that Trooper Driscoll receive only that degree of discipline that his misconduct warranted.
The decisions cited by the court do not establish that the defendants would be liable in this context. In Carter v. Carlson, 447 F.2d 358 (D.C. Cir. 1971), rev’d on other grounds sub nom. District of Columbia v. Carter, 409 U.S. 418, modified, *661489 F.2d 1272 (D.C. Cir. 1973), on which the court relies heavily, the United States Court of Appeals for the District of Columbia Circuit did not reach the merits of the plaintiff’s claim, but simply reversed the dismissal of the complaint for failure to state a claim. Furthermore, the Carter decision took account of the fact that the Supreme Court had not yet read into § 1983 a broad immunity “for all government officers exercising discretionary functions.” Id. at 365. Subsequently, and prior to the acts complained of here, the Supreme Court decided that qualified immunity exists for government officials other than legislators and judges. Procunier v. Navarette, 434 U.S. 555 (1978) (prison officials). Wood v. Strickland, 420 U.S. 308 (1975) (school officials). Scheuer v. Rhodes, 416 U.S. 232 (1974) (State executive branch officials). Even if Carter can be construed as giving notice to law enforcement officials regarding their potential § 1983 liability, the Procunier, Wood, Scheuer expansion of the governmental qualified immunity defense certainly pointed in the opposite direction. The Carter case also predates the Supreme Court’s decision in Rizzo v. Goode, 423 U.S. 362 (1976), and thus any value it may have had in determining a supervisor’s potential § 1983 liability was virtually eliminated by the Court’s holding that a mere “failure to act” on the part of supervisory officials in the face of constitutional violations by subordinate officers is not a sufficient basis for establishing § 1983 liability. Id. at 375-376. See Hays v. Jefferson County, 668 F.2d 869, 873 & n.2 (6th Cir.), cert. denied, 459 U.S. 833 (1982) (recognizing the limited value of Carter v. Carlson in light of Rizzo v. Goode).
Roberts v. Williams, 456 F.2d 819 (5th Cir.), cert. denied sub nom. Roberts v. Smith, 404 U.S. 866 (1971), also fails to support the liability of the supervisory defendants in this case. In Roberts, the liability of the prison farm superintendent for failing to train and supervise a guard rested on the superintendent’s total failure to provide any training to the guard concerning the proper handling of the firearm entrusted to him. Id. at 822-823. Roberts offered supervisory officials no guidance as to their potential liability should the amount of training and supervision provided ultimately prove to be inadequate.
*662Dewell v. Lawson, 489 F.2d 877 (10th Cir. 1974), and Sims v. Adams, 537 F.2d 829 (5th Cir. 1976), decided prior to Anderson v. Creighton, supra, also fail to provide a basis for concluding that supervisory liability exists here. In both cases, the courts merely reversed trial court decisions dismissing complaints for failure to state a claim. In addition, unlike this case, the plaintiffs in both Dewell and Sims alleged a total failure by police officials to take action, e.g., Dewell, supra at 880 (failure to establish regulations regarding diabetic prisoners); Sims, supra at 831-832 (failure to discipline subordinate officer). Even assuming these cases establish that police supervisors may be liable under § 1983 for their failure to act when they had a duty to do so, the cases do not clearly establish the incorrectness of the defendant supervisors’ conduct here. As the Supreme Court has stated, officials are not “charged with predicting the future course of. . . [the] law.” Pierson v. Ray, 386 U.S. 547, 557 (1967).
Moreover, I am led to the conclusion in favor of the supervisors’ immunity because at the time of these events supervisory officials were not clearly liable for failing to supervise their subordinates. See, e.g., Rizzo v. Goode, supra at 375-376; Kostka v. Hogg, 560 F.2d 37, 40 (1st Cir. 1977) (“[a] police chief is under no constitutional duty to take positive action to reduce the incidence of unconstitutional conduct by police officers on the beat”); Leite v. Providence, 463 F. Supp. 585, 589 (D.R.I. 1978) (“[t]he vast majority of those courts which have considered the issue [degree of culpability required under § 1983] have not held high level officials liable for failure to supervise, correct and control the actions of their subordinates”); Delaney v. Dias, 415 F. Supp. 1351, 1353 (D. Mass. 1976), and cases cited. See generally Crocker, When Cops are Robbers — Municipal Liability for Police Misconduct Under Section 1983 and Bivens, 15 U. Rich. L. Rev. 295 (1981). Just two years prior to the acts complained of in this case, the court in Delaney, supra, stated: “Public officials cannot be held liable for monetary damages under [§] 1983 purely for an alleged failure to exercise proper supervisory control over their subordinates. Many cases, in the specific context of alleged *663abuse of police power, have held offending officers themselves liable, while dismissing complaints against supervisors who had no personal involvement in the alleged misconduct.” Without a definitive ruling from the Supreme Court, the disagreement among the lower Federal courts regarding the scope of a supervisor’s liability pursuant to § 1983 for the acts of his or her subordinates and the lack of decisions regarding a supervisor’s liability after he or she takes disciplinary or supervisory action, can only be said to demonstrate that the law in this area was not “clearly established.” Therefore, I conclude that the supervisory defendants were improperly denied qualified immunity.
2. The Commonwealth’s immunity under G. L. c. 258, § 10 (b). The court holds that a supervisor’s disciplinary decisions, after an investigation into and determination of wrongdoing by a subordinate officer, is not a “discretionary function,” within the meaning of G. L. c. 258, § 10 (b), and thus, the Commonwealth is liable for the supervisors’ acts. Since I believe that a supervisor, in determining appropriate punishment on an individual, case-by-case basis, is exercising a “discretionary function,” I conclude that the Commonwealth is immune from suit under G. L. c. 258, § 10 (b), in these circumstances.
The court seeks to distinguish the supervisory decision making in this case from that in Cady v. Plymouth-Carver Regional School Dist., 17 Mass. App. Ct. 211 (1983), where the Appeals Court held that “[mjanagement of student imbroglios, student discipline, and school decorum fall readily within the discretionary function exception to the Tort Claims Act” (emphasis added). Id. at 217. Previously, we have cited Cady when discussing the discretionary function exception contained in G. L. c. 258, § 10 (b). See, e.g., A.L. v. Commonwealth, 402 Mass. 234, 245 (1988); Pina v. Commonwealth, 400 Mass. 408, 412-413 (1987); Patrazza v. Commonwealth, 398 Mass. 464, 468 (1986); Kelley v. Rossi, 395 Mass. 659, 665 n.6 (1985). The court seeks to avoid the obvious applicability of Cady by stating that the jury could have found that reinstating Driscoll was contrary to an unwritten existing policy. The result of the court’s reading of Cady, as I see it, is that the *664degree of discipline imposed by a supervisor is within the supervisor’s discretion unless the jury decides that some unwritten policy would call for another form of discipline. I submit that is the same as saying that the jury can decide whether the degree of discipline imposed was appropriate. In such circumstances the discretionary function exception disappears. Because I believe that the process by which school administrators impose student discipline is strikingly similar to the process by which police supervisors discipline subordinate officers, I would hold that a police disciplinary process is also a “discretionary function” for purposes of the Massachusetts Tort Claims Act.
In determining that the school officials were acting pursuant to a “discretionary function,” the Appeals Court stated: “Sizing up the gravity of a school yard feud, deciding how best to defuse it, and maintaining school discipline involve judgment, experience, and the intuition which is the sum of experience.” Cady, supra at 216. See Wightman v. Methuen, 26 Mass. App. Ct. 279, 280 (1988). The court went on to say that “[standards for dealing with bullying, or other manifestations of disruptive student behavior, must be as variable as the personalities of the students and the settings in which disruption occurs.” Cady, supra. A decision to discipline a police officer for infractions also involves a supervisor’s judgment, experience, and intuition and the punishment imposed for a particular infraction will also be as variable as the officer’s personality and the circumstances in which the infraction occurs.2 See Pina *665v. Commonwealth, 400 Mass. 408, 415 (1987) (discretionary decisions are “those in which a government official determines what action to take based on an individual, case-by-case analysis and in which his decision includes elements of judgment and discretion”), quoting Bartel v. Federal Aviation Admin., 617 F. Supp. 190, 196 n.29 (D.D.C. 1985). The evidence which was presented to the jury regarding State police disciplinary procedures was that after completing an investigation the troop commander “make[s] a judgment based upon the information that was available to him” (emphasis added). A supervisor’s “judgment” based upon the particular circumstances of an incident should not fall within the category of nondiscretionary acts for which the Commonwealth could be liable.
Furthermore, I conclude that imposing tort liability in this situation will jeopardize the quality and efficiency of a disciplinary process. The “ ‘quality and efficiency of the govermental process’ requires, at a minimum, impartiality on the part of State employees.” Pina v. Commonwealth, supra at 413, quoting Whitney v. Worcester, 373 Mass. 208, 219 (1977). Human nature indicates that, confronted with a “close call,” the supervisor will impose harsher punishment for fear of judicial second guessing, and the imposition of liability, and thus “the impartiality of individual determinations [would] be threatened.” Id.
It should be understood that what is significant is the nature of the disciplinary process itself and not the unfortunate misconduct of Driscoll which followed the imposition of discipline in this case, because “[u]nder the [Tort Claims Act], the exception applies even where there has been abuse of discretion.” Wightman, supra at 281. See Cady, supra at 215 (“It is the nature of the governmental act, not the care with which it is performed, that determines whether the exception applies”). See also Dalehite v. United States, 346 U.S. 15, 35 (1953); Patrazza v. Commonwealth, 398 Mass. 464, 470 & n.3 (1986). Because police disciplinary proceedings are “characterized by the high degree of discretion and judgment involved in weighing alternatives and making choices,” Whitney v. Worcester, *666373 Mass. 208, 218 (1977), I would hold that it falls within the discretionary function exception contained in G. L. c. 258, § 10 (b). Thus, the Commonwealth’s motions for a directed verdict and judgment notwithstanding the verdict on this issue were improperly denied.
3. The supervisory defendants’ liability under 42 U.S.C. § 1983. The court apparently concedes that the supervisors’ liability would require a showing of more than mere negligence. In light of Daniels v. Williams, 474 U.S. 327, 328 (1986), and Davidson v. Cannon, 474 U.S. 344, 347-348 (1986), as interpreted in Germany v. Vance, 868 F.2d 9, 17-18 (1st Cir. 1989), I cannot agree that the culpability requirement has been met.
The supervisory defendants will be liable for the plaintiff’s injuries, only if (1) the supervisory defendants acted under color of State law, and (2) their conduct deprived him of rights, privileges, or immunities secured by the Constitution or laws of the United States. See Parratt v. Taylor, 451 U.S. 527, 535 (1981); Voutour v. Vitale, 761 F.2d 812, 819 (1st Cir. 1985), cert. denied sub nom. Saugus v. Voutour, 474 U.S. 1100 (1986); Appleton v. Hudson, 397 Mass. 812, 818 (1986).
In this case, the constitutional deprivation relied on consisted of Trooper Driscoll’s excessive use of force and verbal harassment while arresting and detaining Dobos. The gravamen of the plaintiffs’ claim against the supervisory defendants is that their conduct caused Dobos to be subjected to the deprivation because they failed adequately to supervise and discipline Trooper Driscoll. See Oklahoma City v. Tuttle, 471 U.S. 808, 816-817 (1985). In Daniels v. Williams, supra at 328, the Supreme Court stated that “the Due Process Clause is simply not implicated by a negligent act of an official causing an unintended loss of or injury to life, liberty, or property” (emphasis in original). See also Davidson v. Cannon, supra at 347-348 (“lack of care simply does not approach the sort of abusive governmental conduct that the Due Process Clause was designed to prevent”). While it is clear that an intentional deprivation would be actionable, Daniels v. Williams, supra at 331, the Court left open the question whether a lesser culpa*667bility standard would suffice. Id. at 334 n.3 (“this case affords us no occasion to consider whether something less than intentional conduct, such as recklessness or ‘gross negligence,’ is enough to trigger the protections of the Due Process Clause”).
The Court of Appeals for the First Circuit has responded that “[c]oses in this circuit suggest that government officials may be liable for a deprivation of life, liberty, or property without due process if their conduct reflects a reckless or callous indifference to an individual’s rights.” Germany v. Vance, supra at 17-18. The court defined this culpability standard by stating that “[a]n official displays such a reckless or callous indifference when it would be manifest to any reasonable official that his conduct was very likely to violate an individual’s constitutional rights” (emphasis added).3 Id. at 18. In that court’s view a reckless or callous indifference standard exemplifies “the arbitrary exercise of the powers of government,” which the due process clause was designed to protect against, while “[n]egligence ... no matter how ‘gross’ it may be [only] exemplifies lack of care. ” Id. at 18. Thus the question *668becomes whether there was sufficient evidence to conclude that each supervisory defendant believed (or reasonably should have believed) that his conduct was very likely to result in Trooper Driscoll’s violation of the plaintiff’s constitutional rights. See id. at 18 n. 10.
In reviewing the evidence, it is important to note that the plaintiffs failed to introduce any evidence that the four supervisory defendants maintained a custom, policy, or practice of failing to supervise or discipline Massachusetts State troopers from which the jury could infer that they encouraged, condoned, acquiesced in, or deliberately disregarded instances of civil rights violations by troopers under their command. See generally Voutour v. Vitale, supra at 820. Similarly, the plaintiffs failed to produce any evidence that excessive use of force or verbal harassment by Massachusetts State troopers was customary or prevalent, from which the jury could infer a policy authorizing or encouraging such action. See id. It was also undisputed that the supervisory defendants took disciplinary action on all substantiated complaints involving Trooper Driscoll. It is important to note, especially in regard to whether the defendants reasonably believed that putting Trooper Driscoll back on highway duty in 1977 was very likely to result in his committing constitutional violations, the fact that none of the prior complaints lodged against Trooper Driscoll involved false arrest, excessive force, or other “civil rights violations.”4 Without evidence of widespread abuses by other troopers, and the fact that a supervisor’s liability cannot be predicated simply upon a respondeat superior theory, Monell v. Department of Social Servs. of the City of N.Y., 436 U.S. 658, 663 n.7 (1978), the supervisory defendants’ liability must rest solely on whether their returning Trooper Driscoll to road *669duty in 1977 without imposing probationary conditions was very likely to violate Dobos’s constitutional rights.
As the court points out the evidence regarding the defendant Robert Hunt was that, while Trooper Driscoll was under Hunt’s command, Hunt disciplined Driscoll for what Hunt described as five “minor infractions.” Ante at 640. Only two of these infractions involved complaints by motorists, and only one of the complaints was substantiated through an internal State police investigation. Hunt’s culpability is said to rest on his failure to investigate Driscoll’s disciplinary history before determining appropriate “discipline” even though he knew Driscoll’s former captain once recommended that Driscoll be removed from the road. However, Hunt look some type of disciplinary action on each complaint. Furthermore, the evidence regarding Hunt’s opinion that Driscoll was not fit to be on the highway on the date of the Dobos incident and his recommendation that Driscoll be enrolled in an “attitude awareness program,” is irrelevant because both observations were made by taking into consideration the Dobos incident, and thus do not indicate anything about the propriety of Hunt’s actions prior to September 4, 1978, much less that Hunt’s conduct was very likely to violate Dobos’s constitutional rights. Hunt’s failure to investigate fully Driscoll’s history does not, standing alone, provide a sufficient basis to impose § 1983 liability. Compare Stokes v. Bullins, 844 F.2d 269, 274-275 (5th Cir. 1988) (there was no gross negligence in town’s failure fully to investigate police officer’s arrest record before hiring him because “to hold the town . . . liable here would march municipal liability too far down the path toward liability based on negligence”). Lopez v. Houston Independent School Dist., 817 F.2d 351, 354 (5th Cir. 1987) (there was no evidence to support allegation that supervisors were grossly negligent or deliberately indifferent to student’s constitutional rights for failing to train properly bus drivers without evidence of a “widespread problem mandating an official response”).
The evidence of culpability against the remaining supervisory defendants is even more inadequate. The defendant Canty, unaware that Driscoll had been previously removed from road *670duty, testified that he knew of the two motorists’ complaints in 1978, and agreed with Hunt that, in regard to one of the complaints, a verbal reprimand was sufficient punishment.5 Canty’s culpable conduct, like Hunt’s, was his failure to investigate Driscoll’s disciplinary history. However, Canty’s failure in light of his lack of knowledge of Driscoll’s prior conduct, would not indicate “to any reasonable official that [such] conduct was very likely to violate an individual’s constitutional rights.” Germany v. Vance, supra at 18. Compare Stokes v. Bullins, supra. Similarly, the defendant Trabucco’s sole culpable act was that he recommended to the Commissioner of Public Safety that Driscoll be reinstated to road duty after serving a ten-month suspension because of inappropriate log entries and habitual tardiness. Again, Trabucco made this recommendation without determining, through his own investigation, whether Driscoll should have been put back on the road. Finally, the defendant Kehoe’s only conceivable culpable conduct was that he reinstated Driscoll to road duty on Trabucco’s recommendation.6 The plaintiffs failed to produce any evidence that Kehoe was aware of any of the complaints which occurred from the time Driscoll was reinstated until the time of the Dobos incident.
While the plaintiffs concede that the supervisory defendants disciplined Trooper Driscoll, they argue that the discipline was inadequate and that when Driscoll was returned to road duty in 1977, it should have been with probationary conditions and other restrictions which would prevent future misconduct. However, inadequate discipline sounds in negligence which cannot support a due process violation. Compare Williams v. Boston, 784 F.2d 430, 434 (1st Cir. 1986) (complaint alleging *671that city provided inadequate security at high school football game sounded in simple negligence and thus could not support due process violation). Also, the plaintiffs failed to introduce any evidence on the adequacy of the supervision and discipline imposed and whether stricter discipline was warranted. See Voutour v. Vitale, 761 F.2d 812, 821-822 (1st Cir. 1985) (expert testimony that the defendant city’s in-service firearms training was inadequate created an issue of fact precluding summary judgment).
Based on this record I cannot agree that a jury could properly find that each of the supervisory defendants acted recklessly or was callously indifferent to the plaintiff’s constitutional rights even if they had been properly instructed. Even if I agreed with the court’s conclusion that “[t]he probability of an incident such as that here in issue . . . could have been foreseen easily,” ante at 658, that does not suffice because mere “probability” is not enough. The constitutional violation must have been “very likely” to occur. I do not think that it was.
For the reasons stated, I respectfully dissent.
The Supreme Court also stated that, if the parties could characterize the relevant legal rule in very general terms, they “would be able to convert the rule of qualified immunity that our cases plainly establish into a rule of virtually unqualified liability simply by alleging violation of extremely abstract rights.” Anderson v. Creighton, supra at 639.
Disciplinary procedures and supervisory responsibilities have been recognized to be “discretionary.” See, e.g., Carter v. Carlson, 447 F.2d 358, 363 (D.C. Cir. 1971) (“[t]he functions of training, supervising and controlling police officers subsume a variety of distinct duties .... No doubt some of these duties should be regarded as discretionary for the purposes of official immunity, but others are clearly ministerial for that purpose”). See also Davis v. Scherer, 468 U.S. 183, 196 n.14 (1984) (“the decision to discharge an employee clearly is discretionary”).
I do not reach the question whether the jury instructions were in accord with this standard, see ante at 655 n.12. The issue is, in my mind, open to serious question. The supervisory defendants requested instructions, citing Daniels v. Williams, supra and Davidson v. Cannon, supra, that negligence was an insufficient basis for § 1983 liability and that the plaintiffs must prove that the supervisory defendants acted in a “callous, intentional, or deliberately indifferent manner.” The judge charged that, if the “failure to supervise or discipline him constituted gross negligence amounting to conscious indifference to the safety of the public,” then the defendants would be liable. The remainder of the jury instructions are replete with references to the supervisors’ “negligence,” which easily could have misled the jury into believing that negligence was a sufficient basis for § 1983 liability. For example, in explaining the special question regarding causal negligence the judge instructed, “[T]he question is did [the supervisory defendants], by their act or omission, violate that duty by acting in violation of a standard of ordinary care.” See Daniels v. Williams, supra at 332 (“[L]ack of due care suggests no more than a failure to measure up to the conduct of a reasonable person. To hold that injury caused by such conduct is a deprivation within the meaning of the Fourteenth Amendment would trivialize the centuries-old principle of due process of law”). Also, the judge refused the supervisory defendants’ request to elaborate on the difference in culpability between simple negligence and gross negligence as defined in the instructions, and refused to instruct the jury that they could not find the supervisory defendants liable on a respondeat superior theory.
The plaintiffs do not appear to take issue with the discipline imposed on Driscoll as a result of the one incident which involved physical violence. In response to a substantiated complaint by Driscoll’s girl friend that he had assaulted her and her children Driscoll was removed from highway duty. Driscoll was returned to road duty only after a psychiatrist certified that he was fit for contact with the public, and he was subject to strict probationary conditions.
The investigation into the second complaint was not complete at the time of the Dobos incident, and therefore neither Hunt nor any of the other supervisory defendants could have “imposed discipline” on that complaint.
The court’s reliance on Kehoe’s removal of Driscoll from highway duty in 1976 and his subsequent reinstatement in 1977 without any probationary conditions is misplaced since that discipline was imposed because of Driscoll’s inappropriate log entries and habitual tardiness and not because of any motorist’s complaint. See note 4, supra.