Go to Heck (v. Humphrey)!

Surat v. Klamser, 2022 WL 16826568 (10th Cir. 2022)

We’ve covered the law of qualified immunity in the discussion of many cases. In nearly all cases alleging excessive force, the defense shoots for summary judgment (dismissing the case) on the basis of qualified immunity. In this case, we’ll examine both qualified immunity and another legal maneuver that may lead to an early resolution of a use of force lawsuit. You may hear about a motion based on Heck, shorthand for the Supreme Court decision in Heck v. Humphrey (512 U.S. 477 (1994)).

Michaella Surat was celebrating her birthday at a bar. Officers Klamser and Pastor were dispatched to the bar in response to a disturbance involving Surat’s boyfriend, Mitchell Waltz. One officer spoke with Waltz as the other officer spoke with the bouncer. Surat attempted to exit the bar and “lightly bumped Officer Klamser” as she walked past him.

Surat approached Waltz and tried to leave the bar with him. Upon learning from the bouncer that Waltz was involved in the disturbance, Officer Klamser yelled to Officer Pastor that Waltz was not free to go. Officer Pastor began interviewing Waltz and Surat tried to interfere by walking toward Waltz. Officer Klamser blocked Surat from obstructing the interview and “placed Surat under arrest and held her by her wrist.” Surat “attempted to pry Officer Klamser’s fingers off of her arm and pawed at his arms.” Officer Klamser then used a takedown maneuver to take Surat to the ground.

In Heck v. Humphrey, “the Supreme Court held that a plaintiff could not bring a civil-rights claim for damages under § 1983 based on actions whose unlawfulness would render an existing criminal conviction invalid.” Thus, if a plaintiff’s civil rights claim would necessarily posit the invalidity of a criminal conviction of the plaintiff, the action is barred. Here’s a hypothetical example. Cyrano and Roxane are domestic partners. Cyrano punches Roxane because she burned the roast. Police respond. An officer knocks Cyrano to the ground and handcuffs him. Cyrano is arrested and subsequently convicted of assault.

From his cozy prison cell, Cyrano sues the arresting officer, claiming the officer had no probable cause to arrest Cyrano for assault. Cyrano would not, could not have been convicted of assault charge unless the court necessarily ruled there was probable cause for the arrest. Cyrano’s lawsuit fails under Heck v. Humphrey (unless his conviction is overturned on appeal). However, if Cyrano sues claiming the officers used unreasonable force to arrest him for assault, Heck v. Humphrey likely won’t impact his case. Cyrano can admit his conviction for assault and still claim he should not have been knocked to the ground during the arrest. Heck v. Humphrey won’t bar his claim for unreasonable force.

Surat was charged with obstructing a peace officer and resisting arrest. She pleaded not guilty to both charges and asserted a theory of self-defense, arguing she used physical force against Officer Klamser to defend herself “from what a reasonable person would believe to be the use of unlawful physical force.” The jury rejected her theory of self-defense and convicted her of both charges.

“To determine the effect of Heck on an excessive-force claim, the court must compare the plaintiff’s allegations to the offense he committed.”

Surat then sued. Now switch the names in the earlier example from Cyrano to Surat. Do you think Heck v. Humphrey can help Officer Klamser? The trial court ruled Heck v. Humphrey did not bar Surat’s claim that Officer Klamser used excessive force to take her to the ground. Officer Klamser shifted to a defense based on qualified immunity. The court declined to grant qualified immunity, ruling a jury could find Officer Klamser’s takedown unreasonable. The trial court also ruled Officer Klamser’s force violated clearly established law. Officer Klamser appealed.

The appellate court first analyzed the reasonableness of the takedown, applying the factors articulated by the Supreme Court in Graham v Connor (490 U.S. 386 (1989)): (1) the severity of the crime at issue, (2) whether the suspect poses an immediate threat to the safety of the officers or others, and (3) whether she is actively resisting arrest or attempting to evade arrest by flight.

The appellate court observed: “To determine the effect of Heck on an excessive-force claim, the court must compare the plaintiff’s allegations to the offense he committed.” The court agreed a reasonable jury might find Officer Klamser’s takedown violated Surat’s right to be free from excessive force: “Accepting the facts assumed by the district court in denying summary judgment, Officer Klamser’s use of the takedown maneuver during Ms. Surat’s arrest was objectively unreasonable. Ms. Surat was arrested for two misdemeanor offenses, committed in a particularly harmless manner. She did not pose a threat to Officer Klamser or others after he initiated the arrest. Although she did minimally resist arrest, Officer Klamser’s alleged use of force against Ms. Surat—using a takedown maneuver to slam her face into the ground—was not proportionate given her level of resistance.”

We therefore hold that the use of the takedown maneuver to slam to the ground a nonviolent misdemeanant who poses no immediate threat to the officer or others based on minimal resistance to arrest is unreasonable and constitutes excessive force under the Fourth Amendment.” This bright line rule is certainly guidance as “clearly established law” to future encounters. But the court still had the task of deciding whether the law was clearly established at the time Officer Klamser arrested Surat. It wasn’t. “None of the precedent identified by Ms. Surat would have made it clear to every reasonable officer that throwing Ms. Surat to the ground in response to her minimal resistance would violate the Fourth Amendment. As a result, Officer Klamser is entitled to qualified immunity.”

Ken Wallentine

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over four decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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