DENNIS JACOBS, Chief Judge:
Judith A. Burg, a dog owner, appeals from a final judgment of the United States District Court for the District of Connecticut (Hall, J.), dismissing on summary judgment her Section 1983 complaint against a canine control officer. The district court held that issuance of a pre-arraignment, non-felony summons requiring a later court appearance, without further restraint, does not constitute a Fourth Amendment seizure. We agree, and affirm.
Defendant Colleen Gosselin, a canine control officer in the Connecticut town of East Hampton, received a complaint about Burg's dog. Six days later, on October 26, 2005, Gosselin issued a summons to Burg at her home, requiring Burg to appear in court at a later date. It is not clear whether the dog was trespassing or barking; but Burg's alleged offense, if a first offense, was an infraction.
Sometime after November 8, 2005, Burg was arrested for failure to appear, handcuffed, and taken into physical custody.
Burg asserts that the underlying charge against her eventually was dismissed. On August 21, 2007, Burg sued Gosselin in her individual capacity pursuant to 42 U.S.C. § 1983, on the ground that Gosselin's issuance of the summons on October 26, 2005 constituted an unreasonable seizure in violation of the Fourth Amendment. Gosselin moved for summary judgment. In a telephone conference on February 12, 2009, the district court orally granted summary judgment on the ground that, as a matter of law, a pre-arraignment, non-felony summons does not constitute a Fourth Amendment seizure.
"Whether a mere pre-arraignment summons constitutes a Fourth Amendment `seizure' is ... a difficult issue and one that has not yet been resolved in this Circuit." Dorman v. Castro, 347 F.3d 409, 411 (2d Cir.2003) (emphasis in original) (per curiam).
"We review a district court's decision to grant summary judgment de novo, resolving all ambiguities and drawing all permissible factual inferences in favor of the party against whom summary judgment is sought." Wright v. Goord, 554 F.3d 255, 266 (2d Cir.2009) (internal quotation marks, citation, and brackets omitted); see also Fed.R.Civ.P. 56(c).
A Section 1983 claim requires a showing that the plaintiff was deprived of "rights, privileges, or immunities secured by the Constitution and laws." 42 U.S.C. § 1983. Section 1983 claims of deprivations of liberty related to criminal prosecutions implicate the Fourth Amendment right to be free of unreasonable seizure of the person. See Albright v. Oliver, 510 U.S. 266, 271, 274, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994); Singer v. Fulton County Sheriff, 63 F.3d 110, 115 (2d Cir. 1995) ("[T]he Fourth Amendment is the proper source of constitutional protection for claims, such as malicious prosecution, that implicate a person's liberty interest in respect of criminal prosecutions (and, in particular, one's pretrial liberty)."). Accordingly, a plaintiff asserting such a claim must "show some deprivation of liberty consistent with the concept of `seizure.'" Singer, 63 F.3d at 116.
In a one-Justice concurrence in Albright, Justice Ginsburg opined that restrictive conditions of pretrial release on a felony charge constitute a Fourth Amendment seizure:
In Murphy v. Lynn, 118 F.3d 938 (2d Cir.1997), a defendant accused of offenses that included two felonies was released post-arraignment, but was ordered "not [to] leave the State of New York pending resolution of the charges against him," thereby restricting his "constitutional right to travel outside of the state," and was "obligated to appear in court in connection with those charges whenever his attendance was required" (culminating in "some eight [appearances] during the year in which his criminal proceeding was pending"). Murphy, 118 F.3d at 946. We ruled that these "restrictions imposed on Murphy constituted a seizure within the meaning of the Fourth Amendment."
In the wake of Murphy, the district courts in this Circuit have divided on whether a summons requiring a later court appearance—without further restraint— amounts to a Fourth Amendment seizure.
We hold that the issuance of a pre-arraignment, non-felony summons requiring a later court appearance, without further restrictions, does not constitute a Fourth Amendment seizure. This summons does no more than require Burg to appear in court on a single occasion, and operates to effectuate due process. There is no restriction on travel, which mattered in Murphy. Moreover, in Murphy, there were eight court appearances, not the single appearance required by the summons issued by Gosselin. The number of appearances may bear upon whether there was a seizure-though it is hard to see how multiple appearances required by a court, or for the convenience of the person answering the summons, can be attributed to the conduct of the officer who issues it.
Other Circuits that have considered this issue have uniformly determined that such a summons (at least one that requires no more than a single court appearance) does not constitute a Fourth Amendment seizure.
The First Circuit held that "[a]bsent any evidence that [the plaintiff] was arrested, detained, restricted in his travel, or otherwise subject to a deprivation of his liberty before the charges against him were dismissed, the fact that he was given a date to appear in court is insufficient to establish a seizure within the meaning of the Fourth Amendment." Britton v. Maloney, 196 F.3d 24, 30 (1st Cir.1999). The court explained:
Id. at 29-30.
The Third Circuit, in DiBella v. Borough of Beachwood, 407 F.3d 599, 602-03 (3d Cir.2005), arrived at the same conclusion. In so doing, DiBella distinguished an earlier case, Gallo v. City of Philadelphia, 161 F.3d 217, 224 (3d Cir.1998), in which the plaintiff was arrested, posted bond, and then was prohibited from traveling outside Pennsylvania and New Jersey, required to contact Pretrial Services on a weekly basis, and required to attend all court hearings. DiBella explained that a summons and "attendance at trial did not qualify as a Fourth Amendment seizure":
Id. at 603 (internal quotation marks and citations omitted).
The Sixth Circuit held that the issuance of a parking ticket was not a seizure. The court distinguished Justice Ginsburg's Albright concurrence and an earlier Sixth Circuit case, Bacon v. Patera, 772 F.2d 259, 265 (6th Cir.1985):
DePiero v. City of Macedonia, 180 F.3d 770, 789 (6th Cir.1999).
The Seventh Circuit determined that the issuance of a summons by the prosecutor, an order not to leave Illinois without the permission of the court, and a required interview with a probation officer did not rise to the level of a Fourth Amendment seizure: "No court has held that a summons alone constitutes a seizure, and we conclude that a summons alone does not equal a seizure for Fourth Amendment purposes. To hold otherwise would transform every traffic ticket and jury summons into a potential Section 1983 claim." Bielanski v. County of Kane, 550 F.3d 632, 642 (7th Cir.2008).
The Eighth Circuit, in determining that the pre-Albright conduct of a Special Agent of the Bureau of Alcohol, Tobacco, and Firearms could not have violated a clearly established constitutional right (in the context of a qualified immunity analysis), observed that "[t]his circuit has never held that pretrial restrictions such as [a summons and posting bond] constitute a Fourth Amendment seizure." Technical Ordnance, Inc. v. United States, 244 F.3d 641, 651 (8th Cir.2001).
In a Ninth Circuit case, the plaintiff elected to appear at the Burbank Municipal Court (rather than be arrested), and became subject to an "Own-Recognizance Release Agreement"—which required her "to obtain permission from the court before leaving the state of California" and "to appear in court three weeks hence (presumably for arraignment or trial) and at all other times and places ordered by the court." Karam v. City of Burbank, 352 F.3d 1188, 1191 (9th Cir.2003) (internal quotation marks omitted). The Ninth Circuit observed that "[c]ases decided by our sister circuits in which they have concluded there was a seizure incident to a pre-trial release have involved conditions significantly more restrictive than those in
Id. at 1194 (internal citation omitted).
The Tenth Circuit held that "the mere issuance of a citation requiring presence at future legal proceedings does not qualify as a constitutional `seizure.'" Martinez v. Carr, 479 F.3d 1292, 1299 (10th Cir.2007). A contrary ruling "would surely disincentivize the use of citations, at least to a certain degree, a result inconsistent with the desire to mitigate intrusiveness on private citizens and recent efforts to encourage the use of citation in lieu of arrest procedure." Id. at 1297.
Finally, the Eleventh Circuit ruled that conditions of pretrial release did not amount to a seizure. See Kingsland v. City of Miami, 382 F.3d 1220, 1236 (11th Cir.2004). After her automobile accident with an off-duty police officer, the plaintiff was "handcuffed, transported to the Dade County jail, and charged with DUI. Her father posted a $1,000.00 bond the following day, and she was subsequently arraigned on charges of careless driving, reckless driving, and DUI. [The plaintiff] made two trips from New Jersey to Florida to appear in court on these charges." Id. at 1223-25.
We therefore are joining a consensus of appellate courts in holding that a pre-arraignment, non-felony summons requiring no more than a later court appearance does not constitute a Fourth Amendment seizure.
For the foregoing reasons, we affirm the judgment of the district court.