Havens v. Johnson
| Decision Date | 15 April 2015 |
| Docket Number | No. 14–1118.,14–1118. |
| Citation | 783 F.3d 776 |
| Parties | Darrell L. HAVENS, Plaintiff–Appellant, v. William JOHNSON, Defendant–Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Edward LaBarre, Sausalito, CA (Kim Welch, William Muhr, LLP, Colorado Springs, CO with him on the briefs), for Plaintiff–Appellant.
David R. DeMuro, Vaughan & DeMuro, Denver, CO (Shelby A. Felton, Vaughan & DeMuro, Denver, CO, Christopher K. Daly, City Attorney, Roberto Ramirez, Senior Assistant City Attorney, City of Arvada, Arvada, CO, with him on the brief), for Defendant–Appellee.
Before HARTZ, MATHESON, and MORITZ, Circuit Judges.
Plaintiff Darrell Havens pleaded guilty in Colorado state court to attempted assault of Detective William Johnson. He then brought suit in federal district court under 42 U.S.C. § 1983, alleging that Johnson used excessive force in violation of the Fourth Amendment. The district court granted Johnson's motion for summary judgment, ruling that Havens failed to establish a prima facie case of excessive force and that Johnson was entitled to qualified immunity. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm on the alternative ground that Havens's claim is barred under the Supreme Court decision of Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), because he has not explained how Johnson used excessive force in a way that would still be consistent with the basis of his attempted-assault conviction.
In January 2007 the Denver Metro Auto Theft Team Task Force planned a sting operation to arrest Havens, who had arranged to deliver a stolen Audi to an informant in exchange for money and drugs. Johnson was involved in planning the operation. He had received information from another officer, the informant, and police records that Havens had outstanding warrants for robbery and weapon possession, had previously fled from law-enforcement officers, and had associates known to carry weapons.
In the evening of January 3, Havens drove the Audi to the back of a Target store to meet the informant as agreed. L-shaped walls on the back (the west side) of the building formed an alcove that was open on the north and west. A perimeter road ran along the west and north sides of the building.
The pavement in the alcove was icy and slick. Officers had arranged for a number of vehicles to trap Havens in the alcove so he could be apprehended. A blue Chevy Blazer, posing as the buyer's car, was parked near the east wall of the alcove facing west; it was occupied by Detective C.J. Bickmore and Officer Billy Mayfield. Havens drove into the alcove and stopped the Audi facing the passenger side of the Blazer, roughly 6 to 15 feet away.
Several police vehicles then entered the alcove. Officer Kelly Pickering drove a blue pickup, stopping it with the front-left-corner bumper within inches of, or possibly touching, the rear of the Audi; and Officer Ricardo Hernandez drove a black GMC Yukon that he parked between the east alcove wall and the blue pickup. Shortly thereafter, Officer Brian Sandy entered the alcove in a white pickup with its police lights activated. Defendant Johnson was in the passenger seat. Following the white pickup was a Jeep Liberty driven by Sergeant Scott Beauvais.
Once the Audi was blocked between the Blazer and the blue pickup, it began ramming the Blazer in front of it and the blue pickup behind it.1 Sandy drove his white pickup into the passenger side of the Audi and pushed it sideways toward a snowbank against the east wall of the alcove. The Audi stopped moving and Johnson stepped out of the passenger side of the white pickup with a Taser in his hand, planning to arrest Havens. Sandy also exited the pickup and broke the front passenger window of the Audi with a wrench. The Audi then maneuvered to push the pickup backwards, pivoting on the right front bumper of the truck, and continuing to move down the truck's passenger side. Johnson was in front of the Audi wearing a police badge and a jacket that said “Police” in reflective material. He drew his gun, ordering Havens to stop and put the car in park. Meanwhile, Beauvais had driven the Jeep Liberty behind Johnson. Johnson fired nine times, hitting Havens three times and rendering him a quadriplegic.
The critical factual issue is what was going on when Johnson fired at Havens. Havens's recollection of the shooting is limited. He testified at his deposition that when he arrived in the alcove and pulled the Audi perpendicular to the Blazer, he suddenly flew forward and then backward in his seat. He glanced in the rearview mirror and saw the front grille of a vehicle with no lights on, and then flew forward again. After the Audi was hit the first time, he did not have control of the car and did not make any maneuvers. Next he felt as if someone had hit him in the chest, taking his breath away; all his limbs went numb and he fell against the car door. He could not estimate the time between the Audi being hit and the gunshots, but these events were “pretty much instantaneous” to him. Aplt. App., Vol. 1 at 180. Havens testified that he did not see any vehicles (presumably other than the Blazer and the one whose grille he saw in his rearview mirror) or any police lights and he did not see any police officers until after he was shot. He also said that he did not see the shooter and he did not know what direction the Audi was facing when he was shot.2
The statements of officers other than Johnson indicated that the Audi was moving toward Johnson when he fired the shots. Sandy testified that the Audi was accelerating and its engine was revving as it moved along the side of his pickup. He was standing behind the hood of his truck and could not see Johnson on the other side, but he heard the shots and saw the muzzle flashes. The Audi was moving when Sandy heard the shots. In a statement to investigators on the day of the incident, Mayfield said that the car was accelerating toward Johnson when he fired. Bickmore testified that the Audi was moving toward Johnson and he thought he was going to see Johnson get crushed. Pickering stated in an affidavit that he heard gunshots as the Audi lurched forward. Sergeant Eric Strausheim, who drove into the alcove in a Dodge Intrepid while Johnson was firing the shots, testified that he saw the Audi rolling forward toward Johnson, and possibly touching Johnson's legs, as Johnson tried to back up. He said that Johnson was bent over at the waist toward the vehicle. Sergeant Link Strate, a passenger in the Intrepid, testified that as they turned into the alcove he saw Johnson standing in front of the Audi, saw the muzzle flashes from the gun, and saw the Audi lurching and spinning its tires. He said that Johnson was within inches of the Audi. Strate yelled for Strausheim to ram the Audi, which Strausheim did, using the Intrepid to hit the driver's side of the Audi and pin it against Sandy's pickup. The Audi's engine continued to rev and the car was still moving. One of the police officers smashed a window of the Audi and turned off the engine.
As for Defendant Johnson's version, he testified at his deposition that while the Audi accelerated down the side of Sandy's pickup, he backpedaled, Havens turned the steering wheel, and the Audi struck him. Thinking he was about to be crushed by the Audi, he fired his gun nine times into the windshield to stop Havens. After he fired the shots the Audi was temporarily pinned by the Intrepid; but its engine was revving and it started coming at him again. He pulled out a new magazine, dropped it, picked it up, reloaded, and got back into position to fire again if needed. No more shots were fired. Johnson at first testified that when he fired he was bent over the hood of the Audi, holding himself up with his left hand, and the Audi was pushing him backwards. Later in his deposition, however, he was asked whether the Audi was moving toward him and he replied, “Not at the time that I shot him.” Id. at 215. After reviewing the deposition transcript, Johnson filed an amendment to this testimony, stating that the car was still moving toward him and he was bent over the hood of the vehicle when he shot.3
In Johnson's initial statement to investigators a few hours after the incident, he had said that as he was backing up and the Audi was heading at him, he opened fire to stop Havens. He did not say, however, that the Audi hit him. Rather, he stated that the Audi was less than five feet from him when he shot. Johnson explained at his deposition that he saw his handprint on the Audi the day after the incident and remembered that he had been hit. Criminalist Suzanne Kurth testified that when she spoke with Johnson shortly after the incident he told her that he was moving around, looking for an escape route, while shooting and he did not say that he was hit by the Audi. Officer Bickmore testified that he believed Johnson touched the vehicle at one point but he did not remember Johnson's being on top of the hood.
After this incident the State of Colorado charged Havens with multiple offenses. In October 2008 he pleaded guilty to attempted first-degree assault of Johnson (among other things). At the plea hearing the court asked for a factual basis for the plea. The attorneys agreed that the factual basis for the assault count and another count was contained in the affidavit for Havens's arrest, and that Havens was waiving a factual basis for the other two counts. The court, however, insisted on a record that Havens acknowledged committing the crimes and was pleading guilty to them. His attorney stated, “[T]he attempted assault is from the police officer being in front of [Havens's] car as that car, according to the [police] report, was being—was stuck on the ice and the motor was being revved up, apparently, in an effort to get away.” Id. at 282. The court asked Havens whether this was what happened and his lawyer replied that Havens had no memory of the incident...
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