A person under pretrial restrictions and ordered to appear (not merely summoned) is “seized” under the Fourth Amendment. The court adopts Justice Ginsberg’s Albright concurrence. Black v. Montgomery County, 2016 U.S. App. LEXIS 15997 (3d Cir. Aug. 30, 2016):
We have described the analysis in Justice Ginsburg’s Albright concurrence as “compelling and supported by Supreme Court case law,” Gallo v. City of Phila., 161 F.3d 217, 223 (3d Cir. 1998), and have expressly adopted her concept of “continuing seizure,” Schneyder, 653 F.3d at 319. Further, we have explained that under this view, “[p]re-trial restrictions of liberty aimed at securing a suspect’s court attendance are all ‘seizures’ … [because] the difference between detention in jail, release on bond, and release subject to compliance with other conditions is in the degree of restriction on the individual’s liberty, not in the kind of restriction.” Id. at 320.
We subsequently applied Justice Ginsburg’s analysis to determine whether a person was seized for Fourth Amendment purposes. In Gallo v. City of Philadelphia, we held that a plaintiff seeking section 1983 relief for violation of his Fourth Amendment rights was seized post-indictment because he had to post a $10,000 bond, attend court hearings including his trial and arraignment, contact Pretrial Services on a weekly basis, and was prohibited from travelling outside of two states, New Jersey and Pennsylvania. 161 F.3d at 222. Noting that we had adopted “a broad approach in considering what constitutes a seizure,” id. at 224, we concluded “that the combination of restrictions imposed upon Gallo, because they intentionally limited his liberty, constituted a seizure,” id. at 225.
In contrast, in DiBella v. Borough of Beachwood, we held that the plaintiffs were not seized when “only issued a summons; they were never arrested; they never posted bail; they were free to travel; and they did not have to report to Pretrial Services.” 407 F.3d at 603. We noted that unlike the “significant pretrial restrictions” imposed in Gallo, the plaintiffs’ liberty in DiBella was restricted only during their municipal court trial and that merely attending trial does amount to a seizure for Fourth Amendment purposes. Id. We further explained that “[p]retrial custody and some onerous types of pretrial, non-custodial restrictions constitute a Fourth Amendment seizure.” Id.
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Turning to the facts alleged in this case and applying pertinent case law, we conclude that Black was seized for Fourth Amendment purposes. Black, insofar as she was charged with arson and other crimes, meets Justice Ginsburg’s threshold of “[a] person facing serious criminal charges.” Albright, 510 U.S. at 278 (Ginsburg, J., concurring). Black’s liberty was subject to constitutionally significant restraints by the defendants, according to the complaint.
Less than one month after being interrogated by police and accused of committing arson, Black flew from her home in California to Pennsylvania for her arraignment because an arrest warrant had been issued and she had been directed to return. See Gallo, 161 F.3d at 223 (“When he was obliged to go to court and answer the charges against him, Gallo, like the plaintiff in Terry, was brought to a stop. … [I]t is difficult to distinguish this kind of halt from the exercise of authority deemed to be a seizure in Terry.”). She spent more than an hour being fingerprinted and photographed at a police station — and she was clearly not free to leave. See Mendenhall, 446 U.S. at 554 (plurality). Black was required to post unsecured bail of $50,000. She was told that the bond would be forfeited if she did not attend all court proceedings — compelling her to travel across the United States to attend pre-trial hearings. Even though Black was never incarcerated, that “should not lead to the conclusion that a defendant released pretrial is not still ‘seized’ in the constitutionally relevant sense.” Albright, 510 U.S. at 279 (Ginsburg, J., concurring). Further, the cloud of very serious charges demonstrates that Black was “hardly freed from the state’s control upon [her] release from a police officer’s physical grip.” Id. at 278.
The defendants seek to distinguish this case from other similar cases by pointing out that the Pennsylvania state court handling Black’s criminal proceedings did not impose a formal limitation on her travel. However, in Gallo, we determined that the plaintiff’s “liberty was restrained through travel restrictions and mandatory court appearances.” 161 F.3d at 225 (emphasis added); see also id. at 224-25 (“[C]onstraints on Gallo’s freedom were not limited to restrictions on his travel, he was also compelled to attend all court hearings.”). Accordingly, it is significant that Black was required to fly from California to Pennsylvania for twelve pre-trial conferences in just a year “to appear in court at the state’s command.” Albright, 510 U.S. at 278 (Ginsburg, J., concurring); see Swartz v. Insogna, 704 F.3d 105, 112 (2d Cir. 2013) (“We have consistently held that a post-arraignment defendant who is ‘obligated to appear in court in connection with [criminal] charges whenever his attendance [i]s required’ suffers a Fourth Amendment deprivation of liberty.” (quoting Murphy v. Lynn, 118 F.3d 938, 946 (2d Cir. 1997)). Black was forced to travel this great distance — presumably at great expense — a dozen times to defend herself. This demonstrates that Black was “scarcely at liberty; [s]he remain[ed] apprehended, arrested in [her] movements, indeed ‘seized’ for trial, so long as [s]he [was] bound to appear in court and answer the state’s charges.” Albright, 510 U.S. at 279 (Ginsburg, J., concurring). In contrast to Gallo and DiBella, Black did not live in the jurisdiction where she was tried and if she did not travel, she faced serious charges and a possibility of incarceration. Further, Black’s life was presumably disrupted by the compulsion that she travel out of state a dozen times. See generally id. at 278 (“Pending prosecution, [her] employment prospects may be diminished severely, [s]he may suffer reputational harm, and [s]he will experience the financial and emotional strain of preparing a defense.”). Black’s circumstances demonstrate that she experienced “constitutionally significant restrictions on [her] freedom of movement for the purpose of obtaining h[er] presence at a judicial proceeding” and she was “seized within the meaning of the Fourth Amendment.” Schneyder, 653 F.3d at 321-22.
Considering the totality of the circumstances alleged, Black has sufficiently alleged that her liberty was intentionally restrained by the defendants. Accordingly, we will vacate the District Court’s determination that she was not seized as is required for a Fourth Amendment malicious prosecution claim.
