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In the Supreme Court of the United States No. In the Supreme Court of the United States DAVID F. EVANS; COLLIN FINNERTY; READE SELIGMANN, PETITIONERS v. CITY OF DURHAM, NORTH CAROLINA, ET AL. ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT PETITION FOR A WRIT OF CERTIORARI DAVID S. RUDOLF KANNON K. SHANMUGAM RUDOLF WIDENHOUSE Counsel of Record & FIALKO CHRISTOPHER N. MANNING 225 East Worthington JAMES M. MCDONALD Avenue #200 LUKE MCCLOUD Charlotte, NC 28203 WILLIAMS & CONNOLLY LLP 725 Twelfth Street, N.W. RICHARD D. EMERY Washington, DC 20005 ILANN M. MAAZEL (202) 434-5000 EMERY CELLI [email protected] BRINCKERHOFF & ABADY LLP 75 Rockefeller Plaza, 20th Floor New York, NY 10019 QUESTION PRESENTED Whether police officers who conspire with a prosecu- tor to fabricate evidence for subsequent use are immune from liability as a matter of law by virtue of the conspir- ing prosecutor’s decision to use the evidence. (I) PARTIES TO THE PROCEEDING Petitioners are David F. Evans; Collin Finnerty; and Reade Seligmann. Respondents are the City of Durham, North Carolina; David Addison; Patrick Baker; Steven W. Chalmers; Beverly Council; Mark Gottlieb; Benjamin Himan; Ronald Hodge; Jeff Lamb; Michael Ripberger; and Lee Russ. (II) TABLE OF CONTENTS Page Opinions below ................................................................................ 1 Jurisdiction ...................................................................................... 1 Statement ......................................................................................... 2 A. Background ........................................................................ 3 B. Procedural history ........................................................... 11 Reasons for granting the petition ............................................... 14 A. The decision below deepens conflicts among the courts of appeals concerning the circumstances under which police officers may be liable despite a prosecutor’s intervening action ..................................... 14 B. The court of appeals’ decision is erroneous ................. 24 Conclusion ...................................................................................... 32 TABLE OF AUTHORITIES Cases: Ashcroft v. Iqbal, 556 U.S. 662 (2009) ............................ 30, 31 Barts v. Joyner, 865 F.2d 1187 (11th Cir.), cert. denied, 493 U.S. 831 (1989) ..................................... 20 Beattie v. United States, 756 F.2d 91 (D.C. Cir. 1984) ..... 27 Beck v. City of Upland, 527 F.3d 853 (4th Cir. 2008) .. 18, 19 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) ........ 30 Buckley v. Fitzsimmons, 509 U.S. 259 (1993) .................... 22 Buckley v. Fitzsimmons, 20 F.3d 789 (7th Cir. 1994), cert. denied, 513 U.S. 1085 (1995) .................................. 24 Carey v. Piphus, 435 U.S. 247 (1978) ............................ 23, 25 Dennis v. Sparks, 449 U.S. 24 (1980) .................................. 26 Gregory v. City of Louisville, 444 F.3d 725 (6th Cir. 2006), cert. denied, 549 U.S. 1114 (2007) ............................. 15, 16 Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553 (1st Cir. 1989) ............................................. 18 Hand v. Gary, 838 F.2d 1420 (5th Cir. 1988) ..................... 20 (III) IV Page Cases—continued: Heck v. Humphrey, 512 U.S. 477 (1994) ............................. 27 Hector v. Watt, 235 F.3d 154 (3d Cir. 2001) .................. 14, 17 Landrigan v. City of Warwick, 628 F.2d 736 (1st Cir. 1980) ............................................. 23 Limone v. Condon, 372 F.3d 39 (1st Cir. 2004) ............ 23, 25 Malley v. Briggs, 475 U.S. 335 (1986) ........................ passim McGhee v. Pottawattamie County, 547 F.3d 922 (8th Cir. 2008) ....................................... 22, 23 McKinley v. City of Mansfield, 404 F.3d 418 (6th Cir. 2005), cert. denied, 546 U.S. 1098 (2006) ................................... 16 Michaels v. McGrath, 531 U.S. 1118 (2001) ....................... 17 Michaels v. New Jersey, 222 F.3d 118 (3d Cir.), cert. denied, 531 U.S. 1118 (2001) ................................... 24 Mitchell v. Forsyth, 472 U.S. 511 (1985) ............................. 31 Monell v. Department of Social Services, 436 U.S. 658 (1978) ............................................................ 13 Monroe v. Pape, 365 U.S. 167 (1961) ............................. 16, 26 Mooney v. Holohan, 294 U.S. 103 (1935) ............................ 25 Pinkerton v. United States, 328 U.S. 640 (1946) ............... 28 Pottawattamie County v. McGhee, 130 S. Ct. 1047 (2010) ....................................... 2, 22, 24, 29 United States v. Spinney, 795 F.2d 1410 (9th Cir. 1986) ..................................... 28, 29 Whitlock v. Brueggemann, 682 F.3d 567 (7th Cir. 2012), cert. denied, 133 S. Ct. 981 (2013) ............................. 20, 21 Wray v. City of New York, 490 F.3d 189 (2d Cir. 2007) .............................................. 18 Zahrey v. Coffey, 221 F.3d 342 (2d Cir. 2000) ........... passim Constitution and statutes: U.S. Const. Amend. IV .................................................... 11, 25 U.S. Const. Amend. V ............................................................ 16 U.S. Const. Amend. XIV ....................................................... 11 28 U.S.C. 1254(1) ...................................................................... 2 V Page Statute—continued: 42 U.S.C. 1983 ................................................................ passim Miscellaneous: Joel Flaxman, Proximate Cause in Constitutional Torts: Holding Interrogators Liable for Fifth Amendment Violations at Trial, 105 Mich. L. Rev. 1551 (2007).......................................... 15 Jacob Paul Goldstein, From the Exclusionary Rule to a Constitutional Tort for Malicious Prosecutions, 106 Colum. L. Rev. 643 (2006) ............... 15 W. Page Keeton et al., Prosser and Keeton on Torts (5th ed. 1984) ............................................................... 27, 28 Restatement (Second) of Torts (1965): § 442B cmt. c ...................................................................... 27 § 443 .................................................................................... 27 In the Supreme Court of the United States No. DAVID F. EVANS; COLLIN FINNERTY; READE SELIGMANN, PETITIONERS v. CITY OF DURHAM, NORTH CAROLINA, ET AL. ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT PETITION FOR A WRIT OF CERTIORARI David F. Evans, Collin Finnerty, and Reade Selig- mann respectfully petition for a writ of certiorari to re- view the judgment of the United States Court of Appeals for the Fourth Circuit in this case. OPINIONS BELOW The opinion of the court of appeals (App., infra, 1a- 58a) is reported at 703 F.3d 636. The opinion of the dis- trict court (App., infra, 59a-159a) is unreported. JURISDICTION The judgment of the court of appeals was entered on December 17, 2012. On March 11, 2013, the Chief Jus- tice extended the time within which to file a petition for a writ of certiorari to and including April 17, 2013, and on April 8, 2013, he further extended the time to and includ- (1) 2 ing May 16, 2013. The jurisdiction of this Court is in- voked under 28 U.S.C. 1254(1). STATEMENT In Pottawattamie County v. McGhee, 129 S. Ct. 2002 (2009), this Court granted certiorari to decide whether a prosecutor who conspires with police officers to fabricate evidence is immune from liability by virtue of the prose- cutor’s subsequent use of the fabricated evidence. After oral argument, the case settled before the Court could issue a decision. See 130 S. Ct. 1047 (2010). The question presented in this case is the flip side of the same coin: namely, whether police officers who con- spire with a prosecutor to fabricate evidence are immune from liability by virtue of the conspiring prosecutor’s subsequent use of the fabricated evidence. If anything, the question here is an easier one than in Pottawattamie County: there, the United States took the position that, although a prosecutor who conspires with police officers could not be held liable based on principles of absolute immunity, police officers could be held liable for “[a] con- spiracy between officer and prosecutor” by analogy to the common-law tort of malicious prosecution through procurement of criminal proceedings. U.S. Br. at 25 n.6, Pottawattamie County, supra (No. 08-1065). At oral ar- gument, a majority of the Court made statements sug- gesting that the government’s view on officer liability was the correct one. See Oral Arg. Tr. at 7, Potta- wattamie County, supra (Scalia, J.); id. at 8 (Kennedy, J.); id. at 9 (Ginsburg, J.); id. at 10-11 (Sotomayor, J.); id. at 14-15 (Stevens, J.). In the decision under review, the Fourth Circuit nev- ertheless held that police officers who conspired with a prosecutor to fabricate evidence were immune from lia- bility by virtue of the conspiring prosecutor’s use of the 3 fabricated evidence, which the court treated as a super- seding cause that broke the causal chain. That holding deepens a conflict among the courts of appeals concern- ing whether intervening prosecutorial action immunizes investigating officers from liability in a Section 1983 ac- tion. It also implicates a separate circuit conflict on the logically antecedent question whether the fabrication of evidence, standing alone, violates the targeted individu- al’s constitutional rights. And the Fourth Circuit’s deci- sion is erroneous both under this Court’s cases and un- der
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