November 6, 2019
from the United States District Court for the Southern
District of Indiana, Indianapolis Division. No.
1:16-cv-02705-JMS-MPB - Jane Magnus-Stinson, Chief Judge.
EASTERBROOK, MANION, and BARRETT, Circuit Judges.
EASTERBROOK, CIRCUIT JUDGE.
October 2014 Timothy Johnson showed up drunk for an
appointment at a rehab clinic. After he threatened a
therapist and the clinic's security guard, the clinic
called the police. Two officers arrested and handcuffed
Johnson. When he told them that he would run away, they sat
him on the pavement next to a patrol car. What happened next
led to this suit under 42 U.S.C. §1983. The events we
describe were captured on video. The video lacks a sound
track, but the officers' descriptions about what Johnson
said are uncontested, because he was too inebriated to
remember much about the encounter.
being cuffed behind his back, Johnson managed to stand. The
officers walked him backward about 10 feet and sat him down
on a patch of grass. They returned to their cars to do some
paperwork. In about a minute Johnson got to his knees and
managed to stand again. He started to move away, shouting
threats and racial taunts. Officer Rogers returned and pulled
Johnson backward by his cuffed hands. When that did not
return him to the ground, Rogers tried a different means.
Johnson fell and suffered a compound fracture of one leg. He
contends that this resulted from a kick designed to punish
him rather than to return him to a sitting position; Rogers
contends that he used a leg sweep (in other words, tripped
Johnson to force him backward) rather than a kick. The grainy
video does not enable a viewer to distinguish these
possibilities with confidence.
contends that Rogers violated the Fourth Amendment (applied
to state actors via the Fourteenth) by using unreasonable
force during the encounter. See Graham v. Connor,
490 U.S. 386 (1989). The district court granted summary
judgment for the officers, giving two reasons. 2019 U.S.
Dist. LEXIS 6961 (S.D. Ind. Jan. 15, 2019). First, the judge
concluded that Rogers is entitled to qualified immunity,
because the procedure that led to Johnson's broken leg
did not violate any of his clearly established rights.
Second, the judge wrote that, because Johnson pleaded guilty
in state court to resisting arrest, Heck v.
Humphrey, 512 U.S. 477 (1994), bars any claim under the
Fourth Amendment while the judgment of conviction stands. The
district court also ruled in defendants' favor on
Johnson's federal claim against the City of Indianapolis
and its Chief of Police, and his state-law claims against all
three defendants. Those additional claims have been abandoned
on appeal, and we have amended the caption accordingly.
district court's two reasons for ruling against
Johnson-qualified immunity and Heck-are
incompatible. A suit barred by the doctrine of Heck
is premature and must be dismissed without prejudice, because
Heck holds that the claim does not accrue until the
conviction has been set aside. See Morgan v. Schott,
914 F.3d 1115, 1122 (7th Cir. 2019); Moore v. Burge,
771 F.3d 444, 446 (7th Cir. 2014). By contrast, a claim
barred by the doctrine of qualified immunity fails on the
merits and must be dismissed with prejudice. Here the
district court dismissed with prejudice, an inappropriate
step when Heck governs. It is possible to bypass
Heck and address the merits-after all, Heck
concerns timing rather than subject-matter jurisdiction. See
Polzin v. Gage, 636 F.3d 834, 838 (7th Cir. 2011).
But the district court did not bypass Heck. Relying
on it, the court concluded that suit had been filed too soon,
and a premature suit must be dismissed without prejudice. We
therefore start with Heck to determine whether it is
appropriate to consider immunity at all.
concludes that a person cannot use §1983 to collect
damages on a theory irreconcilable with a conviction's
validity, unless that conviction has been set aside. (Whether
this rule extends past the end of imprisonment is a subject
before the en banc court in Savory v.
Cannon, No. 17-3543 (argued Sept. 24, 2019). We assume
for current purposes that it does.) Defendants contend that
any recovery for excessive force used at the time of arrest
would be inconsistent with Johnson's conviction for
resisting arrest. Yet Wallace v. Kato, 549 U.S. 384
(2007), holds that a claim of wrongful arrest may proceed
even if a person has been convicted of the offense that led
to the arrest. Whether the police had probable cause to
arrest is distinct from the question whether a criminal
conviction, on a different factual record or a guilty plea,
is valid. Likewise when the arrested person contends that the
police used excessive force. The propositions "the
suspect resisted arrest" and "the police used too
much force to effect the arrest" can be true at the same
time. And so we held in Evans v. Poskon, 603 F.3d
362 (7th Cir. 2010), and its successors, such as Mordi v.
Zeigler, 870 F.3d 703 (7th Cir. 2017), and Hill v.
Murphy, 785 F.3d 242 (7th Cir. 2015).
given plaintiff may choose to rest an excessive-force claim
wholly on a contention that the police attacked an innocent
bystander, who did not try to fend them off. Then a
conviction for resisting arrest would be inconsistent with an
award of damages for the arrest. See Okoro v.
Callaghan, 324 F.3d 488 (7th Cir. 2003). Johnson,
however, does not deny that he tried to obstruct the police
from maintaining custody after his arrest. He contends only
that Rogers used force that was unreasonable in relation to
the nature of his obstruction. This contention can be
resolved in Johnson's favor without casting any doubt on
the validity of his conviction. It follows that Heck
does not block this suit.
qualified-immunity topic is more difficult. Public officials
are entitled to immunity unless, by the time of the contested
acts, it was clearly established that those acts violated the
Constitution. See Escondido v. Emmons, 139 S.Ct. 500
(2019) (citing many other decisions). Johnson observes that
it has been clearly established at least since
Graham (1989) that using excessive force to make an
arrest violates the Fourth Amendment. That's not enough,
principle "do not use excessive force" is clearly
established but does not tell an officer what kinds of force,
in which situations, are excessive and therefore
does not negate immunity. Emmons illustrates the
point by holding, first, that "do not use unreasonable
force" does not establish any concrete rule
"clearly" and, second, that an officer is entitled
to immunity for a takedown that enables the officer to
control a suspect during an arrest. Only when precedent
places the invalidity of a particular action beyond debate
may damages be awarded. Emmons, 139 S.Ct. at 504,
quoting from District of Columbia v. Wesby, 138
S.Ct. 577 (2018).
decisions hold that there is no clearly established rule
forbidding a clean takedown to end mild resistance of the
sort that Johnson displayed. See, e.g., Kelsay v.
Ernst, 933 F.3d 975 (8th Cir. 2019) (qualified immunity
for a bear-hug takedown when an angry suspect walked away
from the officer for the second time); Shafer v. Santa
Barbara, 868 F.3d 1110 (9th Cir. 2017) (qualified
immunity for a leg-sweep takedown when the intoxicated
suspect tried to pull away); Hedgpeth v. Rahim, 893
F.3d 802 (D.C. Cir. 2018) (qualified immunity for an arm
takedown accompanied by a knee to the rear of the leg of a
suspect who had pulled his hands away from the cuffing
takedown can go awry-some suspects fall clumsily, while
others have fragile bones-but, if the officers use steps
reasonably likely to effect a clean takedown, an injury does
not lead to liability. Assessment under Graham is
objective; a court asks whether the force used was
reasonable, not whether things turned out badly. See, e.g.,
Kelsay,933 F.3d 975 (suspect suffered a broken
collarbone); Hogan v. Cunningham,722 F.3d 725 (5th
Cir. 2013) (qualified immunity for a tackle takedown in which
officer landed awkwardly on suspect, causing two broken
ribs); Becker v. Bateman,709 F.3d 1019 (10th Cir.
2013) (qualified immunity for a clean throw-down takedown in