McDonough v. Smith

Brief of Amici Curiae the American Civil Liberties Union, Bronx Defenders, Brooklyn Defender Services, Center for Appellate Litigation, Connecticut Innocence Project, the Innocence Project, the Legal Aid Society, National Association of Criminal Defense Lawyers, Neighborhood Defender Service of Harlem, New York County Defender Services, New York State Association of Criminal Defense Lawyers, Office of the Appellate Defender, and Vermont Office of the Defender General Supporting Rehearing En Banc.

Brief filed: 08/24/2018


McDonough v. Smith

2nd Circuit Court of Appeals; Case No. 17-0296-CV

Prior Decision

Panel decision 898 F.3d 259 (2nd Cir. Aug. 3, 2018)


The panel’s ambiguous new accrual rule will sow confusion. The panel opinion requires criminal defendants to file civil lawsuits while criminal charges are pending against them. The panel opinion’s accrual rule may functionally bar most fabrication claims and will generate litigation inefficiency. Evidence fabrication claims should not be treated like false arrest claims.


Samuel Shapiro, David Lebowitz, and Douglas E. Lieb, Emery Celli Brinckerhoff & Abady LLP, New York, NY.

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