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Argument analysis: A Fourth Amendment muddle may produce a limited ruling and remand

If the justices really were looking for detailed help from the advocates (as my preview suggested) in Wednesday’s argument in Manuel v. City of Joliet, the petitioner’s presentation didn’t seem to provide it. Whether a constitutional tort for an unlawful prolonged detention should be lodged under the Fourth Amendment is the narrow issue. Beyond that, whether that tort should be described as “malicious prosecution,” and what precisely its constitutional contours should be, present broader questions about which the justices seemed divided and confused. When clarity was not forthcoming from the oral advocates, by the end of the hour the justices seemed to be coming to the view that a limited ruling that the Fourth Amendment applies, with a remand for further analysis of many subsidiary issues, might be the best way out of the thicket.

A quick recap of the case

Elijah Manuel sued the city of Joliet and various law enforcement officers under the federal “constitutional tort” statute, 42 U.S.C. §1983, which allows people to sue in federal court for deprivation of their constitutional rights. Manuel alleged that law enforcement officers who knew that he did not possess ecstasy unlawfully arrested him anyway, and then repeatedly told prosecutors and judges that he did, so that Manuel was held in jail for 48 days until the charges against him were dismissed. He alleged that this knowingly false conduct caused his unlawful prolonged detention, or “unreasonable seizure,” in violation of the Fourth Amendment. He also called this violation “malicious prosecution” and argued that the federal court should “borrow” rules for that tort from state law, including a rule that says you can’t file a malicious prosecution claim until after “favorable termination” of the charges against you.

Manuel needed that “favorable termination” rule to avoid dismissal of his claim under a two-year statute of limitations (which all agree is properly borrowed from state law under Section 1983). He filed his lawsuit less than two years after the charges were dismissed, but more than two years after his arrest and subsequent detention by the Illinois court. But the U.S. Court of Appeals for the 7th Circuit affirmed dismissal of Manuel’s lawsuit. First, the appeals court ruled that the Fourth Amendment does not govern a claim of unlawful detention once “legal process” (that is, a court hearing) has kicked in. Instead, the due process clause of the Fifth Amendment is the proper constitutional hook (which would lead to dismissal for other reasons). Second, the court said that any Fourth Amendment claim Manuel might have had “accrued” the day he was unlawfully arrested, so his lawsuit was untimely in any case.

The city and the law enforcement defendants in this civil suit of course dispute Manuel’s factual allegations. But they are assumed to be true at this early dismissal stage.

Sometimes the “question presented” really matters

Manuel’s argument was presented by Stanley Eisenhammer, making what appears to have been his first appearance before the court. Eisenhammer began by saying that “this case is not about whether there’s some constitutional tort named malicious prosecution.” Chief Justice John Roberts immediately challenged him: “Well, but you need to characterize it as a malicious prosecution claim. Otherwise, it’s time-barred.” Justice Sonia Sotomayor then gently led Eisenhammer through his argument in a five-question series, seemingly toward the Fourth Amendment and away from “malicious prosecution.” But Roberts re-entered the discussion and read the “question presented” in Eisenhammer’s brief back to him:

“I was confused. I thought there was a malicious prosecution claim here, mostly because the question presented says ‘whether an individual’s Fourth Amendment right … continues beyond legal process so as to allow a malicious prosecution claim based on the Fourth Amendment.’”

Eisenhammer responded “but that’s just a label.” However, he then proceeded to agree, too readily I think, with every justice who questioned him in whatever direction the questions seemed to lead. The argument became muddled regarding when a Fourth Amendment claim might begin, or end, and whether state law elements of “malicious prosecution” should be adopted or have any Fourth Amendment relevance at all. Unfortunately, by the end of Eisenhammer’s 20 minutes of argument time (the solicitor general had the other ten as a “friend of the court” in the case), Sotomayor was still asking the question with which the argument began: “Where exactly is the Fourth Amendment violation? … what remains in this case?” (Sotomayor also said, later, that “the Chief Justice was right” about the question presented. This suggests there is room for narrow agreement among the justices, something the short-handed court appears to value.)

A narrow way out: say the Fourth Amendment can apply and then remand?

A few minutes earlier, Justice Ruth Bader Ginsburg had suggested a narrow way out of the case. Why not just say that “there is [a] Fourth Amendment claim under Section 1983” and then “just send everything else back to the Seventh Circuit”? She noted that “the circuits are split” on the contours of such a claim and that because the court said the Fourth Amendment doesn’t apply at all, “the Seventh Circuit hasn’t told us what they think about” the subsidiary questions. Eisenhammer said “I would be in agreement with that,” initially provoking an incredulous “You would be in agreement?” from Justice Elena Kagan. But shortly afterwards, Kagan appeared to take up Ginsburg’s suggestion: The contours of the Fourth Amendment claim, including the statute of limitations issue, said Kagan, is “something that we don’t have to decide.” Eisenhammer seemed to agree again, saying “I – I think you can decide whether there’s a Fourth Amendment claim … without referencing the statute of limitations.” He appeared to quickly calculate that a remand would be better for Manuel than a loss.

Assistant to the Solicitor General Ilana Eisenstein argued in support of Manuel, saying “we think that this Court should locate the constitutional right in the Fourth Amendment” because that amendment “does apply to pretrial detentions.” She then agreed that “Justice Kagan’s proposal that this go back” for the details is “absolutely appropriate.”

Interestingly, Michael Scodro, a former Illinois Solicitor General now at Jenner & Block who argued for the city of Joliet, also appeared to carefully not disagree with a limited Fourth Amendment ruling. “We are not disputing … that misstatements … that result in a finding of probable cause” at an initial judicial detention hearing give rise to “a Fourth Amendment violation.”

Joliet’s arguments and an interesting law clerk moment

Beyond this initial agreement, Scodro argued simply that Manuel’s claim was “untimely” under the Fourth Amendment or any other approach. He also stressed that the court should not recognize something called a “Fourth Amendment malicious prosecution claim,” because malicious prosecution is not the “proper analogy” for what is really a claim of unlawful Fourth Amendment detention. The analogy fails, Scodro argued, because an unlawful Fourth Amendment detention should be actionable regardless of whether later charges are “favorably terminated” or not. “Favorable termination” is a rule drawn from state malicious prosecution laws; and the chief justice seemed to agree with Scodro right from the start, saying “favorable termination has nothing to do with the Fourth Amendment claim, right?” When the argument drew to a close, Justice Samuel Alito also seemed to agree.

Toward the end of the hour, Kagan also suggested an unusual “forfeiture” argument against Joliet. She explained that “my clerk” had listened to the audio of the 7th Circuit argument (“I have not listened to the tape myself”), and “my clerk tells me” that Joliet appeared to concede the propriety of a “favorable termination” rule. Scodro disagreed with that interpretation (“having also listened to the argument”), but Justice Kagan said “it’s another reason why I think we should just send the whole thing back.”


Scattered throughout the argument were interesting and difficult subsidiary issues and hypotheticals about which the justices clearly disagreed. Justice Anthony Kennedy asked questions harking back to his due process concurrence in Albright v. Oliver, and both Roberts and Alito also seemed unsympathetic to aspects of Manuel’s positions. Justices Stephen Breyer, Ginsburg, and Sotomayor appeared more favorable. (Justice Clarence Thomas, as usual, said nothing during the argument.) However, to avoid splintering on the many questions that were discussed about potential Fourth Amendment detention claims – important and difficult issues that the 7th Circuit did not address – a limited Fourth Amendment ruling and remand seems likely in this case.

Recommended Citation: Rory Little, Argument analysis: A Fourth Amendment muddle may produce a limited ruling and remand, SCOTUSblog (Oct. 6, 2016, 4:26 PM),