Whiting v. Traylor

• Decision Date: 19 June 1996
• Docket Number: No. 95-4268,95-4268
• Citation: 85 F.3d 581
• Parties: Glenn WHITING, Plaintiff-Appellant, v. Ed TRAYLOR; R.H. Hamilton, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 581

85 F.3d 581

Glenn WHITING, Plaintiff-Appellant, v. Ed TRAYLOR; R.H. Hamilton, Defendants-Appellees.

No. 95-4268.

United States Court of Appeals Eleventh Circuit.

June 19, 1996.

James Kellogg Green, West Palm Beach, FL, Terry E. Allbritton, Appellate Advocacy Program, Tulane Law School, New Orleans, LA, for appellant.

Robert W. Butterworth, FL Atty. Gen., Miami, FL, Douglas J. Glaid, Asst. Atty. Gen., Dept. of Legal Affairs, Civil Div., Hollywood, FL, for appellees.

Appeal from the United States District Court for the Southern District of Florida.

Before EDMONDSON and BIRCH, Circuit Judges, and FOREMAN ^*, Senior District Judge.

EDMONDSON, Circuit Judge:

Glenn Whiting appeals the Rule 12(b)(6) dismissal of his section 1983 claim against two Florida Marine Patrol Officers. He also appeals dismissal of a pendant state law tort claim. We vacate the dismissals and remand for further proceedings.

I.

In August 1988, Glenn Whiting--while he was operating his boat on a Florida lake--was stopped by two Florida Marine Patrol officers. The officers approached Whiting because they were unable to see registration decals on Whiting's boat. Whiting told the officers (defendants Ed Traylor and R.H. Hamilton) that he owned the boat and that he did not believe he was required to display registration numbers or a registration certificate. Whiting answered some of the questions asked of him by the officers, but he refused to tell the officers his name. For failing to display registration numbers, the officers seized Whiting's boat and told him he could have it back if he came to the Marine Patrol offices and proved he owned it.

Two months later, Traylor obtained an arrest warrant for Whiting on a charge of obstructing officers without violence. This charge was based on Whiting's failure to identify himself when he was stopped on the lake. ¹ Whiting voluntarily turned himself in during November 1988 after learning of the warrant. He was detained overnight and then released on bond; later, he was formally charged with Resisting an Officer Without Violence. In February 1989, he appeared for arraignment and pleaded not guilty. As he left the courtroom, he was again arrested by Traylor. This time, he was issued citations for various offenses related to the registration decal on his boat. During this arrest, Traylor allegedly abused Whiting and declined to inform Whiting of the charges against him. ²

The state's attorney brought misdemeanor charges based on the registration decal allegations. Whiting asserts that Traylor made false written statements on a citation and on an arrest affidavit. And, Whiting alleges Hamilton backdated documents for use in the prosecution. Whiting also says Traylor falsely alleged to his superiors that he was involved in criminal conspiracy, that Hamilton and Traylor caused public records to be falsified, that Hamilton backdated documents which formed the basis of the criminal prosecution and that Traylor and Hamilton kept or caused to be damaged or destroyed personal property seized from Whiting in August 1988. In the criminal proceedings, Whiting had to appear in court 20 times.

In May 1990 the state's attorney nol prossed some of the charges. Others were pursued by the state until a Florida state judge dismissed them. In the order of dismissal, the state judge found that Defendants and the prosecuting attorney had harassed Whiting either through gross incompetence or by intention. Whiting brought this action under 42 U.S.C. § 1983, alleging a prosecution without probable cause in violation of his Fourth Amendment rights. He also had pendant a state law malicious prosecution claim. The district court concluded that any Fourth Amendment claims based on Whiting's surrender or arrest were time barred. And, he concluded Whiting alleged no constitutional violation which occurred after these dates.

II.

Section 1983 is no source of substantive federal rights. Albright v. Oliver, 510 U.S. 266, ----, 114 S.Ct. 807, 811, 127 L.Ed.2d 114 (1994) (plurality opinion) (citing Baker v. McCollan, 443 U.S. 137, 144 n. 3, 99 S.Ct. 2689, 2694 n. 3, 61 L.Ed.2d 433 (1979)). Instead, to state a section 1983 claim, a plaintiff must point to a violation of a specific federal right. Id. (again citing Baker ). Whiting has done so here; he says the Defendants violated his Fourth Amendment rights (which the Supreme Court says protects, through the Fourteenth Amendment, persons from state action). The Fourth Amendment prohibits "unreasonable ... seizures" and also says that "no Warrants shall issue, but upon probable cause."

Whiting, however is not claiming just that he was seized unlawfully or that a warrant was issued without probable cause: he says he was "maliciously prosecuted" in violation of his Fourth Amendment rights. Defendants respond that no independent Fourth Amendment right exists to be free from a malicious prosecution. ³ Because the Fourth Amendment protects against "searches" and "seizures" (and not "prosecutions") Defendants' statement of the law about prosecutions is persuasive.

But, this proposition does not end our inquiry. Labeling--as Whiting did here--a section 1983 claim as one for a "malicious prosecution" can be a shorthand way of describing a kind of legitimate section 1983 claim: the kind of claim where the plaintiff, as part of the commencement of a criminal proceeding, has been unlawfully and forcibly restrained in violation of the Fourth Amendment and injuries, due to that seizure, follow as the prosecution goes ahead. ⁴ So, Whiting can avoid an order of dismissal if he based his claim--whatever he calls it--on some actual unlawful, forcible, restraint of his person.

Whiting's allegations point to three possibly unlawful seizures: his surrender following the issuance of the arrest warrant, his arrest as he left the courtroom, and his being required to appear to answer the charges after being released on bond. If these alleged acts are seizures and are unlawful, they--whether or not there is a federal "right" (even in the absence of some moment of physical restraint) not to be prosecuted in state court without probable cause--are the proper basis for a section 1983 claim.

Because Whiting relies chiefly on what has been called a "continuing seizure" theory, we will discuss this claim a little. Under this theory--which is explained most completely in Justice Ginsburg's concurring opinion in Albright--Whiting would have alleged a Fourth Amendment "seizure" because he alleged that, after his arrest, he was released on bond and obliged to appear to answer the charges against him. See Albright, 510 U.S. at ---- - ----, 114 S.Ct. at 814-17 (Ginsburg, J., concurring). But, Justice Ginsburg's opinion was not joined by other justices. And, the Seventh Circuit has recently (post-Albright ) reaffirmed its rejection of the theory. See Reed v. City of Chicago, 77 F.3d 1049, 1052 n. 3 (7th Cir.1996). We also have questions about the theory, but we do not need to reach a final decision about it today.

Whiting also points us to two other possible seizures--his arrest and his surrender after he learned of a warrant. ⁵ The district court appeared to agree--correctly, we think ⁶--that these kinds of physical restraints were seizures that could be the basis of a section 1983 claim; but, he concluded that claims based on these seizures would be time barred because the seizures occurred outside the four year limitation period.

The Supreme Court tells us that some section 1983 claims do not begin to accrue until well after the constitutional injury. See Heck v. Humphrey, --- U.S. ----, ----, 114 S.Ct. 2364, 2374, 129 L.Ed.2d 383 (1994). So, sometimes a section 1983 claim can be timely even though the claim is based on an unlawful act which occurred outside the limitations period. In determining when a section 1983 claim accrues (as well as the elements which must be pled to state a claim) we must seek help from the common law tort which is most analogous to the claim in the case before us. Id. at ----, 114 S.Ct. at 2367.

Here, Whiting says that Defendants applied for and obtained an arrest warrant and--based on the warrant--caused him to be unreasonably "seized" in 1988. He says also he was unlawfully arrested in February 1989. Obtaining an arrest warrant is one of the initial steps of a criminal prosecution. Under these circumstances (that is, where seizures are pursuant to legal process), we agree with those circuits that say the common law tort "most closely analogous" to this situation is that of malicious prosecution. ⁷ See Calero-Colon v. Betancourt-Lebron, 68 F.3d 1, 3 (1st Cir.1995) (section 1983 claim for arrest and prosecution analogous to malicious prosecution tort where arrest pursuant to legal process); see also Singer v. Fulton County Sheriff, 63 F.3d 110, 115-16 (2d Cir.1995) (same). ⁸ At common law, a plaintiff had no malicious prosecution claim until the underlying proceeding was terminated in his favor. ⁹

So, where a section 1983 plaintiff is seized following the institution of a prosecution (for example, after a warrant has been issued for arrest or after an information has been filed) and he seeks to recover damages for all the elements of the prosecution, he can properly wait until the prosecution terminates in his favor to bring his section 1983 claim which alleges that the seizure was unreasonable. See, e.g., Calero-Colon, 68 F.3d at 4; cf. Heck, --- U.S. at ----, 114 S.Ct. at 2371. The statute of limitations will not bar the action as long as the action is promptly brought when the prosecution has terminated.

In sum, a section 1983 plaintiff must always base his claim on the violation of a specific federal right. Where the right said to be violated is the Fourth Amendment, the plaintiff must establish a concrete violation of that right. When the seizure is part of the institution of a prosecution (that is, when the Fourth Amendment violation is of the kind making a ...