At the end of its last term, the U.S. Supreme Court rendered an important decision concerning the accrual of a §1983 fabrication of evidence claim. In McDonough v. Smith, 139 S. Ct. 2149 (2019), the court held that the statute of limitations on Edward McDonough's claim that he was prosecuted based upon fabricated evidence did not accrue until he was acquitted of the criminal charges. Justice Sonia Sotomayor wrote the opinion for the court, joined by Chief Justice John Roberts, and Justices Ruth Bader Ginsburg, Stephen Breyer, Samuel Alito, and Brett Kavanaugh. Justice Clarence Thomas, dissenting, joined by Justices Elena Kagan and Neil Gorsuch, opined that because the plaintiff's failure to specify which constitutional right he was relying upon "profoundly complicate[d]" the court's inquiry, the court should have dismissed the writ of certiorari as improvidently granted.

Federal court §1983 actions present three major statute of limitations issues: (1) the limitations period; (2) tolling; and (3) accrual. A fourth issue is whether an amended §1983 complaint relates back to the filing of the original complaint. Fed. R. Civ. P. 15(c). Because federal law does not provide a limitations period for §1983 claims, the Supreme Court held, pursuant to 42 U.S.C. §1988(a), that federal courts should apply the state's general personal injury period. Wilson v. Garcia, 471 U.S. 261 (1985). In New York that period is three years. Owens v. Okure, 488 U.S. 235 (1989). Under Owens, this three-year period governs all §1983 actions filed in a federal court in New York.

The Supreme Court has also resolved that when a federal court in a §1983 action adopts a state's limitations period, it must also adopt the state's tolling rules, so long as they do not frustrate §1983's policies of compensating constitutional violations and deterring future violations. See Board of Regents v. Tomanio, 446 U.S. 478, 484 (1980) ("[T]he federal courts were obligated not only to apply the … New York statute of limitations to [plaintiffs'] constitutional claims, but also … the New York rule for tolling the statute of limitations."). The rationale is that a state's tolling rules are an integral part of the limitations period. Id. at 485-86. The court in Tomanio referred to two New York tolling rules, N.Y. CPLR §207 (tolling during a defendant's absence from the State or residence under a false name) and §208 (tolling during period a plaintiff is under a disability, such as infancy, insanity, or imprisonment). The tolling provision of the newly enacted New York Child Victims Act would apply to a §1983 claim based upon child sexual abuse. N.Y. CPLR §208(b) (claims based upon a sexual offense against a person who was under the age of 18 when the abuse allegedly occurred may be brought any time before the victim reaches the age of 55).

While the limitations period and tolling are matters of state law, accrual of §1983 claims is a matter of federal law. McDonough v. Smith, 139 S. Ct. at 2155; Wallace v. Kato, 549 U.S. 384, 388 (2019). The accrual of §1983 claims has frequently created difficulties for the courts and litigators, both because it has not always been clear what accrual standard applies, and because there are often more than one plausible accrual dates.

Over the years, federal courts have very frequently applied the "discovery" accrual rule that a claim accrues "when a plaintiff knew or should have known of the injury that forms the basis of the claim." Fox v. De Soto, 489 F. 3d 227, 233 (6th Cir. 2007) (§1983 action). The plaintiff should have known of his injury when it could have been discovered through reasonable diligence. However, in Wallace v. Kato, supra, and now in McDonough v. Smith, the Supreme Court determined the accrual of §1983 claims without even mentioning the discovery "knew or should have known of the injury" rule. Instead, the court in Wallace and McDonough stated that the "the time at which a §1983 claim accrues 'is a question of federal law;' 'conforming in general to common-law tort principles.'" McDonough, 139 S. Ct. at 2149 (quoting Wallace, 549 U.S. at 388). "That time is presumptively when the plaintiff has a 'complete and present cause of action', [Wallace, 549 U.S. at 388], though the answer is not always so simple." McDonough, 139 S. Ct. at 2155. "[N]ot always so simple" is an understatement. The "complete and present cause of action" formulation smacks of question begging because it fails to provide standards as to when the plaintiff has a complete present cause of action. At least the Supreme Court acknowledged that determining when the plaintiff has a complete and present cause of action "is not always so simple." McDonough, 139 S. Ct. at 2155 (citing, inter alia, Wallace v. Kato, 549 U.S. at 388-91, and n.3). The assumption, apparently, is that the answer is to be found in the common law.

In Wallace v. Kato, Andre Wallace's §1983 complaint alleged that he was arrested on a homicide charge without probable cause in violation of the Fourth Amendment. Did his claim accrue (1) when he was arrested?; (2) when he appeared before the magistrate and was bound over for trial?; (3) when an appeals court reversed his conviction and remanded for a new trial?; or (4) when prosecutors dropped the charges against him? The Supreme Court held that his claim accrued when he appeared before the magistrate and was bound over for trial.

The court in Wallace invoked the closest common law analogy to Wallace's §1983 claim, namely, false imprisonment, which is defined as detention without legal process, and which accrues when process issues. Interestingly, the court held that Wallace's claim accrued when process issued even though it could have been filed earlier when Wallace was arrested. 549 U.S. at 388.

Wallace argued that his claim did not accrue until the state dropped the charges against him. He relied upon the doctrine of Heck v. Humphrey, 512 U.S. 477 (1994), which holds that a §1983 claim that necessarily implicates the validity of a conviction is not cognizable unless the conviction has been overturned. The court rejected Wallace's argument because, when Wallace was bound over for criminal trial, there was no criminal conviction that the §1983 claims could impugn. The court in Wallace ruled that the Heck doctrine does not apply to possible future convictions.

Edward McDonough's §1983 complaint alleged that special prosecutor Youel Smith fabricated evidence against him, used that evidence to obtain a grand jury indictment against him for election related crimes, and presented the fabricated evidence at trial. McDonough's first trial, which lasted over a month, ended in a mistrial. Smith reprosecuted McDonough. The second trial, which also lasted over a month, ended in an acquittal.

McDonough's §1983 complaint sought damages against prosecutor Smith and other officials. The question for the U.S. Supreme Court was when McDonough's fabrication of evidence claim accrued. We can quickly eliminate the possibility that it accrued when Smith allegedly fabricated the evidence because the fabrication of evidence itself did not injure McDonough or violate his constitutional rights. The Second Circuit held that McDonough's claim accrued when (1) the plaintiff learned that the evidence was false and used against him in the criminal proceedings; and (2) he suffered a loss of liberty as a result of the use of the fabricated evidence. McDonough v. Smith, 898 F. 3d 259, 265 (2d Cir. 2018). The Second Circuit treated the plaintiff's claim as a violation of his due process not to be deprived of liberty as a result of government fabrication of evidence. The U.S. Supreme Court "[assume[d] without deciding" that this description of the right and its contours were sound, but did not decide this issue because the court did not grant certiorari on it. 139 S. Ct. at 2155. This was one of an unusually large number of issues the court in McDonough said it was not deciding. So many in fact that, in order to not unduly clutter this column, we have compiled these "open" issues in an Appendix, infra.

Because other circuits held that the limitations period on a §1983 fabrication of evidence claim does not begin to run until favorable termination of the criminal proceedings, the Supreme Court granted certiorari to resolve the circuit conflict. The Supreme Court reversed the Second Circuit. The court in McDonough said that "accrual analysis begins with identifying 'the specific constitutional right' alleged to have been infringed." McDonough, 139 S. Ct. at 2155 (quoting Manuel v. City of Joliet, 137 S. Ct. 911, 920 (2017)). As noted earlier, the court assumed that the right at issue was a due process right not to be deprived of liberty as a result of a government officer's fabrication of evidence. Having identified the constitutional right, the court invoked the closest common law analogy, namely, malicious prosecution. Both a §1983 fabrication of evidence claim and a malicious prosecution claim "challenge the integrity of a prosecution undertaken 'pursuant to legal process.'" 139 S. Ct. at 2156 (quoting Heck v. Humphrey, 512 U.S. at 484). A malicious prosecution claim requires the plaintiff to show that the criminal prosecution terminated in his favor.

McDonough, therefore, could not have asserted his §1983 fabrication of evidence claim prior to the favorable termination of his criminal prosecution. Because his "acquittal was unquestionably a favorable termination, [the court did not] address the broader range of ways a criminal prosecution (as opposed to a conviction) might end favorably to the accused. Cf. Heck 512 U.S. at 486-87…." 139 S. Ct. at 2160 n.10. In Lanning v. City of Glen Falls, 908 F.3d 19 (2d Cir. 2018), the court held that favorable termination on a §1983 malicious prosecution claim is governed by the general common law definition of termination with affirmative indications of innocence. See Martin A. Schwartz, "Second Circuit in 'Lanning' Clarifies Malicious Prosecution," N.Y.L.J. March 4, 2019.

The court's distinction of favorable termination of a criminal prosecution "as opposed to a conviction" with its "Cf." citation to Heck indicates that it does not regard favorable termination of a criminal prosecution for the purpose of malicious prosecution as being identical to the Heck requirement that a conviction first be overturned in order to render a §1983 claim cognizable.

The Heck doctrine did not apply in McDonough because Edward McDonough had not been convicted. 139 S.Ct. at 2159. Nevertheless, the court said that the Heck doctrine "confirm[ed] the strength" of its invocation of malicious prosecution as the closest analogue to McDonough's §1983 fabrication of evidence claim. 139 S. Ct. 2157. In other words, the court invoked the policies underlying the Heck doctrine "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." 139 S. Ct. at 2156-57 (emphasis added). The court referred to Preiser v. Rodriguez, 411 U.S. 475 (1973) and Younger v. Harris, 401 U.S. 37 (1971).

These pragmatic concerns played a large role in the court's decision. The court explained that if the plaintiff's §1983 claim accrued prior to favorable termination it could create the practical problem of the limitations period running out on the §1983 claim while a perhaps lengthy criminal prosecution is going on. "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." 139 S. Ct. at 2158. This second option is "fraught with peril" for the criminal defendant: "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. The second option would "run counter to core principles of federalism, comity, consistency, and judicial economy … . The [favorable termination] accrual rule … respects the autonomy of state courts and avoids these costs to litigants and federal courts." Id. The court thus held that McDonough did not have a complete and present cause of action for loss of liberty until the criminal proceedings terminated in his favor, that is, upon his acquittal.

Although not spelled out explicitly in McDonough, the following three step approach for determining when a §1983 claim accrues can be distilled from the court's opinion:

(1) Identify the specific constitutional right alleged to have been infringed.

(2) Determine the accrual rule for the most analogous common law tort claim.

(3) Consider whether the common law accrual rule accommodates any legitimate pragmatic considerations.

Appendix: The Open Issues

(1) Whether there is a due process right not to be deprived of liberty as a result of a governmental officer's fabrication of evidence. McDonough,139 S. Ct. at 2165.

(2) Although plaintiff "was not incarcerated pending [the criminal trial], he was subject to restrictions on his ability to travel and other 'restraints not shared by the public generally," 139 S. Ct. at 2156 n.4, (citing Justices of Boston Municipal Court v. Lydon, 466 U.S. 294, 301 (1984)). "As the case comes to this Court, it is undisputed that McDonough has pleaded a liberty deprivation." Id. Other than this tentative, narrow, vague ruling, the court did not decide, or provide guidance, as to what is a sufficient restraint on personal freedom to constitute a deprivation of liberty for a fabricated evidence claim.

(3) The court said: "One could imagine a fabricated-evidence claim that does not allege that the violation's consequence was a liberty deprivation occasioned by the criminal proceedings themselves." 139 S. Ct. at 2160. This sounds like a challenge to pretrial detention based on fabricated evidence. Manuel v. City of Joliet, 137 S.Ct. 911 (2017). The court in McDonough said: "To be sure, the argument for adopting a favorable-termination requirement would be weaker in that context." 139 S. Ct. at 2160.

(4) "[B]ecause the Second Circuit understood McDonough's due process claim to allege a deprivation of liberty, we have no occasion to consider the proper handling of a fabricated-evidence claim found on an allegation that the use of fabricated evidence was so egregious as to shock the conscience [County of Sacramento v. Lewis, 523 U.S. 833, 849 (1998)], or caused harms exclusively to 'interests other than interest in freedom from physical restraint' [Albright v. Oliver, 510 U.S. 266, 283 (1994) (Kennedy, J. concurring)]", such as injury to reputation. Thus, the court did not address the accrual of claims rooted in harms independent of a physical liberty deprivation. 139 S. Ct. at 2155 n.2.

(5) The court "has not defined the elements of [a §1983 malicious prosecution claim] … and this case provides no occasion to opine on what the elements of a constitutional malicious prosecution action under §1983 are or how they may or may not differ from those of a fabricated-evidence claim." 139 S. Ct. at 2156 n.3.

(6) Because McDonough's acquittal was obviously a favorable termination, the court did not decide "the broader range of ways a criminal prosecution (as opposed to a conviction) might end favorably to the accused." 139 S. Ct at 2160-61 (citing Cf. Heck, 512 U.S. at 486-87). The court said that it makes "no statement on whether or how the doctrine of absolute [prosecutorial] immunity would apply to McDonough's fabricated-evidence claim." 139 S. Ct. at 2156 n.3.

(7) The court did not address McDonough's "alternative argument that his claim was timely because it alleged a continuing violation." 139 S. Ct. at 2158 n.7.

Martin A. Schwartz is a professor emeritus of law and the author of a multi-volume Section 1983 Litigation treatise published by Wolters Kluwer Law and Business.