Manuel v. City of Joliet Page 2

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Audio Transcription for Oral Argument - October 05, 2016 in Manuel v. City of Joliet

Anthony M. Kennedy:

 Under malicious prosecution law in the States generally, just as a general principle, would there be a malicious prosecution claim for the fabricated evidence in the Gerstein case or in the pretrial suppression?

Stanley B. Eisenhammer:

 I believe -- I believe.

Anthony M. Kennedy:

 So then they would be with, so at least there's a legal recognition that there can be a malicious prosecution claim in the Gerstein hearing.

Stanley B. Eisenhammer:

 No.  It's really Fourth -- well, here, it's a Fourth Amendment claim. We're not -- we're not raising --

Anthony M. Kennedy:

 I'm asking if, under laws, the tort law generally, you can bring a malicious prosecution claim if there's fabricated evidence produced at the Gerstein hearing that results in --

Stanley B. Eisenhammer:

 In your release?

Anthony M. Kennedy:

 -- that results in detention.

Stanley B. Eisenhammer:

Well, yes --

Anthony M. Kennedy:

 That's why there's and you're suing.

Stanley B. Eisenhammer:

 Right.  But you have be -- there has to be a favorable termination in order for you -- it's an element of -- of State court malicious prosecution, so you need to be --

Anthony M. Kennedy:

 Okay.  It's months -- or six weeks later.

Stanley B. Eisenhammer:

 It would be a malicious that would be a malicious prosecution claim under State law.

Ruth Bader Ginsburg:

 Well, why do you make cutoff conviction?  If it turns out, even on habeas, that the police have lied all along and there was never any basis for holding this person, why doesn't -- why don't you have your Fourth Amendment claim until the point where you're released from this unlawful custody?

Stanley B. Eisenhammer:

 You -- you could if you if you ruled that way.  Generally, this Court has ruled that after conviction, there is -- there is due process, your trial rights have been violated, so that has been a different amendment that you've gone under.  In this case --

Ruth Bader Ginsburg:

 It's the same It's the right you had from the very beginning.

Stanley B. Eisenhammer:

 It could be a -- it be a Fourth Amendment right.  You could have more than one amendment cover more than one -- the same set of facts.

John G. Roberts, Jr.:

 Well, but just a different consequence to whether you terminate a Fourth Amendment right or a due process right under Parratt v. Taylor.

Stanley B. Eisenhammer:

 Well, we're claiming a Fourth Amendment right.

John G. Roberts, Jr.:

 Well, I know. you just answered in response to the question that one could be both.  But if it's both --

Stanley B. Eisenhammer:

 Yes, it could be Usually -- or at least reading Justice Kennedy's concurrence, it appeared that the due process provision -- the due process claim dealt with the issue of whether to prosecute, as opposed to this issue, which is the decision to hold somebody, detain somebody, pending a decision to prosecute or a trial.  So it's the Fourth Amendment that really covers this rather than due process.

Sonia Sotomayor:

 What happens to person who's let out on bail?  Are they out of luck under your theory?

Stanley B. Eisenhammer:

 No.  No.

Sonia Sotomayor:

 Are you defining "detention" as broadly as Justice Ginsburg was?

Stanley B. Eisenhammer:

 Yes.  And in and in Gerstein, the Court did make recognition that -- that detention could go beyond being released, depending on the conditions of the release.  So it's not just -- I would say it's not just Justice Ginsburg's concurrence. It was this Court's opinion in Gerstein that that was a possibility.

Ruth Bader Ginsburg:

 Can you explain why, if we accept your theory that -- that the unlawful detention continues until he's released, why shouldn't the statute of limitations trigger the -- when he is initially arrested?  Why -- why should the trigger for the statute of limitations be different just because we label this Fourth Amendment --

Stanley B. Eisenhammer:

 I think there's -- some good reasons for that.  They were expressed in Heck, which applies in this particular case, too.  You don't want to have parallel -- parallel litigation.  You don't want to have conflicting decisions between the State and the criminal court, and you don't want to -- you don't want to have a collateral attack.  That collateral attack works to the detriment of -- of the prosecution and to the defense in the case. I think Justice Kagan's opinion in Kelly illustrates the harm that could happen to the prosecution if you allow someone to collaterally attack -- use a sophisticated attorney to collaterally attack the decision on probable cause while the case -- while the criminal case is pending.  If it works to the detriment of the prosecution --

Ruth Bader Ginsburg:

 Mr. Eisenhammer, should we even get to these questions?  As I understand this case, the Seventh Circuit does something, says something that no other circuit does, which is to say that they say that there's no Fourth Amendment claim under Section 1983 at all, full stop. If we think that that's wrong, oughtn't we to just send everything else back to the Seventh Circuit to decide what they think the Fourth Amendment claim looks like?  In other words, what elements it has, what accrual date it has, anything that they think about this Fourth Amendment claim, send it back to them, having told them that they're wrong about whether this Fourth Amendment claim exists.  Why isn't that -- I mean, all this other stuff, the Seventh Circuit hasn't told us what they think about it.  Circuits are split on it.  It hasn't really been briefed because the principal question has been whether there is a Fourth Amendment claim.  Why shouldn't we just send it back to them to decide?

Stanley B. Eisenhammer:

 I would be in with that, because --

Elena Kagan:

 You would be in.

Stanley B. Eisenhammer:

 I would be in with that.