Olivier v. City of Brandon, MS

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United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
FILED
No. 22-60566 August 25, 2023
____________
Lyle W. Cayce
Gabriel Olivier, Clerk
Plaintiff—Appellant,
versus
City of Brandon, Mississippi; William A. Thompson,
individually and in his official capacity as Chief of Police for Brandon Police
Department,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:21-CV-636
______________________________
Before Wiener, Graves, and Douglas, Circuit Judges.
Dana M. Douglas, Circuit Judge:*
In Heck v. Humphrey, 512 U.S. 477 (1994), the Supreme Court
established a bar against 42 U.S.C. § 1983 claims that necessarily imply the
invalidity of the plaintiff’s criminal conviction. The question presented is
whether Heck also precludes injunctive relief against future enforcement of
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*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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an allegedly unconstitutional ordinance. Under the unusual circumstances
here, we conclude that it does.
Gabriel Olivier pleaded guilty to violating a local ordinance that
redirected protests around an amphitheater to a designated area during live
events. He brought this § 1983 action, seeking to recover damages and to
enjoin the ordinance under the First and Fourteenth Amendments. In Clarke
v. Stalder, 154 F.3d 186 (5th Cir. 1998) (en banc), we extended Heck to bar
such relief.
Yet Olivier does not directly challenge Clarke. Instead, he seeks to
distinguish it on grounds that we have long rejected. He thus leaves us with
two options: either follow Clarke or create an extraordinary exception to our
precedent. Choosing the former, we AFFIRM the district court’s dismissal
of Olivier’s claims.
I.
Olivier is an evangelical Christian who often preaches in public. He
seeks to “impart[] . . . [the] message that everyone sins and deserves eternal
damnation but [for] Jesus Christ.” He also protests “sins he believes are
relevant for the community,” like abortion, and what he describes as
“whore[ness],” “drunk[enness],” and “fornicat[ion].” Olivier v. City of
Brandon, No. 3:21-cv-00636-HTW-LGI, 2022 U.S. Dist. LEXIS 196233, at
*7 (S.D. Miss. Sept. 23, 2022). To spread his views, Olivier uses signs and
loudspeakers, and frequents high-traffic areas with many pedestrians.
One such area is the Brandon Amphitheater. Owned by the City of
Brandon, Mississippi, the Amphitheater hosts live events for crowds of up to
8,500 people. Olivier alleges that, between 2018 and 2019, he visited the
Amphitheater five or six times to evangelize.
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In 2019, the City passed an ordinance (Section 50-45 of the Brandon
Code of Ordinances—“the Ordinance”) to reduce traffic around the
Amphitheater during live events. The Ordinance redirects “protests” and
“demonstrations” to a designated protest area three hours before an event,
and one hour after. It also bans the use of loudspeakers that are “clearly
audible more than 100 feet” from the protest area and requires all signs to be
handheld. The Ordinance states that these restrictions apply “regardless of
the content and/or expression” of the protest.
In May 2021, Olivier visited the Amphitheater with friends and family
during a live concert to evangelize. He was stopped by the City’s chief of
police, William Thompson, who handed him a copy of the Ordinance and
ordered him to go to the protest area. Though Olivier first complied, he later
returned, believing the protest area was too isolated for attendees to hear his
messages. He was then charged with violating the Ordinance.
Olivier pleaded nolo contendere (no contest) in municipal court. He
received a suspended sentence of ten days’ imprisonment and a fine. Olivier
paid the fine but did not appeal his conviction.
Olivier then sued the City and Chief Thompson under § 1983,
claiming the Ordinance violated the First and Fourteenth Amendments. He
sought damages and also moved for a preliminary and permanent injunction
to enjoin the City from enforcing the Ordinance. Defendants then moved for
judgment on the pleadings as well as summary judgment, arguing that
Olivier’s claims were barred by Heck. The district court agreed with
defendants, denied Olivier’s request for injunctive relief, and dismissed his
claims with prejudice.
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Olivier now appeals on a single, narrow issue: whether the district
court erred in barring his request for injunctive relief under Heck.1
II.
Before addressing the merits, we begin with some housekeeping.
A.
First is the standard of review. The district court never stated which
motion it was granting. It did, however, refer to matters beyond the
pleadings. We thus construe the court’s decision as a grant of summary
judgment. See Reynolds v. New Orleans City, 272 F. App’x 331, 335 (5th Cir.
2008) (construing the district court’s decision as a grant of summary
judgment in a similar situation); cf. Fed. R. Civ. P. 12(d) (“If, on a motion
[for judgment on the pleadings], matters outside the pleadings are . . . not
excluded . . . the motion must be treated as one for summary judgment”).
Our review is de novo. See Newbold v. Operator, L.L.C., 65 F.4th 175,
178 (5th Cir. 2023) (citation omitted). Summary judgment is appropriate if
there is “no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a). We will draw “all
reasonable inferences” in the non-movant’s favor, Newbold, 65 F.4th at 178
(citation omitted), and may affirm “on any ground raised below and
supported by the record.” Ballard v. Devon Energy Prod. Co., L.P., 678 F.3d
360, 365 (5th Cir. 2012) (citation omitted).
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1
Olivier has also abandoned his claims against Chief Thompson.
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B.
Next are defendants’ half-hearted assertions that Olivier forfeited his
chance to oppose the application of Heck to his request for injunctive relief.
He did not.
First, defendants claim that Olivier waived his challenge because he
raised it in a sur-reply before the district court. We disagree. Olivier raised
this objection in his initial opposition, albeit in a footnote. Whatever defects
there may have been in this presentation were harmless because defendants
were able to respond. See Redhawk Holdings Corp. v. Schrieber, 836 F. App’x
232, 235 (5th Cir. 2020) (holding that district courts may “consider
arguments . . . raised for the first time in a reply brief” if it provides the
opposing party “an adequate opportunity to respond.”). The district court
also succinctly recited the parties’ arguments and ruled on this issue in its
decision. See Olivier, 2022 U.S. Dist. LEXIS 196233, at *21. “An argument
is not forfeited on appeal if the argument on the issue before the district court
was sufficient to permit the district court to rule on it.” CEATS, Inc. v.
TicketNetwork, Inc., 71 F.4th 314, 325 (5th Cir. 2023) (cleaned up). That is
what happened here.2
Defendants also say that Olivier forfeited his objection to Heck
because he failed to properly brief it on appeal. Their theory goes like this:
Heck focuses on claims not relief. But in his briefs, Olivier focuses mostly on
whether Heck bars injunctive relief, rather than his underlying claims. So he
waived the issue on appeal—or so defendants allege.
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2
Olivier’s case thus differs from others where the parties waived their claims by
failing to give the trial court “a fair opportunity to consider the[m].” Harper v. Lumpkin,
64 F.4th 684, 691 (5th Cir. 2023) (citation omitted).
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This distinction, however, is wordplay and finds no support in our
Heck jurisprudence. Indeed, this court has used “claim” and “relief”
interchangeably in its opinions. See McCollum v. Lewis, 852 F. App’x 117, 121
(5th Cir. 2021) (“Heck bars most of McCollum’s claims.”) (emphasis added);
White v. Fox, 294 F. App’x 955, 960 (5th Cir. 2008) (“Heck . . . bar[s] these
avenues of relief”) (emphasis added). Olivier did not forfeit his challenge.
C.
One last item of housekeeping remains. Defendants contend that
Olivier’s claims are not ripe for disposition. Olivier’s request for injunctive
relief is a pre-enforcement challenge. Such challenges are not ripe if the
issues are “abstract or hypothetical.” Roark & Hardee LP v. City of Austin,
522 F.3d 533, 545 (5th Cir. 2008) (citation omitted). “[K]ey considerations”
include the “fitness of the issues for judicial decision and the hardship to the
parties of withholding court consideration.” Id. (citation omitted). A case
is generally ripe if the questions are “purely legal ones,” and not if “further
factual development is required.” Id.; see Feds for Med. Freedom v. Biden, 63
F.4th 366, 386 (5th Cir. 2023). To demonstrate ripeness, a plaintiff must also
show “some hardship.” Roark & Hardee LP, 522 F.3d at 545 (citation
omitted).
Olivier easily makes both showings. His challenge is a purely legal
one: whether Heck bars a claim for injunctive relief that disputes the
constitutionality of a local ordinance. See Feds for Med. Freedom, 63 F.4th at
386. Further factual development is not needed to address this claim. Olivier
also states that he can no longer preach at the Amphitheater because of the
Ordinance. “[W]here a regulation requires an immediate and significant
change in the plaintiffs’ conduct of their affairs with serious penalties
attached to noncompliance, hardship has been demonstrated.” Roark &
Hardee LP, 522 F.3d at 545 (quoting Suitum v. Tahoe Reg’l Plan. Agency, 520
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U.S. 725, 743-44 (1997)). That is precisely what Olivier alleges; his claims
are thus ripe for disposition. We move on to the merits.
III.
Heck commands that “a convicted criminal may not bring a claim
under . . . § 1983, if success on that claim would necessarily imply the
invalidity of a prior conviction.” Aucoin v. Cupil, 958 F.3d 379, 382 (5th Cir.
2020) (citation omitted). This prohibition continues until the conviction is
“reversed,” “expunged,” or “declared invalid.” Heck, 512 U.S. at 487. The
Heck bar seeks to ensure “finality and consistency” of prior criminal
proceedings and to prevent “duplicative litigation and the potential for
conflicting judgments.” Aucoin, 958 F.3d at 380, 382.
Though a classic example of a Heck-barred claim is one for money
damages, courts have expanded Heck to also bar declaratory and injunctive
relief. See Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005); Clarke, 154 F.3d
at 190-91.3 Thus:
[A] state prisoner’s § 1983 action is barred (absent prior
invalidation)—no matter the relief sought (damages or
equitable relief), no matter the target of the prisoner’s suit
(state conduct leading to conviction or internal prison
proceedings)—if success in that action would necessarily
demonstrate the invalidity of confinement or its duration.
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3
See also VanBuren v. Walker, 841 F. App’x 715, 716 (5th Cir. 2021) (“Heck
prevents [a plaintiff] from raising any constitutional claim or seeking any injunctive relief
that would result in invalidating, or implying the invalidity of, a conviction or sentence that
has not otherwise been reversed, expunged, or called into question.” (citations omitted));
Lavergne v. Clause, 591 F. App’x 272, 273 (5th Cir. 2015) (“Heck applies to [] claims for
declaratory and injunctive relief as well as damages under § 1983.” (citation omitted)).
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Wilkinson, 544 U.S. at 81-82 (emphasis added in bold); see Nelson v. Campbell,
541 U.S. 637, 647 (2004).
Olivier’s plea of nolo contendere is a conviction that implicates Heck.
See Claunch v. Williams, 508 F. App’x 358, 359 n.2 (5th Cir. 2013) (“[A] plea
of nolo contendere. . . . is enough . . . to trigger Heck.”); Kastner v. Texas, 332
F. App’x 980, 981 (5th Cir. 2009) (same); see also Miss. Code Ann. § 21-
23-7(8) (“Upon the entry of a plea of nolo contendere[,] the court shall convict
the defendant”) (emphasis added). To prevail, he must therefore show that
his request to enjoin the ordinance would not “necessarily” invalidate his
conviction. Wilkinson, 544 U.S. at 82.
Olivier insists that he meets this burden. According to him, the
injunction he seeks is entirely prospective; it concerns “the constitutionality
of the ordinance and its application to his religious speech in the future.”
Defendants disagree, comparing Olivier’s case to Clarke, an en banc decision
of this court. We agree with defendants.
In Clarke, a prison inmate challenged the constitutionality of a prison
rule that banned certain threats against prison employees. Clarke, 154 F.3d
at 187-88. He sought damages and “prospective injunctive relief from . . .
the rule on grounds of facial unconstitutionality” under the First
Amendment. Id. at 188. The en banc court held that Heck barred both forms
of relief. In so doing, the Clarke court distinguished between prospective
relief that would “merely enhance eligibility for earlier release” and those
that would “create entitlement to such relief.” Id. at 190 (citation omitted).
The inmate’s request for injunctive relief implicated the latter, the court
reasoned, because a favorable ruling “would be binding on state courts,”
which “could only conclude that [the inmate] had been convicted of violating
an unconstitutional rule.” Id. (citing cases). Thus, because the inmate’s
conviction had yet to be “reversed, expunged or otherwise declared invalid,”
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his facial challenge to the constitutionality of the prison rule was “not []
cognizable in a § 1983 action.” Id. at 191.
Clarke squarely applies to Olivier’s case. As in Clarke, Olivier also
seeks to enjoin a state law under which he was convicted. See id. at 190. He
likewise requests “prospective injunctive relief . . . on grounds of facial
unconstitutionality.” Id. at 188. Under Clarke, such relief “necessarily
implies” the invalidity of the conviction and is barred under Heck. Id. at 189.
It also goes without saying that, as an en banc decision, Clarke is binding. See
Veasey v. Abbott, 13 F.4th 362, 365 (5th Cir. 2021); Coastal Prod. Servs. v.
Hudson, 555 F.3d 426, 431 n.10 (5th Cir. 2009).
Olivier’s attempts to distinguish Clarke do not persuade us. For
starters, he argues that the only relief he seeks is to enjoin the prospective
enforcement of the Ordinance, not damages. Not so: Olivier sought
compensatory and nominal damages at the district court. And either way,
Clarke would still bar his challenge. Damages notwithstanding, Clarke makes
clear that Heck forbids injunctive relief declaring a state law of conviction as
“facially unconstitutional.” Clarke, 154 F.3d at 190. Simply put, a
“[c]onviction based on an unconstitutional rule is the sort of ‘obvious defect’
that, when established, results in nullification of the conviction.” Id.(citations omitted).
True, unlike the inmate in Clarke, Olivier is not serving his sentence.
But in this circuit, Heck applies even if a § 1983 plaintiff is “no longer in
custody” and “thus [cannot] file a habeas petition.” See Randell v. Johnson,
227 F.3d 300, 301 (5th Cir. 2000).
Most of the cases Olivier cites do not rebut Clarke. He quotes Aucoin,
for example, and says that there is “no Heck bar if the alleged violation occurs
‘after’ the cessation of the plaintiff’s misconduct that gave rise to his prior
conviction.” Yet Aucoin was an excessive force case that had nothing to do
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with injunctive relief; nor did the plaintiff challenge the constitutionality of
the underlying statute of conviction. See Aucoin, 958 F.3d at 382-83. Olivier
also relies on Edwards v. Balisok, 520 U.S. 641, 648 (1997), where the
Supreme Court said, in passing, that “[o]rdinarily, a prayer for [certain]
prospective relief” will not undermine Heck. In context, however, the Court
was referring to the specific relief sought in that case: an injunction
“requiring prison officials to date-stamp witness statements.” Id. at 648.
And as Clarke recognized, the injunction in Edwards had only an “indirect
impact” on the inmate’s conviction. Clarke, 154 F.3d at 189.
Olivier finds stronger support in Wilkinson, 544 U.S. 74 and Skinner
v. Switzer, 562 U.S. 521 (2011). In Wilkinson, several inmates challenged the
constitutionality of their parole-hearing procedures and sought declaratory
and injunctive relief compelling officials to apply different rules. Wilkinson,
544 U.S. at 76-77. Heck did not preclude such relief because the inmates’
success would merely mean “new [parole] eligibility review” or “a new
parole hearing,” neither of which “necessarily spell[ed] immediate or
speedier release,” or implied the invalidity of their sentences. Id. at 81.
Likewise in Skinner, the Supreme Court permitted an inmate to seek an
injunction compelling DNA testing because “[s]uccess . . . gains for the
prisoner only access to [] DNA evidence, which may prove exculpatory,
inculpatory, or inconclusive.” Skinner, 562 U.S. at 525 (emphasis added).
That was so even if the “ultimate aim” of the injunction may be to “use the
test results as a platform for attacking his conviction.” Id. at 534. These
cases suggest that the Supreme Court sees Heck as a bar to injunctive relief
in only the narrowest of circumstances. Cf. Nelson, 541 U.S. at 647 (“[W]e
were careful in Heck to stress the importance of the term ‘necessarily.’”).
There is admittedly friction between Clarke and these decisions. On
one hand, Skinner suggests that an injunction would not “necessarily” imply
the invalidity of a conviction unless that outcome is “inevitable.” Skinner,
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562 U.S. at 534. Yet enjoining a law as unconstitutional may not “inevitably”
lead to the invalidity of the underlying conviction; preliminary injunctions
“merely [] preserve the relative positions of the parties until a trial on the
merits can be held.” Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981).
And the district court may very well reach a different result after trial;
“findings of fact and conclusions of law made by a court granting a
preliminary injunction are not binding at trial on the merits.” Id. (citations
omitted). Such findings also would not bind Mississippi state courts, which
have the ultimate say over Olivier’s conviction. See, e.g., Stewart v. Guar.
Bank & Trust Co., 596 So.2d 870, 873 (Miss. 1992) (explaining that an
“interlocutory injunction” is not an “adjudication on the merits” and does
not have res judicata effect). This court never addressed that issue in Clarke,
relying instead on the preclusive effect that federal judgments and findings on
the merits have on state courts.4 See Clarke, 154 F.3d at 190.
But on the other hand, the injunctive relief in Wilkinson (parole
review) and Skinner (DNA testing) resemble the one in Edwards (date-
stamping): they concern matters that are entirely separate from the
underlying conviction. See Wilkinson, 544 U.S. at 82 (explaining that the
plaintiffs could proceed with their request for injunctive relief because they
only “render invalid [] state procedures” for parole (emphasis added)).
Indeed, a preliminary injunction will only issue if the proponent shows a
likelihood of success that the statute is unconstitutional. See Rest. Law Ctr.
v. United States DOL, 66 F.4th 593, 597 (5th Cir. 2023). Which is why courts
describe this relief as a rare and “extraordinary and drastic remedy.”
Anibowei v. Morgan, 70 F.4th 898, 902 (5th Cir. 2023) (citation omitted).
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4
The dissent in Clarke raised some of these concerns. See Clarke, 154 F.3d at 191(Garza, J., dissenting) (explaining that the injunction in Clarke would, at best, “possibly
imply” the invalidity of the conviction).
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That is different from a challenge to the constitutionality of the very law that
led to plaintiff’s conviction, as in Clarke. Again, Clarke distinguished
Edwards on this very basis: it found the relief sought in Edwards had “only an
indirect impact on the validity of [the] prisoner’s conviction.” Clarke, 154
F.3d at 189 (citations omitted); see also Martin v. City of Boise, 920 F.3d 584,
619 (9th Cir. 2019) (Owens, J., dissenting) (explaining that the injunctive
relief in Edwards concerned “procedural violations” and that constitutional
challenges, no matter how prospective, are “substantive”).
Still, we need not bridge the gap between Clarke and these decisions
today. Olivier does not claim that Clarke is no longer good law; he only seeks
to distinguish it. We have already rejected those efforts above.
Finally, Olivier urges us to carve out an independent exception to
Heck for prospective challenges like his. That is what the Ninth Circuit did
in Martin when it permitted several homeless individuals to enjoin two
ordinances that banned camping and lodging on public property. 920 F.3d at
603-04. In so doing, the Martin court reasoned that Heck ensured the
“finality and validity of previous convictions”—not to “insulate future
prosecutions from challenge.” Id. at 611. But again, that brings us right back
to Clarke, which Olivier does not seek to overturn. See 154 F.3d at 189; see
also Martin, 920 F.3d at 619 (Owens, J., dissenting) (viewing the challenge in
Martin as a “substantive” attack that “impl[ied] the invalidity” of the
convictions). And because we have rejected Olivier’s invitation to
distinguish Clarke, we likewise leave this question for another day.
All this leads to one conclusion: affirmance. But we will make one
modification to the judgment. The district court denied Olivier’s claims
“with prejudice.” That mandate, however, would bar Olivier from pursuing
his claims even if his conviction were later “reversed,” “expunged,” or
“declared invalid.” Heck, 512 U.S. at 487. To avoid this outcome, we have
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explained that the “preferred” language under Heck is to dismiss the claims
“with prejudice to their being asserted again until the Heck conditions are met.”
Deleon v. City of Corpus Christi, 488 F.3d 649, 657 (5th Cir. 2007) (citation
omitted) (emphasis added). So we will modify the judgment accordingly. See
id. (modifying the judgment under similar circumstances); see Johnson v.
McElveen, 101 F.3d 423, 424 (5th Cir. 1996) (same).
IV.
Under Clarke, Olivier’s request to enjoin the enforcement of the
Ordinance as unconstitutional would “necessarily” imply the invalidity of
his conviction. Clarke, 154 F.3d at 188. Thus, the Heck bar applies. We
therefore AFFIRM the judgment as MODIFIED.
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