Life Sentences Blog

In Supreme Court cases, the majority and dissent sometimes talk right past one another, framing the question for decision so differently that they almost seem to be writing about different cases.  See, e.g., the dueling opinions earlier this week in Connick v. Thompson (No. 09-571).  Thompson was convicted of attempted armed robbery and murder, and then sentenced to death.  A month before his execution, a bloodstained swatch of cloth came to light that proved Thompson was not the perpetrator in the robbery prosecution.  The murder charge was eventually retried, and Thompson was acquitted.  In all, he served 18 years in prison based on his wrongful convictions.  Moreover, it turns out that an assistant district attorney who was part of the team that prosecuted Thompson deliberately withheld the swatch.  The District Attorney’s office now concedes that Thompson’s constitutional rights were violated under Brady v. Maryland.  The question now is whether the DA’s office should be civilly liable to Thompson for this violation.

Prior cases interpreting 42 U.S.C. § 1983 (the federal civil rights law Thompson invoked in his lawsuit) reject vicarious liability for the government when a government employee violates consitutional rights; in order to recover, as matters unfolded, Thompson was obliged to show that the District Attorney had been deliberately indifferent to a need to train his subordinates regarding their Brady responsibilities.  Prior cases also establish that a “failure to train” claim must ordinarily be based on multiple violations of constitutional rights; a single violation, such as that suffered by Thompson, would require extraordinary circumstances to justify relief.

So much everyone agreed on.

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Earlier this week, the Supreme Court agreed to hear a case presenting questions about civil liability for false grand-jury testimony.  The Court has previously held that grand-jury witnesses benefit from absolute immunity for their testimony, Briscoe v. LaHue, 460 U.S. 325 (1983), but at least two circuits have since carved out an exception for complaining witnesses.  This exception is based on Malley v. Briggs, 475 U.S. 335 (1986), in which the Court refused to extend absolute immunity to a police officer who maliciously drew up a false complaint in support  of an arrest warrant.  Although two circuits have concluded that the logic of Malley also applies to a false “complaint” that takes the form of grand-jury testimony, at least two other circuits have held that the general immunity rule from Briscoe applies without regard to the nature of the testimony or the witness.

The Court will apparently now try to resolve the split in Rehberg v. Paulk (No. 10-788).  The opinion below is at 611 F.3d 828 (11th Cir. 2010).  Here are the facts.  A grand jury indicted Charles Rehberg on three separate occasions in 2005 and 2006, but each time the indictment was ultimately dismissed.  Police officer James Paulk was the chief complaining witness against Rehberg in the three grand-jury proceedings.  Rehberg then filed a civil compaint against Paulk in federal court under 42 U.S.C. § 1983, alleging that Paulk violated his constitutional rights through malicious prosecution.  Although the complaint named other defendants and presented a variety of other theories, the only aspect of the complaint at issue before the Supreme Court is a claim based on Paulk’s allegedly false testimony to the grand jury.  The district court denied a motion to dismiss asserting immunity, but the Eleventh Circuit reversed in an interlocutory appeal.  It is that reversal that is now before the Supreme Court.

Given the procedural posture of the case, no facts have been established.  But, assuming the allegations to be true, it is troubling to think that a police officer might escape liability despite subjecting a person to repeated indictment through false testimony.  To be sure, criminal liability might still be established for perjury.  But the whole point of § 1983 is the recognition that local officials cannot be trusted to bring other local officials to justice — establishing accountability for local criminal-justice actors is an important and historically well-established role for the federal courts to play through civil-rights litigation.  I hope the Court in Rehberg will resist the invitation to further expand the immunity protections that have developed for police and prosecutors over the years.