                              In the

    United States Court of Appeals
                 For the Seventh Circuit
No. 12-3428

GARY W. HELMAN,
                                                Plaintiff-Appellant,

                                v.


BRUCE DUHAIME, et al.,
                                             Defendants-Appellees.

        Appeal from the United States District Court for the
         Northern District of Indiana, South Bend Division.
       No. 3:10-cv-00486-WCL-CAN — William C. Lee, Judge.


    ARGUED MARCH 1, 2013 — DECIDED FEBRUARY 6, 2014


   Before ROVNER, WILLIAMS, and HAMILTON, Circuit Judges.

   ROVNER, Circuit Judge. Gary W. Helman brought an action
under 42 U.S.C. § 1983, alleging that the defendants, law
enforcement officers, violated his constitutional rights under
the Fourth and Fourteenth Amendments by their conduct in
executing an arrest warrant for him on April 9, 2009. In the
course of events, Helman was shot multiple times, and he
asserts that the defendants used excessive force. The district
2                                                  No. 12-3428

court granted summary judgment in favor of the defendants,
and Helman appeals.
   Summary judgment is appropriate only if there is no
genuine issue of material fact that could result in a favorable
judgment to Helman. We take all facts and reasonable infer-
ences in the light most favorable to Helman as the non-moving
party, and review the decision of the district court de novo.
Casna v. City of Loves Park, 574 F.3d 420, 424 (7th Cir. 2009).
    On April 9, 2009, members of the Indiana State Police
arrived at Helman’s residence to execute warrants for his
arrest. They spoke with his brother Michael Helman, and
explained that they were there to arrest Helman, who was in
the home with his mother. The officers hoped to negotiate a
peaceful surrender. Michael Helman then spoke with Helman
in the home before departing the residence. Around noon,
Helman exited the home and spoke with United States Marshal
Brent Cooper and Sergeant Duhaime concerning lawsuits that
Helman had filed in federal court. In response to the officers’
questions as to whether he was armed, Helman pulled up his
shirt to reveal that he was wearing a .45 caliber semi-automatic
handgun. Helman then handed paperwork to the officers and
returned to his residence. The officers informed the other
members of the Indiana State Police that Helman was carrying
a loaded firearm.
   A stalemate ensued for approximately 6 hours, after which
time Helman again exited the house to meet with law enforce-
ment officers. This time, as Helman walked into his backyard
carrying water and a coffee cup in his hands, the Indiana State
Police Emergency Response Team (the ERT) moved in behind
No. 12-3428                                                               3

Helman to prevent him from retreating again into his home.
The ERT then activated a flash bang device to distract Helman.
At this point, the sequence of events becomes less clear.
According to the district court opinion, Helman turned in
response to the commotion caused by the flash bang device,
and upon seeing the ERT, attempted to draw his handgun. At
that time, the officers fired shots at Helman, hitting him
multiple times. Those facts, however, were identified by the
district court as those supported by the defendants’ evidence
of record. But on a summary judgment motion by the defen-
dants, we must take the facts and reasonable inferences in the
light most favorable to the plaintiff. Helman asserts that when
the flash bang device detonated, he turned but he did not reach
for his weapon until after that device went off and shots were
fired at him.
    Subsequently, Helman was charged in state court with
Resisting Law Enforcement under Ind. Code § 35-44-3-3.1
Although resisting law enforcement is normally a Class A
misdemeanor, Helman’s use of a deadly weapon elevated it to
a Class D felony. Helman pled guilty to that charge, acknowl-
edging at the plea hearing that he “did knowingly or intention-
ally forcibly resist, obstruct or interfere with a law enforcement
officer while the officer was lawfully engaged in the execution
of the officer’s duties and while committing said offense …
attempted to draw a deadly weapon.”


1
  We use this version as it is the one that was in effect at the time of his
offense. As part of a comprehensive recodification of Indiana law, that
provision was repealed, and the current statute containing this language
can be found at IC 35-44.1-3-1(a).
4                                                    No. 12-3428

   Helman now argues that the defendant officers violated his
rights under the Fourth and Fourteenth Amendments of the
Constitution in using excessive force against him, and has sued
under 42 U.S.C. § 1983 for redress. He asserts that as a result of
their actions, he incurred medical and hospital expenses and
suffered injuries that are permanently disabling.
    The first issue that we must address is the defendants’
argument that Helman is precluded from bringing this § 1983
action under Heck v. Humphrey, 512 U.S. 477, 486 (1994). In
Heck, the Court held that a district court must dismiss a § 1983
action if a judgment in favor of the plaintiff in that § 1983
action would necessarily imply the invalidity of his criminal
conviction or sentence. Id. at 487; Skinner v. Switzer, 131 S. Ct.
1289, 1298 (2011). But if the claim, even if successful, will not
demonstrate the invalidity of the conviction, then the § 1983
action should be allowed to proceed. Id.
    In Evans v. Poskon, 603 F.3d 362 (7th Cir. 2010), we ad-
dressed the ability of a plaintiff to proceed on a § 1983 exces-
sive force claim where that plaintiff had been convicted of
resisting arrest, and held that the plaintiff can only proceed to
the extent that the facts underlying the excessive force claim
are not inconsistent with the essential facts supporting the
conviction. The police in that case burst into Evans’ home
because they believed he was attempting to strangle someone,
and arrested him after a struggle. He was convicted of at-
tempted murder and resisting arrest. Id. at 363. Evans subse-
quently brought an action under § 1983 alleging that the
officers violated the Fourth Amendment by using excessive
force during and after the arrest. We held that Evans could not
maintain a § 1983 action premised on the claim that he did not
No. 12-3428                                                       5

resist being taken into custody, but could proceed on claims
that the police used excessive force in effecting custody or after
doing so. Id. at 364; see also Burd v. Sessler, 702 F.3d 429, 433–35
(7th Cir. 2012); Moore v. Mahone, 652 F.3d 722, 723 (7th Cir.
2011). The latter claims were not inconsistent with his convic-
tion for resisting arrest. Therefore, in considering whether Heck
requires dismissal, we must consider the factual basis of the
claim and determine whether it necessarily implies the
invalidity of Helman’s conviction. To the extent that factual
allegations do not do so, Helman may proceed under § 1983.
   In this case, the only viable theory of § 1983 liability is
Helman’s theory that he did not attempt to draw his weapon
until after shots were fired at him. That theory is inconsistent
with his conviction for Resisting Law Enforcement under Ind.
Code § 35-44-3-3.
     We begin by considering that criminal provision. The
language of Ind. Code § 35-44-3-3 provides that “[a] person
who knowingly or intentionally … forcibly resists, obstructs,
or interferes with a law enforcement officer … while the officer
is lawfully engaged in the execution of [his] duties … commits
resisting law enforcement … .” Cases interpreting that provi-
sion have held that the officer is not “lawfully engaged in the
performance of his duties” if he is employing excessive force,
and therefore a person who reasonably resists that force cannot
be convicted under that provision. Shoultz v. State of Indiana,
735 N.E.2d 818, 823–25 (Ind. App. 2000). Accordingly, Helman
would not be criminally liable under that statute if he at-
tempted to draw his weapon in response to excessive force. It
follows, then, that the criminal conviction under that statute
necessarily entails a finding that at the time he drew his
6                                                     No. 12-3428

weapon, he did not face the use of excessive force by the
officers.
    Helman’s § 1983 action, however, is premised upon the
assertion that he drew his weapon only in response to the
officers’ use of excessive force. Specifically, he asserts that
when the flash bang device detonated, he had a cup of coffee
and a bottle of water in his hands. He maintains that he did not
reach for his gun until after the officers began firing at him,
and that they fired at him only because he possessed a weapon,
not in response to any action by him in reaching for it. In fact,
he argues to this court that the transcript of his guilty plea does
not contain any admission that he reached for his gun prior to
being shot.
    The problem is that Helman’s version of the facts would
necessarily imply the invalidity of his state court conviction for
resisting law enforcement. It would have been objectively
unreasonable for officers to open fire on a person who was not
reaching for a weapon or otherwise acting in a threatening
manner, and therefore the officers would have been employing
excessive force if they did so. Graham v. Connor, 490 U.S. 386,
396–97 (1989) (the Fourth Amendment reasonableness inquiry
is an objective one, determined in light of the facts and circum-
stances confronting the officers, without regard to their
underlying intent or motivation); Common v. City of Chicago,
661 F.3d 940, 943 (7th Cir. 2011). If Helman attempted to access
the gun only after the officers began firing at him, then Helman
would have been attempting to draw a deadly weapon in
response to excessive force. Accordingly, under Heck, Helman
may not pursue a § 1983 claim premised upon that factual
scenario.
No. 12-3428                                                7

    Helman is left, then, with an argument under § 1983 that
the officers violated his Fourth Amendment rights in shooting
him when he was reaching for his firearm. That claim, how-
ever, cannot survive summary judgment because such a
response is objectively reasonable. In fact, Helman does not
even argue that he could pursue a § 1983 claim under such
scenario. The district court properly held that Helman was
precluded by his conviction from pursuing this § 1983 action.
The decision of the district court is AFFIRMED.
