Government Liability Update

Because County Sheriff Who Enforces County Bail Schedule Acts as an Instrument of the State, the State Is Liable for Section 1988 Attorney Fees if the Enforcement Violates the Fourteenth Amendment

In Buffin v. City and County of San Francisco, published January 13, 2022, the 9th Circuit Court of Appeals affirmed a district court decision awarding $1,950,000 in attorney fees against the State of California under 42 U.S.C. section 1988.  A class action was brought under 42 U.S.C. section 1983  against a county sheriff for enforcing the county's bail schedule.  The action alleged that the enforcement of the bail schedule without consideration of financial circumstances violated the Fourteenth Amendment.  Under the statutory scheme, when a suspect was arrested without a warrant and had not had his or her first hearing, bail is set by the sheriff in an amount dictated by a uniform countywide schedule of bail.  State law imposes a duty upon the Superior Court of each county--an arm of the state--to adopt the county-wide bail schedule.  The county sheriff must comply with the schedule, without discretion.  The sheriff and the state attorney general were named as defendants. The district court ruled that the sheriff acted on behalf of the state in enforcing the bail schedule.  As a state actor, the sheriff received Eleventh Amendment immunity from monetary damages, as did the Attorney General.  But the class could seek injunctive or declaratory relief against the sheriff in her official capacity under Ex Parte Young, on the ground that the sheriff enforced the allegedly unconstitutional law.  The Attorney General was dismissed.  The Attorney General did not take over the defense of the action.  The class prevailed on summary judgment.  The parties agreed to the amount of the attorney fees.  The district court then decided that the state was liable for the attorney fees.  The state appealed.

The Court of Appeals ruled that the district court had acted within its discretion.  Case law established that the state's Eleventh Amendment immunity from monetary damages under 42 U.S.C. section 1983 did not bar its liability for attorney fees under section 1988.  An issue of first impression in the 9th Circuit was who should be liable for attorney fees in this situation--the state, the county, or the official-capacity defendant.  The state argued that because it was not a party to the suit, it should not be held liable for the fees.  The 9th Circuit followed the reasoning of sister circuits and ruled that because the official-capacity defendant, the sheriff, was sued for acting as a discretionless instrument of the state, the state was properly held liable for the fees.  The state had both notice and an opportunity to contest the fees, although it did not do so. 

Officers Allegedly Violated Clearly-Established Law by Using Taser and Restraint Hold on Detainee Who Had Stopped Resisting

In Hyde v. City of Willcox, published January 6, 2022, the 9th Circuit affirmed in part and reversed in part a district court's denial of a motion to dismiss an action brought under 42 U.S.C. section 1983.  The plaintiffs' complaint alleged that decedent had mental health issues managed through medications.  He was arrested on suspicion of driving under the influence.  While detained, he did not receive his prescribed medication.  After several hours, he became restless and charged around the booking area and female cell area, falling once and injuring himself.  The officers tased and struck the decedent multiple times, as they restrained him with handcuffs and leg irons and placed him in a restraint chair.  The decedent stopped breathing.  The officers were unable to revive him.  He died in the hospital the next day.  Causes of death included blunt force injuries, kidney damage caused by muscle breakdown, enlarged heart, and coronary artery atherosclerosis.  The decedent's parents sued the officers for use of excessive force, the municipal and supervisory defendants for failure to train, and all defendants for violating substantive due process and equal protection.  The defendants moved to dismiss on the grounds that the individual officers were entitled to qualified immunity and the plaintiffs had failed to plausibly plead a case for Monell liability.  The defendants appealed the denial of qualified immunity, and asked the 9th Circuit to exercise pendant appellate jurisdiction over the Monell claim.

The 9th Circuit ruled that the complaint plausibly alleged that two of the officers violated the decedent's clearly-established constitutional rights.  Until the decedent was subdued and restrained, the officers' uses of tasers, blows, and restraints were reasonable.  Although the plaintiffs alleged that use of force against a mentally ill person was unreasonable, the complaint did not plausibly allege that the officers knew of the decedent's mental conditions or his prescriptions.  Instead, the complaint alleged that the decedent was calm and cooperative until he began running around and injuring himself.  But two officers' use of a taser and a restraint hold after the decedent was subdued and restrained was unreasonable.  Although the complaint was less than clear about the decedent's actions, and the parties did not include the jail video in the record, the court construed the complaint in favor of the plaintiffs.  Ninth Circuit case law clearly establishes use of intermediate force, such as a head restraint or taser, on a restrained and non-resisting suspect is unreasonable.  It also makes clear that officers must reassess use of force in an evolving situation as circumstances change.  The two officers allegedly had two minutes to realize the decedent, who was handcuffed, shackled, and exhausted, could no longer resist and did not pose a threat.  The court therefore affirmed the denial of qualified immunity to those officers.  But the panel reversed the ruling that the complaint plausibly alleged denial of medical care by denying him access to his medication and by not providing him medical care after the altercation.  The complaint did not plausibly allege that the named defendants played any role in denying the decedent his medication.  It also did not plausibly allege that the defendant officers knew the decedent was in medical distress after the melee.  Qualified immunity thus barred the claim.  The supervisor defendants were entitled to qualified immunity for the failure to train claim.  The plaintiffs did not allege any basis for the claim other than this single incident, which is inadequate to make out a claim for failure to train.  Because the municipalities' Monell liability was intertwined with the supervisors' liability (since the complaint relied on the same facts in alleging failure to train against the supervisors and municipalities), the court had jurisdiction to entertain the challenge to the failure to dismiss the Monell claim, and reversed it.

Because Parole Agents Did Not Enter into Special Relationship with Victim Murdered by Her Parolee Grandson, Their Employing Agency Could Not Be Held Liable for Negligence

In Russell v. Department of Corrections and Rehabilitation, published December 16, 2021, the Third Appellate District reversed a trial court’s denial of judgment notwithstanding the verdict after a jury trial.  The plaintiff was the son of a woman who was raped and murdered by her grandson, a parolee who suffered from severe mental illness and substance abuse.  The victim had raised the grandson and treated him like a son.  One of the defendants was the grandson’s parole agent from 2007 to 2012, and the other was the parole agent from 2012 to the month of the victim’s murder in 2013.  From 2007 to 2011, the grandson lived with the victim while the grandson was on parole.  The first parole agent and the victim interacted at least twice a month and were friendly.  The agent authorized the grandson living at the victim’s house.  He regularly drug tested the grandson, assisted the victim by ordering the grandson to obtain mental health treatment when he appeared unstable, and agreed to help the grandson find his own place to live.  He advised the victim not to give the grandson all of his Social Security money at once, so that he would have enough money through the month.  In 2011, the grandson was arrested for sex crimes.  In 2012, the grandson was released from state hospital.  He went to stay with the grandmother at her house.   When the second parole agent took over the case, the grandson was homeless, and the grandmother wanted him to stay at her home.  The parole agent informed them that they could not live together, because the house was too close to a school and the grandson was a registered sex offender.  The agent eventually told her that the grandson could be at her home during the day, but had to leave at night.  There was disputed evidence the agent  promised the grandmother that he would find the grandson his own place to live.  The grandson repeatedly absconded and cut off his GPS tracking device.  At one point, the grandson was arrested at the victim’s house by a fugitive apprehension team.  The grandmother was allowing the grandson to live with her.  In late 2012 or early 2013, the grandmother called the agent and told her the grandson was “acting out,” and that the grandmother had had to pull a knife on him. In February 2013, the grandson was jailed and released.  Three days later, the grandson killed the grandmother.  The plaintiff sued the Department of Corrections and the parole agents for negligence.  At trial, the court instructed the jury to determine whether the agents were in a special relationship with the grandmother.  The jury found a special relationship existed, that the agents breached a duty of care to the grandmother, and that the breach caused the rape and murder.  The jury apportioned 60% fault against the Department.  The trial court denied the Department’s JNOV motion.

The Court of Appeal ruled that the trial court had erred in submitting the issue of whether a special relationship existed to the jury.  A person does not owe another person a duty to warn or protect against a third party’s acts unless there exists a special relationship between the parties (or between the defendant and the third party) or some other set of circumstances giving rise to an affirmative duty.  Whether a duty exists is an issue of law for the court, not an issue of fact for the jury.  Although the Department did not object to the special relationship instruction to the jury, a party does not forfeit application of the proper standard of review by failing to object in the trial court.  Further, the Department stated in briefing that the duty issue was one of law.  The appellate court therefore examined the evidence de novo to determine whether a special relationship existed, viewing the facts in the light most favorable to the plaintiff.  The court determined that neither agent formed a special relationship with the grandmother that would have given rise to a duty to warn her of the grandson’s dangerous propensities.  Neither agent made an express or implied promise of protection to the grandmother that caused her to detrimentally rely on the promise.  Neither agent lulled the grandmother into a false sense of security, inducing detrimental reliance and causing her to worsen her position.  Neither created a foreseeable peril to the grandmother that was not readily discoverable by the grandmother.  The court therefore reversed the judgment. 

Officer Entitled to Qualified Immunity for Enforcing Separation of Protesters and Counterprotesters

In Saved Magazine v. Spokane Police Department, published December 9, 2021, the 9th Circuit affirmed summary judgment in favor of a police officer and the city that employed him.  At a library's children's book reading event called "Drag Queen Story Hour," the police separated protesters and counterprotesters into separate zones near the library.  The plaintiff, wearing a press badge, identified himself to police as a member of the press.  The defendant officer escorted the plaintiff to the entrance of the library, and warned him he would be subject to arrest if he stated "engaging people" or caused "a problem," but that he could "act as the press and report on" the event.  The plaintiff alleged that he was assigned a police detail to accompany him through a crowd of counterprotesters out of concern he was "fake press."  The defendant officer allegedly alerted all units that the plaintiff had been arrested at a previous protest, and would be allowed to move freely through the event until he started causing problems; and that the plaintiff had been warned that he was subject to arrest if he did so.  While the plaintiff was walking through the counterprotesters, he answered questions from a counterprotester.  An officer then told the plaintiff he was not exercising his press rights, but engaging a protester.  The plaintiff stated he wanted to walk through the counterprotesters, and the officer directed counterprotesters to get out of the way and let the plaintiff walk through the zone.  The plaintiff sued the city, the police department, the defendant officer, and others, alleging violation of his First Amendment rights. 

The court of appeals ruled that the district court had correctly granted the officer summary judgment based on the second prong of qualified immunity--that the defendant's actions did not violate clearly established law.  No precedent established that a police officer violated an individual's First Amendment rights by enforcing a city's establishment of protester and counterprotester zones, particularly since the plaintiff did not allege the separation itself was unconstitutional.  The claim against the city failed because the plaintiff had failed to plausibly allege a custom, policy, or practice of the city that led to a constitutional violation.

Officers Did Not Violate Clearly-Established Law by Accepting Arrestee's Representations about Her Health

In J.K.J. v. City of San Diego, published November 15, 2021, a divided panel of the 9th Circuit Court of Appeals dismissal of a complaint against defendant city and officers.  The defendant officers stopped a car with an expired registration.  The decedent was riding in the car as a passenger.  The officers questioned the decedent, who was coherent and showed no signs of distress.  The officers learned there was an outstanding arrest warrant for the decedent involving a prior methamphetamine offense.  They handcuffed her and put her in their vehicle.  The officers searched the stopped car and found a saran-like plastic commonly used for narcotics sales.  They found no drugs.  Inside the police cruiser, the decedent vomited.  One of the officers called for paramedics.  The officers asked decedent if she was detoxing or withdrawing.  The decedent replied, "No," and stated that she was sick, her stomach was turning, and that she was pregnant.  One of the officers called off the paramedics.  An officer asked if she ate something.  She shook her head and said, "Mmm-mm."  The officers began the hour-long drive to the police station.  En route, the decedent told the officers she did not want to go to jail; requested water and a bathroom break; and groaned and screamed on several occasions.  At one point, she screamed for help.  One of the officers asked her what was going on.  She remained silent for ten minutes.  The officers stopped the car to check on her.  An officer opened the door and told her she needed to stay awake.  When she screamed she needed help, the officers told her to knock it off and that she was fine.  On arrival (about three minutes after that incident), decedent was lying face down across the backseat.  She screamed and breathed rapidly.  One of the officers told her to stop hyperventilating.  The officers removed the decedent from the cruiser to the pavement, and fingerprinted her as she lay on her side.  The officers asked if she wanted water, and she requested water.  They returned her to the cruiser.  Eleven minutes later, decedent had fallen unconscious.  The officers immediately removed her from the car, called paramedics, and performed CPR.  Decedent fell into a coma and died.  The plaintiff, decedent's child, alleged decedent died from an overdose.  The plaintiff sued under 42 U.S.C. section 1983 for denial of medical care under the Fourth Amendment, denial of due process, and Monell liability for the city.  The district court granted the motion, ruling that the complaint failed to state a plausible claim for denial of medical care; that the officers were entitled to qualified immunity; and that the complaint failed to state a Monell claim against the city.

The panel majority agreed with this rulings.  It affirmed the district court's decision to consider a publicly-available video of the incident that was incorporated into the complaint by reference.  Where the complaint makes conclusory allegations contracted by a document incorporated by reference into the complaint, the court may decline to accept the conclusory allegations as true.  The district court properly limited its consideration of the video according to this rule.  The district court properly dismissed the Monell action.  Although the complaint alleged failure to train, it failed to allege facts showing a failure to train caused this incident.  Instead, the complaint alleged that the officers departed from their training.  For the defendant officers, the appellate court ruled that they were entitled to qualified immunity on both prongs.  On the first prong, the facts alleged in the complaint failed to show the objective reasonableness that would be necessary to state a claim for denial of medical care under either the Fourteenth Amendment (due process) or the Fourth Amendment (excessive force).  The officers' actions--including taking the arrestee's representations about her status at face value--were objectively reasonable under the circumstances.  Arguments that the officers should have concluded the decedent had ingested drugs, and that she was not pregnant, were merely exercises of 20-20 hindsight.  The test is whether the officers acted reasonably under the circumstances.  On the second prong, the plaintiff was unable to identify any precedent that clearly established under similar circumstances that the officers' actions violated the requirement to provide a detainee or arrestee with medical care.

A judge, dissenting in part, opined that the complaint stated a plausible case against at least one of the officers for failing to take action in light of an acute medical emergency.

Officers Did Not Violate Clearly Established Law by Using Deadly Force against Suspect Who Threatened Officers with Hammer

In City of Tahlequah v. Bond, published October 18, 2021, the U.S. Supreme Court, per curiam, reversed a 10th Circuit decision reversing summary judgment for officer defendants.  The officers responded to a call that the complaining party's ex-husband was in her garage, was intoxicated, and would not leave.  The officers went to the side-entrance of the garage and attempted to persuade the suspect to submit to a pat-down search.  He refused.  One of the officers stepped toward the doorway.  The suspect stepped back and walked toward the back of the garage, where his tools were hanging.  The officers followed, and ordered him to stop.  The suspect kept walking.  He grabbed a hammer in both hands and pulled it up to shoulder level.  The officers drew their guns and ordered the suspect to drop the hammer.  The suspect did not do so, and instead walked around furniture so that he had a clear path toward an officer.  He raised the hammer higher back behind his head, as if to throw the hammer or charge the officers.  The defendant officers fired and killed the suspect.  The suspect's estate sued the officers under 42 U.S.C. section 1983, alleging use of excessive force.  The district court granted the officers summary judgment based on qualified immunity.  The 10th Circuit concluded the officers violated the Fourth Amendment by engaging in conduct that brought about the use of deadly force, and held that several cases clearly established the officers' actions were unlawful.

The Supreme Court declined to rule whether the officers violated the Fourth Amendment, or whether recklessly creating a situation that requires deadly force can itself violate the Fourth Amendment.  None of the cases the 10th Circuit relied on dealt with a situation where the officers engaged in a conversation with the suspect, followed him into a garage at a distance of 6 to 10 feet, and did not yell until he picked up a hammer.  The most similar case involved officers sprinting toward a potentially suicidal person and attempting to wrest a gun from his hands.  Because neither the circuit nor the plaintiff could identify a single precedent finding a Fourth Amendment violation under similar circumstances, the officers were entitled to qualified  immunity.

Officers Did Not Violate Clearly Established Law by Pressing on Prone Suspect's Back with Knee while Handcuffing Suspect

In Rivas-Villegas v. Cortesluna, published October 18, 2021, the U.S. Supreme Court, per curiam, reversed a 9th Circuit ruling dreversing summary judgment in a 42  U.S.C. section 1983 case.  A 12-year-old called 911 reporting that her mother's boyfriend had a chainsaw and was trying to hurt her, her mother, and her sister.  Officers observed the house and concluded the family had no escape routes.  The defendant officer knocked on the door and identified himself.  An officer shouted the suspect was coming and had a weapon.  The defendant officer ordered the suspect to "drop it."  The suspect dropped a metal tool.  In response to officer commands, the suspect put his hands up and walked toward the officers, stopping 10-11 feet from them.  An officer saw a knife sticking out from the suspect's pocket.  An officer ordered the suspect not to lower his hands.  The suspect lowered his hands, and an officer shot the suspect twice with beanbag rounds.  The suspect then raised his hands and obeyed orders to get down.  The defendant officer raised the suspect's arms and knelt on his back, near the knife, while removing the knife.  The officer knelt on the back for eight seconds.  He got up while holding the suspect's arms as another officer handcuffed the suspect.  The defendant officer lifted the suspect by the arms and moved him away from the door.  The suspect alleged the officer used excessive force.  The district court granted the officer summary judgment.  The 9th Circuit reversed summary judgment, ruling that the officer was not entitled to qualified immunity because he had violated clearly established law.

The Supreme Court ruled that existing precedent did not give the defendant officer fair notice that what he did violated the Fourth Amendment.  Assuming circuit precedent can clearly establish the law, the case the 9th Circuit relied on, LaLonde v. County of Riverside, 204 F. 3d 947 (9th Cir. 2000), involved an officer responding to a noise complaint by pressing his knee into the back of an unarmed suspect hard enough to cause injury.  Here, the defendant officer, responding to a serious case of domestic violence possibly involving a chainsaw, pressed his knee on the side of the suspect's back near the knife that officers were retrieving, and for no more than eight seconds.

Officers Violate Clearly-Established Law if Failure to Identify Selves and Failure to Obtain Warrant Brought About Use of Force

In Murchison v. County of Tehama, published October 4, 2021, the Third District Court of Appeal reversed summary judgment granted in favor of the defendant officers.    Viewing the facts in the light most favorable to the plaintiff, the plaintiff owned property at the end of a public road, which the plaintiff had blocked.  When a real estate agent and a client went past the blockade, the plaintiff told them the road was closed.  The client said he thought he saw something in the plaintiff's pocket that was possibly a handgun.  The agent called the sheriff's department to confirm he had a legal right to use the road, and may have mentioned the handgun.  The defendant officers determined that the plaintiff was a convicted felon who was prohibited from owning firearms, and believed the plaintiff had improperly blocked a public roadway.  The officers did not obtain a warrant to search the plaintiff's property.  An officer admitted they lacked probable cause to obtain a warrant at that time.  Instead, the officers formulated a plan to approach the property in plainclothes, provoke the plaintiff into brandishing a firearm, then arrest him for owning a firearm.  The plaintiff observed the officers enter his property, and called 911.  The officers decided to leave, but then saw an unloaded rifle through the open door of the plaintiff's shop adjacent to his house.  The officers again decided not to obtain a warrant, but instead walk toward the rifle.  They acknowledged there was no emergency present.  The plaintiff, believing he was being robbed, began running toward the rifle.  The officers ran toward the rifle.  An officer drew his weapon, identified himself as an officer,  and ordered the plaintiff onto the ground.  As the plaintiff began to comply, the other officer tackled him.  The officers handcuffed the plaintiff and left him lying in the dirt.  When they asked him about the rifle, the plaintiff informed the officers he had an expungement order he believed allowed him to own rifles.  The officers confirmed the conviction had been expunged, removed the handcuffs, and left.  The plaintiff sued the officers for conducting an illegal search for walking towards the shop and rifle, and using excessive force when they arrested him.  He also asserted claims under the Bane Act and assault and battery.

The appellate court ruled that triable issues of fact defeated summary judgment because, viewing the facts in the light most favorable to the plaintiff, the officers violated the plaintiff's Fourth Amendment rights and were not entitled to qualified immunity to the section 1983 claims.  A reasonable jury could find that an officer violated the Fourth Amendment by leaving the public driveway and entering the plaintiff's curtilage before the plaintiff began running toward the rifle.  Under those facts, the exigent circumstances exception to the warrant requirement would not apply.  A reasonable jury could also find that the use of force was excessive, in light of evidence that the officers' earlier actions may have created the need for their use of force, their purpose of provoking the plaintiff to brandish a firearm, the relatively minor crime at issue, and the degree of force used.  Regarding qualified immunity, the law clearly precluded entering the curtilage of the plaintiff's property without a warrant or exigent circumstances, and multiple cases have held that an officer's failure to identify himself can lead to the unnecessary and excessive application of force.  Regarding the Bane Act claim, there was evidence from which a reasonable jury could find that the officers acted in reckless disregard to the plaintiff's constitutional rights, supporting a specific intent to violate the plaintiff's rights.  Finally, a finding that the officers used excessive force under the Fourth Amendment would also support a claim for assault and battery by a police officer.

 

 

Police Chief Violates Clearly-Established Law by Allegedly Discriminating against Female Officer and Retaliating against Her for Filing Suit

In Ballou v. McElvain, published September 28, 2021, the 9th Circuit Court of Appeals affirmed a district court's denial of a police chief's summary judgment based on qualified immunity.  The plaintiff took an exam to determine elegibility for promotion to sergeant.  Soon after the exam, the plaintiff was investigated by internal affairs for failing to write a report on an incident.  The plaintiff received a letter of reprimand, and the police chief announced that based on the investigation and the plaintiff's failure to follow protocol, he did not intend to promote her.  A group of female officers (not including plaintiff) met with the police chief and pointed out a male officer accused of similar conduct had received an oral reprimand and had not been investigated by internal affairs.  The day after the meeting, the chief announced he would promote the officer ranked directly below the plaintiff on the sergeant's list.  The plaintiff emailed the chief and city manager, complaining that the chief had promoted male officers who had sustained IA investigations against them for more serious offenses.  She stated she had hired a lawyer, but wanted to work the matter out.  After the e-mail, the plaintiff was the subject of eight IA investigations.  After the plaintiff presented two state law tort claims and filed her lawsuit, the chief promoted the male officer ranked below the plaintiff on the list.  The chief asserted he did not know of the lawsuit when he promoted the officer. The plaintiff was eventually promoted to sergeant, months later. The plaintiff alleged denial of equal protection and retaliation for exercise of her First Amendment rights.  The district court denied the chief's motion for summary judgment on these claims based on qualified immunity.

The 9th Circuit ruled that the plaintiff had stated a prima facie case of disparate treatment under Equal Protection and had raised a genuine issue of fact on whether the chief's legitimate reason for his actions was prextextual.  The chief asserted that proof of discriminatory animus will not establish an Equal Protection violation absent proof that others similarly situated were treated more favorably.  The 9th Circuit ruled that this was "profoundly incorrect."  Although comparator evidence may substitute for direct evidence of discriminatory animus, it is not necessary if there is direct proof of discriminatory animus.  Regarding qualified immunity, if the factual issues were resolved in the plaintiff's favor, the chief's alleged conduct of discriminatorily conducting an investigation and using the investigation to deny promotion fell within previously decided 9th Circuit cases, such that any reasonable officer would recognize that conduct as unconstitutional.  Similarly, existing precedent established that retaliating against an employee for the lawsuit, the state tort claims, and the internal e-mail violated the First Amendment, particularly in light of the multiple officers who met with the chief, showing the public interest in the situation.

 

Plaintiff Who Pleads No Contest to PC 148(a)(1) Is Barred under Heck v. Humphrey from Suing for Excessive Force

In Sanders v. City of Pittsburg, filed September 23, 2021, the 9th Circuit Court of Appeals affirmed dismissal of a 42 U.S.C. section 1983 claim for use of excessive force.  Police spotted the plaintiff in a stolen car, and chased him.  Eventually a police dog bit him.  The plaintiff pleaded no contest to multiple charges arising out of the incident, including a violation of Penal Code section 148(a)(1) for resisting arrest.  While his criminal case was pending, he sued the officer who used the police dog for use of excessive force.  The district court granted the defense's motion to dismiss based on the argument that Heck v. Humphrey (1994) 512 U.S. 477 barred the action.

The 9th circuit agreed.  Under Heck a section 1983 claim must be dismissed if a judgment for the plaintiff would necessarily imply the invalidity of the plaintiff's conviction or sentence.  Section 148(a)(1) bars resisting, delaying, or obstructing an officer during the lawful exercise of his duties.  Use of excessive force is not within the performance of the officer's duty.  A defendant cannot be convicted under section 148(a)(1) if the officer used excessive force at the time of the acts resulting in the conviction. Therefore, Heck bars the plaintiff's lawsuit.