First Circuit: Wrongfully Incarcerated Protected Under Fourth Amendment from Malicious Prosecution

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Hernandez-Cuevas v. Taylor

Background: In 2004 a joint federal-Commonwealth task force consisting of FBI agents and local police officers opened a special investigation targeting a drug and money laundering conspiracy in Carolina, Puerto Rico.  The task force had two confidential informants (“UI-1”) and (“UI-2”), who had arranged a meeting with a target of the investigation.  After the crime had been committed the surveillance officers observed one of the vehicles drop an individual involved in the crime off at a multi-unit building where the plaintiff lived.  Throughout the next year the FBI was unable to identify the individual who exited the vehicle that day and in a rush to indict someone, two officers and UI-1 conspired to manufacture evidence implicating the plaintiff as the individual from the day of the crime.  The officers carried out a tainted photo identification even though the plaintiff bared very little resemblance to the individual described on the day of the crime.  On December 3, 2007 police arrested Hernandez, charging him with delivering $321,956 in drug proceeds to the undercover informant.  He was transferred to a federal prison in New Jersey where he was held for three months while awaiting further proceedings.  On February 29th he was released and on April 18, 2008 the United States Attorney for the District of New Jersey dismissed the charges against him.

On March 2, 2009, the plaintiff filed his complaint alleging that the conduct of the officers caused him to be held in federal custody for three months without probable cause.  The defendants argued that the case should be dismissed because the statute of limitations had passed as any Fourth Amendment claim had accrued on the day of his arrest.  While the court agreed with the defendants that the statute of limitations had passed on a straight forward Fourth Amendment false arrest claim, the statute of limitations for malicious prosecution does not begin to accrue until the day that the proceedings terminate in the plaintiffs favor (the dismissal of charges in April of 2008).  The defendants then filed another motion to dismiss, arguing that as police officers, they were entitled to qualified immunity.  The court denied their motion and the defendants filed the interlocutory appeal.

Issue: Whether the facts alleged show that the officer’s conduct violated some constitutional right

Analysis: The court began by highlighting the fact that neither the First Circuit nor the Supreme Court has determined that the Fourth Amendment includes a malicious prosecution claim.  However, each of the eight Courts of Appeals who have directly tackled the issue has concluded that individuals are protected under the Fourth Amendment against pretrial detention without probable cause.  In a common law malicious prosecution claim, the plaintiff must demonstrate that the officer acted with subjective malice.  In a purely constitutional Fourth Amendment claim, the plaintiff only needs to establish that his seizure was objectively unreasonable.  The approach taken by the Court was similar to that of other Court of Appeals who had been presented with the issue in the past; Fourth Amendment protection does not end when an arrestee becomes held pursuant to legal process.

The Court further stated that a plaintiff may bring such a claim under Section 1983 if he or she can establish that the Defendant (1) caused (2) a seizure of the plaintiff pursuant to legal process unsupported by probable cause, and (3) criminal proceedings terminated in plaintiffs favor.  In this case, the police officers acted with reckless disregard by blatantly making false statements in the warrant to arrest the Plaintiff in addition to the fact that the description given by the surveillance officer on the day of the incident did not resemble the plaintiff at all.  Finally, the case ended in the Plaintiff’s favor as the prosecutor dismissed the charges against him.

Proposed Changes in Patent Litigation E-discovery Rules

The United States International Trade Commission (ITC) is an independent federal agency who provides information and data to the Executive Branch, the Office of the United States Trade Representative, and Congress to assist with U.S. trade policy.   One of the areas that the ITC focuses on is patent litigation.  Electronic discovery, or E-discovery, has been the forefront of proposed changes with the ITC rules of practice and procedure.  Perhaps more than any other part of the law, E-discovery is a major part of patent litigation.  After researching and analyzing the process of E-discovery, the ITC came up with a proposed set of rule changes involving E-discovery in an attempt to stop the unnecessary requests from opposing parties which are rarely used at trial and are financially and time costly to the party providing the discovery.

The current rule on discovery lists the scope of discovery as any matter, not privileged, that is relevant to a claim or defense of any party.  Making the process even more arduous for parties is that even if the request from the opposing party is concerning inadmissible evidence, no objection may be made as long as the request appears “reasonably calculated to lead to the discovery of admissible evidence.”  The commission notes that while most electronic information is easy to access, there is some electronically stored information that is difficult and costly for the party to obtain.  For this reason, the proposed rule change would be that a party does not have to provide the requested discovery if it “is not reasonably accessible because of undue burden or cost.”  While this may seem as a disadvantage to parties requesting information, the ITC included a section where parties who are denied the information can file a motion to compel the information that is being denied.  The party whom the information is being requested from must then show that the information is not reasonably accessible because of undue burden or cost.  After this the administrative judge will then decide the issue on whether to order discovery or deny the request.  The judge also has the power to order the party requesting the information to pay the cost reasonably necessary for the other party to obtain the information.

Another aspect of the proposed rule changes deals with the attorney-client privilege and electronic communication.  From the beginning of a lawsuit until a settlement is reached or the jury reads the verdict, the attorneys on both sides of the case are in constant communication.  With electronic communication between opposing counsel becoming increasingly more common, the concept of inadvertent disclosure has also become increasingly more common in recent years.  Inadvertent disclosure is where an attorney, in the process of communicating electronically with the opposing attorney, inadvertently sends information to the opposing attorney that is privileged and cannot be used at trial.  However, when that information is sent to a third party the privilege may be waived and the information can then be used at trial.  Jurisdictions have taken one of three approaches to this issue; the privilege is always waived, never waived, or the most recent trend among jurisdictions is that it depends on the facts of the specific case.  If the proposed rule changes applied, the Commission would expect administrative judges to apply an approach similar to the third approach discussed above in which the judge would examine the circumstances and analyze factors such as steps the party took to reasonably prevent disclosure of the information, how important the information was and several other factors.