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Justices Make It Easier to Sue Bad Prosecutors, Police (2)

June 20, 2019, 2:15 PMUpdated: June 20, 2019, 8:49 PM

The justices June 20 gave plaintiffs more time to sue prosecutors and police who fabricate evidence in criminal trials.

The Supreme Court ruled that the clock to file such a claim doesn’t begin to run until the trial ends in the defendant’s favor—not, as the lower court held, when the evidence is first used against the defendant.

“It’s not uncommon that there are claims of withholding of evidence or fabrication of evidence,” said Karyn Bass Ehler, the former chief of the Illinois Attorney General’s civil rights bureau. Bass Ehler, now with Grant & Eisenhofer in Chicago, called the court’s decision a “victory for civil rights.”

Such a ruling will help rein in “rampant” evidence fabrication, Neal Katyal of Hogan Lovells in Washington told the justices during arguments on April 17.

Katyal represented Edward G. McDonough, a former Democratic commissioner for a local board of elections who was charged and eventually acquitted of forging absentee ballots during a primary election.

McDonough sued the special prosecutor, Youel Smith, who was appointed to investigate and prosecute the voting fraud, for allegedly making up evidence to charge and unsuccessfully try McDonough.

Justice Sonia Sotomayor authored the majority opinion and was joined by Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Stephen Breyer, Samuel Alito and Brett Kavanaugh.

The U.S. Court of Appeals for the Second Circuit held that McDonough’s limitations period for his fabricated-evidence claim began to run when McDonough learned the evidence was false and was used against him during criminal proceedings and when he suffered a loss of liberty as a result.

Sotomayor agreed with McDonough that the malicious prosecution common-law tort is the most analogous to his situation. That type of claim accrues only once the criminal proceedings have resolved in the plaintiff’s favor: In McDonough’s case, when he was acquitted.

Following the Second Circuit’s approach—in which the plaintiff has a fabricated-evidence claim as soon as he can show the evidence was used against him—would impose a “ticking limitations clock” on criminal defendants, the court said.

“Such a rule would create practical problems in jurisdictions where prosecutions regularly last nearly as long as—or even longer than—the relevant civil limitations period,” Sotomayor wrote.

Criminal defendants, under the lower court’s ruling, would “face an untenable choice” between letting their claims expire and filing a civil suit against the person who is prosecuting them, she said.

Doing the latter could anger the prosecutor or give away the plaintiff’s criminal defense, said Sam Callahan, an associate at Arnold & Porter in Washington, who filed an amicus brief on behalf of McDonough.

Callahan said he and his clients were “very happy to see a court that’s aware of how the practical implications of the Second Circuit’s ruling would have hurt criminal defendants.”

The majority disagreed with Smith, who suggested that stays and ad hoc abstention are enough to avoid problems arising from two-track litigation, saying that such methods would clog the dockets without any clear advantage.

“And while the risk of foreclosing certain claims and the potential incentive effects that Smith identifies could be valid considerations in other contexts, they do not overcome the greater danger that plaintiffs will be deterred under Smith’s theory from suing for redress of egregious misconduct,” Sotomayor wrote.

Justice Clarence Thomas filed a dissenting opinion, in which Justices Elena Kagan and Neil Gorsuch joined.

They wrote that they should have dismissed the case as improvidently granted because the constitutional basis for McDonough’s claim was unclear and the court was therefore unable to confirm he had a constitutional claim at all.

“[I]t would be both logical and prudent to address that antecedent question before addressing the statute of limitations for that claim,” the dissent said.

Indiana Solicitor General Thomas Fisher said he was concerned the court dealt with accrual without first deciding if there’s a proper constitutional claim on the part of McDonough. Fisher, who filed an amicus brief on behalf of Smith, said he agreed with the dissent in that the case was improvidently granted and should have been dismissed.

“It’s not that you can’t ever have a constitutional deprivation when someone mishandles or misuses evidence,” Fisher said. “But you need to define the contours of the claim in a constitutional sense.”

The case is McDonough v. Smith, U.S., No. 18-485, reversed and remanded 6/20/19.

Jordan Rubin contributed to this report.

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To contact the reporters on this story: Jake Holland in Washington at jholland@bloomberglaw.com; Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editors responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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