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.
. . .
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.
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"If it was easy, everybody would be doing it. It isn't, and they don't."
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—Shemaya, in the Thalmud
"A system of law that not only makes certain conduct criminal, but also lays
down rules for the conduct of the authorities, often becomes complex in its
application to individual cases, and will from time to time produce imperfect
results, especially if one's attention is confined to the particular case at
bar. Some criminals do go free because of the necessity of keeping
government and its servants in their place. That is one of the costs of having
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—Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing
can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence."
—Mapp v. Ohio, 367 U.S. 643, 659 (1961).
Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment.
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
—Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
—United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
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"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
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—Martin Niemöller (1945) [he served seven years in a concentration camp]
“You know, most men would get discouraged by
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—Pepé Le Pew
"There is never enough time, unless you are serving it."
"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime."
—Johnson v. United States, 333 U.S. 10, 13-14 (1948)