# Appendix — Verniero v. Gibson (No. 05-779)

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0609%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2005

## Text

APPENDICES

. Opinion of U.S. Court of Appeals for the Third

Ces CEE TS, OD i o-vnc da beds ced puseecesd: la
Judgment of U.S. Court of Appeals for the Third

EE CURD BA MO ko hs dnc sete eescecneeve 45a
District Court Opinion and Order

1. Opinion of U.S. District Court for the District of
New Jersey (December 12, 2003) ............ 47a

2. Order of U.S. District Court of the District of
New Jersey (December 12, 2003) ............ 77a

. Third Circuit Denial of Rehearing En Banc
CAG Et, Beek Nee eecden es Sr ay 80a

Constitutional Provisions

5 Rhee Cre IS ET i'w Ca kncvenuscoueecees 82a
2. U.S. Const. amend. XIV, § 1.0... cece ceceees 83a
EL Ge. Ne Sy gerenen Sara ep ey yc 84a
G. Complaint and Jury Demand .................. 85a

. Superior Court of New Jersey, Law Division,
Criminal Action Affidavit in Support of Motion
to Vacate Conviction (April 19, 2002) .......... 109a

Order of Superior Court of New Jersey, Law
Division, Vacating Conviction and Dismissing
Indictment (April 19, 2002) .................. lila

la

APPENDIX A

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 04-1847

EMORY E. GIBSON, JR.
Appellant
v.

SUPERINTENDENT OF NEW JERSEY DEPARTMENT
OF LAW AND PUBLIC SAFETY-DIVISION OF
STATE POLICE; NEW JERSEY TURNPIKE AUTHORITY;
SEAN REILLY; J.W. PENNYPACKER;

PETER VERNIERO; RONALD SUSSWEIN;

JOHN FAHY; GEORGE ROVER; JOHN DOES 1-10;
TREASURER STATE OF NEW JERSEY

On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 02-cv-05470)
District Judge: Honorable Robert B. Kugler

Argued February 11, 2005

Before: BARRY, FUENTES, and VAN ANTWERPEN,
Circuit Judges

(Filed: June 15, 2005)

2a

OPINION'

VAN ANTWERPEN, Circuit Judge

Emory Gibson, Jr. appeals from two orders of the District
Court which effectively dismissed his § 1983 action in its
entirety. According to Gibson, in 1992 he was traveling on the
New Jersey Turnpike when he was unlawfully stopped,
searched and arrested by two New Jersey State Police Troopers.
Gibson alleges that the stop and search were part of a pattern of
racially discriminatory law enforcement practices undertaken
by the New Jersey State Police. Ten years after his initial stop
and eight years after his conviction, Gibson was released from
prison after newly obtained evidence suggested that his initial
stop was tainted by racial animus. He subsequently brought this
action against the New Jersey State Police (“NJSP”)
Superintendent;? J.W. Pennypacker and Sean Reilly,’ the
individual NJSP Troopers who originally arrested him; former
New Jersey Attorney General Peter Verniero; former Deputy
Attorneys General Ronald Susswein, John Fahy, and George
Rover;* the New Jersey Turnpike Authority; the Treasurer of

' This Opinion represents the Opinion of the Court on all issues
except the discussion of the Fourth Amendment claims in Part [I.A. The
Opinion of the Court on those issues is contained in the Opinion of Judge
Fuentes filed herewith (hereinafter referred to as “Judge Fuentes’s

Opinion”).

2 The claim against the Superintendent was for injunctive relief
only.

3 J. W. Pennypacker and Sean Reilly are collectively referred to as
“the Troopers.”

We refer to Peter Verniero, Ronald Susswein, John Fahy, and
George Rover collectively as the “Attorney General defendants.”

3a

New Jersey; and several unnamed “John Doe” individuals who
allegedly aided in the illegal search or the suppression of
evidence.

In federal claims brought under 42 U.S.C. §§ 1983 and
1985, Gibson alleged that the defendants violated his right of
access to the courts, his Fourth Amendment right to freedom
from illegal search and seizure, and his Fourteenth Amendment
right to equal protection under the law. He also alleges that the
defendants conspired to violate these rights and conspired
against him on account of his race. Additionally, Gibson
brought several claims under state law. The District Court
dismissed all of the claims as set forth below.

I. FACTUAL BACKGROUND AND
PROCEDURAL HISTORY

The following facts are taken from Gibson’s Complaint.
Because we are reviewing the grant of a motion to dismiss, we
take these allegations as true and view them in a light most
favorable to the appellant. Christopher v. Harbury, 536 U.S.
403, 406 (2002).

Emory Gibson, Jr. is an African-American male. On
October 28, 1992, Gibson was sitting in the rear seat of a
vehicle occupied by two other African-American men, traveling
southbound on the New Jersey Turnpike. At approximately
4:20 a.m., New Jersey State Police Troopers Pennypacker and
Reilly pulled their marked NJSP cruiser behind the car in which
Gibson was traveling and activated the cruiser’s warning lights;
the driver promptly pulled over. Without a warrant, the
Troopers searched the vehicle and then searched and arrested
Gibson. Gibson and the other occupants of the vehicle were
charged with various offenses after the Troopers discovered
illegal drugs in the car. Gibson alleges that the Troopers
stopped the car and conducted the search without probable

cause.

4a

Gibson was tried on April 20 and 21, 1994. He was found
guilty on two counts of drug-related offenses and sentenced to
fifty years in prison. At trial, the prosecution relied on the
testimony of Troopers Pennypacker and Reilly, as well as
Dennis Tully, who testified as an expert on drug interdiction
_ and valuation. According to Gibson, impeachment evidence
existed at that time which showed that Trooper Tully had a
“monthly African-American arrest rate on the Turnpike.”
(Appellant App. at A-93.)

In 1996, the Superior Court of New Jersey in State v. Soto,
734 A.2d 350, 360 (N.J. Super. Ct. Law Div. 1996), determined
that NJSP Troopers were racially profiling drivers on the New
Jersey Turnpike and targeting African-Americans for stops.
Citing Soto, Gibson filed a petition for post-conviction relief
and requested discovery on February 18, 1999. On February 8,
2000, the Superior Court, Law Division, denied the request for
post-conviction relief, in part because Gibson did not allege
sufficient evidence of racial profiling or the illegality of his
stop and arrest.

Later, on January 29, 2002, the Superior Court of New
Jersey, Appellate Division, reversed Gibson’s conviction
because exculpatory material uncovered in November 2000
tended to show that he was illegally stopped and arrested. On
April 19, 2002, Gibson’s Motion to Dismiss and Vacate the
Conviction of Plaintiff was granted because there was a
colorable basis to believe that Gibson was stopped and arrested
as a result of unlawful racial profiling.

On November 14, 2002, Gibson filed a Complaint in the
United States District Court for the District of New Jersey, in
which he made six claims. Counts One, Two and Three were
brought under 42 U.S.C. § 1983. In Count One, Gibson claimed
that the defendants’ unconstitutional acts denied him effective
access to the courts and resulted in his unconstitutional

5a

conviction and imprisonment. In Count Two, he sought
injunctive relief from the NJSP Superintendent’ and in Count
Three, he alleged that the defendants “conspired to violate
Plaintiffs civil rights, namely the rights to meaningful access to
the courts and the right to be free from unconstitutional
conviction and imprisonment.” (Appellant App. at A-103.) In
Count Four, Gibson alleged that the defendants were liable
under 42 U.S.C. § 1985 for conspiring “to violate the civil
rights of Plaintiff herein based on his race.” (/d. at A-103 to
A-104.) Counts Five and Seven (there was no Count Six) were
state law claims.

Appellees moved to dismiss all of the counts, arguing that
they were time-barred, and that several of the defendants were
entitled to Eleventh Amendment immunity, prosecutorial
immunity and qualified immunity. On December 12, 2003, the
District Court dismissed as time-barred Gibson’s
“constitutional claims for selective enforcement and failure to
train (as well as any claims that reasonably can be construed to
plead violations of the Fourth Amendment and malicious
prosecution).” (Appellant App. at A-36.) The District Court
also dismissed the claim against the defendant Treasurer of
New Jersey and ordered further briefing and argument on the
issue of qualified immunity as to the surviving claims. On
February 24, 2004, the District Court dismissed the remaining
claims. Gibson timely appealed.

Consistent with this opinion and the Judge Fuentes’s
Opinion, we will reverse, and allow Gibson to proceed with his
claims brought under 42 U.S.C. § 1983 in Count One alleging
that the Troopers unconstitutionally searched and seized
Gibson in violation of the Fourth Amendment, and subjected
him to selective enforcement of the laws in violation of the

§ Gibson’s counsel stated at oral argument that they are no longer
pursuing this claim.

6a

Equal Protection Clause of the Fourteenth Amendment. We
will also reinstate the 42 U.S.C. §§ 1983 and 1985 conspiracy
claims in Counts Three and Four, and the state law claims in
Counts Five and Seven.

Il. JURISDICTION AND STANDARD OF REVIEW

The District Court had subject matter jurisdiction pursuant
to 28 U.S.C. § 1331 (2005). This Court has jurisdiction over
the final order and judgment pursuant to 28 U.S.C. § 1291
(2005). We exercise plenary review over both the District
Court’s dismissal of a claim on statute of limitations grounds
under Fed. R. Civ. P. 12(b)(6) and its grant of qualified
immunity. Leveto v. Lapina. 258 F.3d 156, 161 (3d Cir.2001).

Ill. ANALYSIS

The nature of Gibson’s multiple claims in Count One is
somewhat difficult to ascertain so we begin by examining the
complaint.° Count One was brought under 42 U.S.C. § 1983

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

81. Defendants, under the color of state law, deprived Plaintiff
of his constitutional and civil right to meaningful access to
the courts, derived from Article [V, the First, Fifth, Sixth
and Fourteenth Amendments to the United States
Constitution, and the right to be free from an
unconstitutional conviction and imprisonment by, among

other things:

+ Detaining Plaintiff without probable cause;
Searching and seizing the car Plaintiff was in without
probable cause;

- Searching Plaintiff without probable cause;

- Arresting Plaintiff without probable cause;

Falsely imprisoning Plaintiff;
Improperly denying Plaintiff access to fair and

7a

meaningful judicial proceedings during his criminal
trial, subsequent post-conviction proceedings and
separate civil suits by suppressing evidence beneficial
to Plaintiff in violation of Brady v. Maryland, similar
state law and ethical] duties;

- Depriving Plaintiff of his constitutional right to equal.
protection of the laws;

- Imprisoning Plaintiff unconstitutionally for a charge
later vacated by motion of the State;

- Failing to train subordinates;

- Failing to supervise/control subordinates;

- Failing to correct the unconstitutional/discriminatory
practices of subordinates;

- Continually condoning and ratifying a history of
unconstitutional/discriminatory acts despite numerous
allegations over the years of discrimination based on
race;

- Improperly screening, hiring, training, supervising,
disciplining and retaining dangerous police officers.

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

Act, 42 U.S.C. § 1983 for a violation of one’s civil and
constitutional rights under the color of Statelaw.

83. But for the Defendants’ unjawful acts, Plaintiff would not
have been denied meaningful access to the courts in his
criminal proceedings and post-conviction relief
proceedings; and would have been able to bring a civil
cause of action against Defendants for Plaintiffs civil rights
violations.

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

denied Plaintiff his right to access the courts, Plaintiff
cannot seek remedy by way of causes of action mentioned
in the previous paragraph since they are either time barred
or moot.

which provides a cause of action against a person who, acting
under color of state law, deprives another of a constitutional or
federal right. Thus, to state a claim under § 1983, Gii'son must
indicate: (1) of what constitutional or federal nght “ was
deprived, and (2) how he was deprived of that right under color
of state law. 42 U.S.C. § 1983 (2005); Basista v. Weir, 340
F.2d 74, 79 (3d Cir. 1965).

The first step in evaluating a § 1983 claim is to identify the
specific constitutional right infringed. Albright v. Oliver. 510
U.S. 266, 271 (1994) (Rehnquist, C.J., plurality opinion). It
appears that in Count One, Gibson’s Complaint alleges two
main claims of constitutional deprivation: (1) defendants
denied Gibson access to the courts by suppressing exculpatory
information, and (2) defendants violated Gibson’s “right to be
free from an unconstitutional conviction and imprisonment.”
(Appellant App. at A-100 to A-101.) The Complaint then
alleges a litany of constitutional violations which underlie the
main claims, Jd. at A-101 to A-102.

The main claim of denial of access to the courts is well
recognized and actionable. Christopher, 536 U.S. at 415 n.12.
However, standing alone without more supporting detail,
Gibson’s other main claims concerning his right to be free from

85. Asa proximate result of the aforementioned acts. Plaintiff
has b,en damaged and has suffered severe emotional
injuries, including mental distress and anguish.

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

9a

unconstitutional conviction and imprisonment’ appear to be
more in the nature of legal conclusions or merely a description
of the type of harm Gibson allegedly suffered. Recognizing
this, the District Court read Count One of the Complaint as
alleging a denial of access to the courts claim, as well as
individual claims under the Fourth and Fourteenth
Amendments. (Appellant App. at A-20 to A-28.) Specifically,
Gibson claimed that his constitutional rights were violated: (A)
when Troopers Pennypacker and Reilly searched and seized
Gibson on the New Jersey Turnpike 1n violation of the Fourth
Amendment, (B) when the Troopers racially profiled Gibson
and thereby subjected him to discriminatory enforcement of the
law in violation of th Equal Protection Clause of the Fourteenth
Amendment, (C) when the Troopers and Attorney General
defendants denied him effective access to the courts by
suppressing exculpatory evidence, and (D) when the NJSP and

7 At the outset, we note that Gibson was not pursuing a malicious
prosecution claim. (Appellant App. at A-22). lt appears that Gibson may
have simply quoted the phrase “unconstitutional conviction or
imprisonment” from the Supreme Court’s holding in Heck v. Humphrey, 512
U.S. 477, 486-87 (1994), which held that “to recover damages for 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 tc make such determination, or called into
question vy a federal court’s issuance of a wr* of habeas corpus, 28 U.S.C.
§ 2254.” (footnote omitted) (emphasis added).

As noted infra, Heck holds that the statute of limitations on certain
claims does not run until the underlying conviction is set aside. However,
Gibson cannot avoid the statute of limitations applicable to § 1983 claims
not covered by Heck by merely cloaking such claims in the “right to be free
from an unconstitutional conviction and imprisonment.” With the possible
exception of malicious prosecution claims, such cloaking would, in effect,
nullify the statute of limitations for all of Gibson’s § 1983 claims, and we
believe this is why the District Court read the Complaint as it did.

10a

the New Jersey Turnpike Authority (““NJTA”) failed to properly
train and discipline the Troopers in question. /d. The parties did
not dispute this characterization of the Complaint in their briefs
or at oral argument, thus we will interpret the Complaint in this
way.

A. Fourth Amendment Claims

We begin by addressing Gibson’s claim that the Troopers
violated his Fourth Amendment rights.’ The District Court
concluded that all of the various ways by which Gibson alleges
his Fourth Amendment rights were violated were barred by the
statute of limitations.

An action brought under 42 U.S.C. § 1983 is subject to the
state statue of limitations that governs actions for personal
injury. Cito v. Bridgewater Township Police Dep't. 892 F.2d
23, 25 (3d Cir. 1989). “In New Jersey that statute is N.J.S.A.
2A: 14-2, which provides that an action for an injury to the
person caused by a wrongful act, neglect, or default, must be
convened within two years of accrual of the cause of action.”
Id. (quoting Brown v. Foley, 810 F.2d 55, 56 (3d Cir. 1987))
(internal quotation marks omitted). Although state law governs
the limitations period, it is federal law that governs the accrual
of § 1983 claims. Montgomery v. De Simone. 159 F.3d 120,
126 (3d Cir. 1998).

° The Fourth Amendment states:

The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated, and no Warrants shall
issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.

U.S. Const. amend. [V.

lla

Generally, “the limitations period begins to run from the
time when the plaintiff knows or has reason to know of the
injury which is the basis of the section 1983 action.” Jd. at 126
(quoting Genty v. Resolution Trust Corp., 937 F.2d 899, 919
(3d Cir. 1991)) (internal quotation marks omitted). However,
this rule does not apply when a plaintiff brings a § 1983 action
that, if successful, would demonstrate that the plaintiff's
underlying criminal conviction or imprisonment is invalid.
Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). In such a
situation, no cause of action arises until the conviction or
sentence is invalidated, and the statute of limitations does not
begin to run until the time of such invalidation. /d. at 489. In
the case before us, the arrest, and other multiple alleged illegal
acts all occurred more than two years before this suit was
brought, and therefore all would be barred by the two-year
statute of limitations. The dispute between the parties is
whether or not these claims are saved froin being untimely
because they fall under the Heck delayed accrual rule, and did
not accrue until Gibson’s conviction was set aside in 2007.

In Heck v. Humphrey, Heck brought a § 1983 suit while his
criminal appeal was pending. Jd. at 479. Heck alleged
numerous constitutional violations in the conduct of his trial,
and requested compensatory and punitive money damages, but
no injunctive relief. Jd. The Supreme Court concluded that such
a claim was not cognizable under § 1983 until Heck’s
conviction or sentence had been invalidated, not because there
was an exhaustion requirement, but simply because no claim
existed until that time. /d. at 489. As the Court explained, “to
recover damages for allegedly unconstitutional conviction or
imprisonment, or for other harm caused by actions whose
unlawfulness would render a conviction or sentence invalid, a
§ 1983 plaintiff must prove that the conviction or sentence has
been reversed on direct appeal, expunged by executive order,
declared invalid by a state tribunal authorized to make such

12a

determination, or called into question by a federal court’s
issuance of a writ of habeas corpus, 28 U.S.C. § 2254.” Id. at
486-87 (footnote omitted).

Nevertheless, the Supreme Court in Heck was careful to
explain that not all constitutional claims arising from an arrest
and prosecution are the kind that are subject to the deferred
accrual rule. Some claims would not necessarily invalidate a
conviction. The Court laid particular emphasis on Fourth
Amendment claims in footnote seven, explaining:

For example, a suit for damages attributable to an
allegedly unreasonable search may lie even if the
challenged search produced evidence that was
introduced in a state criminal trial resulting in the §
1983 plaintiff's still-outstanding conviction. Because
of doctrines like independent source and inevitable
discovery, see Murray v. United States, 487 U.S. 533,
539 (1988), and especially harmless error, see Arizona
v. Fulminante, 499 U.S. 279, 307-308 (1991), such a
§ 1983 action, even if successful, would not
necessarily imply that the plaintiffs conviction was
unlawful. In order to recover compensatory damages,
however, the § 1983 plaintiff must prove not only that
the search was unlawful, but that it caused him actual,
compensable injury, see Memphis Community School
Dist. v. Stachura, 477 U.S. 299, 308 (1986), which,
we hold today, does not encompass the “injury” of
being convicted and imprisoned (until his conviction
has been overturned).

Heck, 512 U.S. at 487.

This Court dealt with the applicability of Heck in
Montgomery v. De Simone, 159 F.3d at 126. In Montgomery,
the plaintiff Rosemary Montgomery was arrested and charged
with speeding, drunk driving, and refusing to take a

13a

breathalyser test. /d. at 123. At her municipal hearing, she
introduced evidence that she was not drunk or speeding, and
that at the time of her arrest, the arresting officer had
propositioned her. /d. at 122-23. Although a municipal judge
found her guilty, later the Superior Court of New Jersey, in a
trial de novo, reversed the convictions. /d. at 123. After her
convictions were overturned, she brought an action against the
arresting officer in the United Siates District Court for false |
arrest and false imprisonment. Jd. The District Court ruled that
her claims accrued at her arrest and were time-barred by the
statute of limitations. Jd.

In affirming the dismissal, this Court explained that “[i]t
is axiomatic that under federal law, which governs the accrual
of section 1983 claims, the limitations period begins to run
from the time when the plaintiff knows or has reason to know
of the injury which is the basis of the section 1983 action... .
Accordingly, under Gentry, [sic] the two-year limitation period
for Montgomery’s section 1983 false arrest and false
imprisonment claims began to run on September 30, 1992, the
night of Montgomery’s arrest and detention.” Jd at 126
(internal quotation marks omitted). In a footnote, we explained
that Montgomery’s claim was not subject to the Heck accrual
rule:

Montgomery argues that under Heck v. Humphrey,
512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383
(1994), these claims only accrued after her criminal
charges were resolved in her favor. In Heck, the Court
held that a section 1983 claim for damages
attributable to an unconstitutional conviction or
sentence does not accrue until that conviction or
sentence has been invalidated. Heck, 512 U.S. at
489-90, 114 S.Ct. 2364. The Court also noted,
however, that if a successful claim would not
demonstrate the invalidity of any outstanding criminal

l4a

judgment, it should be allowed to proceed. Jd. at 487,

114 S.Ct. 2364. Because a conviction and sentence
may be upheld even in the absence of probable cause
for the initial stop and arrest, we find that
Montgomery’s claims for false arrest and false
imprisonment are not the type of claims contemplated
by the Court in Heck which necessarily implicate the
validity of a conviction or sentence. See Mackey v.
Dickson, 47 F.3d 744, 746 (Sth Cir. 1995) (stating that
“i]t is well established that a claim of unlawful arrest,
standing alone, does not necessarily implicate the
validity of a criminal prosecution following the
arrest.”). Accordingly, we read Heck to be consistent
with our determination that Montgomery’s false arrest
and false imprisonment claims accrued on the night of
her arrest.

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

Gibson’s Complaint lists multiple Fourth Amendment

claims? including claims that Troopers Pennypacker and Reilly
violated his rights by detaining and arresting him without
probable cause and falsely imprisoning him. We view these
claims as claims of false arrest or imprisonment. See

by:

Gibson claims that the Troopers violated the Fourth Amendment

- Detaining Plaintiff without probable cause;

Searching and seizing the car Plaintiff was in without
probable cause;

- Searching Plaintiff without probable cause;
- Arresting Plaintiff without probable cause;
- Falsely imprisoning Plaintiff,

(Appellant App. at A-101.)

15a

Porterfield v. Lott, 156 F.3d 563, 568 (4th Cir. 1998)
(“[A]llegations that a warrantless arrest or imprisonment was
not supported by probable cause advanced a claim of false
arrest or imprisonment... .”). Montgomery, 159 F.3d at 126
n.5, states that “[b]ecause a conviction and sentence may be
upheld even in the absence of probable cause for the initial stop
and arrest, . . . claims for false arrest and false imprisonment
are not the type of claims contemplated by the Court in Heck.”
We view this language as sufficient to clearly exclude Gibson’s
Fourth Amendment claims of false imprisonment, and arrest
and detention without probable cause from the Heck deferred
accrual rule.

Other circuits have taken a position similar to our decision
in Montgomery. See Beck v. City of Muskogee Police Dep't,
195 F.3d 553, 558 (10th Cir. 1999) (holding that arrest,
interrogation, and search and seizure claims accrue when they
actually occur and Heck does not affect them because ultimate
success on them would not necessarily question the validity of
a conviction); Simmons v. O’Brien, 77 F.3d 1093, 1095 (8th
Cir. 1996) (the admission of a coerced confession is similar to
the admission of illegally seized evidence which does not
necessarily imply the invalidity of a conviction, thus a cause of
action accrues immediately).'°

'© Gibson argues that we should engage in a fact-intensive analysis
of each of his claims to determine if they would necessarily imply that his
underlying conviction is unlawful. To be certain, some courts have engaged
in a fact-intensive analysis of each claim. Wiley v. City of Chicago, 361 F.3d
994, 997 (7th Cir. 2004) (“Heck may in fact occasionally bar a civil rights
claim premised on a false or wrongful arrest.”); Ballenger v. Owens, 352
F.3d 842, 846 (4th Cir. 2003) (holding on facts similar to this case that when
evidence seized in violation of the Fourth Amendment is the only evidence
underlying a conviction, a successful civil challenge would necessarily
imply the invalidity of the conviction); Hughes v. Lott, 350 F.3d 1157,
1161(1 1th Cir. 2003); Harvej: v. Waldron, 210F.3d 1008, 1015 (9th Cir.
2000); Covington v. City of New York, 171 F.3d 117, 119 (2d Cir. 1999)

l6a

After a thorough review of Heck, I conclude that Gibson’s
Fourth Amendment claims that he was searched and the car
was searched and seized without probable cause are not subject
to the Heck deferred accrual rule because they do not
necessarily imply that Gibson’s underlying state court
conviction was unlawful. Heck, 512 U.S. at 487. Heck was an
attempt by the Supreme Court to reconcile federal habeas
corpus law with § 1983 civil claims. In Preiser v. Rodriguez,
411 U.S. 475, 500 (1972), a forerunner of Heck, the Supreme
Court rejected the premise that a person could circumvent
federal habeas corpus exhaustion requirements by merely

(supporting a fact-based inquiry); Hudson v. Hughes, 98 F.3d 868, 872 (Sth
Cir. 1996) (plaintiff may not sue for an unlawful seizure if success would
imply that the only evidence of the crime must be suppressed).

We did not engage in such a fact-intensive analysis in Montgomery v.
De Simone, and we note that the Tenth Circuit expressly rejected such an
approach in Beck v. City of Muskogee Police Dep't, \95 F.3d 553, 559 n.4
(10th Cir. 1999). Moreover, the fact-intensive approach would require us to
answer difficult questions about what might have happened in lower court
criminal proceedings. Heck prohibits civil actions which would question the
validity of underlying criminal convictions and we are not inclined to do that
in order to determine whether or not Heck is applicable.

Even if we were to adopt the fact-intensive analysis Gibson argues for,
we could not conclude that exclusion of the evidence in this case would
necessarily have invalidated Gibson’s underlying state-court conviction. We
cannot say what other evidence of guilt may have been present or whether
there may have been a valid reason for stopping the vehicle other than race.
The Supreme Court in Heck noted the possible applicability of other
doctrines such as independent source, inevitable discovery, and harmless
error. Heck, 512 U.S. at 487 n.7.

We have before us only nine pages of the trial court record and on this
record we are unable to determine what caused the police to stop the vehicle.
In particular, it is difficult to support conclusion in Judge Fuentes’s Opinion
that the only evidence supporting the criminal conviction was obtained as
aresult of an unlawful racial profiling stop. In fact, at oral argument counsel
suggested that the car in which Gibson was traveling violated the motor
vehicle code.

17a

seeking injunctive relief in a § 1983 action. Preiser “held that
habeas corpus is the exclusive remedy for a state prisoner who
challenges the fact or duration of his confinement and seeks
immediate or speedier release, even though such a claim may
come within the literal terms of § 1983.” Heck, 512 U.S. at 481.
However, Preiser left open the question of what happens when
a person seeks only monetary relief in a § 1983 suit, but would
nonetheless demonstrate the invalidity of his or her conviction
if successful. Jd. Heck dealt with this question.

In Heck, the Court specified that it was operating at the
intersection of the Civil Rights Act and the federal habeas
corpus statute, /d. at 480, as it addressed “the question posed by
§ 1983 damages claims that do call into question the lawfulness
of conviction or confinement,” but do not seek equitable relief,
id. at 483. Accordingly, we doubt that the Court had Fourth
Amendment claims in mind when it spoke of claims that
“would necessarily imply the invalidity of [a] conviction or
sentence.” Jd. at 487. We say this because although habeas
corpus claims may be premised on many different
constitutional violations, they may not be based upon violations
of the Fourth Amendment “where the State has provided an
opportunity for full and fair litigation of a Fourth Amendment
claim.” Stone v. Powell, 428 U.S. 465, 482 (1976).

“* A claim of illegal search and seizure under the Fourth
Amendment is crucially different from many other
constitutional rights; ordinarily the evidence seized can in no
way have been rendered untrustworthy by the means of its
seizure and indeed often this evidence alone establishes beyond
virtually any shadow of a doubt that the defendant is guilty.’”
Id. at 490 (quoting Kaufman v. United States, 394 U.S. 217,
237 (1969) (Black J., dissenting)). The exclusionary rule is a
judicially created remedy for criminal cases meant to deter
deprivations of the Fourth Amendment, but it is not itself a
personal constitutional right of the aggrieved party. United

States v. Calandra, 414 U.S. 338, 348 (1974). Therefore, as the
Supreme Court has explained, “[w]hether_the exclusionary
sanction is appropriately imposed in a particular case, our
decisions make clear, is ‘an issue separate from the question
whether the Fourth Amendment rights of the party seeking to
invoke the rule were violated by police conduct.”” United
States v. Leon, 468 U.S. 897, 906 (1984) (quoting J//inois v.
Gates, 462 U.S. 213, 223 (1983)).

A court in a civil action can decide that an individual was
subjected to an illegal search or seizure without reaching the
issue of whether the evidence found pursuant to that act should
have been excluded from the criminal trial. Although a
successful Fourth Amendment civil claim might suggest that
certain evidence should have been excluded at a criminal trial,
that issue will never be reached in the civil context and
therefore, the successful civil claim will not necessarily imply
the invalidity of the underlying criminal conviction.”"’

Footnote six in the Heck opinion demonstrates a narrow
exception to the general statement in footnote seven that a

“Judge Fuentes’s Opinion ignores this point, and instead surmises
that because Gibson’s conviction rests solely on evidence discovered during
his arrest, success on Gibson’s false arrest claim would “necessarily imply”
that he was improperly convicted. Op. of Fuentes, J. at 10. However, this
does not square with the Supreme Court’s admonition that the exclusionary
rule is not a personal constitutional right. Stone v. Powell, 428 U.S. 465,
480-8] (1976). “[A] Fourth Amendment violation is ‘fully accomplished’
by the illegal search or seizure, and no exclusion of evidence from a judicial
or administrative proceeding can ‘cure the invasion of the defendant's rights
which he has already suffered.’ Pa. Bd. of Prob. & Parole v. Scott, 524 U.S.
357, 362 (1998) (quoting United States v. Leon, 468 U.S. 897, 906 (1984)).
Thus, “the State’s use of evidence obtained in violation of the Fourth
Amendment does not itself violate the Constitution.” /d. It is therefore hard
to understand how we can decide, in a collateral matter, that New Jersey's
introduction of evidence obtained in violation of the Fourth Amendment
would necessarily invalidate Gibson's conviction.

19a

successful Fourth Amendment claim “would not necessarily
imply that the plaintiff's conviction was unlawful,” Heck, 512
U.S. at 487 n.7. As footnote six'? explains, where a successful
Fourth Amendment violation would actually “negate an
element of the offense of which [the plaintiff] has been
convicted” the claim undermines the charge under which the
defendant was convicted, as contrasted with merely
undermining evidence supporting the underlying conviction. /d.
at 487 n.6. This narrow exception is not present in the case
before us.

2 Footnote 6 states:

An example of this latter category—a § 1983 action that
does not seek damages directly attributable to conviction or
confinement but whose successful prosecution would
necessarily imply that the plaintiffs criminal! conviction was
wrongful—would be the following: A state defendant is
convicted of and sentenced for the crime of resisting arrest,
defined as intentionally preventing a peace officer from
effecting a /awful arrest. (This is a common definition of
that offense. See People v. Peacock, 68 N.Y.2d 675, 505
N.Y.S.2d 594, 496 N.E.2d 683 (1986); 4 C. Torcia,
Wharton’s Criminal Law § 593, p. 307 (14thed. 1981).) He
then brings a § 1983 action against the arresting officer,
seeking damages for violation of his Fourth Amendment
right to be free from unreasonable seizures. In order to
prevail in this § 1983 action, he would have to negate an
element of the offense of which he has been convicted.
Regardless of the state Jaw concerning res judicata, see n.2,
supra, the § 1983 action will not lie.

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

20a

For the reasons stated above, I would affirm the dismissal
ofall claims seeking damages for violations of Gibson’s Fourth
Amendment rights as these claims are time-barred.”

B. Fourteenth Amendment Claims

Gibson also challenges the District Court’s dismissal of his
claim in Count One that Troopers Pennypacker and Reilly
subjected him to racially selective law enforcement practices in

Tam troubled by the statement in Judge Fuentes’s Opinion that,
“Viewing the evidence in the light most favorable to Gibson, his car was
stopped because of a pattern and practice of racial profiling, not because
police had reasonable suspicion to believe a crime was being committed.”
Op. of Fuentes, J. at 9. The record is incomplete at this point and the
question of whether Gibson's car was stopped for racially motivated reasons
is completely distinct from the question of whether the police had probable
cause for the stop. Whren v. United States, 517 U.S. 806, 813 (1996). The
constitutional reasonableness of a traffic stop does not depend on the intent
of the officers involved and therefore, the officers’ racially discriminatory
motivations cannot invalidate an objectively reasonable stop. /d. As long as
the officers had probable cause for believing that a traffic violation
occurred, the stop was reasonable. /d at 810.

Furthermore, this issue appears to have been already litigated at the
state court level. “State courts unquestionably have power to render
preclusive judgments regarding the Fourth Amendment’s prohibition of
unreasonable searches and seizures.” Linnen v. Armainis. 991 F.2d 1102,
1108 (3d Cir. 1993). Indeed, even if the state court was wrong in its
determination on those Fourth Amendment issues, Gibson is still precluded
from relitigating the issue. 18 C. Wright, A. Miller, & E. Cooper,
Jurisdiction and Related Matters § 4416.

2la

violation of the Equal Protection Clause of the Fourteenth
Amendment."* This requires a wholly different analysis.

Relying on Whren v. United States, 517 U.S. 806 (1996),
the District Court reasoned that Gibson’s claim for selective
enforcement is not subject to the Heck deferred accrual rule
because success on this claim would not necessarily have called
into question his conviction. In Whren, 517 U.S. at 813, the
Supreme Court held that police can temporarily detain a
motorist when they have probable cause to believe that he
violated a traffic ordinance, even if the police have some other
motivatior to stop the motorist. However, the Court in Whren
expressly limited its analysis to the Fourth Amendment, and
acknowledged that “the Constitution prohibits seiective
enforcement of the law based on considerations such as race.
But the constitutional basis for objecting to intentionally
discriminatory application of laws is the Equal Protection
Clause, not the Fourth Amendment’”’ /d.

As we explained in Carrasca v. Pomeroy, 313 F.3d 828,
836 (3d Cir. 2002), “[t]he fact that there was no Fourth
Amendment violation does not mean that one was not
discriminatorily selected for enforcement of a law. Plaintiffs’
equal protection claims under the Fourteenth Amendment
require a wholly separate analysis from their claims under the
Fourth Amendment.” (internal citations omitted.)

'* Section One of the Fourteenth Amendment states in relevant part:

No State shal] make or enforce any law which shall abridge
the privileges or immunities of citizens of the United States;
nor shall any State deprive any person of life, liberty, or
property, without due process of law: nor deny to any
person within its jurisdiction the equal protection of the
laws.

U.S. Const. Amend. XIV, § 1.

22a

Wiren and Carrasca stand for the proposition that, even
though the Fourth Amendment reasonableness standard is not
influenced by the subjective intentions of the person making
the search or seizure, if a person can demonstrate that he was
subjected to selective enforcement in violation of his Equal
Protection rights, his conviction will be invalid.'* United States
v. Berrigan, 482 F.2d 171, 174 (3d Cir. 1973) (“[A]ny
“systematic discrimination’ in enforcement .. ., or ‘unjust and
illegal discrimination between persons in similar
circumstances,’ . . violates the equal protection clause and
renders the prosecution invalid.”). Because a successful claim
of selective enforcement under the Fourteenth Amendment
Equal Protection Clause would have necessarily invalidated
Gibson’s conviction, under the Heck deferred accrual rule the
statute of limitations did not begin to run until his sentence was
vacated and this claim is not untimely. See Kramer v. Village
of North Fond du Lac, 384 F.3d 856, 862 (7th Cir. 2004)
(recognizing that the Heck deferred accrual rule applies to
Fourteenth Amendment equal protection claims); Portley-El v.
Brill, 288 F.3d 1063, 1067 (8th Cir. 2002) (stating that an equal
protection claim is a direct attack on the validity of a
disciplinary decision).

It appears that defendants do not raise a qualified immunity
defense to Gibson’s Fourteenth Amendment claims.
Furthermore, it has long been a well-settled principle that the
state may not selectively enforce the law against racial
minorities. Yick Wo v. Hopkins, 118 U.S. 356, 373-74 (1886);

'S The Appellees miss the point of Gibson’s argument in their
suggestion that success on a selective enforcement claim would only imply
the invalidity of prosecutions for traffic violations. (Appellee Brief at 31.)
Gibson’s allegations are that the racial profiling was part of an invidious
system of discriminatory law enforcement which selectively targeted
minorities for drug crimes. The traffic stops were only a vehicle for those
efforts.

23a

Berrigan, 482 F.2d at 174 (3d Cir. 1973). Thus, even assuming,
arguendo, that defendants raised the issue, we deny Troopers
Pennypacker and Reilly qualified immunity with regard to
Gibson’s Fourteenth Amendment Equal Protection claim, and
this claim may proceed.

C. Denial of Access to the Courts

Gibson’s denial of access to the courts claims in Count
One are also brought under 42 U.S.C. § 1983, and therefore we
must again identify the constitutional deprivation and the
impermissible state action implicated in these claims. 42 U.S.C.
§ 1983; Basista, 340 F.2d at 79. The Supreme Court has
recognized that a constitutional right to effectively use the
courts has been found in the Article [V Privileges and
Immunities Clause, the First Amendment Petition Clause, the
Fifth Amendment Due Process Clause, and the Fourteenth
Amendment Equal Protection and Due Process Clauses. See
Christopher v. Harbury, 536 U.S. 403, 415 n.12 (2002).
Asserting this right, wherever it is grounded, a plaintiff can
seek relief for “loss or inadequate settlement of a meritorious
case, .. . the loss of an opportunity to sue, . . . or the loss of an
opportunity to seek some particular order of relief.” Jd. at 414.

Denial of access claims generally fall into two categories.
Id. at 412-13. The first type of claim alleges that some official
action is currently preventing the plaintiff from filing a suit at
the present time. /d. at 413. The object of such a claim is to
remove the barrier so that the plaintiff can pursue the separate
claim for relief. Jd. In these cases, the constitutional deprivation
is demonstrated by the very fact that the plaintiff cannot
presently pursue his underlying case until the frustrating
condition is removed.

In the second category of cases, the plaintiff looks
backward and alleges that some past wrongful conduct
influenced a litigation opportunity such that the litigation

24a

“ended poorly, or could not have commenced, or could have
produced a remedy subsequently unobtainable.” Jd. at 414
(footnotes omitted). In these cases, because the action was
never pursued, it is often not as clear that the defendant’s
wrongful conduct prevented the plaintiff from pursuing or
defending a claim, or that he is still foreclosed from accessing
the courts. Therefore, “the underlying cause of action, whether
anticipated or lost, is an element that must be described in the
Complaint, just as much as allegations must describe the
official acts frustrating the litigation. It follows, too, that when
the access claim (like this one) looks backward, the Complaint
must identify a remedy that may be awarded as recompense but
not otherwise available in some suit that may yet be brought.”
Id. at 415. When a denial of access claim involves a state’s
suppression of evidence that is material to a criminal trial, the
claim does not accrue until the conviction is invalidated. See
Smith v. “oltz, 87 F.3d 108, 112 (3d. Cir. 1996). The parties
both agree that this case implicates only “backward-looking”
types of claims. (Appellant Brief at 27-28; Appellee Brief at
36.)

Gibson’s “backward-looking” denial of access claims are
based on two separate alleged litigation opportunities. The first
was Gibson’s criminal trial in which he claims he was unable
to mount an effective defense because the Troopers did not
disclose exculpatory information. The second involves his
inability to pursue effective post-conviction relief actions that
would have ended his incarceration at an earlier date because
the Attorney General defendants did not disclose exculpatory
evidence. We address each in turn.

1. The Criminal! Conviction

Gibson argues that Troopers Pennypacker and Reilly
violated his rights by suppressing exculpatory evidence related
to his conviction. (Appellant Brief at 11.) Gibson attempts to

25a

base his denial of access claim on the disclosure requirements
set forth in Brady v. Maryland, 373 U.S. 83 (1963), and its
progeny. In Brady, the Supreme Court held that “the
suppression by the prosecution of evidence favorable to an
accused upon request violates due process where the evidence
is material either to guilt or to punishment, irrespective of the
good faith or bad faith of the prosecution.” /d. at 87. The
prosecutor’s duty to disclose extends beyond the information
that he or she possesses, to include information in the hands of
police investigators working on the case. Kyles v. Whitley, 514
U.S. 419, 421-22 (1995). According to Gibson, because the
defendants failed to disclose exculpatory material evidence to
the prosecutor or the defendant, they violated the mandate of
Brady, and can be held liable under § 1983.

Gibson’s approach is somewhat flawed because the Brady
duty to disclose exculpatory evidence to the defendant applies
only to a prosecutor. “The Brady rule is based on the
requirement of due process. Its purpose is not to displace the
adversary system as the primary means by which truth is
uncovered, but to ensure that a miscarriage of justice does not
occur.” United States v. Bagley 473 U.S. 667, 675 (1985)
(footnote omitted). As the Supreme Court made clear, a
prosecutor plays a special role within the adversarial process:

Within the federal system, for example, we have said
that the United States Attorney is “the representative
not of an ordinary party to a controversy, but of a
sovereignty whose obligation to govern impartially is
as compelling as its obligation to govern at all; and
whose interest, therefore, in a criminal prosecution is
not that it shall win a case, but that justice shall be
done.” Berger v. United States, 295 U.S. 78, 88
(1935).

26a

Strickler v. Greene, 527 U.S. 263, 281 (1999). This “special
status” underpins the Brady rule and explains why the duty of
disclosure rests squarely on the shoulders of the prosecutor. fd.

A prosecutor is the “architect” of the criminal proceeding
and must “comport with standards of justice” when acting on
behalf of the state. Brady, 373 U.S. at 88. The prosecutor has
a responsibility not just to disclose what he or she knows, but
to learn of favorable evidence known to others acting on the
government’s behalf, weigh the materiality of all favorable
evidence and disclose such evidence when it is reasonably
probable that it will affect the result of the proceedings. Kyles,
514 U.S. at 437. The police are not equipped to perform this
role and, accordingly, the Court has refused to “substitute the
police for the prosecutor, and even for the courts themselves,
as the final arbiters cf the government’s obligation to ensure
fair trials.” /d. at 438.

However, Gibson also alleges that the defendants failed to
inform the prosecutor of the exculpatory information.
(Appellant Brief at 11.) Several circuits have recognized that
police officers and other state actors may be liable under § 1983
for failing to disclose exculpatory information to the
prosecutor. McMillian v. Johnson, 88 F.3d 1554, 1567 (11th
Cir. 1996), amended 101 F.3d 1363 (11th Cir. 1996); Walker
v. City of New York, 974 F.2d 293, 299 (2d Cir. 1992); Geter
v. Fortenberry, 849 F.2d 1550, 1559 (Sth Cir. 1988). We agree.

Although Brady places the ultimate duty of disclosure on
the prosecutor, it would be anomalous to say that police
officers are not liable when they affirmatively conceal material
evidence from the prosecutor. In this case, Gibson alleges that
the Troopers suppressed the extent of their impermissible law
enforcement tactics, and had that information been available,
he would have been able to impeach several witnesses and
possibly could have halted the entire prosecution. We think that

27a

Gibson states an actionable § 1983 claim against the Troopers
for interference with his Fourteenth Amendment due process
rights.

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

Troopers was not clearly established at the time of Gibson’s
prosecution in 1994. As this Court explained:

Where a challenged police action presents a legal
question that is “unusual and largely heretofore
undiscussed,” Jd. at 429, or where there is “at least
some significant authority” that lends support of the
police action, Leveto, 258 F.3d at 166, we have upheld
qualified immunity even while deciding that the
action in question violates the Constitution. On the
other hand, the plaintiff need not show that there is a
prior decision that is factually identical to the case at
hand in order to establish that a right was clearly
established.

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

Although this Court held in United States v. Perdomo, 929
F.2d 967, 970 (3d Cir. 1991), that evidence in the hands of the
police could be imputed to the prosecutor, the Supreme Court
did not settle this matter until 1995 when it decided Kyles v.
Whitley, 514 U.S. at 437 (“[T]he individual prosecutor has a
duty to learn of any favorable evidence known to the others
acting on the government’s behalf in the case, including the
police.”). More importantly, the related duty of the police to
disclose information to the prosecutor was not widely
addressed until later. Even in 2000, this Court was only able to
assume that police officers “have an affirmative duty to
disclose exculpatory evidence to am accused if only by
informing the prosecutor that the evidence exists.” Smith v.

28a

Holtz, 210 F.3d 186, 197 n.l4 (3d Cir. 2000).'° Because such a
right was not clearly established in this Circuit at the time of
Gibson’s conviction, Troopers Pennypacker and Reilly are
entitled to qualified immunity with regard to their failure to
inform the prosecutor of Brady material.

2. Civil Claims and Post-Conviction Relief

Gibson also alleges that the Attorney General defendants
“failed to disclose excu!patory material to [Gibson] during the
course of his incarceration and post-conviction criminal
proceedings in the New Jersey courts and that their suppression
of materials relating to racial profiling practices on the New
Jersey Turnpike violated plaintiff's right of access to the
courts” because Gibson was prevented from effectively
pursuing post-conviction relief or a civil action before the full
disclosure of the nature of the racial profiling was revealed in
2000. (Appellant Brief at 26.) We address the purportedly lost
civil claims and the lost post-conviction relief claims

separately.

'© In Smith v. Holtz, 210 F.3d 186, 197 n.14 (3d Cir. 2000), this
Court was faced with a similar question as the one before us. Avoiding the
question of whether investigating police officers have an affirmative duty to
disclose exculpatory evidence, this Court noted:

Although the affirmative duty to disclose is placed upon the
prosecutor, we will nonetheless assume for the purposes of this
appeal that investigating police officers also have an affirmative
duty to disclose exculpatory evidence to an accused if only by
informing the prosecutor that the evidence exists. But see Kelly
v. Curtis, 21 F.3d 1544, 1552 (11th Cir. 1994). We will further
assume that a § 1983 claim alleging a due process violation
under Brady can, therefore, be asserted against police officers.
See McMillian v. Johnson, 88 F.3d 1554, 1567 n. 12 (11th Cir.
1996), amended, 101 F.3d 1363 (11th Cir. 1996).

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

29a

Gibson failed to adequately describe the civil litigation
opportunities that he claims he lost. “Like any other element of
an access claim, the underlying cause of action and its lost
remedy must be addressed by allegations in the Complaint
sufficient to give fair notice to a defendant.” Christopher, 536
U.S. at 416 (internal citations omitted). Because Gibson’s
inadequate allegations do not allow us to decide whether his
lost claims were ever available or still are available, we will
uphold the dismissal of this part of his claim.

Gibson also claims that the defendants frustrated his efforts
to obtain post-conviction relief that would have ended his
incarceration at an earlier date. In his brief, he relies heavily on
Brady, seeking to imply a duty on the defendants to come
forward with exculpatory evidence even after his conviction
and appeal. However, Gibson has pointed to no constitutional
duty to disclose potentially exculpatory evidence to a convicted
criminal after the criminal proceedings have concluded and we
decline to conclude that such a duty exists. We also note that
the actual prosecutors in Gibson’s case are not named as
defendants, and would have been immune if they had been so
named. Jmbler v. Pachtman, 424 U.S. 409, 427 (1976).

Without a duty to act, the defendants cannot be liable for
failing to come forward with the exculpatory evidence.
However, Gibson’s Complaint as it relates to the Attorney
General defendants does not simply allege that the defendants
failed to come forward with exculpatory evidence, but that their
actions obfuscated the real extent of racial profiling. “It is
firmly established that a defendant in a § 1983 suit acts under
color of state law when he abuses the position given to him by
the State.” West v. Atkins, 487 U.S. 42, 49-50 (1988). Whether
or not the Attorney General defendants had a duty under Brady
is irrelevant to the question of whether they used their positions
to perpetuate the discriminatory enforcement of laws and to

30a

obstruct those convicted as a result of the discriminatory
enforcement from obtaining relief.

Gibson specifically alleges that, although the Attorney
General defendants published the Jnterim Report of the State
Police Review Team Regarding Allegations of Racial Profiling
in April 1999, the authors nevertheless “intentionally withheld
and suppressed the overwhelming evidence they had gathered
showing that profiling was an entrenched agency wide policy
in the NJSP.” (Appellant App. at A-85.) According to Gibson,
the suppression of this evidence denied him the opportunity to
obtain freedom for a number of years.

Although the complete information disclosed in 2000
which eventually led to Gibson’s release would have been
helpful earlier, we cannot say that the defendants deprived
Gibson of his access to the courts. Although we recognize that
there is generally no “state-of-mind requirement independent of
that necessary to state a violation of the underlying
constitutional right” in a § 1983 suit, Daniels v. Williams, 474
U.S. 327, 330 (1986), we adhere to the Supreme Court’s
teaching that not all acts are unconstitutional simply because of
the result, see Vill, of Arlington Heights v. Metro. Hous. Dev.
Corp., 429 U.S. 252, 264-65 (1977) (requiring proof of an
invidious discrimination purpose for a claim of racial
discrimination under the equal protection clause). In Estate of
Smit® ¥. Marasco, 318 F.3d 497, 511 (3d Cir. 2003), we
expressed our approval of the Sixth Circuit view that a denial
of access claim is available where the state officials
“wrongfully and intentionally conceal information crucial to a
person’s ability to obtain redress through the courts, and do so
for the purpose of frustrating that right, and that concealment
and the delay engendered by it substantially reduce the
likelihood of one’s obtaining the relief to which one is
otherwise entitled.” (quoting Swekel v. City of River Rouge,
119 F.3d 1259, 1262-63 (6th Cir. 1997)) (emphasis added).

3la

Gibson alleged no facts that would establish that the actions of
the Attorney General defendants in publishiig the 1999 Interim
Report were directed at denying relief to people like Gibson."’
The fact that the Attorney General defendants’ actions had the
unfortunate result of perpetuating his incarceration until! 2000
is insufficient under the circumstances to establish a cause of
action. Consequently, Gibson’s claim against the Attorney
General defendants was properly dismissed.

D. The Failure to Train Claim

Gibson alleges in Count One that the NJTA had notice of
the NJSP’s practice of racial profiling, tolerated the practice,
failed to properly discipline, restrict or control employees,
failed to take adequate precautions in hiring personnel, and
intentionally suppressed known evidence of racial profiling that
would have benefitted Gibson if brought during his prosecution
or afterward. The District Court dismissed these claims noting
that the action was time-barred and no facts were alleged to
support these claims. Although Gibson challenges the Court’s
determination that no facts were alleged to support this claim,
he fails to challenge the determination that the action is
time-barred and we deem the issue waived. Wisniewski v.
Johns-Manville Corp., 812 F.2d 81, 88 (3d Cir. 1987).
Accordingly, we affirm th 2 dismissal of the claims against the
NJTA.

'7 In his Reply Brief, Gibson points to only one allegation in his
Complaint (J 61) that the defendants were acting purposefully when they
“actively suppressed information that would have required either (1)
Plaintiff's release from prison, or (2) a new trial based on the exculpatory
information described herein and the misconduct of the State for suppressing
same, as stated in Brady v. Maryland and similar state law.” (Appellant
Reply Brief at 14.) However, we read this paragraph as just a summary of
Gibson's allegations that the government suppressed information and that
the information would have been helpful. The allegation makes no claim that
the government suppressed information in order to stifle Gibson’s rights.

32a

[V. CONCLUSION

Consistent with this Opinion and the Opinion of Judge
Fuentes, Gibson’s claims in Count One under 42 U.S.C. § 1983
that the Troopers violated his Fourth Amendment rights, and
unconstitutionally subjected him to selective enforcement of
the laws in violation of the Equal Protection Clause of the
Fourteenth Amendment may proceed. Since these claims in
Count One may proceed, it follows that the 42 U.S.C. § 1983
conspiracy claim in Count Three and the 42 U.S.C. § 1985
conspiracy claim in Count Four may also proceed against
Troopers Reilly and Pennypacker. We will also reinstate the
state law claims. The dismissal of all the remaining claims is
affirmed.

33a

FUENTES, Circuit Judge, with whom BARRY, Circuit Judge,
joins, writes the opinion of the Court with respect to Part IIIA,
from which Judge Van Antwerpen dissents. Judge Van
Antwerpen writes the opinion of the Court with respect to Parts
I, I, 0.B-D, and IV.

We depart from our colleague’s well-reasoned dissent with
respect to Gibson’s Fourth Amendment claims. Gibson claims
that the Defendants violated his Fourth Amendment rights,
when, as a consequence of racial profiling, he was stopped,
searched, and arrested without probable cause (henceforth
referred to as “Fourth Amendment claims”). We are asked to
determine whether the statute of limitations began to run on
Gibson’s § 1983 complaint as to these claims when he was
arrested in 1992, or when his conviction was overturned in
2002. We conclude that, under Heck v. Humphrey, 512 U.S.
477 (1994), the statute of limitations did not begin to run until
2002. Accordingly, Gibson’s § 1983 complaint was timely filed
in 2002, notwithstanding the fact that he was stopped, searched,
and detained in 1992. We thus reverse the District Court’s
dismissal of Gibson’s Fourth Amendment claims.

lil. A. 1. Background Relating to
Fourth Amendment Claims

As noted by our colleague in dissent, Gibson was a
passenger in the rear seat of an automobile that was stopped on
the New Jersey Turnpike in October 1992 by two New Jersey
State Troopers."* In a search of the car, the Defendant Troopers
discovered drugs in the hatchback. Gibson was arrested and
charged with various drug-related offenses. He was tried and
convicted in April 1994. Five years after his conviction, and
while serving his prison sentence, Gibson filed a petition for
post-conviction relief in the New Jersey Superior Court,

‘8 Hereafter referred to as Gibson’s car.

34a

requesting discovery materials pertaining to racial profiling.
His petition was denied, in part, because he did not present
sufficient evidence to support the racial profiling claim and/or
the probable illegality of his stop and arrest. In 1999, the New
Jersey Attorney General issued an interim report regarding
allegations of racial profiling. Additionally, in November 2000,
new evidence regarding racial profiling practices in New Jersey
was released in response to the various racial profiling
challenges that were being raised at that time. Eventually, in
April 2002, the New Jersey Attorney General filed a formal
motion to vacate the convictions in 86 cases, including
Gibson's case. The State determined that the defendants in
these cases could make out a colorable claim of racial profiling.
Based on the State’s motion, Gibson’s conviction was vacated,
and all charges against him were dismissed. Gibson alleges that
his conviction was overturned because the 1992 stop resulted
from unlawful racial profiling and the practice of racial
profiling by the state police had not been disclosed to him.

On November 14, 2002, more than ten years after his
arrest, Gibson filed a § 1983 complaint claiming, as relevant
here, a violation of his right to be free from unlawful search
and seizure under the Fourth Amendment.

2. Discussion

In Heck, the Supreme Court held that to maintain a claim
for damages for an “allegedly unconstitutional conviction or
imprisonment, or for other harm caused by actions whose
unlawfulness would render a conviction or sentence invalid, a
§ 1983 plaintiff must prove that the conviction or sentence has
been reversed on direct appeal, expunged by executive order,
{or} declared invalid by a state tribunal.” 512 U.S. at 486-87.

Under Heck, § 1983 claims for damages attributable to an
unconstitutional conviction or sentence do not accrue until the
conviction or sentence has been invalidated. Jd. at 489-90. The

35a

Supreme Court directs district courts to determine in each case
whether a particular § 1983 claim is deferred under Heck, Id. at
487 (requiring district courts to “consider whether a judgment
in favor of the plaintiff would necessarily imply the invalidity
of his conviction or sentence”). The Court offered guidance on
the question of when a § 1983 claim implies the invalidity of a
conviction or a sentence, and is thus deferred, in two separate
footnotes in Heck. In footnote six, the Court provided an
example of when a defendant’s § 1983 action would implicate
the validity of his conviction. In the example, a person is
convicted and sentenced for resisting arrest, an offense
ordinarily requiring proof that the defendant intentionally
prevented an officer from making a /awful arrest. The
defendant then brings a § 1983 action for damages against the
officer claiming the officer arrested him in violation of his
Fourth Amendment right to be free from unreasonable seizures.
Because this § 1983 claim would “negate an element of the
offense of which he has been convicted,” Jd. at 486 n.6, it does
not accrue until the conviction or sentence has been invalidated.

In footnote seven, the Court offered an example of a §
1983 action which, even if successful, would not demonstrate
the invalidity of any outstanding criminal judgment against the
plaintiff, and thus, is not subject to deferral. The Court
explained that a § 1983 action for damages based on an
allegedly unreasonable search would not necessarily imply the
invalidity of the conviction because of doctrines such as
independent source, inevitable discovery, and harmless error.
Id. at 487 n.7. The Court noted that in order for a § 1983
plaintiff to recover compensatory damages, he or she must
prove both that the search was unlawful and that it caused
actual compensable injury that “does not encompass the
‘injury’ of being convicted and imprisoned.” /d. (emphasis in
original). The Court emphasized however, that once a

36a

conviction was overturned, being convicted and imprisoned
would qualify as an actionable § 1983 injury. Jd.

Our decision in this case rests largely upon how we
interpret footnote seven. At one point, there were two dominant
approaches to the question of whether Fourth Amendment
claims are subject to the Heck deferral rule. E.g., Harvey v.
Waldron, 210 F.3d 1008, 1015 (9th Cir. 2000) (noting that
“(t}here is a split in the circuits as to how Heck’s footnote
seven should be interpreted.”); Shamaeizadeh v. Cunigan, 182
F.3d 391, 395 (6th Cir. 1999). Some courts had interpreted
footnote seven as categorically excluding Fourth Amendment
claims from the Heck deferred accrual rule. Under this
approach, Fourth Amendment claims for unreasonable searches
are not deferred under Heck, See, e.g., Nieves v. McSweeney,
241 F.3d 46, 52 (ist Cir. 2001) (holding that claims for false
arrest and imprisonment under § 1983 accrue at the time of the
arrest); '? Copus v. City of Edgerton, 151 F.3d 646, 648 (7th Cir.
1998) (Fourth Amendment claims for unlawful searches or
arrests can go forward because they do not necessarily imply a
conviction is invalid); Simmons v. O’Brien, 77 F.3d 1093, 1095
(8th Cir. 1996) (extending the categorical interpretation of
footnote seven in the Fourth Amendment context “to Fifth
Amendment claims challenging the voluntariness of
confessions”); Datz v. Kilgore, 51 F.3d 252, 253 n.1 (11th Cir.
1995) (Heck does not defer a § 1983 claim because, even if a
search was unconstitutional, the conviction might still be valid
considering such doctrines as inevitable discovery, independent
source, and harmless error).

'9 It is significant to note, however, that the McSweeney Court
acknowledged that “there may be rare and exotic circumstances in which a
§ 1983 claim based on a warrantless arrest will not accrue at the time of the
arrest.” McSweeney, F.3d at 53 n.4.

37a

In contrast, the majority of Courts of Appeals have read
footnote seven as requiring a fact-based inquiry into whether a
Fourth Amendment claim implies the invalidity of the
underlying conviction. Under the fact-based approach, Fourth
Amendment claims can be brought under § 1983, even without
favorable termination, if the district court determines that
success on the § 1983 claim would not necessarily imply the
invalidity of the conviction. See, e.g., Baranski v. Fifteen
Unknown Agents of the Bureau of Alcohol, Tobacco, and
Firearms, 401 F.3d 419 (6th Cir. 2005) (conducting a
fact-based inquiry as to whether the alleged Fourth Amendment
injuries would necessarily imply the invalidity of the
conviction); Hughes v. Lott, 350 F.3d 1157, 1161 (11th Cir.
2003) (same); Gauger v. Hendle, 349 F.3d 354, 361-62 (7th
Cir. 2003) (same); Covington v. City of New York, 171 F.3d
117, 123 (2d Cir. 1999) (same); Martinez v. City of
Albuquerque, 184 F.3d 1123, 1125 (10th Cir. 1999) (same);
Woods v. Candela, 47 F.3d 545, 546 (2d Cir. 1995) (same);
Brooks v. City of Winston-Salem, 85 F.3d 178, 182-83 (4th Cir.
1996) (same). In situations where the evidence seized as a
result of an unlawful search or arrest was used to convict the
defendant, district courts examine the factual circumstances to
determine whether doctrines such as independent source,
inevitable discovery, or harmless error would have permitted
the introduction of the evidence. See, e.g., Ballenger v. Owens,
352 F.3d 842, 846-47 (4th Cir. 2003); Hudson v. Hughes, 98
F.3d 868, 872 (Sth Cir. 1996). Where it is impossible or
improbable that such doctrines would have permitted the
introduction of the evidence at issue in the criminal
proceedings, the courts toll the statute of limitations as to the §
1983 claims until such time as the plaintiff's criminal
proceedings have been resolved in his or her favor. See also,
e.g., Baranski, 401 F.3d at 434; Wiley v. City of Chicago, 361
F.3d 994, 997 (7th Cir. 2004); Hughes, 350 F.3d at 1161
(examining circumstances of case to determine whether § 1983

38a

action for unlawful search necessarily implied invalidity of
conviction); Covington, 171 F.3d at 123 (noting that tolling rule
differs in cases where conviction could be obtained from
independent, untainted evidence, as opposed to cases where the
evidence derived solely from unlawful arrest).

We note that the general trend among the Courts of
Appeals has been to employ the fact-based approach. Indeed,
even those Courts of Appeals which had interpreted footnote
seven as categorically excluding Fourth Amendment claims
from the Heck deferred accrual rule have utilized a fact-based
approach in some recent cases. Compare Copus, 151 F.3d at
648 with Gauger, 349 F.3d at 361 and Wiley, 361 F.3d at 997
(Seventh Circuit); compare Datz v. Kilgore, 51 F.3d at 253 n.1
with Hughes, 350 F.3d at 1161 (Eleventh Circuit); compare
Simmons, 77 F.3d at 1095 with Anderson v. Franklin County,
Mo., 192 F.3d 1125, 1131 (8th Cir. 1999) (Eighth Circuit).

Irrespective of the general trend, in our view, the better
reading of footnote seven is one that requires a fact-based
inquiry. Accordingly, in those cases in which a district court
determines that success on the § 1983 claim would imply the
invalidity of the conviction, the cause of action is deferred until
the conviction is overturned. Both the letter and spirit of Heck
supports this conclusion. Featmote seven of Heck clearly states
that an action may lie with ¢espect to an unreasonable search,
not that it shall or will tie. $12 U.S. at 487 n.7. The use of the
permissive word “may” endorses the use of a fact-based
approach because it precludes the automatic exemption of all
Fourth Amendment claims from the Heck deferred accrual rule.
See John S. Buford, Note, When the Heck Does This Claim
Accrue? Heck v. Humphrey's Footnote Seven and § 1983
Damages Suits for Illegal Search and Seizure, 58 Wash. & Lee
L. Rev. 1493, 1533 (2001); Paul D. Vink, Note, The Emergence
of Divergence: The Federal Courts’ Struggle to Apply Heck v.
Humphrey to § 1983 Claims for Illegal Searches, 35 Ind. L.

39a

Rev. 1085, 1 106-07 (2002). Moreover, the policies cited in the
Heck decision itself, which provide the proper context within
which to interpret footnote seven, lend additional support for
the case-by-case approach. In rendering its decision, the Court
noted that it “has long expressed . . . concerns for finality and
consistency and has generally declined to expand opportunities
for collateral attack.” Heck, 512 U.S. at 484-85. The
case-by-case approach actually best honors these values by
identifying all those § 1983 challenges which, if successful,
would imply the invalidity of existing convictions. See Buford,
supra, at 1533-34; Vink, supra, at 1106.

Our colleague in dissent reaches a different conclusion
based on Montgomery v. De Simone, 159 F.3d 120 (3d Cir.
1998), which considered whether the plaintiffs false arrest and
imprisonment claims accrued on the day of the arrest or on the
day of favorable disposition of the conviction. Plaintiff
Rosemary Montgomery was arrested in September 1992 and
charged with speeding, drunk driving, and refusing to take a
breathalyzer test, /d. at 122. She was found guilty of these
charges and subsequently appealed her conviction. At a trial de
novo in the Superior Court of New Jersey, in February 1994,
she was acquitted of all charges. A year later, she filed a § 1983
suit in federal court claiming malicious prosecution, false
arrest, and false imprisonment relating to the September 1992
traffic stop. The District Court entered summary judgment for
the defendants, and Montgomery appealed. On appeal, we held
that the two-year limitations period for the false arrest and false
imprisonment claims began to run on the night of her arrest,
and thus these claims were time-barred. In discussing whether
her cause of action arose when she was arrested in 1992 or
when she was acquitted in 1994, we reasoned as follows:

Montgomery argues that under [Heck] these claims
only accrued after her criminal charges were resolved
in her favor. In Heck, the Court held that a § 1983

40a

claim for damages attributable to an unconstitutional
conviction or sentence does not accrue until that
conviction or sentence has been invalidated. Heck,
512 U.S. at 489-90. The Court also noted, however,
that if a successful claim would not demonstrate the
invalidity of any outstanding criminal judgment, it
should be allowed to proceed. /d. at 487. Because a
conviction and sentence may be upheld even in the
absence of probable cause for the initial stop and
arrest, we find that Montgomery’s claims for false
arrest and false imprisonment are not the type of
claims contemplated by the Court in Heck which
necessarily implicate the validity of a conviction or
sentence. See Mackey v. Dickson, 47 F.3d 744, 746
(Sth Cir. 1995) (stating that “it is well established that
a claim of unlawful arrest, standing alone, does not
necessarily implicate the validity of a criminal
prosecution following the arrest.”). Accordingly, we
read Heck to be consistent with our determination that
Montgomery’s false arrest and false imprisonment
claims accrued on the night of her arrest.

Id. at 126 0.5.

Our analysis of Gibson’s claims differs from that of our
colleague’s because we read Montgomery differently. We do
not dispute that, consistent with Heck, in some cases Fourth
Amendment claims for false arrest begin to accrue at the time
of arrest, not when the conviction is overturned. This occurs
when a false arrest claim will not necessarily undermine a
conviction or sentence. Thus, in Montgomery, we held that the
plaintiff's false arrest claim was not deferred under Heck
because the validity of her conviction did not depend upon
probable cause for the stop. The evidence against Montgomery
included the officer’s testimony concerning her driving, and a
radar measurement of her speed, neither of which was obtained

4la

as a result of the unlawful stop. Moreover, Montgomery refused
to take the breathalyzer test which, under New Jersey law, gave
rise to one of the charges on which she was convicted. Thus, in
Montgomery, the plaintiff's § 1983 claim did not necessarily
imply the invalidity of her conviction.

While it is true that some Fourth Amendment claims are
not subject to deferral under Heck, we conclude that Heck does
not set forth a categorical rule that all Fourth Amendment
claims accrue at the time of the violation. This Court’s
determination that the plaintiff's false arrest claim in
Montgomery qualified as an exception to the Heck deferral
rule, and thus accrued on the night of the arrest, does not
mandate a blanket rule that all false arrest claims accrue at the
time of the arrest.

Our dissenting colleague reasons that we are precluded
from engaging in a fact-based inquiry as to the applicability of
the Heck deferral rule because the Montgomery Court elected
not to do so. We disagree with this interpretation. As we
discussed above, the Montgomery Court considered, albeit
briefly, the charges brought against Montgomery and the
existing evidence supporting those charges. Based on its
analysis, the Court reasoned that Montgomery’s conviction
could be upheld based on evidence obtained independently
from the initial stop and arrest. Montgomery did not rule out a
factual analysis of the evidence and it does not preclude us
from applying the case -by-case approach here.

Our dissenting colleague criticizes the fact-based approach
because it would involve district courts in “difficult questions
about what might have happened in lower court criminal
proceedings,” (Dissenting Op. at n.10), thereby violating
Heck’s rule against questioning the validity of underlying
criminal convictions. While our colleague is correct that the
fact-based approach requires a district court to inquire into the

42a

nature of the criminal conviction and the antecedent
proceedings, our approach does not in any way place the
district court in the position of questioning the validity of that
conviction. To the contrary, under Heck, a district court is
required only to make a threshold determination as to whether
a plaintiffs § 1983 claim, if successful, would have the
hypothetical effect of rendering the criminal conviction or
sentence invalid. If this threshold is satisfied, the district court’s
analysis is at an end, and the Heck deferred accrual rule is
triggered. This approach is consistent with the dictates of Heck,
and has been adopted by the majority of our sister circuits. See
¢.g., Baranski, 401 F.3d at 419; Wiley, 361 F.3d at 997;
Ballenger, 352 F.3d at 846-47; Hughes, 350 F.3d at 1161;
Covington; 171 F.3d at 122.

Jn this case, Gibson was arrested for drug-related offenses
after his car was stopped and searched in Uctober 1992. His
conviction was overturned in April 2002. Gibson’s primary
claims are that he was falsely arrested and falsely imprisoned
in violation of the Fourth and Fourteenth Amendments.

Under New Jersey law, “{flalse arrest or false
imprisonment is the constraint of the person without legal
justification.” Fleming v. United Parcel Serv.. Inc., 604 A.2d
657, 680 (NJ. Super. Ct. Law Div. 1992), aff'd per curiam.
642 A.2d 1029 (N.J. Super. Ct. App. Div. 1994) (citing Pine v.
Okzewski, 170 A. 825, 826(N.J. 1934)). The tort of false arrest
consists of: (1) an arrest or detention of the person against his
will; (2) which is done without proper legal authority or legal
justification. See /d. If a judgment for Gibson on his false arrest
claim “would necessarily imply the invalidity of his
conviction,” Gibson would be barred from bringing his cause
of action until his conviction was overturned in April of 2002.
Heck 512 at 487. To prevail on his § 1983 claim for false arrest
and imprisonment, Gibson would have to demonstrate that his
arrest was without legal justification.

43a

Viewing the evidence in the light most favorable to
Gibson, his car was stopped because of a pattern and practice
of racial profiling, not because police had reasonable suspicion
to believe acrime was being committed. Generally, the absence
of reasonable suspicion renders a stop unlawful, see Alabama
v. White, 496 U.S. 325, 329-30 (1990), and evidence obtained
from that unlawful stop excludable, see Wong Sun v. United
States, 371 U.S. 471, 487-88 (1963). Gibson was arrested when
the Defendant Troopers discovered drugs during the subsequent
search of the car. These drugs were the only evidence
supporting the drug charges against Gibson. Thus, success on
his § 1983 claim for false arrest would “necessarily imply” that
he was improperly convicted. As other courts have recognized,
situations such as Gibson’s — where the only evidence
supporting the conviction is tainted by a possible constitutional
violation that is the subject of a § 1983 action — are perhaps the
quintessential example of when the Heck deferred accrual rule
is triggered. E.g., Covington, 171 F.3d at 123 (“On the other
hand, in a case where the only evidence for conviction was
obtained pursuant to an arrest, recovery in a civil case based on
false arrest would necessarily impugn any conviction resulting
from the use of that evidence.”) (emphasis in original).
Gibson is not seeking damages for physical injury, injury to
reputation or seizure of property resulting from the improper

0 In dissent, our colleague states that even under a fact-based
approach, he still could not conclude that the exclusion of the evidence in
this matter would necessarily have invalidated Gibson’s underlying state
criminal conviction. (Dissenting Op. at n.10) (“We cannot say what other
evidence of guilt may have been present or whether there may have been a
valid reason for stopping the vehicle other than race.”). But the record belies
that concer, as it is clear that the only evidence supporting the criminal
conviction was obtained as a result of the unlawful stop based on racial
profiling and there is nothing in the record indicating that an exception to
the exclusionary rule would apply. Indeed, counsel for the defendants
conceded as much during the oral arguments before us.

44a

search. His alleged injury was based on evidence derived from
an improper stop. In other words, his actual, compensable
injury was “the ‘injury’ of being convicted and imprisoned,”
which was not actionable until the conviction was overturned.
Heck, 512 U.S. at 487 n.7.

Therefore, under Heck, Gibson’s Fourth Amendment
claims were not cognizable and did not accrue until his
conviction was invalidated in April 2002. Thus, these claims,
when filed in November 2002, were raised well within the
two-year statute of limitations.”' We thus reverse with respect
to this issue.

21 As an aside, even if Gibson’s claim had accrued in 1992, his
cause of action may also be subject to tolling under New Jersey law on
equitable grounds. A New Jersey State Court had already determined in
1994 chat he did not have sufficient evidence to support a claim of racial
profiling. Sufficient evidence came when the New Jersey Attorney General
proposed dismissa! of 86 cases tainted by racial profiling. We need not
decide this issue, however, as Gibson's case comes within the scope of
Heck’s deferral rule. Id. at 489-90.

45a

APPENDIX B

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 04-1847

EMORY E. GIBSON, JR.
Appellant

Vv.

SUPERINTENDENT OF NEW JERSEY DEPARTMENT
OF LAW AND PUBLIC SAFETY-DIVISION OF
STATE POLICE; NEW JERSEY TURNPIKE AUTHORITY;
SEAN REILLY; J.W. PENNYPACKER;

PETER VERNIERO; RONALD SUSSWEIN;

JOHN FAHY; GEORGE ROVER; JOHN DOES 1-10;
TREASURER STATE OF NEW JERSEY

On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 02-cv-05470)
District Judge: Honorable Robert B. Kugler

Argued February 11, 2005

Before: BARRY, FUENTES, and VAN ANTWERPEN,
Circuit Judges

JUDGMENT

This cause came to be heard on the record from the United
States District Court for the District of New Jersey and argued

46a

on February 11, 2005, on consideration whereof, it is now
hereby

ORDERED and ADJUDGED that the judgment of the
District Court dated February 24, 2004, is hereby AFFIRMED
in part and REVERSED in part and REMANDED to the
District Court for further proceedings consistent with this
Court’s opinion. Each party to bear their own costs.

All of the above in accordance with the Opinion of this
Court.

ATTEST:
/s/ Marcia Waldron
Clerk

DATED: June 14, 2005

Certified as a true copy and issued in lieu of
a formal mandate on 8/26/05

Teste: /s/ Marcia M. Waldron
Clerk, U.S. Court of Appeals for the
Third Circuit

47a

APPENDIX C

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

Civil No. 02-5470 (RBK)

ORIGINAL FILED
DECEMBER 12, 2003
WILLIAM T. WALSH, CLERK

EMORY E. GIBSON, JR.,
Plaintiff,
v.

SUPERINTENDENT OF NEW JERSEY DEPARTMENT
OF LAW AND PUBLIC SAFETY — DIVISION OF
STATE POLICE; NEW JERSEY TURNPIKE AUTHORITY;
SEAN REILLY; J.W. PENNYPACKER;

PETER VERNIERO; RONALD SUSSWEIN;

JOHN FAHY; GEORGE ROVER; TREASURER OF
STATE OF NEW JERSEY; JOHN DOES 1-10,

Defendants.

OPINION
KUGLER, United States District Judge:

Plaintiff Emory E. Gibson, Jr. brought this action pursuant
to 42 U.S.C. §§1983 and 1985 claiming violations of his
constitutional rights under Article IV and the First, Fifth, Sixth
and Fourteenth Axwendments. Defendants move to dismiss the
complaint on several grounds. This Court concludes that

48a

Gibson’s constitutional claims for selective enforcement and
failure to train (as well as any claims that reasonably can be
construed to plead violations of the Fourth Amendment and
malicious prosecution) are time-barred, but that Gibson’s
constitutional claim for denial of access to the courts is nor
time-barred. The Court seeks further and more specific briefing
on this claim, however. Accordingly, the motion of Defendants
Trooper J.W. Pennypacker; Trooper Sean Reilly; the
Superintendent, New Jersey Department of Law and Public
Safety, Division of State Police; the Treasurer, State of New
Jersey, Treasury Department; former New Jersey Attorney
General Peter Verniero; and Deputy Attorneys General Ronald
Susswein, John Fahy, and George Rover will be granted in part,
and denied in part, as discussed below.' The accompanying
Order provides dates for submission of new motions to dismiss
and a date for oral argument.

I. FACTUAL BACKGROUND
A. Gibson’s Arrest

The facts are taken as true from the allegations in the
complaint. In the early morning of October 28, 1992, two New
Jersey State Troopers, Defendant J.W. Pennypacker and
Defendant Sean Reilly, stopped a car that was traveling on the
New Jersey Turnpike. Plaintiff Emory Gibson was in the back
seat of the car, and two other men were in the front seat. All
three occupants of the car were African American. The state

' _ Defendant New Jersey Turnpike Authority did not file a formal
motion to dismiss, but instead joined in certain parts of the State
Defendants’ motion by letter dated June 4, 2003. Because no motion was
formally filed, there is no need to grant or deny the New Jersey Turnpike
Authority’s request for relief, but the Authority is subject to the same
deadlines for filing new motions, as set forth in the accompanying Order, as
the other defendants.

49a

troopers searched the car and arrested the men for possession
of drugs.

Gibson alleges that the troopers had no reasonable
suspicion or probable cause to stop the car, to search the car, or
to arrest Gibson.

On April 21, 1994, Gibson was convicted of two counts of
drug offenses in the Superior Court of New Jersey, Salem
County, and sentenced to fifty years in prison.

B. Growing Awareness of Practice of Racial
Profiling

During a time period running approximately ten years,
beginning several years prior to Gibson’s arrest and extending
several years after his conviction, a growing public awareness
developed of racially discriminatory practices of the New
Jersey State Police, specifically with respect to automobile
stops along the New Jersey Turnpike, commonly known as
racial profiling. Even before racial profiling along the highways
of New Jersey came into public focus, the United States
Department of Justice initiated lawsuits in the 1970's against
the New Jersey State Police claiming that the department
engaged in racial discrimination in its employment practices.

A television program shown in 1989 featured complaints
and statistical data regarding a disproportionate number of
African American motorists being stopped and detained,
although often not arrested, along the Turnpike by New Jersey
State Troopers. The New Jersey State Police Superintendent at
that time responded to the television program in a videotaped
message, in which he supported the practices of the New Jersey
State Troopers and refused to gather data necessary to verify
the allegations of racial profiling.

In March 1996, a New Jersey trial court in the criminal
case of State of New Jersey v. Soto, 324 N.J. Super. 66, 734

50a

A.2d 350 (Law Div. 1996), suppressed evidence in the cases of
seventeen African American defendants who alleged that their
arrests on a southern portion of the New Jersey Turnpike
between 1988 and 1991 were the result of racially
discriminatory enforcement of the traffic laws by the New
Jersey State Police. Based on statistical data compiled by the
parties and testimony from several officers, the Soto court
found that the defendants had demonstrated that the police had
an institutional policy of racial profiling for stops along the
pertinent portion of the Turnpike and that the State Police
hierarchy had failed to monitor and control roadside stops and
to investigate the many claims of discrimination, all of which
had resulted in violations of the seventeen criminal defendants’
Fourteenth Amendment rights to equal protection and due
process and warranted suppression of evidence seized pursuant
to the roadside stops. The Soto decision received a large
amount of media and legal attention in New Jersey.

The State of New Jersey, through its Attorney General,
appealed the Soto decision, arguing that the statistical evidence
that minorities were stopped more often than Caucasians was
supported by the proposition that minorities are worse drivers
than Caucasians. Gibson maintains that this argument was
“repugnant,” inconsistent with the trial testimony, and is
another example exhibiting the State defendants’ deliberate
indifference to the unconstitutional practice of racial profiling.’

New Jersey State Troopers themselves, both current and
former, filed lawsuits alleging specific incidents of racial and

2 Although there is no indication in these pleadings of the outcome
of the appeal of the Soto decision, the Honorable Joel A. Pisano noted in an
opinion on a similar case that after the high profile Turnpike shooting of
four young men on April 22, 1999, Attorney General Verniero withdrew the
Soto appeal and admitted that the practice of racial profiling was real. See
White v. Williams, 179 F. Supp.2d 405, 411-12 (D.N.J. 2002).

Sla

ethnic discrimination, as well as a pervasive and condoned
atmosphere of discrimination, including racial profiling on the
highways and other roads of New Jersey. These lawsuits
include those filed by New Jersey State Troopers Vincent
Bellaran and Emblez Longoria. In Bellaran’s case, which was
heard in a non-jury trial in March of 1998 before the Honorable
Mary L. Cooper, United States District Judge for the District of
New Jersey, the court found that racial discrimination was
pervasive within the New Jersey State Police and that Bellaran
had been asked by supervisors to target African American
motorists.

Newspapers continued to report in 1997 on the statistical
data showing that minority drivers were disproportionately
targeted for traffic stops. On February 28, 1999, then
Superintendent of the New Jersey State Police, Carl Williams,
publicly condoned the practice of racial profiling and
maintained that there was a link between particular racial and
ethnic groups and particular drug trafficking.

C. New Jersey’s Response to Allegations of Racial
Profiling

Gibson alleges that the New Jersey State Police, and the
New Jersey Attorney General’s Office, not only failed to
properly train, supervise and monitor officers with respect to
race-based automobile stops, but they condoned and
encouraged the practice of racial profiling. Officer training
included representations that black people of African
American, Jamaican and Nigerian backgrounds, and Hispanic
people with lineage to several Latin American countries, were
most likely to be transporting drugs through New Jersey. These
representations were emphasized through the use of
sensationalized video and movie clips depicting members of
these racial minorities engaging in drug trafficking. Awards
were given to police officers who made the most arrests.

52a

Further, Gibson alleges that the New Jersey Attorney
General’s Office made half-hearted and misleading attempts to
respond to the growing awareness of the practice of racial
profiling within the New Jersey State Police and deliberately
withheld data and information that showed the pervasiveness
of the practice and how the New Jersey State Police hierarchy
condoned racial profiling. In December 1996, Defendant Peter
Verniero, who was then the Attomey General of New Jersey
(and is now a Justice of the New Jersey Supreme Court), began
examining the existing evidence of racial profiling in response
to inquiries by the United States Department of Justice, which
apparently was investigating the practice of racial profiling in
New Jersey. Verniero engaged Defendants Ronald Susswein,
John Fahy and George Rover, Deputy Attorneys General for the
State of New Jersey, to aid in the task. Gibson sues these four
Attorney General defendants in their individual capacities.

At that time, Defendants Verniero, Susswein, Fahy and
Rover knew that racial profiling within the New Jersey State
Police existed. Defendant Susswein previously had advocated
some form of racial profiling through a memorandum
circulated through the Office of the Attorney General. In
responding to the Department of Justice inquiries, these
defendants deliberately withheld extensive information which
they knew demonstrated, or tended to demonstrate, the
existence of racial profiling within the New Jersey State Police.

On April 20, 1999, Defendant Verniero published a report
entitled the Interim Report of the State Police Review Team
Regarding Allegations of Racial Profiling [hereinafter the
“Interim Report’}. The primary authors of the /nterim Report
allegedly were Defendants Verniero and Susswein. The report
conceded that the practice of racial profiling was real, but
Verniero and Susswein placed the blame on a small number of
individual troopers rather than acknowledging that racial
profiling was an entrenched institutional policy that the

53a

defendants knew of and encouraged. Evidence showing the
defendants’ knowledge and encouragement of the agency-wide
practice of racial profiling was deliberately withheld by
Defendants Verniero and Susswein. Gibson claims that the
issuance of this misleading report allowed the defendants to
maintain that they were diligently responding to allegations of
racial profiling, but the report did not provide any benefit to
Gibson in seeking to apply to the courts to end his
imprisonment.

Gibson alleges that all of these events cumulatively
establish “that numerous facets of NJSP training, custom,
procedures, protocols and culture constituted and/or contributed
to a climate within the NJSP supportive of racial hostility,
prejudice and profiling, which emphasized minorities as
suspects who should be subject to stop, search and arrest.”
(Compl., 941). Despite repeated and continuous notice that
New Jersey State Troopers on the Turnpike were engaging in
a practice of unlawful and unconstitutional stops of minority
drivers, the defendants did nothing to prevent this practice from
continuing.

Gibson sues the New Jersey Turnpike Authority
[hereinafter “NJTA”] because it contracts with the New Jersey
State Police to provide services on the Turnpike to patrol and
police public highways, and it “remains responsible for the
safety of travelers lawfully on its property including, but not
limited to, the law enforcement operations, policies and
practices that occur thereon.” (Compl., $7). The NJTA “and its
officials, officers, servants and employees, failed to take
adequate steps to prevent troopers from posing a danger to the
well-being and to the constitutional rights of minority motorists
on the Turnpike.” (Compl., $44).

S$4a

D. Gibson’s Prosecution

Gibson’s criminal trial went forward on April 20 and 21,
1994. He claims that in violation of the requirements of Brady
v. Maryland, 373 U.S. 83 (1963), and similar state laws, the
prosecution did not disclose information in its possession that
related to the New Jersey State Police’s practice of racial
profiling. That information, “which would have shown in all
probability that the stop was a product of racial profiling and
that Plaintiff was not guilty,” was deliberately suppressed by
Defendants “NJTA, the individually named Defendants and the
NJSP hierarchy.” (Compl., 954).

At Gibson’s trial, the prosecution relied on the testimony
of Defendants Reilly and Pennypacker, along with the
tes‘imony of a prosecution expert on drug interdiction and
valuation, Dennis Tulley. Gibson claims that Defendants
Verniero and Fahy were aware of information about Tulley that
would have been exculpatory in Gibson’s trial—specifically,
that Tulley had “a monthly African American arrest rate on the
Turnpike” as evidenced by a study of some troopers’ behavior
that was compiled for the Soto matter. (Compl., 457).

Five years after his conviction, on February 18, 1999,
Gibson filed a motion for post-conviction relief, challenging
the denial of his motion to suppress and requesting discovery
pursuant to that motion as a result of the findings of the Soto
opinion. The Superior Court, Law Division, denied that motion
on February 8, 2000, in part on the basis that Gibson had not
presented sufficient evidence of racial profiling and/or the
probable illegality of his stop and arrest.

Eight years after Gibson’s conviction, on January 29, 2002,
the Appellate Division of the New Jersey Superior Court
reversed the trial judge’s decision, “primarily because of
exculpatory materials finally uncovered in November of 2000
in proceedings separate from Plaintiff's, which tended to show

55a

that (1) Plaintiff was illegally stopped and arrested and (2)
Plaintiff was innocent.” (Compl., 63). The Appellate Division
ordered that Gibson could be released on bail upon application
to the trial court.

On April 19, 2002, the trial court granted Gibson’s motion
to dismiss and vacated his conviction on the ground “that there
was a colorable basis to believe that Plaintiff's stop and arrest
was the result of an unlawful racial profiling stop.” (Compl.,
765). Gibson’s conviction was vacated and the indictment was
dismissed with prejudice

E. Gibson’s Civil Rights Action

On November 14, 2002, Gibson filed this civil rights
action in federal court against the New Jersey State Trooper
Defendants, Pennypacker and Reilly; the Superintendent, New
Jersey Department of Law and Public Safety, Division of State
Police (in his or her official capacity); the New Jersey Turnpike
Authority; the Treasurer, State of New Jersey, Treasury
Department; former New Jersey Attorney General Peter
Verniero; and Deputy Attorneys General Ronald Susswein,
John Fahy, and George Rover. Gibson alleges that during the
bulk of his confinement, Defendants—particularly Verniero,
Susswein, Fahy and Rover—were aware of the evidence of
racial profiling which would have invalidated the convictions
of Gibson and others and that this information was exculpatory,
but that these defendants intentionally kept that information
secret.

Gibson claims that his unconstitutional arrest, conviction
and confinemeat were the result of the New Jersey State Police
policy, custom or practice of encouraging its officers to racially
profile Turnpike motorists in such a manner which seemingly
justifies the officers’ actions but in reality constitutes illegal
stops, searches, seizures and arrests of minority motorists,
without probable cause or reasonable suspicion. (Compl., 966).

56a

Gibson’s constitutional injuries also are the result of the
defendants’ policy of actively suppressing information about
racial profiling and misconduct of the New Jersey State Police.
(Compl., 67). These policies and practices were instituted and
maintained, during the times relevant to Gibson’s complaint,
with the knowledge and supervision of Defendant New Jersey
Turnpike Authority, the individually named defendants, and the
New Jersey State Police hierarchy, who had the ultimate
supervisory responsibility for all personnel in the New Jersey
State Police. (Compl., 4968, 69). Because all of the defendants
were aware of the allegations and information showing that the
New Jersey State Police and its officers had a policy of racial
profiling, particularly from the court’s findings in State v. Soto
that covered the same area of the Turnpike where Gibson was
arrested, their: (1) failure to conduct any meaningful
investigation or review of the New Jersey State Police policy,
custom or practice that resulted in the stop and search of
Gibson on October 28, 1992 and his subsequent eight years of
confinement; (2) deliberate suppression of information that
showed the widespread practice of racial profiling; and (3)
failure to train New Jersey State Police officers to end the
practice, to correct their abuse of authority, or to discourage the
unlawful use of their authority, caused Gibson to suffer a
constitutional deprivation. (Compl., 973-75).

The misconduct attributed to all of the defendants includes:
¢ Failing to properly discipline, restrict and control

employees, including Defendants Pennypacker and Reilly, who
were known to be engaging the practice of racial profiling;

¢ Failing to take adequate precautions in the hiring,
training, promotion and retention of police personnel, including
Defendants Pennypacker and Reilly;

¢ Failing to establish and/or assure the functioning of a
bona fide and meaningful departmental system for dealing with

57a

complaints, allegations and information about racial profiling,
and instead responding to such complaints with bureaucratic
resistance and official denials calculated to mislead the public;

* Intentionally suppressing known evidence of racial
profiling that would have benefitte? Gibson in his criminal trial
and subsequent appeals and collateral petitions.

(Compl., | 76).

As a result of Defendants’ misconduct, Plaintiff suffered
extreme emotional trauma and was wrongly incarcerated for
eight years. (Compl., $77).

Count I of the complaint seeks damages against al] of the
defendants under 42 U.S.C. §1983. This count alleges that
Defendants, acting under color of state law, deprived Gibson of
his “constitutional and civil right to meaningful access to the
courts, derived from Article IV, the First, Fifth, Sixth and
Fourteenth Amendments to the United States Constitution” and
“the right to be free from unconstitutional conviction and
imprisonment... .”(Compl., 981). The defendants caused these
constitutional deprivations by:

¢ Detaining Plaintiff without probable cause;

¢ Searching and seizing the car Plaintiff was in without
probable cause;

* Searching Plaintiff without probable cause;
¢ Falsely imprisoning Plaintiff;

¢ Improperly denying Plaintiff access to fair and
meaningful judicial proceedings during his criminal
trial, subsequent post-conviction proceedings and
separate civil suits by suppressing evidence beneficial
to Plaintiff in violation of Brady v. Maryland, similar
state law and ethical duties;

58a

¢ Depriving Plaintiff of his constitutional right to due
process;

* Depriving Plaintiff of his constitutional right to equal
protection of the laws;

¢ Imprisoning Plaintiff unconstitutionally for a charge
later vacated by motion of the State;

¢ Failing to train subordinates;
* Failing to supervise/control subordinates;

¢ Failing to correct the unconstitutional/discriminatory
practices of subordinates;

¢ Continually condoning and ratifying a history of
unconstitutional/discriminatory acts despite numerous
allegations over the years of discrimination based on
race;

¢ Improperly screening, hiring, training, supervising,
disciplining and retaining dangerous police officers.

(Compl., 981).

Gibson alleges that all of the above acts constitute
violations of his constitutional rights, but the defendants
prevented him from pursuing remedies for those violations
because of their withholding of racial profiling information.
Thus, “[blut for Defendants’ unlawful acts, Plaintiff would no*
have been denied meaningful access to the courts in his
criminal proceedings and post-conviction relief proceedings;
and would have been able to bring a civil cause of action
against Defendai:ts for Plaintiffs civil rights violations. As a
direct result of Defendants’ unlawful acts which denied
Plaintiff his right to access the courts, Plaintiff cannot seek
remedy by way of the causes of action mentioned in the
previous paragraph since they are either time barred or moot.”
(Compl., J] 83-84).

59a

Count [1 seeks injunctive relief from Defendant
Superintendent of New Jersey State Police. Count III alleges a
conspiracy under 42 U.S.C. §1983 to deprive Gibson of his
constitutional rights to meaningful access to the courts and to
be free from unconstitutional conviction and imprisonment.
Count IV alleges that Defendants conspired to violate Gibson’ s
constitutional rights on the basis of his race in violation of 42
U.S.C. §1985. Count V claims violations of Gibson’s state
constitutional rights. And Count VII alleges a violation of N.J.
Stat. Ann. §52:4C (mistaken imprisonment).’

Il. MOTION TO DISMISS

Defendants move to dismiss Gibson’s complaint on the
grounds that all of Gibson’s claims are time-barred; that
Defendants Verniero, Susswein, Fahy and Rover are entitled to
Eleventh Amendment immunity, absolute prosecutorial
immunity, and qualified immunity; and that the Treasurer, State
of New Jersey is entitled to Eleventh Amendment immunity.

A. Statute of Limitations

Defendants argue that Gibson’s claims regarding the
unconstitutionality of the automobile stop and search are barred
by the two-year statute of limitations because they accrued on
the date of the automobile stop in October 1992.‘ Gibson
argues that his claims did not accrue until his conviction was

3 The complaint does not contain a Count VI.

* The parties agree that a two-year limitations period applies to
Gibson's Section 1983 claims. In Wilson v. Garcia, 471 U.S. 261 (1985),
the Supreme Court held that the appropriate limitations period for actions
brought under Section 1983 is the state limitations period governing a tort
action for the recovery of damages for personal injuries. Wilson v. Garcia,
471 U.S. 261 (1985). ln New Jersey, a two-year statute of limitations
governs personal injury claims. N.J. Stat. Ann. §2A: 14-2.

60a

vacated on April 19, 2002 and, therefore, his complaint filed on
November 14, 2002 is timely.

Although the limitations period for a Section 1983 claim
is governed by state law, the accrual of the claim is governed by
federal law. “It is axiomatic that under federal law, which
governs the accrual of section 1983 claims, ‘the limitations
period begins to run from the time when the plaintiff knows or
has reason to know of the injury which is the basis of the
section 1983 action.’” Montgomery v. DeSimone, 159 F.3d 120,
126 (3d Cir. 1998) (quoting Genty v. Resolution Trust Corp.,
937 F.2d 899, 919 (3d Cir. 1991)) (emphasis added).

The Supreme Court has held that the accrual of a §1983
claim seeking damages for unconstitutional conviction or
confinement may be tolled when the §1983 claim overlaps with
an opportunity to pursue state remedies or federal habeas
corpus relief. Heck v. Humphrey, 512 U.S. 477 (1994). The
§1983 plaintiff in Heck filed a civil rights action against two
prosecutors and a government investigator while the plaintiff's
direct appeal of his manslaughter conviction was still pending
in state court. He sought money damages for his allegedly
unconstitutional conviction. In determining whether such an
action for money damages was available, the Court began by
noting that since §]983 “creates a species of tort liability,” the
common law of torts “defining the elements of damages and the
prerequisites for their recovery, provide the appropriate starting
point for the inquiry under §1983 as well.” 512 US. at 483.
The Court analogized Heck’s claim to acommon law malicious
prosecution claim because “unlike the related cause of action
for false arrest or imprisonment,” a malicious prosecution claim
allows a plaintiff to recover for unlawful imprisonment
pursuant to legal process. /d. at 484. A necessary element of a
malicious prosecution claim is the termination of the criminal
proceedings in favor of the accused:

6la

This requirement “avoids parallel litigation over the
issues of probable cause and guilt. . . and it precludes
the possibility of the claimant succeeding in the tort
action after having been convicted in the underlying
criminal prosecution, in contravention of a strong
judicial policy against the creation of two conflicting
resolutions arising out of the same or identical
transaction[s]. Furthermore, “to permit a convicted
criminal defendant to proceed with a malicious
prosecution claim would permit a collateral attack on
the conviction through the vehicle of a civil suit.”

512 U.S. at 484-85 (citations omitted).

For those reasons, the Court held that “the hoary principle
that civil tort actions are not appropriate vehicles for
challenging the validity of outstanding criminal judgments
applies to §1983 damages actions that necessarily require the
plaintiff to prove the unlawfulness of his conviction or
confinement, just as it has always applied to actions for
malicious prosecution.” /d. at 486.

Accordingly, “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 ‘.«: 2nce of a writ of habeas
corpus.” Jd. at 486-87. A cl. © for damages bearing that
relationship to a conviction c. ventence that has not been so
invalidated has not accrued. /d. Accordingly, a “district court
must consider whether a judgment in favor of the plaintiff
would necessarily imply the invalidity of his conviction or
sentence.” /d. If not, then the § 1983 action would be allowed to
proceed. /d.

62a

In a footnote, the Court provided an example of when a
§1983 claim would not have to wait until a conviction or
sentence has been invalidated: “For example, a suit for
damages attributable to an allegedly unreasonable search may
lie even if the challenged search produced evidence that was
introduced in a state criminal trial resulting in the §1983
plaintiff's still-outstanding conviction. Because of doctrines
like independent source and inevitable discovery, and
especially harmless error, such a §1983 action, even if
successful would not necessarily imply that the plaintiffs
conviction was unlawful.” (citations omitted). Heck v.
Humphrey, 512 U.S. at 487 n.7. See also Smith v. Holtz, 87
F.3d 108 (3d Cir. 1996) (extending Heck and holding that a
§1983 claim challenging the legality of a conviction did not
accrue until the potential for judgment in pending criminal
prosecution ceases to exist).

In Montgomery v. DeSimone, the Third Circuit held (also
in a footnote) that §1983 claims for Fourth Amendment
violations alleging false arrest and false imprisonment did not
necessarily implicate the validity of a conviction “[bJecause a
conviction and sentence may be upheld even in the absence of
probable cause for the initial stop and arrest ... .” 159 F.3d at
126 n.5. The court came.to this conclusion without conducting
a fact-based inquiry 2s to whether the underlying conviction
would, in fact, have been valid absent probable cause for the
initial stop and arrest.’ Therefore, because the accrual of the

§ __ This footnote in Montgomery appears to be the only contribution
that the i hird Circuit has made to an issue that has caused a split in the
circuits—that is, on a question of whether a §1983 claim that, if successful,
would have resulted in suppression of evidence (such as a Fourth
Amendment unreasonable search and seizure claim, rather than a claim like
malicious prosecution that necessarily negates the validity of a conviction)
is subject to the Heck accrual rule, whether a court should undertake a
fact-based inquiry to determine if the underlying conviction would still have

63a

§1983 plaintiff's false arrest and false imprisonment claims did
not hinge upon the resolution of the criminal charges in her
favor, the Third Circuit looked to when the plaintiff knew of
the injury for which she sought damages. Because a claim for
false arrest “covers damages only for the time of detention until
the issuance of process or arraignment, and not more,” and the
false imprisonment claim “relates only to her arrest and the few

been obtained even if the seized evidence would have been tainted by the
constitutional violation. The Second, Sixth and Ninth Circuits have held that
a court should undertake such a fact-based inquiry to determine if the §1983
claim accrued at the time of the violation or if had to wait until the
conviction was invalidated. See. e.g, Covington v. City of New York, 171
F.3d 117 (2d Cir. 1999) (holding that issue of fact existed as to nature of
evidence that had been available against § 1983 plaintiff in criminal case and
thus question under Heck whether success of §1983 plaintiffs false arrest
claim would necessarily imply invalidity of conviction, critical to the accrual
of §1983 claim, could not be determined as a n:atter ci law); Harvey v.
Waldron, 210 F.3d 1008 (9th Cir. 2000) (holding-that § : 983 claim premised
on illegal search and seizure did not accrue until conviction was dismissed
because evidence seized was essential to the conviction); Shamaeizadeh v.
Cunigan, 182 F.3d 391 (6th Cir. 1999).

The Seventh, Eighth and Elev-nth Circuits have held, on the other
hand, that all Fourth Amendment unreasonable search claims brought
against state officials under §1983 may go forward without a factual
examination of whether the conviction would have been obtained withor:
the fruits of the alleged Fourth Amendment violation. See. e g., Copus v.
City of Edgerton, 151 F.3d 646, 648-49 (7th Cir. 1998) (holding that all
§1983 Fourth Amendment claims “may be brought immediately” and that
district court need not “speculate” as to whether seized evidence would have
been admissible anyway); Simmons v. O’Brien, 77 F.3d 1093, 1095 (8th Cir.
1996) ‘holding that because harmless error analysis applies to confessions
obtained in violation of the Fifth Amendment, as with Fourth Amendment
claims, a soerced-confession claim in a §1983 action does ~ »t necessarily
imply invalidity of conviction); Datz v. Kilgore, §1 F.3d25z, 253 n. 1 (11th
Cir. 1995) (holding that Heck “is no bar to Datz’ civil action because, even
if the pertinent search did violate the Federal Constitution, Datz’ conviction
might stil] be valid considering such doctrines as inevitable discovery,
independent source, and harmless error”)..

64a

hours she was detained immediately following her arrest,” the
court concluded that the plaintiff reasonably knew of the
injuries that formed the basis of her §1983 claims on the night
of her arrest. /d. at 126. The court held that the §1983 claims
for false arrest and false imprisonment, filed more than two
years after the plaintiff's arrest, were time-barred. Jd.

1. Gibson’s Fourth Amendment and Malicious
Prosecution Claims

Defendants here argue that to the extent Plaintiff Gibson
_ alleges violations of his Fourth Amendment rights and seeks
damages for an unreasonable stop and search, those claims are
time-barred because, consistent with the reasoning of
Montgomery v. DeSimone, those claims fall outside the Heck
accrual rule and Gibson knew of his injuries on the date of the
stop in October 1992. Defendants also argue that to the extent
Gibson alleges a constitutional claim for malicious prosecution,
that claim fails because Gibson cannot establish one essential
element—absence of probable cause for the initiation of
criminal proceedings.

This Court agrees. To the extent that Gibson seeks
damages for ar unreasonable stop and search or unlawful arrest
in violation of the Fourth Amendment, success on those claims
would not necessarily have demonstrated the invalidity ofhis
conviction, according to Montgomery v. DeSimone. They,
therefore, do not fall within the Heck rule, and they accrued
when the stop and search occurred in October 1992. They are
thus time-barred here. As for a malicious prosecution claim,
Gibson represents that he is not bringing such a claim. But his
complaint could be construed as seeking damages for an
unlawful conviction and confinement, and those damages are
recoverable on a claim for malicious prosecution—like the

—claims in Heck and Smith—and are not recoverable on a claim
based on an unlawful stop, search, arrest or imprisonment.

65a

Thus, to the extent that Gibson brings a claim for malicious
prosecution, that claim is time-barred.

2. Gibson’s Selective Enforcement Claims

Apart from claims based on Fourth Amendment violations
or malicious prosecution, as explained in his brief in opposition
to this motion to dismiss, Gibson maintains that his “complaint,
in large part, is based on a claim of selective enforcement in
violation of the Fourteenth Amendment.” (P1. Br., at 23-24).
The relevant question, therefore, is whether such a claim is
subject to the Heck accrual rule. If not, the inquiry turns to
when Gibson knew or had reason to know of his constitutional
injury. Montgomery v. DeSimone, 159 F.3d at 126.

Selective enforcement in the form of racial profiling can
constitute a violation of a person’s right to equal protection and
is actionable under §1983. Carrasca v. Pomeroy, 313 F.3d 828,
834 (3d Cir. 2002). To prevail on an equal protection claim in
the racial profiling context, a plaintiff must show that the
challenged law enforcement practice had a discriminatory
effect and was motivated by a discriminatory purpose. /d.

The Supreme Court held in Whren v. United States, 517
U.S. 806, 813 (1996), in the context of an automobile stop, that
although selective enforcement can violate the equal protection
clause, it has no bearing on the question of whether a search or
seizure was unreasonable under the Fourth Amendment. See
also Carrasca v. Pomeroy, 313 F.3d at 836 (“The fact that there
was no Fourth Amendment violation does not mean that one
was not discriminatorily selected for enforcement of a law.
Plaintiffs’ equal protection claims under the Fourteenth
Amendment require a wholly separate analysis from their
claims under the Fourth Amendment.”). Thus, a stop or an
arrest may be otherwise valid even though the arresting officers
engaged in selective enforcement in choosing to make the stop
or arrest. See Rogers v. Powell, 120 F.3d 446, 453 n.5 (3d Cir.

66a

1997) (“We acknowledge that an arrest is not rendered invalid
by the fact that the basis for the arrest, though legitimate, was
merely pretextual.”) (citing Whren)); see also Desi’s Pizza, Inc.

v. City of Wilkes-Barre, 321 F.3d 411, 424-25 (3d Cir. 2003)
(“It is well established . . . that selective prosecution may
constitute illegal discrimination even if the prosecution is
otherwise warranted.”) Put another way, even if Gibson’s
conviction had been affirmed through the channels of state
appellate review, and a petition by Gibson for federal habeas
corpus relief denied, unlike a §1983 claim for malicious
prosecution, he could still maintain a §1983 action for money
damages on the grounds that law enforcement engaged in
selective enforcement in violation his equal protection rights,
and a successful judgment on that §1983 claim would have no
effect on his conviction or confinement. Under footnote 5 of
the Montgomery v. DeSimone opinion, the question of whether
an equal protection violation would have justified suppression
of the seized evidence and, if so, what effect that suppression
would have had on Gibson’s conviction does not seem to be an
inquiry that the Third Circuit finds relevant to a Heck accrual
analysis. Consequently, like the Third Circuit found in
Montgomery v. DeSimone, this Court finds that Gibson’s
selective enforcement claims “are not the type of clairns
contemplated by the Cou

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0609%3A2. Public record. Not legal advice.