Anthony Johnson v. Edward Winstead

• Court: Court of Appeals for the Seventh Circuit
• Decided: August 14, 2018
• Docket: 16-2372
• Status: Published

Opinion

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.