Bush v. Strain

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
January 14, 2008

No. 05-30837 Charles R. Fulbruge III
Clerk

HOLLY BUSH

Plaintiff–Appellant
v.

RODNEY JACK STRAIN, JR, in his official capacity as Sheriff of St. Tammany
Parish; DALE GALLOWAY, Detective, individually and in his official capacity
as a St. Tammany Parish Sheriff Deputy; RONALD PLAISANCE, Deputy,
individually and in his official capacity as a St. Tammany Parish Sheriff Deputy

Defendants–Appellees

Appeal from the United States District Court
for the Eastern District of Louisiana

Before BARKSDALE, BENAVIDES, and OWEN, Circuit Judges.

PRISCILLA R. OWEN, Circuit Judge:

Holly Bush appeals an adverse summary judgment on her excessive force1
and conspiracy claims against law enforcement officers, Dale Galloway and
Ronald Plaisance, and a related respondeat superior claim against Sheriff
Rodney Jack Strain, Jr. The district court determined that Bush’s claims were

1
42 U.S.C. § 1983.
 No. 05-30837

barred under Heck v. Humphrey2 based on her conviction for resisting arrest
arising from the same event upon which her civil claims are based. The
judgment is affirmed in part and reversed and remanded in part.
I
Bush seeks damages for injuries she sustained after she was arrested for
simple battery and resisting arrest following a disturbance at a Mandeville,
Louisiana car wash. Bush contends that the arresting officer, Detective Dale
Galloway, injured her by intentionally and unreasonably pushing her head into
the rear window of an automobile after she was arrested, handcuffed, and
compliant. The officer contends that Bush was unintentionally injured when he
tried to subdue her as she resisted arrest. Bush was subsequently convicted of
resisting arrest, and the issue we must decide in this case is whether Bush could
prevail on her civil claims without impugning the validity of her criminal
conviction. If she cannot, her civil claims are barred.3
There is little dispute about what occurred in this case up to the point of
Bush’s arrest. By all accounts, Detective Galloway was interviewing a witness
when Bush walked up and greeted him. Bush overheard the witness make a
comment about Bush’s sister, became enraged, and threw a cup of ice water at
the witness. Galloway then attempted to arrest Bush for simple battery, and
when Bush was partially handcuffed, she pulled her right arm away in an
apparent attempt to hit or intimidate the witness. It is at this point that the
parties’ versions of events diverge concerning the duration of Bush’s resistance
and the cause of her injuries.
Galloway testified both in his civil deposition and at Bush’s resisting
arrest trial that Bush continued resisting arrest while he attempted to cuff her

2
512 U.S. 477 (1994).
3
Id. at 487.

2
 No. 05-30837

right hand and, through Bush’s attempts to get free, they both fell onto the rear
window of a nearby vehicle. Galloway’s testimony is corroborated in this lawsuit
by his co-defendant, Detective Ronald Plaisance, who testified in his civil
deposition that he arrived at the scene during the incident and witnessed Bush
pull away from Galloway and collide with the vehicle while Galloway was
attempting to restrain her. Both detectives assert that Plaisance had to help
Galloway restrain Bush and cuff her right hand. Plaisance did not testify in the
criminal proceeding.
Although Bush initially claimed that she never resisted arrest, she
admitted in her deposition that she pulled away from Galloway when he
attempted to arrest her. She contends, however, that she stopped resisting after
Galloway grabbed her right hand and that, after she ceased her resistance and
both hands were cuffed, Galloway placed his hand behind her neck and head and
forced her face into the rear window of a nearby vehicle, injuring her jaw and
breaking two of her teeth. Bush states that Plaisance did not assist Galloway
with the arrest, but witnessed this event and helped Galloway fabricate a story
to cover up the use of excessive force. Bush’s version of events is corroborated
by affidavits from two witnesses, Lindsay Burga and Amy Huber. Burga also
testified at Bush’s criminal trial.
Bush sued Galloway and Plaisance under 42 U.S.C. § 1983 for excessive
force, illegal arrest, and conspiracy. She also sued Galloway and Plaisance’s
employer, Sheriff Strain, based on respondeat superior liability under Louisiana
law. The parties consented to proceed before a magistrate judge, and the civil
case proceeded contemporaneously with a state criminal case against Bush for
simple battery and resisting arrest. Bush was ultimately convicted of resisting
arrest and acquitted on the battery charge.
Following Bush’s resisting arrest conviction, the defendants moved for
summary judgment, principally arguing that Bush’s claims are barred under

3
 No. 05-30837

Heck v. Humphrey because a favorable outcome on that claim would render her
resisting arrest conviction invalid. Alternatively, they argued that they were
entitled to qualified immunity on the excessive force claim. The defendants did
not separately challenge Strain’s respondeat superior liability or the conspiracy
claim. In response, Bush abandoned her illegal arrest claim based on the
outcome of the criminal proceeding, but she asserted that there were unresolved
fact issues bearing on both the Heck and qualified immunity issues. The
magistrate judge determined that Heck barred all of Bush’s claims, and
therefore, did not reach the defendant’s qualified immunity claim.
On appeal, Bush’s legal position is basically unchanged, but she conceded
at oral argument that there is no viable excessive force claim against Plaisance.
The defendants continue to assert that Heck bars Bush’s claims and that they
are entitled to qualified immunity as a matter of law.
II
We review a summary judgment de novo, viewing the evidence in the light
most favorable to the non-movant,4 which in this case is Bush. Summary
judgment is appropriate when there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law.5
It is well settled under Heck that a plaintiff who has been convicted of a
crime cannot recover damages for an alleged violation of his constitutional rights
if that “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

4
Ballard v. Burton, 444 F.3d 391, 396 (5th Cir. 2006).
5
Id.

4
 No. 05-30837

a federal court’s issuance of a writ of habeas corpus.’”6 Although the Heck
principle applies to § 1983 excessive force claims, the determination of whether
such claims are barred is analytical and fact-intensive, requiring us to focus on
whether success on the excessive force claim requires negation of an element of
the criminal offense or proof of a fact that is inherently inconsistent with one
underlying the criminal conviction.7
We applied this analytical construct in Ballard v. Burton, in which we held
that a plaintiff’s excessive force claim was conceptually distinct from his simple
assault conviction and “could easily coexist with [the plaintiff’s] conviction for
simple assault . . . without calling into question any aspect of that conviction.”8
The plaintiff in Ballard was shot by Deputy Burton during a confrontation with
law enforcement officers. The plaintiff subsequently pleaded guilty to a simple
assault charge against a different officer, Deputy Boling, admitting only that he
put Boling in fear and that he fired his rifle several times while near law
enforcement officers.9 The plaintiff then sued Burton for using excessive force,
but his claim was dismissed on summary judgment based on Heck. On appeal,
this court concluded that Heck did not bar the excessive force claim because the
plaintiff’s civil claim was both conceptually and factually distinct from his
criminal conviction.10 Critical to the court’s decision was that the plaintiff’s
behavior satisfied the elements for simple assault against Boling, as charged in
the indictment to which he pleaded guilty, both before and after Burton arrived

6
Id. (quoting Heck, 512 U.S. at 486-87).
7
See id. at 400-01 (“‘[T]he Heck determination depends on the nature of the offense and
of the claim.’”).
8
Id. at 401.
9
Id. at 397-98.
10
Id. at 401.

5
 No. 05-30837

at the scene. As a result, “[a] finding that Burton’s use of force was
unreasonable would imply neither that [the plaintiff] did not attempt by physical
menace to put Boling in fear of imminent bodily harm, nor that [his] assault on
Boling was in necessary self defense.”11 Therefore, it was possible both that
Burton’s shooting of the plaintiff was objectively unreasonable, and thus
excessive, and that the plaintiff had assaulted Boling.12
As Ballard illustrates, a § 1983 claim would not necessarily imply the
invalidity of a resisting arrest conviction, and therefore would not be barred by
Heck, if the factual basis for the conviction is temporally and conceptually
distinct from the excessive force claim. Accordingly, a claim that excessive force
occurred after the arrestee has ceased his or her resistance would not necessarily
imply the invalidity of a conviction for the earlier resistance.13 In this case, there
is conflicting evidence about whether Bush was injured before or after her

11
Id. at 400.
12
Id. at 401.
13
See generally id.; see also, e.g., Wells v. Cramer, 158 Fed. Appx. 203, 204 (11th Cir.
2005) (holding that the alleged use of excessive force after the plaintiff was arrested,
restrained, and posed no threat to the officers would not necessarily implicate the validity of
his criminal convictions, including one for resisting arrest); Brengettcy v. Horton, 423 F.3d 674,
683 (7th Cir. 2005) (holding that Heck did not bar the excessive force claim because the
plaintiff’s claim that the officer used excessive force after the plaintiff hit him did not
undermine the plaintiff’s conviction for aggravated battery); Smithart v. Towery, 79 F.3d 951,
952-53 (9th Cir. 1996) (reversing dismissal of excessive force claim when plaintiff alleged that
the police beat him after his assault on the officers, for which he was convicted, had ended);
Howard v. Del Castillo, No. 2:00-CV-3466, 2001 WL 1090797, at *4 (E.D. La. Sept. 17, 2001)
(denying motions to dismiss and for summary judgment because the court could not rule out
the possibility that excessive force was used after the plaintiff was in handcuffs and no longer
resisting, which, if proved, would not be inconsistent with battery of an officer); cf. Martinez
v. City of Albuquerque, 184 F.3d 1123, 1127 (10th Cir. 1999) (“[W]hether Martinez resisted
arrest by failing to heed instructions and closing his vehicle’s window on the officer’s arm is
likewise a question separate and distinct from whether the police officers exercised excessive
or unreasonable force in effectuating his arrest.”); Nelson v. Jashurek, 109 F.3d 142, 145 (3d
Cir. 1997) (even though the plaintiff’s resistance authorized the use of “substantial force,”
which was necessary to his conviction, the plaintiff could still conceivably show that the force
used was greater than “substantial force,” objectively unreasonable, and excessive under the
circumstances).

6
 No. 05-30837

resistance ceased, and the crux of the dispute is whether the factual basis for
Bush’s excessive force claim is inherently at odds with the facts actually or
necessarily adjudicated adversely to Bush in the criminal proceeding.14
Bush was convicted of resisting arrest under LA. REV. STAT. § 14:108. The
defendants do not assert that an excessive force claim could never be maintained
consistently with a conviction under this statute because of the elements of the
crime or the existence of any defense to the crime.15 Rather, the defendants
argue, and the magistrate judge found, that the judge in the criminal proceeding
explicitly or implicitly determined that Bush was resisting arrest at the time she
was injured because he explicitly credited a portion of Galloway’s testimony. By
finding Galloway credible as to a portion of his testimony, the defendants
contend that the criminal court judge actually or necessarily credited all of
Galloway’s testimony, including his testimony that Bush was injured while she
was resisting his efforts to handcuff her. In short, the defendants contend that
the state court judge determined that the resistance was temporally inseparable
from the injury.
In rendering judgment, however, the state-court judge issued very narrow
fact findings:
The Court at this time finds the defendant guilty of resisting
arrest. The Court believes the officer’s testimony regarding the fact

14
See McCann v. Neilsen, 466 F.3d 619, 621 (7th Cir. 2006) (“[A] plaintiff’s claim is
Heck-barred despite its theoretical compatibility with his underlying conviction if specific
factual allegations in the complaint are necessarily inconsistent with the validity of the
conviction.”).
15
Cf. Sappington v. Bartee, 195 F.3d 234, 237 (5th Cir. 1999) (noting that the plaintiff’s
conviction for aggravated assault under a Texas statute meant that the defendant law
enforcement officer was authorized by law to use force up to and including deadly force); accord
Hainze v. Richards, 207 F.3d 795, 798-99 (5th Cir. 2000); Hudson v. Hughes, 98 F.3d 868, 873
(5th Cir.1996) (“Because 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, necessarily would imply the invalidity of his arrest and conviction for battery
of an officer.”).

7
 No. 05-30837

that he advised the defendant that she was under arrest and that as
he was attempting to cuff her she struggled to get free from him to
strike this other person. And the witness who was called by the
defense corroborates the officer’s [testimony].
So, I find the defendant guilty of res[isting]. I sentence her to
pay a fine of $100.00 plus costs, default of which will be fifteen (15)
days in the parish jail.16

To sustain the conviction, the judge determined only that Bush swung out
toward the witness after Galloway told her that she was under arrest. The court
made no findings regarding how long Bush’s resistance lasted or at what point
Bush was injured. Furthermore, a review of the trial transcript reveals that the
judge determined that the duration of resistance and the cause of Bush’s injuries
was irrelevant to the determination of whether she had resisted arrest. These
are material, disputed facts pertinent to her excessive force claim that were not
necessary to sustain Bush’s resisting arrest conviction.
The defendants also argue, albeit inartfully, that Bush’s complaint does
not allege that her claims of excessive force are separable from the events
underlying her resisting arrest conviction. Specifically, the defendants point to
the statement in Bush’s complaint that “[a]t no time did the plaintiff resist her
arrest.” If we were to take this statement at face value, we might agree with the
defendants.17 However, taking the statement in context, we conclude that Bush
has adequately pleaded a claim for excessive force occurring after she was
restrained.18

16
Emphasis added.
17
See DeLeon v. City of Corpus Christi, 488 F.3d 649, 656-57 (5th Cir. 2007) (declining
to consider the plaintiff’s argument that his claims of excessive force were separable from his
aggravated assault conviction because that claim was unsupported by his complaint which
presented the excessive force claim as a single violent encounter throughout which the plaintiff
was wholly innocent).
18
Paragraph 8 of Bush’s Complaint avers:

8
 No. 05-30837

We also disagree with the defendant’s contention, and the magistrate
judge’s conclusion, that Bush has attempted to manufacture a fact issue through
the use of an affidavit that contradicts prior sworn testimony. At Bush’s
criminal trial, Lindsay Burga testified that Bush swung out as she was being
handcuffed, but after she was handcuffed Galloway “pushed her head forcefully
against [the] car.” The state-court judge sustained a relevancy objection to the
testimony concerning how Bush was injured, but otherwise determined that
Burga’s testimony corroborated Galloway’s testimony that “as he was attempting
to cuff [Bush] she struggled to get free from him to strike this other person.” In
an affidavit submitted in response to the defendant’s summary judgment motion,
Burga similarly testified that Bush was already handcuffed and no longer
resisting arrest when Galloway “forcibly slammed her into the back of a car.”
“When an affidavit merely supplements rather than contradicts
prior . . . testimony, the court may consider the affidavit when evaluating
genuine issues in a motion for summary judgment.”19 Because Burga’s affidavit
supplements, and is entirely consistent with, her trial testimony, the affidavit
may be considered along with Bush’s other evidence supporting her excessive
force claim. We therefore do not reach the merits of Bush’s alternative argument
that Burga’s affidavit should be considered because it was executed before her
trial testimony, and thus, does not conflict with any prior testimony as a matter
of law.

The plaintiff was arrested by DETECTIVE DALE GALLOWAY for simple
battery of Lauren Beyl after she threw water on Beyl. While the plaintiff was
handcuffed with her writs behind her back, the defendant, GALLOWAY,
grabbed the plaintiff behind the neck and slammed her face into the back of a
parked car, causing permanent injury . . . At no time did the plaintiff resist her
arrest. The defendant, GALLOWAY, used excessive force when he restrained
the plaintiff.
19
S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 496 (5th Cir. 1996).

9
 No. 05-30837

Because Bush has produced evidence that the alleged excessive force
occurred after she stopped resisting arrest, and the fact findings essential to her
criminal conviction are not inherently at odds with this claim, a favorable verdict
on her excessive force claims will not undermine her criminal conviction. The
magistrate judge’s contrary conclusion was erroneous.
III
Below, defendants raised qualified immunity as an alternate basis for
dismissal, but the magistrate judge did not consider whether the defendants
were entitled to prevail on that defense to Bush’s excessive force claim.
Nonetheless, on appeal, Bush argues the qualified immunity defense should fail.
The defendants argue the issue is not before this court and, without addressing
Bush’s arguments, merely assert the evidence supports the defense. Since we
could affirm summary judgment on this alternate ground if it had merit,20 we
find it prudent to address this argument now in the interest of judicial efficiency.
A government official performing discretionary functions is entitled to
qualified immunity unless his conduct violates clearly established statutory or
constitutional rights of which a reasonable person would have known.21 There
are two steps in the qualified immunity analysis: (1) the court first determines
whether the plaintiff has alleged the violation of a statutory or constitutional
right; (2) the court then determines whether the defendant’s actions violated
“clearly established statutory or constitutional rights of which a reasonable
person would have known.”22 The court applies “current law to the first step and
the law at the time of the incident to the second step, which may sometimes

20
Stanley v. Trinchard, 500 F.3d 411, 428 (5th Cir. 2007).
21
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
22
See Flores v. City of Palacios, 381 F.3d 391, 395 (5th Cir. 2004).

10
 No. 05-30837

result in applying different tests to the two steps.”23 “Despite the confusion this
approach creates, the Supreme Court has made clear that we are obliged to go
through the first step of the analysis even if the second step shows that the law
was not clearly established.”24
Under the first step, to state a violation of the Fourth Amendment
prohibition on excessive force, the plaintiff must allege: (1) an injury that
(2) resulted directly and only from the use of force that was excessive to the
need, and (3) the use of force that was objectively unreasonable.25 Though some
injuries are so minor that they are insufficient to satisfy the injury element as
a matter of law,26 an injury is generally legally cognizable when it results from
a degree of force that is constitutionally impermissible—that is, objectively
unreasonable under the circumstances.27 The objective reasonableness of the
force, in turn, depends on the facts and circumstances of the particular case,
such that the need for force determines how much force is constitutionally

23
Id. at 395 n.3.
24
Id. (citing Saucier v. Katz, 533 U.S. 194, 200-01 (2001)); see also Scott v. Harris, 127
S. Ct. 1769, 1774 & n.4 (2007) (declining to reconsider the wisdom of Saucier’s “rigid order of
battle” because it was unnecessary to do so for purposes of resolving the case at bar (internal
quotation marks omitted)).
25
Flores, 381 F.3d at 396.
26
Id. at 397–98 (citing Glenn v. City of Tyler, 242 F.3d 307, 314 (5th Cir. 2001), which
held that handcuffing too tightly, without more, is not a constitutionally significant injury).
27
Ikerd v. Blair, 101 F.3d 430, 434-35 (5th Cir. 1996); Flores, 381 F.3d at 399 n.6; see
also Williams v. Bramer, 180 F.3d 699, 704 (5th Cir. 1999) (finding the plaintiff’s
injuries—fleeting dizziness, loss of breath, and coughing—legally insufficient when they
resulted from a permissible physical search, but finding those same injuries sufficient when
they resulted from a use of force that was illegitimate because motivated by malice), clarified
on motion for rehearing, 186 F.3d 633, 634 (5th Cir. 1999) (clarifying that the officer’s
subjective intent was irrelevant to the Fourth Amendment analysis but was considered in the
main opinion only as it beared on whether the plaintiff alleged conduct without an apparent
law enforcement related purpose).

11
 No. 05-30837

permissible.28 Specifically, the court should consider “the severity of the crime
at issue, whether the suspect poses an immediate threat to the safety of the
officers or others, and whether he is actively resisting arrest or attempting to
evade arrest by flight.”29
Here, Bush has satisfied the first step. Under the version of events alleged
by Bush and two witnesses, Burga and Amy Huber, Galloway forcefully
slammed Bush’s face into a vehicle when Bush was handcuffed and subdued.
There is also evidence that, as a result of Galloway’s actions, Bush sustained
injuries to her face, teeth and jaw and incurred significant medical expenses.
Thus, Bush has alleged injuries, resulting directly and solely from force that was
excessive to the need and objectively unreasonable under the circumstances.
At the second step of the immunity inquiry, the court considers whether
the officer’s use of force, though a violation of the Fourth Amendment, was
nevertheless objectively reasonable in light of clearly established law at the time
the challenged conduct occurred.30 Even though an officer’s use of force must be
objectively unreasonable to violate constitutional rights, a defendant’s violation
of constitutional rights can still be objectively reasonable if the contours of the
constitutional right at issue are sufficiently unclear.31 “The central concept is
that of ‘fair warning’: The law can be clearly established ‘despite notable factual
distinctions between the precedents relied on and the cases then before the

28
Ikerd, 101 F.3d at 434.
29
Graham v. Connor, 490 U.S. 386, 396 (1989).
30
Glenn, 242 F.3d at 312.
31
Saucier, 533 U.S. at 204-06 (explaining how the qualified immunity analysis in an
excessive force case involves two distinct objective reasonableness inquiries—the first of which
examines whether the officer’s use of force was objectively reasonable in light of Fourth
Amendment standards and the second of which determines whether the right was clearly
established such that a reasonable officer would know the particular level of force used was
excessive).

12
 No. 05-30837

Court, so long as the prior decisions gave reasonable warning that the conduct
then at issue violated constitutional rights.’”32 Thus, while the right to be free
from excessive force is clearly established in a general sense, the right to be free
from the degree of force employed in a particular situation may not have been
clear to a reasonable officer at the scene.33 Courts must judge the
reasonableness of an officer’s conduct by taking into account the “‘tense,
uncertain, and rapidly evolving’” circumstances in which officers must often
“‘make split-second judgments . . . about the amount of force that is necessary
in a particular situation.’”34 From this “on-scene perspective” rather than the
“‘20/20 vision of hindsight,’” courts should examine the objective reasonableness
of an officer’s belief that a certain degree of force was lawful under the
circumstances.35
At the time of Bush’s arrest, the law was clearly established that although
the right to make an arrest “‘necessarily carries with it the right to use some
degree of physical coercion or threat thereof to effect it,’”36 the permissible degree
of force depends on the severity of the crime at issue, whether the suspect posed
a threat to the officer’s safety, and whether the suspect was resisting arrest or
attempting to flee.37 Here, under Bush’s account of the events, she was not
resisting arrest or attempting to flee when Detective Galloway forcefully
slammed her face into a nearby vehicle during her arrest, thereby causing

32
Kinney v. Weaver, 367 F.3d 337, 350 (5th Cir. 2004) (en banc) (quoting Hope v. Pelzer,
536 U.S. 730, 740 (2002)).
33
Saucier, 533 U.S. at 201-02.
34
Id. at 205 (quoting Graham, 490 U.S. at 397).
35
Id. (quoting Graham, 490 U.S. at 396).
36
Id. at 208 (quoting Graham, 490 U.S. at 396).
37
Graham, 490 U.S. at 396.

13
 No. 05-30837

significant injuries. While the Fourth Amendment’s reasonableness test is “‘not
capable of precise definition or mechanical application,’”38 the test is clear
enough that Galloway should have known that he could not forcefully slam
Bush’s face into a vehicle while she was restrained and subdued. Therefore, the
defendants have not demonstrated that they are entitled to qualified immunity
on Bush’s excessive force claim.
****
We hold that Bush’s excessive force claim is conceptually distinct from the
facts underlying her criminal conviction and, thus, is not barred by Heck. We
also hold that the defendants have not established that they are entitled to
qualified immunity. Because the defendants did not separately move for
summary judgment on the conspiracy and respondeat superior claims, we
REVERSE the summary judgment and REMAND for further proceedings except
for the excessive force claim against Plaisance, which is AFFIRMED.

AFFIRMED IN PART AND REVERSED AND REMANDED IN PART.

38
Id.

14