First Circuit Reaffirms Strict Raise‑or‑Waive in Collateral Estoppel Disputes: Shabshelowitz v. Rhode Island Department of Public Safety

Introduction

This First Circuit decision underscores a familiar but unforgiving appellate principle: parties must preserve their arguments in the district court or forfeit them on appeal. In a diversity action for malicious prosecution brought by Harlan Shabshelowitz against the Rhode Island Department of Public Safety, the Rhode Island State Police, and a state police lieutenant, the court affirmed summary judgment for defendants on collateral estoppel grounds—not by endorsing the merits of the estoppel theory, but because the plaintiff failed to timely contest two key prongs of Rhode Island collateral estoppel law in the district court.

The case traces back to a 2013 grand jury indictment charging Shabshelowitz with obtaining money under false pretenses and conspiracy in a mortgage-fraud scheme. After an evidentiary hearing before a Rhode Island Superior Court Magistrate and de novo review by an Associate Justice who adopted (and supplemented) the Magistrate’s conclusions, the state court denied his motions to dismiss. The State later entered a nolle prosequi in 2017 as part of a co-defendant’s plea arrangement, and in 2020, Shabshelowitz filed this civil malicious prosecution suit. When defendants moved for summary judgment, they argued collateral estoppel barred relitigation of issues he had lost in state court concerning alleged prosecutorial and grand jury misconduct. In response, the plaintiff challenged only the “identity of issues” prong. The district court rejected that challenge and granted summary judgment.

On appeal, however, the plaintiff abandoned the identity-of-issues argument and instead contended that Rhode Island’s collateral estoppel requirements were not satisfied because there had been no final judgment and because the lack of Rhode Island Supreme Court appellate review deprived him of a full and fair opportunity to litigate. The First Circuit refused to consider those contentions, holding that the plaintiff waived them by not raising them below and that no exception to the “raise-or-waive” rule applied.

Summary of the Opinion

Writing for a unanimous panel, Judge Lynch affirmed the district court’s grant of summary judgment. The court reiterated that, under 28 U.S.C. § 1738 principles as implemented in this circuit, federal courts apply state preclusion law to assess the effect of prior state-court proceedings. It cited Rhode Island’s three-pronged collateral estoppel test:

Identity of issues;
Final judgment on the merits in the prior proceeding; and
Same party or privy against whom estoppel is asserted.

The First Circuit did not reach whether those prongs were satisfied on the merits. Instead, it held that the only arguments the plaintiff advanced in the district court targeted the first prong (identity of issues), and he later conceded that prong on appeal. His new appellate attacks on the “final judgment” and “full and fair opportunity” components were therefore waived. The court found no “exceptional” or “unique” circumstances warranting an exception to the raise-or-waive doctrine and noted the prejudice that would follow from entertaining new theories years into the litigation.

In a footnote, the court also explained that even if the “full and fair opportunity” argument were not waived, it would fail in any event given the evidentiary hearing before the Magistrate, the Associate Justice’s de novo review and adoption of that decision, and the plaintiff’s opportunity to present evidence and testimony. But the holding of the case rested solely on waiver; the court expressly declined to reach the merits of the preclusion arguments.

Analysis

Precedents Cited and Their Role

McCrory v. Spigel (In re Spigel), 260 F.3d 27, 33 (1st Cir. 2001) — The court reiterated the settled principle that federal courts must look to state law to determine the preclusive effect of a prior state-court judgment. This frames the analysis and directs the court to apply Rhode Island’s collateral estoppel law.
Osifodunrin v. Desjardins, 333 A.3d 502, 504 (R.I. 2025) — Cited for Rhode Island’s three-part test for collateral estoppel: identity of issues, final judgment on the merits, and same party or privity. This case supplied the doctrinal elements that the district court applied and the appellant sought to contest on appeal.
Nat’l Ass’n of Social Workers v. Harwood, 69 F.3d 622, 627 (1st Cir. 1995) and United States v. Slade, 980 F.2d 27, 30 (1st Cir. 1992) — These authorities articulate the First Circuit’s strict “raise-or-waive” rule: arguments not presented to the district court cannot be unveiled for the first time on appeal. The court relied on these to hold the appellant’s new arguments forfeited.
Teamsters Local 59 v. Superline Transportation Co., 953 F.2d 17, 21 (1st Cir. 1992) and Iverson v. City of Boston, 452 F.3d 94, 102 (1st Cir. 2006) — These cases underscore that absent exceptional circumstances, the First Circuit will not entertain new legal theories on appeal. The opinion quoted Teamsters’ statement that “absent the most extraordinary circumstances, legal theories not raised squarely in the lower court cannot be broached for the first time on appeal.”
Sindi v. El‑Moslimany, 896 F.3d 1, 28 (1st Cir. 2018) and Curet‑Velázquez v. ACEMLA de P.R., Inc., 656 F.3d 47, 53 (1st Cir. 2011) — These authorities refine the contours of the exceptions to waiver and emphasize that the bar for “sufficiently compelling” circumstances to excuse waiver is high. The court found no such circumstances here.
Dahua Tech. USA, Inc. v. Zhang, 138 F.4th 1, 10 (1st Cir. 2025) — Cited for a narrow “unique circumstances” path under which an appellate court may consider an issue not squarely presented below if the district court nonetheless reached it. The court found no comparable circumstances in this case.
Seddon v. Bonner, 755 A.2d 823, 828 (R.I. 2000) — Invoked in a footnote to support the district court’s conclusion that the state proceedings afforded a full and fair opportunity to litigate. The First Circuit signaled that even if the argument had not been waived, the thorough evidentiary process satisfied Rhode Island’s fairness expectations for issue preclusion.

Legal Reasoning

The panel’s reasoning unfolds in three steps:

Choice of law for preclusion. Because the asserted preclusion derives from state-court proceedings, the First Circuit looks to Rhode Island law to define collateral estoppel’s elements and operation, consistent with McCrory (In re Spigel).
Identification of the arguments actually preserved below. In opposing summary judgment, the plaintiff challenged only the “identity of issues” prong, contending that his malicious prosecution claim did not align with the issues litigated in his state-court motions to dismiss. The district court rejected that argument and entered judgment for defendants. On appeal, however, he pivoted, conceding identity of issues and instead asserting that (a) there was no “final judgment” under Rhode Island law, and (b) he lacked a full and fair opportunity to litigate because appellate review in the Rhode Island Supreme Court was ostensibly unavailable.
Application of the raise‑or‑waive rule. The court held that arguments about “final judgment” and “full and fair opportunity” were waived because they were not raised in the district court—even though defendants flagged those elements and argued them at summary judgment. The panel found no basis to excuse waiver:
- There were no “exceptional” or “unique” circumstances justifying review of new arguments.
- The plaintiff offered no claim of inadvertence; rather, the record suggested a strategic choice to focus solely on identity of issues and then abandon that position on appeal.
- Prejudice considerations weighed against excusing waiver, particularly given the significant passage of time: a decade since the grand jury proceedings, eight years since the state motion hearings, and more than a year and a half since the summary judgment motion.

Given this posture, the court expressly declined to reach “the merits of any of Shabshelowitz’s arguments” on collateral estoppel. Nonetheless, it observed in a footnote that the state proceedings—comprising an evidentiary hearing before the Magistrate, de novo review and adoption by an Associate Justice, and the opportunity to present evidence and witness testimony—would suffice to establish a full and fair opportunity to litigate for purposes of issue preclusion.

Impact and Implications

Although the opinion does not announce a new substantive preclusion rule, it delivers several practical and doctrinal signals with implications for civil litigation in federal courts applying Rhode Island law (and more broadly within the First Circuit):

Preserve every prong of collateral estoppel in the district court. When preclusion is invoked at summary judgment, a nonmovant must challenge each applicable element—or risk forfeiture. Here, defendants squarely argued identity of issues, finality, and privity/full-and-fair opportunity; the plaintiff’s decision to contest only identity of issues doomed his later appellate shift.
The First Circuit’s raise-or-waive doctrine remains stringent. The court’s refusal to consider new appellate theories reaffirms that strategic choices in the district court bind parties on appeal. Assertions that appellate review was unavailable in the state system, or that the prior decision lacked “finality,” must be made early or not at all.
State proceedings with evidentiary hearings carry preclusive weight. While the court did not reach the merits, its footnote signals that when state proceedings include an evidentiary hearing, witness testimony, and de novo review, they will typically satisfy the “full and fair opportunity” requirement. This is particularly true under Rhode Island practice, where Rule of Practice 2.9(h) authorizes an Associate Justice to conduct a de novo determination on a Magistrate’s decision, often on the existing record but with discretion to take further evidence.
Practical effect in malicious prosecution suits. Plaintiffs who seek to relitigate grand jury misconduct or probable cause issues already tested in state criminal proceedings face a high bar. Even if a nolle prosequi later terminates the prosecution, a prior adverse decision on grand jury misconduct may preclude relitigation of those issues in a subsequent civil case—provided all preclusion elements are met. The First Circuit’s opinion ensures that litigants cannot evade preclusion by raising dispositive objections only on appeal.
Limited scope of exceptions to waiver. The opinion draws a firm line around the “exceptional” or “unique circumstances” exceptions to waiver. References to Dahua Tech. v. Zhang confirm that those exceptions are narrow and will not be stretched to rescue arguments that could and should have been made earlier. Passage of time and potential prejudice strengthen the case for enforcing waiver.

For defense counsel, the decision provides a road map: where a plaintiff previously litigated and lost core issues in state criminal proceedings, move early for summary judgment on collateral estoppel and put the plaintiff to the task of contesting each prong. For plaintiffs, the lesson is equally clear: address every preclusion element head-on in the district court, with focused arguments and supporting authority, to preserve appellate review.

Complex Concepts Simplified

Collateral estoppel (issue preclusion): A doctrine that prevents a party from relitigating an issue that was actually litigated and necessarily decided in a prior proceeding, where (under Rhode Island law) (1) the issue is identical, (2) there was a final judgment on the merits, and (3) the party against whom estoppel is asserted is the same or in privity with a party from the earlier case.
Final judgment on the merits: Not merely a procedural ruling; it reflects a decision that substantively resolves an issue. In the preclusion context, “finality” can be more functional than formal, focusing on whether the earlier decision was sufficiently firm and fully litigated. The First Circuit in this case did not decide whether Rhode Island’s finality requirement was satisfied because the argument was waived.
Full and fair opportunity to litigate: A fairness safeguard. Even if the formal elements are met, courts will not apply issue preclusion if the party lacked a meaningful chance to present evidence and argument. Here, the First Circuit indicated that the combination of an evidentiary hearing, witness testimony, and de novo review in Rhode Island Superior Court supports finding that such an opportunity existed.
Raise‑or‑waive doctrine: An appellate rule holding that arguments not presented to the trial court are generally forfeited on appeal. Exceptions are narrow and require “extraordinary” or “unique” circumstances, which were absent here.
Nolle prosequi: A prosecutor’s decision to discontinue charges. While a nolle prosequi may qualify as a favorable termination for malicious prosecution purposes, it does not automatically erase prior state-court determinations that can have preclusive effect on discrete issues.
De novo review of magistrate decisions (R.I. Super. Ct. Rule of Practice 2.9(h)): An Associate Justice reviews the portions of a Magistrate’s decision appealed by a party, may accept, reject, or modify the decision, and can base the determination on the existing record or receive further evidence. This structure supports the robustness of the state court’s adjudication for preclusion analysis.
Summary judgment based on collateral estoppel: A court can grant judgment without trial when there is no genuine dispute of material fact and the movant is entitled to judgment as a matter of law. If issue preclusion applies to a dispositive element of the claim, summary judgment is appropriate.

Conclusion

Shabshelowitz v. Rhode Island Department of Public Safety is a procedural but potent reminder that appellate courts will strictly enforce preservation rules, particularly in complex preclusion disputes. The First Circuit affirmed summary judgment not because it resolved the difficult questions of “final judgment” or “full and fair opportunity” under Rhode Island collateral estoppel doctrine, but because the appellant failed to press those arguments in the district court and could not satisfy the narrow exceptions to the raise-or-waive rule.

Three takeaways stand out. First, when faced with a collateral estoppel defense, litigants must engage each prong in the trial court, backed by authority and record citations. Second, Rhode Island criminal proceedings that include evidentiary hearings and de novo judicial review are likely to satisfy the “full and fair opportunity” safeguard for preclusion purposes, a point the First Circuit flagged even while resting its affirmance on waiver. Third, the First Circuit will not rescue strategically withheld arguments on appeal, especially where delay would prejudice the opposing party.

In short, the decision fortifies the First Circuit’s exacting preservation requirements in the collateral estoppel context and offers cautionary guidance to practitioners: preclusion battles are won or lost in the district court, and the window to make your best arguments opens only once.