Looking Forward: How the Supreme Court’s Recent Interpretation of the Heck Bar will Impact Local Government’s Vulnerability under § 1983

by Andrew Pyles, Associate Member, University of Cincinnati Law Review Vol. 94

I. Introduction

Local laws and ordinances shape the daily lives of American citizens. The laws created by counties, municipalities, and townships are closely tied to the community that they serve and often govern very specific kinds of behavior.¹ When an individual violates a local law, such as texting while driving, they face a penalty upon conviction.² However, some local ordinances conflict with constitutional protections, like freedom of speech.³ Even when such laws are necessary to serve a legitimate public health interest, individuals charged under certain ordinances may seek to challenge their convictions on constitutional grounds. The law has long been unclear on whether that challenge may be brought in federal court under 42 U.S.C. § 1983, which authorizes suits against state actors who commit a constitutional violation under color of state law.⁴ In the case of Olivier v. City of Brandon, the Supreme Court resolved that question, holding that persons convicted under local ordinances could challenge the future enforcement of the ordinance, even if their convictions had not yet been reversed.⁵

This article explores what the Court’s decision means for local governments and how it reshapes their response to civil rights litigation. Section II explains how municipalities are sued and how Olivier changes the landscape for convicted individuals seeking to bring such suits. Section III argues that the Court’s decision exposes local governments to a flood of litigation and is incompatible with the Court’s § 1983 precedent. Section IV concludes that Olivier eases access to federal court for convicted persons but fails to address the underlying harms caused by the current framework, thereby leaving local governments more vulnerable to lawsuits.

II. Background

Local governments can include counties, municipalities, townships, and special districts.⁶ These bodies hold police power derived from the state.⁷ With this authority, local governments can enact laws known as ordinances, so long as they comply with state and federal laws.⁸ The authority local governments have to pass laws depends on whether the state follows Dillon’s Rule or grants home rule authority to cities.⁹ When Dillon’s Rule applies, the local government possesses only those powers specifically delegated to them by state law or implied from expressly granted powers.¹⁰ When local governments have home rule authority, they enjoy broader authority to manage their own affairs.¹¹

Regardless of which framework applies, local governments generally retain authority to establish and oversee police departments.¹² Law enforcement officers, in particular, likely have the most frequent and direct interactions with community members.¹³ When those interactions result in constitutional violations, Congress provides a cause of action for individuals to seek redress.

A. Civil Rights Claims under 42 U.S.C. § 1983

42 U.S.C. § 1983 provides a civil cause of action against persons who deprive individuals of constitutional rights while acting under color of state law.¹⁴ The statute originated as the Ku Klux Klan Act of April 20, 1871 (the Act), enacted to provide a federal remedy when state law was either inadequate or available in theory but not in practice.¹⁵ At the time, many states were not enforcing the law against members of the Ku Klux Klan, leaving victims without meaningful recourse at the state level.¹⁶

The Supreme Court explored this history in Monroe v. Pape, where it addressed whether individuals acting “under color of state law” could be liable under § 1983 even when their conduct violated state law.¹⁷ Relying on Screws v. United States¹⁸ and United States v. Classic,¹⁹ the Court found that individuals acting under color of state law were persons with the authority or ability to engage in conduct, irrespective of whether the action was pursuant to state law.²⁰ However, state actors often have the defense of “qualified immunity,” which protects them from suit when they are not acting contrary to clearly established law.²¹

Municipalities do not have such immunity from § 1983 suits. for constitutional rights violations in some circumstances.²² The Court in Monell v. Department of Social Services concluded that municipalities are considered “persons” within the meaning of § 1983, but clarified that they are only liable when action is taken pursuant to an official policy or custom that causes a constitutional violation.²³ Under Monell, municipalities are not liable under § 1983 merely because an employee or agent of the municipality committed a constitutional violation.²⁴ Another limitation on the ability of individuals to bring a § 1983 suit against the local government came 16 years later in Heck v. Humphrey.

B. The Heck Bar

Those bringing suit under § 1983 are subject to limitations under the Heck doctrine, which bars plaintiffs from bringing claims where success would undermine a state-imposed conviction or sentence, unless the conviction or sentence has been favorably terminated.²⁵ In the case from which the doctrine arose, Heck v. Humphrey,²⁶ the Supreme Court held that state prisoners cannot challenge the constitutionality of their convictions in suits for damages under § 1983.²⁷ Instead, they must file a federal habeas corpus petition.²⁸

In Heck, a man was convicted of voluntary manslaughter and alleged that the prosecutors and investigators destroyed exculpatory evidence and committed an arbitrary investigation that violated his constitutional rights. The Court held that his suit was barred because his conviction was not invalidated. The Court explained that since liability for damages under § 1983 is similar to tort liability, malicious prosecution was a close analogy to the case challenging a sentence of conviction.²⁹ Since an element of malicious prosecution is a favorable termination of the prior criminal proceeding in favor of the accused, the Court held that such a requirement is necessary for § 1983 claims to prevent two conflicting resolutions of the same transaction or occurrence.³⁰ Thus, the Court noted, if “a state prisoner seeks damages in a § 1983 suit” and “a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence,” the complaint must be dismissed.³¹ However, the Court did not reach the question of whether suits seeking purely prospective relief, like an injunction against a law or policy, are subject to the favorable-termination requirement.

C. Olivier v. City of Brandon

Prior to the Heck doctrine, plaintiffs utilized § 1983 to challenge local ordinances under the federal Constitution.³² However, the decision in Heck created uncertainty for persons who had been convicted under an ordinance and wanted to challenge its constitutionality.³³ In Olivier v. City of Brandon, a street preacher who demonstrated in a local amphitheater challenged an ordinance restricting his activity to a “designated protest area.”³⁴ He was convicted under the ordinance, ordered to pay a fine, and put on probation, with a ten-day prison sentence imposed if he violated the ordinance again.³⁵ The preacher filed suit under § 1983, not seeking damages, but instead seeking an injunction against the ordinance so that he may return to the amphitheater without fear of further punishment.³⁶ The city moved to dismiss the complaint, arguing that the Heck doctrine barred the suit because it would cast doubt on the correctness of the previous conviction under the ordinance.³⁷ The district court sided with the City, and the Fifth Circuit Court of Appeals affirmed. The Supreme Court granted certiorari to decide whether the Heck bar on § 1983 claims applies to plaintiffs convicted under an allegedly unconstitutional law but merely seek prospective relief.³⁸

The Court held that Heck did not bar the preacher’s challenge of the local ordinance.³⁹ The Court explained that suits filed to secure or expedite release, or to obtain monetary damages, necessarily challenge the validity of the prior conviction or sentence. But, suits seeking an injunction against future enforcement of an ordinance do not.⁴⁰ The Court relied on Edwards v. Balisok⁴¹ and Wilkinson v. Dotson,⁴² in which prisoners brought § 1983 actions challenging disciplinary hearing and parole procedures, respectively.⁴³ In each of those cases, the Court noted that the claims seeking only future relief were found to be so distant from the core of habeas corpus proceedings that they were not barred by Heck.⁴⁴

The Court clarified that the Heck doctrine requires dismissal of § 1983 complaints when “a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence,” and that it applies only when the suit requires looking back to conduct involved in the prior conviction.⁴⁵ The Court continued that if Heck barred the preacher’s lawsuit challenging the local ordinance, it would also bar other citizens’ lawsuits challenging the same ordinance, since they would also imply the invalidity of the preacher’s conviction.⁴⁶ The Court concluded that Heck did not bar the preacher’s lawsuit because the injunction he sought only looked forward.⁴⁷ The controlling law comes from Wooley v. Maynard, in which the Court held that plaintiffs could sue under § 1983 to prevent the future enforcement of allegedly unconstitutional statutes or ordinances, even if they had previously been convicted under the law.⁴⁸ The Court thus allowed the preacher’s suit to enjoin the local ordinance to proceed on that basis.

III. Discussion

The Court’s decision in Olivier v. City of Brandon narrows application of the Heck bar, leaving local governments more exposed to federal litigation and potentially undermining their ability to enforce local laws. This Section argues that, in the wake of this decision, although convicted persons now have easier access to federal court, the ruling fails to address the underlying harms of the current framework. This result leaves local governments more vulnerable to lawsuits, and the threat of costly litigation may deter the enactment of laws that promote public safety and welfare.

A. The Decision in Olivier Makes Local Governments More Vulnerable to Federal Litigation

The Court in Heck recognized that allowing convicted persons to challenge their convictions under § 1983 could generate a flood of litigation against government actors.⁴⁹ However, the decision in Olivier permits civil litigation against state actors, like municipalities, when the plaintiff is solely seeking to challenge the constitutionality of the ordinance’s future enforcement.⁵⁰ The practical effect of this decision will increase the likelihood that a local ordinance will face a federal challenge that Heck previously foreclosed.

Municipalities have long been subject to constitutional litigation over the enforcement of ordinances addressing health and safety concerns. In City of Grants Pass v. Oregon, a class of unhoused persons challenged an ordinance prohibiting camping on public property.⁵¹ Justice Gorsuch, in his opinion for the Supreme Court upholding the ordinance, described the appropriate response to the homelessness crisis as “varied and complex.”⁵² Many different local governments face similar dilemmas that require nuanced responses.

The Court confronted a similar dynamic in Hurley v. Irish-American Gay, Lesbian, & Bisexual Group of Boston, which involved a constitutional challenge to local parade permitting requirements.⁵³ While plaintiffs often have valid constitutional challenges to local ordinances, local governments may have to prepare for litigation whenever a public safety and welfare ordinance is used to convict an individual or group and implicates a constitutional concern.

This preparation is costly to local governments and taxpayers, even if the local governments are not required to pay damages upon a successful challenge to an ordinance.⁵⁴ Local governments are structurally distinct from federal and state entities.⁵⁵ Municipal governments are often small and underfunded, often have thinly staffed or overworked legal departments, and may require outside counsel to handle defense litigation.⁵⁶ Increased litigation imposes real costs on governments already operating at capacity.⁵⁷

The Court’s new Heck framework has the consequence of inflating that number of lawsuits, as those convicted under an enacted ordinance are now encouraged to not only appeal the conviction, but also file a suit in federal court under § 1983. And because this decision in Olivier applies specifically to suits seeking prospective relief against local ordinances, it will fall most heavily on local governments, who are least equipped to absorb them. Consequently, over time, local governments may ultimately be discouraged from enacting the very laws their communities need.⁵⁸

B. The Court’s New Heck Framework Frustrates Local Government Lawmaking While Still Restricting State Prisoners’ Access to Federal Courts

Since the decision of Heck v. Humphrey in 1994, some scholars have argued that the Court should abandon or limit the Heck doctrine because it is contrary to the language and function of § 1983.⁵⁹ This scholarly work focuses on the difficulty prisoners face in seeking federal relief when they are subjected to unconstitutional state action leading up to and during their imprisonment.⁶⁰ The Court in Olivier ignores the arguments against continued application of the Heck doctrine and instead creates a carve-out, allowing suits against persons when challenging continued enforcement of a law.⁶¹

Such a carve-out does not comport with the language of Heck. The Court in Heck emphasized that it has “generally declined to expand opportunities for collateral attack” and noted that neither civil tort actions nor § 1983 claims are appropriate vehicles for challenging the validity of outstanding criminal judgments.⁶² Further, the Court’s analogy to malicious prosecution implies that its decision was made in light of the potential for a flood of federal litigation arising from a wide range of state convictions.⁶³

If every conviction under a local ordinance were challenged in federal court by the convicted person, it would necessarily erode public faith in the local government to enact reasonable laws for the safety and welfare of the community.⁶⁴ This new framework, combined with existing municipal liability doctrine and the qualified immunity available to individual government officials, has made it easy to sue municipalities for the ordinances and policies they enact. Yet, it is still nearly impossible for victims of police misconduct to sue for violations of their constitutional rights.⁶⁵

This outcome is far departed from the original understanding of § 1983 in Monroe v. Pape and is at odds with Heck itself. Individuals must have a meaningful way to challenge unconstitutional local laws.⁶⁶ But the current Heck framework singles out local governments without adequate justification or protection. The Court should either clearly abandon the Heck doctrine altogether or establish clear protections that shield local governments from the surge in litigation that Olivier invites.

IV. Conclusion

Local governments occupy a unique position in civil rights litigation. In some ways, they are protected from suit and treated differently from other “persons” under § 1983, since they are not liable for the actions of their employees.⁶⁷ However, under the Court’s new framework for applying the Heck bar, local governments are more vulnerable to litigation regarding their lawmaking and policymaking authority.

The resulting framework is misaligned with the statute’s original purpose of providing a federal remedy for the actions and inactions of state officials.⁶⁸ It also fails to deter constitutional violations by city police officers or others who interact with the public and can commit grave constitutional violations.⁶⁹ Instead, it forces city law departments and officials to consider how their policies could lead to a suit in federal court. The rule after Olivier allows convicted individuals to frustrate legitimate local lawmaking. As a result, local governments may have to plan for increased spending on defending those laws in federal court if they want to continue to enforce them.

Cover Photo by Tom Fisk on Pexels

Andrew Pyles

References

1
See Tommy Culkin, Casper City Council Tables Ordinance to Allow Domesticated Fowl in City, Oil City News (Apr. 7, 2026) https://oilcity.news/community/city/2026/04/07/casper-city-council-tables-ordinance-to-allow-domesticated-fowl-in-city [https://perma.cc/6PR2-CWRY].
2
E.g. Cincinnati, Ohio, Municipal Code § 506-98.
3
See Cincinnati, Ohio, Municipal Code § 910-19 (establishing rules regarding temporary ordinances governing speeches or gathering when a “special event ordinance” is put in place).
4
42 U.S.C.A. § 1983 (West 2026).
5
Olivier v. City of Brandon, Mississippi, 146 S.Ct. 916, 924 (2026).
6
Jay Wimberly, Local Governments 101: Common Structures and How Local Laws Are Made, MultiState (Apr. 30, 2025) https://www.multistate.us/insider/2025/4/30/local-governments-101-common-structures-and-how-local-laws-are-made [https://perma.cc/5HC8-RNH7].
7
Id.
8
Id.
9
Andrew Pyles, Blog, No Parking Any Time: State Legislation Preempting Local Minimum Parking Requirements, U. Cin. L. Rev. (Apr. 1, 2026) https://uclawreview.org/2026/04/01/no-parking-any-time-state-legislation-preempting-local-minimum-parking-requirements [https://perma.cc/6BFX-2X8G].
10
Jesse J. Richardson, Jr., et al, Is Home Rule the Answer? Clarifying the Influence of Dillon’s Rule on Growth Management, Brookings Inst. January 2003, at 1.
11
See id. at 10.
12
See, e.g. A Selected Reading: The Municipal Police Force, Al. League of Cities, revised 2024 (describing how the municipal police force is operated in municipalities in Alabama).
13
U.S. Dep’t Just., NCJ 231851, Building Trust Between the Police and the Citizens they Serve: An Internal Affairs Promising Practices Guide for Local Law Enforcement at 33 (2009).
14
42 U.S.C.A. § 1983 (West 2026).
15
Monroe v. Pape, 365 U.S. 167, 171, 173-74 (1961).
16
Id. at 178 (“There was, it was said, no quarrel with the state laws on the books. It was their lack of enforcement that was the nub of the difficulty.)
17
Id.
18
325 U.S. 91 (1945).
19
313 U.S. 299 (1941).
20
See Monroe, 365 U.S. 167 at 187 (“We conclude that the meaning given ‘under color of’ law in the Classic case and in the Screws and Williams cases was the correct one, and we adhere to it.”).
21
Harlow v. Fitzgerald, 457 U.S. 800, 815 (1982).
22
Monell v. Dep’t of Social Svcs. of City of New York, 436 U.S. 658, 663 (1978).
23
Id. at 690.
24
Id. at 691.
25
Devi M. Rao, The Heck Bar Gone Too Far; Heck’s Application to Prisoners’ Excessive Force Suits, 17 Harv. L. & Pol’y Rev. 365, 365 (Jan. 15, 2024).
26
512 U.S. 477 (1994).
27
Id. at 486-87; Rao, supra note 25.
28
Id. at 481, 489.
29
Id. at 484.
30
Id.
31
Id. at 487.
32
See, e.g. Doran v. Salem Inn, Inc., 422 U.S. 922, 924-25 (1975) (challenging an ordinance making it unlawful for bar owners to permit wait staff to appear topless).
33
See Cordova v. City of Reno, 920 F.Supp. 135, 137 (D. Nev 1996) (applying Heck bar to a plaintiff’s §1983 claim and instead treating the complaint as a petition for a writ of habeas corpus).
34
Olivier v. City of Brandon, Mississippi, 146 S.Ct. 916, 920 (2026).
35
Id.
36
Id. at 920-21.
37
Id. at 921.
38
Id. at 922.
39
Id.
40
Id. at 924.
41
520 U.S. 641 (1997).
42
544 U.S. 74 (2005).
43
Olivier, 146 S.Ct. 916 at 924.
44
Id.
45
Id. at 924-25 (quoting Heck v. Humphrey, 512 U.S. 477, 487 (1994)).
46
Id. at 925-26.
47
Id. at 926.
48
Id.
49
See Heck v. Humphrey, 512 U.S. 477, 484 (noting that a favorable termination requirement avoids parallel litigation and collateral attacks on convictions through civil suits).
50
See Olivier v. City of Brandon Mississippi, 146 S.Ct. 916, 924 (2026).
51
City of Grants Pass, Oregon v. Johnson, 603 U.S. 520, 525 (2024).
52
Id.
53
515 U.S. 557 (1995); See Brief of Loc. Gov’t Legal Ctr. as Amicus Curiae, Olivier v. City of Brandon, Mississippi, No. 24-993, 2025 WL 2994065 (Oct. 20, 2025).
54
See Denise G. Callahan, These Local Government Lawsuits are Costly for Butler County Taxpayers, J. News, (Dec. 29, 2025) (noting that the cost to municipalities in Butler County, Ohio to defend lawsuits over a 5 year span tallied $3.3 million).
55
Zachary D. Clopton & Nadav Shoked, Suing Cities, 133 Yale L.J. 2540, 2574 (2024).
56
Id.
57
Id.
58
See Clopton & Shoked, supra note 55 at 2579 (concluding that the economics of suits against local governments favor the plaintiff and force money-poor municipalities into avoiding litigation).
59
See Gregory Getrajdman, What the Heck Were They Thinking? It’s Time for the Court to Abandon the Heck Doctrine, 74 Rutgers U. L. Rev.182 (2022); The Heck Conundrum: Why Federal Courts Should Not Overextend the Heck v. Humphrey Preclusion Doctrine, 2014 BYU L. Rev. 185 (2014) (arguing that the Heck bar should be limited to claims by the convict and not by others whose convictions arise out of the same occurrence).
60
Getraidman, supra note 59, at 197 (“Heck continues to blockade prisoners seeking federal redress for the unconstitutional horrors they endure at the hands of the state.”).
61
Olivier v. City of Brandon, Mississippi, 146 S.Ct. 916, 925 (2026).
62
Heck v. Humphrey, 512 U.S. 477, 486 (1994).
63
Id. at 484.
64
See Matt Lehrman, Defending Civic Trust: The Responsibility of Local Leadership, N.C. League of Mun’s (Jun. 13, 2025) https://www.nclm.org/news-media/southern-city/defending-civic-trust-the-responsibility-of-local-leadership [https://perma.cc/GC9W-EB7L](discussing efforts to dismantle local government and arguing that such efforts have weakened the functions of local government).
65
See Clopton & Shoked, supra note 55, at 2546.
66
See Olivier v. City of Brandon, Mississippi, 146 S.Ct. 916, 926 (2026) (posing a hypothetical where no citizen would be able to enjoin the city ordinance).
67
See Monell v. Dep’t of Social Svcs. of City of New York, 436 U.S. 658, 694 (1978).
68
See Monroe v. Pape, 365 U.S. 167, 174 (1961).
69
See U.S. Data on Police Shootings and Violence, UIC Sch. Pub. Health, https://policeepi.uic.edu/u-s-data-on-police-shootings-and-violence [https://perma.cc/3BT6-5X2X] (last accessed Apr. 8, 2026).