Connick v. Thompson

Villanova Law grad Gordon Cooney and his Morgan Lewis partner Michael Banks have long represented a Louisiana man, John Thompson, who spent 18 years in prison but was acquitted on retrial after a crime lab report that the prosecution had failed to disclose was discovered a month before his scheduled execution (Philadelphia Lawyer story here). The Morgan Lewis lawyers (including my friend and former White House colleague Allyson Ho) subsequently represented Thompson in a §1983 case against the Orleans Parish DA's office for the Brady violation, arguing that the Brady violation was caused by the DA's office’s "deliberate indifference" (the §1983 standard under Canton v. Harris, 489 U. S. 378 (1989)) to the requirement to train its prosecutors properly. The jury awarded Thompson $14 million, but today the Supreme Court ruled that the DA’s office cannot be held liable under §1983 for the Brady violation.

On the merits of the decision, I defer to those such as my colleague Teri Ravenell who know more about §1983 litigation. As a mere torts teacher, I thought one interesting aspect of the case was the view advanced by the Alliance Defense Fund and the Cato Institute in an amicus brief for the plaintiff (Thompson) that government entities’ liability under §1983 should follow common law respondeat superior principles and arguing that Monell v. New York City Department of Social Services, 436 U.S. 658 (1978), should be overturned, though there were a host of state and local government interests lined up as amici on the other side (understandably) resisiting such an expansion of § 1983 liability. A sentence in footnote 12 of Justice Thomas's majority opinion settles that particular question: "We stand by the longstanding rule—reaffirmed by a unanimous Court earlier this Term—that to prove a violation of §1983, a plaintiff must prove that 'the municipality’s own wrongful conduct' caused his injury, not that the municipality is ultimately responsible for the torts of its employees."

Regardless of the outcome in the §1983 case, congratulations to Gordon, Allyson, Michael Banks, Ted Cruz, and the lawyers at Morgan Lewis for their persistent and courageous representation of Mr. Thompson over many years.