Lawyer Who Beat Bribery Rap Can’t Sue Prosecutor

     CHICAGO (CN) – An Indiana lawyer cannot disguise claims of false arrest and malicious prosecution under the due-process clause, the 7th Circuit ruled.
     Michael Alexander was arrested in February 2008 for conspiracy to commit bribery as part of a witness-tampering investigation into his law office’s private investigator, Jeff Hinds.
     After beating the charges, Alexander sued several FBI agents and local prosecutor Mark McKinney, claiming that the agents conspired to manufacture false evidence against him.
     Alexander said that comments he made as a Delaware County prosecutor left him on McKinney’s bad side. McKinney had allegedly used his new role as county prosecutor to get back at Alexander for criticizing McKinney’s handling drug forfeitures on a local task force.
     Alexander said FBI agents tried to catch him in a sting operation and then doctored its recordings of the undercover meetings to exclude exculpatory evidence.
     But U.S. District Judge Richard Young found that McKinney had qualified immunity since Alexander failed to plead deprivation of a cognizable constitutional right.
     The lone constitutional right that Alexander had invoked, alleging “due process rights not to be deprived of his liberty premised upon manufactured false evidence,” failed to state a claim, the court found.
     A three-judge appellate panel agreed last week, noting that Alexander had merely attempted to plead around potential legal bars to his lawsuit.
     “Although the crux of his complaint alleges that – in light of the withheld and altered evidence – he was arrested without probable cause, Alexander does not bring a Fourth Amendment false arrest claim because such a claim would be untimely,” Judge Michael Kanne wrote for the court.
     Alexander had missed Indiana’s two-year statute of limitations for Fourth Amendment claims by five months.
     “Nor did Alexander bring a claim for malicious prosecution under Indiana state law,” Kanne noted, likely because of the broad immunity granted to prosecutors in the state.
     Alexander also declined to claim that withheld exculpatory evidence violated his right to a fair trial under Brady v. Maryland.
     “This leaves Alexander to attempt to piece together an amorphous substantive due process claim from the remains of his forgone or otherwise unavailable constitutional and state law claims,” Kanne wrote. “That is an approach we have squarely rejected … and we see no reason to depart from our precedent.”
     In summary, the court wrote, “Alexander cannot recast his untimely Fourth Amendment claim … by combining it with a state law malicious prosecution claim and simply changing the label of the claim to substantive due process.”

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