In the
United States Court of Appeals
For the Seventh Circuit
No. 15‐1924
DARNELL TOLLIVER,
Plaintiff‐Appellant,
v.
CITY OF CHICAGO, et al.,
Defendants‐Appellees.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:11‐cv‐008563 — Andrea R. Wood, Judge.
ARGUED DECEMBER 11, 2015 — DECIDED APRIL 12, 2016
Before KANNE, ROVNER, and HAMILTON, Circuit Judges.
ROVNER, Circuit Judge. After pleading guilty to aggravated
battery to a peace officer, Darnell Tolliver brought claims
against the arresting officers for excessive force and conspiracy
to conceal the use of excessive force, and a claim against the
City of Chicago for indemnification of the officers. The district
court granted summary judgment in favor of the defendants
on the ground that Tolliver’s claims were barred by Heck v.
2 No. 15‐1924
Humphrey, 512 U.S. 477 (1994). Although it is certainly possible
in the abstract for a claim of excessive force to survive Heck,
Tolliver’s suit rests on a version of the event that completely
negates the basis for his conviction. His claim is therefore
barred by Heck and we affirm.
I.
The facts are hotly disputed but we must credit Tolliver’s
version and draw all reasonable inferences in his favor because
he is the party opposing summary judgment. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); McGreal v. Ostrov,
368 F.3d 657, 663 (7th Cir. 2004). In the evening of December 9,
2009, Tolliver drove to the home of his friend Kenyata Tyson,
near the intersection of Wabansia Avenue and Mobile Avenue
in Chicago. Tolliver had received a call earlier that evening
from Tyson’s girlfriend, asking for money to help Tyson
retrieve his car from the auto pound. Tolliver went into
Tyson’s house and handed over the requested money. He also
agreed to deliver drugs for Tyson and left the house with a
package of cocaine in his coat pocket. He returned to his white
Mitsubishi and pulled out onto Wabansia Avenue.
Unbeknownst to Tolliver, at roughly the same time, a
confidential informant was telling a Chicago police sergeant
that people were packaging drugs at a house on Wabansia with
a white Mitsubishi parked outside. When Tolliver was leaving
the house, the sergeant received another call informing him
that someone was leaving in the white Mistubishi. The ser‐
geant directed two officers on his gang team, Gregory Sobieraj
and Marc Debose, to stop the car. Officers Sobieraj and Debose
No. 15‐1924 3
saw the car at the intersection of Wabansia and Moody1 and
pulled their unmarked Ford Crown Victoria in front of and
perpendicular to the Mitsubishi to effect the stop.
Both officers, who were in plain clothes, exited the car, but
Tolliver saw only Officer Sobieraj, who exited the driver’s side
and immediately pointed a gun at Tolliver. Because the car was
unmarked and lacked police mars lights, and because the
officers were in plain clothes, Tolliver did not immediately
realize that the men were police officers. He put his car in
reverse and slowly backed up a little more than a car length.
When he looked forward again, Tolliver realized from
Sobieraj’s demeanor that he was a police officer. Because he
did not want the officer to think that he was reaching for a gun,
Tolliver (who was unarmed) then sat motionless in the car,
with his hands on the steering wheel in the 10 o’clock and 2
o’clock position, and his foot on the brake, for approximately
thirty seconds. He could tell that the man with the gun was
shouting but he could not hear the words because music was
playing in the car.
After sitting motionless for thirty seconds, with the car
stationary and the gearshift still in reverse, Tolliver felt
something hit him in the chest. He looked down and realized
1
At Tolliver’s plea hearing, the State’s version of the event placed the
incident at the intersection of Wabansia and Moody. Tolliver stated that
Tyson’s home was on Wabansia, and although he was not certain of the
cross‐street, he believed it was Mobile. Tolliver also stated that he was
traveling east on Wabansia when the officers stopped him. Moody is
approximately six blocks east of Mobile. The precise location of the shooting
is immaterial to the issues on appeal.
4 No. 15‐1924
he had been shot. When he felt the bullet enter his chest, he
“ducked down to the right” (R. 33‐1 at 65) or “fell to the right”
(R. 33 at ¶ 26) and “couldn’t move.” R. 33‐1 at 66. See also R. 33
at ¶ 26 (“After Tolliver was shot the first time, he felt as if he
could not move and fell to the right as his car started moving
forward.”); R. 33‐1 at 66‐67 (clarifying that he could not move
anything once the bullet hit him, and recalling that he fell to
the right). Tolliver testified that after he felt the first bullet
strike him, he “just felt like [he] was paralyzed,” and that he
could not move anything but his eyeballs. R. 33‐1 at 66. He
could not move his left side at all and he was lying on his right
side, with his right arm trapped beneath him. R. 33‐1 at 69. His
body was “stuck in the middle [of the center console], under
the steering wheel, in between … the gear shift … and … the
little panel part right in the middle.” R. 33‐1 at 69‐70. After that
point, he could not touch the steering wheel because he could
not move his left side and he was lying on his right side.
R. 33‐1 at 68‐71. From that position, he felt the car roll forward
for a few seconds until it hit something and then stopped
rolling. R. 33‐1 at 67, 72‐73. Tolliver asserted that he “did not
intentionally put [the car] in drive,” but that a reasonable
inference “is that the car was knocked into drive when Tolliver
fell over to the right as he was shot since the gear shift is floor
mounted in the center console.” R. 32, at ¶ 32. He did not know
whether the car was rolling forward in a straight path but
knew only that it was coasting forward. R. 33‐1 at 68. He
denied driving the car toward the officer (R. 33‐1 at 101) but
assumed that the car went toward the officer because it was
rolling forward after he was shot. R. 33‐1 at 104. After the
Mitsubishi came to rest, someone then pulled him from the car
No. 15‐1924 5
and laid him on the ground where he “felt like [he] went to
sleep.” R. 33‐1 at 79.
Although he never heard a gun being fired, Tolliver
eventually learned that the officers had fired fourteen times
and he had been struck by seven bullets which caused serious
and enduring physical and emotional injuries. The second shot
hit him in the shoulder, back‐to‐back with the first. R. 33‐1 at
63‐64, 70. More shots followed, hitting his left shin bone, thigh,
inner left thigh, buttocks, chest and shoulder blade. He
underwent surgery five times in efforts to repair the damage
but suffers from lasting injuries. Tolliver asserts that before the
shooting and at the time of the shooting, he posed no danger
or threat of danger to either officer. Tolliver does not dispute
that Officer Sobieraj was injured during the incident, spraining
his ankle. As we noted above, Tolliver also claims not to have
intentionally driven the car towards the officers and that he
was paralyzed from the moment of the first unprovoked shot.
Nevertheless, he pled guilty to state charges of aggravated
battery of a peace officer and possession of a controlled
substance with intent to deliver. At his plea hearing, Tolliver
stipulated that, if the matter proceeded to trial, Sobieraj would
testify that:
he was working and on duty on December
9th of 2009 at approximately 11:14 P.M. He
would testify that he was in the area of
Waubansia [sic] and Moody Avenue in Chi‐
cago, Cook County, Illinois, on a narcotics
surveillance. He would testify that he ob‐
served the Defendant, whom he would iden‐
6 No. 15‐1924
tify in open court, driving a vehicle. The
officer would testify that he attempted to
curb that vehicle, and he exited his vehicle
and approached the vehicle the Defendant
was driving. He would testify at that time
that the Defendant drove his vehicle towards
the officer, and in an attempt to escape from
the Defendant’s vehicle, Officer Sobieraj did
fall and sprain his ankle. He would further
testify that he was in fear for his safety, and
he fired shots at the vehicle striking the
Defendant. He would further testify that after
the Defendant’s vehicle crashed, the Defen‐
dant was placed in custody, and a custodial
search of the Defendant was performed,
which revealed 278 plastic clear plastic [sic]
baggies with white chunky substance inside
them.
R. 26‐4, at 8‐9.
After entering his guilty plea, Tolliver filed a three count
complaint against Officers Sobieraj and Debose and the City of
Chicago, claiming that the officers violated his civil rights by
using excessive force and by conspiring to conceal their use of
excessive force. The claim against the City is limited to indem‐
nification of the officers. The district court concluded that the
claim for excessive force is barred by Heck, and that the other
two claims fail because they are entirely dependent on the
success of the first. Tolliver appeals.
No. 15‐1924 7
II.
We review the district courtʹs grant of summary judgment
de novo, examining the record in the light most favorable to
Tolliver and construing all reasonable inferences from the
evidence in his favor. Anderson, 477 U.S. at 255; Naficy v. Illinois
Depʹt of Human Servs., 697 F.3d 504, 509 (7th Cir. 2012); Norman‐
Nunnery v. Madison Area Technical Coll., 625 F.3d 422, 428 (7th
Cir. 2010). Summary judgment is appropriate when there are
no genuine disputes of material fact and the movant is entitled
to judgment as a matter of law. Fed.R.Civ.P. 56(a); Naficy, 697
F.3d at 509.
Under Tolliver’s theory of the case, the officers used
excessive force in shooting him before his car began moving
and in continuing to shoot him as his car rolled slowly in the
direction of Sobieraj. The district court granted judgment in
favor of the defendants after concluding that Tolliver’s claims
were barred by Heck. In that case, the Supreme Court held:
[I]n order to recover damages for allegedly
unconstitutional conviction or imprisonment,
or for other harm caused by actions whose
unlawfulness would render a conviction or
sentence invalid, a § 1983 plaintiff must
prove that the conviction or sentence has
been reversed on direct appeal, expunged by
executive order, declared invalid by a state
tribunal authorized to make such determina‐
tion, or called into question by a federal
courtʹs issuance of a writ of habeas corpus, 28
U.S.C. § 2254. A claim for damages bearing
8 No. 15‐1924
that relationship to a conviction or sentence
that has not been so invalidated is not cogni‐
zable under § 1983. Thus, when a state pris‐
oner seeks damages in a § 1983 suit, the
district court must consider whether a judg‐
ment in favor of the plaintiff would necessar‐
ily imply the invalidity of his conviction or
sentence; if it would, the complaint must be
dismissed unless the plaintiff can demon‐
strate that the conviction or sentence has
already been invalidated. But if the district
court determines that the plaintiffʹs action,
even if successful, will not demonstrate the
invalidity of any outstanding criminal judg‐
ment against the plaintiff, the action should
be allowed to proceed, in the absence of some
other bar to the suit.
Heck, 512 U.S. at 486–87 (footnotes omitted). The question
for Tolliver, then, is whether his civil claims against the officers
necessarily imply the invalidity of his criminal conviction. See
also Okoro v. Callaghan, 324 F.3d 488, 489 (7th Cir. 2003) (a
convicted criminal may not bring a civil suit questioning the
validity of his conviction until the conviction has been set
aside).
Tolliver pled guilty to aggravated battery of a peace officer.
In Illinois, “[a] person commits aggravated battery when, in
committing a battery, other than by the discharge of a firearm,
he or she knows the individual battered to be … [a] peace
officer … performing his or her official duties.” 720 ILCS 5/12‐
No. 15‐1924 9
3.05(d)(4)(I).2 In turn, “[a] person commits battery if he
intentionally or knowingly without legal justification and by
any means, (1) causes bodily harm to an individual or (2)
makes physical contact of an insulting or provoking nature
with an individual.” 720 ILCS 5/12‐3.3 Illinois law also provides
that “[a] material element of every offense is a voluntary act,
which includes an omission to perform a duty which the law
imposes on the offender and which he is physically capable of
performing.” 720 ILCS 5/4‐1. Thus, in order to be guilty of
aggravated battery to a peace officer, Tolliver must have (1)
known that Sobieraj was a peace officer performing his official
duties; and (2) intentionally or knowingly; (3) voluntarily; (4)
without legal justification; (5) caused bodily harm to Officer
Sobieraj.
In Tolliver’s current version of the shooting, he concedes
that he knew that Sobieraj was a peace officer performing his
duties and that Sobieraj was injured when he attempted to
move away from Tolliver’s car as it rolled towards him. But
Tolliver’s version of the event denies any act that was know‐
ing, intentional, voluntary and lacking legal justification that
2
At the time of the shooting, section 720 ILCS 5/12‐4(b)(18) provided that,
“[i]n committing a battery, a person commits aggravated battery if he or
she … Knows the individual harmed to be an officer or employee of the
State of Illinois, a unit of local government, or school district engaged in the
performance of his or her authorized duties as such officer or employee.”
That provision was amended and renumbered as quoted above but the
changes are not relevant to the issues on appeal.
3
This is the version of the statute in effect at the time of the offense. A new
version took effect on July 1, 2011.
10 No. 15‐1924
caused the harm to Officer Sobieraj. Instead, Tolliver affirma‐
tively asserts that he did not intentionally drive the car
towards the officers, and that after the first, unprovoked shot,
he was paralyzed, fell over, and could not see what was
happening. He argues that it is reasonable to infer that he
knocked the gear shift into a forward gear when he fell or
“ducked” to the right after being shot, and he assumes his car
drifted towards the officers.
Without any acknowledgment of the mental state necessary
for a conviction for aggravated battery, Tolliver’s version of the
shooting thus implies the invalidity of his conviction. That is,
if the finder of fact were to accept his version of the event, the
officers shot him as he sat impassively in his car, posing no
threat to the officers. By his own account, the first shot that he
felt caused him to fall to the right, paralyzing his left side,
trapping his right arm, and rendering him unable to move
anything but his eyeballs. He could not see where the car was
going and could not direct its path or do anything to stop it. He
urges the court to interpret his statement that he “ducked” to
the right as the voluntary and intentional act that caused harm
to Officer Sobieraj. But even if he voluntarily ducked to the
right, and that action shifted the car into gear and caused it to
roll towards the officers, he has affirmatively denied intent and
knowledge of what happened next. Moreover, he would have
been legally justified in ducking if, as he also claims, he was
sitting impassively posing no threat to the officers when they
began to shoot him, even if the action of ducking then caused
injury to the officer. See 720 ILCS 5/7‐13 (delineating the
defense of necessity). Under Tolliver’s version of the facts, he
could not be guilty of aggravated battery because he did not
No. 15‐1924 11
intentionally drive towards the officers, did not knowingly roll
towards them, could not have stopped the car if he wanted to,
and placed the car into a forward gear through an act that can
be described as voluntary only if the finder of fact ignores the
majority of his deposition testimony. Moreover, in light of all
of his repeated testimony regarding falling to the right and
immediate paralysis, it is not reasonable to construe the phrase
“I ducked down to the right” as a voluntary act much less a
voluntary act that knowingly caused the injury to Sobieraj.
Because his version of the facts implies the invalidity of his
conviction for aggravated battery, his civil claims are barred by
Heck.
We note that there is nothing inherently contradictory
about pleading guilty to aggravated battery of a peace officer
and bringing a claim of excessive force. In Illinois, a person
may be guilty of aggravated battery of a peace officer for either
causing bodily harm to an officer or making physical contact
of an insulting or provoking nature with an officer. 720 ILCS
5/12‐3. Thus, a person could theoretically be found guilty of
aggravated battery for crumpling up a parking ticket and
throwing it at the officer’s foot, Garcia‐Meza v. Mukasey,
516 F.3d 535, 538 (7th Cir. 2008), or poking a police officer in
the chin, Chelios v. Heavener, 520 F.3d 678, 686 (7th Cir. 2008). If
a police officer responded to those relatively minor insults with
deadly force, a claim for excessive force would not be barred
by Heck simply because the offender pled guilty to aggravated
battery of a peace officer. A civil suit for excessive force in
those circumstances would not imply the invalidity of the
conviction.
12 No. 15‐1924
But if the plaintiff’s factual claims in the civil suit necessar‐
ily imply the invalidity of the criminal conviction, then Heck
bars the civil suit. We explained the distinction in Okoro. In that
case, a federal prisoner brought a suit against federal and state
officers, seeking the return of gems and cash that he claimed
the officers took from him in the course of a search of his home.
Okoro had been arrested in his home on suspicion of distribut‐
ing heroin, and it was during a search incident to his arrest that
the defendants allegedly stole the gems and cash from him. In
his civil suit, he insisted that he was not trying to sell heroin to
the officers, as they had testified. Instead, he asserted, he was
trying to sell them gems and the officers stole them. If his
version of the event was true, then he was convicted in error
because the officers’ testimony about the heroin was an
essential part of the evidence against him in his conviction. We
noted that if he could not prevail in his claim for the return of
the gems without undermining his conviction, then he was
barred by Heck until he had his conviction overturned:
It is irrelevant that he disclaims any intention
of challenging his conviction; if he makes
allegations that are inconsistent with the
convictionʹs having been valid, Heck kicks in
and bars his civil suit. Edwards v. Balisok, 520
U.S. 641, 646–48, 117 S.Ct. 1584, 137 L.Ed.2d
906 (1997); Ryan v. DuPage County Jury Com‐
mission, 105 F.3d 329, 330–31 (7th Cir. 1996)
(per curiam). He is the master of his ground.
Okoro, 324 F.3d at 490. Okoro could have said the officers took
his gems without making any claim about heroin, or he could
have said that they took both the heroin and his gems, and
No. 15‐1924 13
neither of those scenarios would have implied the invalidity of
his conviction. But instead he challenged the validity of the
guilty verdict by denying that there were any drugs and
instead arguing that he was framed. His civil claims were
therefore barred by Heck. Okoro, 328 F.3d at 490.
Tolliver’s conviction was based on voluntarily, and
knowingly or intentionally causing bodily harm to Officer
Sobieraj, without legal justification. But if the incident unfolded
as Tolliver alleges in his civil suit, then he could not have been
guilty of aggravated battery of a peace officer because the
officer shot him without provocation and was injured as a
result of involuntary and unintentional actions by a paralyzed
Tolliver. Because Tolliver is the master of his ground, and
because the allegations he makes now necessarily imply the
invalidity of his conviction, Heck bars his civil suit. Okoro,
324 F.3d at 490.
Tolliver could have brought a suit for excessive force that
occurred after the crime was complete. Gilbert v. Cook, 512 F.3d
899, 901 (7th Cir. 2008) (Heck does not affect litigation about
what happens after the crime is completed). As we explained
in Gilbert, a contention that a guard struck back after being hit
is not incompatible with Heck. “Otherwise guards (and for that
matter any public employee) could maul anyone who strikes
them, without risk of civil liability as long as the private party
is punished by criminal prosecution or prison discipline for the
initial wrong.” Gilbert, 512 F.3d at 901. If Tolliver had conceded
that he voluntarily and intentionally or knowingly drove
towards the officers, or if Tolliver had even remained agnostic
on who struck the first blow, he could have brought a claim
that the officers’ response of firing fourteen bullets at him
14 No. 15‐1924
constituted excessive force and that claim4 would not be barred
by Heck. Gilbert, 512 F.3d at 902. But Tolliver’s version of events
negates the mental state necessary to support his conviction for
aggravated battery of a peace officer and thus necessarily
implies the invalidity of his conviction.
The district court relied entirely on Heck in ruling for the
defendants, declining to address their alternative argument
that they were also entitled to qualified immunity for the shots
fired once Tolliver’s car began to move towards them. “The
doctrine of qualified immunity protects government officials
‘from liability for civil damages insofar as their conduct does
not violate clearly established statutory or constitutional rights
of which a reasonable person would have known.’” Pearson v.
Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982)). The Supreme Court has held that
“[w]here the officer has probable cause to believe that the
suspect poses a threat of serious physical harm, either to the
officer or to others, it is not constitutionally unreasonable to
prevent escape by using deadly force.” Tennessee v. Garner,
471 U.S. 1, 11 (1985).5 See also Bell v. Irwin, 321 F.3d 637, 639 (7th
4
We offer no opinion on the merits of such a claim. We note only that it
would not be barred by Heck.
5
The Court noted that, when deadly force is used to prevent escape in
circumstances where a suspect has threatened an officer with a weapon, a
warning should be given first when feasible. Garner, 471 U.S. at 11–12.
Although Tolliver asserts that he was shot without warning, he also
concedes that the officers were pointing their weapons at him for at least
thirty seconds and that they were shouting at him. But he alleges that he
(continued...)
No. 15‐1924 15
Cir. 2003). If a suspect threatens the officer with a weapon, that
risk of serious physical harm has been established. Garner,
471 U.S. at 11. In assessing whether force was excessive, we
must analyze the actions of the officer from the objective
perspective of a reasonable officer on the scene, rather than
with the 20/20 vision of hindsight. Scott v. Edinburg, 346 F.3d
752, 756 (7th Cir. 2003). Moreover, the reasonableness calculus
must allow for the fact that officers are often forced to make
split‐second decisions about what amount of force is necessary
in circumstances that are tense, uncertain and rapidly evolving.
346 F.3d at 756.
Tolliver argues that the officers were not entitled to
qualified immunity because (1) they created the danger by
firing the first shot at a time when the car was stationary and
he presented no threat to their safety; and (2) once the car
started rolling towards the officers, it was moving so slowly
that Tolliver did not present a threat of serious physical harm
to the officers. As we have already noted, if the encounter
unfolded as Tolliver asserts, with the officers firing the first
shot as he sat stationary in the car, his version of events would
necessarily imply the invalidity of his conviction for aggra‐
vated battery of Officer Sobieraj. That eliminates Tolliver’s
argument that the officers unjustifiably created the danger.
As for his claim that the car was moving so slowly that he
did not place the officers in danger, the defendants point out
that Officer Sobieraj was in fact injured as he tried to flee from
5
(...continued)
could not hear the words because of the music playing in his car.
16 No. 15‐1924
Tolliver’s moving car. We will take that analysis a step further.
“The fact‐specific nature of whether an officer used excessive
force depends on the totality of the circumstances surrounding
the encounter.” Scott, 346 F.3d at 756. “[A]n automobile may be
used as a deadly weapon.” Scott, 346 F.3d at 757. Considering
the totality of the circumstances here, Tolliver asserts that his
car was moving no more than three miles per hour at the time
of the shooting. Three miles per hour is equivalent to 4.4 feet
per second. In his deposition, Tolliver stated that when the
officers pulled their car in front of his Mitsubishi to effect the
stop, the police car was seven or eight feet in front of him
(R. 33‐1, at 53, 55), and that Sobieraj was eight feet in front of
him when he exited the police car and pointed his gun at
Tolliver (R. 33‐1, at 55). Tolliver then backed up approximately
one and a half car lengths (R. 33‐1, at 51, 56, 57). Assuming that
a car length is approximately sixteen feet, Tolliver backed up
approximately twenty‐four feet, putting a total distance of
thirty‐two feet (or approximately two car lengths) between his
Mitsubishi and Officer Sobieraj. A car traveling only three
miles an hour will traverse that distance in a little more than
seven seconds.6 Of course, when the car began moving in the
direction of the officers, they had no way of knowing whether
Tolliver would accelerate towards them, closing the distance
even faster. They knew only that they had stopped a car being
driven by a man purportedly transporting cocaine, and that the
6
A car traveling three miles per hour would close the gap in 7.27 seconds.
There are 5280 feet in a mile, and 3600 seconds in an hour. Three miles per
hour is equivalent to 15840 feet per 3600 seconds, or 4.4 feet per second. To
calculate the number of seconds it would take to close the gap, we divide
32 feet by 4.4 feet per second, and calculate 7.27 seconds.
No. 15‐1924 17
man had responded by first backing up and then by moving
towards them as they stood in front of the car. And as Tolliver
alleges, as his car moved towards the officers, he fell to his
right, under the steering wheel, and essentially disappeared
from the officers’ sight.
Qualified immunity applies to the actions of Officers
Sobieraj and Debose here. Reasonable officers in their circum‐
stances would have perceived the car as a deadly weapon that
created a threat of serious physical harm. The Mitsubishi was
only two car lengths from the officers when it began to move
in their direction, and even at slow speeds, the officers had
only seconds to react to the threat. Moreover, the officers had
no way of knowing whether Tolliver would accelerate,
shortening the space and time to react. By Tolliver’s own
account, the bullets were fired in rapid succession, over a
period that could be measured in seconds. The officers stopped
firing when the vehicle stopped moving and the threat had
passed. During those few seconds, Sobieraj sprained his ankle
as he moved away from the car.
Tolliver encourages us to split the time line into the
moments before the car moved and the period after it began
moving. In his opening brief, he claims that it was excessive
force to shoot him before his car drove towards Sobieraj, and
it was also excessive force to continue to shoot him when his
car slowly moved towards Sobieraj. If the officers began
shooting before the car moved, the defendants agree that
qualified immunity would not apply but that scenario would
necessarily imply the invalidity of Tolliver’s conviction for
aggravated battery. Because of Heck, Tolliver would have to
obtain the reversal of his conviction before he could proceed
18 No. 15‐1924
against the officers on that theory. And once the car began to
move towards the officers, as a factual matter, there was no
natural breaking point between the first few shots and the
remaining shots. Even if it were possible to discern in those
few seconds a meaningful break from the shots absolutely
necessary to protect the officers and those that were unneces‐
sary, the officers were entitled to qualified immunity because
Tolliver had ducked out of sight, and the officers had no
reason to know that he was disabled or that there was no need
to continue firing. From a reasonable officer’s perspective, the
danger had not changed because the car continued to roll
forward. In the totality of these circumstances, qualified
immunity therefore applies to all of the officers’ actions once
the car began to move towards the officers.
As long as Tolliver’s conviction stands, he is confined to a
version of the facts that does not undermine the conviction.
Because Tolliver’s claim for excessive force fails under Heck, so
too do his claims for conspiracy to conceal the use of excessive
force and for indemnification.
AFFIRMED.