When the heck does this claim accrue? Heck v. Humphrey’s footnote seven and (sec) 1983 damages suits for illegal search and seizure
Buford, John Stanfield
Police illegally search your house and uncover evidence against you. Perhaps the trial judge suppresses this evidence; perhaps the judge does not and you must seek appellate review. Regardless of the path, ultimately you successfully defend yourself against the criminal charges. You seek damages under 42 U.S.C. (sec) 1983(1) from the police for their unconstitutional conduct. The applicable Supreme Court case law says that no (sec) 1983 cause of action lies if success on that claim “would necessarily imply the invalidity of [the plaintiff’s] conviction or sentence.”2 As a counterexample, however, the Court discusses your specific complaint, illegal search, in a footnote:
Is your claim timely? It depends on which U.S. Circuit Court of Appeals governs your claim: some courts say that all illegal search claims accrue at the time of the search because no illegal search claim, by definition, “necessarily implies” the invalidity of the conviction;4 others say that the district court must determine whether success on the illegal search claim would imply the invalidity of the conviction.5 Of course, by starting the clock sooner, the statute of limitations expires sooner in the first group of courts, making otherwise justifiable (sec) 1983 damages unavailable to many of those plaintiffs.6
Because searches in violation of the Fourth Amendment invariably occur in the course of criminal investigations, many victims will face prosecution as a result of the illegal search. One issue concurrently facing victims contemplating civil redress is the statute of limitations. State personal injury laws provide the relevant statutes of limitations for (sec) 1983 claims.21 The question of when these claims accrue becomes important because these limitations periods generally offer a short window for filing a civil claims22 – a window in which a potential (sec) 1983 plaintiff may be incarcerated.
Part II of this Note emphasizes the importance of this issue by outlining the significant remedial role of damages in the context of Fourth Amendment violations, comparing and contrasting the damages remedy with the exclusionary rule.29 Part III of this Note analyzes the Heck opinion to discern the principles courts should use in interpreting footnote seven.30 Part IV of this Note examines decisions from both sides of the circuit split. Part IV then concludes that the courts requiring case-by-case determinations of accrual more directly conform to the Heck opinion.31
II. The Necessity of a Damages Remedy for Fourth Amendment Violations
There is no shortage of crticism of this evidentiary rule, which Chief Justice Burger once called “conceptually sterile and preactically ineffective in accomplishing is stated objective.”39 The most fervent critics of the exclusionary rule, such as Professor Akhil AMar, seek to completely replace the rule with civil damages remedy40 or perhaps administratively-awarded damages.41 Professor Amar argues that the Framers intended civil damages, rather than the exclusion of evidence, to be the remedy for a Fourth Amendment violation.42 Because officers suffer little or no personal loss for an adverse ruling at a suppression hearing, the deterrent effects of exclusion may be negligible at best.43 Exclusion is an all-or-nothing approach that disproportionately rewards the guiltiest defendants, those most likely to be convicted if the court admits the evidence, whereas damages are flexible.44 Furthermore, exclusion provides no remedy for the innocent victim of an illegal search that uncovers no evidence at all and therefore produces nothing for a court to exclude.
III. The Accrual ofDamages Claims with Conviction Outstanding:
Hack v. Humphrey
The district court dismissed the suit without prejudice on the grounds that the claim directly implicated the legality of Heck’s conviction and confinement.60 While his civil appeal was pending, Heck’s direct challenges to his conviction failed: The Indiana Supreme Court upheld his conviction, and a federal district court denied his first petition for a writ of habeas corpus due to unexhausted claims.61 The district court then denied a second habeas petition, and the Seventh Circuit affirmed.62
B. Analysis Under Equitable Tolling: The Seventh Circuit
The more difficult question before the court was whether to stay or dismiss the civil action.67 A dismissal would leave Heck vulnerable to a statute of limitations defense if he refiled after completion of his sentence.68 The court noted decisions of several other circuits staying similar suits rather than dismissing them, but ultimately disagreed with the conclusions reached by those courts.69 The Seventh Circuit believed that the other courts gave “inadequate weight to the policy of the statute of limitations, which is to bar stale suits.”70 The court suggested that plaintiffs later attempting to overcome a statute of limitations defense could seek equitable tolling whereby “a person is not required to sue within the statutory period if he cannot in the circumstances reasonably be expected to do so.”71 The court’s rationale for preferring equitable tolling to a stay was that[r]ather than giving the plaintiff an automatic extension of indefinite duration, no matter how much his carelessness or sloth may have contributed to the delay in the prosecution of his claim, the doctrine of equitable tolling gives the plaintiff just so much extra time as he needs, despite all due diligence on his part, to file his claim …. There must be diligence, and the diligence must continue up to the time of suit – you cannot be diligent for a year, and then wait another year to sue.72
C Analysis Under Common-Law Principles: The Majority Opinion[I]n 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 (sec) 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tna_ma! authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus. 84
D. Analysis Under Praise v. Rodriguez: Justice Souter’s Concurrence
Justice Souter preferred to analyze the case under Preiser, which subordinated the breadth of (sec) 1983 to the specificity of the federal habeas corpus statute.94 Although Preiser considered injunctive relief, Justice Souter saw no reason why Preiser’s holding should not extend to a damages claim for unlawful conviction or confinement.95 Under his Preiser analysis, Justice Souter concluded that “the statutory scheme must be read as precluding such [collateral] attacks” via 1983.(96)
IV. Footnote Seven and (sec) 1983 Damages for Illegal Search and Seizure
The Court’s ruling in Heck denied the accrual of a (sec) 1983 claim for damages that would imply the invalidity of the plaintiff’s conviction or sentence.101 In footnote seven of its opinion, the Court provided an example of a claim that might not imply the invalidity of the underlying conviction or sentence and that, consequently, would not require favorable termination:
For example, a suit for damages attributable to an allegedly unreasonable search may lit even if the challenged search produced evidence that was introduced in a state criminal trial resulting in the (sec) 1983 plaintiff’s stilloutstanding conviction. Because of doctrines like independent source and inevitable discovery, and especially harmless error, such a (sec) 1983 action, even if successful, would not necessarily imply that the plaintiffs conviction was unlawful. In order to recover compensatory damages, however, the (sec) 1983 plaintiff must prove not only that the search was unlawful, but that it caused him actual, compensable injury, which, we hold today, does not encompass the “injury” of being convicted and imprisoned (until his conviction has been overturned).102
A. Rome and Avignon: The Footnote Seven Schism118
In order to analyze these competing approaches appropriately, one must first appreciate the following principles that the Heck opinion advances: consistency, finality, and federalism. The majority explicitly relied on the first two principles as justification for the favorable termination requirement, having “long expressed similar concerns for finality and consistency and [having] generally declined to expand opportunities for collateral attack.”121 The Supreme Court’s overarching concern is collateral attack of criminal convictions via civil action.”122
B. Courts Permitting Accrual of Damages Suits for Illegal Search and Seizure
1. Seventh Circuit: Rigid Reading of “Necessarily”
The Seventh Circuit’s prolific body of footnote seven appellate cases staunchly supports the general exception interpretation of footnote seven even beyond the search-and-seizure context. 136 Copus V. City of Edgerton137 is an illustrative search and seizure case.138 In Copus, the plaintiff, after a conviction based on federal weapons charges, sued the local police officers who located the weapons in a search while responding to a domestic disturbance at the plaintiff’s house.139 The court admitted the ambiguity of footnote seven:
The court chose the latter reading.141 The court then extracted hypothetical situations from the facts in the record to justify allowing Copus’s suit to proceed: the police may have discovered the weapons in the later search to which Copus consented, or in the search that Copus’s wife invited police to undertake, or the government also may have convicted Copus based on evidence seized legally in the days after the illegal search.142 According to the court, nothing beyond this speculation was necessary: “For our purposes, it is enough that these possibilities exist, for they tell us what we need to know under Heck – that we cannot say with certainty that success on Copus'[s] (sec) 1983 claim ‘necessarily’ would impugn the validity of his conviction.”143
2 Tenth Circuit. Footnote Seven Merely Limits Damages
We do not agree that this statement undercuts the Court’s earlier explanation in this same footnote that success on a claim for an unreasonable search would not ncessarily imply the unlawfullness of the conviction. We read the Court’s latter statement as only limiting the damages a plaintiff may recover in such a case – the damages cannot include those for being convicted and imprisoned, at least not until the conviction has been overturned.155
The Tenth Circuit did allow Beck’s other malicious-prosecution-style claims to proceed because they did not accrue under Heck until Beck demonstrated favorable termination.156
3. Eighth Circuit: Footnote Seven and the Fifth Amendment
In sum, the logic of the Simmons decision is identical to the Seventh Circuit’s analysis of footnote seven as applied to illegal search claims – the mere hypothetical possibility of one of the footnote seven exceptions allows for claim accrual.164 I take no issue with the Eighth Circuit’s treatment of an involuntary confession claim as analytically similar to a Fourth Amendment claim. Consequently, once a court adopts the general exception approach, extension of the scope of the exception to include (sec) 1983 claims under the Fifth Amendment is analytically consistent. To paraphrase Bugs Bunny, however, that first step in the analysis is a lulu.165
4. Ruminations on a General Exception
The general exception approach does have certain merits: First, the approach is consistent with the historical, pre-Heck understanding that commonlaw claims such as false arrest and illegal search accrue at the time of the illegal conduct.166 Second, the general exception approach may advance judicial economy – courts need only glance at the particular style of the claims at issue, and do not have to examine the record to determine whether the particular plaintiff’s claims will invalidate his conviction. Furthermore, with the limitations period beginning and ending earlier, conceivably fewer plaintiffs will be eligible to pursue these (sec) 1983 claims. However, the “race to the courthouse” that the general exception approach generates will negate much of this judicial economy.
5 Fourth Circuit Rebuttable Presumption ofa General Exception
The Fourth Circuit has not directly addressed the illegal search issue, but one analogous decision points to a modified general exception approach. In Brooks v. City of Winston-Salem,174 the Fourth Circuit examined Heck to consider the accrual of a similar claim, false arrest.175 The court did not frame its opinion in the absolute language of a general exception; however, the court [did] not read Heck as altering the general rule that a (sec) 1983 claim seeking damages for an allegedly unconstitutional warrantless arrest accrues when the plaintiff knows or should know ofthe injury -except in the limited circumstances, not present here, when a (sec) 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.176
The approach that the Brooks decision suggests lies somewhere between the competing approaches of the two groups of circuit courts. The Fourth Circuit acknowledged the possibility that some claims within the illegal search category could imply the invalidity of the underlying conviction, an idea that the Seventh Circuit rejects.180 A separate footnote in the Heck opinion acknowledged at least this much, positing the example of a false arrest claim that, although perhaps theoretically unrelated to a conviction for resisting arrest, still would practically undermine that conviction.181 Instead of requiring a showing of favorable termination or other case-by-case determination before accrual, however, the Brooks language shifts the presumption in favor of immediate accrual.182 In acknowledging that at least some Fourth Amendment claims could imply the invalidity of a conviction, the Fourth Circuit’s approach is less objectionable than the pure general exception approach. Still, because the Brooks opinion shifts the presumption in favor of immediate accrual, thereby imposing on civil defendants the burden of proving that the civil suit would collaterally attack the conviction, even this tamer general exception approach threatens the consistency, finality, and federalism values that the Heck opinion trumpets. 183
C. Courts Denying Accrual of Damages Suits for Illegal Search and Seizure
1. The Sixth Circuit: “The Seventh Circuit Misreads Heck”184
The Sixth Circuit dismissed Schilling’s action because he failed to show the invalidation of his conviction. 193
The Sixth Circuit ruled in at least one case that two plaintiffs’ (sec) 1983 suit for illegal search and seizure accrued at the time of the search and could proceed even while the plaintiffs were incarcerated.204 Because the allegedly illegally-seized evidence was never the subject of criminal charges, the court determined that the claim was distinct from Schilling and would not collaterally challenge the plaintiffs’ criminal proceedings.205 This is entirely consistent with Schilling and Cunigan, however, in that the court required each plaintiff to demonstrate that the civil claim would not overturn an actually or potentially outstanding valid conviction.
2. Second Circuit: First to Advocate Case-by-Case Determination
3. Ninth Circuit: Examining Heck’s Objectives
The Ninth Circuit examined the circuit court split over footnote seven and refused to read the footnote as creating a general exception for illegal search and seizure claims,230 thus agreeing with the interpretation of the Second and Sixth Circuits:
Such a holding will avoid the potential for inconsistent determinations on the legality of a search and seizure in the civil and criminal cases and will therefore fulfill the Heck Court’s objectives of preserving consistency and finality, and preventing “a collateral attack on [a] conviction through the vehicle of a civil suit.”231
Because the seized gaming devices constituted an essential element of the charged crime, possession of illegal gaming devices, the court determined that a successful (sec) 1983 action that had been filed while the charges were pending would have implicated the validity of the prosecution, making the civil action not cognizable under Heck.232 District courts in the Ninth Circuit have followed the Harvey approach.233
4. Fifth Circuit: Appearing to Support an Individualized Approach
The circuit court ordered the district court to stay the civil suit until the criminal proceedings concluded.241 Although the court ordered the stay on Heck grounds, the result appears identical to that in which a court grants accrual under Heck but orders a stay on abstention grounds.242 This is inconsistent with Heck – either the claim has accrued or it has not, and the burden should he with the plaintiff to demonstrate accrual.243 Rather than staying the suit, the court should have remanded for an immediate determination of the question.
5 The Case-by-Case Determination: Promoting the Principles of Heck
As the decisions from the Second, Fifth, Sixth, and Ninth Circuits demonstrate, the individualized approach is a superior interpretation of footnote seven. First, consider once again the disputed language of the footnote:
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 (sec) 1983 plaintiff’s stilloutstanding conviction Because of doctrines like independent source and inevitable discovery, and especially harmless error, such a (sec) 1983 action, even if successful, would not necessarily imply that the plaintiff’s conviction was unlawful.249
The first sentence utilizes permissive language (“may”) rather than an absolute term (“shall”). With the ambiguity of the second sentence, one can at least argue that the phrase “such a (sec) 1983 action” only describes illegal search claims that feature one of the listed doctrines, not all illegal search claims. Admittedly, an argument based solely on the text of the footnote does not point to either camp very clearly. When read in the context of the overall Heck opinion, though, the individualized approach becomes the more appropriate one.
Furthermore, the individualized approach promotes these values without unduly sacrificing a plaintiff’s ability to seek redress via (sec) 1983 for a Fourth Amendment violation. As noted previously, the general exception rule may seem more plaintiff-friendly by allowing immediate accrual of (sec) 1983 illegal search claims, but the dark consequence is that plaintiffs in these courts face expiration of the statute of limitations when the litigants more properly should focus on defending themselves against the underlying criminal charges.254 The Sixth Circuit rightfully criticized this tug-of-war on criminal defendants:
To require a defendant in a criminal proceeding to file a civil action raising any potential (sec) 1983 claims within one year of any alleged illegal searches or other allegedviolations of constitutional rights, claims which the federal court must then abstain from resolving until the disposition of the criminal proceedings, would misdirect the criminal defendant. Surely, just as a convicted prisoner must first seek relief through habeas corpus before his (sec) 1983 action can accrue, so too should the defendant in a criminal proceeding focus on his primary mode of relief- mounting a viable defense to the charges against him -before turning to a civil claim under (sec) 1983.255
The contrast is clear: The courts utilizing the individualized approach preserve the (sec) 1983 actions of plaintiffs who abide by Heck’s values.258 When a general exception court dismisses the (sec) 1983 claim of a plaintiff who pursues his criminal remedies before filing the civil claim, the court effectively punishes that plaintiff for respecting consistency, finality, and federalism.259 This result of the general exception approach is hardly desirable given the important remedial role of (sec) 1983 damages in compensating victims of Fourth Amendment violations and in regulating police conduct.260
John Stanfield Buford
* The author is indebted to Professor Ronald J. Krotoszynski, Jr., Bryan Barksdale, and Chris Fernandez for their comments and suggestions about this Note. The author also wishes to thank his fiancee, Anne Peters, and his parents, John and Betty Buford, for their love and support during this process.
Copyright Washington & Lee University, School of Law Fall 2001
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