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Friday, September 02, 2016

Which Part of the Constitution Prohibits Wrongful Detention?

If a cop fabricates evidence against you, and you’re held in jail for 47 days, have you suffered a constitutional violation?   Believe it or not, that’s an open question—or as I’ll explain, a partially-open question.  And it’s also a question that the Supreme Court will answer in Manuel v. City of Joliet, which will be argued at the outset of the Court’s term in October.

A quick squib on the facts: Elijah Manuel was a passenger in a car driven by his brother in Joliet, Illinois.  The cops pulled the car over, pulled Manuel out of the car and seized a bottle of pills in his pocket. (The cops also allegedly used excessive force during the stop, but that’s not at issue in the S.Ct. appeal.) The officers field tested the pills and said that they contained ecstasy.  The thing was, the pills did not contain ecstasy; the field test came back negative for a controlled substance.  The officers arrested him anyway and stuck to their story that the pills contained ecstasy.  When they got back to the station, the officers gave the pills to a technician who tested them again. Like the field test, this test showed nothing unlawful about the pills.  And also like the first test, the technician lied about the results.  So Manuel sat in jail.  Forty seven days later, after his attorney requested a copy of the lab report and the fraud was discovered, Manuel was released.

Manuel brought a § 1983 suit against the officers.  Sounds like a good suit, right?  I mean, there’s gotta be claim in there somewhere, doesn’t there?  Maybe not. 

Part of the problem with his case owes not to constitutional law but with the applicable statute of limitations. Wallace v. Kato holds that false imprisonment begins at the moment of wrongful detention and ends at the moment when legal process is provided (usually pursuant to a initial appearance or something akin to that).  Unfortunately, Manuel filed suit more than 2 years after his initial appearance.

But he was in jail long after his initial appearance.  Does he have a claim for that?  That’s the issue the Supreme Court will decide.  Constitutionally speaking, one can imagine three types of claims: (1) a substantive due process claim, (2) a procedural due process claim, and (3) a Fourth Amendment claim.  The first possibility—substantive due process—is off the table under Albright v. Oliver.  So that leaves procedural due process and the Fourth Amendment. 

Manuel thinks he has a Fourth Amendment claim.  The Fourth Amendment says, in effect, don’t seize people unless you have probable cause.  Manuel was seized for 47 days (though his claim for some of those days is time barred under Wallace v. Kato).  So he should have a claim, right?  The City of Joliet argues, to simplify it greatly, that the Fourth Amendment is aimed at cops, not prosecutors.  Once you are arrested and enter the justice system, the Fourth Amendment falls away and your right to be free from unlawful detention is basically procedural due process right.  Fair enough, but why doesn’t Manuel just bring a procedural due process claim?  The reason is that, under Parratt v. Taylor, a procedural due process claim does not accrue unless the claimant lacks a post-deprivation remedy.  And Manuel had a post-deprivation remedy here—a state law malicious prosecution claim (which, unfortunately, is probably time-barred now).  Thus, Joliet’s position is that no constitutional violation occurred (at least for the period of detention following his initial appearance). 

Thus, at its heart, Manuel is about where the Fourth Amendment drops off and procedural due process picks up.  My own view is that instead of talking about when the Fourth Amendment drops out of the picture as a matter of criminal procedure, why don’t we talk about it in terms of proximate cause? (Courts deciding Section 1983 cases routinely borrow tort law principles and proximate cause issues come up all the time.)  That is, why not ask whether the officers’ Fourth Amendment violation proximately caused Manuel’s detention? In this case, it’s clear that it did. Moreover, proximate cause principles also help sort out what should happen as the case proceeds through the system.  For example, suppose that the cops came clean to the prosecutor in this case but the prosecutor continued with the prosecution.  The officers would have a good argument that the prosecutor’s actions amounted to an intervening cause that cut off their liability. 

Finally, proximate causation solves one of the more difficult problems in these cases.  In some cases, the defendants don’t just spend 47 days in jail as a pretrial detainee, they spend years in jail as a prisoner.  If we look at this in terms of Fourth Amendment v. Due Process Clause, it’s hard to see how the Fourth Amendment should apply to a prisoner who’s sitting in jail 20 years after his arrest and trial. But if we look at it in terms of proximate cause, we don’t have to engage in some parlor game about whether the Fourth Amendment “applies” to people in jail.  

Don’t look for the Court to take a proximate cause approach.  The Court has gone far enough down a different road that it would be too difficult to back up and use a proximate causation rule.  If I had to make a prediction, I’d expect Manuel to win—mainly because there’s a 10-1 circuit split in his favor and because the SG filed a brief on his behalf.  Cutting against him is that the case will probably be heard by 8 justices and Kennedy wrote a concurring opinion in 1994 stating that wrongful detention after an initial appearance would state a procedural due process claim. 


Posted by Jack Preis on September 2, 2016 at 09:58 AM in Constitutional thoughts, Judicial Process | Permalink


Interesting post, Jack. Just off the top of my head, I would think one challenge with applying a proximate cause standard is that there are supposed to be lots of checks along the way -- decisions by prosecutors, judges, juries, etc. Am I right that this would require difficult and fact-specific litigation each time about exactly what window of detention was proximately caused by the unconstitutional act?

Posted by: Orin Kerr | Sep 2, 2016 2:45:03 PM

That's a reasonable concern, Orin. I'm less worried about that, but maybe that's because I've been reading cases where courts have been working out this issue. Proximate cause is not an easy rule to apply, but its fairly serviceable.

What appears to have emerged in the lower courts is that detention (whether before or after a conviction) can be proximately tied to a constitutional violation if the violation deprived other decision makers in the process (prosecutor, judge, jury) of information necessary to make a reasoned decision. In such cases, the decision of a jury, for example, is not an intervening act that cuts off the chain of causation because the decision is not, in some sense, worthy of credit.

In contrast, where an officer makes an constitutional error, and the error is known (or knowable) to the prosecutor and judge, then those decisions of those actors will cut off the chain of causation. A good example of this is Wray v. City of New York, 490 F.3d 189 (2d Cir. 2007).

In this way, the proximate causation inquiry ends up acting as a proxy for whether the officer committed some sort of fraud. Admittedly, you might still be right--a bright line rule might still be more efficient than a fraud test. But a bright line rule would foreclose compensation in the most egregious cases--multi-year periods of detention. I'm not one to argue that every constitutional violation requires a remedy, but I think the balance here--given what I've seen in the circuit courts so far--tilts in favor of a remedy.

Posted by: Jack Preis | Sep 2, 2016 4:35:59 PM

Interesting, and thanks for the response. It's also interesting that the Fourth Amendment test is purely objective -- the officer's subjective intent doesn't matter -- while a fraud test seems to imply some sort of subjective inquiry. As for a bright line rule foreclosing compensation in cases with the greatest harm, I suppose that depends on what the bright line alternative rule is, whether as a matter of Fourth Amendment law or due process.

Posted by: Orin Kerr | Sep 2, 2016 5:43:43 PM

The objective/subjective distinction in these cases is a real curiosity. I think the best explanation is that, when a constitutional right is mainly adjudicated as a defense--such as the Fourth Amendment--there are "translation" problems when the right is sometimes used as the basis for an affirmative claim. There is a whole apparatus of law that has grown up around § 1983, and that apparatus somehow seems to invade the province of the constitutional right itself. The best article on this that I'm aware of is by Jennifer Laurin: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1456799.

On where to locate the bright line rule, that's an issue that I couldn't fit in the post. You might be right on that, but I think I fall on the other side. The key issue here is that, to the degree that a procedural due process claim depends on the non-existence of a state remedy, constitutional rights will dip in and out of existence as state law changes over time. This is not necessarily all bad (I defend the practice in some contexts here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1361831), but it often depends on details that don't get cashed out in a standard inquiry into whether you have a remedy. In Virginia, for instance, state officers are immune from claims of simple negligence, but not immune for claims of gross negligence. So if you bring a procedural due process claim against a Virginia officer, whether you have a state remedy will often be a jury question. Do we have a trial just to figure out if you have a claim? (It would be great if plaintiffs would bring both state and federal claims, but they often don't, so this situation inevitably arises.) For that reason and others along the same line, I tend to think procedural due process is ill-advised for claims like these. Many thanks for your thoughts on this stuff.

Posted by: Jack Preis | Sep 2, 2016 8:16:59 PM

Most circuits agree (except the 7th) that a cause of action for wrongful imprisonment exists under the 4th Amendment. However, assuming the minority view is correct, that is what a preliminary hearing, trial and the common law tort of wrongful imprisonment remedies are for. Additionally, for falsification of evidence, it depends on what exactly was falsified. By way of example, perjured grand jury testimony wouldn't be actionable due to witness immunity.

Posted by: anon | Sep 2, 2016 11:32:13 PM

Full disclosure: In this case, I represent amici National Association of Counties, et al. Our brief takes a different view. We quite agree that one arrested without probable cause (because of fabricated evidence or otherwise) has a remedy under the Fourth Amendment, but we contend, relying on a long line of cases culminating in Wallace v. Kato, that the statute of limitations on that remedy begins to run when the arrestee leaves the custody of the arresting officers. Even if the arrestee is prosecuted as a consequence of the unlawful arrest, the statute of limitations is not ordinarily tolled merely because damages proximately caused by the unlawful conduct of the defendant continue to mount. Instead, in such a case, the arrestee is unlawfully searched and seized by the arresting officers only once, and after their seizure of the arrestee is at an end, they are not somehow liable for a second and distinct Fourth Amendment violation because prosecutors elect to press charges as a consequence of the arrest. To the contrary, if conduct of the arresting officers is not timely challenged, it must be regarded as lawful, and Manuel alleges no unlawful conduct on the part of the arresting officers within the limitations period.

Accordingly, our brief argues that in a case in which arresting officers search and seize an arrestee only once, allegedly without probable cause, the Fourth Amendment does not give rise to two separate claims, the second of which accrues for purposes of the statute of limitations only after a prosecution is concluded. For that reason, Manuel's Fourth Amendment claim, brought more than two years after he left the arresting officers' custody, was properly dismissed as time-barred.

Larry Rosenthal
Chapman University
Fowler School of Law

Posted by: Lawrence Rosenthal | Sep 2, 2016 11:33:04 PM

Larry that's not the majority view and illogical. There are two claims here, one against the officers and one against the city. The majority view is that the claim against the city doesn't accrue until after the prosecution concludes in the plaintiff's favor. Otherwise, it would be Heck barred.

Posted by: anon | Sep 2, 2016 11:38:02 PM

Anon: As it happens, there is no claim against the city based on Manuel's prosecution (and no basis to sue the city under section 1983 because no municipal custom, policy, or practice is alleged). The claim before the Supreme Court is directed at only the arresting officers. Moreover, Manuel was never convicted, and Wallace holds that there is no Heck bar on the running of the statute of limitations while a criminal charge is pending -- that bar only comes into place until after a conviction, and even then, footnote 7 of Heck exempts from its ambit many, perhaps all, Fourth Amendment claims.

Posted by: Lawrence Rosenthal | Sep 3, 2016 8:43:56 AM

Larry, thanks for your comments. I saw that argument in Joliet's merits brief and think it is the strongest one for the city here. What is the point of the statute of limitations on the false imprisonment claim if the claim can simply be re-characterized as a malicious prosecution claim? The merits of this argument hinge, to a great extent, on how much confidence one has in the viability of procedural due process claims. If PDP claims, generally speaking, will reliably produce remedies in cases like this, then we ought not to care whether the officers' actions are characterized as 4A or PDP claims. If PDP claims are unreliable (which I suggest in one of the comments above) then there is a potentially large gap in compensation for egregious misconduct such that in this case. I'm on the record, in these comments and elsewhere, as not being an adherent to ubi jus ibi remedium. But in this case, I think a remedy ought to issue--even if it requires the court to declare that a single Fourth Amendment violation can give rise to two different claims.

Posted by: Jack Preis | Sep 3, 2016 9:43:49 AM


Granting the somewhat questionable assumption that there has to be a damages remedy for every unwarranted prosecution (is that really the theory of the Constitution, and if so, why is there immunity for perjurious witnesses and prosecutors who suborn perjury?), isn't the simpler answer to permit the recovery of all damages proximately caused by a wrongful arrest on the wrongful arrest claim, including damages associated with a criminal prosecution, as long as the wrongful arrest claim is timely brought? Isn't that preferable to inventing a separate Fourth Amendment malicious-prosecution claim accruing after the prosecution terminates, even though there is no separate search or seizure caused by the prosecution to serve as a predicate for that separate Fourth Amendment claim?

One of the arguments that we make in our brief is that permitting Fourth Amendment claims to be brought many years after the underlying search and seizure creates a real problem. Plaintiffs can credibly claim that they still remember their arrests vividly, but because arrests are often frequent events for police, the officer and other witnesses (who may have moved, retired, or died in the interim), likely have no independent recollection of the events. This is the reason why accrual rules that delay claims for many years should be disfavored, no?


Posted by: Larry Rosenthal | Sep 3, 2016 11:34:48 AM


    What is with allowing two executive branch actors (cops and prosecutors)  to blame each other for what was in both cases executive branch conduct (or three actors, if one considers the lab tech to be part of or an agent of the executive branch)?

I understand Joliet's benefit from conflating the apparently maliscious, if not criminal, executive branch overreach in the Manuel case.  Since before the Magna Carta, government, generally (and the executive, specifically) usually wants to avoid having its actions constrained in the first place or second guessed in the second place.

But it is just this sort of overly-drawn-distinction analysis that over time allows, arguably, the erosion of civil liberties not by formal amendment, but by interpretation.  Legislatures often resort to questionable or even ridiculous interpretative tricks to achieve popular, but legally unprincipled results, but the judiciary should not.  it's interpretation should avoid drawing distinctions without a substantive shred of legal difference--like drawing a line between cops and prosecutors when considering whether government has violated a civil right.  Such distinctions require that we ask: in such situations, where are the checks and balances and separation of powers? 

And if there is no remedy at law--either via "PDP," "SDP" or "4th A" reasons (governed by a SoL and Tort Claims Act) especially in a law court, does a "right" (procedural or substantive) actually exist that truly means something?

One need only look to the Military Commissions at Guantanamo to see what happens (and what it means) when rights (human or civil) lack a legally enforceable remedy sufficient to discourage the violation in the first place--zip, nada, nothing, zilch. 

It means there is no right.  And without a substantive, meaningful remedy at law, any member of the executive branch (acting alone or in concert with Congress) is operating largley unconstrained--and it is made all the worse when that same executive and legislative team up to try to deny the judiciary any role in the process--as we saw with Guantanamo and habeas corpus.  Fortunately, the SCOTUS saw through that.  Sadly, the politically-ate-up DC Circuit full of aspiring SCOTUS judges has done it's level best to undermine Boumediene, which the SCOTUS has thus far failed to reign-in (again).

If Joliet's argument prevails--especially given the absurdly maliscious (if not outright criminal) executive branch conduct in the Manuel case, I worry considerably about the practical legal consequences in the years to come.

Posted by: Rob Kincaid | Sep 4, 2016 3:27:04 PM

Larry, I'm a bit late in responding, but thanks again for your thoughts. As I hear your argument, the Court has essentially options: (1) hold that the plaintiff may only collect damages that are "proximately caused by a wrongful arrest on the wrongful arrest claim" or (2) "inventing a separate Fourth Amendment malicious-prosecution claim accruing after the prosecution terminates." You believe that option (1) is preferable to option (2). Please correct me if I'm inferring too much from your statement, but your use of the word "inventing" suggests that option (2) might be less desirable because it would require the Court to step outside the proper judicial role. I am not an adherent to free-range constitutional interpretation, but I suspect I might tolerate a bit more wiggle room in the cases and history than you do on this issue. If the Court were to choose option (2), I think the holding could be justified by stating that it is quite common for a single wrongful act to give rise to two different causes of action, each with a different statute of limitations. For example, in Virginia, a car accident often gives rise to personal injury claims (2 year SOL) and a property damage claims (5 year SOL). In sum, in my view, the Court would not need to reach very far to find support for malicious prosecution claim arising out of a Fourth Amendment violation. But again, I recognize that my approach to the judicial craft might be different than yours.

As to your argument on how the delayed suits will tend to favor the plaintiff over the defendant based on witness memory etc, I think your argument makes sense. But that still doesn't settle the matter. At the end of the day, whether a cause of action or SOL rule unduly favors a plaintiff is a policy question. Where egregious misconduct is involved--such as sexual abuse of a child--state legislatures frequently choose COA and SOL rules that favor plaintiffs. I agree with that approach as a policy matter. I haven't thought much about how to deal with suits that only allege negligent or reckless conduct, but where intentional misconduct is alleged, I think it's ok to extend the SOL (or modify the COA) to provide the plaintiff with a possibility of relief.

Posted by: Jack Preis | Sep 4, 2016 7:59:40 PM

Rob Kincaid: Thanks for your thoughts on this. There are many that adhere to your view, which I might rephrase as: "the government behaves horribly, but never has to pay." I sometimes feel the same thing myself. In this case, as I explained in my response to Larry Rosenthal, I think the government should pay and that there is a reasonable path for the Court to reach that result. I would respectfully disagree, however, with your assertion that if Manuel loses here, "there is no right." First, Manuel's right to be free from wrongful prosecution was enforced here, given that his case was dismissed soon after the fraud was discovered. Second, even if Manuel loses in this case, it will because the Court decides that he should have pursued his Due Process rights instead. For reasons I've previously stated, I think the Due Process option is unwise in this case and I hope the Court does not take that approach. If the Court does so, I think there is reason to criticize the Court, but those criticisms ought not to state that a right has disappeared; they should be state that the right invoked is insufficient to enforce the interest at state. A subtle distinction, perhaps, but one that I think is important to make. Thanks again for your comments.

Posted by: Jack Preis | Sep 4, 2016 8:18:20 PM


I suppose I should explain what I mean by "inventing a separate Fourth Amendment malicious-prosecution claim." The point is simple -- there is no malicious prosecution clause lurking in the Fourth Amendment. The Fourth Amendment forbids unreasonable searches and seizures, not unwarranted or malicious prosecutions. Manuel was searched and seized only once by the arresting officers -- outside the limitations period. Even if his ensuing prosecution was a continuing adverse consequence of an antecedent Fourth Amendment violation for which he can recover damages, that does not delay accrual, or the statute of limitations would never begin to run for plaintiffs whose damages continue to mount.

Your example of lawsuits seeking damages arising from a car accident is an interesting one. The judgment the legislature presumably made is that evidence relating to property damage is less likely to be rooted in potentially fading memories, and hence warrants a longer limitations period. The Supreme Court, however, has rejected the view that these kinds of distinctions should be imported into section 1983 jurisprudence, holding that all section 1983 lawsuits should be governed by the statute of limitations for personal injuries -- and the problem of fading memories is probably, if anything, made more acute when a plaintiff alleges intentional misconduct. But, even creating separate limitations periods for actions to recover for injuries to person or property is not thought to give to separate claims -- if a plaintiff, for example, sues to recover for a personal injury arising from a car accident and goes to judgment, that judgment will bar a suit for property damages, because the plaintiff has improperly split a single claim. In this case, even though the only misconduct that Manuel alleged relates to his arrest (also the only time that he was searched and seized in violation of the Fourth Amendment), he is trying to turn that into two separate claims. That strikes me as pretty inventive.

To be sure, some types of lawsuit involving intentional misconduct, such as for sexual abuse of minors, warrant a longer statute of limitations because it may be so difficult for the plaintiff to bring the allegation. There is no policy along those lines at work here that I can see except, perhaps, that many seem to think that more police liability is a generally a good thing. Even that kind of judgment gets complicated, however, given that political reality usually dictates that the financial burden of police liability is passed along to the public rather than coming out of the police budget. This compromises the government's ability to finance public services, harming innocent third parties. Even the policy arguments here get more complicated when they are examined more closely.


Posted by: Larry Rosenthal | Sep 5, 2016 1:26:38 PM

Larry, you are correct (obviously) that there is no malicious prosecution clause in the Fourth Amendment. But nor is there a clause there that dictates the accrual date for statutes of limitations. One thing that I think the Court could do here that would easily solve the problem is to hold that, as a matter of federal law, the statute of limitations in cases involving fraud of the sort alleged here begin to accrue when the fraud is discovered, not when the fraud occurs. That is the law in most states (indeed, many states employ the discovery rule of all common law claims).

This might seem to contradict Wallace v. Kato, but Wallace did not involve fraud. Here is a key excerpt: “Under the traditional rule of accrual … the tort cause of action accrues, and the statute of limitations commences to run, when the wrongful act or omission results in damages. The cause of action accrues even though the full extent of the injury is not then known or predictable. Were it otherwise, 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 sole hands of the party seeking relief." (citations omitted). The accrual date cited by the court makes sense given that the case did not involve fraud, but where fraud is involved, delaying accrual until discovery of the fraud makes a lot of sense--so much sense that it is the norm among SOL rules in states.

I haven't really explored the issues here well enough to say what the best way to write opinion might be. But I do think the Court could find in favor of Manuel here without stepping outside the traditional judicial role in these cases. It is hardly a stretch for the Court to craft statute of limitation dates with equity principles in mind.

Finally, I think you are correct that my example of extended SOLs for sexually abused minors is not compelling given the facts presented in Manuel. But let me give you a better example. In Virginia (as well as in other states), where a doctor fails to diagnose a tumor, the accrual date for a claim against the doctor is the date when the tumor was actually discovered, not the date when discovery should have occurred. (These same rules also apply for lots of other claims that follow this patter, such as asbestosis, faulty breast implants, etc.) A special rule in such cases makes sense because the plaintiff has no way to know of the breach of care until far after the breach has occurred. The same principle applies here. And, I should note that the accrual rules for these types of claim will apply in cases against government operated hospitals--thus resulting in the financial burden of the delayed accrual date to be spread over society at large, just as with police departments.

Posted by: Jack Preis | Sep 5, 2016 3:43:06 PM


Interestingly, if this case turns on the date on which Manuel learned of the "fraud" or other violation of his rights, Manuel loses. Manuel's (barely credible) allegation is that he saw the officers perform the field test, knew that it was negative, and knew that they misrepresented the result of the test on the day of his arrest. If that is so, then the "fraud" (what kind of "fraud" is it, I wonder, that the officers know will be uncovered by the lab test in a matter of days?) was discovered by Manuel (according to his own allegations) on the day that he was arrested. I don't know of any version of the "discovery" rule of accrual that would delay accrual in this case -- and Manuel (wisely) makes no argument along those lines.


Posted by: Lawrence Rosenthal | Sep 5, 2016 4:14:33 PM

That's an important point, and one of which I was not aware. Aside from whether the rule would help Manuel or not, I still think a discovery rule is defensible on the whole. Thanks, Jack.

Posted by: Jack Preis | Sep 5, 2016 4:17:52 PM

Since I am not a lawyer I am surprised there isn't a 5th amendment claim regarding being deprived of liberty without due process. Fraud is the opposite of due process. If the courts hold that following procedure based on fraud is within the scope of the constitution then we should all get ready for prison stays.

Posted by: Horace | Sep 6, 2016 12:11:22 PM

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