Cite as: 510 U. S. 266 (1994)
Ginsburg, J., concurring
to suspect, let alone apprehend him. 975 F. 2d 343, 345 (CA7 1992); see post, at 292-293 (Stevens, J., dissenting).
Yet in his presentations before this Court, Albright deliberately subordinated invocation of the Fourth Amendment and pressed, instead, a substantive due process right to be free from prosecution without probable cause.1 This strategic decision appears to have been predicated on two doubtful assumptions, the first relating to the compass of the Fourth Amendment, the second, to the time frame for commencing this civil action.
Albright may have feared that courts would narrowly define the Fourth Amendment's key term "seizure" so as to deny full scope to his claim. In particular, he might have anticipated a holding that the "seizure" of his person ended when he was released from custody on bond, and a corresponding conclusion that Oliver's allegedly misleading testimony at the preliminary hearing escaped Fourth Amendment interdiction.2
The Fourth Amendment's instruction to police officers seems to me more purposive and embracing. This Court has noted that the common law may aid contemporary inquiry into the meaning of the Amendment's term "seizure." See California v. Hodari D., 499 U. S. 621, 626, n. 2 (1991). At common law, an arrested person's seizure was deemed to
1 Albright's presentations essentially carve up the officer's conduct, though all part of a single scheme, so that the actions complained of match common-law tort categories: first, false arrest (Fourth Amendment's domain); next, malicious prosecution (Fifth Amendment territory). In my view, the constitutional tort 42 U. S. C. § 1983 authorizes stands on its own, influenced by the substance, but not tied to the formal categories and procedures, of the common law. According the Fourth Amendment full sway, I would not force Albright's case into a different mold.
2 Such a concern might have stemmed from Seventh Circuit precedent set before Graham v. Connor, 490 U. S. 386 (1989). See Wilkins v. May, 872 F. 2d 190, 192-195 (1989) (substantive due process "shock the conscience" standard, not Fourth Amendment, applies to brutal "post-arrest pre-charge" interrogation).
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