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Click here for the full text of this decision FACTS: Alfred Castellano sought damages for his wrongful conviction of arson, asserting claims under the First, Fourth, Fifth, Sixth, Eighth and 14th Amendments. Before trial the magistrate judge concluded that alleging the elements of malicious prosecution under Texas law stated a claim, but only under the Fourth Amendment. The trial judge passed over defendants’ claim of absolute immunity, accepting their argument that the U.S. Supreme Court in Albright v. Oliver, 510 U.S. 266 (1994), held that if there is an adequate state tort remedy there can be no claim for a denial of due process, and dismissed all claims under any other constitutional provision. With the Texas law of malicious prosecution now the source for his �1983 claim, Castellano amended his complaint, dropping his state law claim. A jury returned a substantial award of money damages. Chris Fragozo and Maria Sanchez argue here that the judgment against them rests on an impermissible blend of state tort and constitutional rights and that Castellano at best has only a Fourth Amendment claim. Castellano urges that all damages flow from the initial wrongful arrest and seizure in violation of the Fourth Amendment, a theory of recovery not forbidden by Albright; and that all of his claims under the First, Sixth, Eighth and 14th Amendments were dismissed at the urging of the defendants who did not object to the jury charge, and thus they cannot complain that the trial itself reintroduced Castellano’s due process claims, claims that were properly before the jury. HOLDING: The court reverses the judgment and remands the case for a new trial of Castellano’s federal and state claims under the Fourth and 14th Amendments and any state claims he may have. Defendants are correct that this verdict cannot stand resting solely on the Fourth Amendment for the reason that the award of damages does not distinguish between trial and pretrial events. On remand the district court is directed to grant leave to amend to all parties to conform their claims and defenses to this ruling. The court looks at the state law tort of malicious prosecution and then looks to the enforcement of constitutional protections enjoyed by persons accused of crimes, all as informed by the decision of the Supreme Court in Albright. A series of post- Albright decisions evolved into the rule articulated in Gordy v. Burns, 294 F.3d 722 (5th Cir. 2002). Gordy relied on Kerr v. Lyford, 171 F.3d 330 (5th Cir. 1999)). With hindsight, the court states, precedent governing �1983 malicious prosecution claims is a mix of misstatements and omissions which leads to the inconsistencies and difficulties astutely pointed to in Judge Barksdale’s dissent from the panel opinion and Judge Jones’s special concurrence in Kerr. Albright rejected the contention that the initiation of criminal proceedings without probable cause is a violation of substantive due process, holding that petitioner must look to the explicit text of the Fourth Amendment as a source of protection for the “particular sort of government behavior” at issue. To the point, causing charges to be filed without probable cause will not without more violate the Constitution. So defined, the assertion of malicious prosecution states no constitutional claim. It is equally apparent that additional government acts that may attend the initiation of a criminal charge could give rise to claims of constitutional deprivation. The initiation of criminal charges without probable cause may set in force events that run afoul of explicit constitutional protection � the Fourth Amendment if the accused is seized and arrested, for example, or other constitutionally secured rights if a case is further pursued. Such claims of lost constitutional rights are for violation of rights locatable in constitutional text, and some such claims may be made under 42 U.S.C. �1983. Regardless, they are not claims for malicious prosecution and labeling them as such only invites confusion. Under the unique circumstances of this case, the court applies an abuse of discretion standard, rather than plain error. The court cannot agree that the claims under the Fourteenth Amendment were properly dismissed because there was no deprivation of due process that can support a claim for damages under 42 U.S.C. �1983. The Supreme Court has made clear that Congress created a species of tort liability with �1983. Nor is there a serious suggestion that the Parratt v. Taylor, 451 U.S. 527 (1981), doctrine is applicable to Castellano’s claim that the manufacturing of evidence and use of perjured testimony at trial leading to his wrongful conviction denied him due process. On remand Castellano will face the well-established rule that prosecutors and witnesses, including police officers, have absolute immunity for their testimony at trial. Courts have also held that nontestimonial pretrial actions, such as the fabrication of evidence, are not within the scope of absolute immunity because they are not part of the trial. Thus, while Castellano’s due process claims are not properly rejected by the principles of Albright and Parratt, whether they survive the absolute immunity given witnesses in a criminal trial or whether the fabrication of the tapes could have been a legally sufficient cause of the wrongful conviction, the court leaves to the district court on remand. Castellano attempts to salvage his verdict by contending that the violation of the Fourth Amendment supports the verdict because it was the direct cause of all that followed. It is true that the charge refers to a denial of due process despite the pretrial dismissal of all but the Fourth Amendment, but this reference to due process is confined by the jury instruction. OPINION: Higginbotham, J. CONCURRENCE AND DISSENT: Jolly, J. “I join both Judge Higginbotham and Judge Barksdale in disclaiming the constitutional tort of malicious prosecution. I join Judge Barksdale and Judge Jones in rejecting a remand on the state claim. I join Judge Barksdale in rejecting the due process claim. I would remand for retrial on whatever remains of the Fourth Amendment claims.” CONCURRENCE AND DISSENT: Jones, J.; Smith, Clement and Prado, JJ., join. “Like Judge Barksdale, I applaud the court’s decision to jettison its mischievous and unfounded theory constitutionalizing the tort of malicious prosecution. This result is overdue. See Brummett v. Camble, 946 F.2d 1178 (5th Cir. 1991); Kerr v. Lyford, 171 F.3d 330, 342 (5th Cir. 1999) (Jones, J., concurring); Gordy v. Burns, 294 F.3d 722 (5th Cir. 2002). While I largely agree with Judge Higginbotham’s discussion of this point, I do not subscribe to the majority’s broad remand order.” CONCURRENCE AND DISSENT: Barksdale, J.; Emilio M. Garza, J., joins. “As is true of many well meaning, attempted solutions to long standing, significant problems, the majority opinion offers good news and bad. The good is our finally proscribing a claim under 42 U.S.C. �1983 for malicious prosecution. The bad comes in two doses: substituted for the freshly minted proscription is an erroneous new � 1983 claim for a due process violation; and this action is being remanded for a new, open-ended trial not only but on that new claim on others as well. This double-barrelled blast of bad news is compounded by Castellano’s never having requested on appeal any of the relief provided him so generously, albeit so erroneously, by the majority sua sponte. In sum, while I concur fully in the good news, I must respectfully dissent from the bad. “[I]t is indeed passing strange that, on the one hand, the majority properly prohibits pursuing a state law malicious prosecution claim under �1983, while, on the other, it improperly creates, sua sponte no less, a new federal law remedy to be pursued under �1983: a witness’ pre-trial evidence fabrication and perjury at trial equals denial of Fourteenth Amendment due process. (The majority does not state, however, whether the denial is ‘substantive’ or ‘procedural’; as discussed infra, that distinction is a critical factor.) It is even more strange that the majority creates this new remedy in the face of the crystal clear limiting signal in Albright v. Oliver , 510 U.S. 266 (1994) (holding no claim under �1983 for malicious prosecution based on asserted Fourteenth Amendment substantive due process right to no prosecution without probable cause), especially the concurrence by Justice Kennedy, id. at 281. No authority need be cited for the rule that federal courts should avoid constitutional issues if possible, yet the majority goes out of its way, sua sponte , to create this new remedy. “On top of all this, the majority remands, sua sponte, for a new trial on this new remedy and several other issues. In other words, on appeal, Castellano has not sought any of this relief. Under our long established rules of appellate procedure, this failure alone precludes the majority’s sua sponte remedy-creation and remand.”

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