ANTHONY JOHNSON, Plaintiff-Appellant, v. EDWARD WINSTEAD, et al., Defendants-Appellees.
No. 16-2372
United States Court of Appeals For the Seventh Circuit
ARGUED SEPTEMBER 18, 2017 — DECIDED AUGUST 14, 2018
Before BAUER, FLAUM, and SYKES, Circuit Judges.
Johnson moved to suppress his statements based on noncompliance with Miranda. The trial judge denied the motion. The case proceeded to trial in October 2007, and Detectives Las Cola and Winstead testified about Johnson‘s statements. The jury found him guilty, but the Illinois Appellate Court reversed based on an instructional error and remanded for a new trial. At the second trial in March 2012, the detectives repeated their testimony about Johnson‘s statements. Once again Johnson was convicted, but the appellate court again reversed, this time based on insufficient evidence to support accountability liability.
In August 2015 Johnson sued Detectives Las Cola and Winstead for damages under
We reverse in part. Heck blocks a
Even so, to the extent Johnson seeks damages stemming from the first conviction, the claims are time-barred. That conviction was reversed in 2010, starting the two-year limitations clock. So the suit is untimely as to those claims. But the claims for alleged Fifth Amendment violations in the second trial are timely. That conviction was reversed in 2014, and Johnson sued less than a year later.
I. Background
Johnson‘s criminal case has a lengthy factual and procedural history. We limit our account to the portions of the story that are necessary to understand his
Early in the morning on October 1, 2003, Brandon Baity was sitting in a car parked near the intersection of Emerald Avenue and 69th Street on the south side of Chicago when a gray Pontiac drove by and stopped in the middle of the street. A man emerged from the backseat, approached Baity‘s car, drew a gun, and opened fire. Baity was struck multiple times and died.
Police launched an investigation that eventually led them to Johnson. On December 4, 2003, Detective Robert Garza called Johnson and said that he‘d heard he had some information about Baity‘s murder. People v. Johnson, 23 N.E.3d 1216, 1232 (Ill. App. Ct. 2014) (second appeal). Johnson promised to call the detective back to discuss what he knew. That evening before the promised return call, Detective Garza spotted Johnson on the street and asked if he would accompany him to the police station to talk about the case. Johnson agreed and went with Garza to the station, but the detective didn‘t question him right away. Id. In the early morning hours of December 5, Detective Las Cola interviewed Johnson about the Baity murder. Johnson acknowledged that he drove the shooter to and from the scene and described the shooting in some detail. Id. at 1233. Other detectives questioned Johnson in separate interviews after daybreak. Detective Winstead did so that afternoon; he testified without contradiction—at the suppression hearing and both trials—that he gave Johnson Miranda warnings and that Johnson said he understood them. Id. at 1234.
Johnson told Detectives Las Cola and Winstead more or less the same story. On the night of the murder, he was driving around Chicago in a Pontiac Grand Am owned by a friend. Johnson had two passengers in the car that night: Clayton Sims and Nolan Swain. While they were driving around, Sims recognized the driver of a cream-colored car heading in the opposite direction. Sims told Johnson to do a U-turn and follow the car so he could “holler at that guy.” Id. Johnson followed Sims‘s instructions, and they tailed the car to Emerald and 69th, where it finally stopped. At Sims‘s direction Johnson pulled alongside and then parked the Pontiac slightly ahead of the other car, blocking its escape. Id. at 1233.
Sims got out, approached the other vehicle, drew a gun, and shot the driver multiple times. Johnson pulled forward and yelled to Sims, “Come on or I‘m going to leave you.” Id. at 1234. Sims sprinted to the Pontiac and jumped in, and they sped off. Johnson told both detectives that he had no idea Sims was planning to shoot the driver of the other car. He denied even knowing that
Several months later Chicago police arrested Swain and the owner of the Pontiac on unrelated drug charges, and the two men signed statements implicating Johnson in Baity‘s murder. Johnson claims the police coerced them to make and sign these statements. On June 1, 2004, Johnson was arrested for Baity‘s murder (he was already in custody on an unrelated murder charge), and a grand jury thereafter indicted both Sims and Johnson for the crime.
Johnson moved to suppress his statements to the detectives. After a suppression hearing on March 13, 2007, the trial judge denied the motion, ruling that Johnson was not in custody when he spoke to Detective Las Cola and that the other detectives (Winstead included) complied with Miranda and used no coercive interrogation tactics. Sims then moved to sever his case from Johnson‘s. The judge granted the motion, and the cases were tried separately—Johnson‘s on a theory that he was accountable for Sims‘s actions.
Johnson‘s case was tried twice, first in October 2007 and again in March 2012. During the first trial, the prosecution called Detectives Las Cola and Winstead to the witness stand on October 5 and elicited testimony about the statements Johnson made to them four years earlier. Generally speaking, they testified that Johnson admitted that he tailed Baity‘s car at Sims‘s direction, parked next to Baity‘s car in a position that blocked his escape, called Sims back to the car after the shooting, and drove away from the scene with Sims in the car. The detectives also testified that Johnson disclaimed any knowledge of Sims‘s plan to shoot Baity. (There was more to the prosecution‘s case, of course, but it‘s not necessary to canvass the evidence here.)
The defense called no witnesses and Johnson did not testify. The jury found him guilty. Johnson appealed, and the Illinois Appellate Court vacated the conviction and remanded for a new trial based on the judge‘s failure to clarify the law in response to a question from the jury. People v. Johnson, No. 1–08–0233, 1 N.E.3d 119 (Ill. App. Ct. 2010) (unpublished order). In this first appeal, Johnson did not contest the suppression ruling or otherwise challenge the admission of his statements at trial.
The case was retried in March 2012. On March 21 Detectives Las Cola and Winstead again took the stand and testified to Johnson‘s statements. This time Johnson called Sims as a defense witness; he had been acquitted in his own trial and thus faced no jeopardy. Sims denied that Johnson drove him away from the murder scene and claimed that Johnson had no idea that he was going to kill Baity. The jury found Johnson guilty.
On December 31, 2013, the Illinois Appellate Court reversed the conviction based on insufficient evidence of accountability, relying on People v. Phillips, 972 N.E.2d 724 (Ill. App. Ct. 2012), overruled by People v. Fernandez, 6 N.E.3d 145 (Ill. 2014). People v. Johnson, 3 N.E.3d 477 (Ill. App. Ct. 2013). The State sought review in the Illinois Supreme Court, which directed the appellate court to reconsider its decision in light of intervening caselaw. People v. Johnson, 22 N.E.3d 1162 (mem.) (Ill. 2014). On reconsideration the appellate court adhered to its original decision and reversed the conviction, issuing its decision on December 31, 2014. People v. Johnson, 23 N.E.3d at 1218. In this second round of appellate proceedings, Johnson again raised no challenge to the admission of his statements at trial.
The detectives moved to dismiss for failure to state a claim. See
II. Discussion
We review a
Civil-rights claims under
The Fifth Amendment provides that no person “shall be compelled in any criminal case to be a witness against himself.”
Under this general accrual rule, Johnson‘s claims came too late. The prosecution used his statements against him (through the testimony of the detectives) at his first
An exception exists, however, for certain claims barred by Heck v. Humphrey. Heck holds that
in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a
§ 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 . A claim for damages bearing that relationship to a convic-tion or sentence that has not been so invalidated is not cognizable under§ 1983 .
Heck arrived at this rule by analogizing a
Accordingly, when a
The Court gave the following example of the latter kind of claim:
For example, a suit for damages attributable to an allegedly unreasonable search may lie even if the challenged search produced evidence that was introduced in a state criminal trial resulting in the
§ 1983 plaintiff‘s still-outstanding conviction. Because of doctrines like independent source and inevitable discovery, … and especially harmless error, see Arizona v. Fulminante, 499 U.S. 279, 307–308, 111 S. Ct. 1246, 1263–1264, 113 L.Ed.2d 302 (1991), such a§ 1983 action, even if successful, would not necessarily imply that the plaintiff‘s conviction was unlawful.
Id. at 487 n.7 (citation omitted). This footnote was decisive in an Eighth Circuit case involving the application of Heck to a Fifth Amendment self-incrimination claim much like this one. See Simmons v. O‘Brien, 77 F.3d 1093, 1095 (8th Cir. 1996). We disagree with our sister circuit‘s approach, as we explain later. For now it‘s enough to say that the footnote must be read in full, taking note of what the Court said immediately after the passage we quoted above: “In order to recover compensatory damages, however, the
Read as a whole, the point of footnote 7 comes into sharper focus. The Court was drawing a conceptual distinc-tion between constitutional wrongs that occur and are complete outside a criminal proceeding (for example, unreasonable searches) and constitutional wrongs that occur within a criminal proceeding. Constitutional violations of the first type are independently actionable regardless of their impact on a conviction, which takes them outside the Heck rule—but with the important qualifier that the scope of recovery cannot include conviction-related injuries.1 On the other hand,
Heck‘s rule of “deferred accrual” implements the Heck bar. The Court was alert to the problem of the limitations clock ticking down on a potential
Just as a cause of action for malicious prosecution does not accrue until the criminal proceedings have terminated in the plaintiff‘s favor, so also a
§ 1983 cause of action for damages attributable to an unconstitutional conviction or sentence does not accrue until the conviction or sentence has been invalidated.
Id. at 489–90 (citations omitted).
It should be clear from this discussion that Heck can be deployed both defensively and offensively; that tension has sometimes produced inconsistency in application. The Heck bar is normally raised defensively to win dismissal of a
Wallace concerned the accrual rule for a
The plaintiff sought to overcome the limitations defense by invoking Heck‘s rule of deferred accrual. He maintained that his Fourth Amendment claim “could not accrue until the State dropped its charges against him.” Id. at 392. The Court rejected that argument, noting that a cause of action for violation of the right to be free from unreasonable seizure is complete and present before any conviction ensues—indeed, it is an actionable constitutional wrong independent of any conviction that might later be obtained (with or without the fruits of the unlawful arrest). Id. at 393–94. The Court explained that accepting the plaintiff‘s position would require “the adoption of a principle that goes well beyond Heck: that an action which would impugn an anticipated future conviction cannot be brought until that conviction occurs and is set aside.” Id. at 393. Wallace thus clarified that Heck delays the accrual of a
Relying heavily on Wallace, the detectives argue that Heck‘s rule of deferred accrual categorically does not apply to a
For his part, Johnson argues that Wallace is limited to Fourth Amendment claims and should not be extended to this context. He also resists the categorical approach proposed by the detectives. He argues instead that applying Heck to Fifth Amendment claims requires a fact-intensive, case-by-case inquiry. Under his preferred approach, a
Our cases since Wallace have sent mixed signals on the methodological question. Some take a categorical approach to Heck questions, either implicitly or explicitly. See, e.g., Moore v. Burge, 771 F.3d 444, 446 (7th Cir. 2014) (applying a categorical approach and drawing a distinction between claims based on “out-of-court events,” which are not Heck-barred, and claims based on misconduct at trial, which are); Johnson v. Dossey, 515 F.3d 778, 781–82 (7th Cir. 2008) (drawing a categorical distinction for claim-accrual purposes between Fourth Amendment false-arrest claims and Brady claims). Others approach Heck questions on a fact-intensive, case-by-case basis. See, e.g., Matz, 769 F.3d at 530–31 (finding that a false-confession claim was barred under Heck because the confession “figured prominently” in the judge‘s sentencing decision); see also Hill v. Murphy, 785 F.3d 242, 246–47 (7th Cir. 2015) (analyzing in extended dicta whether Heck would bar three not-yet-filed self-incrimination claims).
The clearest direction comes from Moore, which points toward a categorical approach. There five plaintiffs brought
We began by noting the contradiction in that ruling: “[I]f Heck governs, then these plaintiffs’ claims are too early, not too late.” Id. And whether Heck applied depended on the legal theory of relief. That is, we approached the Heck question categorically based on the nature of the claim at issue. Id.
Relying on Wallace and circuit precedent applying it, we held that Heck does not govern “claims based on out-of-court events, such as gathering of evidence, [which] accrue as soon as the constitutional violation occurs.” Id. We explained that police misconduct of this kind “does not (at least, need not) imply the invalidity of any particular conviction.” Id. Acknowledging that the Wallace line of cases dealt with claims for violation of the Fourth Amendment‘s rule against unreasonable searches and seizures, we explained that “their holdings are equally applicable to contentions that police tortured suspects during interrogation[] because that misconduct is actionable whether or not a suspect confesses[] and whether or not any statement is used in evidence at trial.” Id. Though the opinion does not explicitly say, this sentence can only be understood to refer to a due-process theory of relief. We know from Chavez that a Fifth Amendment self-incrimination violation occurs when an unlawfully obtained confession is introduced in a criminal case.
Moore continues with a passage that helpfully illuminates the Heck question presented here: “To the extent that [the four plaintiffs] may be arguing that [the] police violated their rights by giving false testimony, or that during trial prosecutors withheld material exculpatory evidence about misconduct during their interrogations, Heck indeed bars relief until a conviction is set aside.” Id. That‘s because a
Moore goes on to say that “[a]bsolute immunity for prosecutors and witnesses would make it hard for these plaintiffs to recover damages based on the conduct of the trials even if their convictions should be vacated some day.” Id. (citations omitted). That explained “why all five plaintiffs stress the injuries they say they suffered at the hands of the police before judicial proceedings began.” Id. “Those claims,” we concluded, “are unaffected by Heck and are outside the scope of anyone‘s absolute immunity.” Id.
Moore points the way toward greater consistency in evaluating Heck questions. Applying it here, we hold that Heck‘s rule of deferred accrual applies to
As we‘ve noted, the Eighth Circuit reached the opposite conclusion in Simmons v. O‘Brien, holding that Heck categorically does not apply to a
This misreads footnote 7 for the reasons we‘ve already explained. More fundamentally, the Eighth Circuit‘s holding is irreconcilable with Heck itself. The claims at issue there included a challenge to the admission at trial of an unlawful voice identification. Heck, 512 U.S. at 479. A constitutional error in admitting identification evidence at trial is subject to harmless-error review. See United States v. Sanders, 708 F.3d 976, 988 (7th Cir. 2013). If the Eighth Circuit is right, Heck would have come out differently, at least as to the unlawful identification claim. Finally, the Eighth Circuit‘s approach cannot be reconciled with our decision in Moore, which held that claims for trial-based constitutional violations are indeed Heck-barred until the conviction is overturned. For these reasons, we decline to follow Simmons.2
Our holding that Heck applies does not mean that all of Johnson‘s Fifth Amendment claims may proceed. To the extent that Johnson seeks damages associated with alleged Fifth Amendment violations at his first trial in 2007, the claims are indeed time-barred. That conviction was reversed in 2010, and the two-year time clock began to run then. The limitations period expired long before he filed this suit in 2015. The claims arising from the second trial in 2012 are timely, however. That conviction was reversed in 2014, and Johnson filed suit less than a year later.
For the foregoing reasons, we REVERSE the judgment in part and REMAND for further proceedings consistent with this opinion.