Gallo v. City of Philadelphia

Opinions of the United

1998 Decisions States Court of Appeals

for the Third Circuit

11-23-1998

Gallo v. City of Philadelphia

Precedential or Non-Precedential:

Docket 98-1071,98-1238

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Filed November 23, 1998

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 98-1071 and 98-1238

JAMES J. GALLO, JR.;

ROSE MARIA GALLO,

Appellants

v.

CITY OF PHILADELPHIA; RENALD PELSZYNSKI, LT.,

individually and in his official capacity; JOSEPH RIZZO,

individually; MITCHELL S. GOLDBERG, individually;

GERALD J. KUFTA, individually; KUFTA ASSOCIATES;

COZEN & O'CONNOR; PENNSYLVANIA LUMBERMEN'S

MUTUAL INSURANCE COMPANY; *THOMAS J. ROONEY,

in his individual capacity; WILLIAM J. CAMPBELL, in his

individual capacity

*Amended per Clerk's 4/7/98 order

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civ. No. 96-03909)

Argued October 8, 1998

BEFORE: GREENBERG, NYGAARD, and NOONAN,*

Circuit Judges

(Filed: November 23, 1998)

_________________________________________________________________

*Honorable John T. Noonan, Jr., Senior Judge of the United States Court

of Appeals for the Ninth Circuit, sitting by designation.

David Rudovsky (argued)

Kairys, Rudovsky, Epstein,

Messing & Rau

924 Cherry St., Suite 500

Philadelphia, PA 19107

Franklin E. Fink

David Lockard & Assoc. P.C.

1101 Market St., Suite 2832

Philadelphia, PA 19107

Attorneys for Appellant

City of Philadelphia

Law Department

Stephanie L. Franklin-Suber

City Solicitor

Marcia Berman (argued)

Assistant City Solicitor,

Appeals Unit

One Parkway Building

1515 Arch Street, 17th Floor

Philadelphia, PA 19102-1595

Attorneys for Appellees

Lt. Renald Pelszynski and

City of Philadelphia

Michael R. Stiles

United States Attorney

Joan K. Garner (argued)

Deputy Chief, Civil Division

Assistant United States Attorney

615 Chestnut Street

Suite 1250

Philadelphia, PA 19106-4476

Attorneys for Appellees

Thomas J. Rooney and

William J. Campbell

2

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. INTRODUCTION

After a jury acquitted him of charges that he deliberately

had set fire to his business in Philadelphia, James Gallo

brought suit under 28 U.S.C. S 1983 and Bivens v. Six

Unknown Named Agents of Fed. Bureau of Narcotics, 403

U.S. 388, 91 S.Ct. 1999 (1971), against the City of

Philadelphia and the municipal and federal officials

responsible for investigating his case.1 Gallo claimed that

the municipal fire marshal had altered his views on the

fire's cause in response to pressure from representatives of

Gallo's insurance company, and that all of the officials had

withheld exculpatory evidence from the United States

Attorney. The district court, construing Gallo's suit as a

claim of malicious prosecution, concluded that the

Supreme Court's recent decision in Albright v. Oliver, 510

U.S. 266, 114 S. Ct. 807 (1994), required Gallo to show

that he had suffered a Fourth Amendment seizure. The

court ruled that the pretrial restrictions imposed upon

Gallo, which included posting a bond and limiting inter-

state travel, did not amount to a seizure. It therefore

granted the City and municipal defendants' summary

judgment motion and the federal officials' motion to

dismiss. See Gallo v. City of Philadelphia, 975 F. Supp. 723

(E.D. Pa. 1997). Because we conclude that the intentional

restrictions imposed on Gallo's liberty qualified as a

seizure, we will reverse. We have jurisdiction under 28

U.S.C. S 1291; the district court had subject matter

jurisdiction based on 28 U.S.C. SS 1331, 1343(a) and 1367.

_________________________________________________________________

1. In the district court, Gallo's case involved additional defendants and

claims. We, however, only need discuss the section 1983 and Bivens

claims against the appellees as the other defendants and claims have

been dismissed.

3

II. FACTUAL AND PROCEDURAL HISTORY

A. Factual History

Inasmuch as the district court resolved this case by

granting a motion to dismiss and a motion for summary

judgment, we consider the facts in the light most favorable

to Gallo. See Smith v. National Collegiate Athletic Ass'n, 139

F.3d 180, 183 (3d Cir.), cert. granted and denied, 119 S.Ct.

31, 170 (1998); Hilfirty v. Shipman, 91 F.3d 573, 577 (3d

Cir. 1996). On June 11, 1989, a fire extensively damaged

Gallo's Cabinets, a shop in Philadelphia owned by

appellant, James Gallo. Lt. Renald Pelszynski, a

Philadelphia fire marshal dispatched to the scene to

establish the fire's cause, concluded that thefire started

when a hand iron ignited a cloth. Pelszynski recorded his

conclusion about the fire's origin in a Fire Marshal's

Incident Report. Gallo claims that nothing in this report

suggested that the fire resulted from arson.

After the fire, Gallo filed a claim with Pennsylvania

Lumberman's Mutual Insurance Company, which indirectly

employed two persons to investigate the fire's cause, Gerald

Kufta and Joseph Rizzo. Kufta is an investigator and Rizzo

is a former Philadelphia Fire Commissioner. Kufta and

Rizzo contacted Lt. Pelszynski to discuss the fire's

circumstances without complying with Fire Department

procedures that required them to apply in writing to speak

to Pelszynski. The record does not include any

documentation of the substance of their conversations.

Gallo claims that after Pelszynski spoke to Kufta and

Rizzo, he changed his Fire Marshal's Incident Report in two

primary ways. First, he altered the cause of fire entry from

electrical appliance to incendiary, thus suggesting arson.

Second, he added text to the report stating his view that

someone deliberately had wrapped a cloth around the

heating iron to start the fire. Gallo claims that Pelszynski

never disclosed the existence of the "original" report, and

that, in fact, he took steps to conceal it.

After filing the allegedly revised report, Pelszynski

referred Gallo's case to the joint Philadelphia-Federal arson

task force. The United States Attorney's Office opened a

criminal investigation in July 1990, and Thomas Rooney

4

and William Campbell, agents from the Bureau of Alcohol,

Tobacco & Firearms, were assigned to the case.

Subsequently, Rooney prepared a report in which he stated

that the Fire Marshal's office had ruled that the origin of

the fire was incendiary and in which he made no mention

of Pelszynski's original report.

On May 31, 1994, a federal grand jury indicted Gallo on

two counts of mail fraud, one count of malicious

destruction of a building by fire, and one count of making

false statements to obtain a loan. After responding to a

notice, Gallo was arraigned on the charges on August 4,

1994, and was released on a $10,000 personal

recognizance bond. He never was arrested, detained, or

handcuffed. As a condition of his release, the court

prohibited Gallo from traveling beyond New Jersey and

Pennsylvania and instructed him to contact Pretrial

Services weekly. These restrictions remained in effect

through Gallo's trial in March 1995, a period of over eight

months from when the court imposed them.

After the indictment, Gallo requested the United States

Attorney's Office to produce all exculpatory material, but

the government initially did not provide him with a copy of

the original fire marshal report. Moreover, neither Kufta,

Rizzo, nor Pelszynski produced this report in response to

Gallo's subpoenas seeking all materials in their possession

that related to the Gallo fire.

On January 6, 1995, approximately two months before

his trial, Gallo learned of the existence of Pelszynski's

original report when the United States Attorney's office

supplied it to him. The government claimed that the report

came from Rooney's files but that Rooney was unsure of its

origin.

Although Gallo pled guilty to the count of making a false

statement to obtain a loan, he went to trial on the other

counts of the indictment. During the trial, Gallo used

Pelszynski's original report to cross-examine him, but

Pelszynski claimed that he knew nothing about the report

and had concluded from the beginning of his investigation

that the fire at Gallo's Cabinets had been set intentionally.

The jury acquitted Gallo of all remaining charges in the

indictment.

5

B. Procedural History

Following his acquittal, Gallo filed two separate suits

alleging violations of his federal rights. In thefirst suit

under 42 U.S.C. S 1983, he claimed that the City of

Philadelphia, Pelszynski, Kufta and Rizzo, among others,

had caused the federal government to prosecute him

without probable cause. In the second suit, a Bivens action,

Gallo contended that Rooney and Campbell had deprived

him of his constitutional rights by failing to disclose the

existence of the "original" report until two months prior to

trial. The district court consolidated the cases.

Subsequently, the City of Philadelphia and Lt. Pelszynski

filed a motion for summary judgment arguing in part that

Gallo had suffered no constitutional injury justifying a

section 1983 action because he had not been "seized"

within the meaning of the Fourth Amendment. Rooney and

Campbell filed a motion to dismiss contending that they

had qualified immunity and that, in any case, failure to

turn over exculpatory material in a more timely manner

was not a constitutional injury.

The district court granted both of these motions for the

same reason in the same opinion and order. Construing

Gallo's complaint as alleging a claim of malicious

prosecution,2 the court found that the Supreme Court's

recent decision in Albright v. Oliver, 510 U.S. 266, 114 S.

Ct. 807, required Gallo to show a Fourth Amendment

violation in order to prove a constitutional injury. The court

then ruled that Gallo had failed to show such a violation

because the restrictions on his liberty pending and during

trial did not amount to a seizure. Thus, the court found

that he could not recover under either section 1983 or in a

Bivens action. The district court specifically did not rule on

whether Gallo had satisfied the common law elements of a

_________________________________________________________________

2. Decisions have "recognized that a S 1983 malicious prosecution claim

might be maintained against one who furnished false information to, or

concealed material information from, prosecuting authorities." 1A Martin

A. Schwartz & John E. Kirklin, Section 1983 Litigation, S3.20, at 316 (3d

ed. 1997).

6

malicious prosecution claim or whether the federal agents

were entitled to qualified immunity. Gallo then appealed.3

III. DISCUSSION

A. Did the Restrictions Imposed upon Gallo as Part of His

Criminal Prosecution Amount to a Seizure under the

Fourth Amendment?

The federal and municipal officials raise various

challenges in their brief to Gallo's claims in this appeal.4

_________________________________________________________________

3. Rooney and Campbell argue that we do not have jurisdiction to review

the district court's grant of their motion to dismiss because Gallo failed

to mention specifically the motion in his notice of appeal. After

considering this argument, we conclude that the notice sufficiently

informed them of Gallo's intent to appeal the order granting the motion.

Thus, we have jurisdiction to review the district court's decision to

dismiss Gallo's suit against them.

4. The appellees did not raise many of the arguments in the district court

that they advance on appeal, although Rooney and Campbell did claim

qualified immunity. As we have indicated "[t]his court has consistently

held that it will not consider issues that are raised for the first time

on

appeal." Harris v. Philadelphia, 35 F.3d 840, 845 (3d Cir. 1994). Thus,

we decline to address the appellees' arguments on issues other than

whether the restrictions imposed upon Gallo amounted to a seizure and

whether Rooney and Campbell have qualified immunity; the remaining

arguments may be addressed by the district court on remand.

We will not affirm the dismissal as to Rooney and Campbell based on

their qualified immunity claims. Under the qualified immunity doctrine,

a government official will be liable only if the plaintiff can show that

the

official violated clearly established law of which a reasonable person

should have known. See Harlow v. Fitzgerald, 457 U.S. 800, 818, 102

S.Ct. 2727, 2738 (1982). The relevant question is"whether that law was

clearly established at the time an action occurred." Harlow, 457 U.S. at

818, 102 S.Ct. at 2738. Rooney and Campbell suggest that the official

"action" Gallo protests is his post-indictment seizure, which began in

August 1994. In our view, however, the allegedly unlawful actions

occurred earlier, when Rooney and Campbell failed to provide

exculpatory material to the prosecutor. If, as the record suggests, all of

these actions occurred prior to 1994, then Rooney and Campbell are not

entitled to qualified immunity because the pre-Albright law of this

circuit

clearly provided that malicious prosecution violated federal law. See Lee

7

But the district court granted the motion to dismiss and

the motion for summary judgment on a single issue: it

concluded that Gallo had failed to show a constitutional

violation, as required by section 1983 and Bivens, because

the restrictions imposed on him did not qualify as a seizure

within the meaning of the Fourth Amendment. Our review

of a district court's decision to grant a motion to dismiss or

a motion for summary judgment is plenary. See Smith, 139

F.3d at 183; Reitz v. County of Bucks, 125 F.3d 139, 143

(3d Cir. 1997).

1. The effect of Albright v. Oliver on malicio us prosecution

claims in federal court

Before the Supreme Court's decision in Albright , we

permitted plaintiffs to bring malicious prosecution claims

under section 1983 by merely alleging the common law

elements of the tort. See Lee v. Mihalich, 847 F.2d 66, 69-

70 (3d Cir. 1988). Our cases held that by proving a

violation of the common law tort, a plaintiff proved a

violation of substantive due process that could form the

basis for a section 1983 suit. See, e.g., Lippay v. Christos,

996 F.2d 1490, 1502 (3d Cir. 1993).

_________________________________________________________________

v. Mihalich, 847 F.2d 66, 70 (3d Cir. 1988) (stating that "the elements of

liability for the constitutional tort of malicious prosecution under S

1983

coincide with those of the common law tort"); see also United States v.

Lanier, 117 S.Ct. 1219, 1226 (1997) (suggesting that decisions of the

Courts of Appeals are sufficient to make a right"clearly established");

Pro

v. Donatucci, 81 F.3d 1283, 1291-92 (3d Cir. 1996) (assuming that

decisions of this court can clearly establish a right for qualified

immunity purposes); Medina v. City and County of Denver, 960 F.2d

1493, 1498 (10th Cir. 1992) ("in order for the law to be clearly

established, there must be a Supreme Court or Tenth Circuit decision on

point").

We are not to be understood that the withholding of exculpatory

information always will deprive a public official of qualified immunity.

After all, some information may be tangential or the prosecutor may

obtain it from another source. Here, however, the information in the

original report goes to the essence of the arson charges. Finally, we note

that our decision on the qualified immunity issue is without prejudice to

any of the individual appellees seeking qualified immunity on remand.

Perhaps the factual predicate for the defense may change.

8

Albright, however, casts doubt on the holding of cases

like Lee by suggesting that a plaintiff bringing a malicious

prosecution claim must allege a claim based on explicit

constitutional text, "not the more generalized notion of

substantive due process." 510 U.S. at 273, 114 S. Ct. at

813 (citations omitted). Although we addressed a post-

Albright malicious prosecution claim in Hilfirty v. Shipman,

91 F.3d 573, the only relevant issue before us in that case

was whether a grant of nolle prosequi satisfied the common

law requirement that the prosecution end in the plaintiff's

favor. See id. at 579. Similarly, in Montgomery v. DeSimone,

No. 97-5179 (3d Cir. Oct. 16, 1998), we addressed only the

absence of probable cause element of malicious prosecution

claims. Thus, this case is our first occasion to consider

Albright's holding that section 1983 malicious prosecution

claims must show more than a substantive due process

violation.

Albright involved a baseless drug charge. See 510 U.S. at

268, 114 S.Ct. 810. After learning that a warrant had

issued for his arrest, Albright surrendered to the

authorities and was released after posting a bond. See id.

An Illinois court later dismissed the charges against him for

failing to state an offense under Illinois law. See Albright,

510 U.S. at 269, 114 S. Ct. at 810. Albright then sued the

police officer who had obtained the arrest warrant under

section 1983, alleging that the officer had deprived him of

his Fourteenth Amendment right to be free from

prosecution except upon probable cause. See id. The Court

of Appeals for the Seventh Circuit dismissed the suit on the

ground that Albright had failed to show incarceration, loss

of employment, or some other "palpable consequence"

caused by the prosecution. Albright, 510 U.S. 269-70, 114

S. Ct. at 811 (citations omitted).

Writing for a four-member plurality, Chief Justice

Rehnquist affirmed the dismissal and held "that

substantive due process, with its `scarce and open-ended'

`guideposts' [could] afford [Albright] no relief." Albright, 510

U.S. at 275, 114 S.Ct. at 814 (citations omitted). In

reaching this conclusion, Chief Justice Rehnquistfirst

noted that Albright claimed neither that he was denied

procedural due process guaranteed by the Fourteenth

9

Amendment nor that he suffered a violation of his Fourth

Amendment rights. Rather, Albright's claim was limited to

the narrow issue of his substantive due process right to be

free from a prosecution without probable cause. See

Albright, 510 U.S. at 271, 114 S. Ct. at 812. Upholding the

district court's dismissal, Chief Justice Rehnquist

announced "[w]here a particular amendment `provides an

explicit textual source of constitutional protection' against

a particular sort of government behavior, `that Amendment,

not the more generalized notion of "substantive due

process," must be the guide for analyzing these claims.' "

Albright, 510 U.S. at 273, 114 S.Ct. at 813 (quoting Graham

v. Connor, 490 U.S. 386, 394, 109 S. Ct. 1865, 1870

(1989). Although the Court did not address the merits of a

Fourth Amendment argument because Albright had not

raised such an argument in his petition for certiorari, it left

open the possibility that Albright could have succeeded if

he had relied on the Fourth Amendment. See Albright, 510

U.S. at 275, 114 S.Ct. at 813-14. As several courts have

noted, the Supreme Court's failure to rule on the merits of

a Fourth Amendment claim, as well as the splintered views

on the constitutional implications of malicious prosecution

claims expressed in the various concurrences, has created

great uncertainty in the law. See Taylor v. Meacham, 82

F.3d 1556, 1561 n.5 (10th Cir. 1996) (stating that "Albright

muddied the waters rather than clarified them"); Reed v.

City of Chicago, 77 F.3d 1049, 1053 (7th Cir. 1996)

(referring to the "Albright minefield").

By stating that "the accused is not entitled to judicial

oversight or review of the decision to prosecute," Albright

implies that prosecution without probable cause is not, in

and of itself, a constitutional tort. 510 U.S. at 274, 114

S.Ct. at 813 (internal quotations omitted).5 Instead, the

constitutional violation is the deprivation of liberty

accompanying the prosecution. Thus, as the Court of

Appeals for the Second Circuit stated in a post-Albright

_________________________________________________________________

5. Justice Stevens strongly disagreed with this point in his dissent. See

Albright, 510 U.S. at 291,114 S. Ct. at 822. He wrote that initiating a

prosecution without the equivalent of probable cause invoked enough

liberty concerns to violate the Due Process Clause of the Fourteenth

Amendment. See Albright, 510 U.S. at 294-96, 114 S. Ct. at 823-24.

10

decision, a plaintiff asserting a malicious prosecution claim

must show "some deprivation of liberty consistent with the

concept of `seizure.' " Singer v. Fulton County Sheriff, 63

F.3d 110, 116 (2d Cir. 1995). The district court was

therefore correct in focusing on the seizure issue in

evaluating Gallo's claim.6

2. Was Gallo seized?

Because under the common law, the tort of malicious

prosecution concerns "perversion of proper legal

procedures," Gallo must show that he suffered a seizure as

a consequence of a legal proceeding. See Singer, 63 F.3d at

116-17. In this case, the legal proceeding was the

indictment, and Gallo's post-indictment liberty was

restricted in the following ways: he had to post a $10,000

bond, he had to attend all court hearings including his trial

and arraignment, he was required to contact Pretrial

Services on a weekly basis, and he was prohibited from

traveling outside New Jersey and Pennsylvania. Although it

is a close question, we agree with Gallo that these

restrictions amounted to a seizure.

Relying on the common law understanding of the

purpose of bail, Justice Ginsburg explained in her

concurrence in Albright that "the difference between pretrial

incarceration and other ways to secure a defendant's court

attendance [is] a distinction between methods of retaining

control over a defendant's person, not one between seizure

and its opposite." 510 U.S. at 278, 114 S. Ct. at 815. Thus,

although recognizing that a defendant who is incarcerated

pending trial suffers greater deprivation than one released

on bail, Justice Ginsburg concluded that even the latter

_________________________________________________________________

6. In fact, by suggesting that malicious prosecution in and of itself is

not

a harm, Albright also suggests that a plaintiff would not need to prove

all

of the common law elements of the tort in order to recover in federal

court. For instance, if the harm alleged is a seizure lacking probable

cause, it is unclear why a plaintiff would have to show that the police

acted with malice. Justice Ginsburg hints at this point in her

concurrence in Albright, when she writes that the constitutional tort

authorized by section 1983 "stands on its own, influenced by the

substance, but not tied to the formal categories and procedures, of the

common law." Albright, 510 U.S. at 277 n.1, 114 S. Ct. at 815 n.1.

11

defendant is seized. See Albright, 510 U.S. at 279, 114 S.Ct.

at 815-16. She wrote: "Such a defendant is scarcely at

liberty; he remains apprehended, arrested in his

movements, indeed `seized' for trial, so long as he is bound

to appear in court and answer the state's charges." Albright,

510 U.S. at 279, 114 S.Ct. at 816. We find this analysis

compelling and supported by Supreme Court case law.7

Supreme Court decisions provide that a seizure is a show

of authority that restrains the liberty of a citizen, see, e.g.

California v. Hodari D., 499 U.S. 621, 625-27, 111 S.Ct.

1547, 1550-51 (1991), or a "government termination of

freedom of movement intentionally applied." County of

Sacramento v. Lewis, 118 S. Ct. 1708, 1715 (1998). The

case law also shows that an actual physical touching is not

required to effect a seizure. See Hodari D., 499 U.S. at 626,

111 S.Ct. at 1551.

Additionally, the Supreme Court has clarified that

seizures can be of different intensities. Thus, whereas an

arrest that results in detention may be the most common

type of seizure, an investigative stop that detains a citizen

only momentarily also is a seizure. See Terry v. Ohio, 392

U.S. 1, 16-18, 88 S.Ct. 1868, 1877-78 (1968). Terry

demonstrates that the legal distinction between an arrest

and an investigative stop is not that one is a seizure and

the other is not, but that the police may be able to execute

a stop based on circumstances not rising to the level of

probable cause for an arrest. See 392 U.S. at 20 n.16, 88

S.Ct. at 1879 n.16. This analysis suggests that the

restrictions imposed upon Gallo would qualify as a seizure,

even though they did not amount to a full blown arrest.

When he was obliged to go to court and answer the

charges against him, Gallo, like the plaintiff in Terry, was

brought to a stop. This process may not have the feel of a

_________________________________________________________________

7. At least two other members of the Court appeared to agree with

Justice Ginsburg's understanding of the concept of seizure. See Albright,

510 U.S. at 290, 308, 114 S. Ct. at 822, 830 (Souter J., concurring)

(suggesting his agreement by indicating that movement is restrained

when "seizure occurs or bond terms are imposed"); (Stevens, J.

dissenting) (explicitly agreeing with Justice Ginsburg's analysis on this

point).

12

seizure because it is effected by authority of the court, not

by the immediate threat of physical force. Force, however,

lies behind the court's commands as it lies behind the

policeman's "Stop." Gallo's physical motion was subjected

to authority that had the effect of making him halt. In the

present state of our law, it is difficult to distinguish this

kind of halt from the exercise of authority deemed to be a

seizure in Terry.

The Supreme Court's ruling that release on personal

recognizance satisfies the "in custody" provision of the

federal habeas corpus statute also suggests that the

restrictions imposed upon Gallo should qualify as a seizure.

See Justices of Boston Municipal Court v. Lydon, 466 U.S.

294, 300-01, 104 S.Ct. 1805, 1809-10 (1984). Although the

Supreme Court has not held that the definition of"in

custody" parallels the definition of seizure, the Court's

construction of the term is relevant given that both seizure

and custody concern governmental restriction of the

freedom of those suspected of crime. In ruling that release

on personal recognizance qualifies as "custody," the Court

recognized that bail restrictions on travel, as well as

mandatory attendance at court hearings does restrain

liberty, particularly because failure to obey, or failure to

appear, constitutes a criminal offense under state law. See

Lydon, 466 U.S. at 301, 104 S.Ct. at 1809.

Our precedent, as represented by Lee v. Mihalich, also

suggests that we should find that Gallo was seized.

Although, as we explained above, Albright places into doubt

Lee's conclusion that alleging the common law elements of

malicious prosecution is enough to show a constitutional

violation under section 1983, Lee itself represents a broad

approach regarding bringing malicious prosecution claims

in federal court. Given that the Supreme Court's decision in

Albright does not determine conclusively what kinds of

Fourth Amendment violations would be actionable under

section 1983, we would remain closest to our own

precedent by adopting a broad approach in considering

what constitutes a seizure.

Further, we note that the only other court of appeals, of

which we are aware, to examine the issue raised in this

appeal has ruled that pretrial restrictions on travel and

13

required attendance at court hearings constitute a seizure.

See Murphy v. Lynn, 118 F.3d 938, 945 (2d Cir. 1997). In

its reasoning, Murphy relied on Justice Ginsburg's

concurrence in Albright, as well as the conclusion that

restriction of the right to travel should have Fourth

Amendment implications. See id. at 944-47; see also Britton

v. Maloney, 981 F. Supp. 25, 37-38 (D.Mass. 1997)

(adopting Justice Ginsburg's theory and finding required

attendance at court hearings enough to constitute a

seizure). Although some courts of appeals have expressed

doubts about theories of seizure like Justice Ginsburg's,

none appear to have rejected such a theory in the context

of a malicious prosecution claim. See Riley v. Dorton, 115

F.3d 1159, 1162 (4th Cir. 1997) (rejecting Justice

Ginsburg's theory in context of claim alleging excessive

force post-arrest); Reed v. City of Chicago, 77 F.3d at 1053-

54 (rejecting malicious prosecution claim because plaintiff

had failed to show any improper influence or knowing

misstatements by the police); Whiting v. Traylor, 85 F.3d

581, 584 (11th Cir. 1996) (expressing doubt about Justice

Ginsburg's theory but declining to reach a final decision on

its merits); Wilkins v. May, 872 F.2d 190, 193 (7th Cir.

1989) (rejecting idea of continuous seizure in claim of

excessive force applied post-arrest).

The appellees argue, however, and the district court

agreed, that the restrictions imposed upon Gallo are simply

not significant enough to constitute a seizure. In stating

this argument, the appellees make two specific claims.

First, they contend that Gerstein v. Pugh, 420 U.S. 103, 95

S.Ct. 854 (1975), forecloses Gallo's claim. Second, they

argue that an individual free to move about in his own state

cannot be "seized." We address each argument in turn.

In Gerstein, the Supreme Court concluded that when an

individual is prosecuted based on an information, a judicial

determination of probable cause is a "prerequisite to [an]

extended restraint of liberty following arrest." 420 U.S. at

114, 95 S.Ct. at 863. Additionally, the Court clarified that

the probable cause requirement applies only to "significant"

restraints on liberty and specifically stated that merely

appearing at trial does not qualify as "significant." Gerstein,

420 U.S. at 124-25 & n.26, 95 S.Ct. at 868-69 & n.26. The

14

appellees claim that the restrictions imposed on Gallo

similarly do not qualify as significant, and thus cannot

amount to a seizure.

In our view, however, Gerstein's holding does not apply in

this case. Gerstein did not address specifically the definition

of a seizure, and Supreme Court cases have not equated a

seizure with a significant deprivation of liberty. Second, not

all seizures require probable cause; for instance, in Terry

the Supreme Court suggested that an investigative stop

could be executed based on circumstances not constituting

probable cause. Thus, while Gerstein may hold that only

those seizures that amount to a significant liberty

deprivation must be proceeded by a probable cause

determination, it does not hold that only those liberty

restrictions that require probable cause are seizures.

Next, we acknowledge, as suggested by the district court,

that it may seem anomalous to consider an individual who

is free to move about in his own home state as "seized."

Indeed, Supreme Court cases concerning seizure generally

involve restricting an individual's movement to a small

area. Thus, an arrested person is confined to a cell, a

station house, or a police car. Moreover, a person subject to

a Terry stop does not feel free to move past the police officer

effectuating the stop. It is therefore conceptually more

difficult to view someone restricted to the boundaries of

New Jersey and Pennsylvania as "seized."

We do not view this difficulty, however, as fatal to Gallo's

claims. Importantly, the constraints on Gallo's freedom

were not limited to restrictions on his travel, he was also

compelled to attend all court hearings. An individual

detained briefly by the police, even if frisked in the process,

may be viewed as suffering no greater a deprivation of

liberty than an individual like Gallo, whose liberty was

restrained through travel restrictions and mandatory court

appearances over an eight and a half month period. While

a Terry stop may be upsetting, it is fleeting, whereas Gallo's

liberty was constrained in multiple ways for an extended

period of time. Thus, we conclude that the limited scope of

the seizure here is germane to damages not liability.

In reaching our result we recognize that the district court

observed that accepting Gallo's position would result in

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constitutionalizing the tort of malicious prosecution. The

court is correct that if the facts of this case amount to a

seizure, then nearly all individuals alleging malicious

prosecution will be able to sue under section 1983 because

travel restrictions and required attendance at court

hearings inhere in many prosecutions. Further, the concern

of constitutionalizing a common law tort is legitimate given

the Supreme Court's repeated reminder that section 1983

permits recovery only for rights guaranteed by the

constitution, not the common law. See Memphis Community

School Dist. v. Stachura, 477 U.S. 299, 305-06, 106 S.Ct.

2537, 2542 (1996).

But the fact that many plaintiffs alleging malicious

prosecution now may be able to bring suit under section

1983 does not, in and of itself, justify rejecting Gallo's

seizure claims. First, the Supreme Court has recognized

that "[i]n some cases, the interests protected by the

common law of torts may parallel closely the interests

protected by a particular constitutional right." Carey v.

Piphus, 435 U.S. 247, 258, 98 S.Ct. 1042, 1049 (1978).

Second, in a sense, a claim of malicious prosecution

against public officials always has had constitutional

ramifications. After all, a malicious prosecution is not an

ordinary tort. Instead, a claim of malicious prosecution

brought under section 1983 or Bivens alleges the abuse of

the judicial process by government agents. Such a claim

directly implicates at least one of the interests protected by

the Fourth Amendment: preventing misconduct in the

criminal context. See Terry, 392 U.S. at 12, 88 S.Ct. at

1875.

IV. CONCLUSION

We conclude that the combination of restrictions imposed

upon Gallo, because they intentionally limited his liberty,

constituted a seizure. We therefore will reverse the district

court's order of August 15, 1997, granting the motion to

dismiss and the motion for partial summary judgment and

will remand the matter to the district court for further

proceedings consistent with this opinion.

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A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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