Amicus Curiae Brief — Gabriel Olivier, Petitioner v. City of Brandon, Mississippi
Supreme Court briefSep 9, 2025
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No. 24-993
In the Supreme Court of the United States
GABRIEL OLIVIER,
PETITIONER
v.
CITY OF BRANDON, MISSISSIPPI, ET AL.
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE IN SUPPORT OF VACATUR
D. JOHN SAUER
Solicitor General
Counsel of Record
HARMEET K. DHILLON
Assistant Attorney General
CURTIS E. GANNON
Deputy Solicitor General
JESUS OSETE
Principal Deputy Assistant
Attorney General
ASHLEY ROBERTSON
Assistant to the
Solicitor General
ANDREW BRANIFF
BRANT S. LEVINE
Attorneys
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
QUESTIONS PRESENTED
1. Whether this Court’s decision in Heck v. Humphrey, 512 U.S. 477 (1994), bars claims under 42 U.S.C.
1983 seeking to preclude prospective enforcement of a
law where the plaintiff has previously been convicted
under the law challenged as unconstitutional.
2. Whether Heck v. Humphrey bars Section 1983
claims where the plaintiff never had access to federal
habeas.
(I)
TABLE OF CONTENTS
Page
Interest of the United States....................................................... 1
Introduction................................................................................... 2
Statement:
A. Factual background .................................................. 4
B. Procedural background ............................................ 6
Summary of argument ................................................................. 8
Argument:
I. A prior conviction under a state or local law does
not bar a suit under 42 U.S.C. 1983 challenging
the future enforcement of that law .............................. 11
A. Section 1983 authorizes pre-enforcement
challenges to state or local criminal laws,
notwithstanding a plaintiff ’s prior conviction
under the challenged law ........................................ 12
B. The court of appeals erred in holding that this
Court’s precedents preclude relief ........................ 15
II. If the Court reaches the second question
presented, it should reject petitioner’s proposed
rule .................................................................................. 24
A. The application of Heck does not depend on
whether the plaintiff previously had access to
federal habeas .......................................................... 25
B. Petitioner’s contrary arguments are
unavailing ................................................................. 28
Conclusion ................................................................................... 33
TABLE OF AUTHORITIES
Cases:
Allen v. McCurry, 449 U.S. 90 (1980) .................................. 31
Bucklew v. Precythe, 587 U.S. 119 (2019) ..................... 11, 28
Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) .................................................... 12
(III)
IV
Cases—Continued:
Page
City of Grants Pass v. Johnson, 603 U.S. 520 (2024)......... 23
Cohen v. Longshore, 621 F.3d 1311 (10th Cir. 2010) .... 28, 30
Decker v. Northwest Envtl. Def. Ctr.,
568 U.S. 597 (2013).............................................................. 24
Doran v. Salem Inn, Inc., 422 U.S. 922 (1975) ................... 13
Douglas v. City of Jeannette, 319 U.S. 157 (1943) ............. 18
Edwards v. Balisok, 520 U.S. 641 (1997) ............................ 19
FCC v. Prometheus Radio Project,
592 U.S. 414 (2021).............................................................. 24
Heck v. Humphrey,
512 U.S. 477 (1994)......... 3, 4, 6, 7, 9, 12, 15-19, 25-28, 30-33
Huffman v. Pursue, Ltd., 420 U.S. 592 (1975) ................... 14
Martin v. City of Boise, 920 F.3d 584 (9th Cir.),
cert. denied, 140 S. Ct. 674 (2019), abrogated
on other grounds by City of Grants Pass v.
Johnson, 603 U.S. 520 (2024) ............................................. 23
McCullen v. Coakley, 573 U.S. 464 (2014)........................... 12
McDonough v. Smith,
588 U.S. 109 (2019)................................... 4, 10, 11, 29, 30, 32
Mitchell v. Forsyth, 472 U.S. 511 (1985) ............................. 31
Mitchum v. Foster, 407 U.S. 225 (1972) ........................ 12, 33
Muhammad v. Close, 540 U.S. 749 (2004) .......................... 28
Osborn v. Bank of United States,
22 U.S. (9 Wheat.) 738 (1824)............................................. 12
Pierson v. Ray, 386 U.S. 547 (1967) .................................... 31
Powers v. Hamilton County Pub. Def. Comm’n,
501 F.3d 592 (6th Cir. 2007), cert. denied,
555 U.S. 813 (2008).............................................................. 28
Preiser v. Rodriguez,
411 U.S. 475 (1973)............................... 3, 9, 15, 18-20, 26, 27
Seminole Tribe of Florida v. Florida,
517 U.S. 44 (1996) ............................................................... 28
V
Cases—Continued:
Page
Skinner v. Switzer, 562 U.S. 521 (2011) .............................. 19
Spencer v. Kemna, 523 U.S. 1 (1998) ................................... 28
Steffel v. Thompson, 415 U.S. 452 (1974) ...................... 13, 23
Stanton v. District of Columbia Ct. of Appeals,
127 F.3d 72 (D.C. Cir. 1997) ............................................... 23
Susan B. Anthony List v. Driehaus,
573 U.S. 149 (2014)........................................................ 13, 23
Thompson v. Clark, 596 U.S. 36 (2022) ................... 11, 16, 30
Trump v. CASA, Inc., 145 S. Ct. 2540 (2025) ..................... 17
Wilkinson v. Dotson, 544 U.S. 74 (2005) .......... 7, 9, 10, 18-20
Wilson v. Midland County, 116 F.4th 384 (5th Cir.),
petition for cert. pending, No. 24-672
(filed Dec. 12, 2024)......................................................... 7, 31
Wooley v. Maynard,
430 U.S. 705 (1977)............................... 3, 8, 11, 13, 14, 21, 22
Young, Ex parte, 209 U.S. 123 (1908) ............................ 12, 21
Younger v. Harris, 401 U.S. 37 (1971)................................. 13
Zwickler v. Koota, 389 U.S. 241 (1967) ................................ 12
Constitution and statutes:
U.S. Const.:
Amend. I (Free Speech Clause)......................... 1, 2, 6, 12
Amend. XIV ....................................................................... 6
18 U.S.C. 241 ............................................................................ 1
18 U.S.C. 242 ............................................................................ 1
28 U.S.C. 1257(a) ................................................................... 32
28 U.S.C. 2241(c)(3) ............................................................... 30
28 U.S.C. 2254 ........................................................................ 33
28 U.S.C. 2254(a) ................................................................... 30
28 U.S.C. 2254(d)(1) ............................................................... 32
42 U.S.C. 1983 ...................................................1-4, 6-20, 22-32
VI
Statutes—Continued:
Page
Brandon, Miss., Code of Ordinances:
§ 1-12 ................................................................................... 5
§ 50-45 ................................................................................. 5
D.C. Code § 16-802(a) (LexisNexis Supp. June 2025) ....... 21
Miss. Code Ann. (West 2019):
§ 99-39-5(1)(c)................................................................... 21
§ 99-39-5(2) ....................................................................... 22
Miscellaneous:
2 Simon Greenleaf, A Treatise on the Law of
Evidence (9th ed. 1863) ...................................................... 26
John Harrison, Ex Parte Young,
60 Stan. L. Rev. 989 (2008) ................................................ 17
Martin L. Newell, A Treatise on the Law of
Malicious Prosecution (1892) ........................................... 16
In the Supreme Court of the United States
No. 24-993
GABRIEL OLIVIER,
PETITIONER
v.
CITY OF BRANDON, MISSISSIPPI, ET AL.
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE IN SUPPORT OF VACATUR
INTEREST OF THE UNITED STATES
The questions presented concern the availability of
relief under 42 U.S.C. 1983 for a plaintiff who brings a
First Amendment challenge to a law under which he has
previously been convicted. The United States has substantial interests in the resolution of those questions.
First, the United States has a substantial interest in
ensuring that the constitutional rights at issue here are
carefully safeguarded. The United States is committed
to the preservation of federal constitutional rights, including the right to free expression. The government
also prosecutes state and local officials who willfully violate individuals’ constitutional rights. 18 U.S.C. 241,
242.
Second, although this case involves a civil suit against
local officials under Section 1983, this Court’s resolution
(1)
2
of the questions presented could affect suits against federal officials or agencies. The United States has a substantial interest in the circumstances in which federal
officials and agencies can be sued for violating constitutional rights.
Third, the United States often brings federal criminal charges or seeks criminal sentences that are predicated on prior convictions under state law. The United
States has a substantial interest in promoting the finality of state convictions and consistency as to state-court
judgments.
INTRODUCTION
Petitioner Gabriel Olivier brings suit under 42 U.S.C.
1983 to challenge the constitutionality of an ordinance
enacted by respondent, the City of Brandon, Mississippi
(the City). Petitioner contends that the ordinance, which
restricts demonstrations near a public amphitheater,
impermissibly interferes with his religious expression
in violation of the First Amendment. Petitioner has previously been convicted under the ordinance, and he seeks
declaratory and injunctive relief to preclude future prosecutions under the same law.
That claim is cognizable under Section 1983. There
is no question that another plaintiff may properly bring
(and has in fact brought) suit under Section 1983 to challenge the law’s constitutionality. See Br. in Opp. at 1718. Nor is there any dispute that, if a challenge brought
by someone else were to succeed, a federal court might
properly enjoin enforcement of the ordinance, or issue
a judgment declaring it unconstitutional, as to that
other plaintiff. The first question in this case is whether
that same relief is available to a plaintiff, like petitioner,
who was previously convicted under the ordinance.
3
The answer is straightforward under this Court’s
precedents, which have long recognized that a plaintiff
may bring suit under Section 1983 to enjoin future enforcement of an allegedly unconstitutional law, notwithstanding a prior conviction under that law. Wooley v.
Maynard, 430 U.S. 705, 711 (1977). While a plaintiff
may not use Section 1983 as a vehicle to “annul the results of a state trial,” a plaintiff may bring suit “to preclude further prosecution under” an allegedly unconstitutional law. Ibid. The alternative, this Court has recognized, would put individuals to an untenable choice:
abide by a law that they believe is unconstitutional or
risk “becoming enmeshed in (another) criminal proceeding.” Ibid. (citation omitted).
The court of appeals erred in holding that this Court’s
subsequent decisions, including in Heck v. Humphrey,
512 U.S. 477 (1994), dictate a different result. In Heck,
this Court set forth the elements of a Section 1983 action seeking “damages attributable to an unconstitutional conviction or sentence,” and held that one element is the termination of the criminal proceedings in
the plaintiff ’s favor. Id. at 489-490. That rule, however,
does not apply to a suit (like petitioner’s) that seeks only
prospective relief and does not challenge the propriety
of prior criminal proceedings. Nor does petitioner’s suit
seek a remedy traditionally limited to habeas—i.e., to
upset “the fact or duration of confinement” in state custody—such that it would pose a conflict with the federal
habeas statute. Preiser v. Rodriguez, 411 U.S. 475, 489
(1973). Under these circumstances, nothing in this
Court’s case law prohibits the prospective relief that petitioner seeks. Accordingly, this Court should vacate
and remand for further proceedings.
4
Petitioner also contends (Br. 5) that this Court
should vacate for an “independent” reason: that Heck
has “no role to play for a § 1983 plaintiff * * * who was
never in custody.” This case presents no need to resolve
that question, but if the Court does so, it should reject
petitioner’s categorical rule. The applicability of Heck’s
favorable-termination requirement depends on the nature of the plaintiff ’s claim, not whether the plaintiff
was (or is) in custody. The requirement applies to a
claim under Section 1983 that is analogous to the common-law tort of malicious prosecution, because one element of such a claim is that the prior criminal proceedings terminated in the tort plaintiff ’s favor. See Heck,
512 U.S. at 484. When a plaintiff cannot satisfy that element, he lacks a “present cause of action” under Section 1983, regardless of whether he previously had access to federal habeas. McDonough v. Smith, 588 U.S.
109, 119 (2019). Thus, if the Court concludes (contrary to
the government’s position with respect to the first question presented) that petitioner’s claim for prospectiveonly relief is analogous to malicious prosecution, it
should reject petitioner’s contention that Heck’s bar is
nonetheless inapplicable simply because he was never
in custody.
STATEMENT
A. Factual Background
Petitioner Gabriel Olivier is an evangelical Christian
who believes that “sharing his religious views is an important part of exercising his faith.” Pet. App. 19a. To
that end, petitioner frequents high-traffic areas with
pedestrians, where he uses signs, handouts, and loudspeakers to promote his views. Id. at 2a; J.A. 3-4. Between 2018 and 2019, petitioner periodically “shared an
evangelistic message * * * through preaching, litera-
5
ture, and conversation” on the sidewalks near an amphitheater, owned by the City, that hosts live events for up
to 8500 people. Pet. App. 2a-3a.
In 2019, the City adopted an ordinance (Brandon,
Miss., Code of Ordinances § 50-45) that restricts demonstrations near the amphitheater to a designated “protest area” during the three hours before, and the hour
after, an event. Pet. App. 3a; see id. at 24a-26a. Violations of the ordinance are punishable by a fine up to
$1000 and up to 90 days in county jail. See Brandon,
Miss., Code of Ordinance § 1-12. In addition, an individual who is convicted of a second violation of the ordinance within the same calendar year will not be permitted to return to the protest area for the remainder of
that calendar year. See Pet. App. 26a.
On May 1, 2021, when the amphitheater hosted its
first concert after being closed for the pandemic, petitioner brought a group of friends and family to the amphitheater’s parking lot to evangelize. Pet. App. 3a;
J.A. 11. The City’s chief of police (a respondent here)
directed petitioner to the protest area. Pet. App. 3a.
Petitioner initially complied, but he found the protest
area too isolated for concertgoers to hear his message,
and he returned to the sidewalk outside the amphitheater. Ibid.
After a colloquy, the chief of police ordered the arrest of petitioner and another member of his group.
J.A. 17-18. Petitioner was taken to the police station for
processing and then released on his own recognizance,
with instructions to appear in municipal court on a
charge of violating the ordinance. Pet. App. 3a; J.A. 18.
On June 23, 2021, petitioner entered a plea of nolo contendere. Pet. App. 3a. The court imposed a $304 fine
and a sentence of ten days of imprisonment, which was
6
suspended on the condition that petitioner did not violate the ordinance for one year. Id. at 31a. Petitioner
chose not to appeal, and he paid the fine on August 2,
2021. Ibid.
B. Procedural Background
1. On October 6, 2021, petitioner sued respondents
in the United States District Court for the Southern
District of Mississippi. Pet. App. 3a, 31a; J.A. 1. He
brought claims under 42 U.S.C. 1983, one of which alleges that, by restricting his religious expression, the
City’s ordinance violates the Free Speech Clause of the
First Amendment, as incorporated by the Fourteenth
Amendment. Pet. App. 3a; J.A. 2, 20-21. Petitioner
sought injunctive relief to prevent the City from applying the ordinance in the future to his religious expression on public sidewalks in the restricted zone near the
amphitheater, as well as a declaratory judgment that
the ordinance is unconstitutional on its face and as applied to his religious activities. See Pet. App. 8a; J.A.
21-22. Petitioner also initially sought nominal and compensatory damages, but he abandoned those requests
on appeal. Pet. App. 3a-4a; J.A. 22.
The district court granted summary judgment in favor of respondents. Pet. App. 19a-41a. The court held
that this Court’s decision in Heck v. Humphrey, 512
U.S. 477 (1994), precludes petitioner’s claims for relief.
The district court believed that, under Heck, petitioner’s prior conviction prevents him from challenging
the constitutionality of the ordinance, including by seeking prospective relief. Pet. App. 37a-40a. The court further rejected petitioner’s argument that Heck is inapplicable because he was never in custody. See id. at 37a.
2. The court of appeals affirmed. Pet. App. 1a-14a.
The court understood Heck as precluding any suit un-
7
der Section 1983 that would “ ‘necessarily impl[y]’ the
invalidity of [a state] conviction.” Id. at 9a. It held that
petitioner’s constitutional challenge “to enjoin a state
law under which he was convicted” is subject to that bar
because a determination that a conviction is “based on
an unconstitutional rule is the sort of ‘obvious defect’
that, when established, results in nullification of the
conviction.” Id. at 9a-10a (citation omitted). In so holding, the court of appeals acknowledged that the “classic
example of a Heck-barred claim is one for money damages.” Id. at 7a. The court nevertheless believed that
this Court had “expanded Heck to also bar declaratory
and injunctive relief.” Id. at 7a, 11a (citing Wilkinson
v. Dotson, 544 U.S. 74, 81-82 (2005)). It accordingly held
that petitioner’s Section 1983 suit cannot proceed until
he can show favorable termination of the prior state proceedings, i.e., that his conviction has been “reversed,” “expunged,” or “declared invalid.” Id. at 7a (quoting Heck,
512 U.S. at 487).
Separately, the court of appeals applied circuit precedent holding that Heck applies “even if a § 1983 plaintiff is ‘no longer in custody’ ” and has no access to habeas
relief. Pet. App. 10a (citation omitted). The en banc
Fifth Circuit had recently held that the favorabletermination requirement set forth in Heck “is unconcerned with custody” and applies instead to “all § 1983
claims by all civil plaintiffs who seek civil remedies
against defective criminal process.” Wilson v. Midland
County, 116 F.4th 384, 389 (2024), petition for cert.
pending, No. 24-672 (filed Dec. 12, 2024).
3. The court of appeals denied rehearing en banc by
a vote of 9-8. Pet. App. 42a-43a. The eight dissenting
judges concluded that “Heck does nothing to bar [petitioner’s] prospective-relief claim” because “[t]he grant
8
of a forward-looking injunction * * * does not invalidate [his] previous conviction.” Id. at 50a, 51a (Oldham,
J.); see id. at 44a-45a (Richman, J.); id. at 46a-48a (Ho,
J.).
SUMMARY OF ARGUMENT
I. A plaintiff may bring suit under Section 1983 to
preclude enforcement of an allegedly unconstitutional
law, regardless of whether he has previously been convicted under that law.
A. This Court has long held that a plaintiff may
bring under Section 1983 a pre-enforcement challenge
to a state or local law alleged to be unconstitutional, and
it has regularly intervened when state laws—including
criminal laws—run afoul of the Constitution’s guarantees. Likewise, the Court has made clear that a past
conviction under a law does not bar a plaintiff from
seeking “wholly prospective” relief with respect to future enforcement of that law. Wooley v. Maynard, 430
U.S. 705, 711 (1977). While a plaintiff may not use Section 1983 to “annul the results of a state trial,” a plaintiff
may bring suit “to preclude further prosecution under a
statute alleged to violate his [constitutional] rights.”
Ibid. (emphasis added).
This case involves a straightforward application of
those principles. Petitioner brings suit under Section
1983, seeking declaratory and injunctive relief to preclude future enforcement of the City’s ordinance. J.A.
2, 21-22. Although petitioner has previously been convicted under that law, he no longer seeks damages, nor
does he seek to “annul any collateral effects [that his]
conviction[] may have.” Wooley, 430 U.S. at 711. In
short, he “seek[s] only to be free from prosecution for
future violations of the same [law].” Ibid. That claim is
9
cognizable under Section 1983, notwithstanding petitioner’s prior conviction.
B. Nothing in the Court’s subsequent decisions, including Heck v. Humphrey, 512 U.S. 477 (1994), dictates
a different result.
In Heck, the Court considered “a § 1983 cause of action for damages attributable to an unconstitutional
conviction or sentence,” and it held that such a claim
“does not accrue until the conviction or sentence has
been invalidated.” 512 U.S. at 489-490. That decision,
however, turned on the nature of the damages claim before the Court. In particular, the Court analogized the
claim to the common-law tort of malicious prosecution,
one element of which is that the prior criminal proceeding terminated in the plaintiff ’s favor. Id. at 484. The
Court held that the same favorable-termination requirement applied to analogous Section 1983 claims for
damages, such that the element is necessary for a complete cause of action under Section 1983. See id. at 488489. But the Court’s reasoning does not extend to a suit,
like petitioner’s, that seeks only prospective relief precluding the future enforcement of a state or local law.
Favorable termination is not an element of such a
claim, and a prior conviction therefore does not bar the
possibility of prospective relief against further prosecution.
Although Heck involved a claim for damages, the
court of appeals maintained that the decision governed
suits for declaratory and injunctive relief as well. That
is incorrect. In a separate line of cases, this Court has
limited the availability of prospective relief under Section 1983 when the plaintiff ’s suit poses a conflict with
the federal habeas statute. See Preiser v. Rodriguez,
411 U.S. 475, 489 (1973); accord Wilkinson v. Dotson,
10
544 U.S. 74, 81-82 (2005). Under those precedents, a
plaintiff cannot bring suit under Section 1983 if he
seeks, directly or indirectly, relief that would result in
his “immediate or speedier release” from confinement.
Wilkinson, 544 U.S. at 81. But that rule applies only
where (unlike here) the plaintiff remains in custody.
Because petitioner’s suit does not conflict with the habeas statute, Preiser and its progeny do not bar relief.
II. The court of appeals improperly held that it was
bound by Heck to dismiss petitioner’s suit, and this
Court should accordingly vacate the judgment below
and remand for further proceedings, without addressing petitioner’s alternative argument as to why Heck
does not bar his claim. But if the Court reaches the second question presented, it should reaffirm that the application of Heck’s favorable-termination requirement
does not depend on whether the plaintiff had access to
federal habeas.
A. Heck establishes when a plaintiff has a “complete
and present cause of action” for certain damages claims
under Section 1983, without respect to that plaintiff ’s
custodial status. McDonough v. Smith, 588 U.S. 109,
119 (2019) (citation omitted). Because favorable termination is one element of a malicious-prosecution claim,
a plaintiff who brings an analogous claim under Section
1983 must meet that requirement, regardless of
whether he could have pursued relief under federal habeas. Thus, if the Court concludes (contrary to the government’s position) that petitioner has brought a claim
analogous to malicious prosecution, but see pp. 16-18,
infra, it should reject petitioner’s argument that Heck
is nonetheless inapplicable because he was never in custody.
11
B. Petitioner attempts to distinguish Heck because
that case involved a plaintiff who was in custody and
therefore might have pursued relief through federal habeas. But the “reasoning underlying” Heck’s holding
applies equally to a plaintiff outside custody who brings
a claim analogous to malicious prosecution, and that
reasoning is therefore “just as binding as the holding”
itself. Bucklew v. Precythe, 587 U.S. 119, 136 (2019). In
addition, this Court’s later decisions have reinforced
that Heck extends to individuals who had no practical
access to habeas. See McDonough, 588 U.S. at 119;
Thompson v. Clark, 596 U.S. 36, 44 (2022).
Finally, petitioner’s policy concerns do not warrant
the rule he proposes. Petitioner maintains that extending Heck to a plaintiff without access to habeas would
deny a federal forum to plaintiffs who cannot first obtain a favorable state ruling. Section 1983, however,
does not remedy every constitutional wrong, and in any
event, petitioner overstates the degree to which Heck’s
favorable-termination requirement limits access to a
federal forum. Petitioner’s rule, meanwhile, would create its own anomalies and undermine the State’s important interests in finality and consistency.
ARGUMENT
I. A PRIOR CONVICTION UNDER A STATE OR LOCAL
LAW DOES NOT BAR A SUIT UNDER 42 U.S.C. 1983
CHALLENGING THE FUTURE ENFORCEMENT OF
THAT LAW
This Court has long held that a plaintiff may bring
suit under Section 1983 to preclude future enforcement
of an allegedly unconstitutional law, notwithstanding a
prior conviction under that law. Wooley v. Maynard,
430 U.S. 705, 711 (1977). This Court’s subsequent deci-
12
sions, including Heck v. Humphrey, 512 U.S. 477 (1994),
do not displace that rule.
A. Section 1983 Authorizes Pre-Enforcement Challenges
To State Or Local Criminal Laws, Notwithstanding A
Plaintiff ’s Prior Conviction Under The Challenged Law
1. For more than two centuries, federal courts have
been willing to “restrain a state officer from executing
an unconstitutional statute of the State, when to execute
it would violate rights and privileges of the complainant
which had been guaranteed by the Constitution.” Ex
parte Young, 209 U.S. 123, 152 (1908) (citation omitted);
see Osborn v. Bank of United States, 22 U.S. (9 Wheat.)
738, 838-839 (1824). This Court has held that Section
1983, by its terms, contains an express cause of action
for prospective relief, including injunctive relief, see
Mitchum v. Foster, 407 U.S. 225, 242-243 (1972), and
declaratory relief, see Zwickler v. Koota, 389 U.S. 241,
245-252 (1967). In appropriate circumstances, a plaintiff may therefore seek to restrain the enforcement of a
state or local law—including a criminal law—alleged to
be unconstitutional, and this Court has regularly entertained challenges rooted in the First Amendment.1
This Court has also addressed when “principles of
equity, comity, and federalism” permit federal courts to
entertain pre-enforcement suits. Mitchum, 407 U.S. at
243. To avoid “federal court interference with state
court proceedings,” a federal court must ordinarily abstain from resolving a challenge to a state law when a
See, e.g., McCullen v. Coakley, 573 U.S. 464, 496-497 (2014)
(First Amendment challenge to state criminal law establishing
buffer zones around abortion clinics); Church of Lukumi Babalu
Aye, Inc. v. City of Hialeah, 508 U.S. 520, 528 (1993) (First Amendment challenge to municipal ordinance criminalizing animal sacrifice).
1
13
prosecution of the plaintiff under that law is pending.
Younger v. Harris, 401 U.S. 37, 43-45 (1971). But the
Court has also held that a federal court may intervene
when a genuine threat of prosecution exists and no such
prosecution is pending. See Steffel v. Thompson, 415
U.S. 452, 472-473 (1974) (declaratory relief ); Doran v.
Salem Inn, Inc., 422 U.S. 922, 934 (1975) (preliminary
injunction); cf. Susan B. Anthony List v. Driehaus, 573
U.S. 149, 158-159 (2014). The alternative, this Court has
recognized, would leave the “plaintiff between the
Scylla of intentionally flouting state law and the Charybdis of forgoing what he believes to be constitutionally protected activity.” Steffel, 415 U.S. at 462.
This Court has also made clear that a prior conviction does not bar the pursuit of “wholly prospective” relief that will preclude future prosecution for the same
offense. Wooley, 430 U.S. at 711. The petitioners in
Wooley (a husband and wife) had covered the motto
“Live Free or Die” on their New Hampshire license
plate because the motto was “repugnant to their moral
and religious beliefs.” Id. at 706-707 (citation omitted).
On three occasions, Mr. Maynard was convicted of violating a state statute making it a misdemeanor to obscure portions of his license plate. Id. at 708. After his
third conviction became final, the couple brought suit
under Section 1983 seeking declaratory and injunctive
relief precluding future enforcement of the provision.
See id. at 709.
Their challenge was cognizable, this Court held, notwithstanding that Mr. Maynard had “failed to seek review of his criminal convictions.” Wooley, 430 U.S. at
710. The Court distinguished the Maynards’ suit from
one in which a plaintiff sought to challenge, “by means
of federal intervention,” a state-court judgment against
14
him. Id. at 710-711 (citing Huffman v. Pursue, Ltd., 420
U.S. 592 (1975)). “Federal post-trial intervention[] in a
fashion designed to annul the results of a state trial . . .
deprives the States of a function which quite legitimately is left to them.” Id. at 711 (quoting Huffman,
420 U.S. at 609)). By contrast, when a plaintiff seeks
“only to be free from prosecutions for future violations
of the same statutes,” the same federalism and comity
concerns do not counsel against review. Ibid. A plaintiff may properly seek that sort of “wholly prospective”
relief, including injunctive and declaratory relief, “to
preclude further prosecution under” an allegedly unconstitutional statute. Ibid.
2. This case involves a straightforward application
of those principles. Petitioner contends that the City’s
ordinance is unconstitutional on its face and as applied
to him, as an impermissible restriction on his freedom
of speech. J.A. 20. He brings suit under Section 1983,
seeking declaratory and injunctive relief to preclude
prosecutions for future violations of that ordinance.
J.A. 2, 21-22. The court of appeals accepted that he has
a credible fear of prosecution, such that he must forgo
what he believes to be protected religious and expressive activity or risk further prosecution. Pet. App. 7a.
Under the logic of this Court’s decisions, that suffices to establish a cognizable Section 1983 claim. Although petitioner has previously been convicted under
the law that he challenges, he no longer seeks damages,
p. 6, supra, and he does not seek “to annul any collateral
effects those convictions may have,” Wooley, 430 U.S. at
711; see Pet. App. 36a. In short, he “seek[s] only to be
free from prosecution for future violations of the same
[law].” Wooley, 430 U.S. at 711 (emphasis added).
15
B. The Court Of Appeals Erred In Holding That This
Court’s Precedents Preclude Relief
The court of appeals erred in holding that petitioner’s
Section 1983 claim is not cognizable under Heck. The
court accepted that petitioner could have proceeded under Section 1983 but for his prior conviction under the
law he challenges. See Pet. App. 6a-7a. In the court’s
view, however, petitioner may not bring suit under Section 1983 unless and until his prior conviction is “reversed,” “expunged,” or “declared invalid.” Id. at 7a
(quoting Heck, 512 U.S. at 487). That holding misunderstands this Court’s precedents. Petitioner does not
seek “damages attributable to an unlawful conviction or
sentence.” Heck, 512 U.S. at 489-490. Nor does he seek
a remedy traditionally limited to habeas—i.e., to challenge “the fact or duration of his confinement” in state
custody. Preiser v. Rodriguez, 411 U.S. 475, 489 (1973).
Nothing in this Court’s case law prohibits the prospective relief he seeks.
1. This Court’s decision in Heck does not bar a claim
for prospective relief, such as petitioner’s, that seeks
only to restrain the future enforcement of a state or local law.
a. In Heck, the Court set forth the elements of a
claim “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.” 512 U.S. at 486. “One
element” of such a claim, the Court held, “is termination
of the prior criminal proceeding in favor of the accused,”
id. at 484, which means that “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 de-
16
termination, or called into question by a federal court’s
issuance of a writ of habeas corpus,” id. at 486-487. Unless and until the plaintiff establishes that essential element for such a claim, he has no “cause of action under
§ 1983.” Id. at 489.
The Court in Heck adopted the favorable-termination requirement by reference to the “common law of
torts.” 512 U.S. at 483. The plaintiff alleged that the
State had unlawfully secured his conviction, including
by intentionally suppressing exculpatory evidence. Id.
at 479. The “closest analogy” to such a claim, the Court
held, was “[t]he common-law cause of action for malicious prosecution,” id. at 484, which traditionally allowed recovery for the institution of criminal proceedings “against another from wrongful or improper motives, and without probable cause,” Martin L. Newell,
A Treatise on the Law of Malicious Prosecution § 5
(1892); see Thompson v. Clark, 596 U.S. 36, 44 (2022).
Such a claim depends in part on whether the proceedings were actually improper, and a favorable termination is necessary to establish that element of the claim.
Heck, 512 U.S. at 484.
There is no favorable-termination requirement, however, when a plaintiff seeks to enjoin a law’s future enforcement. Such a claim is not analogous to one for malicious prosecution. In a pre-enforcement suit, the plaintiff necessarily does not challenge the initiation of any
prosecution against him. Nor does he predicate his request for relief on the impropriety of any past legal proceeding. Instead, the plaintiff seeks to establish in federal court the unconstitutionality of the law, which would
preclude prosecution under it. Plainly, a favorabletermination requirement cannot extend to a plaintiff
17
who has not been prosecuted, as there is no criminal
proceeding that might terminate in his favor.2
b. Nor are there compelling reasons to impose a
favorable-termination requirement on a plaintiff who
brings a pre-enforcement challenge but was previously
convicted under the same law. The cause of action there,
which also targets future enforcement, similarly requires no proof that a past proceeding was improper.
Indeed, when a plaintiff brings a pre-enforcement challenge, he may well accept that the State fairly and faithfully prosecuted his past conduct. The plaintiff simply
argues that the law prohibiting certain conduct is constitutionally invalid and cannot be enforced prospectively. In those circumstances, the analogy to commonlaw malicious prosecution is inapt, and whether the
prior proceedings terminated favorably is beside the
point.
Imposing a favorable-termination requirement would
not serve the purposes that the Court identified in Heck.
In a pre-enforcement challenge, there is no “parallel litigation over the issues of probable cause and guilt.”
Heck, 512 U.S. at 484. When the pre-enforcement plaintiff ’s past proceedings have terminated, he might acThis Court has never held that a Section 1983 plaintiff seeking
declaratory or injunctive relief against future enforcement of a state
or local law must identify a common-law analogue under tort law. If
one is needed, the Court has suggested that an “antisuit injunction”
might serve as the appropriate analogue. Trump v. CASA, Inc., 145
S. Ct. 2540, 2554 n.9 (2025) (recognizing the “long line of cases” that
allowed “a court of equity [to] issue an antisuit injunction to prevent
an officer from engaging in tortious conduct”); John Harrison, Ex
Parte Young, 60 Stan. L. Rev. 989, 990 (2008) (“Through an anti-suit
injunction a party who would be the defendant in a corresponding
lawsuit can enforce in equity a legal position that would be a defense
at law.”).
2
18
cept that a prior conviction was supported by probable
cause. There is no risk of “two conflicting resolutions
arising out of the same or identical transactions.” Ibid.
(citation omitted). In Heck, the plaintiff sought relief
(damages) arising out of the same transaction (his prior
prosecution) that gave rise to his conviction under state
law. That suit therefore created a risk that federal and
state courts would reach different judgments as to the
propriety of the same prosecution. See ibid. Here, by
contrast, petitioner seeks relief (an injunction) relating
to a separate transaction (a future prosecution under
the same law). The relief he seeks “looks to the future”
rather than to any official actions in the past. Douglas
v. City of Jeannette, 319 U.S. 157, 165 (1943). His unchallenged prior conviction does not bar the possibility
of prospective relief against a future prosecution.
2. In reaching a contrary result, the court of appeals
acknowledged that the “classic example of a Heckbarred claim is one for money damages.” Pet. App. 7a.
The court, however, believed that this Court has “expanded Heck to bar declaratory and injunctive relief ”
when a petitioner has previously been convicted under
the challenged law (unless that conviction has already
been invalidated). Id. at 7a, 11a (citing Wilkinson v.
Dotson, 544 U.S. 74, 81-82 (2005)). That is incorrect.
Although this Court has limited the availability of prospective relief under Section 1983 when a suit poses a
conflict with the federal habeas statute, that line of
cases applies only where (unlike here) the plaintiff remains in custody.
a. This Court recognized in Preiser that the federal
habeas statute provides “the exclusive remedy” in federal court for a prisoner who “attack[s] the validity of
his confinement.” 411 U.S. at 489. The Court consid-
19
ered a challenge from state inmates seeking injunctive
relief that would compel the restoration of good-time
credits, which would in turn result in their immediate
release from prison. Id. at 482. The Court acknowledged the plaintiffs’ constitutional claims might fit
within Section 1983’s “literal terms.” Id. at 488. But it
held that “the specific federal habeas corpus statute”
was instead the “appropriate remedy for state prisoners
attacking the validity of the fact or length of their confinement.” Id. at 489, 490.
The Court has since extended Preiser to any suit
that “indirectly” attacks a prisoner’s “confinement”
through a “judicial determination that necessarily implies the unlawfulness of the State’s custody.” Wilkinson, 544 U.S. at 81. Accordingly, a state inmate cannot
use Section 1983 to challenge the procedures used to
deny him good-time credits if success in such a suit
would “necessarily imply the invalidity of the deprivation of his good-time credits,” and thus, of the “punishment imposed.” Edwards v. Balisok, 520 U.S. 641, 646,
648 (1997). Likewise, an individual in state custody cannot raise a claim through Section 1983 that would “necessarily imply the invalidity of his conviction.” Skinner
v. Switzer, 562 U.S. 521, 533 (2011) (citation and internal
quotation marks omitted). That includes when the
“challenge to his custody is that the statute under which
he stands convicted is unconstitutional.” Preiser, 411
U.S. at 485-486. In that circumstance, a “claim that necessarily demonstrates the invalidity of the conviction
* * * can be said to be attacking the fact or length of
confinement.” Heck, 512 U.S. at 481-482 (alterations
and quotation marks omitted). Relief in such a suit
would lead to “immediate or speedier release” from confinement; it therefore falls within the proper sphere of
20
habeas rather than Section 1983. Wilkinson, 544 U.S.
at 81.
But petitioner’s claim poses no conflict between Section 1983 and the habeas statute. 3 He is not in custody,
and he therefore does not directly seek relief that would
bring about his “immediate or speedier” release from
custody. Wilkinson, 544 U.S. at 81. Nor would success
in his suit indirectly bring about that relief, even if it
suggested a legal infirmity in his conviction. Because
petitioner is not confined, the suit can have no bearing
on the “validity of the fact or length of [any term of ]
confinement” pursuant to that conviction. Preiser, 411
U.S. at 490. Petitioner’s claim therefore falls outside
the “core of habeas,” id. at 489, and Preiser and its
progeny pose no bar to relief. That is presumably why
the Court in Wooley—which was decided several years
after Preiser—treated the plaintiff ’s prior convictions
as no barrier to his prospective challenge to the statute.
See pp. 13-14, supra.
b. The decision below therefore erred in holding that
petitioner’s prospective suit is barred because its success would “imply the invalidity” of a prior conviction,
even though petitioner is not (and was not) in custody.
Pet. App. 1a. The court of appeals grounded its holding
in federalism concerns about “the potential for conflictWhen petitioner brought suit, he was still subject to a ten-day
jail sentence, which remained suspended so long as he did not violate the ordinance for a period of one year. Pet. App. 31a. By the
time the district court dismissed the complaint, however, petitioner’s sentence was complete. The court of appeals accordingly
decided this case on the premise that petitioner was “not serving his
sentence,” id. at 10a, and the case reaches the Court on the same
assumption. The case accordingly provides no occasion to consider
whether Section 1983 affords prospective relief to a plaintiff who,
though not in custody, continues to serve a state sentence.
3
21
ing judgments” between federal and state courts. Id. at
7a (citation omitted). But when a plaintiff outside custody seeks prospective relief, this Court has accommodated principles of federalism through abstention. See
pp. 12-13, supra. A federal court may enjoin an ongoing
state prosecution only in “extraordinary circumstances.”
Younger, 401 U.S. at 43-45 (citation omitted). But Wooley
held that, if no state proceedings are pending, a plaintiff
outside custody may pursue “wholly prospective” relief
to enjoin future enforcement of the law, even if he has
previously been convicted under it. 430 U.S. at 711.
It is true that if a plaintiff with a prior conviction prevails in a facial challenge (or an as-applied challenge
that covers his past conduct), the federal-court decision
would imply a legal infirmity in his prior conviction. See
Pet. App. 10a. This Court, however, has distinguished
between federal intervention that is “ ‘designed to annul
the results of a state trial’ ” and relief meant to preclude
“prosecutions for future violations of the same statutes.” Wooley, 430 U.S. at 711 (citation omitted). The
former would impermissibly “deprive[] the States of a
function which quite legitimately is left to them.” Ibid.
(citation omitted). But when a federal court issues only
prospective relief to an individual outside custody, the
availability of any additional relief as to a past conviction depends on the State’s chosen remedies, including
whether the State chooses to allow habeas, expungement, clemency, or other post-conviction relief based on
the actions of federal courts. See, e.g., D.C. Code § 16802(a) (LexisNexis Supp. June 2025); Miss. Code Ann.
§ 99-39-5(1)(c) (West 2019). Such relief does not
threaten the comity and federalism interests that arise
22
when a federal court directly intervenes in a state-court
proceeding.4
And even under the court of appeals’ own rule, there
would be a risk that federal-court decisions will “imply
the invalidity” of state convictions. Pet. App. 1a. There
is no dispute that other plaintiffs, who have never been
convicted, may bring a pre-enforcement challenge to
the same law. If any of those plaintiffs were to succeed
on a facial challenge under Section 1983, the decision
would necessarily impugn the validity of all convictions
previously obtained under the provision. But to eliminate that inconsistency would mean that “no one could
ever [bring a facial] challenge [to] a law after any other
person had been convicted of violating it.” Id. at 51a
(Oldham, J., dissenting from the denial of rehearing en
banc). That plainly is not the law. This Court has long
permitted federal courts to enjoin state officials from
enforcing unconstitutional laws, see p. 12, supra, notwithstanding that the State may have previously obtained some convictions under the law.
Given that some plaintiffs may challenge the municipal ordinance at issue here, there is no basis to single
petitioner for special disadvantage solely because he
was previously convicted under the allegedly unconstitutional law. Each time an individual is subject to a
“credible threat of prosecution” under the law, he sufThe chance of further relief is also remote in this case. Petitioner has disclaimed any interest in “hav[ing] his record expunged”
or “annul[ling] any collateral effects [his] conviction[] may have.”
Wooley, 430 U.S. at 711; see Pet. App. 36a. He will presumably be
bound by that representation even if he ultimately prevails on his
Section 1983 claim. Moreover, the limitations period for challenging
his conviction under Mississippi law appears to have expired. See
Miss. Code Ann. § 99-39-5(2) (West 2019).
4
23
fers a new constitutional injury and, accordingly, has
new grounds for a challenge. Susan B. Anthony List,
573 U.S. at 158-159 (citation omitted); see Stanton v.
District of Columbia Ct. of Appeals, 127 F.3d 72, 78
(D.C. Cir. 1997) (“[E]ach successive enforcement of a
statute * * * creates a new cause of action.”). With
each threatened enforcement, a plaintiff faces the same
Hobson’s choice: “expose himself to actual arrest or
prosecution” or comply with “a statute that he claims
deters the exercise of his constitutional rights.” Steffel,
415 U.S. at 459.
A plaintiff at risk of future prosecution should not be
limited to challenging the constitutionality of the law in
connection with his past criminal proceeding. He may
have various reasons for forgoing such a challenge—
perhaps subsequent legal developments have made the
challenge stronger or perhaps the law imposes escalating penalties for repeat violations, as was true of the ordinance at issue here. See p. 5, supra. Although such a
plaintiff has forfeited the opportunity to challenge his
past conviction, the Heck bar does not deny him the “opportunity to challenge the statute prospectively so as to
avoid arrest and conviction for violating the same statute in the future.” Martin v. City of Boise, 920 F.3d 584,
614 (9th Cir.), cert. denied, 140 S. Ct. 674 (2019), abrogated on other grounds by City of Grants Pass v. Johnson, 603 U.S. 520 (2024). In that instance, the plaintiff
seeks nothing more than the relief available to any
other person with a credible fear of prosecution under
the statute—an injunction against future enforcement.
See p. 12, supra. Under this Court’s precedents, such a
claim is cognizable under Section 1983. 5
In her dissent from the denial of rehearing en banc, Judge Richman reserved the possibility that petitioner’s failure to raise a con5
24
II. IF THE COURT REACHES THE SECOND QUESTION
PRESENTED, IT SHOULD REJECT PETITIONER’S
PROPOSED RULE
Because the court of appeals improperly held that it
was bound by Heck to dismiss petitioner’s suit, this Court
should vacate the judgment below and remand for further
proceedings. Consistent with this Court’s usual practice,
it should decline to reach petitioner’s alternative argument (Br. 40-49) that, simply because he never had access
to federal habeas, Heck does not bar his Section 1983
claim. See, e.g., FCC v. Prometheus Radio Project, 592
U.S. 414, 427 n.3 (2021); Decker v. Northwest Envtl. Def.
Ctr., 568 U.S. 597, 615 (2013).
This case would also be a poor vehicle to address that
question. In seeking certiorari, petitioner correctly identified (Pet. 11-17) a disagreement among the courts of appeals as to whether a Section 1983 plaintiff who lacked access to federal habeas may properly pursue monetary
damages for an alleged abuse of process in a prior criminal proceeding. But petitioner has disclaimed any damages claim here, see p. 6, supra, and this case therefore
does not implicate the question whether Heck might preclude relief in that circumstance. And while petitioner
characterizes (Br. 5) the second question presented as
an “independent, alternative ground” for relief in his
case, he nevertheless acknowledges (Br. 47) that some
claims—i.e., “when a plaintiff seeks damages for constitutional defense during his prior criminal proceedings “may have
a preclusive effect in subsequent § 1983 litigation.” Pet. App. 44a
(footnote omitted). The court of appeals and district court, however,
dismissed petitioner’s claims “solely on the basis of the Heck bar.”
Id. at 44a-45a. This Court therefore may leave for remand whether
issue preclusion might “provide an independent basis” for dismissal.
Id. at 44a.
25
finement imposed pursuant to legal process”—might be
subject to Heck regardless of whether the plaintiff “now
(or always) lacked access to habeas.” Petitioner is correct that his claim is meaningfully “different,” as he
“seeks prospective relief against future prosecutions,”
ibid., but that argument explains why he should prevail
on the first question presented. See pp. 11-23, supra.
It is not an “independent” ground for relief. Pet. Br. 5.
If the Court nevertheless reaches the second question
presented, it should reject a categorical rule that Heck
is inapplicable to any plaintiff who did not previously
have access to federal habeas. The Heck rule governs
claims under Section 1983 that are analogous to the
common-law tort of malicious prosecution, whether or
not the plaintiff had the opportunity to pursue federal
habeas relief. Thus, if the Court concludes that petitioner has brought such a claim, but see pp. 16-18, supra, it should reject petitioner’s argument that Heck is
nonetheless inapplicable because he was never in custody.
A. The Application Of Heck Does Not Depend On Whether
The Plaintiff Previously Had Access To Federal Habeas
The favorable-termination requirement set forth in
Heck is rooted in the elements necessary to bring a particular type of claim under Section 1983. It does not depend on whether the petitioner is, or ever was, in state
custody.
1. The Court’s decision in Heck established the “accru[al]” date for claims under Section 1983 that are
analogous to the common-law tort of malicious prosecution, including the claim in that case, which sought
“damages attributable to an unconstitutional conviction
or sentence.” 512 U.S. at 489-490. Consistent with the
rule at common law, “[o]ne element that must be alleged
26
and proved in [such an] action is termination of the prior
criminal proceeding in favor of the accused.” Id. at 484.
Although the plaintiff in Heck was in custody, the
Court’s reasoning did not depend on his potential access
to habeas proceedings. Indeed, the Court acknowledged
that the plaintiff “could not ‘have sought and obtained’ ”
his preferred relief (monetary damages) “ ‘through federal habeas corpus proceedings.’ ” Heck, 512 U.S. at 481
(quoting Preiser, 411 U.S. at 488) (emphasis added). Instead, the Heck rule turns on the nature of the plaintiff ’s suit and whether the gravamen of his claim is the
same as that of a malicious-prosecution claim—that
“the plaintiff has improperly been made the subject of
legal process to his damage.” 2 Simon Greenleaf, A Treatise on the Law of Evidence 498 (9th ed. 1863). Thus,
when a plaintiff ’s claim challenges the improper initiation of criminal proceedings, the favorable-termination
requirement is a necessary element, regardless of
whether petitioner had access to federal habeas relief.
2. Petitioner offers a different understanding of
Heck. In his view (Pet. Br. 41-45), this Court adopted
the Heck rule to avoid a conflict between a general statute (Section 1983) and specific ones (for federal habeas).
Thus, petitioner contends (Br. 5) that Heck’s favorabletermination requirement has “no role to play for a
§ 1983 plaintiff * * * who was never in custody.”
Petitioner’s argument echoes that of Justice Souter,
who concurred in the judgment in Heck. Like petitioner, Justice Souter would have resolved the case
through “the interpretive methodology employed in
Preiser,” which precludes Section 1983 as a vehicle for
relief available in habeas. Heck, 512 U.S. at 497 (Souter,
J., concurring in the judgment). Under that rationale,
a plaintiff ’s custodial status would itself be dispositive:
27
When an individual in state custody seeks damages for
an unconstitutional conviction or confinement, the action, if successful, would “compel the State to release
the prisoner” and therefore supplant the federal habeas
remedy. Id. at 498. By contrast, individuals who “were
merely fined” or “completed short terms of imprisonment, probation, or parole” could still proceed under
Section 1983 because they are not “ ‘in custody’ ” and
“cannot invoke federal habeas jurisdiction.” Id. at 500.
The majority of the Court, however, expressly rejected Justice Souter’s approach. Heck, 512 U.S. at 490
n.10. As Justice Scalia’s opinion for the Court explained,
the reasoning underlying its opinion did not turn on the
“fortuity” of whether “a convicted criminal [remains] incarcerated.” Ibid. Instead, the Court adopted a “broad[]”
rule that applied to claims that are analogous to malicious prosecution. Id. at 489-490. Because the Court’s
reasoning does not depend on the availability of habeas,
“[e]ven a prisoner who has fully exhausted available
state remedies has no cause of action under § 1983 unless and until the conviction or sentence is reversed.”
Id. at 490. By extension, an individual who could never
access habeas also has no cause of action under Section
1983 until the underlying criminal case has terminated
in his favor.
Of course, when a plaintiff is in custody, the federal
habeas statute can pose an additional barrier to relief
under Section 1983. See Preiser, 411 U.S. at 489; see
also pp. 18-20, supra. Such a plaintiff cannot pursue relief, including prospective relief, that might directly or
indirectly challenge the fact or duration of his confinement, even though a plaintiff (like petitioner) who is no
longer in custody may proceed with claims under Section 1983 for injunctive or declaratory relief. See pp.
28
11-23, supra. But, whether in or out of custody, an individual who brings a claim under Section 1983 that is
analogous to malicious prosecution must establish each
element of the tort claim. Heck, 512 U.S. at 489-490.
Because favorable termination is one such element, a
plaintiff has no cognizable cause of action for damages
under Section 1983 unless and until he satisfies that requirement. See ibid.
B. Petitioner’s Contrary Arguments Are Unavailing
1. The courts of appeals that have adopted petitioner’s proposed rule did not consider themselves bound
by the Court’s “guidance” in Heck. Powers v. Hamilton
County Pub. Def. Comm’n, 501 F.3d 592, 601-603 (6th
Cir. 2007), cert. denied, 555 U.S. 813 (2008). In the years
following Heck, some “[m]embers of the Court * * *
expressed the view that unavailability of habeas * * *
may also dispense with the Heck requirement,” consistent with Justice Souter’s concurrence in the judgment. Muhammad v. Close, 540 U.S. 749, 752 n.2 (2004)
(per curiam); see Spencer v. Kemna, 523 U.S. 1, 21-23
(1998) (Ginsburg, J., concurring). Because the Court in
Muhammad cited that disagreement and observed that
the case before it provided “no occasion to settle the issue,” 540 U.S. at 752 n.2, some courts of appeals considered the question open even after Heck. See, e.g., Powers, 501 F.3d at 601-603; Cohen v. Longshore, 621 F.3d
1311, 1316-1317 (10th Cir. 2010). Petitioner, too, maintains (Br. 46) that the Court can disregard Heck’s reasoning, including footnote 10, as dicta to the extent it
addresses plaintiffs outside custody.
But this Court has never revisited or overruled its
decision in Heck, and the “reasoning underlying” its
holding remains “just as binding as the holding” itself.
Bucklew v. Precythe, 587 U.S. 119, 136 (2019); Seminole
29
Tribe of Florida v. Florida, 517 U.S. 44, 67 (1996) (“When
an opinion issues for the Court, it is not only the result
but also those portions of the opinion necessary to that
result by which we are bound.”). That reasoning, as explained, applies fully to a plaintiff outside custody who
brings under Section 1983 a claim analogous to malicious prosecution. See pp. 26-27, supra.
In any event, the Court’s later decisions have reinforced that the reasoning of Heck extends to individuals
who were never in state custody. In McDonough v.
Smith, 588 U.S. 109 (2019), the Court considered the
necessary elements of a Section 1983 claim that prosecutors used fabricated evidence to pursue charges on
which the plaintiff was ultimately acquitted. Id. at 112115. In addressing the statute of limitations, the Court
explained that the fabricated-evidence claim was analogous to “the common-law tort of malicious prosecution,”
which meant that it did not accrue, and could not be
brought under Section 1983, until the “favorable termination of the prosecution.” Id. at 116-117. The Court
recognized that McDonough’s case “differ[ed] from Heck
because the plaintiff in Heck had been convicted, while
McDonough was acquitted.” Id. at 119. But McDonough’s
claims “challenge[d] the validity of the criminal proceedings against him in essentially the same manner as
the plaintiff in Heck challenged the validity of his conviction.” Ibid. And though the plaintiff was never incarcerated, the civil suit implicated the same “pragmatic concerns” at issue in Heck, ibid., including the
“possibility of conflicting civil and criminal judgments,”
id. at 117-118. “The principles and reasoning of Heck
thus point[ed] toward a corollary result” in
McDonough: A defendant who has not been convicted
cannot bring an action under Section 1983 until “the
30
criminal proceeding has ended in the defendant’s favor.” Id. at 119-120 (citations omitted).
The Court reaffirmed that reasoning in Thompson v.
Clark, which involved a Section 1983 suit brought by an
individual who was detained for two days and whose
criminal charges were later dismissed before trial. See
596 U.S. at 39, 40. There, too, the plaintiff could not
have practically accessed federal habeas, as there was
no state-court judgment against him, 28 U.S.C. 2254(a),
and his time in “custody” lasted only two days, 28 U.S.C.
2241(c)(3). But the Court still recognized that malicious
prosecution was the appropriate common-law analogy.
See Thompson, 596 U.S. at 42. Thus, to maintain his
Section 1983 claim, such a plaintiff “must demonstrate,
among other things, that he obtained a favorable termination of the underlying criminal prosecution.” Id. at 39
(citing Heck, 512 U.S. at 484 & n.4); see id. at 44.
Petitioner cannot square his proposed rule with
those decisions. Because favorable termination is one
of “the elements of the malicious prosecution” claim,
Thompson, 596 U.S. at 44, a plaintiff who brings an
analogous claim under Section 1983 must meet that requirement, regardless of whether he could have pursued relief under federal habeas. That rule, contrary to
petitioner’s contention (Br. 32), is not “atextual.” The
Heck rule simply establishes when a plaintiff with such
a claim has a “complete and present cause of action” for
damages under Section 1983, and it does so without respect to that plaintiff ’s custodial status. McDonough,
588 U.S. at 119 (citation omitted).
2. Finally, some courts of appeals have adopted petitioner’s rule because they considered it “more just and
more in accordance with the purpose of § 1983.” Cohen,
621 F.3d at 1316. Those courts have expressed concern
31
that applying Heck when a plaintiff lacked access to federal habeas relief would “deny a[] federal forum for
claiming a deprivation of federal rights to those who
cannot first obtain a favorable state ruling.” Heck, 512
U.S. at 500 (Souter, J., concurring in the judgment).
This Court, however, has rejected the “principle that
every person asserting a federal right is entitled to one
unencumbered opportunity to litigate that right in a
federal district court.” Allen v. McCurry, 449 U.S. 90,
102-103 (1980). The Court, for example, has held that
issue preclusion applies when a Section 1983 plaintiff
“attempt[s] to relitigate in federal court issues decided
against them in state criminal proceedings,” even if that
plaintiff did not have the opportunity to fully litigate
those issues in federal habeas proceedings. Id. at 103.
Likewise, this Court has prohibited recovery under Section 1983 in suits brought against officials entitled to absolute immunity, Pierson v. Ray, 386 U.S. 547 (1967), or
qualified immunity, Mitchell v. Forsyth, 472 U.S. 511
(1985). In short, if the Court were to insist that Section
1983 “provide[s] a remedy for all conceivable invasions
of federal rights,” “the entire landscape of [its] § 1983
jurisprudence would look very different.” Heck, 512
U.S. at 490 n.10.
It is also inaccurate to equate “the favorabletermination element [with] ‘the blanket denial of any
federal forum.’ ” Wilson v. Midland County, 116 F.4th
384, 403 (5th Cir. 2024) (en banc) (citation omitted).
When a plaintiff can prove that element, he may proceed in federal court. When a plaintiff cannot satisfy
the requirement, he has no cause of action, but “[t]hat
is not the denial of any forum; it’s a specification of the
federal claim.” Ibid. In addition, even plaintiffs who
cannot satisfy the Heck requirement may still have re-
32
sort to federal court. For the reasons explained at pp.
11-23, supra, a plaintiff, like petitioner, who seeks to
challenge the constitutionality of a state or local law
may seek through Section 1983 injunctive or declaratory relief in federal court. Likewise, a plaintiff who
contends that his state conviction or sentence violates
the federal Constitution may seek to vindicate those
claims through direct review in this Court. See 28
U.S.C. 1257(a).
Petitioner’s rule, meanwhile, raises the “pragmatic
considerations discussed in Heck.” McDonough, 588
U.S. at 119. It would allow state defendants who were
never incarcerated to bring “a collateral attack on the
conviction through the vehicle of a civil suit,” at the risk
of creating inconsistent judgments with state courts.
Heck, 512 U.S. at 484 (citation omitted). It would also
create its own anomalies. When an individual is in custody pursuant to a conviction, all agree that he must
challenge his conviction through habeas, which requires
federal courts to afford significant deference to state
judgments. See 28 U.S.C. 2254(d)(1). By contrast, if an
individual were never in custody, petitioner would allow
federal courts to review de novo a defendant’s constitutional claims, freed from the same deference to state
courts. It is not clear why Congress would have made
damages more readily available to one whose allegedly
unconstitutional conviction did not result in any custodial sentence.
Precedent from this Court strikes a more sensible
balance. Plaintiffs may use Section 1983 to preclude
prospective enforcement of allegedly unconstitutional
laws. See pp. 11-23, supra. If an individual suffers
harm attributable to the alleged abuse of process in a
state criminal proceeding, he may seek damages if that
33
proceeding terminated in his favor. See Heck, 512 U.S.
at 489-490. And if a plaintiff remains subject to the most
severe deprivation of liberty—incarceration—he enjoys
an additional avenue of relief in federal court: He may
challenge an allegedly unconstitutional conviction or
sentence through habeas. 28 U.S.C. 2254. That framework adequately respects “concerns for finality and
consistency” in state criminal proceedings, Heck, 512
U.S. at 485, while ensuring that Section 1983 remains
an important “guarantor of basic federal rights against
state power,” Mitchum, 407 U.S. at 239.
CONCLUSION
The judgment of the court of appeals should be vacated and remanded.
Respectfully submitted.
D. JOHN SAUER
Solicitor General
HARMEET K. DHILLON
Assistant Attorney General
CURTIS E. GANNON
Deputy Solicitor General
JESUS OSETE
Principal Deputy Assistant
Attorney General
ASHLEY ROBERTSON
Assistant to the
Solicitor General
ANDREW BRANIFF
BRANT S. LEVINE
Attorneys
SEPTEMBER 2025
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.