Nieves v. McSweeney , 241 F.3d 46 ( 2001 )

United States Court of Appeals
For the First Circuit
No. 00-1110
ANGEL NIEVES AND REBECCA NIEVES,
Plaintiffs, Appellants,
v.
TERENCE J. MCSWEENEY ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Lipez, Circuit Judge.
James B. Krasnoo, with whom Paul J. Klehm was on brief, for
appellants.
Brian Rogal, with whom Law Offices of Timothy M. Burke was
on brief, for appellee McSweeney.
Douglas I. Louison, Stephen C. Pfaff, and Merrick, Louison
& Costello on brief for appellee Beauvais.
Leonard H. Kesten, Jocelyn M. Sedney, Deidre Brennan Regan,
and Brody, Hardoon, Perkins & Kesten on brief for remaining
appellees.
February 27, 2001
SELYA, Circuit Judge. The appellants, Angel Nieves and
his eighteen-year-old daughter Rebecca, claim to be victims of
police brutality. They waited a considerable period of time
before bringing suit, however, and the district court turned
them away, partially on timeliness grounds and partially for
failure to proffer a federally-cognizable claim. Their appeal
contends that the lower court misunderstood both the operation
of the statute of limitations in civil conspiracy cases and the
circumstances under which 42 U.S.C. § 1983 provides a vehicle
for the maintenance of malicious prosecution claims. Finding
these contentions unpersuasive, we affirm the district court's
entry of summary judgment.
I. BACKGROUND
On the evening of May 12, 1994, a disturbance erupted
at the appellants' home in Ayer, Massachusetts. The police
learned of the tumult from Rebecca's mother (Angel's ex-wife),
who telephoned to report that Angel was abusing Rebecca.
Officers Terence McSweeney and Dana Beauvais responded to the
call. Although the details of what transpired are murky, at
least two things are clear: (1) a melee developed involving the
appellants and the police officers; and (2) both appellants
sustained injuries.
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As the fracas ended, two more police officers, Bradley
Madge and Leon Avery, arrived at the scene. The appellants were
arrested without a warrant and taken to the police station. The
authorities detained them for approximately two hours, at which
point Angel was released on a $25 bond and Rebecca was released
on her own recognizance.
The next day, Officer Edward Denmark, acting on reports
filed by McSweeney and Beauvais, swore out criminal complaints
against the appellants. One such complaint charged Angel with
assault with intent to murder, assault and battery by dangerous
weapon, assault and battery on a police officer (two counts),
and being a disorderly person. The second charged Rebecca with
two counts of assault and battery on a police officer and one
count of being a disorderly person. The appellants were
promptly arraigned and then released on their own recognizance.
Pretrial proceedings were unremarkable (although the
appellants, from time to time, had to attend court sessions).
Eventually, the charge of assault with intent to murder was
withdrawn. The remaining charges were tried to a jury. On
October 27, 1994, the jurors found Angel guilty on the
disorderly person charge but acquitted the appellants on all
other charges.
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Nearly three years later, on October 9, 1997, the
appellants brought suit in the United States District Court for
the District of Massachusetts against McSweeney, Beauvais,
Madge, Avery, Denmark, the chief of police, and the town of Ayer
(the Town). The gravamen of their complaint was the
multifaceted allegation that the officers conspired to deprive
the appellants of their civil rights by using excessive force,
arresting them without probable cause, initiating baseless
charges, and maliciously prosecuting those charges. After an
extensive period of pretrial discovery, the defendants sought
summary judgment. In passing upon these motions, the district
court proceeded in increments. First, it segregated all the
federal-law claims that were based on the events of May 12, 1994
(such as those rooted in excessive force and false arrest) and
ruled that they were time-barred. Nieves v. McSweeney, 73 F.
Supp. 2d 98, 102 (D. Mass. 1999). Next, the court focused upon
the lone federal claim that escaped this proscription:
conspiracy to commit malicious prosecution. That claim, the
court ascertained, did not allege a violation of a federally-
protected right. Id. at 104. Accordingly, the court granted
the defendants' motions for brevis disposition, without
prejudice, however, to the appellants' pursuit of any state-law
claims in a state tribunal. Id. at 106. This appeal followed.
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II. ANALYSIS
The appellants advance two principal theses in their
endeavor to blunt the swing of the summary judgment ax. First,
they posit that the entire panoply of events that began on the
evening of the arrest and ended with the completion of their
criminal trial constituted a single, ongoing conspiracy.
Building on this foundation, they argue that the statute of
limitations did not begin to run until the commission of the
last overt act incident to that conspiracy — the officers'
allegedly false testimony at the criminal trial. Since that act
took place within the three-year limitation period, the
appellants assert that their claims are timely. As a fallback,
the appellants argue that even if some of their claims are time-
barred, their malicious prosecution claim is not. This claim,
they suggest, comprises a viable constitutional cause of action
grounded in the Fourth Amendment.
In the sections that follow, we parse the complaint and
then measure each of these theories against a familiar standard
of review. After all, summary judgment is appropriate only when
"the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law."
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Fed. R. Civ. P. 56(c). In applying this screen, we construe the
record and all reasonable inferences from it in favor of the
party who lost below. Grant's Dairy-Me., LLC v. Comm'r of Me.
Dep't of Agric., Food & Rural Res., 232 F.3d 8, 14 (1st Cir.
2000); Houlton Citizens' Coalition v. Town of Houlton, 175 F.3d
178, 184 (1st Cir. 1999). In the process, we afford no special
deference to the lower court's views. See Houlton Citizens'
Coalition, 175 F.3d at 184 (explaining that the court of appeals
reviews the entry of summary judgment de novo).
A. The Complaint.
We grapple with only two of the ten counts in the
complaint: counts 1 and 2. These counts are both premised on
42 U.S.C. § 1983. They charge Officers McSweeney, Beauvais, and
Madge with participating in a conspiracy to violate the
appellants' civil rights.1 We briefly explain why the remaining
counts need not concern us.
Three counts — counts 3, 4, and 5 — allege supervisory
liability against the police chief and municipal liability on
1We mention only McSweeney, Beauvais, and Madge because, in
other rulings, the district court dismissed the action as it
pertained to Avery and Denmark. These unappealed rulings rested
on different premises and we do not discuss them further.
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the part of the Town. The district court initially severed and
stayed the prosecution of these counts, and eventually granted
summary judgment on them (along with counts 1 and 2). These
counts require proof, inter alia, of an underlying
constitutional violation. See Evans v. Avery, 100 F.3d 1033,
1040 (1st Cir. 1996) (applying this principle in respect to
municipal liability); Martinez v. Colon, 54 F.3d 980, 990 (1st
Cir. 1995) (applying this principle in respect to supervisory
liability). The constitutional violations upon which these
counts are premised are those alleged in counts 1 and 2. Thus,
if the district court appropriately jettisoned the first two
counts of the complaint, the next three also must fail.
By like token, counts 6, 7, and 8 charge violations of
42 U.S.C. § 1985, which in pertinent part confers a private
right of action for injuries occasioned when "two or more
persons . . . conspire . . . for the purpose of depriving,
either directly or indirectly, any person or class of persons of
the equal protection of the laws, or of equal privileges and
immunities under the laws." 42 U.S.C. § 1985(3). As the
district court noted, the appellants' section 1985(3) claims
mirror their section 1983 claims. Nieves, 73 F. Supp. 2d at 102
n.4. Inasmuch as the critical issues in this appeal — whether
the appellants sued in a timeous fashion and whether they were
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deprived of a federally-protected right — are common to both
sets of claims, it would serve no useful purpose to discuss the
section 1985(3) claims separately. Those counts can stand only
if, and to the same extent that, counts 1 and 2 can stand.
This brings us to counts 9 and 11 (oddly, the
appellants' complaint contains no count 10). These counts
allege a common-law conspiracy to violate Massachusetts civil
rights laws. When the court below entered its summary judgment
order, it declined to exercise supplemental jurisdiction over
these counts. Id. at 106. The appellants have not attacked the
lower court's determination that these counts should be aired in
a state forum. Consequently, we need not discuss them in any
detail.
B. Conspiracy.
The appellants allege the existence of a single ongoing
conspiracy that extended over a period of more than four months
(May 12 through October 27, 1994) and encompassed the officers'
excessive use of force, the false arrest, and the ensuing
malicious prosecution. Because of the appellants' delay in
bringing suit, we must determine when the limitation period
began to run on this civil rights conspiracy claim.
Section 1983 does not contain a built-in statute of
limitations. McIntosh v. Antonino, 71 F.3d 29, 33 (1st Cir.
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1995). Thus, a federal court called upon to adjudicate a
section 1983 claim ordinarily must borrow the forum state's
limitation period governing personal injury causes of action.
Wilson v. Garcia, 471 U.S. 261, 276-80 (1985). Massachusetts
prescribes a three-year statute of limitations for personal
injury actions. See Mass. Gen. Laws ch. 260, § 2A. We have
borrowed this prescriptive period for section 1983 cases arising
in Massachusetts, e.g., McIntosh, 71 F.3d at 34, and the parties
agree that the three-year period applies here.
The parties do not agree, however, on when the
limitation period began to run. As said, the confrontation
between the officers and the appellants occurred on May 12,
1994, yet no suit was commenced until October 9, 1997. The
appellants asseverate that this elapsed time is not fatal:
because they configured their claims as arising within the
contours of an ongoing conspiracy, the clock did not begin to
tick until the conclusion of the criminal trial (October 27,
1994), thus rendering their civil suit timely. The appellees
say that this reasoning elevates form over substance. Since the
triggering events occurred on May 12, 1994, they maintain that
the limitation period expired well before the appellants started
suit. For the most part, the district court agreed with the
appellees. See Nieves, 73 F. Supp. 2d at 103-04. So do we.
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This court determined more than two decades ago that,
in the context of a continuing conspiracy to violate civil
rights, the statute of limitations runs separately from the
occurrence of each civil rights violation that causes actual
damage to the plaintiff (as long as the plaintiff knows or
should have known of the injury). Hernandez Jimenez v. Calero
Toledo, 576 F.2d 402, 404 (1st Cir. 1978). In so holding, we
explicitly repudiated the notion, loudly bruited by the
appellants in this case, that the statute of limitations for
civil conspiracy should run from the date of the last overt act
that causes damage to the plaintiff. We stated:
We recognize that some courts have spoken of
the "last overt act" of a civil rights
conspiracy as the time from which the
statute begins to run, but do not believe
those courts meant to depart from the
traditional rule in civil conspiracies that
the mere fact of a conspiracy does not toll
the statute of limitations with respect to
earlier clear-cut violations of rights that
have not been concealed from the plaintiff.
Id. at 404 n.1 (citation omitted). 2 As the appellants do not
suggest that the violations that transpired in the course of
2The principal authority that the appellants cite in support
of their "last overt act" theory is Buford v. Tremayne, 747 F.2d
445, 448 (8th Cir. 1984) (opining that in a conspiracy action
"the statute of limitations begins to run from the occurrence of
the last overt act resulting in damage to the plaintiff").
Although this decision postdates Hernandez Jimenez, it
nonetheless falls squarely within the class of cases
contemplated by footnote 1 of the Hernandez Jimenez opinion.
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this alleged conspiracy (such as the excessive use of force and
the false arrest) were concealed from them, Hernandez Jimenez
controls. See United States v. Wogan, 938 F.2d 1446, 1449 (1st
Cir. 1991) (holding that in a multi-panel circuit, prior panel
decisions generally are binding upon newly-constituted panels).
The appellants attempt to withstand this blow by
cloaking themselves in the protective armor of Robinson v.
Maruffi, 895 F.2d 649 (10th Cir. 1990). That armor does not
fit. The black-letter rule is that the statute of limitations
on a malicious prosecution claim begins to run upon the
termination of the antecedent criminal proceedings. Heck v.
Humphrey, 512 U.S. 477, 489 (1994). Applying this rule, the
Robinson court allowed a plaintiff to reach back to include
claims of false arrest and false imprisonment within a simple
civil conspiracy claim on a "continuing violation" theory, see
895 F.2d at 654-55, but it did so on facts that differ
significantly from the case at bar.
The most important distinction between these two cases
is that, in Robinson, the conspiratorial agreement arose before
the arrest; Robinson contended that the defendants formulated an
elaborate plan to frame him for the murder of a police officer
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and then arrested him in furtherance of that plan.3 Id. at 655.
This sequencing meant that the arrest was encompassed within the
malicious prosecution conspiracy, and the statute of limitations
therefore began to run on all acts (including the arrest) only
when the criminal proceedings were terminated in Robinson's
favor.
Robinson is the unusual case in which the malicious
prosecution conspiracy began before the victim's arrest and
encompassed it. The case at bar is vastly different. Here, it
is undisputed that the officers and the appellants were
strangers to each other until the date of the arrest. It is
also undisputed that the officers went to the appellants' abode
in response to a third-party call. Under the appellants' own
theory of the case, the malicious prosecution conspiracy did not
antedate the arrest, but, rather, arose afterwards, sparked by
the officers' perceived need to cover up their unwarranted
brutality.
In comparable situations, we have determined the
conspiracy to be distinct from the events that triggered the
need for it. E.g., Landrigan v. City of Warwick, 628 F.2d 736,
3
Among other things, the plan involved surveilling
Robinson's associates, apprehending them for petty crimes, and
threatening them with incarceration unless they implicated
Robinson in the murder (for which he was then arrested and
prosecuted). Robinson, 895 F.2d at 651-53.
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741 (1st Cir. 1980) (finding excessive force and a subsequent
coverup to be "separate and distinct wrongs resting on different
factual bases"). We reaffirm that view today and, accordingly,
reject the appellants' theory of a single, unified conspiracy
encompassing excessive use of force, false arrest, and malicious
prosecution. This means, of course, that the three-year statute
of limitations runs from each civil rights violation identified
in the complaint. See Hernandez Jimenez, 576 F.2d at 404.
With these dynamics in mind, we proceed to analyze the
operation of the statute of limitations in relation to each of
the component violations charged in the appellants' complaint.
We conduct this analysis mindful that the question of when a
cause of action accrues in a civil rights case is a matter of
federal law. Rivera-Muriente v. Agosto-Alicea, 959 F.2d 349,
353 (1st Cir. 1992); Street v. Vose, 936 F.2d 38, 40 (1st Cir.
1991) (per curiam). Consequently, a section 1983 claim accrues
at the moment the plaintiff knows, or has reason to know, of the
injury that is the basis for the claim. Calero-Colon v.
Betancourt-Lebron, 68 F.3d 1, 3 (1st Cir. 1995).
Following this scheme, it is pellucid that all claims
based on the officers' physical abuse or arrest of the
appellants accrued at the time that those events occurred — May
12, 1994 — because the appellants had ample reason to know of
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the injury then and there.4 See Beck v. City of Muskogee Police
Dep't, 195 F.3d 553, 558 (10th Cir. 1999) (explaining that
claims arising from police action toward a criminal suspect,
such as arrest and seizure, are presumed to accrue when the
actions occur); Sneed v. Rybicki, 146 F.3d 478, 481 (7th Cir.
1998) (observing that a section 1983 false arrest claim accrues
on the day of the arrest regardless of later proceedings);
McIntosh, 71 F.3d at 34 (determining that plaintiff's section
1983 claims for assault and false arrest accrued on the date
that the events occurred); Singleton v. City of New York, 632
F.2d 185, 191 (2d Cir. 1980) (similar). The statute of
limitations on these claims expired three years later — months
before the appellants filed suit. Accordingly, we uphold the
district court's conclusion that the alleged civil rights
violations predicated on excessive force and false arrest are
time-barred.
C. Malicious Prosecution.
Although two of the appellants' claims have foundered
on the shoals of the statute of limitations, one claim escapes
4
We deal here with the mine-run, acknowledging, however,
that there may be rare and exotic circumstances in which a
section 1983 claim based on a warrantless arrest will not accrue
at the time of the arrest. See Calero-Colon, 68 F.3d at 4-5
(Lynch, J., concurring). We are not faced with any such
situation today.
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this prohibition. As we noted earlier, a cause of action for
malicious prosecution does not accrue until the termination of
the criminal proceedings. See Heck, 512 U.S. at 489. Since the
appellants filed their civil suit within three years of the
verdict that marked the end of the criminal case, this differing
accrual rule enables them to board the lifeboat of a section
1983 malicious prosecution claim and see how far that craft
takes them.
The elements of a common-law cause of action for
malicious prosecution are: (1) the commencement or continuation
of a criminal proceeding against the eventual plaintiff at the
behest of the eventual defendant; (2) the termination of the
proceeding in favor of the accused; (3) an absence of probable
cause for the charges; and (4) actual malice. Correllas v.
Viveiros, 572 N.E.2d 7, 10 (Mass. 1991). We assume, for
argument's sake, that the appellants made a sufficient showing
on these four points to avoid summary judgment.5 Even so, more
is needed to transform malicious prosecution into a claim
cognizable under section 1983. See Roche v. John Hancock Mut.
5
Of course, the jury convicted Angel Nieves on one count:
being a disorderly person. The parties hotly dispute whether an
acquittal on all counts but one is a termination of the criminal
proceedings in Angel's favor (and, thus, satisfies the second
prong of the four-part framework for malicious prosecution).
Given our ultimate conclusion that no constitutional deprivation
occurred, however, we need not resolve this dispute.
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Life Ins. Co., 81 F.3d 249, 256 (1st Cir. 1996) (explaining that
"a garden-variety claim of malicious prosecution garbed in the
regalia of § 1983 must fail"). To bridge the gap, the plaintiff
also must show a deprivation of a federally-protected right.
Meehan v. Town of Plymouth, 167 F.3d 85, 88 (1st Cir. 1999);
Roche, 81 F.3d at 254.
The fact that a plaintiff styles her claim as a
conspiracy to prosecute her maliciously does not diminish her
need to show a constitutional deprivation. Singer v. Fulton
County Sheriff, 63 F.3d 110, 119 (2d Cir. 1995). In order to
make out an actionable conspiracy under section 1983, a
plaintiff has to prove not only a conspiratorial agreement but
also an actual abridgment of some federally-secured right.
Earle v. Benoit, 850 F.2d 836, 844 (1st Cir. 1988); Landrigan,
628 F.2d at 742. Moreover, it is the plaintiff's burden to
identify the specific constitutional right infringed. See
Albright v. Oliver, 510 U.S. 266, 271 (1994). In the end, this
requirement scuttles the appellants' claim.
It is perfectly clear that the Due Process Clause
cannot serve to ground the appellants' federal malicious
prosecution claim. No procedural due process claim can flourish
in this soil because Massachusetts provides an adequate remedy
for malicious prosecution. See Roche, 81 F.3d at 256 (citing,
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inter alia, Beecy v. Pucciarelli, 441 N.E.2d 1035, 1038-39
(Mass. 1982)). Similarly, a plurality of the Supreme Court has
concluded that "substantive due process may not furnish the
constitutional peg on which to hang" a federal malicious
prosecution tort. Albright, 510 U.S. at 271 n.4. We have
followed the Court's lead in this respect, see, e.g., Roche, 81
F.3d at 256 (holding that there is no substantive due process
right under the Fourteenth Amendment to be free from malicious
prosecution), and we hew to that line today.
The Fourth Amendment, however, provides potentially
more fertile soil. It is an open question whether the
Constitution permits the assertion of a section 1983 claim for
malicious prosecution on the basis of an alleged Fourth
Amendment violation. See Albright, 510 U.S. at 271-75; Britton
v. Maloney, 196 F.3d 24, 28 (1st Cir. 1999), cert. denied, 120
S. Ct. 2198 (2000); Singer, 63 F.3d at 114. As in previous
cases, e.g., Britton, 196 F.3d at 28; Roche, 81 F.3d at 256 n.5,
we will assume without deciding that malicious prosecution can,
under some circumstances, embody a violation of the Fourth
Amendment and thus ground a cause of action under section 1983.
We turn, then, to a consideration of whether the facts of this
case suffice to sustain such a claim.
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The Fourth Amendment provides that "[t]he right of the
people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not
be violated . . . ." U.S. Const. amend. IV. For a public
official to transgress the Fourth Amendment through the
initiation and pursuit of criminal charges, the prosecution of
those charges must at a bare minimum have occasioned a
deprivation of liberty consistent with the concept of a seizure.
Britton, 196 F.2d at 28; Singer, 63 F.3d at 116.
The appellants assert that they were "seized" for
Fourth Amendment purposes from the time of their arrest through
the end of their criminal trial. But this assertion rests on a
flawed premise. The tort of malicious prosecution permits
damages for a deprivation of liberty — a seizure — pursuant to
legal process. Heck, 512 U.S. at 484; Calero-Colon, 68 F.3d at
3. Generally, the offending legal process comes either in the
form of an arrest warrant (in which case the arrest would
constitute the seizure) or a subsequent charging document (in
which case the sum of post-arraignment deprivations would
comprise the seizure). Singer, 63 F.3d at 117. The first of
these variations has no bearing here. The appellants were
arrested without a warrant and, thus, their arrests — which
antedated any legal process — cannot be part of the Fourth
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Amendment seizure upon which they base their section 1983
claims.
Meehan aptly illustrates this point. There, the
plaintiff attempted to base a section 1983 malicious prosecution
claim on his warrantless arrest. 167 F.3d at 89. We rejected
this initiative, stating:
Meehan may not bring a malicious prosecution
claim based upon his arrest because his
arrest does not constitute the "initiation
of proceedings" against Meehan. . . .
Meehan's arrest was not made pursuant to an
arrest warrant. Meehan cites no authority
for the proposition that a malicious
prosecution cause of action may be based
upon a warrantless arrest.
Id. at 89-90 (internal citation and footnote omitted). Accord
Singer, 63 F.3d at 117.
This leaves the appellants with the task of showing
some post-arraignment deprivation of liberty, caused by the
application of legal process, that approximates a Fourth
Amendment seizure. Following a thoughtful analysis, the
district court concluded that the appellants could not vault
this hurdle. Nieves, 73 F. Supp. 2d at 105. We agree.
It is undisputed that the first time the appellants
were subject to legal process was on May 13, 1994 (when criminal
complaints against them issued). Taking the facts from the
standpoint most favorable to the appellants, as we must, see
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Houlton Citizens' Coalition, 175 F.3d at 184, the following
events occurred after that time: the appellants were released
on their own recognizance; they suffered the stress and anxiety
of knowing not only that serious criminal charges were pending
against them, but also that their reputations had been sullied;
they appeared before the criminal court a number of times in the
pretrial period; and they endured the trial. The question thus
becomes: do these strictures, in the aggregate, constitute a
Fourth Amendment seizure sufficient to ground a section 1983
malicious prosecution claim?
In the classic formulation, a Fourth Amendment seizure
occurs "[o]nly when the officer, by means of physical force or
show of authority, has in some way restrained the liberty of a
citizen." Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968). In this
case, there was no physical force during the post-arraignment
period. The appellants' position, by default, is that their
liberty was restrained by a show of authority, manifested most
clearly by a series of orders to appear before the court. By
obeying these orders, the appellants assert, they yielded to a
show of authority, completing the seizure. Cf. California v.
Hodari D., 499 U.S. 621, 626 (1991) (holding that a show of
authority by a government actor does not constitute a seizure
unless the subject yields or submits to it).
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This proposition is counterintuitive. The very idea
of defining commonplace conditions of pretrial release as a
"seizure" for Fourth Amendment purposes seems to stretch the
accepted meaning of the term. After all, a seizure under Fourth
Amendment jurisprudence is generally a discrete event,
quintessentially an arrest, see id. at 624, or at least a
physical detention, see Terry, 392 U.S. at 16-19. Thus, seizure
jurisprudence traditionally has centered on the initial
deprivation of liberty that a seizure of the person entails.
Since "[a] seizure is a single act, and not a continuous fact,"
Hodari D., 499 U.S. at 625 (quoting Thompson v. Whitman, 85 U.S.
(18 Wall.) 457, 471 (1873)), run-of-the-mill conditions of
pretrial release do not fit comfortably within the recognized
parameters of the term.
Moreover, if the concept of a seizure is regarded as
elastic enough to encompass standard conditions of pretrial
release, virtually every criminal defendant will be deemed to be
seized pending the resolution of the charges against him. That
would mean, in turn, that nearly every malicious prosecution
claim could be brought before a federal court under the aegis of
section 1983. We believe that this is much too ambitious a view
of the law. Cf. Roche, 81 F.3d at 256 (indicating that "garden-
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variety" malicious prosecution claims are appropriately left to
state courts).
Despite these obvious conceptual problems, a concurring
opinion in Albright fully supports the claim that the appellants
were "seized" within the purview of the Fourth Amendment based
on their compliance with the obligation to appear in court at
the commonwealth's command. In that concurrence, Justice
Ginsburg advocated the position that an individual who is
released pending trial should be deemed "seized" because 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."
Albright, 510 U.S. at 279 (Ginsburg, J., concurring). Justice
Ginsburg understands this seizure to last as long as the charges
against the individual remain unadjudicated.6 Id. at 280.
Notwithstanding the eminence of its sponsor, the view
that an obligation to appear in court to face criminal charges
constitutes a Fourth Amendment seizure is not the law. No other
Justice joined Justice Ginsburg's opinion, and "the question
whether the Fourth Amendment continues to provide individuals
6
Justice Ginsburg went to some lengths to make this point,
as Albright itself involved a defendant who had been required to
post bond and had been placed under travel restrictions.
Albright, 510 U.S. at 268.
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with protection against the deliberate use of excessive physical
force beyond the point at which arrest ends and pretrial
detention begins," Graham v. Connor, 490 U.S. 386, 395 n.10
(1989), remains unresolved by the Supreme Court. Moreover, two
of our sister circuits have explicitly rejected Justice
Ginsburg's theory. See Riley v. Dorton, 115 F.3d 1159, 1162
(4th Cir. 1997) (en banc); Reed v. City of Chicago, 77 F.3d
1049, 1052 n.3 (7th Cir. 1996). Another has expressed grave
reservations concerning it. See Whiting v. Traylor, 85 F.3d
581, 584 (11th Cir. 1996).
This court, too, has declined to embrace the whole of
Justice Ginsburg's view. See Britton, 196 F.3d at 29-30. In
that case, a plaintiff alleging a section 1983 malicious
prosecution claim argued that he was seized for Fourth Amendment
purposes because he had received a summons in the mail. Id. at
29. Although Justice Ginsburg clearly would have accepted this
contention, see Albright, 510 U.S. at 279 (Ginsburg, J.,
concurring) (observing that a defendant is "seized" when bound
to appear for trial by a summons), we spurned it, writing:
Absent any evidence that Britton was
arrested, detained, restricted in his
travel, or otherwise subject to a
deprivation of his liberty before the
charges against him were dismissed, the fact
that he was given a date to appear in court
is insufficient to establish a seizure
within the meaning of the Fourth Amendment.
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Britton, 196 F.3d at 30. In making this determination, we
relied on cases such as Brower v. County of Inyo, 489 U.S. 593
(1989), in which the Court held that "[v]iolation of the Fourth
Amendment requires an intentional acquisition of physical
control," id. at 596, and that a Fourth Amendment seizure occurs
"only when there is a governmental termination of freedom of
movement through means intentionally applied," id. at 597
(emphasis omitted). We were unable to reconcile the limited
demands that the summons imposed on Britton with concepts such
as "physical control" and "termination of freedom of movement."
The case before us, though somewhat stronger, bears a
fairly resemblance to Britton. Canvassing the relevant time
frame, we find no evidence that the appellants were held after
the initiation of criminal proceedings, required to post a
monetary bond upon arraignment, subjected to restrictions on
their travel, or otherwise exposed to any significant
deprivation of liberty. While the imposition upon the
appellants here was marginally greater than the imposition upon
Britton — they were required to appear several times at the
court's behest (including an appearance for trial) — the fact
remains that the conditions of pretrial release to which they
were subjected simply do not approach the level necessary to
constitute a Fourth Amendment seizure.
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In an effort to persuade us to a contrary conclusion,
the appellants point to three decisions that have given some
degree of traction to Justice Ginsburg's concurrence. Their
bellwether case is Evans v. Ball, 168 F.3d 856 (5th Cir. 1999).
There, the Fifth Circuit determined that the plaintiff in a
Bivens action had alleged a seizure within the meaning of the
Fourth Amendment based on the following: (1) the plaintiff's
receipt of a summons to appear and answer to criminal charges;
(2) his being fingerprinted, photographed, and forced to sign a
personal recognizance bond; and (3) his being required to report
regularly to pretrial services, obtain permission before leaving
the state, and provide federal officers with financial and
identifying information. Id. at 860-61. The court concluded
that the restrictions imposed on the plaintiff diminished his
liberty interest enough to render him seized under the Fourth
Amendment. Id. at 861.
The appellants' other two cases are cut from much the
same cloth. In Gallo v. City of Philadelphia, 161 F.3d 217 (3d
Cir. 1998), the court, calling it a "close question," decided
that a section 1983 plaintiff had been seized in the
constitutional sense where he was required to post a $10,000
bond, attend all court hearings including his trial, contact
pretrial services weekly, and refrain from traveling outside New
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Jersey and Pennsylvania. Id. at 222. So too Murphy v. Lynn,
118 F.3d 938 (2d Cir. 1997), a two-to-one decision in which the
panel determined that a plaintiff's obligation to attend court
appointments, combined with a prohibition against leaving New
York, constituted a seizure within the meaning of the Fourth
Amendment. Id. at 945.
We need not comment upon the soundness of these
decisions. For present purposes, it suffices to say that they
are materially distinguishable. To mention the most glaring
difference, all three cases involved definitive restrictions on
the right to travel, and each of the courts in question placed
heavy emphasis on the salience of such a restriction as a
linchpin of a seizure. See Evans, 168 F.3d at 861-62; Gallo,
161 F.3d at 224; Murphy, 118 F.3d at 945-46. Conversely, no
such restriction was in force vis-à-vis the appellants. For
this reason, and because the aggregate deprivations involved in
Evans, Gallo, and Murphy substantially exceeded the overall
deprivation imposed here, we regard the cases as inapposite.
That ends this aspect of the matter. Given the
relatively benign nature of the pretrial release conditions
involved in this case, we hold that the appellants did not
suffer a post-arraignment seizure within the meaning of the
Fourth Amendment. It follows inexorably that, in the absence of
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an anchoring constitutional violation, the appellants' section
1983 malicious prosecution claim topples.
III. CONCLUSION
We need go no further.7 A ripe civil rights suit was
left to rot. Most of the appellants' claims are barred by the
operation of the statute of limitations; those that are not fail
for lack of a constitutionally significant deprivation. We
therefore affirm the district court's entry of summary judgment
on the appellants' federal claims.
Affirmed.
7
The appellants also complain that the district court
frustrated their efforts during pretrial discovery to question
McSweeney about other incidents of police brutality. They claim
that they had a good-faith basis for the queries (a 1997
investigatory report concluded that McSweeney had demonstrated
a pattern of needless provocation and excessive force in making
arrests) and that the information sought was relevant. But we
have concluded that the grant of summary judgment must be upheld
based on the statute of limitations (as to some claims) and the
lack of a constitutional deprivation (as to the remaining
claims), see supra Part II, and no amount of discovery anent
other incidents can alter this result. It is, therefore, a moot
point whether the discovery limitation was right or wrong.
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