When an individual has been arrested and in the process his civil rights have been violated, he has the dilemma of navigating pending criminal charges and preserving any potential civil rights claim under 42 U.S.C. § 1983.
In Heck v. Humphrey, 512 U.S. 477, 478, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), the Supreme Court confronted “the question [of] whether a state prisoner may bring a § 1983 civil rights suit for damages, and challenge the constitutionality of his conviction. The Supreme Court held that in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence 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. Pursuant to Heck, courts must dismiss a § 1983 claim that, if successful, would “necessarily imply the invalidity of [the plaintiff’s] conviction or sentence,” unless the plaintiff can demonstrate that the conviction or sentence “has already been invalidated.” In other words, if your are convicted of the underlying criminal charge, and the conviction remains valid, you can not bring a claim for violation of your civil rights under §1983 as it would contradict the validity of the conviction.
However, what happens to an individual’s potential civil rights claim if he does not plead guilty or is not convicted but instead agrees to a lesser adjudication that does not amount to a conviction in a criminal proceeding.
All counties in Pennsylvania offer Accelerated Rehabilitative Disposition ”ARD”. ARD is a pre-trial diversion program whose primary purpose is the rehabilitation of the offender and whose secondary purpose is the prompt disposition of charges, eliminating the need for costly and time-consuming trials or other court proceedings. Essentially, if you are charged with relatively minor crimes of a non-violent nature, i.e. DUI, minor drug possession, disorderly conduct, and have no previous criminal record, you are offered the opportunity to enter into the ARD Program. The ARD program is intended to encourage offenders to make a fresh start after participation in a rehabilitative program and offers them the possibility of a clean record if they successfully complete the program. if you are accepted into the ARD program your case is essentially stayed for a period of time. During the time, the court will impose certain requirements that you must complete within that time. If the requirements are completed by the end of the ARD period, the Court will then notify you that your case is eligible to be dismissed completely and erased from your criminal record.
Often individuals with potential § 1983 claims are faced with the decision of entering into the ARD program either because they may have some level responsibility or because it may be the least expensive way of dealing with the criminal charges. If given the choice of entering into the ARD program and having no criminal record upon completion or going through an expensive trial and taking a chance at being found guilty, many people will chose ARD regardless of guilt or innocence.
Previously, the Third Circuit interpreted Heck to require a § 1983 plaintiff to show the prior criminal proceeding terminated in his favor. Gilles v. Davis, 427 F.3d 197, 209 (3d Cir.2005). Applying that rule, Gilles held that Heck barred the § 1983 First Amendment claims of a plaintiff whose underlying criminal charge had been resolved through ARD, because the ARD program is not a favorable termination under Heck.
More recent decisions have question whether Gilles is still good law.
In Muhammad ex rel. J. S. vs. Abignton Tp, Police Dept., 37 F.Supp 3rd 746 (E.D. Pa, 2014), the U.S. District Court for the Eastern District of Pennsylvania questioned Gilles’ application of Heck. First, the Court found that Heck itself did not require a § 1983 plaintiff to demonstrate a favorable termination of his underlying criminal proceedings. The U.S. District Court also cited the Supreme Court decision two years after Gilles in Wallace v. Kato, 549 U.S. 384, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007), which clarified that Heck applies “only when there exists a conviction or sentence that has not been invalidated, that is to say, an outstanding criminal judgment” or an “extant conviction,” not an “anticipated future conviction.” Heck does not bar suit when there is in existence no criminal conviction that the cause of action would impugn. A § 1983 plaintiff may bring suit while criminal proceedings are ongoing, before any conviction—or other disposition has occurred. Wallace thus eliminated any possible reading of Heck as requiring “favorable termination” of the underlying criminal proceedings, because it clarified that Heck does not require termination at all. Following Wallace, the Tenth and Eleventh Circuits have found Heck inapplicable where a plaintiff’s underlying criminal proceeding was resolved through a pre-trial diversion programs. See McClish v. Nugent, 483 F.3d 1231 (11th Cir.2007); Vasquez Arroyo v. Starks, 589 F.3d 1091 (10th Cir.2009).
The Third Circuit has yet to reconsidered Gilles in light of Wallace. However, the Muhammad Court found Gilles to be more limited than it first appears. The Court found that Gilles interpreted Heck to have held that “a § 1983 malicious prosecution claim was subject to the common law requirement that the plaintiff show the prior criminal proceeding terminated in his favor applied this requirement on the basis that the plaintiff’s § 1983 claim sounded in malicious prosecution:” However, the favorable-termination requirement is not be relevant to all § 1983 claims. The Court found that the reasoning and holding of Gilles appears limited to § 1983 claims that, like malicious prosecution, hinge on the plaintiff’s innocence of the criminal charge. Where the individual does not necessarily contest probable cause for his arrest (as is possible in § 1983 claims for selective prosecution or excessive force), the claims are not barred by the Gilles’ decision since Gilles did not consider those claims and, therefore, it’s reasoning does not apply.
The U.S District Court in Muhammad found that the U.S. Supreme Court clearly held that Heck bars only those claims that would invalidate an existing conviction, and as there was no conviction (juvenile entered into a consent decree), Gilles (to the extent it remains good law) was limited to § 1983 claims that contest probable cause for an underlying criminal charge.
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