completely dependent on miami-dade county investing in some cybersecurity effort, which we -- >> in florida we never have a problem with counting our votes, you can be sure of that. >> sorry, i forgot who i was sitting next to. let me choose another example. >> so we may have to reconvene in a week or a couple of weeks and talk about this in light of the election. do we have another comment or a question? sure. >> thank you so much for this panel. it's really very engaging. my question is about counter narratives, which was alluded to i think just now by katie. given that those who carry out these types of attacks appear to be desiring to become heroes of their own story, how do we help promote counter narratives in which they could become heroes of a better story? >> at least the counter narrative that i've seen talked about don't necessarily have them try to be heroes of a

different story but make them not heroes of their own story, so at least when you're looking at sort of the way the counter -- the terrorist groups -- you're right. they try to always show themselves as being successful. right now, we're -- we have operations in mosul. they're spending their time for other attacks in other places to make them, the mosul problem, seem like less of a big deal to them. the extent to which we can counter that narrative showing their failure, showing they're not ten feet tall, that they have some governing structure, but it's not nice to live under them, that's mostly what i've seen us trying to do. the challenge is getting it out i think at the speed and volume that thus far they've been able to and to be able to reach all the voices that you need to be able to reach. >> peter? >> this idea of narrative to use the term hero part of a good

narrative there's elements to it and one is strong characters. and the counter narrative that we do sometimes -- and it goes to what you were raising of being very official -- lacks that. so if you're thinking about the success here, it would be both on the hero side. so the alternative heroes, and hitting some of the aims. if the goal is to create unity, to keep a certain community from being demonized. getting to this there is this sort of narrative out there. why don't muslims -- why don't they point out terrorism or why don't they speak out against terrorism. and instead it's a counter narrative of both identifying, for example, heros in the stories that might be from that community. and so we've seen that, for example, in the paris attacks where it was a muslim who hid

jews from the attacker in his store to i believe if i'm remembering this correctly, it was one of the s.w.a.t. team members was muslim american. in turn, the counter narrative against an isis is t point out oh, by the way, the group has killed more muslims than anyone else. and that's true whether you're looking as a whole, the story in mosul to the victims of these bombings have consistently included or attacks have consistently included muslim americans. so when we're telling the stories of victims, to make sure that what defines these, what makes this group so anathema. it's not just boston strong. they're going against all of us together. so trying to find the key elements of narrative in our pushback as opposed to data dumps. numbers are important. correct facts are important. but also having a narrative that

is thought out in your counter is key too. >> juliette i know you want to say something. you focused on what kind of city you wanted to be. . and that was the story, the alternate story that you gave. >> and actually, in reading your report, your paper, i think we were doing something that was intuitive to us without knowing it was in the confines of the type of response that you suggest we made. >> right. i know you weren't thinking of it in that mechanical terms. the fact is that's what you did. you gave a different narrative that was a powerful one. >> in hindsight i would say that as yes but i don't know that i was thinking that exactly at the time. >> juliette? >> i want to add something to what peter said. i think what that means is you think the best counter narrative is that life as a man, life in isis, you're going to die, essentially or be killed. and as a woman, it's not roses. and there is this -- they were very much promoting women

coming, jihadi chic, sort of having women come. one of the more interesting things that's happening is to figure out ways in which we sort of forgive the former jihadist. you're starting to see some courts. as long as the person wasn't successful or killed a bunch of americans, get court sort of gives some leeways so you can get these conversations out there, both in europe and here in the united states. there is an interesting case which the judge essentially said, you know, for lesser time we want to hear your story. because that story is going to be the best narrative. so this sort of lock 'em up attitude may not be the best long-term strategy for counter narrative. >> i think too, one of the signature aspects of social media, and peter, you mentioned it, is this hunger for authenticity and also for humor, for making light of things. how many times in a day do you get something on social media that's funny or a joke that also

seems to me is as someone who is trying to help build a narrative how do you unlock that collective thirst for authenticity and humor, and sort of skepticism is part of the challenge, too. you can't manipulate it and make it happen but when you show they say they're this but show people that's not what they are, seems a lot of times the collective will takes it from there, sometimes not always in the right direction but there is that. lisa, you had another? >> i actually have another question from the university of central florida audience and this is from a student. mayor dyer, are you comfortable with current plans for a scalability twitter public relations response should the pulse attack occurred in a work day rather than at night? >> it would have been a far different experience and

communication challenge if it happened during the workday. heather and i were talking about it earlier today that not only would we have had the communication aspect but we'd have had thousands of employees and businesses instead of being in the middle of the night with nobody around except the people that were inside the pulse nightclub and the first responders, so it would have been a totally different reaction and although i don't think if it would have been at 11:00 the bar would have been open. so that aspect at least would have been different. it would have been a lot more challenges. i think our protocol is still right in terms of how we would do that, but certainly the other organizations that are gathering information and conveying information, the amount of social media that would have been out there retweeting or tweeting to begin with would have been far more difficult experience for us. >> is that sort of social media and communications exercise part of national level exercises, juliette, when we practice at a national level for incidents,

are they exercising that aspect of it? >> yes, it is but i think look you can't put lipstick on a pig. if your response is not good and you're not going to make it look pretty by a really strong communications choice, you essentially need both. but, you know, it's taking longer than i think most people like to get the social media viewed as probably -- i don't want to say it's more significant than local news, but it's as significant. so that chain is just taking longer of sort of what does it mean to be out there with tweets? who are the people doing it? do they know how to do it? are you live tweeting? do you know how to do it? that's going to be i don't want to say generational shift but as police chiefs get younger as others, that's going to be, they're going to have grown up with facebook and twitter and feel more comfortable than it being an alien thing. it's still taking too long.

i would say. >> katie? >> i just wanted to add on the federal level we sort of have the challenge that we recognize with the fbi which is that is not closest to the people. it doesn't have the authenticity. if you have whether it's a big state or out of fbi to talk about an incident or dhs. it's one of the challenges on the national security side we were talking about counter counter narratives. it's really hard to think about the u.s. government sending out a whole bunch of tweets about how great it is in the west and how awful it is under the caliphate. it doesn't necessarily -- it's not the voice that should necessarily be doing it. we're constantly thinking about who should be the sort of step above that should be sending that message. but even that then who is the clearance of the content. it gets very complicated very fast. and then you get back to the problem of how do you make it as fast as you need to it counter messages that the enemy can put out very fast. >> there are no more questions.

okay, one more. i'll pull us back to the hero point again. just to say that when we looked at what happened in pulse, remember, we have a shooter who was actively trying to make himself the hero of his own story or what he thought heroic was, and the reason that didn't get out in realtime was because facebook took it down. some of it was probably community rules that were automated and some of it was probably done with a human touch. so i would just point out that the social media companies again do have a responsibility and a role here, and one that's going to be constantly evolving as the threat and the perpetrators change and also as the technology changes. again, live streaming launched two days before this attack on facebook, so this is not going to be static. it's going to be changing, but they have a role to play in not letting someone who is advocating for this kind of criminal violence make himself the hero. so lisa, you had another

question from our audience, our remote audience? >> yes. this is from dr. vazquez again. and it's for peter singer. he says that i've heard presenters talk about the use of cell phone cameras and other devices by u.s. troops have complicated u.s. and allied military operations in the field. are you familiar with similar stories that you can share and if this is a problem, is it an issue that the u.s. military is doing a better job at dealing with? >> sure, so it's definitely an issue, and i think it's a great illustration on this idea there's no more secrets or at least the secrets have a shorter half-life. the bin laden raid. the bin laden raid was supposed to be the most secretive military operation of the last generation. we all know the famous image of the president watching in the situation room live but simultaneous to it you had a

pakistani i.t. consultant living in abbottabad live tweeting the operation. and so if that's happening -- this is several years back. we're moving forward. you were mentioning facebook live and we see that. again to go to the election you have this why can't we keep our operations in mosul secret? part of why we can't keep it secret is not only that there's massive desert in between, but also everyone from isis fighters to our allies are tweeting to their -- and there's a youtube channel. they created a hashtag for the operation. this presents, i wanted to circle back to what you raised, media companies sort of need to regulate this, need to control, but this is a new question for

them in what they let out so there are acts of violence that some we would say, should not be up. others we would say are newsworthy and we can have an argument around that. this became an issue in the police shooting in minnesota that was, you know, the images of it were put online by one argument violated terms of service. because they were violence. it was a killing online. other people said no, this needs to be shown because it needs to be part of this national debate on police violence and race relations. the challenge is, these companies are the ones asked to determine this. one, are they well equipped to do it? two, do we want them to do it? three, do they want to do it? they didn't set out to regulate this world. they set out to create a cool tech and they feel uncomfortable about it, too. >> one of the officials we spoke

to at one of theseompanies pointed out you have some very big companies that have capacity and the interest in figuring out that horrible gray area. what's free in speech and what's dangerous speech and what do you want to allow on your site and what don't you. he pointed out, there are a lot of social media companies that are more than a guy in the garage with a server who neither has the capacity nor the interest to regulate what is being posted. so, it's not -- may not even be the case that you can regulate or control. because not everything that is being seen by all of us has someone moderating it that wants to control it. so that's an element here too. >> the scenario that the mayor laid out of, we had this one case of it being at night, a group that we all clearly disagree with, but you get another scenario of, you know, a killing in daytime, you know,

how that might be different including the video of it gets out. you know, how the reaction, the politics of it might be different. >> well, we are just about out of time. katie, juliette, mayor dyer, any last comments for the audience? >> i just want to thank you for allowing me to participate in this forum and the work you have done related to the pulse event. >> thank you all for coming. it was wonderful to get in this conversation with you. let's give the panel a good round of applause. [ applause ] for those of you here in person, for our audience that joined us remotely, thank you for tuning in and sending us questions. for those of you here in person, please join us. we have a reception outside. civil rights advocates are holding a news conference

tuesday to denounce recent displays of racism and bigotry in the u.s., and urge president-elect trump and every american to denounce all acts of hate. that's hosted by the southern poverty law center. watch live at 9:30 a.m. eastern here on later in the day, a loo how congress might try to govern under a trump administration. senators chris coons, amy clobuchar and senator lank ford sit down for that discussion on c-span3 at 6:00 p.m. eastern. president-elect trump and his advisers remain busy this week trying to fill several cabinet positions. mike pence spoke briefly to the media about the ongoing process. we also saw a visit from retired general david petraeus who is reportedly being considered for secretary of state.

>> good morning. >> good morning, how are you. >> good, good. going to be a busy week. get ready. >> do you believe millions of people voted illegally? >> sir, how's the transition going? >> general petraeus -- >> is that right there? right here? no, right here. >> that would be great. >> thank you. >> how'd the meeting go, sir? >> meeting went very well. was with him for about an hour. he basically walked us around the world, showed a great grasp of a variety of the challenges that are out there and some of the opportunities as well. so, very good conversation and we'll see where it goes from here. >> did he offer you the secretary of state position? we'll see where it goes from here. i've got to teach this afternoon, so that's all i can do.

>> do you have any advice for him? follow the transition of government on c-span as donald trump becomes the 45th president of the united states and republicans maintain control of the u.s. house and senate. we'll take you to key events as they happen without interruption. watch live on c-span. watch on demand at c-span.org or listen c-span radio app. >> thank you all very much. welcome to congress. next, supreme court oral argument in a case that will decide whether someone has the right to sue police officers for alleged false arrest and detention. the case centers on elijah manuel and his younger brother, who were pulled over by law enforcement in illinois and then arrested for possession of a

controlled substance that later tested negative. the court is considering if the fourth amendment's ban against unwarnlted searches and seizures extends beyond arrest and can serve as a basis for a malicious prosecution claim. this is an hour. >> we'll hear argument next in case 149496, manuel vs. 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. and third this case is not about whether there's 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 -- with the tenth circuit -- >> but you need to get past the statute of limitations problem and to do that you need to characterize it, as i understand it, as a malicious prosecution claim. otherwise, it's time barred. >> what we need to do is determine the -- not the statute of limitations, which is two years set by state -- by the state. but the accrual period. in "wallace" the court said you normally look to not the state law but it's a federal question, that you normally look in reference to the common law. and in "wallace" they did say that that would be malicious prosecution that does have as an accrual period favorable termination.

>> but favorable termination has nothing to do with the fourth amendment claim. right? whether your prosecution is favorably terminated or not the fourth amendment claim -- and it seems to me the accrual -- begin when your fourth amendment rights are violated with, say, an illegal search. whether you are eventually convicted or acquitted, it really -- you have a claim for an illegal search if there's been an illegal search without regard to favorable termination. >> our claim technically here is it is detention without probable cause. not the search that occurred when -- >> right, but regardless, whatever the fourth amendment claim is. >> right. and that 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 exit 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's 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. >> i thought if you've never received it then doesn't your

time to accrue for the improper detention accrue when you're no longer detained? here it was the not guilty, correct? >> correct. >> so it's not a question of when it starts, the question is when does the illegal detention finish. >> correct. correct. >> and there's been no intermediate force, no intermediary stepping in and breaking the chain of causation. correct? >> right. >> am i understanding your argument correctly? >> yes, you are, perfectly. i wish i could take credit for that. [ laughter ] >> but i'm -- the only way i can think of it was thinking of it this way because you're not claiming malicious prosecution or not. >> right, right. "wallace" talked about malicious prosecution but this is a larger issue of 1983 jurisdiction which

is, you know, what is the proper accrual period for a constitutional -- a constitutional violation? we don't -- we're not -- >> detention without -- >> proximate cause. right. and it's -- you don't -- you're not straitjacketed into a particular common law provision. you have the right to fashion one that does justice, and 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 the label and that's what the court at least in wallace has used in a label for talking about these type of claims. and in gerstein too. it's just a label to, in a

sense, distinguish this case from detention without legal process. >> let me give you a hypothetical. that's actually close to this case. officer fabricates evidence in order to arrest and book the defendant. then there's a gerstein hearing within 48 hours. evidence is still fabricated, same fabricated evidence is introduced. he's held for three months. then there's a pretrial suppression hearing. the evidence is still fabricated and he's still held for two more months. then there's a trial, evidence is still fabricated and he's convicted and held for six more months. then there's an appeal field and then suddenly they find out the evidence is fabricated and the charges are dismissed. fourth amendment violation for the entire detention? >> no, we would say the fourth amendment at least based on your case is the fourth amendment claim ends at conviction and then there can be a due process claim or whatever.

>> why is the trial and conviction any different than the gerstein hearing? they're both the legal process. there's 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 non-adversarial hearing so it would be a grand jury proceeding while a conviction in a sense presumes that you're -- you were held with probable cause and then you 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 they would be -- so

at least there's a legal recognition that there can be a malicious prosecution claim in the gerstein hearing? >> no, it's -- it's a fourth amendment claim. we're not raising -- >> i'm asking if under state law, tort law generally, you can bring a malicious prosecution claim if there's fabricated evidence produced at the gerstein hearing that results in your -- >> in the release? >> result in your detention. >> well, yes -- >> that's why there's damage and you're suing. >> right, but you have to be -- there has to be a favorable termination in order for you -- it's an element of state court malicious prosecution, so you need to be -- >> okay, it's terminated six weeks later. >> that would be a malicious prosecution claim under state law. >> why do you make the cutoff conviction if it turns out even

on habeas that the police have 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 you're released from this unlawful custody? >> you could if you rule that way. generally this court has ruled that after conviction there's due process. your trial rights have been violated so that has been a different amendment that you've gone under. in this case -- >> it's not just -- it's the same right that you had from the very beginning. >> it could be more than a fourth amendment right. there could be more than one amendment cover the same set of facts. >> but there's a different consequence to whether you terminate a fourth amendment

right or due process right under parrot against taylor. >> well, we're claiming it's a fourth amendment right. >> i know but you just answered in response to the question that it could be both. >> it could be both. usually -- or at least reading justice kennedy's concurrence, it appeared 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 so pending a decision to prosecute or trial. so it's the fourth amendment that covers this rather than due process. >> what happens to the person who's let out on bail? are they out of luck under your theory? >> no. no. >> are you defining detention as broadly 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 justice ginsburg's concurrence that 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's released, why should -- shouldn't the statute of limitations trigger the -- when he was initially arrested? why -- whiesy should the trigge

for the statute of limitations be different just because we label this fourth amendment? >> i think there's 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 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 case, the seventh circuit says something that no other circuit does which is to say that they say there's

no fourth amendment claim under section 1983 at all, full stop. if we think that that's wrong, oughtn't we to just send everything else back to the seventh circuit to decide what they think the fourth amendment claim looks like? in other words 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're wrong about whether this fourth amendment claim exists. why isn't that -- i mean, all this other stuff, the seventh circuit hasn't told us what they think about it, circuits are split on it. it hasn't been briefed because the principal question has been whether there is a fourth amendment claim. why shouldn't we send it back to them to decide. >> i would be in agreement with that. >> you would be in agreement with that? >> i would be in agreement with that. >> i wasn't sure. i thought you were arguing. >> only response to the questions.

i think the question we've raised is solely the issue of does the fourth amendment cover detentions pursuant to legal process. >> but don't we have to know -- i'm sorry. >> without legal process. >> with -- >> you're saying it's improper legal process? >> yes, it's still a legal process. it was corrupted but it was still started with that. >> don't we have to know what kind 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 but we don't know what it is but there's some kind of claim, you go back and tell us what kind of a claim it is? >> no. i'm saying the court can say that this is a fourth amendment claim. >> it's a claim for unconstitutional detention. >> just as if they brought it up in albright. >> what the statute of limitations is on that claim or 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. >> well, but, i mean, the alternative that is argued is that it's a due process claim and whether or not they co-exist or whether or not the particular period that you're complaining 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 say it's a fourth amendment claim or due process without referencing the statute of limitations. that is before you. you can't answer it. we're not talking about -- as i said before, we're not claiming the decision to prosecute which might be a due process claim has been violated.

all we're talking about is the detention subject to legal or corrupt process. that's the only claim we're asking for. the court has indicated -- >> is the detention -- you've 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 on false arrest and false imprisonment claims according to "wallace," as soon as you get legal process there's been an intervening end to the false imprisonment because someone else has imprisoned you. so what remains in this case? how do we define the

constitutional violation? >> we can reserve time after there's more questions. i think this is a fourth amendment claim that you can describe as being corrupted by a gerstein hearing. you could claim it prolonged detention beginning at legal process the way county of river side or rodriguez where it was extended just for -- the traffic stop was extended just for seven minutes to do a dog search and this court found that it was a seizure, an improper seizure. this is exactly what happened here. the seizure was extended improperly because of the fabrication by the police. >> thank you, counsel. >> ms. eisenstein?

>> mr. chief justice, we think the court should locate the constitutional right at issue in the fourth amendment. for the reason that the fourth amendment 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 the fourth amendment stops operation once criminal charges are filed and this court has long recognized as well that there's a variety of ways to make that proximate cause determination, including by the same procedure used to bring the criminal charge itself. >> suppose it's a close question about probable cause. no fabricated evidence, just was the information available to the police sufficient to make the arrest. and the court wrongly determines that there was proximate cause and he's held for six weeks.

fourth amendment violation? >> your honor, it may be a fourth amendment violation but there may be no one to sue under those circumstances under section 1983. >> but is it a fourth amendment violation? 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 think a wrong -- >> no, it's wrong but reasonable. >> then, your honor, no, i don't think it would be a fourth amendment violation at all. >> why? he's being detained. >> well, because, your honor -- >> violation of the fourth amendment. >> well, your honor because -- >> and that's why it seems to me there's a good argument that we should be talking about malicious prosecution, not the fourth amendment. >> well, your honor, i think the fourth amendment does afford reasonable mistakes of fact and law for that matter in allowing someone to be detained so it's not that. in fact, the probable cause standard itself allows for factual errors in the determination. but here the allegation that mr. manuel claims is that he was detained on drug charges that relied entirely on fabricated evidence and we think that that

claim is a claim of detention without probable cause under the fourth amendment. >> what if it's unreasonable and the defendant would haven't -- wouldn't have qualified immunity, but it's not corrupt. there's 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 role in bringing the charge. so if the officer puts forth and has -- 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 suit, he may be liable. but to the extent to which the error falls with the imagination tra -- magistrate or prosecutor -- would be foreclosed by absolute immunity. >> and what if it's an fbi agent? >> your honor, i think the bivens liability follows the same immunity and rules. >> i thought you said the standard for state and local law enforcement officers might be

different from the standard federal law enforcement officers. >> if i did i don't believe we were referring to -- if you could clarify which standard, the standard for qualified immunity or -- >> page 30 to 31 of your brief. >> well, your honor, i think that in those particular instances that piece of our brief related to special factors that could potentially cancel hesitation in a bivens claim that don't necessarily apply to section 19 -- >> that's what i'm saying. so you think there would be a remedy for violations by state and local police officers but not under site kal circumstances possibly if it's a federal officer. >> we wouldn't draw that distinction. >> well, then what were you saying in your brief? i don't understand it. >> i think there may be other circumstances not presented by this case or a case of

fabricated evidence or unreasonable pursuit of a wrongful criminal charge that may lead to a different result under 1983 under bivens, but we -- i don't think we have to -- we just wanted to make sure that the court understood that the bivens claim may have different ramifications. >> i may be missing something, i thought this was a simple case. a policeman makes an unreasonable stop and an unreasonable search thereby violating the fourth amendment. now you can sue him, assuming you overcome other hurdles. now he takes you off and puts you in prison either with a magistrate or without a magistrate and 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 the 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. and 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 in my mind. is it right? >> absolutely, your honor. that is exactly the framework that the government puts forward, that it's not just the mere fact of being held in jail but that the constitutional right depends on what process was infringed. >> all right. so, let's stop and i understand you so far. the question presented was, i thi think -- i don't have it -- i do have it here. so, whether an individual's fourth amendment rights to be free from unreasonable seizure continues beyond legal process.

so, as to allow a malicious prosecution claim based upon the fourth amendment. the chief justice was right. the question presented is, does the fourth amendment house a malicious prosecution claim, which is something very different than what you're 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 suit under a section 1981 tort and in that instance, the accrual may be governed by the closest common law analogy. when the challenge at its core is arguing that the wrongful led to the detention without proximate cause, in our view, the closest analogy is a

malicious prosecution claim and do we have -- >> 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 not think 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 in he can and wallace are taken up by the common law analogy. in terms of malice, no, your honor, we don't think malice, as it's known in common law or 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 cause the same way it treats it under a search warrant. we don't think of that as a

malice standard of common law but rather an extension of the franks doctrine. >> i know we said inspired examples we take to flesh this out but it does seem to be pretty result-oriented cherry picking. here's a claim, now wooetd like the statute of limitation part, we don't want to have to show malice. i don't know if we're still holding true to the approach in "wallace" if you just start picking things in and out depending on the demands of the particular case. >> well, your honor, i think that "wallace" did say that federal accrual rules, in particular, were governed by the common law analogy. we think that's as far as it goes in terms of choosing for the common law. the statute of limitations, for example, is borrowed from state law. but here, the seventh circuit's view of accrual flowed from its error as to the scope of the fourth amendment so to justice kagan's proposal this that's this go back, in many ways, we think that's appropriate. the seventh circuit erred, 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, we think that even under seventh circuit jurisprudence, they would agree that a favorable termination requirement would apply in such circumstances. >> when does the fourth amendment claim stop? i think i -- i think co-counsel said if you're convicted, it stops. in response to my question, suppose none of this comes out until habeas and then 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 bay magistrate or a grand jury that that is a fourth amendment claim but once the person is held pursuant to a finding beyond a reasonable doubt, at trial, that due process and other

constitutional protections take over. >> suppose there's a pre-trial suppression hearing in which both parties are represented. and the court reaches a wrong result with reference to the admission of the evidence. does the fourth amendment violation still continue? >> may i answer, your honor? your honor, i think that it may be a fourth amendment violation, but whether a plaintiff could bring those kinds of claims would be governored by preclusion principles and other similar bars, once that issue had been actually litigated in the state court. >> in a state court proceeding, the state analog, what would be the rule of accrual ending? you get convicted, you don't find out about the false testimony 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. scudro. >> mr. chief justice and may it please the court, i think it's very important to frame what is before the court this afternoon, and to begin, i think it's essential to note, 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 seventh circuit disagree. the reason this came up to the seventh 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, the one that was appealed and that one survived momentarily in the district court because petitioner claimed that that one claim has a favorable termination element pause it is malicious prosecution. he reiterated that claim before

the seventh circuit, and the seventh circuit reached two conclusions. one, you have a fourth amendment claim, which they discuss, and the only claim before them was based on the lie at the gerstein hearing. you have a fourth amendment claim but it is already accrued. it accrued too early. it is untimely. now you're asking us to recognize a different breed of fourth amendment claim, namely a malicious prosecution fourth amendment claim because you'd like to overcome the time bar. we do not recognize that fourth amendment malicious prosecution. >> mr. scodro, i just have to say i read this differently so you can tell me why i'm wrong, but in the last column of the seventh circuit's opinion, there are twice where the seventh circuit says what it thinks. the first time, it says, "when after the arrest a person is not let go when he should be" so it's 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" and then 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." so it seems to me that twice the seventh circuit says very clearly that you have this fourth amendment claim until arraignment or legal process, and after that, the fourth amendment falls out of picture. and at the very basic level, before you get into these questions of, what's the accrual date or anything else, it seems that that's the thing that the petitioner is saying is wrong. that the fourth amendment claim continues after arraignment or after legal process. now, when it accrues, when it doesn't accrue is a different question but it's still a fourth amendment claim, and that's what the seventh circuit rejected. >> your honor, i think what -- and i would direct the court to the top of ja 103 as well where the court also noticed -- 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 -- and by the way, this is consistent with past statements by the seventh circuit -- the fundamental statement the court has made, and this comes from newsom, the 2001 decision from when this jurisprudence has blossomed in the seventh circuit, relabeling a fourth amendment claim as malicious prosecution would not extend the statute of limitations. this has been the nature of the battle, and on page 21 of the petition in this case, petitioner makes clear why the question presented doesn't end halfway through. it doesn't ask merely whether there's a fourth amendment right that survives the initiation of process. if by process they mean gerstein hearing, we agree, and i think the seventh circuit would agree as well, but it goes on to say, so as to allow for a malicious prosecution claim, and on page 21 of their petition, they

explain to the court what they mean by that when they say that the fate of this appeal to this court turns on whether the court does or does not adopt favorable termination element and that that's why this makes an ideal vehicle to answer justice alito's earlier question, which is what are the elements of this claim. >> i didn't think that was a difficult question. i thought that everyone agrees that if a policeman wrongly arrests you, you know, maliciously arrests you, et cetera, and there you are in his custody, and he brings you over to the jail, puts you into the jail, up until the point you see the magistrate, you have a claim for false arrest. >> correct. >> and we said that that claim for false arrest is a constitutional claim. >> yes, sir. >> violates the fourth amendment. what time limit applies? the false arrest time limit because that's the most analogous. >> yes, your honor. >> then we get into the next stage. now we're in front of a magistrate. and the magistrate says, stay in jail for two more months.

does that violate the fourth amendment? not malicious prosecution. does it violate the fourth amendment? the reason that we tend to think it does is because all the circuits have said it does. that is, judge higgen botheren said that in the fifth circuit. a lot of circuits picked that up. i'm not saying every one, but they said that too violates the fourth amendment. now we have a problem. well, what statute of limitations do we use for that one? and there, the circuits seem 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 be applied. >> so you 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 several -- for a while, for a week, anyway, until we get to trial. that that period is a violation of the fourth amendment? assuming they were all lying, et cetera. >> your honor, yes. insofar -- >> okay. then the question is, do we use the malicious prosecution --- >> right. >> as an analogy. so now the question, great, this is fabulous, i get to the narrow question that i have. why isn't it a good analogy? >> your honor, let me answer why it's not a good analogy and i'll answer, and i think flesh out just slightly, whether or not this remains the moment in time when the police officers tllie submit an affidavit with falsehoods, to a magistrate at a gerstein hearing, and the magistrate finds probable cause, what we do not dispute and what

we do not think the seventh circuit would dispute is that that is a violation of the fourth amendment. now the question of whether or not malicious prosecution is the proper analogy, the answer is, absolutely not, and "wallace" tells us why not. "wallace" tells us -- the petitioner has shifted just slightly from a reliance on common law favorable termination, which is what most of the circuits on their side of the split have done, this also goes, i think, to your honor's question and to your point. most of the circuits on the other side of the split have used favorable termination, but they've done so by adopting it as part of the underlying four element common law tort and they think if that's what we're 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 heck and that's the request made by the petitioner. but wallace was very clear. heck only applies -- the delayed accrual principle and the favorable termination element that comes with it, apply 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're 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 and the reason was very simple. because 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 in a circumstance where all you have is an ex parte requirement or finding, rather, 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 claims and instances. >> why? why? you can have discrete claims, one wrong is you never should have been arrested. so you have a fourth amendment claim for that. 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, but then if you are continuing to be held, based on trumped up false information, why isn't that like a continuing tort? and it continues until it ends. >> well, your honor, just to make sure that i'm -- 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. indeed, the continuing seizure idea would be inconsistent, facially, with the petition which claimed they need the benefit of favorable termination to prevail. they, of course, wouldn't need it if they were, instead, arguing for a period of a -- a continuing seizure. lower courts have rejected the notion of a continuing seizure and they're not raising it here, and i think the reason may be twofold. the first is that it runs into -- it runs in the face of traditional accrual principles that this court has said cases like ricks and others, that it's not the period of harm that

matters for accrual purposes. it's when one first experiences the harm and thereby has all the elements needed to proceed. and a case like morgan, which was a hostile work environment case, is really the exception that proves the rule in many ways. it tells us why or how narrowly the court has construed the exceptions to this typical accrual principle. hostile work environment does require precisely what your honor describes because it's impossible to know precisely when a hostile work environment begins. is it the second comment or the fifth or the tenth that someone has to endure in the workplace, and therefore the court is willing to consider it as a monolithic whole and treat it that way for a accrual purposes. but again, that's the exception that proves the rule. as wallace itself concluded, there can be a cutoff which wallace imposed between the initial arrest and the post-process arrest, and wallace itself, in that regard, i think, breaks through the notion of a continuing seizure. the final point i would make,

and i think this comes out in one of their amicus briefs, namely the brief by professor al shuler, 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, and what that means is 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. >> i don't know why you need to give evidence to somebody who's fabricated the reasons why you're in jail. and i don't know why you would think that it's important to cut off recovery against a police officer who bases an arrest solely on fabrication. there's -- it doesn't seem so horrible to me. years later or immediately, if you've done something as untoward as that, as

unconstitutional as that, why should it matter? >> your honor, two points. the first is -- and this is a point of clarification. we're 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 proximate causation principles through all or part of the pre-trial period. there may well be interrupting events but that, i just want to make clear, we're 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 principles would shake out. the other point, and this is one that the states made if their amicus brief in wallace, they've made it again, as have the municipalities, they've made the point that early notice to the state as employer of agents who are 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. and this court in wallace, in turning aside basically the same extension of heck that is recommended for the court or the court's invited to take in this very case, when they turned it away, they said one of the reasons is we need notice to the would be defendants in those cases. they can preserve evidence to ensure that -- >> you know, counselor, it's not as if most states don't receive that kind of notice in these situations. the defendants are just not believed in most 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're talking about -- >> mr. chief justice, and may it please the court, i would like to make -- >> so many liability. qualified immunity, franks, there are so many other protectio protections against the state and other officers for errors but why should we worry about not receiving notice? >> the reason, your honor, is that, 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 to the would be defendant, it's purchased at the price of closing the courthouse door on a number of potential fourth amendment claimants, those who are subject to unlawful arrest but are later validly convicted. this court's -- >> mr. scodro, could i ask, i might be misunderstanding this, so you'll tell me if i am. but it seems as though the position that you're taking now is diametrically opposed to the position that you took in the seventh circuit. so, i'll just read you something, and this is from oral argument, but my clerk tells me that this is what happened -- i think that there's not a transcript, but maybe there is. but at least this is what my clerk tells me happened at oral argument. judge r o ovner says, there are ten other sishlcircuits that haw recognized this type of claim, this fourth amendment claim, she said, let's just assume we do

what those ten other circuits have done, which of course they didn't do, but she says, let's just assume it. at what point would you think the statute of limitations would begin to run? and 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're assuming that the constitutional tort would follow the same pattern that state law does and require the favorable termination, because if there's no favorable termination for all the policy reasons the states have considered, there's no injury. and 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 that -- >> is there no transcript for this? >> i'm not aware of a transcript. the seventh circuit makes -- actually, part of that quote appeared in the reply brief in support of the petition and what that quote makes clear, it seems to me what the lawyer is being asked is, if we are to follow suit, what -- again, taking it back to what was -- this was on a motion to dismiss on limitations grounds. the -- 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 limitations period by virtue of these common law elements and what the attorney was being asked, as i heard that argument, what the attorney was being asked is, isn't -- do you

agree that what they're trying to do here is join what every other circuit has done, and if we join what every other circuit has done, they would have a favorable termination element. >> other, i don't think that's a -- i mean, maybe. i guess. i mean, it seems to me that 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 -- 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 i, 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 petition includes a reference to, well, if -- 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 -- i mean, no one denied it. what they were saying in their briefs was, we want the benefit of the four element tort recognized in other circuits, most because they're just adopting wholesale the tort, a few because they seem to -- they

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 4 accrual date and the answer is yes because that's what they've been seeking all along. >> look, the person is being held because the magistrate, listening to the policeman, detained him and the magistrate and everybody was very unreasonable, da, da, da. okay. now he's there. day one. can he bring a case? yes. why not? he's being -- 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. 90th day, he's released. it's now the 91st day. can he bring it? yes. but now we only have two years. why only two years? because we're looking for an analogous statute under the state to give us a limit. and the analogous one, though not perfectly fitting, is malicious prosecution. and that had two years.

and that's why. two years after the release date is the longest -- you had better bring it before then, because that's two years since you were 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 is accruing on day one. we're not going to give you -- there's no extant conviction. >> but it's a different claim. one claim is for arrest, and the other is for prolonged detention. there are 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 prolonged detention claim.

>> well, your honor, i think what would happen, they wouldn't have a claim based on misstatements at the gerstein hearing if, in order to make out that claim, as petitioner contend, 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. and if it would be helpful to have a common law point of guidance on this, in footnote 12 of our brief, we provide a list of common law case, an example of common law cases in which the court addressed a question like this. we have an ex parte proceeding in which a magistrate has issued a warrant. i'll take the steward 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. it never blossoms, he's released

and he sues for malicious prosecution. and the defendant in the malicious prosecution contends that they're not -- that they're unable to show successful outcome. >> so what's your view? what's the best one? what's the best analogy? >> it's this form of malicious prosecution where you didn't have to prove favorable termination because all that was against you at that point was an ex parte determination. >> the state law like that? >> this was -- i'm saying, what is your opinion? what is the state law that does apply the best analogy? >> i think the closest analogy is false arrest. >> false arrest. okay. so, now, what is this -- what is the -- what is the statute of limitations for false arrest? >> the state law, it's still the personal injury limitations period of two years. >> okay, fine. so he was being detained for up to, let's say, the 90th day. he's still being detained. so now, we'll count the 90th day as the beginning of the two-year running and so now we run it for two years and it's still may 12 or whatever. >> but your honor, a false

arrest claim under wallace accrues once process begins. so it's not running for that 90 days. >> why not? isn't he being held unlawfully on the 41st day and after all, we're not -- 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 aims, what the fourth amendment is geared to vindicate. the fourth amendment, this court has held, is there for the guilty and innocent alike, and in this case, what -- the cost of borrowing that favorable termination element and importing it into a claim based solely on lies at an ex parte proceeding, which is what we're talking about with the gerstein hearing, doing so would mean that if you're the victim of lies at a gerstein hearing and you're detained but ultimately

you are constitutionally convicted as evidence amasses against you, the need to show favorable termination, it will be impossible for that plaintiff. and so the fourth amendment right will not be something that that plaintiff can vindicate. that's the reason that 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 claim is now equally narrow. the way to resolve the case is to conclude that whenever this -- your fourth amendment claim could run through the arraignment after indictment in this case, which was still out of the two-year limitations period. but it doesn't -- it is not entitled to that favorable termination element which would have the effect of closing off the courthouse doors to a universe of claims in order to buy extra time in this case. and that is what we urge the court not to do. and that is the simplest way.

>> if you're falsely arrested, you have a good claim for false arrest, it doesn't matter that you were properly convicted. but if you were not only falsely arrested but if your detention continues, then you have a claim for the continued detention. >> for violation of the gerstein hearing, your honor, and i do, for lies at the gerstein, and i do want to be clear in saying that 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 limitation period or is there a tolling that runs from the period of the lie at the gerstein hearing through the pre-trial period. as i said at the outset, that is subject to traditional tort common law principles of

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

hearing that then led to ongoing pre-trial seizure. and the damages from that claim may run throughout the period of pre-trial 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 n brady, which is applied due process to prosecutorial duties and police duties during that period so i hope that answers your honor's question. whether or not those damages run throughout that period or whether they're reduced by virtue of an intervening cause would be an application of traditional proximate cause. >> are defendant's counsel ever present at a 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 to say -- which is the moment in time which this court has held you have a sixth amendment -- your sixth amendment right attaches. may i complete the answer, your honor? >> you have more? go ahead. >> thank you. so, i want to return to the point i was making, which is now -- i apologize. i don't know if i've answered your honor's -- >> i think you -- >> you were talking about that the gerstein hearing is often combined. >> it's often combined with the first appearance and the reason, actually, this court has contemplated that in roth, gary, and gerstein itself, it's often 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, counsel. >> thank you. >> mr. eisenhammer, you have three minutes remaining. >> thank you. just to 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 -- he would be protected in that situation. with respect to the seventh circuit's decision -- >> but there still is a fourth amendment violation. >> there's still a fourth amendment violation, but he would have qualified immunity if he acted with objective reasonableness. because that's -- the fourth amendment doesn't have any intent. you either violate it or not violate it. there's either probable cause or not. and then you could super impose qualified immunity. the seventh circuit would have said that there is -- 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 -- 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 a due process. >> so you -- 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 or the accrual point uses favorable termination in their due process cases. >> what happens in this situation? the person is initially arrested and held for a period of time based on fabricated ef, 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 in, i think it was footnote seven on suppression hearings or on evidence -- >> i'll say the tax -- the unlawful detention. >> but not the conviction. >> not the conviction. it would not be -- >> then i would say under heck, the heck exception, they could bring -- they could bring suit. >> but when would the claim accrue? >> i think it would accrue at that point. at the -- 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 -- to the individual to speculate on whether what evidence comes out at the trial to determine whether or not that really -- that probable cause determination may or may not attack the -- >> well, if 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 termination of the prosecution? >> because at the -- at the time it has occurred -- has occurred, you don't -- well, two reasons. you don't know if, at that time, whether or not it does attack the conviction. and second, you don't -- 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 -- the other issue is that you don't want parallel litigation going on or collateral attacks for many of the reasons that was -- was stated in cali. >> 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 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.

you can see all their appearances only c-span as well as many other supreme court videos available on demand. follow the supreme court on c-span.org. house majority leader kevin mccarthy sits down with "the washington post" tuesday to discuss the republican agenda for the new congress. that's live at 9:00 a.m. eastern on c-span 2. and later in the morning, a look at the global economy and trade policy. that's part of a day-long forum hosted by "the new york times." our live coverage begins just after 10:00 a.m. eastern on c-span. sunday on book tv's in depth, we're hosting a discussion on the december 1941 attack on pearl harbor on the eve of the 75th anniversary. on the program, steve twomey, author of countdown to pearl harbor, the 12 days to the attack, author of japan 1941, and craig nelson with his book, pearl harbor from infamy to

greatness, followed by an interview with pearl harbor survivor and co-author of all the gallant men. we're taking your phone calls, tweets, and e-mail questions live from noon to 3:00 p.m. eastern. go to book tv.org for the complete weekend schedule. now a look at the legacy of the late justice scalia. this discussion was moderated by 11th circuit judge william pryor who has been mentioned as a possible supreme court nominee. from the federalist society, this is an hour and a half.

all those who are coming in, please take your seats. we're going to get started. i'm john baker, i'm filling in for john eastman. john is on another panel in another room at this time. so, at this point, all i'm doing is welcoming you here on behalf of the separation of powers and federalism group of lawyers within the federalist society.