1 42 U.S.C. § 1983.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-30837

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

United States Court of Appeals

Fifth Circuit

F I L E D

January 14, 2008

Charles R. Fulbruge III

Clerk
No. 05-30837

2 512 U.S. 477 (1994).

3

Id. at 487.

2

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
No. 05-30837

3

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
No. 05-30837

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

5

Id.

4

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 thatthere 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
No. 05-30837

6

Id. (quoting Heck, 512 U.S. at 486-87).

7 See id. at 400-01 (“‘[T]he Heck determination depends on the nature ofthe offense and

of the claim.’”).

8

Id. at 401.

9

Id. at 397-98.

10 Id. at 401.

5

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 constructin 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
No. 05-30837

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

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
No. 05-30837

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

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 assertthat 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,thatthe 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 courtjudge determined thatthe resistance was temporally inseparable

from the injury. 

In rendering judgment, however,the state-courtjudge 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
No. 05-30837

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

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 thatthe 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
No. 05-30837

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

We also disagree with the defendant’s contention, and the magistrate

judge’s conclusion,that Bush has attempted to manufacture a factissue 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.
No. 05-30837

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

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 prudentto 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
No. 05-30837

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

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
No. 05-30837

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

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 atthe 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
No. 05-30837

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

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 threatthereofto effectit,’”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
No. 05-30837

38 Id.

14

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 distinctfrom 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.