Michael Alexander v. Mark McKinney, 2012 U.S. App. LEXIS 16440

Alexander, a criminal defense attorney critical of McKinney, faced alleged conspiracy with FBI to manufacture evidence and charge him with conspiracy to commit bribery.
Alexander was acquitted at trial, and subsequently sued McKinney in federal court under 42 U.S.C. § 1983 for due process violations.
The district court dismissed, holding McKinney entitled to qualified immunity because the complaint did not allege a cognizable constitutional right.
Allegations include fabrication and alteration of evidence, and attempts to elicit incriminating statements via covert meetings.
A special prosecutor was appointed to prosecute Alexander based on the purportedly false or altered evidence; Alexander alleged due process harms from the fabrication.
The appellate court affirmed the district court’s dismissal, holding the proposed due process claim was not cognizable and could not be salvaged by recasting it as a substantive due process claim.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Alexander states a cognizable due process claim based on fabricated evidence.	Alexander asserts fabricated evidence deprived him of liberty.	McKinney argues no cognizable due process right is stated.	No cognizable due process claim.
Whether McKinney is entitled to qualified immunity on the asserted due process claim.	Right to due process was clearly established.	Right was not clearly established; claim fails.	McKinney entitled to qualified immunity.

Zahrey v. Coffey, 221 F.3d 342 (2d Cir. 2000) (due process right to liberty not to be deprived due to fabrication by investigating officers (Second Circuit))
Whitlock v. Brueggemann, 682 F.3d 567 (7th Cir. 2012) (fabricated evidence violating due process rights in prosecutorial investigation context)
Bielanski v. County of Kane, 550 F.3d 632 (7th Cir. 2008) (acquittal does not necessarily establish prejudice; Brady considerations discussed)
Parish v. City of Chicago, 594 F.3d 551 (7th Cir. 2009) (prejudice in a Brady context may be shown if suppression would have altered trial decision)
McCann v. Mangialardi, 337 F.3d 782 (7th Cir. 2003) (hybrid due process claims duplicative of Fourth Amendment/state-law claims rejected)
Albright v. Oliver, 510 U.S. 266 (1994) (explicit textual protection governs rights; avoid substantive due process when a specific amendment applies)
Lewis v. Mills, 677 F.3d 324 (7th Cir. 2012) (prosecutors not entitled to absolute immunity for investigatory acts)
Buckley v. Fitzsimmons, 509 U.S. 259 (1993) (absolute immunity limitations for prosecutors during investigative/administrative actions)
Snodderly v. R.U.F.F. Drug Enforcement Task Force, 239 F.3d 892 (7th Cir. 2001) (statute of limitations for false arrest claim accrues at arrest)