United States Court of Appeals

For the First Circuit

No. 12-1053 

CARLOS HERNANDEZ-CUEVAS,

Plaintiff, Appellee,

v.

WILLIAM TAYLOR and STEVEN M. MARTZ,

Defendants, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Aida M. Delgado-Colón, U.S. District Judge]

Before

 Thompson, Stahl, and Lipez,

 Circuit Judges.

Stuart F. Delery, Assistant Attorney General, with whom Rosa

E. Rodriguez-Velez, United States Attorney, Barbara L. Herwig, and

Lowell V. Sturgill, Jr. were on brief, for appellants. 

Jose F. Quetglas Jordan, with whom Pedro R. Vazquez and the

Quetglas Law Offices were on brief, for appellee. 

July 17, 2013
LIPEZ, Circuit Judge. This case requires us to decide

for the first time whether an individual who alleges that the

unlawful conduct of law enforcement officers caused him to be held

for three months in pretrial detention without probable cause

states a Fourth Amendment claim actionable through a Bivens suit.1

Often called a "Fourth Amendment malicious prosecution" claim, the

existence and contours of such a claim are the subject of

considerable discord among the Courts of Appeals. After reviewing

the relevant case law, we conclude that an individual's Fourth

Amendment right to be free from seizure but upon probable cause

continues through the pretrial period,2

 and that, in certain

circumstances, injured parties can vindicate that right through a

§ 1983 or Bivens action. Furthermore, because we agree with the

district court that Hernandez-Cuevas has pleaded facts which, if

1

 A Bivens action is a civil action brought against agents of

the United States, deriving its name from Bivens v. Six Unknown

Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388

(1971). "This implied cause of action is the federal analog to

§ 1983 suits against state officials." Soto-Torres v. Fraticelli,

654 F.3d 153, 158 (1st Cir. 2011).

2 The Fourth Amendment to the United States Constitution

states:

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated, and no

Warrants shall issue, but upon probable cause, supported

by Oath or affirmation, and particularly describing the

place to be searched, and the persons or things to be

seized.

U.S. Const. amend. IV.

-2-
true, would be sufficient to establish that Taylor and Martz

violated his Fourth Amendment rights, we affirm the denial of

qualified immunity and remand for further proceedings. 

I. 

A. Factual Background

The following facts are drawn from the complaint and

documents incorporated into the complaint.

In 2004, plaintiff Carlos Hernandez-Cuevas was 40 years

old and living in a rented room in a multi-unit building located at

1655 Santa Ana Street in Carolina, Puerto Rico. Hernandez-Cuevas

is dark-skinned, approximately 5'10" tall, and thin, weighing about

150 pounds.

That same year, a joint federal-Commonwealth task force

consisting of FBI agents and local police officers opened a special

investigation targeting a significant drug and money laundering

conspiracy operating in Carolina. The task force employed at least

two confidential informants, referred to in the complaint as "UI-1"

and "UI-2." Working undercover, UI-1 and UI-2 arranged a meeting

on July 20, 2004 with several members of the money laundering

conspiracy in the parking lot of the Pueblo Supermarket on Route

187 in Carolina, "where a courier acting under the direction of

such co-conspirators was to deliver proceeds of drug sales to UI1."

The task force agents set up a surveillance unit to

-3-
observe this transaction. According to a contemporaneous

surveillance report, the agents at the scene saw a white and silver

Mitsubishi Montero with license plate number DMV-656 enter the

parking lot and park next to UI-1's car. The driver of the

Montero, referred to in the complaint as "UNSUB #1," rolled down

his window and spoke with UI-1. Both cars then left the parking

lot.

Some time later, UI-1 returned to the parking lot, this

time tailed by a white Jeep Cherokee with license plate number FDA680. Two unknown males were inside the Jeep: the driver, referred

to in the complaint as "UNSUB #2," and a passenger, referred to as

"UNSUB #3." In their surveillance report, the FBI officers at the

scene described UNSUB #3 as a "black male, with black hair, 5 feet

and 7 inches tall, a heavy build, and in his late fifties."

The Jeep pulled up alongside UI-1's car. UNSUB #3 exited

the Jeep and placed two bags containing $321,956 in cash in the

trunk of UI-1's car. UNSUB #3 then returned to the Jeep, which

left the parking lot. FBI agents from the surveillance unit

followed the Jeep, and saw the driver drop UNSUB #3 off on Santa

Ana Street in Carolina. The agents last observed UNSUB #3 walking

toward the "porch area" of the multi-unit building located at 1655

Santa Ana Street, where Hernandez-Cuevas lived.

Nearly a year passed, during which the FBI was unable to

positively identify UNSUB #3. "In a rush to indict someone as

-4-
UNSUB #3," Martz, Taylor, and UI-1 conspired to manufacture

evidence indicating that UNSUB #3 was Hernandez-Cuevas. In

furtherance of their plan, Martz and UI-1 "carried out a tainted

photo identification." On May 25, 2005, Martz e-mailed UI-1

pictures of six individuals, including a photograph of HernandezCuevas. The following day, U-1 called Martz on the telephone and

identified Hernandez-Cuevas as UNSUB #3, even though HernandezCuevas's physical appearance –- tall, thin, and 40 years old -- is

strikingly different from the contemporaneous FBI report describing

UNSUB # 3 as "5 feet and 7 inches tall, a heavy build, and in his

late fifties." Despite the discrepancies between HernandezCuevas's appearance and the original surveillance description of

UNSUB #3, Martz wrote an internal FBI report based on UI-1's

identification concluding that UNSUB #3 was in fact HernandezCuevas. 

Another two years passed without further action in the

case. Finally, on November 21, 2007, Taylor "either knowingly or

in reckless disregard of the truth" included the false

identification of Hernandez-Cuevas as UNSUB #3 in a warrant

affidavit, attesting that on July 20, 2004, Hernandez-Cuevas had

delivered $321,956 in drug proceeds to UI-1.

On the basis of these false statements, a magistrate

judge in Puerto Rico issued a warrant for Hernandez-Cuevas's

arrest. According to the complaint, without Taylor's statements,

-5-
the government would have been unable to establish probable cause

to obtain the warrant. FBI agents arrested Hernandez-Cuevas on

December 3, 2007 and brought him before a magistrate judge the

following day. On December 6, 2007, he appeared again before a

magistrate judge, who ordered him detained without bail pending

trial and transferred him to a federal prison in New Jersey, where

he was incarcerated for nearly three months awaiting further

proceedings. On February 29, 2008, he was released on his own

recognizance following a hearing before a magistrate judge in New

Jersey; on April 18, 2008, the United States Attorney for the

District of New Jersey dismissed the charges against HernandezCuevas.

Hernandez-Cuevas alleges that he was not in the parking

lot of the Pueblo Supermarket on July 20, 2004, and that he has

never been involved in the drug trade. He also alleges that he has

never "owned, possessed, driven or traveled" in either of the cars

observed by the FBI agents in the parking lot.

B. Procedural Background

Hernandez-Cuevas filed his complaint on March 2, 2009,

alleging that Martz and Taylor's misconduct caused him to be held

in federal custody for three months without probable cause.3 The

3 The original complaint was dismissed without prejudice for

lack of proper service on July 14, 2009 and re-filed on July 28,

2009. The district court determined that under Puerto Rico law,

the original complaint tolled the statute of limitations. See P.R.

Laws Ann. tit. 31, § 5303; see also López-González v. Municipality

-6-
defendants first moved to dismiss plaintiff's complaint on statute

of limitations grounds, arguing that Puerto Rico's one-year

limitations period had run by the time Hernandez-Cuevas filed his

complaint on March 2, 2009. Under the government's theory, any

Fourth Amendment claim of Hernandez-Cuevas had accrued in December 

2007 on the day of his allegedly unlawful arrest. As such, the

Puerto Rico one-year statue of limitations expired in December 

2008, several months before Hernandez-Cuevas filed this complaint.

The district court agreed in part with the defendants,

reasoning that if Hernandez-Cuevas had filed his complaint shortly

after his arrest in December 2007, he would have had a

straightforward Fourth Amendment false arrest claim. But because

Hernandez-Cuevas failed to file his complaint until more than a

year after his December 2007 arrest, the district court agreed with

the government that any claim for damages flowing from the arrest

itself was time-barred. See Torres v. Superintendent of Police,

893 F.2d 404, 406 (1st Cir. 1990) (noting that "the appropriate

statute of limitations for a Section 1983 claim is Puerto Rico's

one-year period governing tort actions"); see also Wallace v. Kato,

549 U.S. 384, 390 (2007) (holding that accrual for § 1983 claims is

governed by federal law and a Fourth Amendment false arrest claim

accrues on the date of arrest); Heck v. Humphrey, 512 U.S. 477, 484

of Comerío, 404 F.3d 548, 551-52 (1st Cir. 2005). Defendants do

not challenge that determination on appeal. Accordingly, we treat

this complaint as though it had been filed on March 2, 2009. 

-7-
(1994); Calero-Cólon v. Betancourt-Lebron, 68 F.3d 1, 3-4 (1st

Cir. 1995) (discussing accrual rules for malicious prosecution and

false arrest claims brought under § 1983).

The court disagreed, however, with the government's

argument that the statute of limitations on all plausible Fourth

Amendment claims had run by the time Hernandez-Cuevas filed his

complaint. Instead, the court agreed with Hernandez-Cuevas that in

addition to allegations that he sustained injuries from the arrest

itself, the complaint alleged that he sustained injuries from the

three months that he was held in federal custody without probable

cause. Concluding that Hernandez-Cuevas was correct that the

closest common law analogy for this claim was malicious

prosecution, the court allowed him to proceed on this claim because

malicious prosecution claims accrued at common law on the day that

the proceedings terminated in plaintiff's favor, see Wallace, 549

U.S. at 390, which in this case occurred on April 18, 2008, less

than a year before Hernandez-Cuevas filed his complaint on March 2,

2009.4

The defendants then filed a second motion to dismiss,

4 A defendant cannot file an interlocutory appeal of a

denial of a motion to dismiss on statute of limitations grounds. 

Instead, a defendant must wait until final judgment has entered to

seek appellate review. See Garnier v. Rodríguez, 506 F.3d 22, 25

(1st Cir. 2007) (holding that where officer filed interlocutory

appeal of both denial of qualified immunity and denial of motion to

dismiss on statute of limitations grounds, court of appeals had

jurisdiction only over qualified immunity appeal).

-8-
arguing, inter alia, that Taylor and Martz were entitled to

qualified immunity. The court denied the defendants' motion. 

Citing the Supreme Court's opinion in Franks v. Delaware, 438 U.S.

154 (1978), the court concluded that it had long been clearly

established law that the Fourth Amendment prohibits a police

officer from manufacturing probable cause by knowingly including

false statements in a warrant affidavit.5

Taylor and Martz then filed this interlocutory appeal

challenging the district court's denial of qualified immunity.

II.

We have jurisdiction over this interlocutory appeal

because a trial court's denial of a federal officer's qualified

immunity defense is a "final decision within the meaning of 28

U.S.C. § 1291." Soto-Torres v. Fraticelli, 654 F.3d 153, 157 (1st

Cir. 2011); see also Ashcroft v. Iqbal, 556 U.S. 662, 671-72

(2009); Cox v. Hainey, 391 F.3d 25, 29 (1st Cir. 2004) ("[M]any of

the benefits of qualified immunity are squandered if the action is

incorrectly allowed to proceed to trial."). Our review is de novo. 

5

 In his opposition brief, Hernandez-Cuevas argues that Martz

and Taylor have waived their qualified immunity defense because

they did not argue before the district court that they were

entitled to qualified immunity on the Fourth Amendment malicious

prosecution claim specifically. There is no merit to this

argument. Martz and Taylor asserted the affirmative defense of

qualified immunity in their Answer to Hernandez-Cuevas's complaint

and filed a motion to dismiss arguing that they were entitled to

qualified immunity on Hernandez-Cuevas's claim that they "conspired

to maliciously prosecute" him. Martz and Taylor needed to do

nothing more to preserve their qualified immunity defense. 

-9-
See Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1, 7 (1st Cir.

2011).

In an appeal from a denial of qualified immunity, we

generally proceed through a two-part analysis,6 considering whether

"(1) the facts alleged show the defendants' conduct violated a

constitutional right, and (2) the contours of this right are

'clearly established' under then-existing law so that a reasonable

officer would have known that his conduct was unlawful." Santana

v. Calderón, 342 F.3d 18, 23 (1st Cir. 2003). In this case,

however, Taylor and Martz have declined to raise any argument about

the 'clearly established' prong, choosing instead to pursue their

argument that Hernandez-Cuevas has failed to state a plausible

Fourth Amendment claim.7 As such, we confine ourselves to

6 Because "[t]he qualified immunity test is identical for

claims pursued under § 1983 and for Bivens-type suits," MartínezRodríguez v. Guevara, 597 F.3d 414, 419 (1st Cir. 2010), we use

case law developed under both types of claims interchangeably. 

7 We note that the government's decision to forfeit the

clearly established prong may have been motivated by the reasonable

conclusion that such an argument would be hopeless in any event. 

Though the question of whether the Fourth Amendment provides 

substantive protection during the pretrial period is a question of

first impression in this circuit, it cannot be seriously argued

that an objectively reasonable officer in Martz and Taylor's

position would have been ignorant of the fact that fabricating

evidence was constitutionally unacceptable. Indeed, we have

previously concluded that it is "self-evident" that "those charged

with upholding the law are prohibited from deliberately fabricating

evidence and framing individuals for crimes they did not commit." 

Limone v. Condon, 372 F.3d 39, 44-45 (1st Cir. 2004) (concluding

that "the right not to be framed by law enforcement agents was

clearly established in 1967"). 

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consideration of the first prong of the analysis, namely, "whether

the facts alleged, viewed in the light most favorable to the

complaining party, show that the officer's conduct violated some

constitutional right." Limone v. Condon, 372 F.3d 39, 44 (1st Cir.

2004).

That inquiry is more complicated than usual. Neither

this circuit nor the Supreme Court has ever explicitly determined

that the Fourth Amendment encompasses a malicious prosecution

claim. See Wallace, 549 U.S. at 390 n.2 ("We have never explored

the contours of a Fourth Amendment malicious-prosecution suit under

§ 1983 . . . ."); Harrington v. City of Nashua, 610 F.3d 24, 30

(1st Cir. 2010) ("It remains an unanswered question whether a

malicious prosecution claim is cognizable under the Fourth

Amendment and section 1983 . . . ."); Moreno-Medina v. Toledo, 458

Fed. App'x 4, 7 (1st Cir. 2012) (unpublished). 

Given the unsettled nature of this question, we are

frankly baffled by the government's explicit decision to forego any

argument that the Fourth Amendment does not encompass a malicious

prosecution claim. In its opening brief on appeal, the government

mentions the unsettled nature of this question, but then, without

presenting any argument, decides to proceed, assuming, arguendo,

that the Fourth Amendment encompasses a malicious prosecution

claim. 

Despite this omission, it would be an odd exercise on our

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part, under the circumstances of this case, to evaluate the

sufficiency of the pleadings on the assumption that the underlying

right existed. That approach might make sense if we found, as the

government argues, that the pleadings are insufficient, and thereby

brought this case to a close. That appears to be the government's

calculation. However, if we assumed the right existed, found the

pleadings sufficient, and remanded to the district court for

further proceedings, and then determined at a later stage of the

case that the underlying right did not exist, the post-remand

proceedings would have been a waste of judicial resources. Thus,

to avoid such an outcome, we will consider first whether the right

Hernandez-Cuevas seeks to vindicate exists at all before we

determine whether he has pled facts sufficient to establish that a

constitutional violation occurred. Cf. Engel v. Buchan, 710 F.3d

698, 702 (7th Cir. 2013) ("The issue of qualified immunity

necessarily includes the predicate of whether a Bivens remedy is

available in this context at all.").

A. Fourth Amendment Malicious Prosecution Claims

1. Legal Background

There has long been a sense among the courts that the

Constitution provides some protection for individuals who are

targeted for unreasonable, baseless prosecutions, and who, as a

result, are detained without probable cause during the pretrial

period. Though this view seems to be widely shared, the precise

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constitutional source and extent of any protection against this

type of harm are issues on which there has long existed "an

embarrassing diversity of judicial opinion." Albright v. Oliver,

510 U.S. 266, 271 n.4 (1994) (citation omitted) (internal quotation

marks omitted) (discussing the variety of judicial approaches to

these claims).

In years past, many courts, including this one,

recognized a substantive or procedural due process right to be free

from malicious prosecution. See, e.g., Torres, 893 F.2d at 409. 

Locating the right to be free from unreasonable pretrial detention

in the due process guarantees of the Constitution dovetailed with

our understanding that the rights of an accused following arrest

and arraignment are generally enshrined in the Fifth and Sixth

Amendments.

Nearly two decades ago, however, the Supreme Court's

opinion in Albright v. Oliver, 510 U.S. 266, firmly closed the door

on substantive due process as a vehicle for bringing such claims.

In addition, at least a plurality of the Justices concluded that

procedural due process would likewise rarely, if ever, be an

appropriate vehicle for such claims. See id. at 283-86 (Kennedy,

J., concurring in the judgment) (concluding that any procedural due

process malicious prosecution claim would, in most cases, be

precluded by the Parratt-Hudson doctrine). At the same time,

however, the Court strongly suggested in dicta that the plaintiff

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in Albright would have been more successful if he had sought relief

under the Fourth Amendment. See id. at 274 ("The Framers

considered the matter of pretrial deprivations of liberty and

drafted the Fourth Amendment to address it.").

Though confined to dicta, these statements about a Fourth

Amendment right to be free from malicious prosecution resulted in

a sea change in the law. Prior to Albright only a minority of

jurisdictions recognized a Fourth Amendment malicious prosecution

claim, but it is now the majority rule. Indeed, each of the eight

Courts of Appeals to directly address in the years since Albright

whether the Fourth Amendment provides protection against pretrial

detention without probable cause has concluded that it does. See,

e.g., Manganiello v. City of New York, 612 F.3d 149, 160-61 (2d

Cir. 2010); McKenna v. City of Philadelphia, 582 F.3d 447, 461 (3d

Cir. 2009); Evans v. Chalmers, 703 F.3d 636, 647 (4th Cir. 2012);

Castellano v. Fragozo, 352 F.3d 939 (5th Cir. 2003) (en banc);

Sykes v. Anderson, 625 F.3d 294, 310 (6th Cir. 2010); Lassiter v.

City of Bremerton, 556 F.3d 1049 (9th Cir. 2009); Pierce v.

Gilchrist, 359 F.3d 1279 (10th Cir. 2004); Grider v. City of

Auburn, 618 F.3d 1240, 1256 (11th Cir. 2010).

Though there is now broad consensus among the circuits

that the Fourth Amendment right to be free from seizure but upon

probable cause extends through the pretrial period, the circuits

are divided over the elements of such a claim. See Pierce, 359

-14-
F.3d at 1287-90 & n.8 (discussing circuit split); Castellano, 352

F.3d at 949-53 (same). The varying approaches adopted by the

different Courts of Appeals can be roughly placed in one of two

groups. The Fourth, Fifth, Sixth, and Tenth Circuits have adopted

a purely constitutional approach, requiring the plaintiff to

demonstrate only a Fourth Amendment violation. The Second, Third,

Ninth, and Eleventh Circuits, on the other hand, have adopted a

blended constitutional/common law approach, requiring the plaintiff

to demonstrate a Fourth Amendment violation and all the elements of

a common law malicious prosecution claim.

Though these two approaches reflect a theoretical divide

between the circuits, the elements of a Fourth Amendment malicious

prosecution claim under either the blended approach or the purely

constitutional approach are largely identical with one caveat. The

plaintiff in a common law malicious prosecution claim must, as the

name implies, demonstrate that the defendant officer acted with

subjective malice.8 A plaintiff alleging a purely constitutional

Fourth Amendment claim, on the other hand, usually need establish

only that his seizure was objectively unreasonable. See Sykes, 625

8

 The elements of a common law malicious prosecution claim

vary slightly from state to state, but in general they are: "(1)

the commencement or continuation of a criminal proceeding by the

defendant against the plaintiff; (2) the termination of the

proceeding in favor of the accused; (3) the absence of probable

cause for the criminal proceeding; and (4) actual malice." CaleroColón v. Betancourt-Lebron, 68 F.3d 1, at 3 n.5 (1st Cir. 1995);

see also W. Keeton, et al., Prosser & Keeton on Law of Torts § 119,

at 871 (5th ed. 1984).

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F.3d at 310-11 ("[T]he reasonableness of a seizure under the Fourth

Amendment should be analyzed from an objective perspective, which,

even in the context of malicious-prosecution claims, renders

irrelevant the subjective state of mind of the defendant[.]"

(internal quotation marks omitted)). However, as we shall explain,

there may be less to this divide than first appears.

2. Our Approach

Today, we join our sister circuits in concluding that the

Fourth Amendment protection against seizure but upon probable cause

does not end when an arrestee becomes held pursuant to legal

process.9 Though the Fifth and Sixth Amendments generally control

events following the arrest and arraignment of an individual

accused of committing a crime, we are convinced that an individual

does not lose his Fourth Amendment right to be free from

unreasonable seizure when he becomes detained pursuant to judicial

process. Certainly, in most cases, the neutral magistrate's

9 The moment a defendant becomes held pursuant to legal

process differs depending on whether or not the defendant was

arrested pursuant to a warrant. In a case where an individual is

arrested without a warrant, he is detained without process until,

"for example, he is bound over by a magistrate or arraigned on

charges." Wallace v. Kato, 549 U.S. 384, 389 (2007). In most

cases, this post-arrest, pre-process period can last only up to 48

hours. See Cnty. of Riverside v. McLaughlin, 500 U.S. 44, 56

(1991). Where an individual is arrested pursuant to a judicial

warrant, however, he becomes held pursuant to legal process at the

moment of arrest. See Nieves v. McSweeney, 241 F.3d 46, 54 (1st

Cir. 2001) (noting that in a malicious prosecution action,

"[g]enerally, the offending legal process comes either in the form

of an arrest warrant . . . or a subsequent charging document"); see

also W. Keeton, et al., supra, § 119, at 888.

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determination that probable cause exists for the individual's

arrest is an intervening act that could disrupt any argument that

the defendant officer had caused the continued unlawful seizure. 

See Sanchez v. Pereira-Castillo, 590 F.3d 31, 50 (1st Cir. 2009)

("We employ common law tort principles when conducting 'inquiries

into causation under § 1983.'" (quoting Gutierrez-Rodriguez v.

Cartagena, 882 F.2d 553, 561 (1st Cir. 1989))). But, if a

plaintiff can overcome this causation problem and demonstrate that

law enforcement officers were responsible for his continued,

unreasonable pretrial detention, the plaintiff has stated a

constitutional injury that may be vindicated through a § 1983

action. See Evans, 703 F.3d at 647 ("[E]ven where . . . a

prosecutor retains all discretion to seek an indictment, police

officers may have caused the seizure and remain liable to a

wrongfully indicted defendant[.]"). For example, officers may be

liable for unlawful pretrial detention when they have (1) "lied to

or misled the prosecutors"; (2) "failed to disclose exculpatory

evidence"; or (3) "unduly pressured the prosecutor to seek the

indictment." Id. at 647-48; see also Sykes, 625 F.3d at 308-309

(requiring plaintiff to demonstrate that the defendant officer

"made, influenced, or participated in the decision to prosecute"

(quoting Fox v. Desoto, 489 F.3d 227, 237 (6th Cir. 2007))

(internal quotation marks and alterations omitted)).

This holding harmonizes our law with the law of other

-17-
circuits, and makes explicit what has long been implicit in our

case law. In the past we have held that "some truths are selfevident. . . . [I]f any concept is fundamental to our American

system of justice, it is that those charged with upholding the law

are prohibited from deliberately fabricating evidence and framing

individuals for crimes they did not commit." Limone, 372 F.3d at

44-45. We now further specify that one constitutional source of

this "self-evident" prohibition against manufactured evidence in

the pretrial detention context is the Fourth Amendment's guarantee

of freedom from seizure but upon probable cause.

As to the elements of such a claim, we join those four

circuits that have adopted a purely constitutional approach,10

holding that a plaintiff may bring a suit under § 1983 (or Bivens)

if he can establish that: "the defendant (1) caused (2) a seizure

of the plaintiff pursuant to legal process unsupported by probable

10 We acknowledge that our statements in dicta have been

inconsistent, with some cases suggesting we might support a

constitutional approach and others indicating a common law

approach. Indeed, our comments have been so difficult to reconcile

that other courts and commentators have placed us on both sides of

the split. Compare Castellano v. Fragozo, 352 F.3d 939, 949 (5th

Cir. 2003) (en banc) (discussing circuit split and concluding that

the First Circuit requires showing of all common law elements) and

Jacques L. Schillachi, Note, Unexamined Premises: Toward Doctrinal

Purity in § 1983 Malicious Prosecution Doctrine, 97 Nw. U. L. Rev.

439, 460-61 (2002) (same), with Lambert v. Williams, 223 F.3d 257,

261 (4th Cir. 2000) (placing First Circuit among the circuits

requiring something less than a showing of all common law tort

elements), and Joseph G. Yannetti, Note, Who's on First, What's on

Second, and I Don't Know About the Sixth Circuit: A § 1983

Malicious Prosecution Circuit Split that Would Confuse Even Abbott

& Costello, 36 Suffolk U. L. Rev. 513, 517 (2003) (same).

-18-
cause, and (3) criminal proceedings terminated in plaintiff's

favor." Evans, 703 F.3d at 647. The rights guaranteed by the

Fourth Amendment are not superseded by the common law, and we see

no principled reason why plaintiffs alleging a constitutional

injury should be entitled to relief only if they can demonstrate

that their claim meets all the elements of a common law claim. 

Though we often look to the common law for guidance, it is a

familiar principle that the constitutional tort authorized by

§ 1983 "stands on its own, influenced by the substance, but not

tied to the formal categories and procedures, of the common law." 

Albright, 510 U.S. at 277 n.1 (Ginsburg, J., concurring); see also

Castellano, 352 F.3d at 954-55 (discussing how continued uncritical

reliance on pre-Albright case law has led to an impermissible

blending of state tort law and constitutional law).

Though we adopt a purely constitutional rather than a

blended constitutional/common law approach, we believe that the

practical consequences of this choice are less significant than

they initially appear. In fact, in most cases, the showing

required to prove a Fourth Amendment malicious prosecution claim

under a purely constitutional theory will be almost

indistinguishable from that required in the circuits using a

blended constitutional/common law approach to a Fourth Amendment

malicious prosecution claim. Regardless of the approach adopted,

to establish a Fourth Amendment violation involving pretrial

-19-
detention under the Supreme Court's reasoning in Franks v.

Delaware, the plaintiff must demonstrate that –- despite the

magistrate's determination that the evidence presented was, on its

face, sufficient to establish probable cause -- that evidence was,

in fact, constitutionally unacceptable because the officers

formulated evidence essential to the probable cause determination

with a mental state similar to common law malice.

The Supreme Court explained in Franks that to show that

a magistrate's facially valid probable cause determination was

constitutionally unacceptable, the moving party must demonstrate

that the police officer submitted to the magistrate evidence that

was not "believed or appropriately accepted by the [officer] as

true." Franks, 438 U.S. at 165. This was a constitutional

requirement, flowing from the "language of the Warrant Clause

itself, which surely takes the affiant's good faith as its

premise." Id. at 164. The Court thus concluded that in order for

a warrant to satisfy the Fourth Amendment, the magistrate's

probable cause determination must not have relied upon evidence an

officer submitted in bad faith. Id. at 171-72; see Burke v. Town

of Walpole, 405 F.3d 66, 82 (1st Cir. 2005) (reasoning that where

"reckless misstatements or omissions" were included in a warrant

affidavit "a court owes no deference to a magistrate's decision to

issue an arrest warrant"); see also United States v. Ranney, 298

F.3d 74, 78 (1st Cir. 2002) (noting that defendants "failed to make

-20-
the requisite . . . showing that absent the false information the

affidavit contained insufficient evidence to support a finding of

probable cause").

Franks, however, did not establish strict liability for

police officers. To show that the evidence presented to the

magistrate was not "truthful" in the Franks sense, "[a]llegations

of [police] negligence or innocent mistake are insufficient." 

Franks, 438 U.S. at 171. Rather, the plaintiff must demonstrate

that law enforcement officers made statements in the warrant

affidavit which amounted to "deliberate falsehood or . . . reckless

disregard for the truth," and that those deliberate falsehoods were

necessary to the magistrate's probable cause determination. Id.;

see also Burke, 405 F.3d at 81-82 (applying the Franks standard in

the § 1983 context). This kind of reprehensible behavior seems

indistinguishable from the common law element of malice.11 Indeed,

we suspect that in those jurisdictions requiring an independent

showing of malice, the malice analysis is largely duplicative of

the probable cause analysis, which excludes from that analysis any

statements in the warrant affidavit deliberately false or in

reckless disregard of the truth. See, e.g., Grider, 618 F.3d at

1258-59 (relying on the same allegations concerning a police

11 Common law malice standards vary by jurisdiction and

context, but Black's Law Dictionary defines malice to mean "1. the

intent, without justification or excuse, to commit a wrongful act.

2. Reckless disregard of the law or of a person's legal rights." 

Black's Law Dictionary 712 (8th ed. 2004).

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officer fabricating evidence to infer both that the individual was

arrested without probable cause and that the police officer acted

with malice).

Having determined that the Fourth Amendment right to be

free from seizure but upon probable cause extends through the

pretrial period and a plaintiff may bring a suit under § 1983 (or

Bivens) to vindicate that right, we turn now to the complaint at

issue in this appeal and consider whether the facts alleged therein

state a plausible claim that Martz and Taylor violated this right. 

B. Hernandez-Cuevas's Complaint

In evaluating the sufficiency of the complaint, our

inquiry focuses "on the reasonableness of the inference of

liability that the plaintiff is asking the court to draw from the

facts alleged in the complaint." Ocasio-Hernández, 640 F.3d at 13;

see also Iqbal, 556 U.S. at 678 ("A claim has facial plausibility

when the plaintiff pleads factual content that allows the court to

draw the reasonable inference that the defendant is liable for the

misconduct alleged."). To this end, "we first disregard all

conclusory allegations that merely parrot the relevant legal

standard." Young v. Wells Fargo, N.A., No. 12-1405, slip op. at 10

(1st Cir. May 21, 2013). We then consider whether the remaining

allegations "taken as true, . . . state a plausible, not a merely

conceivable, case for relief." Sepúlveda-Villarini v. Dep't of

Educ., 628 F.3d 25, 29 (1st Cir. 2010). Ultimately, "[t]he

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relevant question . . . in assessing plausibility is not whether

the complaint makes any particular factual allegations but, rather,

whether 'the complaint warrant[s] dismissal because it failed in

toto to render plaintiffs' entitlement to relief plausible.'" 

Rodríguez-Reyes v. Molina-Rodríguez, 711 F.3d 49, 55 (1st Cir.

2013) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 569 n.14

(2007)).

Here, despite our admonition that "[t]he complaint should

be read as a whole, not parsed piece by piece to determine whether

each allegation, in isolation, is plausible," Ocasio-Hernández, 640

F.3d at 14 (quoting Braden v. Wal-Mart Stores, Inc., 588 F.3d 585,

594 (8th Cir. 2009)), the government has done just that, electing

in its appeal to challenge the complaint in a piecemeal fashion. 

The government dwells in particular on five allegations in the

complaint, each of which it claims amounts to nothing more than the

sort of "formulaic recitation" that Iqbal requires us to disregard. 

These allegations are that: 1) Martz conducted a "tainted" photo

array; 2) Martz included the identification obtained from the photo

array in an internal FBI report; 3) Taylor recklessly or knowingly

included that same identification in a warrant affidavit; 4)

Martz's report and photo identification caused Hernandez-Cuevas to

be arrested and charged; and 5) Taylor and Martz framed HernandezCuevas because they were "in a rush to indict someone" for the role

UNSUB #3 played in the Carolina conspiracy. 

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We are unpersuaded by the government's balkanized

approach. Rather, reviewing the complaint as a whole, we believe

that it was reasonable for the district court to infer from the

cumulative power of the facts alleged in the complaint that Martz

and Taylor caused Heranandez-Cuevas to be detained without probable

cause for three months following his initial appearance before the

magistrate. Cf. Ocasio-Hernández, 640 F.3d at 15 ("[T]he Supreme

Court has suggested that allegations that would individually lack

the heft to make a claim plausible may suffice to state a claim in

the context of the complaint's other factual allegations." (citing

Twombly, 550 U.S. at 557)). Specifically, we find that HernandezCuevas's complaint describes the following narrative.

1. July 2004 Surveillance 

In July 2004, an FBI task force surveillance unit

witnessed a black male, short, stocky, and in his late fifties,

transfer $321,956 in drug proceeds to an undercover informant. The

agents tailed this man to Santa Ana Street in Carolina, but

eventually lost him. They last saw him walking toward the multiunit building located at 1655 Santa Ana Street.

2. The Investigation

Although the investigation into the broader money

laundering conspiracy continued, more than a year passed and the

FBI was still unable to locate or identify the man who had

delivered the $321,956 to UI-1 in the Carolina parking lot. Under

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pressure from their superiors to identify the subject before more

time was lost, agents Martz and Taylor discovered that there was

indeed a black male living at 1655 Santa Ana Street. His name was

Carlos Hernandez-Cuevas.

Other than his race and his address, nothing connected

this younger man to the money laundering conspiracy. HernandezCuevas did not match the physical description of the older man

observed in the Pueblo Supermarket parking lot, and he was not

associated with either the Jeep Cherokee or the Mitsubishi Montero

the surveillance unit identified at the scene.

3. The Photo Array

Realizing that this meager evidence would be woefully

insufficient to establish probable cause, Martz and Taylor decided

to create false evidence linking Hernandez-Cuevas to the crime. To

accomplish their unlawful means, Taylor and Martz worked in concert

with confidential informant UI-1 to arrange a tainted photo array. 

Although the complaint does not specify how the co-conspirators

tainted the photo array, Hernandez-Cuevas has pled sufficient facts

to support a reasonable inference that something was amiss. 

Specifically, Hernandez-Cuevas has alleged that rather than

selecting a photograph of someone matching the description of UNSUB

#3 -- short, stocky, and nearly sixty -- UI-1 picked a photograph

of Hernandez-Cuevas, who was tall, thin, and only forty. 

The government is correct that a mistaken identification

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is not necessarily inconsistent with innocent behavior. Here,

however, the facts alleged concerning the striking physical

dissimilarity between the surveillance description of UNSUB #3 and

Hernandez-Cuevas make the inference that the photo array was

somehow dishonest more plausible than the inference of an innocent,

but mistaken, identification. That is, Hernandez-Cuevas's

allegations are more than merely "consistent with conspiracy, but

just as much in line with" innocent behavior. Twombly, 550 U.S. at

554. Taken together, they raise a "reasonable expectation" that

further proceedings will reveal evidence of illegal conduct. Id.

at 556.

Like the district court, we are unconvinced by the

government's argument that Hernandez-Cuevas's allegation that the

photo array was "tainted" is "threadbare" in the sense of Iqbal. 

Certainly, an allegation that a photo array has been "tainted" can

be a legal conclusion in a case where a plaintiff alleges that the

likelihood of misidentification was so high that use of the

identification at trial would amount to a due process violation. 

See Foster v. California, 394 U.S. 440, 442-43 & n.2 (1969) (noting

that "in some cases the procedures leading to an eyewitness

identification may be so defective as to make the identification

constitutionally inadmissible as a matter of law"). But we do not

understand Hernandez-Cuevas's allegation that his photo array was

"tainted" in this technical sense. Rather, his allegation is a 

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descriptive, factual statement identifying the means Martz, Taylor,

and UI-1 employed to frame him. 

4. The Warrant Affidavit

Taylor then either knowingly or with reckless disregard

for the truth made sworn statements in a warrant affidavit

identifying Hernandez-Cuevas as the man who delivered the tainted

cash to UI-1 in the Pueblo Supermarket parking lot. It is a

plausible inference that Taylor acted with the requisite mental

state because the complaint alleges that Taylor made these

statements despite the fact that he knew that Hernandez-Cuevas did

not match the original description of UNSUB #3 in the surveillance

report, that Hernandez-Cuevas was not associated with either the

Jeep Cherokee or the Mitsubishi Montero identified by the

surveillance unit as participating in the parking lot transaction,

and that the only evidence linking Hernandez-Cuevas to the moneylaundering conspiracy was the tainted photo identification, his

race, and his address. See Burke, 405 F.3d at 81 ("Reckless

disregard for the truth in the submission of a warrant application

may be established where an officer in fact entertained serious

doubts as to the truth of the allegations or where circumstances

evinced obvious reasons to doubt the veracity of the allegations in

the application." (internal quotation marks and alteration

omitted)).

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5. Arrest and Detention 

The magistrate judge determined on the basis of Taylor's

affidavit that probable cause existed and issued a warrant for

Hernandez-Cuevas's arrest. Under the Franks analysis, see

discussion supra, we, like the district court, must reconsider the

evidence that was before the magistrate, omitting those

misstatements of Taylor that were intentionally or recklessly made,

to determine if, without the false evidence, there was still

probable cause to arrest Hernandez-Cuevas. See Franks, 438 U.S. at

172 n.8 (noting that once the false evidence has been removed, "if

what is left is sufficient to sustain probable cause, the

inaccuracies are irrelevant"). We agree with the district court

that, without Martz's statements based on the photo identification,

the remaining facts linking Hernandez-Cuevas to the conspiracy –-

that he was black and that he lived in an apartment complex close

to where UNSUB #3 was last seen –- would be woefully insufficient

to establish probable cause. 

Nevertheless, on the basis of a warrant that would have

never have issued without the tainted photo array, Hernandez-Cuevas

was arrested and brought before a magistrate judge, who bound him

over and ordered him detained in federal custody for three months

until a second magistrate judge ordered his release. Shortly

thereafter, the prosecutor dismissed the charges against HeranndezCuevas, setting the stage for this claim of unlawful detention.

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6. Conclusion

Given the specific facts Hernandez-Cuevas has included in

his complaint -– about the July 20, 2004 transaction in Carolina,

his own physical dissimilarity with UNSUB #3, the absence of any

relationship to the cars at the scene, and the lack of other

evidence tying him to the conspiracy -- we affirm the district

court's conclusion that the plaintiff has stated a plausible claim

that Martz and Taylor, through the use of a tainted photo array,

caused Hernandez-Cuevas to be held in federal custody for three

months without probable cause in violation of the Fourth 

Amendment's prohibition against unreasonable seizures.

III.

For these reasons, the district court's denial of qualified

immunity is affirmed. We remand to the district court for further

proceedings consistent with this opinion.

So ordered.

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