Gibson v. NJ Dept Law & Pub

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit

6-14-2005

Gibson v. NJ Dept Law & Pub
Precedential or Non-Precedential: Precedential

Docket No. 04-1847

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 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 14, 2005 )

David Rudovsky (Argued)
Kairys, Rudovsky, Epstein & Messing
924 Cherry Street
Suite 500
Philadelphia, PA 19107

William H. Buckman
714 East Main Street
Suite 1B
Moorestown, NJ 08057

Counsel for Appellant

James H. Martin (Argued)
Peter C. Harvey, Attorney General of New Jersey
Patrick DeAlmeida, Assistant Attorney General - Of Counsel
Robert P. Shane, Deputy Attorney General
Richard J. Hughes Justice Complex
P.O. Box 112
Trenton, NJ 08625

Counsel for Appellees Verniero, Susswein,
Fahy, Rover, Pennypacker and Reilly

2
John F. Hipp
Spadoro & Hilson
90 Woodbridge Center Drive
Suite 610
Woodbridge, NJ 07095

Counsel for Appellee New Jersey Turnpike
___________

OPINION 1
___________

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

1
This Opinion represents the Opinion of the Court on all
issues except the discussion of the Fourth Amendment claims in
Part III.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”).

3
evidence suggested that his initial stop was tainted by racial
animus. He subsequently brought this action against the New
Jersey State Police (“NJSP”) Superintendent;2 J.W.
Pennypacker and Sean Reilly,3 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;4 the New
Jersey Turnpike Authority; the Treasurer of 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.

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.”
4
We refer to Peter Verniero, Ronald Susswein, John Fahy,
and George Rover collectively as the “Attorney General
defendants.”

4
 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.

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

5
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 conviction and imprisonment. In Count
Two, he sought injunctive relief from the NJSP

6
Superintendent,5 and in Count Three, he alleged that the
defendants “conspired to violate Plaintiff’s 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.” (Id. 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.

5
Gibson’s counsel stated at oral argument that they are no
longer pursuing this claim.

7
 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 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.

II. 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).

III. ANALYSIS

The nature of Gibson’s multiple claims in Count One
is somewhat difficult to ascertain so we begin by examining
the Complaint.6 Count One was brought under 42 U.S.C. §

6
Count One of Gibson’s Complaint states in its entirety:

81. Defendants, under the color of state law, deprived

8
Plaintiff 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
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 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

9
1983 which provides a cause of action against a person who,

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 State law.
83. But for the Defendants’ unlawful 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 Plaintiff’s 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.
85. As a proximate result of the aforementioned acts, Plaintiff
has been damaged and has suffered severe emotional
injuries, including mental distress and anguish.

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

10
acting under color of state law, deprives another of a
constitutional or federal right. Thus, to state a claim under §
1983, Gibson must indicate: (1) of what constitutional or
federal right he 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. Id. 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 unconstitutional conviction and imprisonment7 appear to

7
At the outset, we note that Gibson was not pursuing a
malicious prosecution claim. (Appellant App. at A-22). It
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

11
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 in
violation of the Fourth Amendment, (B) when the Troopers
racially profiled Gibson and thereby subjected him to

allegedly unconstitutional conviction or imprisonment, or for
other harm caused by actions whose unlawfulness would render
a conviction or sentence invalid, a § 1983 plaintiff must prove
that the conviction or sentence has been reversed on direct
appeal, expunged by executive order, declared invalid by a state
tribunal authorized to make such determination, or called into
question by a federal court's issuance of a writ of habeas corpus,
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.

12
discriminatory enforcement of the law in violation of the
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 the New Jersey
Turnpike Authority (“NJTA”) failed to properly train and
discipline the Troopers in question. Id. 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.8 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

8
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. IV.

13
the state statute 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).

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.” Id.
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. Id. at 489.
In the case before us, the arrest, trial 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 from being
untimely because they fall under the Heck delayed accrual
rule, and did not accrue until Gibson’s conviction was set

14
aside in 2002.

In Heck v. Humphrey, Heck brought a § 1983 suit
while his criminal appeal was pending. Id. at 479. Heck
alleged numerous constitutional violations in the conduct of
his trial, and requested compensatory and punitive money
damages, but no injunctive relief. Id. 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. Id. 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 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

15
 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 plaintiff's 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
breathalyser test. Id. 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. Id. 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. Id. at 123. After her
convictions were overturned, she brought an action against
the arresting officer in the United States District Court for

16
false arrest and false imprisonment. Id. The District Court
ruled that her claims accrued at her arrest and were time-
barred by the statute of limitations. Id.

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.” Id. 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 judgment, it should be allowed to proceed. Id.
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

17
 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 (5th 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
9
claims including claims that Troopers Pennypacker and
Reilly violated his rights by detaining and arresting him
without probable cause and falsely imprisoning him. We

9
Gibson claims that the Troopers violated the Fourth
Amendment by:
– 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.)

18
view these claims as claims of false arrest or imprisonment.
See 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).10

10
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

19
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 (11th Cir. 2003); Harvey v. Waldron, 210 F.3d 1008, 1015
(9th Cir. 2000); Covington v. City of New York, 171 F.3d 117,
119 (2d Cir. 1999) (supporting a fact-based inquiry); Hudson v.
Hughes, 98 F.3d 868, 872 (5th 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, 195 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

20
 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
seeking injunctive relief in a § 1983 action. Preiser “held that
habeas corpus is the exclusive remedy for a state prisoner who

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 a
result 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.

21
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. Id. 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, id. 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.” Id. 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

22
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 Illinois 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.11

11
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.

23
 Footnote six in the Heck opinion demonstrates a
narrow exception to the general statement in footnote seven
that a 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 12

Powell, 428 U.S. 465, 480-81 (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.” Id. 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.

12
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 plaintiff's 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 lawful 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);

24
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. Id. at 487 n.6. This narrow exception
is not present in the case before us.

For the reasons stated above, I would affirm the
dismissal of all claims seeking damages for violations of
Gibson’s Fourth Amendment rights as these claims are time-
barred.13

4 C. Torcia, Wharton's Criminal Law § 593, p. 307 (14th
ed. 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 law
concerning res judicata, see n.2, supra, the § 1983 action
will not lie.

Heck, 512 U.S. at 486-87 n.6.
13
I am 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

25
 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 violation of the Equal Protection Clause of the
Fourteenth Amendment.14 This requires a wholly different

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.
Id. As long as the officers had probable cause for believing that
a traffic violation occurred, the stop was reasonable. Id. 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.
14
Section One of the Fourteenth Amendment states in
relevant part:

No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the

26
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 motivation to stop the motorist.
However, the Court in Whren expressly limited its analysis to
the Fourth Amendment, and acknowledged that “the
Constitution prohibits selective 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.” Id.

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’

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.

27
equal protection claims under the Fourteenth Amendment
require a wholly separate analysis from their claims under the
Fourth Amendment.” (internal citations omitted.)

Whren 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.15
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.

15
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.

28
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); 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 IV 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

29
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.” Id. 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. Id. at 413. The object of such
a claim is to remove the barrier so that the plaintiff can pursue
the separate claim for relief. Id. 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
“ended poorly, or could not have commenced, or could have
produced a remedy subsequently unobtainable.” Id. 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

30
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. Holtz, 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 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.”
Id. at 87. The prosecutor’s duty to disclose extends beyond

31
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).

Strickler v. Greene, 527 U.S. 263, 281 (1999). This “special
status” underpins the Brady rule and explains why the duty of

32
disclosure rests squarely on the shoulders of the prosecutor.
Id.

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 of the
government’s obligation to ensure fair trials.” Id. 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 (5th 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

33
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 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,” id. 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

34
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 an
accused if only by informing the prosecutor that the evidence
exists.” Smith v. Holtz, 210 F.3d 186, 197 n.14 (3d Cir.
2000).16 Because such a right was not clearly established in

16
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).

35
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 exculpatory 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.

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.

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

36
 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. Imbler 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 obstruct those convicted as a result of the
discriminatory enforcement from obtaining relief.

Gibson specifically alleges that, although the Attorney
General defendants published the Interim Report of the State

37
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 Smith v. 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

38
Rouge, 119 F.3d 1259, 1262-63 (6th Cir.1997)) (emphasis
added). Gibson alleged no facts that would establish that the
actions of the Attorney General defendants in publishing the
1999 Interim Report were directed at denying relief to people
like Gibson.17 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

17
In his Reply Brief, Gibson points to only one allegation
in his Complaint (¶ 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.

39
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 the dismissal
of the claims against the NJTA.

IV. 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.

40
FUENTES, Circuit Judge, with whom BARRY, Circuit
Judge, joins, writes the opinion of the Court with respect to
Part III.A, from which Judge Van Antwerpen dissents. Judge
Van Antwerpen writes the opinion of the Court with respect
to Parts I, II, III.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

.

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

41
 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.18 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, 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.

18
Hereafter referred to as Gibson’s car.

42
 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. Id. at 489-
90. The 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

43
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 lawful 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,” id. 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

44
‘injury’ of being convicted and imprisoned.” Id. (emphasis in
original). The Court emphasized however, that once a
conviction was overturned, being convicted and imprisoned
would qualify as an actionable § 1983 injury. Id.

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 (1st Cir. 2001)
(holding that claims for false arrest and imprisonment under
§ 1983 accrue at the time of the arrest);19 Copus v. City of
Edgerton, 151 F.3d 646, 648 (7th Cir. 1998) (Fourth
Amendment claims for unlawful searches or arrests can go

19
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.

45
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).

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);

46
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 (5th 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 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

47
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. Footnote seven of Heck
clearly states that an action may lie with respect to an
unreasonable search, not that it shall or will lie. 512 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.
Rev. 1085, 1106-07 (2002). Moreover, the policies cited in
the Heck decision itself, which provide the proper context

48
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 plaintiff’s 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, id. 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

49
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
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. Id. 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
(5th 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.

50
Id. at 126 n.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 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

51
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 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

52
determination as to whether a plaintiff’s § 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 e.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.

In this case, Gibson was arrested for drug-related
offenses after his car was stopped and searched in October
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, “[f]alse arrest or false
imprisonment is the constraint of the person without legal
justification.” Fleming v. United Parcel Serv., Inc., 604 A.2d
657, 680 (N.J. 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 id. If a judgment for

53
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.

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. 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

54
would necessarily impugn any conviction resulting from the
use of that evidence.”) (emphasis in original).20 Gibson is not
seeking damages for physical injury, injury to reputation or
seizure of property resulting from the improper 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

20
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 concern, 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.

55
two-year statute of limitations.21 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 that he did not have sufficient
evidence to support a claim of racial profiling. Sufficient
evidence came when the New Jersey Attorney General proposed
dismissal 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.

56