In 1978, the Supreme Court held in Monell v. Department of Social Services of New York that municipalities and local governmental entities can be held liable under Section 1983 if their policies or customs inflict a constitutional injury.  Nine years later, in City of Canton v. Harris, the Court made clear that a governmental entity can be held liable under Section 1983 for its failure to train employees only if the plaintiff can prove "deliberate indifference" to an obvious risk that constitutional violations will directly result from the policy or custom.  In so holding, the Court discussed two hypothetical scenarios that might meet this standard:  (1) cases in which the policymaker has been alerted to a training problem by a series of prior violations; and (2) cases involving single incidents, in which the need for training is so glaringly obvious that constitutional violations are inevitable.  On October 6, in Connick v. Thompson, the Court will consider whether a district attorney's office may be held liable for failing to train its prosecutors on Brady violations, notwithstanding the fact that the office has no history of prior violations.

Background

In 1985, John Thompson was arrested and charged with murder in New Orleans.  After seeing Thompson's picture in the newspaper, victims of a recent attempted armed robbery came forward to identify Thompson as their assailant.  Anticipating that an armed robbery conviction would keep Thompson from testifying at his murder trial, the Orleans Parish District Attorney's ("DA")'s Office rescheduled the robbery trial to occur before the murder trial.  Approximately one week before that trial, the DA's office tested blood from the pants of one robbery victim and learned that the robber had type B blood.  However, the prosecutors failed to either disclose this information to Thompson or introduce it at trial, where Thompson was eventually convicted.  Fearing impeachment with the robbery conviction, Thompson declined to testify at his murder trial; he was convicted of first-degree murder and sentenced to death.

In 1999, shortly before Thompson was scheduled to be executed, an investigator on his defense team found the buried blood report.  Testing indicated that Thompson in fact had type O blood, and the investigation that followed revealed that an assistant district attorney (and, possibly, other members of the prosecution team) had deliberately withheld the blood report and several other pieces of valuable evidence.  In light of these revelations, Thompson's execution was stayed, the DA's Office chose not to prosecute him again for robbery, and he was acquitted at a new murder trial.

In 2003, Thompson sued the Orleans Parish District Attorney's Office, as well as several individuals in their official capacities.  At the trial on his claim under Section 1983 "“ regarding the wrongful suppression of the exculpatory evidence "“ the jury did not attribute the violation to an unconstitutional Brady policy in the DA's Office.  However, based on its finding that District Attorney Harry Connick had failed, through deliberate indifference, to establish policies and procedures sufficient to protect defendants from Brady violations, it awarded Thompson $14 million in damages.

The Fifth Circuit affirmed, emphasizing the "especially deferential" standard of review due to jury verdicts.  In the panel's view, because Brady violations are "a highly predictable consequence" of failure to train, a pattern of similar violations is not required to show the "deliberate indifference" required by Canton.  Rather, the panel found that Thompson had demonstrated Connick's deliberate indifference to the obvious need to train prosecutors on Brady by proving that the prosecutors were indeed inadequately trained and that Connick knew that failure to train would result in violations.  Thus, Thompson could recover damages under Section 1983

After ordering rehearing en banc, the equally divided Fifth Circuit affirmed over a detailed dissenting opinion from Judge Clement.  The DA's Office filed a petition for certiorari, which was granted on March 22, 2010.

In its opening brief, the DA's Office emphasizes that it would be inappropriate to extend Canton's single-incident liability example to prosecutors.  First, without a history of violations, it is impossible to consciously ignore an obvious need for Brady training because the need to train lawyers on Brady is far from obvious.  All of the hypothetical examples in which liability could be imposed based on a single incident, they note, arise in the context of training police on citizens' constitutional rights.  By contrast, prosecutors are trained professionals, subject to licensing and an ethical regime designed to reinforce their duties as officers of the court, and "“ unlike with police officers "“ a DA may rely on prosecutors' adherence to these standards.  Unless there are strong indications that training is required, a DA cannot be deliberately indifferent in not implementing training.  Thus, under Canton's analytical framework, a DA's office can be held liable for failure to train only when a history of violations alerts the office to a specific problem demanding a targeted solution "“ a scenario that simply did not exist in Orleans Parish.

Second, even if a Section 1983 plaintiff can prove a failure to train, there must be an ironclad connection between the flawed training program and an injury.  Here, the particular assistant district attorney's violation was so obviously an intentional and knowing misdeed that no amount of training would have prevented it.

Third and finally, the DA's Office warns that diluting Canton's rigorous fault standard, which requires deliberate indifference to, and injury of, the rights of citizens, will take a form of municipal liability that was intended to be rare and make it commonplace and "ruinous."   Applied to a DA's office, this "ruinous" liability will extend not only to Brady, but also to prosecutors' decisions on search and seizure, Miranda, expert witnesses, sentencing, and more.  Holding it liable for this single violation, the DA's Office argues, will collapse Section 1983 liability into respondeat superior, punishing offices solely for employing a tortfeasor.

In his brief on the merits, Thompson first contends that the facts of his case meet the criteria outlined in Canton for liability based on a single incident.  Connick knew that many inexperienced prosecutors would come into contact with Brady material, that proper Brady decision-making would require difficult analytical judgments, and that failure to produce such evidence would result in constitutional violations.  Nonetheless, he did not provide any Brady training for prosecutors, and that failure reflects deliberate indifference to the rights of Orleans Parish citizens.  Moreover, the nature of the withheld evidence and the prosecutors' inability to fully explain Brady at trial indicate that the lack of training substantially caused the violation of Thompson's constitutional rights.

Second, Thompson argues that even if the District Attorney's actions do not meet the high standard required for a municipality to be held liable based on a single incident, his particular case is not limited to a single violation of constitutional rights.  Instead, he emphasizes, four prosecutors were involved in the suppression of Thompson's Brady evidence, and those four individuals suppressed multiple pieces of evidence, thereby establishing a pattern of violations.

Third, Thompson emphasizes the absence of a training program at the DA's Office and the inaccuracies in what little information the Office did provide to prosecutors.  In particular, he highlights testimony and evidence reflecting Connick's complete disregard for the need to safeguard the Brady rights of defendants, including Connick's testimony that he stopped "reading law books" in 1974 and evidence that the prosecutors' training manual was both vague and inaccurate on several Brady issues.

Finally, Thompson stresses that the rule espoused by the DA's Office is dangerous:  it would create a blanket exemption unless the plaintiff could show a pattern of violations, thereby effectively requiring that some citizens' rights actually be violated even when deliberate indifference might somehow otherwise be proven.  Nor, Thompson argues, will a ruling in his favor have the negative effects that the DA's Office predicts.  Rather, Connick's deliberate indifference is exactly the type of behavior Canton sought to target, and in the twenty years since Canton there has been no flood of cases seeking to hold municipal entities liable.  The facts of his case, Thompson concludes, "are"”one very much hopes"”unique."

Posted in Connick v. Thompson, Featured, Merits Cases