Petitioners Brief — Wallace v. Kato

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No. 05-1240 om aie |

x OFFIC or THE CLERF

IN THE 2

SUPREME COURT OF THE UNITED STATES

ANDRE WALLACE

Petitioner.

CHICAGO POLICE OFFICERS

KRISTEN KATO AND EUGENE Roy.

Respondents.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR PETITIONER

ANDRE WALLACE

KENNETH N. FLAXMAN

(Counsel of Record)

200 South Michigan Avenue

Suite 1240

Chicago, Illinoise60604

(312) 427-3200 ©

(312) 427-3930 (fax)

JOHN J. BURSCH

Warner Norcross & Judd LLP

111 Lyon St NW

Grand Rapids, Michigan 49503

(616) 752-2474

(616) 222-2474 (fax)

Counsel for Petitioner

QUESTION PRESENTED

When does a claim for damages arising out of a

false arrest or other search or scizure forbidden by the

Fourth Amendment accrue when the fruits of the

search were introduced in the claimant's criminal tnal

and he was convicted?

-lI-

TABLE OF CONTENTS

OPINIONS BELOW

JURISDICTIONAL STATEMENT

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED . ,

STATEMENT .

1. Arrest and Confession

2. State Court Proceedings

3. Federal Court Proceedings

SUMMARY OF ARGUMENT .

ARGUMENT

1. Introduction

2. The Rule of Accrual of Heck v. Humphrey

and a Cause of Action for the ‘‘Injury”’ of

Being Convicted ‘

A. Success on Petitioner’s False Arrest

Claim Before Dismissal of the Cnminal

Charges Would Have Necessarily Implied

the Invalidity of Any Conviction .

13

14

B. Incarceration on the Basis of a Confes-

sion Obtained by Exploiting a False

Arrest Is a *‘Continuing Seizure’ in Vio-

lation of the Fourth

Amendment

3. Lessons from the Common Law

A. False Arrest and False

Imprisonment .

B. Malicious Prosecution

4. The Hazeltine Rule

5. The Rule of Accrual Applied in Attorney

Malpractice Cases . a a

6. Dangers of the Seventh Circuit's

oe

CONCLUSION

-iV-

TABLE OF AUTHORITIES

CASES

Adkins v. Dixon, 253 Va. 275

SBE SE.26. TPT LEGGT) cxteciscnstistcnctanctaigiiinniatadiael ae

Adler v. Beverly Hills Hosp.,

594 S.W.2d 153 (Tex.Civ.App. 1980) 0.0... 25

Albright v. Oliver,

St US. Ae (ISSO) ..ntrinntnannionk 17-20, 22, 27

Allen v. McCurry, 449 U.S. 90 (1980) ..0... ee 32

Allen v. Shed, 10 Cush (64 Mass.) 375 (1852) ......... 26

Anderson vy. Franklin County, 192 F.3d 1125

COGS CAD, BOP B) ccecincissohsccnnisticcitaistilaieaigasaiidiaalinciass 16

Awabdy v. City of Adelanto, 368 F.3d 1062

(SER Ca. BIG) vnccncersscncisdiivscsioshaniatepeniiistaiamiiiamanaian 27

Ballenger v. Owens, 352 F.3d 842 (4th Cir. 2003) .. 32

Bauer v. Borough of Cliffside Park,

225 N.J.Super. 38 541 A.2d 719 (1988) ........ 15, 24

Belflower v. Blackshere, 281 P.2d 423

(ORD. EDIE). anivicncerciinashvstsubsiodiiaitipdeiaaiiinnie aman 25

Berringer v. Steele, 133 Md.App. 442,

TSO ADE FF4-GOGD ssticiinscnsoncstideisaibapiihiimiiaias 31

Board of Regents v. Tomanio,

446 US. STB CEG . scsscsctincspitccctnaniihiaitininaiiaaiiadis 112

Bonesteel v. Bonesteel, 30 Wis. 511,

SS7e Wie SERD. PS CEFD hcteneciincsiicndtnntinaitiantinn 26

Britt v. Legal Aid Soc., Inc., 95 N.Y.2d 443,

meee & FO Eee 31-32

Brosseau v. Haugen, 543 U.S. 194 (2004) 2.0.0... 3

California v. Hodari D., 499 U.S. 621 (1991) ......... 10

California v. Minjares, 443 U.S. 916 (1979) .......... 33

Canaan v. Bartee, 276 Kan. 116,

Re 31

Caperton v. Bowver, 81 U.S. 216 (1871) ............. 23

Carey v. Piphus, 435 U.S. 247 (1978) .........cccceee 23

Cira y. Dillinger, 903 So.2d 367 (Fla.App. 2005) ... 31

City of Monterey v. Del Monte Dunes at

Monterey, Ltd, 526 U.S. 687 (1999) ..............ee 28

Collins v. Los Angeles County,

241 Cal.App.2d 451,

Se ES UP GETIED ccccctcsccenscecscsnccsesonsnsnsios 24-25

County of Riverside v. McLaughlin,

I iii 10

Covington v. City of New York, 171 F.3d 117

REST EEE RE ae aa 15

DiBella v. Borvugh of Beachwood,

a ee ONE IRL GEIIIEPD secenicccoctnnnecsntcunitinitanats 21

Dunaway v. New York, 442 U.S. 200 (1979) ........... 10

Estate of Smith v. Marasco, 318 F.3d 497

NR EC ae eee een 27

Fontana y. Haskin, 262 F.3d 871 (9th Cir. 2001) .... 21

Gallo v. City of Philadelphia, 161 F.3d 217

IPN: TEENIE Wuistinditionssdthtaintieanhetnigilbntghiuniengniniaptiaiiipin 22

Garcia v. City of Chicago, 24 F.3d 966

I a ite 20

o Yi e

Gauger v. Hendle,

349 F.3d 354 (7th Cir. 2003) ...................... 6, 14, 20

Gerstein v. Pugh, 420 U.S. 103 (1975) oo... 10

Gibson v. Superintendent of New Jersey

Dept. of Law, 411 F.3d 427 (3d Cir. 2005) .......... 14

Gibson vy. Trant, 58 §.W.3d 103 (Tenn. 2001) ......... 32

Glaze v. Larsen, 207 Ariz. 26, 83 P.3d 26

Glenn v. Aiken, 409 Mass. 699,

_ 2 * & & |; | SRSER Seance 31

Gomez v. Toledo, 446 U.S. 635 (1980)... 26

Gregory v. City of Louisville, 444 F.3d 725

NT, SR i i ee

Grubbs v. Bailes, 445 F.3d 1275 (10th Cir. 2006) ... 27

Hartman v. Moore, 126 S.Ct. 1695 (2006) .............. 23

Harvey v. Waldron, 210 F.3d 1008

SIRs: GUI Sai aah a 16

Heck v. Humphrey, 512 U.S. 477 (1994) .......... passim

Henry v. United States, 361 U.S. 98 (1959) ............ 10

Hernandez v. Sheahan, 455 F.3d 772

(7th Cir., No. 04-2246, July 26, 2006) ................. 17

Heron v. Strader, 361 Md. 258,

ee ate I : ci Sediiitsactnintseisianionsiiiila 25

Hicks v. Nunnery, 253 Wis.2d 721,

643 N.W.2d 809 (Wis.App. 2002) .0........cccecceeeees 32

Hudson v. Hughes, 98 F.3d 868 (5th Cir. 1996) ...... 15

-

- Vil -

Hudson v. Michigan, 126 S.Ct. 2159 (2006) ............ 30

Huggins v. Toller, 64 Ky (1 Bush) 192,

RB, Een

Hughes v. Lott, 350 F.3d 1157 (11th Cir. 2003) ...... 17

Imbler v. Pachiman, 424 U.S. 409 (1976) ................ 28

Jackson vy. Police Dept. of City of New York,

500 N.Y.S.2d 553 (N.Y.A.D. 1986) ...................... 25

Jedzierowski v. Jordan, 157 Me 352,

gee} 2). | Re eo,

Johnson v. Rivera, 272 F.3d 519 (7th Cir. 2001) ..... 12

Kirwan y. State, 31 Conn.Supp. 46,

8 I ee

Lambert v. Williams, 223 F.3d 257

4 BO ESE ah

Laurino v. Tate 220 F.3d 1213 (10th Cir. 2000) ...... 14

Lauro v. Charles, 219 F.3d 202 (2d Cir. 2000) ....... 21

Lee v. City of Chicago, 330 F.3d 456

FFU ay SUED” sctrestieliicdiisipdiciniiannsinssobobetennindeiietabin 20

Matovina v. Hult, 125 Ind.App. 236,

fk fg gE RE ESS TS eseraercesense 25

McCullah v. Gadert, 344 F.3d 655

CR TEE: SEED setincicbddcbpiottiecntDbscasehensnehibetnictetetiosiens 17

McCune v. City of Grand Rapids, 842 F.2d 903

SES PUNE cxsnadiieniedeiteatusiiledhniinhchictietitekiicipsbipibiontd 33

Mitchum v. Foster, 407 U.S. 225 (1972) ............20.... 30

- Vill -

Mobley vy. Broome, 248 N.C. 54,

102 S.E.2d 407 (1958), overruled on

unrelated grounds by Fowler v. Valencourt,

334 N.C. 345, 435 S.E.2d 530 (1993) 00. 25

Monroe vy. Pape, 365 U.S. 167 (1961) ... 11, 12, 26, 28

Moran vy. Clarke, 296 F.3d 638 (8th Cir. 2002) ....... 27

Morgano v. Smith, 110 Nev. 1025,

og BE eee 31

Clty of Mound Bayou v. Johnson, 562 So.2d 1212

SD: POON . ctpecdinsistnpicsessntcinisnenisialstligtaetanieenitands 24

Nave vy. City of Seattle, 68 Wash.2d 721,

eS WP IED ciiccsniitahinaitacecpedncbdincsnidatainnteanints 25

Nawrocki v. Eberhard Foods, Inc.,

24 Mich.App. 646, 180 N.W.2d 849 (1970) ......... 2S

New York y. Harris, 495 U.S. 14 (1990) ............. 7, 28

Newsome v. McCabe, 256 F.3d 747

(7th Cir. 2001), opinion on denial of rehearing,

re ope ge Te ot ee 20

Nieves v. McSweeney, 241 F.3d 46 (1st Cir. 2001) .. 15

Noske v. Friedberg, 656 N.W.2d 409

RE IED | ehisenisninestnicsitnincinnieabinenciontcinions 32

O'Fallon v. Pollard,

427 N.W.2d 809 (N.D. 1988) .................cseseceeeeeees 25

Oosterwyk v. Bucholtz, 250 Wis. 521,

ae Ie CD > bnersaicbertiedbtrtcnininaslanesapibin 25

Oregon v. Guzek, 126 S.Ct. 1226 (2006) ................. 32

° §% -

Owens v. Harrison, 120 Wash.App. 909,

A ef Re TaD *

Paulsen y. Cochran, 356 Ill.App.3d 354,

ED AA RE CRIED sechipitcaduensnnictonndiontnsiotiiaiconies 3]

Peeler v. Hughes & Luce, 909 S.W.2d 494

Ses UE <, wetcdicteanntnticoneicenithieebhitiantepnaiigenntpesite: a

People v. Wallace, 299 Ill.App.3d 9,

Pe INE II sciceccctciandinigtiitiatinnpinlinioneiéenies 5

People v. Wallace, 197 Il.2d 582,

Oe we Te eeeenncreeee 6

People v. Wallace, 324 Ill.App.3d 1139,

805 N.E.2d 756 (2001) (table) ...............cscscccseseees 6

Perma Life Mufflers, Inc. v. International

Parts Corp., 392 U.S. 134 (1968) ..........ccceeeeeeeeeee 30

Pierce v. Gilchrist, 359 F.3d 1279

CONS CE SRE» bcdtnstresidtesinninchnsciecicnepedesicaiildediliesias 28

Radovich \. National Football League,

Fe Ws Se CES. snieiirtaettndilnensndsiscsncideenntaniaite 30

Reed vy. City of Chicago, 77 F.3d 1049

EA ie, UNDE: cicitenidleindien sibedimenctthiinlintaninenocentians 17

Riley v. Derton, 115 F.3d 1159 (4th Cir. 1997) ....... 21

Robinson v. Southerland, 123 P.3d 35

GERI SUTRA, GUD cctecescsrstrtecetsnnsntanictintoniens 31-32

Shamaeizadeh v. Cunigan, 182 F.3d 391

GENE Gee! CPE sercnninctitentinsbiiiehapiorinsitibieleecneinbeasiadidegh 16

Shaw v. State, Department of Admin.,

OR A Be PO | ene 31

Simanton v. Caldbeck, 96 Vt. 523,

See Phe GES CEM ctcteidcttinisptsesdsahiseocciswinteontentnian 26

Smith v. Wade, 461 U.S. 30 (1983) oo.ccceceeceeeeeee 22

Stafford v. Muster, 582 S.W.2d 670 (Mo. 1979) ...... 25

Stanford v. City of Manchester, 246 Ga.App.129,

FO EE iisictadinlicicnsmcesesistinipdninminhacnies ae

Stephens vy. Denison, 150 S.W.3d 80

FI BPO kcncctcintatihiessintnhsinciiaievnensiivactniatncants 31

Stevens v. Bispham, 316 Or. 221,

8 Fs. EEE *

Thacker v. City of Columbus, 328 F.3d 244

SEE GED Aosnsnenccntinecansbicitsinabemadunmiaietedeinliones 27

Thierrien v. Sullivan, 891 A.2d 560 (N.H. 2006) ..... 3]

Trobaugh v. Sondag, 668 N.W.2d 577

SE IED « sostthcncnsncinibcininiiindenpddipoedeapibicimnensontniven 3]

Uboh v. Reno, 141 F.3d 1000 (11th Cir. 1998) ...... 116

Washington v. County of Rockland, 373 F.3d 310

Ge Sees RO daaecccbbchtladesicpitpciesecitinhpebenaiiettnabebiots 27

Whirl v. Kern, 407 F.2d 781 (Sth Cir. 1969) ........... 23

Whiting v. Traylor,

85 F.3d 581 (11th Cir. 1996) ....0..00.... 16, 21, 22

Wiley v. City of Chicago, 361 F.3d 994

COREE el: GED cxsvintorsiiiniesncetiiatbinnessnpetinmmenent 6, 20

Wiley v. County of San Diego, 19 Cal.4th 532,

pee Fm LT, | eee 31

- xi -

Wilkins v. May, 872 F.2d 190

ERIE I BOPIE dcsechepstndnctjaiesasinmbnsocactctnnconsopescons 18, 20

Wilson v. Garcia, 471 U.S. 261, 276 (1985) .......... » 42

Wolf v. Colorado, 338 U.S. 25 (1949) oo... 12

Wood v. Kesler, 323 F.3d 872 (11th Cir. 2003) ....... 27

Zenith Radio Corp. v. Hazeltine Research, Inc.,

BOE EIB. DoE CEWTE) ccciccrcrcccectccvevsvccessssccecees 6, 29-30

STATUTES

42 U.S.C. $1983. ......... sisi acleiiatiogaiiitennieeisititines passim

Fe RAGE SU RPAED seiesestctsctenpsscoctecctctmtesnevepsiatensnveees 12

OTHER AUTHORITIES

3 W. Blackstone, Commentaries on the

Laws of England 127 (1769) ...cccccccceseseeeeeeeee 23-24

F. Harper, Malicious Prosecution,

False Imprisonment and Defamation,

tee ae ee OD: en

W. Keeton, D. Dobbs, R. Keeton, & D. Owen,

Prosser and Keeton on Law of Torts 888

CG GE, FD wicca tebtitereretatstescipiietrasensseseeoresesin 26

1 F. Harper, F. James, & O. Gray,

The Law of Torts §4.3 (2d ed 1986) .......:cccccceeeee 27

1 F. Harper, F. James, & O. Gray,

The Law of Torts §4.7 (2d ed 1986) ........:.:cccc000 28

No. 05-1240

IN THE

SUPREME. COURT OF THE UNITED STATES

ANDRE WALLACE

Petitioner.

CHICAGO POLICE OFFICERS

KRISTEN KATO AND EUGENE Roy,

Respondents.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR PETITIONER

OPINIONS BELOW

The decision of the Court of Appeals (Pet.App. |-

18) and the opinion of Judge Posner dissenting from

the denial of rehearing en banc (Pet.App. 19-28) are

reported at 440 F.3d 421. The opinions of the district

court (Pet.App. 30-36, 37-52) are not officially

reported.

JURISDICTIONAL STATEMENT

The jurisdiction of this Court was invoked under 28

U.S.C. §1254 in a petition filed on March 22, 2006.

The Court granted the petition on June 19, 2006.

i)

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

This case involves the Fourth Amendment to the

Constutuuion of the United States:

The night of the people to be secure in their

persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be

violated, and no Warrants shall issue, but upon

probable cause, supported by Oath = or

affirmation, and particularly describing the place

to be searched, and the persons or things to be

seized.

This case also involves 42 U.S.C. §1983:

Every person who. under color of any statute,

ordinance, regulation, custom, or usage, of any

State or Territory or the Distnct of Columbia,

subjects, or causes to be subjected, any citizen

of the United States or other person within the

jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the

party injured in an action at law, suit in equity,

or other proper proceeding for redress, except

that in any action brought against a judicial

officer for an act or omission taken in such

officer’s judicial capacity, injunctive relief shall

not be granted unless a declaratory decree was

violated or declaratory relief was unavailable.

For the purposes of this section, any Act of

Congress applicable exclusively to the District

of Columbia shall be considered to be a statute

of the District of Columbia.

STATEMENT

Petitioner tiled this action under 42 U.S.C. §1983

seeking damages for the eight years he was incar-

cerated following his arrest in 1994. The core of

peuuioner’s claim ts that he was arrested without prob-

able cause and held in custody for eight years because

respondents, Chicago police officers, exploited the

unlawful arrest to obtain a false confession which was

the basis for peutioner’s conviction.

Petitioner filed this damage action in 2003 after his

convicuon had been reversed and criminal charges

dismissed. The district court granted summary judg-

ment to respondents, and the court of appeals affirmed,

concluding that_petiuoner’s cause of action had accrued

when he was arrested in 1994 and was therefore barred

by the statute of limitations. Petitioner's claim would

be tumely if his cause of acuion accrued when the cnm-

inal charges were dismissed in 2002.

1. Arrest and Confession

On January 17, 1994, a man named John Handy

was shot and killed in Chicago. (Pet.App. 2.) Two

days later, Chicago police officers Roy and Kato,

respondents in this Court, came upon petitioner on the

Street near the scene of the murder. (J.A. 7.) Respon-

dents handcuffed petitioner and and transported him to

a police station. (J.A. 9.) Petitioner was only 15 years

—

1. Petitioner sets out the facts and reasonable inferences in

his favor because this case arises from the grant of a

motion for summary judgment to respondents.

Brosseau v. Haugen, 543 U.S. 194, 195 n.2 (2004). ~

of age. (Pet.App. 3.)

Respondents locked petitioner into an “interview

room" at the police station. (J.A. 8.) There, petitioner

told respondents that he was seventeen years of age,

that he was not involved in the Handy homicide, and

that he had an alibi. (Sworn Declaration of Andre

Wallace, Exhibit | to Record Item No. 31, par. 5.)

Throughout the night, respondents interrogated petu-

tioner by playing "good cop/bad cop.” (Pet.App. 3.)

As the "bad cop,” Kato slapped petitioner on his face,

(Sworn Declaration, supra, par. 14(1)), kicked peti-

uioner on his knee, (Sworn Declaration, supra, par.

14(11)), and squeezed, pentioner’s testicles. /d.

Kato would walk in and out of the interview room

during the interrogation and be replaced by respondent

Roy, who would plead with petitioner "to confess so

that he could stop Kato from hurting me.” (Sworm

Declaration, supra, par. 14(viil).) Roy would leave

when Kato returned; Kato would then "“vell, threaten,

and curse.” (Sworn Declaration, supra, par. 14(1x).)

One of these threats was that if petitioner did not con-

fess to involvement in the Handy homicide, Kato "was

going to talk to me with his hands," which petitioner

understood to mean that Kato "was going to beat me

unless I made a false confession." (Sworn Declaration,

supra, par. 14(iv).)

The interrogation continued through the night.

(Sworn Declaration, supra, par. 14(x).) Respondents

’ kept petitoner awake, and did not allow him to use the

bathroom. (Sworn Declaration, supra, par. 14(xi).)

After Kato promised petitioner that he could go home

if he confessed (Sworn Declaration, supra, par. 14(iv)),

petitioner vielded to the coercive tactics and signed a

written incriminatory statement. (J.A. 11.) This con-

fession was false. (Sworn Declaration, supra, pars. 7,

14, I4civ), 14¢vin), 14(x).) Pettuoner did not shoot

Mr. Handy, (Sworn Declaration, supra, par. 11), was

not present when Handy was shot, (Sworn Declaration,

supra, par. 12), and does not know who shot Handy.

(Sworn Declaration, supra, par. 13.)

Based on the confession, and with no other evi-

dence to corroborate his involvement in the homicide,

petitioner was charged with murder and prosecuted as

an adult.-

2. State Court Proceedings

The state trial judge denied motions challenging the

arrest and seeking to suppress petitioner's confession.

(J.A. 11.) Petitioner did not present any evidence at a

bench tral and was found guilty of murder. (J.A. 14-

15.) On direct appeal, the Illinois Appellate Court

concluded that plainuff had been unlawfully arrested,

(J.A. 15-19), and remanded the case for an attenuation

hearing. People v. Wallace, 299 Ill.App.3d 9, 701

N.E.2d 87 (1998) (J.A. 6-23.)

The trial judge reinstated petitioner's conviction on

remand, but the Illinois Appellate Court reversed in an

unpublished opinion, People v. Wallace, 299 Lll.App.3d

2. A percipient witness who had been “face-to-face” with

Handy’s assailant, (J.A. 7), did not identify petitioner.

(J.A. 10.)

9, 701 N.E.2d 87 (1998), (L.A. 24-35), holding that the

confession was the tainted fruit of the unlawful arrest,

(J.A. 34), and remanded for a new tnal. Review was

denied by the Illinois Supreme Court, People v. Wal-

lace, 197 Il.2d 582, 763 N.E.2d 776 (2001) (table).

The prosecutor dismissed all charges against pettuoner

on Apnil 10, 2002. (Pet.App. 4.)

3. Federal Court Proceedings

Peuuioner filed this action on April 3, 2003, less

than one vear after his release, raising several state and

federal claims. The district court granted summary

judgment to respondents on many of petitioner's

claims, (Pet.App. 30-37), and permitted petitioner to

file an amended complaint. (J.A. 2.)

Petitioner alleged in his amended complaint that he

had been deprived of rights secured by the Fourth and

Fourteenth Amendments when he was arrested in 1994

and when testimony about his post-arrest inculpatory

Statement was used against him at trial. (Record Item

No. 25.) The district court granted summary judgment

to respondents on these claims. (Pet.App. 38-51.)

A panel of the Seventh Circuit affirmed, holding

that petitioner's claims about his arrest and subsequent

confession were time barred. (Pet.App. 18.) The

panel invoked a circuit rule that permits a panel to

reverse a prior decision of the court of appeais by cir-

culating its proposed decision to all active members of

the court and inviting a vote on rehearing en banc.

(Pet.App. 2 n*.) Using this rule, the panel overruled

two of the Seventh Circuit’s recent decisions, Gauger

v. Hendle, 349 F.3d 354 (7th Cir. 2003) and Wiley v.

City of Chicago, 361 F.3d 994 (7th Cir. 2004), and

~~

adopted a brrzht line rule that all claims “for false

arrest or similar Fourth Amendment violations” accrue

at the time oF arrest. (Pet.App. 13.) The court of

appeals believed its rule was “an arguable extension"

of Heck v. Humphrey, 512 U.S. 477 (1994), (Pet. App.

12), justified because "a clear accrual rule is superior to

a case-by-case rule.” (Pet.App. 14.)

Judge Posner wrote a lengthy dissent from the

refusal of the court of appeals to re-hear the case en

banc, (Pet.App. 19-28), pointing out that the bnght line

rule adopted by the panel was at odds with Heck v.

Humphrey, supra, because “a civil rights suit ts not a

permissible vehicle for a collateral attack on a convic-

tion.” (Pet.App. .19.) Judge Posner noted that the

panel decision departed from "[e]very other case to

address the issue,” (Pet.App. 19), and described the

panel's rule as “flouting conventional statute of limita-

tions principles,” (Pet.App. 27), because it requires a

$1983 plainutf “to sue before you have a claim."

(Pet.App. 21.)

SUMMARY OF ARGUMENT

It is by now a “familiar proposition that the indirect

fruits of an illegal search or arrest should be

suppressed when they bear a sufficiently close relation-

ship to the underlying illegality.” New York v. Harris,

495 U.S. 14, '9 (1990). This rule was applied by the

Illinois Appellate Court when it twice reversed

petuoner’s cnminal conviction. Petitioner remained in

custody from his arrest on January 19, 1994 until Apnl

10, 2002, when the prosecution, all of its evidence hav-

ing been suppressed, dismissed the criminal case.

After he was released from custody, petitioner filed

this action under 42 USC. §1983, seeking money

damages from the officers who had exploited the

unlawful arrest to obtain a false confession. The

Seventh Circuit held that petitioner's claims were

barred by the statute of limitations, concluding that the

only $1983 claim which arises from an arrest without

probable cause accrues at the ume of arrest.

The Seventh Circuit's reading of petiuoner’s claims

is at odds with the plain language of the Fourth

Amendment and disregards accepted and ordinary prin-

ciples of causation: petitioner was subjected to an

unreasonable seizure for the eight years that he was

held in custody on the tainted fruit of the unlawful

arrest; being held in custody was the natural conse-

quence of respondents’ actions to exploit the false

arrest to secure a confession.

The Court established the appropriate rule of

accrual for the claim presented in this case in Heck vy.

Humphrey, 512 U.S. 477 (1994), when it held that a

§1983 claim secking to recover “damages for [an]

allegedly unconstitutional conviction or imprisonment"

does not accrue until “the conviction or sentence has

been reversed on direct appeal, expunged by executive

order, declared invalid by a state tnbunal authorized to

make such determination, or called into question by a

federal court’s issuance of a wnt of habeas corpus.”

Id. at 486-87.

The Seventh Circuit's accrual rule is an unwar-

ranted “extension” of the Heck rule and is based on the

Seventh Circuit's view that §1983 does not provide a

remedy “for the ‘injury’ of being convicted and

imprisoned,” Heck v. Humphrey, 512 U.S. at 487 n.?,

when, as here, a conviction rests on the tainted fruit of

an unlawful arrest, that conviction has been overturned

on direct appeal, and the $1983 claimant ts released

from incarceration. (Pet.App. 16-17.) The Seventh

Circuit stands alone on these issues and its decision

should be reversed.

The rule of accrual advocated by petitioner is con-

sistent with the accrual of a common law action for

false imprisonment; the “almost universal rule” ts that a

claim for false imprisonment accrues on the termina-

tion of the impnsonment. Petitioner's rule of accrual

1s also consistent with the rule adopted by the Court in

Zenith Radio Corp. v. Hazeltine Research, Inc., 401

U.S. 321 (1971) for accrual of a claim for future dam-

ages that may result from an antitrust conspiracy.

Finally, petitioner's rule of accrual is also consistent

with the rule followed in the majority of the states for

accrual of attorney malpractice cases that arise from

criminal prosecutions.

The Seventh Circuit stands apart from all other cir-

cuits with its view that all false arrest claims accrue at

the time of arrest. The Seventh Circuit's rule, if

allowed to stand, will result in the needless filing of

innumerable false arrest claims, filings necessary to

preserve the claims in the event that a conviction 1s

eventually overturned.

The Court should reverse the Seventh Circuit and

hold that when a plaintiff in a §1983 action claims that

police officers exploited an unlawful arrest to obtain

evidence which is the basis for a criminal prosecution,

a cause of action for the injury of being convicted and

- 10-

imprisoned accrues when the criminal charges are

resolved in favor of the arrestee.

ARGUMENT

-

1. Introduction

Respondents, Chicago police officers Cato and Roy,

arrested petitioner on January 19, 1994. The officers

did not have a reasonable belief that petitioner had

committed an offense, and the arrest was an “unreason-

able seizure” proscribed by the Fourth Amendment.

Respondents exploited the unlawful arrest to obtain

a confession from petitioner: Respondents took the

then 15 year old petitioner into custody at about 8:00

p.m. on January 19, 1994 and transported him to a pol-

ice station. (J.A. 25.) There, instead of providing peu-

tioner with the judicial determination of probable cause

required by the Fourth Amendment,’ respondents

misused the warrantless seizure to gather “additional

evidence to justify the arrest." County of Riverside v.

McLaughlin, 500 U.S. 44, 56 (1991). Respondents

3. The Fourth Amendment's protection against

“unreasonable ... scizures" includes seizure of the

person. Henry v.- United States, 361 U.S. 98, 100

(1959); Dunaway v. New York, 442 U.S. 200 (1979);

California v. Hodari D., 499 U.S. 621, 624 (1991).

4. In Gerstein v. Pugh, 420 U.S. 103 (1975), the Court

held that the Fourth Amendment required that persons

arrested without a warrant must receive a post-arrest

judicial determination of probable cause.

locked petitioner into an interview room and used

“good cop/bad cop” tactics during the all-night interro-

gation.” See ante at 4-5. Petitioner made an incnm-

inating oral statement at 4:30 a.m. the next morning,

(J.A. 17), and a full, albeit false, confession shortly

thereafter, at 6:45 a.m. (J.A. 10.)

Petiioner was incarcerated for more than eight

years—from his arrest on January 19, 1994 untl he

was released from custody on April 10, 2002—because

the prosecution relied on a false and unconstitutionally

procured confession to obtain an indictment and a con-

viction. The state appellate court twice reversed

petiuioner’s conviction, holding in the first appeal that

petitioner had been unlawfully arrested (J.A. 17-18),

and concluding in a second appeal that pettioner’s

confession was inadmissible because it had been

obtained by exploiting the unlawful arrest. . (J.A. 34.)

Having no admissible evidence, the prosecution

dismissed the case.

Since Monrve v. Pape, 365 U.S. 167 (1961), it has

been settled that 42 U.S.C. $1983 provides a damage

5. The state trial judge denied petitioner's motion to

suppress on voluntariness grounds; petitioner did not

challenge this ruling on direct appeal. The district court

held that collateral estoppel prohibited pettuoner from

challenging the voluntariness of the confession.

(Pet.App. 43-49.) The court of appeals did not reach

this issue. (Pet.App. 18.) The voluntariness of the

confession is not before the Court.

remedy for a person who has been subjected to an

unreasonable seizure in violauion of the Fourth Amend-

ment.® The question in this case is whether petoner s

cause of acuon for the unreasonable seizure accrued

when he was arrested in 1994, or when he was

released from custody in 2002: Petitioner's §1983

claim is barred by the statute of limitations if his claim

accrued in 1994, but umely if the claim accrued in

2002.

6. The Court held in Wolf v. Colorado, 338 U.S. 25

(1949), that the protections of the Fourth Amendment

are “implicit in ‘the concepuon of ordered liberty’ and

as such [are] enforceable against the States through the

Due Process Clause.” /d. at 38. The Court held in

Monroe v. Pape, supra, that 42 U.S.C. $1983 provides a

remedy for violations of the Fourth Amendment against

persons who had acted under “color of state law.” /d. at

187.

7. While federal law determines when a §1983 cause of

action accrues, Heck v. Humphrey, 512 U.S. 477, 489

(1994), the duration of the statute of limitations for

§1983 claims is borrowed from the state's general

Statute of limutauens for personal injury actions. Wilson

v. Garcia, 471 U.S. 261, 276 (1985). Section 1983

claims arising in Illinois are therefore governed by a

two year statute of limitations. Johnson v. Rivera, 272

F.3d 519, 521 (7th Cir. 2001).

Tolling of the statute of limitations is determined by

state law. Board of Regents v. Tomanio, 446 U.S. 478

(1980). In Illinois, the statute of limitations on a claim

accruing to a person under the age of 18 is tolled until

he (or she) attains that age. 735 ILCS 5/13-211.

Petitioner became eighteen years of age on November 7,

<.

2. The Rule of Accrual of Heck v. Humphrey and a

Cause of Action for the “Injury” of Being Convicted

The Court established a rule of accrual for $1983

actions in Heck v. Humphrey, 512 U.S. 477 (1994),

holding that a §1983 claim seeking to recover “dam-

ages for [an] allegedly unconstitunonal conviction or

imprisonment” does not accrue until "the conviction or

sentence has been reversed on direct appeal, expunged

by executive order, declared invalid by a state tibunal

authorized to make such determination, or called into

question by a federal court’s issuance of a wnt of

habeas corpus.” /d. at 486-87. The Court held that

this accrual rule would apply to any §1983 action

where success for the claimant "would necessarily

imply the invalidity of his conviction or sentence." /d.

at 487.

The Seventh Circuit held in this case that a suc-

cessful $1983 action arising out of a false arrest, when

the fruits of the arrest had been inuoduced in the

claimant's criminal tnal to secure a conviction, can

never imply the invalidity of a conviction. (Pet.App.

13.) This holding is compelled by the mistaken view

of the court below that §1983 does not provide a

remedy "for the ‘injury’ of being convicted and

a -t—C#te ——-— — — — ———- ———. =

1997. If petitioner's cause of action accrued when he

was arrested in 1994, the statute of limitations would

have expired on Monday, November 8, 1999, nearly two

years before the Illinois Appellate Court reversed

petitioner's conviction.

°F

imprisoned,” Heck v. Humphrey, 512 U.S. at 487 n.7,

even when, as in this case, a conviction rests on the

tainted fruit of an arrest without probable cause, that

conviction has been overturned on direct appeal, and

the §1983 claimant is then released from incarceration.

(Pet.App. 16-17.) The Seventh Circuit stands alone on

these issues and its decision should be reversed.

A. Success on Petitioner's False Arrest Claim Before

Dismissal of the Criminal Charges Would Have

Necessarily Implied the Invalidity of Any Conviction

All of the evidence available to the prosecution at

petitioner s trial was the fruit of his arrest. Before the

decision of the Seventh Circuit in this case, the courts

of appeals were in agreement that Heck v. Humphrey

barred petitioner's false arrest claim unul his convic-

tion was invalidated because "all the evidence to be

presented was obtained as the result of an illegal

arrest." Laurino v. Tate 220 F.3d 1213, 1217 n.3 (10th

Cir. 2000). The universal reading of Heck was that

cases "where the only evidence supporting the convic-

tion is tainted by a possible constitutic nal violation that

is the subject of a §1983 action—are perhaps the quin-

tessential example of when the Heck deferred accrual

rule is tnggered.” Gibson v. Superintendent of New

Jersey Dept. of Law, 411 F.3d 427, 452 (3d Cir. 2005).

The Seventh Circuit, in Gauger v. Hendle, 349

F.3d 354 (7th Cir. 2003), a decision overruled in this

case, explained this rule as follows:

It might be argued that [the civil rights plaintiff]

could have sued nght after his arrest, even-if he

might also have waited until his criminal conviction

was thrown out. But we do not think that such a

«

conclusion would be consistent with /feck. For he

could not knock out the arrest without also (by vir-

tue of Wong Sun) invalidating the use in evidence of

his admissions, without which, as we have said, he

could not be convicted. Heck, to repeat, says that a

criminal derendant can’t sue for damages for viola-

tion of his civil rights, if the ground of his suit is

inconsistent with his conviction having been consti-

tuuonal, until he gets the conviction thrown out.

Gauger v. Hendle, 349 F.3d at 362.

Decisions in other circuits are in accord.®

8. First Circuit: Nieves v. McSweeney, 241 F.3d 46, 53

(Ist Cir. 2001) (Fourth Amendment claim inyolving a

"continuing seizure" during the criminal prosecution

does not accrue unt] acquittal).

Second Circuit: Covington v. City of New York, 171

F.3d 117, 123 (2d Cir. 1999) ("in a case where the only

evidence for conviction was obtained pursuant to an

arrest, recovery in a civil case based on false arrest

would necessarily impugn any conviction resulting from

the use of that evidence").

Fourth Circuit: Ballenger v. Owens, 352 F.3d 842,

846-47 (4th Cir. 2003) ("If Ballenger succeeds in

demonstrating in this §1983 case that his traffic stop

was illegal, the illegality of the search would require the

suppression of the evidence seized... Because a

judgment for Ballenger in this case would necessarily

imply invalidity of his conviction, the case at this stage

amounts to no more than an unexhausted habeas corpus

claim that collaterally attacks his conviction.").

Fifth Circuit: Hudson v. Hughes, 98 F.3d 868, 872 (Sth

Cir. 1996) (challenge to arrest barred by Heck because

| re - e e - - Se ee

if the “arresting officers lacked probable cause to arrest

Hudson for burglary and the arrest 1s invald, the

firearm discovered in Hudson's possession as a result of

the arrest would be subject to suppression under the

Fourth Amendment as the "fruit" of an illegal arrest.”).

Sixth Circuit: Shamaeizadeh v. Cunigan, 182 F.3d 391,

398-99 (6th Cir. 1999) ("Since it appears that the only

evidence that was to be introduced = against

Shamaeizadeh was evidence discovered in

Shamacizadeh’s house dunmng the allegedly illegal

search, it would not have been possible, while the

cnminal proceedings against Shamaeizadeh were

pending, to determine whether a_ decision on

Shamaeizadeh’s claim would imply the invalidity of his

potential conviction without deciding issues common to

the criminal acuon-—-t.e.. whether the search was

lawful.”).

Eighth Circuit: Anderson vy. Franklin County, 192 F.3d

1125, 1131 (8th Cir. 1999) (because conviction had not

been invalidated, ‘claims of false arrest’ and

imprisonment should be dismi§sed without prejudice”).

Ninth Circuit: Harvey v. Waldron, 210 F.3d 1008, 1015

(9th Cir. 1998) ¢°a $1983 action alleging illegal search

and seizure of etidence upon which criminal charges

are based does not accrue until the criminal charges

have been dismissed or the conviction has been

overturned").

Eleventh Circuit: Uboh v. Reno, 141 F.3d 1000, 1006

(lith Cir. 1998) ("[W]here a section 1983 plaintiff is

seized following the institution of a prosecution . . . he

can properly wait until the prosecution terminates in his

favor to bring his section 1983 claim which alleges that

the seizure was unreasonable.") (quoting Whiting v.

Before the decision of the Seventh Circuit in this

case, there was dlso universal agreement that Heck

required a distict judge to make a fact specific inquiry

and “look both to the claims raised under §1983 and to

the specinc offenses for which the $1983 claimant was

convicted.” Hughes v. Lott, 350 F.3d 1157, 1161 n.2

(11th Cir. 2003). The Seventh Circuit refused to make

any fact specific inquiry in this case (Pet.App. 13),

relying on its view that the only “injury” that can result

from a false arrest occurs when the arrest is made.

(Pet.App. 12.) This view is based on an overly narrow

view of the protections of the Fourth Amendment and

disregards accepted and ordinary principles of causa-

lion.

B. Incarceration on the Basis of a Confession Obtained by

Exploiting a False Arrest Is a ‘Continuing Seizure” in Vio-

lation of the Fourth Amendment

The Seventh Circuit's holding that the only “injury”

which can result from a false arrest occurs at the

instant the arrest is made (Pet.App. 12) is based on the

view of that court that "the fourth amendment drops

out of the picture following a person's initial appear-

ance in court." Hernandez v. Sheahan, 455 F.3d 772,

___ (7th Cir., No. 04-2246, July 26, 2006) (slip op. 8.)

The Seventh Circuit has consistently held that the

Fourth Amendment seizure associated with an arrest

ends long before the tainted fruits of the arrest are used

to hold the arrestee in custody. Reed v. City of

Traylor, 85 F.3d 581, 585-86 (11th cir. 1996)).

=

Chicago, 77 F.3d 1049, 1052 n.3 (7th Cir. 1996);

McCullah vy. Gadert, 344 F.3d 655, 661 (7th Cir.

2003). The Seventh Circuit's view of the scope of the

Fourth Amendment is at odds with the decision of this

Court in Albright vy. Oliver, 510 U.S. 266 (1994).

Before the decision of this Court in Albright, the

Seventh Circuit viewed all §1983 claims concerning

' post-arrest events as sounding in “substantive due pro-

cess." The Court of Appeals announced this rule in

Wilkins v. May, 872 F.2d 190 (7th Cir. 1989), holding

that “once an arrested person is charged but before he

is convicted, the question whether the fact, manner, or

duration of his continued confinement is unconstitu-

uional passes over from the Fourth Amendment tc the

due process clause." /d. at 193. In choosing to adopt

this "substantive due process" standard, the Seventh

Circuit rejected "the concept of a continuing seizure”

under the Fourth Amendment. /d. at 193.

This Court overruled the Seventh Circuit's "“sub-

stanuve due process" approach in Albright v. Oliver,

510 U.S. 266 (1994). Although Albright was decided

without a majority opinion, all members of the Court

agreed that Albright’s claim of post-arrest restraints

should be viewed as a Fourth Amendment violation.

In an-opinion joined by three other members of the

Court, Chief Justice Rehnquist noted that "[t}he Fra-

mers considered the matter of pretrial deprivations of

liberty and drafted the Fourth Amendment to address

it," id. at 274, but did not express any view of whether

the petitioner's claim was viable under the Fourth

Amendment. /d. at 275.

Justice Ginsburg, who joined in the plurality opin-

ion, wrote separately to express her view that an

arrestee continued to be “seized” under the Fourth

Amendment during the pendency of a = criminal

prosecution, even=when released on bail. 510 U.S. at

280. On this view, "[t]he time to file the §1983 action

|challenging the arrest] should begin to run... upon

dismissal of the criminal charges." /d.

Justice Kennedy, joined by Justice Thomas, con-

curred in the judgment. and agreed that the petitioner's

“allegation of arrest without probable cause must be

analyzed under the Fourth Amendment.” 510 U.S. at

281.

Justice Souter, who also concurred in the judgment,

wrote separately and noted that the injures claimed by

the petitioner had been held to be "cognizable in $1983

claims founded upon arrests that are bad under the

Fourth _Amendment."? 510 U.S. at 290. Justice

Stevens, joined by Justice Blackmun, dissented from

the Court's rejection of the substanuve due process

_

9. The petitioner in Albright claimed damages tor

"limitations on his liberty, freedom of association, and

freedom of movement by virtue of the terms of his

bond; financial expense of his legal defense;

reputational harm among members of the community:

inability to transact business or obtain employment in

his local area, necessitating relocation to St. Louis;

inability to secure credit; and personal pain and

suffering.” 510 U.S. at 289 (Souter, J., concurring).

- 20-

argument, and noted agreement with Justice Ginsburg’s

"explanation of why the initial seizure of petitioner

conunued until his discharge and why the seizure was

constitutionally unreasonable." /d. at 307.

In its post-Albright decisions, the Seventh Circuit

has continued to reject the “continuing seizure"

rauonale, adhering to its pre-Albright view that a per-

son stops being "seized" when he (or she) has received

a Gerstein hearing or been arraigned.'” See, e.¢., Gar-

cia v. City of Chicago, 24 F.3d 966, 971 n.6 (7th Cir.

1994) ("the seizure of a person ends after the Gerstein

hearing); Lee v. City of Chicago, 330 F.3d 456, 463

(7th Cir. 2003) (Fourth Amendment inapplicable “when

a suspect was already lawfully in custody"); Gauger yv.

Hendle, 349 F.3d 354, 362-63 (7th Cir. 2003) (dam-

ages for arrest without probable cause end at filing of

formal charges); Wiley v. City of Chicago, 361 F.3d

994, 998 (7th Cir. 2004) (damages for arrest without

probable cause end at arraignment).

Judge Posner, the author of the Seventh Circuit's

pre-Albright rejection of the continuing — seizure

10. The Seventh Circuit explicated its view of Albright in

Newsome v. McCabe, 256 F.3d 747, 751 (7th Cir.

2001), opinion on denial of rehearing, 260 F.3d 824

(7th Cir. 2001), concluding that the "effective holding"

of Albright is “that satisfying the elements of the state-

law tort of malicious prosecution ... knocks out any

constitutional] tort of malicious prosecution." (emphasis

in original)

rationale, Wilkins v. May, 872 F.2d 190 (7th Cir.

1989), suggested in Gauger v. Hendle, 349 F.3d 354

(7th Cir. 2003) that the court of appeals should revisit

its reyecuion of the continuing seizure approach, noting

that the rules applied by the Seventh Circuit would

cause the “shocking” result that "a police frame-up

which lands a person on death row ts not a constitu-

ional tort, though every false arrest made without

probable cause is." /d. at 360. The Seventh Circuit

rejected this suggestion in its decision in this case.

(Pet.App. 16-17.)

The Seventh Circuit stands alone in its view that

“the fourth amendment drops out of the picture follow-

ing a person's initial appearance in court." The Courts

of Appeals for the Second, Third, Fourth, Sixth, Ninth,

and Eleventh Circuits have applied the Fourth Amend-

ment to events that occurred after the initial court

appearance.!!

The petitioner in this case was incarcerated for

more than cigat years because respondents exploited

his unlawful arrest to obtain a confession. Petitioner

11. Lauro vy. Charles, 219 F.3d 202, 212 (2d Cir. 2000);

DiBella y. Borough of Beachwood, 407 F.3d 599, 603

(3d Cir. 2005); Riley v. Dorton, 115 F.3d 1159, 1161

(4th Cir. 1997); Lambert v. Williams, 223 F.3d 257, 261

(4th Cir. 2000) Gregory v. City of Louisville, 444 F.3d

725, 749 (6th Cir. 2006); Fontana v. Haskin, 262 F.3d

871, 879 (9th Cir. 2001); Whiting v. Traylor, 85 F.3d

581, 584 (11th Cir. 1996).

* 7 *

was “seized” while incarcerated; nothing that occurred

at his initial appearance before a judge, at his arraign-

ment, or at his tnal relieved him of the restraints of

incarceration. Petitioner remained "seized" from his

arrest on January 19, 1994 until he was released from

custody on April 10, 2002, after the criminal case had

been dismissed.

After the criminal charges against petitioner were

dismissed, the entirety of his cight vears of incarcera-

tion is Properly viewed as an unreasonable ' Continuing

seizure” that contravened the Fourth Amendment.'

When petitioner's Fourth Amendment claim is viewed

in this manner, "[t]he time to file the §1983 action

should begin to run not at the start but at the end of

the episode in suit, i.c., upon dismissal of the criminal

charges.” Albright v. Oliver, 510 U.S. 266, 280 (1994)

(Ginsburg, J. concurring). The same result would be

obtained if accrual of petitioner's Fourth Amendment

claim of unconstitutional imprisonment is judged by

the standards applicable to a common law action for

12. See, e.g., Gallo v. City of Philadelphia, 161 F.3d 217

222-25 (3d Cir. 1998) (conditions of pre-trial release of

criminal defendant were a seizure); Gregory v. City of

Louisville, 444 F.3d 725, 749 (6th Cir. 2006)

("continued detention without probable cause is an

actionable Fourth Amendment injury under §1983");

Whiting v. Travior, 85 F.3d 581, 584 n4 (11th Cir.

1996) (Fourth Amendment includes “right to be free

from an unlawful seizure which is part of a

prosecution.").

—_

false arrest and false imprisonment.

3. Lessons from the Common Law

The Court, in construing $1983, has often con-

sidered “the common law of torts (both modern and as

of 1871), with such modification or adaptation as

might be necessary to carry out the purpose and policy

of the statute." Smith v. Wade, 461 U.S. 30, 33

(1983). While common law rules may provide an

“appropriate starting point,” they are not necessarily the

“complete solution.” Carey v. Piphus, 435 U.S. 247,

258 (1978). The common law tort actions for false

arrest or false impmsonment serve as an “inspired

example," Har:man v. Moore, 126 S.Ct. 1695, 1702

(2006), for petitioner's position that a person who is

held in custody pending the final adjudication of crimi-

nal charges remains “seized” under the Fourth Amend-

ment. The common law rules about the type of dam-

ages that could be proximately caused by a malicious

prosecution provide an alternative to recognizing a

Fourth Amendment violation that continued throughout

the cight years that petitioners was incarcerated.

A. False Arrest and False Imprisonment

"False arrest" is "a popular and convenient expres-

sion to indicate that an arrest was not lawful and,

therefore, whatever harm has been done to the plaintiff

not privileged." F. Harper, Malicious Prosecution,

False Imprisonment and Defamation, 15 Tex. L. Rev.

157, 162 (1937). “[A] person who is falsely arrested is

at the same time falsely imprisoned." Whirl v. Kern,

407 F.2d 781, 790 (Sth Cir. 1969).

"To constitute the injury of false imprisonment

there are two points requisite: 1. The detention of the

-— =

. oi

person; and, 2. The unlawfulness of such detention. a

3 W. Blackstone, Commentaries on the Laws of Eng-

land 127 (1769). The civil remedy for this tort is “an

action of trespass, vi ef armis, usually called an action

of false impnsonment.” /d. at 138.

The “almost universal rule” is that a claim for false

imprisonment accrues on the termination of the impnis-

onment.'* Collins v. Los Angeles County, 241

Cal.App.2d 451, 455, 50 Cal.Rptr. 586, 588 (1966).

There, in deciding a question of first impression under

California law, the state appellate court canvassed deci-

sions from other jurisdictions and agreed with MC.

Dransfield, Annotation, "When statute of limitations

begins to run against action for false imprisonment or

false arrest,” 49 A.L.R. 2d 922 (1956), that a cause of

13. See, e.g., Caperton vy. Bowyer, 81 U.S. 216, 231 (1871)

(Plaintiff “alleged that the defendant, on the twenty-

ninth of June, 1862, with force and arms, seized the

plainuff and incarcerated him in a dungeon, and

imprisoned him there for twenty-four days, separated

from his home and family, and that he subjected him to

great danger and many hardships, and = scrnously

impaired his health and put him to great pain and

distress, both of body and mind.”).

14. Cases from jurisdictions which do not follow this rule

include City of Mound Bayou v. Johnson, 562 So.2d

1212, 1216-1217 (Miss. 1990) (false arrest claim

accrues on date of arrest); Bauer v. Borough of Cliffside

Park, 225 N.J.Super. 38, 47, 541 A.2d 719, 723 (1988)

(same).

action for false imprisonment accrues on “the termina-

tion of imprisonment.” 241 Cal.App.2d at 456, 50

Cal.Rptr. at 589. This rule was applied before the

enactment of $1983 and can be fairly said to be

“almost universal.” 241 Ca.App.2d at 455, 50 Cal.Rpt.

at 588.'°

1S. In Huggins v. Toller, 64 Ky (1 Bush) 192, 1867 WL

3888 (1867), the Court of Appeals of Kentucky held

that a one-year statute of limitations had not run because

"if, as charged, the appellee at first caused the arrest and

imprisonment, he was liable for each day such

imprisonment was continued, and the statute did not bar

the action as :o the injury sustained within one year next

before the action was commenced.” 1867 WL 3888 *3;

See also Kirwan y. State, 31 Conn.Supp. 46, 320 A.2d

837 (1974); Stanford v. City of Manchester, 246

Ga.App.129, 539 S.E.2d 845 (2000); Matovina v. Hult,

125 Ind. App. 236, 245-46, 123 N.E.2d 893, 898 (1955):

Heron v. Strader, 361 Md. 258, 761 A.2d 56, 62 (2000)

(collecting cases); Jedzierowski v. Jordan, 157 Me 352,

172 A.2d 626 (1961); Nawrocki v. Eberhard Foods,

Inc., 24 Mich.App. 646, 649, 180 N.W.2d 849, 851

(1970); Stafferd v. Muster, 582 S.W.2d 670, 680 (Mo.

1979); Mobley v. Broome, 248 N.C. 54, 56, 102 S.E.2d

407, 409 (1958), overruled on unrelated grounds by

Fowler v. Valencourt, 334 N.C. 345, 435 S.E.2d 530

(1993); O'Fallon vy. Pollard, 427 N.W.2d 809, 811

(N.D. 1988); Jackson v. Police Dept. of City of New

York, 500 N.Y.S.2d 553 (N.Y.A.D. 1986); Belflower v.

Blackshere, 281 P.2d 423 (Okla. 1955); Adler v. Beverly

Hills Hosp., 594 S.W.2d 153 (Tex.Civ.App. 1980); Nave

v. City of Seattle, 68 Wash.2d 721, 723, 415 P.2d 93,

94-95 (1966); Oosterwyk v. Bucholtz, 250 Wis. 521,

524, 27 N.W.2d 361, 362 (1947).

In Heck v. Humphrey, 512 U.S. 477 (1994), the

Court cited a treatise for the proposition that damages

for a false arrest claim “cover the time of detention up

until] issuance of process or arraignment, but not more.”

Id. at 484, quoting W. Keeton, D. Dobbs, R. Keeton,

& D. Owen, Prosser and Keeton on Law of Torts 888

(Sth ed. 1984). The treatise does not cite any authority

to support this proposition, which, while stated in Allen

v. Shed, 10 Cush (64 Mass.) 375 (1852), appears to

reflect a minority view, rather than the “almost univer-

sal rule" discussed above, which would allow recovery

of damages for post-arraignment imprisonment. See

also Simanton v. Caldbeck, 96 Vt. 523, 525, 121 A.

411, 412 (1923) (allowing damages for defense of

underlying prosecution in false imprisonment action);

Bonesteel v. Bonesteel, 30 Wis. 511, 1872 WL 3125 *3

(1872) (allowing damages in false imprisonment action

for “counsel fee and expenses in procuring his

discharge from arrest").

The common law tort of false imprisonment

presents a fair analogy to a §1983 action against a pol-

ice officer who makes a warrantless arrest without

probable cause. The gist of each cause of action is

unlawful detention; the §1983 action has the additional

element that the wrongdoer act under color of law.

Gomez v. Toledo, 446 U.S. 635, 640 (1980). In each

cause of action, the “background of tort liability that

makes a man responsible for the natural consequences

of his actions," Monroe v. Pape, 365 U.S. 167, 187

(1961), would allow the wrongfully arrested person

who was imprisoned for cight years because police

officers exploited the unlawful arrest to obtain a con- |

fession to file suit upon obtaining his (or her) liberty

and recover damages for the enure period of incarcera-

tion. The same result is obtained if petitioner's cause

of action is compared to the common law tort of mali-

cious prosecution.

B. Malicious Prosecution

Section 1983 cases sceking damages attributable to

an unconstitutional conviction or sentence are often

analogized to the common law action of "malicious

prosecution.” Heck v. Humphrey, 512 U.S. 477, 484

(1994). This approach is followed by cight circuits.'®

The focus of the common law tort is on “the

improper instigation of a criminal proceeding.” 1 F.

Harper, F. James, & O. Gray, The Law of Torts §4.3 at

6 (2d ed 1986) While this focus may not be helpful in

analyzing a §1983 action for damages attributable to an

unconstitutional conviction, Albright v. Oliver, 510

U.S. 266, 279 n.5 (1994) (Ginsburg, J. concurring),

other aspects of the common law tort would allow a

16. See, e.g., Washington v. County of Rockland, 373 F.3d

310, 316 (2d Cir. 2004); Estate of Smith v. Marasco,

318 F.3d 497, 521 (3d Cir. 2003), opinion following

remand, 430 F.3d 140 (3d Cir. 2005): Lambert v.

Williams, 223 F.3d 257, 261 (4th Cir. 2000); Thacker v.

City of Columbus, 328 F.3d 244, 258 (6th Cir. 2003);

Moran vy. Clarke, 296 F.3d 638, 646 (8th Cir. 2002);

Awabdy vy. City of Adelanto, 368 F.3d 1062, 1069 (9th

Cir. 2004); Grubbs v. Bailes, 445 F.3d 1275, 1278 (10th

Cir. 2006); Wood v. Kesler, 323 F.3d 872, 881 (11th

Cir. 2003).

P

meaningful §1983 remedy even if the Court did not

agree that petitioner was seized within the meaning of

the Fourth Amendment for the eight vears that he was

incarcerated. Cf. Pierce yv. Gilchrist, 359 F.3d 1279,

1285-86 (10th Cir. 2004) (“at some point after arrest,

and certainly by the time of trial, constitutional

analysis shifts [from the Fourth Amendment] to the

Due Process Clause”).

The damages that may be obtained in a common

law malicious prosecution action are those which were

proximately caused by the prosecution. Such damages

may include "compensation for loss of time, loss of

income, loss of credit, emotional distress, and harm to

reputation gencrally, as well as expenditures made in

defending the malicious prosecution." 1 F. Harper, F.

James, & O. Gray, The Law of Torts §4.7 at 57-58 (2d

ed 1986) (citations omitted). These are the type of

losses which petitioner incurred during the eight years

he was held in custody. The proximate cause of

petitioner's imprisonment was respondents’ actions to

exploit petitioner's unlawful arrest to secure a false

confession. It is settled law that such actions con-

travene the Fourth Amendment. New York v. Harris,

495 U.S. 14, 19 (1990).

Section 1983 "creates a species of tort liability,”

Imbler v. Pachtman, 424 U.S. 409, 417 (1976), and,

"[lJike other tort causes of action, it is designed to pro-

vide compensation for injuries arising from the viola-

tion of legal duties." City of Monterey v. Del Monte

Dunes at Monterey, Ltd, 526 U.S. 687, 727 (1999)

(Scalia, J., concurring). Thus, the police officers who

exploited petitioner's unlawful arrest should be respon-

sible for the "natural consequences of |their] actions."

99.

Monroe v. Pape, 365 U.S. 167, 187 (1961).

Another aspect of the common law tort of mali-

cious prosecution is relevant to pettoner’s claim: A

cause of action for common law malicious prosecution

does not accrue until there has been a favorable termi-

nation of the criminal proceeding: this, of course, is the

accrual rule that the Court adopted in Heck v. Hum-

phrey, 512 U.S. 477, 484 (1994).

The common law action of malicious prosecution

supports petitioner's position that his damage claim did

not accrue until the criminal charges had been resolved

in his favor. Also supporting petitioner is the accrual

rule applied when an antitrust injury results in future

damages whose "accrual ts speculative or their amount

and nature unprovable.” Zenith Radio Corp. v. Hazel-

tine Research, Inc., 401 U.S. 321, 339 (1971).

4. The Hazeltine Rule

The accrual question presented in this case is simi-

lar to that answered by the Court in Zenith Radio

Corp. v. Hazeltine Research, Inc., 401 U.S. 321

(1971). There, starting from the general rule that “a

cause of action accrues and the statute begins to run

when a defendant commits an act that injures a

plaintiff's business," the Court held that when the anti-

trust injury arses from a continuing conspiracy, a

cause of action accrues “each time a plaintiff is injured

by an act of the defendants." /d. at 338.

After noting that the cause of action accruing from

a continuing conspiracy permits the plainuff to

"recover all damages incurred by that date and all

provable damages that will flow in the future from the

acts of the conspirators on that date," 401 U.S. at 339,

- 30 -

the Court turned to-the situation where an antitrust

injury results in future damages whose “accrual ts

speculative or their amount and nature unprovable.”

The Court held that this cause of action "will accrue

only on the date they are suffered.” /d.

The policies which support the Hazeltine rule are

similar to those underlying §1983. Private antitrust

actions serve "as a bulwark of antitrust enforcement.”

Perma Life Muffiers, Inc. v. International Parts Corp..

392 U.S. 134, 139 (1968). Section 1983 actions are "an

effective deterrent" to police wrongdoing. Hudson vy.

Michigan, 126 S.Ct. 2159, 2167-68 (2006). The anti-

trust laws are intended to "protect the victims of the

forbidden practices." Radovich vy. National Football

League, 352 U.S. 445, 454 (1957). Section 1983 is

intended "to protect the people from unconstitutional

acuon under color of state law." Mitchum y. Foster,

407 U.S. 225, 238-39 (1972). The Court relied on

these policies when it formulated the Hazeltine rule,

lest “future damages that could not be proved within

four years of the conduct from which they flowed

would be forever incapable of recovery.” Hazeltine,

401 U.S. at 340.

As applied to this case, Hazeltine compels the

result that petitioner's claim is not barred by the statute

of limitations. Petitioner did not have any damage

claim for “the ‘injury’ of being convicted and

imprisoned (until his conviction [was] overturned)."

Heck v. Humphrey, 512 U.S. 477, 487 n.7 (1994).

This injury was incurred on the day that the criminal

charges were dismissed. Petitioner filed this action

within the two year statute of limitations that applies to

§1983 claims in Illinois, see ante at 12 n.7, and

respondents’ statute of limitations defense should have

been overruled.

5. The Rule of Accrual Applied in Attorney

Malpractice Cases

The accrual quesuon presented in this case is also

similar to that presented in attorney malpractice suits

against crimina: defense attorneys

The general rule is that a claim of legal malpractice

in a criminal case does not accrue “until relief from a

conviction is achieved." Trobaugh vy. Sondag, 668

N.W.2d 577, 583-84 (lowa 2003). This rule is often

referred to as the "exoneration rule,” Canaan v. Bartee,

276 Kan. 116, 120-31, 72 P.3d 911, 915-21 (2003),

and is followed in the majority of jurisdictions which

have considered the question.'’ Robinson _ v.

17. Cases adopting this rule of accrual include: Alaska:

Shaw v. State, Department of Admin., 816 P.2d 1358,

1360 (Alaska 1991); Arizona: Glaze v. Larsen, 207

Ariz. 26, 32, 83 P.3d 26, 32 (2004); California: Wiley v.

County of San Diego, 19 Cal.4th 532, 79 Cal.Rptr.2d

672 (1998): Florida: Cira v. Dillinger, 903 So.2d 367,

370 (Fla.App. 2005); Illinois: Paulsen v. Cochran, 356

Il.App.3d 354, 358-59, 826 N.E.2d 526, 530 (2005):

Kentucky: Stephens v. Denison, 150 S.W.3d 80

(Ky.App. 2004); Maryland: Berringer v. Steele, 133

Md.App. 442, 484, 758 A.2d 574, 597 (2000);

Massachusetts: Glenn v. Aiken, 409 Mass. 699, 707-08,

569 N.E.2d 783, 788 (1991); Minnesota: Noske y.

Friedberg, 656 N.W.2d 409, 413 (Minn.App. 2003);

Nevada: Morgano v. Smith, 110 Nev. 1025, 1028-29,

879 P.2d 735, 737 €1994),; New Hampshire: Thierrien v.

Sullivan, 891 A.2d 560, 562 (N.H. 2006) (must show

a

tv

Southerland, 123 P.3d 35, 43 (Okla Civ.App. 2005).

"[A] mule that encouraged the early filing of

malpractice suits against counsel unsuccessful at trial

would likely have a severe and negative impact on the

functioning of the criminal justice system.” Glaze vy.

Larsen, 207 Ariz. 26, 32, 83 P.3d 26, 32 (2004). The

same is true for the Seventh Circuit's rule of accrual.

6. Dangers of the Seventh Circuit's Rule

The Seventh Circuit's accrual rule violates the prin-

ciple that a civil action should not be permitted to col-

laterally attack a criminal conviction. This Court recog-

nized in Heck "the hoary principle that civil tort actions

are not appropriate vehicles for challenging the validity

of outstanding criminal judgments.” 512 U.S. at 486.

By limiting opportunitics for collateral attack, the

Court has sought to "prevent[] inconsistent decisions,

[thus] encourag[ing] reliance on adjudication." Oregon

v. Guzek, 126 S.Ct. 1226, 1233 (2006) (quoting Allen

actual innocence); New York: Britt v. Legal Aid S«c.,

Inc., 95 N.Y.2d 443, 447, 718 N.Y.S. 2d 264, 267

(2000); Oregon: Stevens v. Bispham, 316 Or. 221, 238,

851 P.2d 556, 566 (1993); Tennessee: Gibson v. Trant,

58 S.W.3d 103, 110 (Tenn. 2001); Texas: Peeler vy.

Hughes & Luce, 909 S.W.2d 494, 497-98 (Tex. 1995);

Virginia: Adkins vy. Dixon, 253 Va. 275, 282, 482

S.E.2d 797, 801 (1997); Washington: Owens vy.

Harrison, 120 Wash.App. 909, 913, 86 P.3d 1266, 1268

(2004); Wisconsin: Hicks v. Nunnery, 253 Wis.2d 721,

754, 643 N.W.2d 809, 823 (Wis.App. 2002).

ve McCurry, 449 U.S. 90, 94 (1980)).

The rule adopted by the Seventh Circuit, if allowed

to stand, will result in the needless filing of innumer-

able false arrest claims, filings necessary to preserve

the claims in the event that a conviction is eventually

overturned. As Judge Guy noted in his dissenting

opinion in McCune v. City of Grand Rapids, 842 F.2d

903, 909 (6th Cir. 1988), if these claims are stayed

pending the outcome of criminal proceedings, they will

clutter the district court’s docket with inactive cases.

If these claims are allowed to proceed before the cnmi-

nal case has reached a final adjudication, there is the

potential for inconsistent civil and criminal results, the

very evil that the Court identified and attempted to

avoid in Heck. 512 U.S. at 486.

CONCLUSION

"[T]hose who have been damaged by official action

infringing on nghts guaranteed them by the Constitu-

tion should have an avenue for redress of that dam-

age." California v. Minjares, 443 U.S. 916, 927

(1979) (Rehnquist, J, dissenting from denial of stay).

The rule of accrual adopted by the Seventh Circuit

denies a remedy for an unconstitutional conviction and

imprisonment to a person who, like petitioner, was

incarcerated for eight years because police officers

exploited an unlawful arrest to secure a false confes-

sion.

The Court ould reverse the Seventh Tircuit and

hold that when a plaintiff in a §1983 action claims that

police officers exploited an unlawful arrest to obtain

evidence which is the basis for a criminal prosecution,

the cause of action arising from the unlawful arrest

» 4.

does not accrue until the criminal charges have been

resolved in favor of the arrestee.

Respectfully submitted.

KENNETH N. FLAXMAN

(Counsel of Record)

200 South Michigan Avenue

Suite 1240

Chicago, Illinois 60604

(312) 427-3200

(312) 427-3930 (fax)

JOHN J. BURSCH

Warner Norcross & Judd LLP

111 Lyon St NW

Grand Rapids, Michigan 49503

(616) 752-2474

(616) 222-2474 (fax)

Attorneys for Petitioner

August, 2006