In other words, Graham and Wilkins agree that the Fourth Amendment applies until the initial seizure comes to an end, but Graham seems to hold, contrary to Wilkins, that when the police beat an individual senseless after gaining control over (initially seizing) him, the Fourth Amendment still can provide the appropriate framework for assessing the lawfulness of their conduct. Graham thus appears to undercut Wilkins's view that a seizure ends at the moment the police gain custody and control over the suspect.
If the seizure does not end then, then when does it end? Without its "custody" rationale, Wilkins leaves us with a holding that a seizure is over by the time custodial interrogation begins, but no principled basis for reaching this result. In Jones v. County of DuPage, 700 F. Supp. 965 (N.D.Ill. 1988), decided after Lester but before Wilkins and Graham, this court ruled that, at least in the case of a warrantless arrest, "seizure ends and detention begins" when the police bring the arrestee before a judicial officer for a probable cause determination. Id. at 970. Analogies from other areas of Fourth Amendment law suggested this division, see Gerstein v. Pugh, 420 U.S. 103, 43 L. Ed. 2d 54, 95 S. Ct. 854 (1975), and practical concerns supported imposing a higher standard of care on officers until such time as they receive judicial approval for their seizures. See 700 F. Supp. at 970-71. Without citing Jones, Wilkins rejected the analysis. Its reasons for doing so, however, prove significant.
Gerstein had held that "the Fourth Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint of liberty following arrest." 420 U.S. at 114. Jones found Gerstein instructive in determining the time at which a seizure comes to an end, reasoning that Gerstein's ruling that a state may not subject a person to pretrial detention without a judicial determination of probable cause supports the view that a seizure does not become a detention until such a determination is obtained. 700 F. Supp. at 970. Wilkins acknowledged an analogy between Gerstein and the question of when a seizure ends in an excessive force case, 872 F.2d at 193, but pointed out that because Gerstein involved an interpretation of the Fourth Amendment's requirement of probable cause, rather than its Reasonableness Clause, it did not necessarily control in the excessive force context. Id.
Jones, too, recognized that Gerstein served only as an analogy, not a precedent.
700 F. Supp. at 970. Turning to practical considerations, Jones then determined that an individual's enhanced vulnerability, and an officer's higher emotional state, prior to the individual's appearance before a magistrate favored applying the stronger protections of the Fourth Amendment until such time. Id. at 971. As noted earlier, Wilkins viewed the practical considerations very differently. According to Wilkins, the fact that even minimal force against a person once he is in custody could be called unreasonable renders the Fourth Amendment reasonableness standard too severe after this point. 872 F.2d at 193-94. The Court thus rejected the Gerstein analogy.
Graham made no mention of Gerstein, but its willingness to apply the Fourth Amendment standard to the officers' use of force after they had the plaintiff securely in custody, indeed its specific rejection of the notion that such a standard would turn every "push and shove" into a constitutional violation (109 S. Ct. at 1872), weakens Wilkins's criticism of the Jones approach. In light of this, Wilkins does not stand as an obstacle to employing Jones's line of demarcation between seizure and detention, and hence between Fourth Amendment and Fourteenth Amendment scrutiny. Cf. LeVick v. Skaggs Companies, Inc., 701 F.2d 777, 778 (9th Cir. 1983). Unless the Seventh Circuit rules otherwise, this court will adhere to that ruling. Since the plaintiff in this case had not yet appeared before a judicial officer when he suffered the alleged beatings, the Fourth Amendment continues to govern his claims against all of the defendants. The defendants' motion to reconsider therefore must be denied.
The defendants' motion to reconsider is denied.
DATE: July 26, 1989