                                                           FILED
                                               United States Court of Appeals
                UNITED STATES COURT OF APPEALS         Tenth Circuit

                       FOR THE TENTH CIRCUIT                        April 17, 2018
                       _________________________________
                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court
ZANE SCHOENFELD,

       Plaintiff - Appellant,

v.                                                     No. 17-1299
                                          (D.C. No. 1:16-CV-02630-MSK-NYW)
TRAVIS SIDES, 13th Judicial                             (D. Colo.)
District, Deputy District Attorney in
his personal capacity for damages,

       Defendant - Appellee,

and

GERARD O’HALLORAN,
Washington County Deputy Sheriff
in his personal capacity for
damages; KRISTEN THOMPSON,
13th Judicial District Probation
Officer in her personal capacity for
damages,

       Defendants.
                        _________________________________

                        ORDER AND JUDGMENT *
                        _________________________________


*
      Because oral argument would not materially aid our consideration of
the appeal, we have decided the appeal based on the briefs. See Fed. R.
App. P. 34(a)(2); 10th Cir. R. 34.1(G).

      This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value under
Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A).
Before TYMKOVICH, Chief Judge, BACHARACH, and MORITZ,
Circuit Judges.
                 _________________________________

      This appeal involves the distinction between claims of false arrest

and malicious prosecution. When someone is falsely arrested or

maliciously prosecuted, state actors face potential liability under 42 U.S.C.

§ 1983. But the two claims differ: The claim of malicious prosecution is

confined to seizures (for purposes of the Fourth Amendment) based on

“‘legal process’” like a warrant. Wilkins v. DeReyes, 528 F.3d 790, 798

(10th Cir. 2008) (quoting Mondragón v. Thompson, 519 F.3d 1078, 1083

(10th Cir. 2008)). The tort of false arrest is confined to seizures

undertaken without legal process. Wallace v. Kato, 549 U.S. 384, 389-90

(2007).

      In this case, Mr. Zane Schoenfeld sued under § 1983, claiming that

he had been arrested without probable cause. The arrest grew out of Mr.

Schoenfeld’s status as a registered sex offender. Law-enforcement officers

learned that Mr. Schoenfeld had not registered a new social-media account,

and this information led to the issuance and execution of an arrest warrant.

Though Mr. Schoenfeld was arrested, the State eventually realized that he

had no obligation to register his new social-media account. With this

realization, the State dismissed the charges against Mr. Schoenfeld. But

not before he was jailed and fired from his job.



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      In the ensuing litigation, the district court dismissed the cause of

action against the prosecutor, concluding that Mr. Schoenfeld had failed to

state a valid claim. We engage in de novo review, considering the

allegations in the complaint in the light most favorable to Mr. Schoenfeld.

See Lincoln v. Maketa, 880 F.3d 533, 537 (10th Cir. 2018).

      Engaging in de novo review, we conclude that the dismissal was

correct. False arrest or malicious prosecution can result in a constitutional

violation, but we analyze the two claims differently. Wilkins v. DeReyes,

528 F.3d 790, 798-99, 799 n.5 (10th Cir. 2008). Mr. Schoenfeld’s

allegations would ordinarily entail malicious prosecution, not false arrest,

because the arrest was based on a warrant—a classic form of legal process.

Id. at 799.

      But in the amended complaint, Mr. Schoenfeld expressly disavowed

any claim against the prosecutor for malicious prosecution. See Appellant’s

App’x at 17 (“The Plaintiff is not suing [the prosecutor] for Malicious

Prosecution.”); id. at 18 (“[The prosecutor] is not sued for malicious

prosecution.”). “A litigant is not entitled to disavow a claim before one

court only to spring it on his opponent at the next stage of the

proceedings.” Simmat v. U.S. Bureau of Prisons, 413 F.3d 1225, 1239-40

(10th Cir. 2005). Mr. Schoenfeld not only disavowed a malicious-




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prosecution theory in district court but also failed to address this theory in

our court. As a result, we affirm.


                                       Entered for the Court


                                       Robert E. Bacharach
                                       Circuit Judge




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