Anthony Johnson v. Edward Winstead

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16-2372
ANTHONY JOHNSON,
Plaintiff-Appellant,
v.
EDWARD WINSTEAD, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 15 C 7177 — Samuel Der-Yeghiayan, Judge.
____________________
ARGUED SEPTEMBER 18, 2017 — DECIDED AUGUST 14, 2018
____________________
Before BAUER, FLAUM, and SYKES, Circuit Judges.
SYKES, Circuit Judge. On December 5, 2003, Chicago Police
Detectives James Las Cola and Edward Winstead questioned
Anthony Johnson in separate interviews about his involve-
ment in the shooting death of Brandon Baity two months
earlier. Johnson admitted to each detective that he drove the
shooter to and from the scene but claimed not to know
anything about his plan to kill Baity. State prosecutors
2 No. 16-2372
charged Johnson for Baity’s murder under an accountability
theory. He was twice tried and convicted.
Johnson moved to suppress his statements based on non-
compliance with Miranda. The trial judge denied the motion.
The case proceeded to trial in October 2007, and Detectives
Las Cola and Winstead testified about Johnson’s statements.
The jury found him guilty, but the Illinois Appellate Court
reversed based on an instructional error and remanded for a
new trial. At the second trial in March 2012, the detectives
repeated their testimony about Johnson’s statements. Once
again Johnson was convicted, but the appellate court again
reversed, this time based on insufficient evidence to support
accountability liability.
In August 2015 Johnson sued Detectives Las Cola and
Winstead for damages under 42 U.S.C. § 1983 alleging that
they violated his Fifth Amendment right against self-
incrimination by interrogating him without Miranda warn-
ings and giving testimony about his unwarned statements at
trial. The detectives moved to dismiss, arguing that the
claims were untimely because Johnson filed suit more than
two years after his statements were introduced at trial and
accrual was not deferred under Heck v. Humphrey, 512 U.S.
477 (1994). The district judge agreed and dismissed the
claims.
We reverse in part. Heck blocks a § 1983 claim that neces-
sarily implies the invalidity of a criminal conviction unless
the plaintiff can show that the conviction has already been
invalidated. As a corollary to that rule, if a claim is Heck-
barred, accrual is deferred until the conviction is overturned.
An officer’s failure to give Miranda warnings is not itself a
constitutional violation; rather, a Fifth Amendment violation
No. 16-2372 3
occurs when an accused’s unlawfully obtained confession is
introduced as evidence to convict him in a criminal case.
Johnson seeks damages arising from the admission of his
(allegedly) unwarned statements at trial, resulting in two
wrongful convictions. Claims of this kind necessarily imply
the invalidity of the convictions, so Heck’s rule of deferred
accrual applies.
Even so, to the extent Johnson seeks damages stemming
from the first conviction, the claims are time-barred. That
conviction was reversed in 2010, starting the two-year
limitations clock. So the suit is untimely as to those claims.
But the claims for alleged Fifth Amendment violations in the
second trial are timely. That conviction was reversed in 2014,
and Johnson sued less than a year later.
I. Background
Johnson’s criminal case has a lengthy factual and proce-
dural history. We limit our account to the portions of the
story that are necessary to understand his § 1983 claims
against these two detectives. We take the background from
the operative complaint and the state appellate court’s two
opinions in the criminal case.
Early in the morning on October 1, 2003, Brandon Baity
was sitting in a car parked near the intersection of Emerald
Avenue and 69th Street on the south side of Chicago when a
gray Pontiac drove by and stopped in the middle of the
street. A man emerged from the backseat, approached Baity’s
car, drew a gun, and opened fire. Baity was struck multiple
times and died.
Police launched an investigation that eventually led them
to Johnson. On December 4, 2003, Detective Robert Garza
4 No. 16-2372
called Johnson and said that he’d heard he had some infor-
mation about Baity’s murder. People v. Johnson, 23 N.E.3d
1216, 1232 (Ill. App. Ct. 2014) (second appeal). Johnson
promised to call the detective back to discuss what he knew.
That evening before the promised return call, Detective
Garza spotted Johnson on the street and asked if he would
accompany him to the police station to talk about the case.
Johnson agreed and went with Garza to the station, but the
detective didn’t question him right away. Id. In the early
morning hours of December 5, Detective Las Cola inter-
viewed Johnson about the Baity murder. Johnson acknowl-
edged that he drove the shooter to and from the scene and
described the shooting in some detail. Id. at 1233. Other
detectives questioned Johnson in separate interviews after
daybreak. Detective Winstead did so that afternoon; he
testified without contradiction—at the suppression hearing
and both trials—that he gave Johnson Miranda warnings and
that Johnson said he understood them. Id. at 1234.
Johnson told Detectives Las Cola and Winstead more or
less the same story. On the night of the murder, he was
driving around Chicago in a Pontiac Grand Am owned by a
friend. Johnson had two passengers in the car that night:
Clayton Sims and Nolan Swain. While they were driving
around, Sims recognized the driver of a cream-colored car
heading in the opposite direction. Sims told Johnson to do a
U-turn and follow the car so he could “holler at that guy.” Id.Johnson followed Sims’s instructions, and they tailed the car
to Emerald and 69th, where it finally stopped. At Sims’s
direction Johnson pulled alongside and then parked the
Pontiac slightly ahead of the other car, blocking its escape.
Id. at 1233.
No. 16-2372 5
Sims got out, approached the other vehicle, drew a gun,
and shot the driver multiple times. Johnson pulled forward
and yelled to Sims, “Come on or I’m going to leave you.” Id.
at 1234. Sims sprinted to the Pontiac and jumped in, and
they sped off. Johnson told both detectives that he had no
idea Sims was planning to shoot the driver of the other car.
He denied even knowing that Sims was armed. No charges
were issued at that time, and Johnson was released.
Several months later Chicago police arrested Swain and
the owner of the Pontiac on unrelated drug charges, and the
two men signed statements implicating Johnson in Baity’s
murder. Johnson claims the police coerced them to make and
sign these statements. On June 1, 2004, Johnson was arrested
for Baity’s murder (he was already in custody on an unrelat-
ed murder charge), and a grand jury thereafter indicted both
Sims and Johnson for the crime.
Johnson moved to suppress his statements to the detec-
tives. After a suppression hearing on March 13, 2007, the
trial judge denied the motion, ruling that Johnson was not in
custody when he spoke to Detective Las Cola and that the
other detectives (Winstead included) complied with Miranda
and used no coercive interrogation tactics. Sims then moved
to sever his case from Johnson’s. The judge granted the
motion, and the cases were tried separately—Johnson’s on a
theory that he was accountable for Sims’s actions.
Johnson’s case was tried twice, first in October 2007 and
again in March 2012. During the first trial, the prosecution
called Detectives Las Cola and Winstead to the witness stand
on October 5 and elicited testimony about the statements
Johnson made to them four years earlier. Generally speak-
ing, they testified that Johnson admitted that he tailed Baity’s
6 No. 16-2372
car at Sims’s direction, parked next to Baity’s car in a position
that blocked his escape, called Sims back to the car after the
shooting, and drove away from the scene with Sims in the
car. The detectives also testified that Johnson disclaimed any
knowledge of Sims’s plan to shoot Baity. (There was more to
the prosecution’s case, of course, but it’s not necessary to
canvass the evidence here.)
The defense called no witnesses and Johnson did not tes-
tify. The jury found him guilty. Johnson appealed, and the
Illinois Appellate Court vacated the conviction and remand-
ed for a new trial based on the judge’s failure to clarify the
law in response to a question from the jury. People v. Johnson,
No. 1–08–0233, 1 N.E.3d 119 (Ill. App. Ct. 2010) (unpublished
order). In this first appeal, Johnson did not contest the
suppression ruling or otherwise challenge the admission of
his statements at trial.
The case was retried in March 2012. On March 21 Detec-
tives Las Cola and Winstead again took the stand and testi-
fied to Johnson’s statements. This time Johnson called Sims
as a defense witness; he had been acquitted in his own trial
and thus faced no jeopardy. Sims denied that Johnson drove
him away from the murder scene and claimed that Johnson
had no idea that he was going to kill Baity. The jury found
Johnson guilty.
On December 31, 2013, the Illinois Appellate Court re-
versed the conviction based on insufficient evidence of
accountability, relying on People v. Phillips, 972 N.E.2d 724(Ill. App. Ct. 2012), overruled by People v. Fernandez, 6 N.E.3d
145 (Ill. 2014). People v. Johnson, 3 N.E.3d 477 (Ill. App. Ct.
2013). The State sought review in the Illinois Supreme Court,
which directed the appellate court to reconsider its decision
No. 16-2372 7
in light of intervening caselaw. People v. Johnson, 22 N.E.3d
1162 (mem.) (Ill. 2014). On reconsideration the appellate
court adhered to its original decision and reversed the
conviction, issuing its decision on December 31, 2014. People
v. Johnson, 23 N.E.3d at 1218. In this second round of appel-
late proceedings, Johnson again raised no challenge to the
admission of his statements at trial.
On August 15, 2015—less than a year after the second
conviction was reversed but more than two years after his
second trial—Johnson filed a sprawling civil-rights suit
under § 1983 naming the prosecutors, multiple Chicago
police officers, and the City of Chicago as defendants. He
asserted 30 federal and state claims, but this appeal is lim-
ited to two. As relevant here, Johnson alleged that Detectives
Las Cola and Winstead violated his Fifth Amendment right
against self-incrimination by interrogating him without
Miranda warnings and testifying about his unwarned state-
ments at both trials, each time resulting in a conviction.
The detectives moved to dismiss for failure to state a
claim. See FED. R. CIV. P. 12(b)(6). They argued that the claims
were time-barred because the alleged Fifth Amendment
violations accrued when Johnson’s statements were intro-
duced at trial in October 2007 and March 2012, and accrual
was not deferred under Heck. The judge agreed and dis-
missed the claims as untimely.
II. Discussion
We review a Rule 12(b)(6) dismissal de novo. Forgue v.
City of Chicago, 873 F.3d 962, 966 (7th Cir. 2017). Johnson
argues that his Fifth Amendment claims were not untimely
8 No. 16-2372
because accrual was deferred under Heck until after his
conviction was overturned a second time in 2014.
Civil-rights claims under § 1983 borrow the state-law
limitations period for analogous torts, but federal law gov-
erns accrual questions. Wallace v. Kato, 549 U.S. 384, 387–88
(2007). For § 1983 claims in Illinois, the limitations period is
two years. See Gekas v. Vasiliades, 814 F.3d 890, 894 (7th Cir.
2016) (citing 735 ILL. COMP. STAT. 5/13-202). The Supreme
Court has held that a § 1983 claim accrues when the constitu-
tional violation is complete and the plaintiff has a present
cause of action—“that is, when the plaintiff can file suit and
obtain relief.” Wallace, 549 U.S. at 388 (quotation marks
omitted). This mirrors the traditional common-law rule that
a “tort cause of action accrues, and the statute of limitation
commences to run, when the wrongful act or omission
results in damages.” Id. at 391 (quotation marks omitted).
The Fifth Amendment provides that no person “shall be
compelled in any criminal case to be a witness against
himself.” U.S. CONST. Amend. V. Miranda warnings and the
corollary exclusionary rule are “prophylactic measure[s] to
prevent violations of the right protected by the text of the
Self-Incrimination Clause—the admission into evidence in a
criminal case of confessions obtained through coercive
custodial questioning.” Chavez v. Martinez, 538 U.S. 760, 772
(2003). Accordingly, an officer’s failure to provide Miranda
warnings prior to an interrogation is not itself a Fifth
Amendment violation and “cannot be grounds for a § 1983
action.” Id. Rather, a self-incrimination violation occurs (if at
all) when a suspect’s unlawfully obtained inculpatory
statement is used against him in a criminal case. Id. at 767. It
follows that a claim for violation of the Fifth Amendment
No. 16-2372 9
right against compulsory self-incrimination is complete and
accrues when an accused’s unlawfully obtained inculpatory
statement—whether coerced or obtained without Miranda
warnings—is introduced as evidence at trial to convict him
of a criminal offense. Id.; see also Sornberger v. City of
Knoxville, 434 F.3d 1006, 1026–27 (7th Cir. 2006).
Under this general accrual rule, Johnson’s claims came
too late. The prosecution used his statements against him
(through the testimony of the detectives) at his first trial in
October 2007, resulting in conviction, and again at his sec-
ond trial in March 2012, also resulting in conviction. The
claimed constitutional torts were complete upon convic-
tion—that is, the unconstitutional acts resulted in damages
at that point—so the § 1983 claims accrued. Johnson filed
suit on August 15, 2015, almost eight years after the first trial
and more than three years after the second.
An exception exists, however, for certain claims barred
by Heck v. Humphrey. Heck holds that
in order to recover damages for allegedly un-
constitutional conviction or imprisonment, or
for other harm caused by actions whose un-
lawfulness would render a conviction or sen-
tence invalid, a § 1983 plaintiff must prove that
the conviction or sentence has been reversed
on direct appeal, expunged by executive order,
declared invalid by a state tribunal authorized
to make such determination, or called into
question by a federal court’s issuance of a writ
of habeas corpus, 28 U.S.C. § 2254. A claim for
damages bearing that relationship to a convic-
10 No. 16-2372
tion or sentence that has not been so invalidat-
ed is not cognizable under § 1983.
512 U.S. at 486–87.
Heck arrived at this rule by analogizing a § 1983 claim for
conviction-linked constitutional violations to the tort of
malicious prosecution, one element of which “is [the] termi-
nation of the prior criminal proceeding in favor of the ac-
cused.” Id. at 484. The Court also rested its holding on the
“strong judicial policy” against “permit[ting] a collateral
attack on [a] conviction through the vehicle of a civil suit.”
Id. (internal quotation marks omitted). The Court explained:
“[T]he hoary principle that civil tort actions are not appro-
priate vehicles for challenging the validity of outstanding
criminal judgments applies to § 1983 damages actions that
necessarily require the plaintiff to prove the unlawfulness of
his conviction or confinement, just as it always applied to
actions for malicious prosecution.” Id. at 486.
Accordingly, when a § 1983 plaintiff seeks damages for a
constitutional violation that led to his conviction and im-
prisonment, “the district court must consider whether a
judgment in favor of the plaintiff would necessarily imply
the invalidity of his conviction or sentence; if it would, the
complaint must be dismissed unless the plaintiff can demon-
strate that the conviction or sentence has already been
invalidated.” Id. at 487. But “if the district court determines
that the plaintiff’s action, even if successful, will not demon-
strate the invalidity of any outstanding criminal judgment
against the plaintiff, the action should be allowed to pro-
ceed.” Id.
No. 16-2372 11
The Court gave the following example of the latter kind
of claim:
For example, a suit for damages attributable to
an allegedly unreasonable search may lie even
if the challenged search produced evidence
that was introduced in a state criminal trial re-
sulting in the § 1983 plaintiff’s still-outstanding
conviction. Because of doctrines like independ-
ent source and inevitable discovery, … and es-
pecially harmless error, see Arizona v. Fulminan-
te, 499 U.S. 279, 307–308, 111 S. Ct. 1246, 1263–
1264, 113 L.Ed.2d 302 (1991), such a § 1983 ac-
tion, even if successful, would not necessarily
imply that the plaintiff’s conviction was un-
lawful.
Id. at n.7 (citation omitted). This footnote was decisive in an
Eighth Circuit case involving the application of Heck to a
Fifth Amendment self-incrimination claim much like this
one. See Simmons v. O’Brien, 77 F.3d 1093, 1095 (8th Cir.
1996). We disagree with our sister circuit’s approach, as we
explain later. For now it’s enough to say that the footnote
must be read in full, taking note of what the Court said
immediately after the passage we quoted above: “In order to
recover compensatory damages, however, the § 1983 plain-
tiff must prove not only that the search was unlawful, but
that it caused him actual, compensable injury, which, we
hold today, does not encompass the ‘injury’ of being convict-
ed and imprisoned (until his conviction has been over-
turned).” Heck, 512 U.S. at 487 n.7 (citation omitted).
Read as a whole, the point of footnote 7 comes into
sharper focus. The Court was drawing a conceptual distinc-
12 No. 16-2372
tion between constitutional wrongs that occur and are
complete outside a criminal proceeding (for example, unrea-
sonable searches) and constitutional wrongs that occur
within a criminal proceeding. Constitutional violations of the
first type are independently actionable regardless of their
impact on a conviction, which takes them outside the Heck
rule—but with the important qualifier that the scope of
recovery cannot include conviction-related injuries. 1 On the
other hand, § 1983 claims for constitutional violations of the
second type—i.e., those that occur at trial—fall within the
Heck rule. We’ll return to this point in a moment.
Heck’s rule of “deferred accrual” implements the Heck
bar. The Court was alert to the problem of the limitations
clock ticking down on a potential § 1983 claim while pro-
ceedings to overturn a conviction are ongoing. So Heck
provides a deferred-accrual rule:
Just as a cause of action for malicious prosecu-
tion does not accrue until the criminal proceed-
ings have terminated in the plaintiff’s favor, so
also a § 1983 cause of action for damages at-
tributable to an unconstitutional conviction or
sentence does not accrue until the conviction or
sentence has been invalidated.
Id. at 489–90 (citations omitted).
1 To be sure, Heck still bars a § 1983 plaintiff from recovering damages for
constitutional wrongs that occur outside a criminal proceeding to the
extent that a finding of liability “would render a conviction or sentence
invalid.” 512 U.S. at 486 & n.6 (commenting that Heck bars a civil chal-
lenge where “[i]n order to prevail in [a] § 1983 action, [plaintiff] would
have to negate an element of the offense of which he has been convict-
ed”).
No. 16-2372 13
It should be clear from this discussion that Heck can be
deployed both defensively and offensively; that tension has
sometimes produced inconsistency in application. The Heck
bar is normally raised defensively to win dismissal of a
§ 1983 claim when the plaintiff’s conviction has not been
overturned; if the bar applies, the plaintiff’s claim must be
dismissed as premature. In contrast, Heck’s rule of deferred
accrual is raised offensively to overcome a statute-of-
limitations defense. The Court’s decision in Wallace was such
a case.
Wallace concerned the accrual rule for a § 1983 claim al-
leging a Fourth Amendment violation for unlawful arrest.
549 U.S. at 387. The plaintiff was arrested without a warrant
and later charged with murder and convicted. The convic-
tion was reversed on appeal and the charges were dropped;
at that point the plaintiff brought a § 1983 suit alleging
(among other things) a Fourth Amendment violation stem-
ming from his warrantless arrest. Id. at 386–87. The Court
held that the claim accrued when the plaintiff was taken
before a magistrate and bound over for trial. Id. at 392–93.
After that point he was detained pursuant to legal process,
so the alleged Fourth Amendment violation was complete
and he was free to sue. The claim accrued, the limitations
clock began to run, and the limitations period expired before
he filed suit.
The plaintiff sought to overcome the limitations defense
by invoking Heck’s rule of deferred accrual. He maintained
that his Fourth Amendment claim “could not accrue until
the State dropped its charges against him.” Id. at 392. The
Court rejected that argument, noting that a cause of action
for violation of the right to be free from unreasonable seizure
14 No. 16-2372
is complete and present before any conviction ensues—
indeed, it is an actionable constitutional wrong independent of
any conviction that might later be obtained (with or without
the fruits of the unlawful arrest). Id. at 393–94. The Court
explained that accepting the plaintiff’s position would
require “the adoption of a principle that goes well beyond
Heck: that an action which would impugn an anticipated
future conviction cannot be brought until that conviction
occurs and is set aside.” Id. at 393. Wallace thus clarified that
Heck delays the accrual of a § 1983 claim “until the setting
aside of an extant conviction which success in that tort action
would impugn.” Id.
Relying heavily on Wallace, the detectives argue that
Heck’s rule of deferred accrual categorically does not apply
to a § 1983 claim for violation of the Fifth Amendment right
against self-incrimination. When a confession is admitted at
trial, there is no extant conviction (obviously), so the logic of
Wallace requires the same result for Fifth Amendment
claims. They argue in the alternative that a § 1983 claim for
violation of the right against self-incrimination does not, as a
categorical matter, necessarily imply the invalidity of the
plaintiff’s conviction because Fifth Amendment violations
are subject to harmless-error analysis. See Fulminante,
499 U.S. at 307–08. This argument draws heavily on Heck’s
footnote 7.
For his part, Johnson argues that Wallace is limited to
Fourth Amendment claims and should not be extended to
this context. He also resists the categorical approach pro-
posed by the detectives. He argues instead that applying
Heck to Fifth Amendment claims requires a fact-intensive,
case-by-case inquiry. Under his preferred approach, a § 1983
No. 16-2372 15
claim alleging a Fifth Amendment violation impugns a
conviction whenever the accused’s inculpatory statement
“figured prominently” in the prosecution’s case as a factual
matter. Matz v. Klotka, 769 F.3d 517, 531 (7th Cir. 2014). As
Johnson sees it, his statements formed the cornerstone of the
prosecution’s case, so Heck postponed accrual until his
second conviction was overturned.
Our cases since Wallace have sent mixed signals on the
methodological question. Some take a categorical approach
to Heck questions, either implicitly or explicitly. See, e.g.,
Moore v. Burge, 771 F.3d 444, 446 (7th Cir. 2014) (applying a
categorical approach and drawing a distinction between
claims based on “out-of-court events,” which are not Heck-
barred, and claims based on misconduct at trial, which are);
Johnson v. Dossey, 515 F.3d 778, 781–82 (7th Cir. 2008) (draw-
ing a categorical distinction for claim-accrual purposes
between Fourth Amendment false-arrest claims and Brady
claims). Others approach Heck questions on a fact-intensive,
case-by-case basis. See, e.g., Matz, 769 F.3d at 530–31 (finding
that a false-confession claim was barred under Heck because
the confession “figured prominently” in the judge’s sentenc-
ing decision); see also Hill v. Murphy, 785 F.3d 242, 246–47
(7th Cir. 2015) (analyzing in extended dicta whether Heck
would bar three not-yet-filed self-incrimination claims).
The clearest direction comes from Moore, which points
toward a categorical approach. There five plaintiffs brought
§ 1983 claims against an infamous Chicago police command-
er and his subordinates who “regularly tortured people to
extract statements.” 771 F.3d at 445. The misconduct started
in the 1970s and spanned several decades; the five plaintiffs
were convicted of serious crimes in trials that “might have
16 No. 16-2372
been influenced by the interrogations” between 1982 and
February 2009. Id. at 446. One plaintiff won a reversal of his
conviction in 1987 and was acquitted on retrial in 1989. His
claims were obviously time-barred even if Heck applied, and
the district judge properly dismissed them as untimely. The
other plaintiffs remained in prison; the judge held that their
claims were both time-barred and blocked by Heck. Id.
We began by noting the contradiction in that ruling: “[I]f
Heck governs, then these plaintiffs’ claims are too early, not
too late.” Id. And whether Heck applied depended on the
legal theory of relief. That is, we approached the Heck ques-
tion categorically based on the nature of the claim at issue.
Id.
Relying on Wallace and circuit precedent applying it, we
held that Heck does not govern “claims based on out-of-court
events, such as gathering of evidence, [which] accrue as soon
as the constitutional violation occurs.” Id. We explained that
police misconduct of this kind “does not (at least, need not)
imply the invalidity of any particular conviction.” Id. Ac-
knowledging that the Wallace line of cases dealt with claims
for violation of the Fourth Amendment’s rule against unrea-
sonable searches and seizures, we explained that “their
holdings are equally applicable to contentions that police
tortured suspects during interrogation[] because that mis-
conduct is actionable whether or not a suspect confesses[]
and whether or not any statement is used in evidence at
trial.” Id. Though the opinion does not explicitly say, this
sentence can only be understood to refer to a due-process
theory of relief. We know from Chavez that a Fifth Amend-
ment self-incrimination violation occurs when an unlawfully
obtained confession is introduced in a criminal case.
No. 16-2372 17
Moore continues with a passage that helpfully illuminates
the Heck question presented here: “To the extent that [the
four plaintiffs] may be arguing that [the] police violated
their rights by giving false testimony, or that during trial
prosecutors withheld material exculpatory evidence about
misconduct during their interrogations, Heck indeed bars
relief until a conviction is set aside.” Id. That’s because a
§ 1983 claim alleging a trial-based constitutional violation
necessarily seeks damages for the resulting conviction; to
recover, the plaintiff must prove that the constitutional
violation at trial caused his unlawful conviction. Such a
claim, if successful, necessarily conflicts with a still-valid
conviction.
Moore goes on to say that “[a]bsolute immunity for pros-
ecutors and witnesses would make it hard for these plaintiffs
to recover damages based on the conduct of the trials even if
their convictions should be vacated some day.” Id. (citations
omitted). That explained “why all five plaintiffs stress the
injuries they say they suffered at the hands of the police
before judicial proceedings began.” Id. “Those claims,” we
concluded, “are unaffected by Heck and are outside the
scope of anyone’s absolute immunity.” Id.
Importantly, the analysis in Moore was categorical, based
on the theory of relief; we did not undertake a factual evalu-
ation of each plaintiff’s criminal case to determine what role
the constitutionally tainted trial evidence played in his
conviction. That makes sense in this context. Applying Heck
categorically is sound as a matter of limitations law where
the need for clear rules is especially acute.
Moore points the way toward greater consistency in eval-
uating Heck questions. Applying it here, we hold that Heck’s
18 No. 16-2372
rule of deferred accrual applies to § 1983 claims for violation
of the Fifth Amendment right against self-incrimination. A
claim of this kind seeks a civil remedy for a trial-based
constitutional violation that results in wrongful conviction
and imprisonment. Such a claim, if successful, necessarily
implies the invalidity of the conviction and under Heck is
neither cognizable nor accrues until the conviction has been
overturned.
As we’ve noted, the Eighth Circuit reached the opposite
conclusion in Simmons v. O’Brien, holding that Heck categori-
cally does not apply to a § 1983 claim for violation of the
Fifth Amendment right against self-incrimination. 77 F.3d at
1095. More specifically, in Simmons the plaintiff was convict-
ed of murder based in part on his videotaped confession,
and his conviction was upheld on direct appeal and post-
conviction review. He then brought a § 1983 claim alleging
that his confession was obtained without Miranda warnings
and while he was under physical and mental duress. The
district court thought the claim was premature under Heck
“until a habeas court ruled on the validity of [the] convic-
tion.” Id. at 1094. The Eighth Circuit disagreed. Leaning
heavily on the reference to harmless-error doctrine in Heck’s
footnote 7, the court held: “Because harmless error analysis
is applicable to the admission at trial of coerced confessions,
judgment in favor of [the plaintiff] on this § 1983 action
challenging his confession will not necessarily demonstrate
the invalidity of his conviction.” Id. at 1095.
This misreads footnote 7 for the reasons we’ve already
explained. More fundamentally, the Eighth Circuit’s holding
is irreconcilable with Heck itself. The claims at issue there
included a challenge to the admission at trial of an unlawful
No. 16-2372 19
voice identification. Heck, 512 U.S. at 479. A constitutional
error in admitting identification evidence at trial is subject to
harmless-error review. See United States v. Sanders, 708 F.3d
976, 988 (7th Cir. 2013). If the Eighth Circuit is right, Heck
would have come out differently, at least as to the unlawful-
identification claim. Finally, the Eighth Circuit’s approach
cannot be reconciled with our decision in Moore, which held
that claims for trial-based constitutional violations are
indeed Heck-barred until the conviction is overturned. For
these reasons, we decline to follow Simmons. 2
Our holding that Heck applies does not mean that all of
Johnson’s Fifth Amendment claims may proceed. To the
extent that Johnson seeks damages associated with alleged
Fifth Amendment violations at his first trial in 2007, the
claims are indeed time-barred. That conviction was reversed
in 2010, and the two-year time clock began to run then. The
limitations period expired long before he filed this suit in
2015. The claims arising from the second trial in 2012 are
timely, however. That conviction was reversed in 2014, and
Johnson filed suit less than a year later.
As an alternative ground for affirmance, the detectives
invoke the absolute immunity that shields trial witnesses.
Rehberg v. Paulk, 566 U.S. 356, 367 (2012) (citing Briscoe v.
LaHue, 460 U.S. 325, 332–33 (1983)). But they did not raise the
immunity defense in their motion to dismiss. “A prevailing
party is entitled to defend its judgment on any ground
preserved in the district court.” Richardson v. Koch Law Firm,
P.C., 768 F.3d 732, 734 (7th Cir. 2014). Because immunity was
2 Because this opinion creates a circuit conflict, it was circulated to all
active judges. See 7TH CIR. R. 40(e). None favored a hearing en banc.
20 No. 16-2372
not preserved as an alternative ground for dismissal, the
issue remains open on remand, along with other affirmative
defenses (preclusion comes to mind). Finally, the detectives
argue that money damages are not available for a Miranda
violation. This argument, too, is unpreserved.
For the foregoing reasons, we REVERSE the judgment in
part and REMAND for further proceedings consistent with
this opinion.