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FMG argues in favor of the Fifth Circuit retaining its precedent in Section 1983 Lawsuits 

5/21/24

By: Philip W. Savrin, P. Michael Freed, and William H. Buechner, Jr.

FMG Attorneys Phil Savrin, Michael Freed and Bill Buechner are representing Midland County, Texas in an en banc case in which the entire Fifth Circuit is considering whether a plaintiff can sue for damages for an allegedly unlawful criminal conviction without the conviction being first set aside.  

In Wilson v. Midland County, the plaintiff Erma Wilson filed a lawsuit in 2024 seeking damages under Section 1983 based on an allegation that her criminal conviction for cocaine possession in 2000 was tainted because the judge’s law clerk was also employed by the district attorney who prosecuted her case. Wilson acknowledged that the Supreme Court had held in Heck v. Humphrey that a criminal prosecution must terminate favorably before damages can be sought under Section 1983. Because she had already served her sentence, however, she maintained that Heck’s bar does not apply to her Section 1983 claim. The district court disagreed based on Fifth Circuit precedent, and although a three-judge panel of the Fifth Circuit affirmed, the panel’s opinion expressly invited the full court to overrule that precedent and allow Wilson’s case to proceed. The Fifth Circuit accepted that invitation and, after supplemental briefing, argument before all 18 judges was held on May 15, 2024. 

Midland County’s primary argument is that Wilson’s claim is precluded by Heck, which holds that a damages claim does not accrue unless and until there has been a favorable termination of the prosecution. As explained by Phil Savrin during the argument, Heck’s holding is based on the iron-clad principle that Section 1983 is a species of tort liability, such that there needs to have been an analogous claim at common law to support a cause of action under Section 1983. Under the common law, a criminal conviction could not be attacked collaterally through a civil proceeding but only through post-conviction remedies in the criminal context. Instead, the only type of damages that could be sought for an unlawful conviction was through a claim for malicious prosecution which required the prosecution to have terminated in the plaintiff’s favor. Combined with the venerable interests in finality and consistency in legal proceedings, therefore, Heck held that a Section 1983 cause of action cannot accrue unless the conviction had been set aside either within the criminal proceedings, via state or federal habeas relief or through an executive expungement (such as pardon by a governor).  

To be fair, several circuits have carved out exceptions from Heck’s holding primarily on equitable grounds where the plaintiff no longer had an avenue to challenge the conviction within the criminal context. Other circuits, however, read Heck as setting down the accrual rule without allowing for equitable variations in individual circumstances. And in the case before the Fifth Circuit, Wilson could have pursued habeas relief under Texas law or sought to have her conviction set aside by a decree from the Governor. Whether or not these avenues existed, Heck and other cases decided by the Supreme Court clearly hold that a claim for damages does not even accrue unless and until the prosecution has terminated in the plaintiff’s favor.  

At some point, the Supreme Court may consider the issue to resolve the split in the circuit courts as to Heck’s application. Whether Wilson will be the case to reach the high court remains to be seen. 

For more information, please contact Philip W. Savrin at psavrin@fmglaw.com, P. Michael Freed at michael.freed@fmglaw.com, William H. Buechner, Jr. at bbuechner@fmglaw.com, or your local FMG attorney.