Lawyers whose practice focuses on suing the government for the deprivation of civil rights, what is known as §1983 actions, have long tried to explain that they are some of the most difficult to pursue.  With the Supreme Court’s decision in Connick v. Thompson, it just got harder.

Here’s the background from the case summary:

Petitioner the Orleans Parish District Attorney’s Office concedes that, in prosecuting respondent Thompson for attempted armed robbery, prosecutors violated Brady v. Maryland, 373 U. S. 83, by failing to disclose a crime lab report. Because of his robbery conviction, Thompson elected not to testify at his later murder trial and was convicted. A month before his scheduled execution, the lab report was discovered. A reviewing court vacated both convictions, and Thompson was found not guilty in a retrial on the murder charge.

What stands out is that the prosecution concedes that it concealed the Brady material.  They didn’t argue mistake or accident, but that the prosecutor who handled the case, Gerry Deegan, completely and intentionally failed to disclose to the defense that there was a swatch of blue jeans with the perpetrator’s blood on it and a report showing that it was Type B.  Deegan didn’t know if the swatch matched Thompson’s blood, but he made sure the defendant would never know either.

Thompson was convicted, and via the ramifications of the conviction, chose not to testify at his subsequent murder trial and was convicted again.  He spent 18 years in prison, including 14 on death row.  When defense investigators learned of the swatch and determined that Thompson’s blood type was O, his conviction was reversed and he was freed. 

He then sued the District Attorney, under §1983, for violation of his civil rights under the theory that they prosecutors were not adequately trained in their duty to disclose potentially exculpatory evidence under Brady.  A jury awarded Thompson $14 million.  In a 5-4 decision by Justice Thomas, the Supreme Court took it back.

Plaintiffs seeking to impose §1983 liability on local governments must prove that their injury was caused by “action pursuant to official municipal policy,” which includes the decisions of a government’s lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as to practically have the force of law.

The burden isn’t to show that a defendant’s constitutional rights were violated in the particular instance before the court.  That would be far too easy, and provide redress to any poor shmoe who spent 18 years in prison because a prosecutor screwed him.  He can’t sue the prosecutor who did the dirty, as he’s got qualified immunity and is untouchable, lest prosecutors feel afraid to do their job of screwing people in the process of convicting them.  No, the path that must be taken is “deliberate indifference.”

Deliberate indifference in this context requires proof that city policymakers disregarded the “known or obvious consequence” that a particular omission in their training program would cause city employees to violate citizens’ constitutional rights.

And how does one prove such a thing?

A pattern of similar constitutional violations by untrained employees is “ordinarily necessary” to demonstrate deliberate indifference. Without notice that a course of training is deficient, decisionmakers can hardly be said to have deliberately chosen a training program that will cause violations of constitutional rights.

So what if Deegan buried Thompson’s Brady material.  So what if Thompson spent 18 years in prison as a result.  So what if Deegan, not to mention his boss, Harry Connick, are lawyers and hence supposed to have some inkling of what the duty imposed upon them by the Constitution means.  The key question is what would be fair to the decisionmakers, who “can hardly be said to have deliberately chosen” to violate constitutional rights.  What about the children decisionmakers?

In dissent, Justice Ginsburg wrote:

Throughout the pretrial and trial proceedings against Thompson, the team of four engaged in prosecuting him for armed robbery and murder hid from the defense and the court exculpatory information Thompson requested and had a constitutional right to receive. The prosecutors did so despite multiple opportunities, spanning nearly two decades, to set the record straight. Based on the prosecutors’ conduct relating to Thompson’s trials, a fact trier could reasonably conclude that inattention to Brady was standard operating procedure at the District Attorney’s Office.

What happened here, the Court’s opinion obscures, was no momentary oversight, no single incident of a lone officer’s misconduct. Instead, the evidence demonstrated that misperception and disregard of Brady’s disclosure requirements were pervasive in Orleans Parish. That evidence, I would hold, established persistent, deliberately indifferent conduct for which the District Attorney’s Office bears responsibility under §1983.

Notably, the dissent is predicated upon the argument that Thompson proved deliberate indifference, albeit through his own case over nearly two decades of concealment.  There’s no contention that an “aberrant” single incident of constitutional deprivation gives rise to a cause of action.  

Ginsburg does note that Brady violations “are not easily detected,” meaning nearly impossible to find and almost always a matter of pure kismet that someone stumbles upon them.  No one seems particularly concerned about the incentives to conceal Brady material, since the only downside to doing so is that the defendant, maybe 18 years later, may have a one in a hundred chance of finding out and then have his case dismissed, as it would have been 18 years earlier if they complied. 

For individuals, people who have suffered the indignity of their constitutional rights being violated by those given the authority to do horrible things to others, there is a message here:  Who cares?  Most people believe that there is a way, a place, where you can turn if someone in government screws with your rights, that every American has a right, a RIGHT, to go to court to seek a remedy for the harm done them.  Surprise.

For those other individuals, the ones who decry the remedies like suppression that let the guilty free, under the guise that if the police or prosecutors do wrong to any particular person, there must be another way, there isn’t.  This isn’t about enforcing individual constitutional rights.  This isn’t about providing a remedy to an individual for a conceded violation of their constitutional rights.  This is about protecting the government from its own victims by making it nearly impossible to meet the proof demanded.

Do the judges who think Brady is just another joke, that constitutional rights are someone else’s problem down the road apiece, feel even a twinge of concern for the 18 years Thompson spent in prison?  What about the fact that Thompson would have been executed had his investigators not fortuitously found the blood swatch?  Or do they take comfort that the majority of the Supreme Court couldn’t care any more than they do?