Amicus Curiae Brief — Wallace v. Kato

No. 0571240 FILED

“oct 102006 |

IN THE

FFICE QF THE CLERK

Supreme Court of the pallet eras U.S.

~————— =

ANDRE WALLACE,

Petitioner,

Vv.

CHICAGO POLICE OFFICERS KRISTEN KATO

AND EUGENE Roy,

Respondents.

On Writ of Certiorari to the

United States Court of Appeais

for the Seventh Circuit

BRIEF OF THE NATIONAL LEAGUE OF CITIES,

NATIONAL ASSOCIATION OF COUNTIES, U.S.

CONFERENCE OF MAYORS, INTERNATIONAL

CITY/COUNTY MANAGEMENT ASSOCIATION, AND

INTERNATIONAL MUNICIPAL LAWYERS

ASSOCIATION AS AMICI CURIAE

SUPPORTING RESPONDENTS

D. BRUCE LA PIERRE RICHARD RUDA*

WASHINGTON UNIVERSITY Chief Counsel _

SCHOOL OF LAW "STATE AND LOCAL LEGAL

APPELLATE CLINIC CENTER

One Brookings Drive 444 North Capitol Street, N.W.

St. Louts, MO 63130 Suite 309

(314) 935-6477 Washington, D.C. 20001

(202) 434-4850

* Counsel of Record for the

Amici Curiae

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 - WaSHINGTON,D C 20001

QUESTION PRESENTED

When does a claim for damages arising out of a false arrest

or other search or seizure forbidden by the Fourth Amend-

ment accrue when the fruits of the search were introduced in

the claimant’s criminal trial and he was convicted?

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TABLE OF CONTENTS

Page

ee ST BR iincniccencctcsncrencvaccaesivnnseninennns i

ee ee ee cseamnmminntionsondil Vv

INTEREST OF THE AMICT CURIAE ..00....cccccccceeeeeeee l

SUMMARY OF ARGUMENT .......................00..-sseeee00e 2

fA SE ESTE Se een Oe CIN SC me ED 5

I. A SECTION 1983 CLAIM FOR DAMAGES

FOR FALSE ARREST ACCRUES AT THE

, 6 FEARS AST PRE eran es rene 5

A. Federal Law Provides that an Action for

False Arrest Accrues at the Time of Arrest... 7

B. Heck Does Not Require Any Departure

from the Clear and Settled Rule that an

Action for False Arrest Accrues at the

tl 8

1. A Successful False Arrest Action Does

Not Necessarily Imply the Invalidity of

ETE REN A a ree me 7)

N

Federalism Issues Raised by a Section

1983 Damages Action for False Arrest

are Addressed as a Matter of Comity

and Not by Departures from Settled

Se I iakniscesecietcsantecnsisniistiiaibies 13

Il. A BRIGHT-LINE RULE THAT A CLAIM

FOR DAMAGES FOR FALSE ARREST

ACCRUES AT. THE TIME OF ARREST

ENSURES PREDICTABILITY AND AVOIDS

TIME-CONSUMING LITIGATION ..............000. 17

(iii)

iV

TABLE OF CONTENTS—Continued

Page

A. A Clear Rule of Accrual Relieves Federal

Courts From Making Case-by-Case

Predictions About the Relationship of

Arrests to Convictions .20000.000..00occcccccccceee 18

B. Delayed Accrual of False Arrest Actions

Conflicts with the Fundamental Purposes

of Statutes of Limitations |... 0000000000000... 21

C. Accrual of False Arrest Actions at the

Time of Arrest Avoids Uncertainty and

Time-Consuming Litigation That is For-

eign to the Central Purposes of Section

i _ PRO ESS, * avmanaaldil 26

INO D ninncocnninstninticniisaideniieianiienionea aaa 28

Vv

TABLE OF AUTHORITIES

Cases Page

Atwater v. City of Lago Vista, 532 U.S. 318

| eee 26

Board of Regents of Univ. of State of N.Y. v.

Tomanio, 446 U.S. 478 (1980) ..........cccccceseeeeees 22

Brown v. Illinois, 422 U.S. 590 (1975)......cccccec00+ 20

Cabrera vy. City of Huntington Park, 159 F.3d

PO Ge, BEI ccecescssecescnscsnsecnsssvcnssnsesccssseess 18

Chardon v. Fernandez, 454 U.S. 6 (1981) ............ 7

Degen v. United States, 517 U.S. 820 (1996)........ 17

Delaware State Coll. v. Ricks, 449 U.S. 250

TET iniachalaesiciaiasepiteerpcceninntnnindesigniinatinennnensnessinmeennean 7

Edwards v. Balisok, 520 U.S. 641 (1997) ............. 7,14

Gerstein v. Pugh, 420 U.S. 103 (1975) .....-...c.0000 10

Gibson v. Superintendent of N.J. Dep't of Law &

Pub. Safety Div. of State Police, 41\ F.3d 427

ee 13, 18

Grupo Dataflux v. Atlas Global Group, L.P., 541

Be Se ED icrcincntpeensransenenintnmnenermmsnnnaenen 26

Hardin v. Straub, 490 U.S. 536. (1989) ..............0.. 7

Haring v. Prosise, 462 U.S. 306 (1983) ..........006 10

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

Jerome B. Grubart, Inc. v. Great Lakes Dredge

& Dock Co., 513 U.S. $27 (1995S) ........ccceceeeeees 26

Klehr v. A.O. Smith Corp., 521 U.S. 179 (1997)... 24

Kotteakos v. United States, 328 U.S. 750 (1946).. 21

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

aa ere eeeearnctaien 7

Muhammad v. Close, 540 U.S. 749 (2004) ........... passim

Nelson v. Campbell, 541 U.S. 637 (2004)............. 3,6, 11

Owens v. Okure, 488 U.S. 235 (1989)... 27

Rinehart v. Locke, 454 F.2d 313 (7th Cir. 1971)... 8

Rose v. Bartle, 871 F.2d 331 (3d Cir. 1989).......... 7

Rotella v. Wood, 528 U.S. 549 (2000)......... aaliaciiatiaai passim

vi

TABLE OF AUTHORITIES—Continued

Page

Singleton v. City of New York, 632 F.2d 185 (2d

Cir. 1980), cert. denied, 450 U.S. 920 (1981)... 7-8

Stone v. Powell, 428 U.S. 465 (1976)......00-0.000000.. x

United States v. Kubrick, 444 U.S. 111 (1979) . 22, 22-23, 25

United States v. Lane, 474 U.S. 438 (1986) .......... 2!

Venegas v. Wagner, 704 F.2d 1144 (9th Cir.

ES Sa Ee eee ee el 7

Wilkinson v. Dotson, 544 U.S. 74 (2005) .............. x

Wilson v. Garcia, 471 U.S. 261 (1985) oo... passim

_ Statutes

N.H. Rev. Stat. § 508:4.000000000000000... Sa re 3 25

lice CAD TU Oe CBD cccccrceececoscencoessececeneceees 25

Other Authorities

Calvin W. Corman, Limitation of Actions (1991)... 22, 25

Charles Alan Wright & Arthur R. Miller, Federal

Practice and Procedure (3d ed. 2004) .............. 21

Charles Alan Wright, The Federal Courts—a

Century Afier Appomattox, 52 A.B.A. J. 742

SESE RES Ne Pe 26

Martin A. Schwartz, Section 1983 Litigation:

Claims and Defenses (3d ed. 1997) ........0c.0cc000-. 7, 25

Richard H. Fallon, Jr. et al., Hart and Wechsler's

The Federal Courts and the Federal System

ps Matsa ieiacicliceinsassterernitesianeshendiaaaadibdicitaels 21

U.S. Dept. of Justice, Federal Bureau of

Investigation, Crime in the United States 2005

tbl. 29, available at http://www.fbi.gov/ucr/

I itiradsnisininiciniiinlitilal cee 24-25

Webster's Third New International Dictionary of

the English Language, Unabridged (Phillip

Babcock Gove ed., 1976) ..........cccccccccesceseeeeeeeees 3, 6

W. Keeton et al., Prosser & Keeton on Torts (5th

Rs Se ctiiicencsineiiaitdeiititinatinbiaiilaaiatiaaartiais ditiaa nie 8

INTEREST OF THE AMICI CURIAE

Amici are organizations whose members include municipal

governments and officials throughout the United States.

Amici have a compelling interest in the development of clear

rules to govern the fundamentals of section 1983 litigation,

including the rules that govern the accrual of causes of action,

such as petitioner's damages claim for false arrest.

When this Court decided the closely related question of the

proper statute of limitations for section 1983 claims, it

emphasized “the federal interest in uniformity and the interest

in having ‘firmly defined, easily applied rules.” Wilson v.

Garcia, 471 U.S. 261, 270 (1985) (citation omitted). “A

federal cause of action ‘brought at any distance of time,” the

Court said, “would be ‘utterly repugnant to the genius of our

laws,”” not least because “{j]ust determinations of fact cannot

be made when, because of the passage of time, the memories

of witnesses have faded or evidence is lost.” /d at 271

(citation omitted). Moreover, the Court noted that those

courts “that have predicated their choice of the correct statute

of limitations on analysis of the particular facts of each

claim” had used an approach that “inevitably breeds uncer-

tainty and time-consuming litigation that is foreign to the

central purposes of § 1983.” Jd. at 272.

Certainty and clear rules are no less vital for litigants and

the courts in determining the accrual of false arrest and other

search and seizure claims. The court of appeals properly

accommodated these concerns when it ruled that false arrest

claims accrue at the time of arrest. Because of the importance

of this question to the fair and effective litigation of section

' The parties have consented to the filing of this amicus brief and their

letters of consent have been filed with the Clerk. This brief was not

authored in whole or in part by counsel for a party, and no person or entity

other than amici or their members made a monetary contribution toward

its preparation or submission.

2

1983 claims such as those of petitioner, amici respectfully

submit this brief to assist the Court in the resolution of

this case.

SUMMARY OF ARGUMENT

The Court’s decision in Heck v. Humphrey, 512 U.S. 477

(1994), does not require any departure from the traditional

federal rule that an action for false arrest accrues at the time

of arrest. Heck is best read as embracing a general rule that

false arrest damages claims do not necessarily imply the

invalidity of a conviction, that section 1983 false arrest

damages actions “should be allowed to proceed, in the

absence of some other bar to the suit,” id at 487 (footnote

omitted), and that federalism issues that may be raised by the

filing of federal civil rights cases while state proceedings are

ongoing are to be resolved as a matter of comity.

An alternative reading of Heck, directing courts to make

case-by-case, fact-specific determinations whether an arrest

implies the invalidity of a conviction, and consequently

delaying the accrual of selected false arrest actions until a

conviction is set aside, imposes a needless and costly burden

on federal courts and litigants. Delayed accrual based on the

facts of the case is “at odds with the basic policies of all

limitations provisions,” Rotella v. Wood, 528 U.S. 549, 555

(2000), and “breeds uncertainty and time-consuming litiga-

tion that is foreign to the central purposes of § 1983.” Wilson

v. Garcia, 471 U.S. 261, 272 (1985).

1. In “the normal run of cases, in which the Fourth

Amendment violation affects only the evidence that might or

might not be presented to the trier of fact,” Pet. App. 14,

Heck is best read as establishing a general rule that claims for

damages arising out of a false arrest do not “necessarily”

imply the invalidity of a conviction. There is, then, no reason

to depart from the clear, well-settled rule that an action for

false arrest accrues at the time of arrest.

3

Heck identified “a suit for damages attributable to an

allegedly unreasonable search” as an example of a section

1983 damages action that “even if successful, will not

demonstrate the invalidity of any outstanding criminal

judgment” and that “should be allowed to proceed, in the

absence of some other bar to the suit.” 512 U.S. at 487 & n. 7

(footnote omitted). The Court explained that “even if the

challenged search produced evidence that was introduced in a

State criminal trial resulting in the § 1983 plaintiff's still-

outstanding conviction,” success on the merits of an unrea-

sonable search claim “would not necessarily imply that the

plaintiff's conviction was unlawful” because of “doctrines

like independent source and inevitable discovery, and es-

pecially harmless error.” /d. at 487 n. 7 (citations omitted).

The Court’s focus on “the importance of the term

‘necessarily,’” Nelson v. Campbell, 541 U.S. 637, 647 (2004),

supports reading Heck for the general rule that damages

claims arising out of a false arrest or other prohibited seizure

do not imply the invalidity of a conviction. The absence of

probable cause is, to be sure, a starting point for arguments

that the fruits of an arrest are tainted, that the tainted fruit is

inadmissible, and that the tainted fruit would be critical to a

conviction. A finding of no probable cause, however, does

not “necessarily,” inevitably, or unavoidably imply that a

conviction is invalid. See Heck, 512 U.S. at 487 n. 7; cf

Webster’s Third New International Dictionary of the English

Language, Unabridged 1510 (Phillip Babcock Gove ed.,

1976) (“necessarily” means “inevitably, unavoidably”).

Because Heck teaches that damages for false arrest do not

“necessarily” go to the validity of conviction, there is no need

for any mechanism—delayed accrual or otherwise—to police

the intersection of a section 1983 damages action for false

arrest and habeas corpus because there is no interference.

Damages for false arrest do not go to the validity of a

conviction and do not implicate any requirement “to resort to

4

State litigation and federal habeas before § 1983.” Muham-

mad v. Close, 540 U.S 749, 751 (2004) (per curiam).

Although a section 1983 damages action for false arrest does

not interfere with federal habeas corpus, it may raise, as Heck

anticipated, other significant federalism issues. Heck

specifically stated that a section 1983 action “should be

allowed to proceed” only “in the absence of some other bar to

the suit” and carefully noted that concerns about comity, and

in particular avoidance of parallel federal and state court

proceedings, may require abstention. 512 U.S. at 487 & n. 8.

2. Case-by-case consideration of the relationship of a

false arrest claim to a possible conviction creates significant

problems that are obviated by reading Heck as embracing a

general rule that false arrest damages claims do not

necessarily imply the invalidity of a conviction. Under the

case-by-case approach, courts must make fact-specific deter-

minations of whether success on the merits of a claim that an

arrest was made without probable cause would necessarily

invalidate a conviction. If a successful false arrest claim does

not imply the invalidity of a conviction, the action accrues at

arrest, but if success on the merits of the claim does imply the

invalidity of a conviction, the action accrues when the

conviction is set aside.

Faced with such uncertainty, prudent lawyers will always

file actions for false arrest based on the presumption that the

action accrues at the time of arrest. To file a section 1983

action after a conviction is set aside would run the risk that

the court will decide that a successful false arrest claim did

not imply the invalidity of the conviction, that the action in

fact accrued at arrest, and that if the limitations period has

run, some variant of equitable tolling—an exceptional doc-

trine— will be necessary to preserve the section 1983 action.

Delayed accrual of false arrest actions conflicts with the

fundamental “policies of all limitations provisions: repose,

elimination of stale claims, and certainty about a plaintiff's

5

opportunity for recovery and a defendant’s potential lia-

bilities.” Rotella, 528 U.S. at 555. Petitioner’s case was filed

more than nine years after his arrest, and “{[j]ust

determinations of fact cannot be made when, because of the

passage of time, the memories of witnesses have faded or

evidence is lost.” Wilson, 471 U.S. at 271. Statutes of

limitations in section 1983 actions are at least as long as two

years in all but four states and Puerto Rico, and afford

plaintiffs ample time to present their claims. Petitioner’s

false arrest claim accrued at the time of arrest, and his section

1983 complaint advanced a claim that he could have asserted

within I]linois’s two-year limitations period.

Because a statute of limitations does not begin to run until

an action accrues, a rule that would delay accrual beyond the

time of arrest is inconsistent with legislative judgments

about “the proper balance between the policies of repose and

the substantive policies of enforcement.” Wilson, 471 U.S.

at 271.

ARGUMENT

I. A SECTION 1983 CLAIM FOR DAMAGES FOR

FALSE ARREST ACCRUES AT THE TIME OF

ARREST

A Fourth Amendment claim for damages arising out of

false arrest does not implicate any requirement under Heck v.

Humphrey, 512 U.S. 477 (1994), “to resort to state litigation

and federal habeas before § 1983” because it “threatens no

consequence for [a prisoner’s] conviction or the duration of

his sentence.” Muhammad v. Close, 540 U.S. 749, 751-52

(2004) (per curiam). Although a finding of no probable cause

for arrest might be “a necessary element to a likely challenge

to a conviction,” Heck, 512 U.S. at 488 (internal citation and

quotation marks omitted), it would not be a sufficient element

to support invalidation of a conviction. A determination in a

section 1983 damages action whether an arrest or other

6

seizure is prohibited by the Fourth Amendment does not

“necessarily” entail any determination whether the fruits of an

allegedly unconstitutional arrest or search may be used in a

Staie prosecution, much less whether a conviction is valid. /d.

at 487, 488.

Thus, even if an arrest or other seizure leads to a statement

or other evidence that is introduced in a section 1983

claimant’s criminal trial and the claimant is convicted, “suc-

cess on the merits” of a section 1983 challenge to the

lawfulness of an arrest “would not ‘necessurily imply that the

plaintiff's conviction was unlawful.’””? See Nelson vy.

Campbell, 541 U.S. 637, 647 (2004) (quoting Heck, 512 U.S.

at 487 n. 7); cf Webster's Third New International Dic-

tionary of the English Language, Unabridged 1510 (Phillip

Babcock Gove ed., 1976) (defining “necessarily” as “in such

a way that it cannot be otherwise: of necessity: INEVIT-

ABLY, UNAVOIDABLY’”).

The court of appeals correctly recognized that Heck does

not require either a case-by-case, individualized determi-

nation whether a particular arrest implies the invalidity of a

conviction or any departure from the clear rule that an action

for false arrest accrues at the time of arrest. Instead, Heck

teaches that a section 1983 claim for damages arising out of

* The question presented is: “When does a claim for damages arising

out of a false arrest or other search or seizure forbidden by the Fourth

Amendment accrue when the fruits of the search were introduced in the

claimant's criminal trial and he was convicted?” This question addresses

“the normal run of cases, in which the Fourth Amendment violation

affects only the evidence that might or might not be presented to the trier

of fact.” Pet. App. 14. It does not raise, and this brief does not address,

the narrow class of cases in which the asserted Fourth Amendment

violation is “an element of the offense” of which a section 1983 claimant

has been convicted. See Heck, 512 U.S. at 487 n. 6 (resisting arrest). In

such circumstances, this Court has held that the section 1983 action “will

not lie” unless and until the conviction is set aside. /d

7

an arrest prohibited by the Fourth Amendment, which is filed

within the applicable period of limitations from, the time of

arrest, “should be allowed to proceed, in the absence of some

other bar to the suit.” 512 U.S. at 487 (footnote omitted); see

also Edwards v. Balisok, 520 U.S. 641, 649 (1997) (“[Ajbsent

some other bar to the suit, a claim [that] is cognizable under §

1983 ... should immediately go forward ... .”).

A. Federal Law Provides that an Action for Faise

Arrest Accrues at the Time of Arrest

Although federal law borrows state statutes of limitations

and tolling principles, federal law governs directly the

question of accrual of actions for constitutional torts under

section 1983. See Hardin v. Straub, 490 U.S. 536, 538-44

(1989); Wilson v. Garcia, 471 U.S. 261, 266-71 (1985).

Federal courts “generally apply a discovery accrual rule,”

which “start[s] the clock when a plaintiff knew or should

have known of his injury.” Rotella v. Wood, 528 U.S. 549,

553, 555 (2000). The cause of action accrues when the

plaintiff knows of the injury, not when the full consequences

of that injury are felt. See, e.g., Delaware State Coll. v. Ricks, —

449 U.S. 250, 258 (1980); Chardon v. Fernandez, 454 U.S. 6,

8 (1981) (per curiam); see also 1C Martin A. Schwartz,

Section 1983 Litigation: Claims and Defenses § 12.4, at 10

(3d ed. 1997) (“[T]he overwhelming number of § 1983

accrual decisions speak in terms of knowing or reason to

know of injury, not that federal rights have been violated.”).

Under the federal injury discovery accrual rule, a claim for

damages arising out of false arrest accrues at the time of

arrest, and, at least before this Court’s decision in Heck, there

was no dispute on this point. See, e.g., Rose v. Bartle, 871

F.2d 331, 350-53 (3d Cir. 1989) (action for false arrest

accrues at time of arrest); accord McCune v. City of Grand

Rapids, 842 F.2d 903, 906 (6th Cir. 1988); Venegas v.

Wagner, 704 F.2d 1144, 1146 (9th Cir. 1983); Singleton v.

8

City of New York, 632 F.2d 185, 191 (2d Cir. 1980); Rinehart -

v. Locke, 454 F.2d 313, 315 (7th Cir. 1971). When a person's

Fourth Amendment rights have been allegedly violated by an

arrest without probable cause, the injury occurs at the time of

the arrest, and “damages for that claim cover the time of

detention up until issuance of process or arraignment, but not

more.” Heck, 512 U.S. at 484 (quoting W. Keeton et al.,

Prosser & Keeton on Torts 887-88 (Sth ed. 1984)).

B. Heck Does Not Require Any Departure from

the Clear and Settled Rule that an Action for

False Arrest Accrues at the Time of Arrest

Congress has provided “two main avenues to relief on

complaints related to imprisonment: a petition for habeas

corpus, 28 U.S.C. § 2254, and a complaint under the Civil

Rights Act of 1871, Rev. Stat. § 1979, as amended, 42 U.S.C.

§ 1983.” Muhammad, 540 U.S. at 750. In policing the

intersection of these avenues, the Court “has focused on the

need to ensure that state prisoners use only habeas corpus (or

similar state) remedies when they seek to invalidate the

duration of their confinement” either directly through an

injunction or indirectly through a damages action. Wilkinson

v. Dotson, 544 U.S. 74, 81 (2005).

There is, however, no need for any mechanism—delayed

accrual or otherwise—to police the intersection of a section

1983 damages action for false arrest and habeas corpus

because, put simply, there is no interference. Damages for

false arrest do not go to the validity of a conviction and do

not implicate any requirement “to resort to state litigation and

federal habeas before § 1983.°> Muhammad, 540 U.S. at

* There is a second reason why damages for false arrest do not im-

plicate any requirement to resort to habeas corpus. Federal habeas corpus

does not lie for claims based on violations of the Fourth Amendment

“where the State has provided an opportunity for full and fair litigation” of

such claims. Stone v. Powell, 428 U.S. 465, 482 (1976). Because federal

9

752. Although a section 1983 damages action for false arrest

does not interfere with federal habeas corpus and its “policy . -

. . that state courts be given the first opportunity to review

constitutional claims bearing upon state prisoners’ release

from custody,” see Heck, 512 U.S. at 488 n. 9, a section 1983

damages action for false arrest may raise, as //eck anticipated,

other important federalism issues. Heck specifically stated

that a section 1983 action “should be allowed to proceed”

only “in the absence of some other bar to the suit” and

carefully noted that concerns about comity, and in particular

avoidance of parallel federal and state court proceedings, may

require abstention. /d. at 487 & n. 8.

1. A Successful False Arrest Action Does Not

Necessarily Imply the Invalidity of a

Conviction

Because “[c]hallenges to the validity of any confinement

or... its duration are the province of habeas corpus,”

Muhammad, 540 U.S. at 750, Heck carefully distinguished a

section 1983 damages action that “would necessarily imply

the invalidity of [a] conviction or sentence” from a damages

action that “even if successful, would not necessarily imply

that the . . . conviction was unlawful.” 512 U.S. at 487 & n.

7. On the one hand, if a damages action would necessarily

imply the invalidity of a conviction, the action “must be

_ dismissed unless the [section 1983 claimant] can demonstrate

that the conviction or sentence has already been invalidated.”

habeas corpus is not available for Fourth Amendment claims, a section

1983 action for damages for false arrest in violation of the Fourth

Amendment cannot implicate any need to resort to this federal remedy.

See Muhammad, 540 U.S. at 751, 755 (prisoner’s section 1983 action

“raised no claim on which habeas relief could have been granted” so

“conditioning the right to bring a § 1983 action on a favorable result in

state litigation or federal habeas [did not] serve[] the practical objective of _

preserving limitations on the availability of habeas remedies”).

10

Id. at 487. On the other hand, a damages action that does not

necessarily imply the invalidity of a conviction “should be

allowed to proceed, in the absence of some other bar to the

suit.” Jd. (footnote omitted). °

Heck is best read as embracing a general rule that claims

for damages arising out of a false arrest or other seizure

prohibited by the Fourth Amendment do not necessarily

imply the invalidity of a conviction. See Gerstein v. Pugh,

420 U.S. 103, 119 (1975) (“[T]he established rule [is] that

illegal arrest or detention does not void a subsequent

conviction.”); see also Haring v. Prosise, 462 U.S. 306, 322

(1983) (Fourta Amendment claim [for illegal search] “is

irrelevant to the constitutionality of . . . criminal conviction”).

Heck specifically explained that Fourth Amendment damages

claims for an illegal search do not necessarily imply the

invalidity of a conviction and that-such damages actions

should be allowed to proceed in the absence of some other

bar to the suit. Heck also addressed, and rejected, an

argument that a section 1983 damages action should not be

allowed to proceed if judgment in the section 1983 action

would resolve a “necessary element,” like probable cause, of

“a likely challenge to a conviction.” 512 U.S. at 488 (internal

citation and quotation marks omitted).

Support for the foregoing reading of Heck is found first in

Heck's discussion of “a suit for damages attributable to an

allegedly unreasonable search.” /d. at 487 n. 7. The Court

identified such a suit as an example of a section 1983

damages action that “even if successful, will not demonstrate

the invalidity of any outstanding criminal judgment,” and that _

“should be allowed to proceed, in the absence of some other

bar to the suit.” /d. at 487 (footnote omitted). The Court

explained that “even if the challenged search produced

evidence that was introduced in a state criminal trial resulting

in the § 1983 plaintiff's still-outstanding conviction,” success

on the merits of an unreasonable search claim “would not

11

necessarily imply that the plaintiffs conviction was unlaw-

ful” because of “doctrines like independent source and in-

evitable discovery, and especially harmless error.” /d. at 487

n. 7 (citations omitted).

In a recent decision the Court explained that it was “careful

in Heck to stress the importance of the term ‘necessarily.””

Nelson v. Campbell, 541 U.S. 637, 647 (2004). It repeated

and reaffirmed Heck's example of a section 1983 damages

action for an illegal search that, even if successful, would not

necessarily demonstrate invalidity of a crimina] conviction

and that “should be allowed to proceed, in the absence of

some other bar to the suit”:

[W]e acknowledged that an inmate could bring a

challenge to the lawfulness of a search pursuant to

§ 1983 in the first instance, even if the search revealed

eviderice used to convict the inmate at trial, because

success on the merits would not “necessarily imply that

the plaintiff's conviction was unlawful.”

Id. at 647 (citing Heck, 512 U.S. at 487 n. 7).

The -Court’s focus on the importance of the term

“necessarily” supports reading Heck as embracing a general

rule that claims for damages arising out of a false arrest or

other seizure prohibited by the Fourth Amendment do not

imply the invalidity of a conviction.’ A finding that there is

* There would seem to be no reason that the rule—stated in Heck and

repeated in Ne/son—that damages for a search allegedly prohibited by the

Fourth Amendment do not imply the invalidity of a conviction should not

also include a suit for damages attributable to an arrest allegedly

prohibited by the Fourth Amendment. A court in a civil action can decide

that an individual was subjected either to an illegal search Or to an illegal

arrest without reaching the issue whether the evidence found or confession

obtained should be excluded from the criminal trial and without making

any additional determination about the effect of excluding evidence on the

validity of a conviction. Indeed, because damages for false arrest as well

as damages for illegal search do not include damages for conviction or

12

no probable cause for an arrest or for a search is logically

incapable of necessarily demonstrating that a conviction is

invalid. A finding of no probable cause may be a neces-

sary—but not sufficient—element to support a determination

that a conviction is invalid. The absence of probable cause,

of course, is the starting point for arguments that the fruits of

an arrest or search are tainted by the violation of the Fourth

Amendment, that the tainted fruit is inadmissible, and that the

tainted fruit would be critical to a conviction. A finding of no

probable cause by itself, however, does not “necessarily”

imply that a conviction is invalid because there must be other,

intervening determinations such as “no attenuation,” “no

inevitable discovery,” or “no harmless error.” See Heck, 512

U.S. at 487 n. 7 (noting doctrines such as inevitable dis-

covery, independent source, and harmless error).

Although the absence of probable cause may lead to a

challenge to the validity of a conviction, and be an element of

that challenge, Heck expressly rejected an argument that

“[e}xhaustion of state remedies should be required . . . not just

when success in the § 1983 damages suit would necessarily

show a conviction or sentence to be unlawful, but whenever

judgment in a § 1983 action would resolve a necessary

element to a likely challenge to a conviction, even if the §

1983 court [need] not determine that the conviction is

invalid.” Heck, 512 U.S. at 488 (internal quotation marks

omitted). Though probable cause for arrest may be a

necessary element to a challenge to a conviction, the action

“should be allowed to proceed” because a determination in a

section 1983 damages action whether an arrest or other

seizure is prohibited by the Fourth Amendment does not

“necessarily” entail any determination whether the fruits of an

incarceration, see infra at 15, a section 1983 court in an action for

damages for false arrest or for illegal search has no occasion to consider

whether the fruits of that arrest are tainted or whether there would have

been a conviction absent admission of the fruits of an illegal arrest.

13

allegedly unconstitutional arrest or search may be used in a

state prosecution, much less whether a conviction is valid. /d.

at 487, 488.

2. Federalism Issues Raised by a Section 1983

Damages Action for False Arrest are

Addressed as a Matter of Comity and Not by

Departures from Settled Rules of Accrual

Although Heck, as the court below held, clearly supports a

general rule that claims for damages arising out of a false

arrest or other seizure prohibited by the Fourth Amendment

do not necessarily imply the invalidity of a conviction, other

courts have made case-by-case determinations about the

relationship of false arrest claims to convictions. See Gibson

v. Superintendent of N.J. Dep't of Law & Pub. Safety Div. of

State Police, 411 F.3d 427, 448-49 (3d Cir. 2005) (Fuentes,

J., pt. IIA. majority opinion) (noting the “two dominant

approaches” to the question of whether accrual of Fourth

Amendment claims is deferred under Heck, and “the general

trend among the Courts of Appeals has been to employ the

fact-based approach”), cert. denied, 126 S.Ct. 1571 (2006).

This creates an unworkable rule. If these courts conclude

—on the basis of either a prediction about the possible course

of a state criminal proceeding or a retrospective review

thereof—that a particular false arrest claim would not or did

not necessarily imply the invalidity of conviction, then that

false arrest action accrues at arrest. If, however, the court

concludes that a particular false arrest claim would or did

necessarily imply the invalidity of a conviction, then that

false arrest action accrues when conviction is invalidated.

Even if this case-by-case approach were a plausible reading

of Heck, the consegyence of this approach—delayed accrual

of some false arrest actions—finds little support in that case.

Delayed accrual, moreover, ignores Heck's prescription that

the federalism issues raised by the direction that certain 1983

14

damage actions “proceed” should be resolved as a matter of

comity. See Heck, 512 U.S. at 487 & n. 8; Balisok, 520 U.S.

at 649. Most importantly, delayed accrual comes at a very

high cost to fundamental policies underlying well-settled

rules of accrual and statutes of limitations.

Delayed accrual of false arrest actions finds little support in

Heck, which—far from marking any departure from tradi-

tional rules of accrual—-simply applied the normal accrual

rule for actions seeking ‘damages for conviction and con-

finement: such actions accrue when the conviction is

set aside. In Heck, the Court held that a section 1983 action

for damages arising from conviction and confinement was

analogous to the common-law action for malicious prose-

cution, which “permits damages for confinement imposed

pursuant to legal process.” 512 U.S. at 484. On the facts

presented,” the Court adopted as the federal accrual rule the

same rule that applies to an action for malicious prosecution:

Just as a cause of action for malicious prosecution does

not accrue until the criminal proceedings have termi-

nated in the plaintiff's favor, so also a § 1983 cause of

action for damages attributable to an unconstitutional

conviction or sentence does not accrue until the con-

viction or sentence has been invalidated.

Heck, 512 U.S. at 489-90 (citations omitted).

There is, however, no analogy between an action under

section 1983 for damages for conviction and confinement, at

issue in Heck, and an action for damages for arrest without

probable cause. An action for damages for arrest without

probable cause is analogous to a common-law action for false

* Heck alleged that prosecutors and a police investigator “had engaged

in an ‘unlawful unreasonable, and arbitrary investigation’ leading to [his]

arrest; ‘knowingly destroyed’ evidence ‘which was exculpatory. . .”; and

caused ‘an illegal and unlawful voice identification procedure’ to be used

at [his] trial.” 512 U.S. at 479.

15

arrest, and Heck expressly recognized that a false arrest action

seeks damages not for conviction and confinement, but for

“the time of detention up until issuance of process or

arraignment, but not more.”® /d. at 484 (internal quotation

marks and citation omitted). Damages for false arrest can be

awarded entirely apart from damages that might be available

for conviction and confinement. See id. at 487 n. 7. False

arrest damages for the period from arrest to first legal process

can be awarded even if there is no criminal proceeding or no

conviction and confinement.

Heck applied the normal accrual rule for actions seeking

damages for conviction and confinement; it provides no

warrant for changing the rule of accrual for other actions, like

false arrest, that seek damages unrelated to conviction and

confinement. Instead of altering accrual rules, Heck antic-

ipated that federalism issues—raised by its direction that

section 1983 damages actions that do not necessarily imply

the invalidity of a conviction “should be allowed to pro-

ceed in the absence of some other bar to the suit,” 512 U.S.

at 487 (footnote omitted)—would be addressed as a matter

of comity.

The federalism issue raised by a section 1983 damages

action that does not imply the invalidity of a conviction, like a

false arrest claim, is not interference with federal habeas

corpus and exhaustion of state remedies. Heck makes clear

that a false arrest damages action does not implicate any

requirement “to resort to state litigation and federal habeas

before § 1983” because it “threatens no consequence for fa

prisoner's} conviction or the duration of his sentence.”

Muhammad, 540 U.S. at 751. The federalism issue posed by

* Confining damages for a false arrest cause of action to this period

does not leave a section 1983 plaintiff without adequate remedies for post-

arraignment constitutional violations. See Heck, 512 US. at 484

(damages available to “a successful malicious prosecution plaintiff’).

16

Heck's directive that the section 1983 action “should be

allowed to proceed” is the possibility of parallel federal civil

and state criminal or civil proceedings. _

Heck cautions generally that section 1983 actions—such as

actions for illegal search and false arrest—that do not imply

the invalidity of a conviction “should be allowed to proceed”

only “in the absence of some other bar to the suit.” 512 U.S

at 487 & n. 8. It points specifically to abstention as the

answer to the potential problems of parallel federal and state

court proceedings:’ “if a.state criminal defendant brings a

” In addition to the possibility of parallel_federal and state court

proceedings, which are to be addressed as a matter of comity, section

1983 false arrest damages actions may raise concerns about avoiding

different outcomes in federal and state proceedings and avoiding collateral

attacks on criminal convictions through a civil suit. See Heck, 512 U.S. at

484 (noting that accrual of malicious prosecution action after conviction is

set aside (1) “avoids parallel litigation,” (2) “precludes the possibility of

the claimant succeeding in the tort action after having been convicted in

the underlying criminal prosecution, in contravention of a strong judicial

policy against the creation of two conflicting resolutions arising out of the

same or identical transaction,” and (3) avoids a “collateral attack on the

conviction through the vehicle of a civil suit”).

A section 1983 false arrest action is not a collateral attack on a

conviction because damages for an arrest made without probable cause do

not “necessarily” imply the invalidity of a conviction. See supra at 9-13.

Heck contemplated a risk of some inconsistency between findings on

issues like probable cause because it declined to adopt a “broader” rule

that “Je)xhaustion of state remedies should be required . . . not just when

success in the § 1983 damages suit would necessarily show a conviction

or sentence to be unlawful, but whenever ‘judgment in a § 1983 action

would resolve a necessary element to a likely challenge to a conviction,

even if the § 1983 court [need] not determine that the conviction is

invalid.” 512 U.S. at 488. Heck also contemplated that if a section 1983

court did not abstain and a civil rights action proceeded before state

proceedings were complete, any inconsistency in findings, on issues like

probable cause, as opposed to inconsistent outcomes or resolutions, would

be permissible given “court-made preclusion rules.” /d. at 487 n. 9

(preclusion rules can “take account of the policy embodied [in the

17

federal civil-rights lawsuit during the pendency of his crim-

inal trial, appeal, or state habeas action, abstention may be an

appropriate response to the parallel state-court proceedings.”

512 U.S. at 487 n. 8. The criteria for abstention in the face of

pending state trial, state appeal, or state post-conviction

proceedings are beyond scope of the question presented. Two

points, nonetheless, are worth noting. First, abstention criteria

will be an issue regardless of whether Heck is read as

embracing a general rule that false arrest actions “proceed”

because they do not necessarily imply the invalidity of a

conviction or as countenancing a case-by-case approach

under which some, but not all, false arrest damages actions

“proceed.” Second, abstention may well take into account the

differences (and possible conflict) between discovery in a

section 1983 civil action and discovery in a criminal

proceeding. See Degen v. United States, 517 U.S. 820, 825-

26 (1996) (discussing difficulties in discovery created by con-

current civil and criminal litigation). Delayed accrual thus

serves no purpose that is not better served by a clear rule that

a false arrest action accrues at arrest and that a section 1983

false arrest damages action “shall proceed” unless comity

requires abstention.

Il. A BRIGHT-LINE RULE THAT A CLAIM FOR

DAMAGES FOR FALSE ARREST .ACCRUES

AT THE TIME OF ARREST ENSURES

PREDICTABILITY AND AVOIDS_ TIME-

CONSUMING LITIGATION

A clear rule -that a claim for damages for false arrest

accrues at the time of the arrest is far preferable to a variable

exhaustion requirements of the habeas corpus statute] that state courts be

given the first opportunity to review constitutional claims bearing upon

State prisoners’ release from custody”). To the extent that other

circumstances might present some risk of inconsistent findings, they are

also appropriately addressed under abstention and preclusion principles.

18

rule of accrual, which is the produet of case-by-case deter-

mination whether a particular‘arrest implies the invalidity of a

conviction. Such case-by-case determinations and delayed

accrual of some but not all claims are “at odds with the basic

policies of all limitations provisions: repose, elimination of

stale claims, and certainty about a plaintiffs opportunity for

recovery and a defendant's potential liabilities.” Rotella, 528

U.S at 555. Case-by-case determination of accrual of false

arrest actions, like case-by-case “analysis of the particular

facts of each claim” to select a statute of limitations,

“inevitably breeds uncertainty and time-consuming litigation

that is foreign to the central purposes of § 1983.” Wilson v.

Garcia, 471 U.S. at 272.

A. A Clear Rule of Accrual Relieves Federal

Courts From Making Case-by-Case Predic-

tions About the Relationship of Arrests to

Convictions

In the absence of a clear rule that a damages action for

false arrest does not imply the invalidity of a conviction,

some courts have undertaken a case-by-case consideration of

the relationship of false arrest claims to a possible conviction.

Under this approach, a false arrest damages action does not

accrue until the conviction is set aside if a court makes an

individualized determination that a finding of no probable

cause for arrest would necessarily imply the invalidity of a

conviction. See Cabrera v. City of Huntington Park, 159

F.3d 374, 380 (9th Cir. 1998) (“[o]n these facts” a finding of

no probable cause would imply the invalidity of the

conviction, so the “false arrest and imprisonment claims were

not cognizable and did not accrue” until the conviction was

invalidated). Conversely, a false arrest damages action

accrues at the time of the arrest if there is a case-specific

determination that a finding of no probable cause for arrest

would not necessarily imply the invalidity of a conviction.

See Gibson, 411 F.3d at 449-50 (Heck “requires a fact-based

19

inquiry” and “in some cases Fourth Amendment claims for

false arrest begin to accrue at the time of arrest”).

Faced with this uncertainty, a prudent lawyer or pro se

plaintiff will file a section 1983 damages action for false

arrest within the limitations period after the time of the arrest.

Then, depending on the progress of state criminal proceed-

ings at the time of the filing, the court in which the section

1983 action is filed will be forced to make either a prediction

or a retrospective determination about the relation of an arrest

to a conviction—a determination that would be entirely

unnecessary under a general rule that false arrest damages

actions do not imply the invalidity of a conviction and that

such actions “should be allowed to proceed in the absence of

some other bar to the suit.” Heck, 512 U.S. at 487.

A prudent lawyer will not run the risk of filing a section

1983 false arrest damages action after a conviction is set aside

and will, instead, file the action within the limitations period

after an arrest. To do otherwise would risk that the court will

decide that false arrest damages do not imply the invalidity of

a conviction. In that event, the false arrest action will have

accrued at the time of arrest. If the limitations period for a

false arrest claim has run before the conviction is set aside,

the lawyer may have resort to some variant of equitable

tolling, although equitable tolling is “the e: ception, not the

rule.” Rotella, 428 U.S. at 561.

To avoid this risk, lawyers will take the much safer course

of filing a section 1983 damages action within the period of -

limitations after the arrest. A court will then have to make a

prediction whether false arrest damages imply the invalidity

of a conviction. If the court predicts that false arrest damages

imply the invalidity of the conviction, the false arrest action

will accrue when the conviction was set aside, and the section

1983 action will be dismissed, presumably without prejudice.

If, on the other hand, the court predicts that damages for false

arrest do not imply the invalidity of a conviction, then the

20

false arrest action will have accrued at the time of arrest, and

the 1983 action will proceed “in the absence of some other

bar to the suit.” JJeck, 512 U.S. at 487.

A judicial prediction whether a section 1983 damages

action for false arrest would, or would not, imply the

invalidity of a conviction is, as the court below recog-

nized, an uncertain and difficult matter. Pet. App. 12 (“ex

ante it is not readily apparent which criminal cases might

proceed despite the consequences of the successful Fourth

Amendment challenge”). The section 1983 court must

predict the outcome of a state criminal prosecution. It must

predict first whether there is probable cause, and then,

assuming that it predicts that an arrest or search is invalid

because there was no probable cause, it must predict whether

success on the false arrest action would necessarily imply the

invalidity of the conviction. This second level of prediction

will require a judicial determination whether a statement or

other evidence is inadmissible as the tainted fruit of illegal

arrest or search or whether it is otherwise admissible under

such doctrines as independent source, inevitable discovery,

and harmless error. See Heck, 512 U.S. 487 n. 7.

A prediction whether the fruits of an arrest or search are

admissible because they are sufficiently attenuated from

unconstitutional conduct is difficult because it “must be

answered on the facts of each case.” Brown v. Illinois, 422

U.S. 590, 603 (1975); see J.A. 27-34 (Illinois Appellate

Court’s determination under Brown that Wallace's statement

was not sufficiently attenuated from his illegal arrest to be

admissible). The difficulties of the predictions that a section

1983 court must make under the case-by-case approach are

suggested by consideration of just one of the doctrines—

harmless error—that may support a determination that a par-

ticular arrest does not imply the invalidity of a conviction.

With respect to the harmless error doctrine, one prominent

commentator has observed that, under the case-by-case

21

approach, a determination whether a particular arrest would

imply the invalidity of a conviction may “turn on a rather

delicate analysis of the harmless error rule or some variant of

it....” Richard H. Fallon, Jr. et al., Hart and Wechsler’s

The Federal Courts and the Federal System 1450 (Sth ed.

2003). This observation is well-taken. A prediction whether

it is harmless error to admit a statement or other evidence,

which is the fruit of an arrest or search made without

probable cause, is difficult because it is fact-intensive. See

United States v. Lane, 474 U.S. 438, 448 (1986) (“In the final

analysis judgment in each case must be influenced by

conviction resulting from examination of the proceedings in

their entirety, tempered but not governed in any rigid sense of

stare decisis by what has been done in similar situations.”’)

(quoting Kotteakos v. United States, 328 U.S. 750, 762

(1946); 3B Charles Alan Wright & Arthur R. Miller, Federal

Practice and Procedure § 854, at 461-62 (3d ed. 2004) (in

determining harmless error courts necessarily must look to

the circumstances of the particular case and decisions in other

cases are only of limited value). A clear rule that false arrest

actions accrue at arrest relieves federal courts of the burdens

of making fact-specific preliminary determinations about the

relationship of an arrest to a conviction.

B. Delayed Accrual of False Arrest Actions Con-

flicts with the Fundamental Purposes of

Statutes of Limitations

In addition to unnecessary litigation over accrual issues, a

determination under the case-by-case approach that a false

arrest action accrues only after a conviction is set aside

“would bar repose, prove a godsend to stale claims, and doom

any hope of certainty in identifying potential liability.”

Rotella, 528 U.S. at 559. Statutes of limitations provide

repose, foster accurate fact-finding, and promote judicial

efficiency. Decisions that delay or extend accrual interfere

with legislative judgments about the proper balance of these

22

interests and enforcement-of substantive policies, and they

cause significant problems “on a human level.” Wilson, 471

U.S. at 275 n. 34 (“On a human level, uncertainty about

[limitations periods] is costly to all parties.”).

Statutes of limitations are “statutes of repose,” which

“represent a pervasive legislative judgment that it is unjust to

fail to put the adversary on notice to defend within a specified

period of time and that the right to be free of stale claims in

time comes to prevail over the right to prosecute them.”

United States v. Kubrick, 444 U.S. 111, 117 (1979) (internal

quotation marks omitted). Statutes of limitations, however,

are not only provisions “assur[ing] potential defendants that

after the expiration of a given period they will not be subject

to defend against judicially asserted claims.” 1 Calvin W.

Corman, Limitation of Actions § 1.1, at 8 (1991).

Statutes of limitations also promote the search for the truth:

“Just determinations of fact cannot be made when, because of

the passage of time, the memories of witnesses have faded or

evidence is lost.” Wilson, 471 U.S. at 271; see also Board of

Regents of Univ. of State of N.Y. v. Tomanio, 446 U.S. 478,

487 (1980) (statutes of limitations promote “the accuracy of

the fact-finding process”). Moreover, statutes of limitations

promote judicial efficiency. See, e.g., Corman, § 1.1, at 16

(“Judicial efficiency is the reward when these statutes pro-

duce speedy and fair adjudication of the rights of the parties”

and promote “[c]ertainty and finality in the administration

of affairs”).

At bottom, statutes of limitations, which “are found and

approved in all systems of enlightened jurisprudence,”

Kubrick, 444 U.S. at 117 (internal citation and quotation

marks omitted), reflect a careful legislative balancing of

important interests:

[A]lthough affording plaintiffs what the legislature

deems a reasonable time to present their claims, they

protect defendants and the courts from having to deal

23

with cases in which the search for truth may be seriously

impaired by the loss of evidence, whether by death or

disappearance of witnesses, fading memories, disap-

pearance of documents, or otherwise.

Id. ‘Thus, in borrowing state statutes of limitations for

personal injury as the rule for section 1983 civil rights

actions, this Court observed that “federal law incorporates the

State’s judgment on the proper balance between the policies

of repose and the substantive policies of enforcement

embodied in the state cause of action.” Wilson, 471 U.S.

at 271.

Because a statute of limitations does not begin to run until

an action accrues, a rule that would delay accrual beyond

injury discovery interferes with judgments about the proper

balance of repose, accuracy of fact finding, judicial

efficiency, and enforcement of substantive policies. In

Rotella, for example, the Court recognized that delayed

accrual would interfere with policies underlying a four-year

statute of limitations that it had previously adopted for RICO

actions. 528 U.S. at 553. It compared “an injury discovery

accrual rule starting the clock when a plaintiff knew or should

have known of his injury” with “an injury and pattern

discovery rule . . . under which a civil RICO claim accrues

only when the claimant discovers, or should discover, both an

injury and a pattern of RICO activity.” Jd.

The Court rejected the injury and pattern discovery rule, a

departure from the traditional federal accrual rule of injury

discovery, because the delay in accrual and consequent

extension of the period of limitations was “at odds with the

basic policies of all limitations provisions: repose, elimination

of stale claims, and certainty about a plaintiff's opportunity

for recovery and a defendant’s potential liabilities.” /d. at

555; see also id. at 554 (noting that the Court had previously

rejected another extended rule of accrual in RICO actions

because “(p]reserving a right of action for . . . a vast stretch

24

of time would have thwarted the basic objective of repose

underlying the very notion of a limitations period”) (citing

Klehr v. A.O. Smith Corp., 521 U.S. 179, 189 (1997)).

Accrual of a section 1983 action is a matter of federal law,

and application of the rule that a false arrest action accrues at

the time of the arrest—the traditional federal injury discovery

accrual rule—is consistent with respect for legislative judg-

ments about “the proper balance between the policies of

repose and the substantive policies of enforcement.” Wilson,

471 U.S. at 271. The case-by-case approach — delayed

accrual of some false arrest actions until a conviction is set

aside—upsets this balance.

The problems created by delayed accrual are more than

systemic. The Court has recognized that “[o]n a human level,

uncertainty [about the limitations period] is costly to all

parties.” Jd. at 275 n. 34. As the Court explained:

Plaintiffs may be denied their just remedy if they delay

in filing their claims, having wrongly postulated that the

courts would apply a longer statute. Defendants cannot

calculate their contingent liabilities, not knowing with

confidence when their delicts lie in repose.

Id. Just as uncertainty about the limitations period causes

problems on the human level, so does uncertainty about

accrual because a limitations period does not begin to run

until the action accrues.

This case—with the passage of more than nine years from

Wallace’s arrest to the filing of his section 1983 action—

iNJustrates the problems of delayed accrual for defendants.

Police officers make many arrests during one year and an

untold number in the course of their careers. See U.S. Dept.

_ of Justice Federal Bureau of Investigation, Crime in the

United States 2005 tbl. 29, available at http://www.fbi..

gov/ucr/OScius/index.html (for 29 offenses for which data is

collected, there were an estimated 14,094,186 arrests in the

25

United States in 2005). Absent accrual of an action for false

arrest at the time of arrest, police officers will not have timely

notice or an opportunity to preserve evidence for a defense,

and the governmental entities that employ police officers will

hot be able to calculate their contingent liabilities for indemni-

fication and other costs of a judgment against the officer.

The passage of nine years will obviously make it difficult

for officers to “defend against claims for which necessary

evidence may no longer be available, memories may have

faded, or important witnesses may have disappeared.”

Corman, § 1.1, at 11-12. The rule that a false arrest action

accrues at the time of the arrest “protect[s] defendants and the

courts from having to deal with cases in which the search for

truth may be seriously impaired by the loss of evidence,

whether by death or disappearance of witnesses, fading

memories, disappearance of documents, or otherwise.”

Kubrick, 444 U.S. at 117. It also “afford[s] plaintiffs . . . a

reasonable time to present their claims,” id., which in all but

four states and Puerto Rico is at least two years.*

As this case illustrates, civil rights plaintiffs should be able

to file section 1983 actions within two years of arrest, or

earlier if required by the applicable statute of limitations.

Wallace filed a motion to quash his arrest and suppress

’ According to one comprehensive listing, the statute of limitations in

section 1983 actions in Illinois; 2! other States, and Guam is two years.

The statute of limitations is one year in four States and Puerto Rico.

Fourteen States and the District of Columbia have three-year periods of

limitations; four States have a four-year statute of limitations; one State

has a five-year period of limitations; and three States and the Virgin

Islands have a six-year period of limitations. 1C Martin A. Schwartz,

Section 1983 Litigation: Claims and Defenses § 12.9, at 45-57 (3d ed.

1997 & Supp. 2003-1 § 12.9, at 685-88). Although the statutes of

limitations applied in two States, New Hampshire and South Carolina, are

not included in this compilation, the limitations period for persona] injury

actions in these States is three years. See N.H. Rev. Stat. § 508:4; S.C.

Code 1976 § 15-3-535.

26

evidence on August 18, 1994, just one day short of seven

months after he was arrested. Supp. App. 57.’ Although the

motion to quash contained few details, it did allege a lack of

probable cause. /d. at 58. Moreover, the hearings on this

motion, which were held between April 26, 1995 and January

18, 1996, show that Wallace had sufficient information to file

his section 1983 false arrest action well within two years of

his arrest. See J.A. 7-11 (Op. of Ill. App. Ct.). In short, when

Wallace initiated his section 1983 action more than nine

years after his arrest, his complaint, Supp. App. 1, and

amended complaint, Supp. App. 16, advanced claims that he

could have asserted well prior to the expiration of the

limitations period.

C. Accrual of False Arrest Actions at the Time of

Arrest Avoids Uncertainty- and Time-Consum-

ing Litigation That is Foreign to the Central

Purposes of Section 1983

The Court has frequently recognized the importance of

jurisdictional tests that are clear, easily applied, and lead to

predictable results. See Grupo Dataflux v. Atlas Global

Group, L.P., 541 U.S. 567, 582 (2004); Jerome B. Grubart,

Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 547

(1995); see also Charles Alan Wright, The Federal Courts — a

Century After Appomattox, 52 A.B.A. J. 742, 745 (1966)

(jurisdictional line between federal and state courts “should

be bright and clear, so that judicial time is not wasted on

cases brought in the wrong court”); cf Atwater v. City of

Lago Vista, 532 U.S. 318, 345-54 (2001) (Fourth Amendment

is not well served by. case-by-case determinations and there is

an “essential interest in readily administrable rules”).

* References to “Supp. App.” are to the Supplemental Appendix of

Plaintiff-Appellant Andre Wallace filed in the court of appeals (7th Cir.

No. 04-3949).

27

Clarity and certainty are equally important in other mat-

ters—like accrual—-that go to the initiation of an action. A

clear rule that false arrest actions accrue at the time of arrest

avoids the uncertainty of case-by-case predictions whether a

particular arrest was made without probable cause and

whether it would imply the invalidity of a conviction. Such a

clear rule also avoids uncertainty that would interfere with

“an effective remedy for the enforcement of federal civil

rights” under section 1983, Wilson, 471 U.S. at 275, and

spares federal courts time-consuming and fact-intensive

litigation over accrual issues.

For these reasons, in determining the statute of limitations

for section 1983 actions, the Court has rejected a fact-specific

approach:

The experience of the courts that have predicated their

choice of the correct statute of limitations on an analysis

of the particular facts of each claim demonstrates that

their approach inevitably breeds uncertainty and time-

consuming litigation that is foreign to the central pur-

poses of § 1983.

Id. at 272. A clear, bright-line rule that a section 1983

damages action for false arrest accrues at arrest is “consistent

with the assumption that Congress intended the identification

of the appropriate statute of limitations to be an uncom-

plicated task for judges, lawyers, and litigants, rather than a

source of uncertainty, and unproductive and ever-increasing

litigation.” Jd. at 275: see Owens v. Okure, 488 US. 235, 247

(1989) (“[OJur task today is to provide courts with a rule for

determining the appropriate personal injury limitations stat-

ute that can be applied with ease and predictability in all

50 States.”).

Statutes of limitations begin to run from the accrual of the

cause of action, and if the day of accrual is unclear, the period

of time within which the action must be filed is equally

unclear. Just as the Court has rejected a fact-specific ap-

28

proach to the statute of limitations for section 1983 actions, it

should reject a fact-specific approach to determining when

these actions accrue.

CONCLUSION

The judgment of the court of appeals should be affirmed.

Respectfully submitted,

D. BRUCE LA PIERRE RICHARD RUDA*

WASHINGTON UNIVERSITY Chief Counsel

SCHOOL OF LAW STATE AND LOCAL LEGAL

APPELLATE CLINIC CENTER

One Brookings Drive 444 North Capitol Street, N.W.

St. Louis, MO 63130 Suite 309

(314) 935-6477 Washington, D.C. 20001

(202) 434-4850

October 10, 2005 * Counsel of Record for the

Amici Curiae