Hector v. Watt

Opinions of the United

2000 Decisions States Court of Appeals

for the Third Circuit

12-13-2000

Hector v. Watt

Precedential or Non-Precedential:

Docket 00-3084

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Filed December 13, 2000

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 00-3084

EUGENE HECTOR,

Appellant

v.

GORDON J. WATT; ALBERTO DIAZ; RICHARD DAVY;

SCOTT HUNTER, in their individual and official capacities

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Civil No. 97-cv-01410)

District Judge: Honorable William L. Standish

Argued October 5, 2000

Before: NYGAARD, GREENBERG and COWEN,

Circuit Judges

(Filed December 13, 2000)

Michael L. Rosenfield, Esq. (Argued)

1808 Law & Finance Building

Pittsburgh, PA 15219

John Stember, Esq.

429 Forbes Avenue

Allegheny Building

Pittsburgh, PA 15219

Counsel for Appellant

John G. Knorr, III, Esq.

Calvin R. Koons, Esq. (Argued)

Office of the Attorney General

of Pennsylvania

Strawberry Square

15th Floor

Harrisburgh, PA 17120

Rodney M. Torbic, Esq.

Office of the Attorney General

of Pennsylvania

564 Forbes Avenue

Manor Complex

Pittsburgh, PA 15219

Counsel for Appellees

OPINION OF THE COURT

COWEN, Circuit Judge:

In previous criminal proceedings Eugene Hector

successfully argued that several state tr oopers violated the

Fourth Amendment when they seized over 80 pounds of

hallucinogenic mushrooms from Hector's airplane in

Dubois, Pennsylvania. Once the drugs were suppr essed and

the prosecution dismissed, Hector initiated this S 1983

action against the four appellants, Officers Gor don Watt,

Alberto Diaz, Richard Davy, and Scott Hunter . The officers'

request for qualified immunity has alr eady been denied and

the order affirmed. Hector v. W att, 203 F.3d 817 (3d Cir.

1999) (unpublished table decision).

The narrow issue presented in this appeal is what type of

damages Hector can obtain under the Fourth Amendment.

Hector has abandoned any claim for damages fr om the

search itself and instead seeks compensation solely for

expenses he incurred during his criminal pr osecution--

$3,500 in bail-bond expenses, $23,000 in attor ney's fees,

and $2,000 for travel between Pennsylvania and his home

in California. The District Court held that Hector could not

collect those litigation costs. We will affirm.

2

I

The Supreme Court has "repeatedly noted that 42 U.S.C.

S 1983 creates a species of tort liability." Heck v. Humphrey,

512 U.S. 477, 483, 114 S.Ct. 2364, 2370 (1994) (quoting

Memphis Community School Dist. v. Stachura, 477 U.S. 299,

305, 106 S.Ct. 2537, 2542 (1986) (internal quotation marks

omitted)). Given this close relation betweenS 1983 and tort

liability, the Supreme Court has said that the common law

of torts, "defining the elements of damages and the

prerequisites for their recovery, pr ovide[s] the appropriate

starting point for inquiry under S 1983 as well." Heck, 512

U.S. at 483, 114 S.Ct. at 2370 (quoting Car ey v. Piphus,

435 U.S. 247, 257-58, 98 S.Ct. 1042, 1049 (1978)). The

Supreme Court applied this rule in Heck to an inmate's

S 1983 suit, which alleged that county pr osecutors and a

state police officer destroyed evidence, used an unlawful

voice identification procedure, and engaged in other

misconduct. In deciding whether the inmate could state a

claim for those alleged violations, the Supr eme Court asked

what common-law cause of action was the closest to the

inmate's claim and concluded that "malicious pr osecution

provides the closest analogy . . . because unlike the related

cause of action for false arrest or imprisonment, it permits

damages for confinement imposed pursuant to legal

process." Heck, 512 U.S. at 484, 114 S.Ct. at 2371. Looking

to the elements of malicious prosecution, the Court held

that the inmate's claim could not proceed because one

requirement of malicious prosecution is that the prior

criminal proceedings must have terminated in the

plaintiff 's favor, and the inmate in Heck had not

successfully challenged his criminal conviction. Id.

Although Hector is not seeking damages for

imprisonment following a conviction, as in Heck , he is still

seeking to recover costs incurred while defending against a

prosecution, relief that the common law made available

exclusively under malicious prosecution. As the Supreme

Court has explained, false arrest or imprisonment, the only

other cause of action under the common law that could

apply to a wrongful arrest and its consequences, provides

damages "up until issuance of process or arraignment, but

not more." Id. (quoting W . Keeton, D. Dobbs, R. Keeton, &

3

D. Owen, Prosser and Keeton on the Law of T orts 888 (5th

ed. 1984)).

Given the Supreme Court's mandate that we look to

similar common-law causes of action, Hector appears to be

on the horns of a dilemma. If his claim is categorized as

being like false arrest, then his claim fails because false

arrest does not permit damages incurr ed after an

indictment, excluding all the damages he seeks. But if his

claim is treated as resembling malicious prosecution, then

he would face the problem that a plaintif f claiming

malicious prosecution must be innocent of the crime

charged in the underlying prosecution."Even if the plaintiff

in malicious prosecution can show that the defendant acted

maliciously and without probable cause in instituting a

prosecution, it is always open to the defendant to escape

liability by showing in the malicious prosecution suit itself

that the plaintiff was in fact guilty of the offense with which

he was charged." Prosser and Keeton, supra, at 885 (citing

Restatement of Torts S 657). This r equirement can bar

recovery even when the plaintiff was acquitted in the prior

criminal proceedings, for a verdict of not guilty only

establishes that there was not proof beyond a reasonable

doubt. Id.

Hector may believe, plausibly enough, that his claim is

really more like a simple claim of tr espass. We agree that

he has not in fact brought a claim for false arrest or

malicious prosecution. And for that reason, we do not need

to address the complexities of our jurisprudence on

malicious prosecution under S 1983. Compare Torres v.

McLaughlin, 163 F.3d 169 (3d Cir. 1998), cert. denied, ___

U.S. ___, 120 S.Ct. 797 (2000) (rejecting a claim for

malicious prosecution under the Fourth Amendment), with

Gallo v. City of Philadelphia, 161 F.3d 217 (3d Cir. 1998)

(reversing dismissal of a claim for malicious prosecution

under the Fourth Amendment and holding that r estrictions

on a plaintiff 's liberty post-indictment constituted a seizure

triggering Fourth Amendment rights). See also Albright v.

Oliver, 510 U.S. 266, 272, 114 S.Ct. 807, 807 (1994)

(rejecting claim for malicious prosecution based on

substantive due process); Merkle v. Upper Dublin School

Dist., 211 F.3d 782, 792-93 (3d Cir . 2000) (discussing

4

Albright's impact on S 1983 claims for malicious

prosecution). Other cases have evaluated various

restrictions on malicious prosecution under S 1983. See,

e.g., Wilson v. Russo, 212 F .3d 781 (3d Cir. 2000);

Montgomery v. De Simone, 159 F.3d 120 (3d Cir. 1998);

Sherwood v. Mulvihill, 113 F.3d 396 (3d Cir. 1997); Rose v.

Bartle, 871 F.2d 331 (3d Cir. 1989).

If Hector's claim is treated like trespass, however, then he

fails to identify any common-law authority appr oving of the

damages he seeks. His difficulty in finding authority is

easily explained, for the exclusionary rule was not part of

the common law. Justice Story stated this point plainly: "In

the ordinary administration of municipal law the right of

using evidence does not depend, nor, as far as I have any

recollection, has ever been supposed to depend upon the

lawfulness or unlawfulness of the mode, by which it is

obtained. . . . [T]he evidence is admissible on charges for

the highest crimes, even though it may have been obtained

by a trespass upon the person, or by other for cible and

illegal means." United States v. La Jeune Eugenie, 26 F.

Cas. 832, 843-44 (C.C.D. Mass. 1822). See also Akhil Reed

Amar, The Constitution and Criminal Pr ocedure 20-25

(1997) (reviewing historical evidence on the development of

the exclusionary rule).

Pointedly, Amar's book adds that a "two-century tradition

of civil damage actions in America" prohibited a plaintiff

who was subjected to an illegal search fr om collecting

damages for any prosecution, conviction, and incarceration

resulting from the search. Id. at 27. The plaintiff was

limited to damages for the search itself. Id.

But analogies to the common law are not all that guide

our decision. We do not venerate, for example, the common

law rule that "upon marriage, the wife's identity merged

with that of her husband. . . . plac[ing] the wife under a

number of disabilities." Prosser and Keeton, supra, at 901.

In Heck the Supreme Court said that the common law of

torts was the starting point, not the only consideration, in

analyzing a claim under S 1983. Thus, in justifying the

result in Heck, the Court explained that allowing prisoners

to challenge their convictions through S 1983 would

undermine settled law of habeas corpus. Cf. Montgomery,

5

159 F.3d at 124 ("In determining whether a certain

common law concept governs a section 1983 action, the

[Supreme] Court has been guided by the extent to which

the common law rule is rooted in history and r eason and

whether the policies it serves are compatible with the

purposes of section 1983."). Once we turn to these

additional considerations, it is clear that Hector's claim

must fail.

One pivotal consideration is that in Car ey the Supreme

Court stated that the damages available under S 1983

depend on the type of constitutional right asserted:

[T]he elements and prerequisites for recovery of

damages appropriate to compensate injuries caused by

the deprivation of one constitutional right ar e not

necessarily appropriate to compensate injuries caused

by the deprivation of another. As we have said, these

issues must be considered with refer ence to the nature

of the interests protected by the particular

constitutional right in question.

Carey, 435 U.S. at 264-65, 98 S.Ct. at 1053. When we

reflect on the interests protected by the Fourth

Amendment, we believe that it follows that a plaintiff

cannot recover the litigation expenses incurr ed because

police officers discovered criminal conduct during an

unconstitutional search. As the Second Cir cuit has said in

a case much like ours, "The evil of an unr easonable search

or seizure is that it invades privacy, not that it uncovers

crime, which is no evil at all." Townes v. City of New York,

176 F.3d 138, 148 (2d Cir. 1999). If Carey instructs that we

should assess liability in terms of the risks that are

constitutionally relevant, then damages for an unlawful

search should not extend to post-indictment legal process,

for the damages incurred in that process are too unrelated

to the Fourth Amendment's privacy concerns. W e agree

with Townes: "Victims of unr easonable searches or seizures

may recover damages directly related to the invasion of

their privacy--including (where appropriate) damages for

physical injury, property damage, injury to r eputation, etc.;

but such victims cannot be compensated for injuries that

result from the discovery of incriminating evidence and

consequent criminal prosecution." 176 F .3d at 148.

6

II

Our conclusion that Carey and Heck require the result

we reach is supported by the Supreme Court's

jurisprudence on the exclusionary rule. The Supr eme Court

has made clear in many cases that the exclusionary rule is

not "a personal constitutional right of the party aggrieved."

United States v. Peltier, 422 U.S. 531, 538, 95 S.Ct. 2313,

2318 (1975) (quoting United States v. Calandra , 414 U.S.

338, 348, 94 S.Ct. 613, 620 (1974)). As a result, the Court

has recognized many exceptions where the exclusionary

rule does not apply.

Most recently, for example, the Supreme Court has said

that the exclusionary rule does not apply to par ole

revocation hearings. Pennsylvania Boar d of Probation and

Parole v. Scott, 524 U.S. 357, 118 S.Ct. 2014 (1998). The

Court has also refused to suppress evidence that police

officers discovered when they were r easonably relying on a

search warrant that was later held invalid, United States v.

Leon, 468 U.S. 897, 104 S.Ct. 3405 (1985); r efused to apply

the exclusionary rule in a civil deportation hearing, I.N.S. v.

Lopez-Mendoza, 468 U.S. 1032, 104 S.Ct. 3479 (1984);

created a "public safety" exception to the timing of Miranda

warnings, New York v. Quarles, 467 U.S. 649, 104 S.Ct.

2626 (1984); created an "inevitable discovery" exception to

admit evidence that would have otherwise been excluded,

Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501 (1984);

allowed prosecutors to use during cross-examination

evidence obtained in violation of the Fourth Amendment,

United States v. Havens, 446 U.S. 620, 100 S.Ct. 1912

(1980); refused to exclude evidence obtained during an

arrest pursuant to a statute later held unconstitutional,

Michigan v. DeFillippo, 443 U.S. 31, 99 S.Ct. 2627 (1979);

allowed the government to use in civil tax pr oceedings

evidence seized in violation of the Fourth Amendment,

United States v. Janis, 428 U.S. 433, 96 S.Ct. 3021 (1976);

rejected relief under habeas corpus for Fourth Amendment

violations, Stone v. Powell, 428 U.S. 484, 96 S.Ct. 3037

(1976); rejected retroactive application of a Supreme Court

opinion concerning warrantless searches of cars, even

though the petitioner's appeal was pending when the

decision was announced, United States v. Peltier , 422 U.S.

7

531, 95 S.Ct. 2313 (1975); held that a witness befor e a

grand jury could not refuse to answer questions that were

based on evidence obtained in violation of the Fourth

Amendment, United States v. Calandra, 414 U.S. 338, 94

S.Ct. 613 (1974); and allowed unlawfully seized evidence to

be used to impeach the credibility of a defendant who

testified in his defense, Walder v. United States, 347 U.S.

62, 74 S.Ct. 354 (1954). The list could go on.

We are not of course drawing into question whether the

exclusionary rule was properly applied in Hector's criminal

case. The issue we must resolve is whether Hector can

continue to benefit from the exclusionary rule in his S 1983

suit and be relieved of defense costs fr om a prosecution

that was terminated only because of the exclusionary rule.

In deciding whether we will recognized this"continued"

application of the exclusionary rule in Hector's civil suit, we

must evaluate what other interests will be af fected by such

an extension of the rule. The Supreme Court invoked this

broader perspective in Stone:

The judgment in Walder revealed most clearly that the

policies behind the exclusionary rule are not absolute.

Rather, they must be evaluated in light of competing

policies. In that case, the public interest in

determination of truth at trial was deemed to outweigh

the incremental contribution that might have been

made to the protection of Fourth Amendment values by

application of the rule.

Stone v. Powell, 428 U.S. at 488, 96 S.Ct. at 3049.

Many of the cases cited above, such as Stone, emphasize

that the point of the exclusionary rule is to deter violations

of the Fourth Amendment and then conclude that applying

the exclusionary rule to the class of cases befor e the Court

--habeas cases, for example--would not significantly

increase the deterrent effect of the rule.

Under this logic, Hector can reasonably ar gue that

imposing substantial financial liability on officers would

add measurably to the deterrent effect of the exclusionary

rule. And while the loss to the truth-seeking function of

trials (the countervailing consideration often cited by the

8

Supreme Court) may be a persuasive reason for admitting

evidence already discovered, the truth-seeking function of

trials is a much less convincing reason for opposing greater

deterrence of future constitutional violations. Once we

agree that the police should adhere to the Fourth

Amendment, we must accept that the police will for ego

evidence that only would have been discovered through an

unconstitutional search.

Despite these arguments supporting greater deterrence,

Stone tells us that there are a variety of policy concerns to

weigh. One policy concern in our case is that the

magnitude of the liability that Hector's theory would impose

would often have very little to do with the seriousness of

the Fourth Amendment violation. What is often obscur ed by

the Fourth Amendment's prominent role in criminal

proceedings is that, as Townes suggested, we judge the

gravity of Fourth Amendment violations not by the

probative value of the evidence uncover ed, but by the

degree of the privacy invasion.

For example, if police officers barged into someone's

house without a warrant or probable cause, ransacked all

the rooms, and on a whim shot the homeowner's dogs, that

would be a very serious invasion of privacy, r egardless of

whether evidence of criminal wrongdoing was unearthed. If

on the other hand an officer who was conducting a lawful

frisk of someone decided to open a small package, like a

wallet, when there was insufficient justification for doing

so, the officer's unconstitutional search would cause only a

minimal intrusion of privacy, even if it uncover ed evidence

of massive criminal wrongdoing, leading to pr otracted and

expensive criminal prosecutions.

Under Hector's theory, however, the officer who took a

frisk one modest step too far could face vast liability,

liability that bears no relationship to the seriousness of the

invasion of privacy. We recognize that tort law does not

require that damages remain strictly proportional to fault;

the famous eggshell-skull rule is an illustration. See, e.g.,

Jenson v. Eveleth Taconite Co, 130 F .3d 1287, 1294 (8th

Cir. 1997); Avitia v. Metropolitan Club of Chicago, 49 F.3d

1219, 1227 (7th Cir. 1995). Another example is that a

tortfeasor pays more in lost wages when the injured victim

9

has a higher income. And the Supreme Court has endorsed

the rule that courts "should read [S 1983] against the

background of tort liability that makes a man r esponsible

for the natural consequences of his actions." Malley v.

Briggs, 475 U.S. 335, 344-45 n.7, 106 S.Ct. 1092, 1098 n.

7 (1986) (quoting Monroe v. Pape, 365 U.S. 167, 197, 81

S.Ct. 473, 484 (1961)).

But these considerations are not decisive. As Heck

emphasized, we are evaluating liability in a context where

the common law would not allow damages for false arr est

after an indictment and would prevent a plaintiff who was

in fact guilty from obtaining relief for malicious

prosecution. We are also considering liability that bears at

best a tenuous connection to the interests pr otected by the

Fourth Amendment. Because the caselaw makes clear that

we should keep in mind the interests pr otected by the

constitutional provision, and should weigh competing

policies in designing remedies for Fourth Amendment

violations, we think it is reasonable to r ecognize that the

liability Hector seeks under S 1983 could often have little

relation to the seriousness of the Fourth Amendment

violation.

Our point is not that officers should be fr ee from liability

for invasions of privacy, or even for comparatively minor

ones. We are assuming here that a constitutional violation

occurred and qualified immunity does not apply. The point

is that given the social importance of police enfor cement,

we think it is irresponsible to impose potential liability out

of proportion to the errors committed. The resources any

community has to devote to police protection ar e scarce,

and Hector's way of calibrating liability would misallocate

those limited resources by focusing on the wrong types of

errors, while at the same time having the unfortunate

consequence of reducing the cost of misconduct to

criminals. To allow damages so out of pr oportion to the

privacy invasion would not be consistent with the br oad

principles animating qualified immunity. See, e.g., Harlow

v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727 (1982).

We also think it is significant that all of the scholarly

authority that we have found runs against Hector's

position. See Akhil Reed Amar, supra, at 27-29; Douglas

10

Laycock, Modern American Remedies: Cases and Materials

143 (2d ed. 1994); William J. Stuntz, W arrants and Fourth

Amendment Remedies, 77 Va. L. Rev. 881, 900-01 (1991);

John C. Jeffries, Jr., Damages for Constitutional Violations,

75 Va. L. Rev. 1461, 1474-76 (1989); Daniel J. Meltzer,

Deterring Constitutional Violations by Law Enforcement

Officials 88 Colum. L. Rev. 247, 270 (1988); Richard A.

Posner, Rethinking the Fourth Amendment, 1981 Sup. Ct.

Rev. 49, 50-53.

We recognize that a district court opinion in this circuit

has held that a plaintiff who was convicted as a result of an

illegal search could seek post-indictment damages for his

conviction and incarceration solely on the basis of the

illegal search. See Carter v. Georgevich, 78 F. Supp.2d 332

(D.N.J. 2000). But we do not find the reasoning of that case

to be persuasive.

III

The officers have argued that proximate causation

provides an alternative ground for affirming. More

specifically, they claim that the prosecutor's and grand

jury's decisions to indict Hector were super ceding or

intervening causes that broke the causal connection

between the Fourth Amendment violation and Hector's

subsequent expenses in mounting a legal defense.

The officers are correct that we have applied the common

law of proximate causation to S 1983 claims, see, e.g.,

Hedges v. Musco, 204 F.3d 109, 121 (3d Cir. 2000), and in

particular that we have applied the concept of intervening

causes to a S 1983 action for Fourth Amendment violations.

See Bodine v. Warwick, 72 F.3d 393, 400 (3d Cir. 1995).

In Bodine, for example, the plaintif f alleged that police

officers illegally entered his house and used excessive force

as they tried to arrest him. We held that the illegal entry

did not make the officers automatically liable for any

injuries caused by the arrest. Invoking pr oximate

causation, we explained that if the officers' use of force was

reasonable given the plaintiff 's acts, then despite the illegal

entry, the plaintiff 's own conduct would be an intervening

cause that limited the officers' liability. For the plaintiff to

11

recover all the damages he sought, we said that he had to

prove two torts--one for the illegal entry and a second for

excessive force.

While Bodine's insistence that the plaintif f must prove

two torts bears some family resemblance to our conclusion

that Hector cannot use the illegal search alone to obtain

relief for what is in essence a claim for malicious

prosecution, Bodine's superceding cause does not apply

here. The officers are not alleging that any of Hector's

conduct counts as an intervening cause; instead, they

claim that the prosecutor's and grand jury's decisions to

indict were the intervening cause.

The problem with the officers' theory is that there is a

great deal of tension in the caselaw about when official

conduct counts as an intervening cause. The Second

Circuit has carefully described these tensions in a recent

opinion, Zahrey v. Coffey, 221 F.3d 342, 349-55 (2d Cir.

2000), and observed that the most closely analogous

Supreme Court decision rejected a pr oposed intervening

cause. See Malley v. Briggs, 475 U.S. at 344-45 n.7, 106

S.Ct. at 1098 n.7. The plaintiff in Malley had brought a

S 1983 suit against a police officer for submitting

insufficient evidence for a search warrant. In allowing the

plaintiff 's suit to proceed, the Supr eme Court expressly

stated that the judicial officer's decision to issue a warrant

did not break the "causal chain between the application for

the warrant and the improvident arrest." Malley v. Briggs,

475 U.S. at 344-45 n.7, 106 S.Ct. at 1098 n.7.

Not long after Malley, the Second Cir cuit rejected that a

prosecutor or grand jury's decision was an intervening

cause. See White v. Frank, 855 F.2d 956, 962 (2d Cir. 1988)

("As with the grand jury . . . the public pr osecutor's role in

a criminal prosecution will not necessarily shield a

complaining witness from subsequent civil liability where

the witness's testimony is knowingly and maliciously

false."). The Second Circuit has also held that a sentencing

judge's decision did not break the causal chain between the

wrongful recommendation of a probation officer and an

unconstitutional sentence. Warner v. Orange County Dep't

of Probation, 115 F.3d 1068, 1071 (2d Cir. 1997), reinstated

12

after opinion vacated, 173 F.3d 120, 121 (2d Cir.), cert.

denied, ___ U.S. ___, 120 S.Ct. 495 (1999).

By contrast, in Townes the Second Cir cuit found that a

judge's decision not to suppress evidence was an

intervening cause, see 176 F.3d at 146-47, and the Fifth

Circuit has held that the decisions of an FBI agent,

prosecutor, and grand jury acted as an intervening cause.

See Hand v. Gary, 838 F.2d 1420, 1427-28 (5th Cir. 1988).

The Ninth Circuit has likewise invoked a pr osecutor's

decision as an intervening cause. Smiddy v. V arney, 665

F.2d 261, 266-68 (9th Cir. 1981), adhered to, 803 F.2d

1469, 1471-72 (9th Cir. 1986). And Zahr ey listed many

more cases, yielding few coherent principles.

As we recently observed, albeit not in the context of

S 1983 actions, the Supreme Court "has repeatedly noted

that `proximate cause is hardly a rigor ous analytic tool.' "

Steamfitters Local, 420 v. Philip Morris, Inc., 171 F.3d 912,

922 (3d Cir. 1999) (quoting Blue Shield v. McCready, 457

U.S. 465, 477 n.13, 102 S.Ct. 2540, 2547 n. 13 (1982)).

Given that the cases on intervening causes ar e legion and

difficult to reconcile, as Zahrey shows, and that we have

other, sufficient grounds for r esolving this case, we will not

reach the issue of intervening causation. W e have no reason

to use this case as a vehicle for effectively deciding, for

example, that a S 1983 plaintiff who was the victim of

fabricated evidence can never sue for damages incurr ed

after a prosecutor's decision to indict. W e leave such

matters for another day.

IV

For the foregoing reasons, the District Court's judgment

of January 25, 2000, will be affirmed.1

_________________________________________________________________

1. After Hector abandoned all claims for damages from the stop itself, the

officers requested in their motion for summary judgment that the

District Court enter a one-dollar award in Hector's favor as nominal

damages for the Fourth Amendment violation. W e need not address the

propriety of that award, given Hector's abandonment of all compensable

damages and given that the officers themselves sought the award and

did not cross-appeal from it.

13

NYGAARD, Circuit Judge, concurring :

While I agree with the majority's conclusion that Hector

cannot recover the expenses he incurred as a result of his

criminal prosecution, I would reach this disposition more

directly via a causation analysis.

I must first recount the relevant facts. Officers Watt,

Diaz, Davy, and Scott unlawfully detained Hector , his

companion, and his personal aircraft at the

Dubois/Jefferson County airport for several hours without

a warrant. The officers did, however, ultimately obtain a

warrant from a magistrate and it was only after they

secured this warrant that they searched Hector's aircraft

and recovered eighty-one pounds of hallucinogenic

mushrooms. Based exclusively on this seized contraband,

Hector was charged in state court with possession with the

intent to distribute the controlled substance. The charges

were withdrawn in state court after a federal grand jury

indictment, and Hector filed a motion to suppr ess the

seized mushrooms based on the officers' violation of his

Fourth Amendment right to be free from unr easonable

searches and seizures. The District Court granted Hector's

motion to suppress after a four day hearing, and the

charges against Hector were withdrawn.

Hector commenced a civil rights action under 42 U.S.C.

S 1983 to recover the expenses incurr ed pursuing his

Fourth Amendment claim. The District Court granted

summary judgment against the officers' attempts to shield

themselves from Hector's claim with the doctrine of

qualified immunity, and we affirmed. Hector v. Watt, No.

99-3355 (3d Cir. Nov. 3, 1999) (per curium). With the

officers' liability for violating Hector's Fourth Amendment

right established, and their entitlement to qualified

immunity blocked, the S 1983 claim was r emanded to the

District Court to determine damages. The District Court

filed a one paragraph order granting the officers' motion for

summary judgment and stating that "as a matter of law . . .

the damages recoverable by plaintiff for defendant's

violation of his civil rights under 42 U.S.C. S 1983 are

limited to nominal damages of $1.00."

Individuals may bring civil claims for damages r esulting

from violations of their Fourth Amendment rights under

14

S 1983. See Parkhurst v. Trapp, 77 F.3d 707 (3d Cir. 1996);

Gillard v. Schmidt, 579 F.2d 825 (3d Cir. 1978). We have

recognized that "Section 1983, Title 42 U.S.C.A., is

completely silent as to the kind of damages which may be

awarded an injured plaintiff in a civil right suit," Basista v.

Weir, 340 F.2d 74, 85 (3d Cir . 1965), and the Supreme

Court has held that S 1983 damages "may include . . . out-

of-pocket loss and other monetary harms." Memphis Cmty.

Sch. Dist. v. Stachura, 477 U.S. 299, 307, 106 S.Ct. 2537,

2543 (1986). Actions brought under S 1983 are reviewed

like common law tort claims and require a proximate cause

analysis. See Heck v. Humphrey, 512 U.S. 477, 114 S.Ct.

2364 (1994); Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042

(1978); Olsen v. Correiro, 189 F.3d 52 (1st Cir. 1999);

Gierlinger v. Gleason, 160 F.3d 858 (2d Cir. 1997).

The dispositive question, therefore, is whether the

officers' illegal search and seizure of Hector's aircraft

proximately caused the expenses related to Hector's

suppression hearing. The first stage of a causation analysis

requires a finding that the violation caused the damages in

fact, and I need not belabor this portion of the analysis

since "but for" the officers' illegal sear ch Hector would not

have been detained, searched, and prosecuted. Because the

charges against Hector rested entir ely upon the illegally

seized drugs, without the officers' violation of his Fourth

Amendment rights none of the subsequent criminal

proceedings would have occurred.

The issue of proximate cause, however, r equires closer

analysis. Unlike causation in fact, proximate causation is a

legal construct fashioned according to policy

considerations. As Justice Andrews stated in his classic

dissent in Palsgraf v. Long Island R.R., 162 N.E. 99, 103

(N.Y. 1928), "[w]hat we mean by the word `proximate' is

that, because of . . . public policy . . . the law arbitrarily

declines to trace a series of events beyond a certain point."

The causal chain traced by a proximate cause analysis can

be broken by an intervening or superceding cause, which

Prosser and Keeton describe as "an act of a third person or

other force which by its intervention pr events the actor

from being liable for harm to another which his antecedent

negligence is a substantial factor in bringing about."

RESTATEMENT (SECOND) OF TORTSS 440 (1965).

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The majority eschews this issue, stating that "[g]iven that

the cases on intervening causes are legion and difficult to

reconcile . . . and that we have other, sufficient grounds for

resolving this case, we will not reach the issue of

intervening cause." Considering the facts befor e us, I find

the causation analysis less daunting.

Three events might be considered to br each the chain of

causation between the initial illegal detention (occurring

before the issuance of the warrant) and the damages Hector

subsequently incurred defending his Fourth Amendment

rights and successfully suppressing the seized contraband:

1) the magistrate's issuance of a warrant; 2) the

prosecutor's decision to pursue the char ge; and 3) the

federal grand jury's indictment. Admittedly, the causation

analysis would be difficult if we were to consider only the

decision to prosecute and the grand jury indictment as

possible intervening causes since parallel and contradictory

jurisprudence has developed on this issue. Compare

Townes v. City of New York, 176 F .3d 138, 147 (2d Cir.

1999) (stating that "[i]t is well settled that the chain of

causation between a police officer's unlawful arr est and a

subsequent conviction and incarceration is br oken by the

intervening exercise of independent judgment"), Barts v.

Joyner, 865 F.2d 1187, 1195 (11th Cir . 1989) (finding that

intervening decisions of prosecutor, grand jury, judge, and

jury supervene), Hand v. Gary, 838 F .2d 1420, 1427-28

(5th Cir. 1988) (finding that a decision of a magistrate or

grand jury supervenes), Smiddy v. Var ney, 665 F.2d 261,

266-68 (9th Cir. 1981), Ames v. United States, 600 F.2d

183, 185 (8th Cir. 1979) (finding that a decision of a grand

jury supervenes), and Duncan v. Nelson, 466 F.2d 939, 943

(7th Cir. 1972) (finding that a ruling of a sentencing judge

supervenes), with Sherwin Manor Nursing Ctr ., Inc. v.

McAuliffe, 37 F.3d 1216 (7th Cir . 1994), Hale v. Fish, 899

F.2d 390 (5th Cir. 1990), Boruda v. Richmond, 885 F.2d

1384 (9th Cir. 1989) (en banc) (stating that a "plaintiff who

establishes liability for deprivations of constitutional rights

actionable under 42 U.S.C. S 1983 is entitled to recover

compensatory damages for all injuries suffer ed as a

consequence of those deprivations" and holding that the

decision to prosecute the charge did not supervene), Kerr v.

City of Chicago, 424 F.2d 1134, 1142 (7th Cir. 1970)

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(stating that a "plaintiff in a civil rights action should be

allowed to recover the attorneys' fees in a . . . criminal

action where the expenditure is a for eseeable result of the

acts of the defendant."), Carter v. Geor gevich, 78 F.Supp.2d

332, 334 (D.N.J. 2000) (stating that "[r]ather than the acts

of a prosecutor and judge being consider ed intervening

causes which interrupted or destroyed the causal

connection between the wrongful act and injury to the

plaintiff, it appears to the Court that such subsequent acts

were reasonably foreseeable by the officer. A tortfeasor is

not relieved from liability for his wr ongful conduct by the

intervention of third persons if these acts ar e reasonably

foreseeable"), Schiller v. Strangis, 540 F.Supp. 605, 621

(D.Mass. 1982), Lykken v. Vavr eck, 366 F.Supp. 585

(D.Minn. 1973), Brooks v. Moss, 242 F .Supp. 531 (W.D.S.C.

1965), and McArthur v. Pennington, 253 F .Supp. 420

(E.D.Tenn. 1963). We need not r econcile this caselaw,

however, because the magistrate issued a sear ch warrant

before the officers recovered the contraband, and this act of

independent judgment breaks the chain of causation

between the illegal detention and Hector's subsequent legal

costs.

As the majority recognized, the most dir ectly pertinent

Supreme Court decision is Malley v. Briggs , 475 U.S. 335,

106 S.Ct. 1092 (1986). In Malley, the Court considered an

officer's liability under S 1983 for pr esenting an insufficient

affidavit to a judicial officer who issued a warrant resulting

in the plaintiff 's arrest. The Court rejected the District

Court's reasoning that the judicial officer's decision to issue

the warrant, despite lacking necessary infor mation, broke

the "causal chain between the application for the warrant

and the improvident arrest." The Court stated that "a

reasonably well-trained officer in [the same] position would

have known that his affidavit failed to establish probable

cause," and an "officer then cannot excuse his own default

by pointing to the greater incompetence of the magistrate."

Id. at 345, 346 n.9. Three points should be taken from

Malley.

First, a magistrate's issuance of a warrant, generally,

does not necessarily insulate an officer fr om damages that

occur as a result of illegal activity that takes place before

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the receipt of the warrant. Second, the operative

determination for the Court was whether the officer should

have foreseen that his violation would pr oduce the damage

to the plaintiff, and in Malley this question was specifically

whether the officer should have known that his submission

of the insufficient affidavit would result in the arrest. For

the officers here, surely they could have foreseen that their

violation (illegally detaining Hector) could r esult in the

damages (legal fees).

Third, Malley is distinguishable fr om the facts here

because the officer's violation in Malley pertained directly to

the magistrate's inability to make an independent judgment

regarding the warrant. The warrant in Malley was not the

result of a truly independent decision by a magistrate, but

rather was contaminated and compromised by the officer's

misinformation. This requirement that a decision of a

prosecutor, sentencer, or other court officials will only

constitute an intervening cause if the decision is genuinely

free from deception or coercion is enforced by several

Courts of Appeal. See Townes, 176 F .3d at 147 (stating that

an exercise of independent judgment breaks chain of

causation "in the absence of evidence that the police officer

misled or pressured the official who could be expected to

exercise independent judgment"); Myers v. County of

Orange, 157 F.3d 66, 74 (2d Cir. 1998); Barts v. Joyner,

865 F.2d 1187, 1197 (11th Cir. 1989) (finding intervening

acts break chain of causation "in the absence of a showing

that the police officers deceived the court officials or unduly

pressured them or that the court officials themselves acted

with malice and the police joined with them."); Jones v. City

of Chicago, 856 F.2d 985, 994 (7th Cir . 1988) ("[A]

prosecutor's decision to charge, a grand jury's decision to

indict, a prosecutor's decision not to dr op charges but to

proceed to trial--none of these decisions will shield a police

officer who deliberately supplied misleading infor mation

that influenced that decision."); Lanier v. Sallas, 777 F.2d

321, 325 (5th Cir. 1985); Dellums v. Powell, 566 F.2d 167

(D.C. Cir. 1977), cert. denied, 438 U.S. 916 (1978).

Although here the warrant arrived too late to excuse the

initial detention, Hector has suffered no damages as a

result of that detention. Otherwise, the independence of the

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magistrate's judgment was not compromised in any way.

Malley is therefore materially distinguishable.

The Fifth Circuit Court of Appeals offers two persuasive

opinions holding that "if the facts supporting an arrest are

put before an intermediate such as a magistrate or grand

jury, the intermediate's decision breaks the causal chain,"

Rodriguez v. Ritchey, 556 F.2d 1185, 1193 (5th Cir. 1977)

(en banc); Smith v. Gonzales, 670 F.2d 522 (5th Cir. 1982),

and a third stating that "even an officer who acted with

malice in procuring the warrant . . . will not be liable if the

facts supporting the warrant or indictment ar e put before

an impartial intermediary." Hand v. Gary, 838 F.2d 1420,

1427 (5th Cir. 1988). The Hand Court also emphasized, in

accordance with Malley, that the chain of causation is only

broken where all the facts are pr esented to the independent

intermediary or where an officer's indiscretion does not

cause any relevant information to be withheld from the

independent intermediary. As Hand summarized, any

"misdirection of the magistrate or the grand jury by

omission or commission perpetuates the taint of the

original official behavior." Id. at 1428. Several district courts

have followed these three Fifth Circuit opinions on this

issue. See Johnson v. Davenport, 2000 WL 341255 (N.D.

Tex. 2000); Paddio v. City of Hammond, 1997 WL 289704

(E.D. La. 1997); Hamrick v. City of Eustace, 732 F.Supp.

1390 (E.D.Tex.1990); Taylor v. City of Nederland, Tex., 685

F.Supp. 616 (E.D. Tex. 1988); V on Williams v. City of Bridge

City, Tex., 588 F.Supp. 1187 (E.D. Tex. 1984); Farmer v.

Lawson, 510 F.Supp. 91 (N.D. Ga. 1981).

There is nothing in the record to indicate, nor have the

parties claimed, that the officers undermined the

magistrate's independence of judgement and autonomous

determination to issue the warrant. Absent any such

subterfuge, and in conjunction with the decision of the

prosecutor, the grand jury indictment, and the general

policy concerns expressed in the majority opinion, I would

find that the officers do not bear legal r esponsibility for the

costs accrued after the initial illegal detention.

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A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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