Opposition Brief — Eric Lund, Petitioner v. Jeffrey Datzman, et al.

No. 21-1179

In the Supreme Court of the United States

ERIC LUND,

Petitioner,

v.

JEFFREY DATZMAN, et al.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

STATE RESPONDENTS’ BRIEF IN OPPOSITION

May 26, 2022

ROB BONTA

Attorney General of California

MICHAEL J. MONGAN

Solicitor General

JOSHUA A. KLEIN*

Deputy Solicitor General

FIEL D. TIGNO

Supervising Deputy

Attorney General

CHRISTOPHER D. BEATTY

Deputy Attorney General

STATE OF CALIFORNIA

DEPARTMENT OF JUSTICE

1515 Clay Street, 20th Floor

P.O. Box 70550

Oakland, CA 94612-0550

(510) 879-0756

Joshua.Klein@doj.ca.gov

*Counsel of Record

i

QUESTION PRESENTED

Under Heck v. Humphrey, 512 U.S. 477 (1994), a

person who has been convicted of a crime may not

bring a civil claim under 42 U.S.C. § 1983 if that claim

would necessarily “imply” the incorrectness of the conviction, unless that conviction has been invalidated

through a means such as appellate reversal, habeas

corpus, or executive clemency. Id. at 486-487. In this

case, petitioner Eric Lund was convicted of possession

of child pornography. His conviction was affirmed on

direct appeal. Without waiting for his habeas corpus

challenges to conclude, petitioner sought immediate

adjudication of a 73-claim lawsuit, including a claim

under Section 1983 alleging the unconstitutionality of

the warrant and the resulting search that recovered

the evidence forming the basis of his conviction. Petitioner seeks damages based on that alleged Fourth

Amendment violation, but disclaims damages for the

consequent prosecution and punishment. The question presented is:

Whether that type of claim is categorically exempt

from the Heck bar.

ii

TABLE OF CONTENTS

Page

Statement .................................................................... 1

Argument ..................................................................... 9

Conclusion .................................................................. 25

iii

TABLE OF AUTHORITIES

Page

CASES

Allen v. McCurry

449 U.S. 90 (1980) ................................................ 24

Anderson v. Franklin Cnty.

192 F.3d 1125 (8th Cir. 1999) .............................. 16

Ballenger v. Owens

352 F.3d 842 (4th Cir. 2003) ................................ 12

Baxter v. Crawford

233 F. App’x 912 (11th Cir. 2007) ........................ 18

Beck v. City of Muskogee Police Dep’t

195 F.3d 553 (10th Cir. 1999) .............................. 16

Booker v. Ward

94 F.3d 1052 (7th Cir. 1996) ................................ 13

Brady v. Maryland

373 U.S. 83 (1963) .................................................. 5

Brown v. Davenport

142 S. Ct. 1510 (2022) .......................................... 20

Copus v. City of Edgerton

151 F.3d 646 (7th Cir. 1998) ................................ 13

Covington v. City of New York

171 F.3d 117 (2d Cir. 1999).................................. 12

iv

TABLE OF AUTHORITIES

(continued)

Page

Datz v. Kilgore

51 F.3d 252 (11th Cir. 1995) .......................... 17, 18

Dyer v. Lee

488 F.3d 876 (11th Cir. 2007) .............................. 18

Franks v. Delaware

438 U.S. 154 (1978) ................................................ 3

Garza v. Burnett

672 F.3d 1217 (10th Cir. 2012) ............................ 17

Gauger v. Hendle

349 F.3d 354 (7th Cir. 2003) .......................... 13, 14

Harrigan v. Metro Dade Police Dep’t

977 F.3d 1185 (11th Cir. 2020) ...................... 18, 19

Harvey v. Waldron

210 F.3d 1008 (9th Cir. 2000) .............................. 12

Heck v. Humphrey

512 U.S. 477 (1994) ...................................... passim

Hudson v. Hughes

98 F.3d 868 (5th Cir. 1996) .................................. 12

Hughes v. Lott

350 F.3d 1157 (11th Cir. 2003) ............................ 18

In re Ruedas

23 Cal. App. 5th 777 (2018) ................................... 4

v

TABLE OF AUTHORITIES

(continued)

Page

McCann v. Neilsen

466 F.3d 619 (7th Cir. 2006) ................................ 15

Moore v. Sims

200 F.3d 1170 (8th Cir. 2000) .............................. 15

Mordi v. Zeigler

870 F.3d 703 (7th Cir. 2017) .......................... 14, 15

Muhammad v. Close

540 U.S. 749 (2004) ........................................ 21, 23

Nelson v. Campbell

541 U.S. 637 (2004) ........................................ 22, 23

Okoro v. Bohman

164 F.3d 1059 (7th Cir. 1999) .............................. 14

Okoro v. Callaghan

324 F.3d 488 (7th Cir. 2003) ................................ 14

People v. Lund

64 Cal. App. 5th 1119 (2021) ..................... 1, 2, 3, 4

Preiser v. Rodriguez

411 U.S. 475 (1973) .............................................. 22

Schilling v. White

58 F.3d 1081 (6th Cir. 1995) ................................ 12

Schmidlin v. City of Palo Alto

157 Cal. App. 4th 728 (2007) ............................... 25

vi

TABLE OF AUTHORITIES

(continued)

Page

Shultz v. Buchanan

829 F.3d 943 (8th Cir. 2016) ................................ 16

Strepka v. Thompson

831 F. App’x 906 (10th Cir. 2020) ........................ 17

Szajer v. City of Los Angeles

565 U.S. 817 (2011) .............................................. 10

Szajer v. City of Los Angeles

632 F.3d 607 (9th Cir. 2011) ............................ 8, 11

Verniero v. Gibson

547 U.S. 1035 (2006) ............................................ 10

Wallace v. City of Chicago

440 F.3d 421 (7th Cir. 2006) .................... 12, 13, 14

Wallace v. Kato

549 U.S. 384 (2007) ............................ 12, 13, 23, 24

Washington v. Los Angeles Cnty.

Sheriff’s Dep’t

833 F.3d 1048 (9th Cir. 2016) .............................. 11

Washington v. Summerville

523 U.S. 1073 (1998) ............................................ 10

Whitaker v. Garcetti

486 F.3d 572 (9th Cir. 2007) .................................. 8

vii

TABLE OF AUTHORITIES

(continued)

Page

Whitmore v. Harrington

204 F.3d 784 (8th Cir. 2000) ................................ 15

Winstead v. Johnson

139 S. Ct. 2776 (2019) .......................................... 10

Yount v. City of Sacramento

43 Cal. 4th 885 (2008) ........................................ 7, 8

STATUTES

42 U.S.C. § 1983 ................................................ passim

CONSTITUTIONAL PROVISIONS

U.S. Const., amend. IV ...................................... passim

U.S. Const., amend. V ................................................. 4

U.S. Const., amend. VI ................................................ 4

U.S. Const., amend. XIV ............................................. 4

1

STATEMENT

Petitioner Eric Lund was convicted in state court

of possessing child pornography. See generally People

v. Lund, 64 Cal. App. 5th 1119 (2021). His habeas corpus challenges to that conviction have not yet concluded. See infra pp. 5-6. He brought this civil case

under 42 U.S.C. § 1983 to challenge the constitutionality of the investigation that led to his conviction, as

well as conduct by police and prosecutors during those

proceedings and consequences that the investigation

and conviction had on his employment and benefits.

Although lower court proceedings remain pending

with respect to most of the claims in his lengthy complaint, he seeks this Court’s review of one aspect of the

decision below.

1. Petitioner was a patrol officer with the California Highway Patrol (CHP). Pet. App. 11a. In 2014,

another law enforcement agency detected a pattern of

suspected child pornography files being offered to internet users late at night, via the internet platform

eDonkey and a program called eMule. See Second Am.

Compl., D.C. Dkt. 43, at 66, 525 (SAC); Lund, 64 Cal.

App. 5th at 1124-1126. Although internet data

showed that the files were being offered from one particular computer, the computer was using several WiFi connections around the Northern California city of

Vacaville. See Lund, 64 Cal. App. 5th at 1126-1127.

Authorities obtained a succession of warrants, culminating in “Warrant E.” Pet. 7. That warrant and

the underlying affidavit, which are discussed throughout petitioner’s complaint, are in the record of the

trial- and appellate-court proceedings in which petitioner challenged the warrant’s constitutionality and

sought before trial to exclude evidence and have his

criminal case dismissed. See Appendix to Petition for

2

Writ of Mandate and Prohibition, Lund v. Superior

Court, No. A149460 (Cal. Ct. App., 1st Dist.) (Lund

Mand. Pet. App.), at 244-294.

The affidavit was signed by respondent Detective

Jeffrey Datzman, of the Vacaville Police Department.

SAC ¶ 53; Lund Mand. Pet. App. 249. It included information on the correspondence between the timing

of the distribution of suspected child pornography

from the offering computer and petitioner’s Wednesday-through-Sunday overnight shifts. Lund Mand.

Pet. App. 261, 264-265. One Wi-Fi connection that

was frequently used by the offering computer was a

Vacaville yogurt shop, where Datzman set up afterhours surveillance and monitored the shop’s Wi-Fi

from inside. Id. at 262-264. When Datzman saw that

a computer was connected to the Wi-Fi source, he arranged for a Vacaville police officer to drive by the

shop. Id. That officer saw petitioner sitting in his

CHP cruiser in the shop’s parking lot. Id.

Datzman’s affidavit also included information

about GPS trackers that, pursuant to a separate warrant, were placed on two CHP cars that petitioner

used for his patrols. Lund Mand. Pet. App. 265-267.

After the computer that Datzman was investigating

offered child-pornography one night via a particular

public Wi-Fi source, Datzman confirmed from the GPS

data that one of those patrol cars was near the Wi-Fi

source at the time in question. Id. Petitioner’s superior confirmed to Datzman that petitioner had been

patrolling in that car the same night. Id.; SAC ¶¶ 238243.

After obtaining Warrant E, law enforcement officials searched petitioner’s car. SAC ¶¶ 53-55. They

found two external hard drives containing child pornography in the trunk. Id. ¶ 56; see Lund, 64 Cal. App.

3

5th at 1128. They also found an external hard drive

containing the same version of the eMule program

that had previously been detected offering child pornography through the public Wi-Fi sources; a USB WiFi adapter with an identifier matching what Datzman

had detected from the yogurt shop; and computer records indicating that the eMule program had been connecting to the Wi-Fi router in the yogurt shop on the

night of that surveillance. Lund, 64 Cal. App. 5th

1128-1129.1

2. Prosecutors charged petitioner with possession

of more than 600 images of child pornography. Lund

Mand. Pet. App. 1-2. “Pretrial litigation relating to

the constitutionality of the searches stretched over the

course of several years,” including proceedings at the

trial and appellate level. Lund, 64 Cal. App. 5th at

1129. Petitioner challenged Warrant E’s constitutionality, and also sought an evidentiary hearing under

Franks v. Delaware, 438 U.S. 154 (1978), asserting

that Datzman’s affidavit contained misstatements

and omissions that violated the Fourth Amendment.

See Lund Mand. Pet. App. 4-294, 440-467 (suppression

motion and reply); id. at 295-355, 415-439 (Franks motion and reply).

After hearing testimony, the trial court denied petitioner’s challenges. See generally Lund Mand. Pet.

App. 468-807. The court concluded that “there wasn’t

a misrepresentation,” and that there was not “a material omission or something that was irresponsibly

1 Other evidence in petitioner’s desk connected him to the devices

found in his car. Lund, 64 Cal. App. 5th at 1129.

4

done by Detective Datzman.” Id. at 753-754.2 Petitioner raised his Fourth Amendment challenges to

Warrant E again in a motion to set aside the prosecution. See id. at 810-848, 869-892 (petitioner’s motion

and reply). The trial court again denied the motion.

See id. at 917 (court’s conclusion that petitioner had

not shown “deliberate or reckless statements or omissions” in the affidavit). Petitioner sought to have the

trial court decisions overturned by petitioning for

writs of mandate and prohibition from the court of appeal, which denied his petition. See Lund v. Superior

Court, No. A149460 (Dec. 8, 2016). Petitioner’s criminal trial then proceeded. Although the jury in the initial trial hung 11-1 in favor of conviction, the jury in

the retrial convicted petitioner.3 The trial court sentenced him to five years in prison. Pet. App. 12a.

On direct appeal, the state court of appeal affirmed,

Lund, 64 Cal. App. 5th at 1124, and the California Supreme Court denied a petition for review, People v.

Lund, No. S269625 (Cal. Sup. Ct. Aug. 18, 2021). The

criminal judgment became final under California law

in November 2021, when the time for filing a petition

for a writ of certiorari in this Court expired. See In re

Ruedas, 23 Cal. App. 5th 777, 785 (2018).

3. Petitioner is challenging his conviction in state

and federal habeas corpus proceedings that have yet

to conclude. The Fifth, Sixth, and Fourteenth Amend-

2 See also Lund Mand. Pet. App. 755-756 (stating, with respect to

the “multitude” of arguments by petitioner in his “very thorough

briefing,” that the court had “read and considered each of those

and I am denying the motion to quash”).

3 See SAC ¶ 61-62; People v. Lund, No. A157205 (Cal. Ct. App.,

1st Dist.), 10 Rep.’s Tr. 390.

5

ment grounds that petitioner is raising in those proceedings overlap with the Fourth Amendment allegations at issue in this petition.

Petitioner’s initial state habeas petition alleged

that his criminal conviction should be overturned under Brady v. Maryland, 373 U.S. 83 (1963), because

the prosecution failed to disclose that Officer Johnson,

who saw petitioner at the yogurt shop during

Datzman’s surveillance, did not recall noticing a laptop in petitioner’s car. See Pet. for Writ of Habeas Corpus, In re Lund, No. A161768, at pp. 36-37, 40-56 (Cal.

Ct. App., 1st. Dist.). Petitioner’s Fourth Amendment

contention in this Court is that the same information

should have been disclosed in Detective Datzman’s affidavit seeking Warrant E. See Pet. 10; SAC ¶¶ 219224. The state court of appeal rejected petitioner’s habeas petition, and the California Supreme Court denied review. Pet. 8; see In re Lund, No. A161768 (Cal.

Ct. App., 1st Dist. June 1, 2021); In re Lund, No.

S269624 (Cal. Sup. Ct. Aug. 11, 2021).

In October 2021, petitioner filed a federal habeas

petition. Lund v. Locatelli, No. 21-cv-1831 (E.D. Cal.).

That petition raises the same Brady claim about Officer Johnson’s observations at the yogurt shop that

was rejected in the state habeas proceeding. See id.

Dkt. 1 at 7-9 (Fed. Habeas Pet.). It also raises additional claims that are not based in the Fourth Amendment, but that rest on essentially the same allegations

as those advanced in this petition for a writ of certiorari.4 Petitioner has moved to stay the federal habeas

4 For

instance, petitioner’s assertions about Datzman possibly

seeing a CHP device in his car at the yogurt shop, and about camera footage showing other cars in the vicinity, Pet. 10, are the

basis of his Fourth Amendment claims here, and his claims of

6

case in order to exhaust those additional claims in

state court. Id. Dkt. 3. That motion remains pending,

so it is unclear if and when petitioner’s state habeas

proceedings will resume.

4. This petition for a writ of certiorari arises from

a civil complaint that petitioner filed in the Eastern

District of California after the jury verdict in his criminal case but before that verdict became final on direct

appeal.

a. The operative complaint spans 157 pages (not

counting exhibits) and 1,087 paragraphs. See SAC. It

alleges 73 federal and state claims against 31 named

and 40 unnamed defendants. Id.

Petitioners’ arguments in this Court focus on allegations that law enforcement officers violated the

Fourth Amendment in obtaining Warrant E. Pet. 7-8;

see SAC ¶¶ 66-309. Petitioner alleges that Detective

Datzman’s affidavit, which was used to obtain that

warrant, omitted information that “undermined the

probable cause and deprived [petitioner] of the opportunity to challenge the lawfulness of the investigation”

in his criminal case. SAC ¶ 145. For instance, petitioner alleges that the affidavit should have disclosed

that internet protocol records for some transactions

were reported to be from places beyond petitioner’s patrol area, id. ¶¶ 166-179, and that the surveillance tool

ineffective assistance and prosecutorial misconduct in his federal

habeas petition. Compare SAC ¶¶ 196-205, with Fed. Habeas

Pet. 33-34. Petitioner’s allegations here about IP addresses

matching “locations where [petitioner] could not have been,” and

about Datzman’s allegedly improper conclusion that petitioner

had used a car tracked by GPS, Pet. 10-11, similarly underlie ineffective assistance and prosecutorial misconduct claims in his

habeas petition. Compare SAC ¶¶ 166-179, 238-252, with Fed.

Habeas Pet. 16-17, 34-35, 51 & Ex. 3 at 17.

7

the police used to detect the transactions does not detect all activity from a given computer, id. ¶¶ 180-186;

see also id. ¶¶ 126-139 (alleging that Datzman’s affidavit covered up that the “true source” of initial information about the child pornography transactions at

issue was “secret intelligence”).

With respect to the yogurt shop, petitioner alleges

Datzman should have informed the magistrate that

the other law enforcement witness at the scene did not

specifically notice a laptop in petitioner’s car, SAC

¶¶ 219-224, that a glowing screen that Datzman saw

in petitioner’s car could have been a CHP device rather than a separate laptop, id. ¶¶ 203-205, that

Datzman was friendly with the yogurt shop owners, id.

¶¶ 187-190, and that other cars were present near the

yogurt shop that night, id. ¶¶ 196-202, 214-218.

b. The district court dismissed each of petitioner’s

73 claims. Pet. App. 9a-22a; C.A. E.R. 3-8. It determined that the 17 federal claims under Section 1983

were “inextricably linked to Mr. Lund’s conviction”

and “necessarily imply the invalidity of his conviction.”

Pet. App. 15a. Because the conviction had not been

set aside by appeal, collateral review, or executive action, the district court dismissed those claims under

Heck v. Humphrey, 512 U.S. 477 (1994). Pet. App. 14a15a. It dismissed 56 state-law claims under a similar

state doctrine. See id. at 16a-18a (citing Yount v. City

of Sacramento, 43 Cal. 4th 885 (2008)). The court

ruled, as an alternative basis, that three claims were

barred by various immunities. Id. at 18a-21a. Petitioner’s claim for tortious interference was dismissed

against two defendants but not two others, id. at 21a22a; but the court declined to exercise supplemental

jurisdiction over the surviving portion of that claim

once no federal claims remained, C.A. E.R. 7-8.

8

c. The court of appeals affirmed in part and vacated in part, in an unpublished memorandum opinion.

Pet. App. 1a-8a. The court affirmed with respect to

eight claims (Claims 1-5, 37, 38, and 43), reasoning

that dismissal under Heck and Yount was proper. Id.

at 3a-4a. Claims 1 through 5 “attack the probable

cause basis for the search warrant that uncovered the

child pornography for which Mr. Lund was convicted.”

Id. at 3a. Those claims, the court concluded, could not

be brought unless petitioner’s criminal conviction is in

some way invalidated. Id. The court rejected petitioner’s argument that Section 1983 claims predicated

on Fourth Amendment violations are categorically excluded from the Heck bar, citing precedent requiring a

case-specific analysis of potential inconsistency between a Fourth Amendment claim and a particular

criminal conviction. Id. at 3a (citing Szajer v. City of

Los Angeles, 632 F.3d 607, 611 (9th Cir. 2011), and

Whitaker v. Garcetti, 486 F.3d 572, 583-584 (9th Cir.

2007)). But the court ordered that the judgment be

amended to reflect that those claims were dismissed

without prejudice to refiling should petitioner’s conviction be invalidated in the future. Id. at 4a.

With respect to 58 claims, the court of appeals vacated the district court’s dismissals. Pet. App. 5a (vacating dismissal of Claims 6-35, 39-42, 44-59, 65-67,

and 69-73). The court of appeals reasoned that “Heck

does not automatically bar a claim simply because the

claim relates to events that predate [a] conviction.” Id.

at 4a. Rather, “to trigger the Heck/Yount bar, the

claim must be fundamentally inconsistent with [the]

conviction.” Id. The court remanded those claims for

“the district court to determine in the first instance

whether each individual claim necessarily implies the

9

invalidity of [petitioner’s] conviction or warrants dismissal on other grounds.” Id. at 4a-5a.5

Petitioner sought rehearing en banc, but the court

of appeals denied that petition without dissent and

without any judge requesting a vote. Pet. App. 24a.

The remanded claims remain pending at the district

court, where proceedings are currently stayed pending

this Court’s disposition of this petition.

ARGUMENT

Petitioner contends that this Court’s review is warranted to consider a “deep” five-to-four circuit conflict

(Pet. 13) over whether the bar to Section 1983 claims

adopted by this Court in Heck v. Humphrey, 512 U.S.

477 (1994), is categorically inapplicable to claims alleging an unconstitutional search or seizure. In fact,

at most one circuit has endorsed a categorical rule—

and that circuit’s rule contains an exception that

would likely cause a complaint with allegations like

petitioner’s to be dismissed nonetheless. The decision

below, which calls for a case-specific analysis of individual claims, aligns with the precedent of every other

circuit that has addressed the question. The case-specific approach is also consistent with Heck and subsequent decisions from this Court. Moreover, this Court

has repeatedly denied petitions raising the identical

question. There is no reason for a different outcome

here; indeed, this case would make a particularly poor

vehicle for considering this question.

1. Petitioner principally contends that certiorari is

needed to settle a “deep and acknowledged conflict

among the courts of appeals.” Pet. 13. Closer scrutiny

5 The court also vacated or affirmed the dismissal of various other

claims for reasons not relevant here. Pet. App. 5a-6a.

10

reveals that the conflict is not nearly as deep as petitioner contends. The clear trend among the circuits is

to follow a fact-based approach consistent with what

the Ninth Circuit did here. Only the Seventh Circuit

appears to have endorsed a categorical rule; and other

precedents of that court would likely cause it to apply

the Heck bar in this case in any event given the specific allegations in petitioner’s complaint. Moreover,

this Court has repeatedly denied certiorari when faced

with petitions raising the same asserted conflict. See,

e.g., Winstead v. Johnson, 139 S. Ct. 2776 (2019) (No.

18-1013); Szajer v. City of Los Angeles, 565 U.S. 817

(2011) (No. 10-1343); Verniero v. Gibson, 547 U.S.

1035 (2006) (No. 05-779); Washington v. Summerville,

523 U.S. 1073 (1998) (No. 97-1324).

a. The decision below applied Ninth Circuit precedent construing Heck. Based on concerns for “finality

and consistency,” and the principle that “civil tort actions are not appropriate vehicles for challenging the

validity of outstanding criminal judgments,” Heck imposed limitations on Section 1983 damages claims

that relate to a criminal case. 512 U.S. at 485-486. In

particular, “in order 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.” Id. at 486-487 (emphasis added) (footnote omitted).

11

Under Heck, a claim “bearing that relationship to

a conviction or sentence that has not been so invalidated is not cognizable under § 1983.” 512 U.S. at 487.

In contrast, “if the district court determines that the

plaintiff ’s action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be

allowed to proceed, in the absence of some other bar to

the suit.” Id. (footnotes omitted). The Court noted, as

one example, that “a suit for damages attributable to

an allegedly unreasonable search may lie”—because of

“doctrines like independent source and inevitable discovery, and especially harmless error,” under which “a

§ 1983 action, even if successful, would not necessarily

imply that the plaintiff ’s conviction was unlawful.” Id.

at 487 n.7 (first emphasis added) (citations omitted);

see id. (noting, however, that such a suit still cannot

be premised on the “‘injury’ of being convicted and imprisoned”).

In the wake of Heck, the Ninth Circuit held that

Fourth Amendment claims are not categorically exempt from the Heck bar merely because the plaintiff

seeks damages only for the allegedly improper search

or seizure itself rather than for the consequent conviction and imprisonment. See generally Szajer v. City of

Los Angeles, 632 F.3d 607, 611 (9th Cir. 2011), cert.

denied, 565 U.S. 817 (2011). Instead, the Ninth Circuit construed Heck to require a favorable termination

of the criminal case before the Section 1983 claim may

proceed if, under the particular circumstances of the

case, the defendant invoking Heck demonstrates that

success on the Fourth Amendment claim would imply

the invalidity of the conviction. Id.; see Washington v.

Los Angeles Cnty. Sheriff ’s Dep’t, 833 F.3d 1048, 1056

n.5 (9th Cir. 2016).

12

In adopting that rule, the Ninth Circuit reasoned

that its interpretation of Heck “will avoid the potential

for inconsistent determinations on the legality of a

search and seizure in the civil and criminal cases and

will therefore fulfill the Heck Court’s objectives of preserving consistency and finality, and preventing ‘a collateral attack on [a] conviction through the vehicle of

a civil suit.’” Harvey v. Waldron, 210 F.3d 1008, 1015

(9th Cir. 2000) (quoting Heck, 512 U.S. at 484-485),

overruled in part on other grounds by Wallace v. Kato,

549 U.S. 384, 393-394 (2007).

As petitioner acknowledges (Pet. 20-22), the Second, Fourth, Fifth, and Sixth Circuits have similarly

concluded that the application of Heck in this context

requires consideration of the factual circumstances of

a particular case. See, e.g., Covington v. City of New

York, 171 F.3d 117, 122-124 (2d Cir. 1999); Ballenger

v. Owens, 352 F.3d 842, 845-847 (4th Cir. 2003); Hudson v. Hughes, 98 F.3d 868, 872 (5th Cir. 1996); Schilling v. White, 58 F.3d 1081, 1085-1087 (6th Cir. 1995).

b. Petitioner asserts that “four circuits hold that

the Heck bar is categorically inapplicable in this context without regard to the factual record,” Pet. 13 (capitalization omitted), and that those circuits “would not

have dismissed [his] claim,” id. at 2. That assertion

substantially overstates the degree of any conflict and

misunderstands the state of the law in those circuits.

i. It is true that some Seventh Circuit decisions endorse a categorical approach. Although earlier circuit

precedents were contradictory, the court attempted to

clarify its position in Wallace v. City of Chicago, 440

F.3d 421 (7th Cir. 2006). 6 In that case, years after

6 Before

that, one line of Seventh Circuit cases opined that

13

Wallace was convicted of murder, an appellate court

reversed his conviction on the ground that his arrest

was without probable cause and the consequent confession therefore should not have been admitted at

trial. Id. at 423-424. Wallace then filed a Section 1983

complaint asserting a Fourth Amendment claim. Id.

at 424. Given the statute of limitations, the claim’s

timeliness depended on whether, because of Heck, it

had not accrued until the state appellate court’s reversal of his conviction and the prosecutor’s decision not

to retry him. Id. at 425. The Seventh Circuit held that

“‘a § 1983 unlawful arrest claim . . . accrue[s] on the

day of [] arrest,’” id. at 427, regardless of whether a

case-by-case examination indicates that the fruits of a

particular arrest were a necessary part of a plaintiff ’s

conviction, see id. at 426. In so holding, the Seventh

Circuit overruled a prior case’s holding that the Heck

bar applied to a Fourth Amendment claim challenging

an arrest that led to statements that were key to the

plaintiff ’s conviction. See id. at 423 & n.* (overruling

Gauger, 349 F.3d 354, and noting that the majority of

Seventh Circuit judges declined to hear the case en

banc). But it is not clear whether the Seventh Circuit

court would adhere to that approach if asked to consider the implications of this Court’s more recent consideration of a categorical Fourth Amendment rule in

a subsequent stage of the same case. See infra pp. 2324 (discussing Wallace v. Kato, 549 U.S. 384 (2007)).

“Fourth Amendment claims for unlawful searches or arrests”

could “in all cases” go forward. Copus v. City of Edgerton, 151

F.3d 646, 648 (7th Cir. 1998); see Booker v. Ward, 94 F.3d 1052

(7th Cir. 1996). Another line denied that “false-arrest and other

Fourth Amendment claims” are “always premature while the

plaintiff still faces criminal punishment.” Gauger v. Hendle, 349

F.3d 354, 361 (7th Cir. 2003).

14

In any event, it is incorrect to say that courts following current Seventh Circuit precedent on Heck

“would not have dismissed [petitioner’s] claim.” Pet. 2.

The Seventh Circuit’s decision in Wallace v. Chicago

did not overrule previous holdings—which that circuit

continues to invoke—that a Fourth Amendment Section 1983 complaint asserting the plaintiff ’s innocence

is indeed barred by Heck. In Okoro v. Callaghan, 324

F.3d 488 (7th Cir. 2003), and Okoro v. Bohman, 164

F.3d 1059 (7th Cir. 1999), the plaintiff had been convicted of a drug offense based on heroin found in his

home. His Section 1983 claim, which alleged that the

police had violated the Fourth Amendment by illegally

seizing and stealing jewels as part of that search, was

supported by allegations that he had never had any

heroin and that the entire search had been a setup to

“frame[]” him and steal the jewels. 324 F.3d at 490;

164 F.3d at 1062. The Okoro decisions reasoned that

Heck prohibited the Fourth Amendment claim from

going forward unless the plaintiff first received a favorable termination of his criminal case, because his

civil suit argued “that there were no drugs and that he

was framed”—and “[i]f a jury believed those allegations, the basis of his conviction would have been

wiped out.” Mordi v. Zeigler, 870 F.3d 703, 708 (7th

Cir. 2017) (discussing Okoro v. Callaghan, 324 F.3d at

489).

In this case, petitioner’s complaint similarly contends that he never possessed child pornography and

was in fact framed. See, e.g., SAC ¶ 1034 (alleging that

police “fabricate[d] the flash drive” that was found in

the search and introduced at trial); id. ¶ 1064 (asserting that Datzman and prosecutor collaborated in “fabrication[s]” both “at trial” and when “seeking

warrants”); id. ¶¶ 674, 687 (alleging that Datzman’s

15

forensic tools implanted incriminating data on petitioner’s devices); id. ¶¶ 54-55 (implying that evidence

was planted in Lund’s patrol car after its initial seizure by police). Because the basis for petitioner’s conviction would have been wiped out if a jury believed

those allegations, see Mordi, 870 F.3d at 708, petitioner’s Fourth Amendment claims would appear to be

barred under Seventh Circuit precedent, too.7

ii. Petitioner’s argument that the Eighth, Tenth,

and Eleventh Circuits also view Heck as “categorically

exempt[ing] Fourth Amendment claims seeking damages for unlawful searches or seizures but not the ensuing convictions” (Pet. 17) is incorrect.

In describing the Eighth Circuit’s position, petitioner points to Moore v. Sims, 200 F.3d 1170 (8th Cir.

2000) (per curiam), and Whitmore v. Harrington, 204

F.3d 784 (8th Cir. 2000) (per curiam). Pet. 17. Those

short per curiam opinions did conclude that the

Fourth Amendment claims at issue in those cases

were not subject to the Heck bar. But they did not

state (let alone hold) that Heck requires a categorical

approach to Fourth Amendment claims—or that it forbids a case-specific approach. Neither opinion explains whether the court’s ruling rested on the mere

existence of a Fourth Amendment claim as opposed to

the particular facts and circumstances surrounding

that claim. Petitioner observes that Moore did not

“identify[] any exclusionary rule exception or harmless-error theory” applicable to the case, and that

Whitmore did not “mention[] any case-specific facts.”

7 See McCann v. Neilsen, 466 F.3d 619, 622 (7th Cir. 2006) (stating that the question is “not whether McCann could have drafted

a complaint that steers clear of Heck (he could have),” but

whether “the complaint contain[s] factual allegations that ‘necessarily imply’ the invalidity of his convictions”) (emphasis added).

16

Pet. 17. But the lack of a thorough discussion is not

surprising in the context of a per curiam opinion, and

those observations hardly establish that the Eighth

Circuit was necessarily applying a categorical rule.

Other cases, however, make clear that the Eighth

Circuit does look to case-specific facts regarding the

evidence of conviction in determining whether Heck

bars a Fourth Amendment claim. In Shultz v. Buchanan, 829 F.3d 943 (8th Cir. 2016), for instance, the

Eighth Circuit concluded that Heck did not require a

plaintiff to first invalidate his conviction for public intoxication before suing officers over their warrantless

entry into his home. Rather than simply rely on the

Fourth Amendment nature of the claim, however, the

Eighth Circuit reasoned that Heck did not bar the

claim because the alleged violation did not lead to the

trial evidence supporting the conviction: “[s]uccess on

Shultz’s Fourth Amendment claim . . . would not

demonstrate the invalidity of his conviction for public

intoxication” because “[a]ll of the conduct relating to

the public intoxication offense necessarily occurred in

public and before Buchanan’s entry into Shultz’s

home.” Id. at 949.8

With respect to the Tenth Circuit, petitioner portrays Beck v. City of Muskogee Police Department, 195

F.3d 553 (10th Cir. 1999), as establishing that “the

Heck bar is categorically inapplicable to Fourth

Amendment claims for unreasonable searches or seizures.” Pet. 18. But the Tenth Circuit more recently

clarified that the portion of Beck on which petitioner

relies is “dicta”—and that courts in that circuit should

8 See also, e.g., Anderson v. Franklin Cnty., 192 F.3d 1125, 1128,

1131 (8th Cir. 1999) (concluding that Heck barred the plaintiff

from bringing a § 1983 claim for false arrest and imprisonment

unless he first invalidated his misdemeanor theft conviction).

17

not apply a “categorical rule” in this context. Garza v.

Burnett, 672 F.3d 1217, 1219 (10th Cir. 2012). As that

more recent decision makes clear, the Tenth Circuit

“eschew[s]” petitioner’s “categorical rule in favor of a

more nuanced” and “case-by-case approach,” in which

treatment of a plaintiff ’s Fourth Amendment claims

“‘depend[s] on their substance.’” Id. at 1219-1220. In

that case, the Tenth Circuit held that Heck had barred

a plaintiff ’s Fourth Amendment claim until the reversal of his conviction—because without the unlawfully

seized evidence, he “could not have been convicted,

and thus a declaration that the search was unconstitutional would undermine the convictions.” Id. at

1220. While the court acknowledged that “the doctrines of ‘independent source,’ ‘inevitable discovery,’

and ‘harmless error’” might inform whether a particular Fourth Amendment claim is barred by Heck, it understood Heck to require a case-specific evaluation of

how those doctrines would apply “to [a] specific claim.”

Id. (quoting Heck, 512 U.S. at 487 n.7).9

Finally, petitioner contends that “the Eleventh Circuit also applies Heck’s footnote 7 categorically.” Pet.

18. Once again, however, petitioner misunderstands

the case he cites and ignores subsequent circuit precedent. Petitioner primarily relies on one sentence in a

footnote of a per curiam decision, Datz v. Kilgore, 51

F.3d 252, 253 n.1 (11th Cir. 1995) (per curiam). But

Datz’s cursory mention of Heck—in an opinion focused

on an entirely different issue—did not address

9 Petitioner tries to explain away Garza’s rejection of the categorical approach as “not clearly essential” to the disposition of that

case. Pet. 18 n.4. But Garza’s discussion of this aspect of the

Heck rule was lengthy and considered, see Garza, 672 F.3d at

1219-1221, and the Tenth Circuit continues to rely on it, see, e.g.,

Strepka v. Thompson, 831 F. App’x 906, 909 (10th Cir. 2020).

18

whether courts should apply a categorical or factbased analysis in applying Heck to Fourth Amendment claims. Id. Instead, the opinion simply acknowledged that the plaintiff ’s conviction “might still be

valid considering such doctrines as inevitable discovery, independent source, and harmless error,” id. (emphasis added), before affirming the district court’s

dismissal of the claim on other grounds, id. at 253-254.

Subsequent decisions make clear that the Eleventh

Circuit applies a fact-based approach. Before holding

that Heck bars a particular Fourth Amendment claim,

the Eleventh Circuit requires a sufficient record to determine—on a case-by-case basis—whether success on

that claim would in fact cast doubt on the propriety of

the criminal conviction. See Hughes v. Lott, 350 F.3d

1157, 1161 (11th Cir. 2003). Where “the circumstances surrounding” the plaintiff ’s convictions “are

unknown from the record,” it is “impossible” to determine whether “a successful § 1983 action for unreasonable search and seizure necessarily implie[s] the

invalidity of those convictions.” Id. The Eleventh Circuit therefore disapproves of dismissing claims under

Heck in cases where sufficient facts are not yet known

at that “stage in the proceedings.” Id.; see generally

Dyer v. Lee, 488 F.3d 876, 883-884 (11th Cir. 2007)

(discussing Hughes). Where it is clear, however, that

the underlying conviction in fact depended on evidence

from the challenged search, the Eleventh Circuit applies the Heck bar. See, e.g., Baxter v. Crawford, 233

F. App’x 912, 916 (11th Cir. 2007).10

10 The Eleventh Circuit’s fact-intensive approach is also reflected

in Harrigan v. Metro Dade Police Dep’t, 977 F.3d 1185 (11th Cir.

2020). See Pet. 19. Harrigan determined that Heck did not apply

to a plaintiff ’s claims based on a close analysis of the testimony,

19

2. On the merits, petitioner argues that the Ninth

Circuit (along with the Second, Fourth, Fifth, and

Sixth Circuits) has “fundamentally erred” and “contradict[ed] Heck’s rule and its rationales” by following

a case-specific approach. Pet. 23; see id. at 23-31.

That argument is unpersuasive.

a. The decision below faithfully applied Heck’s

rule that, if a Section 1983 claim “will not demonstrate

the invalidity of any outstanding criminal judgment

against the plaintiff ” if it succeeds, the claim “should

be allowed to proceed” so long as there is no “other bar.”

512 U.S. at 487. The district court had dismissed all

of petitioner’s Section 1983 claims as “inextricably

linked to” his criminal conviction. Pet. App. 15a. But

the court of appeals recognized that a mere “link[age]”

does not bar claims under Heck. Id. at 2a. Instead,

Heck bars a Section 1983 claim if success on that claim

“would negate an element of the offense or relies on

facts inconsistent with the plaintiff ’s extant conviction.” Id. at 3a. With respect to the bulk of petitioner’s

claims, where it was not obvious whether the claims

were “fundamentally inconsistent with [his] conviction,” id. at 4a, the court of appeals accordingly vacated the district court’s dismissals and remanded for

a careful assessment.

With respect to Claims 1 through 5, however,

which “attack[ed] the probable cause basis” for Warrant E, the court of appeals determined that Heck applied. Pet. App. 3a. That warrant uncovered the child

pornography “for which [petitioner] was convicted,” id.,

and petitioner has never identified how he could have

been convicted of possessing that contraband without

arguments, instructions, and verdicts in the plaintiff’s criminal

cases. 977 F.3d at 1187-1189, 1193-1195.

20

it actually being found. Moreover, petitioner’s complaint essentially contended that he was framed: that

the evidence of his crime was defective; that evidence

proving his innocence was hidden; and that evidence

introduced by the prosecution at trial was fabricated.

See, e.g., SAC ¶ 1034 (alleging police “fabricate[d] the

flash drive” that was found in the search and introduced at trial); id. ¶ 1064 (police “fabrication[s]” “at

trial” and when “seeking warrants”); id. ¶¶ 674, 687

(incriminating data implanted on petitioner’s devices);

id. ¶ 55 (appearing to deny that police actually found

evidence in petitioner’s car). Under those particular

circumstances, it is irrelevant whether petitioner “disclaimed seeking any relief for the conviction,” Pet. 2,

because he plainly alleged facts that conflict with the

jury’s verdict of guilt.

b. Petitioner argues that Heck is “categorically inapplicable” to Section 1983 Fourth Amendment claims

as long as a claim seeks damages only for the search

or seizure itself and not for the resulting conviction or

incarceration. Pet. 23. In his view, that follows from

the Court’s observation in footnote 7 that, in light of

“doctrines like independent source,” “inevitable discovery,” and “harmless error,” a successful Section

1983 claim challenging a search “would not necessarily

imply that the plaintiff ’s conviction was unlawful.”

Pet. 24. (quoting Heck, 512 U.S. at 487 n.7). Seizing

on the presence of the word “necessarily,” petitioner

contends that footnote 7 requires “a categorical” analysis of Fourth Amendment claims, id. at 25, regardless

of whether “there is a particular exclusionary-rule exception or harmless-error theory that could potentially

sustain the conviction despite the” alleged Fourth

Amendment violation, id. at 24. But see Brown v. Davenport, 142 S. Ct. 1510, 1528 (2022) (“‘the language of

21

an opinion is not always to be parsed as though we

were dealing with [the] language of a statute.’”).

But the Court’s holding in Heck confirms that it is

the relationship between a particular Section 1983

complaint and a particular criminal judgment that

matters—not any categorical rule. Heck directs that a

Section 1983 suit “should be allowed to proceed” only

“if the district court determines that the plaintiff ’s action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment.” 512 U.S.

at 487 (first emphasis added). And footnote 7 contemplates that only some Fourth Amendment search

claims (not all) will therefore go forward: it says that

“a suit for damages attributable to an allegedly unreasonable search may lie”—not that such a suit will always lie. Id. at 487 n.7.11

This case also illustrates why petitioner’s proposed

categorical rule would not serve Heck’s rationales.

Heck cited the need to “‘avoid[] parallel litigation over

the issues of probable cause and guilt,’” to avoid “‘a

collateral attack on the conviction through the vehicle

of a civil suit,’” and to preserve the “hoary principle

that civil tort actions are not appropriate vehicles for

challenging the validity of outstanding criminal judgments.” 512 U.S. at 484-486. Here, petitioner’s civil

complaint essentially asserts that he was framed from

Petitioner argues that Heck bars only claims that could not

possibly coexist with a criminal judgment. Pet. 6. But Heck also

aims to prevent claims that, if successful, would call into question

an outstanding criminal conviction. See Heck, 512 U.S. at 487

(asking “whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence”) (emphasis added); Muhammad v. Close, 540 U.S. 749, 751 (2004) (per

curiam) (Heck applies “where success in a prisoner’s § 1983 damages action would implicitly question the validity of conviction”).

11

22

the warrant application on. See supra pp. 14-15. He

commenced the suit while his criminal appeal was

pending and continues to pursue it at the same time

as he pursues habeas relief in state and federal court.

See supra pp. 5-6. The complaint even admits that its

factual allegations, if proven, could “lead[] to reversal

of conviction on appeal or through habeas proceedings.”

SAC ¶ 64. It amounts to the kind of “parallel litigation”

challenging the validity of a criminal conviction about

which Heck was concerned.

c. Petitioner also argues that post-Heck decisions

of this Court support his position. He asserts that in

Nelson v. Campbell, 541 U.S. 637 (2004), the Court

“describ[ed] footnote 7 categorically.” Pet. 25. That

overreads Nelson. Nelson held that a prisoner could

use Section 1983 to prevent the allegedly inhumane

“cut-down” procedure that Alabama intended to use to

carry out the plaintiff ’s death sentence. 541 U.S. at

639. The plaintiff sought only injunctive relief, so the

Court applied the limitations on injunctive relief recognized in Preiser v. Rodriguez, 411 U.S. 475 (1973).

See Nelson, 541 U.S. at 639, 643. The Court held that

Preiser would not bar the plaintiff ’s claim if it were

possible for Alabama to carry out the death sentence

by other means. Id. at 645-646. It observed that this

approach was “consistent” with its approach to damages claims under Heck, stating that “we were careful

in Heck to stress the importance of the term ‘necessarily’” with respect to Heck’s applicability to “a § 1983

suit . . . that would ‘necessarily imply’ the invalidity of

the fact of an inmate’s conviction.” Id. at 646-647

(quoting Heck, 512 U.S. at 487 & n.7). Nelson remanded for the district court to determine whether an

injunction barring the cut-down procedure would in

fact make carrying out the death sentence impossible

on the particular facts of his case. Id. at 645-646; see

23

id. (noting importance of State’s agreement about possible alternatives). To the extent that Nelson elucidates the proper understanding of Heck, it supports

the fact-specific approach applied by the decision below—not the categorical rule favored by petitioner.12

In any event, this Court’s most pertinent post-Heck

decision is Wallace v. Kato, 549 U.S. 384 (2007), which

undermines petitioners’ position. That case arose out

of the Seventh Circuit litigation discussed above, see

supra pp. 12-13, where a plaintiff filed a Section 1983

action for false arrest in violation of the Fourth

Amendment after his murder conviction was set aside

on appeal. Wallace v. Kato, 549 U.S. at 386-387 & n.1.

The statute of limitations would have made the plaintiff ’s Section 1983 claim timely if Heck had barred the

claim until his successful appeal, but presumptively

late if not. Id. at 387-388. This Court ruled that because Heck only bars a Section 1983 suit once the

plaintiff is convicted, the limitations period began to

run well before the plaintiff ’s conviction was overturned, because he could have brought his claim in the

time between his arraignment and conviction. Id. at

391-394. In contrast, the Court declined to adopt the

alternative argument for affirmance, advanced by a

concurring opinion in Wallace (and petitioner here),

that “the Heck bar can never come into play in a § 1983

12 A fact-specific inquiry about the relationship between the alleged violation and the Heck-protected penal determination is

also confirmed by Muhammad v. Close. See 540 U.S. at 754-755

(Heck did not apply to allegation that improper parole hearing

cost petitioner good-time credits, because “the Magistrate Judge

expressly found or assumed” that in the underlying parole hearing no good-time credits were eliminated by the prehearing action

“Muhammad called into question”).

24

suit seeking damages for a Fourth Amendment violation.” Id. at 395 n.5 (discussing id. at 398-399 (Stevens, J., concurring in the judgment)).

3. Finally, although petitioner asserts that “this

case is an ideal vehicle to resolve the question presented,” Pet. 31 (capitalization omitted), it would actually be an exceptionally poor vehicle in which to do

so. The case arises from an unusually long and confusing complaint, which even petitioner has acknowledged is “burden[some].” SAC ¶ 65. 13 Petitioner

attempts to extract some subset of claims for presentation to this Court.14 But even those claims overlap

significantly with claims in petitioner’s other pending

litigation, and dozens of additional claims remain subject to ongoing proceedings in this case. See supra pp.

5, 8-9 & n.4. The presentation of petitioner’s issue is

far from “clean[].” Pet. 31.

In any event, recent developments have made the

petition’s issue essentially irrelevant. After the court

of appeal’s decision here, the judgment in petitioner’s

criminal case became final. See supra p. 4. The determination in petitioner’s criminal case that Warrant E

was legally obtained therefore has preclusive effect in

this case. See Allen v. McCurry, 449 U.S. 90, 95-105

(1980) (federal courts give preclusive effect to Fourth

Amendment determinations in state criminal cases);

13 Cf. Pet. App. 11a (district court’s statement that petitioner’s

“unnecessarily voluminous” complaint “mix[es] allegations and

arguments in a confusing manner,” such that “the Court ‘cannot

be sure [it] ha[s] correctly understood all the averments’ ”); C.A.

Dkt. 6 at 6 (petitioner’s brief, “acknowledg[ing] the difficulty the

Complaint’s verbosity created”).

14 Compare Pet. ii (multiple “claims directly at issue here”), and

id. at 11 (multiple “counts at issue”), with id. at 31 (single “claim

at issue here”).

25

Schmidlin v. City of Palo Alto, 157 Cal. App. 4th 728,

767-771 (2008) (granting preclusive effect under California law to issues in denial of motion to suppress).

Unless petitioner’s criminal judgment is invalidated,

petitioner therefore would be unable to succeed on his

Fourth Amendment claim regardless of how this

Court might resolve the Heck issue.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

ROB BONTA

Attorney General of California

MICHAEL J. MONGAN

Solicitor General

JOSHUA A. KLEIN

Deputy Solicitor General

FIEL D. TIGNO

Supervising Deputy

Attorney General

CHRISTOPHER D. BEATTY

Deputy Attorney General

May 26, 2022