Amicus Curiae Brief — Edward G. McDonough, Petitioner v. Youel Smith, Individually and as Special District Attorney for the County of Rensselaer, New York, aka Trey Smith

Supreme Court briefMar 4, 2019

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No. 18-485

IN THE

Supreme Court of the United States

EDWARD G. MCDONOUGH,

Petitioner,

YOUEL SMITH, INDIVIDUALLY AND AS SPECIAL

DISTRICT ATTORNEY FOR THE COUNTY OF RENSSELAER,

NEW YORK, AKA TREY SMITH,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Second Circuit

BRIEF OF CONSTITUTIONAL ACCOUNTABILITY

CENTER AS AMICUS CURIAE IN

SUPPORT OF PETITIONER

ELIZABETH B. WYDRA

BRIANNE J. GOROD*

BRIAN R. FRAZELLE

CONSTITUTIONAL

ACCOUNTABILITY CENTER

1200 18th Street NW, Suite 501

Washington, D.C. 20036

(202) 296-6889

brianne@theusconstitution.org

Counsel for Amicus Curiae

March 4, 2019

* Counsel of Record

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................

INTEREST OF AMICUS CURIAE ......................

INTRODUCTION AND SUMMARY OF

ARGUMENT ......................................................

ARGUMENT .........................................................

Section 1983 Is Meant To Vindicate

the Unique Rights Guaranteed by

the Federal Constitution, Not the

Interests Protected by the Common

Law of Torts .............................................

Common-Law Rules Are Borrowed To

Fill in the Gaps of Section 1983 Only

When Those Rules Help Fulfill the

Statute’s Purpose .....................................

III. To Advance the Goals of Section 1983,

a Constitutional Claim that Fabricated

Evidence Was Used To Initiate and

Maintain Criminal Proceedings Should

Accrue Only When Those Proceedings

Have Terminated .....................................

CONCLUSION .....................................................

II.

(i)

TABLE OF AUTHORITIES

Cases

Page(s)

Ahern v. Collins,

39 Mo. 145 (1866) ..................................

Anderson v. Creighton,

483 U.S. 635 (1987) ...............................

Baker v. McCollan,

443 U.S. 137 (1979) ...............................

Bay Area Laundry & Dry Cleaning

Pension Trust Fund v. Ferbar Corp,

522 U.S. 192 (1997) ...............................

Bivens v. Six Unknown Named Agents of

Fed. Bureau of Narcotics,

403 U.S. 388 (1971) ...............................

Briscoe v. LaHue,

460 U.S. 325 (1983) ...............................

7, 10

Burnett v. Grattan,

468 U.S. 42 (1984) .................................

Cardival v. Smith,

109 Mass. 158 (1872) ............................

23, 24

Carey v. Piphus,

435 U.S. 247 (1978) ............................... passim

City of Newport v. Fact Concerts, Inc.,

453 U.S. 247 (1981) ............................ 6, 8, 9, 13

Daniels v. Williams,

474 U.S. 327 (1986) ...............................

10, 13

iii

TABLE OF AUTHORITIES – cont’d

Devbrow v. Kalu,

705 F.3d 765 (7th Cir. 2013) .................

Page(s)

District of Columbia v. Carter,

409 U.S. 418 (1973) ...............................

Finley v. St. Louis Refrigerator Co.,

99 Mo. 559, 13 S.W. 87 (1890) ..............

Hardin v. Straub,

490 U.S. 536 (1989) .......................... 25, 26, 27

Hartman v. Moore,

547 U.S. 250 (2006) ............................... 4, 9, 13

Heck v. Humphrey,

512 U.S. 477 (1994) ........................ 8, 18, 19, 23

Herman v. Brookerhoff,

8 Watts 240 (Pa. 1839) ..........................

23, 25

Hogg v. Pinckney,

16 S.C. 387 (1882) .................................

Holloway v. Morris,

182 Ark. 1096 (1931) .............................

Kalina v. Fletcher,

522 U.S. 118 (1997) ...............................

Malley v. Briggs,

475 U.S. 335 (1986) ...............................

10, 13

Manuel v. City of Joliet,

137 S. Ct. 911 (2017) ............................. passim

Manuel v. City of Joliet,

903 F.3d 667 (7th Cir. 2018) .................

21, 22

TABLE OF AUTHORITIES – cont’d

McNeese v. Bd. of Educ.,

373 U.S. 668 (1963) ...............................

Mitchum v. Foster,

407 U.S. 225 (1972) ........................

Page(s)

3, 4, 5, 6, 7

Monell v. Dep’t of Soc. Servs.,

436 U.S. 658 (1978) ...............................

Monroe v. Pape,

365 U.S. 167 (1961) ...............................

6, 9

Occidental Life Ins. Co. v. EEOC,

432 U.S. 355 (1977) ...............................

Owen v. City of Independence,

445 U.S. 622 (1980) ...............................

12, 27

Owens v. Balt. City State’s Attorneys Office,

767 F.3d 379 (4th Cir. 2014) .................

Owens v. Okure,

488 U.S. 235 (1989) ........................ 4, 6, 7, 9, 13

Patsy v. Bd. of Regents,

457 U.S. 496 (1982) ...............................

5, 6

Rawlings v. Ray,

312 U.S. 96 (1941) .................................

Rehberg v. Paulk,

566 U.S. 356 (2012) ............................... passim

Robertson v. Wegmann,

436 U.S. 584 (1978) ...............................

Smith v. Wade,

461 U.S. 30 (1983) ................................. 5, 7, 12

TABLE OF AUTHORITIES – cont’d

Spak v. Phillips,

857 F.3d 458 (2d Cir. 2017) ..................

Page(s)

Tenney v. Brandhove,

341 U.S. 367 (1951) ...............................

Tower v. Glover,

467 U.S. 914 (1984) ...............................

Wallace v. Kato,

549 U.S. 384 (2007) ............................... passim

Wilson v. Garcia,

471 U.S. 261 (1985) ............................... passim

Wood v. Strickland,

420 U.S. 308 (1975) ...............................

Wyatt v. Cole,

504 U.S. 158 (1992) ...............................

Zahrey v. Coffey,

221 F.3d 342 (2d Cir. 2000) ..................

Constitutional Provisions and Legislative Materials

42 U.S.C. § 1983 .......................................

1, 8

Civil Rights Act of 1871, ch. 22, § 1, 17

Stat. 13 ..................................................

3, 5

Cong. Globe, 42nd Cong., 1st Sess.

(1871) ..................................................... 3, 5, 6, 7

TABLE OF AUTHORITIES – cont’d

Books, Articles, and Other Authorities

Page(s)

2 C.G. Addison, A Treatise on the Law

of Torts (H.G. Wood ed., 1881) ..............

23, 24

Thomas M. Cooley, A Treatise on the

Law of Torts (1879) ...............................

1 Francis Hilliard, The Law of Torts

or Private Wrongs (3d ed. 1866)........ 20, 22, 24

Martin L. Newell, A Treatise on the Law

of Malicious Prosecution, False Imprisonment, and the Abuse of Legal Process

(1892) .....................................................

2 H.G. Wood, Limitation of Actions (rev.

4th ed. 1916) ..........................................

INTEREST OF AMICUS CURIAE1

Amicus Constitutional Accountability Center

(CAC) is a think tank, public interest law firm, and

action center dedicated to fulfilling the progressive

promise of our Constitution’s text and history. CAC

works in our courts, through our government, and

with legal scholars to improve understanding of the

Constitution and to preserve the rights and freedoms

it guarantees. CAC accordingly has a strong interest

in this case and in the proper interpretation of a law,

like 42 U.S.C. § 1983, that was passed to protect the

uniquely federal rights guaranteed by the Constitution.

INTRODUCTION AND

SUMMARY OF ARGUMENT

Twice this Term, parties have asked this Court to

resolve 42 U.S.C. § 1983 claims alleging the violation

of a federal constitutional right by imposing the rules

or elements of a specific common-law tort. In one

case, this approach would favor the defendants. See

Pet’rs Br. 42-48, Nieves v. Bartlett, No. 17-1174 (Aug.

20, 2018). Here, it would favor the plaintiff. See

Pet’r Br. 19-30. In both cases, however, mechanically

importing the components of an “analogous tort” into

a Section 1983 claim would conflict with Section

1983’s text, history, and purpose. This Court should

1 The parties have consented to the filing of this brief and

their letters of consent have been filed with the Clerk. Under

Rule 37.6 of the Rules of this Court, amicus states that no counsel for a party authored this brief in whole or in part, and no

counsel or party made a monetary contribution intended to fund

the preparation or submission of this brief. No person other

than amicus or its counsel made a monetary contribution to its

preparation or submission.

adopt the accrual rule sought by Petitioner, not because “the proper approach is to adopt the limitations

rule from the most analogous common law tort,” Pet’r

Br. 19, but rather because the use of this accrual rule

best comports with the nature of Petitioner’s constitutional claim and Section 1983’s purpose.

Respondent Youel Smith, a state prosecutor, allegedly fabricated evidence of criminal activity

against Petitioner Edward McDonough and used this

evidence in a pretrial investigation, in grand jury

proceedings, and in two criminal trials. Pet’r Br. 2.

Due to this malfeasance, McDonough was subject to

prolonged criminal proceedings, an ordeal that ended

only when his second trial resulted in an acquittal.

Id. McDonough later sued Smith under Section 1983

for fabrication of evidence, which the court below regards as violating the Fifth and Fourteenth Amendment right to due process of law. Pet. App. 10a.

The gravamen of McDonough’s claim is thus “the

wrongful initiation and maintenance of criminal proceedings on the basis of fabricated evidence.” Pet’r

Br. 3. That wrong continued throughout both of his

trials and ended only when his acquittal eliminated

all prospect of further prosecution. Until that moment, McDonough suffered a continuous deprivation

of liberty by virtue of being forced to stand trial. Id.

at 40-41.

Despite that, the court below concluded that the

violation and its harm were “complete” as soon as

Smith’s fabricated evidence was used against

McDonough. Pet. App. 15a. At that point, according

to the court, the statute of limitations on

McDonough’s constitutional claim began to run—

meaning that the lawsuit he ultimately filed after his

acquittal was untimely. Id. at 13a. The court

reached this result by applying a “standard rule” of

accrual derived from the common law, under which

“accrual occurs when a plaintiff has a complete and

present cause of action,” or, put another way, “once

the plaintiff knows or has reason to know of the injury which is the basis of his action.” Id. at 9a-10a (citation and quotation marks omitted).

The court below applied this “standard rule” reflexively—without considering the “refinement[s]” to

this rule, Wallace v. Kato, 549 U.S. 384, 388 (2007),

that the common law has developed for torts addressing concerns similar to Petitioner’s constitutional

claim. And as a result, the court failed to apply the

rule that would best serve “the values and purposes

of the constitutional right at issue.” Manuel v. City of

Joliet, 137 S. Ct. 911, 921 (2017).

After all, Section 1983 created a new remedy to

vindicate the uniquely federal rights guaranteed by

the federal Constitution against infringement by

state officials. Enacted during Reconstruction as part

of “extraordinary legislation,” Cong. Globe, 42nd

Cong., 1st Sess. 322 (1871) (hereinafter “Globe”) (Rep.

Stoughton), that “alter[ed] the relationship between

the States and the Nation with respect to the protection of federally created rights,” Mitchum v. Foster,

407 U.S. 225, 242 (1972), Section 1983 was passed to

provide “further safeguards” to “life, liberty, and

property,” Globe 374 (Rep. Lowe). To that end, it enabled individuals to seek damages in the federal

courts for deprivations of rights “secured by the Constitution of the United States.” Civil Rights Act of

1871, ch. 22, § 1, 17 Stat. 13.

Critically, Section 1983 did not create “a federalized amalgamation of pre-existing common-law

claims, an all-in-one federal claim encompassing the

torts of assault, trespass, false arrest, defamation,

[and] malicious prosecution.” Rehberg v. Paulk, 566

U.S. 356, 366 (2012). Instead, it furnished “a uniquely federal remedy” for incursions on “rights secured

by the Constitution.” Wilson v. Garcia, 471 U.S. 261,

271-72 (1985) (quoting Mitchum, 407 U.S. at 239).

Common-law principles, therefore, “are meant to

guide rather than to control the definition of § 1983

claims, serving ‘more as a source of inspired examples

than of prefabricated components.’” Manuel, 137 S.

Ct. at 921 (quoting Hartman v. Moore, 547 U.S. 250,

258 (2006)). Thus, the procedural rules governing a

particular tort are not to be reflexively imposed on a

Section 1983 claim through “narrow analogies.” Owens v. Okure, 488 U.S. 235, 248 (1989). Instead, when

“applying, selecting among, or adjusting common-law

approaches, courts must closely attend to the values

and purposes of the constitutional right at issue.”

Manuel, 137 S. Ct. at 921.

Sometimes, of course, “the interests protected by

a particular branch of the common law of torts may

parallel closely the interests protected by a particular

constitutional right. In such cases, it may be appropriate to apply the tort rules . . . directly to the § 1983

action.” Carey v. Piphus, 435 U.S. 247, 258 (1978).

This is such a case. Where, as here, fabricated evidence was the basis for criminal proceedings that deprived a victim of liberty, the rule that best fits the

nature of this constitutional claim is that the statute

of limitations begins running only when those proceedings have terminated. This rule also best serves

Section 1983’s goal of redressing and deterring constitutional violations in a uniform manner.

ARGUMENT

Section 1983 Is Meant To Vindicate the

Unique Rights Guaranteed by the Federal

Constitution, Not the Interests Protected by

the Common Law of Torts.

Section 1983, which derives from the Civil Rights

Act of 1871, was enacted to create “a private right of

action to vindicate violations of rights, privileges, or

immunities secured by the Constitution.” Rehberg,

566 U.S. at 361 (quotation marks omitted). This Act,

“along with the Fourteenth Amendment it was enacted to enforce, were crucial ingredients in the basic alteration of our federal system accomplished during

the Reconstruction Era,” Patsy v. Bd. of Regents, 457

U.S. 496, 503 (1982), which established “the role of

the Federal Government as a guarantor of basic federal rights against state power,” Mitchum, 407 U.S.

at 239.

The text of what is now Section 1983 left no

doubt about the new primacy of “federally secured

rights.” Smith v. Wade, 461 U.S. 30, 34 (1983). It

gave any person who was deprived of “any rights,

privileges, or immunities secured by the Constitution

of the United States” the ability to hold the perpetrator liable, “any . . . law, statute, ordinance, regulation, custom, or usage of the State to the contrary

notwithstanding.” 17 Stat. 13; see Globe 692 (Sen.

Edmunds) (the “solemn duty of Congress” is “to secure to the individual, in spite of the State, or with its

aid, as the case might be, precisely the rights that the

Constitution gave him”).

While the “specific historical catalyst” for this legislation “was the campaign of violence and deception

in the South, fomented by the Ku Klux Klan,” Wilson,

471 U.S. at 276; see Globe 158 (Sen. Sherman), Sec-

tion 1983 “‘was not a remedy against the Klan or its

members but against those who representing a State

in some capacity were unable or unwilling to enforce

a state law.’” District of Columbia v. Carter, 409 U.S.

418, 426 (1973) (quoting Monroe v. Pape, 365 U.S.

167, 175-76 (1961) (brackets omitted)). The fundamental problem that Congress sought to address,

therefore, was not the prevalence of violent acts—the

type of individual harms for which state tort law was

designed to provide compensation. Rather, the problem was that Southern states, by tolerating this violence, were “permit[ing] the rights of citizens to be

systematically trampled upon.” Globe 375 (Rep.

Lowe).

To address this problem, Section 1983 “interpose[d] the federal courts between the States and the

people, as guardians of the people’s federal rights.”

Patsy, 457 U.S. at 503 (quoting Mitchum, 407 U.S. at

242) (emphasis added); see Carter, 409 U.S. at 428

(Congress enacted Section 1983 to provide “indirect

federal control over the unconstitutional actions of

state officials”). Thus, while the violence inflicted on

freedmen and their sympathizers “often resembled

the torts of assault, battery, false imprisonment, and

misrepresentation, § 1983 was not directed at the

perpetrators of these deeds as much as at the state

officials who tolerated and condoned them.” Owens,

488 U.S. at 249 n.11.

Accordingly, “Section 1983 imposes liability for

violations of rights protected by the Constitution, not

for violations of duties of care arising out of tort law.”

Baker v. McCollan, 443 U.S. 137, 146 (1979); see Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 685 n.45

(1978). The statute “was designed to expose state

and local officials to a new form of liability,” City of

Newport v. Fact Concerts, Inc., 453 U.S. 247, 259

(1981) (emphasis added), by providing a remedy for

“federally secured rights,” Smith, 461 U.S. at 34, and

would be “supplementary to any remedy any State

might have,” McNeese v. Bd. of Educ., 373 U.S. 668,

672 (1963). Regardless of what recourse state tort

law might provide, “[p]roponents of the measure repeatedly argued that . . . an independent federal remedy was necessary.” Briscoe v. LaHue, 460 U.S. 325,

338 (1983); see Globe 370 (Rep. Monroe) (“life, liberty,

and property require new guarantees for their security” (emphasis added)).

In sum, Section 1983 provides “a uniquely federal

remedy” for incursions upon “rights secured by the

Constitution.” Wilson, 471 U.S. at 271-72 (quoting

Mitchum, 407 U.S. at 239). With full awareness that

it was “altering the relationship between the States

and the Nation with respect to the protection of federally created rights,” Congress enacted Section 1983

to “protect those rights.” Mitchum, 407 U.S. at 242

(emphasis added); see Br. of Constitutional Accountability Center at 5-10, Nieves v. Bartlett, No. 17-1174

(Oct. 9, 2018) (providing more detailed account of the

history and purpose of Section 1983).

II. Common-Law Rules Are Borrowed To Fill in

the Gaps of Section 1983 Only When Those

Rules Help Fulfill the Statute’s Purpose.

A. While Section 1983 authorizes an “action at

law,” it lacks procedural details concerning the operation of this remedy. See Wilson, 471 U.S. at 266; Owens, 488 U.S. at 239. Thus, when a plaintiff alleges

the violation of a constitutional right under Section

1983, courts “must determine the elements of, and

rules associated with, an action seeking damages for

its violation.” Manuel, 137 S. Ct. at 920. This task,

however, is an act “of statutory construction.” Wood

v. Strickland, 420 U.S. 308, 316 (1975).2

As this Court has recognized, “Congress intended

the statute to be construed in the light of commonlaw principles that were well settled at the time of its

enactment.” Kalina v. Fletcher, 522 U.S. 118, 123

(1997). That conclusion is premised on the “important assumption . . . that members of the 42d

Congress were familiar with common-law principles

. . . and that they likely intended these common-law

principles to obtain, absent specific provisions to the

contrary.” City of Newport, 453 U.S. at 258. Because

Congress “borrowed general tort principles” in crafting Section 1983, Heck v. Humphrey, 512 U.S. 477,

484 n.4 (1994), this Court has often filled in the gaps

of the statute with “federal rules conforming in general to common-law tort principles,” Wallace, 549

U.S. at 388.

Crucially, however, “the Court has not suggested

that § 1983 is simply a federalized amalgamation of

pre-existing common-law claims, an all-in-one federal

claim encompassing the torts of assault, trespass,

false arrest, defamation, malicious prosecution, and

more.” Rehberg, 566 U.S. at 366. Instead, it has recognized that “[t]he new federal claim created by

§ 1983 differs in important ways from those preexisting torts,” most significantly in that “it reaches

2 In marked contrast to these procedural omissions, Section

1983 expressly specifies the federal interests it protects—which

include, without limitation, “any rights . . . secured by the Constitution.” 42 U.S.C. § 1983. On this point, the statute leaves

no textual gaps to be filled. Therefore, courts may not shrink

the range of constitutional rights protected by Section 1983 in

an effort to mimic the scope of the interests protected by state

tort law. See Br. of Constitutional Accountability Center, Nieves

v. Bartlett, No. 17-1174 (Oct. 9, 2018).

constitutional and statutory violations that do not

correspond to any previously known tort.” Id. And

because the statute has “no precise counterpart in

state law,” “any analogies to those causes of action

are bound to be imperfect.” Id. (quoting Wilson, 471

U.S. at 272).

Accordingly, while this Court “look[s] first to the

common law of torts” when “defining the contours

and prerequisites of a § 1983 claim,” tort principles

“are meant to guide rather than to control the definition of § 1983 claims, serving ‘more as a source of inspired examples than of prefabricated components.’”

Manuel, 137 S. Ct. at 920-21 (quoting Hartman, 547

U.S. at 258). The rules governing particular causes of

action, therefore, are not mechanically imposed on

Section 1983 claims through “narrow analogies.”

Owens, 488 U.S. at 248. Instead, when “applying, selecting among, or adjusting common-law approaches,

courts must closely attend to the values and purposes

of the constitutional right at issue.” Manuel, 137 S.

Ct. at 921.

Reflecting those principles, this Court’s approach

has traditionally been to fashion “federal rules conforming in general to common-law tort principles,”

Wallace, 549 U.S. at 388 (emphasis added), by calling

upon basic, fundamental, and broadly applicable

principles of tort law. See, e.g., Monroe, 365 U.S. at

187 (Section 1983 “should be read against the background of tort liability that makes a man responsible

for the natural consequences of his actions”). Reliance on such foundational principles makes sense because they are the ones that “members of the 42d

Congress were familiar with” and “likely intended” to

apply under Section 1983. City of Newport, 453 U.S.

at 258; see, e.g., Tenney v. Brandhove, 341 U.S. 367,

372 (1951) (legislator immunity “was taken as a mat-

ter of course by those who severed the Colonies from

the Crown and founded our Nation”); Briscoe, 460

U.S. at 334 (“the common law’s protection for witnesses is a tradition so well grounded in history and

reason that we cannot believe that Congress impinged on it by covert inclusion in the general language before us” (citation and quotation marks omitted)); Carey, 435 U.S. at 254-55 (“[t]he cardinal principle of damages in Anglo-American law . . . hardly

could have been foreign to the many lawyers in Congress in 1871” (citation and quotation marks omitted)).

Importantly, however, even when importing such

foundational principles into Section 1983, this Court

has not “mechanically duplicated” their “precise

scope.” Rehberg, 566 U.S. at 364; see, e.g., Malley v.

Briggs, 475 U.S. 335, 340 (1986) (“while we look to

the common law for guidance, we do not assume that

Congress intended to incorporate every common-law

immunity into § 1983 in unaltered form”); Anderson

v. Creighton, 483 U.S. 635, 644-45 (1987) (“determinations as to the scope of official immunity are made

in the light of the common-law tradition,” but “we

have never suggested that the precise contours of official immunity can and should be slavishly derived

from the often arcane rules of the common law” (citation and quotation marks omitted)).

That is because “[r]ights, constitutional and otherwise, do not exist in a vacuum. Their purpose is to

protect persons from injuries to particular interests,

and their contours are shaped by the interests they

protect.” Carey, 435 U.S. at 254. And critically, “the

United States Constitution [and] traditional tort law

. . . do not address the same concerns,” Daniels v. Williams, 474 U.S. 327, 333 (1986), even when they prohibit similar conduct.

B. To be sure, sometimes “the interests protected

by a particular branch of the common law of torts

may parallel closely the interests protected by a particular constitutional right. In such cases, it may be

appropriate to apply the tort rules . . . directly to the

§ 1983 action.” Carey, 435 U.S. at 258. Indeed, this

is such a case. See infra, Part III. “In other cases,”

however, “the interests protected by a particular constitutional right may not also be protected by an

analogous branch of the common law torts.” Carey,

435 U.S. at 258; see Bivens v. Six Unknown Named

Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 394

(1971) (“The interests protected by state laws regulating trespass and the invasion of privacy, and those

protected by the Fourth Amendment’s guarantee

against unreasonable searches and seizures, may be

inconsistent or even hostile.”); Manuel, 137 S. Ct. at

925 (Alito, J., dissenting) (citing “a severe mismatch”

between the Fourth Amendment and the tort of malicious prosecution); see also Br. of Constitutional Accountability Center at 19-30, Nieves v. Bartlett, No.

17-1174 (Oct. 9, 2018) (explaining that the torts of

false imprisonment and malicious prosecution protect

different interests than the First Amendment’s prohibition on retaliatory arrest).

Where constitutional requirements and the interests they protect do not neatly align with any particular common-law tort, “[t]he purpose of § 1983 would

be defeated if injuries caused by the deprivation of

constitutional rights went uncompensated simply because the common law does not recognize an analogous cause of action.” Carey, 435 U.S. at 258. In a

Section 1983 suit, after all, the question is not

whether the defendant has breached a duty of care

imposed by tort law, but rather whether he or she

“has conformed to the requirements of the Federal

Constitution.” Owen v. City of Independence, 445

U.S. 622, 649 (1980).

“In order to further the purpose of § 1983,” therefore, “the rules governing compensation for injuries

caused by the deprivation of constitutional rights

should be tailored to the interests protected by the

particular right in question—just as the common-law

rules . . . themselves were defined by the interests

protected in the various branches of tort law.” Carey,

435 U.S. at 258-59; see Manuel, 137 S. Ct. at 921.

Because state common-law rules are not fashioned

“with national interests in mind,” the federal courts

must ensure that any reliance on common law “will

not frustrate or interfere with the implementation of

national policies.”

Occidental Life Ins. Co. v.

EEOC, 432 U.S. 355, 367 (1977).

C. Consistent with this circumscribed role for

common-law rules, even when this Court determines

that a particular rule may be appropriate to import

into Section 1983, the Court does not do so without

first considering “if § 1983’s history or purpose counsel against applying it in § 1983 actions.” Wyatt v.

Cole, 504 U.S. 158, 164 (1992).

With respect to damages, for instance, the Court

has explained that, in the absence of “specific guidance” from Section 1983’s text and history, it “look[s]

first to the common law of torts,” but only “with such

modification or adaptation as might be necessary to

carry out the purpose and policy of the statute.”

Smith, 461 U.S. at 34.

Similarly, with respect to immunities, even when

this Court determines that “an official was accorded

immunity from tort actions at common law when the

Civil Rights Act was enacted in 1871, the Court next

considers whether § 1983’s history or purposes none-

theless counsel against recognizing the same immunity in § 1983 actions.” Malley, 475 U.S. at 340 (quoting Tower v. Glover, 467 U.S. 914, 920 (1984)). That

is because “it would defeat the promise of the statute

to recognize any preexisting immunity without determining . . . its compatibility with the purposes of

§ 1983.” City of Newport, 453 U.S. at 259.

With respect to statutes of limitations, likewise,

this Court has rejected yoking each specific type of

Section 1983 action to a corresponding tort, recognizing that “[a]lmost every § 1983 claim can be favorably

analogized to more than one of the ancient commonlaw forms of action, each of which may be governed

by a different statute of limitations.” Wilson, 471

U.S. at 272-73. Instead, “a simple, broad characterization of all § 1983 claims best fits the statute’s remedial purpose” by ensuring that, within each state,

a single, predictable statute of limitations will apply.

Id. at 272.

In sum, this Court consistently eschews reliance

on “narrow analogies between § 1983 claims and

state causes of action.” Owens, 488 U.S. at 248. Because those causes of action reflect the concerns of

traditional tort law and not the distinct concerns of

the U.S. Constitution, Daniels, 474 U.S. at 333, this

Court has not “mechanically duplicated” their contours under Section 1983, Rehberg, 566 U.S. at 364,

even when looking to them “as a source of inspired

examples,” Manuel, 137 S. Ct. at 921 (quoting Hartman, 547 U.S. at 258).

III. To Advance the Goals of Section 1983, a

Constitutional

Claim

that

Fabricated

Evidence Was Used To Initiate and

Maintain Criminal Proceedings Should

Accrue Only When Those Proceedings Have

Terminated.

In the decision below, the court mechanically applied a general-purpose accrual rule derived from the

common law of torts. Instead of doing so, the court

should have first “considered” the “refinement[s]” to

this rule that the common law has developed for torts

that address concerns similar to Petitioner’s constitutional claim. Wallace, 549 U.S. at 388. It then

should have asked whether adopting any of those refinements would better serve “the values and purposes of the constitutional right at issue.” Manuel, 137

S. Ct. at 921.

Applying that approach, the result is clear: when

a plaintiff challenges “the initiation and maintenance

of criminal proceedings based on fabricated evidence,

and the resulting deprivation of his liberty,” Pet’r

Br. 4, the statute of limitations should begin running

only when those proceedings have terminated. This

rule, an application of the common-law concept of a

continuing violation, best fits the nature of Petitioner’s constitutional claim. Moreover, adopting that

rule here best serves Section 1983’s goal of redressing

and deterring constitutional violations in a uniform

manner.

A. The court below erred by applying a commonlaw accrual rule without analyzing whether this rule

was a proper fit for the constitutional claim at issue.

The court began its analysis with a subtle, but

crucial, misstatement of the law. It stated that federal courts “apply general common-law tort principles

to determine the accrual date of a [Section] 1983

claim.” Pet. App. 9a (quoting Spak v. Phillips, 857

F.3d 458, 462 (2d Cir. 2017)); see Spak, 857 F.3d at

462 (citing Wallace v. Kato for this point). What this

Court has actually said, however, is that federal

courts should apply “federal rules conforming in

general to common-law tort principles.” Wallace, 549

U.S. at 388 (emphasis added). Behind that subtle difference in wording is a wide gulf in meaning.

The notion that courts should “apply general

common-law tort principles,” Pet. App. 9a, implies a

wholesale adoption of those common-law principles,

displacing any further consideration of the unique

constitutional right at issue. But this Court’s guidance makes clear that the procedural rules governing

Section 1983 actions will conform only “in general” to

the common law. Wallace, 549 U.S. at 388. That important caveat acknowledges what the court below

did not: “In order to further the purpose of § 1983, the

rules governing compensation for injuries caused by

the deprivation of constitutional rights should be tailored to the interests protected by the particular right

in question . . . .” Carey, 435 U.S. at 258-59; accord

Manuel, 137 S. Ct. at 920-21.

This misstatement by the court below compromised its analysis. Instead of using common-law

rules as “the appropriate starting point for the inquiry under § 1983,” Carey, 435 U.S. at 258 (emphasis added), the court took those rules to be the end of

that inquiry.

Under “the standard rule” for accrual, the court

explained, “accrual occurs when a plaintiff has a

complete and present cause of action, that is, when

the plaintiff can file suit and obtain relief.” Pet. App.

9a-10a. This rule derives from “common-law tort

principles.” Wallace, 549 U.S. at 388.3 But the court

never carried out the next step in the inquiry: assessing whether this standard rule was a proper fit

for Petitioner’s constitutional claim, or whether any

“refinement” to the standard rule would better vindicate Section 1983’s goals. Cf. id. at 384 (“There is,

however, a refinement to be considered, arising from

the common law’s distinctive treatment of the torts of

false arrest and false imprisonment . . . .”).

To be sure, the court acknowledged, and rejected,

Petitioner’s analogy between fabrication of evidence

and the tort of malicious prosecution. But its rejection of that analogy was premised on its assumption

that the standard rule applied. See Pet. App. 13a (rejecting analogy because “the injury . . . occurs at the

time the evidence is used against the defendant”).

The court never wrestled with the threshold question

of whether this standard rule, or some alternative,

should be used when a Section 1983 plaintiff brings

fabrication-of-evidence claims like Petitioner’s.

By assuming that it should fill in the gaps of Section 1983 by simply plugging in “general common-law

tort principles,” Pet. App. 9a, the decision below

failed to abide by this Court’s precedents.

B. Petitioner, for his part, also advocates the

wholesale adoption of a common-law rule. Instead of

3 See also id. (citing for this rule Bay Area Laundry & Dry

Cleaning Pension Trust Fund v. Ferbar Corp., 522 U.S. 192, 201

(1997)); Bay Area Laundry, 522 U.S. at 201 (citing for this rule

Rawlings v. Ray, 312 U.S. 96, 98 (1941)); Rawlings, 312 U.S. at

98 (citing for this rule Holloway v. Morris, 182 Ark. 1096, 1099

(1931)); Holloway, 182 Ark. at 1099 (“It is well settled that the

statute of limitations does not begin to run in any case until

there is a complete and present cause of action.”).

pointing to general tort principles, however, he argues that “the proper approach is to adopt the limitations rule from the most analogous common law tort.”

Pet’r Br. 19.

Petitioner at times portrays Wallace v. Kato as

demanding this approach, Pet’r Br. 19, and some

courts have read Wallace that way.

See, e.g.,

Devbrow v. Kalu, 705 F.3d 765, 767 (7th Cir. 2013)

(“we use the rule that applies to the common-law

cause of action most similar to the kind of claim the

plaintiff asserts” (citing Wallace, 549 U.S. at 388));

Owens v. Balt. City State’s Attorneys Office, 767 F.3d

379, 391-92 (4th Cir. 2014) (same, rejecting argument

that “the common law [is] merely the ‘starting point’

in resolving a statute-of-limitations question in a

§ 1983 action”).

Wallace, however, does not call for inflexible reliance on whatever the nearest tort analog to a Section

1983 claim happens to be. While the decision firmly

indicates that courts should “consider” any “distinctive rule[s]” of such torts when selecting the appropriate standard, Wallace, 549 U.S. at 389-90, its

choice to borrow the rule of a particular tort rested on

a determination that this rule served similar interests as the constitutional right at issue. Borrowing

from that tort, therefore, would adequately serve the

values and purposes of Section 1983.

In Wallace, defendants who were accused of an

unconstitutional arrest urged this Court to apply the

same “standard rule” for accrual that the court below

applied here. This Court instead opted to apply the

“distinctive rule” governing false imprisonment

claims. Id. at 389. In doing so, the Court explained

that the tort of false imprisonment protects similar

interests as the Fourth Amendment’s ban on unreasonable seizures:

That tort provides the proper analogy to the

cause of action asserted against the present

respondents for the following reason: The sort

of unlawful detention remediable by the tort

of false imprisonment is detention without legal process, and the allegations before us

arise from respondents’ detention of petitioner without legal process . . . .

Id. (citations omitted). Because the common-law rule

and the relevant constitutional provision were both

meant to remedy the same “sort” of injuries, this tort

was a “proper analogy” for the constitutional claim.

Id.

This Court also noted why the common law may

have developed this distinctive rule for false imprisonment claims: “the reality that the victim may not

be able to sue while he is still imprisoned.” Id. That

acknowledgement further underscored why it was

appropriate to apply this rule to plaintiffs like the one

in Wallace—plaintiffs who likewise may have been

unable to sue while still imprisoned.

Petitioner also relies on this Court’s decision in

Heck v. Humphrey. But Heck does not call for mechanical reliance on the rules of an “analogous tort”

any more than Wallace does. This Court there noted

that “we look first to the common law of torts,” which

is “‘the appropriate starting point for the inquiry under § 1983.’” Heck, 512 U.S. at 483 (quoting Carey,

435 U.S. at 257-58) (emphases added). After examining the elements of the tort of malicious prosecution,

the Court adopted one of those elements—favorable

termination of the criminal proceedings—as a requirement for similar constitutional claims.

Before doing so, however, the Court assured itself

that malicious prosecution was indeed a proper anal-

ogy. Because this tort “permits damages for confinement imposed pursuant to legal process,” including

“compensation for any arrest or imprisonment,” id. at

484, it closely matched the plaintiff’s constitutional

claims alleging abuse of the criminal process to arrest, try, and convict him, id. at 479.

The Court also made clear why borrowing the

“favorable termination” rule from malicious prosecution would serve the purposes of federal law. That

rule “avoids parallel litigation over the issues of

probable cause and guilt,” and it precludes “collateral

attack[s] on the conviction through the vehicle of a

civil suit.” Id. at 484 (citation and quotation marks

omitted). These attributes were especially significant

in Heck because there the Court had to reconcile Section 1983 with the federal habeas corpus statute. Id.

at 480-81. By exploring “the common-law principle

barring tort plaintiffs from mounting collateral attacks on their outstanding criminal convictions,” this

Court confirmed its belief that Section 1983, “which

borrowed general tort principles, was not meant to

permit such collateral attack,” leaving “habeas corpus

[as] the exclusive remedy” for such challenges. Id. at

485 n.4, 481.

Heck and Wallace, therefore, do not endorse a reflexive adoption of the rules or elements of whatever

tort happens to be most analogous to a plaintiff’s constitutional claim. Embedded in both decisions was a

determination that the constitutional claim at issue

truly was analogous to the specific tort from which

the Court borrowed, and that applying this tort’s

rules would further the purposes of Section 1983.

Any doubt or ambiguity on this score has been

removed by this Court’s subsequent decisions, which

reemphasize that Section 1983 is not “a federalized

amalgamation of pre-existing common-law claims,”

Rehberg, 566 U.S. at 366, that “any analogies to those

causes of action are bound to be imperfect,” id., and

that, as a result, “[c]ommon-law principles are meant

to guide rather than to control the definition of § 1983

claims,” Manuel, 137 S. Ct. at 921.

This more nuanced interpretation of Heck and

Wallace also helps ensure the consistency of those decisions with the remainder of this Court’s precedent—which has always recognized Section 1983’s

role as a remedy for uniquely federal rights. It is “the

purest coincidence” when the common law seeks to

protect comparable rights. Rehberg, 566 U.S. at 366

(quoting Wilson, 471 U.S. at 272). The efficacy of

Section 1983 in vindicating constitutional rights cannot hinge on the luck of whether state tort law happens to address similar interests. Indeed, it is precisely where state law is lacking in this regard that

Section 1983’s remedy is most essential.

C. The court below should not, therefore, have

“simply adopt[ed] the limitations rule applicable to

the most analogous common law tort.” Pet’r Br. 2.

But neither should the court have applied a “standard rule” of accrual, Pet. App. 9a, without “closely attend[ing] to the values and purposes of the constitutional right at issue,” Manuel, 137 S. Ct. at 921. Instead, the court should have considered whether any

refinements to that standard rule were a better fit for

Petitioner’s constitutional claim. And that analysis

supports the rule sought by Petitioner: a constitutional claim that fabricated evidence was used to initiate and maintain criminal proceedings should not

accrue until those proceedings terminate.

Although the standard rule under common-law

tort principles is that a limitations period begins

“when the plaintiff has a complete and present cause

of action,” Wallace, 549 U.S. at 388, the common law

also recognizes that certain wrongs constitute continuing violations. And those violations are governed by

a different rule.

The tort of false imprisonment, for instance, “does

not consist in a single act, but in a prolonged or continuous violation of personal liberty.” 1 Francis Hilliard, The Law of Torts or Private Wrongs 200 (3d ed.

1866); see id. (“an officer, who illegally imprisons a

person, is liable not only for the time he is in the officer’s custody, but for all the time of the imprisonment”). Accordingly, “[t]he running of the statute of

limitations on false imprisonment is subject to a distinctive rule,” commencing only “‘when the alleged

false imprisonment ends.’” Wallace, 549 U.S. at 389

(quoting 2 H.G. Wood, Limitation of Actions

§ 187d(4), at 878 (rev. 4th ed. 1916)). This Court borrowed that distinctive rule in Wallace after finding it

better suited to the nature of the plaintiff’s constitutional claim. See supra at 17-18.

The same principle applies here. An official’s

fabrication of evidence to initiate and maintain criminal proceedings is an ongoing wrong from which the

victim is not free until the proceedings have completely terminated. See Pet’r Br. 44-50. Just as

“[t]he wrong of detention without probable cause continues for the duration of the detention,” Manuel v.

City of Joliet, 903 F.3d 667, 670 (7th Cir. 2018), here

too the wrong continued for the duration of Petitioner’s trial and retrial. As the court below acknowledged, “[t]he constitutional right violated by fabricated evidence is the right not to . . . face trial based on

such evidence.” Pet. App. 14a-15a. Petitioner continued to face trial, and thus was deprived of his constitutional rights, until his acquittal ended all prospect of further prosecution. Until that point, he endured “a prolonged or continuous violation of person-

al liberty.” 1 Hilliard, supra, at 200; cf. Pet. App. 10a

(acknowledging that Petitioner “suffered a liberty

deprivation because of [fabricated] evidence when he

. . . stood trial”).

Resisting that conclusion, the court below insisted that Respondent’s wrongful acts were “complete”

as soon as the fabricated evidence was used against

Petitioner. Pet. App. 15a. By “complete,” the court

seems to have meant that Petitioner by then had

been legally harmed and was thus entitled to sue.

See id. But as Wallace illustrates, that is not the only

consideration. The mere fact that a wrong has begun

to injure its victim does not mean that the wrong has

ended. In Wallace, after all, the plaintiff “was injured

and suffered damages at the moment of his arrest,

and was entitled to bring suit at that time,” 549 U.S.

at 390 n.3, yet the violation did not end—and his

claim did not accrue—until later, when he was no

longer held without legal process, id. at 391.

Respondent’s unconstitutional acts were therefore not “complete” at the moment he used fabricated

evidence in a way that injured Petitioner. That evidence led to the instigation and the continuation of

criminal proceedings. The violation ended only when

Petitioner was no longer in legal jeopardy, and thus

no longer being deprived of his liberty. “When a

wrong is ongoing rather than discrete,” as here, “the

period of limitations does not commence until the

wrong ends.” Manuel, 903 F.3d at 669.

Borrowing the distinctive accrual rule for continuing violations is appropriate regardless of whether

false imprisonment, malicious prosecution, or some

other tort is “the closest common law analog” to Petitioner’s claim. Pet’r Br. 3. The function of the common law here is to provide “a source of inspired examples.” Manuel, 137 S. Ct. at 921. Because the con-

tinuation of Petitioner’s criminal proceedings based

on fabricated evidence was an ongoing violation, akin

to the continuation of a false imprisonment, it is

proper to draw upon the example of false imprisonment’s distinctive accrual rule.

After all, while false imprisonment and malicious

prosecution are separate causes of action, the two are

“related.” Heck, 512 U.S. at 484; see generally Martin

L. Newell, A Treatise on the Law of Malicious Prosecution, False Imprisonment, and the Abuse of Legal

Process (1892).4 Together with their variants, these

torts formed “a particular branch of the common law,”

Carey, 435 U.S. at 258, addressing the harms that

ensue from deprivations of liberty inflicted with inadequate or tainted legal process. See Newell, supra,

§ 7, at 9 (“An action will lie against one who has either unlawfully arrested or imprisoned another, or

who has falsely, that is unjustly and maliciously,

prosecuted him and caused his arrest.”). And those

harms resemble the harms that the Constitution

guards against by prohibiting the use of fabricated

evidence in criminal proceedings. See Pet. App. 10a

(“Under the Fifth and Fourteenth Amendments’ Due

Process Clauses, individuals have ‘the right not to be

4 Illustrating the fluid spectrum between these torts, one of

their variants, sometimes called “malicious arrest,” consisted of

making false representations to obtain a judicial order for the

arrest and detainment of another person, such as an alleged

debtor. See 2 C.G. Addison, A Treatise on the Law of Torts

§ 870, at 83 (H.G. Wood ed., 1881); Ahern v. Collins, 39 Mo. 145,

150 (1866); Herman v. Brookerhoff, 8 Watts 240, 241 (Pa. 1839);

Hogg v. Pinckney, 16 S.C. 387, 392 (1882). And in suits for malicious arrest, just like in suits for malicious prosecution, courts

held that “[t]he new action must not be brought before the first

be determined; because till then it cannot appear that the first

was unjust.” Cardival v. Smith, 109 Mass. 158, 158 (1872);

Hogg, 16 S.C. at 396.

deprived of liberty as a result of the fabrication of evidence by a government officer . . . .” (quoting Zahrey

v. Coffey, 221 F.3d 342, 349 (2d Cir. 2000))). One

need not cast about for a “most” analogous tort, therefore, to conclude that the deferred-accrual rule can,

and should, be borrowed in the process of “applying,

selecting among, or adjusting common-law approaches” here—a process centered around “the values and

purposes of the constitutional right at issue.” Manuel, 137 S. Ct. at 921.

Indeed, considering the similar accrual rule for

the tort of malicious prosecution points in the same

direction. As Petitioner emphasizes, such claims do

not accrue until the allegedly malicious prosecution

has terminated in the plaintiff’s favor. This rule,

whatever its original rationale, ensures that accrual

is deferred as long as a victim remains threatened by

the baseless prosecution he seeks to challenge—that

is, as long as “the prosecution is persisted in and kept

hanging over the head of the plaintiff.” 2 Addison,

supra, § 852, at 65; see Cardival, 109 Mass. at 158-59

(in malicious prosecution, “an acquittal by a jury

must be shown,” and “a nolle prosequi entered by the

attorney for the government is not sufficient; for . . .

another indictment may still be found on the same

complaint”).

Notably, a person could traditionally be liable for

malicious prosecution if he “continued” a criminal

proceeding that was initiated by another person

without his participation. 2 Addison, supra, §§ 857,

872, at 76, 85; 1 Hilliard, supra, at 426 (“one may be

liable for the continuance of a prosecution, after notice of it, though not commenced by him”); Thomas M.

Cooley, A Treatise on the Law of Torts 187 (1879) (a

witness giving false evidence who was not involved in

the decision to commence prosecution can be held lia-

ble if “he interferes improperly afterwards”); Finley v.

St. Louis Refrigerator Co., 99 Mo. 559, 13 S.W. 87, 88

(1890) (“[I]t was not vital to plaintiff’s recovery that

he should show that defendants commenced and continued the prosecution maliciously. If he proved that

it was either so commenced or continued by them, it

would be sufficient to support his case . . . .” (emphasis added)). As this rule illustrates, a malicious prosecution violation continues throughout the pendency

of the prosecution. As such, its accrual rule dovetails

with the rule for false imprisonment: so long as a

plaintiff’s liberty is still being infringed—whether by

an unauthorized confinement or by the need to face

spurious criminal charges—the statute of limitations

does not begin running.5

Together, the accrual rules of false imprisonment

and malicious prosecution form a distinct alternative

to the “standard” rule embraced by the court below.

And that alternative provides a better fit for Petitioner’s constitutional claim.

D. In addition, applying this alternative rule better serves the “chief goals” of Section 1983, “compensation and deterrence.” Hardin v. Straub, 490 U.S.

536, 539 (1989); cf. Burnett v. Grattan, 468 U.S. 42,

5 The court below attempted to distinguish malicious prosecution by stating that “the harm—and the due process violation—is in the use of the fabricated evidence to cause a liberty

deprivation, not in the eventual resolution of the criminal proceeding.” Pet. App. 13a. While that is true, malicious prosecution is no different. After all, malicious prosecution is entirely

focused on the wrongful initiation of legal proceedings. See, e.g.,

Herman, 8 Watts at 241 (“The gist of the action . . . is the origination of a malicious and groundless prosecution, which ipso

facto put the party in peril.”). Despite the fact that instigating a

prosecution is the legal wrong, accrual is deferred so long as the

party remains “in peril.” Id.

55 (1984) (“the central objective of the Reconstruction-Era civil rights statutes . . . is to ensure that individuals whose federal constitutional or statutory

rights are abridged may recover damages or secure

injunctive relief”). Without this rule, many victims of

fabricated evidence will see their causes of action accrue during, or even before, their criminal trials.

Forcing such individuals to sue then, or not at all,

will inevitably discourage meritorious claims. See

Pet’r Br. 55-56.

To be sure, the goal of Section 1983 is not simply

to allow the most plaintiffs to sue. Robertson v.

Wegmann, 436 U.S. 584, 593 (1978) (“If success of the

§ 1983 action were the only benchmark, . . . the appropriate rule would then always be the one favoring

the plaintiff . . . .”). But here, without a rule deferring accrual until termination, valid claims of constitutional violations will be discouraged for reasons

that do not promote any of the statute’s goals. Quite

the contrary: the very reason individuals may be

afraid to file suit against an offending state official is

that they are still at risk of suffering the dire legal

consequences of that official’s malfeasance. Cf. Pet’r

Br. 2 (noting that it was Respondent’s choice whether

or not to try Petitioner a second time). Sanctioning

this perverse result would be entirely contrary to “the

settled § 1983 policy of deterring officials’ unconstitutional behavior.” Hardin, 490 U.S. at 542.

“There is, of course, a federal interest in disposing of all litigation in the federal courts as expeditiously as possible,” but that interest “is vindicated by

all statutes of limitations and always must be balanced against the countervailing interest in allowing

valid claims to be determined on their merits.” Id. at

542 n.10; see Wilson, 471 U.S. at 272 (adopting an interpretation of Section 1983 that “best fits the stat-

ute’s remedial purpose”); Owen, 445 U.S. at 636 (the

Forty-Second Congress anticipated that Section 1983

would be interpreted broadly to promote its remedial

goals).

A deferred-accrual rule is also appropriate here

because it promotes “uniformity,” one of Section

1983’s “subsidiary goals.” Hardin, 490 U.S. at 539.

Under this rule, fabrication-of-evidence claims will

never accrue before the relevant criminal proceedings

have terminated, and in most cases they will accrue

upon termination. (Exceptions may arise where a

plaintiff had no way of knowing about the fabricated

evidence until later.) By reducing the number of scenarios in which accrual dates hinge on a plaintiff’s

awareness, or presumed awareness, of a violation,

this rule offers greater predictability. A standard accrual date that in most cases cannot seriously be

challenged will minimize the “uncertainty and timeconsuming litigation that is foreign to the central

purposes of § 1983.” Wilson, 471 U.S. at 272.

Some cases present difficult choices between

promoting the breadth of Section 1983’s remedy,

ensuring uniformity, and hewing to the common-law

principles on which the statute was modeled.

Not this case. Here, all three imperatives call for the

same result. This Court can borrow a traditional

common-law rule, employ that rule in service of

protecting constitutional rights, and in the process

make the law’s application simpler and more predictable. And it can accomplish all this by reaffirming

and applying established principles.

The Court

should do so.

CONCLUSION

For the foregoing reasons, the judgment of the

court of appeals should be reversed.

Respectfully submitted,

ELIZABETH B. WYDRA

BRIANNE J. GOROD*

BRIAN R. FRAZELLE

CONSTITUTIONAL

ACCOUNTABILITY CENTER

1200 18th Street NW, Suite 501

Washington, D.C. 20036

(202) 296-6889

brianne@theusconstitution.org

Counsel for Amicus Curiae

March 4, 2019

* Counsel of Record

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.