Supplemental Brief — Verniero v. Gibson (No. 05-779)

No. 04-3949 7

evidence and illegal identification procedure raised in Heck,

has caused some courts—including this one in Gauger—to

conclude that certain Fourth Amendment claims also do not

accrue until after the defendant’s conviction has been

invalidated. See, e.g., Gauger, 349 F.3d at 362; Harvey v.

Waldron, 210 F.3d 1008, 1015 (9th Cir. 2000) (holding that

Fourth Amendment claims based on illegal search and

seizure of evidence are not cognizable until the conviction is

overturned or charges dismissed); Covington v. City of New

York, 171 F.8d 117, 124 (2d Cir. 1999) (finding

that generally false arrest claims accrue at the time of

arrest, but that if success in the § 1983 case would “imply

the invalidity of a conviction in a pending criminal prosecu-

tion,” it does not accrue “so long as the potential for a

judgment in the pending criminal prosecution continues

to exist”).

Heck itseif instructs that a district court must:

consider whether a judgment in favor of the plaintiff

would necessarily imply the invalidity of his convic-

tion or sentence; if it would, the complaint must be

dismissed unless the plaintiff can demonstrate that the

conviction or sentence has already been invalidated.

But if the district court determines that the plaintiff’s

action, even if successful, will not demonstrate the

invalidity of any outstanding criminal judgment against

the plaintiff, the action should be allowed to proceed, in

the absence of some other bar to the suit.

512 U.S. et 487 (emphasis in original) (footnotes omitted).

Footnote seven in Heck anticipates at least some Fourth

Amendment cases. It suggests that despite the general rule

of Heck, a suit for damages arising from an unreasonable

search could go forward as a § 1983 claim without invalidat-

ing a criminal prosecution, because of the independent

source or inevitable discovery doctrines. In Gonzalez, we

saw two implications in the footnote: “(i) a claim based on

an unlawful search or arrest may be brought immediately,

8 No. 04-3949

because a violation of the fourth amendment does not

necessarily impugn the validity of a conviction—the evi-

dence may be properly admitted anyway, or it may be

excluded and the defendant convicted on _ other

evidence—and (ii) a claim of damages based on the injury

of being convicted is impermissible until the conviction has

been overturned.” 133 F.3d at 553 (internal quotation

marks omitted).

In Booker v. Ward, we interpreted Heck to allow a false

arrest claim to go forward before the defendant’s conviction

was invalidated:

[A] wrongful arrest claim, like a number of other Fourth

Amendment claims, does not inevitably undermine a

conviction; one can have a successful wrongful arrest

claim and still have a perfectly vaiid conviction. Al-

though in this case the Illinois Appellate Court’s

conclusion that Booker’s confession was the inadmissi-

ble product of an unlawful arrest ultimately resulted in

the dismissal of murder charges against Booker, in

many cases, the prosecutor will have other witnesses or

other evidence that will support a retrial.

94 F.3d at 1056 (citations omitted). The approach that the

court took looked to the legal nature of the wrongful arrest

claim, rather than to the specific facts of the case.

The Gauger opinion, in contrast, rejects an across-the-

board approach to Fourth Amendment claims in favor of

a case-by-case examination under which at least some

false arrest claims would not accrue until after the convic-

tion was invalidated:

It might be argued that Gauger could have sued right

after his arrest, even if he might also have waited

until his criminal conviction was thrown out. But we do

not think that such a conclusion would be consistent

with Heck. For he could not knock out the arrest

No. 04-3949 9

without also (by virtue of Wong Sun [v. United States,

371 U.S. 471 (1963)]) invalidating the use in evidence of

his admissions, without which, as we have said, he

could not be convicted. Heck, to repeat, says that a

criminal defendant can’t sue for damages for violation

of his civil rights, if the ground of his suit is inconsis-

tent with his conviction having been constitutional,

until he gets the conviction thrown out.

349 F.3d at 362. See also Wiley, 361 F.3d at 997-98.

In our view, although it is conceivable that there are

factual differences among Booker’s, Gauger’s, and Wallace’s

cases, the distinctions are unimportant in the end. In

Gauger’s case, the police suspected Gauger of murdering his

parents. 349 F.3d at 356. They brought him in for question-

ing and Gauger made several incriminating statements

that, according to his version of the interrogation, were

stated as hypotheticals. Jd. at 357. Gauger was convicted

and sentenced to death. On appeal, the Illinois Appellate

Court determined that his statements were inadmissable as

the product of an unlawful arrest. Jd. The court ordered a

new trial, but the state never retried him anu the charges

were dropped after two members of the Outlaws motorcycle

gang confessed killing Gauger’s parents. Jd. at 358. The

resemblance to Wallace’s case is plain.

It 1s true that in Booker’s case, as in Wallace’s, the

state appellate court first remanded for an attenuation

hearing before ordering a new trial. See Booker v. Ward,

94 F.3d at 1054. The result of the attenuation hearing was a

conclusion that the confession was sufficiently attenuated

from the defendant’s unlawful arrest, but the Illinois

Appellate Court reversed. Jd. Just as in Wallace’s case, at

this point the prosecution filed a motion for a nolle prosequi,

and the court dropped the charges against Booker. /d. It is

_ telling that in, both Booker’s and Wallace’s cases, the state

appellate court formally decided that the defendant’s

10 No. 04-3949

criminal prosecution could continue even though the arrests

were unlawful. Only the pragmatic judgment of the prosecu-

tors, which could have rested on a conclusion that it was

unlikely that any additional evidence existed, or on a lack

of resources for further investigation, or any of a number of

other factors, caused the cases to end. The rule we articu-

lated in Booker v. Ward recognizes that ex ante it is not

readily apparent which criminal cases might proceed

despite the consequences of the successful Fourth Amend-

ment challenge. This, in our view, argues against a rule

that requires judges several years after the event to

decide whether a particular Fourth Amendment chal-

lenge would have been the death knell of the prosecution.

Even if a clear rule is what is needed, we still need to

decide between options (1) and (2) above: that is, between a

rule saying that all claims of this type accrue at the time of

injury, and a rule that they all accrue only when the

criminal conviction has been set aside. The footnote in Heck

to which we referred earlier persuades us that the Supreme

Court did not contemplate the second rule, as it took care to

suggest that the statute of limitations should begin running

on at least some claims at the time of the original injury.

Although the Court refrained from holding that all Fourth

Amendment claims accrue immediately, it had no need to

reach that issue in Heck. We conclude that the approach

taken by Booker v. Ward, while an arguable extension of

Heck, is an extension that is justifiable in light of the

policies behind both the statute of limitations and the need

to avoid unnecessary interference with the outcomes of

criminal proceedings.

To the extent, therefore, that Gauger eschews a clear rule

for false arrest claims in favor of an evaluation of the

evidence, we disapprove its approach and instead reaffirm

our holding in Booker v. Ward that a Ҥ 1983 unlawful

arrest claim... accrue[s] on the day of [ ] arrest.” Jd. at

1056-57. Individuals and attorneys who wish to preserve a

No. 04-3949 11

claim for false arrest or similar Fourth Amendment viola-

tions should file their civil rights action at the time

of arrest. It will still be possible, of course, for a district

court to stay any such action until the criminal proceedings

are concluded, should it conclude in its discretion that a

stay would be useful. We note as well that we are address-

ing only the question of accrual; other doctrines, such as

equitable tolling, may also affect the time in which a

particular suit may be brought. See Heck, 512 U.S. at 489

(reserving judgment on whether equitable tolling applies in

this context).

One additional qualification is necessary, which in our

view answers the concerns expressed in the dissent. Heck

itself recognized that it is possible for a § 1983 claim

based on false arrest or a similar Fourth Amendment

violation “necessarily [to] imply the invalidity of [a plain-

tiff's] conviction or sentence,” Heck, 512 U.S. at 486 n.6, 487

(example of plaintiff convicted of resisting arrest

who challenges legality of arrest). The case to which the

Court pointed, however, is one in which the fact of a Fourth

Amendment violation is an element of the claim. In that

relatively uncommon set of cases, there is an independent

reason to insist that a plaintiff wait to sue until the crimi-

nal conviction has been set aside; if she does not, the

possibility of inconsistent rulings on the validity uf the

arrest is too great. Our ruling addresses the normal run

of cases, in which the Fourth Amendment violation af-

fects only the evidence that might or might not be presented

to the trier of fact. In those instances, we are convinced

that a clear accrual rule is superior to a case-by-case

approach.

As the parties have noted, the question of the proper

rule for accrual is an issue that has divided our sister

circuits. Although their reasoning varies, the Second,

Fourth, Fifth, Sixth, and Ninth Circuits have held that false

arrest claims that would undermine the defendant's

12 No. 04-3949

conviction cannot be brought until the conviction is nulli-

fied. See Harvey, 210 F.3d at 1015 (acknowledging circuit

split and holding flatly that “a § 1983 action alleging illegal

search and seizure of evidence upon which criminal charges

are based does not accrue until the criminal charges have

been dismissed or the conviction *as been overturned”);

Covington, 171 F.3d at 124; Shamaeizadeh v. Cunigan, 182

F.3d 391, 399 (6th Cir. 1999) (explicitly rejecting suggestion

that § 1983 illegal search claims accrue at the time of

injury, since such a rule would “misdirect the criminal

defendant” from focusing on “mounting a viable defense to

the charges against him”); Cabrera v. City of Huntington

Park, 159 F.3d 374, 380 (9th Cir. 1998) (holding that

success on false arrest claim would “necessarily imply” that

conviction for disturbing the peace was invalid as not based

on probable cause); Brooks v. City of Winston-Salem, 85

F.3d 178, 183 (4th Cir. 1996) (Heck bars civil rights claims

“when a § 1983 plaintiffs success on a claim that a

warrantless arrest was not supported by probable cause

necessarily would implicate the validity of the plaintiffs

conviction or sentence”); Mackey v. Dickson, 47 F.3d 744,

746 (5th Cir. 1995) (stating that “a claim of unlawful arrest,

standing alone, does not necessarily implicate the validity

of a criminal prosecution following the arrest,” but staying

the civil action until the criminal prosecution was com-

pleted).

The First, Third, Eighth, Tenth, and Eleventh Circuits

have held that false arrest claims accrue at the time of the

arrest. Nieves v. McSweeney, 241 F.3d 46, 52-53, 52 n.4 (1st

Cir. 2001) (stating that “it is pellucid that all clain\= based

on the officers’ physical abuse or arrest of the appcllants

accrued at the time that those events occurred . . . because

the appellants had ample reason to know of the injury then

and there,” and characterizing as “rare and exotic” the

“circumstances in which a section 1983 claim based on a

warrantless arrest will not accrue at the time of the ar-

No. 04-3949 13

rest”); Beck v. City of Muskogee Police Dep't, 195 F.3d 553,

558, 559 n.4 (10th Cir. 1999) (“We generally disagree with

the holdings in [Covington and Mackey] because they run

counter to Heck’s explanation that use of illegally obtained

evidence does not, for a variety of reasons, necessarily imply

an unlawful conviction.”); Montgomery v. De Simone, 159

F.3d 120, 126 (3d Cir. 1998) (finding § 1983 false arrest

claim not barred by Heck); Simmons v. O’Brien, 77 F.3d

1093, 1095 (8th Cir. 1996) (finding § 1983 coerced confes-

sion claim not barred by Heck); Datz v. Kilgore, 51 F.3d 252,

253 n.1 (11th Cir. 1995) (per curiam) (finding § 1983 illegal

search claim not barred by Heck). By aligning ourselves

with one side of this debate, we do not break any new

ground.

B. False Confession Claim

Wallace also asserts a “false confession” claim that he

claims is actionable under the Fourth Amendment, relying

on the following language in Gauger:

{Gauger’s] incarceration resu'ted from the combina-

tion of a false arrest with (if his testimony is believed)

a false account of his interrogation. If his testimony

is believed, therefore, the seizure of his person was from

the beginning to the end of his incarceration unreason-

able, and shouldn’t that bring the allegedly fraudulent

account of his interrogation under the Fourth Amend-

ment?

349 F.3d 360. In support of his claim, Wallace tries to

distinguish a “continuing Fourth Amendment violation”

from the “continuing seizure” theory discussed in Justice

Ginsburg’s concurring opinion in Albright v. Oliver, 510

U.S. 266 (1994). See id. at 279 (Ginsburg, J., concurring).

H's efforts are necessary, at least in this court, because

we have already rejected a “continuing seizure” theory in

the Fourth Amendment context. See McCullah v. Gadert,

14 No. 04-3949

344 F.3d 655, 661 (7th Cir. 2003) (citing Reed v. City of

Chicago, 77 F.3d 1049, 1052 n.3 (7th Cir. 1996)). Nonethe-

less, we find them unavailing. Wallace tries to find some

support for it in Chavez v. Martinez, 538 U.S. 760 (2003),

but as we read that case it dealt only with the Fifth Amend-

ment and the due process clauses. We reject the idea of a

stand-alone “false confession” claim based on the Fourth

Amendment, rather than the Fifth Amendment or the due

process clauses.

C. Fourteenth Amendment Claim

Finally, Wallace tries characterizing his false confes-

sion claim as a violation of his Fourteenth Amendment

right to a fair trial. Wallace contends that our decision

in Newsome v. McCabe, 256 F.3d 747 (7th Cir. 2001), allows

for a “false confession” claim as a due process violation. In

Newsome, we affirmed the district court’s decision to deny

qualified immunity to two officers who had withheld

exculpatory evidence from the defendant. /d. at 753. The

reason was because, under Brady v. Maryland, 373 U.S. 83

(1963), officers who withhold such material violate a defen-

dant’s right to a fair trial. 256 F.3d at 752. See also Jenco v.

City of Chicago, 286 F.3d 994, 999 (7th Cir. 2002) (allowing

plaintiff to amend complaint to assert due process claim

against police officers who withheld evidence); Jones 1

Chicago, 856 F.2d 985 (7th Cir. 1988) (allowing claim

against officers who allegedly fabricated evidence and

concealed exculpatory evidence to go forward).

As these brief summaries demonstrate, Newsome, lenco,

and similar cases do not stand for the proposition that there

is a free-standing due process claim whenever

unfair interrogation tactics (short of those that may

shock the conscience and thereby implicate the Supreme

Court’s substantive due process rulings) are used to

obtain a confession. Instead, they are grounded in tradi-

No. 04-3949 15

tional notions of what is required for a fair trial, including

the Brady right to be given exculpatory material. In the

end, all Wallace has is a complaint about the arrest and the

subsequent confession, and that is the claim we have found

to be time-barred. He cannot escape that result merely by

re-characterizing the claim under a different part of the

Constitution

The City argued in the alternative that Wallace was

not entitled to bring his suit under the Heck rule be-

cause the state court proceedings did not conclude in his

favor. It reasons that the state trial court found that his

confession was voluntary; that this finding was not dis-

turbed as a matter of Illinois law when the state appellate

court reversed and remanded the trial court’s tudgment;

and that Wallace cannot prevail in his § 1983 action if this

central fact is taken as established. Because we have

resolved this appeal in favor of all three defendants on the

statute of limitations ground, we decline to reach the City’s

alternative argument. It depends centrally on the intrica-

cies of the law of collateral estoppel in Illinois, which is a

topic on which all we could do in any event is to follow the

Illinois courts to the best of our ability

iit/i Mitis Lt Lil , l i pil ali Ly

The judgmeni of the district court is AFFIRMED

POSNER, Circuit Judge, dissenting from denial of rehear-

ng en banc. The panel decision creates @n intercircuit

1a recurrent issue: when does aclaim for damages

rising out of a false arrest or other search or seizure

16 No. 04-3949

forbidden by Fourth Amendment, or a coerced con-

fession forbiauen by the due process clause of the Fifth

Amendment, accrue, when the fruits of the search or the

confession were introduced in the claimant’s criminal trial,

and he was convicted? The panel holds that, except in the

rare case in which a violation of the Fourth Amendment is

an element of the crime with which the defendant is

charged, it always accrues at the time of the arrest, search,

or confession. Every other case to address the issue,

including our own Gauger v. Hendle, 349 F.3d 354 (7th Cir.

2003), holds that it usually accrues then, but not if the

Fourth or Fifth Amendment claim, if valid, would upset the

conviction. If it would, the claim does not accrue unless and

until the conviction is vacated. In other words, a civil rights

suit is not a permissible vehicle for a collateral attack on a

conviction.

That is the holding of Heck v. Humphrey, 512 U.S. 477

(1994). The Court said that the district court must “consider

whether a judgment [in the civil rights suit] in favor of the

plaintiff would necessarily imply the invalidity of

his conviction or sentence; if it would, the complaint must

be dismissed uxless the plaintiff can demonstrate that the

conviction or sentence has already been invalidated.” Jd. at

486-87. The Court gave the following example of “a § 1983

action that does not seek damages directly attributable to

conviction or confinement but whose successful prosecution

would necessarily imply that the plaintiff’s criminal

conviction was wrongful”: “A state defendant is convicted of

and sentenced for the crime of resisting arrest, defined as

intentionally preventing a peace officer from effecting a

lawful arrest. ...He then brings a § 1983 action against

the arresting officer, seeking damages for violation of his

Fourth Amendment right to be free from unreasonable

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

would have to negate an element of the offense of which he

has been convicted. Regardless of the state law concern-

No. 04-3949 17

ing res judicata, .. . the § 1983 action will not lie.” 512 U.S.

at 486 n. 6 (emphasis in original). Faced with this

flat statement, the panel carves the exception to its new

rule that I mentioned in the first paragraph but does not

give a reason for limiting the Court’s exception to the

particular illustration that the Court gave. The panel

says only: “we are convinced that a clear accrual rule is

superior to a case-by-case approach.” It does not explain the

source of its conviction.

Its accrual rule is not “clear,” as I'll point out; it is also

inconsistent with the principles of accrual. A suit cannot be

filed—the claim on which it is based cannot have ac-

crued—at a time when, because a condition precedent

to suit has not been satisfied, the suit must be dismissed.

The panel holds that the suit must be filed within the

limitations period for section 1983 suits (usuelly two years)

from the date of the arrest, search, or, as in this case,

confession, even if at the end of the two years the plain-

tiff’s conviction has not been vacated and even if the only

evidence of his guilt presented at his criminal trial was the

challenged evidence or confession. This is so, the panel

holds, even though, to quote Heck, a judgment in the

plaintiff's favor in the civil suit “would necessarily imply

the invalidity of his conviction” because it would wipe

out all of the evidence against him.

And if the plaintiff waits to sue until his conviction is

vacated, he will not have the full statutory period within

which to sue because he will be able to avoid dismissal only

by appealing to the doctrine of equitable tolling. (That’s

assuming equitable tolling is available in Heck cases, a

question the panel leaves open.) Equitable tolling permits

a plaintiff to delay suing beyond the statutory lhmitations

period if he is unable despite all due diligence to sue within

the period; but as soon as he is able to sue he must. He is

denied the benefit of the full statutory period. Unterreiner

v. Volkswagen of America, Inc., 8 F.3d 1206, 1213 (7th Cir.

18 No. 04-3949

1993); Cada v. Baxter Healthcare Corp., 920 F.2d 446, 452-

53 (7th Cir. 1990).

So the panel’s decision puts the squeeze on these plain-

tiffs, contrary to normal principles of accrual, which do not

force you—in fact do not allow you—to sue before you have

a claim. If you have been convicted and success on your civil

rights claim would undermine your conviction, you have no

civil rights claim unless and until you get the conviction set

aside. If the search turned up no evidence, or the confession

was excluded at the criminal trial, or the other evidence of

guilt was overwhelming, the claim does not challenge the

conviction and so it accrues at the time of the search. But

that is not every case.

The proper response is to adopt a presumption against the

unlikely result. (The panel does not discuss that alterna-

tive.) The presumption would be that even if the plaintiff’s

Fourth or Fifth Amendment defense had prevailed in the

criminal proceeding against him, he still would have been

convicted, either because the violation had not produced

evidence used against him in that proceeding or because,

though it had, there was plenty of other evidence to convict

him. The presumption would be rebutted if, for example, the

only evidence of his guilt was evidence seized in a search

that he challenges in his section 1983 suit. This is not a

- hypothetical case; it is our twin Okoro cases, Okoro v.

Bohman, 164 F.3d 1059, 1061 (7th Cir. 1999), and Okoro v.

Callaghan, 324 F.3d 488 (7th Cir. 2003). The plaintiff, who

had been convicted of a drug offense on the basis of heroin

found during a search of his home, brought a federal civil

rights suit in which he claimed that he had offered to sell

the police jewels (which he claimed they stole from him in

response to his offer), not drugs. His conviction was never

reversed or otherwise nullified. We held the suit barred by

Heck because if he was believed he should not have been

convicted, since the heroin was essential to the conviction:

and so his Fourth Amendment suit for the allegedly stolen

No. 04-3949 19

jewelry was barred. Hudson v. Hughes, 98 F.3d 868, 872

(5th Cir. 1996), is a similar case with the same result.

Another clear case is Gauger itself. His conviction, we

pointed out, “rested crucially on the statements that he

made to the police when he was questioned after being

arrested. Earlier we said that he might well have been

prosecuted even if his version of the interrogation had been

accepted, because his version was incriminating though not

as much so as the prosecutors’ version. With no statement

at all in evidence, however, he could not have been con-

victed of guilt of his parents’ murder beyond a reasonable

doubt; the other evidence——the lack of forced entry or signs

of struggle, for example—was probative merely as corrobo-

ration of his statements construed as a confession or at

least as damaging admissions. So when he showed that the

statements were the product of a false arrest and hence

were inadmissible at his criminal trial, he successfully

impugned the validity of his conviction, as the state implic-

itly conceded when it dropped the charges against him

following the reversal of his conviction.” 349 F.3d at 361-62.

There will be tough borderline cases, but the tough cases

are not resolved by the decision today. They will simply

be fought out as equitable-tolling cases rather than ac-

crual cases—if equitable tolling is available, a question on

which the panel, as I noted, reserves judgment: so much for

the panel’s having adopted a “clear rule.” If equitable tolling

is unavailable, then Fourth and Fifth Amendment claim-

ants will automatically file within the statutory period

dated from the search—-and then plead with the district

court to disobey Heck and not dismiss the suit, even if it is

not yet ripe because the conviction has not been set aside

and its validity depends on the validity of the search. As the

Sixth Circuit sensibly observed in Shamaeizadeh uv.

Cunigan, 182 F.3d 391, 399 (6th Cir. 1999), “just as a

convicted prisoner must first seek relief through habeas

20 No. 04-3949

corpus before his § 1983 action can accrue, so too should the

defendant in a criminal proceeding focus on his primary

mode of relief—mounting a viable defense tc the charges

against him—before turning to a civil claim under § 1983.”

The panel does not discuss that observation.

The panel denies that it is creating an intercircuit

conflict. It says that there is already a conflict and it is just

taking sides. Citing five cases, the panel states flatfootedly:

“The First, Third, Eighth, Tenth, and Eleventh Circuits

have held that false arrest claims accrue at the time of the

arrest .... By aligning ourselves with one side of this

debate, we do not break any new ground.” That is incorrect.

None of those cases hold that such claims always accrue at

the time of arrest. All they hold is that normally a Fourth

Amendment claim accrues them. Not one of them even says

(as distinct from holds) that it always does, and two of the

five explicitly allow for Jater accrual in exceptional cases.

The five cases are Nieves v. Sweeney, 241 F.3d 46, 52-53

(1st Cir. 2001); Beck v. City of Muskogee Police Dept., 195

F.3d 553, 558 (10th Cir. 1999); Montgomery v. De Simone,

159 F.3d 120, 126 (3d Cir. 1998); Simmons v. “’Brien, 77

F.3d 1093, 1097 (8th Cir. 1996), and Datz v. Kilgore, 51 F.3d

252, 253 n. 1 (11th Cir. 1995) (per curiam). Nieves acknowl-

edges that there may be cases “in which a section 1983

claim based on a warrantless arrest will not accrue at the

time of the arrest.” 241 F.3d at 52 n. 4. Even the passage

that the panel quotes from Nieves acknowledges that a

section 1983 claim does not always accrue at the time of

arrest. Id. Beck also acknowledges such a possibility. 195

F.3d at 558-59. In Montgomery, the plaintiff’s claims, which

were for false arrest and false imprisonment, were unre-

lated to the outcome of the criminal prosecution against her.

Her “claim for false arrest .. . covers damages only for the

time of detention until the issuance of process or arraign-

ment, and not more. In addition, Montgomery’s section 1983

false imprisonment claim relates only to her arrest and the

No. 04-3949 21

few hours she was detained immediately following her

arrest. Montgomery therefore reasonably knew of the

injuries that form the basis of these 1983 ciaims on the

night of her arrest.” 159 F.3d at 126 (citations omitted).

In Datz, a search case, the court held that the plaintiff did

not have to wait until the outcome of his criminal cas to

bring his civil case because it was uncertain whether

a ruling in the civil case that Datz’s search had been illegal

would be inconsistent with his criminal conviction, for “even

if the pertinent search did violate the Federal Constitution,

Datz’ conviction might still be valid considering such

doctrines as inevitable discovery, independent source, and

harmless error.’ 51 F.3d at 253 n. 1. Since Datz was

convicted of being a felon in possession of a firearm, and the

firearm was found in the search, it might seem that his

conviction could not coexist with invalidating the search.

But as the state court that upheld his conviction noted,

“ammunition for the weapon also was found in two locations

in appellant’s house. The police evidence custodian testified

appellant contacted him numerous times, by phone and in

person, seeking return of ‘his AR-15 rifle.’” Datz v. State,

436 S.E.2d 506, 509 (Ga. App. 1993). If there is untainted

evidence here, the panel’s result might well be correct, but

there is no discussion of the other evidence in its opinion. In

Simmons the only issue discussed is whether admission of

a coerced confession can be a harmless error; as far as

appears, no issue was made of whether the admission of the

confession had been harmless. 77 F.3d at 1094-95. The

panel does not discuss Montgomery, Datz, or Simmons; its

characterization of them (e.g., “finding § 1983 coerced

confession claim not barred by Heck”) is consistent with the

principle that the claim usually accrues later.

The cases that the panel acknowledges are in conflict with

its accrual rule are, besides Gauger, Harvey v. Waldron, 210

F.3d 1008, 1015 (9th Cir. 2000); Shamaeizadeh v. Cunigan,

22 No. 04-3949

supra, 182 F.3d at 399; Covington v. City of New York, 171

F.3d 117, 124 (2d Cir. 1999); Cabrera v. City of Huntington

Park, 159 F.3d 374, 380 (9th Cir. 1998); Brooks v. City of

Winston-Salem, 85 F.3d 178, 183 (4th Cir. 1996), and

Mackey v. Dickson, 47 F.3d 744, 746 (5th Cir. 1995). The list

is incomplete. Mysteriously umitted, without comment, are

Uboh v. Reno, 141 F.3d 1000, 1006-08 (11th Cir. 1998), and

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

curiam). Nieves, at least, must be added to the list along

with Calero-Colon v. Betancourt-Lebron, 68 F.3d 1, 4 (1st

Cir. 1995), cited in Nieves, as well as our decision in Booker

v. Ward, 94 F.3d 1054, 1056 (7th Cir. 1996), where we said,

examining the proceedings in the Illinois courts, “that

success on Booker’s unlawful arrest claim would not

necessarily undermine the validity of his conviction.” That's

the test, all right. And note that Beck, one of the cases the

panel cites for its rule, expressly declined to reject

Covington. 195 F.3d at 559 n. 4.

The panel may have been misled by the reference in

Harvey v. Waldron, supra, 210 F.3d at 1015, to “a split in

the circuits.” The court in Harvey mischaracterizes the

approach of courts (including itself!) that reject the ap-

proach taken by the panel today. It describes them as

holding that a Fourth or Fifth Amendment claim never

accrues until and unless the conviction is vacated. Those

courts hold only that such a claim sometimes doesn’t accrue

until then, for example if there is no other evidence to

support the conviction besides evidence claimed to

have been obtained illegally. Soin Harvey the court went on

to satisfy itself that the evidence alleged to have been

illegally seized was essential to Harvey's conviction. /d.

at 1015-16.

The panel is right that there are two groups of cases. But

they are consistent. One holds that a Fourth or Fifth

Amendment claim accrues at the time of arrest, assuming

the conviction does not depend on the evidence alleged to

No. 04-3949 23

have been illegally seized. The other holds that the

claim does not accrue then if the conviction does depend

on that evidence.

I count 12 cases to 0 against the panel’s approach, with

the other three cases (Montgomery, Simmons, and Datz)

noncommittal but consistent with the 12. So one-sided a

score should give us pause. If there is a compelling practical

reason for flouting conventional statute of limitations

principles, forging a lonely path, and creating more work for

the Supreme Court, which now faces an intercircuit conflict

on a recurrent issue, the panel has not explained what it

might be.

24 No. 04-3949

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—3-8-06

(;) FILED

: FEB 28 2006

No. 05-779 SUPHEME COURT Rt

|_SUPREME COURT, U.S.

In the

Supreme Court of the United States

Peter Verniero, Ronald Susswein, John Fahy,

George Rover, J.W. Pennypacker, and Sean Reilly,

Petitioners,

V.

Emory E. Gibson, Jr.,

Respondent

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Third Circuit

PETITIONERS’ REPLY TO BRIEF IN OPPOSITION

ZULIMA V. FARBER

Attorney General of New Jersey

PATRICK DEALMEIDA

Assistant Attorney General

LARRY R. ETZWEILER*

Senior Deputy Attorney General

R.J. Hughes Justice Complex

25 Market Street

P.O. Box 112

Trenton, New Jersey 08625

(609) 633-7786

* Counsel of Record

i

TABLE OF CONTENTS

REPLY TO RESPONDENT’S BRIEF IN

OPPOSITION

A.

CONCLUSION

The Issue of the Appropriate Remedy

for Selective Enforcement Was

Litigated Below and Is Properly

Beton ee i ieee sc eee

Whether Delayed Accrual Applies to

Claims That Are Not Cognizable in

Habeas Corpus Is Fairly Included in

the First Question Presented and Is

Properly Before the Court ...........

The Circuit Split Is Substantial and

Weavers BG Gas i ws cee ee Sa ee

Policy Considerations Advanced by

Respondent Do Not Diminish the

Neood for Review 6 vk cs cic wcccesscn .

Oo :4@ 0 a0 2-2-6 6.-26.0 628 eo 2G eee eee es ee 8

il

TABLE OF AUTHORITIES

CASES CITED

Page

Anderson v. Franklin County,

PS2 FS FESS Ce Ga Se + bhi Reco vb ra ceca ewes $

Beck v. City of Muskogee Police Dep't,

193 F5G S55 CIO Gi Cor, TSF) a cee eee eee 6

Cope v: Anderson, 331 U.S. 461 (1947) .............5. y

Harris Trust & Savings Bank v. Salomon

Smith Barney, Inc., 530 U.S. 238 (2000) .............. 4

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

Hughes v. Lott, 350 F.3d 1157 (11th Cir. 2003) ......... 6

lenco v. Angarone, 429 F.3d 680 (7th Cir. 2005) ...... 5,9

Ienco v. City of Chicago, 286 F.3d 994

CFU Ge WED 5 55S Cape Shc oe ciiebaseaiceesibees 5

Nelson v. Campbell, 541 U.S. 637 (2004) .............. 7

Nieves v. McSweeney, 241 F.3d 46 (1st Cir. 2001) ....... 7

Rawlings v. Ray, 312 U.S. 96 (1941)... 2.20... ee eee ee. 7

Spencer v. Kemna, 523 U.S. 1 (1998) ............... 4,5

State v. Kennedy, 247 N.J. Super. 21, 588 A.2d 834

CD, EI: WO o's AK a 00 oo Aha re whoa eaeee aes 3

State v. Segars, 172 N.J. 481, 799 A.2d 541 (2002) .... 2,3

]

REPLY TO RESPONDENT?’S BRIEF IN OPPOSITION

A. The Issue of the Appropriate Remedy for Selective

Enforcement Was Litigated Below and Is Properly

Before the Court.

Respondent, in his opposing brief in No. 05-779, contends

that “the issue of what is the appropriate remedy for a selective

enforcement claim . . . was not argued in the lower courts.”

Brief in Opp., p. 17. This contention is baseless because the

appropriate remedy for selective enforcement is an

indispensable element of the application of the delayed-accrual

rule of Heck v. Humphrey, 512 U.S. 477 (1994), to a § 1983

claim of selective enforcement, and this issue was argued and

litigated from the very inception of this case. To the extent the

argument over remedy may have been abbreviated, the

abbreviation occurred because, in the district court, respondent

agreed with petitioners that the appropriate remedy is

suppression. Not until his appeal did respondent change his

position and argue that dismissal of the charges, rather than

suppression, would have been appropriate.

In the district court, in supporting their contention that

Heck did not delay the accrual of respondent’s selective-

enforcement claim, petitioners argued that respcndent’s § 1983

claim alleging selective enforcement, if successful, “wouid

imply only the illegality of the arrest and search and seizure and

the consequent taint of seized evidence intended for use in the

criminal trial.” Brief in Support of Defendants’ Motion to

Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6), dated April 16,

2003, filed July 15, 2003,' pp. 10-11. Respondent disagreed

with petitioners’ construction of Heck but acknowledged that

his “selective enforcement claims would have required

suppression of evidence.” Plaintiff's Brief and Appendix in

' At this time in 2003, the motion practice of the United States

District Court for the District of New Jersey required parties to exchange

opposing motion papers and then to file all papers simultaneously. Thus, the

signature date appearing upon papers often preceded the filing date.

2

Opposition to Motion to Dismiss, dated June 20, 2003, filed

July 15, 2003, p. 25. Respondent discussed, quoted from, and

relied upon state-court caselaw to support “the appropriateness

of the suppression remedy in profiling claims.” Jbid. The

district court agreed with the parties that the claim of selective

enforcement, if successful, would have warranted only the

suppression of the seized evidence. (Petition App., 65a-66a).

In the circuit court, however, respondent contended that

“the remedy for selective enforcement or selective prosecution

is dismissal of the criminal charges.” Brief of Appellant Emory

E. Gibson, Jr., filed June 14, 2004, p. 19 (emphasis in the

original). Respondent cited to and quoted from caselaw in

support of this contention. Jd. at 18-20. Petitioners disagreed

and argued that the district court was correct. Brief on Behalf

of Appellees Peter Verniero, Ronald Susswein, John Fahy,

George Rover, J.W. Pennypacker, and Sean Reilly, filed

September 13, 2004, pp. 26, 31-32.” Although the court below

accepted respondent’s position, respondent errs to contend that

it did so without argument.

Respondent contends that “the New Jersey courts were

clear that the remedy is dismissal of the charges.” Brief in

Opp., p. 14. On the contrary, the New Jersey courts are clear

that “[o]nce it has been established that selective enforcement

has occurred” the fruits thereof “will be suppressed.” State v.

? Respondent asserts that “[iJn the court of appeals, petitioners

argued that the selective enforcement claim was limited to the stop of the car

(and not to the detention, search and arrest of plaintiff).” Brief in Opp., p.

16. To the contrary, petitioners argued that “the only charge that would

have been subject to dismissal if a court had found that the Trooper

Defendants selectively enforced the traffic laws would have been any motor-

vehicle related charges which had been issued to [Gibson],” Briefon Behalf

of Appellees Peter Verniero, Ronald Susswein, John Fahy, George Rover,

J.W. Pennypacker, and Sean Reilly, filed September 13, 2004, p. 31, but

agreed that suppression may have occurred on the drug charges.

3

Segars, 172 N.J. 481, 492-93, 799 A.2d 541, 548-49 (2002).

Suppression would have been the remedy at respondent’s retrial

if selective enforcement had been established and if the State

had chosen to re-try the matter. Dismissal in respondent’s case

occurred because “‘in the interests of justice” the State forewent

the opportunity to “litigat[e] the issue of selective enforcement”

and moved to “dismiss the indictment[] with prejudice.”

Petition App., 110a; 11 1a-112a.

Respondent argues that “‘no clarification is needed” on the

“reach of footnote 7 of Heck” as applied to a claim of selective

enforcement because “no lower federal court has ruled contrary

to the decision below.” Brief in Opp., pp. 14-15. Clarification

is needed because lower federal courts are unanimous that

Heck’s footnote seven pertains not only to Fourth Amendment

claims of unlawful seizure but also to similar claims that

would, if successful, result in the suppression of evidence at the

criminal trial rather than outright dismissal of the criminal

charges. Petition, pp. 9-10. And federal and state courts have

ruled that the remedy for selective enforcement is suppression,

rather than dismissal. Petition, pp. 21-22. Clarification is

needed on the reach of footnote seven of Heck as applied not

only to Fourth Amendment claims but also to claims of

selective enforcement.

Respondent argues that “the issue of what is the

appropriate remedy for a selective enforcement claim should be

decided in a case that directly presents that issue.” Brief in

Opp., p. 12. Respondent’s view that this case does not

“directly” present the issue is tantamount to his claim that

Heck’s footnote seven requires a fact-based inquiry. Because

the petition properly raises the propriety of that claim, the

> Respondent appears to argue that State v. Kennedy, 247 N.J.

Super. 21, 588 A.2d 834 (App. Div. 1991), supports his claim that state law

requires dismissal. Brief in Opp., p. 16. In Kennedy, the court held the

remedy to be suppression, rather than dismissal. 247 N.J. Super. at 30, 588

A.2d at 838-39.

4

second question presented fairly includes and directly presents

the subsidiary issue of remedy.

B. Whether Delayed Accrual Applies to Claims That

Are Not Cognizable in Habeas Corpus Is Fairly

Included in the First Question Presented and Is

Properly Before the Court.

Respondent argues that petitioners have “waived” the

argument that delayed accrual does not apply to claims that are

not cognizable in habeas corpus because it “was not made in

the lower courts.” Brief in Opp., p. 12. The dissenting judge

in the court below advanced this argument to support his

opinion that the Fourth Amendment claims were not subject to

delayed accrual. Petition App., 16a-17a. No judge in the court

below suggested that this argument was waived. This argument

is fairly included in the first question presented in that the

argument, if valid, would answer this question in the negative,

whereas a positive answer to the first question presented must

reject this argument.

The first question presented was vigorously litigated in the

district and circuit courts, and no claim of “waiver” has been or

could be made as to this question. “Once a federal claim is

properly presented, a party can make any argument in support

of that claim; parties are not limited to the precise arguments

they made below.” Harris Trust & Savings Bank v. Salomon

Smith Barney, Inc., 530 U.S. 238, 245 n. 2 (2000). This

principle is particularly applicable when the circuit court

“understood the tenor of the argument.” /bid.

Respondent complains that “[flor the first time in this

litigation, petitioners argue that the concurring and dissenting

opinions in Spencer [v. Kemna, 523 U.S. 1 (1998)] provide

support for their interpretation of Heck.” Brief in Opp., p. 13.

Although Spencer arguably supports petitioners’ interpretation

of Heck, petitioners did not cite Spencer for that reason.

Petitioners cited Spencer to support their argument that the first

question presented merits review. Petition, p. 17. The

5

concurring and dissenting opinions in Spencer, which suggest

that Heck does not apply to claims not cognizable in habeas

corpus, have caused circuit courts to question whether Heck

applies to these claims. /bid. The first question presented

provides this Court with the opportunity to settle the matter.

C. The Circuit Split Is Substantial and Warrants

Review.

The Seventh Circuit’s decision in Jenco v. Angarone, 429

F.3d 680 (2005), did not “firmly resolve” that Circuit’s view of

Heck’s footnote seven. Brief in Opp., p. 8. Rather, Jenco

demonstrates the Seventh Circuit’s confusion and vacillation.

In an earlier appeal in the same case, the court stated that

Ienco’s Fourth Amendment claims were time-barred because

they “expired two years after his arrest.” Jenco v. City of

Chicago, 286 F.3d 994, 1000-01 (7th Cir. 2002). In Jenco v.

Angarone, the court referred to its earlier ruling as erroneous

“dicta.” 429 F.3d at 684. The reference to “dicta” was itself

dicta because the court refused to allow Ienco to resurrect his

Fourth Amendment claims, having concluded that Ienco

abandoned them. Jd. at 684-85. The conflicting Jenco

decisions highlight that circuit’s confusion about Heck’s

footnote seven.

The Eighth Circuit’s decision in Anderson v. Franklin

County, 192 F.3d 1125 (1999), did not follow what respondent

refers to as the “majority rule.” Brief in Opp., p. 8. The

plaintiff's Fourth Amendment claims did not include unlawful

search, id. at 1128, and the decision made no fact-based

analysis of what, if anything, was uncovered by a search. The

plaintiffs Fourth Amendment claims of false arrest and

‘ In response to lenco’s assertion that he did not voluntarily

abandon these claims but instead relied upon extant Seventh Circuit

precedent holding them to be time-barred, the court did not “reject [the}

position . . . that there [was] a lack of clarity concerning the accruai.” Brief

in Opp., p. 8 n. 1. Rather, the court responded that !enco could have

anticipated this construction of Heck. 429 F.3d at 684.

6

imprisonment. and excessive force were advanced with his

contention that “he was coerced into pleading guilty.” Jd. at

1131. The court appears to have affirmed the district court’s

application of the Heck delayed-accrual rule to dismiss these

claims because this contention would necessarily have implied

the invalidity of the plaintiff's conviction. Jbid. In any event,

there was no analysis of tainted evidence and no adoption of the

“majority rule.”

That the Tenth Circuit in Beck v. City of Muskogee Police

Dep't, 195 F.3d 553 (1999), noted that :t was not “faced with

the rare situation . . . where all evidence was obtained as a

result of an illegal arrest” does not mean that it would in this

situation abandon its construction of footnote seven. The court

reaffirmed its view that “nothing in Heck changes the general

rule that causes of action relating to an allegedly illegal arrest

arise at the time of the arrest,” 195 F.3d at 558, and its

“disagree[ment] with . . . cases” that hold that delayed accrual

“depends on whether evidence obtained as a product of the

arrest is used at trial.” Jd. at 559 n. 4. The Beck court’s

agreement that accrual for a claim of illegal arrest is sometimes

delayed hinged upon special circumstances such as those

described in Heck’s footnote six, 195 F.3d at 558-59, e.g., those

in which a plaintiff convicted of resisting a lawful arrest seeks

to bring a § 1983 cause of action claiming that the arrest was

unlawful. Heck, 512 U.S. at 487 n. 6.

The Eleventh Circuit’s decision in Hughes v. Lott, 350

F.3d 1157 (2003), did not adopt what respondent refers to as

“the majority approach.” Brief in Opp., p. 9. Rather, the court

held that “Heck does not generally bar [Fourth Amendment]

claims.” 350 F.3d at 1160 (emphasis added). Like the Tenth

Circuit in Beck, the Hughes court clarified its use of the adverb

“generally” by reference to Heck’s footnote six. 350 F.3d at

1160 n. 2. In reinstating the search and seizure claim and

holding that it was “impossible” to determine from the existing

record whether the delayed-accrual rule should apply, 350 F.3d

at 1161, the court neither ordered nor suggested the fact-based

inquiry that the majority opinion below endorses.

7

Nor did the First Circuit so suggest in Nieves v.

McSweeney, 241 F.3d 46, 52 n. 4 (2001), when it referred to

“rare and exotic circumstances in which a § 1983 claim based

on a warrantless arrest will not accrue at the time of the arrest.”

The Nieves court is at odds with the majority opinion below.

Even if, as respondent argues, “the trend in the Circuits is

... in [the] direction” of the majority opinion below, Brief in

Opp., p. 1, the matter warrants review because no Circuit

opinion has taken into account this Court’s expansive

interpretation of Heck’s footnote seven in Nelson v. Campbell,

541 U.S. 637, 647 (2004). See Petition, p. 15. Respondent

argues that Ne/son is irrelevant because it did not deal with

delayed accrual. Brief in Opp., p. 13 n. 4. But the issue before

the Nelson court - the distinction between habeas claims and §

1983 claims - informed the Heck opinion, see 512 U.S. at 480-

81, and this Court’s construction of footnote seven of Heck in

its Nelson decision in turn informed this Court’s resolution of

Nelson.

D. Policy Considerations Advanced by Respondent

Do Not Diminish the Need for Review.

That “different approaches to civil rights claims in state

and federal court are often the result of federalism principles

and the fact that courts differ in access or procedures,” Brief in

Opp., p. 12, is not a reason to tolerate the conflict between

federal and state courts in New Jersey about the proper

construction of Heck’s footnote seven. The question of when

a federal claim for relief accrues is a question of federal law.

Rawlings v. Ray, 312 U.S. 96 (1941); Cape v. Anderson, 331

U.S. 461 (1947). The answer to that question should be the

same in state and federal courts. Plaintiffs should not be given

the incentive to forum-shop for the court, federal or state, that

will allow their claims to proceed.

Respondent endorses toleration of the uncertainty about

accrual effected by the majority opinion below because “Heck

itself creates deferral rules for statutes of limitations that

8

inevitably will create some uncertainty.” Brief in Opp., p. 12.

The uncertainty is not “inevitable” and arises from the majority

opinion’s erroneous construction of Heck’s footnote seven.

Respondent asserts that “there will be no civil rights action

until (and unless) the state court criminal proceedings are

resolved in the plaintiff's favor.” Brief in Opp., p. 13. The

uncertainty about the date of accrual unwisely encourages

plaintiffs to file early, prophylactic complaints to avoid

expiration of the statute of limitations. Regardless of how -

Heck’s footnote seven is construed, many of those complaints

will present Fourth Amendment causes of action that have

accrued although the state court criminal proceedings have not

been resolved in plaintiff's favor.

Respondent asserts that under petitioners’ approach “there

would be far greater intrusion into state criminal proceedings

than is permitted under the ruling” below. Brief in Opp., p. 1;

see also id. at 13-14. The need to make a fact-based analysis

of the criminal trial to determine the applicability of doctrines

such as independent source, inevitable discovery, and

especially harmless error - with an evaluation of the strength of

the prosecutor’s case - imposes a layer of intrusion above and

beyond that imposed by the civil rights action itself.

Respondent states that “[p]etitioners appear to reject the

approach taken by some federal courts in staying civil

proceedings pending resolution of the criminal charges.” Brief

in Opp., p. 14. Petitioners endorse stays in appropriate cases

but understand that stays must be premised upon abstention

doctrines or bases other than Heck’s delayed-accrual rule.

Doctrines other than delayed accrual appropriately address

federal interference in pending criminal prosecutions. E.g.,

Heck, 512 U.S. at 487 n. 8.

Respondent argues that “there is no indication that the fact-

based approach has caused any of the problems that the

petitioners’ [sic] hypothesize.” Brief in Opp., p. 14. Indication

of problems in construing Heck’s footnote seven appears in

9

circuit courts’ c »nflicting opinions and their efforts to grapple

with its meani: 3. Indication of uncertainty in its application

appears in the caselaw, including Jenco v. Angarone, 429 F.3d

680, 684 (7th Cir. 2005), upon which respondent relies. See

discussion, supra, p. 5. Indication of problems is evident in

caselaw requiring an automatic stay pending resolution of

criminal charges in circuits that have adopted the approach of

the majority opinion below. Petition, pp. 13-14.

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted on both of the questions presented.

Respectfully submitted,

ZULIMA V. FARBER

Attorney General of New Jersey

Patrick DeAlmeida

Assistant Attorney General

Larry R. Etzweiler*

Senior Deputy Attorney General

*Counsel of Record

R.J. Hughes Justice Complex

P.O. Box 112

Trenton, New Jersey 08625

(609) 633-7786

Dated: February 27, 2006