Nahmod Law

Introduction

As in ordinary tort law, a person who is sued under section 1983 for damages must be shown to be responsible in order to held liable. In other words, that person must have caused the plaintiff’s constitutional deprivation. But in certain section 1983 cases involving impermissible motivation, such as public employee equal protection and First Amendment cases, there are complications arising out of the burden-shift rule of Mt. Healthy Bd. of Education v. Doyle, 429 U.S. 274 (1977).

Typical Fact Pattern

Suppose a public employee is discharged and believes the discharge was impermissibly motivated either because of race (equal protection) or because what he or she said (First Amendment). It turns out that even if the plaintiff can prove this, he or she will not necessarily win on the merits and recover damages because of the Mt. Healthy burden-shift rule.

How the Mt. Healthy Burden-Shift Rule Works

Under Mt. Healthy, (1) the plaintiff has the burden of proving by a preponderance of the evidence that the impermissible motive was a substantial factor (not the but-for cause or the sole cause) for the discharge. Once the plaintiff does this, the plaintiff has made out a prima facie case and will prevail on the merits (2) unless the defendant can prove by a preponderance of the evidence that there was a permissible factor–such as insubordination, incompetence or the like–that also played a role in the discharge and–here’s the key– (3) the plaintiff would have been discharged anyway even in the absence of the impermissible motive. Read the rest of this entry »

Introduction

By now, all of us know that Justice Stevens has announced that he will step down immediately after the last day of the 2009 Term (in late June or early July 2010). In this post, I want to call attention to Justice Stevens’s unheralded position advocating respondeat superior liability for section 1983 local government liability.

Justice Stevens and Local Government Liability

This position was articulated by Justice Stevens, dissenting in Oklahoma City v. Tuttle, 471 U.S. 808, 834-844 (1985), and concurring in part and concurring in the judgment in Pembaur v. Cincinnati, 475 U.S. 469, 489-491 (1986). Essentially, he argued that the Court got it wrong in the seminal decision in Monell v. Dept. of Social Services, 436 U.S. 658 (1978), where the Court held, rejecting respondeat superior liability, that a local government could only be liable for damages under section 1983 when a plaintiff’s constitutional deprivation was brought about by an official policy or custom of the local government.

In his view, respondeat superior liability was an appropriate basis for local government liability for several reasons. First, in 1871 when section 1983 was enacted, local governments were indeed vicariously liable for many of their employees’ acts. And second, section 1983′s “subjects, or causes to be subjected” language was not inconsistent with respondeat superior liability.

His Position Exhumed

In Board of County Commissioners of Bryan County v. Brown, 520 U.S. 397 (1997), Justice Breyer, joined by Justices Stevens and Ginsburg, argued that in light of the increasing complexities of section 1983 local government liability, it was time to reexamine Monell‘s rejection of respondeat superior liability and its embrace of the official policy or custom requirement.

Justice Breyer maintained that Justice Stevens’s position was looking increasingly attractive because Monell had “produced an highly complex body of interpretive law.”  He argued that “the legal prerequisites for reexamination of an important statute are present here.” Among other things, the soundness of the original principle distinguishing respondeat superior liability from the official policy or custom requirement was doubtful. Also, this requirement had created a body of law that was “neither readily understandable nor easy to apply.”

Furthermore, these complexities had made it difficult for local governments to predict just when they would be held liable. Finally, many local government indemnification statutes provided for payments to victims of constitutional violations that were similar to those that would be provided in a respondeat superior regime.

Observations

Not surprisingly, Justice Breyer’s call in Bryan County for a reexamination of Monell fell on deaf ears in 1997. It is even less likely in 2010  that the Court will ease the requirements for section 1983 local government liability given its continuing, almost obsessive, concern with avoiding section 1983  respondeat superior liability. See, for example, Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), which has been the subject of several posts, where the Court on its own changed the requirements for constitutional tort supervisory liability because of this concern.

Nevertheless, I wonder what the world of section 1983 local government liability would have looked like had the Court in Monell not rejected respondeat superior liability but instead adopted Justice Steven’s position.

Introduction

Readers of this blog will recall that, as discussed in a prior post, the Court last Term held in Van De Kamp v. Goldstein, 129 S. Ct. 855 (2009), that supervisory prosecutors charged with failing to train prosecutors in connection with the proper use in criminal trials of jailhouse informants were absolutely immune from damages liability in their individual capacities, despite the fact that this function was administrative in nature.  And they will also recall, as discussed in a different post, that the Court granted certiorari in another prosecutorial immunity case, Pottawattamie County v. McGhee, 129 S. Ct. 2002 (2009), only to dismiss when the case was settled after oral argument.

The Supreme Court recently granted certiorari in a third case involving prosecutors and § 1983 liability. Connick v.Thompson, No. 09-571, granting cert in Thompson v. Connick,  578 F.3d 293 (2009), deals with the liability of a prosecutor’s office for an alleged failure to train prosecutors in connection with their responsibilities under Brady v. Maryland, 373 U.S. 83 (1963), to turn over possibly exculpatory evidence to a criminal defendant. Connick raises issues of local government liability for failure to train arising out of Court’s seminal failure to train decision in City of Canton v. Harris, 489 U.S. 378 (1989) and the related decision in Board of County Commissioners of Bryan County v. Brown, 520 U.S. 397 (1997).

The Claim and Issues in Connick

The § 1983 plaintiff was convicted of murder and spent fourteen years on death row for a crime that he did not commit, allegedly because prosecutors did  not turn over to his attorney a lab report in a related case in which he had previously been convicted of attempted aggravated armed robbery. This lab report indicated that the perpetrator of the attempted armed robbery had type B blood, while the plaintiff had type O blood. Because of that conviction, the plaintiff did not testify in his own defense at his murder trial, where he was convicted. Many years later, the lab report that the prosecutors had failed to turn over was discovered, with the result that, in 1999, plaintiff’s attempted armed robbery conviction was vacated and, in 2002, his murder conviction was overturned. A subsequent murder retrial in 2003, at which plaintiff testified in his defense, resulted in a not guilty verdict.

He then sued the prosecutor’s office for damages under § 1983, in essence making a local government liability failure to train claim regarding proper training under Brady, and a jury awarded him $14 million. The district court affirmed and a panel of the Fifth Circuit affirmed in a decision later vacated by the Fifth Circuit when it granted en banc review. However, since the en banc Fifth Circuit (in three opinions) was evenly divided, the district court’s decision was affirmed.

The basis of the jury verdict and district court judgment was twofold. First, the district attorney in his official capacity (meaning the prosecutor’s office) was deliberately indifferent to an obvious need to train prosecutors regarding their obligations under Brady.  And second, the lack of Brady training was the moving force behind plaintiff’s constitutional injury. The en banc Fifth Circuit divided evenly on each of these findings.

The Court granted certiorari to decide the following Question Presented: “Does imposing failure-to-train liability on a district attorney’s office for a single Brady violation contravene the rigorous culpability and causation standards of Canton and Bryan County [where there is no history of similar Brady violations]? Read the rest of this entry »