False Arrest v.

Malicious Prosecution
When does the statute of limitations begin to run?
Francos situation is similar to Andre Wallaces, who was arrested for murder in January 1994. He was tried and convicted, but the charges were ultimately dismissed in April 2002. Wallace v. Kato, 127 S. Ct. 1091 (2007). Wallace filed a Section 1983 suit against the City of Chicago alleging, among other claims, damages for his unlawful arrest. Id. at 1094. The District Court granted the City summary judgment and the Seventh Circuit Court of Appeals affirmed, ruling that Wallaces [Section] 1983 suit was time barred because his cause of action accrued at the time of his arrest and not when his conviction was later set aside. Id. (citing Wallace v. Chicago, 440 F.3d 421, 427 (2006)). The United States Supreme Court granted certiorari and addressed when the statute of limitations begins to run, as opposed to when the cause of action may accrue, on a Section 1983 claim for false arrest in violation of the Fourth Amendment. Section 1983 is a federal cause of action; however, federal law defers to the law of the state in which the cause of action arose to determine the statute of limitations for personal injury torts. Id. (citing Owens v. Okure, 488 U.S. 235, 249-50 (1989)). In Illinois, the statute of limitations for personal injury torts is two years. 735 ILCS 5/13-202 (West 2003). A Section 1983 cause of action accrues when the plaintiff can file suit and obtain relief. Id. at 1095 (citing Bay Area Laundry & Dry Cleaning Pension Trust Fund v. Ferbar Corp. of Cal., 522 U.S. 192, 201 (1997)). Wallace could have filed suit on the day of his alleged wrongful arrest which subjected him to involuntary detention. Therefore, the two-year statute of limitations began to run on that date. Id. The U.S. Supreme Court determined that the tort of false imprisonment provides the proper analogy to a false arrest claim because the unlawful detention is a detention without legal process. Id. Wallace was detained without legal process in January 1994 because there was no warrant for his arrest. Id. The limitations period begins to run for false imprisonment claims when the alleged false imprisonment ends. Id. at 1096. Therefore, the Court had to determine when Wallaces false imprisonment ended before determining the start of the limitations period. Id. Because false imprisonment consists of detention without legal process, a false imprisonment ends once the victim becomes held pursuant to lawful process (i.e., when he is bound over by a magistrate or arraigned on charges). Id. at 1096. Thereafter, any further unlawful detention comprises part of the damages for the entirely distinct tort of malicious prosecution, which remedies detention accompanied by wrongful institution (as opposed to absence) of legal process. Id. If there is a

Michael J. Meyer and William B. Oberts

Consider this hypothetical:

Joe Franco was arrested for murder by a local Illinois municipality, detained pursuant to court order, and held in custody for more than two years, until the charge was ultimately dismissed. He sued the municipality under 42 U.S.C. 1983 for false arrest in violation of his Fourth Amendment rights, and also asserted a state law claim for malicious prosecution. The municipality retains you as defense counsel. You must determine the applicable statute of limitations and the date on which the limitations period begins to run. This article analyzes when the statute of limitations period begins to run on a Section 1983 false arrest claim as compared to a state law malicious prosecution claim.

About the Authors

Michael J. Meyer is Managing Director of Tribler Orpett & Meyer, P.C. in Chicago. William B. Oberts is an associate in the firm. Both practice extensively in the area of municipal liability and defense of civil rights actions.

false arrest claim, damages for that claim cover the time of detention up until issuance of process or arraignment, but not more. From that point on, any damages recoverable must be based on a malicious prosecution claim and on the wrongful use of judicial process rather than detention itself. Id.

conviction or sentence that has not been so invalidated is not cognizable under 1983. Id. (citing Heck, 512 U.S. at 484).

The Heck ruling rested upon the premise that civil tort actions are not approWallace alleged that his priate vehicles for chalfalse imprisonment did not lenging the validity of False imprisonment end until the charges outstanding criminal Wallace also addressed application consists of detention against him were dismissed judgments. Id. (citing of a tolling provision. The statute of without legal process. and he was released from limitations for Wallaces false arrest Heck, 512 U.S. at 486). Therefore, a false custody. The U.S. Supreme The Wallace Court claim accrued on the date he was Court disagreed, determin- imprisonment ends once noted that the rule for held pursuant to legal process; howing that Wallaces false im- the victim becomes held deferred accrual applies ever, upon conviction, the Heck bar prisonment ended when he only when there exists prevented him from filing suit. pursuant to such process was held pursuant to legal a conviction or senTherefore, a tolling provision would process. The statute of limitence that has not been have tolled the statute of limitations tations began to run on Wallaces Secinvalidated, i.e., an outstanding crimiuntil his conviction was set aside. tion 1983 unlawful arrest claim on the nal judgment. Therefore, the rule only Id. at 1098. The U.S. Supreme Court date he appeared before the magisdelays the accrual date of a tort action declined to adopt a tolling provision trate and was bound over for trial. Id. until the setting aside of the criminal for the statute of limitations upon at 1097. Wallaces claim was time conviction which success in that tort conviction while the Heck bar exists. barred because more than two years action would impugn. Id. Id. at 1099. The Court held that the lapsed between that date and the filstatute of limitations on a Section ing of his suit. Id. Wallaces tort cause The Wallace Court applied the rule in 1983 claim seeking damages for of action accrued and the statute of false arrest in violation of the Heck, not to the date the cause of aclimitations began to run when the altion accrued (the date of arrest), but to Fourth Amendment, where the arleged wrongful act or omission resultthe date on which the statute of limitarest is followed by criminal proceeding in damages occurred, even though tions began to run (the ings, begins to the full extent of his injury/damages date Wallace became run at the time The U.S. Supreme Court held that the plaintiff bewas not known at that time. Id. held pursuant to legal the statute of limitations on a comes detained process). Id. at 1098. Section 1983 claim seeking damages pursuant to legal Wallace argued that Heck v. HumThere was no criminal phrey, 512 U.S. 477 (1994), supported conviction that a Sec- for false arrest in violation of the process. Id. at his claim that the statute of limitation 1983 cause of ac1100. Fourth Amendment, where the tions could not accrue until the state tion would impugn on arrest is followed by criminal dismissed the charges against him. In the date the statute of proceedings, begins to run at the Heck, the U.S. Supreme Court stated limitations began to Returning to our that: run. Id. In fact, it was time the plaintiff becomes detained hypothetical, the pursuant to legal process. speculative as to statute of limita[I]n order to recover damages whether there would tions for Joe for allegedly unconstitutional have been an indictFrancos Section conviction or imprisonment, ment, trial, or subsequent conviction at 1983 false arrest claim began to run or for other harm caused by when he was held pursuant to legal that time. Wallaces reliance on Heck actions whose unlawfulness invited the U.S. Supreme Court to esprocess. With that established, we would render a conviction or tablish a rule preventing the filing of can now turn to when the statute of sentence invalid, a 1983 any action which may impugn an anlimitations begins to run on his proplaintiff must prove that the ticipated future conviction until that spective state law claim for maliconviction or sentence has conviction is set aside. The U.S. Sucious prosecution. been reversed on direct appreme Court declined the invitation In Illinois, there is a one-year statpeal, expunged by executive and determined that such a rule would ute of limitations for a malicious order, declared invalid by be impracticable and speculative. Id. prosecution claim against a local state tribunal authorized to From a practical standpoint, any plainpublic entity. See Ferguson v. City of make such determination, or tiff may file a false arrest claim before Chicago, 213 Ill. 2d 94, 99, 820 called into question by a fedhe is convicted. Id. The district court N.E.2d 455, 459 (2004). See also 745 eral courts issuance of a writ has the authority to stay that civil acILCS 10/8-101. Unlike a Section of habeas corpus, 28 U.S.C. tion until the criminal case ends. Id. If 1983 false arrest claim, a cause of 2254. A claim for damages the plaintiff is ultimately convicted and action for malicious prosecution does bearing that relationship to a not accrue until the criminal proif the conviction would impugn the civil ceeding on which it is based has

action, Heck would then require dismissal; otherwise, the civil action will proceed absent another bar to suit. Id. at 1098 (citing Edwards v. Balisok, 520 U.S. 641, 649 (1997)). Practitioners often seek a stay of proceedings in civil rights cases while the underlying criminal case is pending to avoid duplicity of discovery and using discovery in one case for the benefit of the other.

been terminated in the plaintiffs favor. Id. at 459. Clearly, if a person is found not guilty of the charges, it is easy to determine the date upon which the criminal proceeding is terminated in plaintiffs favor. However, it is not always that cut and dry. Often, the states attorney may choose to either strike the charge with leave to reinstate (SOL) or nolle prosequi the charge. The two procedures are distinct as to how and when the criminal proceeding is considered terminated.

made. Only after the expiration of that period may the underlying criminal proceedings be deemed terminated. Id. at 461-62. Defense counsel must be mindful that merely because a charge is either stricken with leave to reinstate or nolle prosequi does not automatically mean that the charge was terminated in plaintiffs favor. The reasons behind such action must be explored to determine this fact. However, the termination of the proceedings is the trigger as to when the statute of limitations begins to run.

Striking charges with leave to reinstate does not terminate the proceeding against the accused. Id. at 459 (citing You can now advise your municipality People v. Bryant, 409 Ill. 467, 470, 100 that you will seek to dismiss Francos N.E.2d 598, 600 (1951)). A case which has been stricken Section 1983 with leave to reinfalse arrest state remains . . . the statute of limitations on a malicious claim and his pending. The statstate malicious prosecution claim in which the charge is ute of limitations prosecution nolle prosequi begins to run upon entry of claim as time for filing the unsaid order because that is the date the derlying criminal barred. Of criminal proceedings are terminated. A charge is tolled course, the charge that was stricken with leave to while the statutory statute of limireinstate does not accrue on that day because tations is just speedy trial period the criminal proceedings were not continues to run as one potential long as the defen- terminated. Instead, a malicious prosecution defense to the dant demands claim does not accrue until the expiration of aforementioned claims. Defense trial. Id. at 460. the statutory speedy-trial period after a counsel must See also People v. speedy-trial demand is requested. East-West Univ., also consider other defenses, Inc., 265 Ill. App. such as quali3d 557, 567, 637 N.E.2d 594, 601 (1st Dist. 1994). By fied immunity and various provisions of the Local Government and Governcontrast, [a] nolle prosequi is a formal mental Employee Tort Immunity Act. entry of record whereby the prosecuting attorney declares that he is unwilling to prosecute a case. Id. at 460 (citing People v. Daniels, 187 Ill. 2d 301, 312, 718 N.E.2d 149, 157 (1999)). A nolle prosequi terminates the charge and requires the institution of a new and separate proceeding to prosecute the defendant. See People v. Sanders, 86 Ill. App. 3d 457, 469, 407 N.E.2d 951, 959 (1st Dist. 1980). Accordingly, the statute of limitations for a malicious prosecution claim based upon charges that were nolle prosequi begins to run upon entry of the order. Charges that are stricken with leave to reinstate do not automatically trigger the start of the limitations period because the criminal proceedings are not terminated. Instead, a malicious prosecution claim does not accrue until the expiration of the statutory speedy-trial period after a speedy-trial demand is