(Tampa Free Press)—The Liberty Justice Center (LJC) filed an amicus brief with the U.S. Supreme Court today, urging the justices to take up the case of Olivier v. City of Brandon and protect individuals’ ability to challenge potentially unconstitutional laws even after being prosecuted under them.
The case involves Gabriel Olivier, a Mississippi resident who faced prosecution in 2021 under a Brandon city ordinance that restricted “protests” to a specific designated area. Olivier, a devout Christian, was sharing his faith near a public amphitheater when confronted by the police chief. After finding the designated zone remote and unsuitable, he returned to his original location and was subsequently charged. Olivier pleaded nolo contendere (no contest) and paid a fine.
Seeking to prevent future enforcement of the ordinance, which he argues violates his First and Fourteenth Amendment free speech rights, Olivier filed a lawsuit under 42 U.S.C. § 1983 asking for an injunction. However, both the federal district court and the U.S. Court of Appeals for the Fifth Circuit barred his request, citing the Supreme Court precedent Heck v. Humphrey.
The LJC’s “friend of the court” brief argues that the Fifth Circuit misapplied the Heck precedent, which typically relates to damages claims that would imply the invalidity of a prior conviction. The LJC contends that Heck should not bar lawsuits seeking prospective relief – court orders aimed at preventing future constitutional violations.
This ruling, the LJC argues, creates a dangerous “Catch-22.” “If they challenge a law before being prosecuted, the government argues the threat of enforcement is too speculative; if they wait until after prosecution, courts like the Fifth Circuit claim it is too late,” the brief highlights.
“When someone challenges an unconstitutional law, the government does everything it can to stop them from getting their day in court,” stated Jacob Huebert, President of the Liberty Justice Center. “The lower court’s decision here would make that even easier for the government by closing the courthouse doors to some of the people most affected by an unconstitutional law—those who have already been prosecuted for violating it. That’s wrong.”
The LJC emphasizes that individuals like Olivier, having already faced prosecution and intending to continue the conduct that led to it, are uniquely positioned to demonstrate a credible threat of future enforcement, a key factor in establishing standing to sue.
Furthermore, the Fifth Circuit’s decision deepens a split among federal appellate courts. Other circuits, including the Ninth and Tenth, have held that Heck does not bar plaintiffs seeking prospective relief from challenging laws under which they were previously prosecuted.
The Liberty Justice Center urges the Supreme Court to grant Olivier’s petition for certiorari (agree to hear the case) to resolve this circuit split and clarify that individuals are not precluded from seeking protection against future enforcement of unconstitutional laws simply because they have already faced prosecution under them.