Thompson v. Connick , 553 F.3d 836 ( 2009 )


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  •                  REVISED AUGUST 27, 2009
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    FILED
    No. 07-30443                            August 10, 2009
    Charles R. Fulbruge III
    JOHN THOMPSON                                                                   Clerk
    Plaintiff-Appellee
    v.
    HARRY F. CONNICK, in his official capacity as District Attorney;
    ERIC DUBELIER, in his official capacity as Assistant District Attorney;
    JAMES WILLIAMS, in his official capacity as Assistant District Attorney;
    EDDIE JORDAN, in his official capacity as District Attorney;
    ORLEANS PARISH DISTRICT ATTORNEY’S OFFICE
    Defendants-Appellants
    Appeals from the United States District Court
    for the Eastern District of Louisiana
    Before JONES, Chief Judge, and KING, JOLLY, DAVIS, SMITH, WIENER,
    BARKSDALE, GARZA, BENAVIDES, STEWART, CLEMENT, PRADO, OWEN,
    ELROD, SOUTHWICK, and HAYNES, Circuit Judges.1
    PER CURIAM:
    By reason of an equally divided en banc court, the decision of the district
    court is AFFIRMED. The panel opinion was vacated by the grant of rehearing
    en banc.
    1
    Judge Dennis is recused and did not participate in this decision.
    No. 07-30443
    JONES, Chief Judge, would reverse for additional reasons:
    I concur in Judge Clement's fine opinion and would also highlight the
    troubling tension between this unprecedented multimillion dollar judgment
    against a major metropolitan District Attorney's office and the policies that
    underlie the shield of absolute prosecutorial immunity. The Supreme Court
    ought to address whether holding governmental entities liable for Section 1983
    violations is consistent with absolute prosecutorial immunity from such
    violations. Imbler v. Pachtman, 
    424 U.S. 409
    , 
    96 S. Ct. 984
    (1976).
    The Supreme Court recently issued a unanimous opinion affording
    absolute immunity from personal Section 1983 liability to Los Angeles County's
    chief prosecutors for failure to train or supervise their staff, or failure to
    establish appropriate systems in regard to the advocacy function of their office.
    Van de Kamp v. Goldstein, ___ U.S. ___, 
    129 S. Ct. 855
    (2009). Much as in this
    case, a plaintiff had been freed from custody after he discovered that important
    evidence had been withheld during his prosecution. The Court made a number
    of observations that are prescient of the circumstances leading to liability in this
    case. These bear repeating or paraphrasing with my editorial analogies to
    prosecutor’s offices.
    No. 07-30443
    1. The 'public trust' in the prosecutor's office would suffer were he to have
    in mind his own potential liability when making prosecutorial decisions. Van de
    
    Kamp, 129 S. Ct. at 860
    (quoting Imbler). Likewise, public confidence will erode
    if the public believe a prosecutorial office is motivated by the impulse to cover
    itself when challenged by difficult prosecutions.
    2. The frequency with which criminal defendants bring suits creates real
    fear about public perception as well as the independence of judgment exercised
    by prosecutors under the constant threat of lawsuits. Van de Kamp, 
    id. 3. Such
    suits, whether against the prosecutor – or the office –, “ 'often
    would require a virtual retrial of the criminal offense in a new forum, and the
    resolution of some technical issues by the lay jury.' ” Van de Kamp, 
    id. (quoting Imbler).
    See footnote 41 of Judge Clement's opinion.
    4. A prosecutor “ ‘inevitably makes many decisions that could engender
    colorable claims of constitutional deprivation.’ ” Van de Kamp, 
    id. (quoting Imbler).
    See Judge Clement's opinion at text adjoining footnote 53.
    5. Defending against such claims, “ ‘often years after they were made,
    could impose unique and intolerable burdens upon a prosecutor [or office]
    responsible annually for hundreds of indictments and trials.’ ” Van de Kamp, 
    id. 3 No.
    07-30443
    (quoting Imbler). A crucial witness here had died, and other prosecutors could
    not recall this case as distinct from the hundreds or thousands they had handled.
    6. The Court also said: "We do not see how...differences in the pattern of
    liability among a group of prosecutors in a single office [i.e. distinguishing
    between the supervisors and the line prosecutors] could alleviate Imbler’s basic
    fear, namely, that the threat of damages liability would affect the way in which
    prosecutors carried out their basic court-related tasks.” Van de 
    Kamp, 129 S. Ct. at 862
    . Moreover, “. . . ‘it is the interest in protecting the proper functioning of
    the office, rather than the interest in protecting its occupant, that is of primary
    importance.’ (internal citation omitted)." 
    Id. Authorizing Section
    1983 liability
    against the office creates the same stress on the proper functioning of the office.
    7. With regard to liability for supervisory actions related to the trial
    process, the Court held that "a suit charging that a supervisor made a mistake
    directly related to a particular trial, on the one hand, and a suit charging that
    a supervisor trained and supervised inadequately, on the other, would seem very
    much alike." Van de 
    Kamp, 129 S. Ct. at 863
    .
    8. "It will often prove difficult to draw a line between general office
    supervision or training and specific supervision or training related to a
    particular case.” Van de Kamp, 
    id. “To permit
    claims based upon the former is
    4
    No. 07-30443
    inevitably to permit the bringing of claims that include the latter." 
    Id. In this
    case, the jury was permitted to infer Section 1983 deliberate indifference and
    causation based on a single incident of withheld Brady evidence.
    9. "[O]ne cannot easily distinguish, for immunity purposes, between
    claims based upon training or supervisory failures related to Giglio [at issue in
    Van de Kamp] and similar claims related to other constitutional matters
    (obligations under Brady v. Maryland, 
    373 U.S. 83
    (1963), for example). And
    that being so, every consideration that Imbler mentions militates in favor of
    immunity." 
    Id. 10. If
    the threat of damages liability for a trial error could lead a trial
    prosecutor to take account of that risk when making trial-related decisions, so,
    too, could the threat of office liability for the same error affect the decisions of
    other prosecutors. Van de 
    Kamp, 129 S. Ct. at 863
    . So, too, could the office
    policies become infected with risk aversion.
    11. Because “better training or supervision might prevent most, if not all,
    prosecutorial errors at trial, permission to bring such a suit [ in Van de Kamp]
    would encourage claims [by other criminal defendants], in effect claiming
    damages for (trial-related) training or supervisory failings.” Van de Kamp, 
    id. Such suits
    could, "given the complexity of the constitutional issues," "pose
    5
    No. 07-30443
    substantial danger of liability even to the honest prosecutor.” 
    Id. (quoting Imbler).
    Indeed, only four convictions of the New Orleans District Attorney's
    office were overturned for Brady violations in the decade preceding Thompson's
    conviction (Judge Clement's opinion at footnotes 49-50), and none involved lab
    reports.
    12.   Practical anomalies result from the coexistence of absolute
    prosecutorial immunity with potential Monell liability of the prosecutor's office.
    As the Court observed in Van de Kamp, 
    id., "[s]mall prosecution
    offices where
    supervisors can personally participate in all of the cases would...remain immune
    from [damage suits]; but large offices, making use of more general office-wide
    supervision and training, would not."
    13. "Most 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." Van de Kamp, 
    id. This seems
    true whether the potential defendant is a supervisor, as in Van de
    Kamp, or the governmental office itself, as in this case.
    The Court has not specifically excluded municipal Section 1983 liability
    for prosecutorial offices, nor has it ruled that they are vulnerable. Still, every
    reason advanced in Van de Kamp and Imbler for protecting the independence
    6
    No. 07-30443
    and integrity of prosecutors in trial-related actions and supervision suggests
    that holding a government entity liable in their stead for the same violations is
    simply untenable. The Court recognized, "as Chief Judge Hand pointed out [in
    Imbler], that sometimes such immunity deprives a plaintiff of compensation that
    he undoubtedly merits; but the impediments to the fair, efficient functioning of
    a prosecutorial office that liability could create lead us to find that Imbler must
    apply here." Van de Kamp, 129 S. Ct at 864. Today’s judgment raises issues
    that will continue to plague honest prosecutors’ offices.
    7
    No. 07-30443
    E. Grady Jolly, Specially Concurring:
    Ordinarily, when an en banc case results in a tie vote, we affirm the
    district court judgment without opinion. That is the way I would prefer it today.
    However, notwithstanding that there is no majority opinion, and that no opinion
    today will bind any court or future party in this circuit, each side has now
    written for publication, and judges are joining one or the other of the respective
    opinions. I join Judge Clement’s opinion because, as between the two, it shows
    the intellectual fortitude of meeting head-on, in a specific workmanlike manner,
    the truly difficult legal issues presented by this case.
    8
    No. 07-30443
    EDITH BROWN CLEMENT, Circuit Judge, with whom JONES, Chief Judge,
    and JOLLY, SMITH, GARZA, and OWEN, Circuit Judges, join, would reverse
    the district court for the following reasons:
    We believe it imperative to explain why the result in this case should not
    encourage the extension of single incident municipal liability under Monell.
    John Thompson, the plaintiff-appellee, was convicted of murder and spent
    fourteen years on death row for a crime he did not commit because prosecutors
    failed to turn over a lab report in a related case. In this 42 U.S.C. § 1983 case,
    he sought compensation for the years spent in prison and on death row. The
    jury awarded Thompson $14 million against the Orleans Parish District
    Attorney in his official capacity. This appeal asks whether Harry Connick, the
    District Attorney, was deliberately indifferent to an obvious need to train his
    assistants on their obligations under Brady v. Maryland;1 it further asks
    whether a lack in Brady training was the moving force behind Thompson’s
    constitutional injury. The district court, and a panel of this court, held that the
    evidence was legally sufficient to support both of these claims. The panel
    opinion was vacated by our order for en banc rehearing.
    Only under the most limited circumstances may a municipality be held
    liable for the individual constitutional torts of its employees. Considering the
    strict standards of culpability and causation applicable here, we conclude that
    the evidence supporting Thompson’s claim was legally inadequate to hold the
    District Attorney’s Office liable for this employee failure. Along similar lines, we
    also conclude that the jury instructions given on “deliberate indifference” were
    plainly erroneous.
    1
    
    373 U.S. 83
    (1963).
    9
    No. 07-30443
    FACTS
    In 1985, a few weeks before his murder trial, John Thompson was tried
    and convicted of attempted armed robbery. Because of the attempted armed
    robbery conviction, Thompson decided not to testify in his own defense in his
    trial for the murder of Raymond T. Liuzza, Jr. Thompson was convicted of
    murder and sentenced to death.
    Fourteen years later, in 1999, an investigator in Thompson’s habeas
    proceedings discovered that prosecutors had failed to turn over a crime lab
    report in the attempted armed robbery case. That lab report indicated that the
    perpetrator had type B blood.             Because Thompson has type O blood, the
    attempted armed robbery conviction was vacated. In 2002, the Louisiana Fourth
    Circuit Court of Appeals granted post-conviction relief and reversed Thompson’s
    murder conviction, holding that the improper attempted armed robbery
    conviction had unconstitutionally deprived Thompson of his right to testify in his
    own defense at his murder trial.2 Thompson was retried for Liuzza’s murder in
    2003 and found not guilty.
    After his release, Thompson brought suit alleging various claims against
    the District Attorney’s Office, Connick, James Williams, Eric Dubelier, and
    Eddie Jordan—the District Attorney in 2003—in their official capacities; and
    Connick in his individual capacity (collectively, “Defendants”).3 The only claim
    that proceeded to trial was a claim under § 1983 for wrongful suppression of
    exculpatory evidence in violation of Brady v. Maryland. Thompson presented
    two theories of liability to the jury: (1) that the Brady violation was due to an
    unconstitutional official policy of the District Attorney’s Office, and (2) that the
    Brady violation was caused by Connick’s deliberate indifference to an obvious
    2
    State v. Thompson, 
    825 So. 2d 552
    , 557–58 (La. Ct. App. 2002).
    3
    Connick was dismissed in his individual capacity prior to trial.
    10
    No. 07-30443
    need to train, monitor, or supervise his prosecutors. The jury found that the
    Brady violation was not due to an official policy of the District Attorney’s Office,
    but was due to a failure to train. The jury awarded Thompson $14 million in
    damages.        Defendants filed timely motions for judgment as a matter of
    law—before and after the verdict—as well as a motion to amend or alter the
    judgment and a motion for a new trial.4 The district court denied all of these
    motions, and Defendants appealed.
    STANDARD OF REVIEW AND APPLICABLE LAW
    We review the denial of a motion for judgment as a matter of law de novo.5
    Judgment as a matter of law is appropriate if “the court finds that a reasonable
    jury would not have a legally sufficient evidentiary basis to find for the party on
    that issue.”6 Under this standard, we consider all of the evidence “in the light
    and with all reasonable inferences most favorable to the party opposed to the
    motion.”7 Substantial evidence—defined as “evidence of such quality and weight
    that reasonable and fair-minded men in the exercise of impartial judgment
    might reach different conclusions”—must be presented by the non-moving party,
    4
    Defendants correctly argue that the district court erred in naming Connick, Dubelier,
    and Williams in the judgment and abused its discretion by denying their Rule 59(e) motion to
    alter or amend the judgment to correct this error. We have previously held that it is proper
    to dismiss allegations against municipal officers in their official capacities when the allegations
    duplicate claims against the governmental entity itself. See Castro Romero v. Becken, 
    256 F.3d 349
    , 355 (5th Cir. 2001) (noting that the official-capacity claims were duplicative of the claims
    against the governmental entities); cf. FED. R. CIV. P. 25(d) (providing that when a public
    officer is sued in his official capacity and then ceases to hold office, his successor is
    automatically substituted as a party). Because it is undisputed that the claims against
    Connick, Dubelier, and Williams, who are no longer employed at the District Attorney’s Office,
    are duplicative of the claims against the governmental entity, they should not have been
    named in the judgment.
    5
    Mullins v. TestAmerica, Inc., 
    564 F.3d 386
    , 403 (5th Cir. 2009).
    6
    FED. R. CIV. P. 50(a).
    7
    Boeing Co. v. Shipman, 
    411 F.2d 365
    , 374 (5th Cir. 1969) (en banc), overruled on other
    grounds by Gautreaux v. Scurlock Marine, Inc., 
    107 F.3d 331
    (5th Cir. 1997).
    11
    No. 07-30443
    and a “mere scintilla” is insufficient.8 “[A] jury’s freedom to draw reasonable
    inferences does not extend so far as to allow the jury to draw an inference which
    amounts to mere speculation and conjecture.”9 In reviewing the record, we “give
    credence to the evidence favoring the nonmovant as well as that evidence
    supporting the moving party that is uncontradicted and unimpeached.”10
    Because we are reviewing a Monell11 verdict against a government entity,
    our evidentiary review must take into account that § 1983 Monell liability is
    fundamentally different from an entity’s vicarious liability, predicated on
    respondeat superior, for its employees’ ordinary misconduct. Thus, when a
    plaintiff seeks to impose § 1983 liability on a municipality for its failure to train
    its employees, normal tort standards are replaced with heightened standards of
    culpability and causation.12 Liability will only attach if the municipality was
    deliberately indifferent to the constitutional rights of citizens—a showing of
    negligence or even gross negligence will not suffice.13 Errors of judgment do not
    alone prove deliberate indifference, nor is such heightened culpability
    established simply by showing that a municipality could have ordered more or
    different training or even misjudged whether training was necessary. Similarly,
    to satisfy causation, the plaintiff must demonstrate that the failure to train was
    the moving force behind the constitutional violation—“but for” causation is not
    8
    
    Id. 9 Nichols
    Constr. Corp. v. Cessna Aircraft Co., 
    808 F.2d 340
    , 352 (5th Cir. 1985)
    (quotation omitted).
    10
    Reeves v. Sanderson Plumbing Prods., Inc., 
    530 U.S. 133
    , 151 (2000) (quotation
    omitted).
    11
    Monell v. Dep’t of Soc. Servs., 
    436 U.S. 658
    (1978).
    12
    City of Canton v. Harris, 
    489 U.S. 378
    , 391 (1989).
    13
    
    Id. at 388
    & n.7.
    12
    No. 07-30443
    enough.14 The Supreme Court has repeatedly cautioned that if we neglect these
    stringent standards, we risk collapsing the distinction between vicarious liability
    and direct liability.15 Heightened standards also guard against the potentially
    “endless exercise of second-guessing municipal employee-training programs,” a
    task for which federal courts are ill suited.16
    A. Heightened Culpability: Deliberate Indifference
    Municipal liability attaches “where—and only where—a deliberate choice
    to follow a course of action is made from among various alternatives by city
    policymakers. Only where a failure to train reflects a ‘deliberate’ or ‘conscious’
    choice by a municipality—a ‘policy’ as defined by our prior cases—can a city be
    liable for such a failure under § 1983.”17 Because a municipality rarely decides
    not to train its employees out of sheer contempt for citizens’ rights, deliberate
    indifference must be proven circumstantially. Deliberate indifference “generally
    requires” a showing that the policymaker was made aware of the training
    deficiencies by “at least a pattern” of similar deprivations.18 Absent a pattern,
    in certain unique circumstances, the plaintiff can establish liability based upon
    a single violation of constitutional rights. In such a case, a failure to train
    constitutes municipal policy only where the need for training was “so obvious”
    that a failure to do so would mean that the policymaker was deliberately
    14
    Bd. of County Comm’rs of Bryan County v. Brown, 
    520 U.S. 397
    , 404 (1997)
    (hereinafter, Bryan County).
    15
    
    Id. at 415;
    City of 
    Canton, 489 U.S. at 391-92
    .
    16
    City of 
    Canton, 489 U.S. at 392
    .
    17
    
    Id. at 389
    (internal quotation and citation omitted).
    18
    Burge v. St. Tammany Parish, 
    336 F.3d 363
    , 370 (5th Cir. 2003) (finding no
    deliberate indifference as a matter of law with respect to sheriff’s office training on Brady
    obligations).
    13
    No. 07-30443
    indifferent to constitutional rights.19              A need for training is considered
    sufficiently obvious only when the deprivation of constitutional rights is a
    “highly predictable consequence” of the training deficiency.20                       “Deliberate
    indifference” implies a sense of callousness21 and is “treated, as it is elsewhere
    in the law, as tantamount to intent, so that inaction by a policymaker
    deliberately indifferent to a substantial risk of harm is equivalent to the
    intentional action that [the] setting [of] policy presupposes.”22 The Supreme
    Court has given us a hypothetical example of such callousness: giving untrained
    police officers firearms and ordering them to arrest fleeing suspects. In such a
    situation, the deprivation of constitutional rights, i.e., the use of excessive force,
    is a highly predictable consequence of the lack of training, and therefore the
    need for such training is sufficiently obvious.23
    Our court has considered single violation liability several times, and, with
    only one exception in some thirty years since Monell, has “consistently rejected
    application of the single incident exception.”24 The sole exception, Brown v.
    Bryan County, involved a failure to train a neophyte on the constitutional limits
    19
    City of 
    Canton, 489 U.S. at 390
    .
    20
    Bryan 
    County, 520 U.S. at 409
    ; see also City of 
    Canton, 489 U.S. at 396
    (O’Connor,
    J., concurring in part and dissenting in part) (finding that single incident liability for a failure
    to train only obtains where “[t]he constitutional duty of the individual officer is clear, and it
    is equally clear that failure to inform city personnel of that duty will create an extremely high
    risk that constitutional violations will ensue” (emphasis added)).
    21
    See Estelle v. Gamble, 
    429 U.S. 97
    , 106 n.14 (1976); Doe v. Taylor Indep. Sch. Dist.,
    
    15 F.3d 443
    , 453 (5th Cir. 1994).
    22
    Bryan 
    County, 520 U.S. at 419
    (Souter, J., dissenting) (internal footnote omitted).
    23
    City of 
    Canton, 489 U.S. at 390
    n.10.
    24
    Gabriel v. City of Plano, 
    202 F.3d 741
    , 745 (5th Cir. 2000); see also Cozzo v.
    Tangipahoa Parish Council—President Government, 
    279 F.3d 273
    , 288 (5th Cir. 2002) (“[T]his
    court has often rejected application of the single incident exception.”); Snyder v. Trepagnier,
    
    142 F.3d 791
    , 798 (5th Cir. 1998) (“[P]roof of a single violent incident ordinarily is insufficient
    to hold a municipality liable for inadequate training.”).
    14
    No. 07-30443
    to the use of force.25 The Brown court focused on the decision by the sheriff to
    place his nephew, a completely untrained new deputy, “on the street to make
    arrests.”26 Within a matter of weeks, the deputy unconstitutionally injured a
    citizen he was trying to arrest. This court concluded, based on an extensive list
    of factors, that “the jury reasonably could have concluded that Sheriff Moore
    made a conscious decision not to train [his nephew], yet still allowed him to
    make arrests.”27 There was “unmistakable culpability and clearly connected
    causation” sufficient to hold the municipality liable.28
    In Brown, the conscious decision was to not train a specific deputy, and the
    excessive use of force—which was the “highly predictable consequence” of failing
    to train the deputy—occurred soon after the officer went out on the streets.
    Several panels of this court, however, have reviewed cases where a decision not
    to train was made long before the alleged violation, and found that the lack of
    any similar violations indicates that a violation could not be the “highly
    predictable consequence” of failing to train.29 This approach reflects common
    25
    
    219 F.3d 450
    (5th Cir. 2000) (hereinafter, Brown). The facts of Brown demonstrate
    that single violation liability applies only in extreme circumstances. The offending officer had
    been on the job for only a few weeks and had no education or experience whatsoever in law
    enforcement. Moreover, shortly before joining the sheriff’s office, he had been arrested for
    several crimes, including assault and battery. In contrast, the assistant district attorneys
    involved in Thompson’s armed robbery case had three years of legal schooling, prosecutorial
    experience, and no history of past misconduct.
    26
    
    Id. at 458.
           27
    
    Id. (emphasis added);
    see 
    id. (listing seven
    specific factors that put the sheriff on
    notice that more training was needed).
    28
    
    Id. at 461.
    Brown said that “the evidence must withstand a vigorous test” for single
    violation liability to attach: (1) “it [must] have been obvious to [the policymaker] that the
    highly predictable consequence of not training” would be a constitutional violation, and (2)
    “this failure to train” must have been “‘the moving force’ that had a specific causal connection
    to the constitutional injury.” 
    Id. 29 See
    Rios v. City of Del Rio, 
    444 F.3d 417
    , 427 (5th Cir. 2006) (“Here there is no
    allegation of any prior incident in which [a similar violation occurred].”); Johnson v. Deep E.
    15
    No. 07-30443
    sense: if there have been thousands of opportunities for municipal employees to
    violate citizens’ constitutional rights, and yet there have been no previous
    violations, then the need for training is simply not “so obvious.”30
    B. Heightened Causation: Moving Force
    To safeguard the boundaries established in Monell, the Supreme Court has
    made clear that in addition to a heightened standard of culpability, plaintiffs
    must meet a heightened standard of causation in order to hold a municipality
    liable under § 1983.31 A § 1983 plaintiff must prove that the municipal entity’s
    custom or policy—in this case the failure to train—was the “moving force” that
    caused the specific constitutional violation; stated differently, the plaintiff must
    establish a “direct causal link” between the municipal policy and the
    constitutional injury.32 We have said that the “connection must be more than a
    Tex. Reg’l Narcotics Trafficking Task Force, 
    379 F.3d 293
    , 310 (5th Cir. 2004) (finding that “no
    similar incident had occurred in . . . ten years on the job” and that the evidence showed that
    officers generally followed the law); 
    Cozzo, 279 F.3d at 288
    (“[T]he elapsing of almost two
    decades without any [similar constitutional] complaint being lodged suggests that the
    inadequate training was not obvious and obviously likely to result in a constitutional
    violation.” (quotation omitted)); Conner v. Travis County, 
    209 F.3d 794
    , 797 (5th Cir. 2000)
    (“We can reasonably expect—if the need for training in this area was ‘so obvious’ and the
    failure to train was ‘so likely to result in the violation of constitutional rights’—that the
    [Plaintiffs] would be able to identify other instances of harm arising from the failure to train.
    The fact that they did not do so undercuts their deliberate indifference claim.”).
    30
    Of course, there will be situations in which we would not expect to see a pattern of
    violations. One example would be where the Supreme Court develops a new duty. See Walker
    v. City of New York, 
    974 F.2d 293
    , 300 (2d Cir. 1992) (focusing on the fact that Brady had been
    decided only seven years prior to the alleged violation). Another example would be where a
    municipality changes its policies or makes an exception to its general policies in deliberately
    choosing not to train an individual. See 
    Brown, 219 F.3d at 458
    & n.10 (finding that while no
    “formal policy of training” existed, the record indicated that the municipality hired only
    “trained and experienced” employees, though it had not adhered to that policy for the employee
    at issue). In the normal case, however, if there is a failure to train, we should expect to see a
    pattern of constitutional violations. If no such pattern can be shown, and no reason is given
    why a pattern does not exist, then the need for training simply is not “so obvious” as to amount
    to “deliberate indifference.”
    31
    City of 
    Canton, 489 U.S. at 391
    –92.
    32
    Bryan 
    County, 520 U.S. at 404
    .
    16
    No. 07-30443
    mere ‘but for’ coupling between cause and effect.”33 The deficiency in training
    must be the actual cause of the constitutional violation.
    Accordingly, the District Attorney must not be held liable simply because
    the culpable assistant district attorneys worked for him. “[A] municipality can
    be found liable under § 1983 only where the municipality itself causes the
    constitutional violation at issue.”34
    That this heightened standard is vital to maintaining Monell’s prohibition
    against vicarious liability in § 1983 cases has been clearly expressed by the
    Supreme Court:
    Where a court fails to adhere to rigorous requirements
    of . . . causation, municipal liability collapses into
    respondeat superior liability. As we recognized in
    Monell and have repeatedly reaffirmed, Congress did
    not intend municipalities to be held liable unless
    deliberate action attributable to the municipality
    directly caused a deprivation of federal rights. A failure
    to apply stringent culpability and causation
    requirements raises serious federalism concerns . . . .35
    And in City of Canton, the Supreme Court further said:
    To adopt lesser standards of fault and causation would
    open municipalities to unprecedented liability under
    § 1983. In virtually every instance where a person has
    had his or her constitutional rights violated by a city
    employee, a § 1983 plaintiff will be able to point to
    something the city “could have done” to prevent the
    unfortunate incident. See Oklahoma City v. 
    Tuttle, 471 U.S., at 823
    (opinion of Rehnquist, J.).         Thus,
    permitting cases against cities for their “failure to
    train” employees to go forward under § 1983 on a lesser
    standard of fault would result in de facto respondeat
    33
    Fraire v. City of Arlington, 
    957 F.2d 1268
    , 1281 (5th Cir. 1992).
    34
    City of 
    Canton, 489 U.S. at 385
    .
    35
    Bryan 
    County, 520 U.S. at 415
    (emphases added).
    17
    No. 07-30443
    superior liability on municipalities—a result we
    rejected in 
    Monell, 436 U.S., at 693
    –694. It would also
    engage the federal courts in an endless exercise of
    second-guessing municipal employee-training
    programs. This is an exercise we believe the federal
    courts are ill suited to undertake, as well as one that
    would implicate serious questions of federalism.36
    This exacting standard is even more crucial in cases where the municipal policy
    is said to be a failure to train.           Because such a “policy,” standing alone,
    implicates no constitutional violation, the “causal connection between municipal
    policy and the deprivation of constitutional rights becomes more difficult to
    discern.”37 Thus, a careful analysis is required to determine “whether a jury
    reasonably could conclude that the [municipality’s] conduct was the moving force
    in bringing about the constitutional violation.”38
    To summarize, the requirements for imposing liability upon a municipality
    for the individual acts of its employees are demanding.                      Relaxing these
    heightened requirements would cause significant harm to the interests
    underlying this demanding evidentiary principle: “adopt[ing] lesser standards
    of fault and causation would open municipalities to unprecedented liability,”
    “would result in de facto respondeat superior liability,” and would “engage the
    federal courts in an endless exercise of second-guessing municipal employee-
    training programs.”39 Therefore, we can hold a municipality liable only where
    the evidence demonstrates “unmistakable culpability and clearly connected
    causation” for the unconstitutional conduct of an individual employee.40
    36
    City of 
    Canton, 489 U.S. at 391-92
    .
    37
    City of Springfield v. Kibbe, 
    480 U.S. 257
    , 267 (1987) (O’Connor, J., dissenting).
    38
    
    Id. at 268
    (emphasis added).
    39
    City of 
    Canton, 489 U.S. at 391
    –92.
    40
    
    Brown, 219 F.3d at 461
    .
    18
    No. 07-30443
    DISCUSSION
    A. Sufficiency of the Evidence—Culpability
    The Brady violation here was a failure of one or more of the four assistant
    district attorneys involved with Thompson’s armed robbery prosecution to turn
    over the crime lab report to Thompson’s counsel.41 It is undisputed that the
    District Attorney’s Office did not provide formal in-house training regarding
    Brady.42 It is also undisputed that the assistant district attorneys were familiar
    with the general rule of Brady that evidence favorable to the accused must be
    disclosed to the defense.43 Thompson’s burden was to prove that Connick, the
    41
    Before the § 1983 trial, the parties stipulated that the failure to produce the lab
    report constituted a Brady violation. As a stipulated fact, whether this actually constituted
    a Brady violation is not now before the court.
    After an extensive review of the record, this is the only Brady violation that has been
    proven to have occurred during Thompson’s two trials. Thompson’s counsel had access to the
    evidence lockup, where the physical blood evidence was clearly recorded on the evidence card
    kept with the evidence. And Thompson’s claims of other Brady violations during his murder
    trial lack merit. Some of these claimed violations were examined during Thompson’s initial
    appeals and this court determined that they did not constitute Brady violations. See
    Thompson v. Cain, 
    161 F.3d 802
    , 805-08 (5th Cir. 1998). Other claimed disclosure violations
    have never been adjudicated to violate Brady.
    Other than making conclusory assertions, Judge Prado fails to address any of these
    other alleged violations in his opinion, or to indicate how non-disclosure of unrelated non-
    Brady material is at all relevant to the need for, or Connick’s indifference to, Brady training.
    42
    The District Attorney’s Office stipulated to the fact that no prosecutor remembered
    any formalized training on their Brady responsibilities.
    43
    The rule of Brady was directly written into the Louisiana Code of Professional
    Responsibility:
    With respect to evidence and witnesses, the prosecutor has responsibilities
    different from those of a lawyer in private practice: the prosecutor should make
    timely disclosure to the defense of available evidence, known to him, that tends
    to negate the guilt of the accused, mitigate the degree of the offense, or reduce
    the punishment. Further, a prosecutor should not intentionally avoid pursuit
    of evidence merely because he believes it will damage the prosecution’s case or
    aid the accused.
    Articles of Incorporation of the La. State Bar Assoc., art. 16, EC 7-13 (1971); see also 21A LA.
    REV. STAT. 213 (1974). And the American Bar Association included a rule on Brady when the
    Model Rules of Professional Conduct were published in 1983. See MRPC R. 3.8(d) (1983) (“The
    prosecutor in a criminal case shall . . . make timely disclosure to the defense of all evidence or
    information known to the prosecutor that tends to negate the guilt of the accused or mitigates
    19
    No. 07-30443
    policymaker for the Orleans Parish District Attorney’s office, was deliberately
    indifferent to the need to train prosecutors in their Brady disclosure obligations.
    As this circuit has recently recognized, “it is not enough for [Thompson] to
    show that the [District Attorney’s Office’s] training program is, in a general
    sense, wanting.”44 Instead, “the identified deficiency in a city’s training program
    must be closely related to the ultimate injury.”45 The plaintiff must prove an
    affirmative to the question: “Would the injury have been avoided had the
    employee been trained under a program that was not deficient in the identified
    respect?”46 Every prosecutor understood his general duty under Brady, so the
    identified deficiency was not a failure to train on this general duty, but was
    instead a failure to train on how to handle specific types of evidence such as the
    crime lab report at issue.
    There was evidence that some prosecutors doubted whether Brady itself
    obligated the production of evidence that was not necessarily exculpatory.47 This
    confusion seems to have arisen because the report itself had the potential to be
    either exculpatory or inculpatory—depending on whether it matched Thompson’s
    blood type.48 Accepting that there was no training on the Brady obligations
    the offense . . . .”). So, in addition to being common knowledge to prosecutors, Brady was
    written into the ethical rules as a duty incumbent upon every prosecutor.
    44
    Hinojosa v. Butler, 
    547 F.3d 285
    , 297 (5th Cir. 2008).
    45
    City of 
    Canton, 489 U.S. at 391
    .
    46
    
    Id. (emphasis added).
           47
    This doubt is understandable considering that no court prior to 1985 appears to have
    addressed the application of Brady under these circumstances. See infra note 52. The
    testimony, however, at trial indicated that the District Attorney’s own policy was to turn over
    such scientific reports, irrespective of Brady. Consequently, every prosecutor who testified
    stated that he would have disclosed this crime lab evidence to the defense.
    48
    There is no indication that the prosecutors knew Thompson’s blood type at the time
    of his attempted armed robbery trial.
    20
    No. 07-30443
    pertaining to potentially exculpatory crime lab reports, we must determine
    whether the need for that training was “so obvious” that a reasonable jury could
    find that Connick was “deliberately indifferent” to that need.
    Thompson did not show any pattern of similar Brady violations, and
    instead relies exclusively on this single incident where prosecutors failed to
    disclose his crime lab report. In another case before this court, we sustained the
    district court’s conclusion that twenty-five years of records involving this District
    Attorney’s Office (covering the time period of Thompson’s trial) revealed no
    pattern of Brady violations.49 Connick testified that the District Attorney’s
    Office handled tens of thousands of cases annually around this time, and that
    in the ten years prior to Thompson’s case, only four convictions were overturned
    based on Brady violations, none of which was similar to the violation at issue.50
    So in only a minute number of cases were convictions overturned based on Brady
    violations, and there was not a single instance involving the failure to disclose
    a crime lab report or other scientific evidence. Connick was not alerted to a need
    for   further     Brady      training—especially          not    this    specific     type    of
    Brady training—by previous violations at the District Attorney’s Office.51
    Nor has Thompson been able to refer us to a single reported opinion,
    issued before this 1985 prosecution, from the Supreme Court, any of the circuit
    49
    See Cousin v. Small, 
    325 F.3d 627
    , 637 (5th Cir. 2003) (“[A] small number of cases
    [with violations], out of thousands handled over twenty-five years, does not create a triable
    issue of fact with respect to Connick’s deliberate indifference to violations of Brady rights.”).
    50
    According to Connick, none of these cases involved the intentional suppression of
    evidence. In each case, the defense was aware of the existence of the evidence and requested
    production. The trial court then, in each case, ruled in favor of the State. These rulings,
    however, were all subsequently overruled by the Louisiana Supreme Court.
    51
    Judge Prado would refute this evidence with testimony from Connick that it was
    possible that Brady violations may have occurred in other cases. Yet Thompson bore the
    burden of proving Connick’s deliberate indifference; showing the mere possibility that other
    violations may have occurred is not enough to show that Connick was put on notice that
    additional training was required, let alone prove that the training was obviously necessary.
    21
    No. 07-30443
    or district courts, or any state court that involved a similar Brady violation and
    thus might have alerted Connick to the need for Brady training in this area.52
    Thompson instead points to the following as substantial evidence that the
    need for training in this area was “so obvious” that a failure to train constituted
    deliberate indifference. First, Thompson argues that Connick testified that he
    knew his prosecutors would frequently come into contact with Brady evidence.
    Second, many prosecutors testified that the law regarding Brady contains “gray
    areas.” Third, Thompson noted that several of the assistant district attorneys
    were only a few years out of law school. Thompson also points to intra-office
    discussions and opinions of various assistant district attorneys from 1999 and
    later about whether the lab report was evidence covered by Brady.
    This type of evidence amounts to no more than general observations that
    would apply to any area of law and any number of district attorney’s offices
    throughout the country. All district attorneys know that Brady issues—along
    with many other areas of constitutional law—are routine matters that their
    assistants handle every day. Every district attorney knows that nearly all issues
    he deals with are shaded with “gray areas,” whether they concern Brady, search
    and seizure, Miranda, evidence of a defendant’s other crimes, expert witnesses,
    sentencing, or many more.53 Incorrect prosecutorial decisions in any of these
    areas may lead to later reversal of convictions. Nearly all district attorney’s
    offices employ prosecutors only a few years out of law school. That there were
    different opinions about Brady evidence, or any other issue that may be raised
    52
    The only case pointed to as similar is a Tenth Circuit case decided in 1995, a decade
    after Thompson’s trial, which held that physical evidence that may have had exonerating blood
    on it should have been disclosed. See Smith v. Sec’y of N.M. Dep’t of Corr., 
    50 F.3d 801
    (10th
    Cir. 1995). This is the only case even arguably on point decided since Brady was issued in
    1963.
    53
    While we might often wish for simple-to-apply, bright-line rules, they are the
    exception rather than the norm, especially within our constitutional jurisprudence.
    22
    No. 07-30443
    among lawyers, should surprise no one. All of this evidence involves generic
    generalizations—not the type of exacting evidence required to show that Connick
    and the District Attorney’s Office were deliberately indifferent to an obvious
    need to further train its professional prosecutors. To the extent that this
    evidence could be used to show that the municipality’s training was, in a general
    sense, wanting, similar evidence could also support a deliberate indifference
    finding against any prosecutor’s office for nearly any error that leads to a
    reversal of a conviction.
    We cannot accept the argument that generalized failure to train evidence
    sustains a finding of official deliberate indifference.        In Pineda v. City of
    Houston,54 Judge Higginbotham squarely rejected a plaintiff’s argument that
    “‘because the City has admitted that specialized training is required for officers
    in such situations [specialized narcotics investigations], there is sufficient
    evidence that the training was inadequate.’ . . . No butterfly will emerge from
    this hollow chrysalis of an argument.”55
    Pineda relies on City of Canton, which displayed utmost caution toward
    generalized failure to train evidence:
    Neither will it suffice to prove that an injury or accident could have
    been avoided if an officer had had better or more training, sufficient
    to equip him to avoid the particular injury-causing conduct. Such
    a claim could be made about almost any encounter resulting in
    injury, yet not condemn the adequacy of the program to enable
    officers to respond properly to the usual and recurring situations
    with which they must deal. And plainly, adequately trained officers
    occasionally make mistakes; the fact that they do says little about the
    training program or the legal basis for holding the city liable.56
    54
    
    291 F.3d 325
    (5th Cir. 2002).
    55
    
    Id. at 334
    n.35.
    56
    City of 
    Canton, 489 U.S. at 391
    (emphasis added).
    23
    No. 07-30443
    Because this case concerns the actions of licensed attorneys who have
    independent professional obligations to know and uphold the law, there is even
    more reason than in City of Canton or Pineda not to rely on generalized
    statements about lack of training.         Training is what differentiates attorneys
    from average public employees. A public employer is entitled to assume that
    attorneys will abide by the standards of the profession, which include both
    ethical and practical requirements. Thus, prosecutors are personally responsible
    as professionals to know what Brady entails and when to perform legal research
    to understand the “gray areas.”57 To hold a public employer liable for failing to
    train professionals in their profession is an awkward theory. By analogy, it is
    highly unlikely that a municipality could be held liable for failing to train a
    doctor it employed in diagnostic nuances. Mere nostrums about training in
    Brady, a basic due process principle of criminal procedure, will not suffice.
    While Thompson has failed to produce any specific evidence relating to the
    obvious need for training on the identified deficiency, there is sufficient evidence
    to show that the need for training in this area was in fact not “so obvious.” This
    situation—with scientific evidence providing a blood type or other indicator of
    the perpetrator’s identity—occurs every time a crime lab report is prepared and
    blood or other scientific evidence has not been taken from the defendant. And
    yet Thompson failed to show any similar failures to disclose crime lab reports
    from this District Attorney’s Office either before his trial or since. The alleged
    failure to train extended over a long period of time, during which hundreds or
    thousands of crime lab reports were prepared.
    As a matter of probability, if violations were the “highly predictable
    consequence” of a failure to train, then we would expect to see more than just
    one violation in hundreds or thousands of cases. Thompson has, as a legal
    57
    See 
    Cousin, 325 F.3d at 638
    (“[P]rosecutors exercise independent judgment in trying
    a case, and they have the legal and ethical obligation to comply with Brady.”).
    24
    No. 07-30443
    matter, failed to prove that his violation was the “highly predictable
    consequence” of failing to train prosecutors. This means that the need for
    training was not “so obvious,” and thus that Connick was not “deliberately
    indifferent” to Thompson’s constitutional rights.58
    Indeed, three witnesses testified that the District Attorney’s Office had a
    policy of disclosing all crime lab reports. Dubelier testified that turning over
    crime lab reports was “standard operating procedure in the office.”59 Williams
    testified that “[y]ou have to turn over any scientific evidence that you have.”
    And Assistant District Attorney Val Solino testified that turning over crime lab
    reports was “the policy in the office.”60 While there was some confusion as to
    Brady obligations, every single witness who was asked stated that they would
    have disclosed the crime lab report had they known about it. This testimony was
    uncontradicted and unimpeached.61 Because the District Attorney’s Office had
    58
    As our court held in a similar case: “Because Burge failed to establish the existence
    of a single prior Brady violation, let alone demonstrate a pattern of violations sufficient to
    demonstrate deliberate indifference on the part of the sheriff, we find that no reasonable jury
    could have concluded that Sheriff Strain in his official capacity was deliberately indifferent to
    Burge’s right to a fair trial.” 
    Burge, 336 F.3d at 373
    .
    59
    Dubelier testified that: “If this report was not turned over, I didn’t see it.” He stated
    that: “I prosecuted thousands of cases when I was a DA and turned over thousands of these
    types of reports. If I had the report, I would have turned it over.” Dubelier continued by
    stating that it was standard procedure to disclose crime lab reports: “[W]e were obligated to
    turn over a crime lab report. That’s the way it was. That was standard operating procedure
    in the office. There are, again, records, I am sure, in the office of hundreds, if maybe not more
    cases where I turned over these type of reports. So my practice would have been to turn over
    the report.”
    60
    Solino was the Federal Rule of Civil Procedure 30(b)(6) representative in this case for
    the District Attorney’s Office. He was not employed in Connick’s office at the time of the
    Thompson attempted armed robbery trial. Solino testified that “I would have expected a
    prosecutor to turn that lab report over, period. That’s what I would have done and that’s what
    I would [have] expected them to have done under the policy in the office as I understood it at
    the time.”
    61
    See 
    Reeves, 530 U.S. at 150
    –51. Judge Prado states that this evidence of a policy of
    disclosing scientific reports is contradicted by uncertainty about whether the report at issue
    was Brady material. But evidence of an open-file policy would not be contradicted by
    25
    No. 07-30443
    a policy of disclosing all crime lab reports, there was no need to train on the
    specifics of which reports would or would not be covered by Brady. Just as a
    municipal policymaker could not be found deliberately indifferent to citizens’
    Brady rights if the policymaker established clear policies—such as an open-file
    policy—to protect those rights, Connick cannot be considered “deliberately
    indifferent” to a Brady violation based on a failure to disclose a crime lab report
    when his employees generally understood that they had to disclose exactly those
    types of reports.
    For these reasons, under Monell, City of Canton, and Bryan County, the
    evidence in this record does not support the conclusion that Connick was
    deliberately indifferent to an obvious need for training. Consequently, the
    District Attorney cannot be held liable for the failure by his employees to
    disclose this crime lab report.
    B. Sufficiency of the Evidence—Causation
    Nor does the diffuse evidence of Brady misunderstanding among several
    assistant district attorneys satisfy the causation requirements relating to the
    violation at issue here. The specific question we ask is whether Connick’s failure
    to provide in-house training was the moving force behind the failure to turn over
    the lab report. Stated differently, the question is whether, under the teachings
    of City of Canton and Bryan County, unfamiliarity with Brady obligations with
    respect to this lab report was the actual cause—the moving force—of this
    constitutional violation. This standard of causation must be established by
    uncertainty over whether any particular piece of the file was Brady material. In fact, many
    District Attorney’s Offices have blanket disclosure policies specifically so that prosecutors need
    not make difficult Brady decisions. Judge Prado then goes on to state that this evidence is
    contradicted by evidence of a policy not to disclose certain police reports and witness
    statements. But there is nothing contradictory in having a policy to disclose one type of report
    alongside a policy not to disclose an entirely different type of report. Judge Prado is
    contradicting apples with oranges; there is simply no evidence in the record which refutes the
    testimony of these witnesses that there was a policy of disclosing lab reports and
    scientific evidence.
    26
    No. 07-30443
    substantial evidence. If Thompson did not submit substantial evidence that the
    failure to produce the lab report was caused by confusion over Brady, the jury
    could not have reasonably concluded that the lack of training was the direct
    cause of Thompson’s injury, and judgment as a matter of law is required.
    The record leaves many unanswered questions about the actual cause of
    this constitutional violation. It is, however, clear that four assistant district
    attorneys were involved in the failure to produce the lab report. They were
    Bruce Whittaker, James Williams, Gerry Deegan, and Eric Dubelier. The failure
    to produce the lab report lies with one or more of these assistant district
    attorneys. We turn now to examine what the record reflects as to these
    assistants.
    Whittaker, as the armed robbery “screener,” was responsible for initially
    reviewing the police file on Thompson, deciding whether to prosecute, and
    assigning the case to the correct division. He “screened” Thompson’s file on
    February 25, 1985—approximately five weeks after Thompson had been
    arrested. The police report indicated that evidence had been collected from the
    crime scene that possibly contained the perpetrator’s blood.        Accordingly,
    Whittaker wrote “May wish to do blood tests,” on the screening action form.
    After Whittaker screened the case, Dubelier, an experienced assistant
    district attorney, was assigned as lead prosecutor, and Deegan was assigned as
    the junior assistant on the case. Dubelier had no independent recollection of the
    armed robbery prosecution that had occurred twenty years earlier, but the
    record indicates that he and Deegan handled most of the pre-trial work.
    Williams did not become involved with the case until March 11 when Dubelier
    asked him to handle a pre-trial evidentiary hearing. During this hearing,
    Williams, based on his review of the screening action form, announced to the
    court and Thompson’s counsel that the prosecution intended to test Thompson’s
    blood. However, no such test was ever ordered by the prosecution. Later,
    27
    No. 07-30443
    sometime before the April 11 trial,62 Dubelier asked Williams to take over trial
    responsibility for the case.
    There is no testimony in the record from Deegan, who died several years
    before Thompson instituted this action. The record does contain, however, an
    affidavit and testimony from his colleague and close friend Michael Riehlmann.
    According to Riehlmann, shortly after Deegan was diagnosed with terminal
    cancer, Deegan confessed “that he had intentionally suppressed blood evidence
    in the armed robbery trial of John Thompson that in some way exculpated the
    defendant.”63 Deegan’s confession is, in part, supported by the evidence card, a
    card on file that identified the physical evidence in the case. The card indicates
    that the morning the trial was set to begin, Deegan checked out the blood
    evidence and never returned it.
    As for the lab report itself, the record is not clear who ordered the testing.
    The report was dated April 9, just two days before trial, and addressed to
    Whittaker. Whittaker recalled seeing the report and placing it on Williams’s
    desk.        Because he was only the screening prosecutor, Whittaker was not
    responsible for turning it over to the defense. Williams and Dubelier both
    testified that they never saw the report. Riehlmann’s account of Deegan’s
    confession is not clear whether Deegan was referring to the lab report, to the
    actual blood evidence, or to both.
    The statements of these four assistant district attorneys—the only
    prosecutors who had any involvement in the armed robbery case—provide very
    little information regarding the lab report. What is clear from the record is this:
    first, Whittaker received the report a few days before trial; second, no prosecutor
    62
    Williams testified that Dubelier asked him to take over the case just a few days before
    trial. Dubelier, however, could not recall when he asked Williams to take over, and he testified
    that it would have been very odd to make such a change only a few days before trial.
    63
    At trial, Riehlmann’s testimony was more equivocal: he stated that Deegan told him
    “that he had failed to turn over stuff that might have been exculpatory.”
    28
    No. 07-30443
    ever turned it over to Thompson’s counsel; and third, the report did not appear
    again until it was discovered fourteen years later.
    Thompson based his case upon a single causation theory: that one or more
    of the assistant district attorneys involved in Thompson’s prosecution decided
    not to turn over the report because they did not know that they were legally
    obligated to produce it and that training sessions on Brady would have avoided
    this incident.64     To prove his theory, Thompson must present substantial
    evidence from which a jury reasonably could conclude that the failure of Connick
    to provide training sessions on Brady was the actual cause of and the moving
    force behind the failure to produce the report.                   The precedents require
    substantial evidence of direct causation. This standard demands more than
    evidence of confusion over Brady’s “gray areas” in the District Attorney’s Office.
    Finally, Thompson must establish that this lack of understanding would have
    been remedied by an in-house training program.
    Thompson’s brief fails to point out any such evidence to sustain municipal
    liability. As best we understand his brief, the only arguments he makes
    regarding causation are these: (1) the record supports the conclusion that these
    four prosecutors knew about the blood evidence and yet failed to disclose it;65 and
    (2) the jury was free to reject Connick’s theory of a single rogue prosecutor. Even
    if we accept both of these assertions as correct, they still fail completely to
    establish that the Brady violation was caused by unfamiliarity with Brady. And
    64
    Yet, we must observe that the record does not reflect whether a decision to produce,
    or not produce, the report was ever made, or whether the report was misplaced or overlooked,
    or whether one or more of the four prosecutors assumed it would be handled by someone else.
    65
    For example, Thompson’s brief states, “It is also not surprising that at least four
    prosecutors—Dubelier, Williams, Whittaker, and Deegan—knew about the blood evidence yet
    each failed to disclose it.” And, “Dubelier, the special prosecutor in charge of both cases, knew
    but chose not to reveal there was blood evidence.” And, “Based upon that evidence, the jury
    was free to infer that both Whittaker and Williams received the crime lab report, but did not
    produce it.”
    29
    No. 07-30443
    because Thompson bore the burden of proof, he had to do more than simply
    assert that the jury was free to reject Connick’s explanations for the violation.
    Thompson had to put forth substantial evidence supporting his own theory of
    causation: that the assistant district attorney (or attorneys) responsible for the
    constitutional violation did not understand Brady, that this lack of
    understanding caused the failure to produce the report, and that Brady training
    could have resolved this lack of understanding.
    We have reviewed the record for any such evidence. First, it contains
    evidence that Williams, when asked if Brady material includes documents that
    could be used to impeach a government witness, incorrectly replied “No.”66
    Second, the 1987 policy manual from the District Attorney’s Office could be read
    to imply that Brady evidence need only be produced when the defense requests
    it and it fails to note that impeachment evidence is also included under Brady.
    Third, Solino and Connick, after the report was discovered, contended that the
    lab report was not subject to Brady as such because Thompson’s blood type was
    unknown and the report thus had no exonerative effect on Thompson’s guilt.
    Fourth, although Williams stated unequivocally that all technical or scientific
    reports, like the lab report, were required to be turned over to a defendant, he
    also testified that this obligation did not necessarily arise from Brady because
    the report was not necessarily exculpatory.67
    66
    See Giglio v. United States, 
    405 U.S. 150
    (1972) (holding that Brady requires the
    production of evidence that could be used to impeach a government witness).
    67
    Thompson seeks to bolster the evidence of a link between the lack of formal
    Brady training and non-disclosure of the lab report with evidence of other allegedly illegal
    failures by the prosecutors to turn over evidence to his counsel in the murder case. This
    attempt fails for several reason. First, as has been 
    noted, supra
    n.41, none of the other non-
    disclosures has been held to violate Brady—or any other legal rule. It is a non-sequitur to say
    that failure to train on Brady had anything to do with failure to disclose non-Brady evidence.
    Second, without proof of the illegality of the nondisclosures, Thompson cannot rely on them to
    prove systemic lack of training about Brady obligations. Third, the more general notion of a
    “culture of indifference” toward a district attorney’s disclosure obligations is a description
    30
    No. 07-30443
    The record fails to establish, by substantial evidence, that the actual cause
    and moving force behind the constitutional violation of not producing the lab
    report was the failure of the District Attorney to have in-house training sessions
    on Brady. For example, an assistant district attorney’s confusion regarding
    whether Brady applied to impeachment evidence may show a need for
    enlightening this assistant but is irrelevant here because the lab report clearly
    was not impeachment evidence and would not have been turned over on that
    basis. The policy manual, although incomplete in its instructions on Brady
    evidence and post-dating Thompson’s trial by several years, does little to
    establish the necessary direct causal link, and the jury concluded in its verdict
    that the violation was not due to an established municipal policy.
    Thus, even assuming that Connick was deliberately indifferent to a need
    for training, Thompson failed as a matter of law to show that the lack of training
    was the actual cause of the constitutional violation.68 Therefore the judgment
    should be reversed and rendered for the defendant.
    C. Jury Instructions
    The jury was probably misled in its decision by the district court’s plainly
    erroneous jury instructions. After several hours of deliberations, the jury sent
    out a single question:
    rather than a legal rule. It has no support in caselaw and is inconsistent with the lack of
    pattern evidence in this case. Finally, if there was or could be municipal culpability founded
    on a “culture of indifference” to Brady violations, it speaks to the District Attorney’s
    policy—but the jury rejected Thompson’s unconstitutional policy theory!
    68
    Judge Prado states that we have ignored evidence about causation. But a careful
    review of the panel opinion reveals that while Judge Prado discusses extensively how the jury
    was free to reject Connick’s alternative arguments, he fails to point to substantial evidence
    from which the jury could conclude that a failure to train was the moving force behind this
    violation. Considering the record as a whole, as we must, and keeping in mind that Thompson
    bore the burden of showing such substantial evidence, we conclude that Thompson has failed
    to present sufficient evidence for any reasonable jury to conclude that Connick’s deliberate
    indifference was the moving force behind this Brady violation.
    31
    No. 07-30443
    What does “Deliberate” Indifference mean? Does it mean intentional
    or would “Failure to monitor” be considered Deliberate?
    The district court responded that:
    “Deliberate Indifference” does not necessarily mean intentional, but
    does require more than mere negilgence [sic] or even gross
    negligence.69
    The district court’s answer lacked “concrete accuracy,”70 and instead defined
    deliberate indifference as something less than intent but more than
    negligence—a nebulous answer that failed to sufficiently inform the jury of the
    controlling law.71        Nor was there any clarification in the original jury
    instructions, which failed to state that municipal liability requires a “conscious”
    or “deliberate” choice on the part of the policymaker.
    By failing to clearly define “deliberate indifference,” the instructions were
    confusing and misleading. The instructions erroneously omitted the clear and
    obvious requirement laid down by the Supreme Court in City of Canton that
    “[o]nly where a failure to train reflects a ‘deliberate’ or ‘conscious’ choice by a
    municipality—a ‘policy’ as defined by our prior cases—can a city be liable for
    such a failure under § 1983.”72 This en banc court has previously held that
    69
    Nowhere did the district court give the legal definitions for “negligence” or “gross
    negligence.” So while this instruction provides as least some minor guidance to the trained
    legal mind, it provides extraordinarily little clarity to the average juror.
    70
    United States v. Stevens, 
    38 F.3d 167
    , 169–70 (5th Cir. 1994) (“When a deliberating
    jury expresses confusion and difficulty over an issue submitted to it, the trial court’s task is to
    clear that confusion away with concrete accuracy.” (quotation omitted)).
    71
    Even Judge Prado’s arguments and selective quotations, while not fully reflecting the
    case law of either the Supreme Court or this circuit, would have provided greater guidance to
    this uncertain jury than the answer given by the district court.
    
    72 489 U.S. at 389
    (internal quotation omitted). See also City of Oklahoma City v.
    Tuttle, 
    471 U.S. 808
    , 823 (1985) (plurality) (“[T]he word ‘policy’ generally implies a course of
    action consciously chosen from among various alternatives; . . . evidence [must] be adduced
    which proves that the inadequacies resulted from conscious choice—that is, proof that the
    policymakers deliberately chose a training program which would prove inadequate.” (emphasis
    added)); Estate of Davis ex rel. McCully v. City of North Richland Hills, 
    406 F.3d 375
    , 383 (5th
    32
    No. 07-30443
    deliberate indifference is a “lesser form of intent.”73 The district court failed in
    its duty to incorporate these governing rulings when it issued jury instructions.
    Although the plain error standard limits appellate review here because no
    proper objection was made to the instructions, we believe that standard was
    met.74 The district court’s failure to correctly instruct the jury was clearly and
    obviously inconsistent with the law, and this error affected the Defendant’s
    substantial rights by allowing liability without any actual municipal
    “culpability.”
    Finally, plain error is to be corrected if the “error seriously affects the
    fairness, integrity or public reputation of judicial proceedings.”75 “The jury
    system is premised on the idea that rationality and careful regard for the court’s
    instructions will confine and exclude jurors’ raw emotions.”76 As noted above,
    the Supreme Court has specifically warned that reducing the standards of fault
    in municipal liability cases would “impose de facto respondeat superior liability”
    and raise “serious questions of federalism.”77 Correctly instructing the jury on
    the applicable standard of fault is particularly important in municipal liability
    cases which involve the public purses of our cities and local governments. In this
    case, nebulous jury instructions authorized a verdict manifestly unfair to these
    Defendants and plainly inconsistent with the Supreme Court’s and our relevant
    Cir. 2005) (“[A] showing of deliberate indifference requires that the Plaintiffs show that the
    failure to train reflects a ‘deliberate’ or ‘conscious’ choice to endanger constitutional rights.”
    (quotation omitted)).
    73
    Doe v. Taylor Indep. Sch. Dist., 
    15 F.3d 443
    , 453 n.7 (5th Cir. 1994) (en banc).
    74
    See Puckett v. United States, 
    129 S. Ct. 1423
    , 1429 (2009); see also Wright v. Ford
    Motor Co., 
    508 F.3d 263
    , 272 (5th Cir. 2007).
    75
    
    Puckett, 129 S. Ct. at 1429
    (quotation and alteration omitted).
    76
    CSX Transp., Inc. v. Hensley, 
    129 S. Ct. 2139
    , 2141 (2009).
    77
    See City of 
    Canton, 489 U.S. at 392
    ; see supra notes 35–36 and accompanying text.
    33
    No. 07-30443
    precedent. The verdict also undermines the will of Congress expressed in §
    1983.78
    We urge this point in further explanation of this unjustifiable verdict and
    to discourage other district courts from making similar mistakes.
    CONCLUSION
    Judgment as a matter of law “is a method for protecting neutral principles
    of law from powerful forces outside the scope of law—compassion and
    prejudice.”79 We fully appreciate that Thompson has suffered a horrible wrong
    inflicted by agents of the government and that in many cases the principal would
    be responsible for the acts of these agents. But as Judge Wisdom counseled
    when overturning a jury verdict, “[i]n reviewing [a] . . . case when the plaintiff
    has been injured grievously, hard as our sympathies may pull us, our duty to
    maintain the integrity of substantive law pulls harder.”80 The Supreme Court
    has stated clearly and emphatically that the liability of municipalities is limited
    to cases where a municipal action caused the constitutional violation. The
    plaintiff must show the “requisite degree of culpability” on the part of the
    municipality—deliberate indifference to an obvious need for training—and must
    demonstrate a “direct causal link” between the failure to train and the
    constitutional violation.81
    78
    See Bryan 
    County, 520 U.S. at 400
    (“[I]n enacting § 1983, Congress did not intend to
    impose liability on a municipality unless deliberate action attributable to the municipality itself
    is the ‘moving force’ behind the plaintiff’s deprivation of federal rights.”).
    79
    Rutherford v. Ill. Cent. R.R. Co., 
    278 F.2d 310
    , 312 (5th Cir. 1960).
    80
    Turner v. Atl. Coast Line R.R. Co., 
    292 F.2d 586
    , 589 (5th Cir. 1961). Judge Prado
    rightly puts great faith in the Seventh Amendment right to a jury trial. But we also have a
    duty to maintain the integrity of our substantive law. Regrettably, Judge Prado has chosen
    not to engage with many of these arguments, or with the substantive law more generally,
    despite the Supreme Court’s clear warnings that we must preserve the heightened evidentiary
    standards of municipal liability. See supra notes 35–36 and accompanying text.
    81
    Bryan 
    County, 520 U.S. at 404
    .
    34
    No. 07-30443
    Thompson failed to produce substantial evidence to support his claim that
    the District Attorney was deliberately indifferent to an obvious need for training
    of his staff. And he failed to produce adequate evidence of causation to show
    that the failure to train was the actual cause and moving force behind the failure
    to produce the lab report. Thompson has, in short, failed to meet the heightened
    standards for culpability and causation imposed by Monell, City of Canton, and
    Bryan County, and we would therefore reverse the district court’s judgment.
    35
    No. 07-30443
    PRADO, Circuit Judge, with whom KING, WIENER, STEWART, and ELROD,
    Circuit Judges, join:
    “The right of jury trial in civil cases at common law is a basic and
    fundamental feature of our system of federal jurisprudence which is protected
    by the Seventh Amendment. A right so fundamental and sacred to the citizen,
    whether guaranteed by the Constitution or provided by statute, should be
    jealously guarded by the courts.” Jacob v. City of New York, 
    315 U.S. 752
    , 752-
    53 (1942).
    The panel opinion thoroughly explains why the evidence the jury heard in
    this case is sufficient to support its verdict. See Thompson v. Connick, 
    553 F.3d 836
    (5th Cir. 2008). Judge Clement’s dissent (“the dissent”) to this court’s order
    affirming based on a tie en banc vote, however, overlooks much of the evidence
    the jury heard and ignores the standard of review that we apply to jury verdicts.
    By reading the dissent, one would be hard pressed to even realize that a
    jury rendered the verdict in this case. At the outset, the dissent attempts to
    explain the standard of review but fails to acknowledge the deference we must
    accord to a jury’s verdict. We have repeatedly admonished that
    our standard of review with respect to a jury verdict is especially
    deferential. As such, judgment as a matter of law should not be
    granted unless the facts and inferences point so strongly and
    overwhelmingly in the movant’s favor that reasonable jurors could
    not reach a contrary conclusion.
    Flowers v. S. Reg’l Physician Servs. Inc., 
    247 F.3d 229
    , 235 (5th Cir. 2001)
    (internal quotation marks and citations omitted). “A jury verdict must be upheld
    unless there is no legally sufficient evidentiary basis for a reasonable jury to find
    as the jury did.” Int’l Ins. Co. v. RSR Corp., 
    426 F.3d 281
    , 296-97 (5th Cir. 2005)
    (internal quotation marks omitted). We must view the evidence the jury heard
    with this deferential standard in mind.
    36
    No. 07-30443
    A review of the full record—as laid out in the panel opinion—reveals that
    the dissent is merely quibbling with the jury’s factual findings. See 
    Thompson, 553 F.3d at 843-46
    . This oversteps our bounds as an appellate court. The
    dissent presents nothing more than a skewed version of the facts in favor of the
    District Attorney’s Office. Its approach is directly contrary to the rule that we
    must view all evidence and draw all reasonable inferences in favor of the jury’s
    verdict. See United States v. Miles, 
    360 F.3d 472
    , 476-77 (5th Cir. 2004); Am.
    Cas. Co. of Reading, Pa. v. Myrick, 
    304 F.2d 179
    , 182 (5th Cir. 1962) (“[I]n
    reviewing a jury’s verdict a court may not substitute its judgment on the facts
    for the jury’s determination simply because inconsistent and uncertain
    inferences are equally supported by the proof.”). The dissent thus ignores the
    maxim that the jury is allowed to accept or reject competing evidence. See
    Reeves v. Sanderson Plumbing Prods., Inc., 
    530 U.S. 133
    , 150 (2000) (noting that
    in reviewing a jury’s verdict an appellate court “may not make credibility
    determinations or weigh the evidence”).
    For example, the dissent states that evidence regarding whether Connick
    had a policy to disclose crime lab reports was “uncontradicted and
    unimpeached.” See dissent at 25-26. However, ADA James Williams testified
    that he did not have a Brady duty to disclose crime scene technician reports and
    equivocated regarding the disclosure of blood reports if he did not know the
    perpetrator’s blood type, which is the exact situation he faced when prosecuting
    Thompson. R. at 2353-54 (suggesting that the crime lab report was not Brady
    material “because I didn’t know what the blood type of Mr. Thompson was, and
    I didn’t know what the blood type of Mr. LaGarde [the victim of the robbery]
    was”). Similarly, Williams explained that Connick had a policy not to disclose
    certain police reports and witness statements, contradicting his testimony that
    he had to turn over all written reports generated in a case. Compare R. at 2027,
    with R. at 2354.      Val Solino, the DA’s Office’s official Rule 30(b)(6)
    37
    No. 07-30443
    representative, stated that under Connick’s Brady policy, even as later
    memorialized in a 1987 manual, an ADA in Connick’s office would not have had
    to produce a crime lab report if he did not know the defendant’s blood type. R.
    at 2874-75. As another example, the dissent minimizes the evidence the jury
    heard regarding the District Attorney’s other Brady violations in this and other
    cases. The dissent manages to highlight Connick’s testimony that the Louisiana
    Supreme Court had overturned only four convictions based on a Brady violation
    during his tenure as District Attorney, but fails to acknowledge Connick’s
    concession that because most Brady violations typically do not lead to published
    opinions, Brady violations had likely occurred in other cases as well. R. at 2823-
    25. Similarly, by discounting the numerous other examples of nondisclosure
    that occurred in this case (in addition to the nondisclosure of the crime lab
    report)—examples that Thompson presented to the jury without objection—the
    dissent ignores the fact that the jury could consider these other events1 as
    further proof of the need for and Connick’s indifference to training on Brady.
    In another attempt to overturn the jury’s verdict, the dissent simply
    ignores evidence about causation. As discussed fully in the panel opinion, the
    evidence permitted the jury to find that Connick’s deliberate indifference caused
    the Brady violations in this case. See 
    Thompson, 553 F.3d at 853-57
    . Thus, the
    only way the dissent can reach its desired result is by departing from our
    deferential standard, reading the record selectively to support its position, and
    substituting its own judgment for that of the jury’s.
    1
    These other examples included, inter alia, the nondisclosure of eyewitness statements.
    As this case evidences, many Brady violations are not uncovered until years after the event,
    if they are ever uncovered. In Kyles v. Whitley, 
    514 U.S. 419
    (1995), the Supreme Court
    concluded that the nondisclosure of similar eyewitness statements by this very office within
    a year prior to Thompson’s first murder trial violated Brady. These statements did not come
    to light until five years after Kyles’s trial.
    38
    No. 07-30443
    Finally, the dissent acknowledges that Connick did not preserve his
    objection to the jury instructions but still attempts to support a conclusion that
    the district court plainly erred in its instruction on deliberate indifference. As
    the panel opinion explains, however, the district court’s instructions were legally
    correct—and certainly not so “clearly” or “obviously” wrong as to constitute plain
    error. See 
    Thompson, 554 F.3d at 859-63
    .
    Deliberate indifference and intent are not synonymous. They are instead
    separate, albeit sometimes legally equivalent, concepts. See Bd. of the County
    Comm’rs of Bryan County v. Brown, 
    520 U.S. 397
    , 419 (1997) (“Deliberate
    indifference is thus treated, as it is elsewhere in the law, as tantamount to
    intent, so that inaction by a policymaker deliberately indifferent to a substantial
    risk of harm is equivalent to the intentional action that setting policy
    presupposes.”). One need not show actual intent for a jury to find liability under
    the deliberate indifference standard. In Hope v. Pelzer, 
    536 U.S. 730
    (2002), the
    Supreme Court clarified that the fact-finder can infer deliberate indifference
    “from the fact that the risk of harm is obvious.” 
    Id. at 738
    (citing Farmer v.
    Brennan, 
    511 U.S. 825
    , 842 (1994)); see also 
    Farmer, 511 U.S. at 841
    (noting that
    the test from City of Canton v. Harris, 
    489 U.S. 378
    (1989), for deliberate
    indifference is an “objective standard”).      This court also has stated that
    deliberate indifference is “a lesser form of intent.” Doe v. Taylor Indep. Sch.
    Dist., 
    15 F.3d 443
    , 453 n.7 (5th Cir. 1994) (internal quotation marks omitted)
    (emphasis added). A finding of deliberate indifference is thus tantamount to a
    finding of intent in the context of municipal liability, but a finding of deliberate
    indifference does not require a finding of intent—which is exactly what the
    district court instructed the jury in light of this precedent. See 
    Thompson, 553 F.3d at 859-63
    . The dissent improperly adds this intent element, thereby
    recasting the meaning of deliberate indifference so as to assign error to the
    district court.
    39
    No. 07-30443
    At bottom, the dissent seeks to retry this case through the appellate
    process. This approach abdicates this court’s duty to uphold a jury’s verdict
    unless the facts point so strongly in Connick’s favor that no reasonable jury
    could rule to the contrary. See 
    Flowers, 247 F.3d at 235
    . Indeed, the fact that
    reasonable judges on this court view the evidence differently suggests that these
    factual disputes were for the jury to resolve. As the extensive discussion in the
    panel opinion demonstrates, there was ample evidence to allow the citizens of
    this New Orleans jury to find for Thompson. Of course, this is an extraordinary
    case with extraordinary facts. Allowing this judgment to stand will not subject
    municipalities to widespread liability, as a holding that the need for training was
    “so obvious” and the lack of training “so likely” to create a constitutional
    violation will apply only in the rare instance. This is that rare case. The jury
    heard substantial evidence that the District Attorney’s Office provided no Brady-
    specific training, despite the known risk of the exact type of systemic
    nondisclosure that the failure to train caused here. Acknowledging the proper
    standard of review and viewing the jury’s verdict in the correct deferential light
    compels us to uphold the jury’s decision.
    40
    41
    

Document Info

Docket Number: 07-30443

Citation Numbers: 553 F.3d 836

Filed Date: 8/28/2009

Precedential Status: Precedential

Modified Date: 3/3/2016

Authorities (45)

Estate of Davis Ex Rel. McCully v. City of North Richland ... , 406 F.3d 375 ( 2005 )

Cousin v. Small , 325 F.3d 627 ( 2003 )

Board of the County Commissioners of Bryan County v. Brown , 117 S. Ct. 1382 ( 1997 )

Reeves v. Sanderson Plumbing Products, Inc. , 120 S. Ct. 2097 ( 2000 )

Puckett v. United States , 129 S. Ct. 1423 ( 2009 )

CSX Transportation, Inc. v. Hensley , 129 S. Ct. 2139 ( 2009 )

Frances H. Turner, as Guardian for Frank N. Turner v. ... , 292 F.2d 586 ( 1961 )

Raymond L. Rutherford v. Illinois Central Railroad Company , 278 F.2d 310 ( 1960 )

Thompson v. Connick , 553 F.3d 836 ( 2008 )

State v. Thompson , 825 So. 2d 552 ( 2002 )

jill-brown-plaintiff-appellee-cross-appellant-v-bryan-county-ok-bryan , 219 F.3d 450 ( 2000 )

Monell v. New York City Dept. of Social Servs. , 98 S. Ct. 2018 ( 1978 )

City of Springfield v. Kibbe , 107 S. Ct. 1114 ( 1987 )

Kyles v. Whitley , 115 S. Ct. 1555 ( 1995 )

Hinojosa v. Butler , 547 F.3d 285 ( 2008 )

Johnson v. Deep East Texas Regional Narcotics Trafficking ... , 379 F.3d 293 ( 2004 )

City of Canton v. Harris , 109 S. Ct. 1197 ( 1989 )

Estelle v. Gamble , 97 S. Ct. 285 ( 1976 )

Giglio v. United States , 92 S. Ct. 763 ( 1972 )

Farmer v. Brennan , 114 S. Ct. 1970 ( 1994 )

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