In the Supreme Court of the United States

Transcription

1 No. In the Supreme Court of the United States GILBERT LLOVET, Petitioner v. CITY OF CHICAGO, WILLIAM M. HENEGHAN AND ROBERT LOTTMAN ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT PETITION FOR WRIT OF CERTIORARI JOEL A. FLAXMAN KENNETH N. FLAXMAN Counsel of Record 200 S Michigan Avenue Suite 201 Chicago, IL knf@kenlaw.com (312) Attorneys for Petitioner

2 QUESTION PRESENTED In Wallace v. Kato, 549 U.S. 384 (2007), the Court stated that it has never explored the contours of a Fourth Amendment malicious-prosecution suit under Id. at 390 n.2. The Courts of Appeals for the First, Second, Third, Fourth, Sixth, Ninth, Tenth, Eleventh and District of Columbia circuits recognize such a cause of action; the Fifth and Seventh Circuits do not. This case presents the Court with an opportunity to resolve this conflict and answer the question: Does the Fourth Amendment provide a source for malicious prosecution claims under 42 U.S.C. 1983? (I)

3 II TABLE OF CONTENTS Page Opinions below... 1 Jurisdiction... 1 Constitutional Provision and Statutes Involved... 2 Statement... 3 Reasons for Granting the Petition... 6 Conclusion Appendix A Court of appeals opinion... 1a (August 1, 2014) Appendix B District Court order granting motion to dismiss (October 2, 2013)... 10a Appendix C Court of appeals on order denying rehearing and suggestion for rehearing en banc (September 5, 2014)... 11a

4 III Cases: TABLE OF AUTHORITIES Page Albright v. Oliver, 510 U.S. 266 (1994)... 7 Aldini v. Johnson, 609 F.3d 858 (6th Cir. 2010)... 8 Bell v. Wolfish, 441 U.S. 520 (1979)... 9 Castellano v. Fragozo, 352 F.3d 939 (5th Cir. 2003) (en banc)... 8 Estate of Smith v. Marasco, 318 F.3d 497, (3d Cir. 2003), opinion following remand, 430 F.3d 140 (3d Cir. 2005)... 7 Evans v. Chalmers, 703 F.3d 636 (4th Cir. 2012)... 7 Florence v. Board of Chosen Freeholders of County of Burlington, 132 S.Ct (2012)... 9 Grider v. City of Auburn, Ala., 618 F.3d 1240 (11th Cir. 2010)... 8 Harrington v. City of Council Bluffs, Iowa, 678 F.3d 676 (8th Cir. 2012)... 6 Hernandez-Cuevas v. Taylor, 723 F.3d 91 (1st Cir. 2013)... 4, 6 Hernandez v. Sheahan, 455 F.3d 772 (7th Cir. 2006)... 5, 10 Julian v. Hanna, 732 F.3d 842 (7th Cir. 2013)... 5 Lassiter v. City of Bremerton, 556 F.3d 1049 (9th Cir. 2009)... 7 Manganiello v. City of New York, 612 F.3d 149 (2d Cir. 2010)... 7

5 IV Monroe v. Pape, 365 U.S. 167 (1961)... 9 Newsome v. McCabe, 256 F.3d 747 (7th Cir. 2000) Novitsky v. City of Aurora, 491 F.3d 1244 (10th Cir. 2007) Pitt v. District of Columbia, 491 F.3d 494 (D.C. Cir. 2007)... 8 Soldal v. Cook County, 942 F.2d 1073 (7th Cir. 1991), reversed 506 U.S. 56 (1992) Swartz v. Insogna, 704 F.3d 105 (2d Cir. 2013) Sykes v. Anderson, 625 F.3d 294 (6th Cir Taylor v. Waters, 81 F.3d 429 (4th Cir. 1996)... 8 Wallace v. Kato, 549 U.S. 384 (2007)... 4, 6, 7 Winston v. Lee, 470 U.S. 753 (1985)... 9 Wood v. Kesler, 323 F.3d 872 (11th Cir. 2003)... 8 Statutes: 42 U.S.C passim 720 ILCS 5/

6 In the Supreme Court of the United States GILBERT LLOVET, PETITIONER v. CITY OF CHICAGO, WILLIAM M. HENEGHAN AND ROBERT LOTTMAN ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT PETITION FOR WRIT OF CERTIORARI Petitioner Gilbert Lovett respectfully petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Seventh Circuit in this case. OPINIONS BELOW The opinion of the court of appeals (App., infra, 1a- 10a) is reported at 761 F.3d 759 (7th Cir. 2013). The order of the district court (App., infra, 11a), is unreported. JURISDICTION The judgment of the court of appeals was entered on August 1, A petition for rehearing and a suggestion for rehearing en banc was denied on September 5, (App., infra, 11a.) The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). (1)

7 2 CONSTITUTIONAL PROVISION AND STATUTE INVOLVED The Fourth Amendment to the United States Constitution provides: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. 42 U.S.C provides: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

8 3 STATEMENT Petitioner Gilbert Llovet was arrested by Chicago police officers on a misdemeanor charge on January 26, A judge set bond at $15,000; petitioner was unable to post cash bond and remained in custody awaiting trial. As a person charged with a misdemeanor, petitioner was facing a maximum term of imprisonment of 364 days. 720 ILCS 5/2-11. Respondents Chicago Police Detectives William M. Heneghan and Robert L. Lottman, after learning that petitioner was in custody on a misdemeanor charge, prepared a police report memorializing the false claim that the victim of a felony aggravated battery had identified petitioner as the person who had attacked her. Petitioner alleged that in preparing the report, the detectives were motivated by malice because plaintiff had complained about them to the Chicago Police Department. (Complaint, par. 6.) The false police report resulted in petitioner being be prosecuted on a felony charge. A judge set bail on the felony charge at one million dollars, relying on the detectives claims that the alleged victim had identified petitioner as the person who had harmed her. Petitioner remained in custody for more than one year, until he was acquitted of the felony on July 9, The prosecution dismissed the misdemeanor battery charges the next day and petitioner was released from custody on July 10, On July 9, 2013, petitioner filed an action in the district court seeking damages arising from the unsuccessful prosecution. Petitioner asserted that because of the

9 4 felony charge, he had been held in custody beyond the maximum possible sentence on the misdemeanor charge. Petitioner argued that the felony charge caused him to have been subjected to an unreasonable seizure prohibited by the Fourth Amendment and sought damages under 42 U.S.C Petitioner also brought a supplemental claim under Illinois law for malicious prosecution. Petitioner acknowledged in his complaint that his Section 1983 action was barred by circuit precedent. The district court dismissed the federal claim as required by Seventh Circuit caselaw and declined to exercise jurisdiction over the supplemental state law claim. 1 On appeal, petitioner asked the Seventh Circuit to reexamine its precedent in light of this Court s statement in Wallace v. Kato, 549 U.S. 384, 390 n.2 (2007), as well as the broad consensus among the circuits that the Fourth Amendment right to be free from seizure but upon probable cause extends through the pretrial period. Hernandez-Cuevas v. Taylor, 723 F.3d 91, 102 (1st Cir. 2013). The Seventh Circuit acknowledged that petitioner was seeking to reverse circuit precedent (App., infra, 2a): The plaintiff asks us to overrule Newsome [v. McCabe, 256 F.3d 747 (7th Cir. 2000)], which he contends both is unsound and has been rejected by most of the other federal courts of appeals; 1 Petitioner refiled his malicious prosecution claim in state court on October 2, Llovet v. City of Chicago, No L (Cir. Ct. Cook Co).

10 5 he tells us that this case provides [this] Court with an opportunity to stop being an outlier circuit. He wants us to hold, in direct opposition to the Newsome line of cases, that 42 U.S.C authorizes a federal claim of malicious prosecution regardless of what alternative remedy a state provides. He also wants us to hold that the Fourth Amendment s prohibition of seizures of persons without probable cause does not terminate when the person arrested becomes detained pursuant to legal process (normally an arraignment in which a judicial officer determines that there is probable cause to hold him for trial unless he makes bail); and further that a claim, based on the Fourth Amendment, for malicious prosecution accrues upon the favorable termination of criminal proceedings and thus does not have to be filed within the statute of limitations for the unlawful arrest. The Seventh Circuit repeated that most federal courts of appeals [hold] that section 1983 authorizes a federal claim of malicious prosecution regardless of what alternative remedy a state provides, at least if the plaintiff had been seized in the course of the malicious prosecution, which the cases believe justifies grounding the malicious prosecution claim in the Fourth Amendment App., infra, 3a, quoting Julian v. Hanna, 732 F.3d 842, 846 (7th Cir. 2013). The court of appeals, however, adhered to its prior holding in Hernandez v. Sheahan, 455 F.3d 772, 777 (7th Cir. 2006), that the fourth amendment drops out of the picture following a person s initial appearance in court. Id. at 777. (App., infra, 7a.)

11 6 REASONS FOR GRANTING THE PETITION The Court has never explored the contours of a Fourth Amendment malicious-prosecution suit under Wallace v. Kato, 549 U.S. 384, 390 n.2 (2007). The Courts of Appeals for the First, Second, Third, Fourth, Sixth, Ninth, Tenth, Eleventh, and District of Columbia Circuits recognize a malicious prosecution suit under The Fifth and Seventh Circuits do not. 2 This conflict has fully percolated through the courts of appeals and should be resolved. The First Circuit, in Hernandez-Cuevas v. Taylor, 723 F.3d 91 (1st Cir. 2013), joined the broad consensus among the circuits that the Fourth Amendment right to be free from seizure but upon probable cause extends through the pretrial period. Id. at 102. The First Circuit, squarely rejecting the view of the Seventh and Fifth Circuits, held in Hernandez-Cuevas that an individual does not lose his Fourth Amendment right to be free from unreasonable seizure when he becomes detained pursuant to judicial process. Id. at 99. Thus, in the First Circuit, law enforcement officers who are responsible for continued, unreasonable pretrial detention are subject to suit under 42 U.S.C for the wrongful prosecution. Id. The Second Circuit likewise recognizes a Fourth Amendment claim that accrues upon the favorqable termination of criminal proceedings. Swartz v. Insogna, 2 The Eighth Circuit will likely never resolve this question, applying qualified immunity because of unsettled law on Fourth Amendment malicious prosecution claims. Harrington v. City of Council Bluffs, Iowa, 678 F.3d 676, (8th Cir. 2012).

12 7 704 F.3d 105 (2d Cir. 2013); Manganiello v. City of New York, 612 F.3d 149 (2d Cir. 2010). The Third Circuit is in accord. Estate of Smith v. Marasco, 318 F.3d 497, 521 (3d Cir. 2003), opinion following remand, 430 F.3d 140 (3d Cir. 2005). The Fourth Circuit recently reaffirmed that the Fourth Amendment provides an explicit textual source for 1983 malicious prosecution claims. Evans v. Chalmers, 703 F.3d 636, 647 n.3 (4th Cir. 2012) (quoting Albright v. Oliver, 510 U.S. 266, 273 (1994) (plurality opinion)). The Sixth Circuit summarized its prior holdings in Sykes v. Anderson, 625 F.3d 294 (6th Cir. 2010): The Sixth Circuit recognize[s] a separate constitutionally cognizable claim of malicious prosecution under the Fourth Amendment, which encompasses wrongful investigation, prosecution, conviction, and incarceration. Barnes v. Wright, 449 F.3d 709, (6th Cir. 2006) (internal quotation marks omitted). The tort of malicious prosecution is entirely distinct from that of false arrest, as the maliciousprosecution tort remedies detention accompanied not by absence of legal process, but by wrongful institution of legal process. Wallace v. Kato, 549 U.S. 384, 390 (2007) (internal quotation marks omitted). Id. at 308. The Ninth and Tenth Circuits also recognize a claim for malicious prosecution under Section Lassiter v. City of Bremerton, 556 F.3d 1049, 1054 (9th Cir. 2009); Novitsky v. City of Aurora, 491 F.3d 1244, 1258

13 8 (10th Cir. 2007). The Eleventh Circuit has identified malicious prosecution as a violation of the Fourth Amendment and a viable constitutional tort cognizable under Grider v. City of Auburn, Ala., 618 F.3d 1240, 1256 (11th Cir. 2010), quoting Wood v. Kesler, 323 F.3d 872, 881 (11th Cir. 2003). The District of Columbia Circuit in Pitt v. District of Columbia, 491 F.3d 494 (D.C. Cir. 2007) join[ed] the large majority of circuits in holding that malicious prosecution is actionable under 42 U.S.C to the extent that the defendant's actions cause the plaintiff to be unreasonably seized without probable cause, in violation of the Fourth Amendment. Id. at 511. The Fifth and Seventh Circuits follow a different rule. In Castellano v. Fragozo, 352 F.3d 939 (5th Cir. 2003) (en banc), a majority of the Fifth Circuit concluded that the umbrella of the Fourth Amendment, broad and powerful as it is, casts its protection solely over the pretrial events of a prosecution. Id. at 959. Similarly, the Seventh Circuit takes the position that the Fourth Amendment drops out of the picture once an arrestee is held in custody pursuant to legal process. (App., infra, 7a.) The court of appeals held that [w]hen, after the arrest or seizure, a person is not let go when he should be, the Fourth Amendment gives way to the due process clause as a basis for challenging his detention. (App., infra, 9a.) The court of appeals explained its position by relying on post-arraignment excessiveforce cases. 3 The court below disregarded decisions from this Court applying the Fourth Amendment to 3 Aldini v. Johnson, 609 F.3d 858, (6th Cir. 2010); Taylor v. Waters, 81 F.3d 429, (4th Cir. 1996) (App., infra 7a.)

14 9 post-arraignment searches. Bell v. Wolfish, 441 U.S. 520, 558 (1979), Winston v. Lee, 470 U.S. 753, 764 (1985), and Florence v. Board of Chosen Freeholders of County of Burlington, 132 S.Ct. 1510, 1524 (2012) (Alito, J., concurring). As further support for its drop out rule, the Seventh Circuit relied on the adequate state remedy theory this Court rejected in Monroe v. Pape, 365 U.S. 167 (1961), when it held that that [i]t is no answer that the State has a law which if enforced would give relief. The federal remedy is supplementary to the state remedy, and the latter need not be first sought and refused before the federal one is invoked. Id. at 183. The narrow view of the scope of the Fourth Amendment underlying the decision of the court of appeals resembles that rejected by this Court when it reversed the Seventh Circuit in Soldal v. Cook County, 506 U.S. 56 (1992). In Soldal, the en banc Seventh Circuit held that the Fourth Amendment did not apply to a literal seizure of a mobile home because no privacy interest was invaded. Soldal v. Cook County, 942 F.2d 1073, 1078 (7th Cir. 1991). This Court reversed, in a unanimous opinion, holding that the text of the Fourth Amendment means what it says: We fail to see how being unceremoniously dispossessed of one's home in the manner alleged to have occurred here can be viewed as anything but a seizure invoking the protection of the Fourth Amendment. Soldal, 506 U.S. at 61.

15 10 This Court should grant certiorari to resolve the conflict between the circuits, reject the novel holding below, Soldal, 506 U.S. at 62, and hold that an individual does not lose his Fourth Amendment right to be free from unreasonable seizure when he becomes detained pursuant to judicial process. Hernandez- Cuevas v. Taylor, 723 F.3d 91, 99 (1st Cir. 2013). CONCLUSION It is therefore respectfully submitted that the petition for writ of certiorari should be granted. December, 2014 Joel A. Flaxman Kenneth N. Flaxman (counsel of record) 200 S Michigan Avenue Suite 201 Chicago, IL knf@kenlaw.com (312) Attorneys for Petitioner

16 1a APPENDIX A UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT No GILBERT LLOVET, Plaintiff-Appellant v. CITY OF CHICAGO, et al., Defendants-Appellees Filed: August 1, 2014 Before POSNER, KANNE, and WILLIAMS, Circuit Judges. POSNER, Circuit Judge. After being acquitted in a state court of aggravated battery, the plaintiff sued two Chicago police officers and their employer, the City of Chicago, under 42 U.S.C for malicious prosecution. He claimed that the officers had prepared false police reports and used them to persuade a state prosecutor to file a charge of aggravated battery against him. The district court dismissed the plaintiff s suit on the authority of our decision in Newsome v. McCabe, 256 F.3d 747, (7th Cir. 2001), which holds (as do subsequent cases of ours such as Avila v. Pappas, 591 F.3d 552, (7th Cir. 2010), and Gauger v. Hendle, 349 F.3d 354, 359 (7th Cir. 2003)) that a federal suit for malicious prosecution by state officers is permissible only if the state in which the plaintiff had been prosecuted does not provide an adequate remedy, which (the plaintiff does not deny) Illinois does. See Swick v. Liautaud, 662 N.E.2d 1238, 1242 (Ill. 1996). The plaintiff asks us to overrule Newsome, which he contends both is unsound and has been rejected by most

17 2a of the other federal courts of appeals; he tells us that this case provides [this] Court with an opportunity to stop being an outlier circuit. He wants us to hold, in direct opposition to the Newsome line of cases, that 42 U.S.C authorizes a federal claim of malicious prosecution regardless of what alternative remedy a state provides. He also wants us to hold that the Fourth Amendment s prohibition of seizures of persons without probable cause does not terminate when the person arrested becomes detained pursuant to legal process (normally an arraignment in which a judicial officer determines that there is probable cause to hold him for trial unless he makes bail); and further that a claim, based on the Fourth Amendment, for malicious prosecution accrues upon the favorable termination of criminal proceedings and thus does not have to be filed within the statute of limitations for the unlawful arrest. Newsome derives ultimately from the Supreme Court s decision in Parratt v. Taylor, 451 U.S. 527 (1981), which held that a claim based on the due process clause of the Fourteenth Amendment is not actionable if the alleged violation was the unauthorized act of a rogue state officer rather than an application of state law or policy, as long as the state provides an adequate remedy for the wrongful act of its employee. The Court reasoned that the availability of such a state remedy is all the process that the victim of such an act is due. Albright v. Oliver, 510 U.S. 266 (1994), applied this principle to due process suits for malicious prosecution: they can be brought under federal law only if there is no adequate state law remedy. Our plaintiff does not question the derivation of Newsome from Parratt and Albright but argues rather that a federal suit for malicious prosecution can be based on the Fourth Amendment rather than on the

18 3a due process clause, and that all that the plaintiff has to prove in order to establish a violation of the Fourth Amendment is that he was wrongfully in detention at some point. He argues that other courts of appeals accept this position, citing a passage in our opinion in Julian v. Hanna, 732 F.3d 842, 846 (7th Cir. 2013), in which we said that most federal courts of appeals [hold] that section 1983 authorizes a federal claim of malicious prosecution regardless of what alternative remedy a state provides, at least if the plaintiff had been seized in the course of the malicious prosecution, which the cases believe justifies grounding the malicious prosecution claim in the Fourth Amendment, thus avoiding the Parratt principle. Pitt v. District of Columbia, 491 F.3d 494, (D.C. Cir. 2007); Hernandez Cuevas v. Taylor, 723 F.3d 91, (1st Cir. 2013); Swartz v. Insogna, 704 F.3d 105, (2d Cir. 2013); Gallo v. City of Philadelphia, 161 F.3d 217, (3d Cir. 1998); Evans v. Chalmers, 703 F.3d 636, 647 (4th Cir. 2012); Fox v. DeSoto, 489 F.3d 227, 237 (6th Cir. 2007); Novitsky v. City of Aurora, 491 F.3d 1244, (10th Cir. 2007); Kingsland v. City of Miami, 382 F.3d 1220, 1234 (11th Cir. 2004). The at least clause ( at least if the plaintiff had been seized ), overlooked by the plaintiff in the present case, is critical. The cited cases hold or assume or imply that if malicious acts by state officers result in a seizure that is unreasonable within the meaning of the Fourth Amendment, the victim can seek relief under 42 U.S.C though it is important to bear in mind, as we had occasion to reiterate in Scherr v. City of Chicago, 2014 WL (7th Cir. July 2, 2014), that if there is probable cause for a search (or seizure) there is no violation of the Fourth Amendment even if the police acted for improper, malicious reasons.

19 4a The court in Newsome did not deny that there may be cases in which malicious prosecution resulting in an arrest can be challenged under the Fourth Amendment. Newsome left open the possibility of a Fourth Amendment claim against officers who misrepresent evidence to prosecutors Circuit precedent [therefore] did not necessarily prevent Johnson from bringing a Fourth Amendment claim based on Savile s allegedly false report to the State s Attorney and grand jury testimony. Johnson v. Savile, 575 F.3d 656, (7th Cir. 2009); to the same effect, see, e.g., Parish v. City of Chicago, 594 F.3d 551, 554 (7th Cir. 2009); McCullah v. Gadert, 344 F.3d 655, 659 (7th Cir. 2003). McCullah recognized a Fourth Amendment wrongful arrest claim against an officer alleged to have given false information in an incident report and at a preliminary hearing. We pointed out that Newsome did have a potential Fourth Amendment claim, but that it could not be pursued because the statute of limitations had run. Id. Newsome held that the plaintiff could not bring a federal malicious prosecution claim based on the due process clause of the Fourteenth Amendment, because his malicious prosecution remedy under state law was adequate to give him all the due process to which he was entitled. The plaintiff s brief in the present case acknowledges that this is the holding of Newsome. The question in this case, which is unrelated to Newsome, is whether the plaintiff was seized within the meaning of the Fourth Amendment. If not, his case collapses, regardless of Newsome. When charged with aggravated battery, the plaintiff was already in jail, awaiting trial on a charge of misdemeanor domestic battery against the same person on a different occasion. 720 ILCS 5/12 3.2(b). He doesn t deny that there had been probable cause for his arrest on the misdemeanor charge. Unable to make bail, he was

20 5a still in jail, awaiting trial on both charges, when he was tried for and acquitted of aggravated battery, whereupon he was released from jail and the misdemeanor charge was dropped. Thus there was no causal relation between the aggravated battery charge that was the result, he alleges (correctly, as we ll assume in this opinion), of malicious acts by the defendant officers, and the deprivation of his liberty by his being arrested and jailed on the misdemeanor charge, a charge that forms no part of his claim of unlawful behavior by the defendants. But he contends that the filing of the aggravated battery charge suspended his statutory right to a speedy trial on the misdemeanor charge, and as a result he was in jail longer than he would have been had it not been for the defendants malicious action in framing him for aggravated battery. Maybe so; but because the initial seizure was supported by probable cause and so did not violate the Fourth Amendment, the fact that the deprivation of liberty lasted longer than it should have, though this might well constitute a deprivation of liberty without due process of law, Heck v. Humphrey, 512 U.S. 477, 484 (1994), would not violate the Fourth Amendment. Hernandez v. Sheahan, 455 F.3d 772, 777 (7th Cir. 2006). The amendment does not regulate the length of detentions after a judge or magistrate has determined that there is probable cause to detain a person on a criminal charge. Or so we believe; not all courts agree. Three of the string of eight cases cited in the passage we quoted from our opinion in Julian v. Hanna treat malicious protraction of detention as a continuing seizure, violative of the Fourth Amendment Hernandez Cuevas v. Taylor, 723 F.3d at ; Swartz v. Insogna, 704 F.3d at 112, and Gallo v. City of Philadelphia, 161 F.3d at

21 6a as do two Sixth Circuit cases, Sykes v. Anderson, 625 F.3d 294, (6th Cir. 2009); Gregory v. City of Louisville, 444 F.3d 725, (6th Cir. 2006), although in light of a subsequent Sixth Circuit case, Aldini, cited below, the continued validity of Sykes and Gregory are in some doubt. The courts in the cases cited in the preceding paragraph reason that even if a defendant is arrested on probable cause, unless released when he should be the unauthorized continuation of his detention violates the Fourth Amendment. This reasoning, critical to the plaintiff s case, is inconsistent with the Supreme Court s decision in Heck v. Humphrey, cited above, which states that unlike the related cause of action for false arrest or imprisonment, [a suit for malicious prosecution] permits damages for confinement imposed pursuant to legal process. 512 U.S. at 484 (emphasis added). The tort of false arrest is the common law counterpart to an unreasonable seizure, forbidden by the Fourth Amendment; Wallace v. Kato, 549 U.S. 384, 389 (2007), holds that the sort of unlawful detention remediable by the tort[s] of false imprisonment [and false arrest] is detention without legal process (emphasis in original). Heck and Wallace imply that once detention by reason of arrest turns into detention by reason of arraignment once police action gives way to legal process the Fourth Amendment falls out of the picture and the detainee s claim that the detention is improper becomes a claim of malicious prosecution violative of due process. If this is right, the doctrine of continuing seizure is wrong, as we held for example in Wiley v. City of Chicago, 361 F.3d 994, 998 (7th Cir. 2004), which states that our court has repeatedly rejected the continuing seizure approach, instead holding that the scope of a

22 7a Fourth Amendment claim is limited up until the point of arraignment. To the same effect is Hernandez v. Sheehan, supra, 455 F.3d at 777: the fourth amendment drops out of the picture following a person s initial appearance in court. Similar decisions in other circuits are Aldini v. Johnson, 609 F.3d 858, (6th Cir. 2010), and Taylor v. Waters, 81 F.3d 429, (4th Cir. 1996). Continued detention can mean just that the arrest was wrongful and resulted in the detention of which the plaintiff complains, rather than that a wrongful act committed after the plaintiff had been detained was a separate violation of the Fourth Amendment. The latter is what is alleged in this case; the plaintiff complains of a detention that, because of a new wrong, continued beyond its lawful limits. A number of decisions reject or at least fail to embrace the continuing seizure doctrine in the form pressed by the plaintiff in this case that an initially lawful detention becomes a Fourth Amendment violation if it lasts longer than it should. Those decisions include Evans v. Chalmers, supra, 703 F.3d at 647; Becker v. Kroll, 494 F.3d 904, (10th Cir. 2007) (and other cases cited in that case); Pitt v. District of Columbia, supra, 491 F.3d at , 511; Fox v. DeSoto, supra, 489 F.3d at 237; Gutierrez v. City of San Antonio, 139 F.3d 441, 452 (5th Cir. 1998); and Riley v. Dorton, 115 F.3d 1159, (4th Cir. 1997) (en banc); cf. Kingsland v. City of Miami, supra, 382 F.3d at Newsome is no outlier. Adoption of the continuing seizure doctrine in the form urged by the plaintiff would greatly enlarge the scope of the Fourth Amendment. And to no purpose, for there are abundant legal remedies including federal remedies for a state s refusing to release a person who

23 8a is being unlawfully detained. In Wolff v. McDonnell, 418 U.S. 539, 544, 557 (1974), for example, the Supreme Court held that to prolong detention by depriving a state prisoner of good time credits without proper procedure violates the due process clause of the Fourteenth Amendment. What it does not violate is the Fourth Amendment. We must consider, however, the plaintiff s alternative argument, a variant of the continuing seizure theory, that a second seizure (the first being his arrest on the misdemeanor battery charge) occurred when by filing the aggravated battery charge the police caused him to be kept in jail beyond the 12 month deadline for the misdemeanor charge. Bail on the aggravated battery charge was set at $1 million. Unable to make bail in that amount (which would have required him to post a $100,000 bond), the defendant remained in jail past the 12 month deadline for holding him on the lesser charge. The argument is that the second filing of criminal charges was in effect an arrest, for which probable cause was lacking, and thus an unreasonable seizure. The bracketing of searches and seizures in the Fourth Amendment, and the fact that more than half the amendment is taken up with specifying limits on warrants, suggest that the core meaning of seizures is arrests, or similar acts that impose an immediate physical restraint on a person. There is a difference between seizing a person and not letting him go. The basis of the plaintiff s prolonged detention was the filing of a new charge against him (aggravated battery) after he was already in jail; and withholding a get out of jail card is not an arrest, or any other sort of seizure. When, after the arrest or seizure, a person is not let go when he should be, the Fourth Amendment gives way to the due

24 9a process clause as a basis for challenging his detention. It s not unusual for new charges to be filed against prisoners that delay their release; it would be odd to think the Fourth Amendment an available basis for challenging the lawfulness of such delays. But that is the plaintiff s claim in this case. To allow such a claim would enlarge the scope of the Fourth Amendment significantly and complicate its application by giving arrest (or seizure ) a new, counterintuitive meaning and, to repeat our earlier question, to what end? An unlawfully protracted detention is actionable under state law not only as malicious prosecution but also as false imprisonment. If a state fails to provide adequate remedies for such detention, the detention can be challenged as a federal violation of due process, as we explained in Julian v. Hanna. But if there is an adequate state remedy, we can t see the purpose of stretching the Fourth Amendment to create a duplicative federal remedy. The plaintiff doesn t argue that he didn t have an adequate remedy under state law. Although we are affirming, we cannot forbear to mention with disapproval the verbosity yet stunted structure of the City of Chicago s brief. The brief, 43 pages long, cites 104 different cases far too many yet omits a statement of facts without conceding the accuracy of the plaintiff s fact statement. Considering the City s precarious financial condition, we would have expected greater economy and selectivity in citations and more facts. AFFIRMED.

25 10a APPENDIX B UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION No. 1:13 cv GILBERT LLOVET, Plaintiff v. CITY OF CHICAGO, et al., Defendants. NOTIFICATION OF DOCKET ENTRY This docket entry was made by the Clerk on Wednesday, October 2, 2013: MINUTE entry before Honorable Ruben Castillo: Status hearing held on 10/2/2013. Defendants' motion to dismiss [12] is granted. The Court declines to entertain jurisdiction over the state court claims. This case is hereby dismissed. If plaintiff wishes to proceed with his complaint he must do so in state court. Mailed notice(rao, )

26 11a APPENDIX C UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT September 5, 2014 Before Richard A. Posner, Circuit Judge Michael S. Kanne, Circuit Judge Ann Claire Williams, Circuit Judge No GILBERT LLOVET, Plaintiff-Appellant v. CITY OF CHICAGO, et al., Defendants-Appellees Before POSNER, KANNE, and WILLIAMS, Circuit Judges. On August 15, 2014, plaintiff-appellant filed a petition for rehearing and suggestion for rehearing en banc. All the judges on the original panel have voted to deny the petition and none of the judges in regular active service has requested a vote on the petition for rehearing en banc. The petition is therefore DENIED.