In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3140
T Y E VANS,
Plaintiff-Appellant,
v.
F RANK P OSKON, et al.,
Defendants-Appellees.
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:07-cv-592-DFH-JMS—David F. Hamilton, Judge.
S UBMITTED M ARCH 24, 2010—D ECIDED A PRIL 16, 2010
Before E ASTERBROOK, Chief Judge, and P OSNER and
W ILLIAMS, Circuit Judges.
E ASTERBROOK, Chief Judge. Police burst into the home
of Ty Evans to stop what they reasonably believed was
his attempt to strangle someone to death. According
to the officers, Evans resisted arrest and had to be sub-
dued; according to Evans, he offered no resistance
and was beaten mercilessly both before and after the
officers gained custody of him. A state court convicted
2 No. 09-3140
Evans of attempted murder and resisting arrest; he is
serving a term of 71 years’ imprisonment. See Evans v.
State, 855 N.E.2d 378 (Ind. App. 2006).
In this suit under 42 U.S.C. §1983, Evans accuses the
officers of violating the fourth amendment by using
excessive force during and after his arrest. The district
court granted summary judgment for the defendants,
concluding that Heck v. Humphrey, 512 U.S. 477 (1994), bars
this claim because Evans’s assertion that he did not
oppose being taken into custody contradicts his convic-
tion. Unless the resisting-arrest conviction is set aside,
the district court concluded, Evans has no claim
under §1983. 2009 U.S. Dist. L EXIS 66067 (S.D. Ind. July 28,
2009).
The district court did not discuss Wallace v. Kato, 549 U.S.
384 (2007), doubtless because neither side cited it. But
Wallace holds that a claim that accrues before a crim-
inal conviction may and usually must be filed without
regard to the conviction’s validity. The Court held that
a claim asserting that a search or seizure violated the
fourth amendment—and excessive force during an
arrest is such a claim, see Graham v. Connor, 490 U.S. 386
(1989)—accrues immediately. The prospect that charges
will be filed, and a conviction ensue, does not postpone
the claim’s accrual. Wallace added that a conviction does
not un-accrue the claim, even if the arguments advanced
to show a violation of the fourth amendment also imply
the invalidity of the conviction. 549 U.S. at 392–93.
Instead of dismissing the §1983 suit, the district judge
should stay proceedings if the same issue may be resolved
No. 09-3140 3
in the criminal prosecution (including a collateral attack).
549 U.S. at 393–94; see also Heck, 512 U.S. at 487 n.8.
Many claims that concern how police conduct searches
or arrests are compatible with a conviction. For example,
an arrest without probable cause violates the fourth
amendment but does not imply the invalidity of a convic-
tion, because courts do not “suppress the body” of the
accused. See United States v. Alvarez-Machain, 504 U.S. 655
(1992). Similarly, a court’s decision not to suppress
illegally seized evidence can lead to a conviction with-
out blotting out a §1983 challenge to the seizure. The
exclusionary rule is used in only a subset of all constitu-
tional violations—and excessive force in making an
arrest or seizure is not a basis for the exclusion of evi-
dence. United States v. Jones, 214 F.3d 836 (7th Cir. 2000). Cf.
Hudson v. Michigan, 547 U.S. 586 (2006) (violation of
constitutional knock-and-announce rule does not
justify exclusion).
Evans’s situation illustrates how a fourth-amendment
claim can coexist with a valid conviction. He contends
three things: (1) that he did not resist being taken into
custody; (2) that the police used excessive force to
effect custody; and (3) that the police beat him
severely even after reducing him to custody. (Evans
says that his skull was fractured and his face mangled,
leading to three surgeries and bone grafts. He also con-
tends that his vision has been permanently impaired.
These are not normal consequences of arrest.) Proposition
(1) is incompatible with his conviction; any proceedings
based on this contention must be stayed or dismissed
4 No. 09-3140
under Wallace or Heck. But propositions (2) and (3) are
entirely consistent with a conviction for resisting arrest.
See Gilbert v. Cook, 512 F.3d 899 (7th Cir. 2008); VanGilder
v. Baker, 435 F.3d 689, 692 (7th Cir. 2006); Dyer v. Lee, 488
F.3d 876, 881 (11th Cir. 2007) (collecting similar decisions
in other circuits). These aspects of the suit can proceed.
And if Evans is willing to abandon proposition (1), there
would be no need for a stay of any kind.
The district court observed that a plaintiff is master of
his claim and can, if he insists, stick to a position that
forecloses relief. That’s true enough, see Okoro v.
Callaghan, 324 F.3d 488 (7th Cir. 2003), but we do not
understand Evans to assert that he is advancing proposi-
tions (2) and (3) if and only if the district court accepts
proposition (1). His appellate briefs tell us that he is
willing to proceed on proposition (3) alone. We held in
Gilbert that, under similar circumstances, a prisoner
need not repudiate his allegation that he did nothing
wrong in order to maintain that he was the victim
of excessive force. Heck prevents such a person from
prevailing in the §1983 action on a position incompatible
with the conviction, but the plaintiff need not adopt the
defendants’ view of what occurred in order to contest
the degree of force used.
Evans, a prisoner proceeding without counsel, struggled
to articulate his contentions in a way that would avoid
problems under Heck. But this sort of difficulty, which
was evident in Gilbert too, must not be confused with a
desire to abandon propositions (2) and (3) if the court
concludes (as it must) that proposition (1) cannot be
maintained while the conviction stands.
No. 09-3140 5
Evans is entitled to an opportunity to prove that the
defendants used unreasonable force during and after
his arrest. The judgment is reversed, and the case is
remanded for proceedings consistent with this opinion.
4-16-10