Gibson v. Superintendent of New Jersey Department of Law & Public Safety-Division of State Police

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.

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, 114 S.Ct. 2364, 129 L.Ed.2d 383 (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

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 Superi- *447or 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.

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, 114 S.Ct. 2364.

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, 114 S.Ct. 2364. The Supreme Court directs district courts to determine in each case whether a particular § 1983 claim is deferred under Heck. Id. at 487, 114 S.Ct. 2364 (requiring district courts to “consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence”). The Court offered guidance on the question of when a § 1983 claim implies the invalidity of a conviction or a sentence, and is thus deferred, in two separate footnotes in Heck. In footnote six, the Court provided an example of when a defendant’s § 1983 action would implicate the validity of his conviction. In the example, a person is convicted and sentenced for resisting arrest, an offense ordinarily requiring proof that the defendant intentionally prevented an officer from making a 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, 114 S.Ct. 2364, 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, *448and harmless error. Id. at 487 n. 7, 114 S.Ct. 2364. The Court noted that in order for a § 1983 plaintiff to recover compensatory damages, he or she must prove both that the search was unlawful and that it caused actual compensable injury that “does not encompass the ‘injury’ of being-convicted and imprisoned.” 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 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 volun-tariness 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); 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 introduc*449tion of the evidence. See, e.g., Ballenger v. Owens, 352 F.3d 842, 846-7 (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 plaintiffs 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 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, 114 S.Ct. 2364. 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 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, 114 S.Ct. 2364. The case-by-case approach actually best honors these values by identifying all those § 1983 challenges which, if successful, would imply the invalidity of existing convictions. See Buford, supra, at 1533-34; Vink, supra, at 1106.

Our colleague in dissent reaches a different conclusion based on Montgomery v. De Simone, 159 F.3d 120 (3d Cir.1998), which considered whether the plaintiffs false arrest and imprisonment claims accrued on the day of the arrest or on the day of favorable disposition of the conviction. Plaintiff Rosemary Montgomery was *450arrested 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 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, 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 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.

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 plaintiffs 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 plaintiffs § 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 plaintiffs false arrest claim in Montgomery qualified as an exception to the Heck deferral rule, and thus accrued on the night of the arrest, does not mandate a blanket rule that all *451false 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 determination as to whether a plaintiffs § 1983 claim, if successful, would have the hypothetical effect of rendering the criminal conviction or sentence invalid. If this threshold is satisfied, the district court’s analysis is at an end, and the Heck deferred accrual rule is triggered. This approach is consistent with the dictates of Heck, and has been adopted by the majority of our sister circuits. See 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., 255 N.J.Super. 108, 604 A.2d 657, 680 (Law Div.1992), aff'd per curiam, 273 NJ.Super. 526, 642 A.2d 1029 (1994) (citing Pine v. Okzewski, 112 N.J.L. 429, 170 A. 825, 826 (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 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 U.S. at 487, 114 S,Ct. 2364. 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, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990), and evidence obtained from that unlawful *452stop excludable, see Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Gibson was arrested when the Defendant Troopers discovered drugs during the subsequent search of the car. These drugs were the only evidence supporting the drug charges against Gibson. Thus, success on his § 1983 claim for false arrest would “necessarily imply” that he was improperly convicted. As other courts have recognized, situations such as Gibson’s — where the only evidence supporting the conviction is tainted by a possible constitutional violation that is the subject of a § 1983 action — are perhaps the quintessential example of when the Heck deferred accrual rule is triggered. E.g., Covington, 171 F.3d at 123 (“On the other hand, in a case where the only evidence for conviction was obtained pursuant to an arrest, recovery in a civil case based on false arrest would necessarily impugn any conviction resulting from the use of that evidence.”) (emphasis in original).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, 114 S.Ct. 2364.

Therefore, under Heck, Gibson’s Fourth Amendment claims were not cognizable and did not accrue until his conviction was invalidated in April 2002. Thus, these claims, when filed in November 2002, were raised well within the two-year statute of limitations.21 We thus reverse with respect to this issue.

. Hereafter referred to as Gibson's car.

. 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, 241 F.3d at 53 n.4.

. 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.

. 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, 114 S.Ct. 2364.