Johnson v. Rogers

• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)
• Citation: 944 F.3d 966
• Docket Number: No. 19-1366,19-1366
• Parties: Timothy JOHNSON, Plaintiff-Appellant, v. Michael ROGERS, Defendant-Appellee.
• Decision Date: 17 December 2019

944 F.3d 966

Timothy JOHNSON, Plaintiff-Appellant,
v.
Michael ROGERS, Defendant-Appellee.

No. 19-1366

United States Court of Appeals, Seventh Circuit.

Argued November 6, 2019
Decided December 17, 2019

Richard A. Cook, Attorney, Yosha, Cook & Tisch, Indianapolis, IN, for Plaintiff-Appellant.

Traci Marie Cosby, Assistant Corporation Counsel, Office of the Corporation Counsel, Indianapolis, IN, for Defendant-Appellee.

Before Easterbrook, Manion, and Barrett, Circuit Judges.

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 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.

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 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.

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, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). The district court granted summary judgment for the officers, giving two reasons. 2019 WL 203115, 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, 114 S.Ct. 2364, 129 L.Ed.2d 383 (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,

944 F.3d 968

and we have amended the caption accordingly.

The 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.

Heck 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, 127 S.Ct. 1091, 166 L.Ed.2d 973 (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).

Any given plaintiff may choose to rest an excessive-force claim wholly on a contention that the police attacked an innocent...