OCTOBER TERM, 1993
Syllabus
ALBRIGHT
v. OLIVER ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT
No. 92-833. Argued October 12, 1993-Decided January 24,1994
Upon learning that Illinois authorities had issued an arrest
warrant charging him with the sale of a substance which looked like
an illegal drug, petitioner Albright surrendered to respondent
Oliver, a policeman, and was released after posting bond. At a
preliminary hearing, Oliver testified that Albright sold the
look-alike substance to a third party, and the court found probable
cause to bind Albright over for trial. However, the court later
dismissed the action on the ground that the charge did not state an
offense under state law. Albright then filed this suit under 42 U.
S. C. § 1983, alleging that Oliver deprived him of substantive due
process under the Fourteenth Amendment-his "liberty interest"to be
free from criminal prosecution except upon probable cause. The
District Court dismissed on the ground that the complaint did not
state a claim under § 1983. The Court of Appeals affirmed, holding
that prosecution without probable cause is a constitutional tort
actionable under § 1983 only if accompanied by incarceration, loss
of employment, or some other "palpable consequenc[e]."
Held: The judgment is affirmed.
975
F.2d 343, affirmed.
CHIEF JUSTICE REHNQUIST, joined by JUSTICE O'CONNOR, JUSTICE
SCALIA, and JUSTICE GINSBURG, concluded that Albright's claimed
right to be free from prosecution without probable cause must be
judged under the Fourth Amendment, and that substantive due
process, with its "scarce and open-ended" "guideposts for
responsible decisionmaking,"
Collins v.
Harker
Heights, 503 U.
S. 115, 125, can afford Albright no relief. Where a particular
Amendment "provides an explicit textual source of constitutional
protection" against a particular sort of government behavior, "that
Amendment, not the more generalized notion of 'substantive due
process,' must be the guide for analyzing" such a claim.
Graham v.
Connor, 490 U. S. 386, 395. The
Fourth Amendment addresses the matter of pretrial deprivations of
liberty, and the Court has noted that Amendment's relevance to the
liberty deprivations that go hand in hand with criminal
prosecutions. See
Gerstein v.
Pugh, 420 U. S. 103,
114. The Court has said that the accused is not "entitled to
judicial oversight or review of the decision to prosecute."
Id., at 118-
267
119. But Albright was not merely charged; he submitted himself
to arrest. No view is expressed as to whether his claim would
succeed under the Fourth Amendment, since he has not presented the
question in his certiorari petition. Pp. 271-275.
JUSTICE KENNEDY, joined by JUSTICE THOMAS, determined that
Albright's due process claim concerns not his arrest but instead
the malicious initiation of a baseless criminal prosecution against
him. The due process requirements for criminal proceedings do not
include a standard for the initiation of a prosecution. Moreover,
even assuming,
arguendo, that the common-law interest in
freedom from malicious prosecution is protected by the Due Process
Clause, there is neither need nor legitimacy in invoking 42 U. S.
C. § 1983 in this case, given the fact that Illinois provides a
tort remedy for malicious prosecution and the Court's holding in
Parratt v.
Taylor, 451 U. S. 527, 535-544,
that a state actor's random and unauthorized deprivation of such a
due process interest cannot be challenged under § 1983 so long as
the State provides an adequate postdeprivation remedy.
Pp.281-286.
JUSTICE SOUTER concluded that, because this case presents no
substantial burden on liberty beyond what the Fourth Amendment is
generally thought to redress already, petitioner has not justified
recognition of a substantive due process violation in his
prosecution without probable cause. Substantive due process should
be reserved for otherwise homeless substantial claims, and should
not be relied on when doing so will duplicate protection that a
more specific constitutional provision already bestows.
Petitioner's asserted injuries-including restraints on his
movement, damage to his reputation, and mental anguish-are not
alleged to have flowed from the formal instrument of prosecution,
as distinct from the ensuing police seizure of his person; have
been treated by the Courts of Appeals as within the ambit of
compensability under 42 U. S. C. § 1983 for Fourth Amendment
violations; and usually occur only after an arrest or other
seizure. Pp. 286-291.
REHNQUIST, C. J., announced the judgment of the Court and
delivered an opinion, in which O'CONNOR, SCALIA, and GINSBURG, JJ.,
joined. SCALIA, J.,
post, p. 275, and GINSBURG, J.,
post, p. 276, filed concurring opinions. KENNEDY, J., filed
an opinion concurring in the judgment, in which THOMAS, J., joined,
post, p. 281. SOUTER, J., filed an opinion concurring in the
judgment,
post, p. 286. STEVENS, J., filed a dissenting
opinion, in which BLACKMUN, J., joined,
post, p. 291.
John H. Bisbee argued the cause for petitioner. With him
on the briefs was
Barry Nakell.
268
Opinion of REHNQUIST, C. J.
James G. Sotos argued the cause for respondents. With him on the
brief were Michael W Condon, Charles E. Hervas, and Michael D.
Bersani.
*
CHIEF JUSTICE REHNQUIST announced the judgment of the Court and
delivered an opinion, in which JUSTICE O'CONNOR, JUSTICE SCALIA,
and JUSTICE GINSBURG join.
A warrant was issued for petitioner's arrest by Illinois
authorities, and upon learning of it he surrendered and was
released on bail. The prosecution was later dismissed on the ground
that the charge did not state an offense under Illinois law.
Petitioner asks us to recognize a substantive right under the Due
Process Clause of the Fourteenth Amendment to be free from criminal
prosecution except upon probable cause. We decline to do so.
We review a decision of the Court of Appeals for the Seventh
Circuit affirming the grant of a motion to dismiss the complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6), and we must
therefore accept the well-pleaded allegations of the complaint as
true. Illinois authorities issued an arrest warrant for petitioner
Kevin Albright, charging him on the basis of a previously filed
criminal information with the sale of a substance which looked like
an illegal drug. When he learned of the outstanding warrant,
petitioner surrendered to respondent, Roger Oliver, a police
detective employed by the city of Macomb, but denied his guilt of
such an offense. He was released after posting bond, one of the
conditions of which was that he not leave the State without
permission of the court.1
* Leon Friedman, Steven R. Shapiro, John A.
Powell, and
Harvey Grossman filed a brief for the
American Civil Liberties Union et al. as
amici curiae urging
reversal.
Richard Ruda filed a brief for the National League of
Cities et al. as
amici curiae urging affirmance.
1 Before the criminal information was filed, one Veda Moore, an
undercover informant, had told Oliver that she bought cocaine from
one John Albright, Jr., at a student hotel in Macomb. The "cocaine"
turned out to
269
At a preliminary hearing, respondent Oliver testified that
petitioner sold the look-alike substance to Moore, and the court
found probable cause to bind petitioner over for trial. At a later
pretrial hearing, the court dismissed the criminal action against
petitioner on the ground that the charge did not state an offense
under Illinois law.
Albright then instituted this action under Rev. Stat. § 1979, 42
U. S. C. § 1983, against Detective Oliver in his individual and
official capacities, alleging that Oliver deprived him of
substantive due process under the Fourteenth Amendment-his "liberty
interest"-to be free from criminal prosecution except upon probable
cause.2 The District Court granted respondent's motion to dismiss
under Rule 12(b)(6) on the ground that the complaint did not state
a claim under § 1983.3 The Court of Appeals for the Seventh Circuit
affirmed,
975 F.2d
343 (1992), relying on our decision in
Paul v.
Davis, 424 U.
S. 693 (1976). The Court of Appeals held that prosecution
without probable cause is a constitutional tort actionable under §
1983 only if accompanied by incarceration or loss of employment or
some other "palpable
be baking powder, however, and the grand jury indicted John
Albright, Jr., for selling a "look-alike" substance. When Detective
Oliver went to serve the arrest warrant, he discovered that John
Albright, Jr., was a retired pharmacist in his sixties, and
apparently realized he was on a false scent. After discovering that
it could not have been the elderly Albright's son, John David, who
was involved in the incident, Detective Oliver contacted Moore to
see if the sale was actually made by petitioner Kevin Albright, a
second son of John Albright, Jr. Moore confirmed that petitioner
Kevin Albright made the sale.
2 The complaint also named the city of Macomb as a defendant to
the § 1983 action and charged a common-law malicious prosecution
claim against Detective Oliver.
3 The District Court also held that Detective Oliver was
entitled to a defense of qualified immunity, and that the complaint
failed to allege facts sufficient to support municipal liability
against the city of Macomb. The District Court also dismissed
without prejudice the common-law claim of malicious prosecution
against Detective Oliver. These issues are not before this
Court.
270
Opinion of REHNQUIST, C. J.
consequenc[eJ." 975 F. 2d, at 346-347. The panel of the Seventh
Circuit reasoned that "just as in the garden-variety public-officer
defamation case that does not result in exclusion from an
occupation, state tort remedies should be adequate and the heavy
weaponry of constitutional litigation can be left at rest."
Id., at 347.4 We granted certiorari, 507
4 As noted by the Court of Appeals below, the extent to which a
claim of malicious prosecution is actionable under § 1983 is one
"on which there is an embarrassing diversity of judicial opinion."
975 F. 2d, at 345, citing
Brummett v.
Gamble,
946 F.2d
1178, 1180, n. 2
(CA5 1991) (cataloging divergence of
approaches by the Courts of Appeals). Most of the lower courts
recognize some form of malicious prosecution action under § 1983.
The disagreement among the courts concerns whether malicious
prosecutions, standing alone, can violate the Constitution. The
most expansive approach is exemplified by the Third Circuit, which
holds that the elements of a malicious prosecution action under §
1983 are the same as the common-law tort of malicious prosecution.
See,
e. g., Lee v.
Mihalich, 847 F. 2d 66, 70 (1988)
("[T]he elements of liability for the constitutional tort of
malicious prosecution under § 1983 coincide with those of the
common law tort"). See also
Sanders v.
English,
950 F.2d
1152, 1159
(CA5 1992) ("[O]ur circuit recognizes causes
of action under § 1983 for false arrest, illegal detention ... and
malicious prosecution" because these causes of action "implicate
the constitutional 'guarantees of the fourth and fourteenth
amendments' ");
Robinson v.
Maruffi, 895 F.2d
649 (CAlO 1990);
Strength v.
Hubert, 854 F.2d
421, 426, and n. 5
(CAll 1988) (recognizing that
"freedom from malicious prosecution is a federal right protected by
§ 1983"). Other Circuits, however, require a showing of some injury
or deprivation of a constitutional magnitude in addition to the
traditional elements of common-law malicious prosecution. The exact
standards announced by the courts escape easy classification. See,
e. g., Torres v.
Superintendent of Police of Puerto
Rico, 893 F.2d
404, 409
(CA1 1990) (the challenged conduct must be "so
egregious that it violated substantive or procedural due process
rights under the Fourteenth Amendment");
Usher v.
Los
Angeles, 828 F.2d
556, 561-562
(CA9 1987) ("[T]he general rule is that a
claim of malicious prosecution is not cognizable under 42 U. S. C.
§ 1983 if process is available within the state judicial system to
provide a remedy .... However, 'an exception exists to the general
rule when a malicious prosecution is conducted with the intent to
deprive a person of equal protection of the laws or is otherwise
intended to subject a person to a denial of constitutional rights'
");
Googan v.
Wixom, 820 F. 2d
170,175
(CA61987) (in addition to elements of malicious prosecution
under
271
u. S. 959 (1993), and while we affirm the judgment below, we do
so on different grounds. We hold that it is the Fourth Amendment,
and not substantive due process, under which petitioner Albright's
claim must be judged.
Section 1983 "is not itself a source of substantive rights," but
merely provides "a method for vindicating federal rights elsewhere
conferred."
Baker v.
McCollan, 443 U. S. 137, 144, n. 3
(1979). The first step in any such claim is to identify the
specific constitutional right allegedly infringed.
Graham v.
Connor, 490 U.
S. 386, 394 (1989); and
Baker v.
McCollan, supra,
at 140.
Petitioner's claim before this Court is a very limited one.
He claims that the action of respondents infringed his
substantive due process right to be free of prosecution without
probable cause. He does not claim that Illinois denied him the
procedural due process guaranteed by the Fourteenth Amendment. Nor
does he claim a violation of his Fourth Amendment rights,
notwithstanding the fact that his surrender to the State's show of
authority constituted a seizure for purposes of the Fourth
Amendment.
Terry v.
Ohio, 392 U. S. 1, 19 (1968);
Brower v.
County of Inyo, 489 U. S. 593, 596
(1989).5
We begin analysis of petitioner's claim by repeating our
observation in
Collins v.
Harker Heights, 503 U. S. 115, 125
(1992). "As a general matter, the Court has always been reluctant
to expand the concept of substantive due process
state law, plaintiff must show an egregious misuse of a legal
proceeding resulting in a constitutional deprivation). In holding
that malicious prosecution is not actionable under § 1983 unless it
is accompanied by incarceration, loss of protected status, or some
other palpable consequence, the Seventh Circuit's decision below
places it in this latter camp. In view of our disposition of this
case, it is evident that substantive due process may not furnish
the constitutional peg on which to hang such a "tort."
5 Thus, Albright may have missed the statute of limitations for
any claim he had based on an unconstitutional arrest or seizure.
975 F.2d
343, 345
(CA7 1992). We express no opinion as to the
timeliness of any such claim he might have.
272
Opinion of REHNQUIST, C. J.
because the guideposts for responsible decisionmaking in this
unchartered area are scarce and open-ended." The protections of
substantive due process have for the most part been accorded to
matters relating to marriage, family, procreation, and the right to
bodily integrity. See,
e. g., Planned Parenthood
of Southeastern Pa. v.
Casey, 505 U. S. 833, 847-849
(1992) (describing cases in which substantive due process rights
have been recognized). Petitioner's claim to be free from
prosecution except on the basis of probable cause is markedly
different from those recognized in this group of cases.
Petitioner relies on our observations in cases such as
United
States v.
Salerno, 481 U. S. 739, 746
(1987), and
Daniels v.
Williams, 474 U. S. 327, 331
(1986), that the Due Process Clause of the Fourteenth Amendment
confers both substantive and procedural rights. This is undoubtedly
true, but it sheds little light on the scope of substantive due
process. Petitioner points in particular to language from
Hurtado v.
California, 110 U. S. 516, 527
(1884), later quoted in
Daniels, supra, stating that the
words "by the law of the land" from the Magna Carta were "'intended
to secure the individual from the arbitrary exercise of the powers
of government.'" This, too, may be freely conceded, but it does not
follow that, in all of the various aspects of a criminal
prosecution, the only inquiry mandated by the Constitution is
whether, in the view of the Court, the governmental action in
question was "arbitrary."
Hurtado held that the Due Process Clause did not make
applicable to the States the Fifth Amendment's requirement that all
prosecutions for an infamous crime be instituted by the indictment
of a grand jury. In the more than 100 years which have elapsed
since
Hurtado was decided, the Court has concluded that a
number of the procedural protections contained in the Bill of
Rights were made applicable to the States by the Fourteenth
Amendment. See
Mapp v.
Ohio, 367 U. S. 643 (1961),
overruling
Wolf v.
Colorado, 338 U. S.
273
25 (1949), and holding the Fourth Amendment's exclusionary rule
applicable to the States;
Malloy v.
Hogan, 378 U. S. 1 (1964),
overruling
Twining v.
New Jersey, 211 U. S. 78 (1908), and
holding the Fifth Amendment's privilege against selfincrimination
applicable to the States;
Benton v.
Maryland,
395 U. S. 784
(1969), overruling
Palko v.
Connecticut, 302 U. S.
319 (1937), and holding the Double Jeopardy Clause of the Fifth
Amendment applicable to the States;
Gideon v.
Wainwright, 372 U. S. 335 (1963),
overruling
Betts v.
Brady, 316 U. S. 455 (1942), and
holding that the Sixth Amendment's right to counsel was applicable
to the States. See also
Klopfer v.
North Carolina,
386 U. S. 213
(1967) (Sixth Amendment speedy trial right applicable to the
States);
Washington v.
Texas, 388 U. S. 14 (1967) (Sixth
Amendment right to compulsory process applicable to the States);
Duncan v.
Louisiana, 391 U. S. 145 (1968)
(Sixth Amendment right to jury trial applicable to the States).
This course of decision has substituted, in these areas of
criminal procedure, the specific guarantees of the various
provisions of the Bill of Rights embodied in the first 10
Amendments to the Constitution for the more generalized language
contained in the earlier cases construing the Fourteenth Amendment.
It was through these provisions of the Bill of Rights that their
Framers sought to restrict the exercise of arbitrary authority by
the Government in particular situations. Where a particular
Amendment "provides an explicit textual source of constitutional
protection" against a particular sort of government behavior, "that
Amendment, not the more generalized notion of 'substantive due
process,' must be the guide for analyzing these claims."
Graham v.
Connor, supra, at 395.6
6JUSTICE STEVENS' dissent faults us for ignoring,
inter
alia, our decision in
In re Winship, 397 U. S. 358 (1970).
Winship undoubtedly rejected the notion that all of the
required incidents of a fundamentally fair trial were to be found
in the provisions of the Bill of Rights, but it did so as a matter
of procedural due process: "'This notion [that the government must
prove
274
Opinion of REHNQUIST, C. J.
We think this principle is likewise applicable here. The Framers
considered the matter of pretrial deprivations of liberty and
drafted the Fourth Amendment to address it. The Fourth Amendment
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."
We have in the past noted the Fourth Amendment's relevance to
the deprivations of liberty that go hand in hand with criminal
prosecutions. See
Gerstein v.
Pugh, 420 U. S. 103,114 (1975)
(holding that the Fourth Amendment requires a judicial
determination of probable cause as a prerequisite to any extended
restraint on liberty following an arrest). We have said that the
accused is not "entitled to judicial oversight or review of the
decision to prosecute."
Id., at 118-119. See also
Beck v.
Washington, 369 U. S. 541, 545
(1962); Lem Woon v.
Oregon, 229 U. S. 586 (1913). But
here petitioner was not merely charged; he submitted himself to
arrest.
the elements of a criminal case beyond a reasonable doubt]-basic
in our law and rightly one of the boasts of a free society-is a
requirement and a safeguard of due process of law in the historic,
procedural content of "due process."'"
Id., at 362, quoting
Leland v.
Oregon, 343 U. S. 790, 802-803
(1952) (Frankfurter, J., dissenting).
Similarly, other cases relied on by the dissent, including
Mooney v.
Holohan, 294 U. S. 103 (1935),
Napue v.
Illinois, 360 U. S. 264 (1959),
Brady v.
Maryland, 373 U. S. 83 (1963),
Giglio v.
United States, 405 U. S. 150 (1972), and
United States v.
Agurs, 427 U. S. 97 (1976), were
accurately described in the latter opinion as "dealing with the
defendant's right to a fair trial mandated by the Due Process
Clause of the Fifth Amendment to the Constitution."
Id., at
107.
275
We express no view as to whether petitioner's claim would
succeed under the Fourth Amendment, since he has not presented that
question in his petition for certiorari. We do hold that
substantive due process, with its "scarce and openended"
"guideposts,"
Collins v.
Harker Heights, 503 U. S.,
at 125, can afford him no relieF
The judgment of the Court of Appeals is therefore
Affirmed.
JUSTICE SCALIA, concurring.
One can conceive of many abuses of the trial process (for
example, the use of a patently biased judge, see
Mayberry v.
Pennsylvania, 400 U. S. 455, 465-466
(1971)) that might cause a criminal sentence to be a deprivation of
life, liberty or property
without due process. But here
there was no criminal sentence (the indictment was dismissed), and
so the only deprivation of life, liberty or property, if any,
consisted of petitioner's pretrial arrest. I think it unlikely that
the procedures constitutionally "due," with regard to an arrest,
consist of anything more than what the Fourth Amendment specifies;
but petitioner has in any case not invoked "procedural" due
process.
Except insofar as our decisions have included within the
Fourteenth Amendment certain explicit substantive protections of
the Bill of Rights-an extension I accept because it is both long
established and narrowly limited-I reject the proposition that the
Due Process Clause guarantees certain (unspecified) liberties,
rather than merely guarantees certain procedures as a prerequisite
to deprivation of liberty. See
TXO Production Corp. v.
Alliance Resources Corp., 509 U. S.
7 Petitioner appears to have argued in the Court of Appeals some
variant of a violation of his constitutional right to interstate
travel because of the condition imposed upon him pursuant to his
release on bond. But he has not presented any such question in his
petition for certiorari and has not briefed the issue here. We
therefore do not consider it.
276
443, 470-471 (1993) (SCALIA, J., concurring). As I have
acknowledged, however, see
Michael H. v.
Gerald D.,
491 U. S. 110,
121 (1989) (opinion of SCALIA, J.), this Court's current
jurisprudence is otherwise. But that jurisprudence rejects "the
more generalized notion of 'substantive due process'" at least to
this extent: It cannot be used to impose additional requirements
upon such of the States' criminal processes as are already
addressed (and left without such requirements) by the Bill of
Rights.
Graham v.
Connor, 490 U. S. 386, 395
(1989). That proscription applies here. The Bill of Rights sets
forth, in the Fifth and Sixth Amendments, procedural guarantees
relating to the period before and during trial, including a
guarantee (the Grand Jury Clause) regarding the manner of
indictment. Those requirements are not to be supplemented through
the device of "substantive due process."
For these reasons, in addition to those set forth by THE CHIEF
JUSTICE, the judgment here should be affirmed.
JUSTICE GINSBURG, concurring.
I agree with the plurality that Albright's claim against the
police officer responsible for his arrest is properly analyzed
under the Fourth Amendment rather than under the heading of
substantive due process. See
ante, at 271. I therefore join
the plurality opinion and write separately to indicate more
particularly my reasons for viewing this case through a Fourth
Amendment lens.
Albright's factual allegations convey that Detective Oliver
notoriously disobeyed the injunction against unreasonable seizures
imposed on police officers by the Fourth Amendment, and Albright
appropriately invoked that Amendment as a basis for his claim. See
App. to Pet. for Cert. A-37, A-53. Albright's submission to arrest
unquestionably constituted a seizure for purposes of the Fourth
Amendment. See
ante, at 271. And, as the Court of Appeals
recognized, if the facts were as Albright alleged, then Oliver
lacked cause
277
to suspect, let alone apprehend him.
975 F.2d
343, 345 (CA7 1992); see
post, at 292-293 (STEVENS, J.,
dissenting).
Yet in his presentations before this Court, Albright
deliberately subordinated invocation of the Fourth Amendment and
pressed, instead, a substantive due process right to be free from
prosecution without probable cause.1 This strategic decision
appears to have been predicated on two doubtful assumptions, the
first relating to the compass of the Fourth Amendment, the second,
to the time frame for commencing this civil action.
Albright may have feared that courts would narrowly define the
Fourth Amendment's key term "seizure" so as to deny full scope to
his claim. In particular, he might have anticipated a holding that
the "seizure" of his person ended when he was released from custody
on bond, and a corresponding conclusion that Oliver's allegedly
misleading testimony at the preliminary hearing escaped Fourth
Amendment interdiction.2
The Fourth Amendment's instruction to police officers seems to
me more purposive and embracing. This Court has noted that the
common law may aid contemporary inquiry into the meaning of the
Amendment's term "seizure." See
California v.
Hodari
D., 499 U. S.
621, 626, n. 2 (1991). At common law, an arrested person's
seizure was deemed to
1 Albright's presentations essentially carve up the officer's
conduct, though all part of a single scheme, so that the actions
complained of match common-law tort categories: first, false arrest
(Fourth Amendment's domain); next, malicious prosecution (Fifth
Amendment territory). In my view, the 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. According the Fourth Amendment full sway, I would
not force Albright's case into a different mold.
2 Such a concern might have stemmed from Seventh Circuit
precedent set before
Graham v.
Connor, 490 U. S. 386 (1989). See
Wilkins v.
May, 872 F.2d
190, 192-195 (1989) (substantive due process "shock the
conscience" standard, not Fourth Amendment, applies to brutal
"post-arrest pre-charge" interrogation).
278
continue even after release from official custody. See,
e. g., 2 M. Hale, Pleas of the Crown *124 ("he that
is bailed, is in supposition of law still in custody, and the
parties that take him to bail are in law his keepers"); 4 W.
Blackstone, Commentaries *297 (bail in both civil and criminal
cases is "a delivery or bailment, of a person to his sureties, ...
he being supposed to continue in their friendly custody, instead of
going to gaol"). The purpose of an arrest at common law, in both
criminal and civil cases, was "only to compel an appearance in
court," and "that purpose is equally answered, whether the sheriff
detains [the suspect's] person, or takes sufficient security for
his appearance, called bail." 3
id., at *290 (civil cases);
4
id., at *297 (nature of bail is the same in criminal and
civil cases). The common law thus seems to have regarded the
difference between pretrial incarceration and other ways to secure
a defendant's court attendance as a distinction between methods of
retaining control over a defendant's person, not one between
seizure and its opposite.3
This view of the definition and duration of a seizure comports
with common sense and common understanding. A person facing serious
criminal charges is hardly freed from the state's control upon his
release from a police officer's physical grip. He is required to
appear in court at the state's command. He is often subject, as in
this case, to the condition that he seek formal permission from the
court (at significant expense) before exercising what would
otherwise be his unquestioned right to travel outside the
jurisdiction. Pending prosecution, his employment prospects may be
diminished severely, he may suffer reputational harm, and he will
experience the financial and emotional strain of preparing a
defense.
3 For other purposes,
e. g., to determine the
proper place for condemnation trials, "seizure" traditionally had a
time- and site-specific meaning. See
Thompson v.
Whitman, 18 Wall. 457,471 (1874) ("seizure [of a sloop] is a
single act"; "[p]ossession, which follows seizure, is
continuous").
279
A defendant incarcerated until trial no doubt suffers greater
burdens. That difference, however, should not lead to the
conclusion that a defendant released pretrial is not still "seized"
in the constitutionally relevant sense. Such a defendant 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. He is equally bound
to appear, and is hence "seized" for trial, when the state employs
the less strong-arm means of a summons in lieu of arrest to secure
his presence in court.4
This conception of a seizure and its course recognizes that the
vitality of the Fourth Amendment depends upon its constant
observance by police officers. For Oliver, the Fourth Amendment
governed both the manner of, and the cause for, arresting Albright.
If Oliver gave misleading testimony at the preliminary hearing,
that testimony served to maintain and reinforce the unlawful haling
of Albright into court, and so perpetuated the Fourth Amendment
violation.5
4 On the summons-and-complaint alternative to custodial arrest,
see 2 W. LaFave, Search and Seizure 432-436 (2d ed. 1987).
5 Albright's reliance on a "malicious prosecution" theory,
rather than a Fourth Amendment theory, is anomalous. The principal
player in carrying out a prosecution-in "the formal commencement of
a criminal proceeding," see
post, at 295 (STEVENS, J.,
dissenting)-is not police officer but prosecutor. Prosecutors,
however, have absolute immunity for their conduct. See
Burns
v.
Reed, 500
U. S. 478, 487-492 (1991). Under Albright's substantive due
process theory, the star player is exonerated, but the supporting
actor is not.
In fact, Albright's theory might succeed in exonerating the
supporting actor as well. By focusing on the police officer's role
in initiating and pursuing a criminal prosecution, rather than his
role in effectuating and maintaining a seizure, Albright's theory
raises serious questions about whether the police officer would be
entitled to share the prosecutor's absolute immunity. See
post, at 308-309, n. 26 (STEVENS, J., dissenting) (noting
that the issue is open); cf.
Briscoe v.
LaHue,
460 U. S. 325,
326 (1983) (holding that § 1983 does not "authoriz[e] a convicted
person to assert a claim for damages against a police officer for
giving perjured testimony at
280
A second reason for Albright's decision not to pursue a Fourth
Amendment claim concerns the statute of limitations. The Court of
Appeals suggested in dictum that any Fourth Amendment claim
Albright might have had accrued on the date of his arrest, and that
the applicable 2-year limitations period expired before the
complaint was filed.6 975 F. 2d, at 345. Albright expressed his
acquiescence in this view at oral argument. Tr. of Oral Arg. 13,
20-21.
Once it is recognized, however, that Albright remained
effectively "seized" for trial so long as the prosecution against
him remained pending, and that Oliver's testimony at the
preliminary hearing, if deliberately misleading, violated the
Fourth Amendment by perpetuating the seizure, then the limitations
period should have a different trigger. The time to file the § 1983
action should begin to run not at the start, but at the end of the
episode in suit, i.
e., upon dismissal of the criminal
charges against Albright. See
McCune v.
Grand Rapids,
842 F.2d
903, 908 (CA6 1988) (Guy, J., concurring in result) ("Where ...
innocence is what makes the state action wrongful, it makes little
sense to require a federal suit to be filed until innocence or its
equivalent is established by the termination of the state
procedures in a manner favorable to the state criminal
defendant."). In sum, Albright's Fourth Amendment claim, asserted
within the requisite period after dismissal of the criminal action,
in my judgment was neither substantively deficient nor inevitably
time barred. It was, however, a claim Albright abandoned in the
District Court and did not attempt to reassert in this Court.
his criminal trial"). A right to sue someone who is absolutely
immune from suit would hardly be a right worth pursuing.
6 In § 1983 actions, federal courts apply the state statute of
limitations governing actions for personal injury. See
Wilson v.
Garcia, 471 U. S. 261, 276-280
(1985). The question when the limitations period begins to run,
however, is one of federal law. See
id., at 268-271; see
generally
Connors v.
Hallmark &
Son Coal
Co., 935 F.2d
336, 341 (CADC 1991) (collecting cases).
281
The principle of party presentation cautions decisionmakers
against asserting it for him. See
ante, at 275.
***
In
Graham v.
Connor, 490 U. S. 386 (1989),
this Court refused to analyze under a "substantive due process"
heading an individual's right to be free from police applications
of excessive force. "Because the Fourth Amendment provides an
explicit textual source of constitutional protection against this
sort of ... governmental conduct," we said, "that Amendment, not
the more generalized notion of 'substantive due process,' must be
the guide for analyzing these claims."
Id., at 395. I
conclude that the Fourth Amendment similarly proscribes the police
misconduct Albright alleges. I therefore resist in this case the
plea "to break new ground," see
Collins v.
Harker
Heights, 503 U.
S. 115, 125 (1992), in a field-substantive due process-that
"has at times been a treacherous [one] for this Court." See
Moore v.
East Cleveland, 431 U. S. 494, 502 (1977)
(opinion of Powell, J.).
JUSTICE KENNEDY, with whom JUSTICE THOMAS joins, concurring in
the judgment.
I agree with the plurality that an allegation of arrest without
probable cause must be analyzed under the Fourth Amendment without
reference to more general considerations of due process. But I
write because Albright's due process claim concerns not his arrest
but instead the malicious initiation of a baseless criminal
prosecution against him.
I
The State must, of course, comply with the constitutional
requirements of due process before it convicts and sentences a
person who has violated state law. The initial question here is
whether the due process requirements for criminal proceedings
include a standard for the initiation of a prosecution.
282
KENNEDY, J., concurring in judgment
The specific provisions of the Bill of Rights neither impose a
standard for the initiation of a prosecution, see U. S. Const.,
Amdts. 5, 6, nor require a pretrial hearing to weigh evidence
according to a given standard, see
Gerstein v.
Pugh,
420 U. S. 103,
119 (1975) ("[A] judicial hearing is not prerequisite to
prosecution");
Costello v.
United States, 350 U. S. 359, 363 (1956)
("An indictment returned by a legally constituted and unbiased
grand jury, like an information drawn by the prosecutor, ... is
enough to call for trial of the charge on the merits. The Fifth
Amendment requires nothing more") (footnote omitted). Instead, the
Bill of Rights requires a grand jury indictment and a speedy trial
where a petit jury can determine whether the charges are true.
Amdts. 5, 6.
To be sure, we have held that a criminal rule or procedure that
does not contravene one of the more specific guarantees of the Bill
of Rights may nonetheless violate the Due Process Clause if it
"'offends some principle of justice so rooted in the traditions and
conscience of our people as to be ranked as fundamental.'"
Medina v.
California, 505 U. S. 437, 445 (1992)
(quoting
Patterson v.
New York, 432 U. S. 197, 202
(1977)). With respect to the initiation of charges, however, the
specific guarantees contained in the Bill of Rights mirror the
traditional requirements of the criminal process. The common law
provided for a grand jury indictment and a speedy trial; it did not
provide a specific evidentiary standard applicable to a pretrial
hearing on the merits of the charges or subject to later review by
the courts. See
United States v.
Williams, 504 U. S. 36, 51 (1992);
Costello, supra, at 362-363;
United States v.
Reed, 27 F. Cas. 727, 738 (No. 16,134) (CC NDNY 1852)
(Nelson, J.) ("No case has been cited, nor have we been able to
find any, furnishing an authority for looking into and revising the
judgment of the grand jury upon the evidence, for the purpose of
determining whether or not the finding was founded upon sufficient
proof").
Moreover, because the Constitution requires a speedy trial but
no pretrial hearing on the sufficiency of the charges
283
(leaving aside the question of extended pretrial detention, see
County of Riverside v.
McLaughlin, 500 U. S. 44 (1991)), any
standard governing the initiation of charges would be superfluous
in providing protection during the criminal process. If the charges
are not proved beyond a reasonable doubt at trial, the charges are
dismissed; if the charges are proved beyond a reasonable doubt at
trial, any standard applicable to the initiation of charges is
irrelevant because it is perforce met. This case thus differs in
kind from
In re Winship,
397 U. S. 358 (1970), and
the other criminal cases where we have recognized due process
requirements not specified in the Bill of Rights. The
constitutional requirements we enforced in those cases ensured
fundamental fairness in the determination of guilt at trial. See,
e. g., Mooney v.
Holohan, 294 U. S. 103, 112 (1935)
(due process prohibits "deliberate deception of court and jury" by
prosecution's knowing use of perjured testimony);
ante, at
273-274, n. 6.
In sum, the due process requirements for criminal proceedings do
not include a standard for the initiation of a criminal
prosecution.
II
That may not be the end of the due process inquiry, however. The
common law of torts long recognized that a malicious prosecution,
like a defamatory statement, can cause unjustified torment and
anguish-both by tarnishing one's name and by costing the accused
money in legal fees and the like. See generally W. Keeton, D.
Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts
§ 119, pp. 870-889 (5th ed. 1984); T. Cooley, Law of Torts 180-187
(1879). We have held, of course, that the Due Process Clause
protects interests other than the interest in freedom from physical
restraint, see
Michael H. v.
Gerald D., 491 U. S. 110, 121
(1989), and for purposes of this case, we can assume,
arguendo, that some of the interests granted historical
protection by the common law of torts (such as the interests in
freedom from defamation and malicious prosecution)
284
KENNEDY, J., concurring in judgment
are protected by the Due Process Clause. Even so, our precedents
make clear that a state actor's random and unauthorized deprivation
of that interest cannot be challenged under 42 U. S. C. § 1983 so
long as the State provides an adequate postdeprivation remedy.
Parratt v.
Taylor, 451 U. S. 527, 535-544
(1981); see
Hudson v.
Palmer, 468 U. S. 517, 531-536
(1984);
Ingraham v.
Wright, 430 U. S. 651, 674-682
(1977); id., at 701 (STEVENS, J., dissenting) ("adequate
state remedy for defamation may satisfy the due process requirement
when a State has impaired an individual's interest in his
reputation").
The commonsense teaching of
Parratt is that some
questions of property, contract, and tort law are best resolved by
state legal systems without resort to the federal courts, even when
a state actor is the alleged wrongdoer. As we explained in
Parratt, the contrary approach "would almost necessarily
result in turning every alleged injury which may have been
inflicted by a state official acting under 'color of law' into a
violation of the Fourteenth Amendment cognizable under § 1983 ....
Presumably, under this rationale any party who is involved in
nothing more than an automobile accident with a state official
could allege a constitutional violation under § 1983. Such
reasoning 'would make of the Fourteenth Amendment a font of tort
law to be superimposed upon whatever systems may already be
administered by the States.'" 451 U. S., at 544 (quoting
Paul v.
Davis, 424 U. S. 693, 701
(1976)). The
Parratt principle respects the delicate balance
between state and federal courts and comports with the design of §
1983, a statute that reinforces a legal tradition in which
protection for persons and their rights is afforded by the common
law and the laws of the States, as well as by the Constitution. See
Parratt, supra, at 531-532.
Yet it is fair to say that courts, including our own, have been
cautious in invoking the rule of
Parratt. See
Mann v.
Tucson, 782 F.2d
790, 798 (CA9 1986) (Sneed, J., concurring).
285
That hesitancy is in part a recognition of the important role
federal courts have assumed in elaborating vital constitutional
guarantees against arbitrary or oppressive state action. We want to
leave an avenue open for recourse where we think the federal power
ought to be vindicated. Cf.
Screws v.
United States,
325 U. S. 91
(1945).
But the price of our ambivalence over the outer limits of
Parratt has been its dilution and, in some respects, its
transformation into a mere pleading exercise. The
Parratt
rule has been avoided by attaching a substantive rather than
procedural label to due process claims (a distinction that if
accepted in this context could render
Parratt a dead letter)
and by treating claims based on the Due Process Clause as claims
based on some other constitutional provision. See
Taylor v.
Knapp, 871 F.2d
803, 807 (CA9 1989) (Sneed, J., concurring). It has been
avoided at the other end of the spectrum by construing complaints
alleging a substantive injury as attacks on the adequacy of state
procedures. See
Zinermon v.
Burch, 494 U. S.113,
139-151 (1990) (O'CONNOR, J., dissenting);
Easter House v.
Felder, 910 F.2d
1387, 1408 (CA7 1990) (Easterbrook, J., concurring). These
evasions are unjustified given the clarity of the
Parratt
rule: In the ordinary case where an injury has been caused not by a
state law, policy, or procedure, but by a random and unauthorized
act that can be remedied by state law, there is no basis for
intervention under § 1983, at least in a suit based on "the Due
Process Clause of the Fourteenth Amendment
simpliciter." 451
U. S., at 536.
As
Parratt's precedential force must be acknowledged, I
think it disposes of this case. Illinois provides a tort remedy for
malicious prosecution; indeed, Albright brought a state-law
malicious prosecution claim, albeit after the statute of
limitations had expired. (That fact does not affect the adequacy of
the remedy under
Parratt. See
Daniels v.
Williams, 474
U. S. 327, 342 (1986) (STEVENS, J., concurring).) Given the
state remedy and the holding of
Parratt, there is
286
SOUTER, J., concurring in judgment
neither need nor legitimacy to invoke § 1983 in this case. See
975 F.2d
343, 347 (CA7 1992) (case below).
III
That said, if a State did not provide a tort remedy for
malicious prosecution, there would be force to the argument that
the malicious initiation of a baseless criminal prosecution
infringes an interest protected by the Due Process Clause and
enforceable under § 1983. Compare
Ingraham v.
Wright,
430 U. S., at 676,
id., at 701-702 (STEVENS, J.,
dissenting), and
Board of Regents of State Colleges v.
Roth, 408 U. S. 564, 573 (1972), with
Paul v.
Davis, supra, at 711-712; see
PruneYard Shopping
Center v.
Robins, 447 U. S. 74, 93-94 (1980)
(Marshall, J., concurring);
Martinez v.
California,
444 U. S. 277,
281-282 (1980);
Munn v.
Illinois, 94 U. S. 113, 134 (1877).
But given the state tort remedy, we need not conduct that inquiry
in this case.
***
For these reasons, I concur in the judgment of the Court holding
that the dismissal of petitioner Albright's complaint was
proper.
JUSTICE SOUTER, concurring in the judgment.
While I agree with the Court's judgment that petitioner has not
justified recognition of a substantive due process violation in his
prosecution without probable cause, I reach that result by a route
different from that of the plurality. The Court has previously
rejected the proposition that the Constitution's application to a
general subject (like prosecution) is necessarily exhausted by
protection under particular textual guarantees addressing specific
events within that subject (like search and seizure), on a theory
that one specific constitutional provision can pre-empt a broad
field as against another more general one. See
United States
v.
James Daniel Good Real Property, ante, at 49 ("We have
rejected the
287
view that the applicability of one constitutional amendment
pre-empts the guarantees of another");
Soldal v.
Cook
County, 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. Where such multiple violations are alleged, we are not in
the habit of identifying as a preliminary matter the claim's
'dominant' character. Rather, we examine each constitutional
provision in turn"). It has likewise rejected the view that
incorporation of the substantive guarantees of the first eight
Amendments to the Constitution defines the limits of due process
protection, see
Adamson v.
California, 332 U. S. 46, 89-92 (1947)
(Black, J., dissenting). The second Justice Harlan put it this
way:
"[T]he full scope of the liberty guaranteed by the Due Process
Clause ... is not a series of isolated points .... It is a rational
continuum which, broadly speaking, includes a freedom from all
substantial arbitrary impositions and purposeless restraints .... "
Poe v. Ullman, 367 U. S. 497, 543 (1961)
(dissenting opinion).
We are, nonetheless, required by "[t]he doctrine of judicial
self-restraint ... to exercise the utmost care whenever we are
asked to break new ground in [the] field" of substantive due
process.
Collins v.
Harker Heights, 503 U. S. 115, 125
(1992). Just as the concept of due process does not protect against
insubstantial impositions on liberty, neither should the "rational
continuum" be reduced to the mere duplication of protections
adequately addressed by other constitutional provisions. Justice
Harlan could not infer that the due process guarantee was meant to
protect against insubstantial burdens, and we are not free to infer
that it was meant to be applied without thereby adding a
substantial increment to protection otherwise available. The
importance of recognizing the latter limitation is underscored by
pragmatic concerns about subjecting government actors to two
(potentially inconsistent) standards for the same conduct and
needlessly
288
SOUTER, J., concurring in judgment
imposing on trial courts the unenviable burden of reconciling
well-established jurisprudence under the Fourth and Eighth
Amendments with the ill-defined contours of some novel due process
right. 1
This rule of reserving due process for otherwise homeless
substantial claims no doubt informs those decisions, see
Graham v.
Connor, 490 U. S. 386 (1989),
Gerstein v.
Pugh, 420 U. S. 103 (1975), and
Whitley v.
Albers, 475 U. S. 312, 327
(1986), in which the Court has resisted relying on the Due Process
Clause when doing so would have duplicated protection that a more
specific constitutional provision already bestowed.2 This case
calls for just such restraint, in present-
IJUSTICE STEVENS suggests that these concerns are not for this
Court, since Congress resolved them in deciding to provide a remedy
for constitutional violations under § 1983.
Post, at 312.
The question before the Court, however, is not about the existence
of a statutory remedy for an admitted constitutional violation, but
whether a particular violation of substantive due process, as
distinct from the Fourth Amendment, should be recognized on the
facts pleaded. This question is indisputably within the province of
the Court, and should be addressed with regard for the concerns
about unnecessary duplication in constitutional adjudication
reflected in
Graham v.
Connor, 490 U. S. 386 (1989),
Gerstein v.
Pugh, 420 U. S. 103 (1975), and
Whitley v.
Albers, 475 U. S. 312 (1986).
Nothing in Congress's enactment of § 1983 suggests otherwise.
2 Recognizing these concerns makes sense of what at first blush
may seem a tension between our decisions in
Graham v.
Connor, supra, and
Gerstein v.
Pugh, supra, on
the one hand, and
United States v.
James Daniel Good Real
Property, ante, p. 43, and
Soldal v.
Cook County,
506 U. S. 56 (1992), on the other. The Court held in
Graham that all claims of excessive force by law enforcement
officials in the course of a "seizure" should be analyzed under the
Fourth Amendment's "reasonableness" standard. "Because the Fourth
Amendment provides an explicit textual source of constitutional
protection against this sort of physically intrusive governmental
conduct, that Amendment, not the more generalized notion of
'substantive due process,' must be the guide for analyzing these
claims."
Graham v.
Connor, supra, at 395. The
Gerstein Court held that the Fourth Amendment, not the Due
Process Clause, determines what postarrest proceedings are required
for suspects detained on criminal charges.
Gerstein v.
Pugh, supra. As we recently explained in
United
States v.
James Daniel Good Real Property, ante, at 50,
the Court reasoned in
289
ing no substantial burden on liberty beyond what the Fourth
Amendment is generally thought to redress already.
In framing his claim of infringement of a liberty interest in
freedom from the initiation of a baseless prosecution, petitioner
has chosen to disclaim any reliance on the Fourth Amendment seizure
that followed when he surrendered himself into police custody.
Petitioner has failed, however, to allege any substantial injury
that is attributable to the former event, but not the latter. His
complaint presents an extensive list of damages: limitations on his
liberty, freedom of association, and freedom of movement by virtue
of the terms of his bond; financial expense of his legal defense;
reputational harm among members of the community; inability to
transact business or obtain employment in his local area,
necessitating relocation to St. Louis; inability to secure credit;
and personal pain and suffering. See App. to Pet. for Cert.
49a-50a. None of these injuries, however, is alleged to have
followed from the issuance of the formal instrument of prosecution,
as distinct from the ensuing assertion of custody. Thus, petitioner
has not shown a substantial deprivation of liberty from the mere
initiation of prosecution.
The significance of this failure follows from the recognition
that none of petitioner's alleged injuries has been treated by the
Courts of Appeals as beyond the ambit of compensability
Gerstein that the Fourth Amendment "balance between
individual and public interests always has been thought to define
the 'process that is due' for seizures of person or property in
criminal cases." See
Gerstein, supra, at 125, n. 27. Thus,
in both
Gerstein and
Graham, separate analysis under
the Due Process Clause was dispensed with as redundant. The Court
has reached the same result in the context of claims of unnecessary
and wanton infliction of pain in penal institutions. See
Whitley v.
Albers, supra, at 327 ("It would indeed be
surprising if ... 'conduct that shocks the conscience' or
'afford[s] brutality the cloak of law,' and so violates the
Fourteenth Amendment,
Rochin v.
California, 342 U. S. 165, 172, 173
(1952), were not also punishment 'inconsistent with contemporary
standards of decency' and 'repugnant to the conscience of mankind,'
Estelle v.
Gamble, 429 U. S., at 103, 106, in
violation of the Eighth").
290
SOUTER, J., concurring in judgment
under the general rule of 42 U. S. C. § 1983 liability for a
seizure unlawful under Fourth Amendment standards, see
Tennessee v.
Garner, 471 U. S. 1 (1985)
(affirming § 1983 liability based on Fourth Amendment violation);
Brower v.
County of Inyo, 489 U. S. 593, 599 (1989)
(unreasonable seizure in violation of the Fourth Amendment gives
rise to § 1983 liability). On the contrary, the Courts of Appeals
have held that injuries like those petitioner alleges are
cognizable in § 1983 claims founded upon arrests that are bad under
the Fourth Amendment. See,
e. g., Hale v.
Fish,
899 F.2d
390, 403-404 (CA5 1990) (affirming award of damages for mental
anguish, harm to reputation, and legal fees for defense);
B.
C.
R. Transport Co., Inc. v.
Fontaine, 727 F.2d
7, 12 (CA1 1984) (affirming award of damages for destruction of
business due to publicity surrounding illegal search);
Sims
v.
Mulcahy, 902 F. 2d 524, 532-533 (CA7 1990) (approving
damages for pain, suffering, and mental anguish in the context of a
challenge to jury instructions);
Sevigny v.
Dicksey,
846 F.2d
953, 959 (CA4 1988) (affirming damages for extreme emotional
distress);
Dennis v.
Warren, 779
F.2d 245, 248-249 (CA5 1985) (affirming award of damages for
pain, suffering, humiliation, and embarrassment);
Konczak v.
Tyrrell, 603 F.2d
13, 17 (CA7 1979) (affirming damages for lost wages, mental
distress, humiliation, loss of reputation, and general pain and
suffering).
Indeed, it is not surprising that rules of recovery for such
harms have naturally coalesced under the Fourth Amendment, since
the injuries usually occur only after an arrest or other Fourth
Amendment seizure, an event that normally follows promptly (three
days in this case) upon the formality of filing an indictment,
information, or complaint. There is no restraint on movement until
a seizure occurs or bond terms are imposed. Damage to reputation
and all of its attendant harms also tend to show up after arrest.
The defendant's mental anguish (whether premised on reputational
harm, burden of defending, incarceration, or some other con-
291
sequence of prosecution) customarily will not arise before an
arrest, or at least before the notification that an arrest warrant
has been issued, informs him of the charges.
There may indeed be exceptional cases where some quantum of harm
occurs in the interim period after groundless criminal charges are
filed but before any Fourth Amendment seizure. Whether any such
unusual case may reveal a substantial deprivation of liberty, and
so justify a court in resting compensation on a want of government
power or a limitation of it independent of the Fourth Amendment,
are issues to be faced only when they arise. They do not arise in
this case and I accordingly concur in the judgment of the
Court.3
JUSTICE STEVENS, with whom JUSTICE BLACKMUN joins,
dissenting.
The Fifth Amendment to the Constitution constrains the power of
the Federal Government to accuse a citizen of an infamous crime.
Under that Amendment, no accusation may issue except on a grand
jury determination that there is probable cause to support the
accusation.1 The question presented by this case is whether the Due
Process Clause of the Fourteenth Amendment imposes any comparable
constraint on state governments.
3JUSTICE STEVENS argues that the fact that "few of petitioner's
injuries flowed
solely from the filing of the charges
against him does not make those injuries insubstantial,"
post, at 312 (emphasis in original), and maintains that the
arbitrary filing of criminal charges may work substantial harm on
liberty.
Ibid. While I do not quarrel with either
proposition, neither of them addresses the threshold question
whether the complaint alleges any substantial deprivation beyond
the scope of what settled law recognizes at the present time.
1 "No person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a Grand
Jury, except in cases arising in the land or naval forces, or in
the Militia, when in actual service in time of War or public danger
.... " u. S. Const., Arndt. 5. See also
United States v.
Calandra, 414
U. S. 338, 343 (1974).
292
In
Hurtado v.
California, 110 U. S. 516 (1884), we
decided that the Due Process Clause does not compel the States to
proceed by way of grand jury indictment when they initiate a
prosecution. In reaching that conclusion, however, we noted that
the substance of the federal guarantee was preserved by
California's requirement that a magistrate certify "to the probable
guilt of the defendant."
Id., at 538. In accord with
Hurtado, I would hold that Illinois may dispense with the
grand jury procedure only if the substance of the probable-cause
requirement remains adequately protected.2
I
Assuming, as we must, that the allegations of petitioner's
complaint are true, it is perfectly clear that the probablecause
requirement was not satisfied in this case. Indeed, it is plain
that respondent Oliver, who attested to the criminal information
against petitioner, either knew or should have known that he did
not have probable cause to initiate criminal proceedings.
Oliver's only evidence against petitioner came from a paid
informant who established her
unreliability on more than 50
occasions, when her false accusations led to aborted and dismissed
prosecutions.3 Nothing about her performance in
2 In
Hurtado, 110 U. S., at 532, the Court made this
comment on the traditions inherited from English law, with
particular reference to the Magna Carta:
"Applied in England only as guards against executive usurpation
and tyranny, here they have become bulwarks also against arbitrary
legislation; but, in that application, as it would be incongruous
to measure and restrict them by the ancient customary English law,
they must be held to guarantee not particular forms of procedure,
but the very substance of individual rights to life, liberty, and
property.
" ... Such regulations, to adopt a sentence of Burke's, 'may
alter the mode and application but have no power over the substance
of original justice.' "
3 According to the complaint, Oliver, a detective in the Macomb,
Illinois, Police Department, agreed to provide Veda Moore with
protection and money in exchange for her assistance in acting as a
confidential inform-
293
this case suggested any improvement on her record. The substance
she described as cocaine turned out to be baking soda. She twice
misidentified her alleged vendor before, in response to a leading
question, she agreed that petitioner might be he; 4 in fact, she
had never had any contact with petitioner. As the Court of Appeals
correctly concluded, the commencement of a serious criminal
proceeding on such "scanty grounds" was nothing short of
"shocking." 5
ant. Allegedly, Moore, addicted to cocaine, lied to Oliver about
her undercover purchases of controlled substances in order to
receive the promised payments. During the course of her tenure as
an informant, Moore falsely implicated over 50 individuals in
criminal activity, resulting each time in a dismissed
prosecution.
4 Relying entirely on information provided by Moore, Oliver
testified before a grand jury and secured an indictment against a
first suspect, John Albright, Jr., for selling a "look-alike"
substance in violation of Illinois law. When he attempted to arrest
John Albright, Jr., however, Oliver became convinced that he had
the wrong man, and substituted the name of a second suspect,
Albright's son, on the arrest warrant. Once again, it became clear
that Oliver's suspect could not have committed the crime. Oliver
then asked Moore whether her vendor might have been a different son
of the man she had first identified. When Moore admitted of that
possibility, Oliver attested to the criminal information charging
petitioner, his third and final suspect, with a felony.
5 "Detective Oliver made no effort to corroborate Veda Moore's
unsubstantiated accusation. A heap of baking soda was no
corroboration. Her initial misidentification of the seller cast
grave doubt on the accuracy of her information. And this was part
of a pattern: of fifty persons she reported to Oliver as
trafficking in drugs, none was successfully prosecuted for any
crime. In the case of 'Albright,' Oliver should have suspected that
Moore had bought cocaine either from she knew not whom or from
someone she was afraid to snitch on (remember that she had gone to
work for Oliver in the first place because she was being threatened
by a man to whom she owed money for previous purchases of cocaine),
that she had consumed it and replaced it with baking soda, and that
she had then picked a name from the phone book at random. The fact
that she used her informant's reward to buy cocaine makes this
hypothesis all the more plausible. An arrest is a serious business.
To arrest a person on the scanty grounds that are alleged to be all
that Oliver had to go on is shocking."
975 F.2d
343, 345
(CA7 1992).
294
These shocking factual allegations give rise to two important
questions of law: does the commencement of formal criminal
proceedings deprive the accused person of "liberty" as that term is
used in the Fourteenth Amendment; and, if so, are the demands of
"due process" satisfied solely by compliance with certain
procedural formalities which ordinarily ensure that a prosecution
will not commence absent probable cause? I shall discuss these
questions separately, and then comment on the several opinions
supporting the Court's judgment.
II
Punishment by confinement in prison is a frequent conclusion of
criminal proceedings. Had petitioner's prosecution resulted in his
conviction and incarceration, then there is no question but that
the Due Process Clause would have been implicated; a central
purpose of the Fourteenth Amendment was to deny States the power to
impose this sort of deprivation of liberty until after completion
of a fair trial. Over the years, however, our cases have made it
clear that the interests protected by the Due Process Clause extend
well beyond freedom from an improper criminal conviction.
As a qualitative matter, we have decided that the liberty
secured by the Fourteenth Amendment is significantly broader than
mere freedom from physical constraint. Although its contours have
never been defined precisely, that liberty surely includes the
right to make basic decisions about the future; to participate in
community affairs; to take advantage of employment opportunities;
to cultivate family, business, and social relationships; and to
travel from place to place.6 On a quantitative level, we have, to
be sure, ac-
6 As we stated in
Meyer v.
Nebraska, 262 U. S. 390 (1923):
''While this Court has not attempted to define with exactness
the liberty thus guaranteed, the term has received much
consideration and some of the included things have been definitely
stated. Without doubt, it denotes not merely freedom from bodily
restraint but also the right of the individual to contract, to
engage in any of the common occupations of life,
295
knowledged that not every modest impairment of individual
liberty amounts to a deprivation raising constitutional concerns.
Cf.
Meachum v.
Fano, 427 U. S. 215 (1976). At
the same time, however, we have recognized that a variety of state
actions have such serious effects on protected liberty interests
that they may not be undertaken arbitrarily,7 or without observing
procedural safeguards.8
In my opinion, the formal commencement of a criminal proceeding
is quintessentially this type of state action. The initiation of a
criminal prosecution, regardless of whether it
to acquire useful knowledge, to marry, establish a home and
bring up children, to worship God according to the dictates of his
own conscience, and generally to enjoy those privileges long
recognized at common law as essential to the orderly pursuit of
happiness by free men."
Id., at 399 (citations omitted).
7 See,
e. g., Turner v.
Safley, 482 U. S. 78, 94-99 (1987)
(invalidating prison regulation of inmate marriages);
Moore
v.
East Cleveland, 431 U. S. 494, 500 (1977)
(striking down ordinance that prohibited certain relatives from
residing together because it had only a "tenuous relation" to its
goals);
Wieman v.
Updegraff, 344 U. S. 183, 191 (1952)
(requiring loyalty oaths of public employees violates due process
because "[i]ndiscriminate classification of innocent with knowing
activity must fall as an assertion of arbitrary power");
Pierce v.
Society of Sisters, 268 U. S. 510, 534-535
(1925) (state law requiring parents to send children to public
school violates due process because "rights guaranteed by the
Constitution may not be abridged by legislation which has no
reasonable relation to some purpose within the competency of the
State").
8See,
e. g., Cleveland Bd. of Ed. v.
Loudermill,
470 U. S. 532,
542 (1985) ("An essential principle of due process is that a
deprivation of life, liberty, or property 'be preceded by notice
and opportunity for hearing appropriate to the nature of the
case''') (quoting
Mullane v.
Central Hanover Bank
&
Trust Co., 339 U. S. 306, 313
(1950));
Goss v.
Lopez, 419 U. S. 565, 581 (1975)
("[D]ue process requires, in connection with a suspension of 10
days or less, that the student be given oral or written notice of
the charges against him and, if he denies them, an explanation of
the evidence the authorities have and an opportunity to present his
side of the story");
Wisconsin v.
Constantineau,
400 U. S. 433,
436-437 (1971) ("Where a person's good name, reputation, honor, or
integrity is at stake because of what the government is doing to
him, notice and an opportunity to be heard are essential").
296
prompts an arrest, immediately produces "a wrenching disruption
of everyday life."
Young v.
United States ex rel. Vuitton
et Fils S.
A., 481 U. S. 787,814 (1987).
Every prosecution, like every arrest, "is a public act that may
seriously interfere with the defendant's liberty, whether he is
free on bail or not, and that may disrupt his employment, drain his
financial resources, curtail his associations, subject him to
public obloquy, and create anxiety in him, his family and his
friends."
United States v.
Marion, 404 U. S. 307, 320
(1971). In short, an official accusation of serious crime has a
direct impact on a range of identified liberty interests. That
impact, moreover, is of sufficient magnitude to qualify as a
deprivation of liberty meriting constitutional protection.9
III
The next question, of course, is what measure of "due process"
must be provided an accused in connection with this deprivation of
liberty. In
In re Winship, 397 U. S. 358, 361364
(1970), we relied on both history and certain societal interests to
find that, in the context of criminal conviction, due process
entails proof of guilt beyond a reasonable doubt. The same
considerations support a requirement that criminal prosecution be
predicated, at a minimum, on a finding of probable cause.
It has been the historical practice in our jurisprudence to
withhold the filing of criminal charges until the state can marshal
evidence establishing probable cause that an identifiable defendant
has committed a crime. This long tradition
9 The Court of Appeals was persuaded that the Court's reasoning
in
Paul v.
Davis, 424 U. S. 693 (1976),
required a different conclusion. 975 F. 2d, at 345. Even if one
accepts the dubious proposition that an individual's interest in
his or her reputation
simpliciter is not an interest in
liberty,
Paul v.
Davis recognized that liberty is
infringed by governmental conduct that injures reputation in
conjunction with other interests. 424 U. S., at 701. The
commencement of a criminal prosecution is certainly such
conduct.
297
is reflected in the common-law tort of malicious prosecution,lO
as well as in our cases.ll In addition, the probablecause
requirement serves valuable societal interests, protecting the
populace from the whim and caprice of governmental agents without
unduly burdening the government's prosecutorial function.12
Consistent with our reasoning in
Winship, these factors lead
to the conclusion that one element of the "due process" prescribed
by the Fourteenth Amendment is a responsible decision that there is
probable cause to prosecute. 13
Illinois has established procedures intended to ensure that
evidence of "the probable guilt of the defendant," see
Hur-
10 See,
e. g., W. Keeton, D. Dobbs, R. Keeton,
& D. Owen, Prosser and Keeton on Law of Torts § 119, pp.
876-882 (5th ed. 1984).
11 Wayte v. United States,
470 U. S. 598, 607
(1985); Bordenkircher v.
Hayes, 434
U. S. 357, 364 (1978) ("In our system, so long as the
prosecutor has probable cause to believe that the accused committed
an offense defined by statute, the decision whether or not to
prosecute, and what charge to file or bring before a grand jury,
generally rests entirely in his discretion");
Gerstein v.
Pugh, 420 U.
S. 103, 119 (1975) ("The standard of proof required of the
prosecution is usually referred to as 'probable cause,' but in some
jurisdictions it may approach a prima facie case of guilt"); see
also
United States v.
Lovasco, 431 U. S. 783, 791 (1977)
(noting that "it is unprofessional conduct for a prosecutor to
recommend an indictment on less than probable cause") (footnote
omitted);
United States v.
Calandra, 414 U. S., at
343 (noting that one of the "grand jury's historic functions" was
to determine whether probable cause existed);
Dinsman v.
Wilkes, 12 How. 390, 402 (1852) (noting that instigation of
a criminal prosecution without probable cause creates an action for
malicious prosecution).
12 Because probable cause is already required for an arrest, and
proof beyond a reasonable doubt for a conviction, the burden on law
enforcement is not appreciably enhanced by a requirement of
probable cause for prosecution.
13 I thus disagree with dicta to the contrary in a footnote in
Gerstein v.
Pugh, 420 U. S., at 125, n. 26 ("Because the probable
cause determination is not a constitutional prerequisite to the
charging decision, it is required only for those suspects who
suffer restraints on liberty other than the condition that they
appear for trial"). As I have explained, the commencement of
criminal proceedings itself infringes on liberty interests,
regardless of the restraints imposed.
298
tado, 110 U. S., at 538, has been assembled before a
criminal prosecution is pursued.14 Petitioner does not challenge
the general adequacy of these procedures. Rather, he claims that
the probable-cause determination in his case was invalid as a
substantive matter, because it was wholly unsupported by reliable
evidence and tainted by Oliver's disregard or suppression of facts
bearing on the reliability of his informant. This contention
requires us to consider whether a state's compliance with facially
valid procedures for initiating a prosecution is by itself
sufficient to meet the demands of due process, without regard to
the substance of the resulting probable-cause determination.
Fortunately, our prior cases have rejected such a formalistic
approach to the Due Process Clause. In
Mooney v.
Holohan,
294
U. S. 103, 110 (1935), a criminal defendant claimed that the
prosecutor's knowing use of perjured testimony, and deliberate
suppression of evidence that would have impeached that testimony,
constituted a denial of due process. The State urged us to reject
this submission on the ground that the petitioner's trial had been
free of procedural error. Our treatment of the State's argument
should dispose of the analogous defense advanced today:
"Without attempting at this time to deal with the question at
length, we deem it sufficient for the present purpose to say that
we are unable to approve this narrow view of the requirement of due
process. That requirement, in safeguarding the liberty of the
citizen against deprivation through the action of the State,
embodies the fundamental conceptions of justice which lie
14 At the time of this suit, Illinois law allowed the filing of
felony charges only by information or indictment. Ill. Rev. Stat.,
Ch. 38, § 111-2(a) (1987). If the filing were by information, as
was the case here, then the charges could be filed but not pursued
until a preliminary hearing had been held or waived pursuant to Ch.
38, § 109-3, and, if held, had concluded in a finding of probable
cause to believe that the defendant had committed an offense. Ch.
38, §§ 111-2(a), 109-3.
299
at the base of our civil and political institutions.
Hebert v. Louisiana, 272 U. S. 312, 316, 317
[(1926)]. It is a requirement that cannot be deemed to be satisfied
by mere notice and hearing if a State has contrived a conviction
through the pretense of a trial which in truth is but used as a
means of depriving a defendant of liberty through a deliberate
deception of court and jury by the presentation of testimony known
to be perjured. Such a contrivance by a State to procure the
conviction and imprisonment of a defendant is as inconsistent with
the rudimentary demands of justice as is the obtaining of a like
result by intimidation." Id., at 112.
In the years since
Mooney, we have consistently
reaffirmed this understanding of the requirements of due process.
Our cases make clear that procedural regularity notwithstanding,
the Due Process Clause is violated by the knowing use of perjured
testimony or the deliberate suppression of evidence favorable to
the accused.15 It is, in other words, well established that
adherence to procedural forms will not save a conviction that rests
in substance on false evidence or deliberate deception.
15 See,
e. g., United States v.
Agurs, 427 U. S. 97, 103, and n.
8 (1976) (citing cases);
Giglio v.
United States,
405 U. S. 150,
153-154 (1972) (failure to disclose Government agreement with
witness violates due process);
Brady v.
Maryland,
373 U. S. 83, 87
(1963) ("[S]uppression by the prosecution of evidence favorable to
an accused upon request violates due process where the evidence is
material either to guilt or to punishment, irrespective of the good
faith or bad faith of the prosecution");
Napue v.
Illinois, 360
U. S. 264 (1959) (failure of State to correct testimony known
to be false violates due process);
Pyle v.
Kansas,
317 U. S. 213,
215-216 (1942) (allegations of the knowing use of perjured
testimony and the suppression of evidence favorable to the accused
"sufficiently charge a deprivation of rights guaranteed by the
Federal Constitution, and, if proven, would entitle petitioner to
release from his present custody"). But cf.
United States v.
Williams, 504
U. S. 36 (1992) (prosecutor need not present exculpatory
evidence in his possession to the grand jury).
300
Just as perjured testimony may invalidate an otherwise proper
conviction, so also may the absence of proof render a criminal
conviction unconstitutional. The traditional assumption that "proof
of a criminal charge beyond a reasonable doubt is constitutionally
required,"
Winship, 397 U. S., at 362, has been endorsed
explicitly and tied directly to the Due Process Clause.
Id.,
at 364.16 When the quantum of proof supporting a conviction falls
sufficiently far below this standard, then the Due Process Clause
requires that the conviction be set aside, even in the absence of
any procedural error.
Jackson v.
Virginia, 443 U. S. 307 (1979).
In short, we have already recognized that certain substantive
defects can vitiate the protection ordinarily afforded by a trial,
so that formal compliance with procedural rules is no longer enough
to satisfy the demands of due process. The same is true of a
facially valid determination of probable cause. Even if prescribed
procedures are followed meticulously, a criminal prosecution based
on perjured testimony, or evidence on which "no rational trier of
fact" could base a finding of probable cause, cf.
id., at
324, simply does not comport with the requirements of the Due
Process Clause.
IV
I do not understand the plurality to take issue with the
proposition that commencement of a criminal case deprives the
accused of liberty, or that the state has a duty to make a
probable-cause determination before filing charges. Instead, both
THE CHIEF JUSTICE and JUSTICE SCALIA identify petitioner's reliance
on a "substantive due process" theory as the critical flaw in his
argument. Because there is no substantive due process right
available to petitioner, they
16 "Lest there remain any doubt about the constitutional stature
of the reasonable-doubt standard, we explicitly hold that the Due
Process Clause protects the accused against conviction except upon
proof beyond a reasonable doubt of every fact necessary to
constitute the crime with which he is charged."
In re
Winship, 397 U. S., at 364.
301
conclude, his due process claim can be rejected in its entirety
and without further consideration.
In my opinion, this approach places undue weight on the label
petitioner has attached to his claim.17 The Fourteenth Amendment
contains only one Due Process Clause. Though it is sometimes
helpful, as a matter of doctrine, to distinguish between
substantive and procedural due process, see
Daniels
v.
Williams, 474 U. S. 327, 337-340
(1986) (STEVENS, J., concurring in judgments), the two concepts are
not mutually exclusive, and their protections often overlap.
Indeed, the Fourth Amendment, upon which the plurality
principally relies, provides both procedural and substantive
protections, and these protections converge. When the Court first
held that the right to be free from unreasonable official searches
was "implicit in 'the concept of ordered liberty,'" and therefore
protected by the Due Process Clause of the Fourteenth Amendment,
Wolf v.
Colorado, 338 U. S. 25, 27-28
(1949), it refused to require the States to provide the procedures
accorded in federal trials to protect that right.18
Id., at
28-33. Significantly, however, when we overruled the procedural
component of that decision in
Mapp v.
Ohio, 367 U. S. 643 (1961), we
made it clear that we were "extending the
substantive
protections of due process to all constitutionally unreasonable
searches-state or federal .... "
Id., at 655 (emphasis
added).
Moreover, in
Winship, we found it unnecessary to clarify
whether our holding rested on substantive or procedural due process
grounds; it was enough to say that the "Due
17 In any event, it should be noted that in presenting his
question for review, petitioner invokes the Due Process Clause
generally, without reference to "substantive" due process. See Pet.
for Cert. i.
18 Our refusal in
Wolf to require States to adopt a
federal rule of procedure-the exclusionary rule-paralleled our
earlier refusal in
Hurtado to require States to adopt a
federal rule of procedure-the grand jury process for ascertaining
probable cause. Nevertheless, both cases recognized that the
Fourteenth Amendment protected the substantive rights as implicit
in the concept of ordered liberty.
302
Process Clause" itself requires proof beyond a reasonable doubt.
397 U. S., at 364. Similarly, whether the analogous probable-cause
standard urged by petitioner is more appropriately characterized as
substantive or procedural is not a matter of overriding
significance. In either event, the same Due Process Clause operates
to protect the individual against the abuse of governmental power,
by guaranteeing that no criminal prosecution shall be initiated
except on a finding of probable cause.
v
According to the plurality, the application of certain portions
of the Bill of Rights to the States through the Fourteenth
Amendment "has substituted, in these areas of criminal procedure,
the specific guarantees of the various provisions of the Bill of
Rights ... for the more generalized language contained in the
earlier cases construing the Fourteenth Amendment."
Ante, at
273. The plurality then reasons, in purported reliance on
Graham v.
Connor, 490 U. S. 386 (1989),
that because the Fourth Amendment is designed to address pretrial
deprivations of liberty, petitioner's claim must be analyzed under
that Amendment alone.
Ante, at 273-274. In the end, however,
THE CHIEF JUSTICE concludes that he need not consider petitioner's
claim under the Fourth Amendment after all, because that question
was not presented in the petition for certiorari.
Ante, at
275.
There are two glaring flaws in the plurality's analysis.
First, the pretrial deprivation of liberty at issue in this case
is addressed by a particular Amendment, but not the Fourth; rather,
it is addressed by the Grand Jury Clause of the Fifth Amendment.
That the Framers saw fit to provide a specific procedural guarantee
against arbitrary accusations indicates the importance they
attached to the liberty interest at stake. Though we have not
required the States to use the grand jury procedure itself, it by
no means follows that the underlying liberty interest is unworthy
of Fourteenth Amendment
303
protection. As we explained in
Hurtado, "bulwarks" of
protection such as the Magna Carta and the Due Process Clause
"guarantee not particular forms of procedure, but the very
substance of individual rights to life, liberty, and property."
19
Second, and of greater importance, the cramped view of the
Fourteenth Amendment taken by the plurality has been rejected time
and time again by this Court. In his famous dissenting opinion in
Adamson v.
California, 332 U. S. 46, 89-92
(1947), Justice Black took the position that the Due Process Clause
of the Fourteenth Amendment makes the entire Bill of Rights
applicable to the States. As a corollary, he advanced a theory not
unlike that endorsed today by THE CHIEF JUSTICE and JUSTICE SCALIA:
that the express guarantees of the Bill of Rights mark the outer
limit of Due Process Clause protection.
Ibid. What is
critical, for present purposes, is that the
Adamson majority
rejected this contention and held instead that the "ordered
liberty" protected by the Due Process Clause is not coextensive
with the specific provisions of the first eight Amendments to the
Constitution. Justice Frankfurter's concurrence made this point
perfectly clear:
"It may not be amiss to restate the pervasive function of the
Fourteenth Amendment in exacting from the States observance of
basic liberties .... The Amendment neither comprehends the specific
provisions by which the founders deemed it appropriate to restrict
the federal government nor is it confined to them. The Due Process
Clause of the Fourteenth Amendment has an independent potency ....
" Id., at 66.
In the years since
Adamson, the Court has shown no
inclination to reconsider its repudiation of Justice Black's
posi-
19
Hurtado v.
California, 110 U. S. 516, 532
(1884). See n. 2,
supra.
304
tion.20 Instead, the Court has identified numerous violations of
due process that have no counterparts in the specific guarantees of
the Bill of Rights. And contrary to the suggestion of the
plurality,
ante, at 271-272, 273, these decisions have not
been limited to the realm outside criminal law. As I have already
discussed, it is the Due Process Clause itself, and not some
explicit provision of the Bill of Rights, that forbids the use of
perjured testimony and the suppression of evidence favorable to the
accused.21 Similarly, we have held that the Due Process Clause
requires an impartial judge,22 and prohibits the use of
unnecessarily suggestive identification procedures.23
Characteristically, Justice Black was the sole dissenter when the
Court concluded in
Sheppard v.
Maxwell, 384 U. S. 333 (1966),
that the failure to control disruptive influences in the courtroom
constitutes a denial of due process.
Perhaps most important, and virtually ignored by the plurality
today, is our holding in
In re Winship that "the Due Process
Clause protects the accused against conviction except upon proof
beyond a reasonable doubt." 397 U. S., at 364. Because the
reasonable-doubt standard has no explicit textual source in the
Bill of Rights, the
Winship Court was faced with precisely
the same argument now advanced by THE CHIEF JUSTICE and JUSTICE
SCALIA: Noting the procedural guarantees for which the Bill of
Rights specifically provides in criminal cases, Justice Black
maintained that "[t]he Constitution thus goes into some detail to
spell out what kind
20 Indeed, no other Justice has joined Justice Black in
maintaining that the scope of the Due Process Clause is limited to
the specific guarantees of the Bill of Rights. Although Justice
Douglas joined Justice Black in dissent in
Adamson, he later
retreated from this position. See,
e. g., Griswold v.
Connecticut, 381 U. S. 479, 484
(1965); L. Tribe, American Constitutional Law § 11-2, p. 774, and
n. 32 (2d ed. 1988).
21 See n. 15,
supra.
22 Tumey v.
Ohio, 273 U. S. 510 (1927).
23 Stovall v.
Denno, 388 U. S. 293, 302
(1967). Justice Black dissented.
Id., at 303-306.
305
of trial a defendant charged with crime should have, and I
believe the Court has no power to add to or subtract from the
procedures set forth by the Founders."
Id., at 377
(dissenting opinion). Holding otherwise, the
Winship
majority resoundingly rejected this position, which Justice Harlan
characterized as "fl[ying] in the face of a course of judicial
history reflected in an unbroken line of opinions that have
interpreted due process to impose restraints on the procedures
government may adopt in its dealing with its citizens .... "
Id., at 373, n. 5 (concurring opinion).
Nevertheless, THE CHIEF JUSTICE and JUSTICE SCALIA seem intent
on resuscitating a theory that has never been viable, by reading
our opinion in
Graham v.
Connor more broadly than our
actual holding. In
Graham, which involved a claim of
excessive force in the context of an arrest or investigatory stop,
we held that "[b]ecause the Fourth Amendment provides an explicit
textual source of constitutional protection against this sort of
physically intrusive governmental conduct, that Amendment, not the
more generalized notion of 'substantive due process,' must be the
guide for analyzing these claims." 490 U. S., at 395. Under
Graham, then, the existence of a specific protection in the
Bill of Rights that is incorporated by the Due Process Clause may
preclude what would in any event be redundant reliance on a more
general conception of liberty.24 Nothing in
Graham, however,
forecloses a general due process claim when a more specific source
of protection is absent or, as here, open to question. See
ante, at 275 (reserving ques-
24 Moreover, it likely made no difference to the outcome in
Graham that the Court rested its decision on the Fourth
Amendment rather than the Due Process Clause. The text of the
Fourth Amendment's prohibition against "unreasonable" seizures is
no more specific than the Due Process Clause's prohibition against
deprivations of liberty without "due process." Under either
provision, the appropriate standards for evaluating excessive force
claims must be developed through the same common-law process of
case-by-case adjudication.
306
tion whether Fourth Amendment protects against filing of charges
without probable cause).
At bottom, the plurality opinion seems to rest on one
fundamental misunderstanding: that the incorporation cases have
somehow "substituted" the specific provisions of the Bill of Rights
for the "more generalized language contained in the earlier cases
construing the Fourteenth Amendment."
Ante, at 273. In fact,
the incorporation cases themselves rely on the very "generalized
language" THE CHIEF JUSTICE would have them displacing.25 Those
cases add to the liberty protected by the Due Process Clause most
of the specific guarantees of the first eight Amendments, but they
do not purport to take anything away; that a liberty interest is
not the subject of an incorporated provision of the Bill of Rights
does not remove it from the ambit of the Due Process Clause. I
cannot improve on Justice Harlan's statement of this settled
proposition:
"[T]he full scope of the liberty guaranteed by the Due Process
Clause cannot be found in or limited by the precise terms of the
specific guarantees elsewhere provided in the Constitution. This
'liberty' is not a series of isolated points pricked out in terms
of the taking of property; the freedom of speech, press, and
religion; the right to keep and bear arms; the freedom from
unreason-
25 See,
e. g., Mapp v.
Ohio,
367 U. S. 643,
655 (1961) (applying the exclusionary rule to the States because
"without that rule the freedom from state invasions of privacy
would be so ephemeral ... as not to merit this Court's high regard
as a freedom 'implicit in the concept of ordered liberty' ");
Benton v.
Maryland, 395 U. S. 784, 794 (1969)
(holding that "the double jeopardy prohibition of the Fifth
Amendment represents a fundamental ideal in our constitutional
heritage, and that it should apply to the States through the
Fourteenth Amendment");
Duncan v.
Louisiana, 391 U.
S. 145, 149 (1968) ("Because we believe that trial by jury in
criminal cases is fundamental to the American scheme of justice, we
hold that the Fourteenth Amendment guarantees a right of jury trial
in all criminal cases which-were they to be tried in a federal
court-would come within the Sixth Amendment's guarantee").
307
able searches and seizures; and so on. It is a rational
continuum which, broadly speaking, includes a freedom from all
substantial arbitrary impositions and purposeless restraints ...
and which also recognizes, what a reasonable and sensitive judgment
must, that certain interests require particularly careful scrutiny
of the state needs asserted to justify their abridgment."
Poe v. Ullman, 367 U. S. 497, 543 (1961)
(dissenting opinion).
I have no doubt that an official accusation of an infamous crime
constitutes a deprivation of liberty worthy of constitutional
protection. The Framers of the Bill of Rights so concluded, and
there is no reason to believe that the sponsors of the Fourteenth
Amendment held a different view. The Due Process Clause of that
Amendment should therefore be construed to require a responsible
determination of probable cause before such a deprivation is
effected.
VI
A separate comment on JUSTICE GINSBURG'S opinion is appropriate.
I agree with her explanation of why the initial seizure of
petitioner continued until his discharge and why the seizure was
constitutionally unreasonable. Had it been conducted by a federal
officer, it would have violated the Fourth Amendment. And, because
unreasonable official seizures by state officers are deprivations
of liberty or property without due process of law, the seizure of
petitioner violated the Fourteenth Amendment. Accordingly, JUSTICE
GINSBURG is correct in concluding that the complaint sufficiently
alleges a cause of action under 42 U. S. C. § 1983.
Having concluded that the complaint states a cause of action,
however, her opinion does not adequately explain why a dismissal of
that complaint should be affirmed. Her submission, as I understand
it, rests on the propositions that (1) petitioner abandoned a
meritorious claim based on the component of the Due Process Clause
of the Fourteenth Amendment that is coterminous with the Fourth
Amend-
308
ment; and (2) the Due Process Clause provides no protection for
deprivations of liberty associated with the initiation of a
criminal prosecution unless an unreasonable seizure occurs. For
reasons already stated, I firmly disagree with the second
proposition.
In the Bill of Rights, the Framers provided constitutional
protection against unfounded felony accusations in the Grand Jury
Clause of the Fifth Amendment and separate protection against
unwarranted arrests in the Fourth Amendment. Quite obviously, they
did not regard the latter protection as sufficient to avoid the
harm associated with an irresponsible official accusation of
serious criminal conduct. Therefore, although in most cases an
arrest or summons to appear in court may promptly follow the
initiation of criminal proceedings, the accusation itself causes a
harm that is analytically, and often temporally, distinct from the
arrest. In this very case, the petitioner suffered a significant
injury
before he voluntarily surrendered.26 In other cases a
significant
26 The petitioner was deprived of a constitutionally protected
liberty interest at the moment that he was formally charged with a
crime-an event that occurred
prior to his seizure, and
several months prior to the preliminary hearing. I agree
with JUSTICE GINSBURG that the officer's incomplete testimony at
the preliminary hearing perpetuated the violation of petitioner's
right to be free from unreasonable seizure,
ante, at 279,
but it also perpetuated the violation of his right to be free from
prosecution absent probable cause. As such, contrary to her
suggestion,
ante, at 277, n. 1, either constitutional
violation-the prosecution absent probable cause or the unreasonable
seizure-can independently support an action under 42 U. S. C. §
1983.
Furthermore, although JUSTICE GINSBURG speculates that
respondent may be fully protected from damages liability by an
immunity defense,
ante, at 279, and n. 5, that issue is
neither free of difficulty, cf.
Buckley v.
Fitzsimmons, 509 U. S. 259 (1993), nor
properly before us. See plurality opinion,
ante, at 269, n.
3. The question on which we granted certiorari is whether the
initiation of criminal charges absent probable cause is a
deprivation of liberty protected by the Due Process Clause. Neither
the fact that the seizure caused by petitioner's arrest also
deprived him of liberty, nor the possible availability of an
affirmative defense, is a sufficient reason for failing to discuss
or decide this question. The question
309
interval may separate the formal accusation from the arrest,
possibly because the accused is out of the jurisdiction or because
of administrative delays in effecting the arrestP
Because the constitutional protection against unfounded
accusations is distinct from, and somewhat broader than, the
protection against unreasonable seizures, there is no reason why an
abandonment of a claim based on the seizure should constitute a
waiver of the claim based on the accusation. Moreover, a case
holding that allegations of police misconduct in connection with an
arrest or seizure are adequately reviewed under the Fourth
Amendment's reasonableness standard,
Graham v.
Connor, 490 U.
S. 386 (1989), tells us nothing about how unwarranted
accusations should be evaluated.
Graham merely held that the due process right to be free
from police applications of excessive force when state officers
effect a seizure is governed by the same reasonableness standard as
that governing seizures effected by federal officers.
Id.,
at 394-395. In the unlawful seizure context exemplified by
Graham, there is no need to differentiate between a
so-called Fourth Amendment theory and a substantive due process
theory because they are coextensive.28 Whether viewed through a
Fourth Amendment lens or a sub-
whether one is protected by the Due Process Clause from
unfounded prosecutions has implications beyond whether damages are
ultimately obtainable. Indeed, in this very case petitioner's
complaint sought injunctive relief in addition to damages.
27See,
e. g., Doggett v.
United States, 505 U. S. 647 (1992)
(time lag between indictment and arrest of 81/2 years due in part
to the defendant's absence from the country and in part to the
Government's negligence).
28 It is worthwhile to emphasize that the Fourth Amendment
itself does not apply to state actors. It is only because the Court
has held that the privacy rights protected against federal invasion
by that Amendment are implicit in the concept of ordered liberty
protected by the Due Process Clause of the Fourteenth Amendment
that the Fourth Amendment has any relevance in this case. Strictly
speaking, petitioner's claim is based entirely and exclusively on
the Fourteenth Amendment's Due Process Clause.
310
stantive due process lens, the substantive right protected is
the same.
When, however, the scope of the Fourth Amendment protection does
not fully encompass the liberty interest at stake-as in this
case-it is both unwise and unfair to place a blinder on the lens
that focuses on the specific right being asserted. Although history
teaches us that the Fourth and Fifth Amendments have been viewed
"as running 'almost into each other,'"
Mapp v.
Ohio,
367 U. S., at 646, quoting
Boyd v.
United States,
116 U. S. 616,
630 (1886), and citing
Entick v.
Carrington, 19 How.
St. Tr. 1029 (C. P. 1765), we have never previously thought that
the area of overlapping protection should constrain the independent
protection provided by either.
VII
Although JUSTICE SOUTER leaves open the possibility that in some
future case, a due process claim could be stated for a prosecution
absent probable cause, he concludes that this is not such a case.
He is persuaded that the federal remedy for Fourth Amendment
violations provides an adequate justification for refusing to
"'break new ground'" by recognizing the "novel due process right"
asserted by petitioner.
Ante, at 287, 288. Like THE CHIEF
JUSTICE,
ante, at 271, 275, and JUSTICE GINSBURG,
ante, at 281, he points to
Collins v.
Harker
Heights, 503 U.
S. 115 (1992), as a pertinent example of our reluctance "to
expand the concept of substantive due process ... in [an]
unchartered area."
Id., at 125. Our relevant holding in that
case was that a city's failure to provide an employee with a
reasonably safe place to work did not violate the Federal
Constitution. We unanimously characterized the petitioner's
constitutional claim as "unprecedented."
Id., at 127. The
contrast between
Collins and this case could not be more
stark.
The lineage of the constitutional right asserted in this case
dates back to the Magna Carta. See n. 2,
supra. In an
311
early Massachusetts case, Chief Justice Shaw described it as
follows:
"The right of individual citizens to be secure from an open and
public accusation of crime, and from the trouble, expense and
anxiety of a public trial, before a probable cause is established
by the presentment and indictment of a grand jury, in case of high
offences, is justly regarded as one of the securities to the
innocent against hasty, malicious and oppressive public
prosecutions, and as one of the ancient immunities and privileges
of English liberty." Jones v. Robbins, 74 Mass. 329,
344 (1857).
Moreover, most of the Courts of Appeals have treated claims of
prosecutions without probable cause as within "the ambit of
compensability under the general rule of 42 U. S. C. § 1983
liability," see
ante, at 289-290 (SOUTER, J., concurring in
judgment). See,
e. g., Golino v.
New Haven, 950 F.2d
864, 866-867 (CA2 1991) (and case cited therein), cert. denied,
505 U. S. 1221 (1992);
Robinson v.
Maruffi, 895 F.2d
649, 654-657 (CAlO 1990) (citing cases);
Torres v.
Superintendent of Police of Puerto Rico, 893 F.2d
404, 408 (CA1 1990) (citing cases, and finding cause of action
if "egregious");
Goodwin v.
Metts, 885 F.2d
157, 162 (CA4 1989) (citing cases), cert. denied, 494 U. S.
1081 (1990);
Rose v.
Bartle, 871
F.2d 331, 348-349 (CA3 1989) (citing cases);
Strength v.
Hubert, 854 F. 2d 421 (CAll 1988);
Wheeler v.
Cosden Oil &
Chemical Co., 734 F.2d
254 (CA5 1984).
Given the abundance of precedent in the Courts of Appeals, the
vintage of the liberty interest at stake, and the fact that the
Fifth Amendment categorically forbids the Federal Government from
initiating a felony prosecution without presentment to a grand
jury, it is quite wrong to characterize petitioner's claim as an
invitation to enter unchartered territory. On the contrary, the
claim is manifestly of constitutional dimension.
312
This conclusion should end our inquiry. Whether the Due Process
Clause in any given case may provide a "duplication of
protections,"
ante, at 287 (SOUTER, J., concurring in
judgment) is irrelevant to whether a liberty interest is at
stake.29 Even assuming the dubious proposition that, in this case,
due process protection against a baseless prosecution may not
provide "a substantial increment to protection otherwise
available,"
ibid.,30 that is a consideration relevant only
to damages, not to the existence of constitutional protection.
Furthermore, that few of petitioner's injuries flowed
solely
from the filing of the charges against him does not make those
injuries insubstantial. To the contrary, I can think of few powers
that the State possesses which, if arbitrarily imposed, can harm
liberty as substantially as the filing of criminal charges.
29 JUSTICE SOUTER relies in part upon "pragmatic concerns about
subjecting government actors to two (potentially inconsistent)
standards for the same conduct."
Ante, at 287. I see no
basis for that concern in this case. Moreover, Congress properly
weighs "pragmatic concerns" when it decides whether to provide a
remedy for a violation of federal law. Such concerns motivated the
enactment of § 1983-a statute that provides a remedy for
constitutional violations. Thus, if such a violation is allegedand
I am satisfied that one is here-we have a duty to enforce the
statute without examining pragmatic concerns.
30 It seems to me quite wrong to attribute to a subsequent
arrest the reputational and other harms caused by an unjustified
accusation. In addition, although JUSTICE GINSBURG is prepared to
hold that a Fourth Amendment claim does not accrue until the
baseless charges are dismissed, at least some of the Courts of
Appeals have held that the arrest triggers the running of the
statute of limitations. See,
e. g., Rose v.
Bartle,
871 F.2d
331, 351
(CA3 1989);
McCune v.
Grand
Rapids, 842 F.2d
903, 906
(CA6 1988);
Mack v.
Varelas,
835 F.2d
995, 1000
(CA2 1987); Venegas v.
Wagner,
704 F.2d
1144, 1146
(CA9 1983). And, given the disposition of
this case, a majority of this Court might agree. In any event,
uncertainties about such matters counsel against constitutional
adjudication based upon "pragmatic concerns."
313
VIII
While the supposed adequacy of an alternative federal remedy
persuades JUSTICES GINSBURG and SOUTER that petitioner's claim
fails, the availability of an alternative state remedy convinces
JUSTICE KENNEDY. I must therefore explain why I do not agree with
his reliance on
Parratt v.
Taylor, 451 U. S. 527 (1981). In
1975, I helped plant the seed that ultimately flowered into the
Parmtt doctrine. See
Bonner v.
Coughlin,
517 F.2d
1311, 1318-1319 (CA7 1975), modified en banc,
545 F.2d
565 (1976), cert. denied, 435 U. S. 932 (1978) (cited in
Parmtt v.
Taylor, 451 U. S., at 541-542). The
plaintiff in
Bonner, like the plaintiff in
Parmtt,
claimed that the negligence of state agents had deprived him of a
property interest "without due process of law." In both cases, the
claim was rejected because a predeprivation remedy was infeasible
and the State's postdeprivation remedy was considered adequate to
prevent a constitutional violation.
Parmtt v.
Taylor,
451 U. S., at 543-544;
Bonner v.
Coughlin, 517 F. 2d,
at 1319-1320. Both of those cases involved the type of ordinary
common-law tort that can be committed by anyone. Such torts are not
deprivations "without due process" simply because the tortfeasor is
a public official.
The rationale of those cases is inapplicable to this case
whether one views the claim at issue as substantive or
procedural.31 If one views the petitioner's claim as one of
substantive due process,
Parmtt is categorically
inapplicable.
Zinermon v.
Burch, 4
94 U. S. 113, 125 (1990).
Conversely, if one views his claim as one of procedural due
process,
Parratt is also inapplicable, because its rationale
does not apply to officially authorized deprivations of liberty or
property.
31 See 1 S. N ahmod, Civil Rights and Civil Liberties
Litigation: The Law of Section 1983, § 3.15, pp. 211-212 (3d ed.
1991).
314
Thus, contrary to JUSTICE KENNEDY'S conclusion,
ante, at
285, Parratt's "precedential force" does not dispose of this
case. Petitioner was subjected to criminal charges by an
affirmative, deliberate act of a state officia1.32 The filing of
criminal charges is effectuated through established state
procedures under which government agents, such as respondent
Oliver, are authorized to act.33 In addition, the State's
authorized agent knows precisely when the deprivation of the
liberty interest to be free from criminal prosecution will
occur-the moment that the charges are filed.34 Therefore, as with
arrest or imprisonment, the State is capable of providing a
reasoned predeprivation determination, at least
ex parte,
prior to the commencement of criminal proceedings.35 See
Zinermon v.
Burch, 494 U. S., at 136-139. Failure to
do so, or to do so in a meaningful way, see
supra, at
298-300, is constitutionally unacceptable.36 Thus, notwithstanding
the possible availability of a state tort action for malicious
prosecution, § 1983 provides a federal remedy for the
constitutional violation alleged by petitioner.
Monroe v.
Pape, 365 U.
S. 167, 183 (1961) ("The federal remedy is supplementary to
the
32 This case is thus distinguishable from
Hudson v.
Palmer, 468 U.
S. 517 (1984), in which petitioner alleged that a prison guard
intentionally destroyed his property.
Id., at 533 (holding
that the Due Process Clause is not violated by random and
unauthorized intentional deprivations of property "until and unless
it provides or refuses to provide a suitable postdeprivation
remedy").
33 See n. 14,
supra.
34 The
Parratt doctrine is also inapplicable here because
it does not apply to cases in which the constitutional deprivation
is complete when the tort occurs.
Zinermon v.
Burch,
4
94 U. S. 113, 125
(1990) (citing
Daniels v.
Williams, 474 U. S. 327,338 (1986)
(STEVENS, J., concurring in judgments)); see
supra, at
313.
35 See,
e. g., Gerstein v.
Pugh, 420 U. S., at 114
(holding that the Fourth Amendment, as applied to the States
through the Due Process Clause of the Fourteenth Amendment,
"requires a judicial determination of probable cause as a
prerequisite to extended restraint of liberty following
arrest").
36 See, e. g., Logan v. Zimmerman Brush Co.,
455 U. S. 422, 435-437
(1982).
315
state remedy, and the latter need not be first sought and
refused before the federal one is invoked") (overruled in part not
relevant here,
Monell v.
New York City Dept. of Social
Servs., 436 U. S.
658, 664-689 (1978)).
The remedy for a violation of the Fourteenth Amendment's Due
Process Clause provided by § 1983 is not limited, as JUSTICE
KENNEDY posits,
ante, at 285, to cases in which the injury
has been caused by "a state law, policy, or procedure." One of the
primary purposes of § 1983 was to provide a remedy "against those
who representing a State in some capacity were
unable or
unwilling to enforce a state law."
Monroe v.
Pape, 365 U. S., at 175-176 (emphasis in original).
Therefore, despite his suggestion to the contrary,
ante, at
285, JUSTICE KENNEDY'S interpretation of
Parmtt is in direct
conflict with both the language and the purposes of § 1983. See
Monroe v.
Pape, 365 U. S., at 172-187.
Section 1983 provides a federal cause of action against "[e]very
person" who under color of state authority causes the "deprivation
of any rights, privileges, or immunities secured by the
Constitution and laws." 42 U. S. C. § 1983. The
Parmtt
doctrine is reconcilable with § 1983 only when its application is
limited to situations in which no constitutional violation occurs.
In the context of certain deprivations of property, due process is
afforded-and therefore the Constitution is not violated-if an
adequate postdeprivation state remedy is available in practice to
provide either the property's prompt return or an equivalent
compensation. See
Bonner v.
Coughlin, 517 F. 2d, at
1320. In other contexts, however, including criminal cases and most
cases involving a deprivation of liberty, the deprivation is
complete, and the Due Process Clause has been violated, when the
loss of liberty occurs.37 In those contexts, any
postdeprivation
37Postdeprivation procedures may provide adequate due process
for deprivations of liberty in limited circumstances. See,
e. g., Zinermon v.
Burch, 494 U. S., at
132 ("[I]n situations where a pre deprivation hearing is unduly
burdensome in proportion to the liberty interest at stake ...
or
316
state procedure is merely a remedy; because it does not provide
the predeprivation process that is "due," it does not avoid the
constitutional violation. In such cases, like this one, § 1983
provides a federal remedy regardless of the adequacy of the state
remedy.
Monroe v.
Pape, 365 U. S., at 183.
IX
The Court's judgment of affirmance is supported by five
different opinions. Significantly, none of them endorses the
reasoning of the Court of Appeals, and none of them commands a
majority. Of greatest importance, in the aggregate those opinions
do not reject my principal submission: the Due Process Clause of
the Fourteenth Amendment constrains the power of state governments
to accuse a citizen of an infamous crime.
I respectfully dissent.
where the State is truly unable to anticipate and prevent a
random deprivation of a liberty interest, postdeprivation remedies
might satisfy due process");
Daniels v.
Williams, 474
U. S., at 342 (STEVENS, J., concurring in judgments) (noting that
Parratt could defeat a procedural due process claim that
alleged a deprivation of liberty when "a pre deprivation hearing
was definitionally impossible");
Ingraham v.
Wright,
430 U. S. 651,
701 (1977) (STEVENS, J., dissenting) (disagreeing with the Court's
holding that the State's postdeprivation remedies for corporal
punishment in the schools satisfied the Due Process Clause, but
noting that "a postdeprivation remedy is sometimes constitutionally
sufficient").
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