Cite as: 510 U. S. 266 (1994)
Ginsburg, J., concurring
A defendant incarcerated until trial no doubt suffers greater burdens. That difference, however, should not lead to the conclusion that a defendant released pretrial is not still "seized" in the constitutionally relevant sense. Such a defendant is scarcely at liberty; he remains apprehended, arrested in his movements, indeed "seized" for trial, so long as he is bound to appear in court and answer the state's charges. He is equally bound to appear, and is hence "seized" for trial, when the state employs the less strong-arm means of a summons in lieu of arrest to secure his presence in court.4
This conception of a seizure and its course recognizes that the vitality of the Fourth Amendment depends upon its constant observance by police officers. For Oliver, the Fourth Amendment governed both the manner of, and the cause for, arresting Albright. If Oliver gave misleading testimony at the preliminary hearing, that testimony served to maintain and reinforce the unlawful haling of Albright into court, and so perpetuated the Fourth Amendment violation.5
4 On the summons-and-complaint alternative to custodial arrest, see 2 W. LaFave, Search and Seizure 432-436 (2d ed. 1987).
5 Albright's reliance on a "malicious prosecution" theory, rather than a Fourth Amendment theory, is anomalous. The principal player in carrying out a prosecution—in "the formal commencement of a criminal proceeding," see post, at 295 (Stevens, J., dissenting)—is not police officer but prosecutor. Prosecutors, however, have absolute immunity for their conduct. See Burns v. Reed, 500 U. S. 478, 487-492 (1991). Under Albright's substantive due process theory, the star player is exonerated, but the supporting actor is not.
In fact, Albright's theory might succeed in exonerating the supporting actor as well. By focusing on the police officer's role in initiating and pursuing a criminal prosecution, rather than his role in effectuating and maintaining a seizure, Albright's theory raises serious questions about whether the police officer would be entitled to share the prosecutor's absolute immunity. See post, at 308-309, n. 26 (Stevens, J., dissenting) (noting that the issue is open); cf. Briscoe v. LaHue, 460 U. S. 325, 326 (1983) (holding that § 1983 does not "authoriz[e] a convicted person to assert a claim for damages against a police officer for giving perjured testimony at
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