McDonough v. Smith: Favorable Termination and the Confusing Civil Law of Wrongful Convictions

Does a plaintiff suing police for falsifying evidence against him in a criminal case need to show that he was officially exonerated in that case? The answer to that question, like too many other important questions affecting people’s ability to be compensated for wrongful convictions, is: No one really knows.

Two kinds of police misconduct are common in wrongful conviction cases: First, hiding evidence favorable to the defense, or Brady material; second, fabricating evidence, which can mean coercing a suspect or witness into making a false statement or inventing a statement that a witness never made.

It’s well established that both violate the Constitution. But when exonerees try to recover damages for the years or decades they spent in prison as a result of such misconduct, the law becomes surprisingly murky. For example, the Second Circuit has repeatedly dodged the question whether a police officer needs to violate Brady intentionally to be held liable for it. E.g., Bellamy v. City of New York, 914 F.3d 727, 751 n.23 (2d Cir. 2019).

Practically speaking, these two areas—civil Brady and civil fabrication of evidence—amount to the civil law of wrongful convictions. (Malicious prosecution claims, in contrast, are much more common and are mostly brought by people who had the charges against them dropped or were acquitted.) The Supreme Court made its first foray into the civil law of wrongful convictions last year in McDonough v. Smith, 139 S.Ct. 2149 (2019). It seems to have made an already confusing situation still more so.

McDonough concerns the statute of limitations for fabrication claims. At odds with nine other circuits, the Second Circuit had held that such claims accrue as soon as fabricated evidence is used to deprive the plaintiff of liberty. That would mean that, in most cases, the fabrication claim would accrue while criminal proceedings were ongoing. The Supreme Court correctly found this approach inconsistent with the foundational principle known as the “Heck bar,” which requires challenging the validity of a conviction in criminal or habeas proceedings, not in a civil case. See Heck v. Humphrey, 512 U.S. 477 (1994).

So the Supreme Court reversed in McDonough, holding that a fabrication claim accrues only once criminal charges resolve in the plaintiff’s favor. By its own terms, that’s the right result. The problem is that “favorable termination” isn’t—or at least wasn’t previously—an element of a civil fabrication claim.

It is an element of a malicious prosecution claim, and a vexing one at that, often prompting hairsplitting over sparse comments on the record at the dismissal hearing. See, e.g., Genovese v. County of Suffolk, 128 F. Supp. 3d 661, 673-74 (E.D.N.Y. 2015) (considering colloquy between prosecution and defense counsel and concluding that a factual dispute existed for the jury to resolve about why the charges were dismissed). A few words by the prosecutor can make all the difference in deciding whether a dismissal was suggestive enough of innocence to be considered “favorable.”

After McDonough, police and municipal defendants are now arguing that “favorable termination” is an element of fabrication claims, too. This argument overreads McDonough, which says nothing of the sort. And it’s wrong on the merits for at least two reasons.

First, it overlooks the doctrinal differences between the two kinds of claims. Malicious prosecution arises from the Fourth Amendment’s protection against unreasonable seizure, Lanning v. City of Glens Falls, 908 F.3d 19, 28 (2d Cir. 2019), while fabrication claims, like Brady claims, arise from the Due Process Clause’s guarantee of a fair trial, Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 130 (2d Cir. 1997).

This doctrinal difference matters. “Favorable termination” makes sense in the Fourth Amendment malicious prosecution context. To show that he was subject to an unreasonable seizure, as the Fourth Amendment forbids, the plaintiff effectively needs to show that he was prosecuted without an objectively reasonable basis. “Favorable termination” does not make sense in the Fourteenth Amendment fair trial context because even a guilty person can be deprived of a fair trial as long as he had a reasonable prospect of a better outcome absent the misconduct. See Poventud v. City of New York, 750 F.3d 121, 134-35 (2d Cir. 2014).

Second, the argument that “favorable termination” must be an element of a fabrication claim because the claim accrues upon “favorable termination” is illogical. An accrual rule and an element are very different things. The elements derive from the substantive law that proscribes the defendant’s conduct, and the plaintiff must prove them in every case. An accrual rule is a public policy judgment balancing the interests of fairness and repose in resolving old claims. It never even comes up unless the defendant raises a facially valid statute of limitations defense.

For instance, many jurisdictions, including New York, have a “discovery rule” for the accrual of claims ranging from fraud to medical malpractice arising from the insertion of a foreign object into one’s body. See, e.g., CPLR 213(8), 214-c. When those claims accrue depends on when the plaintiff discovers—that is, knows or reasonably should know—of his injury. But discovery of one’s own injury is not an element of any of those claims, even as it may be a practical prerequisite to consulting a lawyer and filing suit.

Despite its illogic, some courts have expressed openness to the post-McDonough argument that “favorable termination” is now an element of fabrication. E.g., Goldring v. Donawa, No. 16-CV-5651, 2019 WL 4535507 (E.D.N.Y. Sept. 19, 2019). Others have rejected it. E.g., Wellner v. City of New York, 393 F. Supp. 3d 388 (S.D.N.Y. 2019). One has made the interesting suggestion that “favorable termination” means something different for fabrication than for malicious prosecution. Ross v. City of New York, No. 17-CV-3505, 2019 WL 4805147, at *8 (E.D.N.Y. Sept. 30, 2019). In any event, the Supreme Court’s need to correct the Second Circuit’s statute of limitations error has destabilized the elements of the claim.

Few things could be more offensive to the Constitution than wrongly losing your freedom for years or decades because a police officer hid evidence of innocence or made up evidence of guilt. Litigants deserve more clarity from courts in these highly consequential cases. And the ability to get justice shouldn’t turn on how the prosecutor decides to spin the reasons for dismissal.

Reprinted with permission from the April 23, 2020 edition of the New York Law Journal © 2020 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited; contact 877-257-3382 or reprints@alm.com.