UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

__________________ _______________ ZANE SCHOENFELD,
Pl aintiff - Appellant,

v. TRAVIS SIDES, 13th Judicial District, Deputy District Attorney in his personal capacity for damages,
De fendant - Appellee, and GERARD O’HALLORAN, Washington County Deputy Sheriff in his personal capacity for damages; KRISTEN THOMPSON, 13th Judicial District Probation Officer in her pers onal capacity for damages, Defendants. No. 17-1299 (D.C. No. 1:16-CV -02630-MSK-NYW) (D. Colo.)

__________________ _______________ ORDER AND JUDGMENT *

__________________ _______________

* Because oral argument would not ma terially aid our consideration of the appeal, we have decided the appeal based on the briefs. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This order and judgment does not constitute bind ing precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. But the order and judgment may be ci ted for its persuasive value under Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A). FILED United States Court of Appeals Tenth Circuit 

### April 17, 2018
Elisabeth A. Shumaker Clerk of Court2 Before TYMKOVICH , Chief Judge, BACHARACH , and MORITZ , Circuit Judges.

__________________ _______________ This appeal involves the distinctio n between claims of false arrest and malicious prosecution. When so meone is falsely arrested or maliciously prosecuted, st ate actors face pote ntial liability under 42 U.S.C. § 1983. But the two claims differ: The claim of malicious prosecution is confined to seizures (for purposes of the Fourth Amendment) based on “‘legal process’” like a warrant. Wilkins v. DeReyes , 528 F.3d 790, 798 (10th Cir. 2008) (quoting Mondragón v. Thompson , 519 F.3d 1078, 1083 (10th Cir. 2008)). The tort of false arrest is confined to seizures undertaken without legal process. Wallace v. Kato , 549 U.S. 384, 389-90 (2007). In this case, Mr. Za ne Schoenfeld sued unde r § 1983, claiming that he had been arrested without probable cause. The arrest grew out of Mr. Schoenfeld’s status as a registered sex offender. Law-enforcement officers learned that Mr. Schoenfeld had not re gistered a new soci al-media account, and this information led to the issuan ce and execution of an arrest warrant. Though Mr. Schoenfeld was arrested, the State even tually realized that he had no obligation to register his ne w social-media acc ount. With this realization, the State dismissed the charges against Mr. Schoenfeld. But not before he was jailed a nd fired from his job.3 In the ensuing litigation, the dist rict court dismissed the cause of action against the prosecutor, concludi ng that Mr. Schoenfeld had failed to state a valid claim. We engage in de novo review, considering the allegations in the complain t in the light most favo rable to Mr. Schoenfeld. See Lincoln v. Maketa , 880 F.3d 533 , 537 (10th Cir. 2018). Engaging in de novo re view, we conclude th at the dismissal was correct. False arrest or malicious pr osecution can result in a constitutional violation, but we analyze the two claims differently. Wilkins v. DeReyes , 528 F.3d 790, 798-99, 799 n.5 (10th Cir. 2008). Mr. Schoenfeld’s allegations would ordinari ly entail malicious prosec ution, not false arrest, because the arrest was based on a warra nt—a classic form of legal process. Id. at 799. But in the amended complaint, Mr . Schoenfeld expr essly disavowed any claim against the prosecutor for malicious prosecution. See Appellant’s App’x at 17 (“The Plaintiff is not suing [the prosecuto r] for Malicious Prosecution.”); id. at 18 (“[The prosecutor] is not sued for malicious prosecution.”). “A litigant is not entitled to disavow a claim before one court only to sp ring it on his opponent at the next stage of the proceedings.” Simmat v. U.S. Bureau of Prisons , 413 F.3d 1225, 1239-40 (10th Cir. 2005). Mr. Schoenfeld not only disavow ed a malicious-4 prosecution theory in distri ct court but also failed to address this theory in our court. As a result, we affirm.

Entered for the Court

Robert E. Bacharach Circuit Judge