                          RECOMMENDED FOR FULL-TEXT PUBLICATION
                               Pursuant to Sixth Circuit Rule 206
                                    File Name: 05a0130p.06

                   UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT
                                   _________________


                                                      X
                                                       -
 KEITH B. BARANSKI, d/b/a MAGUA INDUSTRIES

                              Plaintiffs-Appellants, -
 and PARS INTERNATIONAL CORPORATION,
                                                       -
                                                       -
                                                           Nos. 03-5582/5614

                                                       ,
           v.                                           >
                                                       -
                                                       -
 ALCOHOL, TOBACCO AND FIREARMS, BRIAN DIXON, -
 FIFTEEN UNKNOWN AGENTS OF THE BUREAU OF

                                                       -
                                                       -
 MICHAEL R. JOHNSON, DOUGLAS R. DAWSON,
                                                       -
 MARK S. JAMES, KARL L. STANKOVIC, WILLIAM J.
                                                       -
 HOOVER,
                                        Defendants, -
                                                       -
                                                       -
                               Defendant-Appellee. -
 UNITED STATES OF AMERICA,
                                                       -
                                                       -
                                                      N
                        Appeal from the United States District Court
                     for the Western District of Kentucky at Louisville.
                 No. 01-00398—John G. Heyburn II, Chief District Judge.
                                  Argued: October 28, 2004
                            Decided and Filed: March 14, 2005
                     Before: KEITH, CLAY, and COOK, Circuit Judges.
                                    _________________
                                         COUNSEL
ARGUED: Richard E. Gardiner, Fairfax, Virginia, Saeid Shafizadeh, Louisville, Kentucky, for
Appellants. Terry M. Cushing, ASSISTANT UNITED STATES ATTORNEY, Louisville,
Kentucky, for Appellee. ON BRIEF: Richard E. Gardiner, Fairfax, Virginia, Saeid Shafizadeh,
Louisville, Kentucky, for Appellants. Terry M. Cushing, Candace G. Hill, John E. Kuhn, Jr.,
ASSISTANT UNITED STATES ATTORNEYS, Louisville, Kentucky, for Appellee.
       CLAY, J., delivered the opinion of the court, in which KEITH, J., joined. COOK, J. (pp.
17-18), delivered a separate opinion concurring in part and dissenting in part.




                                              1
Nos. 03-5582/5614 Baranski, et al. v. Unknown ATF Agents, et al.                              Page 2


                                       _________________
                                           OPINION
                                       _________________
        CLAY, Circuit Judge. Plaintiffs Keith B. Baranski and Pars International Corporation
(“Pars”) appeal the March 14, 2003 order of the district court holding that Defendants Fifteen
Unknown Agents of the Bureau of Alcohol, Tobacco and Firearms (“ATF”) and six named ATF
agents were entitled to qualified immunity because (1) Plaintiffs suffered no Fourth Amendment
violation by virtue of the alleged lack of particularity in the search warrant that Defendants used to
seize hundreds of firearms and accessories owned by Baranski and stored by Pars; and (2) the facts
did not show that Defendants violated a clearly established constitutional right pursuant to Harlow
v. Fitzgerald, 457 U.S. 800, 818 (1982). Plaintiffs also appeal the court’s holding that Plaintiffs’
action for damages pursuant to Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403
U.S. 388 (1971), would necessarily imply the invalidity of Baranski’s criminal conviction related
to the importation of the firearms and, therefore, must be dismissed pursuant to Heck v. Humphrey,
512 U.S. 477 (1994). For the reasons that follow, we REVERSE the district court’s holding with
regard to qualified immunity and AFFIRM, in part, and REVERSE, in part, the district court’s
dismissal of Plaintiffs’ Bivens claims pursuant to Heck v. Humphrey.
                                                  I.
A.     Substantive Facts
        Plaintiff Keith Baranski is a citizen of Ohio who does business as Magua Industries, which
imports firearms and ammunition pursuant to a Federal Firearms License issued by the ATF.
Plaintiff Pars, a Kentucky corporation, is a tenant of a multiple occupancy commercial structure
located at 509 Cheyenne Avenue, Louisville, Kentucky. The ATF has issued Pars a Federal
Firearms License to import firearms and ammunition. Pars is the custodian of a U.S. Customs High
Security Bonded Warehouse (“CBW”) located at 509 Cheyenne Avenue. The U.S. Customs Service
has approved the warehouse for the storage of firearms covered by the National Firearms Act
(“NFA”), 26 U.S.C. § 5845. Pars routinely receives merchandise from various licensed importers
of NFA firearms for storage at its warehouse, and Pars also performs customs broker services on
behalf of other importers. On various dates between October and December 2000, the Customs
Service authorized Baranski to lawfully enter into the United States approximately 421 firearms and
accessories from Bulgaria and Poland and store them in Pars’s storage facility.
        On January 16, 2001, ATF Agents Brian Dixon and Michael Johnson, named defendants
in this lawsuit, interrogated Baranski. They asked about his relationship with another Federal
Firearms Licensee, Vic’s Gun Corporation, and then served him with a grand jury subpoena.
       On April 10, 2001, Agent Johnson applied to U.S. Magistrate Judge Cleveland Gambill of
the Western District of Kentucky for a search and seizure warrant for Pars’s storage facility. The
application for search warrant described the place to be searched as follows:
       Pars International - Two story tan colored concrete construction building with
       narrow security windows. Marked “509” above front glass door. A sign indicating
       that the facility is a “Customs Bonded Warehouse” is posted on the door. Located
       at 509 Cheyenne Avenue, Louisville, Kentucky.
The description of the person or property to be seized stated, “See Attached Affidavit.” As to the
basis for the search and seizure, the application stated, “See Attached Affidavit.” As to the facts
supporting a finding of probable cause, the application stated, “SEE attached Affidavit.”
Nos. 03-5582/5614 Baranski, et al. v. Unknown ATF Agents, et al.                              Page 3


        The attached affidavit was that of Agent Johnson, who indicated that he has been employed
with the ATF for over 10 years and has participated in over 200 criminal firearm investigations.
Johnson averred that, after a six-month investigation, there was probable cause to show that Plaintiff
Baranski conspired with James Carmi and others to import law enforcement restricted machine guns
for resale to Carmi and possibly others, in violation of 18 U.S.C. § 922(o); 26 U.S.C. § 5844; and
26 U.S.C. § 5861(1). Agent Johnson stated that the machine guns at issue were being stored at Pars,
a Customs Bonded Warehouse, located at 509 Cheyenne Avenue, Louisville, Kentucky.
        Johnson elaborated that Carmi, a previously convicted felon, assumed a false identity in
order to operate a federally licensed firearms business called Vic’s Gun Corporation. Pursuant to
an ATF investigation of Vic’s, Carmi was discovered with over 700 machine guns and firearms.
Seized documents suggested a relationship between Carmi and Baranski. (Carmi subsequently was
indicted in the United States District Court for the Eastern District of Missouri.)
        Johnson’s affidavit further explained that Baranski imported about 500 machine guns
ostensibly as dealer samples for sale to law enforcement, which 18 U.S.C. § 922(o) permits. By
January 2001, Baranski had removed at least 49 firearms from Pars’s Custom Bonded Warehouse
after submitting letters purportedly from the Farber, Missouri, police chief requesting a
demonstration of the machine guns. The affidavit recounted an interview in which Baranski told
Johnson that Carmi had agreed to pay Baranski for the firearms and that about 425 machine guns
remained at Pars’s warehouse. The affidavit also recounted Agent Johnson’s interview with the
Farber, Missouri, police chief who had explained that he had fraudulently composed the letters with
the expectation of remuneration, that he had no knowledge of Baranski’s firearms company, and that
he had no intention of receiving a machine gun demonstration from Baranski. Documents seized
from Carmi, and later Carmi himself, confirmed that Carmi had acted as an intercessor between
Baranski and the police chief to obtain fraudulent police demonstration request letters in order to
remove machine guns from Pars’s warehouse.
       Agent Johnson’s affidavit concluded as follows:
       I have probable cause to believe that a large number of law enforcement restricted
       machineguns were fraudulently imported into the United States with the intention of
       further being distributed and sold to others involved in the conspiracy. I also have
       probable cause to believe that the machine guns in question are currently being
       stored at the Pars International Custom’s Bonded warehouse, 509 Cheyenne Avenue,
       Louisville, Kentucky.
       Later in the morning of April 10, 2001, Magistrate Judge Gambill granted Agent Johnson’s
application for a search warrant. The warrant, like the application, described the property or
premises as follows:
       Pars International - Two story tan colored concrete construction building with
       narrow security windows. Marked “509” above front glass door. A sign indicating
       that the facility is a “Customs Bonded Warehouse” is posted on the door. Located
       at 509 Cheyenne Avenue, Louisville, Kentucky.
The warrant indicated that “there is now concealed a certain person or property, namely … See
Attached Affidavit.” The magistrate judge ordered the application for the search warrant and the
supporting affidavit to be sealed.
       On April 11, 2001, approximately 21 ATF agents, armed with the warrant, demanded
entrance into 509 Cheyenne Avenue, where Pars’s storage facility is located. The agents were
greeted by Saeid Shafizadeh, who managed the facility. Shafizadeh requested to see the affidavit
referenced in the search warrant but that was not attached to it. ATF Agent (and individual
Nos. 03-5582/5614 Baranski, et al. v. Unknown ATF Agents, et al.                             Page 4


defendant) Karl Stankovic responded that the affidavit was part of the court records, which were
sealed. Agent Johnson allegedly stated that the warrant was for the entire two-story building and
that unless Shafizadeh directed the agents to Baranski’s property, they would search the entire
building. Shafizadeh then asked Customs’ Port Director, Frank Dupre, to read the warrant, and
Dupre stated that, according to the warrant, the place to be searched was the Customs Bonded
Warehouse. Customs Inspector James Thompson indicated that the warehouse was located in the
basement of the building. Shafizadeh insisted that the warrant was defective without a description
of what was to be seized and indicated that his acquiescence to let the agents enter the building was
not voluntary.
        Shafizadeh directed the agents to a secured vault in the basement of the building, which he
identified as the Custom Bonded Warehouse portion of the building. Shafizadeh identified the
section of the vault for firearms imported and owned by Baranski. Defendants seized Baranski’s
372 firearms and 12 wooden crates containing firearm parts. The ATF agents did not search or
inspect any other portion of the vault, the warehouse, or building.
        On July 3, 2002, Baranski was indicted by a grand jury sitting in the United States District
Court for the Eastern District of Missouri. Baranski was charged with conspiracy to import machine
guns by making knowingly false entries on applications and other records, in violation of 26 U.S.C.
§ 5861(l). The indictment further pled criminal forfeiture of the machine guns that were the subject
of the conspiracy count, pursuant to 28 U.S.C. § 2461(c).
       After entertaining pre-trial motions in Baranski’s criminal proceeding, the district court in
Missouri granted in part Baranski’s motion in limine concerning the 372 machine guns seized from
Pars. The court held:
       The Court does not necessarily believe that the machine guns are relevant as
       evidence under Rule 401. Moreover, any probative value is outweighed by the
       danger of unfair prejudice. Finally, the display of 372 machine guns in the
       courtroom seems excessive. Therefore the Court will allow the display of several
       machine guns in the courtroom and/or photographs of same.
The court, however, denied Baranski’s motion to suppress the machine guns and the 12 crates seized
from Pars. The court held that Baranski had not demonstrated that the statements in Agent
Johnson’s affidavits were false or how the statements affected the probable cause determination.
The court also found that the facts in the affidavit were sufficient to support probable cause for a
conspiracy or that the seized weapons were imported with an intent to sell to one of the co-
conspirators.
       A jury found Baranski guilty as charged on the sole count of the indictment on November 18,
2002. On February 27, 2003, the court sentenced Baranski to 60 months’ imprisonment followed
by three years of supervised release. The district court also ordered the forfeiture of the 372
machine guns and 12 crates seized from Pars and incorporated the forfeiture order into Baranski’s
judgment of conviction.
        As to the forfeiture, the court found: “Not only did the evidence clearly establish that the
seized weapons were covered by the fraudulent law enforcement letters, but the Government’s
evidence at trial clearly established by at least a preponderance of the evidence that the defendant,
as part of the conspiracy, intended on selling all of the weapons in the CBW to his co-conspirator,
James Carmi.” Thus, the court found that the guns and accessories described in the indictment were
“property used or intended to be used in a manner to facilitate the commission of the crime for which
defendant was convicted.” The district court ordered the United States to publish notice of the order
and its intent to dispose of the property in such a manner as the Secretary of Treasury may direct.
Nos. 03-5582/5614 Baranski, et al. v. Unknown ATF Agents, et al.                               Page 5


The order provided the right to any person, other than Baranski, to assert a legal interest in the
property and petition for a hearing on his or her claim. Counsel for Pars received notice of the
forfeiture and its right to assert a legal interest in the machine guns.
         On September 23, 2003, the U.S. Court of Appeals for the Eighth Circuit affirmed Baranski’s
conviction and sentence. United States v. Baranski, No. 03-1575, 2003 WL 22176185 (8th Cir. Sep.
23, 2003). The court found that the district court had properly denied Baranski’s motion to suppress
“because there was probable cause for issuance of the warrant regardless of the alleged errors.” Id.
at *1 (citing United States v. Briscoe, 317 F.3d 906, 907 (8th Cir. 2003)). The court further held that
“[t]he warrant should not have been suppressed for lack of particularity” because “the warrant
referred to a sealed affidavit that described the weapons.” Id. (citing United States v. Cherna, 184
F.3d 403, 412-14 (5th Cir. 1999)). The court added that, assuming the weapons should have been
suppressed at trial, their admission was harmless error because the documents and testimony proved
the government’s case. Id. The court also affirmed the forfeiture order, finding that the evidence
supported the district court’s finding that the weapons were intended to be used to commit or
facilitate the commission of the charged crime. Id. at *2 (citing 21 U.S.C. § 853(a)(2)).
B.     Procedural History
         On July 5, 2001, Plaintiffs Baranski and Pars International filed a complaint in federal
district court against fifteen unknown named agents of the ATF, six named individual ATF agents,
and the United States. Invoking the First, Fourth, and Fifth Amendments to the U.S. Constitution,
Plaintiffs sought an order unsealing the affidavit of the search; an order suppressing the unlawfully
seized evidence; an injunction compelling the return of seized firearms; and compensatory and
punitive damages. The complaint alleged that Defendants’ purported constitutional violations had
“placed [Baranski] in an economically disadvantaged position in relation to his competitors who are
directly benefitting from the actions of the defendants, and the absence of [Baranski] from [sic]
marketplace,” and had “impaired plaintiffs’ ability to earn a lawful income from legitimate
activities.” Citing Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1971), Plaintiffs alleged that Defendants violated their Fourth and Fifth Amendment rights under
the U.S. Constitution. Plaintiffs also alleged state law claims for trespass, tort, and defamation.
        On March 22, 2002, the district court granted the United States’ motion to be substituted as
the sole party defendant to Plaintiff’s state law tort claims, pursuant to the Federal Tort Claims Act,
28 U.S.C. § 2679(d)(1), and to dismiss these claims against the individual named defendants. The
court dismissed Plaintiffs’ request for return of the seized firearms and ammunition on the ground
that the government already had initiated forfeiture proceedings and Plaintiffs’ were contesting the
forfeiture. As such, Plaintiffs could not seek either return of the property or compensation for it
through a separate federal action. The court also dismissed Plaintiffs’ state law claims because they
had not exhausted their administrative remedies under the Federal Tort Claims Act. The court
denied the motion to dismiss Plaintiff’s claim to unseal the affidavit supporting the search and
seizure warrant, which was premised on alleged violations of the First and Fourth Amendments. The
court also stayed Plaintiff’s Bivens claims, premised on the Fourth and Fifth Amendments, against
the named and unnamed agents for three months.
       On November 22, 2002, the court lifted the stay on the case and granted Pars’s motion to
unseal the application and supporting affidavit of the search and seizure warrant in Baranski’s
criminal case. The court set a briefing schedule on Defendants’ assertion of qualified immunity.
        On March 14, 2003, the court found that Defendants were entitled to qualified immunity
because (1) Plaintiffs suffered no Fourth Amendment violation by virtue of the alleged lack of
particularity in the search warrant; and (2) the facts did not show that Defendants violated a clearly
established constitutional right per Harlow v. Fitzgerald, supra. The court also found no basis in
Nos. 03-5582/5614 Baranski, et al. v. Unknown ATF Agents, et al.                               Page 6


Plaintiffs’ Fifth Amendment due process claim stemming from the government’s seizure of the
machine guns and related accessories. Last, the court noted that a finding in favor of Plaintiffs on
their Bivens action would undermine the finding of the magistrate judge in Baranski’s criminal
proceeding that the ATF agents had a good faith basis to believe that the warrant that they executed
was valid even though it lacked specificity. The court also observed that the Bivens action would
be “inconsistent with a federal judge’s decision to forfeit these machine guns as being used in the
commission of a federal conspiracy crime.” As a collateral attack on Baranski’s conviction and the
various court rulings that led to it, a Bivens action would run afoul of Heck v. Humphrey, supra. The
court dismissed all of Plaintiffs’ claims with prejudice.
       Plaintiffs now appeal the dismissal of their Bivens claims premised on alleged violations of
the Fourth Amendment. Plaintiffs have not appealed the district court’s dismissal of their state law
claims for trespass, tort, and defamation or the court’s dismissal of their Fifth Amendment Bivens
claims; we therefore deem any challenge to the district court’s dismissal of these claims waived.
                                                  II.
        The Fourth Amendment to the U.S. Constitution protects people and their houses, papers,
and effects from “unreasonable searches and seizures” and provides that “no Warrants shall issue,
but upon probable cause, supported by Oath or affirmation, and particularly describing the place to
be searched, and the persons or things to be seized.” U.S. CONST. amend. IV. Regarding the Fourth
Amendment’s particularity requirement, this Court has observed that “[g]eneral warrants, by failing
to describe particularly the things to be seized, create a danger of unlimited discretion in the
executing officer’s determination of what is subject to seizure and a danger that items will be seized
when the warrant refers to other items.” United States v. Savoca, 761 F.2d 292, 298-99 (6th Cir.
1985) (citing Andresen v. Maryland, 427 U.S. 463, 480 (1976)). “A particular warrant also assures
the individual whose property is searched or seized of the lawful authority of the executing officer,
his need to search, and the limits of his power to search.” Groh v. Ramirez, 540 U.S. 551, 561
(2004) (internal quotation marks and citations omitted). “The uniformly applied rule is that a search
conducted pursuant to a warrant that fails to conform to the particularity requirement of the Fourth
Amendment is unconstitutional.” Massachusetts v. Sheppard, 468 U.S. 981, 988 n.5 (1984)
(citations omitted).
         In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, supra, the plaintiff
filed a complaint against agents of the Federal Bureau of Narcotics alleging that while acting under
the color of federal authority, the agents conducted a warrantless search of the his apartment and
arrested him without probable cause in violation of the Fourth Amendment. Id. at 389-90. The
Supreme Court held that the plaintiff could recover damages from the federal agents for the injuries
that they allegedly inflicted on him in violation of the Fourth Amendment. Id. at 392-97.
         In the instant case, ATF Agent Johnson applied for a search warrant for Pars’s storage
facility and described the location of the facility as a tan, two-story building with a sign indicating
that the facility is a “Customs Bonded Warehouse” and located at 509 Cheyenne Avenue, Louisville,
Kentucky. Although the application did not describe the property to be seized, the attached
affidavit, which the application incorporated by reference, referred to about 425 machine guns at
Pars’s Custom Bonded Warehouse. The warrant, which the magistrate judge executed, similarly
described the location of the facility containing the items to be seized. Like the application, the
warrant did not describe the items to be seized, but referred to an attached affidavit. A copy of the
attached affidavit was not provided to Pars at the time of the search and seizure; only the warrant
was provided because the magistrate judge had sealed the affidavit. Plaintiffs have alleged Bivens
claims against Defendant ATF Agents, asserting that the warrant upon which they relied did not
comport with the particularity requirement of the Fourth Amendment as to (1) the items to be seized
and (2) the place to be searched.
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A.      Standard of Review
       This Court reviews de novo the district court’s ruling that a search warrant satisfied the
Fourth Amendment’s particularity requirement. United States v. Gahagan, 865 F.2d 1490, 1496 (6th
Cir. 1989).
B.      Particularity of the Items to Be Seized
        The facts in this case are not materially distinguishable from the facts in Groh v. Ramirez,
supra. There, Jeff Groh, an ATF agent, applied for a warrant to search Joseph Ramirez’s ranch for
a large stock of unregistered automatic rifles, grenades, a grenade launcher, and a rocket launcher.
Groh supported his application for a warrant with a detailed affidavit that set forth the basis for his
belief that the items were on the ranch. A magistrate judge signed the warrant form after reviewing
the application and the affidavit. The warrant, however, was not specific regarding the place to be
searched or the contraband to be seized. 540 U.S. at 554. The description of the property to be
seized indicated only a description of the location where the property could be found, and the
warrant did not incorporate by reference the itemized list contained in the application. Id. at 554-55.
When the ATF agents searched Ramirez’s home, they left him a copy of the search warrant, but not
a copy of the application, which had been sealed. Id. at 555.
        The Court held that the warrant “was plainly invalid.” Id. at 557. The warrant was deficient
as to the Fourth Amendment’s particularity requirement because it provided no description of the
type of evidence sought. Id. It did not describe the items to be seized at all, but only provided a
description of the residence where the items allegedly could be found. Id.
        The Court further held that “[t]he fact that the application adequately described the ‘things
to be seized’ [did] not save the warrant from its facial invalidity.” Id. (emphasis in original). “The
Fourth Amendment by its terms requires particularity in the warrant, not in the supporting
documents.” Id. (citations omitted). The Court condoned the practice of construing a warrant in
conjunction with a supporting application or affidavit, but only if (1) “the warrant uses appropriate
words of incorporation” and (2) “the supporting document accompanies the warrant.” Id. at 557-58
(citations omitted). The Court, however, refused to consider Groh’s argument that the warrant
incorporated the particulars in the application and affidavit because “the warrant did not incorporate
other documents by reference, nor did either the affidavit or the application (which had been placed
under seal) accompany the warrant.” Id. at 558. Because Groh “did not have in his possession a
warrant particularly describing the things he intended to seize, proceeding with the search was
clearly ‘unreasonable’ under the Fourth Amendment.” Id. at 563.
         The Court further held that Groh was not entitled to qualified immunity for conducting a
search based on the defective warrant. Id. at 563-64. “Given that the particularity requirement is
set forth in the text of the Constitution, no reasonable officer could believe that a warrant that plainly
did not comply with that requirement was valid.” Id. (citing Harlow v. Fitzgerald, 457 U.S. 800,
818-19 (1982)). “[E]ven a cursory reading of the warrant … – perhaps just a simple glance – would
have revealed a glaring deficiency that any reasonable police officer would have known was
constitutionally fatal.” Id. at 564. And, because Groh prepared the invalid warrant, he could not
argue that he reasonably relied on the magistrate judge’s assurance that the warrant was sufficiently
particular and, therefore, valid. Id.
       The Groh decision makes it clear that the warrant that Agent Johnson procured for the search
of Pars’s warehouse was plainly invalid. As in Groh, the warrant was deficient as to the Fourth
Amendment’s particularity requirement because it provided no description of the type of evidence
sought. It did not describe the items to be seized at all, referring only to the building where the items
Nos. 03-5582/5614 Baranski, et al. v. Unknown ATF Agents, et al.                                 Page 8


allegedly could be found. Indeed, in Baranski’s criminal prosecution, the government conceded that
the warrant lacked particularity as to the items to be seized.
        The fact that Agent Johnson’s application and affidavit adequately described the things to
be seized (i.e., 425 machine guns) does not change the result because “[t]he Fourth Amendment by
its terms requires particularity in the warrant, not in the supporting documents.” Id. at 557 (citations
omitted). Although the warrant used appropriate words of incorporation, the supporting documents
that the warrant purported to incorporate did not accompany the warrant. Because Agent Johnson
“did not have in his possession a warrant particularly describing the things he intended to seize,
proceeding with the search was clearly ‘unreasonable’ under the Fourth Amendment.” Id. at 563.
        Defendants counter that Groh does not provide any guidance on the circumstances under
which an affidavit describing the items to be seized can be considered to have “accompanied” the
warrant. We disagree. The Supreme Court explicitly held that a supporting affidavit must
accompany the warrant and that the affidavit served on Ramirez did not accompany the warrant
because the court had placed it under seal. It was not sufficient for Agent Groh to be subjectively
aware of the particulars contained in the affidavit; those particulars had to be communicated through
the warrant to Ramirez. See Groh, 540 U.S. at 561 (noting that one purpose of the particularity
requirement is to “assure[] the individual whose property is searched or seized of the lawful
authority of the executing officer, his need to search, and the limits of his power to search”); cf.
Whren v. United States, 517 U.S. 806, 813 (1996) (“Subjective intentions [of the law enforcement
officer] play no role in ordinary, probable-cause Fourth Amendment analysis.”). It follows, a
fortiori, that it was not sufficient for Agent Johnson to be aware of the limits on his lawful authority
under the warrant. Those particulars had to be communicated to the manager of Pars through the
warrant or an attachment to the warrant. It is undisputed that they were not because, as in Groh, the
affidavit that contained the particulars did not accompany the warrant at the time of the search and
seizure.
         In light of the recent Groh decision, we do not find Defendants’ reliance on the Sixth
Circuit’s decisions in United States v. Gahagan, supra, and Frisby v. United States, 79 F.3d 29 (6th
Cir. 1996) to be dispositive of Plaintiffs’ underlying Fourth Amendment claim. Gahagan, like Groh,
recognized that “[a] warrant that fails to describe the area to be searched with sufficient particularity
can be cured by an accompanying affidavit if the affidavit is attached to the warrant and the warrant
incorporates the affidavit by reference.” Gahagan, 865 F.2d at 1497 (citations omitted). In this
case, it is undisputed that Agent Johnson’s supporting affidavit was not attached to the warrant.
And, although the Court in Gahagan found that the particularity requirement was satisfied based on
an unattached affidavit, in that case the affidavit was in one of the officer’s vehicles and therefore
was readily accessible. Id. In this case, there is no dispute that the affidavit, which was under seal,
was not at the scene of the search and seizure and, therefore, it was not, and could not have been,
readily accessible.
        Gahagan also is distinguishable because, there, the Court found that the warrant’s
description of the location to be searched was “less than complete,” having stated the incorrect
address Id. at 1498. However, it was undisputed that the targeted property (a cabin) had no address
marking and was located on the same property listed in the warrant. Id. at 1493-94. Thus, the
affidavit supporting the warrant, which did identify the targeted property, showed that “there was
no risk … that a mistaken search of another premises was possible.” Id. at 1498. In this case, the
warrant to seize property at Pars was not “less than complete”; it was totally incomplete. It did not
simply reflect an inaccurate description of the items to be seized; it contained no description
whatsoever. The facts of this case are unlike Gahagan, where an unattached affidavit could be used
to explain a description in the warrant, because the warrant for Baranski’s property provided no
description at all.
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        Finally, to the extent that Gahagan announced a rule that facts known by the executing
officer and the approving magistrate judge, but not specifically stated in the affidavit or warrant,
automatically cures a facially defective warrant,1 we hold that Groh rejected such a rule. Groh
categorically held that “[t]he Fourth Amendment by its terms requires particularity in the warrant,
not in the supporting documents.” Groh, 540 U.S. at 557 (citations omitted). See also id. at 564
(holding that because the ATF Agent had prepared the invalid warrant, he could not argue that he
reasonably relied on the magistrate judge’s assurance that the warrant was sufficiently particular
and, therefore, valid).
         Frisby also is inapplicable to this case. In Frisby, the warrant incorporated by reference an
“Attachment A,” which listed the items to be seized with particularity. 79 F.3d at 31. At the time
of the search, the officers “inadvertently” failed to provide a copy of Attachment A. Id.; see also
id. at 32 (noting that there was “no allegation that the failure to serve plaintiff with a copy of
Attachment A was either intentional or deliberate”). Consequently, the Court found no Fourth
Amendment violation. Id. at 32. In the instant case, by contrast, Agent Johnson intentionally
refused to provide a copy of his supporting affidavit, which described the particular items to be
seized, because the affidavit was under seal. More fundamentally, Frisby did not challenge the
validity of the warrant either as to the probable cause underlying the warrant “or the specificity with
which the places to be searched or the things to be seized [were] enumerated.” Id. at 31. Thus, we
fail to see how Frisby has any bearing in this case, where the very issue is the validity of the warrant
with regard to the specificity of the place to be searched and the things to be seized. For these
reasons, we hold that the warrant upon which Defendants relied to search Pars’s warehouse and
seize Baranski’s firearms and related accessories was constitutionally defective.
C.       Particularity of the Place to Be Searched
        The warrant described the street address and color of the building and referred to a sign on
the building that stated “Customs Bonded Warehouse.” Plaintiffs contend that the warrant was
defective because its description of the building implied that the entire building was the object of
the search. Plaintiffs point out that the warehouse does not occupy the entire building, only the
basement.
        “The test for determining whether the description in the warrant is sufficient to satisfy the
particularity requirement … [has] two components: (1) whether the place to be searched is described
with sufficient particularity as to enable the executing officers to locate and identify the premises
with reasonable effort; and (2) whether there is reasonable probability that some other premises may
be mistakenly searched.” Gahagan, 865 F.2d at 1497 (citation omitted). Here, the description of
the building assured that the executing officers could locate where the Customs Bonded Warehouse
was with reasonable effort and to avoid mistakenly searching for the warehouse on some other
premises. There is no evidence in this case that the agents searched anywhere other than the
Customs Bonded Warehouse portion of the building that is identified in the warrant and to which


         1
           See id. at 1499 (“[W]e find that when one of the executing officers is the affiant who describes the property
to the judge, and the judge finds probable cause to search the property as described by the affiant, and the search is
confined to the areas which the affiant described, then the search, in this case, is in compliance with the fourth
amendment.”). In an unpublished decision, this Court, following Gahagan, held that the Fourth Amendment was not
violated when the warrant for firearms referred only to “attachment B” under the description of the items to be seized
and attachment B was not served with the warrant because it was under seal. See United States v. Pritchett, 40 Fed.
Appx. 901, 907 (6th Cir. July 9, 2002) (unpublished) (noting that the defendant was not prejudiced by the failure to
receive attachment B with the warrant because (a) before the search began, the ATF agent told the defendant what they
would be searching for; (b) the search was conducted in accordance with the warrant; (c) the officers provided the
defendant with a receipt for the seized items; and (d) the affiant was in charge of executing the search, thereby
minimizing the possibility of the search going beyond the scope of the warrant).
Nos. 03-5582/5614 Baranski, et al. v. Unknown ATF Agents, et al.                                               Page 10


the manager of the Pars warehouse directed the agents. Accordingly, although the warrant was
defective on its face as to the items to be seized, it sufficiently described the place to be searched.
D.       Qualified Immunity
         1.       Standard of review
       This Court conducts a de novo review of the district court’s determination that the ATF
agents were entitled to qualified immunity. Stemler v. City of Florence, 126 F.3d 856, 866 (6th Cir.
1997) (citing Barton v. Norrod, 106 F.3d 1289, 1293 (6th Cir. 1997)).
         2.       Analysis
         “[G]overnment officials performing discretionary functions generally are shielded from
liability for civil damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Harlow, supra, 457 U.S.
at 818. “It is not necessary that the very action have been previously held unlawful but, given the
preexisting law, the unlawfulness of the conduct must have been apparent.” Stemler, 126 F.3d at
866. “In determining whether an official is entitled to qualified immunity, this court asks whether
the law was clearly established at the time of the alleged action.” Id. (citing Barton, 106 F.3d at
1293). A federal right is “clearly established” where “any official in his position would have
understood that he was under an affirmative duty to refrain from such conduct.” Doe v. Bowles, 254
F.3d 617, 620 (6th Cir. 2001) (internal quotation marks and citations omitted). In determining
whether the officers should have known their actions were unlawful, this Court looks primarily to
decisions of the Supreme Court, this court, and other courts within our circuit. Stemler, 126 F.3d
at 866 (citing Cagle v. Gilley, 957 F.2d 1347, 1348 (6th Cir. 1992)).
        The recent Groh decision compels the conclusion that the Defendants2 are not entitled to
qualified immunity for conducting a search based on the defective warrant. “Given that the
particularity requirement is set forth in the text of the Constitution, no reasonable officer could
believe that a warrant that plainly did not comply with that requirement was valid.” Groh, 540 U.S.
at 563-64 (citing Harlow, 457 U.S. at 818-19). As in Groh, even “a cursory reading of the warrant
… would have revealed a glaring deficiency that any reasonable police officer would have known
was constitutionally fatal.” Id. at 564. Moreover, because Agent Johnson prepared the invalid
warrant, he cannot argue that he reasonably relied on the magistrate judge’s assurance that the
warrant was sufficiently particular and, therefore, valid. Id.
        Defendants correctly point out that the district court in Baranski’s criminal case (as affirmed
by the Eighth Circuit) held that the “good-faith” exception3 applied to their actions in executing the


         2
         Defendants have not advanced separate qualified immunity arguments for each individual Defendant.
Accordingly, we have treated them collectively for purposes of this analysis.
         3
           Although the Fourth Amendment contains no provision expressly precluding the use of evidence obtained in
reliance on an invalid warrant, United States v. Leon, 468 U.S. 897, 906 (1984), under the exclusionary rule, such
evidence “cannot be used in a criminal proceeding against the victim of the illegal search and seizure.” United States
v. Calandra, 414 U.S. 338, 347 (1974) (citations omitted). Because the exclusionary rule is directed toward law
enforcement officers, the Supreme Court has created a “good-faith” exception to the exclusionary rule, which permits
the admission of evidence obtained in objectively reasonable, good-faith reliance on a subsequently invalidated search
warrant. Leon, 468 U.S. at 919 n.20, 922; see also id. at 923 n.24 (“[O]ur good-faith inquiry is confined to the
objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal
despite the magistrate’s authorization.”). The good-faith exception would not apply where, for example, a warrant is
“so facially deficient – i.e., in failing to particularize the place to be searched or the things to be seized – that the
executing officers cannot reasonably presume it to be valid.” Id. at 923.
Nos. 03-5582/5614 Baranski, et al. v. Unknown ATF Agents, et al.                              Page 11


warrant. The decision in Groh, however, undermines the legal basis for that holding and requires
this Court to reject Defendants’ assertion of qualified immunity because their reliance on such a
facially defective warrant was not objectively reasonable. See Groh, 540 U.S. at 565 n.8 (noting that
both the “good-faith” exception to the Fourth Amendment’s general exclusionary rule and the
concept of qualified immunity apply the same standard of objective reasonableness) (citing Malley
v. Briggs, 475 U.S. 335, 344 (1986)). We therefore reverse the district court’s holding that
Defendants were entitled to qualified immunity.
         As the dissent correctly notes, prior decisions of this Court condoned the practice of serving
facially defective warrants that cross-reference sealed affidavits identifying the items to be seized
with particularity. See, e.g., discussion and cases cited at note 1, supra. We find it significant,
however, that in Groh the Supreme Court denied qualified immunity for an agent who had
specifically described the items to be seized in a sealed application for a warrant submitted to a
magistrate, but not in the warrant itself, on the ground that executing the search with only the
warrant in hand violated clearly established law as set forth in both the text of the Constitution and
prior decisions of the Supreme Court. See Groh, 540 U.S. at 563-65 (noting that agent’s search
premised on a facially defective warrant plainly did not comply with the Fourth Amendment’s
particularity requirement, and the search was not justified by any of the exceptions that Supreme
Court had crafted for warrantless searches). In so holding, the Supreme Court rejected the agent’s
argument, echoed in the United States’ amicus brief, that qualified immunity was appropriate
because “at the time petitioner acted, no controlling decision and indeed no decision by any court
anywhere in the country had ruled that his actions were unlawful.” Petition for a Writ of Certiorari
to the Ninth Circuit Court of Appeals at 8, Groh v. Ramirez, No. 02-811 (Nov. 22, 2002) (available
at 2002 WL 32101201) (emphasis in original); see also Reply Brief for Petitioner at 16, Groh v.
Ramirez, No. 02-811 (Aug. 29, 2003) (available at 2003 WL 22068574) (arguing that denial of
qualified immunity would mean that, at the time of the search, the agent should have “prefigure[d]
that a warrant which refers to the underlying affidavit information provided to the magistrate cannot
be supplemented by reference to that documentation, still an issue that is hotly controverted among
the circuit courts”); Brief for the United States as Amicus Curiae Supporting Petitioner at 24-25,
Groh v. Ramirez, No. 02-811 (May 21, 2003) (available at 2003 WL 21209371) (arguing that agent
was entitled to qualified immunity because the rule that an affidavit must be both attached to the
warrant and incorporated by reference in order to supplement the text of the warrant “has been
rejected by most other circuits and its strict application is inconsistent in principle with numerous
cases of this Court and the courts of appeals, including the Ninth Circuit, that have applied the
particularity requirements of the Warrant Clause pragmatically, with regard to their purposes”).
Accordingly, notwithstanding precedent from this Circuit that arguably justified Defendants’ actions
at the time, we hold that Groh mandates a denial of qualified immunity.
                                                 III.
        In Heck v. Humphrey, supra, the Supreme Court held that actions under 42 U.S.C. § 1983,
like civil tort actions, are not appropriate vehicles for challenging the validity of outstanding
criminal judgments. 512 U.S. at 486.
       Thus, when a state prisoner seeks damages in a § 1983 suit, 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 demonstrate that the conviction or sentence has already been
       invalidated. But if the district court determines that the plaintiff’s action, even if
       successful, will not demonstrate the invalidity of any outstanding criminal judgment
       against the plaintiff, the action should be allowed to proceed, [footnote omitted] in
       the absence of some other bar to the suit. [footnote omitted]
Nos. 03-5582/5614 Baranski, et al. v. Unknown ATF Agents, et al.                                Page 12


Id. at 487 (emphasis in original). In dictum, the Supreme Court explained the limitation of its
holding:
        [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 resulting in the § 1983 plaintiff’s still-outstanding conviction. Because of
        doctrines like independent source and inevitable discovery, see Murray v. United
        States, 487 U.S. 533, 539, 108 S. Ct. 2529, 2534, 101 L. Ed.2d 472 (1988), and
        especially harmless error, see Arizona v. Fulminante, 499 U.S. 279, 307-308, 111 S.
        Ct. 1246, 1263-1264, 113 L. Ed.2d 302 (1991), such a § 1983 action, even if
        successful, would not necessarily imply that the plaintiff's conviction was unlawful.
Id. at 487 n.7 (emphasis in original).
       The litigation bar of Heck applies with equal force to a civil rights action brought pursuant
to Bivens. Robinson v. Jones, 142 F.3d 905, 906-07 (6th Cir. 1998). This Court applies a de novo
standard of review to the district court’s determination that Plaintiffs’ Bivens claims are barred by
Heck v. Humphrey. Id. at 906.
        A hypothetical judgment in this litigation that the search of Pars’s warehouse and the seizure
of Baranski’s machine guns was unconstitutional would not “necessarily imply” the invalidity of
Baranski’s criminal conviction for conspiracy to illegally import machine guns. The district court
in Baranski’s criminal case denied the motion to suppress the machine guns, but indicated that it
did “not necessarily believe” that the machine guns were even relevant to the case. On appeal, the
Eighth Circuit held that “[t]he warrant should not have been suppressed for lack of particularity”
because “the warrant referred to a sealed affidavit that described the weapons,” Baranski, 2003 WL
22176185, at *1 (citing United States v. Cherna, 184 F.3d 403, 412-14 (5th Cir. 1999)), but added
that even if the weapons should have been suppressed, their admission was harmless error because
the documents and testimony proved the government’s case. Id. Consequently, a judgment in this
case that the search and seizure was unconstitutional would not necessarily imply the invalidity of
Baranski’s conviction. Cf. Heck, 512 U.S. at 487 n.7 (opining that “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 resulting in the § 1983 plaintiff’s still-outstanding conviction
… [b]ecause of doctrines like … harmless error[.]”) (citations omitted).
         The analysis does not end here, however, because Heck also requires dismissal of a lawsuit
that would necessarily imply the invalidity of Baranski’s sentence or “any outstanding criminal
judgment” against him. Heck, 512 U.S. at 487. The district court entered an order of criminal
forfeiture pursuant to the procedures set forth at 21 U.S.C. § 853 after finding that the guns and
accessories described in the indictment were property used or intended to be used in a manner to
facilitate the commission of the crime for which defendant was convicted. See 26 U.S.C. § 5872(a)
(providing that “[a]ny firearm involved in any violation of the provisions of this chapter shall be
subject to seizure and forfeiture”); 28 U.S.C. § 2461(c) (providing that where forfeiture of property
is authorized by statute but no specific statutory provision is made for criminal forfeiture upon
conviction, the government may include the forfeiture in the indictment and upon conviction, the
court shall order the forfeiture of the property in accordance with the procedures set forth in 21
U.S.C. § 853); 21 U.S.C. § 853 (providing that the court, “in imposing sentence,” shall order
criminal forfeiture as to, inter alia, property used or intended to facilitate the commission of a
crime). The Eighth Circuit affirmed the forfeiture order, holding that the evidence supported the
district court’s finding that the weapons were intended to be used to commit or facilitate the
commission of the charged crime. Baranski, 2003 WL 22176185, at *2 (citing 21 U.S.C.
§ 853(a)(2)).
Nos. 03-5582/5614 Baranski, et al. v. Unknown ATF Agents, et al.                                             Page 13


        Because “[f]orfeiture is an element of the sentence imposed following conviction,” Libretti
v. United States, 516 U.S. 29, 38-39 (1995) (emphasis omitted) (interpreting 21 U.S.C. § 853(a)),4
Baranski seeks to impugn part of his criminal sentence by obtaining an injunction compelling the
return of seized firearms, in direct contravention of the forfeiture order. Accordingly, Heck bars
Baranski’s Bivens claim to the extent he seeks return of the forfeited machine guns.
         Baranski seeks more than just return of the weapons. His complaint requests damages
resulting from the fact that the government’s seizure of the weapons placed him “in an economically
disadvantaged position in relation to his competitors who are directly benefitting from the actions
of the defendants, and the absence of [Baranski] from the marketplace.” (J.A. 22 (Complaint at
¶ 73)); see also id. (“The taking [of Baranski’s machine guns in violation of the Fourth
Amendment], has … impaired plaintiffs’ ability to earn a lawful income from legitimate activities
for which they have been licensed and authorized by the United States Treasury.”); id. at 35 (prayer
for relief at ¶ 5) (seeking general damages of $186,100). He also seeks compensatory damages for,
inter alia, impairment of reputation and mental anguish, as well as punitive damages. See id. at 35
(prayer for relief at ¶ 7) (seeking compensatory damages for impairment of reputation, mental
anguish, lost business opportunity as a result of Defendants’ actions, and loss of use of property);
id. (prayer for relief at ¶ 9) (seeking punitive damages for constitutional violations).
        Heck bars Baranski’s Bivens claim to the extent he seeks damages for the lost economic
value of the weapons, whether measured in terms of their appraised value at the time of the unlawful
seizure or the potential value Baranski could have received for the weapons had he been able to sell
them on the open market at some future time. An award of such damages would directly contravene
the forfeiture order, which is premised on the assumption that Baranski no longer has proper title
to, and therefore no continuing economic interest in, those weapons. The same logic applies to
Baranski’s claim for damages premised on loss of use of the weapons. Because the forfeiture order
determined that Baranski no longer owns the weapons, he cannot seek damages for loss of use of
those weapons without running afoul of Heck.
        Baranski’s request for damages for his injured reputation and mental anguish, as well as his
request for punitive damages, are different matters entirely. An award of such damages would not
necessarily imply the invalidity of the criminal forfeiture order. The government knew about the
existence and location of the forfeited weapons prior to their unlawful seizure from Pars’s
warehouse because Baranski had told ATF Agent Johnson about them during an interview.
Defendants could have sought and obtained an order forfeiting those weapons (as well as Baranski’s
conviction) without seizing the weapons. Accordingly, the validity of the forfeiture order is not
dependent upon the legality of the government’s seizure of those weapons. Cf. One 1958 Plymouth
Sedan v. Commonwealth of Pennsylvania, 380 U.S. 693, 699-703 (1965) (reversing order forfeiting
automobile used to transport untaxed liquor in violation of state law, because search of car
potentially violated the Fourth Amendment and the state could not establish an illegal use of the car
without using evidence resulting from the allegedly unconstitutional search). It follows that a
judgment in this case that Defendants’ seizure of the weapons violated Baranski’s Fourth
Amendment rights would not necessarily imply the validity of the forfeiture order. Further, no Heck
problem arises, as long as Baranski is limited to recovering damages only for injuries that would not
otherwise have arisen from the lawful forfeiture of his weapons. Although he cannot seek the
replacement value of the weapons or lost profits due to his dispossession of the weapons, he can
seek damages for impaired reputation and mental anguish as well as punitive damages attributable
to the means by which Defendants effected the search and seizure. An award of damages for these



         4
         See also FED. R. CRIM. P. 32.2(b)(3) (“At sentencing…the order of forfeiture becomes final as to the defendant
and must be made a part of the sentence and be included in the judgment.”).
Nos. 03-5582/5614 Baranski, et al. v. Unknown ATF Agents, et al.                                  Page 14


injuries would not necessarily imply the invalidity of the forfeiture order, the validity of which is
entirely independent of the method of the search and seizure.
         Although Defendants also raise the Heck bar in opposition to Pars’s Bivens claim, we need
not resort to Heck to the extent Pars seeks the return of the forfeited machine guns. See J.A. 35
(Complaint, prayer for relief at ¶ 3) (requesting an order compelling the return of the machine guns
to Pars’s warehouse). Pars was notified of the forfeiture proceedings in Baranski’s criminal case,
and therefore Pars, as a third party, had the opportunity to assert a legal interest in Baranski’s
firearms and petition the district court for a hearing to adjudicate the validity of its asserted interest.
See FED. R. CRIM. P. 32.2(c)(1); 21 U.S.C. § 853(n)(2). The district court below noted that Pars had
filed a claim of ownership in Baranski’s forfeiture proceedings in the Eastern District of Missouri,
but there is no information in the Joint Appendix indicating what type of information, if any, Pars
submitted to support its claim. Pars could have appealed an adverse decision in the forfeiture
proceedings, separate and apart from Baranski’s right to appeal his criminal conviction and sentence.
E.g., United States v. Harris, 246 F.3d 566, 567 (6th Cir. 2001); see also FED. R. CRIM. P. 32.2(c)(4)
(“An ancillary proceeding is not part of sentencing.”). There is no indication in the record that Pars
ever took such an appeal, and as best as we can tell, the forfeiture order became final, giving the
United States clear title to Baranski’s firearms. FED. R. CRIM. P. 32.2(c)(2); 28 U.S.C. § 853(n)(7).
Thus, Pars’s claim for return of the weapons is foreclosed by operation of the forfeiture statute, and
Pars cannot now bring a collateral cause of action to again lay claim on Baranski’s firearms.
        Pars’s Bivens claim is not limited to a request for the return of the machine guns. Pars’s
complaint also seeks compensatory and punitive damages directly related to the government’s
seizure of those weapons. See J.A. 22 (Complaint at ¶ 73) (“The taking [of Baranski’s machine guns
in violation of the Fourth Amendment], has … impaired plaintiffs’ ability to earn a lawful income
from legitimate activities for which they have been licensed and authorized by the United States
Treasury.”); id. at 35 (prayer for relief at ¶ 5) (seeking general damages of $186,100); id. at 35
(prayer for relief at ¶ 7) (seeking compensatory damages for impairment of reputation, lost business
opportunity as a result of Defendants’ actions, and loss of use of property); id. at 35 (prayer for relief
at ¶ 9) (seeking punitive damages for constitutional violations). Apart from Pars’s asserted
ownership interest in Baranski’s firearms, Pars allegedly had contractual interests connected to those
weapons as a bailee who expected compensation for storing them in its warehouse. Pars also
allegedly had an interest in being free from unlawful governmental intrusions onto their property.
Forfeiture proceedings, however, are not designed to compensate claimants for injuries to these
types of interests. The forfeiture proceedings connected with Baranski’s criminal case could address
only the proper disposition of Baranski’s firearms. See 26 U.S.C. § 5872(a). Pars would not have
been permitted to intervene in those proceedings for any reason other than to stake a claim to those
firearms. See 21 U.S.C. § 853(k)(1) (providing that “no party claiming an interest in property
subject to forfeiture under … may… intervene in a trial or appeal of a criminal case involving the
forfeiture of such property,” other than to assert a legal interest in the property subject to forfeiture).
         The question is whether Heck nevertheless bars Pars’s Bivens claim for compensatory and
punitive damages. Heck involved an action under 42 U.S.C. § 1983 against county prosecutors and
a state police investigator, seeking damages for their allegedly unconstitutional conduct that led to
the plaintiff’s conviction. Heck, 512 U.S. at 479. The Court held that “when a state prisoner seeks
damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff
would necessarily imply the invalidity of his conviction or sentence[.]” Id. at 487 (emphasis added).
The Court added that “if the district court determines that the plaintiff’s action, even if successful,
will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the
action should be allowed to proceed[.]” Id. (emphasis omitted and another emphasis added). The
Court expressed particular concern over affording criminal defendants another opportunity to
collaterally attack their criminal convictions. Id. at 484-85 (“This Court has long expressed …
concerns for finality and consistency and has generally declined to expand opportunities for
Nos. 03-5582/5614 Baranski, et al. v. Unknown ATF Agents, et al.                                               Page 15


collateral attack[.]”) (citations omitted). Pars, however, is not a prisoner or a former prisoner, and
a successful litigation would not demonstrate the invalidity of any outstanding criminal judgment
against Pars. Thus, nothing in Heck contemplates extending the bar against civil damages actions
to third parties like Pars, whose prior criminal judgments are not at issue.
        Moreover, extending Heck to Pars would be fundamentally unfair. As held above,
Defendants searched Pars’s warehouse in reliance on a facially defective search warrant, and their
reliance was not objectively reasonable. Yet, barring Pars’s claim pursuant to Heck would leave
Pars with effectively no remedy for the unconstitutional intrusion. Although the constitutionality
of the search was addressed by the courts of the Eighth Circuit 5in Baranski’s criminal case, Pars had
no opportunity to participate in the resolution of that issue. We are unaware of any statutory
provision that would have afforded Pars the right to intervene in Baranski’s criminal trial in order
to join his suppression motion. Even if Pars had been permitted to intervene, its constitutional
claims for damages against the individual ATF agents could not have been adjudicated in that forum
because the agents were not parties to Baranski’s criminal proceeding. We also question the
efficacy and propriety of trying a criminal action simultaneously with an action for damages. For
these reasons, we hold that Heck does not bar Pars’s Bivens claims for damages against Defendants.

        As a purely factual matter, Pars’s ability to recover damages flowing from the unlawful
seizure of the weapons may be greatly circumscribed. The weapons have been forfeited to the
government, and that criminal judgment is unassailable. Therefore, to the extent Pars seeks damages
for loss of use of the weapons or lost storage costs attributable to their unlawful seizure, Pars’s
recovery is temporally limited by the inevitable (lawful) forfeiture of those weapons. Pars also can
seek compensatory damages for alleged injuries to its reputation and any other financial injury that
flowed from the unlawful seizure, as long as the injuries can be distinguished from harm it inevitably
would have suffered due to the subsequent, lawful forfeiture of Baranski’s weapons. Like Baranski,
Pars may also seek punitive damages against Defendants for the manner in which they executed the
search and seizure. Given the state of the record, we express no opinion as to whether Pars or
Baranski ultimately will be able to marshal sufficient evidence to prove a compensable injury or
even to create a genuine issue of material fact that they suffered a compensable injury. They may
be entitled only to an award of nominal damages for their constitutional injuries. Those are issues
best left to the district court on remand.
        Finally, we acknowledge that our holding today on the Fourth Amendment issue appears to
be at odds with the Eighth Circuit’s holding on the same set of operative facts. Should Plaintiffs
proceed to trial and prevail, Defendants (in their individual capacities) would be found to have
flouted the Fourth Amendment, even though they (in their official capacities) previously were found
to have acted lawfully. We would note, however, that at the time the Eighth Circuit rendered its
decision in Baranski, it did not have the benefit of the Supreme Court’s Groh decision. In any event,
this Court’s holding in the instant case is preferable to the alternative of leaving individuals and
property owners who have suffered a patently unconstitutional intrusion without any remedy. We
therefore hold that an action for damages, as circumscribed above, would not necessarily
demonstrate the invalidity of any criminal judgment and, consequently, is not barred by Heck.




         5
           Conceivably, the prejudice to Pars would be even more severe if Baranski’s criminal counsel had been
ineffective, such as by failing to advance colorable arguments concerning the constitutionality of the search and seizure.
Indeed, if Baranski’s attorney had failed to contest the search and seizure, the Fourth Amendment issue would not have
been litigated at all.
Nos. 03-5582/5614 Baranski, et al. v. Unknown ATF Agents, et al.                           Page 16


                                                IV.
        For all the foregoing reasons, we REVERSE the district court dismissal of Plaintiffs’ Bivens
claims on qualified immunity grounds; AFFIRM the dismissal of Plaintiffs’ Bivens claims to the
extent they seek (a) return of the firearms that were forfeited after Baranski’s criminal conviction
or (b) damages attributable to the inevitable, lawful forfeiture of those firearms; and REVERSE the
order of dismissal with respect to Plaintiffs’ claims for compensatory damages that arose from
Defendants’ unlawful search and seizure, but that were not otherwise an inevitable result of the
subsequent forfeiture. We also REVERSE the dismissal of Plaintiffs’ claims for punitive damages.
Nos. 03-5582/5614 Baranski, et al. v. Unknown ATF Agents, et al.                                              Page 17


                       ________________________________________________
                         CONCURRING IN PART, DISSENTING IN PART
                       ________________________________________________
         COOK, Circuit Judge, concurring in part and dissenting in part. Because I agree with the
district court that qualified immunity supports dismissal of all plaintiffs’ claims, I respectfully
dissent from those portions of the majority’s opinion that reverse the district court.
       Even if the majority is correct in its conclusion that the warehouse search violated the Fourth
Amendment in light of Groh v. Ramirez, I nevertheless maintain that Sixth-Circuit precedent
sanctioning similar searches entitles the agents here to qualified immunity.
        In Groh, the warrant neither described the items to be seized, nor cross-referenced a
document that described those items. 540 U.S. 551, 554–55 (2004). Thus, the agents had no basis
to believe the warrant was valid.
           Here, by contrast, the agents performed their search under a warrant cross-referencing a
sealed affidavit—a practice this court has previously deemed reasonable. United States v. Pritchett,
40 Fed. Appx. 901, 907 (6th Cir. 2002); see also Frisby v. United States, 79 F.3d 29, 32 (6th Cir.
1996) (“The Fourth Amendment does not necessarily require that government agents serve a
warrant, or an attachment thereto, prior to initiating a search or seizing property.”); United States
v. Gahagan, 865 F.2d 1490, 1497 (6th Cir. 1989) (“[I]f the description contained in the warrant itself
is inadequate, ‘it is appropriate to look to the description appearing in the warrant application or
affidavit if it is clear that the executing officers were in a position to be aided by the document
. . . .’”) (quoting 2 W. LaFave, Search and Seizure § 4.5(a) at 209 (2d ed. 1987)). Even if Groh casts
doubt on Pritchett’s result, the fact that a unanimous panel of this court reached that result
establishes that the ATF agents’ actions here did not violate “clearly established statutory or
constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982).
        When faced with the question now before this court, the Third Circuit held that a district
court erred when it denied an officer qualified immunity. The court explained:
         Thus, while it was “clearly established” that warrants must be particular, the
         narrower and more appropriate question, i.e. whether it was clearly established that
         one has a constitutional right to be free from a search pursuant to a warrant based
         upon a sealed list of items to be seized, has not heretofore been answered, at least in
         those terms.
Bartholomew v. Pennsylvania, 221 F.3d 425, 429 (3d Cir. 2000).
       The Fifth Circuit reached the same conclusion in the context of affirming the denial of a
motion to suppress. In United States v. Cherna, the court held that because it was “not entirely clear
from circuit precedent that the affidavit must be physically attached to the warrant or served on the
defendant,” the officers who executed the warrant could “reasonably rely on the magistrate judge’s
issuance of the warrant, even though he1 simultaneously sealed the affidavit on which it was based.”
184 F.3d 403, 412–13 (5th Cir. 1999).


         1
           Although Cherna involved the application of the good-faith exception to the exclusionary rule, its holding is
relevant to the civil case presented here because “‘the same standard of objective reasonableness that we appl[y] in the
context of a suppression hearing in Leon defines the qualified immunity accorded an officer.’” Groh, 540 U.S. at 565
n.8 (quoting Malley v. Briggs, 475 U.S. 335, 344 (1986)).
Nos. 03-5582/5614 Baranski, et al. v. Unknown ATF Agents, et al.                           Page 18


        The case for qualified immunity is even stronger here than in Bartholomew or Cherna
because this court’s opinion in Pritchett explicitly approved a search executed under a warrant that
cross-referenced a sealed affidavit. I would therefore affirm the district court’s order dismissing
plaintiffs’ complaints.
