The Supreme Court’s Unfortunate Narrowing of the Section 1983 Remedy for Brady Violations

Editor’s Note: Some parts of this article build upon New York Law Journal columns written by Professor Schwartz: Section 1983 Brady Claims, N.Y.L.J., April 18, 2008 at 3; Supreme Court Overturns $14 Million Verdict for Wrongful Conviction, N.Y.L.J., June 15, 2011 at 3; Wrongful Conviction Claim Barred by Prosecutorial Immunity, N.Y.L.J., June 16, 2009 at 3. This article is an original work and substantially modifies, expands, and updates the material in these columns.

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The Civil Rights Act of 1871, 42 U.S.C. § 1983, is a vital part of American law. It authorizes individuals to enforce their constitutional rights against state and local officials and municipalities. Section 1983 is designed to compensate and deter constitutional violations under color of state law1 by authorizing recovery of both compensatory2 and punitive damages.3 A claimed violation of due process rights guaranteed by Brady v. Maryland4 by state or local authorities may gave rise to a claim for money damages under § 1983.

In Imbler v. Pachtman5 the Supreme Court observed that holding a prosecutor immune from § 1983 liability “does not leave the public powerless” to punish and deter constitutional violations by prosecutors because prosecutors are subject “to professional discipline by an association of his peers.”6 Nevertheless, study after study and report after report supports the harsh reality that prosecutors are very rarely subject to professional discipline, either internally within district attorney’s offices or externally by bar disciplinary committee, even for flagrant misconduct.7 

This reality makes the availability of a § 1983 damages remedy for Brady violations all the more inoperative. Unfortunately, a series of Supreme Court decisions has sharply limited the availability of § 1983 to vindicate Brady rights. In Heck v. Humphrey8 the Court held that a § 1983 damages claim challenging a conviction or sentence is not cognizable unless and until the conviction or sentence is overturned. In Van de Kamp v. Goldstein,9 the Court granted supervisory prosecutors charged with Brady violations absolute immunity from § 1983 monetary liability. And, Connick v. Thompson10 imposed very stringent standards for imposing § 1983 municipal liability for Brady violations. The Court in Van de Kamp v. Goldstein and Connick v. Thompson rejected the§ 1983 Brady claims even though the plaintiffs were victims of wrongful convictions resulting in lengthy terms of imprisonment.11 The Supreme Court has decided these issues on a case-by-case basis without considering their overall impact on the enforcement of Brady under § 1983. The impact of these Supreme Court decisions, however, is far greater than the sum of their parts. My major purpose here is to do what the Supreme Court has failed to do, namely, analyze these Supreme Court decisions in a cohesive manner.

1. The Brady Due Process Right — A Quick Overview

The Supreme Court in Brady v. Maryland12 held that a criminal defendant has a due process right to the prosecutor’s disclosure of favorable material. This right is so vital to ensuring that criminal defendants have a fair trial that a prosecutor’s suppression of evidence favorable to the accused as to either guilt or sentencing violates due process “irrespective of the good faith or bad faith of the prosecution.”13 The duty to disclose may exist even when the defendant failed to request the favorable material.14 And, it is well established that the criminal defendant’s right to favorable material includes impeachment material.15 These principles reflect the fact that the purpose of the due process right to exculpatory material “is not punishment of society for misdeeds of a prosecutor but avoidance of an unfair trial to the accused.”16 What is critical is the “character of the evidence, not the character of the prosecutor.”17 

A Brady violation encompasses three elements: (1) the “evidence at issue must be favorable to the accused, either because it is exculpatory or because it is impeaching; (2) that evidence must have been suppressed by the State, either willfully or inadvertently; and (3) prejudice must have ensued.”18 Suppressed evidence is considered “material” and prejudice results from suppression “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different” as to either guilt or punishment.19 Justice Thurgood Marshall suggested that this materiality element may lead some prosecutors to suppress exculpatory material and “gamble, to play the odds, and to take a chance that evidence will turn out not to have been potentially dispositive. …”20 Although it is unclear how often prosecutors are willing to take this gamble, the reality is that habeas petitioners who assert Brady claims frequently find it difficult to overcome the materiality prong.

The Supreme Court has never definitively held whether Brady is based on substantive or procedural due process. Nevertheless, it seems clear that it is a procedural due process aspect of the criminal defendant’s right to a fair trial.21 

2. Assertion of Brady Claims Under § 1983 — In General

The Supreme Court has identified two essential elements of a § 1983 claim for relief: (1) a deprivation of a federally protected right (2) by a person who acted under color of state law.22 Because a claimed violation of due process Brady rights by state or local authorities clearly satisfies these two elements, circuit court decisions consistently recognize that a Brady violation may give rise to a § 1983 claim for relief.23 

The two elements of the § 1983 claim for relief identified by the U.S. Supreme Court do not nearly begin to describe the various requirements a § 1983 plaintiff may have to satisfy, and defenses she may have to overcome, in order to obtain monetary relief. These include proximate causation,24 the rule against respondeat superior liability,25 the various absolute immunities, including prosecutorial26 and witness27 immunity, and qualified immunity.28 Prosecutorial immunity and the § 1983 rule against respondeat superior liability, and that rule’s concomitant principles of municipal liability, have been especially powerful impediments to recovery on § 1983 Brady claims for damages. Prosecutorial immunity and municipal liability are analyzed in detail later in this article.

Another substantial impediment to the successful litigation of § 1983 Brady claims is the doctrine of Heck v. Humphrey.29 The Supreme Court in Heck held that a § 1983 damages claim that necessarily implicates the validity of the plaintiff’s conviction or sentence is not cognizable unless and until the conviction or sentence has been overturned, either on appeal, in a collateral proceeding, or by executive order.30 The Heck doctrine is more onerous than an exhaustion requirement because, unlike an exhaustion rule that a claimant may satisfy by pursuing available remedies, a § 1983 plaintiff subject to Heck who pursued available remedies but who did not succeed in getting his conviction, or sentences, as the case may be, overturned will be Heck barred from asserting the § 1983 claim.

Because one of the elements of a Brady claim is a showing of a reasonable probability that the result would have been different had the favorable material not been suppressed, a § 1983 Brady claim necessarily challenges the validity of the conviction (or sentence), and is thus subject to Heck.31 The Heck doctrine is thus a highly significant obstacle to successful litigation of §1983 Brady claims.

But even if a § 1983 plaintiff is able to overcome Heck by succeeding in overturning her conviction (or sentence), for example, in a habeas corpus proceeding, this hardly ensures success on the § 1983 Brady claim. The plaintiff will still likely face one or more of the other defenses, including prosecutorial immunity, qualified immunity, and the rule against respondeat superior liability.

3. § 1983 Brady Claims Against Prosecutors

Prosecutors sued for damages under § 1983 are absolutely immune for actions “intimately associated with the judicial phase of the criminal process,” including the decision whether to prosecute and the presentment of the state’s case.32 Because the trial prosecutor’s decisions concerning disclosure of exculpatory material are clearly part of the prosecutor’s advocacy function, a § 1983 claim for damages against a trial prosecutor based upon a Brady violation will be barred by absolute prosecutorial immunity.33 Furthermore, because prosecutorial immunity applies regardless of the prosecutor’s motives,34 the immunity protects even a trial prosecutor who deliberately or in bad faith withheld exculpatory material from the defense.35 

Absolute immunity does not shield all activities undertaken by a prosecutor. The Supreme Court applies a functional approach to immunities, under which an official’s entitlement to absolute as opposed to qualified immunity depends on the nature of the function carried out, rather than upon the official’s title.36 Thus, an official may be protected by an absolute immunity for carrying out one function and qualified immunity for another function. Absolute prosecutorial immunity encompasses a prosecutor’s advocacy duties in order to allow prosecutors to carry them out independently, without looking over their shoulders fearing claims for money damages.37 Until fairly recently, it seemed safe to say that under the functional approach absolute prosecutorial immunity did not apply to a prosecutor’s executive or administrative functions.38 This, however, is no longer so. In its 2009 decision in Van de Kamp v. Goldstein39 the Supreme Court, in a unanimous opinion written by Justice Stephen G. Breyer, held that prosecutorial immunity defeated § 1983 claims that the district attorney of Los Angeles County and his chief deputy failed to adequately train and supervise prosecutors in their office on their Brady obligations concerning impeachment material.

Thomas Goldstein alleged in his §1983 federal court complaint that the Los Angeles prosecutors’ failure to disclose vital impeachment evidence led to his wrongful state court homicide conviction. The complaint alleged that Goldstein was convicted of murder in 1980, “that his conviction depended in critical part upon the testimony of [an individual ironically named] Edward Floyd Fink, a jailhouse informant; that Fink’s testimony was unreliable, indeed false; that Fink had previously received reduced sentences for providing prosecutors with favorable testimony in other cases; that at least some prosecutors in the Los Angeles County District Attorney’s Office knew about the favorable treatment; that the office had not provided Goldstein’s attorney with that information; and that … the prosecution’s failure to provide Goldstein’s attorney with this potential impeachment information had led to his erroneous conviction.”40 These allegations were substantiated by a decision in Goldstein’s previously filed federal habeas corpus proceeding that Fink did not give truthful testimony, and that if the prosecution had told Goldstein’s lawyer that “Fink had received favorable rewards in return for favorable testimony it might have made a difference.”41 The habeas corpus court ordered the state to either grant Goldstein a new trial or to release him. After the circuit court affirmed the decision of the district court in the habeas corpus proceeding, the state decided to release Goldstein, who had already served 24 years of his sentence.42 

In his §1983 action Goldstein asserted that the prosecutors’ failure to turn over Giglio43 exculpatory impeachment material violated his due process Brady rights, and that this constitutional violation was attributable to the failures of the Los Angeles district attorney and his chief deputy (1) to adequately train and supervise their prosecutors concerning Brady impeachment material, and (2) to establish an information system within the district attorney’s office regarding impeachment material concerning jailhouse informants. Goldstein’s lawyers apparently knew all too well that because Brady obligations are part of a prosecutor’s advocacy functions, a §1983 claim against a prosecutor who tried the criminal case based upon her failure to turn over Brady materials would be doomed for failure by prosecutorial immunity.44 To avoid dismissal based upon prosecutorial immunity, plaintiffs’ lawyers sometimes seek to hold a police officer liable under § 1983 for failing to disclose exculpatory material to the prosecutor.45 But what if, as in Van de Kamp v. Goldstein, the Brady violation cannot be attributable to a police officer? Goldstein’s counsel attempted a different strategy, namely, assertion of §1983 claims against supervising district attorneys, namely, the Los Angeles district attorney and his chief deputy. Then, in response to the defendants’ assertion of prosecutorial immunity, Goldstein’s counsel argued that the alleged wrongdoings of the supervisors were administrative rather than advocacy and thus not within absolute prosecutorial immunity.

This strategy was successful in the lower courts. Both the district court and Ninth Circuit held that absolute immunity did not defeat Goldstein’s §1983 claims because the complaint alleged administrative rather than advocacy actions by the defendants.46 But the Supreme Court’s granting defendants’ petition for certiorari placed the Ninth Circuit’s decision in serious jeopardy. After all, Goldstein’s formulation of his §1983 claims against the district attorney and his deputy could easily be viewed as a rather transparent attempt to circumvent prosecutorial immunity. Sure enough, at the oral argument Chief Justice Roberts told Goldstein’s attorney that “all you’re doing is circumventing the absolute immunity we recognized at trial,” and accused him of trying to “get around” absolute immunity.47 It seemed likely that the Supreme Court would reverse, but it was unclear on what basis. After all, Goldstein was challenging the prosecutors’ administrative actions, or perhaps more accurately, inactions, and the Supreme Court had never before applied absolute prosecutorial immunity to a prosecutor’s administrative functions.

The Court in Van de Kamp acknowledged that prosecutorial immunity does not extend to a prosecutor’s conduct not intimately related to the judicial process. The Court stated:

In the years since Imbler v. Pachtman, [424 U.S. 409 (1976)], we have held that absolute immunity applies when a prosecutor prepares to initiate a judicial proceeding [Burns v. Reed, 500 U.S.478, 492 (1991)], or appears in court to present evidence in support of a search warrant application [Kalina v. Fletcher, 522 U.S. 118 (1997)], [but not] when a prosecutor gives advice to police during a criminal investigation, Burns, supra, at 496, when the prosecutor makes statements to the press, Buckley v. Fitzsimmons, 509 U.S. 259, 277 … (1993), or when a prosecutor acts as a complaining witness in support of a warrant application, Kalina, supra, at 132 (Scalia, J., concurring). [Van de Kamp v. Goldstein], unlike these earlier cases, requires us to consider how immunity applies where a prosecutor is engaged in certain administrative activities.48 

The Supreme Court agreed with Goldstein that he attacked the district attorney’s “office’s administrative procedures.”49 Nevertheless, and even assuming that the district attorney and his chief deputy had “certain” due process obligations “as to training, supervision, or information-system management[,]” the Court held “that prosecutors involved in such supervision or training or information-system management enjoy absolute immunity from the kind of legal claims at issue here.”50 Prosecutorial immunity was applicable because the administrative actions Goldstein attacked were closely connected to his criminal prosecution. The Court explained:

Here, unlike other claims related to administrative decisions, an individual prosecutor’s error in the plaintiff’s specific criminal trial constitutes an essential element of the plaintiff’s claim. The administrative obligations at issue here are thus unlike administrative duties concerning, for example, workplace hiring, payroll administration, the maintenance of physical facilities, and the like. Moreover, the types of activities on which Goldstein’s claims focus necessarily require legal knowledge and the exercise of related discretion, e.g., in determining what information should be included in the training or the supervision or the information-system management.51 

The Court supported its reasoning with a hypothetical example of a claim against a supervisory prosecutor clearly covered by prosecutorial immunity: Assume that Goldstein asserted a claim for damages not only against the trial prosecutor, but also against a supervisory prosecutor on the ground that the supervisor should have turned over impeachment material to Goldstein. The claim against the supervisor would contest trial preparation intimately associated with the judicial process within the heart of absolute prosecutorial immunity. The only difference between a trial prosecutor’s suppression of favorable material and the hypothetical is

that in our hypothetical case, a prosecutorial supervisor … might himself be liable for damages instead of the trial prosecutor. But we cannot find that difference (in the pattern of liability among prosecutors within a single office) to be critical. Decisions about indictment or trial prosecution will often involve more than one prosecutor within an office.52 

In the Court’s view, the fact that in Van de Kamp the defendants’ general supervisory, training and information management actions were at issue, rather than supervision of a particular prosecution, as in the hypothetical, was not significant. The Court reasoned:

That difference does not preclude an intimate connection between prosecutorial activity and the trial process. The management tasks at issue … concern how and when to make impeachment information available at a trial. They are thereby directly connected with the prosecutor’s basic trial advocacy duties. And, in terms of Imbler’s functional concerns, a suit charging that a supervisor made a mistake directly related to a particular trial … and a suit charging that a supervisor trained and supervised inadequately, … would seem very much alike.53 

Further, the Court said:

[T]o permit this suit to go forward would create practical anomalies. A trial prosecutor would remain immune, even for intentionally failing to turn over, say Giglio impeachment material; but her supervisor might be liable for negligent training or supervision. Small prosecution offices where supervisors can personally participate in all of the cases would likewise remain immune from prosecution; but large offices, making use of more general office-wide supervision and training, would not.54  

The Court had no trouble seeing through the strategy adopted by Goldstein’s attorneys. It made clear that Section 1983 plaintiffs’ attorneys will not be allowed to work an end run around prosecutorial immunity, because “[m]ost important[,] the ease with which a plaintiff could restyle a complaint charging a trial failure so that it becomes a complaint charging a failure of training or supervision would eviscerate Imbler.”55  

The Court’s rationale for applying absolute immunity to the training and supervision claims also applied to the information system claim, even if that claim was even more “purely administrative” in nature.56 “Deciding what to include and what not to include in an information system is little different from making similar decisions in respect to training[,]” in that each process “requires knowledge of the law.”57 This type of information system claim would require courts to determine whether there is a need for an information system, and if so, what kind of system, “and whether an appropriate system would have included Giglio-related information about one particular kind of trial informant.”58 These decisions, too, are intimately associated with the judicial phase of the criminal process. “Consequently, where a § 1983 plaintiff claims that a prosecutor’s management of a trial-related information system is responsible for a constitutional error at his or her particular trial, the prosecutor responsible for the system enjoys absolute immunity just as would the prosecutor who handled the particular trial itself.”59  

The upshot of Van de Kamp is that characterization of a supervisory prosecutor’s actions relating to Brady material as “administrative” will not negate prosecutorial immunity. This is the first time that the Supreme Court characterized a prosecutor’s conduct as “administrative,” yet applied absolute immunity.60 The Supreme Court’s decision makes it crystal clearer that a § 1983 Brady claim against a prosecutor, whether trial or supervisory, is doomed for failure under absolute prosecutorial immunity. Recent circuit court decisions have extended absolute prosecutorial immunity even to prosecutors’ actions in post-conviction stages.61 Given the potency of prosecutorial immunity to Brady claims against prosecutors, the question thus arises whether a § 1983 Brady claim may be asserted against a police or other law enforcement officer for failing to disclose exculpatory material to the prosecutor.

4. § 1983 Brady Claims Against Police Officers

The government’s Brady obligations extend to favorable material in the possession of the police. Because the Brady rule encompasses “evidence known only to police investigators and not to the prosecutor,”62 to comply with Brady the “prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf … including the police.”63 

It is well established that a § 1983 Brady due process claim may be asserted against a law enforcement officer based on the officer’s failure to disclose favorable material to the prosecutor.64 Unlike prosecutors who enjoy absolute immunity from § 1983 liability based upon claimed Brady violations, the liability of police officers sued under § 1983 for Brady violations is governed by qualified immunity.65 The essential issue on qualified immunity is whether the defendant violated clearly established federal law.66 We will have more to say about qualified immunity later in this section.

Section 1983 Brady claims against police and other law enforcement officers for failure to disclose exculpatory material to the prosecutor present a number of potentially sticky issues. It will be recalled that in Brady v. Maryland, the Supreme Court held that in the context of a criminal prosecution, a prosecutor’s failure to disclose favorable material to the defense violates due process regardless of the prosecutor’s good or bad faith.67 Thus, even a prosecutor’s negligence or inadvertence can violate a criminal defendant’s due process Brady rights. However, in the context of a § 1983 claim for relief, the Supreme Court in Daniels v. Williams68 held that an official’s negligence cannot support a § 1983 due process claim.69 This means that § 1983 procedural and substantive due process claims must be premised upon some type of intentional, deliberate, or reckless official conduct.70 

There is a tension between the decisions in Brady and Daniels, and it is not obvious how it should be resolved. When the Fourth Circuit confronted this issue in Jean v. Collins,71 the circuit court judges, sitting en banc, split 5-5 on the issue. Lesly Jean’s federal petition for habeas corpus was granted based on a Brady violation. Jean then sought damages under § 1983 against the police officer who negligently failed to disclose the information to the prosecutor. The district court dismissed the § 1983 Brady claim and the circuit court by an equally divided vote upheld the dismissal. The concurring opinion found that, in the context of a § 1983 claim, police obligations under Brady are not the same as those of prosecutors, and that a police officer violates due process only when she acts in bad faith, that is, the officer “intentionally withheld the evidence for the purpose of depriving the plaintiff of the use of that evidence during his criminal trial.”72 The rationale for this view is that the police officer’s obligation to the prosecutor is not identical and should not be analyzed in the same manner as the prosecutor’s duty to the criminal defendant. The police officer’s job is to gather evidence, while the prosecutor’s job is to evaluate it. By contrast, the five dissenting circuit judges in Jean v. Collins viewed the due process violation by the police as flowing directly from the Brady line of decisions, and saw no basis for distinguishing between the obligation of prosecutors and of the police to disclose favorable evidence.

The great weight of circuit court authority agrees with the concurrence in Jean v. Collins that the “no fault” Brady standard does not apply to § 1983 Brady damages claims. For example, in Porter v. White,73 the Eleventh Circuit held that a law enforcement officer’s negligent or inadvertent failure to turn over Brady material to the prosecution does not give rise to a § 1983 due process claim. The circuit court found that the “no fault” Brady obligation imposed on prosecutors in criminal prosecutions does not govern § 1983 Brady claims against law enforcement officers. Rather, these § 1983 due process claims are governed by the decision in Daniels v. Williams that a law enforcement officer’s negligence is insufficient to support a § 1983 due process claim. The Porter court, however, did not decide whether a Brady claim against a law enforcement officer can be based on something less than intentional conduct, such as recklessness or gross negligence.74 

The circuit courts disagree over the level of culpability necessary to established a Brady violation for § 1983 purposes.75 For example, in Villasana v. Wilhoit,76 the Eighth Circuit held that only a prosecutor has an absolute due process duty to disclose exculpatory material, and that a § 1983 due process Brady claim against a police officer requires a showing that the officer intentionally or in bad faith failed to disclose exculpatory material to the prosecutor.77 The circuit court acknowledged that it is “logical to impose Brady’s absolute duty on the government official who will present the state’s case at trial, who can be expected to gather material evidence from law enforcement agencies, and who is in the best position to evaluate whether evidence must be disclosed because it is materially favorable to the defense,” but recognized that “the prosecutor has absolute immunity from Brady damages claims under § 1983.”78 But the court found that extending this absolute duty “to any law enforcement officer who was part of the prosecutor’s ‘team,’” including police officers and crime laboratory technicians, is “unsound,”79 and that bad faith governs these Brady claims. Therefore, “Brady ensures that the [criminal] defendant will obtain relief from a conviction tainted by the state’s nondisclosure of materially favorable evidence, regardless of fault, but the recovery of § 1983 damages requires proof that a law enforcement officer other than the prosecutor intended to deprive the defendant of a fair trial.”80 

By contrast, both the Seventh and Ninth Circuits, while agreeing that negligence does not support a § 1983 Brady claim, do not require a showing of bad faith.81 Rather those circuits require a showing of deliberate or reckless indifference. For example, the Ninth Circuit held that “a § 1983 plaintiff must show that police officers acted with deliberate indifference to or reckless disregard for an accused’s rights or for the truth in withholding evidence from prosecutors.”82 

Section 1983 Brady claims against police officers have given rise to a number of other constitutional issues. Because Brady is a trial right, the great weight of lower court authority holds that a criminal defendant who did not have a criminal trial because the criminal charges were dropped cannot base a § 1983 claim on a Brady violation.83 In Taylor v. Waters,84 the Fourth Circuit ruled that an investigator’s failure to disclose exculpatory evidence to the prosecution did not violate due process because the criminal charges against the plaintiff were ultimately declared nolle prosequi.85 The Tenth Circuit in Morgan v. Gerz86 held that because Brady is grounded on the due process right to a fair trial, a criminal defendant who was acquitted cannot be said to have been denied a fair trial. In other words, a criminal defendant who was not convicted cannot satisfy the materiality prong of demonstrating a reasonable probability that if the exculpatory material had been disclosed the result would have been different. Although the Seventh Circuit in Whitlock v. Brueggemann87 suggested that Brady does not apply to a criminal defendant who was acquitted in the criminal trial, it applied Brady in Whitlock because the § 1983 plaintiffs were convicted after trials and only years later had their convictions set aside because of constitutional violations.88 

In Steidl v. Fermon,89 the Seventh Circuit held that, although Brady is a trial right, a § 1983 Brady claim against police officers may be based upon their failure to disclose exculpatory material known to the officers at the time of trial, which they failed to disclose during post-conviction proceedings. The court held that “[f]or evidence known to the state at the time of the trial, the duty to disclose extends throughout the legal proceedings that may affect either guilt or punishment, including post-conviction proceedings.”90 Therefore, police officers may be liable under § 1983 for failure to disclose exculpatory material to the prosecutor, even during post-conviction proceedings.

The Seventh Circuit in Whitlock v. Brueggmann91 recently reaffirmed Steidl v. Fermon. The court in Whitlock found that the Supreme Court’s holding in District Attorney’s Office v. Osborne92 — that Brady did not apply to a claimed due process right of post-conviction access to evidence for the purpose of DNA testing — did not undercut Steidl. The court in Whitlock found that while “[c]ritically, the evidence that Osborne sought was not exculpatory evidence that had been in existence at the time of his original trial[,]”93 Brady continues to apply post-trial “to an assertion that one did not receive a fair trial because of the concealment of exculpatory evidence known and in existence at the time of that trial.”94 

Another § 1983 Brady complication arises from the fact that a Brady violation requires a showing that there is a “reasonable probability” that if the favorable material had been disclosed, the result would have been different. This is the “third” element of a Brady claim, frequently referred to as the “materiality” element. In a habeas corpus proceeding, the materiality issue is an issue of law for the court.95 It is unclear, however, whether in a § 1983 suit tried to a jury the issue should be decided by the court as a matter of law or by the jury.

There is precious little law on the issue, most likely because the confluence of Heck, prosecutorial immunity, and principles of municipal liability prevent the great majority of § 1983 Brady claims from getting to a jury.

In Smith v. Holtz,96 the Third Circuit held that plaintiff’s § 1983 Brady claims against, inter alia, state investigators, was without merit because the jury determined on special interrogatory that the evidence in question was not exculpatory, material evidence. The district court entered judgment in favor of the § 1983 defendants. On appeal the circuit court agreed with plaintiff that the evidence in question was exculpatory, but rejected plaintiff’s argument that the materiality issue should not have been submitted to the jury, noting that plaintiff’s argument “elevates form over substance” because the district judge expressly stated that even if the issue had been left to the district court, it would have found that the evidence was not material.97 Smith thus does not definitively resolve whether the materiality issue is for the court or the jury.98 


In addition to difficult constitutional issues, § 1983 Brady claims against police officers can present difficult causation issues. The plaintiff must show not only a Brady violation, but also “by a preponderance of the evidence a causal link between the Brady violation and his conviction.”99 Causation is thus another potential obstacle facing the § 1983 plaintiff.

In general, common law proximate tort principles apply in § 1983 actions.100 But the issue is complicated by the fact that constitutional Brady principles must be considered in determining the applicable causation principles. This was the lesson of the First Circuit’s recent decision in Drumgold v. Callahan,101 in which causation proved to be the undoing of Shawn Drumgold’s § 1983 Brady claim.

Drumgold was convicted of murder and served 14 years of his life sentence before his conviction was vacated because several Boston police officers, including homicide detective Timothy Callahan, were found to have withheld favorable evidence. Drumgold’s § 1983 Brady claim against Callahan was tried to a jury in federal district court. The jury returned a verdict for Drumgold and awarded him $14 million in damages, but the First Circuit vacated the award because it found that the district court’s causation instruction clashed with Brady principles.

The district court’s causation instruction informed the jury about the concept of proximate cause and, specifically, instructed the jury that Callahan’s “‘conduct need not be the only cause nor the latest cause [of Drumgold’s conviction], it is sufficient if it concurs with some other cause acting at the same time which in combination with it contributed to Shawn Drumgold’s conviction.’”102 The circuit court found that this part of the instruction clashed with the Brady materiality prong requiring the § 1983 claimant to show a reasonable probability that if not for the suppression of favorable material the result would have been different.

The circuit court stressed that in § 1983 actions the district court must apply only those tort causation principles that are compatible with the underlying constitutional right.103 The district court’s instruction that there may be concurrent causes for the plaintiff’s injury was incompatible with the Brady materiality requirement that there be a reasonable probability that the plaintiff would not have been convicted but for the defendant officer’s withholding of exculpatory evidence. It is thus not sufficient that suppression of evidence was merely one cause of the wrongful conviction. In sum, a district court should direct the jury to determine whether plaintiff has proven by a preponderance of the evidence that he would not have been convicted “but for” the officer’s wrongful withholding of exculpatory evidence.”104 

Qualified Immunity

Even if the § 1983 plaintiff establishes a violation of Brady due process rights, to recover money damages against a law enforcement officer she will have to overcome the officer’s qualified immunity defense. Qualified immunity protects a law enforcement officer from monetary liability as long as her “‘conduct does not violate clearly established [federal] statutory or constitutional rights of which a reasonable person would have known.’”105 Thus, the critical qualified immunity issue is whether the officer violated the plaintiff’s clearly established Brady rights.

If the officer violated the § 1983 plaintiff’s clearly established Brady rights, her qualified immunity defense will be rejected.106 On the other hand, the officer will prevail under qualified immunity when the law governing the particular Brady violation was not clearly established. There are in fact many nuances concerning Brady that may generate difficult questions in particular circumstances, for example, whether Brady obligations extended to inadmissible evidence, the required timing of disclosure, the significance of a general or specific request for disclosure, and the applicability of Brady when the criminal defendant pleads guilty.107 In addition, in some cases it may be unclear whether suppressed favorable evidence was material, that is, whether there is a reasonable probability that the result would have been different if the evidence had been disclosed. The Supreme Court’s qualified immunity jurisprudence holds that whether the § 1983 plaintiff’s constitutional rights were clearly established must be determined, not by reference to general or abstract principles of constitutional law, such as “the right to due process,” but in a much more particularized sense.108 Thus, if the defendant officer did not violate clearly established Brady obligations, she will be protected from liability by qualified immunity.109 

5. § 1983 Brady Municipal Liability Claims

Because there is no respondeat superior liability under § 1983, a municipality may be held liable only for its own wrongs, that is, for action taken by a municipal employee or employees pursuant to a municipal policy or practice. Therefore, a § 1983 claim against a municipality may be premised upon a Brady violation only if it can be demonstrated that the violation of plaintiff’s Brady rights was attributable to enforcement of a municipal policy or practice.110 

Unlike prosecutors who enjoy absolute immunity and law enforcement officers who are protected by qualified immunity, municipalities sued under § 1983 enjoy neither absolute nor qualified immunity.111 On the other hand, Monell v. Department of Social Services112 established that municipalities are not subject to § 1983 liability on the basis of respondeat superior, but only when the violation of the plaintiff’s federal rights is attributable to enforcement of a municipal policy or practice. A municipality’s deliberately indifferent training may constitute a policy that may give rise to § 1983 liability when a specific deficiency in training is shown to be closely linked to the deprivation of the plaintiff’s federal rights.113 

The Supreme Court’s recent decision in Connick v. Thompson114imposed serious obstacles in the path of wrongful conviction victims who seek to establish § 1983 municipal liability based upon the inadequate training of assistant district attorneys concerning their Brady obligations. The Court in Connick overturned a $14 million verdict under § 1983 in favor of John Thompson against the New Orleans District Attorney’s Office. Thompson had been convicted of murder and spent 18 years in prison, including 14 on death row, for a crime he did not commit, in violation of his constitutionally protected Brady rights. The Court in Connick held, 5-4, that a municipality’s district attorney’s office cannot be held liable under §1983 based upon failure to adequately train assistant district attorneys about their due process Brady obligations to turn over exculpatory material to the defense unless the plaintiff demonstrates a pattern of Brady violations by assistant district attorneys. Therefore, § 1983 municipal liability premised upon inadequate training cannot be based upon a single Brady violation by assistant district attorneys.

Splitting along strictly ideological lines, Justice Clarence Thomas wrote the opinion for the Court, joined by Chief Justice John G. Roberts, Jr., and Justices Antonin Scalia, Anthony M. Kennedy and Samuel A. Alito, Jr. Justice Scalia filed a concurring opinion. Justice Ruth Bader Ginsburg wrote a forceful dissent, joined by Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan.

In 1985, John Thompson was charged in New Orleans with a homicide. “Publicity following the murder charge led the victims of an unrelated armed robbery to identify Thompson as their attacker[,]” and Thompson was charged with attempted armed robbery.115 A crime scene technician took a swatch of fabric stained with the robber’s blood from one of the robbery victim’s pants, and sent it to the crime laboratory. Two days before the robbery trial, ADA Whittaker received the crime lab report, which found that the perpetrator of the robbery had Type B blood. The ADA never had Thompson’s blood tested, did not know his blood type, and never disclosed the laboratory report to Thompson’s counsel. ADA Deegan, who also worked on the case, excluded the swatch from the evidence delivered to the courthouse property room. Nine years later, after Deegan learned of his terminal illness, he confessed to former ADA Riehlmann that he had suppressed the evidence. For five years after Deegan’s death, Riehlmann did not disclose the evidence. After Thompson discovered the laboratory report in 1999, Riehlmann revealed that Deegan, who had tried the robbery case with ADA Williams, “intentionally suppressed blood evidence” that exculpated Thompson.116 

Thompson was convicted of the armed robbery and, because of that conviction, chose not to testify on his own behalf in his trial a few weeks later for murder. In 1987, Thompson was convicted of murder and sentenced to death, spending 18 years in prison, including 14 years on death row. About a month before Thompson’s scheduled execution, his investigators discovered the undisclosed crime laboratory report. A state appeals court reversed Thompson’s armed robbery and murder convictions. The district attorney’s office retried Thompson for murder, and the jury found him not guilty.

Thompson filed a §1983 complaint in federal district court for damages against the Orleans Parish district attorney (and others) alleging, inter alia, that District Attorney Connick failed to train his prosecutors adequately about their Brady obligations. The jury awarded Thompson $14 million, and the Fifth Circuit sitting en banc affirmed by an equally divided court.117 The Supreme Court, however, reversed the judgment of the circuit court, holding that a district attorney’s office may not be held liable under § 1983 for failure to train based on a single Brady violation.118 

A municipal entity, such as the New Orleans District Attorney’s Office, may be held liable under § 1983 only when the violation of the plaintiff’s federally protected rights is attributable to the enforcement of a municipal policy or practice.119 In 1989, the Court in City of Canton v. Harris120 held that § 1983 municipal liability may be based on a policy of deliberately indifferent training that is the “moving force” of the violation of the plaintiff’s federally protected rights. The Court said that deliberate indifference requires the plaintiff to demonstrate a specific training deficiency and either (1) that “the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights,”121 e.g., training on police officer use of deadly force, or (2) a pattern of constitutional violations of which policy-making officials can be charged with knowledge.122 The Court in City of Canton stressed that the fault and causation standards for inadequate training claims are stringent, and that municipalities would be subjected to liability for inadequate training only in “limited circumstances.”123 City of Canton, however, did not spell out when a plaintiff must demonstrate a pattern of constitutional violations in order to prevail on an inadequate training claim. The Court in Board of County Comm’rs. of Bryan County v. Brown,124 in applying the City of Canton deliberate indifference standard to an inadequate hiring § 1983 municipal liability claim, stated that “ordinarily” deliberately indifferent training will be found only when there was a failure to train despite a pattern of violations.125 

In Connick v. Thompson, the Supreme Court reaffirmed that deliberately indifferent training may constitute a municipal policy justifying the imposition of § 1983 liability only in “limited circumstances,” and that deliberate indifference is a “‘stringent fault standard, requiring proof that a municipal actor disregarded a known or obvious consequence of his action.’”126 The Court expressed concern that “[a] municipality’s culpability for a deprivation of rights is at its most tenuous where a claim turns on a failure to train” because this theory of municipal liability comes perilously close to vicarious liability.127 The Court was concerned that a standard less stringent than deliberate indifference for a failure to train claim would result in “de facto” respondeat superior liability on municipalities.128 However, “[w]hen city policymakers are on actual or constructive notice that a particular omission in their training program causes city employees to violate citizens’ constitutional rights, the city may be deemed deliberately indifferent if the policymakers chose to retain that program.”129 

The critical question, therefore, was when do municipal policymakers have such actual or constructive notice that their failure to implement additional or different training constitutes deliberate indifference. The Court in Connick v. Thompson read City of Canton and Bryan County as having established that a “pattern of similar constitutional violations by untrained employees is ‘ordinarily necessary’ to demonstrate deliberate indifference for purposes of failure to train. … Without notice that a course of training is deficient in a particular respect, decision-makers can hardly be said to have deliberately chosen a training program that will cause violations of constitutional rights.”130 

The Court’s analysis in Connick raised two specific questions pertaining to Thompson’s § 1983 municipal liability claim: (1) did Thompson establish a pattern of similar constitutional violations?; and (2) if not, could Thompson’s inadequate training claim succeed without a pattern? On the first issue, the Court found that Thompson failed to establish a pattern of similar constitutional violations.

Although Louisiana courts overturned four convictions on Brady grounds prior to Thompson’s armed robbery trial,

[t]hose four reversals could not have put [District Attorney] Connick on notice that the office’s Brady training was inadequate with respect to the sort of Brady violation at issue here. None of those cases involved failure to disclose blood evidence, a crime lab report, or physical evidence of any kind. Because those incidents are not similar to the violation at issue here, they could not have put Connick on notice that specific training was necessary to avoid this constitutional violation.131 

Further, the fact that in Thompson’s robbery prosecution as many as four prosecutors “may have been responsible for the nondisclosure of the crime lab report and, according to [Thompson’s] allegations, withheld additional evidence in his armed robbery and murder trials,” did not take his case out of the “single incident” category.132 “[C]ontemporaneous or subsequent conduct cannot establish a pattern of [constitutional] violations that would provide ‘notice to the [municipality] and the opportunity to conform to constitutional dictates. …’”133 The Court thus effectively held that a “pattern” of constitutional violations means a series of prior violations similar to the violation in the case at hand.134 

On the second issue, the Court held as a matter of law that an inadequate training Brady claim against a district attorney’s office requires a showing of a pattern of constitutional violations. The Court in Connick acknowledged that City of Canton left open the possibility that in “narrow” circumstances a pattern of similar constitutional violations may not be necessary to show deliberate indifference and that a single incident may suffice,135 and reiterated the example articulated in City of Canton of the “obvious” need to train law enforcement officers in the constitutional limitations upon the use of deadly force. “Armed police must sometimes make split-second decisions with life-or-death consequences. There is no reason to assume that police academy applicants are familiar with the constitutional constraints on the use of deadly force. And, in the absence of training, there is no way for novice officers to obtain the legal knowledge they require. Under these circumstances there is an obvious need for some form of training.”136 

The Court found that by “stark contrast” to police officers, assistant district attorneys are law trained, normally law school graduates who are able to find, understand, and apply legal rules, may be required to satisfy continuing legal education requirements, train on the job often under the supervision of more experienced attorneys, and are bound by the rules of ethics to comply with Brady.137 “[A]ttorneys, unlike police officers, are equipped with the tools to find, interpret, and apply legal principles[,]”138 and, therefore, in the absence of a pattern of constitutional violations, a district attorney is entitled to rely on the prosecutors’ professional training and ethical obligations.

The fact that the prosecutors may not have been trained about particular Brady issues was too nuanced to support an inference of deliberate indifference.139 Further, the absence of formal training does not establish deliberate indifference because “failure-to-train liability is concerned with the substance of the training, not the particular instructional format.”140 And, “showing merely that additional training would have been helpful in making difficult decisions does not establish municipal liability.”141 

Prior to the Supreme Court’s decision in Connick v. Thompson, the leading circuit court decision governing § 1983 municipal liability claims based on inadequate Brady training claims was the Second Circuit’s decision in Walker v. City of New York.142 Following Walker’s approach to § 1983 Brady municipal liability inadequate training claims, the lower courts in Connick v. Thompson found deliberately indifferent training because of the “obviousness” of the need for additional training based “on [District Attorney] Connick’s awareness that (1) prosecutors would confront Brady issues while at the district attorney’s office; (2) inexperienced prosecutors were expected to understand Brady’s requirements; (3) Brady has gray areas that make for difficult choices, and (4) erroneous decisions regarding Brady evidence would result in constitutional violations.”143 The Supreme Court, however, found this four-fold formulation “insufficient” to satisfy the Court’s deliberate indifference standards on a § 1983 municipal liability claim based upon inadequate training of ADAs.144 “[T]hompson had to show that it was so predictable that failure to train the prosecutors amounted to conscious disregard for defendants’ Brady rights. He did not do so.”145 It should be noted, however, that the Walker standards appear to remain valid for § 1983 municipal liability claims based upon inadequate Brady training of the police. 

In her forceful and persuasive dissent, Justice Ginsburg took issue with the Court’s absolute requirement that the § 1983 plaintiff demonstrate a pattern of Brady violations by assistant district attorneys. The dissent found sufficient evidence for the jury to conclude that (1) District Attorney Connick did not ensure that prosecutors in his office knew their Brady obligations; (2) the need for Brady training and monitoring was obvious to Connick; and (3) “Connick’s cavalier approach to his staff’s knowledge and observation of Brady requirements contributed to a culture of inattention to Brady in Orleans Parish.”146 The dissent reasoned that a “municipality that empowers prosecutors to press for a death sentence without ensuring that those prosecutors know and honor Brady rights may be no less ‘deliberately indifferent’ to the risk of innocent lives” than police officers not trained in the constitutional limits of deadly force.147 Further, the Court’s view that lawyers do not need Brady training because they “are equipped with the tools to find, interpret, and apply legal principles,” blurs reality and is “belied by the facts of this case.”148 Brady is a complex area of law, and it should not be assumed that law students learn the Brady doctrine adequately, especially since most law schools do not make criminal procedure a required course.149 Given these realities, the dissent concluded thus, § 1983 municipal liability based upon inadequate training should not be limited to cases in which there is a pattern of constitutional violations.150 

The Court’s sterile “matter of law” decision stands in stark contrast to the grave injustice suffered by John Thompson. Furthermore, the Court failed to acknowledge that the injustice was, as the jury found, caused by the district attorney office’s deliberately indifferent Brady training. In public remarks shortly after the Supreme Court rendered its decision in Connick v. Thompson, retired Supreme Court Justice John Paul Stevens singled out Connick for pointed criticism, focusing on the “shocking” prosecutorial misconduct in the case and the need for respondeat superior to govern § 1983 municipal liability.151 

6. Conclusion

A meaningful § 1983 damages remedy for Brady violations could play a significant motivating factor in enhancing compliance by prosecutors and the police with their Brady obligations. Unfortunately the confluence of recent Supreme Court decisions restricting the availability of § 1983 to challenge convictions and sentences, fortifying prosecutorial immunity, and imposing stringent municipal liability standards has placed serious obstacles in the path of § 1983 Brady claimants.


  1. Hardin v. Staub, 490 U.S. 536, 539 (1989); Burnett v. Grattan, 468 U.S. 42, 53 (1984); Robertson v. Wegmann, 436 U.S. 584, 590-91 (1978).
  2. See Carey v. Piphus, 435 U.S. 247, 254 (1978) (procedural due process claim: basic purpose of § 1983 damages is to compensate for injuries caused by deprivation of plaintiff’s constitutional right).
  3. Smith v. Wade, 461 U.S. 30 (1983) (punitive damages may be awarded against official in her personal capacity if official acted with malicious intent or callous disregard of plaintiff’s federally protected rights). Municipal entities, however, are immune from punitive damages under § 1983 — City of Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981).
  4. 373 U.S. 83 (1963).
  5. 424 U.S. 409, 428-29 (1976).
  6. See also Connick v. Thompson, 131 S. Ct. 1350, 1363 (2011) (prosecutors are deterred from misconduct because they are subject to “professional discipline, including sanctions suspensions, and disbarment.”) (citations omitted).
  7. See Joel B. Rudin, The Supreme Court Assumes Errant Prosecutors Will Be Disciplined by Their Officers or the Bar: Three Case Studies That Prove That Assumption Wrong, 80 Fordham L. Rev. 537, 539-543, 572 (2011) (summarizing various studies and reports concluding that discipline of prosecutors is very rare).
  8. 512 U.S. 477 (1984).
  9. 555 U.S. 335 (2009).
  10. 131 S. Ct. 1350 (2011).
  11. Brady violations have been identified as one of the causes of wrongful convictions, including in death penalty cases. See Brandon L. Garrett, Convicting the Innocent 168 (2011). See also Final Report of the New York State Bar Association’s Task Force on Wrongful Convictions 19-36 (April 14, 2009).
  12. 373 U.S. 83 (1963).
  13. Id. at 87.
  14. United State v. Agurs, 427 U.S. 97, 110 (1978) (in some situations evidence is of such substantial value to defense that fairness requires its disclosure “even without a specific request”).
  15. United States v. Bagley, 473 U.S. 667 (1985); Giglio v. United States, 405 U.S. 150 (1972).
  16. Brady v. Maryland, 373 U.S. at 87.
  17. United States v. Agurs, 427 U.S. at 110.
  18. Strickler v. Green, 527 U.S. 263, 281-82 (1999). In essence the materiality prong builds a type of harmless error analysis into the question whether there was a constitutional violation.
  19. United States v. Bagley, 473 U.S. 667, 682 (1985).
  20. Id. at 701 (Marshall, J., dissenting).
  21. Allbright v. Olvier, 510 U.S. 266, 273 n.6 (1994); McCann v. Mangialardi, 337 F.3d 782, 787 (7th Cir. 2003); Michael Avery, Paying for Silence: The Liability of Police Officers Under Section 1983 for Suppressing Exculpatory Evidence, 13 Temp. Pol. & Civ. Rts. L. Rev. 1, 5, 17-18 (2003).
  22. West v. Atkins, 487 U.S. 42, 48 (1988); Gomez v. Toledo, 446 U.S. 635, 640 (1980). Section 1983 does not itself create rights. Rather, it is the vehicle for enforcing federal constitutional rights and, in some cases, federal statutory rights, against defendants who acted under color of state law. Graham v. Connor, 490 U.S. 386, 393-94 (1989).
  23. See, e.g., Whitlock v. Brueggeman, 682 F.3d 567, 587-89 (7th Cir. 2012): Steidl v. Fermon, 494 F.3d 623, 627-632 (7th Cir. 2007); Gibson v. Superintendant of New Jersey Dep’t. of Law and Public Safety, 411 F.3d 427, 442-443 (3d Cir. 2005), cert. denied, 547 U.S. 1035 (2006).
  24. See Martinez v. California, 444 U.S. 277 (1980). Section 1983 is interpreted “against the background of tort liability that makes a person responsible for the natural consequences of his actions.” Monroe v. Pape, 365 U.S. 167, 187 (1961). Accord, Malley v. Briggs, 475 U.S. 335, 344 n.7 (1986). See discussion infra accompanying notes 99-103.
  25. Ashcroft v. Iqbal, 556 U.S. 662, 676-77 (2009) (no respondeat superior liability in § 1983 or Bivens actions).
  26. See, e.g., Imbler v. Pachtman, 424 U.S. 409 (1976) (prosecutor’s advocacy functions).
  27. Rehberg v. Paulk, 132 S. Ct. 1497 (2012) (grand jury witnesses); Briscoe v. LaHue, 460 U.S. 325 (1983) (trial witnesses).
  28. See, e.g., Messerschmidt v. Millender, 132 S. Ct. 1235 (2012) (law enforcement officers who applied for and executed search warrant).
  29. 512 U.S. 477 (1994).
  30. Id. at 486-87 (“We hold that in order to recover damages for allegedly unconstitutional … harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determinations, or called into question by a federal court’s issuance of a writ of habeas corpus [.]”).
    In a recent decision, the Supreme Court held that the Heck doctrine does not bar a § 1983 claim asserted by a state prisoner seeking access to evidence in the state’s possession for the purpose of DNA testing. Skinner v. Switzer, 131 S. Ct. 1289 (2011). The Court in Skinner acknowledged, however, that its decision in District Attorney Office v. Osborne, 557 U.S. 52 (2009) “rejected the extension of substantive due process in this area … and left slim room for the prisoner to show that the governing state law denies him procedural due process.” Skinner, 131 S. Ct. at 1293.
  31. See, e.g., Amaker v. Weiner, 179 F.3d 48, 51-52 (2d Cir. 1999); Boyd v. Biggers, 31 F.3d 279, 283 (5th Cir. 1994). See also Johnson v. Dossey, 515 F.3d 778, 781-82 (7th Cir. 2008); Michael Avery, supra note 21 at 1, 5. (2003). As the decision in Johnson v. Dossey illustrates, sometimes, the Heck doctrine works in the plaintiff’s favor by delaying the accrual of the § 1983 claim for relief until the conviction or sentence is overturned.
  32. Imbler v. Pachtman, 424 U.S. 409 (1976). See also Burns v. Reed, 500 U.S. 478, 492 (1991) (participation in probable cause hearing for issuance of search warrant); Kalina v. Fletcher, 522 U.S. 118 (1997) (filing information and motion for arrest warrant).
  33. Imbler v. Pachtman, 424 U.S. 409, 430-432 (1976); Yarris v. County of Delaware, 465 F.3d 129 (3d. Cir. 2006); Villasana v. Wilhoit, 368 F.3d 976, 979 (8th Cir. 2004), cert. denied, 543 U.S. 1153 (2005); Fullman v. Graddick, 739 F.2d 553, 558-59 (11th Cir. 1984). See also Jean v. Collins, 221 F.3d 656, 661 (4th Cir. 2000) (en banc), cert. denied, 531 U.S. 1076 (2001).
  34. Bernard v. County of Suffolk, 356 F.3d 495, 504 (2d Cir. 2004).
  35. Imbler v. Pachtman, 424 U.S. 409, 424-432 (1976); Campbell v. Maine, 787 F.2d 776, 778 (1st Cir. 1986) (§ 1983 claims asserting, inter alia, Brady violations).
  36. See Forrester v. White, 484 U.S. 219, 229 (1988). Accord Rehberg v. Paulk, 132 S. Ct. 1497, 1503 (2012); Kalina v. Fletcher, 522 U.S. 118, 127 (1997).
  37. See Van de Kamp v. Goldstein, 555 U.S. 335, 341 (2009).
  38. See, e.g., Buckley v. Fitzsimmons, 509 U.S. 273, 277-278 (1993) (prosecutor’s holding press conference and engaging in investigative activity prior to establishment of probable cause to arrest not protected by absolute prosecutional immunity); Burns v. Reed, 500 U.S. 478, 492-96 (1991) (prosecutor’s providing legal advice to police during investigative phase not protected by absolute immunity). See also Kalina v. Fletcher, 522 U.S. 118, 129-131 (1997) (prosecutor who vouched for truthfulness of “Certification for Determination of Probable Cause” not protected by prosecutorial immunity).
  39. 555 U.S. 335 (2009).
  40. Van de Kamp, 555 U.S. at 340.
  41. Id. at 339.
  42. Id. 
  43. Giglio v. United States, 405 U.S. 150 (1972).
  44. See cases in note 33, supra. 
  45. See Part 4, infra. 
  46. Goldstein v. Long Beach, 481 F.3d 1170 (9th Cir. 2007).
  47. Van de Kamp v. Goldstein, No. 07-854 2008 WL 4804009 at 43.
  48. Van de Kamp, 555 U.S. at 343.
  49. Id. at 344.
  50. Id. 
  51. Id. 
  52. Id. at 345.
  53. Id. at 346. The Court reasoned that the supervisory prosecutors, like trial prosecutors, should be able to make decisions relating to trial matters free of the fear of personal liability. Id. at 347.
  54. Van de Kamp, 555 U.S. at 347. The Court was also concerned that it may often be difficult to draw a line between general office supervision or training, e.g., relating to Brady material, and “specific supervision or training e.g., related to a particular case.” Id. at 346.
  55. Van de Kamp, 555 U.S. at 347.
  56. Id. at 348.
  57. Id. 
  58. Id. at 348-49.
  59. Id. at 349.
  60. Prior to the decision in Van de Kamp, some lower courts held that the formulation of prosecutorial policies was shielded by absolute prosecutorial immunity. Haynesworth v. Miller, 820 F.2d 1245, 1269 (D.C. Cir. 1987) (prosecutor absolutely immune for formulating general policy of pursuing criminal charges against individuals who refused to waive civil suits against police officers for false arrest: “[T]here is no meaningful distinction between a decision on prosecution in a single instance and decisions on prosecution formulated as policies for general application. … The decision to focus prosecutorial energies upon particular classes of law violations or violators bears many features in common with the decision to commence a single proceeding.”); Whitefield v. City of Philadelphia, 587 F. Supp. 2d, 657, 671 (E.D. Pa. 2008) (prosecutor absolutely immune for employing policy or custom of appealing vacaturs of sentences entered on technical procedural grounds, because such a policy “is virtually indistinguishable from the decision to appeal the vacatur in this case alone”); Eisenberg v. Dist. Attorney for County of Kings, 847 F. Supp. 2d 1029, 1037 (E.D. N.Y. 1994) (district attorney’s alleged policy of prosecuting sex crimes despite lack of supporting evidence was shielded by absolute immunity; there is no meaningful distinction between formulating policy to prosecute a particular type of crime and prosecuting an individual for that crime; merely characterizing district attorney’s decision as “policy” does not deprive it of absolute immunity).
  61. See, e.g., Warney v. Monroe County, 587 F.3d 113 (2d Cir. 2009) (prosecutor’s delay during post-conviction proceedings in communicating to defense counsel DNA test results exonerating criminal defendant protected by prosecutorial immunity because part of prosecutor’s advocacy role). See also Fields v. Wharrie, 672 F.3d 505, 512 (7th Cir. 2012).
  62. Kyles v. Whitley, 514 U.S. 419, 435, 438-39 (1995).
  63. Strickler v. Greene, 527 U.S. 263, 280-81 (1999).
  64. See, e.g., Whitlock v. Brueggemann, 682 F.3d 567, 587-88 (7th Cir. 2012); Johnson v. Dossey, 515 F.3d 778, 781 (7th Cir. 2008); Steidl v. Fermon, 494 F.3d 623, 627-32 (7th Cir. 2007); Porter v. White, 483 F.3d 1294, 1304 (11th Cir. 2007); Gibson v. Superintendent of New Jersey Dep’t of Law and Public Safety, 411 F.3d 427, 442-443 (3d Cir. 2005) (“Several courts have recognized that police officers and other state actors may be liable under § 1983 for failure to disclose exculpatory material to the prosecutor.”), cert. denied, 547 U.S. 1035 (2006); Villasana v. Wilhoit, 368 F.3d 976, 978 (8th Cir. 2004), cert. denied, 543 U.S. 1183 (2005); Newsome v. McCabe, 256 F.3d 747, 752 (7th Cir. 2001).
  65. See, e.g., Gibson v. Superintendent of New Jersey Dep’t of Law and Public Safety, 411 F.3d at 433; Geter v. Fortenberry, 849 F.2d 1550, 1559-1561 (5th Cir. 1988).
  66. See, e.g., Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012); Ashcroft v. al-Kidd, 131 S. Ct. 2074 (2011); Pearson v. Callahan, 555 U.S. 223, 231 (2009); Saucier v. Katz, 533 U.S. 194, 202; Anderson v. Creighton, 483 U.S. 635, 638-39 (1987).
  67. See discussion accompanying notes 12-17, supra. 
  68. 474 U.S. 327, 330-31 (1986).
  69. Accord Davidson v. Cannon, 474 U.S. 344, 347 (1986).
  70. See Martin A. Schwartz, Section 1983 Litigation: Claims and Defenses § 3.06 (4th ed. 2012).
  71. 221 F.3d 656 (4th Cir. 2000) (per curiam) (en banc), cert. denied, 531 U.S. 1076 (2001).
  72. Id. at 663.
  73. 483 F.3d 1294, 1306-1308 (11th Cir. 2000), cert. denied, 552 U.S. 1485 (2008).
  74. Porter, 483 F.3d at 1308-11.
  75. See Drumgold v. Callahan, 707 F.3d 28, 43 n.10 (1st Cir. 2013) (type of culpability giving rise to § 1983 Brady claim against police officer is “difficult question that has engendered a range of views”).
  76. 368 F.3d 976, 980 (8th Cir. 2004), cert. denied, 543 U.S. 1153 (2005).
  77. Accord Briscoe v. County of St. Louis, 690 F.3d 1004, 1113 (8th Cir. 2012); White v. McKinley, 519 F.3d 806, 814 (8th Cir. 2008). In support of this ruling the court in Villasana cited Newsome v. McCabe, 256 F.3d 747, 752 (7th Cir. 2001) and McMillian v. Johnson, 88 F.3d 1554, 1569 (11th Cir. 1996), cert. denied. 521 U.S. 1121 (1997).
  78. 368 F.3d 976, 979 (8th Cir. 2004), cert. denied, 543 U.S. 1153 (2005).
  79. Id. at 980. 
  80. Villasana, 368 F.3d at 980.
  81. Steidl v. Fermon, 494 F.3d 623, 631 (7th Cir. 2007); Tennison v. City and County of San Francisco, 570 F.3d 1078, 1087 (9th Cir. 2009). Accord Jones v. City of Chicago, 856 F.2d 985, 992-93 (7th Cir. 1988).
  82. Tennison, 570 F.3d at 1089.
  83. Livers v. Schenck, 700 F.3d 340, 359 (8th Cir. 2012). Becker v. Kroll, 494 F.3d 904, 924 (10th Cir. 2007); Morgan v. Gertz, 166 F.3d 1307, 1310 (10th Cir. 1999); Flores v. Satz, 137 F.3d 1275, 1278 (11th Cir. 1998); Taylor v. Waters, 81 F.3d 429, 435-36 (4th Cir. 1996). See also District Attorney’s Office v. Osborne, 557 U.S. 52, 68-69, (2009) (because Brady is a trial right it does not govern claimed due process right of post-conviction access to evidence for purpose of DNA testing). For an argument that the § 1983 damages remedy should encompass those who were tried and not convicted, see Sunil Bhave, The Innocent Have Rights Too: Expanding Brady v. Maryland to Provide the Criminally Innocent with A Cause of Action Against Police Officers Who Withhold Exculpatory Evidence, 45 Creighton L. Rev. 1 (2011).
  84. 81 F.3d 429, 436 n.5 (4th Cir. 1996).
  85. Accord Flores v. Sratz, 137 F.3d 1275, 1278 (11th Cir. 1998). The circuit court in Taylor also ruled that an officer’s failure to disclose exculpatory material after a magistrate’s finding of probable cause does not render the continuing seizure unreasonable. 81 F.3d at 437.
  86. 166 F.3d 1307 (10th Cir. 1996).
  87. 682 F.3d 567, 588 (7th Cir. 2012).
  88. Id. 
  89. 494 F.3d 623 (7th Cir. 2007).
  90. Id. at 630. See also Fields v. Wharrie, 672 F.3d 505, 514-16 (7th Cir. 2012) (where prosecutor was member of trial team his Brady obligations continue on direct appeal and any retrial until conviction becomes final). The court in Steidl did not decide whether a Brady violation may be based on the prosecutor’s failure to disclose exculpatory material learned post-trial. 494 F.3d at 629.
  91. 682 F.3d 567 (7th Cir. 2012).
  92. 557 U.S. 52 (2009).
  93. Whitlock, 682 F.2d at 587.
  94. Id. at 587.
  95. See, e.g., Strickler v. Green,527 U.S. 263, 289-296 (1999) (deciding as matter of law that suppressed Brady evidence was not material).
  96. 210 F.3d 186 (3d Cir), cert denied, 531 U.S. 880 (2000).
  97. Id. at 199.
  98. In the author’s view courts may be reluctant to put the materiality issue to a jury because of the danger that this course of action could effectively require introduction of all or a substantial part of the evidence from the criminal case in the § 1983 action.
  99. Drumgold v. Callahan, 707 F.3d 28, 48 (1st Cir. 2013) (citing Johnson v. Mahoney, 424 F.3d 83, 89 (1st Cir. 2005)).
  100. See, e.g., Sanchez v. Pereia-Castillo, 590 F.3d 31, 50 (1st Cir. 2009); Mckinley v. City of Mansfield, 404 F.3d 418, 438 (6th Cir. 2005). See also Whitlock v. Bruegemann, 682 F.3d 567, 582 (7th Cir. 2012).
  101. 707 F.3d 28 (1st Cir. 2013).
  102. Id. at 51 (quoting district court’s instruction). The district judge gave the example of two fires combining to destroy a barn. Id. at 53.
  103. Id. at 54 (citation omitted).
  104. Id. at 53.
  105. Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
  106. See, e.g., Steidl v. Fermon, 494 F.3d 623, 632 (7th Cir. 2007) (Defendant police officers “had ample notice that the knowing suppression of exculpatory material that was in the files at the time of the trial violated the defendant’s constitutional rights.”); Newsome v. McCabe, 256 F.3d 247, 252-53 (7th Cir. 2001) (law clearly established police cannot withhold exculpatory material from prosecutors); Geter v. Fortenberry, 849 F.2d 1550, 1559-1561 (5th Cir. 1988) (police officer who deliberately concealed exculpatory material violated clearly established federal law); See also Drumgold v. Callahan, 707 F.3d 28, 43 (1st Cir. 2013) (law firmly settled law enforcement officer may not deliberately suppress material evidence favorable to defendant); Inece v. City of Chicago, 286 F.3d 994, 1000-01 (7th Cir. 2002). Cf. Gibson v. Superintendent of New Jersey Dep’t of Law and Public Safety, 411 F.3d 427, 443 (3d Cir. 2005) (police officers protected by qualified immunity because their duty to disclose the exculpatory material to the prosecutor was not clearly established in 1994), cert. denied, 547 U.S. 1035 (2006).
  107. See generally Wayne R. Lafave et al.; Criminal Procedure § 24.3 (5th ed. 2009). On the issue of the application of Brady when the defendant pleads guilty, the Supreme Court held only that Brady does not require disclosure of impeachment material, and did not resolve whether Brady would apply to other exculpatory material. United States v. Ruiz, 536 U.S. 632 (2002).
  108. See Anderson v. Creighton, 483 U.S. 635, 639-40 (1987) (“[T]he right to due process of law is quite clearly established by the Due Process Clause,” but “the right that the official is alleged to have violated must have been clearly established in more particularized and hence more relevant sense: The contours of the right must be sufficiently clear that a reasonable official could understand that what he is doing violates that right. This is not to say that an official action is not protected by qualified immunity unless the very action has previously been held unlawful, but it is to say that in the light of pre-existing law, the unlawfulness must be apparent.”) (citations omitted). See also Hope v. Pelzer, 536 U.S. 730, 739 (2002).
  109. See, e.g. Livers v. Schenck, 700 F.3d 340, 360 (8th Cir. 2012); Gibson v. Superintendent of New Jersey Dep’t of Law and Public Safety, 411 F.2d 427, 443 (3d Cir. 2005).
  110. District attorneys’ offices when considered part of state government cannot be sued under § 1983 because neither a state nor a state agency is considered a “person” that can be sued within the meaning of § 1983. See generally Will v. Michigan Dep’t of State Police, 491 U.S. 58, 64 (1989). For example, “[w]hen prosecuting a criminal matter, a district attorney in New York State, acting in a quasi-judicial capacity, represents the State not the County.” Baez v. Hennessy, 853 F.2d 73, 77 (2d Cir. 1988), cert. denied, 488 U.S. 1014 (1989). Accord Ying Jing Gan v. City of New York, 996 F.2d 522, 535-36 (2d Cir. 1993). However, the administrative functions of a district attorney’s office in New York are treated as municipal actions. Ying Jing Gan, 996 F.2d at 536.
  111. Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 166 (1993) (“[U]nlike various government officials, municipalities do not enjoy immunity from suit either absolute or qualified under § 1983.”); Owen v. City of Independence, 443 U.S. 622, 638 (1980) (“municipality may not assert the good faith of its officers or agents as a defense under § 1983”). Municipalities are, however, immune from punitive damages. See note 3, supra.
  112. 436 U.S. 658, 694 (1978).
  113. City of Canton v. Harris, 489 U.S. 378, 388 (1989). Similarly, deliberately indifferent supervision may give rise to § 1983 municipal liability. Martin A. Schwartz, Section 1983 Litigation: Claims and Defenses § 7.18 (4th ed. 2012).
  114. 131 S. Ct. 1350 (2011).
  115. Connick, 131 S. Ct. at 1356.
  116. Id. at 1356 n.1.
  117. 578 F.3d 293 (5th Cir. 2009) (per curium) (en banc).
  118. 131 S. Ct. at 1356.
  119. Proper analysis requires separation of two issues: (1) whether plaintiff has established a constitutional violation; and, if so, (2) whether the municipal entity is responsible for that violation. Collins v. Harker Heights, 503 U.S. 115, 120 (1992).
  120. 489 U.S. 378 (1989).
  121. Id. at 390.
  122. Id. 
  123. Id. at 387.
  124. 520 U.S. 397 (1997).
  125. Id. at 409.
  126. Connick, 131 S. Ct. at 1360 (quoting Bryan County, 520 U.S. at 420).
  127. Connick, 131 S. Ct. at 1359-60. The Court in Bryan County had made the same observation with respect to inadequate hiring claims. Bryan County, 520 U.S. at 410.
  128. Connick, 131 S. Ct. at 1360.
  129. Id. 
  130. Id. (emphasis added).
  131. Id. at 1360.
  132. Id. at 1360 n.7.
  133. Id. (quoting Canton, 489 U.S. at 395 (O’Connor, J., concurring in part, dissenting in part)).
  134. It is unclear, however, how “similar” the violations must be to constitute a “pattern.”
  135. Connick, 131 S. 1361.
  136. Id. 
  137. Id. at 1361-62.
  138. Id. at 1364.
  139. Id. at 1363.
  140. Id. 
  141. Id. 
  142. 974 F.2d 293 (2d Cir. 1992), cert. denied, 507 U.S. 961 and 972 (1993).
  143. Connick, 131 S. Ct. at 1365. See ibid at 1382-83 n.17 (lower court formulation of municipal liability jury instructions were based upon Walker) (Ginsburg, J., dissenting).
  144. Connick, 131 S. Ct. at 1365.
  145. Id. (citations omitted.) Justice Scalia, concurring, concluded that the withholding of evidence in Thompson’s case “was almost certainly caused not by a failure to give prosecutors specific training but by miscreant prosecutor Gerry Deegan’s willful suppression of evidence he believed to be exculpatory.” 131 S. Ct. at 1368. (Scalia, J., concurring). Deegan was one of the ADAs who tried the robbery case.
  146. Connick, 131 S. Ct. at 1381-82 (Ginsburg, J., dissenting).
  147. Id. at 1385. The dissent found that the Second Circuit’s decision in Walker v. City of New York has not led to a “‘flood or even rainfall of litigation.’” 131 S. Ct. at 1382 n.17. (Ginsburg, J., dissenting) (quoting Skinner v. Switzer, 131 S. Ct. 1289, 1299 (2011)).
  148. 131 S. Ct. at 1386 (Ginsburg, J., dissenting)
  149. Id. at 1385.
  150. “A district attorney’s deliberate indifference might be shown in several ways short of a prior pattern.” Connick, 131 S. Ct. at 1386 (Ginsburg, J., dissenting). “For example, a prosecutor’s office could be deliberately indifferent if it had a longstanding open file policy, abandoned that policy, but failed to provide training to show prosecutors how to comply with their Brady obligations in the altered circumstances. Or a district attorney could be deliberately indifferent if he had a practice of paring well-trained prosecutors with untrained prosecutors, knew that such supervision had stopped untrained prosecutors from committing Brady violations, but nevertheless changed the staffing on cases so that untrained prosecutors worked without supervision.” Id. at 1386 n.27. “Connick, who himself had been indicted for suppression of evidence, created a tinderbox in Orleans Parish in which Brady violations were highly inevitable.” Id. at 1387. See also Smith v. Cain, 132 S. Ct. 627 (2012) (failure of prosecutors in Orleans Parish District Attorney’s Office to disclose exculpatory material violated criminal defendant’s Brady rights).
  151. Adam Liptak, Justice Stevens Is Off the Bench but Not Out of Opinions, NY Times, May 30, 2011,

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