Connick v. Thompson: New Supreme Court Decision on Local Government Liability for Failure to Train
The Supreme Court finally handed down its decision (PDF) in the important case of Connick v. Thompson, No. 09-571, on March 29, 2011, almost a year after I blogged about Connick in light of the Court’s grant of certiorari. Readers should consult my post of April 6, 2010, for relevant doctrinal and other background information.
In Connick, a 5-4 decision with an opinion by Justice Thomas, the Court effectively held that local government liability for failure to train cannot be based on a single incident, even in the face of an otherwise persuasive claim of deliberate indifference because the need for training is “obvious.” Instead, the plaintiff must also show a pattern of similar constitutional violations. Justice Scalia, joined by Justice Alito, concurred. Justice Ginsburg dissented, joined by Justices Breyer, Sotomayor and Kagan.
The Facts and Issue
The § 1983 plaintiff, Thompson, was convicted of murder and spent fourteen years on death row for a crime that he did not commit 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 v. Maryland, 373 U.S. 83 (1963), and the due process requirement to turn over exculpatory evidence to criminal defendants. A jury awarded him $14 million, which was upheld by the district court. On appeal, 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, Connick, the district attorney, was a policymaker (thus representing the prosecutor’s office) who 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]?” As noted, the Court answered YES.
Even though there had apparently been no Brady training of prosecutors before 1985 when plaintiff was convicted of aggravated armed robbery, the Court rejected the plaintiff’s argument that this was one of those rare cases hypothesized in City of Canton v. Harris, 489 U.S. 378, 409 (1989), where a pattern of constitutional violations is not necessary to prove deliberate indifference because the need for training is “so obvious.” The Court emphasized the stringency of the deliberate indifference requirement for local government liability for failure to train, arising out the concern with avoiding respondeat superior liability under section 1983. See generally Monell v. Department of Social Services, 436 U.S. 658 (1978), and Nahmod, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 Ch. 6 (4th ed. 2010)(CIVLIBLIT at Westlaw).
According to the Court, prosecutors, unlike police officers going through training in the use of firearms and deadly force to stop fleeing felons (the example in City of Canton), were already trained in law in law school and had to pass a bar exam before they could practice. In addition, there are continuing legal education requirements imposed on all lawyers. Thus, “recurring constitutional violations are not the ‘obvious consequence’ of failing to provide prosecutors with formal in-house training about how to obey the law.” Moreover, it was undisputed in this case that prosecutors were “familiar with the general Brady rule” in marked contrast to armed police officers who have no prior knowledge at all about the constitutional use of deadly force. Under these circumstances, the absence of formal training in Brady was not dispositive: this was not like the City of Canton hypothetical.
The Court concluded: “To prove deliberate indifference, Thompson needed to show that Connick was on notice that, absent additional specified training, it was ‘highly predictable’ that the prosecutors in his office would be confounded by those [Brady] gray areas and make incorrect Brady decisions as a result. In fact, Thompson had to show that it was so predictable that failing to train the prosecutors amounted to conscious disregard for defendants’ Brady rights.” (emphasis in original). And Thompson did not do so.
Justice Scalia, joined by Justice Alito, concurred for the purpose of responding to the arguments of the dissenters. Justice Scalia accused the dissenters of a “puzzling” and “lengthy” excavation of the trial record in a misguided attempt to broaden the scope of failure to train liability. He also rejected their contention that the defendant acquiesced in the plaintiff’s single incident theory. Furthermore, he criticized the dissenters’ position that, with proper training, at “surely at least one” of the prosecutors would have turned over the exculpatory evidence. Finally, he suggested that any possible Brady violation in this case ” was surely on the very frontier of our Brady jurisprudence.”
Justice Ginsburg’s dissent, joined by Justices Breyer, Sotomayor and Kagan, argued that the evidence submitted to the jury indicated that the “conceded, long-concealed prosecutorial transgressions were neither isolated nor atypical.” From the top down, in the view of the dissent, prosecutors inadequately addressed their Brady obligations. Accordingly, a jury could have found that such inattention was “standard operating procedure” in Connick’s office. For this reason, City of Canton‘s deliberate indifference standard was met here, even though there was no proof of a pattern of similar constitutional violations: the resulting Brady violation was the obvious consequence of the inadequate training.
Furthermore, Connick had “effectively” conceded that his office’s Brady training was inadequate. Also, at the time of Thompson’s trial, Louisiana did not require continuing legal education for lawyers, thereby placing responsibility on Connick’s office for keeping prosecutors current on legal developments. Moreover, the Court’s reliance on law school and bar admission requirements “blinks reality” and was belied by the facts in this case. This case therefore fit well within City of Canton‘s category of cases in which the need for training is so obvious that the failure to provide it can be said to demonstrate deliberate indifference proof a prior pattern was not necessary.
1. The Question Presented for review by the defendant was very well crafted to attract the Court’s attention at the certiorari stage. The Court has long been concerned about the (mis)use of a single constitutional violation to impose liability on local governments for failure to train. Connick presented the Court with the opportunity to bury the City of Canton hypothetical once and for all, an opportunity that the Court seized.
2. Connick involved the training of prosecutors. But the Court’s reasoning makes abundantly clear that plaintiffs in all failure to train cases will have to show a pattern of prior constitutional violations in order to demonstrate deliberate indifference.
3. As I predicted in my post of April 6, 2010, the Court was very likely to continue its quest to limit section 1983 local government liability in failure to train case, which Connick in fact did. Connick was therefore no great surprise.
4. With Connick, the Court has extended protection from liability to all levels of prosecution. Clearly, the individual prosecutors in Connick who failed to discharge their Brady obligations are absolutely immune from damages liability in their individual capacities because their conduct was advocative in nature. See Chapter 7 of my treatise.
Connick himself as supervisor is similarly absolutely immune from damages liability personally. See Van De Kamp v. Goldstein, 129 S. Ct. 855 (2009), which I blogged about previously, where the Court held that supervisory prosecutors charged with failing to train prosecutors in connection with the proper use in criminal trials of jailhouse informants are absolutely immune from damages liability in their individual capacities, despite the fact that this function is administrative in nature.
And finally, Connick has made it much more difficult to make out a prima facie case against a prosecutor’s office for failure to train.