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March 29, 2011

Split 5-4 SCOTUS ruling brings deliberate indifference standard to 1983 action against prosecutors

The Supreme Court finally handed down this morning an opinion in Connick v. Thompson concerning potential liability for prosecutorial injustices.  The decision is 5-4 with Justice Thomas delivering the opinion of the Court, Justice Scalia issuing a concurring opinion joined by Justice Alito, and Justice Ginsburg issuing a dissenting opinion joined Justices Breyer, Sotomayor, and Kagan.

The opinion is available here (with the dissent taking up more pages than both the majority and concurring opinions) , and here is an early description of the action from the SCOTUSblog folks:

The decision clarifies the burden of proof under Section 1983 against local governments.  It holds that there must be proof that the injury was caused by official action or policy.  A local government decision not to train some employees about duties under [Brady] may rise to a policy, but the failure to train must be a deliberate indifference to the rights of persons....  The Court holds that a pattern of similar constitutional violations by untrained employees is ordinarily necessary to demonstrate deliberate indifference....

The separate Scalia opinion is a response to the dissent, [and] Justice Ginsburg is dissenting from the bench, which the Justices use to signal their broad and serious objection to a majority opinion.

March 29, 2011 at 10:18 AM | Permalink


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Ginsburg's dissent - most of which was a recap and respin of the long trial history - is devoid of real legal arguements. Thomas gets it right and succintly states it: The dissent spends considerable time finding new Brady violations in Thompson’s trials. How these violations are relevant is “a mystery.” The dissent does not list these violations among the “[a]bundant evidence” that it believes supports the jury’s finding that Brady training was obviously necessary. Nor does the dissent quarrel with our conclusion that contemporaneous or subsequent conduct cannot establish a pattern of violations. The only point appears to be to highlight what the dissent sees as sympathetic, even if legally irrelevant, facts. BINGO. Just as the president says he wants empathetic justices not ones who look to deliver Justice based on facts regardless of harm or personal angst. Just look at the dissents own words used: ...he was innocent of the charge of attempted armed robbery, and his subsequent trial on a murder charge, by prosecutorial design, was fundamentally unfair...the grave injustice the defendant suffered...its all about getting justice for the defendant however it has to happen.

Posted by: DeanO | Mar 29, 2011 11:11:40 AM

Except of course that prosecutorial immunity )nor judicial for that matter) is nowhere to be found in the relevant statute. As SC would say it is self dealt and criminal. I believe the courts got it wrong from the very beginning when they started inventing immunity doctrines to statues that don't allow for them.

Posted by: Soronel Haetir | Mar 29, 2011 1:37:37 PM

The Supreme Court has the authority in maintaining the orderliness of the case. It is the lawyers who support their clients and handed down all the provocative which was given details by their clients. It is also one right thing that implements betterment and fare treatment on the Court.

Posted by: Lawyer Social Marketing | Mar 29, 2011 10:38:54 PM

It is amazing how the majority is so careful to remove all consequences and accountability from a group of people -federal prosecutors- who base their power, careers and personal philosophies entirely on imposing consequences and accountability.

So if not Connick, then who IS going to be accountable for this innocent man being locked up for 18 years and nearly executed? I'll bet the prosecutors in question weren't even reprimanded by the state bar.

That's the larger issue here, an issue that probably needs to be addressed in a new federal law given the increasing amount of outrageous misconduct on the part of federal prosecutors.

How about a prison term for every Brady violation equal to one-quarter of the maximum term of the charges in the case? After all, that would directly approximate the risk of harm created by the prosecutor's illegal act.

Posted by: James | Mar 30, 2011 3:04:49 AM

If tort liability is a substitute for violence, the obverse is true in formal logic. Immunity justifies violence.

Immunity is a form of stealthy industrial policy because it grows the entire enterprise, and liability deters the entire enterprise, not just a defendant.

The sole justification for sovereign immunity in the common law is that the Sovereign speaks with the Voice of God. That is a psychotic delusion and not a valid reason to allow immunity of any government entity.

Because the sole tool of the court is punishment, it qualifies for strict liability. Professional standards of due care is sufficient, however.

Finally, the court will say it has no time for lawsuits. The welder's time is far more valuable than that of the coffee swilling, lazy, do nothing government workers on the Supreme Court.

An amendment should be passed to end the immunity of all government agencies, including prosecutors, courts, and regulators. To deter.

Posted by: Supremacy Claus | Mar 30, 2011 3:31:44 AM

Immunity may also be a factor in the failure of every self stated goal of every law subject. Accountability may prod the intelligent lawyer into being more competent and productive. The rule of law is an essential utility product. Its utter failure is a huge drag on the progress and development of the nation.

Posted by: Supremacy Claus | Mar 30, 2011 3:54:41 AM

The prosecutors in the original prosecution were clearly indifferent to the need to comply with Brady, not to mention their obligation to do justice. The job description was to support the theory of the prosecution, not seek justice. Subtle violations of Brady and misdirection are part of the culture for some prosecutors. For the most part, the reason they do this is they can!

The DA said he didn't think the swatch was Brady material, because he didn't know Thompson's blood type. He was either deliberately indifferent or the dumbest person alive.

Posted by: Stanley Feldman | Mar 30, 2011 8:52:23 AM

Interesting remarks here:


Posted by: Joe | Mar 30, 2011 9:59:23 AM

i have to agree. the supremes are getting dumber every year. This continual coverup of crooked or retarded DA's is just going to result in a massive push back of out and out violence if the courts refuse to allow justice in the court! The people will just have to take it outside!

Sorry once the DA hid evidence and then lied to keep it hid! they became a CROOK! and just as liable for prison time as anyone facing them and if the courts don't know that. might be time to drag them off their high horses and toss em into a prison cell for a few years!

Posted by: rodsmith | Mar 30, 2011 2:05:13 PM

Its like they are going along with the crooked scales of justice...aiding and abetting the misconduct crime...why not approach at that angle to dismantle the protection of INJUSTICE.......concealment protects injustice.......the county courthouse personnel authorities can set-up any citizen to lose and fail their rights....one time is too many....its
this kind of case that can be the HOMERUN for all citizens who cherish their family friends and freedom and their CONSTITUTION...help me to HOMERUN and send a donation...648 E. Main St.--E
SanJacinto, Ca. 92583

Posted by: RWECLEAR | Jul 30, 2011 3:43:44 AM

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