Bielanski, Lorri v. County of Kane ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 07-1928
L ORRI B IELANSKI,
Plaintiff-Appellant,
v.
C OUNTY OF K ANE, Illinois,
K ANE C OUNTY C HILD A DVOCACY
C ENTER, K ANE C OUNTY C HILD
A DVOCACY A DVISORY B OARD , et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 05 C 7291—James B. Zagel, Judge.
A RGUED A PRIL 4, 2008—D ECIDED D ECEMBER 18, 2008
Before P OSNER, K ANNE and R OVNER, Circuit Judges.
R OVNER, Circuit Judge. Lorri Bielanski, at the age of
fifteen, was falsely accused of sexually abusing a six-year-
old neighbor. Eventually acquitted of all charges, she
sued a number of public officials and entities for vio-
lating her constitutional rights during the investigation
2 No. 07-1928
and prosecution of the alleged crime. The district court
dismissed her complaint in its entirety. We affirm.
I.
On review of this dismissal under Federal Rule of
Civil Procedure 12(b)(6), we accept as true all well-pleaded
facts, and, drawing all inferences in favor of Bielanski,
we review de novo whether the complaint states a claim
for which relief can be granted. Chicago Dist. Council of
Carpenters Welfare Fund v. Caremark, Inc., 474 F.3d 463, 471
(7th Cir. 2007); Baker v. Kingsley, 387 F.3d 649, 660 (7th
Cir. 2004); Marshall-Mosby v. Corporate Receivables, Inc., 205
F.3d 323, 326 (7th Cir. 2000). Our recitation of the facts
comes, therefore, from Bielanski’s Second Amended
Complaint. We begin by identifying the defendants. The
Kane County Child Advocacy Center (“Center”) and the
Kane County Child Advocacy Advisory Board (“Board”)
are both legislatively created entities. See 55 ILCS 80/3,
80/4. The Center was created to coordinate the investiga-
tion, prosecution, and treatment referral of child sexual
abuse. The Center is staffed by prosecutors, police investi-
gators, investigators from the Illinois Department of
Children and Family Services (“DCFS”), and case manag-
ers. The Board is composed of various government
officials from Kane County, including representatives
of the mental health department, the sheriff’s office, the
states attorney’s office, and DCFS. The Board is
responsible for drafting policies and procedures for
investigating and prosecuting persons accused of child
sexual abuse. In addition to suing the Center and the
Board, Bielanski also sued the County of Kane, and two
No. 07-1928 3
persons, both individually and in their official capacities.
Kathryn Byrne was a DCFS child protection investigator
assigned to the Center, and David Berg was a police
officer assigned to both the County of Kane and the
Center. Byrne and Berg were both trained at the Child
Advocacy National Training Program (“CANTP”) in
techniques for interviewing the child victims of sexual
abuse.
On August 17, 2001, Byrne and Berg interviewed a six-
year-old boy named “Brent” and his parents about an
allegation that he had been sexually abused. Brent told
Byrne and Berg that someone named Lorri had
sexually abused him. The spelling of Lorri’s name was
provided by the adults involved in the case, interpreting
the child’s phonetic expression of the name. The inter-
view lasted less than an hour and failed to conform to
the forensic protocol taught at CANTP. The two investiga-
tors failed to video- or audiotape the interview. They
failed to assess Brent’s competency to testify, and they
neglected to evaluate the accuracy of his memory. They
did not assess whether he had fabricated the allegations
or had been coached. They did not conduct a develop-
mental assessment of Brent, did not investigate whether
he had been previously interviewed (and if so, how many
times), did not pursue any other possible explanations
for the allegations, and did not speak to any other signifi-
cant individuals in Brent’s life. They did not evaluate
the extent of his diagnosis of Attention Deficit Hyper-
activity Disorder (“ADHD”) or how that diagnosis
might affect his testimony, and they did not explore his
motives. They interviewed the parents prior to inter-
viewing the child, contrary to accepted forensic practice.
4 No. 07-1928
They did not employ any accepted procedure to
identify the perpetrator of the alleged sexual abuse, such
as photographs or drawings. They did not ask Brent to
describe the physical features of the person who
assaulted him.
Between August 17 and November 16, 2001, Byrne and
Berg discovered that, prior to the interview, Brent was
taking medication for ADHD and had been assigned to
a special education class. They learned that he was a
difficult child for his parents to control and discipline. In
the summer of 2001, Brent had attended a day camp where
he removed his clothing and attempted to remove the
clothing of other children. In July of that same summer,
a relative had complained to Brent’s parents that Brent
had attempted to force his cousins to undress in the back
yard of Brent’s home. In the weeks before the August 17
interview, Brent’s parents angrily confronted him about
the day camp and back yard incidents, and punished
him and questioned him extensively about the incidents.
During their questioning, Brent’s parents suggested to
him that perhaps someone had sexually abused him.
Although Byrne and Berg knew all of this information, they
made none of it available to Bielanski even though it was
material to the validity and reliability of Brent’s charge
against Lorri at the August 17 interview.
Only six days after the interview, on August 23, 2001,
Bielanski received notification from DCFS that credible
evidence existed that she had committed acts of sexual
penetration and sexual molestation upon Brent. DCFS
labeled her the “indicated perpetrator.” On November 16,
2001, the Kane County State’s Attorney filed a Petition
No. 07-1928 5
for Adjudication of Wardship (“Petition”), alleging that
Bielanski committed the Class X felony of aggravated
criminal sexual assault and the Class 2 felony of aggra-
vated criminal sexual abuse by committing an act of
fellatio upon Brent and by placing her sexual organ on
the sexual organ of Brent for the purpose of sexual gratifi-
cation or arousal of the victim or the accused. As a result
of the Petition, Bielanski was compelled to attend numer-
ous court hearings, ordered to submit to an interview by
a probation officer, and placed on pretrial restrictions
which limited her freedom.
The matter came to trial in early 2003. During the prose-
cution’s case-in-chief, Brent could not identify Bielanski
in court, even after the judge directed Brent to look at
Bielanski and asked him if he knew who she was. The
court granted a defense motion for a directed finding of
“not guilty.” Bielanski then asked DCFS to expunge the
charges against her from the agency’s records. After a
hearing before an administrative law judge, the director
of DCFS ordered that the record be expunged. Bielanski
maintained her innocence throughout the proceedings
and her parents expended considerable resources re-
taining counsel and hiring investigators and a forensic
expert to defend her.1
Bielanski filed a three-count complaint under 42 U.S.C.
§ 1983 (hereafter “Section 1983"), against the Center, the
1
Bielanski’s parents are not named as plaintiffs and therefore
the amounts they expended defending their daughter may not
be recovered in this suit.
6 No. 07-1928
Board, the County of Kane, Byrne, and Berg. Count I
alleged that the defendants violated Bielanski’s rights
under the Fourth Amendment by compelling her to
attend numerous court hearings and restricting her
freedom when there was no probable cause to charge
her with two felonies. Count I sought damages against
all of the defendants. Count II asserted that Byrne and
Berg (acting individually and in their official capacities)
violated Bielanski’s right to a fair trial and due process
when they withheld exculpatory evidence from DCFS,
the court, the prosecutors, and defense counsel. According
to the complaint, this withholding of information caused
the criminal prosecution of Bielanski, prolonged the
proceedings, and deprived her of a fair trial. Count II
sought damages against Byrne and Berg individually
and in their official capacities. Count III maintained that,
because of their inadequate policies, customs and prac-
tices, the County, the Center, and the Board enabled Byrne
and Berg to violate Bielanski’s rights. The complaint
faulted the County, the Board, and the Center for failing
to instruct, supervise, control, and discipline Byrne and
Berg, and sought damages against all three of the institu-
tional defendants.
The district court granted the defendants’ motion to
dismiss under Federal Rule of Civil Procedure 12(b)(6).
In addition to the facts alleged in the complaint, the
district court assumed that the only person in Brent’s
world named “Lorri” was his neighbor, Lorri Bielanski.
The court noted that much of the complaint chastised
the agencies for not adopting a particular protocol for
investigating child abuse cases. The court found that the
No. 07-1928 7
Constitution does not require the agencies to adopt some
particular protocol, and that the violation of a local policy
is not enough to make out a constitutional claim. Rather,
those violations might be compensable under state law.
The court also remarked that, to the extent Bielanski
sought damages for the amounts expended by her parents
in her defense, there could be no recovery because her
parents were not parties to the suit. What remained,
according to the district court, was a claim for an illegal
seizure without probable cause, a claim under Brady for
failing to disclose exculpatory information, and a Monell
claim dependent upon a finding that any constitutional
violations by Byrne and Berg were caused by a failure
of the agencies to properly train or supervise these em-
ployees. See Brady v. Maryland, 373 U.S. 83 (1963); Monell
v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658(1978). The court concluded that a summons does not
amount to an arrest, and that even if it did, Byrne and
Berg would be entitled to qualified immunity on the
illegal seizure claim. The court dismissed the Brady claim
because it was “extinguished” by Bielanski’s acquittal. That
is, in order to make out a Brady claim, there must be a
reasonable probability that the withheld evidence
would have affected the outcome of the proceedings if
Bielanski had known it before trial. Because Bielanski
was acquitted, the revelation of the withheld information
would not have changed the outcome. The court also
found that, in most acquittals, a plaintiff will be unable to
show damages unless the information would have de-
stroyed the prosecution’s case. The information withheld
here, the court explained, would not have destroyed the
8 No. 07-1928
prosecution’s case. The court also posited that the defen-
dants would have been entitled to qualified immunity
on the Brady claim. Because the claims against the individ-
ual defendants could not survive, the court also dis-
missed the Monell claim. Bielanski appeals.
II.
On appeal, Bielanski contends that the district court
erred when it construed the facts in favor of the
defendants and inferred that there was only one person
named “Lorri” in Brent’s world. 2 She also argues that,
under the “objectively reasonable” standard of the Fourth
Amendment, she was seized without probable cause.
Finally, she maintains that her acquittal did not render
moot her claim that she was denied her due process
right to a fair trial when the defendants withheld evid-
2
We agree with Bielanski that the district court inappro-
priately construed the facts in favor of the defendants when it
assumed that Bielanski was the only person named “Lorri” in
Brent’s world. On a motion to dismiss for failure to state a
claim, we must construe the well-pleaded facts in favor of the
plaintiff. See Caremark, 474 F.3d at 471. Bielanski alleged that the
defendants failed to pursue alternative hypotheses and failed
to gather information regarding significant individuals in
Brent’s life. The court should have construed this to mean
that the defendants failed to investigate whether there was
another person named “Lorri” (including alternate spellings
of the child’s phonetic representation of that name) in Brent’s
life. This error, however, does not affect the outcome of the
case, and so we will not address it further.
No. 07-1928 9
ence that was exculpatory and could have been used
for impeachment purposes. The court dismissed
Bielanski’s complaint under Rule 12(b)(6) for failure to
state a claim, and our review is therefore de novo. Minch v.
City of Chicago, 486 F.3d 294, 300 (7th Cir. 2007).
A.
We begin with Bielanski’s claim under Section 1983 that
she was improperly seized without probable cause, in
violation of the Fourth Amendment. In her complaint,
she explains:
Plaintiff was compelled by process to attend num-
erous court hearings, ordered to be interviewed by a
probation officer, and was placed on pretrial restric-
tions which limited her freedom.
Second Amended Complaint (Complaint”), at ¶ 18(C). She
did not describe in the Complaint the nature of the
pretrial restrictions. In the district court, in response to the
defendants’ motion to dismiss, she explained that the
“seizure” was the initiation of the prosecution, effected by
a summons issued by the prosecutor, without probable
cause. She did not name any other pre-trial restrictions
in response to the motion to dismiss. On appeal, she
adds that the pretrial restrictions consisted of an order not
to leave Illinois without the permission of the court. She
also explains on appeal that the interview with the proba-
tion officer was part of the seizure. Although she did not
argue these latter two points in the district court, the
defendants have not claimed waiver and have answered
10 No. 07-1928
those additional points in their briefs and at oral argument.
On appeal, Bielanski concedes she was not arrested in
the traditional sense of the word but instead was com-
pelled by a summons to appear in court. She also asserts
that, under the statute creating the Board and the Center,
the investigative functions of the police department were
merged with the prosecutorial functions of the state’s
attorney’s office, which made the charging decision.
Because of this merging of functions, she argues that it
is not fatal to her claim that the prosecutor who caused
the summons to be issued is not named as a defendant
here.
In order to make out a claim under Section 1983 for an
unreasonable seizure in violation of the Fourth Amend-
ment, a plaintiff must allege, of course, that the defen-
dants’ conduct constituted a seizure, and that the seizure
was unreasonable. Belcher v. Norton, 497 F.3d 742, 747 (7th
Cir. 2007). We need not consider whether the seizure here
was reasonable because our analysis begins and ends with
the first component of this formulation: Bielanski was not
seized as that term is understood in Fourth Amendment
analysis. A seizure of a person is generally defined in terms
of an intentional limitation of a person’s freedom of
movement. See County of Sacramento v. Lewis, 523 U.S. 833,
843-44 (1998) (a Fourth Amendment seizure occurs when
there is governmental termination of freedom of movement
by means intentionally applied); California v. Hodari D., 499
U.S. 621, 625-26 (1991) (a seizure of the person may be
achieved by the mere grasping or application of physical
force with lawful authority, whether or not it succeeded in
subduing the person arrested; or, in the absence of
No. 07-1928 11
physical force, by submission to a show of authority);
Belcher, 497 F.3d at 748 (a person is seized for Fourth
Amendment purposes when, from all of the circumstances
surrounding the incident, a reasonable person in the
situation would believe he or she was not free to leave;
to demonstrate seizure, individuals must show that they
were touched by the police or that they yielded to a
show of authority, and the governmental termination of
freedom of movement must be intentional).
Bielanski argues that, under Albright v. Oliver, 510 U.S.
266 (1994), a claim for arrest without probable cause
must be analyzed under Fourth Amendment jurispru-
dence. We have no quarrel with that general proposition,
but Bielanski concedes she was not arrested as that term
is commonly understood. Rather, she contends that,
because of the unique way the Center operates (by combin-
ing police and prosecutorial functions into one organiza-
tion), the conduct of the Center in charging her and
causing a summons to be issued violated her right to be
free of arrest without probable cause. She explains that
the Board and the Center blurred the arrest role and the
prosecution role to such a degree that, for Fourth Amend-
ment purposes, arrest and prosecution are one and
the same in her case. All of this begs the question of
whether she was “seized” for Fourth Amendment pur-
poses, that is, whether there was an intentional govern-
mental termination of her freedom of movement.
Bielanski relies on Justice Ginsburg’s concurrence in
Albright for the proposition that a person who is
obligated to appear for trial is “seized” for trial “when the
12 No. 07-1928
state employs the less strong-arm means of a summons
in lieu of arrest to secure his presence in court.” Albright,
510 U.S. at 279. Justice Ginsburg raised this issue in
the context of a defendant who had been arrested and
then released pre-trial, explaining that such a person “is
scarcely at liberty; he remains apprehended, arrested in
his movements, indeed ‘seized’ for trial, so long as he is
bound to appear in court and answer the state’s charges.”
510 U.S. at 279. Justice Ginsburg urged the Court to adopt
this concept of a continuing seizure to hold a police
officer liable for the harm suffered by the defendant not
only when he was arrested without probable cause, but
when he was hailed into court because the officer then
gave misleading testimony at the preliminary hearing. That
testimony, Justice Ginsburg remarked, maintained and
reinforced the unlawful hailing of the defendant into
court, in her view perpetuating a Fourth Amendment
violation past the initial seizure. Id.No other Supreme Court justice has adopted Justice
Ginsburg’s analysis, and we have repeatedly rejected the
concept of a continuing seizure in the Fourth Amendment
context. See Wallace v. City of Chicago, 440 F.3d 421, 429 (7th
Cir. 2006) (declining to recognize a stand-alone false
confession claim based on a continuing Fourth Amend-
ment violation theory); Wiley v. City of Chicago, 361 F.3d
994, 998 (7th Cir. 2004) (rejecting a claim for wrongful
prosecution under a Fourth Amendment continuing
seizure approach). We repeated in Wallace and Wiley
our well-settled rule that “the interest in not being prose-
cuted groundlessly is not an interest that the Fourth
Amendment protects.” Wallace, 440 F.3d at 425; Wiley, 361
No. 07-1928 13
F.3d at 998 (both citing Gauger v. Hendle, 349 F.3d 354, 361
(7th Cir. 2003), overruled in part by Wallace v. City of Chicago,
440 F.3d 421 (7th Cir. 2006)). Yet a claim for prosecution
without probable cause is exactly the type of claim that
Bielanski presses. Typically, the scope of a Fourth Amend-
ment claim is limited up to the point of arraignment,
at which point the prosecution is underway. Wallace, 440
F.3d at 425; Wiley, 361 F.3d at 998. If the prosecution is
then deemed malicious, it “is not a constitutional tort
unless the state provides no remedy for malicious prosecu-
tion.” Wiley, 361 F.3d at 998 (quoting Gauger, 349 F.3d at
359). As Bielanski’s counsel conceded at oral argument,
Illinois provides a remedy for malicious prosecution
and the plaintiff chose not to bring such a claim.
Bielanski urges us to find, nonetheless, that the summons
requiring her to appear in court, an interview with a
probation officer, and a court order requiring her to seek
the permission of the court before leaving the state
amounted to a seizure under the Fourth Amendment.
Before the Supreme Court decided Albright, we ex-
pressed doubt that a requirement to appear in court is a
sufficient deprivation of liberty to warrant the elevation
of malicious prosecution to a constitutional tort. Mahoney
v. Kesery, 976 F.2d 1054, 1060 (7th Cir. 1992). We noted
that a court appearance is “less dramatic, less traumatic,
than being arrested, or booked, the first usually involving
being searched and handcuffed, the second being searched,
fingerprinted, and photographed.” Mahoney, 976 F.2d
at 1060. But see McCullah v. Gadert, 344 F.3d 655, 661 (7th
Cir. 2003) (reserving the question of whether a person
was seized by a summons when he was taken into
custody when he complied with the summons).
14 No. 07-1928
Other circuits have addressed whether a summons,
alone or in combination with pre-trial restrictions, consti-
tutes a seizure, and the answer varies, depending largely
on the severity of the restrictions on freedom of move-
ment. The Tenth Circuit declined to recognize a Fourth
Amendment claim based on a groundless charging deci-
sion “absent a significant restriction on liberty.” Becker v.
Kroll, 494 F.3d 904, 915-16 (10th Cir. 2007). Becker was a
physician subjected to a baseless investigation and prose-
cution for Medicaid fraud. Her records were subpoenaed,
and she was threatened with criminal prosecution if she
failed to pay a requested settlement, even though an
independent review of her records demonstrated that
she had not engaged in any wrongdoing. When Becker
refused to settle, the state first filed a civil suit against
her and then pursued criminal charges. She was subjected
to a preliminary hearing and was bound over for trial, but
was never taken into custody. The civil and criminal cases
were dismissed but Becker was then subjected to an
administrative proceeding that resulted in a finding that
she had not engaged in fraud. Because Becker never was
required to post bond or appear in court, and alleged no
specific restrictions on her freedom of movement (such
as travel restrictions), the court found that she was not
seized for Fourth Amendment purposes. Becker, 494 F.3d
at 915-16. See also Kingsland v. City of Miami, 382 F.3d 1220,
1235-36 (11th Cir. 2004) (finding no seizure for Fourth
Amendment purposes when plaintiff was required to
post $1000 bond, appear at her arraignment, and travel
twice from New Jersey to Florida to defend herself in
court); Karam v. City of Burbank, 352 F.3d 1188, 1193-94 (9th
No. 07-1928 15
Cir. 2003) (required signing of “own recognizance” agree-
ment which obligated woman falsely accused of a misde-
meanor to obtain court’s permission before leaving state,
and which compelled her appearance in court amounted to
de minimis restrictions not constituting a Fourth Amend-
ment seizure); Nieves v. McSweeney, 241 F.3d 46, 56 (1st
Cir. 2001) (declining to find a seizure based on compelled
presence at numerous pre-trial court appearances and at
trial, in the absence of a required bond or travel restric-
tions); Depiero v. City of Macedonia, 180 F.3d 770, 798 (6th
Cir. 1999) (finding no Fourth Amendment seizure where
government conduct consisted of an officer issuing a
citation that required a court appearance); Riley v. Dorton,
115 F.3d 1159, 1162 (4th Cir. 1997) (refusing to apply
Justice Ginsburg’s continuing seizure theory to a claim
of excessive force against pre-trial detainees, instead ap-
plying the Due Process Clause of the Fourteenth Amend-
ment, and collecting cases that analyze at what point,
short of arrest, an individual may have suffered a depriva-
tion of personal freedom sufficient to implicate the
Fourth Amendment).
Other courts have found a Fourth Amendment viola-
tion notwithstanding the absence of a physical seizure.
The Third Circuit, for example, instead considers the
severity of pre-trial restrictions as the determining factor.
DiBella v. Borough of Beachwood, 407 F.3d 599, 602 (3d Cir.
2005). The court held that “[p]retrial custody and some
onerous types of pretrial, non-custodial restrictions
constitute a Fourth Amendment seizure.” For example, in
DiBella, the court held that there was no seizure where
the plaintiffs had simply been issued summonses com-
16 No. 07-1928
pelling their appearance in court for trial. They were not
arrested, they did not post bail, they were free to travel,
and they were not required to report to pretrial services.
The restraint on their liberty during court proceedings
was not sufficient to raise a Fourth Amendment claim.
407 F.3d at 602-03. On the other hand, the court did find
a Fourth Amendment seizure where a man was falsely
charged with arson and mail fraud, and was subjected to
more significant pre-trial restrictions. See Gallo v. City of
Philadelphia, 161 F.3d 217 (3d Cir. 1998). After responding
to a notice, Gallo was arraigned and then released on a
$10,000 bond. He was not arrested, detained or hand-
cuffed, but he was prohibited from traveling outside of
New Jersey and Pennsylvania, and was required to
contact pre-trial services on a weekly basis. Gallo, 161 F.3d
at 219. These restrictions were in place for eight months
before Gallo was acquitted of the charges. He was also
required to attend court hearings, including his trial. The
Third Circuit found that, although it was a close ques-
tion, these pre-trial conditions amounted to a seizure.
Gallo, 161 F.3d at 222-23. Finding Justice Ginsburg’s
concurrence in Albright compelling, the court was per-
suaded that the obligation to appear in court, enforced
by the bond, and compounded by the travel restrictions
and other conditions, had the effect of making Gallo “halt.”
161 F.3d at 223.
The Fifth Circuit, like the Third, concluded that a sum-
mons, combined with certain onerous pre-trial restric-
tions, may constitute a seizure for Fourth Amendment
purposes. Evans v. Ball, 168 F.3d 856, 861 (5th Cir. 1999),
overruled on other grounds by Castellano v. Fragozo, 352 F.3d
No. 07-1928 17
939 (5th Cir. 2003). In response to a summons, Evans
appeared in court to answer charges he later alleged were
baseless. He was fingerprinted, photographed, and re-
quired to sign a personal recognizance bond. He was
required to report to pretrial services once a month, was
prohibited from traveling outside the state without the
permission of the court, and was required to provide
federal officers with financial and identifying informa-
tion. 168 F.3d at 860-61. The court found that the sum-
mons, in combination with these pretrial restrictions,
diminished Evans’ liberty enough to render him seized
under the Fourth Amendment. 168 F.3d at 861. However,
because it was not clearly established that a summons
and pretrial restrictions constituted a Fourth Amendment
seizure, the court found the defendants were entitled
to qualified immunity. 168 F.3d at 862.
The Second Circuit has held that “while a state has the
undoubted authority, in connection with a criminal
proceeding, to restrict a properly accused citizen’s consti-
tutional right to travel outside of the state as a condition
of his pretrial release, and may order him to make
periodic court appearances, such conditions are appro-
priately viewed as seizures within the meaning of the
Fourth Amendment.” Murphy v. Lynn, 118 F.3d 938, 946
(2d Cir. 1997). The Murphy court upheld a verdict in favor
of a plaintiff bringing a Fourth Amendment malicious
prosecution claim against two police officers who
signed spurious criminal complaints accusing the plaintiff
of both misdemeanor and felony offenses. 118 F.3d at 942.
To make out such a claim, the court required a plaintiff to
show (1) the commencement or continuation of a criminal
18 No. 07-1928
proceeding by a defendant against a plaintiff; (2) a termina-
tion of the proceeding favorable to the plaintiff; (3) the
absence of probable cause for the proceeding; (4) actual
malice on the part of the defendant; and (5) a post-arraign-
ment deprivation of liberty guaranteed by the Constitution.
118 F.3d at 943. Noting the fundamental nature of a citi-
zen’s right to travel from state to state, the court held that
a pre-trial restriction of that right has Fourth Amendment
implications. 118 F.3d at 945. The court also wrote ap-
provingly of Justice Ginsburg’s concurrence in Albright,
finding that the eight trial court appearances required
of the plaintiff while the criminal charges were pending
also contributed to a finding of a post-arraignment depri-
vation of liberty under the Fourth Amendment. 118 F.3d
at 946.
Prior to the Supreme Court’s opinion in Albright, we
rejected the concept of continuing seizure in a case involv-
ing police misconduct post-arrest and pre-charge. Wilkins
v. May, 872 F.2d 190, 194 (7th Cir. 1989). Wilkins was
arrested on suspicion of bank robbery. He alleged that,
during his interrogation, while he was handcuffed and
defenseless, an FBI agent pointed a gun at his head,
inflicting severe mental distress on him and causing him
to confess. Wilkins sued the FBI agent and his partner
under Section 1983, for violating his constitutional rights
by extracting his confession at gunpoint. On appeal, the
issue before us was whether Wilkins had sufficiently
alleged a constitutional deprivation. At the time of the
police misconduct, Wilkins had already been seized for
Fourth Amendment purposes because he had been ar-
rested. 872 F.2d at 192. A natural interpretation of the
No. 07-1928 19
word “seizure” might limit it to the initial act of seizing,
and the Fourth Amendment clearly applies to that initial
act. 872 F.2d at 192-93. We rejected the concept of a con-
tinuing seizure Fourth Amendment analysis for police
conduct during a post-arrest, pre-charge interrogation
because custodial interrogation “does not curtail a person’s
freedom of action; it presupposes that he has already
lost that freedom.” 872 F.2d at 194. Instead, we opined,
the due process clause applied, and it was “for the trier
of fact to decide whether a particular incident involving
interrogation at gunpoint is so terrifying in the circum-
stances as to constitute a deprivation of liberty within
the meaning of the due process clause.” 872 F.3d at 195.
We defined the relevant liberty interest as the freedom
from severe bodily or mental harm inflicted in the
course of an interrogation. 872 F.2d at 195.
We reaffirmed our rejection of the concept of a con-
tinuing seizure in Reed v. City of Chicago, 77 F.3d 1049, 1052
n.3 (7th Cir. 1996), and Lee v. City of Chicago, 330 F.3d 456,
463 n.3 (7th Cir. 2003). Neither of those cases, however, are
directly on point here because in each case there was a
clear initial seizure. Reed was arrested and confined for
twenty-three months prior to his acquittal for first degree
murder. He brought his Section 1983 action for unlawful
arrest, search, and seizure too late under the statute of
limitations. He was left with claims for malicious prosecu-
tion and unlawful confinement against the arresting
officers. We noted that, although the concept of con-
tinuing seizure was “intriguing,” we had already rejected
it in Wilkins. 77 F.3d at 1052 n.3. We affirmed the dismissal
of Reed’s claim because, at bottom, it was really a claim
20 No. 07-1928
that he was arrested and charged without probable
cause, a claim that he conceded was time-barred. Lee
alleged a Fourth Amendment claim for the seizure of his
car as evidence in a case. He conceded that the initial
impoundment of the car by the city was proper. The city
subsequently refused to return the car when there was
no longer a legitimate need to keep it unless Lee paid a
fee. Citing Reed and Wilkins, we noted that Fourth Amend-
ment seizure claims are temporally restricted to the
initial deprivation. Lee, 330 F.3d at 465. Because Lee’s
complaint did not implicate the initial deprivation of his
property but rather the fairness of the process that existed
for subsequently recovering his property, we noted that
due process analysis was a better fit for Lee’s claim. 330
F.3d at 466.
The concept of continuing seizure is a poor fit for the
facts of Bielanski’s case, in any event, because to have a
continuing seizure, one must have a seizure in the first
place. In Wilkins, Reed, and Lee, there was an initial seizure
at a single point in time, and the plaintiffs sought to
recover for subsequent events. The application of the
continuing seizure theory to our case still leaves us with
the question of whether Bielanski was ever seized in the
first instance. Bielanski, as we noted above, alleges three
facts in support of her claim that she was seized for
Fourth Amendment purposes: (1) she was compelled by
process to attend numerous court hearings; (2) she was
required to obtain the permission of the court before
leaving the state; and (3) she was required to submit to
an interview with a probation officer.
No. 07-1928 21
The Supreme Court “adhere[s] to the view that a person
is ‘seized’ only when, by means of physical force or a show
of authority, his freedom of movement is restrained.”
United States v. Mendenhall, 446 U.S. 544, 553 (1980). No
court has held that a summons alone constitutes a
seizure, and we conclude that a summons alone does not
equal a seizure for Fourth Amendment purposes. To
hold otherwise would transform every traffic ticket and
jury summons into a potential Section 1983 claim. See
Mahoney, 976 F.2d at 1060. Although the travel restriction
and the interview with the probation officer might be
somewhat more onerous than the summons alone, we
conclude that they are insufficient restraints on freedom
of movement to constitute a seizure. The First Circuit
remarked in Nieves that “if the concept of a seizure is
regarded as elastic enough to encompass standard condi-
tions of pretrial release, virtually every criminal defendant
will be deemed to be seized pending the resolution of
the charges against him.” 241 F. 3d at 55. The court opined
that garden-variety malicious prosecution cases were better
left to the state courts. Id. The conditions imposed on
Bielanski were not the “dramatic” or “traumatic” condi-
tions we mentioned in Mahoney. 976 F.2d at 1060. No
doubt being falsely accused of molesting a child was
itself traumatic, and a state court malicious prosecution
claim would have addressed that injury, but a false ac-
cusation is not a seizure. For the travel restriction,
Bielanski does not claim that the court denied her any
request to travel outside the state, only that she was
required to request permission. Such a requirement is, at
most, a precursor to a possible seizure rather than a
22 No. 07-1928
seizure itself. The single required meeting with a proba-
tion officer is the type of standard condition of pretrial
release that is not onerous enough to constitute a seizure.
241 F.3d at 55. Most importantly, we have stated that
the Fourth Amendment “drops out of the picture following
a person’s initial appearance in court.” Hernandez v.
Sheahan, 455 F.3d 772, 777 (7th Cir. 2006). The travel
restriction and the meeting with the probation officer
were restrictions imposed by a judge once Bielanski
appeared in court, and so a Fourth Amendment claim
against these defendants cannot stand. In short, Bielanski
has failed to allege a seizure (continuing or otherwise)
by these defendants and thus has no claim under the
Fourth Amendment.
B.
We turn next to Bielanski’s claim that she was denied
the right to a fair trial when the defendants withheld
exculpatory and impeaching evidence in violation of
Brady v. Maryland, 373 U.S. 83 (1963). Bielanski alleged
that, between August 17, 2001 and November 16, 2001,
Berg and Byrne learned a number of facts that were
exculpatory but did not turn any of this information over
to DCFS, prosecutors, the juvenile court, and Bielanski’s
defense counsel. Specifically, Bielanski alleged that Berg
and Byrne knew that Brent was medicated for Attention
Deficit Hyperactivity Disorder (ADHD) and was assigned
to special education classes; that Brent’s parents had
difficulty controlling and disciplining him; that in the
summer of 2001, Brent had disrobed at summer camp
No. 07-1928 23
and attempted to disrobe other children; that in July 2001,
Brent’s parents angrily confronted him after learning
from relatives that Brent had attempted to disrobe his
cousins; and that following the disrobing incidents, Brent’s
parents punished him and questioned him in a manner
that suggested to him that someone had sexually abused
him. According to Bielanski, all of this information was
material to the validity and reliability of Brent’s state-
ment that “Lorri” had sexually abused him. The district
court found that a Brady claim is extinguished by an
acquittal because the disclosure of the evidence would not
have changed the outcome of the trial. The court remarked
that the Brady analysis was difficult enough in the face
of a conviction, when the court then has to determine
whether the evidence would have changed the outcome.
In the case of an acquittal, a court has to determine
whether, assuming the defendant had been convicted
(which she had not), the exculpatory evidence would
have led to an acquittal. In most cases of acquittal, the
court stated, there will be no damages unless the with-
held information would have destroyed the prosecution’s
case. The court held that the revelation of the additional
evidence would not have destroyed the prosecution’s
case. That is, this information would not have led to the
pre-trial dismissal of the charges against Bielanski.
“A Brady violation occurs when the government fails to
disclose evidence materially favorable to the accused.”
Youngblood v. West Virginia, 547 U.S. 867, 869 (2006). The
Brady duty extends to impeachment evidence as well as
exculpatory evidence. Youngblood, 547 U.S. at 870. And a
court may find that a Brady violation has occurred even
24 No. 07-1928
when the suppressed evidence is known only to police
investigators and not to the prosecutor. Id.; Kyles v. Whitley,
514 U.S. 419, 438 (1995). See also Carvajal v. Dominguez,
542 F.3d 561, 566-67 (7th Cir. 2008) (in order to make out a
Brady claim, a plaintiff must demonstrate that the
evidence at issue is favorable to the accused, either
because it is exculpatory or impeaching; that the evidence
was suppressed by the government, either willfully or
inadvertently; and that the evidence was material, that is,
that there is a reasonable probability that prejudice en-
sued); United States v. Warren, 454 F.3d 752, 759 (7th Cir.
2006) (same). On appeal, the only part of the Brady formu-
lation at issue is whether the evidence in question was
material. “[F]avorable evidence is material, and constitu-
tional error results from its suppression by the govern-
ment, if there is a ‘reasonable probability’ that, had the
evidence been disclosed to the defense, the result of the
proceeding would have been different.” Kyles, 514 U.S. at433-34 (citing United States v. Bagley, 473 U.S. 667, 682
(1985)). In discussing the difference between the “rea-
sonable probability” standard and a preponderance
standard, the Court explained:
The question is not whether the defendant would more
likely than not have received a different verdict with
the evidence, but whether in its absence he received a
fair trial, understood as a trial resulting in a verdict
worthy of confidence.
Kyles, 514 U.S. at 434. A defendant may demonstrate a
Brady violation by “showing that the favorable evidence
could reasonably be taken to put the whole case in such
No. 07-1928 25
a different light as to undermine confidence in the verdict.”
Kyles, 514 U.S. at 435.
The Supreme Court has yet to address the situation
alleged here, where certain evidence was withheld by the
prosecution and yet the defendant was still acquitted.
The government argues that there can be no Brady viola-
tion in the face of an acquittal. Bielanski maintains that
an acquittal does not extinguish a Brady claim because a
defendant might be acquitted even after an unfair trial,
and the failure of the prosecution to reveal this evidence
in a timely fashion damaged her by unnecessarily prolong-
ing the proceedings. The district court opined that revela-
tion of the evidence in question would not have
shortened the proceedings, and we agree. Although the
evidence could have been used to impeach Brent’s cred-
ibility and offer an alternate explanation for his charge
against Bielanski, the withheld evidence was not of the
nature to cause a prosecutor to drop the charges entirely.
Several of our sister circuits to consider the question
have concluded that a Brady claim is extinguished when
a defendant is acquitted or charges are dropped. See
Morgan v. Gertz, 166 F.3d 1307, 1310 (10th Cir. 1999)
(“Regardless of any misconduct by government agents
before or during trial, a defendant who is acquitted
cannot be said to have been deprived of the right to a fair
trial.”); Flores v. Satz, 137 F.3d 1275, 1278 (11th Cir. 1998)
(finding no Brady violation in the face of an acquittal
because Brady protects a defendant from an unfair trial
and an acquitted defendant does not suffer the effects of
an unfair trial); McCune v. City of Grand Rapids, 842 F.2d
26 No. 07-1928
903, 907 (6th Cir. 1988) (where criminal charges are
dropped before trial, and thus the underlying criminal
proceeding terminated in an appellant’s favor, there is
no injury caused by the act of suppressing exculpatory
evidence). But see Haupt v. Dillard, 17 F.3d 285, 287-88 (9th
Cir. 1994) (where trial judge was biased, defendant’s
acquittal speaks only to the amount of damages due and
is irrelevant to whether he has a cause of action for a
violation of his due process right to a fair trial).
We very recently expressed doubt in Carvajal “that an
acquitted defendant can ever establish the requisite
prejudice for a Brady violation.” 542 F.3d at 570. We noted
that the Supreme Court measured Brady materiality by
whether the nondisclosure was so serious that the sup-
pressed evidence would have produced a different
verdict. Carvajal, 542 F.3d at 570 (citing Strickler, 527 U.S. at
289-90). We took this to mean that, although a prosecutor
must decide whether evidence is Brady material prospec-
tively, “a true constitutional violation is measured with
the outcome in mind.” 542 F.3d at 570. Nonetheless, we
analyzed the claim to determine whether, in part, “the
decision to go to trial would have been altered by the
desired disclosure.” 542 F.3d at 569. We concluded
there, as we do here, that the decision to go to trial would
not have been affected by the allegedly withheld evidence.
Brady requires that the government disclose material
evidence in time for the defendant to make effective use
of it at trial. See Warren, 454 F.3d at 761. Even late disclo-
sure does not constitute a Brady violation unless the
defendant is unable to make effective use of the evidence.
No. 07-1928 27
Warren, 454 F.3d at 760. See also Moore v. Casperson, 345
F.3d 474, 493 (7th Cir. 2003) (nothing in Brady requires that
disclosures be made before trial because, as long as ulti-
mate disclosure is made before it is too late for the defen-
dant to make use of any benefits of the evidence, due
process is satisfied); United States v. Grintjes, 237 F.3d
876, 880 (7th Cir. 2001) (Brady demands only that the
disclosure not come so late as to prevent the defendant
from receiving a fair trial). Under these cases, Brady
evidence can be handed over on the eve of trial or even
during trial so long as the defendant is able to use it to
his or her advantage. That said, purposefully withholding
exculpatory or impeaching evidence until the last
moment would be a risky and ethically questionable
practice for government agents to undertake, and we
certainly do not condone that approach with our
opinion today. We hasten to add that there is no allega-
tion here that the prosecution purposefully withheld the
subject evidence.
Earlier disclosure of this evidence would not have
resulted in dismissal of the charges prior to trial. For
the most part, the evidence is impeaching rather than
exculpatory and its use in cross-examination of the in-
vestigators and the accuser certainly would have created
credibility issues for the trier of fact to resolve. The evi-
dence weakened parts of the prosecution’s case but was
not the type of evidence that would have precluded the
charges entirely. And Bielanski ultimately had a trial
which resulted in a verdict “worthy of confidence.” Kyles,
514 U.S. at 434. See also Bagley, 473 U.S. at 675 (the pur-
pose of the Brady rule is “to ensure that a miscarriage of
28 No. 07-1928
justice does not occur”). Because Bielanski did not suffer
the harm that Brady aims to prevent, we therefore con-
clude there was no Brady violation here.
III.
In sum, Bielanski has failed to allege a Fourth Amend-
ment claim because she was not seized when she was
summoned to trial before the juvenile court and subjected
to minimal pre-trial restrictions. And she has failed to
allege a Brady due process claim because the undisclosed
favorable evidence would not have resulted in earlier
dismissal of the charges and could not “reasonably be
taken to put the whole case in such a different light as to
undermine confidence in the verdict.” Kyles, 514 U.S. at
435. At bottom, Bielanski has alleged a claim for
malicious prosecution that is more appropriately brought
in state court. See Wiley, 361 F.3d at 998. Because her Monell
claim depended entirely on the validity of her first two
claims, we affirm the dismissal of the Monell claim as well.
A FFIRMED.
12-18-08