Opposition Brief — Washington v. Summerville

fi LeDYD |

No. 97-1324 MAR 16 1998

IN THE

Supreme Court of the United States

OCTOBER TERM, 1997

GEORGE WASHINGTON,

. Petitioner,

JOHN SUMMERVILLE, et ai..,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

BRIEF FOR RESPONDENTS IN OPPOSITION

BRIAN L. CROWE

Corporation Counsel

of the City of Chicago

LAWRENCE ROSENTHAL *

Deputy Corporation Counsel

BENNA RUTH SOLOMON

Chief Assistant

Corporation Counsel

TIMOTHY W. JORANKO

Assistant Corporation Counsel

City Hall, Room 610

Chicago, IL 60602

(312) 744-5337

Attorneys for Respondents

* Counsel of Record

WILSON - Epes PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

QUESTION PRESENTED

Whether a cause of action alleging an unreasonable

seizure accrues at the time the seizure occurs, or only

when criminal proceedings arising out of that seizure

terminate

(i)

TABLE OF CONTENTS

Page

QUESTION PRESIENTED nn. sc.cccecusecccssseseesceseeees-.-- i

py Se, | ee iv

RIE a kane ne 1

EAN. TTS A 1

CES AE ee ee ee 6

ESE aL ae ee gO 17

(iii)

iv

TABLE OF AUTHORITIES

Cases: Page

Albright v. Oliver, 510 U.S. 266 (1994) ............... 10, 12-13

Allen v. McCurry, 449 U.S. 90 (1980) ..................... 15

Alvarez-Machain v. United States, 96 F.3d 1246

(9th Cir. 1996) : a See IR 13

Booker v. Ward, 94 F.3d 1052 (7th Cir. 1996),

cert. denied, 117 S. Ct. 952 (1997) ....................... passim

Brooks v. City of Winston-Salem, 85 F.3d 178 (4th

Ts. ID iccienstccccias i dcngahi aascantipnectilaenenciaamrniatbieliaashea 10, 12

Calero-Colon v. Betancort-Lebron, 68 F.3d 1 (lst

RR a en RR EE CIE 12

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

I siiceiccriaiclicnisaheiasiissnbiiasda idaceibelihiclbindDdaasdlitibemmsmanianasiatias 7

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

EI sticcceneenissnschehicsiasssldainddiespaeani dia taameiiialnabdagieansans 7

Edwards v. Balisok, 117 S. Ct. 1584 (1997)............ 8

Farrell v. McDonough, 966 F.2d 279 (7th Cir.

1992), cert. denied, 506 U.S. 1084 (1993).............. 7

Gerstein v. Pugh, 420 U.S. 103 (1975) ..................... 9

Gonzalez v. Entress, 133 F.3d 551 (7th Cir. 1998).. 14, 15

Haring v. Prosise, 462 U.S. 806 (1988).................... ~,10

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

Helmet Law Defense League v. California High-

way Patrol, 1997 WL 547956 (9th Cir. 1997)... 13

Hudson v. Hughes, 98 F.3d 868 (5th Cir. 1996)...... 14

Jackson v. Vannoy, 49 F.3d 175 (5th Cir.) (per

curiam), cert. denied, 116 S. Ct. 148 (1995)........ 13

Kalimara v. Illinois Department of Corrections,

879 F.2d 276 (7th Cir. 1989) ..........00000002 7

Kremer v. Chemical Construction Corp., 456 U.S.

I Oe stat a es 15

Kyles v. Whitley, 115 S. Ct. 1555 (1995) -......000000... 16

Mackey v. Dickson, 47 F.3d 744 (5th Cir. 1995)

Be I rh etic elateinrecseesveedtinicontacied ilencintebtiominietciarcec 13-14

Newman v. Jensen, 1997 WL 665701 (9th Cir.

jj ENN One S Iie Cen RESORT EMD FT Ce ee 13

Reed v. City of Chicago, 77 F.3d 1049 (7th Cir.

RED ciiicucsstahecsciaihicen ee dablstapaideeicsdeidndbaseiahia di binsanaaiebeien 10

Schilling v. White, 58 F.3d 1001 (6th Cir. 1995)... 14

eee

Vv

TABLE OF AUTHORITIES—Continued

Page

Simmons v. O’Brien, 77 F.3d 1093 (8th Cir. 1996) 12

Smith v. Hultz, 87 F.3d 108 (3d Cir.), cert. denied,

fof Re 8 eR) | Satan eee vee enen 8

Smithart v. Towery, 79 F.3d 951 (9th Cir. 1996)

CE I sicricscacicrcalessccestepaiincsavepeainipatesincesieathidievsirink 11

United States v. Crews, 445 U.S. 463 (1980) ........... 9

Wells v. Bonner, 45 F.3d 90 (5th Cir. 1995)............ 12

Whiting v. Traylor, 85 F.3d 581 (11th Cir. 1996) .. 12

Valencia v. Wiggins, 981 F.2d 1440 (5th Cir.),

cert. denied, 509 U.S. 905 (1998).........00000000. 10

Woods v. Candela, 47 F.3d 545 (2d Cir.) (per

curiam), cert. denied, 116 S. Ct. 54 (1995)........ 14

Constitution and Statutes:

8 Ge 8, RRR ie ener rere passim

7 SW ee 12

Rn i itrenieeentnnioninctsiidiornnnisnmnianinatctinataianael passim

RN NT

IN THE

Supreme Court of the United States

OCTOBER TERM, 1997

No. 97-1324

GEORGE WASHINGTON,

+. Petitioner,

JOHN SUMMERVILLE, et al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

BRIEF FOR RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Seventh Circuit (Pet. App. la-21a) is reported at 127

F.3d 552 (7th Cir. 1997). The opinion of the United

States District Court for the Northern District of Illinois

(Pet. App. 22a-37a) is unreported.

STATEMENT

On March 9, 1991, two detectives of the Chicago

Police Department, including respondent John Summer-

ville, stopped an automobile near the intersection of Cer-

mak Road and Fairfield Street in the City of Chicago.

R. 12 at 9.5. See also R. 1 at 5. They arrested petitioner

George Washington, who was a passenger in the automo-

bile. R. 1 at 5; R. 12 at 95. Petitioner alleges that,

during the arrest, Detective Summerville hit petitioner’s

2

head against the trunk of the car. R. 12 at 47. Peti-

tioner was then taken to the Area IV headquarters of the

Chicago Police Department. R. 12 at q 8.

Upon their arrival at Area IV headquarters, the de-

tectives took petitioner to an interrogation room. R. 12

at § 9. Petitioner contends that the detectives then hit his

head against a wall of the interrogation room, knocking

him unconscious. R. 12 at 48. Petitioner alleges that

sometime later, he was handcuffed to the interrogation

room wall. R. 12 at 9. According to petitioner, Detec-

tive Summerville then struck him in the throat and de-

manded that he make a statement. R. 12 at 4 10. Peti-

tioner stated that he “did not know what Summerville

was talking about,” and Detective Summerville left the

room. R. 12 at ¥ 10.

According to petitioner, respondent Patrick Foley, an-

other detective, then entered the interrogation room. R. 12

at 411. Petitioner alleges that Detective Foley told him

that his treatment would become worse if he did not

cooperate. R. 2 at 911. Petitioner claims that he told

Detective Foley that he did not know what he was talking

about, and Detective Foley hit him in the face. R. 12 at

411. Detective Summerville reentered the room. R. 12

at ¥ 12.

Petitioner further alleges that Detective Summerville

next told him to make a statement to the state’s attorney.

R. 12 at ¢ 12. When petitioner told Detective Summer-

ville that he did not know what he was talking about,

Detective Summerville allegedly kicked petitioner in the

groin. R. 12 at ¢ 14. According to petitioner, Detective

Summerville left and, after some time, returned, again

requesting a statement. R. 12 at 413. When petitioner

refused, Detective Summerville left the interrogation room.

R. 12 at § 14. According to petitioner, Detective Summer-

ville reurned with a “big flashlight.” R. 12 at 414. Peti-

tioner alleges that when he again refused to make a state-

ment, he was hit in the ribs with the flashlight. R. 12 at

3

qq 14, 15. After Detective Summerville left the interroga-

tion room, respondent James Capesius, another Chicago

police detective, entered. R. 12 at § 15. Petitioner con-

tends that Detective Capesius told him that his treatment

would become worse if he continued to refuse to coop-

erate. R. 12 at 415. Petitioner was told that he should

give a statement, repeating what Detective Summerville

told him to say. R. 12 at 417. Petitioner alleges that

Detective Summerville hit him in the ribs when he refused

todo so. R. 12 at ¥ 17.

Petitioner then allegedly agreed to give a statement. R.

12 at ¢ 17. Detective Summerville returned to the inter-

rogation room with the assistant state’s attorney. R. 12

at ¢ 18. Petitioner then made statements to the assistant

Sstate’s attorney. R. 12 at ¥ 18.

On April 5, 1991, Washington was indicted on charges |

of murder. R. 12 at 421. See also R. Loose Pleadings |

(vol. 3) at Exh. 2. Petitioner filed a motion to suppress

the statements that he made to the assistant state’s attor-

ney. R. 12 at ¢22. The state court denied petitioner’s

motion after extensive testimony. R. 32 at 2. See also

R. Loose Pleadings (vol. 2) at Exh. F. The state court

determined that petitioner’s account of what occurred

during the arrest and questioning was not credible. R.

Loose Pleadings (vol. 2) at Exh. F. Petitioner moved

for reconsideration of the court’s decision on or about

September 16, 1993 and September 22, 1993. See R.

Loose Pleadings (vol. 2) at Exh. G. The state court

denied both motions. R. 32 at 2-3.

On October 12, 1993, at the prompting of the court,

Washington filed a third motion for reconsideration, based

on newspaper reports that Detective Summerville was re-

ceiving treatment for substance abuse. R. 32 at 3. R.

Loose Pleadings (vol. 2) at Exh. H. See also R. Loose

Pleadings (vol. 3) at Exh. 6. On March 4, 1994, the

court held a hearing on the motion. See R. Loose Plead-

ings (vol. 2) at Exh. I. After examining records related

4

to Detective Summerville’s substance abuse problems, the

court ordered that petitioner's motion to reconsider be

reopened. R. Loose Pleadings (vol. 2) at Exh. I. The

court went on to consider petitioner’s motion to suppress.

The court noted that, according to counsel for Detective

Summerville, the detective would assert his Fifth Amend-

ment privilege against compelled self-incrimination in re-

sponse to any questions pertaining to his substance abuse.

R. 32 at 3. See R. Loose Pleadings (vol. 2) at Exh. I.

Given the information before it, the court determined that

“there is relevant inquiry that the Defendant in this case

is entitled to inquire into and . . . the witness refuses to

testify pursuant to his constitutional rights.” R. Loose

Pleadings (vol. 2) at Exh. I at 7. The court then granted

petitioner’s motion to suppress his statements to the assist-

ant state’s attorney. R. 12 at 423; R. 32 at 3. See R.

Loose Pleadings (vol. 2) at Exh. I. Then, on May 23,

1994, the state court granted the prosecution’s motion

for a nolle prosequi, dropping the charges against peti-

tioner. R. 32 at 3.

On January 7, 1994, petitionci filed a federal civil

rights action pursuant to 42 U.S.C. § 1983, naming as

defendants the State’s Attorney for Cook County, Illinois,

Jack O’Malley, Assistant State’s Attorney Michael Cawley,

and Detectives Summerville, Foley, and Capesius. R. 1.

On April 29, 1994, the district court ordered petitioner

to show cause why his action was not untimely under

the appropriate statute of limitations. R. 5. When no

response was received, the district court dismissed the ac-

tion on June 9, 1994. R. 6, 7. Nine months later, counsel

for petitioner moved for relief from that judgment. R. 9,

11. The court granted petitioner's motion in an order

dated March 8, 1995. R. 10.

On March 9, 1995, petitioner filed an amended com-

plaint, again under Section 1983, asserting federal civil

rights and state-law claims against Detectives Summerville,

Foley, and Capesius, and the City of Chicago. R. 12.

In count I, petitioner alleged that the detectives arrested

5

him without probable cause in violation of the Fourth

Amendment. R. 12 at 99 26, 27. Petitioner alleged in

count II that the detectives used or failed to prevent the

use of excessive force against him during his arrest, also

in violation of the Fourth Amendment. R. 12 at 4 28-

29. In count III, petitioner alleged that he was wrongly

confined and prosecuted in violation of his Fourth and

Fourteenth Amendment rights. R. 12 at 4430-31. In

count IV, petitioner claimed that the detectives conspired

to deprive him of his rights under the Fourth and Four-

teenth Amendments. R. 12 at 4432-35. Petitioner’s re-

maining claims were brought under state law for inten-

tional infliction of emotional distress, malicious prosecu-

tion, and for imposition of vicarious liability on the City

as the detectives’ employer. R. 12 at 44 36-45.

On April 3, 1996, the district court entered judgment

| against petitioner. The district court concluded that peti-

tioner had filed his claims for unlawful arrest (count I)

and use of excessive force (count II) after the expiration

of the two-year statute of limitations applicable to Section

1983 claims in Illinois. Pet. App. 26a-28a. The district

court also ruled that petitioner’s federal malicious prose-

cution claim (count III) alleged no constitutional viola-

tion other than the time-barred Fourth Amendment claims,

and, accordingly, dismissed it on limitations grounds as

well. Pet. App. 28a-3la. Moreover, since the allegations

underlying petitioner’s conspiracy claim were not timely,

the conspiracy claim was also dismissed. Pet. App. 34a-

35a. The district court added as well that petitioner had

failed to establish that his prosecution in state court had

been terminated in a manner inconsistent with his inno-

cence, a defense to both the federal and state-law mali-

cious prosecution claims. Pet. App. 3la-34a. The dis-

trict court also dismissed petitioner’s remaining state-law

claims on limitations and other grounds. Pet. App. 35a-

36a. Petitioner appealed.

On September 17, 1997, the court of appeals affirmed.

Following its prior opinion in Booker v. Ward, 94 F.3d

ee

6

1052 (7th Cir. 1996), cert. denied, 117 S. Ct. 952

(1997), the court concluded that Fourth Amendment

claims alleging an arrest without probable cause or the

use of excessive force accrue when those constitutional

violations occur, and not when a related state-court prose-

cution ultimately terminates, since Fourth Amendment

claims are not necessarily inconsistent with the validity of

a pending charge against the federal plaintiff. Pet. App.

5a-9a. The court also held that petitioner’s federal mali-

cious prosecution claim alleged no constitutional violation

other than the time-barred Fourth Amendment claim, and

for that reason encountered the same limitations bar. Pet.

App. 12a-16a. The court added that petitioner’s state-law

malicious prosecution claim was insufficient because he

could not establish that his prosecution had been termi-

nated in a manner indicative of his innocence. Pet. App.

10a-12a. Judge Rovner concurred in part and dissented

in part. She agreed that petitioner's unlawful arrest and

excessive force claims were time-barred (Pet. App. 16a),

but concluded that petitioner’s federal and state-law mali-

cious prosecution claims were meritorious. Pet. App. 16a-

21a.

ARGUMENT

Although petitioner claims that he was arrested without

probable cause and subjected to the use of excessive force

during the course of that arrest and the interrogation

following it, all in violation of the Fourth Amendment,

he failed to bring suit for nearly three years after his

arrest and interrogation. This was beyond the two-year

limitations period for Section 1983 actions in Illinois.

Petitioner’s sole complaint about the Seventh Circuit's de-

cision holding these claims to be time-barred rests on the

happenstance that he was prosecuted in state court as a

consequence of his arrest. Thus, he claims that he was

unable to bring suit for the violations of the Fourth

Amendment he has alleged until the charges against him

were dismissed. For this, he relies on this Court’s decision

in Heck v. Humphrey, 512 U.S. 477 (1994), holding

7

that a Section 1983 claim often cannot be brought if it nec-

essarily contests the validity of a state court’s judgment.

The court of appeals sensibly rejected that submission on

the straightforward basis that petitioner’s ability to recover

for a constitutionally unreasonable arrest does not turn on

whether he was later convicted on any charges brought

against him stemming from that arrest. The guilty and

innocent alike are entitled to recover if they are arrested

without probable cause or subjected to excessive force

within the course of that arrest. It is for that reason that

petitioner’s claims, even if ultimately successful, would not

be inherently inconsistent with the validity of the charges

against him or even an ensuing conviction, and thus, that

they accrued when the constitutional violations occurred.

1. The general rule is that a cause of action accrues

and the limitations period begins running when the plain-

tiff learns of an illegal act, and not when its consequences

are felt. See Chardon v. Fernandez, 454 U.S. 6, 8 (1981)

(per cusiam); Delaware State College v. Ricks, 449 U.S.

250, 258 (1980). Here, the alleged violations of the

Fourth Amendment occurred at the time of petitioner’s

arrest or March 9, 1991. Petitioner, however, did not sue

the detectives who participated in his allegedly unconstitu-

tional amest and interrogation until January 7, 1994. The

statute of limitations for Section 1983 claims arising in

Illinois is two years. See, e.g., Farrell v. McDonough,

966 F.2d 279, 282 (7th Cir. 1992), cert. denied, 506

U.S. 1084 (1993); Kalimara v. Illinois Department of

Correctons, 879 F.2d 276, 277 (7th Cir. 1989). Since

petition did not sue Detectives Summerville, Foley, and

Capesiu; within two years of their allegedly unconstitu-

tional arrest and interrogation of him, and since petitioner

plainly «new of their involvement in that arrest and in-

terrogaton and hence was able to bring suit within the

limitatims period, the court of appeals quite naturally

conclud:d here that petitioner’s claims against them under

the Fouth Amendment were time-barred.

Petitioner nevertheless argues that he overcame this

limitations problem because, under his reading of Heck

v. Humphrey, his Fourth Amendment claims did not

accrue until the criminal case against him was dismissed.

See Pet. 6-8. In Heck, this Court held that Section 1983

claims that would have the effect of rendering the plain-

tiff’s conviction or sentence invalid do not accrue until

the conviction or sentence has been vacated. See 512

U.S. at 489-90. The Court reasoned that when the plain-

tiff, in order to prevail on his Section 1983 claim, would

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

been convicted,” a Section 1983 claim goes to the validity

of the criminal conviction and cannot properly be raised

while the judgment of conviction remains outstanding.

See id. at 486 n.6. Accordingly, “the district court must

consider whether a judgment in favor of the plaintiff

would necessarily imply the invalidity of his conviction or

sentence.” Jd. at 487. The Court made clear, however,

that its holding did not bar all Section 1983 claims by

those who remain in custody as the result of criminal

charges: “If the district court determines that the plain-

tiffs action, even if successful, will mot demonstrate the

invalidity of any outstanding criminal judgment against

the plaintiff, the action should . . . proceed. .. .” Id.

(emphasis in original).

Heck accordingly bars only claims that necessarily

impugn the validity of a conviction. See Edwards v.

Balisok, 117 S. Ct. 1584, 1587-88 (1997). Petitioner

was of course never convicted, but the court of appeals

agreed with him that the holding of Heck applies to

pending charges no less than outstanding convictions. Fol-

lowing Smith v. Holtz, 87 F.3d 108 (3d Cir.), cert. de-

nied, 117 S. Ct. 611 (1996), the court reasoned that

petitioner’s cause of action would not accrue under Heck

while charges were pending against him if his Section

1983 claims “would necessarily imply the invalidity of a

potential conviction on the murder charge against him.”

9

Pet. App. 8a. But the court of appeals concluded that

petitioner’s claims of an allegedly unconstitutional arrest

and interrogation accrued when those violations occurred,

and not later, because these Fourth Amendment claims

are not necessarily inconsistent with the validity of a pend-

ing charge. See Pet. App. at 8a-9a; see also Booker v.

Ward, 94 F.3d at 1056-57.

This holding was correct. The fact that a case against

an arrestee was initiated by an unreasonable search or

seizure does not necessarily mean that any charges brought

against the person searched and seized—or a subsequent

conviction—are invalid. If the prosecution can adduce

sufficient evidence not tainted by the Fourth Amendment

violation, it can sustain both the charges and an ensuing

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

the Court made the point quite clearly. “[T]he estab-

lished rule [is] that an illegal arrest or detention does not

void a subsequent conviction.” Jd. at 119. The Court

reiterated in United States v. Crews, 445 U.S. 463

(1980), that “[a]n illegal arrest, without more, has never

been viewed . . . as a defense to a valid conviction.” Z/d.

at 474. In Haring v. Prosise, 462 U.S. 306 (1983), the

Court held that a prisoner’s action to recover for an illegal

search and seizure was not barred by his plea of guilty to

possessing items found in the search because the validity

of the conviction “is simply irrelevant to the legality of the

search under the Fourth Amendment or Prosise’s right to

compensation from state officials under § 1983.” Jd. at

316. And in Heck itself, the Court offered as an example

of the type of claim that would not impugn the validity

of a conviction “a suit for damages attributable to an

allegedly unreasonable search . . . even if the challenged

search produced evidence that was introduced in a state

criminal trial... .” 512 U.S. at 187 n.7. As the Court

explained, “[bJecause of doctrines like independent source

and inevitable discovery, and especially harmless error,

such a § 1983 action, even if successful, would not neces-

10

sarily imply that the plaintiff's conviction was unlawful.”

Id. (emphasis in original) (citations omitted).

Indeed, the notion that persons accused of crimes can

recover for violations of their Fourth Amendment rights

only if and when they are ultimately acquitted is a radical

and indefensible interpretation of that Amendment. The

Fourth Amendment provides, without qualification, that

“(t]he right of the people to be secure in their persons,

houses, papers and effects, against unreasonable searches

and seizures shall not be violated” (U.S. Const. amend.

IV). This text makes insupportable any claim that only

persons found innocent of any wrongdoing are protected

from unreasonable searches and seizures. Indeed, cases

such as Haring v. Prosise make clear that even those who

admit their guilt can recover from violations of their

Fourth Amendment rights. Those rights exist wholly apart

from the disposition of criminal proceedings against the

person aggrieved by an unreasonable search and seizure,

and hence such a person need not wait for criminal pro-

ceedings to conclude before his cause of action accrues.’

Petitioner nevertheless argues that under Heck “there

must be an individualized inquiry in each case to deter-

mine whether a holding in favor of the plaintiff in the

civil case would be necessarily inconsistent with the plain-

tiffs conviction.” Pet. 6. But Heck requires that a Sec-

tion 1983 claim “necessarily imply” the invalidity of a

1In Albright v. Oliver, 510 U.S. 266 (1994), Justice Ginsburg

expressed the view that an individual arrested without probable

cause is subjected to a “continuing seizure” that does not end until

the prosecution terminates, and that only then does the limitations

period begin to run. See id. at 277-80 (concurring opinion). Peti-

tioner has never advanced a “continuing seizure” theory during this

litigation. Moreover, this theory has never been embraced by a

majority of the Court, and has been rejected by a number of cir-

cuits. See, e.g., Brooks v. City of Winston-Salem, 85 F.3d 178, 184

(4th Cir. 1996); Reed v. City of Chicago, 77 F.3d 1049, 1052 n.3

(7th Cir. 1996) ; Valencia v. Wiggins, 981 F.2d 1440, 1443-45 (5th

Cir.), cert. denied, 509 U.S. 905 (1993).

11

charge or conviction for its accrual to be delayed, and

here, petitioner’s argument is not based on any necessary

relationship between the alleged Fourth Amendment viola-

tions and the validity of the charge against him; as we

explain above, the charge against him was valid regardless

whether the prosecution intended to introduce evidence

against him at trial that might be the fruit of a Fourth

Amendment violation. Nor is the validity of a charge

undermined by any decision a judge may later make to

suppress some of the prosecution’s evidence, or even by a

prosecutor’s subsequent decision to dismiss a charge vol-

untarily. Because a claim that evidence the prosecution

intends to use at trial is the product of an unconstitutional

search or seizure does not require the dismissal of a pend-

ing charge, such a claim is not necessarily inconsistent

with that charge and hence has accrued under Heck.’

2. Petitioner claims that the Seventh Circuit’s holding

in this case is contrary to the law of no fewer than seven

other circuits. See Pet. 8-9. Most of the cases that peti-

tioner cites, however, are readily reconciled with the hold-

ing below.

For example, the decision in Smithart v. Towery, 79

F.3d 951 (9th Cir. 1996) (per curiam), actually em-

braces the reasoning of the Seventh Circuit here. Smithart

claimed that he had been subjected to excessive force

during the course of an arrest that resulted in his criminal

conviction. Although the court observed that Heck bars

his claims “[t]o the extent that Smithart seeks to invalidate

his assault conviction” (id. at 952). It went on to observe

| that his claim of excessive force had in fact accrued be-

cause “a successful section 1983 action for excessive force

would not necessarily imply the invalidity of Smithart’s

arrest or conviction” (ibid.). Similarly, although peti-

2 While petitioner correctly observes that Heck himself made

some Fourth Amendment claims (see Pet. 6), the Court was careful

to note in Heck that the only question before it “was whether money

damages premised on an unlawful conviction could be pursued

under § 1983.” 512 U.S. at 480 n.2.

————_ <_< $$ _______—

12

tioner does not mention the decision, in Brooks v. City of

Winston-Salem, 85 F.3d 178 (4th Cir. 1996), the court

also took the approach of the Seventh Circuit, reasoning

that a claim of arrest without probable cause is not inher-

ently inconsistent with the validity of a conviction even if

evidence derived from the arrest is utilized to obtain that

conviction. See id. at 182-83. See also Wells v. Bonner,

45 F.3d 90, 95 (5th Cir. 1995) (assuming that an exces-

sive force claim did not go to the validity of a conviction

and hence accrues when misconduct occurs). Cf. Simmons

v. O’Brien, 77 F.3d 1093, 1094-97 (8th Cir. 1996) (Fifth

Amendment claim of coerced confession accrued at the

time confession was obtained).

Two of the other cases petitioner cites are about so-

called malicious prosecution claims, and not claims alleg-

ing arrest without probable cause or the use of excessive

force during an arrest. In Calero-Colon v. Betancort-

Lebron, 68 F.3d 1 (1st Cir. 1995), the plaintiffs sued for

malicious prosecution and each claimed that he “did not

know the true nature and extent of the scheme that led to

arrest until after he had been acquitted.” Jd. at 2. Under

those circumstances, the court held that their cause of

action did not accrue until acquittal. See id. at 3-4. In

Whiting v. Traylor, 85 F.3d 581 (11th Cir. 1996), the

plaintiff also brought a Section 1983 action for “malicious

prosecution,” and the court concluded that because mali-

cious prosecution actions depend on the outcome of the

state court proceedings, such a cause of action does not

accrue until state proceedings terminate. See id. at 585-86.

Assuming that there is a cause of action for a “malicious

prosecution” under Section 1983, whether or not these

cases correctly apply accrual principles to such actions

does not matter here, since petitioner has not pressed his

malicious prosecution theory in this Court. Hence these

cases have little bearing on the question that petitioner

does press.*

8 Whether a Section 1983 cause of action exists for malicious

prosecution is very much an open question. See Albright v. Oliver,

13

Jackson v. Vannoy, 49 F.3d 175 (Sth Cir.) (per

curiam), cert. denied, 116 S. Ct. 148 (1995), is also

quite different from this case. There, the plaintiff's parole

had been revoked solely on the basis of his arrest, and

hence a claim that he had been illegally arrested would

necessarily have impugned the validity of his parole revo-

cation. See id. at 176-77. In Alvarez-Machain v. United

States, 96 F.2d 1246 (9th Cir. 1996), the plaintiff's

claims also depended on the validity of his arrest. There,

the plaintiff challenged his abduction in a foreign country

by federal agents who brought him to the United States

to face charges, claiming that they had done so in viola-

tion of an extradition treaty. That claim quite plainly

went to the validity of the charges brought against him.

See id. at 1250-51. Here, as we explain above, the uncon-

Stitutionality of petitioner’s arrest or interrogation would

not have been a defense in the criminal case against him.

Hence, cases in which the plaintiff's attack on his arrest,

if sustained, would necessarily require his release from

custody have no bearing on this case.

Three of the other cases on which petitioner relies pro-

vide no basis to believe that there is a conflict between

the law in the circuits that decided them and the law in

the Seventh Circuit. Two of these decisions are unpub-

lished, nonprecedential opinions of the Ninth Circuit,

which contain little analysis or reasoning and even lack

helpful descriptions of the plaintiffs’ claims. See Newman v.

Jensen, 1997 WL 665701 (9th Cir. 1997); Helmet Law

Defense League v. California Highway Patrol, 1997 WL

547956 (9th Cir. 1997). Similarly, in Mackey v. Dickson,

47 F.3d 744 (Sth Cir. 1995) (per curiam), the pro se

complaint was “confusing.” Jd. at 746. The court re-

510 U.S. at 275 (plurality opinion). In this case, the court of

appeals rejected petitioner’s malicious prosecution theory by con-

cluding that he had alleged no violation of federal law other than

his time-barred claims for arrest without probable cause and the

use of excessive force. See Pet. App. 13a, 16a. Petitioner does not

quarrel with that holding in this Court.

4

manded the case to the district court because it could not

tell if Mackey’s claims necessarily impugned the validity

of his conviction. Ibid.

As for petitioner’s three remaining cases, we acknowl-

edge that these decisions are inconsistent with the holding

below. In each case, the court concluded that allegations

that an unreasonable seizure produced evidence that was

important to the prior criminal case against the plaintiff

stated a cause of action that would not accrue until the

plaintiff's conviction were vacated. See Hudson v. Hughes,

98 F.3d 868, 871-72 (Sth Cir. 1996); Schilling v. White,

58 F.3d 1081, 1085-85 (6th Cir. 1995); Woods v.

Candela, 47 F.3d 545, 546 (2d Cir.) (per curiam), cert.

denied, 116 S. Ct. 54 (1995). With respect, we think

these decisions misapprehend the Court’s reasoning in

Heck as well as the teaching from other of the Court’s

cases that allegations of an unreasonable search or seizure

do not invalidate a subsequent charge or conviction and,

thus, that these allegations are not necessarily inconsistent

with an outstanding judgment under which an individual

remains in custody.

What is more, the rationale for the view that claims of

false arrest and excessive force accrue when the constitu- _

tional violation occurs and not when subsequent criminal

proceedings are terminated has yet to be reexamined by

these other circuits in light of the forceful explication of

its position by the Seventh Circuit in a trio of its recent

opinions, Booker v. Ward, the decision below, and the

even more recent decision in Gonzalez v. Entress, 133

F.3d 551 (7th Cir. 1998), in which the court addressed

at some length the Sixth Circuit’s reasoning in Schilling,

explaining:

Part of Schilling’s rationale—that Heck applies to per-

sons detained pending trial, as well as to those who

have already been convicted—is unexceptional. But

to say that Heck “applies” is not to say that it re-

quires dismissal of a suit seeking damages for the

15

arrest or search, as opposed to damages for wrongful

conviction. Wrongful invasions of privacy are action-

able in trespass, and wrongful detentions actionable

under statc law and the fourteenth amendment, no

matter what happens to a criminal prosecution. Sup-

pose a person says something like “I was arrested

without probable cause and spent a night in jail until

my wife came up with bail money.” That injury is

compensable whether or not the person is later con-

victed—indeed, whether or not he is later prosecuted.

Id. at 553 (citation omitted). Accordingly, other circuits

may reconsider their view in light of the Seventh Circuit’s

recent and cogent explanations in support of its rule.

3. Petitioner advances only one policy argument in

support of his position, suggesting that the rule embraced

below can lead to inconsistent results or otherwise inter-

fere with ongoing state proceedings if a state criminal

proceeding addresses the merits of the defendant’s Fourth

Amendment claim at the same time that that individual is

forced to prosecute the same claim in a Section 1983

action in order to satisfy the limitations period. See Pet.

7-8. The likelihood that the state and federal courts will

reach truly inconsistent results is overstated at best, since

a federal court is obligated to give a state court’s findings

and judgment the same preclusive effect as they would

receive in the courts of the rendering state. See, e.g.,

Kremer v. Chemical Construction Corp., 456 U.S. 461

(1982); Allen v. McCurry, 449 U.S. 90 (1980). And

the Court anticipated parallel proceedings in Heck, and

explained that when a Section 1983 action is brought

while a related state prosecution is pending, the federal

action can be stayed if it would interfere with ongoing

state proceedings. See 512 U.S. at 487 n.8.

Indeed, it is petitioner’s position that leads to imprudent

results. On petition’s view, a Section 1983 plaintiff can

wait for many years before bringing his claims relating to

his arrest and interrogation, since it may well take many

years before the state courts vacate a conviction resting

16

on evidence obtained in violation of the Fourth Amend-

ment.* The problems that inhere in litigating such stale

claims, when memories have faded and records have been

lost or destroyed, should be obvious. Such a delay is

unavoidable in cases like Heck where the invalidity of a

conviction is an element of the constitutional violation,

such as cases in which the plaintiff contends that his con-

viction rests on the suppression of exculpatory evidence

and accordingly must show not only that exculpatory evi-

dence was suppressed but that it materially contributed

to his conviction. See, e.g., Kyles v. Whitley, 115 S. Ct.

1555, 1565-68 (1995). But such a result is surely un-

warranted here. When a plaintiff claims that he has

been arrested without probable cause or subjected to ex-

cessive force during the course of that arrest, all the evi-

dence necessary to litigate the constitutionality of the

police conduct is available as soon as that conduct occurs.

There is accordingly no justification for delaying litigation

about such conduct for many years, a consequence of the

rule petitioner urges.

Moreover, petitioner’s insistence on a case-by-case in-

quiry into whether unconstitutionally obtained evidence is

necessary to the prosecution is especially difficult to apply

if the plaintiff chooses to bring suit while charges against

him are still pending: in such cases it will be impossible

to know what evidence will be admitted at trial and how

central any tainted evidence may be to the prosecution’s

case. Thus there is no basis under petitioner’s test to

determine if such a claim is barred by Heck. This practi-

cal problem also argues against petitioner’s reading of

Heck as requiring case-by-case analysis of whether tainted

evidence is necessary to support a charge or conviction.

When the accused has not been tried or convicted, it sim-

4 For example, in Booker v. Ward the plaintiff brought suit within

two years of the date that his conviction was vacated, but more

than seven years after his allegedly unconstitutional seizure. Sce

94 F.3d at 1056.

17

ply cannot be said that an alleged Fourth Amendment

violation would necessarily taint the charge or a subse-

quent conviction. Petitioner’s eagerness to revise stale

claims thus overlooks Heck’s primary purpose of barring

claims that are inconsistent with an outstanding state-

court judgment. Under petitioner’s approach, there will

be no way to determine which claims of accused persons

facing trial have accrued, and which must await a favor-

able disposition in state court.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

BRIAN L. CROWE

Corporation Counsel

of the City of Chicago

LAWRENCE ROSENTHAL *

Deputy Corporation Counsel

BENNA RUTH SOLOMON

Chief Assistant

Corporation Counsel

TIMOTHY W. JORANKO

Assistant Corporation Counsel

City Hall, Room 610

Chicago, IL 60602

(312) 744-5337

Attorneys for Respondents

* Counsel of Record