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The 5th U.S. Circuit Court of Appeals undertook to clean out the Augean Stables of federal malicious prosecution actions in a Dec. 5 en banc decision. Castellano v. Fragozo, No. 00-50591. The court described its own precedents in this area as “a mix of misstatements and omissions [leading to] inconsistencies and difficulties.” It added, “We are not alone in this drift. Other circuits have traveled uneven paths as well.” What the court heralds as its “new path” based on a “return to basics” may not suffice to unite the circuits, however, at least if a dissenting opinion by two judges-Rhesa Hawkins Barksdale and Emilio M. Garza-is any indication. False prosecution The case had its genesis in the 1984 conviction of Alfred Castellano for the arson of his San Antonio restaurant. The most damning evidence was an audio recording of an incriminating conversation he had had with one of his employees, Maria Sanchez, as well as the in-court testimony of Sanchez and a police officer, Chris Fragozo, who worked for Castellano as a part-time security guard. Castellano was sentenced to five years of probation. Castellano filed three successive habeas corpus petitions presenting evidence that Sanchez and Fragozo were lovers who conspired to doctor the audio recording and falsify their trial testimony. In 1993, the Texas Court of Criminal Appeals overturned the conviction. Castellano filed suit in federal court under 42 U.S.C. 1983, seeking damages for violations of his rights under the Fourth and 14th amendments, among other claims. Relying in part on precedent that the 5th Circuit now disavows, the trial judge ruled that in order to show a constitutional violation, Castellano would have to satisfy the elements of the Texas law of malicious prosecution and that such a claim could be brought only under the Fourth Amendment’s protection against unreasonable search and seizure, not the 14th Amendment’s right to due process (except insofar as the latter served to make the Fourth Amendment applicable to the states). According to the Castellano court, the 1st, 2d, 3d, 9th and 10th circuits (and perhaps the 6th and 8th circuits) insist, like the trial judge in this case, that plaintiffs should satisfy the elements of state malicious prosecution common law in addition to proving a constitutional violation. Though its precedents put it in that camp, the Castellano court justified a change in course by noting that Section 1983 is meant as a catchall remedy for violations of federal, not state, law. It then joined the 4th, 7th and 11th circuits in holding that the state law elements of malicious prosecution need be satisfied only if they are co-extensive with the elements of a constitutional wrong. The circuits are fractured in other respects as well. For instance, most circuits would agree with Castellano’s trial judge that Supreme Court precedent requires such claims to be channeled through the Fourth Amendment. Even within that realm of agreement there is disagreement, however. Some courts hold that post-arraignment restrictions on a defendant, such as requirements that he remain in the area as a condition of bail, can be construed as implicating the Fourth Amendment, while others object to that as overreaching. The Castellano court did not shoe-horn post-arraignment events into the Fourth Amendment because it bucked the general trend and joined the 3d Circuit in holding that other amendments, like the 14th, are appropriate vehicles for malicious-prosecution claims. Dissenting judges Barksdale and Garza claimed that the majority went too far in that regard, and should have ruled out 14th Amendment due process claims whenever state malicious prosecution law offers an adequate remedy. In any event, both majority and dissenters agreed that Castellano’s $3.5 million award was tainted by errors. All that he gained from the majority was the right to go back to trial. Young’s e-mail address is gyoungnlj.com.

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