No.

Supreme Court of the Uniteb State

ZOLTAN SZAJER; HELENE SZAJER,

Petitioners,

V.

CITY OF LOS ANGELES, et al.,

Respondents.

On Petition For A Writ Of CertiorariTo The United States Court Of Appeals

For The Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

C. D. MICHEL*JOSHUA R. DALEHILLARY J. GREENTAMARA M. RIDERMICHEL & ASSOCIATES, P.C.

180 East Ocean Boulevard,Suite 200

Long Beach, CA 90802Telephone: (562) 216-4444cmichel@michellawyers.com

*Counsel of Record

JOHN C. EASTMANCENTER FOR

CONSTITUTIONAL

JURISPRUDENCEc/o CHAPMAN UNIVERSITY

SCHOOL OF LAWOne University DriveOrange, CA 92866Telephone: (714) 628-2500

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964OR CALL COLI,ECT (402) 342-2831

Blank Page

QUESTION PRESENTED

Since this Court decided Heck v. Humphrey, 512U.S. 477 (1994), a circuit split has developed over themeaning of language in footnote seven of that case.The Ninth Circuit essentially held in the case pre-sented here for review that Heck bars all § 1983actions based on illegal search or seizure claims ifthere is still an outstanding conviction. The SeventhCircuit and others have held that these same claimscan go forward, which appears consistent with thisCourt’s previous directions.

The question presented is:

Whether a 42 U.S.C. § 1983 civil rights actionbased on a Fourth Amendment illegal search orseizure claim can proceed where the claimant has notbeen relieved of the conviction, but where neither the§ 1983 claim, nor the damages sought, necessarilyimplies the invalidity of, nor arises out of, the convic-tion.

ii

PARTIES TO THE PROCEEDING

Petitioners in Szajer v. City of Los Angeles, 632F.3d 607 (9th Cir. 2011) include the natural personsZoltan "Ted" Szajer and Helene Szajer.

Respondents include City of Los Angeles; LosAngeles Police Department; Los Angeles Chief ofPolice William Bratton; Los Angeles Police DetectiveMichael Mersereau; Los Angeles Police Detective R.Tompkins; Los Angeles Police Detective Yadon andLos Angeles Police Detective Conrado.

III

TABLE OF CONTENTS

Page

QUESTION PRESENTED ...................................i

PARTIES TO THE PROCEEDING .....................ii

TABLE OF CONTENTS ......................................iii

TABLE OF AUTHORITIES .................................vii

OPINIONS BELOW .............................................1

JURISDICTION ...................................................

CONSTITUTION AND STATUTE .......................1

STATEMENT OF THE CASE ..............................2

A. The Heck v. Humphrey Decision ................4

B. Statement of Facts ....................................7

C. District Court Proceedings and Court ofAppeals Decision .......................................10

REASONS FOR GRANTING CERTIORARI .......12

I. THE NINTH CIRCUIT CONFLICTSWITH THIS COURT’S RECENT RUL-ING IN HOW THE WORD "NECES-SARILY" IS INTERPRETED ANDAPPLIED IN SKINNER AND A CIR-CUIT SPLIT EXISTS IN HOW HECK ISINTERPRETED AND THEREFORE AP-PLIED ........................................................13

A. The Ninth Circuit’s Approach Direct-ly Conflicts With This Court’s RecentRuling ..................................................13

B. The Word "Necessarily" Needs Clari-fication .................................................15

iv

II.

TABLE OF CONTENTS - Continued

Page

C. An Acknowledged Circuit Split Existsin the Interpretation and Applicationof Heck v. Humphrey ...........................19

D. The Different Circuit Courts’ Opin-ions ......................................................22

1. The Second, Fifth, Sixth, andNinth Circuits’ Interpretation ofHeck ................................................22

2. The Seventh, Eighth, Tenth, andEleventh Circuits’ Interpretationof Heck ............................................23

E. The Circuit Split Seems to Be a Re-sult of Viewing "Convictions" Differ-ently .....................................................25

THE ISSUE IN CONFLICT IS RECUR-RING AND OF GREAT PRACTICAL IM-PORTANCE ...............................................27

A. The Important Purpose of § 1983Claims ..................................................27

B. The Issue Has Generated SubstantialLegal Scholarship ................................29

C. Claimants in Different JurisdictionsContinue to be Treated Disparately ....31

D. Appearance of Inconsistency to thePublic ...................................................32

E. Corrupting Effect on the Just Admin-istration of Plea Bargaining ................33

V

TABLE OF CONTENTS - Continued

Page

F. Some Circuits Illogically Treat AllConvictions Similarly No Matter HowThey Were Obtained ............................35

G. Different Statutes of LimitationsTriggers ................................................36

III. THE DECISION BELOW IS INCOR-RECT AND SQUARELY PRESENTSTHE CIRCUIT CONFLICT FOR THISCOURT’S RESOLUTION ..........................37

A. The Courts Below Improperly Con-flated the Illegal Search of the Storeas Being Inextricably IntertwinedWith the Warrant and SubsequentSearch of the House .............................37

B. Incorrect Precedent Interpreting"Necessarily" Barred the LowerCourts From Properly AnalyzingWhether the Szajers’ § 1983 ClaimNecessarily Implied the Invalidity ofTheir Conviction ..................................39

CONCLUSION .....................................................41

Appendix

Opinion of the U.S. Court of Appeals for theNinth Circuit ....................................................App. 1

TABLE OF CONTENTS - Continued

Page

Order Granting Defendants’ Motion for Sum-mary Judgment and Denying Plaintiffs’ Mo-tion to Continue the Trial and Extend theDiscovery Cut-Off Date and Motion to JoinDefendants of the U.S. District Court for theCentral District of California ........................ App. 13

Order Denying City of Los Angeles, et al.’sMotion to Dismiss of the U.S. District Courtfor the Central District of California ............ App. 34

Reporter’s Transcript of Proceedings, Septem-ber 29, 2008 of the U.S. District Court for theCentral District of California ........................App. 44

Appellants’ Opening Brief .................................App. 68

Appellees’ Answering Brief ...............................App. 85

Appellants’ Reply Brief. ...................................App. 116

Search Warrant and Affidavit .........................App. 127

vii

TABLE OF AUTHORITIES

CASES

Ballenger v. Owens, 352 F.3d 842 (4th Cir.

Page

2003) ........................................................................22

Beck v. City of Muskogee Police Dep’t, 195 F.3d553 (10th Cir. 1999) ..........................................25, 37

Brooks v. City of Winston-Salem, 85 F.3d 178(4th Cir. 1996) .........................................................21

Cabrera v. City of Huntington Park, 159 F.3d374 (9th Cir. 1998) ............................................21, 22

Calero-Colon v. Betancourt-Lebron, 68 F.3d 1(lst Cir. 1995) ..........................................................22

Carey v. Piphus, 435 U.S. 247 (1978) .........................28

Clay v. United States, 537 U.S. 522 (2003) ................27

Copus v. City of Edgerton, 151 F.3d 646 (7thCir. 1998) ..................................................... 19, 24, 25

Datz v. Kilgore, 51 F.3d 252 (llth Cir. 1995) .............25

Dennis v. Higgins, 498 U.S. 439 (1991) .....................29

Eidson v. State of Tennessee Dept. of Children’sServices, 510 F.3d 631 (6th Cir. 2007) ....................21

Fuller v. Oregon, 417 U.S. 40 (1974) ..........................27

Gonzales v. Entress, 133 F.3d 551 (7th Cir.1998) ........................................................................24

Grutter v. Bollinger, 539 U.S. 306 (2003) ..................27

Harvey v. Waldron, 210 F.3d 1008 (9th Cir. 2000) ....passim

Heck v. Humphrey, 512 U.S. 477 (1994) ............passim

viii

TABLE OF AUTHORITIES - Continued

Page

Helvering v. Wiese, 292 U.S. 614 (1934) .....................12

Imbler v. Pachtman, 424 U.S. 409 (1976) ..................28

Mackey v. Dickson, 47 F.3d 744 (5th Cir. 1995) .....21, 22

Mitchum v. Foster, 407 U.S. 225 (1972) .....................29

Nelson v. Campbell, 541 U.S. 637 (2004) .......14, 18, 27

People v. West, 3 Cal.3d 595 (1970) ............................35

Santobello v. New York, 404 U.S. 257 (1971) .............34

Schilling v. White, 58 F.3d 1081 (6th Cir. 1995) ........20

Shamaeizadeh v. Cunigan, 182 F.3d 391 (6thCir. 1999) ...........................................................21, 31

Simmons v. O’Brien, 77 F.3d 1093 (8th Cir.1996) ........................................................................24

Skinner v. Switzer, 131 S.Ct. 1289 (2011) .........passim

Stickel v. San Diego Elec. Ry. Co., 32 Cal.2d157 (1948) ................................................................36

Szajer v. City of Los Angeles, 632 F.3d 607 (9thCir. 2011) .........................................................passim

Thompson v. Keohane, 516 U.S. 99 (1995) .................31

Wallace v. Kato, 127 S.Ct. 1091 (2007) ..........12, 36, 40

Whitaker v. Garcetti, 486 F.3d 572 (9th Cir.2007) ................................................................passim

Woods v. Candela, 47 F.3d 545 (2d Cir. 1995) ......22, 31

Wyatt v. Coal, 504 U.S. 158 (1992) .............................29

ix

TABLE OF AUTHORITIES - Continued

Page

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. IV ........................................passim

STATUTES, RULES AND ORDINANCES

28 U.S.C. § 1254 ...........................................................1

28 U.S.C. § 2254 .........................................................28

42 U.S.C. § 1983 .................................................passim

Cal. Evid. Code § 787 (West 2009) .............................36

Cal. Penal Code § 1016(3) (West 2010) ......................35

Cal. Penal Code § 1203.4 (West 2010) .......................36

Civil Rights Act of 1871 ....................................2, 27, 28

Fed. R. Civ. Proc. 12 ....................................................10

Sup. Ct. R. 10 ..............................................................12

SCHOLARLY AUTHORITIES

Paul D. Vink, The Emergence of Divergence:The Federal Court’s Struggle to Apply Heck v.Humphrey to § 1983 Claims for Illegal Searches,35 Ind. L. Rev. 1085, 1086 (2002) ......... 15, 25, 30, 41

John Stanfield Buford, When the Heck DoesThis Claim Accrue? Heck v. Humphrey’sFootnote Seven and § 1983 Damages Suitsfor Illegal Search and Seizure, 58 Wash. &Lee L. Rev. 1493 (2001) ...........................................30

X

TABLE OF AUTHORITIES - Continued

Page

Michael Rowan, Leaving No Stone Unturned:Using RICO As A Remedy for Police Miscon-duct, 31 Fla. St. U. L. Rev. 231,248 (2003) ............30

Melissa L. Koehn, The New American CasteSystem: The Supreme Court and Discrimina-tion Among Civil Rights Plaintiffs, 32 U.Mich. J.L. Reform 49, 91 (1998) .............................30

1

OPINIONS BELOW

The opinion of the United States Court of Ap-peals for the Ninth Circuit below is reported at 632F.3d 607 (9th Cir. 2011). A copy of that opinion is atAppendix, App. 1-12. The opinion of the District

Court for the Central District of California is cited atSzajer v. City of Los Angeles, No. 2:07-CV-07433 (C.D.Cal. Nov. 12, 2008). A copy of that opinion is at App.13-33.

JURISDICTION

On February 11, 2011, the Ninth Circuit Court ofAppeals rendered judgment affirming the DistrictCourt’s Order granting summary judgment. ThisCourt has jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTION AND STATUTE

U.S. Const. amend. IV:

The right of the people to be secure in theirpersons, houses, papers, and effects, againstunreasonable searches and seizures, shallnot be violated, and no Warrants shall issue,but upon probable cause, supported by Oathor affirmation, and particularly describingthe place to be searched, and the persons orthings to be seized.

2

Section 1 of the Civil Rights Act of 1871, codifiedat 42 U.S.C. § 1983, provides in relevant part:

Every person who, under color of any statute,ordinance, regulation, custom, or usage, ofany State or Territory or the District of Co-lumbia, subjects, or causes to be subjected,any citizen of the United States or other per-son within the jurisdiction thereof to thedeprivation of any rights, privileges, or im-munities secured by the Constitution andlaws, shall be liable to the party injured inan action at law, suit in equity, or otherproper proceeding for redress ....

STATEMENT OF THE CASE

A stark and express split of circuit opinion existsregarding how Heck’s now infamous footnote seven(hereafter "Footnote Seven") should be interpreted.This split has generated substantial legal scholarshipand appears to be a result of each circuit’s interpreta-tion of the word "necessarily." The Ninth Circuit’sapproach in the case presented here for review seemsto directly contradict this Court’s recent decision inSkinner v. Switzer, 131 S.Ct. 1298 (2011).

As it stands now, a convicted claimant’s abilityto litigate a 42 U.S.C. § 1983 ("§ 1983") action de-pends on their geography. The Ninth Circuit hasadopted what amounts to a blanket bar of all § 1983actions arising from illegal searches or seizureswhere the claimant has failed to obtain relief fromthe conviction. The Ninth Circuit’s rule arises from

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its interpretation of this Court’s decision in Heck v.Humphrey, 512 U.S. 477 (1994). In Heck, this Courtheld that as a general rule, claimants cannot bring§ 1983 actions if doing so would necessarily imply theinvalidity of the conviction.

The Seventh Circuit has led other circuits inadopting a contrary rule, one that allows § 1983actions for illegal searches or seizures even where the

claimant has not obtained relief from the conviction,to proceed forward in almost all circumstances.

This Court’s recent precedent seems to confirmthe Seventh Circuit’s approach. In the case presentedhere for review, the Ninth Circuit maintains itsapparently contrary position.

Here, Petitioners Ted Szajer and his wife Helenewere subject to an unwarranted search and seizureand faced criminal prosecution. For various reasons,rather than challenge the unlawful search and sei-zure in the criminal case, they entered into a pleabargain and pled no contest to a single count ofalleged illegal possession of a particular firearm.Their plea resulted in probation. They subsequentlyfiled a § 1983 action to recover damages for the illegalseizure of firearms and property that was both unre-

lated to their conviction, and to the warrant used toseize the particular firearm which formed the basis ofthe count to which they later pled.

Because they live in California, the Ninth Circuitessentially bars the Szajers, and others with illegalsearch and seizure claims, from further litigating

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§ 1983 claims and from showing why the damagessought do not arise from their conviction, and fromshowing why their lawsuit does not necessarily implythe invalidity of their conviction.

With the various interpretations and applicationsof the word "necessarily," it is unfair that a claimant’sability to seek damages for constitutional violations isdictated by geography.

A. The Heck v. Humphrey Decision

In 1994, this Court dealt with an inmate’s abilityto bring a § 1983 claim prior to the reversal of hisconviction. The petitioner, Roy Heck, was convicted ofvoluntary manslaughter. While his appeal was pend-ing, Heck filed a § 1983 claim alleging the police andother state actors conducted an "arbitrary investiga-tion" that included the illegal destruction of evidenceof an exculpatory nature. Both the federal districtcourt and the Seventh Circuit Court of Appealsdismissed the § 1983 Complaint because it was seenas a collateral attack on the legality of his conviction.

This Court held:

[I]n order to recover damages for allegedlyunconstitutional conviction or imprisonment,or for other harm caused by actions whoseunlawfulness would render a conviction orsentence invalid, a § 1983 plaintiff mustprove that the conviction or sentence hasbeen reversed on direct appeal, expunged byexecutive order, declared invalid by a state

tribunal authorized to make such determina-tion, or called into question by a federalcourt’s issuance of a writ of habeas corpus... A claim for damages bearing that rela-tionship to a conviction or sentence that hasnot been so invalidated is not cognizable un-der § 1983.

Heck, 512 U.S. at 486-87 (emphasis in original)(citation and footnote omitted).

Heck further explained its rule:

[W]hen a state prisoner seeks damages in a§ 1983 suit, the district court must considerwhether a judgment in favor of the plaintiffwould necessarily imply the invalidity of hisconviction or sentence; if it would, the com-plaint must be dismissed unless the plaintiffcan demonstrate that the conviction or sen-tence has already been invalidated. But ifthe district court determines that the plain-tiff’s action, even if successful, will notdemonstrate the invalidity of any outstand-ing criminal judgment against the plaintiff,the action should be allowed to proceed.

Id. at 487 (emphasis in original).

In Footnote Seven of its opinion, Heck set forthan example under which its rule barring § 1983actions might not apply to instances of illegal searches

and seizures:

For example, a suit for damages attributableto an allegedly unreasonable search may lieeven if the challenged search produced

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evidence that was introduced in a state crim-inal trial resulting in the § 1983 plaintiff’sstill-outstanding conviction. Because of doc-trines like independent source and inevitablediscovery, and especially harmless error,such a § 1983 action, even if successful,would not necessarily imply that the plain-tiff’s conviction was unlawful.

Id. at 487 n.7 (emphasis in original) (quotations

omitted).

This Court thus left the question of when a§ 1983 claim based on an illegal search or seizurewould "necessarily imply the invalidity of the convic-tion" to district courts. This open question has led tothe current circuit split. Footnote Seven’s examplehas resulted in different interpretations and applica-tions of Heck, primarily because of how each circuitinterprets the word "necessarily."

Some circuits have applied a broad interpretationof when a § 1983 claim for illegal search or seizurenecessarily attacks the underlying criminal convic-tion. The Ninth Circuit, among others, essentiallyholds that illegal search and seizure claims poten-tially always imply the invalidity of the conviction,thus leading to that circuit’s series of decisions effec-tively barring all § 1983 actions based on an illegal

search or seizure where a conviction still stands.

Other circuits, like the Seventh Circuit, apply avery narrow interpretation of when a § 1983 claim forillegal search and seizure necessarily implies the

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invalidity of the conviction. Claimants in the NinthCircuit seeking damages for an illegal search andseizure will thereby be denied relief, while claimantsseeking relief in the Seventh Circuit will be allowedto proceed, even in instances potentially broader thanthose contemplated in Heck.

B. Statement of Facts

Petitioners, Ted Szajer and his wife Helene, wereowners and operators of "LA Guns" a legally licensedretail firearm store that operated in the City of WestHollywood, California. (App. 14).

On November 17, 2005, acting pursuant to in-formation obtained from two confidential informants,the Los Angeles Police Department (LAPD) conducteda sting operation at the Szajers’ gun store to deter-mine whether the Szajers were illegally buying orselling firearms. (App. 4-15).

At approximately 3:30 p.m., a confidential in-formant was sent into the store and attempted to sell14 firearms. Mr. Szajer recognized that purchasingone of the firearms would be illegal and refused tobuy it. (App. 15). When the informant refused to takeit back, Mr. Szajer told him he would turn it over tothe police himself. (App. 14). Mr. Szajer purchasedthe other firearms believing them all to be legal.(App. 15). Mr. Szajer also immediately called thepolice to request a Deputy Sheriff come to the store toretrieve the one illegal firearm. (App. 4).

8

Within minutes of the sting’s conclusion, andwhile Mr. Szajer was still on the phone with thepolice reporting the illegal firearm, officers raided thestore. (App. 14-15). For at least four hours, theSzajers were handcuffed to chairs and watched asofficers searched the business while a search warrantwas being obtained. The officers searched cabinets,drawers, and shelves (App. 73), seized legally pos-sessed handguns, rifles, shotguns, firearm ac-cessories, and office equipment, and tore off and dis-carded legally required registration paperwork fromfirearms that were then seized (App. 37). All of thiswas done without a search warrant. (App. 73).

At 10:00 p.m. that evening, more than six hoursafter the sting and subsequent search and seizurefrom the store occurred, a search warrant was finallyissued. It authorized the search of the Szajers’ resi-dence, vacation home, and gun store. (App. 17). Onlythree incidents were cited in the affidavit in supportof the warrant: two interviews from confidentialinformants, and a description of the sting earlier thatday. (App. 6-17). Neither the subsequent search of thestore, nor the property seized or any informationlearned as a result of the four-hour search and sei-zures of property from the gun store was included inthe warrant’s affidavit, (App. 16-17) and in fact madeno mention of the warantless search and seizuresfrom the store after the sting operation. (App. 16-17,

119-121).

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After the search warrant was finally obtained,each of the three separate properties listed in thewarrant were simultaneously searched that samenight. (App. 18). It was during the separate search ofthe Szajers’ home that police discovered an allegedlyunlawful H&K semiautomatic pistol. Possession ofthat specific firearm formed the basis for Count 8 ofthe 13 alleged felony violations with which theSzajers were initially charged. (App. 5).

The Szajers pled no contest to Count 8 of thecriminal complaint, i.e., the unlawful possession ofthe H&K pistol found at the home, and were sen-tenced to probation. (App. 5). All of the other countsinvolving materials found at the Szajers’ store,whether during the four-hour warrantless search, orduring the subsequent searches that occurred afterthe warrant was issued, were dismissed. (App. 101).Thus, of the 13 criminal counts relating to illegalpossession of firearms, it was only the firearm foundin their home that formed the basis for the count towhich the Szajers pled and were convicted.

The police never returned the property andfirearms seized during the four-hour warrantlesssearch. (App. 75). Because they engaged in a warrant-less search and seizure of property at the Szajers’store that was neither included in the warrant lead-ing to the search of their home, and unrelated to thebasis for the count they pled to, the Szajers soughtdamages against the City under § 1983.

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C. District Court Proceedings and Courtof Appeals Decision

The Szajers First-Amended Complaint against

the City of Los Angeles, et al., was filed on February25, 2008 and alleged (1) Illegal Seizure, and (2) Fail-ure to Train and Supervise.

The district court denied the City’s Federal Rulesof Civil Procedure, Rule 12(b)(6) motion, finding thatthere were significant allegations of an illegal searchand seizure that was conducted by the City. In par-ticular the district court noted that "Defendants havenot presented any declarations that demonstrate

the search warrant and affidavit at issue in this caserelate to the search, seizure, and ultimate criminalprosecution ... Nor is there any evidence thatthe same search warrant formed the basis for thesearches at both Plaintiffs’ business establishmentand their personal residence." (App. 42-43).

The district court subsequently granted the City’ssummary judgment motion finding that, notwith-standing the credible allegations of an illegal searchand seizure, the Ninth Circuit’s precedent interpret-ing Heck barred the Szajers’ claims of illegal searchand seizure as an impermissible collateral attack ontheir convictions. (App. 30-31, 33).

The court of appeals affirmed the district court’sgrant of summary judgment, upholding the conclu-sion that the Szajers’ illegal search and seizure claimswere barred, as a favorable judgment for the Szajers

11

would necessarily imply the invalidity of their convic-tions. (App. 11-12).

As support for its holding, the court of appealscited Heck and its own precedent interpreting Heck,concluding that Heck barred the Szajers’ § 1983illegal search and seizure claim. The court stated that

"the searches of their residence and gun shop werebased on the same search warrant and supportingaffidavit." (App. 11) (emphasis in original). "[T]heircivil claims necessarily challenge the validity of theundercover operation and in doing so imply that therewas no probable cause to search for weapons." (App.

11). No mention of the four-hour warrantless searchhowever, was included in either the District Order orthe Szajer opinion.

The court of appeals also expressly noted thatthere was a split of authority between the NinthCircuit and the Seventh Circuit, but "decline[d] totake up the Szajers’ invitation to follow the SeventhCircuit’s approach because this Court must follow itsown precedent." (App. 10).

The court of appeals noted the blanket ruleadopted in its circuit barring all Fourth Amendmentclaims where the underlying conviction has not beenoverturned:

Although footnote seven left open the ques-tion of the applicability of Heck to FourthAmendment claims, this Court has since an-swered that question affirmatively. See, e.g.,Whitaker v. Garcetti, 486 F.3d 572, 583-84

12

(9th Cir. 2007); Harvey v. Waldron, 210 F.3d1008, 1015 (9th Cir. 2000), overruled in parton other grounds by Wallace v. Kato, 549U.S. 384, 393-94, 127 S.Ct. 1091, 166L.Ed.2d 973 (2007).

(App. 9) (citations in original).

Relying on its own precedent, the court of ap-peals held that all §1983 illegal search or seizureclaims are barred by Heck absent relief from theconviction. (App. 10-12). And with only a cursoryexamination of the underlying facts, coupled with aconflated view of the search at issue, concluding thatHeck barred the Szajers’ claims was a foregone con-clusion.

REASONS FOR GRANTING CERTIORARI

Granting certiorari is appropriate when there isa conflict between a court of appeals decision and adecision of this Court. Sup. Ct. R. 10(c).

Review by this Court is also appropriate when acircuit split exists, as one does here. Sup. Ct. R. 10(a).

Moreover, if a court of appeals decision belowpredates a conflicting decision by this Court, thisCourt may grant certiorari and reverse the judgmentsummarily on the authority of its own interveningdecision. Helvering v. Wiese, 292 U.S. 614 (1934). Orthe Court may grant certiorari, vacate the decision

13

below, and remand for reconsideration in the light of

the recent decision.

I. THE NINTH CIRCUIT CONFLICTS WITHTHIS COURT’S RECENT RULING IN HOWTHE WORD "NECESSARILY" IS INTER-PRETED AND APPLIED IN SKINNER ANDA CIRCUIT SPLIT EXISTS IN HOW HECK ISINTERPRETED AND THEREFORE APPLIED

A. The Ninth Circuit’s Approach DirectlyConflicts With This Court’s Recent Ruling

Szajer was issued February 11, 2011. On March

7, 2011 in Skinner v. Switzer, 131 S.Ct. 1289, 1298(2011), this Court appears to have sanctioned theSeventh Circuit’s interpretation of the word "neces-sarily" by overturning the Fifth Circuit’s approach byexplaining that even if Skinner’s § 1983 suit for DNAtesting were successful, a favorable judgment wouldstill not "necessarily imply" the invalidity of hisconviction. This Court therefore held that a convictedstate prisoner who had been sentenced to death forthree murders was permitted to assert a § 1983 civilrights claim for the state’s failure to allow him to seekDNA testing of crime-scene evidence, and eventhough he was still in custody. On direct appeal, hisconviction and sentence were upheld. Six years afterhis conviction, Texas enacted a statute which permit-ted prisoners to gain post-conviction DNA testing inlimited circumstances. The petitioner moved twice instate court to invoke the Texas statute for testing ofuntested biological evidence but both motions weredenied.

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The petitioner thereafter filed a federal action forinjunctive relief under § 1983 against the TexasDistrict Attorney, alleging Texas violated his Four-teenth Amendment right to due process by refusing toprovide for the DNA testing he requested. Despitehaving his complaint dismissed by the district courtbecause his action was not brought under a writ ofhabeas corpus, and having that decision affirmed bythe United States Court of Appeals for the FifthCircuit, this Court granted certiorari and reversedthe Fifth Circuit’s judgment.

This Court stated:

Success in his suit for DNA testing would not’necessarily imply’ the invalidity of his con-viction. While test results might prove excul-patory ... results might prove inconclusiveor they might further incriminate Skinner.See Nelson v. Campbell, 541 U.S. 637, 647(2004) ("[W]e were careful in Heck to stressthe importance of the term ’necessarily.’ ").

Id. (citation in original).

Like Skinner where"necessarily imply" the

DNA testing would notpetitioner’s conviction or

custody was invalid, the Szajers’ § 1983 action wouldnot "necessarily imply" that their convictions wereinvalid either. Treating Skinner’s "custody" analo-gously to a conviction, this Court therefore disagreedthat Skinner’s § 1983 suit would "necessarily impl[y]the unlawfulness of the State’s custody." Id. at 1293(quoting Wilkinson v. Dotson, 544 U.S. 74, 81 (2005)).

15

Significantly, and as will be more fully explainedbelow, Skinner was from the Fifth Circuit, a circuitthat for purposes of the current circuit split, agreeswith the Ninth Circuit’s position and was overturnedby this Court. Without this Court’s intervention, theNinth Circuit will persist in its view despite thisCourt’s recent clarification that the Seventh Circuit’sposition is the correct view.

B. The Word "Necessarily" Needs Clarifi-cation

It bears repeating that Heck was concerned withwhether preliminarily a § 1983 claim should beallowed to proceed - not whether it would be success-ful on the merits. The circuit split comes down to eachcircuit’s interpretation and application of the word"necessarily," a word this Court carefully included inits holding. The different treatment of § 1983 illegalsearch or seizure claims by the circuits must beresolved by this Court and can be accomplished witha clarification of Heck’s meaning of the word "neces-sarily" in Footnote Seven. It is unfortunate andanathema to the intent behind the enactment of§ 1983 that a claimant’s ability to seek damages forconstitutional violations is dictated by geography. SeePaul D. Vink, The Emergence of Divergence: TheFederal Court’s Struggle to Apply Heck v. Humphreyto § 1983 Claims for Illegal Searches, 35 Ind. L. Rev.

1085, 1086 (2002).

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Justice Souter recognized this disparity betweenthe potential application of Heck by the circuits andCongress’ intent in enacting § 1983. In his concur-rence in Heck he warned that the strict application ofthe rule against collateral attacks on convictionswould work contrary to Congress’ intent:

[R]eading § 1983 to exclude claims from fed-eral court would run counter to "§ 1983’s his-tory" and defeat the statute’s "purpose."Consider the case of a former slave framedby Ku Klux Klan-controlled law-enforcementofficers and convicted by a Klan-controlledstate court of, for example, raping a whitewoman; and suppose that the unjustly con-victed defendant did not (and could not) dis-cover the proof of unconstitutionality untilafter his release from state custody. If it werecorrect to say that § 1983 independently re-quires a person not in custody to establishthe prior invalidation of his conviction, itwould have been equally right to tell theformer slave that he could not seek federalrelief even against the law-enforcement offi-cers who framed him unless he first man-aged to convince the state courts that hisconviction was unlawful ....

Nor do I see any policy reflected in a con-gressional enactment that would justifydenying to an individual today federal dam-ages (a significantly less disruptive remedythan an order compelling release from custody)merely because he was unconstitutionallyfined by a State, or to a person who discovers

17

after his release from prison that, for ex-ample, state officials deliberately withheldexculpatory material. And absent such astatutory policy, surely the common law cangive us no authority to narrow the "broadlanguage" of § 1983, which speaks of depri-vations of "any" constitutional rights, privi-leges, or immunities, by "[e]very" personacting under color of state law, and to which"we have given full effect [by] recogniz-ing that § 1983 ’provide[s] a remedy, to bebroadly construed, against all forms of offi-cial violation of federally protected rights.’"

Heck, 512 U.S. at 501-02 (Souter, J., concurring)(citations omitted).

Justice Souter’s warning is particularly apt,considering how post-Heck decisions have led to

uneven access to § 1983 remedies.

In a 2004 decision, this Court further attemptedto address its use of the word "necessarily" in Heck,stating:

Although damages are not an availablehabeas remedy, we have previously conclud-ed that a § 1983 suit for damages that would"necessarily imply" the invalidity of the factof an inmate’s conviction, or "necessarily im-ply" the invalidity of the length of an in-mate’s sentence, is not cognizable under§ 1983 unless and until the inmate obtainsfavorable termination of a state, or federalhabeas, challenge to his conviction or sen-tence. Heck v. Humphrey, 512 U.S. 477, 487,

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114 S.Ct. 2364, 129 L.Ed.2d 383 (1994);Edwards v. Balisok, 520 U.S. 641, 648, 117S.Ct. 1584, 137 L.Ed.2d 906 (1997). This "fa-vorable termination" requirement is neces-sary to prevent inmates from doing indirectlythrough damages actions what they couldnot do directly by seeking injunctive relief-challenge the fact or duration of their con-finement without complying with the proce-dural limitations of the federal habeasstatute. Muhammad, 540 U.S., at 751, 124S.Ct. 1303 (2004). Even so, we were carefulin Heck to stress the importance of the term"necessarily." For instance, we acknowledgedthat an inmate could bring a challenge to thelawfulness of a search pursuant to § 1983 inthe first instance, even if the search revealedevidence used to convict the inmate at trial,because success on the merits would not"necessarily imply that the plaintiff’s convic-tion was unlawful." 512 U.S., at 487, n. 7,114 S.Ct. 2364 (noting doctrines such as in-evitable discovery, independent source, andharmless error). To hold otherwise wouldhave cut off potentially valid damages actionsas to which a plaintiff might never obtain fa-vorable termination - suits that could other-wise have gone forward had the plaintiff notbeen convicted.

Nelson v. Campbell, 541 U.S. 637, 646-47 (2004)(emphasis added).

Finally, as stated above in Skinner, this Courtagain drew attention to the proper interpretation of

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the word "necessarily" as it appeared to sanction theSeventh Circuit’s interpretation of this word bystating that even if Skinner were successful in his§ 1983 action, a favorable judgment would not "neces-sarily imply" the invalidity of his conviction. Skinner,

131 S.Ct. at 1298.

C. An Acknowledged Circuit Split Exists inthe Interpretation and Application ofHeck v. Humphrey

The Ninth Circuit has acknowledged that "[t]hereis a split in the circuits as to how Heck’s footnoteseven should be interpreted." Harvey v. Waldron, 210F.3d 1008, 1015 (9th Cir. 2000).

Szajer is the most recent decision to acknowledgethat the various federal circuit courts have adopted atleast two divergent positions on § 1983 illegal searchor seizure claims:

The Seventh Circuit read [sic] footnote sevento mean that 1983 claims based on FourthAmendment violations may proceed becauseHeck simply does not bar such claims. SeeCopus [v. City of Edgerton], 151 F.3d 646,648-49 (7th Cir. 1998). These holdings, how-ever, are in direct conflict with Ninth Circuitprecedent. See Whitaker, 486 F.3d at 583-84.

(App. 10) (citations in original).

The Supreme Court left open the questionwhether Heck’s bar applies to FourthAmendment violations. See Heck, 512 U.S. at

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487 n.7 ("[A] suit for damages attributable toan allegedly unreasonable search may lieeven if the challenged search produced evi-dence that was introduced in a state criminaltrial resulting in the § 1983 plaintiff’s still-outstanding conviction." (emphasis added)).

Whitaker v. Garcetti, 486 F.3d 572, 583 (9th Cir. 2007).

Other federal courts have also noted the currentcircuit split:

[T]he Seventh Circuit continues to allow aFourth Amendment exception to this [favor-able termination] rule ....

The Seventh Circuit misreads Heck. The factthat a Fourth Amendment violation may notnecessarily cause an illegal conviction doesnot lessen the requirement that a plaintiffshow that a conviction was invalid as an el-ement of constitutional injury.

Schilling v. White, 58 F.3d 1081, 1086 (6th Cir. 1995)(emphasis in original).

Federal courts have interpreted this footnotein two different ways. Certain courts readthis language to create a general exceptionto the doctrine of Heck for Fourth Amend-ment unreasonable--search claims broughtagainst state officials under § 1983 ....

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This court read the footnote in Heck as clearlyrejecting the conclusion that a general excep-tion to the requirement that a conviction beset aside exists for Fourth Amendmentclaims under 1983.

Shamaeizadeh v. Cunigan, 182 F.3d 391, 395-96 (6thCir. 1999) (noting its disagreement with the SeventhCircuit), abrogated on other grounds by Eidson v.State of Tennessee Dept. of Children’s Services, 510

F.3d 631 (6th Cir. 2007), cert. denied, 528 U.S. 1021(1999). See also Cabrera v. City of Huntington Park,159 F.3d 374, 380 (9th Cir. 1998) (holding that suc-cess on false arrest claim would "necessarily imply"that conviction for disturbing the peace was invalidas not based on probable cause); Brooks v. City ofWinston-Salem, 85 F.3d 178, 183 (4th Cir. 1996) (Heckbars civil rights claims "when a § 1983 plaintiff’ssuccess on a claim that a warrantless arrest was notsupported by probable cause necessarily would impli-cate the validity of the plaintiff’s conviction or sen-tence"); Mackey v. Dickson, 47 F.3d 744, 746 (5th Cir.1995) (per curiam) (stating that "a claim of unlawfularrest, standing alone, does not necessarily implicatethe validity of a criminal prosecution following thearrest," but staying the civil action until the criminalprosecution was completed (emphasis in original)).

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D. The Different Circuit Courts’ Opinions

1. The Second, Fifth, Sixth, and NinthCircuits’ Interpretation of Heck

The Second, Fifth, Sixth and Ninth Circuitsimpliedly treat Footnote Seven of Heck as dicta. Theycharacterize it as merely an example of a § 1983claim that could be allowed to proceed as long as itdoes not impugn the validity of the conviction. Butthese circuits have essentially found that as a prelim-inary matter Fourth Amendment illegal search orseizure claims will always "necessarily" imply theinvalidity of the conviction, so they bar all suchclaims unless the underlying conviction has been

nullified. See Whitaker v. Garcetti, 486 F.3d 572(9th Cir. 2007); Harvey, 210 F.3d at 1015; Schilling,58 F.3d at 1086; Mackey, 47 F.3d at 746; Woods v.Candela, 47 F.3d 545 (2d Cir. 1995) (per curiam), cert.denied, 516 U.S. 808 (1995). See also Calero-Colon v.Betancourt-Lebron, 68 F.3d 1, 4 (1st Cir. 1995) (find-ing that false arrest claim in a § 1983 action requireda finding of acquittal before a cause of action wouldaccrue, similar to the requirements of a maliciousprosecution claim); Cabrera, 159 F.3d at 380 (acquit-tal needed to bring false arrest and Fourth Amend-ment claims under § 1983); Ballenger v. Owens, 352F.3d 842, 846 (4th Cir. 2003) ("[w]hen evidence de-rived from an illegal search would have to be sup-pressed in a criminal case if the judgment in the§ 1983 claim were to be applied to the criminal caseand the suppression would necessarily invalidate thecriminal conviction, the stated principle of Heck

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would apply, and the § 1983 claim would have to bedismissed").

2. The Seventh, Eighth, Tenth, andEleventh Circuits’ Interpretation ofHeck

The Seventh, Eighth, Tenth, and Eleventh Cir-cuits take the position that Footnote Seven creates anexception to the general bar articulated in Heck andallows essentially all § 1983 claims based on analleged illegal search or seizure to proceed, despitethe existence of a still-outstanding conviction, be-cause such claims will not necessarily imply that theconviction is invalid.

Thus, for example, the Ninth Circuit takes theapproach that no cases may proceed as "all" illegalsearch or seizure claims necessarily attack the under-lying conviction, while the Seventh Circuit takes theopposite approach. The Seventh Circuit’s rationalerelies on the idea that at the pleading stage thepossibility always exists that doctrines like inevitablediscovery might apply to avoid necessarily implyingthe invalidity of the conviction. Whether the "all"approach favored by some circuits is the correctinterpretation of Footnote Seven, the "nothing" ap-proach more correctly interprets Heck, or whethersome approach in between "all" or "nothing" should beadopted, it is clear that the current "all" or "nothing"difference between the various circuits is a substan-tial split of opinion that should be reconciled.

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The leading Seventh Circuit case of Copus v. Cityof Edgerton, 151 F.3d 646 (7th Cir. 1998), illustratesthe Seventh Circuit’s position that no § 1983 claimsbased on illegal search and seizures "necessarily"imply an underlying conviction’s invalidity. In Copus,the plaintiff was convicted for possession of illegalweapons after police searched his home without awarrant. Copus filed a § 1983 claim based on thealleged illegal search and subsequent seizure of hisweapons at his home. On appeal from the district’sdismissal under Heck, the Seventh Circuit reversedthe district court and concluded that "Heck does notbar a claim such as Copus" because "Fourth Amend-ment claims for unlawful searches ... do not neces-sarily imply a conviction is invalid, so in all casesthese claims can go forward." Id. at 647-48 (emphasisadded).

The Seventh Circuit reasoned that "a search canbe unlawful but the conviction entirely proper, or thereverse." Id. at 649 (quoting Gonzales v. Entress, 133F.3d 551, 554 (7th Cir. 1998)). Thus, according to theSeventh Circuit, Heck did not require that Copus’illegal search and seizure claims be dismissed be-

cause even if his § 1983 claim was successful, underall circumstances it would not "’necessarily’... im-pugn the validity of his conviction." Id.

The Eighth, Tenth and Eleventh circuits likewiseagree that Footnote Seven creates a general exceptionto Heck for § 1983 illegal search or seizure claims.See, e.g., Simmons v. O’Brien, 77 F.3d 1093, 1095 (8thCir. 1996) (holding that "[b]ecause harmless error

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analysis is applicable to the admission at trial ofcoerced confessions, judgment in favor of Simmons onthis § 1983 action challenging his confession will notnecessarily demonstrate the invalidity of his convic-tion" (emphasis in original)); Datz v. Kilgore, 51 F.3d252, 253 n.1 (11th Cir. 1995) (holding that Heck didnot bar Datz’s § 1983 unlawful search claim "because,even if the pertinent search did violate the FederalConstitution, Datz’s conviction might still be validconsidering such doctrines as inevitable discovery,independent source, and harmless error"); Beck v.City of Muskogee Police Dep’t, 195 F.3d 553 (10th Cir.

1999).

E. The Circuit Split Seems to Be a Resultof Viewing "Convictions" Differently

Convictions come about as a result of manydifferent factors. (See Vink, supra, at 1105). Someconvictions are the result of an actual finding of guiltthrough a trial, whereas most come from plea bar-gains where merits are never actually argued - or atleast not to the level that a "conviction" suggests tothe layperson. In other words, for courts to logicallydeclare that illegal search claims will not, as a pre-liminary matter, "necessarily" imply the invalidity ofa conviction, these courts also inevitably mustacknowledge the difference between the admissibilityof evidence versus whether that same evidence wasobtained legally. Copus, 151 F.3d at 648.

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So whereas the Seventh Circuit and its adher-ents’ holdings contemplate that convictions may (andoften are) made up of separate and different searches,seizures, evidence, etc., the Ninth Circuit and itsadherents appear to view a conviction as an indivis-ible package - a sort of sum of all of its parts, regard-less of whether any of those "parts" were unlawful.Under this approach, if there is still an outstandingconviction (regardless of how it was obtained, whetherby an actual finding of guilt, plea, one search oranother) then any challenge to any of the underlyingsearches or seizures will necessarily imply the in-validity of the conviction as a whole.

Consequently, in order to proceed with a § 1983claim based on the same allegations that would bepermissible in the Seventh Circuit, a claimant in theNinth Circuit must essentially prove that the convic-tion itself, as a whole, is unlawful. Requiring theplaintiff to prove the invalidity of the conviction as awhole however, is an entirely different and moreonerous burden than demonstrating that the § 1983action will not "necessarily" imply the invalidity ofthe conviction. Nor is that what Heck requires asevidenced by this Court in Skinner.

Yet despite this Court emphasizing that its use ofthe term "necessarily" was not meant to foreclose aparticular class of suits (like those based upon FourthAmendment illegal search or seizure claims) andsuggesting that an analysis of whether the § 1983action in a particular claimant’s circumstance neces-sarily constitutes a collateral attack on a conviction

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must occur, the Ninth Circuit and others followingNelson nonetheless have continued to apply theiroverly restrictive rule barring § 1983 claims. See, e.g.,Whitaker, 486 F.3d at 583-84; Harvey, 210 F.3d at1015.

II. THE ISSUE IN CONFLICT IS RECUR-RING AND OF GREAT PRACTICAL IM-PORTANCE

This Court has referred repeatedly in its opinionsto the fact that certiorari was granted "to resolvedisagreement among the courts of appeals on a ques-tion of national importance," Grutter v. Bollinger, 539

U.S. 306, 322 (2003), to review a "narrow but recur-ring question on which courts of appeals have di-vided," Clay v. United States, 537 U.S. 522, 524(2003), or "[b]ecause of the importance of the questionpresented and the conflict of opinion on the constitu-tional issue involved ...." Fuller v. Oregon, 417 U.S.40, 42 (1974).

More significantly, there now appears to be adirect conflict between the Ninth Circuit’s approachand a decision of this Court.

A. The Important Purpose of § 1983 Claims

Originally drafted as part of the 1871 CivilRights Act following the Civil War, § 1983 was toprovide a civil remedy for minorities victimized bystate actors acting at the behest of the Ku Klux Klan.

See Heck, 512 U.S. at 501. Section 1983 created a

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means for all citizens to recover damages if it isproven that a state actor violated a constitutionalright by failing or refusing to enforce state law.It "was intended to ’[create] a species of tort liability’in favor of persons who are deprived of ’rights, privi-leges, or immunities secured’ to them by the Consti-tution." Carey v. Piphus, 435 U.S. 247, 253 (1978)(quoting Imbler v. Pachtman, 424 U.S. 409, 417

(1976)).

Moreover, it is well-recognized in this Court’sjurisprudence that § 1983 claims are still an im-portant tool for convicts to address the terms of theirconfinement, or for members of the public to addresscivil rights violations. See Heck, 512 U.S. at 480.

Heck itself recognizes that § 1983 claims are animportant tool for addressing grievous injuries bystate actors acting under color of authority. "This caselies at the intersection of the two most fertile sourcesof federal-court prisoner litigation - the Civil RightsAct of 1871, 42 U.S.C. § 1983, and the federal habeascorpus statute, 28 U.S.C. § 2254. Both of these pro-vide access to a federal forum for claims of unconsti-tutional treatment at the hands of state officials."Heck, 512 U.S. at 480 (citation omitted).

Justice Souter’s concurrence in Heck highlightedthe importance of § 1983 claims by observing thatthis Court has refused to allow "even well-settledcommon-law rules into § 1983 "’if [the statute’s]history or purpose counsel against applying [such

rules] in § 1983 actions.’" Heck, 512 U.S. at 492

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(quoting Wyatt v. Coal, 504 U.S. 158, 164 (1992)).Justice Souter further highlighted the import of§ 1983 claims by noting that their "very purpose" is"to interpose the federal courts between the Statesand the people, as guardians of the people’s federalrights." Heck, 512 U.S. at 501 (quoting Mitchum v.Foster, 407 U.S. 225, 242 (1972)).

Finally, Justice Souter explained, "surely thecommon law can give us no authority to narrow the’broad language’ of § 1983, which speaks of depriva-tions of ’any’ constitutional rights, privileges, orimmunities, by ’[e]very’ person acting under color ofstate law, and to which ’we have given full effect [by]recognizing that § 1983 ’provide[s] a remedy, to bebroadly construed, against all forms of official viola-tion of federally protected rights.’" Heck, 512 U.S. at502 (quoting Dennis v. Higgins, 498 U.S. 439, 443, 445(1991)). Because this aspect of the Heck decision - what§ 1983 claims may necessarily be precluded by Heck -squarely implicates the breadth of the public’s accessto tools for redressing injuries to their basic rights;the public importance of resolving this issue is not amatter of happenstance or mere convenience.

B. The Issue Has Generated SubstantialLegal Scholarship

The inconsistent circuit treatment of § I983claims based on Fourth Amendment illegal search orseizure violations is well-recognized and has gener-ated substantial legal scholarship. The article by

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Vink, supra, at 1089, explained that Heck’s Foot-note Seven is responsible for the current rift in thecircuit courts as it has caused disagreement aboutthe proper application of the Heck holding to § 1983claims for illegal searches and seizures.

Another article, John Stanfield Buford, When theHeck Does This Claim Accrue? Heck v. Humphrey’sFootnote Seven and § 1983 Damages Suits for IllegalSearch and Seizure, 58 Wash. & Lee L. Rev. 1493,1499 (2001) explained:

In footnote seven of the [Heck] opinion, theCourt offered a § 1983 action for damagesfrom an illegal search as an illustrativeexample of a claim that might not imply theinvalidity of a conviction. The U.S. CircuitCourts of Appeals are badly divided over theproper interpretation of this footnote, withone group holding that the footnote allowsimmediate accrual of all illegal searchclaims, and the opposing group requiring acase-by-case examination of the plaintiff’sclaim before allowing accrual. (footnotesomitted).

Another article, Michael Rowan, Leaving NoStone Unturned: Using RICO As A Remedy for Police

Misconduct, 31 Fla. St. U. L. Rev. 231, 248 (2003)noted that "Heck has been the downfall of many§ 1983 claims and has likely kept many more fromever being brought." (footnotes omitted). And another,Melissa L. Koehn, The New American Caste System:The Supreme Court and Discrimination Among Civil

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Rights Plaintiffs, 32 U. Mich. J.L. Reform 49, 91(1998) contends that although this Court in Heckattempted to clarify when a suit to vindicate thedeprivation of constitutional rights by state officialsshould proceed under § 1983, instead "it furthercomplicated the existing scheme [and] ... did notprovide much guidance for lower courts on this issue."

An issue that has generated this much academiccommentary is particularly ripe for this Court’sreview.

C. Claimants in Different JurisdictionsContinue to be Treated Disparately

Severe disparities between the ability of claim-ants to seek redress for civil rights injuries, based onnothing more than a particular claimant’s locationare disfavored. Such disparities currently exist, andmake this case ripe for this Court’s review. See, e.g.,Thompson v. Keohane, 516 U.S. 99, 106 (1995) (certio-rari granted where the circuits disagreed on theproper application of federal habeas corpus statute"[b]ecause uniformity among federal courts is im-portant on questions of this order").

This Court has allowed this issue to developamong the circuits by denying certiorari to earlierappeals. See, e.g., Shamaeizadeh, 182 F.3d 391, andCandela, 47 F.3d 545, perhaps anticipating that thecircuit conflict would resolve itself over time, withoutthe need for further "gentle guidance" from thisCourt. But that, unfortunately, has not happened. In

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light of the continuing, frequent, and disparate treat-ment of claimants seeking relief under § 1983 forclaims arising out of illegal searches or seizures, andthe havoc caused by such inconsistent treatment, asunderscored by the amount of legal commentariesgenerated, it is time for this Court to resolve the splitamong the circuits. The important constitutionalrights at stake, coupled with this Court’s desire for

consistency and finality, warrant a resolution of thissplit in favor of the Seventh Circuit line of cases. SeeHeck, 512 U.S. at 485 (expressing desire to accountfor consistency, finality, and federalism).

This issue is also not likely to be resolved infuture cases. The circuits are not only going to con-tinue to follow their own precedent, but, as mentionedabove, will continue to disagree with one anotherabsent clear direction from this Court.

D. Appearance of Inconsistency to thePublic

Several courts are concerned that conflictingapproaches may convey an impression to the public ofinconsistent verdicts between the civil and criminalcourt systems. See, e.g., Harvey, 210 F.3d at 1015(indicating that embracing the Ninth Circuit’s posi-tion "will avoid the potential for inconsistent deter-minations on the legality of a search and seizure inthe civil and criminal cases and will therefore fulfillthe Heck Court’s objectives of preserving consistencyand finality"). The judiciary’s legitimacy is derived in

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part from how the public perceives it, and as it standsnow, the public may be confused or disillusioned bywhat appears to be inconsistent jurisprudence.

Public confusion over disparate treatment indifferent jurisdictions also undermines the public’sconfidence in the justice system. The Ninth Circuit’sposition inevitably leaves without a remedy some§ 1983 claimants whose constitutional rights havebeen violated. This is especially the case when the"conviction" is merely a result of evidence beingobtained by overzealous police and prosecutors whoargue it was "used" for the conviction - regardless ofwhether it actually was, or whether such seizure waslawful.

Finally, the appearance that citizens from onejurisdiction are not getting the same treatmentregarding alleged civil rights violations as citizensfrom another jurisdiction raises an additional incon-sistency that undermines the judiciary in the eyes ofthe public.

E. Corrupting Effect on the Just Admin-istration of Plea Bargaining

Under the Ninth Circuit’s approach, once defen-dants are advised that a conviction forecloses anyfuture civil claim for essentially any illegal searchand seizure, defendants will have stronger incentivesto file motions to suppress evidence and forgo pleabargains lest their plea bar a future right to recoverdamages for state violations of their civil rights.

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Conversely, police in particular, and to a lesserextent prosecutors, will feel pressured to obtain aconviction in order to foreclose the possibility of asubsequent civil rights action being filed againstpolice or municipal entities. Perversely, this would beespecially true in cases involving police officers whohave violated a defendant’s civil rights. Those officerswill have an incentive to push for a conviction so thattheir wrongdoing cannot be brought to light in asubsequent civil case. The more egregious the civilrights violation, the greater the incentive to bury itby securing a conviction.

Such an outcome is contrary to the just admin-istration of case settlement, and to the preferences ofthis Court.

The disposition of criminal charges byagreement between the prosecutor and theaccused, sometimes loosely called ’plea bar-gaining,’ is an essential component of theadministration of justice. Properly adminis-tered, it is to be encouraged. If every criminalcharge were subjected to a full-scale trial,the States and the Federal Governmentwould need to multiply by many times thenumber of judges and court facilities.

Santobello v. New York, 404 U.S. 257, 260 (1971)(emphasis added).

The Szajer opinion will discourage the otherwiseefficient and just disposition of cases through proper-ly administered plea bargaining in state and federalcourts in the Ninth Circuit.

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F. Some Circuits Illogically Treat AllConvictions Similarly No Matter HowThey Were Obtained

The Ninth Circuit’s "bar all" approach to itsinterpretation of Heck fails to acknowledge thatconvictions often differ in character and are treateddifferently depending on how they were obtained. TheNinth Circuit’s treatment of all convictions as thesame, or as one indivisible linear package for purpos-es of barring subsequent § 1983 actions under Heckoverlooks the practical reality that different jurisdic-tions treat convictions differently. For example,California has several different methods for obtaining

a "conviction," each of which have different effects onsubsequent actions in state civil proceedings.

In California, a nolo contendere plea allows pleaswithout a stipulation to the facts, and still allows aclaimant to proceed with a civil claim without theconviction being used against the claimant. Cal.Penal Code § 1016(3) (West 2010). A "West" plea isone made specifically without stipulating to the facts.See People v. West, 3 Cal.3d 595, 613 (1970). Thus, aCalifornia criminal defendant can be "convicted" of acrime that was solely the result of a plea bargain, i.e.,only tangentially related to the actual crime, andwhich will be inadmissible in any subsequent civilaction.

The type of conviction will also affect its eviden-tiary value in a subsequent civil proceeding. Forexample in California, misdemeanor convictions are

36

inadmissible in any subsequent civil action unlesssuch conviction tends to call into question the verac-ity of the convicted. See Cal. Evid. Code § 787 (West2009); Stickel v. San Diego Elec. Ry. Co., 32 Cal.2d157, 162 (1948). California also allows certain convic-tions to later be expunged upon completion of proba-tion terms. See Cal. Penal Code § 1203.4 (West 2010).

Although California treats convictions in vastlydifferent ways based upon the type of crime and themethod used to obtain the conviction, the NinthCircuit, in applying California convictions to federalcases, fails to account for these differences in anyway. Thus by applying a blanket bar to § 1983 relief,the Ninth Circuit and other circuits unreasonablytreat the Szajers’ plea to probation as the same typeof conviction as a finding of guilt by a jury.

G. Different Statutes of Limitations Trig-gers

One last effect of the split between the circuits isthat it leads to different and potentially confusinglimitations calculations in different circuits. ThisCourt said in Wallace v. Kato, 127 S.Ct. 1091, 1098(2007), that Heck does not delay the accrual of anotherwise complete and present cause of action whena judgment in the plaintiff’s favor "would impugn ananticipated future conviction." But the differentinterpretations of Heck’s Footnote Seven nonethelesslead to different starting points for periods of limita-tions. For example the Seventh Circuit, which allows

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§ 1983 illegal search claims while convictions stillstand, starts the clock when the alleged illegal searchhappens. See Beck v. City of Muskogee Police Dep’t,195 F.3d 553, 558 (10th Cir. 1999) (making the claim-ant in the Seventh Circuit having to be especiallyaware of his Fourth Amendment violation for pur-poses of knowing how much time he has to bring his§ 1983 claim), while the Ninth Circuit holds that thestatute of limitations does not begin until the convic-tion has been invalidated in some way.

III. THE DECISION BELOW IS INCORRECTAND SQUARELY PRESENTS THE CIR-CUIT CONFLICT FOR THIS COURT’SRESOLUTION

A. The Courts Below Improperly Conflatedthe Illegal Search of the Store as BeingInextricably Intertwined With the War-rant and Subsequent Search of the House

Szajer squarely presents to this Court the unrea-sonable effect of the circuit split. It is also the mostdirect example of how the Ninth Circuit’s misinter-pretation of Footnote Seven has barred a § 1983 claimthat would not "necessarily" imply the invalidity ofthe conviction.

Significantly, the Szajers’ § 1983 action wouldhave done just the opposite because it sought torecover damages for the illegally seized firearms andproperty from their store that were not even used to

secure the warrant that led to their conviction. The

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Ninth Circuit improperly characterized the nature ofthe sting, the warrantless search, and the subsequentsearch pursuant to the warrant, conflating the stingwith the subsequent warrantless search of the store:

The November 17 undercover operation wasthe only basis for finding probable cause tosearch both the gun shop and residence. Yet,the Szajers failed to challenge the search.Just as in Whitaker, if the Szajers prevailedon their Section 1983 claim, it would neces-sarily imply the invalidity of their state courtconvictions. Their civil claims necessarilychallenge the validity of the undercover op-eration and in doing so imply that there wasno probable cause to search for weapons.

(App. 11).

The State admitted that not only were chargesstemming from the warrantless search of the busi-ness dismissed, but that the conviction at issue isspecifically based on the weapon found at the house,not at the Szajers’ store. (App. 19). The State alsoacknowledged that the warrant leading to the searchof the house was not based on the search of the busi-ness, but on the "weapons transaction," i.e., the stingthat preceded the illegal search and seizure. (App.100).

The Szajers can therefore fully litigate the factthat the officers seized weapons without a warrantand failed to return those weapons, without everattacking the warrant or the subsequent search oftheir home. The taking of the Szajers’ weapons had

39

no effect on the issuance of the warrant as thoseevents were not listed in the affidavit supporting thewarrant. Again, it was the warrant authorizing thehome search that lead to the firearm upon which theSzajers were convicted.

In other words, the warrantless search andseizure at the Szajers’ store was not causally-relatedor used to support the warrant leading to the laterhome search that ended in the convictions. Becausethe warrantless search and seizure of the weaponswas not relied upon to obtain a conviction, the riskof an "inconsistent judgment" does not exist whereit can be clearly pointed out that the judgment/

conviction relates to one search, and the § 1983 actionrelates to a separate, independent one. See Harvey,210 F.3d at 1015.

B. Incorrect Precedent Interpreting "Nec-essarily" Barred the Lower CourtsFrom Properly Analyzing Whether theSzajers’ § 1983 Claim Necessarily Im-plied the Invalidity of Their Conviction

Although the Szajers’ claims for damages werefrom a warrantless search that was inconsequential

to their conviction, the lower courts’ decisions none-theless concluded the § 1983 claims constituted acollateral attack on the convictions, and so werebarred. These foregone conclusions were mandated bythe Ninth Circuit’s precedent barring all such claims.

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In short, although the Ninth Circuit did a cursoryand incorrect assessment of the effect of the warrant-less seizure of the weapons on the Szajers’ § 1983claims, the Ninth Circuit’s conclusion that theSzajers’ claims would be barred was a foregone con-clusion. This is because, as was explained in Szajer,the Ninth Circuit bars § 1983 claims based uponFourth Amendment illegal search or seizure claimswhere the underlying conviction has not been over-

turned:

Although footnote seven left open the ques-tion of the applicability of Heck to FourthAmendment claims, this Court has since an-swered that question affirmatively. See, e.g.,Whitaker v. Garcetti, 486 F.3d 572, 583-84(9th Cir. 2007); Harvey v. Waldron, 210 F.3d1008, 1015 (9th Cir. 2000), overruled in parton other grounds by Wallace v. Kato, 549U.S. 384, 393-94, 127 S.Ct. 1091, 166L.Ed.2d 973 (2007).

Accordingly, § 1983 claims premised on al-leged Fourth Amendment violations are notentirely exempt from the Heck analysis, asthe Szajers suggest.

(App. 9).

In sum, the lower courts’ analysis began with the

incorrect premise that if the Szajers’ claims touchedat all upon their conviction, their claims would bebarred by Heck. Because there was an outstandingconviction (regardless of how it was obtained, whether

41

by an actual finding of guilt, plea, one search oranother) then any challenge to any of the underlyingsearches or seizures necessarily implies invalidity ofthe conviction as a whole - regardless of the lack ofany causal connection that might conceivably bringthe validity of the conviction into question. See Vink,supra, at 1105.

In stark contrast to the fact-determinative flexi-ble policy suggested in Heck’s Footnote Seven (andemployed in the Seventh Circuit and elsewhere), theNinth Circuit’s policy is akin to a "zero tolerance,"blocking all § 1983 claims from claimants whoseconviction, however tenuously related, still stands.This results in a gross injustice for claimants like theSzajers and others who happen to be in the NinthCircuit’s jurisdiction.

CONCLUSION

The Szajers brought a § 1983 claim for damagesresulting from the warrantless search and seizure ofproperty from their business. Nothing from thatwarrantless search and seizure was used in anymanner to get a warrant that led to the discovery ofthe H&K pistol in their home that formed the basis

for their conviction. Yet, because the conviction stillstood, the Ninth Circuit barred the claim even thoughthe Szajers’ claim would almost certainly have had noimpact whatsoever on the validity of the conviction.

42

Had the Szajers’ lived in the Seventh, Eighth,Tenth, or Eleventh Circuit, their § 1983 claimsagainst the City would be being litigated today. If theNinth Circuit’s interpretation of Footnote Seven inHeck were not as broad as the Seventh, Eighth,Tenth, and Eleventh Circuits’ interpretation, butnonetheless attempted to be faithful to Footnote

Seven, then the Szajers would likely be litigatingtheir claims against the City in a California federaldistrict court today.

This gross injustice seems to be the exact sort ofexception that Footnote Seven in Heck contemplated.

This Court should grant this Petition for a Writof Certiorari.

C. D. MICHEL*JOSHUA R. DALEHILLARY J. GREENTAMARA M. RIDERMICHEL & ASSOCIATES, P.C.180 East Ocean Boulevard,

Suite 200Long Beach, CA 90802Telephone: (562) 216-4444cmichel@michellawyers, corn

*Counsel of Record

Date: April 28, 2011

Respectfully submitted,

JOHN C. EASTMANCENTER FOR

CONSTITUTIONALJURISPRUDENCE

c/o CHAPMAN UNIVERSITYSCHOOL OF LAW

One University DriveOrange, CA 92866Telephone: (714) 628-2500