published articles

"A New Cause of Action Exists Under SEC. 1983"

PUBLISHED MARCH 9TH, 2015 _ N.J. Law Journal 219 N.J.L.J. 810

In certain cases, plaintiffs can file a claim for violation of substantive due process for fabrication or withholding of evidence

3/9/2015 A New Cause of Action Exists Under sect 19831 New Jersey Law Journal

In certain cases, plaintiffs can file a claim for violation of substantive due process for fabrication or withholding of evidence

Stephen Hankin, New Jersey Law Journal

March 4,2015

Under state law, in false arrest, false imprisonment and malicious prosecution cases, plaintiffs counsel faces defeat by the establishment of probable cause. However, under the Third Circuit's recent decision in Halsey v. Pfeiffer, 750 F.3d 273 (3d Cir. 2014), where fabrication or withholding of evidence has a meaningful connection to a prosecution, conviction and incarceration, an independent cause of action now exists under ß 1983 for deprivation of substantive due process under the Fourteenth Amendment, despite the existence of probable cause.

In so holding, the court joined a number of other circuits. See Zahreyv. Coffey, 221 F.3d 342, 344 (2d Cir. 2000); Washington v. Wilmore, 407 F.3d 274, 282 (4th dr. 2005); Castellano v. Frogozo, 352 F.3d 939, 955 (5th Cir. 2003); Gregory v. City of Louisville, 444 F.3d 725, 737 (6th Cir. 2006); Buckleyv. Fitzsimmons, 20 F.3d 789, 797 (7th dr. 1994); Moran v. Clarke, 296 F.3d 638, 646-647 (8th Cir.2002,Devereaux v. Abbey, 263 F.3d 1070, 1074-75 (9th Cir. 2001); Pierce v. Gilchrist, 359 F.3d 1279, 1285 (10th dr. 2004); Rowe v. City of Fort Lauderdale, 279 F.3d 1271, 1281 (11th Cir. 2002); see also Riley v. Hessenflow, No. 11-04253-CV-C-NKL (W.D.Mo. Jan. 10, 2013).

Not to be forgotten is that in order to recover damages under ß1983, the conviction or sentence must be reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such a determination or called into question by the issuance of a writ of habeas corpus. Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2009). The elimination of probable cause as a defense is quite critical because the government can often demonstrate sufficient undisputed facts to warrant summary judgment disposition.

The Civil Rights Act of 1871, 42 U.S.C. ß 1983, provides that:

Every person who, under color of [state law], subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured ....

To succeed in a ß 1983 claim, a plaintiff must prove two essential elements: "(1) that the conduct complained of was committed by a person acting under the color of state law; and (2) that the conduct deprived the plaintiff of rights, privileges, or immunities secured by the Constitution or laws of the United States." Schneyder v. Smith, 653 F.3d 313, 319 (3d Cir. 2011). This article focuses upon the second element in the context of whether the subject conduct violates Fourth or Fourteenth Amendment rights.

In Halsey, the plaintiff was charged, convicted and imprisoned based upon police officers' fabrication of evidence. The prosecutor instrumental in the initiation of the criminal case acknowledged that Halsey's falsified confession contributed to his decision to charge the plaintiff, who was sentenced to prison for two life terms. After 22 years in jail he was released because his innocence was established "beyond all doubt." His 42 U.S.C. ß 1983 and state-law based claims followed.

On appeal, one question presented was whether the police officers "violate[d] [the plaintiff's] constitutional right to due process under the Fourteenth Amendment by fabricating evidence to justify prosecution," and, if so, whether that fabrication was actionable under ß 1983 as a stand-alone cause of action or, instead, was merely relevant to the existence of probable cause in Halsey's claim for malicious prosecution. The defendants contended that "a state actor by fabricating evidence violates only the Fourth Amendment and its protection against unlawful seizures, and the violation is redressable ,., only by bringing a case for malicious prosecution." In reversing the district court and concluding that a separate fabrication claim existed, the court reasoned:

[T]he parties disagree over the identification of the constitutional right implicated in a fabrication case. This identification can be important. Appellees maintain that a state actor by fabricating evidence violates only the Fourth Amendment and its protection against unlawful seizures, and the violation is redressable, as we have indicated that they have asserted, only by bringing a case for malicious prosecution. Halsey, however, grounds the right to be free from fabricated evidence on the Fourteenth Amendment's guarantee of due process of law." Id. at 290-91. [emphasis added] [internal citations omitted]

"We emphatically reject the notion that due process of law permits the police to frame suspects. Indeed, we think it self-evident that 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. Requiring that a plaintiff join a fabrication claim with a malicious prosecution claim would come close to making a mockery of the notion that Americans enjoy the protection of due process of the law and fundamental justice." Id. at 293. [emphasis added] [internal citations omitted]

Halsey fails to distinguish the nuances between a seizure under the Fourth Amendment and a due process violation under the Fourteenth Amendment, leaving open just how much an arrested defendant must endure before a stand-alone, substantive due process claim accrues. For example, must a lengthy pre- or post-trial detention, conviction and imprisonment occur, or are arrest and submission to arraignment and/or other pretrial procedures sufficient? Put another way, the question remains just exactly when an unlawful Fourth Amendment seizure ends and a substantive due process claim begins.

False evidence only violates a criminal defendant's due process rights if it is "used to deprive the defendant of... liberty in some way." Whitlock v. Brueggeman, 682 F.3d 567, 580 (7th dr. 2012) ("We have consistently held that a police officer who manufactures false evidence against a criminal defendant violates due process if that evidence is later used to deprive the defendant of... liberty in some way.").

Indeed, "[l]iberty from bodily restraint always has been recognized as the core of the liberty protected by Due Process Clause ...." Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1 , 18 (1979). Even "the right to release from initially lawful detention is based upon the substantive component of the Due Process Clause, rather than the Fourth Amendment." Golberg v. Hennepin County, 417 F.3d 808, 811 (8th Cir. 2005).

Post-arrest detention, and the criminal process such as bail, arraignment, a probable cause hearing, discovery and all of the concerns which are the natural result of awaiting trial or dismissal, are all stigmatizing, emotionally-scarring events, no matter what the length of post-arrest detention. "The Fourteenth Amendment... include[s] liberty of the mind as well as liberty of action." Palko v. State of Connecticut, 302 U.S. 319, 327 (1937).

The protection against the loss of one's liberty, no matter how fleeting, is a Fourteenth Amendment safeguard which cannot be trivialized based upon how long the loss endures. Instead, the length of deprivation is a matter a jury must determine in the context of damages. See Raysor v. Port Authority of New York and New Jersey, 768 F.2d 34, 39 (2d Cir. 1985) (where there is a deprivation of liberty, even for several hours, and the deprivation is unlawful, a plaintiff is entitled to compensatory, not merely nominal damages). U.S. v. Marion, 404 U.S. 307, 320 (1971), explains that "[a]rrest is a public act that may seriously interfere with the defendant's liberty, whether he is free on bail or not, and that may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends." [Emphasis added.]

It thus seems highly probable that despite the existence of probable cause, an independent cause of action exists under ß 1983 where evidence fabrication or withholding is a material reason for an arrest and subjection to the criminal process even in the absence of a lengthy pretrial detention, trial, conviction or incarceration. Practitioners are cautioned to seek such relief in federal court, which is more sensitive to substantive due process claims than the New Jersey judiciary, see Rivkin v. Dover Tp. Rent Leveling Board, 143 N.J. 352 (1996), and in pending cases to promptly seek leave to amend.ï

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Hankin is a partner with Hankin, Sandman, Palladino & Weintrob in Atlantic City, New Jersey.

Stephen Hankin, New Jersey Law Journal