In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13‐3351
GILBERT LLOVET,
Plaintiff‐Appellant,
v.
CITY OF CHICAGO, et al.,
Defendants‐Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 13 C 4923 — Rubén Castillo, Chief Judge.
____________________
ARGUED JULY 9, 2014 — DECIDED 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, un‐
der 42 U.S.C. § 1983 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 aggra‐
vated battery against him. The district court dismissed the
plaintiff’s suit on the authority of our decision in Newsome v.
2 No. 13‐3351
McCabe, 256 F.3d 747, 750–51 (7th Cir. 2001), which holds (as
do subsequent cases of ours such as Avila v. Pappas, 591 F.3d
552, 553–54 (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 con‐
tends both is unsound and has been rejected by most 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 want us to hold, in direct opposition to
the Newsome line of cases, that 42 U.S.C. § 1983 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 deter‐
mines that there is probable cause to hold him for trial un‐
less he makes bail); and further that a claim, based on the
Fourth Amendment, for malicious prosecution “accrues up‐
on the favorable termination of criminal proceedings” and
thus does not have to be filed within the statute of limita‐
tions 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 Four‐
teenth Amendment is not actionable if the alleged violation
was the unauthorized act of a rogue state officer rather than
No. 13‐3351 3
an application of state law or policy, as long as the state pro‐
vides an adequate remedy for the wrongful act of its em‐
ployee. 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 ad‐
equate 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 due process clause, and that
all that the plaintiff has to prove in order to establish a viola‐
tion of the Fourth Amendment is that he was wrongfully in
detention at some point. He argues that other courts of ap‐
peals 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 sec‐
tion 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 mali‐
cious prosecution, which the cases believe justifies ground‐
ing the malicious prosecution claim in the Fourth Amend‐
ment, thus avoiding the Parratt principle. Pitt v. District of
Columbia, 491 F.3d 494, 510–11 (D.C. Cir. 2007); Hernandez–
Cuevas v. Taylor, 723 F.3d 91, 99–101 (1st Cir. 2013); Swartz v.
Insogna, 704 F.3d 105, 111–12 (2d Cir. 2013); Gallo v. City of
Philadelphia, 161 F.3d 217, 221–22 (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, 1257–58 (10th Cir. 2007); Kingsland v. City of Mi‐
ami, 382 F.3d 1220, 1234 (11th Cir. 2004).”
4 No. 13‐3351
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 mali‐
cious acts by state officers result in a seizure that is unrea‐
sonable within the meaning of the Fourth Amendment, the
victim can seek relief under 42 U.S.C. § 1983—though it is
important to bear in mind, as we had occasion to reiterate in
Scherr v. City of Chicago, 2014 WL 2958611 (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.
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, 663–64
(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 “New‐
some did have a potential Fourth Amendment claim, but
that it could not be pursued because the statute of limita‐
tions 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 mali‐
cious prosecution remedy under state law was adequate to
No. 13‐3351 5
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 oc‐
casion. 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 still in jail, awaiting trial
on both charges, when he was tried for and acquitted of ag‐
gravated 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 con‐
tends that the filing of the aggravated‐battery charge sus‐
pended his statutory right to a speedy trial on the misde‐
meanor charge, and as a result he was in jail longer than he
would have been had it not been for the defendants’ mali‐
cious 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.
6 No. 13‐3351
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 opin‐
ion in Julian v. Hanna treat malicious protraction of detention
as a “continuing seizure,” violative of the Fourth Amend‐
ment—Hernandez–Cuevas v. Taylor, 723 F.3d at 99–100; Swartz
v. Insogna, 704 F.3d at 112, and Gallo v. City of Philadelphia,
161 F.3d at 222–24—as do two Sixth Circuit cases, Sykes v.
Anderson, 625 F.3d 294, 663–64 (6th Cir. 2009); Gregory v. City
of Louisville, 444 F.3d 725, 747–51 (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 contin‐
uation 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 prose‐
cution] 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 unreasona‐
ble seizure, forbidden by the Fourth Amendment; Wallace v.
Kato, 549 U.S. 384, 389 (2007), holds that “the sort of unlaw‐
No. 13‐3351 7
ful 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 doc‐
trine of “continuing seizure” is wrong, as we held for exam‐
ple 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 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. John‐
son, 609 F.3d 858, 866–67 (6th Cir. 2010), and Taylor v. Waters,
81 F.3d 429, 436–37 (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 be‐
comes a Fourth Amendment violation if it lasts longer than it
8 No. 13‐3351
should. Those decisions include Evans v. Chalmers, supra, 703
F.3d at 647; Becker v. Kroll, 494 F.3d 904, 915–16 (10th Cir.
2007) (and other cases cited in that case); Pitt v. District of Co‐
lumbia, supra, 491 F.3d at 499–500, 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, 1162–
64 (4th Cir. 1997) (en banc); cf. Kingsland v. City of Miami, su‐
pra, 382 F.3d at 1235–36. 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 is being unlawfully
detained. In Wolff v. McDonnell, 418 U.S. 539, 544, 557 (1974),
for example, the Supreme Court held that to prolong deten‐
tion by depriving a state prisoner of good‐time credits with‐
out 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 ar‐
gument, 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 be‐
yond 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 re‐
quired him to post a $100,000 bond), the defendant remained
in jail past the 12‐month deadline for holding him on the
lesser charge.
No. 13‐3351 9
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 imme‐
diate physical restraint on a person. There is a difference be‐
tween 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 process clause as a basis
for challenging his detention. It’s not unusual for new charg‐
es 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 applica‐
tion 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 im‐
prisonment. 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 du‐
10 No. 13‐3351
plicative 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 dif‐
ferent cases—far too many—yet omits a statement of facts
without conceding the accuracy of the plaintiff’s fact state‐
ment. Considering the City’s precarious financial condition,
we would have expected greater economy and selectivity in
citations—and more facts.
AFFIRMED.