CHIEF JUSTICE REHNQUIST announced the judgment of the Court and delivered an opinion, in which JUSTICE O'CONNOR, JUSTICE SCALIA, and JUSTICE GINSBURG join.
A warrant was issued for petitioner's arrest by Illinois authorities, and upon learning of it he surrendered and was released on bail. The prosecution was later dismissed on the ground that the charge did not state an offense under Illinois law. Petitioner asks us to recognize a substantive right under the Due Process Clause of the Fourteenth Amendment to be free from criminal prosecution except upon probable cause. We decline to do so.
We review a decision of the Court of Appeals for the Seventh Circuit affirming the grant of a motion to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), and we must therefore accept the well-pleaded allegations of the complaint as true. Illinois authorities issued an arrest warrant for petitioner Kevin Albright, charging him on the basis of a previously filed criminal information with the sale of a substance which looked like an illegal drug. When he learned of the outstanding warrant, petitioner surrendered to respondent, Roger Oliver, a police detective employed by the city of Macomb, but denied his guilt of such an offense. He was released after posting bond, one of the conditions of which was that he not leave the State without permission of the court.
Albright then instituted this action under Rev. Stat. § 1979, 42 U. S. C. § 1983, against Detective Oliver in his individual and official capacities, alleging that Oliver deprived him of substantive due process under the Fourteenth Amendment—his "liberty interest"—to be free from criminal prosecution except upon probable cause.
Section 1983 "is not itself a source of substantive rights," but merely provides "a method for vindicating federal rights elsewhere conferred." Baker v. McCollan, 443 U.S. 137, 144, n. 3 (1979). The first step in any such claim is to identify the specific constitutional right allegedly infringed. Graham v. Connor, 490 U.S. 386, 394 (1989); and Baker v. McCollan, supra, at 140.
Petitioner's claim before this Court is a very limited one. He claims that the action of respondents infringed his substantive due process right to be free of prosecution without probable cause. He does not claim that Illinois denied him the procedural due process guaranteed by the Fourteenth Amendment. Nor does he claim a violation of his Fourth Amendment rights, notwithstanding the fact that his surrender to the State's show of authority constituted a seizure for purposes of the Fourth Amendment. Terry v. Ohio, 392 U.S. 1, 19 (1968); Brower v. County of Inyo, 489 U.S. 593, 596 (1989).
We begin analysis of petitioner's claim by repeating our observation in Collins v. Harker Heights, 503 U.S. 115, 125 (1992). "As a general matter, the Court has always been reluctant to expand the concept of substantive due process
Petitioner relies on our observations in cases such as United States v. Salerno, 481 U.S. 739, 746 (1987), and Daniels v. Williams, 474 U.S. 327, 331 (1986), that the Due Process Clause of the Fourteenth Amendment confers both substantive and procedural rights. This is undoubtedly true, but it sheds little light on the scope of substantive due process. Petitioner points in particular to language from Hurtado v. California, 110 U.S. 516, 527 (1884), later quoted in Daniels, supra, stating that the words "by the law of the land" from the Magna Carta were "`intended to secure the individual from the arbitrary exercise of the powers of government.'" This, too, may be freely conceded, but it does not follow that, in all of the various aspects of a criminal prosecution, the only inquiry mandated by the Constitution is whether, in the view of the Court, the governmental action in question was "arbitrary."
Hurtado held that the Due Process Clause did not make applicable to the States the Fifth Amendment's requirement that all prosecutions for an infamous crime be instituted by the indictment of a grand jury. In the more than 100 years which have elapsed since Hurtado was decided, the Court has concluded that a number of the procedural protections contained in the Bill of Rights were made applicable to the States by the Fourteenth Amendment. See Mapp v. Ohio, 367 U.S. 643 (1961), overruling Wolf v. Colorado, 338 U.S. 25
This course of decision has substituted, in these areas of criminal procedure, the specific guarantees of the various provisions of the Bill of Rights embodied in the first 10 Amendments to the Constitution for the more generalized language contained in the earlier cases construing the Fourteenth Amendment. It was through these provisions of the Bill of Rights that their Framers sought to restrict the exercise of arbitrary authority by the Government in particular situations. Where a particular Amendment "provides an explicit textual source of constitutional protection" against a particular sort of government behavior, "that Amendment, not the more generalized notion of `substantive due process,' must be the guide for analyzing these claims." Graham v. Connor, supra, at 395.
We have in the past noted the Fourth Amendment's relevance to the deprivations of liberty that go hand in hand with criminal prosecutions. See Gerstein v. Pugh, 420 U.S. 103, 114 (1975) (holding that the Fourth Amendment requires a judicial determination of probable cause as a prerequisite to any extended restraint on liberty following an arrest). We have said that the accused is not "entitled to judicial oversight or review of the decision to prosecute." Id., at 118-119. See also Beck v. Washington, 369 U.S. 541, 545 (1962); Lem Woon v. Oregon, 229 U.S. 586 (1913). But here petitioner was not merely charged; he submitted himself to arrest.
The judgment of the Court of Appeals is therefore
JUSTICE SCALIA, concurring.
One can conceive of many abuses of the trial process (for example, the use of a patently biased judge, see Mayberry v. Pennsylvania, 400 U.S. 455, 465-466 (1971)) that might cause a criminal sentence to be a deprivation of life, liberty or property without due process. But here there was no criminal sentence (the indictment was dismissed), and so the only deprivation of life, liberty or property, if any, consisted of petitioner's pretrial arrest. I think it unlikely that the procedures constitutionally "due," with regard to an arrest, consist of anything more than what the Fourth Amendment specifies; but petitioner has in any case not invoked "procedural" due process.
Except insofar as our decisions have included within the Fourteenth Amendment certain explicit substantive protections of the Bill of Rights—an extension I accept because it is both long established and narrowly limited—I reject the proposition that the Due Process Clause guarantees certain (unspecified) liberties, rather than merely guarantees certain procedures as a prerequisite to deprivation of liberty. See TXO Production Corp. v. Alliance Resources Corp., 509 U.S. 443,
For these reasons, in addition to those set forth by THE CHIEF JUSTICE, the judgment here should be affirmed.
JUSTICE GINSBURG, concurring.
I agree with the plurality that Albright's claim against the police officer responsible for his arrest is properly analyzed under the Fourth Amendment rather than under the heading of substantive due process. See ante, at 271. I therefore join the plurality opinion and write separately to indicate more particularly my reasons for viewing this case through a Fourth Amendment lens.
Albright's factual allegations convey that Detective Oliver notoriously disobeyed the injunction against unreasonable seizures imposed on police officers by the Fourth Amendment, and Albright appropriately invoked that Amendment as a basis for his claim. See App. to Pet. for Cert. A-37, A-53. Albright's submission to arrest unquestionably constituted a seizure for purposes of the Fourth Amendment. See ante, at 271. And, as the Court of Appeals recognized, if the facts were as Albright alleged, then Oliver lacked cause
Yet in his presentations before this Court, Albright deliberately subordinated invocation of the Fourth Amendment and pressed, instead, a substantive due process right to be free from prosecution without probable cause.
Albright may have feared that courts would narrowly define the Fourth Amendment's key term "seizure" so as to deny full scope to his claim. In particular, he might have anticipated a holding that the "seizure" of his person ended when he was released from custody on bond, and a corresponding conclusion that Oliver's allegedly misleading testimony at the preliminary hearing escaped Fourth Amendment interdiction.
The Fourth Amendment's instruction to police officers seems to me more purposive and embracing. This Court has noted that the common law may aid contemporary inquiry into the meaning of the Amendment's term "seizure." See California v. Hodari D., 499 U.S. 621, 626, n. 2 (1991). At common law, an arrested person's seizure was deemed to
This view of the definition and duration of a seizure comports with common sense and common understanding. A person facing serious criminal charges is hardly freed from the state's control upon his release from a police officer's physical grip. He is required to appear in court at the state's command. He is often subject, as in this case, to the condition that he seek formal permission from the court (at significant expense) before exercising what would otherwise be his unquestioned right to travel outside the jurisdiction. Pending prosecution, his employment prospects may be diminished severely, he may suffer reputational harm, and he will experience the financial and emotional strain of preparing a defense.
This conception of a seizure and its course recognizes that the vitality of the Fourth Amendment depends upon its constant observance by police officers. For Oliver, the Fourth Amendment governed both the manner of, and the cause for, arresting Albright. If Oliver gave misleading testimony at the preliminary hearing, that testimony served to maintain and reinforce the unlawful haling of Albright into court, and so perpetuated the Fourth Amendment violation.
Once it is recognized, however, that Albright remained effectively "seized" for trial so long as the prosecution against him remained pending, and that Oliver's testimony at the preliminary hearing, if deliberately misleading, violated the Fourth Amendment by perpetuating the seizure, then the limitations period should have a different trigger. The time to file the § 1983 action should begin to run not at the start, but at the end of the episode in suit, i. e., upon dismissal of the criminal charges against Albright. See McCune v. Grand Rapids, 842 F.2d 903, 908 (CA6 1988) (Guy, J., concurring in result) ("Where . . . innocence is what makes the state action wrongful, it makes little sense to require a federal suit to be filed until innocence or its equivalent is established by the termination of the state procedures in a manner favorable to the state criminal defendant."). In sum, Albright's Fourth Amendment claim, asserted within the requisite period after dismissal of the criminal action, in my judgment was neither substantively deficient nor inevitably time barred. It was, however, a claim Albright abandoned in the District Court and did not attempt to reassert in this Court.
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In Graham v. Connor, 490 U.S. 386 (1989), this Court refused to analyze under a "substantive due process" heading an individual's right to be free from police applications of excessive force. "Because the Fourth Amendment provides an explicit textual source of constitutional protection against this sort of... governmental conduct," we said, "that Amendment, not the more generalized notion of `substantive due process,' must be the guide for analyzing these claims." Id., at 395. I conclude that the Fourth Amendment similarly proscribes the police misconduct Albright alleges. I therefore resist in this case the plea "to break new ground," see Collins v. Harker Heights, 503 U.S. 115, 125 (1992), in a field—substantive due process—that "has at times been a treacherous [one] for this Court." See Moore v. East Cleveland, 431 U.S. 494, 502 (1977) (opinion of Powell, J.).
JUSTICE KENNEDY, with whom JUSTICE THOMAS joins, concurring in the judgment.
I agree with the plurality that an allegation of arrest without probable cause must be analyzed under the Fourth Amendment without reference to more general considerations of due process. But I write because Albright's due process claim concerns not his arrest but instead the malicious initiation of a baseless criminal prosecution against him.
The State must, of course, comply with the constitutional requirements of due process before it convicts and sentences a person who has violated state law. The initial question here is whether the due process requirements for criminal proceedings include a standard for the initiation of a prosecution.
To be sure, we have held that a criminal rule or procedure that does not contravene one of the more specific guarantees of the Bill of Rights may nonetheless violate the Due Process Clause if it "`offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.'" Medina v. California, 505 U.S. 437, 445 (1992) (quoting Patterson v. New York, 432 U.S. 197, 202 (1977)). With respect to the initiation of charges, however, the specific guarantees contained in the Bill of Rights mirror the traditional requirements of the criminal process. The common law provided for a grand jury indictment and a speedy trial; it did not provide a specific evidentiary standard applicable to a pretrial hearing on the merits of the charges or subject to later review by the courts. See United States v. Williams, 504 U.S. 36, 51 (1992); Costello, supra, at 362-363; United States v. Reed, 27 F. Cas. 727, 738 (No. 16,134) (CC NDNY 1852) (Nelson, J.) ("No case has been cited, nor have we been able to find any, furnishing an authority for looking into and revising the judgment of the grand jury upon the evidence, for the purpose of determining whether or not the finding was founded upon sufficient proof").
Moreover, because the Constitution requires a speedy trial but no pretrial hearing on the sufficiency of the charges
In sum, the due process requirements for criminal proceedings do not include a standard for the initiation of a criminal prosecution.
That may not be the end of the due process inquiry, however. The common law of torts long recognized that a malicious prosecution, like a defamatory statement, can cause unjustified torment and anguish—both by tarnishing one's name and by costing the accused money in legal fees and the like. See generally W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts § 119, pp. 870-889 (5th ed. 1984); T. Cooley, Law of Torts 180-187 (1879). We have held, of course, that the Due Process Clause protects interests other than the interest in freedom from physical restraint, see Michael H. v. Gerald D., 491 U.S. 110, 121 (1989), and for purposes of this case, we can assume, arguendo, that some of the interests granted historical protection by the common law of torts (such as the interests in freedom from defamation and malicious prosecution)
The commonsense teaching of Parratt is that some questions of property, contract, and tort law are best resolved by state legal systems without resort to the federal courts, even when a state actor is the alleged wrongdoer. As we explained in Parratt, the contrary approach "would almost necessarily result in turning every alleged injury which may have been inflicted by a state official acting under `color of law' into a violation of the Fourteenth Amendment cognizable under § 1983. . . . Presumably, under this rationale any party who is involved in nothing more than an automobile accident with a state official could allege a constitutional violation under § 1983. Such reasoning `would make of the Fourteenth Amendment a font of tort law to be superimposed upon whatever systems may already be administered by the States.'" 451 U. S., at 544 (quoting Paul v. Davis, 424 U.S. 693, 701 (1976)). The Parratt principle respects the delicate balance between state and federal courts and comports with the design of § 1983, a statute that reinforces a legal tradition in which protection for persons and their rights is afforded by the common law and the laws of the States, as well as by the Constitution. See Parratt, supra, at 531-532.
Yet it is fair to say that courts, including our own, have been cautious in invoking the rule of Parratt. See Mann v. Tucson, 782 F.2d 790, 798 (CA9 1986) (Sneed, J., concurring).
But the price of our ambivalence over the outer limits of Parratt has been its dilution and, in some respects, its transformation into a mere pleading exercise. The Parratt rule has been avoided by attaching a substantive rather than procedural label to due process claims (a distinction that if accepted in this context could render Parratt a dead letter) and by treating claims based on the Due Process Clause as claims based on some other constitutional provision. See Taylor v. Knapp, 871 F.2d 803, 807 (CA9 1989) (Sneed, J., concurring). It has been avoided at the other end of the spectrum by construing complaints alleging a substantive injury as attacks on the adequacy of state procedures. See Zinermon v. Burch, 494 U.S. 113, 139-151 (1990) (O'CONNOR, J., dissenting); Easter House v. Felder, 910 F.2d 1387, 1408 (CA7 1990) (Easterbrook, J., concurring). These evasions are unjustified given the clarity of the Parratt rule: In the ordinary case where an injury has been caused not by a state law, policy, or procedure, but by a random and unauthorized act that can be remedied by state law, there is no basis for intervention under § 1983, at least in a suit based on "the Due Process Clause of the Fourteenth Amendment simpliciter." 451 U. S., at 536.
As Parratt's precedential force must be acknowledged, I think it disposes of this case. Illinois provides a tort remedy for malicious prosecution; indeed, Albright brought a state-law malicious prosecution claim, albeit after the statute of limitations had expired. (That fact does not affect the adequacy of the remedy under Parratt. See Daniels v. Williams, 474 U.S. 327, 342 (1986) (STEVENS, J., concurring).) Given the state remedy and the holding of Parratt, there is
That said, if a State did not provide a tort remedy for malicious prosecution, there would be force to the argument that the malicious initiation of a baseless criminal prosecution infringes an interest protected by the Due Process Clause and enforceable under § 1983. Compare Ingraham v. Wright, 430 U. S., at 676, id., at 701-702 (STEVENS, J., dissenting), and Board of Regents of State Colleges v. Roth, 408 U.S. 564, 573 (1972), with Paul v. Davis, supra, at 711-712; see PruneYard Shopping Center v. Robins, 447 U.S. 74, 93-94 (1980) (Marshall, J., concurring); Martinez v. California, 444 U.S. 277, 281-282 (1980); Munn v. Illinois, 94 U.S. 113, 134 (1877). But given the state tort remedy, we need not conduct that inquiry in this case.
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For these reasons, I concur in the judgment of the Court holding that the dismissal of petitioner Albright's complaint was proper.
JUSTICE SOUTER, concurring in the judgment.
While I agree with the Court's judgment that petitioner has not justified recognition of a substantive due process violation in his prosecution without probable cause, I reach that result by a route different from that of the plurality. The Court has previously rejected the proposition that the Constitution's application to a general subject (like prosecution) is necessarily exhausted by protection under particular textual guarantees addressing specific events within that subject (like search and seizure), on a theory that one specific constitutional provision can pre-empt a broad field as against another more general one. See United States v. James Daniel Good Real Property, ante, at 49 ("We have rejected the
We are, nonetheless, required by "[t]he doctrine of judicial self-restraint. . . to exercise the utmost care whenever we are asked to break new ground in [the] field" of substantive due process. Collins v. Harker Heights, 503 U.S. 115, 125 (1992). Just as the concept of due process does not protect against insubstantial impositions on liberty, neither should the "rational continuum" be reduced to the mere duplication of protections adequately addressed by other constitutional provisions. Justice Harlan could not infer that the due process guarantee was meant to protect against insubstantial burdens, and we are not free to infer that it was meant to be applied without thereby adding a substantial increment to protection otherwise available. The importance of recognizing the latter limitation is underscored by pragmatic concerns about subjecting government actors to two (potentially inconsistent) standards for the same conduct and needlessly
This rule of reserving due process for otherwise homeless substantial claims no doubt informs those decisions, see Graham v. Connor, 490 U.S. 386 (1989), Gerstein v. Pugh, 420 U.S. 103 (1975), and Whitley v. Albers, 475 U.S. 312, 327 (1986), in which the Court has resisted relying on the Due Process Clause when doing so would have duplicated protection that a more specific constitutional provision already bestowed.
In framing his claim of infringement of a liberty interest in freedom from the initiation of a baseless prosecution, petitioner has chosen to disclaim any reliance on the Fourth Amendment seizure that followed when he surrendered himself into police custody. Petitioner has failed, however, to allege any substantial injury that is attributable to the former event, but not the latter. His complaint presents an extensive list of damages: limitations on his liberty, freedom of association, and freedom of movement by virtue of the terms of his bond; financial expense of his legal defense; reputational harm among members of the community; inability to transact business or obtain employment in his local area, necessitating relocation to St. Louis; inability to secure credit; and personal pain and suffering. See App. to Pet. for Cert. 49a-50a. None of these injuries, however, is alleged to have followed from the issuance of the formal instrument of prosecution, as distinct from the ensuing assertion of custody. Thus, petitioner has not shown a substantial deprivation of liberty from the mere initiation of prosecution.
The significance of this failure follows from the recognition that none of petitioner's alleged injuries has been treated by the Courts of Appeals as beyond the ambit of compensability
Indeed, it is not surprising that rules of recovery for such harms have naturally coalesced under the Fourth Amendment, since the injuries usually occur only after an arrest or other Fourth Amendment seizure, an event that normally follows promptly (three days in this case) upon the formality of filing an indictment, information, or complaint. There is no restraint on movement until a seizure occurs or bond terms are imposed. Damage to reputation and all of its attendant harms also tend to show up after arrest. The defendant's mental anguish (whether premised on reputational harm, burden of defending, incarceration, or some other consequence
There may indeed be exceptional cases where some quantum of harm occurs in the interim period after groundless criminal charges are filed but before any Fourth Amendment seizure. Whether any such unusual case may reveal a substantial deprivation of liberty, and so justify a court in resting compensation on a want of government power or a limitation of it independent of the Fourth Amendment, are issues to be faced only when they arise. They do not arise in this case and I accordingly concur in the judgment of the Court.
JUSTICE STEVENS, with whom JUSTICE BLACKMUN joins, dissenting.
The Fifth Amendment to the Constitution constrains the power of the Federal Government to accuse a citizen of an infamous crime. Under that Amendment, no accusation may issue except on a grand jury determination that there is probable cause to support the accusation.
Assuming, as we must, that the allegations of petitioner's complaint are true, it is perfectly clear that the probable-cause requirement was not satisfied in this case. Indeed, it is plain that respondent Oliver, who attested to the criminal information against petitioner, either knew or should have known that he did not have probable cause to initiate criminal proceedings.
Oliver's only evidence against petitioner came from a paid informant who established her unreliability on more than 50 occasions, when her false accusations led to aborted and dismissed prosecutions.
Punishment by confinement in prison is a frequent conclusion of criminal proceedings. Had petitioner's prosecution resulted in his conviction and incarceration, then there is no question but that the Due Process Clause would have been implicated; a central purpose of the Fourteenth Amendment was to deny States the power to impose this sort of deprivation of liberty until after completion of a fair trial. Over the years, however, our cases have made it clear that the interests protected by the Due Process Clause extend well beyond freedom from an improper criminal conviction.
As a qualitative matter, we have decided that the liberty secured by the Fourteenth Amendment is significantly broader than mere freedom from physical constraint. Although its contours have never been defined precisely, that liberty surely includes the right to make basic decisions about the future; to participate in community affairs; to take advantage of employment opportunities; to cultivate family, business, and social relationships; and to travel from place to place.
In my opinion, the formal commencement of a criminal proceeding is quintessentially this type of state action. The initiation of a criminal prosecution, regardless of whether it
The next question, of course, is what measure of "due process" must be provided an accused in connection with this deprivation of liberty. In In re Winship, 397 U.S. 358, 361-364 (1970), we relied on both history and certain societal interests to find that, in the context of criminal conviction, due process entails proof of guilt beyond a reasonable doubt. The same considerations support a requirement that criminal prosecution be predicated, at a minimum, on a finding of probable cause.
It has been the historical practice in our jurisprudence to withhold the filing of criminal charges until the state can marshal evidence establishing probable cause that an identifiable defendant has committed a crime. This long tradition
Illinois has established procedures intended to ensure that evidence of "the probable guilt of the defendant," see Hurtado,
Fortunately, our prior cases have rejected such a formalistic approach to the Due Process Clause. In Mooney v. Holohan, 294 U.S. 103, 110 (1935), a criminal defendant claimed that the prosecutor's knowing use of perjured testimony, and deliberate suppression of evidence that would have impeached that testimony, constituted a denial of due process. The State urged us to reject this submission on the ground that the petitioner's trial had been free of procedural error. Our treatment of the State's argument should dispose of the analogous defense advanced today:
In the years since Mooney, we have consistently reaffirmed this understanding of the requirements of due process. Our cases make clear that procedural regularity notwithstanding, the Due Process Clause is violated by the knowing use of perjured testimony or the deliberate suppression of evidence favorable to the accused.
In short, we have already recognized that certain substantive defects can vitiate the protection ordinarily afforded by a trial, so that formal compliance with procedural rules is no longer enough to satisfy the demands of due process. The same is true of a facially valid determination of probable cause. Even if prescribed procedures are followed meticulously, a criminal prosecution based on perjured testimony, or evidence on which "no rational trier of fact" could base a finding of probable cause, cf. id., at 324, simply does not comport with the requirements of the Due Process Clause.
I do not understand the plurality to take issue with the proposition that commencement of a criminal case deprives the accused of liberty, or that the state has a duty to make a probable-cause determination before filing charges. Instead, both The Chief Justice and Justice Scalia identify petitioner's reliance on a "substantive due process" theory as the critical flaw in his argument. Because there is no substantive due process right available to petitioner, they
In my opinion, this approach places undue weight on the label petitioner has attached to his claim.
Indeed, the Fourth Amendment, upon which the plurality principally relies, provides both procedural and substantive protections, and these protections converge. When the Court first held that the right to be free from unreasonable official searches was "implicit in `the concept of ordered liberty,'" and therefore protected by the Due Process Clause of the Fourteenth Amendment, Wolf v. Colorado, 338 U.S. 25, 27-28 (1949), it refused to require the States to provide the procedures accorded in federal trials to protect that right.
Moreover, in Winship, we found it unnecessary to clarify whether our holding rested on substantive or procedural due process grounds; it was enough to say that the "Due
According to the plurality, the application of certain portions of the Bill of Rights to the States through the Fourteenth Amendment "has substituted, in these areas of criminal procedure, the specific guarantees of the various provisions of the Bill of Rights . . . for the more generalized language contained in the earlier cases construing the Fourteenth Amendment." Ante, at 273. The plurality then reasons, in purported reliance on Graham v. Connor, 490 U.S. 386 (1989), that because the Fourth Amendment is designed to address pretrial deprivations of liberty, petitioner's claim must be analyzed under that Amendment alone. Ante, at 273-274. In the end, however, THE CHIEF JUSTICE concludes that he need not consider petitioner's claim under the Fourth Amendment after all, because that question was not presented in the petition for certiorari. Ante, at 275.
There are two glaring flaws in the plurality's analysis. First, the pretrial deprivation of liberty at issue in this case is addressed by a particular Amendment, but not the Fourth; rather, it is addressed by the Grand Jury Clause of the Fifth Amendment. That the Framers saw fit to provide a specific procedural guarantee against arbitrary accusations indicates the importance they attached to the liberty interest at stake. Though we have not required the States to use the grand jury procedure itself, it by no means follows that the underlying liberty interest is unworthy of Fourteenth Amendment
Second, and of greater importance, the cramped view of the Fourteenth Amendment taken by the plurality has been rejected time and time again by this Court. In his famous dissenting opinion in Adamson v. California, 332 U.S. 46, 89-92 (1947), Justice Black took the position that the Due Process Clause of the Fourteenth Amendment makes the entire Bill of Rights applicable to the States. As a corollary, he advanced a theory not unlike that endorsed today by The CHIEF JUSTICE and JUSTICE SCALIA: that the express guarantees of the Bill of Rights mark the outer limit of Due Process Clause protection. Ibid. What is critical, for present purposes, is that the Adamson majority rejected this contention and held instead that the "ordered liberty" protected by the Due Process Clause is not coextensive with the specific provisions of the first eight Amendments to the Constitution. Justice Frankfurter's concurrence made this point perfectly clear:
In the years since Adamson, the Court has shown no inclination to reconsider its repudiation of Justice Black's position.
Perhaps most important, and virtually ignored by the plurality today, is our holding in In re Winship that "the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt." 397 U. S., at 364. Because the reasonable-doubt standard has no explicit textual source in the Bill of Rights, the Winship Court was faced with precisely the same argument now advanced by THE CHIEF JUSTICE and JUSTICE SCALIA: Noting the procedural guarantees for which the Bill of Rights specifically provides in criminal cases, Justice Black maintained that "[t]he Constitution thus goes into some detail to spell out what kind
Nevertheless, THE CHIEF JUSTICE and JUSTICE SCALIA seem intent on resuscitating a theory that has never been viable, by reading our opinion in Graham v. Connor more broadly than our actual holding. In Graham, which involved a claim of excessive force in the context of an arrest or investigatory stop, we held that "[b]ecause the Fourth Amendment provides an explicit textual source of constitutional protection against this sort of physically intrusive governmental conduct, that Amendment, not the more generalized notion of `substantive due process,' must be the guide for analyzing these claims." 490 U. S., at 395. Under Graham, then, the existence of a specific protection in the Bill of Rights that is incorporated by the Due Process Clause may preclude what would in any event be redundant reliance on a more general conception of liberty.
At bottom, the plurality opinion seems to rest on one fundamental misunderstanding: that the incorporation cases have somehow "substituted" the specific provisions of the Bill of Rights for the "more generalized language contained in the earlier cases construing the Fourteenth Amendment." Ante, at 273. In fact, the incorporation cases themselves rely on the very "generalized language" THE CHIEF JUSTICE would have them displacing.
I have no doubt that an official accusation of an infamous crime constitutes a deprivation of liberty worthy of constitutional protection. The Framers of the Bill of Rights so concluded, and there is no reason to believe that the sponsors of the Fourteenth Amendment held a different view. The Due Process Clause of that Amendment should therefore be construed to require a responsible determination of probable cause before such a deprivation is effected.
A separate comment on JUSTICE GINSBURG'S opinion is appropriate. I agree with her explanation of why the initial seizure of petitioner continued until his discharge and why the seizure was constitutionally unreasonable. Had it been conducted by a federal officer, it would have violated the Fourth Amendment. And, because unreasonable official seizures by state officers are deprivations of liberty or property without due process of law, the seizure of petitioner violated the Fourteenth Amendment. Accordingly, JUSTICE GINSBURG is correct in concluding that the complaint sufficiently alleges a cause of action under 42 U. S. C. § 1983.
Having concluded that the complaint states a cause of action, however, her opinion does not adequately explain why a dismissal of that complaint should be affirmed. Her submission, as I understand it, rests on the propositions that (1) petitioner abandoned a meritorious claim based on the component of the Due Process Clause of the Fourteenth Amendment that is coterminous with the Fourth Amendment;
In the Bill of Rights, the Framers provided constitutional protection against unfounded felony accusations in the Grand Jury Clause of the Fifth Amendment and separate protection against unwarranted arrests in the Fourth Amendment. Quite obviously, they did not regard the latter protection as sufficient to avoid the harm associated with an irresponsible official accusation of serious criminal conduct. Therefore, although in most cases an arrest or summons to appear in court may promptly follow the initiation of criminal proceedings, the accusation itself causes a harm that is analytically, and often temporally, distinct from the arrest. In this very case, the petitioner suffered a significant injury before he voluntarily surrendered.
Because the constitutional protection against unfounded accusations is distinct from, and somewhat broader than, the protection against unreasonable seizures, there is no reason why an abandonment of a claim based on the seizure should constitute a waiver of the claim based on the accusation. Moreover, a case holding that allegations of police misconduct in connection with an arrest or seizure are adequately reviewed under the Fourth Amendment's reasonableness standard, Graham v. Connor, 490 U.S. 386 (1989), tells us nothing about how unwarranted accusations should be evaluated.
Graham merely held that the due process right to be free from police applications of excessive force when state officers effect a seizure is governed by the same reasonableness standard as that governing seizures effected by federal officers. Id., at 394-395. In the unlawful seizure context exemplified by Graham, there is no need to differentiate between a so-called Fourth Amendment theory and a substantive due process theory because they are coextensive.
When, however, the scope of the Fourth Amendment protection does not fully encompass the liberty interest at stake—as in this case—it is both unwise and unfair to place a blinder on the lens that focuses on the specific right being asserted. Although history teaches us that the Fourth and Fifth Amendments have been viewed "as running `almost into each other,'" Mapp v. Ohio, 367 U. S., at 646, quoting Boyd v. United States, 116 U.S. 616, 630 (1886), and citing Entick v. Carrington, 19 How. St. Tr. 1029 (C. P. 1765), we have never previously thought that the area of overlapping protection should constrain the independent protection provided by either.
Although JUSTICE SOUTER leaves open the possibility that in some future case, a due process claim could be stated for a prosecution absent probable cause, he concludes that this is not such a case. He is persuaded that the federal remedy for Fourth Amendment violations provides an adequate justification for refusing to "`break new ground' " by recognizing the "novel due process right" asserted by petitioner. Ante, at 287, 288. Like THE CHIEF JUSTICE, ante, at 271, 275, and JUSTICE GINSBURG, ante, at 281, he points to Collins v. Harker Heights, 503 U.S. 115 (1992), as a pertinent example of our reluctance "to expand the concept of substantive due process . . . in [an] unchartered area." Id., at 125. Our relevant holding in that case was that a city's failure to provide an employee with a reasonably safe place to work did not violate the Federal Constitution. We unanimously characterized the petitioner's constitutional claim as "unprecedented." Id., at 127. The contrast between Collins and this case could not be more stark.
The lineage of the constitutional right asserted in this case dates back to the Magna Carta. See n. 2, supra. In an
Moreover, most of the Courts of Appeals have treated claims of prosecutions without probable cause as within "the ambit of compensability under the general rule of 42 U. S. C. § 1983 liability," see ante, at 289-290 (SOUTER, J., concurring in judgment). See, e. g., Golino v. New Haven, 950 F.2d 864, 866-867 (CA2 1991) (and case cited therein), cert. denied, 505 U.S. 1221 (1992); Robinson v. Maruffi, 895 F.2d 649, 654-657 (CA10 1990) (citing cases); Torres v. Superintendent of Police of Puerto Rico, 893 F.2d 404, 408 (CA1 1990) (citing cases, and finding cause of action if "egregious"); Goodwin v. Metts, 885 F.2d 157, 162 (CA4 1989) (citing cases), cert. denied, 494 U.S. 1081 (1990); Rose v. Bartle, 871 F.2d 331, 348-349 (CA3 1989) (citing cases); Strength v. Hubert, 854 F.2d 421 (CA11 1988); Wheeler v. Cosden Oil & Chemical Co., 734 F.2d 254 (CA5 1984).
Given the abundance of precedent in the Courts of Appeals, the vintage of the liberty interest at stake, and the fact that the Fifth Amendment categorically forbids the Federal Government from initiating a felony prosecution without presentment to a grand jury, it is quite wrong to characterize petitioner's claim as an invitation to enter unchartered territory. On the contrary, the claim is manifestly of constitutional dimension.
While the supposed adequacy of an alternative federal remedy persuades JUSTICES GINSBURG and SOUTER that petitioner's claim fails, the availability of an alternative state remedy convinces JUSTICE KENNEDY. I must therefore explain why I do not agree with his reliance on Parratt v. Taylor, 451 U.S. 527 (1981). In 1975, I helped plant the seed that ultimately flowered into the Parratt doctrine. See Bonner v. Coughlin, 517 F.2d 1311, 1318-1319 (CA7 1975), modified en banc, 545 F.2d 565 (1976), cert. denied, 435 U.S. 932 (1978) (cited in Parratt v. Taylor, 451 U. S., at 541-542). The plaintiff in Bonner, like the plaintiff in Parratt, claimed that the negligence of state agents had deprived him of a property interest "without due process of law." In both cases, the claim was rejected because a predeprivation remedy was infeasible and the State's postdeprivation remedy was considered adequate to prevent a constitutional violation. Parratt v. Taylor, 451 U. S., at 543-544; Bonner v. Coughlin, 517 F. 2d, at 1319-1320. Both of those cases involved the type of ordinary common-law tort that can be committed by anyone. Such torts are not deprivations "without due process" simply because the tortfeasor is a public official.
The rationale of those cases is inapplicable to this case whether one views the claim at issue as substantive or procedural.
The remedy for a violation of the Fourteenth Amendment's Due Process Clause provided by § 1983 is not limited, as JUSTICE KENNEDY posits, ante, at 285, to cases in which the injury has been caused by "a state law, policy, or procedure." One of the primary purposes of § 1983 was to provide a remedy "against those who representing a State in some capacity were unable or unwilling to enforce a state law." Monroe v. Pape, 365 U. S., at 175-176 (emphasis in original). Therefore, despite his suggestion to the contrary, ante, at 285, JUSTICE KENNEDY'S interpretation of Parratt is in direct conflict with both the language and the purposes of § 1983. See Monroe v. Pape, 365 U. S., at 172-187.
Section 1983 provides a federal cause of action against "[e]very person" who under color of state authority causes the "deprivation of any rights, privileges, or immunities secured by the Constitution and laws." 42 U. S. C. § 1983. The Parratt doctrine is reconcilable with § 1983 only when its application is limited to situations in which no constitutional violation occurs. In the context of certain deprivations of property, due process is afforded—and therefore the Constitution is not violated—if an adequate postdeprivation state remedy is available in practice to provide either the property's prompt return or an equivalent compensation. See Bonner v. Coughlin, 517 F. 2d, at 1320. In other contexts, however, including criminal cases and most cases involving a deprivation of liberty, the deprivation is complete, and the Due Process Clause has been violated, when the loss of liberty occurs.
The Court's judgment of affirmance is supported by five different opinions. Significantly, none of them endorses the reasoning of the Court of Appeals, and none of them commands a majority. Of greatest importance, in the aggregate those opinions do not reject my principal submission: the Due Process Clause of the Fourteenth Amendment constrains the power of state governments to accuse a citizen of an infamous crime.
I respectfully dissent.
Richard Ruda filed a brief for the National League of Cities et al. as amici curiae urging affirmance.
Similarly, other cases relied on by the dissent, including Mooney v. Holohan, 294 U.S. 103 (1935), Napue v. Illinois, 360 U.S. 264 (1959), Brady v. Maryland, 373 U.S. 83 (1963), Giglio v. United States, 405 U.S. 150 (1972), and United States v. Agurs, 427 U.S. 97 (1976), were accurately described in the latter opinion as "dealing with the defendant's right to a fair trial mandated by the Due Process Clause of the Fifth Amendment to the Constitution." Id., at 107.
In fact, Albright's theory might succeed in exonerating the supporting actor as well. By focusing on the police officer's role in initiating and pursuing a criminal prosecution, rather than his role in effectuating and maintaining a seizure, Albright's theory raises serious questions about whether the police officer would be entitled to share the prosecutor's absolute immunity. See post, at 308-309, n. 26 (STEVENS, J., dissenting) (noting that the issue is open); cf. Briscoe v. LaHue, 460 U.S. 325, 326 (1983) (holding that § 1983 does not "authoriz[e] a convicted person to assert a claim for damages against a police officer for giving perjured testimony at his criminal trial"). A right to sue someone who is absolutely immune from suit would hardly be a right worth pursuing.
"Applied in England only as guards against executive usurpation and tyranny, here they have become bulwarks also against arbitrary legislation; but, in that application, as it would be incongruous to measure and restrict them by the ancient customary English law, they must be held to guarantee not particular forms of procedure, but the very substance of individual rights to life, liberty, and property.
"... Such regulations, to adopt a sentence of Burke's, `may alter the mode and application but have no power over the substance of original justice.'"
"While this Court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men." Id., at 399 (citations omitted).
Furthermore, although JUSTICE GINSBURG speculates that respondent may be fully protected from damages liability by an immunity defense, ante, at 279, and n. 5, that issue is neither free of difficulty, cf. Buckley v. Fitzsimmons, 509 U.S. 259 (1993), nor properly before us. See plurality opinion, ante, at 269, n. 3. The question on which we granted certiorari is whether the initiation of criminal charges absent probable cause is a deprivation of liberty protected by the Due Process Clause. Neither the fact that the seizure caused by petitioner's arrest also deprived him of liberty, nor the possible availability of an affirmative defense, is a sufficient reason for failing to discuss or decide this question. The question whether one is protected by the Due Process Clause from unfounded prosecutions has implications beyond whether damages are ultimately obtainable. Indeed, in this very case petitioner's complaint sought injunctive relief in addition to damages.