                                                                              FILED
                           NOT FOR PUBLICATION                                  DEC 04 2014

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


EDWARD HARVEY,                                   No. 12-16883

              Plaintiff - Appellant,             D.C. No. 3:10-cv-08025-JWS

  v.
                                                 MEMORANDUM*
COUNTY OF NAVAJO; et al.,

              Defendants - Appellees.


                   Appeal from the United States District Court
                            for the District of Arizona
                   John W. Sedwick, District Judge, Presiding

                    Argued and Submitted November 20, 2014
                            San Francisco, California

Before: GOULD and WATFORD, Circuit Judges, and OLIVER, Chief District
Judge.**

       1. The district court properly denied Edward Harvey’s motion for judgment

as a matter of law as to his claim for unlawful detention. Harvey argues that

Deputy Adams had no reason to detain him after making what Harvey now

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The Honorable Solomon Oliver, Jr., Chief District Judge for the U.S.
District Court for the Northern District of Ohio, sitting by designation.
                                                                          Page 2 of 4
concedes to be a lawful stop for possession of a concealed weapon without a

permit. But Arizona Revised Statutes § 13-3903A granted Deputy Adams broad

discretion to book or release Harvey. The jury was asked to decide whether

Deputy Adams’ exercise of that discretion was reasonable, and found that it was.

Our review is limited to determining whether substantial evidence supports the

jury’s finding. Gilbrook v. City of Westminster, 177 F.3d 839, 856 (9th Cir. 1999).

A reasonable jury could have concluded that awareness of past threats, regardless

of their vintage, was enough for Deputy Adams to book Harvey. And because

Harvey makes no allegation that he was not promptly presented to a neutral

magistrate or that he was unlawfully denied his right to bail, any delay in releasing

him after he was booked is attributable to the decisions of state judicial officers

rather than to any decision of Deputy Adams.

      For the reasons stated above, the district court likewise did not abuse its

discretion in denying Harvey’s motion for a new trial with respect to the unlawful

detention claim. See Molski v. M.J. Cable, Inc., 481 F.3d 724, 728–29 (9th Cir.

2007).

      2. The district court also properly denied Harvey’s motion for judgment as a

matter of law or a new trial as to his unlawful seizure claim. Harvey contends that

the killing of his dogs violated his Fourth Amendment right against unreasonable
                                                                          Page 3 of 4
seizure. Once again, however, the reasonableness of the officers’ conduct was

squarely put to the jury. On the disturbing facts of this record, a reasonable jury

could well have found for Harvey, but the jury in this case did not see things that

way. As with Harvey’s unlawful detention claim, the jury’s verdict with respect to

the unlawful seizure claim rests on substantial evidence. A reasonable jury could

have believed, among other things, that attempting to capture the dogs for transport

would have been dangerous, as Animal Control officers explained; that the shelters

could not have accommodated so many dogs, as shelter employees testified; and

that killing the dogs with rifles was the only humane solution, as a respected

veterinarian concluded.

      3. Finally, Harvey contests the constitutionality of the warrantless search of

his home on May 8, 2009. We do not reach the merits of this claim, as it is barred

by Heck v. Humphrey, 512 U.S. 477 (1994). Under Heck, a plaintiff may not

recover damages for any “harm caused by actions whose unlawfulness would

render a conviction or sentence invalid.” Id. at 486–87. This court has held that “a

§ 1983 action alleging illegal search and seizure of evidence upon which criminal

charges are based does not accrue until the criminal charges have been dismissed

or the conviction has been overturned.” Harvey v. Waldron, 210 F.3d 1008, 1015

(9th Cir. 2000), overruled in part on other grounds by Wallace v. Kato, 549 U.S.
                                                                       Page 4 of 4
384, 393–94 (2007). Because Harvey’s conviction for child abuse, which Harvey

does not allege has been overturned, was based in part on evidence gathered during

the May 8, 2009, warrantless search, Harvey cannot now maintain a § 1983 action

challenging the lawfulness of that search. Doing so would raise “the potential for

inconsistent determinations” that Heck sought to avoid. Harvey, 210 F.3d at 1015.

AFFIRMED.
