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Excerpted From: Christian Ketter, “Black Lives Matter” and “The Blue Line” Clashed Across the United States in 2020, Raising a Necessary Question for the U.S. Supreme Court: Whether the Heck Doctrine Bars a Convict's Challenge for Equal Protection Claims of Racial-Profiling, 44 Campbell Law Review 35 (Winter 2021) (103 Footnotes) (Full Document)


ChristianKetterOn May 25, 2020, George Floyd, a forty-six-year-old African American, died as a result of a Minneapolis police officer kneeling on his neck. George Floyd's death sparked a mix of intense discourse and uprising across the United States over all matters involving race and law enforcement. His death also came after the tragic deaths of Breonna Taylor and Ahmaud Arbery, causing a nation to grieve and face challenging discourse on applications of race and law enforcement.

Earlier that year, on March 13, twenty-six-year-old Breonna Taylor died after complications arose when police executed an unannounced-entry search warrant for narcotics. In response to the unannounced entry, Taylor's boyfriend, a concealed-carry holder, fired upon the unidentified officers, who returned fire with approximately twenty-five shots, eight of which struck Taylor, sadly resulting in her death.

On February 23, twenty-five-year-old Ahmaud Arbery was chased by three white men while jogging in Georgia. The men, who included a former police detective, suspected Arbery of local burglaries, horrifyingly chased him down, and shot him.

Amid a year that already included the tragedy known as “COVID-19,” the deaths of Arbery, Floyd, and Taylor ignited discourse, protests, and riotous looting across the country; as some cities burned literally, it shed a figurative light upon the American interplay of race and police. Even when looting was avoided in other parts of the country, tensions of race relations and law enforcement flared nonetheless. Meanwhile, danger increased exponentially in 2020 as officers faced a myriad of risks beyond the baseline of their profession, including the terror of targeted assassinations in the line of duty during a year that had the highest number of law enforcement line-of-duty deaths. In Oakland, California, on May 29, 2020, fifty-three-year-old federal officer David Patrick Underwood, was murdered in the line of duty by a drive by shooter who, along with an accomplice, was targeting law enforcement and intended to kill police officers. Earlier that year, in New York City, a gunman carried out a rampage on officers because, as he explained, “he was tired of police officers.” Robert Williams opened fire on officers from whom he had asked directions and later stormed a Bronx police station, firing upon multiple officers, striking Lieutenant Jose Gautreaux, and reminding many of the tragic 2014 assassination of Wenjian Liu and Rafael Ramos, two unsuspecting NYPD officers sitting in their vehicle.

Meanwhile, questions involving race and law enforcement continually loom over the U.S. Supreme Court and its reputation. Duke University Law Professor and constitutional scholar, Neil S. Siegel, wrote in The Atlantic that “[o]ccasionally a justice will mention concerns about racism in a dissent, but that's pretty much it.”

In 2016, Justice Sonia Sotomayor, a former criminal prosecutor, dissented from Justice Clarence Thomas's majority opinion in Utah v. Strieff, writing “it is no secret that people of color are disproportionate victims of this type of scrutiny.” In Strieff, the Court “granted certiorari to resolve disagreement about” what happens when “an unconstitutional detention leads to the discovery of a valid arrest warrant.” In answer to that question, it held that objective ends will ultimately justify a stop. Professor Siegel argued that the constitutionality of racial profiling was left unsettled because “[t]he Court had nothing to say about whether it was enabling police to engage in racial profiling.” Similarly, the question looms as to whether Heck v. Humphrey guards a government entity against civil rights litigation when a plaintiff attempts to pursue a 42 U.S.C. § 1983 suit for racial profiling without overturning or achieving a judicial set-aside of the underlying conviction. Part (a) of this article's analysis will provide an overview of the Heck doctrine and its functions. Part (b) explains how lower courts have interpreted Heck. Part (c) examines the function of equal protection claims and how Heck applies to those claims. Finally, Part (d) explores the need for the Court to address that function.

[. . .]

Chief Justice Roberts, quoting Justice Oliver Wendell Holmes, stated that “'[c]ertitude is not the test of certainty.’ It's not how strongly you feel about it, but how effective you can be in explaining the reasoning and getting others to understand the reasoning.” Those who disagree, according to Roberts, “don't just disagree and say, 'Well, I don't agree with that,’ they try to explain why and it's a very important part of the process.” As far as the Heck doctrine and claims of racial profiling are concerned, the process has largely worked itself out among the Circuits to a consistent result. Nevertheless, as Martin A. Schwartz noted, on behalf of the Federal Judicial Center, that lower courts tend to have trouble “determining whether a § 1983 claim 'necessarily implicates' the validity of a conviction .... under the Heck doctrine, a § 1983 excessive force claim necessarily implicates a conviction for such crimes as resisting arrest, assault or battery of an officer, or obstructing an officer.” So long as this general difficulty pervades Heck, issues of race will not make the jurisprudence thereon any easier. Constitutional scholar and University of Chicago Professor David A. Strauss cautioned, “[m]ost people's intuitive judgments about race are not fully trustworthy, and a requirement that reasons be articulated will hold those judgments up to a critical light.” However, this Supreme Court can offer the critical light necessary to bring closure to the Heck doctrine on this issue.

While Chief Justice Roberts has aptly stated, “I don't think it would be a good idea to turn all the hard issues over to the courts,” police practice and matters of race are precisely a subject upon which the Roberts Court may objectively call “balls and strikes.” Moreover, Chief Justice Roberts has positioned the Court to serve as umpire to an issue in need of such review. The Heck doctrine is nearly a quarter century old, but the effect of its application is still young. While the Second, Third, Seventh, Eighth, Ninth, and Tenth Circuits, and America's district courts have addressed the issue of equal protection claims and their interplay with Heck over the past twenty years, the U.S. Supreme Court notably has not. As discussions of race and law enforcement rattle on, the need for the Court to settle the Heck doctrine's applicability becomes greater.

Christian E. Ketter is an Adjunct Professor of Criminal Procedure at Morton College and an Associate Attorney with Hervas, Condon & Bersani, P.C., practicing federal civil rights litigation, municipal law, and state tort litigation.

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