Split decision in nuanced fabricated evidence claim yields win for plaintiff

Did you know you can sue the police for manufacturing evidence against you? These are called fabricated evidence claims. In this case, a divided Court of Appeals holds that the plaintiff can sue the police for fabricating his alleged drug sale even though plaintiff was found guilty of possession. This is a very nuanced holding.

The case is Barnes v. City of New York, issued on May 22. The district court said plaintiff could not maintain a fabricated evidence claim because there was no deprivation of liberty. The liberty deprivation must be proven in order to bring these claims under the Due Process Claim. The district court's reasoning was that plaintiff served no additional time in custody because of the possession conviction, even if he was acquitted of selling drugs. The Court of Appeals disagrees.

Judge Lee reasons that "to insist that a deprivation of liberty requires custody or a conviction overlooks the fact that Barnes' prosecution on the drug sale charge is itself a deprivation of liberty," and the Court has previously held that a plaintiff's "prosecution can be a deprivation of liberty." Liberty may be deprived by consequences beyond custody, the Court writes, as "being framed and falsely charged damages an individual's reputation, requires that individual to mount a defense, and places him in the power of a court of law." It is one thing to be arrested for drug possession. It is another thing to be falsely charged with being a drug dealer, the Court holds, and the two different arrests from the same event caused plaintiff therefore to "suffer[] different deprivations of liberty as a result."

In dissent, Judge Sullivan writes that, because Plaintiff "would have been held in the same place for the same amount of time," even without the fabricated evidence charge, his claim must fail since he alleges no "additional" liberty deprivation traceable to the fabricated evidence. The majority responds that this is not the law of the Second Circuit, which held in Smalls v. Collins, 10 F.4th 117 (2d Cir. 2021) (a case that I argued), that "we have long held that Section 1983 liability attaches for knowingly falsifying evidence even where there simultaneously exists a lawful basis for the deprivation of liberty that the plaintiff suffered."