Amicus Curiae Brief — Wallace v. Kato

FILED

OCT 10 2005

(8) OFFICE OF THE CLERK

No. 05-1240 SUPREME COURT, U.S.

In the Supreme Court of the United States

ANDRE WALLACE, PETITIONER,

v.

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 THE STATES OF ILLINOIS, ALABAMA,

DELAWARE, IOWA, MONTANA, NORTH DAKOTA,

OKLAHOMA, SOUTH CAROLINA, UTAH,

WASHINGTON AND WISCONSIN, AND THE

DISTRICT OF COLUMBIA, AS AMICI CURIAE IN

SUPPORT OF RESPONDENTS

LiSA MADIGAN

Attorney General of Illinois

GARY FEINERMAN*

Solicitor General

MICHAEL SCODRO

Deputy Solicitor General

100 West Randolph Street

Chicago, Illinois 60601

*Counsel of Record (312) 814-3698

[additional counsel listed on signature page]

————————————— eee eee

i

QUESTION PRESENTED

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?

il

TABLE OF CONTENTS

Page

QUESTION PRESENTED ................cceeeeees i

TABLE OF AUTHORITIES ..............0.0eeueee iv

INTEREST OF THE AMICI CURIAE .........6.02005: 1

RRR SE SN Canir a eee ae Hc PLR gD |

SUMMARY OF ARGUMENT ...............--0000- 4

SRE DOE aR Maly WY etree Fe OME 6

I. Wallace’s Case-By-Case Approach Cannot Be Squared -

With The Rule Of Heck Or Its Rationale............ 7

A. The Rule In Heck Turns On Whether A Successful

Claim For Damages Can Coexist Doctrinally With

A Lawful Criminal Conviction ................ 7

B. Wallace’s Damages Theory Does Not Affect The

SEE eabderscheuveepesansenbeavecas 11

C. Fourth Amendment Claims Do Not Implicate

Heck’s Goal Of Avoiding An End Run Around

PR 6 5 cccccuescen.counensesoueens 15

Il. Wallace’s Approach To Accrual Is Unworkable .... 16

A. Time Bars Should Be Certain And Predictable ... 16

ill

TABLE OF CONTENTS-Continued

- Page

B. Wallace’s Case-By-Case eens Would Foster

ED Sno 0 00606 Mb bsctdntadeese 18

EE Sisédéctkodentcawncdiwoennebewsnes 21

iv

TABLE OF AUTHORITIES

Cases: Page

Beck v. City of Muskogee Police Dep't, 195 F.3d 553

tool BPP ee 13

Board of Regents, University of State of New York

v. Tomanio, 446 U.S. 478 (1980)................. 14

Braxton v. Scott, 905 F. Supp. 455 (N.D. Ohio 1995) .... 13

Colorado River Water Conservation . Dist. v.

United States, 420 U.S. 800 (1976) ............... 20

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

ot Mh Peer ee ey 18, 19

Gauger v. Hendle, 349 F.3d 354 (7th Cir. 2003) ....... 2,3

Gonzalez v. Entress, 133 F.3d 551 (7th Cir. 1998) ... 13,14

Green v. Butler, 420 F.3d 689 Ul? & ae |

Hardin v. Straub, 490 U.S. 536 (1989) ............... 14

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

Herman v. City of Chicago, 870 F.2d 400

CR Cae, FUGRD occ csvccvecsectosscusunanaus 16, 18

Hill v. McDonough, 126 S. Ct. 2096 (2006) ............ 7

Hudson v. Michigan, 126 S. Ct. 2159 (2006) ....... 10, 11

Vv

TABLE OF AUTHORITIES-Continued

Page

Morgan v. South Bend Community Sch. Corp., .

i En ic cpedsececcoveccesee 16

Nelson v. Campbell, 541 U.S. 637 (2004) ........... 7,10

Owens v. Okure, 488 U.S. 235 (1989) .:........... 16, 17

Preiser v. Rodriquez, 411 U.S. 475 (1973) ...........4. 7

Russell v. Harms, 397 F.3d 458 (7th Cir. 2005) ......... l

Stone v. Powell, 428 U.S. 465 (1976) .............. 5,15

Wilkinson v. Dotson, 544 U.S. 74 (2005). ........... 9,15

Wilson v. Garcia, 471 U.S. 261 (1985) .... 8, 14, 16, 17, 20

Constitutional Provisions:

CE Keectccdesuaeche<saneeee passim

SE 4

Statute and Rule:

SE o60000enannecdtsceectcescuces passim

i oe | 12

l

INTEREST OF THE AMICI CURIAE

This case presents the question whether a civil damages

claim arising from an alleged Fourth Amendment violation

accrues (i) when the challenged search or seizure occurs, as the

Seventh Circuit held and respondent City of Chicago urges, or

(ii) on a date that depends upon the particular facts of each case,

as petitioner Andre Wallace maintains.

Amici States have a strong interest in the resolution of this

question. Although this case involves a municipality, state

employees and officers frequently are named as defendants in

suits brought under 42 U.S.C. § 1983 alleging Fourth

Amendment violations. See, e.g., Green v. Butler, 420 F.3d

689 (7th Cir. 2005); Russell v. Harms, 397 F.3d 458 (7th Cir.

2005). The Seventh Circuit’s bright-line rule, aside from

protecting the States from additional rounds of litigation in

§ 1983 suits, provides certainty and predictability, which

benefits civil plaintiffs and state defendants alike. Starting the

limitations clock with the challenged search or seizure,

moreover, promotes the important state interest in seasonal

notice of alleged wrongdoing by state actors, and permits the

States to preserve evidence relevant to future civil claims.

STATEMENT

The history of this case well illustrates the advantages of the

Seventh Circuit’s bright-line rule and the uncertainty and

potential for abuse inherent in petitioner’s alternative.

1. John Handy was shot and killed on January 17, 1994.

Chicago police officers investigating the murder brought

petitioner Andre Wallace to the police station for questioning

two days later. Early the next morning, after confronting

Wallace with statements by witnesses who claimed they saw

him running from the crime scene after hearing gun shots,

Wallace confessed. Pet. App. 2-3.

2

2. Prior to trial, Wallace maved to suppress his confession

on two grounds, claiming that officers (i) arrested him without

probable cause and (ii) obtained his confession unlawfully. The

trial court denied the motions and, following a bench trial,

found Wallace guilty of first degree murder. Pet. App. 3-4.

Wallace appealed, and on September 21, 1998, the

Appellate Court of Illinois held that he had been unlawfully

arrested and remanded for a hearing on whether his confession

was sufficiently attenuated from the unlawful arrest to be

admissible. J.A. 6-23. On remand, the trial court held that

there was sufficient attenuation and therefore that the

confession was admissible. Wallace again appealed, and the

appellate court reversed, ruling that his confession should have

been suppressed and remanding for a new trial. J.A. 24-35.

The State declined to reprosecute, and filed a nolle prosequi

motion on April 10, 2002. Pet. App. 4.

3. On April 2, 2003, Wallace filed this federal lawsuit

under 42 U.S.C. § 1983 against the City of Chicago and two

Chicago police officers, respondents Kristen Kato and Eugene

Roy, seeking damages for, among other things, alleged

violations of his Fourth Amendment nights. Pet. App. 4. In two

separate opinions, the district court held that Wallace’s claims

were time-barred. Pet. App. 30-52.

With respect to the Fourth Amendment claims, Wallace

relied upon the Seventh Circuit’s then-recent decision in

Gauger v. Hendle, 349 F.3d 354 (7th Cir. 2003). Pet. App. 50.

Based upon its reading of Heck v. Humphrey, 512 U.S. 477

(1994), Gauger held “that when a constitutional claim under

Section 1983 for false arrest would, if vindicated, undermine a

state conviction, the statute of limitations is not tolled until the

charges against the defendant are dropped.” Pet. App. 50-51

(citing Gauger, 349 F.3d at 360-361). The district court

concluded Gauger did not help Wallace because, even if his

3

Fourth Amendment claims did not accrue at the time of his

arrest, they accrued no later than September 21, 1998—more

than four years before he filed his § 1983 suit—when the state

appellate court held his arrest unlawful but remanded for a

finding on attenuation, implying that Wallace’s false arrest

claim did not necessarily undermine his conviction. Pet. App.

51-52.

4. The Seventh Circuit affirmed. Noting that Heck “held

that a constitutional claim [for damages] that would undermine

a criminal conviction if vindicated cannot be brought until the

defendant’s conviction is nullified,” the court observed that the

circuits had divided over whether a false arrest claim could ever

be said to undermine a conviction within the meaning of Heck.

Pet. App. 8, 15. The Seventh Circuit concluded, disapproving

its prior decision in Gauger, that because a successful civil

claim for false arrest does not necessarily undermine a civil

plaintiffs underlying conviction the best course was to impose

a bright-line rule that false arrest claims accrue when the

challenged seizure occurs, not if and when the resulting

conviction is overturned. Pet. App. 12-13.

According to the Seventh Circuit, Heck made clear that

Fourth Amendment claims for “an unlawful search or arrest

may be brought immediately, because a violation of the

[Fourth [A]mendment does not necessarily impugn the validity

of a conviction.” Pet. App. 9 (internal quotations omitted).

And the court found that Waillace’s case-by-case approach

would be impractical because it would require federal § 1983

courts to predict whether, on the facts of a particular case, a

successful Fourth Amendment challenge would necessarily

invalidate the claimant’s conviction:

ex ante it is not readily apparent which criminal cases

might proceed despite the consequences of the

successful Fourth Amendment challenge. This, in our

4

view, argues against a rule that requires judges several

years after the event to decide whether a particular

Fourth Amendment challenge would have been the

death knell of the prosecution.

Pet. App. 12.

5. Wallace filed a certiorari petition seeking review of two

questions: (i) when does a claim for damages under the Fourth

Amendment or for an aliegedly coerced confession under the

Fifth Amendment accrue where the civil plaintiff has been

convicted using the fruits of the alleged misconduct; and (ii) are

damages available under § 1983 for an allegedly “unlawful

seizure that began at the time of arrest and continued to the time

that charges were dismissed.” Pet. i. The Court granted the

petition, limited to the first question, reformulated as follows:

“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?”

SUMMARY OF ARGUMENT

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

plaintiffs from using § 1983 suits to challenge their criminal

convictions collaterally, without satisfying the exhaustion and

other requirements for federal habeas relief. Heck does so by

requiring civil plaintiffs, as an element of their civil causes of

action, to prove that their underlying criminal proceedings

terminated in their favor. The Court was careful to limit this

“favorable termination” requirement to circumstances where

success in the plaintiff's civil suit would “necessarily imply”

the invalidity of any criminal conviction. Jd. at 487.

The Seventh Circuit correctly applied Heck in holding that

a § 1983 claim for false arrest or other unlawful search or

seizure accrues precisely when the challenged search or seizure

5

occurs. The rule in Heck postpones accrual of a § 1983 claim

only if the plaintiff's success on that claim cannot coexist with

a valid criminal conviction or sentence. This rule is derived

from the common law of tort, which makes the plaintiff's

success in his underlying criminal action an element of a

malicious prosecution claim (like the one advanced in Heck),

but not of Fourth Amendment tort analogues like false arrest

and trespass. Heck and its progeny foreclose Wallace’s case-

by-case approach to claim accrual, under which the accrual date

depends not on the claim’s formal legal elements and

compatibility with a valid conviction and sentence, but on the

particular facts of the underlying criminal case and a

determination whether civil claims could coexist with a lawful

conviction on those specific facts.

Wallace’s approach not only is unsound doctrinally, but

also runs counter to Heck’s express purpose and produces

untenable practical consequences. Heck aimed to protect

habeas as the sole federal vehicle for attacking a state

conviction or sentence. But a state criminal court’s decision to

admit evidence procured in violation of the Fourth Amendment

is not grounds for federal habeas relief, see Stone v. Powell, 428

U.S. 465 (1976), so with respect to Fourth Amendment claims

there is no federal habeas vehicle to protect. Ironically, Wallace

reads Heck to require federal § 1983 courts to decide issues that

state courts have yet to decide, merely to determine whether

Heck’s “favorable termination” requirement even applies.

Moreover, resolving the intensely fact-specific issues that

would face district courts at the outset of § 1983 cases would

make it nearly impossible for defendants to prevail on a statute

of limitations defense in many (if not most) such cases on

motions to dismiss or for summary judgment.

Beyond this, there is a basic unfairness in Wallace’s

proposal. Governments have a powerful interest in timely

notice of alleged misconduct by their agents, either to discipline

6

offenders within their ranks or to preserve evidence needed to

defend the wrongly accused. Wallace’s approach, which would

postpone the filing of some § 1983 claims until many years

after the alleged misconduct, runs directly counter to this

interest. At the same time, civil plaintiffs would run the risk

that their counsel would forfeit legitimate claims by erroneously

predicting that the § 1983 court, at some point in the future,

would select a later accrual date.

Amici States respectfully submit that the Seventh Circuit

correctly concluded that it would be most consistent with the

letter and spirit of Heck to hold that claims for damages for

alleged Fourth Amendment violations accrue at the time of the

challenged search or seizure.

ARGUMENT

Wallace’s challenge to the Seventh Circuit’s categorical,

bright-line rule fails on multiple grounds. The alternative he

urges—under which claim accrual depends upon the particular

facts of each case—cannot be squared with Heck v. Humphrey,

512 U.S. 477 (1994). By contrast, the Seventh Circuit’s rule

reflects Heck’s concern with intrinsic, doctrinal

incompatibilities between successful civil claims and

outstanding criminal convictions, and comports with Heck’s

interest in preserving the ability of state courts to resolve

challenges to state criminal proceedings in the first instance. In

~addition, Wallace’s approach would have untoward

consequences. Unlike the Seventh Circuit’s clear and

predictable rule, Wallace’s alternative would delay the filing of

suits alleging official misconduct and would likely trip up

plaintiffs’ counsel trying in good faith to file trmely complaints.

The case-by-case approach also would require an additional

layer of fact-intensive litigation in many § 1983 suits.

7

I. Wallace’s Case-By-Case Approach Cannot Be Squared

With The Rule Of Heck Or Its Rationale.

This case turns in large part on the proper understanding of

Heck. Heck made clear that its “favorable termination”

rule—requiring § 1983 plaintiffs to prove that their criminal

proceedings ultimately terminated in their favor as an element

of their civil claims—does not apply merely when there is some

overlap between the civil and criminal cases. Rather, the rule

applies only where there is an actual inconsistency between a

successful civil claim and a valid conviction. Wallace’s

alternative ignores this requirement and cannot be reconciled

with Heck’s underlying objectives.

A. The Rule In Heck Turns On Whether A Successful

Claim For Damages Can Coexist Doctrinally With A

Lawful Criminal Conviction.

Roy Heck’s § 1983 suit effectively challenged the “legality

of his [state court] conviction” for voluntary manslaughter.

Heck, 512 U.S. at 478-480. Had Heck sought directly to

overturn his actual conviction or sentence, his suit would have

fallen squarely within the prohibition of Preiser v. Rodriquez,

411 U.S. 475 (1973), and his only federal remedy would have

been habeas relief. Heck, 512 U.S. at 481; see also Hill v.

McDonough, 126 §S. Ct. 2096, 2101 (2006); Nelson v.

Campbell, 541 U.S. 637, 643 (2004). But Heck sought only

damages. The problem was that he sought damages on a theory

that, if vindicated, would necessarily have meant that his

conviction was unlawful. Heck, 512 U.S. at 480.

This Court concluded that in suits like Heck’s—where

victory for the plaintiff “would necessarily imply the invalidity

of his conviction or sentence”—the civil “complaint must be

dismissed unless the plaintiff can demonstrate that the

conviction or sentence has been invalidated.” /d. at 487. In

reaching its conclusion, the Court “look{ed] first to the common

8

law of torts,” specifically at “[t]he common-law cause of action

for malicious prosecution.” /d. at 484. Malicious prosecution

“provide[d] the closest analogy” to Heck’s constitutional

challenge because, like Heck’s claim, it “permits damages for

confinement imposed pursuant to legal process.” Jbid. And

among the elements “that must be alleged and proved in a

malicious prosecution action is termination in the prior criminal

proceeding in favor of the accused.” Jbid.; see also Wilson v.

Garcia, 471 U.S. 261, 277 (1985) (“we have found tort

analogies compelling in establishing the elements of a cause of

- action under § 1983”). The common law required proof of this

element to avoid “parallel [civil and criminal] litigation,” and

this Court found the same policy implicated by civil claims, like

Heck’s, “that necessarily require the plaintiff to prove the

unlawfulness of his conviction or confinement.”. Heck, 512

US. at 485.

The Court held that Heck’s “favorable termination”

requirement would apply not only to suits for “damages for

allegedly unconstitutional conviction or imprisonment,” but

also to claims “for other harm caused by actions whose

unlawfulness would render a conviction or sentence invalid.”

Id. at 486. The lone example the Court provided of such an

“other harm” was a Fourth Amendment false arrest suit where

the underlying conviction was for resisting arrest, an offense

that has as one of its elements the legality of the arrest. /d. at

487 n.6. For a civil plaintiff to prevail in such a case, “he

would have to negate an element of the offense of which he has

been convicted.” Jbid. Thus, it would be impossible for both

the plaintiff in the civil case and the prosecution in the criminal

case to prevail without violating the “strong judicial policy

against the creation of two conflicting resolutions” of the same

issue. /d. at 484 (internal quotations omitted). Heck advances

that judicial policy by “specif] ying] that a prisoner cannot use

§ 1983 to obtain damages where success would necessarily

imply the unlawfulness of a (not previously invalidated)

9

conviction or sentence.” Wilkinson v. Dotson, 544 U.S. 74, 81

(2005) (emphasis in original).

By it very nature, a Fourth Amendment § 1983 claim does

not share elements with a criminal offense (with the exception

of the crime of resisting arrest). Accordingly, a successful

damages suit for an unlawful search or seizure does not “require

the plaintiff to prove the unlawfulness of his conviction or

confinement.” Heck, 512 U.S. at 485. This proposition led this

Court to expressly distinguish claims like Heck’s, which

resemble common law claims for malicious prosecution, from

Fourth Amendment claims. The Court noted that the common

law treats malicious prosecution and false arrest claims very

differently, compensating victims of the former for any

resulting conviction and incarceration, but limiting the latter to

harm caused by the arrest itself, without regard to any ensuing

prosecution. See id. at 484 (while “a successful malicious

prosecution plaintiff may recover, in addition to general

damages, compensation for any arrest or imprisonment,

including damages for discomfort or injury to his health, or loss

of time and deprivation of the society,” damages for the tort of

false arrest only “cover the time of detention up until issuance

of process or arraignment, but not more”) (internal quotations

omitted). And the Court explained that claims for unlawful

searches, unlike Heck’s claim, are not intrinsically inconsistent

with a valid conviction:

[A] suit for damages attributable to an allegedly

unreasonable search may lie even if the challenged

search produced evidence that was introduced in a state

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

outstanding conviction. Because of doctrines like

independent source and inevitable discovery, and

especially harmless error, such a § 1983 action, even if

successful, would not necessarily imply that the

plaintiff's conviction was unlawful.

10

Id. at 487 n.7.

Wallace’s case hinges on the fact that footnote seven did

not go even further and say that every Fourth Amendment claim

falls outside of Heck’s “favorable termination” rule. But, as the

Seventh Circuit observed, the facts in Heck did not require the

Court to make such a categorical statement. Pet. App. 12

(“Although the Court refrained from holding that all Fourth

Amendment claims accrue immediately, it had no need to reach

that issue in Heck.”). The crux of the footnote is that any effort

to undo a conviction on Fourth Amendment grounds will

require more than the bare showing that police made an

unlawful search or seizure. Several doctrines will insulate

convictions from reversal—the independent source doctrine, the

inevitable discovery rule, the harmless error doctrine, or

attenuation between a confession and a false arrest.

Consequently, any effort to recover damages for an unlawful

search or seizure will not “necessarily require the plaintiff to

prove the unlawfulness of his conviction or confinement.”

Heck, 512 U.S. at 485. As the Court recently explained, “we

acknowledged [in Heck] 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 evidence used to convict

the inmate at trial, because success on the merits would not

‘necessarily imply that the plaintiff's conviction was

unlawful.” Nelson, 541 U.S. at 647 (quoting Heck, 512 US.

at 487 n.7) (emphasis in original).

The disconnect between a Fourth Amendment violation and

a wrongful conviction deepened even further last Term as a

result of Hudson v. Michigan, 126 S. Ct. 2159 (2006), where

this Court held that exclusion is not the remedy for every Fourth

Amendment violation, even where that evidence “would not

have come to light but for the illegal actions of the police.” Jd.

at 2164 (internal quotations omitted). Evidence obtained

illegally may still be admissible, so long as “the interest

1]

protected by the constitutional guarantee that has been violated

would not be served by suppression” or exclusion’s “deterrence

benefits outweigh its substantial social costs.” /d. at2164,2165 .

(internal quotations omitted). This further uncoupled Fourth

Amendment claims from the validity of the conviction. And

Hudson emphasized that § 1983 actions may be brought to seek

recompense for Fourth Amendment violations even where the

violation did not result in the exclusion of evidence at trial. /d.

at 2166-2168.

In short, Heck limits its “favorable termination”

requirement to civil claims that, by definition, cannot succeed

without necessarily undermining a criminal conviction and

sentence. With the narrow exception identified in Heck for the

crime of resisting arrest, Fourth Amendment claims do not meet

this standard.

B. Wallace’s Damages Theory Does Not Affect The

Accrual Date.

In urging that his Fourth Amendment claim did not accrue

until his release from prison, Wallace relies heavily on the fact

that he seeks damages for his incarceration. He emphasizes that

his imprisonment “was the natural consequence of respondents’

actions” (Pet. Br. 8), that his claim is “for the injury of being

convicted and imprisoned” (id. 10), that the Seventh Circuit

erred by failing to recognize the availability of damages for his

conviction and incarceration (id. 13-14), and that he did not

have a cause of action for these damages until the Illinois courts

overturned his conviction (id. 30). Given these premises,

Wallace contends that his claim did not accrue until his release

because he-sought compensation for the entire period of his

incarceration.

The Seventh Circuit held, correctly, that Wallace is not

entitled to use a Fourth Amendment challenge to seek damages

for his time in prison. Pet. App. 7 (“When a person’s Fourth

12

Amendment rights have been violated by a false arrest, the

injury occurs at the time of the arrest. Thus, ani individual is

entitled to recover only for injuries suffered from the time of

arrest until his arraignment.”). And more to the point, the Court

did not grant Wallace’s petition for certiorari on this issue. See

page 4, supra; Sup. Ct. R. 24.1(a) (petitioner’s brief “may not

raise additional questions”). In any event, Wallace’s attempt to

use his damages theory to defer the accrual of his claims

promotes gamesmanship, misreads Heck, and confuses claim

accrual with tolling.

First, relying on the plaintiff's damages theory to determine

the accrual date of a claim would promote gamesmanship and

artful pleading. By alleging injury from the illegal search or

seizure itself, a § 1983 plaintiff could avoid Heck and advance

a claim regardless of the status of his criminal case.

Conversely, a plaintiff who succeeds in overturning his

conviction years after the challenged search or seizure (and who

might have filed a Fourth Amendment claim earlier but did not)

could avoid the time bar by alleging damages for the period of

his incarceration, as Wallace did here. Such a regime would be

unprincipled and ad hoc, tying the accrual date to the nature of

the injury alleged by each individual! plaintiff.

Second, Wallace’s argument misreads Heck. Wallace

focuses on the last sentence of footnote seven, which states that

“the § 1983 plaintiff must prove not only that the search was

unlawful, but that it caused him actual, compensable injury . . .

which . . . does not encompass the ‘injury’ of being convicted

and imprisoned (until his conviction has been overturned).”

512 U.S. at 487 n.7 (emphasis added); see Pet. Br. 30. But this

passage does not leave it to the plaintiff to decide whether to

avoid the “favorable termination” requirement and seek

immediate accrual (by alleging damages only for the search or

seizure) or to defer accrual (by alleging damages for his

conviction and incarceration). The passage merely bars a

13

plaintiff from seeking damages arising from his conviction or

incarceration unless and until he first mounts a successful

challenge to that conviction or incarceration. See, e.g., Braxton

v. Scott, 905 F. Supp. 455, 458-459 (N.D. Ohio 1995)

(sustaining illegal arrest claim because plaintiff “allege(d]

compensable injuries independent of his conviction and

imprisonment,” but dismissing illegal search claim because

plaintiff “allege[d] no compensable injury from the search

except that the evidence was used in his federal trial’”’).

This bar has no application in a Fourth Amendment case.

As the Seventh Circuit explained years ago, “some injury from

a violation of the fourth amendment is unrelated to conviction,”

and a civil claim accrues when that injury occurs:

Suppose the police search a house without probable

cause, find cocaine, and throw it away, convicting the

defendant on evidence in their possession before the

search? Or suppose they search without probable

cause, find evidence, and use it at trial on an inevitable

discovery or good-faith theory? The court admits the

evidence after finding that the exclusionary rule is not

appropriately invoked, and the conviction is proper; .. .

this does not mean that damages are unavailable for the

invasion of privacy, the broken door, and so on.

Gonzalez v. Entress, 133 F.3d 551, 554 (7th Cir. 1998). “All

Heck does is knock out one element of damages, the injury

from the wrongful conviction, while the conviction stands.”

Ibid.; see also Beck v. City of Muskogee Police Dep't, 195 F.3d

553. 558 n.3 (10th Cir. 1999) (“We read the [Heck] Court’s

latter statement [at the end of footnote seven] as only limiting

the damages a plaintiff may recover in such a case—the

damages cannot include those for being convicted and

imprisoned, at least not until the conviction has been

overturned.”).

14

Third, Wallace’s argument confuses accrual with tolling.

If a party does obtain more time to file suit because his damages

continued to mount after some initial injury, this is the result of

state tolling doctrines, not the federal accrual rule. Section

1983 borrows state limitations laws wholesale, including state

tolling provisions. See Wilson, 471 U.S. at 269; Board of

Regents, University of State of New York v. Tomanio, 446 U.S.

478, 484 (1980). This is the result of “a congressional decision

to defer to 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.” Hardin v.

Straub, 490 U.S. 536, 538 (1989) (internal quotations omitted).

Each State must make its own “value judgment concerning the

point at which the interests in favor of protecting valid claims

are outweighed by the interests in prohibiting the prosecution

of stale ones,” including “tolling, revival, and questions of

application.” Tomanio, 446 U.S. at 485-486 (internal

quotations omitted). “Courts . . . should not unravel state

limitations rules unless their full application would defeat the

goals of the federal statute at issue.” Hardin, 490 U.S. at 539.

States have reached different decisions on the proper tolling

rule in cases where damages aggregate over time. See

Gonzalez, 133 F.3d at 554 (unlike Illinois, “[mJany states treat

the time as tolled when the immediate injury is small in relation

to the deferred injury and would not lead a reasonable person to

file suit unless the greater loss comes to pass”). As the Seventh

Circuit concluded below, these tolling doctrines—not a federal

accrual standard—are the proper source for any rule deferring

claim accrual as damages mount over time. Pet. App. 13 (“we

are addressing only the question of accrual; other doctrines,

such as equitable tolling, may also affect the time in which a

particular suit may be brought”).

15

C. Fourth Amendment Claims Do Not Implicate Heck’s

Goal Of Avoiding An End Run Around Federal

Habeas.

The Court emphasized in Heck that its decision lay “at the

intersection of . . . the Civil Rights Act of 1871 and the federal

habeas corpus statute.” 512 U.S. at 480 (citations omitted); see

also id. at 498 (Souter, J., concurring) (emphasizing need to

“avoid collisions at the intersection of habeas and § 1983”’).

Heck and its progeny are thus concerned chiefly with cases

falling within “the core of habeas corpus.” Dotson, 544 U.S. at

79, 82 (internal quotations omitted). Heck’s “favorable

termination” rule stops inmates from using § 1983 to attack

their state convictions and sentences collaterally, without first

exhausting their state court remedies as they must to seek

federal habeas relief. See Heck, 512 U.S. at 480-481.

Federal habeas relief is not available to challenge the

admission in criminal proceedings of evidence allegedly

obtained in violation of the Fourth Amendment. See Stone v.

Powell, 428 U.S. 465, 482 (1976). It necessarily follows that,

with respect to Fourth Amendment claims, there is no risk of

§ 1983 serving a role reserved for federal habeas.

Ironically, Wallace’s approach might actually allow federal

civil suits to interfere with state criminal proceedings, for it

would require § 1983 courts to decide, at the outset, whether

Heck’s “favorable termination” rule applies in each case. This

would entail determining what effect (if any) a successful

Fourth Amendment challenge would have on the civil

plaintiff s criminal trial, which often would require the § 1983

court to answer questions—e.g., whether any error in admitting

illegally obtained evidence was harmless, or whether authorities

would have discovered the evidence by other means—that may

be central to ongoing state proceedings.

16

Il. Wallace’s Approach to Accrual Is Unworkable.

Wallace’s case-by-case approach, aside from running afoul

of the letter and spirit of Heck, would negatively impact the

administration of justice. First, requiring a fact-specific inquiry

into claim accrual for each Fourth Amendment claim would

defeat the certainty and predictability that this Court has

endeavored to provide in the accrual and limitations context.

Second, a case-by-case approach to accrual would require anew

layer of fact-intensive litigation before § 1983 courts could

address the merits of the plaintiff's civil claims.

A. Time Bars Should Be Certain And Predictable.

The principle that “{rjules should be as simple and

predictable as possible,” Morgan v. South Bend Community

Sch. Corp., 797 F.2d 471, 477 (7th Cir. 1986), has particular

force when it comes to statutes of limitations. Would-be

plaintiffs and defendants need to know with certainty when

potential claims can be filed and when the window for filing

has closed, and clear, predictable rules avoid wasteful “byplay

about limitations and allow[{] the parties and the courts to

concentrate their energies on the merits.” Herman v. City of

Chicago, 870 F.2d 400, 402 (7th Cir. 1989).

This Court has articulated bright-line rules for determining

the proper limitations period in § 1983 cases precisely because

less clear-cut alternatives lacked certainty and predictability.

Until 1985, the statute of limitations in § 1983 cases was the

limitations period assigned by state law to the most closely

analogous claim. See Owens v. Okure, 488 U.S. 235, 239-240

(1989). This was a haphazard and unpredictable standard that

forced parties to guess which limitations period a court would

later decide to use. /d. at 240; Wilson, 471 U.S. at 272 (“The

experience of the courts that have predicated their choice of

correct statute of limitations on an analysis of the particular

facts of each claim demonstrates that their approach inevitably

17

breeds uncertainty and time-consuming _litigation.”).

“(Plaintiffs and defendants often had no idea whether a federal

civil rights claim was barred until a court ruled on their case,”

Wilson, 471 U.S. at 272, and resources were diverted to

“unproductive and ever-increasing litigation” unrelated to the

merits. Jd. at 275 & n.34.

Two decisions, Wilson v. Garcia, supra, and Owens v.

Okure, supra, provided certainty. Wilson requires § 1983 courts

to use the state limitations period applicable to personal injury

torts, and Owens puts an even finer point on the rule by

requiring use of the State’s “general or residual statute for

personal injury actions.” Wilson, 471 U.S. at 276-280; Owens,

488 U.S. at 250. This bright-line rule, which may “be applied

with ease and predictability,” Owens, 488 U.S. at 243, mitigates

the “human” cost of uncertainty that is felt by “all parties”:

“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.” Wilson, 471 U.S. at 275 n.34. The rule,

in short, advances “uniformity, certainty, and the minimization

of unnecessary litigation.” Jd. at 275.

The same principles obtain with respect to the accrual date

for § 1983 suits alleging Fourth Amendment violations. Both

bench and bar would benefit from a rule that would allow

“{pjotential § 1983 plaintiffs and defendants . . . [to] readily

ascertain, with little risk of confusion or unpredictability, the

applicable limitations period in advance of filing a § 1983

action.” Owens, 488 U.S. at 245. Yet Wallace asks the Court

to endorse an unpredictable, case-by-case approach to

accrual—the furthest thing from the “firmly defined, easily

applied rule[]” that should govern limitations inquiries. Wilson,

471 U.S. at 270 (internal quotations omitted). Under the fact-

specific approach Wallace urges, plaintiffs run the risk that they

18

or their lawyers will wrongly predict the accrual date and file

too late. The Seventh Circuit’s bright-line rule puts counsel on

notice that Fourth Amendment claims accrue with the

challenged search or seizure.

For their part, States and municipalities have a strong

interest in timely notice of alleged misconduct by their agents.

If a plaintiff's claims are true, early notice allows for more

effective discipline and other corrective measures. And if the

allegations are unfounded, timely notice affords defendants the

opportunity to gather and preserve evidence needed to defend

against them. An uncertain, case-by-case rule would prompt

some plaintiffs to wait, sometimes many years, before bringing

their Fourth Amendment claims.

B. Wallace’s Case-By-Case Approach Would Foster

Wasteful Litigation.

As noted above, time-bar rules should avoid wasteful

“byplay about limitations and allow[] the parties and the courts

to concentrate their energies on the merits.” Herman, 870 F.2d

at 402. Wallace’s proposed approach would have the opposite

effect. It would require an often fact-intensive, preliminary

round of litigation before a § 1983 court could decide whether

a claim is even timely. The court may have to make this

determination, moreover, many years after the challenged

search or seizure, requiring defendants to marshal evidence that

is stale (at best) and unavailable (at worst).

Covington v. City of New York, 171 F.3d 117 (2d Cir.

1999), illustrates the practical consequences of Wallace’s

approach. Following what Covington later claimed was an

unlawful arrest, he was prosecuted for larceny and other crimes,

before all charges were dismissed by operation of New York’s

speedy trial law. /d. at 120. Covington subsequently filed a

§ 1983 suit alleging false arrest and other constitutional

violations. His false arrest claim was timely if it accrued when

19

his criminal charges were dismissed, but untimely if it accrued

at the time of the challenged arrest. /d. at 119. The district

court dismissed the claim on limitations grounds, finding that

the earlier accrual date applied. /d. at 121. A divided panel of

the Second Circuit reversed. Under the Circuit’s case-by-case

approach to Fourth Amendment claims, the panel held that

accrual under Heck is an “inherently factual” issue that a court

could not decide without “information. . . as to the nature of

the evidence which might have been available against [plaintiff]

in . . . [his criminal] proceedings.” /d. at 123. Accordingly, the

court of appeals concluded, the district court erred when it

disposed of Covington’s claim on summary judgment.

The proceedings that the Second Circuit ordered on remand

would likely require protracted discovery and evidentiary

findings by the district court. Moreover, such proceedings

would place upon the district court an impossible and

totally unrealistic burden. [They] would require that

court to determine and assess the strength of all the

_ evidence available to the state, to determine whether a

motion to suppress evidence or statements based upon

an alleged unlawful arrest or a claimed unreasonable

search should be denied because any one or more of

many exceptions would permit the evidence to be

received, . . . or whether the state had evidence entirely

independent of an arrest or search that would have been

enough to obtain a conviction.

Id. at 128 (Glasser, J., dissenting). Even if there were a full trial

before the criminal charges were dismissed, the § 1983 court

would need to address a raft of questions—for example,

whether the admission of evidence was harmless, or whether

there would have been inevitable discovery, Heck, 512 U.S. at

487 n.7—of an “inherently factual” nature.

20

Under this scheme, § 1983 courts often would have to

undertake this factual inquiry many years after the challenged

search or seizure, and long after the statute of limitations on the

claim has run. But just proving that the claim is untimely will

require defendants to marshal evidence dating from the search

or seizure, with all of the problems of stale and unavailable

evidence that time bars are designed to avoid in the first place.

See Wilson, 471 U.S. at 271 (“Just determinations of fact

cannot be made when, because of the passage of time, the

memories of witnesses have faded or evidence is lost.”).

a * *

Before concluding, it is important to note that the amici

States do not seek to encourage § 1983 courts to address the

merits of Fourth Amendment claims before state criminal and

post-conviction courts have had a full opportunity to do so.

Rather, as Heck itself suggested, if a civil suit is filed before

completion of state criminal proceedings, § 1983 courts should

Stay the action pending completion of the criminal proceedings,

- including any state post-conviction challenges to the plaintiffs

conviction or sentence. See Heck, 512 U.S. at 487 n.8 (“[I]f a

state criminal defendant brings a federal civil-rights lawsuit

during the pendency of his criminal trial, appeal, or state habeas

action, abstention may be an appropriate response to the parallel

State-court proceedings.”) (citing Colorado River Water

Conservation Dist. v. United States, 420 U.S. 800 (1976)); see

also id. at 488 n.9 (preclusion rules may “take account of the

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

review constitutional claims bearing upon state prisoners’

release from custody’); Pet. App. 13 (“Individuals and attorneys

who wish to preserve a claim for false arrest or similar Fourth

Amendment violations should file their civil mghts action at the

time of arrest. It will still be possible, of course, for a district

court to stay any such action until the criminal! proceedings are

concluded, should it conclude in its discretion that a stay would

21

be useful.”). A stay would eliminate any prospect that a § 1983

court will decide the constitutionality of a challenged search or

seizure before the state courts have an opportunity to do so.

CONCLUSION

The judgment of the court of appeals should be affirmed.

Respectfully submitted.

LISA MADIGAN

Attorney General of Illinois

GARY FEINERMAN*

Solicitor General

MICHAEL SCODRO

Deputy Solicitor General

100 West Randolph Street

Chicago, Illinois 6060]

*Counsel of Record (312) 814-3698

OCTOBER 2006

TROY KING

Attorney General of Alabama

11 South Union Street

Montgomery, AL 36130

CARL C. DANBERG

Attorney General of Delaware

Department of Justice

820 North French Street

Wilmington, DE 19801

ROBERT J. SPAGNOLETTI

Attorney General of the District

of Columbia

One Judiciary Square

441 Fourth Street, N.W.

Washington, DC 20001

TOM MILLER

Attorney General of lowa

1305 East Walnut

Des Moines, IA 50319

MIKE MCGRATH

Attorney General of Montana

Department of Justice

P.O. Box 201401

Helena, MT 59620-1401

WAYNE STENEHJEM

Attorney General of North

Dakota

600 East Boulevard Avenue

Bismarck, ND 58505-0040

22

W.A. DREW EDMONDSON

Attorney General of Oklahoma

313 N.E. 21st Street

Oklahoma City, OK 73105-4894

HENRY MCMASTER

Attorney General of South

Carolina

P.O. Box 11549

Columbia, SC 29211-1549

MARK L. SHURTLEFF

Attorney General of Utah

Utah State Capitol Gomplex

East Office Bldg., Suite 320

Salt Lake City, UT 84114-2320

ROB MCKENNA

Attorney General of

Washington

1125 Washington Street SE

P.O. Box 40100

Olympia, WA 98504-0100

PEGGY A. LAUTENSCHLAGER

Attorney General of Wisconsin

State Capitol, Suite 114

Madison, WI 53707-7857