NOT RECOMMENDED FOR FULL
- TEXT PUBLICATION File Name: 19a0182n.06
Case No. 18

- 5868
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

LEANN PHILLIPS , Plaintiff

- Appellant ,

v. LARRY C. CURTIS, II; CITY OF GEORGETOWN, K ENTUCKY , Defendants

- Appellees

. ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF KENTUCKY

BEFORE: GUY, SUTTON , and NALBANDIAN, Circuit Judges. SUTTON, Circuit Judge. The nature of police work means that police sometimes use force. The nature of the Fourth Amendment means that police may not use force un reasonably

. Officer Larry Curtis shot Leann Phillips at some unspecified point after Phillips drove her car into a police
cruiser

. Phillips launched this lawsuit against Curtis and his employer, the C ity of Georgetown. Later, in truth five years later, Phillips ple a d ed guilty to wantonly endangering Curtis’s life

. After holding the case in abeyance until the resolution of the crimin al case, t he district court dismissed Phillips’s civil suit under Heck v. Humphrey , 512 U.S. 477 (1994), reasoning that her criminal conviction necessarily implied that Curtis used force reasonably. We reverse and remand

. Here’s what Phillips says happene d

. In May 2012, her abusive boyfriend assaulted her

. When the police arrived to see what was going on , she tried to run away. She got into her car and ,Case No. 18

- 5868 , Phillips v. Curtis et al.

2

while still upset, struck a police cruiser. The officer s order ed her to stop and tried to break the
car’s windows when s he refused to turn off the car

. Her vehicle move d forward slowly , with
several officers to the side and rear

. Nevertheless, Curtis “ without probable cause or justification
shot ” her “ in the back ” through the rear window. R. 1

- 1 at 2

. Shortly after the incident , Kentucky indicted Phillips on three counts of wanton endangerment for “manifesting an extreme indifference to the value of human life” when she drove
toward Curtis and two other officers , placing them in “substantial danger of death or serious physical injury.” R. 25

- 3 at 1

– 2. Roughly a year later , Phillips launched this civil lawsuit alleging
that Curtis used excessive force in violation of the Fourth (and Fourteenth) Amendment , that Georgetown failed to train and supervise Curtis, and that both defendants violated state tort law

. In February 2018

— five plus years after the incident

— Phillips ple a d ed guilty to wanton ly endanger ing Curtis

. Under Heck v. Humphrey , someone convicted of a crime cannot bring a § 1983 lawsuit “if a judgment in [her] favor

. . . would necessarily imply the invalidity of [her] conviction or

sentence. ” 512 U.S. at 487. To prevail on her Fourth Amendment claim s , Phillips must prove that Curtis used objectively unreasonable force under the totalit y of the circumstances. See Graham v.
Connor , 490 U.S. 386, 396 (1989)

. An officer like Curtis may use deadly force on a fleeing suspect if “the officer has probable cause to believe that the suspect poses a threat of serious physical harm,
either to the officer or to others .” Tennessee v. Garner , 471 U.S. 1, 11 (1985) . Meanwhile, Phillips’s conviction determined conclusively that she had placed Curtis’s life at some point in “substantial danger of death or serious physical injury.”
To determine whether a civil judgment and a criminal conviction would “ necessarily ” conflict, courts look to many considerations, including the timing of the alleged constitutionalCase No. 18

- 5868 , Phillips v. Curtis et al.

3

violation and the criminal conduct

. See Hayward v. Cleveland Clinic Found. , 759 F.3d 601, 612 (6th Cir. 2014) (“[A] court must carefully examine the facts and the temporal sequence of the underlying offense and the alleged unconstitutional conduct

. . . . ”)

. Generally speaking, for example, i f a n individual is convicted of resi sting arrest, that conviction bar s claims that the police used excessive force during an arrest

. See i d. A victory in a damages suit thus would mean that
the officer used force improperly , while the conviction for resisting arrest would dictate the opposite conclusion. See id. That is a classic Heck problem. But a person convicted of resisting

arrest may still allege that an officer used excessive force after the arrest occurred

. In that situation,

t he civil suit and the conviction potentially d eal with separate moments and potentially can coexist
with out contradicting one another

. See id

. ; Matheney v. City of Cookeville , 461 F. App ’ x 427, 431 (6th Cir. 2012) ; Sigley v. Kuhn , 205 F.3d 1341 (6th Cir. 2000) ( unpublished table decision ) ; see also Lucier v. City of Ecorse , 601 F. App ’ x 372, 377 (6th Cir. 2015). In this case, Phillips purports to identif y two separate incidents, one when she endangered
Curtis , the other when he opened fire. To be sure, if the two incidents happened at roughly the

sa me time

— or in legitimate response to one another

— H eck would bar her law suit . For p lacing Curtis in substantial danger of serious death or injury would mean that, at that moment, Curtis
could use deadly force. See Garner , 471 U.S. at 11

. But Phillips say s that she placed Curtis’s life
in jeopardy at point one , she ceased to be a threat at point two , and only after t hat did Curtis sho o t her. Under that scenario , assuming a material gap in time between the two events, her victory in
this law suit would not necessarily invalidate her criminal conviction

. All of this m eans that the district court applied Heck prematurely in granting the defendants’ motion to dismiss. L imited discovery should flesh out the nature of Phillips ’s plea and the timing o f her conduct and the shooting

. We realize that s even years have passed since theCase No. 18

- 5868 , Phillips v. Curtis et al.

4

events in question

. Under these circumstances, it is imperative that the district court require Phillips (and, where necessary, the officers) promptly to provide answers to these questions or the lawsuit should be dismissed for failure to prosecute it.
W e reverse and remand for proceedings consistent with this opinion.