In the

United States Court of Appeals

For the Seventh Circuit

No. 07-1928

LORRI BIELANSKI,

Plaintiff-Appellant,

v.

COUNTY OF KANE, Illinois,

KANE COUNTY CHILD ADVOCACY

CENTER, KANE COUNTY CHILD

ADVOCACY ADVISORY BOARD, et al.,

Defendants-Appellees.

 

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 05 C 7291—James B. Zagel, Judge.

 

ARGUED APRIL 4, 2008—DECIDED DECEMBER 18, 2008

 

Before POSNER, KANNE and ROVNER, Circuit Judges.

ROVNER, Circuit Judge. Lorri Bielanski, at the age of

fifteen, was falsely accused of sexually abusing a six-yearold neighbor. Eventually acquitted of all charges, she

sued a number of public officials and entities for violating her constitutional rights during the investigation
2 No. 07-1928

and prosecution of the alleged crime. The district court

dismissed her complaint in its entirety. We affirm.

I.

On review of this dismissal under Federal Rule of

Civil Procedure 12(b)(6), we accept as true all well-pleaded

facts, and, drawing all inferences in favor of Bielanski,

we review de novo whether the complaint states a claim

for which relief can be granted. Chicago Dist. Council of

Carpenters Welfare Fund v. Caremark, Inc., 474 F.3d 463, 471

(7th Cir. 2007); Baker v. Kingsley, 387 F.3d 649, 660 (7th

Cir. 2004); Marshall-Mosby v. Corporate Receivables, Inc., 205

F.3d 323, 326 (7th Cir. 2000). Our recitation of the facts

comes, therefore, from Bielanski’s Second Amended

Complaint. We begin by identifying the defendants. The

Kane County Child Advocacy Center (“Center”) and the

Kane County Child Advocacy Advisory Board (“Board”)

are both legislatively created entities. See 55 ILCS 80/3,

80/4. The Center was created to coordinate the investigation, prosecution, and treatment referral of child sexual

abuse. The Center is staffed by prosecutors, police investigators, investigators from the Illinois Department of

Children and Family Services (“DCFS”), and case managers. The Board is composed of various government

officials from Kane County, including representatives

of the mental health department, the sheriff’s office, the

states attorney’s office, and DCFS. The Board is

responsible for drafting policies and procedures for

investigating and prosecuting persons accused of child

sexual abuse. In addition to suing the Center and the

Board, Bielanski also sued the County of Kane, and two
No. 07-1928 3

persons, both individually and in their official capacities.

Kathryn Byrne was a DCFS child protection investigator

assigned to the Center, and David Berg was a police

officer assigned to both the County of Kane and the

Center. Byrne and Berg were both trained at the Child

Advocacy National Training Program (“CANTP”) in

techniques for interviewing the child victims of sexual

abuse.

On August 17, 2001, Byrne and Berg interviewed a sixyear-old boy named “Brent” and his parents about an

allegation that he had been sexually abused. Brent told

Byrne and Berg that someone named Lorri had

sexually abused him. The spelling of Lorri’s name was

provided by the adults involved in the case, interpreting

the child’s phonetic expression of the name. The interview lasted less than an hour and failed to conform to

the forensic protocol taught at CANTP. The two investigators failed to video- or audiotape the interview. They

failed to assess Brent’s competency to testify, and they

neglected to evaluate the accuracy of his memory. They

did not assess whether he had fabricated the allegations

or had been coached. They did not conduct a developmental assessment of Brent, did not investigate whether

he had been previously interviewed (and if so, how many

times), did not pursue any other possible explanations

for the allegations, and did not speak to any other significant individuals in Brent’s life. They did not evaluate

the extent of his diagnosis of Attention Deficit Hyperactivity Disorder (“ADHD”) or how that diagnosis

might affect his testimony, and they did not explore his

motives. They interviewed the parents prior to interviewing the child, contrary to accepted forensic practice.
4 No. 07-1928

They did not employ any accepted procedure to

identify the perpetrator of the alleged sexual abuse, such

as photographs or drawings. They did not ask Brent to

describe the physical features of the person who

assaulted him.

Between August 17 and November 16, 2001, Byrne and

Berg discovered that, prior to the interview, Brent was

taking medication for ADHD and had been assigned to

a special education class. They learned that he was a

difficult child for his parents to control and discipline. In

the summer of 2001, Brent had attended a day camp where

he removed his clothing and attempted to remove the

clothing of other children. In July of that same summer,

a relative had complained to Brent’s parents that Brent

had attempted to force his cousins to undress in the back

yard of Brent’s home. In the weeks before the August 17

interview, Brent’s parents angrily confronted him about

the day camp and back yard incidents, and punished

him and questioned him extensively about the incidents.

During their questioning, Brent’s parents suggested to

him that perhaps someone had sexually abused him.

Although Byrne and Berg knew all of this information, they

made none of it available to Bielanski even though it was

material to the validity and reliability of Brent’s charge

against Lorri at the August 17 interview.

Only six days after the interview, on August 23, 2001,

Bielanski received notification from DCFS that credible

evidence existed that she had committed acts of sexual

penetration and sexual molestation upon Brent. DCFS

labeled her the “indicated perpetrator.” On November 16,

2001, the Kane County State’s Attorney filed a Petition
No. 07-1928 5

Bielanski’s parents are not named as plaintiffs and therefore 1

the amounts they expended defending their daughter may not

be recovered in this suit.

for Adjudication of Wardship (“Petition”), alleging that

Bielanski committed the Class X felony of aggravated

criminal sexual assault and the Class 2 felony of aggravated criminal sexual abuse by committing an act of

fellatio upon Brent and by placing her sexual organ on

the sexual organ of Brent for the purpose of sexual gratification or arousal of the victim or the accused. As a result

of the Petition, Bielanski was compelled to attend numerous court hearings, ordered to submit to an interview by

a probation officer, and placed on pretrial restrictions

which limited her freedom.

The matter came to trial in early 2003. During the prosecution’s case-in-chief, Brent could not identify Bielanski

in court, even after the judge directed Brent to look at

Bielanski and asked him if he knew who she was. The

court granted a defense motion for a directed finding of

“not guilty.” Bielanski then asked DCFS to expunge the

charges against her from the agency’s records. After a

hearing before an administrative law judge, the director

of DCFS ordered that the record be expunged. Bielanski

maintained her innocence throughout the proceedings

and her parents expended considerable resources retaining counsel and hiring investigators and a forensic

expert to defend her.1

Bielanski filed a three-count complaint under 42 U.S.C.

§ 1983 (hereafter “Section 1983"), against the Center, the
6 No. 07-1928

Board, the County of Kane, Byrne, and Berg. Count I

alleged that the defendants violated Bielanski’s rights

under the Fourth Amendment by compelling her to

attend numerous court hearings and restricting her

freedom when there was no probable cause to charge

her with two felonies. Count I sought damages against

all of the defendants. Count II asserted that Byrne and

Berg (acting individually and in their official capacities)

violated Bielanski’s right to a fair trial and due process

when they withheld exculpatory evidence from DCFS,

the court, the prosecutors, and defense counsel. According

to the complaint, this withholding of information caused

the criminal prosecution of Bielanski, prolonged the

proceedings, and deprived her of a fair trial. Count II

sought damages against Byrne and Berg individually

and in their official capacities. Count III maintained that,

because of their inadequate policies, customs and practices, the County, the Center, and the Board enabled Byrne

and Berg to violate Bielanski’s rights. The complaint

faulted the County, the Board, and the Center for failing

to instruct, supervise, control, and discipline Byrne and

Berg, and sought damages against all three of the institutional defendants.

The district court granted the defendants’ motion to

dismiss under Federal Rule of Civil Procedure 12(b)(6).

In addition to the facts alleged in the complaint, the

district court assumed that the only person in Brent’s

world named “Lorri” was his neighbor, Lorri Bielanski.

The court noted that much of the complaint chastised

the agencies for not adopting a particular protocol for

investigating child abuse cases. The court found that the
No. 07-1928 7

Constitution does not require the agencies to adopt some

particular protocol, and that the violation of a local policy

is not enough to make out a constitutional claim. Rather,

those violations might be compensable under state law.

The court also remarked that, to the extent Bielanski

sought damages for the amounts expended by her parents

in her defense, there could be no recovery because her

parents were not parties to the suit. What remained,

according to the district court, was a claim for an illegal

seizure without probable cause, a claim under Brady for

failing to disclose exculpatory information, and a Monell

claim dependent upon a finding that any constitutional

violations by Byrne and Berg were caused by a failure

of the agencies to properly train or supervise these employees. See Brady v. Maryland, 373 U.S. 83 (1963); Monell

v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658

(1978). The court concluded that a summons does not

amount to an arrest, and that even if it did, Byrne and

Berg would be entitled to qualified immunity on the

illegal seizure claim. The court dismissed the Brady claim

because it was “extinguished” by Bielanski’s acquittal. That

is, in order to make out a Brady claim, there must be a

reasonable probability that the withheld evidence

would have affected the outcome of the proceedings if

Bielanski had known it before trial. Because Bielanski

was acquitted, the revelation of the withheld information

would not have changed the outcome. The court also

found that, in most acquittals, a plaintiff will be unable to

show damages unless the information would have destroyed the prosecution’s case. The information withheld

here, the court explained, would not have destroyed the
8 No. 07-1928

We agree with Bielanski that the district court inappro2

priately construed the facts in favor of the defendants when it

assumed that Bielanski was the only person named “Lorri” in

Brent’s world. On a motion to dismiss for failure to state a

claim, we must construe the well-pleaded facts in favor of the

plaintiff. See Caremark, 474 F.3d at 471. Bielanski alleged that the

defendants failed to pursue alternative hypotheses and failed

to gather information regarding significant individuals in

Brent’s life. The court should have construed this to mean

that the defendants failed to investigate whether there was

another person named “Lorri” (including alternate spellings

of the child’s phonetic representation of that name) in Brent’s

life. This error, however, does not affect the outcome of the

case, and so we will not address it further.

prosecution’s case. The court also posited that the defendants would have been entitled to qualified immunity

on the Brady claim. Because the claims against the individual defendants could not survive, the court also dismissed the Monell claim. Bielanski appeals.

II.

On appeal, Bielanski contends that the district court

erred when it construed the facts in favor of the

defendants and inferred that there was only one person

named “Lorri” in Brent’s world. She also argues that, 2

under the “objectively reasonable” standard of the Fourth

Amendment, she was seized without probable cause.

Finally, she maintains that her acquittal did not render

moot her claim that she was denied her due process

right to a fair trial when the defendants withheld evid-
No. 07-1928 9

ence that was exculpatory and could have been used

for impeachment purposes. The court dismissed

Bielanski’s complaint under Rule 12(b)(6) for failure to

state a claim, and our review is therefore de novo. Minch v.

City of Chicago, 486 F.3d 294, 300 (7th Cir. 2007).

A.

We begin with Bielanski’s claim under Section 1983 that

she was improperly seized without probable cause, in

violation of the Fourth Amendment. In her complaint,

she explains:

Plaintiff was compelled by process to attend numerous court hearings, ordered to be interviewed by a

probation officer, and was placed on pretrial restrictions which limited her freedom.

Second Amended Complaint (Complaint”), at ¶ 18(C). She

did not describe in the Complaint the nature of the

pretrial restrictions. In the district court, in response to the

defendants’ motion to dismiss, she explained that the

“seizure” was the initiation of the prosecution, effected by

a summons issued by the prosecutor, without probable

cause. She did not name any other pre-trial restrictions

in response to the motion to dismiss. On appeal, she

adds that the pretrial restrictions consisted of an order not

to leave Illinois without the permission of the court. She

also explains on appeal that the interview with the probation officer was part of the seizure. Although she did not

argue these latter two points in the district court, the

defendants have not claimed waiver and have answered
10 No. 07-1928

those additional points in their briefs and at oral argument.

On appeal, Bielanski concedes she was not arrested in

the traditional sense of the word but instead was compelled by a summons to appear in court. She also asserts

that, under the statute creating the Board and the Center,

the investigative functions of the police department were

merged with the prosecutorial functions of the state’s

attorney’s office, which made the charging decision.

Because of this merging of functions, she argues that it

is not fatal to her claim that the prosecutor who caused

the summons to be issued is not named as a defendant

here.

In order to make out a claim under Section 1983 for an

unreasonable seizure in violation of the Fourth Amendment, a plaintiff must allege, of course, that the defendants’ conduct constituted a seizure, and that the seizure

was unreasonable. Belcher v. Norton, 497 F.3d 742, 747 (7th

Cir. 2007). We need not consider whether the seizure here

was reasonable because our analysis begins and ends with

the first component of this formulation: Bielanski was not

seized as that term is understood in Fourth Amendment

analysis. A seizure of a person is generally defined in terms

of an intentional limitation of a person’s freedom of

movement. See County of Sacramento v. Lewis, 523 U.S. 833,

843-44 (1998) (a Fourth Amendment seizure occurs when

there is governmental termination of freedom of movement

by means intentionally applied); California v. Hodari D., 499

U.S. 621, 625-26 (1991) (a seizure of the person may be

achieved by the mere grasping or application of physical

force with lawful authority, whether or not it succeeded in

subduing the person arrested; or, in the absence of
No. 07-1928 11

physical force, by submission to a show of authority);

Belcher, 497 F.3d at 748 (a person is seized for Fourth

Amendment purposes when, from all of the circumstances

surrounding the incident, a reasonable person in the

situation would believe he or she was not free to leave;

to demonstrate seizure, individuals must show that they

were touched by the police or that they yielded to a

show of authority, and the governmental termination of

freedom of movement must be intentional).

Bielanski argues that, under Albright v. Oliver, 510 U.S.

266 (1994), a claim for arrest without probable cause

must be analyzed under Fourth Amendment jurisprudence. We have no quarrel with that general proposition,

but Bielanski concedes she was not arrested as that term

is commonly understood. Rather, she contends that,

because of the unique way the Center operates (by combining police and prosecutorial functions into one organization), the conduct of the Center in charging her and

causing a summons to be issued violated her right to be

free of arrest without probable cause. She explains that

the Board and the Center blurred the arrest role and the

prosecution role to such a degree that, for Fourth Amendment purposes, arrest and prosecution are one and

the same in her case. All of this begs the question of

whether she was “seized” for Fourth Amendment purposes, that is, whether there was an intentional governmental termination of her freedom of movement.

Bielanski relies on Justice Ginsburg’s concurrence in

Albright for the proposition that a person who is

obligated to appear for trial is “seized” for trial “when the
12 No. 07-1928

state employs the less strong-arm means of a summons

in lieu of arrest to secure his presence in court.” Albright,

510 U.S. at 279. Justice Ginsburg raised this issue in

the context of a defendant who had been arrested and

then released pre-trial, explaining that such a person “is

scarcely at liberty; he remains apprehended, arrested in

his movements, indeed ‘seized’ for trial, so long as he is

bound to appear in court and answer the state’s charges.”

510 U.S. at 279. Justice Ginsburg urged the Court to adopt

this concept of a continuing seizure to hold a police

officer liable for the harm suffered by the defendant not

only when he was arrested without probable cause, but

when he was hailed into court because the officer then

gave misleading testimony at the preliminary hearing. That

testimony, Justice Ginsburg remarked, maintained and

reinforced the unlawful hailing of the defendant into

court, in her view perpetuating a Fourth Amendment

violation past the initial seizure. Id.

No other Supreme Court justice has adopted Justice

Ginsburg’s analysis, and we have repeatedly rejected the

concept of a continuing seizure in the Fourth Amendment

context. See Wallace v. City of Chicago, 440 F.3d 421, 429 (7th

Cir. 2006) (declining to recognize a stand-alone false

confession claim based on a continuing Fourth Amendment violation theory); Wiley v. City of Chicago, 361 F.3d

994, 998 (7th Cir. 2004) (rejecting a claim for wrongful

prosecution under a Fourth Amendment continuing

seizure approach). We repeated in Wallace and Wiley

our well-settled rule that “the interest in not being prosecuted groundlessly is not an interest that the Fourth

Amendment protects.” Wallace, 440 F.3d at 425; Wiley, 361
No. 07-1928 13

F.3d at 998 (both citing Gauger v. Hendle, 349 F.3d 354, 361

(7th Cir. 2003), overruled in part by Wallace v. City of Chicago,

440 F.3d 421 (7th Cir. 2006)). Yet a claim for prosecution

without probable cause is exactly the type of claim that

Bielanski presses. Typically, the scope of a Fourth Amendment claim is limited up to the point of arraignment,

at which point the prosecution is underway. Wallace, 440

F.3d at 425; Wiley, 361 F.3d at 998. If the prosecution is

then deemed malicious, it “is not a constitutional tort

unless the state provides no remedy for malicious prosecution.” Wiley, 361 F.3d at 998 (quoting Gauger, 349 F.3d at

359). As Bielanski’s counsel conceded at oral argument,

Illinois provides a remedy for malicious prosecution

and the plaintiff chose not to bring such a claim.

Bielanski urges us to find, nonetheless, that the summons

requiring her to appear in court, an interview with a

probation officer, and a court order requiring her to seek

the permission of the court before leaving the state

amounted to a seizure under the Fourth Amendment.

Before the Supreme Court decided Albright, we expressed doubt that a requirement to appear in court is a

sufficient deprivation of liberty to warrant the elevation

of malicious prosecution to a constitutional tort. Mahoney

v. Kesery, 976 F.2d 1054, 1060 (7th Cir. 1992). We noted

that a court appearance is “less dramatic, less traumatic,

than being arrested, or booked, the first usually involving

being searched and handcuffed, the second being searched,

fingerprinted, and photographed.” Mahoney, 976 F.2d

at 1060. But see McCullah v. Gadert, 344 F.3d 655, 661 (7th

Cir. 2003) (reserving the question of whether a person

was seized by a summons when he was taken into

custody when he complied with the summons).
14 No. 07-1928

Other circuits have addressed whether a summons,

alone or in combination with pre-trial restrictions, constitutes a seizure, and the answer varies, depending largely

on the severity of the restrictions on freedom of movement. The Tenth Circuit declined to recognize a Fourth

Amendment claim based on a groundless charging decision “absent a significant restriction on liberty.” Becker v.

Kroll, 494 F.3d 904, 915-16 (10th Cir. 2007). Becker was a

physician subjected to a baseless investigation and prosecution for Medicaid fraud. Her records were subpoenaed,

and she was threatened with criminal prosecution if she

failed to pay a requested settlement, even though an

independent review of her records demonstrated that

she had not engaged in any wrongdoing. When Becker

refused to settle, the state first filed a civil suit against

her and then pursued criminal charges. She was subjected

to a preliminary hearing and was bound over for trial, but

was never taken into custody. The civil and criminal cases

were dismissed but Becker was then subjected to an

administrative proceeding that resulted in a finding that

she had not engaged in fraud. Because Becker never was

required to post bond or appear in court, and alleged no

specific restrictions on her freedom of movement (such

as travel restrictions), the court found that she was not

seized for Fourth Amendment purposes. Becker, 494 F.3d

at 915-16. See also Kingsland v. City of Miami, 382 F.3d 1220,

1235-36 (11th Cir. 2004) (finding no seizure for Fourth

Amendment purposes when plaintiff was required to

post $1000 bond, appear at her arraignment, and travel

twice from New Jersey to Florida to defend herself in

court); Karam v. City of Burbank, 352 F.3d 1188, 1193-94 (9th
No. 07-1928 15

Cir. 2003) (required signing of “own recognizance” agreement which obligated woman falsely accused of a misdemeanor to obtain court’s permission before leaving state,

and which compelled her appearance in court amounted to

de minimis restrictions not constituting a Fourth Amendment seizure); Nieves v. McSweeney, 241 F.3d 46, 56 (1st

Cir. 2001) (declining to find a seizure based on compelled

presence at numerous pre-trial court appearances and at

trial, in the absence of a required bond or travel restrictions); Depiero v. City of Macedonia, 180 F.3d 770, 798 (6th

Cir. 1999) (finding no Fourth Amendment seizure where

government conduct consisted of an officer issuing a

citation that required a court appearance); Riley v. Dorton,

115 F.3d 1159, 1162 (4th Cir. 1997) (refusing to apply

Justice Ginsburg’s continuing seizure theory to a claim

of excessive force against pre-trial detainees, instead applying the Due Process Clause of the Fourteenth Amendment, and collecting cases that analyze at what point,

short of arrest, an individual may have suffered a deprivation of personal freedom sufficient to implicate the

Fourth Amendment).

Other courts have found a Fourth Amendment violation notwithstanding the absence of a physical seizure.

The Third Circuit, for example, instead considers the

severity of pre-trial restrictions as the determining factor.

DiBella v. Borough of Beachwood, 407 F.3d 599, 602 (3d Cir.

2005). The court held that “[p]retrial custody and some

onerous types of pretrial, non-custodial restrictions

constitute a Fourth Amendment seizure.” For example, in

DiBella, the court held that there was no seizure where

the plaintiffs had simply been issued summonses com-
16 No. 07-1928

pelling their appearance in court for trial. They were not

arrested, they did not post bail, they were free to travel,

and they were not required to report to pretrial services.

The restraint on their liberty during court proceedings

was not sufficient to raise a Fourth Amendment claim.

407 F.3d at 602-03. On the other hand, the court did find

a Fourth Amendment seizure where a man was falsely

charged with arson and mail fraud, and was subjected to

more significant pre-trial restrictions. See Gallo v. City of

Philadelphia, 161 F.3d 217 (3d Cir. 1998). After responding

to a notice, Gallo was arraigned and then released on a

$10,000 bond. He was not arrested, detained or handcuffed, but he was prohibited from traveling outside of

New Jersey and Pennsylvania, and was required to

contact pre-trial services on a weekly basis. Gallo, 161 F.3d

at 219. These restrictions were in place for eight months

before Gallo was acquitted of the charges. He was also

required to attend court hearings, including his trial. The

Third Circuit found that, although it was a close question, these pre-trial conditions amounted to a seizure.

Gallo, 161 F.3d at 222-23. Finding Justice Ginsburg’s

concurrence in Albright compelling, the court was persuaded that the obligation to appear in court, enforced

by the bond, and compounded by the travel restrictions

and other conditions, had the effect of making Gallo “halt.”

161 F.3d at 223.

The Fifth Circuit, like the Third, concluded that a summons, combined with certain onerous pre-trial restrictions, may constitute a seizure for Fourth Amendment

purposes. Evans v. Ball, 168 F.3d 856, 861 (5th Cir. 1999),

overruled on other grounds by Castellano v. Fragozo, 352 F.3d
No. 07-1928 17

939 (5th Cir. 2003). In response to a summons, Evans

appeared in court to answer charges he later alleged were

baseless. He was fingerprinted, photographed, and required to sign a personal recognizance bond. He was

required to report to pretrial services once a month, was

prohibited from traveling outside the state without the

permission of the court, and was required to provide

federal officers with financial and identifying information. 168 F.3d at 860-61. The court found that the summons, in combination with these pretrial restrictions,

diminished Evans’ liberty enough to render him seized

under the Fourth Amendment. 168 F.3d at 861. However,

because it was not clearly established that a summons

and pretrial restrictions constituted a Fourth Amendment

seizure, the court found the defendants were entitled

to qualified immunity. 168 F.3d at 862.

The Second Circuit has held that “while a state has the

undoubted authority, in connection with a criminal

proceeding, to restrict a properly accused citizen’s constitutional right to travel outside of the state as a condition

of his pretrial release, and may order him to make

periodic court appearances, such conditions are appropriately viewed as seizures within the meaning of the

Fourth Amendment.” Murphy v. Lynn, 118 F.3d 938, 946

(2d Cir. 1997). The Murphy court upheld a verdict in favor

of a plaintiff bringing a Fourth Amendment malicious

prosecution claim against two police officers who

signed spurious criminal complaints accusing the plaintiff

of both misdemeanor and felony offenses. 118 F.3d at 942.

To make out such a claim, the court required a plaintiff to

show (1) the commencement or continuation of a criminal
18 No. 07-1928

proceeding by a defendant against a plaintiff; (2) a termination of the proceeding favorable to the plaintiff; (3) the

absence of probable cause for the proceeding; (4) actual

malice on the part of the defendant; and (5) a post-arraignment deprivation of liberty guaranteed by the Constitution.

118 F.3d at 943. Noting the fundamental nature of a citizen’s right to travel from state to state, the court held that

a pre-trial restriction of that right has Fourth Amendment

implications. 118 F.3d at 945. The court also wrote approvingly of Justice Ginsburg’s concurrence in Albright,

finding that the eight trial court appearances required

of the plaintiff while the criminal charges were pending

also contributed to a finding of a post-arraignment deprivation of liberty under the Fourth Amendment. 118 F.3d

at 946.

Prior to the Supreme Court’s opinion in Albright, we

rejected the concept of continuing seizure in a case involving police misconduct post-arrest and pre-charge. Wilkins

v. May, 872 F.2d 190, 194 (7th Cir. 1989). Wilkins was

arrested on suspicion of bank robbery. He alleged that,

during his interrogation, while he was handcuffed and

defenseless, an FBI agent pointed a gun at his head,

inflicting severe mental distress on him and causing him

to confess. Wilkins sued the FBI agent and his partner

under Section 1983, for violating his constitutional rights

by extracting his confession at gunpoint. On appeal, the

issue before us was whether Wilkins had sufficiently

alleged a constitutional deprivation. At the time of the

police misconduct, Wilkins had already been seized for

Fourth Amendment purposes because he had been arrested. 872 F.2d at 192. A natural interpretation of the
No. 07-1928 19

word “seizure” might limit it to the initial act of seizing,

and the Fourth Amendment clearly applies to that initial

act. 872 F.2d at 192-93. We rejected the concept of a continuing seizure Fourth Amendment analysis for police

conduct during a post-arrest, pre-charge interrogation

because custodial interrogation “does not curtail a person’s

freedom of action; it presupposes that he has already

lost that freedom.” 872 F.2d at 194. Instead, we opined,

the due process clause applied, and it was “for the trier

of fact to decide whether a particular incident involving

interrogation at gunpoint is so terrifying in the circumstances as to constitute a deprivation of liberty within

the meaning of the due process clause.” 872 F.3d at 195.

We defined the relevant liberty interest as the freedom

from severe bodily or mental harm inflicted in the

course of an interrogation. 872 F.2d at 195.

We reaffirmed our rejection of the concept of a continuing seizure in Reed v. City of Chicago, 77 F.3d 1049, 1052

n.3 (7th Cir. 1996), and Lee v. City of Chicago, 330 F.3d 456,

463 n.3 (7th Cir. 2003). Neither of those cases, however, are

directly on point here because in each case there was a

clear initial seizure. Reed was arrested and confined for

twenty-three months prior to his acquittal for first degree

murder. He brought his Section 1983 action for unlawful

arrest, search, and seizure too late under the statute of

limitations. He was left with claims for malicious prosecution and unlawful confinement against the arresting

officers. We noted that, although the concept of continuing seizure was “intriguing,” we had already rejected

it in Wilkins. 77 F.3d at 1052 n.3. We affirmed the dismissal

of Reed’s claim because, at bottom, it was really a claim
20 No. 07-1928

that he was arrested and charged without probable

cause, a claim that he conceded was time-barred. Lee

alleged a Fourth Amendment claim for the seizure of his

car as evidence in a case. He conceded that the initial

impoundment of the car by the city was proper. The city

subsequently refused to return the car when there was

no longer a legitimate need to keep it unless Lee paid a

fee. Citing Reed and Wilkins, we noted that Fourth Amendment seizure claims are temporally restricted to the

initial deprivation. Lee, 330 F.3d at 465. Because Lee’s

complaint did not implicate the initial deprivation of his

property but rather the fairness of the process that existed

for subsequently recovering his property, we noted that

due process analysis was a better fit for Lee’s claim. 330

F.3d at 466.

The concept of continuing seizure is a poor fit for the

facts of Bielanski’s case, in any event, because to have a

continuing seizure, one must have a seizure in the first

place. In Wilkins, Reed, and Lee, there was an initial seizure

at a single point in time, and the plaintiffs sought to

recover for subsequent events. The application of the

continuing seizure theory to our case still leaves us with

the question of whether Bielanski was ever seized in the

first instance. Bielanski, as we noted above, alleges three

facts in support of her claim that she was seized for

Fourth Amendment purposes: (1) she was compelled by

process to attend numerous court hearings; (2) she was

required to obtain the permission of the court before

leaving the state; and (3) she was required to submit to

an interview with a probation officer.
No. 07-1928 21

The Supreme Court “adhere[s] to the view that a person

is ‘seized’ only when, by means of physical force or a show

of authority, his freedom of movement is restrained.”

United States v. Mendenhall, 446 U.S. 544, 553 (1980). No

court has held that a summons alone constitutes a

seizure, and we conclude that a summons alone does not

equal a seizure for Fourth Amendment purposes. To

hold otherwise would transform every traffic ticket and

jury summons into a potential Section 1983 claim. See

Mahoney, 976 F.2d at 1060. Although the travel restriction

and the interview with the probation officer might be

somewhat more onerous than the summons alone, we

conclude that they are insufficient restraints on freedom

of movement to constitute a seizure. The First Circuit

remarked in Nieves that “if the concept of a seizure is

regarded as elastic enough to encompass standard conditions of pretrial release, virtually every criminal defendant

will be deemed to be seized pending the resolution of

the charges against him.” 241 F. 3d at 55. The court opined

that garden-variety malicious prosecution cases were better

left to the state courts. Id. The conditions imposed on

Bielanski were not the “dramatic” or “traumatic” conditions we mentioned in Mahoney. 976 F.2d at 1060. No

doubt being falsely accused of molesting a child was

itself traumatic, and a state court malicious prosecution

claim would have addressed that injury, but a false accusation is not a seizure. For the travel restriction,

Bielanski does not claim that the court denied her any

request to travel outside the state, only that she was

required to request permission. Such a requirement is, at

most, a precursor to a possible seizure rather than a
22 No. 07-1928

seizure itself. The single required meeting with a probation officer is the type of standard condition of pretrial

release that is not onerous enough to constitute a seizure.

241 F.3d at 55. Most importantly, we have stated that

the Fourth Amendment “drops out of the picture following

a person’s initial appearance in court.” Hernandez v.

Sheahan, 455 F.3d 772, 777 (7th Cir. 2006). The travel

restriction and the meeting with the probation officer

were restrictions imposed by a judge once Bielanski

appeared in court, and so a Fourth Amendment claim

against these defendants cannot stand. In short, Bielanski

has failed to allege a seizure (continuing or otherwise)

by these defendants and thus has no claim under the

Fourth Amendment.

B.

We turn next to Bielanski’s claim that she was denied

the right to a fair trial when the defendants withheld

exculpatory and impeaching evidence in violation of

Brady v. Maryland, 373 U.S. 83 (1963). Bielanski alleged

that, between August 17, 2001 and November 16, 2001,

Berg and Byrne learned a number of facts that were

exculpatory but did not turn any of this information over

to DCFS, prosecutors, the juvenile court, and Bielanski’s

defense counsel. Specifically, Bielanski alleged that Berg

and Byrne knew that Brent was medicated for Attention

Deficit Hyperactivity Disorder (ADHD) and was assigned

to special education classes; that Brent’s parents had

difficulty controlling and disciplining him; that in the

summer of 2001, Brent had disrobed at summer camp
No. 07-1928 23

and attempted to disrobe other children; that in July 2001,

Brent’s parents angrily confronted him after learning

from relatives that Brent had attempted to disrobe his

cousins; and that following the disrobing incidents, Brent’s

parents punished him and questioned him in a manner

that suggested to him that someone had sexually abused

him. According to Bielanski, all of this information was

material to the validity and reliability of Brent’s statement that “Lorri” had sexually abused him. The district

court found that a Brady claim is extinguished by an

acquittal because the disclosure of the evidence would not

have changed the outcome of the trial. The court remarked

that the Brady analysis was difficult enough in the face

of a conviction, when the court then has to determine

whether the evidence would have changed the outcome.

In the case of an acquittal, a court has to determine

whether, assuming the defendant had been convicted

(which she had not), the exculpatory evidence would

have led to an acquittal. In most cases of acquittal, the

court stated, there will be no damages unless the withheld information would have destroyed the prosecution’s

case. The court held that the revelation of the additional

evidence would not have destroyed the prosecution’s

case. That is, this information would not have led to the

pre-trial dismissal of the charges against Bielanski.

“A Brady violation occurs when the government fails to

disclose evidence materially favorable to the accused.”

Youngblood v. West Virginia, 547 U.S. 867, 869 (2006). The

Brady duty extends to impeachment evidence as well as

exculpatory evidence. Youngblood, 547 U.S. at 870. And a

court may find that a Brady violation has occurred even
24 No. 07-1928

when the suppressed evidence is known only to police

investigators and not to the prosecutor. Id.; Kyles v. Whitley,

514 U.S. 419, 438 (1995). See also Carvajal v. Dominguez,

542 F.3d 561, 566-67 (7th Cir. 2008) (in order to make out a

Brady claim, a plaintiff must demonstrate that the

evidence at issue is favorable to the accused, either

because it is exculpatory or impeaching; that the evidence

was suppressed by the government, either willfully or

inadvertently; and that the evidence was material, that is,

that there is a reasonable probability that prejudice ensued); United States v. Warren, 454 F.3d 752, 759 (7th Cir.

2006) (same). On appeal, the only part of the Brady formulation at issue is whether the evidence in question was

material. “[F]avorable evidence is material, and constitutional error results from its suppression by the government, if there is a ‘reasonable probability’ that, had the

evidence been disclosed to the defense, the result of the

proceeding would have been different.” Kyles, 514 U.S. at

433-34 (citing United States v. Bagley, 473 U.S. 667, 682

(1985)). In discussing the difference between the “reasonable probability” standard and a preponderance

standard, the Court explained:

The question is not whether the defendant would more

likely than not have received a different verdict with

the evidence, but whether in its absence he received a

fair trial, understood as a trial resulting in a verdict

worthy of confidence.

Kyles, 514 U.S. at 434. A defendant may demonstrate a

Brady violation by “showing that the favorable evidence

could reasonably be taken to put the whole case in such
No. 07-1928 25

a different light as to undermine confidence in the verdict.”

Kyles, 514 U.S. at 435.

The Supreme Court has yet to address the situation

alleged here, where certain evidence was withheld by the

prosecution and yet the defendant was still acquitted.

The government argues that there can be no Brady violation in the face of an acquittal. Bielanski maintains that

an acquittal does not extinguish a Brady claim because a

defendant might be acquitted even after an unfair trial,

and the failure of the prosecution to reveal this evidence

in a timely fashion damaged her by unnecessarily prolonging the proceedings. The district court opined that revelation of the evidence in question would not have

shortened the proceedings, and we agree. Although the

evidence could have been used to impeach Brent’s credibility and offer an alternate explanation for his charge

against Bielanski, the withheld evidence was not of the

nature to cause a prosecutor to drop the charges entirely.

Several of our sister circuits to consider the question

have concluded that a Brady claim is extinguished when

a defendant is acquitted or charges are dropped. See

Morgan v. Gertz, 166 F.3d 1307, 1310 (10th Cir. 1999)

(“Regardless of any misconduct by government agents

before or during trial, a defendant who is acquitted

cannot be said to have been deprived of the right to a fair

trial.”); Flores v. Satz, 137 F.3d 1275, 1278 (11th Cir. 1998)

(finding no Brady violation in the face of an acquittal

because Brady protects a defendant from an unfair trial

and an acquitted defendant does not suffer the effects of

an unfair trial); McCune v. City of Grand Rapids, 842 F.2d
26 No. 07-1928

903, 907 (6th Cir. 1988) (where criminal charges are

dropped before trial, and thus the underlying criminal

proceeding terminated in an appellant’s favor, there is

no injury caused by the act of suppressing exculpatory

evidence). But see Haupt v. Dillard, 17 F.3d 285, 287-88 (9th

Cir. 1994) (where trial judge was biased, defendant’s

acquittal speaks only to the amount of damages due and

is irrelevant to whether he has a cause of action for a

violation of his due process right to a fair trial).

We very recently expressed doubt in Carvajal “that an

acquitted defendant can ever establish the requisite

prejudice for a Brady violation.” 542 F.3d at 570. We noted

that the Supreme Court measured Brady materiality by

whether the nondisclosure was so serious that the suppressed evidence would have produced a different

verdict. Carvajal, 542 F.3d at 570 (citing Strickler, 527 U.S. at

289-90). We took this to mean that, although a prosecutor

must decide whether evidence is Brady material prospectively, “a true constitutional violation is measured with

the outcome in mind.” 542 F.3d at 570. Nonetheless, we

analyzed the claim to determine whether, in part, “the

decision to go to trial would have been altered by the

desired disclosure.” 542 F.3d at 569. We concluded

there, as we do here, that the decision to go to trial would

not have been affected by the allegedly withheld evidence.

Brady requires that the government disclose material

evidence in time for the defendant to make effective use

of it at trial. See Warren, 454 F.3d at 761. Even late disclosure does not constitute a Brady violation unless the

defendant is unable to make effective use of the evidence.
No. 07-1928 27

Warren, 454 F.3d at 760. See also Moore v. Casperson, 345

F.3d 474, 493 (7th Cir. 2003) (nothing in Brady requires that

disclosures be made before trial because, as long as ultimate disclosure is made before it is too late for the defendant to make use of any benefits of the evidence, due

process is satisfied); United States v. Grintjes, 237 F.3d

876, 880 (7th Cir. 2001) (Brady demands only that the

disclosure not come so late as to prevent the defendant

from receiving a fair trial). Under these cases, Brady

evidence can be handed over on the eve of trial or even

during trial so long as the defendant is able to use it to

his or her advantage. That said, purposefully withholding

exculpatory or impeaching evidence until the last

moment would be a risky and ethically questionable

practice for government agents to undertake, and we

certainly do not condone that approach with our

opinion today. We hasten to add that there is no allegation here that the prosecution purposefully withheld the

subject evidence.

Earlier disclosure of this evidence would not have

resulted in dismissal of the charges prior to trial. For

the most part, the evidence is impeaching rather than

exculpatory and its use in cross-examination of the investigators and the accuser certainly would have created

credibility issues for the trier of fact to resolve. The evidence weakened parts of the prosecution’s case but was

not the type of evidence that would have precluded the

charges entirely. And Bielanski ultimately had a trial

which resulted in a verdict “worthy of confidence.” Kyles,

514 U.S. at 434. See also Bagley, 473 U.S. at 675 (the purpose of the Brady rule is “to ensure that a miscarriage of
28 No. 07-1928

justice does not occur”). Because Bielanski did not suffer

the harm that Brady aims to prevent, we therefore conclude there was no Brady violation here.

III.

In sum, Bielanski has failed to allege a Fourth Amendment claim because she was not seized when she was

summoned to trial before the juvenile court and subjected

to minimal pre-trial restrictions. And she has failed to

allege a Brady due process claim because the undisclosed

favorable evidence would not have resulted in earlier

dismissal of the charges and could not “reasonably be

taken to put the whole case in such a different light as to

undermine confidence in the verdict.” Kyles, 514 U.S. at

435. At bottom, Bielanski has alleged a claim for

malicious prosecution that is more appropriately brought

in state court. See Wiley, 361 F.3d at 998. Because her Monell

claim depended entirely on the validity of her first two

claims, we affirm the dismissal of the Monell claim as well.

AFFIRMED.

12-18-08