Opinion
Civil Action N30. 04-518, Section "A" (1).
December 8, 2004
Before the Court are a Motion for Summary Judgment (Rec. Doc. 57) filed by defendants Daiquiris-Mandeville, Briggs of Mandeville, Inc., and David Briggs Enterprises, Inc., a Motion for Summary Judgment (Rec. Doc. 58) and a Motion to Dismiss Gloria Buie's Claims (Rec. Doc. 32) filed by defendants Thomas Buell, Wade Major, and Kenny Lemulle. All motions are opposed.
On December 1, 2004, the Court held oral argument on the two motions for summary judgment. Both parties agreed that the Court's consideration of the two motions is properly limited to the issue of whether Plaintiffs' claims are precluded by Heck v. Humphrey, 512 U.S. 477, 486 (1994). At the close of oral argument the Court took the matter under advisement for further consideration in light of the arguments raised at oral argument. For the reasons that follow the Court concludes that Heck does not bar Plaintiff's claims. Accordingly, the motions for summary judgment are DENIED. The motion to dismiss is GRANTED IN PART AND DENIED IN PART.
I. BACKGROUND
This is an action for money damages brought pursuant to 42 U.S.C. §§ 1983, 1988, and Louisiana law. On February 24, 2003, Derrick Bramlett ("Bramlett") was involved in a scuffle with another patron at a Mandeville daiquiri shop. Officers Wade Major ("Major") and Kenney Lemulle ("Lemulle") responded — Lemulle was an on-duty Mandeville reserve policeman and Major was an off-duty Mandeville policeman but working a paid detail for the daiquiri shop. Bramlett was sitting in his vehicle when the officers arrived and witnesses identified him as one of the individuals involved in the scuffle. The officers approached Bramlett's vehicle and Major positioned himself in front of the vehicle while Lemulle approached from the driver's side. The officers attempted to get Bramlett to exit the vehicle but instead of exiting the vehicle Bramlett started the engine and accelerated toward Major. The officers fired several shots at the vehicle as it moved forward and after Major had jumped out of the vehicle's path. Bramlett was shot once in the head and twice in the back.
Bramlett claims that the officers' use of deadly force was unreasonable and excessive in violation of his Fourth Amendment rights. He seeks damages against Wade and Lemulle in their individual capacities pursuant to 42 U.S.C. § 1983. Bramlett also claims that Chief Thomas Buell ("Buell") of the Mandeville Police Department is liable in his official capacity because he developed and maintained policies and customs that caused the deprivation of Bramlett's rights. Bramlett also claims that Major and Buell are liable under state tort law. Bramlett's mother, Gloria Buie, alleges that she cared for him during his extended recovery and she seeks her own damages from Wade and Lemulle under state law. Bramlett and Buie claim that Chief Buell is liable for the state law claims against Major and Lemulle under the doctrine of respondeat superior. The claims against the daiquiri defendants are also based on respondeat superior because Major was working a paid detail at the daiquiri shop.
Bramlett went to trial in St. Tammany Parish on charges of attempted first degree murder of Officer Major and first degree vehicular negligent injuring of 3 pedestrians. The jury returned a responsive verdict of aggravated battery against Major (felony) and 3 counts of vehicular negligent injury to pedestrians (misdemeanor).
II. MOTIONS FOR SUMMARY JUDGMENT 1. The Parties' Contentions
Citing Heck v. Humphrey, 512 U.S. 477, 486, 114 S. Ct. 2364, 129 L. Ed. 2d 383 (1994), and its progeny, Defendants argue that Bramlett's criminal convictions preclude all claims in this lawsuit, both personal (Bramlett's) and derivative (Buie's), whether based on federal or state law. Defendants argue that the state criminal convictions necessarily imply that the police did not use excessive force in this case.
In opposition, Bramlett denies that a judgment in his favor on the excessive force issue would be inconsistent with his criminal convictions because the battery against Major occurred prior to the use of excessive force.
Neither side adequately analyzed the preclusive effect of the misdemeanor convictions in their memoranda but both sides were allowed to articulate their respective positions at oral argument. 2. Law and Analysis
In Heck v. Humphrey, the Supreme Court held that a § 1983 plaintiff seeking to recover money damages for an injury caused by actions whose unlawfulness would render a conviction invalid must prove that the conviction has either been reversed on appeal or called into question by the issuance of a writ of habeas corpus. 512 U.S. at 486-87. The Heck Court emphasized that its holding grew out of a concern that a prisoner should not be permitted to collaterally attack a conviction by means of a civil suit brought under § 1983. Id. at 485. Thus, at the core ofHeck is a proscription against allowing a civil tort suit to cast doubt on a criminal conviction. Id. at 487. However, where no conflict exists between the conviction and the claims involved in the civil complaint, the § 1983 suit must be allowed to proceed. Id.
In Arnold v. Town of Slaughter, No. 03-30941, 2004 WL 1336637 (5th Cir. June 14, 2004) (unpublished), the Fifth Circuit recognized the inherent difficulty of making a Heck determination in certain excessive force cases. For instance, in Arnold, the plaintiff had been convicted of resisting arrest but later sued the arresting officer under § 1983 for using excessive force. The Fifth Circuit found that Heck applied because Arnold's assertion in the civil case was that he had done nothing wrong but had nonetheless been viciously attacked by the officer for no reason. Id. at 324. Meanwhile, in the criminal case, the trial judge had made a specific finding that Arnold had resisted the officer by being hostile and threatening and by initiating the confrontation. Id. The Fifth Circuit concluded that a judgment in Arnold's favor based upon the theory that the officer had used force against him for no reason whatsoever would be contrary to his standing conviction. In other words, if the trial judge had believed the theory that Arnold was trying to espouse in the civil case, then the judge could not have found him guilty for resisting arrest. Because a judgment in favor of Arnold in the civil case could have only been based upon factual findings that were rejected in the criminal case, Heck applied to bar the claim.
Under the local rules of the Fifth Circuit, unpublished opinions are not binding but can be used persuasively. 5th Cir. Loc. R. 47.5.4. Arnold is particularly useful because it presents a fairly recent recapitulation of Heck and its progeny as applied to excessive force claims in the Fifth Circuit.
Of particular interest to this Court, however, is the Arnold court's unequivocal recognition that a criminal conviction is not a per se bar against a subsequent § 1983 excessive force claim.Arnold, No. 03-30941, 2004 WL 1336637, at *2 (citing Hudson v. Hughes, 98 F.3d 868, 873 (5th Cir. 1996) ("By proving an excessive force claim, a plaintiff will not invariably invalidate his conviction."). Rather, only "certain convictions" will bar an excessive force claim. Id. The Fifth Circuit cases of Hainze v. Richards, 207 F.3d 795 (5th Cir. 2000), Sappington v. Bartee, 195 F.3d 234 (5th Cir. 1999), and Hudson v. Hughes, 98 F.3d 868 (5th Cir. 1996), demonstrate when "certain convictions" will trigger Heck.
In Hainze v. Richards, the Fifth Circuit upheld the district court's dismissal under Heck. 207 F.3d at 797. Police officers had responded to a 911 call regarding the plaintiff who had a knife. As the officers approached plaintiff he ignored orders to drop the knife and kept coming toward the officers. They shot him. The plaintiff was convicted of aggravated assault with a deadly weapon against a police officer. Plaintiff later brought a civil suit against the officers claiming that they had used excessive force when they shot him. The Fifth Circuit concluded that Heck barred the claim because when the elements necessary for an aggravated assault under Texas law are present, the use of deadly force is permissible as a matter of law. Id. at 798-99.
Sappington v. Bartee dealt with a very similar situation. The plaintiff had been convicted of aggravated assault of a police officer under Texas law but later filed a § 1983 suit claiming excessive force against several of the officers on the scene. The officer who was the subject of the aggravated assault conviction moved for summary judgment, which the district court denied, but the Fifth Circuit reversed finding that the claim was barred by Heck. Sappington, 195 F.3d at 236-37. Just as in Hainze, the court looked to the elements required for proving the specific conviction at issue, i.e., an aggravated assault. Because plaintiff was convicted of aggravated assault under Texas law, it was established that he had caused "serious bodily injury" to the officer. And because plaintiff had caused "serious bodily injury" to the officer, the officer's use of force could not be excessive as a matter of law. Id. at 237.
At the beginning of the opinion the Fifth Circuit states that the officer was entitled to judgment as a matter of law based upon qualified immunity. Sappington, 195 F.3d at 235. However, the Fifth Circuit's analysis was based solely onHeck.
Finally, in Hudson the plaintiff had been convicted of inter alia battery of a police officer due to conduct during his arrest. Hudson later filed a § 1983 suit claiming that the officer had used excessive force in arresting him. The district court dismissed the suit as being barred by Heck and the Fifth Circuit affirmed. 98 F.3d at 872. The Fifth Circuit noted that under Louisiana law self-defense is a justification defense to battery of an officer. Thus, the jury would not have convicted Hudson had any of resistance he used against the officer been justified. But because the jury in effect sided with the officer's version of events, the officer's use of force could not be excessive. Id. at 873. Thus, Heck barred the claim.
Because all of these cases found that Heck applied to excessive force claims where the plaintiff had been convicted of battering an officer, one might be inclined to conclude that whenever an individual is so convicted that he cannot maintain a subsequent suit for excessive force arising out of the same set of facts. But nothing in Heck and its progeny support the proposition that a § 1983 excessive force claim is barred merely because the same set of events give rise to both the criminal conviction and the excessive force claim. Rather, cases likeHainze, Sappington, and Hudson teach that a Heck determination is a very analytical one and focuses on 1) the specific elements that comprise the conviction at issue, and 2) the specific facts being alleged in the civil case. And after delving into both of these aspects of the case, Heck will apply only where the criminal conviction and the civil claim are inconsistent.
Based on the foregoing, the Court is confident that Bramlett's conviction for aggravated battery against Officer Major has no preclusive effect under Heck on the excessive force claim. It is undisputed in this case that the officers shot at Bramlett after the aggravated battery against Major had been consummated. Major explained at the criminal trial that the officers shot at Bramlett after Major had jumped out of the moving vehicle's path. Thus, Major did not shoot Bramlett in self-defense in order to protect himself from an attempted murder or from an aggravated battery. In fact, Major explained at trial that the sole reason that the officers fired at Bramlett was to protect the bystanders who faced potential injury had Bramlett been allowed to continue to drive the vehicle through the crowd. Because the battery upon Major was completed before the officers shot Bramlett to protect the bystanders, a finding in this case that the officers stepped over the line in shooting Bramlett would do nothing to undermine the conviction for aggravated battery.
Moreover, Bramlett's case is factually distinguishable from excessive force cases like Hainze, Sappington, and Hudson in one key respect: In those cases the force used by the officer occurred simultaneously with the force exhibited by the plaintiff. Where the force occurs simultaneously yet the jury convicts the plaintiff of a crime that would justify the officer's use of such force, naturally Heck would apply because it would be inconsistent to allow the plaintiff to recover money damages against the officer when the jury implicitly found the officer's conduct justified. For instance, had Major testified that he shot Bramlett in self-defense to prevent being run over, then Bramlett's conviction for aggravated battery would most likely trigger Heck. But notwithstanding the fact that the entire matter transpired in a matter of seconds, it is an established fact that all of the elements necessary to complete the aggravated battery occurred before the officers shot Bramlett. Thus, if the jury were to conclude that the officers' decision to shoot Bramlett was excessive in light of their asserted goal of protecting the bystanders, that would do nothing to undermine the fact that seconds earlier Bramlett had committed an aggravated battery upon Officer Major.
Note that the Court's finding that the aggravated battery was a separate incident from the shooting for Heck purposes does not necessarily translate to all defenses in this lawsuit. For instance, when the reasonableness of the officers' conduct is evaluated in light of the circumstances, they will surely point to the fact that Bramlett had just attempted to run Major over with his vehicle when they made the judgment call to shoot him. Bramlett may not agree with the facts surrounding the aggravated battery but in light of his conviction, Heck will bind him to the facts that the jury must have found in order to convict him of aggravated battery.
This conclusion is buttressed by Smithart v. Towery, 79 F.3d 951 (9th Cir. 1996), a case that the Fifth Circuit discussed with approval in Arnold. In Smithart, the plaintiff pled guilty to assault with a deadly weapon after he tried to run police officers over with his truck. After his conviction, Smithart filed a § 1983 suit claiming that when the officers finally arrested him they used excessive force. The Ninth Circuit concluded that for Heck purposes, a finding that excessive force had been used during the arrest following the assault would do nothing to undermine the fact that Smithart had tried to run over the officer. Smithart, 73 F.3d at 952-53.Smithart is compellingly analogous to this case and the Fifth Circuit discussed it in Arnold in detail as being consistent with its own jurisprudence.
The next question is whether the three misdemeanor convictions for vehicular negligent injuring trigger Heck. Although Major, Lemulle, and Buell devoted none of their memorandum to analyzing these convictions, defense counsel clarified at oral argument Defendants' belief that these three convictions create a seriousHeck problem for Bramlett. The conduct that lead to the convictions for negligent injuring occurred simultaneously with the shooting so the negligent injuring convictions require a more in depth analysis. Again,Heck requires the Court to determine whether the facts as alleged in this civil suit would be inconsistent with the facts that the jury necessarily had to find in the criminal case in order to convict Bramlett.
Bramlett was convicted on three counts of vehicular negligent injury in violation of La.R.S. 14:39.1. Louisiana R.S. 14:39.1, Vehicular Negligent Injuring, provides in pertinent part:
Vehicular negligent injuring is the inflicting of any injury upon the person of a human being when caused proximately or caused directly by an offender engaged in the operation of, or in actual physical control of any motor vehicle, aircraft, watercraft, or other means of conveyance whenever any of the following conditions exists:
(1) The offender is under the influence of alcoholic beverages.
. . . .
La.Rev.Stat. Ann. § 14:39.1 (West Supp. 2004). In order for the jury to convict Bramlett under this statute, the jury necessarily had to conclude that he was under the influence of alcohol or some other controlled substance, that he was operating a motor vehicle, and that he injured someone. Unlike the criminal statutes involved in Hainze and Sappington, supra, a conviction under this statute does not establish the infliction of serious bodily injury. Moreover, vehicular negligent injuring is a misdemeanor offense. Thus, unlike Hainze and Sappington, the use of deadly force in this case was not justified as a matter of law for purposes of Heck.
The Court is confident that the conduct required for a conviction under this statute justifies the use of some force against the offender in order to protect others. Had the officers used something short of deadly force in order to stop Bramlett then Heck might very well apply. However, the conclusion that the officers stepped over the line in using deadly force to stop Bramlett in no way undermines the fact that he was intoxicated, operating a vehicle, and inflicted injury. Because a favorable judgment on the excessive force claim would not contradict the misdemeanor convictions for vehicular negligent injuring, Heck does not apply. Accordingly, the motions for summary judgment are DENIED.
III. MOTION TO DISMISS GLORIA BUIE'S CLAIMS
Major, Lemulle, and Buell move to dismiss Gloria Buie's claims against them. They assert that she fails to state a claim under Louisiana law.
Buie is Bramlett's mother. According to her complaint she is domiciled in Alabama and has been Bramlett's primary caregiver since his release from Charity Hospital on March 8, 2003. She claims damages for mental and emotional anguish, and loss of society and companionship under La. Civ. Code article 2315. Buie now concedes that she has no cause of action under Louisiana law for her own mental damages. Thus, only her claim for loss of consortium remains.
Defendants argue that Buie cannot have a claim for loss of society and companionship because she didn't even live in the same town as her son. Defendants assert that in order to recover from injury to an adult child the parent must allege some type of loss from the child's injury. Buie counters that she has alleged loss of society and companionship and that for purposes of a motion to dismiss she need not do more.
Given that this matter is before the Court on a motion to dismiss the Court agrees. Very little discovery has been conducted in this case so the Court is not in a position to test whether Buie can meet her burden of proof at trial. For now it suffices to say that she has alleged a claim for loss of consortium. The motion to dismiss is therefore GRANTED IN PART as to the claim for mental damages and DENIED IN PART as to the claim for loss of consortium.
Accordingly;
IT IS ORDERED that the Motion for Summary Judgment (Rec. Doc. 57) filed by defendants Daiquiris-Mandeville, Briggs of Mandeville, Inc., and David Briggs Enterprises, Inc. should be and is hereby DENIED; IT IS FURTHER ORDERED that the Motion for Summary Judgment (Rec. Doc. 58) filed by defendants Thomas Buell, Wade Major, and Kenny Lemulle should be and is hereby DENIED; IT IS FURTHER ORDERED that the Motion to Dismiss Gloria Buie's Claims (Rec. Doc. 32) filed by defendants Thomas Buell, Wade Major, and Kenny Lemulle is GRANTED IN PART AND DENIED IN PART as explained above.