Timothy Johnson v. Michael Rogers ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-1366
TIMOTHY JOHNSON,
Plaintiff-Appellant,
v.
MICHAEL ROGERS,
Defendant-Appellee.
____________________
Appeal 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.
____________________
ARGUED NOVEMBER 6, 2019 — DECIDED DECEMBER 17, 2019
____________________
Before EASTERBROOK, MANION, and BARRETT, Circuit Judg-
es.
EASTERBROOK, Circuit Judge. In October 2014 Timothy
Johnson showed up drunk for an appointment at a rehab
clinic. After he threatened a therapist and the clinic’s securi-
ty 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.
2 No. 19-1366
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.
Despite 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 re-
turned 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 frac-
ture of one leg. He contends that this resulted from a kick
designed to punish him rather than to return him to a sicing
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 distin-
guish these possibilities with confidence.
Johnson 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, be-
cause 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
No. 19-1366 3
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.
The district court’s two reasons for ruling against John-
son—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. SchoA, 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-macer 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.
Heck concludes that a person cannot use §1983 to collect
damages on a theory irreconcilable with a conviction’s valid-
ity, 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
4 No. 19-1366
used at the time of arrest would be inconsistent with John-
son’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 succes-
sors, such as Mordi v. Zeigler, 870 F.3d 703 (7th Cir. 2017),
and Hill v. Murphy, 785 F.3d 242 (7th Cir. 2015).
Any given plaintiff may choose to rest an excessive-force
claim wholly on a contention that the police acacked an in-
nocent 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.
The 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 vio-
lated the Constitution. See Escondido v. Emmons, 139 S. Ct.
500 (2019) (citing many other decisions). Johnson observes
No. 19-1366 5
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, however.
The principle “do not use excessive force” is clearly es-
tablished 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 con-
crete 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).
Many 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) (qual-
ified 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 procedure).
Any takedown can go awry—some suspects fall clumsi-
ly, 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 objec-
tive; a court asks whether the force used was reasonable, not
6 No. 19-1366
whether things turned out badly. See, e.g., Kelsay, 933 F.3d
975 (suspect suffered a broken collarbone); Hogan v. Cun-
ningham, 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 which the suspect suffered a brain inju-
ry). See also Dockery v. Blackburn, 911 F.3d 458, 468–69 (7th
Cir. 2018), which discusses the need for a margin of error in
arrest procedures.
Rogers would like us to stop here. He took down a sus-
pect who violated instructions to stay on the ground and
who started to move away. That Johnson suffered a com-
pound fracture is regrecable but does not make any consti-
tutional violation clearly established, Rogers maintains.
If it were beyond debate that all Rogers did was sweep a
leg behind Johnson to cause him to topple backward, that
would be so. Yet, as we mentioned earlier, the video is not
wholly clear. Johnson describes what Rogers did as a swift
kick to his leg, not as a leg sweep.
A conclusive video allows a court to know what hap-
pened and decide the legal consequences. See ScoA v. Harris,
550 U.S. 372, 380, 386 (2007). The video we have, however,
does not unambiguously establish what Rogers did. On an
interlocutory qualified-immunity appeal, a court must not
resolve disputed issues of material fact. See Johnson v. Jones,
515 U.S. 304 (1995); Stinson v. Gauger, 868 F.3d 516 (7th Cir.
2017) (en banc).
Still, we think that the video does show two things be-
yond reasonable question. First, Rogers did not kick Johnson
No. 19-1366 7
or otherwise harm him after he was on the ground. Second,
Rogers used his legs to undermine Johnson’s balance and
force him down. Because the video is grainy, and both John-
son and Rogers were moving at the critical moment, we can-
not be sure just how the injury occurred. It looks like Rogers
tried to use a knee to unbalance Johnson, and, when that did
not work, used his foot—but whether Johnson’s foot motion
was an effort to trip Johnson or a kick to the lower shin (or
perhaps the foot) is not possible to discern.
Taking the facts in the light most favorable to Johnson, a
jury could conclude that Rogers delivered a kick. And there
is no doubt that an unnecessary kick, after a suspect is under
control, violates the suspect’s clearly established rights. On-
the-spot punishment, not reasonably adapted to obtain or
keep control, violates the Fourth Amendment (and perhaps
other rules as well). See, e.g., Jones v. Buchanan, 325 F.3d 520
(4th Cir. 2003) (no qualified immunity for a throw-down
takedown accompanied by kneeing a suspect’s soon-to-be-
broken nose into the floor); Cowart v. Erwin, 837 F.3d 444 (5th
Cir. 2016) (no qualified immunity for officers who punched,
pepper sprayed, and kicked an inmate until he passed out,
resulting in a neck sprain and a ruptured eardrum); Martin
v. Broadview Heights, 712 F.3d 951 (6th Cir. 2013) (no qualified
immunity for a tackle takedown accompanied by punches
and a neck-grip-leg-wrap grappling move); Smith v. Troy,
874 F.3d 938 (6th Cir. 2017) (no qualified immunity for a leg-
sweep takedown followed by eight Taser bolts); Morrison v.
Green Township, 583 F.3d 394 (6th Cir. 2009) (no qualified
immunity for a tackle takedown accompanied by repeatedly
grinding the face of a teenager into the ground); Coble v.
White House, 634 F.3d 865 (6th Cir. 2011) (no qualified im-
munity for a takedown that resulted in an open ankle frac-
8 No. 19-1366
ture on which the officer made a verbally abusive suspect
walk before dropping him on his face); Holmes v. Hoffman Es-
tates, 511 F.3d 673 (7th Cir. 2007) (no qualified immunity for
a wristlock and throw-down followed by a face grind for a
suspect who pulled his arms away); Karels v. Storz, 906 F.3d
740 (8th Cir. 2018) (no qualified immunity for slamming a
disagreeable drunk into concrete steps).
What resolves this appeal in Rogers’s favor is this: John-
son, who had told the officers that he wanted to run away,
was not under control when Rogers tried to use his knee to
unbalance Johnson, who remained on his feet until Rogers
took a further step. If that further step is best understood as
a kick, it must also be understood as an acempt to regain
control. That such an acempt causes injury, perhaps because
poorly executed, does not lead to liability.
Nor does the possibility that Rogers had two things in
mind: regaining control and punishing Johnson for abusive
language. Graham holds that the excessive-force inquiry is
objective. If the force used was objectively allowable, the
officer’s state of mind can’t make it unconstitutional. Lester v.
Chicago, 830 F.2d 706, 712 (7th Cir. 1987).
Taking the events as the video depicts them, the district
court properly found that Rogers is entitled to qualified im-
munity.
AFFIRMED