CA10: False arrest affidavit can support malicious prosecution claim under Fourth Amendment

The Tenth Circuit holds that a false affidavit for arrest can underlie a false arrest and malicious prosecution claim under the Fourth Amendment. Plaintiff showed sufficient facts to survive summary judgment, even against a claim of qualified immunity. [False facts with malice would not support qualified immunity.] (Sheldon H. Nahmod, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (4th ed.), for the plaintiff.) Wilkins v. DeReyes, 528 F.3d 790 (10th Cir. 2008):

Depending on the circumstances of the arrest, a plaintiff can challenge the institution of legal process as wrongful in one of two ways. If arrested without a warrant–and thus triggering “the Fourth Amendment require[ment of] a judicial determination of probable cause as a prerequisite to extended restraint of liberty following arrest,” Gerstein v. Pugh, 420 U.S. 103, 114, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1975)–a plaintiff can challenge the probable cause determination made during the constitutionally-required probable cause hearing. See, e.g., Reed v. City of Chicago, 77 F.3d 1049, 1053-54 (7th Cir. 1996) (concluding the plaintiff failed to state a malicious prosecution claim when he challenged only the warrantless arrest, but not the subsequent institution of legal process). Or, if arrested pursuant to a warrant, plaintiff can challenge the probable cause determination supporting the warrant’s issuance. See, e.g., Meacham, 82 F.3d at 1562 (analyzing the Fourth Amendment malicious prosecution claim “that the affidavit prepared … in support of the arrest warrant contained deliberately false statements and omissions, thereby misleading the judge into issuing the arrest warrant”). Either way, the allegation would state a Fourth Amendment violation sufficient to support a § 1983 malicious prosecution cause of action.FN5

FN5 Because a person unlawfully arrested without legal process can bring a Fourth Amendment claim sounding in false imprisonment, Wallace, 127 S. Ct. at 1095, the malicious prosecution framework in a sense allows a second Fourth Amendment claim to come on the heels of the first one. Mondragon, 519 F.3d at 1083 n.4 (noting, in a case dealing with a forged arrest warrant, “[w]e do not foreclose the additional, though unlikely, possibility of a second Fourth Amendment claim, arising after the first one ends” (citing Wallace, 127 S. Ct. at 1096 n.2)). But because the institution of legal process separates the two claims–and thus makes them legally distinct–we think the two claims, though grounded in the same constitutional provision, can coexist.

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a. Existence of Fact Questions as to Malice

Reviewing the officers’ motion for summary judgment, the district court determined Plaintiffs presented sufficient evidence to create a fact question as to whether the officers fabricated evidence to arrest and prosecute them. In finding a factual basis for the theory that the officers coerced false testimony, the court pointed to the following evidence: Nieto’s and Popeleski’s susceptibility to the tactics employed in the interrogations because of their age and lack of education; other circumstances of the interrogations; and numerous statements by the officers, at times threatening harm to Nieto and Popeleski or their families and at other times promising help and safety.