William H. Rehnquist: We'll hear argument next in No. 92-833, Kevin Albright v. Roger Oliver. Mr. Bisbee.
John H. Bisbee: Mr. Chief Justice, and may it please the Court:
William H. Rehnquist: Wait just a minute, Mr. Bisbee. Spectators should not talk while they remain in the courtroom. The Court remains in session.
John H. Bisbee: --Thank you, Your Honor. If it please the Court: This case arises under the Civil Rights Act of 1871, which affords a cause of action to individuals who are deprived of rights secured by the Constitution of the United States by officials acting under color of State law. This Court has frequently admonished and instructed that those of us litigating these cases advise of the specific nature of the right protected. The right protected asserted by Mr. Albright in this case is the right to liberty secured by substantive due process. This Court has further admonished and instructed counsel that when a right protected... or liberty right protected by substantive due process is asserted, that the party declare... delineate with some degree of particularity the exact nature of the right. And the exact nature of the right that Mr. Albright asserts in this court today, Your Honors, is the right to be free of a criminal prosecution except upon probable cause to believe that a crime has been committed and that the individual sought to be made the party defendant committed the crime. The United States Court of Appeals for the Seventh Circuit in Chicago held that we... that Mr. Albright did not state a cause of action. The court, however, did state that the actions of the defendant, the respondent in this case, Mr. Roger Oliver, a police detective with the city of Macomb, Illinois Police Department, a city of about 25,000 people... his actions were shocking and that they, in all likelihood, had exceeded the boundaries of reasonableness which that court had--
Sandra Day O'Connor: Well, Mr. Bisbee.
John H. Bisbee: --Yes, Your Honor.
Sandra Day O'Connor: Why is it that the mere filing of a criminal charge without more should constitute a deprivation of liberty? The State is just saying we have cause to believe that you, John Jones, committed a crime. Now, why is that a deprivation of liberty at that stage?
John H. Bisbee: Your Honor, I believe if that charge is without probable cause... it is without deprivation of liberty, but the Court need not reach that question particularly under the circumstances--
Sandra Day O'Connor: Well, why should it be, in light of holdings that, for instance, a defamatory statement by a government official would not constitute a deprivation of liberty?
John H. Bisbee: --A defamatory statement by a government official does not deprive liberty because it does not deprive any right protected by the Constitution of the United States, Your Honor. That is why. The charge... the invocation of criminal process; the bringing to bear of the most severe power possessed by government against an individual; the requirement that the individual at that point do whatever is necessary, whether it be the posting of bond with the State, whether it be the securing of counsel, whether it be the procuring of investigative services, whether it be whatever else is necessary in order to defend not just his reputation but his very liberty, his very ability to lead his life as he has chosen to lead his life; that is what is at stake at that point.
William H. Rehnquist: So your contention is that even though he is never arrested on the criminal charge, that the mere filing of it deprives him of liberty.
John H. Bisbee: If the mere filing of it is without probable cause, Your Honor, that is my contention. But the Court need not reach that issue.
Ruth Bader Ginsburg: Mr. Bisbee, he was arrested, and police officers don't prosecute, they arrest. And what troubles me about the case you're bringing is you start out with a potential Fourth Amendment claim, an analogy to the common law false arrest. That's what the police officer does and that's what he's responsible for. And then you're shifting over to substantive due process because you missed out on what you conceive to be the statute of limitations. The Fourth Amendment governs the police officer's conduct. It says thou shalt not seize unreasonably without probable cause. Why isn't that the rubric under which this case should be treated? Why should we suddenly get into a new territory simply because the action was started arguably too late?
John H. Bisbee: Justice Ginsburg, it is altogether correct, as you state, that the police officer's original and customary duty is to make the arrest. You're also absolutely correct that the criteria in the Fourth Amendment governing reasonable searches and seizures govern his actions. But with all respect, Justice Ginsburg, your statement is incomplete in that in most jurisdictions, including Illinois, a police officer plays a substantial role in the institution of the criminal charge itself. And it did in this case. And most often, Your Honor, the police officer is the one, because of the burdens placed upon the prosecutor's office. As the Court enunciated so clearly in Imbler v. Pachtman, 10, 15 years, it is the police officer who is the one who is privy to and has knowledge of the investigative sources, the people who are able to give him information as to when crimes are--
Ruth Bader Ginsburg: What is the police officer doing other than backing up his arrest? He made an arrest and then the person technically is in arrest status until the criminal case is over. He's released on bond, but he is technically arrested for the duration of that procedure. So why does the police officer's participation shift from the arrest... initial arrest, and then whatever statements he makes thereafter is consistent with maintaining the arrest, rather than shifting the police officer from the role of police officer to the role of prosecutor?
John H. Bisbee: --I must respectfully disagree with the predicate of your question. In this case the officer attested to the charging document. The officer did far more than simply create the impetus for the arrest. He attested to the charging document itself. He attested to the facts that he asserted, that Kevin Albright had sold controlled substances to someone named Veda Moore.
Ruth Bader Ginsburg: Couldn't that be regarded simply as consistent with and perpetuating the arrest status of the defendant?
John H. Bisbee: Well, it certainly is part of that. But, Your Honor, as this Court held in Malley v. Briggs, the... individuals are held responsible for the natural consequences of their actions. And certainly a police officer who participates, particularly as materially as Detective Oliver did, in the attestation to the criminal charge, has begun an action the natural consequence of which, the inevitable consequence of which is going to be the criminal prosecution. And in this case it was a criminal prosecution, we allege, without probable cause.
William H. Rehnquist: What is the closest decision of this Court, Mr. Bisbee, that supports your contention that the interests of the defendant in not being prosecuted on probable cause is a substantive liberty interest?
John H. Bisbee: Probably Brinegar v. the United States. A close second, Your Honor, being--
William H. Rehnquist: What was the first one?
John H. Bisbee: --Brinegar v. the United States, decided in 1949.
William H. Rehnquist: Well, that didn't... that dealt with the Fourth Amendment.
John H. Bisbee: It certainly did. But the language... the dictum, Your Honor, and I think dictum whereby this Court has assumed that probable cause for a prosecution is necessary--
William H. Rehnquist: Well, Brinegar was a case in a Federal court and the dicta certainly didn't say that not being... freedom from prosecution without probable cause is a substantive liberty interest, did it?
John H. Bisbee: --Your Honor, it came awfully close. Because Brinegar did say that the probable cause standard was designed to prevent unfounded charges of crime and to protect the individual from unfounded charges of crime, notwithstanding the fact that it arose in a Fourth Amendment search context under the Volstead Act, or something.
William H. Rehnquist: Well, do you think we should then go through all our cases that explain the reason for the adoption of, say, the Fourth Amendment or the Fifth Amendment, and say that all of those reasons become substantive liberty interests?
John H. Bisbee: Well, I think... in your case... in this situation, Your Honor, the answer is yes. Because you can go back. In a linear... in a linear chronology, going back to Hurtado v. California in 1884 where the Court in very clear terms... when it said that a grand jury was not necessary, the grand jury indictment was not necessary to due process, nonetheless said that the core value, the core value which the grand jury was designed to protect, namely the right to be free from prosecution except upon probable cause, was very much a part of the individual liberty. And you take that type of... you take the language and the holding in Hurtado v. California, you take it into Brinegar v. the United States, and you tie it in, then, with cases like Ingraham v. Wright, which is the student paddling case, and you take footnotes 41 and 42 and you have the Court coalescing, coalescing the liberty to be free from unwanted infliction of State--
William H. Rehnquist: You're taking three cases, all of which were decided against the claimant of constitutional rights, and saying that dicta in them have created a new constitutional right.
John H. Bisbee: --Your Honor, I'm saying that the dicta in those cases created the assumption that has been implicit in this Court's decisions from... as long... as far back as 1884 in an explicit sense, that probable cause is required to support a prosecution.
Ruth Bader Ginsburg: Mr. Bisbee, are you familiar with Graham against Connor, a 1989 decision of this Court?
John H. Bisbee: Yes.
Ruth Bader Ginsburg: Which seemed to me similar in that there was an argument that we shift from the Fourth Amendment to the Fifth Amendment. And the Court said no, this entire case should be analyzed as a Fourth Amendment case.
John H. Bisbee: That's because it was a Fourth Amendment case. That's because the case involved the detention... the arrest and detention of the individual under circumstances of excessive force. And--
Ruth Bader Ginsburg: Wasn't Mr. Albright seized throughout... from the time that he first showed up until the time that that criminal charge was dropped, wasn't he technically seized?
John H. Bisbee: --Certainly. But we don't claim any excessive force, Your Honor. This is not an excessive force case, as was Graham.
Ruth Bader Ginsburg: But I thought you were claiming that he was seized without probable cause?
John H. Bisbee: Well, he was seized without probable cause. He would have--
Ruth Bader Ginsburg: Isn't that a Fourth Amendment violation?
John H. Bisbee: --That would have been. But we... as you--
Ruth Bader Ginsburg: Without... you can do it as gently as possible.
John H. Bisbee: --Pardon... excuse me?
Ruth Bader Ginsburg: You can do it entirely gently. If you have no reason to arrest a person, it's a Fourth Amendment violation.
John H. Bisbee: That part of it is. But that, Your Honor, quite honestly, is ancillary to the essential problem. In the general circumstance, an arrest, or a search, or the other problems protected against by the Fourth Amendment are most often mere incidents of what is really at stake here, and that is the invocation of--
Ruth Bader Ginsburg: Is it... is it an incident that the person is in a state of seizure until the criminal prosecution is dropped. He's out on bond but he's got restrictions, and all that is an attribute of being arrested.
John H. Bisbee: --Your Honor, it's an attribute of being arrested at some point. As this Court said in Graham v. Connor, at some point to the time of charging, at which time the due process clause does take over.
Ruth Bader Ginsburg: I can understand your argument if the arrest started at a certain point and stopped, and then the charge started at a certain point. But if, what I thought I heard you to say, the seizure, the arrest does indeed continue, that the person remains in a state of arrest until the criminal charge is dropped, then I don't understand why we go from the Fourth Amendment to the Fifth Amendment.
John H. Bisbee: Well, in the... the easy answer to that in this case, as you pointed out, was that the statute of limitations was not abided by by the plaintiff in this case, and therefore he had no Fourth Amendment claim. He could not do it because the cause of action for a Fourth Amendment claim accrued at the time of the arrest. So we--
Ruth Bader Ginsburg: But why do you... you take that to be gospel. Is it necessary... necessarily so? If one conceives of the arrest as continuing until the criminal charges are dismissed, then maybe the statute of limitations should have started ticking later rather than earlier.
John H. Bisbee: --Maybe so. But as I understood--
Ruth Bader Ginsburg: But you didn't argue that.
John H. Bisbee: --I didn't argue that and it's not how I understood the law. Because I did understand the law to be simply that the cause of action for an arrest, whether at common law or under section 1983, accrued at the time of the arrest. Nevertheless, Your Honor... and the point is that Graham v. Connor was explicit that at some point... now, whether we're talking about something metaphysical here or not, I don't know. But at some point after the arrest has taken place, the due process clause does take over.
David H. Souter: All right, assuming it does and assuming that we were to accept your position by approaching the case not on the assumption that Justice Ginsburg has questioned on, but on the assumption that somehow there is an independent set of interests at stake, your answer to Justice O'Connor's question in which you were telling, sort of, what the... what the consequences were, were all property consequences. So that even if we accept your analysis, aren't you making, not a substantive due process claim based on liberty, but a substantive due process claim based on property? You know, he had to put up bail, he had to hire counsel and so on. Those are all money issues.
John H. Bisbee: Well, those too are money issues, those too are property issues. Property issues certainly are not irrelevant to this claim, and they're certainly not--
David H. Souter: They don't turn it into a liberty claim, do they, independent of the liberty interest implicated by the arrest and its consequences for him?
John H. Bisbee: --Not necessarily so, but they are alleged in the complaint in this case. But, Your Honor, I do believe--
David H. Souter: No, I realize that. But, I mean, are they consistent? If you don't accept Justice Ginsburg's analysis, then are the consequences that you're resting on consistent with a liberty due process claim?
John H. Bisbee: --Well, we believe they are, Your Honor, for the simple reason that the liberty to be free from a prosecution, with all of its attendant consequences, is... entails--
David H. Souter: Well then under the Takings Clause we've got a liberty interest because the property owner has a liberty interest in being free from improper takings. I mean, if that's going to be the analysis, everything would be subsumed under liberty now?
John H. Bisbee: --But that's a specific prohibition. Here liberty is the broad majestic term. Liberty is the term that is... that is customarily used, and liberty is the term that falls--
David H. Souter: Isn't there some majesty in property under due process?
John H. Bisbee: --Well, certainly there is, Your Honor. But there is... that is a separate prohibition. And we have here... under the liberty rubric we have several... the essential problem that is created in a situation like this is the freedom of the individual from the arbitrary conduct of the Government.
Ruth Bader Ginsburg: You can't go after the prosecutor. Isn't that so?
John H. Bisbee: That's so.
Ruth Bader Ginsburg: Isn't it odd that you're going after the police officer whose main job is to arrest for a prosecution because you can't go against the prosecutor? Something doesn't quite fit.
John H. Bisbee: We, Your Honor, you know there's certainly superficial appeal to that position. I sympathize with it. It is not, however, altogether complete for the simple reason that oftentimes it is the police officer who is the one most privy to what it is that constitutes a crime.
Sandra Day O'Connor: Well, Mr. Bisbee, it could well be that the police officer just sees what he sees and reports it to the prosecutor without being negligent or deficient or misleading, and the prosecutor makes a decision to proceed.
John H. Bisbee: In which case the police--
Sandra Day O'Connor: Should the police officer be liable?
John H. Bisbee: --No, he shouldn't be, and I don't think he would be because there--
Sandra Day O'Connor: Absent any misleading or misconduct?
John H. Bisbee: --He would... if what the police officer presented to the prosecutor is within the realm of what the Court talked about as being within the realm of objective reasonableness in Malley v. Briggs, the police officer would not be liable. There would be no causation.
Sandra Day O'Connor: Let me ask you something else. To what extent do you rest your claim on the deprivation of the right to travel?
John H. Bisbee: We rest the claim on the right to travel as an incident of the liberty. I suppose the right to travel in this case, because Kevin Albright alleged that he sought to go to St. Louis, Missouri for purposes of seeking job prospects, could be construed also as property, and sometimes those lines blur. We would consider that a liberty right. I think it's been held by this Court in any number of cases to be a liberty right. It is implicit in the broader liberty. I believe I indicated in the petition for certiorari that I had more or less focused on that in the court of appeals, but I do believe it to be a incident of the broader liberty we're talking about, the freedom from arbitrary governmental conduct, which is really what happens when you have the invocation of the State criminal process under circumstances where there is no probable cause.
William H. Rehnquist: And you didn't mention in-- --Mr. Bisbee, you don't mention anywhere in your brief on the merits any right to travel, your blue brief.
John H. Bisbee: Well, I believe... you may be correct. I can't remember at this moment, Your Honor. But certainly the aspect... it is alleged in the complaint.
William H. Rehnquist: Well, it may be alleged in the complaint, but the complaint was a couple of years ago back in the district court. Your opponent here is entitled to judge what he has to respond to by the terms of the brief you file here.
John H. Bisbee: Well, I'll concede that certainly, Your Honor. And if... if, indeed, there is any failure to mention the freedom to travel in the brief, then I was remiss in failing to do so. It was, I know, however, specified in the petition for certiorari, in which I indicated that the right to travel is but an incident of the broader liberty here that we assert. The broader liberty that comes in under the various criteria of substantive due process which this Court has always... has protected, has set forth. The concepts of... being implicit in the concept of ordered liberty, deeply rooted in our Nation's history and traditions. And most importantly in this case, the freedom from arbitrary governmental conduct.
Ruth Bader Ginsburg: Mr. Bisbee, you are making a constitutional tort analogue for the common law tort of malicious prosecution. But you had a diversity case and you had a malicious prosecution common law claim which you dropped. Why did you... why did you drop the malicious prosecution claim?
John H. Bisbee: It was... Your Honor, it was dismissed with leave, without prejudice, under the provisions of rule 41(a)(1), (2), or something like that, without prejudice. However... and with due respect to the resourcefulness of my opposing counsel, Illinois has a statute of limitations whereby claims against municipal employees must be brought within 1 year. So the statute of limitations in our... I don't want to make a total judicial concession here, but the statute of limitations with respect to the claim against Oliver under a common law malicious prosecution theory probably also is barred by the statute of limitations. But it is... it has not been formally dismissed. There is leave to reinstate it if need be. I don't have... I'm not sanguine about its prospects if it is reinstated.
Ruth Bader Ginsburg: You're saying one reason... one reason was the statute of limitations. Was the other reason so you could have a final judgment?
John H. Bisbee: Well, that did create a final judgment, Your Honor, correct. But it's... but that wasn't an academic final judgment because I am not sanguine at all about the prospects for the common law malicious prosecution claim.
Ruth Bader Ginsburg: And you never did argue that on the... on the false arrest, or Fourth Amendment arrest without probable cause, that the statute of limitations might have run from the dismissal of the charges rather than from the date of the arrest?
John H. Bisbee: I did not argue that, Your Honor. I did not believe that to be the law. I did not think that would be a good faith argument. I think that the proper argument that I have to make in this case--
Ruth Bader Ginsburg: A good faith argument... you think it's meritless to say that the statute of limitations might have run from when the arrest ended rather than from when the arrest started?
John H. Bisbee: --As I understand the... as I understood the law at that time. Now, I may be being educated at this very moment, but as I understood the law at that time, the cause of action for a false arrest accrued at the moment of the arrest. And the 2 years had expired by the time the case came to my attention, came to me.
Antonin Scalia: Mr. Bisbee, could I go back to what Justice O'Connor was asking. What... why... you say what is involved here is freedom to be free from arbitrary government action. But defamation by a government official, let's say a police chief who issues a bulletin saying that you're a criminal, that's arbitrary government action. Now, what deprivation of freedom existed here that did not exist in that case?
John H. Bisbee: Your Honor--
Antonin Scalia: Other than the arrest.
John H. Bisbee: --Your Honor--
Antonin Scalia: You say he had have to spend money to defend himself. So also in the defamation case, you have to spend money to rehabilitate his reputation.
John H. Bisbee: --Your Honor, the processes of the State are not invoked in any formal sense in the case of an incidental defamation by someone who happens--
Antonin Scalia: So what. Who cares about processes so long as you're not under arrest?
John H. Bisbee: --Who... Your Honor, who cares about processes when you're facing the prospect of jail, when you're facing the prospect of punishment, when you're facing--
Antonin Scalia: You could say the same thing in the defamation case. You... you're reputation is ruined. You can't get a job. People won't hire you. You have to spend money to somehow rehabilitate your reputation. Why isn't that a deprivation of liberty?
John H. Bisbee: --Your Honor, that may be the situation. That may be the most onerous of situations--
Speaker: Why?
John H. Bisbee: --Which attains in the defamation situation. However, it is a necessary consequence of what happens when the State begins criminal process. When the State attempts in a systematic... the criminal law, after all, Your Honor--
Antonin Scalia: The only thing different, it seems to me, is that in the one case you're arrested, you cannot run around without posting a bond or whatever. Whereas in the other case you're subjected to just as much expense, just as much heartache, just as much inconvenience.
John H. Bisbee: --Justice Scalia, as you well know, you know as a scholar of the law, the criminal law is nothing more than the organized vengeance of the State. And that has what has... that is what has been wrought against the individual when criminal processes commence. That doesn't happen with the incidental publication of a flyer.
Antonin Scalia: It's the organized vengeance, but it wreaks that vengeance by grabbing your body and throwing it into jail.
John H. Bisbee: Your Honor, as this Court said a long time ago... and maybe the case has been decimated beyond any... any practical value at this time, but in Boyd v. the United States this Court said that the incidents of arrest and the search and the seizure and things of that sort are mere incidents of aggravation to what happens when the individual becomes the victim of the organized vengeance of the State. And that is what has been happen... that's what happens in the case of a prosecution. That is what happens in the case of a prosecution when there is no buffer, no buffer like probable cause. And that is the rule that we ask this Court to adopt. And I notice that my time is running short. I would like to reserve the remaining time, if I may, please, Your Honor.
William H. Rehnquist: Very well, Mr. Bisbee.
John H. Bisbee: Thank you.
William H. Rehnquist: Mr. Sotos, we'll hear from you.
James G. Sotos: Thank you, Mr. Chief Justice, and may it please the Court: Your Honors, we have three principal submissions. First, that the Court should not expand the concepts of fundamental liberties and substantive due process in order to reach a claim that an individual was charged with a crime without probable cause so long, of course, as that individual was not incarcerated pending disposition of the charges. Secondly, to the extent that there might be some intrusion on a liberty interest, the focus for purposes of due process should be on whether the State provides adequate procedures in order to protect against the risk of an arbitrary deprivation of that interest. And in this case I would point out that the petitioner concedes he advances no challenge to Illinois' procedures for processing and filing of criminal charges. Finally, in the event that the Court determines that there would be a fundamental right which could potentially be implicated under the circumstances of this case, we would submit that principles of substantive due process should not be implicated unless a petitioner or a plaintiff alleges facts which are sufficient to support an inference of malice or improper purpose or some other form of intentional or egregious misconduct.
Anthony M. Kennedy: Does the existence of the cause of action for malicious prosecution in the State of Illinois have a bearing on any one of those three rationales that you've mentioned?
James G. Sotos: We think it would have some bearing on our second submission with respect to the procedures that are provided by the State. The State provides comprehensive procedures for the filing and processing of charges. Information has to be filed upon a prosecutor's official oath. The Sixth Amendment safeguards, of course, attach at the time of the filing of the charge. Illinois provides all criminal defendants with a preliminary hearing to determine probable cause.
Anthony M. Kennedy: All right. And so far... and that's how I understood your second point. All you said is that the Illinois criminal procedures system is adequate to vindicate the right.
James G. Sotos: We--
Anthony M. Kennedy: But that doesn't seem to me to account for the malicious prosecution action which I'm somewhat surprised that is missing from your analysis.
James G. Sotos: --Well, we do believe that under a Parratt v. Taylor type analysis, that the fact that the State of Illinois provides a common law tort remedy for malicious prosecution certainly makes it much easier for the Court to conclude that the entirety of Illinois' procedures are adequate. And certainly the malicious prosecution remedy is a very important aspect of those procedures.
John Paul Stevens: Yes. But if the challenge is to... of the adequacies of Illinois' criminal procedures, would it be... would you say the criminal procedures are preserved... reserved from challenge because there's a civil remedy, when there's a civil remedy? That's quite different from Parratt. There you had a civil claim. And you say you looked at the entire procedure to say that that's adequate.
James G. Sotos: We think that the focus, for purposes of a procedural due process analysis, should be on the entirety of the remedies that the State provides. And that includes the criminal... the remedies that are inherent in the criminal process, as well as the post deprivation common law tort remedy.
Anthony M. Kennedy: But then your argument would be the same if there were no malicious prosecution action in the State of Illinois?
James G. Sotos: That would be a difficult... more difficult case, but we would... I would not take the position that the State remedies were rendered inadequate solely because a State chose to do away with its common law tort remedy.
Anthony M. Kennedy: So you're relying on the State criminal procedure apparatus to vindicate the defendant's rights, correct?
James G. Sotos: In this case we're not, Your Honor, because the State of Illinois does provide the common law tort remedy. But if we were here on another case in which a State did not provide that remedy, we do think there would be a strong argument that the State's criminal procedures, in and of themselves, could satisfy due process. As Justice Stevens indicated in his concurrence opinion in Daniels v. Williams, the State does not have to provide a post deprivation common law tort remedy in all circumstances to satisfy--
Sandra Day O'Connor: Well, so, Mr. Sotos, you take the view, then, that if the officer makes an arbitrary arrest without probable cause there is no Fourth Amendment violation simply because the State has its criminal procedures to take care of these things?
James G. Sotos: --No, certainly we do not take that position. In the arrest context, the actual act of the arrest would implicate a fundamental right under the Fourth Amendment and give rise to a Fourth Amendment false arrest claim. Which I would point out that the Seventh Circuit Court of Appeals noted in this case that the petitioner's complaint did state a valid Fourth Amendment claim for an arrest without probable cause.
Sandra Day O'Connor: Well, do you think there might be a valid substantive due process claim made on the basis of travel restrictions that are imposed as a result of an unlawful arrest?
James G. Sotos: I don't think so. And I would point out that the petitioner pressed the fundamental right to travel claim below.
Sandra Day O'Connor: And why not?
James G. Sotos: Because in this particular case--
Sandra Day O'Connor: That is a constitutionally protected liberty interest, is it not?
James G. Sotos: --Certainly, it is. But there is no contention in this case that this prosecution was brought for purposes of presenting... of preventing Mr. Albright from leaving the State. In--
Sandra Day O'Connor: Well, but if it results in an order saying you can't leave and all of this was obtained on the basis of an unlawful arrest, is there... is there some deprivation of the right to travel there?
James G. Sotos: --I would say not in this case, because there is no allegation here that the petitioner even sought to leave the State.
Sandra Day O'Connor: Well suppose that is the allegation?
James G. Sotos: Under those circumstances, if there had been an allegation that the petitioner sought to leave the State, I would submit that the restriction that the State of Illinois imposes on the fundamental right to travel is a very narrowly tailored restriction which is necessary to serve the State's compelling interest of insuring that criminal defendants appear for trial.
Sandra Day O'Connor: So it's okay to enter such an order even though it is based on an arrest made without probable cause. That makes it okay.
James G. Sotos: No. My point would be that under those circumstances the State's restriction would be justified under a... under a due process analysis, because it was narrowly tailored to serve the State's interest. All the individual has to do is go into court and ask for leave to leave the State. Now presumably if, in a given circumstance, there were some special circumstances that rendered it unlikely that the person would return for trial, then the State's restriction would be justified under those... for those purposes.
John Paul Stevens: May I give you hypothetical that has kind of troubled me as I've thought about this case. Supposing you had an arrest supported by probable cause. A witness had sworn to a set of facts that established probable cause and the man is arrested. But before the preliminary hearing, the witness recants and the police officers investigate the facts and decide there really is not probable cause. The arrest was lawful when made, but at the time they institute the prosecution they know they do not have probable cause. Is there any interference with his liberty by going forward with the case?
James G. Sotos: So, the probable cause would dissipate from the point of arrest--
John Paul Stevens: Correct.
James G. Sotos: --To the time of moving forward. I would submit that that would depend upon whether or not the criminal defendant was incarcerated at the time the probable cause dissipated.
John Paul Stevens: Supposing it was just restriction to the bond conditions. He had to put up money to get out on bond and his travel restrictions are similar to they were in this case.
James G. Sotos: No, we would contend that under those circumstances that's not a significant enough restraint on liberty to warrant a separate determination of probable cause and to prevent the State from going forward.
John Paul Stevens: The restraint is precisely the same as the one that was caused by the arrest.
James G. Sotos: Again, we would distinguish between the restraint that is caused by the arrest, which is an actual seizure where the person's body is taken into custody, and the restraint which may be imposed by the conditions of the bond, which... and in saying that, we don't seek to minimize or belittle the fact that a criminal defendant, even one who is on bail, can suffer a substantial price in terms of anxiety, emotional distress, and--
Ruth Bader Ginsburg: Mr. Sotos, isn't a criminal defendant technically in a state of arrest, whether he's out on bond, until the proceeding concludes?
James G. Sotos: --I don't think so, Justice Ginsburg. Again, I would distinguish between an arrest and a detention and a situation when a person is on bond. When that person is on bond--
Ruth Bader Ginsburg: Isn't... isn't, even on the civil side, the historical notion that the sheriff tags a person, brings that person before the tribunal, and that seizure is what gives the tribunal authority? Is it we're civilized, so we allow the defendant in the civil case to be at liberty, defendant in a criminal case to be at bond, but technically the seizure continues until the proceeding is over? Isn't that so?
James G. Sotos: --I would disagree with that. I would continue to adhere to my position that the seizure occurs at the time of the arrest. The formal charge gives the State... moves the State processes forward. But so long as the individual is free on bail, I would not concede that he is under arrest even in a technical sense. He has the freedom at that point to live with his family and among his friends, to pursue his occupation, in this case his education.
Ruth Bader Ginsburg: So in this case you say there was never really any arrest. You wouldn't even say that there was an arrest, because this person understood that there was a warrant out for him and came in voluntarily.
James G. Sotos: Well, the petitioner alleges that he was under arrest. But--
Ruth Bader Ginsburg: And I thought that that was accepted by the district court and by the court of appeals.
James G. Sotos: --Certainly. And that gave rise at that moment to a plausible Fourth Amendment claim for an unlawful arrest. The problem, as we see it in this case, is because the false... the Fourth Amendment false arrest claim is--
Ruth Bader Ginsburg: What was the moment of that arrest, since he wasn't... he wasn't, in fact, seized by a police officer?
James G. Sotos: --Perhaps at the point where he had to go through the indignities of the booking process, being photographed, taken through the process. He presumably was not free to leave at that point. He had to complete that booking process until he left. And the Seventh Circuit, at least, noted that that was the point which would be considered an arrest.
Ruth Bader Ginsburg: You think... the criminal defendant has asked the question; are you arrested after the charge is lodged? The answer to that question is, no, I'm no longer arrested.
James G. Sotos: That's correct. After he is released from the police station, if he's made bail I think the appropriate answer to that question is I am no longer under arrest. However, I have been charged with an offense which I'll have to answer in court. And I would submit that the reason that the... the fact that the false arrest claim was dismissed as untimely is why we're into this area of substantive due process. What the petitioner really is attempting to do is to take the entire Fourth Amendment body of probable cause jurisprudence and graft it onto the substantive component to the due process clause as a means of reaching the charging decision. And I think that ignores the fact that criminal defendants do not have a right to be charged only upon reliable evidence, in the same sense that a police officer must make a preliminary determination of reliability before conducting a search or a seizure.
Ruth Bader Ginsburg: Whether the arrest technically persists until the end, certainly the effects of the arrest continue until the person is discharged, until the indictment is dismissed... or the information, in this case.
James G. Sotos: I would concede that certainly the criminal defendant suffers the effects, the anxiety and the emotional distress as a result of the pendency of all of the proceedings against him, which may include the fact that he had been arrested. Nonetheless, I would not concede that the arrest itself actually continues through the point of determination to the proceedings. The arrest occurs when the individual's freedom of movement is curtailed at the point when he is taken into custody. And then when he is released, I would submit that that arrest is over.
Antonin Scalia: Even if there are restrictions where he can travel on his release? What was it, don't leave the State?
James G. Sotos: That, again, would depend upon... I think that would depend on an allegation that the petitioner would have to make that the proceedings were brought in order to curtail his fundamental right to travel and--
Antonin Scalia: Is the arrest over once he's released from the jailhouse, even though he's told he can't leave the State?
James G. Sotos: --If he was told that he could not leave the State.
Antonin Scalia: Right.
James G. Sotos: That would perhaps be true. In this particular case, the State of Illinois' restriction requires only that the individual go into court and seek leave of court before leaving the State. I don't view--
Antonin Scalia: Well, if we said don't leave the State unless we tell you you can, that's what you should say. Don't say don't leave the State, just say don't leave the State unless we tell you you can leave the State, right? You really think that makes a difference?
James G. Sotos: --Well, again, I think that the... for purposes of analyzing the... any claim that... which would be based on a fundamental right to travel, the focus would have to be on whether or not the State's restriction was narrowly tailored to serve its compelling State interests.
Antonin Scalia: I'm not talking about right to travel now. I'm talking about arrest. Are you under arrest when you're... when you're released from the jailhouse but cannot leave the State?
James G. Sotos: If you're told--
Antonin Scalia: And if you say no, my next question is going to be what if you can't leave the city?
James G. Sotos: --I would think that that would... if you're told you can't leave the city or the State, that that would be tantamount to perhaps a continuation of the arrest. But still, under those circumstances, that would only give rise to a Fourth Amendment claim for an unlawful arrest.
Ruth Bader Ginsburg: That was my question. Doesn't the arrest persist in the sense that he's still under the restraint of the arrest, can't leave the State without court permission? The allegation here is he didn't seek the court's permission because it would have been expensive, his lawyer's clock would have been ticking for the time that the application was made.
James G. Sotos: We don't view that as a necessary... as an acceptable justification for not going into court and asking the court to leave... to leave the State.
Ruth Bader Ginsburg: But the question is doesn't that restraint show that the arrest is, indeed, continuing, that he can't leave the State without getting permission from the court?
James G. Sotos: Again--
Ruth Bader Ginsburg: If he weren't arrested, why would he need the State's permission?
James G. Sotos: --We would not make that concession. We think this case differs from Justice Scalia's hypothetical because he was not told that he could not leave the State. There were incidental restrictions on his bond which included a requirement that he ask the... ask the court before he leaves the State. We don't view that as being the same as a situation where a person is arrested and then told you cannot leave the State, you cannot leave the city.
Ruth Bader Ginsburg: You cannot leave the State unless the court permits you to.
James G. Sotos: Unless you first seek leave of court, correct.
William H. Rehnquist: Well, I suppose you would argue at least that before a defendant subject to that sort of a bond could raise the question, he would have had to go and see if he might have been allowed to leave the State.
James G. Sotos: Certainly, that is our contention, that the individual would at least have to allege that he sought to leave the State and he was restricted from doing so, before he would raising a claim based on a fundamental right to travel. And I would again point out that that issue is nowhere mentioned in the petitioner's brief and it's only mentioned in his--
Ruth Bader Ginsburg: I wasn't asking about a fundamental right to travel. I was and I'm still concerned about the status of this person as an arrested person, and whether that's an indication that maybe he's still under arrest.
James G. Sotos: --We would contend that under the circumstances of this case he was not under arrest after he left the police station, and was essentially free to go about his daily affairs with very few restrictions by the State.
Ruth Bader Ginsburg: And if he couldn't make bail so that he was actually incarcerated, would his claim be a Fourth Amendment or Fifth Amendment claim?
James G. Sotos: We believe that under Gerstein v. Pugh that would be a Fourth Amendment claim, because Gerstein held that the Fourth Amendment requires a preliminary determination of probable cause to all criminal defendants who are incarcerated who don't make bail. In asking the Court to exercise restraint and to not recognize a new fundamental right in this case, we do not dispute the fact that the Constitution can play a prominent role with respect to the charging decision. Charges that are brought on the basis of a person's race, sex, or religion can all give rise to an equal protection claim. A prosecution initiated in retaliation for a person's exercise of their right of free speech or as a result of a person's political views can give rise to a First Amendment claim. And, again, to the extent that the filing of the charge is viewed as implicating some liberty interests, it's our position that due process should focus on the procedures that the State provides. And, again, under Illinois law there are a host of procedures inherent in the criminal process and there is, of course, if all of that isn't sufficient, the recognition by the State of a common law tort claim for malicious prosecution.
Ruth Bader Ginsburg: Which was time barred, and that's why it was dropped?
James G. Sotos: Early in the proceedings in the district court I pointed out to Mr. Bisbee that the Illinois Tort Immunity Act required common law claims against public officials to be brought within 1 year... a common law malicious prosecution claim to be brought within 1 year of the dismissal of the charges. And it was after that that he dropped the common law malicious prosecution claim--
Ruth Bader Ginsburg: Without prejudice?
James G. Sotos: --Without prejudice, that's correct. One other flaw in the petitioner's probable cause standard that he proposed upon this Court, we believe, is that it would permit liability for mere negligence of a public official. And in so doing, what the petitioner is seeking to create is a Federal remedy which is not only supplementary to the remedy which is provided now at the common law, but in fact is a much broader remedy because what it does is read out the element of malice which exists at the common law. As a result of that, under the petitioner's probable cause standard it is conceivable that virtually every criminal defendant, after acquitted, could turn around and sue in Federal court claiming that the evidence was insufficient to support the charges against me. We would submit that that standard far exceeds the restrictions which this Court has placed on the scope of due process violations in cases like Daniels v. Williams and Davidson v. Cannon, where the Court held that mere negligence is never enough to implicate the due process clause. And, traditionally, what has been required is intentional--
John Paul Stevens: I don't quite understand that argument. Acquitted defendants, in order to prevail, have to prove an absence of probable cause, not just that they were found... not found guilty beyond a reasonable doubt.
James G. Sotos: --That's correct. But our position is that it would be... it would not take a lot for a criminal defendant who was acquitted to turn around and simply allege that the evidence was insufficient to justify the charges against me, which is really what's happening--
John Paul Stevens: And then don't they have a false arrest charge?
James G. Sotos: --Pardon?
John Paul Stevens: If they can do that, don't they have a false arrest claim as a matter of State law, if they're going to argue there was no probable cause?
James G. Sotos: That would address probable cause for the filing of the... for the arrest.
John Paul Stevens: Right.
James G. Sotos: But in this particular case... a little background about this case. What--
Antonin Scalia: I thought you said you needed malice for the State... for the State claim to be sustained.
James G. Sotos: --Of a malicious prosecution claim.
Antonin Scalia: Yes.
James G. Sotos: That's true. And I believe Justice Stevens was--
Antonin Scalia: But not false arrest.
James G. Sotos: --That's correct. A false arrest claim would be based solely on the Fourth Amendment, which requires only that a seizure be reasonable.
Speaker: Okay.
James G. Sotos: What the petitioner really is alleging is this claim is that he was prosecuted on the basis of information which was provided to him by an obviously unreliable paid informant. And in so doing, really what he is contending is that he has the right to be charged only upon reliable evidence. But, again, we know from cases in the grand jury context such, as the United States v. Williams, that that's not the case. In that case the Court refused to require a prosecutor to even turn over exculpatory evidence to a grand jury. Now, in this case we're not even talking about exculpatory evidence. Rather, it involves bits and pieces of information which the petitioner claims cast grave doubt on the informant's reliability: the fact that she was herself a cocaine addict; the fact that the substance which she turned over to the officer turned out to be baking soda; and finally the fact that she had previously identified another member of petitioner's family before suggesting that it was petitioner that sold this substance.
John Paul Stevens: And also the fact that she had about 50 other cases that didn't work out, wasn't that right?
James G. Sotos: Well, again, there are a number of allegations which cast doubt on the informant's reliability. But my point is that in the charging process the State has never been required to justify its charges upon only reliable evidence. That has been a function for the trial process, rather than the charging process. And there's a distinction to be drawn in the Fourth Amendment context where the Fourth Amendment, of course, serves as the only constitutional buffer between the State and the citizen. In those cases police officers are required to make an initial determination of reliability. But, again, that's never been a requirement of the State with respect to the charging process, and acceptance of petitioner's standard here would require that the Court went that far. Your Honors, we have several other backup arguments in our grief... in our brief that address the statute of limitations, qualified immunity, the insufficiency of the petitioner's allegations of municipal liability. But unless there are any questions on those or the other matters I've raised here, I'll leave those to the briefs.
William H. Rehnquist: Thank you, Mr. Sotos. Mr. Bisbee, you have 4 minutes remaining.
John H. Bisbee: Thank you, Your Honor.
Ruth Bader Ginsburg: Maybe you can clarify whether you're urging here reversal of the judgment against the city... the City of Macomb, or is that out of the case now?
John H. Bisbee: It's not out of the case. I am not urging... I am urging reversal of the judgment against the City of Macomb.
Ruth Bader Ginsburg: On the basis of what?
John H. Bisbee: Now, let me see if I... perhaps I misunderstood your question, Justice Ginsburg.
Ruth Bader Ginsburg: I understood that the... the City of Macomb was out of it because there was no pattern or practice or something to establish--
John H. Bisbee: That's correct. We have alleged in the complaint that the city council and the mayor delegated to Officer Oliver the right to make all final determinations in terms of how to effect and how to enforce the Illinois laws relative to controlled substances within the corporate limits of the City of Macomb.
William H. Rehnquist: --Well, where is that in your question... your question presented certainly doesn't say anything about a judgment against the City of Macomb.
John H. Bisbee: And by further answer to that, I do not believe that is raised within the... it's contemplated within the question presented on certiorari.
William H. Rehnquist: So it's not for us to decide.
John H. Bisbee: I wouldn't think so, and I should have answered that quickly. Your Honor, one... Mr. Chief Justice, one thing I would like to point out. I was not as remiss as I thought when I advised you that I did not raise the issue of travel in the brief. At page 7 of the petitioner's brief we do set forth in the statement of facts that a standard condition of his bond prohibit him from traveling outside the State of Illinois. And on page 18 of the brief we made mention again of the other conditions imposed upon his liberty. So the point was raised.
William H. Rehnquist: But you never raise it as the... as a claim of a constitutional right to travel.
John H. Bisbee: Not as a separate constitutional claim of right to travel, except as set forth in the complaint. It was the petitioner's assumption that it was subsumed within the general and broader liberty. And another point I did not address in responding to Justice Souter's questions as to the liberties going beyond the purely property interests that... which he pointed out to me. The Sixth Amendment speedy trial cases point out precisely the types of liberties that are imposed when someone is prosecuted. And, indeed, in Barker v. Wingo the triggering point of the prejudice is a certain passage of time which... whereby prejudice is assumed. And in United States v. Lovasco, this Court said that the mere filing of prosecution creates the anxiety and the other things which necessarily impose upon an individual's liberty who is subjected to the organized vengeance of the State.
Ruth Bader Ginsburg: Mr. Bisbee, you are taking the constitutional tort enunciated in Bivens and you're fitting it precisely to the common law mold. It seems to me that diminishes the notion of a constitutional tort to say, well, it comes in pieces, and so here is the false arrest piece and here's the malicious prosecution piece, and we make it coincide precisely with the common law tort development.
John H. Bisbee: Your Honor, I hope that I am not understood as saying that. I hope that I am understood as saying what the Chief Justice indicated in Daniels v. Williams, that the due process clause protects against the... or involves the large interests of the governors and the governed. And there is not a larger interest of the governors and the governed than the prosecution of an individual. And, indeed--
Ruth Bader Ginsburg: So the whole thing should... Bivens even should have been under... instead of the Fourth Amendment, should have been under due process because it's this encompassing concept.
John H. Bisbee: --As I understand Bivens, Your Honor, it came about simply because there was not a... an analogue to section 1983 which covers Federal... Federal deprivations of constitutional rights committed by Federal officials. That is the real gravamen of Bivens. Here we have the situation where there is a specific statute designed to enforce the Fourteenth Amendment which, in turn, was designed to enforce the results of the Civil War, and made applicable to prevent State officials from abridging rights protected by the Constitution. And the right to be free from a prosecution without probable cause, far from what Mr. Sotos said to the Court a moment ago, as a new right... it is not a new right, it is a right which has been--
Ruth Bader Ginsburg: But I don't... I understand what you said, that there was nothing... no statute between the Constitution and the claim. Here there is 1983. But in terms of the notion of the constitutional basis for it, why didn't Bivens then go to the Fifth Amendment instead of the Fourth Amendment?
John H. Bisbee: --Well, I don't know why the Court did what it did in Bivens in that respect, Your Honor, except to say that all elements, the Fourth, the Fifth, and the Sixth Amendments all combine to create and delineate the contours of the liberty which is protected in these situations from a prosecution. My time is up. Thank you very much.
William H. Rehnquist: Thank You, Mr. Bisbee. The case is submitted.