No. 09-

0 9- ~71 go~ 6 - 20O9

-~EFI~E ~F 1-HE CLERK

~n the ~upreme ~nurt af the ~niteb ~tate~

HARRY F. CONNICK, in his official capacity as DistrictAttorney; ERIC DUBELIER, in his official capacity asAssistant District Attorney; JAMES WILLIAMS, in his

official capacity as Assistant District Attorney; LEONCANNIZZARO, JR., in his official capacity as District Attorney;

ORLEANS PARISH DISTRICT ATTORNEY’S OFFICE,Petitioners,

Vo

JOHN THOMPSON,Respondent.

On Petition for Writ of Certiorari to the UnitedStates Court of Appeals for the Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

JAMES D. "BUDDY" CALDWELLLouisiana Attorney General

S. KYLE DUNCANAppellate Chief

ROBERT ABENDROTHAssistant Attorney General

LOUISIANA DEPARTMENT OF JUSTICEP.O. Box 94005Baton Rouge, LA 70804(225) 326-6008

WILLIAM D. AARON, JR.GOINS AARON, APLC201 St. Charles Ave., Ste. 3800New Orleans, LA 70170(504) 569-1800

LEON A. CANNIZZARO, JR.Orleans Parish DistrictAttorney

GRAYMOND F. MARTINFirst Assistant DistrictAttorney

DONNA R. ANDRIEUCounsel of Record

Chief of AppealsORLEANS PARISH DISTRICTATTORNEY’S OFFICE619 South White StreetNew Orleans, LA 70119(504) 822-2414

Counsel for Petitioners

Becker Gallagher ¯ Cincinnati, OH- Washington, D.C.- 800.890.5001

Blank Page

QUESTIONS PRESENTED

Prosecutors in the Orleans Parish DistrictAttorney’s Office hid exculpatory evidence,violating John Thompson’s rights under Brady v.MaryIand, 373 U.S. 83 (1963). Despite no history ofsimilar violations, the office was found liable under§ 1983 for failing to train prosecutors. Inadequatetraining may give rise to municipal liability if itshows "deliberate indifference" and actually causesa violation. See City of Canton v. Harris, 489 U.S.658, 389-91 (1978); Bd. of County Comm’rs ofBryan County v. Brown, 520 U.S. 397, 403-07(1997). A pattern of violations is usually necessaryto show culpability and causation, but in rare casesone violation may suffice. Bryan County, 520 U.S.,at 409. The Court has hypothesized only oneexample justifying single-incident liability: afailure to train police officers on using deadly force.See Canton, 489 U.S., at 390 n.10.

Does imposing failure-to-train liability on a districtattorney’s office for a single Brady violationcontravene the rigorous culpability and causationstandards of Canton and Bryan County?

Does imposing failure-to-train liability on a districtattorney’s office for a single Brady violationundermine prosecutors’ absolute immunityrecognized in Van de Kamp v. Goldstein, 129 S. Ct.855 (2009)?

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED ............................................i. i

TABLE OF AUTHORITIES ............................................iv

OPINIONS BELOW ......................................................1

JURISDICTION ............................................................1

STATUTORY PROVISION INVOLVED .............................1

STATEMENT OF THE CASE ..........................................2

A. Factual Background ..................................2

B. Federal Proceedings ..................................6

REASONS FOR GRANTING THE PETITION ..................10

I. THE COURT SHOULD CLARIFY WHEN

DISTRICT ATTORNEY’S OFFICES MAY BE

LIABLE FOR INDIVIDUAL PROSECUTORS’

MISCONDUCT ................................................13

A. The Court’s decisions narrowly limitfailure-to-train liability for singleincidents ...................................................13

B. In two decades, circuit courts havenot developed a consistent approachto applying single-incident liabilityto Brady violations ...................................17

C. The Fifth Circuit’s approach inThompson deepens the confusion ...........22

D. The Fifth Circuit has effectivelyimposed vicarious liability on adistrict attorney’s office ...........................26

(1). Thompson failed to showculpability and causation .....................26

ooo111

II. THE COURT SHOULD

WHETHER HOLDING

ATTORNEY’S OFFICE

CANTON EVISCERATES

Applying "failure-to-train" to thissingle incident collapsesmunicipal and vicarious liability. ........30

ALSO REVIEWA DISTRICT

LIABLE UNDERPROSECUTORS’

ABSOLUTE IMMUNITY ....................................33

CONCLUSION ............................................................37

Appendix A:

En bane judgment and opinions of theUnited States Court of Appeals for theFifth Circuit, filed August 10, 2009 .................la

Appendix B:

Panel opinion of the United StatesCourt of Appeals for the Fifth Circuit,filed December 19, 2008 .................................51a

Appendix C:

Order and Reasons of the United StatesDistrict Court, Eastern District ofLouisiana, filed November 15, 2005 ............l14a

iv

TABLE OF AUTHORITIES

Federal Cases

Amnesty America v. Town o£ WestHartford, 361 F.3d 113 (2nd Cir. 2004) ....19, 23

AretaMs v. Durivage, No. 1:07-CV-1273,2009 WL 249781 (N.D.N.Y. Feb. 3,2009) .................................................................19

Arnold v. McClain, 926 F.2d 963 (10th Cir.1991) .................................................................34

Babi-Ali v. City of New York, 979 F.Supp.268 (S.D.N.Y. 1997) .........................................23

Bd. of County Comm’rs o£Bryan County v.Brown, 520 U.S. 397 (1997) ......................passim

Brady v. Mar, viand, 373 U.S. 83 (1963) ..........passim

Brooks v. George Count)’, 84 F.3d 157 (5thCir. 1999) .........................................................34

Brown v. Bryan County, 219 F.3d 450 (5thCir. 2000) ...................................................17, 24

Brown v. Gray, 227 F.3d 1278 (10th Cir.2000) .................................................................17

Burge v. St. Tammany Pa~sh, 336 F.3d 363(5th Cir. 2003) ..................................................25

Carter v. City of Philadelphia, 181 F.3d 339(3rd Cir. 1999) ..................................................34

V

City of Canton v. Har~s, 489 U.S. 658(1978) .........................................................passim

Cousin v. Small, 325 F.3d 627 (5th Cir.2003) ...........................................................24, 25

Cozzo v. Tang~pahoa Parish Council-President Gov’t, 279 F.3d 273 (5th Cir.2002) .................................................................24

Crane v. State of Texas, 766 F.2d 193 (5thCir. 1985) .........................................................35

De] Campo v. Kennedy, 517 F.3d 1070 (9thCir. 2008) .........................................................34

Doe v. Broderick, 225 F.3d 440 (4th Cir.2000) .................................................................17

Gabriel v. City of Plano, 202 F.3d 741 (5thCir. 2000) .........................................................24

Gausvik v. Perez, 239 F.Supp.2d 1047 (E.D.Wash. 2002) .....................................................23

GigIio v. United States, 405 U.S. 150 (1972).. 34, 36

Gold v. City of Miami, 151 F.3d 1346 (llthCir. 1998) .........................................................17

Grandstaff v. City of Borger, 767 F.2d 161(5th Cir. 1985) ....................................................7

Gregory v. City of Louisville, 444 F.3d 725(6th Cir. 2006) ..................................................20

Hudson v. City of New Orleans, 174 F.3d677 (5th Cir. 1999) ...........................................34

Imbler v. Pachtman, 424 U.S. 409 (1976). 33, 35, 36

Kalina v. Fletcher, 522 U.S. 118 (1997) ................35

Kentucky v. Graham, 473 U.S. 159 (1985) .............6

Leatherman v. Tarrant County, 507 U.S.163 (1993) ...........................................................7

McDade vo West, 223 F.3d 1135 (9th Cir.2000) .................................................................17

Moldowan v. City of Warren, 578 F.3d 351(6th Cir. 2009) ..................................................21

Oklahoma City v. TuttIe, 471 U.S. 808(1985) ................................................................14

Pembaur v. City of Cincinnati, 475 U.S. 469(1986) ................................................................13

Pottawattamie County v. McGhee, 547 F.3d922 (8th Cir. 2008), cert. granted, 129S. Ct. 2002 (U.S. Apr. 20, 2009) (No. 08-1065) .................................................................12

Reasonover v. St. Louis Cry., 447 F.3d 569(8th Cir. 2006) ..................................................19

Revene v. Charles Cty. Comm’rs, 882 F.2d870 (4th Cir. 1989) ...........................................17

Robles v. City o£Fort Wayne, 113 F.3d 732(7th Cir. 1997) ............................................17, 18

vii

Snyder v. Tropagnier, 142 F.3d 791 (5thCir. 1998) .........................................................24

Szabla v. City of Brooklyn Park, 486 F.3d385 (8th Cir. 2007) ...........................................17

Thompson v. Connick, 2005 WL 3541035(E.D. La. Nov. 15, 2005). ..................... 1, 7, 8, 22

Thompson v. Conniek, 553 F.3d 836 (5thCir. 2008) ..................................................passim

Thompson v. Conniek, 578 F.3d 293 (5thCir. 2009) ..................................................passim

Van de Kamp v. Goldstein, 129 S. Ct. 855(2009) .........................................................passim

Walker v. City of New York, 974 F.2d 293(2nd Cir. 1992) ................................. 7, 18, 19, 23

Young v. City of Providence, 404 F.3d 4 (1stCir. 2005) .........................................................17

Federal Statutes

28 U.S.C. § 1254(1) ...................................................1

42 U.S.C. § 1983 .............................................1, 6, 30

42 U.S.C. § 1985 .......................................................6

State Cases

In Re Riehlmann, 2004-0680 (La. 1/19/05);891 So.2d 1239 ...................................................5

viii

State v. Thompson, 2002-0361 (La. App. 4Cir. 7/17/02); 825 So.2d 552 ...............................6

State Statutes

LA. REV. STAT. ANN. § 15:572.8 ................................6

Other Authorities

Becky Bohrer, Court upholds $14 millionjudgment against Orleans DA’s oftTce,ASSOC. PRESS, Aug. 10, 2009 ...........................12

Financial Woes Could Halt Justice System,WDSU.com, Jan. 7, 2009, http://www.wdsu.eorn/money/18426227/detail.html ..........12

http://movies.nytimes.comJmovie/446373/The-Nine-Lives-of-John-Thompson/details .........11

1

PETITION FOR A WRIT OF CERTIORARI

Petitioners seek a writ of certiorari to reviewthe judgment of the en banc United States Court ofAppeals for the Fifth Circuit in this case.

OPINIONS BELOW

The en banc decision in Thompson v. Connick(App. la-50a) is reported at 578 F.3d 293 (5th Cir.2009). The panel opinion is reported at 553 F.3d836 (5th Cir. 2008) (App. 51a-113a). The districtcourt’s order denying summary judgment (App.114a-144a) is not reported but is available at 2005WL 3541035 (E.D. La. Nov. 15, 2005).

JURISDICTION

The en banc Fifth Circuit entered judgment onAugust 10, 2009. This Court has jurisdiction under28 U.S.C. § 1254(1).

STATUTORY PROVISION INVOLVED

Title 42, section 1983, of the United States Codeprovides:

Every person who, under color of anystatute, ordinance, regulation, custom, orusage, of any State or Territory or theDistrict of Columbia, subjects, or causes to besubjected, any citizen of the United States orother person within the jurisdiction thereofto the deprivation of any rights, privileges, orimmunities secured by the Constitution andlaws, shall be liable to the party injured inan action at law, suit in equity, or otherproper proceeding for redress.

2

STATEMENT OF THE CASE

A. Factual Background

On December 6, 1984, Raymond T. Liuzza Jr.("Liuzza") was robbed, shot, and killed outside ofhis home in New Orleans. Approximately threeweeks later, siblings Jay, Marie, and MichaelLaGarde were the victims of an attempted armedrobbery while in their car in New Orleans. JayLaGarde fought off the perpetrator, and, in thestruggle, some of the robber’s blood stained the cuffof Jay’s pants. As part of the police investigation,crime scene technicians took a swatch of the pantswith the robber’s blood on it. App. 53a.

In January 1985, John Thompson ("Thompson")and Kevin Freeman ("Freeman") were arrested forthe Liuzza murder. The LaGardes saw Thompson’spicture in the newspaper and believed it wasThompson who had attempted to rob them. Theycontacted the Orleans Parish District Attorney’sOffice ("District Attorney’s Office") and identifiedThompson. App. 53a-54a.

At that time, the Orleans Parish DistrictAttorney was Harry Connick ("Connick"). DuringConnick’s twenty-nine year tenure from 1974 to2003, between thirty and ninety assistant districtattorneys worked in the office, screening between12,000 and 17,000 charges per year, andprosecuting about half of those. App. 54a, 131a.

The LaGardes’ armed robbery case was screenedfor institution of prosecution by assistant districtattorney Bruce Whittaker ("Whittaker"), whoreceived the police report, approved the case forprosecution, and filled out a Screening Action Form

3

indicating that armed robbery charges should bebrought. After noting that a technician had takena bloody swatch of Jay LaGarde’s pants, Whittakerwrote on the form that the state "[m]ay wish to doblood test." He also recommended that the case behandled by Eric Dubelier ("Dubelier") as a specialprosecutor because it involved the same defendant(Thompson) as the Liuzza murder case, whichDubelier was already handling. App. 54a-55a.

In March 1985, assistant district attorneyJames Williams ("Williams") handled a suppressionhearing in Thompson’s armed robbery case. Notingthe reference to a blood test on the ScreeningAction Form, Williams stated in open court that"it’s the state’s intention to file a motion to take ablood sample from the defendant, and we will filethat motion--have a criminalist here on the 27th."The record does not reflect that Thompson’s bloodwas ever tested by the District Attorney’s Office.About one week before the armed robbery trial,however, the bloody pants swatch was sent fortesting.1 Two days before trial, Whittaker receiveda crime lab report showing that the armed robber’sblood was type B. The report was never turnedover to Thompson’s attorneys. App. 55a.

Several days before trial, Dubelier had askedWilliams to act as lead prosecutor. Accordingly, thearmed robbery case was tried by Williams andassistant district attorney Gerry Deegan ("Deegan")on April 11 and 12, 1985. The Fifth Circuit panel

The record does not reveal who ordered the test. App.55a, 35a.

4

described what happened as Thompson’s armedrobbery trial began:

On the first day of trial, Deegan checked allof the evidence out of the police propertyroom, including the bloody swatch from JayLaGarde’s pants. Deegan then checked theevidence into the court property room, butnever checked in the pants swatch.

App. 56a. Williams did not mention the bloodevidence at trial and relied primarily on eyewitnesstestimony. The jury found Thompson guilty ofattempted armed robbery, and he was sentenced toforty-nine and one-half years in prison. App. 56a.

From May 6 to 8, 1985, Dubelier and Williamstried Thompson for the first-degree murder ofLiuzza. The state sought the death penalty. Attrial, Freeman testified that Thompson shotLiuzza. An acquaintance of Thompson testifiedthat Thompson made incriminating statementsabout the Liuzza murder and that he had soldThompson’s gun for him. App. 56a-57a.

Thompson did not testify on his own behalf.Had he testified, the prosecution would have usedhis attempted armed robbery conviction to impeachhim. The jury convicted Thompson of first-degreemurder. During sentencing, Marie LaGardetestified about Thompson’s attempt to rob herfamily and her brother’s actions in fighting him off.Dubelier capitalized on this testimony in his closingargument, asserting that there easily could havebeen three more murders and that a death sentencewas necessary to punish Thompson. Thompsonwas sentenced to death. App. 57a.

5

In the fourteen years after his murderconviction, Thompson exhausted all of his appeals.His execution was set for May 20, 1999. Then, inlate April 1999, an investigator in Thompson’shabeas proceedings discovered a microfiche copy ofthe lab report containing the blood type of thearmed robbery perpetrator. Thompson was testedand found to be type O, making it impossible forhim to have been the LaGardes’ attacker.Thompson’s attorneys presented this information tothe District Attorney’s Office, which then moved tostay Thompson’s execution. App. 57a-58a.

The ensuing investigation uncovered that, "in1994, Deegan [had] confessed to MichaelRiehlmann ("Riehlmann"), a former assistantdistrict attorney, that he had intentionallywithheld the blood evidence." App. 58a. Deegan,who was suffering from terminal cancer, admittedthis shortly after learning he had only months tolive. Riehlmann did not tell anyone about Deegan’sconfession until the blood evidence was discoveredin 1999. App. 58a.2

In 2001, Thompson applied for state post-conviction relief seeking vacatur of his murderconviction. The state district court resentencedhim to life in prison. In 2002, the Louisiana FourthCircuit Court of Appeal vacated Thompson’smurder conviction, holding that the taintedattempted armed robbery conviction had

Riehlmann was sanctioned by the Louisiana SupremeCourt for his failure to promptly report Deegan’s misconduct.See In Re RiehImann, 2004-0680 (La. 1/19/05); 891 So.2d1239.

6

unconstitutionally deprived him of his right totestify in his own defense at his murder trial.3

Thompson was retried for Liuzza’s murder in 2003,and was found not guilty. App. 59a-60a.

B. Federal Proceedings

After his release, Thompson brought suit in theUnited States District Court for the EasternDistrict of Louisiana under 42 U.S.C. § 1983,alleging that the District Attorney’s Office4 violatedhis rights by failing to train prosecutors on theirobligations under Brady v. Maryland, 373 U.S. 83(1963).5 See generally Monell v. Department ofSocialServiees, 436 U.S. 658 (1978). App. 60a-61a,l16a, 132a-142a.6

3 See State v. Thompson, 2002-0361, pp. 8-9 (La. App. 4

Cir. 7/17/02); 825 So.2d 552, 557-58.

Thompson also sued, in their individual and officialcapacities, Connick, Williams, and Dubelier, as well as EddieJordan, who held the position of Orleans Parish DistrictAttorney in 2003. App. 60a.

Thompson’s additional state and federal claims weredismissed at various stages. His state claims were dismissedon summary judgment. His § 1983 claim against Connickindividually was dismissed before trial. After Thompsonrested, the district court dismissed his § 1985(3) conspiracyclaim. At the close of evidence, the court ruled that two of theprosecutors, Dubelier and Williams, were not "policymakers"and thus not liable. App. 61a, 142a-143a. The only claimthat proceeded to trial was Thompson’s § 1983 claim againstthe office. His official capacity claims against the prosecutorsare identical to his claim against the office itself. SeeKentucky v. Graham, 473 U.S. 159, 165-66 (1985); App. 132a.

6 Thompson also sued the State of Louisiana separately

for wrongful conviction. See LA. REV. SWAT. ANN. § 15:572.8

In denying petitioners’ motion for summaryjudgment, App. 138a-142a, the district courtreasoned that, even absent a pattern of Brad, vviolations, a jury could infer from a single violationthat office training showed "deliberate indifference"to Thompson’s rights. App. 138a-139a.7 The courtruled that the following evidence raised a triableissue on deliberate indifference:

¯ the office "knows that Brady issues arecomplex and ambiguous," and yet lackedformal training and a written policyregarding Brad~v compliance;

¯ there had been Brady violations inunrelated cases for which the office couldnot identify corrective measures taken;

(2007). The State has offered to settle that lawsuit for themaximum statutory compensation, $150,000, plus up to$40,000 for prospective claims such as job training, education,and medical expenses. Id. § 572.8(H). The wrongfulconviction suit is based on a different legal standard fromThompson’s Monel] claim against the District Attorney’sOffice. See, e.g., § 572.8(A) (requiring proof that convictionwas reversed or vacated and that petitioner is "factuallyinnocent of the crime").

The court relied on Bryan County, 520 U.S., at 418,and Canton, 489 U.S., at 390 n.10, as well as the FifthCircuit’s decision in Grandstaff v. City o£Borger, 767 F.2d161 (5th Cir. 1985), abrogated on other grounds byLeatherman v. Tarrant County, 507 U.S. 163, 167 (1993).App. 138a-139a. As discussed in Part I.C, infra, the court alsorelied on the Second Circuit’s analysis in Walker v. City ofNew York, 974 F.2d 293, 300 (2nd Cir. 1992). App. 141a-142a.

¯ a judge had written a letter of concern tothe office regarding Brad.vobligations;

¯ a later-written policy manual gave littleguidance on Br,~d.,v and mistakenlylimited Br,~d..v to exculpatory evidence.

See gener,~I].y App. 139a-140a (summarizingPlaintiff’s summary judgment evidence).

Before trial, the parties stipulated that failureto disclose the lab report violated Thompson’srights under Br,~d.y. App. 61a n.7, 22a n.41. Thejury found that, while the violation was not causedby any official policy, it was "substantially causedby the District Attorney’s failure, throughdeliberate indifference, to establish policies andprocedures" to avoid such violations. App. 61a-64a.The jury awarded Thompson $14 million, and thecourt added just over $1 million in attorneys’ fees.App. 64a-65a.

On December 19, 2008, a panel of the UnitedStates Court of Appeals for the Fifth Circuitaffirmed. App. 71a-l13a. On March 11, 2009, theFifth Circuit granted en banc rehearing andvacated the panel decision,s On March 18, 2009,the court asked counsel to brief a number of specificissues, including whether a single incident can give

Since the panel decision has been vacated, thejudgment naming Connick, Dubelier, Williams and Jordanstill remains. This Court’s review should include correctingthat glaring error by the district court. See App. l12a n.27(explaining why the district court erred by including thosedefendants in the judgment). In this petition, Jordan’s namehas been substituted with that of the current Orleans ParishDistrict Attorney, Leon Cannizzaro.

9

rise to failure-to-train liability, and whether adistrict attorney’s culpability can be premised on afailure by independently-trained prosecutors tofollow .Brady. On August 10, 2009, an equallydivided en banc court affirmed the verdict anddamages. App. 2a. Two separate dissents,however, explained why the judgment should havebeen reversed. App. 2a-7a, 9a-44a.9

Writing for six members of the court, JudgeClement would have held that Thompson’s evidenceof a single Brady violation, accompanied only by"diffuse evidence of Brady misunderstandingamong several assistant district attorneys," failedto meet the "heightened standards for culpabilityand causation" for failure-to-train liability. App.13a-14a, 32a, 39a. Agreeing with Judge Clement,Judge Jones wrote separately to highlight "thetroubling tension between this unprecedentedmultimillion dollar judgment against a majormetropolitan District Attorney’s office and thepolicies that underlie the shield of absoluteprosecutorial immunity." App. 2a. Judge Jonesurged this Court to address whether attachingliability to a district attorney’s office underminedthe policies that led the Court, last term,unanimously to reaffirm absolute immunity forprosecutors in Van de Kamp v. Goldstein, 129 S.Ct. 855 (2009). App. 2a-3a.

Petitioners now seek a writ of certiorari fromthis Court.

Judge Prado wrote a concurrence for five judgesexplaining why the judgment should be affirmed. App. 45a-50a.

10

REASONS FOR (]RANTING THE PETITION

In her en banc dissent, Judge Edith BrownClement captured why this case merits review:

We believe it is imperative to explain whythe result in this case should not encouragethe extension of single incident municipalliability under Mone]l.

App. 9a. Judge Clement’s fears are well founded.This case erases the distinction between municipaland vicarious liability, a distinction on whichMonel/was founded. It also caps a progressiveunraveling of the tight limits on municipal liabilityfor failing to train employees. And it does so withrespect to a single instance of deliberateprosecutorial misconduct, thus expanding districtattorneys’ liability for countless decisions theirprosecutors make every day.

The exceedingly high bar for failure-to-trainliability is premised on the idea that municipalitiesare not vicariously liable for employee wrongdoing.See Monell, 436 U.S., at 691. Not only must amunicipality callously ignore an obvious need foremployee training, but its flawed training mustdirectly cause the violation. Canton, 489 U.S., at388-91; Bryan County, 520 U.S., at 404. Theserigorous standards typically demand a persistingpattern of employee wrongdoing. Bryan County,520 U.S., at 409.

But a single instance of wrongdoing may sufficein rare circumstances. This Court hashypothesized only one: failure to train policeofficers on using deadly force. See Canton, 489U.S., at 390 n.10. The Court has never expanded

11

that exception, nor applied it to prosecutors, whohave historically enjoyed special protections fromsuit. See, e.g., Van de Kamp, 129 S. Ct., at 859-60.Circuit courts have applied the exception toprosecutors’ Brady obligations, but in two decadesthey have failed to agree on a consistent approach.

The Fifth Circuit’s evenly split en banc decisionemerges from this persisting confusion. The courthas affirmed a jury verdict that inferred fromprosecutors’ egregious Brady violation that theoffice itself callously ignored Brady training. Butthe evidence showed no history of violationsflagging a need for training, nor did it link anytraining flaw to the deliberate violation inThompson’s case. Moreover, the "uncontradictedand unimpeached" testimony, App. 31a, provedthat office policy was to turn over the kind of reportat issue, regardless of whether prosecutors thoughtit fell under Brady.

The Fifth Circuit should have heeded thewarning that "[a]llowing an inadequate trainingclaim such as this one to go to the jury based upona single incident would only invite jury nullificationof Monell." Canton, 489 U.S., at 399 (O’Connor, J.,concurring in part and dissenting in part). That isprecisely what happened. Once a jury heardThompson’s story--a story being made into afilm1° the outcome was not surprising. It awarded

10 The film, currently in production, will be entitled "TheNine Lives of John Thompson," and will star Matt Damon andBen Affleck as the attorneys who exonerated Thompson. Seehttp://movies.nytimes.com/movie/446373/The-Nine-Lives-of-John-Thompson/details (last visited October 29, 2009).

12

Thompson compensation "roughly equal to [the]office’s annual operating budget."it

The Court should dispel the confusion over howCanton applies to district attorney’s offices.Reviewing this case will allow the Court to developits failure-to-train case law--which consists only ofCanton and Bryan County--and to explainCanton’s elusive single-incident theory. Uniqueproblems arise when the municipality at issue is adistrict attorney’s officemsuch as whether an officecan culpably fail to train professionally educatedcriminal attorneys, and whether any training couldprevent prosecutors from deliberately violating thelaw. More generally, the Court should use this caseto confirm that a failure-to-train claim based on asingle incident is still governed by the rigorousculpability and causation standards of Canton andBryan County. Allowing liability here nullifiesthose safeguards and exposes district attorney’soffices to vicarious liability for a wide range ofprosecutorial misconduct.

This case dovetails with the attention given toprosecutorial immunity last term in Van de Kampand this term in Pottawattarnie County v. McGhee,547 F.3d 922 (Sth Cir. 2008), cert. granted, 129 S.Ct. 2002 (U.S. Apr. 20, 2009) (No. 08-1065).Indeed, the Court’s continuing commitment to

Becky Bohrer, Court upholds $14 million judgmentagainst Orleans DA’s oft~ce, Assoc. PRESS, Aug. 10, 2009. Toprevent a crippling seizure of assets, the office has been forcedto consider bankruptcy. Financial Woes Could Halt JusticeSystem, WDSU.com, Jan. 7, 2009, http://www.wdsu.com/money/18426227/detail.html (last visited October29, 2009).

13

individual prosecutors’ absolute immunityhighlights another compelling reason for review.Last term in Van de Kamp, this Court extendedabsolute prosecutorial immunity to precisely thekind of failure-to-train claims presented in thiscase. Allowing those claims against an office on thesame theory works the same ill-effects onprosecutors’ independence and judgment that Vande Karnp and its predecessors sought to avoid.

For both reasons, this Court should grantcertiorari to review the judgment of the en bancFifth Circuit.

I. THE COURT SHOULD CLARIFY WHEN DISTRICTATTORNEY’S OFFICES MAY BE LIABLE FORINDIVIDUAL PROSECUTORS’ MISCONDUCT.

A. The Court’s decisions narrowly limitfailure-to-train liability for singleincidents.

A municipality is not liable under section 1983simply because it employs a tortfeasor, but only if amunicipal policy or custom directly causes injury.See, e.g., Bryan County, 520 U.S., at 403; Monell,436 U.S., at 690-94. When a policy is itselfunconstitutional, or a polieymaker ordersunconstitutional action, proving fault andcausation is straightforward. See Bryan County,520 U.S., at 404; Pembaur v. City of Cincinnati,475 U.S. 469, 483-84 (1986). But "much moredifficult problems of proof’ arise when liability ispremised, not on a municipality’s action, but on itsfailure to act. Bryan County, 520 U.S., at 406. Insuch eases, "rigorous standards of culpability andcausation must be applied to ensure that the

14

municipality is not held liable solely for the actionsof its employee." Id., at 405 (citing Canton, 489U.S., at 391-92; Oklahoma City v. Turtle, 471 U.S.808, 824 (1985) (plurality opinion)).

Those rigorous standards govern claims alleginga municipality has inadequately trained itsemployees. It is not enough to show that anemployee was poorly trained, that better trainingwould have thwarted his bad act, or that "anotherwise sound program has occasionally beennegligently administered." Canton, 489 U.S., at390-91; see also Bryan County, 520 U.S., at 408.Rather, inadequate training must demonstrate amunicipality’s "deliberate indifferenee"--a callousand conscious disregard for rights. Canton, 489U.S., at 388-89 & n.7; Bryan County, 520 U.S., at407. Additionally, an identified flaw in trainingmust "actually cause" the particular injury.Canton, 489 U.S, at 391; Bryan County, 520 U.S.,at 404. "Where a court fails to adhere to rigorousrequirements of causation and culpability,municipal liability collapses into respondeatsuperiorliability." Bryan County, 520 U.S., at 415.

Failure-to-train liability ordinarily requires anunderlying pattern of employee wrongdoing. See,e.g., Bryan County, 520 U.S., at 409. Withoutwarning from a history of violations, amunicipality’s mere failure to adjust its trainingwould not ordinarily show deliberate indifference,nor directly cause an employee’s wrongdoing.12 By

See, e.g., Bryan County, 520 U.S., at 407 (explainingthat "[i]f a [training] program does not prevent constitutionalviolations, municipal deeisionmakers may eventually be put

15

contrast, culpability and causation could be provenby a municipality’s "continued adherence" totraining whose flaws are exposed by repeatedwrongdoing. Id., at 407 (citing Canton, 489 U.S., at390 n.10).13

In "a narrow range of circumstances," failure-to-train liability may be triggered by an employee’ssingle violation, tYr~van County, 520 U.S., at 409.The theory emerges from this language in Canton:

For example, city policymakers know to amoral certainty that their police officers willbe required to arrest fleeing felons. The cityhas armed its officer with firearms, in part toallow them to accomplish this task. Thus,the need to train officers in theconstitutional limitations on the use ofdeadly force can be said to be "so obvious,"that failure to do so could properly becharacterized as "deliberate indifference" toconstitutional rights.

489 U.S., at 390 n.10 (citation omitted). Even insuch a situation, Canton did not relax its stringentfault and causation requirements. Id., at 391.Justice O’Connor’s concurrence also cautionedagainst diluting those safeguards:

on notice that a new program is called for") (emphasisadded).

13 See, e.g., Bryan County, 520 U.S., at 407-08

(observing that "the existence of a pattern of tortious conductby inadequately trained employees may tend to show that thelack of proper training ... is the ’moving force’ behind theplaintiffs injury") (citing Canton, 489 U.S, at 390-91).

16

Without some form of notice to the city, andthe opportunity to conform to constitutionaldictates both what it does and what itchooses not to do, the failure to train theorycould completely engulf Mone]l, imposingliability without fault.

Id., at 395 (O’Connor, J., concurring in part anddissenting in part).

Justice O’Connor revisited this subject in BryanCounty. Canton, she explained, left open the"possibility" that failure-to-train liability mightflow from a single violation. Bryan County, 520U.S., at 409 (citing Canton, 489 U.S., at 390 &n.10). In doing so, however, Canton "simplyhypothesized that, in a narrow range ofcircumstances, a violation of federal rights may bea highly predictable consequence of a failure toequip law enforcement officers with specific tools tohandle recurring situations." Bryan County, 520U.S., at 409.

The Court, then, has emphasized that plaintiffssuing a municipality for failure to train employeesface an exceedingly high bar, especially in thoserare situations where liability depends on a singleincident. Furthermore, the only concrete exampleof such a situation is Canton’s hypothetical--whichthe Court has never since clarified--of a policedepartment’s failure to train officers about deadlyforce. As discussed in Parts I.B and I.C, infra,circuit courts have struggled to apply thathypothetical to cases like Thompson’s.

17

B. In two decades, circuit courts have notdeveloped a consistent approach toapplying single-incident liability toBradyviolations.

Federal circuit courts have recognized thatsingle-incident liability is exceptional, and thatfailure-to-train usually demands a pattern ofviolations.14 They confine single-incident liabilitylargely to situations like Canton’s deadly forcehypothetical.15 In fact, until Thompson, the onlytime the Fifth Circuit had found single-incidentliability was an excessive force case that closelytracked the Canton hypothetical. See Brown v.Bryan County, 219 F.3d 450 (5th Cir. 2000); App.16a-18a (discussing Brown). But now four circuits,including the Fifth, have confronted single-incidentliability based on an alleged failure to trainprosecutors or officers on Brady. Although thesecourts have applied the same Canton hypothetical,they do not agree on the proper analysis and theyreach inconsistent results.

14 See, e.g., Doe v. Broderick, 225 F.3d 440, 456 (4th Cir.

2000); Revene v. Charles Cry. Comm’rs, 882 F.2d 870, 874-75(4th Cir. 1989); Robles v. City of Fort Wayne, 113 F.3d 732,736 (7th Cir. 1997); Szabla v. City of Brooklyn Park, 486 F.3d385, 392-93 (8th Cir. 2007) (en banc); McDade v. West, 223F.3d 1135, 1141-42 (9th Cir. 2000); Gold v. City of MiamL 151F.3d 1346, 1351 (llth Cir. 1998).

15 See, e.g., Young v. City of Providence, 404 F.3d 4, 28-29 (1st Cir. 2005); Brown v. Gray, 227 F.3d 1278, 1286-87(10th Cir. 2000).

18

The earliest decision in this area is Walker v.City of New York, 974 F.2d 293 (2nd Cir. 1992).16

Building on Canton, Walker developed a three-parttest to analyze a failure-to-train claim based on aprosecutor’s covering up impeachment evidence.Id. at 294-95, 296-97 (discussing Canton, 489 U.S.,at 390 n.10).17 Under that test, failure to trainprosecutors on Brady in 1971 could constitutedeliberate indifference, because: (1) a districtattorney knows "to a moral certainty that ADAswill acquire Brady material"; (2) in 1971, Bradyobligations were not so obvious as to require notraining; and (3) withholding Brady material "willvirtually always lead to a substantial violation ofconstitutional rights." Id. at 300.

Walker, however, limited itself to the timeperiod and evidence at issue. Brady was relativelynew in 1971--the time of the violation in Walkerand the Second Circuit took "no view as to whether... a jury finding [on deliberate indifference] wouldbe supportable in other time periods, or with

From the outset, Walker observed that municipalliability raised "elusive questions," such as whether "a singleincident [can] constitute an unlawful policy." Id., at 296; seeaIso Robles, 113 F.3d, at 735 (describing Cantods failure-to-train standard as "somewhat elusive") (citation omitted).

Generally, the test requires showing that (1) apolicymaker knows "to a moral certainty" that employees willconfront a given situation; (2) the situation "either presentsthe employee with a difficult choice of the sort that training orsupervision will make less difficult or that there is a history ofemployees mishandling the situation"; and (3) the employee’s"wrong choice ... will frequently cause the deprivation of acitizen’s constitutional rights." 972 F.2d, at 297-98.

19

respect to other kinds of exculpatory evidence." Id.Unlike disclosure of impeachment evidence, Walkersuggested "there might have been no need in 1971to train ADAs to disclose direct evidence that theaccused was elsewhere at the time of the crime."Id. The Second Circuit has since re-affirmedWalker, while explaining that it is subject to theheightened culpability and causation standardsemphasized by this Court in Bryan County. is

The Eighth Circuit recently confronted the samesituation as Walker--failure-to-train based on aprosecutor’s nondisclosure of impeachmentmaterial--but without mentioning Walkers three-part test. See Reasonover v. St. Louis County, 447F.3d 569, 583-84 (8th Cir. 2006). Instead, the courtsimply applied the stringent culpability andcausation requirements from Canton and BryanCounty. Thus, the court emphasized that allegedlyinadequate training must not only show deliberateindifference, but also constitute "the moving forcebehind the constitutional violation." Id., at 583(quoting Canton, 489 U.S. at 388, 389). Theevidence--that the prosecutor was aware of Bradyobligations and that county policy was to discloseBrady material--failed to show that the particularviolations "were the result of inadequate trainingor supervision." Id., at 584. The court did not even

is See Amnesty America v. Town of West Hart£ord, 361F.3d 113, 130 n.10 (2nd Cir. 2004); see also Aretakis v.Durivage, No. 1:07-CV-1273, 2009 WL 249781, at *28-*30(N.D.N.Y. Feb. 3, 2009) (slip op.) (applying Walker in light ofheightened culpability and causation).

20

hint that a single Brady violation could underpin afailure-to-train claim.19

By contrast to the Eighth Circuit, the SixthCircuit has, on two recent occasions, allowedfailure-to-train claims based on single-incidentBrady violations involving police officers. Bothdecisions implicitly held that a pattern of Bradyviolations was not required to establish failure-to-train liability. In neither case, however, did thecourt follow the Second Circuit’s three-stepapproach in Walker.

For instance, in Gregory v. City of Louisville,the Sixth Circuit held that plaintiffs survivesummary judgment "by showing that officertraining failed to address the handling ofexculpatory materials and that such a failure has a’highly predictable consequence’ of" causing Bradyviolations. 444 F.3d 725, 753 (6th Cir. 2006). Theofficers had received no Brady training and thechief of police "believed officers were confused"about Brady. /d., at 753-54. The court reasonedthat, because disclosure obligations are "asignificant constitutional component of policeduties with obvious consequences for criminaldefendants," evidence of failure to train on thoseduties satisfies culpability and causation. Id., at754. The court recently confirmed Gregory inMoldowan v. City of Warren, 578 F.3d 351, 393 (6th

Indeed, in rejecting plaintiffs claim that the countyhad a custom of failing to document Brady material, the courtremarked that the plaintiff "presents no evidence of awidespread practice of violating police and prosecutorialobligations under Brady." Id., at 584.

21

Cir. 2009). Moldowan reasoned that, becausepolice2° had a duty to turn over exculpatoryevidence, Canton "dictates that the City has acorresponding obligation to adequately train itsofficers in that regard." Id. MoIdowan said nothingabout heightened causation.

In sum, the Second, Eighth, and Sixth Circuitshave failed to arrive at a consistent approach tofailure-to-train claims involving Brady obligations.The Second Circuit’s Walker analysis, now nearlytwo decades old, has not been adopted by either theEighth or the Sixth Circuits. The Sixth Circuitagrees with the Second, however, that single Bradyviolations can support a failure-to-train claim,whereas the Eighth has reached a differentconclusion. Furthermore, the Second21 and theEighth Circuits subject such failure-to-train claimsto the rigorous culpability and causation standardsof Canton and Bryan County, whereas the SixthCircuit is more lenient. Finally, the SecondCircuit’s seminal Walker test is ambiguous on itsown terms: it suggests that obvious or later-occurring Brady violations may not support failure-to-train liability against a district attorney’s office.None of the other circuits have developed thatcritical aspect of Walker.

2o Moldowan expressly held that Brady obligations apply

to police officers. 578 F.3d, at 376-81. But the court did notindicate that its failure-to-train analysis would apply anydifferently to prosecutors--indeed, it found police officers hadBradj~ obligations by analogy to prosecutors. Id.

See note 18, supra, and accompanying text.

22

This confusion has resulted from lower courtsattempting to apply Cantods single-incidenthypotheticalminvolving police training on deadlyforce--to the very different matter of Bradyobligations. The divergent approaches reveal notonly inconsistency but stagnation: courts have notapproached the same situations in a way that willsensibly elucidate, over time, how Canton shouldapply to prosecutors. The Fifth Circuit’s approachin Thompson, infra Part I.C., adds to the confusionand alsoemerges from contradictory circuitprecedent.

C. The Fifth Circuit’s approach inThompson deepens the confusion.

The Fifth Circuit demonstrates the deepconfusion plaguing this area of municipal liability.Not only does the court’s approach in Thompsonadd another layer of uncertainty to the othercircuits, but the Fifth Circuit’s own case law nowcontradicts itself on whether single Bradyviolations can support a failure-to-train claim.Indeed, the area is so murky that, four years beforeThompson, a Fifth Circuit panel examined therecord of the same district attorney’s office andfound no history of Brady violations showingdeliberate indifference.

The Fifth Circuit’s approach in this arearesembles the Second Circuit’s, at leastsuperficially. Thompson’s jury, for instance, wasinstructed under the three-part Walker test. App.94a & n.20. The district court denied summaryjudgment based on the Walker analysis, App. 141a-142a, and the panel relied on Wa]kerto support the

23

conclusion that "Thompson did not need to prove apattern of Brady violations to demonstrate that thefailure to train was deliberately indifferent." App.80a (citing WaIker, 974 F.2d, at 300); see alsogenerally App. 72a-80a (discussing whether patternof violations is necessary).

But there was no attempt to grapple, as Walkerdid, with the nuances of Brady--such as howdeliberate indifference applies to a violationoccurring long after Brady or concerning differentBrady material. Thompson’s violation occurredfourteen years after Walker’s, and, since it involvedexculpatory as opposed to impeachment evidence, itwas an obvious breach. Cf. Walker, 974 F.2d at300. Furthermore, Thompson presented evidenceof diffuse disagreement about Brady not directlylinked to the particular violation, see infra PartI.D, evidence that might satisfy Sixth Circuit butfail Eighth Circuit standards. See supra Part I.C.Such evidence, moreover, would likely fail in theSecond Circuit, given its confirmation that theWalker test incorporates heightened culpabilityand causation. See Amnesty America, 361 F.3d at130 n.10.~2

22 And c£ Babi-Ali v. City o£New York, 979 F.Supp. 268,

274 (S.D.N.Y. 1997) (finding Walker "still applies" to a claimraised "thirty-four years after the Brady deeision," but inwhich plaintiff alleged "that the conduct of the QueensCounty District Attorney’s Office indieates a history ofmishandling Brady material"); see also, e.g., Gaus~k v.Perez, 239 F.Supp.2d 1047, 1057 (E.D. Wash. 2002)(distinguishing Walker in part beeause "[p]laintiff wasprosecuted in 1995, over thirty years after Brady wasdecided").

24

The Fifth Circuit’s own case law mirrors theinter-circuit confusion. Until Thompson, the FifthCircuit had "consistently rejected application of thesingle incident exception." Gab~el v. City of Piano,202 F.3d 741, 745 (5th Cir. 2000); App. 16a.2~

Indeed, only four years before Thompson’s federaltrial, the Fifth Circuit had addressed Bradyenforcement by Orleans Parish District AttorneyHarry Connick--the same district attorney over thesame office during the same time period. SeeCousin v. Sma]], 325 F.3d 627, 637-38 (5th Cir.2003). Cousin found that Connick’s "enforcement ofthe [Brady] policy was not patently inadequate orlikely to result in constitutional violations," andobserved that:

... Connick’s office handled tens of thousandsof criminal cases over the relevant timeperiod, and we agree with the [district]court’s conclusion that citation to a smallnumber of cases, out of thousands handledover twenty-five years, does not create atriable issue of fact with respect to Connick’s

See also Cozzo v. Tang~pahoa Parish Council-President Gov’t, 279 F.3d 273, 288 (5th Cir. 2002); Snyder v.T~epagnier, 142 F.3d 791, 798 (Sth Cir. 1998) (rejectingsingle-incident liability); App. 16a n.24. The one exceptionwas on remand in Bryan County itself, which featuredinadequate training identical to the Canton hypothetical. SeeBrown v. Bryan County, 219 F.3d 450, 458-61 (5th Cir. 2000);App. 16a-17a (discussing Brown). Even so, one judgedissented in Brown, urging the panel had misapplied circuitprecedent on single-incident liability and further arguing thatthis Court had narrowed the theory in Bryan County. SeeBrown, 219 F.3d at 474-77 (DeMoss, J., dissenting).

25

Id.

deliberate indifference to violations of Bradyrights.

Cousin thus considered--and approved--thesame office’s record of Brady enforcement duringthe time period covering Thompson’s ease. Id., at630, 637.24 Furthermore, Cousin required a patternof Brady violations: it did not even hint that oneviolation could suffice. Id., at 637 (explaining that"[t]o satisfy the deliberate indifference prong, aplaintiff usually must demonstrate a pattern ofviolations").25

In sum, Thompson deepens persistinguncertainty, both inside and outside the FifthCircuit, over when failure-to-train liability mayattach to a single Brady violation. The issuehaving stagnated for the past two decades,Thompson signals the time is ripe for this Court’sintervention. As the next section demonstrates,

24 Judge Prado’s Thompson panel opinion distinguished

Cousin on the ground that the plaintiff conceded that theoffice’s Brady training was adequate in 1995, which "saysnothing of the training, supervision, and monitoring thatexisted when the DA’s Office tried Thompson in 1985." App.88a-89a. But that misses Cousin’s significance. As JudgeClement explained, Cousin "sustained the district court’sconclusion that twenty-five years of records involving thisDistrict Attorney’s Office (covering the time period ofThompson’s trial) reveal no pattern of Bradyviolations." App.25a.

See also Burge v. St. Tammany Parish, 336 F.3d 363,372-73 (5th Cir. 2003) (declining plaintiffs "argument thatthe single-incident exception should be expanded based on thelatent nature of a Brady claim").

26

infra Part I.D, Thompson collapses municipal andrespondeat superior liability for a potentially widerange of proseeutorial misconduct and thusdramatizes the hazards of applying single-incidentliability to a district attorney’s office.

D. The Fitth Circuit has effectivelyimposed vicarious liability on adistrict attorney’s office.

The work of district attorney’s offices embracescountless judgments by individual prosecutorsregarding evidence disclosure. With Thompson, theFifth Circuit has essentially adopted a per se rulethat offices failing to train adequately on Bradycould be liable for every violation committed intheir officesmregardless of how rarely or underwhat circumstances they occur. And this rulelogically embraces any other violation involving aprosecutor’s lapse of discretionary judgment. App.27a. That rule cannot be right: it dilutes Canton’s"rigorous requirements of culpability andcausation," Bryan County, 520 U.S., at 415,exposing district attorney’s offices to vicariousliability. The Court should grant certiorari totemper Canton’s application to this fertile source ofdamaging municipal liability.

(1). Thompson failed to show culpabilityand causation.

Judge Clement’s en banc dissent correctlyexplains that the culpability inquiry must focus onthe kind of undisclosed evidence at issue, andwhether there was an obvious need to train

27

prosecutors about it. App. 14a-18a, 22a-24a.26

Thus, the question was not whether the officeculpably failed to train about Brady generally, butwhether it culpably "fail[ed] to train on how tohandle specific types of evidence such as the crimereport at issue." App. 24a.27

Thompson’s evidence failed that standard.Principally, he could rely only on the singleviolation because he proved no pattern of similarincidents. App. 25a. In tens of thousands of caseshandled by Connick’s office in the previous decade,"only four convictions were overturned based onBrady violations ... and there was not a singleinstance involving the failure to disclose a crimelab report or other scientific evidence." App. 25a.Nor could Thompson identify any reported decisionalerting Connick to train on this issue. After all,the Fifth Circuit had already found no pattern ofBrady violations by his office during the relevantperiod. App. 26a; see supra Part I.C.

Against this, Thompson merely offered "genericgeneralizations" that "could ... support a deliberateindifference finding against any prosecutor’s officefor nearly any error that leads to a reversal of aconviction." App. 27a-28a. Evidence that Bradyissues were common, or that prosecutors thoughtBrady had "gray areas," proved nothing. As Judge

See, e.g., Canton, 489 U.S., at 391 (requiring that "theidentified deficiency in a city’s training program must beclosely related to the ultimate injury").

27 Cf. Walker, 974 F.2d, at 300 (reserving question ofhow deliberate indifference applies "with respect to otherkinds of exculpatory evidence").

28

Clement explained, such evidence would applyequally to any district attorney’s office, and wouldimplicate every discretionary issue prosecutorsconfront, including "Brady, search and seizure,Miranda, evidence of a defendant’s other crimes,expert witnesses, sentencing, or many more." App.26a-27a.

Prosecutors, moreover, are not just anymunicipal employees. They are "licensed attorneys... personally responsible as professionals to knowwhat Brady entails and ... to understand the ’grayareas.’" App. 29a. This is the last case wherediffuse evidence of Brady confusion should showdeliberate indifference by a district attorney, who is"entitled to assume that attorneys will abide by thestandards of the profession." App. 29a. It would,moreover, be especially inappropriate where--despite theoretical disagreements over Brady~"every single witness who was asked stated thatthey would have disclosed the crime lab report hadthey known about it." App. 31a.

The evidence also failed heightened causation.As Judge Clement explained, Thompson wasrequired to establish "by substantial evidence" that"unfamiliarity with Brady obligations with respectto this lab report was the actual cause--the movingforco~of this constitutional violation." App. 33a(emphasis in original). Thompson did not meetthat stringent standard.

Thompson’s sole theory of causation was thatone or more assistant district attorneys did notdisclose the report because they misunderstoodtheir obligation to produce it, and that Brady

29

training would have prevented that. App. 35a-36a.The evidence of what led to nondisclosure wasmurky, App. 33a, but at most Thompson showedsome possible confusion about Bradj?s applicationto impeachment evidence, and some disagreementabout whether Brady reached potentiallyexculpatory lab reports. App. 37a-38a.

This evidence cannot show that failure to trainon Brady was "the actual cause and moving forcebehind the constitutional violation." App. 38a. Forinstance, any confusion about Bradj?s coverage ofimpeachment evidence was irrelevant: the labreport was exculpatory, not impeaching. App. 38a-39a. Furthermore, any disagreement aboutwhether Brady reached the report could notovercome the uncontradicted evidence that officepolicy was to turn over all lab reports regardless.App. 31a. The same witness who testified thatBrady did not reach every lab report also "statedunequivocally that all technical or scientificreports, like the lab report, were required to beturned over to a defendant." App. 38a (emphasis inoriginal).

Ultimately, as Judge Clement explained,Thompson’s causation argument boiled down toinsisting that a jury could have rejected the theorythat a "single rogue prosecutor" was solelyresponsible for hiding the evidence. App. 36a-37a.But regardless of whether one or more of the fourprosecutors participated in the nondisclosure,Thompson had to prove a "direct causal link"between the nondisclosure and of Sce policy. Bryan

3O

County, 520 U.S., at 404.28 It was not enough toshow that absence of Brady training made thisviolation "more likely," see id., at 410-11, nor "thatan injury ... could have been avoided if[prosecutors] had had better or more training."Canton, 489 U.S., at 391. Rather, Canton requiresthat "the identified deficiency in a ... trainingprogram must be closely related to the ultimateinjury," 489 U.S., at 391 (emphasis added).Thompson’s proof failed that standard. App. 37a-39a.

(2). Applying "failure-to-train~ to ttn’ssingle incident collapses municipaland vicmfous liability.

Even as it allowed municipal liability under §1983, this Court cautioned that "a municipalitycannot be held liable solely because it employs atortfeasor--or, in other words, ... on a respondeatsuperior theory." Monell, 436 U.S., at 691(emphasis in original). Both Canton and BryanCounty reissued that warning. See Canton, 489U.S., at 391-92; Bryan County, 520 U..S., at 415.Justice O’Connor even predicted that allowingcertain inadequate training claims "to go to thejury based upon a single incident would only invitejury nullification of Monell." Canton, 489 U.S., at399 (O’Connor, J., concurring in part and

See, e.g., App. 37a (explaining that Thompson wasrequired to prove that "the assistant district attorney (orattorneys) responsible for the constitutional violation did notunderstand Brady, that this lack of understanding caused thefailure to produce the report, and that Brady training couldhave resolved this lack of understanding’).

31

dissenting in part). Now Thompson has fulfilledJustice O’Connor’s prediction. The en banc FifthCircuit has allowed a jury--based solely on thesingle instance of deliberate prosecutorialmisconduct--to impose liability on a districtattorney’s office, where the evidence failed toestablish that the ofl~ee was at fault.

The essence of vicarious liability is to make anemployer answerable for an employee’s wrongdoingsimply by virtue of the employment relationship.That can be the only fair description of the basis forliability in this case. No history of similarviolations should have alerted Connick that heneeded training targeted to this sort of Bradyproblem. Nothing warned him not to rely on hisprofessional prosecutors’ independent training andjudgment in obeying Brady. And nothing warnedhim that the existing office policy--to turn over allcrime lab reports, regardless of whether they fellunder Brady, App. 31a-32a, 38a--would not resolveexactly the situation presented in Thompson’s case.In sum, no evidence showed that Connick or hisoffice had the callous, conscious disregard Cantondemands.

Nor did any evidence establish a tangible linkbetween the office’s lack of Brady training and thenondisclosure in Thompson’s case. Instead,Thompson merely presented a haze ofgeneralizations. The fact that certain prosecutorsexpressed doubts after the fact about their Bradyobligations shed no light on what actually causedthe violation in Thompson’s case. And, again, noevidence overcame the fact that the office’s actualpolicy was to turn over all crime lab reports,

32

regardless of Brady. App. 31a-32a, 38a. The jury,after all, affirmatively found that Thompson’sviolation was not caused by an actual office policy.App. 39a, 64a. The events that led to the deliberatenondisclosure in Thompson’s case are nowimpossible to reconstruct, but one thing is clear:the office’s training policy did not cause it.

What allowed the Fifth Circuit to diluteculpability and causation is Canton’s single-incident theory--Le., Canton’s suggestion thatcertain duties so obviously cry out tbr targetedtraining that a municipality’s failure to do socreates liability, even absent a pattern of violations.See 489 U.S., at 390 & n.10. But whatever thebreadth of single-incident liability, the Courtshould clarify that it has little application to thiscase. Absent a warning history of particularviolations, there can be no obvious need to trainprosecutors who are themselves professionallytrained to understand and apply the law.Moreover, a district attorney’s office cannot beculpable for, or the moving force behind, a singleconstitutional injury intentionally committed byprosecutors. No amount of training could preventsuch flagrantly unlawful and unethical acts.

The time is long past due for the Court to revisitthe subject of single-incident liability in failure-to-train cases. Canton embraced it in theory twentyyears ago, but the Court has not clarified its scopesince. The only guidance remains the singlehypothetical in Canton’s footnote. But, in over twodecades, the circuit courts have not managed tobuild from that hypothetical a coherent, consistentapproach to the subject, particularly in situations

33

involving prosecutors. The inevitable result isThompson itself." because the Fifth Circuit "fail[ed]to adhere to rigorous requirements of causation andculpability, municipal liability collapse[d] intorespondeat superior liability." Bryan County, 520U.S., at 415.

II. THE COURT SHOULD ALSO REVIEW WHETHERHOLDING A DISTRICT A2WORNEY’S OFFICELLn, BLE UNDER CANTON EVISCERATESPROSECUTORS’ ABSOLUTE IMMUNITY.

The Fifth Circuit’s overextension of single-incident liability not only contravenes Canton, butalso undermines the absolute immunity thatshields individual prosecutors from failure-to-trainclaims. Chief Judge Jones’ separate en bancdissent highlights this distinct and compellingreason for review. App. 2a-7a. Last term, thisCourt unanimously extended absolute immunity toclaims that supervising prosecutors failed to trainline prosecutors on their obligations to discloseimpeachment evidence. See Van de Kamp v.Goldstein, 129 S.Ct. 855, 864-65 (2009). The Courtshould now decide whether holding the office itselfliable on the same theory works the same ill-effectson prosecutors’ independence and judgment thatVan de Kamp and its predecessors sought to avoid.

Absolute immunity has long protectedprosecutors from litigation attacking the exercise oftheir core public functions. See generally Imbler v.Pachtrnan, 424 U.S. 409 (1976). Without thisbarrier, harassing litigation risks squandering aprosecutor’s limited resources and diluting hisjudgment. See Van de Kamp, 129 S.Ct., at 860

34

(describing policies underlying absolute immunityas avoiding "a deflection of the prosecutor’senergies from his public duties" and "shad[ing] hisdecisions instead of exercising his independence ofjudgment required by the public trust"). Van deKamp extended absolute immunity to prosecutors’duties to supervise the management and disclosureof impeachment evidence. Id., at 861-64. Thus,individual prosecutors are immune from suitsalleging failure "to adequately train and supervisedeputy district attorneys" on disclosure obligations,and "fail[ure] to create any system" for managingimpeachment evidence. Id., at 861; see alsogenerally Giglio v. United States, 405 U.S. 150(1972) (establishing duty to disclose impeachmentevidence).

Municipalities, of course, cannot claim personalimmunities against § 1983 litigation, see Kentuck, vv. Graham, 473 U.S. 159, 167 (1985),29 yet holding

Nor could the district attorney’s office in this caseclaim Eleventh Amendment immunity. See Hudson v. City o£New OrIeans, 174 F.3d 677, 682-691 (5th Cir. 1999)(concluding that Orleans Parish District Attorney’s Office isnot an arm of the state and thus not entitled to EleventhAmendment immunity). Since the issue depends on statestructural and funding policies, the Eleventh Amendmentimmunity of district attorneys’ offices varies considerably.Compare Del Campo v. Kennedy, 517 F.3d 1070, 1073 (9thCir. 2008) (California district attorneys entitled to EleventhAmendment immunity); Brooks v. George County, 84 F.3d157, 168 (5th Cir. 1999) (Mississippi district attorneys);Arnold v. McClain, 926 F.2d 963, 965-66 (10th Cir. 1991)(Oklahoma district attorneys), with Carter v. City ofPhiladelphia, 181 F.3d 339, 355 (3rd Cir. 1999) (Pennsylvaniadistrict attorneys not entitled to Eleventh Amendment

35

an office liable on precisely the same claims fromwhich prosecutors are absolutely immune sitsuncomfortably with Van de Kamp. As Chief JudgeJones noted, "every reason advanced in V~n de/(~mp and Imb]e~-for protecting the independenceand integrity of prosecutors in trial-related actionsand supervision suggests that holding agovernment entity liable in their stead for the sameviolations is simply untenable." App. 6a. The"office," after all, does not act: rather, a web ofindividual prosecutors acts on its behalf. A failure-to-train claim against the office will impose thesame judgment-distorting burdens of litigation onthe same prosecutors who are nominally protectedfrom them by absolute immunity. See App. 4a(explaining that "[a]uthorizing Section 1983liability against the office creates the same stresson the proper function of the office" as suing theindividual prosecutors).

Var~ de Kamp stressed that the primary aim ofabsolute immunity was "the interest in protectingthe proper functioning of the of Sce, rather than theinterest in protecting its occupant." 129 S.Ct., at862 (quoting Kalina v. FIetc.ber, 522 U.S. 118, 125(1997) (emphasis added)). In light of that rationale,this Court should resolve whether allowing failure-to-train liability against the office devalues theabsolute immunity of individual prosecutors andtheir supervisors. Van de Kamp, for instance, heldthat absolute immunity barred suit against a line

immunity); Crane v. State of Texas, 766 F.2d 193, 195 (5thCir. 1985) (Texas district attorneys).

36

prosecutor for a Giglio violation and also againsthis supervisor for failure to train him on Giglio.The Court reasoned that "Imblefs basic fear" wasimplicated in both situations, i.e. that "the threat ofdamages liability would affect the way in whichprosecutors carried out their basic court-relatedtasks." Van de Karnp, 129 S.Ct., at 862.

This case starkly illustrates the tension betweenVan de Kamtis extension of absolute immunity tosupervisory prosecutors, on the one hand, andholding prosecutorial offices liable for failure totrain, on the other. That tension is only heightenedby the fact that "the jury was permitted to inferSection 1983 deliberate indifference and causationbased on a single incident of withheld Bradyevidence." App. 5a. Even the prosecutors whointentionally withheld exculpatory evidence wouldhave been shielded by absolute immunity. But--without any evidence of a pattern of similarwrongdoing, and without any evidence that theviolation was actually caused by inadequatetraining--a jury has now been permitted to assess$14 million in damages against the office thatemployed the prosecutors. This Court should grantcertiorari to consider whether that result iscompatible with Van de Karnp and the absoluteprosecutorial immunity it upheld.

37

CONCLUSION

The petition for a writ of certiorarigranted.

Respectfully submitted,

should be

JAMES D. "BUDDY"CALDWELL

Louisiana AttorneyGeneral

S. KYLE DUNCANAppellate Chief

ROBERT ABENDROTHAssislant AttorneyGeneral

LOUISIANA DEPARTMENTOF JUSTICEP.O. Box 94005Baton Rouge, LA 70804(225) 326-6008

WILLIAM D. AARON, JR.GOINS AARON, APLC201 St. Charles Ave.,Ste. 3800New Orleans, LA 70170(504) 569-1800

LEON A. CANNIZZARO, JR.Orleans ParishDistrict Attorney

GRAYMOND F. MARTINFirst Assistan tDistrict Attorney

DONNA ANDRIEUCounsel of ReeordChief of Appeals

ORLEANS PARISHDISTRICT ATTORNEY’SOFFICE619 South White StreetNew Orleans, LA 70119(504) 822-2414

COUNSEL FOR PETITIONERS

Blank Page