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Wednesday, February 24, 2010

Connick v. Thompson and the (changing?) scope of prosecutorial immunity

One of the petitions for certiorari the Supreme Court considered at last Friday's conference was Connick v. Thompson, No. 09-571.  Prosecutors in the Orleans Parish (La.) DA's office violated a defendant's Brady rights. Years later the office was held liable under the Monell doctrine, which allows municipal liability when government policy causes a constitutional wrong.  Individual prosecutors, as you may know, enjoy absolute immunity from personal liability for wrongs committed while discharging the prosecutorial function.  So there was no individual liability here, but there was municipal liability.

As far as I can discern, the Court took no action on the case Friday; it isn't on the order list.  That is an ambiguous signal, of course.  Cert. might later be granted or denied after one or more Justices has a chance to study the case further or to lobby colleagues.  Maybe someone is working on a dissent from the denial of cert.  It is conceivable there could be a summary reversal, though that would surprise me in this case.

The question whether the office should have been held liable on this particular record is a matter over which, I suppose, reasonable minds might differ (some non-conclusive evidence of that comes from the fact that the en banc Fifth Circuit divided evenly).  The petitioners certainly claim that this was a very aggressive and problematic application of Monell liability.  I'm not sure about that.  But what I find interesting about this case is the second point in the office's cert. petition.  There they claim that the reasoning that supports absolute immunity for individual prosecutors also supports absolute immunity for prosecutors' offices as entities, at least for certain categories of Monell liability.  An amicus brief amplifies that argument.  (The briefs in the case are available at SCOTUSblog here.)  Basically the idea is that entity liability will chill vigorous prosecution and so forth - the same things that support individual immunity.

The thing about the law is that arguments that seem crazy at time 1 could become plausible at time 2 and could become obviously correct at time 3.  (Some of them will remain crazy at all times, but right now we don't know which ones.)  Maybe I'm just behind the times on this one, but aren't we still at time 1 when it comes to this argument for entity immunity?  Or have I missed a shift to time 2?

Posted by Aaron Bruhl on February 24, 2010 at 09:39 AM in Constitutional thoughts | Permalink


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The Rule of Law stands above the Judicial Power. I quote from the Constitution for the United States of America Article III Section 2 “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties.” To remove that limitation with absolute immunity and put the Judicial Power above the Rule of the Constitution is unconscionable. To put anyone above the constitution is unconscionable.

I again quote from Alexander Hamilton in the Federalist Paper #78 “There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void.” I quote from the Constitution for the United States of America Article III Section 2 “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior.” It is axiomatic “good Behavior” has to be submissive to “the tenor of the commission under which it is exercised.”

In Bradley the court offered “If in the exercise of the powers with which they are clothed as ministers of justice they act with partiality, or maliciously, or corruptly, or arbitrarily, or oppressively, they may be called to an account by impeachment and suspended or removed from office. ” That is all well and good if the act with “partiality, or maliciously, or corruptly, or arbitrarily, or oppressively” is at odds with the Majority or in the case of Senatorial Impeachment a cloture, Super Majority, to put down a filibuster.
But how does the minority victim of an act with “partiality, or maliciously, or corruptly, or arbitrarily, or oppressively” get relief? I quote from Bivens, “But it must also be recognized that the Bill of Rights is particularly intended to vindicate the interests of the individual in the face of the popular will as expressed in legislative majorities; at the very least. ” It is minorities that need “The Protection of the Law ”, a majority has the strength of overwhelming numbers. Again I agree with and quote from Bivens, “For people in Bivens' shoes, it is damages or nothing. ”

Civilization has evolved from the law of the jungle, “survival of the fittest” to “an eye for an eye” to today “Do unto other as you would have them do unto you.” We no longer compete to the death, although litigation can at times seem like slow death. We no longer ask for opposing parties to submit to mutilation. What we do in VIRTUALLY all civilized countries is establish a dollar amount to compensate the victim for redress of grievances .

The courts have long held that this will open the door to Judges being mulcted in damages. I have to counter, not if the courts do their jobs. I stress that on two levels, first that they not deny the rights, privileges or immunities secured by our Constitution and Laws and second that they not allow ANYONE to be mulcted by spurious suits. For a clearer confirmation, I would quote Justice William O. Douglas’s dissent in Pierson v. Ray:

“The argument that the actions of public officials must not be subjected to judicial scrutiny because to do so would have an inhibiting effect on their work is but a more sophisticated manner of saying "The King can do no wrong." Chief Justice Cockburn long ago disposed of the argument that liability would deter judges:
"I cannot believe that judges . . . would fail to discharge their duty faithfully and fearlessly according to their oaths and consciences . . . from any fear of exposing themselves to actions at law. I am persuaded that the number of such actions would be infinitely small, and would be easily disposed of. (Page 386 U. S. 566) While, on the other hand, I can easily conceive cases in which judicial opportunity might be so perverted and abused for the purpose of injustice as that, on sound principles, the authors of such wrong ought to be responsible to the parties wronged. Dawkins v. Lord Paulet, L.R. 5 Q.B. 94, 110 (1869) (C.J. Cockburn, dissenting) ".

“Whatever other concerns should shape a particular official’s actions, certainly one of them should be the constitutional rights of individuals who will be affected by his actions. To criticize section 1983 liability because it leads decision makers to avoid the infringement of constitutional rights is to criticize one of the statute’s raisons d’etre.“ Owen v. City of Independence, 445 U. S. 622 (1980) @ Page 445 U. S. 656.

As quoted in Owen v. City of Independence, 445 U. S. 622 (1980) “Representative Shellabarger, the author and manager of the bill (Title 42 §1983. Civil action for deprivation of rights) in the House, explained in his introductory remarks the breadth of construction that the Act was to receive:

“I have a single remark to make in regard to the rule of interpretation of those provisions of the Constitution under which all the sections of the bill are framed. This act is remedial, and in aid of the preservation of human liberty and human rights. All statutes and constitutional provision authorizing such statutes are liberally and beneficently construed. It would be most strange and, in civilized law, monstrous, were this not the rule of interpretation. As has been again and again decided by your own Supreme Court of the United States, and everywhere else where there is wise judicial interpretation, the largest latitude consistent with the words employed is uniformly given in construing such statutes and constitutional provisions as are meant to protect and defend and give remedies for their wrongs to all the people.”

Anarchy is proposed by BRADLEY V. FISHER, 80 U. S. 335 (1871), I quote
“a judge of a criminal court, invested with general criminal jurisdiction over offenses committed within a certain district, should hold a particular act to be a public offense, which is not by the law made an offense, and proceed to the arrest and trial of a party charged with such act, or should sentence a party convicted to a greater punishment than that authorized by the law upon its proper construction, no personal liability to civil action for such acts would attach to the judge” (Cong.Globe, 42d Cong., 1st Sess., App. 68 (1871))”

That is a recipe for insanity, and you wonder why our Justice System is out of control. “The National Criminal Justice Commission Act of 2009” is asserting the same thing.

Posted by: David G. Jeep | Jun 17, 2010 3:48:42 PM

We live in lawless society because of immunity.

We live in a lawless society where anyone from your spouse, to a traffic cop, to a would be judge, to a court house of state judges, to a federal magistrate judge, to an Article III federal Judge to the Supreme Court can take your inalienable rights and you can not even talk about it, much less bring the issue to a public hearing!!!!!!! They all have immunity!!!!!!

Judges today are lawbreakers and criminals by their own acknowledgement and assertion. I quote from the Supreme Court opinion “This immunity applies even when the judge is accused of acting maliciously and corruptly, and it "is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of (the people being robbed and disenfranchised) the public, whose interest it is that the judges should be at liberty (to act without regard to the law or the Rights of “We the People”) to exercise their functions with independence and without fear of consequences." (Scott v. Stansfield, L.R. 3 Ex. 220, 223 (1868), quoted in Bradley v. Fisher, supra, 80 U. S. 349, note, at 80 U. S. 350.) Pierson v. Ray, 386 U. S. 547 (1967) Page 386 U. S. 554”

They admit and acknowledge some of them are going to be “malicious or corrupt,” we have to endure them for our own good.(Our own good is the denial of the Protection of the Law) But even those that are not “malicious or corrupt” need the “independence” to act without regard to the very laws “We the People” have established. They assert they need to be able to act “without fear of consequences.” They assert they need to be able to break the law deny our rights at will and that “we the People” can or should do nothing to oppose them.

Reprinted from Handwritten March 16, 2010 Original

Eastern District Court of Missouri
Case #4:09-cr-00659-CDP
Document #78, Attachments #(1) Exhibit, time stamped 3/25/2010, 5:30 PM CDT

Posted by: David G. Jeep | Jun 17, 2010 3:39:38 PM

An update: Today the Court granted cert. in this case, limited to the first question in the petition: i.e. whether imposing *Monell* liability on the DA's office was appropriate in the factual circumstances involved here, which (according to the petitioners) concerned a single *Brady* violation.
The Court did not grant cert. on the second question presented, which is the one that posited a conflict between entity liability on the one hand and absolute immunity for individual prosecutors on the other. So it is still unclear whether that argument is crazy.

Posted by: Aaron | Mar 22, 2010 12:33:32 PM

This is a great question. Let's say we're at Time 1 3/4. The Supreme Court's 2008 decision in *Van de Kamp v. Goldstein* opened the door for the argument. The Court there said that the supervising attorneys who make the macro-level policies that guide line prosecutors in individual cases (there, about compliance with Brady) were shielded by absolute immunity. And that made some sense--a supervisor who made orders in a particular case would be shielded, so why not for orders applicable to all cases. Now, since the standard for supervisory liability is similar in some respects to municipal liability (policy, custom, failure-to-[blank], the immunity logically should extend to the office as a whole. In other words, if the DA has absolute immunity for this policy, why not the office as a whole.

The answer, I would hope, is because we impose liability on the municipality even when every individual (including supervisors and policymakers) enjoys qualified immunity. So why should prosecutorial immunity be any different.

Posted by: Howard Wasserman | Feb 24, 2010 12:35:45 PM

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