dissenting:
Although I agree with much in the majority opinion, I respectfully dissent because I see no basis for Murphy’s malicious prosecution claim under the Fourth Amendment.
Albright makes plain that a § 1983 claim for malicious prosecution must be premised on a violation of a Fourth Amendment right. See 118 F.3d at 944. Although Murphy may have been richly entitled to a recovery under causes of action that are time-barred, see Murphy I, 53 F.3d 547, 548 (2d Cir.1995), the majority opinion correctly holds that Murphy cannot prevail unless he can show a post-arraignment seizure. The majority goes on to say, erroneously, that Murphy was seized by reason of (i) the restriction on out-of-state travel imposed as a condition of Murphy’s release, and (ii) Murphy’s required appearances in court.
These limitations on Murphy’s freedom do not rise to the level of a constitutional deprivation under the Fourth Amendment. Under the majority’s analysis, every defendant in a criminal case will be deemed to be seized: at one end of the continuum, a defendant will be in jail, and thus be seized in fact; at the other end, a defendant will be released on recognizance (like Murphy) and be deemed seized anyway by reason of the incidental travel restriction and the obligation to appear in court. (It is undisputed that in New York no person against whom a criminal charge is pending may leave the state without the prior permission of the court.) In effect, the majority opinion adopts Justice Ginsburg’s solitary concurrence in Albright, that the pendency of a criminal proceeding alone is enough to support a § 1983 claim under the Fourth Amendment—a view that two circuits have rejected and a third has questioned.1 Perhaps the majority of this Panel believes that release on one’s own recognizance is analogous to being held in jail—but that is a view that no one in a cell is likely to share.
The majority errs by failing in this case to observe the distinction we drew in Singer v. Fulton County Sheriff, 63 F.3d 110 (2d Cir. 1995) between the state tort of malicious prosecution and a § 1983 claim for malicious prosecution in violation of the Fourth Amendment. The majority does not expressly erase that distinction; but by ignoring it in this case, the majority invites the federalizing of the tort of malicious prosecution. The law of this Circuit requires that a § 1983 plaintiff allege and prove, in addition to the elements of the state malicious prosecution tort action, “some post-arraignment deprivation of liberty that rises to the level of a constitutional violation.” Id. at 117. Murphy failed to show any such constitutional deprivation in respect of his remaining claim for malicious prosecution.
Neither of the restrictions cited by Murphy amounts to a Fourth Amendment seizure.
(1) Murphy’s freedom to travel out-of-state was limited, and he should have been free of that restraint. But was he seized? The constitutional right implicated here is the right to travel, and that right (as the majority virtually concedes) cannot be localized in the Fourth Amendment, except I suppose to the extent that one incident of being held in prison in New York is that one cannot go to Ohio. See Zobel v. Williams, 457 U.S. 55, 60 n. 6, 102 S.Ct. 2309, 2312, 72 L.Ed.2d 672 (1982) (“both the nature and the source of [the right to travel] have remained obscure”). But, in my view, a person who is free to come and go in his own town and state cannot be said to be “seized” within the meaning of the Fourth Amendment.
Although the majority opinion concedes that the “roots [of the right to travel] have never been identified with particularity,” 118 F.3d at 945, the opinion argues that Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975) “made plain that the liberties protected by [the Fourth] Amendment *954included the accused’s freedom to travel while on pretrial release,” id. at 945. But the way in which Gerstein supposedly makes this “plain” is that Gerstein cites the (now-repealed) 18 U.S.C. § 3146(a)(2) to illustrate the “burdensome conditions that may effect a significant restraint of liberty.” 118 F.3d at 945-46. True, the conditions of release listed in § 3146(a)(2) include restrictions on travel, but that subsection also lists restrictions on “place of abode,” a category that includes home detention, which may well amount to seizure under the Fourth Amendment. There is no way to tell whether the Supreme Court intended to classify travel restriction as a “burdensome condition,” but I do not agree that the citation to § 3146(a)(2) in Ger-stein settles the issue or “makes plain” much of anything.
In any event, I would not reach that question in this case, because Murphy did not plead and did not prove that the limitation on his right to travel had the slightest effect on his comings and goings. Murphy’s complaint does not mention the right to travel.2 And the district court erroneously charged the jury that “if you find that [Murphy] was forbidden from leaving the State of New York, that may be regarded by the jury as significant deprivation of his liberty, even if there is no evidence that he actually would have left the state or intended to leave the state during the period that he was so restricted.” (Emphasis added.) Murphy points to no record evidence that he sought to leave New York, or was denied permission to leave—or had ever set foot outside the state. This is no mere detail. Without some evidence on this subject (and a charge re-fleeting Murphy’s burden to prove his case), the jury could not determine the extent of any limitation on Murphy’s actual freedom of movement, or formulate a non-speculative compensatory award. “The abstract value of a constitutional right may not form the basis for § 1983 damages.” Memphis Community School Dist. v. Stachura, 477 U.S. 299, 308, 106 S.Ct. 2537, 2543, 91 L.Ed.2d 249 (1986).
It is self-evident that a citizen held by the authorities in jail or in a police station, or even in home confinement, has suffered a deprivation of a liberty that would otherwise be exercised and enjoyed. But I do not see how the limitation on out-of-state travel can support compensatory damages without a showing by Murphy that he successfully sought leave to travel (a humiliation that in itself might arguably support a damages award); or sought leave and was denied (a circumstance that might well support an award); or wished to go but decided to forgo the opportunity rather than ask. See Carey v. Piphus, 435 U.S. 247, 257, 98 S.Ct. 1042, 1048-49, 55 L.Ed.2d 252 (1978) (“a person should be compensated fairly for injuries caused by the violation of his legal rights”); Singer, 63 F.3d at 116 (damages award “must always be designed to compensate injuries caused by the [constitutional] deprivation”) (internal quotations omitted). Cf. Nordlinger v. Hahn, 505 U.S. 1, 10-11, 112 S.Ct. 2326, 2331-32, 120 L.Ed.2d 1 (1992) (no standing to challenge residency provision of state constitution on right to travel grounds where complaint did not allege that individual plaintiff was impeded from travelling or settling within the state). With such a record, a jury would have a basis for arriving at some compensatory dollar award (assuming *955the travel limitation violated Murphy’s Fourth Amendment rights), and such an award might well be appropriate. See King v. Maori, 993 F.2d 294, 297 (2d Cir.1993) (compensatory damages are appropriate in § 1983 malicious prosecution eases where damages are adequately supported). On the present record, however, the 6-month bar on Murphy’s freedom to leave the state is no more palpable or compensable a restraint than a bar on his visiting another planet.
(2) Equally strange is the majority’s holding that Murphy was seized within the meaning of the Fourth Amendment because he was required to appear in court. A probable cause determination is required only for “those suspects who suffer restraints on liberty other than the condition that they appear for trial.” Gerstein, 420 U.S. at 125 n. 26, 95 S.Ct. at 869 n. 26 (emphasis added). No doubt a court appearance is burdensome, and eight of them constitutes a burden that is not hypothetical or minor: indeed, the only record evidence of economic loss is Murphy’s loss of employment because he was so frequently in court. But I had previously thought that a defendant’s court appearances were occasions for the conduct of due process. See, e.g., Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 656-57, 94 L.Ed. 865 (1950) (due process requires at a minimum “that deprivation of life, liberty or property by adjudication be preceded by ... opportunity for hearing appropriate to the nature of the case”); cf. U.S. Const., amend. XIV, § 1. Indeed, the outcome of the court proceedings in this case was dismissal of the charges against Murphy.3 The majority has thus transmuted due process itself into a constitutional tort.
. See Riley v. Dorton, 115 F.3d 1159, 1162-64 (4th Cir.1997) (in banc) (rejecting continuing seizure approach to § 1983 excessive force after arrest claim); Reed v. City of Chicago, 77 F.3d 1049, 1052 n. 3 (7th Cir.1996) (rejecting continuing seizure approach to § 1983 malicious prosecution claim). See also Whiting v. Traylor, 85 F.3d 581, 584 (11th Cir.1996) (expressing concerns about continuing seizure approach to § 1983 malicious prosecution claim).
.The original complaint alleges the deprivation of the following constitutional rights:
1. the right not to be deprived of liberty without due process of law;
2. the right to be free of unreasonable seizure and unlawful arrest by police officers acting under color of law;
3. the right not to have summary punishment imposed upon him by police officers acting under color of law;
4. the right not to have excessive force used against him by police officers acting under color of law;
5. the right not to have false charges lodged against him by police officers acting under color of law;
6. the right to be free of malicious prosecution by a police officer acting under color of law;
7. the right to be free from harassment;
8. the right to be free from excessive uses of force;
9. the right to be free to enjoy public meetings and gatherings without interference;
10. the right to equal protection of the laws; and
11. the right not to be discriminated against on grounds of race or ethnicity.
. I agree with the majority that the dismissal of the charges constituted a favorable termination of the proceedings against Murphy; however, I do not believe that dismissal for lack of a speedy trial always bespeaks innocence. The question of a favorable termination is often a fact-specific inquiry. See, e.g., Hankins v. Great Atl. and Pac. Tea Co., 622 N.Y.S.2d 678, 680-81, 208 A.D.2d 111 (1st Dep't 1995) (dismissal "in interests of justice” where criminal defendant had submitted uncontroverted alibi may constitute a favorable termination); Campo v. Wolosin, 622 N.Y.S.2d 465, 211 A.D.2d 661 (2d Dep’t 1995) (Mem.) (dismissal for failure to prosecute, where prosecutors lacked interest in pursuing case, was indicative of innocence). The district court’s sound ruling on this question was expressly grounded on the evidence.