In the Supreme Court of the United States

Transcription

1 No In the Supreme Court of the United States ROBERT POMPONIO, v. Petitioner MICHELE OWEN BLACK, Respondent ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT PETITION FOR WRIT OF CERTIORARI BRUCE R. BEEMER. Attorney General Commonwealth of Pennsylvania JOHN G. KNORR, III Chief Deputy Attorney General Chief, Appellate Litigation Section CLAUDIA M. TESORO Senior Deputy Attorney General Counsel of Record Office of Attorney General 21 South 12th Street, 3rd Floor Philadelphia, Pa (215)

2 QUESTIONS PRESENTED 1. May a person who was criminally charged, but never confined or subjected to any non-standard pretrial restrictions, rely on the continuing seizure doctrine to state a Fourth Amendment malicious prosecution claim against investigating officers? 2. Has a criminal defendant suffered a deprivation of liberty to which procedural due process attaches if that defendant remained at liberty pending trial, was not subject to any non-standard pretrial restrictions, and was acquitted at trial? i

3 PARTIES TO THE PROCEEDING Petitioner Robert Pomponio, a Trooper with the Pennsylvania State Police, was an appellee in the Court of Appeals and, before that, a defendant in the district court. Additional appellees in the Court of Appeals, also defendants in the district court, were Montgomery County (Pennsylvania) detective John T. Fallon; Montgomery County itself; four Lower Merion Township law enforcement officers (detectives Gregory Henry and Bryan Garner, Chief Fire Officer Charles McGarvey, and Deputy Fire Marshal Frank Hand); and Lower Merion Township itself. Pursuant to S.Ct. Rule 12.6, these parties are considered respondents, but their legal interests are consonant with those of Petitioner. Respondent Michele Owen Black was the appellant in the Court of Appeals and the plaintiff in the district court. ii

4 TABLE OF CONTENTS Page QUESTIONS PRESENTED... i PARTIES TO THE PROCEEDING... ii TABLE OF AUTHORITIES... v OPINIONS BELOW...1 STATEMENT OF JURISDICTION...1 CONSTITUTIONAL PROVISIONS INVOLVED...1 STATEMENT OF THE CASE...2 REASONS FOR GRANTING THE WRIT I. The Circuits Are Split On Whether Law Enforcement Officers Involved In Bringing Criminal Charges Can Be Held Accountable Under The Fourth Amendment for Malicious Prosecution A. This petition should be held, pending a decision in Manuel v. City of Joliet B. The circuits are divided regarding the extent to which one may pursue a Fourth Amendment malicious prosecution claim against an investigating officer in general C. The circuits are further divided regarding the viability, in this context, of the continuing seizure theory iii

5 II. The Court Should Also Clarify Whether A Person Who Is Criminally Charged But Never Physically Confined Or Restricted, And Is Later Acquitted, Can Nevertheless Pursue A Fourteenth Amendment Due Process Claim III.Summary Reversal Is Warranted On The Basis Of Qualified Immunity, Given The Divergent Views In The Courts of Appeals On The Fourth And Fourteenth Amendment Issues Presented Here CONCLUSION APPENDIX Court of Appeals Opinion.... 1a Order amending Court of Appeals Opinion....26a District Court Opinion... 28a iv

6 CASES: TABLE OF AUTHORITIES Albright v. Oliver, 510 U.S. 266 (1994)... 9, 13, 14, 17, 20, 27 Alexander v. McKinney, 692 F.3d 553 (7 th Cir. 2012) Ashcroft v. al-kidd, 563 U.S. 731 (2011) Awabdy v. City of Adelanto, 368 F.3d 1062 (9 th Cir. 2004) Becker v. Kroll, 494 F.3d 904 (10 th Cir. 2007)... 18, 19 Bianchi v. McQueen, 818 F.3d 309 (7 th Cir. 2016) Britton v. Maloney, 196 F.3d 24 (1 st Cir. 1999) Brousseau v. Haugen, 543 U.S. 194 (2004) Carroll v. Carman, 135 S.Ct. 348 (2015) Castellano v. Fragozo, 352 F.3d 939 (5 th Cir. 2003)... 15, 16 City and Cty. of San Francisco v. Sheehan, 135 S.Ct (2015) Cole v. Carson, 802 F.3d 752 (5 th Cir. 2015)... 21, 23 Commonwealth v. Black, No. MJ CR Commonwealth v. Black, No. CP-46-CR Commonwealth v. Cohen, 392 A.2d 1327 (Pa. 1978)... 5 Commonwealth v. McBride, 595 A.2d 589 (Pa. 1991)... 6 v

7 CASES: TABLE OF AUTHORITIES CONT D. Commonwealth v. Sepulveda, 855 A.2d 783 (Pa. 2004)... 5 DiBella v. Borough of Beachwood, 407 F.3d 599 (3d Cir. 2005)... 8, 27 Evans v. Ball, 168 F.3d 856 (5 th Cir. 1999)... 18, 20 Evans v. Chalmers, 703 F.3d 636 (4 th Cir. 2012) Gallo v. City of Philadelphia, 161 F.3d 217 (3d Cir. 1998)... 8, 17, 18, 20, 27 Gerstein v. Pugh, 420 U.S. 103 (1975)... 12, 13, 16, 17, 24 Grider v. City of Auburn, 618 F.3d 1240 (11 th Cir. 2010) Halsey v. Pfeiffer, 750 F.3d 273 (3d Cir. 2014)... 8, 9, 21, 24 Harrington v. City of Council Bluffs, 678 F.3d 676 (8 th Cir. 2012) Harrington v. City of Nashua, 610 F.3d 24 (1 st Cir. 2010) Hartley v. Sanchez, No , 13 Hernandez-Cuevas v. Taylor, 723 F.3d 91 (1 st Cir. 2013)... 15, 16 Hunter v. Bryant, 502 U.S. 224 (1991) Hunter v. Cole, No (U.S. Nov. 28, 2016) Johnson v. City of Cincinnati, 310 F.3d 484 (6 th Cir. 2003) Johnson v. Knorr, 477 F.3d 75 (3d Cir. 2007)... 7 vi

8 CASES: TABLE OF AUTHORITIES CONT D. Joseph v. Allen, 712 F.3d 1222 (8 th Cir. 2013) Karam v. City of Burbank, 352 F.3d 1188 (9 th Cir. 2003) Kingsland v. City of Miami, 382 F.3d 1220 (11 th Cir. 2004)... 18, 19 Llovet v. City of Chicago, 761 F.3d 759 (7 th Cir. 2014) Manuel v. City of Joliet, No , 12, 13, 15, 16, 27 Massey v. Ojaniit, 759 F.3d 343 (4 th Cir. 2014) Michigan v. DeFillippo, 443 U.S. 31 (1979) Mooney v. Holohan, 294 U.S. 103 (1935) Mullenix v. Luna, 136 S.Ct. 305 (2015) Murphy v. Lynn, 118 F.3d 938 (2d Cir. 1997)... 18, 20 Napue v. People of the State of Ill., 360 U.S. 264 (1959) Nieves v. McSweeney, 241 F.3d 46 (1 st Cir. 2001) Novitsky v. City of Aurora, 491 F.3d 1244 (10 th Cir. 2007) Pitt v. District of Columbia, 491 F.3d 494 (D.C. Cir. 2007) Pyle v. State of Kansas, 317 U.S. 213 (1942) Reichele v. Howards, 132 S.Ct (2012) vii

9 CASES: TABLE OF AUTHORITIES CONT D. Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123 (2d Cir. 1997)... 21, 23 Riley v. Dorton, 115 F.3d 1159 (4 th Cir. 1997) Rohman v. New York City Transit Auth., 215 F.3d 208 (2d Cir. 2000) Saunders-El v. Rohde, 778 F.3d 556 (7 th Cir. 2015)... 21, 22, 23, 25 Schneyder v. Smith, 653 F.3d 313 (3d Cir. 2011)... 7, 8 Swartz v. Insogna, 704 F.3d 105 (2d Cir. 2013)... 15, 18 Sykes v. Anderson, 625 F.3d 294 (6 th Cir. 2010) Taylor v. Barkes, 135 S.Ct (2015) Tech. Ordnance, Inc. v. United States, 244 F.3d 641 (8 th Cir. 2001) Wallace v. Kato, 549 U.S. 384 (2007)... 13, 27 Weiland v. Palm Beach Ct. Sheriff s Office, 792 F.3d 1313 (11 th Cir. 2015)... 21, 23 Wiley v. City of Chicago, 361 F.3d 994 (7 th Cir. 2004) Wilkins v. DeReyes, 528 F.3d 790 (10 th Cir. 2008) Zahrey v. Coffey, 221 F.3d 342 (2d Cir. 2000)... 21, 23 viii

10 TABLE OF AUTHORITIES CONT D. UNITED STATES CONSTITUTION: U.S. CONST. amend. IV... passim U.S. CONST. amend. XIV, 1... passim STATUTES: 28 U.S.C. 1254(1) U.S.C , 7, 10, 11, 14, 15, 20 RULES: Pa.R.Crim.P. 524(C)(3)... 5 Pa.R.Crim.P. 526(A)(1)... 5 Pa.R.Crim.P. 527(A)... 5 Pa.R.Crim.P ix

11 OPINIONS BELOW The opinion of the Court of Appeals (App. 1a-25a) is reported at 835 F.3d 358. The memorandum decision of the district court, granting motions to dismiss (App. 28a-41a), is unreported. STATEMENT OF JURISDICTION The judgment of the Court of Appeals was entered on August 30, On October 28, 2016, Justice Alito granted Petitioner s application for a 30-day extension of time to file this petition, until December 28, The Court has jurisdiction pursuant to 28 U.S.C. 1254(1). CONSTITUTIONAL PROVISIONS INVOLVED The Fourth Amendment to the United States Constitution provides, in relevant part, that [t]he right of the people to be secure in their persons against unreasonable searches and seizures, shall not be violated[.] U.S. CONST. amend. IV. The Fourteenth Amendment to the United States Constitution provides, in relevant part, nor shall any State deprive any person of life, liberty, or property, without due process of law[.] U.S. CONST. amend. XIV, 1. 1

12 STATEMENT OF THE CASE Petitioner Robert Pomponio is a Trooper with the Pennsylvania State Police. With local law enforcement officers, he participated in an investigation that led to arson charges against Respondent Michele Owen Black, a California resident, following a fire at her mother s Pennsylvania home. Ms. Black who was never physically confined on the criminal charges was later acquitted, but she sued Trooper Pomponio, among others, under 42 U.S.C Emphasizing both the lack of constitutionally significant restrictions on Ms. Black s freedom of movement and her acquittal, the district court dismissed her case. The Third Circuit overturned that ruling. It held that the seriousness of the charges against Ms. Black and the burden of flying from her home to attend pretrial conferences gave rise to two separate 1983 causes of action against Trooper Pomponio and his fellow officers: a Fourth Amendment malicious prosecution claim and an evidence-related Fourteenth Amendment due process claim. Review is warranted because, in both respects as the Court of Appeals openly acknowledged its decision is in direct conflict with decisions rendered by other circuits, where Ms. Black would not have been permitted to pursue either of her constitutional theories, let alone both of them. A. Factual Background. In November 2012, Ms. Black s mother, Paula Owen, was in the process of selling her long-time home in Lower Merion Township, Montgomery County, Pennsylvania. App. 3a-4a. To assist her 2

13 mother, Ms. Black flew in from her own home, in California. See App. 4a, 6a. The wiring in Ms. Owen s house had to be updated before the buyers could occupy their new home. On November 21, a fire broke out in a third floor bedroom, resulting in a V pattern of damage, extending from an electrical outlet. An electrician working on the wiring at the time extinguished the fire and called local authorities. App. 4a. First to respond was the Gladwyne Fire Chief, who alerted dispatchers that there had been an electrical fire. Next, Lower Merion Deputy Fire Marshal Frank Hand and his supervisor, Chief Charles McGarvey, arrived. Id. Deputy Hand, who lacks special expertise in electrical fires, disassembled the outlet where the fire had started. He photographed but did not preserve the outlet, the supporting brackets, the electrical box, or the outlet cover. A wire to the outlet was cut 18 inches from the outlet itself. Mischaracterizing that situation, Deputy Hand opined that there was no power source for the outlet and theorized that the fire had been intentionally set. Id. See also 3d Cir. App. at A30-A33. To obtain additional input, Deputy Hand contacted the county District Attorney s office and the State Police. App. 4a. Montgomery County Detective John T. Fallon, a certified fire investigator, and Trooper Pomponio, a State Police alternate deputy fire marshal, each went to the fire location. App. 5a. Relying on information provided by one of the electricians, and without personally inspecting the panel box in the basement, Detective Fallon concluded that the damage in the outlet area was caused by an open flame, not by the outlet itself. App. 5a. Similarly, after being told about the cut wire, Trooper Pomponio 3

14 too concluded that the fire was caused by an open flame. He did not inspect the electrical panel in the basement either, though he normally would have, because he was advised that someone else had already done so. Id. After a box of matches was found on a windowsill in the room where the fire started, Deputy Hand, Detective Fallon, and Trooper Pomponio all inferred that the matches had been used to start the fire. App. 5a. The matches themselves were not subjected to any scientific analysis or testing, however. Id. Next, the three investigators, along with Lower Merion detectives Gregory Henry and Bryan Garner, interviewed the electricians. App. 5a. Ms. Black who was present in the house that afternoon was questioned afterwards. By her account, the officers immediately accused her of starting the fire. Id. At the end of her interview, Detective Fallon informed her that she could voluntarily surrender herself to them at a later date or, if not, she would be arrested on a warrant in California, jailed there, and extradited to Pennsylvania. App. 5a-6a. Ms. Black did go home to California (knowing that she would be expected to return to Pennsylvania later, if advised to do so). App. 6a. While she was there, Detective Fallon swore out an affidavit of probable cause and sought a warrant for her arrest for arson and related offenses. Id. Ms. Black contents that the affidavit contained several material falsehoods and omissions. Id. Nevertheless, the warrant was duly issued by a judicial officer on December 17, According to the state court criminal dockets for Commonwealth v. Black, No. MJ CR and No. CP-46-CR , the issuing authority was Magisterial District Judge Henry J. Schireson. The court 4

15 The next day, back in Pennsylvania as agreed, Ms. Black appeared voluntarily for a preliminary arraignment pursuant to Pa.R.Crim.P App. 6a. She was not formally arrested. See App. 35a. At the preliminary arraignment, Ms. Black was released on $50,000 unsecured bail. App. 6a. 3 Consistent with Pa.R.Crim.P. 526(A)(1), which applies [i]n every case in which a defendant is released on bail, Ms. Black was expected to appear at all times required until full and final disposition of the case[.] Id. See also App. 6a. 4 Applicable rules further provide that, if deemed necessary, nonmonetary conditions of release, such as reporting requirements and travel restrictions, may also be imposed in addition to the conditions of the bail bond required in every case[.] Pa.R.Crim.P. 527(A). Ms. Black, however, was not subject to any additional court-imposed conditions. dockets, which are public records subject to judicial notice, can be viewed online at 2 At a preliminary arraignment, the defendant is informed of the nature of the pending charges, of the right to counsel, and of the right to reasonable bail. See, e.g., Commonwealth v. Sepulveda, 855 A.2d 783, 792 (Pa. 2004). At that time, a preliminary hearing will also be scheduled. See Pa.R.Crim.P. 540(G). 3 Release on unsecured bail bond means [r]elease conditioned upon the defendant s written agreement to be liable for a fixed sum of money if he or she fails to appear as required or fails to comply with the conditions of the bail bond. No money or other form of security is deposited. Pa.R.Crim.P. 524(C)(3). 4 See also Commonwealth v. Cohen, 392 A.2d 1327, 1330 (Pa. 1978) ( Where a defendant undertakes to accept the status of bail during the pendency of court proceedings he assumes the responsibility of making himself available for any court appearances required of him in connection with the action[.] ). 5

16 After the preliminary arraignment, Ms. Black was fingerprinted and photographed, which took approximately an hour. App. 6a. She then went home to California. Id. In January 2013, Ms. Black returned to Montgomery County for a preliminary hearing. App. 6a. 5 In fact, no hearing took place, because Ms. Black, through counsel, waived it. 6 Thereafter, Ms. Black came back to Pennsylvania for a number of pretrial conferences. App. 6a-7a. 7 In preparation for her trial, she retained a well-known fire expert who concluded that the fire in question was electrical, not arson. App. 7a. On March 25, 2014, the expert reached out to Deputy Hand, and four days later, Ms. Black s defense attorney reached out to the assigned assistant district attorney, seeking to discuss the case. Id. See also 3d Cir. App. at A49-A50. Neither Deputy Hand nor the assistant district attorney responded to these overtures. Id. In April 2014, the case against Ms. Black went to trial. App. 7a. A jury acquitted her on all charges. Id. 5 At a preliminary hearing, the Commonwealth bears the burden of establishing at least a prima facie case that a crime has been committed and that the accused is probably the one who committed it. Commonwealth v. McBride, 595 A.2d 589, 591 (Pa. 1991). 6 See Dockets, supra n.1. At this point, the case was going forward in the Montgomery County Court of Common Pleas. Id. 7 Ms. Black has stated that she attended 12 of 14 court conferences. See App. 6a-7a. Neither her complaint nor the Court of Common Pleas docket sheds any light on the reason(s) for her non-attendance at two of them, nor is there any indication that her non-attendance had any adverse consequences. 6

17 B. Lower Court Proceedings. Ms. Black sued Trooper Pomponio and two groups of local defendants (Montgomery County and Detective Fallon; Lower Merion Township and Deputy Hand, Chief McGarvey, and detectives Henry and Garner). The 1983 claims in her Second Amended Complaint, the operative pleading, were based on two constitutional theories: Fourth Amendment malicious prosecution, and Fourteenth Amendment procedural due process. 8 The defendants filed motions to dismiss based on multiple grounds, including qualified immunity. The district court granted all three motions. See App. 28a-41a. 1. The district court explained that, under circuit precedent, one essential element of a Fourth Amendment malicious prosecution claim is a deprivation of liberty consistent with the concept of seizure as a consequence of a legal proceeding. App. 34a (citing Johnson v. Knorr, 477 F.3d 75, 82 (3d Cir. 2007)). The court recognized that one need not be in custody to suffer a seizure, as long as the state places constitutionally significant restrictions on a person s freedom of movement for the purpose of obtaining his presence at a judicial proceeding[.] App. 34a (citing Schneyder v. Smith, 653 F.3d 313, (3d Cir. 2011)). But, the district court concluded, that did not happen to Ms. Black. See App. 35a-36a. The court reasoned that the minimal pretrial restrictions to which Ms. Black was subjected resembled those 8 Ms. Black averred that Deputy Hand and detective Fallon violated her rights directly, and that the other individual defendants conspired to do so. She raised Monell custom-orpolicy claims against the county and the township. See App. 7a- 8a. 7

18 imposed on the plaintiffs in DiBella v. Borough of Beachwood, 407 F.3d 599 (3d Cir. 2005), where no seizure was found, more than those imposed in Gallo v. City of Philadelphia, 161 F.3d 217 (3d Cir. 1998), in which an ongoing seizure was found to have occurred (albeit in a situation labeled close in the opinion, id. at 222). See App. 34a-36a. Ms. Black s Fourteenth Amendment procedural due process claim was based on Halsey v. Pfeiffer, 750 F.3d 273 (3d Cir. 2014), which authorizes a former criminal defendant to pursue a stand-alone due process claim for the use of fabricated evidence under certain circumstances. The district court interpreted Halsey to bar Ms. Black s due process claim, however, because she was not convicted, noting that the [alleged] fabricated evidence could not have affected the outcome of Black s criminal case because she was found not guilty. App. 37a. Finally, the district court concluded that, because Ms. Black was unable to prove an actual deprivation of her Fourth or Fourteenth Amendment rights[,] her related conspiracy and Monell claims were not viable either. App. 37a-39a. 2. On Ms. Black s appeal, the Court of Appeals vacated and remanded with respect to both constitutional issues. App. 9a-25a. Regarding the Fourth Amendment claim, the court took an expansive view of the nature of any possible seizure, listing a range of scenarios that amount to seizures, even absent physical confinement. App. 10a-11a. And regarding the duration of any possible seizure, the court s analysis was at least as far-reaching. In Gallo, 161 F.3d at , and Schneyder, 653 F.3d at , respectively, the Court of Appeals had already explicitly adopted and adhered to Justice Ginsburg s continuing seizure interpretation of the 8

19 Fourth Amendment. See Albright v. Oliver, 510 U.S. 266, (1994) (Ginsburg, J., concurring). The Court of Appeals remained unhesitatingly faithful to that approach here, even while acknowledging the existence of great uncertainty in the law in this area. App. 12a & n.5. Thus, according to the Court of Appeals, Ms. Black s seizure began when she flew from her home in California to Pennsylvania for her arraignment because an arrest warrant had been issued and she had been directed to return. App. 15a. And the seizure continued for more than a year because Ms. Black had to attend all scheduled court proceedings (or forfeit her bond), and a cloud of very serious charges remained over her head. App. 16a. The Court of Appeals acknowledged that there was no courtimposed formal limitation on [Ms. Black s] travel. Id. In the Court of Appeals view, however, her life was presumably disrupted by the compulsion that she travel out of state a dozen times. App. 16a-17a. Therefore, her liberty was intentionally restrained by the defendants. App. 17a. Lastly, the Court of Appeals extended its Halsey decision to cover Ms. Black s asserted due process claim. Despite significant factual and procedural distinctions between Halsey and Ms. Black s case, 9 the court found no meaningful reason why due process protections precluding fabricated evidence should turn on whether or not one is convicted at 9 In Halsey, an accused double murderer was convicted and imprisoned for 22 years before being exonerated on the basis of unequivocally exculpatory DNA testing. He was allowed to pursue a due process claim against police officers who had fabricated the confession upon which the charges against him, and his later conviction, were based. 9

20 trial. App. 21a. The Court of Appeals specifically mentioned that the Seventh and Fourth Circuits do appear to require a conviction as a prerequisite to a stand-alone due process claim, but chose instead to follow Fifth, Eleventh, and Second Circuit decisions it read as permit[ting] plaintiffs to pursue due process claims predicated on the fabrication of evidence notwithstanding the fact, as here, that the plaintiff was not convicted of criminal charges. App. 22a & n.12. Although Trooper Pomponio had raised the defense of qualified immunity in his brief and at oral argument, the Court of Appeals did not address that issue. REASONS FOR GRANTING THE WRIT A person who is criminally charged but who remains free awaiting trial and is then acquitted should not be permitted to bring the type of 1983 damages suit Ms. Black has brought, against law enforcement officers involved in investigating the criminal charges at the outset. The Third Circuit decided otherwise in this matter, but other Courts of Appeals have reached divergent legal conclusions in analogous cases. This Court should therefore clarify that neither a Fourth Amendment malicious prosecution claim nor a Fourteenth Amendment due process claim against investigating officers lies in favor of an accused who is at liberty at all times and, ultimately, secures a not-guilty verdict. 10

21 I. The Circuits Are Split On Whether Law Enforcement Officers Involved In Bringing Criminal Charges Can Be Held Accountable Under The Fourth Amendment for Malicious Prosecution. The Fourth Amendment issue presented here is whether Ms. Black, who at all times was at liberty while charges were pending against her, nevertheless had a right, once acquitted, to press a constitutional malicious prosecution claim against investigating officers who had a role in bringing the case. Determining whether a Fourth Amendment cause of action for malicious prosecution exists at all and, if so, the scope of any such claim has confounded the Courts of Appeals for years. A. This petition should be held, pending a decision in Manuel v. City of Joliet. In Manuel v. City of Joliet, No , which was argued on October 5, 2016, the Court is considering whether an individual s Fourth Amendment right to be free from unreasonable seizure continues beyond legal process so as to allow a malicious prosecution claim based upon the Fourth Amendment. The petitioner in that case, who was detained for some seven weeks before pending charges against him were dropped, later filed suit pursuant to 42 U.S.C In two distinct ways the forthcoming decision in Manuel may control, or at least have a bearing upon, the Fourth Amendment issue presented here. First, in Manuel the Court has been asked to decide whether a malicious prosecution claim based upon the Fourth Amendment is cognizable. The Seventh Circuit, where Manuel arose, does not 11

22 recognize such a cause of action, but most other circuits (including the Third) permit such claims. If the Court agrees with the Seventh Circuit, Ms. Black s Fourth Amendment claim will be foreclosed. Second, if Manuel confirms that the Fourth Amendment may be the basis for a malicious prosecution claim under some circumstances, the Court s analysis can be expected to shed light on the contours of such a claim. When does the claim accrue? How long does it remain alive? Who is subject to suit? What elements must be pleaded and proved? Particularly because the Court of Appeals in this case took a very broad view of what constitutes an actionable seizure to begin with, Ms. Black s Fourth Amendment claim will not necessarily survive Manuel even if such claims can be pursued in different, narrower situations. 10 Relatedly, holding this petition would also be appropriate in light of Hartley v. Sanchez, No (petition filed April 8, 2016), which concerns the availability of qualified immunity in a Fourth Amendment malicious prosecution case. A decision in Hartley could well affect the present case, in which qualified immunity was, similarly, raised in the district court, but Hartley appears to be on hold itself, 10 For example, Manuel may illuminate whether physical confinement of the accused is required before the seizure element of a constitutional malicious prosecution claim can be satisfied. Any analysis of that issue, in turn, may undercut the continuing seizure rationale employed by the Court of Appeals in the present case. Manuel may also explore the significance, in this context, of any judicial determination of probable cause, see Gerstein v. Pugh, 420 U.S. 103, 114 (1975). Once such a determination is made, the potential Fourth Amendment exposure of officers involved only in the initial investigation of a case may be circumscribed or even eliminated. 12

23 pending a decision in Manuel. 11 That being so, the Court may wish to hold this petition as well, along with Hartley, until Manuel v. City of Joliet is decided. B. The circuits are divided regarding the extent to which one may pursue a Fourth Amendment malicious prosecution claim against an investigating officer in general. Albright v. Oliver holds that, following the dismissal of criminal charges, an arrestee cannot mount a substantive due process challenge to the aborted prosecution but must proceed, if at all, pursuant to the Fourth Amendment. Id., 510 U.S. 266, 271 (1994) (plurality opinion). But Albright express[ed] no view on what a freed suspect s possible Fourth Amendment claim might entail. Id. at 275. Nor, since Albright, has the Court ever explored the contours of a Fourth Amendment maliciousprosecution suit under 1983[.] Wallace v. Kato, 549 U.S. 384, 390 n.2 (2007). Defining the boundaries of any Fourth Amendment malicious prosecution claim presents formidable analytical challenges. The Fourth Amendment does not govern prosecutions as such. See Gerstein v. Pugh, 420 U.S. 103, 119 (1975) ( decision to prosecute not subject to judicial oversight or review under Fourth Amendment). Rather, the 11 According to the Court s Hartley docket, that petition was distributed for the conference of September 26, 2016, but the petition has not yet been acted upon. That may be because the respondent s brief in opposition in Hartley, at 8, suggested that it would be more appropriate for the Fourth Amendment malicious prosecution issue his opponents had raised to be resolved in Manuel than in Hartley itself. 13

24 Fourth Amendment governs arrests and detentions. Id., 420 U.S. at See also Albright, 510 U.S. at 274 ( Framers considered the matter of pretrial deprivations of liberty and drafted the Fourth Amendment to address it ). At common law, one element of a malicious prosecution claim is, in essence, prosecution without probable cause, but constitutionally a decision to prosecute (as opposed to a decision to arrest or detain) need not be supported by probable cause. Finally, common law malicious prosecution requires an acquittal or its equivalent, but the eventual outcome of a criminal case has nothing to do with the Fourth Amendment probable cause analysis at the arrest stage. See Michigan v. DeFillippo, 443 U.S. 31, 36 (1979) (later acquittal of suspect is irrelevant to validity of arrest). Well before Albright, the Courts of Appeals had confronted these analytical hurdles without reaching consensus. 12 Since then, the problem has persisted, as the Court of Appeals itself pointed out in this case. App. 12a & n.5 (noting great uncertainty in the law post-albright). By now, nearly all the Courts of Appeals have concluded that Fourth Amendment claims related to the allegedly wrongful initiation and pursuit of baseless criminal charges are cognizable (though not 12 When Albright was decided, most circuits had recognized some form of malicious prosecution action under 1983[,] but there was an embarrassing diversity of judicial opinion on the subject at that time. Albright, 510 U.S. at 270 n.4. Some circuits deemed the elements of a 1983 malicious prosecution action the same as the elements of a common law malicious prosecution claim, while other circuits demanded a showing of some injury or deprivation of a constitutional magnitude in addition to the traditional elements of a common-law claim. Albright, 510 U.S. at 270 n.4. 14

25 every court assigns the malicious prosecution label to such claims). 13 Any veneer of uniformity is misleading, however. Overall, the Courts of Appeals have crafted different analytical approaches to these claims. See, e.g., Hernandez-Cuevas v. Taylor, 723 F.3d 91, (1st Cir. 2013) (summarizing and categorizing other courts decisions); Castellano v. Fragozo, 352 F.3d 939, (5th Cir. 2003) (also summarizing caselaw but sorting decisions differently). One ongoing concern is the temporal reach of the Fourth Amendment. A number of the courts that allow Fourth Amendment malicious prosecution claims agree, implicitly if not explicitly, with this pronouncement by the First Circuit: Fourth Amendment protection against seizure but upon probable cause does not end when an arrestee 13 In addition to the decision of the Third Circuit in this case, recent reported decisions from other circuits include Hernandez- Cuevas v. Taylor, 723 F.3d 91, (1st Cir. 2013); Swartz v. Insogna, 704 F.3d 105, 111 (2d Cir. 2013); Evans v. Chalmers, 703 F.3d 636, 647 (4th Cir. 2012); Castellano v. Fragozo, 352 F.3d 939, (5th Cir. 2003); Sykes v. Anderson, 625 F.3d 294, (6th Cir. 2010); Awabdy v. City of Adelanto, 368 F.3d 1062, 1066 (9th Cir. 2004); Novitsky v. City of Aurora, 491 F.3d 1244, (10th Cir. 2007); Grider v. City of Auburn, 618 F.3d 1240, 1256 (11th Cir. 2010); Pitt v. District of Columbia, 491 F.3d 494, (D.C. Cir. 2007). As noted in Part I.A above, the Seventh Circuit s distinctive focus on Fourteenth Amendment due process, without regard to the Fourth Amendment, is under review in Manuel v. City of Joliet. The Eighth Circuit has declined to enter the debate regarding whether or when malicious prosecution violates the Fourth Amendment. Harrington v. City of Council Bluffs, 678 F.3d 676, 680 (8th Cir. 2012). See also Joseph v. Allen, 712 F.3d 1222, 1228 (8th Cir. 2013) ( allegation of malicious prosecution without more cannot sustain a civil rights claim under 1983 ). 15

26 becomes held pursuant to legal process. Hernandez- Cuevas, 723 F.3d at On the other hand, according to the Fifth Circuit, the umbrella of the Fourth Amendment, broad and powerful as it is, casts its protection solely over the pretrial events of a prosecution. Castellano, 352 F.3d at 959. Similarly, in the eyes of the Seventh Circuit which does not permit Fourth Amendment malicious prosecution claims at all the Fourth Amendment necessarily drops out of the picture following a person s initial appearance in court. Llovet v. City of Chicago, 761 F.3d 759, 763 (7th Cir. 2014). Absent resolution of these issues in Manuel, the Court should now clarify whether, and on what terms, the Fourth Amendment confers an open-ended right on an individual who eventually prevails in criminal proceedings to sue the law enforcement officers who originally investigated the case. C. The circuits are further divided regarding the viability, in this context, of the continuing seizure theory. This case presents a separate Fourth Amendment question over which the circuits are sharply divided: once a person is accused of a crime, what constitutes an actionable seizure? More precisely, is one automatically and indefinitely seized for Fourth Amendment purposes merely because one has to 14 If a person is detained pursuant to an arrest warrant, legal process begins at that point. See, e.g., Wilkins v. DeReyes, 528 F.3d 790, 799 (10th Cir. 2008). If someone is arrested without a warrant, legal process commences when probable cause for continued detention is judicially confirmed. See Gerstein,420 U.S. at

27 respond to criminal charges? The Court suggested otherwise in Gerstein, 420 U.S. at 125 n. 26 (probable cause determination is required only for those suspects who suffer restraints on liberty other than the condition that they appear for trial ) (emphasis added). Despite that signal, not all Courts of Appeals agree. Quintessentially, one who is subjected to prolonged detention while awaiting trial is seized pursuant to the Fourth Amendment. See Gerstein, 420 U.S. at 114. But Ms. Black was not physically detained for a single moment. The Court of Appeals conclusion that she was still seized flows entirely from its application of the continuing seizure doctrine, originally articulated by Justice Ginsburg in her Albright concurrence, 510 U.S. at , and first embraced by the Third Circuit in Gallo, 161 F.3d at See App. 12a-17a. The essence of the continuing seizure doctrine is that a defendant released pretrial remains apprehended, arrested in his movements so long as he is bound to appear in court and answer the state s charges. Albright, 510 U.S. at (Ginsburg, J., concurring). To date, the full Court has not parsed Justice Ginsburg s interpretation of the law. Moreover, many of the Courts of Appeals have declined to adopt the continuing seizure doctrine. The First Circuit expressly rejected it in Nieves v. McSweeney, 241 F.3d 46, (1st Cir. 2001) (surveying cases and concluding the view that an obligation to appear in court to face criminal charges constitutes a Fourth Amendment seizure is not the law ). See also Harrington v. City of Nashua, 610 F.3d 24, (1st Cir. 2010); Britton v. Maloney, 196 F.3d 24, (1st Cir. 1999). Similarly, in the alleged-maliciousprosecution context and otherwise, the Fourth, 17

28 Seventh, Ninth, Tenth, and Eleventh Circuits have not adhered to the continuing seizure theory. See, e.g., Riley v. Dorton, 115 F.3d 1159, (4th Cir. 1997) (en banc); Wiley v. City of Chicago, 361 F.3d 994, 998 (7th Cir. 2004); Karam v. City of Burbank, 352 F.3d 1188, (9th Cir. 2003); Becker v. Kroll, 494 F.3d 904, 915 (10th Cir. 2007); Kingsland v. City of Miami, 382 F.3d 1220, 1236 (11th Cir. 2004). On the other side of the divide stand three circuits. The Second Circuit endorsed the continuing seizure doctrine in Murphy v. Lynn, 118 F.3d 938, 946 (2d Cir. 1997) (restricting accused citizen s right to travel outside state and ordering accused to make periodic court appearances amounts to seizure). See also Swartz v. Insogna, 704 F.3d 105, 112 (2d Cir. 2013); Rohman v. New York City Transit Auth., 215 F.3d 208, 216 (2d Cir. 2000). The Fifth Circuit has taken the same path. See Evans v. Ball, 168 F.3d 856, (5th Cir. 1999) (pretrial requirements diminished [the accused s] liberty enough to render him seized ). 15 And in Gallo, 161 F.3d at 224, the Third Circuit explicitly agreed with Murphy. 15 Evans went on to find, however, that the law was not clearly established at the time of the challenged incident, so qualified immunity shielded the defendants from liability. Id., 168 F.3d at Similarly, in Tech. Ordnance, Inc. v. United States, 244 F.3d 641, 651 (8th Cir. 2001), the Eighth Circuit found qualified immunity applicable due to the uncertain state of the law. Unlike the Fifth Circuit, though, that court did not accept or reject the plaintiffs continuing seizure contention; it left the underlying Fourth Amendment issue unresolved. The Sixth Circuit, too, has not taken a definitive position on the continuing seizure doctrine. It took note of the issue in Johnson v. City of Cincinnati, 310 F.3d 484, (6th Cir. 2003), but concluded it did not need to decide the question in that particular case. 18

29 ********** The sheer number of disparate Court of Appeals decisions touching on the nature and scope of potential Fourth Amendment malicious prosecution claims is, in and of itself, an indication that the issues presented in this case are both recurrent and important. For the reasons sketched above, the Court should settle the matter by recognizing that, for conceptual reasons, malicious prosecution is a tort, not a constitutional claim. Even if there may be situations under which a viable Fourth Amendment malicious prosecution claim can be raised and pursued, the continuingseizure-based approach taken by the Court of Appeals in this case is flawed. It is standard-less and therefore unworkable. The Third Circuit found that Ms. Black had a colorable constitutional claim because she was subject to a continuing seizure; and the court further found that she was subject to a continuing seizure only by virtue of the seriousness of the charges against her and the burden, on her, of having to travel to Pennsylvania for court sessions. App. 16a. Those factors, however, did not tip the balance in any other case. Rather, the accused in Becker was, like Ms. Black, accused of a felony, see 494 F.3d at 911, but that did not sway the Tenth Circuit in her favor. Similarly, the accused in Kingsland, like Ms. Black, had to travel a long way, to a distant state, for multiple court appearances, see 382 F.3d at 1236, but that did not persuade the Eleventh Circuit that she suffered a significant deprivation of liberty. Id. Utilizing the Third Circuit s framework, what is serious or burdensome is largely a subjective determination. Depending on the personal profile of 19

30 the accused, even misdemeanor offenses may be serious, and traveling to court repeatedly, in-state, by public transportation may be quite burdensome. If seriousness and burdensomeness are the only benchmarks, virtually any suspect who is not detained may experience a continuing seizure and, with that, may have a potential Fourth Amendment malicious prosecution claim. Until now, no court has gone so far. 16 II. The Court Should Also Clarify Whether A Person Who Is Criminally Charged But Never Physically Confined Or Restricted, And Is Later Acquitted, Can Nevertheless Pursue A Fourteenth Amendment Due Process Claim. Ms. Black also raised what she termed a procedural due process claim, 17 related to the alleged suppression and destruction of evidence and the use of fabricated evidence against her. See 3d Cir. App. at A55-A61. The Court of Appeals referred to all 16 It bears mentioning that Ms. Black also did not experience the kinds of lesser pretrial restrictions that some courts have found determinative in continuing seizure cases. That is, in contrast to the charged individuals in Murphy, Evans, and Gallo, Ms. Black was not subject to any court-imposed travel restrictions. Furthermore, in contrast to what happened in both Evans and Gallo, Ms. Black was not compelled to comply with any pretrial reporting requirements. 17 Presumably Ms. Black chose that terminology in light of Albright, which is generally understood to have barred 1983 substantive due process claims by individuals contesting state actors unjustified initiation and pursuit of criminal charges. The Court of Appeals referred, instead, to a stand-alone due process claim. App. 18a, 20a, 23a. 20

31 of these misdeeds collectively as fabrication. App. 18a. Pointedly disagreeing with the acquittal-based rationale of the district court in dismissing this portion of Ms. Black s lawsuit (see App. 36a-37a), the Court of Appeals stated that [t]here is no meaningful reason why due process protections precluding fabricated evidence should turn on whether or not one is convicted at trial. App. 21a. The court therefore held that an acquitted criminal defendant may have a stand-alone fabricated evidence claim against state actors under the due process clause of the Fourteenth Amendment if there is a reasonable likelihood that, absent the fabricated evidence, the defendant would not have been criminally charged. App. 23a. In addition to its own decision in Halsey v. Pfeiffer, 750 F.3d 273 (3d Cir. 2014), the Court of Appeals based its due process conclusion on cases from the Fifth, 18 Eleventh, 19 and Second 20 circuits that, as the court put it, have permitted plaintiffs to pursue due process claims predicated on the fabrication of evidence notwithstanding the fact, as here, that the plaintiff was not convicted of criminal charges. App. 22a. Specifically acknowledging that [t]wo Courts of Appeals appear to require a conviction as a prerequisite to a stand-alone due process claim[,] the Third Circuit refused to be guided by those decisions. App. 22a-23a & n Outwardly, then, by the Third 18 Cole v. Carson, 802 F.3d 752 (5th Cir. 2015). 19 Weiland v. Palm Beach Ct. Sheriff s Office, 792 F.3d 1313 (11th Cir. 2015). 20 Zahrey v. Coffey, 221 F.3d 342 (2d Cir. 2000); Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123 (2d Cir. 1997). 21 The referenced contrary decisions are Saunders-El v. Rohde, 778 F.3d 556 (7th Cir. 2015), and Massey v. Ojaniit, 759 F.3d 343 (4th Cir. 2014). 21

32 Circuit s own reckoning, there is a circuit split with regard to the viability of Ms. Black s due process claim. By its terms, the Fourteenth Amendment forbids the deprivation of life, liberty, or property, without due process of law. U.S. CONST. amend. XIV, 1. When Ms. Black invoked the Fourteenth Amendment to challenge the alleged use of fabricated-evidence in the criminal proceedings against her, she efffectively asserted a deprivation of liberty (as opposed to life or property). As to this fundamental issue, whether she was convicted or acquitted is an essential part of the calculus. The decision in Saunders-El v. Rohde, 778 F.3d 556 (7th Cir. 2015), discounted by the Court of Appeals (see App. 23a & n.12), summarizes why this is so. Saunders-El recognizes that fabrication of evidence violates due process if illegitimate evidence is used to deprive the accused of liberty. Id., 778 F.3d at 560. But [n]ot every act of evidence fabrication offends one s due process rights[.] Id. While using fabricated evidence to obtain a conviction does violate the accused s constitutional rights, one who is acquitted does not necessarily have such a claim. In other words, if someone is confined after arrest on the basis of fabricated evidence and later acquitted, that person will have suffered a deprivation of liberty between arrest and acquittal, and a due process claim for that deprivation will lie. Id. at On the other hand, if someone is released on bond pending trial, and later acquitted, that person cannot claim to have been deprived of liberty in the interim, because the burden of appearing in court and attending trial, in and of itself, is not a deprivation of liberty. Id. at 561. Again, absent some deprivation of liberty, there cannot be a due process violation. 22

33 Thus, the reason why one who is not confined pending trial and is eventually acquitted cannot state a cognizable Fourteenth Amendment due process claim (i.e., no deprivation of liberty) neatly parallels the reason why such a person cannot state a cognizable Fourth Amendment malicious prosecution claim (i.e., no continuing seizure). Not surprisingly, given the Court of Appeals acceptance of the continuing seizure doctrine, it disagree[s] with Saunders-El. App. 23a &. n.12. On closer scrutiny, the decisions of other courts relied upon by the Court of Appeals allowing acquitted individuals to press fabrication-of-evidence due process claims are not inconsistent with Saunders-El because, in each, the civil plaintiff was deprived of liberty. 22 Nevertheless, to the extent that there is disagreement among the Courts of Appeals regarding the significance of an acquittal in the 22 In Cole, a petition for certiorari was recently granted, the judgment was vacated, and the case has been remanded for further proceedings. See Hunter v. Cole, No (U.S. Nov. 28, 2016). Thus, the Fifth Circuit opinion is no longer authoritative. In any event, as a result of fictitious charges, the plaintiff in Cole was confined under house arrest for about a year and a half before most of the charges against him were dismissed (and he received delayed adjudication on a weapons charge), so he was deprived of liberty. Id., 802 F.3d at 764. In Wieland, the plaintiff was incarcerated for nearly two years awaiting trial before being acquitted. Id., 792 F.3d at The Eleventh Circuit specifically found that his unjust incarceration was a deprivation of liberty redressable under the Due Process Clause[.] Id. at In Zahrey, the plaintiff was deprived of liberty by being held without bail for eight months before he was acquitted. Id., 221 F.3d at 346. Finally, the plaintiffs in Ricciuti were forced to remain in jail for more than 30 hours before being released on their own recognizance. Id., 124 F.3d at

34 fabrication-of-evidence context, clarification is in order. ********** The criminal justice system is meant to protect the public while also ensuring that the constitutional rights of people accused of crimes are respected throughout any judicial proceedings. See, e.g., Gerstein, 420 U.S. at 112. There must be, and are, avenues for individuals prosecuted on the basis of evidence believed to be fabricated to contest the use of such evidence before and during trial, and to challenge an unwarranted conviction, based on such evidence, after-the-fact. Indeed, the principle that a conviction based on fabricated evidence contravenes the Fourteenth Amendment and cannot stand has been recognized for a long time. See, e.g., Mooney v. Holohan, 294 U.S. 103, 112 (1935). See also Napue v. People of the State of Ill., 360 U.S. 264, 269 (1959); Pyle v. State of Kansas, 317 U.S. 213, 216 (1942). 23 In this case, the Court of Appeals stretched the concept of due process beyond the breaking point. The overriding flaw in the court s decision is its decoupling of the fundamental right to due process of law from the bedrock principle that, unless there is a deprivation of life, liberty, or property, there cannot be a denial of due process. In so doing, the Third 23 In light of this principle, as the Third Circuit s Halsey decision exemplifies, id., 750 F.3d at 294, one wrongly convicted may be entitled not only to release but also to civil damages. It does not follow, however, that a civil damages remedy against investigating officers is uniformly available whenever arguably questionable evidence is utilized in a prosecution. 24

35 Circuit has recognized a new, freestanding due process right to be free from any use of false evidence, which is violated if a person is unfairly compelled to participate in the very process that exists to and does afford due process. As the Seventh Circuit has observed, that is simply illogical: It would be anomalous to hold that attending a trial deprives a criminal defendant of liberty without due process of law, when the purpose of the trial is to effectuate due process. Saunders-El, 778 F.3d at 561 (quoting Alexander v. McKinney, 692 F.3d 553, 557 n.2 (7th Cir. 2012)). See also Bianchi v. McQueen, 818 F.3d 309, (7th Cir. 2016) (following Saunders-El and Bianchi). If allowed to stand, the due process ruling of the Third Circuit will enable anyone who is obliged to respond to any official accusation (even outside the criminal context), and who prevails, to pursue a Fourteenth Amendment due process claim for damages. The Court should confirm that a person accused of a crime but neither confined pretrial nor otherwise deprived of liberty, and eventually acquitted, cannot press such a stand-alone due process claim against law enforcement officers for allegedly fabricating evidence. III. Summary Reversal Is Warranted On The Basis Of Qualified Immunity, Given The Divergent Views In The Courts of Appeals On The Fourth And Fourteenth Amendment Issues Presented Here. Qualified immunity shields government officials from civil damages liability unless the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct. 25