Gibson v. NJ Dept Law & Pub

Opinions of the United

2005 Decisions States Court of Appeals

for the Third Circuit

6-14-2005

Gibson v. NJ Dept Law & Pub

Precedential or Non-Precedential: Precedential

Docket No. 04-1847

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

NO. 04-1847

___________

EMORY E. GIBSON, JR.

Appellant

v.

SUPERINTENDENT OF NEW JERSEY DEPARTMENT

OF LAW AND

PUBLIC SAFETY-DIVISION OF STATE POLICE; NEW

JERSEY TURNPIKE AUTHORITY; SEAN REILLY; J.W.

PENNYPACKER; PETER VERNIERO; RONALD

SUSSWEIN; JOHN FAHY; GEORGE ROVER; JOHN

DOES 1-10;

TREASURER STATE OF NEW JERSEY

___________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil No. 02-cv-05470)

District Judge: Honorable Robert B. Kugler

___________

Argued February 11, 2005

Before: BARRY, FUENTES, and VAN ANTWERPEN,

Circuit Judges

(Filed: June 14, 2005 )

David Rudovsky (Argued)

Kairys, Rudovsky, Epstein & Messing

924 Cherry Street

Suite 500

Philadelphia, PA 19107

William H. Buckman

714 East Main Street

Suite 1B

Moorestown, NJ 08057

Counsel for Appellant

James H. Martin (Argued)

Peter C. Harvey, Attorney General of New Jersey

Patrick DeAlmeida, Assistant Attorney General - Of Counsel

Robert P. Shane, Deputy Attorney General

Richard J. Hughes Justice Complex

P.O. Box 112

Trenton, NJ 08625

Counsel for Appellees Verniero, Susswein,

Fahy, Rover, Pennypacker and Reilly

2

John F. Hipp

Spadoro & Hilson

90 Woodbridge Center Drive

Suite 610

Woodbridge, NJ 07095

Counsel for Appellee New Jersey Turnpike

___________

OPINION 1

___________

VAN ANTWERPEN, Circuit Judge

Emory Gibson, Jr. appeals from two orders of the

District Court which effectively dismissed his § 1983 action

in its entirety. According to Gibson, in 1992 he was traveling

on the New Jersey Turnpike when he was unlawfully stopped,

searched and arrested by two New Jersey State Police

Troopers. Gibson alleges that the stop and search were part

of a pattern of racially discriminatory law enforcement

practices undertaken by the New Jersey State Police. Ten

years after his initial stop and eight years after his conviction,

Gibson was released from prison after newly obtained

1

This Opinion represents the Opinion of the Court on all

issues except the discussion of the Fourth Amendment claims in

Part III.A. The Opinion of the Court on those issues is

contained in the Opinion of Judge Fuentes filed herewith

(hereinafter referred to as “Judge Fuentes’s Opinion”).

3

evidence suggested that his initial stop was tainted by racial

animus. He subsequently brought this action against the New

Jersey State Police (“NJSP”) Superintendent;2 J.W.

Pennypacker and Sean Reilly,3 the individual NJSP Troopers

who originally arrested him; former New Jersey Attorney

General Peter Verniero; former Deputy Attorneys General

Ronald Susswein, John Fahy, and George Rover;4 the New

Jersey Turnpike Authority; the Treasurer of New Jersey; and

several unnamed “John Doe” individuals who allegedly aided

in the illegal search or the suppression of evidence.

In federal claims brought under 42 U.S.C. §§ 1983 and

1985, Gibson alleged that the defendants violated his right of

access to the courts, his Fourth Amendment right to freedom

from illegal search and seizure, and his Fourteenth

Amendment right to equal protection under the law. He also

alleges that the defendants conspired to violate these rights

and conspired against him on account of his race.

Additionally, Gibson brought several claims under state law.

The District Court dismissed all of the claims as set forth

below.

2

The claim against the Superintendent was for injunctive

relief only.

3

J.W. Pennypacker and Sean Reilly are collectively

referred to as “the Troopers.”

4

We refer to Peter Verniero, Ronald Susswein, John Fahy,

and George Rover collectively as the “Attorney General

defendants.”

4

I. FACTUAL BACKGROUND AND PROCEDURAL

HISTORY

The following facts are taken from Gibson’s

Complaint. Because we are reviewing the grant of a motion

to dismiss, we take these allegations as true and view them in

a light most favorable to the appellant. Christopher v.

Harbury, 536 U.S. 403, 406 (2002).

Emory Gibson, Jr. is an African-American male. On

October 28, 1992, Gibson was sitting in the rear seat of a

vehicle occupied by two other African-American men,

traveling southbound on the New Jersey Turnpike. At

approximately 4:20 a.m., New Jersey State Police Troopers

Pennypacker and Reilly pulled their marked NJSP cruiser

behind the car in which Gibson was traveling and activated

the cruiser’s warning lights; the driver promptly pulled over.

Without a warrant, the Troopers searched the vehicle and then

searched and arrested Gibson. Gibson and the other

occupants of the vehicle were charged with various offenses

after the Troopers discovered illegal drugs in the car. Gibson

alleges that the Troopers stopped the car and conducted the

search without probable cause.

Gibson was tried on April 20 and 21, 1994. He was

found guilty on two counts of drug-related offenses and

sentenced to fifty years in prison. At trial, the prosecution

relied on the testimony of Troopers Pennypacker and Reilly,

as well as Dennis Tully, who testified as an expert on drug

interdiction and valuation. According to Gibson,

impeachment evidence existed at that time which showed that

5

Trooper Tully had a “monthly African American arrest rate on

the Turnpike.” (Appellant App. at A–93.)

In 1996, the Superior Court of New Jersey in State v.

Soto, 734 A.2d 350, 360 (N.J. Super. Ct. Law Div. 1996),

determined that NJSP Troopers were racially profiling drivers

on the New Jersey Turnpike and targeting African-Americans

for stops. Citing Soto, Gibson filed a petition for post-

conviction relief and requested discovery on February 18,

1999. On February 8, 2000, the Superior Court, Law

Division, denied the request for post-conviction relief, in part

because Gibson did not allege sufficient evidence of racial

profiling or the illegality of his stop and arrest.

Later, on January 29, 2002, the Superior Court of New

Jersey, Appellate Division, reversed Gibson’s conviction

because exculpatory material uncovered in November 2000

tended to show that he was illegally stopped and arrested. On

April 19, 2002, Gibson’s Motion to Dismiss and Vacate the

Conviction of Plaintiff was granted because there was a

colorable basis to believe that Gibson was stopped and

arrested as a result of unlawful racial profiling.

On November 14, 2002, Gibson filed a Complaint in

the United States District Court for the District of New Jersey,

in which he made six claims. Counts One, Two and Three

were brought under 42 U.S.C. § 1983. In Count One, Gibson

claimed that the defendants’ unconstitutional acts denied him

effective access to the courts and resulted in his

unconstitutional conviction and imprisonment. In Count

Two, he sought injunctive relief from the NJSP

6

Superintendent,5 and in Count Three, he alleged that the

defendants “conspired to violate Plaintiff’s civil rights,

namely the rights to meaningful access to the courts and the

right to be free from unconstitutional conviction and

imprisonment.” (Appellant App. at A-103.) In Count Four,

Gibson alleged that the defendants were liable under 42

U.S.C. § 1985 for conspiring “to violate the civil rights of

Plaintiff herein based on his race.” (Id. at A-103 to A-104.)

Counts Five and Seven (there was no Count Six) were state

law claims.

Appellees moved to dismiss all of the counts, arguing

that they were time-barred, and that several of the defendants

were entitled to Eleventh Amendment immunity,

prosecutorial immunity and qualified immunity. On

December 12, 2003, the District Court dismissed as time-

barred Gibson’s “constitutional claims for selective

enforcement and failure to train (as well as any claims that

reasonably can be construed to plead violations of the Fourth

Amendment and malicious prosecution).” (Appellant App. at

A-36.) The District Court also dismissed the claim against

the defendant Treasurer of New Jersey and ordered further

briefing and argument on the issue of qualified immunity as to

the surviving claims. On February 24, 2004, the District

Court dismissed the remaining claims. Gibson timely

appealed.

5

Gibson’s counsel stated at oral argument that they are no

longer pursuing this claim.

7

Consistent with this opinion and the Judge Fuentes’s

Opinion, we will reverse, and allow Gibson to proceed with

his claims brought under 42 U.S.C. § 1983 in Count One

alleging that the Troopers unconstitutionally searched and

seized Gibson in violation of the Fourth Amendment, and

subjected him to selective enforcement of the laws in

violation of the Equal Protection Clause of the Fourteenth

Amendment. We will also reinstate the 42 U.S.C. §§ 1983

and 1985 conspiracy claims in Counts Three and Four, and

the state law claims in Counts Five and Seven.

II. JURISDICTION AND STANDARD OF REVIEW

The District Court had subject matter jurisdiction

pursuant to 28 U.S.C. § 1331 (2005). This Court has

jurisdiction over the final order and judgment pursuant to 28

U.S.C. § 1291 (2005). We exercise plenary review over both

the District Court’s dismissal of a claim on statute of

limitations grounds under Fed. R. Civ. P. 12(b)(6) and its

grant of qualified immunity. Leveto v. Lapina, 258 F.3d 156,

161 (3d Cir. 2001).

III. ANALYSIS

The nature of Gibson’s multiple claims in Count One

is somewhat difficult to ascertain so we begin by examining

the Complaint.6 Count One was brought under 42 U.S.C. §

6

Count One of Gibson’s Complaint states in its entirety:

81. Defendants, under the color of state law, deprived

8

Plaintiff of his constitutional and civil right to

meaningful access to the courts, derived from Article IV,

the First, Fifth, Sixth and Fourteenth Amendments to the

United States Constitution, and the right to be free from

an unconstitutional conviction and imprisonment by,

among other things:

– Detaining Plaintiff without probable cause;

– Searching and seizing the car Plaintiff was

in without probable cause;

– Searching Plaintiff without probable

cause;

– Arresting Plaintiff without probable cause;

– Falsely imprisoning Plaintiff;

– Improperly denying Plaintiff access to fair

and meaningful judicial proceedings

during his criminal trial, subsequent post-

conviction proceedings and separate civil

suits by suppressing evidence beneficial to

Plaintiff in violation of Brady v. Maryland,

similar state law and ethical duties;

– Depriving Plaintiff of his constitutional

right to equal protection of the laws;

– Imprisoning Plaintiff unconstitutionally for

a charge later vacated by motion of the

State;

– Failing to train subordinates;

– Failing to supervise/control subordinates;

– Failing to correct the

9

1983 which provides a cause of action against a person who,

unconstitutional/discriminatory practices

of subordinates;

– Continually condoning and ratifying a

history of unconstitutional/discriminatory

acts despite numerous allegations over the

years of discrimination based on race;

– Improperly screening, hiring, training,

supervising, disciplining and retaining

dangerous police officers.

82. The above acts constitute a violation of the Civil Rights

Act, 42 U.S.C. § 1983 for a violation of one’s civil and

constitutional rights under the color of State law.

83. But for the Defendants’ unlawful acts, Plaintiff would not

have been denied meaningful access to the courts in his

criminal proceedings and post-conviction relief

proceedings; and would have been able to bring a civil

cause of action against Defendants for Plaintiff’s civil

rights violations.

84. As a direct result of Defendants’ unlawful acts which

denied Plaintiff his right to access the courts, Plaintiff

cannot seek remedy by way of causes of action mentioned

in the previous paragraph since they are either time barred

or moot.

85. As a proximate result of the aforementioned acts, Plaintiff

has been damaged and has suffered severe emotional

injuries, including mental distress and anguish.

(Appellant App. at A-100 to A-103) (emphasis added.)

10

acting under color of state law, deprives another of a

constitutional or federal right. Thus, to state a claim under §

1983, Gibson must indicate: (1) of what constitutional or

federal right he was deprived, and (2) how he was deprived of

that right under color of state law. 42 U.S.C. § 1983 (2005);

Basista v. Weir, 340 F.2d 74, 79 (3d Cir. 1965).

The first step in evaluating a § 1983 claim is to identify

the specific constitutional right infringed. Albright v. Oliver,

510 U.S. 266, 271 (1994) (Rehnquist, C.J., plurality opinion).

It appears that in Count One, Gibson’s Complaint alleges two

main claims of constitutional deprivation: (1) defendants

denied Gibson access to the courts by suppressing exculpatory

information, and (2) defendants violated Gibson’s “right to be

free from an unconstitutional conviction and imprisonment.”

(Appellant App. at A-100 to A-101.) The Complaint then

alleges a litany of constitutional violations which underlie the

main claims. Id. at A-101 to A-102.

The main claim of denial of access to the courts is well

recognized and actionable. Christopher, 536 U.S. at 415 n.12.

However, standing alone without more supporting detail,

Gibson’s other main claims concerning his right to be free

from unconstitutional conviction and imprisonment7 appear to

7

At the outset, we note that Gibson was not pursuing a

malicious prosecution claim. (Appellant App. at A-22). It

appears that Gibson may have simply quoted the phrase

“unconstitutional conviction or imprisonment” from the

Supreme Court’s holding in Heck v. Humphrey, 512 U.S. 477,

486-87 (1994), which held that “to recover damages for

11

be more in the nature of legal conclusions or merely a

description of the type of harm Gibson allegedly suffered.

Recognizing this, the District Court read Count One of the

Complaint as alleging a denial of access to the courts claim,

as well as individual claims under the Fourth and Fourteenth

Amendments. (Appellant App. at A-20 to A-28.)

Specifically, Gibson claimed that his constitutional rights

were violated: (A) when Troopers Pennypacker and Reilly

searched and seized Gibson on the New Jersey Turnpike in

violation of the Fourth Amendment, (B) when the Troopers

racially profiled Gibson and thereby subjected him to

allegedly unconstitutional conviction or imprisonment, or for

other harm caused by actions whose unlawfulness would render

a conviction or sentence invalid, a § 1983 plaintiff must prove

that the conviction or sentence has been reversed on direct

appeal, expunged by executive order, declared invalid by a state

tribunal authorized to make such determination, or called into

question by a federal court's issuance of a writ of habeas corpus,

28 U.S.C. § 2254.” (footnote omitted) (emphasis added).

As noted infra, Heck holds that the statute of limitations

on certain claims does not run until the underlying conviction is

set aside. However, Gibson cannot avoid the statute of

limitations applicable to § 1983 claims not covered by Heck by

merely cloaking such claims in the “right to be free from an

unconstitutional conviction and imprisonment.” With the

possible exception of malicious prosecution claims, such

cloaking would, in effect, nullify the statute of limitations for all

of Gibson’s § 1983 claims, and we believe this is why the

District Court read the Complaint as it did.

12

discriminatory enforcement of the law in violation of the

Equal Protection Clause of the Fourteenth Amendment, (C)

when the Troopers and Attorney General defendants denied

him effective access to the courts by suppressing exculpatory

evidence, and (D) when the NJSP and the New Jersey

Turnpike Authority (“NJTA”) failed to properly train and

discipline the Troopers in question. Id. The parties did not

dispute this characterization of the Complaint in their briefs or

at oral argument, thus we will interpret the Complaint in this

way.

A. Fourth Amendment Claims

We begin by addressing Gibson’s claim that the

Troopers violated his Fourth Amendment rights.8 The District

Court concluded that all of the various ways by which Gibson

alleges his Fourth Amendment rights were violated were

barred by the statute of limitations.

An action brought under 42 U.S.C. § 1983 is subject to

8

The Fourth Amendment states:

The right of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches and seizures,

shall not be violated, and no Warrants shall issue, but upon

probable cause, supported by Oath or affirmation, and

particularly describing the place to be searched, and the persons

or things to be seized.

U.S. Const. amend. IV.

13

the state statute of limitations that governs actions for

personal injury. Cito v. Bridgewater Township Police Dep’t,

892 F.2d 23, 25 (3d Cir. 1989). “In New Jersey that statute is

N.J.S.A. 2A: 14-2, which provides that an action for an injury

to the person caused by a wrongful act, neglect, or default,

must be convened within two years of accrual of the cause of

action.” Id. (quoting Brown v. Foley, 810 F.2d 55, 56 (3d Cir.

1987)) (internal quotation marks omitted). Although state law

governs the limitations period, it is federal law that governs

the accrual of § 1983 claims. Montgomery v. De Simone, 159

F.3d 120, 126 (3d Cir. 1998).

Generally, “the limitations period begins to run from

the time when the plaintiff knows or has reason to know of

the injury which is the basis of the section 1983 action.” Id.

at 126 (quoting Genty v. Resolution Trust Corp., 937 F.2d

899, 919 (3d Cir. 1991)) (internal quotation marks omitted).

However, this rule does not apply when a plaintiff brings a §

1983 action that, if successful, would demonstrate that the

plaintiff’s underlying criminal conviction or imprisonment is

invalid. Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). In

such a situation, no cause of action arises until the conviction

or sentence is invalidated, and the statute of limitations does

not begin to run until the time of such invalidation. Id. at 489.

In the case before us, the arrest, trial and other multiple

alleged illegal acts all occurred more than two years before

this suit was brought, and therefore all would be barred by the

two-year statute of limitations. The dispute between the

parties is whether or not these claims are saved from being

untimely because they fall under the Heck delayed accrual

rule, and did not accrue until Gibson’s conviction was set

14

aside in 2002.

In Heck v. Humphrey, Heck brought a § 1983 suit

while his criminal appeal was pending. Id. at 479. Heck

alleged numerous constitutional violations in the conduct of

his trial, and requested compensatory and punitive money

damages, but no injunctive relief. Id. The Supreme Court

concluded that such a claim was not cognizable under § 1983

until Heck’s conviction or sentence had been invalidated, not

because there was an exhaustion requirement, but simply

because no claim existed until that time. Id. at 489. As the

Court explained, “to recover damages for allegedly

unconstitutional conviction or imprisonment, or for other

harm caused by actions whose unlawfulness would render a

conviction or sentence invalid, a § 1983 plaintiff must prove

that the conviction or sentence has been reversed on direct

appeal, expunged by executive order, declared invalid by a

state tribunal authorized to make such determination, or called

into question by a federal court’s issuance of a writ of habeas

corpus, 28 U.S.C. § 2254.” Id. at 486-87 (footnote omitted).

Nevertheless, the Supreme Court in Heck was careful

to explain that not all constitutional claims arising from an

arrest and prosecution are the kind that are subject to the

deferred accrual rule. Some claims would not necessarily

invalidate a conviction. The Court laid particular emphasis on

Fourth Amendment claims in footnote seven, explaining:

For example, a suit for damages attributable to an

allegedly unreasonable search may lie even if the

challenged search produced evidence that was

15

introduced in a state criminal trial resulting in the §

1983 plaintiff’s still-outstanding conviction. Because

of doctrines like independent source and inevitable

discovery, see Murray v. United States, 487 U.S. 533,

539 (1988), and especially harmless error, see Arizona

v. Fulminante, 499 U.S. 279, 307-308 (1991), such a §

1983 action, even if successful, would not necessarily

imply that the plaintiff's conviction was unlawful. In

order to recover compensatory damages, however, the

§ 1983 plaintiff must prove not only that the search

was unlawful, but that it caused him actual,

compensable injury, see Memphis Community School

Dist. v. Stachura, 477 U.S. 299, 308 (1986), which, we

hold today, does not encompass the “injury” of being

convicted and imprisoned (until his conviction has

been overturned).

Heck, 512 U.S. at 487.

This Court dealt with the applicability of Heck in

Montgomery v. De Simone, 159 F.3d at 126. In Montgomery,

the plaintiff Rosemary Montgomery was arrested and charged

with speeding, drunk driving, and refusing to take a

breathalyser test. Id. at 123. At her municipal hearing, she

introduced evidence that she was not drunk or speeding, and

that at the time of her arrest, the arresting officer had

propositioned her. Id. at 122-23. Although a municipal judge

found her guilty, later the Superior Court of New Jersey, in a

trial de novo, reversed the convictions. Id. at 123. After her

convictions were overturned, she brought an action against

the arresting officer in the United States District Court for

16

false arrest and false imprisonment. Id. The District Court

ruled that her claims accrued at her arrest and were time-

barred by the statute of limitations. Id.

In affirming the dismissal, this Court explained that

“[i]t is axiomatic that under federal law, which governs the

accrual of section 1983 claims, the limitations period begins

to run from the time when the plaintiff knows or has reason to

know of the injury which is the basis of the section 1983

action. . . . Accordingly, under Gentry, [sic] the two-year

limitation period for Montgomery’s section 1983 false arrest

and false imprisonment claims began to run on September 30,

1992, the night of Montgomery's arrest and detention.” Id. at

126 (internal quotation marks omitted). In a footnote, we

explained that Montgomery’s claim was not subject to the

Heck accrual rule:

Montgomery argues that under Heck v. Humphrey, 512

U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994),

these claims only accrued after her criminal charges

were resolved in her favor. In Heck, the Court held

that a section 1983 claim for damages attributable to an

unconstitutional conviction or sentence does not accrue

until that conviction or sentence has been invalidated.

Heck, 512 U.S. at 489-90, 114 S.Ct. 2364. The Court

also noted, however, that if a successful claim would

not demonstrate the invalidity of any outstanding

criminal judgment, it should be allowed to proceed. Id.

at 487, 114 S.Ct. 2364. Because a conviction and

sentence may be upheld even in the absence of

probable cause for the initial stop and arrest, we find

17

that Montgomery's claims for false arrest and false

imprisonment are not the type of claims contemplated

by the Court in Heck which necessarily implicate the

validity of a conviction or sentence. See Mackey v.

Dickson, 47 F.3d 744, 746 (5th Cir.1995) (stating that

“[i]t is well established that a claim of unlawful arrest,

standing alone, does not necessarily implicate the

validity of a criminal prosecution following the

arrest.”). Accordingly, we read Heck to be consistent

with our determination that Montgomery's false arrest

and false imprisonment claims accrued on the night of

her arrest.

Montgomery, 159 F.3d at 126 n.5.

Gibson’s Complaint lists multiple Fourth Amendment

9

claims including claims that Troopers Pennypacker and

Reilly violated his rights by detaining and arresting him

without probable cause and falsely imprisoning him. We

9

Gibson claims that the Troopers violated the Fourth

Amendment by:

– Detaining Plaintiff without probable cause;

– Searching and seizing the car Plaintiff was

in without probable cause;

– Searching Plaintiff without probable

cause;

– Arresting Plaintiff without probable cause;

– Falsely imprisoning Plaintiff;

(Appellant App. at A-101.)

18

view these claims as claims of false arrest or imprisonment.

See Porterfield v. Lott, 156 F.3d 563, 568 (4th Cir. 1998)

(“[A]llegations that a warrantless arrest or imprisonment was

not supported by probable cause advanced a claim of false

arrest or imprisonment . . . .”). Montgomery, 159 F.3d at 126

n.5, states that “[b]ecause a conviction and sentence may be

upheld even in the absence of probable cause for the initial

stop and arrest, . . . claims for false arrest and false

imprisonment are not the type of claims contemplated by the

Court in Heck.” We view this language as sufficient to

clearly exclude Gibson’s Fourth Amendment claims of false

imprisonment, and arrest and detention without probable

cause from the Heck deferred accrual rule.

Other circuits have taken a position similar to our

decision in Montgomery. See Beck v. City of Muskogee

Police Dep’t, 195 F.3d 553, 558 (10th Cir. 1999) (holding that

arrest, interrogation, and search and seizure claims accrue

when they actually occur and Heck does not affect them

because ultimate success on them would not necessarily

question the validity of a conviction); Simmons v. O’Brien,

77 F.3d 1093, 1095 (8th Cir. 1996) (the admission of a

coerced confession is similar to the admission of illegally

seized evidence which does not necessarily imply the

invalidity of a conviction, thus a cause of action accrues

immediately).10

10

Gibson argues that we should engage in a fact-intensive

analysis of each of his claims to determine if they would

necessarily imply that his underlying conviction is unlawful. To

19

be certain, some courts have engaged in a fact-intensive analysis

of each claim. Wiley v. City of Chicago, 361 F.3d 994, 997 (7th

Cir. 2004) (“Heck may in fact occasionally bar a civil rights

claim premised on a false or wrongful arrest.”); Ballenger v.

Owens, 352 F.3d 842, 846 (4th Cir. 2003) (holding on facts

similar to this case that when evidence seized in violation of the

Fourth Amendment is the only evidence underlying a

conviction, a successful civil challenge would necessarily imply

the invalidity of the conviction); Hughes v. Lott, 350 F.3d 1157,

1161 (11th Cir. 2003); Harvey v. Waldron, 210 F.3d 1008, 1015

(9th Cir. 2000); Covington v. City of New York, 171 F.3d 117,

119 (2d Cir. 1999) (supporting a fact-based inquiry); Hudson v.

Hughes, 98 F.3d 868, 872 (5th Cir. 1996) (plaintiff may not sue

for an unlawful seizure if success would imply that the only

evidence of the crime must be suppressed).

We did not engage in such a fact-intensive analysis in

Montgomery v. De Simone, and we note that the Tenth Circuit

expressly rejected such an approach in Beck v. City of

Muskogee Police Dep’t, 195 F.3d 553, 559 n.4 (10th Cir. 1999).

Moreover, the fact-intensive approach would require us to

answer difficult questions about what might have happened in

lower court criminal proceedings. Heck prohibits civil actions

which would question the validity of underlying criminal

convictions and we are not inclined to do that in order to

determine whether or not Heck is applicable.

Even if we were to adopt the fact-intensive analysis

Gibson argues for, we could not conclude that exclusion of the

evidence in this case would necessarily have invalidated

Gibson’s underlying state-court conviction. We cannot say what

20

After a thorough review of Heck, I conclude that

Gibson’s Fourth Amendment claims that he was searched and

the car was searched and seized without probable cause are

not subject to the Heck deferred accrual rule because they do

not necessarily imply that Gibson’s underlying state court

conviction was unlawful. Heck, 512 U.S. at 487. Heck was

an attempt by the Supreme Court to reconcile federal habeas

corpus law with § 1983 civil claims. In Preiser v. Rodriguez,

411 U.S. 475, 500 (1972), a forerunner of Heck, the Supreme

Court rejected the premise that a person could circumvent

federal habeas corpus exhaustion requirements by merely

seeking injunctive relief in a § 1983 action. Preiser “held that

habeas corpus is the exclusive remedy for a state prisoner who

other evidence of guilt may have been present or whether there

may have been a valid reason for stopping the vehicle other than

race. The Supreme Court in Heck noted the possible

applicability of other doctrines such as independent source,

inevitable discovery, and harmless error. Heck, 512 U.S. at 487

n.7.

We have before us only nine pages of the trial court

record and on this record we are unable to determine what

caused the police to stop the vehicle. In particular, it is difficult

to support conclusion in Judge Fuentes’s Opinion that the only

evidence supporting the criminal conviction was obtained as a

result of an unlawful racial profiling stop. In fact, at oral

argument counsel suggested that the car in which Gibson was

traveling violated the motor vehicle code.

21

challenges the fact or duration of his confinement and seeks

immediate or speedier release, even though such a claim may

come within the literal terms of § 1983.” Heck, 512 U.S. at

481. However, Preiser left open the question of what happens

when a person seeks only monetary relief in a § 1983 suit, but

would nonetheless demonstrate the invalidity of his or her

conviction if successful. Id. Heck dealt with this question.

In Heck, the Court specified that it was operating at the

intersection of the Civil Rights Act and the federal habeas

corpus statute, id. at 480, as it addressed “the question posed

by § 1983 damages claims that do call into question the

lawfulness of conviction or confinement,” but do not seek

equitable relief, id. at 483. Accordingly, we doubt that the

Court had Fourth Amendment claims in mind when it spoke

of claims that “would necessarily imply the invalidity of [a]

conviction or sentence.” Id. at 487. We say this because

although habeas corpus claims may be premised on many

different constitutional violations, they may not be based upon

violations of the Fourth Amendment “where the State has

provided an opportunity for full and fair litigation of a Fourth

Amendment claim.” Stone v. Powell, 428 U.S. 465, 482

(1976).

“‘A claim of illegal search and seizure under the

Fourth Amendment is crucially different from many other

constitutional rights; ordinarily the evidence seized can in no

way have been rendered untrustworthy by the means of its

seizure and indeed often this evidence alone establishes

beyond virtually any shadow of a doubt that the defendant is

guilty.’” Id. at 490 (quoting Kaufman v. United States, 394

22

U.S. 217, 237 (1969) (Black J., dissenting)). The

exclusionary rule is a judicially created remedy for criminal

cases meant to deter deprivations of the Fourth Amendment,

but it is not itself a personal constitutional right of the

aggrieved party. United States v. Calandra, 414 U.S. 338, 348

(1974). Therefore, as the Supreme Court has explained,

“[w]hether the exclusionary sanction is appropriately imposed

in a particular case, our decisions make clear, is ‘an issue

separate from the question whether the Fourth Amendment

rights of the party seeking to invoke the rule were violated by

police conduct.’” United States v. Leon, 468 U.S. 897, 906

(1984) (quoting Illinois v. Gates, 462 U.S. 213, 223 (1983)).

A court in a civil action can decide that an individual

was subjected to an illegal search or seizure without reaching

the issue of whether the evidence found pursuant to that act

should have been excluded from the criminal trial. Although

a successful Fourth Amendment civil claim might suggest that

certain evidence should have been excluded at a criminal trial,

that issue will never be reached in the civil context and

therefore, the successful civil claim will not necessarily imply

the invalidity of the underlying criminal conviction.11

11

Judge Fuentes’s Opinion ignores this point, and instead

surmises that because Gibson’s conviction rests solely on

evidence discovered during his arrest, success on Gibson’s false

arrest claim would “necessarily imply” that he was improperly

convicted. Op. of Fuentes, J. at 10. However, this does not

square with the Supreme Court’s admonition that the

exclusionary rule is not a personal constitutional right. Stone v.

23

Footnote six in the Heck opinion demonstrates a

narrow exception to the general statement in footnote seven

that a successful Fourth Amendment claim “would not

necessarily imply that the plaintiff’s conviction was

unlawful,” Heck, 512 U.S. at 487 n.7. As footnote six 12

Powell, 428 U.S. 465, 480-81 (1976). “[A] Fourth Amendment

violation is ‘fully accomplished’ by the illegal search or seizure,

and no exclusion of evidence from a judicial or administrative

proceeding can ‘cure the invasion of the defendant’s rights

which he has already suffered.’ Pa. Bd. of Prob. & Parole v.

Scott, 524 U.S. 357, 362 (1998) (quoting United States v. Leon,

468 U.S. 897, 906 (1984)). Thus, “the State’s use of evidence

obtained in violation of the Fourth Amendment does not itself

violate the Constitution.” Id. It is therefore hard to understand

how we can decide, in a collateral matter, that New Jersey’s

introduction of evidence obtained in violation of the Fourth

Amendment would necessarily invalidate Gibson’s conviction.

12

Footnote 6 states:

An example of this latter category--a § 1983 action that

does not seek damages directly attributable to conviction

or confinement but whose successful prosecution would

necessarily imply that the plaintiff's criminal conviction

was wrongful--would be the following: A state defendant

is convicted of and sentenced for the crime of resisting

arrest, defined as intentionally preventing a peace officer

from effecting a lawful arrest. (This is a common

definition of that offense. See People v. Peacock, 68

N.Y.2d 675, 505 N.Y.S.2d 594, 496 N.E.2d 683 (1986);

24

explains, where a successful Fourth Amendment violation

would actually “negate an element of the offense of which

[the plaintiff] has been convicted” the claim undermines the

charge under which the defendant was convicted, as

contrasted with merely undermining evidence supporting the

underlying conviction. Id. at 487 n.6. This narrow exception

is not present in the case before us.

For the reasons stated above, I would affirm the

dismissal of all claims seeking damages for violations of

Gibson’s Fourth Amendment rights as these claims are time-

barred.13

4 C. Torcia, Wharton's Criminal Law § 593, p. 307 (14th

ed. 1981).) He then brings a § 1983 action against the

arresting officer, seeking damages for violation of his

Fourth Amendment right to be free from unreasonable

seizures. In order to prevail in this § 1983 action, he

would have to negate an element of the offense of which

he has been convicted. Regardless of the state law

concerning res judicata, see n.2, supra, the § 1983 action

will not lie.

Heck, 512 U.S. at 486-87 n.6.

13

I am troubled by the statement in Judge Fuentes’s

Opinion that, “Viewing the evidence in the light most favorable

to Gibson, his car was stopped because of a pattern and practice

of racial profiling, not because police had reasonable suspicion

to believe a crime was being committed.” Op. of Fuentes, J. at

9. The record is incomplete at this point and the question of

25

B. Fourteenth Amendment Claims

Gibson also challenges the District Court’s dismissal

of his claim in Count One that Troopers Pennypacker and

Reilly subjected him to racially selective law enforcement

practices in violation of the Equal Protection Clause of the

Fourteenth Amendment.14 This requires a wholly different

whether Gibson’s car was stopped for racially motivated

reasons is completely distinct from the question of whether the

police had probable cause for the stop. Whren v. United States,

517 U.S. 806, 813 (1996). The constitutional reasonableness of

a traffic stop does not depend on the intent of the officers

involved and therefore, the officers’ racially discriminatory

motivations cannot invalidate an objectively reasonable stop.

Id. As long as the officers had probable cause for believing that

a traffic violation occurred, the stop was reasonable. Id. at 810.

Furthermore, this issue appears to have been already

litigated at the state court level. “State courts unquestionably

have power to render preclusive judgments regarding the Fourth

Amendment's prohibition of unreasonable searches and

seizures.” Linnen v. Armainis, 991 F.2d 1102, 1108 (3d Cir.

1993). Indeed, even if the state court was wrong in its

determination on those Fourth Amendment issues, Gibson is

still precluded from relitigating the issue. 18 C. Wright, A.

Miller, & E. Cooper, Jurisdiction and Related Matters § 4416.

14

Section One of the Fourteenth Amendment states in

relevant part:

No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

26

analysis.

Relying on Whren v. United States, 517 U.S. 806

(1996), the District Court reasoned that Gibson’s claim for

selective enforcement is not subject to the Heck deferred

accrual rule because success on this claim would not

necessarily have called into question his conviction. In

Whren, 517 U.S. at 813, the Supreme Court held that police

can temporarily detain a motorist when they have probable

cause to believe that he violated a traffic ordinance, even if

the police have some other motivation to stop the motorist.

However, the Court in Whren expressly limited its analysis to

the Fourth Amendment, and acknowledged that “the

Constitution prohibits selective enforcement of the law based

on considerations such as race. But the constitutional basis

for objecting to intentionally discriminatory application of

laws is the Equal Protection Clause, not the Fourth

Amendment.” Id.

As we explained in Carrasca v. Pomeroy, 313 F.3d

828, 836 (3d Cir. 2002), “[t]he fact that there was no Fourth

Amendment violation does not mean that one was not

discriminatorily selected for enforcement of a law. Plaintiffs’

United States; nor shall any State deprive any person of

life, liberty, or property, without due process of law; nor

deny to any person within its jurisdiction the equal

protection of the laws.

U.S. Const. Amend. XIV, § 1.

27

equal protection claims under the Fourteenth Amendment

require a wholly separate analysis from their claims under the

Fourth Amendment.” (internal citations omitted.)

Whren and Carrasca stand for the proposition that,

even though the Fourth Amendment reasonableness standard

is not influenced by the subjective intentions of the person

making the search or seizure, if a person can demonstrate that

he was subjected to selective enforcement in violation of his

Equal Protection rights, his conviction will be invalid.15

United States v. Berrigan, 482 F.2d 171, 174 (3d Cir. 1973)

(“[A]ny ‘systematic discrimination’ in enforcement . . . , or

‘unjust and illegal discrimination between persons in similar

circumstances,’ . . . violates the equal protection clause and

renders the prosecution invalid.”). Because a successful claim

of selective enforcement under the Fourteenth Amendment

Equal Protection Clause would have necessarily invalidated

Gibson’s conviction, under the Heck deferred accrual rule the

statute of limitations did not begin to run until his sentence

was vacated and this claim is not untimely. See Kramer v.

Village of North Fond du Lac, 384 F.3d 856, 862 (7th Cir.

15

The Appellees miss the point of Gibson’s argument in

their suggestion that success on a selective enforcement claim

would only imply the invalidity of prosecutions for traffic

violations. (Appellee Brief at 31.) Gibson’s allegations are that

the racial profiling was part of an invidious system of

discriminatory law enforcement which selectively targeted

minorities for drug crimes. The traffic stops were only a vehicle

for those efforts.

28

2004) (recognizing that the Heck deferred accrual rule applies

to Fourteenth Amendment equal protection claims); Portley-

El v. Brill, 288 F.3d 1063, 1067 (8th Cir. 2002) (stating that

an equal protection claim is a direct attack on the validity of a

disciplinary decision).

It appears that defendants do not raise a qualified

immunity defense to Gibson’s Fourteenth Amendment claims.

Furthermore, it has long been a well-settled principle that the

state may not selectively enforce the law against racial

minorities. Yick Wo v. Hopkins, 118 U.S. 356, 373-74

(1886); Berrigan, 482 F.2d at 174 (3d Cir. 1973). Thus, even

assuming, arguendo, that defendants raised the issue, we deny

Troopers Pennypacker and Reilly qualified immunity with

regard to Gibson’s Fourteenth Amendment Equal Protection

claim, and this claim may proceed.

C. Denial of Access to the Courts

Gibson’s denial of access to the courts claims in Count

One are also brought under 42 U.S.C. § 1983, and therefore

we must again identify the constitutional deprivation and the

impermissible state action implicated in these claims. 42

U.S.C. § 1983; Basista, 340 F.2d at 79. The Supreme Court

has recognized that a constitutional right to effectively use the

courts has been found in the Article IV Privileges and

Immunities Clause, the First Amendment Petition Clause, the

Fifth Amendment Due Process Clause, and the Fourteenth

Amendment Equal Protection and Due Process Clauses. See

Christopher v. Harbury, 536 U.S. 403, 415 n.12 (2002).

Asserting this right, wherever it is grounded, a plaintiff can

29

seek relief for “loss or inadequate settlement of a meritorious

case, . . . the loss of an opportunity to sue, . . . or the loss of an

opportunity to seek some particular order of relief.” Id. at 414.

Denial of access claims generally fall into two

categories. Id. at 412-13. The first type of claim alleges that

some official action is currently preventing the plaintiff from

filing a suit at the present time. Id. at 413. The object of such

a claim is to remove the barrier so that the plaintiff can pursue

the separate claim for relief. Id. In these cases, the

constitutional deprivation is demonstrated by the very fact that

the plaintiff cannot presently pursue his underlying case until

the frustrating condition is removed.

In the second category of cases, the plaintiff looks

backward and alleges that some past wrongful conduct

influenced a litigation opportunity such that the litigation

“ended poorly, or could not have commenced, or could have

produced a remedy subsequently unobtainable.” Id. at 414

(footnotes omitted). In these cases, because the action was

never pursued, it is often not as clear that the defendant’s

wrongful conduct prevented the plaintiff from pursuing or

defending a claim, or that he is still foreclosed from accessing

the courts. Therefore, “the underlying cause of action,

whether anticipated or lost, is an element that must be

described in the Complaint, just as much as allegations must

describe the official acts frustrating the litigation. It follows,

too, that when the access claim (like this one) looks

backward, the Complaint must identify a remedy that may be

awarded as recompense but not otherwise available in some

suit that may yet be brought.” Id. at 415. When a denial of

30

access claim involves a state’s suppression of evidence that is

material to a criminal trial, the claim does not accrue until the

conviction is invalidated. See Smith v. Holtz, 87 F.3d 108,

112 (3d. Cir. 1996). The parties both agree that this case

implicates only “backward-looking” types of claims.

(Appellant Brief at 27-28; Appellee Brief at 36.)

Gibson’s “backward-looking” denial of access claims

are based on two separate alleged litigation opportunities.

The first was Gibson’s criminal trial in which he claims he

was unable to mount an effective defense because the

Troopers did not disclose exculpatory information. The

second involves his inability to pursue effective post-

conviction relief actions that would have ended his

incarceration at an earlier date because the Attorney General

defendants did not disclose exculpatory evidence. We address

each in turn.

1. The Criminal Conviction

Gibson argues that Troopers Pennypacker and Reilly

violated his rights by suppressing exculpatory evidence

related to his conviction. (Appellant Brief at 11.) Gibson

attempts to base his denial of access claim on the disclosure

requirements set forth in Brady v. Maryland, 373 U.S. 83

(1963), and its progeny. In Brady, the Supreme Court held

that “the suppression by the prosecution of evidence favorable

to an accused upon request violates due process where the

evidence is material either to guilt or to punishment,

irrespective of the good faith or bad faith of the prosecution.”

Id. at 87. The prosecutor’s duty to disclose extends beyond

31

the information that he or she possesses, to include

information in the hands of police investigators working on

the case. Kyles v. Whitley, 514 U.S. 419, 421-22 (1995).

According to Gibson, because the defendants failed to

disclose exculpatory material evidence to the prosecutor or

the defendant, they violated the mandate of Brady, and can be

held liable under § 1983.

Gibson’s approach is somewhat flawed because the

Brady duty to disclose exculpatory evidence to the defendant

applies only to a prosecutor. “The Brady rule is based on the

requirement of due process. Its purpose is not to displace the

adversary system as the primary means by which truth is

uncovered, but to ensure that a miscarriage of justice does not

occur.” United States v. Bagley, 473 U.S. 667, 675 (1985)

(footnote omitted). As the Supreme Court made clear, a

prosecutor plays a special role within the adversarial process:

Within the federal system, for example, we have

said that the United States Attorney is “the

representative not of an ordinary party to a

controversy, but of a sovereignty whose

obligation to govern impartially is as

compelling as its obligation to govern at all; and

whose interest, therefore, in a criminal

prosecution is not that it shall win a case, but

that justice shall be done.” Berger v. United

States, 295 U.S. 78, 88 (1935).

Strickler v. Greene, 527 U.S. 263, 281 (1999). This “special

status” underpins the Brady rule and explains why the duty of

32

disclosure rests squarely on the shoulders of the prosecutor.

Id.

A prosecutor is the “architect” of the criminal

proceeding and must “comport with standards of justice”

when acting on behalf of the state. Brady, 373 U.S. at 88.

The prosecutor has a responsibility not just to disclose what

he or she knows, but to learn of favorable evidence known to

others acting on the government's behalf, weigh the

materiality of all favorable evidence and disclose such

evidence when it is reasonably probable that it will affect the

result of the proceedings. Kyles, 514 U.S. at 437. The police

are not equipped to perform this role and, accordingly, the

Court has refused to “substitute the police for the prosecutor,

and even for the courts themselves, as the final arbiters of the

government’s obligation to ensure fair trials.” Id. at 438.

However, Gibson also alleges that the defendants

failed to inform the prosecutor of the exculpatory information.

(Appellant Brief at 11.) Several circuits have recognized that

police officers and other state actors may be liable under §

1983 for failing to disclose exculpatory information to the

prosecutor. McMillian v. Johnson, 88 F.3d 1554, 1567 (11th

Cir. 1996), amended 101 F.3d 1363 (11th Cir. 1996); Walker

v. City of New York, 974 F.2d 293, 299 (2d Cir. 1992); Geter

v. Fortenberry, 849 F.2d 1550, 1559 (5th Cir. 1988). We

agree.

Although Brady places the ultimate duty of disclosure

on the prosecutor, it would be anomalous to say that police

officers are not liable when they affirmatively conceal

33

material evidence from the prosecutor. In this case, Gibson

alleges that the Troopers suppressed the extent of their

impermissible law enforcement tactics, and had that

information been available, he would have been able to

impeach several witnesses and possibly could have halted the

entire prosecution. We think that Gibson states an actionable

§ 1983 claim against the Troopers for interference with his

Fourteenth Amendment due process rights.

However, we also realize that this duty on the part of

the Troopers was not clearly established at the time of

Gibson’s prosecution in 1994. As this Court explained:

Where a challenged police action presents a legal

question that is “unusual and largely heretofore

undiscussed,” id. at 429, or where there is “at

least some significant authority” that lends

support of the police action, Leveto, 258 F.3d at

166, we have upheld qualified immunity even

while deciding that the action in question

violates the Constitution. On the other hand, the

plaintiff need not show that there is a prior

decision that is factually identical to the case at

hand in order to establish that a right was clearly

established.

Doe v. Groody, 361 F.3d 232, 243 (3d Cir. 2004)

Although this Court held in United States v. Perdomo,

929 F.2d 967, 970 (3d Cir. 1991), that evidence in the hands

of the police could be imputed to the prosecutor, the Supreme

34

Court did not settle this matter until 1995 when it decided

Kyles v. Whitley, 514 U.S. at 437 (“[T]he individual

prosecutor has a duty to learn of any favorable evidence

known to the others acting on the government's behalf in the

case, including the police.”). More importantly, the related

duty of the police to disclose information to the prosecutor

was not widely addressed until later. Even in 2000, this Court

was only able to assume that police officers “have an

affirmative duty to disclose exculpatory evidence to an

accused if only by informing the prosecutor that the evidence

exists.” Smith v. Holtz, 210 F.3d 186, 197 n.14 (3d Cir.

2000).16 Because such a right was not clearly established in

16

In Smith v. Holtz, 210 F.3d 186, 197 n.14 (3d Cir. 2000),

this Court was faced with a similar question as the one before

us. Avoiding the question of whether investigating police

officers have an affirmative duty to disclose exculpatory

evidence, this Court noted:

Although the affirmative duty to disclose is placed upon

the prosecutor, we will nonetheless assume for the

purposes of this appeal that investigating police officers

also have an affirmative duty to disclose exculpatory

evidence to an accused if only by informing the

prosecutor that the evidence exists. But see Kelly v.

Curtis, 21 F.3d 1544, 1552 (11th Cir. 1994). We will

further assume that a § 1983 claim alleging a due process

violation under Brady can, therefore, be asserted against

police officers. See McMillian v. Johnson, 88 F.3d 1554,

1567 n. 12 (11th Cir. 1996), amended, 101 F.3d 1363

(11th Cir. 1996).

35

this Circuit at the time of Gibson’s conviction, Troopers

Pennypacker and Reilly are entitled to qualified immunity

with regard to their failure to inform the prosecutor of Brady

material.

2. Civil Claims and Post-Conviction Relief

Gibson also alleges that the Attorney General

defendants “failed to disclose exculpatory material to

[Gibson] during the course of his incarceration and post-

conviction criminal proceedings in the New Jersey courts and

that their suppression of materials relating to racial profiling

practices on the New Jersey Turnpike violated plaintiff’s right

of access to the courts” because Gibson was prevented from

effectively pursuing post-conviction relief or a civil action

before the full disclosure of the nature of the racial profiling

was revealed in 2000. (Appellant Brief at 26.) We address the

purportedly lost civil claims and the lost post-conviction relief

claims separately.

Gibson failed to adequately describe the civil litigation

opportunities that he claims he lost. “Like any other element

of an access claim, the underlying cause of action and its lost

remedy must be addressed by allegations in the Complaint

sufficient to give fair notice to a defendant.” Christopher, 536

U.S. at 416 (internal citations omitted). Because Gibson’s

inadequate allegations do not allow us to decide whether his

lost claims were ever available or still are available, we will

uphold the dismissal of this part of his claim.

Smith, 210 F.3d at 197 n.14.

36

Gibson also claims that the defendants frustrated his

efforts to obtain post-conviction relief that would have ended

his incarceration at an earlier date. In his brief, he relies

heavily on Brady, seeking to imply a duty on the defendants to

come forward with exculpatory evidence even after his

conviction and appeal. However, Gibson has pointed to no

constitutional duty to disclose potentially exculpatory

evidence to a convicted criminal after the criminal

proceedings have concluded and we decline to conclude that

such a duty exists. We also note that the actual prosecutors in

Gibson’s case are not named as defendants, and would have

been immune if they had been so named. Imbler v. Pachtman,

424 U.S. 409, 427 (1976).

Without a duty to act, the defendants cannot be liable

for failing to come forward with the exculpatory evidence.

However, Gibson’s Complaint as it relates to the Attorney

General defendants does not simply allege that the defendants

failed to come forward with exculpatory evidence, but that

their actions obfuscated the real extent of racial profiling. “It

is firmly established that a defendant in a § 1983 suit acts

under color of state law when he abuses the position given to

him by the State.” West v. Atkins, 487 U.S. 42, 49-50 (1988).

Whether or not the Attorney General defendants had a duty

under Brady is irrelevant to the question of whether they used

their positions to perpetuate the discriminatory enforcement of

laws and to obstruct those convicted as a result of the

discriminatory enforcement from obtaining relief.

Gibson specifically alleges that, although the Attorney

General defendants published the Interim Report of the State

37

Police Review Team Regarding Allegations of Racial

Profiling in April 1999, the authors nevertheless

“intentionally withheld and suppressed the overwhelming

evidence they had gathered showing that profiling was an

entrenched agency wide policy in the NJSP.” (Appellant

App. at A-85.) According to Gibson, the suppression of this

evidence denied him the opportunity to obtain freedom for a

number of years.

Although the complete information disclosed in 2000

which eventually led to Gibson’s release would have been

helpful earlier, we cannot say that the defendants deprived

Gibson of his access to the courts. Although we recognize

that there is generally no “state-of-mind requirement

independent of that necessary to state a violation of the

underlying constitutional right” in a § 1983 suit, Daniels v.

Williams, 474 U.S. 327, 330 (1986), we adhere to the

Supreme Court’s teaching that not all acts are unconstitutional

simply because of the result, see Vill. of Arlington Heights v.

Metro. Hous. Dev. Corp., 429 U.S. 252, 264-65 (1977)

(requiring proof of an invidious discrimination purpose for a

claim of racial discrimination under the equal protection

clause). In Estate of Smith v. Marasco, 318 F.3d 497, 511 (3d

Cir. 2003), we expressed our approval of the Sixth Circuit

view that a denial of access claim is available where the state

officials “wrongfully and intentionally conceal information

crucial to a person’s ability to obtain redress through the

courts, and do so for the purpose of frustrating that right, and

that concealment and the delay engendered by it substantially

reduce the likelihood of one’s obtaining the relief to which

one is otherwise entitled.” (quoting Swekel v. City of River

38

Rouge, 119 F.3d 1259, 1262-63 (6th Cir.1997)) (emphasis

added). Gibson alleged no facts that would establish that the

actions of the Attorney General defendants in publishing the

1999 Interim Report were directed at denying relief to people

like Gibson.17 The fact that the Attorney General defendants’

actions had the unfortunate result of perpetuating his

incarceration until 2000 is insufficient under the

circumstances to establish a cause of action. Consequently,

Gibson’s claim against the Attorney General defendants was

properly dismissed.

D. The Failure to Train Claim

Gibson alleges in Count One that the NJTA had notice

of the NJSP’s practice of racial profiling, tolerated the

practice, failed to properly discipline, restrict or control

employees, failed to take adequate precautions in hiring

17

In his Reply Brief, Gibson points to only one allegation

in his Complaint (¶ 61) that the defendants were acting

purposefully when they “actively suppressed information that

would have required either (1) Plaintiff’s release from prison, or

(2) a new trial based on the exculpatory information described

herein and the misconduct of the State for suppressing same, as

stated in Brady v. Maryland and similar state law.” (Appellant

Reply Brief at 14.) However, we read this paragraph as just a

summary of Gibson’s allegations that the government

suppressed information and that the information would have

been helpful. The allegation makes no claim that the

government suppressed information in order to stifle Gibson’s

rights.

39

personnel, and intentionally suppressed known evidence of

racial profiling that would have benefitted Gibson if brought

during his prosecution or afterward. The District Court

dismissed these claims noting that the action was time-barred

and no facts were alleged to support these claims. Although

Gibson challenges the Court’s determination that no facts

were alleged to support this claim, he fails to challenge the

determination that the action is time-barred and we deem the

issue waived. Wisniewski v. Johns-Manville Corp., 812 F.2d

81, 88 (3d Cir. 1987). Accordingly, we affirm the dismissal

of the claims against the NJTA.

IV. CONCLUSION

Consistent with this Opinion and the Opinion of Judge

Fuentes, Gibson’s claims in Count One under 42 U.S.C. §

1983 that the Troopers violated his Fourth Amendment rights,

and unconstitutionally subjected him to selective enforcement

of the laws in violation of the Equal Protection Clause of the

Fourteenth Amendment may proceed. Since these claims in

Count One may proceed, it follows that the 42 U.S.C. § 1983

conspiracy claim in Count Three and the 42 U.S.C. § 1985

conspiracy claim in Count Four may also proceed against

Troopers Reilly and Pennypacker. We will also reinstate the

state law claims. The dismissal of all the remaining claims is

affirmed.

40

FUENTES, Circuit Judge, with whom BARRY, Circuit

Judge, joins, writes the opinion of the Court with respect to

Part III.A, from which Judge Van Antwerpen dissents. Judge

Van Antwerpen writes the opinion of the Court with respect

to Parts I, II, III.B-D, and IV.

We depart from our colleague’s well-reasoned dissent

with respect to Gibson’s Fourth Amendment claims. Gibson

claims that the Defendants violated his Fourth Amendment

rights, when, as a consequence of racial profiling, he was

stopped, searched, and arrested without probable cause

(henceforth referred to as “Fourth Amendment claims”). We

are asked to determine whether the statute of limitations

began to run on Gibson’s § 1983 complaint as to these claims

when he was arrested in 1992, or when his conviction was

overturned in 2002. We conclude that, under Heck v.

Humphrey, 512 U.S. 477 (1994), the statute of limitations did

not begin to run until 2002. Accordingly, Gibson’s § 1983

complaint was timely filed in 2002, notwithstanding the fact

that he was stopped, searched, and detained in 1992. We thus

reverse the District Court’s dismissal of Gibson’s Fourth

Amendment claims

.

III. A. 1. Background Relating to Fourth Amendment

Claims

41

As noted by our colleague in dissent, Gibson was a

passenger in the rear seat of an automobile that was stopped

on the New Jersey Turnpike in October 1992 by two New

Jersey State Troopers.18 In a search of the car, the Defendant

Troopers discovered drugs in the hatchback. Gibson was

arrested and charged with various drug-related offenses. He

was tried and convicted in April 1994. Five years after his

conviction, and while serving his prison sentence, Gibson

filed a petition for post-conviction relief in the New Jersey

Superior Court, requesting discovery materials pertaining to

racial profiling. His petition was denied, in part, because he

did not present sufficient evidence to support the racial

profiling claim and/or the probable illegality of his stop and

arrest. In 1999, the New Jersey Attorney General issued an

interim report regarding allegations of racial profiling.

Additionally, in November 2000, new evidence regarding

racial profiling practices in New Jersey was released in

response to the various racial profiling challenges that were

being raised at that time. Eventually, in April 2002, the New

Jersey Attorney General filed a formal motion to vacate the

convictions in 86 cases, including Gibson’s case. The State

determined that the defendants in these cases could make out

a colorable claim of racial profiling. Based on the State’s

motion, Gibson’s conviction was vacated, and all charges

against him were dismissed. Gibson alleges that his

conviction was overturned because the 1992 stop resulted

from unlawful racial profiling and the practice of racial

profiling by the state police had not been disclosed to him.

18

Hereafter referred to as Gibson’s car.

42

On November 14, 2002, more than ten years after his

arrest, Gibson filed a § 1983 complaint claiming, as relevant

here, a violation of his right to be free from unlawful search

and seizure under the Fourth Amendment.

2. Discussion

In Heck, the Supreme Court held that to maintain a

claim for damages for an “allegedly unconstitutional

conviction or imprisonment, or for other harm caused by

actions whose unlawfulness would render a conviction or

sentence invalid, a § 1983 plaintiff must prove that the

conviction or sentence has been reversed on direct appeal,

expunged by executive order, [or] declared invalid by a state

tribunal.” 512 U.S. at 486-87.

Under Heck, § 1983 claims for damages attributable to

an unconstitutional conviction or sentence do not accrue until

the conviction or sentence has been invalidated. Id. at 489-

90. The Supreme Court directs district courts to determine in

each case whether a particular § 1983 claim is deferred under

Heck. Id. at 487 (requiring district courts to “consider

whether a judgment in favor of the plaintiff would necessarily

43

imply the invalidity of his conviction or sentence”). The

Court offered guidance on the question of when a § 1983

claim implies the invalidity of a conviction or a sentence, and

is thus deferred, in two separate footnotes in Heck. In

footnote six, the Court provided an example of when a

defendant’s § 1983 action would implicate the validity of his

conviction. In the example, a person is convicted and

sentenced for resisting arrest, an offense ordinarily requiring

proof that the defendant intentionally prevented an officer

from making a lawful arrest. The defendant then brings a §

1983 action for damages against the officer claiming the

officer arrested him in violation of his Fourth Amendment

right to be free from unreasonable seizures. Because this §

1983 claim would “negate an element of the offense of which

he has been convicted,” id. at 486 n.6, it does not accrue until

the conviction or sentence has been invalidated.

In footnote seven, the Court offered an example of a §

1983 action which, even if successful, would not demonstrate

the invalidity of any outstanding criminal judgment against

the plaintiff, and thus, is not subject to deferral. The Court

explained that a § 1983 action for damages based on an

allegedly unreasonable search would not necessarily imply the

invalidity of the conviction because of doctrines such as

independent source, inevitable discovery, and harmless error.

Id. at 487 n.7. The Court noted that in order for a § 1983

plaintiff to recover compensatory damages, he or she must

prove both that the search was unlawful and that it caused

actual compensable injury that “does not encompass the

44

‘injury’ of being convicted and imprisoned.” Id. (emphasis in

original). The Court emphasized however, that once a

conviction was overturned, being convicted and imprisoned

would qualify as an actionable § 1983 injury. Id.

Our decision in this case rests largely upon how we

interpret footnote seven. At one point, there were two

dominant approaches to the question of whether Fourth

Amendment claims are subject to the Heck deferral rule. E.g.,

Harvey v. Waldron, 210 F.3d 1008, 1015 (9th Cir. 2000)

(noting that “[t]here is a split in the circuits as to how Heck’s

footnote seven should be interpreted.”); Shamaeizadeh v.

Cunigan, 182 F.3d 391, 395 (6th Cir. 1999). Some courts had

interpreted footnote seven as categorically excluding Fourth

Amendment claims from the Heck deferred accrual rule.

Under this approach, Fourth Amendment claims for

unreasonable searches are not deferred under Heck. See, e.g.,

Nieves v. McSweeney, 241 F.3d 46, 52 (1st Cir. 2001)

(holding that claims for false arrest and imprisonment under

§ 1983 accrue at the time of the arrest);19 Copus v. City of

Edgerton, 151 F.3d 646, 648 (7th Cir. 1998) (Fourth

Amendment claims for unlawful searches or arrests can go

19

It is significant to note, however, that the McSweeney

Court acknowledged that “there may be rare and exotic

circumstances in which a § 1983 claim based on a warrantless

arrest will not accrue at the time of the arrest.” McSweeney,

F.3d at 53 n.4.

45

forward because they do not necessarily imply a conviction is

invalid); Simmons v. O’Brien, 77 F.3d 1093, 1095 (8th Cir.

1996) (extending the categorical interpretation of footnote

seven in the Fourth Amendment context “to Fifth Amendment

claims challenging the voluntariness of confessions”); Datz v.

Kilgore, 51 F.3d 252, 253 n.1 (11th Cir. 1995) (Heck does not

defer a § 1983 claim because, even if a search was

unconstitutional, the conviction might still be valid

considering such doctrines as inevitable discovery,

independent source, and harmless error).

In contrast, the majority of Courts of Appeals have

read footnote seven as requiring a fact-based inquiry into

whether a Fourth Amendment claim implies the invalidity of

the underlying conviction. Under the fact-based approach,

Fourth Amendment claims can be brought under § 1983, even

without favorable termination, if the district court determines

that success on the § 1983 claim would not necessarily imply

the invalidity of the conviction. See, e.g., Baranski v. Fifteen

Unknown Agents of the Bureau of Alcohol, Tobacco, and

Firearms, 401 F.3d 419 (6th Cir. 2005) (conducting a fact-

based inquiry as to whether the alleged Fourth Amendment

injuries would necessarily imply the invalidity of the

conviction); Hughes v. Lott, 350 F.3d 1157, 1161 (11th Cir.

2003) (same); Gauger v. Hendle, 349 F.3d 354, 361-62 (7th

Cir. 2003) (same); Covington v. City of New York, 171 F.3d

117, 123 (2d Cir. 1999) (same); Martinez v. City of

Albuquerque, 184 F.3d 1123, 1125 (10th Cir. 1999) (same);

Woods v. Candela, 47 F.3d 545, 546 (2d Cir. 1995) (same);

46

Brooks v. City of Winston-Salem, 85 F.3d 178, 182-83 (4th

Cir. 1996) (same). In situations where the evidence seized as

a result of an unlawful search or arrest was used to convict

the defendant, district courts examine the factual

circumstances to determine whether doctrines such as

independent source, inevitable discovery, or harmless error

would have permitted the introduction of the evidence. See,

e.g., Ballenger v. Owens, 352 F.3d 842, 846-47 (4th Cir.

2003); Hudson v. Hughes, 98 F.3d 868, 872 (5th Cir. 1996).

Where it is impossible or improbable that such doctrines

would have permitted the introduction of the evidence at

issue in the criminal proceedings, the courts toll the statute of

limitations as to the § 1983 claims until such time as the

plaintiff’s criminal proceedings have been resolved in his or

her favor. See also, e.g., Baranski, 401 F.3d at 434; Wiley v.

City of Chicago, 361 F.3d 994, 997 (7th Cir. 2004); Hughes,

350 F.3d at 1161 (examining circumstances of case to

determine whether § 1983 action for unlawful search

necessarily implied invalidity of conviction); Covington, 171

F.3d at 123 (noting that tolling rule differs in cases where

conviction could be obtained from independent, untainted

evidence, as opposed to cases where the evidence derived

solely from unlawful arrest).

We note that the general trend among the Courts of

Appeals has been to employ the fact-based approach. Indeed,

even those Courts of Appeals which had interpreted footnote

seven as categorically excluding Fourth Amendment claims

from the Heck deferred accrual rule have utilized a fact-based

47

approach in some recent cases. Compare Copus, 151 F.3d at

648 with Gauger, 349 F.3d at 361 and Wiley, 361 F.3d at 997

(Seventh Circuit); compare Datz v. Kilgore, 51 F.3d at 253

n.1 with Hughes, 350 F.3d at 1161 (Eleventh Circuit);

compare Simmons, 77 F.3d at 1095 with Anderson v.

Franklin County, Mo., 192 F.3d 1125, 1131 (8th Cir. 1999)

(Eighth Circuit).

Irrespective of the general trend, in our view, the better

reading of footnote seven is one that requires a fact-based

inquiry. Accordingly, in those cases in which a district court

determines that success on the § 1983 claim would imply the

invalidity of the conviction, the cause of action is deferred

until the conviction is overturned. Both the letter and spirit of

Heck supports this conclusion. Footnote seven of Heck

clearly states that an action may lie with respect to an

unreasonable search, not that it shall or will lie. 512 U.S. at

487 n.7. The use of the permissive word “may” endorses the

use of a fact-based approach because it precludes the

automatic exemption of all Fourth Amendment claims from

the Heck deferred accrual rule. See John S. Buford, Note,

When the Heck Does This Claim Accrue? Heck v.

Humphrey’s Footnote Seven and § 1983 Damages Suits for

Illegal Search and Seizure, 58 Wash. & Lee L. Rev. 1493,

1533 (2001); Paul D. Vink, Note, The Emergence of

Divergence: The Federal Courts’ Struggle to Apply Heck v.

Humphrey to § 1983 Claims for Illegal Searches, 35 Ind. L.

Rev. 1085, 1106-07 (2002). Moreover, the policies cited in

the Heck decision itself, which provide the proper context

48

within which to interpret footnote seven, lend additional

support for the case-by-case approach. In rendering its

decision, the Court noted that it “has long expressed . . .

concerns for finality and consistency and has generally

declined to expand opportunities for collateral attack.” Heck,

512 U.S. at 484-85. The case-by-case approach actually best

honors these values by identifying all those § 1983 challenges

which, if successful, would imply the invalidity of existing

convictions. See Buford, supra, at 1533-34; Vink, supra, at

1106.

Our colleague in dissent reaches a different conclusion

based on Montgomery v. De Simone, 159 F.3d 120 (3d Cir.

1998), which considered whether the plaintiff’s false arrest

and imprisonment claims accrued on the day of the arrest or

on the day of favorable disposition of the conviction. Plaintiff

Rosemary Montgomery was arrested in September 1992 and

charged with speeding, drunk driving, and refusing to take a

breathalyzer test, id. at 122. She was found guilty of these

charges and subsequently appealed her conviction. At a trial

de novo in the Superior Court of New Jersey, in February

1994, she was acquitted of all charges. A year later, she filed

a § 1983 suit in federal court claiming malicious prosecution,

false arrest, and false imprisonment relating to the September

1992 traffic stop. The District Court entered summary

judgment for the defendants, and Montgomery appealed. On

appeal, we held that the two-year limitations period for the

false arrest and false imprisonment claims began to run on the

night of her arrest, and thus these claims were time-barred. In

49

discussing whether her cause of action arose when she was

arrested in 1992 or when she was acquitted in 1994, we

reasoned as follows:

Montgomery argues that under [Heck] these claims

only accrued after her criminal charges were resolved

in her favor. In Heck, the Court held that a § 1983

claim for damages attributable to an unconstitutional

conviction or sentence does not accrue until that

conviction or sentence has been invalidated. Heck,

512 U.S. at 489-90. The Court also noted, however,

that if a successful claim would not demonstrate the

invalidity of any outstanding criminal judgment, it

should be allowed to proceed. Id. at 487. Because a

conviction and sentence may be upheld even in the

absence of probable cause for the initial stop and

arrest, we find that Montgomery’s claims for false

arrest and false imprisonment are not the type of

claims contemplated by the Court in Heck which

necessarily implicate the validity of a conviction or

sentence. See Mackey v. Dickson, 47 F.3d 744, 746

(5th Cir. 1995) (stating that “it is well established

that a claim of unlawful arrest, standing alone, does

not necessarily implicate the validity of a criminal

prosecution following the arrest.”). Accordingly, we

read Heck to be consistent with our determination

that Montgomery’s false arrest and false

imprisonment claims accrued on the night of her

arrest.

50

Id. at 126 n.5.

Our analysis of Gibson’s claims differs from that of

our colleague’s because we read Montgomery differently. We

do not dispute that, consistent with Heck, in some cases

Fourth Amendment claims for false arrest begin to accrue at

the time of arrest, not when the conviction is overturned. This

occurs when a false arrest claim will not necessarily

undermine a conviction or sentence. Thus, in Montgomery,

we held that the plaintiff’s false arrest claim was not deferred

under Heck because the validity of her conviction did not

depend upon probable cause for the stop. The evidence

against Montgomery included the officer’s testimony

concerning her driving, and a radar measurement of her

speed, neither of which was obtained as a result of the

unlawful stop. Moreover, Montgomery refused to take the

breathalyzer test which, under New Jersey law, gave rise to

one of the charges on which she was convicted. Thus, in

Montgomery, the plaintiff’s § 1983 claim did not necessarily

imply the invalidity of her conviction.

While it is true that some Fourth Amendment claims

are not subject to deferral under Heck, we conclude that Heck

does not set forth a categorical rule that all Fourth

Amendment claims accrue at the time of the violation. This

Court’s determination that the plaintiff’s false arrest claim in

Montgomery qualified as an exception to the Heck deferral

51

rule, and thus accrued on the night of the arrest, does not

mandate a blanket rule that all false arrest claims accrue at the

time of the arrest.

Our dissenting colleague reasons that we are precluded

from engaging in a fact-based inquiry as to the applicability of

the Heck deferral rule because the Montgomery Court elected

not to do so. We disagree with this interpretation. As we

discussed above, the Montgomery Court considered, albeit

briefly, the charges brought against Montgomery and the

existing evidence supporting those charges. Based on its

analysis, the Court reasoned that Montgomery’s conviction

could be upheld based on evidence obtained independently

from the initial stop and arrest. Montgomery did not rule out

a factual analysis of the evidence and it does not preclude us

from applying the case-by-case approach here.

Our dissenting colleague criticizes the fact-based

approach because it would involve district courts in “difficult

questions about what might have happened in lower court

criminal proceedings,” (Dissenting Op. at n.10), thereby

violating Heck’s rule against questioning the validity of

underlying criminal convictions. While our colleague is

correct that the fact-based approach requires a district court to

inquire into the nature of the criminal conviction and the

antecedent proceedings, our approach does not in any way

place the district court in the position of questioning the

validity of that conviction. To the contrary, under Heck, a

district court is required only to make a threshold

52

determination as to whether a plaintiff’s § 1983 claim, if

successful, would have the hypothetical effect of rendering

the criminal conviction or sentence invalid. If this threshold

is satisfied, the district court’s analysis is at an end, and the

Heck deferred accrual rule is triggered. This approach is

consistent with the dictates of Heck, and has been adopted by

the majority of our sister circuits. See e.g., Baranski, 401

F.3d at 419; Wiley, 361 F.3d at 997; Ballenger, 352 F.3d at

846-47; Hughes, 350 F.3d at 1161; Covington, 171 F.3d at

122.

In this case, Gibson was arrested for drug-related

offenses after his car was stopped and searched in October

1992. His conviction was overturned in April 2002. Gibson’s

primary claims are that he was falsely arrested and falsely

imprisoned in violation of the Fourth and Fourteenth

Amendments.

Under New Jersey law, “[f]alse arrest or false

imprisonment is the constraint of the person without legal

justification.” Fleming v. United Parcel Serv., Inc., 604 A.2d

657, 680 (N.J. Super. Ct. Law Div. 1992), aff’d per curiam,

642 A.2d 1029 (N.J. Super. Ct. App. Div. 1994) (citing Pine

v. Okzewski, 170 A. 825, 826 (N.J. 1934)). The tort of false

arrest consists of: (1) an arrest or detention of the person

against his will; (2) which is done without proper legal

authority or legal justification. See id. If a judgment for

53

Gibson on his false arrest claim “would necessarily imply the

invalidity of his conviction,” Gibson would be barred from

bringing his cause of action until his conviction was

overturned in April of 2002. Heck 512 at 487. To prevail on

his § 1983 claim for false arrest and imprisonment, Gibson

would have to demonstrate that his arrest was without legal

justification.

Viewing the evidence in the light most favorable to

Gibson, his car was stopped because of a pattern and practice

of racial profiling, not because police had reasonable

suspicion to believe a crime was being committed. Generally,

the absence of reasonable suspicion renders a stop unlawful,

see Alabama v. White, 496 U.S. 325, 329-30 (1990), and

evidence obtained from that unlawful stop excludable, see

Wong Sun v. United States, 371 U.S. 471, 487-88 (1963).

Gibson was arrested when the Defendant Troopers discovered

drugs during the subsequent search of the car. These drugs

were the only evidence supporting the drug charges against

Gibson. Thus, success on his § 1983 claim for false arrest

would “necessarily imply” that he was improperly convicted.

As other courts have recognized, situations such as Gibson’s –

where the only evidence supporting the conviction is tainted

by a possible constitutional violation that is the subject of a

§ 1983 action – are perhaps the quintessential example of

when the Heck deferred accrual rule is triggered. E.g.,

Covington, 171 F.3d at 123 (“On the other hand, in a case

where the only evidence for conviction was obtained pursuant

to an arrest, recovery in a civil case based on false arrest

54

would necessarily impugn any conviction resulting from the

use of that evidence.”) (emphasis in original).20 Gibson is not

seeking damages for physical injury, injury to reputation or

seizure of property resulting from the improper search. His

alleged injury was based on evidence derived from an

improper stop. In other words, his actual, compensable injury

was “the ‘injury’ of being convicted and imprisoned,” which

was not actionable until the conviction was overturned. Heck,

512 U.S. at 487 n.7.

Therefore, under Heck, Gibson’s Fourth Amendment

claims were not cognizable and did not accrue until his

conviction was invalidated in April 2002. Thus, these claims,

when filed in November 2002, were raised well within the

20

In dissent, our colleague states that even under a fact-

based approach, he still could not conclude that the exclusion of

the evidence in this matter would necessarily have invalidated

Gibson’s underlying state criminal conviction. (Dissenting Op.

at n.10) (“We cannot say what other evidence of guilt may have

been present or whether there may have been a valid reason for

stopping the vehicle other than race.”). But the record belies

that concern, as it is clear that the only evidence supporting the

criminal conviction was obtained as a result of the unlawful stop

based on racial profiling and there is nothing in the record

indicating that an exception to the exclusionary rule would

apply. Indeed, counsel for the defendants conceded as much

during the oral arguments before us.

55

two-year statute of limitations.21 We thus reverse with respect

to this issue.

21

As an aside, even if Gibson’s claim had accrued in 1992,

his cause of action may also be subject to tolling under New

Jersey law on equitable grounds. A New Jersey State Court had

already determined in 1994 that he did not have sufficient

evidence to support a claim of racial profiling. Sufficient

evidence came when the New Jersey Attorney General proposed

dismissal of 86 cases tainted by racial profiling. We need not

decide this issue, however, as Gibson’s case comes within the

scope of Heck’s deferral rule. Id. at 489-90.

56