Ilann Margalit Maazel

In between the U.S. Supreme Court's blockbuster cases—gerrymandering, the census, and others—the court handed down a couple of important civil rights decisions this term, concerning police fabrication of evidence (McDonough) and police retaliation for protected First Amendment speech (Nieves). In this author's view, the court batted one for two.

Fabrication of Evidence

When does the statute of limitations begin to run for §1983 fabrication of evidence claims? The Supreme Court held that the statute (three years in New York) runs from dismissal of the criminal charge. McDonough v. Smith, No. 18-485, 2019 WL 2527474, at *2-9 (June 20, 2019).

Edward McDonough, a commissioner of the county board of elections, processed ballots that turned out to be forged. Youel Smith was specially appointed to investigate and prosecute the case. McDonough alleged that Smith “falsified affidavits, coached witnesses to lie, and orchestrated a suspect DNA analysis” to secure a grand jury indictment, McDonough's arrest, and his restricted released pending trial. Smith then “presented the allegedly fabricated testimony during th[e] trial,” which resulted in a mistrial, and again in a second trial, which resulted in an acquittal.

The Second Circuit held that McDonough's fabricated-evidence claim accrued “when (1) McDonough learned that the evidence was false and was used against him during the criminal proceedings; and (2) he suffered a loss of liberty as a result of that evidence.” Id. at *3.

Reversing, the Supreme Court analogized fabrication claims to malicious prosecution claims, for which statutes of limitations run upon dismissal of the criminal charge. “At bottom, both claims challenge the integrity of criminal prosecutions undertaken pursuant to legal process.” Id. at *4. For both claims, the “favorable-termination requirement is rooted in pragmatic concerns with avoiding parallel criminal and civil litigation over the same subject matter and the related possibility of conflicting civil and criminal judgments.” Id. at *5.

The court also noted the unfortunate “consequences that would follow from the Second Circuit's approach, which would impose a ticking limitations clock on criminal defendants as soon as they become aware that fabricated evidence has been used against them … . A significant number of criminal defendants could face an untenable choice between (1) letting their claims expire and (2) filing a civil suit against the very person who is in the midst of prosecuting them. The first option is obviously undesirable, but from a criminal defendant's perspective the latter course, too, is fraught with peril: He risks tipping his hand as to his defense strategy, undermining his privilege against self-incrimination, and taking on discovery obligations not required in the criminal context.” Id. at *6.

This decision is of course a great relief for victims of police fabrication. It was unrealistic to believe that criminal defendants would sue police or prosecutors while their criminal cases were ongoing. The net result of the Second Circuit's rule would have been to squash most, perhaps almost all, fabrication claims. Happily, the Supreme Court prevented that outcome.

Police Retaliation

The Supreme Court was less successful in Nieves v. Bartlett, 139 S. Ct. 1715 (2019), a case of bad facts making bad law. Russell Bartlett alleged that two police officers “retaliated against him for his protected First Amendment speech by arresting him for disorderly conduct and resisting arrest. The officers had probable cause to arrest Bartlett.” Id. at 1720. Faced with thin evidence of retaliation, the district court dismissed the claim on summary judgment.

To prevail on a First Amendment retaliation claim, a plaintiff must establish a “causal connection” between defendant's “retaliatory animus” and plaintiff's “subsequent injury.” Writing for the court, Chief Justice John Roberts Jr. reasoned that, “because probable cause speaks to the objective reasonableness of an arrest … its absence will … generally provide weighty evidence that the officer's animus caused the arrest, whereas the presence of probable cause will suggest the opposite.” Id. at 1724 (emphasis added).

The court then stated: “it is particularly difficult to determine whether the adverse government action was caused by the officer's malice or the plaintiff's potentially criminal conduct.” Id. As a result, the court elevated evidence to be considered by the fact finder (the presence or absence of probable cause) into a legal rule: “[t]he plaintiff pressing a retaliatory arrest claim must plead and prove the absence of probable cause for the arrest.” Id.

It is hard to understand this ruling. Probable cause is a Fourth Amendment standard. Retaliatory intent is a First Amendment standard. Normally we do not graft elements from one constitutional claim into another.

The court then noted that “[i]n the Fourth Amendment context … we have almost uniformly rejected invitations to probe subjective intent.” Id. “To ensure that officers may go about their work without undue apprehension of being sued, we generally review their conduct under objective standards of reasonableness. … A particular officer's state of mind is simply irrelevant, and it provides no basis for invalidating an arrest.” Id. at 1725.

Again, this is true in the Fourth Amendment context, not the First Amendment context. The Fourth Amendment focuses on objective reasonableness, the First Amendment on defendant's intent. Different claims, different tests.

The court also stated that, absent a probable cause requirement, “the constitutionality of an arrest will “vary from place to place and from time to time” depending on the personal motives of individual officers. Id. at 1725. That, of course, is the point. If an officer arrests you for saying “Down with Donald Trump!” that violates the First Amendment, even if you also happen to be jaywalking.

The court also noted that, without a no-probable-cause requirement, “officers would simply minimize their communication during arrests to avoid having their words scrutinized for hints of improper motive—a result that would leave everyone worse off.” Id. But by the same rationale, we should require lack of probable cause for arrests made on the basis of race; otherwise, officers would “minimize their [racist comments] during arrests to avoid having their words scrutinized for hints of improper [racism].” No one has suggested that officers may target people based on their race, simply because the officers have probable cause. The Equal Protection Clause and the Fourth Amendment serve different interests and have different tests. Just so for the First Amendment.

Perhaps realizing problems with its ruling, the court created an exception to its new rule: “Although probable cause should generally defeat a retaliatory arrest claim, a narrow qualification is warranted for circumstances where officers have probable cause to make arrests, but typically exercise their discretion not to do so. … For example, at many intersections, jaywalking is endemic but rarely results in arrest. If an individual who has been vocally complaining about police conduct is arrested for jaywalking at such an intersection, it would seem insufficiently protective of First Amendment rights to dismiss the individual's retaliatory arrest claim on the ground that there was undoubted probable cause for the arrest.” Thus, “the no-probable-cause requirement should not apply when a plaintiff presents objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.” Id. at 1729.

Imagine, then, two scenarios: (1) A lone jaywalker cries “Down with Trump!” A Trump-loving police officer retaliates by arresting him. The officer has probable cause. The jaywalker therefore has no First Amendment claim. (2) One of many jaywalkers cries “Down with Trump!” A Trump-loving police officer retaliates by arresting him. The officer has probable cause. But the jaywalker has objective evidence that other, silent jaywalkers were not arrested. This jaywalker has a First Amendment claim.

The moral? If you're protesting while jaywalking, make sure you are not alone.

As Justice Sonia Sotomayor wrote in dissent, the court's rule is “an unfounded exercise in hybridizing two different constitutional protections. The result is a Frankenstein-like constitutional tort that may do more harm than good.” Id. at 1738.

It will be for the district courts, in the first instance, to tame this First/Fourth Amendment monster.

Happy summer!

Ilann M. Maazel is a partner at Emery Celli Brinckerhoff & Abady.