                              In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 03-1490
REGINALD WILEY,
                                                  Plaintiff-Appellant,
                                  v.


CITY OF CHICAGO and BRODERICK JONES, #17432,
CHICAGO POLICE OFFICER,
                                  Defendants-Appellees.

                          ____________
             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
               No. 02 C 6076—Paul E. Plunkett, Judge.
                          ____________
    ARGUED NOVEMBER 12, 2003—DECIDED MARCH 22, 2004
                          ____________


  Before BAUER, MANION, and ROVNER, Circuit Judges.
   MANION, Circuit Judge. Reginald Wiley alleges that for
several years Chicago police officer Broderick Jones has
been framing innocent citizens and arresting them without
cause. According to Wiley, Jones’s routine in each case is the
same: he and his partner approach a suspected drug dealer;
if a search fails to reveal any incriminating evidence, they
plant drugs on him and profess that he was engaged in
illegal activity. Wiley claims that in January 2000 he was the
victim of one of Jones’s frame-ups. He was arrested and
prosecuted for possession of narcotics, though the charge
2                                                 No. 03-1490

was eventually dismissed in July 2002. One month later
Wiley sued Jones and the City of Chicago under 42 U.S.C. §
1983 for “wrongful prosecution,” alleging that Jones
fabricated evidence in order to arrest him and thereafter
misrepresented his guilt to prosecutors. Wiley further
alleged that Jones was able to accomplish his misdeeds by
virtue of the City’s deliberate indifference to its officers’
conduct.
  The district court dismissed Wiley’s suit for failure to state
a claim. Fed. R. Civ. P. 12(b)(6). The court understood Wiley
to be asserting that he was prosecuted without probable
cause, a cause of action under § 1983 that we rejected in
Newsome v. McCabe, 256 F.3d 747, 750-51 (7th Cir. 2001). The
court allowed that even if Wiley did not have a claim in
federal court for wrongful or malicious prosecution, the
alleged conduct might still be actionable if it violated a sub-
stantive constitutional right, like the due process right to a
fair trial. But despite Wiley’s contention that his fair trial
rights had been violated, the court concluded that Wiley did
not have any such claim. Wiley moved to amend the
judgment, Fed. R. Civ. P. 59(e), arguing that the court had
overlooked his Fourth Amendment claim against Jones. The
district court construed Wiley’s Fourth Amendment claim
as one for false arrest and denied the motion. Citing
Snodderly v. R.U.F.F. Drug Enforcement Task Force, 239
F.3d 892 (7th Cir. 2001), the court held that any Fourth
Amendment cause of action against Jones began to accrue
at the time of arrest and so Wiley’s claim—filed more than
two years after his arrest—was untimely, Gonzales v. Entress,
133 F.3d 551, 554 (7th Cir. 1998) (statute of limitations on
civil rights action is two years in Illinois).
  On appeal both parties agree that if Jones arrested Wiley
on the basis of planted “evidence,” Wiley would have a
Fourth Amendment claim for false arrest. What the parties
No. 03-1490                                                  3

dispute is when Wiley’s claim began to accrue. Wiley argues
that the two-year statute of limitations did not begin to run
until the charges against him were dismissed; the defen-
dants maintain that his claim began to accrue at the time of
the arrest and must now be barred as untimely.
  We begin with first principles and therefore start our
discussion with Heck v. Humphrey, 512 U.S. 477 (1994). Heck
bars any suit for damages premised on a violation of civil
rights if the basis for the suit is inconsistent with or would
undermine the constitutionality of a conviction or sentence.
Id. at 486-87. Should success in a civil suit necessarily imply
the invalidity of a conviction or sentence, Heck requires the
potential plaintiff to wait until his conviction is nullified
before bringing suit. Id. This rule applies not only to con-
victed persons but also to plaintiffs like Wiley who as yet
only face prosecution. Gonzales, 133 F.3d at 553. “If success
on the [defendant’s] claims would have necessarily implied
the invalidity of a potential conviction on the . . . charge,
then [defendant’s] claims did not accrue until the day on
which the . . . charge was dismissed.” Washington v.
Summerville, 127 F.3d 552, 556 (7th Cir. 1997). So if a pris-
oner or an individual facing prosecution seeks damages
using § 1983 for an alleged violation of his civil rights, a
district court must first determine whether “a judgment in
favor of the plaintiff would necessarily imply the invalidity”
of the plaintiff’s actual or potential conviction. Heck, 512
U.S. at 487. If it would, then the suit is barred and the
complaint must be dismissed. Id.
  Following Heck, this court has often held that civil rights
claims of false or wrongful arrest arising out of the Fourth
Amendment begin to accrue at the time of arrest regardless
of subsequent proceedings. See, e.g., Copus v. City of
Edgerton, 151 F.3d 646, 648-49 (7th Cir. 1998); Booker v. Ward,
94 F.3d 1052, 1056 (7th Cir. 1996); Simpson v. Rowan, 73 F.3d
4                                                 No. 03-1490

134, 136 (7th Cir. 1995). The rationale behind this approach
is that a wrongful arrest claim does not necessarily under-
mine a conviction; “one can have a successful wrongful
arrest claim and still have a perfectly valid conviction.”
Booker, 94 F.3d at 1056; see also Gonzales, 133 F.3d at 553;
Washington, 127 F.3d at 556. Therefore, generally speaking,
claims for wrongful arrest may be brought immediately
because “the injury of being detained illegally is compensa-
ble regardless of whether the plaintiff is later convicted or
even prosecuted.” Snodderly, 239 F.3d at 897.
   But this general approach must not be understood as a
rule to be applied in every case. The defendants urge us to
view our cases such as Booker, Washington, and Gonzales as
creating an invariable rule that false arrest claims under the
Fourth Amendment accrue at the time of arrest. Such may
be the case most of the time, but not always. For while we
recognize that discussion in our earlier decisions may have
implied such a rule, see Gauger v. Hendle, 349 F.3d 354, 361
(7th Cir. 2003), the accrual of the civil rights claims brought
in this and other cases is ultimately governed by the
Supreme Court’s decision in Heck. And as we recently
explained in Gauger, because “sometimes a successful chal-
lenge to a false arrest can indeed impugn the validity of the
plaintiff’s conviction,” Heck may in fact occasionally bar a
civil rights claim premised on a false or wrongful arrest. Id.
As a result, plaintiffs complaining of false arrest will some-
times have to wait until their criminal charge or conviction
is set aside or dismissed before they can bring suit. See id.
  This may be one of those times. If, as alleged, Wiley was
arrested and prosecuted solely on the basis of drugs planted
by the arresting officers, then any attack on the arrest would
necessarily challenge the legality of a prosecution premised
on the planted drugs. See id. at 362. Therefore, any civil suit
against Officer Jones for a false arrest would necessarily
No. 03-1490                                                 5

imply the invalidity of a potential conviction, and Heck
requires that Wiley’s Fourth Amendment claim would not
begin to accrue until the charges were dismissed. See Heck,
512 U.S. at 489-90; Washington, 127 F.3d at 556. Of course
had Wiley been prosecuted on evidence (other than the
planted drugs) that would not be invalidated if he success-
fully challenged his arrest, then Wiley’s false arrest claim
would not be barred by Heck and would be untimely. See
Gonzales, 133 F.3d at 553-54. Because at this stage in the
proceedings we accept Wiley’s allegations as true, see
McCullah v. Gadert, 344 F.3d 655, 657 (7th Cir. 2003), we
remand this case with instructions to reinstate Wiley’s
Fourth Amendment claim against Jones for false arrest.
   The conclusion we reach here is supported by our recent
decision in Gauger. Gary Gauger had been convicted of
murder based on statements he made to detectives during
an 18-hour interrogation. Gauger, 349 F.3d at 356-57. His
conviction was overturned on grounds that his statements
were inadmissable because the officers lacked probable
cause to arrest him in the first place. Id. at 357. Although
more than two years had passed from the time of his un-
lawful arrest until the filing of his § 1983 complaint, we
deemed Gauger’s claim timely. Id. at 362. For Gauger to
attack his arrest, we reasoned, “was implicitly to challenge
the legality of his conviction, which rested crucially on the
statements that he made to the police when he was ques-
tioned after being arrested.” Id. at 361. Therefore, because
Heck barred him from challenging his arrest until he had his
conviction overturned, his false arrest claim did not begin
to accrue until he had done so. Id. at 361-62. Similarly here,
if Wiley’s attack on his arrest would challenge the only
evidence supporting a potential conviction, then his claim
did not begin to accrue until the charges were dismissed in
July 2002. See id.
6                                                 No. 03-1490

  For guidance on remand, we also consider the scope of
Wiley’s claim. Wiley contends that his Fourth Amendment
claim encompasses not only the false arrest but also his
subsequent “wrongful prosecution,” which Jones allegedly
initiated and extended by lying to prosecutors. Wiley argues
that we should consider him to have been wrongfully
detained under the “continuing seizure” approach set forth
by Justice Ginsburg, who suggested that a defendant ought
to be considered “seized” under the Fourth Amendment “so
long as he is bound to appear in court and answer the state’s
charges.” Albright v. Oliver, 510 U.S. 266, 279 (1994)
(Ginsburg, J., concurring).
  But we have repeatedly rejected the “continuing seizure”
approach. McCullah, 344 F.3d at 661; Lee v. City of Chicago,
330 F.3d 456, 463 (7th Cir. 2003); Reed v. City of Chicago, 77
F.3d 1049, 1052 n.3 (7th Cir. 1996); Wilkins v. May, 872 F.2d
190, 194 (7th Cir. 1989). Instead, we have held that the scope
of a Fourth Amendment claim is limited up until the point
of arraignment; “the interest in not being prosecuted
groundlessly is not an interest that the Fourth Amendment
protects.” Gauger, 349 F.3d at 362-63. Once arraigned, the
prosecution is underway. If that prosecution is at some
point deemed malicious, then it “is not a constitutional tort
unless the state provides no remedy for malicious prose-
cution.” Id. at 359. But at oral argument Wiley’s counsel
insisted that his case was not one for malicious prosecution.
  One final matter remains. Although Wiley alleged in his
complaint that the City of Chicago was deliberately indif-
ferent to the misconduct of its police officers, he has waived
this claim by failing to advance it on appeal. See Duncan v.
Wis. Dep’t of Health & Family Serv., 166 F.3d 930, 934 (7th Cir.
1999).
  We therefore remand this case to the district court with
instructions to reinstate Wiley’s Fourth Amendment false
arrest claim against Officer Jones. The scope of this claim,
No. 03-1490                                                7

should Wiley prevail on its merits, is limited to the time
from his arrest until he was charged.
    AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

A true Copy:
       Teste:

                         _____________________________
                          Clerk of the United States Court of
                            Appeals for the Seventh Circuit




                   USCA-02-C-0072—3-22-04
