A Second Circuit panel ruled Friday that two former criminal defendants could sue police officers for fabricating evidence used against them in court without having to demonstrate absolute innocence in their underlying cases, reversing two district courts' decisions.

The three-judge panel said two separate civil suits brought by two New Yorkers, Andrew Smalls and Deshawn Daniel, against officers of the New York Police Department and the City of New York can proceed and remanded the cases.

In an order and opinion, the panel clarified an issue on which lower courts are deeply divided, finding that police officers who fabricate evidence can be sued for violating constitutional rights to due process, regardless of whether plaintiffs are completely innocent.

The panel, made up of two appellate judges, Robert D. Sack and Steven J. Menashi, and a district judge, Lewis A. Kaplan, remanded the cases to their lower courts in Manhattan and Brooklyn.

Joel B. Rudin, a prominent civil rights lawyer who represented Smalls, said the decision is consequential.

"It resolves, at least within the Second Circuit, a very important issue that had the potential to largely undermine the ability to bring an evidence-fabrication claim," Rudin told Law360 after the ruling. "It's an across-the-board victory and clarifies the law in a way that's clearly favorable for civil plaintiffs."

The Second Circuit decision also sets a standard affirming that an adjournment in contemplation of dismissal counts as favorable termination and allows a former criminal defendant to sue police for evidence fabrication. It also means that in cases resolved through plea bargain, where the defendants are required to plead guilty to reduced charges, they may be able to still sue as long as their civil claims don't conflict with their pleas.

"That's really important," Rudin said. "When cases are reversed on appeal for misconduct, prosecutors will frequently try to pressure defendants to plead to something to protect the city and police officers from a potential lawsuit."

Under the ruling, police officers would not be necessarily protected when defendants plead to charges, then come back and sue.

In the order, the judges sent a message to district attorneys, saying they have an obligation to represent the people of the state and a duty to exercise independent judgment.

"It is not the job of prosecutors to insulate the City of New York from liability," the opinion says.

In both cases, the city of New York argued that the same analysis that applies in cases of malicious prosecution, which requires a defendant to prove innocence before being able to sue, applies to cases of evidence fabrication.

In its reasoning, the city relied on a strict interpretation of a 2019 U.S. Supreme Court decision in McDonough v. Smith, which clarified that criminal defendants can sue for evidence fabrication after prosecutions against them ended favorably. In the context of a malicious prosecution claim, which challenges a criminal case altogether, that means a plaintiff must show that underlying cases ended with an affirmation of innocence — a high bar in a justice system requiring only to prove guilt beyond a reasonable doubt.

In the Smalls and Daniel civil cases, the city argued the same strict favorable termination standards, which the Supreme Court will rule on in the fall, apply to the evidence-fabrication claims. Those claims are narrower in nature — they only attack the legality of evidence in a case, not the case itself.

U.S. District Judge Carol Bagley Amon for the Eastern District of New York and U.S. District Judge Ronnie Abrams for the Southern District of New York tossed the suits brought by Smalls and Daniel, respectively, saying they lacked standing based on the McDonough ruling.

In their underlying criminal cases in state court, Smalls and Daniel were each prosecuted for criminal possession of a weapon. Smalls was also charged with trespassing.

In Smalls' case, police officers testified that they saw him pass a gun to another person during a chase, which began after the officers heard a gunshot coming from a public housing building in Queens, in May 2006, and saw a group of people walking away. Smalls was later convicted and served over two years in prison.

On appeal, the Appellate Division, Second Department, reversed Smalls's conviction. The court held that the trial court should have excluded the physical evidence in the case — the firearm — because the police "lacked reasonable suspicion" to pursue Smalls.

In April 2014, Smalls sued the police officers and the city, claiming both malicious prosecution and fabricated evidence. The case went to trial, and in May 2019, a jury found that the officers had violated Small's rights and awarded him $60,000 in damages.

The city later moved to vacate the judgment, claiming Smalls had not satisfied the favorable termination requirements set by the McDonough case. On March 16, 2020, Judge Amon granted the motion to vacate the verdict.

During oral arguments held virtually before the Second Circuit panel in March of this year, Rudin argued the act of fabricating evidence threatens the rights of criminal defendants to a fair trial protected by the Constitution, and that whether they turn out to be innocent is irrelevant.

"Innocence is not the point, but the corruption of the trial process is," Rudin told the judges then.

On Friday, they agreed with him.

Daniel's case arose from an encounter with police officers in March 2015. Officers claimed he had made an illegal turn and searched his car without his consent. Finding nothing, they took him to the precinct, where they strip-searched him.

An officer later allegedly falsified a charge, saying Daniel was found with a butterfly knife, although he didn't have one. His case was dismissed after he accepted an adjournment in contemplation of dismissal.

In April 2018, Daniel sued the officers and the city in federal court, claiming racial discrimination, unlawful search and seizure, excessive force, failure to intervene and deprivation of a fair trial through the use of fabricated evidence. He also brought a Monell claim, named after the 1978 case Monell v. Department of Social Services of the City of New York, with which a plaintiff can sue a municipality claiming it knowingly adopted policies that violated people's rights.

In March 2019, all of Daniel's claims were dismissed, except evidence fabrication, which Judge Abrams eventually dropped, citing the high court's decision in McDonough. In his order, the judge said Daniel's acceptance of the adjournment in contemplation of dismissal didn't satisfy the favorable termination requirement, namely a disposition that affirmed his innocence. Daniel later appealed.

One of Daniel's lawyers, Gregory Antollino, welcomed the appellate court decision Friday.

"I'm very happy with the decision, and the decision speaks for itself," he said.

In a comment Friday afternoon, the city's Law Department, which represents the city and the officers, declined to elaborate on the Second Circuit's decision and whether it plans to request an en banc review.

"The court has spoken, and we accept its decision," a spokesman for the department said.

Andrew Smalls is represented by Joel B. Rudin Matthew A. Wasserman and Jacob Loup of the Law Offices of Joel B. Rudin PC, and Jon L. Norinsberg of the Law Offices of Jon L. Norinsberg.

Deshawn Daniel is represented by Gregory Antollino of Antollino PLLC and Stephen Bergstein of Bergstein & Ullrich.

The city and the officers are represented by John Moore, Richard Paul Daring and Devin Slack for James E. Johnson, Corporation Counsel of the City of New York.

The cases are Smalls v. Collins et al., case number 20-1099-cv, and Daniel v. Taylor et al., case number20-1331-cv, in the Second Circuit.

--Editing by Rich Mills.