Daily Archives: October 28, 2011

Continuing Confusion…

…generated by Albright v. Oliver, in a case scheduled to be argued in the SCOTUS on Tuesday.

The case is Rehberg v. Paulk.  Via the SCOTUS blog:

…Paulk makes an interesting observation via extended footnote:  the Court is determining whether absolute immunity applies to a civil claim that the Court has not recognized.  In Albright v. Oliver (1994), the Court declined to create a Fourteenth Amendment substantive due process claim for malicious prosecution.  Rather, the Court held that to the extent any constitutional claim for malicious prosecution existed, it lay within the confines of a more specific constitutional provision. The Albright majority declined to speculate whether the Fourth Amendment encompasses such a claim, but in a concurring opinion Justice Ginsburg strongly urged that it did.  Having prevailed on absolute immunity in the Eleventh Circuit, Paulk had no reason to challenge the Eleventh Circuit’s determination that a malicious prosecution claim falls within the Fourth Amendment. But his footnote amply makes the point that the question is hardly a clear one for the Court, albeit it one for another day.

The question “is hardly a clear one” because (among other things) the SCOTUS has only confronted it in the context of actions under 42 U.S.C. 1983, where it gets all bound up with immunity issues.  “Conflated”, the Court sometimes actually admits.

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