# Petitioners Brief — Wallace v. Kato

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0248%3A06

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petitioners Brief
- **Published:** January 1, 2007
- **Citation:** 549 U.S. 384

## Text

— —_
- ‘

oe

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0248%3A06. Public record. Not legal advice.