This is the second of a two-part column. The first part was published on Monday.
Ruling that a U.S. District Court judge erred in dismissing Johnnie Lee Savory’s Jan. 11, 2017, lawsuit against city of Peoria and the police officers who allegedly framed him in 1977 for a rape and two murders when he was 14, an en banc decision from the 7th U.S. Circuit Court of Appeals concluded that the two-year deadline that Section 1983 of the Civil Rights Act of 1871 borrowed from Illinois personal-injury law started running on Jan. 12, 2015, when Savory was pardoned by Gov. Pat Quinn.
But Judge Frank H. Easterbrook dissented, arguing that the statute of limitations started running when Savory was released from custody — more than two years before he sued — and that the “terrible price” of Savory’s victory under the accrual rule adopted by the majority is that thousands of convicts with “substantively valid constitutional claims” will never be able to sue under Section 1983.
Easterbrook called for following U.S. Supreme Court Justice David H. Souter’s concurring opinion in Heck v. Humphrey, 512 U.S. 477 (1994). Although footnote 10 in Heck rejected the Souter approach, Easterbrook viewed that discussion as nonbinding dicta.
And Easterbrook called for using equitable tolling to protect “ex-prisoners who, despite exercising reasonable diligence, cannot obtain essential evidence within two years of their release.” Savory v. Cannon, No. 17-3543 (Jan. 7, 2020).
The second of two articles on Savory’s appeal starts with additional highlights of Judge Ilana Diamond Rovner’s majority opinion for the full court and concludes with more of Easterbrook’s dissent (both with light editing and omissions not noted):
The misunderstanding that led to the erroneous result in the district court here originated in a concurrence in Heck filed by Justice Souter and joined by Justices Harry A. Blackmun, John Paul Stevens and Sandra Day O’Connor.
In that concurrence, Justice Souter agreed that reference to the common law tort of malicious prosecution was a useful starting point but he asserted that it could not alone provide the answer to the conundrum found at the intersection between Section 1983 and the federal habeas statute.
Ultimately, Justice Souter suggested a slightly different rule that he submitted would avoid any collision between Section 1983 and the habeas statute:
“A state prisoner may seek federal court Section 1983 damages for unconstitutional conviction or confinement, but only if he has previously established the unlawfulness of his conviction or confinement, as on appeal or on habeas. This has the effect of requiring a state prisoner challenging the lawfulness of his confinement to follow habeas’ rules before seeking Section 1983 damages for unlawful confinement in federal court.” Heck, 512 U.S. at 498 (Justice Souter concurring).
For persons not in custody for the purposes of the habeas statute, Souter continued, “people who were merely fined, for example, or who have completed short terms of imprisonment, probation or parole, or who discover (through no fault of their own) a constitutional violation after full expiration of their sentences,” there would be no requirement to show “the prior invalidation of their convictions or sentences in order to obtain Section 1983 damages for unconstitutional conviction or imprisonment.”
This was because the effect of imposing that requirement “would be to deny any federal forum for claiming a deprivation of federal rights to those who cannot first obtain a favorable state ruling. The reason, of course, is that individuals not ‘in custody’ cannot invoke federal habeas jurisdiction, the only statutory mechanism besides Section 1983 by which individuals may sue state officials in federal court for violating federal rights. That would be an untoward result.” Heck, 512 U.S. at 500 (Justice Souter concurring).
In contrast, of course, the Heck majority’s rule requires that a plaintiff always obtain a favorable resolution of the criminal conviction before bringing a Section 1983 claim that would necessarily imply the invalidity of a conviction or sentence. The majority opinion specifically rejected Justice Souter’s alternate rule. Heck, note 10.
The court thus expressly rejected a rule tied to the end of custody. In that same footnote, the court also dismissed the notion that Section 1983 must be interpreted in a manner that provides a remedy for all conceivable invasions of federal rights. In other words, there is not always a Section 1983 remedy for every constitutional wrong.
But in Spencer v. Kemna, 523 U.S. 1 (1998), Justice Souter again filed a concurrence expressing the view that he urged in his Heck concurrence, namely “that a former prisoner, no longer ‘in custody,’ may bring a Section 1983 action establishing the unconstitutionality of a conviction or confinement without being bound to satisfy a favorable-termination requirement that it would be impossible as a matter of law for him to satisfy.”
Justice Ruth Bader Ginsburg, who had been in the majority in Heck, this time agreed with Justice Souter (who was also joined by Justices O’Connor and Stephen G. Breyer), joining his concurrence and filing her own: “Individuals without recourse to the habeas statute because they are not ‘in custody’ (people merely fined or whose sentences have been fully served, for example) fit within Section 1983’s broad reach.” Spencer, 523 U.S. at 21 (Justice Ginsburg concurring).
Justice Stevens dissented in Spencer, but he approved Justice Souter’s basic premise: “Given the court’s holding that petitioner does not have a remedy under the habeas statute, it is perfectly clear, as Justice Souter explains, that he may bring an action under Section 1983.” Spencer, 523 U.S. at 25 (Justice Stevens dissenting).
The defendants [sued by Savory] contended in the district court and maintain on appeal that this dicta in concurring and dissenting opinions, cobbled together, now formed a new majority, essentially overruling footnote 10 in Heck. But it is axiomatic that dicta from a collection of concurrences and dissents may not overrule majority opinions.
The Supreme Court may eventually adopt Justice Souter’s view, but it has not yet done so and we are bound by Heck.
Unlike my colleagues, I think that we should adopt the rule proposed by Justice Souter, concurring in Heck (joined by three other [j]ustices), and later espoused by Justice Ginsburg, see Spencer v. Kemna, 523 U.S. 21-22 (1998), under which the end of custody marks the end of deferral.
One Court of Appeals has followed that path. See Poventud v. New York, 715 F.3d 57 (2d Cir. 2013). We should too.
Footnote 10 is the only part of the court’s opinion in Heck to address the appropriate treatment of plaintiffs whose custody has ended, and a clearer example of dicta is hard to imagine.
The footnote concerns a subject that had not been briefed by the parties, that did not matter to the disposition of [Roy] Heck’s claim, and that the majority thought would not matter to anyone, ever. Heck did not present for decision any question about the appropriate treatment of this situation.
Some sentences are too short to allow collateral relief. We routinely see cases in which it has taken a decade to pursue a direct appeal, collateral review in state court and collateral review in federal court.
If confinement ends before collateral review begins, the custody requirement prevents all further review. If the sentence is fully served while state collateral review is ongoing, federal collateral review cannot begin.
So a rule under which a Section 1983 claim does not accrue as long as the criminal judgment stands means that thousands of defendants sentenced to less than five or  years in prison can never present a Section 1983 claim, no matter how egregious the constitutional violations that led to wrongful conviction and custody.
Released prisoners can obtain relief under the majority’s approach if their convictions are set aside by pardon (Savory’s situation) or certificate of innocence. Yet in most states pardons are rare and pardons for federal crimes are rarer still.
Getting a certificate of innocence is wickedly hard in both state and federal systems, because the applicant must show factual innocence and even an acquittal does not establish that.
Proof of innocence — the need to prove a negative — is difficult to come by. Again Savory may be an exception; he eventually found conclusive DNA evidence. Few wrongly convicted persons are so fortunate.
Delayed availability of evidence is another problem. Proof that a given police officer systematically lied or fabricated evidence in a way that produced convictions may not become available until any particular sentence is over. It may take decades for official misconduct to come to light.
Under the majority’s rule this delay means that a Section 1983 claim will never accrue unless the former prisoner can obtain a pardon or certificate of innocence. On my view, by contrast, the claim accrues no later than release from prison.
Ex-prisoners who, despite exercising reasonable diligence, cannot obtain essential evidence within two years of their release, may invoke the doctrine of equitable tolling to postpone the time to litigate. It is neither necessary nor appropriate to have a federal rule that defers accrual indefinitely.
Congress could create by legislation a rule foreclosing damages until a plaintiff, although no longer in prison, has been vindicated by a pardon or certificate of innocence, but such a rule cannot be found in any enacted statute.
As long as accrual is governed by federal common law we ought to implement a rule that protects the states’ principal interests (avoiding the use of Section 1983 to attack ongoing custody and ensuring that prisoners present their contentions to the state judiciary) without needlessly blocking potentially legitimate federal claims.
Savory’s victory today comes at a terrible price — the extinguishment of many substantively valid constitutional claims.