42 USC 1983 After Wallace v. Kato: What To Do Now

This is a hopefully going to be a short post. Last week (in fact the day after the court heard argument in Rita/Claiborne) it announced its decision in Wallace v. Kato. The issue effects both criminal lawyers and civil rights attorneys (or for those of us at The Law Offices of Anthony J. Colleluori & Associates, PLLC. both sides of our brains.)
Up until now it was always the procedure, that after a person was arrested (and imprisoned) he would be able to sue the government, whether or not he filed a notice of claim against the county, by alleging the same behavior(e.g. false arrest and unlawful imprisonment) through the use of a 42 USC 1983 suit. In the US District Courts in NY, The statute of limitations was always thought to be within three years of the end of his incarceration and his prosecution whichever came later.

NO MORE

The court in its decision in Wallace has changed a number of things dealing not only with filing but also with pleading the case.

1. False arrest is a subset of unlawful imprisonment.
2. The statute of limitations for a 42 USC 1983 claim arising from an unlawful imprisonment claim is as long as the time one has to file a personal injury suit in the state where the action accrues. In New York State, that means 3 years.
3. The date of accrual begins on the date of arrest and the tort ends at the time of arraignment.
4. All the damages that occur after arraignment are properly recompensed in a Malicious Prosecution based suit not by a false arrest/unlawful imprisonment cause of action.
5. While a Malicious Prosecution based suit's statues of limitations may be tolled by the case of Heck v. Humprey, 512 US 477(1994), actions for false arrest and unlawful imprisonment are not so tolled.

Now here's the thing, we all know that it is easier to win a false arrest/unlawful imprisonment case, because it does not require that we win the underlying criminal action. We can accept a dismissal that is favorable on the issue of the arrest not the prosecution (ACOD's [ACD's for NYC Guys]; Dismissal in the interest of Justice, speedy trial dismissals). Malicious Prosecution based causes of action, requires a favorable termination of the prosecution itself. So in order to preserve the clients right to compensation, we have to go to trial, or at least get a "full surrender" from the DA on the prosecution's merits(a "no true bill" from a grand jury counts.)

Remedies and Strategy:
A. File a notice of claim under all circumstances. IF the attorney for the criminal defendant is not the same one as the attorney on the 1983 action, the criminal attorney would do well to keep up with his colleagues and help him draft the notice of claim. The criminal attorney should also warn the defendant about his rights to the civil rights action, otherwise he chances a malpractice suit.

B. At the very least, send a letter to the county attorney or city corporation counsel. Be sure to set out the date of occurrence, the participants and give enough information to put the county on notice of what they need to defend themselves. (One reason given for the need to file within three years of accrual is so the government will be able to gather the necessary evidence to defend itself. Hence even if you are too late to file a normal notice of claim, either file one late and as soon as possible or send a letter which follows that statute.) This is not to say a that such a letter is now a condition precedent to file a 42 USC 1983 claim, it isn't.

C. When stating damages for the false arrest and unlawful imprisonment claim, allege the further detention and prosecution of the plaintiff constituted "consequential damages" attributable to the false arrest.

D. Name the complainant in the action even if you will later not try to collect the judgment from her because of non deep pockets.

E. Bring the lawsuit timely. The court will stay the action pursuant to Quackenbush v. Allstate, 517 US 706 (1996).

F. If the client should lose in the criminal prosecution, the False Arrest/Unlawful Imprisonment case will be dismissed.THIS IS NOT THE END OF THE CASE. Notify the client that IF the case is later overturned he must immediately seek to refile the case in the US District Court. It seems he should have at least 90 days to do so, but get it done as quickly as possible. The Wallace decision in footnote 4 states that the Heck bar is not an immunity granting vehicle. The District Court should grant the defendant time to refile. I imagine that the period would be equivalent to the period under the FRCP to file in state court if the federal claims are dismissed, but the court did not say how long he has in the Wallace decision.

Remember that these changes are immediate so get to work to protect the rights of the wrongfully accused.