# 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%3A15 ## 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, Respondent. On Writ of Certiorari to the United States Court of Appeals for the Second Circuit BRIEF OF CONSTITUTIONAL ACCOUNTABILITY CENTER AS AMICUS CURIAE IN SUPPORT OF PETITIONER ELIZABETH B. WYDRA BRIANNE J. GOROD* BRIAN R. FRAZELLE CONSTITUTIONAL ACCOUNTABILITY CENTER 1200 18th Street NW, Suite 501 Washington, D.C. 20036 (202) 296-6889 brianne@theusconstitution.org Counsel for Amicus Curiae March 4, 2019 * Counsel of Record Fn eee Ee a ) I. Il. TABLE OF CONTENTS Page Section 1983 Is Meant To Vindicate the Unique Rights Guaranteed by the Federal Constitution, Not the Interests Protected by the Common Eg LES ae Common-Law Rules Are Borrowed To Fill in the Gaps of Section 1983 Only When Those Rules Help Fulfill the gg EE a a ee To Advance the Goals of Section 1983, a Constitutional Claim that Fabricated Evidence Was Used To Initiate and Maintain Criminal Proceedings Should Accrue Only When Those Proceedings LEADON IIIT titisensinsinstubtinedtncatidesatinbscincrntinscbicasers (i) 14 28 ii TABLE OF AUTHORITIES Cases Ahern v. Collins, SR BA Cb cccieecssencicseinsstindeteres Anderson v. Creighton, Pd A . , Rr Baker v. McCollan, PPoase Bf eRe wore Bay Area Laundry & Dry Cleaning Pension Trust Fund v. Ferbar Corp, — £th fs» Ea Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, QE UTE, GD Ge 0 tnnsctesccsessccesatccnnssccees Briscoe v. LaHue, FG ES neon Burnett v. Grattan, BO UF: Ge CO cece snectsacitscasesntessncnase Cardival v. Smith, 109 Mass. 158 (1872) ................ccceeeeeees Carey v. Piphus, SBE UE. BGT COT cceccnccocccsscsvesssacsoessans City of Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981)............0sseseeseereeees 6, Daniels v. Williams, ry bie Bf ERSTE Se Ser Page(s) 10 16 TABLE OF AUTHORITIES - cont'd Page(s) Devbrow v. Kalu, 705 F.3d 765 (7th Cir. 2013)................. 17 District of Columbia v. Carter, | 6 Finley v. St. Louis Refrigerator Co.., 99 Mo. 559, 13 S.W. 87 (1890).............. 25 Hardin v. Straub, 490 U.S. 536 (1989).......................... 25, 26, 27 Hartman v. Moore, I ons snc csicetcnsenensces 4,9, 13 Heck v. Humphrey, RR 8, 18, 19, 23 Herman v. Brookerhoff, 8 Watts 340 (Pa. 16398).......................... 23, 25 Hogg v. Pinckney, RE 22 Holloway v. Morris, 182 Ark. 1096 (1931)...............00000.0008.. 16 Kalina v. Fletcher, i cas cetmncsnneseancee 8 Malley v. Briggs, a 10, 13 Manuel v. City of Joliet, Se passim Manuel v. City of Joliet, 903 F.3d 667 (7th Cir. 2018)................. 21, 22 iv TABLE OF AUTHORITIES - cont'd Page(s) McNeese v. Bd. of Educ., Se I iiss cctsinditennniscunienatls 7 Mitchum v. Foster, 407 U.S. 225 (1972).................00..... 3, 4, 5, 6, 7 Monell v. Dep't of Soc. Servs., oS 6 Monroe v. Pape, 1: * 5 eee 6,9 Occidental Life Ins. Co. v. EEOC, ee TI icirciiatinidiitrintieptiniatencnes 12 Owen v. City of Independence, ee iii icicniccnncsecienicain 12, 27 Owens v. Balt. City State’s Attorneys Office, 767 F.3d 379 (4th Cir. 2014)................. 17 Owens v. Okure, 488 U.S. 235 (1989)........................ 4, 6, 7,9, 13 Patsy v. Bd. of Regents, 4 | 2 | Se 5, 6 Rawlings v. Ray, te 16 Rehberg v. Paulk, 566 U.S. 356 (2012).................. siscia tial passim Robertson v. Wegmann, GE St He Gein rtccictcnecscennscnnssescees 26 Smith v. Wade, SD Ck Bip Ge crcesennestesicsnscerensnens 5, 7, 12 v TABLE OF AUTHORITIES - cont'd Page(s) Spak v. Phillips, 857 F.3d 458 (2d Cir. 2017) .................. 15 Tenney v. Brandhove, be ko | 9 Tower v. Glover, ey I I i cisinsicinctinienebitntinnntniesint 13 Wallace v. Kato, | |, ea passim Wilson v. Garcia, 4g | passim Wood v. Strickland, ee 8 Wyatt v. Cole, SE 12 Zahrey v. Coffey, 221 F.3d 342 (2d Cir. 2000) .................. 24 Ce a 1,8 Civil Rights Act of 1871, ch. 22, § 1, 17 of ee eee 3, 5 Cong. Globe, 42nd Cong., 1st Sess. REE aS SY Sees 3, 5, 6, 7 vi TABLE OF AUTHORITIES - cont'd Page(s) Books, Artic] 1 Other Authoriti 2 C.G. Addison, A Treatise on the Law of Torts (H.G. Wood ed., 1881).............. 23, 24 Thomas M. Cooley, A Treatise on the I i icncciiccnssciniceenesse 24 1 Francis Hilliard, The Law of Torts or Private Wrongs (3d ed. 1866)........ 20, 22, 24 Martin L. Newell, A Treatise on the Law of Malicious Prosecution, False Impris- onment, and the Abuse of Legal Process NERA ESS ASOT WS cE SEC 23 2 H.G. Wood, Limitation of Actions (rev. RARER ES 21 l INTEREST OF AMICUS CURIAE'! Amicus Constitutional Accountability Center (CAC) is a think tank, public interest law firm, and action center dedicated to fulfilling the progressive promise of our Constitution’s text and history. CAC works in our courts, through our government, and with legal scholars to improve understanding of the Constitution and to preserve the rights and freedoms it guarantees. CAC accordingly has a strong interest in this case and in the proper interpretation of a law, like 42 U.S.C. § 1983, that was passed to protect the uniquely federal rights guaranteed by the Constitu- tion. INTRODUCTION AND SUMMARY OF ARGUMENT Twice this Term, parties have asked this Court to resolve 42 U.S.C. § 1983 claims alleging the violation of a federal constitutional right by imposing the rules or elements of a specific common-law tort. In one case, this approach would favor the defendants. See Pet’rs Br. 42-48, Nieves v. Bartlett, No. 17-1174 (Aug. 20, 2018). Here, it would favor the plaintiff. See Pet’r Br. 19-30. In both cases, however, mechanically importing the components of an “analogous tort” into a Section 1983 claim would conflict with Section 1983's text, history, and purpose. This Court should ' The parties have consented to the filing of this brief and their letters of consent have been filed with the Clerk. Under Rule 37.6 of the Rules of this Court, amicus states that no coun- sel for a party authored this brief in whole or in part, and no counsel or party made a monetary contribution intended to fund the preparation or submission of this brief. No person other than amicus or its counsel made a monetary contribution to its preparation or submission. 2 adopt the accrual rule sought by Petitioner, not be- cause “the proper approach is to adopt the limitations rule from the most analogous common law tort,” Pet’r Br. 19, but rather because the use of this accrual rule best comports with the nature of Petitioner’s consti- tutional claim and Section 1983's purpose. Respondent Youel Smith, a state prosecutor, al- legedly fabricated evidence of criminal activity against Petitioner Edward McDonough and used this evidence in a pretrial investigation, in grand jury proceedings, and in two criminal trials. Petr Br. 2. Due to this malfeasance, McDonough was subject to prolonged criminal proceedings, an ordeal that ended only when his second trial resulted in an acquittal. Id. McDonough later sued Smith under Section 1983 for fabrication of evidence, which the court below re- gards as violating the Fifth and Fourteenth Amend- ment right to due process of law. Pet. App. 10a. The gravamen of McDonough’s claim is thus “the wrongful initiation and maintenance of criminal pro- ceedings on the basis of fabricated evidence.” Pet’r Br. 3. That wrong continued throughout both of his trials and ended only when his acquittal eliminated all prospect of further prosecution. Until that mo- ment, McDonough suffered a continuous deprivation of liberty by virtue of being forced to stand trial. /d. at 40-41. Despite that, the court below concluded that the violation and its harm were “complete” as soon as Smith’s fabricated evidence was used against McDonough. Pet. App. 15a. At that point, according to the court, the statute of limitations on McDonough’s constitutional claim began to run— meaning that the lawsuit he ultimately filed after his acquittal was untimely. Jd. at 13a. The court reached this result by applying a “standard rule” of 3 accrual derived from the common law, under which “accrual occurs when a plaintiff has a complete and present cause of action,” or, put another way, “once the plaintiff knows or has reason to know of the inju- ry which is the basis of his action.” Jd. at 9a-10a (ci- tation and quotation marks omitted). The court below applied this “standard rule” re- flexively—without considering the “refinement|s]” to this rule, Wallace v. Kato, 549 U.S. 384, 388 (2007), that the common law has developed for torts address- ing concerns similar to Petitioner's constitutional claim. And as a result, the court failed to apply the rule that would best serve “the values and purposes of the constitutional right at issue.” Manuel v. City of Joliet, 137 S. Ct. 911, 921 (2017). After all, Section 1983 created a new remedy to vindicate the uniquely federal rights guaranteed by the federal Constitution against infringement by state officials. Enacted during Reconstruction as part of “extraordinary legislation,” Cong. Globe, 42nd Cong., Ist Sess. 322 (1871) (hereinafter “Globe”) (Rep. Stoughton), that “alter[ed] the relationship between the States and the Nation with respect to the protec- tion of federally created rights,” Mitchum v. Foster, 407 U.S. 225, 242 (1972), Section 1983 was passed to provide “further safeguards” to “life, liberty, and property,” Globe 374 (Rep. Lowe). To that end, it en- abled individuals to seek damages in the federal courts for deprivations of rights “secured by the Con- stitution of the United States.” Civil Rights Act of 1871, ch. 22, § 1, 17 Stat. 13. Critically, Section 1983 did not create “a federal- ized amalgamation of pre-existing common-law claims, an all-in-one federal claim encompassing the torts of assault, trespass, false arrest, defamation, [and] malicious prosecution.” Rehberg v. Paulk, 566 4 U.S. 356, 366 (2012). Instead, it furnished “a unique- ly federal remedy” for incursions on “rights secured by the Constitution.” Wilson v. Garcia, 471 U.S. 261, 27 1-72 (1985) (quoting Mitchum, 407 U.S. at 239). Common-law principles, therefore, “are meant to guide rather than to control the definition of § 1983 claims, serving ‘more as a source of inspired examples than of prefabricated components.” Manuel, 137 S. Ct. at 921 (quoting Hartman v. Moore, 547 U.S. 250, 258 (2006)). Thus, the procedural rules governing a particular tort are not to be reflexively imposed on a Section 1983 claim through “narrow analogies.” Ow- ens v. Okure, 488 U.S. 235, 248 (1989). Instead, when “applying, selecting among, or adjusting common-law approaches, courts must closely attend to the values and purposes of the constitutional right at issue.” Manuel, 137 S. Ct. at 921. Sometimes, of course, “the interests protected by a particular branch of the common law of torts may parallel closely the interests protected by a particular constitutional right. In such cases, it may be appro- priate to apply the tort rules . . . directly to the § 1983 action.” Carey v. Piphus, 435 U.S. 247, 258 (1978). This is such a case. Where, as here, fabricated evi- dence was the basis for criminal proceedings that de- prived a victim of liberty, the rule that best fits the nature of this constitutional claim is that the statute of limitations begins running only when those pro- ceedings have terminated. This rule also best serves Section 1983's goal of redressing and deterring con- stitutional violations in a uniform manner. 5 ARGUMENT Il. Section 1983 Is Meant To Vindicate the Unique Rights Guaranteed by the Federal Constitution, Not the Interests Protected by the Common Law of Torts. Section 1983, which derives from the Civil Rights Act of 1871, was enacted to create “a private right of action to vindicate violations of rights, privileges, or immunities secured by the Constitution.” Rehberg, 566 U.S. at 361 (quotation marks omitted). This Act, “along with the Fourteenth Amendment it was enact- ed to enforce, were crucial ingredients in the basic al- teration of our federal system accomplished during the Reconstruction Era,” Patsy v. Bd. of Regents, 457 U.S. 496, 503 (1982), which established “the role of the Federal Government as a guarantor of basic fed- eral rights against state power,” Mitchum, 407 U.S. at 239. The text of what is now Section 1983 left no doubt about the new primacy of “federally secured rights.” Smith v. Wade, 461 U.S. 30, 34 (1983). It gave any person who was deprived of “any rights, privileges, or immunities secured by the Constitution of the United States” the ability to hold the perpetra- tor liable, “any ... law, statute, ordinance, regula- tion, custom, or usage of the State to the contrary notwithstanding.” 17 Stat. 13; see Globe 692 (Sen. Edmunds) (the “solemn duty of Congress” is “to se- cure to the individual, in spite of the State, or with its aid, as the case might be, precisely the rights that the Constitution gave him”). While the “specific historical catalyst” for this leg- islation “was the campaign of violence and deception in the South, fomented by the Ku Klux Klan,” Wilson, 471 U.S. at 276; see Globe 158 (Sen. Sherman), Sec- 6 tion 1983 “was not a remedy against the Klan or its members but against those who representing a State in some capacity were unable or unwilling to enforce a state law.” District of Columbia v. Carter, 409 U.S. 418, 426 (1973) (quoting Monroe v. Pape, 365 U.S. 167, 175-76 (1961) (brackets omitted)). The funda- mental problem that Congress sought to address, therefore, was not the prevalence of violent acts—the type of individual harms for which state tort law was designed to provide compensation. Rather, the prob- lem was that Southern states, by tolerating this vio- lence, were “permit[ing] the rights of citizens to be systematically trampled upon.” Globe 375 (Rep. Lowe). To address this problem, Section 1983 “inter- pose|d] the federal courts between the States and the people, as guardians of the people’s federal rights.” Patsy, 457 U.S. at 503 (quoting Mitchum, 407 U.S. at 242) (emphasis added); see Carter, 409 U.S. at 428 (Congress enacted Section 1983 to provide “indirect federal control over the unconstitutional actions of state officials”). Thus, while the violence inflicted on freedmen and their sympathizers “often resembled the torts of assault, battery, false imprisonment, and misrepresentation, § 1983 was not directed at the perpetrators of these deeds as much as at the state officials who tolerated and condoned them.” Owens, 488 U.S. at 249 n.11. Accordingly, “Section 1983 imposes liability for violations of rights protected by the Constitution, not for violations of duties of care arising out of tort law.” Baker v. McCollan, 443 U.S. 137, 146 (1979); see Mo- nell v. Dep't of Soc. Servs., 436 U.S. 658, 685 n.45 (1978). The statute “was designed to expose state and local officials to a new form of liability,” City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 259 7 (1981) (emphasis added), by providing a remedy for “federa'ly secured rights,” Smith, 461 U.S. at 34, and would be “supplementary to any remedy any State might have,” McNeese v. Bd. of Educ., 373 U.S. 668, 672 (1963). Regardless of what recourse state tort law might provide, “[p]roponents of the measure re- peatedly argued that... an independent federal rem- edy was necessary.” Briscoe v. LaHue, 460 U.S. 325, 338 (1983); see Globe 370 (Rep. Monroe) (“life, liberty, and property require new guarantees for their securi- ty” (emphasis added)). In sum, Section 1983 provides “a uniquely federal remedy” for incursions upon “rights secured by the Constitution.” Wilson, 471 U.S. at 271-72 (quoting Mitchum, 407 U.S. at 239). With full awareness that it was “altering the relationship between the States and the Nation with respect to the protection of fed- erally created rights,” Congress enacted Section 1983 to “protect those rights.” Mitchum, 407 U.S. at 242 (emphasis added); see Br. of Constitutional Accounta- bility Center at 5-10, Nieves v. Bartlett, No. 17-1174 (Oct. 9, 2018) (providing more detailed account of the history and purpose of Section 1983). Il. Common-Law Rules Are Borrowed To Fill in the Gaps of Section 1983 Only When Those Rules Help Fulfill the Statute’s Purpose A. While Section 1983 authorizes an “action at law,” it lacks procedural details concerning the opera- tion of this remedy. See Wilson, 471 U.S. at 266; Ow- ens, 488 U.S. at 239. Thus, when a plaintiff alleges the violation of a constitutional right under Section 1983, courts “must determine the elements of, and rules associated with, an action seeking damages for its violation.” Manuel, 137 S. Ct. at 920. This task, 8 however, is an act “of statutory construction.” Wood v. Strickland, 420 U.S. 308, 316 (1975). As this Court has recognized, “Congress intended the statute to be construed in the light of common- law principles that were well settled at the time of its enactment.” Kalina v. Fletcher, 522 U.S. 118, 123 (1997). That conclusion is premised on the “im- portant assumption ... that members of the 42d Congress were familiar with common-law principles ... and that they likely intended these common-law principles to obtain, absent specific provisions to the contrary.” City of Newport, 453 U.S. at 258. Because Congress “borrowed general tort principles” in craft- ing Section 1983, Heck v. Humphrey, 512 U.S. 477, 484 n.4 (1994), this Court has often filled in the gaps of the statute with “federal rules conforming in gen- eral to common-law tort principles,’ Wallace, 549 U.S. at 388. Crucially, however, “the Court has not suggested that § 1983 is simply a federalized amalgamation of pre-existing common-law claims, an all-in-one federal claim encompassing the torts of assault, trespass, false arrest, defamation, malicious prosecution, and more.” Rehberg, 566 U.S. at 366. Instead, it has rec- ognized that “[t]he new federal claim created by § 1983 differs in important ways from those pre- existing torts,” most significantly in that “it reaches 2 In marked contrast to these procedural omissions, Section 1983 expressly specifies the federal interests it protects—which include, without limitation, “any rights ... secured by the Con- stitution.” 42 U.S.C. § 1983. On this point, the stetute leaves no textual gaps to be filled. Therefore, courts may not shrink the range of constitutional rights protected by Section 1983 in an effort to mimic the scope of the interests protected by state tort law. See Br. of Constitutional Accountability Center, Nieves v. Bartlett, No. 17-1174 (Oct. 9, 2018). 9 constitutional and statutory violations that do not correspond to any previously known tort.” Jd. And because the statute has “no precise counterpart in state law,” “any analogies to those causes of action are bound to be imperfect.” Jd. (quoting Wilson, 471 U.S. at 272). Accordingly, while this Court “look[s] first to the common law of torts” when “defining the contours and prerequisites of a § 1983 claim,” tort principles “are meant to guide rather than to control the defini- tion of § 1983 claims, serving ‘more as a source of in- spired examples than of prefabricated components.” Manuel, 137 S. Ct. at 920-21 (quoting Hartman, 547 U.S. at 258). The rules governing particular causes of action, therefore, are not mechanically imposed on Section 1983 claims through “narrow analogies.” Owens, 488 U.S. at 248. Instead, when “applying, se- lecting among, or adjusting common-law approaches, courts must closely attend to the values and purposes of the constitutional right at issue.” Manuel, 137 S. Ct. at 921. Reflecting those principles, this Court’s approach has traditionally been to fashion “federal rules con- forming in general to common-law tort principles,” Wallace, 549 U.S. at 388 (emphasis added), by calling upon basic, fundamental, and broadly applicable principles of tort law. See, e.g., Monroe, 365 U.S. at 187 (Section 1983 “should be read against the back- ground of tort liability that makes a man responsible for the natural consequences of his actions”). Reli- ance on such foundational principles makes sense be- cause they are the ones that “members of the 42d Congress were familiar with” and “likely intended” to apply under Section 1983. City of Newport, 453 U.S. at 258; see, e.g., Tenney v. Brandhove, 341 U.S. 367, 372 (1951) (legislator immunity “was taken as a mat- 10 ter of course by those who severed the Colonies from the Crown and founded our Nation”); Briscoe, 460 U.S. at 334 (“the common law’s protection for wit- nesses is a tradition so well grounded in history and reason that we cannot believe that Congress im- pinged on it by covert inclusion in the general lan- guage before us” (citation and quotation marks omit- ted)); Carey, 435 U.S. at 254-55 (“[t}he cardinal prin- ciple of damages in Anglo-American law .. . hardly could have been foreign to the many lawyers in Con- gress in 1871” (citation and qr-tation marks omit- ted)). Importantly, however, even when importing such foundational principles into Section 1983, this Court has not “mechanically duplicated” their “precise scope.” Rehberg, 566 U.S. at 364; see, e.g., Malley v. Briggs, 475 U.S. 335, 340 (1986) (“while we look to the common law for guidance, we do not assume that Congress intended to incorporate every common-law immunity into § 1983 in unaltered form”); Anderson v. Creighton, 483 U.S. 635, 644-45 (1987) (“determi- nations as to the scope of official immunity are made in the light of the common-law tradition,” but “we have never suggested that the precise contours of of- ficial immunity can and should be slavishly derived from the often arcane rules of the common law” (cita- tion and quotation marks omitted)). That is because “[rjights, constitutional and oth- erwise, do not exist in a vacuum. Their purpose is to protect persons from injuries to particular interests, and their contours are shaped by the interests they protect.” Carey, 435 U.S. at 254. And critically, “the United States Constitution [and] traditional tort law ... do not address the same concerns,” Daniels v. Wil- liams, 474 U.S. 327, 333 (1986), even when they pro- hibit similar conduct. 1] B. To be sure, sometimes “the interests protected by a particular branch of the common law of torts may parallel closely the interests protected by a par- ticular constitutional right. In such cases, it may be appropriate to apply the tort rules .. . directly to the § 1983 action.” Carey, 435 U.S. at 258. Indeed, this is such a case. See infra, Part !ll. “In other cases,” however, “the interests protected by a particular con- stitutional right may not also be protected by an analogous branch of the common law torts.” Carey, 435 U.S. at 258; see Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 394 (1971) (“The interests protected by state laws regulat- ing trespass and the invasion of privacy, and those protected by the Fourth Amendment's guarantee against unreasonable searches and seizures, may be inconsistent or even hostile.”); Manuel, 137 S. Ct. at 925 (Alito, J., dissenting) (citing “a severe mismatch” between the Fourth Amendment and the tort of mali- cious prosecution); see also Br. of Constitutional Ac- countability Center at 19-30, Nieves v. Bartlett, No. 17-1174 (Oct. 9, 2018) (explaining that the torts of false imprisonment and malicious prosecution protect different interests than the First Amendment’s pro- hibition on retaliatory arrest). Where constitutional requirements and the inter- ests they protect do not neatly align with any particu- lar common-law tort, “[t]he purpose of § 1983 would be defeated if injuries caused by the deprivation of constitutional rights went uncompensated simply be- cause the common law does not recognize an analo- gous cause of action.” Carey, 435 U.S. at 258. Ina Section 1983 suit, after all, the question is not whether the defendant has breached a duty of care imposed by tort law, but rather whether he or she “has conformed to the requirements of the Federal 12 Constitution.” Owen v. City of Independence, 445 U.S. 622, 649 (1980). “In order to further the purpose of § 1983,” there- fore, “the rules governing compensation for injuries caused by the deprivation of constitutional rights should be tailored to the interests protected by the particular right in question—just as the common-law rules ... themselves were defined by the interests protected in the various branches of tort law.” Carey, 435 U.S. at 258-59; see Manuel, 137 S. Ct. at 921. Because state common-law rules are not fashioned “with national interests in mind,” the federal courts must ensure that any reliance on common law “will not frustrate or interfere with the implementation of national policies.” Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 367 (1977). C. Consistent with this circumscribed role for common-law rules, even when this Court determines that a particular rule may be appropriate to import into Section 1983, the Court does not do so without first considering “if § 1983’s history or purpose coun- sel against applying it in § 1983 actions.” Wyatt v. Cole, 504 U.S. 158, 164 (1992). With respect to damages, for instance, the Court has explained that, in the absence of “specific guid- ance” from Section 1983's text and history, it “look{s] first to the common law of torts,” but only “with such modification or adaptation as might be necessary to carry out the purpose and policy of the statute.” Smith, 461 U.S. at 34. Similarly, with respect to immunities, even when this Court determines that “an official was « corded immunity from tort actions at common law when the Civil Rights Act was enacted in 1871, the Court next considers whether § 1983's history or purposes none- 13 theless counsel against recognizing the same immun- ity in § 1983 actions.” Malley, 475 U.S. at 340 (quot- ing Tower v. Glover, 467 U.S. 914, 920 (1984)). That is because “it would defeat the promise of the statute to recognize any preexisting immunity without de- termining ... its compatibility with the purposes of § 1983.” City of Newport, 453 U.S. at 259. With respect to statutes of limitations, likewise, this Court has rejected yoking each specific type of Section 1983 action to a corresponding tort, recogniz- ing that “[a]lmost every § 1983 claim can be favorably analogized to more than one of the ancient common- law forms of action, each of which may be governed by a different statute of limitations.” Wilson, 471 U.S. at 272-73. Instead, “a simple, broad characteri- zation of all § 1983 claims best fits the statute’s re- medial purpose” by ensuring that, within each state, a single, predictable statute of limitations will apply. Id. at 272. In sum, this Court consistently eschews reliance on “narrow analogies between § 1983 claims and state causes of action.” Owens, 488 U.S. at 248. Be- cause those causes of action reflect the concerns of traditional tort law and not the distinct concerns of the U.S. Constitution, Daniels, 474 U.S. at 333, this Court has not “mechanically duplicated” their con- tours under Section 1983, Rehberg, 566 U.S. at 364, even when looking to them “as a source of inspired examples,” Manuel, 137 S. Ct. at 921 (quoting Hart- man, 547 U.S. at 258). 14 Ill. To Advance the Goals of Section 1983, a Constitutional Claim that Fabricated Evidence Was Used To Initiate and Maintain Criminal Proceedings Should Accrue Only When Those Proceedings Have Terminated. In the decision below, the court mechanically ap- plied a general-purpose accrual rule derived from the common law of torts. Instead of doing so, the court should have first “considered” the “refinement{s]” to this rule that the common law has developed for torts that address concerns similar to Petitioner’s constitu- tional claim. Wallace, 549 U.S. at 388. It then should have asked whether adopting any of those re- finements would better serve “the values and purpos- es of the constitutional right at issue.” Manuel, 137 S. Ct. at 921. Applying that approach, the result is clear: when a plaintiff challenges “the initiation and maintenance of criminal proceedings based on fabricated evidence, and the resulting deprivation of his liberty,” Pet’r Br. 4, the statute of limitations should begin running only when those proceedings have terminated. This rule, an application of the common-law concept of a continuing violation, best fits the nature of Petition- ers constitutional claim. Moreover, adopting that rule here best serves Section 1983's goal of redressing and deterring constitutional violations in a uniform manner. A. The court below erred by applying a common- law accrual rule without analyzing whether this rule was a proper fit for the constitutional claim at issue. The court began its analysis with a subtle, but crucial, misstatement of the law. It stated that fed- eral courts “apply general common-law tort principles 15 to determine the accrual date of a [Section] 1983 claim.” Pet. App. 9a (quoting Spak v. Phillips, 857 F.3d 458, 462 (2d Cir. 2017)); see Spak, 857 F.3d at 462 (citing Wallace v. Kato for this point). What this Court has actually said, however, is that federal courts should apply “federal rules conforming in general to common-law tort principles.” Wallace, 549 U.S. at 388 (emphasis added). Behind that subtle dif- ference in wording is a wide gulf in meaning. The notion that courts should “apply general common-law tort principles,” Pet. App. 9a, implies a wholesale adoption of those common-law principles, displacing any further consideration of the unique constitutional right at issue. But this Court’s guid- ance makes clear that the procedural rules governing Section 1983 actions will conform only “in general” to the common law. Wallace, 549 U.S. at 388. That im- portant caveat acknowledges what the court below did not: “In order to further the purpose of § 1983, the rules governing compensation for injuries caused by the deprivation of constitutional rights should be tai- lored to the interests protected by the particular right in question ....” Carey, 435 U.S. at 258-59; accord Manuel, 137 S. Ct. at 920-21. This misstatement by the court below compro- mised its analysis. Instead of using common-law rules as “the appropriate starting point for the in- quiry under § 1983,” Carey, 435 U.S. at 258 (empha- sis added), the court took those rules to be the end of that inquiry. Under “the standard rule” for accrual, the court explained, “accrual occurs when a plaintiff has a complete and present cause of action, that is, when the plaintiff can file suit and obtain relief.” Pet. App. 16 9a-10a. This rule derives from “common-law tort principles.” Wallace, 549 U.S. at 388.5 But the court never carried out the next step in the inquiry: as- sessing whether this standard rule was a proper fit for Petitioner’s constitutional claim, or whether any “refinement” to the standard rule would better vindi- cate Section 1983’s goals. Cf. id. at 384 (“There is, however, a refinement to be considered, arising from the common law's distinctive treatment of the torts of false arrest and false imprisonment ... .”). To be sure, the court acknowledged, and rejected, Petitioner’s analogy between fabrication of evidence and the tort of malicious prosecution. But its rejec- tion of that analogy was premised on its assumption that the standard rule applied. See Pet. App. 13a (re- jecting analogy because “the injury . . . occurs at the time the evidence is used against the defendant”). The court never wrestled with the threshold question of whether this standard rule, or some alternative, should be used when a Section 1983 plaintiff brings fabrication-of-evidence claims like Petitioner’s. By assuming that it should fill in the gaps of Sec- tion 1983 by simply plugging in “general common-law tort principles,” Pet. App. 9a, the decision below failed to abide by this Court’s precedents. B. Petitioner, for his part, also advocates the wholesale adoption of a common-law rule. Instead of 8 See also id. (citing for this rule Bay Area Laundry & Dry Cleaning Pension Trust Fund v. Ferbar Corp., 522 U.S. 192, 201 (1997)); Bay Area Laundry, 522 U.S. at 201 (citing for this rule Rawlings v. Ray, 312 U.S. 96, 98 (1941)); Rawlings, 312 U.S. at 98 (citing for this rule Holloway v. Morris, 182 Ark. 1096, 1099 (1931)); Holloway, 182 Ark. at 1099 (“It is well settled that the statute of limitations does not begin to run in any case until there is a complete and present cause of action.”). 17 pointing to general tort principles, however, he ar- gues that “the proper approach is to adopt the limita- tions rule from the most analogous common law tort.” Pet’r Br. 19. Petitioner at times portrays Wallace v. Kato as demanding this approach, Pet’r Br. 19, and some courts have read Wallace that way. See, e.g., Devbrow v. Kalu, 705 F.3d 765, 767 (7th Cir. 2013) (“we use the rule that applies to the common-law cause of action most similar to the kind of claim the plaintiff asserts” (citing Wallace, 549 U.S. at 388)); Owens v. Balt. City State’s Attorneys Office, 767 F.3d 379, 391-92 (4th Cir. 2014) (same, rejecting argument that “the common law [is] merely the ‘starting point’ in resolving a statute-of-limitations question in a § 1983 action”). Wallace, however, does not call for inflexible reli- ance on whatever the nearest tort analog to a Section 1983 claim happens to be. While the decision firmly indicates that courts should “consider” any “distinc- tive rule[s]” of such torts when selecting the appro- priate standard, Wallace, 549 U.S. at 389-90, its choice to borrow the rule of a particular tort rested on a determination that this rule served similar inter- ests as the constitutional right at issue. Borrowing from that tort, therefore, would adequately serve the values and purposes of Section 1983. In Wallace, defendants who were accused of an unconstitutional arrest urged this Court to apply the same “standard rule” for accrual that the court below applied here. This Court instead opted to apply the “distinctive rule” governing false imprisonment claims. Jd. at 389. In doing so, the Court explained that the tort of false imprisonment protects similar interests as the Fourth Amendment’s ban on unrea- sonable seizures: 18 That tort provides the proper analogy to the cause of action asserted against the present respondents for the following reason: The sort of unlawful detention remediable by the tort of false imprisonment is detention without le- gal process, and the allegations before us arise from respondents’ detention of petition- er without legal process ... . /d. (citations omitted). Because the common-law rule and the relevant constitutional provision were both meant to remedy the same “sort” of injuries, this tort was a “proper analogy” for the constitutional claim. Id. This Court also noted why the common law may have developed this distinctive rule for false impris- onment claims: “the reality that the victim may not be able to sue while he is still imprisoned.” /d. That acknowledgement further underscored why it was appropriate to apply this rule to plaintiffs like the one in Wallace—plaintiffs who likewise may have been unable to sue while still imprisoned. Petitioner also relies on this Court's decision in Heck v. Humphrey. But Heck does not call for me- chanical reliance on the rules of an “analogous tort” any more than Wallace does. This Court there noted that “we look first to the common law of torts,” which is “the appropriate starting point for the inquiry un- der § 1983.” Heck, 512 U.S. at 483 (quoting Carey, 435 U.S. at 257-58) (emphases added). After examin- ing the elements of the tort of malicious prosecution, the Court adopted one of those elements—favorable termination of the criminal proceedings—as a re- quirement for similar constitutional claims. Before doing so, however, the Court assured itself that malicious prosecution was indeed a proper anal- 19 ogy. Because this tort “permits damages for confine- ment imposed pursuant to legal process,” including “compensation for any arrest or imprisonment,” id. at 484, it closely matched the plaintiffs constitutional claims alleging abuse of the criminal process to ar- rest, try, and convict him, id. at 479. The Court also made clear why borrowing the “favorable termination” rule from malicious prosecu- tion would serve the purposes of federal law. That rule “avoids parallel litigation over the issues of probable cause and guilt,” and it precludes “collateral attack|s] on the conviction through the vehicle of a civil suit.” Jd. at 484 (citation and quotation marks omitted). These attributes were especially significant in Heck because there the Court had to reconcile Sec- tion 1983 with the federal habeas corpus statute. /d. at 480-81. By exploring “the common-law principle barring tort plaintiffs from mounting collateral at- tacks on their outstanding criminal convictions,” this Court confirmed its belief that Section 1983, “which borrowed general tort principles, was not meant to permit such collateral attack,” leaving “habeas corpus [as] the exclusive remedy” for such challenges. /d. at 485 n.4, 481. Heck and Wallace, therefore, do not endorse a re- flexive adoption of the rules or elements of whatever tort happens to be most analogous to a plaintiff's con- stitutional claim. Embedded in both decisions was a determination that the constitutional claim at issue truly was analogous to the specific tort from which the Court borrowed, and that applying this tort’s rules would further the purposes of Section 1983. Any doubt or ambiguity on this score has been removed by this Court’s subsequent decisions, which reemphasize that Section 1983 is not “a federalized amalgamation of pre-existing common-law claims,” 20 Rehberg, 566 U.S. at 366, that “any analogies to those causes of action are bound to be imperfect,” id., and that, as a result, “[clommon-law principles are meant to guide rather than to control the definition of § 1983 claims,” Manuel, 137 S. Ct. at 921. This more nuanced interpretation of Heck and Wallace also helps ensure the consistency of those de- cisions with the remainder of this Court’s prece- dent—which has always recognized Section 1983's role as a remedy for uniquely federal rights. It is “the purest coincidence” when the common law seeks to protect comparable rights. Rehberg, 566 U.S. at 366 (quoting Wilson, 471 U.S. at 272). The efficacy of Section 1983 in vindicating constitutional rights can- not hinge on the luck of whether state tort law hap- pens to address similar interests. Indeed, it is pre- cisely where state law is lacking in this regard that Section 1983’s remedy is most essential. C. The court below should not, therefore, have “simply adoptied] the limitations rule applicable to the most analogous common law tort.” Pet’r Br. 2. But neither should the court have applied a “stand- ard rule” of accrual, Pet. App. 9a, without “closely at- tend[ing] to the values and purposes of the constitu- tional right at issue,” Manuel, 137 S. Ct. at 921. In- stead, the court should have considered whether any refinements to that standard rule were a better fit for Petitioner's constitutional claim. And that analysis supports the rule sought by Petitioner: a constitu- tional claim that fabricated evidence was used to ini- tiate and maintain criminal proceedings should not accrue until those proceedings terminate. Although the standard rule under common-law tort principles is that a limitations period begins “when the plaintiff has a complete and present cause of action,” Wallace, 549 U.S. at 388, the common law 21 also recognizes that certa’™ vrongs constitute contin- uing violations. And those violations are governed by a different rule. The tort of false imprisonment, for instance, “does not consist in a single act, but in a prolonged or con- tinuous violation of personal liberty.” 1 Francis Hil- liard, The Law of Torts or Private Wrongs 200 (3d ed. 1866); see id. (“an officer, who illegally imprisons a person, is liable not only for the time he is in the of- ficer’s custody, but for all the time of the imprison- ment”). Accordingly, “[t}he running of the statute of limitations on false imprisonment is subject to a dis- tinctive rule,” commencing only “when the alleged false imprisonment ends.” Wallace, 549 U.S. at 389 (quoting 2 H.G. Wood, Limitation of Actions § 187d(4), at 878 (rev. 4th ed. 1916)). This Court bor- rowed that distinctive rule in Wallace after finding it better suited to the nature of the plaintiffs constitu- tional claim. See supra at 17-18. The same principle applies here. An official's fabrication of evidence to initiate and maintain crim- inal proceedings is an ongoing wrong from which the victim is not free until the proceedings have com- pletely terminated. See Petr Br. 44-50. Just as “(t]he wrong of detention without probable cause con- tinues for the duration of the detention,” Manuel v. City of Joliet, 903 F.3d 667, 670 (7th Cir. 2018), here too the wrong continued for the duration of Petition- er’s trial and retrial. As the court below acknowl- edged, “[t]he constitutional right violated by fabricat- ed evidence is the right not to ... face trial based on such evidence.” Pet. App. l4a-l5a. Petitioner con- tinued to face trial, and thus was deprived of his con- stitutional rights, until his acquittal ended all pro- spect of further prosecution. Until that point, he en- dured “a prolonged or continuous violation of person- 22 al liberty.” 1 Hilliard, supra, at 200; cf. Pet. App. 10a (acknowledging that Petitioner “suffered a_ liberty deprivation because of [fabricated] evidence when he ... Stood trial”). Resisting that conclusion, the court below insist- ed that Respondent's wrongful acts were “complete” as soon as the fabricated evidence was used against Petitioner. Pet. App. 15a. By “complete,” the court seems to have meant that Petitioner by then had been legally harmed and was thus entitled to sue. See id. But as Wallace illustrates, that is not the only consideration. The mere fact that a wrong has begun to injure its victim does not mean that the wrong has ended. In Wallace, after all, the plaintiff “was injured and suffered damages at the moment of his arrest, and was entitled to bring suit at that time,” 549 U.S. at 390 n.3, yet the violation did not end—and his claim did not accrue—until later, when he was no longer held without legal process, id. at 391. Respondent's unconstitutional acts were there- fore not “complete” at the moment he used fabricated evidence in a way that injured Petitioner. That evi- dence led to the instigation and the continuation of criminal proceedings. The violation ended only wher Petitioner was no longer in legal jeopardy, and thus no longer being deprived of his liberty. “When a wrong is ongoing rather than discrete,” as here, “the period of limitations does not commence until the wrong ends.” Manuel, 903 F.3d at 669. Borrowing the distinctive accrual rule for contin- uing violations is appropriate regardless of whether false imprisonment, malicious prosecution, or some other tort is “the closest common law analog” to Peti- tioner’s claim. Pet’r Br. 3. The function of the com- mon law here is to provide “a source of inspired ex- amples.” Manuel, 137 S. Ct. at 921. Because the con- 23 tinuation of Petitioner’s criminal proceedings based on fabricated evidence was an ongoing violation, akin to the continuation of a false imprisonment, it is proper to draw upon the example of false imprison- ment’s distinctive accrual rule. After all, while false imprisonment and malicious prosecution are separate causes of action, the two are “related.” Heck, 512 U.S. at 484; see generally Martin L. Newell, A Treatise on the Law of Malicious Prose- cution, False Imprisonment, and the Abuse of Legal Process (1892).4 Together with their variants, these torts formed “a particular branch of the common law,” Carey, 435 U.S. at 258, addressing the harms that ensue from deprivations of liberty inflicted with inad- equate or tainted legal process. See Newell, supra, § 7, at 9 (“An action will lie against one who has ei- ther unlawfully arrested or imprisoned another, or who has falsely, that is unjustly and maliciously, prosecuted him and caused his arrest.”). And those harms resemble the harms that the Constitution guards against by prohibiting the use of fabricated evidence in criminal proceedings. See Pet. App. 10a (“Under the Fifth and Fourteenth Amendments’ Due Process Clauses, individuals have ‘the right not to be ‘ Illustrating the fluid spectrum between these torts, one of their variants, sometimes called “malicious arrest,” consisted of making false representations to obtain a judicial order for the arrest and detainment of another person, such as an alleged debtor. See 2 C.G. Addison, A Treatise on the Law of Torts § 870, at 83 (H.G. Wood ed., 1881); Ahern v. Collins, 39 Mo. 145, 150 (1866); Herman v. Brookerhoff, 8 Watts 240, 241 (Pa. 1839); Hogg v. Pinckney, 16 S.C. 387, 392 (1882). And i suits for mali- cious arrest, just like in suits for malicious prosecution, courts held that “[t}he new action must not be brought before the first be determined; because till then it cannot appear that the first was unjust.” Cardival v. Smith, 109 Mass. 158, 158 (1872); Hogg, 16 S.C. at 396. 24 deprived of liberty as a result of the fabrication of ev- idence by a government officer . . . .” (quoting Zahrey v. Coffey, 221 F.3d 342, 349 (2d Cir. 2000))). One need not cast about for a “most” analogous tort, there- fore, to conclude that the deferred-accrual rule can, and should, be borrowed in the process of “applying, selecting among, or adjusting common-law approach- es” here—a process centered around “the values and purposes of the constitutional right at issue.” Ma- nuel, 137 S. Ct. at 921. Indeed, considering the similar accrual rule for the tort of malicious prosecution points in the same direction. As Petitioner emphasizes, such claims do not accrue until the allegedly malicious prosecution has terminated in the plaintiffs favor. This rule, whatever its original rationale, ensures that accrual is deferred as long as a victim remains threatened by the baseless prosecution he seeks to challenge—that is, as long as “the prosecution is persisted in and kept hanging over the head of the plaintiff.”. 2 Addison, supra, § 852, at 65; see Cardival, 109 Mass. at 158-59 (in malicious prosecution, “an acquittal by a jury must be shown,” and “a nolle prosequi entered by the attorney for the government is not sufficient; Fe another indictment may still be found on the same complaint’). Notably, a person could traditionally be liable for malicious prosecution if he “continued” a criminal proceeding that was initiated by another person without his participation. 2 Addison, supra, §§ 857, 872, at 76, 85; 1 Hilliard, supra, at 426 (“one may ve liable for the continuance of a prosecution, after no- tice of it, though not commenced by him”); Thomas M. Cooley, A Treatise on the Law of Torts 187 (1879) (a witness giving false evidence who was not involved in the decision to commence prosecution can be held lia- 25 ble if “he interferes improperly afterwards”); Finley v. St. Louis Refrigerator Co., 99 Mo. 559, 13 S.W. 87, 88 (1890) (“[I]t was not vital to plaintiffs recovery that he should show that defendants commenced and con- tinued the prosecution maliciously. If he proved that it was either so commenced or continued by them, it would be sufficient to support his case ... .” (empha- sis added)). As this rule illustrates, a malicious pros- ecution violation continues throughout the pendency of the prosecution. As such, its accrual rule dovetails with the rule for false imprisonment: so long as a plaintiffs liberty is still being infringed—whether by an unauthorized confinement or by the need to face spurious criminal charges—the statute of limitations does not begin running.® Together, the accrual rules of false imprisonment and malicious prosecution form a distinct alternative to the “standard” rule embraced by the court below. And that alternative provides a better fit for Petition- er’s constitutional claim. D. In addition, applying this alternative rule bet- ter serves the “chief goals” of Section 1983, “compen- sation and deterrence.” Hardin v. Straub, 490 U.S. 536, 539 (1989); cf. Burnett v. Grattan, 468 U.S. 42, ®’ The court below attempted to distinguish malicious prose- cution by stating that “the harm—and the due process viola- tion—is in the use of the fabricated evidence to cause a liberty deprivation, not in the eventual resolution of the criminal pro- ceeding.” Pet. App. 13a. While that is true, malicious prosecu- tion is no different. After all, malicious prosecution is entirely focused on the wrongful initiation of legal proceedings. See, e.g., Herman, 8 Watts at 241 (“The gist of the action . . . is the origi- nation of a malicious and groundless prosecution, which ipso facto put the party in peril.”). Despite the fact that instigating a prosecution is the legal wrong, accrual is deferred so long as the party remains “in peril.” Jd. 26 55 (1984) (“the central objective of the Reconstruc- tion-Era civil rights statutes . . . is to ensure that in- dividuals whose federal constitutional or statutory rights are abridged may recover damages or secure injunctive relief’). Without this rule, many victims of fabricated evidence will see their causes of action ac- crue during, or even before, their criminal trials. Forcing such individuals to sue then, or not at all, will inevitably discourage meritorious claims. See Pet’r Br. 55-56. To be sure, the goal of Section 1983 is not simply to allow the most plaintiffs to sue. Robertson v. Wegmann, 436 U.S. 584, 593 (1978) (“If success of the § 1983 action were the only benchmark, ... the ap- propriate rule would then always be the one favoring the plaintiff ....”). But here, without a rule defer- ring accrual until termination, valid claims of consti- tutional violations will be discouraged for reasons that do not promote any of the statute’s goals. Quite the contrary: the very reason individuals may be afraid to file suit against an offending state official is that they are still at risk of suffering the dire legal consequences of that official’s malfeasance. Cf. Pet’r Br. 2 (noting that it was Respondent’s choice whether or not to try Petitioner a second time). Sanctioning this perverse result would be entirely contrary to “the settled § 1983 policy of deterring officials’ unconstitu- tional behavior.” Hardin, 490 U.S. at 542. “There is, of course, a federal interest in dispos- ing of all litigation in the federal courts as expedi- tiously as possible,” but that interest “is vindicated by all statutes of limitations and always must be bal- anced against the countervailing interest in allowing valid claims to be determined on their merits.” /d. at 542 n.10; see Wilson, 471 U.S. at 272 (adopting an in- terpretation of Section 1983 that “best fits the stat- 27 ute’s remedial purpose”); Owen, 445 U.S. at 636 (the Forty-Second Congress anticipated that Section 1983 would be interpreted broadly to promote its remedial goals). A deferred-accrual rule is also appropriate here because it promotes “uniformity,” one of Section 1983’s “subsidiary goals.” Hardin, 490 U.S. at 539. Under this rule, fabrication-of-evidence claims will never accrue before the relevant criminal proceedings have terminated, and in most cases they will accrue upon termination. (Exceptions may arise where a plaintiff had no way of knowing about the fabricated evidence until later.) By reducing the number of sce- narios in which accrual dates hinge on a plaintiffs awareness, or presumed awareness, of a violation, this rule offers greater predictability. A standard ac- crual date that in most cases cannot seriously be challenged will minimize the “uncertainty and time- consuming litigation that is foreign to the central purposes of § 1983.” Wilson, 471 U.S. at 272. ” ” *” Some cases present difficult choices between promoting the breadth of Section 1983's remedy, ensuring uniformity, and hewing to the common-law principles on which the statute was modeled. Not this case. Here, all three imperatives call for the same result. This Court can borrow a traditional common-law rule, employ that rule in service of protecting constitutional rights, and in the process make the law’s application simpler and more predict- able. And it can accomplish all this by reaffirming and applying established principles. The Court should do so. 28 CONCLUSION For the foregoing reasons, the judgment of the court of appeals should be reversed. Respectfully submitted, ELIZABETH B. WYDRA BRIANNE J. GOROD* BRIAN R. FRAZELLE CONSTITUTIONAL ACCOUNTABILITY CENTER 1200 18th Street NW, Suite 501 Washington, D.C. 20036 (202) 296-6889 brianne@theusconstitution.org Counsel for Amicus Curiae March 4, 2019 * Counsel of Record --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0863%3A15. Public record. Not legal advice.