     Case: 12-60054     Document: 00511988788         Page: 1     Date Filed: 09/14/2012




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                        September 14, 2012
                                         12-60054
                                                                           Lyle W. Cayce
                                                                                Clerk
ERNEST MONTGOMERY,

                                                  Plaintiff-Appellee
v.

BILLY HIGGINS, Deputy, in individual capacity;
MICHAEL HOLLINGSWORTH, Deputy, in individual capacity;
CHRIS SATCHER, Deputy, in individual capacity,

                                                  Defendants-Appellants



                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                               USDC No.5:11-CV-4


Before JONES, Chief Judge, and GARZA and PRADO, Circuit Judges.
PER CURIAM:*
        Three Appellant law enforcement officers challenge the district court’s
denial of their motion to dismiss—on the basis of qualified immunity—a civil
rights suit filed by Appellee Ernest Montgomery. Montgomery alleges the use
of unconstitutionally excessive force when he was arrested after he left the scene
of an auto accident.1 We have carefully reviewed the officers’ contentions in light


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
        1
          The district court dismissed Montgomery’s due process and equal protection claims
arising from the same incident, but Montgomery has failed to cross-appeal that ruling, which
is final.
   Case: 12-60054   Document: 00511988788        Page: 2    Date Filed: 09/14/2012




                                  No. 12-60054

of the oral argument, briefs and the record. Having done so, we are unable to
determine, on the sketchy state of the pleadings on both sides, whether
Appellee’s claim is barred by Heck v. Humphrey, 512 U.S. 477 (1994), or by
principles of qualified immunity, which give the benefit of the doubt to a law
enforcement officer’s reasonable use of force unless no reasonable officer in the
same position could have so acted. See Graham v. Connor, 490 U.S. 386, 396–97
(1989); Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010). Our decision is
without prejudice to Appellants’ right to re-urge their defenses following further
development of the case as the district court sees fit, possibly including limited
discovery pertaining to qualified immunity or a summary judgment ruling based
on affidavits.
                                                           APPEAL DISMISSED.




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