Archive for the ‘Civil Rights – Section 1983’ Category
The Supreme Court granted certiorari on January 15, 2016, in Manuel v. City of Joliet, 136 S. Ct. 890 (2016), an unreported Seventh Circuit section 1983 malicious prosecution decision handed down on January 28, 2015.
Manuel, which will be argued in the Supreme Court’s 2016 Term, has the potential to be a blockbuster section 1983 decision that radically transforms the section 1983 malicious prosecution landscape. Such a transformation would have a dramatic impact on section 1983 claims brought for wrongful conviction and incarceration.
Here is the Question Presented: “Whether an individual’s Fourth Amendment right to be free from unreasonable seizure continues beyond legal process so as to allow a malicious prosecution claim based upon the Fourth Amendment.”
According to the Petition for Writ of Certiorari, the First, Second, Third, Fourth, Fifth, Sixth, Ninth, Tenth, Eleventh and D.C. Circuits have all answered this question in the affirmative, while only the Seventh Circuit, in Newsome v. McCabe, 256 F.3d 747 (7th Cir. 2001), has answered in the negative.
In Manuel, the Seventh Circuit affirmed the decision of the district court dismissing the plaintiff’s section 1983 Fourth Amendment claim that police officers maliciously prosecuted him when they falsified the results of drug tests and thereafter arrested him for possession with intent to distribute ecstasy. The district court relied on Newsome and the Seventh Circuit panel found no compelling reason to reconsider that precedent. The Seventh Circuit explained: “Newsome held that federal claims of malicious prosecution are founded on the right to due process, not the Fourth Amendment, and thus there is no malicious prosecution claim under federal law if, as here, state law provides a similar cause of action.”
The issues raised in Manuel have been a matter of great interest to me for some time. See my post of Sept. 11, 2009, about the basic elements of so-called section 1983 “malicious prosecution” claims. In that post I called for the virtual elimination of most of the tort-like terminology used for such purposes and for a renewed focus on the constitutional bases for such claims.
Manuel now provides the Court with its first opportunity in over twenty years– see Albright v. Oliver, 510 U.S. 266 (1994)–to consider the elements of such claims.
Recall that Albright was a splintered decision in which a plurality held that substantive due process could not be used as the basis for section 1983 malicious prosecution claims. See sections 3:65-3:66 of my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2015 West).
In the course of considering Manuel, the Supreme Court will likely address the relevance of available state remedies. It will likely also discuss the Fourth Amendment “continuing seizure” theory that Justice Ginsburg articulated in Albright, a theory that the Seventh Circuit has rejected.
Federal Attorney’s Fees Statute Means What SCOTUS Says It Means: Slapping Down the Idaho Supreme Court
It is hard to believe in this day and age that a state Supreme Court thinks it can advance its own interpretation of federal law contrary to an interpretation by the United States Supreme Court. But that’s exactly what happened in James v. Boise (No. 15-493), handed down on January 25, 2016.
In a terse per curiam decision, the Supreme Court slapped down the Idaho Supreme Court and declared that its interpretation of 42 U.S.C. section 1988, the Civil Rights Attorney’s Fees Awards Act, governed.
Recall that section 1988 provides that “a reasonable attorney’s fee” should be awarded to “the prevailing party” in a section 1983 suit. In Hughes v. Rowe, 449 U.S. 5 (1980)(per curiam), the Supreme Court, relying on the clear legislative history, interpreted this language as creating a double standard: a prevailing plaintiff is ordinarily entitled to fees but a prevailing defendant is only entitled to fees where the plaintiff’s suit was “frivolous, unreasonable, or without foundation.” See chapter 10 of my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2015)(West).
However, in the James case, which arose in the Idaho courts, the Idaho Supreme Court expressly rejected this interpretation of section 1988 as applied to prevailing defendants when section 1983 claims are brought in state courts.
Unsurprisingly, the Supreme Court reversed. Giving the Idaho Supreme Court a lesson from the basic course in constitutional law, the Supreme Court cited Martin v. Hunter’s Lessee, 1 Wheat. 304 (1816), for the proposition that Supreme Court interpretations of federal law are the supreme law of the land. They trump any contrary state court interpretations.
It quoted Rivers v. Roadway Express, Inc., 511 U.S. 298, 314 (1994): “It is this Court’s responsibility to say what a [federal] statute means, and once the Court has spoken, it is the duty of other courts to respect that understanding of the governing rule of law.”
There is no need to comment on this decision. Res ipsa loquitor.
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Mullinex v. Luna: A Supreme Court Qualified Immunity Excessive Force/High-Speed Police Chase Decision
On November 9, 2015, the Supreme Court handed down Mullinex v. Luna, 136 S. Ct. 305 (2015), which ruled on qualified immunity grounds in favor of a police officer who allegedly used deadly force in violation of the Fourth Amendment in a high-speed police chase situation.
An earlier decision, Plumhoff v. Rickard, 134 S. Ct. 2012 (2014), had ruled on the Fourth Amendment merits in favor of pursuing police officers who shot the driver and a passenger. See my post of May 28, 2014.
Both Plumhoff and Mullinex derive from the Court’s decision in Scott v. Harris, 550 U.S. 372 (2007), which ruled that a police officer did not violate the Fourth Amendment when he attempted to stop a fleeing driver from continuing his “public-endangering flight” by ramming the driver’s car from behind even though the officer’s actions created the risk of serious injury or death to the driver. According to the Court in Scott, a video of the chase made clear that the officer’s ramming of the car was objectively reasonable.
Mullinex v. Luna
Mullinex, an 8-1 per curiam decision (with Justice Scalia concurring in the judgment and Justice Sotomayor dissenting) involved a reportedly intoxicated driver who sped off in his car after being informed by a state trooper that he was the subject of an arrest warrant. He led officers on an interstate chase at speeds between 85-110 miles per hour and, during the course of the chase, warned officers by phone that he had a gun and would shoot the pursuing officers if they did not stop chasing him. Several officers set up a spike strip to stop the driver while another trooper, the defendant, considered another tactic: shooting at the car in order to disable it. Although the defendant did not have training in this tactic, he received preliminary approval from his supervisor to make the attempt if necessary.
Shortly after the defendant took up his shooting position, he spotted the car, with a trooper in pursuit, approaching the overpass where he was standing. Another officer was located beneath the underpass as well. Without waiting to see if the spike strip would work, the defendant fired six shots. The car thereafter engaged the spike strip, hit the median and rolled over several times. It became clear later that the driver had been killed by the defendant’s shots and that none of the shots had hit the car’s radiator, hood or engine block.
At trial, the district court denied the defendant’s qualified immunity motion for summary judgment and this was affirmed by the Fifth Circuit on denial of petition for rehearing en banc, seven judges dissenting.
The Supreme Court reversed per curiam, pointing out that it was not reaching the Fourth Amendment merits but instead deciding on qualified immunity grounds. The Court emphasized the need for particularity in the making the qualified immunity determination, warning against too high a level of generality. Specifically, according to the Court, the Fifth Circuit erred in ruling that the defendant violated the clearly settled rule that a police officer may not “use deadly force against a fleeing felon who does not pose a sufficient threat to harm to the officer or others.” This rule, derived from the Fourth Amendment deadly force case of Tennessee v. Garner, 471 U.S. 1 (1985), was not the correct qualified immunity test for excessive force cases.
Rather, as discussed in Brosseau v. Haugen, 543 U.S. 194 (2004)(per curiam), the correct qualified immunity inquiry in excessive force cases was whether it was clearly established that the Fourth Amendment prohibited the officer’s conduct in the particular situation he or she encountered. In Mullinex itself, existing precedent was “hazy” about the situation encountered by the defendant here: “a reportedly intoxicated fugitive, set on avoiding capture through high-speed vehicular flight, who twice during his flight had threatened to shoot police officers, and who was moments away from encountering an officer at Cemetery Road.” The Court maintained that “[t]he general principle that deadly force requires a sufficient threat hardly settles the matter.”
In short, none of the Court’s Fourth Amendment precedents, including Scott and Plumhoff, “squarely govern[ed]” the facts here. Furthermore, the dissent’s emphasis on the availability of spike strips as an alternative means of ending the chase was not persuasive on the qualified immunity issue: no Supreme Court decision had ever denied qualified immunity on this basis. Moreover, the circuit decisions relied on by the Fifth Circuit and the plaintiffs were “simply too factually distinct to speak clearly to the specific circumstances here.”
For these reasons, the defendant was entitled to qualified immunity.
Justice Scalia concurred in the judgment, contending that since the defendant shot at the car’s engine in order to stop the car, it was misleading to describe what happened here as the application of deadly force in effecting an arrest.
Justice Sotomayor dissented, arguing that the defendant’s conduct was “rogue” and it violated clearly established Fourth Amendment law. He should not have fired the shots without any training in the tactic, against the wait order of his superior officer and a second before the car hit spike strips that were intended to stop it.
1. The Court in Mullinex did not address the Fourth Amendment merits, which is the first line of defense in section 1983 cases. Instead, the Court skipped to qualified immunity, the second line of defense which, as seen in Mullinex itself, adds a significant layer of protection for section 1983 defendants.
2. The scope of qualified immunity protection in Fourth Amendment excessive force cases involving high-speed police chases is obviously quite broad. The Court insists on a high degree of factual similarity in the relevant case law for clearly settled law purposes.
3. The qualified immunity clearly settled law inquiry is a question of law for the court. This point is explicitly made by the Court in its discussion of the Fifth Circuit’s decision. This is not new.
4. Mullinex makes clear that the availability of potentially less deadly alternatives does not necessarily strip qualified immunity protection from police officers in high-speed chase situations.
5. Supreme Court decisions often serve to communicate or signal a specific message to affected institutions. Mullinex signals to the law enforcement community that qualified immunity protects all but the plainly incompetent.
For much more on qualified immunity, consult chapter 8 of my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION (4th ed. 2015)(West).
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TO MY READERS
It has been a while since I reorganized all of my posts (including videos and podcasts) in order to provide greater and more efficient accessibility for readers. There are now more than 150 posts.
I consider this reorganization important, and I hope it is also useful to you, because my posts are not intended to be of short-term utility. Instead, they are intended to serve the continuing educational needs of lawyers, law students, academics and the public at large.
I encourage you to search within each post for case names, topics and the like, that you are interested in.
I thank all of you for your ongoing support of this blog. I also invite you to follow me on Twitter @NahmodLaw.
Sheldon Nahmod (email@example.com).
What follows is the first of four posts (three are rather long) comprising all of my posts (with links) divided into the following four parts and four corresponding posts: PART I: SECTION 1983; PART II: CONSTITUTIONAL LAW; PART III: FIRST AMENDMENT; PART IV: EDUCATION
PART I: SECTION 1983
A Third Circuit Statute of Limitations Case: Accrual, the Continuing Violation Doctrine and Equitable Tolling
In a much-read post of October 27, 2011, entitled A Section 1983 Primer (5): Statutes of Limitation, I blogged about statutes of limitations in section 1983 cases. There I briefly discussed the complicated issues of (1) choosing the right state statute of limitation, (2) accrual of section 1983 claims and (3) when section 1983 claims are tolled.
Subsequently, in my post of June 17, 2013, entitled A Section 1983 Primer (10): Statutes of Limitation and Accrual After Heck v. Humphrey, I discussed the special accrual rule of Heck v. Humphrey, 512 U.S. 477 (1994), that applies where the plaintiff has a prior conviction whose validity might be implicated by a successful section 1983 damages action.
Then, in my post of June 9, 2014, entitled A Section 1983 Primer (11): Statutes of Limitation and Continuing Violations, I discussed the continuing violation doctrine and quoted Judge Posner‘s useful statement of that doctrine.
This post addresses Montanez v. Secretary Pennsylvania Dept. of Corrections, 773 F.3d 472 (3rd Cir. 2014), amending and superseding, 763 F.3d 257 (3rd Cir. 2014), which has something for almost everyone on accrual, the continuing violation doctrine and equitable tolling.
The Montanez Case
In Montanez, the plaintiff inmates sued corrections officials under section 1983 alleging that the department of corrections violated procedural due process through the automatic deduction of funds from their inmate accounts to cover court-ordered restitution, fines and costs. Their arguments were that they should have been provided by the department with some notice of the policy and an opportunity to be heard prior to the first deduction and, also, that the current procedures were insufficient.
The Third Circuit affirmed the district court’s dismissal of the complaint of one of the inmates on the ground that it was time-barred under Pennsylvania’s two year limitations period. The inmate’s claim accrued when the defendants began deducting funds from his account on April 6, 2000 (which he knew about), but he only filed his lawsuit on November 29, 2004. At the very latest his claim accrued when he filed a grievance challenging the deductions on November 17, 2002.
The Third Circuit went on reject the inmate’s continuing violation doctrine argument because he was aware of the relevant injury shortly after it occurred. Furthermore, even though the defendants continued to make deductions thereafter until 2010, when the inmate’s debt was satisfied, their “decision to enforce the … policy against [plaintiff] and its first deduction from his prison account constituted a discrete and independently actionable act, which triggered [his] obligation to assert his rights.”
Finally, the Third Circuit rejected plaintiff’s equitable tolling/fraudulent concealment argument based on Pennsylvania law. There was no fraudulent concealment here but, even if there was, the allegedly fraudulent statements of the defendants were made in response to grievances he filed more than two years after his cause of action accrued. “[Plaintiff] simply delayed too long to take advantage of equitable tolling doctrines.”
1. Accrual: In Montanez, the Section 1983 claim accrued under the applicable federal law of accrual–the discovery rule– when the inmate first knew of the injury to him and who likely caused it, which was on April 6, 2000 or, at the latest, on November 17, 2002.
2. The Continuing Violation Doctrine: Even though the effects–the continuing deductions–of the defendants’ allegedly unconstitutional act lasted for approximately 10 years, that was not enough to constitute a continuing violation. The focus for this purpose was on the first discrete act, namely, the first deduction on April 6, 2000.
3. Equitable tolling/fraudulent concealment: It is important to understand that under applicable Supreme Court precedents, the forum state’s tolling law governs section 1983 claims. And that tolling law includes not only formal tolling law set out in the forum state’s statutes but also state tolling law that is not statutory, such as equitable tolling and/or fraudulent concealment.
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My very first post, on August 19, 2009, dealt with the implications for supervisory liability of Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). This was followed by my post on October 16, 2009, setting out my view that Iqbal got it right on supervisory liability. Readers should consult these posts for relevant background.
This past year, I was preparing the 2015 Update to my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed.; West Group), when I came across recent Second, Third, Fourth and Eighth Circuit court decisions dealing with supervisory liability.
Here they are for your reading pleasure.
Second Circuit: Raspardo v. Carlone
A Second Circuit police supervisory liability case involved, among other things, § 1983 sexually hostile work environment claims against a police supervisor for failing to supervise a subordinate who sexually harassed the plaintiffs, former and current female police officers. Ruling for the supervisor on these claims, the Second Circuit, after noting that its pre-Iqbal decisions used a gross negligence standard for supervisory liability, observed that it did not have to decide whether this was still correct because even under that standard the supervisor was not liable. “He neither created a hostile work environment through his own direct actions nor was grossly negligent in his supervision or investigation of subordinate officers who allegedly harassed the plaintiffs on the basis of sex.”
Indeed, as soon as the supervisor became aware of the subordinate’s improper remarks to one of the plaintiffs, he placed him on administrative leave, and then began a broader investigation, including informing the prosecutor’s office when he learned of the subordinate’s sexual misconduct involving another plaintiff. The supervisor subsequently recommended the subordinate’s termination. Thus, the supervisor did not violate the plaintiffs’ constitutional rights either directly or in his supervisory capacity. Raspardo v. Carlone, 770 F.3d 97 (2nd Cir. 2014).
Third Circuit: Barkes v. First Correctional Medical, Inc.
In a Third Circuit case involving a prison suicide, the court addressed whether and to what extent Iqbal affected the circuit’s precedent on supervisory liability in an Eighth Amendment setting. It noted that most courts had gravitated to the “center” such that the state of mind necessary for supervisory liability varies just as does the state of mind necessary for the underlying constitutional violation. The Third Circuit went on to determine that this was its position as well, at least in this case. Thus, in an Eighth Amendment setting, the state of mind necessary for supervisory liability is subjective deliberate indifference, just as it is for the Eighth Amendment violation itself. This was consistent with the circuit precedent in Eighth Amendment cases. Sample v. Diecks, 885 F.2d 1099 (3rd Cir. 1989).
However, the Third Circuit left open the supervisory liability question with regard to different constitutional violations. Barkes v. First Correctional Medical, Inc., 766 F.3d 307 (3rd Cir. 2014), cert granted sub nom Taylor v. Barkes and judgment reversed on qualified immunity grounds, 135 S. Ct. 2042 (2015)(per curiam).
Judge Hardiman dissented in the Third Circuit, arguing that after Iqbal more was now required for supervisory liability: personal involvement and identifying a specific supervisory practice or procedure. Neither was shown here by the plaintiffs. He also argued that the defendants were entitled to qualified immunity, as the Supreme Court per curiam ultimately ruled in this case.
Fourth Circuit: Wilkins v. Montgomery
In a decision involving a § 1983 supervisory liability claim against an assistant director at a state mental hospital that was brought by a mother whose son was murdered by another patient, the Fourth Circuit, without discussing Iqbal, simply applied the three-part test of Shaw v. Stroud, 13 F.3d 791 (4th Cir. 1994), and found that there was insufficient evidence of any of the three elements required for supervisory liability. Wilkins v. Montgomery, 751 F.3d 214 (4th Cir. 2014).
Eighth Circuit: Jackson v. Nixon
In Jackson v. Nixon, 747 F.3d 537 (8th Cir. 2014), the Eighth Circuit emphasized the personal involvement requirement where the director of the Missouri Department of Corrections and the warden and the director of substance abuse treatment program in a correctional center were sued under § 1983 for allegedly violating the First Amendment free exercise rights of the plaintiff atheist inmate by requiring him to participate in religious activities as part of his treatment.
As to the director of the department of corrections, state law gave him authority to make prison-wide policy decisions, including those concerning substance abuse treatment programs, which meant that his alleged failure to act constituted the requisite personal involvement.
As to the warden, general supervisory authority was insufficient. The plaintiff had to show the warden’s direct involvement in the formation, implementation or enforcement of the allegedly unconstitutional policy, which he had not yet done.
Finally, as to the director of the substance abuse treatment program, the plaintiff plausibly alleged her personal involvement when he claimed that she did not ameliorate the constitutional violation by allowing him to avoid the religious parts of the program.
Judge Smith dissented, 747 F.3d 537, 546, on the ground that the plaintiff did not allege a violation of his First Amendment free exercise rights in the first place.
Of these four cases, only the Third Circuit in Barkes expressly applied Iqbal‘s holding to the case before it. But even it hedged a bit when it stated that its decision was limited to the Eighth Amendment.
In contrast, the Second Circuit in Raspardo avoided taking a stand on Iqbal in ruling that even under its more lenient pre-Iqbal standard the plaintiff lost on her supervisory liability equal protection claim (which required purposeful discrimination).
The Fourth Circuit in Wilkins did not address Iqbal at all, but still found against the plaintiff.
Finally, the Eighth Circuit in Jackson ruled in a manner consistent with Iqbal (all the while emphasizing personal involvement) because several of the defendants apparently acted with the requisite purpose for a Free Exercise Clause violation.
Section 1983 Malicious Prosecution (VI): Third and Fourth Circuit Decisions with a Fabrication of Evidence Twist
I blogged on Sept. 11, 2009, about the basic elements of so-called section 1983 “malicious prosecution” claims. I then blogged on 9-8-11, 9-26-11, 8-7-13, 4-8-14 and 5-11-15 about section 1983 malicious prosecution cases in the circuits.
What follows are recent section 1983 malicious prosecution/fabrication of evidence decisions from the Third and Fourth Circuits that I ran across in preparing the 2015 Update to my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. West).
Halsey v. Pfeiffer (3rd Circuit)
In Halsey v. Pfeiffer, 750 F.3d 273 (3rd Cir. 2014), an important case that couples section 1983 fabrication of evidence and malicious prosecution claims. the plaintiff, wrongly imprisoned for murder for over 20 years, sued various law enforcement officers and others alleging (1) the fabrication of his oral confession that led to the prosecutor filing charges against him and (2) malicious prosecution and (3) coercing him into signing the fabricated confession which was crucial at his trial. Reversing the district court’s grant of summary judgment to the defendants, the Third Circuit explained:
First, we reaffirm what has been apparent for decades to all reasonable police officers: a police officer who fabricates evidence against a criminal defendant to obtain his conviction violates the defendant’s constitutional right to due process of law. Second, we reinstate[plaintiff’s] malicious prosecution claim, principally because the prosecutor instrumental in the initiation of the criminal case against [plaintiff] has acknowledged that the false confession the [defendants] claimed they obtained from [plaintiff] contributed to the prosecutor’s decision to charge [plaintiff], and for that reason we will not treat the decision to prosecute as an intervening act absolving [defendants] from liability. Moreover, without that false confession, there would not have been direct evidence linking [plaintiff] to the crimes so that the prosecutor would not have had cause to prosecute [plaintiff]. …
In the course of its discussion in Halsey, the Third Circuit commented that in Johnson v. Knorr, 477 F.3d 75 (3rd Cir. 2007), it had not addressed the question, which it now answered in the affirmative, whether a fabrication claim could give rise to a stand-alone due process cause of action. It also observed that in this case any Fourth Amendment seizure had long since ended: it was the fabricated evidence that led to the unfair trial, the wrongful conviction and plaintiff’s incarceration. Further, this was analytically different from a section 1983 malicious prosecution claim as to which probable cause is a defense. Finally, as to plaintiff’s section 1983 Fourth Amendment malicious prosecution claim, the Third Circuit determined that the prosecutor’s decision to prosecute was not an intervening act that severed the initiation of prosecution from the defendants. The district court erred in concluding that the prosecutor’s decision to prosecute was made without regard to the defendants’ alleged misconduct. The district court further erred in finding that there would have been probable cause even without plaintiff’s confession: there were genuine issues of material fact on this question.
Massey v. Ojaniit (4th Circuit)
The Fourth Circuit cited the Third Circuit’s decision in Halsey in Massey v. Ojaniit, 759 F.3d 343 (4th Cir. 2014), another case coupling section 1983 fabrication of evidence and malicious prosecution claims. In this case, the plaintiff, released after almost twelve years of imprisonment, sued city police officers alleging that they fabricated evidence against him at trial to obtain his conviction in violation of due process. Ruling against the plaintiff, the Fourth Circuit observed that fabrication of evidence standing alone was not enough: the plaintiff had to allege adequate facts to show that the loss of liberty–his conviction and subsequent incarceration–was caused by the fabrication. This requirement included both cause in fact and proximate cause. Here, however, the plaintiff’s conviction was not caused by the alleged fabrication because the prosecution focused at trial on positive in-court identifications. In addition, the conviction was not the foreseeable result of the alleged fabrication.
The plaintiff in Massey also alleged a Fourth Amendment malicious prosecution claim, focusing on the fabricated evidence’s role in bringing about plaintiff’s arrest and his prosecution. Plaintiff lost here as well because he did not allege sufficient facts to undermine the grand jury’s probable cause determination. In other words, he did not sufficiently allege materiality of the fabricated evidence: even removing the fabricated evidence, there was sufficient evidence for a finding of probable cause.
Both cases recognize the availability of stand-alone due process fabrication of evidence claims. But while the plaintiff in Halsey properly alleged that the fabricated evidence led to his unfair trial, conviction and incarceration, the plaintiff in Massey did not.
Both cases also have in common section 1983 Fourth Amendment malicious prosecution claims and the all-important inquiry into causation–cause in fact and proximate cause–as well as the requirement of absence of probable cause. The Halsey plaintiff was able to persuade the Third Circuit that the prosecutor’s decision to prosecute was not a superseding cause and that there was a triable issue regarding the absence of probable cause. In contrast, the Massey plaintiff ‘s allegations were insufficient to persuade the Fourth Circuit that the grand jury’s probable cause determination was not a cause in fact of his arrest and prosecution.
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