Petition for Writ of Certiorari — Bernard v. Connick
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Supreme Court of the United States
October Te. a, 1993
4--
ERROL BERNARD,
Petitioner,
HARRY CONNICK, INDIVIDUALLY AND
IN HIS OFFICIAL CAPACITY AS
NEW ORLEANS DISTRICT ATTORNEY,
Respondent.
Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Fifth Circuit
PETITION FOR A WRIT OF CERTIORARI
Gary W. BIZAL
Pierce & BIZzAL
639 Loyola Avenue,
Suite 1620
New Orleans, Louisiana
70113
Telephone: (504) 525-1328
Mack E. BARHAM
Rospert E. ARCENEAUX*
KatHy S. AUSTIN
BARHAM & ARCENEAUX
A Professional Law
Corporation
Poydras Center, Suite 2700
650 Poydras Street
New Orleans, Louisiana
70130
Telephone: (504) 525-4400
Counsel of Record*
Attorneys for Petitioner, Errol Bernard
COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
OR CALL COLLECT (402) 342-2831
I.
ITI.
QUESTIONS PRESENTEi:
Was the right to exculpatory evidence articulated in
Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10
L.Ed.2d 7'S (1963), sufficiently established in 1975 so
as to resu* in a denial of a defense of qualified immu-
nity to a district attorney in his individual capacity in a
42 U.S.C. § 1983 claim based upon failure to train or
supervise his assistants?
Is proof of “deliberate indifference” to constitutional
rights necessary to sustain a 42 U.S.C. § 1983 claim
against a municipal official in his or her individual
capacity for failure to train or supervise employees?
Is subjective proof of “deliberate indifference” to con-
stitutional rights always required to sustain a 42 U.S.C.
§ 1983 claim against a municipal official for failure to
train or supervise employees regarding a clearly estab-
lished constitutional right which the employees are sub-
stantially certain to encounter and which, absent
training and supervision, they are substantially certain
to abridge?
Pe
TABLE OF CONTENTS
Page
TABLE OF ALTRI COR 6 cde ve detine aes tavnaxeees ill
OPE e eee 66k bike ciation l |
JURISDICTIONAL STATENS ED ceccscccccccvscecces l
REL VIAAINE DEPRES Bees os 626404 09 eRe l
STATEMENE OF THe CARS 66s ictvcesercocccsseres I
REASONS FOR GRANTING THE WRIT............... 5 |
I. The lower courts’ holding that Connick is entitled
to qualified immunity makes a mockery of the
unqualified rights secured by this Court in Brady
v. Maryland, and is in direct contravention of
controlling precedents from this Court and deci- a
sions of the Second, Fifth, and Eighth Circuit a
Courts of AGOGO 0.556 cus dckes eee 5 ;
Il. The lower courts’ application of the “deliberate
indifference” standard to petitioner’s action ‘
against Connick in his individual capacity is in
direct conflict with the holdings of this Court and
numerous circuit court holdings............... 14
ill. The lower courts’ requirement that petitioner pro-
duce subjective evidence of Connick’s “deliber-
ate indifference” to his constitutional rights is
contrary to this Court’s holding in City of Canton
v. Harris and the Second Circuit’s holding in
Walker v. City of New York............000 000 24
COSINE LAREN oo vite en ck bes eae eee eee eee 29
TABLE OF AUTHORITIES
Page
Cases
Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034.
SS By) 5, 6
Barber v. City of Salem, Ohio, 953 F.2d 232 (6th Cir.
DSS Tiled a wknd a'6-0i 6 > 64 ode 0-06 40 0.0260 vo her 27
Boddie v. City of Columbus, 989 F.2d 745 (Sth Cir.
EG tal a aa kd dwees so 6s 600408 dee keveude 6, 13
Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10
ee passim
Brandon v. Holt, 469 U.S. 475, 105 S.Ct. 873, 83
ee Be 16
Bruning v. Pixler, 949 F.2d 352 (10th Cir. 1991), cert.
denied, sub nom., Roberson y. Bruning, ____ U.S.
__., 112 S.Ct. 1943, 118 L.Ed.2d 548 (1992)...... 6, 13
Cagle v. Gilley, 957 F.2d 1347 (6th Cir. 1992).......... 7
Calhoun vy. Gaines, 982 F.2d 1470 (10th Cir. > | re 6
California v. Trombetta, 467 U.S. 479, 104 S.Ct.
epee, OF 1.60.20 413 (1984)... . 2... ccc ccc ceee 10, 12
Campbell v. Bowlin, 724 F.2d 484 (Sth Cir. 1984)...... 18
Canfield v. School District No. 230, 991 F.2d 1316
EN ea ons 5 ss Lenk dees cob id <0 Ce¥év bane 26
City of Canton v. Harris, 489 U.S. 378, 109 S.Ct.
caer, ove bae.ae 432 (3969). ..............5%. passim
Clay v. Conlee, 815 F.2d 1164 (8th Cir. ot) ee ees 22
Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88
SS ae 20
Davis v. Mason County, 927 F.2d 1473 (9th Cir.
1991), cert. denied, __ U.S. __, 112 S.Ct. 275,
COED oes cere sccveccduscecews 26
TABLE OF AUTHORITIES — Continued
Page
Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct.
je Pe eR. errr rrr rere rrr ree 9
Fortner v. Thomas, 983 F.2d 1024 (11th Cir. 1993)...... 7
Geter v. Fortenberry, 849 F.2d 1550 (Sth Cir. 1988) .... 12
Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763,
if Ba, oy : Ree etn ee pew ee ne 9
Goldberg v. Town of Rocky Hill, 973 F.2d 70 (2d Cir.
Ps oe he eee er Oe re eae eene ris esee? 17
Gonzalez v. Ysletta Independent School District, 996
ae Fae Cee Ga Rs orc paramere ernie ubeks eke 12
Grandstaff v. City of Borger, 767 F.2d 161 (Sth Cir.
1985), cert. denied, 480 U.S. 916, 107 S.Ct. 1369,
Oe ee ee CTE eGo oe eho aeea were cee un’ 13
H.C. by Hewett v. Jarrard, 786 F.2d 1080 (11th Cir.
EN sk ss o'y oSlee eo ab ba eo ETE eae SEES eee 19
Hafer v. Melo, __ U.S. __, 112 S.Ct. 358, 116
Se ee SS os ea ores Gin cia we ee wea 17
Hahn v. McLey, 737 F.2d 771 (8th Cir. 1984).......... 22
Hanson v. Black, 885 F.2d 642 (9th Cir. 1989)......... 20
Hardin v. Hayes, 957 F.2d 845 (11th Cir. 1992)..... 17, 19
Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727,
pS Re 8 | eer eee ree SE Me
Hays v. Jefferson County, 668 F.2d 869 (6th Cir.
1992), cert. denied, 459 U.S. 883, 103 S.Ct. 75, 74
Mk Be 2 | A err ry ree ern 19
Hill v. Shelander, 924 F.2d 1370 (7th Cir. 1991) ....... 18
Hinshaw v. Doofer, 785 F.2d 1260 (Sth Cir. 1986) ..... 22
TABLE OF AUTHORITIES - Continued
Page
Hobson v. Wilson, 737 F.2d 1 (D.C. Cir. 1984), cert.
denied, 470 U.S. 1085, 105 S.Ct. 1943, 85 L.Ed.2d
i ie OEE EE TOR oP eo ray: - 7. ids oe
Hopkins v. Andaya, 958 F.2d 881 (9th Cir. i | See 26
Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565. 57
Sepa Se COMPOS 65 ob bbe bo vrebecieiesiew ue 16
Imbler v. Patchman, 424 U.S. 409, 96 S.Ct. 984, 47
MOM BIO CUDTOD ck ccc cicccvccceccccccscccsnccin, 7
Kentucky v. Graham, 473 U.S. 159, 105 S.Ct. 3099,
OF Eee 2ES GEN orc cence ee 17
Lake County Estates, Inc. v. Tahve Regional Planning
Agency, 440 U.S. 391, 99 S.Ct. 1171, 59 L.Ed.2d
Pe CA IP Es oie csc cgatesheberieseee eee 16
Larez v. City of Los Angeles, 946 F.2d 630 (9th Cir.
Dod OTERO TUT Ee wth iare me ie eey ow 18, 21
Leatherman vy. Tarrant County Narcotics Unit, ___ U.S.
—__, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993)..... 15, 29
Los Angeles v. Heller, 475 U.S. 796, 106 S.Ct. 1571,
OF ©..O. DO GOO CIS ovine oedccecvenksenee ew 15
Low v. City of Monrovia, 775 F.2d 998 (9th Cir. 1985).... 13
Lozano v. Smith, 718 F.2d 756 (Sth Cir. 3 i 21
Marchant v. City of Little Rock, 741 F.2d 201 (8th Cir.
PPD 5. vn Sibir ea cee ee ee 18
Marshall v. Allen, 984 F.2d 787 (7th Cir. 5) re 6, 13
Martinez v. City of Opa-Locka, 971 F.2d 708 (11th
OW. CRW os ein sceeeela eee ee 13
McClelland vy. Facteau, 610 F.2d 693 (10th Cir. 1079) ere 7
vi
TABLE OF AUTHORITIES — Continued
Page
McIntosh v. Weinberger, 810 F.2d 1411 (8th Cir.
1987), cert. denied, sub nom., McIntosh v. Car-
lucci, 487 U.S. 1217, 108 S.Ct. 2970, 101 L.Ed.2d
ee COND. nic kckie beak sa ees we See eee ete eee 12
Melear v. Spears, 862 F.2d 1177 (Sth Cir. 1989) ....... 13
Meriwether v. Coughlin, 879 F.2d 1037 (2d Cir. 1989)... . 20
Mitchell v. Forsyth, 472 U.S. S511, 105 S.Ct. 2806, 86
Sh Bip i. «| eer tee very ere er ee 7
Monell v. New York City Department of Social Ser-
vices, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611
Lg FBR aenerarurirrmrtrwaprntn Tee ity ote) 5 15, 16, 18, 19
Moore vy. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33
Be B® oy) boar y 8, 9, 11, 12
Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91
Be} a. | | PR A Aredia 10
O’Quinn v. Manuel, 773 F.2d 605 (Sth Cir. 1985)...... 21
Oklahoma City v. Tuttle, 471 U.S. 808, 105 S.Ct.
yee ae em © Be) | ee ererer er OP rrr 15
Owen v. City of Independence, 445 U.S. 655, 100
S.Ct. 1398, 63 L.Ed.2d 673 (1980)........... 16, 23, 24
Parker v. District of Columbia, 850 F.2d 708 (D.C.
Cir. 1988), cert. denied, 489 U.S. 1065, 109 S.Ct.
32, BGS E.G Ge Choe os enckeccenesssesess 26
Pearl v. Dobbs, 649 F.2d 608 (8th Cir. 1981).......... 22
Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989,
pee BP CR | err rr se eee 10
Rascon v. Hardiman, 803 F.2d 269 (7th Cir. 1986)..... 19
Ritchie v. Wickstrom, 938 F.2d 689 (6th Cir. 1991)..... 18
vil
TABLE OF AUTHORITIES ~ Continued
Rollins v. Farmer, 731 F.2d 533 (8th Cir. 1984)........ 18
Salas v. Carpenter, 980 F.2d 299 (Sth Cir. 1992)....18, 20
Sepulveda v. Ramirez, 967 F.2d 1413 (9th Cir. 1992),
cert. denied, sub nom., Appleby v. Sepulveda, ___
U.S. __, 114 S.Ct. 342, 126 L.Ed.2d 307 (1993).... 13
Sims v. Adams, 537 F.2d 829 (Sth Cir. 1976) .......... 22
Smith v. Rowe, 761 F.2d 360 (7th Cir. 1985)........... 19
Springfield v. Kibbe, 480 U.S. 257, 107 S.Ct. 114, 94
we Bs ee ate erie een: 15
St. Louis v. Praprotnik, 485 U.S. 112, 108 S.Ct. 915.
ee © 6B gl. | RS ee ae 15
State v. Gilmore, 323 So.2d 459 (La. 1975)............ 1]
State v. Groves, 311 So.2d 230 (La. 1975)............ 1]
State v. Johnson, 324 So.2d 349 (La. 1975)............ 1]
State v. Melton, 296 So.2d 280 (La. 1974)...... eee a |
State v. Odom, 292 So.2d 189 (La. 1974)....... |
State v. Pickett, 305 So.2d 509 (La. 1974)....... a ae
State v. Thomas, 306 So.2d 696 (La. 1975)............ 1]
State v. Woodruff, 281 So.2d 95 (La. 1973)............ 12
Tapia v. City of Greenwood, 965 F.2d 336 (7th Cir.
PD 55 RvV ERGs) Hee Cause aeriees vies Crunmekdiven 27
Trejo v. Perez, 693 F.2d 482 (Sth Cir. 1982)............ 6
United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49
we ee. | RR ihre. MR eet es PRS 9
vil!
TABLE OF AUTHORITIES — Continued
Page
United States v. Bagley, 473 U.S. 667, 105 S.Ct.
cite ae pee OR ae, | eer erers eee 10
United States v. Gonzalez, 491 F.2d 1202 (Sth Cir.
Sar esa a ree TERE EERO Sot eee e ed ee 10, 11
United States v. Kalfayan, 8 F.3d 1315 (9th Cir. 1993) .... 28
Walker v. City of New York, 974 F.2d 293 (2d Cir.
Pe ss hb oe eR de kas DL EER re erns 12, 24, 27, 28
White Plains Towing Co. v. Patterson, 991 F.2d 1049
(2d Cir. 1993), cert. denied, _ U.S. __, 114 S.Ct.
Lo ee Es | | renee ee 7
Williams v. Dutton, 400 F.2d 797 (Sth Cir. 1972)....... 10
Yharra v. Reno Thunderbird Mobile Home Village.
Tae ae eee Ce a Ss os caw e neces sane dusely ae
Yeldell vy. Cooper Green Hospital, Inc., 956 F.2d 1056
SRE. PEED SU a Cocca a cas Ae kone eee 13, 17
STATUTES
SIE Cs oct rg A 2 dead aa wren |
pee Foe we 8. : | RP ieee ae l
ne I a Ok Dae ge Re ee a passim
OTHER
Jnder Color of Law, ABA J., Dec. 1992............ 28
OPINIONS BELOW
The decision of the United States Court of Appeals for
the Fifth Circuit is found at 9 F.3d 103 (Sth Cir. 1993).
The decision of the United States District Court for the
Eastern District of Louisiana is not reported, and is found at
27a through 30a, infra.
JURISDICTIONAL STATEMENT
This case was filed in the United States District Court for
the Eastern District of Louisiana pursuant to 42 U.S.C.
§ 1983. Jurisdiction was based on 28 U.S.C. §§ 1331 and
1334. The decision of the United States Court of Appeals for
the Fifth Circuit was rendered on November 4, 1993. This
Court’s jurisdiction is invoked under 28 U.S.C. § 1254(1).
RELEVANT STATUTE
42 U.S.C. § 1983 provides as follows:
Every person who, under color of any statute, ordi-
nance, regulation, custom, or usage, of any State or
Territory or the District of Columbia, subjects, or
causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof
to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at
law, suit in equity, or other proper proceeding for
redress. For the purposes of this section, any Act of
Congress applicable exclusively to the District of
Columbia shall be considered to be a statute of the
District of Columbia.
STATEMENT OF THE CASE
On April 18, 1975, Errol Bernard (“Bernard”) was
attacked on a New Orleans city street by Vernon Joseph, who
had been released the previous day from the state penitentiary
at Angola, Louisiana. A fist fight ensued and Bernard shot
=
~
and killed Joseph. When police officers Mike Marziale and
Eddie Watson arrived to investigate the shooting, several
bystanders described Bernard as the man who shot Joseph.
Three witnesses were driven around the area in the police car
until they identified Bernard walking along a nearby street
and he was arrested. A weapon was taken from Bernard which
was later proved to be the gun involved in the shooting.
On May |, 1975, Bernard was indicted for second degree
murder. An Application for Bill of Particulars was filed on his
behalf, which asked if the District Attorney’s Office had
“knowledge of any statements, evidence, or any information
of any nature that might be considered exculpatory in nature.”
Assistant District Attorneys Bridget Bane and David Jennings
prepared an answer stating that “(t)he State has no such
knowledge other than defendant's statements.”
On October 10, 1975, a hearing was held on Bernard's
Motion to Suppress Confession. At the time of the hearing,
Bernard's file contained the police report, including Bernard's
statement to the police that he acted in self-defense;' an
eyewitness’ signed statement in the police report indicating
that a fight preceded the shooting; and statements of Vernon
Joseph's family members reflecting his paranoid behavior, his
rap sheet and the fact that he had been released from prison
the day before he died. Significantly, the file also contained a
ten page unofficial police report prepared by the investigating
officers suggesting that “this case should be taken under
advisement by the District Attorney’s Office and that the
arrested subject, Errol Bernard, should possibly be charged
with manslaughter as he did act in self-defense, to a certain
' After his arrest, Bernard admitted to the arresting officers that he
had shot Joseph but claimed that he had acted in self-defense. He told
police that as he walked along Third Street, he noticed two men approach-
ing him on the sidewalk. When they reached him, one man started a fight
with Bernard and knocked him to the ground. Bernard then pulled a
revolver from the rear of his waistband and shot Joseph in the chest. He had
never seen Joseph before and did not know why he had attacked him.
3
extent in the shooting of Vernon Joseph.” Despite the pres-
ence of this information in his file, the District Attorney’s
office did not supplemeni its response to Bernard’s request for
exculpatory evidence or forward any of this material to Ber-
nard.
Bernard was tried for second degree murder on January
5-6, 1976. The jury returned a verdict of guilty as charged,
and Bernard was sentenced to life .mprisonment.
In November 1988, Bernard filed an application for post
conviction relief on the grounds that the initial police report
(which he had just obtained) contained exculpatory evidence
to which he was entitled under Brady v. Maryland, 373 U.S.
83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). On October 27,
1989, Judge Patrick Quinlin of the Criminal District Court for
the Parish of Orleans set aside the conviction and vacated the
sentence on the basis of the Brady evidence that had been
withheld and ordered a new trial. Bernard entered an Alford
plea of guilty to an amended charge of manslaughter. He was
sentenced to twenty-one years, with credit for time already
served, and was released.
Bernard brought the instant action on November 9, 1989,
against Orleans Parish District Attorney Harry Connick
(“Connick”) and the various assistant district attorneys
involved in his prosecution for violation of his civil rights
under 42 U.S.C. § 1983. The defendants were sued in both
their individual and official capacities. The action was predi-
cated on allegations that the District Attorney neglected or
refused to supervise, discipline or control the assistant district
attorneys with callous disregard of the public’s rights, which
allegation encompasses the charge that the District Attorney
failed to properly train his assistants.
On March 5, 1991, the defendants filed a Motion to
Dismiss or Alternatively for Summary Judgment. A hearing
was held on April 3, 1991, after which United States District
Judge Peter Beer dismissed the claim against the defendants
in their individual capacities based on absolute prosecutorial
immunity. On April 8, 1991, Judge Beer issued a minute entry
eee een nee i |
4
granting the defendants’ motion for summary judgment and
dismissing the claims against them in their official capacities.
See 2a, infra. Judge Beer reasoned that there was no genuine
issue as to the existence of a policy of withholding exculpa-
tory material. See 10a, infra. Although the court found that
Bernard had demonstrated th: existence of a genuine issue
regarding the adequacy of the traing program, it concluded
that he failed to establish that this was the result of “deliber-
ate indifference” by the District Attorney’s Office, which it
found was required by City of Canton v. Harris, 489 U.S. 378,
109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). See 12a-13a, infra.
Finally, the Court found that the fact that thirteen Orleans
Parish convictions had been overturned in fifteen years on the
basis of Brady violations did not establish the existence of a
municipal policy. See 14a, infra. Therefore, Judge Beer found
that Bernard had not prevailed on any of the three theories by
which a municipal policy may be proved as the basis of a
§ 1983 action.
Bernard appealed to the United States Court of Appeals
for the Fifth Circuit. On January 31, 1992, the Fifth Circuit
affirmed the decision of the district court dismissing the
claims against the former Assistant District Attorneys indi-
vidually and in their official capacities. However, the court
reversed and remanded the district court ruling with respect to
Connick’s liability in his individual capacity. The Fifth Cir-
cuit determined that the district court had failed to consider
whether the functions of a District Attorney as an administra-
tor or investigative officer were protected by prosecutorial
immunity. See 25a, infra. Because the alleged failure to train
appeared not to fall within the District Attorney’s role as a
prosecutor, but instead within his capacity as administrator of
his office, the Fifth Circuit concluded that the district court
was incorrect in dismissing Connick in his individual capacity
on the basis of absolute prosecutorial immunity. See 26a,
infra.
After remand, Connick filed a Motion to Dismiss or
Alternatively for Summary Judgment which was heard on
5
September 16, 1992. Judge Beer issued a minute entry grant-
ing the motion on October 6, 1992. The district court held that
because the training of assistants fell outside of the prosecu-
tor’s quasi-judicial role, absolute immunity did not apply, but
that such discretionary functions were shielded by qualified
immunity. See 28a-29a, infra. The court concluded that when
the incident occurred in 1975 and 1976 (some 12 years after
this Court’s holding in Brady was handed down) that “the
Brady doctrine was not yet fully developed, and a reasonable
prosecutor might well have been unaware of the boundaries of
the defendant’s right.” See 29a, infra. Therefore, the court
found that Connick was protected by qualified immunity.
Additionally, the court reiterated its previous holding that
Bernard was unable to demonstrate “deliberate indifference”
by Connick to his constitutional rights, and was therefore
:nable to recover as a matter of law. /d.
The Fifth Circuit affirmed the District Court’s ruling
without written reasons on November 4, 1993. See la, infra.
REASONS FOR GRANTING THE WRIT
I. The lower courts’ holding that Connick is entitled to
qualified immunity makes a mockery of the unqual-
ified rights secured by this Court in Brady v. Maryland,
and is in direct contravention of controlling precedents
from this Court and decisions of the Second, Fifth, and
Eighth Circuit Courts of Appeals.
Public officials are shielded from liability for damages
under § 1983 so long as their conduct has not violated
“clearly established statutory or constitutional rights of which
a reasonable person would have known.” Anderson v.
Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 3038, 97
L.Ed.2d 523 (1987); Harlow v. Fitzgerald, 457 U.S. 800, 818,
102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). “If the law was
clearly established, the immunity defense should fail, since a
reasonably competent public official should know the law
governing his conduct.” Harlow v. Fitzgerald, supra, 457 U:S.
6
at 818, 102 S.Ct. at 2738. The tnquiry turns “primarily on
objective factors.” /d.¢
A “particularized” principle of law need not have been
expressed in order for a right to be well established.
The contours of the right must be sufficiently clear
that a reasonable official would understand that
what he is doing violates that right. This ts not to
say that an official action is protected by qualified
immunity unless the very action in question has
previously been held unlawful, . . . but it ts to say
that in the light of pre-existing law the unlawfulness
must be apparent.
Anderson v. Creighton, supra, 483 U.S. at 640, 107 S.Ct. at
3039. The question is not whether the law was settled, viewed
abstractly, but whether, measured by an objective standard, a
reasonable official would know that his action was illegal.
Boddie vy. City of Columbus, 989 F.2d 745, 748 (Sth Cir.
1993).
Thus, it is not necessary to show that “the very action in
question has previously been held unlawful.” /d. “[T]here
need not be a ‘prior case precisely on all fours on the facts
and law involved.’ ” Marshall v. Allen, 984 F.2d 787, 794 (7th
Cir. 1993), quoting Landstrom y. Illinois Department of Chil-
dren & Family Services, 892 F.2d 670, 676 (7th Cir. 1990).
Officials are required to “know well developed legal princi-
ples and to relate and apply them to analogous factual situa-
tions.” Calhoun v. Gaines, 982 F.2d 1470, 1475 (10th Cir.
1992).
2 See also Hobson yv. Wilson, 737 F.2d 1, 25 (D.C. Cir. 1984), cert.
denied, 470 U.S. 1085, 105 S.Ct. 1943, 85 L.Ed.2d 142 (1985) (“Harlow
redefined the qualified immunity defense to eliminate the subjective ele-
ment.”); Trejo v. Perez, 693 F.2d 482, 485 (Sth Cir. 1982) (Harlow
“delet{ed] the subjective component” in qualified immunity analysis).
Thus, the defendant's intent is not relevant. Bruning v. Pixler, 949 F.2d 352,
356 (10th Cir. 1991), cert. denied, sub nom., Roberson v. Bruning, ___ U.S.
___, 112 S.Ct. 1943, 118 L.Ed.2d 548 (1992).
7
Where there is direct precedent from this Court, there can
be little doubt as to whether a right is “clearly established.”
“Supreme Court precedent ‘establishes’ the law: to the extent
that the Court's opinions give guidance we obviously do not
doubt that the law is well-established.” Hobson y. Wilson,
supra, 7137 F.2d at 26. See also White Plains Towing Co. v.
Patterson, 991 F.2d 1049, 1064 (2d Cir. 1993). cert. denied,
— US. __, 114 S.Ct. 185, 126 L.Ed.2d 144 (1993) (“To
determine whether a particular right was clearly established at
the time defendants acted, a court should consider . _ . (2)
whether the decisional law of the Supreme Court and the
applicable circuit court support the existence of the right in
question. . . . "); Fortner v. Thomas, 983 F.2d 1024, 1028
(I 1th Cir. 1993) (“[T]}he existence of Supreme Court cases or
cases in this circuit that recognize the alleged right is partic-
ularly important in determining whether the law is suffi-
ciently clear to a reasonable official.”): Cagle v. Gilley, 957
F.2d 1347, 1348 (6th Cir. 1992) (binding precedent from the
Supreme Court supports the existence of a clearly established
constitutional right). See, e.g., Mitchell v. Forsyth, 472 U.S.
SI1, 536, 105 S.Ct. 2806, 2820, 86 L.Ed.2d 41] (1985)
(Supreme Court decision “laid to rest” the illegality of war-
rantless wiretapping in cases involving domestic threats to
national security).
The lower courts avoided application of these well-estab-
lished principles, and granted Connick qualified immunity? by
finding that Bernard's right to exculpatory evidence was not
“clearly established” at the time of his conviction:
However, in 1975 and 1976, when this incident
occurred, the Brady doctrine was not yet fully
developed, and a reasonable prosecutor might well
* Absolute immunity under /mbler v. Patchman, 424 U.S. 409. 96
S.Ct. 984, 47 L.Ed.2d 128 (1976), is not due because it was conceded that
“the training of assistants constitutes an administrative rather than a pros-
ecutorial function,” and therefore “fall[{s] outside of the prosecutor's quasi-
judicial role.” 28a, infra.
8
have been unaware of the boundaries of the defen-
dant’s right. Given the uncertainty surrounding
Brady at the time of the alleged violation, the court
finds that defendant ts protected by qualified immu-
nity in this case.
29a, infra.4
This holding makes a mockery of this Court's clear and
unequivocal pronouncement in Brady in 1963 and its
pre-1975 progeny:
We now hold that the suppression by the prosecu-
tion of evidence favorable to an accused upon
request violates due process where the evidence ts
material either to guilt or to punishment, irrespec-
tive of the good faith or bad faith of the prosecu-
tion,
373 U.S. at 86, 83 S.Ct. at 1195-96. In 1972, this Court did
not express any equivocation about its earlier holding. “The
heart of the holding in Brady is the prosecution’s suppression
of evidence, in the face of a defense production request,
where the evidence is favorable to the accused and is material
either to guilt or to punishment.” Moore vy. Illinois, 408 U.S.
786, 794, 92 S.Ct. 2562, 2568, 33 L.Ed.2d 706 (1972). That
same year, this Court again affirmed Brady, this time explain-
ing that its rule was of long-standing origin:
As long ago as Mooney v. Holohan, 294 U.S. 103,
112, 55 S.Ct. 340, 342, 79 L.Ed. 791 (1935), this
Court made clear that deception of a court and
jurors by the presentation of known false evidence
+ This holding is flatly contradicted by Connick’s and his assistant's
testimony that they were all well aware of Brady, and that they had a policy
of attempting compliance, which they understood to require that they “turn
over all exculpatory evidence.” See 10a, infra, 24a, infra. However, the
district court also found that the prosecutors’ failure to recognize their
obligation to turn over evidence in Bernard’s case, and one prosecutor's
statement that he did not “know what the heck [Brady] was back then and
I’m not sure what it is now today,” created a factual dispute as to the
adequacy of their training. See 12a, infra.
9
is Incompatible with “rudimentary demands of jus-
tice.” This was reaffirmed in Pyle v. Kansas, 317
U.S. 213, 63 S.Ct. 177, 87 L.Ed.2d 214 (1942). In
Napue vy. Illinois, 360 U.S. 264, 79 S.Ct. 1173. 3
L.Ed.2d 1217 (1959), we said “(t)he same result
obtains when the State, although not soliciting false
evidence, allows it to go uncorrected when it
appears.” /d., at 269, 79 S.Ct., at 1177. Thereafter,
Brady v. Maryland, 373 U.S., at 87, 83 S.Ct.. at
1197, held that suppression of material evidence
justifies a new trial “irrespective of the good faith
or bad faith of the prosecution.”
Giglio v. United States, 405 U.S. 150, 153, 92 S.Ct. 763, 765.
31 L.Ed.2d 104 (1972). In 1974, conduct violative of Brady
was described as “egregious conduct held... . to amount to a
denial of constitutional due process,” as opposed to “ordinary
trial error.” Donnelly v. DeChristoforo, 416 U.S. 637, 647. 94
S.Ct. 1868, 1873, 40 L.Ed.2d 431 (1974).
Given these pronouncements, what “uncertainties” about
Brady's “boundaries” existed in 1975, as was found to be the
case by the lower courts? 29a, infra. And, what “further
developments” were necessary to inform the Louisiana court's
eventual determination that the exculpatory evidence withheld
from Bernard was subject to the Brady rule? If Bernard’s case
presented some unusual factual situation, one on Brady’s
periphery, then the lower courts’ holding might make some
sense. However, the district attorneys’ conduct here flew
Straight into the teeth of the Brady rule as it was originally
expounded and repeatedly declared. Moore v. Illinois. supra,
decided in 1972, explicitly defined the three different situa-
tions in which the withholding of exculpatory evidence could
arise: when there is a knowing use of perjured testimony and
a failure to disclose impeachment evidence; when there has
been a specific request for defined exculpatory evidence that
is refused; or when no specific request has been made but
“obviously exculpatory” evidence is concealed. 427 US. at
103, 106, 112, 96 S.Ct. at 2397, 2399, 2402. Subsequent
developments, such as United States v. Agurs, 427 U.S. 97, 96
10
S.Ct. 2392, 49 L.Ed.2d 342 (1976), and United States v.
Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985),
which fleshed out the contours of Brady’s materiality require-
ment, or California v. Trombetta, 467 U.S. 479, 104 S.Ct.
2528, 81 L.Ed.2d 413 (1984), which tackled the question of
whether Brady required that the prosecution preserve excul-
patory evidence, are not relevant here. Instead, the “well-
settled” basic premise of Brady, that “the government has an
obligation to turn over evidence in its possession that is both
favorable to the accused and material to guilt or punishment,”
Pennsylvania v. Ritchie, 480 U.S. 39, 58, 107 S.Ct. 989, 1001,
102 L.Ed.2d 281 (1988), was more than sufficient to put any
reasonable district attorney on notice of the specific constitu-
tional right involved, and his or her subordinates’ violation of
that right in Bernard’s case, rights that were “unquestionably
protected by the Due Process Clause.” Murray v. Carrier, 477
U.S. 478, 499, 106 S.Ct. 2639, 2651, 91 L.Ed.2d 397 (1986)
(Stevens, J., concurring). In the face of a specific request for
any and all exculpatory evidence of any nature, Connick
withheld evidence supporting a theory of defense. See 3a,
infra.>
If guidance from this Court was insufficient to demon-
strate to Connick the abject unconstitutionality of his office's
actions, he also had the benefit of the Fifth Circuit’s explana-
tions of Brady. “The Supreme Court in Brady plainly pro-
scribed governmental suppression of evidence that exculpated
the defendant.” United States v. Gonzalez, 491 F.2d 1202,
1208 (Sth Cir. 1974). See also Williams v. Dutton, 400 F.2d
797, 800 (Sth Cir. 1972) (Brady “imposed an affirmative duty
on the prosecution to provide at the appropriate time
5 This evidence included a police report stating that Bernard himself
claimed self-defense, an eyewitness statement that a scuffle preceded the
incident, statements from the victim’s family attesting to his erratic behav-
ior, the victim’s prior criminal history and recent release from prison, and
an unofficial police report stating that Bernard had acted in self-defense “to
a certain extent.” See 3a, infra.
requested evidence which is materially favorable to the
accused as direct or impeaching evidence.”). Additionally, the
Fifth Circuit had noted in 1974 that Brady was expounded
upon by Moore v. Illinois, supra, which “clearly articulated
three criteria for measuring when the Brady rule has been
violated as follows: (a) suppression by the prosecution after a
request by the defendant, (b) the evidence’s favorable charac-
ter for the defense, and (c) the materiality of the evidence.”
United States v. Gonzalez, supra, 491 F.2d at 1208.
Moreover, Connick could not have been reasonably
unaware of the Louisiana Supreme Court's jurisprudence on
the subject. Prior to 1976, Brady was considered by the
Louisiana Supreme Court 38 times, and the court never had
any difficulty interpreting its clear and unequivocal mandate.
As was stated in State v. Melton, 296 So.2d 280, 282 (La.
1974), “[ijt is clearly the law that the prosecution may not
suppress evidence favorable to the accused without violating
his constitutional right to due process.” See also State v.
Gilmore, 323 So.2d 459, 464 (La. 1975) (“Brady mandates
that evidence favorable to the accused may not be suppressed
by the prosecution after the accused has requested same.”);
State v. Johnson, 324 So.2d 349, 351 (La. 1975) (“Brady vy.
Maryland, supra, requires the prosecution to disclose evi-
dence that is favorable to the accused.”); State v. Groves, 311
So.2d 230, 235 (La. 1975) (Brady held that “the requirements
of due process prohibit the prosecution from withholding
favorable evidence from an accused that would tend to excul-
pate him or reduce punishment.”); State v. Thomas, 306 So.2d
696, 697 (La. 1975) (Brady “held that the suppression by the
prosecution of evidence favorable to an accused upon request
violates due process where the evidence is material either to
guilt or to punishment, irrespective of the good or bad faith of
the prosecution.”); State v. Pickett, 305 So.2d 509. 512 (La.
1974), citing Brady v. Maryland, supra (Failure to disclose
exculpatory evidence “would subject the prosecution to a
charge that it suppressed evidence favorable to an accused.”));
State v. Odom, 292 So.2d 189, 190 (La. 1974) (Brady held
12
“that an accused is denied due process if, after request, he is
denied access to evidence favorable to him and material to
guilt.”). Indeed, in State v. Woodruff, 281 So.2d 95, 97 (La.
1973), the Louisiana high court held that it was “clear” that
Moore v. Illinois, supra, and Brady v. Maryland, supra,
required the prosecution to divulge evidence probative of the
possibility of a claim of self-defense.
Not only is the lower courts’ grant of qualified immunity
to Connick impossible to reconcile with this Court’s holdings
regarding the limitations on the scope of such immunity and
the plain meaning of Brady, as applied to the facts of this case,
it is also contrary to the holdings of other circuit courts that
have considered claims of qualified immunity in cases where
Brady violations are alleged in § 1983 actions. Indeed, the
Fifth Circuit itself found in an earlier case that Brady
announced a “clearly established” right beyond the scope of
immunity. See Geter v. Fortenberry, 849 F.2d 1550, 1559 (Sth
Cir. 1988) (“We agree with Geter that a police officer cannot
avail himself of a qualified immunity defense if he procures
false identification by unlawful means or deliberately conceals
exculpatory evidence, for such activity violates clearly estab-
lished constitutional principles.”) The same result was reached
in McIntosh v. Weinberger, 810 F.2d 1411, 1434 (8th Cir.
1987), cert. denied, sub nom., McIntosh v. Carlucci, 487 U.S.
1217, 108 S.Ct. 2970, 101 L.Ed.2d 905 (1988) where the court
denied qualified immunity because it thought “it clear that the
destruction of evidence supporting the plaintiff's EEO claims
and not obtainable elsewhere was fundamentally inconsistent
with due process, cf. Brady v. Maryland, 373 U.S. 83, 83 S.Ct.
2528, 81 L.Ed.2d 413 (1963); California v. Trombetta, 467
U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984), and that this
too would have been clear to a reasonable person.” Likewise,
inherent in the court’s holding in Walker v. City of New York,
974 F.2d 293 (2d Cir. 1992), that the plaintiff had proved
“deliberate indifference” to his Brady rights by his prosecutor
was a holding that “clearly established” rights were at issue.
See Gonzalez v. Ysletta Independent School District, 996 F.2d
eT
13
745, 759, 760 (Sth Cir. 1993) (citations omitted) (“[P]olicy
makers cannot be said to be deliberately indifferent to constitu-
tional rights that were not clearly established at the time they
acted. ...”.
The lower courts’ grant of qualified immunity in this
case does serious violence to the policy that underscores the
limitation of immunity announced in Harlow v. Fitzgerald,
supra:
© In addition, the lower courts’ holding is contrary to numerous cases
that have denied qualified immunity in cases involving rights far more
uncertain than the due process right at issue in Brady. See, e.g., Boddie v
City of Columbus, 989 F.2d 745, 749 (Sth Cir. 1993) (First Amendment
right of employee to associate with union was clearly established); Mar-
shall v. Allen, 984 F.2d 787, 795 (7th Cir. 1993), and Martinez v. City of
Opa-Locka, 97) F.2d 708, 713 (11th Cir. 1992) (public employee's right to
speak out on issues of public concern without fear of firing was clearly
established), Sepulveda v. Ramirez, 967 F.2d 1413, 1416 (9th Cir. 1992),
cert. denied sub nom., Appleby v. Sepulveda, __ US. __ 114 S Ct. 342.
126 L.Ed.2d 307 (1993) (right to bodily privacy was clearly established,
and corrections officer's ordering of parolee of opposite sex to collect urine
sample in full view was a clear and established violation of that right);
Yeldell v. Cooper Green Hospital, Inc., 956 F.2d 1056, 1064 (11th Cir
1992) (prohibition against racially discriminatory hiring practices was
clearly established), Bruning v. Pixler, supra, 949 F.2d at 347 (the knowing
or reckless making Gf a false statement in an affidavit in support of a
warrant is a Clear violation of well established rules); Melear v. Spears, 862
F.2d 1177, 1185 (Sth Cir. 1989) (fact that broad free-floating suspicion that
Suspect was inside building was insufficient to establish probable cause
justifying warrantless search was clearly established); Low v. City of
Monrovia, 775 F.2d 998, 1011 (9th Cir. 1985) (prohibition against sexually
discriminatory hiring practices was clearly established); Grandstaff v. City
of Borger, 767 F.2d 161, 168 (Sth Cir. 1985), cert. denied, 480 U.S. 916,
107 S.Ct. 1369, 94 L.Ed.2d 686 (1987) (reckless use of deadly force in
violation of clearly estabiished law); Hobson v. Wilson, supra, 737 F.2d at
29 (right to be free of government action, taken with intent to disrupt or
destroy lawful organizations, or to deter membership therein, was clearly
established).
14
The public interest in deterrence of unlawful con-
duct and in compensation of victims remains pro-
tected by a test that focuses on the objective legal
reasonableness of an official's acts. When an offi-
cial could be expected to know that certain conduct
would violate statutory or constitutional rights, he
should be made to hesitate; and a person who suf-
fers injury caused by such conduct may have a
cause of action.
457 U.S. at 819, 102 S.Ct. at 2739. The lower courts’ almost
cavalier refusal to follow precedent sends quite the opposite
message. It proclaims that prosecutors may withhold exculpa-
tory evidence with impunity, and that innocent victims must
simply grin and bear it.
Il. The lower courts’ application of the “deliberate indif-
ference” standard to petitioner’s action against Con-
nick in his individual capacity is in direct conflict
with the holdings of this Court and numerous circuit
court holdings.
The lower courts held that Bernard’s claim against Con-
nick in his individual capacity could not survive summary
judgment because Bernard failed to raise a question of fact as
to whether Connick was “deliberately indifferent” to Ber-
nard’s constitutional rights sufficient to withstand summary
judgment. Relying on City of Canton vy. Harris, 489 U.S. 378,
109 S.Ct. 1197, 103 L.Ed.2d 412 (1989), the lower courts
held that Bernard had failed “as a matter of law” to controvert
Connick’s subjective declaration that he was not “deliberately
indifferent” to Bernard’s rights, and that Bernard’s claim was
therefore due to be dismissed.
This holding fails to recognize the well-established dis-
tinction between claims against municipal officials in their
individual capacities and municipal officials in their official
capacities, the latter of which is nothing more than a direct
claim against the employing municipality. This distinction has
been recognized by this Court, and numerous circuit courts
15
applying this Court’s precedents, including the Fifth Circuit
itself.
This Court in Monell v. New York City Department of
Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611
(1978), held that a municipality could constitute a “person”
under § 1983, and could therefore be liable for violation of
constitutional rights, provided that the municipality itself
caused the constitutional abridgment at issue. Respondeat
superior or vicarious liability could not be asserted as a basis
for liability. /d., at 694, 695, 98 S.Ct. at 2037-38. “It is only
when ‘the execution of the government's policy or custom-
. inflicts the injury’ that the municipality may be held
liable under § 1983.” Springfield v. Kibbe, 480 U.S. 257, 267,
107 S.Ct. 114, 119, 94 L.Ed.2d 293 (1987) (O'Connor, J.,
dissenting) (quoting Monell, supra, 436 U.S. at 694, 98 S.Ct.
at 2037-38). See also Leatherman v. Tarrant County Narcotics
Unit, __ U.S. __, 113 S.Ct. 1160, 1162, 122 L.Ed.2d 517
(1993). After a difficult struggle with application of the
Monell standard in cases that left the Court “deeply divided”
on the question, in City of Canton y. Harris, supra, 489 U.S.
at 385, 109 S.Ct. at 1203,” this Court definitively resolved the
appropriate standard for liability to be applied in cases of
municipal liability premised upon a failure to train subordi-
nates that results in a violation of constitutional rights. In City
of Canton v. Harris, supra, this Court held that the degree of
fault which must be proved for municipal liability to attach
under § 1983 in failure to train cases is one of “deliberate
indifference.” “[T]he inadequacy of police training may serve
as the basis for § 1983 liability only where the failure to train
amounts to deliberate indifference to the rights of persons
with whom the police come into contact.” 489 U.S. at 388,
109 S.Ct. at 1204.
” See, e.g., St. Louis v. Praprotnik, 485 U.S. 112, 108 S.C. 915, 99
L.Ed.2d 107 (1988); Springfield v. Kibbe, supra; Los Angeles v. Heller, 475
U.S. 796, 106 S.Ct. 1571, 89 L.Ed.2d 806 (1986); Oklahoma City v. Tuttle,
471 U.S. 808, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985).
16
Integral to this Court’s holding in City of Canton was the
fact that the cause of action asserted was one for municipal
liability. This Court expressly found that the “deliberate indif-
ference” standard of fault was required in order to avoid
municipalities being held responsible by “de facto respondeat
superior,” a result that was rejected in Monell. 489 U.S. at
392; 109 S.Ct. at 1206. Concerns about the federal courts’
“second-guessing” municipal employee training programs,
which raises federalism concerns, also prompted this Court’s
adoption of the “deliberate indifference” standard. /d.
When a § 1983 claim is filed against a municipal officer
in his individual capacity, the concerns that prompted City of
Canton’s holding are not applicable, since recovery is not
sought against the municipality. Thus, this Court has
expressly castigated a circuit court for failing to “distinguish
between suits against governments’ officials ‘in their individ-
ual capacities’ on the one hand, and those in which ‘only
liability of the municipality itself was at issue,’ on the other.”
Brandon v. Holt, 469 U.S. 475, 472-73, 105 S.Ct. 873, 878, 83
L.Ed.2d 878 (1985). See also Owen v. City of Independence,
445 U.S. 655, 653 n.37, 100 S.Ct. 1398, 1416, 63 L-Ed.2d 673
(1980), citing Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565,
57 L.Ed.2d 522 (1978), and Lake County Estates, Inc. v.
Tahoe Regional Planning Agency, 440 U.S. 391, 99 S.Ct.
1171, 59 L.Ed.2d 401 (1979) (“On at least two previous
occasions, this Court has expressly recognized that different
considerations come into play when governmental rather than
personal liability is threatened”). This Court has further stated
on at least two occasions that the standard for liability in
individual capacity suits is entirely different than that
imposed on actions against municipalities or against officials
in their official capacities:
On the merits, to establish personal liability in a
§ 1983 action, it is enough to show that the official,
acting under color of state law, caused the depriva-
tion of a federal right. See, e.g., Monroe v. Pape,
365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961).
More is required in an official-capacity action,
17
however, for a government entity is liable under
§ 1983 only when the entity itself is a “moving
force” behind the deprivation, Polk County y. Dod-
son, 454 U.S. 312, 326, 102 S.Ct. 445, 454, 70
L.Ed.2d 509 (1981) (quoting Monell, supra, 436
U.S. at 694, 98 S.Ct. at 2037); thus, in an official-
Capacity suit the entity’s “policy or custom” must
have played a part in the violation of federal law.
Monell, supra; Oklahoma City y. Tuttle, 471 U.S.
808, 817-818, 195 S.Ct. 2427, 2433, 85 L.Ed.2d 781
(1985); id., at 827, 828, 105 S.Ct. at 2437, 2438
(Brennan, J., concurring in judgment).
Kentucky v. Graham, 473 U.S. 159, 166, 105 S.Ct. 3099,
3105, 87 L.Ed.2d 114 (1985). See also Hafer v. Melo, 7
U.S. __, 112 S.Ct. 358, 361, 116 L.Ed.2d 301 (1991).
In accord with these admonitions, various circuit courts
have recognized the well-established distinction between
§ 1983 actions filed against municipal employees in their
individual as opposed to official capacities. See Goldberg vy.
Town of Rocky Hill, 973 F.2d 70, 73 (2d Cir. 1992): Yeldell v.
Cooper Green Hospital, Inc., supra, 956 F.2d at 1060; Hardin
v. Straub, 954 F.2d 1193, 1198-99 (6th Cir. 1992). Among the
consequences of this distinction is the standard of liability at
issue. In a § 1983 action against Chief of Police Daryl Gates
in his individual capacity, the Ninth Circuit correctly
observed that while official liability must be “attributable to
official policy or custom,” such is not the case with individual
capacity liability:
The distinction between Gates’ individual and offi-
cial capacity liabilities, the proof of which often-
times overlaps, is made more subtle by the
supervisory role that he occupies. A supervisor will
rarely be directly and personally involved in the
same way as are the individual officers who are on
the scene inflicting constitutional injury. Yet, this
does not prevent a supervisor from being held liable
in his individual capacity. Like the officers, Gates’
individual liability hinges upon his participation in
1%
the deprivation of constitutional rights. But unlike
the officers’ involvement, which ordinarily is direct
and personal, his participation may involve the set-
ting in motion of acts which cause others to inflict
constitutional injury. Joinson v. Duffy, 588 F.2d
140, 743-44 (9th Cir. 1978).
Larez v. City of Los Angeles, 946 F.2d 630, 645 (9th Cir.
1991). See also Ritchie v. Wickstrom, 938 F.2d 689, 691 (6th
Cir. 1991); Hill v Shelander, 924 F.2d 1370, 1372 (7th Cir.
1991). The reason for this differentiation ts clear. “|When a
suit is brought against an official in his or her individual
capacity if is not necessary to prove a city-wide policy.”
Marchant v. City of Little Rock, 744 k.2d 201, 204 (8th Cir.
1984), citing Rollins v. Farmer, 731 F.2d 533, 535 (8th Cir.
1984). Since “city policy” is not the linchpin of liability,
Monell’s and its progeny’s, including Canton’s, standard for
liability 1s not applicable.
That the Monell “custom or policy” requirement, or the
Canton “deliberate indifference” standard, 1s simply inapplt-
cable to actions against officials in their individual capacities
has not escaped the Fifth Circuit’s attention on previous
occasions. In Campbell v. Bowlin, 724 F.2d 484, 489 (Sth Cir.
1984), that court noted that suits against officials in their
official capacities require proof of constitutional violations
resulting from official policy or custom; suits against officials
in their individual capacities only require proof that the offi-
cial, while discharging his or her official duty, acted to violate
constitutional rights and that he or she knew or should have
known, measured by an objective reasonableness standard,
that his or her actions would have that effect. Moreover, in
the case sub judice the Fifth Circuit implicitly recognized the
distinction when, on the first appeal, it affirmed dismissal of
Bernard’s claims against Connick in his official capacity
because of Bernard’s failure to meet the “deliberate indif-
ference” standard, but remanded the claim against Connick in
his individual capacity. See 26a, infra. If “deliberate indif-
ference” was required in either case, there would have been
no cause to remand the latter. See also Salas v. Carpenter, 980
19
F.2d 299, 310 (Sth Cir. 1992), refusing to apply City of
Canton, supra, to a claim that did not involve municipal
liability.
Thus, it is not surprising that “deliberate indifference”
has not been the litmus test of liability in claims made against
municipal officials in their individual Capacities, even for
causes of action grounded upon supervisor liability. That
individual liability cannot be imposed on the basis of respon
deat superior, Monell, supra, 436 US. at 690-91, 98 S.Ct. at
2036, and that “personal responsibility” must be established
is Clear; the appropriate standard for liability, however, is not
The circuits appear to be unanimous in holding that personal
responsibility can exist even in the absence of direct partici-
pation. But, varying tests have evolved as to when personal
responsibility exists. The Seventh Circuit holds that “fa]n
official satisfies the personal responsibility requirement of
§ 1983 if she acts or fails to act with a deliberate or reckless
disregard of plaintiff’s constitutional rights, or if the conduct
causing the constitutional deprivation occurs at her direction
or with her knowledge and consent.” Smith v. Rowe, 761 F.2d
360 (7th Cir. 1985). See also Rascon v. Hardiman, 803 F.2d
269, 274 (7th Cir. 1986). The Sixth Circuit’s formulation is
that the official must have either “encouraged the specific
incident or misconduct or in some other way directly partici-
pated in it. At a minimum a plaintiff must show that the
official at least implicitly authorized, approved, or knowingly
acquiesced in the unconstitutional conduct of the offending
officers.” Hays v. Jefferson County, 668 F.2d 869, 874 (6th
Cir. 1992), cert. denied, 459 U.S. 883, 103 S.Ct. 75, 74
L.Ed.2d 73 (1982). In the Eleventh Circuit, “{a] supervisor
may be liable under Section 1983 if he or she Participates
directly in acts constituting a constitutional violation, or if the
challenged actions are causally connected to the constitu-
tional violation.” Hardin v. Hayes, 957 F.2d 845. 849 (11th
Cir. 1992); H.C. by Hewett v. Jarrard, 786 F.2d 1080. 1086-87
(1 ith Cir. 1986). The Second Circuit appears to require “gross
20
negligence.” Meriwether v. Coughlin, 879 F.2d 1037, 1048
(2d Cir. 1989).*
The Ninth Circuit appears to have the most developed
body of precedents in this area. A supervisor may be found
liable for constitutional deprivations by a subordinate if the
supervisor is personally involved in the deprivation or if there
exists “a sufficient causal connection between the super-
visor’s wrongful conduct and the constitutional violation.”
Hanson v. Black, 885 F.2d 642, 646 (9th Cir. 1989). Such a
causal connection exists where the supervisory official
“implement[s] a policy so deficient that the policy ‘itself is a
repudiation of constitutional rights’ and is the ‘moving force
of the constitutional violation.” ” /d. Additionally,
[sJupervisory liability 1s imposed against a super-
visory official in his individual capacity for his
“own culpable action or inaction in the training,
supervision, or control of his subordinates,” Clay
v. Conlee, 815 F.2d 1164, 1170 (8th Cir. 1987): for
his “acquiesce(nce) in the constitutional depriva-
tions of which (the) complaint is made,” Meade v
* Bernard argued to the Court of Appeals that “gross negligence” was
the applicable standard, relying upon Second Circuit precedent. However,
the proper standard of care to be. applied is not before this Court at this
time. This Court need only recognize that the “deliberate indifference”
standard is not controlling. See, e.g., Daniels v. Williams, 474 U.S. 327, 334
n.3, 106 S.Ct. 662, 666 n.3, 88 L.Ed.2d 662 (1986), where this Court, in
holding that more than mere negligence was required to support a § 1983
claim for breach of the liberty interest secured by the Due Process Clause
of the Fourteenth Amendment, noted that the question of “whether some-
thing less than intentional conduct, such as reckless or ‘gross negligence,’
is enough to trigger the protections of the Due Process Clause” was not
before it. See Salas v. Carpenter, 980 F.2d 299, 307 (Sth Cir. 1992), for the
Fifth Circuit rule (“{U]nintentional conduct more culpable than negligence
may deny due process,” where that conduct amounts to an abuse of
governmental authority. ).
21
Grubbs, 841 F.2d 1512, 1528 (10th Cir. 1988) (cita-
tion omitted); or for conduct that showed a “reck-
less or callous indifference to the rights of others.”
Bordanaro, 871 F.2d at 1163.
Larez v. City of Los Angeles, supra, 946 F.2d at 646 (emphasis
added). See also Ybarra v. Reno Thunderbird Mobile Home
Village, 723 F.2d 675, 681 (9th Cir. 1984), holding that
supervisory liability may be imposed for failure to train.?
The Ninth Circuit’s holding that a failure to adequately
train subordinates can constitute the basis of a claim for
individual liability against a municipal supervisor is certainly
not unique.
The law clearly allows actions against supervisors
under section 19%3 as long as a sufficient causal
connection is present and the plaintiff was deprived
under color law of a federally secured right. The
Supreme Court noted the causal requirement in
Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46
L.d.2d 561 (1976). . . . Other post-Rizzo cases
have recognized that the section 1983 language
“subjects, or causes to be subjected,” is broader
than direct personal involvement; it includes failure
to perform a duty if that failure causes deprivation
of protected rights. Johnson v. Duffy, 588 F.2d 740,
743 (9th Cir. 1978); Sims v. Adams, 537 F.2d 829,
$31 (Sth Cir. 1976).
This Court has held a cause of action under
§ 1983 was stated in a complaint that alleged a chief
9 The Fifth Circuit appears to have adopted similar rules. To be liable
under § 1983, a supervisory official must be either personally involved in
the acts causing the deprivation of a person's constitutional rights, or there
must be a causal connection between an act of the official and the constitu-
tonal violation sought to be addressed. Lozano v. Smith, 718 F.2d 756, 768
(Sth Cir. 1983). Supervisors may face liability under § 1983 where they
breach duties imposed by state or local laws, and as a result thereof, the
complained of constitutional tort occurs. See O' Quinn v. Manuel, 773 F.2d
605, 608 (Sth Cir. 1985), and numerous cases cited therein
22
of police was liable because his failure to establish
proper procedures or adequately train or supervise
personnel led to the deprivation of a prisoner’s
constitutional rights. Dewell v. Lawson, 489 F.2d
877 (10th Cir. 1974). Other circuits have also rec-
ognized a cause of action for a superior officer’s
negligence in training or supervising. E.g., Burton
v. Waller, 502 F.2d 1261, 1285 (Sth Cir. 1974), cert.
denied, 420 U.S. 964, 95 S.Ct. 1356, 43 L.Ed.2d
442 (1975); Beverly v. Morris, 470 F.2d 1356 (Sth
Cir. 1972); Carter v. Carlson, 447 F.2d 358, 365
(D.C. Cir. 1971), rev'd on other grounds sub nom.
District of Columbia v. Carter, 409 U.S. 418, 93
S.Ct. 602, 34 L.Ed.2d 613 (1973).
McClelland v. Facteau, 610 F.2d 693, 695-96 (10th Cir.
1979). See also Clay v. Conlee, 815 F.2d 1164, 117C (8th Cir.
1987); Hinshaw v. Doofer, 785 F.2d 1260, 1263 (Sth Cir.
1986); Hahn v. McLey, 737 F.2d 771, 773 (8th Cir. 1984);
Pearl v. Dobbs, 649 F.2d 608, 609 (8th Cir. 1981); Sims v.
Adams, 537 F.2d 829, 832 (Sth Cir. 1976).
The lower courts’ application of the City of Canton
“deliberate indifference” standard, applicable to failure to
train claims brought against either municipalities or munici-
pal officials in their official capacities, to the instant failure to
train claim brought against Connick in his individual capacity
is directly contrary to the wealth of jurisprudence discussed
above. In particular, the decision appears irreconcilable with
Ybarra v. Reno Thunder Mobile Home Village, supra, where
the court held that a claim against a district attorney in his
individual capacity could be stated for failure to train his
subordinates to refrain from destroying exculpatory evidence.
723 F.2d at 680.'° In none of the cases discussed above,
including Ybarra, did the court impose the “deliberate indif-
ference” standard embraced by the lower court herein, nor did
'0 The Ybarra court ultimately found that, while the claim could be
stated, the plaintiff failed to produce sufficient evidence to support it. 723
F.2d at 681.
23
they require that the defendant’s conduct constitute the “cus-
tom or policy” of the municipality, which is the condition the
“deliberate indifference” standard was designed to fulfill.
The lower courts’ total abandonment of precedent could
be more easily understood if this action was necessary in
order to protect Connick and others similarly situated from
frivolous claims, or if it somehow furthered the delicate
balance which this Court has struck in interpreting § 1983
against the competing interests of the citizenry in protection
from abridgment of their constitutional rights, municipal offi-
cials in freedom to exercise the functions of their office, and
the public in protection of the public fisc. However, it does
not. This equilibrium was explained in Owen v. City of Inde-
pendence, supra, where this Court held that “qualified immu-
nity” could not be asserted by a municipality as a defense to
§ 1983 liability.
We believe that today’s decision, together with prior
precedents in this area, properly allocates [the cost
of official misconduct] among the three principals
in the scenario of the § 1983 cause of action: the
victim of the constitutional deprivation, the officer
whose conduct caused the injury; and the public, as
presented by the municipal entity. The innocent
individual who is harmed by an abuse of govern-
mental authority is assured that he will be compen-
sated for his injury. The offending official, so long
as he conducts himself in good faith, may go about
his business secure in the knowledge that a quali-
fied immunity will protect him from personal lia-
bility for damages that are more appropriately
chargeable to the populace as a whole. And the
public will be forced to bear only the costs of injury
inflicted by the “execution of a government’s policy
or custom, whether made by its lawmakers or by
those whose edicts or acts may fairly be said to
represent official policy.” Monell v. New York City
Dept. of Social Services, 436 U.S., at 694, 98 S.Ct.
at 2038.
24
445 U.S. at 658-59, 100 S.Ct. at 1419. The lower courts’
decision destroys this symmetry for no good reason. Connick
does not need the benefit of the “deliberate indifference”
standard in order to be protected from undeserved liability.
His protection is found in the “qualified immunity” that he is
entitled to assert, as well as in the requirement that Bernard
prove Connick’s “personal participation” (fault and causation)
in order to establish liability. If these defenses do not avail to
Connick, then he is not entitled to the great protection
afforded him by the lower courts. The effect of giving Con-
nick the benefit of the “deliberate indifference” standard is to
deprive the innocent victim who has been injured by an abuse
of governmental authority (which abuse is already established
by Connick’s failure to qualify for qualified immunity) of his
right to compensation. In short, the lower courts tilted the
balance in Connick’s favor, upsetting the policy equilibrium
carefully struck by this Court for § 1983 actions, in direct
contravention of controlling precedents.
Ill. The lower courts’ requirement that petitioner pro-
duce subjective evidence of Connick’s “deliberate
indifference” to his constitutional rights is contrary
to this Court’s holding in City of Canton v. Harris
and the Second Circuit’s holding in Walker v. City of
New York.
Assuming that “deliberate indifference” is the correct
standard to be applied to Bernard’s claim against Connick in
his individual capacity, an examination of the lower courts’
holding that this standard was not met reveals that a purely
subjective test was applied. In its first treatment of this issue
dismissing Bernard’s claim against the defendants, it noted
that the defendants had produced evidence that all of Con-
nick’s-assistants were graduates of accredited law schools and
were members of the bar, and that Brady was “an important
concern to the office.”
This evidence remains uncontroverted except by
plaintiff’s bear (sic) allégations, for plaintiff has
25
adduced no evidence even suggesting that the Brady
rule was a matter of deliberate indifference to the
District Attorney’s Office. Mere allegations to the
effect that the potential for constitutional violations
is “self evident,” does not meet plaintiff’s burden of
adducing some evidence that the training policy
demonstrated deliberate indifference to constitu-
tional rights.
12a, infra. The Fifth Circuit affirmed the dismissal of the
claims against the defendants in their official capacities,
merely noting that “a review of the record reveals that the
district court was correct in finding that no genuine issue of
material fact existed on this issue.” 22a, infra. It stated that
Bernard did not produce any evidence of “deliberate indif-
ference,” but rather “merely relied upon his allegations.” /d.
On remand, when faced with Bernard’s claim against Connick
in his individual capacity, the district court again found a lack
of proof of “deliberate indifference” for the reasons “dis-
cussed in the court’s original minute entry on this issue.” 29a,
infra. This holding was affirmed without opinion. See la,
infra.
However, this Court made clear in City of Canton v.
Harris, supra, that a subjective proof of deliberate intention
is not always required, and that there are cases where, due to
the nature of the right involved and the significant potential
for or high probability of its abridgement, deliberate indif-
ference may be self-evident.
[I]t may happen that in light of the duties assigned
to specific officers or employees the need for more
or different training is so obvious, and the inade-
quacy so likely to result in the violation of constitu-
tional rights, that the policymakers of the city can
reasonably be said to have been deliberately indif-
ferent to the need. In that event, the failure to
provide proper training may fairly be said to repre-
sent a policy for which the city is responsible, and
for which the city may be held liable if it actually
causes injury.
26
489 U.S. at 339-90, 109 S.Ct. at 1205. See also Id., at 397,
109 §.Ct. at 1209 (J. O'Connor, concurring) (The need for
training may be established through evidence that a munici-
pality failed to train its employees concerning a clear consti-
tutional duty implicated in recurrent situations.) This Court
offered as an example the need for police officers to arrest
fleeing felons, where the need to train officers in the constitu-
tional limitations on the use of deadly force is “ ‘so obvious,’
that failure to do so could properly be characterized as ‘delib-
erate indifference’ to constitutional rights.” /d., at 390 n.10,
109 S.Ct. at 1205 n.10.
Circuit courts applying City of Canton v. Harris have
recognized that proof of the subjective “deliberate indif-
ference” required by the lower courts here is not always
required. “[L]iability may be imposed on a municipality upon
a showing of deliberate indifference exhibited by a pattern of
inadequate training, supervision and discipline of police offi-
cers provided there is a causal connection between such
inadequacies and the risk of harm to others.” Parker v. Dis-
trict of Columbia, 850 F.2d 708, 713 (D.C. Cir. 1988), cert.
denied, 489 U.S. 1065, 109 S.Ct. 1339, 103 L.Ed.2d 809
(1989). “Deliberate indifference” is shown from evidence that
a municipality “fail[ed] to train its employees with respect to
a clear constitutional duty implicated in recurrent situations
that a particular employee is certain to face.” Canfield v.
School District No. 230, 991 F.2d 1316, 1327 (7th Cir. 1993).
Thus, municipalities have been found deliberately indifferent
without any subjective proof whatsoever. See, e.g., Davis v.
Mason County, 927 F.2d 1473, 1483 (9th Cir. 1991), cert.
denied, ___ U.S. ___, 112 S.Ct. 275, 116 L.Ed.2d 227 (1991)
(failure to train constituted “deliberate indifference” where
the Sheriff's Department devised a “field training program”
which was never implemented instead of sending deputies to
state training academy); Hopkins v. Andaya, 958 F.2d 881,
888 (9th Cir. 1992) (a city and its chief of police might be
held liable for improper training, even if the defendant police
officer were exonerated, since they put an officer on the street
27
who was so badly trained and instructed that he let his baton
be taken away from him and then had to kill an unarmed
civilian to save his own life); Tapia v. City of Greenwood, 965
F.2d 336, 338 (7th Cir. 1992); Barber v. City of Salem, Ohio,
953 F.2d 232, 236 (6th Cir. 1992).
City of Canton v. Harris's objective test was applied by
the Second Circuit to a claim against a municipality for its
district attorney’s violation of the plaintiff's Brady rights in
Walker v. City of New York, supra. The court carefully
analyzed City of Canton, and concluded that “deliberate indif-
ference” could be demonstrated without subjective proof of
intent when three conditions were met.
First, the plaintiff must show that a policymaker
knows “to a moral certainty” that her employees
will confront a given situation. . . . Second, the
plaintiff must show that the situation either presents
the employee with a difficult choice of the sort that
training or supervision will make less difficult or
that there is a history of employees mishandling the
Situation. . . . A choice might also be difficult
where, although the proper course is clear, the
employee has powerful incentives to make the
wrong choice. Finally, the plaintiff must show that
the wrong choice by the city employee will fre-
quently cause the deprivation of a citizen’s rights.
974 F.2d at 297-98. Applying this test to the facts, the court
concluded that “deliberate indifference” was demonstrated by
the mere lack of any formal Brady training:
First, the district attorney knows to a moral cer-
tainty that ADA’s will acquire Brady material. Sec-
ond, contrary to the district court, we do not think
that in 1971, just seven years after Brady was
decided, that the Brady standard was so obvious or
easy to apply as to require, as a matter of law, no
training or supervision. Indeed, the evidence with-
held in this case, though clearly Brady material,
was not the sort that one would obviously turn over,
absent some knowledge of Brady. . . . Finally,
28
withholding Brady material will virtually always
lead to a substantial violation of constitutional
rights.
974 F.2d at 300.
Walker’s compelling logic is hard to dispute, which is
perhaps why the lower courts completely ignored the case
even though it was cited to them. District Attorneys know
beyond the shadow of any doubt that their prosecutors will
encounter Brady material on an almost daily basis, and they
must know that failure to divulge this material destroys the
accused’s constitutional rights. They should also be aware of
the high probability of abuse. Indeed, one of Connick’s own
assistants admitted that he did not “know what the heck
[Brady] was back then” and was not sure “what it is now
today.” 12a, infra. Aside from the possible lack of knowledge
of the “intricacies” of Brady addressed by the Second Circuit,
there is the temptation for abuse which necessarily results
from any system that encourages zealous advocacy, which
also increases the need for some express instruction regarding
Brady, and perhaps some measure of discipline for its flagrant
violation. To this must be added the fact that prosecutors are
armed with immense power by a vocal public demanding
convictions, further triggering an obligation to ensure that all
so armed are aware of its limitations. Commenting on the
plight of the Walker plaintiff, Professor Stephen Gillers noted
the great danger in “[un]trained lawyers weilding [sic] public
power.” Under Color of Law, ABA J., Dec. 1992, at 121. The
Ninth Circuit Court of Appeal expressly stated that it “shared
[Professor Gillers’] concern” in United States v. Kalfayan, 8
F.3d 1315, 1324 (9th Cir. 1993).
The lower courts’ holding that subjective proof of “delib-
erate indifference” was required by Bernard in order to sur-
vive summary judgment is impossible to reconcile with this
Court’s express statements in City of Canton v. Harris, supra,
and with the Second Circuit’s careful and considered applica-
tion of those statements in Walker v. City of New York, supra,
as well as the cases from other circuits which have recognized
29
that subjective proof of deliberate indifference is not always
required. Under the facts of this case, assuming that Bernard
had to demonstrate “deliberate indifference” in order to
recover against Connick in his individual capacity, Bernard
made a more than sufficient showing.
CONCLUSION
This case is one more example of the Fifth Circuit’s
apparent hostility toward § 1983 actions. Most recently, this
Court had to rebuke that circuit by striking down the “height-
ened pleading” requirement that it was imposing in § 1983
cases. See Leatherman vy. Tarrant County Narcotics Unit, ___
U.S. __, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993). In this
case, while the Fifth Circuit recognized that Bernard’s claim
against Connick in his individual capacity could not be swept
under the same rug as his claims against the defendants in
their official capacities, it did so only begrudgingly. It
expressly stated that its remand order was issued “reluc-
tantly,” and invited the district court to “find a defense of
qualified immunity available,” 26a, infra, bait which, not
surprisingly, the district court took with relish. In the process,
the district court committed gross and flagrant errors, paying
only lip service to the precedents of this Court and ignoring
precedents directly on point from other circuits. The Fifth
Circuit has affirmed here without even issuing an opinion.
Writs must be granted in this case to protect victims from the
abuse of governmental power, violative of their Constitutional
30
rights, and to remind the courts that legitimate § 1983 actions
cannot be sabotaged by courts without legal reason.!!
Respectfully submitted,
Gary W. Bizar Mack E. BarHAm
Pierce & Bizar Ropert E. Arceneaux*
639 Loyola Avenue, Katruy S. Austin
Suite 1620 BarHAM & ARCENEAUX
New Orleans, Louisiana A Professional Law
70113 Corporation
Telephone: (504) 525-1328 Poydras Center, Suite 2700
650 Poydras Street
New Orleans, Louisiana
70130
Telephone: (504) 525-4400
Counsel of Record*
Attorneys for Petitioner, Errol Bernard
'! While Bernard certainly welcomes a full grant of certiorari and the
opportunity to present his case to this Court, it may well be that a
peremptory grant, with instructions to the Fifth Circuit to reconsider in
light of controlling precedents, may be sufficient to fulfill this Court’s
supervisory role.
la
Filed: 11/04/93
Charles R. Fulbruge IIL, Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 92-9502
ERROL BERNARD,
Plaintiff-Appellant,
versus
HARRY CONNICK, Individually and in
his official capacity as New Orleans
District Attorney,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Louisiana
(CA 89 CV 4916)
Before CUNNINGHAM, DAVIS and JONES, Circuit
Judges.
PER CURIUM:
AFFIRMED. See Local Rule 47.6.
Filed: 04/08/91
Date of Entry: 04/09/91
Loretta G. Whyte, Clerk
MINUTE ENTRY
BEER, J.
April 8, 1991
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ERROL BERNARD CIVIL ACTION
VERSUS NO. 89-4916
HARRY CONNICK, ET AL SECTION M
This matter came before the Court for hearing on
April 3, 1991 on the motions of defendants, Connick,
Bane, Lentant, Julien and Jennings, to dismiss or alter-
natively for summary judgment. After a consideration of
the briefs submitted and the argument of counsel, this
Court dismissed the claims against the defendant pros-
ecuting attorneys in their individual capacities based on
the prosecutors absolute immunity. Imbler v. Pachtman, 96
S.Ct. 984 (1976). The Court took under consideration the
motions to dismiss or for summary judgment on the
claims against the defendants in their official capacities.
After a consideration of all of the arguments and after a
review of the applicable law, it is the opinion of this
Court that the motions should be granted.
Factual Background.
On April 18, 1975 plaintiff shot and killed Vernon
Joseph in New Orleans, Louisiana. After several eye wit-
nesses identified plaintiff as the man who shot Joseph he
3a
was arrested. A weapon, later proved to be the weapon
used to shoot Joseph, was found on plaintiff's person,
and following the reading of his rights, plaintiff admitted
that he had shot Joseph. Plaintiff told police that he had
been attacked by Joseph, and that he had pulled out his
revolver and shot Joseph. He could give no reason for the
attack and claimed that he had never met Joseph before
On May 1, 1975 plaintiff was indicted for second
degree murder. An Application for Bill of Particulars was
filed on behalf of plaintiff, specifically requesting produc-
tion of “any statements, evidence, or any information of
any nature that might be considered exculpatory in
””
nature.” An answer to the Bill of Particulars was pre-
pared by defendants, Bridget Bane and David Jennings,
which stated that the State had no such evidence other
than defendant's statements. The district attorney's files
eventually contained the police report in which plaintiff
claimed self defense; the signed statement of eyewit-
nesses Theodore Hunter, that he had seen a “scuffle”
during the course of which the victim was pushed to the
ground and shot; the statements of the victim’s family
reflecting his recent paranoid behavior, his prior criminal
history, and the fact that he had been released from
prison the day before the shooting; and an unofficial
police report in which two police detectives concluded
that the plaintiff had acted in self-defense “to a certain
extent.” The District Attorney’s Office never supple-
ment[ed] the previous response to the plaintiff's request
for exculpatory statements and materials.
On January 5 and 6, 1976 plaintiff was tried for
second degree murder. The State of Louisiana was repre-
sented by defendants Bridget Bane, John Lenfant, [V, and
4a
Henry P. Julien, Jr. Plaintiff was convicted and sentenced
to life imprisonment.
In November of 1988, an application for post convic-
tion relief was filed on behalf of plaintiff on the basis of
information contained in the initial police report, a copy
of which plaintiff first received on November 8, 1988.
Plaintiff asserted that the report contained certain excul-
patory information to which he was entitled under Brady
v. Maryland, 83 S.Ct. 1194 (1963). On October 27, 1989,
Hon. Patrick Quinlan of the Criminal District Court for
the Parish of Orleans vacated the sentence imposed upon
Mr. Bernard and ordered that he be afforded a new trial.
On December 15, 1989, plaintiff entered an Alford plea of
guilty to the amended charge of manslaughter. A sen-
tence of twenty-one years was imposed, with credit for
time served, the plaintiff has since been released.
On November 9, 1989, plaintiff brought this action
under 42 U.S.C. § 1983 against District Attorney Harry
Connick, former Assistant District Attorneys Bridget
Bane, John Lenfant, IV, Henry P. Julien, Jr., and David
Jennings,' as well as certain of the police officers
involved in his arrest, in which he alleges that the defen-
dants deprived him of his constitutional right to have
exculpatory material made available to him under Brady
v. Maryland, 83 S.Ct. 1194 (1963).
On March 5, 1991, the defendant prosecuting attor-
neys filed this Motion to Dismiss or Alternatively for
Summary Judgment.
| Defendant Jennings was added as a defendant on October
17, 1990
5a
LAW AND ANALYSIS
I. The Standard of Review.
This matter comes before the Court on Defendants
Motions for Summary Judgment.? Federal Rule of Civil
Procedure 56 provides that summary judgment is appro-
priate if the record discloses “that there is no genuine
issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” The rule
“mandates the entry of summary judgment after ade-
quate time for discovery and upon motion, against a
party who fails to make a showing sufficient to establish
the existence of a [material fact.]” Celotex Corp. v. Catrett,
106 S.Ct. 2548, 2553 (1986). The pleadings, depositions,
admissions, and answers to interrogatories together with
affidavits, must demonstrate that no genuine issue of
material fact remains. Id. All the facts must be reviewed
drawing all inferences most favorable to the party oppo-
sing the motion. Randolph v. Laeisz, 896 F.2d 964 (5th Cir.
1990).
When, as here, the movant is the defendant, the
movant initially need only make a “ ‘showing’ - that is,
pointing out to the District Court — that there is no
absence of evidence to support the nonmoving party’s
case” Celotex, 106 S.Ct at 1554. However, a “showing” is
more than a conclusory allegation; the movant must affir-
matively demonstrate the absence of evidence in the
2 Defendants’ Motions to Dismiss pursuant to Federal Rule
of Civil Procedure 12(b)(6) are also technically before the Court,
but since matters outside the pleadings have been presented
and considered by the Court, the motions shall be treated as
motions for summary judgment.
6a
record. Id. at 2553. If the defendant makes such a “show-
ing,” the plaintiff may oppose the motion with any of the
kinds of evidence listed in Rule 56(c), and although the
plaintiff need not produce admissible evidence, the plain-
tiff must go beyond the pleadings to designate specific
disputed facts. Id. The plaintiff must “do more than sim-
ply show that there is metaphysical doubt as to the mate-
rial facts.” Matsushital Electric Industrial Co. v. Zenith Radio
Corp., 106 S.Ct. 1348 (1986). If the plaintiff fails to do so
the court must grant summary judgment, but if the plain-
tiff does make the requisite showing, the court then must
decide if the defendant has demonstrated the absence of a
genuine issue of material fact by a preponderance of the
evidence. Anderson v. Liberty Lobby, Inc., 106 S.Ct. 2505
(1986).
Il. The Law of § 1983
The only aspect of this case still before this Court is
the claims against the prosecuting attorneys in their offi-
cial capacities. Suits against state and local officials in
their official capacities are essentially suits against the
government entity. Kentucky v. Graham, 105 S.Ct. 3099,
3105 (1985) (“As long as the government entity receives
notice and an opportunity to respond, an official-capacity
suit is, in all respects other than name, to be treated as a
suit against the entity.”). Therefore, the suit filed herein
against the prosecuting attorneys in their official capaci-
ties is to be treated in all respects as a suit against the
7a
Office of the District Attorney in and for the Parish of
Orleans, State of Louisiana.?
It is well settled that liability may not be imposed
upon a local government entity solely on a theory of
respondeat superior. Monell v. Dept. of Social Services, 98
S.Ct. 2018 (1978). In Monell the Supreme Court reasoned
that
.. a local government may not be sued for an
injury inflicted solely by its employees or
agents. Instead, it is when execution of a gov-
ernment’s policy or custom, whether made by
its lawmakers or by those whose edicts or acts
may fairly be said to represent official policy,
inflicts the injury that the government as an
entity is responsible under § 1983.
Id. at 2083. Thus, the issue in this case is whether “there is
a direct causal link between a municipal policy or cus-
tom, and the alleged constitutional deprivation.” Canton
v. Harris, 109 S.Ct. 1197 (1989). This Court must, there-
fore, first determine if there was indeed an unconstitu-
tional government policy or custom.
After a review of the extensive analysis in recent
Supreme Court jurisprudence as to what qualifies as
municipal policy, see e.g., Canton, supra; St. Louis v. Prap-
rotnik, 108 S.Ct. 915 (1988); Springfield v. Kibbe, 107 S.Ct.
* Defendants contend that the Office of the District Attor-
ney is a branch of the State of Louisiana, and that this suit is in
essence a suit against the state for money damages, and is
therefore barred under the Eleventh Amendment. This same
defense was, however, rejected by the United States Court of
Appeals for the Fifth Circuit in Mairena v. Foti, 816 F.2d 1061 (Sth
Cir. 1987).
8a
1114 (1987); Los Angeles v. Heller, 106 S.Ct. 1571 (1986); Okla-
homa City v. Tuttle, 105 S.Ct. 2427 (1985), it is apparent that a
plaintiff can demonstrace the existence of a “policy” for the
purposes of a § 1983 action in three separate ways. To prove
“
the existence of a “policy” the plaintiff must prove either the
existence of an official policy which is itself unconstitutional,
Monell, supra; or an official policy, which although neutral
upon its face, demonstrates a deliberate choice to result in a
deprivation to the plaintiff of his constitutional rights, Can-
ton, supra; or a widespread “custom or usage” of depriving
persons of their constitutional rights, Adickes v. Kress & Co.,
90 S.Ct. 1598 (1970). Plaintiff has put forward claims alleging
the existence of a government policy under each of the
theories listed above, and each claim will be analyzed sep-
arately.
1. The existence of an unconstitutional policy.
The law has been ciear since Monell, supra, that
“Local governing bodies, therefore, can be sued directly
under § 1983, for monetary, declaratory, or injunctive
relief where, as here, the action alleged to be unconstitu-
tional implements or executes a policy statement, ordi-
nance, regulation or decision officially adopted and
promulgated by that body’s officers.”
Initially it should be noted that it is not clear whether
plaintiff specifically alleges in his complaint that it was
the official policy of the Orleans Parish District Attorney
to withhold Brady material. Plaintiff's complaint, in addi-
tion to alleging individual and conspiratorial action by
the defendant prosecutors, alleges that it was the policy
of District Attorney Harry Connick “to neglect or refuse
QOD, EE eoOoOorereeooooo
9a
to supervise, discipline or in any way control defendants,
assistant district attorneys,. .. . ” Such language while
clearly stating a “failure to train claim,” discussed infra,
does not allege a policy which is itself unconstitutional.
However, in Answers to Interrogatories, No. 4, plaintiff
alleges that:
Harry Connick directed and instructed all of his
Assistant District Attorneys in all cases to with-
hold exculpatory information contained in
police reports. Additionally,. . .. Harry Connick
advised all of his Assistant District Attorneys
not to provide any defendants including the
plaintiff with any copies of any police reports
unless ordered to by a court regardless of their
content .
Furthermore in his memorandum in opposition to this
motion, plaintiff alleges that he pled that defendant Con-
nick established “a policy or custom of withholding evi-
dence to which a criminal defendant would be entitled
under Brady v. Maryland.” For the purposes of this
motion, the Court will presume that the plaintiff’s com-
plaint adequately pleads a policy within the Orleans Par-
ish District Attorney’s Office of withholding exculpatory
evidence.
Harry Connick was the District Attorney for Orleans
Parish at the time at issue, and it is not disputed that he
had the authority to make policy for the Orleans Parish
District Attorney’s Office at that time. Therefore, if the
plaintiff could present credible evidence that it was Con-
nick’s policy to withhold material then plaintiff would be
entitled to proceed to trial on that theory. See, Mairena v.
Foti, 816 F.2d 1061 (5th Cir. 1987) (upholding jury award
10a
that defendant district attorney had established chal-
lenged policy). But plaintiff has presented no evidence
whatsoever of any such policy. Defendants have pre-
sented the deposition testimony of Connick and the
sworn affidavits of Bridget Bane and David Jennings all
attesting to the fact that it was the policy of the District
Attorney's Office to turn over all exculpatory material in
compliance with Brady. Plaintiff has not countered such
testimony with any evidence whatsoever. There is no
genuine issue as to the existence of a policy of withhold-
ing evidence and summary judgment for the defendant
on any such claim is appropriate.
2. The existence of a neutral policy deliberately
resulting in a deprivation of constitutional rights
the failure to train claim.
In Canton v. Harris, supra, the Supreme Court clearly
set out the requirements for imposing liability on a local
government entity for inadequate training of its
employees. The Court held that “the inadequacy of
[employee] training may serve as the basis for § 1983
liability only where the failure to train amounts to delib-
erate indifference to the rights of persons with whom the
police come into contact.” Id. at 1204. The Court speci-
fically rejected the use of a “negligence” or even “gross
negligence” standard, and consistent with its prior case
law held that-only where a failure to train “reflects a
‘deliberate’ or ‘conscious’ choice by a municipality
.can a city be liable for such a failure under § 1983.” Id.
The Court reasoned: :
lla
It may seem contrary to common sense to assert
that a municipality will actually have a policy of
not taking reasonable steps to train its
employees. But it may happen that in lights of
the duties assigned to specific officers or
employees the need for more or different train-
ing is so obvious, and the inadequacy so likely
to result in the violation of constitutional rights,
that the policymakers of the city can reasonably
be said to have been deliberately indifferent to
the need. In that event, the failure to provide
proper training may fairly be said to represent a
policy for which the city is responsible, and for
which the city may be held liable if it actually
causes injury.
Id. at 1205. This standard requires more than a showing of
inadequate training or even grossly inadequate training,
it requires proof that the District Attorney consciously
instituted a policy which would obviously result in con-
stitutional violations. The Court noted that “ ‘[M]Junicipal
liability under § 1983 attaches where —- and only where — a
deliberate choice to follow a course of action is made
from among various alternatives’ by city policy makers.”
Id. at 1205 (quoting Pembaur v. Cincinnati, 106 S.Ct. 1292,
1300 (1986)). Such a standard imposes a heavy burden on
§ 1983 plaintiffs.
There is no doubt that plaintiff has alleged that the
Orleans Parish District Attorney’s Office had a policy of
inadequate training and supervision in “reckless disre-
gard” of his constitutional rights. As evidence of that
claim the plaintiff cites the deposition testimony of defen-
dants to the effect that no formal Brady training was
given the assistants. Plaintiff also submits that the defen-
dants’ lack of knowledge of Brady, demonstrated by their
12a
failure to recognize the evidence in this case as exculpa-
tory, is also evidence of the lack of adequate training.
Plaintiff also submits the deposition of defendant Lenfant
in which he states: “I don’t know what the heck [Brady]
was back then and I’m not sure what it is now today.”
Although in support of the motions for summary judg-
ment the defendants submit evidence as to the adequacy
of the training, it is the opinion of this Court that the
plaintiff has demonstrated the existence of a genuine
issue as to the adequacy of the training programs.
But under the standard announced in Canton, supra,
the plaintiff must do more than demonstrate the existence
of an issue as to the adequacy of the training program. To
survive a motion for summary judgment, the plaintiff
must present evidence demonstrating that the inadequate
training was the result of deliberate indifference by the
District Attorney's Office. Defendants present evidence
that all of the defendants had graduated from accredited
law school, and all had passed the Louisiana State Bar
Exam. Plaintiff also submits the deposition testimony of
defendants Bane and Connick to the effect that Brady was
an important concern to the office. This evidence remains
uncontroverted except by plaintiff's bear [sic] allegations,
for plaintiff has adduced no evidence even suggesting
that the Brady rule was a matter of deliberate indifference
to the District Attorney’s Office. Mere allegations to the
effect that the potential for constitutional violations is
“self evident,” does not meet plaintiffs burden of adduc-
ing some evidence that the training policy demonstrated
deliberate indifference to constitutional rights.
Although plaintiff does not specifically make the
argument, it could be argued that the prior incidents of
13a
failures by Assistant District Attorneys to turn over Brady
material made the need for further training obvious. As
the Court noted in Canton, “It could also be that the
lemployees] . . . so often violate constitutional rights that
the need for further training must have been plainly
obvious to the city policy makers, who, nevertheiess, are
‘deliberately indifferent’ to the need.” Id. at 1205 n. 10.
Plaintiff submits as evidence of such past violations thir-
teen cases over the past fifteen years in which the courts
have found that prosecutors in the District Attorney’s
Office have withheld evidence in violation of Brady. How-
ever, defendant correctly points out that thirteen such
violations over a fifteen year period represent a truly
insignificant number of violations. Plaintiff argues that
these case[s] represent only the discovered violations,
and only the reported cases, and that criminal defendants
are denied Brady material as a matter of course. However,
plaintiff has produced no evidence of any other viola-
tions, and this Court cannot conclude on the basis of
these thirteen cases that “the need for further training
must have been plainly obvious” to the District Attor-
ney’s Office. Id. at 1205 n. 10.
Plaintiff has simply produced no evidence tending to
establish that the alleged inadequate training was the
result of a “policy.” The Supreme Court was clear in
Canton that the plaintiff cannot meet his burden of proof,
“by merely alleging that the existing training program for
a class of employees, . . . represents a policy for which the
city is responsible.” Id. at 1205. That is all plaintiff has
done in this case. There is no genuine issue as to the
existence of a policy of inadequate training and summary
judgment on the issue is therefore appropriate.
l4a
3. The existence of a Custom of Withholding Brady
Material.4
The law is clear that a municipality may be held
liable for the unconstitutional acts of its employees if the
plaintiff can prove that the employee’s acts were taken
pursuant to “a widespread practice that, although not
authorized by written law or express municipal policy, is
‘so permanent and well settled as to constitute a “custom
or usage” with the force of law.’ ” Praprotnik, 108 S.Ct. at
926 (quoting Adickes v. S.H. Kress & Co., 90 S.Ct. 1598
(1970)). The custom must, however, be so widespread that
it can be said to represent municipal policy. Coon v. Led-
better, 780 F.2d 1158 (5th Cir. 1986); Bennett v. Slidell, 735
F.2d 861 (5th Cir. 1984), cert. denied, 105 S.Ct. 3476 (1985).
Although plaintiff has alleged that at the time of his
prosecution there was a custom in the Orleans Parish
District Attorney’s Office of withholding Brady material,
plaintiff has failed to produce any evidence other than
the thirteen cases to substantiate his claim that there was
such a policy. Proof of the existence of thirteen cases of
such misconduct over a fifteen year period is wholly
inadequate to show the existence of custom so well set-
tle[d] that it can be said to constitute municipal policy.
The evidence indicates that incidence of misconduct were
* As the Supreme Court noted in Canton, such a claim of
custom is any (sic) many respects nothing more than a restate-
ment of a failure to train claim. 109 S.Ct. at 1203 n. 5. For the
purposes of this motion this Court witi nevertheless treat this as
a separate theory of recovery.
15a
rare, and that it was not the custom of the District Attor-
ney’s Office to withhold evidence. Plaintiff has failed to
make a showing of any genuine issue as to the existence
of such a custom and summary judgment on this issue is
therefore appropriate.
It is the opinion of this Court that defendants have
met their burden of demonstrating that there was no
unconstitutional policy or custom of withholding Brady
material in the Office of the District Attorney for the
Parish of Orleans. Under existing law the plaintiff cannot
prevail on his claim, and summary judgment is appropri-
ate.
Counsel for mover is requested to submit a judgment
consistent with this opinion.
Signed this 8th day of April, 1991.
/s/ Peter Beer
United States District Judge
l6a
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 91-3444
Summary Caiendar
ERROL BERNARD,
Plaintiff-Appellant,
v.
HARRY CONNICK, ET AL.,
Defendant-Appellees.
Appeal from the United States District Court
for the Eastern District of Louisiana
(CA-89-4916-M-2)
(January 31, 1992)
Before JONES, DUHE, and WIENER, Circuit Judges,!
EDITH H. JONES, Circuit Judge:
Appellant Errol Bernard contests the district court’s
dismissal and summary judgement for the defendants,
New Orleans District Attorney Harry Connick and four
! Local rule 47.5 provides: “The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal profes-
sion.” Pursuant to that Rule, the court has determined that this
opinion should not be published.
17a
former Assistant D.A.’s, after Bernard sued them for
Brady violations. We agree that most of the district court's
reasoning, affirm its judgment, in part, but vacate and
remand in part.
BACKGROUND
In 1975, Bernard shot and killed Vernon Joseph in
New Orleans. Bernard was convicted of second degree
murder and sentenced to life imprisonment. In 1988, Ber-
nard was granted a new trial on grounds that the state
failed to disclose a police report that contained exculpa-
tory information to which he was entitled under Brady v.
Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed. 2d 215
(1963). Bernard entered an Alford guilty plea to an
amended charge of manslaughter, was sentenced to 21
years with credit for time served, and has since been
released.
Bernard filed a § 1983 action against Orleans Parish
District Attorney Harry Connick and four former Assis-
tant District Attorneys in their individual and official
capacities for violating his Brady rights.
Upon defendants’ motion, the district court dis-
missed Bernard’s claim against the defendants in their
individual capacities on the basis of absolute pros-
ecutorial immunity. Imbler v. Pachtman, 424 U.S. 409, 96
S.Ct. 984, 47. L.Ed.2d 128 (1976). The court dismissed
Bernard’s claim against defendants in their official capac-
ities because it found that a genuine issue of material fact
2 Various police officers originally joined as defendants
were voluntarily dismissed.
,
ee
l8a
did not exist on the issue whether the Orleans Parish
District Attorney’s Office had a policy or custom of with-
holding Brady material. Bernard filed a timely notice of
appea I.
DISCUSSION
A. Dismissal of Assistant District Attorneys in
their individual capacities.
Bernard argues that the Assistant District Attorneys
should not have been dismissed in their individual capac-
ities on the basis of prosecutorial immunity because they
acted deliberately and in concert with each other and
conspired to deprive him of his right to exculpatory
materials. He argues that their actions were outside the
scope of their employment as prosecutors, and so they
are not entitled to absolute immunity.
The law on this issue clearly forecloses Bernard’s
claim. Imbler heid that a prosecutor has absolute immu-
nity from civil liability for actions that are connected with
the judicial phase of the criminal process. 424 U.S. at 430.
In Henzel v. Gerstein, 608 F.2d 654, 657 (5th Cir. 1979), this
Court stated that /mbler prosecuted a prosecutor even if
he deliberately withheld exculpatory information. The
plaintiff in Henzel also alleged that the defendants were
engaged in a conspiracy to deprive him of his constitu-
tional rights, in violation of 42 U.S.C. § 1985. Id. at 659.
While this Court did not suggest that allegations of con-
spiracy among prosecutors to withhold exculpatory evi-
dence would fall outside the scope of prosecutorial
immunity, Henzel held instead that the plaintiff’s allega-
tions of conspiracy were bare and that he had failed to
19a
allege facts showing the existence of a conspiracy. The
district court’s grant of summary judgment was affirmed.
Bernard misreads Thomas -v. Harris County, 784 F.2d
648 (Sth Cir. 1986), for the proposition that a conspiracy
will prevent a prosecutor from having absolute pres-
ecutorial immunity. In Thomas, this court stated that
“absent any conspiracy, [the district attorney] is abso-
lutely immune from § 1983 liability for any actions he
carried out in his role as prosecutor.” Id. at 652, citing
Imbler v. Pachtman. Nowhere does Imbler suggest that
allegations of conspiracy will defeat prosecutorial immu-
nity, and in fact, the plaintiff in Imbler did allege a con-
spiracy. Imbler, 424 U.S. at 415-16. Under Imbler and
Henzel, it appears that the conspiracy allegations which
Bernard has made against the Assistant District Attorneys
are within the scope of prosecutorial immunity.
B. Dismissal of all defendants in their official
capacities.
Bernard argues that there are genuine factual dis-
putes as to whether District Attorney Connick had a
custom or policy of inadequate training which reflects
deliberate indifference to the rights of individuals and
whether his injury was the result of inadequate training.
Bernard alleged that
it is and has been the policy of the defendant,
Harry Connick to neglect or refuse to supervise,
discipline or in any way control defendants,
assistant district attorneys, in their exercise of
their functions in their failure to enforce the
laws of the State of Louisiana and the United
States and is evidence of a callous disregard of
20a
the rights of the public, including that of the
plaintiff and exhibits a lack of that degree of due
care which a prudent and reasonable individual
would show in exercising his duties as Orleans
Parish District Attorney. The defendant has
exhibited a policy of reckless disregard of
human life.
By these allegations, Bernard seeks to impose liability on
the defendants in their official capacities.
Official capacity suits are essentially just another way
to plead an action against the governmental entity of
which the defendant government official is an agent.
Kentucky v. Graham, 473 U.S. 159, 165-66, 105 S.Ct. 3099, 87
L.Ed.2d 114 (1985). Therefore, this suit filed against
defendants-in their official capacities is to be treated as a
suit against the Orleans Parish District Attorney’s Office,
since the Office did receive notice and did respond.
Liability under 42 U.S.C. § 1983 may not be imposed
on a government entity on a theory of respondeat supe-
rior for the actions of government employees. Monell v.
Department of Social Services of the City of New York, 436
U.S. 658, 690-94, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).
Rather, a government entity is responsible under § 1983
‘4
only when “execution of a government's policy or cus-
tom, whether made by its lawmakers or by those whose
edicts or acts may fairly be said to represent official
policy,” causes an injury. Id. at 694.
A plaintiff can establish the existence of an official
policy in several ways. He can prove the existence of an
official policy that in and of itself violates constitutional
rights. Moneil, 436 U.S. at 694-95; Oklahoma City v. Tuttle,
471 U.S. 808, 822, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985). He
ee
21a
can also prove the existence of a policy that is not uncon-
stitutional on its face, but reflects a deliberate or con-
scious choice by the governmental entity to adopt a
policy which evidences a “deliberate indifference” to con-
stitutional rights. Oklahoma City v. Tuttle, 471 U.S. at
823-24; Canton v. Harris, 489 U.S. 378, 388-89, 109 S.Ct.
1197, 103 L.Ed.2d 412 (1989). Third, he can prove the
‘
existence of a “custom or usage” of depriving persons of
their constitutional rights, which practice has become so
permanent and well settled that it can be said to repre-
sent municipal policy. Monell, 436 U.S. at 690-91; Adickes
v. S.H. Kress & Co., 398 U.S. 144, 162-69, 90 S.Ct. 1598, 26
L.Ed.2d 142 (1970); Bennett v. City of Slidell, 735 F.2d 861,
862 (5tn Cir. 1984) (en banc), cert denied, 472 U.S. 1016
(1985).
The district court construed Bernard’s pleading as
having raised all three “policy” claims. The court decided
first, however, that Bernard had presented no evidence
whatsoever of an overtly unconstitutional policy, so sum-
mary judgment was appropriate. In reviewing a grant of
summary judgment, an appellate court uses the same
standard used by the district court. The evidence, includ-
ing affidavits, depositions, answers to interrogatories,
and admissions on file, when considered in the light most
favorable to the non-movant, must demonstrate that there
is no genuine issue of material fact and that the moving
party is entitled to judgment as a matter of law. Dorsett v
Board of Trustees, 940 F.2d 121, 123-(5th Cir. 1991). The
opposing party cannot establish a genuine issue of mate-
rial fact by resting on the mere allegations of the plead-
ing. A properly supported motion for summary judgment
should be granted unless the opposing party produces
22a
sufficient evidence to demonstrate that a genuine factual
issue exists. I[d.
A review of the record reveals that the district court
was correct in finding that no genuine issue of material
fact existed on this issue. In Connick’s deposition testi-
mony and testimony and affidavits of his assistants, all
had attested to the fact that it was the policy of the
District Attorney’s Office to turn over all exculpatory
material in compliance with Brady. Bernard did not coun-
ter with any evidence whatsoever, but merely relied upon
his allegations.
Bernard next alleged that Connick had a policy of
failure to train his assistants to enforce the laws of the
United States and that this evidenced a callous disregard
of the rights of the public and exhibited a lack of due care
and reckless disregard.
In Canton v. Harris, the Supreme Court delineated the
circumstances under which “inadequate training [can] be
found to be a ‘policy’ that is actionable under § 1983.” 489
U.S. at 383. The first inquiry is “whether there is a direct
causal link between a municipal policy or custom and the
alleged constitutional deprivation.” Id. at 385. The plain-
tiff in Canton alleged that the city failed to adequately
train its police officers to recognize when medical treat-
ment was required by its detainees. The Court found that
the city’s policy for medical treatment was constitutional
on its face. Id. at 386. It held |
Only where a municipality’s failure to train its
employees in a relevant respect evidences a
“deliberate indifference” to the rights of its
inhabitants can such a shortcoming be properly
23a
thought of as city ‘policy or custom’ that is
actionable under § 1983... Only where a failure
to train reflects a “deliberate” or “conscious”
choice by a municipality - a “policy” as defined
by our prior cases — can a city be liable for such
a failure under § 1983.
Id. at 389. A city can be said to have been deliberately
indifferent if, in the light of the duties assigned to the
employees, the need for more or different training is
obvious and the inadequacy likely to result in the viola-
tion of constitutional rights. The plaintiff must also prove
that the deficiency in the training program actually
caused the injury. Id. at 390-91.
The court found that defendants’ evidence that all of
the assistants had graduated from accredited law schools,
had passed the Louisiana State Bar exam, and that Brady
was an important concern to the office remained uncon-
troverted by any evidence presented by Bernard. The
court also considered the possibility that prior incidents
of Brady violations might have made the need for further
training obvious. Bernard had cited thirteen cases where
Brady violations occurred over the past fifteen years
(given the thousands handled by the Orleans Parish Dis-
trict Attorney's office during that time) was not enough
to make the need for training obvious.
We agree that there was no genuine issue of material
fact as to the existence of a policy of inadequate training.
Although some evidence suggests that the District Attor-
ney’s office did not conduct optional training when Con-
nick first took office in 1974, and some of the attorneys
may not have been as attuned to Brady as they should be,
24a
the evidence is a far cry from suggesting deliberate indif-
ference within the District Attorney's office to training
and Brady issues. Connick testified that the relief on the
experience of the people who had worked for the former
district attorney and of several ex-assistant U.S. Attor-
neys that he hired. He relied on his assistants’ integrity
and professionalism in making decisions about what
materials a defendant was entitled to receive. Connick
testified that he expects his attorneys to comply with
discovery requirements and would fire any assistant who
intentionally withheld exculpatory material to which the
defendant was entitled. His assistants attested to the fact
that it was the policy of the office to comply with Brady.
The evidence supporting an issue of inadequate training,
raised by Bernard, is simply not enough to support the
more onerous issue of a policy of deliberate indifference
toward the training of Assistant District Attorneys.
Finally, although Bernard did not specifically allege
an unwritten “custom or usage” in his Complaint, he
argued, in opposing summary judgment, that such a cus-
tom existed. He relied on the thirteen reported cases
showing Brady violations to show a widespread practice
so permanent and well settled that it constituted a custom
or usage. The court found that proof of thirteen cases of
misconduct over fifteen years was wholly inadequate to
raise a fact question as to the existence of such a custom.
The court’s conclusion is correct. Such a paucity of exam-
ples is insufficient to establish a custom. We affirm sum-
mary judgment for defendants in their official capacities.*
* Defendants argued below that they were entitled to Elev-
enth Amendment immunity in their official capacities as state
25a
C. Connick in his individual capacity.
The district court dismissed Bernard’s claim against
Connick in his individual capacity on the basis of abso-
lute prosecutorial immunity. Although Imbler held that a
prosecutor is immune from civil suit under § 1983 in
initiating and presenting the State’s case, the Court did
not consider whether the reasons which supported immu-
nity for a prosecutor’s role as an advocate also supported
immunity for those aspects of the prosecutor’s respon-
sibility as an administrator or investigative officer. 424
U.S. at 430-31. The Supreme Court recently held in Burns
v. Reed, ___ U.S. __, 111 S.Ct. 1934, 1939-45, 114 L.Ed.2d
547 (1991), that while a prosecutor enjoys absolute immu-
nity for his participation in a probable cause hearing, he
is not entitled to absolute iramunity for giving legal
advice to the police.
Bernard alleged that Connick failed to properly train
the assistants and actually instructed them not to turn
over Brady material. Although we do not resolve the
question, it would appear that the actions complained of
officials. The district court rejected that claim based on Mairena
v. Foti, 816 F.2d 1061, 1064 n. 1 (5th Cir. 1987), cert. denied, 484
U.S. 1005 (1988), citing Crane v. Texas, 766 F.2d 193, 194-95 (5th
Cir.), cert. denied, 474 U.S. 1020 (1985). These cases held that
district attorneys in Louisiana and Texas were not entitled to
Eleventh Amendment immunity because they were actually
local and not state officials. Defendants argue that more recent
Louisiana case law supports their immunity as state officials. In
any event, because Bernard failed to defeat defendants’ sum-
mary judgment motion based on official policy, we need not
reach this issue.
26a
do not fall within the District Attorney’s role as prosecu-
tor, but as administrator of his office. If so, it is likely that
the district court was incorrect in dismissing the suit
against Connick individually on the basis of Imbler.
Reluctantly, therefore, we must remand solely for the
court to explore further the possible liability of Connick
individually for failure to train Assistant District Attor-
neys. It is likely that this question is amendable to sum-
mary judgment based on the record developed for the
official capacity suit, but because the district court dis-
missed the individual defendants, Bernard had no oppor-
tunity to respond to a summary judgment motion on
individual liability. It is also possible that Connick, while
not necessarily entitled to absolute immunity, will find a
defense of qualified immunity available. Ryland v. Shapiro,
708 F.2d 967, 975-76 (5th Cir. 1983).
CONCLUSION
For these reasons, the judgment of the district court
is AFFIRMED with respect to all defendants sued in their
official capacities and the former Assistant District Attor-
neys sued in their individual capacities, but it is
REVERSED and REMANDED with respect to District
Attorney Connick’s liability in his individual capacity.
27a
Filed: 10/06/92
Date of Entry: 10/06/92
Loretta-G. Whyte, Clerk
MINUTE ENTRY
BEER, J.
September 28, 1992
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ERROL BERNARD CIVIL ACTION
VERSUS NO. 89-4916
HARRY CONNICK, ET AL SECTION M
The Court heard defendant’s Motion to Dismiss or
alternatively for Summary Judgment on September 16,
1992. For the following reasons, defendant’s motion is
granted. -
I. BACKGROUND
On April 18, 1975, plaintiff Bernard shot and killed
Vernon Joseph in New Orleans. After several eyewit-
nesses identified the plaintiff as the man who shot Jos-
eph, he was arrested and indicted. Plaintiff then was
convicted of second degree murder and sentenced to life
imprisonment. In 1988, the plaintitf was granted a new
trial on the grounds that the state had failed to disclose a
police report containing exculpatory evidence to which
plaintiff was entitled under Brady. Plaintiff then entered
an Alford plea of guilty to the charge of manslaughter,
was sentenced to 21 years, and was released for time
served.
28a
In 1989, plaintiff filed a 1983 action against District
Attorney Harry Connick and four former Assistant Dis-
trict Attorneys in both their official and individual capac-
ities for violating his rights under Brady. In April of 1991,
this court dismissed all defendants in their individual
capacities based on prosecutorial immunity, and in their
official capacities based on the lack of a custom or policy
in the office to withhold Brady information. Subsequently,
in January of this year, the Fifth Circuit affirmed this
ruling as to all defendants in their official capacities and
as to the Assistant District Attorneys in their individual
capacities, but remanded the case as to Defendant Con-
nick in his individual capacity. Defendant Connick herein
has filed a Motion to Dismiss and alternatively for Sum-
mary Judgment.
Il. LAW AND ANALYSIS
On appeal of this matter, the Fifth Circuit remanded
the case “solely for the court to explore further the possi-
ble liability of Connick individually for failure to train
Assistant District Attorneys.” The defendant concedes in
the briefs that the training of assistants constitutes an
administrative rather than a prosecutorial function, and
that defendant is not entitled to absolute immunity as to
that allegation. Because the training of assistants does fall
outside of the prosecutor’s quasi-judicial role, absolute
immunity does not apply. Marrero v. City of Hiaieah, 625
F.2d 499, 510 (5th Cir. 1980), cert. denied, 450 U.S. 913, 101
S.Ct. 1353 (1981).
Defendant is entitled to qualified immunity in the
performance of discretionary functions, like the training
29a
of assistants. Harlow v. Fitzgerald, 457 U.S. 800, 819, 102
S.Ct. 2727, 2738 (1982). Qualified immunity shields offi-
cials “from liability for civil damages insofar as their
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would
have known.” Id. The Supreme Court first recognized the
right of a criminal defendant to all exculpatory material
in the possession of the prosecution in Brady v. Maryland,
383 U.S. 83, 83 S.Ct. 1194 (1963). However, in 1975 and
1976, when this incident occurred, the Brady doctrine was
not yet fully developed, and a reasonable prosecutor
might well have been unaware of ‘he boundaries of the
defendant’s right. Given the uncertainty surrounding
Brady at the time of the alleged violation, the court finds
that defendant is protected by qualified immunity in this
case.
Based on the undisputed material facts presented,
defendant would also be entitled to judgment as a matter
of law on the failure to train allegation. “[T]he inade-
quacy of [employee] training may serve as a basis for
§ 1983 liability only where the failure to train amounts to
deliberate indifference to the rights of persons with
whom the police come into contact.” Canton v. Harris, 109
S.Ct. 1197, 1204 (1989). As discussed in the court's origi-
nal minute entry on this issue, plaintiff has offered no
evidence to even suggest that defendant's failure to ade-
quately train assistants was a matter of “deliberate indif-
ference” to plaintiff's constitutional rights. No factual
issue has been presented which would warrant sending
this issue to the jury.
30a
Il. CONCLUSION
It is hereby ORDERED, ADJUDGED and DECREED
that defendant’s motion is GRANTED.
Counsel for defendant is requested to submit a judg-
ment consistent with this minute entry.
s/ Peter Beer
United States District Judge
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.