# Amicus Curiae Brief — McDonough v. Smith (No. 18-485) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0863%3A12 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2019 ## Text 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) IV 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 Vi 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) 2 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 3 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 4 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 5 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, 6 “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. 7 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- S 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. 9 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. 10 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 11 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 12 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). 13 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 14 ‘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”). 15 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 16 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). 17 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 18 “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- 19 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). 20 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. 21 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 22 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. 23 (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. 24 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 25 457; 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 27 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, 28 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. 29 *_ * *+ * * 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). 30 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.”). 31 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 32 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. 33 CONCLUSION The judgment of the court of appeals should be reversed. Respectfully submitted. NOEL J. FRANCISCO Solicitor 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 8 MARCH 2019 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0863%3A12. Public record. Not legal advice.