Thursday, April 07, 2011

Connick v. Thompson: obviousness as "highly predictable"

The legal issue in Connick v. Thompson:

A municipality may be liable under 42 U.S.C.
§ 1983 for a failure to train employees that shows
deliberate indifference to, and actually injures, the
rights of citizens. City of Canton v. Harris, 489
U.S. 378, 389-91 (1978). A history of employee
wrongdoing is ordinarily necessary to prove failure-
to-train liability, but a single incident may suffice
in rare cases. The Court has hypothesized only
one—a failure to train armed police officers on
using deadly force. The question presented in this
case is:

Whether failure-to-train liability may be
imposed on a district attorney’s office for a
prosecutor’s deliberate violation of Brady v.
Maryland, 373 U.S. 83 (1963), despite no history of
similar violations in the office.

Within the majority opinion:

Attorneys are trained in the law and equipped with the
tools to interpret and apply legal principles, understand
constitutional limits, and exercise legal judgment. Before
they may enter the profession and receive a law license,
all attorneys must graduate from law school or pass a
substantive examination; attorneys in the vast majority of
jurisdictions must do both. See, e.g., La. State Bar Assn.
(LSBA), Articles of Incorporation, La. Rev. Stat. Ann. §37,
ch. 4, App., Art. 14, §7 (1988 West Supp.) (as amended
through 1985). These threshold requirements are de-
signed to ensure that all new attorneys have learned how
to find, understand, and apply legal rules. Cf. United
States v. Cronic, 466 U. S. 648, 658, 664 (1984) (noting
that the presumption “that the lawyer is competent to
provide the guiding hand that the defendant needs” ap-
plies even to young and inexperienced lawyers in their
first jury trial and even when the case is complex).

Nor does professional training end at graduation. Most
jurisdictions require attorneys to satisfy continuing-
education requirements.
See, e.g., LSBA, Articles of In-
corporation, Art. 16, Rule 1.1(b) (effective 1987); La. Sup.
Ct. Rule XXX (effective 1988). Even those few jurisdic-
tions that do not impose mandatory continuing-education
requirements mandate that attorneys represent their
clients competently and encourage attorneys to engage in
continuing study and education. See, e.g., Mass. Rule
Prof. Conduct 1.1 and comment 6 (West 2006). Before
Louisiana adopted continuing-education requirements, it
imposed similar general competency requirements on its
state bar. LSBA, Articles of Incorporation, Art. 16, EC 1–
1, 1–2, DR 6–101 (West 1974) (effective 1971).

Trial lawyers have a “duty to bring to bear such skill and
knowledge as will render the trial a reliable adversarial
testing process.” Strickland v. Washington, 466 U. S. 668,
688 (1984).

In light of this regime of legal training and professional
responsibility, recurring constitutional violations are not
the “obvious consequence” of failing to provide prosecutors
with formal in-house training about how to obey the law.
Bryan Cty., 520 U. S., at 409. Prosecutors are not only
equipped but are also ethically bound to know what Brady
entails and to perform legal research when they are uncer-

As the Court said in
Canton, “[i]n virtually every instance where a person has
had his or her constitutional rights violated by a city
employee, a §1983 plaintiff will be able to point to some-
thing the city ‘could have done’ to prevent the unfortunate
incident.” 489 U. S., at 392 (citing Tuttle, 471 U. S., at 823 (plurality opinion)).

But failure-to-train liability is concerned with the
substance of the training, not the particular instructional
format. The statute does not provide plaintiffs or courts
carte blanche to micromanage local governments through-
out the United States.
We do not assume that prosecutors will always make
correct Brady decisions or that guidance regarding specific
Brady questions would not assist prosecutors. But show-
ing merely that additional training would have been
helpful in making difficult decisions does not establish
municipal liability. “[P]rov[ing] that an injury or accident
could have been avoided if an [employee] had had better or
more training, sufficient to equip him to avoid the particu-
lar injury-causing conduct” will not suffice. Canton, su-
pra, at 391. The possibility of single-incident liability that
the Court left open in Canton is not this case.10
The reason why the
Canton hypothetical is inapplicable is that attorneys,
unlike police officers, are equipped with the tools to find,
interpret, and apply legal principles.

IPBiz notes that New Jersey has just recently implementing
continuing education requirements.

One notes that the concept of "obviousness" arises in the Connick case:

The District Court and the Court of Appeals panel erro-
neously believed that Thompson had proved deliberate
indifference by showing the “obviousness” of a need for
additional training.

It does not follow that, because Brady has gray areas
and some Brady decisions are difficult, prosecutors will so
obviously make wrong decisions that failing to train them
amounts to “a decision by the city itself to violate the
Constitution.” Canton, 489 U. S., at 395 (O’Connor, J.,
concurring in part and dissenting in part). To prove delib-
erate indifference, Thompson needed to show that Connick
was on notice that, absent additional specified training, it
was “highly predictable” that the prosecutors in his office
would be confounded by those gray areas and make incor-
rect Brady decisions as a result. In fact, Thompson had to
show that it was so predictable that failing to train the
prosecutors amounted to conscious disregard for defen-
dants’ Brady rights. See Bryan Cty., 520 U. S., at 409;
Canton, supra, at 389. He did not do so.

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