Attorney can’t recast untimely 4th Amendment claim against prosecutor

The Muncie attorney who sued former Delaware County Prosecutor Mark McKinney, alleging due process violations following his arrest and acquittal on conspiracy to commit bribery charges, lost his appeal before the 7th Circuit Court of Appeals. The judges found the attorney was trying to recast an untimely false arrest claim into a due process claim.

Michael Alexander and McKinney butted heads over the years on McKinney’s handling of drug forfeitures involving local law enforcement’s drug task force while McKinney was deputy prosecutor. McKinney was suspended by the Indiana Supreme Court in 2011 after he was no longer prosecutor for his involvement in prosecuting the drug offender cases while pocketing assets seized from defendants in those cases.

After he was elected prosecutor in 2007, the 7th Circuit Court opinion says McKinney sought a way to punish Alexander as an outspoken critic.

Alexander’s colleague, Jeff Hinds, was under investigation by the FBI for possible involvement in a bribery scheme. The FBI originally decided Alexander wasn’t involved, but later allegedly worked with McKinney to bring false charges against Alexander. False and misleading evidence was gathered and submitted to a special prosecutor on conspiracy to commit bribery charges in 2007. That prosecutor was unaware the evidence was false or altered. A jury acquitted Alexander of the charges in 2009. More than a year later, Alexander sued McKinney and the FBI agents. McKinney filed a motion to dismiss, which the District Court granted, finding he was entitled to qualified immunity because Alexander didn’t allege that he was deprived of a cognizable constitutional right.

The 7th Circuit affirmed, finding that Alexander was trying to circumvent his failure to file a timely Fourth Amendment claim for false arrest and his decision to not file a state law malicious prosecution claim. The Circuit Court has squarely rejected similar cases to Alexander’s, where a plaintiff tries to file a due process claim when other state law and constitutional claims are unavailable. He should have used the Fourth Amendment, not the due process clause, to challenge the lawfulness of his arrest, Judge Michael Kanne wrote.