The U.S. Court of Appeals for the Second Circuit recently rendered a very important decision allowing the assertion of §1983 claims against the City of New York based on a district attorney's office policies and practices. In Bellamy v. City of New York, 914 F.3d 747 (2d Cir. 2019), the Second Circuit held that the Queens County District Attorney is a City policymaker with respect to the training, supervision, and discipline of Assistance District Attorneys. The decision paves the way for the plaintiff's §1983 wrongful conviction Monell claims to proceed against the City. The circuit court also reinstated plaintiff's §1983 personal capacity claims against two NYCPD detectives.

Judge John M. Walker Jr. wrote the opinion for the court, joined by District Court (Connecticut) Judge Michael P. Shea, sitting by designation. Judge Dennis G. Jacobs agreed with the court's holding on the Monell claims but dissented in part because he found the detectives entitled to summary judgment based on qualified immunity.

Kareem Bellamy's §1983 action arose from his wrongful convictions in New York Supreme Court, Queens County for second-degree murder and criminal possession of a weapon. He was incarcerated for 14 years until the state court vacated his conviction based on newly discovered evidence that another individual may have committed the murder.

In his §1983 complaint Bellamy alleged that: (1) Detectives Solomeno and Gillen fabricated evidence of Bellamy's guilt and withheld exculpatory impeachment evidence, namely, the full scope of relocation benefits provided to a prosecution witness who was in a witness protection program; and (2) Assistant District Attorney (ADA) David Guy of the Queens County District Attorney's Office (QCDA) engaged in serious misconduct that violated Bellamy's due process right to a fair trial when he told the jury near the end of his summation, “I know who committed the murder” (meaning Bellamy); ”Where is there proof defendant had no motive to kill somebody?'; and that Bellamy was “not going to get away with it, not this time,” which permitted the jury to infer “that Bellamy had committed other uncharged crimes at other times (murder, no less, the crime for which Bellamy was on trial) and that the government had evidence of those crimes to which the jury was not privy.” Bellamy, 914 F.3d at 763 (citations omitted). During his summation Guy also called Bellamy “a liar.”

The Monell claims against the City alleged that (1) the QCDA had a “policy of purposefully shielding from prosecutors (and thereby the defense) the full scope of relocation benefits given to witnesses in its witness protection program”; 914 F.3d at 733; and (2) the QCDA's office was deliberately indifferent to its systemic failures to train and discipline its ADA's with respect to improper summations. 914 F.3d at 742.

The case came to the Second Circuit on Bellamy's appeal from the district court's grant of summary judgment to the detectives on the ground that plaintiff failed to raise material issues of fact that they fabricated or withheld material evidence, and the grant of judgment on the pleadings on the Monell claims in favor of the City of N.Y., based on its determination, inter alia, that the Queens District Attorney is a State, not City, policymaker.

The facts surrounding the murder were “complex and protracted,” 914 F.3d at 734, and the summary judgment record on the §1983 claims was “extensive” and “complicated.” Id. The circuit court opinion is quite detailed, raising a variety of issues. It is not exactly the stuff of which “fast reads” are made. We will focus primarily on the legal issue of whether the Queens County District Attorney acted as a state or municipal policymaker. To understand why this is such an important issue, it is necessary to consider several major pieces of the puzzle.

Studies have identified prosecutorial misconduct as one of the causes of wrongful convictions, especially prosecutorial failures to comply with their due process Brady obligations to disclose exculpatory material to the defense. Brandon L. Garrett, Convicting the Innocent, p.168 (Harv. Univ. Press 2011). A §1983 claim for damages against an ADA in his or her personal capacity based on a failure to disclose exculpatory material would be doomed for failure from the get-go because of absolute prosecutorial immunity which shields a prosecutor's carrying out of advocacy functions. See Imbler v. Pachtman, 424 U.S. 409, 430-32 (1976); Yarris v. County of Delaware, 465 U.S. 129 (3d Cir. 2006); Villasana v. Wilhoit, 368 F.3d 976, 979 (8th Cir. 2004). Similarly, a claim for damages against an ADA based upon his or her prejudicial summation would be defeated by absolute prosecutorial immunity because summation is an aspect of an ADA's advocacy function.

Although prosecutors generally do not enjoy absolute immunity for carrying out administrative and investigatory actions, the Supreme Court in Van de Kamp v. Goldstein, 555 U.S. 335 (2009) held that supervisory prosecutors are protected by absolute immunity for administrative actions that are closely tied to the judicial process. More specifically, the court in Van de Kamp held that prosecutorial immunity protected a District Attorney and his Chief Deputy from personal monetary liability on §1983 claims that they failed to adequately train and supervise the line prosecutors in their office on their Brady obligation to disclose impeachment material.

How does §1983 law treat a claim against a District Attorney in his or her official capacity? Remember, a claim against a state or municipal official in her official capacity is tantamount to a claim against the entity. In Bellamy the plaintiff named as defendant the City of New York. The City, however, argued that it was not a proper defendant because the QCDA did not act on behalf of the City, but on behalf of the state of New York.

Why does it matter? A federal court claim for monetary relief against a state, state entity, or state official in an official capacity would be subject to early dismissal, because these defendants are not suable §1983 “persons,” Will v. Michigan Dep't of State Police, 491 U.S. 58 (1989), and because of the states' Eleventh Amendment immunity, Edelman v. Jordan, 415 U.S. 651 (1974). See also Quern v. Jordan, 440 U.S. 332 (1979) (§1983 did not abrogate Eleventh Amendment immunity). By contrast, municipalities are suable §1983 “persons” and do not enjoy Eleventh Amendment immunity. Monell v. Department of Social Services, 436 U.S. 658, 690 n.54 (1978). See also Missouri v. Jenkins, 495 U.S. 33, 56 n. 20 (1990); Mt. Healthy v. City Sch. Dist. Bd. of Ed., 429 U.S. 274, 280-81 (1977). So, in the law of §1983, there is vital distinction between state and municipal liability.

Municipalities may be sued under §1983 for compensatory damages and prospective relief, Los Angeles v. Humphries, 562 U.S. 29 (2010), although not for punitive damages. City of Newport v. Fact Concerts ,Inc., 453 U.S. 247 (1981). Because there is no respondeat superior liability under §1983, the plaintiff must demonstrate that the violation of his or her federal constitutional rights was attributable to the enforcement of a municipal policy or practice, or the decision of an official who has final policymaking authority. City of St. Louis v. Praprotnik, 485 U.S. 112 (1988); Pembaur v. City of Cincinnati; 475 U.S. 469 (1986). The Supreme Court has resolved that whether an official has final policymaking authority is an issue of law for the court, to be determined by reference to state law which, realistically, often means local law Jett v. Dallas Independent School District, 491 U.S. 701 (1989).

It is typically very difficult for §1983 plaintiffs to prevail on a municipal liability claim. Attempting to prove a municipal custom or practice is likely to be very costly and time consuming, often without a high probability of ultimate success. The same is true about municipal liability failure to train claims, which impose very rigorous fault and causation burdens on the plaintiff. Connick v. Thompson, 563 U.S. 51 (2011). But if the plaintiff can establish that the violation of his or her constitutional rights was attributable to the decision of municipal policymaker, the plaintiff will have a fighting chance of advancing the claim.

Are District Attorneys in New York state or municipal policymakers? In McMillan v. Monroe County, 520 U.S. 781 (1997), the issue was whether a County Sheriff in Alabama was a state or County policymaker in the area of law enforcement. The court ruled that, like the determination of whether a municipal official has final policymaking authority, whether an official is a state or municipal policymaker is also determined by reference to state law. The court acknowledged that (1) states have wide authority as to how to structure their state and local governments (520 U.S. at 795); (2) an official may be a state policymaker for one purpose and a municipal policymaker for another (id. at 785); and (3) an official, like a sheriff, may be a state policymaker in one state and municipal policymaker in another (id. at 795).

All of the Justices in McMillian agreed that whether an official is a state or municipal policymaker is determined by reference to state law. Nevertheless. when it came to applying Alabama state law, the court divided, 5-4, with the majority holding that a County Sheriff in Alabama is a state, not county policymaker in the area of law enforcement. The court stated that

“the question is not whether Sheriff Tate acts for Alabama or Monroe County in some categorical, 'all or nothing' manner. Our cases on the liability of local governments under §1983 instruct us to ask whether governmental officials are final policymakers for the local government in a particular area, or on a particular issue … . Thus, we are not seeking to make a characterization of Alabama sheriffs that will hold true for every type of official action they engage in. We simply ask whether Sheriff Tate represents the State or the County when he acts in a law enforcement capacity.”

520 U.S. at 785

The majority in McMillian relied heavily on the Alabama Constitution and the Alabama Supreme Court's interpretation of the state Constitution that sheriffs are state officers, “most importantly” that county sheriffs in Alabama have “ complete authority to enforce state criminal law in their counties,” the U.S. Supreme Court found that Alabama sheriffs, when executing their law enforcement duties, represent the state of Alabama, not their counties. 520 U.S. at 790. The U.S. Supreme Court reached this conclusion even though: (1) the Sheriff's salary was paid out of the county treasury; (2) the county provided the Sheriff with equipment, including cruisers; (3) the sheriff's jurisdiction was limited to the borders of his county; and (4) the sheriff was elected locally by the voters in his county. The four dissenting Justices, relying on these four factors, came to the opposite conclusion, namely, that Alabama sheriffs are county policymakers. McMillian, 520 U.S. at 804-05 (Ginsburg, J., joined by Stevens, Souter and Breyer, J.J., dissenting) ( “ A sheriff locally elected, paid, and equipped, who autonomously sets and implements policies operative within the geographic confines of a county, is ordinarily just what he seems to be: a county official.”). The majority, however, found that these factors did not “tip the balance” in favor of finding the Sheriff a county policymaker. In short, the majority and dissent emphasized different aspects of Alabama state law.

Returning to Bellamy, a consistent line of Second Circuit decisions, post and (mostly) pre-McMillan, going back three decades, hold that while District Attorneys in New York when prosecuting individual criminal cases represent the state, when carrying out their administrative functions, such as policies and practices relating to the training, supervision, and discipline of ADA's, District Attorneys iare a municipal policymaker. See Bellamy, 915 F.3d at 757-59 (citing and discussing, e.g., Myers v. County of Orange, 157 F.3d 66, 69 (2d Cir. 1998); Walker v. City of N.Y., 974 F.2d 293 (2d Cir. 1992), cert. den., 507 U.S. 916 (1997); Gentile v. County of Suffolk, 926 F.2d 142 (2d Cir. 1991); Baez v. Hennessey, 853 F.2d 73 (2d Cir. 1992)). Other circuit courts of appeals have reached the same conclusions for district attorneys in other states. See, e.g., D'Ambrosio v. Marino, 747 F.3d 738 (6th Cir. 2014); Estate of Lagano v. Bergen Cnty. Prosecutor's Office, 769 F.3d 850 (3d Cir. 2014); Goldstein v. City of Long Branch, 715 F.3d 750 (9th Cir. 2013), cert. den., 134 S. Ct. 901 (2014); Carter v. City of Philadelphia, 181 F.3d 339 (3d Cir. 1999), cert. den., 528 U.S. 1005 (1999); Esteves v. Brock, 106 F.3d 674 (5th Cir. 1997).

The City in Bellamy argued, and the district court agreed, that this line of decisions was effectively overruled by the Supreme Court's decision in Van de Kamp v. Goldstein, 555 U.S. 335 (2009) . The City read Van de Kamp as implicitly finding training, supervision, and discipline of ADA's to be a state function. The Second Circuit was not persuaded. The state versus municipal policymaker issue was not at issue in Van de Kamp. In fact, there was no issue of municipal liability before the Supreme Court in Van de Kamp. Rather, the issue in Van de Kamp was the immunity to which the supervisory prosecutors were entitled on claims for damages against them in their personal capacities. The immunities to which personal capacity defendants are entitled depends not on whether the defendant is a state or local official, but on the nature of the function the official carried out. See, e.g., Bogan v. Scott-Harris, 523 U.S. 44 (1998) (local legislators, like their state counterparts, are protected by absolute legislative immunity when carrying out their legislative functions). The supervisory officials in Van de Kamp were afforded absolute immunity because they carried out functions very closely related to the judicial process, not because they carried out a state or local function.

The Second Circuit in Bellamy agreed with the Ninth Circuit's decision in Goldstein v. City of Long Branch, 715 F.3d 750, 760 (9th Cir. 2013) that “the inquiries of prosecutorial immunity and state or local policymaking … . are separate.” The circuit court in Bellamy put it this way:

“Monell addresses not whether certain functions can open individuals to liability, but simply which governmental entity (the state or the municipality) is responsible for a given function. [T]he Supreme Court has … . left no doubt that state law, not federal law, is responsible for demarcating that division of responsibility.”

914 F.3d at 760 (emphasis in original).

The circuit court in Bellamy adhered to its precedent drawing a distinction between, on the one hand, making individual decisions whether, and on what charges, to prosecute, and conducting a prosecution, which are state functions on behalf of the “People of the State of New York,” and, on the other hand, District Attorney office administrative, managerial, and supervisory functions, which are municipal functions. The court held that Bellamy's Monell claims based on office policies, including failures to train and discipline, fell on the municipal side of the line.

It is not often that an ADA's summation gives rise to a constitutional claim, but ADA Guy's comments near the end of his summation did. The circuit court found that Bellamy raised a triable issue of fact whether the summation was so unfair and prejudicial as to violate his due process, right to a fair trial, and whether Guy's improper summation resulted from the QCDA's failures to adequately train and discipline its ADA's concerning summations. This is a rare (perhaps only) circuit court decision allowing the assertion of Monell training and discipline claims based on an improper summation.

Martin A. Schwartz is a professor emeritus of law and the author of a multi-volume Section 1983 Litigation treatise published by Wolters Kluwer Law and Business.