No.

14-9496

In the Supreme Court of the United States

ELIJAH MANUEL, PETITIONER
v.
CITY OF JOLIET, ILLINOIS, ET AL.

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

DONALD B. VERRILLI, JR.

Solicitor General
Counsel of Record
BENJAMIN C. MIZER
Principal Deputy Assistant
Attorney General
IAN HEATH GERSHENGORN
Deputy Solicitor General
ILANA H. EISENSTEIN
Assistant to the Solicitor
General
DOUGLAS N. LETTER
BARBARA L. HERWIG
JOSHUA WALDMAN
RICHARD MONTAGUE
SIEGMUND F. FUCHS
Attorneys
Department of Justice
Washington, D.C. 20530-0001
[email protected]
(202) 514-2217
 QUESTION PRESENTED
Whether petitioner may bring a Fourth Amend-
ment claim, pursuant to 42 U.S.C. 1983, seeking dam-
ages for his pretrial detention pursuant to criminal
process where no probable cause existed because the
criminal charge was predicated on deliberately fabri-
cated evidence.

(I)
 TABLE OF CONTENTS
Page
Interest of the United States....................................................... 1
Constitutional and statutory provisions involved...................... 2
Statement ...................................................................................... 3
Summary of argument ................................................................. 7
Argument:
I. Pretrial detention based on fabricated evidence
and absent probable cause violates the Fourth
Amendment ...................................................................... 9
II. This Court should clarify that liability for a
Fourth Amendment claim of unlawful pretrial
detention under Section 1983 can be imposed
only in limited circumstances ....................................... 22
A. A Section 1983 Fourth Amendment claim for
unlawful pretrial detention requires proof
that defendants caused plaintiff ’s seizure,
pursuant to legal process, by conduct that
intentionally or recklessly disregarded the
lack of probable cause ........................................... 23
B. Any claim for unlawful pretrial detention
should be pleaded with specificity, and may
be barred by immunity or precluded by
“special factors” ..................................................... 29
Conclusion ................................................................................... 31

TABLE OF AUTHORITIES

Cases:

Albright v. Oliver, 510 U.S. 266

(1994) ................................................. 7, 10, 11, 12, 20, 22
Ashcroft v. Iqbal, 556 U.S. 662 (2009) ........................ 3, 29
Baker v. McCollan,443 U.S. 137 (1979) .............. 10, 14, 21
Beck v. Washington, 369 U.S. 541 (1962) ...................... 17
Bell v. Wolfish, 441 U.S. 520 (1979) ......................... 11, 21

(III)
 IV

Cases—Continued: Page
Bell Atl. Corp. v. Twombly, 550 U.S. 544
(2007) ............................................................................ 29
Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971) ............... 1, 30
Branzburg v. Hayes, 408 U.S. 665 (1972) ...................... 18
Briscoe v. LaHue, 460 U.S. 325 (1983) .......................... 21
Carey v. Piphus, 435 U.S. 247 (1978) ............................ 23
Castellano v. Fragozo, 352 F.3d 939 (5th Cir.2003),
cert. denied, 543 U.S. 808 (2004) ........................... 20, 22
County of Riverside v. McLaughlin, 500 U.S. 44
(1991) ............................................................................ 16
Crawford-El v. Britton, 523 U.S. 574 (1998) ................. 29
Franks v. Delaware, 438 U.S. 154
(1978) ..................................................... 16, 26, 27, 28, 29
Gerstein v. Pugh, 420 U.S. 103 (1975) ................... passim
Graham v. Connor, 490 U.S. 386 (1989) ............. 10, 21, 25
Hartman v. Moore, 547 U.S. 250 (2006) ............. 16, 22, 24
Hawkins v. Gage Cnty., 759 F.3d 951
(8th Cir. 2014) ............................................................... 27
Heck v. Humphrey, 512 U.S. 477
(1994) ..................................................... 22, 23, 24, 25, 26
Hein v. North Carolina, 135 S. Ct. 530 (2014) .............. 28
Hernandez-Cuevas v. Taylor, 723 F.3d 91
(1st Cir. 2013) ........................................ 13, 22, 24, 26, 27
Hurtado v. California, 110 U.S. 516 (1884) .................. 17
Illinois v. Gates, 462 U.S. 213 (1983) ............................ 26
Imbler v. Pachtman, 424 U.S. 409 (1976) ....... 9, 21, 24, 30
Kaley v. United States, 134 S. Ct. 1090 (2014) ........ 18, 26
Kelly v. Curtis, 21 F.3d 1544 (11th Cir. 1994) ............... 27
Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015) .......... 21
 V

Cases—Continued: Page
Lambert v. Williams, 223 F.3d 257 (4th Cir. 2000),
cert. denied, 121 S. Ct. 889 (2001) ......................... 20, 23
Lem Woon v. Oregon, 229 U.S. 586 (1913) .................... 13
Llovet v. City of Chicago, 761 F.3d 759 (7th Cir.
2014), cert. denied, 135 S. Ct. 1185 (2015) ................ 6, 7
Malley v. Briggs, 475 U.S. 335 (1986) ................. 25, 28, 30
Miller v. Sanilac Cty., 606 F.3d 240 (6th Cir. 2010) ..... 26
Moore v. Hartman, 571 F.3d 62 (D.C. Cir. 2009) ......... 27
National Archives & Records Admin. v. Favish,
541 U.S. 157 (2004) ....................................................... 29
Newsome v. McCabe, 256 F.3d 747 (7th Cir. 2001) ..... 6, 7
Parratt v. Taylor, 451 U.S. 527 (1981) ............................ 6
People v. Williams, 230 Ill. App. 3d 761
(1st Dist. 1992) ............................................................... 4
Pierce v. Gilchrist, 359 F.3d 1279 (10th Cir. 2004) ....... 23
Rehberg v. Paulk, 132 S. Ct. 1497 (2012) .. 9, 20, 23, 27, 30
Soldal v. Cook County., 506 U.S. 56 (1992) ................... 10
Stirone v. United States, 361 U.S. 212 (1960) ............... 17
Sykes v. Anderson, 625 F.3d 294 (6th Cir. 2004) .......... 25
United States v. Awadallah, 349 F.3d 42
(2d Cir. 2003), cert. denied, 543 U.S. 1056 (2005) ....... 27
United States v. Colkley, 899 F.2d 297
(4th Cir. 1990) ............................................................... 27
United States v. Halsey, 257 F. Supp. 1002
(S.D.N.Y. 1966)............................................................. 28
United States v. Martin, 615 F.2d 318
(5th Cir. 1980) ............................................................... 27
United States v. Salerno, 481 U.S. 739 (1987) ... 14, 16, 21
Walczyk v. Rio, 496 F.3d 139 (2d Cir. 2007).................. 28
Wallace v. Kato, 549 U.S. 384 (2007) ..................... passim
White v. Frank, 855 F.2d 956 (2d Cir. 1988) ................. 27
 VI

Cases—Continued: Page
Whitley v. Albers, 475 U.S. 312 (1986)........................... 21
Wilkie v. Robbins, 551 U.S. 537 (2007) .......................... 30
Wilson v. Russo, 212 F.3d 781 (3d Cir. 2000) ................ 27
Wolford v. Lasater, 78 F.3d 484 (10th Cir. 1996) .......... 27
Wyatt v. Cole, 504 U.S. 158 (1992) ................................. 23

Constitution, statutes and rules:

U.S. Const.:
Amend. I ..................................................................... 21, 22
Amend. IV ............................................................... passim
Amend. V ...................................................................... 6, 18
Due Process Clause ................................5, 7, 10, 16, 21
Grand Jury Clause .................................................... 17
Amend. VIII............................................................... 16, 21
Amend. XIV ..................................................................... 17
Illinois Controlled Substances Act, 720 Ill. Comp.
Stat. 570/402(c) (2010) .................................................... 3
725 Ill. Comp. Stat. (2010):
5/109-1 ................................................................................. 4
5/109-1(b)(4) ....................................................................... 4
18 U.S.C. 241 ..................................................................... 2
18 U.S.C. 242 ..................................................................... 2
18 U.S.C. 3142 ................................................................. 15
18 U.S.C. 3144 ................................................................. 15
18 U.S.C. 14141 ................................................................. 2
42 U.S.C. 1983 ......................................................... passim
Fed. R. Crim. P.:
Rule 3 ................................................................................ 15
Rule 4(a) ........................................................................... 15
Rule 5(a) ........................................................................... 15
 VII

Rules—Continued: Page
Rule 5(b) ........................................................................... 15
Rule 5(d) ........................................................................... 15
Rule 5.1 ............................................................................. 15
Rule 6 ................................................................................ 15
Rule 7(a) ........................................................................... 15
Rule 7(c) ........................................................................... 15
Rule 9(a) ........................................................................... 15
Miscellaneous:
2 Sara Sun Beale et al., Grand Jury Law and
Practice (2d ed. 2015) .................................................. 17
3 Dan B. Dobbs et al., The Law of Torts
(2d ed. 2011) ................................................................. 13
1 Nancy Hollander et al., Wharton’s Criminal
Procedure (14th ed. 2015) ............................................ 15
William P. Keeton et al., Prosser and Keeton on
the Law of Torts (5th ed. 1984) .................................... 24
8 Stuart M. Speiser et al., The American Law of
Torts (1991) .................................................................. 25
In the Supreme Court of the United States
No. 14-9496
ELIJAH MANUEL, PETITIONER
v.
CITY OF JOLIET, ILLINOIS, ET AL.

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

INTEREST OF THE UNITED STATES

The United States detains individuals awaiting
criminal prosecutions and thus has a substantial inter-
est in the scope of constitutional rights affecting such
detention.
The United States also has a substantial interest in
the circumstances in which federal officers can be
liable in civil actions for alleged violations of constitu-
tional rights and in the rules of pleading and proof for
such suits. Although this case involves a claim against
state officers under 42 U.S.C. 1983, this Court has
invoked its Section 1983 jurisprudence in cases involv-
ing the implied cause of action against federal officers
for the deprivation of constitutional rights, recognized
in Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971).
The United States prosecutes government employ-
ees and officials—mostly state and local law-

(1)
 2

enforcement officers—who willfully violate individu-

als’ constitutional rights under color of law, in viola-
tion of 18 U.S.C. 241 and 242. The United States also
brings civil actions against state and local law-
enforcement agencies under 42 U.S.C. 14141, which
authorizes the Attorney General to seek appropriate
relief to remedy a pattern or practice of law enforce-
ment officers’ violations of constitutional rights. Ac-
cordingly, the United States has a strong interest in
ensuring that these rights are carefully safeguarded
and clearly defined.
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The Fourth Amendment to the United States Con-
stitution provides: “The right of the people to be
secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not
be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and
the persons or things to be seized.” U.S. Const.
Amend. IV.
Section 1983 of Title 42 of the United States Code
provides, in pertinent part: “Every person who, under
color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of
Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceed-
ing for redress.”
 3
STATEMENT
1. On March 18, 2011, during a traffic stop, re-
spondent police officers for the City of Joliet, Illinois,
arrested petitioner for possession of ecstasy, a con-
trolled substance, after discovering a bottle of pills
during a pat down. First Am. Compl. ¶¶ 20-24 (J.A.
62, 64). According to the allegations in the complaint,
the bottle contained only vitamins, and the officers at
the scene conducted a field test that showed that the
pills did not contain any controlled substances. 1 Id.
¶¶ 38, 112-113 (J.A. 64, 69). Although the officers
knew the negative field-test results, petitioner was
arrested anyway. Id. ¶¶ 114-117 (J.A. 69-70). Back at
the police station, another officer again tested the
seized bottle of pills and again found that the pills
were not ecstasy or any other controlled substance.
Id. ¶¶ 121-122 (J.A. 70-71). The police reports none-
theless stated that the officers knew from their “train-
ing and experience” that the pills seized from peti-
tioner were ecstasy; the reports further stated that an
evidence technician tested the pills and the result was
positive for ecstasy. J.A. 91-92.
Later that same day, a City of Joliet police officer
swore out a criminal complaint charging petitioner
with unlawful possession of methylenedioxymetham-
phetamine (ecstasy), a controlled substance, in viola-
tion of the Illinois Controlled Substances Act, 720 Ill.
Comp. Stat. 570/402(c) (2010). 2 See J.A. 57. Petition-

1
Because the case comes to this Court on an appeal from the
district court’s order granting respondent’s motion to dismiss, the
complaint’s factual allegations must be taken as true. See Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009).
2
Illinois law requires that, within 48 hours of arrest, an arrestee
be brought before a judge who will determine whether probable
 4

er remained in jail following his arrest. First Am.

Compl. ¶¶ 132, 139 (J.A. 72).
On March 31, 2011, one of the respondent police of-
ficers testified to the positive ecstasy test result dur-
ing grand jury proceedings. J.A. 93-96 (grand jury
minutes). That same day, the grand jury returned an
indictment charging petitioner with unlawful posses-
sion of a controlled substance. J.A. 54-55.
On April 1, 2011, the drug laboratory issued a re-
port that the pills seized from petitioner were not
ecstasy and that they contained no controlled sub-
stances. J.A. 51. Petitioner was nonetheless ar-
raigned on April 8, 2011, and the drug charge against
him was not dismissed until May 4, 2011. Pet. App.
A2; see J.A. 48 (court order dismissing the drug
charge). Petitioner was released the next day. Pet.
App. A2. In all, petitioner was detained for some 48
days, from the date of his traffic stop and arrest
(March 18, 2011) until the day after charges were
dismissed (May 5, 2011).
2. On April 10, 2013, petitioner instituted this ac-
tion pro se under 42 U.S.C. 1983 against the City of
Joliet and various City of Joliet police officers. Peti-
tioner alleged, inter alia, that the officers violated his
Fourth Amendment rights by arresting him without
probable cause, by searching his car without probable
cause, and by using excessive force in carrying out the
arrest. Petitioner further alleged that the officers
“falsely imprison[ed] [him] beyond a preliminary hear-

cause exists for the arrest and ensure that the defendant is provid-
ed a copy of the charges and advised of his right to counsel. See
725 Ill. Comp. Stat. 5/109-1 (2010); People v. Williams, 230 Ill.
App. 3d 761 (1st Dist. 1992). An initial bail determination is also
made at that time. 725 Ill. Comp. Stat. 5/109-1(b)(4) (2010).
 5

ing,” First Am. Compl. ¶ 165 (J.A. 77), and unlawfully

“continue[d] detaining him in police custody,” even
though there “was no probable cause” to do so, id. at
¶¶ 174, 179 (J.A. 79-80). 3
3. The district court dismissed petitioner’s claims.
Pet. App. B1-B3. The court held that the applicable
two-year statute of limitations barred petitioner’s
false arrest and excessive force claims relating to the
arrest itself. Those claims accrued on March 18, 2011
(the day of petitioner’s arrest), at the time of petition-
er’s initial appearance on the criminal complaint, see
Wallace v. Kato, 549 U.S. 384, 388-390 (2007), and
petitioner waited more than two years after that date
to file his civil complaint in district court. Pet. App.
B1-B2; see also id. at A2.4
The district court also dismissed petitioner’s “mali-
cious prosecution” claim that challenged his pretrial
detention following the institution of criminal charges.
The court understood petitioner to bring that claim
solely under the Fourth Amendment. Pet. App. B2.
Applying Seventh Circuit precedent, the court held

3
Petitioner’s complaint challenged his pretrial detention under
both the Due Process Clause and the Fourth Amendment. See
First Am. Compl. ¶¶ 165-167 (Count V) (J.A. 77-78); id. ¶¶ 174, 176
(Count VII) (J.A. 79); see also Pl.’s Modified Resp. in Opp. to
Defs.’ 12(b)(6) Mot. to Dismiss 2 (“Plaintiff has a non-time-barred
Fourth Amendment or Due Process claim.”). He disclaimed
reliance on due process in subsequent district court proceedings,
see Pet. App. B2, and did not pursue a due process claim in his
petition for a writ of certiorari, see Pet. i.
4
For petitioner’s Section 1983 claims, the district court adopted
Illinois’s two-year statute of limitations for personal injuries,
which petitioner did not dispute below. See Wallace, 549 U.S. at
388-390 (state statute of limitations applies in a Section 1983
federal cause of action).
 6

that such a claim is not cognizable under the Fourth

Amendment, and that any due process claim is una-
vailable where state law provides an adequate remedy
(which, the court concluded, Illinois law does). Ibid.
(citing Newsome v. McCabe, 256 F.3d 747 (7th Cir.
2001)).
4. The court of appeals affirmed, holding that peti-
tioner’s Fourth Amendment claim was properly dis-
missed. Pet. App. A1-A4. The court found that, under
circuit precedent, the Fourth Amendment does not
apply to detention after arraignment. 5 Id. at A3-A4.
Rather, the court explained, “once detention by rea-
son of arrest turns into detention by reason of ar-
raignment * * * the Fourth Amendment falls out of
the picture and the detainee’s claim that the detention
is improper becomes a claim of malicious prosecution
violative of due process.” Id. at A4 (quoting Llovet v.
City of Chicago, 761 F.3d 759, 763 (7th Cir. 2014), cert.
denied, 135 S. Ct. 1185 (2015)). Even though ten other
courts of appeals had “recognized federal malicious-
prosecution claims under the Fourth Amendment,”
the court found no “compelling reason to overrule” its
precedent barring such claims. Id. at A3-A4.
In Newsome and Llovet, the court of appeals had
applied the reasoning of Parratt v. Taylor, 451 U.S.

5
The Seventh Circuit uses the term “arraignment” as shorthand
for the proceeding at which “the person arrested becomes detained
pursuant to legal process,” whereby “a judicial officer determines
that there is probable cause to hold him for trial unless he makes
bail.” Llovet v. City of Chicago, 761 F.3d 759, 760 (7th Cir. 2014),
cert. denied, 135 S. Ct. 1185 (2015). “Arraignment” in this case
occurred on March 18, 2011, the same day as petitioner’s arrest,
when petitioner had his first appearance on the criminal complaint.
On April 8, 2011, petitioner was arraigned on the indictment. Pet.
App. A2.
 7

527, 535-544 (1981), to hold that a federal due process

claim for malicious prosecution “is not actionable
* * * as long as the state provides an adequate rem-
edy for the wrongful act of its employee.” Llovet, 761
F.3d at 761; Newsome, 256 F.3d at 750-751 (citing
Albright v. Oliver, 510 U.S. 266, 281-286 (1994) (Ken-
nedy, J., joined by Thomas, J., concurring)). Applying
this rule, the court concluded that petitioner could not
bring his malicious prosecution claim under the Due
Process Clause because “Illinois has an adequate
remedy.” Pet. App. A4.
SUMMARY OF ARGUMENT
This Court has “never explored the contours of a
Fourth Amendment malicious-prosecution suit under
[Section] 1983,” Wallace v. Kato, 549 U.S. 384, 390 n.2
(2007), and has noted “an embarrassing diversity of
judicial opinion” on the subject, Albright v. Oliver, 510
U.S. 266, 270 n.4 (1994) (plurality opinion) (citations
omitted). The Court should now resolve the uncer-
tainty and hold that the Fourth Amendment estab-
lishes the minimum constitutional “standard[] and
procedure[],” Gerstein v. Pugh, 420 U.S. 111 (1975),
for pretrial detention pursuant to legal process—a
determination by a magistrate or grand jury of proba-
ble cause of a criminal violation.
1. Petitioner’s claim, as it is narrowly drafted, falls
under the Fourth Amendment: it seeks damages only
for his pretrial detention predicated on findings of
probable cause that were based on respondent offic-
ers’ alleged fabrication of evidence.
The court of appeals incorrectly concluded that the
start of legal process necessarily alters that analysis.
The institution of formal criminal charges or the issu-
ance of a judicially-authorized arrest warrant initiates
 8

criminal proceedings. If founded on a valid judicial or

grand jury determination of probable cause, that legal
process will also satisfy, rather than eliminate, the
Fourth Amendment prerequisites for pretrial deten-
tion. See Gerstein v. Pugh, 420 U.S. 103 (1975). The
Fourth Amendment does not govern the decision to
pursue criminal charges, but only any resulting deten-
tion. Similarly, the Fourth Amendment sets the min-
imum standard for pretrial detention even if a juris-
diction adopts additional or more rigorous procedures
for detention or for the institution or continuation of
criminal charges, including indictment by grand jury.
Application of the Fourth Amendment to pretrial
detention is consistent with Wallace, which used the
start of legal process to distinguish the common-law
tort of false imprisonment from the common-law tort
of malicious prosecution for purposes of determining a
claim’s accrual date and calculating the statute of
limitations. 549 U.S. at 388-390. That analogy to
common-law torts had no bearing on the applicable
constitutional right, the violation of which is the foun-
dation of any Section 1983 claim.
2. This Court should also provide guidance on the
elements of and pleading requirements for a Fourth
Amendment claim of unlawful pretrial detention—
issues that have proved more vexing for the lower
courts than the identification of the applicable consti-
tutional right. Indeed, with the exception of the Sev-
enth Circuit, the courts of appeals have broadly
agreed after Albright that the Fourth Amendment
applies to pretrial detention beyond the start of legal
process, yet have struggled with the precise elements
of a damages claim to vindicate that right.
 9

This Court should further clarify that liability can

be imposed only in limited circumstances. Specifical-
ly, a plaintiff must prove that the defendant caused
him to be seized pursuant to legal process that was
unsupported by probable cause, and that the criminal
proceedings terminated in his favor. And, to over-
come the presumption of probable cause established
by a grand jury’s indictment or a magistrate judge’s
neutral determination, a plaintiff must also prove that
the defendant acted with intent to deceive or with
reckless disregard as to the absence of probable
cause. For example, a plaintiff might overcome the
presumption of probable cause by demonstrating, as
petitioner alleges here, that officers deliberately fab-
ricated the evidence on which criminal charges and
pretrial detention were predicated.
The plaintiff further must plead these elements
with sufficient specificity. Defenses of immunity,
absolute or qualified, may also shield defendants from
liability, and operate with particular force to protect
from suit the exercise of prosecutorial discretion,
Imbler v. Pachtman, 424 U.S. 409, 424-430 (1976), and
testimony before a grand jury, Rehberg v. Paulk, 132
S. Ct. 1497, 1502-1505 (2012).
ARGUMENT
I. PRETRIAL DETENTION BASED ON FABRICATED
EVIDENCE AND ABSENT PROBABLE CAUSE VIO-
LATES THE FOURTH AMENDMENT
The Fourth Amendment governs petitioner’s nar-
row claim, which alleges that his pretrial detention
pursuant to a judicial finding of probable cause was
based on deliberately fabricated information.
A. Section 1983 establishes a federal cause of ac-
tion for “the deprivation of any rights, privileges, or
 10

immunities secured by the Constitution and laws” by

any person acting under color of state law. 42 U.S.C.
1983. Section 1983, therefore, “is not itself a source of
substantive rights”; rather, the first step in evaluating
a Section 1983 claim is to identify the specific constitu-
tional right allegedly infringed. See Albright v. Oli-
ver, 510 U.S. 266, 271 (1994) (plurality opinion) (cita-
tion omitted); see also Baker v. McCollan, 443 U.S.
137, 140 (1979) (“The first inquiry in any [Section]
1983 suit” is “to isolate the precise constitutional vio-
lation with which [the defendant] is charged.”). As
narrowly pleaded, petitioner’s claim falls under the
Fourth Amendment.
Petitioner remained in jail from March 18, 2011
(the date of petitioner’s arrest, the filing of the sworn
criminal complaint, and the magistrate judge’s initial
bail determination), until May 5, 2011 (the day after
charges were dismissed). Petitioner challenges his
pretrial detention under the Fourth Amendment on
the ground that probable cause to detain never exist-
ed, because the respondent officers allegedly fabricat-
ed the evidence against him. 6 And he seeks damages

6
Petitioner neither preserved his due process theory below, see
Pet. App. B2, nor presented a due process claim in his petition for
a writ of certiorari, see Pet. i. This Court therefore need not
decide whether petitioner could have also brought his challenge as
a procedural due process claim, see Soldal v. Cook Cnty., 506 U.S.
56, 70 (1992) (“Certain wrongs affect more than a single right and,
accordingly, can implicate more than one of the Constitution’s
commands.”), or whether the Fourth Amendment provides the
exclusive textual source of constitutional protection in these cir-
cumstances, cf. Graham v. Connor, 490 U.S. 386, 395 (1989); see
also Albright, 510 U.S. at 275 (plurality opinion) (declining to
decide “whether petitioner’s claim would succeed under the Fourth
 11

for the harms caused by that detention. Pet. App. A1-

A2. Petitioner’s allegations do not involve detention
based on other findings, such as dangerousness, flight
risk, or actual guilt. Nor does petitioner seek damag-
es for lesser restraints on liberty, such as release on
bail or restrictions on travel. 7 See Gerstein v. Pugh,
420 U.S. 103, 125 n.26 (1975); see also Pet. Br. 13
(“[T]he gravamen of the claim is unlawful detention,
not the mere filing of baseless charges.”).
Finally, petitioner alleges that the respondent of-
ficers fabricated the critical evidence against him
deliberately. See First Am. Compl. ¶¶ 114-117, 121-
122 (J.A. 69-70). This case therefore does not involve
a claim that the officers collected evidence negligently
or believed mistakenly that probable cause existed.
The Fourth Amendment speaks directly to pretrial
detention authorized solely because of a judicial find-
ing of probable cause. A magistrate judge’s affir-
mance of the existence of probable cause constitutes
the “standard[] and procedure[]” dictated by the
Fourth Amendment for “arrest and detention.” Ger-
stein, 420 U.S. at 111 (emphasis added). This Court in
Gerstein therefore held that “a State * * * must
provide a fair and reliable determination of probable
cause as a condition for any significant pretrial re-
straint of liberty.” Id. at 125 (emphasis added); Bell v.

Amendment,” when petitioner did “not present[] that question in

his petition for certiorari”).
7
This Court therefore need not resolve whether pretrial re-
strictions on liberty short of physical detention, even if predicated
solely on a finding of probable cause, implicate the Fourth
Amendment. Cf. Albright, 510 U.S. at 280 (Ginsburg, J., concur-
ring) (arguing that, for purposes of the Fourth Amendment, plain-
tiff “remained effectively ‘seized’ for trial so long as the prosecu-
tion against him remained pending”).
 12

Wolfish, 441 U.S. 520, 536 (1979) (“A person lawfully

committed to pretrial detention has not been adjudged
guilty of any crime. He has had only a ‘judicial de-
termination of probable cause as a prerequisite to
[the] extended restraint of [his] liberty following ar-
rest.’ ”) (brackets in original) (quoting Gerstein, 420
U.S. at 114).
Application of the Fourth Amendment under such
circumstances also is consistent with the view ad-
vanced by the plurality in Albright, which observed
that “[t]he Framers considered the matter of pretrial
deprivations of liberty and drafted the Fourth
Amendment to address it.” 510 U.S. at 274. Relying
on Gerstein, the plurality “noted the Fourth Amend-
ment’s relevance to the deprivations of liberty that go
hand in hand with criminal prosecutions.” Ibid. And
although “the accused is not ‘entitled to judicial over-
sight or review of the decision to prosecute,’ ” the
plurality found that the Fourth Amendment has sig-
nificance where a defendant is “not merely charged,”
but is also arrested and detained.8 Ibid. (quoting
Gerstein, 420 U.S. at 118-119). In other words, what
is actionable under the Fourth Amendment is not the
decision to pursue criminal charges, but only petition-
er’s detention absent a valid probable cause determi-
nation. 9 Except in the Seventh Circuit, there is

8
Justice Souter provided a fifth voice in Albright in support of
the Fourth Amendment’s application to an unlawful “arrest or
other Fourth Amendment seizure” that follows the “formality of
filing an indictment, information, or complaint.” 510 U.S. at 290
(Souter, J., concurring).
9
This Court has never determined that probable cause is a con-
stitutional prerequisite to prosecution, and left that question open
in Albright. See 510 U.S. at 274 (plurality opinion); id. at 282
 13

“broad consensus among the circuits that the Fourth

Amendment right to be free from seizure but upon
probable cause extends through the pretrial period.”
Hernandez-Cuevas v. Taylor, 723 F.3d 91, 99 (1st Cir.
2013) (collecting cases).
B. Contrary to the decision below, the Fourth
Amendment does not “fall[] out of the picture,” Pet.
App. A4, after the start of legal process. A defendant
is held pursuant to legal process “when, for example,
he is bound over by a magistrate or arraigned on
charges.” Wallace v. Kato, 549 U.S. 384, 389 (2007)
(citation omitted); Lem Woon v. Oregon, 229 U.S. 586,
589 (1913) (“When we speak of charging a person with
the commission of a crime, we ordinarily mean the
commencement of the proceeding, by the filing of a
written complaint or accusation.”) (citation omitted);
see also 3 Dan B. Dobbs et al., The Law of Torts § 587
(2d ed. 2011) (updated 2015) (“[A] criminal proceeding
must be formally begun by issuance of criminal pro-
cess, by an indictment, or at least by an official arrest
on a criminal charge. Almost any kind of criminal
proceeding will qualify.”).
A valid criminal charge—whether instituted by
sworn complaint or by return of an indictment sup-
ported by probable cause—does not displace the
Fourth Amendment, but rather satisfies it. As Ger-
stein recognized, the same Fourth Amendment stand-
ard and procedure that may be used to secure an

(Kennedy, J., concurring) (“The specific provisions of the Bill of

Rights neither impose a standard for the initiation of a prosecu-
tion, * * * nor require a pretrial hearing to weigh evidence
according to a given standard.”); Gerstein, 420 U.S. at 119 (“[A]
judicial hearing is not prerequisite to prosecution.”) (citations
omitted).
 14

arrest warrant also justifies pretrial detention. 420

U.S. at 120 (“The sole issue is whether there is proba-
ble cause for detaining the arrested person pending
further proceedings. * * * The standard is the same
as that for arrest.”); see Baker, 443 U.S. at 143 (“[T]he
probable-cause standard for pretrial detention is the
same as that for arrest, a person arrested pursuant to
a warrant issued by a magistrate on a showing of
probable cause is not constitutionally entitled to a
separate judicial determination that there is probable
cause to detain him pending trial.”). 10 If officers cause
detention by intentionally misleading a magistrate or
grand jury into concluding that probable cause exists,
that basic Fourth Amendment standard is violated,
whether the officers’ misconduct occurred while pro-
curing an arrest warrant, a Gerstein determination, or
an indictment unsupported by probable cause.
The Fourth Amendment’s role in setting that
threshold standard for pretrial detention is not elimi-
nated because additional factors may also bear on
whether a defendant will remain detained or be re-
leased on conditions pending trial, see, e.g., United

10
The Court in Baker, for example, found no constitutional viola-
tion where a suspect was detained for nine days pursuant to a
facially valid warrant notwithstanding his claims of innocence and
mistaken identity. 443 U.S. at 143-144. The Fourth Amendment
was satisfied by the initial probable cause determination and,
“[a]bsent an attack on the validity of the warrant under which he
was arrested,” this Court found no constitutional violation had
been alleged for the defendant’s continued pretrial detention.
Ibid. Baker observed that pretrial detention normally will be
constitutional if a person was detained pursuant to a warrant
“conforming * * * to the requirements of the Fourth Amend-
ment,” and if he were afforded the right to a speedy trial. Id. at
144-146.
 15

States v. Salerno, 481 U.S. 739 (1987); 18 U.S.C. 3142,

3144 (requiring detention hearing and enumerating
factors governing pretrial detention and release con-
ditions in federal cases), or because a subsequent
proceeding—including an adversarial preliminary
hearing, see, e.g., Fed. R. Crim. P. 5.1, or indictment
by grand jury, see U.S. Const. Amend. V—is required
for charges to proceed to trial. Establishing a con-
sistent role for the Fourth Amendment in authorizing
pretrial detention is particularly important because
“state systems of criminal procedure vary widely” in
their processes for determining probable cause. 11 Ger-
stein, 420 U.S. at 123; see, e.g., 1 Nancy Hollander et
al., Wharton’s Criminal Procedure § 7.2 (14th ed.
2015). Jurisdictions are free to go beyond the consti-
tutional minimum, but such additional measures sup-
plement, rather than supplant, the Fourth Amend-
ment right to a neutral determination of probable
cause, which is the basic prerequisite for pretrial
detention. See Gerstein, 420 U.S. at 124-125 (“What-

11
In the federal system, the initial probable cause determination
may be made in one of three ways: (1) a defendant may be charged
by an indictment, Fed. R. Crim. P. 6, 7(a) and (c), after which an
arrest warrant must issue (unless the government requests a
summons), Fed. R. Crim. P. 9(a); (2) a defendant may be charged
by criminal complaint, resulting in the issuance of an arrest war-
rant if the complaint is supported by an affidavit establishing
probable cause for the offense, Fed. R. Crim. P. 3, 4(a); or (3) a
defendant may be arrested without warrant, upon probable cause
alone, in which case, a criminal complaint “must be promptly filed.”
Fed. R. Crim. P. 5(b). Regardless of the procedure justifying the
arrest, upon seizure, a defendant must be brought before a magis-
trate judge for an initial appearance “without unnecessary delay”
to be informed, inter alia, of the charges against him. Fed. R.
Crim. P. 5(a) and (d).
 16

ever procedure a State may adopt, it must provide a

fair and reliable determination of probable cause as a
condition for any significant pretrial restraint of liber-
ty.”) (emphasis added); see also County of Riverside v.
McLaughlin, 500 U.S. 44, 55 (1991) (“Gerstein permits
jurisdictions to incorporate probable cause determina-
tions into other pretrial procedures.”).
A subsequent and independent determination of
probable cause nonetheless may have substantial
relevance to the pleading and proof of a Fourth
Amendment claim for unlawful pretrial detention.
For example, a plaintiff must allege a causal link con-
necting the malfeasance (here, the fabrication of evi-
dence), the institution of process, and his detention.
See Pt. II.A, infra. If independent and untainted
evidence sufficient to establish probable cause of a
criminal violation were presented before the grand
jury or at a subsequent preliminary hearing, the ele-
ments of a Fourth Amendment claim would not be
satisfied. Cf. Hartman v. Moore, 547 U.S. 250, 252
(2006) (The “want of probable cause must be alleged
and proven” by a plaintiff bringing a Bivens or Sec-
tion 1983 claim for retaliatory prosecution.). Related-
ly, the Fourth Amendment does not govern allega-
tions that a government agent subverted other pretri-
al procedures not mandated by the Fourth Amend-
ment; nor does it pertain to the falsification of evi-
dence that is not essential to the probable cause de-
termination. See, e.g., Salerno, 481 U.S. 739 (evaluat-
ing the federal detention statute under the Due Pro-
cess Clause and the Eighth Amendment); Franks v.
Delaware, 438 U.S. 154, 171-172 (1978) (no evidentiary
hearing required on Fourth Amendment challenge to
a search warrant if “material that is the subject of the
 17

alleged falsity or reckless disregard is set to one side”

and “there remains sufficient content in the warrant
affidavit to support a finding of probable cause”); see
also Gerstein, 420 U.S. at 119-120 (observing that a
preliminary hearing in “some jurisdictions * * *
may approach a prima facie case of guilt” and may
entail complex and adversarial proceedings beyond
the informal, ex parte procedure required by the
Fourth Amendment).
The Fourth Amendment may also be implicated by
arrest and pretrial detention predicated on an indict-
ment returned by a grand jury that was based on
deliberately fabricated evidence. To be sure, the right
to indictment by grand jury for federal felony offenses
is found in the Fifth Amendment, not the Fourth
Amendment. 12 U.S. Const. Amend. V; see Stirone v.
United States, 361 U.S. 212, 215 (1960). Nonetheless,
an indictment “ ‘fair upon its face,’ and returned by a
‘properly constituted grand jury,’ conclusively deter-
mines the existence of probable cause.” Gerstein, 420
U.S. at 117 n.19 (citation omitted). As a result, “a
grand jury’s judgment” may “substitute for that of a
neutral and detached magistrate” to justify the de-

12
The Grand Jury Clause of the Fifth Amendment provides, “No
person shall be held to answer for a capital, or otherwise infamous
crime, unless on a presentment or indictment of a Grand Jury.”
U.S. Const. Amend. V. The Grand Jury Clause, however, has not
been incorporated into the Fourteenth Amendment applicable to
the States. See Hurtado v. California, 110 U.S. 516, 537-538
(1884); see also Beck v. Washington, 369 U.S. 541, 545 (1962)
(“[T]his Court has consistently held that there is no federal consti-
tutional impediment to dispensing entirely with the grand jury in
state prosecutions.”). Only a minority of States require indictment
by grand jury for all felony offenses. See 2 Sara Sun Beale et al.,
Grand Jury Law and Practice § 8:2 (2d ed. 2015).
 18

fendant’s arrest and detention under the Fourth

Amendment. Ibid.; accord Kaley v. United States, 134
S. Ct. 1090, 1098 (2014) (“[A]n indictment eliminates
[a defendant’s] Fourth Amendment right to a prompt
judicial assessment of probable cause to support any
detention” because “[that body’s] judgment substi-
tute[s] for that of a neutral and detached magistrate.”)
(quoting Gerstein, 420 U.S. at 117 n.19). In a federal
case, a returned indictment thus serves a dual consti-
tutional purpose: it constitutes a probable cause de-
termination by a neutral factfinder for purposes of the
Fourth Amendment, and it fulfills the Fifth Amend-
ment guarantee of indictment by grand jury for felony
offenses. See Branzburg v. Hayes, 408 U.S. 665, 686-
687 (1972) (“[T]he ancient role of the grand jury
* * * has the dual function of determining if there is
probable cause to believe that a crime has been com-
mitted and of protecting citizens against unfounded
criminal prosecutions.”).
Absent the sort of intentional malfeasance by a
government affiant or witness alleged by petitioner,
the threshold Fourth Amendment requirements for
pretrial detention normally will be fulfilled at the
outset of the legal process by virtue of an arrest war-
rant, Gerstein hearing, or indictment. But where that
initial probable cause determination is subverted,
pretrial detention may violate the Fourth Amend-
ment.
C. Wallace is consistent with this framework.
Wallace held that the start of legal process demar-
cates the time when the common-law tort of false
imprisonment ends and the separate common-law tort
of malicious prosecution begins. See 549 U.S. at 389-
390 (“[F]alse imprisonment” is “detention without
 19

legal process,” while “malicious prosecution” “reme-

dies detention accompanied, not by absence of legal
process, but by wrongful institution of legal pro-
cess.”) (citation omitted). The distinction between
these common-law torts was relevant in Wallace only
because common-law tort principles inform the accru-
al of the claim and determine whether the statute of
limitations has expired. 13 Id. at 388. That distinction
had no bearing, however, on the applicable constitu-
tional right, and the Court in Wallace expressly de-
clined to decide whether “such a claim is cognizable
under [Section] 1983.” Id. at 390 n.2.
Petitioner’s claim may, under Wallace, be most
closely analogous to the common-law tort of “mali-
cious prosecution,” but petitioner does not seek dam-
ages for his “prosecution” standing alone. Instead, he
seeks damages for his pretrial detention pursuant to
criminal charges. And although the common-law tort
of malicious prosecution may, by analogy, inform the
elements and prerequisites of a Section 1983 claim,
see Pt. II.A, infra, the term “malicious prosecution”
nonetheless tends to obscure rather than elucidate the
constitutional basis for petitioner’s claim, and pro-

13
For this reason, the district court correctly dismissed as time-
barred petitioner’s allegations challenging his warrantless arrest,
since that claim, akin to common-law “false arrest,” accrued when
legal process began. See Wallace, 549 U.S. at 389-390. Petitioner
was charged with a criminal offense the same day as his arrest—
March 18, 2011—more than two years before his April 22, 2013,
complaint was filed (and thus beyond the applicable statute of
limitations under Illinois law). See Pet. App. A2, B1. Petitioner’s
claim for unlawful pretrial detention after the initiation of criminal
process was timely, however, because it did not accrue until the
drug charge was dismissed on May 4, 2011. See Wallace, 549 U.S
at 389-390; see also Pet. App. A2.
 20

vides no insight into whether that claim is properly

scrutinized under the Fourth Amendment. See Cas-
tellano v. Fragozo, 352 F.3d 939, 953-954 (5th Cir.
2003) (en banc) (“The initiation of criminal charges
without probable cause may set in force events that
run afoul of explicit constitutional protection—the
Fourth Amendment if the accused is seized and ar-
rested, for example, * * * they are not claims for
malicious prosecution and labeling them as such only
invites confusion.”), cert. denied, 543 U.S. 808 (2004);
see also Rehberg v. Paulk, 132 S. Ct. 1497, 1504-1505
(2012) (“[T]he Court has not suggested that [Section]
1983 is simply a federalized amalgamation of pre-
existing common-law claims.”).
The fact that distinct claims may arise under Sec-
tion 1983 as vehicles for the vindication of constitu-
tional rights—e.g., false arrest, false imprisonment,
excessive force, or malicious prosecution—does not
mean that each of those claims must be supported by a
different constitutional amendment; all may fall under
the Fourth Amendment if properly pleaded. See
Lambert v. Williams, 223 F.3d 257, 261-262 (4th Cir.
2000) (Even where a claim was “styled * * * as a
[Section] 1983 malicious prosecution claim,” the court
would “not treat [it] as separate and distinct from the
appellant’s constitutional allegations”; “rather, the
foundation for his claim was a seizure that was viola-
tive of the Fourth Amendment.”) (citation and internal
quotation marks omitted), cert. denied, 531 U.S. 1130
(2001); see also Albright, 510 U.S. at 277 n.1 (Gins-
burg, J., concurring) (“[T]he constitutional tort 42
U.S.C. § 1983 authorizes stands on its own, influenced
by the substance, but not tied to the formal categories
and procedures, of the common law.”).
 21

Similarly, not every claim relating to pretrial de-

tention necessarily invokes the Fourth Amendment.
Close scrutiny of the nature of the claim, including
examination of what process was undermined by the
government agent’s alleged bad acts, will determine
what, if any, constitutional amendment will apply. See
Graham v. Connor, 490 U.S. 386, 393-394 (1989); see
also Baker, 443 U.S. at 140 (“The first inquiry in any
[Section] 1983 suit” is “to isolate the precise constitu-
tional violation with which [the defendant] is
charged.”). A plaintiff may, for example, allege that
the use of fabricated evidence at trial violated his
constitutional rights, Briscoe v. LaHue, 460 U.S. 325,
326 n.1 (1983) (“knowing use of perjured testimony
violates due process”); 14 or he may challenge excessive
use of force against him as a pretrial detainee, see
Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473 (2015)
(Due Process Clause), a ban on hardcover books for
pretrial detainees, see Bell, 441 U.S. at 548-552 (First
Amendment), denial of release on bail pending trial,
see Salerno, 481 U.S. 739 (due process and Eighth
Amendment), or the nature of his punishment after
conviction, see Whitley v. Albers, 475 U.S. 312 (1986)
(Eighth Amendment).
Petitioner’s claim for damages here targets only
his pretrial detention and is predicated on allegations
that probable cause never existed to justify that de-
tention because the evidence against him was inten-
tionally fabricated from the outset of legal proceed-
ings. That claim specifically invokes the Fourth
Amendment. The court of appeals erred by foreclos-

14
A damages action against the prosecutor for using fabricated
evidence at trial would be barred by absolute immunity. Imbler v.
Pachtman, 424 U.S. 409 (1976).
 22

ing that claim as not cognizable under the Fourth

Amendment, and its decision should therefore be
reversed.
II. THIS COURT SHOULD CLARIFY THAT LIABILITY
FOR A FOURTH AMENDMENT CLAIM OF UNLAW-
FUL PRETRIAL DETENTION UNDER SECTION 1983
CAN BE IMPOSED ONLY IN LIMITED CIRCUM-
STANCES
Whether petitioner’s claim is cognizable depends
not only on the locus of the constitutional right, but
also on the elements of a Fourth Amendment claim for
unlawful pretrial detention under Section 1983. This
Court has addressed individual elements of the com-
mon-law malicious prosecution tort. See, e.g., Heck v.
Humphrey, 512 U.S. 477, 484 (1994) (favorable termi-
nation of prior criminal prosecution required if suc-
cessful Section 1983 suit would imply invalidity of a
prior conviction); Hartman, 547 U.S. at 261-266 (ab-
sence of probable cause a necessary element of a First
Amendment “retaliatory-prosecution” claim). But the
Court has thus far declined to resolve “the contours of
a Fourth Amendment malicious-prosecution suit un-
der [Section] 1983.” Wallace, 549 U.S. at 390 n.2; see
Albright, 510 U.S. at 275 (plurality opinion) (“ex-
press[ing] no view as to whether petitioner’s claim
would succeed under the Fourth Amendment”).
Since Albright, the courts of appeals have strug-
gled to translate the constitutional right under the
Fourth Amendment into the elements of a constitu-
tional tort under Section 1983. See Hernandez-
Cuevas, 723 F.3d at 99 (“[T]he circuits are divided
over the elements of such a claim.”); Castellano, 352
F.3d at 945 (“We have been inexact in explaining the
elements of a claim for malicious prosecution brought
 23

under the congressional grant of the right of suit

under 42 U.S.C. § 1983. We are not alone.”); Lambert,
223 F.3d at 261 (observing that “[i]n the wake of Al-
bright, the courts of appeals have diverged” on the
existence of a Section 1983 “malicious prosecution”
claim and its elements).
The Court should now provide guidance to the
courts below and clarify the limited circumstances in
which liability is appropriate and the rigorous plead-
ing requirements that apply to such claims.
A. A Section 1983 Fourth Amendment Claim For Unlaw-
ful Pretrial Detention Requires Proof That Defend-
ants Caused Plaintiff’s Seizure, Pursuant To Legal
Process, By Conduct That Intentionally Or Recklessly
Disregarded The Lack Of Probable Cause
Section 1983 permits a claim only “for injuries
caused by the deprivation of constitutional rights,”
Carey v. Piphus, 435 U.S. 247, 254 (1978), and there-
fore “does not provide a federal cause of action for
every violation of state common law,” Pierce v.
Gilchrist, 359 F.3d 1279, 1285 (10th Cir. 2004). See
Rehberg, 132 S. Ct. at 1504-1505. Nonetheless, “[i]n
some cases, the interests protected by a particular
branch of the common law of torts may parallel closely
the interests protected by a particular constitutional
right.” Carey, 435 U.S. at 258. For that reason, com-
mon-law tort principles provide the “starting point”
for “defining the elements of damages and the pre-
requisites for their recovery” under federal law, id. at
257-258, including accrual and tolling, see Wallace,
549 U.S. at 388; Heck, 512 U.S. at 489-490, and im-
munities from suit, see Wyatt v. Cole, 504 U.S. 158,
163-164 (1992). See generally Rehberg, 132 S. Ct. at
1502 (“[T]his Court has long recognized that [Section
 24

1983] was not meant to effect a radical departure from

ordinary tort law and the common-law immunities
applicable in tort suits.”); Imbler v. Pachtman, 424
U.S. 409, 418 (1976) (“[Section] 1983 is to be read in
harmony with general principles of tort immunities
and defenses rather than in derogation of them.”). In
other words, common-law principles guide the inquiry,
but do not control it. Hartman, 547 U.S. at 258
(“[T]he common law is best understood here more as a
source of inspired examples than of prefabricated
components of Bivens torts.”). 15
The courts of appeals largely agree that a plaintiff
can establish liability under Section 1983 for a Fourth
Amendment claim for unlawful pretrial detention
pursuant to legal process only by showing that the
defendants (1) caused (2) a seizure of the plaintiff (3)
pursuant to legal process initiated against the plaintiff
(4) that was unsupported by probable cause, and (5)
that resolved in the plaintiff’s favor. 16 See Hernan-

15
Notwithstanding the strong association between the Fourth
Amendment and the common-law tort of malicious prosecution,
they are not a perfect fit. Most prominently, a common-law claim
of malicious prosecution does not have seizure as an element—a
necessary component of a Fourth Amendment claim. See William
P. Keeton et al., Prosser and Keeton on the Law of Torts 874-885
(5th ed. 1984) (elements of prima facie malicious-prosecution claim
include (1) the initiation or maintenance of a proceeding against
the plaintiff by the defendant; (2) termination of that proceeding in
favor of the accused; (3) an absence of probable cause for the
charges; and (4) the defendant’s actual malice).
16
This Court in Heck provided good reasons for imposing a fa-
vorable termination requirement in a malicious-prosecution action.
Heck held that a Section 1983 claim for unconstitutional conviction
or imprisonment does not accrue until termination of criminal
proceedings (or invalidation of a final criminal conviction) if the
tort action would impugn the validity of that proceeding, convic-
 25

dez-Cuevas, 723 F.3d at 99 (describing the courts of

appeals’ views on the elements of the claim); Sykes v.
Anderson, 625 F.3d 294, 309 (6th Cir. 2010) (same).
A plaintiff in petitioner’s position must also estab-
lish that the defendant officers acted with intent to
deceive or with reckless disregard of the absence of
probable cause. To be sure, “[t]he Fourth Amend-
ment inquiry is one of ‘objective reasonableness’ un-
der the circumstances,” and “subjective concepts like
‘malice’ ” generally “have no proper place in that in-
quiry.” Graham, 490 U.S. at 399. But a bad-faith
requirement in this context does not improperly inject
subjective intent into the Fourth Amendment analy-
sis; rather, proof of intentional or reckless falsehood is
required to overcome the presumption of probable
cause afforded to a magistrate judge’s neutral deter-
mination.17 See Malley v. Briggs, 475 U.S. 335, 351

tion, or sentence. See 512 U.S. at 486. To do otherwise would

“permit a collateral attack on [a criminal] conviction through the
vehicle of a civil suit.” Id. at 484 (citation omitted). The favorable
termination requirement also “avoids parallel litigation over the
issues of probable cause and guilt.” Ibid. (quoting 8 Stuart M.
Speiser et al., The American Law of Torts § 28:5, at 24 (1991)).
And it prevents “the creation of two conflicting resolutions arising
out of the same or identical transaction” by “preclud[ing] the
possibility of the claimant succeeding in the tort action after hav-
ing been convicted in the underlying criminal prosecution.” Ibid.
(citation omitted). These considerations apply with equal force to a
Fourth Amendment claim under Section 1983 for unlawful pretrial
detention pursuant to legal process: Favorable termination of the
underlying criminal proceedings similarly should be required
before the claimant is permitted to challenge the probable cause
for his detention.
17
The intent required for a Section 1983 Fourth Amendment
claim of unlawful pretrial detention is not directly akin to the
common-law element of “malice,” which in a malicious prosecution
 26

(1986) (Powell, J., concurring) (“In cases where a

criminal defendant has asserted claims of unconstitu-
tional search and seizure, this Court has consistently
accorded primary evidentiary weight to a magistrate’s
determination of probable cause.”); Illinois v. Gates,
462 U.S. 213, 236 (1983) (“A magistrate’s determina-
tion of probable cause should be paid great deference
by reviewing courts.”) (citation omitted).
To an even greater degree, an indictment “conclu-
sively determines the existence of probable cause and
requires issuance of an arrest warrant without further
inquiry.” Gerstein, 420 U.S. at 117 n.19. This pre-
sumption of probable cause is based on “the whole
history of the grand jury institution,” and is so “invio-
lable” that an indictment “triggers ‘issuance of an
arrest warrant without further inquiry” into the case’s
strength.” Kaley, 134 S. Ct. at 1097-1098 (quoting
Gerstein, 420 U.S. at 117 n.19) (citation omitted); see
Fed. R. Crim. P. 9(a). During a criminal proceeding,
“a challenge to the reliability or competence of the
evidence supporting a grand jury’s finding of probable
cause will not be heard.” Kaley, 134 S. Ct. at 1097
(citation omitted). In a subsequent civil action, an

suit broadly encompasses any improper “purpose in instituting the

criminal claim other than bringing the offender to justice.” Miller
v. Sanilac Cnty., 606 F.3d 240, 248 (6th Cir. 2010) (citation omit-
ted); see Heck, 512 U.S. at 494 (Souter, J., concurring) (defining
the “malice” element at common law). By contrast, the intent re-
quired to challenge a neutral probable cause determination under
the Fourth Amendment pertains only to the defendant’s intent to
deceive or reckless disregard for the absence of probable cause.
See Franks, 438 U.S. at 171-172; cf. Hernandez-Cuevas, 723 F.3d
at 102 (The submission of a warrant with deliberate falsehoods is
the “kind of reprehensible behavior [that] seems indistinguishable
from the common law element of malice.”).
 27

indictment is therefore typically treated as prima facie

evidence of probable cause that may be overcome only
by a showing that the defendant misrepresented,
withheld, or falsified evidence when procuring it. 18
White v. Frank, 855 F.2d 956, 961-962 (2d Cir. 1988),
overruled on other grounds, Rehberg, 132 S. Ct. 1497;
Moore v. Hartman, 571 F.3d 62, 67 (D.C. Cir. 2009)
(collecting cases).
The framework of Franks v. Delaware, 438 U.S.
154, is instructive. Franks held that a criminal de-
fendant moving to suppress evidence seized pursuant
to a warrant may obtain an evidentiary hearing only if
the supporting affidavit contained deliberate or reck-
less falsehoods essential to the finding of probable
cause. 19 Id. at 171-172. Franks derived its intent

18
Petitioner obtained a copy of the grand jury transcript in this
case. See J.A. 94-96. Nonetheless, in future cases, challenges to
the grand jury’s probable-cause determination may not warrant
breaching the secrecy of grand jury proceedings. Rehberg, 132 S.
Ct. at 1509. To protect that “vital secrecy,” this Court not only
granted absolute immunity to grand jury witnesses from civil
liability, but also precluded the use of grand jury testimony as “the
basis for, or * * * as evidence supporting, a [Section] 1983
claim.” Ibid.
19
Lower courts broadly agree that the principles of Franks
should also extend to Section 1983 damages claims based on arrest
warrants. See, e.g., Hawkins v. Gage Cnty., 759 F.3d 951, 958 (8th
Cir. 2014) (“This rule applies equally to an affidavit supporting an
arrest warrant.”) (citations omitted); see also Hernandez-Cuevas,
723 F.3d at 101-102; Wilson v. Russo, 212 F.3d 781, 786 (3d Cir.
2000); United States v. Colkley, 899 F.2d 297, 299-303 (4th Cir.
1990); United States v. Martin, 615 F.2d 318, 327-329 (5th Cir.
1980); Wolford v. Lasater, 78 F.3d 484, 489 (10th Cir. 1996); Kelly
v. Curtis, 21 F.3d 1544, 1554 (11th Cir. 1994); but see United
States v. Awadallah, 349 F.3d 42, 64 n.17 (2d Cir. 2003) (“The
Franks doctrine arose in the context of a search warrant, and
 28

requirement from “language of the Warrant Clause

itself, which surely takes the affiant’s good faith as its
premise.” Id. at 164. The Court explained that “when
the Fourth Amendment demands a factual showing
sufficient to comprise ‘probable cause,’ the obvious
assumption is that there will be a truthful showing.”
Ibid. (quoting United States v. Halsey, 257 F. Supp.
1002, 1005 (S.D.N.Y. 1966)) (emphasis added). The
Court thereby recognized that any challenge to a
warrant must acknowledge the limits inherent in a
probable cause determination: A “ truthful” affidavit
does not mean that “every fact recited in the warrant
affidavit is necessarily correct, for probable cause may
be founded upon hearsay and upon information re-
ceived from informants, as well as upon information
within the affiant’s own knowledge that sometimes
must be garnered hastily.” Id. at 165; see Heien v.
North Carolina, 135 S. Ct. 530, 536 (2014) (“[S]earch-
es and seizures based on mistakes of fact can be rea-
sonable.”). Therefore, a warrant (and, a fortiori, an
indictment) must withstand challenge to its validity so
long as “the information put forth is believed or ap-
propriately accepted by the affiant as true.” 20 Franks,
438 U.S. at 165.
Proof of reckless or intentional conduct in the insti-
tution of a criminal proceeding is therefore necessary

neither the Supreme Court nor this Court has extended it to arrest
warrants.”) (citations omitted), cert. denied, 543 U.S. 1056 (2005);
cf. Walczyk v. Rio, 496 F.3d 139, 157-158 (2d Cir. 2007) (conducting
Franks analysis of an arrest warrant).
20
Moreover, an allegation of intentional or reckless falsehood
essential to probable cause parallels the qualified immunity stand-
ard, which “gives ample room for mistaken judgments” by protect-
ing “all but the plainly incompetent or those who knowingly violate
the law.” Malley, 475 U.S. at 341, 343.
 29

to overcome the presumption of regularity and good

faith that inheres in an indictment returned by a
grand jury or a determination of probable cause by a
neutral magistrate judge. As a result, to establish
liability for a Fourth Amendment claim under Section
1983 for unlawful pretrial detention, a plaintiff must
allege “deliberate falsehood” or a “reckless disregard
for the truth,” that is necessary to the determination
of probable cause. Franks, 438 U.S. at 171.
B. Any Claim For Unlawful Pretrial Detention Should
Be Pleaded With Specificity, And May Be Barred By
Immunity Or Precluded By “Special Factors”
To adequately plead a claim, a Section 1983 com-
plaint must “contain sufficient factual matter, accept-
ed as true, to ‘state a claim to relief that is plausible
on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). The factors bearing on that inquiry
“will vary with the constitutional provision at issue.”
Id. at 676. Because claims of unlawful intent and
deliberate fabrication are “easy to allege and hard to
disprove,” Crawford-El v. Britton, 523 U.S. 574, 585
(1998); see also National Archives & Records Admin.
v. Favish, 541 U.S. 157, 175 (2004), the pleading
standard in cases such as this one should be scrupu-
lously enforced. Any allegations of deliberate falsity
or reckless disregard for the truth must be non-
conclusory. Iqbal, 556 U.S. at 678 (“Threadbare recit-
als of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”) (citation
omitted); accord Franks, 438 U.S. at 171 (The com-
plaint “should point out specifically the portion of the
warrant affidavit that is claimed to be false; and [it]
should be accompanied by a statement of supporting
 30

reasons,” including [a]ffidavits or sworn or otherwise

reliable statements of witnesses * * * , or their ab-
sence satisfactorily explained.”).
A claim such as petitioner’s will also often fail due
to the defendant’s immunity, absolute or qualified.
For example, any action against the prosecutor her-
self will be barred by prosecutorial immunity. Imbler,
424 U.S. 409. As noted above, respondent police offic-
ers may likewise be shielded by qualified immunity.
Malley, 475 U.S. at 341. In addition, to the extent a
plaintiff seeks to establish liability by relying on an
officer’s grand jury testimony, absolute immunity
applies. See Rehberg, 132 S. Ct. at 1506. This abso-
lute-immunity rule “may not be circumvented by
claiming that a grand jury witness conspired to pre-
sent false testimony or by using evidence of the wit-
ness’s testimony to support any other [Section] 1983
claim concerning the initiation or maintenance of a
prosecution.” Ibid.
Finally, Section 1983 applies solely to state actors;
the federal analog is a claim brought pursuant to
Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971). See Iqbal,
556 U.S. at 675 (“In the limited settings where Bivens
does apply, the implied cause of action is the federal
analog to suits brought against state officials under 42
U.S.C. § 1983.”) (citation and internal quotation marks
omitted). However, a Bivens remedy is an implied
cause of action; “it is not an automatic entitlement no
matter what other means there may be to vindicate a
protected interest.” Wilkie v. Robbins, 551 U.S. 537,
550 (2007). Courts will not imply a Bivens remedy
where “special factors” counsel hesitation, and “in
most instances,” the Supreme Court has “found a
 31

Bivens remedy unjustified.” Ibid. (citation omitted).

Recognition of a Fourth Amendment seizure claim, on
the facts presented here, does not necessarily justify
an implied cause of action under Bivens, because
special factors, including alternative remedies, may
counsel hesitation. See ibid. (“[A]lternative, existing
process for protecting the interest” may “amount[] to
a convincing reason for the Judicial Branch to refrain
from providing a new and freestanding remedy in
damages.”) (citation omitted).
CONCLUSION
The judgment of the court of appeals should be re-
versed, and the case should be remanded for further
proceedings.
Respectfully submitted.
DONALD B. VERRILLI, JR.
Solicitor General
Counsel of Record
BENJAMIN C. MIZER
Principal Deputy Assistant
Attorney General
IAN HEATH GERSHENGORN
Deputy Solicitor General
ILANA H. EISENSTEIN
Assistant to the Solicitor
General
DOUGLAS N. LETTER
BARBARA L. HERWIG
JOSHUA WALDMAN
RICHARD MONTAGUE
SIEGMUND F. FUCHS
Attorneys

MAY 2016