Argument preview: Does the Fourth Amendment govern a “malicious prosecution” claim, and if so, how?
on Sep 28, 2016 at 3:24 pm
Sometimes one Question Presented can mask multiple issues. That seems to be the case with next Wednesday’s argument in Manuel v. City of Joliet, which is based on a federal Section 1983 claim filed by a man held in jail for 48 days on charges that the police allegedly knew to be false and that were later dismissed.
Title 42 U.S.C. §1983 has long provided a vehicle for federal courts to hear civil rights torts claims, and its complicated case law often turns on hoary common law tort doctrine from which Section 1983 sometimes borrows. Elijah Manuel describes his claim, for damages stemming from his allegedly false arrest through various court processes until all charges were dismissed 48 days later, as one for “malicious prosecution” (although he now seems to prefer “unlawful prolonged detention”). The primary question in this case is whether the Fourth Amendment or the due process clause of the 14th Amendment governs such a claim, a question similar to the question that six justices wrote separately about (none commanding a majority) some 22 years ago in Albright v. Oliver.
Albright, Heck and Wallace lead to the questions here
Kevin Albright had filed a claim asserting that his allegedly false arrest (quickly followed by release on bond) constituted a due process violation. A four-justice plurality ruled that the Fourth Amendment, not the due process clause, governed Albright’s claim (although Justice Anthony Kennedy, joined by Justice Clarence Thomas, suggested that due process should govern his claim if it continued beyond the bail decision, that is, if “legal process” continued a “malicious” prosecution). In the years since Albright, the federal courts of appeals, by “broad consensus,” have determined that the Fourth Amendment governs constitutional “malicious prosecution” claims, as even the U.S. Court of Appeals for the 7th Circuit recognized in this case (while saying it remained “bound” by its own contrary precedent). Two subsequent decisions, Heck v. Humphrey in 1994 and Wallace v. Kato in 2007, have debated but not settled the constitutional basis for Section 1983 “malicious prosecution” claims. So the main question in this case is whether the Fourth Amendment continues to govern such a claim even after an initial arrest, when a claimant’s detention is continued by “legal process” based on false government actions and evidence.
However, this case also presents the question of when the statute of limitations on such a claim begins to run. Manuel argues (as he must or his claim is untimely) that the clock did not start running on his claim until the charges against him were terminated in his favor by dismissal. Interestingly, if the court adopts this “favorable termination” rule, the limitations period would start well after the date on which Manuel’s alleged damages began to accrue – the first date of the false arrest. Frankly, the case law and briefing are quite complex, and neither party (nor the solicitor general, who will be arguing as amicus) addresses this second question head-on. But because the 7th Circuit affirmed dismissal of Manuel’s claim, the court must also address the statute of limitations question if Manuel is to win: If the question is not resolved in favor of Manuel, then dismissal was proper.
Because the application of tort law in the federal Section 1983 context is complicated and often fraught with political overtones, and the precedents are opaque, next Wednesday’s oral argument session may be less straightforward than it first appears. Moreover, Justice Antonin Scalia wrote in Wallace that the Court had never “explored the contours” of a constitutional malicious prosecution claim, and next week’s argument is likely a result of Scalia’s encouraging the justices to grant review. His unexpected death less than a month after the court agreed to take the case deprives his colleagues of the opportunity to ask him what he meant in Wallace (although there may be confidential internal memoranda to that effect).
Manuel’s allegations and lawsuit
On March 18, 2011, Elijah Manuel was arrested and charged with unlawful possession of ecstasy. He was detained for 48 days in jail; the charges were dismissed on May 4, 2011, after a state lab test showed that pills were not ecstasy or any other illegal substance. On April 22, 2013 – more than two years after he was first detained by court process, but less than two years after dismissal of the charges – Manuel filed a pro se federal civil rights complaint against various officers and the city of Joliet. (The parties all now agree that the relevant limitations period is two years.)
At this stage, the Supreme Court must accept Manuel’s allegations as true. Manuel alleges that his car was stopped by two police officers with a “history of harassing” him. He alleges that a field test conducted on pills found in his pocket was negative but that the officers arrested him anyway. He alleges that a technician at the police station again tested the pills with negative results, and then “lied in his report” that the tests showed “probable presence of ecstasy.” He also alleges that an arresting officer also filed a false report stating that from “training and experience” he “knew the pills to be ecstasy.” Based on these representations by the police, a judge ordered Manuel to be held in jail, both before and after he was formally indicted two weeks later.
On April 1, 2011, an Illinois state police lab test confirmed that the pills were not ecstasy. (The irony of its being April Fool’s Day is not noted in the briefing.) But Manuel’s detention in jail continued for another month until the prosecution learned of the lab report and moved to dismiss the charges. Manuel was released on May 5, 2011, 48 days after his arrest.
The procedural path to the Supreme Court
On April 22, 2013, Manuel filed a federal Section 1983 complaint, alleging that his prolonged detention based on knowingly false information without probable cause constituted unlawful detention in violation of the Fourth Amendment. The parties and the lower courts have all analogized Manuel’s claim to the common-law tort of malicious prosecution. The district court dismissed Manuel’s complaint, relying on 7th Circuit precedent holding that malicious prosecution claims are governed not by the Fourth Amendment but by the due process clause – and that under Parratt v. Taylor such due process claims cannot be brought in federal court when there is an adequate state law tort remedy.
It is unclear whether the district court dismissed Manuel’s malicious prosecution claim under the applicable two-year statute of limitations. One reading is that the district court agreed with the court’s statement in Heck v. Humphrey, as well as Justice Ruth Bader Ginsburg’s separate concurrence in Albright, that “a cause of action for malicious prosecution does not accrue until the criminal proceedings have terminated in the plaintiff’s favor.” While the justices may seek to confirm this at oral argument, the basis for the district court’s dismissal appears to have been the Fourth Amendment versus due process distinction, not the limitations period.
The 7th Circuit affirmed dismissal, however, on two grounds in a short unpublished order. First the order explained that the court was bound by a prior 7th Circuit decision holding that due process, not the Fourth Amendment, governs a malicious prosecution claim, and that Parratt requires that due process claim to go to state court. Although noting the “broad consensus” among other courts of appeals that the Fourth Amendment should govern in a case such as Manuel’s, the 7th Circuit said that “argument is better left for the Supreme Court.”
Second, the 7th Circuit’s brief order also stated that even if Manuel had a Fourth Amendment claim, it “stemmed from [the date of] his arrest” and would be “time-barred” by the applicable two-year rule. As is not uncommon in unpublished per curiam orders, which are often drafted by staff attorneys, the meaning of this ruling is not completely clear. The court may have been referring only to “false arrest” cases, rather than a “malicious prosecution” during which detention is continued by judicial actions.
Arguments of the parties and the United States
The city’s merits brief begins with the statute of limitations issue, not reaching the Fourth Amendment versus due process issue until page 35. Joliet argues that Manuel’s claims are all “part and parcel of an unlawful arrest.” No matter how you define the claim, the city maintains, any limitations period must run either from the date of the arrest or from the first day that Manuel was “detained pursuant to legal process,” and not from some later “favorable termination” of the charges. Joliet says this is consistent with Justice Scalia’s mysterious statements in Wallace. The city argues that after the initial detention was continued pursuant to legal process, it is “the prosecution, not the arrest” that caused Manuel’s alleged injuries. “The Fourth Amendment does not govern prosecutions,” says Joliet. Rather, the due process clause should govern such post-process claims, and under Parratt the Illinois state law tort system is adequate.
Joliet also makes a significant argument that even if a claim like Manuel’s is governed by the Fourth Amendment, the “favorable termination” of charges should be irrelevant. If a detention (“seizure”) is unlawful because there is no probable cause, then the Fourth Amendment should provide a remedy no matter how the charges are later resolved. The city points out that if Manuel’s favorable termination argument is accepted, valid Fourth Amendment claims will be left without a Section 1983 remedy whenever the state succeeds in sustaining the charges (whether unlawfully or by using evidence it lawfully obtains by other means). The justices are likely to ask both sides about this surprising pro-plaintiff argument, and Joliet has some old Supreme Court cases to support it.
By contrast, Manuel relies on Albright and the large number of post-Albright opinions that support applying the Fourth Amendment to prolonged governmental “seizures” based on bad faith prosecutions. The four-justice plurality in Albright, he argues, expressly rejected the due process basis for a Section 1983 “claim to be free from prosecution except on the basis of probable cause.” “Fourth Amendment protections,” he asserts, do not “evaporate after initiation of legal process.” In Albright, Justice Anthony Kennedy (joined by Justice Clarence Thomas) agreed in a concurrence that a claim based on “arrest without probable cause must be analyzed under the Fourth Amendment.” However, Kennedy’s opinion went on to suggest that due process offers a better avenue for analyzing claims of malicious prosecution that continues beyond the first arrest. Fortunately, Justice Kennedy is still here to tell us what he meant in Albright. His views seem certain to garner much attention at oral argument.
As for the limitations period, Manuel argues that, as both Heck and Ginsburg’s concurrence in Albright maintain, a federal cause of action for malicious prosecution should accrue only “upon dismissal of the criminal charges.” Section 1983 case law often requires borrowing from common-law torts, and adopting this “favorable termination” rule would make his complaint timely. It is also good policy, he argues, as Heck discussed. A rule that federal malicious prosecution claims may not be filed until criminal proceedings have been terminated in the defendant-plaintiff’s favor will avoid unseemly parallel federal litigation while state criminal proceedings are ongoing, which otherwise could cause “significant federal/state friction.”
Further complicating matters, the United States is also appearing as amicus in this case, because the government is charged with defending, as well as sometimes prosecuting, federal law enforcement officers. The solicitor general’s brief argues in support of Manuel’s general Fourth Amendment position (which ten other federal courts of appeals have endorsed). With regard to the statute of limitations issue, the government agrees with the favorable termination rule advocated by Manuel, and thus concludes that Manuel’s claim for “unlawful pretrial detention” was timely “because it did not accrue until the drug charge was dismissed.”
But the United States then goes on to offer its own further, and detailed, arguments regarding other appropriate requirements for a constitutional malicious prosecution claim (noting that in Wallace the court stated that it had never “explored the contours” of such a Fourth Amendment claim and there is “an embarrassing diversity of judicial opinion” on the topic). The government argues that “liability [should] be imposed only in limited circumstances,” and that the limiting elements must be “pleaded with specificity.” The government asks the court to discuss requirements of “malice” (described as “intentional or reckless disregard”) as well as immunity doctrine and possible “special factors” that might counsel against implied Fourth Amendment actions against federal actors under Bivens. It is hard to predict whether the eight-justice court will be interested in taking on these additional issues at the behest of an amicus.
Conclusion: Genuinely looking for help on analytically complex issues
It seems likely that the court granted review in this case not only to settle whether a federal unlawful-detention claim is governed by the Fourth Amendment, but also to try to iron out some details regarding applicable pleading requirements. But despite the court’s apparent desire to “explore the contours” as Justice Scalia wrote for the court in Wallace, the justices may be less adventurous now that Scalia is not there to push them. Various justices have indicated over the past six months that they are striving for consensus, even if narrow, in their short-handed state.
Moreover, although it may be sensible to adopt the Fourth Amendment as the basis for unlawful detention cases, that may not be a foregone conclusion. As discussed above, Justice Kennedy suggested in Albright that while “false arrest” cases may be governed by the Fourth Amendment, the “malicious initiation of a baseless criminal prosecution” might be better considered under principles of due process. Justice Ginsburg’s Albright concurrence flatly disagreed; Joliet’s “no remedy for valid Fourth Amendment claims” argument will have to be addressed. It will be interesting to see whether the splintered Albright divergence persists, or whether the concerns Kennedy tentatively expressed in Albright have dissipated over the intervening two decades.
It is also possible that Justice Kennedy in Albright did not intend to limit his Fourth Amendment rationale to arrests, but rather was saying only that non-seizure claims of “malicious prosecution” – for example, a claim of baseless prosecution made by a defendant who is not held in jail – might be distinguished. If so, Kennedy might agree with application of the Fourth Amendment on the facts of this case. Notably, however, the national associations both of district attorneys and of counties have filed briefs in support of Joliet. Their interest in limiting liability in cases where prosecutions are dismissed is strong, and may inject a political tone into the legal arguments.
Undoubtedly some oral argument time will be spent “clarifying,” as Manuel’s reply brief puts it, the difference between a Fourth Amendment claim for false arrest, which is triggered by the arrest, and one for malicious prosecution after legal process has begun, and whether the “trigger” for the latter claims requires a later favorable termination of charges. If a favorable termination rule is adopted, not only must Joliet’s “remedy-less valid claims” argument be dealt with, but the court will also confront an interesting dichotomy: a cause of action that seeks damages for a period of detention starting soon after arrest, but that does not “accrue” until later. Civil litigators more experienced than I will have to answer whether this dichotomy is unique, or whether it is common for a lawsuit to seek damages for a period of time starting before the date the action may legally be filed.
As all of the foregoing suggests, federal civil rights cases based on common-law tort theories can be extremely complicated. The parties here do not purport to offer firm answers on every issue. Manuel, for example, closes his reply brief by noting that he has “no stake in [the] viability” of various possible due process claims beyond his Fourth Amendment detention. It seems that this oral argument will truly be an open-minded exploration by the justices of various options for defining a constitutional malicious prosecution claim. I think the justices will genuinely be looking for help from the advocates in this argument – which is, I think, as it generally should be.