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

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AUG 10 20%

No. 14-9496 OFFICE OF THE CLERK |

IN THE

Supreme Court of the United States

ELIJAH MANUEL

Petitioner,

Vv.

CITY OF JOLIET, ET AL,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

BRIEF OF THE NATIONAL ASSOCIATION

OF COUNTIES, NATIONAL LEAGUE OF

CITIES, U.S. CONFERENCE OF MAYORS,

INTERNATIONAL CITY/COUNTY

MANAGEMENT ASSOCIATION, AND

INTERNATIONAL MUNICIPAL LAWYERS

ASSOCIATION, AS AMICI CURIAE

SUPPORTING RESPONDENTS

LISA SORONEN LAWRENCE ROSENTHAL

STATE AND LOCAL Counsel of Record

LEGAL CENTER CHAPMAN UNIVERSITY

444 N. Capitol Street, N.W. FOWLER SCHOOL OF LAW

Washington, D.C. 20001 One University Drive

(202) 434-4845 Orange, CA 92866

lsoronen@sso.org (714) 628-2650

rosentha@chapman.edu

August 10, 2016

SS EEE eee

Wil SON-EPES PRINTING CO. INC. — (202) 789-0096 — WASHINGTON, D.C. 20002

QUESTION PRESENTED

Whether a time-barred Fourth Amendment claim,

alleging that the plaintiff was arrested without proba-

ble cause, gives rise to a separate Fourth Amendment

“malicious prosecution” claim against the arresting

officers when prosecutors bring charges stemming

from the arrest, the limitations period for which begins

to run after the prosecution is concluded and the

arrestee is released from custody.

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TABLE OF CONTENTS

QUESTION PRESENTED ....................cccccceeceeeees

TABLE OF AUTHORITIES ......................::::00

INTEREST OF THE AMICI CURIAE................

STATEMENT OF THE CASE .....00000...0.0 eee

SUMMARY OF THE ARGUMENT ....................

I. A TIME-BARRED A FOURTH AMEND-

MENT CLAIM CANNOT BE REVIVED

BY RELABELING IT AS A CLAIM FOR

MALICIOUS PROSECUTION .................

A. A Fourth Amendment Claim Alleging

an Arrest Without Probable Cause

Accrues When the Arrestee Appears

ee atilndienameiniense

B. Judicially-Authorized Pretrial Detention

Following an Arrest Is Not a Continu-

ing Seizure by the Arresting Officers .

1. A Fourth Amendment Seizure

Does Not Continue Throughout

Pretrial Thebamtiae ..........cv.scccscceses.

2. An Arresting Officer’s Seizure

Ends When the Arrestee Appears

3. A Claim Accrues When a Defend-

ant’s Overt Act Injures a Plaintiff.

C. Powerful Policy Considerations Support

a Rule of Prompt Accrual for Fourth

Amendment Claims.......................06.-:.

(ili)

11

12

13

14

17

iv

TABLE OF CONTENTS—Continued

Il. A FOURTH AMENDMENT CLAIM IS

NOT PROPERLY CHARACTERIZED

AS AN ACTION FOR MALICIOUS

PAE 6 ie cansasscncexscnrsennncedaniaiaiaaaetl 20

A. Fourth Amendment Claims Differ

Fundamentally from a Claim for

Malicious Prosecution .......................+. 23

1. Fourth Amendment Claims Do

Not Turn on the Outcome of an

Pa CI an ccccinnccinsicccnscedcnetes 24

2. The Fourth Amendment Does Not

Address the Decision to Prosecute 25

3. Fourth Amendment Claims Do

Not Turn on Proof of Malice .......... 26

B. An Arresting Officer Is Not Akin to a

Complaining Witness Amenable to

Suit at Common Law for Malicious

POI oa isieciciccivincnincteisvicadsinsbumtabiame 27

C. Damages Attributable to a Criminal

Prosecution Are Not Available on a

Fourth Amendment Claim.................. 31

CREPE IEPET ‘ins svtnssecsndsvectoisedseabemaeiiniedenanal 36

Vv

TABLE OF AUTHORITIES

CASES Page(s)

Albright v. Oliver,

Me IE Drcccscccsccseccccnceonse 11-12, 26, 34

Arizona v. Evans,

SE ST re 7

Ashafa v. City of Chicago,

146 F.3d 459 (7th Cir. 1998)..................... 6

Ashcroft v. Iqbal,

a calale 2

Baker v. McCollan,

i cstisenibe 6, 33

Bay Area Laundry & Dry Cleaning

Pension Trust Fund v.

Ferbar Corp. of California, Inc.,

IT. cncsnnnnstecssescesnesises 7

Bell v. Wolfish,

EEE a nS 13

Brendlin v. California,

I. snndcensusntaceoces 12

Brigham City v. Stuart,

547 U.S. 386 (2006)........................... ae 27

Brown v. Felson,

Nee as sseunantenmsnnnonne 25

Burke v. McDonald,

572 F.3d 51 (1st Cir. 2009) ....................... 33

Burnet v. New York Central R. Co.,

i a icon nnaveses 14

California v. Hodari D.,

a HIE ITEP vevcexssesctccsncnsvescecesensesens 12

vi

TABLE OF AUTHORITIES—Continued

Page(s)

Carey v. Piphus,

I Te I Diccnccscisniivesnnesennemvaneinin 32

Chardon v. Fernandez,

454 U.S. 6 (1981) (per curiam) ................. 8

Delaware State College v. Ricks,

I ee Bi ircecnsccenctescencsncscrsecvennee 15

Devenpeck v. Alford,

I I I cnsessieususinnineinsainaaidaete 6

Dominguez v. Hendley,

545 F.3d 585 (7th Cir. 2008)..................... 33

Franks v. Delaware,

I xncnstsacenvsnscessnannntoonenses 27

Gabrelli v. SEC,

) Bo Be. |. ee 19

Gannett Co. v. DePasquale,

I, Bis inncnsnsetonsccseisitaransies 33

Gauger v. Hendle,

349 F.3d 354 (7th Cir. 2003), overruled

in part by Wallace v. City of Chicago,

440 F.3d 421 (7th Cir. 2006), affd sub

nom. Wallace v. Kato, 549 U.S. 384

Re TL ASPET SPREE RE RNR cr eo oe 32

Gerstein v. Pugh, '

ft 6 |. 13, 26, 32, 34

Green v. Brennan,

oe rere 7

Haring v. Prosise,

© 6g), 19, 25

Vii

TABLE OF AUTHORITIES—Continued

Page(s)

Havens Realty Corp. v. Coleman,

ee 15

Heck v. Humphrey,

gl Yt) | | eae 18, 21, 24, 31

Horton v. California,

GI Ce BP Conn vccccccnccccccccccssecccessess 32

Imbler v. Pachtman,

Oe a ie 30

Kalina v. Fletcher,

ETE eRe 21, 29

Kentucky v. King,

I 27

Kingsley v. Henrickson,

S| ee 13

Klehr v. A.O. Smith Co.,

RE SR a es 14-15

Kyles v. Whitley,

I 33

Lorance v. AT&T Technologies, Inc.,

Us cts nsmeccacnes 16

Lozano v. Montoya Alvarez,

ee 14

Malley v. Briggs,

RR a 6, 28

McDonald v. United States,

aE 18

viii

TABLE OF AUTHORITIES—Continued

Page(s)

Monroe v. Pape,

365 U.S. 167 (1961), overruled in part by

Monell v. Department of Social Services

of N.Y., 436 U.S. 658 (1978) ..................... 24

National Railroad Passenger Corp. v.

Morgan,

SH I ienttcisninsintisesinnenintatsnusnedinees 15

Order of Railway Telegraphers v.

Railway Express Agency, Inc.,

Be I iccttcrlantntsiciceedcconsdnnimancss 19

Pennsylvania Bd. of Prob. &

Parole v. Scott,

a 7

Rehberg v. Paulk,

132 S. Ct. 1497

EE oe 10, 16, 21, 28, 29, 30, 31

Richardson v. McKnight,

EES AE a 30

Rothgery v. Gillespie County,

I a csesedoseunsnen 33

Soldal v. Cook County,

ee ecuaneees 32

Tennessee v. Garner,

I 13

United Air Lines, Inc. v. Evans,

en I i eel dace 14

United States v. Calandra,

EE EE re 7, 26

ix

TABLE OF AUTHORITIES—Continued

Page(s)

United States v. Jacobsen,

SI... cu nindanvabaicbiacauncsbess 32

United States v. Leon,

468 U.S. 867 (19064)............................... 7, 24, 26

Villasana v. Wilhoite,

368 F.3d 976 (8th Cir. 2004)......0000000000000.. 33

Wallace v. Kato,

549 U.S. 384 (2007).............. 7-12, 15, 19, 22, 25

Wilson v. Garcia,

Sr i cipuisondnanion 20, 21

CONSTITUTION AND STATUTES

ee I ceubpicudantioniaons 8

U.S. Const. amend. VIII, cl.1.................0..... 13

no cimanaanins 4,5,6

55 ILCS 5/3-9005(a)(1) (2014)..............00...... 30

725 ILCS 5/109-1(a) (2014) ..................0...00e 14

725 ILCS 5/109-1(b)(4) (2014).......0.00000000000.. 14

ee ee ee PR ccorccccccccccccdsccesccccnces 30

MISCELLANEOUS

Abraham S. Goldstein, Prosecution: History

of the Public Prosecutor, in 3 Encyclopedia

of Crime and Justice (Sanford H. Kadish

8 ESE Aare ene 29

Calvin W. Corman, Limitation of Actions

x

TABLE OF AUTHORITIES—Continued

Page(s)

David R. Johnson, Policing the Urban

Underworld: The Impact of Crime on the

Development of the American Police,

IIIT cininnsssiiidenaieladtecheniadaendonens 28-29

Elaine A. Reynolds, Before the Bobbies:

The Night Watch and Police Reform in

Metropolitan London, 1720-1830 (1998).. 28

Francis Hilliard, The Law of Torts (3d ed.

Herbert Stephen, The Law Relating to Actions

for Malicious Prosecution (Horace M.

PRN Ey. CI istiteksentndhoasesnndicsnnsinensbenees 30

James F Richardson, Urban Police in the

United States (1974) ................ ee 29

Joanna C. Schwartz, Police Indemnification,

89 N.Y.U. L. Rev. 885 (2014).................... 35

Joel Prentiss Bishop, Commentaries on the

Non-Contract Law (1889) .....................066 23, 26

John Townshend, A Treatise on the Wrong

Called Slander and Libel ((3d ed. 1877)... 23, 30

Lawrence M. Friedman, Crime and

Punishment in American History (1993). 28, 29

Lawrence Rosenthal, Second Thoughts on

Damages for Wrongful Convictions, 85

Chi.-Kent L. Rev. 127 (2010).................... 31, 35

Martin L. Newell, A Treatise on the Law of

Malicious Prosecution, False Imprisonment,

and Abuse of Legal Process (1892)........... 27

xl

TABLE OF AUTHORITIES—Continued

Page(s)

Melville M. Bigelow, Leading Cases on the

ee Oe Pt I as srvcncccccdcnssccscsesccsescsoses 26

Restatement (Second) of Torts

Pin eilnnisdipscciiatieiccpimomsadiesnsianhesa 10, 22-23, 26, 28

Robert M. Ireland, Privately Funded

Prosecution of Crime in the Nineteenth-

Century United States, 39 Am. J. Leg.

BE Gi cidinnandtedsdscesotaginednnsestionainnes 29

Thomas M. Cooley, A Treatise on the Law

of Torts or the Wrongs Which Arise

Independent of Contract (1880) ............... 26-27

Thomas A. Repetto, The Blue Parade

INTEREST OF THE AMICI CURIAE

Amici are not-for-profit organizations whose mission

is to advance the interests of local governments and

the public that is dependent on their services. Amici

monitor and analyze legal developments that have

an impact on local governments, and take positions

advocating for greater protection of government

officials as they serve the public.'

The National Association of Counties (NACo)

represents county governments in the United States.

Founded in 1935, NACo provides essential services

to the nation’s 3,069 counties through advocacy,

education, and research.

The National League of Cities (NLC) is the oldest

and largest organization representing municipal

governments throughout the United States. Working

in partnership with 49 State municipal leagues, the

NLC serves as a national advocate for the more than

19,000 cities, villages, and towns it represents.

The U.S. Conference of Mayors (USCM), founded in

1932, is the official nonpartisan organization of all

United States cities with a population of more than

30,000 people. Each city is represented in the USCM

by its chief elected official, the mayor.

The International City/County Management Asso-

ciation (ICMA) is a nonprofit professional and

educational organization of over 9,000 appointed chief

' The parties have consented to the filing of this brief. No

counsel for a party authored this brief in whole or in part, no

counsel or party made a monetary contribution intended to fund

the preparation or submission of this brief, and no person other

than amici, its members, or its counsel made a monetary

contribution to its preparation or submission.

2

executives and assistants serving cities, counties,

towns, and regional entities. ICMA’s mission is to

create excellence in local governance by advocating

and developing the professional management of local

governments throughout the world.

The International Municipal Lawyers Association

(IMLA) has been an advocate and resource for local

government attorneys since 1935. Owned solely by its

more than 3,000 members, IMLA serves as an

international! clearinghouse for legal information and

cooperation on municipal legal matters.

STATEMENT OF THE CASE

The amended complaint alleges that on March 18,

2011, respondent Terrence J. Gruber, an officer of the

Joliet, Illinois, Police Department, stopped petitioner’s

vehicle, forcibly removed petitioner from the front

passengers seat of the vehicle, placed him under

arrest, pushed him to the ground injuring petitioner’s

back, head, and hand, all without probable cause to

support a lawful arrest, and employing excessive force.

J.A. 62-63.* Officer Gruber then performed a search of

petitioner’s person, finding a bottle of vitamins. J.A.

63-64. Another officer performed a field test on the on

the pills within the bottle, which indicated that they

did not contain a controlled substance, but Officer

Gruber placed petitioner under arrest despite the

negative test result. J.A. 69-70.

Petitioner was transported to a police facility, where

another respondent, Sergeant Scott Cammack, again

* Because this case is before the Court on the sufficiency of

petitioner's first amended complaint, we take all nonconclusory

factual allegations in that pleading as true. See, e.g., Ashcroft v.

Iqbal, 556 U.S. 662, 677-80 (2009).

3

tested the pills. J.A. 70. Petitioner “is informed and

believes that the test results showed that that the pills

were not a controlled substance.” Jd. Nevertheless,

Officer Gruber, Sgt. Cammack, and the other respond-

ent officers involved in petitioner’s arrest “caused false

criminal charges to be brought against p[etitioner] for

possession of a controlled substance, with intent

to deliver.” J.A. 71. That day, Officer Jeffrey Kneller,

also a respondent, executed under oath a complaint

charging petitioner with possession of a controlled

substance. J.A. 52-53.

The records of the Circuit Court of Will County,

Illinois, indicate that on the day of his arrest,

petitioner appeared before a judge on the drug charge,

counsel was appointed to represent him, the judge

found that the charge was supported by probable

cause, set bond, and remanded petitioner to the

custody of the county jail. Pet. Br. 4-5.

On March 30, Officer Gruber testified before the

Will County Grand Jury that during the traffic stop,

after detecting the odor of cannabis, he arrested

petitioner and, during a search incident to arrest,

recovered pills that, according to a field test, contained

methylenedioxymethampheamine, or ecstasy, a con-

trolled substance. J.A. 96. Based on that testimony,

the grand jury returned an indictment charging

petitioner with unlawful possession of a controlled

substance. J.A. 54-55.

The Illinois state crime laboratory tested the pills

recovered from petitioner and, in a report dated April

1, 2011, found that they did not contain a controlled

substance. J.A. 51. On May 4, the prosecution’s motion

to dismiss the charge against petitioner was granted,

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

34, 101.

4

On April 10, 2013, petitioner brought suit against

the City of Joliet and the officials involved in his

arrest, alleging a violation of his constitutional rights

actionable under 42 U.S.C. § 1983. J.A. 102. The

district court dismissed the action on the ground that

petitioner's action was barred by the applicable

statute of limitations because it had not been brought

within two years of his allegedly unconstitutional

arrest. J.A. 98-99.

The court of appeals affirmed, concluding that

although petitioner had tried to avoid the limitations

bar by styling his action as a “malicious-prosecution

claim,” J.A. 102, “there is nothing but confusion gained

by calling [a] legal theory [brought under the Fourth

Amendment or any other amendment] ‘malicious pro-

secution.” J.A. 103 (quoting Parish v. City of Chicago,

594 F.3d 551, 554 (7th Cir. 2009) (brackets in

original)). It agreed with the district court that “any

Fourth Amendment claim that Manuel might bring is

time-barred.” Id.

SUMMARY OF THE ARGUMENT

Petitioner’s claim that the officers involved in his

arrest violated his Fourth Amendment rights is barred

by the applicable two-year statute of limitations.

The Fourth Amendment is violated when an alleg-

edly unconstitutional search or seizure occurs, not

when an ensuing criminal case is resolved. The statute

of limitations on a Fourth Amendment false-arrest

claim begins to run when the arrestee appears in

court, leaving the custody of the arresting officers. At

that point, one arrested without probable has a right

to sue for an allegedly unconstitutional arrest, regard-

less whether he is later prosecuted as a consequence

of the arrest.

5

Although petitioner characterizes the criminal

case against him as a “malicious prosecution,” the

Fourth Amendment forbids unreasonable searches

and seizures, rather than unwarranted or malicious

prosecutions. Petitioner’s submission, moreover, would

permit plaintiffs to bring decades-old Fourth Amend-

ment claims when they finally emerge from prison. In

our experience, petitioner’s submission would give life

to an enormous volume of stale claims, undermining

critical policies basic to section 1983’s embrace of state

statutes of limitation.

Equally important, section 1983 permits petitioner

to sue for a violation of his constitutional rights, not

for common-law torts such as malicious prosecution.

Indeed, the tort of malicious prosecution developed so

that private parties could be held accountable for

wrongful prosecutions they pressed against others in

pursuit of private interests. These considerations have

no fair application to the liability of public prosecutors

and police, who are politically accountable for wrong-

ful prosecutions.

Accordingly, petitioner’s Fourth Amendment claim

accrued when he left the arresting officers’ custody

and appeared in court. This action is therefore time-

barred.

ARGUMENT

Petitioner's amended complaint states that his

“action arises under the United States Constitution

and the Civil Rights Act of 1871 (42 U.S.C. § 1983).”

J.A. 59. In this Court, petitioner presses only what he

calls a “malicious prosecution claim[{] for pretrial

detention under the Fourth Amendment.” Pet. Br.

10.

6

Section 1983 makes actionable “the deprivation of

any rights, privileges, or immunities secured by

the Constitution and laws,” 42 U.S.C. § 1983 (2012).

Accordingly, “(t]he first inquiry in any § 1983 suit

is whether the plaintiff has been deprived of a right

‘secured by the Constitution and laws.” Baker uv.

McCollan, 443 U.S. 137, 140 (1979).

By alleging that his arrest was unsupported by

probable cause, petitioners complaint describes a

violation of the Fourth Amendment, actionable under

section 1983. See, e.g., Devenpeck v. Alford, 543 U.S.

146, 152-53 (2004). Cf. Malley v. Briggs, 475 U.S. 335,

345 (1986) (officer can be liable for obtaining arrest

warrant unsupported by probable cause). That claim

accrued, however, when petitioner left the custody of

the arresting officers. The statute of limitations on

section 1983 claims in Illinois is the two-year period

for actions on a personal injury. See, e.g., Ashafa v.

City of Chicago, 146 F.3d 459, 461-63 (7th Cir. 1998).

This time bar is fatal to petitioner’s case.

I. A TIME-BARRED A FOURTH AMEND-

MENT CLAIM CANNOT BE REVIVED BY

RELABELING IT AS A CLAIM FOR

MALICIOUS PROSECUTION.

Since petitioner alleged no violation of his Fourth

Amendment rights beyond a time-barred claim for

arrest without probable cause, his action was properly

dismissed.

7

A. A Fourth Amendment Claim Alleging

an Arrest Without Probable Cause

Accrues When the Arrestee Appears in

Court.

Petitioner's Fourth Amendment claim against the

respondent officers accrued when they arrested him,

allegedly without probable cause, and is barred by the

two-year statute of limitations.

A section 1983 claim accrues, and the limitations

period begins to run, “when the plaintiff has a

‘complete and present cause of action,’ that is, when

‘the plaintiff can file suit and obtain relief.” Wallace v.

Kato, 549 U.S. 384, 388 (2007) (quoting Bay Area

Laundry & Dry Cleaning Pension Trust Fund v.

Ferbar Corp. of California, Inc., 522 U.S. 192, 201

(1997) (citations and further internal quotations

omitted)). Accord, e.g., Green v. Brennan, 136 S. Ct.

1769, 1776 (2016).

When an individual is arrested without probable

cause, his Fourth Amendment rights are violated, and

he accrues a right to sue. After all, “[t]he wrong con-

demned by the Fourth Amendment is ‘fully accom-

plished’ by the unlawful search or seizure itself 2

United States v. Leon, 468 U.S. 897, 906 (1984) (quot-

ing United States v. Calandra, 414 U.S. 338, 354

(1974)). Accord, e.g., Pennsylvania Bd. of Prob. &

Parole v. Scott, 524 U.S. 357, 362 (1998); Arizona v.

Evans, 514 U.S. 1, 10 (1995).*

* Moreover, because accrual turns on when the plaintiff

acquired a right to relief under the Constitution or laws of the

United States, “the accrual date of a § 1983 cause of action is a

question of federal law that is not resolved by reference to state

law.” Wallace, 549 U.S. at 388.

8

It matters not whether an arrestee subsequently

faces criminal charges as a result of an arrest, accom-

panied by pretrial detention, or that the arresting

officers allegedly provided false information about

the arrest to prosecutors. The Fourth Amendment

is violated by “unreasonable searches and seizures,”

U.S. Const. amend. IV, not information that police

provide to prosecutors, or a charging document that

prosecutors thereafter choose to file.

To be sure, an ensuing prosecution may well be a

continuing adverse consequence of an arrest in

violation of the Fourth Amendment for which an

arrestee can recover damages—a question we consider

in Part ILC below—but the fact that a plaintiff

continues to experience adverse consequences flowing

from an unlawful act does not delay the running of

the limitations period. Were the rule otherwise, the

statute of limitations would never run on the claims

of plaintiffs seeking to recover for a permanent

disability caused by the defendant’s unlawful conduct,

since their damages would continue to mount. Cf

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

(section 1983 action alleging retaliatory discharge

accrued when plaintiffs received notice of discharge

and not when discharge took effect).

Wallace illustrates our point. Wallace brought a

section 1983 action based on an allegedly unconstitu-

tiona) arrest, and contended that his claim did not

accrue until he was released from custody following

the dismissal of the charges against him “since he is

seeking damages up to that time.” 549 US. at 391.

This Court disagreed: “Even assuming that all

damages for detention pursuant to legal process could

be regarded as consequential damages attributable

to the unlawful arrest, that would not alter the

9

commencement of the statute of limitations.” /d.

That is because a claim “accrues, and the statute of

limitations commences to run, when the wrongful act

or omission results in damages.” Jd. (quoting 1 Calvin

W Corman, Limitation of Actions § 112, at 150

(2005)).

The Court observed that Wallace “was injured and

suffered damages at the moment of his arrest, and was

entitled to bring suit at that time.” 549 U.S. at 390 n.3.

The Court added that Wallace had alleged what would

have been regarded at common law as the tort of false

imprisonment, which “is subject to a distinctive rule —

dictated, perhaps, by the reality that the victim may

not be able to sue while he is still imprisoned.” 549

U.S. at 389. Under that rule, a claim accrues “once the

victim becomes held pursuant to [legal] process -—

when, for example, he is bound over by a magistrate

or arraigned on charges.” /d. (citations and emphasis

omitted). In Wallace, that occurred “when [Wallace]

appeared before the examining magistrate and was

bound over for trial.” Jd. at 391. This proved fatal:

“Since more than two years elapsed between that date

and the filing of this suit the action was time

barred.” Jd. at 391-92.‘

Petitioner endeavors to put Wallace aside on the

ground that it did not “explore[] the contours of a

Fourth Amendment malicious prosecution suit under

§ 1983 ” Pet. Br. 29 (quoting Wallace, 549 US. at

* As Wallace recognized, this accrual rule may result in the

commencement of civil litigation while the criminal case is pend-

ing or anticipated, but in such cases, rather than somehow

manipulating the rules for accrual, if necessary, the district court

could “stay the civil action until the criminal case or the

likelihood of a criminal case is ended.” 549 US. at 394.

10

390 n.2). Malicious prosecution, however, is a state-

law tort, not a Fourth Amendment claim.

The Fourth Amendment forbids not unwarranted or

malicious prosecutions but unreasonable searches and

seizures. Indeed, the tort of malicious prosecution does

not even include among its elements a requirement

that the plaintiff be subjected to search or seizure. See

Restatement (Second) of Torts § 653 (1977). See also

U.S. Br. 24 n.15 (*[A] common law claim of malicious

prosecution does not have seizure as an element — a

necessary component of a Fourth Amendment claim.”).

Accordingly, rebranding a time-barred Fourth

Amendment claim as “malicious prosecution” changes

nothing of substance. There is no malicious-

prosecution clause lurking in the Fourth Amendment.

The invocation of a state-law tort theory is simply

irrelevant to a section 1983 Fourth Amendment

action. Cf. Rehberg v. Paulk, 132 S. Ct. 1497, 1504

(2012) (“[T]he Court has not suggested that § 1983

is simply a federalized amalgamation of pre-existing

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

encompassing the torts of malicious prosecution,

and more.”).

Petitioner's allegation that he was arrested and

subsequently detained at a police facility through the

course of an evening without probable cause describes

a false imprisonment in violation of his right to be free

from unreasonable search and seizure under the

Fourth Amendment. That Fourth Amendment viola-

tion was complete as soon ag the allegedly unconstitu-

tional arrest, and its attendant infringement on

petitioner's liberty, occurred. As Wallace holds, as soon

as petitioner left the arresting officers’ custody and

appeared in court, where he faced a formal charge and

11

was detained pursuant to the court’s bail determina-

tion, the statute of limitations began to run.°

Petitioner failed to bring suit within two years of the

time that he left the custody of the arresting officers

and appeared in court. Therefore, petitioner's Fourth

Amendment claim is now time-barred.

B. Judicially-Authorized Pretrial Deten-

tion Following an Arrest Is Not a

Continuing Seizure by the Arresting

Petitioner argues that he has alleged a Fourth

Amendment violation that lasted until he was

released from custody, arguing that “anyone who is

arrested and put in jail is seized from arrest until

release ” Pet Br. 22.°

5 Petitioner makes no argument that any doctrine tolled the

running of the statute of limitations while the charge against him

was pending. Wallace, moreover, concluded that no such tolling

doctrine exists. See 549 U.S. at 394-97. And, though the allega-

tion is unquestionably disturbing, petitioner makes no argument

that his claim that excessive force was used during his arrest is

timely even under his theory of “malicious prosecution.”

* This suggestion admittedly receives some support from

Justice Ginsburg’s separate opinion in Albright v. Oliver, 510

U.S. 266 (1994), in which she opined that a person may be

considered “seized” for Fourth Amendment purposes “so long as

he is bound to appear in court and answer the state’s charges.”

Id. at 279 (concurring opinion). In that case, however, although

the petitioner alleged a prosecution unsupported by probable

cause, he pressed only a due process and no Fourth Amendment

claim, as both the lead opinion and Justice Ginsburg recognized.

See id. at 271 (plurality opinion); id. at 277 & n.1 (Ginsburg, J.

concurring). Accordingly, the parties did not brief, and the Court

had no occasion to decide, whether Albright had a Fourth

Amendment claim not barred by the applicable statute of

limitations. Indeed, although Albright filed suit within two years

12

Wallace is a complete answer to petitioner’s argu-

ment. As we explain above, in that case, this Court

held that Wallace’s claim accrued when he first

appeared in court, not when he was released from

custody. Even aside from the precedential force of

Wallace, however, petitioner’s argument is unavailing,

for at least three reasons.

1. A Fourth Amendment Seizure Does

Not Continue Throughout Pretrial

Detention.

Petitioner’s conception of a Fourth Amendment

“seizure” continuing throughout pretrial detention is

insupportable.

A “seizure” of a person, for purposes of the Fourth

Amendment, involves the process of acquiring custody

of an individual, not court-ordered pretrial detention

of one previously taken into custody. See, e.g.,

Brendlin v. California, 551 U.S. 249, 254 (2007) (“A

person is seized by the police when the officer,

by means of physical force or show of authority,

terminates or restrains his freedom of movement ’

(emphasis, internal quotations and citations omitted));

California v. Hodari D., 499 U.S. 621, 624 (1991)

(“From the time of the founding to the present, the

word ‘seizure’ has meant a ‘taking possession.’ To

constitute an arrest, however — the quintessential

‘seizure of the person’ under our Fourth Amendment

jurisprudence — the mere grasping or application

after the charges against him were dismissed, he sued more than

two years after he had been arrested; and, for that reason, the

plurality observed that he ‘may have missed the [applicable two-

year| statute of limitations for any claim he had based on an

unconstitutional search or seizure." Jd. at 271 n.5.

13

of physical force with lawful authority was

sufficient.”).

Judicially-authorized pretrial detention, in contrast,

has always been assessed under the Due Process

Clause. See, e.g., Kingsley v. Henrickson, 135 S. Ct.

2466, 2473-76 (2015); Bell v. Wolfish, 441 U.S. 520,

535-40 (1979). Indeed, if pretrial detention were “a

seizure subject to the reasonableness requirement of

the Fourth Amendment,” Tennessee v. Garner, 471

U.S. 1, 7 (1985), there would be no need for the Eighth

Amendment’s Bail Clause and its admonition that

“[elxcessive bail shall not be required.” U.S. Const.

amend. VIII, cl.1.

On this point, petitioner relies primarily on Gerstein

v. Pugh, 420 U.S. 103 (1975), as do his amici, e.g.,

U.S. Br. 11-12; Alschuler Br. 30; NACDL Br. 13, 27

Gerstein, however, held only that “the Fourth Amend-

ment requires a judicial determination of probable

cause as a prerequisite to extended restraint of liberty

following arrest.” 420 U.S. at 114. In this fashion,

Gerstein identified a Fourth Amendment prerequisite

to pretrial detention; it did not hold that the entire

period of pretrial detention is a “seizure” within the

meaning of that amendment.

Petitioner was searched and seized, allegedly

unreasonably, when he was arrested. His Fourth

Amendment claim accrued then.

2. An Arresting Officer’s Seizure Ends

When the Arrestee Appears in Court.

Even if pretrial detention is properly regarded as an

ongoing seizure, that would have no effect on the point

at which petitioner's claim against the arresting

officers accrued. Their seizure of petitioner ended

when he left their custody.

14

Under Illinois law, an arrestee must be brought to

court “without unnecessary delay . and a charge

shall be filed.” 725 ILCS 5/109-1(a) (2014). At the

initial appearance in court, the judge must admit the

arrestee to bail as provided by apjucable law. /d.

§ 109-1(b\(4). Accordingly, after an arrestee appears

in court, his custodial status is determined by the

court, not the arresting officers. Thus, once petitioner

appeared in court and received a bail hearing, he was

no longer in respondents’ custody, and their seizure of

him was at an end.

It therefore is quite wrong to say that respondents

somehow seized petitioner throughout the course of

his prosecution.

3. A Claim Accrues When a Defendant’s

Overt Act Injures a Plaintiff.

Even if respondents undertook some sort of ongoing

seizure throughout the time that petitioner was in

custody, that would not delay accrual of petitioner's

Fourth Amendment claim.

Statutes of limitation “characteristically embody a

‘policy of repose, designed to protect defendants.”

Lozano v. Montoya Alvarez, 134 S. Ct. 1224, 1234

(2014) (quoting Burnet v. New York Central R. Co., 380

U.S. 424, 428 (1965)). It follows that conduct occurring

outside the limitations period is “treat[ed] as lawful”

once a litigant “fail[s] to file a timely charge ‘

United Air Lines, Inc. v. Evans, 431 U.S. 553, 558

(1977).

Accordingly, a plaintiff may not bring suit based on

a defendant’s overt act that caused him injury outside

the limitations period, even if the defendant commit-

ted additional unlawful acts within the limitations

period. See, e.g., Klehr v. A.O. Smith Co., 521 U.S. 179,

15

189 (1997) (“[T] he commission of a separate new overt

act generally does not permit the plaintiff to recover

for the injury caused by old overt acts outside the

limitations period.”); Delaware State College v. Ricks,

449 U.S. -250, 257 (1980) (“[T]he commission of a

separate new overt act generally does not permit the

plaintiff to recover for the injury caused by old overt

acts outside the limitations period.”).

It is only when the defendant’s conduct is illegal

because it involves an ongoing pattern of misconduct

extending into the limitations period that an alleged

continuing violation delays accrual. See, e.g., National

Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 117

(2002) (“A hostile work environment claim is composed

of a series of separate acts Provided that an act

contributing to the claim occurs within the filing

period, the entire time period of the hostile environ-

ment may be considered ”); Havens Realty Corp. v.

Coleman, 455 U.S. 363, 380-81 (1982) (“[W]here a

plaintiff, pursuant to the Fair Housing Act, challenges

not just one incident of conduct violative of the Act, but

an unlawful practice that continues into the limita-

tions period, the complaint is timely when it is filed

within 180 days of the last asserted occurrence of that

practice.” (footnote omitted)).

Petitioner alleged no pattern of misconduct extend-

ing into the limitations period. To the contrary, the

arresting officers searched and seized petitioner on a

single occasion, and, under Wallace, an attack on that

arrest is now time-barred. Even if the arresting

officers later provided false information to prosecutors

16

about petitioner’s arrest, that would not have pro-

duced a fresh search or seizure in violation of the

Fourth Amendment.’

In fact, the only conduct of any respondent alleged

in the complaint and occurring after petitioner’s arrest

and appearance in court is Officer Gruber’s testimony

before the grand jury. That testimony, however,

occurred outside the limitations period. It was also

protected by the immunity from civil liability enjoyed

by grand jury witnesses. See Rehberg, 132 S. Ct. at.

1506-07 (holding that allegedly false grand jury testi-

mony and activities “preparatory” to testimony are

immunized).

Petitioner surely cannot extend the limitations

period through the strange alchemy of combining

a time-barred false-arrest claim with time-barred

and immunized grand jury testimony. Cf. Lorance v.

AT&T Technologies, Inc., 490 U.S. 900, 908 (1989)

(“[Pletitioners have asserted a claim that is wholly

dependent on discriminatory conduct occurring well

outside the period of limitations, and cannot complain

of a continuing violation.”).

' This point discloses the problem with the position of the

United States, which concedes that “the district court correctly

dismissed as time-barred petitioner’s allegations concerning his

warrantless arrest,” but nevertheless argues that petitioner's

“claim for unlawful pretrial detention was timely, however,

because it did not accrue until after the drug charge was

dismissed ” US. Br. 19 n.10. This submission improperly

splits a single Fourth Amendment claim into two. The arresting

officers allegedly conducted an unreasonable search and seizure

of petitioner only once, outside the limitations period.

17

Petitioner’s complaint alleged a discrete Fourth

Amendment violation outside the limitations period. It

is time-barred.

C. Powerful Policy Considerations Support

a Rule of Prompt Accrual for Fourth

Amendment Claims.

Our concern with the limitations period applicable

to Fourth Amendment claims is rooted in our experi-

ence with these claims. Petitioner’s submission would

make it enormously difficult for local governments and

their employees to have a fair chance to defend the

claims that petitioner’s submission makes viable.

Although, in his opening brief, petitioner never

expressly takes a position on when his claim accrued,

in the lower courts, he argued that he “filed his

complaint within two years of the dismissal of the drug

charge, so his malicious prosecution claim was timely.”

Pet. Br. 9. Perhaps petitioner’s argument that “anyone

who is arrested and put in jail is seized from arrest

until release,” id. at 22, means the Fourth Amendment

claim he presses is available only to those who have

been subject to pretrial detention. But, some amici go

further, arguing that even those released prior to trial

remain “seized” in some sense, and acquire the right

to sue when they are no longer required to appear in

court. See NACDL Br. 24-27.

Petitioner's submission also implies that even

defendants who are convicted and sentenced to prison

can bring Fourth Amendment claims upon release.

After all, if a Fourth Amendment seizure continues as

long as an individual is in custody, a “seizure” would

presumably extend to post-conviction incarceration no

less than pretrial detention. Some amici are explicit on

this point, arguing that individuals who have been

18

convicted acquire the right to sue years later, when

they are finally released. See Innocence Network Br.

27-30.

Moreover, the conception of a Fourth Amendment

claim accruing upon release from custody suggests

that even convicts who are never exonerated can

emerge from prison and file decades-old Fourth

Amendment claims. Although petitioner notes that

“{mJjalicious prosecution claims accrue when ‘criminal

proceedings have terminated in the plaintiffs favor,”

Pet. Br. 9 (quoting Heck v. Humphrey, 512 U.S. 477,

489 (1994)), it is far from clear that this favorable-

termination rule is consistent with Fourth Amend-

ment jurisprudence. It has long been settled that the

Fourth Amendment’s “protection against unreasona-

ble searches and seizures extends to the innocent and

guilty alike.” McDonald v. United States, 335 U.S. 451,

453 (1948).

In Heck, for example, while holding that section

1983 plaintiffs may not bring suit when “a judgment

in favor of the plaintiff would necessarily imply the

invalidity of his conviction or sentence,” 512 U.S. at

487, the Court added that a Fourth Amendment claim

“may lie even if the challenged search produced evi-

dence that was introduced in the state criminal trial

resulting in the § 1983 plaintiffs still-outstanding

conviction.” Jd. at 487 n.7

Beyond that, under petitioner’s submission, section

1983 plaintiffs could presumably bring Fourth Amend-

ment claims never litigated in the antecedent criminal

case. Section 1983 contains no rule barring plaintiffs

from bringing Fourth Amendment claims merely

because they could have been made in an antecedent

criminal prosecution, even if the plaintiff chose to

19

plead guilty in the prior criminal case. See Haring v.

Prosise, 462 U.S. 306, 317-23 (1983).

Accordingly, the submissions of petitioner and his

amici enable section 1983 plaintiffs to bring new

Fourth Amendment claims many years after an alleg-

edly wrongful search or seizure. See, e.g., Alschuler Br.

9 (acknowledging pretrial detention can “be long” and

detention after trial “is likely to be long”). Wallace, for

example, was in custody for over nine years before he

was released and then brought suit. See 549 US. at

386-87.

The delays that these submissions contemplate will

make it enormously difficult to defend litigation. In

our experience, jurors frequently credit plaintiffs’

testimony that they remember their arrests vividly,

but because arrests are a routine business for many

officers, years later they often have no independent

recollection of the events. Worse still, after long

delays, officers often have retired, moved, or even

passed away, and independent witnesses or physical

and documentary evidence that could corroborate

them often cannot be located.

It is the unfairness inherent in litigating stale

claims that is central to statutes of limitation, which

“are intended to ‘promote justice by preventing sur-

prises through the revival of claims that have been

allowed to slumber until evidence has been lost,

memories have faded, and witnesses have dis-

appeared.” Gabrelli v. SEC, 133 S. Ct. 1216, 1221

(2013) (quoting Order of Railway Telegraphers v.

Railway Express Agency, Inc., 321 U.S. 342, 348-49

(1944)). The position advanced by petitioner and his

amici, however, is utterly at odds with the purpose of

the section 1983’s use of state-law limitations periods,

which are employed because “[j]ust determinations of

20

fact cannot be made when, because of the passage of

time, the memories of witnesses have faded or

evidence is lost.” Wilson v. Garcia, 471 U.S. 261, 271

(1985).

A person who believes he was arrested without

probable cause has ample reason to press that claim

as soon as the arrest occurs. Petitioner’s submission,

however, tolerates lengthy delays that could be

enormously prejudicial. Unless defendants are given

prompt notice, they may be unaware of the need to

undertake an investigation and preserve evidence.

Petitioner’s rule would be costly as well, forcing law-

enforcement agencies to preserve evidence for decades,

at taxpayers’ expense, in case a Fourth Amendment

claim someday emerges. Even then, faded memories

will often necessitate handsome settlements.

Worse still, the truth-seeking process is prejudiced

when litigation is premised on stale evidence. That is

reason enough to reject petitioner’s Fourth Amend-

ment theory of “malicious prosecution.”

Il. A FOURTH AMENDMENT CLAIM IS NOT

PROPERLY CHARACTERIZED AS AN

ACTION FOR MALICIOUS PROSECUTION.

Petitioner argues that “[plermitting Fourth Amend-

ment claims such as Manuel’s to proceed would uphold

the longstanding principle that victims of malicious

prosecution are entitled to a damages remedy.” Pet.

Br 36. Some of his amici similarly invoke the common-

law tort of malicious prosecution. E.g., Alschuler Br.

10-14. Others, however, admit the difficulties in

comparing a Fourth Amendment claim with this tort.

E.g., U.S. Br 24 n.15 (acknowledging that the two

claims “are not a perfect fit”).

21

Analogies between section 1983 and common-law

tort claims are often perilous. As this Court has

observed, Ҥ 1983 differs in important ways from

pre-existing torts.” Rehberg, 132 S. Ct. at 1504.

Indeed, section 1983 “ha[s] no precise counterpart in

state law”; and, therefore, “{i]t is the purest coinci-

dence when state statutes or the common law provide

for equivalent remedies; any analogies to those causes

of action are bound to be imperfect.” Wilson, 471 U.S.

at 272 (internal quotations and citation omitted).

Still, the common law can be instructive in section

1983 litigation because “Congress intended [§ 1983] to

be construed in the light of common-law principles,”

Rehberg, 132 S. Ct. at 1502 (second brackets in

original) (quoting Kalina v. Fletcher, 522 U.S. 118, 123

(1997).

For example, in Heck, invoking “the hoary principle

that civil tort actions are not appropriate vehicles for

challenging the validity of outstanding criminal

judgments,” 512 U.S. at 486, the Court held that when

“a judgment in favor of the plaintiff would necessarily

imply the invalidity of his conviction or sentence

the complaint must be dismissed,” id. at 487, reason-

ing that “(t]he common-law cause of action for mali-

cious prosecution provides the closest analogy to

claims of the type considered here because it

permits damages for confinement imposed pursuant to

legal process.” Id. at 484. The Court therefore held

that “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.” Id. at 489-90 (footnote omitted).*®

* This holding does petitioner no good because he was never

convicted. Heck does not delay accrual of claims prior to the point

22

Wallace, however, makes clear that a plaintiff

cannot avoid the statute of limitations on a false-

arrest claim merely by seeking damages for ensuing

confinement pursuant to legal process. As we explain

in Part 1.A above, Wallace sought such damages, yet

this Court held that his claim accrued when left the

arresting officers’ custody, not when he was released.

If Wallace could extend the limitations period by

seeking damages for confinement pursuant to legal

process, the Court explained, “the statute would begin

to run only after a plaintiff became satisfied that he

had been harmed enough, placing the supposed

statute of repose in the hands of the party seeking

relief.” 549 U.S. at 391.

That holding forecloses petitioner’s effort to delay

accrual by announcing that he is interested in dam-

ages incurred while in custody pursuant to legal

process. Petitioner's claim that he was arrested

without probable cause accrued when he appeared in

court, regardless of the damages he seeks as a

consequence of that arrest.

Even aside from Wallace, petitioner's reliance on the

common law of malicious prosecution is unavailing

because of the manifold differences between Fourth

Amendment and malicious-prosecution claims.

The Restatement of Torts identifies the elements of

the tort of malicious prosecution:

A private person who initiates or procures

the institution of criminal proceedings against

another who is not guilty of the offense charged is

subject to liability for malicious prosecution if:

at which a criminal-defendant-turned-section-1983-plaintiff has

been convicted. See Wallace, 549 U.S. at 392-94.

23

(a) he initiates or procures the proceedings

without probable cause and primarily for a

purpose other than that of bringing an offender

to justice, and

(b) the proceedings have terminated in favor of

the accused.

Restatement (Second) of Torts § 653 (1977). These

elements have changed little since the enactment of

section 1983; in that era as well, malicious prosecution

required proof that the defendant instituted a

prosecution maliciously and without probable cause,

which was terminated favorably to the accused. See,

e.g., Joel Prentiss Bishop, Commentaries on the Non-

Contract Law §§ 221-26 (1889); 1 Francis Hilliard, The

Law of Torts 416-18, 428-58 (3d ed. rev. 1866); John

Townshend, A Treatise on the Wrong Called Slander

and Libel §§ 420-21 ((3d ed. 1877).

As we now explain, petitioner’s claim fundamentally

differs from the common-law tort of malicious

prosecution.

A. Fourth Amendment Claims Differ

Fundamentally from a Claim for

Malicious Prosecution.

The most obvious difference between a Fourth

Amendment claim and malicious prosecution, as we

explain above, is that malicious prosecution does not

require, as one of its elements, that the plaintiff have

been searched or seized. That alone should make it

clear that the common law of malicious prosecution

offers little useful guidance here. Beyond that, there

are additional and quite fundamental differences

between malicious prosecution and Fourth Amend-

ment claims.

24

1. Fourth Amendment Claims Do Not

Turn on the Outcome of an

Antecedent Case.

Unlike malicious-prosecution claims, Fourth Amend-

ment claims do not require a favorable outcome in

antecedent litigation.

As we explain above, one element of malicious

prosecution is that the antecedent prosecution termi-

nated favorably to the criminal-defendant-turned-

civil-plaintiff. A Fourth Amendment claim, in con-

trast, is not dependent on the outcome of an anteced-

ent criminal prosecution. Instead, “(t]he wrong con-

demned by the Fourth Amendment is fully accom-

plished by the unlawful search or seizure itself c

Leon, 468 U.S. at 906 (internal quotation and citation

omitted).

Thus, persons victimized by unreasonable search

and seizure but never criminally charged can bring

Fourth Amendment claims under section 1983 with-

out need to resort to state-court litigation. See, e.g.,

Monroe v. Pape, 365 U.S. 167, 169-87 (1961), overruled

in part on other grounds by Monell v. Department of

Social Services of N.Y., 436 U.S. 658 (1978).

Conversely, even those who are convicted on the

basis of evidence obtained through an allegedly

unreasonable search or seizure can bring suit despite

the conviction. In Heck, for example, as we explain in

Part IC above, the Court wrote that “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 plaintiffs still-outstanding

conviction.” 512 U.S. at 487 n.7.

25

Moreover, even those who plead guilty can sue to

seek redress for an allegedly unreasonable search or

seizure, even if it was the basis for the charge to which

the guilty plea was entered in state court, as long as

applicable state law does not treat the guilty plea as

precluding subsequent civil litigation. See Haring, 462

U.S. at 317-23. Indeed, in that case, the Court rejected

a rule that would have required a section 1983 plain-

tiff to “prevail in state court ‘in order to [preserve] the

mere possibility” of later bringing a § 1983 claim in

federal court.” Jd. at 322 (quoting Brown v. Felson,

442 U.S. 127, 135 (1979) (brackets in original)).

As Wallace explains, one, like petitioner, allegedly

arrested without probable cause, can bring a Fourth

Amendment claim immediately upon arrest, without

need to await the outcome of related criminal litiga-

tion. See 549 U.S. at 391, 397 Accordingly, the Fourth

Amendment claim petitioner advances fundamentally

differs from a malicious-prosecution claim, which

requires proof of a favorable outcome in an antecedent

prosecution.

2. The Fourth Amendment Does Not

Address the Decision to Prosecute.

Although the tort of malicious prosecution imposes

a requirement of probable cause to prosecute, the

Fourth Amendment does not address the decision to

prosecute.

As we explain above, the Fourth Amendment

addresses unreasonable searches and seizures,” not

unwarranted or malicious prosecutions. Not only is

the legal wrong addressed by the Fourth Amendment

fully accomplished by the unreasonable search or

seizure itself, but even the “use of fruits of a past

unlawful search or seizure ‘work[s] no new Fourth

26

Amendment wrong.” Leon, 468 U.S. at 906 (quoting

Calandra, 414 U.S. at 354 (brackets in original)).

Thus, the Fourth Amendment does not address the

decision to prosecute; indeed, in Gerstein, the Court

rejected the view that the Fourth Amendment entitles

“the accused to judicial oversight or review of the

decision to prosecute.” Id. at 119. See also Albright

v. Oliver, 510 U.S. 266, 282 (1994) (Kennedy, J.,

concurring in the judgment) (“The specific provisions

of the Bill of Rights neither impose a standard for the

initiation of a prosecution, nor require a pretrial

hearing to weigh evidence according to a given

standard.”) (citations omitted).

A Fourth Amendment claim is properly directed at

a search or seizure, not the decision to prosecute.

Petitioner’s reliance on that tort is unavailing.

3. Fourth Amendment Claims Do Not

Turn on Proof of Malice.

Although the common-law tort of malicious prosecu-

tion required proof of malice, a Fourth Amendment

claim does not.

As we explain above, in addition to the absence of

probable cause, a malicious prosecution claim requires

proof of malice; that is, bringing the case “primarily for

a purpose other than that of bringing an offender to

justice ” Restatement (Second) of Torts § 653(a)

(1977). Leading commentators in the era of section

1983’s enactment, while acknowledging that malice

may be inferred from an absence of probable cause,

nevertheless stressed that malice was an independent

element of the tort requiring a separate finding of

improper motive. See, e.g., Melville M. Bigelow,

Leading Cases on the Law of Torts 203-04 (1875);

Bishop, supra §§ 231-35; Thomas M. Cooley, A

27

Treatise on the Law of Torts or the Wrongs Which

Arise Independent of Contract 185 (1880); Hilliard,

supra at 446-48; Martin L. Newell, A Treatise on the

Law of Malicious Prosecution, False Imprisonment,

and Abuse of Legal Process 236-49 (1892).

Fourth Amendment claims, in contrast, are judged

by an objective test in which the motive of the inves-

tigator is irrelevant. See, e.g., Kentucky v. King, 563

U.S. 452, 463-64 (2011); Brigham City v. Stuart, 547

U.S. 398, 404-05 (2006).

To be sure, as petitioner notes, to invalidate a search

warrant, there must be proof of material misstate-

ments or omissions made at least recklessly. Pet. Br.

17-18 (citing Franks v. Delaware, 438 U.S. 154 (1978)).

This case, however, involves no effort to invalidate a

warrant, and even a recklessness standard stops well

short of the common-law requirement of malice. Cf.

NACDL Br. 22 (“[Nlothing in the text of the Constitu-

tion or § 1983 warrants importing a subjective inquiry

into malice that is foreign to Fourth Amendment

analysis.” (footnote omitted)).

Thus, petitioner’s Fourth Amendment claim does

not require proof of malice. For that reason, it funda-

mentally differs from a common-law claim of malicious

prosecution.

B. An Arresting Officer Is Not Akin to a

Complaining Witness Amenable to

Suit at Common Law for Malicious

Prosecution.

A police officer making an arrest is not fairly

analogous to a private party amenable at common law

to liability for malicious prosecution.

28

The Restatement of Torts, as we note above,

explains that liability for malicious prosecution can be

imposed on “{a] private person who initiates or pro-

cures the institution of criminal proceedings against

another.” Restatement (Second) of Torts § 653 (1977)

(emphasis supplied). Similarly, at the time of section

1983’s enactment, “the generally accepted rule’ was

that a private complainant who procured an arrest

or prosecution could be held liable in an action for

malicious prosecution ” Rehberg, 1325S. Ct. at 1503

(quoting Malley, 475 U.S. at 340). Moreover, “the term

‘complaining witness’ was used to refer to a party who

procured an arrest and initiated a criminal

prosecution.” /d. at 1507 (citation omitted).

It is no accident that the Restatement of Torts refers

only to the liability of private parties for malicious

prosecution. When the common-law tort of malicious

prosecution developed, nothing resembling modern

police departments with investigative responsibilities

existed.

In England, until roughly the time of the American

Revolution, the only public official engaged in law

enforcement was the constable, an official charged

with executing warrants and who appointed beadles

responsible for clearing the streets of beggars and

vagrants by day and keeping the community safe at

night. See Elaine A. Reynolds, Before the Bobbies:

The Night Watch and Police Reform in Metropolitan

London, 1720-1830, at 7-44 (1998). This system

emerged in the colonies and remained in place in the

framing era, with the duties of public officials engaged

in law enforcement largely confined to the execution of

warrants and responding to breaches of the peace. See,

e.g., Lawrence M. Friedman, Crime and Punishment

in American History 28-29, 68 (1993).

29

Not until the mid-nineteenth century did large cities

begin establishing police forces. See, e.g., David R.

Johnson, Policing the Urban Underworld: The Impact

of Crime on the Development of the American Police,

1800-1887, at 12-40 (1979); Thomas A. Repetto, The

Blue Parade 2-23 (1978); James F. Richardson, Urban

Police in the United States 6-15, 19-32 (1974). Even so,

by the time of the Civil Rights Act, policing was still

in its infancy: “If we can believe the census figures,

there were, all told, in 1880, 1,752 officers and 11,948

patrolmen in cities and towns with inhabitants of

5,000 or more.” Friedman, supra at 149.

Public prosecutors were also a rarity in this period.

Prosecution by private parties was the predominant

method at common law and was only gradually dis-

placed by public prosecution during the nineteenth

century. See Abraham S. Goldstein, Prosecution:

History of the Public Prosecutor, in 3 Encyclopedia of

Crime and Justice 1286 (Sanford H. Kadish et al. eds.,

1983).

Nevertheless, “because of deficiencies in the office of

public prosecutor, privately funded prosecutors consti-

tuted a significant element of the state criminal justice

system throughout the nineteenth century.” Robert M.

Ireland, Privately Funded Prosecution of Crime in the

Nineteenth-Century United States, 39 Am. J. Leg. Hist.

43, 43 (1995) (footnote omitted). Thus, “when § 1983

was enacted there was generally no such thing as

the modern public prosecutor.” Kalina, 522 U.S. at 132

(Scalia, J., concurring). Instead, “it was common for

criminal cases to be prosecuted by private parties.”

Rehberg, 132 S. Ct. at 1503.

It should therefore be unsurprising that virtually all

of the cases describing the tort of malicious prosecu-

tion prior to 1871 considered the liability of private

30

individuals for initiating a prosecution rather than the

potential liability of public officials such as prosecu-

tors or investigators. See, e.g., Herbert Stephen, The

Law Relating to Actions for Malicious Prosecution 16-

25 (Horace M. Rumsey ed. 1889); Townshend, supra at

432.

In the contemporary criminal justice system, in con-

trast, “it is almost always a prosecutor who is responsi-

ble for the decision to present a case to a grand jury

” Rehberg, 132 S. Ct. at 1508.° Prosecutors, in turn,

are immune from damages liability “when initiating a

prosecution ” Imbler v. Pachtman, 424 U.S. 409,

431 (1976).

The common-law concept of a complaining witness

legally responsible for the institution of a prosecution

made sense in a system of private prosecution; without

tort liability, private parties would not be accountable

for wrongful prosecutions they bring against others,

potentially to advance their pecuniary or other per-

sonal interests. That rationale, however, has little

application to the contemporary system of public

prosecution.

Police officers are public officials with investigative,

not prosecutorial responsibilities. Moreover, in con-

trast to private parties with an incentive to maximize

profits or otherwise pursue their own interests, “gov-

ernment employees typically act within a different

system.” Richardson v. McKnight, 521 U.S. 399, 410

(1997).

® That is the case under IIlinois law. It is the responsibility of

the State’s Attorney, not the police, to prosecute violations of

state law. See 55 ILCS 5/3-9005(a)(1) (2014). It is also the

responsibility of the State’s Attorney to present evidence to the

grand jury. See 725 ILCS 5/112-4 (2014).

31

In particular, unlike private parties, police officers,

the departments that employ them, and the public

prosecutors who utilize them as witnesses, are subject

to political accountability for wrongful prosecutions:

“There is no conviction-of-the innocent lobby in our

politics; police and prosecutors who prosecute or

convict the innocent face political accountability once

an exoneration occurs.” Lawrence Rosenthal, Second

Thoughts on Damages for Wrongful Convictions, 85

Chi.-Kent L. Rev. 127, 155 (2010) (footnote omitted).

Thus, arresting officers are not fairly analogous to

complaining witnesses at common law. Cf. Rehberg,

132 S. Ct. at 1507 (“[A] law enforcement officer who

testifies before a grand jury is not at all comparable to

a ‘complaining witness.”).

Officers who make arrests without probable cause

are properly held liable under the Fourth Amendment,

if they are timely sued. Using section 1983 to treat

police as the common law treated private individuals

who acted as complaining witnesses, however, is not a

faithful application of common-law principles.

C. Damages Attributable to a Criminal

Prosecution Are Not Available on a

Fourth Amendment Claim.

Although malicious prosecution “permits damages

for confinement imposed pursuant to legal process,”

Heck, 512 U.S. at 484, it is far from clear that the same

rule applies to a Fourth Amendment claim. Because

the Fourth Amendment addresses search and seizure,

not unwarranted prosecutions, damages associated

with decisions to press charges are not recoverable

under section 1983.

As the Court has explained, “the elements and

prerequisites for recovery of damages appropriate to

32

compensate injuries caused by the deprivation of one

constitutional right are not necessarily appropriate to

compensate injuries caused by the deprivation of

another.” Carey v. Piphus, 435 U.S. 247, 264-65 (1977).

Instead, recoverable damages are to be determined

“with reference to the nature of the interests protected

by the particular constitutional right in question.” Jd.

at 265.

As its text makes plain, the Fourth Amendment

“protects two types of expectations, one involving

‘searches, the other ‘seizures.” United States uv.

Jacobsen, 466 U.S. 109, 113 (1984). “A search com-

promises the individual interest in privacy; a seizure

deprives the individual of dominion over his person or

property.” Horton v. California, 496 U.S. 128, 133

(1990). Accord, e.g., Soldal v. Cook County, 506 U.S.

56, 66 (1992). The decision of a prosecutor to bring

charges against an arrestee, however, does not enable

arresting officers to further invade the arrestee’s

privacy or liberty. Instead, it initiates litigation that

facilitates an authoritative determination of the

defendant’s Fourth Amendment rights.

In Gerstein, as we note above, the Court rejected

the view that the Fourth Amendment entitles “the

accused to judicial oversight or review of the

decision to prosecute.” 420 U.S. at 119. Thus, as Judge

Posner put it, Fourth Amendment damages do not

include those attributable to prosecution because “the

interest in not being prosecuted groundlessly is not

an interest that the Fourth Amendment protects.”

Gauger v. Hendle, 349 F.3d 354, 363 (7th Cir. 2003),

overruled in part on other grounds by Wallace v. City

of Chicago, 440 F.3d 421 (7th Cir. 2006), affd sub nom.

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

33

Other constitutional requirements protect an accused

against unwarranted charges, such as the right

to counsel, which attaches at an arrestee’s initial

appearance in court, see Rothgery v. Gillespie County,

554 U.S. 191, 213 (2008), and the rights to a speedy,

public, and fair trial, before an impartial jury. See, e.g.,

Gannett Co. v. DePasquale, 443 U.S. 368, 379-81

(1979). Damages flowing from a prosecution that

infringes these constitutional rules governing criminal

litigation may well be available under section 1983.

For example, the right to a fair trial includes a

prosecutor’s obligation under the Due Process Clause

to learn of and disclose to the defense material

exculpatory information known to police and other

investigators. See, e.g., Kyles v. Whitley, 514 U.S. 419,

437 (1995). This allocation of responsibility makes

good sense; police need not be lawyers, and prosecu-

tors are in a far better position to determine if

information is exculpatory and subject to disclosure

than police. Still, if police take steps to obstruct

prosecutors in discharging this duty, they may be

liable in damages for a wrongful prosecution or

conviction. '°

Beyond that, perhaps a failure to timely investigate

an arrestee’s claim of innocence might violate due

process. Cf. Baker, 443 U.S. at 145 (“We may even

assume mere detention pursuant to a valid

warrant but in the face of repeated protests of

innocence will after the lapse of a certain amount of

‘0 For cases embracing a rule along these lines, see, for

example, Burke v. McDonald, 572 F.3d 51, 58 (1st Cir. 2009);

Dominguez v. Hendley, 545 F.3d 585, 589-90 (7th Cir. 2008); and

Villasana v. Wilhoite, 368 F.3d 976, 980 (8th Cir. 2004).

34

time deprive the accused of ‘liberty without due

process of law.”).

And, perhaps due process requires some civil

remedy for an alleged malicious prosecution, see

Albright, 5.0 U.S. at 283-86 (Kennedy, J., concurring

in the judgment), although, when the prosecution is

allegedly a consequence of an arrest without probable

cause, the ability of the arrestee to bring a timely

Fourth Amendment claim likely provides the process

that is constitutionally due. Cf. Gerstein, 420 U.S. at

126 n.27 (“The Fourth Amendment has always

been thought to define the ‘process that is due’ for

seizures of persons and property in criminal cases,

including the detention of suspects pending trial.”).

Here, only a Fourth Amendment claim is before the

Court. Perhaps the prosecutor was imprudent for

pressing charges against petitioner on the basis of the

arresting officers’ accounts, rather than waiting for

laboratory test results, but the prosecutor’s decision

was his own — not that of the arresting officers — and

that decision neither violated the Fourth Amendment

nor implicated the interests protected by that

amendment.

For his part, petitioner argues that damages lia-

bility for wrongful prosecutions will deter police

misconduct. Pet. Br. 35. Indeed, damages are available

against police for wrongful arrests, if plaintiffs timely

sue. Charging decisions, in contrast, are made by

prosecutors. Treating police officers as if they were

prosecutors “is anomalous,” and even “raises serious

questions about whether the police officer would

be entitled to share the prosecutor's absolute

immunity.” Albright, 510 U.S. at 279 n.5 (Ginsburg, J.,

concurring).

35

Beyond that, the incentive effects of liability are

blunted because police officers are usually indemnified

for their legal costs. See Joanna C. Schwartz, Police

Indemnification, 89 N.Y.U. L. Rev. 885, 912-37 (2014).

The ubiquity of indemnification is unsurprising:

“[I]Jndemnification is the most efficient way for an

employer to offer the level of compensation that will

minimize the risk of over-deterrence.” Rosenthal,

supra at 131 (footnote omitted). To be sure, local

governments have reason to encourage employees to

avoid incurring liabilities that for which they must be

indemnified. Nevertheless, local governments must

also respond to political and not merely economic

incentives, and they “likely perceive far more political

pressure to make cases than to limit liability”; thus,

petitioner’s view of the incentive effects of liability

“considerably oversimplifies the crosscutting pres-

sures faced by those in law enforcement.” Id. at 153

(footnote omitted).

Accordingly, damages associated with a criminal

prosecution are not recoverable under a constitutional

provision that addresses “search and seizure,” not

malicious prosecution.

36

CONCLUSION

For the preceding reasons, the judgment of the court

of appeals should be affirmed.

Respectfully Submitted,

LISA SORONEN LAWRENCE ROSENTHAL

STATE AND LOCAL Counsel of Record

LEGAL CENTER CHAPMAN UNIVERSITY

444 N. Capitol Street, N.W FOWLER SCHOOL OF LAW

Washington, D.C. 20001 One University Drive

(202) 434-4845 Orange, CA 92866

lsoronen@sso. org (714) 628-2650

rosentha@chapman.edu

August 10, 2016