The Supreme Court/The Supreme Court.iso/pc/ascii/1992/92_833/92_833.zc3

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SUPREME COURT OF THE UNITED STATES
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No. 92-833
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KEVIN ALBRIGHT, PETITIONER v. ROGER
OLIVER, etc., et al.
on writ of certiorari to the united states court
of appeals for the seventh circuit
[January 24, 1994]

  Justice Souter, concurring in the judgment.
  While I agree with the Court's judgment that petition-
er 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 ex-
hausted by protection under particular textual guaran-
tees 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, 510 U. S. ___, ___
(1993) (slip op., at 5) (-We have rejected the view that
the applicability of one constitutional amendment pre-
empts the guarantees of another-); Soldal v. Cook
County, 506 U. S. ___, ___ (1992) (slip op., at 14)
(-Certain wrongs affect more than a single right and,
accordingly, can implicate more than one of the
Constitution's commands.  Where such multiple viola-
tions are alleged, we are not in the habit of identifying
as a preliminary matter the claim's `dominant' character.
Rather, we examine each constitutional provision in
turn-).  It has likewise rejected the view that incorpora-
tion of the substantive guarantees of the first eight
amendments of the Constitution defines the limits of due
process protection, see Adamson v. California, 332 U. S.
46, 89-92 (1947) (Black, J., dissenting).  The second
Justice Harlan put it this way:
-[T]he full scope of the liberty guaranteed by the
Due Process Clause . . . is not a series of isolated
points . . . .  It is a rational continuum which,
broadly speaking, includes a freedom from all
substantial arbitrary impositions and purposeless
restraints . . . .-  Poe v. Ullman, 367 U. S. 497, 543
(1961) (dissenting opinion).
  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. ___, ___ (1992) (slip op., at 9).  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 constitu-
tional 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 imposing
on trial courts the unenviable burden of reconciling well-
established jurisprudence under the Fourth and Eighth
Amendments with the ill-defined contours of some novel
due process right.
  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 against relying on the Due Process Clause
when doing so would have duplicated protection that a
more specific constitutional provision already bestowed.
This case calls for just such restraint, in presenting no
substantial burden on liberty beyond what the Fourth
Amendment is generally thought to redress already.
  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 associa-
tion, and freedom of movement by virtue of the terms of
his bond; financial expense of his legal defense; reputa-
tional 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 under the general rule of 42
U. S. C. 1983 liability for a seizure unlawful under
Fourth Amendment standards, see Tennessee v. Garner,
471 U. S. 1 (1985) (affirming 1983 liability based on
Fourth Amendment violation); Brower v. County of Inyo,
489 U. S. 593, 599 (1989) (unreasonable seizure in
violation of the Fourth Amendment gives rise to 1983
liability).  On the contrary, the Courts of Appeals have
held that injuries like those petitioner alleges are
cognizable in 1983 claims founded upon arrests that
are bad under the Fourth Amendment.  See, e.g., Hale
v. Fish, 899 F. 2d 390, 403-404 (CA5 1990) (affirming
award of damages for mental anguish, harm to reputa-
tion, and legal fees for defense); B. C. R. Transport Co.,
Inc. v. Fontaine, 727 F. 2d 7, 12 (CA1 1984) (affirming
award of damages for destruction of business due to
publicity surrounding illegal search); Sims v. Mulcahy,
902 F. 2d 524, 532-533 (CA7 1990) (approving damages
for pain, suffering, and mental anguish in the context of
a challenge to jury instructions); Sevigny v. Dicksey, 846
F. 2d 953, 959 (CA4 1988) (affirming damages for
extreme emotional distress); Dennis v. Warren, 779 F. 2d
245, 248-249 (CA5 1985) (affirming award of damages
for pain, suffering, humiliation, and embarrassment);
Konczak v. Tyrrell, 603 F. 2d 13, 17 (CA7 1979) (affirm-
ing damages for lost wages, mental distress, humiliation,
loss of reputation, and general pain and suffering).
  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 (3 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 of
prosecution) customarily will not arise before an arrest,
or at least before the notification that an arrest warrant
has been issued informs him of the charges.
  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.