Gabriel Olivier is an evangelical Christian who often shares his faith in public. In May 2021, when sharing his faith near an amphitheater in a public park in Brandon, Mississippi, the city’s chief of police confronted Olivier with a recently amended city ordinance requiring “protests” to occur in a designated area. Olivier repositioned himself but soon returned when the designated area proved remote and isolating. The city charged Olivier for violating the ordinance, and he pled nolo contendere and agreed to pay a fine. Olivier then challenged the ordinance under the First and Fourteenth Amendments, seeking an injunction prohibiting future enforcement of the law against his expressive activity.
The district court barred Olivier’s request for injunctive relief, applying the preclusion doctrine from Heck v. Humphrey, 512 U.S. 477 (1994). As a result, Olivier cannot challenge the ordinance, even though he alleges that it continues to restrict his speech and risks future penalties. On appeal, the Fifth Circuit affirmed, splitting from the Ninth and Tenth Circuits and deepening a circuit split on whether Heck applies to noncustodial plaintiffs who cannot access habeas relief. The Fifth Circuit denied rehearing en banc by one vote, over dissents arguing Olivier’s plea should not bar future constitutional protection. In July, the Supreme Court granted certiorari.
Featuring:

Nathan Kellum, Senior Counsel, First Liberty Institute
(Moderator) Tobias S. Loss-Eaton, Partner, Sidley Austin LLP