Over at SCOTUSblog.com, I’ve been noodling this case currently pending in the Supreme Court for over a week, posting both pre- and post-argument accounts. It is a difficult case to figure out, because it involves not only constitutional principles but also statutory considerations about how to administer “constitutional torts” in federal court under 42 U.S.C. §1983.
Now that I’ve actually listened to the oral argument, I think some confusion is clearing up, at least for me. After a quick recap of the facts below, I’ll suggest that the key to the case is determining what an unreasonable Fourth Amendment seizure is, in the context of prolonged detention in the criminal process based on false police evidence that the courts don’t discover til later. And that the need for a clear determination of “unreasonableness” in the federalism context of §1983 suits aimed at state criminal proceedings is what supports adopting a “favorable termination” requirement for when such a Fourth Amendment claim accrues.
The facts, Manuel’s allegations, and the rulings below.
Elijah Manuel was arrested for unlawful possession of the drug ecstasy. He was detained, through a first appearance before a judge and a later grand jury indictment. But after a police lab report came back showing that the substance Manuel possessed was not illegal, the prosecution dismissed the charges and he was released after 48 days in jail.
Two years later (the statute of limitations being two years), Manuel filed a federal civil rights lawsuit against the City of Joliet and various law enforcement officers. Manuel alleged that the police had known from the moment they arrested him that he had not possessed any unlawful substance, but that they had repeatedly lied, in reports and to prosecutors and judges, in order to keep Manuel detained. He alleged that his prolonged detention based on knowingly false evidence violated the Fourth Amendment. And he alleged that various principles should be “borrowed” from the analogous state tort of “malicious prosecution” (such borrowing is an accepted practice in §1983 cases). Because a malicious prosecution case can’t be filed until there is a “favorable termination” of criminal changes, Manuel argued that his federal lawsuit, filed just under two years after his release, was timely.
Counsel for the City moved to dismiss Manuel’s lawsuit, arguing that the Fourth Amendment is the wrong basis for such a lawsuit, and that in any case Manuel’s lawsuit was barred by the statute of limitations because, if he had a Fourth Amendment claim, it “accrued” either on the day he was falsely arrested or the day he was detained by court process. Because his complaint had not been filed until more than two years after those dates, it should be dismissed. The district court did dismiss the case, and on Manuel’s appeal the Seventh Circuit agreed with the district court (in a somewhat cryptic unpublished per curiam Order) on both arguments: (1) the Due Process Clause, rather than the Fourth Amendment, should govern constitutional “malicious prosecution” suits; and (2) even if Manuel had some Fourth Amendment claim, it had accrued when he was first detained, which was more than two years before he filed his case.
Three Supreme Court precedents confuse the current case. The Seventh Circuit’s no-Fourth-Amendment ruling was in conflict with ten other Circuits. But it was somewhat understandable, because the Supreme Court itself was split on the question twenty years earlier in Albright v. Oliver, with four Justices advocating a Fourth Amendment basis and two others (in a Justice Kennedy concurrence) arguing that the Due Process clause better governs a malicious prosecution claim.
As for when such a claim accrues – that is, when is the first date that a plaintiff should recognize that he has a claim so that the statute of limitations begins to run – two opinions written by Justice Scalia (13 years apart), sent conflicting signals, with neither answering Manuel’s precise claim. First, in Heck v. Humphrey (1994), the Court had adopted a “favorable termination” accrual rule for §1983 claims analogous to malicious prosecution that would effectively invalidate a state criminal prosecution. But in Wallace v. Kato (1007), the Court ruled that for a federal Fourth Amendment claim of “false arrest,” the claim accrues earlier, on the first day that a person is “detained pursuant to legal process.” There is no doubt that Heck and Wallace are in some tension – and also no doubt that neither case addressed the precise scenario that Manuel presents. Why a claim of “unreasonable” criminal detention ought not accrue until some independent authority “favorable terminates” the charges.
How to combine Albright, Humphrey and Wallace to address Manuel’s specific allegations is far from clear. But I think substantial confusion is generated by failing to clearly separate the two questions: first, what constitutional provision best applies to a claim of unlawful prolonged detention? And second, what statute of limitation “accrual” rules should apply? This second question is one of policy under §1983, not constitutional law, that involves competing considerations including federalism. I think it is a mistake to try to answer the second question by applying the Fourth Amendment.
The answer to the first question seems easy. In fact, the City of Joliet, and the Solicitor General’s office arguing as amicus, agreed with Manuel that the Fourth Amendment should apply, at least through the initial judicial detention. This is how ten other Circuits have ruled. Indeed the Court long ago ruled in Gerstein v. Pugh that the Fourth Amendment governs detentions ordered by judicial process after arrest (as well as the arrest itself).
Assuming a Fourth Amendment claim begins at the first moment of a false arrest, the Justices repeatedly asked, at the Manuel oral argument, when a Fourth Amendment claim would end. What about a case where the knowingly false evidence is not discovered until appeal, asked Justice Kennedy? I do not think that question has to be answered at all here. But I think Justices Ginsburg and Sotomayor had it right when they suggested that the Fourth Amendment tort continues until the wrongful detention ends, even if that is not until appeal, or even after. (This assumes, of course, that the detention was “unreasonable,” a standard that may well not be the same as “wrong.”)
The second question that Manuel presents, however, is not when the Fourth Amendment tort begins or ends, but rather, when does such a claim “accrue”? It is vitally important to recognize that, in tort law, “accrual” is not always the same as “when does the tort begin?” In fact, insofar as I understand tort law, it is a recognized tort principle that a claim may not “accrue” until a reasonable plaintiff would recognize, or “discover,” that he or she has a claim.
Of course, in most cases, the date on which tort damage first occurs is the same date that the claim “accrues,” because recognition of the damage is recognition that a claim is possible. But in “delayed discovery” situations, which can arise in fraud cases, a claim can be held not to accrue until some time after money was first lost, where the “facts constituting the fraud” could not reasonably have been discovered. (I’m quoting California Civil Code § 338(d) here.) Perhaps “knowingly false evidence used by the police” falls into such a “fraud” category.
I do not claim to be a tort law expert. But the key word in the Fourth Amendment is “unreasonable.” A criminal defendant has no Fourth Amendment claim just because he is detained; his detention must be “unreasonable.” And in the huge majority of criminal cases, we normally presume that criminal detentions ordered by court processes are “reasonable,” at least until someone proves otherwise. It seems entirely appropriate, therefore, to require that a plaintiff such as Manuel not be permitted to file his claim until some authority has put him on notice that his detention has been, in fact, “unreasonable.”
This is where the “favorable termination” rule, drawn from the “closest [state law] analogy” (quoting Heck) — malicious prosecution — makes sense. Until some reliable process has determined that, in fact, a criminal defendant’s detention has been “unreasonable,” strong policy considerations suggest that he ought not have a federal method of intervention. Thus “favorable termination” of criminal charges, implemented either by a judicial actor or the prosecution itself, makes sense as an accrual rule for §1983 unlawful detention claims under the Fourth Amendment. Favorable termination is the signal by which a defendant reasonably can claim that his detention was, in fact, “unreasonable,” which is what the Fourth Amendment requires.
Here is where the important policy rationales explained by the Court in Heck v. Humphrey come into play. A favorable termination rule for federal prolonged detention cases is not merely a wise if “hoary” principle developed over years of repeated civil law testing and application. For §1983 cases it is a rule that avoids unsettling federal interventions into ongoing state criminal proceedings, and the possibility of unseemly “conflicting resolutions arising out of the same” facts. It avoids the constant filing of frivolous claims in federal courts by arrested state defendants while the state criminal process is ongoing. (It is also similar to an “exhaustion of remdies” requirement for federal habeas lawsuits.) But such a rule is also fair to defendants whose claims of unlawful detention are ultimately recognized by state courts or prosecutors. It does not unfairly cut off their claims due to the expiration of a statute of limitations they did not, reasonably, know was already running.
As Justice Sotomayor noted at the Manuel oral argument, many criminal defendants “vigorously” claim that they are innocent and that their detentions are unlawful. But normally, as Sotomayor noted, “they are not believed” by the state, at least “until some independent evidence is discovered.” A “favorable termination” rule for a §1983 Fourth Amendment claim of unreasonable (not just unlawful or mistaken) detention, addresses these realistic concerns. The favorable termination of criminal charges can serve as an independent recognition of the required “unreasonable” prong of a Fourth Amendment tort.
Conclusion: These questions are now unlikely to be answered in Manuel.
As my Scotusblog analysis speculates, the tone of the Manuel oral argument suggests that the Court will not reach the statute of limitations “accrual” question (and many others) in Manuel. It is easier simply to rule, as Justice Kagan repeatedly said, that the Fourth Amendment applies to a claim of unlawful criminal detention, and then remand the rest to the Seventh Circuit (which would then likely remand to the District Court) to work out further details of the claim.
And hard questions remain. For example, what to do in a rare (and hypothetical as far as I know) case where the state recognizes that a person has been detained based on knowingly false evidence, but then successfully detains and prosecutes based on other, untainted, evidence? Perhaps a clunky rule like “favorable Fourth Amendment finding of unreasonableness,” rather than favorable termination, should apply.
But this Term, because there are only eight Justices, the Court seems inclined to save its energies for battles that they consider more meaningful and that can be resolved without 4-4 ties. Thus a short “Fourth Amendment applies and remand for the rest” opinion could come out before Christmas (somewhat to the disappointment of lower federal courts and litigators – a need for uniform direction is why the Solicitor General’s brief went on to discuss many other aspects of a §1983 Fourth Amendment claim), But I think concentrating on the word “unreasonable,” and then separating out the implications that constitutional standard may have for the § 1983 policy considerations that led to adoption of a favorable termination rule in Heck, clarifies things. At least for me.
– Rory Little