En banc majority allows civil rights case to proceed against police despite guilty plea

In 1994, the Supreme Court said that you cannot bring a civil rights lawsuit against the police if the lawsuit, for all intents and purposes, would undermine the legitimacy of the criminal conviction that gave rise to the lawsuit. At its most basic level, this means that if you were fairly convicted for shoplifting, you cannot turn around and sue the police officers for false arrest arising from that incident. Of course, things get more complicated than that. The Second Circuit issued a rare en banc decision interpreting the Supreme Court's ruling in Heck v. Humphrey.

The case is Poventud v. City of New York, decided on January 14. It all started when someone attacked a cab driver in 1997. When the police presented him with a photo array, the driver implicated Marcos Poventud's brother Francisco as the bad guy. Problem was, the brother was in jail at the time and could not have committed the crime. The police then repeatedly showed the driver photos of Poventud until the driver finally implicated him in the crime. As the en banc majority says, "despite NYPD policies forbidding such behavior, the officers neither preserved nor disclosed to the Bronx District Attorney's Office the photo array in which [the driver] mistakenly identified Francisco." This evidence obviously would have helped Poventud's defense at trial and allowed him to argue that someone who did not look like Poventud committed the crime. Unaware that the cab driver had identified someone else as the attacker, the jury convicted Poventud of attempted murder and attempted robbery. But the state courts vacated the conviction because the failure to disclose violated the requirement under Brady and Rosario that the prosecution turn over evidence that might exculpate the defendant. When the case returned to criminal court, Poventud plead guilty to attempted robbery and was immediately released.

In bringing this Section 1983 claim arising from the crooked process that led to his conviction, Poventud argues that his guilty plea is not foreclosed by Heck v. Humphrey because his claim does not necessarily imply the invalidity of his outstanding conviction. In other words, the civil rights case is not inconsistent with his conviction. The en banc majority notes that civil rights cases can proceed against law enforcement even if the plaintiff was found guilty of the underlying crime. For instance, you can sue the police for excessive force even if the arrest was valid and led to a conviction. But some claims are foreclosed, such as malicious prosecution claims that require a showing that the criminal case terminated in the plaintiff's favor. If the plaintiff was found guilty or plead to something, by law there could not have been malice underlying the prosecution.

Judge Lynch, in a separate opinion, frames the issue (and provides the answer) like this:

The question before the Court is whether the rule of Heck v. Humphrey, 512 U.S. 477, 486-87 (1994), which prohibits a criminal defendant from obtaining damages for wrongful prosecution, conviction or imprisonment until and unless the conviction he complains of has been overturned, prevents the plaintiff Marcos Poventud from suing the defendants for, as he alleges, obtaining a conviction against him that led to his incarceration for almost nine years by deliberately suppressing evidence that cast doubt on the critical identification testimony of the victim. The short answer is that it does not, because the criminal judgment against him was later vacated by the state court that entered it, because the court found that the police had indeed rendered his trial unfair by suppressing exculpatory evidence.

Since Poventud is suing under Section 1983 for damages arising from the Brady violations, victory in that case would not undercut his guilty plea for attempted robbery. His lawsuit "alleges deficiencies in his 1998 trial that are entirely independent of the proceedings related to his 2006 plea," writes Judge Wesley for the en banc majority. While the 2006 conviction is a clean one, since plaintiff plead guilty after the prosecutorial misconduct was revealed, the 1998 conviction was tainted because of that misconduct, and it was that misconduct that caused plaintiff's bogus conviction and imprisonment. While plaintiff's guilty plea acknowledged his presence at the scene of the crime (which contradicted his alibi at trial), the Section 1983 claim remains viable because Brady-violation claims do not require actual innocence, and "even a guilty man is entitled to a fair trial." The panel concludes, "no element of his Section 1983 Brady claim requires Poventud to prove his absence from the scene of the crime; if it did, his claim would be Heck-barred.  Poventud's success at trial would mean only that his 1998 conviction was the product of a constitutional violation."

The Second Circuit rarely hears cases en banc. It usually does so on issues of paramount importance, over which the judges disagree. Of course, this case does not involve national security, but it implicates crime and punishment. Judge Wesley wrote the en banc decision on behalf of eight colleagues, Katzmann, Calabresi, Pooler, Sack, Hall, Lynch, Lohier and Carney. Judge Chin concurs in part. The remaining judges -- Jacobs, Cabranes, Raggi, Livingston and Droney, dissents.