Respondents Brief — Manuel v. City of Joliet, 136 S. Ct. 890 (2016) (No. 14-9496)

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No. 14-9496 LO

INTHE

Supreme Court of the Anited States

ELUAH MANUEL,

Petitioner,

Vv.

CITY OF JOLIET, ILLINOIS, ET AL.,

Respondents.

On Writ of Certiorari

to the United States Court of Appeals

for the Seventh Circuit

BRIEF FOR RESPONDENTS

MATTHEW S. HELLMAN MICHAEL A. SCODRO

ERICA L. Ross Counsel of Record

ZACHARY C. SCHAUF CLIFFORD W. BERLOW

JENNER & BLOCK LLP BRIANA T. SPRICK-SCHUSTER

1099 New York Ave..NW CHRISTOPHER M. SHBEHAN

Washington, DC 20001 JENNER & BLOCK LLP

(202) 639-6000 353 N. Clark Street

Chicago, IL 60654

DAVID A. STRAUSS (312) 222-9350

SARAH M. KONSKY mscodro@jenner.com

JENNER & BLOCK SUPREME

COURT AND APPELLATE MARTIN J. SHANAHAN, JR.

CLINIC AT THE UNIVERSITY CORPORATION COUNSEL

OF CHICAGO LAW SCHOOL CITY OF JOLIET

1111 E. 60th Street 150 West Jefferson Street

Chicago, IL 60637 Joliet, IL 60432

(773) 834-3189 (815) 724-3800

Counsel for Respondents

TABLE OF CONTENTS

yy i A fe Pi, 2 ey | Ee iv

SEG 0 RCE PE FET REDON cewivsseccecsesvssissetaiebonenieeseuuuiaaianaannnal 1

I TRB EIIIEY © eresescansessscvevoceerencuneencbinusvcontasiealaaneinanl 3

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DD. FUORI FING scissinccvticcccentiseinceine 10

CC. FPO BEN sessiecesswicsetisctiecemnecniuaiaenn 12

SUMMARY OF THE ARGUMENT ............... eee 16

RTPI OIEEED scctvviinsstsssnetctsicvastnesnimiiciantmanmmalal 17

I Any Fourth Amendment Claim Petitioner Had

Is Time-Barred, And He Cannot Overcome

That Bar By Labeling His Claim “Malicious

POI cccsetcisctivinticccinsniisadebanteiniialiiaaaannae 17

A. Petitioner Cannot Rely On The Elements

Of Common-Law Malicious Prosecution To

Delay Accrual Of A Fourth Amendment

GRIIEIN cxitcietinoccovcncoscdindeuseacesediecuisdliedeanian aman iaeanal 19

1. Malicious Prosecution’s Favorable-

Termination Element Does Not Apply

To Petitioner’s Fourth Amendment

2. Fourth Amendment Principles Are

Impossible To Square With Other

Elements Of Common-Law Malicious

B. Petitioner Has Not Relied And Cannot

Rely On A Continuing-Violation Theory .......

C. Without A Favorable-Termination

Element Or Continuing Violation,

Petitioner’ & Chafets Faiie ......00cccccccccccscescccessee.

II. After The Prosecution Begins, The Due

Process Clause, Not The Fourth Amendment,

Governs Petitioner’s Claim That His Detention

Was Unduly Prolonged

There Is No Fourth Amendment Claim

For Unduly' Prolonged Detention

The Due Process Clause Is The Sole

Constitutional Home, If One Exists, For

The Court Need Not Determine When

Petitioner Was First Held Pursuant To

The Ongoing Prosecution, But His Initial

Appearance Before A Magistrate Is

Consistent With Nationwide Criminal

Procedure And This Court’s Precedent........

Petitioner’s Counterarguments Fail.............

.33

.49

ill

E. There Are Advantages To Favoring State

Law As A Source Of Malicious Prosecution

TABLE OF AUTHORITIES

Page(s)

CASES

Albright v. Oliver, 510 U.S. 266 (1994)............ passim

Arizona v. Fulminante, 499 U.S. 279 (1991)........... 45

Arizona v. Youngblood, 488 U.S. 51 (1988)............. 42

Ashcroft v. Al-Kidd, 563 U.S. 731 (2011) .............+ 26

Ashcroft v. Iqbal, 556 U.S. 662 (2009) ..........-..2..0008 10

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

0 EREOREES eee Rea aee eee 8

Baker v. McCollan, 443 U.S. 137 (1979). 37, 38, 39, 41

Batiste v. City of Boston, 23 F.3d 394,

1994 WL 164568 (1st Cir. 1994) ............:::cceeeeee 31

Becker v. Kroll, 494 F.3d 904 (10th Cir. 2007)... 31, 32

Bell v. Wolfish, 441 U.S. 520 (1979) ........ 31, 37, 39, 43

Board of Regents of University of New York

v. Tomanio, 446 U.S. 478 (1980) ..............ceeeeeeeees 32

Brady v. Maryland, 373 U.S. 83 (19638)..............0+ 40

Bruington v. Wingate, 7 N.W. 478 (lowa 1880).......26

Brummett v. Camble, 946 F.2d 1178

I gn cpinieimmpenntnmsananss 4,8

Buckley v. Fitzsimmons, 509 U.S. 259 (1993)......... 42

Bump v. Betts, 19 Wend. 421

OBEY. Gate A. SEED on cnceccrcasecsccccccccsoceccscnsscceonee 49

Burns v. Reed, 500 U.S. 478 (1991) ..........-.....c2eee0e 51

California v. Hodari D., 499 U.S. 621 (1991) .......... 30

California v. Trombetta, 467 U.S. 479 (1984).......... 45

Campbell v. Brummett, 504 U.S. 965 (1992)......... 4,5

Coleman v. Alabama, 399 U.S. 1 (1970) ................. 49

Cordova v. City of Albuquerque, 816 F.3d 645

I 6icictnestindenianinescemeapeebsingmian 9, 21, 54

Costello v. United States, 350 U.S. 359 (1956)......... 38

County of Riverside v. McLaughlin, 500 U.S.

St cccrecsdccnscducsusimeettetlinsuitaintapnlaniaieaknivkani 50

Cowell v. Palmer Township, 263 F.3d 286

ao atinbdednennennias 31

Cramer v. Crutchfield, 648 F.2d 943

NE ae 5

CRST Van Expedited, Inc. v. EEOC,

ig SI ai se. Sncentseitcihigmnnepniemnnnsocnsinds 29

Daniels v. Williams, 474 U.S. 327 (1986)......... 4,7, 45

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

(I sds scdicdeeteianetildlceaen dhehiieinidenieatahaditeledplindtcepeanionbiasier 29, 31

Devereaux v. Abbey, 263 F.3d 1070

REE ee 42

Dinsman v. Wilkes, 53 U.S. (12 How.) 390

a cae og ll 3

Dunn v. Tennessee, 697 F.2d 121

ER TS EN TE a a 5

Fortman v. Rottier, 8 Ohio St. 548 (1858) ............... 49

Franks v. Delaware, 438 U.S. 154 (1978)................ 27

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

a a itnniitintsinninerissiinnetendaimsiniasiamanitnpesneniiee 5

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

Glenn v. Lawrence, 117 N.E. 757 (Ill. 1917)............ 26

Glover v. City of Wilmington, 966 F. Supp. 2d

es Ne IE decree tictiniericd ten cesiinatoprnncthieniacccinisionined 54

Graham v. Connor, 490 U.S. 386 (1989)....... 26, 27, 38

Grider v. City of Auburn, 618 F.3d 1240

a nice ainda nsiiddintonenaiononntdientea 8

Gunderson v. Schlueter, 904 F.2d 407

iia a teeleialcdipninatnanonbanneeieaids 5

Haring v. Prosise, 462 U.S. 306 (1983).............. 21, 24

Hartman v. Moore, 547 U.S. 250 (2006)............... 4, 38

Havens Realty Corp. v. Coleman, 455 U.S.

STE RRS, A EL ES eee 31

Heck v. Humphrey, 512 U.S. 477 (1994)......... 7, 22, 23

Hernandez-Cuevas v. Taylor, 723 F.3d 91

ice indiecisenienincenintinbablcenslaalipdoisinesianeniiininas 8

Hudson v. Palmer, 468 U.S. 517 (1984) .................. 45

Julian v. Hanna, 732 F.3d 842 (7th Cir. 2013) ...53, 54

Kaley v. United States, 134 S. Ct. 1090 (2014) ...43, 44

Kalina v. Fletcher, 522 U.S. 118 (1997)................ 4,51

Karim-Panahi v. Los’ Angeles _ Police

Department, 839 F.2d 621 (9th Cir. 1988)............. 5

Kentucky v. King, 563 U.S. 452 (2011).................... 26

Kerr v. Lyford, 171 F.3d 330 (5th Cir. 1999) ............. 9

Kingsland v. City of Miami, 382 F.3d 1220

SN I iiplcnisitiineisininiienigatniibentnnendimindmnniines 8

vii

Klen v. City of Loveland, 661 F.3d 498

REET IT aie 74 Ee 42

Kossler v. Crisanti, 564 F.3d 181

EER a ER 8

Llovet v. City of Chicago, 761 F.3d 759

ee steht ie cilaahnabciaidentinesenes 9, 39, 48

MacNamara v. Hess, 67 F. App’x 139

eg cd ati aeansacnninciesavetiinnth 31

Mahoney v. Kesery, 976 F.2d 1054

REESE ES a ee 5

Malley v. Briggs, 475 U.S. 335 (1986) ...................4. 34

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

NY BIT a ndiendisiniondibssenetunnichiontioadessnetees 31

Memphis Community School District v.

Stachura, 477 U.S. 299 (1986)............cccccceeeeeeeeee 4

Michigan v. Doran, 439 U.S. 282 (1978).................. 36

Miles v. Paul Mook of Ridgeland, Inc., 113

So. 3d 580 (Miss. Ct. App. 2012) ..................0c000. 54

Minneapolis Threshing-Machine Co. v.

Regier, 70 N.W. 934 (Neb. 1897)......................64. 28

Mondragon v. Thompson, 519 F.3d 1078

EERE EES AS 6 9

Mooney v. Holohan, 294 U.S. 108 (1935)............ 41-42

Morales v. Ramirez, 906 F.2d 784

REE TE AE VEILS Se ee 5

Murphy v. Lynn, 118 F.3d 938 (2d Cir. 1997) ........... 8

National Railroad Passenger Corp. ov.

Morgan, 536 U.S. 101 (2002)................ceeeeeeeees 31

vill

Newsome v. McCabe, 256 F.3d 747

Se CEI anita Ulaceananiaablnenidaneniianseiiies 9, 14, 15, 51

North Carolina v. Pearce, 395 U.S. 711 (1969) ....... 42

Owens v. Baltimore City State’s Attorney’s

Office, 767 F.3d 379 (4th Cir. 2014)............00000...... 8

Parratt v. Taylor, 451 U.S. 527 (1981) ................. 7, 53

Paul v. Davis, 424 U.S. 693 (1976) .............c cc eceeeees 45

Perry v. Sindermann, 408 U.S. 593 (1972).............. 41

Rehberg v. Paulk, 132 S. Ct. 1497 (2012)...4, 17, 44, 49

Riley v. Dorton, 115 F.3d 1159 (4th Cir. 1997) ... 31-32

Rothgery v. Gillespie County, 554 U.S. 191

ITI a ivisteardapesignandelsidimnatistcbequibiainemeintctndinoasadenmnetenitin 47

Sami v. United States, 617 F.2d 755

i a cae ciateceenaleetihidniisinivabennnntendibs 5

Savile v. Roberts, 91 Eng. Rep. 1147

ee IE Ocoechcciuniniendelit selec bnnaceeeeipniisicdacsineealinincetion 46

Scott v. United States, 436 U.S. 128 (1978)....26, 27-28

Sherburne v. Rodman, 8 N.W. 414 (Wis. 1881)....... 26

Stancliff v. Palmeter, 18 Ind. 321 (1862)................. 28

Steward v. Gromett, 141 Eng. Rep. 788

(Ct. Common Pleas 1859) .................cccccccceeceeeeees 49

Surprenant v. Rivas, 424 F.3d 5

SIRT Sa 42

Thomas v. Kippermann, 846 F.2d 1009

STINE, STII nic thiciusdanicadacanemannbeantigitinbiiiinndainnnmens 5

United Air Lines, Inc. v. Evans, 431 U.S. 553

I ic i aT a ae 30, 37

United States v. Augenblick, 393 U.S. 348

(RRR EST AE Se PSM ures Pca ee 40

United States v. Bagley, 473 U.S. 667 (1985) .......... 40

United States v. Calderon, 348 U.S. 160 (1954)....... 27

United States v. Goodwin, 457 U.S. 368 (1982) ..40, 42

United States v. Leon, 468 U.S. 897 (1984)... 20, 24, 30

United States v. Salerno, 481 U.S. 739 (1987) ....41, 43

Vasquez v. Hillery, 474 U.S. 254 (1986) ................. 33

Wallace v. Kato, 549 U.S. 384 (2007)............... passim

Whitlock v. Brueggemann, 682 F.3d 567

lcd cc cnginidocibisdptseiatintepsscesucen 42

Wilkins v. DeReyes, 528 F.3d 790

IIIT et cath tndidctaniehinamasubcesebanccesssaindddceniete 8

Wolff v. McDonnell, 418 U.S. 539 (1974).............006. 4]

Zahrey v. Coffey, 221 F.3d 342 (2d Cir. 2000) ......... 42

Zinermon v. Burch, 494 U.S. 113 (1990)................. 53

CONSTITUTIONAL PROVISIONS AND STATUTES

Be I in cancrnciadescsenecsevccnsienessscnapen 20

SPs CN, III SIE oo ccncicsessenssevunssennsosnesseceasonse 36

Br iistitctscenassnencecccocesem 2, 12, 14, 21, 33, 44

Be a is cncissnninsidsedinsinendicinasenianact 11

Se i sccocsscuneetsiocensendoniuccsoesin 11

Be sc ccncccncassncnvencdsnassonentesncnnes 11

ee a cvscecsssecsvncscsrnsssscnesonsocnsenscis 11

I siiicciccstaiinsdiniininnsascusedunmstadiven 11

Fe ED HI ohiciicessevenersenseversteoressnnvsnsonnenes 10

OTHER AUTHORITIES

32 Am. Jur. 2d False Imprisonment (2007)............ 28

3 William Blackstone, Commentaries..................... 45

William J. Cuddihy, The Fourth Amendment:

Origins & Original Meaning (2009) ................... 21

Thomas Y. Davies, Recovering the Original

Fourth Amendment, 98 Mich. L. Rev. 547

I shin cidieaaeubciahiddiniesddaduieibiantagkcuniaessudueakeowebions 21

2 Dan B. Dobbs, The Law of Remedies

a cieeninnn 45

PI I TI siclisdcintnscaneiachendisosmpedonenscssneneves 47

Fowler V. Harper, Malicious Prosecution,

False Imprisonment & Defamation,

yy S&S eee 3

https://ipublic.ill12th.org/SearchPrompt.php........... 11

Yale Kamisar et al., Modern Criminal

Procedure (13th ed. 2012)..............cccceceeee 41, 47, 49

W. Page Keeton et al., Prosser & Keeton on

the Law of Torts (5th ed. 1984) .................ccceeeeeeees 4

3 Wayne R. LaFave, Criminal Procedure

SEER ERE SS ST AS IN 47, 50

1 Sheldon H. Nahmod, Civil Rights & Civil

Liberties Litigation: The Law of Section

I icinsesienisideeanitinedinniiesieniai 4,18, 44

Martin L. Newell, A Treatise on the Law of

Malicious False Imprisonment & Abuse of

Legal Process as Administered in the

Courts of the United States of America

IIT islaalisichsakatihgduabiakestiattaciecainielideesidunmesicceine 25, 28

Note, Groundless Litigation & the Malicious

Prosecution Debates A _ Historical

Analysis, 88 Yale L.J. 1218 (1979) ...................4. 26

Restatement (Second) of Torts (1977) .4, 25, 28, 45, 49

Herbert Stephen, The Law Relating to

Actions for Malicious Prosecution (1889).......... 28

Unif. R. Crim. P. 311(a) (1987).............:cccecceeeeeeeseees 47

CARR Bee CRG, Fr. SE GUID Peciccccescasncsnccnsccnsonsensss 47

INTRODUCTION

This case does not ask the Court to decide whether

police misstatements to obtain an arrest warrant, or to

ratify a warrantless arrest at a Gerstein hearing, are

constitutional violations, or even whether they are

Fourth Amendment violations. The Seventh Circuit’s

decision below does not hold otherwise. It treats such

violations as part and parcel of an unlawful arrest, a

claim that is time-barred here because petitioner

waited more than two years to file his complaint.

Instead, this case is about whether, as petitioner

frames the question, he can assert “a malicious

prosecution claim based upon the Fourth Amendment.”

Pet. i (emphasis added). Petitioner presents the

question that way because his Fourth Amendment

claim is timely only if it includes an element of

common-law malicious prosecution—-the so-called

“favorable termination” element, which delays accrual

of malicious prosecution claims by requiring plaintiffs

to prevail first in the underlying “prosecution.” If

petitioner’s Fourth Amendment challenge is not a

“malicious prosecution” claim, as he has defined that

term from the start of this litigation, then his claim fails

(and the answer to the question presented is “no”),

regardless of which proceedings are governed by the

Fourth Amendment.

The petition for certiorari insisted that this case is

of “national importance” because it asks the Court to

decide whether claims like petitioner’s receive the

benefit of the common law’s delayed-accrual rule, as

courts on petitioner’s side of the split have held in

recognizing a Fourth Amendment claim with the

“malicious prosecution” moniker. Pet. 19-21. This case

is an “ideal vehicle” for reconciling the circuit split, the

petition continued, because, “if Manuel is to have an

opportunity to be compensated for his injuries,” he

needs “[a] malicious prosecution claim,” which “does

not accrue, * * * until the criminal charges giving rise

to the claim terminate in favor of the plaintiff.” Pet. 25.

Indeed, petitioner indicated, the “fate” of his Fourth

Amendment challenge turns on whether he has the

benefit of this common-law favorable-termination

element. Pet. 21.

Yet petitioner’s opening brief fails to discuss the

elements of the Fourth Amendment malicious

prosecution claim he asks the Court to recognize,

including the favorable-termination element he needs

to prevail. Petitioner focuses instead on whether

alleged lies in support of a Gerstein finding are

actionable under the Fourth Amendment—an

argument the Seventh Circuit never rejected, and one

that gets petitioner nowhere. Again, as the question

presented reflects, petitioner needs not just any Fourth

Amendment claim, but rather a Fourth Amendment

malicious prosecution claim, complete with that tort’s

unique delayed-accrual rule.

It is not hard to understand why petitioner’s

opening brief fails even to define the elements of the

malicious prosecution tort he asks the Court to adopt:

The common-law elements petitioner seeks have no

place in a §1983 Fourth Amendment claim. Most

importantly, it makes no sense to condition relief for an

unlawful seizwre on whether the arrestee ultimately

prevails on the merits before or during trial. The

Fourth Amendment protects the guilty and innocent

alike, and a person arrested without probable cause

should not lack a Fourth Amendment remedy

because—while awaiting trial—the state gathers

sufficient evidence to lawfully convict him.

Without a timely Fourth Amendment claim arising

from his arrest and initial probable cause finding,

petitioner could challenge his ongoing pretrial

detention only by challenging the prosecution that

caused it. But the Fourth Amendment does not govern

prosecutions. Accordingly, once the initial seizure and

probable cause finding are off the table (as they are

here because of the time bar), petitioner must look to

due process, not the Fourth Amendment, to vindicate

the claim that his detention was unduly “prolonged.”

Pet’r Br. 13. Otherwise, challenges to grand jury

proceedings, preliminary hearings, and trials all would

become Fourth Amendment claims, provided only that

the plaintiff alleged that these proceedings resulted in

longer detention—including post-conviction

incarceration—without probable cause.

STATEMENT

A. Legal Background

1. Malicious prosecution is a common-law tort with

defined elements. It has long supplied a remedy for

violations of one’s “interest in freedom from

unjustifiable litigation * * * .” Fowler V. Harper,

Malicious Prosecution, False Imprisonment &

Defamation, 15 Tex. L. Rev. 157, 159 (1937); see

Dinsman v. Wilkes, 53 U.S. (12 How.) 390, 402 (1851).

And it has balanced that private interest with the

broader “social interest supporting resort to law” by

requiring plaintiffs to prove a demanding slate of

elements: “1. A criminal proceeding instituted or

continued by the defendant against the plaintiff];] 2.

Termination of the proceeding in favor of the accused|;]

3. Absence of probable cause for the proceeding[;] [and]

4. ‘Malice,’ or a primary purpose other than that of

bringing an offender to justice.” W. Page Keeton et al.,

Prosser & Keeton on the Law of Torts §119 at 871 (5th

ed. 1984); see also Restatement (Second) of Torts §653

(1977).

2. “42 U.S.C. §1983 creates ‘a species of tort

liability in favor of persons who are deprived of rights,

privileges, or immunities secured to them by the

Constitution.”” Memphis Cmty. Sch. Dist. v. Stachura,

477 U.S. 299, 305-06 (1986) (quoting Carey v. Piphus,

435 U.S. 247, 253 (1978) (internal quotation marks

omitted)). But “{njot every common law tort

committed by state or local government officials is

actionable under §1983.” Brummett v. Camble, 946

F.2d 1178, 1183 (5th Cir. 1991); see also Daniels v.

Williams, 474 U.S. 327, 332 (1986); 1 Sheldon H.

Nahmod, Civil Rights & Civil Liberties Litigation: The

Law of Section 1983 §3.63 (4th ed. 2015). So while

courts consider the common law when “identifying * * *

the elements of the cause of action” for constitutional

claims cognizable under §1983, Kalina v. Fletcher, 522

U.S. 118, 123 (1997), “the Court’s precedents have not

mechanically duplicated” the common law. Rehberg v.

Paulk, 182 S. Ct. 1497, 1503 (2012); see Hartman v.

Moore, 547 U.S. 250, 258 (2006) (“[T]Jhe common law is

best understood * * * as a source of inspired examples

than of prefabricated components of [constitutional]

torts.”).

3. For many years, the Court had not addressed

“the availability and contours of a §1983 malicious

prosecution claim,” including “when the cause of action

accrues.” Campbell v. Brummett, 504 U.S. 965, 966

(1992) (White, J., dissenting from denial of certiorari).

Most courts of appeals had held that malicious

prosecution was cognizable as a §1983 tort only if the

tort’s common-law elements were met and “the

defendants’ conduct also infringe{[d)] some [other]

provision of the Constitution or federal law.”

Gunderson v. Schlueter, 904 F.2d 407, 409 (8th Cir.

1990).! Courts also split over the constitutional basis

for a §1983 malicious prosecution claim, with the

majority viewing it as a due process tort, e.g., Gallo v.

City of Phila., 161 F.3d 217, 221 (3d Cir. 1998), and a

minority concluding that it also could implicate Fourth

Amendment interests, see Thomas v. Kippermann, 846

F.2d 1009, 1011 (5th Cir. 1988). There was

“considerable confusion in the Courts of Appeals.”

Campbell, 504 U.S. at 966 (White, J., dissenting from

denial of certiorari).

The plaintiff in Albright v. Oliver brought a §1983

claim alleging that an officer had procured an arrest

warrant without evidence sufficient to establish

probable cause. 510 U.S. 266, 268 (1994). He claimed

that, because the warrant caused his arrest, the

officer’s actions “deprived him of substantive due

process under the Fourteenth Amendment—his

‘liberty interest’—to be free from criminal] prosecution

except upon probable cause.” /d. at 269.

1 Accord Mahoney v. Kesery, 976 F.2d 1054, 1059-60 (7th Cir.

1992); Morales v. Ramirez, 906 F.2d 784, 788 (ist Cir. 1990);

Karim-Panahi v. L.A. Police Dep't, 839 F.2d 621, 624 (9th Cir.

1988); Dunn v. Tenn., 697 F.2d 121, 125-26 (6th Cir. 1982); Cramer

v. Crutchfield, 648 F.2d 943, 945 (4th Cir. 1981); Sami v. United

States, 617 F.2d 755, 773-74 (D.C. Cir. 1979), abrogated by Sosa v.

Alvarez-Machain, 542 U.S. 692 (2004).

The Court rejected Albright’s substantive due

process theory, but for different reasons borne of

different understandings of his claim. A four-Justice

plurality concluded that his claim failed because, in

substance, he challenged the reasonableness of his

arrest, which “constituted a seizure,” making it “the

Fourth Amendment, and not substantive due process,

under which [plaintiff's] claim must be judged.” /d.

But because petitioner had not included a Fourth

Amendment challenge in his petition for certiorari, the

Court “express[ed] no view as to whether petitioner’s

claim would succeed under the Fourth Amendment.”

Id. at 275; see id. (Scalia, J., concurring) (“[HJere * * *

the only deprivation of life, liberty or property, if any,

consisted of petitioner’s pretrial arrest.”).

The plurality considered the claim as one based on

Albright’s arrest, rather than his prosecution, id. at

274, and therefore did not discuss the contours of a

$1983 malicious prosecution claim. In fact, the plurality

touched on malicious prosecution only in a footnote

reporting that “the extent to which a claim of malicious

prosecution is actionable under §1983 is one ‘on which

there is an embarrassing diversity of judicial opinion”

and that “[iJn view of our disposition of this case, it is

evident that substantive due process may not furnish

the constitutional peg on which to hang such a ‘tort.”

Id. at 270 n.4 (citation omitted).

Concurring in the judgment, Justice Kennedy,

joined by Justice Thomas, explained that while he

agreed that “an allegation of arrest without probable

cause must be analyzed under the Fourth Amendment

without reference to more general considerations of

due process[,} * * * [Albright’s] due process claim

concern[ed] not his arrest but instead the malicious

initiation of a baseless criminal prosecution against

him.” Jd. at 281 (Kennedy, J., concurring in the

judgment) (emphasis added). Because of that

disagreement with the plurality over the crux of

Albright’s complaint, Justice Kennedy concluded that

Albright could assert, at most, a §1983 procedural due

process claim for malicious prosecution. Justice

Kennedy further determined that any such claim—to

the extent it was cognizable as a constitutional tort at

all—would fail under Parratt v. Taylor, 451 U.S. 527

(1981), overruled on other grounds by Daniels v.

Williams, 474 U.S. 327 (1986), because state law

provided an adequate remedy, 510 U.S. at 283-84.

4. Six months later, the Court imported into

certain §1983 claims a requirement it analogized to

malicious prosecution’s favorable-termination element.

In Heck v. Humphrey, the Court held that “to recover

damages for * * * actions whose unlawfulness would

render a conviction or sentence invalid, a §1983

plaintiff must prove that the conviction or sentence has

been reversed * * * .” 512 U.S. 477, 486-87 (1994)

(emphasis added). Thus, “[jjust as a cause of action for

malicious prosecution does not accrue until the criminal

proceedings have terminated 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 conviction or

sentence has been invalidated.” Jd. at 489-90 (citations

omitted). The Court later clarified that the Heck rule

does not extend to Fourth Amendment claims for false

arrest, which are concerned not with the outcome of a

prosecution, but with the lawfulness of the initial

seizure. Wallace v. Kato, 549 U.S. 384, 393 (2007).

Indeed, Wallace called any extension of Heck to actions

that “would impugn an anticipated future conviction”

both “bizarre” and “impracticall ].” Jd.

5. Following the Court’s fractured decision in

Albright, the courts of appeals remained splintered

over §1983 malicious prosecution. Most construed

Albright as grounding §1983 malicious prosecution in

the Fourth Amendment, but then divided over how to

square the tort with Fourth Amendment principles.

For example, while all courts of appeals to consider the

issue adopted a favorable-termination element as part

of a Fourth Amendment malicious prosecution claim,

many did so because it was an element at common law,

e.g., Owens v. Balt. City State’s Atty’s Office, 767 F.3d

379, 388-92 (4th Cir. 2014), cert. denied, 135 S. Ct. 1893

(2015);2 others because of Heck, e.g., Kossler v.

Crisanti, 564 F.3d 181, 187 (3d Cir. 2009); and at least

one on the theory that the favorable-termination

element, like all other elements of §1983 malicious

prosecution, applies so long as the relevant state-law

malicious prosecution tort includes it, see Murphy v.

Lynn, 118 F.3d 988, 947 (2d Cir. 1997). Courts also

divided over the common-law element of malice, with

some holding that malicious prosecution does not

require proof of malice, e.g., Hernandez-Cuevas v.

Taylor, 723 F.3d 91, 100-01 (1st Cir. 2013), and others

reading that common-law element into the Fourth

Amendment claim, e.g., Grider v. City of Auburn, 618

F.3d 1240, 1256 & n.24 (11th Cir. 2010).

2 Accord Wilkins v. DeReyes, 528 F.3d 790, 801 n.6 (10th Cir.

2008); Kingsland v. City of Miami, 382 F.3d 1220, 1234 (11th Cir.

2004); Awabdy v. City of Adelanto, 368 F 3d 1062, 1066-68 (9th Cir.

2004); Brummett, 946 F.2d at 1183.

For its part, the Seventh Circuit recognizes a §1983

Fourth Amendment tort for unlawful seizure that

accrues at the time of the initial seizure—whether at

the moment of arrest or, at the latest, when the

defendant is “arraign[ed]” or makes an “initial

appearance in court.” Llovet v. City of Chi., 761 F.3d

759, 763 (7th Cir. 2014) (internal quotation marks

omitted), cert. denied, 135 S. Ct. 1185 (2015). But the

court declines to call this claim “malicious prosecution”

or to read elements of the common-law tort—including

the favorable-termination element—into it. So in the

Seventh Circuit, “(rjelabeling a fourth amendment

claim as ‘malicious prosecution’ [does] not extend the

statute of limitations.” Newsome v. McCabe, 256 F.3d

747, 751 (7th Cir. 2001).

If the malicious initiation and maintenance of a

prosecution itself violates the Constitution, then the

Seventh Circuit holds that it violates procedural due

process, not the Fourth Amendment. Newsome, 256

F.3d at 750-51; accord Mondragon v. Thompson, 519

F.3d 1078, 1083 (10th Cir. 2008) (McConnell, J.);

Cordova v. City of Albuquerque, 816 F.3d 645, 661-65

(10th Cir. 2016) (Gorsuch, J., concurring in the

judgment); Kerr v. Lyford, 171 F.3d 330, 342-43 (5th

Cir. 1999) (Jones, J., specially concurring with Garza,

J.), abrogated by Castellano v. Fragozo, 352 F.3d 939

(5th Cir. 2008). Embracing Justice Kennedy’s

concurrence in Albright, the Seventh Circuit further

holds that under Parratt, there is no deprivation of

procedural due process so long as the state provides an

adequate remedy for malicious prosecution, as most

states do. Newsome, 256 F.3d at 750-51.

B. Factual Background

1. On March 18, 2011, petitioner Elijah Manuel was

a passenger in a car his brother was driving. First.

Am. Compl. 9920-22 (J.A. 62).8 Respondent police

officers for the City of Joliet pulled the vehicle over

after observing it fail to signal a turn. J.A. 90. A

patdown of petitioner revealed a bottle of pills, and the

officers arrested petitioner for possession of ecstasy, a

controlled substance. First Am. Compl. 4421, 35, 38,

115 (J.A. 62, 63, 64, 69); J.A. 91-92.

Petitioner alleges that the bottle contained only

vitamins, and that the officers knew this because both a

field test at the scene, and a subsequent test at the

police station, revealed that the pills did not contain a

controlled substance. /d. 4112-114, 121-122 (J.A. 69-

70). The police reports nonetheless stated that the

officers knew from their training and experience that

the pills were ecstasy, and that an evidence technician’s

test confirmed that conclusion. J.A. 91-92.

2. Later that day, one of the respondent officers

swore out a criminal complaint charging petitioner with

unlawful possession of ecstasy in violation of the Illinois

Controlled Substances Act, 720 ILCS 570/402(c). See

J.A. 52-53.

3. As required by Illinois law, petitioner was

brought before a court by videoconference for a

3 The district court granted respondents’ motion to dismiss,

and the Seventh Circuit affirmed that ruling. Accordingly, the

factual allegations in petitioner’s complaint (which respondents

dispute) must be taken as true at this point in the proceedings. _

E.g., Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

“custody hearing” that same day, March 18, 2011.4 See

725 ILCS §5/109-1(a). Petitioner waived the

opportunity, at the hearing, to dispute that the officers’

allegations satisfied probable cause for arrest. See

Gerstein v. Pugh, 420 U.S. 108, 113-14 (1975) (requiring

judicial determination of probable cause following

warrantless arrest, but holding that such proceedings

may be non-adversarial). Also at petitioner’s first

appearance, the charges against him and his rights

were explained, counsel was appointed, and bail was

set. See 725 ILCS §5/109-1(b)(1)(2), (4). That same

day, petitioner was transferred from the respondent

officers’ custody to the Will County Adult Detention

Facility. First Am. Compl. 4132 (J.A. 72).

4. On March 31, 2011, respondent Officer Gruber

testified to the positive test result before a grand jury,

which returned an indictment for unlawful possession

of a controlled substance. J.A. 93—96; id. at 54—55; see

725 ILCS §5/109-3.1(b) (providing that individuals

charged with felonies must receive either preliminary

hearing or indictment within 30 days of arrest).

Petitioner was arraigned on the indictment on April 8,

2011. Pet. App. A2.

5.On April 1, 2011—between petitioner’s

indictment and arraignment on the indictment—a

laboratory report issued stating that the pills were not

a controlled substance. J.A. 51. The prosecution nolle

prossed the charges against petitioner on May 4, 2011,

4 This description relies on a state-court docket sheet that, as

petitioner notes, is not part of the record, see Pet’r Br. 4-5 & n.3,

but is publicly available at the Will County Circuit Court website

(https://ipublic.ill2th.org/SearchPrompt.php) by clicking on the

“Events” tab under case number 11CF 00546.

and he was released from custody the next day. J.A.

48; Pet. App. A2.

C. Procedural History

1. On April 22, 2013—more than two years after his

arrest, first appearance, indictment, and arraignment—

petitioner filed a pro se complaint against the

respondent officers and City of Joliet under §1983.

Petitioner asserted claims of, inter alia, “wrongful and

malicious” arrest and false imprisonment. J.A. 30, 35—

37. He also alleged “malicious prosecution”—that one

of the respondent officers “executed an erroneous and

false complaint”; that “[aJs a result of this false

complaint a return of an indictment was file[d}) upon the

plaintiff * * * without probable cause”; and that

respondents “could have during the duration of

plaintiff's false imprisonment, ascertained that plaintiff

was being falsely imprisoned had [they] exercised

reasonable diligence in performing [their] duties and

not repeatedly refused to make reasonable and

necessary factual investigation of the charges made

against the plaintiff.” J.A. 37-38.

2. The district court appointed counsel, who filed

an amended complaint. J.A. 2-3, 58. This complaint

similarly alleged, inter alia, that respondents arrested

him without probable cause and engaged in malicious

prosecution by “submitting false charges as contained

in the criminal complaint and indictment” and “fail[ing]

to take any steps to cause [petitioner] to be released

from police custody” “due to the lack of probable cause

supporting his arrest and continued detention.” First

Am. Compl. 94153, 156, 165, 173, 175, 179, 199-201 (J.A.

74-75, 77, 79-80, 83-84).5

3. Respondents moved to dismiss on statute-of-

limitations grounds, arguing that Illinois’s two-year

limit for personal-injury torts barred petitioner’s

claims. Mem. of Law in Support of Mot. to Dismiss at 3,

No. 1:13-ev-03022 (N.D. Ill. Dec. 4, 2013), ECF No. 30-1

(J.A. 6). Petitioner responded that, notwithstanding

the two-year time bar, he “should have an actionable

Section 1983 claim for malicious prosecution through

the Fourth Amendment” because “[a] malicious

prosecution claim does not accrue until the underlying

proceedings terminate in favor of the plaintiff,” making

his claim timely. Pl.’s Modified Resp. in Opp’n to Defs.’

12(b)(6) Mot. to Dismiss at 4, No. 1:13-cv-03022 (N.D.

Ill. Feb. 7, 2014), ECF No. 41 (J.A. 9).

The district court granted respondents’ motions to

dismiss. J.A. 10 (ECF No. 44); J.A. 97-99. The court

dismissed all of petitioner’s claims as time-barred,

except his Fourth Amendment malicious prosecution

claim, which would survive if it had a favorable-

termination element, as petitioner alleged. J.A. 98.

With respect to that claim, the court held that a

“malicious prosecution” claim, as petitioner defined it,

may not be brought under the Fourth Amendment, but

instead arises under the Due Process Clause only if

5 Although petitioner alleged that respondents violated his

due process rights by “submitting false charges as contained in the

criminal complaint and indictment” and “falsely imprisoning [him]

beyond a preliminary hearing,” First Am. Compl. 4165 (J.A. 77),

petitioner did not press his due process claim in the district court

or the Seventh Circuit and does not pursue it here. See J.A. 98;

Pet i.

state law provides no adequate remedy. /d.; see

Newsome, 256 F.3d at 750-52. Because Illinois law

provides an adequate malicious prosecution remedy,

the court dismissed the complaint. J.A. 99.

4. Petitioner appealed only the dismissal of his

Fourth Amendment “malicious prosecution” claim, once

again insisting that this claim was timely because “a

malicious prosecution claim does not accrue until the

underlying proceedings terminate in favor of the

plaintiff.” Br. of Pl.-Appellant, Elijah Manuel at 17, No.

14-1581 (7th Cir. June 27, 2014), ECF No. 16 WJ.A. 21).

Respondents countered that the Seventh Circuit should

not abandon its case law, and that any §1983 claim is

time-barred under Illinois’s two-year limitations

period. Br. of Defs.-Appellees at 5-9, No. 14-1581 (7th

Cir. Aug. 18, 2014), ECF No. 25 (J.A. 22). In reply,

petitioner again emphasized that “if [his] Amended

Complaint is to survive a motion to dismiss, [he] must

turn to the Fourth Amendment as a means to bring a

Section 1983 malicious prosecution claim,” which “does

not accrue until the proceedings terminate in favor of

the plaintiff.” Reply Br. of Pl.-Appellant, Elijah

Manuel at 3, 9, No. 14-1581 (7th Cir. Sept. 2, 2014), ECF

No. 27 (J.A. 23).

The Seventh Circuit affirmed. J.A. 100-05. The

court explained that “if Manuel has a Fourth

Amendment claim * * * it would have stemmed from

his arrest on March 18, 2011, which he would have had

to challenge within two years, * * * but he did not sue

until April 10, 2013.” J.A. 103. The court further

indicated that under its’ precedent, following

arraignment, any “malicious prosecution” claim is

governed by the Due Process Clause, and that claim is

available only if—unlike in Illinois—state law fails to

provide a similar cause of action. J.A. 102-03

(discussing Newsome, 256 F.3d at 750-52). The court

explained that, while Newsome did not preclude Fourth

Amendment claims “generally” (citing, inter alia,

McCullach v. Gadert, 344 F.3d 655 (7th Cir. 2003),

which “recogniz[ed] a Fourth Amendment wrongful-

arrest claim against an officer who allegedly gave false

information in an incident report and at a preliminary

hearing”), “any Fourth Amendment claim that

petitioner might bring is time-barred.” J.A. 103.

5. Petitioner sought certiorari: review on the

question of “whether an_ individual’s Fourth

Amendment right to be free from unreasonable seizure

continues beyond legal process so as to allow a

malicious prosecution claim based upon the Fourth

Amendment.” Pet. i. Petitioner argued that the

question was one of “national importance” because,

unlike claims for false arrest, “malicious prosecution

claims purvey a forgiving statute of limitations as the

claims do not accrue until the charges terminate in the

plaintiffs favor.” Pet. 21 (internal quotation marks

omitted); see also Pet. 25. And petitioner assured the

Court that his case presented this issue squarely, for he

needs malicious prosecution’s common-law favorable-

termination element for his claim to survive: “In the

present case, the availability of a malicious prosecution

claim and its statute of limitations will determine

Manuel’s fate.” Pet. 21.

Respondents opposed certiorari, again arguing that

any §1983 malicious prosecution claim would be time-

barred. Br. in Opp. 4—5. In reply, petitioner reaffirmed

his reliance on the favorable-termination element of

common-law malicious prosecution. Pet. Reply 1-2.

6. This Court granted Manuel’s petition on January

15, 2016.

SUMMARY OF THE ARGUMENT

1. The Court should affirm the judgment below

because the Fourth Amendment is incompatible with

the common-law elements of malicious prosecution.

That includes the favorable-termination element

petitioner admittedly needs to render his claim timely.

Indeed, requiring plaintiffs claiming an unlawful

seizure to succeed on the merits of the underlying

prosecution would make little sense, for the Fourth

Amendment is concerned not with the outcome of a

prosecution, but with the legality of searches and

seizures. Importing a successful-outcome element into

the Fourth Amendment (or expanding Heck to read

this element into §1983 in this context) would withhold

a Fourth Amendment remedy from victims of wrongful

seizures who later are legitimately convicted.

2. Without a timely challenge to his initial arrest

and probable cause finding, petitioner could put an end

to his ongoing detention only by attacking the

prosecution for which he was detained. That is not a

Fourth Amendment issue. Due process alone governs

claims, like petitioner’s, alleging perversion of the

procedures designed to determine whether the

prosecution should continue and whether the defendant

must remain detained during it.

ARGUMENT

I. Any Fourth Amendment Claim Petitioner Had

Is Time-Barred, And He Cannot Overcome That

Bar By Labeling His Claim “Malicious

Prosecution.”

It is common ground that if petitioner’s allegations

are true, he could have brought a Fourth Amendment

claim based on his allegedly unlawful arrest (a Fourth

Amendment “seizure”), which occurred on March 18,

2011. As the Seventh Circuit recognized, however,

petitioner waited more than two years to file his

complaint. J.A. 103. In fact, the only affirmative act

that allegedly took place after March 18, 2011 was

Officer Gruber’s March 31, 2011 testimony before the

grand jury. But that testimony, too, occurred more

than two years before petitioner filed his suit, see J.A.

93-96, and as the United States recognizes, Officer

Gruber is immunized for that testimony in any event.

See Br. for the United States as Amicus Curiae

Supporting Petitioner at 30 (“U.S. Br.”); Rehberg, 132

S. Ct. 1497. Thus, as petitioner concedes, his Fourth

Amendment claim is timely only if it benefits from a

special rule delaying accrual. See Pet. 21, 25.

Petitioner’s need for delayed accrual is ‘why he

asked this Court to recognize a Fourth Amendment

claim of “malicious prosecution.” Most courts of

appeals to recognize such a claim have done so only by

incorporating the common-law elements of malicious

prosecution into §1983 wholesale, including the

favorable-termination element. See supra p. 8.

Accordingly, petitioner asks not merely whether some

Fourth Amendment right “continues beyond legal

process,” Pet’r Br. i, but whether it does so “to allow a

malicious prosecution claim based upon the Fourth

Amendment.” Jd. (emphasis added); see also Pet. 21

(conceding that petitioner needs malicious prosecution’s

favorable accrual rule for his claim to be timely); Pet’r

Br. 35 (citing the “rich history” of malicious prosecution

“at common law”).

That is a question the Albright plurality never

answered, for it did not purport to address the

existence of a constitutional claim for malicious

prosecution, much less its elements. Albright, 510 U.S.

at 270 n.4; Nahmod, supra, §3.66; see supra p. 6. The

Seventh Circuit’s resolution of this question is correct:

There is no Fourth Amendment claim with the

common-law elements of malicious prosecution. Nor

does Heck append a favorable-termination element via

§1983 where, as here, petitioner does not challenge a

conviction or sentence.

In straining to avoid the consequences of his own

delay, petitioner would deprive others of the Fourth

Amendment protections he seeks. Many people may be

detained without probable cause based on an

improperly-issued warrant or erroneous Gerstein

finding in violation of the Fourth Amendment, only to

be convicted constitutionally after prosecutors gather

more evidence. Petitioner’s favorable-termination rule

would strip these people of their right to recover under

§1983, no matter how patently unlawful the defendants’

alleged conduct. And his rule would do so without any

justification: The Fourth Amendment is concerned with

searches and seizures, not prosecutions. So petitioner

gets it backwards when he asserts that “[aJllowing

Fourth Amendment malicious prosecution claims to be

brought under Section 1983 serves * * * that statute’s

time-honored goals.” Pet’r Br. 33. In fact, reading

malicious prosecution into the Fourth Amendment

would subvert both §1983 and the Fourth Amendment.

A. Petitioner Cannot Rely On The

Elements Of Common-Law Malicious

Prosecution To Delay Accrual Of A

Fourth Amendment Claim.

Petitioner and courts on his side of the circuit split

attempt to delay accrual by incorporating into a Fourth

Amendment claim the elements of common-law

malicious prosecution. See supra p. 8. So long as the

cause of action is called “malicious prosecution,” the

theory seems to run, it automatically embraces these

elements. See Pet’r Br. 35 (“The tort of malicious

prosecution has a rich history at common law * * * *

[slo permitting such suits under Section 1983 breaks no

new ground.”).

But malicious prosecution’s elements do not fit a

Fourth Amendment claim. These elements are over-

inclusive because favorable termination and malice, two

of the four common-law elements, are irreconcilable

with bedrock Fourth Amencment law. At the same

time, they are under-inclusive because, as the United

States acknowledges, malicious prosecution at common

law “does not have seizure as an element,” although it

is “a necessary component of a Fourth Amendment

claim.” U.S. Br. 24 n.15.

In short, any Fourth Amendment “malicious

prosecution” claim petitioner could bring would share

little with its namesake. And without the common

law’s favorable-termination element, which is

impossible to square with the Fourth Amendment,

petitioner’s claim is untimely. For that reason alone,

the answer to the question presented is “no”—the

Fourth Amendment does not permit a “malicious

prosecution” claim of the sort petitioner requires.

1. Malicious Prosecution’s Favorable-

Termination Element Does Not

Apply To Petitioner’s Fourth

Amendment Claim.

1. The favorable-termination element makes sense

in the context of a common-law malicious prosecution

claim, which is concerned with the legitimacy of the

prosecution itself. But it has no place under the Fourth

Amendment, which protects against “unreasonable

searches and seizures” and “warrants” issued without

“probable cause.” U.S. Const. amend. IV. The

Amendment says nothing about the standards for

initiating or maintaining a prosecution, and it is

agnostic as to how that prosecution ends.

As the Court explained in United States v. Leon,

“{t]he wrong condemned by the [Fourth] Amendment

is fully accomplished by the unlawful search or seizure

itself.” 468 U.S. 897, 906 (1984) (internal quotation

marks omitted). That the individual is subsequently

prosecuted, and possibly convicted, “‘work[s] no new

Fourth Amendment wrong.” /d. (quoting United

States v. Calandra, 414 U.S. 338, 354 (1974)).

Gerstein thus made clear that the Fourth

Amendment does not “entitle[] [the accused] to judicial

oversight or review of the decision to prosecute.” 420

U.S. at 119; U.S. Br. 8 (“The Fourth Amendment does

not govern the decision to pursue criminal charges.”);

see U.S. Br. 12. Albright likewise made this plain, for

both the plurality and Justices Kennedy and Thomas

agreed that the Fourth Amendment provides no

standard for reviewing the initiation of a prosecution.

See Albright, 510 U.S. at 274 (plurality op.); id. at 282-

83 (Kennedy, J., concurring).

The Fourth Amendment’s history teaches the same

lesson. The Amendment was “originally understood

[as] focused on restraining police action before the

invocation of judicial processes.” Cordova, 816 F.3d at

662 (Gorsuch, J., concurring in the judgment). It aimed

to safeguard the same interests long protected by

common-law trespass torts such as_ residence

trespasses and false imprisonment. See, e.g., William J.

Cuddihy, The Fourth Amendment: Origins & Original

Meaning 602-1791, 440-45 (2009); Thomas Y. Davies,

Recovering the Original Fourth Amendment, 98 Mich.

L. Rev. 547, 576-77, 588-89 (1999),

Just as the Fourth Amendment does not govern

the decision to prosecute, a Fourth Amendment claim

does not depend on the prosecution’s outcome. On the

one hand, an “illegal arrest or detention does not void a

subsequent conviction.” Gerstein, 420 U.S. at 119. And

on the other, an arrestee who later is properly

convicted may recover under §1983 for earlier Fourth

Amendment violations. The Court in Haring v. Prosise

thus held that a prisoner’s guilty plea to possessing

items found in a search did not bar his action to recover

on the theory that the search was unlawful. 462 U.S.

306 (1983). The conviction was “simply irrelevant to

the legality of the search under the Fourth Amendment

or to Prosise’s right to compensation from state officials

under §1983.” Id. at 316. This is because, as the Court

recognized, a Fourth Amendment violation becomes no

less unlawful if the defendant is later convicted.

Malicious prosecution’s favorable-termination

element thus is impossible to square with the Fourth

Amendment.

2. While petitioner and several courts of appeals

rely directly on common-law malicious prosecution to

delay accrual of a Fourth Amendment claim, see supra

p. 8, the United States instead invokes Heck in

advocating for that result, see U.S. Br. 24-25 n.16. But

Heck does not apply to Fourth Amendment claims that

do not challenge any existing conviction or sentence.

In Heck, the Court analogized to the common law

of malicious prosecution to hold that where a criminal

defendant’s successful §1983 suit would “necessarily

imply the invalidity of’ an existing “conviction or

sentence * * *, the complaint must be dismissed unless

the plaintiff can demonstrate that the conviction or

sentence has already been invalidated.” 512 U.S. at 487

(emphasis added). The Court took care to limit this

rule to instances where §1983 plaintiffs challenged a

conviction or sentence: “We hold that, in order to

recover damages for allegedly unconstitutional

conviction or imprisonment, or for other harm caused

by actions whose unlawfulness would render a

conviction or sentence invalid, a §1983 plaintiff must

prove that the conviction or sentence has been

reversed” or otherwise set aside. /d. at 486-87.

The Court, however, instructed that this favorable-

termination requirement generally would not apply to

Fourth Amendment claims: “[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.” Jd. at 487

n.7. The favorable-termination requirement does not

apply to such claims because, “even if successful, [they]

would not necessarily imply that the plaintiffs

conviction was unlawful.” /d.

In Wallace, the Court turned that caveat into a

square holding. The petitioner argued, like the United

States here, that Heck’s “favorable termination”

requirement delayed accrual of his Fourth Amendment

unlawful-arrest claim under §1983 “until the State

dropped its charges.” Wallace, 549 U.S. at 392. The

Court rejected that argument. It reaffirmed that Heck

applies only in the face of “an ‘outstanding criminal

judgment” or “an extant conviction,” and does not

apply to claims that an “initial Fourth Amendment

violation set the wheels in motion” for a subsequent

detention or conviction that has yet to occur. Jd. at 393,

391. That is because, again, the success of the Fourth

Amendment claim does not turn on the termination of

those proceedings, favorable or otherwise. See id.

Accordingly, while the United States asserts in a

footnote that Heck should apply to petitioner’s Fourth

Amendment claim for “unlawful pretrial detention

pursuant to legal process,” U.S. Br. 24-25 n.16, that

argument contravenes both Heck and Wallace. And

that cursory footnote—without which the United

States’ brief would not support reversal of the

judgment below, for petitioner’s claim would be time-

barred—is_ virtually without reasoning. The

government explains why a favorable-termination

requirement makes sense for a _ garden-variety

“malicious prosecution” claim, id., but it says nothing

about the only question that matters here: Why that

requirement is appropriate for a Fourth Amendment

claim that, by definition, is concerned not with the

result of a criminal proceeding, but with whether the

initial search or seizure was supported by probable

cause.

3. Moreover, appending a favorable-termination

element or expanding Heck’s rule beyond its stated

limits would uwnder-serve the Fourth Amendment’s

protections—available to guilty and innocent alike, see

Haring, 462 U.S. at 316—-against unlawful searches and

seizures. If, as petitioner and his amici contend, a

Fourth Amendment claim exists based on an improper

warrant or Gerstein finding only when the civil plaintiff

can show a favorable termination of the criminal

proceedings against him, the Fourth Amendment

would exclude from its protections individuals seized

without probable cause but ultimately tried and

convicted based on other, constitutionally acquired

evidence. See Br. of Albert W. Alschuler as Amicus

Curiae in Support of Petitioner 35-37 (“Alschuler Br.”).

This would permit officers to arrest and detain without

probable cause in the hopes of later gathering evidence

justifying a prosecution and, ultimately, a guilty plea or

conviction.

That is not how the Fourth Amendment or §1983

should work. From both a deterrence and a remedial

perspective, individuals seized without probable cause

should be able to recover for Fourth Amendment

violations, regardless of whether they are ultimately

convicted of a crime, so long as they bring their claims

in a timely manner. Cf. Leon, 468 U.S. at 906-08

(explaining deterrence-based policy behind

exclusionary rule). This is far more consistent with

§1983’s “basic purpose’ * * * ‘to compensate persons for

injuries caused by the deprivation of rights,” Pet’r Br.

33 (quoting Carey, 435 U.S. at 254-55), than a rule

denying compensation to an entire class of Fourth

Amendment claimants in exchange for the delayed-

accrual rule this petitioner needs to save his late-filed

claim.

2. Fourth Amendment Principles Are

Impossible To Square With Other

Elements Of Common-Law

Malicious Prosecution.

Malicious prosecution does not fit the Fourth

Amendment for other reasons, too. That matters

because, again, many courts recognizing a malicious

prosecution claim under the Fourth Amendment adopt

a favorable-termination element only as part of the

wholesale incorporation of the common-law tort, as

petitioner appears to advocate. See supra p. 8. But

that approach badly mangles constitutional principle.

The key common-law element of “malice” has no

Fourth Amendment basis, and conversely, the Fourth

Amendment’s seizure requirement has no place in

common-law malicious prosecution. For this reason,

too, the strange creature petitioner conjures to render

his claim timely—“‘Fourth Amendment malicious

prosecution”—does not exist.

1. At common law, malice (as the tort’s name

suggests) was an “indispensable” and “foundation{al]”

element of a malicious prosecution claim, and it remains

so today. See, e.g., Martin L. Newell, A Treatise on the

Law of Malicious False Imprisonment & the Abuse of

Legal Process as Administered in the Courts of the

United States of America 7 (1892) (citing state cases);

Restatement (Second) of Torts §668. The element dates

back to at least the late thirteenth century, when the

writ of conspiracy emerged to address the problem of

individuals encouraging one another to falsely and

“maliciously” “indict” a victim. See Note, Groundless

Litigation & the Malicious Prosecution Debate: A

Historical Analysis, 88 Yale L.J. 1218, 1224-25 &

nn.52-53 (1979). Malice developed as a central

component of malicious prosecution because this

element, by requiring a subjective inquiry and

improper intent, ensures that tort liability will not

deter legitimate law enforcement activity. See, e.g.,

Glenn v. Lawrence, 117 N.E. 757, 759 (Ill. 1917);

Sherburne v. Rodman, 8 N.W. 414, 414-15 (Wis. 1881);

Bruington v. Wingate, 7 N.W. 478, 479 (Iowa 1880).

2. Yet as petitioner’s own amici concede, a

“subjective inquiry into malice * * * is foreign to

Fourth Amendment analysis.” Br. for the Nat’] Ass’n

of Criminal Defense Lawyers as Amicus Curiae in

Support of Petitioner 22. That is because the question

under the Fourth Amendment is “whether the officers’

actions are ‘objectively reasonable’ in light of the facts

and circumstances confronting them, without regard to

their underlying intent or motivation.” E.g., Graham v.

Connor, 490 U.S. 386, 397 (1989) (citing Scott v. United

States, 436 U.S. 128, 137-389 (1978), and Terry v. Ohio,

392 U.S. 1, 21 (1968)); Kentucky v. King, 563 U.S. 452,

464 (2011). “{(TJhe Fourth Amendment regulates

conduct rather than thoughts,” making an individual

officer’s subjective intent irrelevant. Ashcroft v. Al-

Kidd, 563 U.S. 731, 736 (2011).

Indeed, this Court has rejected use of “malice,”

specifically, in Fourth Amendment cases. See Graham,

490 U.S. at 399. As the Court explained, using a

“‘malicious and sadistic” standard would “put[] in issue

the subjective motivations of the individual officers,

which our prior cases make clear has no bearing on

whether a particular seizure is ‘unreasonable’ under the

Fourth Amendment.” /d. at 397 (citation omitted); see

also id. at 399 (“The Fourth Amendment inquiry is one

of ‘objective reasonableness’ under the circumstances,

and subjective concepts like ‘malice’ and ‘sadism’ have

no proper place in that inquiry.” (emphasis added)).

3. Perhaps recognizing the inconsistency between

malice and the Fourth Amendment, petitioner ignores

this element. Meanwhile, the United States contends

that “(t]he intent required for a Section 1983 Fourth

Amendment claim of unlawful pretrial detention is not

directly akin to the common-law element of ‘malice.””

U.S. Br. 25-26 n.17 (emphasis added). Instead, on this

view, a plaintiff must “establish that the defendant

officers acted with intent to deceive or with reckless

disregard of the absence of probable cause.” Jd. at 25.

But this argument not only abandons the common

law; it also runs afoul of the Fourth Amendment. The

Fourth Amendment search-or-seizure inquiry is

objective, while the government’s “intent to deceive”

and “reckless disregard” standard is not. Nor does

Franks v. Delaware, 438 U.S. 154 (1978), support the

government’s position. See U.S. Br. 27. Franks held

that, to obtain a hearing, a criminal defendant moving

to suppress evidence seized pursuant to a warrant must

show that the supporting affidavit contained deliberate

or reckless falsehoods essential to the finding of

probable cause. Jd. at 171-72. But that standard arises

“from [the] language of the Warrant Clause itself,

which surely takes the affiant’s good faith as its

premise.” United States v. Calderon, 348 U.S. 160, 164

(1954). Franks says nothing about the Search and

Seizure Clause, which emphasizes “reasonableness”

and forecloses a subjective inquiry. See, e.g., Scott v.

United States, 436 U.S. 128, 137 (1978) (discussing

Terry, 392 U.S. at 21-22).

4. Moreover, a common-law malicious prosecution

claim does not require the plaintiff to suffer a seizure

within the meaning of the Fourth Amendment. See

U.S. Br. 24 n.15. Indeed, unlike a claim for false arrest

or false imprisonment, malicious prosecution does not

care whether the plaintiff was seized.

At common law, “the appropriate form of action for

imposing a confinement was trespass for false

imprisonment,” Restatement (Second) of Torts §35 cmt.

a, and the damages were (and are) “those that flow[ed]

from the detention” itself. 32 Am. Jur. 2d False

Imprisonment §135 (2007). By contrast, “[mlJalicious

prosecution [was] frequently classified with slander and

libel as an injury to the reputation”; its concern with

detention was secondary at best. Minneapolis

Threshing-Mach. Co. v. Regier, 70 N.W. 934, 936 (Neb.

1897); see, e.g., Stancliff v. Palmeter, 18 Ind. 321, 324—

25 (1862); see also Restatement (Second) of Torts §670.

If the plaintiff happens to have been arrested or

imprisoned during the course of proceedings, he also

may seek “{s]pecial [djamages” for his resulting

injuries. Restatement (Second) of Torts 8671.

Detention is thus one potential byproduct of malicious

prosecution, but not one that is central, much less

necessary, to the tort itself. See, e.g., Newell, swpra, at

16; Herbert Stephen, The Law Relating to Actions for

Malicious Prosecution 117 (1889).

In short, malicious prosecution’s elements do not fit

with a Fourth Amendment claim, which concerns

search or seizure, not prosecution and conviction, and

which is unconcerned with a defendant’s subjective

mental state. Petitioner thus cannot achieve the

delayed accrual he needs by incorporating the common-

law elements into a Fourth Amendment claim under

§1983.

B. Petitioner Has Not Relied And Cannot

Rely On A_ Continuing-Violation

Theory.

1. Nor can petitioner save his untimely claim by

contending that a seizure constitutes a continuing

Fourth Amendment violation that delays his claim’s

accrual—an argument that petitioner not only failed to

make earlier, but would be contrary to his prior

representations to this Court.§

To be sure, some members of the Court have

suggested that a Fourth Amendment malicious

prosecution claim might accrue years after the alleged

unlawful search or seizure because the defendant-

turned-plaintiff remains “seized” for Fourth

Amendment purposes so long as the prosecution

against him is pending. Albright, 510 U.S. at 277-79

(Ginsburg, J., concurring); id. at 307 (Stevens, J.,

dissenting). This Court’s holdings, however, are to the

contrary. When a plaintiff claims to have suffered from

a discrete wrong, the time of that wrong governs

accrual, even when “the effects” of that wrong continue

and “bec[o]Jme most painful” thereafter. Delaware

State Coll. v. Ricks, 449 U.S. 250, 258 (1980). Indeed,

even if a defendant has “give[n] present effect to the

6 Again, petitioner insisted that the presence vel non of the

favorable-termination element will “determine [his] fate.” Pet. 21.

Accordingly, petitioner has forfeited, if not outright waived, this

argument. See, e.g., CRST Van Expedited, Inc. v. EEOC, 136 S.

Ct. 1642, 1653 (2016).

past illegal act and therefore perpetuate[d] the

consequences,” the date of the original wrong still

defines the claim’s accrual. United Air Lines, Inc. v.

Evans, 431 U.S. 553, 557 (1977).

Those teachings control here. The “seizure” of a

warrantless arrest “is a single act, and not a continuous

fact.” California v. Hodari D., 499 U.S. 621, 625 (1991)

(quoting Thompson v. Whitman, 85 (18 Wall.) 457, 471

(1874)); see, e.g., Leon, 468 U.S. at 906 (“The wrong

condemned by the [Fourth] Amendment is ‘fully

accomplished’ by the unlawful search or seizure itself.”)

(citation omitted). The seizure is fully accomplished no

later than wher the Gerstein hearing blesses it. The

Court followed this principle in Wallace, rejecting

plaintiffs claim that his “false imprisonment ended

upon his release from custody” and holding instead that

his claim accrued when he “appeared before the

examining magistrate and was bound over for trial.”

549 U.S. at 390, 391; see infra Section II.C.

Indeed, even petitioner appears to recognize that

his “‘detention[] * * * pending trial” was merely a

“consequence[]” of the earlier alleged wrong. Pet’r Br.

14, 24 (quoting Gerstein, 420 U.S. at 125 n.27) (some

quotation marks omitted). But the continuing effects of

that initial seizure—like the continuing effects of other

statutory and constitutional violations—do not delay

accrual.

2: The circumstances in which this Court has

recognized a continuing-violation theory prove the

point. The theory applies when the plaintiffs claim

does not consist of “discrete acts,” but rather alleged

wrongs that by “({t]heir very nature involve[ ] repeated

conduct” that becomes unlawful only via its ongoing

character—as, for example, in a challenge to a hostile

work environment or racial steering in housing. Nat'l

R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114-15

(2002); see Havens Realty Corp. v. Coleman, 455 U.S.

363, 380-81 (1982). And while such claims are timely so

long as “an act contributing to the claim occurs within

the filing period,” Morgan, 536 U.S. at 117, those claims

still require “affirmative acts of the defendants” in the

limitations period, Cowell v. Palmer Twp., 263 F.3d

286, 293 (3d Cir. 2001) (citing Ricks, 449 U.S. at 258).

But petitioner’s claim concerns a discrete seizure, and

he has not alleged any affirmative acts by respondents

that occurred less than two years before he filed his

complaint.

In light of these settled principles, lower courts

repeatedly have rejected the argument that ongoing

detention following a seizure works a “continuing

violation” that defers the start of the limitations period

until the detention ends. MacNamara v. Hess, 67 F.

App’x 139, 143 (8d Cir. 2003); see, e.g., Batiste v. City of

Boston, 23 F.3d 394, 1994 WL 164568, at *2 (1st Cir.

1994) (unpublished table decision) (per curiam, joined

by Breyer, J.); McCune v. City of Grand Rapids, 842

F.2d 903, 905-06 (6th Cir. 1988); Becker v. Kroll, 494

F.3d 904, 915-16 (10th Cir. 2007). As these courts

explain, “[djecades of Fourth Amendment precedent

[from this Court] hals} focused on the initial

deprivation of liberty,” “reflect[ing] [that] the Fourth

Amendment’s core concerns” are with the “initial

decision to detain an accused,” not the period of

detention (or prosecution) that may follow. Riley v.

Dorton, 115 F.3d 1159, 1162-63 (4th Cir. 1997) (quoting

Bell v. Wolfish, 441 U.S. 520, 583-34 (1979)), abrogated

on other grounds by Wilkins v. Gaddy, 559 U.S. 34

(2010).7

Accordingly, lower courts that permit delayed

accrual of §1983 claims under the Fourth Amendment

do so not by adopting the continuing-violation theory,

but by incorporating malicious prosecution’s favorable-

termination element, or by relying on Heck. See supra

p. 8. Similarly, the United States and petitioner’s other

amici seek to achieve delayed accrual in these other

ways, implicitly rejecting a continuing-violation theory.

3. Finally, the continuing-violation theory (like

adoption of malicious’ prosecution’s favorable-

termination element, or an unwarranted expansion of

Heck) runs contrary to the very purpose of a statute of

limitations. Such statutes, and §1983’s incorporation of

them, recognize that “there comes a point at which the

delay of a plaintiff in asserting a claim is sufficiently

likely either to impair the accuracy of the fact-finding

process or to upset settled expectations that a

substantive claim will be barred.” Bd. of Regents of

Univ. of N.Y. v. Tomanio, 446 U.S. 478, 487, 492 (1980)

($1983 suit barred by New York statute of limitations);

see, e.g., Wallace, 549 U.S. at 396 (“States and

municipalities have a strong interest in timely notice of

alleged misconduct by their agents.”’) (citation

omitted).

If a Fourth Amendment malicious prosecution

claim does not accrue until after the case terminates

7 These courts further recognize that a continuing-violation

theory under the Fourth Amendment runs afoul of this Court’s

own treatment of conditions-of-confinement cases, which are

governed by the Due Process Clause or the Eighth Amendment,

not the Fourth Amendment. See Becker, 494 F.3d at 915~-16.

against the plaintiff (whether favorably or

unfavorably), law enforcement officers would find

themselves defending against such claims years or even

decades after the allegedly unlawful search or seizure,

often only after the §1983 plaintiff completes a period of

incarceration following conviction. Such defenses, even

against baseless claims, would become difficult if not

impossible as “[w]itnesses die or move away; physical

evidence is lost; [and] memories fade.” Vasquez v.

Hillery, 474 U.S. 254, 280 (1986). For this reason, too,

this Court should reject a continuing-violation view of

the Fourth Amendment.

C. Without A Favorable-Termination

Element Or Continuing Violation,

Petitioner’s Ciaim Fails.

Thus, if petitioner had a viable §1983 Fourth

Amendment claim, it accrued when he was seized, and

probable cause for the seizure found, on March 18, 2011.

That claim was therefore barred by Illinois’s applicable

two-year statute of limitations. Petitioner cannot avoid

that result by incorporating common-law elements with

no grounding in the Fourth Amendment. Nor can he

delay the accrual of his claim by arguing (implicitly, and

for the first time) that he suffered a continuing Fourth

Amendment violation for the entire period of his

prosecution.

In fact, petitioner never advances any express

theory as to why his Fourth Amendment claim is

timely. To the extent one can be discerned, it begins

with the reference in Wallace to a “malicious

prosecution” claim that arises after “institution of legal

process.” Pet’r Br. 7, 13. Wallace, petitioner says,

“referfed] to an arrest warrant as ‘legal process,”

which petitioner takes to mean that the Fourth

Amendment—which governs arrest warrants—houses

the “malicious prosecution” claim described in Wallace.

See Pet’r Br. 17-19 (citing Malley v. Briggs, 475 U.S.

335 (1986)). A Gerstein hearing, petitioner goes on, is

“the same” for relevant purposes as an arrest warrant.

Pet’r Br. 20 (quoting Gerstein, 420 U.S. at 120). And so,

petitioner concludes, “detention by reason of a Gerstein

hearing” is likewise detention pursuant to “legal

process” and therefore supports a claim for “malicious

prosecution * * * under the Fourth Amendment.” Pet’r

Br. 10, 21 (internal quotation marks omitted).

Putting aside the fact that Wallace does not hold

that an arrest warrant is “legal process” as petitioner

uses the term, see infra pp. 48-49, his argument fails

because it assumes away the only question that

matters. What determines petitioner's “fate” is

whether there exists a “malicious prosecution” claim

under the Fourth Amendment that contains the

favorable-termination element petitioner needs. Pet.

21. But as explained above, such an element is foreign

to the Fourth Amendment. And that remains true

however one parses Wallace’s references to “malicious

prosecution” and “legal process.” So while arrest

warrants and Gerstein hearings serve the same basic

function in assessing probable cause for an initial

arrest, that only reinforces why a favorable-

termination element does not apply to alleged

misstatements at either stage.

In short, Wallace’s bare mention of the term

“malicious prosecution” is too thin a reed to carry the

weight of a favorable-termination element that cannot

be squared with the Fourth Amendment. See Wallace,

549 U.S. at 390 n.2 (“We have never explored the

contours of a Fourth Amendment malicious-prosecution

suit under §1983, * * * and we do not do so here.”).

Without that element, it is immaterial whether Wallace

would label petitioner’s claim as one for false arrest or

malicious prosecution. Either way, the claim is

untimely.

Il. After The Prosecution Begins, The Due Process

Clause, Not The Fourth Amendment, Governs

Petitioner’s Claim That His Detention Was

Unduly Prolonged.

As Part I shows, the Fourth Amendment does not

house a constitutional tort with the favorable-

termination element that would delay accrual of

petitioner’s otherwise untimely claim. This Court’s

inquiry may end there. The answer to the question

presented is “no”: There is no “malicious prosecution

claim,” as petitioner must define the term, “based upon

the Fourth Amendment.” Pet. i. Accordingly, even if

petitioner were correct that officer misstatements

violate the Fourth Amendment whenever they cause a

person to be detained—whether those misstatements

occur at a warrant hearing, a Gerstein hearing, before a

grand jury, at a preliminary hearing, or elsewhere—on

the facts of this case petitioner’s claim fails as a matter

of law.

But petitioner’s claim also fails because he has no

Fourth Amendment claim for “continued detention”

after his initial seizure and probable cause finding.

First Am. Compl. 9175 @J.A. 79). Following a Gerstein

finding of probable cause—at least as far as the Fourth

Amendment is concerned—the suspect may be

detained until he is tried or the charges are dropped.

Petitioner contends that the prosecution was

abusive and should have stopped (along with his

detention) earlier than it did. Jd. 44153, 156, 165, 169,

173, 179, 199-201 (J.A. 74-75, 77-80, 83-84); Pet i. But

if such a claim—which contests the validity of the

prosecution—has a constitutional home anywhere, it is

not the Fourth Amendment. The Due Process Clause

is the only possible grounding for a claim that

petitioner suffered a deprivation of liberty because

respondents allegedly encouraged an _ abusive

prosecution and frustrated the procedural safeguards

meant to prevent baseless prosecutions. U.S. Const.

amend. XIV.

A. There Is No Fourth Amendment Claim

For Unduly Prolonged Detention

Following Arrest And Commencement

Of Prosecution.

1. The only requirement the Fourth Amendment

prescribes for pretrial detention is an independent

assessment of probable cause for the initial seizure.

That may occur via an arrest-warrant proceeding

before the seizure, or via a Gerstein finding after.

Gerstein, 420 U.S. at 118, 124-25. Either way, that

initial assessment is all this Court has ever required, as

a Fourth Amendment matter, for “the detention of

suspects pending trial.” Jd. at 125 n.27; see id. at 111

(Gerstein hearing authorizes suspect to be “held for

trial”); Michigan v. Doran, 439 U.S. 282, 295 (1978)

(Gerstein spelled out “[tJhe requirements of the Fourth

Amendment” in this area).

By contrast, when the initial seizure is not at issue,

there is no Fourth Amendment right to be released

from detention before the conclusion of trial or the

dismissal of charges. See Gerstein, 420 U.S. at 111, 125

n.27; Baker v. McCollan, 443 U.S. 137, 144—45 (1979);

see also Bell v. Wolfish, 441 U.S. 520, 533-34 (1979)

(after Gerstein probable cause finding, “the

Government may permissibly detain a _ person

suspected of committing a crime prior to a[n] * * *

adjudication of guilt” at trial (citing Gerstein, 420 U.S.

at 111-14)). That remains true whether the initial

assessment is unassailable because it was concededly

lawful or because, as here, challenges to it are time-

barred. United Airlines, 431 U.S. at 558 (act “not made

the basis for a timely charge” is “treat{ed] *** as

lawful”). If a defendant (or later, a civil plaintiff) claims

entitlement to an earlier release, he must seek refuge

elsewhere in the “elaborate system * * * designed to

safeguard the rights of those accused of criminal

conduct,” of which the Fourth Amendment is “only the

first stage.” Gerstein, 420 U.S. at 120-23, 125 n.27; see

infra Section II.B.

The Court recognized this principle in Baker v.

McCollan. There, the plaintiff alleged that after

executing a valid arrest warrant, a sheriff failed to

undertake “adequate _ identification procedures”

“despite his protests of mistaken identity.” 443 U.S. at

142, 144. The Court explained that because the plaintiff

had not challenged the underlying warrant or arrest, he

failed to state a Fourth Amendment claim. Jd. at 143-

44. Instead, when the plaintiff alleged he suffered

“prolonged detention caused by” the sheriffs errors,

the “constitutional provision allegedly violated” was

the Due Process Clause or, potentially, “the right to a

speedy trial.” Jd. at 142, 14445.

2. Even when initially authorized by the Fourth

Amendment, detention may continue only so long as a

prosecution proceeds. Arrest alone does not authorize

indefinite detention, so unless the decision is made to

prosecute (and continue that prosecution), the

defendant must be released. See Baker, 443 U.S. at

144-45. Accordingly, at some juncture following an

initial seizure, 2 criminal defendant’s continued pretrial

detention is due to the prosecution, rather than the

initial arrest and probable-cause finding. See generally

Hartman, 547 U.S. at 262-63; Graham, 490 U.S. at 395

n.10. That is why petitioner must concede that his

theory is more accurately described as “unreasonable

prosecutorial seizure.” Pet’r Br. 13 (internal quotation

marks omitted) (emphasis added). The defendant

remains detained only because the prosecution

continues.

But the question of whether the prosecution

continues—or instead should cease, causing the

defendant’s release—does not concern the Fourth

Amendment. This Court long has made clear that the

Fourth Amendment does not grant a criminal

defendant a right “to judicial oversight or review of the

decision to prosecute.” Gerstein, 420 U.S. at 119; see

Costello v. United States, 350 U.S. 359, 363 (1956) (“An

indictment returned by a legally constituted and

unbiased grand jury, like an information drawn by the

prosecutor, * * * is enough to call for trial.”); Albright,

510 U.S. at 282 (Kennedy, J., concurring in the

judgment) (similar).

All of this shows why petitioner has no viable

Fourth Amendment claim for detention resulting from

“malicious prosecution” beyond “legal process.” Pet. i.

The initial arrest and probable-cause assessment,

though he contends they were flawed, are not subject

to challenge here because the limitations period has

expired. See supra Part I. With that initial

assessment removed from consideration, the Fourth

Amendment does not confer a right to release prior to

trial or the dismissal of charges. And while petitioner

claims that respondents procured and prolonged that

prosecution abusively, see supra p. 36, the Fourth

Amendment does not govern the _ prosecution’s

propriety. So petitioner’s remedy, if any, lies

elsewhere. See, e.g., Llovet, 761 F.3d at 762 (“The

[Fourth] [AJmendment does not regulate the length of

detentions after a judge or magistrate has determined

that there is probable cause to detain a person on a

criminal charge.”).

3. Again, petitioner builds his case on Gerstein,

contending that “the Fourth Amendment supplies the

basis for analyzing allegedly unconstitutional

‘detentions of suspects pending trial.” Pet’r Br. 14

(quoting Gerstein, 420 U.S. at 125 n.27). Petitioner

reasons that he must have stated a Fourth Amendment

violation with his claim that the “criminal proceedings

against him * * * result[ed] in his prolonged detention.”

Pet’r Br. 13. But Gerstein did not hold that a potential

Fourth Amendment claim arises from every instance of

prolonged pretrial detention. Gerstein mandated a

finding to justify “the initial decision to detain an

accused” following a warrantless arrest, Bell, 441 U.S.

at 533-34 (emphasis added), but also established that

the Fourth Amendment did not require anything else

to authorize “detention of suspects pending trial,”

Gerstein, 420 U.S. at 125 n.27; see supra p. 36. In fact,

Baker recognized that a similar “prolonged detention”

claim did not arise under the Fourth Amendment. 443

US. at 142, 14445.

Indeed, petitioner’s theory proves far too much.

While he tries to cabin his claim to prolonged pretrial

detention, he betrays the logic of his position when he

says that anyone who is ever “put in jail is seized from

arrest until release.” Pet’r Br. 22. Under that rule, as

petitioner’s amici make explicit, even post-conviction

detention would violate the Fourth Amendment if

there were an objective lack of probable cause at the

time of arrest, see, ¢.g., Alschuler Br. 4, 6-7—for if a

grand jury indictment or decision to bind the defendant

over following a preliminary hearing do not mark the

end of any initial Fourth Amendment seizure, there is

no reason why conviction following trial would do so.

This would mean that, contrary to settled law, the

Fourth Amendment forbids all trial-related misconduct

causing or perpetuating the detention of a criminal

defendant whom there is no probable cause to detain.

The state’s failure to disclose exculpatory evidence, a

prosecutor’s decision to press charges based on

retaliatory animus, and the state’s suborning perjury

all would become Fourth Amendment claims, whereas

until now the Court has treated them exclusively as

matters of due process. See Brady v. Maryland, 373

U.S. 83, 86 (1963); United States v. Bagley, 473 U.S.

667, 680 (1985); United States v. Goodwin, 457 U.S. 368,

372-73 (1982); United States v. Augenblick, 393 U.S.

348, 352-53 (1969). Petitioner fails to address this

established law, much less offer any sound basis for

upending it.

B. The Due Process Clause Is The Sole

Constitutional Home, If One Exists,

For Petitioner’s Claim.

1. With his initial detention and probable cause

finding time-barred, petitioner’s claim here is, at

bottom, a challenge to the allegedly abusive

prosecution that led to his “prolonged detention.” Pet’r

Br. 13. His confinement continued because, and only

because, respondents allegedly procured “criminal

proceedings against him” and avoided the dismissal of

those proceedings until May 4, 2011. See supra pp. 11-

12.

Procedures exist for halting allegedly abusive

prosecutions. For instance, a grand jury may refuse to

indict, or the court may dismiss charges after a

preliminary hearing. See Yale Kamisar et al., Modern

Criminal Procedure 963, 1013 (13th ed. 2012) (grand

juries and preliminary hearings provide “screening of

the prosecutor’s decision to file felony charges”). A

claim, like petitioner’s, that a prosecution should have

ceased earlier thus alleges either that the respondents

abused these procedures or that additicnal procedures

should have been provided that would have led to the

prosecution’s termination (and thus the suspect’s

release).

2. Such claims are quintessential due process

issues. Demands for additional procedural safeguards

are at the core of due process. Baker, 443 U.S. at 145;

see Gerstein, 420 U.S. at 125 n.27; see also United

States v. Salerno, 481 U.S. 739, 746, 750 (1987)

(procedures for pre-trial bail); Wolff v. McDonnell, 418

U.S. 539, 558-59 (1974) (post-conviction discipline);

Perry v. Sindermann, 408 U.S. 593, 601-02 (1972)

(public employment).

Likewise, this Court has long recognized that a

state violates due process when it turns existing

procedures into “a contrivance” “through a deliberate

deception” via “the presentation of testimony known to

be perjured.” Mooney v. Holohan, 294 U.S. 103, 112

(1985). The same is true of all manner of malicious

abuses of the state’s criminal procedures that effect a

deprivation of liberty—including, of particular

relevance here, when the state’s agents commence or

continue criminal proceedings out of “an improper

vindictive motive,” Goodwin, 457 U.S. at 373, 384; see

N. Carolina v. Pearce, 395 U.S. 711, 725 (1969) (same in

sentencing proceedings), or when “bad faith” by police

officers results in the destruction of exculpatory

evidence, Arizona v. Youngblood, 488 U.S. 51, 58

(1988).

In fact, Justice Scalia indicated that one of

petitioner’s very allegations—the “supposed knowing

use of fabricated evidence before the grand jury”—

would “state a claim for denial of due process.”

Buckley v. Fitzsimmons, 509 U.S. 259, 281 (1993)

(Sealia, J., concurring) (emphasis omitted) (citing

Mooney, 294 U.S. at 112); First. Am. Compl. 4165 & Ex.

2 (J.A. 77, 94-96); Pet. App. A2. Lower courts, too,

have recognized that due process governs abusive

deprivations of liberty or property stemming from the

commencement of prosecution®—precisely what

petitioner alleges here. Br. of Pl.-Appellant, supra, at

3, 5 (ECF No. 16); J.A. 37-38, 62-63, 77.

3. Petitioner could have invoked these principles to

challenge the prosecution that resulted in his prolonged

detention. But he did not press such a claim, and he

8 See, e.g., Whitlock v. Brueggemann, 682 F.3d 567, 585-86

(7th Cir. 2012); Klen v. City of Loveland, 661 F.3d 498, 516 (10th

Cir. 2011); Surprenant v. Rivas, 424 F.3d 5, 15 (1st Cir. 2005);

Devereaux v. Abbey, 263 F.3d 1070, 1074-75 (9th Cir. 2001) (en

banc); Zahrey v. Coffey, 221 F.3d 342, 348 (2d Cir. 2000).

cannot transform the Fourth Amendment into a vehicle

to do so.

Indeed, petitioner’s position is especially untenable

insofar as he suggests he retained a live Fourth

Amendment claim after these procedures ran their

course. If a grand jury or preliminary hearing

reaffirms that a prosecution should advance, then any

continued detention is plainly the result of that

proceeding, not the initial seizure. At that point, there

is no. further’ relevance to any alleged

misrepresentations in connection with “the initial

decision to detain an accused” pending trial, Bell, 441

U.S. at 533-34 (emphasis added), which is the Fourth

Amendment’s sole concern. See supra p. 36.9

4. This’ distinction between the Fourth

Amendment and the Due Process Clause accords with

lines the Court has often drawn. While a seizure on the

street—i.e., an arrest—is a core Fourth Amendment

issue, once the prosecution begins, due process governs

the adequacy of procedures for release on bail. See

Salerno, 481 U.S. at 746, 750. Similarly, while the

Fourth Amendment governs the manner of the initial

detention, the manner of continued detention pending

trial—the conditions of confinement, or claims of

excessive force—are matters of due process. See Bell,

441 U.S. at 535-36. And what is true of a suspect’s

9 The result might be different if a grand jury indictment had

been used to obtain an arrest warrant, which officers then

employed to procure a suspect’s initial arrest. See, e.g., Kaley v.

United States, 134 S. Ct. 1090, 1098 (2014) (noting that grand jury

“indictment triggers ‘issuance of an arrest warrant without

further inquiry”’ (quoting Gerstein, 420 U.S. at 117 n.19)). Here,

the grand jury hearing came long after petitioner's arrest and

Gerstein determination. See supra pp. 11-12.

liberty holds equally for his property. The initial

seizure’s legality is a Fourth Amendment question, but

when the government seeks to prolong control over

assets pending trial under a forfeiture statute, due

process provides the standard. Kaley v. United States,

134 S. Ct. 1090, 1096 (2014); cf. id. at 1098

(commencement of legal process via _ indictment

“eliminates ** * Fourth Amendment” inquiry as to

“probable cause to support any detention”). Likewise

here, the Fourth Amendment’s scope is limited to the

initial probable cause assessment; it does not stretch to

include the propriety of the ensuing prosecution or

alleged corruption of the procedures designed to

oversee it.

5. Due process is the only possible home for a

constitutional tort that looks anything like common-law

malicious prosecution. To be sure, it is by no means

clear that a claim with the tort’s common-law elements

exists as a constitutional cause of action under §1983.

After all, §1983 is not “simply a _ federalized

amalgamation of pre-existing common-law claims.”

Rehberg, 132 S. Ct. at 1504; see Nahmod, supra, §3.63.

But due process is the only candidate here.

At a minimum, the Fourth Amendment is

incompatible with two elements that characterize the

““distinct’ tort of malicious prosecution”: favorable

termination and malice. Wallace, 549 U.S. at 390

(citation omitted); see supra Section I.A. Not so with

due process. Malicious prosecution’s favorable-

termination element is at least arguably consistent with

a challenge to the integrity of the prosecution itself

(rather than a mere challenge to the defendant’s

seizure). And the integrity of the processes involved in

prosecution is the bailiwick of due process. See

California v. Trombetta, 467 U.S. 479, 485 (1984) (due

process “ensur[es] the integrity of our criminal] justice

system”); see, e.g., Arizona v. Fulminante, 499 U.S.

279, 310 (1991) (due process claimant must show either

effect on outcome or “structural defect” in proceeding).

Likewise, malicious prosecution’s malice element is

incompatible with the Fourth Amendment, see supra

Section I.A.2, but fits easily with due process, which

long has been home to intentional constitutional torts.

See, e.g., Hudson v. Palmer, 468 U.S. 517, 533 (1984);

Paul v. Davis, 424 U.S. 693, 708-09 (1976). In fact,

historically the “guarantee of due process has been

applied [only] to deliberate decisions of government

officials to deprive a person of life, liberty, or

property.” Daniels, 474 U.S. at 331 (citations omitted).

Similarly, the damages available for a malicious

prosecution claim make sense only as part of a due

process challenge to the integrity of the prosecution—

not merely a challenge to an accompanying

confinement. Wallace explained that at common law

“unlawful detention forms part of the damages” for

malicious prosecution. 549 U.S. at 390 (emphasis

added). But common-law malicious prosecution was a

“dignitary tort,” 2 Dan B. Dobbs, The Law of Remedies

§7.1(1) (2d ed. 1993); see 3 William Blackstone,

Commentaries *127, which compensated plaintiffs for

the broad array of harms attributable to being falsely

accused of a crime, including reputational harm and

emotional distress, Savile v. Roberts, 91 Eng. Rep.

1147, 1149-50 (K.B. 1698); accord Restatement (Second)

of Torts §§670, 671. Such damages, to the extent

compensable under §1983, make sense only in an action

challenging the integrity of a prosecution.!°

C. The Court Need Not Determine When

Petitioner Was First Held Pursuant To

The Ongoing Prosecution, But His

Initial Appearance Before A

Magistrate Is Consistent With

Nationwide Criminal Procedure And

This Court’s Precedent.

1. This case does not require the Court to

determine the precise moment when petitioner’s

detention resulted from the ongoing prosecution, rather

than his initial seizure. Petitioner filed his suit more

than two years after his arrest, Gerstein finding, first

appearance, indictment, and arraignment. If any of

those points mark the end of a Fourth Amendment

claim, that claim is untimely.

But if the Court were to specify a breakpoint—a

moment at which a defendant definitively is detained

not pursuant to the initial arrest, but because a

prosecution has commenced and is ongoing—the

obvious point would be the defendant’s first appearance

10 This line also is consistent with Albright. In light of the

particular allegations in that case, only Justices Kennedy and

Thomas construed Albright’s claim as a challenge to his

prosecution, and so only these Justices—unlike the plurality and

Justice Souter—treated it as a malicious prosecution claim. 510

U.S. at 281 (Kennedy, J., concurring in the judgment). The

plurality, Justice Scalia, and Justice Souter likewise all recognized

a distinction between a challenge to an initial seizure and a

challenge to a prosecution, but because they did not understand

Albright to challenge the latter, they did not even call Albright’s

claim “malicious prosecution.” Jd. at 271 (plurality); id. at 275

(Scalia, J., concurring); id. at 289-91 (Souter, J., concurring).

before a magistrate. This appearance, otherwise

known as the “initial presentment,” “preliminary

arraignment,” or “arraignment on the complaint,”

stems from the requirement that an “arrestee who is

held in custody *** must be presented before the

magistrate court within a time period typically

specified as either 24 or 48 hours.” Kamisar, supra, at

13-14; see also Unif. R. Crim. P. 311(a), (d) (1987); Fed.

R. Crim. P. 5(a).

“This first time before a court * * * is generally the

hearing at which ‘the magistrate informs the defendant

of the charge in the complaint, and of various rights in

further proceedings,’ and ‘determine[s) the conditions

for pretrial release.” Rothgery v. Gillespie Cty., 554

U.S. 191, 199 (2008) (quoting 1 Wayne R. LaFave et al.,

Criminal Procedure §1.4(g) (3d ed. 2007)); see 3 Wayne

R. LaFave et al., Criminal Procedure §11.2(b) (4th ed.

2015); Kamisar, supra, at 13-14. It is also the latest

point at which the constitutional right to counsel

attaches, for it marks the “point at which the

government has committed itself to prosecute, the

adverse positions of government and defendant have

solidified, and the accused finds himself faced with the

prosecutorial forces of organized society, and immersed

in the intricacies of substantive and procedural criminal

law.” Rothgery, 554 U.S. at 198 (internal quotation

marks omitted). As in this case, moreover, because it is

the moment when bail is set, the first appearance

marks a defendant’s transition from police custody to

detention at the county jail. See supra pp. 11-12; see

generally Kamisar, supra, at 11, 14. At that point

petitioner can no longer claim he was detained because

of his initial seizure; rather, he then was detained

because the government exercised its discretion to

prosecute him.

2. To the extent “malicious prosecution” in Wallace

refers to a constitutional claim with elements of the

common-law tort (by no means a given, see supra

Section I.C), that decision suggests this very line. The

Court in Wallace described the initiation of process as

the moment when a defendant “is bound over by a

magistrate or arraigned on charges,” concluding that

when the plaintiff “appeared before the examining

magistrate” his false imprisonment claim ended and a

“malicious prosecution” claim began. 549 U.S. at 389—

91. Unlike a warrant hearing or Gerstein finding

(petitioner’s definition of “process,” see supra Section

I.C, infra Section II.D), which may occur ex parte, an

appearance “before the examining magistrate”

suggests a first appearance, as does the phrase

“arraigned on charges,” which mirrors a phrase—

“arraignment on the complaint”—that is synonymous

with “first appearance.” The Seventh Circuit, too, uses

the term “arraignment” or “initial appearance in

court” to describe the transition between false arrest

and malicious prosecution, see Pet’r Br. 21; Llovet, 761

F.3d at 763 (quoting Hernandez v. Sheahan, 455 F.3d

772, 776-77 (7th Cir. 2006)), as does the United States in

this case, see U.S. Br. 6 n.8 (recognizing that petitioner

was arraigned within Seventh Circuit’s meaning when

he “had his first appearance on the criminal

complaint”).

And while Wallace also used the phrase “bound

over by a magistrate” to describe the transition, this

term does not refer to a Gerstein hearing, as petitioner

implies. See Pet’r Br. 17. Rather, being “bound over”

refers to the magistrate’s later finding, at a preliminary

hearing, that sufficient evidence exists to proceed with

the prosecution or trial.!1 See, e.g., Albright, 510 U.S.

at 269 (plurality op.); Coleman v. Alabama, 399 US. 1,

9 (1970); see also Kamisar, supra, at 1011 (magistrate

makes “bindover determination” at preliminary

hearing).!2

D. __‘Petitioner’s Counterarguments Fail.

1. Petitioner disregards all of this and contends

that a Gerstein finding is “process” giving rise to a

malicious prosecution claim under Wallace. See supra

Section IL.C. But the idea that Wallace intended to

refer to a Gerstein finding (without ever using that

term) as triggering a Fourth Amendment malicious

11 Nor is there anything to Wallace’s reference to the lack of

an arrest warrant in that case. See Pet’r Br. 17. At most, this

reference recognizes that process could not have commenced

because there was not even a warrant. But the Court did not

equate issuance of an arrest warrant with the start of legal

process. Instead, Wallace says legal process comes later, when a

defendant “is bound over by a magistrate or arraigned on

charges.” 549 U.S. at 389.

12 At common law, courts may have treated a warrant

hearing as the starting point of a malicious prosecution claim, see,

e.g., Restatement (Second) of Torts §654, cmt. c, but this Court

need not conform to every particular of the common law, especially

when constitutional principle, to say nothing of modern norms of

criminal procedure, is to the contrary, Rehberg, 132 S. Ct. at 1503.

In any event, common-law courts also recognized that malicious

prosecution challenges to ex parte proceedings did not require the

tort plaintiff to prove favorable termination, the one element

petitioner must insist upon here. See, e.g., Fortman v. Rottier, 8

Ohio St. 548, 551 (1858); Bump v. Betts, 19 Wend. 421, 422 (N.Y.

Sup. Ct. 1838); Steward v. Gromett, 141 Eng. Rep. 788, 793 (Ct.

Common Pleas 1859) (opinion of Erle, C.J.).

prosecution claim, complete with a_ successful

termination element, is impossible to sustain.

“The sole issue [in a Gerstein hearing] is whether

there is probable cause for detaining the arrested

person pending further proceedings.” Gerstein, 420

U.S. at 120 (emphasis added). As petitioner

acknowledges, Gerstein hearings differ from criminal

prosecutions because they may be non-adversarial,

conducted ex parte, and resolved entirely on either

hearsay evidence or written testimony. Pet’r Br. 20 &

n.5. They also differ in that they are not held to further

a criminal prosecution, but rather (like warrant

hearings) to ensure prompt assessment of probable

cause to arrest even while a decision whether to

prosecute may remain pending. Cty. of Riverside v.

McLaughlin, 500 U.S. 44, 56 (1991) (holding that

Gerstein finding ordinarily must occur within 48 hours).

To be sure, in many cases—as in this one—a magistrate

will make the Gerstein finding at the start of the

defendant’s first appearance. 3 LaFave, supra,

§11.2(b). But in such cases, it is not the Gerstein

finding but what follows—the reading of charges,

description of rights, attachment of the Sixth

Amendment right to counsel, and bail determination—

that mark the initiation of the prosecution.

That does not challenge petitioner’s assertion that

the questions addressed at a post-arrest Gerstein

hearing are “the same’ as * * * for the issuance of an

arrest warrant.” Pet’r Br. 20 (quoting Gerstein, 420

U.S. at 120). They are the same. They both arise under

the Fourth Amendment because they both concern a

suspect’s initial arrest and detention. Neither

recognizes a Fourth Amendment claim for “prolonged

detention” following the initial assessment of probable

cause, Pet’r Br. 13; neither addresses the propriety of

the prosecution whose maintenance caused that

prolonged detention; and neither provides any basis for

a malicious prosecution claim with a favorable-

termination element—the initial arrest could have been

flagrantly unlawful but an ensuing prosecution and

conviction perfectly permissible.

2. Petitioner invokes Burns v. Reed for its

observation that, for purposes of the absolute immunity

doctrine as applied to prosecutors, “a probable-cause

hearing is ‘intimately associated with the judicial phase

of the criminal process.” 500 U.S. 478, 492 (1991)

(quoting /mbler v. Pachtman, 424 U.S. 409, 430 (1976)).

Yet not only did that case address the very different

issue of when absolute immunity begins, but it involved

a prosecutor's effort to secure a search warrant—and

even petitioner does not contend that every request for

a search warrant marks the start of a malicious

prosecution claim.

3. Finally, petitioner errs when he claims that

Justice Scalia’s concurrence in Kalina suggested that

malicious prosecution claims may “be brought against

officers who cause illegal detentions pursuant to arrest

warrants not supported by probable cause.” Pet’r Br.

19 (citing Kalina, 522 U.S. at 133-34 (Scalia, J.,

concurring)). In fact, Justice Scalia noted only that

under the common law rule, “[a] private citizen who

initiated or procured a criminal prosecution could (and

can still) be sued for the tort of malicious prosecution.”

522 U.S. at 132. Justice Scalia said nothing about

whether a tort with the elements of common-law

malicious prosecution would be cognizable under §1983

if a police officer procured an arrest warrant without

probable cause that resulted in a criminal prosecution.

** * *

In short, because Wallace recognizes a line

between false imprisonment and malicious prosecution

claims that falls after the Gerstein finding, petitioner is

wrong to argue—as he does throughout his brief—that

misstatements in support of a Gerstein finding support

a Fourth Amendment claim for malicious prosecution.

In fact, those are Fourth Amendment claims that, as

Wallace holds, accrue when the (malicious) prosecution

begins. Again, however, even if Wallace actually

intended to announce a new “malicious prosecution”

tort based on an adverse Gerstein finding—so that two

Fourth Amendment torts with different elements (false

arrest and malicious prosecution) sit back to back—the

latter, process-based tort would lack the common-law

element petitioner needs to prevail. See supra Part I.

All of this is in step with the Seventh Circuit’s

holding below, which does not suggest that falsehoods

at a Gerstein hearing are not actionable misconduct

under the Fourth Amendment. J.A. 103. Indeed, the

parties never so much as cited Gerstein in their

appellate briefs. That court merely recognized,

consistent with its precedent, that “[rjelabeling a

fourth amendment claim as a ‘malicious prosecution’

[does] not extend the statute of limitations.” Newsome,

256 F.3d at 751. Because petitioner waited more than

two years after his arrest and probable cause finding to

file his complaint, he could not overcome the time bar

by calling his Fourth Amendment claim “malicious

prosecution.” If petitioner wanted to challenge his

ongoing detention, he needed to do so under the Due

Process Clause.

E. There Are Advantages To Favoring

State Law As A Source Of Malicious

Prosecution Claims.

Because petitioner disavows any desire to assert a

claim under the Due Process Clause, this Court need

not resolve how the rule of Parratt, 451 U.S. 527, which

applies when the conduct of a government official is

random and unauthorized, would impact such a

hypothetical claim. See Pet’r Br. 33 (asserting that if

malicious prosecution is governed by due process, “it

would not necessarily follow that Parratt{] * * * would

apply in this setting”). But when a procedural due

process tort is potentially subject to Parratt, it

encourages robust state-law remedies. Accordingly,

recognizing that a §1983 claim for malicious prosecution

sounds, if at all, in the Due Process Clause would have

the salutary effect of encouraging further development

of state remedies for malicious prosecution.

Under Parratt, procedural due process does not

require pre-deprivation procedures to protect a

constitutional interest (here, liberty) if the deprivation

results from a random and unauthorized act (here, the

alleged falsification of evidence) when state law

provides adequate post-deprivation process (here, a

state-law malicious prosecution tort). See Zinermon v.

Burch, 494 U.S. 118, 182 (1990). Accordingly, state

actors are subject to federal claims under §1983 only

when the state’s remedies are inadequate. See Julian

v. Hanna, 732 F.3d 842, 846-48 (7th Cir. 2013) (holding

that Indiana has not adopted an adequate malicious

prosecution remedy).!3

For a procedural due process tort, therefore, the

States, rather than §1983, serve as the primary sources

of substantive law. That means there are no

“uncertainties” over what process is “due” when

Parratt applies, Pet’r Br. 30—the process due is the

process provided for by state law, so long as that law is

constitutionally adequate. The Federal Constitution

thus serves as a floor, rather than a ceiling, on the

protection of individual rights.

Presently, state experimentation with the elements

of common-law malicious prosecution occurs principally

over the favorable-termination element. See generally

Cordova, 816 F.3d at 664 (Gorsuch, J., concurring in the

judgment). Some states treat this element as requiring

that the termination of criminal proceedings indicates

innocence. Miles v. Paul Mook of Ridgeland, Inc., 113

So. 3d 580 (Miss. Ct. App. 2012). Others view it as

requiring only that the criminal prosecution be

dismissed, even by a nolle prosequi. Glover v. City of

Wilmington, 966 F. Supp. 2d 417, 426 (D. Del. 2013).

This experimentation is beneficial and permits states to

account for variations in their criminal practice and

procedure.

13 For this reason, the argument by one of petitioner’s amici

that §1983 malicious prosecution cannot be a procedural due

process tort because “there is no limit on a state’s ability to

immunize its own officers” is misguided. Br. of Nat’l Police

Accountability Project as Amicus Curiae in Support of Petitioner

11. As the Seventh Circuit has held, Parratt does not apply, and a

federal remedy exists, when state law immunizes law enforcement

personne! from malicious prosecution liability. Julian, 732 F.3d at

846-48.

CONCLUSION

The judgment of the Seventh Circuit should be

affirmed.

MATTHEW S. HELLMAN

ERICA L. Ross

ZACHARY C. SCHAUF

JENNER & BLOCK LLP

1099 New York Ave., NW

Washington, DC 20001

(202) 639-6000

DAVID A. STRAUSS

SARAH M. KONSKY

JENNER & BLOCK

SUPREME COURT AND

APPELLATE CLINIC AT

THE UNIVERSITY OF

CHICAGO LAW SCHOOL

1111 E. 60th Street

Chicago, IL 60637

(773) 834-3189

August 3, 2016

Respectfully submitted,

MICHAEL A. SCODRO

Counsel of Record

CLIFFORD W. BERLOW

BRIANA T. SPRICK-

SCHUSTER

CHRISTOPHER M. SHEEHAN

JENNER & BLOCK LLP

353 N. Clark Street

Chicago, IL 60654

(312) 222-9350

mscodro@jenner.com

MARTIN J. SHANAHAN, JR.

CORPORATION COUNSEL

CITY OF JOLIET

150 West Jefferson Street

Joliet, IL 60432

(815) 724-3800

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