                                                                                                                           Opinions of the United
2000 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-13-2000

Hector v. Watt
Precedential or Non-Precedential:

Docket 00-3084




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Filed December 13, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 00-3084

EUGENE HECTOR,

       Appellant

v.

GORDON J. WATT; ALBERTO DIAZ; RICHARD DAVY;
SCOTT HUNTER, in their individual and official capacities

On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil No. 97-cv-01410)
District Judge: Honorable William L. Standish

Argued October 5, 2000

Before: NYGAARD, GREENBERG and COWEN,
Circuit Judges

(Filed December 13, 2000)

       Michael L. Rosenfield, Esq. (Argued)
       1808 Law & Finance Building
       Pittsburgh, PA 15219

       John Stember, Esq.
       429 Forbes Avenue
       Allegheny Building
       Pittsburgh, PA 15219

        Counsel for Appellant
       John G. Knorr, III, Esq.
       Calvin R. Koons, Esq. (Argued)
       Office of the Attorney General
        of Pennsylvania
       Strawberry Square
       15th Floor
       Harrisburgh, PA 17120

       Rodney M. Torbic, Esq.
       Office of the Attorney General
        of Pennsylvania
       564 Forbes Avenue
       Manor Complex
       Pittsburgh, PA 15219

        Counsel for Appellees

OPINION OF THE COURT

COWEN, Circuit Judge:

In previous criminal proceedings Eugene Hector
successfully argued that several state tr oopers violated the
Fourth Amendment when they seized over 80 pounds of
hallucinogenic mushrooms from Hector's airplane in
Dubois, Pennsylvania. Once the drugs were suppr essed and
the prosecution dismissed, Hector initiated this S 1983
action against the four appellants, Officers Gor don Watt,
Alberto Diaz, Richard Davy, and Scott Hunter . The officers'
request for qualified immunity has alr eady been denied and
the order affirmed. Hector v. W att, 203 F.3d 817 (3d Cir.
1999) (unpublished table decision).

The narrow issue presented in this appeal is what type of
damages Hector can obtain under the Fourth Amendment.
Hector has abandoned any claim for damages fr om the
search itself and instead seeks compensation solely for
expenses he incurred during his criminal pr osecution--
$3,500 in bail-bond expenses, $23,000 in attor ney's fees,
and $2,000 for travel between Pennsylvania and his home
in California. The District Court held that Hector could not
collect those litigation costs. We will affirm.

                                2
I

The Supreme Court has "repeatedly noted that 42 U.S.C.
S 1983 creates a species of tort liability." Heck v. Humphrey,
512 U.S. 477, 483, 114 S.Ct. 2364, 2370 (1994) (quoting
Memphis Community School Dist. v. Stachura, 477 U.S. 299,
305, 106 S.Ct. 2537, 2542 (1986) (internal quotation marks
omitted)). Given this close relation betweenS 1983 and tort
liability, the Supreme Court has said that the common law
of torts, "defining the elements of damages and the
prerequisites for their recovery, pr ovide[s] the appropriate
starting point for inquiry under S 1983 as well." Heck, 512
U.S. at 483, 114 S.Ct. at 2370 (quoting Car ey v. Piphus,
435 U.S. 247, 257-58, 98 S.Ct. 1042, 1049 (1978)). The
Supreme Court applied this rule in Heck to an inmate's
S 1983 suit, which alleged that county pr osecutors and a
state police officer destroyed evidence, used an unlawful
voice identification procedure, and engaged in other
misconduct. In deciding whether the inmate could state a
claim for those alleged violations, the Supr eme Court asked
what common-law cause of action was the closest to the
inmate's claim and concluded that "malicious pr osecution
provides the closest analogy . . . because unlike the related
cause of action for false arrest or imprisonment, it permits
damages for confinement imposed pursuant to legal
process." Heck, 512 U.S. at 484, 114 S.Ct. at 2371. Looking
to the elements of malicious prosecution, the Court held
that the inmate's claim could not proceed because one
requirement of malicious prosecution is that the prior
criminal proceedings must have terminated in the
plaintiff 's favor, and the inmate in Heck had not
successfully challenged his criminal conviction. Id.

Although Hector is not seeking damages for
imprisonment following a conviction, as in Heck , he is still
seeking to recover costs incurred while defending against a
prosecution, relief that the common law made available
exclusively under malicious prosecution. As the Supreme
Court has explained, false arrest or imprisonment, the only
other cause of action under the common law that could
apply to a wrongful arrest and its consequences, provides
damages "up until issuance of process or arraignment, but
not more." Id. (quoting W . Keeton, D. Dobbs, R. Keeton, &

                               3
D. Owen, Prosser and Keeton on the Law of T orts 888 (5th
ed. 1984)).

Given the Supreme Court's mandate that we look to
similar common-law causes of action, Hector appears to be
on the horns of a dilemma. If his claim is categorized as
being like false arrest, then his claim fails because false
arrest does not permit damages incurr ed after an
indictment, excluding all the damages he seeks. But if his
claim is treated as resembling malicious prosecution, then
he would face the problem that a plaintif f claiming
malicious prosecution must be innocent of the crime
charged in the underlying prosecution."Even if the plaintiff
in malicious prosecution can show that the defendant acted
maliciously and without probable cause in instituting a
prosecution, it is always open to the defendant to escape
liability by showing in the malicious prosecution suit itself
that the plaintiff was in fact guilty of the offense with which
he was charged." Prosser and Keeton, supra, at 885 (citing
Restatement of Torts S 657). This r equirement can bar
recovery even when the plaintiff was acquitted in the prior
criminal proceedings, for a verdict of not guilty only
establishes that there was not proof beyond a reasonable
doubt. Id.

Hector may believe, plausibly enough, that his claim is
really more like a simple claim of tr espass. We agree that
he has not in fact brought a claim for false arrest or
malicious prosecution. And for that reason, we do not need
to address the complexities of our jurisprudence on
malicious prosecution under S 1983. Compare Torres v.
McLaughlin, 163 F.3d 169 (3d Cir. 1998), cert. denied, ___
U.S. ___, 120 S.Ct. 797 (2000) (rejecting a claim for
malicious prosecution under the Fourth Amendment), with
Gallo v. City of Philadelphia, 161 F.3d 217 (3d Cir. 1998)
(reversing dismissal of a claim for malicious prosecution
under the Fourth Amendment and holding that r estrictions
on a plaintiff 's liberty post-indictment constituted a seizure
triggering Fourth Amendment rights). See also Albright v.
Oliver, 510 U.S. 266, 272, 114 S.Ct. 807, 807 (1994)
(rejecting claim for malicious prosecution based on
substantive due process); Merkle v. Upper Dublin School
Dist., 211 F.3d 782, 792-93 (3d Cir . 2000) (discussing

                               4
Albright's impact on S 1983 claims for malicious
prosecution). Other cases have evaluated various
restrictions on malicious prosecution under S 1983. See,
e.g., Wilson v. Russo, 212 F .3d 781 (3d Cir. 2000);
Montgomery v. De Simone, 159 F.3d 120 (3d Cir. 1998);
Sherwood v. Mulvihill, 113 F.3d 396 (3d Cir. 1997); Rose v.
Bartle, 871 F.2d 331 (3d Cir. 1989).

If Hector's claim is treated like trespass, however, then he
fails to identify any common-law authority appr oving of the
damages he seeks. His difficulty in finding authority is
easily explained, for the exclusionary rule was not part of
the common law. Justice Story stated this point plainly: "In
the ordinary administration of municipal law the right of
using evidence does not depend, nor, as far as I have any
recollection, has ever been supposed to depend upon the
lawfulness or unlawfulness of the mode, by which it is
obtained. . . . [T]he evidence is admissible on charges for
the highest crimes, even though it may have been obtained
by a trespass upon the person, or by other for cible and
illegal means." United States v. La Jeune Eugenie, 26 F.
Cas. 832, 843-44 (C.C.D. Mass. 1822). See also Akhil Reed
Amar, The Constitution and Criminal Pr ocedure 20-25
(1997) (reviewing historical evidence on the development of
the exclusionary rule).

Pointedly, Amar's book adds that a "two-century tradition
of civil damage actions in America" prohibited a plaintiff
who was subjected to an illegal search fr om collecting
damages for any prosecution, conviction, and incarceration
resulting from the search. Id. at 27. The plaintiff was
limited to damages for the search itself. Id.

But analogies to the common law are not all that guide
our decision. We do not venerate, for example, the common
law rule that "upon marriage, the wife's identity merged
with that of her husband. . . . plac[ing] the wife under a
number of disabilities." Prosser and Keeton, supra, at 901.
In Heck the Supreme Court said that the common law of
torts was the starting point, not the only consideration, in
analyzing a claim under S 1983. Thus, in justifying the
result in Heck, the Court explained that allowing prisoners
to challenge their convictions through S 1983 would
undermine settled law of habeas corpus. Cf. Montgomery,

                                5
159 F.3d at 124 ("In determining whether a certain
common law concept governs a section 1983 action, the
[Supreme] Court has been guided by the extent to which
the common law rule is rooted in history and r eason and
whether the policies it serves are compatible with the
purposes of section 1983."). Once we turn to these
additional considerations, it is clear that Hector's claim
must fail.

One pivotal consideration is that in Car ey the Supreme
Court stated that the damages available under S 1983
depend on the type of constitutional right asserted:

       [T]he elements and prerequisites for recovery of
       damages appropriate to compensate injuries caused by
       the deprivation of one constitutional right ar e not
       necessarily appropriate to compensate injuries caused
       by the deprivation of another. As we have said, these
       issues must be considered with refer ence to the nature
       of the interests protected by the particular
       constitutional right in question.

Carey, 435 U.S. at 264-65, 98 S.Ct. at 1053. When we
reflect on the interests protected by the Fourth
Amendment, we believe that it follows that a plaintiff
cannot recover the litigation expenses incurr ed because
police officers discovered criminal conduct during an
unconstitutional search. As the Second Cir cuit has said in
a case much like ours, "The evil of an unr easonable search
or seizure is that it invades privacy, not that it uncovers
crime, which is no evil at all." Townes v. City of New York,
176 F.3d 138, 148 (2d Cir. 1999). If Carey instructs that we
should assess liability in terms of the risks that are
constitutionally relevant, then damages for an unlawful
search should not extend to post-indictment legal process,
for the damages incurred in that process are too unrelated
to the Fourth Amendment's privacy concerns. W e agree
with Townes: "Victims of unr easonable searches or seizures
may recover damages directly related to the invasion of
their privacy--including (where appropriate) damages for
physical injury, property damage, injury to r eputation, etc.;
but such victims cannot be compensated for injuries that
result from the discovery of incriminating evidence and
consequent criminal prosecution." 176 F .3d at 148.

                                6
II

Our conclusion that Carey and Heck require the result
we reach is supported by the Supreme Court's
jurisprudence on the exclusionary rule. The Supr eme Court
has made clear in many cases that the exclusionary rule is
not "a personal constitutional right of the party aggrieved."
United States v. Peltier, 422 U.S. 531, 538, 95 S.Ct. 2313,
2318 (1975) (quoting United States v. Calandra , 414 U.S.
338, 348, 94 S.Ct. 613, 620 (1974)). As a result, the Court
has recognized many exceptions where the exclusionary
rule does not apply.

Most recently, for example, the Supreme Court has said
that the exclusionary rule does not apply to par ole
revocation hearings. Pennsylvania Boar d of Probation and
Parole v. Scott, 524 U.S. 357, 118 S.Ct. 2014 (1998). The
Court has also refused to suppress evidence that police
officers discovered when they were r easonably relying on a
search warrant that was later held invalid, United States v.
Leon, 468 U.S. 897, 104 S.Ct. 3405 (1985); r efused to apply
the exclusionary rule in a civil deportation hearing, I.N.S. v.
Lopez-Mendoza, 468 U.S. 1032, 104 S.Ct. 3479 (1984);
created a "public safety" exception to the timing of Miranda
warnings, New York v. Quarles, 467 U.S. 649, 104 S.Ct.
2626 (1984); created an "inevitable discovery" exception to
admit evidence that would have otherwise been excluded,
Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501 (1984);
allowed prosecutors to use during cross-examination
evidence obtained in violation of the Fourth Amendment,
United States v. Havens, 446 U.S. 620, 100 S.Ct. 1912
(1980); refused to exclude evidence obtained during an
arrest pursuant to a statute later held unconstitutional,
Michigan v. DeFillippo, 443 U.S. 31, 99 S.Ct. 2627 (1979);
allowed the government to use in civil tax pr oceedings
evidence seized in violation of the Fourth Amendment,
United States v. Janis, 428 U.S. 433, 96 S.Ct. 3021 (1976);
rejected relief under habeas corpus for Fourth Amendment
violations, Stone v. Powell, 428 U.S. 484, 96 S.Ct. 3037
(1976); rejected retroactive application of a Supreme Court
opinion concerning warrantless searches of cars, even
though the petitioner's appeal was pending when the
decision was announced, United States v. Peltier , 422 U.S.

                               7
531, 95 S.Ct. 2313 (1975); held that a witness befor e a
grand jury could not refuse to answer questions that were
based on evidence obtained in violation of the Fourth
Amendment, United States v. Calandra, 414 U.S. 338, 94
S.Ct. 613 (1974); and allowed unlawfully seized evidence to
be used to impeach the credibility of a defendant who
testified in his defense, Walder v. United States, 347 U.S.
62, 74 S.Ct. 354 (1954). The list could go on.

We are not of course drawing into question whether the
exclusionary rule was properly applied in Hector's criminal
case. The issue we must resolve is whether Hector can
continue to benefit from the exclusionary rule in his S 1983
suit and be relieved of defense costs fr om a prosecution
that was terminated only because of the exclusionary rule.

In deciding whether we will recognized this"continued"
application of the exclusionary rule in Hector's civil suit, we
must evaluate what other interests will be af fected by such
an extension of the rule. The Supreme Court invoked this
broader perspective in Stone:

       The judgment in Walder revealed most clearly that the
       policies behind the exclusionary rule are not absolute.
       Rather, they must be evaluated in light of competing
       policies. In that case, the public interest in
       determination of truth at trial was deemed to outweigh
       the incremental contribution that might have been
       made to the protection of Fourth Amendment values by
       application of the rule.

Stone v. Powell, 428 U.S. at 488, 96 S.Ct. at 3049.

Many of the cases cited above, such as Stone, emphasize
that the point of the exclusionary rule is to deter violations
of the Fourth Amendment and then conclude that applying
the exclusionary rule to the class of cases befor e the Court
--habeas cases, for example--would not significantly
increase the deterrent effect of the rule.

Under this logic, Hector can reasonably ar gue that
imposing substantial financial liability on officers would
add measurably to the deterrent effect of the exclusionary
rule. And while the loss to the truth-seeking function of
trials (the countervailing consideration often cited by the

                               8
Supreme Court) may be a persuasive reason for admitting
evidence already discovered, the truth-seeking function of
trials is a much less convincing reason for opposing greater
deterrence of future constitutional violations. Once we
agree that the police should adhere to the Fourth
Amendment, we must accept that the police will for ego
evidence that only would have been discovered through an
unconstitutional search.

Despite these arguments supporting greater deterrence,
Stone tells us that there are a variety of policy concerns to
weigh. One policy concern in our case is that the
magnitude of the liability that Hector's theory would impose
would often have very little to do with the seriousness of
the Fourth Amendment violation. What is often obscur ed by
the Fourth Amendment's prominent role in criminal
proceedings is that, as Townes suggested, we judge the
gravity of Fourth Amendment violations not by the
probative value of the evidence uncover ed, but by the
degree of the privacy invasion.

For example, if police officers barged into someone's
house without a warrant or probable cause, ransacked all
the rooms, and on a whim shot the homeowner's dogs, that
would be a very serious invasion of privacy, r egardless of
whether evidence of criminal wrongdoing was unearthed. If
on the other hand an officer who was conducting a lawful
frisk of someone decided to open a small package, like a
wallet, when there was insufficient justification for doing
so, the officer's unconstitutional search would cause only a
minimal intrusion of privacy, even if it uncover ed evidence
of massive criminal wrongdoing, leading to pr otracted and
expensive criminal prosecutions.

Under Hector's theory, however, the officer who took a
frisk one modest step too far could face vast liability,
liability that bears no relationship to the seriousness of the
invasion of privacy. We recognize that tort law does not
require that damages remain strictly proportional to fault;
the famous eggshell-skull rule is an illustration. See, e.g.,
Jenson v. Eveleth Taconite Co, 130 F .3d 1287, 1294 (8th
Cir. 1997); Avitia v. Metropolitan Club of Chicago, 49 F.3d
1219, 1227 (7th Cir. 1995). Another example is that a
tortfeasor pays more in lost wages when the injured victim

                               9
has a higher income. And the Supreme Court has endorsed
the rule that courts "should read [S 1983] against the
background of tort liability that makes a man r esponsible
for the natural consequences of his actions." Malley v.
Briggs, 475 U.S. 335, 344-45 n.7, 106 S.Ct. 1092, 1098 n.
7 (1986) (quoting Monroe v. Pape, 365 U.S. 167, 197, 81
S.Ct. 473, 484 (1961)).

But these considerations are not decisive. As Heck
emphasized, we are evaluating liability in a context where
the common law would not allow damages for false arr est
after an indictment and would prevent a plaintiff who was
in fact guilty from obtaining relief for malicious
prosecution. We are also considering liability that bears at
best a tenuous connection to the interests pr otected by the
Fourth Amendment. Because the caselaw makes clear that
we should keep in mind the interests pr otected by the
constitutional provision, and should weigh competing
policies in designing remedies for Fourth Amendment
violations, we think it is reasonable to r ecognize that the
liability Hector seeks under S 1983 could often have little
relation to the seriousness of the Fourth Amendment
violation.

Our point is not that officers should be fr ee from liability
for invasions of privacy, or even for comparatively minor
ones. We are assuming here that a constitutional violation
occurred and qualified immunity does not apply. The point
is that given the social importance of police enfor cement,
we think it is irresponsible to impose potential liability out
of proportion to the errors committed. The resources any
community has to devote to police protection ar e scarce,
and Hector's way of calibrating liability would misallocate
those limited resources by focusing on the wrong types of
errors, while at the same time having the unfortunate
consequence of reducing the cost of misconduct to
criminals. To allow damages so out of pr oportion to the
privacy invasion would not be consistent with the br oad
principles animating qualified immunity. See, e.g., Harlow
v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727 (1982).

We also think it is significant that all of the scholarly
authority that we have found runs against Hector's
position. See Akhil Reed Amar, supra, at 27-29; Douglas

                                10
Laycock, Modern American Remedies: Cases and Materials
143 (2d ed. 1994); William J. Stuntz, W arrants and Fourth
Amendment Remedies, 77 Va. L. Rev. 881, 900-01 (1991);
John C. Jeffries, Jr., Damages for Constitutional Violations,
75 Va. L. Rev. 1461, 1474-76 (1989); Daniel J. Meltzer,
Deterring Constitutional Violations by Law Enforcement
Officials 88 Colum. L. Rev. 247, 270 (1988); Richard A.
Posner, Rethinking the Fourth Amendment, 1981 Sup. Ct.
Rev. 49, 50-53.

We recognize that a district court opinion in this circuit
has held that a plaintiff who was convicted as a result of an
illegal search could seek post-indictment damages for his
conviction and incarceration solely on the basis of the
illegal search. See Carter v. Georgevich, 78 F. Supp.2d 332
(D.N.J. 2000). But we do not find the reasoning of that case
to be persuasive.

III

The officers have argued that proximate causation
provides an alternative ground for affirming. More
specifically, they claim that the prosecutor's and grand
jury's decisions to indict Hector were super ceding or
intervening causes that broke the causal connection
between the Fourth Amendment violation and Hector's
subsequent expenses in mounting a legal defense.

The officers are correct that we have applied the common
law of proximate causation to S 1983 claims, see, e.g.,
Hedges v. Musco, 204 F.3d 109, 121 (3d Cir. 2000), and in
particular that we have applied the concept of intervening
causes to a S 1983 action for Fourth Amendment violations.
See Bodine v. Warwick, 72 F.3d 393, 400 (3d Cir. 1995).

In Bodine, for example, the plaintif f alleged that police
officers illegally entered his house and used excessive force
as they tried to arrest him. We held that the illegal entry
did not make the officers automatically liable for any
injuries caused by the arrest. Invoking pr oximate
causation, we explained that if the officers' use of force was
reasonable given the plaintiff 's acts, then despite the illegal
entry, the plaintiff 's own conduct would be an intervening
cause that limited the officers' liability. For the plaintiff to

                                11
recover all the damages he sought, we said that he had to
prove two torts--one for the illegal entry and a second for
excessive force.

While Bodine's insistence that the plaintif f must prove
two torts bears some family resemblance to our conclusion
that Hector cannot use the illegal search alone to obtain
relief for what is in essence a claim for malicious
prosecution, Bodine's superceding cause does not apply
here. The officers are not alleging that any of Hector's
conduct counts as an intervening cause; instead, they
claim that the prosecutor's and grand jury's decisions to
indict were the intervening cause.

The problem with the officers' theory is that there is a
great deal of tension in the caselaw about when official
conduct counts as an intervening cause. The Second
Circuit has carefully described these tensions in a recent
opinion, Zahrey v. Coffey, 221 F.3d 342, 349-55 (2d Cir.
2000), and observed that the most closely analogous
Supreme Court decision rejected a pr oposed intervening
cause. See Malley v. Briggs, 475 U.S. at 344-45 n.7, 106
S.Ct. at 1098 n.7. The plaintiff in Malley had brought a
S 1983 suit against a police officer for submitting
insufficient evidence for a search warrant. In allowing the
plaintiff 's suit to proceed, the Supr eme Court expressly
stated that the judicial officer's decision to issue a warrant
did not break the "causal chain between the application for
the warrant and the improvident arrest." Malley v. Briggs,
475 U.S. at 344-45 n.7, 106 S.Ct. at 1098 n.7.

Not long after Malley, the Second Cir cuit rejected that a
prosecutor or grand jury's decision was an intervening
cause. See White v. Frank, 855 F.2d 956, 962 (2d Cir. 1988)
("As with the grand jury . . . the public pr osecutor's role in
a criminal prosecution will not necessarily shield a
complaining witness from subsequent civil liability where
the witness's testimony is knowingly and maliciously
false."). The Second Circuit has also held that a sentencing
judge's decision did not break the causal chain between the
wrongful recommendation of a probation officer and an
unconstitutional sentence. Warner v. Orange County Dep't
of Probation, 115 F.3d 1068, 1071 (2d Cir. 1997), reinstated

                               12
after opinion vacated, 173 F.3d 120, 121 (2d Cir.), cert.
denied, ___ U.S. ___, 120 S.Ct. 495 (1999).

By contrast, in Townes the Second Cir cuit found that a
judge's decision not to suppress evidence was an
intervening cause, see 176 F.3d at 146-47, and the Fifth
Circuit has held that the decisions of an FBI agent,
prosecutor, and grand jury acted as an intervening cause.
See Hand v. Gary, 838 F.2d 1420, 1427-28 (5th Cir. 1988).
The Ninth Circuit has likewise invoked a pr osecutor's
decision as an intervening cause. Smiddy v. V arney, 665
F.2d 261, 266-68 (9th Cir. 1981), adhered to, 803 F.2d
1469, 1471-72 (9th Cir. 1986). And Zahr ey listed many
more cases, yielding few coherent principles.

As we recently observed, albeit not in the context of
S 1983 actions, the Supreme Court "has repeatedly noted
that `proximate cause is hardly a rigor ous analytic tool.' "
Steamfitters Local, 420 v. Philip Morris, Inc., 171 F.3d 912,
922 (3d Cir. 1999) (quoting Blue Shield v. McCready, 457
U.S. 465, 477 n.13, 102 S.Ct. 2540, 2547 n. 13 (1982)).
Given that the cases on intervening causes ar e legion and
difficult to reconcile, as Zahrey shows, and that we have
other, sufficient grounds for r esolving this case, we will not
reach the issue of intervening causation. W e have no reason
to use this case as a vehicle for effectively deciding, for
example, that a S 1983 plaintiff who was the victim of
fabricated evidence can never sue for damages incurr ed
after a prosecutor's decision to indict. W e leave such
matters for another day.

IV

For the foregoing reasons, the District Court's judgment
of January 25, 2000, will be affirmed.1
_________________________________________________________________

1. After Hector abandoned all claims for damages from the stop itself, the
officers requested in their motion for summary judgment that the
District Court enter a one-dollar award in Hector's favor as nominal
damages for the Fourth Amendment violation. W e need not address the
propriety of that award, given Hector's abandonment of all compensable
damages and given that the officers themselves sought the award and
did not cross-appeal from it.

                               13
NYGAARD, Circuit Judge, concurring :

While I agree with the majority's conclusion that Hector
cannot recover the expenses he incurred as a result of his
criminal prosecution, I would reach this disposition more
directly via a causation analysis.

I must first recount the relevant facts. Officers Watt,
Diaz, Davy, and Scott unlawfully detained Hector , his
companion, and his personal aircraft at the
Dubois/Jefferson County airport for several hours without
a warrant. The officers did, however, ultimately obtain a
warrant from a magistrate and it was only after they
secured this warrant that they searched Hector's aircraft
and recovered eighty-one pounds of hallucinogenic
mushrooms. Based exclusively on this seized contraband,
Hector was charged in state court with possession with the
intent to distribute the controlled substance. The charges
were withdrawn in state court after a federal grand jury
indictment, and Hector filed a motion to suppr ess the
seized mushrooms based on the officers' violation of his
Fourth Amendment right to be free from unr easonable
searches and seizures. The District Court granted Hector's
motion to suppress after a four day hearing, and the
charges against Hector were withdrawn.

Hector commenced a civil rights action under 42 U.S.C.
S 1983 to recover the expenses incurr ed pursuing his
Fourth Amendment claim. The District Court granted
summary judgment against the officers' attempts to shield
themselves from Hector's claim with the doctrine of
qualified immunity, and we affirmed. Hector v. Watt, No.
99-3355 (3d Cir. Nov. 3, 1999) (per curium). With the
officers' liability for violating Hector's Fourth Amendment
right established, and their entitlement to qualified
immunity blocked, the S 1983 claim was r emanded to the
District Court to determine damages. The District Court
filed a one paragraph order granting the officers' motion for
summary judgment and stating that "as a matter of law . . .
the damages recoverable by plaintiff for defendant's
violation of his civil rights under 42 U.S.C. S 1983 are
limited to nominal damages of $1.00."

Individuals may bring civil claims for damages r esulting
from violations of their Fourth Amendment rights under

                                14
S 1983. See Parkhurst v. Trapp, 77 F.3d 707 (3d Cir. 1996);
Gillard v. Schmidt, 579 F.2d 825 (3d Cir. 1978). We have
recognized that "Section 1983, Title 42 U.S.C.A., is
completely silent as to the kind of damages which may be
awarded an injured plaintiff in a civil right suit," Basista v.
Weir, 340 F.2d 74, 85 (3d Cir . 1965), and the Supreme
Court has held that S 1983 damages "may include . . . out-
of-pocket loss and other monetary harms." Memphis Cmty.
Sch. Dist. v. Stachura, 477 U.S. 299, 307, 106 S.Ct. 2537,
2543 (1986). Actions brought under S 1983 are reviewed
like common law tort claims and require a proximate cause
analysis. See Heck v. Humphrey, 512 U.S. 477, 114 S.Ct.
2364 (1994); Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042
(1978); Olsen v. Correiro, 189 F.3d 52 (1st Cir. 1999);
Gierlinger v. Gleason, 160 F.3d 858 (2d Cir. 1997).

The dispositive question, therefore, is whether the
officers' illegal search and seizure of Hector's aircraft
proximately caused the expenses related to Hector's
suppression hearing. The first stage of a causation analysis
requires a finding that the violation caused the damages in
fact, and I need not belabor this portion of the analysis
since "but for" the officers' illegal sear ch Hector would not
have been detained, searched, and prosecuted. Because the
charges against Hector rested entir ely upon the illegally
seized drugs, without the officers' violation of his Fourth
Amendment rights none of the subsequent criminal
proceedings would have occurred.

The issue of proximate cause, however, r equires closer
analysis. Unlike causation in fact, proximate causation is a
legal construct fashioned according to policy
considerations. As Justice Andrews stated in his classic
dissent in Palsgraf v. Long Island R.R., 162 N.E. 99, 103
(N.Y. 1928), "[w]hat we mean by the word `proximate' is
that, because of . . . public policy . . . the law arbitrarily
declines to trace a series of events beyond a certain point."
The causal chain traced by a proximate cause analysis can
be broken by an intervening or superceding cause, which
Prosser and Keeton describe as "an act of a third person or
other force which by its intervention pr events the actor
from being liable for harm to another which his antecedent
negligence is a substantial factor in bringing about."
RESTATEMENT (SECOND) OF TORTSS 440 (1965).

                               15
The majority eschews this issue, stating that "[g]iven that
the cases on intervening causes are legion and difficult to
reconcile . . . and that we have other, sufficient grounds for
resolving this case, we will not reach the issue of
intervening cause." Considering the facts befor e us, I find
the causation analysis less daunting.

Three events might be considered to br each the chain of
causation between the initial illegal detention (occurring
before the issuance of the warrant) and the damages Hector
subsequently incurred defending his Fourth Amendment
rights and successfully suppressing the seized contraband:
1) the magistrate's issuance of a warrant; 2) the
prosecutor's decision to pursue the char ge; and 3) the
federal grand jury's indictment. Admittedly, the causation
analysis would be difficult if we were to consider only the
decision to prosecute and the grand jury indictment as
possible intervening causes since parallel and contradictory
jurisprudence has developed on this issue. Compare
Townes v. City of New York, 176 F .3d 138, 147 (2d Cir.
1999) (stating that "[i]t is well settled that the chain of
causation between a police officer's unlawful arr est and a
subsequent conviction and incarceration is br oken by the
intervening exercise of independent judgment"), Barts v.
Joyner, 865 F.2d 1187, 1195 (11th Cir . 1989) (finding that
intervening decisions of prosecutor, grand jury, judge, and
jury supervene), Hand v. Gary, 838 F .2d 1420, 1427-28
(5th Cir. 1988) (finding that a decision of a magistrate or
grand jury supervenes), Smiddy v. Var ney, 665 F.2d 261,
266-68 (9th Cir. 1981), Ames v. United States, 600 F.2d
183, 185 (8th Cir. 1979) (finding that a decision of a grand
jury supervenes), and Duncan v. Nelson, 466 F.2d 939, 943
(7th Cir. 1972) (finding that a ruling of a sentencing judge
supervenes), with Sherwin Manor Nursing Ctr ., Inc. v.
McAuliffe, 37 F.3d 1216 (7th Cir . 1994), Hale v. Fish, 899
F.2d 390 (5th Cir. 1990), Boruda v. Richmond, 885 F.2d
1384 (9th Cir. 1989) (en banc) (stating that a "plaintiff who
establishes liability for deprivations of constitutional rights
actionable under 42 U.S.C. S 1983 is entitled to recover
compensatory damages for all injuries suffer ed as a
consequence of those deprivations" and holding that the
decision to prosecute the charge did not supervene), Kerr v.
City of Chicago, 424 F.2d 1134, 1142 (7th Cir. 1970)

                               16
(stating that a "plaintiff in a civil rights action should be
allowed to recover the attorneys' fees in a . . . criminal
action where the expenditure is a for eseeable result of the
acts of the defendant."), Carter v. Geor gevich, 78 F.Supp.2d
332, 334 (D.N.J. 2000) (stating that "[r]ather than the acts
of a prosecutor and judge being consider ed intervening
causes which interrupted or destroyed the causal
connection between the wrongful act and injury to the
plaintiff, it appears to the Court that such subsequent acts
were reasonably foreseeable by the officer. A tortfeasor is
not relieved from liability for his wr ongful conduct by the
intervention of third persons if these acts ar e reasonably
foreseeable"), Schiller v. Strangis, 540 F.Supp. 605, 621
(D.Mass. 1982), Lykken v. Vavr eck, 366 F.Supp. 585
(D.Minn. 1973), Brooks v. Moss, 242 F .Supp. 531 (W.D.S.C.
1965), and McArthur v. Pennington, 253 F .Supp. 420
(E.D.Tenn. 1963). We need not r econcile this caselaw,
however, because the magistrate issued a sear ch warrant
before the officers recovered the contraband, and this act of
independent judgment breaks the chain of causation
between the illegal detention and Hector's subsequent legal
costs.

As the majority recognized, the most dir ectly pertinent
Supreme Court decision is Malley v. Briggs , 475 U.S. 335,
106 S.Ct. 1092 (1986). In Malley, the Court considered an
officer's liability under S 1983 for pr esenting an insufficient
affidavit to a judicial officer who issued a warrant resulting
in the plaintiff 's arrest. The Court rejected the District
Court's reasoning that the judicial officer's decision to issue
the warrant, despite lacking necessary infor mation, broke
the "causal chain between the application for the warrant
and the improvident arrest." The Court stated that "a
reasonably well-trained officer in [the same] position would
have known that his affidavit failed to establish probable
cause," and an "officer then cannot excuse his own default
by pointing to the greater incompetence of the magistrate."
Id. at 345, 346 n.9. Three points should be taken from
Malley.

First, a magistrate's issuance of a warrant, generally,
does not necessarily insulate an officer fr om damages that
occur as a result of illegal activity that takes place before

                               17
the receipt of the warrant. Second, the operative
determination for the Court was whether the officer should
have foreseen that his violation would pr oduce the damage
to the plaintiff, and in Malley this question was specifically
whether the officer should have known that his submission
of the insufficient affidavit would result in the arrest. For
the officers here, surely they could have foreseen that their
violation (illegally detaining Hector) could r esult in the
damages (legal fees).

Third, Malley is distinguishable fr om the facts here
because the officer's violation in Malley pertained directly to
the magistrate's inability to make an independent judgment
regarding the warrant. The warrant in Malley was not the
result of a truly independent decision by a magistrate, but
rather was contaminated and compromised by the officer's
misinformation. This requirement that a decision of a
prosecutor, sentencer, or other court officials will only
constitute an intervening cause if the decision is genuinely
free from deception or coercion is enforced by several
Courts of Appeal. See Townes, 176 F .3d at 147 (stating that
an exercise of independent judgment breaks chain of
causation "in the absence of evidence that the police officer
misled or pressured the official who could be expected to
exercise independent judgment"); Myers v. County of
Orange, 157 F.3d 66, 74 (2d Cir. 1998); Barts v. Joyner,
865 F.2d 1187, 1197 (11th Cir. 1989) (finding intervening
acts break chain of causation "in the absence of a showing
that the police officers deceived the court officials or unduly
pressured them or that the court officials themselves acted
with malice and the police joined with them."); Jones v. City
of Chicago, 856 F.2d 985, 994 (7th Cir . 1988) ("[A]
prosecutor's decision to charge, a grand jury's decision to
indict, a prosecutor's decision not to dr op charges but to
proceed to trial--none of these decisions will shield a police
officer who deliberately supplied misleading infor mation
that influenced that decision."); Lanier v. Sallas, 777 F.2d
321, 325 (5th Cir. 1985); Dellums v. Powell, 566 F.2d 167
(D.C. Cir. 1977), cert. denied, 438 U.S. 916 (1978).
Although here the warrant arrived too late to excuse the
initial detention, Hector has suffered no damages as a
result of that detention. Otherwise, the independence of the

                               18
magistrate's judgment was not compromised in any way.
Malley is therefore materially distinguishable.

The Fifth Circuit Court of Appeals offers two persuasive
opinions holding that "if the facts supporting an arrest are
put before an intermediate such as a magistrate or grand
jury, the intermediate's decision breaks the causal chain,"
Rodriguez v. Ritchey, 556 F.2d 1185, 1193 (5th Cir. 1977)
(en banc); Smith v. Gonzales, 670 F.2d 522 (5th Cir. 1982),
and a third stating that "even an officer who acted with
malice in procuring the warrant . . . will not be liable if the
facts supporting the warrant or indictment ar e put before
an impartial intermediary." Hand v. Gary, 838 F.2d 1420,
1427 (5th Cir. 1988). The Hand Court also emphasized, in
accordance with Malley, that the chain of causation is only
broken where all the facts are pr esented to the independent
intermediary or where an officer's indiscretion does not
cause any relevant information to be withheld from the
independent intermediary. As Hand summarized, any
"misdirection of the magistrate or the grand jury by
omission or commission perpetuates the taint of the
original official behavior." Id. at 1428. Several district courts
have followed these three Fifth Circuit opinions on this
issue. See Johnson v. Davenport, 2000 WL 341255 (N.D.
Tex. 2000); Paddio v. City of Hammond, 1997 WL 289704
(E.D. La. 1997); Hamrick v. City of Eustace, 732 F.Supp.
1390 (E.D.Tex.1990); Taylor v. City of Nederland, Tex., 685
F.Supp. 616 (E.D. Tex. 1988); V on Williams v. City of Bridge
City, Tex., 588 F.Supp. 1187 (E.D. Tex. 1984); Farmer v.
Lawson, 510 F.Supp. 91 (N.D. Ga. 1981).

There is nothing in the record to indicate, nor have the
parties claimed, that the officers undermined the
magistrate's independence of judgement and autonomous
determination to issue the warrant. Absent any such
subterfuge, and in conjunction with the decision of the
prosecutor, the grand jury indictment, and the general
policy concerns expressed in the majority opinion, I would
find that the officers do not bear legal r esponsibility for the
costs accrued after the initial illegal detention.

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A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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