OWEN, Circuit Judge:
Holly Bush appeals an adverse summary judgment on her excessive force
Bush seeks damages for injuries she sustained after she was arrested for simple battery and resisting arrest following a disturbance at a Mandeville, Louisiana car wash. Bush contends that the arresting officer, Detective Dale Galloway, injured her by intentionally and unreasonably pushing her head into the rear window of an automobile after she was arrested, handcuffed, and compliant. The officer contends that Bush was unintentionally injured when he tried to subdue her as she resisted arrest. Bush was subsequently
There is little dispute about what occurred in this case up to the point of Bush's arrest. By all accounts, Detective Galloway was interviewing a witness when Bush walked up and greeted him. Bush overheard the witness make a comment about Bush's sister, became enraged, and threw a cup of ice water at the witness. Galloway then attempted to arrest Bush for simple battery, and when Bush was partially handcuffed, she pulled her right arm away in an apparent attempt to hit or intimidate the witness. It is at this point that the parties' versions of events diverge concerning the duration of Bush's resistance and the cause of her injuries.
Galloway testified both in his civil deposition and at Bush's resisting arrest trial that Bush continued resisting arrest while he attempted to cuff her right hand and, through Bush's attempts to get free, they both fell onto the rear window of a nearby vehicle. Galloway's testimony is corroborated in this lawsuit by his co-defendant, Detective Ronald Plaisance, who testified in his civil deposition that he arrived at the scene during the incident and witnessed Bush pull away from Galloway and collide with the vehicle while Galloway was attempting to restrain her, Both detectives assert that Plaisance had to help Galloway restrain Bush and cuff her right hand. Plaisance did not testify in the criminal proceeding.
Although Bush initially claimed that she never resisted arrest, she admitted in her deposition that she pulled away from Galloway when he attempted to arrest her. She contends, however, that she stopped resisting after Galloway grabbed her right hand and that, after she ceased her resistance and both hands were cuffed, Galloway placed his hand behind her neck and head and forced her face into the rear window of a nearby vehicle, injuring her jaw and breaking two of her teeth. Bush states that Plaisance did not assist Galloway with the arrest, but witnessed this event and helped Galloway fabricate a story to cover up the use of excessive force. Bush's version of events is corroborated by affidavits from two witnesses, Lindsay Burga and Amy Huber. Burga also testified at Bush's criminal trial.
Bush sued Galloway and Plaisance under 42 U.S.C. § 1983 for excessive force, illegal arrest, and conspiracy. She also sued Galloway and Plaisance's employer, Sheriff Strain, based on respondeat superior liability under Louisiana law. The parties consented to proceed before a magistrate judge, and the civil case proceeded contemporaneously with a state criminal case against Bush for simple battery and resisting arrest. Bush was ultimately convicted of resisting arrest and acquitted on the battery charge.
Following Bush's resisting arrest conviction, the defendants moved for summary judgment, principally arguing that Bush's claims are barred under Heck v. Humphrey because a favorable outcome on that claim would render her resisting arrest conviction invalid. Alternatively, they argued that they were entitled to qualified immunity on the excessive force claim. The defendants did not separately challenge Strain's respondeat superior liability or the conspiracy claim. In response, Bush abandoned her illegal arrest claim based on the outcome of the criminal proceeding, but she asserted that there were unresolved fact issues bearing on both the Heck and qualified immunity issues. The magistrate judge determined that Heck
On appeal, Bush's legal position is basically unchanged, but she conceded at oral argument that there is no viable excessive force claim against Plaisance. The defendants continue to assert that Heck bars Bush's claims and that they are entitled to qualified immunity as a matter of law.
We review a summary judgment de novo, viewing the evidence in the light most favorable to the non-movant,
It is well settled under Heck that a plaintiff who has been convicted of a crime cannot recover damages for an alleged violation of his constitutional rights if that "violation arose from the same facts attendant to the charge for which he was convicted, unless he proves `that his conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus.'"
We applied this analytical construct in Ballard v. Burton, in which we held that a plaintiff's excessive force claim was conceptually distinct from his simple assault conviction and "could easily coexist with [the plaintiff's] conviction for simple assault . . . without calling into question any aspect of that conviction."
As Ballard illustrates, a § 1983 claim would not necessarily imply the invalidity of a resisting arrest conviction, and therefore would not be barred by Heck, if the factual basis for the conviction is temporally and conceptually distinct from the excessive force claim. Accordingly, a claim that excessive force occurred after the arrestee has ceased his or her resistance would not necessarily imply the invalidity of a conviction for the earlier resistance.
Bush was convicted of resisting arrest under LA REV.STAT. § 14:108. The defendants do not assert that an excessive force claim could never be maintained consistently with a conviction under this statute because of the elements of the crime or the existence of any defense to the crime.
In rendering judgment, however, the state-court judge issued very narrow fact findings:
To sustain the conviction, the judge determined only that Bush swung out toward the witness after Galloway told her that she was under arrest. The court made no findings regarding how long Bush's resistance lasted or at what point Bush was injured. Furthermore, a review of the trial transcript reveals that the judge determined that the duration of resistance and the cause of Bush's injuries was irrelevant to the determination of whether she had resisted arrest. These are material, disputed facts pertinent to her excessive force claim that were not necessary to sustain Bush's resisting arrest conviction.
The defendants also argue, albeit inartfully, that Bush's complaint does not allege that her claims of excessive force are separable from the events underlying her resisting arrest conviction. Specifically, the defendants point to the statement in Bush's complaint that "[a]t no time did the plaintiff resist her arrest." If we were to take this statement at face value, we might agree with the defendants.
We also disagree with the defendant's contention, and the magistrate judge's conclusion, that Bush has attempted to manufacture a fact issue through the use of an affidavit that contradicts prior sworn testimony. At Bush's criminal trial, Lindsay Burga testified that Bush swung out as she was being handcuffed, but after she was handcuffed Galloway "pushed her head forcefully against [the] car." The state-court judge sustained a relevancy objection
Because Bush has produced evidence that the alleged excessive force occurred after she stopped resisting arrest, and the fact findings essential to her criminal conviction are not inherently at odds with this claim, a favorable verdict on her excessive force claims will riot undermine her criminal conviction. The magistrate judge's contrary conclusion was erroneous.
Below, defendants raised qualified immunity as an alternate basis for dismissal, but the magistrate judge did not consider whether the defendants were entitled to prevail on that defense to Bush's excessive force claim. Nonetheless, on appeal, Bush argues the qualified immunity defense should fail. The defendants argue the issue is not before this court and, without addressing Bush's arguments, merely assert the evidence supports the defense. Since we could affirm summary judgment on this alternate ground if it had merit,
A government official performing discretionary functions is entitled to qualified immunity unless his conduct violates clearly established statutory or constitutional rights of which a reasonable person would have known.
Under the first step, to state a violation of the Fourth Amendment prohibition
Here, Bush has satisfied the first step. Under the version of events alleged by Bush and two witnesses, Burga and Amy Huber, Galloway forcefully slammed Bush's face into a vehicle when Bush was handcuffed and subdued. There is also evidence that, as a result of Galloway's actions, Bush sustained injuries to her face, teeth and jaw and incurred significant medical expenses. Thus, Bush has alleged injuries, resulting directly and solely from force that was excessive to the need and objectively unreasonable under the circumstances.
At the second step of the immunity inquiry, the court considers whether the officer's use of force, though a violation of the Fourth. Amendment, was nevertheless objectively reasonable in light of clearly established law at the time the challenged conduct occurred.
At the time of Bush's arrest, the law was clearly established that although the right to make an arrest "`necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it,'"
We hold that Bush's excessive force claim is conceptually distinct from the facts underlying her criminal conviction and, thus, is not barred by Heck. We also hold that the defendants have not established that they are entitled to qualified immunity. Because the defendants did not separately move for summary judgment on the conspiracy and respondeat superior claims, we REVERSE the summary judgment and REMAND for further proceedings except for the excessive force claim against Plaisance, which is AFFIRMED.
AFFIRMED IN PART AND REVERSED AND REMANDED IN PART.