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

No. 04-3949
ANDRE WALLACE,
                                               Plaintiff-Appellant,
                                 v.

CITY OF CHICAGO, KRISTEN KATO
and EUGENE ROY,
                                            Defendants-Appellees.
                          ____________
            Appeal from the United States District Court
       for the Northern District of Illinois, Eastern Division.
        No. 03 CV 2296—Samuel Der-Yeghiayan, Judge.
                          ____________
      ARGUED MAY 31, 2005—DECIDED MARCH 8, 2006
                     ____________


  Before EASTERBROOK, ROVNER, and WOOD, Circuit Judges.
   WOOD, Circuit Judge. From the age of fifteen until
twenty-three, Andre Wallace was serving time in prison
for his alleged participation in a murder. After several
appeals, the Illinois Appellate Court found that the po-
lice had arrested him without probable cause and that
his confession was not sufficiently attenuated from his
unlawful arrest. At that point, the prosecution decided
to leave well enough alone, and Wallace was released.
Only then did Wallace commence the present action: he
filed a suit under 42 U.S.C. § 1983 in federal court asserting
that Detectives Kato and Roy and the City of Chicago had
violated his Fourth Amendment rights and that they had
2                                                    No. 04-3949

also committed the state torts of malicious prosecution and
false imprisonment. The district court granted summary
judgment in favor of all three defendants. We affirm. In
doing so, we have found it necessary to clarify the law of our
circuit concerning when a false arrest claim accrues. We
reaffirm the holding of Booker v. Ward, 94 F.3d 1052, 1056-
57 (7th Cir. 1996), that false arrest claims accrue at the
time of arrest; to the extent that it is inconsistent with
Booker v. Ward and the present opinion, we overrule
Gauger v. Hendle, 349 F.3d 354 (7th Cir. 2003).Œ


                                 I
  On January 17, 1994, John Handy was shot and killed
at 825 N. Lawndale Avenue near the intersection of Chicago
Avenue and Lawndale. Handy had been working as a house
sitter for a construction company and had apparently had
a previous confrontation with drug dealers in the area.
Detectives Kristen Kato and Eugene Roy were assigned to
investigate Handy’s murder. After discussing the murder
with witnesses and informants in the neighborhood, the
police brought Wallace and Laron Jackson in for question-
ing on the night of January 19, 1994. At the time, the police
were not aware that Wallace was only 15 years old because
Wallace had told them he was 17 years old.
  During the course of the night, Detectives Kato and Roy
took turns interrogating Wallace. Wallace, they claim, was
free to leave the station house at any time. Wallace’s
account is somewhat different: he reported that Kato


Œ
   Because this opinion would overrule an earlier decision of
this court, in the manner described in Part II.A. below, it has been
circulated among all judges of this court in regular active service.
A majority did not wish to hear the case en banc. Circuit Judge
Posner voted to hear the case en banc for the reasons stated in his
dissent.
No. 04-3949                                                3

and Roy played “good cop/bad cop” with him to induce
him to confess falsely. Kato was the bad guy; whenever
Kato took a break, Roy spoke with Wallace and told him
that if he confessed, Roy could get Kato to stop hurting him.
This continued through the night. At about 4:15 a.m., the
detectives confronted Wallace with Jackson’s and another
witness’s statements that they saw Wallace running down
the gangway from 825 N. Lawndale after hearing shots.
Wallace then admitted that he was only 15. Around 6:00
a.m., Wallace agreed to confess. A youth officer and an
assistant state’s attorney met with Wallace and read him
his Miranda rights and took his written statement. In his
complaint, Wallace claims that Kato told him not to tell the
state’s attorney that Kato had promised Wallace that he
could go home after he gave his statement.
  Before his trial, Wallace filed several motions to suppress
his statements on the grounds that his arrest had been
made without probable cause and that the statements were
coerced and violated his Miranda rights. His motions were
all denied. On April 19, 1996, after a bench trial, Wallace
was found guilty of first degree murder.
  Wallace appealed. In an opinion issued on September 21,
1998, the Illinois Appellate Court found that the police
arrested him without probable cause and remanded for
a hearing to determine whether his statements were
sufficiently attenuated from his unlawful arrest to per-
mit their use. On remand, the circuit court found that
Wallace’s confession was sufficiently attenuated from his
arrest and affirmed his conviction. Wallace appealed again,
and the Illinois Appellate Court reversed the circuit court’s
decision and remanded for a new trial. On April 10, 2002,
the prosecution filed a nolle prosequi motion and dropped
the case.
  On April 2, 2003, Wallace filed the present suit, asserting
that his Fourth Amendment rights had been violated and
4                                                  No. 04-3949

raising state law claims for false imprisonment and mali-
cious prosecution. Kato and Roy filed an answer and a
motion for summary judgment, and the City filed a motion
to dismiss. On October 21, 2003, Wallace filed his response,
just a week before we decided Gauger v. Hendle, which held
that under the circumstances presented there the statute of
limitations did not begin to run until the defendant’s
conviction was invalidated. 349 F.3d at 361-62.
   On March 30, 2004, the district court granted summary
judgment for Roy and Kato on all claims except Wallace’s
federal fair trial claim, which it denied without preju-
dice. The court also denied without prejudice the City’s
motion to dismiss under Fed. R. Civ. P. 12(b)(6). Wallace
filed an amended complaint on April 28, 2004, reasserting
his Fourth Amendment claims. The defendants answered
and filed a second motion for summary judgment, which
included an affirmative defense of collateral estoppel.
Wallace’s response asserted that the defendants had waived
their collateral estoppel defense by failing to raise it in their
answer to his amended complaint. The defendants moved to
amend their answer.
  On October 29, 2004, the court granted the defendants’
motion to amend their answer to assert their collateral
estoppel defense and in the same order granted the de-
fendants’ motion for summary judgment. It concluded
that Wallace had conceded that his false arrest claim
was time-barred. Alternatively, the court held that even
if Wallace was allowed to replead his claim under the
more recent decision in Gauger, he would still be time-
barred because Wallace could have brought the claim after
the Illinois Appellate Court found on September 21, 1998,
that Wallace was arrested without probable cause. This was
so even though the appellate court remanded the case to the
trial court to determine whether Wallace’s confession was
sufficiently attenuated from his illegal arrest. The district
court concluded that at this point it was possible that even
No. 04-3949                                                 5

if Wallace was illegally arrested his conviction could still
stand, and thus he could not take advantage of the Gauger
rule.


                             II
  A. False Arrest Claim
  Wallace brought his false arrest claim for violation of
his Fourth Amendment rights under 42 U.S.C. § 1983.
Before turning to the merits of the claim, we address briefly
the government’s argument that it is waived (or more
properly, forfeited) because Wallace failed to raise it in a
timely manner in the district court. Our review of
the record shows that Wallace initially conceded that
his false arrest claim was time-barred in the responsive
papers he filed on October 21, 2003, under pre-Gauger law.
After Gauger appeared a week later and before the dis-
trict court ruled on the defendants’ second motion for
summary judgment, Wallace changed his position and
asserted the merits of the false arrest claim. We there-
fore conclude that he neither waived nor forfeited this
argument below.
   Although federal law governs the question of the ac-
crual of constitutional torts, state statutes of limitations
and tolling doctrines apply once accrual has been deter-
mined. See Hardin v. Straub, 490 U.S. 536, 538-39 (1989);
see also Gonzalez v. Entress, 133 F.3d 551, 554 (7th Cir.
1998). Wallace’s false arrest claim is subject to the two-year
statute of limitations supplied by Illinois law under 735
ILCS § 5/13-202. In his case, that period was tolled until
November 7, 1999, two years after Wallace turned eighteen
years old, by virtue of 735 ILCS § 5/13-211. If Wallace’s
claim accrued as of April 10, 2002, when his conviction was
finally nullified and the state dropped his case, then the
suit filed on April 2, 2003, easily met the two-year deadline.
If, on the other hand, his claim accrued at the time of his
6                                                  No. 04-3949

arrest on January 20, 1994, his claim is time-barred, even
taking into account the tolling that occurred during the
period of his minority. Everything depends, therefore, on
the accrual rule we must use.
   In principle, there are at least three approaches we could
take to the accrual of Fourth Amendment claims: (1) the
Fourth Amendment claim arises at the time of the wrong
(i.e., the false arrest, the unlawful search); (2) the Fourth
Amendment claim accrues only after the underlying
conviction definitively has been set aside; or (3) as Gauger
suggested, accrual depends on how central the evidence was
to the conviction: if it was non-essential, use rule 1; if it was
critical, use rule 2. Before settling on our preferred option,
it is useful to review the underlying law in this area.
  When a person’s Fourth Amendment rights have been
violated by a false arrest, the injury occurs at the time of
the arrest. Thus, an individual is entitled to recover only for
injuries suffered from the time of arrest until his arraign-
ment. Wiley v. City of Chicago, 361 F.3d 994, 998 (7th Cir.
2004) (“[W]e have held that the scope of a Fourth Amend-
ment claim is limited up until the point of arraignment.”);
see also Gauger, 349 F.3d at 363 (“[T]he interest in not
being prosecuted groundlessly is not an interest that the
Fourth Amendment protects.”). On the other hand, as
Wallace’s own case illustrates, it is often the case that the
prosecution cannot proceed without the fruits of an unlaw-
ful arrest (as Wallace’s confession was) or an unlawful
search. In those cases, the idea that the claim accrues at
the time of the injury runs into some tension with the
Supreme Court’s decision in Heck v. Humphrey, 512 U.S.
477 (1994).
  In Heck, the Court held that a constitutional claim that
would undermine a criminal conviction if vindicated cannot
be brought until the defendant’s conviction is nullified. Id.
at 486-87. This general rule, which works perfectly well for
complaints like the ones about the knowing destruction of
No. 04-3949                                                 7

evidence and illegal identification procedure raised in Heck,
has caused some courts—including this one in Gauger—to
conclude that certain Fourth Amendment claims also do not
accrue until after the defendant’s conviction has been
invalidated. See, e.g., Gauger, 349 F.3d at 362; Harvey v.
Waldron, 210 F.3d 1008, 1015 (9th Cir. 2000) (holding that
Fourth Amendment claims based on illegal search and
seizure of evidence are not cognizable until the conviction is
overturned or charges dismissed); Covington v. City of New
York, 171 F.3d 117, 124 (2d Cir. 1999) (finding
that generally false arrest claims accrue at the time of
arrest, but that if success in the § 1983 case would “imply
the invalidity of a conviction in a pending criminal prosecu-
tion,” it does not accrue “so long as the potential for a
judgment in the pending criminal prosecution continues
to exist”).
  Heck itself instructs that a district court must:
    consider whether a judgment in favor of the plaintiff
    would necessarily imply the invalidity of his convic-
    tion or sentence; if it would, the complaint must be
    dismissed unless the plaintiff can demonstrate that the
    conviction or sentence has already been invalidated.
    But if the district court determines that the plaintiff’s
    action, even if successful, will not demonstrate the
    invalidity of any outstanding criminal judgment against
    the plaintiff, the action should be allowed to proceed, in
    the absence of some other bar to the suit.
512 U.S. at 487 (emphasis in original) (footnotes omitted).
Footnote seven in Heck anticipates at least some Fourth
Amendment cases. It suggests that despite the general rule
of Heck, a suit for damages arising from an unreasonable
search could go forward as a § 1983 claim without invalidat-
ing a criminal prosecution, because of the independent
source or inevitable discovery doctrines. In Gonzalez, we
saw two implications in the footnote: “(i) a claim based on
an unlawful search or arrest may be brought immediately,
8                                              No. 04-3949

because a violation of the fourth amendment does not
necessarily impugn the validity of a conviction—the evi-
dence may be properly admitted anyway, or it may be
excluded and the defendant convicted on other
evidence—and (ii) a claim of damages based on the injury
of being convicted is impermissible until the conviction has
been overturned.” 133 F.3d at 553 (internal quotation
marks omitted).
  In Booker v. Ward, we interpreted Heck to allow a false
arrest claim to go forward before the defendant’s conviction
was invalidated:
    [A] wrongful arrest claim, like a number of other Fourth
    Amendment claims, does not inevitably undermine a
    conviction; one can have a successful wrongful arrest
    claim and still have a perfectly valid conviction. Al-
    though in this case the Illinois Appellate Court’s
    conclusion that Booker’s confession was the inadmissi-
    ble product of an unlawful arrest ultimately resulted in
    the dismissal of murder charges against Booker, in
    many cases, the prosecutor will have other witnesses or
    other evidence that will support a retrial.
94 F.3d at 1056 (citations omitted). The approach that the
court took looked to the legal nature of the wrongful arrest
claim, rather than to the specific facts of the case.
  The Gauger opinion, in contrast, rejects an across-the-
board approach to Fourth Amendment claims in favor of
a case-by-case examination under which at least some
false arrest claims would not accrue until after the convic-
tion was invalidated:
    It might be argued that Gauger could have sued right
    after his arrest, even if he might also have waited
    until his criminal conviction was thrown out. But we do
    not think that such a conclusion would be consistent
    with Heck. For he could not knock out the arrest
No. 04-3949                                                  9

    without also (by virtue of Wong Sun [v. United States,
    371 U.S. 471 (1963)]) invalidating the use in evidence of
    his admissions, without which, as we have said, he
    could not be convicted. Heck, to repeat, says that a
    criminal defendant can’t sue for damages for violation
    of his civil rights, if the ground of his suit is inconsis-
    tent with his conviction having been constitutional,
    until he gets the conviction thrown out.
349 F.3d at 362. See also Wiley, 361 F.3d at 997-98.
  In our view, although it is conceivable that there are
factual differences among Booker’s, Gauger’s, and Wallace’s
cases, the distinctions are unimportant in the end. In
Gauger’s case, the police suspected Gauger of murdering his
parents. 349 F.3d at 356. They brought him in for question-
ing and Gauger made several incriminating statements
that, according to his version of the interrogation, were
stated as hypotheticals. Id. at 357. Gauger was convicted
and sentenced to death. On appeal, the Illinois Appellate
Court determined that his statements were inadmissable as
the product of an unlawful arrest. Id. The court ordered a
new trial, but the state never retried him and the charges
were dropped after two members of the Outlaws motorcycle
gang confessed killing Gauger’s parents. Id. at 358. The
resemblance to Wallace’s case is plain.
  It is true that in Booker’s case, as in Wallace’s, the
state appellate court first remanded for an attenuation
hearing before ordering a new trial. See Booker v. Ward,
94 F.3d at 1054. The result of the attenuation hearing was a
conclusion that the confession was sufficiently attenuated
from the defendant’s unlawful arrest, but the Illinois
Appellate Court reversed. Id. Just as in Wallace’s case, at
this point the prosecution filed a motion for a nolle prosequi,
and the court dropped the charges against Booker. Id. It is
telling that in both Booker’s and Wallace’s cases, the state
appellate court formally decided that the defendant’s
10                                              No. 04-3949

criminal prosecution could continue even though the arrests
were unlawful. Only the pragmatic judgment of the prosecu-
tors, which could have rested on a conclusion that it was
unlikely that any additional evidence existed, or on a lack
of resources for further investigation, or any of a number of
other factors, caused the cases to end. The rule we articu-
lated in Booker v. Ward recognizes that ex ante it is not
readily apparent which criminal cases might proceed
despite the consequences of the successful Fourth Amend-
ment challenge. This, in our view, argues against a rule
that requires judges several years after the event to
decide whether a particular Fourth Amendment chal-
lenge would have been the death knell of the prosecution.
  Even if a clear rule is what is needed, we still need to
decide between options (1) and (2) above: that is, between a
rule saying that all claims of this type accrue at the time of
injury, and a rule that they all accrue only when the
criminal conviction has been set aside. The footnote in Heck
to which we referred earlier persuades us that the Supreme
Court did not contemplate the second rule, as it took care to
suggest that the statute of limitations should begin running
on at least some claims at the time of the original injury.
Although the Court refrained from holding that all Fourth
Amendment claims accrue immediately, it had no need to
reach that issue in Heck. We conclude that the approach
taken by Booker v. Ward, while an arguable extension of
Heck, is an extension that is justifiable in light of the
policies behind both the statute of limitations and the need
to avoid unnecessary interference with the outcomes of
criminal proceedings.
  To the extent, therefore, that Gauger eschews a clear rule
for false arrest claims in favor of an evaluation of the
evidence, we disapprove its approach and instead reaffirm
our holding in Booker v. Ward that a “§ 1983 unlawful
arrest claim . . . accrue[s] on the day of [ ] arrest.” Id. at
1056-57. Individuals and attorneys who wish to preserve a
No. 04-3949                                                11

claim for false arrest or similar Fourth Amendment viola-
tions should file their civil rights action at the time
of arrest. It will still be possible, of course, for a district
court to stay any such action until the criminal proceedings
are concluded, should it conclude in its discretion that a
stay would be useful. We note as well that we are address-
ing only the question of accrual; other doctrines, such as
equitable tolling, may also affect the time in which a
particular suit may be brought. See Heck, 512 U.S. at 489
(reserving judgment on whether equitable tolling applies in
this context).
   One additional qualification is necessary, which in our
view answers the concerns expressed in the dissent. Heck
itself recognized that it is possible for a § 1983 claim
based on false arrest or a similar Fourth Amendment
violation “necessarily [to] imply the invalidity of [a plain-
tiff’s] conviction or sentence,” Heck, 512 U.S. at 486 n.6, 487
(example of plaintiff convicted of resisting arrest
who challenges legality of arrest). The case to which the
Court pointed, however, is one in which the fact of a Fourth
Amendment violation is an element of the claim. In that
relatively uncommon set of cases, there is an independent
reason to insist that a plaintiff wait to sue until the crimi-
nal conviction has been set aside; if she does not, the
possibility of inconsistent rulings on the validity of the
arrest is too great. Our ruling addresses the normal run
of cases, in which the Fourth Amendment violation af-
fects only the evidence that might or might not be presented
to the trier of fact. In those instances, we are convinced
that a clear accrual rule is superior to a case-by-case
approach.
  As the parties have noted, the question of the proper
rule for accrual is an issue that has divided our sister
circuits. Although their reasoning varies, the Second,
Fourth, Fifth, Sixth, and Ninth Circuits have held that false
arrest claims that would undermine the defendant’s
12                                               No. 04-3949

conviction cannot be brought until the conviction is nulli-
fied. See Harvey, 210 F.3d at 1015 (acknowledging circuit
split and holding flatly that “a § 1983 action alleging illegal
search and seizure of evidence upon which criminal charges
are based does not accrue until the criminal charges have
been dismissed or the conviction has been overturned”);
Covington, 171 F.3d at 124; Shamaeizadeh v. Cunigan, 182
F.3d 391, 399 (6th Cir. 1999) (explicitly rejecting suggestion
that § 1983 illegal search claims accrue at the time of
injury, since such a rule would “misdirect the criminal
defendant” from focusing on “mounting a viable defense to
the charges against him”); Cabrera v. City of Huntington
Park, 159 F.3d 374, 380 (9th Cir. 1998) (holding that
success on false arrest claim would “necessarily imply” that
conviction for disturbing the peace was invalid as not based
on probable cause); Brooks v. City of Winston-Salem, 85
F.3d 178, 183 (4th Cir. 1996) (Heck bars civil rights claims
“when a § 1983 plaintiff’s success on a claim that a
warrantless arrest was not supported by probable cause
necessarily would implicate the validity of the plaintiff’s
conviction or sentence”); Mackey v. Dickson, 47 F.3d 744,
746 (5th Cir. 1995) (stating that “a claim of unlawful arrest,
standing alone, does not necessarily implicate the validity
of a criminal prosecution following the arrest,” but staying
the civil action until the criminal prosecution was com-
pleted).
  The First, Third, Eighth, Tenth, and Eleventh Circuits
have held that false arrest claims accrue at the time of the
arrest. Nieves v. McSweeney, 241 F.3d 46, 52-53, 52 n.4 (1st
Cir. 2001) (stating that “it is pellucid that all claims based
on the officers’ physical abuse or arrest of the appellants
accrued at the time that those events occurred . . . because
the appellants had ample reason to know of the injury then
and there,” and characterizing as “rare and exotic” the
“circumstances in which a section 1983 claim based on a
warrantless arrest will not accrue at the time of the ar-
No. 04-3949                                                13

rest”); Beck v. City of Muskogee Police Dep’t, 195 F.3d 553,
558, 559 n.4 (10th Cir. 1999) (“We generally disagree with
the holdings in [Covington and Mackey] because they run
counter to Heck’s explanation that use of illegally obtained
evidence does not, for a variety of reasons, necessarily imply
an unlawful conviction.”); Montgomery v. De Simone, 159
F.3d 120, 126 (3d Cir. 1998) (finding § 1983 false arrest
claim not barred by Heck); Simmons v. O’Brien, 77 F.3d
1093, 1095 (8th Cir. 1996) (finding § 1983 coerced confes-
sion claim not barred by Heck); Datz v. Kilgore, 51 F.3d 252,
253 n.1 (11th Cir. 1995) (per curiam) (finding § 1983 illegal
search claim not barred by Heck). By aligning ourselves
with one side of this debate, we do not break any new
ground.


    B. False Confession Claim
  Wallace also asserts a “false confession” claim that he
claims is actionable under the Fourth Amendment, relying
on the following language in Gauger:
    [Gauger’s] incarceration resulted from the combina-
    tion of a false arrest with (if his testimony is believed)
    a false account of his interrogation. If his testimony
    is believed, therefore, the seizure of his person was from
    the beginning to the end of his incarceration unreason-
    able, and shouldn’t that bring the allegedly fraudulent
    account of his interrogation under the Fourth Amend-
    ment?
349 F.3d 360. In support of his claim, Wallace tries to
distinguish a “continuing Fourth Amendment violation”
from the “continuing seizure” theory discussed in Justice
Ginsburg’s concurring opinion in Albright v. Oliver, 510
U.S. 266 (1994). See id. at 279 (Ginsburg, J., concurring).
His efforts are necessary, at least in this court, because
we have already rejected a “continuing seizure” theory in
the Fourth Amendment context. See McCullah v. Gadert,
14                                                No. 04-3949

344 F.3d 655, 661 (7th Cir. 2003) (citing Reed v. City of
Chicago, 77 F.3d 1049, 1052 n.3 (7th Cir. 1996)). Nonethe-
less, we find them unavailing. Wallace tries to find some
support for it in Chavez v. Martinez, 538 U.S. 760 (2003),
but as we read that case it dealt only with the Fifth Amend-
ment and the due process clauses. We reject the idea of a
stand-alone “false confession” claim based on the Fourth
Amendment, rather than the Fifth Amendment or the due
process clauses.


  C. Fourteenth Amendment Claim
  Finally, Wallace tries characterizing his false confes-
sion claim as a violation of his Fourteenth Amendment
right to a fair trial. Wallace contends that our decision
in Newsome v. McCabe, 256 F.3d 747 (7th Cir. 2001), allows
for a “false confession” claim as a due process violation. In
Newsome, we affirmed the district court’s decision to deny
qualified immunity to two officers who had withheld
exculpatory evidence from the defendant. Id. at 753. The
reason was because, under Brady v. Maryland, 373 U.S. 83
(1963), officers who withhold such material violate a defen-
dant’s right to a fair trial. 256 F.3d at 752. See also Ienco v.
City of Chicago, 286 F.3d 994, 999 (7th Cir. 2002) (allowing
plaintiff to amend complaint to assert due process claim
against police officers who withheld evidence); Jones v.
Chicago, 856 F.2d 985 (7th Cir. 1988) (allowing claim
against officers who allegedly fabricated evidence and
concealed exculpatory evidence to go forward).
  As these brief summaries demonstrate, Newsome, Ienco,
and similar cases do not stand for the proposition that there
is a free-standing due process claim whenever
unfair interrogation tactics (short of those that may
shock the conscience and thereby implicate the Supreme
Court’s substantive due process rulings) are used to
obtain a confession. Instead, they are grounded in tradi-
No. 04-3949                                                15

tional notions of what is required for a fair trial, including
the Brady right to be given exculpatory material. In the
end, all Wallace has is a complaint about the arrest and the
subsequent confession, and that is the claim we have found
to be time-barred. He cannot escape that result merely by
re-characterizing the claim under a different part of the
Constitution.


                             III
   The City argued in the alternative that Wallace was
not entitled to bring his suit under the Heck rule be-
cause the state court proceedings did not conclude in his
favor. It reasons that the state trial court found that his
confession was voluntary; that this finding was not dis-
turbed as a matter of Illinois law when the state appellate
court reversed and remanded the trial court’s judgment;
and that Wallace cannot prevail in his § 1983 action if this
central fact is taken as established. Because we have
resolved this appeal in favor of all three defendants on the
statute of limitations ground, we decline to reach the City’s
alternative argument. It depends centrally on the intrica-
cies of the law of collateral estoppel in Illinois, which is a
topic on which all we could do in any event is to follow the
Illinois courts to the best of our ability.
  The judgment of the district court is AFFIRMED.




  POSNER, Circuit Judge, dissenting from denial of rehear-
ing en banc. The panel decision creates an intercircuit
conflict on a recurrent issue: when does a claim for damages
arising out of a false arrest or other search or seizure
16                                               No. 04-3949

forbidden by the Fourth Amendment, or a coerced con-
fession forbidden by the due process clause of the Fifth
Amendment, accrue, when the fruits of the search or the
confession were introduced in the claimant’s criminal trial,
and he was convicted? The panel holds that, except in the
rare case in which a violation of the Fourth Amendment is
an element of the crime with which the defendant is
charged, it always accrues at the time of the arrest, search,
or confession. Every other case to address the issue,
including our own Gauger v. Hendle, 349 F.3d 354 (7th Cir.
2003), holds that it usually accrues then, but not if the
Fourth or Fifth Amendment claim, if valid, would upset the
conviction. If it would, the claim does not accrue unless and
until the conviction is vacated. In other words, a civil rights
suit is not a permissible vehicle for a collateral attack on a
conviction.
  That is the holding of Heck v. Humphrey, 512 U.S. 477
(1994). The Court said that the district court must “consider
whether a judgment [in the civil rights suit] in favor of the
plaintiff would necessarily imply the invalidity of
his conviction or sentence; if it would, the complaint must
be dismissed unless the plaintiff can demonstrate that the
conviction or sentence has already been invalidated.” Id. at
486-87. The Court gave the following example of “a § 1983
action that does not seek damages directly attributable to
conviction or confinement but whose successful prosecution
would necessarily imply that the plaintiff’s criminal
conviction was wrongful”: “A state defendant is convicted of
and sentenced for the crime of resisting arrest, defined as
intentionally preventing a peace officer from effecting a
lawful arrest. . . . He then brings a § 1983 action against
the arresting officer, seeking damages for violation of his
Fourth Amendment right to be free from unreasonable
seizures. In order to prevail in this § 1983 action, he
would have to negate an element of the offense of which he
has been convicted. Regardless of the state law concern-
No. 04-3949                                                  17

ing res judicata, . . . the § 1983 action will not lie.” 512 U.S.
at 486 n. 6 (emphasis in original). Faced with this
flat statement, the panel carves the exception to its new
rule that I mentioned in the first paragraph but does not
give a reason for limiting the Court’s exception to the
particular illustration that the Court gave. The panel
says only: “we are convinced that a clear accrual rule is
superior to a case-by-case approach.” It does not explain the
source of its conviction.
   Its accrual rule is not “clear,” as I’ll point out; it is also
inconsistent with the principles of accrual. A suit cannot be
filed—the claim on which it is based cannot have ac-
crued—at a time when, because a condition precedent
to suit has not been satisfied, the suit must be dismissed.
The panel holds that the suit must be filed within the
limitations period for section 1983 suits (usually two years)
from the date of the arrest, search, or, as in this case,
confession, even if at the end of the two years the plain-
tiff’s conviction has not been vacated and even if the only
evidence of his guilt presented at his criminal trial was the
challenged evidence or confession. This is so, the panel
holds, even though, to quote Heck, a judgment in the
plaintiff’s favor in the civil suit “would necessarily imply
the invalidity of his conviction” because it would wipe
out all of the evidence against him.
  And if the plaintiff waits to sue until his conviction is
vacated, he will not have the full statutory period within
which to sue because he will be able to avoid dismissal only
by appealing to the doctrine of equitable tolling. (That’s
assuming equitable tolling is available in Heck cases, a
question the panel leaves open.) Equitable tolling permits
a plaintiff to delay suing beyond the statutory limitations
period if he is unable despite all due diligence to sue within
the period; but as soon as he is able to sue he must. He is
denied the benefit of the full statutory period. Unterreiner
v. Volkswagen of America, Inc., 8 F.3d 1206, 1213 (7th Cir.
18                                               No. 04-3949

1993); Cada v. Baxter Healthcare Corp., 920 F.2d 446, 452-
53 (7th Cir. 1990).
   So the panel’s decision puts the squeeze on these plain-
tiffs, contrary to normal principles of accrual, which do not
force you—in fact do not allow you—to sue before you have
a claim. If you have been convicted and success on your civil
rights claim would undermine your conviction, you have no
civil rights claim unless and until you get the conviction set
aside. If the search turned up no evidence, or the confession
was excluded at the criminal trial, or the other evidence of
guilt was overwhelming, the claim does not challenge the
conviction and so it accrues at the time of the search. But
that is not every case.
  The proper response is to adopt a presumption against the
unlikely result. (The panel does not discuss that alterna-
tive.) The presumption would be that even if the plaintiff’s
Fourth or Fifth Amendment defense had prevailed in the
criminal proceeding against him, he still would have been
convicted, either because the violation had not produced
evidence used against him in that proceeding or because,
though it had, there was plenty of other evidence to convict
him. The presumption would be rebutted if, for example, the
only evidence of his guilt was evidence seized in a search
that he challenges in his section 1983 suit. This is not a
hypothetical case; it is our twin Okoro cases, Okoro v.
Bohman, 164 F.3d 1059, 1061 (7th Cir. 1999), and Okoro v.
Callaghan, 324 F.3d 488 (7th Cir. 2003). The plaintiff, who
had been convicted of a drug offense on the basis of heroin
found during a search of his home, brought a federal civil
rights suit in which he claimed that he had offered to sell
the police jewels (which he claimed they stole from him in
response to his offer), not drugs. His conviction was never
reversed or otherwise nullified. We held the suit barred by
Heck because if he was believed he should not have been
convicted, since the heroin was essential to the conviction;
and so his Fourth Amendment suit for the allegedly stolen
No. 04-3949                                                19

jewelry was barred. Hudson v. Hughes, 98 F.3d 868, 872
(5th Cir. 1996), is a similar case with the same result.
   Another clear case is Gauger itself. His conviction, we
pointed out, “rested crucially on the statements that he
made to the police when he was questioned after being
arrested. Earlier we said that he might well have been
prosecuted even if his version of the interrogation had been
accepted, because his version was incriminating though not
as much so as the prosecutors’ version. With no statement
at all in evidence, however, he could not have been con-
victed of guilt of his parents’ murder beyond a reasonable
doubt; the other evidence—the lack of forced entry or signs
of struggle, for example—was probative merely as corrobo-
ration of his statements construed as a confession or at
least as damaging admissions. So when he showed that the
statements were the product of a false arrest and hence
were inadmissible at his criminal trial, he successfully
impugned the validity of his conviction, as the state implic-
itly conceded when it dropped the charges against him
following the reversal of his conviction.” 349 F.3d at 361-62.
  There will be tough borderline cases, but the tough cases
are not resolved by the decision today. They will simply
be fought out as equitable-tolling cases rather than ac-
crual cases—if equitable tolling is available, a question on
which the panel, as I noted, reserves judgment: so much for
the panel’s having adopted a “clear rule.” If equitable tolling
is unavailable, then Fourth and Fifth Amendment claim-
ants will automatically file within the statutory period
dated from the search—and then plead with the district
court to disobey Heck and not dismiss the suit, even if it is
not yet ripe because the conviction has not been set aside
and its validity depends on the validity of the search. As the
Sixth Circuit sensibly observed in Shamaeizadeh v.
Cunigan, 182 F.3d 391, 399 (6th Cir. 1999), “just as a
convicted prisoner must first seek relief through habeas
20                                                 No. 04-3949

corpus before his § 1983 action can accrue, so too should the
defendant in a criminal proceeding focus on his primary
mode of relief—mounting a viable defense to the charges
against him—before turning to a civil claim under § 1983.”
The panel does not discuss that observation.
   The panel denies that it is creating an intercircuit
conflict. It says that there is already a conflict and it is just
taking sides. Citing five cases, the panel states flatfootedly:
“The First, Third, Eighth, Tenth, and Eleventh Circuits
have held that false arrest claims accrue at the time of the
arrest . . . . By aligning ourselves with one side of this
debate, we do not break any new ground.” That is incorrect.
None of those cases hold that such claims always accrue at
the time of arrest. All they hold is that normally a Fourth
Amendment claim accrues them. Not one of them even says
(as distinct from holds) that it always does, and two of the
five explicitly allow for later accrual in exceptional cases.
  The five cases are Nieves v. Sweeney, 241 F.3d 46, 52-53
(1st Cir. 2001); Beck v. City of Muskogee Police Dept., 195
F.3d 553, 558 (10th Cir. 1999); Montgomery v. De Simone,
159 F.3d 120, 126 (3d Cir. 1998); Simmons v. O’Brien, 77
F.3d 1093, 1097 (8th Cir. 1996), and Datz v. Kilgore, 51 F.3d
252, 253 n. 1 (11th Cir. 1995) (per curiam). Nieves acknowl-
edges that there may be cases “in which a section 1983
claim based on a warrantless arrest will not accrue at the
time of the arrest.” 241 F.3d at 52 n. 4. Even the passage
that the panel quotes from Nieves acknowledges that a
section 1983 claim does not always accrue at the time of
arrest. Id. Beck also acknowledges such a possibility. 195
F.3d at 558-59. In Montgomery, the plaintiff’s claims, which
were for false arrest and false imprisonment, were unre-
lated to the outcome of the criminal prosecution against her.
Her “claim for false arrest . . . covers damages only for the
time of detention until the issuance of process or arraign-
ment, and not more. In addition, Montgomery’s section 1983
false imprisonment claim relates only to her arrest and the
No. 04-3949                                                 21

few hours she was detained immediately following her
arrest. Montgomery therefore reasonably knew of the
injuries that form the basis of these 1983 claims on the
night of her arrest.” 159 F.3d at 126 (citations omitted).
   In Datz, a search case, the court held that the plaintiff did
not have to wait until the outcome of his criminal case to
bring his civil case because it was uncertain whether
a ruling in the civil case that Datz’s search had been illegal
would be inconsistent with his criminal conviction, for “even
if the pertinent search did violate the Federal Constitution,
Datz’ conviction might still be valid considering such
doctrines as inevitable discovery, independent source, and
harmless error.” 51 F.3d at 253 n. 1. Since Datz was
convicted of being a felon in possession of a firearm, and the
firearm was found in the search, it might seem that his
conviction could not coexist with invalidating the search.
But as the state court that upheld his conviction noted,
“ammunition for the weapon also was found in two locations
in appellant’s house. The police evidence custodian testified
appellant contacted him numerous times, by phone and in
person, seeking return of ‘his AR-15 rifle.’ ” Datz v. State,
436 S.E.2d 506, 509 (Ga. App. 1993). If there is untainted
evidence here, the panel’s result might well be correct, but
there is no discussion of the other evidence in its opinion. In
Simmons the only issue discussed is whether admission of
a coerced confession can be a harmless error; as far as
appears, no issue was made of whether the admission of the
confession had been harmless. 77 F.3d at 1094-95. The
panel does not discuss Montgomery, Datz, or Simmons; its
characterization of them (e.g., “finding § 1983 coerced
confession claim not barred by Heck”) is consistent with the
principle that the claim usually accrues later.
  The cases that the panel acknowledges are in conflict with
its accrual rule are, besides Gauger, Harvey v. Waldron, 210
F.3d 1008, 1015 (9th Cir. 2000); Shamaeizadeh v. Cunigan,
22                                               No. 04-3949

supra, 182 F.3d at 399; Covington v. City of New York, 171
F.3d 117, 124 (2d Cir. 1999); Cabrera v. City of Huntington
Park, 159 F.3d 374, 380 (9th Cir. 1998); Brooks v. City of
Winston-Salem, 85 F.3d 178, 183 (4th Cir. 1996), and
Mackey v. Dickson, 47 F.3d 744, 746 (5th Cir. 1995). The list
is incomplete. Mysteriously omitted, without comment, are
Uboh v. Reno, 141 F.3d 1000, 1006-08 (11th Cir. 1998), and
Woods v. Candela, 47 F.3d 545, 546 (2d Cir. 1995) (per
curiam). Nieves, at least, must be added to the list along
with Calero-Colon v. Betancourt-Lebron, 68 F.3d 1, 4 (1st
Cir. 1995), cited in Nieves, as well as our decision in Booker
v. Ward, 94 F.3d 1054, 1056 (7th Cir. 1996), where we said,
examining the proceedings in the Illinois courts, “that
success on Booker’s unlawful arrest claim would not
necessarily undermine the validity of his conviction.” That’s
the test, all right. And note that Beck, one of the cases the
panel cites for its rule, expressly declined to reject
Covington. 195 F.3d at 559 n. 4.
   The panel may have been misled by the reference in
Harvey v. Waldron, supra, 210 F.3d at 1015, to “a split in
the circuits.” The court in Harvey mischaracterizes the
approach of courts (including itself!) that reject the ap-
proach taken by the panel today. It describes them as
holding that a Fourth or Fifth Amendment claim never
accrues until and unless the conviction is vacated. Those
courts hold only that such a claim sometimes doesn’t accrue
until then, for example if there is no other evidence to
support the conviction besides evidence claimed to
have been obtained illegally. So in Harvey the court went on
to satisfy itself that the evidence alleged to have been
illegally seized was essential to Harvey’s conviction. Id.
at 1015-16.
  The panel is right that there are two groups of cases. But
they are consistent. One holds that a Fourth or Fifth
Amendment claim accrues at the time of arrest, assuming
the conviction does not depend on the evidence alleged to
No. 04-3949                                                23

have been illegally seized. The other holds that the
claim does not accrue then if the conviction does depend
on that evidence.
  I count 12 cases to 0 against the panel’s approach, with
the other three cases (Montgomery, Simmons, and Datz)
noncommittal but consistent with the 12. So one-sided a
score should give us pause. If there is a compelling practical
reason for flouting conventional statute of limitations
principles, forging a lonely path, and creating more work for
the Supreme Court, which now faces an intercircuit conflict
on a recurrent issue, the panel has not explained what it
might be.
24                                       No. 04-3949

A true Copy:
      Teste:

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




               USCA-02-C-0072—3-8-06
