Connie Reguli v. Lori Russ

                                RECOMMENDED FOR PUBLICATION
                                Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                       File Name: 24a0160p.06

                    UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT



                                                             ┐
 CONNIE REGULI,
                                                             │
                                   Plaintiff-Appellant,      │
                                                              >        No. 23-5925
                                                             │
        v.                                                   │
                                                             │
 LORI RUSS; BRENTWOOD POLICE DEPARTMENT; CITY                │
 OF BRENTWOOD, TENNESSEE,                                    │
                           Defendants-Appellees.             │
                                                             ┘

 Appeal from the United States District Court for the Middle District of Tennessee at Nashville.
                  No. 3:22-cv-00896—Aleta Arthur Trauger, District Judge.

                                Decided and Filed: July 31, 2024

                  Before: GIBBONS, WHITE, and MURPHY, Circuit Judges.
                                  _________________

                                            COUNSEL

ON BRIEF: Connie Reguli, Brentwood, Tennessee, in pro. per.                    Cassandra M. Crane,
FARRAR ǀ BATES ǀ BEREXA, Brentwood, Tennessee, for Appellees.

       The court delivered a PER CURIAM opinion. WHITE, J. (pg. 14), delivered a separate
concurring opinion. MURPHY, J. (pp. 15–18), also delivered a separate concurring opinion in
which GIBBONS, J., joined.

                                      _________________

                                             OPINION
                                      _________________

       PER CURIAM. In January 2019, Detective Lori Russ searched Connie Reguli’s private
Facebook records allegedly because Russ disliked Reguli’s criticism of the police. Reguli
learned of this search a year later when preparing for her criminal trial. She did not sue over the
 No. 23-5925                             Reguli v. Russ, et al.                            Page 2


search at that time. Much later, however, Reguli learned that her speech had motivated the
search when Russ seemed to admit as much at Reguli’s sentencing in July 2022.
That November, Reguli filed a First Amendment retaliation claim against Russ and her employer
under 

.      But Reguli’s § 1983 claim triggered a short one-year statute of
limitations under Tennessee law. So the district court dismissed Reguli’s claim as untimely.
The court reasoned that this claim had accrued when Reguli learned of Russ’s search—not when
she learned of Russ’s motivation for it. We agree and affirm.

                                                  I

       Connie Reguli has practiced law in Tennessee for years. She started out as a local
prosecutor in a district attorney’s office with a focus on domestic-violence and child-abuse cases.
After switching to a private civil-rights practice, she regularly represented “families” in
proceedings to remove children from their homes initiated by the Tennessee Department of
Children’s Services (which goes by “DCS”). Compl., R.1, PageID 2. In this role, Reguli
acquired a “distrust of government agents,” especially DCS employees. Id. She conveyed her
“disdain” for the government on her public Facebook page, which developed a following of
some 17,000 people. Id. But she eventually grew suspicious that government agents were
monitoring her page, so she set it to “private.” Id.

       In August 2018, DCS employees believed that Reguli’s zealous advocacy had crossed the
line into criminal misconduct. The evidence from Reguli’s criminal trial recorded the events of
that month. See State v. Reguli, 

, at *1 (Tenn. Crim. App. Mar. 4, 2024). In
early August, DCS began to investigate Wendy Hancock over the care she was providing her two
children. 

 Reguli agreed to represent Hancock during the investigation. 

 Things escalated
quickly. On August 13, DCS filed an ex parte petition to take custody of Hancock’s children.

 A juvenile court granted this petition. See 

 But DCS could not find Hancock or her 12-
year-old daughter because they were staying at a hotel. See 

       Two days later, the Tennessee Bureau of Investigation issued a “missing and endangered
child alert” for Hancock’s daughter. See 

 While at the hotel, her daughter saw this alert on
her phone and showed it to her mother and Reguli. See 

 Because Reguli had visited the
 No. 23-5925                            Reguli v. Russ, et al.                          Page 3


county clerk’s office earlier that day, she also knew of the court order granting custody of
Hancock’s daughter to DCS. See 

 Despite this knowledge, Reguli let Hancock and her
daughter stay at her house in Brentwood, Tennessee. See 

 Hancock disabled her phone and
her daughter’s phone to avoid detection. See 

 Reguli gave Hancock a new phone to use. See

       But Hancock’s daughter had posted on social media shortly before Hancock disabled her
phone. See 

 After spotting this post, the police “pinged” the daughter’s phone and learned of
its location at Reguli’s house. See 

 They discovered Hancock and her daughter there. See 

       The next month, a DCS attorney referred Hancock and Reguli to the Brentwood Police
Department.    The attorney asked the police to look into whether the women had illegally
interfered with DCS’s custody of Hancock’s daughter. Russ, a detective with the Brentwood
police, oversaw the investigation.

       On December 4, Russ sought a warrant to search Reguli’s Facebook records. Russ
requested, among other things, Reguli’s “subscriber information,” her “chat logs or private
messages,” and the “images and videos” that she had uploaded. Aff., R.1-1, PageID 27. In her
affidavit seeking the warrant, Russ described Reguli’s conduct in August. Russ also noted that
Reguli had posted videos to her Facebook page describing the August events and admitting her
knowledge that DCS had taken custody of Hancock’s daughter. And Russ suggested that
Reguli’s other Facebook records, such as her private messages, might contain evidence of her
role in the alleged custodial-interference crime.

       A judge issued the search warrant later that day. In January 2019, Russ obtained over
20,000 pages of Reguli’s Facebook records dating from August to December 2018.

       The same month, Reguli first learned of the police investigation. She requested all
records related to the investigation from the Brentwood Police Department. In response, the
department refused to provide any information due to the pending investigation.

       In July 2019, a Tennessee grand jury indicted Hancock on a count of custodial
interference and Reguli on a count of facilitating Hancock’s offense and two counts of being an
 No. 23-5925                            Reguli v. Russ, et al.                             Page 4


accessory after the fact. See Reguli, 

, at *2. In January 2020, Reguli obtained
discovery from the prosecutor and learned for the first time that Russ had obtained a warrant
back in 2018 to search her Facebook records.

       The trial court held separate trials for Hancock and Reguli. The women’s respective
juries found them guilty as charged. When testifying at Reguli’s trial, Russ did not introduce or
otherwise use any of Reguli’s Facebook records.

       The trial court sentenced Reguli on June 24, 2022. Russ testified at Reguli’s sentencing.
The prosecution asked Russ why she had obtained the Facebook records.               Russ’s answer
suggested that Reguli’s speech had at least partially motivated this request:

       Because of the things that she would put out on Facebook[,] Facebook Live,
       YouTube. She was very blatantly mocking of the whole process. From the
       beginning up until even after she was convicted, she was very blasé. She mocked
       the police. She accused myself personally of being involved in some sort of
       scheme and essentially questioning my integrity as a police officer and my
       involvement in saying that this was . . . And it’s been a consistent theme the
       whole time about it’s a conspiracy against her, that we’re after her because she is
       a squeaky wheel. And I felt like it was relevant to her actions.

Russ Tr., R.1-1, PageID 37. On cross-examination, Reguli’s attorney also asked Russ why she
continued to monitor Reguli’s Facebook page even after the trial. (It is unclear whether Reguli’s
Facebook page was still set to private and how Russ accessed her posts.) Russ reiterated her
distaste for what she thought were Reguli’s unwarranted criticisms of her and her associates:

       Because Ms. Reguli has repeatedly besmirched the people that were involved in
       this case and myself included. She posted things to the Brentwood Police
       Department’s Facebook page about me. I wanted to know if she was talking
       about me personally, because it’s an attack on my integrity that she would imply
       or blatantly say that I was acting in some sort of conspiracy against her with all of
       these other people that are involved, when I didn’t know her. My job is to find
       facts and whether it is to exonerate someone or to prosecute someone. And it’s
       insulting. So I wanted to know what she was saying personally about me.

 PageID 38. Russ then admitted that “it was kind of personal[.]” 

 The trial court
ultimately sentenced Reguli to 30 days in jail and three years of probation. Reguli, 

, at *1.
 No. 23-5925                              Reguli v. Russ, et al.                               Page 5


        On appeal, the Tennessee Court of Criminal Appeals reversed Reguli’s conviction and
dismissed her criminal case. See 

 Tennessee’s custodial-interference law makes it unlawful
for a noncustodial parent of a child under 18 years old to “[d]etain the child . . . after the
expiration of the . . . parent[’s] . . . lawful period of visitation, with the intent to violate . . . a
court order regarding the custody or care of the child[.]” 

(a)(2)
(emphasis added). The court interpreted the italicized language as requiring prosecutors to prove
that a court had granted visitation rights to a parent and that the parent had detained the child
after these rights had expired. Reguli, 

, at *3. Although the court found
Hancock’s conduct “troubling,” she had not been meeting with her daughter pursuant to a
“visitation order” when she kept her at Reguli’s house in violation of the order granting custody
to DCS. See 

 at *3–4. The court thus held that Hancock had not violated this custodial-
interference law. See 

 So Reguli could not have facilitated that offense or been an accessory
after the fact. See 

        On November 7, 2022, Reguli brought this federal lawsuit against Russ, the City of
Brentwood, and its police department under 

. As relevant to this appeal,
Reguli’s complaint alleged that Russ had violated the First Amendment by obtaining a warrant to
search Reguli’s Facebook records in retaliation for Reguli’s critical commentary about Russ, the
police, and DCS.

        A magistrate judge suggested that Reguli did not timely file her suit. Reguli v. Russ,

, at *6–9 (M.D. Tenn. Aug. 22, 2023).                  The district court agreed and
dismissed Reguli’s complaint. Reguli v. Russ, 

, at *8–12 (M.D. Tenn. Sept.
19, 2023).

                                                   II

        Reguli appeals the dismissal of her First Amendment retaliation claim under § 1983. We
review the district court’s decision de novo, accepting the complaint’s well-pleaded factual
allegations as true. See Baltrusaitis v. UAW, 

 (6th Cir. 2023). Because a
defendant bears the burden of proving a statute-of-limitations defense, a plaintiff’s complaint
need not allege facts showing that a claim is timely. See Cataldo v. U.S. Steel Corp., 676 F.3d
 No. 23-5925                             Reguli v. Russ, et al.                             Page 6


542, 547 (6th Cir. 2012).       But plaintiffs can plead themselves out of court on statute-of-
limitations grounds if the complaint alleges facts showing that they did not sue in time. See id.;
see also Baltrusaitis, 

. The key factual allegations in Reguli’s complaint do just
that.

                                                 A

          Section 1983 gives plaintiffs a right to seek damages from any “person” who, while
acting “under color of” state law, “subjects” the plaintiffs “to the deprivation of any rights,
privileges, or immunities secured by the Constitution[.]” 

. This provision lacks
its own statute of limitations. Courts have filled in this gap with a mix of federal and state rules.
See 

(a); Dibrell v. City of Knoxville, 

, 1160–61 (6th Cir. 2021).

          At the outset, state law determines the length of § 1983’s statute of limitations. The
Supreme Court has held that the statute incorporates the limitations period for personal-injury
torts from the State where the events occurred. See Wallace v. Kato, 

, 387−88
(2007).

          Conversely, federal law determines when a § 1983 claim accrues to trigger the running of
this state statute of limitations. See id. at 388. The Supreme Court has explained that the
“standard” accrual “rule” starts a limitations period when “the plaintiff has ‘a complete and
present cause of action.’” Bay Area Laundry & Dry Cleaning Pension Tr. Fund v. Ferbar Corp.
of Cal., Inc., 

 (1997) (quoting Rawlings v. Ray, 

 (1941)); see
Rotkiske v. Klemm, 

 (2019).            Put differently, this “injury-occurrence” or
“occurrence” rule triggers the limitations period on the first day that every element of a claim has
occurred such that the plaintiff may sue in court over the claim. See Wallace, 

.
The Supreme Court has recited this rule in three § 1983 cases. See Reed v. Goertz, 

,
235–36 (2023); McDonough v. Smith, 

, 114–15 (2019); Wallace, 

.

          But our § 1983 cases have taken a different approach. We have suggested that the statute
adopts a “discovery rule,” not an “occurrence rule.” See Dibrell, 

; Sharpe v.
Cureton, 

 (6th Cir. 2003). This rule postpones the limitations period to the
date that the plaintiff discovered, or reasonably should have discovered, basic facts about the
 No. 23-5925                            Reguli v. Russ, et al.                             Page 7


claim. See Johnson v. Memphis Light Gas & Water Div., 

 (6th Cir. 2015);
Dixon v. Anderson, 

 (6th Cir. 1991); Sevier v. Turner, 

 (6th
Cir. 1984).

                                                B

       Applying this law, the parties agree on some things and disagree on others. They agree
that § 1983 incorporates a one-year statute of limitations from Tennessee. See 

(a)(1)(A)−(B); Dibrell, 

. They also agree—and so we may assume—
that the discovery rule applies given our caselaw. Nevertheless, the parties disagree over the
date that Reguli’s First Amendment retaliation claim accrued under this rule. Russ would start
the clock in January 2020 when Reguli discovered that Russ had searched her Facebook
accounts. Under this view, Reguli filed her suit (in November 2022) well outside the statute of
limitations. Reguli, by contrast, would start the clock in June 2022 when she learned at her
sentencing that her speech had motivated Russ to engage in this search. Under this view, she
timely sued.

       At bottom, this debate over the proper accrual date arises from the parties’ conflicting
answers to two questions: When did Reguli have a “complete and present” First Amendment
retaliation claim that could even trigger the discovery rule’s inquiry into her knowledge about the
claim’s existence? And what facts must Reguli have discovered about this claim to start the
limitations period under that discovery rule? Russ has better answers to both questions.

               1. When did Reguli have a “complete and present” retaliation claim?

       Whether a plaintiff has a “complete and present cause of action” under § 1983 turns on
the “specific constitutional right” at issue. Reed, 598 U.S. at 235–36. So we start by identifying
the elements of Reguli’s claim. The First Amendment (as incorporated by the Fourteenth)
prohibits state actors from “abridging the freedom of speech[.]”          U.S. Const. amend. I;
Stromberg v. California, 

 (1931). The Supreme Court has read this text to bar
state actors from taking “retaliatory actions” against a party because of the party’s “protected
speech.” Hous. Cmty. Coll. Sys. v. Wilson, 

 (2022) (quoting Nieves v. Bartlett,

, 398 (2019)). This sort of retaliation claim has three elements. See Lemaster v.
 No. 23-5925                            Reguli v. Russ, et al.                             Page 8


Lawrence County, 

, 307–10 (6th Cir. 2023). First, the plaintiff must have engaged
in speech that the First Amendment protects—such as criticism of the police. See Rudd v. City of
Norton Shores, 

, 513–14 (6th Cir. 2020). Second, the state actor must have taken
an “adverse” (that is, harmful) action against the plaintiff—such as “an arrest, a prosecution, or a
dismissal from governmental employment.” Hous. Cmty. Coll. Sys., 

; Lemaster,

. Third, a “causal connection” must exist between these elements—such that the
protected speech motivated (indeed, qualified as a but-for cause of) the adverse action. Rudd,
977 F.3d at 515.

       Under these elements, Reguli had a “complete and present cause of action” when Russ
obtained Reguli’s Facebook records in early 2019. Reed, 

 (quoting Bay Area
Laundry, 

). Had Reguli engaged in her “protected” speech by then? Rudd, 977
F.3d at 513. Yes, the complaint alleges that she regularly used Facebook to criticize the police,
including soon after the events of August 2018. Compl., R.1, PageID 2, 8. Had Russ engaged in
the “adverse action” by then? Rudd, 977 F.3d at 513. Yes, the complaint suggests that Russ
requested a search warrant for Reguli’s Facebook records in December 2018 and obtained them
in January 2019. Compl., R.1, PageID 10. Lastly, did a “causal connection” exist between
Reguli’s speech and Russ’s search? Rudd, 977 F.3d at 513. Yes, the complaint suggests that
Russ initiated the Facebook search “[b]ecause of the things that [Reguli] would put out on
Facebook.” Compl., R.1, PageID 13. And while evidence of Russ’s allegedly improper motive
came out later during Reguli’s sentencing, the motive itself necessarily existed at the time of the
search. After all, Russ’s subjective intent for taking a past act could not have changed after the
act. Unsurprisingly, then, the Supreme Court has recognized for a similar retaliation claim that
the plaintiff typically has a complete cause of action “when the retaliatory action occurs.”
Graham Cnty. Soil & Water Conservation Dist. v. United States ex rel. Wilson, 

 (2005).

       In response, Reguli suggests that First Amendment retaliation claims have a fourth
element. According to Reguli, plaintiffs must have “suffered” not just an adverse action in
retaliation for their speech but also a “chilling effect” on that speech before they have actionable
claims. Appellant’s Br. 42, 48. And here, Reguli says, she could not have suffered any “chill”
 No. 23-5925                              Reguli v. Russ, et al.                            Page 9


until she learned at sentencing of Russ’s unlawful motivation. She is mistaken. Nothing in the
First Amendment’s text nor in the caselaw interpreting it suggests this element. That is for good
reason.     The element would permit officials to punish speech under the First Amendment
whenever their harmful acts did not “chill” courageous speakers from speaking. Counterman v.
Colorado, 

 (2023). But the First Amendment protects the stout no less than the
timid.

          An action’s “chilling effect” instead plays only a winnowing role in deciding whether
plaintiffs have adequately alleged the second (adverse action) element of their claim.          An
official’s conduct qualifies as sufficiently “adverse”—and so actionable under the First
Amendment—only if it would “chill” (that is, deter) “a person of ordinary firmness” from
speaking. Hous. Cmty. Coll. Sys., 

 (quoting Nieves, 587 U.S. at 397); see Rudd,
977 F.3d at 514. For example, a plaintiff may not sue over a state official’s “mere frown”
because facial expressions alone would not deter expression. Hous. Cmty. Coll. Sys., 

. If we reached the merits of Reguli’s claim, then, we would have to ask whether Russ’s
alleged adverse action (her invasion of Reguli’s privacy through a search of her Facebook
records) would deter an “ordinary citizen” from engaging in protected expression. Rudd, 977
F.3d at 514. If it would, however, Reguli would not have to establish—as another element—that
this conduct subjectively chilled her speech.

          To support a contrary view, Reguli relies on Bloch v. Ribar, 

 (6th Cir. 1998),
and Barrett v. Harrington, 

 (6th Cir. 1997). But she misreads these two cases. In
both, an official’s speech qualified as the “adverse action” that the plaintiff sued over. The
plaintiff in Bloch—a rape victim—alleged that a sheriff revealed confidential details of the rape
in retaliation for her criticism of him. 

, 678–81. The plaintiff in Barrett—a
litigant—alleged that a state judge made false statements about him in retaliation for his criticism
of her. 130 F.3d at 249–51, 262–63. So the date of the harmful speech in these cases (the public
disclosures or defamatory statements) qualified as the date of the adverse actions. Reguli, by
contrast, nowhere claims that Russ gave her sentencing testimony in retaliation for Reguli’s
speech. Rather, Reguli claims that Russ searched her Facebook records in retaliation for that
 No. 23-5925                            Reguli v. Russ, et al.                            Page 10


speech. Here, then, Russ’s search—not her speech—is the adverse action. So the date of the
search (early 2019) dictates when Reguli had a complete and present case of action.

       We end with a disclaimer. The Supreme Court has held that if a § 1983 claim “would
necessarily imply the invalidity” of a criminal conviction, a plaintiff cannot bring the claim until
successfully overturning that conviction. Heck v. Humphrey, 

 (1994). Or, to
put this principle in statute-of-limitations language, the plaintiff does not have a “complete and
present cause of action” until that time. McDonough, 588 U.S. at 119 (quoting Wallace, 

). Here, however, Reguli does not assert that her First Amendment claim would have
implied the invalidity of her criminal conviction (before she successfully overturned it on other
grounds). Indeed, her complaint alleged that the Facebook evidence played no role in her
criminal trial. Compl., R.1, PageID 12. So our opinion should not be taken to impliedly resolve
any Heck issues.

             2. Did the discovery rule require Reguli to know of Russ’s motivation?

       Because Russ agrees that the discovery rule applies, she must show more than the mere
existence of a complete and present cause of action to trigger the limitations period. She must
also show that Reguli knew of this cause of action (or at least reasonably should have known of
it). Yet our cases have sent mixed messages on the specific facts that § 1983 plaintiffs must
know to start the limitations period under the discovery rule. In dozens of cases dating back
decades, we have said that the limitations period begins on the date that “the plaintiff knows or
has reason to know of the injury which is the basis of his action.” Sevier, 

(emphasis added); see, e.g., Endres v. Ne. Ohio Med. Univ., 

 (6th Cir. 2019);
Johnson, 

; Sharpe, 

; Dixon, 

; see also Rotella v.
Wood, 

 (2000). So, for example, we have held that a § 1983 plaintiff’s
excessive-force claim accrued on the day of the force because the plaintiff knew of the injury at
that point—even if he did not know the identity of the officer who had used the force and caused
this injury. See Miller v. Cocke County, 

, at *2 (6th Cir. Jan. 11, 2022); see
also Ruiz-Bueno v. Maxim Healthcare Servs., Inc., 

 (6th Cir. 2016);
Dowdy v. Prison Health Servs., 

, 434–35 (6th Cir. 2001) (order).
 No. 23-5925                            Reguli v. Russ, et al.                             Page 11


       In another § 1983 case, though, we suggested that the discovery rule starts the limitations
period when the plaintiff “knows, or in the exercise of due diligence should have known, both his
injury and the cause of that injury.” Bishop v. Child.’s Ctr. for Developmental Enrichment, 

 (6th Cir. 2010) (quoting Campbell v. Grand Trunk W. R.R., 

 (6th
Cir. 2001)) (emphasis added); see Snyder-Hill v. Ohio State Univ., 

, 701 (6th Cir.
2022). This precedent relies on United States v. Kubrick, 

 (1979). Kubrick
addressed when a medical-malpractice claim accrued under the Federal Tort Claims Act. 

. Although the Court recited the general rule that a claim accrues “at the time of the
plaintiff’s injury,” it suggested that the limitations period should not start in medical-malpractice
cases “until the plaintiff has discovered both his injury and its cause.” 

 at 119–20. So perhaps
Kubrick suggests that the discovery rule’s elements depend on the claim at issue. Cf. Miller,

, at *2.

       Regardless, we need not reconcile these views in this case. Under either approach to the
discovery rule, our cases leave no doubt that a statute of limitations can start to run even if a
§ 1983 plaintiff lacks knowledge of every element of the claim. Kubrick itself held as much.
The Supreme Court found the medical-malpractice claim untimely because the plaintiff knew of
both his injury (hearing loss) and its cause (an antibiotic that a hospital had provided). See id. at
122–24. The Court rejected the claim that the discovery rule should delay the limitations period
until the plaintiff also knew that the hospital had breached its duty of care. Id. at 123. In other
words, the plaintiff did not need to know of this negligence element to start the limitations
period. The Supreme Court’s decision in Rotella followed the same approach when finding a
civil claim under the Racketeer Influenced and Corrupt Organizations Act (RICO) untimely.
There, a patient argued that a psychiatric hospital had injured him in violation of RICO by
admitting him to maximize its profits rather than to provide needed care. Rotella, 528 U.S. at
551–52. RICO has a four-year statute of limitations, yet the plaintiff had discovered this injury
over a decade before he sued. Id. at 552. He nevertheless argued that RICO required him to
show that the hospital had engaged in a “pattern of racketeering activity” and that he reasonably
lacked knowledge of this “pattern” element until just a few years before the suit. Id. at 552–53.
So he claimed that he had sued in time. The Court disagreed. It reasoned that the clock starts on
 No. 23-5925                            Reguli v. Russ, et al.                            Page 12


the “discovery of the injury, not discovery of the other elements of a claim[.]” Id. at 555. The
plaintiff thus did not need to know of the pattern element to trigger RICO’s limitations period.

       This precedent dooms Reguli’s First Amendment retaliation claim. Whether she needed
to know about only her injury or about both her injury and its cause, she did not file her claim
within the one-year statute of limitations. Her complaint alleged that she discovered her injury—
the invasion of privacy from the Facebook search—“in about January 2020.” Compl., R.1,
PageID 11. And her complaint alleged that she learned of this injury’s cause—“Detective Lori
Russ”—at the same time. Id. This knowledge started the limitations period in January 2020,
whether or not Reguli knew of the “other elements of” her claim. Rotella, 

.

       In response, Reguli argues that she knew of neither her injury nor its cause until her
sentencing in June 2022. She first claims that she did not suffer her entire “injury”—including
the “chilling effect” on her speech—until Russ admitted at sentencing that she had conducted the
search because of Reguli’s criticism of the police. Even if Reguli could recover for the “mental
anguish” that she allegedly felt on hearing Russ’s testimony, this theory would do Reguli no
good. Bloch, 

 (citation omitted). Courts universally recognize that the discovery
rule begins once a plaintiff learns of an injury from the defendant’s conduct—even if the
plaintiff does not discover the “full extent of the injury” until later. Wallace, 

(citation omitted) (emphasis added); see, e.g., Stephens v. Clash, 

 (3d Cir.
2015); Varnell v. Dora Consol. Sch. Dist., 

 (10th Cir. 2014); Goodhand v.
United States, 

 (7th Cir. 1994). And Reguli learned of her primary injury well
before sentencing.

       Reguli’s “causation” theory fares no better. She argues that, until her sentencing, she
lacked knowledge that Russ had engaged in the search because of her protected speech. And she
says that the discovery rule required her to know of this causation element to trigger the
limitations period. Yet the cases incorporating a causation inquiry into the discovery rule have
indicated that plaintiffs must have known of “the defendant [that] caused their injury”—not the
defendant’s subjective reasons for doing so. Snyder-Hill, 48 F.4th at 704 (emphasis added).
And here, Reguli concedes that she had pinpointed Russ as the culprit in January 2020.
 No. 23-5925                            Reguli v. Russ, et al.                            Page 13


       An analogy confirms this conclusion. A defendant’s subjective motives for taking a
harmful act routinely matter in the law.       Plaintiffs, for example, often assert that public
employers took employment actions against them for forbidden reasons—say, racial
discrimination in violation of the Equal Protection Clause or political discrimination in violation
of the First Amendment. See Martinez-Rivera v. Puerto Rico, 

 (1st Cir.
2016); Lukovsky v. City & Cnty. of San Francisco, 

, 1048–51 (9th Cir.
2008); see also Chardon v. Fernandez, 

, 6–8 (1981) (per curiam). And “numerous”
courts have adopted a bright-line rule that these claims accrue when plaintiffs learn of the
“employment action” that injured them. Lukovsky, 

 (citing cases). Courts have
also kept to this rule even when plaintiffs allege that they did not learn of the “discriminatory
motive” until after the employment action. 

; cf. Amini v. Oberlin Coll., 

,
500–01 (6th Cir. 2001). Our logic follows the same path: we tie the discovery rule to the date
that Reguli learned of Russ’s adverse action—not the date she learned of Russ’s “motive” for
this action. Lukovsky, 

.

       Reguli lastly protests that she lacked the ability to sue before Russ testified at sentencing
because plaintiffs cannot pursue litigation in court based on “mere conjecture” about a
defendant’s subjective motives. Appellant’s Br. 51. Yet courts in the employment setting have
considered this predicament and suggested an answer: they might toll the statute of limitations if
a plaintiff could not have reasonably determined whether an unlawful motive existed before the
limitations period expired. See Lukovsky, 

 n.5; Amini, 259 F.3d at 500–01; see
also Wallace, 

. But we need not consider this possibility here. Although Reguli
raised a tolling argument in the district court, she did not renew the argument in this court. She
has thus forfeited (or perhaps even waived) any tolling claim. See Bannister v. Knox Cnty. Bd. of
Educ., 

, 1011–12 (6th Cir. 2022).

       We affirm.
 No. 23-5925                            Reguli v. Russ, et al.                            Page 14


                                      __________________

                                       CONCURRENCE
                                      __________________

       HELENE N. WHITE, Circuit Judge, concurring. I agree that Reguli’s claim accrued
under federal law when she had “a complete and present cause of action,” Maj. Op. at 6 (quoting
Bay Area Laundry & Dry Cleaning Pension Tr. Fund v. Ferbar Corp. of Cal., Inc., 

 (1997))—when Russ obtained her Facebook records. Under the discovery rule, which
the parties agree applies here, Russ must also “show that Reguli knew of this cause of action (or
at least reasonably should have known of it).” Id. at 10. Whether this is so is generally a fact-
intensive inquiry. Here, Reguli’s complaint establishes that she should have pursued a First
Amendment retaliation claim when she received the discovery packet in January 2020 and
perceived that the entire prosecution was unfounded and irregular. Because straightforward
application of the discovery rule makes this clear, I find much of the majority’s discussion
unnecessary. More specifically, I would not relegate the discovery of a retaliatory motive in
cases where retaliation is an element of the claim to the domain of equitable tolling in all cases.
This is especially so because equitable tolling, unlike accrual, is generally determined under state
law. See Wallace v. Kato, 

 (2007); Johnson v. Memphis Light Gas & Water
Div., 

 (6th Cir. 2015).
 No. 23-5925                             Reguli v. Russ, et al.                            Page 15


                                      __________________

                                        CONCURRENCE
                                      __________________

       MURPHY, Circuit Judge, concurring. We decide this case in the way that the parties
have presented it to us. See United States v. Sineneng-Smith, 

, 375–76 (2020). So
we assume that the “discovery rule”—which delays the usual start date of a statute of
limitations—applies to Connie Reguli’s First Amendment claim under 

. But
this assumption may well prove misplaced. As in another statute-of-limitations case that the
Supreme Court recently decided, the parties debate the mechanics of the discovery rule without
addressing “the logically antecedent question”: Should this rule apply at all? Warner Chappell
Music, Inc. v. Nealy, 

, 1140 (2024) (Gorsuch, J., dissenting). Although our court
has recited the discovery rule in many § 1983 cases, I have my doubts about our approach.
Frankly, the Supreme Court’s caselaw on this question and our caselaw on it seem to be speaking
different languages.

       1. Start with the Supreme Court’s approach. In recent cases, the Court has repeatedly
considered when different types of constitutional claims accrue to trigger § 1983’s statute of
limitations. See Reed v. Goertz, 

, 235–37 (2023); McDonough v. Smith, 

, 115–25 (2019); Wallace v. Kato, 

 (2007); see also Manuel v. City of
Joliet, 

, 369–72 (2017). Each time, the Court has followed the same general
framework.     It has first pinpointed the “specific constitutional right” on which the § 1983
plaintiff relied—whether the Fourteenth Amendment’s Due Process Clause or the Fourth
Amendment’s ban on unreasonable searches and seizures. Manuel, 

 (citation
omitted); see Reed, 

; McDonough, 

; Wallace, 

.

       The Court has next turned to the “common law of torts” to determine the “accrual” rules
for the identified constitutional claim. Manuel, 

. It has explained that the
common law “presumptively” adopted what the majority opinion calls the “occurrence” rule—
not any type of discovery rule. See McDonough, 

. That is, the common law
typically started the limitations period on the first day that plaintiffs had “a complete and present
 No. 23-5925                            Reguli v. Russ, et al.                           Page 16


cause of action[.]” 

 (quoting Wallace, 

). Plaintiffs have such a cause of action
when they can seek relief in court because a claim’s legal elements have all arisen (whether or
not they know of this fact). See Wallace, 

; see also Petrella v. Metro-Goldwyn-
Mayer, Inc., 

, 670 & n.4 (2014). Plenty of evidence supports this understanding of
the common law. Treatises, for example, routinely suggested that a “cause of action or suit
arises when and as soon as the party has a right to apply to the proper tribunals for relief.” J.K.
Angell, Treatise on the Limitations of Actions 34 (5th ed. 1869); see also 1 H.G. Wood,
Limitation of Actions § 122a, at 684–85 (4th ed. 1916); Arthur Underhill, Principles of the Law
of Torts 65–66 (1st Am. ed. 1881).

       To be clear, the Court has recognized only a presumption in favor of this occurrence rule.
It has applied the rule when nothing supported a departure from it. See Reed, 598 U.S. at 235–
36; McDonough, 588 U.S. at 116–20.          But sometimes a constitutional claim (such as an
unreasonable-seizure claim) might resemble a tort (such as a false-imprisonment claim) that
followed a “distinctive” accrual test at common law. Wallace, 

. In that scenario,
the Court might extend this distinctive test (not the occurrence rule) to the analogous
constitutional claim. See 

 at 389–90. And besides, the Court has added that the common law
provides only a “guide” that courts may adjust to best fit the relevant right. Manuel, 

.

       2. Now consider our approach. We first adopted a “discovery” rule for § 1983’s statute
of limitations in a 1984 case about the Fifth Amendment privilege against self-incrimination.
See Sevier v. Turner, 

 (6th Cir. 1984). Bereft of any reasoning that would
justify our choice of a discovery rule over an occurrence rule, Sevier devoted all of one sentence
to this topic: “The statute of limitations commences to run when the plaintiff knows or has
reason to know of the injury which is the basis of his action.” 

. Its support? Four out-
of-circuit decisions. See 

 Since then, we have cited Sevier’s lone sentence as our source to
expand the discovery rule—in seemingly automatic fashion—to many other constitutional claims
that plaintiffs have pursued under § 1983.      See, e.g., Rodriguez v. City of Cleveland, 

 (6th Cir. 2011) (Fourth Amendment); Eidson v. Tenn. Dep’t of Child.’s
Servs., 

 (6th Cir. 2007) (Due Process Clause); Cooey v. Strickland, 479 F.3d
 No. 23-5925                            Reguli v. Russ, et al.                            Page 17


412, 415–16 (6th Cir. 2007) (Eighth Amendment); Sharpe v. Cureton, 

, 265–66 (6th
Cir. 2003) (First Amendment); Kuhnle Bros. v. County of Geauga, 

 (6th Cir.
1997) (Takings Clause); Dixon v. Anderson, 

 (6th Cir. 1991) (Equal Protection
Clause).

       Consider a few ways that our current approach to this accrual question differs from the
Supreme Court’s. To begin with, the Supreme Court has told us to start with the “specific
constitutional right” at issue when determining the proper accrual test. See Reed, 

. But most of our cases start—and end—by adopting a discovery rule without considering
the relevant constitutional right. Indeed, many opinions do not even identify the right that the
§ 1983 plaintiff sought to vindicate in the suit. See Johnson v. Memphis Light Gas & Water Div.,

 (6th Cir. 2015); Bishop v. Child.’s Ctr. for Developmental Enrichment, 

, 536–37 (6th Cir. 2010); Roberson v. Tennessee, 

, 794–96 (6th Cir. 2005);
Hughes v. Vanderbilt Univ., 

, 548–50 (6th Cir. 2000).

       Next, the Supreme Court “presumptively” follows the occurrence rule in § 1983 cases
both because the Court looks to “common-law tort principles” to interpret § 1983 and because
States generally followed this rule to decide when the statute of limitations began for their torts.
McDonough, 

 (quoting Wallace, 

). We, by contrast, have
automatically (not presumptively) adhered to a discovery rule in our § 1983 cases. And none of
our cases has even examined “common-law tort principles,” let alone attempted to ground our
broad-brush discovery rule in those principles. Wallace, 

.

       In a case that did not involve § 1983, we did suggest that our discovery rule in the § 1983
context could be seen as adhering to “a common-law accrual principle[.]” Snyder-Hill v. Ohio
State Univ., 

, 700 (6th Cir. 2022). But we cited no support for this dictum. And
§ 1983 does not give us license to adopt the rules that we think best as a policy matter. Rather,
the Supreme Court has told us to interpret the statute in light of the “common-law principles that
were well settled at the time of its enactment.” Nieves v. Bartlett, 

 (2019)
(quoting Kalina v. Fletcher, 

 (1997)) (emphasis added). As far as I can tell, a
broad discovery rule conflicts with these traditional principles.      Even as late as 1939, the
Restatement of Torts noted that many States continued to adhere to the view that “the statutory
 No. 23-5925                           Reguli v. Russ, et al.                           Page 18


period runs from the time the tort was committed although the injured person had no knowledge
or reason to know of it.” Restatement (First) of Torts § 899 cmt. (e) (Am. L. Inst. 1939)
(emphasis added).

       At the same time, the Supreme Court’s instructions that we should follow “distinctive”
accrual rules when the common law would adopt them likely leaves some room for a discovery
rule. Wallace, 

. Most notably, the common law at the time of § 1983’s
enactment adopted a discovery rule that delayed the running of the statute of limitations when
the plaintiff asserted a fraud claim. See Gabelli v. SEC, 

 (2013); Holmberg v.
Armbrecht, 

 (1946); Bailey v. Glover, 

, 348–49 (1874); Sherwood
v. Sutton, 

, 1304–08 (C.C.D.N.H. 1828) (Story, J.). If a constitutional claim
under § 1983 resembles such a fraud claim, this “distinctive” discovery rule might apply.
Wallace, 

. Other unique rules might also exist. Even for non-fraud torts, for
example, some common-law sources suggested that a defendant’s fraudulent effort to hide the
tort could delay the start of the statute of limitations. See Hugh Fraser, Compendium of the Law
of Torts 130 (1888). Perhaps § 1983 would incorporate this fraudulent-concealment rule. That
said, the Supreme Court has at times described this rule as a tolling (not an accrual) doctrine.
See Klehr v. A.O. Smith Corp., 

 (1997). And the Court has suggested that
§ 1983 incorporates state-by-state tolling rules rather than a catch-all federal rule (as in the
accrual context). See Wallace, 

.

       I will not belabor the point further. I hope that what I have said suffices to show the
tension between our precedent and the Supreme Court’s. Eventually, the distinction between our
automatic use of the discovery rule and the Supreme Court’s presumptive use of the occurrence
rule will matter to the outcome of a § 1983 case. When it does, a panel must address whether our
prior decisions bind us to the discovery rule as a precedential matter despite the Supreme Court’s
caselaw. If a panel finds itself bound, perhaps the en banc court should take a fresh look at our
discovery rule. After all, that rule arose long ago in a conclusory fashion well before the
Supreme Court’s more recent (and reasoned) guidance on this issue.