Clifford Cummings, Jr. v. City of Akron Rodney Sherman and Howard Vaughn, Jr.

SUHRHEINRICH, Circuit Judge,

dissenting.

I dissent from the majority’s decision to reverse because I believe Cummings’ federal constitutional claims collaterally attack the legality of his state court assault conviction. Because Cummings’ state conviction has not been overturned on appeal, expunged by the governor, declared invalid, or questioned by a habeas grant, all of his federal claims are barred by Heck v. Humphrey, 512 U.S. 477 , 114 S.Ct. 2364 , 129 L.Ed.2d 383 (1994).

The majority acknowledges the effect of Cummings’ plea agreement, and Heck , on at least some of Cummings’ subsequent federal constitutional claims by stating that:

success on Cummings’ excessive force claim would necessarily imply the invalidity of his state assault conviction. The struggle between Cummings and the officers gave rise to both Cummings’ assault conviction and the excessive force claim, and the two are inextricably intertwined. Additionally, Cummings could have raised excessive force as a defense to the assault charge, but instead he chose not to contest the charge.

Maj. Op. at 682-83.

However, the majority holds that Cummings can maintain his § 1983 unlawful entry and illegal seizure claims because, under Ohio law, Cummings cannot claim illegal entry or illegal seizure as defenses to assault and, therefore, a successful conviction as to these claims would not “imply the invalidity of [Cummings’] conviction or sentence.” Even if Cummings was precluded from raising the privilege of illegal entry and seizure as a matter of law (a point I dispute, as discussed below), he could have raised these issues as a matter of fact to argue that the State could not prove he had the requisite mens rea for assault.

The indictment reads in relevant part:

The Jurors of the Grand Jury of the State of Ohio ...

COUNT ONE

DO FIND AND PRESENT That CLIFFORD CUMMINGS, JR. On or about the 9th day of March, 2001, in the County of Summit and State of Ohio, aforesaid, did commit the crime of ASSAULT in that he did knowingly cause or attempt to cause physical harm to Office Howard Vaughn, a peace officer, while in the performance of official duties, in violation of Section 2903.13(A) of the Ohio Revised Code. A FELONY OF THE FOURTH DEGREE, contrary to the form of the state in such case made and provided and against the peace and dignity of the State of Ohio.

No.2001-03-0585, Court of Common Pleas, County of Summit, Ohio (March, 2001).

Had Cummings pleaded “not guilty” instead of “no contest,” to this charge, the State would have been required to prove beyond a reasonable doubt that Cummings “knowingly cause[d], or attempted] to cause physical harm to another.” Ohio Rev.Code § 2903.13 (emphasis added). That is, the State would have been required to prove that Cummings was aware that his conduct would probably cause a certain result or would probably be of a certain nature, regardless of his purpose in so acting. See State v. Brown, 90 Ohio App.3d 674 , 630 N.E.2d 397 (1993) (defining “knowingly” for purposes of Ohio Rev. Code § 2903.13). Yet, as the majority points out:

*689 [I]t is highly questionable whether Cummings’ act of closing the door on Sherman’s foot actually constituted an assault; if there is no underlying felony, the ‘hot pursuit of a fleeing felon’ exception to the warrant requirement is untenable. Ohio’s assault statute states that “[n]o person shall knowingly cause or attempt to cause physical harm to another,” and “[n]o person shall recklessly cause serious physical harm to another.” OHIO REV. CODE § 2903.12(A), (B) (emphasis added). There is no evidence on the record before us to suggest that Cummings knew Sherman’s foot was in the doorway when Cummings attempted to shut [the] door, and the Ohio Court of Appeals found it “undisputed that, whatever amount of force was applied, Officer Sherman’s foot sustained no injuries as a result of Cummings’ attempt to close the door.” Cummings, 2002 WL 57979 , at *1, n. 1. Given Cummings’ lack of exposure to public view, as well as the very questionable nature of the felony Defendants allege he committed, the hot pursuit exception to the warrant requirement is inapplicable.

Because Sherman’s and Vaughn’s seizure of Cummings’ person and entry into his home were unsupported by a warrant, consent or exigent circumstances based upon the hot pursuit of a fleeing felon, the officers deprived Cummings of his constitutionally protected right to refuse entry into his home, and to be free from an unreasonable seizure of his person.

Maj. Op. at 686-87 (footnote omitted).

As the foregoing passage makes clear, Cummings could have argued that he did not have the requisite criminal intent to commit the crime of assault because all he was trying to do was exercise his well-established constitutional right to refuse the officers’ request for entry and close the door to his home since the officers had neither a search warrant nor arrest warrant, and did not otherwise indicate that they were operating under exigent circumstances. And, as the Ohio Court of Appeals found, Sherman’s and Vaughn’s actions were indeed unlawful. Thus, on the facts of this case, the legality or illegality of the officers’ presence was integrally connected to Cummings’ response to the officers’ presence, and therefore his state of mind at the time of the alleged crime. In short, contrary to the conclusion of the majority, Cummings had a perfect opportunity to raise his Fourth Amendment claim in the state court criminal proceedings-to rebut the State’s contention that he had the requisite mens rea to commit the crime of criminal assault.

Instead, on March 19, 2002, Cummings pled “no contest” to the charge of assault against Officer Vaughn as contained in Count I of the indictment. 1 The order of the Court of Common Pleas reads in part:

Defendant retracts his plea of NOT GUILTY heretofore entered, and for plea to said Indictment, says he pleads *690 NO CONTEST to the charge of ASSAULT, as contained in the amended Count I of the Indictment, Ohio Revised Code section 2919.13(A), a misdemeanor of the first (1st) degree, which offense occurred on or about March 9, 2001, which plea voluntarily made and with a full understanding of the consequences, is accepted by the Court. And based upon the facts as found by this Court, the Court finds that the Defendant is GUILTY as stated above.

No. CR 01 03 0585, Court of Common Pleas, County of Summit, Ohio (March 19, 2002) (emphasis added). The order also indicates that Cummings was represented by counsel and was “fully advised of his Constitutional rights and his rights as required under Rule 11 of the Ohio Rules of Criminal Procedure.” Id. Based on Cummings’ “no contest” plea, the court dismissed the remaining charges against him.

As is clear from the state court order, Cummings was advised of his constitutional rights and was made aware of the fact that a “no contest” plea amounted to the court finding him guilty of criminal assault. Instead of pleading no contest, Cummings could have raised any Fourth Amendment arguments which might have affected a determination of whether he was guilty of assault. It is for this reason that Heck bars any claim in federal court based on the unlawful entry, because a favorable ruling for Cummings on his federal constitutional claims necessarily implies that he did not have the criminal intent to commit the crime of assault in that he did not knowingly intend to cause physical harm to either officer but merely wished to refuse them entry into his home because they had no right to come inside. However, by pleading no contest to those charges, Cummings necessarily admitted that he was guilty of, and therefore had the criminal intent to commit, the crime of assault.

The majority also overstates the holdings of City of Columbus v. Fraley, 41 Ohio St.2d 173 , 324 N.E.2d 735 (1975), and State v. Pembaur, 9 Ohio St.3d 136 , 9 O.B.R. 385 , 459 N.E.2d 217 (Ohio 1984), as an absolute bar to these defenses. 2 In Fraley , the defendant was convicted of violating an ordinance prohibiting the use of obscene language on public streets and of also violating an ordinance prohibiting the use of violence against a police officer. The Ohio Supreme Court rejected the defendant’s argument that she was privileged to use force in resisting arrest if her arrest for the alleged use of obscene language was illegal. Id. at 739. The Court held that “in the absence of excessive or unnecessary force by an arresting officer, a private citizen may not use force to resist arrest by one he knows, or has good reason to believe, is an authorized police officer engaged in the performance of his duties, whether or not the arrest is illegal under the circumstances.” Id. at 740.

In Pembaur , the defendant refused to allow two Cincinnati police officers to serve two bench warrants upon two of his employees at his medical clinic, which was open to the public. The defendant was charged with obstructing official business under Ohio Rev.Code § 2921.31(A). Id. at 217-18. Stating that “[t]he key issue presented in this case is whether a person may obstruct a law enforcement officer in *691 the discharge of that officer’s duty, when the person believes that the officer’s conduct is unlawful,” id. at 218, the Pembaur Court looked to Fraley :

The crux of this case is the applicability of Columbus v. Fraley .... There we held in the third paragraph of the syllabus that:

“In the absence of excessive or unnecessary force by an arresting officer, a private citizen may not use force to resist arrest by one he knows, or has good reason to believe, is an authorized police officer engaged in the performance of his duties, whether or not the arrest is illegal under the circumstances.”

In altering the common-law rule granting a person the right to resist an unlawful arrest, the Fraley court deemed it preferable, considering the crunch of modern society, to resolve the questions concerning the legality of police conduct in the courts through peaceful means rather than on the street in potentially violent confrontation. Fraley is determinative in the present case. Although defendant may well successfully challenge the use against him of any evidence obtained by the deputies in their search for defendant’s employees, defendant was not privileged to physically impede the deputies in their attempt to locate the subject of the capiases.

This, of course, is not to hold that law enforcement officials can freely execute capiases and arrest warrants on third-party premises. A warrantless entry, as in this case, may quite possibly result in the exclusion of pertinent incriminating evidence observed in such entry, and the showing of unreasonable conduct by a law enforcement officer may well provide a privilege to resist the [warrant-less] entry by the occupant. Nevertheless, absent bad faith on the part of a law enforcement officer, an occupant of business premises cannot obstruct the officer in the discharge of his duty whether or not the officer’s actions are lawful under the circumstances. The facts in this case do not show bad faith on the part of the deputies, or any other circumstances which would provide a privilege on the part of defendant to obstruct the deputies in the discharge of their duties.

Pembaur, 459 N.E.2d at 219 (emphasis added).

Contrary to the majority’s representations, Fraley and Pembaur do not set forth a per se rule barring the defense of illegality to a police officer’s entry. Furthermore, both cases dealt with public places, not private homes. As the United States Supreme Court observed in Steagald v. United States, 451 U.S. 204 , 101 S.Ct. 1642 , 68 L.Ed.2d 38 (1981):

Except in such special situations, we have consistently held that the entry into a home to conduct a search or make an arrest is unreasonable under the Fourth Amendment unless done pursuant to a warrant. See Payton v. New York, 445 U.S. 573 , 100 S.Ct. 1371 , 63 L.Ed.2d 639 ... (1980); Johnson v. Untied States, 333 U.S. 10, 13-15 , 68 S.Ct. 367 , 92 L.Ed. 436 ... (1948). Thus, as we recently observed: “In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.” Payton v. New York, supra, 445 U.S. at 590 , 100 S.Ct. 1371 .

Steagald, 451 U.S. at 211-12 , 101 S.Ct. 1642 .

I submit that, under Fraley and Pemb-aur, Cummings could have asserted the unreasonableness of that Sherman’s and Vaughn’s conduct as a defense to the state assault charge. After all, the majority observes “[t]he bedrock Fourth amendment principles announced in Payton and *692 Welsh demonstrates that the officers’ forced warrantless entry into Cummings’ home was presumptively unreasonable, and the Court’s exigency decisions in Warden and Santana clearly show that Sherman and Vaughn had no objectively reasonable basis for believing that their warrantless entry into Cummings’ home was supported by the exigency of hot pursuit of a fleeing felon.” Maj. Op. at 687 (emphasis added).

In short, by pleading no contest to the assault charge, Cummings conceded that he acted unlawfully, without justification. A conclusion by a federal court that the officers’ conduct was illegal necessarily undermines that judgment of conviction. Furthermore, because Cummings could have raised the officers’ illegal search and seizure as a defense -arguably as a matter of law anc certainly as a matter of fact-the federal court action is barred by Heck .

Unfortunately, the Court today has allowed Cummings to make an end run around Heck , and ultimately, the underlying state criminal proceeding Heck seeks to protect.

For these reasons, I DISSENT.

. It should be noted that Cummings originally pleaded not guilty to all the charges against him, and filed a motion to suppress. See State v. Cummings, No. 20609, 2002 WL 57979 , at *2 (Ohio Ct.App. Jan. 16, 2002). The trial court granted the motion and the State appealed. On January 16, 2002, the Ohio Court of Appeals overruled the State’s appeal and affirmed the trial court’s ruling. Then, on March 22, 2002, two months after the court of appeals’ decision, Cummings apparently changed course and pleaded "no contest” in return for the State dropping all but the assault charges against him, and reducing the felony assault charge to a misdemeanor. However, in the meantime, on March 5, 2002, Cummings filed this federal cause of action, asserting his Fourth Amendment claims.

. As the Ohio Court of Appeals has observed, "[t]he extent of the privilege to resist unlawful entry into the home has yet to be dealt with in Ohio.” State v. Howard, 75 Ohio App.3d 760 , 600 N.E.2d 809, 816 (1991) (quoting Middleburg Heights v. Theiss, 28 Ohio App.3d 1 , 501 N.E.2d 1226 (1985); see also Howard at 817 (noting a limited right to refuse entry and stating that an occupant can refuse to consent to an entry and search by, for example, locking or closing the door or physically placing one's self in the officer's way).