On Wednesday, Dec. 3, the Supreme Court heard argument in Olivier v. City of Brandon, Mississippi, and considered the tension between the broad language and potentially narrower purpose of a ruling from three decades ago on whether an individual convicted of violating a law can later challenge the law as unconstitutional and seek to protect him or herself from its future enforcement.
The dispute stems from an ordinance in Brandon, Mississippi, that places restrictions on protesters and other demonstrators who wish to share their message outside the city’s amphitheater. Among other things, the ordinance requires them to stand within a designated protest area. City leaders have said the rules address “hardships” that previously interfered with the work of law enforcement officers who help with crowd control and traffic management during concerts.
In May 2021, Gabriel Olivier, who describes himself as a “public evangelist” and regularly holds signs printed with scripture passages and hands out Christian literature at large events, was arrested for violating Brandon’s ordinance after he left the designated protest area to move closer to concertgoers. The next month, he entered a “no contest” plea – that is, he did not admit guilt, but he did not dispute the charges against him – and was fined, given a 10-day suspended sentence, and put on unsupervised probation for a year.
After his conviction, Olivier decided to challenge Brandon’s ordinance in the hope of protecting himself from future prosecution. He brought a federal civil rights claim against the city under 42 U.S.C. § 1983, contending that its rules for protesters violate the First Amendment.
The Supreme Court is not addressing the merits of that claim, and during oral arguments on Wednesday, which lasted slightly under 90 minutes, the justices said very little about religious freedom and free speech. Instead, they debated whether the lower courts were correct in holding that Olivier’s Section 1983 claim is barred by Heck v. Humphrey, a 1994 case in which the Supreme Court held that convicted criminals cannot challenge the law under which they were convicted if success in such a lawsuit “would necessarily imply the invalidity” of their conviction or sentence.
It is difficult to predict how the court will resolve the case because several justices appeared to believe that the court cannot allow Olivier’s Section 1983 lawsuit to proceed without ignoring the plain meaning of the language used in Heck – even as they also believe that the Heck court might have supported Olivier.
For example, Justice Samuel Alito, after raising the possibility that the court would have to “backtrack on a number of things that the court said in Heck” to side with Olivier, implied that the city’s position is “far afield from what Heck was trying to get at,” which was “prevent[ing] end runs around habeas [challenges in federal court to one’s detention].”
Similarly, Justice Elena Kagan told Allyson N. Ho, who represented Olivier, that “[i]f we take Heck for all it’s worth, I think … you can’t win,” before later observing that “any of the kind of underlying concerns about Heck don’t seem to apply here.”
Ho contended that the court does not need to abandon Heck to rule for Olivier, because “[t]he relief he seeks, an injunction and a declaration, won’t annul his conviction or alter his sentence.” “[A] prior conviction shouldn’t forever bar a claim for future protection,” she added.
But even a forward-looking case can implicate a past conviction, Alito observed, stating that if Olivier is successful in showing that Brandon’s ordinance violates the First Amendment, it would imply that he shouldn’t have been convicted under the ordinance in the past.
The situation grows even more complicated if someone’s past conviction resulted in more than a fine and suspended sentence, noted Chief Justice John Roberts and Justice Neil Gorsuch. What if someone can no longer own a gun? What if they have to check in every two weeks with a probation officer? Would those lingering requirements be displaced by a successful Section 1983 claim? Ho said that they wouldn’t necessarily be affected by a federal judgment that’s forward-looking.
The justices continued to worry that they were being led toward a “pretty complicated” outcome as they spoke with Ashley Robertson, an assistant to the U.S. solicitor general who argued on behalf of the federal government in support of Olivier. Robertson agreed with Ho that Heck does not limit individuals who are not in custody, like Olivier, from seeking prospective relief through a Section 1983 claim. However, she urged the court to draw a distinction between these individuals and those who remain in custody, contending that “there’s a greater potential for conflict with the federal habeas statute” in forward-looking claims from such persons.
G. Todd Butler, who represented the city of Brandon, offered the justices a path forward that would be free of the complications raised in response to Ho’s and Robertson’s arguments – namely, holding that Olivier’s Section 1983 lawsuit is barred by the plain language of Heck. But several justices still seemed dissatisfied. Why, they wondered, would Olivier be barred from bringing his claim for prospective relief if someone who did street preaching next to him but wasn’t convicted under the ordinance could essentially bring the exact same claim? Wouldn’t that separate claim undermine Olivier’s prior conviction, too?
Butler contended that “Heck is personal.” It created a test that each individual seeking to bring a Section 1983 suit must pass on an individual basis. “So that’s all we’re asking in this case, is that this court apply the same test it has for the past three decades,” he said.
And applying that test and preventing Olivier’s Section 1983 case from moving forward at this time doesn’t mean that Olivier is out of options, Butler noted. Among other possible steps, he could challenge Brandon’s ordinance as a violation of the Mississippi Constitution, “which offers greater First Amendment protection than the federal Constitution.”
If their tough questions and at-times exasperated comments are any indication, several justices are torn about what to do in the case. The court is expected to issue its ruling by late June or early July.
Cases: Olivier v. City of Brandon, Mississippi
Recommended Citation:
Kelsey Dallas,
Court wrestles with whether a past conviction should bar a lawsuit seeking future relief,
SCOTUSblog (Dec. 4, 2025, 9:30 AM),
https://www.scotusblog.com/2025/12/court-wrestles-with-whether-a-past-conviction-should-bar-a-lawsuit-seeking-future-relief/
