Covington v. City of New York

GLASSER, Judge,

dissents.

I respectfully disagree with the conclusion reached by the majority and would affirm the decision of the district court which dismissed the plaintiffs § 1983 claim bottomed upon his false arrest for the reason that his action was commenced more than three years after his cause- of action accrued and was thus barred by the statute of limitations.

The fundamental flaw in the application of Heck v. Humphrey 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994) to this case lies in the failure to distinguish the basic but crucial difference between the tort of false imprisonment (of which false arrest is merely a variant) and the tort of malicious prosecution — a difference that “in this context has escaped the collective wisdom of many courts.” 512 U.S. at 496, 114 S.Ct. 2364. At the outset, it is important to note that that portion of his § 1983 action bottomed upon malicious prosecution was properly dismissed and this appeal before us concerns only the dismissal of his false arrest claim.

Heck reiterated the Court’s teaching “that 42 U.S.C. § 1983 creates a species of tort liability” and that “to determine whether there is any bar to [a § 1983] suit, we look first to the common law of torts” 512 U.S. at 483, 114 S.Ct. 2364.

It would be an affectation of legal research to cite a plethora of cases and the many treatises on the law of torts to confirm that the tort of false imprisonment is the unlawful detention or confinement of the plaintiff intentionally caused, by the defendant. False arrest is simply an unlawful detention or confinement brought about by means of an arrest rather than in some other way and is in all other respects synonymous with false imprisonment. It is also generally required that the plaintiff be conscious of his detention or confinement. The interest sought to be protected by this tort is the interest each of us has to remain free from restraint of movement and is actionable under common law and the Fourth Amendment where the unlawful detention or confinement is intentionally caused regardless of whether a criminal prosecution is instituted thereafter. The cause of action accrues at the time of the detention or confinement as does the running of the statute of limitations. Day v. Morgenthau, 909 F.2d 75, 79 (2d Cir.1990) (as amended on rehearing), cert. denied, 506 U.S. 821, 113 S.Ct. 71, 121 L.Ed.2d 37 (1992) (day of alleged unlawful arrest was the day of accrual of plaintiffs claims contrary to plaintiffs contention that his claims accrued on the date of his arraignment). “[D]amages for that claim cover the time of detention up until the issuance of process or arraignment and not more.” 512 U.S. at 484, 114 S.Ct. 2364 (quoting W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts 888 (5th ed.1984)).

Heck holds that a damages claim that “necessarily demonstrates the invalidity of a conviction” may not be brought while the conviction stands. 512 U.S. at 481-82, 114 S.Ct. 2364. A claim for damages based upon a false arrest does not necessarily impugn the validity of a conviction should a prosecution be instituted.1 That this is so becomes clear by considering the following illustrations. Assume, for example, an arrest is made and no statement is taken or evidence seized incident to it. A common law action for false arrest or an action pursuant to § 1983 is thereafter com*126menced and a verdict rendered in favor of the plaintiff. An indictment is, however, thereafter duly obtained and the plaintiff is convicted. The validity of the conviction is not at all impugned by the result of the action for false arrest. In Gonzalez v. Entress, 133 F.3d 551 (7th Cir.1998) Judge Easterbrook stated it thus at 553: “Wrongful invasions of property are actionable ... under state law and the fourth amendment, no matter what happens to the criminal prosecution. Suppose a person says something like T was arrested without probable cause and spent a night in jail until my wife came up with bail money.’ That injury is compensable whether or not the person is later convicted — indeed, whether or not he is later prosecuted. The rationale of cases such as Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980), and Haring v. Prosise, 462 U.S. 306, 103 S.Ct. 2368, 76 L.Ed.2d 595 (1983), which hold that a criminal prosecution does not bar civil search and seizure claims under principles of preclusion (collateral estoppel or res judicata) is that a search can be unlawful but the conviction entirely proper, or the reverse, and that some injury from a violation of the fourth amendment is unrelated to conviction.”

Assume further, that evidence was seized or a statement taken incident to the unlawful arrest. The false arrest or § 1983 claim is immediately actionable even if the prosecutor never tries to use the evidence or statement at trial. And even if the evidence or statement is used at trial, the validity of the subsequent conviction would not necessarily be impugned by a verdict returned in favor of the plaintiff in the civil action. The Court recognized that in Heck when it wrote at 487, n.7 as follows: “... a suit for damages attributable to an allegedly unreasonable search may he even if the challenged search produced evidence that was introduced in a state criminal trial resulting in the § 1983 plaintiffs still-outstanding conviction. Because of doctrines like independent source and inevitable discovery, ... and especially harmless error, ... such a § 1983 action, even if successful, would not necessarily imply that the plaintiffs conviction was unlawful” (citation omitted). See also, Kelley v. Myler, 149 F.3d 641 (7th cir.1998) which is on all fours with this case; Booker v. Ward, 94 F.3d 1052, 1056 (7th Cir.1996), cert. denied. 519 U.S. 1113, 117 S.Ct. 952, 136 L.Ed.2d 840 (1997) (holding that a § 1983 unlawful arrest claim accrued on a day of arrest because “one can have a successful wrongful arrest claim and still have a perfectly valid conviction.”); Washington v. Summerville, 127 F.3d 552, 556 (7th Cir.1997), cert. denied — U.S. -, 118 S.Ct. 1515, 140 L.Ed.2d 668 (1998) (statute of limitations began to run when plaintiff “knew or should have known that his constitutional rights had been violated — the date of his arrest.”); Mackey v. Dickson, 47 F.3d 744, 746 (5th Cir.1995) (“It is well established that a claim of unlawful arrest, standing alone, does not necessarily implicate the validity of a criminal prosecution following the arrest.”); Copus v. City of Edgerton, 151 F.3d 646, 649 (7th Cir.1998) (“The point is that it is possible for an individual to be properly convicted though he is unlawfully arrested, or his home unlawfully searched. The remedy for those constitutional violations is a civil action under § 1983 for money damages.”) (emphasis added). It is only when the conviction and imprisonment are themselves constitutional wrongs, that Heck postpones the accrual of the claim until the conviction has been set aside. The point was made with exquisite clarity in Antonelli v. Foster, 104 F.3d 899, 901 (7th Cir.), cert. denied, — U.S. -, 118 S.Ct. 104, 139 L.Ed.2d 58 (1997) by Judge Posner as follows:

“We think it worth noting, to dispel any possible confusion, the difference between a suit premised as here on the invalidity of confinement pursuant to some legal process, whether a warrant, indictment, information, summons, parole revocation, conviction or other judgment, ... and a suit that complains of *127official misconduct unrelated to legal process — an unconstitutional arrest without a warrant, the gratuitous beating of the arrested person, .... In none of the [cited] cases in the second category official misconduct unrelated to legal process — is the unlawfulness of the plaintiffs being confined pursuant to legal process an implicit or explicit ingredient of his case. The principle of Heck is therefore inapplicable to those cases (as Heck itself makes clear, see 512 U.S. at 486-87, nn 6, 7, 114 S.Ct. 2364 ...).”

The § 1983 claim upon which Heck and the cases which apply it is premised upon the common law tort of malicious prosecution which, although often accompanying an action for false arrest is a distinctly different tort and the distinction between the two is often confused. See W. Keeton, D. Dobbs, R. Keeton, and D. Owen, Pros-ser and Keeton on Law of Torts 888 (5th ed.1984). The interest sought to be protected by this tort is the interest each of us has not to be sued or prosecuted unjustly. The elements of this tort are: (1) the commencement or continuance of a criminal proceeding, (2) without probable cause, (3) maliciously, (4) termination of the prosecution favorable to the plaintiff. See, e.g. DiBlasio v. The City of New York, 102 F.3d 654 (2d Cir.1996). Heck acknowledged the significant distinction between the torts of false arrest and malicious prosecution in 512 U.S. at 484, 114 S.Ct. 2364:

“The common-law cause of action for malicious prosecution provides the closes analogy to claims of the type considered here because, unlike the related cause of action for false arrest or imprisonment, it permits damages for confinement imposed pursuant to legal process. ‘If there is a false arrest claim, damages for that claim cover the time of detention up until issuance of process or arraignment, but no more.'' W. Keeton, D. Dobbs, R. Keeton, and D. Owen, Prosser and Keeton on Law of Torts 888 (5th ed.1984). But a successful malicious prosecution plaintiff may recover, in addition to general damages, ‘compensation for any arrest or imprisonment, including damages for discomfort or injury to his health, or loss of time and deprivation of the society.”’ (emphasis added)

It is precisely because an essential element that must be alleged and proved in an action for malicious prosecution is termination of the prior criminal proceeding favorable to the accused that the Court observed that “[w]e think the hoary principle that civil tort actions are not appropriate vehicles for challenging the validity of outstanding criminal judgments applies to § 1983 damages actions that necessarily require the plaintiff to prove the unlawfulness of his conviction or confinement, just as it has always applied to actions for malicious prosecution.” Heck, 512 U.S. at 486, 114 S.Ct. 2364.

The portions of the opinion upon which the majority relies and is set out at of their opinion are thus addressed to a § 1983 claim bottomed upon a claim for an allegedly unconstitutional conviction or imprisonment — a conviction or imprisonment pursuant to some legal process which must first be terminated favorable to the plaintiff. That requirement “precludes the possibility of the claimant succeeding in the tort action after having been convicted in the underlying criminal prosecution, in contravention of a strong judicial policy against the creation of two conflicting resolutions arising out of the same or identical transaction.... Furthermore, ‘to permit a convicted criminal defendant to proceed with a malicious prosecution claim would permit a collateral attack on the conviction through the vehicle of a civil suit’.” Id. at 484.114 S.Ct. 2364.

As has been stated above, the appeal before this court is from the dismissal of the false arrest claim for damages which was commenced long after the cause of action accrued and at a time when the criminal prosecution was no longer pending and was properly dismissed. Thus, the “plaintiffs action, even if successful, *128will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff [and] the action should be allowed to proceed, in the absence of some other bar to the suit.” Heck at 487, 114 S.Ct. 2364. The statute of limitations was correctly held by Judge Nickerson to be a bar to the suit for false arrest and his determination is entirely consistent with Heck v. Humphrey and should be affirmed. Cases such as Smith v. Holtz, 87 F.3d 108 (3d Cir.) cert. denied, 519 U.S. 1041, 117 S.Ct. 611, 136 L.Ed.2d 536 (1996) upon which the majority relies are cases in which plaintiff sought damages from his unlawful conviction and confinement — for malicious prosecution — and are therefore not applicable.

It is important to note that in cases such as Smith v. Holtz the damages sought are for an unlawful conviction and confinement, unlike this case, in which the plaintiff seeks damages for false arrest only. The validity of an outstanding criminal judgment may be implicated in cases such as Smith but not in this one for the reason that where damages are sought for conviction and confinement, the action is for malicious prosecution and not for false arrest. That distinction was clearly explicated in Heck, at 484, 114 S.Ct. 2364 thus:

“The common-law cause of action for malicious prosecution provides the closes analogy to claims of the type considered here because, unlike the related cause of action for false arrest or imprisonment, it permits damages for confinement imposed pursuant to legal process. ‘If there is a false arrest claim, damages for that claim cover the time of detention up until issuance of process or arraignment, but no morel.... But a successful malicious prosecution plaintiff may recover, in addition to general damages, ‘compensation for any arrest or imprisonment, including damages for discomfort or injury to his health, or loss of time and deprivation of the society.’ ” (emphasis added and citations omitted)

After acknowledging that “a wrongful arrest claim does not inevitably undermine a conviction because a plaintiff can wage a successful wrongful arrest claim and still have a perfectly valid conviction” Washington v. Summerville, supra. The majority observe that “Such a case might arise if there were independent evidence upon which a conviction could be obtained that was not in any way tainted by the unlawful arrest. In the present case, we are unable to determine whether success of Coving-ton’s false arrest claim would necessarily imply the invalidity of a possible conviction resulting from the criminal proceedings instituted against him based upon that arrest, as we have no information as to the nature of the evidence which might have been available against him in those proceedings. Accordingly, we remand the case to the district court to make this determination.” The remand would thus require the district court to ascertain whether, in order to obtain a conviction, the state would have to prove that Coving-ton’s arrest was valid.

The remand the majority would direct would place upon the district court an impossible and totally unrealistic burden. It would require that court to determine and assess the strength of all the evidence available to the state, to determine whether a motion to suppress evidence or statements based upon an alleged unlawful arrest or a claimed unreasonable search should be denied because any one or more of many exceptions would permit the evidence to be received, e.g., that the evidence seized was in plain view; would have been inevitably discovered; was obtained during an inventory search; was subject to a good faith exception; was seized under exigent circumstances; when the statement was made the interrogation was no longer custodial; or whether the state had evidence entirely independent of an arrest or search that would have been enough to obtain a conviction such as the testimony of an eye witness or informant. It is that *129to which the Supreme Court was referring in 512 U.S. at 484 n. 7, 114 S.Ct. 2364.

I would emphasize that the action pursuant to § 1983 predicated upon the alleged false arrest, commenced more than three years after that cause of action accrued, was plainly time-barred and for reasons already stated would not, in any event, have impugned a criminal conviction as a reading of the following observation in Heck teaches:

Thus, when a prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the validity of his conviction or sentence; if it would the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated. But if the district court determines that the plaintiff’s action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed even in the absence of some other bar to the suit, (emphasis mine)

The rationale for tolling the statute of limitations is to “avoid parallel litigation over the issues of probable cause and guilt ... and it precludes the possibility of the claimant [sic] succeeding in the tort action after having been convicted in the underlying criminal prosecution, in contravention of a strong judicial policy against the creation of two conflicting resolutions arising out of the same or identical transactions.” Heck at 484, 114 S.Ct. 2364. In this case there can be no possibility of creating two conflicting resolutions arising out of the same transaction, nor is there any possibility of “a collateral attack on a conviction through the vehicle of a civil suit.” Heck at 484, 512 U.S. 477. Clearly, the rationale of tolling the statute does not exist in this case.

Woods v. Candela, 47 F.3d 545 (2d Cir.1995) by which the majority believes itself to be bound does not require a reversal of the district court for the reason that the action there was for malicious prosecution. The per curiam opinion there correctly concludes: “Therefore, under Heck, Woods’s § 1983 cause of action for damages arising from Fourth and Fifth Amendment violations did not accrue before that date [the Appellate Division’s reversal of his conviction.]. Consequently, Woods’s suit was not barred by the statute of limitations.” The reversal of his conviction was a pre-requisite to his malicious prosecution claim because an element of that claim was favorable termination.2

It is also significant to note that Woods took particular note of the observation in Heck which I have already alluded to and regard as dispositive. In 47 F.3d at 546, the Court in Woods wrote:

In Heck, the Supreme Court held that “A § 1983 cause of action for damages attributable to an unconstitutional conviction of sentence does not accrue until the conviction or sentence has been invalidated.” Heck, 512 U.S. at 490, 114 S.Ct. at 2374. The Court exempted from this rule actions that “even if successful, *130would not necessarily imply that the plaintiff’s conviction was unlawful.” Id. at n. 7, 114 S.Ct. at 2372 n. 7 such as an action founded on an unlawful search whose illegality would not affect the validity of the conviction, (emphasis mine)

I emphasize “conviction or sentence” because those words manifestly relate to the malicious prosecution pre-requisite of favorable termination. I have already indicated that when Covington’s action was commenced there was no criminal conviction that would or ever would be invalidated.

For all of the foregoing reasons, I would affirm the decision of the district court.

. Houston v. Lack, 487 U.S. 266, 270, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988) teaches that a prisoner’s complaint is deemed filed on the date it is delivered to his jailer who, in effect, becomes the clerk of the district court. In this case, that date was June 2, 1994. The criminal charges against him were dismissed on June 10, 1991, and had that dismissal satisfied the favorable termination requirement of an action for malicious prosecution, his § 1983 action would have been timely. His cause of action for false arrest, however, accrued upon his arrest, February 17, 1990, and his § 1983 action bottomed upon that alleged wrong was time barred when he filed his complaint on June 2, 1994, which was more than three years after that cause of action accrued.

. On page 123 the majority write that “Woods later conceded that he had failed to state a cause of action for malicious prosecution, pursuing only his Fourth and Fifth Amendment claims for false arrest and the illegal search arising therefrom." The words that are underscored do not appear in Woods v. Candela, 13 F.3d at 575 nor do such words appear at 13 F.3d at 576.

Similarly the majority’s text at p. 123 that "Following the reasoning of Heck, we held that Woods's § 1983 claim (based on his false arrest) did not accrue prior to the reversal of his conviction” gratuitously add the words in parenthesis which are not to be found in Woods II, 47 F.3d 545.

The damages that would be available to Woods upon the favorable termination of his criminal case would include the damages sustained for his false arrest as Heck acknowledges at 512 U.S. at 484, 114 S.Ct. 2364, viz:

But a successful malicious prosecution plaintiff may recover, in addition to general damages, “compensation for any arrest or imprisonment ...(emphasis mine) That, I submit, is the reading that Woods II

supports.