ASSOCIATED PRESS WRITER

TOM STRONG

WASHINGTON (AP)—A Macomb, Ill., native who wants to sue the city and a police detective for malicious prosecution takes his appeal Tuesday to the Supreme Court.

The court can use the case of Kevin Albright to decide whether people who claim to be targets of malicious prosecution but were never jailed may sue for damages in federal court.

A federal judge dismissed the lawsuit, and the 7th U.S. Circuit Court of Appeals agreed last year. The Supreme Court in March agreed to hear oral arguments.

Albright was charged in October 1987 with selling a cocaine ‘‘look-alike’‘—which actually was baking powder—to a police informant the previous July 17.

Albright was charged after Macomb Police Detective Roger Oliver first got an indictment against his father, then transferred the charges to Albright’s brother, before finally settling on Kevin Albright, a senior at Western Illinois University.

Albright remained free on bond, and a state circuit court dismissed the charges against him in June 1988.

Albright, who now lives in St. Louis, sued Oliver and the city under a federal civil rights law, saying they had deprived him of his constitutionally protected due-process rights.

‘‘More than anything government does to the individual, except actual incarceration or execution, public prosecution is the most intrusive and violative of the right ‘to be let alone,’‘’ Albright’s lawyer, John Bisbee, said in legal papers.

The city’s chief lawyer, James Sotos, wrote that the right to counsel and a fair jury trial ‘‘generally enable the innocent to count on the system to exonerate them, which is exactly what occurred in this instance.’‘

The appeals court ruling last year noted that Kevin Albright did not contend the prosecution made him unemployable or that he was put in jail or forced to stand trial.

‘‘In the absence of incarceration or other palpable consequences, we do not think it (malicious prosecution) should be actionable as a constitutional wrong.’‘

The American Civil Liberties Union, in a brief supporting Albright, said the case is about the abuse of government authority rather than injury to one’s reputation, despite the appeals court’s ruling.

‘‘A criminal justice system that persecutes the innocent through baseless prosecutions is not fundamentally different than a criminal justice system that permits persecution of the innocent by private vigilantes, like the Ku Klux Klan,’‘ the ACLU said.

The police detective had hired an informant who said she used police money to buy cocaine from more than 50 people during the spring and summer of 1987.

Based on information she gave, Oliver first obtained a county grand jury indictment against Albright’s father, John Albright Jr., in the July 17 purchase.

After John Albright Jr.’s wife said she doubted her husband would sell cocaine in a student transient hotel, Oliver replaced his name on the arrest warrant with that of his son, John David Albright, according to the lawsuit.

But John David Albright told Oliver he was living in Chicago at the time of the alleged sale. Oliver then consulted the informant, who agreed that Kevin Albright might have made the sale.

Oliver filed a criminal information and arrest warrant against Kevin Albright. The officer later testified that Kevin Albright had been the seller, but Oliver did not mention that he had previously accused the man’s brother and father of the same offense.