Amicus Curiae Brief — McDonough v. Smith (No. 18-485)

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No, 18-485

——————————————————————

In the Supreme Court of the United States

EDWARD G. MCDONOUGH, PETITIONER

Vv.

YOUEL SMITH, INDIVIDUALLY AND AS SPECIAL DISTRICT

ATTORNEY FOR THE COUNTY OF RENSSELAER,

NEW YORK, AKA TREY SMITH

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING REVERSAL

NOEL J. FRANCISCO

Solicitor General

Counsel of Record

JOSEPH H. HUNT

Assistant Attorney General

JEFFREY B. WALL

Deputy Solicitor General

JONATHAN Y. ELLIS

Assistant to the Solicitor

General

BARBARA L. HERWIG

DANA L. KAERSVANG

RICHARD MONTAGUE

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@ usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Whether the statute of limitations on a claim for

damages based on the alleged use of fabricated evi-

dence to institute criminal proceedings, brought under

42 U.S.C. 1983, begins to run when the defendant dis-

covers that fabricated evidence has been introduced in

the criminal proceedings or when those proceodings

are terminated in the defendant’s favor.

(I)

TABLE OF CONTENTS

IIT GE GIGI, cccccsscsescessserecccsscenenenterscscissnssteabissbehensvensecse 6

Argument:

The statute of limitations for a Section 1983 claim

seeking damages for the initiation of criminal

proceedings based on fabricated evidence does not

begin to run until those proceedings are terminated

in the criminal defendant’s [aVOP..........0sssereeeersereeeeneeeneers 9

Il.

II.

The statute of limitations on a Section 1983 claim

seeking damages for the initiation of criminal

proceedings based on fabricated evidence begins

to run when the plaintiff has a complete and

present cause Of ActiOn .........ssssssrsseeseeessresereseesensees 10

A Section 1983 plaintiff seeking damages for the

initiation of criminal proceedings based on

fabricated evidence does not have a complete and

present cause of action until those proceedings

Coprpenetin Bp BD GG cascccasnsscscesscscesnesssnsestessensesscescecesees 13

A. Petitioner’s Section 1988 claim asserts a

constitutional right to be free from criminal

prosecution on the basis of fabricated evidence... 13

B. Malicious prosecution is the most analogous

common-law tort to petitioner’s constitutional

claim iecereeciiinainitendinadenibdeiistennietsenessnnes 17

C. The Court should adopt the favorable-

termination requirement as an element of the

Cummttbartineed 0606 ccccccecssccscsnsssceressscsnsscsssescscsevscseccees 20

On remand, petitioner’s claim likely should be

dismissed on the basis of absolute prosecutorial

(IIT)

TABLE OF AUTHORITIES

Cases: Page

Albright v. Oliver, 510 U.S, 266 (1994) .....cccccccsesseeseeneneeees 16

Baker v. McCollan, 443 U.S. 137 (1979) ...ccccccseessereeeeeee 12, 13

Bay Area Laundry & Dry Cleaning Pension Trust

Fund v. Ferbar Corp. of Cal., Ine., 522 U.S. 192

(1997). saseaitintanidantnciienaiednarecseatseseesens ll

Bivens v. Six Unknown Named Agents of Fed.

Bureau of Narcotics, 403 U.S. 388 (1971) ....cccccccceeeeereees 1

Black v. Montgomery Cnty., 835 F.3d 358

(3d Cir. 2016), cert. denied, 137 S. Ct. 2093 (2017).... 14, 25

Britton v. Maloney, 196 F.3d 24 (1st Cir. 1999),

cert. denied, 530 U.S. 1204 (2000) .......ccccccceeeeseeerereeeeeene 15

Brower v. County of Inyo, 489 U.S. 593 (1989) .......0s0 16

Buckley v. Fitzsimmons, 509 U.S. 259 (1993)........ 30, 31, 32

Burns v. Reed, S00 U.S. 478 (1991) ..cccccccecccecceeseereeeeeenenes 8, 30

Carey v. Piphus, 435 U.S. 247 (1978) ..ccccccccesereeees 12, 17, 19

Cutter v. Wilkinson, 544 U.S. 709 (2005) ........cccccccerseeceneeeee 30

Degen v. United States, 517 U.S. 820 (1996) ......cccccceeeveeee 22

Fisher v. Bristow, (1779) 99 Eng. Rep. 140 (K.B.) ........... 23

Graham v. Connor, 490 U.S. 386 (1989) ........ccccccccccceeeeeeeee 11

Green v. Brennan, 136 8. Ct. 1769 (2016) .0......cccccccccccceeeeee 11

Hartman v. Moore, 547 U.S. 250 (2006) ..........ccccccccceeeenenee 17

Heck v. Humphrey, 512 U.S. 477 (1994) ....ccccccccceeenees passim

Imbler v. Pachtman, 424 U.S. 409 (1976)........cccccccseeeeee 4, 30

Kaley v. United States, 571 U.S. 320 (2014) .....ccccceceeesenees 24

Lunsford v. Dietrich, 9 So. 308 (Ala. 1891) ....ccccccccereeeerenees 25

Manuel v. City of Joliet, 137 8. Ct. 911 (2017).......... passim

Miller v. Pate, 386 U.S. 1 (1967) ....ccccccsesssseerserseeneneseeneseesenes 14

Mooney v. Holohan, 294 U.S. 108 (1985) ......0ccccccceeereee 14, 16

Morse v. Fusto, 804 F.3d 538 (2d Cir. 2015),

cert. denied, 137 S. Ct. 126 (2016) ...........ccccccseeserserseeee 16, 25

Cases—Continued: Page

Napue v. Illinois, 360 U.S. 264 (1959)....ccccserserseeseeeenenees 14

Nebraska Press Ass'n v. Stuart, 427 U.S. 5389 (1976)........ 17

Preiser v. Rodriguez, 411 U.S. 475 (1978)....ccscseevees 27, 28

Pyle v. Kansas, 317 U.S. 213 (1942) .....ccccceseeeoseeeeeeerneeennees 14

Rehberg v. Paulk, 566 U.S. B56 (2012).....cccseeeeeeeeeeserennes 20

Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123

GE CR BIB UD csvcscenrececzsecessncencensssenscsvenesescsnssevssessscocnocsecsocseee 16

Ruff v. Runyon, 258 F.3d 498 (6th Cir. 2001) .....cccccceecenees l

Siegert v. Gilley, (00 U.S. 226 (1991)....ccsesvreveneererenenennees 19

Strickler v. Greene, 527 U.S. 2638 (1999) ....cccccercerenceenenenenes 25

United States v. Agurs, 427 U.S. 97 (1976) .....ccccseeceeee 25, 26

Wallace v. Kato, 549 U.S. 384 (2007)......11, 12, 17, 21, 26, 29

Whitfield v. Westbrook, 40 Miss. 311 (1866) .......csereesvees 25

Whitlock v. Brueggemann, 682 F.3d 567 (7th Cir.

2012), cert. denied, 568 U.S, 1143 (2013) .......ccccccesereeeneee 14

Wilson v. Garcia, 471 U.S. 261 (1985) .....ccccceseseeeeenees 12, 27

Zahrey v. Coffey, 221 F.3d 342 (2d Cir. 2000)... 14, 15, 16, 31

Constitution, statutes, and rules:

U.S. Const.:

RII TTT aniicsecdadistciicicnstiedansntiiveilenessisnnnions 3, 4, 13, 15, 16

SII A iaceccinshennscliaeapdiniputcedcienditeccinistapenbénddimeniibitivedais 3, 13, 23

Se er GR crersiemctccentecsccneemnesenesceeeniene 16

I Oe cierentnntecinninnsninsnstinessinenssesnamensenanenies 3, 13, 15, 16

BE TET stainicthiiatcriseninnstasinmnnninenntinies 3, 13

Due Process Clause ........:.-sc-ssssessesseresesseseees 13, 15, 16

BIA sich iscsincmietencinpsisstesepuctnniensianietnnainaineitintls 9, 22, 30

ep ee ieteicenneienecsssnnnneansnaeensnperninitnscnntannenpuent 9, 22, 30

Fe TF Fi crccenccsscesccscsscevsczsccncersseanssorenescensenscssscseeets passim

SF IE HITED citotecsensstesniesadiomaiaiicnentdinniemcdaseimecnnianans 11

FOG, BR. CBv. FP. GEGD) ccorecesscscsecececsccsscsnsessescsnssosssevvenosossscsnscoseses 5

Rule—Continued: Page

N.Y. C.P.L.R. 214(5) (McKinney 2008) ........ccsceseeseeeereeee 3,9

Miscellaneous:

Melville M. Bigelow, Elements of the Law of Torts

(OFF cnccscecnscassenesscremesnmessennsmnneerntininnmennmsensinmaninnets 25

Thomas M. Cooley, A Treatise on the Law of Torts

CRIED cccnsocersecsnsnccsnssessmsesssnasecssmessonmianisttnensinesaninnnnsisewestaint 17

Dan B. Dobbs et al. The Law of Torts (2d ed. 2018) ... 22, 24

George W. Field, A Treatise on the Law of

EEE REE ACSA REI 18, 19

2 Simon Greenleaf, A Treatise on the Law of

Evidence (7th @d, 1858) ....cccsssssssssesssseesesssssessessssseeseereneeees 18

1 Fowler V. Harper et al., Harper, James and Gray

ON Torts (Bd Cd. 2OOG)........cesssererseseessssersssssrresseessssssseesseeeees 18

1 Francis Hilliard, The Law of Torts or Private

Wrongs (1866) a =F

W. Page Keeton et al., Presetr and testes nthe

Law of Torts (5th @d, 1984) .....ccccsserserceessreeeeesenee 17, 22, 24

Martin L. Newell, A Treatise on the Law of

Malicious Prosecution (1892) ...ccscseeersereeesseeerreneeeennenees 17

Restatement (Second) of Torts (1977).......c0c0cceseeeeeeeee 17, 25

8 Stuart M. Speiser et al., The American Law of

ZONES CRIED cccunssscsccnsscncscctunernsscntearnsenasecnnseieninensiaeiih 22, 23

Jn the Supreme Court of the United States

No. 18-485

EDWARD G. MCDONOUGH, PETITIONER

Vv.

YOUEL SMITH, INDIVIDUALLY AND AS SPECIAL DISTRICT

ATTORNEY FOR THE COUNTY OF RENSSELAER,

NEw YORK, AKA TREY SMITH

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING REVERSAL

INTEREST OF THE UNITED STATES

The question presented in this case is when the stat-

ute of limitations begins to run on a claim against local

officials under 42 U.S.C. 1983 based on the alleged use

of fabricated evidence to institute criminal proceedings.

The courts of appeals generally apply the same accrual

rules for constitutional tort claims against state officers

under Section 1983 to claims against federal officers un-

der Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics, 403 U.S. 388 (1971). See Ruff v.

Runyon, 258 F.3d 498, 502 (6th Cir. 2001) (collecting

cases). The United States has a substantial interest in

the circumstances in which federal officers may be held

liable for damages in civil actions for alleged violations

of constitutional rights, as well as in the procedures

available for safeguarding those rights.

(1)

STATEMENT

1. In 2009, petitioner Edward McDonough was serv-

ing as a commissioner of the Board of Elections for

Rensselaer County, New York. Pet. App. 4a. This case

concerns an alleged scheme by respondent Youel Smith

and others to falsely accuse petitioner of participating

in absentee-ballot fraud during the 2009 primary elections

in Troy, New York, a city within Rensselaer County.

According to petitioner, several individuals associ-

ated with the Democratic and Working Families parties

in Troy attempted to affect the outcome of the 2009

Working Family Party primary election in Troy by

forging signatures and providing false information on

dozens of absentee-ballot applications, and then falsely

voting with the fraudulently obtained absentee ballots.

Pet. App. 4a, 25a-27a. As commissioner, petitioner ap-

proved the forged applications, but he claims not to

have known that they were forged. /d. at 4a-5a.

Upon the fraud’s discovery, the district attorney for

Rensselaer County disqualified his office from the in-

vestigation and any subsequent prosecution based on

his personal connections to suspected participants in

the fraud. Pet. App. 5a, 28a-29a. After the Rensselaer

County Court appointed respondent as special prosecu-

tor for any criminal action related to the fraud, peti-

tioner alleges that respondent and several co-defendants

engaged in a scheme to frame petitioner for the fraud.

Id. at 5a, 28a-41a.

Among other things, petitioner alleges that respond-

ent presented to a grand jury, and then to two petit ju-

ries, false testimony, forged voter affidavits, and faulty

DNA evidence. Pet. App. 5a-6a, 35a-41a. On January

28, 2011, a grand jury charged petitioner with 38 counts

of felony forgery and 36 counts of felony criminal pos-

session of a forged instrument, in violation of New York

law. Id. at 5a, 36a, 40a. The first trial against petitioner

ended in a mistrial. /d. at 5a-6a. A second trial ended

in an acquittal on December 21, 2012. Jd. at 6a, 40a-41a.

2. On December 18, 2015, petitioner filed this action

under 42 U.S.C. 1983, claiming that respondent and sev-

eral co-defendants had violated his constitutional rights

“not to be deprived of liberty as a result of fabrication

of evidence” and “not to be prosecuted maliciously with-

out probable cause.” Compl. Counts I, II (capitalization

altered); see id. 17 1209-1218. Petitioner asserted both

claims under the Fourth, Fifth, Sixth, and Fourteenth

Amendments to the Constitution. /d. 19 1210, 1215. As

a result of the defendants’ conduct, petitioner alleged

that he was “deprived of his liberty,” id. 1 1198; “likely

will suffer * * * injury to his character and good repu-

tation; great mental anguish and pain, and irreparable

injury in his profession,” id. 1 1205; and “sustained ex-

orbitant criminal defense attorney fees and costs,” id.

{1 1206. He requested $6 million in compensatory dam-

ages, $2 million in punitive damages, and attorneys’ fees

and costs. Jd. at 173-174.

a. In September 2016, the district court dismissed

petitioner’s first claim—the “fabrication of evidence

claim,” Pet. App. 47a—as untimely. /d. at 20a-84a. The

court observed that a Section 1983 claim is subject to

the statute of limitations applicable to personal-injury

claims in the State in which the federal court sits, which

in New York is three years. Pet. App. 47a (citing N.Y.

C.P.L.R. 214(5) (McKinney 2003)). The court reasoned

that “fabrication of evidence claims accrue,” and the

statute of limitations begins to run, “when the plaintiff

learns, or should have learned, that the evidence was

fabricated.” /d. at 48a. And it determined that petitioner

knew or should have known of all of the fabricated evi-

dence at some point more than three years before he

filed his complaint in December 2015. /d. at 52a-53a.

The district court declined to dismiss petitioner’s

second claim—the “malicious prosecution claim.” Pet.

App. 48a; see id. at 47a-48a. Unlike a “fabrication of

evidence claim,” the court reasoned that a malicious-

prosecution claim “‘does not accrue until the criminal

proceedings have terminated in the plaintiff’s favor.’”

Id. at 47a (quoting Heck v. Humphrey, 512 U.S. 477, 489

(1994)) (brackets omitted). Because petitioner was not

acquitted of the charges until December 21, 2012, the

court concluded that he timely filed his malicious-

prosecution claim on December 18, 2015. Jd. at 48a.

b. Two months later, the district court dismissed the

malicious-prosecution claim against respondent on

absolute-immunity grounds. Pet. App. 85a-137a. The

court determined that petitioner had adequately

pleaded a malicious-prosecution claim under the Fourth

Amendment based on respondent’s use of fabricated ev-

idence to initiate criminal proceedings without probable

cause. Jd. at 95a-106a. But it concluded that respond-

ent was entitled to “absolute prosecutorial immunity”

from that claim. Pet. App. 106a. The court explained

that “[p]rosecutors are entitled to absolute immunity

when they engage in activities ‘intimately associated

with the judicial phase of the criminal process.’” Jbid.

(quoting Imbler v. Pachtman, 424 U.S. 409, 430 (1976)).

It reasoned that, “because the initiation and pursuit of

a criminal prosecution are quintessential prosecutorial

functions, the prosecutor has absolute immunity for the

initiation and conduct of a prosecution unless he pro-

ceeds in the clear absence of all jurisdiction.” Jd. at

109a-110a (brackets, citation, and internal quotation

marks omitted). And the court found no basis to con-

clude that respondent had acted in the clear absence of

jurisdiction. Jd. at 110a-111a.

Following the dismissal of all claims against re-

spondent, the district court entered judgment as to re-

spondent under Federal Rule of Civil Procedure 54(b)

and certified its decisions dismissing the claims against

him for interlocutory appeal. Pet. App. 4a.

3. The court of appeals affirmed the district court’s

orders. Pet. App. la-19a.

The court of appeals described petitioner’s claims

against respondent as (1) a due-process claim based on

fabricated evidence and (2) a malicious-prosecution

claim. Pet. App. 3a. As to the due-process claim, the

court reasoned that “[u)nder the Fifth and Fourteenth

Amendments’ Due Process Clauses, individuals have

‘the right not to be deprived of liberty as a result of the

fabrication of evidence by a government officer.’” Jd. at

10a (citation and internal quotation marks omitted). It

stated that a fabrication-of-evidence claim accrues

“(1) when a plaintiff learns of the fabrication and it is

used against him, and (2) his liberty has been deprived

in some way.” /bid. For petitioner, the court reasoned,

that was “at the latest, by the end of his first trial, after

all of the prosecution’s evidence had been presented.”

Id. at 13a-14a.

The court of appeals rejected the reasoning of other

circuits that “due process fabrication” claims accrue

“only after criminal proceedings have terminated be-

cause [they] are analogous to claims of malicious prose-

cution, which require termination of the criminal pro-

ceeding in the defendant’s favor before suit may be

brought.” Pet. App. 12a. In the Second Circuit’s view,

“the nature of [petitioner]’s due process claim is differ-

ent from a malicious prosecution claim.” Jd. at 8a. The

court concluded that “[b]ecause the injury for this con-

stitutional violation occurs at the time the evidence is

used against the defendant to deprive him of his liberty,

whether it be at the time he is arrested, faces trial, or is

convicted, it is when he becomes aware of that tainted

evidence and its improper use that the harm is complete

and the cause of action accrues.” Jd. at 18a.

The court of appeals likewise rejected petitioner’s

argument that his due-process claim is timely because

his prosecution represented a “continuing violation” as

long as the proceedings continued. Pet. App. 16a (cita-

tion omitted). “Characterizing defendants’ separate

wrongful acts as having been committed in furtherance

of a conspiracy or as a single series of interlocking

events,” it reasoned, “does not postpone accrual of

claims based on individual wrongful acts.” bid. (cita-

tion omitted).

The court of appeals also affirmed the dismissal of

the malicious-prosecution claim. Pet. App. 17a-18a.

The court explained that prosecutors “are entitled to

absolute immunity when acting as advocates for the

state, such as initiating prosecutions or at trial.” Jd. at

18a. Because petitioner's malicious-prosecution claim

“relates only to [respondent]’s prosecutorial function,”

the court held that absolute immunity applied. /bid.

SUMMARY OF ARGUMENT

The statute of limitations for a Section 1983 claim

seeking damages for the initiation of criminal proceed-

ings based on fabricated evidence does not begin to run

until those proceedings are terminated in the criminal

defendant’s favor.

I. Section 1983 creates a species of tort liability for

the vindication of federal constitutional rights, in-

formed by general common-law principles. Under those

principles, a claim generally accrues, and the limitations

period begins, when the plaintiff has a complete and

present cause of action. Thus, to determine when the

statute of limitations begins to run on a Section 1983

claim, a court generally must determine the elements of

the claim. Under this Court’s precedents, that requires

(1) identifying the specific constitutional right at issue,

(2) determining the common-law cause of action that

provides the closest analogy to the constitutional claim,

and (3) deciding which of the elements of that common-

law cause of action are consistent with “the values and

purposes of the constitutional right.” Manuel v. City of

Joliet, 187 S. Ct. 911, 921 (2017).

II. Applying that analysis, the statute of limitations

on petitioner’s Section 1983 claim did not begin to run

until he was acquitted of the criminal charges against

him. The constitutional right at issue in this case natu-

rally sounds in due process. It is well established that

the knowing use of fabricated evidence to obtain a con-

viction violates due process where the fabricated evi-

dence is material to the verdict. Although petitioner

was acquitted, the courts of appeals have generally held

that the knowing use of fabricated evidence may violate

due process even absent a conviction, where the defend-

ant can show that the evidence was used to bring about

some other deprivation of liberty, as petitioner alleges it

was here through the initiation of criminal proceedings.

The most analogous common-law tort to such a claim

is malicious prosecution, the gravamen of which is that

the plaintiff was improperly subjected to criminal pros-

ecution to the detriment of his liberty, property, or rep-

utation. One element of a common-law malicious-

prosecution claim is that the allegedly unfounded pros-

ecution was eventually terminated in the tort plaintiff's

favor. As an element of petitioner’s Section 1983 claim,

a favorable-termination requirement would serve all

the same interests it does at common law. It would be

consistent with the due-process principles underlying

petitioner’s claim, and it would reinforce broader Sec-

tion 1983 principles.

For those reasons, a Section 1983 plaintiff seeking

damages for the initiation of criminal proceedings based

on fabricated evidence should not have a complete and

present cause of action until the criminal proceedings

are terminated in his favor. Because petitioner filed his

Section 1983 claim within three years of the favorable

termination of the criminal proceedings against him, his

claim is timely. The court of appeals’ judgment there-

fore should be reversed.

III. Onremand, the district court should likely dis-

miss petitioner’s Section 1983 claim against respondent

on the ground of absolute immunity. Section 1983 incor-

porates certain common-law immunities that were well

established when it was enacted in 1871. And “at com-

mon law prosecutors were immune from suits for mali-

cious prosecution and for defamation,” including for “the

knowing use of false testimony before the grand jury

and at trial.” Burns v. Reed, 500 U.S. 478, 485 (1991).

As petitioner's argument in this Court makes clear, his

claim against respondent is based on such conduct.

ARGUMENT

THE STATUTE OF LIMITATIONS FOR A SECTION 1983

CLAIM SEEKING DAMAGES FOR THE INITIATION OF

CRIMINAL PROCEEDINGS BASED ON FABRICATED EV-

IDENCE DOES NOT BEGIN TO RUN UNTIL THOSE PRO-

CEEDINGS ARE TERMINATED IN THE CRIMINAL DE-

FENDANT’S FAVOR

The fabrication and use of evidence in a criminal pro-

ceeding is reprehensible conduct. The United States

can bring criminal charges against a prosecutor who

willfully violates an individual’s constitutional rights

through the use of fabricated evidence, see 18 U.S.C.

242, or conspires with a witness or police officer to do

so, see 18 U.S.C, 241. This case concerns when an indi-

vidual prosecuted on the basis of such evidence may

bring a claim for damages under 42 U.S.C. 1983—

specifically, when such a claim must be filed to be timely.

The parties agree that New York’s three-year stat-

ute of limitations for personal-injury claims provides

the relevant limitations period. Pet. App. 9a; see N.Y.

C.PL.R. 214(5) (MeKinney 2003). The question before

the Court is when that period began to run. Petitioner

offers three avenues for answering that question in his

favor: (1) adopting what he calls the distinctive accrual

rule of malicious prosecution for his fabrication-of-

evidence claim, Pet. Br. 19-30; (2) defining when a Sec-

tion 1983 plaintiff in these circumstances has a complete

and present cause of action and applying the standard

accrual rule, id. at 31-44; or (3) holding that any consti-

tutional violation continued throughout the criminal pro-

ceedings, such that the limitations period did not begin

until the proceedings ended, even if petitioner had a com-

plete cause of action before that time, id. at 44-50.

In the government’s view, the second of those op-

tions is the correct one. There is no distinctive accrual

rule for claims of malicious prosecution at common law.

But because the plaintiff must show, as an element of

his malicious-prosecution claim, that the criminal pro-

ceedings terminated in his favor, the statute of limita-

tions cannot begin to run on such a claim until the crim-

inal proceedings are over. For all the reasons that the

common law adopted a favorable-termination require-

ment for malicious-prosecution claims, the Court should

adopt the same requirement for petitioner’s closely

analogous claim under Section 1983 that a prosecutor

used fabricated evidence to initiate charges against him.

See pp. 20-29, infra. Because petitioner filed his Sec-

tion 1983 claim within three years of the favorable ter-

mination of criminal proceedings against him, the Court

need not address the difficult questions that would arise

under petitioner’s alternative continuing-violations the-

ory. Although the judgment below should be reversed,

on remand, petitioner’s claim is likely barred by prose-

cutorial immunity.

I. The Statute Of Limitations On A Section 1983 Claim Seek-

ing Damages For The Initiation Of Criminal Proceedings

Based On Fabricated Evidence Begins To Run When The

Plaintiff Has A Complete And Present Cause Of Action

Section 1983 provides that “[e]very person who, un-

der color of any statute, ordinance, regulation, custom,

or usage, of any State *** subjects, or causes to be

subjected, any citizen of the United States or other per-

son within the jurisdiction thereof to the deprivation of

any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party in-

jured in an action at law, suit in equity, or other proper

proceeding for redress.” 42 U.S.C. 1983. As this Court

has explained, the statute “creates a species of tort lia-

bility” for vindicating federal constitutional rights.

Heck v. Humphrey, 512 U.S. 477, 483 (1994) (citation

omitted). For certain aspects of that cause of action,

such as the statute of limitations, federal law “looks to

the law of the State in which the cause of action arose.”

Wallace v. Kato, 549 U.S. 384, 387 (2007); see 42 U.S.C.

1988(a). For others, the federal rules “conform|[] in gen-

eral to common-law tort principles.” Wallace, 549 U.S.

at 388.

“(T]he accrual date of a [Section] 1983 cause of ac-

tion” is one of those aspects governed by general common-

law principles without “reference to state law.” Wal-

lace, 549 U.S. at 388. Under those principles, “it is ‘the

standard rule that [accrual occurs] when the plaintiff

has “a complete and present cause of action,”’ that is,

when ‘the plaintiff can file suit and obtain relief.’” /bid.

(quoting Bay Area Laundry & Dry Cleaning Pension

Trust Fund v. Ferbar Corp. Of Cal., Inc., 522 U.S. 192,

201) (1997) (citation omitted) (brackets in original). To

determine when a Section 1983 claim accrues, a court

therefore generally must determine when the elements

of the cause of action will be met. “At that point—and

not before—he can file a suit.” Green v. Brennan,

136 S. Ct. 1769, 1777 (2016). “So only at that point—and

not before—does he have a ‘complete and present’ cause

of action.” /bid.

The Court’s precedents provide a clear roadmap for

that determination. The “threshold” task is to “‘iden-

tify the specific constitutional right’ at issue.” Manuel

v. City of Joliet, 137 S. Ct. 911, 920 (2017) (citation omit-

ted); see Graham v. Connor, 490 U.S. 386, 394 (1989).

After all, Section 1983 “is not itself a source of substan-

tive rights, but a method for vindicating federal rights

elsewhere conferred.” Baker v. McCollan, 443 U.S. 137,

144 n.3 (1979). Only “[a}fter pinpointing” the right at

issue, may a court “determine the elements of, and rules

associated with, an action seeking damages for its vio-

lation.” Manuel, 137 S. Ct. at 920.

To then determine the elements of the Section 1983

claim, courts again “look *** to the common law of

torts.” Manuel, 137 S. Ct. at 920. As the Court has ex-

plained, “over the centuries the common law of torts has

developed a set of rules to implement the principle that

a person should be compensated fairly for injuries

caused by the violation of his legal rights.” Carey v.

Piphus, 435 U.S. 247, 257 (1978); see Heck, 512 U.S. at

483; Wilson v. Garcia, 471 U.S. 261, 277 (1985). Those

pre-existing rules, “defining the elements of damages

and the prerequisites for their recovery,” provide valu-

able guidance in defining the contours of constitutional

torts under Section 1983. Carey, 435 U.S. at 257-258.

In particular, the Court’s precedents require (1) iden-

tifying the common-law cause of action that provides

“the closest analogy” to the type of constitutional claim

at issue, Heck, 512 U.S. at 484, and (2) incorporating the

elements (or other rules) of that common-law cause of

action that are consistent with “the values and purposes

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

at 921; see, e.g., Wallace, 549 U.S. at 388-390 (incorpo-

rating the accrual rule for false imprisonment);

Heck, 512 U.S. at 483-487 (incorporating the favorable-

termination element from malicious prosecution).

IL. A Section 1983 Plaintiff Seeking Damages For The Initiation

Of Criminal Proceedings Based On Fabricated Evidence

Does Not Have A Complete And Present Cause Of Action

Until Those Proceedings Terminate In His Favor

Under this Court’s analysis that looks to the closest

analogous tort at common law, a Section 1983 plaintiff

seeking damages for the initiation of criminal proceed-

ings based on fabricated evidence does not have a com-

plete and present cause of action until those proceed-

ings are terminated in his favor.

A. Petitioner’s Section 1983 Claim Asserts A Constitu-

tional Right To Be Free From Criminal Prosecution On

The Basis Of Fabricated Evidence

Before determining the proper elements of a consti-

tutional tort, “it is necessary to isolate the precise con-

stitutional violation” that has been alleged. Baker,

443 U.S. at 140; see Manuel, 137 S. Ct. at 920. In the

Section 1983 claim at issue here, petitioner alleges that

respondent and respondent’s co-defendants violated his

“constitutional right not to be deprived of liberty as a

result of fabrication of evidence.” Compl. 171 (capitali-

zation altered). Petitioner’s complaint lists the Fourth,

Fifth, Sixth, and Fourteenth Amendments as potential

bases for that right. Jd. 11210. The government agrees

with petitioner (Pet. Br. 42-43) that the Court does not

need to determine the particular source of the right, be-

cause the contours of the constitutional right will not

vary in any respect relevant here depending on where

it is housed. To the extent the Court addresses the con-

stitutional question, however, petitioner’s claim most

naturally sounds in due process.

1. It is well established that “a conviction obtained

through use of false evidence, known to be such by rep-

resentatives of the State,” violates the Due Process

‘lause of the Fourteenth Amendment. Napue v. /Ili-

nois, 360 U.S. 264, 269 (1959); see Miller v. Pate,

386 U.S. 1, 7 (1967) (“[T]he Fourteenth Amendment

cannot tolerate a state criminal conviction obtained by

the knowing use of false evidence.”); Pyle v. Kansas,

317 U.S. 213, 216 (1942) (recognizing a due-process vio-

lation where “perjured testimony” is “knowingly used

by the State authorities to obtain [a] conviction”);

Mooney v. Holohan, 294 U.S. 103, 112 (1935) (due pro-

cess “cannot be deemed to be satisfied *** if a State

has contrived a conviction through * * * a deliberate de-

ception of court and jury”).

Although petitioner does not allege that he was con-

victed on the basis of fabricated evidence—he was in

fact acquitted of the charges, see p. 3, supra—the

courts of appeals have generally held that the knowing

use of fabricated evidence may violate due process even

absent a conviction, where the defendant can show that

she was “deprive[d] * * * of her liberty in some [other]

way.” Whitlock v. Brueggemann, 682 F.3d 567, 580

(7th Cir. 2012), cert. denied, 568 U.S. 1143 (2013); see

Black v. Montgomery Cnty., 835 F.3d 358, 371 (3d Cir.

2016) (“[A]n acquitted criminal defendant may have a

stand-alone fabricated evidence claim against state ac-

tors under the due process clause of the Fourteenth

Amendment if there is a reasonable likelihood that, ab-

sent that fabricated evidence, the defendant would not

have been criminally charged.”), cert. denied, 137 S. Ct.

2093 (2017); Zahrey v. Coffey, 221 F.3d 342, 348 (2d Cir.

2000) (holding that depriving someone of their liberty

on the basis of fabricated evidence is a “classic constitu-

tional violation: the deprivation of his liberty without

due process of law”).

Petitioner relies on that authority in asserting his

Section 1983 claim. See Compl. 99% 170-171 (citing

Zahrey, supra). The parties do “no[t] dispute” that pe-

titioner “suffered a liberty deprivation” as a result of

the criminal proceedings. Pet. App. 10a; see Compl.

1 1199 (alleging that, upon his arraignment, petitioner

was required to “remain within the jurisdiction of the

Court and surrender any passport”). And both the dis-

trict court and the court of appeals analyzed the claim

principally in those terms. See Pet. App. 8a-17a (dis-

cussing the timeliness of petitioner’s “due process

claim”); id. at 49a (analyzing the timeliness of peti-

tioner’s claim as arising “under the due process|]

clauses of the Fifth and Fourteenth Amendments”). As

the courts below recognized, and petitioner implicitly

acknowledges in his complaint, his claim that local offi-

cials unjustly deprived him of liberty through the use of

fabricated evidence most naturally arises under the

Due Process Clause of the Fourteenth Amendment.

2. Petitioner also suggests (Br. 42) that his fabrication-

of-evidence claim could arise under the Fourth Amend-

ment or even the Sixth Amendment. The Fourth

Amendment is an unlikely home for petitioner’s as-

serted constitutional right. The “Fourth Amendment

does not speak of unreasonable ‘prosecutions,’ and in-

stead refers only to unreasonable ‘searches and sei-

zures.’” Britton v. Maloney, 196 F.3d 24, 28 (ist Cir.

1999) (citation omitted), cert. denied, 530 U.S. 1204

(2000). Although this Court has recognized that the

Fourth Amendment “establishes the minimum constitu-

tional ‘standards and procedures’ not just for arrest but

also for ensuing ‘detention,’” Manuel, 137 S. Ct. at 917

(citation omitted), being subjected to the judicial pro-

cess is not naturally considered a “seizure” within the

meaning of the Fourth Amendment. See Brower v.

County of Inyo, 489 U.S. 593, 596 (1989) (“Violation of

the Fourth Amendment requires an intentional acquisi-

tion of physical control.”).'

As to the Sixth Amendment, petitioner states that

the “Second Circuit has suggested that fabrication of

evidence could arise under the Sixth Amendment, which

guarantees a fair trial before an impartial jury.” Pet.

Br. 42 n.13 (citing Morse v. Fusto, 804 F.3d 538, 547 n.7

(2d Cir. 2015), cert. denied, 137 S. Ct. 126 (2016)). The

Sixth Amendment guarantees “[i}n all criminal prosecu-

tions” “the right to a speedy and public trial, by an im-

partial jury.” U.S. Const. Amend. VI. The suggestion,

however, that it also protects the right not to be subject

to criminal prosecution based on fabricated evidence

seems to stem from mistaken dicta in a Second Circuit

decision interpreting the Due Process Clause.* The

' In Albright v. Oliver, 510 U.S. 266 (1994), the Court declined to

recognize a freestanding substantive due-process right “to be free

from criminal prosecution except upon probable cause,” but “ex-

press[ed] no view” as to whether the plaintiff might have a Fourth

Amendment claim. /d. at 268, 275 (plurality opinion). In her concur-

ring opinion, Justice Ginsburg reasoned that restrictions imposed to

secure a defendant’s court attendance during trial, such as travel re-

strictions, may constitute a continuing “seizure.” Jd. at 277-278.

® In Morse, the Second Circuit stated that it had been “‘incon-

sistent as to whether’ fabrication of evidence claims ‘arise under the

Sixth Amendment *** or under the due process clauses of the

Fifth and Fourteenth Amendments.’” 804 F.3d at 547 n.7 (citation

and brackets omitted). But the decisions it cited were both grounded

in due process. See Zahrey, 221 F.3d at 348; Ricciuti v. N_Y.C.

Transit Auth., 124 F.3d 123, 130 (2d Cir. 1997) (discussing “the pro-

tection[s] of due process of the law and fundamental justice”) (citing

Mooney, supra).

promise of a “fair trial in a fair tribunal is a basic re-

quirement of due process.” Nebraska Press Ass'n v.

Stuart, 427 U.S. 539, 551 (1976).

B. Malicious Prosecution Is The Most Analogous Common-

Law Tort To Petitioner's Constitutional Claim

Having identified the constitutional right at issue,

the Court next “must determine the elements of, and

rules associated with, an action seeking damages for its

violation.” Manuel, 137 S. Ct. at 920. The Court has

looked to common-law torts for valuable guidance in

making that determination. See, eg., Hartman v.

Moore, 547 U.S. 250, 258 (2006); Wallace, 549 U.S. at

388-389; Heck, 512 U.S. at 483-484; Carey, 435 U.S. at

257-258. And while identifying the closest analogy to

particular constitutional claims can sometimes present

a difficult question, that is not so here.

1. At common law, a person who institutes criminal

proceedings “against another from wrongful or im-

proper motives, and without probable cause to sustain

it,” is liable for the tort of malicious prosecution. Martin

L. Newell, A Treatise on the Law of Malicious Prose-

cution § 5, at 6 (1892); see Restatement (Second) of

Torts § 653, at 406 (1977) (Restatement). The elements

are generally described as (1) “[a] suit or proceeding

has been instituted without any probable cause there-

for”; (2) “[t]he motive in instituting [that proceeding]

was malicious”; and (3) “[t]he prosecution has termi-

nated in the acquittal or discharge of the accused.”

Thomas M. Cooley, A Treatise on the Law of Torts 181

(1880); see Newell § 8, at 10 (same); Restatement § 653,

at 406 (combining first two elements); W. Page Keeton

et al., Prosser and Keeton on the Law of Torts § 119, at

871 (5th ed. 1984) (dividing first element into two). The

“gravamen” of such a claim is that “the plaintiff has im-

properly been made the subject of legal process to his

damage.” 2 Simon Greenleaf, A Treatise on the Law of

Evidence 498 (7th ed. 1858).

The common-law tort thus protects the defendant’s

interest in “freedom from unjustifiable and unreasona-

ble litigation,” as well as his interests in reputation,

property, and liberty. 1 Fowler V. Harper et al., Har-

per, James and Gray on Torts § 4.2, at 457 (3d ed. 2006).

Malicious prosecution is a “wrong to character or repu-

tation,” by virtue of the unfounded allegations; an in-

jury “to property, on account of the necessary cost and

expense of defending against unfounded demands or ac-

cusations”; and may include “an injury to the person, as

connected with false imprisonment.” 1 Francis Hilliard,

The Law of Torts or Private Wrongs § 1, at 412 (1866)

(emphasis omitted); see George W. Field, A Treatise on

the Law of Damages § 685, at 543 (1876) (“[W]henever

a person sustains damages to his reputation, life, limb,

liberty, or property, by reason of a malicious prosecu-

tion, he may recover therefor.”).

Petitioner alleges precisely that sort of wrong and

seeks redress for exactly those types of harms. He al-

leges that respondent violated his constitutional rights

by initiating unfounded criminal proceedings against

him based on fabricated evidence. Compl. 1 1211. He

seeks damages for the deprivation of his liberty during

the proceedings, id. 17 1198-1199; for the costs of de-

fending against such unjustified litigation, id. 1 1206;

and for the reputational and professional harm he has

suffered and expects to suffer because of the respond-

ent’s “malicious actions,” id. 17 1205, 1207. In other

words, he is seeking recovery for the harm to “his rep-

utation, life, limb, [and] property, by reason of a mali-

cious prosecution” brought by respondent. Field § 685,

at 543.*

2. The court of appeals rejected the analogy to mali-

cious prosecution, but failed to identify any other anal-

ogous tort. See Pet. App. 12a-13a. The court observed

that the “injury” in a fabrication-of-evidence claim “oc-

curs at the time the evidence is used against the defend-

ant to deprive him of his liberty, whether it be at the

time he is arrested, faces trial, or is convicted.” Jd. at

13a. It reasoned 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 resolu-

tion of the criminal proceeding.” Jbid. It thus con-

cluded that “the nature of [petitioner]’s due process

claim is different from a malicious prosecution claim.”

Id. at 8a.

Contrary to the court’s suggestion, however, the

harm in a malicious prosecution is not in the eventual

resolution of the criminal proceedings either. As dis-

cussed above, the harms redressed by the common-law

tort stem from the initiation of the criminal proceed-

ings. It is the malicious initiation of such proceedings

that wrougfully deprives the defendant of his liberty,

property, or reputation. Petitioner likewise seeks to re-

cover for those same kinds of harms stemming from the

* Whether all such damages are compensable in a Section 1983

action of this sort is a separate question not presented here. See

Carey, 435 U.S. at 258-259 (“[T}he rules governing compensation for

injuries caused by the deprivation of constitutional rights should be

tailored to the interests protected by the particular right in ques-

tion.”); Siegert v. Gilley, 500 U.S. 226, 233 (1991) (“[An] injury to

reputation by itself [iJs not a ‘liberty’ interest protected under the

Fourteenth Amendment.”) (citation omitted).

same sort of violation. The court of appeals’ focus on

those harms therefore only underscores that malicious

prosecution is plainly the most analogous common-law

claim for a Section 1983 plaintiff who seeks damages for

the use of fabricated evidence to initiate criminal pro-

ceedings against him.‘ That conclusion is only rein-

forced by the court of appeals’ failure to identify any

other analogous common-law claim.

C. The Court Should Adopt The Favorable-Termination

Requirement As An Element Of The Constitutional Tort

1. Because the common-law tort of malicious prose-

cution is the most appropriate analogy, the Court must

determine which of the tort’s elements should be incor-

porated into petitioner’s constitutional claim. Although

Section 1983 is not “simply a federalized amalgamation

of pre-existing common-law claims,” Rehberg v. Paulk,

566 U.S. 356, 366 (2012), the Court has recognized that

“[c]Jommon-law principles are meant to guide * * * the

definition of [Section] 1983 claims,” Manwel, 137 S. Ct.

at 921. The relevant question is whether the elements

of the common-law cause of action are consistent with

“the values and purposes of the constitutional right at

issue.” Ibid.

Petitioner argues (Br. 19-30) that the Court need not

engage in that analysis. He contends (Br. 19) that, as in

Wallace, the Court can simply borrow the accrual rule

from the most analogous common-law tort without

“delv[ing] into what the elements of [his] constitutional

claim are.” In Wallace, false imprisonment supplied the

‘ A different analogy to the common-law tort of false imprison-

ment may apply to a claim seeking damages for an arrest based on

fabricated evidence. See Pet. App. 13.

most analogous common-law tort to the plaintiff’s Sec-

tion 1983 claim. See 549 U.S. at 389. The Court ex-

plained that false imprisonment “is subject to a distinc-

tive rule” that the “[ljimitations begin to run * * * when

the alleged false imprisonment ends,” ibid., even

though a false-imprisonment plaintiff has a complete

cause of action “immediately upon his false arrest,” id.

at 390 n.3. And it determined that the same rule should

apply to the constitutional tort. See id. at 391-392.

Petitioner observes (Br. 28-29) that “the statute of

limitations for the tort of malicious prosecution does not

begin to run until favorable termination.” Unlike with

false imprisonment, however, that is not by virtue of any

“distinctive” limitations rule. Pet. Br. 29. Rather, it

is because favorable termination is an element of a

malicious-prosecution claim. As a practical matter,

because the other elements of the claim concern the in-

itiation of those same proceedings, see p. 17, supra,

the favorable-termination element is always the last

element to be met. As a result, the plaintiff does not

have a complete and present cause of action until the

criminal proceedings are terminated, at which point the

statute of limitations begins to run under the standard

accrual rule. If the Court incorporates a favorable-

termination element into the constitutional tort at issue

here, the same will be true of petitioner’s Section 1983

claim. But unlike in Wallace, the Court cannot avoid

considering the elements by adopting a “distinctive”

malicious-prosecution accrual rule that does not exist at

common law.

2. Turning to the elements, the Court should adopt

a favorable-termination requirement for petitioner’s

Section 1983 claim. Indeed, all of the reasons for the

requirement at common law apply equally here. It is

consistent with the constitutional values that peti-

tioner’s claim seeks to vindicate, and it reinforces

broader Section 1983 principles.°

a. At the outset, a favorable-termination require-

ment would serve the same “ripeness” interest as in

malicious-prosecution actions. Keeton § 119, at 874. At

common law, the element ensures that a malicious-

prosecution action is not “tried at a time when it might

tend to chill testimony in the criminal action, when the

issues may still be narrowed by the criminal process,

and when the civil dispute might still be resolved by

compromise or other nonjudicial measures if the crimi-

nal trial can but proceed to an end.” J/bid.; see Dan B.

Dobbs, The Law of Torts § 590 (2d ed. 2018). And it

“avoids parallel litigation over the issues of probable

cause and guilt.” Heck, 512 U.S. at 484 (quoting 8 Stu-

art M. Speiser et al., The American Law of Torts § 28:5,

at 24 (1991)).

A Section 1983 claim for damages based on the

wrongful initiation of criminal proceedings, if permitted

to proceed in parallel with the criminal case itself, could

be similarly disruptive. The pending threat of damages

may “chill testimony in the criminal action,” Keeton

§ 119, at 874, undermining the truth-seeking function of

the criminal proceeding. At the same time, the civil suit

might be used to obtain from the prosecutor discovery

not available in the pending criminal proceeding. See

Degen v. United States, 517 U.S. 820, 825-826 (1996)

® Because favorable termination would be an element of a dam-

ages action under Section 1988, rather than a limitation on the scope

of the constitutional right, it would not affect the United States’ abil-

ity to prosecute those who willfully violate individuals’ constitutional

rights. See 18 U.S.C, 241, 242.

(contrasting the “limited discovery” to which defend-

ants are entitled in a criminal proceeding with the

broader standards available in a civil suit). Conversely,

the requirement on a defendant to timely bring such a

suit during the pendency of criminal proceedings, in

which the defendant must plead the basis for his fabri-

cation claims and expose himself to the possibility of

civil discovery, may undermine the criminal defendant's

Fifth Amendment right against self-incrimination. A

favorable-termination element would prevent these

harms."

b. A favorable-termination requirement also would

promote interests of consistency and respect fur the ju-

dicial process. As this Court recognized in Heck, as an

element of malicious prosecution, the requirement “pre-

cludes the possibility of the claimant * * * succeeding

in the tort action after having been convicted in the un-

derlying criminal prosecution, in contravention of a

strong judicial policy against the creation of two con-

flicting resolutions arising out of the same or identical

transaction.” 512 U.S. at 484 (quoting Speiser § 28:5, at

24); see Fisher v. Bristow, (1779) 99 Eng. Rep. 140

(K.B.) 140 (“[O]therwise he might recover in the action,

* To be sure, a district court could address some of these concerns

by staying proceedings in the civil suit, while the criminal proceed-

ings or a subsequent appeal or habeas proceeding continues. See

Heck, 512 U.S. at 487 n.8. But even a stayed civil damages suit may

affect the testimony in the pending criminal proceedings, and the

possibility of a stay would not relieve the criminal defendant from

the obligation to set out his theory of fabrication in a timely filed

complaint. Moreover, whether to grant a stay would remain in the

discretion of the district court, and the litigation over a stay could

itself distract the prosecution and defense from the more pressing

criminal proceeding.

and yet be afterwards convicted on the original prose-

cution.”). It also prevents a criminal defendant from

bringing a “collateral attack on [his] conviction through

the vehicle of a civil suit.” Heck, 512 U.S. at 484; see

Dobbs § 590 (“If the accused was convicted, a malicious

prosecution action should be impermissible because

courts should not be permitted to collaterally attack the

conviction.”).

In Heck, the Court relied on the interests in con-

sistent judgments and preventing collateral attacks

on criminal judgments to incorporate the favorable-

termination element into a constitutional tort seeking

“to recover damages for allegedly unconstitutional con-

viction or imprisonment.” 512 U.S. at 486; see ibid.

(“[C]ivil tort actions are not appropriate vehicles for

challenging the validity of outstanding criminal judg-

ments.”). The adoption of the element here would fur-

ther those same interests and prevent a criminal de-

fendant from using a Section 1983 claim to “collat-

eral[ly] attack” his indictment or eventual conviction

“through the vehicle of a civil suit.” /d. at 484 (citation

omitted); see Kaley v. United States, 571 U.S. 320, 328

(2014) (“The grand jury gets to say—without any re-

view, oversight, or second-guessing—whether probable

cause exists to think that a person committed a crime.”).

c. In addition, a favorable-termination requirement

would serve an important evidentiary purpose. At com-

mon law, the favorable-termination element of mali-

cious prosecution exists in part “for what it shows about

probable cause or guilt-in-fact” of the accused. Keeton

§ 119, at 874. A criminal prosecution that terminates in

a final conviction undermines the plaintiff's claim that

the prosecution was unfounded to begin with, and was

initiated without probable cause. See Hilliard § 29, at

457; Melville M. Bigelow, Elements of the Law of Torts

72 (1878) (“[Jjudgment against the party prosecuted

would, it is deemed, show that the prosecutor had rea-

sonable ground for his conduct.”). Conversely, where a

prosecution ends favorably to the accused, that resolu-

tion may serve as “evidence of the want of probable cause

for the prosecution.” Whitfield v. Westbrook, 40 Miss.

311, 317 (1866); see Lunsford v. Dietrich, 9 So. 308, 310

(Ala. 1891); Restatement §§ 663-665, at 429-433.

In the due-process context, this Court has explained

that the knowing use of fabricated evidence to obtain a

conviction violates due process only where there is a

“reasonable likelihood” that the evidence “could have

affected the judgment of the jury.” United States v.

Agurs, 427 U.S. 97, 1083 (1976); ef. Strickler v. Greene,

527 U.S. 263, 281 (1999) (“[T]here is never a real ‘Brady

violation’ unless the nondisclosure was so serious that

there is a reasonable probability that the suppressed

evidence would have produced a different verdict.”).

Although petitioner’s due-process claim is based on the

deprivation of his liberty that resulted not from a con-

viection, but from the initiation of criminal proceedings,

courts of appeals to recognize such a claim have

properly required that the fabricated evidence was ma-

terial to the charging decision. See Black, 835 F.3d at

371 (requiring “a reasonable likelihood that, absent that

fabricated evidence, the defendant would not have been

criminally charged”); Morse, 804 F.3d at 547 (finding

that a prosecutor may be liable for harm caused by fab-

ricated evidence that was “material to the grand jury’s

decision to indict”).

Just as the termination of criminal proceedings in a

manner favorable to the accused can provide support

for the plaintiff’s allegation that the prosecution was in-

itiated without probable cause, it also can indicate that

the allegedly false evidence used to initiate charges was

material to the charging decision. If a defendant is able

to obtain an acquittal at trial when given the oppor-

tunity to rebut the fabricated evidence, that will tend tu

show that the evidence—which the prosecutor pre-

sented without rebuttal at the charging stage—was ma-

terial to the grand jury’s decision to indict. Conversely,

if the fabricated grand jury evidence is not presented at

trial, is excluded from evidence, or is rebutted, and a

conviction is still obtained, that conviction will tend to

show the fabricated evidence was likely not material to

the charging decision. And where a defendant obtains

a favorable termination on appeal or in habeas proceed-

ings by challenging the introduction of fabricated evi-

dence leading to a conviction as a violation of due pro-

cess, such a reversal of the conviction will necessarily

include a finding that the fabricated evidence was ma-

terial to the petit jury, see Agurs, 427 U.S. at 103—and

therefore will tend to suggest that it was material to the

grand jury as well. As with its value in proving the pres-

ence or lack of probable cause, the termination of pro-

ceedings will not necessarily be dispositive proof of ma-

teriality. But its strong evidentiary value counsels in

favor of the element’s inclusion in the constitutional tort.

d. A favorable-termination requirement likewise

would provide potential litigants and the courts with

clear notice of the point at which “the plaintiff has ‘a

complete and present cause of action’” and when the

limitations period begins to run. Wallace, 549 U.S. at

388 (citation omitted). A clear demarcation of that pe-

riod will prevent costly disputes about the moment at

which a criminal defendant became aware or should

have become aware of the use of fabricated evidence,

which would be inevitable under the court of appeals’

approach but are “foreign to the central purposes of

[Section] 1983.” Wilson, 471 U.S. at 272.

Notably, in this case, neither lower court determined

the precise moment when the statute of limitations be-

gan to run on petitioner’s claim, reasoning only that he

learned (or should have learned) of respondent’s use of

fabricated evidence at some point more than three

years before filing suit. See Pet. App. 13a-14a (conclud-

ing the petitioner must have learned of the evidence “at

the earliest, when he was indicted and arrested and, at

the latest, by the end of his first trial”); id. at 52a-53a

(concluding only that it was “prior to December 18,

2012”). The lower courts were able to avoid pinpointing

that date because petitioner did not bring suit until

nearly three years after the end of his second criminal

trial. But on the court of appeals’ approach, there will

be future cases in which the particular timing matters.

Avoiding “useless litigation on [such] collateral mat-

ters” led the Court to adopt a clear rule for determining

the appropriate limitations period to borrow from state

law for Section 1983 claims in Wilson. 471 U.S. at 275.

The same “federal interests” in “certainty|] and the

minimization of unnecessary litigation” counsel in favor

of adopting a favorable-termination element here. /bid.

e. Finally, a favorable-termination element would

be consistent with principles of federal-state comity.

Petitioner indirectly invokes those principles when he

contends (Br. 32-35) that this Court’s decision in

Preiser v. Rodriguez, 411 U.S. 475 (1973), would inde-

pendently prevent a defendant from seeking damages

for the initiation of criminal proceedings prior to the fa-

vorable termination of those proceedings. In Preiser,

the Court held that the federal habeas statute provides

“the exclusive remedy” in federal court for a prisoner

who “attack[s] the validity of his confinement.” /d. at

489. Petitioner argues that even a defendant released

on personal recognizance is in “custody” for purposes of

the federal habeas statute, such that habeas offers “the

exclusive remedy for a state prisoner who challenges the

fact or duration” of that custody. Pet. Br. 34 (citation

omitted). According to petitioner, Heck “extended

Preiser to a suit seeking monetary damages under Sec-

tion 1983,” like petitioner’s suit, “where awarding dam-

ages would ‘call into question the lawfulness’” of that

custody. /bid. (citation omitted).

The court of appeals rejected petitioner’s argument,

reading this Court’s decision in Heck to apply “only

when there exists a conviction or sentence that has not

been invalidated” but wor. be put into question by the

damages award. Pet. App. 16a (emphasis altered).

Since petitioner was never convicted, the court of ap-

peals reasoned that “the Heck rule” never applied to his

Section 1983 claim. /bid. (citation omitted). But re-

gardless whether Preiser, as interpreted by Heck,

would have barred petitioner’s Section 1983 claim be-

fore the favorable termination of his criminal proceed-

ings, the principles supporting that decision—namely,

avoiding “unnecessary friction between the federal

and state court systems” and “‘a proper respect for

state functions,’” Preiser, 411 U.S. at 490-491 (citation

omitted)—also support requiring the favorable termi-

nation of state criminal proceedings before asking a fed-

eral court to consider a Section 1983 claim that would

call those proceedings into question.

*_ * *+ * *

For all these reasons, a Section 1983 plaintiff seeking

damages for the wrongful initiation of criminal proceed-

ings based on fabricated evidence should be required to

prove that the criminal proceedings were terminated in

his favor as an element of his Section 1983 claim. Until

that event occurs, the Section 1983 plaintiff does not

have a complete and present cause of action, and his

Section 1983 claim does not accrue. See Heck, 512 U.S.

at 489-490. Because petitioner filed his Section 1983

claim within three years of the favorable termination of

the criminal proceedings against him, his claim is

timely. The court of appeals’ judgment to the contrary

therefore should be reversed.’

Ill. ON REMAND, PETITIONER’S CLAIM LIKELY

SHOULD BE DISMISSED ON THE BASIS OF ABSO-

LUTE PROSECUTORIAL IMMUNITY

In the district court, respondent argued that, even if

petitioner’s fabricated-evidence claim was timely, it was

barred by absolute prosecutorial immunity. Neither

’ Because incorporating a favorable-termination requirement into

petitioner’s Section 1983 claim resolves this case, the Court need not

reach petitioner’s alternative theory that, even if his claim arose be-

fore the end of criminal proceedings, the violation “continued” until

those proceedings terminated. See Pet. Br. 44-50. Unlike the ele-

ments question, that theory raises difficult questions under this

Court’s precedents. Although the analysis should similarly follow

“common-law tort principles,” Wallace, 549 U.S. at 388; see id. at 388-

390, the malicious-prosecution analogy provides no help. Such a claim

does not “continue” in the manner petitioner suggests, because it does

not arise at all until the criminal proceedings are terminated. And if

the Court were to reject the malicious-prosecution analogy, it is not

clear what other common-law tort, if any, could guide the analysis.

See Pet. Br. 25-27 (explaining why neither false imprisonment nor

abuse of process is analogous to petitioner’s claim).

the district court nor the court of appeals passed on that

argument. Because this Court is a “court of review, not

of first view,” Cutter v. Wilkinson, 544 U.S. 709, 718 n.7

(2005), the government agrees that the “question of ab-

solute immunity is properly left for remand.” Pet. Br.

25 n.7. On remand, however, the district court should

likely dismiss petitioner’s fabrication-of-evidence claim

against respondent on absolute-im nunity grounds.

Although Section 1983 does not expressly provide for

a “defense of official immunity,” certain common-law

immunities “were so well established in 1871, when

[Section] 1983 was enacted, that ‘[this Court] pre-

sume[s] that Congress would have specifically so pro-

vided had it wished to abolish’ them.” Buckley v. Fitz-

simmons, 509 U.S. 259, 268 (1993) (citation omitted).”

As the Court has observed, “at common law prosecutors

were immune from suits for malicious prosecution and

for defamation,” and “this immunity extended to the

knowing use of false testimony before the grand jury

and at trial.” Burns v. Reed, 500 U.S. 478, 485 (1991)

(citation omitted); see Buckley, 509 U.S. at 269-270.

To be sure, “[w]jhen a prosecutor performs the inves-

tigative functions normally performed by a detective or

police officer, it is ‘neither appropriate nor justifiable

that, for the same act, immunity should protect the one

and not the other.’” Buckley, 509 U.S. at 273 (citation

* The same immunity analysis does not apply to prosecutions by

the United States under 18 U.S.C. 241 and 242. See Jmbler v. Pacht-

man, 424 U.S. 409, 429 (1976) (“This Court has never suggested that

the policy considerations which compel civil immunity for certain

governmental officials also place them beyond the reach of the crim-

inal law.”).

omitted). In Buckley, this Court found immunity inap-

propriate for a prosecutor who allegedly fabricated evi-

dence at an “entirely investigative” stage, well before

any criminal proceedings had begun—though the Court

declined to address whether such conduct would consti-

tute a “constitutional violation[] for which [Section]

1983 provides a remedy.” /d. at 261, 274-275. Following

Buckley, the Second Circuit has held that, although a

prosecutor is absolutely immune from liability based on

his presentation of false evidence to a grand jury, the

same prosecutor may be held liable for fabricating evi-

dence in an investigative capacity if “it was at least rea-

sonably foreseeable that in his advocacy role he would

later use that evidence before the grand jury.” Zahrey,

221 F.3d at 353-354. In his complaint, petitioner relied

on that authority in alleging a “fabrication of evidence”

claim against respondent distinct from his “malicious

prosecution” claim. Compl. Counts I, II, at 170, 171.

The government has serious doubts about following

the Second Circuit’s approach in Zahrey in this case. As

an initial matter, it is not clear that Section 1983 should

provide a remedy for the fabrication of evidence itself,

rather than its subsequent use to harm the plaintiff.

See Buckley, 509 U.S. at 281 (Scalia, J., concurring) (“I

am aware of[] no authority for the proposition that the

mere preparation of false evidence, as opposed to its use

in a fashion that deprives someone of a fair trial or oth-

erwise harms him, violates the Constitution.”). It is also

far from clear that the alleged fabrication of evidence in

this case—all of which, petitioner alleges, was done in

an effort “to initiate and continue [a] scapegoat prose-

cution” against him, Compl. 7 345, and much of which

allegedly occurred after those proceedings began, see

Pet. Br. 8-12—was done by respondent acting in an in-

vestigative capacity.

But even putting those concerns aside, petitioner

emphasizes repeatedly in this Court that he seeks to

hold respondent liable not for the fabrication of evi-

dence itself, but for the wrongful “initiation and mainte-

nance of criminal proceedings” on the basis of that evi-

dence. E.g., Pet. Br. 3, 4, 26, 28, 30, 46. He analogizes

respondent’s conduct to malicious prosecution. And he

complains (Br. 49) of respondent’s “wrongful use of fab-

ricated evidence *** throughout the criminal pro-

ceedings.” In the government’s view, “[i]nsofar as [the

claim is] based on respondents’ supposed knowing use

of fabricated evidence before the grand jury and at

trial—acts which might state a claim for denial of due

process—traditional defamation immunity provides

complete protection from suit under [Section] 1983.”

Buckley, 509 U.S. at 281 (Sealia, J., concurring) (cita-

tions omitted). In short, petitioner is correct that his

claim for fabrication of evidence is analogous to one for

malicious prosecution, but the analogy only drives home

that petitioner’s fabrication claim is likely barred by

prosecutorial immunity.

CONCLUSION

The judgment of the court of appeals should be

reversed.

Respectfully submitted.