UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

ZANE SCHOENFELD, 

 Plaintiff - Appellant, 

v. 

TRAVIS SIDES, 13th Judicial 

District, Deputy District Attorney in 

his personal capacity for damages, 

 Defendant - Appellee, 

and 

GERARD O’HALLORAN, 

Washington County Deputy Sheriff 

in his personal capacity for 

damages; KRISTEN THOMPSON, 

13th Judicial District Probation 

Officer in her personal 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 materially 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 binding precedent except 

under the doctrines of law of the case, res judicata, and collateral estoppel. 

But the order and judgment may be cited 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 Court
2 

Before TYMKOVICH, Chief Judge, BACHARACH, and MORITZ, 

Circuit Judges. 

_________________________________ 

This appeal involves the distinction between claims of false arrest 

and malicious prosecution. When someone is falsely arrested or 

maliciously prosecuted, state actors face potential 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. Zane Schoenfeld sued under § 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 registered a new social-media account, 

and this information led to the issuance and execution of an arrest warrant. 

Though Mr. Schoenfeld was arrested, the State eventually realized that he 

had no obligation to register his new social-media account. With this 

realization, the State dismissed the charges against Mr. Schoenfeld. But 

not before he was jailed and fired from his job. 
3 

In the ensuing litigation, the district court dismissed the cause of 

action against the prosecutor, concluding that Mr. Schoenfeld had failed to 

state a valid claim. We engage in de novo review, considering the 

allegations in the complaint in the light most favorable to Mr. Schoenfeld. 

See Lincoln v. Maketa, 880 F.3d 533, 537 (10th Cir. 2018). 

Engaging in de novo review, we conclude that the dismissal was 

correct. False arrest or malicious prosecution 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 ordinarily entail malicious prosecution, not false arrest, 

because the arrest was based on a warrant—a classic form of legal process. 

Id. at 799. 

But in the amended complaint, Mr. Schoenfeld expressly disavowed 

any claim against the prosecutor for malicious prosecution. See Appellant’s 

App’x at 17 (“The Plaintiff is not suing [the prosecutor] 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 spring 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 disavowed a malicious- 
4 

prosecution theory in district 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