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

Supreme Gout, US]

FILED

AUG 10 20%

OFFICE OF THE CLERK

No. 14-9496

In the Supreme Court of the Anited States

ELIJAH MANUEL,

Petitioner,

v.

CITY OF JOLIET, ILLINOIS, ET AL.,

Respondents.

On Writ of Certiorari

to the United States Court of Appeals

for the Seventh Circuit

BRIEF OF SHELDON H. NAHMOD AS AMICUS

CURIAE IN SUPPORT OF RESPONDENTS

JOSHUA D. YOUNT SHELDON H. NAHMOD

CHARLES M. WoopWORTH Counsel of Record

MICHAEL J. DOWNEY IIT Chicago-Kent College

Mayer Brown LLP of Law

71 South Wacker Drive 565 West Adams Sireet,

Chicago, IL 60606 Room 847

(312) 782-0600 Chicago, IL 60661

(312) 906-5261

snahmod@kentlaw.edu

Counsel for Amicus Curiae

ne i RSE

i

TABLE OF CONTENTS

Page

INTEREST OF THE AMICUS CURIAE................... 1

INTRODUCTION AND SUMMARY OF

SE a a Oe 2

PERL ER ae 5

I. SECTION 1983 DOES NOT

FEDERALIZE STATE TORT LAW. .................... 5

A. The Text, History, And Purposes Of

§ 1983 Demonstrate That Congress

Did Not Intend To Duplicate Common

Law Causes Of Action........................00.002000- 5

B. This Court Has Consistently

Recognized That Tort Law Does Not

Determine The Scope Of § 1983................... 9

II.

THIS COURT SHOULD NOT IMPORT

THE ELEMENTS OF COMMON LAW

MALICIOUS PROSECUTION INTO

PETITIONER'S § 1983 CLAIM FOR

UNLAWFUL PRETRIAL DETENTION .......... 15

A. Common Law Elements Of Malicious

Prosecution Provide A Poor

Foundation For A § 1983 Claim ................. 15

There Is No Sound Reason To Adopt,

As A Matter Of § 1983 Law And

Policy, Any Of The Common Law

Elements Of Malicious Prosecution ........... 19

eT deincctetcceniintiinctininentatententienveemmnesceneinin 23

i

TABLE OF AUTHORITIES

Page(s)

Cases

Albright v. Oliver, 510 U.S. 266 (1994) .................. 2.3

Anderson v. Creighton, 483 U.S. 635 (1987) ............ 10

Bivens v. Six Unknown Named Agents,

ee a Ce I Eiictndneccnrsccsécensntccscesosiase 9, 13, 21

Carey v. Piphus, 435 U.S. 247 (1978) ............... 1, 7, 12

Castellano v. Fragozo, 352 F.3d 939

III MI ol snin inher esacemiaerebadunnpedsnemnseisosion 3, 16

Chardon v. Fumero Soto, 462 U.S. 650

a ieenubicdindiiatiiaion 1

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

es i. cebleantansonaienginde 18

Daniels v. Williams, 474 U.S. 327 (1986)....... 8, 11, 21

George v. Williams, 222 P. 410 (Ariz. 1924)............. 18

Gerstein v. Pugh, 420 U.S. 103 (1975)................00066 21

Graham v. Connor, 490 U.S. 386 (1989) .................. 21

Grider vy City of Auburn, Ala., 618 F.3d

EY I ccs cnncinsinantiningitnciesaccnsnsoninnsin 16

Hartman v. Moore, 547 U.S. 250 (2006)............. 13, 21

Heck v. Humphrey, 512 U.S. 477

a a 14, 15, 18, 20-23

TABLE OF AUTHORITIES—continued

Page(s)

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

I arial ethic an ple ccaenatiiaeeenepeinenetaet 19

Imbler v. Pachtman, 424 U.S. 409 (1976)........... 13, 14

Lugar v. Edmondson Oil Co., 457 U.S. 922

ERE SSE SR SS SO SELES RS OE TE 6

Malley v. Briggs, 475 U.S. 335 (1986) ...................... 13

McNeese v. Bd. of Educ. for Cmty. Unit Sch.

Dist. 187, Cahokia, Ill., 373 U.S. 668

Sich aleikdicientadentgdbntasacdehabadmmbiaiadunninieinbdeeareesseetn 8

Memphis Cmty. Sch. Dist. v. Stachura, 477

| EES SERS SINE De heat ee 7,12

Monell v. Dep't of Soc. Servs. of City of N.Y.,

i i Se sccscccacenscsccscnsensecccssccsees 6, 7,13

Monroe v. Pape, 365 U.S. 167 (1961)............ 4,7, 8,11

Moser v. Fulk, 74 S.E.2d 729 (N.C. 1953) ................ 18

Newsome v. McCabe, 256 F.3d 747

EEE: UE iccisichcesebbsiaeninbbbinddedsopeesenicseunesees 3, 17

Owen v. City of Indep., Mo., 445 U.S. 622

ERE SBS I Sate Se cae ot Se 13

iv

TABLE OF AUTHORITIES—continued

Page(s)

Parsons v. City of Pontiac, 533 F.3d 492

Se Re I iditicnccsdnndtainsdietaieecinnmnssaneccsssesbatnsions 19

Paul v. Davis, 424 U.S. 693 (1976) ................0.0cc0eeeeees 9

Preiser v. Rodriguez, 411 U.S. 475 (1973)................ 14

Rehberg v. Paulk, 132 S. Ct. 1497 (2012) .........ccc00000+. 9

Sapp v. Ford Motor Co., 687 S.E.2d 47

Se Ce icensacvsnttiieateneinniciisinnednmemnidnbienninnserdevcunesets 8

Scheuer v. Rhodes, 416 U.S. 232 (1974) ................... 14

Screws v. United States, 325 U.S. 91 (1945) .............. i]

Swartz v. Insogna, 704 F.3d 105

I hicicrcelnttcasitenncrensscenbecesenenacsnuiesionenmbsinne 17

Wallace v. Kato, 549 U.S. 384 (2007)......14, 15, 20, 21

Washington v. Davis, 426 U.S. 229 (1976)............... 22

Wilson v. Garcia, 471 U.S. 261 (1985)...................... 23

Wyatt v. Cole, 504 U.S. 158 (1992)..................seseese00 10

Constitution, Statutes, and Legislative History

es Ce I, BD vcceccscccsnccontectoanes 1, 9, 16, 21, 22

SOT, GE, GIG, TET ccceccnescnsccscovecncesssesee 2, 6, 7, 8,9

ET ciccisnsenniacdcententniosenienindeientaiane passim

v

TABLE OF AUTHORITIES—continued

Sheldon H. Nahmod, Section 1983 and the

“Background” of Tort Liability, 50 Ind.

Page(s)

Civil Rights Act of 1871, 17 Stat. 13

EERIE WERT SEC Sh Se CRE 6, 7

Cong. Globe, 42d Cong., Ist Sess. (1871).................... 6

Cong. Globe, 42d Cong., Ist Sess. App.

aaa cine chain aied deadineee hhaahdatinsiatbsiosiniadnlaiobiiine 7

Other Authorities

Charles F. Abernathy, Section 1983 and

Constitutional Torts, 77 Geo. L.J. 1441

a a oi eipniedinanbeusclion 11

Dan B. Dobbs et al., The Law of Torts

EET OS ES ET Se 8, 19

W. Page Keeton et al., Prosser and Keeton

on the Law of Torts (5th ed. 1984) ............... 17, 20

Sheldon H. Nahmod, Civil Rights and Civil

Liberties Litigation: The Law of Section

EERIE ES ANE 3

Aen ITE inn ccinsuscibtinehcnbannagiinniiavicamnidsnicasintiion 10, 11

BRIEF OF SHELDON H. NAHMOD AS AMICUS

CURIAE IN SUPPORT OF RESPONDENTS

INTEREST OF THE AMICUS CURIAE

Sheldon H. Nahmod is Distinguished Professor of

Law at ITT Chicago-Kent College of Law.' His princi-

pal field of study and teaching is the interrelation-

ship of 42 U.S.C. § 1983 and constitutional law. In

1979, he wrote the first treatise devoted exclusively

to § 1983, which is now a three-volume work in its

fourth edition. In addition, he has written many arti-

cles addressing the proper interpretation and appli-

cation of § 1983. He has lectured on § 1983 to federal

judges under the auspices of the Federal Judicial

Center. He has also consulted with numerous plain-

tiffs’ and defendants’ attorneys on § 1983 issues.

Further, he has argued § 1983 cases before this

Court and the Courts of Appeals for the First, Sev-

enth, Eighth, and Tenth Circuits. See, e.g., Chardon

v. Fumero Soto, 462 U.S. 650 (1983). And this Court

has cited his publications in § 1983 decisions. See,

e.g., Carey v. Piphus, 435 U.S. 247, 255 n.9 (1978).

Professor Nahmod’s professional dedication to

the proper understanding of § 1983 makes him par-

ticularly interested in the Court’s decision in this

case. He takes no position on the Fourth Amendment

issue posed in the Question Presented. However, he

wishes to impress upon the Court his conviction that

the ultimate outcome in this case must be firmly

1 Pursuant to Rule 37.6, amicus affirms that no counsel for a

party authored this brief in whole or in part and that no person

other than amicus and its counsel made a monetary contribu-

tion to its preparation or submission. The parties’ letters con-

senting to the filing of this brief have been filed with the Clerk's

office.

2

grounded on § 1983, rather than the common law of

malicious prosecution, so that all persons have effec-

tive access to this vital tool for protecting their con-

stitutional rights.

INTRODUCTION AND SUMMARY OF

ARGUMENT

Over twenty years ago, this Court acknowledged

“an embarrassing diversity of judicial opinion” on

“the extent to which a claim of malicious prosecution

is actionable under § 1983.” Albright v. Oliver, 510

U.S. 266, 270 n.4 (1994) (plurality opinion). This em-

barrassment continues, seriously impeding the vin-

dication of the Fourteenth Amendment and other

constitutional rights. The time has come to answer

the fundamental issues raised by the Question Pre-

sented, which as the certiorari petition recognized (at

10-11, 21, 25-26) necessarily include whether the el-

ements of the common law malicious prosecution

tort—and the favorable termination element in par-

ticular—apply to Petitioner’s § 1983 claim.

The only defensible answer to that crucial statu-

tory interpretation question is that the common law

elements of malicious prosecution should play no in-

dependent role in determining the scope of claims

under 42 U.S.C. § 1983. Section 1983 created a fed-

eral statutory remedy for constitutional violations

perpetrated by state actors, whereas malicious pros-

ecution is a common law tort. To describe a § 1983

claim as “malicious prosecution” is a misnomer that

directs attention away from the real inquiry—the el-

ements of the constitutional provision underlying the

particular § 1983 claim—and improperly focuses in-

stead on the elements of the malicious prosecution

tort. In this respect the Seventh Circuit gets it right

while other circuits do not: “[I]f a plaintiff can estab-

3

lish a violation of the fourth (or any other) amend-

ment there is nothing but confusion to be gained by

calling the legal theory ‘malicious prosecution.”

Newsome v McCabe, 256 F.3d 747, 751 (7th Cir.

2001).

Attempts to analogize between so-called § 1983

“malicious prosecution” claims and the common law

elements of malicious prosecution have caused a

great deal of confusion in the lower courts. The en

banc Fifth Circuit described its own “precedent gov-

erning § 1983 malicious prosecution claims” as “a

mix of misstatements and omissions” that has led to

“inconsistencies and difficulties.” Castellano v.

Fragozo, 352 F.3d 939, 949 (5th Cir. 2003) (en banc).

And the Fifth Circuit acknowledged that it is “not

alone in this drift. Other circuits have traveled un-

even paths as well, and numerous approaches have

developed after Albright.” Ibid.; see generally Shel-

don H. Nahmod, Civil Rights and Civil Liberties Lit-

igation: The Law of Section 1983 §§ 3:66-3:67 (4th ed.

2015) (collecting and analyzing post-Albright cases in

the circuits, and arguing that malicious prosecution

law should not dictate scope of § 1983).

Petitioner tries to take advantage of this confu-

sion to save his § 1983 “malicious prosecution” claim

from dismissal on statute of limitations grounds. He

maintains that § 1983 imports the “favorable termi-

nation” element of common law malicious prosecu-

tion, which would have prevented accrual of his

claim until he was released and the charges against

him dropped. Such a maneuver cannot be squared

with § 1983 or this Court’s precedents.

1. Contrary to the rule that Petitioner needs to

prevail, the elements of common law torts like mali-

cious prosecution do not dictate the elements of a

4

§ 1983 claim. Nothing in the text of § 1983, its legis-

lative history, or its purposes indicates that Congress

intended to merely duplicate common law torts. Sec-

tion 1983 by its own language was enacted to enforce

the “rights, privileges, or immunities secured by the

Constitution and laws” of the United States. 42

U.S.C. § 1983. Regardless of any superficial similari-

ty between particular § 1983 actions and particular

tort actions, the vital constitutional interests served

by § 1983 are distinct from and independent of the

principles that animate tort law.

The Court has consistently reaffirmed that con-

stitutional deprivations are central to § 1983 claims.

Thus, the statutory cause of action may be interpret-

ed against the “background of tort liability,” but only

to implement § 1983, not to define its scope. Monroe

v. Pape, 365 U.S. 167, 187 (1961), overruled on other

grounds by Monell v. Dep't of Soc. Servs. of City of

N.Y., 436 U.S. 658 (1978). At most, common law

principles can fill gaps as necessary to effectuate a

damages remedy for constitutional violations.

2. Importing the common law elements of mali-

cious prosecution into § 1983 would be particularly

ill-advised. The last two decades have demonstrated

that attempts to do so result only in confusion. In-

deed, the fundamental disconnect between the ele-

ments of a § 1983 claim and the clements of a com-

mon law malicious prosecution claim virtually guar-

antees confusion. In addition, the entire enterprise of

attempting to interpret a supposedly uniform federal

cause of action based on tort law that varies not only

from one state to another, but from the time of

§ 1983’s enactment in 1871 to the present day, is just

not workable.

5

Finally, as a matter of § 1983 law and policy,

there is no good reason to make any of the tradition-

al elements of malicious prosecution into elements of

Petitioner's § 1983 claim for unlawful pretrial deten-

tion. Several of the malicious prosecution elements

(including the favorable termination requirement)

contradict established § 1983 precedents. And others

(such as the absence of probable cause) make sense

only to the extent that the underlying constitutional

right requires their consideration. In short, this

Court’s interpretation of § 1983 should not be gov-

erned by the common law tort of malicious prosecu-

tion.

ARGUMENT

I. SECTION 1983 DOES NOT FEDERALIZE

STATE TORT LAW.

A. The Text, History, And Purposes Of

§ 1983 Demonstrate That Congress Did

Not Intend To Duplicate Common Law

Causes Of Action.

Section 1983 is a federal civil cause of action for

the enforcement of rights granted by the Constitu-

tion and federal law. Nothing in its straightforward

text, legislative history, or purposes indicates that it

federalizes common law torts such as malicious pros-

ecution.

1. The text of § 1983 does not mention state tort

law: “Every person who, under color of any statute,

oidinance, regulation, custom, or usage, of any State

or Territory or the District of Columbia, subjects, or

causes to be subjected, any citizen of the United

States or other person within the jurisdiction thereof

to the deprivation of any rights, privileges, or im-

munities secured by the Constitution and laws, shall

6

be liable to the party injured in an action at law, suit

in equity, or other proper proceeding for redress

... "42 U.S.C. § 1983.

This language identifies a proper plaintiff and

requires injury to the plaintiff. It also specifies that

the defendant be a “person” who, while acting under

color of state law, causes the plaintiff to be deprived

of “rights, privileges, or immunities secured by the

Constitution and laws” of the United States. But

nothing in § 1983's text directs courts to reflexively

import state tort law. To the contrary, the statute

tells courts to look to the Constitution and other fed-

eral law in defining the cause of action.

2. The legislative history of the provision enact-

ing what is now § 1983—4 1 of the Civil Rights Act of

1871—confirms that Congress had no intention of

duplicating existing common law causes of action in

§ 1983. See 17 Stat. 13. “The history of the Act is re-

plete with statements indicating that Congress

thought it was creating a remedy as broad as the

protection that the Fourteenth Amendment affords

the individual,” Lugar v. Edmondson Oil Co., 457

U.S. 922, 934 (1982)—linking the cause of action to

the Constitution, not the common law. See also

Moneii v. Dep't of Soc. Servs. of City of N.Y., 436 U.S.

658, 683-686 & n.45 (1978) (recounting history

“corroborat[ing] that Congress intended to give a

broad remedy for violations of federally protected civ-

il nights”).

Proponents of § 1 of the Act consistently empha-

sized its relationship to the Constitution. One Sena-

tor described § 1 as a statute that “reénact[s] the

Constitution.” Cong. Globe, 42d Cong., Ist Sess. 569

(1871) (Sen. Edmunds). And the author of § 1 of the

Fourteenth Amendment stated that the purpose of

7

§ 1983 is “the enforcement. . of the Constitution on

behalf of every individual citizen of the Republic

to the extent of the rights guarantied [sic] to him by

the Constitution.” Id., 1st Sess. App. 81 (Rep. Bing-

ham); see Monell, 436 U.S. at 686 n.45. Even the

Act’s critics described § 1 of the Act as “authoriz[ing]

any person who is deprived of any right, privilege, or

immunity secured to him by the Constitution of the

United States, to bring an action against the wrong-

doer in the Federal Courts.” Cong. Globe, 42d Cong.,

lst Sess. App. 216 (1871) (Sen. Thurman) (emphasis

added).

Thus, the legislative history demonstrates that a

§ 1983 claim is defined by the constitutional right,

privilege, or immunity invoked.

3. Common law torts and § 1983 damages ac-

tions bear a superficial likeness because both use the

compensatory and deterrent effects of monetary

damages “to protect persons from injuries to particu-

lar interests.” Carey v. Piphus, 435 U.S. 247, 254-257

(1978); see also Memphis Cmty. Sch. Dist. v.

Stachura, 477 U.S. 299, 306-307 (1986). Indeed, the

compensation function is “[t}he cardinal principle of

damages in Anglo-American law.” Carey, 435 U.S. at

254-255. But the “particular interests” protected by

§ 1983 typically diverge from the “particular inter-

ests” protected by tort law.

The unique interests protected by § 1983 are evi-

dent in the very title of its enacting statute: “An Act

to enforce the Provisions of the Fourteenth Amend-

ment to the Constitution of the United States, and for

other Purposes.” 17 Stat. 13 (1871); see also Monroe,

365 U.S. at 171 (§ 1983's “purpose is plain from the

title” of the statute). Congress was concerned that

“state laws might not be enforced” and constitutional

8

rights—particularly those enshrined in the newly

adopted Fourteenth Amendment—“might be denied

by the state agencies.” Monroe, 365 U.S. at 180.

Thus, § 1983 “provide{s] a remedy in the federal

courts supplementary to any remedy any State might

[provide]” because state law, including state tort law,

does not adequately protect constitutional interests.

McNeese v Bd. of Educ. for Cmty. Unit Sch. Dist.

187, Cahokia, Ill., 373 U.S. 668, 671-672 (1963).

Specifically, § 1983 provides a means for individ-

uals to vindicate equal protection interests in free-

dom from racial and other invidious discrimination

and due process interests in fair process and in cer-

tain fundamental rights. See U.S. Const. amend.

XIV These are interests in the rights of individuals

against state and local governments and those acting

under color of state law, and they lack direct paral-

lels with the common law tort system, which is pri-

marily concerned with the competing interests of in-

dividuals. See Daniels v. Williams, 474 U.S. 327, 332

(1986) (“Our Constitution deals with the large con-

cerns of the governors and the governed, but it does

not purport to supplant traditional tort law in laying

down rules of conduct to regulate liability for injuries

that attend living together in society.”).

Unlike § 1983, state tort law focuses exclusively

on mediating common law interests in persons and

property. See, e.g., Sapp v. Ford Motor Co., 687

S.E.2d 47, 49 (S.C. 2009) (“Tort law .. seeks to pro-

tect safety interests and is rooted in the concept of

protecting society as a whole from physical harm to

person or property.”); 1 Dan B. Dobbs et al., The Law

of Torts § 3, at 5 (2d ed. 2011) (hereinafter Dobbs’

Law of Torts) (observing that tort law “give[s] the

greatest protection to physical security of persons

9

and property,” while also protecting emotional and

economic security in limited circumstances).

The interests protected by common law torts are

surely important and may overlap in some circum-

stances with § 1983's interest in protecting constitu-

tional rights. But they will not always overlap, and

common law interests may, in some situations, be in-

consistent with constitutional principles. As the

Court observed in a parallel context in Bivens v. Six

Unknown Named Agents, “[t]he interests protected

by state laws and those protected by the Fourth

Amendmen|t]” and other constitutional provisions

“may be inconsistent or even hostile.” 403 U.S. 388,

394 (1971) (giving as an example the different legal

effect of consent in common-law trespass and the

Fourth Amendment). To treat them as identical is to

ignore § 1983's focus on enforcing the Constitution.

B. This Court Has Consistently Recognized

That Tort Law Does Not Determine The

Scope Of § 1983.

This Court has never held that tort law deter-

mines the elements of a § 1983 claim. To the contra-

ry, the Court has emphasized that § 1983 must not

be read to permit the Fourteenth Amendment (in-

cluding incorporated provisions of the Bill of Rights)

to become a “font of tort law to be superimposed upon

whatever systems may already be administered by

the States.” Paul v. Davis, 424 U.S. 693, 701 (1976);

accord Rehberg v. Paulk, 132 S. Ct. 1497, 1504 (2012)

(§ 1983 is not “a federalized amalgamation of pre-

existing common-law claims, an all-in-one federal

claim encompassing the torts of assault, trespass,

false arrest, defamation, malicious prosecution, and

more”); Screws v. United States, 325 U.S. 91, 109

(1945) (interpreting the criminal counterpart to

10

§ 1983 and concluding that “Congress. did not un-

dertake to make all torts of state officials federal

crimes’).

The Court has defined the two “essential ele-

ments” of a § 1983 claim, derived from the text, his-

tory, and purpose of the statute, as: “(1) whether the

conduct complained of was committed by a person

acting under color of state law; and (2) whether this

conduct deprived a person of rights, privileges, or

immunities secured by the Constitution or laws of

the United States.” Parratt v. Taylor, 451 U.S. 527,

535 (1981), overruled in part on other grounds by

Daniels, 474 U.S. 327. Common law tort require-

ments control neither of those elements.

To be sure, as discussed below, the Court has re-

ferred to background principles of tort law to help

fashion a workable action for damages arising from

constitutional violations by state actors. See Sheldon

H. Nahmod, Section 1983 and the “Background” of

Tort Liability, 50 Ind. L.J. 5, 32 (1974) (hereinafter

Nahmod, Tort Liability) (“To the extent that tort

concepts of duty, proximate cause, and cause in fact,

as well as various defenses such as consent may as-

sist a court by analogy in deciding 1983 cases, well

and good. But courts in 1983 cases must be careful

not to let tort law alone determine 1983 liability

"). However, the Court has repeatedly cautioned

against unthinking importation of common law re-

quirements, especially where § 1983 or the relevant

constitutional provisions counsel against it. See Wy-

att v Cole, 504 U.S. 158, 164 (1992) (“irrespective of

the common law support, we will not recognize an

immunity available at common law if § 1983's history

or purpose counsel against applying it in § 1983 ac-

tions”); Anderson v. Creighton, 483 U.S. 635, 645

11

(1987) (“we have never suggested that the precise

contours of official immunity can and should be slav-

ishly derived from the often arcane rules of the com-

mon law”).

1. In its seminal decision in Monroe v. Pape—

which applied ordinary proximate causation princi-

ples to § 1983 actions while rejecting a specific intent

requirement—this Court declared that § 1983

“should be read against the background of tort liabil-

ity that makes a man responsible for the natural

consequences of his actions.” 365 U.S. at 187. The

Court’s reference to the “background of tort liability”

unfortunately caused confusion in many courts, some

of which treated it as an invitation to import tort law

requirements of negligence and gross negligence. See

Charles F. Abernathy, Section 1983 and Constitu-

tional Torts, 77 Geo. L.J. 1441, 1447-1448 (1989)

(noting that Monroe “led lower courts on a fool's er-

rand”); Nahmod, Tort Liability, supra, at 12-13 (ob-

serving that lower courts have “seized upon” the lan-

guage but given “little consideration. to the back-

ground of 1983 liability”).

After twenty years of confusion, the Court clari-

fied that § 1983 imposes no independent state-of-

mind requirement as a matter of statutory interpre-

tation. See Parratt, 451 U.S. at 535. Instead, any

state-of-mind requirements come from the underly-

ing constitutional provisions allegedly violated. See

Daniels, 474 U.S. at 330-336 (violation of due process

clause requires more than negligence). Importing

any of the common law elements of malicious prose-

cution into § 1983 “malicious prosecution” claims

would repeat the earlier mistake of importing com-

mon law negligence and gross negligence principles

into § 1983 after Monroe.

12

2. When this Court has looked to common law

tort principles in considering the elements of, and de-

fenses to, a § 1983 action, it has been highly discrim-

inating. The Court’s borrowing from the common law

occurs in areas such as causation, damages, and im-

munity where consideration of common law princi-

ples can be helpful in shaping a damages action

against state actors for constitutional violations. But

even in those areas, the Court has refused to incor-

porate many common law tort rules.

Thus, in Carey v. Piphus, 435 U.S. 247, 254-266

(1978), the Court ruled that § 1983 damages for a

procedural due process violation shared the compen-

satory purpose of tort damages, but it refused to

permit the kind of presumed damages that are avail-

able in some tort actions. The Court explained that

“fi]Jt is not clear . that common-law tort rules of

damages will provide a complete solution to the

damages issue in every § 1983 case” because some-

times “the interests protected by a particular consti-

tutional right may not also be protected by an analo-

gous branch of the common law torts.” Jd. at 258. “In

order to further the purpose of § 1983,” the Court

therefore held that “the rules governing compensa-

tion for injuries caused by the deprivation of consti-

tutional rights should be tailored to the interests

protected by the particular right in question.” Jd. at

258-259. In the Court’s view, proof of actual damages

best comported with the purposes of procedural due

process protections.

Other damages and causation decisions have

taken a similarly limited approach. See Memphis

Cmty., 477 U.S. at 310, 311 n.14 (1986) (“damages

based on the abstract ‘value’ or ‘importance’ of con-

stitutional rights are not a permissible element of

13

compensatory damages” in § 1983 cases notwith-

standing common law decisions supporting such

damages); Hartman v. Moore, 547 U.S. 250, 258-266

(2006) (declining to rely on common law analogues in

adopting no-probable-cause requirement for Bivens

First Amendment retaliatory prosecution claim:

while “we certainly are ready to look at the elements

of common-law torts when we think about elements

of actions for constitutional violations, . the com-

mon law is best understood here more as a source of

inspired examples than of prefabricated components

of Bivens torts”); Monell, 436 U.S. at 691-695 (reject-

ing § 1983 municipal liability under common law

respondeat superior theory as inconsistent with

§ 1983's purpose and history).

Section 1983 immunity rulings likewise borrow

only selectively from common law tort rules. Only

“Iw]here the immunity claimed by the defendant was

well established at common law at the time § 1983

was enacted, and where its rationale was compatible

with the purposes of the Civil Rights Act” has the

Court read § 1983 to incorporate the immunity. Ow-

en v. City of Indep., Mo., 445 U.S. 622, 638 (1980);

see also Imbler v. Pachtman, 424 U.S. 409, 424

(1976) (prosecutorial immunity case where Court

asked “whether the same considerations of public

policy that underlie the common-law rule likewise

countenance absolute immunity under § 1983”).

Consistent with that approach, the Court has re-

peatedly refused to follow common law immunity

principles in defining § 1983 immunities. See Malley

v. Briggs, 475 U.S. 335, 341 (1986) (recognizing that

objective reasonableness standard for qualified im-

munity departs from common law malice require-

ment); Owen, 445 U.S. at 644, 647-650 (rejecting

14

immunity from compensatory damages liability for

municipalities despite common law doctrines grant-

ing such immunity); Imbler, 424 U.S. at 424-427

(granting prosecutors absolute immunity even

though some jurisdictions provided only qualified

immunity under the common law); Scheuer v.

Rhodes, 416 U.S. 232, 241-243 (1974) (rejecting abso-

lute immunity for high-ranking executive officials

even though they sometimes had absolute immunity

under the common law).

3. Nothing in Heck v. Humphrey, 512 U.S. 477

(1994), requires a different approach for § 1983 “ma-

licious prosecution” claims. Heck analogized to the

elements of common law malicious prosecution in

adopting a favorable termination requirement for

§ 1983 suits that necessarily challenge a plaintiffs

criminal conviction or sentence. Id. at 483-485. But

the Court adopted that requirement not because it is

an element of the common law tort. Rather, it did so

because Congress determined that all challenges to a

conviction or sentence—whatever their constitution-

al basis, and even when they seek damages—should

be pursued through the specialized habeas corpus

remedy available tc convicted prisoners, not through

general § 1983 remedies. See id. at 481-482, 484-485

& n.4; see also Preiser v. Rodriguez, 411 U.S. 475,

488-490 (1973) (recognizing same principle). Heck is

emphatically not a § 1983 “malicious prosecution”

case.

Indeed, when the Court subsequently ruled that

the Heck favorable termination rule does not apply

when there is no existing criminal conviction, it

made clear that it was resolving “a question of feder-

al law that is not resolved by reference to state law.”

Wallace v. Kato, 549 U.S. 384, 388 (2007). The Court

15

also reaffirmed that Heck rested on Congress's de-

termination that federal habeas corpus is the appro-

priate remedy when prisoners attack their state

court convictions or sentences. Jd. at 392-393 (citing

Heck, 512 U.S. at 482).

Il. THIS COURT SHOULD NOT IMPORT THE

ELEMENTS OF COMMON LAW MaALI-

CIOUS PROSECUTION INTO PETITION-

ER’S § 1983 CLAIM FOR UNLAWFUL PRE-

TRIAL DETENTION.

There are no persuasive reasons for the Court to

use the elements of common law malicious prosecu-

tion to define Petitioner’s § 1983 “malicious prosecu-

tion” claim for unlawful pretrial detention. In fact,

the opposite is true: importing those elements into

§ 1983 law would interfere with the vindication of

constitutional rights, create a host of practical prob-

lems, and contradict established § 1983 law and poli-

cy. Accordingly, the Court should not permit Peti-

tioner to invoke the favorable termination element of

the malicious prosecution tort that his certiorari pe-

tition (at 21) acknowledges is necessary to save his

§ 1983 claim from dismissal on statute of limitations

grounds.

A. Common Law Elements Of Malicious

Prosecution Provide A Poor Foundation

For A § 1983 Claim.

Slavish adoption of the common law elements of

malicious prosecution improperly shifts the focus

away from the constitutional rights, privileges, and

immunities at the heart of any § 1983 action. At the

same time, it creates hopeless indeterminacy given

the differences in the common law across jurisdic-

tions and time.

16

1. Even to speak in terms of a § 1983 “malicious

prosecution” claim distorts the analysis and directs

attention away from the real inquiry—the require-

ments of § 1983 and the underlying constitutional

provision allegedly violated. Yet many lower courts

have apparently misunderstood this Court’s ap-

proach permitting consideration of background tort

principles as an instruction that they must start with

the tort elements of malicious prosecution before

considering the constitutional right at issue. See,

e.g., Castellano, 352 F.3d at 945 (“we first look at the

state law tort of malicious prosecution and then look

to the enforcement of constitutional protections’).

Indeed, several courts of appeals have held that

plaintiffs in § 1983 “malicious prosecution” cases

must establish all of the elements of the common law

tort of malicious prosecution and a violation of their

constitutional rights. See, e.g., Grider v. City of Au-

burn, Ala., 618 F.3d 1240, 1256 (11th Cir. 2010).

That approach leads to disturbing results com-

pletely at odds with § 1983's focus on the vindication

of constitutional rights. It seriously under-protects

constitutional rights because plaintiffs who can show

a deprivation of their constitutional rights by a state

actor causing compensable injury might nevertheless

be unable to state a claim if they cannot establish all

of the common law elements of malicious prosecu-

tion. As the United States acknowledges, the ele-

ments of malicious prosecution “are not a perfect fit”

with claims for violations of constitutional provisions

like the Fourth Amendment. See U.S. Br. 24 n.15;

see also Alschuler Br. 16 (“confusion arises” because

“the common-law tort and the constitutional provi-

sion address different injuries”).

17

The far better and simpler approach is to deem

irrelevant the malicious prosecution elements and

instead ask: (1) what does the applicable constitu-

tional provision require to establish unlawful pretrial

detention?; and (2) what does § 1983 require to es-

tablish damages liability? It may turn out that some-

thing akin to a common law malicious prosecution

element still must be pleaded and proved in a partic-

ular case. But that would be a consequence of consti-

tutional law, not state tort law. In other words, “if a

plaintiff can establish a violation of the fourth (or

any other) amendment there is nothing but confusion

to be gained by calling the legal theory ‘malicious

prosecution.” Newsome, 256 F.3d at 751.

2. In addition, it is inappropriate to use the

common law of torts as the starting point for defining

the elements of § 1983 claims because there is no one

common law of torts from which to begin. Common

law torts are creations of state law and their ele-

ments must therefore be determined with respect to

the laws of a particular state. See, e.g., Swartz v.

Insogna, 704 F.3d 105, 111-112 (2d Cir. 2013) (draw-

ing elements of § 1983 “malicious prosecution” claim

from New York law). And the elements of malicious

prosecution vary among the states.

For example, one element of malicious prosecu-

tion is the initiation of a criminal proceeding against

the plaintiff by the defendant. Although a majority of

states hold that this element is satisfied even if the

prosecuting court had no jurisdiction over the plain-

tiff, some states do not. See W Page Keeton et al.,

Prosser and Keeton on the Law of Torts 871 (5th ed.

1984) (hereinafter Prosser and Keeton). Thus plain-

tiffs whose constitutional rights are violated when

they are detained, charged, and prosecuted for an of-

18

fense that is not recognized by the criminal law could

satisfy the elements of malicious prosecution and

state a claim under § 1983 in Arizona, but not in

North Carolina. Compare George v. Williams, 222 P

410, 411 (Ariz. 1924), with Moser v. Fulk, 74 S.E.2d

729, 731 (N.C. 1953).

States also vary in their approach to the favora-

ble termination element of malicious prosecution.

Some states require a termination suggesting inno-

cence, while others find a favorable termination in

any sort of dismissal, even on procedural grounds.

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

664 (10th Cir. 2016) (Gorsuch, J., concurring). It

would be a strange rule indeed that would allow the

substantive requirements for using a federal statute

to assert federal constitutional rights to vary accord-

ing to state substantive law.

The common law of malicious prosecution has

changed over time as well. When § 1983 was enacted,

a “defendant’s conviction, under Reconstruction-era

common law, dissolved his claim for malicious prose-

cution because the conviction was regarded as

irrebuttable evidence that the prosecution never

lacked probable cause.” Heck, 512 U.S. at 496 (Sout-

er, J., concurring). Thus, deriving the elements of a

§ 1983 claim for unlawful pretrial detention from the

common law tort of malicious prosecution “would log-

ically drive one to the position, untenable as a matter

of statutory interpretation (and, to be clear, dis-

claimed by the Court), that conviction of a crime

wipes out a person’s § 1983 claim for damages for

unconstitutional conviction or postconviction con-

finement.” Ibid.

Looking instead to the modern law of malicious

prosecution does not solve the problem either. Not

19

only would this modern law be completely outside

the knowledge of the authors of § 1983, but, as the

Petitioner's amici point out, many states have

changed their approach to malicious-prosecution ac-

tions in recent years. See Nat’! Police Accountability

Project Br. 6-19.

B. There Is No Sound Reason To Adopt, As

A Matter Of § 1983 Law And Policy, Any

Of The Common Law Elements Of Mali-

cious Prosecution.

The common law elements of malicious prosecu-

tion often are defined as (1) initiation of legal pro-

ceedings against the plaintiff, (2) favorable termina-

tion of those proceedings, (3) absence of probable

cause, and (4) malice. See 3 Dobbs’ Law of Torts

§ 586, at 388-389. Contrary to the position that Peti-

tioner takes to save his claim from the statute of lim-

itations, none of these elements should, as a matter

of § 1983 law and policy, be deemed an element of

Petitioner’s unlawful detention claim.

1. The initiation of legal proceedings is not an es-

sential part of an unlawful detention claim. Some

such claims are based on detention before legal pro-

ceedings. See, e.g., Parsons v. City of Pontiac, 533

F.3d 492, 504 (6th Cir. 2008). Others are based on

detention after legal proceedings. See, e.g., Hernan-

dez-Cuevas v. Taylor, 723 F.3d 91, 99-100 (1st Cir.

2013). To be sure, an issue in this case is whether the

initiation of legal process affects the constitutional

basis for an unlawful detention claim. But that fact

merely confirms that any requirement of initiation of

legal proceedings would come from the Constitution,

not § 1983.

20

Adoption of such a requirement could also need-

lessly complicate the law. As discussed above, states

disagree on whether the initiation of criminal pro-

ceedings without proper jurisdiction satisfies this el-

ement. See Prosser and Keeton 871. Importing this

element from the common law tort would raise diffi-

cult questions of whether and how the initiation of

an invalid prosecution could trigger § 1983 liability.

See Part ILA, supra.

2. Making the termination of criminal proceed-

ings in favor of the accused a prerequisite for all

§ 1983 “malicious prosecution” suits alleging unlaw-

ful pretrial detention would contradict established

precedents of this Court. Under Heck, of course, a

plaintiff who has been criminally convicted cannot

assert a claim for unlawful detention that, if success-

ful, would undermine that conviction, until he or she

obtains a favorable termination of the criminal pro-

ceedings. But Wallace held that the Heck bar applies

only to plaintiffs with existing convictions. 549 U.S.

at 393. As the Court observed, Ҥ 1983 actions, unlike

the tort of malicious prosecution which Heck took as

its model, sometimes accrue before the setting aside

of—indeed, even before the existence of—the related

criminal conviction.” Id. at 394 (citation omitted).

In this case—where Petitioner was never con-

victed of a crime related to his allegedly unlawful de-

tention—adopting a favorable termination require-

ment would be inconsistent with Wallace.”

2 In its brief supporting Petitioner, the United States draws the

wrong lessons from Heck (and, by extension, Wallace). See also

Alechuler Br. 19 n.7 (adopting the same mistaken reading of

Heck). The government argues that the common law rationales

for a favorable termination requirement mean that favorable

termination “similarly should be required before the claimant is

21

3. Absence of probable cause frequently is at is-

sue in § 1983 cases alleging unlawful pretrial deten-

tion. But that is not because it is a common law ele-

ment of malicious prosecution. Rather, constitutional

principles may require consideration of probable

cause. Thus, in an unlawful detention case based on

the Fourth Amendment, the absence of probable

cause would likely be an element. See, e.g., Gerstein

v. Pugh, 420 U.S. 103, 126 (1975); see also Hartman,

547 U.S. at 258, 265-266 (requiring proof of no-

probable-cause in Bivens First Amendment retaliato-

ry prosecution case as a matter of constitutional tort

causation policy, not because of any common law tort

rule).

4. Adopting the malice element of common law

malicious prosecution, as a matter of § 1983 law,

would be flatly inconsistent with this Court’s holding

that, as a matter of statutory interpretation,

Ҥ 1983 contains no state-of-miud requirement

independent of that necessary to state a violation of

the underlying constitutional right.” Daniels, 474

U.S. at 329-330. Requiring § 1983 plaintiffs to estab-

lish the malice element of malicious prosecution

would improperly inject malice into the constitution-

al analysis and would be inconsistent with the state-

of-mind requirements of many constitutional rights.

See, e.g., Graham v. Connor, 490 U.S. 386, 397

(1989) (Fourth Amendment analysis looks to objec-

permitted to challenge the probable cause for his detention”

pursuant to legal process. U.S. Br. 24-25 n.16. But it never ex-

plains why a rule founded on the conflict between § 1983 and

federal habeas law when there is a state court “conviction or

sentence,” Heck, 512 U.S. at 486-487, should also apply when

there has been no conviction or sentence. Where there is no

conviction, Wallace makes abundantly clear that Heck’s accrua!

rule does not apply. See Wallace, 549 U.S. at 393-394.

22

tive reasonableness “without regard” to “underlying

intent or motivation”); Washington v. Davis, 426 U.S.

229, 239 (1976) (purposeful discrimination, not mal-

ice, required for equal protection violation).

Petitioner's amici who address the issue agree

that the common law element of malice has no place

in § 1983 claims. The United States, while advocat-

ing an “intent” requirement, concedes that this ele-

ment “is not directly akin to the common-law ele-

ment of ‘malice.” U.S. Br. 25 n.17. And the National

Association of Criminal Defense Lawyers completely

rejects the common law malice element. It correctly

argues that “nothing in the text of the Constitution

or § 1983 warrants importing a subjective inquiry in-

to malice that is foreign to Fourth Amendment anal-

ysis.” NACDL Br. 22.

5. Finally, it must be emphasized that eliminat-

ing malicious prosecution elements from the § 1983

analysis would treat § 1983 plaintiffs and § 1983 de-

fendants in an evenhanded manner. Eliminating

these elements would sometimes advantage § 1983

plaintiffs, sometimes § 1983 defendants, depending

on the facts of the particular case. Plaintiffs would

be relieved of the burdens of proving favorable ter-

mination, the absence of probable cause (unless the

Fourth Amendment were involved), and malice. As a

result, the protection of constitutional rights would

be directly advanced.

At the same time, defendants in non-Heck cases

would be able to focus on when the § 1983 cause of

action accrued for statute of limitations purposes,

without being concerned about a favorable termina-

tion requirement that unduly extended the limita-

tions period. This would reduce the risk of over-

protecting constitutional rights at the expense of the

23

important “policies of repose” furthered by statutes

of limitation. See Wilson v. Garcia, 471 U.S. 261, 271

(1985) (describing those policies in § 1983 statute of

limitations case: “Just determinations of fact cannot

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

memories of witnesses have faded or evidence is lost.

In compelling circumstances, even wrongdoers are

entitled to assume that their sins may be forgot-

ten.”).

Significantly, in Heck cases—where a § 1983

claim calls into question an existing conviction based

on law enforcement misconduct or other grounds—

eliminating malicious prosecution elements from the

§ 1983 analysis would not affect accrual. Under

Heck, such claims do not ordinarily accrue in any

event until after the conviction is overturned.

CONCLUSION

However the Court resolves the Fourth Amend-

ment issue posed in the Question Presented, the

Court should clarify and rationalize § 1983 jurispru-

dence by ending the § 1983 “malicious prosecution”

guessing game. As a matter of sound § 1983 interpre-

tation and policy, it should divorce the elements of

the tort of malicious prosecution from analysis of the

§ 1983 claim. These elements should be sent back

where they belong: to the common law of malicious

prosecution.

Because Petitioner states that he needs a favora-

ble termination requirement to prevail, the judgment

of the court of appeals upholding dismissal of his

claims should be affirmed.

24

Respectfully submitted.

JOSHUA D. YOUNT SHELDON H. NAHMOD

CHARLES M. WOODWORTH Counsel of Record

MICHAEL J. DOWNEY ITT Chicago-Kent College

Mayer Brown LLP of Law

71 South Wacker Drive 565 West Adams Street,

Chicago, IL 60606 Room 847

(312) 782-0600 Chicago, IL 60661

(312) 906-5261

snahmod@kentlaw.edu

Counsel for Amicus Curiae

AUGUST 2016