                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 19a0182n.06

                                         Case No. 18-5868

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                                                                      FILED
                                                                                 Apr 10, 2019
LEANN PHILLIPS,                                       )                     DEBORAH S. HUNT, Clerk
                                                      )
       Plaintiff-Appellant,                           )
                                                      )      ON APPEAL FROM THE UNITED
v.                                                    )      STATES DISTRICT COURT FOR
                                                      )      THE EASTERN DISTRICT OF
LARRY C. CURTIS, II; CITY OF                          )      KENTUCKY
GEORGETOWN, KENTUCKY,                                 )
                                                      )
       Defendants-Appellees.                          )
                                                      )

       BEFORE: GUY, SUTTON, and NALBANDIAN, Circuit Judges.

       SUTTON, Circuit Judge. The nature of police work means that police sometimes use force.

The nature of the Fourth Amendment means that police may not use force unreasonably. Officer

Larry Curtis shot Leann Phillips at some unspecified point after Phillips drove her car into a police

cruiser. Phillips launched this lawsuit against Curtis and his employer, the City of Georgetown.

Later, in truth five years later, Phillips pleaded guilty to wantonly endangering Curtis’s life. After

holding the case in abeyance until the resolution of the criminal case, the district court dismissed

Phillips’s civil suit under Heck v. Humphrey, 512 U.S. 477 (1994), reasoning that her criminal

conviction necessarily implied that Curtis used force reasonably. We reverse and remand.

       Here’s what Phillips says happened. In May 2012, her abusive boyfriend assaulted her.

When the police arrived to see what was going on, she tried to run away. She got into her car and,
Case No. 18-5868, Phillips v. Curtis et al.


while still upset, struck a police cruiser. The officers ordered her to stop and tried to break the

car’s windows when she refused to turn off the car. Her vehicle moved forward slowly, with

several officers to the side and rear. Nevertheless, Curtis “without probable cause or justification

shot” her “in the back” through the rear window. R. 1-1 at 2.

       Shortly after the incident, Kentucky indicted Phillips on three counts of wanton

endangerment for “manifesting an extreme indifference to the value of human life” when she drove

toward Curtis and two other officers, placing them in “substantial danger of death or serious

physical injury.” R. 25-3 at 1–2. Roughly a year later, Phillips launched this civil lawsuit alleging

that Curtis used excessive force in violation of the Fourth (and Fourteenth) Amendment, that

Georgetown failed to train and supervise Curtis, and that both defendants violated state tort law.

In February 2018—five plus years after the incident—Phillips pleaded guilty to wantonly

endangering Curtis.

       Under Heck v. Humphrey, someone convicted of a crime cannot bring a § 1983 lawsuit “if

a judgment in [her] favor . . . would necessarily imply the invalidity of [her] conviction or

sentence.” 512 U.S. at 487. To prevail on her Fourth Amendment claims, Phillips must prove that

Curtis used objectively unreasonable force under the totality of the circumstances. See Graham v.

Connor, 490 U.S. 386, 396 (1989). An officer like Curtis may use deadly force on a fleeing suspect

if “the officer has probable cause to believe that the suspect poses a threat of serious physical harm,

either to the officer or to others.” Tennessee v. Garner, 471 U.S. 1, 11 (1985). Meanwhile,

Phillips’s conviction determined conclusively that she had placed Curtis’s life at some point in

“substantial danger of death or serious physical injury.”

       To determine whether a civil judgment and a criminal conviction would “necessarily”

conflict, courts look to many considerations, including the timing of the alleged constitutional



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violation and the criminal conduct. See Hayward v. Cleveland Clinic Found., 759 F.3d 601, 612

(6th Cir. 2014) (“[A] court must carefully examine the facts and the temporal sequence of the

underlying offense and the alleged unconstitutional conduct . . . .”). Generally speaking, for

example, if an individual is convicted of resisting arrest, that conviction bars claims that the police

used excessive force during an arrest. See id. A victory in a damages suit thus would mean that

the officer used force improperly, while the conviction for resisting arrest would dictate the

opposite conclusion. See id. That is a classic Heck problem. But a person convicted of resisting

arrest may still allege that an officer used excessive force after the arrest occurred. In that situation,

the civil suit and the conviction potentially deal with separate moments and potentially can coexist

without contradicting one another. See id.; Matheney v. City of Cookeville, 461 F. App’x 427, 431

(6th Cir. 2012); Sigley v. Kuhn, 205 F.3d 1341 (6th Cir. 2000) (unpublished table decision); see

also Lucier v. City of Ecorse, 601 F. App’x 372, 377 (6th Cir. 2015).

        In this case, Phillips purports to identify two separate incidents, one when she endangered

Curtis, the other when he opened fire. To be sure, if the two incidents happened at roughly the

same time—or in legitimate response to one another—Heck would bar her lawsuit. For placing

Curtis in substantial danger of serious death or injury would mean that, at that moment, Curtis

could use deadly force. See Garner, 471 U.S. at 11. But Phillips says that she placed Curtis’s life

in jeopardy at point one, she ceased to be a threat at point two, and only after that did Curtis shoot

her. Under that scenario, assuming a material gap in time between the two events, her victory in

this lawsuit would not necessarily invalidate her criminal conviction.

        All of this means that the district court applied Heck prematurely in granting the

defendants’ motion to dismiss. Limited discovery should flesh out the nature of Phillips’s plea

and the timing of her conduct and the shooting. We realize that seven years have passed since the



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events in question. Under these circumstances, it is imperative that the district court require

Phillips (and, where necessary, the officers) promptly to provide answers to these questions or the

lawsuit should be dismissed for failure to prosecute it.

       We reverse and remand for proceedings consistent with this opinion.




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