Evidence fabrication claim is revived on appeal as Court of Appeals says trial court misled the jury

This case implicates an unsettled area of constitutional law involving the fabrication of evidence against criminal defendants and when they can sue the police for that misconduct. The Court of Appeals holds the the plaintiff may sue the police because the criminal charge against him was dismissed in criminal court as facially insufficient, and the prosecutor ended up abandoning the charge altogether.

The case is Ashley v. City of New York, issued on March 26. The Second Circuit has long recognized the right to bring a fabrication of evidence claim. It has never held that the plaintiff must show the charges against him terminated in his favor, a necessary requirement for the different claim of malicious prosecution. But a recent Supreme Court case, McDonough v. Smith, 139 S.Ct. 2149 (2019), contains language that municipal defendants now think added the malicious prosecution-style "termination in favor of the accused" element to fabrication claims. 

In this case, the plaintiff's criminal case ended after the criminal court found the charges against the plaintiff insufficient and the prosecutor did not persist in pursuing the charge of marijuana possession. The city argues this dismissal was not a "favorable termination" because the prosecution's failure to proceed with the charge does not imply a lack of reasonable grounds to prosecute him. That language draws from "favorable termination" cases in our jurisdiction.

The Court of Appeals revives the fabrication claim following the district court dismissal without determining whether McDonough changes the landscape in adding a "favorable termination" element to these claims. Instead, it finds that, even if there is such a requirement, the jury may find the charges did terminate in plaintiff's favor because, while it was dismissed for facial insufficiency, the criminal court was super-critical of the charge, the prosecutor's second attempt at filing a clean charge was rejected, and then it abandoned the charge altogether. While facial insufficiency dismissals are not usually "favorable terminations," the problem with the prosecution's case, the Court of Appeals (Calabresi, Carney and Katzmann) says, is that the criminal court did not think the prosecution had any case against the plaintiff in the first place. 

The fabrication case originally went to trial in the Southern District. Plaintiff lost the jury verdict. But the Court of Appeals revives the claim and remands for a new trial because the jury charge was improper. The trial court told the jury that, in determining whether the police had a constitutional or fabricated basis to  arrest plaintiff for drug possession, it told the jury that paperwork errors, or mere mistakes by a police officer in making a written record, does not give rise to a constitutional violation. This was wrong, the appellate court says, because it could cause the jury to mistakenly believe "that fabrication turns in part of the severity of the error rather than simply the knowing falsity of the statement" used against the plaintiff. Since a fabrication claim only requires a knowing falsity against the plaintiff, this bad jury charge could have made a difference at trial. 

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