Wallace v. Kato - Oral Argument

Argument of Kenneth N. Flaxman

Chief Justice Roberts: We'll hear argument--

next in Wallace versus Kato and Roy.

Mr. Flaxman.

Mr. Flaxman: Thank you, Mr. Chief Justice, and may it please the Court:

This case presents the Court with the question it addressed in Heck versus Humphrey raised in a slightly different context.

The context in Heck was of a prisoner whose conviction had been affirmed who was in prison, who had filed a civil rights case that would have had the practical effect of collaterally challenging his criminal conviction.

The context in this case is of a civil rights plaintiff who has prevailed in his criminal case, who was imprisoned for 8-1/2 years fighting the criminal case and comes to Federal court with a Section 1983 action saying, I now seek a remedy for my unconstitutional incarceration, and files his lawsuit.

The court in Heck held that this action, an action to recover damages for unconstitutional conviction or imprisonment, accrues when the conviction is set aside.

That's the principle that we asked the court of appeals to apply and the court of appeals said: We're not going to apply that because we will adopt a categorical rule without any implied exceptions whatsoever that says when you're arrested you have 2 years, which is the statute of limitations in 1983 cases in Illinois, to file your claim for damages.

Justice Ginsburg: Mr. Flaxman, one starting point.

You say that this case should be just like Heck, but in Heck the core problem was the line between 1983 and habeas, right?

Mr. Flaxman: Well, that was one view of the core problem.

Justice Ginsburg: But at least this case involves no such concern about habeas.

Mr. Flaxman: That's correct.

In Heck the Court solves the core problem by concluding... by denying the existence of a cause of action for damages until the criminal case had been resolved in favor of the civil rights claimant, which is the rule, the common law rule for malicious prosecution.

That's the solution that the Court came up with in Heck, which is the solution that the petitioner believes should be applied in this case.

Justice Scalia: But only if, only if the challenged evidence, the challenge to the evidence, if sustained, would necessarily... and this is the crucial language... invalidate the criminal conviction.

Mr. Flaxman: That's what would have happened in this case, as the dissenting judge in the petition for rehearing--

Justice Scalia: Would necessarily have?

You could have said that ex ante?

Mr. Flaxman: --Absolutely.

In criminal cases there's discovery and the criminal defendant knows what the prosecution--

Justice Scalia: You don't know what other evidence there might have been in the criminal case.

Ex ante you can't tell.

Mr. Flaxman: --You do know because it's disclosed in discovery.

We don't do trial by ambush any more in criminal cases.

The defendant knew that all the evidence against him was the alleged--

Chief Justice Roberts: Well, but he did not know that for years later.

I mean, they don't have to bring a prosecution immediately.

They can wait until the day before the statute of limitations runs.

Mr. Flaxman: --Well, there is no statute of limitations for murder in Illinois.

Chief Justice Roberts: Well, then they can wait a long time.

[Laughter]

Mr. Flaxman: If he's incarcerated that whole time awaiting the filing of charges, then his cause of action would not have accrued.

But the more likely scenario is that he would be arrested--

Justice Souter: Well, is that... I mean, your friend on the other side says that the cause of action would have accrued at the moment at which he was bound over by the decision of an independent magistrate.

At that point the false arrest and the incarceration incident to the false arrest is over and if there is ever going to be a claim for what happens next, I gather it'ss going to be a common law action for false imprisonment, and that, I guess, would not accrue until the imprisonment is over.

But so far as the arrest is concerned, whatever whatever wrong is done, that wrong is completed at the point at which an independent magistrate takes over.

Mr. Flaxman: --If the claim was solely directed at the arrest, then Your Honor would be absolutely correct.

The claim in this case, the cause of action, is not that he was taken off the street without probable cause.

The core of the cause of action is that the respondent police officers exploited that arrest to get this untruthful confession that was used to hold Mr. Wallace in custody for 8-1/2 years, to seize him for 8-1/2 years.

It's not just the arrest.

It's the arrest plus exploiting it.

Justice Souter: But all of that occurred, as I... correct me if I'm wrong on the facts, but I thought all of that occurred prior to... I don't know what they call it in Illinois, but prior to a bind-over hearing or prior to the point at which the judiciary steps in, breaking the, as it were, the chain of causation between what the police do and the subsequent incarceration.

Mr. Flaxman: Under Malley versus Briggs, it doesn't break the chain of causation if we adhere--

Justice Souter: No, but just as a factual matter is it correct... is it correct as a factual matter that the confession that was given was a confession that was given before there was any judicial intervention, before he was brought before a magistrate?

Mr. Flaxman: --That's correct.

Justice Souter: Okay.

Mr. Flaxman: There was no other evidence presented to the magistrate or that could have been presented to the magistrate other than the confession to show--

Justice Alito: Well, Mr. Flaxman, is your argument limited to that situation, where there is no evidence whatsoever against the criminal defendant other than the illegally seized evidence?

Or would it apply in some situations in which there is some additional evidence?

Mr. Flaxman: --If there's some additional evidence, we could not say was necessarily... would necessarily imply the invalidity of the conviction.

And would be... that's not our situation.

Justice Alito: Any additional evidence, even if it would be insufficient to support a conviction, takes... makes make this... would make this a different case.

Mr. Flaxman: I would not say... well, it would make it a different case.

But if I was arguing in a case where there was a little bit of evidence, but not enough to say there's probable cause to accuse him of a crime, I would say that suppressing or eliminating the confession would necessarily imply the invalidity of any conviction.

Justice Alito: What, what does necessarily mean?

Does it mean no additional evidence?

Does it mean no additional evidence that is insufficient to support a conviction?

Does it mean no additional evidence that would be likely to persuade a trier of fact?

Mr. Flaxman: What I think it means is that there's no conviction... what I think it should mean... and I'm not trying to debate the dictionary, what I think it should mean is that if there is no evidence other than after... that is excluded, to base a prosecution on, as in this case where the man is let go, because there is no evidence to prosecute him, that that does imply the invalidity of the conviction.

Justice Alito: Well, in this case, let me just me more question on it.

In this case, suppose there had been a witness who said at about the time when this murder took place, I saw somebody who was between, I would judge as between the age of 15 and 25, average height, average build, running away.

And let's say that your client fits that description.

Now would that be enough to take this case out of the rule that you're arguing for?

Mr. Flaxman: No.

Unless that witness could say and the man who I saw then is the defendant in this... is the criminal defendant, Mr. Wallace.

There was an eyewitness in this case.

And he could not make an in-court identification of Mr. Wallace.

And the prosecutor realized that that wasn't enough evidence on which to base a criminal prosecution, and gave up.

Justice Scalia: Again, you didn't, you didn't know that at the time the arrest was made, or at the time the confession was extorted, or at the time he was bound over.

You really didn't know that until the trial.

For all you knew, they might have found in addition to the confession, they might have found eyewitnesss who would have identified your client.

You couldn't tell that until the trial.

Mr. Flaxman: Well, that would have been very unfair if they withheld... they ambushed the defendant with--

Justice Alito: No, well... until the trial--

Justice Scalia: Until the trial, until the process of trial began.

Mr. Flaxman: --Well, we didn't know that because there weren't any, because this man didn't commit that crime.

We are talking... in the hypothetical, I think we should set, start with Mr. Wallace being an innocent man, who was arrested unlawfully, who gives an involuntarily... an involuntary false confession.

And on the basis of that is held for eight and a half years, finally wins the case, is set free, and then sues the--

Justice Kennedy: But, but you presume in your last answer that other than that, there is an absolutely fair prosecution.

Mr. Flaxman: --Other than the fact--

Justice Kennedy: I mean, why do we make that assumption when we start out with the allegation of a tort and a violation of the Constitution?

I don't understand.

Mr. Flaxman: --Well, the tort is against the police officers who made an unlawful arrest and exploited it to get the evidence that was used to hold Mr. Wallace.

The, the problem with saying that Mr. Wallace has to sue, as soon as he files his motion to suppress, he should have filed his Section 1983 action, would produce a multitude of 1983 actions.

Justice Kennedy: What about the fact... suppose that there were even a more serious battery here, a broken limb or something.

Would you have to sue for the damages for the battery right away?

The police officers injured--

Mr. Flaxman: No.

If excessive force was used against somebody when they're being arrested, that's a claim that everyone agrees accrues at the time of the injury.

Justice Kennedy: --Well, what about this case?

Mr. Flaxman: This case would necessarily impair the validity of the conviction.

If--

Justice Scalia: But the conviction in Heck existed at the time of the alleged tort.

And what Heck said is where you have an outstanding conviction, and you have a constitutional tort, you can't sue on that constitutional... and where... you cannot sue on that constitutional tort if the decision on the tort would effectively contradict your conviction.

Until the conviction has been set aside.

Well, this is not that situation.

There was no outstanding conviction involved.

So why did you have to wait?

Mr. Flaxman: --Well, you had to wait because it would... it would be a fruitless act to file the case while the case... file a Federal case while the state criminal case was pending.

But--

Justice Kennedy: I'm still, I'm still puzzled about my question.

Suppose there's a battery resulting in a serious injury to the defendant.

Mr. Flaxman: --That claim would--

Justice Kennedy: But there's other evidence and so forth.

Can you sue for the battery at once?

Mr. Flaxman: --You can sue and you have to sue for the battery immediately.

Justice Kennedy: Why is that the situation?

Mr. Flaxman: Why is that different?

Because this--

Justice Kennedy: And... or is it just because of the assumption that the conviction might stand anyway.

Mr. Flaxman: --Well the conviction generally does stand with... the battery generally has nothing to with the conviction.

Justice Kennedy: But if does, then you wait?

Mr. Flaxman: If it is an element of the offense, you wait.

Or if it is an element of what could be the defense in a criminal case.

But getting back to the Heck question, in Heck the court looked to the common law for the appropriate rule to apply to the cause of action that Mr. Heck was applying.

If we look to the common law for the appropriate rule for Mr. Wallace, we don't come up with the Seventh Circuit's rule of immediate accrual.

We come up with the rule--

Chief Justice Roberts: But the point, the whole point of Heck was to avoid 1983 becoming an end run around habeas.

But here you don't have that problem because you don't have any available relief under habeas under Stone versus Powell.

Mr. Flaxman: --Well, we don't know before the criminal case starts whether Mr. Wallace will receive a full and fair hearing on his Fourth Amendment claim.

And until we know that we don't say Stone versus Powell would bar a Fourth Amendment claim.

We don't know that the state will give Mr. Wallace an attorney who can stay awake, who can file a motion, who knows that there is a Fourth Amendment, and Mr. Wallace might end up not getting a full and fair hearing and might have a valid claim cognizable with Federal habeas corpus that--

Justice Kennedy: Are there many cases in which the rule of Stone versus Powell is inapplicable for that reason?

Mr. Flaxman: --No.

But there are some.

It is not a non-existent occurrence in.

Justice Breyer: What happens... I'm trying to think of what the problem is for you.

On January 1, your client's arrested unlawfully.

Now suppose the rule was you have two years to file it, starting now.

What is the problem for you?

The problem is maybe in a year, or maybe less, the police start to prosecute him.

In the meantime, your trial is going forward because you filed it on time.

So when they start to prosecute him, you don't yet know what's going to happen.

And it could happen that he's convicted and you think it's illegal because of the arrest and necessarily so.

And therefore you have to stop the trial, I guess, because of Heck.

Mr. Flaxman: The civil trial will be stayed pending the--

Justice Breyer: That would work, I guess.

They'd stop it and then they'd have to bring it... you'd have to stop it and then you'd have to go through these other remedies and they you'd have to go back to it.

Mr. Flaxman: --It would be on the district court's docket for ten years waiting the final--

Justice Breyer: But that would work.

Mr. Flaxman: --It would, well, it would be a horrible--

Justice Breyer: A mess.

Mr. Flaxman: --a horrible mess for the district court.

It would not work because--

Justice Breyer: Suppose I modify it.

Justice Souter: Why would it be a mess?

I mean, it seems to me that the district court, once it is filed... something is filed within the two year statute, the district court can tell virtually immediately whether there are criminal proceedings that are yet to be held, and the district court can simply, it can simply stay further proceedings until those criminal proceedings are over.

If there's a possibility of collateral attacks, the district court can simply say hey, are you going to file a collateral attack?

And if the answer is yes, stay it further.

If the answer is no, go ahead with it then.

What's tough about that?

Mr. Flaxman: --Well, the district judge will not allow a civil case to go forward because it would allow the criminal defendant--

Justice Souter: That's the premise of my question.

But I mean it seems to me to be fairly easily administered.

Mr. Flaxman: --Well, I mean, I, I shudder to think of 20,000 cases on district court dockets being stayed while criminal cases are being resolved.

Justice Souter: 20,000 might make me shudder.

But we got one.

[Laughter]

Mr. Flaxman: We have one.

The criminal defendant will be disinclined to file his civil rights case on time because it will be used against him in his criminal case to impeach his bias.

Justice Souter: Well... explain that.

Mr. Flaxman: It will impeach his bias.

If he, when he testifies in the criminal case, he will be cross-examined, aren't you seeking money damage from the police officers?

Don't you want to make money from this case?

And the jury will consider that when they weigh the truthfulness of the--

Justice Souter: And don't you think that a civil action which necessarily has to be stayed, might be a basis for, for the court in the criminal case to limit that kind of cross-examination?

Mr. Flaxman: --Not in the Circuit Court of Cook County.

That cross-examination will occur every time a civil--

Justice Souter: Are there appeals from the Circuit Court of Cook County?

Mr. Flaxman: --There are appeals and.

Justice Souter: Okay, don't you... don't you think ultimately you could get that issue resolved?

Mr. Flaxman: No.

I am absolutely confident the Illinois courts at the highest level will say that is proper cross-examination.

Justice Souter: Come... come back here.

[Laughter]

Justice Breyer: Suppose it is complicated.

I want to suggest a modification with this suit here.

You say you have to file within two years.

But wait, you have... we tolled the statute.

If the person is arrested and charged, and convicted, for all the time that is going on, it is just tolled, equitably.

And after the conviction, if he's acquitted, by the way, or he isn't arrested, the statute starts to run again.

Now if he's convicted, as long as you have filed, proceeding to challenge the conviction, it is tolled.

Now, would that... that it seems to me would help every problem you have, and it would be called equitable tolling.

And that's been suggested by judges in different forums and many states have it.

And what's the problem?

That just solves the problem, doesn't it?

Mr. Flaxman: Well, I have four answers.

I hope I can get them out.

If Heck instead of adopting a rule of accrual and denying existence of a cause of action had established the Federal tolling rule, saying that these causes of action are tolled while you're in custody, that would have solved the problem.

Justice Breyer: All right, well, we could do it in this case.

Mr. Flaxman: Well, I, I... the Court certainly can do it.

It would require carving a hole into, into Tomiano with this--

Chief Justice Roberts: Yeah, it would require overruling our cases that say for tolling, your borrow state law--

Justice Breyer: What cases require overruling?

Mr. Flaxman: --Unless state law is inconsistent with Federal Board of Regents versus Tomiano, I think the Court could say that.

The other thing that the Court should be aware of is that the Seventh Circuit, and I think four other circuits follow the common law rule that you can't have a 1983 action about a false arrest if you have been convicted of the charge on which you were arrested.

So these cases would not be brought in the Seventh Circuit and the--

Justice Breyer: Well, it seems to me identical to the rule you are advocating but with one difference.

The difference with the rule you are advocating is a judge who is going to be judge at time A with your first case, is going to have to guess whether it is in this case or not in this case necessarily related to some kind of challenge to conviction you're going to bring later if you happen to get convicted.

Mr. Flaxman: --I think--

Justice Breyer: There is no way to guess that.

Mr. Flaxman: --I think tolling, a Federal tolling rule for this cause of action, while someone in custody although a criminal conviction is, has not been resolved in favor of the defendant, criminal defendant, would be an excellent solution.

Justice Breyer: And is there anything that you are aware of that it would be contrary to?

I know there are cases that say you look to states but you only look to states where the state law is, in fact, consistent with the Federal right.

Mr. Flaxman: No, I think the Court could say without overruling anything that there, in this the state law does not fully reflect or protect the Federal rights at stake here.

Chief Justice Roberts: --So then you deny the officers the purpose you have for the reason you have statutes of limitation, which is repose.

They are going to wait ten years instead of the two years to find out if they are going to have to answer any claim for damages.

Mr. Flaxman: Well, but the officers will also get the benefit of not being sued if there is a conviction based on the charge for which the person was arrested.

That case would not be brought, especially in the Seventh Circuit where there is no cause of action... and it wouldn't be brought anywhere because there's no damages if you are arrested and properly convicted and serving sentence.

Those cases just are not going to exist; the officers would have that benefit.

Justice Ginsburg: I thought the Seventh Circuit said in... quickly in passing that the damages would run only from the time of the allegedly unlawful arrest until the time of arraignment.

That would, that would be the... be all of your damages.

If there wasn't an arraignment, whatever happens is not attributed to the seizure.

Mr. Flaxman: That's the Seventh Circuit's view about what the cause of action is, which goes back to what is the cause of action and when does it accrue?

In the Seventh Circuit the cause of action starts when you're arrested and... either at the time of arraignment of, as they said in a subsequent case, when there's a Gerstein probable cause hearing.

In I think every other circuit, the cause of action doesn't end at the time of arraignment.

It continues until the time that you're released from being in custody.

Justice Ginsburg: You asked us to take that case and we didn't.

Mr. Flaxman: Well, I asked you to consider damages but I think... as a question of damages, and there are many issues related to damages that would have been presented in question to--

Justice Ginsburg: But if that's the boundaries of the false arrest claim, then why does one happen later matter?

Mr. Flaxman: --Well, the common law false arrest claim would allow damages up until the time you were released from the imprisonment, which is not at the time of--

Justice Souter: Even on the basis of innocence?

Mr. Flaxman: --Not for a false arrest.

As long as you're not convicted.

So malicious prosecution, you would--

Justice Souter: The common law would give damages in a case like this in which the release was basically governed by a suppression which has nothing to do one way or the other with the innocence of that person?

Mr. Flaxman: --That's correct.

The common law element... malicious prosecution requires that the innocence or grounds not consistent with guilt, but there's no such element in the common law false imprisonment, which would accrue when you are released from being in prison, which would benefit Mr. Wallace in this case.

When the Seventh Circuit talked about there are three alternatives that we have to choose from, the proof immediately, the case by case of when it accrues, or it only accrues at the end of the case, they didn't consider the fourth possibility of the common law rule that it occurs when the imprisonment ends.

Justice Alito: --What does somebody like Mr. Wallace do under your rule if he's in a jurisdiction where there's not a lot of discovery in criminal cases.

He isn't going to know until trial whether his cause of action accrued sometime earlier or whether it waited.

Mr. Flaxman: But he's not going to file his civil rights claim until his criminal case is over, because he knows and his lawyer will tell him, that's going to hurt you in winning the criminal case, and you should be concerned about that.

Chief Justice Roberts: But he's never going to know, in the case where there's no statute of limitations, he's never going to know when his criminal case is going to be over because he may never know when it's going to start.

Mr. Flaxman: Well, if Mr. Wallace had been arrested and released, he would have had two years from when he was released to bring a civil rights action, that being false imprisonment--

Chief Justice Roberts: So what happens if he files a suit after one year and then after one year and 350 days he's prosecuted?

His action accrued but then it didn't accrue?

Mr. Flaxman: --Well, I would suggest that it would be the same as when someone is convicted of battery, and then 10 years later, the victim of the battery dies from the injury caused by the battery.

There would be a second prosecution for murder that would not be barred from double jeopardy.

I think that's Diaz versus United States.

I think--

Chief Justice Roberts: So his action accrued and maybe it's even over, but then it turns out when they bring the prosecution, it should have never have been brought because it never accrued.

Mr. Flaxman: --No, I think he would have two actions.

He'd have the action for being arrested and then he'd have the action later when the... when he was seized because of the unlawful... the fruits of the unlawful arrest.

As a practical matter, though, those cases are going to arise even less frequently than the Stone versus Powell cases that are brought properly in Federal habeas corpus.

Justice Breyer: That problem is solved too if you simply say bring it, day one, you are arrested, and if in fact before the statute of limitations expires, your client is brought to the court and is going to be prosecuted.

Tolled.

They don't need two actions.

Mr. Flaxman: A Federal tolling rule would solve these problems.

Justice Breyer: I want to be sure I understood your position with regard to Justice Kennedy's hypothetical where the defendant is arrested and excessive force is used by the police, they beat him up or something like that.

When does that cause of action accrue?

Mr. Flaxman: At the time they beat him up, unless the beating up relates to an element of the offense.

Justice Stevens: Suppose that they had beat him up two or three times.

The first time it didn't relate to it, but then they took him into the interrogation room and they beat him up again.

What about that case?

Mr. Flaxman: If the beating up is... if the beating up is related to, used to extort a confession and the confession is used against him, then there would be a cause of action when the confession is used.

Justice Stevens: So there would be two causes of action?

Mr. Flaxman: Multiple causes, yes.

There could be at least two.

Justice Scalia: Would he have to sue on the first one right away?

Mr. Flaxman: If you want to get damages for being beaten up, I would tell my client to sue right away.

I would also tell my client if he's being charged with a serious criminal crime offense, to wait until the criminal case is over, because it will hurt you.

Justice Scalia: Mr. Flaxman, before you save your time, I didn't understand why you're content with Justice Breyer's tolling situation, bearing in mind that the way he put it is, so long as the... as the criminal case is commenced within the two-year statute of limitations, how does that help you when the statute of limitations has passed?

Then there's no tolling.

Mr. Flaxman: But criminal cases are not commenced many, many years after the unlawful arrest, as a practical matter.

Justice Scalia: And two years doesn't seem to be unheard of.

Mr. Flaxman: Well, if we're talking about complicated financial crimes, that's not unusual.

Justice Scalia: You're willing to let those people go?

Mr. Flaxman: If we're talking about the kinds of crimes that are involved with this kind of, with street crime, with murder, armed robbery, rape, the defendant is not allowed to let them run over two years.

Justice Scalia: Those are the only defendants you are concerned about?

Mr. Flaxman: Those are the defendants who get unlawfully arrested and are forced to give confessions.

If I may reserve my time?

Argument of Benna Ruth Solomon

Chief Justice Roberts: Thank you, Mr. Flaxman.

Ms. Solomon.

Mr. Solomon: Thank you, Mr. Chief Justice, and may it please the Court:

Our submission this morning rests on the proposition that the victim of an unreasonable search or seizure has the right to sue as soon as that Fourth Amendment violation occurs.

For purposes of accrual of that claim, it does not matter whether the victim is subsequently prosecuted or whether he is subsequently convicted.

Accordingly, petitioner's Fourth Amendment claim accrued for purposes of the two-year statute of limitations as soon as his unlawful arrest and detention occurred, and his lawsuit filed some nine years later is time barred.

The claim accrued--

Justice Stevens: May I ask, just to get it straight at the beginning, what if the claim includes a Fifth Amendment claim for extorting a conviction and it's mixed up with a Fourth Amendment claim?

What about that claim?

Mr. Solomon: --I believe that the rule for the Fifth Amendment claim, I believe the Court's view in Chavez is that a coerced confession claim has as an element of the claim, the use of that claim at trial.

So it would be our view if that is an element of the claim, that that claim would not accrue until trial.

A claim--

Justice Kennedy: What about the beating of the defendant?

Mr. Solomon: --Exactly.

A claim for conscience shocking techniques to obtain the confession or the excessive force to obtain the confession, both of those claims, and use of the confession at trial is not an element of those claims, and those claims would accrue at the time of those acts, just like the Fourth Amendment rule that we urge in this case.

Only where there is a trial right and use of some evidence at trial, suppression of evidence at trial, something of that order, if the trial right is implicated, that claim would not accrue until at trial.

That is different from the Fourth Amendment claim, of course, because--

Justice Ginsburg: Miss Solomon, do I gather from your response to Justice Stevens about the Fifth Amendment claim, that under Chavez it wouldn't accrue until it is used at trial, is this case therefore a pleading slip on petitioner's part?

That is, if he had alleged a Fifth Amendment claim based on the coerced confession, then he wouldn't have a statute of limitations problem?

Mr. Solomon: --He brought two claims in his criminal case.

He lost them both in the Illinois Circuit Court at the time of his suppression motion.

He pursued only one of those on appeal to the Illinois Appellate Court, and the circuit court made findings that the confession was voluntary.

So at the outset, there were problems with that claim going into Federal court.

Justice Ginsburg: That's a puzzling feature of it, too, because I thought at the end the second time around, the Court of Appeals held that the confession was no good.

Mr. Solomon: The Illinois Appellate Court overturned the conviction on the basis that it was obtained through use of a confession in violation of the Fourth Amendment only.

The only findings that have ever been made regarding Mr. Wallace's confession, the voluntariness of the confession, were made in the Illinois Circuit Court, and the finding was that the confession was voluntary, that it was not coerced.

That finding has never been reviewed.

Petitioner did file both Fourth and Fifth Amendment claims in this civil case, but we did not assert statute of limitations to the Fifth Amendment claim for precisely the reasons that I indicated to Justice Stevens.

And for that reason, although the question was presented in the petition, we did not acquiesce in the Fifth Amendment portion of question 1 of the petition, and the court did not grant the Fifth Amendment claim.

So I do not believe... a short answer, sorry... I do not believe it was a pleading error.

It is simply that that claim as the litigation developed is not before this Court now, but not through a simple pleading error.

It is a far more weighty problem than that.

Justice Souter: But if the Fifth Amendment claim were before us, do I understand you to have said before that the Fourth Amendment claim of false arrest would also be subject to litigation as part of the Fifth Amendment claim or under the umbrella of the Fifth Amendment claim, so that the statute would not have run on that?

Mr. Solomon: I'm sorry.

If I indicated that, I definitely misspoke.

In our view, all Fourth Amendment claims except for those that do negate an element of the offense, and those are described in footnote 6 of Heck, with that exception, all Fourth Amendment claims should be regarded as accruing at the time that the act that actually violates the Fourth Amendment occurs.

Justice Kennedy: Well then, my question is going to be along the same lines.

Suppose... I assume this is a rather frequent case... the confession is alleged to be the product of a beating.

The two are merged.

If we have to wait for the Fifth Amendment claim anyway, then as a matter of policy, matter of convenience, why don't we wait for the Fourth Amendment as well?

Mr. Solomon: Because the rule of accrual is that the act... the claim accrues when the plaintiff experiences an injury.

Justice Kennedy: Well, we're making up the rule of accrual, Ms. Solomon.

I'm asking, if we have to wait for one, why not wait for the other?

Mr. Solomon: Well, with respect, Justice Kennedy, I don't believe the Court is making up a rule of accrual.

I think those rules are quite well settled.

Cases like Ricks and Chardon make clear, and the Fourth Amendment cases make clear that a Fourth Amendment violation, unlike the Fifth, where evidence is used at trial, the Fourth Amendment claim violation is fully accomplished at the time of the illegal search or seizure.

Anything--

Justice Scalia: Who is the defendant in a Fifth Amendment claim?

Is it the policemen who extracted the confession or is it the prosecutor who introduced it at trial, since that is the offense?

Mr. Solomon: --Well, the prosecutor would be absolutely immune, of course.

Justice Scalia: Right.

Mr. Solomon: And some of those cases are brought against the police officers.

But, the reasons that would suggest a certain accrual date for the Fifth Amendment claim are very different from the reasons that dictate the accrual of the Fourth Amendment claim at the time... the only action the petitioner alleges violated the Fourth Amendment in this case was when his detention at the police station, which was consensual at the outset, became unconsensual, became involuntary at some point before he confessed.

Justice Souter: But if he had also brought a Fifth Amendment claim, your view as I take it would be as follows:

Number one, his Fourth Amendment claim, the running of the statute, the Fourth Amendment claim would be unaffected by that, so that would have to have been brought within the two-year period.

Mr. Solomon: That's correct.

Justice Souter: Number two, I'm assuming, and this is what I want you to tell me whether my assumption is right... I am assuming that if a Fifth Amendment claim were brought by... no, strike the assumption.

You, I take it, would... let me ask a different question.

I take it you would agree that so long as a criminal case was pending, that it would be sensible and maybe required for the court simply to abstain from any proceedings on the Fourth Amendment claim.

Mr. Solomon: We do... our position is that they do occur when they happen and they must be filed within the limitations, yes.

Justice Souter: But you would agree that the court, if there's a criminal case going on, I take it you would agree that the court should not proceed to trial in the 1983 action.

Mr. Solomon: If there is a Fourth Amendment claim being raised in the criminal case, and of course, it might not be, but that is a very easy--

Justice Breyer: But that's the problem.

I don't know if it is easy.

It seems to me if you take your point of view, now, on January 1, some, let's call it an unconstitutional action allegedly.

So, I don't want to distinguish for the moment between Fourth and Fifth.

On January 1 the event occurs.

Then you say you have two years to file your claim in the Federal court of a violation of 1983, for example.

Then that happens.

Let's say two months later they file it.

The defendant files it.

A month after that, there is a state criminal proceeding.

Now, you're the Federal judge.

What's supposed to happen?

It sounds to me as if the judge sitting there, under your theory, is going to have to make a decision.

He's going to have to say now, is the kind of claim that's being argued in my court that the policemen did something unconstitutional, if I say that's correct, that the plaintiff wins, I have to go on to say does the correctness of that, there was a violation, mean that the conviction if there is a conviction in the state court later, will necessarily be vitiated.

If the answer to that question is yes, he shouldn't go ahead; is that right?

Mr. Solomon: --Justice Breyer, that is correct.

Justice Breyer: All right.

If that's correct, we're getting to exactly the same problem, whether we do it through a set of abstention rules, which we have to have Federal abstention rules or it won't be worked out properly, or we have to have Federal tolling rules.

I don't see any way to get to a sensible result here without either having clear abstention rules, just as you say, having clear tolling rules, as I suggested before.

Am I right?

If I'm wrong, let me know why; and if I'm right, which do you prefer?

Mr. Solomon: I think those are essentially the two choices, with one caveat.

We would call it an accrual rule as opposed to a tolling rule, for the reason that this court has always respected the tolling rules that states have whereas accrual is a Federal question.

But with that slight caveat, I do believe that those are the two main options.

But I don't believe the Court should be indifferent as between them.

There are very serious practical reasons weighing down on our rule, which is a rule of immediate accrual and filing not immediately, of course... the case need only be filed within the period of the statute of limitations.

Thereafter it might well be that some cases, maybe many cases, maybe nearly all cases, would need a stay of some sort while the Federal... excuse me... while the criminal case is ongoing.

But that question, figuring out whether a stay is warranted in order to avoid interference with a ongoing state prosecution, is far easier to figure out than whether the evidence is the only evidence, whether it's critical evidence, whether there was other evidence.

Justice Kennedy: I suppose... correct me if I'm wrong... when the district court wants to determine if he should hold something in abeyance, this is not necessarily abstention; this is what courts always do when there are multiple actions.

Other action pending is a general ground for a court to stay its hand.

Mr. Solomon: That's exactly right, Justice Kennedy, and it's also--

Chief Justice Roberts: I suppose it would make a difference to the officers, a principle of equitable tolling.

They don't know if they're going to be sued for 10 years, 12 years, however long.

Under an accrual rule with a stay, they know whether they're going to be facing a civil action or not.

Mr. Solomon: --That is the second major advantage that we see to our rule, Chief Justice Roberts.

Justice Breyer: If you do it with a stay, I mean, I see that disadvantage.

If you do it with a stay, the Federal judge is going to have to sit there with the papers in front of him, look at that evidence, think what's going to happen in the trial at the criminal case which I'm not quite certain yet, and then make a determination.

It sounds like a very difficult decision and it sounds like sometimes they'll get it wrong, sometimes they'll get it right.

The defendant might be arguing two different things, you know, one in the state court to try to get them to go ahead, and the other to try to get them to go ahead in the Federal court.

What do you--

Mr. Solomon: Accepting your earlier construct where there really are essentially two rules, we either delay accrual or we--

Justice Breyer: --If you delay accrual by tolling, you do have the disadvantage that in some instances the policemen won't know for quite a while whether the case is being brought.

That's true; and in the other instance, he won't know for quite a while how the case is going to come out, which may be worse.

But you don't have any uncertainty.

You have no uncertainty.

You would know once the man is released.

It's no tolling.

Once he's convicted, it's tolled.

Then the conviction comes in.

Not tolled until they bring a proceeding.

Mr. Solomon: --The rule that we propose, which is immediate accrual coupled with a stay of some sort if the Fourth Amendment claim is being actively litigated in the state court at that time, has two advantages.

The first is that it does serve the purposes that all statutes of limitations serve, which is it puts the defendant on notice you are now the defendant in a lawsuit, you should be marshalling your evidence, you should be preserving your records, and you are not in repose.

This Court has respected those as very important interests.

They are absolutely not served by a rule of delayed accrual.

At the same time, the rule to allow a stay where necessary... as I indicated, it's not going to be all of the cases, and it's far easier to figure it out.

The Federal district court figures it out by having the defendant, the criminal defendant, who is a plaintiff in his court, come in and is asked a question: Are you currently--

Chief Justice Roberts: They're not going to waste a lot of time figuring out whether to grant a stay or not when you have a criminal prosecution pending in state court.

I think in most cases... I mean, it's not like they're looking for cases.

They're going to say in most cases: Stay granted, come back when this is over.

They don't have to be... unlike perhaps the situation with an equitable tolling rule, it doesn't matter whether they're precisely right or wrong.

I mean, if it's close enough just stay it, and it doesn't seem to me there's much prejudice from that.

Mr. Solomon: --Well, that's correct, Your Honor, and we wouldn't have any objection to a rule that--

Justice Stevens: But isn't there this practical problem?

I think what you say fits together beautifully with regard to the law, but isn't it true that this will give an incentive in every criminal case for the defendant to file a 1983 action.

So we may multiply the number of Federal cases that are filed and then sit there while a criminal case proceeds.

Mr. Solomon: --I think the assumption, Your Honor, should be that the number of cases is going to be the same either way.

It's just a question of when are they filed and, moreover--

Justice Stevens: Well, if your opponent's rule is adopted, they wouldn't file unless... if they get convicted and the conviction stands up, the case would never be filed.

Mr. Solomon: --Well, it's curious that they make that argument, because of course every victim of a Fourth Amendment violation has the right to damages for at least the invasion of their privacy, for the antecedent conduct between the time of arrest and charging.

At a minimum, Mr. Wallace had that coming to him because he was, according to the Illinois appellate court, illegally seized.

Justice Stevens: The thing I just want you to comment on is, my thought is every person arrested has a potential, and something follows and so forth, has a potential Fourth Amendment claim, even though he may not have one on the merits.

It just seems to me that there's a potential here of an awful lot of what may turn out to be frivolous claims filed, but it would seem to be routine procedure for defense lawyers who want to make a suppression motion to say, well, I better file my 1983 case at the same time.

So you might get literally hundreds and hundreds of cases.

Mr. Solomon: With respect, Your Honor, we'll take that chance for the benefits that the statute of limitations does bring to the officer.

And as far as the burden on the court, whether all cases are stayed or some cases are stayed, of course, we're content to have this Court or the district court handling the case figure that out.

But the main point that I would make is that a rule of delayed accrual wholly undermines the purposes of the statute of limitations, and where the plaintiff's interest, the claimant's interests, can be served, as I indicated, at a minimum every victim of a Fourth Amendment violation has the right to some damages.

That is actually precisely why we say that Fourth Amendment claims do not necessarily imply the invalidity of the conviction.

Justice Kennedy: I had missed Mr. Flaxman's point that this would an advantage to the prosecutor to say, aren't you going to make a lot of money about this case?

My initial reaction as the defense counsel, I would love that comment.

I would tell the jury: Of course, it's our duty as counsel to point out that my client was beaten, he was terrified, he was beaten again, he had a false confession, and the damages we're not interested in; we'll get much more damages if you convict and we show this 15 years later because the policemen lied as they always do.

You know, you hear it.

Mr. Solomon: It may be not in a--

Justice Kennedy: But he has tried more of these cases than I have and he indicates this is a serious concern.

Mr. Solomon: --He has tried way more of them than I have as well, and I can't speak to that specifically.

It's not an argument that was ever made in the briefs.

But again, I have no reason to believe that the Federal district court can't take account of whatever it needs to take account of in order to avoid--

Justice Kennedy: No, no.

This is the Cook County.

This is the Cook County court.

Mr. Solomon: --Yes.

Yes, I understand.

But all that has to happen, of course, is that the complaint be put on file in the Federal court.

It's notice pleading.

It can be a very, very long complaint.

Justice Kennedy: No, but he says the fact of the complaint the prosecutor's going to use in order to show that they're trying to profit from a false claim of a beating.

Mr. Solomon: Well, but as I indicated, every victim of a Fourth Amendment rights, even those who are guilty, even those who are convicted... that's the Herring case.

Herring exactly shows--

Justice Kennedy: No, but the point is if the complaint is filed then the prosecution can makes that point.

Mr. Solomon: --I would imagine that it would cut both ways in many cases, Your Honor.

I'm sorry, I can't speak to it more specifically than that.

Justice Ginsburg: Does your position in this case leave any reason at all for equitable tolling?

Mr. Solomon: It does, Your Honor, absolutely.

Equitable tolling is always available in an extraordinary case when the plaintiff could not put a complaint on file within the period of the statute of limitations.

And unlike the accrual question, as indicated a moment ago, the tolling is governed by the states.

In this case, for example, because Mr. Wallace was only 15 years old at the time of the arrest, his claim was tolled.

He actually had nearly four years beyond the two-year statute of limitations to put a complaint on file and it still would have been toll... would have been timely.

He filed outside even that time.

Illinois does not toll for prisoners, but many states do, as the Court indicated in the Hardin case.

So there's all sorts of tolling available, or could be under state law.

Mr. Wallace has actually never urged tolling in this case and I assume that that's because there is no basis for that under state law.

He did get the advantage already of the time when he was a minor and there is no other basis under Illinois law that would allow him any basis for tolling.

But of course, tolling is proper when the plaintiff does not know and could not know that his rights were violated.

If Mr. Wallace was illegally seized, he was right there when it happened.

He might not have known that a court would ultimately accept his argument on that, but of course the plaintiff never has a right to be told that he has a successful claim before he brings that claim.

Justice Ginsburg: Is there any remedy that Illinois law provides for a case like this where a person spends, what was it, eight years in prison and is ultimately released because the state never had enough evidence to try him in the first place?

Mr. Solomon: In many cases, the state law of malicious prosecution will provide a remedy.

Of course, in Illinois and in all states, it requires favorable termination.

In this case, of course, petitioner conceded long ago that he cannot show favorable termination because the circumstances under which the criminal case ended did not... were not consistent with a favorable termination.

But, of course, he would have had a Fourth Amendment claim if he had filed it timely.

He would have had a state law malicious prosecution claim if he had been able to show favorable termination.

In states that don't have malicious prosecution, perhaps there would be a due process claim as well.

The result that there are no damages available to somebody when the conviction is overturned solely by operation of the exclusionary rule, however, should not be troubling because the conviction itself, of course, was not an independent violation of the Constitution.

Petitioner did receive the benefit of the exclusionary rule.

His conviction was overturned.

We're not aware of any case indicating that deterrence purposes would require both the exclusion of evidence and a damages claim.

Justice Kennedy: Would it ever be proper for a district court to insist on proceeding to the merits of the claim, to dispose of the merits of the claim, while the prosecution was pending?

Suppose the district court thought that it was seeing too many of these claims and it wanted to get to the bottom of them?

Mr. Solomon: Well, in our experience the district courts don't tend to want to go ahead.

But I would suppose that if the... if the court did, rules of comity are sufficient to allow the state courts to have the first crack at issues that are arising in the criminal cases, to be the ones that--

Justice Kennedy: We haven't written about that other than in Heck explicitly and implicitly, and in Younger?

That's about it?

Mr. Solomon: --In Heck and in Younger.

There's the concurrence in Deacons against Monahan indicates that a claim for damages should be stayed and not dismissed or gone forward with.

Justice White's concurrence specifically addressed the difference between dismissing and going forward with the claim.

Of course, the footnotes 8 and 9 in the Heck opinion are very powerful indications of the weighty reasons.

We have no reason to think that the district court would want to charge ahead with a claim that would... with a case that will only get simpler if it waits for the state court proceedings to conclude, as well as of course the comity and respect for the state courts.

In this case, of course, as I mentioned, the... Mr. Wallace always had a claim available to him for his initial seizure regardless of the outcome of his criminal prosecution.

If he wanted to seek damages for that prosecution and our primary submission, part one of our brief is even assuming those damage might be available on a Fourth Amendment claim, he was nevertheless obligated to bring that claim within the period of the statute of limitations, because otherwise it would be time barred.

In our view, petitioner does not have one claim for that arrest and another claim for his trial and prosecution.

He has one claim for a Fourth Amendment violation with two elements of damages.

But mounting future or delayed damages do not delay accrual.

Even where the plaintiff does not know the full extent of his injuries, he still must sue within the period of the statute of limitations.

In fact, petitioner does not cite a single case including the ones newly arrived in the reply brief that uses either his accrual rule or his damages rule to award damages for the entire time of a lengthy period of incarceration.

And as I indicated petitioner conceded long ago that he cannot show favorable termination.

And although he could have obtained some damages had he brought his claim timely, his claim did accrue he was seized and not when the charges--

Justice Ginsburg: Do you agree with Judge Wood that the limitation on damages would be from the period, from the time of the arrest until the arraignment?

That would be the measure and nothing after?

Mr. Solomon: --A number of courts have reached that result, Your Honor.

Footnote 25 recites five court of appeals decisions to that effect.

But our primary submission in this Court is that regardless of the damages that are available on a Fourth Amendment claim, that the mounting of damages did not delay accrual, and without a timely claim, it doesn't matter what damages the plaintiff is seeking.

The reference in Heck to a claim for damages for unconstitutional conviction, we take to be a shorthand for a claim of some sort of constitutional violation that can be brought through the vehicle of Section 1983 that would enable the plaintiff to recover damages for the incarceration.

1983 of course itself does not create any substantive rights.

The plaintiff needs an underlying claim and in this case of course the plaintiff only has the Fourth Amendment claim.

We do have, in our brief and argument why the Fourth Amendment should not be regarded as allowing those damages, but our primary submission and we do think the Court can decide the case without... without reaching that issue.

The only date to delay an accrual in this case was the date that the charges were nol prossed.

But that date is meaningless for the Fourth Amendment and it is therefore meaningless for accrual.

We would the judgment be affirmed.

Rebuttal of Kenneth N. Flaxman

Chief Justice Roberts: Thank you, Ms. Solomon.

Mr. Flaxman, you have four minutes remaining.

Mr. Flaxman: The issue that has been sitting in this case like the elephant in the room is what is Mr. Wallace's cause of action?

Is it a cause of action for being seized until he was arraigned?

Or is it a cause of action for being seized for the eight and a half years that he was locked up until he was, the criminal case was resolved in his favor?

My sister argues that it was just, the Federal remedy is only until you're being arraigned, and that the state remedy for malicious prosecution doesn't exist if the Seventh Circuit has construed Illinois law to say that there is no malicious prosecution when you win the Federal case, when you win the criminal case, because the evidence has been suppressed.

The false imprisonment, state false imprisonment was dismissed by the district court, under his reading of Illinois law that the cause of action accrued at the time of the arrest.

Not at the time he was released.

And the Seventh Circuit when that issue was raised on appeal to them in a brief by both sides chose to reject it without discussion.

What, the cause of action that respondent proposes is none, for the eight and a half year seizure.

There is no state cause of action in Illinois.

And there is no Federal cause of action.

It is just tough.

You are seized for eight and a half years, and you can't go to state court, you can't go to Federal court.

You should have sued immediately after you were arrested to get a little bit of damages, but that's all you can get.

And have a nice day; we're sorry.

That, I don't think is consistent with Heck.

I don't think it is consistent with this Court's jurisprudence about the meaning of Section 1983.

I don't think it is consistent with the Fourth Amendment and it should not be the rule that the Court adopts.

The statute of limitations problem isn't really a problem because all of the evidence that's material to the legality of the arrest, to the legality and the... whether the confession was the proximate... was proximately caused by the arrest or proximately caused by the incarceration, has been developed in the criminal case.

When there's very strong interest in seeing that the facts are fully determined and fairly determined for both sides.

It is not that the police officer who sued eight... eight and a half years later is much less is much less prejudiced than Mr. Wallace is, who comes out of prison after eight and a half years with no remedy.

The questions about the multiple causes of action that can arise: if you're beaten, you have to sue immediately after you're beaten; if you're beaten but a confession is extorted from you, your right to sue starts with the confession is used against you at trial... and if there's some constitutional violation which necessarily impairs the conviction, then you can sue after you successfully defended a criminal case... is really an administrative nightmare that really could be solved by a Federal tolling rule that all Section 1983 cases are tolled; the statute does not start to run until the criminal case has been resolved.

In most cases, then, instead of being filed in district court--

Justice Kennedy: That in effect is saying we can't have a statute of limitations rule; we're just going to laches, we're just going to an equitable rule.

Mr. Flaxman: --Well--

Justice Kennedy: We're just throwing up our hands and saying there is statute of limitations statute of limitations.

Mr. Flaxman: --No, there is a statute of limitations.

It starts to run when the criminal case is over.

That will weed out all of the really nonsensical cases that would otherwise be filed under respondent's rule, when you file the 1983 action the same day you file the motion to suppress and the district judge says well, this goes on my state calendar of 5,000 cases and the clerk's office is troubled with collecting the $350 filing fee in installments, and the jails are troubled by paying those installments every time there's $10 in the prisoner's account.

It's... it would... there are more important things for the courts, the prisons to do.

Thank you.

Chief Justice Roberts: Thank you, Counsel.

The case is submitted.