Albright v. Oliver, 975 F.2d 343 (7th Cir. 1992). · Go Syfert
Albright v. Oliver, 975 F.2d 343 (7th Cir. 1992). Cases Citing This Book View Copy Cite
157 citation events (46 in the last 25 years) across 28 distinct courts.
Treatment trajectory · 1992 → 2026 · click a year to view as-of
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Under fire: who is questioning this case
Citations from separate opinions of courts that could overrule this case, and citations using reconsideration language. This is a warning signal, not a treatment change. The flag color above is unaffected.
Reconsideration language Thomas Moran v. Anne-Marie Clarke, 296 F.3d 638 (8th Cir. 2002)
“The detective made no effort to corroborate the unsubstantiated accusation of the informant, despite the informant's initial misidentification having cast grave doubt on the accuracy of her information, and despite the fact that of fifty individuals she had accused of trafficking drugs, none had been successfully prosecuted. Id. at 345 .”
Reconsideration language Moran v. Clarke, 296 F.3d 638 (3d Cir. 2002)
“The detective made no effort to corroborate the unsubstantiated accusation of the informant, despite the informant's initial misidentification having cast grave doubt on the accuracy of her information, and despite the fact that of fifty individuals she had accused of trafficking drugs, none had been successfully prosecuted. Id. at 345 .”
Dissent Torres v. McLaughlin, 163 F.3d 169 (3d Cir. 1998)
“The Seventh Circuit Court of Appeals had ruled that prosecution without probable cause was a constitutional tort actionable under § 1983 only if accompanied by incarceration or loss of employment or other "palpable consequences,” Albright v. Oliver, 975 F.2d 343, 347 (7th Cir.1992), because absent such an injury "state tort remedies should be adequate and the heavy weaponry of constitutional…”
Concurrence Albright v. Oliver, 510 U.S. 266 (1994)
“And, as the Court of Appeals recognized, if the facts were as Albright alleged, then Oliver lacked cause to suspect, let alone apprehend him. 975 F. 2d 343 ,345 (CA7 1992); see post, at 292-293 (Stevens, J., dissenting).”
Concurrence John Doe, Individually & on Behalf of His Minor Two Child. v. State of Louisiana, Paula Bennett & Sheryl George, 2 F.3d 1412 (5th Cir. 1993)
“As Judge Posner explained in Mahoney v. Kesery, 976 F.2d 1054, 1060 (7th Cir.1992), “[i]f defamation is not actionable [as a constitutional tort, see Paul v. Davis, 424 U.S. 693 [ 96 S.Ct. 1155 , 47 L.Ed.2d 405 ] (1976) ], it is difficult to believe that malicious prosecution is.” See also Albright v. Oliver, 975 F.2d 343, 345-346 (7th Cir.1992), cert. granted, — U.S. -, 113 S.Ct. 1382 , 122…”
Cited for
At page 345 Scrutinizing grounds for arrest and malicious prosecution claims18 citing casesAn arrest is a serious business. To arrest a person on the scanty grounds that are alleged to be all that Oliver had to go on is shocking.2 citing courts put it this way · 16 listed here
Show 6 more citing cases
  • Calero-Colon v. Betancourt-Lebron, 68 F.3d 1 (1st Cir. 1995).published 2 cites
    Perez-Ruiz v. Crespo-Guillen, 25 F.3d 40, 42 (1st Cir.1994) 2 See Albright v. Oliver, 975 F.2d 343, 345 (7th Cir.1992), aff'd on other grounds, --- U.S. ----, 114 S.Ct. 807 , 127 L.Ed.2d 114 (1994); Johnson v. Johnson County Comm'n.
  • Charles & Marion Hefti v. Ted A. Knapp, Revenue Agent, Individually, 46 F.3d 1133 (7th Cir. 1995).unpublished
    See, e.g., Robbins v. Bentsen, slip op., Nos. 94-1743, 94-1744 (7th Cir. Dec. 8, 1994); Hessel v. O'Hearn, 977 F.2d 299, 304-05 (7th Cir.1992); Albright v. Oliver, 975 F.2d 343, 345 (7th Cir.1992).
  • Albright v. Oliver, 510 U.S. 266 (1994).published 12 cites
    The Court of Appeals held that prosecution without probable cause is a constitutional tort actionable under § 1983 only if accompanied by incarceration or loss of employment or some other "palpable *270 consequenc[e]." 975 F. 2d, at 346-34…
  • John Doe, Individually & on Behalf of His Minor Two Child. v. State of Louisiana, Paula Bennett & Sheryl George, 2 F.3d 1412 (5th Cir. 1993).published 4 cites
    “[i]f defamation is not actionable [as a constitutional tort, see Paul v. Davis, 424 U.S. 693 [ 96 S.Ct. 1155 , 47 L.Ed.2d 405 ] (1976) ], it is difficult to believe that malicious prosecution is”
  • Jones v. Vill. of Villa Park, 815 F. Supp. 249 (N.D. Ill. 1993).published
  • Robinson v. Norling, No. 0:19-cv-02892 (D. Minn. Sept. 30, 2020).
At page 346 Analyzing scope of false imprisonment and constitutional torts14 citing cases“palpable consequences?”1 citing court quotes it · 13 listed here
  • Torres v. McLaughlin, 966 F. Supp. 1353 (E.D. Pa. 1997).published 5 cites
    See id. at 345 (“An arrest is a serious business.
  • Christopher Bates v. Thomas Hadden, 576 F. App'x 636 (8th Cir. 2014).unpublished 2 cites
    Id. (“[Wjhile we affirm the judgment below, we do so on different grounds.”).
  • Brown v. Dart, 876 F.3d 939 (7th Cir. 2017).published 2 cites
    Albright v. Oliver, 975 F.2d 343, 346 (7th Cir. 1992).
  • Britton v. Maloney, 981 F. Supp. 25 (D. Mass. 1997).published
    “palpable consequences?”
  • Zisis v. St. Joseph Tp. of Allen Cnty., 979 F. Supp. 806 (N.D. Ind. 1997).published
    Albright v. Oliver, 975 F.2d 343, 346 (7th Cir.1992).
  • Gallo v. City of Philadelphia, 975 F. Supp. 723 (E.D. Pa. 1997).published
    Finally, we explained that the courts that have addressed the issue have observed that, while “every person who is the victim of an unlawful prosecution must spend time, money and emotional resources preparing a defense” and that “[cjlearl…
  • Marshall C. Spiegel v. Daniel M. Rabinovitz, 121 F.3d 251 (7th Cir. 1997).published
    Albright v. Oliver, 975 F.2d 343, 346 (7th Cir.1992).
  • Hanna v. Marshall Field & Co., 665 N.E.2d 343 (Ill. App. Ct. 1st Dist. 1996).published
    “If you close a person in the room but the person has a key (and knows it), you have not committed false imprisonment”
  • Lanigan v. Vill. of East Hazel Crest, 913 F. Supp. 1202 (N.D. Ill. 1996).published
    “But constitutional torts do not follow the exact contours of their common law counterparts”
  • Albright v. Oliver, 510 U.S. 266 (1994).published 12 cites
    “palpable *270 consequenc[e]”
Show 3 more citing cases
At page 348 Distinguishing individual targeting from governmental incompetence13 citing casesyou must be singled out because of your membership in the class, and not just be the random victim of governmental incompetence1 citing court put it this way
  • L. Russell Alberts v. Bd. of Regents, No. 95-1600 (8th Cir. Mar. 26, 1996).published
    (you must be singled out because of your membership in the class, and not just be the random victim of governmental incompetence)
  • Daniels Ex Rel. Daniels v. Lutz, 407 F. Supp. 2d 1038 (E.D. Ark. 2005).published
    Albright v. Oliver, 975 F.2d 343, 348 (7th Cir.1992) (Posner, J.), aff'd, 510 U.S. 266 , 114 S.Ct. 807 , 127 L.Ed.2d 114 (1994) (to state equal protection claim, although plaintiff can be a member of a class with only one member, he must b…
  • Pleva v. Norquist, 36 F. Supp. 2d 839 (E.D. Wis. 1999).published
    Power Co., 211 Wis.2d 458, 484-85 , 565 N.W.2d 521, 534-35 (Wis.1997) (distinguishing Esmail for the same reason and affirming dismissal of equal protection claim); Albright v. Oliver, 975 F.2d 343, 348 (7th Cir.1992), aff'd, 510 U.S. 266…
  • Jamie S. Nabozny v. Mary Podlesny, William Davis, Thomas Blauert, 92 F.3d 446 (7th Cir. 1996).published
    Albright v. Oliver, 975 F.2d 343, 348 (7th Cir.1992), aff'd, 510 U.S. 266 , 114 S.Ct. 807 , 127 L.Ed.2d 114 (1994); Falls v. Town of Dyer, 875 F.2d 146, 148 (7th Cir.1989).
  • Heller v. Hodgin, 928 F. Supp. 789 (S.D. Ind. 1996).published
    Cf. Albright v. Oliver, 975 F.2d 343, 348 (7th Cir.1992) (Posner, J.), aff'd, 510 U.S. 266 , 114 S.Ct. 807 , 127 L.Ed.2d 114 (1994) (to state equal protection claim, although plaintiff can be a member of a class with only one member, he mu…
  • Rivkin v. Dover Twp. Rent Leveling Bd., 671 A.2d 567 (N.J. 1996).published
    “the state’s act of singling out an individual for differential treatment does not itself create the class [as that] would make ... every arbitrary act of govemment[ ] a violation of the Constitution”
  • Basim Esmail, Zabco Enter., Inc., & Nazco Enter., Inc. v. Samuel T. MacRane Jr., 53 F.3d 176 (7th Cir. 1995).published
    We noted the difference in the burdens of proof in Albright v. Oliver, supra, 975 F.2d at 348.
  • Lucien v. Peters, 840 F. Supp. 591 (N.D. Ill. 1994).published
    But that is the message that our Court of Appeals has delivered in unambiguous terms (Albright v. Oliver, 975 F.2d 343, 348 (7th Cir.1992)).
  • Lucas v. Vill. of La Grange, 831 F. Supp. 1407 (N.D. Ill. 1993).published
    And most recently Albright v. Oliver, 975 F.2d 343, 348 (7th Cir.1992) has disavowed the “singling out” approach entirely: 20 [Plaintiff] does not claim to have been singled out for prosecution because he was black or a member of some othe…
  • Bernard L. Herro v. City of Milwaukee, Thomas C. Nardelli, Paul A. Henningsen, Donald F. Richards, & Annette Scherbert, 44 F.3d 550 (7th Cir. 1995).published
Show 3 more citing cases
At page 344 Accepting factual allegations in complaint on appeal11 citing cases§ 1983 a constitutional tort statute1 citing court put it this way
  • Oliva v. City of Chicago, No. 1:21-cv-06001 (N.D. Ill. Mar. 24, 2023).
    Because Plaintiff’s travel restriction was neither a due process nor Fourth Amendment violation, see Albright, 975 F.2d at 344, 347-48 and Bielanski, 550 F.3d at 642 , the Court doubts that Plaintiff would ever be able to state a plausible…
  • Scott v. Bender, 948 F. Supp. 2d 859 (N.D. Ill. 2013).published
    The Seventh Circuit’s decision in Albright v. Oliver, 975 F.2d 343, 344-45 (7th Cir.1992), is almost perfectly on point with the instant case.
  • Panfil v. City of Chicago, 45 F. App'x 528 (7th Cir. 2002).unpublished
    On appeal from the dismissal of a complaint, we accept all of the well-pleaded factual allegations in the complaint, id., “without, of course, vouching for them truth.” Albright v. Oliver, 975 F.2d 343, 344 (7th Cir.1992), aff'd, 510 U.S.…
  • Moran v. Clarke, 296 F.3d 638 (3d Cir. 2002).published
    Albright v. Oliver, 975 F.2d 343, 344-45 (7th Cir.1992).
  • Thomas Moran v. Anne-Marie Clarke, 296 F.3d 638 (8th Cir. 2002).published 2 cites
    Albright v. Oliver, 975 F.2d 343, 344-45 (7th Cir.1992).
  • Knepp v. Lane, 848 F. Supp. 1217 (E.D. Pa. 1994).published
    Albright v. Oliver, 975 F.2d 343, 344, 348 (7th Cir.1992), aff'd, — U.S. -, 114 S.Ct. 807 , 127 L.Ed.2d 114 (1993).
  • Ernest Daniels v. Jerry Southfort, 6 F.3d 482 (7th Cir. 1993).published
    “we take the facts to be as alleged in the [amended] complaint, without of course vouching for their truth”
  • Ill v. Roland, 812 F. Supp. 855 (N.D. Ill. 1993).published
    (§ 1983 a constitutional tort statute)
  • Thomas Mahoney v. Russell Kesery, 976 F.2d 1054 (7th Cir. 1992).published
  • Jones v. Vill. of Villa Park, 815 F. Supp. 249 (N.D. Ill. 1993).published
Show 1 more citing case
At page 347 Constitutional tort action requiring palpable consequences14 citing casesholding that malicious prosecution, like defamation, does not amount to a constitutional tort, unless the plaintiff is deprived of his right to liberty by wrongful incarceration1 citing court put it this way · 11 listed here
  • Eddie Townsend v. Matthew B. Wilson, 652 F. App'x 449 (7th Cir. 2016).unpublished
    Albright v. Oliver, 975 F.2d 343, 347-48 (7th Cir. 1992), aff'd, 510 U.S. 266 , 114 S.Ct. 807 , 127 L.Ed.2d 114 (1994).
  • Torres v. McLaughlin, 163 F.3d 169 (3d Cir. 1998).published 2 cites
    “palpable consequences”
  • Laurinda Cole v. City of Milwaukee, Milwaukee Fire & Police Comm'n, Milwaukee Police Dep't, 67 F.3d 301 (7th Cir. 1995).unpublished
    Albright v. Oliver, 975 F.2d 343, 347 (7th Cir.1992), aff'd on other grounds, 114 S.Ct. 807 (1994).
  • Cruz v. Stasinopoulos, 843 F. Supp. 435 (N.D. Ill. 1994).published 2 cites
    Albright v. Oliver, 975 F.2d 343, 347 (7th Cir.1992), aff'd, — U.S. -, 114 S.Ct. 807 , — L.Ed.2d -(1994). (“The multiplication of remedies for identical wrongs, while gratifying for plaintiffs and their lawyers, is not always in the best i…
  • Albright v. Oliver, 510 U.S. 266 (1994).published 12 cites
    The Court of Appeals held that prosecution without probable cause is a constitutional tort actionable under § 1983 only if accompanied by incarceration or loss of employment or some other "palpable *270 consequenc[e]." 975 F. 2d, at 346-34…
  • Senra v. Cunningham, 9 F.3d 168 (1st Cir. 1993).published 2 cites
    (holding that malicious prosecution, like defamation, does not amount to a constitutional tort, unless the plaintiff is deprived of his right to liberty by wrongful incarceration)
  • Ellis ex rel. Ingram v. Bankhead, 828 F. Supp. 45 (N.D. Ill. 1993).published
    In their attempt to defeat that claim, defendants mistakenly seek to rely on Albright v. Oliver, 975 F.2d 343, 347 (7th Cir.1992) — a reliance that (quite apart from any possible significance that might be drawn from the Supreme Court’s ha…
  • Ronald S. Biddle v. Amy J. Martin & Paul Lehmann, 992 F.2d 673 (7th Cir. 1993).published
    Albright v. Oliver, 975 F.2d 343, 347 (7th Cir.1992).
  • Perez Ruiz v. Crespo Guillen, 25 F.3d 40 (1st Cir. 1994).published
  • Heriberto Ayala-Martinez v. Humberto Anglero, 982 F.2d 26 (1st Cir. 1992).published
Show 1 more citing case
q1 “scanty grounds ... is shocking,”2 citing cases2 citing courts quote it
  • Moran v. Clarke, 296 F.3d 638 (3d Cir. 2002).published
    Albright v. Oliver, 975 F.2d 343, 344-45 (7th Cir.1992).
  • Thomas Moran v. Anne-Marie Clarke, 296 F.3d 638 (8th Cir. 2002).published 2 cites
    Albright v. Oliver, 975 F.2d 343, 344-45 (7th Cir.1992).
Retrieving the full opinion text from the archive…
Kevin ALBRIGHT
v.
Roger OLIVER, individually and in his official capacity as a police detective with the City of Macomb, Illinois, and City of Macomb, Illinois, an Illinois Municipal Corporation
No. 91-3746.
Court of Appeals for the Seventh Circuit.
Sep 14, 1992.
Published opinion
975 F.2d 343
1992 WL 221987
John H. Bisbee (argued), Macomb, Ill., for plaintiff-appellant., James G. Sotos (argued), James G. Sotos, Schirott & Hervas, Itasca, Ill., for defendant-appellee.
Bauer, Gibson, Posner.
Cited by 61 opinions  |  Published
1 passage pin-cited by 1 case
Citer courts: Eighth Circuit (1)
POSNER, Circuit Judge.

The district judge granted the defendants’ motion to dismiss the complaint in this constitutional tort case (brought under 42 U.S.C. § 1983) for failure to state a claim, so we take the facts to be as alleged in the complaint, without of course vouching for their truth. The plaintiff is Kevin Albright. The defendants are Roger Oliver, an experienced police detective employed by the City of Macomb, Illinois, the home of Western Illinois University; and the City itself. In March 1987 Oliver hired a cocaine addict, Veda Moore, as an informant. She had come to him seeking protection from a drug dealer who was threatening her because she owed him money. Oliver insisted that she work for him as an undercover informant, in exchange for which he promised her his protection and some pay. Her job for Oliver was to buy cocaine and report the sellers to him. She used the money that he paid her for this information to buy cocaine for her own consumption.

In June she reported having bought cocaine from John Albright, Jr. at a hotel room in Macomb. She turned over the “cocaine” to Oliver; it turned out to be baking soda. Without further investigation, Oliver testified about the transaction before a state grand jury, which returned an indictment against John Albright, Jr. for sale of a “look alike” (alike to an illegal drug, that is) substance in violation of Ill. Rev.Stat. ch. 56V2, ¶ 1404(b). Oliver then went to John Albright, Jr.’s home to arrest him, but found that Albright was an elderly, respectable, inoffensive gentleman unlikely to have committed the offense of which Veda Moore had accused him. But in response to Oliver’s question did Al-bright have any sons Albright told him that maybe Oliver was looking for his son John David Albright. So Oliver altered the name on the arrest warrant to John David Albright and went to arrest him — only to discover that he had been in Chicago at the time of the alleged offense.

There was another son, Kevin Albright, a senior at Western Illinois University. Oliver called Moore and asked her whether the man from whom she had bought the baking soda might be Kevin Albright. She said it was he all right. A criminal information was issued charging Kevin Albright with the offense, followed (on October 16, 1987) by an arrest warrant. Learning of the warrant, Kevin Albright turned himself in, acknowledging to Oliver that he had been in Macomb on the date of the alleged offense but denying any involvement in drug trafficking. He was booked and required to post bond; one (mandatory) condition of bond was that he not leave the state without the court’s permission. Ill. Rev.Stat. ch. 38, ft 110-10(a)(3). At the preliminary hearing, held on January 5, 1988, Oliver testified about Veda Moore’s information without however revealing his initial efforts against the other two Albrights, and the judge found probable cause to make Kevin Albright stand trial. But on June 27, before the trial could be held, the circuit court dismissed the information against Kevin Albright on the ground that it failed to state an offense under Illinois law. (We do not know why not; we have not been able to find a copy of the decision.) The prosecution had received media coverage. And Albright had missed a job interview in St. Louis — he says because of the prohibition against his leaving the state, although he did not request the court’s permission to leave, as he could have done under the terms of the bond.

The present suit was brought one day short of two years after the dismissal of the prosecution. The complaint states a plausible claim for false arrest. It is true that Kevin Albright was not arrested in the[*345] conventional sense — he turned himself in. But it is enough that he was booked; that was a seizure of his person within the meaning of the Fourth Amendment. Voytko v. Ramada Inn of Atlantic City, 445 F.Supp. 315, 320, 324 (D.N.J.1978). And probably the “arrest” lacked probable cause. Detective Oliver made no effort to corroborate Veda Moore’s unsubstantiated accusation. A heap of baking soda was no corroboration. Her initial misidentification of the seller cast grave doubt on the accuracy of her information. And this was part of a pattern: of fifty persons she reported to Oliver as trafficking in drugs, none was successfully prosecuted for any crime. In the case of “Albright,” Oliver should have suspected that Moore had bought cocaine either from she knew not whom or from someone she was afraid to snitch on (remember that she had gone to work for Oliver in the first place because she was being threatened by a man to whom she owed money for previous purchases of cocaine), that she had consumed it and replaced it with baking soda, and that she had then picked a name from the phone book at random. The fact that she used her informant’s reward to buy cocaine makes this hypothesis all the more plausible. An arrest is a serious business. To arrest a person on the scanty grounds that are' alleged to be all that Oliver had to go on is shocking. The limits of reasonable police conduct, illustrated by our recent decision in Davis v. Owens, 973 F.2d 574 (7th Cir.1992), may well have been exceeded here — always assuming that the facts alleged in the complaint are true.

But Kevin Albright filed his suit more than two years after his arrest, so his constitutional claim of false arrest was barred by the statute of limitations. Wilson v. Garcia, 471 U.S. 261, 276, 105 S.Ct. 1938, 1947, 85 L.Ed.2d 254 (1985); Ill.Rev. Stat.1991, ch. 110, H 13-202. He has therefore had to base this suit on the events after the arrest, that is, on the prosecution itself, which ended on June 27, 1988, when the charges against him were dropped, and which he characterizes as malicious. He contends that malicious prosecution is, or at least in particular circumstances can be, a constitutional tort.

As noted in Brummett v. Cambie, 946 F.2d 1178, 1180 n. 2 (5th Cir.1991), this is a question on which there is an embarrassing diversity of judicial opinion. The Supreme Court has not opined on the question, but its decision in Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), holding that defamation by a public officer is not a constitutional tort, provides a clue to the answer that the Court is likely to give if it ever agrees to review a case that presents the question. The Court could have equated reputation to property and held that a tortious injury to reputation is analytically the same as a conversion of property, which is actionable in a civil rights suit if done intentionally by a state officer. Kimbrough v. O'Neil, 545 F.2d 1059 (7th Cir.1976) (en banc); Augustine v. Doe, 740 F.2d 322, 327 (5th Cir.1984); Bayron v. Trudeau, 702 F.2d 43, 45 and n. 2 (2d Cir.1983). It declined to make this equation. It did not want to draw the whole body of public-officer state law into the federal courts in the name of civil rights. Malicious prosecution, whether civil or criminal, resembles defamation. It is a deliberate accusation of wrongdoing calculated to embarrass the defendant, disrupt his activities, and put him to the expense of defending himself. Since a malicious prosecution is by definition groundless, it does not impose punishment costs, not usually anyway. In the end the defendant is exonerated, though the end may come after punishment had been imposed or commenced, for example if the prosecution had been founded on forged documents not exposed till after the defendant had been convicted and imprisoned, as was alleged to be the case in King v. Goldsmith, 897 F.2d 885 (7th Cir.1990). The medley of harms that a malicious prosecution inflicts when, as in this case, the defendant is exonerated before any punishment is imposed — indeed before he is even put on trial — is similar to that inflicted by defamation, which by impairing a person’s reputation not only embarrasses and even outrages him but also undermines his ability to make favorable transactions, whether busi[*346]ness or personal, thereby subjecting him to costs pecuniary or nonpecuniary or both. It also puts him to the expense of bringing a suit for defamation to recover his good name. If the injuries that defamation imposes do not constitute a deprivation of liberty or property within the meaning of the due process clause, then neither do the injuries that malicious prosecution imposes.

But like defamation, malicious prosecution can be a component of a constitutional tort. Defamation accompanying a discharge from employment can make it impossible for a person to obtain equivalent employment elsewhere, thus depriving him of liberty of occupation, one of the liberties protected by the due process clause. Hampton v. Mow Sun Wong, 426 U.S. 88, 102, 96 S.Ct. 1895, 1905, 48 L.Ed.2d 495 (1976); Colaizzi v. Walker, 812 F.2d 304, 307 (7th Cir.1987); Lawson v. Sheriff of Tippecanoe County, 725 F.2d 1136 (7th Cir.1984). In this example the concept of liberty is used to make constitutional tort liability for defamation by public officers narrower than common law liability. The same analytical process is available to deal with the parallel ease of malicious prosecution. Malicious prosecution can result in a person’s being thrown into jail to await trial, and incarceration is of course no less a deprivation of liberty within the meaning of the due process clause than exclusion from an occupation. United States v. Salerno, 481 U.S. 739, 746, 107 S.Ct. 2095, 2101, 95 L.Ed.2d 697 (1987); Addington v. Texas, 441 U.S. 418, 425, 99 S.Ct. 1804, 1808-09, 60 L.Ed.2d 323 (1979); Villanova v. Abrams, 972 F.2d 792 (1992). But Kevin Albright, though a recipient of unfavorable media publicity, does not contend that he is either unemployable as a result of his prosecution or that he was put in jail or even forced to stand trial. And he does not argue that being required to appear for a probable cause hearing is the equivalent of incarceration.

He was, it is true, “confined” to Illinois; and if Denmark was a dungeon to Hamlet (as the latter claimed), we suppose Illinois could be a prison to Kevin Albright. The tort of false imprisonment does not require close confinement. Robinson & Co. v. Green, 148 Ala. 434, 43 So. 797 (1906); Restatement (Second) of Torts § 36, comment b (1965). The “prison” could indeed be as large as an entire state. Id., § 36, illustration 7. But constitutional torts do not follow the exact contours of their common law counterparts. The element of confinement was further attenuated here by the fact that Albright could leave Illinois if he obtained leave of court. As he did not feel sufficiently restive, notwithstanding the possibility of a job interview across the state line in St. Louis, to request that leave, we do not think he was “confined” to the point of being deprived of constitutional liberty. If you close a person in the room but the person has a key (and knows it), you have not committed false imprisonment. Lopez v. Winchell’s Donut House, 126 Ill.App.3d 46, 81 Ill.Dec. 507, 466 N.E.2d 1309 (1984); Restatement, supra, § 36(2), and comment a and illustration 1. A fortiori you have not deprived him of his constitutional liberty. The analogy is not exact, but suppose you told a person that you had locked the door but would open it as soon as he wanted to leave, provided he asked for it politely— and he never asked, or made any motion to leave. Would that be false imprisonment? Who knows? But it would not be a sufficient deprivation of liberty to actuate constitutional remedies. Quite apart from Paul v. Davis, the courts have declined to equate every infringement of an interest protected at common law to a deprivation of a constitutionally protected liberty. Hudson v. McMillian, — U.S. -, 112 S.Ct. 995, 1000, 117 L.Ed.2d 156 (1992); Cameron v. Internal Revenue Service, 773 F.2d 126, 129 (7th Cir.1985); Davis v. Forrest, 768 F.2d 257, 258 (8th Cir.1985); Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.1973) (Friendly, J.).

In cases such as these the concept of constitutional “liberty” is used as a gatekeeper to limit access to the federal courts by persons complaining of the pettier sort of official outrage. Liberty so conceived has a qualitative as well as a quantitative dimension. The State of Illinois could not impose a criminal sentence on Albright without according him due pro[*347]cess of law, even if the sentence were merely that he remain in Illinois for a time unless he got a judge’s permission to leave. But a similarly modest infringement of liberty is not actionable when, being merely a by-product of some less ominous form of public coercion than the imposition of criminal punishment, it is farther from the core of constitutionally protected liberty. We do not place malicious prosecution in the class of trifling infringements of the right to be free from oppression by public officers; but in the absence of incarceration or other palpable consequences we do not think it should be actionable as a constitutional wrong. In a case such as this, where the prosecution collapses before trial, just as in the garden-variety public-officer defamation case that does not result in exclusion from an occupation, state tort remedies should be adequate and the heavy weaponry of constitutional litigation can be left at rest. The multiplication of remedies for identical wrongs, while gratifying for plaintiffs and their lawyers, is not always in the best interest of the legal system or the nation.

Albright’s energetic and tenacious counsel seeks to escape the conclusion that malicious prosecution is not actionable as a constitutional tort by pointing out that the Supreme Court has recognized a constitutional right to travel of which, he argues, the conditions in the bond deprived his client. E.g., Kent v. Dulles, 357 U.S. 116, 125, 78 S.Ct. 1113, 1117-18, 2 L.Ed.2d 1204 (1958); Memorial Hospital v. Maricopa County, 415 U.S. 250, 254, 94 S.Ct. 1076, 1080, 39 L.Ed.2d 306 (1974). He does not, of course, suggest that courts which impose travel restrictions on persons awaiting trial for criminal offenses, or which jail them pending trial because they can’t make bail or are regarded as a flight risk or a menace to the community, are engaged in wholesale violations of the right. United States v. Lockett, 526 F.2d 1110, 1112 (7th Cir.1975). As a flight risk is the most eager of travelers, such a proposition would be extravagant even by the elastic standards of constitutional argumentation. The argument rather is that detective Oliver caused Albright to lose his freedom of travel by setting the prosecution in motion without (whatever the judge at the preliminary hearing said — he wasn’t given a full picture) probable cause to believe that Al-bright had actually committed a drug offense.

If Oliver had been trying to confine Albright to Illinois, Albright might have an argument based on cases such as Kent v. Dulles that involve the denial of passports to Americans wanting to travel abroad. It would not be a strong argument. Not because Regan v. Wald, 468 U.S. 222, 240-42, 104 S.Ct. 3026, 3036-3038, 82 L.Ed.2d 171 (1984), confines the passport cases to First Amendment situations, where a passport is denied to persons on the basis of their beliefs; for Regan still requires that some justification be shown for limiting the right to travel, conceived of as a right conferred by the due process clause, even if the First Amendment is not involved. There was no justification here, if the prosecution was malicious. But we do not understand Al-bright to be arguing that Oliver intended to curtail his right to travel, though this was a foreseeable incident of the prosecution. More important, it is not clear that the right was materially curtailed, given the terms of the bond.

We said earlier that the due process phase of the case would be different if Albright had been incarcerated, and he would have been had he not posted bond— so should the cost of the bond ($350 — 10 percent of the face amount of the bond) be considered a substitute deprivation? If jail deprives a defendant of liberty, shouldn’t money in lieu of jail deprive him of property? Well, but bond money is refundable if the defendant does not violate the terms of the bond. Had Albright posted the full bond ($3,500) he would have gotten it back, but instead he chose to pay a nonrefundable fee of $350 in lieu of bond. Such a fee should be treated no differently from attorney’s fees. It was an incidental expense of a lawsuit that terminated in his favor. Obviously the expense of the fees that the plaintiff in a defamation case incurs is not a deprivation of property that enables him to bring suit against the public officer who defamed him. That would undo Paul v. Davis. No more should it be the shoehorn that squeezes malicious prosecution into[*348] the due process clause. Easter House v. Felder, 910 F.2d 1387, 1407 (7th Cir.1990) (en banc).

Albright next argues that the prosecution denied him the equal protection of the laws. He does not claim to have been singled out for prosecution because he was black or a member of some other minority, but he points out that a class with only one member can still complain of discrimination against his tiny class. United States v. Falk, 479 F.2d 616, 619 (7th Cir.1973) (en banc); Falls v. Town of Dyer, 875 F.2d 146 (7th Cir.1989). Indeed, one might suppose that the smaller the class, the less able it would be to protect itself in the political arena, and therefore the greater the danger that it might be singled out for oppression. But you must be singled out because of your membership in the class, and not just be the random victim of governmental incompetence. To close the question left open in Wroblewski v. City of Washburn, 965 F.2d 452, 459 (7th Cir.1992), we hold that “the state’s act of singling out an individual for differential treatment” does not “itself create the class.” That would make every selective prosecution, and indeed every arbitrary act of government, a violation of the Constitution.

Even if, as Albright suggests, the class of innocent persons could be regarded as a protected group for purposes of the equal protection clause (an implausible suggestion, for while we are not a law-abiding society, the innocent are not yet an oppressed minority among us), no one supposes that Oliver went after Albright because Albright was innocent. At worst, Oliver failed to discriminate carefully between the probably guilty and the probably innocent. It is not suggested that he has a perverse desire to punish the innocent and leave the guilty alone. Or that he has it in for anyone named Albright.

There are some other issues and arguments but they need not be discussed. The case was properly, dismissed.

Affirmed.