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A 15-year-old, who spent eight years in prison convicted of a Chicago murder and was ultimately released when his conviction was overturned, cannot seek damages for false arrest and an allegedly coerced confession because he did not sue at the time of his arrest. The 7th Circuit overturned two prior precedents and broke with circuits around the country to create a hard-and- fast rule that civil rights suits seeking damages for false arrest, illegal search or coerced confessions must be brought at the time of arrest-not after the conviction is voided. In addition, the circuit’s holding would limit damages to the period between arrest and arraignment, not for the eight years spent in prison, Wallace v. City of Chicago, No. 04-3949. Most circuits have held that the claim for damages accrues when the conviction has been invalidated, according to a strongly worded dissent by Judge Richard Posner, who argued unsuccessfully that the full court should reconsider the panel decision. It was one of Posner’s earlier precedent-setting decisions that the panel overturned, Gauger v. Hendle, 349 F.3d 354 (2003). A ‘lonely path’ “The real evil of the majority isn’t that you have to sue within two years of when you’re [falsely] arrested, it is that the damages end when you’re arraigned,” said Kenneth Flaxman, a solo practitioner in Chicago representing Andre Wallace. Flaxman said that he would file an appeal with the U.S. Supreme Court this week seeking to clear up the circuit conflict and allow Wallace to press his civil rights claim. Said Posner, “The panel’s decision puts the squeeze on these plaintiffs, contrary to normal principles of accrual, which do not force you-in fact do not allow you-to sue before you have a claim.” He wrote that the circuit is “forging a lonely path” among the circuits. The 2d, 4th, 5th, 6th and 9th circuits have held that false arrest claims cannot be brought until the conviction is nullified, according to the panel opinion by Judge Diane Wood. She said five other circuits hold that false arrest claims accrue at the time of arrest, and she sided with them. The circuits are the 1st, 3rd, 8th, 10th and 11th. But Posner said that the majority characterization is “incorrect.” None of the cases in those five circuits says the claims “always” accrue at arrest, only that it normally does, but may accrue later in some cases. In 2002, an Illinois appellate court found that Chicago police arrested Wallace without probable cause and that his confession was tainted by the illegal arrest, according to the majority opinion. He was suspected of killing John Handy in 1994 while Handy worked as a house sitter for a construction company. Police suspected Wallace was acting as security for drug dealers in the area and Handy had allegedly previously confronted the dealers, according to the Cook County Circuit Judge James Schreier. Police held Wallace and others for questioning all night, and Wallace allegedly agreed to confess after he was told he could go home once he gave a statement, the opinion states. At trial, Wallace claimed self-defense in the shooting of Handy, according to Stacy Benjamin, assistant corporation counsel for Chicago, who represented the police officers. Benjamin said that the opinion “provides more clarity in this area of constitutional law and will allow for more summary judgment success” for the city. She said that Wallace had remedies at the time if he wanted to complain that police “beat him up to get a confession. He should have filed immediately. There is a statute of limitations for a reason.” Flaxman said that four of the circuits cited by the majority have issued more recent decisions showing that a general trend among the circuits has been to use a case-by-case, fact-based analysis, rather than a bright-line rule requiring that a claim be made at the time of arrest. Posner wrote, “I count 12 cases to 0 against the panel’s approach . . . .So one-sided a score should give us pause.”

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