NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted September 2, 2021*
Decided September 3, 2021
Before
FRANK H. EASTERBROOK, Circuit Judge
DIANE P. WOOD, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
No. 21-1310
CHONG LENG LEE, Appeal from the United States
Plaintiff-Appellant, District Court for the Eastern
District of Wisconsin.
v.
No. 20-cv-0765-bhl
CITY OF APPLETON, WISCONSIN, et al.,
Brett H. Ludwig, Judge.
Defendants-Appellees.
Order
During the investigation that preceded Chong Leng Lee’s trial for murder, police in
Wisconsin interviewed three potential witnesses in 2013 but destroyed the recordings of
those interviews. The potential witnesses told the police that they feared retaliation for
assisting the investigators, who obliged by doing what they could to conceal the
*Appellees were not served with process in the district court and have not participated in the appeal.
After examining the brief and the record, we have concluded that oral argument is unnecessary. See Fed.
R. App. P. 34(a); Cir. R. 34(f).
No. 21-1310 Page 2
interviewees’ names from the defense. In 2015 counsel learned the names anyway, and
the potential witnesses were interviewed again. Lee asked the state court to dismiss the
prosecution as a sanction. The judge rejected that possibility but barred the prosecutor
from calling any of the three—though he allowed Lee to do so.
At trial Lee’s brother identified him as the shooter, and the prosecution showed that
Lee had admitted the murder to at least seven people. Lee did not call any of the three
potential witnesses. The jury returned a guilty verdict, and the state’s court of appeals
affirmed. 2020 WI App. 6 (Dec. 17, 2019). The appellate court concluded that the de-
struction of the evidence had violated Lee’s rights—and we shall assume for the sake of
argument that this is so—but that the trial court’s remedy prevented Lee from suffering
prejudice. The appellate court also held that the destroyed recordings had not contained
material exculpatory evidence.
Lee has not sought collateral review of that decision in either state or federal court.
Instead he filed this suit under 42 U.S.C. §1983, seeking damages for the intentional de-
struction of evidence. The district court rejected that argument on the merits, but we
conclude that it should not have done so. This civil suit is barred by Heck v. Humphrey,
512 U.S. 477 (1994), which holds that §1983 cannot be used to present arguments that
are incompatible with the validity of a criminal conviction. A §1983 claim is premature,
the Court held, unless the conviction has been set aside by appeal, collateral review,
pardon, or some equivalent way of establishing the conviction’s invalidity.
The arguments that Lee presents in this civil suit track the principal arguments he
advanced in the criminal prosecution as reasons why he could not be convicted. The
state judiciary rejected these arguments at trial and on appeal. The validity of the crimi-
nal judgment rests on the propriety of this conclusion. So long as that judgment stands
undisturbed, litigation under §1983 is premature. See Savory v. Cannon, 947 F.3d 409 (7th
Cir. 2020) (en banc). The district court should not have addressed the merits—not only
because the claim is premature but also because a decision in this civil suit could ham-
per effective review of the arguments in any future effort to have the conviction set
aside. See Post v. Gilmore, 111 F.3d 556 (7th Cir. 1997). We do not say that it is always
forbidden to bypass Heck and address the merits—after all, Heck does not concern sub-
ject-matter jurisdiction, see Polzin v. Gage, 636 F.3d 834, 838 (7th Cir. 2011)—but it was
imprudent to do so here.
One more issue requires brief comment. Lee named “Appleton Police Department”
as a defendant. The district judge noted that Wisconsin law does not treat police depart-
ments as entities separate from the cities that operate them, so the appropriate defend-
ant is the city itself. See Wis. Stat. §62.13. Lee protests that he is contesting an official
No. 21-1310 Page 3
policy that could lead to liability under Monell v. Department of Social Services, 436 U.S.
658 (1978), but this misses the district court’s point. Monell concerns the circumstances
under which a municipal entity can be liable; it does not displace state law on the ques-
tion whether something such as a police department is a juridical entity in the first
place. The right entity in Wisconsin is the municipality, and we have amended the cap-
tion accordingly.
Johnson v. Rogers, 944 F.3d 966 (7th Cir. 2019), observes that a claim barred by Heck
must be dismissed without prejudice, so that the litigant retains the full set of options to
attack the criminal judgment. See also Morgan v. Schott, 914 F.3d 1115, 1122 (7th Cir.
2019); Moore v. Burge, 771 F.3d 444, 446 (7th Cir. 2014). Accordingly, the judgment of the
district court is vacated, and we remand with instructions to dismiss the complaint
without prejudice.