other commercial technology firms located in innovation ecosystems across the united states and help us more quickly adopt technologies that can help our troops accomplish their missions. diux opened its doors last august with a west coast office in silicon valley. and since then, we iterated and launched diux 2.0 in may and opened a diux east coast office in boston and established an outpost in austin, texas. one important area where diux recently solicited proposals was in microsatellites and advanced analytics. leveraging the revolution in commercial space and machine learning to transform how we use space-based tools and advanced data processing to provide critical situational awareness to forces around the world, and also have added resilience, by the way, to our national space architecture. meanwhile, under the guidance of the strategic capabilities office or s.c.o.w., we're

changing and adapting how we use platforms and technologies already in our inventory, giving them new roles and game-changing capabilities to confound potential opponents. as some of you know, i created s.c.o.w. in 2012 when i was deputy secretary of defense. putting will roper, by the way, in charge of it. i lifted the veil on several of its projects that we're investing in, such as the arsenal plane, the new anti-ship capability for the sm-6 missile, and swarming drones on the sea and in the air. in fact this technology took a large step forward just this week. you'll be hearing more about that in the months to come. a prominent theme of s.c.o.w.'s work is spearheading creative and unexpected new ways to use our existing missiles and advanced munitions across varied domains. one example i want to highlight, something that we haven't talked about publicly before today, is

s.c.o.w.'s project to develop a cross-domain capability for the army tactical missile system. by integrating an existing seeker onto the front of the missile, they're enabling it to hit moving targets both at sea as well as on land. with this capability, what was previously an army surface to surface missile system can project power from coastal patients up to 300 kilometers into the maritime domain. going forward, as these and other investments yield new weapons systems and war fighting capabilities in the coming years, some of them much sooner than you might think, they'll need to be demonstrated so they're effective in deterring future conflict. it will be important to ensure they're allowed to run their course. we have to protect the most promising and integrate those concepts and ideas into our

programs, rather than let them be uprooted because because they're new, which is always a tendency in tight budgets. of course, how we use technology is just as important as the tech itself, if not more, which is why we're also investing aggressively in operational innovation. our plans and operations must account not only for the evolving challenges we face from our competitors but also the opportunities afforded by new capabilities as they come online. so technological and operational innovation must go hand in glove. here the tragic imperative is rooted in the fact that while we spent the last 15 years innovating expertly, and i'm very proud of it, in how we kill terrorists and counterinsurgencies, we did so to some extent at the expense of our expertise in full spectrum war fighting. other nations have gotten good at that over the years. and in some cases they've been

devising new methods to try to counter our advantages and preempt us from being able to respond, not just by developing high tech weapons, but also by crafting operational approaches such as hybrid warfare techniques. for these reasons we've been reinvigorating our training across the services to return to full spectrum readiness. and we've been rethinking how we operate to find new advantages against potential adversaries, including by changing and adapting how we fight with friends and allies. for example, in europe we've been working with our nato allies to adapt and write a new playbook for a strong and balanced strategic approach to russia, one that takes the lessons of history and leverages our alliance's strengths and new networked ways to counterour challenges in cyber and new hybrid warfare, to integrate conventional and nuclear deterrents, and to adjust our posture and presence so we can be more agile and responsive.

in the asia-pacific, we've been modernizing our alliances, strengthening partnerships and helping to build a principled and inclusive regional security network. this rubber meets the road in how we're revising our actual plans for potential operations themselves. we're always updating our plans and developing new operational concepts to account for any changes in potential adversary threats and capabilities. but we've also updated our core contingency plans to make sure they apply innovation to our operational approaches, including ways to overcome emerging threats such as cyber attacks, any satellite weapons and any access area denial systems. and at the same time we innovate in our plans to counterer these conventional threats, we're also ensuring that with respect to potential confrontations with nuclear powers, we continue to sustain america's nuclear

deterrent as we recapitalize our nuclear triad and infrastructure. overall, we're building in modularity that gives our chain of command's senior decisionmakers a greater varieties of choices. we make sure planners take into account how to prevail if they have to execute their plan at the same time another contingency is taking place so they don't fall into the trap of presuming the one they're planning for would be the only thing we would be doing in the world at that time. we're injecting agility and flexibility into our processes because the world, its challenges, and our potential opponents are not monolithic. we have to be dynamic to stay ahead of them. and we're prioritizing trans-regional and trans-functional integration in our plans, which is imperative to make sure the conflict doesn't segment anymore. the challenges we face today are less likely than before to

confine themselves to neat regional our functional boundaries. this is one of the goldwater-nichols reforms i suggested. it would be coordinated by our chairman of the joint chief of staff, who we're fortunate to have in this job. recommending him to president obama was one of the best decisions i made as secretary of defense. the result of this is that we've revised all of our war plans to ensure that we have the agile at this agility to win the wars of today and in the future. i can't say more, and if any audience can appreciate why, a csis audience can, i'll tell you why i'm proud of this evolving family of plans. innovation and technology and operations are necessary for us. but they're not sufficient.

because at the pace today's world demands, we can only succeed in these by being an agile organization that nurtures innovation in all its forms. so we're also investing in innovative organizational structures and practices. the strategic imperative here is that dod must be an organization that better fosters innovatie i thinking and ideas that can help us stay ahead of our competitors. the defense department is one of the largest organizations in the world. and as many of you know well, we can be pretty bureaucratic and slow moving. it's easy to default to the status quo of continuing to do things the same way we've always done them. but we can't afford that in today's security environment. we need to be a place where thinking differently is welcomed and fostered. not where good ideas go to die just because they happen to be new. over the last few years i've created a number of entities to

signify and drive the defense digital service. i most recently created the defense innovation board to advise me and future leadership on how we can keep growing more competitive. as you know, the defense innovation board is one of several advisory boards that report to me, each with a distinctive mission and membership chosen for a distinctive kind of expertise. the defense science board of which i was long a member is comprised of scientists and technologies with deep expertise in weapons systems and defense r&d. the defense policy board on which i also served and which by the way we're grateful that john chairs, has a membership with exceptional foreign and defense policy making experience. the defense business board, to name another, has members who

understand dod's vast business enterprise and practices. defense innovation board has a different membership and a different role. its members were chosen for their record offin' ovation outside of the defense department. and for their ability to suggest innovative approaches that have worked in their leadership experience and that might be applicable to us. the innovation board is chaired by google alphabet's eric schmidt, and its membership represents a cross-section of america's most innovative industries, organizations, and people, people like amazon's jeff bezos, linkedin's reed hoffman, code for america's jennifer palkam, mike mcquaid from united technologies, and retired admiral bill mac raven,

now chancellor of the university of texas. i've charged them to help keep dod imbued with the culture of innovation. the people in our defense enterprise were willing to try new things, fail fast, and innovate, and to make sure we're always doing everything we can to stay ahead of our competitors. at the outset i gave them the very specific task of identifying innovative private sector practices that might be of use to us in dod. along the lines of our hack the pentagon pilot program, which invited hackers to help us find vulnerabilities in our networks and report them to us, similar to the bug bounties that several of america's major companies already routinely conduct, while this approach to crowdsourcing super security is fairly widespread in the private sector, our use of it in the pentagon was the first time in the entire federal government. and it was so successful, we're

now expanding it to other parts of dod. this is the perfect example of the kind of recommendations i am looking for from thin' e innova board, things that are out there and that might be useful to us. now, of course not everything the private sector will make sense for us, because we're always mindful that the military is not a company. it's dedicated to the profession of arms. for important reasons, we're not always going to be able to do everything the same way others do. that doesn't mean we can't look at ourselves in the mirror and look around the country for new ideas and lessons we can learn, ways we can operate more effectively. the defense innovation board held its first public meeting earlier this month and made some preliminary recommendations to me and the public about some innovative practices that might make sense for us to adopt. today i want to tell you about several i have decided we're going to do. first we're going to increase our focus on recruiting talented

computer science and software engineers in our force, both military and civilian, through targeted recruiting initiatives ranging from our reserve officer training score to our civilian scholarship for service program. it's intended to help build the next generation of dod science and technology leaders. all with a goal of making computer science a core competency of the department. second, we'll invest more broadly in machine learning, through targeted challenges and prize competitions, and not through a new brick and mortar institution but rather through a virtual center of excellence model that establishes stretch goals and incentivizes academic and private sectors to achieve them. since this is an area where academy and commercial technology companies have made strides, i've asked duix to pilot this approach by sponsoring an initial prize challenge focused on computer vision and machine learning.

and third, we're going to create a dod chief innovation officer who will act as a senior adviser to the secretary of defense and will serve as a spearhead for innovation activities, including but not limited to those suggested by the defense innovation board such as building software platforms and human networks to enable workforce innovation across dod at scale, sponsoringin' he vegas contests and tournaments, and providing training and education that promotes new ideas and approaches to collaboration, creative and critical thinking. many different organizations have recently embraced this position, and also started to regularly run these kind of innovation tournaments and competitions, including tech companies like ibm, intel, and google. it's time we did as well, to help incentivize our people to come up with innovative ideas and approaches and be recognized for them. going forward, i'm confident the

logic behind everything i'm talking about today will be self-evident to future defense leadership, as will the value of these efforts. but they also need to have the momentum and institutional foundation to keep going under their own steam as they continue to thrive. we must ensure that we keep leading the way and keep disrupting, challenging, and inspiring all of us to change for the better. and this brings me finally to how we're innovating in terms of our people and in the talent management of our all volunteer force. while it is the last area i'm going to discuss today, it is the most important. indeed much more than our technology operations and organization, our people are the

key to have best fighting force. we need to compete for good people as far into the future as we can. now the good news is there are lots of opportunity here as well as new techniques and technologies and talent management such as the kind of advanced data analytics that underpin companies like linkedin, but there are also challenges that we face in terms of the limitations of our current technology in the human resources area. and as generations and labor markets change, even so -- so even as our force today is outstanding, we must ensure that we continue to attract and retain the most talented young men and women that america has to offer in future generations of defense. and that's why we've been taking step after step to build what i call the force of the future. i've announced four different

links so far to the force of the future. the first focused on building and increasing onramps and offramps for technical talent to know in both correctidirections. this will let more of america's brightest minds contribute to our mission of national defense even if only for a time or for a project. and it will also allow more of dod and the defense industry's of military and technologists to engage in new ways with our country's larger innovative e ecosystem, especially the parts that have hesitations about working with defense. next, the force of the future's second link focused on increasing retention through our ranks through increased support

to our military families. it's often said when you recruit a service member you retain a family. after all it's no secret that military life is difficult and can be especially tough on our military families. and let me remind you that our force is largely a married one with 70% of our officers and 50% of enlisted who are married. and we can't change the fundamentals of military service, but we can make some changes to make life easier for our married people and increase the possibility that they'll want to stay at that critical moment when they're trying to reconcile military life and

force mix they need, especially at a time when we're speaking to promote a wider range of experience, perspective, and training to strengthen the overall effectiveness of the force. that's why we want to give the military services the authority to do things like expand lateral entry for more specialties and adjust lineal numbers based on superior performance. and most recently link number four to the force of the future this is not only about our military, but also about our civilian workforce. when people talk about dod civilians, you're talking about over 700,000 talented americas serving across the country and around the world. more than 85% of them live

outside of the d.c. area. they fix aircraft. they operate shipyards and ranges and more. they do critical jobs, and without them, dod wouldn't function. the goal here is the same as with our military personnel. to make sure our civilian workforce is just as great as the one we have today. by creating a new two-way civilian talent exchange program with the private sector, by expanding our scholarship for service program in mathematics fields and more. also in addition to each of these links, over the last year we opened up all combat positions to women and lifted dod's ban on transgender service members so that we can now draw on 100% of america's population

for our all volunteer force, focusing purely on a person's willingness and ability to serve our country and contribute to our mission and giving everyone the full and equal opportunity to do so. going forward, there will still much more work to do and you'll soon be hearing from me more about the force of the future, but these links span the spectrum of our opportunities, our challenges, and the lifetime member of our all volunteer force, recruitment, retention, development, transition, and also our valuable civilian workforce. and for the first time in a long time, dod's personnel and readiness office has a real proactive agenda, a concrete action plan to guide its efforts so they're doing more than just being reactive belatedly to issues that crop up. and based on support for these efforts that i'm seeing in the military services and across our

department, i'm confident that the implementation of all these initiatives will continue moving forward and ensure that the force of the future is as great as the force of today. i've described today a lot of ways the department of defense is changing and will continue to change in the future, but i want to close by reminding all of you, all of dod, and all of america that as we sit here this morning our country's strengths are undeniable. we have the best people. but there's much more than that. our economy is growing. we have world-class schools and universities. we uphold the right values, which is one reason why we have an unrivalled network of friends and allies. meanwhile the operational experience of our force hard

earned is second to none. and we have the greatest innovative culture on the planet. and we've brought that innovative culture to bear in service of others, that is to defend our country and help make a better world for our children. it's long been america's hope and military secret and we remain dedicated to doing so and it can be so. we have a legacy of innovating, but that in and of itself is not enough. that's why we're moving aggre aggressively toward a more innovative future, why everything i've talked about today is intended to ensure exactly that. going forward, our success will depend on whether we can keep it up. like its predecessors the next wave of innovation will be a generational success. that's only the beginning. we probably don't even know yet the names of the people who will

make it a reality. instead it will be the generation that comes after. it will be junior officers and dod civilians fresh out of graduate school. some of them here today perhaps who decide to spend a year outside of the department at google or somewhere else, work with an expert in data science or engineering. then choose to do a tour of duty in the digital defense service. it will be the enlisted soldiers who come up with new operational concepts for overcoming potential adversaries using the advanced technologies that may not even exist yet or defeat a terrorist group that we haven't heard of. they're the ones. they're the ones who will end up reinventing and change anew how we will determine, fight, and

win wars in the future. our job is to give them the foundation, the right kind of pentagon to help them succeed, one more agile and more innovative than ever before. as long as we do, they will ensure like those who came before them that our military remains the finest fighting force the world has ever known. thank you. [ applause ] >> thank you. thank you. won't you grab a seat? first of all, my apologies. a lot of you have been standing for almost two hours, so we'll get this done with quick. the secretary has to leave. but those of you have been staying, you'll get to the coffee first. secretary, thank you. thank you for your remarkable service. this has been a very challenging time, and we're so lucky to have

you there. we have very little time, but let me ask first i remember after 9/11 companies all over america came to town. we want to help. we'll do anything. how can we help? many of them left pretty disappointed. why have we failed as a government to bring on board interesting ideas from the private sector? >> well, it's a good question, and the answer is to many of them we seem slow. we seem ponderous. we seem bureaucratic. that's not as true as it seems to them, but the reality is we have to reach their way. this has to be a two-way -- that's why i'm so intent upon this outreach to technology industry. snowden made it worse, and so we have to build a relationship, build a familiarity, build with trust. a lot of these people have no experience with us, john. they didn't serve.

nobody in their family served. there's no uncle, father, coach, mom, guidance counselor, no one in their lives who told them about the feeling that it gives you to be part of the noblest mission a young person can devote themselves to. and these people want to make a difference. they're innovative and they're talented. they want to make a difference. and when they can match our mission to that personal aspiration of their's, that's where the magic is made. when i started my own life, i was a physcist. i found that i actually could make a contribution because there i was in a room -- i happened to know what i knew.

i didn't know about defense as a whole, but i knew what i knew. i could see without that piece the right decision wouldn't have been made or the program wouldn't have moved forward. secondly, i had the great thrill going home every night knowing had been part of something bigger than myself and making this small part of this majestic mission. taking those two things, you can make a difference and it is a huge thing to make a difference in, that's magic for any young person. the more americans we can get to feel that magic that don't have it in their personal background, the better. that allows us to tap into all this. we need to reach their way. >> when ceos come to town and meet with you, obviously there's a mutual respect and a desire to have impact and a real commitment, but then they bump up against the acquisition system, they bump up against the

bureaucracy. >> they do indeed. >> how do we get at that problem? because it seems to me we're making people work with us on our terms. >> no, that's exactly right. we've got to work systematically to lower those barriers to entry so that the people who win business aren't only the people to help play the game. they're the best people, and that's on us. it is the taxpayers' money. we'll never make decisions quite like people who are spending their own money or company money. it is the taxpayers' money and the taxpayer expects everything to be done to their standards and they deserve that. at the same time, that's not an excuse for doing everything in this ponderous kind of way. so i have to give it to our leadership here. we have worked very systematically looking at our problems, repetitiveness of decision, volume of paperwork,

willingness to take risk, all these things that are fundamental to being innovative and finding ways that we can reduce that. the way you do that is you start out -- you know, for example, we have a new contracting vehicle that we have spearheaded through diux, which allows us to disperse rnd funds much more agilely in smaller amounts. it's possible. if you hide behind the legendary far -- that's not an excuse. far in general has lots of workarounds in it and we can ask for more workarounds. i'm asking our people be creative -- and i don't to hear from innovators they thought they could make magic and they ran into that. that's one of the reasons i'm just driving on us and all of us are driving us to put our heads

out of our fox hole and look around. how do other people do that? and there's a lot. >> if i might, we've had companies that are asked to design a product, use their own technology, then the government says we're going to test that for two years. then we're going to take you data and compete it. >> this is the intellectual property. >> yes. >> you're right. people want protection for their intellectual property. what we want is not to own their intellectual property, but what we do want is to keep a competitive door open for the future. of course, one of the ways you use intellectual property -- and i don't blame anybody for that -- is to lock yourself in as vendor. that's not good for us in the

long run. we're trying to balance our need to keep competition going wave after wave and the innovator's right not to have stuff stolen and sold around. when i started out, i think we worked very good at it. frank kendall has been working hard ever since. bob helps him. and it's doable. it's doable. they have the same problem when they're selling to other people as well. other people don't want to get locked in either. so the more you can have open systems where they can continue to keep the ip on the part that they plug in, but the system is open enough that others can plug their own ip in, we can have our cake and eat it too. it is just a matter of being smart about it. >> i'm being mindful because your staff is saying they're

going to shoot me if i keep you much longer. you want to bring in talent from the private sector. i do too. i think it would be great. yet, it is hard for us with our opm rules, our civil service rules, to bring in talent that can work for the government. what can we do here? >> i described today one of the things i did in the last few months and this is a key one. i didn't have time to spin it out, so let me answer your question by giving you this example and that is to do direct hiring off college campusescamp. you talk to kids and they say i wanted to try. i wanted to apply for a government job. i went to the website and applied. final exam time came and nothing came back. my parents said you have to get a job. don't come home. i took the job from somebody who could offer me a job, which

wasn't as meaningful as the one i wanted from the defense department. i was six months into the job up pops an e-mail from the government saying you can do a job interview. that doesn't work for a kid, today's kids especially because they don't want to live life where a career is an escalator where you get on the bottom stair and you wait and it takes you up to the top. they want a jungle gym where they can get higher by climbing around. and we need to be part of that. we need to recognize that's the way many people see their lives, so they need to be able to see us in that context. opm to the contrary notwithstanding, we can't use that as an excuse. i mean, come on. work around it. where we need to change the law,

i proposed a number of changes in the law, and i think our committees are receptive to change. we're trying to give them the right ideas so they can write them into law, but there's a lot we can do. you just don't take no for an answer, and you can't expect this kid to put up with it. we have to change the way it's done. >> we're at the hour. i have to let the secretary go. i happen to know from talking to the deputy secretary he has to brief you for a meeting coming up. things fall through the cracks. i think it's up to all of us to sustain momentum on this innovation agenda. this is really the purpose of this conference. we cannot afford to let this agenda slack off. secretary, i want to thank you for your leadership. >> thank you. >> thank you for the deputy secretary's leadership.

>> thanks csis. [ applause ] c-span, where history unfolds daily. in 1979, c-span was created as a public service by america's cable television companies and is brought to you today by your cable or satellite provider. last month the supreme court heard oral argument in manuel v.

city of joliet, the case about the right to sue police officers for an alleged false arrest under what is referred to as a malicious prosecution. this is about an hour. >> we'll hear argument next, manuel versus the city of joliet. mr. eisenhammer. >> mr. chief justice and may it please the court. i would like to make three initial points. first, what this case is about is whether the petitioner may bring a fourth amendment claim for unlawful detention pursuant to legal process. second, this case is not about whether the decision to prosecute is governed by due process, the fourth amendment, or any other amendment. third, this case is not about whether there is some constitutional tort named malicious prosecution.

all we ask the court to do is to affirm your numerous suggestions made in albright that the fourth amendment supports this cause of action and bring the seventh circuit in line with all other ten circuits. >> well, you need to get past the statute of limitations problem. and to do that, you need to characterize it, as i understand it, a malicious prosecution claim. otherwise, it is time-barred. >> what i need -- what we need to do is determine, not the statute of limitations, which is two years, set by the state but the accrual period and in wallace, the court has said that you normally look to not the state law, but it's a federal question that you normally look in reference to the common law. in wallace, they did say that that would be malicious

prosecution that does have as an accrual period favorable termination. >> favorable termination has nothing to do with the fourth amendment claim, right? whether you are prosecution is favorably terminated or not, the fourth amendment claim, and it seems to me the accrual begins when your fourth amendment rights are violated with, say, an illegal search. whether you are eventually convicted or acquitted, really, you have a claim for an illegal search if there has been an illegal search without regard to favorable termination. >> our claim technically here is detention without probable cause, not the search that occurred when he was arrested. >> right. regardless, whatever the fourth amendment claim is. >> right. and at detention went through for 48 days after he became subject to legal process. >> was he subject to proper legal process?

if legal process is corrupted, because there isn't -- i always understood legal process as used in wallace and other of our cases is an independent intermediary, generally a judge or a grand jury or someone. who looks at the facts as they exist and independently makes a determination whether probable cause has happened. if you have a corrupted legal process, where what the independent adjudicator is looking at is not true, because it is based on false information, have you received legal process, proper legal process? >> you haven't received proper legal process. you're correct. it's been corrupted. >> so i thought if you've never received it, then doesn't your

time to accrue for the improper detention accrue when you are no longer detained? here, it was the not guilty, correct? >> correct. >> so it's not a question of whether when it starts. the question is, when does the illegal detention finish. >> correct, correct. >> because there's been no intermediate force, no intermediary stepping in and breaking the chain of causation, correct? >> correct. >> am i understanding your argument correctly? >> yes, you are, perfectly. i wish i could take credit for that. >> the only way i could think of it was thinking of it in this way. you are not claiming malicious

prosecution. >> right, right. wallace talked about malicious prosecution. this is the larger issue of 1983 jurisdiction, which is, what is the proper accrual period for a constitutional violation? we don't -- we're not -- >> detention without probable cause. >> right. you are not straight jacketed into a particular common law provision. you have the right to fashion one that does justice. this is the one who does justice. >> i was confused. i thought there was a malicious prosecution claim here. mostly because the question presented says, whether an individual's fourth amendment right to be free from unreasonable seizure continues beyond legal process so as to allow a malicious prosecution claim based upon the fourth amendment. >> yes, but that's just a label. that's what the court at least in wallace has used as a label for talking about these type of

claims. it's just a label in a sense to distinguish this case from detention without legal process. >> let me give you a hypothetical that is close to this case. officer fabricates evidence in order to arrest and book the defendant. then, there is a gerstein hearing within 48 hours. evidence is still fabricated, same fabricated evidence is introduced. he is held for three months. then there is a pre-trial suppression hearing. fabricated, and he is still held for two more months. then there is a trial. evidence is fabricated and he is convicted and held for six more months and then there is an appeal filed. suddenly, they find out the evidence is fabricated and evidence is dismissed. the fourth amendment is still a problem?

>> we would say the fourth amendment claim ends at conviction and then the due process claim or whatever. >> why is the trial on conviction any different than the gerstein hearing? they are both a legal process. there is an inquiry. why is it that the fourth amendment applies after the gerstein hearing but not after the conviction? >> one reason is that the gerstein hearing is a nonadversarial hearing. it would be a grand jury proceeding. a conviction in a sense presumes that you were held with probable cause, and then you really have a due process claim after that. >> 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 pre-trial suppression? >> i believe so.

>> so then at least there's a legal recognition that there can be a malicious prosecution claim in the gerstein hearing? >> no. it's a fourth amendment claim. we're not raising -- >> i am asking under tort law generally, you can bring a malicious prosecution claim if there is fabricated evidence produced at the gerstein hearing that results in your detention? >> in your release? >> no, results in your detention. that's why there is damage and you are suing? >> right, right, but there has to be a favorable determination in order for to you -- it is an element of state court malicious prosecution. >> it is terminated six weeks later. >> that would be a malicious prosecution under state law.

>> why do you make the cutoff conviction if it turns out even on habeous that the police lied all along and there was never any basis for holding this person? why don't you have your fourth amendment claim until the point where your released from this unlawful custody? >> you could if you ruled that way. generally, this court has ruled that after conviction there is due process. your trial rights have been violated. so that has been a different amendment that you've gone on. >> it's the same right. it is the right you had from the very beginning. >> it could be a fourth amendment right. you could have more than one amendment cover more than one

same set of facts. >> but there's just a different consequence on whether you term it a fourth amendment right or a due process right under parrot against taylor. >> we are claiming it is a fourth amendment right. >> well, you just answered in response to the question that, well, it could be both. >> it could be both, 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, to detain somebody, depending a decision to prosecute or trial, so it's the fourth amendment that really covers this rather than due process. >> what happens to the person who is let out on bail? are they out of luck under your theory? >> no. >> are you defining detention as

justice ginsburg was? >> yes. and in gerstein, the court did make recognition 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. >> can you explain why even if we accept your theory that the unlawful detention continues until he is released? why shouldn't the statute of limitations trigger when he is initially arrested?

why should the trigger for the statute of limitations be different just because we label this fourth amendment? >> i think there were some good reasons for that. they were expressed in heck, which applies in this particular case too. you don't want to have parallel litigation. you don't want to have conflicting decisions between the state and a criminal court, and you don't want to have a collateral attack. that collateral attack works to the detriment of the prosecution and the defense in the case. i think justice kagan's opinion in cali 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 criminal case is pending. it works to the detriment of the prosecution. >> mr. eisenhammer, why should we even get to these questions?

as i understand this, the seventh circuit says or does something no other circuit does, which is to say there is no fourth amendment claim under section 1983 at all, full stop. if we think that that is wrong, ought we just send everything back to the seventh circuit to decide what they that i the fourth amendment claim looks like? what elements it has, what accrual date it has, anything they think about this fourth amendment claim, send it back to them, having told them that they are wrong about whether this fourth amendment claim exists. 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 principle question has been whether there is a fourth amendment claim. why shouldn't we just send it back to them to decide? >> i would be in agreement with that.

>> you would be in agreement with that? i wasn't sure. i thought you were arguing. >> i only responded to the question. i think the question we have raised is solely does the fourth amendment cover detentions pursuant to legal process? >> don't we have to know -- i'm sorry. >> without legal process. >> with legal process. >> you are saying it is improper legal process. >> yes, but it is still a legal process. it was corrupted but it was still started with that. >> don't we have to know what type of a claim it is before we can say whether it exists? >> yes, and the starting point is the fourth amendment. if you answer the question on the fourth amendment -- because the initial question -- >> so you want us to say there's some kind of fourth amendment claim. we don't know what it is, but there is some kind of a claim. then you go back and tell us what kind of a claim it is? >> i am saying, the court can say this is a fourth amendment claim. >> to claim for unconstitutional detention.

what the statute of limitations is on that claim or what the accrual period is on that claim is something we don't have to decide in order to say, yes, you have a claim under the constitution for improper detention. >> correct. >> the alternative is it is a due process claim. whether or not they coexist or the particular period you are claiming about is properly characterized as detention without due process as opposed to a claim under the fourth amendment would certainly be pertinent in deciding whether or not to say there is a fourth amendment claim. >> i think you can decide whether there is a fourth amendment claim or due process without referencing the statute of limitations. that issue is in a sense before you. you can answer it. we're not talking about -- as i

said before, we're not claiming that the decision to prosecute, which might be a due process claim, has been violated. all we are talking about is the detention subject to legal or corrupt legal process. that's the only claim we are asking for. the court has indicated -- >> if the detention you have described this in various ways, is it a detention without constitutional probable cause? is it a detention with no proper legal process? where exactly is the fourth amendment violation? because in false arrest and false imprisonment claims, according to wallace, as soon as you get legal process there's been an intervening to the false imprisonment because someone else has imprisoned you, so what remains in this case? how do we define the

constitutional violation? >> we reserve time after just for some more questions. this is a fourth amendment claim that you can claim prolonged it beginning at legal process where rodriguez, the traffic stop was extended just for seven minutes to do a dog search, and this court found it was a seizure and an improper seizure. this is exactly what happened here. the seizure was extended improperly because of the fabrication by the police. >> thank you, counsel.

>> mr. chief justice and may it please the court, we think this court should locate the constitutional right at issue in the fourth amendment for the reason that it does apply to pre-trial detentions as this court has long held. the fourth amendment requires any prolonged period of detention to be supported by one valid determination of probable cause at the outset of that period of detention. the seventh circuit error here was to find that the fourth amendment stops operation once criminal charges are filed. this court has long recognized as well that there is a variety of ways to make that probable cause determination, including by the same procedure used to bring the criminal charge itself. >> suppose it is a close question about probable cause, no fabricated evidence, just was the information available to the police sufficient to make the arrest. the court wrongly determines

that there was probable cause, and he is held for six weeks. fourth amendment violation? >> it may be a fourth amendment violation but there may be no one to sue under knows circumstances. >> if it was close, then the decision was reasonable. >> of course, your honor. i think i took justice kennedy's hypothetical to presume it was wrong, in the sense of wrong and unreasonable. >> i know it is wrong but reasonable. >> well, then, no, your honor, i don't think it would be a fourth amendment violation. >> why? he is being detained. a violation of the fourth amendment. that's why it seems to me there's a good argument we should be talking about malicious prosecution, not the fourth amendment. >> your honor, i think that the fourth amendment does afford reasonable mistakes of fact and law for that matter in allowing someone to be detained. it's not that -- in fact, the probable cause standard itself allows for factual errors in the determination. here, the allegation that mr. manuel claims is that he was

detained on drug charges that relied entirely on fabricated evidence. we think that is a claim without probable cause under the fourth amendment. >> it is unreasonable. the defendant wouldn't have qualified immunity. it is not corrupt. there is nothing malicious about it. would there be a claim? >> your honor, i think it depends on what the causation would be in terms of the officer's role in bringing the church. if the officer puts forth and is the one pressing to bring a charge that is not reasonable, objectively unreasonable under the fourth amendment, subject to qualified immunity and other bars to sue he may be liable. to the extent to which the error falls with the magistrate or the prosecutor, those kind of claims would be foreclosed by the absolute immunity that those individuals have. >> what if it is an fbi agent? >> well, your honor, i think the bivens liability if a

federal officer follows the same sort of immunity and rules. >> i thought you said in your brief that the standard for state and local law enforcement officers might be different for the standard for federal law enforcement officers. >> if you could clarify which you mean is it the standard for qualified immunity or -- >> page 30 of your brief, 30 to 31 of your brief. >> your honor, in those particular instances, that piece of our brief relates to special factors that could cancel a bivens claim that don't necessarily apply to section

19 -- >> that's what i'm saying. you think that there should be a remedy for violations by state and local police officers but not under identical circumstances if it is a federal officer. >> not in this instance, your honor. we wouldn't draw that distinction. >> what were you saying in your brief? i don't understand it. >> i think there may be other circumstances not presented by this case, a case of fabricated evidence or unreasonable pursuit of a wrongful criminal charge that may lead to a different result under 1983, under bivens. we just wanted to make sure the court understood that the bivens claim may have different ramifications. >> that's right. i may be missing something. i thought this was a quite simple case. a policeman makes an unreasonable stop and an unreasonable search thereby violating the fourth amendment. now you can sue him assuming you have overcome other hurdles. now, he takes you off and puts you in prison, either with a magistrate or without a magistrate. you are therefore being unreasonably detained. it's an unreasonable seizure pursuant to the fourth amendment. therefore it's a violation.

then you have a trial. and using this same rotten evidence, you're convicted. there you don't, though you could, but the reason that you don't is because you are viewed as, by the law so far, being in jail now as a result of your conviction. the reason i guess is practical. we don't want to look into all those convictions and their different standards. now, that's what the framework is in my mind. is it right? >> absolutely, your honor. that is exactly the framework that the government puts forward. it is not just the mere fact of being held in jail, but the constitutional right depends on what process was infringed. >> all right. so let's stop. i understand you so far. the question presented was, i think -- i don't have -- i do have it here is whether an

individual's fourth amendment rights be free from unusual search and seizure continues beyond legal process to allow a malicious prosecution claim based upon the fourth amendment. the chief justice was right, the question presented is, does the fourth amendment have a malicious prosecution claim, which is something very different than what you are describing as a fourth amendment seizure and detention without legal process? >> that's correct, your honor. because in our view, the constitutional inquiry is step one, but step two is to determine the elements and accrual date and other prerequisites to sue under section 1983 tort. the accrual may be governed by the closest common law analogy when the challenge at its core is arguing that the wrongful prosecution and the wrongful institution process led to the detention without probable cause, in our view the closest analogy is a malicious

prosecution suit. >> are you suggesting we have to take every element of whatever the elements are, because from what i understand from the briefing, malicious prosecution is defined differently from state to state. so if that's the case, what are the elements that you see for a 1983 claim? does it include malice? >> your honor, we do nothink that a constitutional tort under 1983 simply adopts common law or state tort elements of malicious prosecution. only the accrual rule is based on this court's decision and wallace are taken up by the common law analogy. in terms of malice, no, your honor, we don't think malice, as it is known as common law in most state courts, is an element of this kind of claim. we do advocate that this court treat a probable cause determination underlying a criminal charge the same way it treats a probable cause determination underlying a search warrant, which includes the frank standard. we don't think of that as a malice standard of common law

but rather an extension of the franks doctrine. >> i know we have said inspired examples we take to flush this out. it does seem to me to be pretty result oriented cherry picking. let's see, here is a claim. we would like the statute of limitations part. we take that in. i don't know if we are still holding true to the approach in wallace if you just start picking things in and out, depending upon the demands of the particular case. >> well, your honor, i think that wallace did say that federal accrual rules in particular were governed about the common law analogy. we think that is as far as it goes in terms of choosing from the common law. the statute of limitations, for example, is barred from state law. here, the seventh circuit's view of accrual is from its error as the scope of the fourth amendment. to justice kagan's proposal, it

goes back. we think this goes back. the seventh circuit aired berre holding that since the fourth amendment stops at the time criminal process begins, it thought you can't have a malicious prosecution analogous claim, because there is no such fourth amendment claim. if you peel that error away, even under 7th circuit jurisprudence, they would agree a favorable termination requirement would apply under such circumstances. >> when does the fourth amendment claim stop? i think you said if you are convicted, it stops. in response to my question, suppose none of this comes out until habeas. we find out the police have lied from day one. >> so, your honor, we do see those as distinct phases and that when you are held, an individual is held pursuant, before trial pursuant to a

finding of probable cause by a magistrate or once they are held beyond a reasonable doubt, that due process and other constitutional rights take over. >> suppose it is a pre-trial suppression hearing in which both parties are represented and the court reaches a wrong results with reference to the admission of the evidence. does the fourth amendment violation still continue? >> your honor, i think it may be a fourth amendment violation. whether a plaintiff could bring those kind of claims would be governed by preclusion principles once that issue had been litigated in a state court. >> in a state court proceeding, the state had allowed, what would be the rule of accrual ending? you get convicted. you don't find out about the false system until habeas, state or federal. when in that situation would accrual occur? >> in our view, when the case was dismissed or overturned, your honor. >> thank you, counsel.

>> mr. scodro? >> mr. chief justice and may it please the court. i think it is very important to frame what is before the court this afternoon. to begin, i think it's essential to note that we are not disputing at any point in this litigation that misstatements made that result in a finding of probable cause at a gerstein hearing is a fourth amendment violation, nor does the 7th circuit disagree. the reason it came up to the 7th circuit as it did and this may be important in understanding the context. this is on a motion to dismiss for violation of the statute of limitations. all of the claims were dismissed but one, one that was appealed. and that one survived moment ed momentarily in the district court because that petitioner

claimed that that one claim has a favorable determination element because it is malicious prosecution. he reiterated that claim before the 7th circuit and the 7th circuit reached two conclusions, one, you have a fourth amendment claim, which they discussed. the only claim before them was based on the lie at the gerstein hearing. you have a fourth amendment claim. it is already accrued. it accrued too early. it is untimely. now, you are asking us to recognize a different breed of fourth amendment claim, namely a malicious prosecution fourth amendment claim, because you would like to overcome the time bar. we do not recognize that fourth amendment malicious prosecution. >> mr. scodro, i read this differently. you can tell me why i am wrong. in the last column of the 7th circuit's opinion, there is twice where the 7th circuit says what it thi thinks. the first time, it says, when after the arrest or prosecution, a person is not let go when he should be. it is after the initial seizure and then the person is not let

go. the fourth amendment gives way to the due process clause as a basis for challenging his detention. in the last paragraph, it says, once detention by reason of arrest turns into detention by reason of arraignment, the fourth amendment falls out of the picture. it seems to me that twice the 7th circuit says very clearly that you have this fourth amendment claim until arraignment or legal process. after that, the fourth amendment falls out of the picture. at the very basic level, before you get into these questions of what's the accrual date or anything else, it seems that that is the thing that the petitioner is saying is wrong, that the fourth amendment claim continues after arraignment or legal process. whether it accrues or when it doesn't is a different question. it is still a fourth amendment claim. that's what the 7th circuit rejected. >> your honor, i think i would direct the court to the top of ja 103 as well, where the court also notes the fact that they have found fourth amendment

claims, even in terms of false information in an instant report, even at a preliminary hearing, which comes long after the initiation of process. what the court in context has read -- by the way, this is consistent with past statements by the 7th circuit. the fundamental statement the court has made, and this comes from newsome, the 2001 decision from which this jurisprudence has blossomed in the 7th circuit. relabeling a fourth amendment claim as malicious prosecution would not extend the statute of limitations. this has been the nature of the battle. on page 21 of the petition, in this case the petitioner makes clear why the question presented doesn't end halfway through. it doesn't ask merely whether there is a fourth amendment right that survives the initiation of process. if by process, they mean gerstein hearing, we agree. i think the 7th circuit would agree as well.

it goes on to say so as to allow for a malicious prosecution claim and on page 21 of their cerp petition, they explain what they mean by that. the fate of this appeal to this court turns on whether the court does or does not adopt favorable termination. that's why this makes an ideal vehicle to answer justice alito's earlier question, what are the elements of this claim. >> i didn't think that was a difficult question. i thought everyone agrees that if a policeman wrongly arrests you, maliciously arrests you, et cetera, there you are in his custody and he brings you over to the jail, puts you in the jail, up until the point you see the magistrate, you have a claim for false arrest. >> correct. >> we said that that claim for false arrest is a constitutional claim. it violates the fourth amendment. what time limit applies? >> the false arrest time limit. that's the most analogous. now, we get into the next stage. now, you are in front of a magistrate.

the magistrate says stay in jail for two more months. does that violate the fourth amendment? not malicious prosecution. the reason we tend to think it does is because all the circuits have said it does. judge higgenbottom said it in the 5th circuit. a lot of circuits pick it up. that too violates the fourth amendment. now, we have a problem. what statute of limitation do we use for that one? and there the circuit seemed to have picked malicious prosecution not because they're going to follow every element, but because it's the state law that provides the closest analogy, and that seems to me where we are in this case. we don't have to go much further than that. am i right so far? >> you are correct. the issue before the court is which accrual date for limitations periods should the courts apply. >> you will accept or will you accept for purposes of this argument that once this individual is brought by the

policeman to jail and they go before a magistrate and the magistrate using the same bad evidence says, stay here in jail for a while, for a week anyway, until we get to trial, that that period is a violation of the fourth amendment, assuming that they were all lying, et cetera? >> your honor, yes. >> okay. then the question is, do we use the malicious prosecution as an analogy, not all the elements. now the question, great, fabulous, i get to the narrow questions i have. why isn't it a good analogy? >> your honor, let me answer why it is not a good analogy and i'll also answer and flesh out just why this remains. the moment in time when the

police officers lie to submit an affidavit with falsehoods to a magistrate and the magistrate finds probable cause, what we do not dispute is that that is a violation of the fourth amendment. the question of whether or not malicious prosecution is the proper analogy, wallace tells us why not. a reliance on common law determination. which is what most of the circuits on their side of the split has done. this goes to your honor's question and point. most of the circuits have used favorable termination. they have done so by adopting it as part of the underlying four element common law tort. they think if that's what we are calling it, then it's going to have favorable termination. a smaller number have relied on a drastic extension of this court's decision in hack. that's the request now made by the petitioner in the reply brief. that heck ought to be expanded to apply here, but wallace was very clear that heck only

applies, the delayed accrual principle applies only where you have an extant conviction and that doesn't exist here. the court went through a mental exercise. they said, look, if you can realize that you have a fourth amendment claim before you are convicted, if the elements can be in mind, you know you've been wronged in a fourth amendment way before you're convicted, then that is not a claim that is entitled to the delayed accrual principle of heck. the reason was very simple. as this court said in gerstein, fourth amendment contemplates that you can have bad arrests and good convictions and nevertheless the fourth amendment protects the innocent as well as the guilty and expanding heck to apply to a circumstance where all you have is an ex parte requirement or finding of probable cause, requiring that civil plaintiff

to then prove vindication at the end of the day would close the door on a potential universe of fourth amendment another wrong is they kept you in detention. they extended that arrest. so i don't see why you have one wrong which ends on arrest. if you are continuing to be held based on trumped up, false information, why isn't that like a continuing tort? it continues until it ends. >> well, your honor, just to make sure that i've been clear, again, we do agree that the lie, the second lie your honor has described, the lie before the magistrate, is actionable under the fourth amendment.

if the question is, why then doesn't the accrual period run from when one is ultimately released, i would make a couple of points in response to your honor's question. first, petitioner has been very careful not to make that argument. the continuing seizure idea would be inconsistent with the sur-petition which claims they need the benefit of favorable termination to prevail. they wouldn't need it if they were instead arguing for a period of a continuing seizure. lower courts have rejected the notion of a continuing seizure and they are not raising it here. i think the reason may be twofold. the first is that it runs in the face of traditional accrual principles that this court has said cases like ricks and others, it's not the period of harm that matters for accrual

purposes. it's one when first experiences the harm and thereby has all the element needed to proceed. in a case like morgan, a hostile work case, it is the exception that proves the rule. inmany ways it tells us how or why narrowly the court has construed the exceptions. hostile work environment describe what is your honor prescribes. it is impossible to know when the hostile work environment begins. is it the second or fifth or 10th that someone has to endure in the workplace. therefore, the court is willing to consider it as a monolithic whole and treat it that way for accrual purposes. that's the exception that proves the rule. there can be a cutoff, which wallace imposed between the initial arrest and the post process arrest. and wallace itself in that regard breaks through the notion of a continuing seizure. the final point i would make, and i think this comes out in

one of amicus briefs, taken to its logical conclusion, the logic of continuing seizure may lead one to conclude that the seizure doesn't end until the ultimate period of incarceration concludes. what that means is that now you have potential civil plaintiffs bringing claims 10, 15, 20 years down the road without any prior notice to the would-be defendants, no ability to maintain evidence and so forth. >> you need to give evidence to somebody who is fabricated the reasons why you are in jail? i don't know why you would think that it is important to cut off recovery against a police officer who bases an arrest solely on fabrication. it doesn't seem so horrible to me. years later or immediately, you've done something as untoward and united states

unconstitutional as that, why should it matter? >> your honor, two points. the first is, this is a point of clarification. we are not suggesting that damages arising from lies at a gerstein hearing, for lack of a better term for it, would not run subject to traditional common law approximate causation principles through part or all of the pre-trial period. there may well be interrupting events. that, i just want to make clear, we are not suggesting that those damages may not be available in this case, had the claim been brought timely for the full 48 days depending on how those common law principles would check out. the other point that the state made in their ameamicus brief i wallace. they have made the point that early notice to the state of employer of agents engaged in bad acts is extraordinarily important. government is intent upon learning sooner rather than

later that they have individuals in their ranks that are violating the constitution. this court in wallace, in turning aside basically the same extension of heck as it recommended for the court or the court is invited to take in in very case, when they turned it away, they said, one of the reasons is that we need notice to the would-be defendants in those cases. they can preserve evidence to ensure that there is. >> counselor, it is not as if most states don't receive that kind of notice in these situations. the defendants are just not believed in those situations until some independent evidence is discovered long after the conviction. in my experience, and you can point to one that's different, i've never come across any of these cases where any defendant falsely accused of a crime hasn't vigorously announced his

or her innocence and vigorously tried to tell the authorities this police officer is corrupt. so i'm not -- i don't know what extra notice you need other than that. the situation is unique. we are talking about total fabrication. you have so many other ways out of liability. qualified immunity, franks. there are so many other protections against the state and individual officers for errors. why should we worry about you not receiving notice? >> the reason is in this case, the later accrual principle that petitioner requests under heck or as a matter of a common law element is purchased not only at

the price of delayed notice for to would-be defendant. it's purchased at the price of closeing the courthouse door on a number of potential fourth amendment claimants. those who are subject to unlawful arrests but are later validly convicted. >> mr. scodro, can i ask -- i might be misunderstanding this. so you will tell me if i am. it seems as though the position you're taking now is diametrically opposed to the position you took in the seventh circuit. i'll just read you something. this is from oral argument. but my clerk tells me that this is what happened. i think that there is not a transcript but maybe there is but at least this is what my clerk tells me happened at oral argument. judge rovner tells me there are ten other circuits that have recognized this kind of claim, this kind of fourth amendment claim.

she said, let's just assume that we do what those ten other circuits have done. which they didn't do. let's just assume it. at what point would you think the statute of limitations would begin to run? then you, or maybe not you, but you -- you say, well, if you were to recognize such a claim, the accrual is the time at which the proceedings are terminated in favor of that individual. so in this case it would be, i think, the date would have been may 4, 2011. and then chief judge woods says, so you are assuming that the constitutional tort would follow the same pattern that state law does and require the favorable termination because if there is no favorable termination for all the policy reasons, the states have considered there is no injury. again, whoever the lawyer was said that's correct. so am i misunderstanding this or are you saying that's not correct, that's wrong?

>> i think that that is correct insofar as what the lawyer was being asked as i understand it having also listened to the argument, your honor -- >> is there no transcript? >> part of that appears in the reply brief. what that quote makes clear, it seem to me, what the lawyer is being asked is if we are to follow suit, again, taking it back to what was -- this was on a motion to dismiss on limitations grounds. if they're not able to establish that they have an accrued claim or a claim with a delayed accrual sufficient to satisfy the limitations period under a traditional fourth amendment theory, can we overcome this by virtue of common law elements. what the attorney was being asked, as i heard that argument, what the attorney was asked is

do you agree that what they're trying to do here is join what every other circuit has done? if we join what every other circuit has done, theywould have a favorable tuermination element. >> maybe, where guess. it seems to me the much more natural way of understanding this is to say, look, if we do what every other circuit has done in the sense that we acknowledge that there is a fourth amendment claim here post legal process, something which you yourself have now acknowledged today, that if we acknowledge that, what would the accrual date be? and then the lawyer says, the accrual date would be the date of termination. and now you're saying it wouldn't be. and i actually don't know whether it should be or it shouldn't be. i don't think the seventh circuit for a moment considered that question. and i guess it's another reason why i think we should just send the whole thing back. the seventh circuit can figure

out whether you forfeited this claim. the seventh circuit can figure out if you didn't forfeit this claim, what the right answer is. but to me, this language, and i have not listened to the tape myself, so i have to admit that, but to me, this language suggests that you forfeited this. >> yeah, your honor, as again, in context, i think what the lawyer was being asked is, if they get the benefit, and i believe the quote in the reply in support of the part of the quote that appears in the reply in support of the sur-petition includes, along with the common law elements, the lawyer is saying, yes, if they were to get the benefit -- this is what they're trying to do. no one denied it. what nay were saying in their briefs was we want the bftd ene of the four-element tort recognized in other circuits. they seem to cite heck in lieu of the common law element.

and the question was, if we give them what they're asking for, that is, if this court follows those other courts, would they have a may 4th, crewaccrual dat and the answer is yes. >> the magistrate listening to the policeman detained him and the magistrate and everybody was very unreasonable, dah, dah, dah. now he's there, day one. can he bring a case? yes. why not? day two, yes. and he's being held for 90 days and i can say the same thing, i won't, up to each of the 90 days. 9th day, he's released. now it's 91st day. can he bring it? yes, but now we only have two years. why only two careyears? because we're looking for an analogous statute of the state to give us a limit. the analogous one, though not perfectly fitting, is malicious

prosecution. that had two years. that's why two years after the release date is the longest, you better bring it before then because that two years since you are unlawfully held. now, what's wrong with what i just said? >> well, your honor, two points in response to that. the first would be, wallace says or holds that if you have the claim on day one, then that -- it's accruing on day one. we're not going to give you -- there's no -- >> it's a different claim. one claim is for arrest. and the other is for prolonged detension. two different claims. that's why i took issue with you when you said if you hold for this petitioner, then people who are falsely arrested but properly convicted will have no claim. i don't see that. they have a false arrest claim. they don't have a prolong eed

detension claim. >> i think what would happen, they wouldn't have a claim based on misstatements at the gerstein hearings if in order to make out the claim, they would have to show that ultimately, their criminal litigation terminated in their favor. that's the request. if heck is extended or the common law element is extended and this is why it's not the best analog, your honor. if it would be helpful to have a common lapoint of guidance on this, we provide a list of common law cases and example of common law cases in which the court addressed a question like this. we have an exparty protoing tt i'll take the stewart case, which is the third of the three cited. the person serves six months in jail on the warrant, but there's never a prosecution, never blocked him. he is released and sues for

malicious prosecution. the defendant in the malicious prosecution contends that they're not -- that they're unable to show successful outsome. >> what's the best analogy? >> this form of malicious outcome where you didn't have to prove favorable termination because all that was againsts you was an ex parte -- >> in your opinion, what is the state law that does apply, the best analogy. >> the closest is false arrest. >> false arrest. okay, so now what is the statue of limitations for false arrest? >> the state law, still the personal injury limitation of two years. >> okay, so he was being detained for up to the 90th day. he's still being detained. now we'll count the 90th day of the two year running. now we run it for two years and it's stay may 12th or whatever.

>> but a false claim under wallace begins once due process begins. >> why not? isn't he being held unlawfully on the 41st day? and after all, we're not copying the state law. all we're doing is trying to find an analogous period of time. >> but your honor, by imposing the favorable termination element of the common law claim, it would run head long into the fourth amendment aim. what the fourth amendment is geared to vindicate. the fourth amendment this court has held is there for the guilty and innocent alike. in this case, the cost of borrowing that favorable termination element and importing it into a claim based solely on lies in an ex parte hearing, which is what we're talking about, doing so would mean if you're the victim of lies in the gerstiein hearing ad you're convicted as evidence

amasses against you, the need to show favorable termination, it will be impossible for that plaintiff. the fourth amendment right will not be something that plaintiff can vindicate. that's the reason wallace didn't allow heck to expand to instances like this where you're not challenging the wrongful conviction itself. and what they have asked, their claim is narrow, and the way to resolve this is now equally narrow. the way to resolve the case is to conclude that whenever your fourth amendment claim could run through the arraignment after indictment in the case, which was still out of the two-year limitations period, but it's not entitled to that favorable termination element which would have the effect of closing off the courthouse doors to universal claims in order to bye extra time in this case. and that is what we urge the court not to do.

>> if you're falsely arresting, you have a claim for false arrest. it doesn't matter that you were properly convicted. but if you're not only falsely arrested but if your detention continues, then you have a claim for detention. >> for violation of the gersteen hearing, your honor, and i want to be clear in saying the closest analogous tort is false arrest. that is treating it the way i think the seventh circuit has, which is that it runs up until what we call the first appearance, where you have the initiation of adversarial process. by no means does the limitations period or is there a tolling that runs from the period of the lie of the gerstein period.

that's the common law principles of proximate cause, and there may well be damages recoverable for that period, but it's based on the lie at the hearing, and as wallace held, heck cannot be extended to apply to a claim that exists before you have a conviction. >> just one more time. suppose you have arrest, g gerstein hearing, filing of charges, pretrial suppression hearing at which both parties are represented, and the false evidence is not -- its falsity is not known so you're detained, and then trial. when does the fourth amendment violation end? >> sure, this returns to justice ginsburg's point. you have a claim for the warrantless arrest. a fourth amendment claim for misstatements at a gerstein

hearing that led to ongoing pretrial seizure, and the damages from that claim may run throughout the period of pretrial seizure, but with regard to the nature of the constitutional violation that occurs at subsequent processes, be they grand jury, bail hearings, preliminary hearings. those are traditional due process claims. consistent with this court's holding in moony, frankly in brady, which is applied due process to prosecutorial duties and police duties during that period. i hope that answer your honor's question. whether or not those damages run throughout that period or whether they're reduced by virtue of an intervening kausz would be an application of approximate cause. >> opposing counsel or defendant's counsel ever present in the gerstein hearing? >> generally, in this case, yes. often, they are because the

gerstein determination is frequently made as part of the first appearance, which is the moment in tinal which this court is held you have a sixth amendment right attaches. may i complete the answer? >> i'm sorry. >> may i complete the answer? >> you have more? go ahead. >> thank you. thank you. so i want to return to the point i was making. i apologize. i don't know if i have answered your honor's -- >> you were talking about the gerstein hearing is often combined. >> the reason this court has contemplated that. it's off a matter of convenience that at that point, it's when the individual is informed of the charges. their sixth amendment right attaches and bail is set as well. >> thank you. >> thank you, counsel. >> thank you. >> mr. he's eisenhammer, you ha thirty-two minutes remaining. >> just answer justice kennedy's question about reasonable error

on a detention. in that situation, the officer would have the qualified immunity defense that would assuming it was objectively reasonable, he would be protected. in that situation. with respect for the seventh circuit decision -- >> but there's still a fourth amendment violation? >> there's still a violation, but he would have qualified immunity if he asked with objective reasonableness. because it's -- the fourth amendment doesn't have any intent. you either violate it or not violate it. probable cause or not, and then you can superimpose qualified immunity. the seventh circuit would have said that there is no fourth amendment right, whether or not the petitioner filed his claim three years, four years, a million years ago, or the day after he was released.

that's their position. so that's why we're here on the question whether this is a fourth amendment violation. we reject the seventh circuit's view that it's due process. >> so you don't care that we don't reach the statute of limitations? >> correct. but i do want to note that the seventh circuit with respect to the statute of limitations of the accrual point uses favorable termination in their due process case. >> what happens in this situation? the person is initially arrested and held for a period of time based on fabricated evidence. but then before trial, shortly before trial, other valid evidence is gathered. and the person is convicted at the trial. now, does that person have the kind of claim that you are asserting, and if so, when would the claim accrue? would the favorable termination

defeat the claim? >> the favorable -- he would at that point, if you use heck as the case that covers this particular issue, he would not -- since he was convicted, under heck, he would not be able to bring the claim if that claim attacks the conviction. if it doesn't attack the conviction, as the court sort of pointed out, i think it was footnote seven on suppression hearings or on evidence. >> i'll say the unlawful detention. not the conviction. not the conviction. >> then i will say under heck, the heck exception, they could bring suit. >> when would the claim accrue? >> i think it would accrue at that point. at the conviction. as i read heck. because i think it would be -- it would be, in this particular case, it would be unfair to the

individual to speculate on whether what evidence comes out at the trial will determine whether or not that really -- that probable cause determination may or may not attack the -- >> it's the outcome of the trial is irrelevant to the fourth amendment claim, as it would seem to be in the case of an unlawful detention, then why should the claim not -- why should the accrual of the claim be tied to the determination of the prosecution? >> because -- at the time it has occurred, well, two reasons. you don't know at that time whether or not it does attack the conviction. second, you don't want -- because you don't know whether that evidence heard at the gerstein hearing may or may not, some of it may come in. some of it may not.

and then the other issue is that you don't want parallel litigation going on or collateral attacks for many of the reasons that was stated. >> thank you, counsel. case is submitted. we have a special web page at c-span.org to help you follow the supreme court. go to c-span.org and select supreme court near the right-hand top of the page. once on our supreme court page, you'll see four of the most recent oral arguments heard by the court this term, and click on the view all link to see all of the oral arguments covered by c-span, in addition, you can find recent appearances by many of the supreme court justices or watch justices in their own words, including one-on-one interviews in the past few months with justices kagan, thomas, and ginsburg. there's also a calendar for this term, a list of all current justices with links to quickly see all of their appearances on c-span, as well as many other

supreme court videos available on demand. follow the supreme court at c-span.org. the mayors of washington, d.c. and oklahoma city talk now about the importance of funding infrastructure projects at the local level. bloomberg government hosted this event. >> well, if i could have everybody's attention back again. thank you so much for showing up. it's great to see this many people show up for an infrastructure event. any time, but particularly at this time, as we're getting ready to make lots of decisions, we hope, on this subject. i'm marsha hale of building america's future, and we're so happy to co-sponsor this with bloomberg government. they have been a great partner for us. on many events, and we hope to do that.

i'm going to ask a few questions and i would really like for the audience to get into this, so if you'll start thinking about what you might want to ask our panel of great people who know a lot about this subject, and we'll come to you in a little while. obviously, this discussion needs to go forward in the context of the rather earth shaking election that we had last week. both candidates talked about improving infrastructure, and the president-elect since having been elected has also talked about it. so i think our challenge is to find the way to go forward and to find common ground. it's one of the subjects i think can provide some common ground. and i think we on the stage will do our best to try to help that. and hopefully come up with some great ideas today. i think what we need to do is

figure out what our priorities are. what role technology will play. and where we're going to find the money to do it. so we would like to discuss some of that today. on a side note, governor rendell had to cancel this morning because he's lost his voice almost completely. i think that's symbolic of something, but i'm not quite sure what. but trust me, he will be out there. once his voice comes back, he will continue to be very vocal on this subject because it's something he has cared about ever since he was mayor of philadelphia oh, so many years ago. we will have him back for another program at some point. so with that, i would like to start, first, introduce our panel. first of all, we have mayor mick cornett from oklahoma city, republican mayor of oklahoma city, but he's also the president of the u.s. conference

of mayors, an organization near and dear to my heart. mayor muriel bowser of the district of columbia. most of us are your constituents or almost your constituents, so we're very excited about hearing what you have to say today. damon silvers, who is director of policy and special counsel at the afl-cio, and ed mortner, executive director of the transportation and infrastructure at the u.s. chamber of commerce. as you can see, we have a very good bipartisan split here today. and we would really like to have a real conversation. this is, we hope, going to be a big issue. now, mayor cornett, let me go to you first. as president of the u.s. mayors conferences, mayor, can you talk about what the conference's priorities are and the mayors' priorities are going forward. what do you need, what's worked? >> first, our infrastructure

needs are pretty broad. it's not only our nation's highways but the streets that our citizens drive on every day. it is the water infrastructure that they rely on. it's the bridges that have some level of significant repair. you know, rather than go into some of the predictable things that you generally hear mayors say about infrastructure, let me give you an anecdote or two that i think might help you understand the story and the problem that's out there. we have a large interstate that goes right through the heart of oklahoma city. we have three, actually, but the one i'm going to refer to is interstate 40. goes from california to north carolina. as it goes through oklahoma city, it was designed as an elevated highway for four and a half miles. it was a bridge as it went through the downtown portion of our city. 1970s, traffic increases. 1980s, traffic increases. along about 1990, the department of transportation realizes that was a flaw, needs to be brought

to grade, so they try to figure out what to do about this situation of a major artery with a bridge that is not as stable as it needed to be. and so they come up with the idea of relocating the interstate highway just a few blocks to the south and then replacing that corridor where interstate 40 had been with an at-grade boulevard so the street gains a street out of it. i was a city hall television reporter covering the city council meeting as the council determined the route for the new interstate 40 alignment. well, fast forward, in 2012, i cut the ribbon for that 4 1/2-mile stretch that had finally been relocated some 14 years later. and that at-grade boulevard is under construction now. and unless i run for a fifth term, someone else will cut the ribbon for that.

one other issue on the funding side. in 2007, we went to our citizens to pass a bond issue, which is in oklahoma, how we pay for road reconstruction and improvements and build police stations and other civic needs. we estimated to the voters that by 2014, we would be holding a new bond issue. this was expected to be seven years in length. well, soon after that, our state legislature passed a law that artificially suppressed the increase of property prices, of taxation values. and the long story short is we're going to be holding that bond issue at election next summer. three years after it was originally scheduled. so that is a quantifiable three years of deferred maintenance in one city that has been allowed to exist. and our streets are suffering from it, our citizens are upset about it. and they don't really understand, they expect someone else to take care of these projects. so going forward, mayors looking

for a federal government who will invest in r & d. we have to have technological improvements. we have to get more for less. occasionally, we get more on some advancement, but usually it's more for more. the cost never seems to go down. we've got to find public/private partnerships that make sense for all involved. and we have to make sure that the tax exempt status stays in place in our municipal bonds. you cannot say you're for infrastructure as a politician but you want to remove that tax exempt status from local governments who rely on it to inch out every dollar we can to put projects to work. >> thank you. mayor bowser, as many of us are your constituents, can you talk to us a little about what are the priorities for the district when it comes to infrastructure? where you think your greatest gains and what your greatest challenges are and what impact

this new administration may have on the city. >> sure. i think for us it's really simple. our most important infrastructure initiative, projects, funding priority, is metro. for our region, for the district, for washington, d.c., we're about 670,000 people. we're going to grow to 100,000 people in the very near future. our region, d.c., maryland, and virginia, are 4 million. one of the fastest growing metropolitan areas in the country. and we have a metro system that needs a lot of tender loving care, and it needs serious thought about how we change its future from a safety, reliability, and a funding source. and the federal government has a unique opportunity to be a partner in that change for metro. we carry, the metro system carries the federal workforce

from the suburbs of maryland and virginia and all over washington, d.c. to jobs all across this region. so i think we have an opportunity to work with a new administration and a new congress on the federal government really being involved and paying its fair share of how we make the nation, really, when you're washington, d.c., i didn't even talk about the millions of people who come to the nation's capitol from around the country and around the world. and making sure we have a world-class metro system. has to be, i think, a common ground that we can find with the new administration. >> that's so important. metro when i first moved here was just such a spectacular way to get around town. and we just need to really bring that back. >> i didn't talk to you about specifically all the things that we in particular in washington, d.c. are focused on. frequently, when people come to our city, they comment on how well things are doing, how many

cranes they see in the air, how we're accommodating the people who are moving here. we have been very focused on making sure that we're economically conservative in many ways, and that is why our economy is really, really booming in washington. and i link that to two critical investments. making sure we're investing in our schools to transform them. making sure we're investing in our neighborhoods so we have great libraries and parks and that they're safer. and that is -- that continues to be our focus. but if i see a threat along the horizon for the robustness of our economy, it is that our infrastructure can keep up with our growth. and we're ready. the signal i will tell the new president and the new congress is our chief financial officer just completed an analysis of our infrastructure needs.

so we know what we need for maintenance. we know what we need in new buildings. we know what we need the federal government to do. we know what we're going to be able to do with public/private partnership. so for the right deal, i know people are looking for some big league deals. we will be ready to have those conversations in the district. >> that's great. and that hit the point i think is so important to make, is that as a country, we probably need a ten-year plan. we need a vision of exactly what the mayor just talked about, which is what do we need across the country? not just in transportation, but what we need in water and the energy grid and technology and whatever. we stop to think about it. if we allowed the mayors of this country to come up with a list, regionally, of what could happen, we might be able to then start to envision what it is and how we would get there. but so on that point, let me

turn to the chamber and the afl, which is as many of you may know, they are prominent members of an organization that we have all started, what many of us have started, which is infrastructure week. but it's a coalition of the chamber and the afl and building america's future, and the manufacturers and afce and the value of water and several other organizations, so it's really important. we don't agree on everything. but we agree that we need to improve our infrastructure. so the chamber and the afl have been a very important part of this. and if you could just talk for a second about what the priorities for the chamber on and what you think we need to do. >> thanks. a great opportunity to be here, and bloomberg always seems to time these things right. so great time. i think i want to wheel back a little bit, because even though damon and i are in separate parts of the stage, anyone who

has seen our bosses together knows this is a long time commitment of the business community working with organized labor. we started americans for transportation mobility back in 2000. and i think all the panelists here, many of you in this audience and all over the country, this has been 15 years of effort to get to the point where we had two presidential candidates talking about the importance of infrastructure. it just didn't come out of the woodwork. we're just not here because somebody wanted to talk about it. this has been a sustained campaign for several years. we have once in a generational opportunities to take advantage of that. and so just to throw that out there, this isn't new. we're very excited about this opportunity. and with president-elect trump to kind of take some ideas that they have thrown out in the campaign, and we have heard a trillion dollar infrastructure deal, and try to make that into a reality, we cannot let this opportunity go to waste. and so we're partnering with a variety of folks to try to

educate, make them know, and lay out a couple priorities the chamber as when we're talking, because everybody asks the question, what is a big infrastructure bill? what we would like to see in a big infrastructure bill is increased investment and financing options. you know, some in the trump campaign before the campaign talked about a lot of private investment. we think that is an important supment, but we really need to raise core investment, particularly for the highway trust fund, to make sure that solvency is met, so that's a real one of our big goals. the second goal is to, we don't need to create a lot of new programs. when we're looking at private sector investment, a lot of talk about infrastructure bank. we already have a program that has been very effective in the past. so we can enhance that, and this administration through the build america bureau has already enhanced the ability for state and local governments to go to an agency and look at various ways to use private participation for investment.

so that is another core option. again, we need to continue to build upon a lot of people say we have to build up trust with government. and we believe that the federal government, that has been had, if you look at the last two major federal transportation bills which is map 21 and the fast act, we started with about 110 programs and surface transportation that were federal mandates. we have now cut that down to 12, with the act that passed last december. i think we have seen that the federal government understands we need to provide more flexibility and options for state and local governments and provide a tool kit of options for governments to look at and say what is the best tool kit of options to fund the projects in our community? and so to provide that option and that choice. again, we have once in a lifetime opportunity to do it. we're very excited, what we heard from president-elect trump that he wants to make this one of his big issues and we're going to work closely with them and thenny of you in this room

to try to take the goal and make it substantive. we don't want a repeat of what happened in 2009, which at the time a lot of the infrastructure investment which was not nearly the amount needed, but the investments that went went to a lot of short-term projects. they didn't systemically change the transportation system in the country. we're going to make sure if we do an infrastructure package next year, it's going to change the system for the better. it's not just going to be a one-time influxion of money. this is long-term sustainable investment that's going to serve as the backbone of our community. >> let me ask you the following. what do you say to people on the hill when they say we just passed a spending bill? >> good question. so last year, they did pass the fast act. it was only three and a half years late and 30 extensions. i wouldn't argue that's the best thing. but that bill increased funding for highways and transit by about 10%. that is only about half of what the american society of civil

engineers says we need to invest to actually improve our infrastructure. we're doing a lot of band-aids. we're not systemically changing the system. that's a great example of a system that was started at a state of the art system, but it's not sexy all the time to put money into maintenance. when you don't maintain an asset, and then it deteriorates to such a point, the cost is so much more than if you maintains the asset during its lifetime, and i know it's a challenge because we have two lawmakers here who actually made decisions to make investments that may not take place while they're in office, but that's the type of leadership we need. wheniz wheni izeisenhower developed th plan, maybe it doesn't help you for your next election, but it's right for the public. we're committed to support those lawmakers to make those type of long-term decisions. >> damon. so talk to us a little bit about

the goals of the afl in ctrying to get something done to take advantage of this opportunity. and how do we finance this? how do we fund this? what's the scope of what we need and what you would like to see done? >> well, first, i think we really see in this panel an unusual sort of convergence of opinion. from people on different sides of partisan divides, the business community. you know, a lot of what i have -- a lot of what i wad want to say here my colleague in the chamber has already said. but i'll repeat it, because that's the nature of washington. first, i think we need to understand the scale of the problem. the american society of civil engineers, as has already been said, estimates that our infrastructure deficit,