The recent death of John Thompson served as a cruel reminder that even the most egregious and injurious prosecutorial wrongdoing may not be redressable in an action for damages pursuant to 42 U.S.C. §1983. Thompson was the plaintiff in Connick v. Thompson, 131 S.Ct.1350 (2011). He lost his §1983 action in the U.S. Supreme Court, even though he had been on death row for 14 years and the subject of seven death warrants for a murder he did not commit. Prosecutors in the Orleans (Louisiana) District Attorney’s Office had intentionally failed to disclose exculpatory material in violation of Thompson’s due process Brady rights. Brady v. Maryland, 373 U.S. 83 (1963). He had won a §1983 jury verdict of $14 million, $1 million for every year on death row, which was affirmed by the U.S. Court of Appeals for the Fifth Circuit, only to have it reversed by a 5-4 ideologically divided Supreme Court. Connick v. Thompson, supra. The Supreme Court decision has been described as “an exceptionally cruel and disingenuous ruling” (Jesse Wegman, “An Innocent Man Who Imagined the World as it Should Be,” N.Y. Times, Oct. 16, 2017, p. A26), “one of the meanest Supreme Court decisions,” “a master class in human apathy”, and “hyper technical and deliberately callous” (Dahlia Lithwick, “Cruel but Not Unusual,” Slate Magazine, April 1, 2011, www.slate.com).
The N.Y. Times recently published a lengthy obituary of John Thompson. Sam Roberts, “John Thompson, Cleared After Serving 14 Years on Death Row, Dies at 55,” N.Y. Times Oct. 5, 2017, p. B15. This was followed with a N.Y. Times article carrying the ominous suggestion that future judicial decisions may make it harder yet to hold prosecutors accountable. Alan Feuer, “Holding Prosecutors Accountable for Misconduct is Hard. It Could Get Harder,” N.Y. Times, Oct. 9, 2017, p. A17.
My major purpose here is to explain how a series of decisions by the U.S. Supreme Court has brought us to the point that even the most blatantly unconstitutional conduct by prosecutors is frequently not redressable under §1983. We will use John Thompson’s §1983 case as a springboard to explore the various issues; in an earlier column we examined Justice Clarence Thomas’s opinion for the court in Connick and the forceful dissent by Justice Ruth Bader Ginsburg. “Supreme Court Overturns $14 Million for Wrongful Conviction,” N.Y.L.J. (June 15, 2011).
Section 1983 is primarily designed to compensate individuals whose federally protected rights were violated under color of state law and to deter and prevent future violations. See, e.g., Robertson v. Wegmann, 436 U.S. 584, 590-91 (1978). One might, therefore, reasonably suppose that a victim of egregious unconstitutional conduct by a state or local official would be entitled to damages in a §1983 action virtually as a matter of course.
Nothing could be further from the truth. The law reports are filled with decision after decision holding §1983 plaintiffs not entitled to relief despite being victimized by blatant constitutional wrongdoing by state or local officials. This is primarily the result of the various immunity defenses available to §1983 defendants, such as the absolute prosecutorial and witness immunities, qualified immunity, and the firm principle that municipalities and supervisory officials are not subject to vicarious liability under §1983. In fact, there is no respondeat superior liability for any §1983 defendant; each defendant may be held liable only for the defendant’s own wrongdoing. For officials sued under §1983 courts typically enforce the no respondeat superior liability rule by requiring the plaintiff to show the official’s “personal involvement” in the deprivation of the plaintiff’s constitutional rights. For municipal entities sued under §1983 the no-respondeat superior liability principle is implemented via the familiar Monell rule requiring the plaintiff to prove that the deprivation of her federal rights was attributable to enforcement of a municipal policy or practice. Monell v. NYC Dep’t of Social Services, 436 U.S. 658 (1978).
Immunity defenses and the rule against respondeat superior are not the only non-merits defenses facing §1983 plaintiffs. There is a plethora of other potentially tough obstacles to overcome, including causation, the principle that states and state entities are not suable under §1983 (Will v. Michigan Dep’t of State Police, 491 U.S. 58 (1989)), and the doctrine of Heck v. Humphrey, 512 U.S. 477 (1994), which renders §1983 constitutional claims implicating the validity of a conviction (or sentence) noncognizable unless and until the conviction has been overturned, for example, on appeal or on collateral review. But clearly, the various immunity defenses available to state and local officials, and the protection municipalities enjoy from the rule against respondeat superior liability, are the most potent defenses that can serve to bar recovery for even the most egregious constitutional wrongdoing. When operating in tandem, these two non-merits defenses often land lethal one-two punches knocking out even the strongest of constitutional claims.
The combined operation of absolute prosecutorial immunity and the rule protecting municipal entities from respondeat superior liability has largely brought us to the present state of affairs that allows so much serious prosecutorial misconduct to escape §1983 liability.
This is dramatically illustrated by Thompson’s case. The Orleans District Attorney’s Office conceded that Thompson was wrongfully convicted in violation of his due process Brady rights. See Connick, 131 S. Ct. at 1335, 1360 n.7 (as many as four prosecutors may have been responsible for nondisclosure of the crime lab report); id. at 1365-66 (“The role of the prosecutor is to see that justice is done … . By their own admission, the prosecutors who tried Thompson’s armed robbery case failed to carry out that responsibility.”). If Thompson’s attorneys had sued these line prosecutors or their supervisors for damages in their personal capacities, they certainly would have been met with the defense of absolute prosecutorial immunity. This immunity shields prosecutors from monetary liability for carrying out their advocacy functions, although not for carrying out investigative functions. See generally Imbler v. Pachtman, 424 U.S. 409 (1976). A prosecutor who carries out her advocacy functions is shielded by absolute immunity regardless of her motives and even if she acted maliciously. But if the prosecutor acted like a detective, immunity law will treat her like a detective entitled to qualified, not absolute immunity. Buckley v. Fitzsimmons, 509 U.S. 259, 273-74 (1993). Although for many years the courts had consistently articulated that prosecutors were not absolutely immune for carrying out their administrative functions, in Van de Kamp v. Goldstein, 555 U.S. 335 (2009), the Supreme Court expanded prosecutorial immunity, holding that it encompasses a supervisory prosecutor’s administrative actions that are closely tied to the trial process.
Thomas Goldstein, like John Thompson, was wrongfully convicted of murder because of prosecutors’ Brady violations; in Goldstein’s case, the violations related to a jailhouse informant named Edward Fink. Goldstein sought to hold that Los Angeles District Attorney and his Chief Deputy personally liable for §1983 damages for failing to adequately train and supervise the line prosecutors in their Brady obligations concerning impeachment material. The U.S. Supreme Court agreed with Goldstein that his challenge to the §1983 defendants’ failures to adequately train and supervise was a challenge to administrative action, but nevertheless held that they were shielded by absolute prosecutorial immunity because their claimed administrative failures were intimately connected to the criminal prosecution against Goldstein.
Prosecutorial immunity has strong common-law roots and is well entrenched in the law of §1983. It is supported by strong policy reasons. Prosecutors have tremendous discretion on such vital decisions as whether to lodge criminal charges, which crimes to charge, against whom, whether to plea bargain, how to present the case, what sentence to seek, and so on ad infinitum. Prosecutors need to be able to exercise their discretion decisively without fear of being exposed to monetary liability.
Still, the question remains whether the law has gone too far in applying absolute prosecutorial immunity even in cases of malicious failures to comply with clear constitutional commands. Prominent Ninth Circuit Judge Alex Kozinski has argued that absolute prosecutorial immunity should be abrogated (Alex Kozinski, “Criminal law 2.0,” 44 Geo. L.J. Ann. Rev. Crim. Proc. (2015)), but there is no reason to think this will happen in the foreseeable future. John Thompson put it this way: “If I’d spilled hot coffee on myself, I could have sued the person who served me the coffee … . but I can’t sue the prosecutors who nearly murdered me.” Sam Roberts, “John Thompson Cleared After Serving 14 Years on Death Row, Dies at 55,” supra.
Because absolute prosecutorial immunity would have clearly barred claims against the prosecutors responsible for the violations of Thompson’s Brady rights, his attorneys asserted a §1983 municipal liability claim against the Orleans Parish District Attorney’s Office, a municipal entity. There are several ways a §1983 plaintiff may attempt to establish municipal liability, each of which typically presents serious difficulties for the plaintiff. The subject of §1983 municipal liability is voluminous, and here we only sketch out ever so briefly the major potential bases of municipal liability:
Formally promulgated policy: When it exists it could provide a clear-cut basis for municipal liability. But it is rarely present in cases of prosecutorial misconduct. One would not be likely to uncover, for example, a formal policy of a municipality or district attorney’s office requiring prosecutors to suppress exculpatory material or a particular type of exculpatory material.
Widespread custom or practice: The practice must be so widespread and settled as to have the force of law. These claims present both legal and factual difficulties: How many instances of wrongdoing are required? Over what period of time? How similar must the wrongful acts be? These claims are obviously time consuming and expensive to prove. They are often asserted, but succeed relatively infrequently.
Decision by a municipal policymaker: The Supreme Court holds that state law, which usually means local law, will determine whether an official has policymaking authority in a particular area. See, e.g., City of St. Louis v. Praprotnik, 485 U.S. 112 (1988). To provide a basis of municipal liability the official must have policymaking and not merely discretionary authority. While this distinction in application is sometimes elusive, it is clear that assistant district attorneys have discretionary but not policymaking authority; policymaking authority lies with the District Attorney.
Is a District Attorney in New York a state policymaker or a municipal policymaker? The distinction is critical. While a decision by a municipal policymaker provides a basis for imposing municipal liability, a state policymaker when sued for damages in her official capacity would not be a suable §1983 defendant because, the official capacity claim would be tantamount to a claim against the state. Such a claim would also run smack into the 11th Amendment which protects the state treasury from a federal court award of monetary relief. As shown by the 5-4 decision in McMillan v. Monroe County, 520 U.S. 781 (1997), it is not always obvious whether an official is a state or municipal policymaker in a particular subject area. Second Circuit decisions hold that county district attorneys are state policymakers when prosecuting criminal cases, but municipal policymakers when carrying out administrative and supervisory functions, such as the training of assistant district attorneys. See, e.g., Walker v. City of N.Y., 974 F. 2d 293, 301 (2d Cir. 1992) (Kings County District Attorney is municipal policymaker over training and supervision), cert. den., 507 U.S. 961 (1993); Baez v. Hennessy, 853 F. 2d 73, 76-77 (2d Cir. 1988) (when prosecuting individual crimes District Attorney represents state of New York), cert. den., 488 U.S. 1014 (1989). See also Gentile v. County of Suffolk, 926 F.2d 142 (2d Cir. 1991).
Deliberately indifferent training, supervision or hiring: The Supreme Court has spelled out that these bases of §1983 municipal liability are available only in “narrow” “limited” circumstances and that they impose stringent fault and causation standards on §1983 plaintiffs. Boards of Comm’rs of Bryan Cty. v. Brown, 520 U.S. 397 (1997); Connick v. Thompson, supra; City of Canton v. Harris, 489 U.S. 378 (1989). Here too numbers of these claims are asserted, but relatively few ultimately succeed.
John Thompson’s municipal liability claim against the Orleans Parish District Attorney’s Office was based on District Attorney Harry Connick Sr.’s allegedly deliberate indifferent training of assistant district attorneys in their Brady obligations. In reversing the jury verdict in favor of Thompson, the Supreme Court applied the rule that “[a] pattern of similar constitutional violations by untrained employees is ‘ordinarily necessary’ to demonstrate deliberate indifference for purposes of failure to train.” Connick, 131 S. Ct. at 1360 (emphasis supplied). The Supreme Court concluded that four other cases in which Louisiana courts overturned convictions because of Brady violations in Connick’s office were not “similar” to the constitutional violations in Thompson’s case, because those four cases did not invoke the type of exculpatory blood evidence at issue in Connick. Id. at 1360 (“None of those cases involved failure to disclose blood evidence, a crime lab report, or physical or scientific evidence of any kind.”). But the court did not explain why a series of Brady violations of any kind should not have put District Attorney Connick on notice of the need to give ADA’s Brady training. The court also failed to provide guidance as to how similar the Brady (or other constitutional) violations have to be in order to support a failure to train claim.
While City of Canton v. Harris, supra, recognized that there is no need to show a pattern of similar constitutional violations when the need for training is obviously necessary, such as training police officers on the constitutional limits for using deadly force, the Court in Connick v. Thompson found this exception did not apply to the training of ADAs because they are law trained professionals presumed to know their legal obligations. The reality, however, is that many law school graduates may not be well be versed in the complexities of Brady law or even in its basics. Connick, 131 S. Ct. at 1385 (Ginsburg, J., dissenting) (criminal procedure not required course in most law schools).
A §1983 plaintiff who seeks to challenge allegedly unconstitutional conduct by a prosecutor is left with very few options. Three possibilities are: (1) an individual capacity claim against a prosecutor who acted in an investigatory capacity; (2) a municipal liability claim based upon a decision by the District Attorney who acted as a municipal policymaker; (3) a failure to train or supervise claim based on a pattern of very similar constitutional violations. It is important that §1983 plaintiffs’ attorneys who assert constitutional wrongdoing by prosecutors do so with their eyes open to the obstacles they are likely to encounter.
Martin A. Schwartz is a professor emeritus of law and author of a treatise on Section 1983 litigation (Aspen Law Publishers).