235 F.3d 154 (3rd Cir. 2000), 00-3084, Hector v Watt

Docket Nº:00-3084
Citation:235 F.3d 154
Party Name:EUGENE HECTOR, Appellant v. GORDON J. WATT; ALBERTO DIAZ; RICHARD DAVY; SCOTT HUNTER, in their individual and official capacities
Case Date:December 13, 2000
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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235 F.3d 154 (3rd Cir. 2000)



GORDON J. WATT; ALBERTO DIAZ; RICHARD DAVY; SCOTT HUNTER, in their individual and official capacities

No. 00-3084

United States Court of Appeals, Third Circuit

December 13, 2000

Argued October 5, 2000

On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Civil No. 97-cv-01410) District Judge: Honorable William L. Standish

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Michael L. Rosenfield, Esq. (Argued) 1808 Law & Finance Building Pittsburgh, PA 15219, John Stember, Esq. 429 Forbes Avenue Allegheny Building Pittsburgh, PA 15219 Counsel for Appellant

John G. Knorr, III, Esq. Calvin R. Koons, Esq. (Argued) Office of the Attorney General of Pennsylvania Strawberry Square 15th Floor Harrisburgh, PA 17120, Rodney M. Torbic, Esq. Office of the Attorney General of Pennsylvania 564 Forbes Avenue Manor Complex Pittsburgh, PA 15219 Counsel for Appellees

Before: NYGAARD, GREENBERG and COWEN, Circuit Judges


COWEN, Circuit Judge:

In previous criminal proceedings Eugene Hector successfully argued that several state troopers violated the Fourth Amendment when they seized over 80 pounds of hallucinogenic mushrooms from Hector's airplane in Dubois, Pennsylvania. Once the drugs were suppressed and the prosecution dismissed, Hector initiated this S 1983 action against the four appellants, Officers Gordon Watt, Alberto Diaz, Richard Davy, and Scott Hunter. The officers' request for qualified immunity has already been denied and the order affirmed. Hector v. Watt, 203 F.3d 817 (3d Cir. 1999) (unpublished table decision).

The narrow issue presented in this appeal is what type of damages Hector can obtain under the Fourth Amendment. Hector has abandoned any claim for damages from the search itself and instead seeks compensation solely for expenses he incurred during his criminal prosecution-- $3,500 in bail-bond expenses, $23,000 in attorney's fees, and $2,000 for travel between Pennsylvania and his home in California. The District Court held that Hector could not collect those litigation costs. We will affirm.


The Supreme Court has "repeatedly noted that 42 U.S.C. S 1983 creates a species of tort liability." Heck v. Humphrey, 512 U.S. 477, 483, 114 S.Ct. 2364, 2370 (1994) (quoting Memphis Community School Dist. v. Stachura, 477 U.S. 299, 305, 106 S.Ct. 2537, 2542 (1986) (internal quotation marks omitted)). Given this close relation between S 1983 and tort liability, the Supreme Court has said that the common law of torts, "defining the elements of damages and the prerequisites for their recovery, provide[s] the appropriate starting point for inquiry under S 1983 as well." Heck, 512 U.S. at 483, 114 S.Ct. at 2370 (quoting Carey v. Piphus, 435 U.S. 247, 257-58, 98 S.Ct. 1042, 1049 (1978)). The Supreme Court applied this rule in Heck to an inmate's S 1983 suit, which alleged that county prosecutors and a state police officer destroyed evidence, used an unlawful voice identification procedure, and engaged in other misconduct. In deciding whether the inmate could state a claim for those alleged violations, the Supreme Court asked what common-law cause of action was the closest to the inmate's claim and concluded that "malicious

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prosecution provides the closest analogy . . . because unlike the related cause of action for false arrest or imprisonment, it permits damages for confinement imposed pursuant to legal process." Heck, 512 U.S. at 484, 114 S.Ct. at 2371. Looking to the elements of malicious prosecution, the Court held that the inmate's claim could not proceed because one requirement of malicious prosecution is that the prior criminal proceedings must have terminated in the plaintiff 's favor, and the inmate in Heck had not successfully challenged his criminal conviction. Id.

Although Hector is not seeking damages for imprisonment following a conviction, as in Heck, he is still seeking to recover costs incurred while defending against a prosecution, relief that the common law made available exclusively under malicious prosecution. As the Supreme Court has explained, false arrest or imprisonment, the only other cause of action under the common law that could apply to a wrongful arrest and its consequences, provides damages "up until issuance of process or arraignment, but not more." Id. (quoting W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on the Law of Torts 888 (5th ed. 1984)).

Given the Supreme Court's mandate that we look to similar common-law causes of action, Hector appears to be on the horns of a dilemma. If his claim is categorized as being like false arrest, then his claim fails because false arrest does not permit damages incurred after an indictment, excluding all the damages he seeks. But if his claim is treated as resembling malicious prosecution, then he would face the problem that a plaintiff claiming malicious prosecution must be innocent of the crime charged in the underlying prosecution. "Even if the plaintiff in malicious prosecution can show that the defendant acted maliciously and without probable cause in instituting a prosecution, it is always open to the defendant to escape liability by showing in the malicious prosecution suit itself that the plaintiff was in fact guilty of the offense with which he was charged." Prosser and Keeton, supra, at 885 (citing Restatement of Torts S 657). This requirement can bar recovery even when the plaintiff was acquitted in the prior criminal proceedings, for a verdict of not guilty only establishes that there was not proof beyond a reasonable doubt. Id.

Hector may believe, plausibly enough, that his claim is really more like a simple claim of trespass. We agree that he has not in fact brought a claim for false arrest or malicious prosecution. And for that reason, we do not need to address the complexities of our jurisprudence on malicious prosecution under S 1983. Compare Torres v. McLaughlin, 163 F.3d 169 (3d Cir. 1998), cert. denied, 528 U.S. 1079, 120 S.Ct. 797 (2000) (rejecting a claim for malicious prosecution under the Fourth Amendment), with Gallo v. City of Philadelphia, 161 F.3d 217 (3d Cir. 1998) (reversing dismissal of a claim for malicious prosecution under the Fourth Amendment and holding that restrictions on a plaintiff 's liberty post-indictment constituted a seizure triggering Fourth Amendment rights). See also Albright v. Oliver, 510 U.S. 266, 272, 114 S.Ct. 807, 807 (1994) (rejecting claim for malicious prosecution based on substantive due process); Merkle v. Upper Dublin School Dist., 211 F.3d 782, 792-93 (3d Cir. 2000) (discussing Albright's impact on S 1983 claims for malicious prosecution). Other cases have evaluated various restrictions on malicious prosecution under S 1983. See, e.g., Wilson v. Russo, 212 F .3d 781 (3d Cir. 2000); Montgomery v. De Simone, 159 F.3d 120 (3d Cir. 1998); Sherwood v. Mulvihill, 113 F.3d 396 (3d Cir. 1997); Rose v. Bartle, 871 F.2d 331 (3d Cir. 1989).

If Hector's claim is treated like trespass, however, then he fails to identify any common-law authority approving of the damages he seeks. His difficulty in finding authority is easily explained, for the exclusionary rule was not part of the common law. Justice Story stated this point plainly:

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"In the ordinary administration of municipal law the right of using evidence does not depend, nor, as far as I have any recollection, has ever been supposed to depend upon the lawfulness or unlawfulness of the mode, by which it is obtained. . . . [T]he evidence is admissible on charges for the highest crimes, even though it may have been obtained by a trespass upon the person, or by other forcible and illegal means." United States v. La Jeune Eugenie, 26 F. Cas. 832, 843-44 (C.C.D. Mass. 1822). See also Akhil Reed Amar, The Constitution and Criminal Procedure 20-25 (1997) (reviewing historical evidence on the development of the exclusionary rule).

Pointedly, Amar's book adds that a "two-century tradition of civil damage actions in America" prohibited a plaintiff who was subjected to an illegal search from collecting damages for any prosecution, conviction, and incarceration resulting from the search. Id. at 27. The plaintiff was limited to damages for the search itself. Id.

But analogies to the common law are not all that guide our decision. We do not venerate, for example, the common law rule that "upon marriage, the wife's identity merged with that of her husband. . . . plac[ing] the wife under a number of disabilities." Prosser and Keeton, supra, at 901. In Heck the Supreme Court said that the common law of torts was the starting point, not the only consideration, in analyzing a claim under S 1983. Thus, in justifying the result in Heck, the Court explained that allowing prisoners to challenge their convictions through S 1983 would undermine settled law of habeas corpus. Cf. Montgomery, 159 F.3d at 124 ("In determining whether a certain common law concept governs a section 1983 action, the [Supreme] Court has been guided by the extent to which the common law rule is rooted in history and reason and whether the policies it serves are compatible with the purposes of section 1983."). Once we turn to these additional considerations, it is clear that Hector's claim must fail.

One pivotal consideration is that in Carey the Supreme Court stated that the damages available under S 1983 depend on the type of constitutional right asserted:

[T]he elements and prerequisites for recovery of damages appropriate to compensate injuries caused by the deprivation of one constitutional right are not necessarily appropriate to compensate injuries caused by the deprivation of another. As we have said, these issues must be considered with reference to the nature of the interests...

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