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CA10: False arrest affidavit can support malicious prosecution claim under Fourth Amendment

By John Wesley Hall, Jr.

The Tenth Circuit holds that a false affidavit for arrest can underlie a false arrest and malicious prosecution claim under the Fourth Amendment. Plaintiff showed sufficient facts to survive summary judgment, even against a claim of qualified immunity. [False facts with malice would not support qualified immunity.] (Sheldon H. Nahmod, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (4th ed.), for the plaintiff.) Wilkins v. DeReyes, 2008 U.S. App. LEXIS 12676 (10th Cir. June 13, 2008): Depending on the circumstances of the arrest, a plaintiff can challenge the institution of legal process as wrongful in one of two ways. If arrested without a warrant--and thus triggering "the Fourth Amendment require[ment of] a judicial determination of probable cause as a prerequisite to extended restraint of liberty following arrest," Gerstein v...continue to full post

Full post as published by Fourth Amendment on June 17, 2008 (boomark / email).