Timothy Johnson v. Michael Rogers

In the

United States Court of Appeals

For the Seventh Circuit

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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