Kerr v. Lyford

EDITH H. JONES, Circuit Judge,

specially concurring:

I concur in the good opinion in this case, but I write to express my continuing dissatisfaction with this circuit’s handling of a constitutional tort for malicious prosecution. In 1991,1 questioned whether such a constitutional tort was authorized under the rubric of “substantive due process.”1 In 1994, the U.S. Supreme Court agreed that if a constitutional tort of malicious prosecution exists at all, it would have to be based on the Fourth Amendment rather than Fourteenth Amendment substantive due process.2 But the Albright plurality, rather…