Olivier v. City of Brandon, Mississippi
3:21-cv-00636
| S.D. Miss. | Sep 23, 2022Background
- Plaintiff Gabriel Olivier, an evangelical demonstrator, regularly protested on public sidewalks near the City of Brandon’s Brandon Amphitheater, using signs, literature, and voice amplification.
- City evidence (attestations and video) showed prior incidents where Olivier’s speech allegedly provoked confrontations and disrupted pedestrian/traffic flow at a primary Amphitheater intersection.
- In December 2019 the City enacted Ordinance §50-45 restricting demonstrations in a designated ‘‘Restricted Area’’ during Amphitheater events and creating a specific Protest Area with time, location, and conduct limits.
- On May 1, 2021, Olivier refused to relocate to the designated Protest Area, was arrested for violating §50-45, pled nolo contendere in municipal court, received a suspended jail term and a fine, and did not appeal.
- Olivier then filed a §1983 suit and a motion for a preliminary injunction seeking declaratory and injunctive relief, claiming the Ordinance unconstitutionally restricts his religious speech; Defendants moved for judgment on the pleadings or summary judgment arguing, inter alia, that Heck bars the suit.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Does Heck bar Olivier's §1983 challenge after his nolo contendere plea? | Olivier: he is not seeking to overturn conviction; Heck inapplicable because he is not in custody and seeks only constitutional review of the ordinance. | Defendants: the nolo plea produced a conviction; success on Olivier's claims would necessarily imply invalidity of that conviction, so Heck bars the action. | Court: Held Heck bars Olivier's §1983 claims because his nolo contendere is treated as a conviction under Mississippi law and success would imply invalidity of that conviction. |
| 2. Is Olivier entitled to a preliminary injunction enjoining enforcement of §50-45? | Olivier: injunction needed to prevent continuing violation of his First and Fourteenth Amendment rights. | Defendants: Olivier cannot show likelihood of success on the merits (Heck bar), so injunction should be denied. | Court: Denied—because Heck precludes the merits, Olivier cannot show likelihood of success, a prerequisite for preliminary injunctive relief. |
| 3. Did the court adjudicate the constitutionality (facial or as-applied) of the Ordinance? | Olivier: Ordinance unconstitutionally restricts religious speech at the intersection. | Defendants: Ordinance is a content-neutral time/place regulation adopted for public safety and crowd control. | Court: Did not reach merits; declined to evaluate the Ordinance’s constitutionality because Heck barred the §1983 claims. |
| 4. Was Olivier’s nolo contendere treated as a conviction under controlling law? | Olivier: impliedly argued plea does not preclude §1983 challenge because he lacks habeas remedy. | Defendants: Mississippi law treats nolo contendere as a conviction; municipal conviction was not vacated. | Court: Yes—the Mississippi decisions and statutory scheme treat nolo contendere as a conviction; Olivier’s conviction remains effective and precludes his §1983 action under Heck. |
Key Cases Cited
- Heck v. Humphrey, 512 U.S. 477 (bars §1983 suits that would imply invalidity of a conviction)
- Aucoin v. Cupil, 958 F.3d 379 (applying Heck’s favorable-termination rule)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (pleading plausibility standard)
- Ashcroft v. Iqbal, 556 U.S. 662 (pleading standard and plausibility analysis)
- Bailey v. State, 728 So. 2d 1070 (Miss. 1997) (Mississippi treats nolo contendere pleas as convictions)
- Planned Parenthood of Gulf Coast, Inc. v. Gee, 862 F.3d 445 (5th Cir. 2017) (preliminary injunction standard in the Fifth Circuit)