Seventh Circuit Notes Split re Accrual of Unlawful Arrest Claim That Would Undermine the Defendant’s Conviction

Per Wallace v. Chicago, 440 F.3d 421, (7th Cir. Mar. 8, 2006):

. . . [We] reaffirm our holding in Booker v. Ward that a " § 1983 unlawful arrest claim ... accrue[s] on the day of [ ] arrest." Id. at 1056-57. Individuals and attorneys who wish to preserve a claim for false arrest or similar Fourth Amendment violations should file their civil rights action at the time of arrest. It will still be possible, of course, for a district court to stay any such action until the criminal proceedings are concluded, should it conclude in its discretion that a stay would be useful. We note as well that we are addressing only the question of accrual; other doctrines, such as equitable tolling, may also affect the time in which a particular suit may be brought. See Heck, 512 U.S. at 489, 114 S.Ct. 2364 (reserving judgment on whether equitable tolling applies in this context).

One additional qualification is necessary, which in our view answers the concerns expressed in the dissent. Heck itself recognized that it is possible for a § 1983 claim based on false arrest or a similar Fourth Amendment violation "necessarily [to] imply the invalidity of [a plaintiff's] conviction or sentence," Heck, 512 U.S. at 486 n. 6, 487, 114 S.Ct. 2364 (example of plaintiff convicted of resisting arrest who challenges legality of arrest). The case to which the Court pointed, however, is one in which the fact of a Fourth Amendment violation is an element of the claim. In that relatively uncommon set of cases, there is an independent reason to insist that a plaintiff wait to sue until the criminal conviction has been set aside; if she does not, the possibility of inconsistent rulings on the validity of the arrest is too great. Our ruling addresses the normal run of cases, in which the Fourth Amendment violation affects only the evidence that might or might not be presented to the trier of fact. In those instances, we are convinced that a clear accrual rule is superior to a case-by-case approach.

As the parties have noted, the question of the proper rule for accrual is an issue that has divided our sister circuits. Although their reasoning varies, the Second, Fourth, Fifth, Sixth, and Ninth Circuits have held that false arrest claims that would undermine the defendant's conviction cannot be brought until the conviction is nullified. See Harvey, 210 F.3d at 1015 (acknowledging circuit split and holding flatly that "a § 1983 action alleging illegal search and seizure of evidence upon which criminal charges are based does not accrue until the criminal charges have been dismissed or the conviction has been overturned"); Covington, 171 F.3d at 124; Shamaeizadeh v. Cunigan, 182 F.3d 391, 399 (6th Cir.1999) (explicitly rejecting suggestion that § 1983 illegal search claims accrue at the time of injury, since such a rule would "misdirect the criminal defendant" from focusing on "mounting a viable defense to the charges against him"); Cabrera v. City of Huntington Park, 159 F.3d 374, 380 (9th Cir.1998) (holding that success on false arrest claim would "necessarily imply" that conviction for disturbing the peace was invalid as not based on probable cause); Brooks v. City of Winston-Salem, 85 F.3d 178, 183 (4th Cir.1996) (Heck bars civil rights claims "when a § 1983 plaintiff's success on a claim that a warrantless arrest was not supported by probable cause necessarily would implicate the validity of the plaintiff's conviction or sentence"); Mackey v. Dickson, 47 F.3d 744, 746 (5th Cir.1995) (stating that "a claim of unlawful arrest, standing alone, does not necessarily implicate the validity of a criminal prosecution following the arrest," but staying the civil action until the criminal prosecution was completed).

The First, Third, Eighth, Tenth, and Eleventh Circuits have held that false arrest claims accrue at the time of the arrest. Nieves v. McSweeney, 241 F.3d 46, 52-53, 52 n. 4 (1st Cir.2001) (stating that "it is pellucid that all claims based on the officers' physical abuse or arrest of the appellants accrued at the time that those events occurred ... because the appellants had ample reason to know of the injury then and there," and characterizing as "rare and exotic" the "circumstances in which a section 1983 claim based on a warrantless arrest will not accrue at the time of the arrest"); Beck v. City of Muskogee Police Dep't, 195 F.3d 553, 558, 559 n. 4 (10th Cir.1999) ("We generally disagree with the holdings in [Covington and Mackey ] because they run counter to Heck 's explanation that use of illegally obtained evidence does not, for a variety of reasons, necessarily imply an unlawful conviction."); Montgomery v. De Simone, 159 F.3d 120, 126 (3d Cir.1998) (finding § 1983 false arrest claim not barred by Heck ); Simmons v. O'Brien, 77 F.3d 1093, 1095 (8th Cir.1996) (finding § 1983 coerced confession claim not barred by Heck ); Datz v. Kilgore, 51 F.3d 252, 253 n. 1 (11th Cir.1995) (per curiam) (finding § 1983 illegal search claim not barred by Heck ). By aligning ourselves with one side of this debate, we do not break any new ground.