Case No. 18-485 | 2d Cir.
Preview by Michael Fischer, Online Editor
In September 2009 investigators exposed a plot to influence the outcome of the Working Families Party primary election in Troy, New York through the use of forged absentee ballots and ballot applications. A special prosecutor was appointed to investigate the matter and in January 2011 a grand jury indicted County Board of Elections Commissioner Edward McDonough on 38 counts of felony forgery and 36 counts of felony criminal possession of a forged instrument. McDonough’s first trial ended in a mistrial and he was later acquitted after a second trial on December 21, 2012. Three years later, McDonough filed suit against investigators and the special prosecutor under 42 U.S.C. § 1983 alleging that they had violated his constitutional rights by fabricating evidence against him for use at his trials.
In finding for the defendant, the U.S. District for the District of New York held that although McDonough suffered a liberty deprivation when he was required to appear at his two trials, his Section 1983 claim should be dismissed as untimely. According to the district court, the three year statute of limitations began to run when McDonough learned, or should have learned, of the fabricated evidence, which the court found occurred before his acquittal. The Second Circuit affirmed the district court’s ruling, holding that contrary to the Third, Ninth, and Tenth Circuits, the established precedent of the circuit has held that the statute of limitations begins to run on a fabrication of evidence claim when the plaintiff has reason to know of the injury which is the basis of their § 1983 action. McDonough appealed the Second Circuit’s holding and the Supreme Court granted certiorari on January 11, 2019. The question before the Court is whether the statute of limitations for a § 1983 claim based on fabrication of evidence in criminal proceedings begins to run when those proceedings terminate in the defendant’s favor, as the majority of circuits have held, or whether it begins to run when the defendant becomes aware of the tainted evidence and its improper use, as the U.S. Court of Appeals for the Second Circuit held below.
McDonough argues that the Court should adopt the limitations rule governing the analogous tort of malicious prosecution since the gravamen of his claim is based on the error of the criminal proceedings against him and because he is seeking damages for the period after the legal process. Brief for Petitioner at 14–15, McDonough v. Smith, No. 18-485 (U.S. filed Feb. 25, 2019). Additionally, McDonough urges the Court to adopt favorable termination as an element of his claim, citing precedent for using this standard for malicious prosecution–type claims as a way to avoid collateral attacks on criminal proceedings. See id. at 16–17. Finally, McDonough asserts that since he alleged a continuing violation and not a discrete act, the statute of limitations does not begin to run until the violation ceases. Id.
In response, Respondent argues that regardless of how McDonough characterizes the constitutional right implicated by his fabrication of evidence action, his claim must be barred. Brief for Respondent at 8, McDonough, No. 18-485 (U.S. filed Mar. 27, 2019). Respondent reasons that since a fabrication of evidence claim does not require favorable termination of the proceedings, time accrual is not predicated on a favorable termination for the claimant. Id. at 9. Likewise, Respondent also contends that claims of indictment without probable cause, a constitutional violation under the Fourth Amendment, would be barred by absolute immunity. Id. at 21.