Ballard v. Burton

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
March 24, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk

No. 04-60621

STEPHEN BALLARD,
Plaint iff-Appellant,

versus

BRIAN BURTON,
individually and in his Official capacity;
OKTIBBEHA COUNTY, MISSISSIPPI,

Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of Mississippi, Eastern Division,

Before DAVIS, STEWART, and DENNIS, Circuit Judges.

CARL E. STEWART, Circuit Judge:

Stephen Ballard (“Ballard”) appeals from the grant of summary judgment in favor of the

defendants, Brian Burton, Deputy Sheriff of the Oktibbeha County Sheriff’s Office (“Burton”), and

Oktibbeha County, Mississippi, on his action brought pursuant to 42 U.S.C. § 1983. Ballard’s

complaint alleges, in pertinent part, that Burton, individually and in his official capacity, caused

permanent injuries by shooting Ballard during an arrest attempt. The essence of Ballard’s claim is that

Burton violated his Fourth Amendment rights by using excessive force that rendered him permanently

paraplegic.
 On appeal, Ballard contends that the district court erred in its determination that (1) pursuant

to Heck v. Humphrey, 512 U.S. 477, 486-87 (1994),1 Ballard was collaterally estopped from bringing

this § 1983 claim due to his state conviction for simple assault on a law enforcement officer; and (2)

Heck applies to this § 1983 action even though the state conviction was obtained via a guilty plea

pursuant to North Carolina v. Alford, 400 U.S. 25 (1970).2 We agree with Ballard’s contention that

Heck does not bar his claim. Nevertheless, we affirm the district court’s summary judgment against

Ballard because the summary judgment record does not reveal a Fourth Amendment violation.

I. FACTUAL AND PROCEDURAL BACKGROUND

Stephen Ballard, while armed with a 30/30 rifle, was shot during a confrontation with

Mississippi law enforcement officers. Following the incident, Ballard was charged with two counts

of simple assault on a law enforcement officer and one count of aggravated assault on a law

enforcement officer. Ballard was convicted on two counts of the indictment. But these convictions

were overturned by the Mississippi Supreme Court on the basis that the trial court erred by not

allowing testimony on Ballard’s insanity defense. On remand, instead of defending himself at trial,

Ballard pleaded guilty to the charge of simple assault on Deputy Leroy Boling, pursuant to North

Carolina v. Alford, admitting only that he put Boling in fear and that he fired the 30/30 rifle several

times while he was near officers.

1
The Court in Heck held that an inmate could not challenge the constitutionality of his state
conviction in a subsequent suit for damages brought pursuant to 42 U.S.C. § 1983 if a judgment in
his favor in the § 1983 action would undermine the validity of the state conviction.
2
North Carolina v. Alford, 400 U.S. 25 (1970) permits a defendant to enter a guilty plea
to the underlying offense charged, while affirmatively maintaining his factual innocence.

2
 Ballard then filed the instant action pursuant to 42 U.S.C. § 1983, alleging that Burton and

Oktibbeha County violated his Fourth Amendment rights against use of unreasonable force. The

defendants moved for summary judgment, contending that Ballard was barred from bringing this

action under the “favorable termination rule” established in Heck. In addition to the pleadings, the

parties filed excerpts from the trial transcript, depositions, and other documents in support of, or

opposition to, the motion for summary judgment. The following factual background is drawn from

disputed and undisputed statements in the pleadings and other documents presented to the district

court prior to its ruling on the motion for summary judgment.

On or about August 11, 1996, Ballard sought psychiatric treatment from the Oktibbeha

County Hospital after he and his wife had a heated argument. Ballard was suicidal at the time he

sought treatment but was not admitted into the hospital and did not receive any medical attention.

Ballard left the hospital and armed himself with a 30/30 caliber rifle. Because of his disturbed mental

condition, he “irrationally drove” through Starkville, Mississippi, stopping occasionally to fire his gun

in the air and to threaten his own life. Law enforcement officers from the Okitibbeha County Sheriff’s

Office and the Starkville Police Department were notified and followed him in patrol cars.

The last time Ballard stopped, Deputy Leroy Boling was in the first patrol car behind him.

Boling exited the patrol car and crouched down behind its open door. Ballard came toward Boling

with the rifle down, pointing toward Boling but not “up sighting” him. Boling asked Ballard to stay

back and put the weapon down, but Ballard refused. Boling testified that the rifle was aimed at

Boling’s head because that was the only thing showing, and that he could vividly see the end of the

rifle’s barrel. Ballard then pointed the rifle at an upward angle that Boling and other law enforcement

officers described as “port arms.”

3
 By this time, Starkville Police Lieutenant Keith Davis had arrived, exited his patrol car and

gone to the back of Boling’s patrol car. Deputy Charles Cole, Jr., who arrived at the scene in Davis’

patrol car, remembered seeing Ballard in front of Boling’s car with a rifle and with Boling pinned

down behind his car. Cole testified that he saw Ballard pointing the gun at Boling and that he felt like

Ballard was pointing the gun at everyone there.

Boling moved to join Davis at the rear of Boling’s patrol car. Ballard put the rifle up under

his chin and said, “Watch this,” then lowered the rifle. Ballard again pointed the rifle at the upward

port arms angle while he pulled up his shirt and patted his chest with his free hand. Ballard indicated

his chest was a target and told the officers to shoot at him. Ballard fired a shot in the air, then lowered

the rifle toward Davis. Burton saw Ballard talking to Davis and Boling, and saw Ballard lower the

gun toward Davis. Likewise, Deputy Brett Watson saw Ballard aim at Davis and believed Ballard

“was fixing to kill Lieutenant Davis and possibly Lieutenant Boling.” Watson shot Ballard with a

shotgun, but it seemed to have little effect. Ballard “just swayed back a little bit and then went back

with the gun towards the two officers.” Watson’s shotgun jammed, but he cleared the jam, fired a

second time, and saw Ballard fall backwards onto the concrete. At the same time that Watson aimed

and fired his second shot, Burton aimed at Ballard’s mouth and shot him. The shot to Ballard’s mouth

caused severe damage to his spinal cord and rendered him permanently paraplegic.

Ballard’s complaint asserts that Burton knew Ballard’s rifle was empty prior to taking aim and

shooting him, and that Burton therefore had no reason to believe that any of the officers were in

imminent danger. The complaint further alleges that, under these circumstances, Burton’s decision

to shoot him was unreasonable and amounted to a use of excessive force, in violation of § 1983, and

that this use of unreasonable force rendered him paraplegic. The complaint also asserts as a proximate

4
contributing cause of Ballard’s injuries the gross negligence of Oktibbeha County, Mississippi, via

its failure to properly train Burton and other officers how to handle a suicidal person without killing

him.

Presented with pleadings, testimony, and other documents that included the foregoing as both

disputed and undisputed facts, the district court directed the parties to brief the issue of whether

Heck’s favorable termination rule bars Ballard from bringing his § 1983 action, in light of the Alford

nature of Ballard’s state conviction. Reasoning that (1) Ballard’s Alford plea was a conviction and

was not a “favorable termination” and (2) Heck’s favorable termination rule applies to preclude

Ballard’s § 1983 claim, the district court subsequently granted the defendants’ motion for summary

judgment against Ballard.

Ballard appeals the judgment against him, asserting that his Alford plea does not have the

same collateral estoppel effect as a non-Alford guilty plea and that Heck’s favorable termination rule

does not bar his § 1983 action. While we agree with the district court that the Alford nature of

Ballard’s state conviction has no effect on its use for Heck purposes, we find that Heck’s favorable

termination rule does not apply to the instant circumstances. Nevertheless, because the summary

judgment record does not support at least one element necessary for Ballard to prevail in his § 1983

claim, we affirm.

II. DISCUSSION

A. Standard of Review

We review de novo a district court’s grant of a motion for summary judgment, applying the

same standard as the district court did in the first instance. See Burge v. Parish of St. Tammany, 187

F.3d 452, 465 (5th Cir. 1999). Summary judgment is appropriate where the moving party establishes

5
“there is no genuine issue of material fact and that [it] is entitled to judgment as a matter of law.” Fed.

R. Civ. P. 56(c); see Cronn v. Buffington, 150 F.3d 538, 541 (5th Cir. 1998). The moving party must

show that if the evidentiary material of record were reduced to admissible evidence in court, it would

be insufficient to permit the nonmoving party to carry its burden. Celotex v. Catrett, 477 U.S. 317,

327 (1986).

B. Heck’s Favorable Termination Rule

It is well settled that, under Heck v. Humphrey, 512 U.S. 477, 486-87 (1994), a plaintiff who

has been convicted of a crime cannot recover damages for an alleged violation of his constitutional

rights if the alleged violation arose from the same facts attendant to the charge for which he was

convicted, unless he proves “that his conviction or sentence has been reversed on direct appeal,

expunged by executive order, declared invalid by a state tribunal authorized to make such

determination, or called into question by a federal court’s issuance of a writ of habeas corpus.” Heck,

512 U.S. at 486-87; Randell v. Johnson, 227 F.3d 300, 301 (5th Cir. 2000); Sappington v. Bartee,

195 F.3d 234, 235 (5th Cir. 1999). “Heck requires the district court to consider ‘whether a judgment

in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would,

the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence

has already been invalidated.’” Jackson v. Vannoy, 49 F.3d 175, 177 (5th Cir. 1995) (citation

omitted). This requirement or limitation has become known as the “favorable termination rule.”

Sappington, 195 F.3d at 235.

As a preliminary matter, we address Burton’s assertion that his conviction cannot be used to

bar his excessive force claim because it is based on an Alford plea.

6
1. Collateral Consequences of an Alford Plea

Ballard argues that because he entered an Alford plea, his simple assault conviction cannot

be used to impose Heck’s favorable termination rule. We disagree. Although a res nova issue in

regard to Heck, various Courts of Appeals have deemed an Alford plea the procedural equivalent of

a non-Alford guilty plea.3 We likewise view an Alford plea as nothing more than a variation of an

ordinary guilty plea. Moreover, we are not persuaded by Ballard’s suggestion that, because his plea

was pursuant to Alford, there is an insufficient factual basis to support a finding that his simple assault

conviction was terminated unfavorably. “Once accepted by a court, it is the voluntary plea of guilt

itself, with its intrinsic admission of each element of the crime, that triggers the collateral

consequences attending that plea. Those consequences may not be avoided by an assertion of

innocence.” Blohm v. Comm’r of Internal Revenue, 994 F.2d 1542, 1554 (11th Cir.1993) (citing

Boykin v. Alabama, 395 U.S. 238, 242 (1969)). Accordingly, we hold that a conviction based on an

Alford plea can be used to impose Heck’s favorable termination rule.

Because Ballard has failed to establish that his state conviction for simple assault was

terminated in his favor, we shall examine whether his § 1983 claim alleging excessive force is

otherwise barred by Heck.

3
See, e.g., Burrell v. United States, 384 F.3d 22, 29 (2d Cir. 2004) (“A guilty plea under
the Alford doctrine is the functional equivalent to an unconditional plea of nolo contendere which
itself has the same legal effect as a plea of guilty on all further proceedings within the indictment.
The only practical difference is that the plea of nolo contendere may not be used against the
defendant as an admission in a subsequent criminal or civil case.” (citation omitted)); United
States v. Tunning, 69 F.3d 107, 111 (6th Cir. 1995) (“An Alford-type guilty plea is a guilty plea in
all material respects.”); United States v. Morrow, 914 F.2d 608, 611 (4th Cir. 1990) (same); see
also Watson v. New Orleans City, 275 F.3d 46 (5th Cir. 2001) where we applied Heck’s favorable
termination rule to a Louisiana conviction obtained via a no contest plea noting that, under
Louisiana law, a no contest plea constitutes a conviction.

7
2. Applicability of Heck’s Favorable Termination Rule

The policy undergirding the favorable termination rule is based on “the hoary principle that

civil tort actions are not appropriate vehicles for challenging the validity of outstanding criminal

judgments.” Heck, 512 U.S. at 486. This principle is another manifestation of the doctrine of issue

preclusion or collateral estoppel, i.e., the policy of finality that prevents the collateral attack of a

criminal conviction once the matter has been litigated. See id. at 484-85 (“[The Supreme] Court has

long expressed similar concerns for finality and consistency and has generally declined to expand

opportunities for collateral attack.” (citations omitted)). The Heck Court determined that this

principle of collateral estoppel “applies to § 1983 damages actions that necessarily require the plaintiff

to prove the unlawfulness of his conviction or confinement, just as it has always applied to actions

for malicious prosecution.” Id. at 486. If a judgment in the plaintiff’s favor would necessarily imply

that his conviction is invalid, then the § 1983 action is not cognizable unless the conviction were

reversed on direct appeal, expunged, declared invalid or otherwise called into question in a habeas

proceeding. See id. at 487; Hudson v. Hughes, 98 F.3d 868, 872 (5th Cir. 1996). Therefore, “[t]he

maturity of a section 1983 claim . . . depends on ‘whether a judgement in [the plaintiff’s] favor . . .

would necessarily imply the invalidity of his conviction.’” Hudson, 98 F.3d at 872 (alteration in

original) (citing Heck, 512 U.S. at 487).

Thus, in order to determine whether Heck’s favorable termination rule precludes Ballard’s §

1983 claim that Burton used excessive force, we first must determine whether a judgment in Ballard’s

favor on this claim would necessarily imply the invalidity of Ballard’s simple assault conviction. We

conclude that it would not.

8
 Ballard was convicted of simple assault of a law enforcement officer in violation of section

97-3-7 of the Mississippi Code. This section provides, in pertinent part, as follows:

A person is guilty of simple assault if he . . . (c) attempts by physical menace to put
another in fear of imminent serious bodily harm . . . However, a person convicted of
simple assault [upon a law enforcement officer while the law enforcement officer is
acting within the scope of his employment] . . . shall be [imprisoned] for not more
than five (5) years . . . .

Miss. Code Ann. § 97-3-7. Count two of the indictment, to which Ballard entered the Alford plea,

states that,

on or about the twelfth day of August, in Oktibbeha County [Ballard] did unlawfully,
willingly, feloniously, purposely, and knowingly attempt by physical menace to put
Leroy Bolen [sic], a law enforcement officer with the Oktibbeha County, Mississippi
Sheriff’s Department in fear of imminent serious bodily harm at a time when the said
Leroy Bolen [sic] was acting within the scope of his official duties and office, by
pointing a gun at the said Leroy Bolen [sic] without authority of law and not in
necessary self-defense.

As part of his Alford plea, Ballard admitted that he put Boling in fear and that he fired the 30/30 rifle

several times while he was near officers.

To prevail on his § 1983 claim for damages due to Burton’s use of excessive force, Ballard

must prove, inter alia, that Burton’s use of deadly force was objectively unreasonable in the

circumstances.4 See Graham v. Connor, 490 U.S. 386, 395-97 (1989). Therefore, the dispositive

question in determining whether Heck applies to preclude Ballard’s § 1983 claim is as follows: Would

a finding that Burton’s use of force was objectively unreasonable necessarily call into question the

validity of Ballard’s conviction for simple assault upon Boling? If it is possible for Ballard to have

assaulted Boling and for Burton’s shooting of Ballard to have been objectively unreasonable, then

4
While Ballard must establish additional elements to prove his excessive force claim, as
discussed in Part II.C., infra, the only element at issue in this case is the objective reasonableness
of Burton’s use of force.

9
Heck does not bar Ballard’s claim. On the other hand, if the only way that Burton’s shooting of

Ballard could be objectively reasonable is for Ballard to have assaulted Boling, then Heck bars

Ballard’s excessive force claim.

In Sappington v. Bartee, 195 F.3d 234 (5th Cir. 1999), law enforcement officer Garcia

appealed the district court’s denial of his motion for summary judgment on a claim that he had used

excessive force against Sappington. The district court had reasoned “that [Sappington’s] conviction

for assaulting Garcia does not necessarily imply the invalidity of his criminal conviction because under

Texas law, unlike Louisiana law, the use of force to resist arrest is justified only if, among other

elements, the arresting peace officer uses unnecessary force before the actor offers any resistance.”

Sappington, 195 F.3d at 236 (citation and internal quotation marks omitted). Sappington’s conviction

for aggravated assault required proof that he caused serious bodily injury to Garcia. Id. at 237. This

court determined that his conviction necessarily implied that Garcia did not use excessive force and

held that, as a matter of law, the force Sappington claimed was used could not, under Heck, be

deemed excessive. This determination and holding were based on Texas laws which provide that (1)

as an individual, Garcia “could use force up to and including deadly force to protect himself against

the other’s use or attempted use of unlawful deadly force[,]” and (2) as a peace officer, Garcia could

use deadly force in the course of an arrest if he reasonably believed that there was a substantial risk

that the person to be arrested would cause serious bodily injury if the arrest were delayed. Id.

In Hainze v. Richards, 207 F.3d 795 (5th Cir. 2000), this court was faced with a district court

holding that Heck did not bar Hainze’s § 1983 suit because “a conviction for aggravated assault

against a police officer does not necessarily preclude a finding of excessive force against the

assaulter.” Hainze, 207 F.3d at 798 (citation and internal quotation marks omitted). Nevertheless,

10
the district court granted summary judgment on the § 1983 claim because it determined that, though

Heck did not apply, the officers’ actions under the circumstances were objectively reasonable and

therefore they were entitled to qualified immunity. On appeal, this court stated that, “[s]ubsequent

to the district court’s decision we held that, based on Heck, an excessive force claim under section

1983 is barred as a matter of law if brought by an individual convicted of aggravated assault related

to the same events.” Hainze, 207 F.3d at 798 (citation omitted). This court disagreed with the district

court’s determination that Heck did not apply but concluded that summary judgment was appropriate

because, “as in Sappington, the force used by the deputies to restrain Hainze, up to and including

deadly force, cannot be deemed excessive.” Id. at 798-799.

The Texas statute in Sappington and Hainze authorized use of deadly force upon reasonable

belief that there was imminent danger of serious bodily injury. Those decisions turned on the fact that,

because serious bodily injury to the defendant was an element of the § 1983 plaintiff’s conviction, it

was impossible for the defendant to have used excessive force because the statute authorized use of

deadly force to defend against the bodily injury that the § 1983 plaintiff had inflicted upon him.5 We

note that, facially similar to the Texas justification statute, Mississippi’s justifiable homicide statute

provides that (1) as a law enforcement officer, Burton’s use of deadly force is justified “in

overcoming actual resistance to the execution of some legal process, or to the discharge of any other

legal duty,” Miss. Code Ann. § 97-3-15 (1)(b); and (2) as an individual, Burton’s use of deadly force

5
Hudson v. Hughes also involved state law that made the § 1983 plaintiff’s allegations of
excessive force necessarily inconsistent with his conviction. There, we stated that, “[b]ecause self-
defense is a justification defense to the crime of battery of an officer, [the plaintiff’s] claim that
[the defendants] used excessive force while apprehending him, if proved, would necessarily imply
the invalidity of his arrest and conviction for battery of an officer.” Watson v. New Orleans City,
275 F.3d 46 (5th Cir. 2001) (quoting Hudson, 98 F.3d at 873).

11
is justified “[w]hen committed in the lawful defense of one’s own person or any other human being,

where there shall be reasonable ground to apprehend a design to commit a felony or to do some great

personal injury, and there shall be imminent danger of such design being accomplished,” Miss. Code

Ann. § 97-3-15 (1)(f). Nevertheless, we distinguish the analysis and application of Heck in

Sappington and Hainze.

Hainze and Sappington each involved a conviction for aggravated assault under Texas law

where the assault was against a defendant in the § 1983 claim for excessive force. Each of those

convictions required proof that the § 1983 plaintiff had caused serious bodily injury. By contrast,

Ballard’s conviction was for assault, by physical menace, on an officer who is not a defendant in his

§ 1983 claim. Ballard’s conviction did not require proof that he caused bodily injury, serious or

otherwise. Not a single element of Ballard’s simple assault conviction would be undermined if Ballard

were to prevail in his excessive force claim against Burton or Oktibbeha County. For this reason,

unlike the Hainze and Sappington convictions, Ballard’s Mississippi conviction for simple assault

does not, as a matter of law, necessarily imply that Burton did not use excessive force as alleged in

the instant complaint.

We also factually distinguish Sappington because Ballard’s § 1983 claim of excessive force

is conceptually different than his conviction for simple assault such that “a successful suit on the

former would not necessarily imply the invalidity of the latter.” Hudson, 98 F.3d at 873 (citing

Smithart, 79 F.3d at 952-953). Undisputed in the summary judgment record is the fact that Ballard

pointed the rifle in the general direction of Boling before Burton arrived at the scene and in the

general direction of Boling and Davis after Burton arrived at the scene. When recovered, it was

determined that, but for a spent cartridge, the rifle was empty prior to the time Ballard allegedly

12
pointed it toward Boling and Davis. Ballard admitted that he put Boling in fear and that he fired the

30/30 rifle several times while near officers. On these undisputed facts, a determination that Burton

used unreasonable force tends to neither prove nor disprove the validity of Ballard’s conviction for

assaulting Boling. During the course of events from Ballard’s “irrational” drive through Starkville to

the times he exited his truck and fired the rifle near officers, Ballard’s behavior satisfied the elements

for simple assault against Boling, as charged in the indictment to which he pled guilty, both before

and after Burton arrived at the scene of the final confrontation. A finding that Burton’s use of force

was unreasonable would imply neither that Ballard did not attempt by physical menace to put Boling

in fear of imminent bodily harm, nor that Ballard’s assault on Boling was in necessary self defense.

Although we have distinguished Sappington, our method of analysis remains consistent. The

Sappington court analyzed the circumstances attendant to the conviction and carefully compared

them with the allegations in the § 1983 complaint and the remainder of the summary judgment record.

We noted that the theoretical possibility that Garcia might have used excessive force after Sappington

offered resistance was completely at odds with the summary judgment record in which Sappington

stated that his physical contact with Garcia occurred only after he was “maced and/or assaulted” by

the defendant law officer(s) and “that the physical contact between [Sappington] and Garcia began

when Garcia grabbed his wrist.” Sappington, 195 F.3d at 237. Accordingly, we did not address the

mere possibility that Garcia could have used unreasonable force and that Sappington could have

committed the aggravated assault. Instead we looked to the circumstances presented in the summary

judgment record and found “[Sappington’s] claim [ ] necessarily inconsistent with his criminal

conviction.” Id.

13
 When we look to the circumstances presented in the instant record, we find that Ballard’s

allegations that Burton used excessive force are not necessarily inconsistent with his conviction. The

circumstances in this summary judgment record involve a time period during which Ballard pointed

the rifle out of his truck while driving in front of Boling, and another time period during which Ballard

pointed the rifle toward Boling before Burton and other officers arrived.6 In addition, there is disputed

testimony that Ballard was observed pointing his rifle at Boling as well as at Davis and/or at Davis

and Boling near the time Burton shot Ballard. A finding that Burton’s use of force was unreasonable

would not necessarily mean that Ballard did not attempt by physical menace to put Boling in fear of

imminent serious bodily harm. Based on the events described in the summary judgment record, we

conclude that a judgment in Ballard’s favor on his § 1983 claim against Burton and Oktibbeha County

could easily coexist with Ballard’s conviction for simple assault of Boling, without calling into

question any aspect of that conviction.

This is not the first time we have noted circumstances where a plaintiff’s prior conviction is

not inconsistent with his claim of excessive force. In Wells v. Bonner, 45 F.3d 90, 95 (1995), we

assumed without deciding that a successful excessive force claim would not imply the invalidity of

a conviction for resisting a search. In Hudson v. Hughes, 98 F.3d at 872-873, we discussed Smithart

v. Towery, 79 F.3d 951, 952-953 (9th Cir. 1996), where the Ninth Circuit addressed whether a

successful excessive force claim would imply the invalidity of a conviction for assault. The Smithart

court “reasoned that the plaintiff’s claim that officers used force far greater than that required for his

arrest is conceptually distinct from his conviction for assault with a deadly weapon, and that a

6
Ballard denies pointing the rifle at any officer, but the indictment to which he pled guilty
stated that he pointed the rifle “at the said Leroy Bol[ing].”

14
successful suit on the former would not necessarily imply the invalidity of the latter[,]” Hudson, 98

F.3d at 873, and “concluded that Heck does not bar a civil rights action alleging excessive force

brought after the plaintiff entered an Alford plea to a charge of assaulting the arresting officers with

a deadly weapon,” id. at 872-873. Considering Smithart’s reasoning, we stated that “this observation

may be applicable in many section 1983 claims of excessive force . . . .” Id. at 873. Today we find this

Smithart reasoning applicable to the unique factual scenario at bar.

In an unpublished opinion, we examined various applications of Heck and concluded that “the

Heck determination depends on the nature of the offense and of the claim.” Arnold v. Slaughter, 100

Fed. Appx. 321, 323 (5th Cir. June 14, 2004). Though this quotation from Slaughter is not binding,

it is persuasive.7 The nature of Ballard’s simple assault conviction and the nature of his excessive

force claim are such that a judgment in favor of Ballard on his § 1983 claim would not undermine the

validity of his conviction. For the foregoing reasons, we find that the district court erred in its

determination that Heck’s favorable termination rule bars this § 1983 action for use of excessive

force.

C. Fourth Amendment Violation

The defendants’ motion for summary judgment asserts that Ballard cannot establish a prima

facie case of liability against them as alleged because this record does not show a Fourth Amendment

violation of Ballard’s rights by either Burton’s shooting or Oktibbeha County’s alleged failure to

train. The motion further asserts that, as a political subdivision and its employee, the defendants are

immune from liability under these circumstances. The district court found that Heck barred Ballard’s

7
An unpublished opinion issued after January 1, 1996 is not controlling precedent, but
may be persuasive authority. 5th Cir. R. 47.5.4.

15
claims, and therefore reached neither the defendants’ assertions that there exist no genuine issues of

material fact that preclude entry of summary judgment in their favor nor the defendants’ assertions

of qualified immunity.

Even though we have concluded that the reasons given by the district court do not support

the summary judgment entered against Ballard, we may affirm this judgment on any other grounds

supported by the record. Lifecare Hosp., Inc. v. Health Plus of La., Inc., 418 F.3d 436, 439 (5th Cir.

2005) (citing Forsyth v. Barr, 19 F.3d 1527, 1534 n.12 (5th Cir. 1994)). Therefore, we now examine

whether, viewing the record in the light most favorable to Ballard, summary judgment against him

was proper.

In order to succeed on a § 1983 claim that the defendants violated his Fourth Amendment

right against excessive force, a plaintiff must show that he was seized and that he “suffered (1) an

injury that (2) resulted directly and only from the use of force that was excessive to the need and that

(3) the force used was objectively unreasonable.” Flores v. City of Palacios, 381 F.3d 391, 396 (5th

Cir. 2004) (citations and internal quotation marks omitted); Goodson v. City of Corpus Christi, 202

F.3d 730, 740 (5th Cir. 2000). “The ‘reasonableness’ of a particular use of force must be judged from

the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”

Graham, 490 U.S. at 396. In this “reasonableness” inquiry,

the question is whether the officers’ actions are ‘objectively reasonable’ in light of the
facts and circumstances confronting them, without regard to their underlying intent
or motivation. An officer’s evil intentions will not make a Fourth Amendment
violation out of an objectively reasonable use of force; nor will an officer’s good
intentions make an objectively unreasonable use of force constitutional.

16
Id. at 397. “Use of deadly force is not unreasonable when an officer would have reason to believe that

the suspect poses a threat of serious harm to the officer or others.” Mace v. City of Palestine, 333

F.3d 621, 624 (5th Cir. 2003) (citing Tennessee v. Garner, 471 U.S. 1 (1985)).

The only disputed element of Ballard’s excessive force claim is whether Burton’s use of force

was unreasonable. Viewed in the light most favorable to Ballard, the facts are as follows:

After his attempt to get treatment at the hospital failed, Ballard was mentally disturbed and

suicidal. He armed himself with a 30/30 rifle and “irrationally drove” through Starkville, Mississippi.

Ballard stopped at least twice, got out of his truck and fired shots into the air. The rifle held a total

of seven rounds and was fully loaded and discharged by Ballard during his irrational drive-stop-get-

out-of-the-truck-and-shoot activity. The last time Ballard got out of his truck, officers asked him to

put down the rifle but he refused. Ballard fired another shot into the air, placed the rifle at port arms,

pulled up his shirt and told the officers to shoot using his chest as the target. Ballard then began to

lower the rifle. Illuminated by lights from one or more patrol cars and a flashlight held by Davis or

Boling, Ballard could not see Davis or Boling even though he was within ten or fifteen feet of them.

Ballard had discharged, but did not afterward cock his rifle. Seeing Ballard begin to lower the rifle

toward two law enforcement officers, Watson shot Ballard with a shotgun, but the pellets did not

appear to affect Ballard. As Watson cleared a jam in theshotgun, Burton carefully aimed at Ballard’s

mouth. Burton shot Ballard at the same time that Watson fired a second shot. Burton’s shot rendered

Ballard permanently paraplegic. At the time Ballard was shot, his rifle was pointed in the air, not at

Davis or Boling.

Burton was confronted with a mentally disturbed person who had, during the course of the

night’s events refused to put down his rifle, discharged the rifle into the air several times while near

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officers, and pointed it in the general direction of law enforcement officers.8 We find that, regardless

of the direction in which Ballard pointed the rifle just before he was shot, a reasonable officer in these

circumstances would have reason to believe that Ballard posed a threat of serious harm to himself or

to other officers. Because a reasonable officer in these circumstances may or may not have known

or calculated how many rounds had been fired or how many rounds remained in Ballard’s rifle, it is

immaterial whether Burton knew that Ballard’s rifle was uncocked or that it contained only a spent

cartridge. Accordingly, Burton’s use of force was not unreasonable. See Mace, 333 F.3d at 624 (“Use

of deadly force is not unreasonable when an officer would have reason to believe that the suspect

poses a threat of serious harm to the officer or others.” (citation omitted)).

The record reveals that factual disputes abound regarding what happened immediately before

Burton shot Ballard: the angle and direction in which the rifle was pointed, whether Ballard had

cocked the rifle, whether Ballard pointed the rifle toward Davis and Boling, and whether Burton

knew that the rifle was uncocked and/or unloaded and therefore not a danger to anyone. Moreover,

Ballard urges that because he entered his plea under Alford, he did not admit facts in the plea

agreement that could demonstrate that he placed officers Davis and Boling in imminent danger.

Nevertheless, when we view this record in the light most favorable to Ballard and judge Burton’s use

of force from the perspective of a reasonable officer at the scene, these factual disputes do not present

issues of material fact about the objective reasonableness of Burton’s use of force. Because Burton’s

actions were objectively reasonable, his knowledge about whether Ballard’s rifle was cocked or

8
Although Ballard denied pointing the rifle at any officer, he admitted that he put Boling in
fear and that he fired the 30/30 rifle several times while he was near officers. The fact that Ballard
pointed the gun at law enforcement officers during the course of the night’s events is, at least in
some sense, undisputed by virtue of his guilty plea.

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loaded is of no moment. See Graham, 490 U.S. at 397 (stating that an officer’s evil intentions will

not make a Fourth Amendment violation out of an objectively reasonable use of force).

We find that, viewed in the light most favorable to Ballard, this summary judgment record

reveals that Burton’s use of force was not unreasonable and that, therefore, neither Burton nor

Oktibbeha County violated Ballard’s Forth Amendment rights against excessive use of force.

III. CONCLUSION

For the foregoing reasons, we conclude that, even though Heck does not bar Ballard’s 42

U.S.C. § 1983 claims for excessive use of force and failure to train, on this summary judgment record

Ballard cannot establish that the defendants violated his Fourth Amendment rights. As a result, his

§ 1983 claims are not cognizable and we AFFIRM the district court’s order granting summary

judgment in favor of the defendants.

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