In the

United States Court of Appeals

For the Seventh Circuit

No. 99-1575

Cynthia Williams,

Plaintiff-Appellant,

v.

Lindsey Heavener, et al.,

Defendants-Appellees.

Appeal from the United States District Court 

for the Northern District of Illinois, Eastern

Division.

No. 97 C 0890--David H. Coar, Judge.

Argued November 10, 1999--Decided June 28,

2000

 Before POSNER, Chief Judge, and ROVNER,

and Diane P. Wood, Circuit Judges.

 Diane P. Wood, Circuit Judge. Officer

Cynthia Williams of the Joliet Police

Department was involved in a

confrontation with five of her department

colleagues. The incident quickly led to

her arrest. Back at the station, she was

told to fill out a conduct report and

then released. Four days later, however,

she was arrested again and charged with

obstructing a police officer. Acquitted

of the obstruction charge, she claims

that all of this was malicious and based

on false allegations by her colleagues.

Almost two years later, she sued them and

the City of Joliet, alleging violations

of her constitutional rights. The

district court granted the defendants’

motion for summary judgment and we

affirm.

 This litigation began with a relatively

routine traffic stop. On August 20, 1994,

as Williams was driving behind a car in

which her two brothers (Barney and

Eugene, Jr.) and nephew (Eugene III) were

riding, Joliet police officer James

Reilly and FBI Agent Michael Skeen pulled
over her brothers’ car. The details of

what happened next are somewhat sketchy,

but it appears that Williams herself

stopped to see what the problem was and

told Eugene Jr. and Eugene III not to

interfere with Officer Reilly’s

questioning of Barney. At this point,

another Joliet squad car (and four other

officers) arrived on the scene. According

to Williams, one of these officers put

Eugene Jr. in a choke hold. In order to

keep things from escalating further,

Williams tried to keep Eugene III from

interfering with the officers’ aggressive

treatment of her brothers. Officer Reilly

then ordered Williams herself arrested.

Eugene Jr. and Eugene III were also

arrested on the charge of obstructing a

peace officer. 

 Williams was taken back to the Joliet

Police Station and "unarrested" by Watch

Commander Lt. George Hernandez. Hernandez

told Williams to prepare an internal memo

detailing what had happened, and

Hernandez informed Williams that she

would be released without charge pending

an investigation by the Department’s

internal affairs unit. Pursuant to Joliet

Police Department General Order 13-2,

Hernandez then met with the other five

Joliet officers who were on the scene in

order to determine whether probable cause

existed for the arrest. Apparently

Hernandez thought not, since he decided

not to charge Williams. Instead, he told

the other five officers to prepare memos

similar to the one that Williams was to

write. Four of the five claimed that

Williams had pushed other officers during

the August 20 incident; Williams denied

this and maintained that she did not in

any way interfere with the arrests of her

brother and nephew. Based on the

officers’ memos, a warrant for Williams’

arrest was issued on August 24 (again on

the charge of obstructing a peace

officer). On February 9, 1995, Williams

was tried and acquitted in Will County

court. Almost exactly two years later, on

February 7, 1997, she filed this Section

1983 action, which alleges that both the

individual officers on the scene and the

Joliet Police Department as a whole

violated her constitutional rights.

 Williams’ sole theory against the

individual officers is that their false

accusations were part of a

maliciousprosecution that violated her
constitutional rights. Of course, it is

not enough for Williams to show that

malicious prosecution is a constitutional

tort. Because of the qualified immunity

enjoyed by officers performing official

functions, she must show that it was

clearly established at the time of the

defendants’ conduct that a prosecution

motivated by malice violated a person’s

Fourth Amendment rights. Crawford-El v.

Britton, 523 U.S. 574, 593 (1998);

Harrell v. Cook, 169 F.3d 428, 431 (7th

Cir. 1999).

 In Mahoney v. Kesery, 976 F.2d 1054,

1062 (7th Cir. 1992), we noted that

"malicious prosecution can be . . . a

step on the road to a constitutional

violation for which redress is available

under section 1983," but we added that

"the standing of malicious prosecution as

a constitutional tort is weak." Id. at

1061. Moreover, the Supreme Court held in

Albright v. Oliver, 510 U.S. 266 (1994),

that malicious prosecution does not

constitute a direct violation of the Due

Process Clause of the Fourteenth

Amendment. With the due process avenue

foreclosed, Williams instead looks to the

Fourth Amendment’s prohibition on

unreasonable searches and seizures. She

relies largely on Smart v. Board of

Trustees of the University of Illinois,

34 F.3d 432 (7th Cir. 1994), which said

(in light of Albright) that where

"malicious prosecution or abuse of

process is committed by state actors and

results in the arrest or other seizure of

the defendant, there is an infringement

of liberty, but we now know that the

defendant’s only constitutional remedy is

under the Fourth Amendment." Smart, 34

F.3d at 434.

 The defendants argue that since Smart

was decided on August 29, 1994--a mere

five days after Williams’ arrest-- the

status of malicious prosecution as a

constitutional tort actionable under

Section 1983 was not clearly established

when they acted and that they are

therefore entitled to qualified immunity.

Alternatively, they argue that even Smart

itself merely noted that the Fourteenth

Amendment is not a valid basis for a

Section 1983 suit for malicious

prosecution, rather than clearly

establishing that such conduct is

actionable under the Fourth Amendment.
 We need not resolve what, if anything,

Smart clearly established since the

parties’ emphasis on the events before

and on August 24, 1994, misses the point.

August 24 was the day when Williams was

arrested for the second time. To the

extent that she complains about the

officers’ conduct prior to and during the

time of her arrest, her complaint amounts

to an allegation of unlawful arrest, not

malicious prosecution. But since the

statute of limitations in this Section

1983 suit is the two-year Illinois

limitations period for personal injury

actions, Northen v. City of Chicago, 126

F.3d 1024, 1026 (7th Cir. 1997), her

unlawful arrest claim would be timebarred because it was brought after

August 24, 1996. We have said many times

that a Section 1983 plaintiff may not

avoid the limitations period imposed on a

false arrest claim by recharacterizing it

as a malicious prosecution action. Sneed

v. Rybicki, 146 F.3d 478, 481 (7th Cir.

1998); Reed v. City of Chicago, 77 F.3d

1049, 1053 (7th Cir. 1996).

 As far as the officers go, that leaves

only their allegedly false trial

testimony as a basis for a malicious

prosecution claim. Several of our cases

have suggested that misconduct following

arrest can give rise to a malicious

prosecution claim against police officers

that is distinct from an unlawful arrest

theory. See, e.g., Sneed, 146 F.3d at

481; Reed, 77 F.3d at 1053-54. See also

Washington v. Summerville, 127 F.3d 552,

560-61 (7th Cir. 1997) (Rovner, J.,

concurring in part and dissenting in

part). This, however, is not such a case.

Williams’ own brief focuses exclusively

on the unlawful conduct of her police

department colleagues from August 20

through her August 24 arrest. It does not

discuss either the officers’ conduct at

the trial or the state of the law in

February 1995. Williams has thus waived

any arguments relating to this alternate

theory. International Union of Operating

Engineers v. Rabine, 161 F.3d 427, 432

(7th Cir. 1998); Ricci v. Village of

Arlington Heights, 116 F.3d 288, 292 (7th

Cir. 1997).

 Williams also seeks to hold the City of

Joliet liable for the allegedly malicious

prosecution instigated by its police

department. Here, too, the hurdle is

high, since under Monell v. Department of
Social Services of the City of New York,

436 U.S. 658 (1978), municipalities are

not vicariously liable for their

employees’ constitutional torts. Instead,

Williams must show that her arrest and

prosecution resulted from a municipal

policy of violating citizens’

constitutional rights. Id. Her first

theory is that Joliet had a policy of not

advising citizens of their rights as

required by Miranda v. Arizona, 384 U.S.

436 (1966). It is unclear precisely how,

if at all, any Miranda violation is

connected to a malicious prosecution in

which no post-arrest statement is

introduced. We need not pursue that

point, however, since Joliet Police

Department General Order 89-10 requires

that subjects of internal investigations

be advised of their rights. Other than

her own case, Williams presents no

evidence of a practice of deviating from

General Order 89-10. Ordinarily, one

incident is not sufficient to establish a

custom that can give rise to Monell

liability. Calusinski v. Kruger, 24 F.3d

931, 936 (7th Cir. 1994). Williams makes

no argument that hers is an extraordinary

case that should prompt us to depart from

this rule, so the district court was

correct to dismiss this claim.

 Williams’ other argument against Joliet

is that the city should be liable for its

failure to train its officers in the

conduct of internal investigations. City

of Canton v. Harris, 489 U.S. 378 (1989),

suggests that a failure to train can

serve as a basis for municipal liability

under Section 1983, but only if that

failure is tantamount to "deliberate

indifference" toward the constitutional

rights of citizens. Harris, 489 U.S. at

388. There is nothing whatsoever in the

record that suggests that the Joliet

Police Department was aware of a

substantial risk that its officers would

undermine one another’s constitutional

rights during the course of internal

investigations, so this claim, too, was

properly dismissed.

 Because Williams’ malicious prosecution

arguments on appeal amount to an attempt

to avoid the two-year limitations period

applicable to her Section 1983 claims and

there is no evidence that justifies

imposing liability on the City of Joliet

itself, the judgment of the district

court is Affirmed.