Nahmod Law

The Decision

In 2009, the Court handed down Van De Kamp v. Goldstein, 129 S. Ct. 855 (2009), a significant decision that expanded the scope of prosecutorial immunity to cover supervisory prosecutors in certain circumstances.  

Van De Kamp dealt with the applicability of prosecutorial immunity to a former district attorney and a former deputy district attorney who were sued for allegedly failing to develop policies and procedures, and failing to adequately train and supervise their subordinates, as to their constitutional obligation under Brady v. Maryland and Giglio v. United States to ensure that information on jailhouse informants was shared among prosecutors. The plaintiff, after imprisonment for twenty-four years for murder, succeeded in obtaining habeas corpus relief and was released. Thereafter, he claimed that a jailhouse informant testified falsely at his murder trial regarding (1) the plaintiff’s supposed confession to the murder and (2) the informant’s not having received benefits in exchange for his testimony against plaintiff. He further alleged that the fact that this witness was an informant who received benefits in exchange for his testimony was never shared with the deputy district attorneys prosecuting the plaintiff. The Ninth Circuit ruled that the challenged conduct was administrative in nature and not intimately associated with the judicial phase of the criminal process. Rather, it was related only to the management of the district attorney’s office. Hence, it was not protected by prosecutorial immunity. Read the rest of this entry »

The Decision

The Supreme Court’s 2009 decision in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) (5-4 decision, Kennedy writing for the Court), has recently generated a great deal of justified attention in the federal courts and the profession.

However, most of that attention has been directed to the federal pleading aspects of Iqbal. Much less noticed has been the Court’s declaration, without briefing and argument, that supervisory liability under Bivens and section 1983 requires that the supervisor must possess the same state of mind that is required for the underlying constitutional violation by subordinates. In Iqbal itself, this meant that the defendants, Ashcroft and Mueller, accused of violating the plaintiff’s equal protection rights by implementing policies that led to the plaintiff’s harsh treatment by subordinates during confinement because of his race, religion and national origin, would not be liable unless the plaintiff alleged and could prove that Ashcroft and Mueller themselves acted with purposeful discrimination. Defendants’ actual knowledge of a constitutional violation by their subordinates, coupled with their deliberate indifference, was therefore not sufficient to state a claim under Bivens. Significantly, this changed the supervisory liability law in the circuits which had for the most part adopted the deliberate indifference standard. (Four justices dissented, led by Justice Souter in a lengthy dissenting opinion). Read the rest of this entry »