In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 04-3949

ANDRE WALLACE,

Plaintiff-Appellant,

v.

CITY OF CHICAGO, KRISTEN KATO

and EUGENE ROY,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 03 CV 2296—Samuel Der-Yeghiayan, Judge.

____________

ARGUED MAY 31, 2005—DECIDED MARCH 8, 2006

____________

Before EASTERBROOK,ROVNER, and WOOD, Circuit Judges.

WOOD, Circuit Judge. From the age of fifteen until

twenty-three, Andre Wallace was serving time in prison

for his alleged participation in a murder. After several

appeals, the Illinois Appellate Court found that the police had arrested him without probable cause and that

his confession was not sufficiently attenuated from his

unlawful arrest. At that point, the prosecution decided

to leave well enough alone, and Wallace was released.

Only then did Wallace commence the present action: he

filed a suit under 42 U.S.C. § 1983 in federal court asserting

that Detectives Kato and Roy and the City of Chicago had

violated his Fourth Amendment rights and that they had
2 No. 04-3949

Œ Because this opinion would overrule an earlier decision of

this court, in the manner described in Part II.A. below, it has been

circulated among all judges of this court in regular active service.

A majority did not wish to hear the case en banc. Circuit Judge

Posner voted to hear the case en banc for the reasons stated in his

dissent.

also committed the state torts of malicious prosecution and

false imprisonment. The district court granted summary

judgment in favor of all three defendants. We affirm. In

doing so, we have found it necessary to clarify the law of our

circuit concerning when a false arrest claim accrues. We

reaffirm the holding of Booker v. Ward, 94 F.3d 1052, 1056-

57 (7th Cir. 1996), that false arrest claims accrue at the

time of arrest; to the extent that it is inconsistent with

Booker v. Ward and the present opinion, we overrule

Gauger v. Hendle, 349 F.3d 354 (7th Cir. 2003).Œ

I

On January 17, 1994, John Handy was shot and killed

at 825 N. Lawndale Avenue near the intersection of Chicago

Avenue and Lawndale. Handy had been working as a house

sitter for a construction company and had apparently had

a previous confrontation with drug dealers in the area.

Detectives Kristen Kato and Eugene Roy were assigned to

investigate Handy’s murder. After discussing the murder

with witnesses and informants in the neighborhood, the

police brought Wallace and Laron Jackson in for questioning on the night of January 19, 1994. At the time, the police

were not aware that Wallace was only 15 years old because

Wallace had told them he was 17 years old.

During the course of the night, Detectives Kato and Roy

took turns interrogating Wallace. Wallace, they claim, was

free to leave the station house at any time. Wallace’s

account is somewhat different: he reported that Kato
No. 04-3949 3

and Roy played “good cop/bad cop” with him to induce

him to confess falsely. Kato was the bad guy; whenever

Kato took a break, Roy spoke with Wallace and told him

that if he confessed, Roy could get Kato to stop hurting him.

This continued through the night. At about 4:15 a.m., the

detectives confronted Wallace with Jackson’s and another

witness’s statements that they saw Wallace running down

the gangway from 825 N. Lawndale after hearing shots.

Wallace then admitted that he was only 15. Around 6:00

a.m., Wallace agreed to confess. A youth officer and an

assistant state’s attorney met with Wallace and read him

his Miranda rights and took his written statement. In his

complaint, Wallace claims that Kato told him not to tell the

state’s attorney that Kato had promised Wallace that he

could go home after he gave his statement.

Before his trial, Wallace filed several motions to suppress

his statements on the grounds that his arrest had been

made without probable cause and that the statements were

coerced and violated his Miranda rights. His motions were

all denied. On April 19, 1996, after a bench trial, Wallace

was found guilty of first degree murder.

Wallace appealed. In an opinion issued on September 21,

1998, the Illinois Appellate Court found that the police

arrested him without probable cause and remanded for

a hearing to determine whether his statements were

sufficiently attenuated from his unlawful arrest to permit their use. On remand, the circuit court found that

Wallace’s confession was sufficiently attenuated from his

arrest and affirmed his conviction. Wallace appealed again,

and the Illinois Appellate Court reversed the circuit court’s

decision and remanded for a new trial. On April 10, 2002,

the prosecution filed a nolle prosequi motion and dropped

the case.

On April 2, 2003, Wallace filed the present suit, asserting

that his Fourth Amendment rights had been violated and
4 No. 04-3949

raising state law claims for false imprisonment and malicious prosecution. Kato and Roy filed an answer and a

motion for summary judgment, and the City filed a motion

to dismiss. On October 21, 2003, Wallace filed his response,

just a week before we decided Gauger v. Hendle, which held

that under the circumstances presented there the statute of

limitations did not begin to run until the defendant’s

conviction was invalidated. 349 F.3d at 361-62.

On March 30, 2004, the district court granted summary

judgment for Roy and Kato on all claims except Wallace’s

federal fair trial claim, which it denied without prejudice. The court also denied without prejudice the City’s

motion to dismiss under Fed. R. Civ. P. 12(b)(6). Wallace

filed an amended complaint on April 28, 2004, reasserting

his Fourth Amendment claims. The defendants answered

and filed a second motion for summary judgment, which

included an affirmative defense of collateral estoppel.

Wallace’s response asserted that the defendants had waived

their collateral estoppel defense by failing to raise it in their

answer to his amended complaint. The defendants moved to

amend their answer.

On October 29, 2004, the court granted the defendants’

motion to amend their answer to assert their collateral

estoppel defense and in the same order granted the defendants’ motion for summary judgment. It concluded

that Wallace had conceded that his false arrest claim

was time-barred. Alternatively, the court held that even

if Wallace was allowed to replead his claim under the

more recent decision in Gauger, he would still be timebarred because Wallace could have brought the claim after

the Illinois Appellate Court found on September 21, 1998,

that Wallace was arrested without probable cause. This was

so even though the appellate court remanded the case to the

trial court to determine whether Wallace’s confession was

sufficiently attenuated from his illegal arrest. The district

court concluded that at this point it was possible that even
No. 04-3949 5

if Wallace was illegally arrested his conviction could still

stand, and thus he could not take advantage of the Gauger

rule.

II

A. False Arrest Claim

Wallace brought his false arrest claim for violation of

his Fourth Amendment rights under 42 U.S.C. § 1983.

Before turning to the merits of the claim, we address briefly

the government’s argument that it is waived (or more

properly, forfeited) because Wallace failed to raise it in a

timely manner in the district court. Our review of

the record shows that Wallace initially conceded that

his false arrest claim was time-barred in the responsive

papers he filed on October 21, 2003, under pre-Gauger law.

After Gauger appeared a week later and before the district court ruled on the defendants’ second motion for

summary judgment, Wallace changed his position and

asserted the merits of the false arrest claim. We therefore conclude that he neither waived nor forfeited this

argument below.

Although federal law governs the question of the accrual of constitutional torts, state statutes of limitations

and tolling doctrines apply once accrual has been determined. See Hardin v. Straub, 490 U.S. 536, 538-39 (1989);

see also Gonzalez v. Entress, 133 F.3d 551, 554 (7th Cir.

1998). Wallace’s false arrest claim is subject to the two-year

statute of limitations supplied by Illinois law under 735

ILCS § 5/13-202. In his case, that period was tolled until

November 7, 1999, two years after Wallace turned eighteen

years old, by virtue of 735 ILCS § 5/13-211. If Wallace’s

claim accrued as of April 10, 2002, when his conviction was

finally nullified and the state dropped his case, then the

suit filed on April 2, 2003, easily met the two-year deadline.

If, on the other hand, his claim accrued at the time of his
6 No. 04-3949

arrest on January 20, 1994, his claim is time-barred, even

taking into account the tolling that occurred during the

period of his minority. Everything depends, therefore, on

the accrual rule we must use.

In principle, there are at least three approaches we could

take to the accrual of Fourth Amendment claims: (1) the

Fourth Amendment claim arises at the time of the wrong

(i.e., the false arrest, the unlawful search); (2) the Fourth

Amendment claim accrues only after the underlying

conviction definitively has been set aside; or (3) as Gauger

suggested, accrual depends on how central the evidence was

to the conviction: if it was non-essential, use rule 1; if it was

critical, use rule 2. Before settling on our preferred option,

it is useful to review the underlying law in this area.

When a person’s Fourth Amendment rights have been

violated by a false arrest, the injury occurs at the time of

the arrest. Thus, an individual is entitled to recover only for

injuries suffered from the time of arrest until his arraignment. Wiley v. City of Chicago, 361 F.3d 994, 998 (7th Cir.

2004) (“[W]e have held that the scope of a Fourth Amendment claim is limited up until the point of arraignment.”);

see also Gauger, 349 F.3d at 363 (“[T]he interest in not

being prosecuted groundlessly is not an interest that the

Fourth Amendment protects.”). On the other hand, as

Wallace’s own case illustrates, it is often the case that the

prosecution cannot proceed without the fruits of an unlawful arrest (as Wallace’s confession was) or an unlawful

search. In those cases, the idea that the claim accrues at

the time of the injury runs into some tension with the

Supreme Court’s decision in Heck v. Humphrey, 512 U.S.

477 (1994).

In Heck, the Court held that a constitutional claim that

would undermine a criminal conviction if vindicated cannot

be brought until the defendant’s conviction is nullified. Id.

at 486-87. This general rule, which works perfectly well for

complaints like the ones about the knowing destruction of
No. 04-3949 7

evidence and illegal identification procedure raised in Heck,

has caused some courts—including this one in Gauger—to

conclude that certain Fourth Amendment claims also do not

accrue until after the defendant’s conviction has been

invalidated. See, e.g., Gauger, 349 F.3d at 362; Harvey v.

Waldron, 210 F.3d 1008, 1015 (9th Cir. 2000) (holding that

Fourth Amendment claims based on illegal search and

seizure of evidence are not cognizable until the conviction is

overturned or charges dismissed); Covington v. City of New

York, 171 F.3d 117, 124 (2d Cir. 1999) (finding

that generally false arrest claims accrue at the time of

arrest, but that if success in the § 1983 case would “imply

the invalidity of a conviction in a pending criminal prosecution,” it does not accrue “so long as the potential for a

judgment in the pending criminal prosecution continues

to exist”).

Heck itself instructs that a district court must:

consider whether a judgment in favor of the plaintiff

would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be

dismissed unless the plaintiff can demonstrate that the

conviction or sentence has already been invalidated.

But if the district court determines that the plaintiff’s

action, even if successful, will not demonstrate the

invalidity of any outstanding criminal judgment against

the plaintiff, the action should be allowed to proceed, in

the absence of some other bar to the suit.

512 U.S. at 487 (emphasis in original) (footnotes omitted).

Footnote seven in Heck anticipates at least some Fourth

Amendment cases. It suggests that despite the general rule

of Heck, a suit for damages arising from an unreasonable

search could go forward as a § 1983 claim without invalidating a criminal prosecution, because of the independent

source or inevitable discovery doctrines. In Gonzalez, we

saw two implications in the footnote: “(i) a claim based on

an unlawful search or arrest may be brought immediately,
8 No. 04-3949

because a violation of the fourth amendment does not

necessarily impugn the validity of a conviction—the evidence may be properly admitted anyway, or it may be

excluded and the defendant convicted on other

evidence—and (ii) a claim of damages based on the injury

of being convicted is impermissible until the conviction has

been overturned.” 133 F.3d at 553 (internal quotation

marks omitted).

In Booker v. Ward, we interpreted Heck to allow a false

arrest claim to go forward before the defendant’s conviction

was invalidated:

[A] wrongful arrest claim, like a number of other Fourth

Amendment claims, does not inevitably undermine a

conviction; one can have a successful wrongful arrest

claim and still have a perfectly valid conviction. Although in this case the Illinois Appellate Court’s

conclusion that Booker’s confession was the inadmissible product of an unlawful arrest ultimately resulted in

the dismissal of murder charges against Booker, in

many cases, the prosecutor will have other witnesses or

other evidence that will support a retrial.

94 F.3d at 1056 (citations omitted). The approach that the

court took looked to the legal nature of the wrongful arrest

claim, rather than to the specific facts of the case.

The Gauger opinion, in contrast, rejects an across-theboard approach to Fourth Amendment claims in favor of

a case-by-case examination under which at least some

false arrest claims would not accrue until after the conviction was invalidated:

It might be argued that Gauger could have sued right

after his arrest, even if he might also have waited

until his criminal conviction was thrown out. But we do

not think that such a conclusion would be consistent

with Heck. For he could not knock out the arrest
No. 04-3949 9

without also (by virtue of Wong Sun [v. United States,

371 U.S. 471 (1963)]) invalidating the use in evidence of

his admissions, without which, as we have said, he

could not be convicted. Heck, to repeat, says that a

criminal defendant can’t sue for damages for violation

of his civil rights, if the ground of his suit is inconsistent with his conviction having been constitutional,

until he gets the conviction thrown out.

349 F.3d at 362. See also Wiley, 361 F.3d at 997-98.

In our view, although it is conceivable that there are

factual differences among Booker’s, Gauger’s, and Wallace’s

cases, the distinctions are unimportant in the end. In

Gauger’s case, the police suspected Gauger of murdering his

parents. 349 F.3d at 356. They brought him in for questioning and Gauger made several incriminating statements

that, according to his version of the interrogation, were

stated as hypotheticals. Id. at 357. Gauger was convicted

and sentenced to death. On appeal, the Illinois Appellate

Court determined that his statements were inadmissable as

the product of an unlawful arrest. Id. The court ordered a

new trial, but the state never retried him and the charges

were dropped after two members of the Outlaws motorcycle

gang confessed killing Gauger’s parents. Id. at 358. The

resemblance to Wallace’s case is plain.

It is true that in Booker’s case, as in Wallace’s, the

state appellate court first remanded for an attenuation

hearing before ordering a new trial. See Booker v. Ward,

94 F.3d at 1054. The result of the attenuation hearing was a

conclusion that the confession was sufficiently attenuated

from the defendant’s unlawful arrest, but the Illinois

Appellate Court reversed. Id. Just as in Wallace’s case, at

this point the prosecution filed a motion for a nolle prosequi,

and the court dropped the charges against Booker. Id. It is

telling that in both Booker’s and Wallace’s cases, the state

appellate court formally decided that the defendant’s
10 No. 04-3949

criminal prosecution could continue even though the arrests

were unlawful. Only the pragmatic judgment of the prosecutors, which could have rested on a conclusion that it was

unlikely that any additional evidence existed, or on a lack

of resources for further investigation, or any of a number of

other factors, caused the cases to end. The rule we articulated in Booker v. Ward recognizes that ex ante it is not

readily apparent which criminal cases might proceed

despite the consequences of the successful Fourth Amendment challenge. This, in our view, argues against a rule

that requires judges several years after the event to

decide whether a particular Fourth Amendment challenge would have been the death knell of the prosecution.

Even if a clear rule is what is needed, we still need to

decide between options (1) and (2) above: that is, between a

rule saying that all claims of this type accrue at the time of

injury, and a rule that they all accrue only when the

criminal conviction has been set aside. The footnote in Heck

to which we referred earlier persuades us that the Supreme

Court did not contemplate the second rule, as it took care to

suggest that the statute of limitations should begin running

on at least some claims at the time of the original injury.

Although the Court refrained from holding that all Fourth

Amendment claims accrue immediately, it had no need to

reach that issue in Heck. We conclude that the approach

taken by Booker v. Ward, while an arguable extension of

Heck, is an extension that is justifiable in light of the

policies behind both the statute of limitations and the need

to avoid unnecessary interference with the outcomes of

criminal proceedings.

To the extent, therefore, that Gauger eschews a clear rule

for false arrest claims in favor of an evaluation of the

evidence, we disapprove its approach and instead reaffirm

our holding in Booker v. Ward that a “§ 1983 unlawful

arrest claim . . . accrue[s] on the day of [ ] arrest.” Id. at

1056-57. Individuals and attorneys who wish to preserve a
No. 04-3949 11

claim for false arrest or similar Fourth Amendment violations should file their civil rights action at the time

of arrest. It will still be possible, of course, for a district

court to stay any such action until the criminal proceedings

are concluded, should it conclude in its discretion that a

stay would be useful. We note as well that we are addressing only the question of accrual; other doctrines, such as

equitable tolling, may also affect the time in which a

particular suit may be brought. See Heck, 512 U.S. at 489

(reserving judgment on whether equitable tolling applies in

this context).

One additional qualification is necessary, which in our

view answers the concerns expressed in the dissent. Heck

itself recognized that it is possible for a § 1983 claim

based on false arrest or a similar Fourth Amendment

violation “necessarily [to] imply the invalidity of [a plaintiff’s] conviction or sentence,” Heck, 512 U.S. at 486 n.6, 487

(example of plaintiff convicted of resisting arrest

who challenges legality of arrest). The case to which the

Court pointed, however, is one in which the fact of a Fourth

Amendment violation is an element of the claim. In that

relatively uncommon set of cases, there is an independent

reason to insist that a plaintiff wait to sue until the criminal conviction has been set aside; if she does not, the

possibility of inconsistent rulings on the validity of the

arrest is too great. Our ruling addresses the normal run

of cases, in which the Fourth Amendment violation affects only the evidence that might or might not be presented

to the trier of fact. In those instances, we are convinced

that a clear accrual rule is superior to a case-by-case

approach.

As the parties have noted, the question of the proper

rule for accrual is an issue that has divided our sister

circuits. Although their reasoning varies, the Second,

Fourth, Fifth, Sixth, and Ninth Circuits have held that false

arrest claims that would undermine the defendant’s
12 No. 04-3949

conviction cannot be brought until the conviction is nullified. See Harvey, 210 F.3d at 1015 (acknowledging circuit

split and holding flatly that “a § 1983 action alleging illegal

search and seizure of evidence upon which criminal charges

are based does not accrue until the criminal charges have

been dismissed or the conviction has been overturned”);

Covington, 171 F.3d at 124; Shamaeizadeh v. Cunigan, 182

F.3d 391, 399 (6th Cir. 1999) (explicitly rejecting suggestion

that § 1983 illegal search claims accrue at the time of

injury, since such a rule would “misdirect the criminal

defendant” from focusing on “mounting a viable defense to

the charges against him”); Cabrera v. City of Huntington

Park, 159 F.3d 374, 380 (9th Cir. 1998) (holding that

success on false arrest claim would “necessarily imply” that

conviction for disturbing the peace was invalid as not based

on probable cause); Brooks v. City of Winston-Salem, 85

F.3d 178, 183 (4th Cir. 1996) (Heck bars civil rights claims

“when a § 1983 plaintiff’s success on a claim that a

warrantless arrest was not supported by probable cause

necessarily would implicate the validity of the plaintiff’s

conviction or sentence”); Mackey v. Dickson, 47 F.3d 744,

746 (5th Cir. 1995) (stating that “a claim of unlawful arrest,

standing alone, does not necessarily implicate the validity

of a criminal prosecution following the arrest,” but staying

the civil action until the criminal prosecution was completed). 

The First, Third, Eighth, Tenth, and Eleventh Circuits

have held that false arrest claims accrue at the time of the

arrest. Nieves v. McSweeney, 241 F.3d 46, 52-53, 52 n.4 (1st

Cir. 2001) (stating that “it is pellucid that all claims based

on the officers’ physical abuse or arrest of the appellants

accrued at the time that those events occurred . . . because

the appellants had ample reason to know of the injury then

and there,” and characterizing as “rare and exotic” the

“circumstances in which a section 1983 claim based on a

warrantless arrest will not accrue at the time of the ar-
No. 04-3949 13

rest”); Beck v. City of Muskogee Police Dep’t, 195 F.3d 553,

558, 559 n.4 (10th Cir. 1999) (“We generally disagree with

the holdings in [Covington and Mackey] because they run

counter to Heck’s explanation that use of illegally obtained

evidence does not, for a variety of reasons, necessarily imply

an unlawful conviction.”); Montgomery v. De Simone, 159

F.3d 120, 126 (3d Cir. 1998) (finding § 1983 false arrest

claim not barred by Heck); Simmons v. O’Brien, 77 F.3d

1093, 1095 (8th Cir. 1996) (finding § 1983 coerced confession claim not barred by Heck); Datz v. Kilgore, 51 F.3d 252,

253 n.1 (11th Cir. 1995) (per curiam) (finding § 1983 illegal

search claim not barred by Heck). By aligning ourselves

with one side of this debate, we do not break any new

ground.

B. False Confession Claim

Wallace also asserts a “false confession” claim that he

claims is actionable under the Fourth Amendment, relying

on the following language in Gauger:

[Gauger’s] incarceration resulted from the combination of a false arrest with (if his testimony is believed)

a false account of his interrogation. If his testimony

is believed, therefore, the seizure of his person was from

the beginning to the end of his incarceration unreasonable, and shouldn’t that bring the allegedly fraudulent

account of his interrogation under the Fourth Amendment?

349 F.3d 360. In support of his claim, Wallace tries to

distinguish a “continuing Fourth Amendment violation”

from the “continuing seizure” theory discussed in Justice

Ginsburg’s concurring opinion in Albright v. Oliver, 510

U.S. 266 (1994). See id. at 279 (Ginsburg, J., concurring).

His efforts are necessary, at least in this court, because

we have already rejected a “continuing seizure” theory in

the Fourth Amendment context. See McCullah v. Gadert,
14 No. 04-3949

344 F.3d 655, 661 (7th Cir. 2003) (citing Reed v. City of

Chicago, 77 F.3d 1049, 1052 n.3 (7th Cir. 1996)). Nonetheless, we find them unavailing. Wallace tries to find some

support for it in Chavez v. Martinez, 538 U.S. 760 (2003),

but as we read that case it dealt only with the Fifth Amendment and the due process clauses. We reject the idea of a

stand-alone “false confession” claim based on the Fourth

Amendment, rather than the Fifth Amendment or the due

process clauses.

C. Fourteenth Amendment Claim

Finally, Wallace tries characterizing his false confession claim as a violation of his Fourteenth Amendment

right to a fair trial. Wallace contends that our decision

in Newsome v. McCabe, 256 F.3d 747 (7th Cir. 2001), allows

for a “false confession” claim as a due process violation. In

Newsome, we affirmed the district court’s decision to deny

qualified immunity to two officers who had withheld

exculpatory evidence from the defendant. Id. at 753. The

reason was because, under Brady v. Maryland, 373 U.S. 83

(1963), officers who withhold such material violate a defendant’s right to a fair trial. 256 F.3d at 752. See also Ienco v.

City of Chicago, 286 F.3d 994, 999 (7th Cir. 2002) (allowing

plaintiff to amend complaint to assert due process claim

against police officers who withheld evidence); Jones v.

Chicago, 856 F.2d 985 (7th Cir. 1988) (allowing claim

against officers who allegedly fabricated evidence and

concealed exculpatory evidence to go forward).

As these brief summaries demonstrate, Newsome, Ienco,

and similar cases do not stand for the proposition that there

is a free-standing due process claim whenever

unfair interrogation tactics (short of those that may

shock the conscience and thereby implicate the Supreme

Court’s substantive due process rulings) are used to

obtain a confession. Instead, they are grounded in tradi-
No. 04-3949 15

tional notions of what is required for a fair trial, including

the Brady right to be given exculpatory material. In the

end, all Wallace has is a complaint about the arrest and the

subsequent confession, and that is the claim we have found

to be time-barred. He cannot escape that result merely by

re-characterizing the claim under a different part of the

Constitution.

III

The City argued in the alternative that Wallace was

not entitled to bring his suit under the Heck rule because the state court proceedings did not conclude in his

favor. It reasons that the state trial court found that his

confession was voluntary; that this finding was not disturbed as a matter of Illinois law when the state appellate

court reversed and remanded the trial court’s judgment;

and that Wallace cannot prevail in his § 1983 action if this

central fact is taken as established. Because we have

resolved this appeal in favor of all three defendants on the

statute of limitations ground, we decline to reach the City’s

alternative argument. It depends centrally on the intricacies of the law of collateral estoppel in Illinois, which is a

topic on which all we could do in any event is to follow the

Illinois courts to the best of our ability.

The judgment of the district court is AFFIRMED.

POSNER, Circuit Judge, dissenting from denial of rehearing en banc. The panel decision creates an intercircuit

conflict on a recurrent issue: when does a claim for damages

arising out of a false arrest or other search or seizure
16 No. 04-3949

forbidden by the Fourth Amendment, or a coerced confession forbidden by the due process clause of the Fifth

Amendment, accrue, when the fruits of the search or the

confession were introduced in the claimant’s criminal trial,

and he was convicted? The panel holds that, except in the

rare case in which a violation of the Fourth Amendment is

an element of the crime with which the defendant is

charged, it always accrues at the time of the arrest, search,

or confession. Every other case to address the issue,

including our own Gauger v. Hendle, 349 F.3d 354 (7th Cir.

2003), holds that it usually accrues then, but not if the

Fourth or Fifth Amendment claim, if valid, would upset the

conviction. If it would, the claim does not accrue unless and

until the conviction is vacated. In other words, a civil rights

suit is not a permissible vehicle for a collateral attack on a

conviction.

That is the holding of Heck v. Humphrey, 512 U.S. 477

(1994). The Court said that the district court must “consider

whether a judgment [in the civil rights suit] in favor of the

plaintiff would necessarily imply the invalidity of

his conviction or sentence; if it would, the complaint must

be dismissed unless the plaintiff can demonstrate that the

conviction or sentence has already been invalidated.” Id. at

486-87. The Court gave the following example of “a § 1983

action that does not seek damages directly attributable to

conviction or confinement but whose successful prosecution

would necessarily imply that the plaintiff’s criminal

conviction was wrongful”: “A state defendant is convicted of

and sentenced for the crime of resisting arrest, defined as

intentionally preventing a peace officer from effecting a

lawful arrest. . . . He then brings a § 1983 action against

the arresting officer, seeking damages for violation of his

Fourth Amendment right to be free from unreasonable

seizures. In order to prevail in this § 1983 action, he

would have to negate an element of the offense of which he

has been convicted. Regardless of the state law concern-
No. 04-3949 17

ing res judicata, . . . the § 1983 action will not lie.” 512 U.S.

at 486 n. 6 (emphasis in original). Faced with this

flat statement, the panel carves the exception to its new

rule that I mentioned in the first paragraph but does not

give a reason for limiting the Court’s exception to the

particular illustration that the Court gave. The panel

says only: “we are convinced that a clear accrual rule is

superior to a case-by-case approach.” It does not explain the

source of its conviction.

Its accrual rule is not “clear,” as I’ll point out; it is also

inconsistent with the principles of accrual. A suit cannot be

filed—the claim on which it is based cannot have accrued—at a time when, because a condition precedent

to suit has not been satisfied, the suit must be dismissed.

The panel holds that the suit must be filed within the

limitations period for section 1983 suits (usually two years)

from the date of the arrest, search, or, as in this case,

confession, even if at the end of the two years the plaintiff’s conviction has not been vacated and even if the only

evidence of his guilt presented at his criminal trial was the

challenged evidence or confession. This is so, the panel

holds, even though, to quote Heck, a judgment in the

plaintiff’s favor in the civil suit “would necessarily imply

the invalidity of his conviction” because it would wipe

out all of the evidence against him.

And if the plaintiff waits to sue until his conviction is

vacated, he will not have the full statutory period within

which to sue because he will be able to avoid dismissal only

by appealing to the doctrine of equitable tolling. (That’s

assuming equitable tolling is available in Heck cases, a

question the panel leaves open.) Equitable tolling permits

a plaintiff to delay suing beyond the statutory limitations

period if he is unable despite all due diligence to sue within

the period; but as soon as he is able to sue he must. He is

denied the benefit of the full statutory period. Unterreiner

v. Volkswagen of America, Inc., 8 F.3d 1206, 1213 (7th Cir.
18 No. 04-3949

1993); Cada v. Baxter Healthcare Corp., 920 F.2d 446, 452-

53 (7th Cir. 1990).

So the panel’s decision puts the squeeze on these plaintiffs, contrary to normal principles of accrual, which do not

force you—in fact do not allow you—to sue before you have

a claim. If you have been convicted and success on your civil

rights claim would undermine your conviction, you have no

civil rights claim unless and until you get the conviction set

aside. If the search turned up no evidence, or the confession

was excluded at the criminal trial, or the other evidence of

guilt was overwhelming, the claim does not challenge the

conviction and so it accrues at the time of the search. But

that is not every case.

The proper response is to adopt a presumption against the

unlikely result. (The panel does not discuss that alternative.) The presumption would be that even if the plaintiff’s

Fourth or Fifth Amendment defense had prevailed in the

criminal proceeding against him, he still would have been

convicted, either because the violation had not produced

evidence used against him in that proceeding or because,

though it had, there was plenty of other evidence to convict

him. The presumption would be rebutted if, for example, the

only evidence of his guilt was evidence seized in a search

that he challenges in his section 1983 suit. This is not a

hypothetical case; it is our twin Okoro cases, Okoro v.

Bohman, 164 F.3d 1059, 1061 (7th Cir. 1999), and Okoro v.

Callaghan, 324 F.3d 488 (7th Cir. 2003). The plaintiff, who

had been convicted of a drug offense on the basis of heroin

found during a search of his home, brought a federal civil

rights suit in which he claimed that he had offered to sell

the police jewels (which he claimed they stole from him in

response to his offer), not drugs. His conviction was never

reversed or otherwise nullified. We held the suit barred by

Heck because if he was believed he should not have been

convicted, since the heroin was essential to the conviction;

and so his Fourth Amendment suit for the allegedly stolen
No. 04-3949 19

jewelry was barred. Hudson v. Hughes, 98 F.3d 868, 872

(5th Cir. 1996), is a similar case with the same result.

Another clear case is Gauger itself. His conviction, we

pointed out, “rested crucially on the statements that he

made to the police when he was questioned after being

arrested. Earlier we said that he might well have been

prosecuted even if his version of the interrogation had been

accepted, because his version was incriminating though not

as much so as the prosecutors’ version. With no statement

at all in evidence, however, he could not have been convicted of guilt of his parents’ murder beyond a reasonable

doubt; the other evidence—the lack of forced entry or signs

of struggle, for example—was probative merely as corroboration of his statements construed as a confession or at

least as damaging admissions. So when he showed that the

statements were the product of a false arrest and hence

were inadmissible at his criminal trial, he successfully

impugned the validity of his conviction, as the state implicitly conceded when it dropped the charges against him

following the reversal of his conviction.” 349 F.3d at 361-62.

There will be tough borderline cases, but the tough cases

are not resolved by the decision today. They will simply

be fought out as equitable-tolling cases rather than accrual cases—if equitable tolling is available, a question on

which the panel, as I noted, reserves judgment: so much for

the panel’s having adopted a “clear rule.” If equitable tolling

is unavailable, then Fourth and Fifth Amendment claimants will automatically file within the statutory period

dated from the search—and then plead with the district

court to disobey Heck and not dismiss the suit, even if it is

not yet ripe because the conviction has not been set aside

and its validity depends on the validity of the search. As the

Sixth Circuit sensibly observed in Shamaeizadeh v.

Cunigan, 182 F.3d 391, 399 (6th Cir. 1999), “just as a

convicted prisoner must first seek relief through habeas
20 No. 04-3949

corpus before his § 1983 action can accrue, so too should the

defendant in a criminal proceeding focus on his primary

mode of relief—mounting a viable defense to the charges

against him—before turning to a civil claim under § 1983.”

The panel does not discuss that observation.

The panel denies that it is creating an intercircuit

conflict. It says that there is already a conflict and it is just

taking sides. Citing five cases, the panel states flatfootedly:

“The First, Third, Eighth, Tenth, and Eleventh Circuits

have held that false arrest claims accrue at the time of the

arrest . . . . By aligning ourselves with one side of this

debate, we do not break any new ground.” That is incorrect.

None of those cases hold that such claims always accrue at

the time of arrest. All they hold is that normally a Fourth

Amendment claim accrues them. Not one of them even says

(as distinct from holds) that it always does, and two of the

five explicitly allow for later accrual in exceptional cases.

The five cases are Nieves v. Sweeney, 241 F.3d 46, 52-53

(1st Cir. 2001); Beck v. City of Muskogee Police Dept., 195

F.3d 553, 558 (10th Cir. 1999); Montgomery v. De Simone,

159 F.3d 120, 126 (3d Cir. 1998); Simmons v. O’Brien, 77

F.3d 1093, 1097 (8th Cir. 1996), and Datz v. Kilgore, 51 F.3d

252, 253 n. 1 (11th Cir. 1995) (per curiam). Nieves acknowledges that there may be cases “in which a section 1983

claim based on a warrantless arrest will not accrue at the

time of the arrest.” 241 F.3d at 52 n. 4. Even the passage

that the panel quotes from Nieves acknowledges that a

section 1983 claim does not always accrue at the time of

arrest. Id. Beck also acknowledges such a possibility. 195

F.3d at 558-59. In Montgomery, the plaintiff’s claims, which

were for false arrest and false imprisonment, were unrelated to the outcome of the criminal prosecution against her.

Her “claim for false arrest . . . covers damages only for the

time of detention until the issuance of process or arraignment, and not more. In addition, Montgomery’s section 1983

false imprisonment claim relates only to her arrest and the
No. 04-3949 21

few hours she was detained immediately following her

arrest. Montgomery therefore reasonably knew of the

injuries that form the basis of these 1983 claims on the

night of her arrest.” 159 F.3d at 126 (citations omitted).

In Datz, a search case, the court held that the plaintiff did

not have to wait until the outcome of his criminal case to

bring his civil case because it was uncertain whether

a ruling in the civil case that Datz’s search had been illegal

would be inconsistent with his criminal conviction, for “even

if the pertinent search did violate the Federal Constitution,

Datz’ conviction might still be valid considering such

doctrines as inevitable discovery, independent source, and

harmless error.” 51 F.3d at 253 n. 1. Since Datz was

convicted of being a felon in possession of a firearm, and the

firearm was found in the search, it might seem that his

conviction could not coexist with invalidating the search.

But as the state court that upheld his conviction noted,

“ammunition for the weapon also was found in two locations

in appellant’s house. The police evidence custodian testified

appellant contacted him numerous times, by phone and in

person, seeking return of ‘his AR-15 rifle.’ ” Datz v. State,

436 S.E.2d 506, 509 (Ga. App. 1993). If there is untainted

evidence here, the panel’s result might well be correct, but

there is no discussion of the other evidence in its opinion. In

Simmons the only issue discussed is whether admission of

a coerced confession can be a harmless error; as far as

appears, no issue was made of whether the admission of the

confession had been harmless. 77 F.3d at 1094-95. The

panel does not discuss Montgomery, Datz, or Simmons; its

characterization of them (e.g., “finding § 1983 coerced

confession claim not barred by Heck”) is consistent with the

principle that the claim usually accrues later.

The cases that the panel acknowledges are in conflict with

its accrual rule are, besides Gauger, Harvey v. Waldron, 210

F.3d 1008, 1015 (9th Cir. 2000); Shamaeizadeh v. Cunigan,
22 No. 04-3949

supra, 182 F.3d at 399; Covington v. City of New York, 171

F.3d 117, 124 (2d Cir. 1999); Cabrera v. City of Huntington

Park, 159 F.3d 374, 380 (9th Cir. 1998); Brooks v. City of

Winston-Salem, 85 F.3d 178, 183 (4th Cir. 1996), and

Mackey v. Dickson, 47 F.3d 744, 746 (5th Cir. 1995). The list

is incomplete. Mysteriously omitted, without comment, are

Uboh v. Reno, 141 F.3d 1000, 1006-08 (11th Cir. 1998), and

Woods v. Candela, 47 F.3d 545, 546 (2d Cir. 1995) (per

curiam). Nieves, at least, must be added to the list along

with Calero-Colon v. Betancourt-Lebron, 68 F.3d 1, 4 (1st

Cir. 1995), cited in Nieves, as well as our decision in Booker

v. Ward, 94 F.3d 1054, 1056 (7th Cir. 1996), where we said,

examining the proceedings in the Illinois courts, “that

success on Booker’s unlawful arrest claim would not

necessarily undermine the validity of his conviction.” That’s

the test, all right. And note that Beck, one of the cases the

panel cites for its rule, expressly declined to reject

Covington. 195 F.3d at 559 n. 4.

The panel may have been misled by the reference in

Harvey v. Waldron, supra, 210 F.3d at 1015, to “a split in

the circuits.” The court in Harvey mischaracterizes the

approach of courts (including itself!) that reject the approach taken by the panel today. It describes them as

holding that a Fourth or Fifth Amendment claim never

accrues until and unless the conviction is vacated. Those

courts hold only that such a claim sometimes doesn’t accrue

until then, for example if there is no other evidence to

support the conviction besides evidence claimed to

have been obtained illegally. So in Harvey the court went on

to satisfy itself that the evidence alleged to have been

illegally seized was essential to Harvey’s conviction. Id.

at 1015-16.

The panel is right that there are two groups of cases. But

they are consistent. One holds that a Fourth or Fifth

Amendment claim accrues at the time of arrest, assuming

the conviction does not depend on the evidence alleged to
No. 04-3949 23

have been illegally seized. The other holds that the

claim does not accrue then if the conviction does depend

on that evidence.

I count 12 cases to 0 against the panel’s approach, with

the other three cases (Montgomery, Simmons, and Datz)

noncommittal but consistent with the 12. So one-sided a

score should give us pause. If there is a compelling practical

reason for flouting conventional statute of limitations

principles, forging a lonely path, and creating more work for

the Supreme Court, which now faces an intercircuit conflict

on a recurrent issue, the panel has not explained what it

might be.
24 No. 04-3949

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—3-8-06