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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0580%3A07

## Record

- **Collection:** Supreme Court brief
- **Document type:** Respondents Brief
- **Published:** January 1, 2016

## Text

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

i

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
A. TE TE esiescciccnntinernmnnphacibnsin 3
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

il
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
A.

There Is No Fourth Amendment Claim
For Unduly' Prolonged Detention

The Due Process Clause Is The Sole
Constitutional Home, If One Exists, For

ED

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

iv

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

Vv

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

vi

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

ix
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

xl
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

2

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

3

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|;]

4

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).

5

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).

6

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

7

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

8

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.

9

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.

10
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).

1]

“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.

12
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

13
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.

14
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

15

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.

16

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.

17
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

18
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

19

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

20

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.

21
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.

22
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

23

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

24

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

25
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

26

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

27

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.

28

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

29

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).

30

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

31

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

32

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.

33

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,”

34

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

35

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.

36

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

37

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

38

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

39

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.

40

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

41

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

42

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).

43

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.

44

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

45

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

46
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).

47

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

48
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

49
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.).

50

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

ol

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.

52

** * *

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.

53

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

54
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.

55

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0580%3A07. Public record. Not legal advice.