uncontested and pointed to her deposition testimony that she had not resisted, defendants replied that Heck precluded DuFour-Dowell from denying that she had resisted arrest by pushing, kicking, and wrestling Morgan.
At the time defendants moved for summary judgment, they knew that DuFour-Dowell had testified that she had not offered resistance to her arrest. Therefore, it is questionable whether mere assertion in the Rule 12(M) Statements that her resistance was uncontested because of her conviction would be sufficient to preserve the Heck issue absent any legal argument in the opening brief.
But even assuming the Heck argument was not waived, defendants' reliance on Heck is misplaced.
In Heck, 512 U.S. at 486, the Supreme Court stated: "in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose lawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been" invalidated. As an example of such a situation, the Supreme Court stated that pursuing a damages claim based on an unlawful arrest would be inconsistent with a conviction for resisting arrest if lawfulness of the arrest was a necessary element of the criminal offense. See id. at 486 n.6. The Supreme Court further stated that "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. An example of a claim that would not necessarily imply invalidity of the conviction is a claim based on an unreasonable search that produced evidence used in the prosecution of the criminal charge because doctrines such as independent source, inevitable discovery, and harmless error may permit use of the evidence in the criminal case despite there being an unlawful search. See id. at 487 n.7. In Booker, 94 F.3d at 1056, the Seventh Circuit held that a claim for unlawful arrest would not necessarily imply the invalidity of a conviction, even if it might preclude admission of a confession, because there could be other evidence of the defendant's criminal conduct.
In DuFour-Dowell's criminal prosecution, the jury was instructed that one element of the resisting arrest charge was that "the defendant knowingly resisted or obstructed the performance by Deputy Morgan of an authorized act within his official capacity." Tr. 188 (Cogger Exh. 4). There was no instruction that the jury had to find that DuFour-Dowell kicked, pushed, punched, or wrestled either officer. The jury was also instructed: "A person is not authorized to use force to resist an arrest which he knows is being made by a peace officer, even if he believes that the arrest is unlawful and the arrest in fact is unlawful." Id. at 188-89. There was no instruction that excessive force on a police officer's part would be a defense to a resisting arrest charge.
In closing arguments, the prosecution contended DuFour-Dowell resisted arrest by backing away from the door, attempting to close the door, kicking Morgan, locking her arms to prevent being handcuffed, pushing away, pulling away, kicking, wrestling, and by indicating she did not want to go with the officers. Id. at 158-59. The jury was not required to specify on what basis it found DuFour-Dowell guilty of resisting arrest. The jury did not have to find that DuFour-Dowell physical resisted or retaliated when knocked to the ground. There were other actions on which the jury could have based its verdict. Also, the jury found DuFour-Dowell not guilty of battery of Morgan. Moreover, even while resisting an arrest, an arrestee can be subjected to force excessive for the situation. See Crooms v. P.O. Mercado, No. 41, 955 F. Supp. 985, 991 (N.D. Ill. 1997). See also Bemben v. Hunt, 1995 U.S. Dist. LEXIS 725, 1995 WL 27223 *3 (N.D. Ill. Jan. 23, 1995).
Defendants contend that self-defense to excessive force is a defense to resisting arrest, see People v. Williams, 267 Ill. App. 3d 82, 640 N.E.2d 981, 985-86, 203 Ill. Dec. 831 (2d Dist. 1994), and therefore a finding of excessive force would necessarily be inconsistent with DuFour-Dowell's conviction. The jury, however, could have found that the conduct at the door, which preceded any possible excessive force, constituted resisting arrest. The jury also could have found that the acts of resisting arrest occurred subsequent to and not in direct relation to any excessive force. Cf. McNew v. Pleasant, 1992 U.S. Dsit. LEXIS 10108, 1992 WL 162255 *3 (N.D. Ill. July 6, 1992). Under either circumstance, self-defense to excessive force would not have been a defense to the conviction.
Under the facts of the present case, a finding of excessive force is not necessarily inconsistent with the validity of DuFour-Dowell's resisting arrest conviction. Heck does not bar DuFour-Dowell's excessive force claim.
Heck is not a doctrine of res judicata or collateral estoppel. See Powers v. Sickler, 1995 U.S. Dist. LEXIS 4735, 1995 WL 146272 *4 (N.D.N.Y. March 31, 1995); Olsen v. Correiro, 1994 U.S. Dist. LEXIS 13803, 1994 WL 548111 *6 (D. Mass. Sept. 26, 1994); Canatella v. City of San Francisco, 1994 U.S. Dist. LEXIS 11681, 1994 WL 456873 *1-2 & nn.5,7 (N.D. Cal. Aug. 12, 1994), aff'd by unpublished order, 74 F.3d 1245 (9th Cir. 1996). See also Heck, 512 U.S. at 480 n.2. Heck only applies in determining whether particular claims for damages are cognizable. State law controls as to any res judicata or collateral estoppel effect. Heck, 512 U.S. at 480 n.2. Defendants' contentions also seem to be in the nature of collateral estoppel or issue preclusion. They apparently contend DuFour-Dowell should be barred from denying she offered any resistance whatsoever even if she still contends that the force used was an excessive reaction to the resistance offered.
Illinois law is not entirely clear as to the application of collateral estoppel when the prior judgment is a criminal conviction. See Smith v. Sheahan, 959 F. Supp. 841 (N.D. Ill. 1997) (extensively discussing the existing precedents). When used defensively in a § 1983 action, the collateral estoppel effect of a criminal conviction has been limited to being prima facie evidence, not conclusive evidence. See Calusinski v. Kruger, 24 F.3d 931, 934 (7th Cir. 1994); Brown v. Green, 738 F.2d 202, 206 (7th Cir. 1984); Smith, 959 F. Supp. at 843, 846-47. The Illinois cases appear to support a rule that the closer the correlation between the facts and law of the criminal and civil cases, the more likely it is that a preclusive effect will be accorded to the conviction. See Smith, 959 F. Supp. at 846-47. Here, the circumstances of the criminal conviction do not permit a determination as to the pertinent facts found by the jury. It cannot be known what conduct of DuFour-Dowell the jury found constituted resistance. Under those circumstances, the conviction certainly cannot be accorded a preclusive effect in the present case and it is questionable as to whether it would even be proper as prima facie evidence that DuFour-Dowell offered some sort of resistance. What is the jury in the present case to understand such resistance to be? That issue, though, need not be presently resolved. It is more appropriately resolved on a properly briefed motion in limine filed with the final pretrial order. For present summary judgment purposes, even assuming the conviction is admissible as prima facie evidence, it would still have to be assumed that the finder of fact would instead choose to accept the contrary evidence that DuFour-Dowell offers. Therefore, the question still is whether DuFour-Dowell presents sufficient evidence from which a finder of fact could conclude that the officers' use of force was excessive under the circumstances.
In evaluating whether the force employed by defendants
was excessive, an "objective reasonableness" standard is applied. Lanigan v. Village of East Hazel Crest, Ill., 110 F.3d 467, 475 (7th Cir. 1997).
Claims that a law enforcement officer used excessive force in the course of an arrest, investigatory stop, or other seizure are analyzed under the Fourth Amendment's objective reasonableness standard which requires the court to balance "'the nature and quality of the intrusion on the individual's Fourth Amendment interests' against the countervailing governmental interests at stake." Graham v. Connor, 490 U.S. 386, 395-96, 104 L. Ed. 2d 443, 109 S. Ct. 1865 (1989) (quoting Tennessee v. Garner, 471 U.S. 1, 8, 85 L. Ed. 2d 1, 105 S. Ct. 1694 (1985)); see also Jones v. Webb, 45 F.3d 178, 183 (7th Cir. 1995). The right of a law enforcement officer to make an arrest "necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it." Graham, 490 U.S. at 396. The question that regularly confronts us in these cases is precisely how much force will be considered "objectively reasonable." That, of course, depends on the facts and circumstances of each case, but we generally look to the "severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether [the suspect] is actively resisting arrest or attempting to evade arrest by flight." Id.; see also Clash v. Beatty, 77 F.3d 1045, 1047 (7th Cir. 1996). We must consider the circumstances confronting the officer not through "the 20/20 vision of hindsight," but through the more immediate perspective of a reasonable officer on the scene. Graham, 490 U.S. at 396. As Graham explained:
Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates the Fourth Amendment. The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments--in circumstances that are tense, uncertain, and rapidly evolving--about the amount of force that is necessary in a particular situation.