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

No. 18-485

IN THE

Supreme Court of the Hnited States

EDWARD G. MCDONOUGH.

Petitioner,

is

YOUEL SMITH, INDIVIDUALLY AND AS

SPECIAL DISTRICT ATTORNEY FOR THE COUNTY OF

RENSSELAER, NEW YORK, AKA TREY SMITH,

meaponeene.

On Writ of Certiorari to the United States

Court of aggeats for the Second Circuit

BRIEF OF INDIANA, ARKANSAS, LOUISIANA,

NEBRASKA, OHIO, SOUTH CAROLINA, AND

TEXAS AS AMICI CURIAE

IN SUPPORT OF RESPONDENT

Office of the bedionn Ct /RTIS T. HILL, JR.

Attorney General Attorney General

IGC South, Fifth Floor THOMAS M. FISHER*

302 W. Washington St. Solicitor General

Indianapolis, IN 46204 KIAN J. HUDSON

(317) 232-6255 Deputy Solicitor General

Tom.Fisher@atg.in.gov AARON T. CRAFT

JULIA C. PAYNE

*Counsel of Record Deputy Attorneys General

Counsel for Amici States

Additional counsel listed with signature block

————

i

QUESTION PRESENTED

Whether the statute of limitations for a claim for

damages based on the alleged use of fabricated evi-

dence to institute criminal proceedings, brought un-

der 42 U.S.C. § 1983, begins to run when the defend-

ant discovers that fabricated evidence has been intro-

duced in the criminal proceedings or when those pro-

ceedings are terminated in the defendant's favor.

TABLE OF CONTENTS

TABLE OF AUTHORITIES .............:0:ssscsssosecseseseees ili

INTEREST OF THE AMICI STATES .................... l

SUMMARY OF THE ARGUMENT......................... 2

IES. sininiundsnismeneseseennininsciseaibdanhaimcunaeenies 6

I. Because McDonough Has Not Identified

the Specific Right Underlying His Claim,

the Court Cannot Decide When It Accrued...... 6

A. Lower court confusion underscores the

importance of first identifying the

basis of each particular 1983 claim............ 6

B. This case shows the need to identify

the right underlying a 1983 claim ........... 11

Il. McDonough Has Failed to State a

CIID BED CI iiecercosicccesccvcccccsesscessesceses 16

A. McDonough does not have a Due

Procees ClawG0 CIID .00....c0ccccccssccssccsceeees. 17

B. Any Fourth Amendment claim

McDonough may have is encompassed

by his “malicious prosecution” claim........ 22

IN serceseienvictnntsatepenaienmubnineceiiuabiniesmesitogs 26

iii

TABLE OF AUTHORITIES

CASES

Albright v. Oliver,

4 1 IRE ene 17, 20, 21

Alexander v. McKinney,

GOB F.BG GES (7G Cie, BOLD). .0..cccccccesccccccosscescccsess 19

Becker v. Kroll,

494 F.3d 904 (10th Cir. 2007)......................0000000e 23

Bianchi v. McQueen,

818 F.3d 309 (7th Cir. 2016).................... 17, 18, 19

Byrd v. United States,

I a ciciid 23

Carey v. Piphus,

I IE I sic chicisondnsconancntecssestsinancdecessonsonia 8

Castellano v. Fvagozo,

352 F.3d 939 (5th Cir. 2003)................ 9, 10, 18, 19

Clingman v. Beaver,

By MN I ss ortcnntapademmbbedacanennosioaenne 24

Cordova v. City of Albuquerque,

816 F.3d 645 (10th Cir. 2016)...........0.00000.0.0... 9, 15

Cty. of Sacramento v. Lewis,

I ach ceetesousbibictioninenipaedtbnill 23

iv

CASES [CONT'D]

Ferran v. Town of Nassau,

bee FY [: A )| RR ee 24

Ganek v. Leibowitz,

ope fl fe Ry: Pe ST 12

Garnett v. Undercover Officer C0039,

638 F.3d 266 (2d Cir. DOUG) .........0...cccccecccccoscsecess 12

Gerstein v. Pugh,

ED Ue. Te Cae ices tas sccspbitcnsiohtensitnciniainatinns 5, 20

Graham v. Connor,

gk ere 10

Heck v. Humphrey,

i. gas % 2. — ea passim

Lanning v. City of Glens Falls,

ff 8 tit | See 24

Manuel v. City of Joliet,

tof Be BOT: 5 See

Manuel v. City of Joliet,

903 F.3d 667 (7th Cir. 2018)......................0008 20, 21

Massey v. Ojaniit,

760 F.3d 348 (4th Cir. 2014)...........00.0cscecseccsseeseees 19

McIntosh v. City of New York,

722 Fed. App’x 42 (2d Cir. 2018).....................202- 12

CASES [CONT'D]

Monroe v. Pape,

I iain icecsinnamnsseadinanianinentnd 8

Morse v. Fusto,

604 F.38 638 (Oa Cir. BO1G)...............00.0............... 12

Napue v. Illinois,

SEE a a oe 17

Owens v. Okure,

Ea 6,7

Parish v. City of Chicago,

504 F.3d 551 (7th Cir. 2009)..........................00000 10

Parratt v. Taylor,

ST 12, 13, 17

Paul v. Davis,

EE Ee ee 20

Ricciuti v. N.Y.C. Transit Auth.,

124 F.3d 123 (2d Cir. 1997).................cccceceeee 15, 16

Saunders-El v. Rohde,

776 F.36 G86 (7th Cir. 30126)................................ 19

Siegert v. Gilley,

GE ee 19, 20

Swartz v. Insogna,

704 F.3a 106 (Od Cir. 3013) ............0000................ 24

CASES [CONT'D]

Wallace v. Kato,

ls, WI III a cccneniincmntsitnsenanieiieenasiates 7, 8, 14, 15

Wilson v. Garcia,

ER SS a 2, 6, 7,8

Young v. Wells Fargo Bank, N.A.,

ce ef 4 EE 24

STATUTES

Se Es OO Se cinsnincncicesidennaseaksiedipiaieisnsaueuiins 1, 2, 14

ERE PR SESS Ee re eee ee: 8

fi EERE Rare SSE NEN 2

aC TT | 2

INTEREST OF THE AMICI STATES

The States of Indiana, Arkansas, Louisiana, Ne-

braska, Ohio, South Carolina, and Texas respectfully

submit this brief as amici curiae in support of re-

spondent.

Officials of Amici States are frequent defendants

in cases brought under 42 U.S.C. § 1983, and for that

reason they have a strong interest in promoting clar-

ity in the law governing 1983 claims. As this case

shows, lower courts’ decisions and litigants’ filings

frequently display profound confusion over the nature

of the 1983 claims at issue, including such fundamen.

tal matters as which constitutional rights and which

common-law analogies—if any—the claims implicate.

In addition, the Amici States have an interest in

ensuring that courts do not expand the set of claims

cognizable under section 1983 to include theories un-

supported by the Constitution. Petitioner asks the

Court to set an accrual rule for a “fabrication of evi-

dence” claim, a claim unmoored from any particular

eonstitutional provision. If the Court were to accept

.tis claim, it could subject state officials to 1983

claims that the Constitution does not authorize. Ra-

ther than address the accrual question presented by

the petition, the Court should either dismiss the writ

as improvidently granted or affirm the decision below

on the ground that Petitioner has failed to state a

claim at all. Many cases cleanly present questions re-

garding the proper accrual rule for particular 1983

claims. This case is not one of them.

SUMMARY OF ARGUMENT

Section 1 of the Civil Rights Act of 1871 provides

that any person who, under color of state law, de-

prives any person of “any rights .. . secured by the

Constitution of the United States, shall . . . be liable

to the party injured,” 17 Stat. 13 (1871), Rev. Stat. §

1979 (1875). Although this provision, now codified as

amended as 42 U.S.C. § 1983, has been the subject of

hundreds of thousands of decisions in the nearly 150

years since its adoption, it continues to be a source of

“conflict, confusion, and uncertainty.” Wilson v. Gar-

cia, 471 U.S. 261, 266 (1985).

This case is a prime example of the conceptual fog

that has descended upon much of the litigation involv-

ing section 1983. Petitioner Edward McDonough was

indicted for allegedly participating in a scheme of ab-

sentee-ballot fraud, and he claims respondent Youel

Smith, the special prosecutor who directed his prose-

cution, framed him by “using forged affidavits, offer-

ing false testimony, and using faulty DNA methods.”

Pet. App. 5a. McDonough was never convicted—his

first trial ended with a mistrial and his second con-

cluded with his acquittal—and it is unclear whether

he spent any significant time in custody, as he appar-

ently was arrested and released on his own recogni-

zance following his indictment. Pet. Br. 40. If he had

been subject to a meaningful period of detention, the

complaint McDonough filed in response to the alleged

frame-up presumably would have showcased his pre-

trial custody. Instead, the 174-page, 1220-paragraph

complaint seeks damages for his alleged financial,

emotional, and reputational costs of undergoing the

two criminal trials. J.A. 249-51, {4 1198-1208.

McDonough’s complaint seeks these damages via

two 1983 claims, one a “Constitutional Right Not to

be Deprived of Liberty as a Result of Fabrication of

Evidence,” and the other a “Constitutional Right Not

to be Prosecuted Maliciously without Probable

Cause.” Id. at 252—53. Notably, the complaint does

not identify the precise constitutional source of these

rights, see id. (listing only the Fourth, Fifth, Sixth and

Fourteenth Amendments generally), and McDonough

has not clarified his theories since. As the suit pro-

gressed, the constitutional foundations of

McDonough’s claims never materialized; the parties

and courts merely characterized the claims as a “fab-

rication of evidence claim” and a “malicious prosecu-

tion” claim. Pet. App. 47a; see also id. at 6a (decision

below stating that McDonough claims the defendants

“(1) had violated his right to due process by fabricat-

ing evidence and later using it against him before the

grand jury and in his two trials and (2) were liable for

malicious prosecution”). Even now, McDonough’s

merits brief maintains that the Court need not “delve

into what the elements of McDonough’s constitutional

claim are.” Pet. Br. 19.

In short, McDonough has continually ignored “the

threshold inquiry in a § 1983 suit, which requires

courts to ‘identify the specific constitutional right’ at

issue.” Manuel v. City of Joliet, 137 S. Ct. 911, 920

(2017) (emphasis added) (quoting Albright v. Oliver,

510 U.S. 266, 271 (1994) (plurality opinion)). Only

“lalfter pinpointing that right,” should courts “deter-

mine the elements of, and rules associated with, an

action seeking damages for its violation.” I/d.

McDonough has never clearly articulated the consti-

tutional source of either of his claims, and the ques-

tion he asks the Court to answer—when the statute

of limitations began running against his “fabrication

of evidence” claim—therefore “jump|s] the gun.” Jd. at

922 n.10.

Because it is impossible to answer the accrual

question purportedly before the Court, the Court

should either dismiss the writ as improvidently

granted or affirm the dismissal of McDonough’s claim

on the ground that McDonough has failed to state a

claim at all.

I. The history of section 1983 litigation shows that

failing to identify the federal law “deprivation” under-

lying a 1983 claim inevitably sows confusion. /d. at

920. Manuel reminded courts that their first task is

always to “identify the specific constitutional right at

issue.” Jd. That task focuses the inquiry on the central

constitutional issue and paves the way to answer

later questions that depend on the claim’s underlying

theory. The Court has taken precisely this constitu-

tion-first approach in prior cases addressing accrual

rules. Because McDonough has failed to explain the

constitutional basis of his claim, it is useless to at-

tempt to answer his accrual question. The Court

therefore should dismiss the writ as improvidently

granted.

Il. Even if the Court were to overlook

McDonough’s failure to identify specifically the con-

stitutional right at issue, it is clear that the Due Pro-

cess Clause does not recognize any such right.

McDonough posits that the Due Process Clause may

prohibit “subjecting a defendant to criminal charges

on the basis of fabricated evidence,” Pet. Br. 41, but

this suggestion is foreclosed by the longstanding rule

that the accused is not “entitled to judicial oversight

or review of the decision to prosecute’—as opposed to

the decision to seize and detain. Gerstein v. Pugh, 420

U.S. 103, 119 (1975) (emphasis added). This means

that the only right that could possibly support

McDonough’s “fabrication of evidence” claim is the

Fourth Amendment right not to be seized without

probable cause. Critically, however, any Fourth

Amendment theory in this case was entirely encom-

passed by McDonough’s “malicious prosecution”

claim—which lower courts dismissed as to Smith on

absolute immunity grounds, and which remains pend-

ing against the other defendants. And because the de-

fendants have never had occasion to address the nec-

essary elements of such a Fourth Amendment claim,

it would be unfair to permit McDonough to refashion

his “fabrication of evidence” claim at this late date.

Accordingly, the Court should either dismiss the

writ as improvidently granted or affirm the lower

courts’ dismissal of McDonough’s “fabrication of evi-

dence” claim.

ARGUMENT

I. Because McDonough Has Not Identified

the Specific Right Underlying His Claim,

the Court Cannot Decide When It Accrued

A. Lower court confusion underscores

the importance of first identifying the

basis of each particular 1983 claim

While the Civil Rights Act of 1871 created a “rem-

edy for the violation of constitutional rights,” Wilson

v. Garcia, 471 U.S. 261, 277 (1985), it did not “contain

a specific statute of limitations governing § 1983 ac-

tions,” id. at 266. This statutory lacuna, “common-

place” in federal law, id., has required courts to look

to state law and general common-law principles to de-

termine both the length and the beginning of the lim-

itations period. And these common-law analogies,

while often useful, also frequently distract courts and

litigants from the central question in every 1983

case—whether the defendant, acting under color of

state law, violated a right the Constitution confers on

the plaintiff.

Courts originally determined the length of the lim-

itations period in 1983 cases by “seeking state-law

analogies for particular § 1983 claims” and choosing

the limitations period for the state-law claim most

analogous to the particular 1983 claim at issue. Ow-

ens v. Okure, 488 U.S. 235, 240 (1989). Because the

“constitutional claims that have been alleged under

§ 1983 . . . encompass numerous and diverse topics

and subtopics,” and because “almost every § 1983

claim can be favorably analogized to more than one of

the ancient common-law forms of action,” this practice

“inevitably [bred] uncertainty and time-consuming

litigation.” Wilson, 471 U.S. at 272—73; see also Ow-

ens, 488 U.S. at 240. The Court ultimately resolved

that confusion by identifying a single limitations pe-

riod for each State—the period applicable to the

State’s personal-injury torts—and applying that pe-

riod to all 1983 claims. /d. at 236.

Lower courts have continued to struggle, however,

to identify rules for determining when limitations pe-

riods begin for 1983 claims. The limitations clock gen-

erally starts ticking when the plaintiff “has a com-

plete and present cause of action.” Wallace v. Kato,

549 U.S. 384, 388 (2007) (internal quotation marks

and citation omitted). But that rule requires courts to

determine which elements constitute a “complete”

cause of action for the various types of 1983 claims.

And to answer that question courts have again looked

for state-law and common-law analogies.

In Heck v. Humphrey, 512 U.S. 477, 478-79 (1994),

for example, the Court applied the favorable-termina-

tion element of common-law malicious prosecution to

a 1983 wrongful conviction and confinement claim

predicated on the destruction of exculpatory evidence.

The Court held that such a 1983 claim does not accrue

until the plaintiffs “conviction or sentence has .. .

been invalidated.” Jd. at 487. And in Wallace, the

Court relied on the common-law rules for false arrest

and false imprisonment to conclude that a 1983 claim

for an unconstitutional arrest accrues “as soon as the

allegedly wrongful arrest occur|s],” 549 U.S. at 388—

although the limitations period does not begin until

the “false imprisonment [comes] to an end” with the

initiation of legal process, id. at 389.

There is strong support for using common-law

analogies to resolve difficult questions unanswered by

the statutory text: The Civil Rights Act of 1866 en-

dorses “extend|ing]” state common law to 1983 cases

when necessary. See 14 Stat. 27 (1866) (codified as

amended at 42 U.S.C. § 1988); Wilson, 471 U.S. at

266-69. And the Court has long recognized that sec-

tion 1983 “should be read against the background of

tort liability.” Monroe v. Pape, 365 U.S. 167, 187

(1961), overruled in part on other grounds by Monell

v. Dep't of Soc. Servs. of City of New York, 436 U.S.

658 (1978); see also Carey v. Piphus, 435 U.S. 247,

257-258 (1978).

But while common-law analogies can be useful for

implementing section 1983, it is crucial to remember

that Ҥ 1983 provides a uniquely federal remedy .. .

[that] can have no precise counterpart in state law.”

Wilson, 471 U.S. at 271—72 (internal quotation marks

and citations omitted); see id. at 272 (“[I]t is ‘the pur-

est coincidence’ when state statutes or the common

law provide for equivalent remedies; any analogies to

those causes of action are bound to be imperfect.”

(quoting Monroe, 365 U.S. 167 at n.5 (Harlan, J., con-

curring))). Common-law analogies, unfortunately,

sometimes obscure section 1983's focus on the “depri-

vation” of a constitutional right, leading litigants and

lower courts to confuse the common-law analogues

with the actual 1983 claims.

For example, many 1983 plaintiffs—including

McDonough—traise what they call “malicious prosecu-

tion” claims without ever identifying the precise con-

stitutional deprivations that would make the claims

actionable under section 1983. See, e.g., Cordova v.

City of Albuquerque, 816 F.3d 645, 661 (10th Cir.

2016) (Gorsuch, J., concurring) (observing that the

plaintiff sought damages on the ground that “local law

enforcement officials violated his Fourth or maybe his

Fourteenth Amendment rights (we're never told

which) by committing the common law tort of mali-

cious prosecution,” and that even the defendants “ac-

cept[ed] the premise that the Constitution somewhere

(they too never say where) contains something resem-

bling a malicious prosecution tort”).

10

Similarly, courts adjudicating “malicious prosecu-

tion” 1983 claims often share “a common shortcom-

ing—either not demanding that this genre of claims

identify specific constitutional deprivations or strug-

gling in their efforts to do so.” Castellano v. Fragozo,

352 F.3d 939, 945 (5th Cir. 2003) (en banc). As the

Fifth Circuit has recognized, using the “malicious

prosecution” label, particularly without identifying

the specific constitutional provision at issue, “only in-

vites confusion.” Jd. at 954.

Like the earlier problems with matching 1983

claims to particular state-law torts for the purpose of

identifying the applicable limitations period, parties’

and courts’ focus on common-law analogues rather

than the constitutional violations themselves has led

to “a mix of misstatements and omissions which leads

to... inconsistencies and difficulties.” Jd. at 949; see

also Parish v. City of Chicago, 594 F.3d 551, 554 (7th

Cir. 2009) (“If a plaintiff can establish a violation of

the fourth (or any other) amendment there is nothing

but confusion gained by calling the legal theory ‘mali-

cious prosecution.” (internal brackets, quotation

marks, and citation omitted)). In sum, failing to spec-

ify the constitutional right at issue in 1983 cases leads

to mistaken conclusions and an increasingly unwieldy

1983 doctrine. Cf. Graham v. Connor, 490 U.S. 386,

394 (1989) (explaining that the validity of an “exces-

sive force” claim under section 1983 “must ... be

judged by reference to the specific constitutional

1]

standard which governs that [particular constitu-

tional] right, rather than to some generalized ‘exces-

sive force’ standard” (citations omitted)).

For these reasons, before determining the accrual

rule for a particular type of 1983 claim, the Court

should “insist on clarity in the identity of the consti-

tutional violations asserted.” Castellano, 352 F.3d at

945.

B. This case shows the need to identify the

right underlying a 1983 claim

McDonough has failed to specify the constitutional

basis of his claims, and his case aptly illustrates the

hazards of proceeding with a 1983 case without a

clear idea of the alleged constitutional violation at is-

sue. As noted above, McDonough’s complaint sug-

gested that his “fabrication of evidence” and “mali-

cious prosecution” claims could be premised on viola-

tions of the Fourth, Fifth, Sixth, and Fourteenth

Amendments generally, without specifying which

constitutional provisions were connected to which

claims or how any of these provisions support either

of the claims. See J.A. 249-51, 44 1198—1208.

More egregiously, in responding to the defendants’

motions to dismiss in the district court, in his briefs

on appeal, and now before this Court, McDonough has

continued to refuse to specify whether the constitu-

tional violation should be “characterized as a seizure

without probable cause, a violation of due process, or

12

the absence of a fair trial.” Cert. Pet. 25-26. His mer-

its brief offers a few fleeting suggestions for how to

ground his “fabrication of evidence” claim in a specific

constitutional violation, Pet. Br. 41—43, but he re-

mains unwilling to commit to any single theory. In-

deed, he repeatedly asserts that there is “no need for

the Court to determine the elements of the Section

1983 claim or otherwise analyze the cause of action.”

Id. at 3; see also id. at 19 (“The Court thus does not

need to delve into what the elements of McDonough’s

constitutional claim are.”); id. at 42 (“This Court need

not decide in this case whether a Section 1983 claim

based on fabrication of evidence should be textually

housed within the Fourth Amendment or the Due

Process Clause (or even within the Sixth Amend-

ment).”).

McDonough is certainly not the first 1983 plaintiff

to refuse to spell out the constitutional violation that

underlies his “fabrication of evidence” claim. For ex-

ample, the Second Circuit itself, which has said a “fab-

rication of evidence” claim exists under section 1983,

has repeatedly and explicitly refused to say where in

the Constitution such a claim can be found. See, e.g.,

Ganek v. Leibowitz, 874 F.3d 73, 90 n.10 (2d Cir.

2017); Garnett v. Undercover Officer C0039, 838 F.3d

265, 276 n.6 (2d Cir. 2016); Morse v. Fusto, 804 F.3d

538, 547 n.7 (2d Cir. 2015).

Unsurprisingly, such refusal has led to “confusion”

in the Second Circuit’s cases. McIntosh v. City of New

York, 722 Fed. App’x 42, 45 n.2 (2d Cir. 2018). But the

13

Second Circuit’s unwillingness to define the constitu-

tional right at issue is no excuse for McDonough’s fail-

ure to do so; it is McDonough’s responsibility to plead

his claims adequately. And if the Court were to jump

ahead to McDonough’s accrual question without iden-

tifying the constitutional right underlying his claim,

it would expand the confusion over “fabrication of ev-

idence” claims far beyond the Second Circuit.

In skipping ahead to the accrual question,

McDonough defies the Court’s repeated instruction

that “in any § 1983 action the initial inquiry must fo-

cus on... the two essential elements to a § 1983 ac-

tion,” whether the defendant “act{ed] under color of

state law’ and whether his conduct deprived the

plaintiff “of rights ... secured by the Constitution.”

Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled

in part on other grounds by Daniels v. Williams, 474

U.S. 327 (1986).

Again, the Court squarely addressed this issue

just two terms ago, when it held that “the threshold

inquiry in a § 1983 suit... requires courts to ‘identify

the specific constitutional right’ at issue.” Manuel v.

City of Joliet, 137 S. Ct. 911, 920 (2017) (quoting Al-

bright v. Oliver, 510 U.S. 266, 271 (1994) (plurality

opinion)). The Court obligated lower courts to “deter-

mine the elements of, and rules associated with,” a

1983 claim only “/a/fter pinpointing [the] right” un-

derlying the claim. Jd. (emphasis added).

As noted above, starting 1983 cases by identifying

the constitutional right at issue minimizes confusion

14

and keeps the purpose of section 1983—remedying

constitutional (and other federal law) violations—at

the forefront. In addition, it is necessary to specify the

constitutional right before proceeding to other ques-

tions because in the process of “applying, selecting

among, or adjusting common-law approaches” to

these questions “courts must closely attend to the val-

ues and purposes of the constitutional right at issue,”

id, at 921—-which courts cannot do if they do not know

which right is at stake.

Indeed, the Court’s cases addressing when 1983

claims accrue often turn on the type of claim at issue.

In Heck, for example, the Court confronted a 1983

claim brought by a prisoner who had been convicted

of voluntary manslaughter following what he alleged

was an “unlawful, unreasonable, and arbitrary inves-

tigation” that involved the knowing destruction of ex-

culpatory evidence and the use of “an illegal and un-

lawful voice identification procedure” at his trial. 512

U.S. at 478-79. The Court held that the prisoner's

“damages claims challenged the legality of the convic-

tion” under the Due Process Clause, id. at 490, and

that therefore his claim would not accrue until his

“conviction or sentence has . . . been invalidated,” id.

at 486-87.

Meanwhile, in Wallace the Court held that a dif-

ferent accrual rule applied because the plaintiff had

asserted a different sort of 1983 claim: He alleged that

“officers had arrested [him] without probable cause,

in violation of the Fourth Amendment.” 549 U.S. at

15

386. The Court held that such Fourth Amendment un-

lawful-arrest claims accrue “as soon as the allegedly

wrongful arrest occur[s],” though the limitations pe-

riod begins only when the “false imprisonment

|comes] to an end” with the initiation of legal process.

Id. at 388-89.

Here, the Court cannot engage in the analysis it

undertook in Heck and Wallace until it pins down

which constitutional right of which McDonough al-

leges he was “deprivied].” 42 U.S.C. § 1983. Even if

the Court were simply to apply “the standard rule

that [accrual occurs] when the plaintiff has ‘a com-

plete and present cause of action,” it would need to

know which elements “complete” the cause of action.

Wallace, 549 U.S. at 388 (quoting Bay Area Laundry

and Dry Cleaning Pension Trust Fund v. Ferbar Corp.

of Cal., 522 U.S. 192, 201 (1997) (brackets in origi-

nal)).

Because McDonough has failed to complete even

the first step of the 1983 analysis, the Court should

refuse to skip ahead to his question regarding the ac-

crual rule for his “fabrication of evidence” claim.

“When the parties cannot be bothered to identify the

source of their supposedly constitutional complaint,”

there is no reason to “enter[] a fight over an element

of a putative constitutional cause of action that may

not exist.” Cordova, 816 F.3d at 666 (Gorsuch, J., con-

curring).

16

Il. McDonough Has Failed to State a

Cognizable 1983 Claim

Although McDonough still will not settle on a sin-

gle constitutional theory, his merits brief now at least

asserts that his claim rests on the proposition “that to

initiate and maintain criminal proceedings against a

defendant on the basis of fabricated evidence violates

the Constitution.” Pet. Br. 43. He offers two cursory

suggestions for what provision of the Constitution

that conduct might violate: the Due Process Clause

and the Fourth Amendment.’ Neither provision ap-

plies here. No Due Process Clause violation occurred

because McDonough’s criminal trial did not produce a

conviction without due process of law. Moreover,

McDonough says his claim rests on his allegation that

proceedings against him were “initiate[d] and main-

tainled]” on the basis of fabricated evidence, but the

Court has long held that the Due Process Clause does

* McDonough also briefly gestures towards the Sixth Amend-

ment, Pet. Br. 42-43 n.12, but he fails to explain how a Sixth

Amendment “fair trial” violation could occur if the trial ends in

an acquittal. And the Second Circuit case on which he relies, Ric-

ciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 130 (2d Cir. 1997)

(cited in Morse v. Fusto, 804 F. 3d 538, 547 n.7 (2d Cir. 2015)),

itself cites three of this Court's Due Process Clause cases for the

proposition that “like a prosecutor's knowing use of false evi-

dence to obtain a tainted conviction, a police officer's fabrication

and forwarding to prosecutors of known false evidence works an

unacceptable ‘corruption of the truth-seeking function of the

trial process.” Ricciuti, 124 F.3d at 130 (quoting U.S. v. Augurs,

427 U.S. 97, 104 (1976), and citing Giglio v. United States, 405

U.S. 150, 153 (1972), and Mooney v. Holohan, 294 U.S. 103, 112

(1935)).

17

not impose constitutional requirements on the deci-

sion to bring criminal charges.

The Fourth Amendment does impose restrictions

on pre-conviction seizures, and McDonough may have

a Fourth Amendment claim lurking among the facts

of this case; but he has not clearly articulated such a

claim. And even if he had a Fourth Amendment claim,

his “malicious prosecution” claim—which the lower

courts dismissed as to Smith and which is currently

pending against the other defendants—is his Fourth

Amendment claim. Because McDonough has no free-

standing “fabrication of evidence” claim, the Court

should either dismiss the writ as improvidently

granted or affirm the lower courts’ dismissal of the

claim.

A. McDonough does not have a Due Process

Clause claim

The Fourteenth Amendment's Due Process Clause

does not “protect{] against al/ deprivations of life, lib-

erty, or property by the State,” but “protects only

against deprivations ‘without due process of law.”

Parratt v. Taylor, 451 U.S. 527, 537 (1981) (emphasis

added) (quoting Baker v. McCollan, 443 U.S. 137, 145

(1979)), overruled in part on other grounds by Daniels

v. Williams, 474 U.S. 327 (1986). The Due Process

Clause analysis therefore requires the Court to deter-

mine the precise deprivation at issue and then deter-

mine what process, if any, the Constitution makes

“due.” Of course, when a liberty deprivation consists

of imprisonment pursuant to a criminal conviction,

18

due process encompasses the strict requirements the

Constitution imposes on criminal trials. See Albright

v. Oliver, 510 U.S. 266, 283 (1994) (Kennedy, J., con-

curring in the judgment). It is thus black-letter law

that a person who is convicted and then confined be-

cause of destroyed or fabricated evidence—and who is

later acquitted—may bring a Due Process Clause

claim under section 1983. See, e.g., Heck v. Humphrey,

512 U.S. 477 (1994); Napue v. Illinois, 360 U.S. 264

(1959).

Because McDonough was not convicted, however,

he must identify some other deprivation. He may not

simply assert that the defendant fabricated evidence:

“(I|f an officer (or investigating prosecutor) fabricates

evidence and puts that fabricated evidence in a

drawer, making no further use of it, then the officer

has not violated due process; the action did not cause

an infringement of anyone’s liberty interest.” Bianchi

v. McQueen, 818 F.3d 309, 319 (7th Cir. 2016) (quot-

ing Whitlock v. Brueggemann, 682 F.3d 567, 582 (7th

Cir. 2012) (brackets in original)). Notably,

McDonough does not allege that his liberty depriva-

tion consisted of pretrial detention; it appears, in fact,

that McDonough was released on his own recogni-

zance following his arraignment. Pet. Br. 40. He in-

stead argues that “[b]eing subject to criminal proceed-

ings on the basis of fabricated evidence was an ongo-

ing deprivation of McDonough’s liberty.” Jd. at 47. As

the United States puts it, McDonough’s purported lib-

erty deprivation thus concerns the “initiation of crim-

inal proceedings” itself. U.S. Br. 7; see also Pet. Br.

19

14—15 (“The ‘gravamen’ of his claim . . . is the ‘wrong-

fulness’ of the criminal proceedings against him.”).

McDonough provides no reason, however, to con-

clude that the initiation and continuation of criminal

proceedings, standing alone, constitute a deprivation

of “liberty” under the Due Process Clause. All three of

the Court’s cases he cites in support of his Due Pro-

cess Clause theory involved convictions. See Pet. Br.

41 (citing Briscoe v. LaHue, 460 U.S. 325, 326 n.1

(1983); Miller v. Pate, 386 U.S. 1, 7 (1967); Mooney v.

Holohan, 294 U.S. 103, 112 (1935)).

Furthermore, notwithstanding McDonough’s bald

assertion that there is “no question that being in-

dicted and criminally tried is a serious deprivation of

liberty,” id. at 40, at least three circuits have explic-

itly rejected his position, holding that “causing

charges to be filed without probable cause will not

without more violate the Constitution.” Castellano v.

Fragozo, 352 F.3d 939, 953-54 (5th Cir. 2003) (en

banc); see also Massey v. Ojaniit, 759 F.3d 343, 354

(4th Cir. 2014) (“Fabrication of evidence alone is in-

sufficient to state a claim for a due process violation;

a plaintiff must plead adequate facts to establish that

the loss of liberty—i.e., his conviction and subsequent

incarceration—resulted from the fabrication.”); Alex-

ander v. McKinney, 692 F.3d 553, 557 n.2 (7th Cir.

2012) (holding that “the burden of appearing in court

and attending trial” does not “in and of itself, consti-

tute a deprivation of liberty,” reasoning that “[i]t

20

would be anomalous to hold that attending a trial de-

prives a criminal defendant of liberty without due

process of law, when the purpose of the trial is to ef-

fectuate due process”). Indeed, because initiating and

maintaining a criminal prosecution is not itself a lib-

erty deprivation, the Seventh Circuit has repeatedly

rejected due process claims where, as here, the 1983

plaintiff was charged, arrested, arraigned, promptly

released, and eventually acquitted. See, e.g., Bianchi,

818 F.3d at 319-20; Saunders-El v. Rohde, 778 F.3d

556, 560 (7th Cir. 2015); Alexander, 692 F.3d at 557

& n.2.

These circuits have rejected Due Process Clause

theories like McDonough’s because this Court’s prec-

edents squarely foreclose them. The Court has specif-

ically held that “injury to reputation by itself [i]s not

a ‘liberty’ interest protected under the Fourteenth

Amendment. .. . Defamation, by itself, is a tort action-

able under the laws of most States, but not a consti-

tutional deprivation.” Siegert v. Gilley, 500 U.S. 226,

233 (1991); see also Paul v. Davis, 424 U.S. 693, 712,

(1976) (“[T]he interest in reputation . . . is neither ‘lib-

erty nor ‘property’ guaranteed against state depriva-

tion without due process of law.”). And if simply initi-

ating a prosecution were a liberty deprivation, the

Constitution necessarily would impose some standard

or some procedural protections on the decision to

bring criminal charges; but the Court has long re-

jected the idea that the Constitution provides for “ju-

dicial oversight or review of the decision to prosecute.”

Gerstein v. Pugh, 420 U.S. 103, 119 (1975).

21

Thus, in Albright v. Oliver, a majority of the Court

specifically held that there is no “substantive due pro-

cess right to be free of prosecution without probable

cause.” 510 U.S. 266, 271 (1994) (piurality opinion);

see also id. at 281 (Kennedy, J., concurring in the

judgment). And at least a plurality of the Court con-

cluded that the “right to be free of prosecution without

probable cause” could not be found within procedural

due process principles either. See id. at 275 (Scalia, J.,

concurring) (“I think it unlikely that the procedures

constitutionally ‘due,’ with regard to an arrest, consist

of anything more than what the Fourth Amendment

specifies.”); id. at 283 (Kennedy, J., concurring in the

judgment) (“[T]he due process requirements for crim-

inal proceedings do not include a standard for the in-

itiation of a criminal prosecution.”); see also Manuel

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

cision on remand) (Easterbrook, J.) (noting that there

is “no such thing as a constitutional right not to be

prosecuted without probable cause” (quoting Serino v.

Hensley, 735 F.3d 588, 593 (7th Cir. 2013)).

Finally, even if McDonough could demonstrate

that he suffered a “deprivation of liberty” prior to his

acquittal, he would need to establish that he was not

afforded the process the Constitution makes “due.”

And critically, “[t]}he Framers considered the matter

of pretrial deprivations of liberty and drafted the

Fourth Amendment to address it.” Albright, 510 U.S.

at 274 (plurality opinion) (emphasis added). As the

Court recently reiterated, “Gerstein and Albright . . .

22

both reflected and recognized” a “constitutional divi-

sion of labor” between the Due Process Clause and the

Fourth Amendment: The Due Process Clause estab-

lishes the procedures the government must follow be-

fore depriving an individual of life, liberty, or property

as a result of a criminal conviction, while the Fourth

Amendment “provides ‘standards and procedures”

governing the deprivation of an individual’s liberty or

property “pending trial.”” Manuel v. City of Joliet, 137

S. Ct. 911, 920 n.8 (2017) (quoting Gerstein, 420 U.S.

at 125 n. 27 (emphasis added in Manuel)).

In short, because any liberty deprivation

McDonough may have suffered would be governed by

the Fourth Amendment, any claim he might have

would arise if at all, under the Fourth Amendment.

B. Any Fourth Amendment claim

McDonough may have is encompassed by

his “malicious prosecution” claim

Although the circumstances of this case perhaps

could give rise to a 1983 claim for a violation of the

Fourth Amendment, the Court should refuse to as-

sume the existence of such a hypothetical claim for

the purpose of answering McDonough’s accrual ques-

tion. Because McDonough has never clearly articu-

lated a Fourth Amendment theory, the parties have

never had occasion to address what elements such a

claim would have or brief whether McDonough has al-

leged facts sufficient to support those elements. And

in any case, McDonough has already had a chance to

pursue a Fourth Amendment claim—under the label

23

of “malicious prosecution”—which was dismissed as

to Smith on absolute immunity grounds and remains

pending against the other defendants.

Throughout this litigation McDonough has chosen

not to frame his “fabrication of evidence” claim in

Fourth Amendment terms. Particularly in light of the

Second Circuit's affirmance of the dismissal of

McDonough’s “malicious prosecution” claim against

Smith, it would be unfair to give McDonough a second

bite at the apple by allowing him to refashion a claim

he failed to articulate earlier.

The defendants have never had an opportunity to

dispute the necessary elements of a Fourth Amend-

ment claim, and there is little in the briefing before

the Court addressing how the unique features of

Fourth Amendment claims might affect when the lim-

itations period for those claims begins. For example,

without a “seizure,” McDonough has no Fourth

Amendment claim, see, e.g., Cty. of Sacramento v.

Lewis, 523 U.S. 833, 843—44 (1998), and while some

courts have held that conditions of pretrial release

(such as requirements to appear in court and re-

strictions on travel) may constitute Fourth Amend-

ment “seizures,” other courts have concluded that

they do not, see generally Becker v. Kroll, 494 F.3d

904, 915—16 (10th Cir. 2007) (collecting cases on both

sides of the question). It therefore would be inequita-

ble to assume the existence of a Fourth Amendment

theory without giving the defendants an opportunity

to address this question.

24

It would also be impracticable for the Court to con-

sider a possible Fourth Amendment theory at this

point. McDonough did not characterize his “fabrica-

tion of evidence” claim as a Fourth Amendment claim

below, “and those courts did not have occasion to ad-

dress ... what consequences might follow from” such

characterization. Byrd v. United States, 138 S. Ct.

1518, 1526—27 (2018). “Because this is ‘a court of re-

view, not of first view,” and because “it is generally

unwise to consider arguments in the first instance”

the Court should decline to consider any Fourth

Amendment theory McDonough might pursue. /d. at

1527 (quoting Cutter v. Wilkinson, 544 U.S. 709, 718,

n. 7 (2005)).

More fundamentally, McDonough’s “malicious

prosecution” claim already addresses any Fourth

Amendment violation that may have occurred. As

noted above, using the “malicious prosecution” label

for any 1983 claim often generates confusion regard-

ing the constitutional premise of the claim. See supra

Part I.A. But here McDonough has consistently char-

acterized his “malicious prosecution” claim as one

based on a violation of the Fourth Amendment. See,

e.g., Pl.’s Opp’n to Mot. to Dismiss (ECF No. 108) 20.

And the Second Circuit agrees that a “malicious pros-

ecution” claim “essentially alleges a violation of the

plaintiffs right under the Fourth Amendment to be

free from unreasonable seizure.” Lanning v. City of

Glens Falls, 908 F.3d 19, 28 (2d Cir. 2018); see also

Swartz v. Insogna, 704 F.3d 105, 112 (2d Cir. 2013)

(holding that “to be actionable under section 1983

25

there must be a post-arraignment seizure, the claim

being grounded ultimately on the Fourth Amend-

ment’s prohibition of unreasonable seizures”).

McDonough has thus already had an opportunity

to present a claim for a Fourth Amendment violation:

The courts below dismissed that claim as to Smith,

and McDonough continues to prosecute that claim

against the other defendants. It is therefore not only

unfair but also unnecessary for the Court to consider

further Fourth Amendment arguments “this late in

the day.” Clingman v. Beaver, 544 U.S. 581, 598

(2005). The Court should refuse McDonough’s invita-

tion to do so. See Young v. Wells Fargo Bank, N.A.,

717 F.3d 224, 237 (1st Cir. 2013); Ferran v. Town of

Nassau, 11 F.3d 21, 23 (2d Cir.1993).

26

CONCLUSION

For these reasons, the writ should be dismissed as

improvidently granted or the judgment of the Second

Circuit Court of Appeals should be affirmed.

Respectfully submitted,

Office of the Indiana CuRTIS T. HILL, JR.

Attorney General Attorney General

IGC South, Fifth Floor THOMAS M. FISHER*

302 W. Washington St. Solicitor General

Indianapolis, IN 46204. KIANJ. HUDSON

(317) 232-6255 Deputy Solicitor General

Tom.Fisher@atg.in.gov AARON T. CRAFT

JULIA C. PAYNE

*Counsel of Record Deputy Attorneys General

Counsel for Amici States

Dated: April 3, 2019

27

ADDITIONAL COUNSEL

Counsel for Amici States

LESLIE RUTLEDGE DAVE YOST

Attorney General Attorney General

State of Arkansas State of Ohio

JEFF LANDRY ALAN WILSON

Attorney General Attorney General

State of Louisiana State of South Carolina

DOUG PETERSON KEN PAXTON

Attorney General Attorney General

State of Nebraska State of Texas