First, I enjoyed the opportunity to participate in this week's conference call. Even though I did not say anything (even after 28 years of practice "first times" can still be a little intimidating) I gained some good insights. I especially enjoyed the discussion concerning using the disciplinary rules to try and thwart the practice of plaintiffs using open records requests to do an end run around limitations on the scope of discovery in civil suits. Second, I wanted to raise an issue with the group. In 1994 the Supreme Court of the United States decided the case of Albright v. Oliver. 510 U.S. 266 (1994). The opinion was, admittedly, splintered. It seems, however, that a majority of the justices opined that a claim for malicious prosecution, without more, does not state a constitutional claim for violation of substantive due process. See Albright, 510 U.S. at 268 (plurality of court stating that there is no "substantive right under the Due Process Clause of the Fourteenth Amendment to be free from criminal prosecution except upon probable cause"). Since Albright, the circuit courts, including the Fifth Circuit (where I practice) have grappled with the question of what constitutes more, which was left unaddressed in Albright. For example, in 2003 the United States Court of Appeals for the Fifth Circuit (my home circuit) decided the case of Castellano v. Fragozo, and stated that Causing charges to be filed without probable cause will not without more violate the Constitution. . . . It is equally apparent that additional government acts that may attend the initiation of a criminal charge could give rise to claims of constitutional deprivation. The initiation of criminal charges without probable cause may set in force events that run afoul of explicit constitutional protection - the Fourth Amendment if the accused is seized and arrested, for example, or other constitutionally secured rights if a case is pursued further. 352 F.3d 939, 953 (5th Cir. 2003) (en banc). Of course, as any lawyer who has been out of law school longer than three weeks would do, I wondered what "additional government acts" would turn the initiation of a criminal charge without probable cause into a constitutional violation, what other "constitutionally secured rights" would be implicated "if a case is pursued further," and how much further would the case need to be pursued to give rise to a constitutional violation. Upon reflection, I felt very secure that the en banc panel's reasoning in Castellano stood for the proposition that a plaintiff could not bring a § 1983 action against a municipality by alleging the municipality's employees (not necessarily law enforcement employees) acting under color of state law made false accusations to a police officer in order to get a person charged with a crime unless the charge resulted in a conviction or an arrest (and, of course, alleging the Monell requirements). Recently, the Fifth Circuit took a sledge hammer to my sense of security. In Cole v. Carson, a three judge panel found that where police intentionally fabricate evidence and successfully get a person falsely charged with a felony, and the Fourth Amendment is unavailing (i.e., no seizure), there could be a due process violation. 802 F.3d 752 (5th Cir. 2015). This position appears to be in accord with the Second, Eighth, Ninth and Tenth Circuits. Ricciuti v. New York City Transit Auth., 124 F.3d 123, 129-30 (2nd Cir. 1997) ("When a police officer creates false information likely to influence a jury's decision and forwards that information to prosecutors, he violates the accused's constitutional right to a fair trial, and the harm occasioned by such an unconscionable action is redressable in an action for damages under 42 U.S.C. § 1983."); Moran v. Clarke, 296 F.3d 638, 644-45, 647 (8th Cir. 2002 (en banc) (court finding that a substantive due process claim should not have been denied in a judgment as a matter of law because the plaintiff presented evidence that he was intentionally set up); Devereaux v. Abbey, 263 F.3d 1070, 1074-75 (9th Cir. 2001) (en banc) (court stating that "there is a clearly established constitutional due process right not to be subjected to criminal charges on the basis of false evidence that was deliberately fabricated by the government, . . .."); Pierce v. Gilchrist, 359 F.3d 1279, 1281-82, 1284 (10th Cir. 2004) (court upholding a district court's refusal to dismiss on qualified immunity grounds based on the use of false evidence to "induce prosecutors to initiate an unwarranted prosecution," and stating that it saw no "reason to distinguish between falsifying evidence to facilitate a wrongful arrest and engaging in the same conduct several days later to induce prosecutors to initiate an unwarranted prosecution."). The Seventh Circuit appears to point the other way. Saunders-El v. Rohde, 778 F.3d 556, 560-61 (7th Cir. 2015) (court holding that a police officer does not violate an acquitted defendant's due process rights when he fabricates evidence because the constitutional claim is foreclosed by the plaintiff's acquittal). I find it hard to believe, but I have a case where this issue is front and center. In this case plaintiff was arrested in 2012 for a felony. The plaintiff spent one night in jail before being released on bond. The grand jury indicted. Over a year later the grand jury issued another indictment for a second felony offense. The plaintiff's previous bail was deemed sufficient to include the second offense and she was not arrested a second time. She was subsequently acquitted on both charges. She has brought two claims pursuant to 42 U.S.C. § 1983 alleging that employees of the municipality lied to police officers in order to have the plaintiff charged with a felony offense and lied again in order to have the plaintiff charged with a second felony offense. The plaintiff made the requisite Monell assertions and sued the municipality and the employees; the plaintiff has not sued any law enforcement officers for swearing out a false probable cause affidavit, nor has she sued the state (the district attorney is an agent of the state) for procuring her indictment and going forward with the prosecution. I filed a motion to dismiss based on the following arguments. First, her claim arising out of her arrest and the first charge in the indictment is time-barred because she failed to bring that claim within the statute of limitations (two years from the date of her arrest). Second, her claim arising out of the second charge does not state a constitutional violation because (1) she was not seized as a result of this indictment, and (2) any due process claim was foreclosed when she was acquitted. Admittedly, she could bring a state law claim for malicious prosecution, but that claim could only be brought against the individual defendants (the municipality is immune from suit for intentional torts). If her pending federal claims are dismissed there are no remaining claims; if the plaintiff argues that she should be permitted to amend and assert a state law claim for malicious prosecution I will argue that the Court should dismiss her suit and permit her to bring any state law claims in state court. Unlike an amendment permitting her to add a state law malicious prosecution in federal court (which might be timely because of the relation back doctrine), if she brings a new action in state court based on malicious prosecution it would probably be time-barred (the statute of limitations for malicious prosecution is one year from the date of her acquittal. Additionally, the tolling provision of 28 U.S.C. § 1367(d) is not applicable because, at the time of dismissal, the plaintiff had no state law claims pending before the Court.) Any thoughts on who will ultimately be found right - the Second, Fifth, Eighth, Ninth and Tenth Circuits or the Seventh Circuit? I would appreciate any thoughts or insights you might have. Thank you. M. Michael Meyer Assistant City Attorney City of Corpus Christi P.O. 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