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Taylor v. County of Pima, AZ, Amicus Brief, Post-Incarceration Rights, 2019

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No. 17-16980
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
___________________________
LOUIS TAYLOR, A SINGLE MAN,
Plaintiff-Appellee,
v.
COUNTY OF PIMA, A BODY POLITIC, AND
THE CITY OF TUCSON, A BODY POLITIC,
Defendants-Appellants.
___________________________
Appeal from the United States District Court
for the District of Arizona
Case No. 4:15-CV-00152-TUC-RM
Honorable Rosemary Marquez, Presiding
BRIEF OF NATIONAL ASSOCIATION OF CRIMINAL
DEFENSE LAWYERS, THE INNOCENCE PROJECT,
CALIFORNIA ATTORNEYS FOR CRIMINAL JUSTICE, THE
NATIONAL POLICE ACCOUNTABILITY PROJECT, CENTER
ON THE ADMINISTRATION OF CRIMINAL LAW AT NYU
SCHOOL OF LAW, HUMAN RIGHTS DEFENSE CENTER, AND
NEW MEXICO CRIMINAL DEFENSE LAWYERS
ASSOCIATION AS AMICI CURIAE IN SUPPORT OF
PLANTIFF-APPELLEE
Caitlin S. Weisberg
Donald M. Falk
Kaye, McLane, Bednarski
dfalk@mayerbrown.com
& Litt, LLP
Mayer Brown LLP
975 East Green Street
2 Palo Alto Square, Ste. 300
Pasadena, California 91106
3000 El Camino Real
tel: 626-844-7660
Palo Alto, CA 94306
cweisberg@kmbllaw.com
(650) 331-2000
Counsel for National Police
Counsel for Amici Curiae
Accountability Project
[Additional counsel for the amici are listed on the following page,]

Stephen K. Dunkle
Courtney M. Oliva
Sanger Swysen & Dunkle
Executive Director
125 E. De La Guerra Street, Suite 102 Center on the Administration
Santa Barbara, CA 93101
of Criminal Law at NYU School
805-962-4887
of Law
Sdunkle@sangerswysen.com
139 MacDougal Streer
New York, NY 10012
John T. Philipsborn
(212) 998-6612
Law Offices of J.T. Philipsborn
courtney.oliva@nyu.edu
Civic Center Building
507 Polk Street, Ste.350
Sabarish P. Neelakanta
San Francisco, CA 94102
General Counsel &
(415) 771-3801
Litigation Director
Jphilipsbo@aol.com
Human Rights Defense Center
Counsel for California Attorneys for
P.O. Box 1151
Criminal Justice
Lake Worth, FL 33460
(561) 360-2523
Jerry Todd Wertheim
sneelakanta@humanrightscenter.org
Jones, Snead, Wertheim
& Clifford, P.A.
Vanessa Potkin
P.O. Box 2228
Director, Post-Conviction Santa
Fe, NM 87504-2228Litigation
The Innocence Project
(505) 982-0011
40 Worth Street, Suite 701
todd@thejonesfirm.com
New York, NY 10013
212-364-5359
Counsel for Amicus Curiae New Mexico vpotkin@innocenceproject.org
Criminal Defense Lawyers Association

2

CORPORATE DISCLOSURE STATEMENT
The National Association of Criminal Defense Lawyers does not
have a parent corporation or issue publicly traded securities.
The National Police Accountability Project is a nonprofit
organization that has no parent company and does not issue stock.
California Attorneys for Criminal Justice does not have a parent
corporation or issue publicly traded securities.
The Center on the Administration of Criminal Law at NYU School
of Law does not have a parent corporation or issue publicly traded
securities.
The Human Rights Defense Center does not have a parent
corporation or issue publicly traded securities.
The New Mexico Criminal Defense Lawyers Association has no
parent corporation and issues no publicly traded securities.
The Innocence Project has no parent corporation and issues no
publicly traded securities.
/s/ Donald M. Falk

i

TABLE OF CONTENTS
Page
CORPORATE DISCLOSURE STATEMENT ........................................... i
TABLE OF CONTENTS ...........................................................................ii
TABLE OF AUTHORITIES .................................................................... iii
INTEREST OF THE AMICUS CURIAE .................................................. 1
INTRODUCTION AND SUMMARY OF ARGUMENT ........................... 7
ARGUMENT ............................................................................................. 8
A. Rehearing Is Warranted to Preclude Governments from
Immunizing Themselves from Liability by Conditioning Release
from Wrongful Incarceration on a No-Contest Plea. ....................... 9
1.

The inherently coercive no-contest plea required as a
condition of release from wrongful imprisonment should not
be allowed to confer immunity. ................................................. 9

2.

Heck does not apply to lawsuits by former prisoners who have
completed their sentences and cannot seek a writ of habeas
corpus. ..................................................................................... 15

B. The Panel Majority’s Causation Holding Should Be Reheard to
Prevent Significant and Deleterious Practical Effects. ................ 16
C. Restricting Heck to its Proper Scope Will Not Unduly Burden
Governments, but Would Serve the Interests of Justice.............. 18
CONCLUSION ....................................................................................... 20

ii

TABLE OF AUTHORITIES
Cases

Page(s)

Berger v. United States,
295 U.S. 78 (1935) ............................................................................... 12
Coughlen v. Coots,
5 F.3d 970 (6th Cir.1993) .................................................................... 11
CSX Transp., Inc. v. McBride,
564 U.S. 685 (2011) ............................................................................. 17
Davies v. Grossmont Union High School Dist.,
930 F.2d 1390 (9th Cir. 1991) ............................................................. 11
Heck v. Humphrey,
512 U.S. 477 (1994) ..................................................................... passim
Lynch v. City of Alhambra,
880 F.2d 1122 (9th Cir. 1989) ............................................................. 11
Schwirse v. Director, OWCP.,
736 F.3d 1165 (9th Cir. 2013) ............................................................. 17
Town of Newton v. Rumery,
480 U.S. 386 (1987) ................................................................. 10, 11, 12
United States v. Chapman,
524 F.3d 1073 (9th Cir. 2008) ............................................................. 12
Wyatt v. Cole,
504 U.S. 158 (1992) ............................................................................. 13
Statutes
28 U.S.C. § 2254 ...................................................................................... 15
42 U.S.C. § 1983 .............................................................................. passim

iii

TABLE OF AUTHORITIES - Continued

Other Authorities
H.L.A. Hart & T. Honoré, Causation in the Law (2d ed. 1985) .................. 17

Innocence Project, Michael Green,
https://tinyurl.com/y7ofqmap ............................................................. 13
Robert H. Jackson, The Federal Prosecutor,
24 Am. Jud. Soc’y 18 (1940) ................................................................. 12
NAT’L REG. EXONERATIONS, EXONERATIONS IN THE UNITED
STATES, https://tinyurl.com/jo85y77 ................................................... 14
Prosser and Keeton on Law of Torts §§ 41-42 (5th ed. 1984) ...................... 17

iv

INTEREST OF THE AMICUS CURIAE
The National Association of Criminal Defense Lawyers (NACDL),
founded in 1958, is a nonprofit voluntary professional bar association
that works on behalf of criminal defense attorneys to ensure justice and
due process for persons accused of crime and other misconduct. NACDL
has thousands of members nationwide and when its affiliates’ members
are included, total membership amounts to approximately 40,000
attorneys. NACDL’s members include public defenders, criminal defense
attorneys, law professors, U.S. military defense counsel, and even judges.
NACDL strives to preserve fairness and justice within the
American criminal justice system. To advance that purpose, NACDL
files numerous amicus briefs each year addressing issues of importance
to criminal defendants, criminal defense lawyers, and the entire criminal
justice system.
California Attorneys for Criminal Justice (CACJ) is the second
largest organization of criminal defense lawyers in California, and the
largest statewide affiliate of NACDL. CACJ has more than 1,500
members, most of whom are lawyers who practice law in the federal and
state courts throughout California. CACJ’s members include public

1

defenders as well as lawyers in private practice. Among CACJ’s stated
purposes is the defense of individuals’ rights under the U.S. and
California Constitutions. Throughout its more than 35 years of existence,
CACJ has appeared as an amicus curiae in matters of importance to its
membership, including before the United States Supreme Court, the
California Supreme Court and before several federal courts of appeals,
including this one.
The Innocence Project provides pro bono legal services and other
resources to indigent prisoners whose innocence may be established
through post-conviction DNA testing. To date, the Innocence Project and
affiliated organizations have used DNA evidence to exonerate 364
individuals wrongfully convicted of crimes they did not commit.

In

almost half of those cases, the work of the Innocence Project also helped
to identify the real perpetrators of the crimes.
In addition to post-conviction litigation, the Innocence Project
works to prevent future miscarriages of justice by identifying the causes
of wrongful convictions, participating as amicus curiae in cases of broader
significance to the criminal justice system, and pursuing legislative and
administrative reforms—all with the aim of enhancing the truth-seeking
2

function of the criminal justice system. The Innocence Project’s work
helps to ensure a more just society—and a safer one—by preventing
wrongful convictions that not only destroy lives, but often allow the
actual perpetrators of serious crimes to remain at large.
As a leading national advocate for the wrongly convicted, dedicated
to improving the criminal justice system, the Innocence Project has a
compelling interest in ensuring that civil legal remedies are available to
wrongfully convicted individuals.
The National Police Accountability Project (NPAP) is a nonprofit,
public interest organization dedicated to protecting the rights of
individuals in their encounters with law enforcement. NPAP was
founded in 1999 by members of the National Lawyers Guild. NPAP has
more than five hundred attorney members throughout the United States
who represent people in civil rights, police misconduct, and prison
conditions cases. NPAP provides public education and information on
issues relating to police misconduct and supports reform efforts aimed at
increasing police accountability. NPAP often presents the views of
victims of civil rights violations through amicus curiae filings in cases
raising issues likely to have a broad impact beyond the interests of the
3

parties. One of the central missions of NPAP is to promote the
accountability of law enforcement and government officials for violations
of the Constitution or laws of the United States.
The Center on the Administration of Criminal Law at NYU School
of Law is dedicated to defining and promoting good government practices
in the criminal justice system through academic research, litigation, and
public policy advocacy.1 The Center regularly participates as amicus
curiae in cases raising substantial legal issues regarding interpretation
of the Constitution, statutes, regulations, or policies. The Center
supports challenges to practices that raise fundamental questions of
defendants’ rights or that the Center believes constitute a misuse of
government resources. The Center also defends criminal justice practices
where discretionary decisions align with applicable law and standard
practices and are consistent with law-enforcement priorities.
The Human Rights Defense Center (HRDC) is a nonprofit 501(c)(3)
corporation headquartered in the State of Florida that advocates for the
human rights of people held in state and federal prisons, local jails,

The Center on the Administration of Criminal Law is affiliated with
New York University, but no part of this brief purports to represent the
views of New York University School of Law or New York University.
1

4

immigration detention centers, civil commitment facilities, Bureau of
Indian Affairs jails, juvenile facilities, and military prisons. HRDC’s
advocacy efforts include publishing two monthly publications, Prison
Legal News (PLN), which covers national and international news and
litigation concerning prisons and jails, as well as Criminal Legal News
(CLN), which is focused on criminal law and procedure and policing
issues. HRDC also publishes and distributes self-help reference books
for prisoners, and engages in state and federal court litigation on prisoner
rights issues, including wrongful death, public records, class actions, and
Section 1983 civil rights litigation concerning the First Amendment
rights of prisoners and their correspondents.
The New Mexico Criminal Defense Lawyers Association is a
voluntary membership organization whose members spend their time
actively engaged in practice on behalf of the accused in the state and
federal courts. The NMCDLA’s mission is to advocate for fair and
effective criminal justice in the courts, legislature, and community.
NMCDLA members have advocated at trial, on direct appeal, in postconviction proceedings, and in civil rights actions on behalf of the
actually innocent.
5

The amici’s interest in this matter arises from the involvement of
their members in litigation and policy advocacy related to wrongful
convictions and wrongful imprisonments, and in ensuring that the rights
of individuals who have been wrongfully imprisoned are fully protected.
Wrongful convictions based on fabricated evidence and willful law
enforcement misconduct present stark reminders of the importance of
civil legal remedies to deter future governmental misconduct and to
compensate wrongfully convicted individuals.
For all these reasons, the amici have an interest in a rehearing of
this case that would permit redress for gross injustices of the type at issue
here.
No party’s counsel authored this brief in whole or in part. No party,
party’s counsel, or person other than the amici curiae, their members, or
their counsel, contributed money that was intended to fund preparing or
submitting the brief.
All parties in this matter have consented to the filing of this amicus
brief.

6

INTRODUCTION AND SUMMARY OF ARGUMENT
The petition presents two important questions that are critical to
the ability of persons who have been wrongfully imprisoned to recover for
the lost years of their lives: whether the bar of Heck v. Humphrey, 512
U.S. 477 (1994), applies to persons who are no longer imprisoned and had
no chance to seek habeas relief, and whether a no-contest plea entered
upon release “caused” the preceding period of incarceration.
The legal issues are sharply drawn. As the petition explains, each
issue has produced divergent opinions in this and other courts of appeals.
Indeed, the two panel members from this Court are on opposite sides in
this very case. The deep injustice of the panel decision, which bars Louis
Taylor from recovering compensation for his 42 years of racially
motivated imprisonment for what apparently was no crime at all, makes
it an ideal vehicle to rehear the erroneously decided questions presented
here.
Those issues warrant rehearing because the panel majority’s
misapplication of Heck, together with the majority’s idiosyncratic view of
causation, will produce systemically harmful results. If the panel
decision stands, prosecuting authorities who learn that an inmate’s

7

conviction is unsustainable have a strong incentive—and a virtually failsafe tool—to buy themselves immunity from the consequences of
misconduct. All they need to do is offer immediate release conditioned on
the inmate’s no-contest plea to the charges underlying the false
conviction, with a stipulated sentence of time served.
A wrongfully convicted inmate should not be put to the choice of
languishing even longer in prison or waiving the right to be compensated
for the government’s theft of years of his life. As Judge Schroeder
observed, correctly interpreted, the “law is not that unjust.” Add. 19. The
petition for rehearing should be granted and the judgment reversed.
ARGUMENT
The issues presented for rehearing are both common and
significant. The panel decision approves a blueprint for governments to
immunize themselves from liability for the most egregious miscarriages
of justice. The tactic at issue is already used frequently both in and out
of this Circuit. And the panel decision misapprehends both Heck’s
habeas-based limitation on Section 1983 actions and the most basic
principles of causation.

8

A.

Rehearing Is Warranted to Preclude Governments from
Immunizing Themselves from Liability by Conditioning
Release from Wrongful Incarceration on a No-Contest Plea.
In the experience of the amici and their members, governments

commonly make immediate release from incarceration based on an
invalid conviction contingent on the defendant’s post hoc no-contest plea.
The panel majority’s opinion makes that tactic a nearly fail-proof means
to provide immunity from wrongful imprisonment liability. Once a
government determines that a defendant was wrongfully imprisoned
based on an invalid conviction where guilt could not be proved at retrial,
the prosecutor can immunize the relevant agencies by offering immediate
release on the condition that the wrongful conviction be vacated and
replaced with a no-contest plea to time served. This case should be
reheard to prevent that result.
1.

The inherently coercive no-contest plea required
as a condition of release from wrongful
imprisonment should not be allowed to confer
immunity.

The no-contest plea imposed as a condition of Taylor’s release was
the product of extreme and unconstitutional coercion. Taylor had already
spent 42 years in prison for a crime that, in all probability, did not even
occur. His conviction could not possibly withstand collateral review, and
9

a second conviction following retrial was exceedingly unlikely, if not
impossible. But the government could easily prolong the process for years
until Taylor’s case was complete at both the trial and appellate levels.
Fact and expert discovery could take months, briefing and a hearing
months more, and a decision months beyond that—followed in the best
case by another year of delay on appeal, and possibly by new federal
habeas proceedings and reprosecution as well.
As Justice O’Connor observed long ago, “[t]he coercive power of
criminal process may be twisted to serve the end of suppressing
complaints against official abuse, to the detriment not only of the victim
of such abuse, but also of society as a whole.” Town of Newton v. Rumery,
480 U.S. 386, 400 (1987) (O’Connor, J., concurring in part and in the
judgment). That coercive power is at its apogee when the victim has
already been imprisoned for decades as the result of official abuse.
In light of the panel decision in the present case, a no-contest plea
like Taylor’s has the same immunizing effect as the release-dismissal
agreement evaluated in Rumery, where prosecutors dismissed unproved
charges in exchange for a release from liability for police and other
government misconduct. This Court and other courts decline to enforce
10

release-dismissal agreements if enforcement will harm the public
interest, as may occur when there is substantial evidence of police
misconduct. See Lynch v. City of Alhambra, 880 F.2d 1122 (9th Cir. 1989);
Davies v. Grossmont Union High School Dist., 930 F.2d 1390 (9th Cir.
1991); Coughlen v. Coots, 5 F.3d 970, 975 (6th Cir.1993).
Here there was substantial evidence of prosecutorial and police
misconduct. And the no-contest plea requirement would not survive the
type of case-specific analysis that Rumery requires. See 480 U.S. at 397–
98. Taylor’s plea was coerced rather than voluntary, and for this 42-yearold case the prosecutor was unlikely to produce “an independent,
legitimate reason to make this agreement” that “directly related to his
prosecutorial responsibilities.” Id. at 398.

The release-dismissal

agreement in Rumery was enforceable because the plaintiff’s waiver of a
“questionably valid civil action” “did not have a significant impact upon
the public at large,” while the agreement served an admittedly legitimate
criminal justice objective: “avoidance of embarrassment to and public
scrutiny of the … complainant in a sexual assault case.” Davies, 930 F.2d
at 1396–97 (citing Rumery, 480 U.S. at 394–95). Here, in contrast, there
were

no

witnesses to

protect

from
11

“the

public

scrutiny

and

embarrassment” of testimony. Rumery, 480 U.S. at 398. Rather, the only
beneficiaries (other than the public purse) were prosecutors and expert
witnesses from more than four decades earlier, who had no legitimate
right to protection from well-warranted “public scrutiny.”
Moreover, using a no-contest plea or release-dismissal agreement
to extract a waiver of meritorious misconduct claims as a condition for
freeing an innocent man is the opposite of “an independent, legitimate
reason to make th[e] agreement.” Rumery, 480 U.S. at 398. As this Court
has observed, a prosecutor’s legitimate “interest in a particular case is
not necessarily to win, but to do justice.” United States v. Chapman, 524
F.3d 1073, 1088 (9th Cir. 2008). That interest derives from the “twofold
aim” recognized by the Supreme Court: “that guilt shall not escape or
innocence suffer.” Berger v. United States, 295 U.S. 78, 88 (1935). As
Justice Jackson observed while Attorney General, “[a]lthough the
government technically loses its case, it has really won if justice has been
done.” Robert H. Jackson, The Federal Prosecutor, 24 Am. Jud. Soc’y 18
(1940).
When a no-contest plea has been the condition of release from
wrongful imprisonment, flatly barring Section 1983 lawsuits disserves
12

one of the primary purposes of that civil rights law. “[T]he purpose of §
1983 is to deter state actors from using the badge of their authority to
deprive individuals of their federally guaranteed rights and to provide
relief to victims if such deterrence fails.” Wyatt v. Cole, 504 U.S. 158, 161
(1992) (citing Carey v. Piphus, 435 U.S. 247, 254-57 (1978)). Deterrence
necessarily fails if the offending agencies can relieve themselves of the
consequences of their misconduct with a second abuse of authority.
In addition, the Innocence Project has documented additional
benefits from Section 1983 lawsuits that addressed misconduct by
prosecuting authorities. Exposure through civil rights litigation can lead
to prosecutorial reforms designed to prevent wrongful convictions, a
benefit to all citizens. For example, after Michael Green was exonerated
in a civil lawsuit, Cleveland audited its forensic laboratory—an audit
that led to the exoneration of two more men and the termination of
Cleveland’s forensic criminalist. See The Innocence Project, Michael
Green, https://tinyurl.com/y7ofqmap. Similarly, the settlement of a
wrongful imprisonment lawsuit by Obie Anthony led Los Angeles County
to create a system for tracking and disclosing benefits to witnesses to
prevent Brady violations like the one that underlay the settlement.
13

Wrongful imprisonment as a result of official misconduct is not
rare. According to the National Registry of Exonerations, the definitive
source, 1,260 exonerations since 1989 have involved some form of official
misconduct, and account for more than 13,200 years lost due to wrongful
imprisonment. NAT’L REG. EXONERATIONS, EXONERATIONS IN THE UNITED
STATES, https://tinyurl.com/jo85y77. In 2017 alone, 84% of exonerations
related to homicides involved some form of official misconduct.
EXONERATIONS IN 2017, supra, at 2.
Unlike demands for liability releases for typical civil disputes, the
imposition of a release of liability as a condition for release from prison
does not provide a potential litigant the choice of waiting with the
confidence that a favorable result in the end will provide full
compensation including the time-value of the delay. Compensation for
wrongful conviction, while better than nothing, does not replace the lost
years of a person’s life, and there is no equivalent of prejudgment interest
that extends a lifespan. Because wrongful conviction cases are difficult to
litigate and win, no rational person would delay release from prison in
the hope of a money judgment down the road. Treating a coerced nocontest plea as a release from liability does not honor a legitimate
14

agreement negotiated at arm’s length, but imposes unconscionable
consequences on those most mistreated by society.
2.

Heck does not apply to lawsuits by former
prisoners who have completed their sentences
and cannot seek a writ of habeas corpus.

The petition explains at length why Heck does not bar lawsuits by
prisoners, like Taylor, who have completed sentences that placed them
in custody fleetingly if at all. The core reason is simple. Heck aimed at
collateral attacks on sentences that were open to challenge through a writ
of habeas corpus. But an inmate who has been released from all forms of
custody cannot seek that writ. The panel majority agreed that Heck did
not bar Taylor’s challenge to the vacated 1972 conviction. See Add. 10.
Yet the panel held that Heck nonetheless barred any challenge to the
2013 no-contest judgment, even though Taylor was not imprisoned for a
minute as a result of that judgment accompanying his release. See Add.
10–11.
The Heck bar arose from the perceived need to police “the
intersection of the two most fertile sources of federal-court prisoner
litigation—the Civil Rights Act of 1871, … 42 U.S.C. § 1983, and the
federal habeas corpus statute, 28 U.S.C. § 2254.” 512 U.S. at 480. But
15

there is no “intersection” to regulate with respect to the 2013 no-contest
judgment. “[I]ndividuals not ‘in custody’ cannot invoke federal habeas
jurisdiction, the only statutory mechanism besides § 1983 by which
individuals may sue state officials in federal court for violating federal
rights.” Heck, 512 U.S. at 500 (Souter, J., concurring in the judgment).
Taylor was never able to seek a writ of habeas corpus with respect
to the 2013 judgment because he was released from custody immediately
upon its entry. See Add. 4; Add. 19 (Schroeder, J., dissenting). Neither
the letter nor the underlying policy of Heck bars Taylor’s ability to seek
relief here.
B.

The Panel Majority’s Causation Holding Should Be Reheard
to Prevent Significant and Deleterious Practical Effects.
The panel majority raised another substantial issue in holding that

Taylor’s no-contest plea entered simultaneously with his release from
custody was the “sole legal cause” of the preceding 42 years of
imprisonment. Add. 12.
One looks in vain through the nearly five hundred pages of analysis
in Hart and Honoré’s treatise on causation for an example of a legally
recognized “cause” that occurred after the event in question. See H.L.A.
Hart & T. Honoré, Causation in the Law (2d ed. 1985).
16

Nor can the addition of the adjective “legal” legitimize the
majority’s counterfactual and counterintuitive conclusion. A “legal cause”
is term of art that limits the potentially infinite array of but-for causes
that precede an injury. See Prosser and Keeton on Law of Torts §§ 41-42
(5th ed. 1984); CSX Transp., Inc. v. McBride, 564 U.S. 685, 701-02 (2011);
Schwirse v. Director, OWCP., 736 F.3d 1165, 1170 (9th Cir. 2013). The
adjective does not expand the array of causes beyond those that both
precede and contribute to an event. One likewise searches in vain for a
“legal cause” that is not even in the broadest sense a but-for cause of the
event caused. It makes far more sense to recognize that the vacated
conviction and associated 42-year imprisonment caused the no-contest
plea than to insist that the plea caused the imprisonment that preceded
it.
Just as the majority’s holding removes the most fundamental
limitation on the concept of causation, the holding’s implications are
nearly limitless. If this precedent remains on the books, district courts
and other panels of this Court will be tempted to adopt similarly flexible
views of causation, widening the scope of criminal or civil liability by
dramatically increasing the range of events that a defendant’s conduct
17

may be said to have “caused.” The panel majority’s approach in that way
undercuts one of the most predictable aspects of the law—that causes of
an injury or other event must be sought before, not after, the event
occurs.
This case becomes simpler upon recognition that the no-contest plea
that resulted in release for time served did not cause the time to be served
in the first place. Because the actual, but-for, and legal cause of Taylor’s
42 years of imprisonment was the 1971 conviction that was vacated, even
the narrowest reading of Heck does not bar his lawsuit.
C.

Restricting Heck to its Proper Scope Will Not Unduly
Burden Governments, but Would Serve the Interests of
Justice.
No flood of Section 1983 litigation and liability would follow

reaffirmation that Heck does not preclude lawsuits challenging a
sentence for which habeas corpus was never available. Other Circuits—
and this Circuit—have permitted lawsuits targeting such sentences
without triggering a profusion of wrongful imprisonment actions. And
provable wrongful imprisonment—particularly wrongful imprisonment
that is provably a Section 1983 violation—remains rare. Mr. Taylor has
a stronger case than most. But few inmates will be able to present a
18

similar combination of fraudulent and suppressed evidence and overt
racism in a context where the very existence of a crime is in significant
doubt.
In contrast, the expanded Heck bar embraced by the panel majority
falls hardest on the victims of the most severe civil rights violations: those
imprisoned so long that they have no meaningful option to wait out the
litigation and appellate process rather than accept immediate relief.
States might argue that they will not offer earlier release in the absence
of some type of a waiver of the right to sue. But that argument does a
disservice to the role of the prosecutor, who should be expected to do
justice whether by conceding a meritorious habeas claim without
extracting a pound of flesh or by contesting a habeas claim that appears
meritless.
At least in cases like this one, where proof of wrongful
imprisonment caused by constitutional violations seems well within
reach, the risk of increased damages—and of punitive damages for the
period of incarceration after discovery of the wrong—would provide
strong incentives for a reasonable release policy. Rehearing the panel
decision will benefit, not harm, the wrongfully imprisoned.
19

CONCLUSION
The petition for rehearing should be granted and the judgment
reversed.
March 14, 2019

Respectfully submitted,

Caitlin S. Weisberg
Kaye, McLane, Bednarski
& Litt, LLP
975 East Green Street
Pasadena, California 91106
tel: 626-844-7660
cweisberg@kmbllaw.com
Counsel for National Police
Accountability Project
Stephen K. Dunkle
Sanger Swysen & Dunkle
125 E. De La Guerra Street, Suite 102
Santa Barbara, CA 93101
805-962-4887
Sdunkle@sangerswysen.com
John T. Philipsborn
Law Offices of J.T. Philipsborn
Civic Center Building
507 Polk Street, Ste.350
San Francisco, CA 94102
(415) 771-3801
Jphilipsbo@aol.com
Counsel for California Attorneys for
Criminal Justice

/s/ Donald M. Falk
Donald M. Falk
Mayer Brown LLP
2 Palo Alto Square, Ste. 300
3000 El Camino Real
Palo Alto, CA 94306
(650) 331-2000
Counsel for amici curiae
Courtney M. Oliva
Executive Director
Center on the Administration
of Criminal Law at NYU School
of Law
139 MacDougal Streer
New York, NY 10012
(212) 998-6612
courtney.oliva@nyu.edu
Sabarish P. Neelakanta
General Counsel &
Litigation Director
Human Rights Defense Center
P.O. Box 1151
Lake Worth, FL 33460
(561) 360-2523
sneelakanta@humanrightscenter.org

20

Jerry Todd Wertheim
Jones, Snead, Wertheim
& Clifford, P.A.
P.O. Box 2228
(505) 982-0011
todd@thejonesfirm.com

Vanessa Potkin
Director, Post-Conviction Santa
Fe, NM 87504-2228Litigation
The Innocence Project
40 Worth Street, Suite 701
New York, NY 10013
212-364-5359
Counsel for Amicus Curiae New Mexico vpotkin@innocenceproject.org
Criminal Defense Lawyers Association

21

CERTIFICATE OF COMPLIANCE
Pursuant to Ninth Circuit Rule 29–2, the undersigned counsel for
the amici curiae certifies that this brief:
(i)

complies with the type-volume limitation of Rule 29–2(c)(2)

because it contains 3,644 words, including footnotes and excluding the
parts of the brief exempted by Rule 32(f); and
(ii)

complies with the typeface requirements of Rule 32(a)(5) and

the type style requirements of Rule 32(a)(6) because it has been prepared
using Microsoft Office Word 2016 and is set in Century Schoolbook font
in a size equivalent to 14 points or larger.

/s/ Donald M. Falk

CERTIFICATE OF SERVICE
I hereby certify that all participants in this case are registered
CM/ECF users and that, on March 14, 2019, service of the foregoing brief
was accomplished electronically via the Court’s CM/ECF system.

/s/ Donald M. Falk



 

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