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Thursday, April 18, 2019

SCOTUS argument recap: Too many metaphors

My SCOTUSBlog recap of Wednesday's argument in McDonough v. Smith is now up. This was the most metaphorical argument I have read, with everyone returning to heads spinning and constitutional rights swimming to and from conclusions (this all seemed to appeal to Justice Gorsuch).

It appears that the petitioner is going to win and that the Court will find the § 1983 claim timely because filed within three years of the favorable termination of criminal proceedings. Counsel for respondent had a rough time. He declined to dispute Justice Ginsburg's contention that the claim is one for procedural (rather than substantive) due process, triggering a suggestion from Justice Sotomayor that he had given the game away. And he received an avalanche of questions--including from the Chief and Justice Kavanaugh--showing sympathy for the argument that favorable termination should be required for policy reasons of avoiding collapse and confusion between criminal and civil proceedings.

The real question is going to be how the Court gets there--whether by focusing on the elements of a § 1983 claim (as the United States urges) or at the level of judicial policy (as petitioner urges). And what happens on remand, where the government argues that, while timely, the claim is barred by prosecutorial immunity.

Posted by Howard Wasserman on April 18, 2019 at 12:00 PM in Civil Procedure, Howard Wasserman, Judicial Process, Law and Politics | Permalink


Thanks for the comment, Suzanna. I read that brief in the course of covering the case and thought it was spot-on as a matter of judicial control of its procedures and jurisdiction.

Posted by: Howard Wasserman | Apr 22, 2019 1:13:56 PM

The Court doesn't need to get into the question of whether favorable termination is an element of the tort (although you wouldn't know that from the oral argument!). This is a pure question of sequencing state and federal challenges to government behavior in criminal proceedings, which the Court has answered many times before in other contexts. The rules from Younger v. Harris and Heck v. Humphrey say that you can challenge what the government does (or threatens to do) *before* the state criminal proceedings start, or *after* a favorable termination of state proceedings, but not in between. Given those rules, the Court should hold that claims challenging criminal proceedings -- regardless of what tort is alleged -- do not accrue until favorable termination, even though favorable termination might not be an element. (Full disclosure: I signed onto, and helped draft, an amicus brief making this argument. It appears that the Justices either haven't read it or weren't persuaded!)

Posted by: Suzanna Sherry | Apr 22, 2019 10:40:31 AM

I agree this is a weird case, but for different reasons. Supposing this tort exists, favourable termination of the underlying case can't be an element. Suppose I get charged with a crime, and the prosecutor makes up evidence that denies me bail (wrongfully denying my liberty). That's a rock-solid case. Why should I be barred from bringing suit if I am later convicted of the crime on other evidence? That's very different from malicious prosecution, where 1) prosecution, by definition, continues until termination 2) without favourable termination there's no harm 3) the rule functions as a collateral bar.

And of course the amici backing McDonough would be firmly in Smith's corner on this point in any other circumstances. This is why Katyal is so cagey about the elements of the tort or its source - he wants the statute of limitations to run from a favourable termination, but a favourable termination not to be an element of the tort. His attempts to have it both ways on that question - or duck it entirely - are very unconvincing. Where does the Court get the authority to adjust the statute of limitations on policy grounds? Why does this tort "borrow" a limitation period - but nothing else! - from another tort? As Justice Gorsuch adroitly put it:

"Plaintiffs in [petitioner's] position normally would say [favourable termination is] not part of the claim because that's a higher burden. And it's only because of the happenstance here that we want a longer limitations period that we want to tack it in and create this rather bespoke tort that we cannot identify where it swims from or to."

Meanwhile the feds swoop in as amicus to argue - cynically - that favourable termination is an element of the tort! While it would serve the Brennan Centre etc right if they got a Pyrrhic victory with the court adopting the SG's theory, it would serve justice ill.

Posted by: Salemicus | Apr 18, 2019 5:32:59 PM

Very weired case. Really astonishing. I don't get it simply. Suppose that one defendant, while prosecuted ( ongoing ) would file civil action based on 1983 claim. Then what? if the civil action would be terminated before the criminal one, then, the immediate meaning of it, is that the criminal proceedings must be stopped ( since based on fabricated evidences like in this case ). So, the right mechanism, should be a " secondary trial " where only the issue of fabrication of such is reviewed, and then, in accordance, the course should be set up, towards : civil action, or criminal one or both , in accordance with the findings of the " secondary trial ".

Moreover : if the criminal case, has terminated,and the acquittal is based upon the findings that evidences were fabricated, the prosecutor then, can't enjoy in noway immunity. For the case is over. His prosecutorial work is also over. The finding is one of the court of law. That is to say, that the prosecution had been clearly and purely malicious. And we have more than prima facie evidence for it. Not for that immunity is meant. Meant for calmly with no interference or deterrence, doing the job. Then, reasonable or faithful recklessness can be tolerated. But, when clearly malicious, and to such degree of fabricating evidence, it is unthinkable.


Posted by: El roam | Apr 18, 2019 1:59:48 PM

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