Nahmod Law

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]?

Discussion

The Court and the circuits have struggled with local government liability for failure to train since City of Canton, which held that “the inadequacy of police training may serve as the basis of § 1983 liability only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact.” The Court articulated this standard of fault because of its concern with avoiding respondeat superior liability under § 1983. Consider its repeated warnings that a single incident will ordinarily not suffice for failure to train liability.This concern with avoiding respondeat superior liability was even more obvious in Bryan County where the Court, faced with an employment decision by a policymaker that allegedly led to the plaintiff’s constitutional deprivation, tightened up the proximate cause requirement in local government failure to train cases and insisted that a plaintiff’s constitutional deprivation must be the plainly obvious consequence of the local government’s (or policymaker’s) deliberate indifference.

The Court’s decision next Term in Connick will likely result in a further tightening up of the requirements for local government liability for failure to train, whether in connection with deliberate indifference or causation or both.

It is interesting to note that there appears to be a causation issue not discussed in the various lower court opinions in Connick. The plaintiff sought and received damages for his wrongful conviction and imprisonment for murder. But the failure to train and Brady violation occurred in connection with his prior conviction for attempted armed robbery. It was this failure to train and Brady violation that allegedly led to his attempted armed robbery conviction which in turn led to his not taking the stand in the murder trial which then resulted in his murder conviction and imprisonment.

Question: Was plaintiff’s not taking the stand and the resulting murder conviction and imprisonment really the plainly obvious consequence of the failure to train prosecutors about the requirements of Brady and the Brady violation in the attempted armed robbery case?