Municipal Liability? Not So Fast: What Connick v. Thompson Means for Future Prosecutorial Misconduct - T. Owen Farist

• Jurisdiction: United States,Federal
• Publication year: 2012
• Citation: Vol. 63 No. 3

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Municipal Liability? Not So Fast: What Connick v. Thompson Means For Future Prosecutorial Misconduct

I. Introduction

In Connick v. Thompson,¹ the United States Supreme Court held that, under section 1983 of title 42 of the United States Code,² the Orleans Parish District Attorney's actions failed to rise to the level of deliberate indifference required for municipal liability.³ The Court affirmed the possibility of "single-incident" municipal liability hypothesized in City of Canton v. Harris⁴ as an exception to the ordinary requirement of a pattern of similar violations necessary to prove the stringent standard of deliberate indifference to a known or obvious consequence.⁵ Despite upholding the validity of the exception, the Court found that Thompson's case did not fall within this narrow scope of single-incident liability

1. 131 S. Ct. 1350 (2011).

2. 42 U.S.C. § 1983 (2006).

3. Connick, 131 S. Ct. at 1366.

4. 489 U.S. 378, 390 & n.10 (1989).

5. Connick, 131 S. Ct. at 1366 (internal quotation marks omitted).

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theorized in Canton.⁶ The challenge after Connick will be in determining how wide this latitude of prosecutorial misconduct may stretch before running up against the narrow set of circumstances established in Canton.

II. Factual Background

In 1985, John Thompson was charged with the murder of Raymond T. Luizza, Jr., after a highly-publicized investigation.⁷ As a result of the publicity surrounding the murder investigation, Orleans Parish prosecutors were able to link Thompson to a separate and unrelated subsequent armed robbery when the father ofone ofthe robbery victims showed a photo ofThompson in the newspaper to his children.⁸ During the robbery crime scene investigation, a piece ofblood-soaked fabric was taken from one of the victims' pants. The potentially exculpatory blood testing results of these materials were delivered to the prosecutor's office two days before the trial, but the report was never disclosed to Thompson's counsel or the trial court.⁹

Equipped with the indictment in both the murder and the robbery cases, the prosecutors decided to try the robbery case before the murder, principally to discourage Thompson from testifying in his own defense during the murder trial. The district attorney's office reasoned that a prior conviction for armed robbery could be used to damage Thompson's credibility on the stand in the murder trial, if he did decide to testify.¹⁰ Thompson was convicted of attempted armed robbery without the prosecutor's office revealing the potentially exculpatory test results or even the existence of the tested piece of clothing.¹¹ This robbery conviction was then used to elevate the murder to a death penalty case.¹² In the subsequent murder trial, prosecutors concealed further evidence: information that the initial description of the assailant was wholly inconsistent with Thompson's profile.¹³ Thompson was convicted of the Liuzza murder after he chose not to testify in his own defense because of the armed robbery conviction.¹⁴

6. Id.

7. Connick v. Thompson, 131 S. Ct. 1350, 1356 (2011).

8. Id. at 1356, 1372.

9. Id. at 1356.

10. Id. at 1372 (Ginsburg, J., dissenting).

11. Id. at 1356 (majority opinion).

12. See id. at 1372 (Ginsburg, J., dissenting).

13. Id. at 1371.

14. Id. at 1356 (majority opinion).

2012] CONNICK V. THOMPSON 1115

In 1999, weeks before his scheduled execution, Thompson's private investigator found the evidence that may have cleared him at his initial robbery trial.¹⁵ On immediate appeal to stay the execution, the Louisiana Court of Appeals reversed the murder conviction on the grounds that the armed robbery conviction "unconstitutionally deprived Thompson of his right to testify in his own defense at the murder trial."¹⁶ Thompson's robbery case was vacated outright, without the need for a retrial.¹⁷ In 2003, the district attorney's office tried Thompson again for the vacated Liuzza murder.¹⁸ With only tenuous evidence remaining, the jury returned a verdict of not guilty, clearing Thompson on all charges.¹⁹

Following his acquittal, Thompson brought a civil action alleging liability under 42 U.S.C. § 1983²⁰ against the district attorney, Harry Connick, for failing to train his prosecutors about their legal obligation to turn over exculpatory evidence to the defense, known as "Brady violation[s]."²¹ Before trial, Connick admitted to the Brady violation, which left the district court to determine the only issue in the case: whether this failure to train rose to a level of municipal liability. At trial, the jury found Connick liable under this failure-to-train theory and awarded Thompson $14 million in damages, $1 million for every year Thompson wrongfully spent on death row. A panel for the United States Court of Appeals for the Fifth Circuit affirmed on the grounds that Connick was on notice of an obvious need for Brady training. The court of appeals, sitting en banc, affirmed the lower court's ruling by default when it split evenly after vacating the panel decision and granting a rehearing.²²

In a fiercely contested 5-4 split decision in which the dissent read from the bench, the United States Supreme Court held that Connick's failure to train his subordinate prosecutors did not rise to the requisite deliberate indifference for municipal liability under 42 U.S.C. § 1983, thereby reversing the lower courts.²³

15. Id.

16. Id. at 1356-57.

17. See id. at 1355, 1357.

18. Id. at 1357.

19. Id.

20. 42 U.S.C. § 1983 (2006).

21. Connick, 131 S. Ct. at 1357. Such failures to disclose information are commonly referred to as "Brady violations" after the 1963 case concerning suppression of material evidence by the prosecution. See generally Brady v. Maryland, 373 U.S. 83 (1963).

22. Connick, 131 S. Ct. at 1357-58.

23. Id. at 1366.

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III. Legal Background

A. Deprivation of Rights: § 1983 and Brady Violations

In 1871, Congress enacted 42 U.S.C. § 1983²⁴ to provide a civil remedy against the deprivation of rights secured by the united States Constitution and federal laws.²⁵ Section 1983 provides in relevant part: "Every person who . . . subjects, or causes to be subjected, any citizen . . . to the deprivation ofany rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law . . . ."²⁶ Although the language itself only refers to individuals, the United States Supreme Court has since clarified that the scope of liability includes local governments, which may be liable under § 1983 where the municipality itself deprives a person oftheir rights or causes such persons to be the subject of such deprivation.²⁷

The Supreme Court clarified the bounds of a prosecutor's constitutional obligations regarding these civil rights ofdue process in the 1963 case of Brady v. Maryland.²⁸ In Brady, the Court held that suppression of material evidence that might be favorable to the defense after a request for disclosure resulted in a deprivation of the due process rights of the defendant.²⁹ Specifically, "Brady evidence" included evidence that was material to either the defendant's guilt or potential punishment.³⁰ Brady laid the groundwork for the scope of the prosecution's duty in disclosure to both the court and opposing council.³¹ Subsequent cases have established that violation of this constitutional responsibility may provide a basis for civil liability under 42 U.S.C. § 1983.³²

B. A Shift in "Person": Monell v. New York City

For the century following the passage of 42 U.S.C. § 1983, the Supreme Court held that local governments were immune from suit

24. 42 U.S.C. § 1983 (2006).

25. Id.

26. Id.

27. Monell v. Dep't of Soc. Servs. of New York, 436 U.S. 658, 692 (1978).

28. 373 U.S. 83 (1963).

29. Id. at 87.

30. Id.

31. See id.

32. See, e.g., City of Canton v. Harris, 489 U.S. 378, 388-89 (1989); Pembaur v, City of Cincinnati, 475 U.S. 469, 481 (1986); Monell, 436 U.S. at 694.

2012] CONNICK V. THOMPSON 1117

under § 1983.³³ This policy of immunity shifted in the 1978 case of

Monell v. Department of Social Services of New York,³⁴ where the Court overruled the previously narrow definition of "person," from the statute itself, as applying only to individuals.³⁵ The Court cited original congressional intent in holding that a municipality was included under the meaning of a person subject to § 1983 liability.³⁶ While the Court extended the scope of § 1983, it was quick to limit the application of municipal liability to those local governments that deliberately acted as the "moving force" behind the alleged deprivation of federal rights.³⁷ Under this rigorous standard, traditional notions ofrespondeat superior would be insufficient to establish municipal liability.³⁸

The Court held that an act of a municipal agent will be insufficient for liability unless the execution of government policy or custom both amounts to official policy and actually inflicts the alleged injury under § 1983.³⁹ This "official policy" condition in Monell was established to clarify the limited circumstances of liability for municipalities by...