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SJC-12826
MARK S. TINSLEY vs. TOWN OF FRAMINGHAM & others.1
Middlesex. April 9, 2020. - September 17, 2020.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, & Kafker, JJ.2
Civil Rights, Availability of remedy. Collateral Estoppel. Massachusetts Civil Rights Act. Police Officer. Arrest. Emotional Distress. Assault and Battery. Practice, Civil, Summary judgment.
Civil action commenced in the Superior Court Department on May 12, 2014.
The case was heard by Bruce R. Henry, J., on a motion for summary judgment, and entry of final judgment was ordered by him.
The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.
The case was submitted on the briefs. Robert C. Johnson, Jr., for the plaintiff. Bradford N. Louison for the defendants.
1 Board of selectmen of Framingham; Dinis G. Avila; Joseph Godino; James Green; Jason Lurie; and Gregory Reardon.
2 Chief Justice Gants participated in the deliberation on this case prior to his death. 2
James S. Timmins & Maura E. O'Keefe for Massachusetts Municipal Lawyers Association, amicus curiae.
LOWY, J. In this disturbing case we must determine the
extent to which the criminal convictions of the plaintiff, Mark
S. Tinsley, on charges related to his arrest affect the validity
of his civil claims against the police officers who arrested
him. The incident at issue began with a routine traffic stop of
the plaintiff, a Black man, by two police officers and ended in
a physical altercation during which five police officers, none
of whom were Black, forcibly removed Tinsley from the vehicle
and wrestled him to the ground. Following this altercation, he
was charged with numerous offenses, and a jury ultimately
convicted him of assault and battery on a police officer,
disorderly conduct, resisting arrest, and carrying a dangerous
weapon. While the criminal case was pending, Tinsley filed a
civil action in the Superior Court alleging that the officers
violated his civil rights and committed a variety of torts
during the incident. Tinsley has appealed from the allowance of
the defendants' motions for summary judgment on his civil
action.
In Heck v. Humphrey, 512 U.S. 477 (1994), the United States
Supreme Court held that a plaintiff previously convicted of a
crime in State court may not use a Federal civil rights suit to
attack that conviction collaterally in Federal court. To 3
proceed in a civil action for damages based on "harm caused by
actions whose unlawfulness would render [his] conviction or
sentence invalid," the plaintiff must demonstrate that his civil
action, if successful, would not "necessarily imply the
invalidity of his conviction."3 Id. at 486-487. We decline to
adopt the holding in Heck in its entirety;4 instead, we adopt
only its guiding principle: a plaintiff may not use a State
civil action, including one brought under the Massachusetts
Civil Rights Act (MCRA), G. L. c. 12, §§ 11H & 11I, to
collaterally attack his or her State criminal conviction. See
Heck, supra. Therefore, we conclude that a plaintiff's civil
action may only proceed where it is based on facts, viewed in
the light most favorable to the plaintiff, beyond those that
were necessary to sustain the plaintiff's prior criminal
conviction, and where the plaintiff demonstrates, in response to
the defendant's motion for summary judgment, that his or her
claims, should they succeed, would not necessarily challenge the
3 The plaintiff also may proceed by demonstrating that his conviction was reversed on direct appeal or otherwise invalidated or called into question. See Heck v. Humphrey, 512 U.S. 477, 486-487 (1994). We need not address this circumstance here, as the Appeals Court affirmed the plaintiff Mark Tinsley's convictions, and Tinsley does not assert that his convictions were otherwise invalidated.
4 We do not adopt the holding in Heck in its entirety to provide plaintiffs with a greater opportunity to litigate their State claims of alleged civil rights violations, as well as any attendant claims, than they may have under the Federal doctrine. 4
validity of his or her prior criminal conviction. See Lynch v.
Crawford, 483 Mass. 631, 641 (2019).
As to Tinsley's claims, for the reasons set forth infra,
our conclusion bars his claims only to the extent that they are
based on the events that occurred while he was still inside his
vehicle. His convictions, narrowly construed, were based on his
conduct only while he was inside his vehicle, and he is
collaterally estopped from challenging the facts necessary to
sustain his convictions. Our conclusion does not, however, bar
the claims that Tinsley bases on the events that occurred after
the police officers forcibly removed him from his vehicle.
Accordingly, we affirm in part, and we vacate and remand in
part.5
Background. Because the viability of Tinsley's claims
directly relates to the facts on which the claims rely, we must
bifurcate the facts, viewing each set of facts through different
lenses. Because we conclude that the events that occurred when
Tinsley was inside his vehicle could have sustained his criminal
convictions, and because we conclude that Tinsley is
collaterally estopped from challenging any facts that the jury
necessarily found to sustain those convictions, we recite those
facts as the jury could have found them. See Aetna Cas. & Sur.
5 We acknowledge the amicus brief submitted by the Massachusetts Municipal Lawyers Association. 5
Co. v. Niziolek, 395 Mass. 737, 742 (1985) (former criminal
defendant may be collaterally estopped from "relitigating an
issue decided in the criminal prosecution"). However, because
we conclude that the events that occurred after the police
officers removed Tinsley from his vehicle –- for the purposes of
review of the Superior Court judge's allowance of the
defendants' motion for summary judgment -- did not form the
basis for Tinsley's criminal convictions, we recite those facts
in the light most favorable to Tinsley, the nonmoving party.
See Lynch, 483 Mass. at 641.
1. Facts. Around 9:15 P.M. on May 27, 2012, Detective
Joseph Godino and Officer Greg Reardon observed a black Nissan
Maxima speeding on a public street.6 After conducting a search
regarding the vehicle's license plate number, the officers
learned that the vehicle was registered to Tinsley. Godino and
Reardon activated the lights of their unmarked Ford Explorer and
stopped the vehicle. Godino approached the vehicle on the
passenger's side and observed Tinsley moving around in the
driver's seat and reaching his left hand between his seat and
the driver's side door. Godino alerted Reardon, who was
approaching the driver's side of the vehicle, that he believed
6 The police officers estimated that Tinsley was traveling forty to forty-five miles per hour in a twenty-five miles per hour zone. 6
that Tinsley was hiding something along the seat by the driver's
side door. At some point, Tinsley placed his hand in in his
lap, where both officers observed a cellular telephone and a
wallet. Godino then observed Tinsley make a furtive movement
toward the driver's side door. Godino did not see anything in
Tinsley's hands.
Because he was concerned that Tinsley might have a weapon,
Reardon asked Tinsley to "step out of the vehicle." Tinsley
refused and asked why. Reardon told him that he would explain
everything after Tinsley got out of the vehicle. Tinsley
continued to refuse. Godino reached into the vehicle from the
passenger's side, shut it off, and removed the keys. Tinsley
then provided his license and registration but continued to
refuse Reardon's repeated requests that he get out of the
vehicle.
While Reardon and Tinsley were talking, Officer Dinis Avila
and Officer Jason Lurie arrived at the scene. Upon his arrival,
Lurie heard Tinsley yelling. These two police officers then
joined Reardon by the driver's side door of the vehicle where
Lurie joined Reardon in asking Tinsley to get out of the
Godino, while still at the passenger's side door, reached
into the vehicle and unbuckled Tinsley's seat belt. Officers
Reardon and Lurie then reached into the vehicle, grabbed 7
Tinsley, and tried to pull him out. Tinsley actively resisted
and "scream[ed]" for help, trying to get "someone [to] pay
attention to what[ was] going on." Godino came around to the
driver's side of the vehicle and joined in the effort to remove
Tinsley from the vehicle. Avila went around to the passenger's
side and pushed Tinsley while the other police officers pulled
him. Tinsley had his legs wedged under the steering wheel,
which prevented the police officers from pulling him out.
During the course of the struggle to remove Tinsley from
his vehicle, Tinsley struck Avila in the chest, and Lurie struck
Tinsley in the face. Godino also retaliated by punching Tinsley
twice, hitting him in the chin and the chest. Lurie also used
knee strikes to try to get Tinsley out of the vehicle. At some
point, Lurie cut the seat belt, which had remained wrapped
around Tinsley. A fifth officer, James Green, then arrived to
help. Green was able to grab hold of Tinsley, and the officers
dragged him out of the vehicle.
As stated supra, because the jury did not need to rely on
the events that transpired thereafter to sustain Tinsley's
convictions, we view the remaining facts in the light most
favorable to Tinsley. See Lynch, 483 Mass. at 641. After
Tinsley was dragged from his vehicle, he fell to the ground, and
several police officers began beating him. Once on the ground,
Tinsley did not resist. He tried to put his hands behind his 8
back so that the police officers would handcuff him and thus, he
thought, stop hitting him. The police officers did not stop.
Reardon struck Tinsley's collarbone and upper shoulder, and
stomped on Tinsley's left hand. Lurie sprayed Tinsley with
pepper spray. Green called Tinsley a "fucking nigger"7 and
kicked Tinsley in the head. While Tinsley was on the ground, an
officer handcuffed him.8 Tinsley suffered a broken nose, a
broken finger, and a wound on the side of his head that required
stitches.
2. Procedural history. After trial, a jury convicted
Tinsley of assault and battery on Avila, disorderly conduct,
resisting arrest, and carrying a dangerous weapon (a spring
7 At trial, Officer Green denied that he or any other police officer swore at Tinsley or called him "any names."
8 As Tinsley recalled at trial: "I know I was slammed on my head. Um, I hit the ground and . . . on the way down to the ground, all I could feel was blows to my body -- my whole body. My head - everywhere - coming everywhere. . . . They [were] hitting me, . . . they [were] kicking me, they [were] punching me, they [were] hitting me with whatever they had. . . . I know it was fist blows . . . , feet blows . . . at one point, I was on the ground . . . an officer came running -- I could see his boot coming to kick me in my face. That's when I turned my head and he kicked me right in the back of my head." Tinsley testified that, once a police officer handcuffed him, the police officers continued to hit him, and that one police officer had his boot on the side of Tinsley's face and ground his head into the ground. 9
assisted knife). The jury found Tinsley not guilty of a second
count of assault and battery on Reardon.9
While the criminal charges against Tinsley were pending, he
commenced this civil action in the Superior Court against the
town of Framingham, the board of selectmen of Framingham
(collectively, the municipal defendants), and the five police
officers involved in his arrest, asserting a violation of the
MCRA, as well as a variety of tort claims.10 After the jury
convicted Tinsley, but while his direct appeal from the
convictions was pending in the Appeals Court, the defendants
filed a motion for summary judgment, which a motion judge
allowed in part and denied in part. The judge took no action on
some of the claims and stayed the proceedings pending the
9 The judge found Tinsley not responsible for the civil infraction of speeding.
10The complaint included nine claims: violation of the Massachusetts Civil Rights Act (MCRA), G. L. c. 12, §§ 11I & 11H against all of the defendants (count I); negligence against the municipal defendants (count II); negligent failure to provide medical care against all of the defendants (count III); intentional infliction of emotional distress against the police officers (count IV); assault against the police officers (count V); battery against the police officers (count VI); false arrest and false imprisonment against the police officers (count VII); negligent hiring, training, discipline, and retention against the municipal defendants (count VIII); and negligent infliction of emotional distress against all of the defendants (count IX). 10
Appeals Court's decision.11 After the Appeals Court affirmed
Tinsley's convictions, the defendants filed a renewed motion for
summary judgment on the remaining claims, which a different
judge allowed.12 Tinsley appealed, and we transferred the case
here on our own initiative.
Discussion. We review a grant of summary judgment de novo
"to determine 'whether, viewing the evidence in the light most
favorable to the nonmoving party, all material facts have been
established and the moving party is entitled to judgment as a
matter of law.'" District Attorney for the N. Dist. v. School
Comm. of Wayland, 455 Mass. 561, 566 (2009), quoting Augat, Inc.
v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). Tinsley
appeals only from the second summary judgment decision, where
11The judge ordered that judgment enter in favor of the municipal defendants on counts I, II, III, and VIII, but denied their motion for summary judgment on count IX. She also ordered that judgment enter in favor of the police officers on counts III and IX, and on counts I, IV, V, VI, and VII, to the extent that the claims were brought against the police officers in their official capacities. The judge took no action on counts I, IV, V, VI and VII to the extent the claims were brought against the police officers personally.
12To the extent Tinsley argues that the second motion judge erred in failing to adopt the Appeals Court's factual findings, the argument is flawed. The Appeals Court, like all appellate courts, does not find facts. In addition, the Appeals Court affirmed Tinsley's convictions in a memorandum and order pursuant to its former rule 1:28 (now rule 23.0). Such a decision is not binding precedent, nor does it contain all of the relevant facts. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008). 11
the judge dismissed his remaining claims against the police
officers in their personal capacities, including the violation
of the MCRA (count I), intentional infliction of emotional
distress (count IV), assault (count V), battery (count VI), and
false arrest and false imprisonment (count VII).13
1. Application of Heck to State law claims. As the
Supreme Court noted in Heck, 512 U.S. at 483, "the common law of
torts has developed a set of rules to implement the principle
that a person should be compensated fairly for injuries caused
by the violation of his legal rights" (citation omitted). In
the interest of "finality and consistency," however, the Court
adopted "the hoary principle that civil tort actions are not
appropriate vehicles for challenging the validity of outstanding
criminal judgments." Id. at 485-486. See id. at 484 (affirming
"strong judicial policy against the creation of two conflicting
resolutions arising out of the same or identical transaction"
[citation omitted]). See generally Cabot v. Lewis, 241 F. Supp.
3d 239, 257-259 (D. Mass. 2017) (applying reasoning of Heck to
plaintiff's State law claims, including claim under MCRA and
13 To the extent that Tinsley states that he is seeking relief from the dismissal of negligent infliction of emotional distress (count IX) against all of the defendants, he does so no more than in passing, and thus, he does not present any adequate appellate argument on the point. We therefore do not consider it. Mass. R. A. P. 16 (a) (9), as appearing in 481 Mass. 1628 (2019). 12
common-law claims for battery, assault, false imprisonment,
false arrest, and intentional infliction of emotional distress).
We are not bound by Heck, whose holding binds only Federal
courts; however, we adopt its guiding principle that to protect
the validity of adjudicated criminal convictions, a plaintiff
may not use a State civil action, including State tort claims
and claims advanced under the MCRA, to collaterally attack the
plaintiff's previous State criminal conviction. We conclude
that a plaintiff's civil action may proceed only where the
action is based on facts, viewed in the light most favorable to
the plaintiff, other than those necessary to sustain the
plaintiff's criminal conviction and where the plaintiff
demonstrates that the civil action, if successful, would not
necessarily undermine the validity of the plaintiff's prior
criminal conviction. See Heck, supra at 486-487; Cabot, 241 F.
Supp. 3d at 257. Our conclusion is not intended to place an
impregnable barrier between a plaintiff and the civil remedy to
which the plaintiff is rightfully entitled under the law even
where the plaintiff has his or her civil rights violated after
having engaged in criminal conduct. See Nelson v. Campbell, 541
U.S. 637, 647 (2004). Rather, our conclusion is intended to
prevent plaintiffs from challenging facts and arguments from
which they are collaterally estopped by virtue of their criminal 13
conviction, while also preserving plaintiffs' rights to hold
accountable those individuals who may have caused them harm.
2. Application of our conclusion to Tinsley's claims. To
determine the validity of Tinsley's claims on appeal, we look to
the relationship between those claims, the facts on which they
rely, and the crimes of which the jury convicted him. See
VanGilder v. Baker, 435 F.3d 689, 691 (7th Cir. 2006) (applying
Heck requires trial court to "analyze the relationship between
plaintiff's [42 U.S.C.] § 1983 claim and the charge on which he
was convicted"). If Tinsley's claims are based on facts other
than those that the jury needed to have found in order to
convict him of assault and battery on a police officer,
disorderly conduct, and resisting arrest,14 his claims do not
challenge the validity of those convictions, and his action may
proceed. If, however, Tinsley's claims are based solely on the
facts the jury needed to find in order to convict, those claims
14Tinsley's civil claims are unrelated to his conviction of carrying a dangerous weapon. 14
amount to a collateral attack on his convictions and are thus
not cognizable.15,16
As an initial matter, in a civil action like the one here,
we conclude that a plaintiff is collaterally estopped from
asserting that any force used by the police officers was
15In support of his false arrest and false imprisonment claim, Tinsley asserted that Detective Godino and Officer Reardon detained Tinsley without reasonable or probable cause and without a warrant. That claim is barred, because if successful, it would necessarily imply the impropriety of all of Tinsley's convictions and, thus, would constitute an impermissible collateral attack on those convictions.
16To the extent that Tinsley argues that his claim may proceed because he commenced this civil action before he was convicted, and thus his claims cannot be viewed as an attempt to collaterally attack a conviction, the argument is misplaced. The claims at issue in this appeal are the same claims on which the first motion judge did not act because Tinsley's convictions were not yet final. Only after the Appeals Court affirmed Tinsley's convictions did the second motion judge act on the concomitant civil claims. The point is not whether Tinsley set out to collaterally attack a conviction but whether, in light of his convictions, his civil claims, if successful, would necessarily imply the invalidity of those convictions. The timing of the commencement of the action, under these circumstances, is not relevant. See Aucoin v. Cupil, 958 F.3d 379, 383 (5th Cir. 2020), quoting Okoro v. Callaghan, 324 F.3d 488, 490 (7th Cir.), cert. denied, 539 U.S. 910 (2003) ("It is irrelevant that [a plaintiff] disclaims any intention of challenging his conviction; if he makes allegations that are inconsistent with the conviction's having been valid, Heck kicks in and bars his civil suit").
We note, however, that where a plaintiff brings a civil action before or during the pendency of a criminal case against him, the plaintiff may have to amend his complaint once his conviction becomes final to remove his allegations from which he has become collaterally estopped. 15
excessive because the plaintiff was innocent of any wrongdoing.
In proclaiming his innocence, the plaintiff challenges the facts
that the jury necessarily found to sustain his convictions, and
thereby seeks to impermissibly impugn those convictions. See
Thore v. Howe, 466 F.3d 173, 180 (1st Cir. 2006). Therefore, to
the extent that Tinsley argues his complete innocence, the
argument is impermissible.17 For example, because the jury
convicted Tinsley of assault and battery of Avila, Tinsley may
not now assert that he did not strike Avila, as the jury could
not have convicted Tinsley of that charge without that finding.
Thus, Tinsley's assertion of innocence would constitute an
improper collateral attack on his assault and battery
conviction. Our conclusion bars such a claim. See O'Brien v.
Bellingham, 943 F.3d 514, 529 (1st Cir. 2019), quoting Thore,
supra at 179-180 (excessive force claim "'so interrelated
factually' with [plaintiff's] state convictions arising from
those events that a judgment in [plaintiff's] favor would
'necessarily imply' the invalidity of those convictions"). See
also DeLeon v. Corpus Christi, 488 F.3d 649, 656 (5th Cir. 2007)
(Heck barred plaintiff's civil action because plaintiff did not
17Although this argument cannot form the basis for Tinsley's civil action, it properly formed the basis for his defense at trial, as well as his argument on appeal from his convictions. Our judicial system relies on the jury to decide the truth, and on the direct appellate process and motion for a new trial to resolve any errors at trial. 16
allege "that his claims of excessive force are separable from
his aggravated assault on the officer. Instead, the complaint
maintains that he did nothing wrong, that he simply defended
himself . . .").
a. Impermissible claims. Tinsley's MCRA claim, and his
claims for intentional infliction of emotional distress,
assault, and battery against the police officers individually
arise largely out of the police officers' use of force against
him, ostensibly when Tinsley was both inside and outside his
vehicle.18 We conclude that the jury could have found the facts
necessary to convict Tinsley of assault and battery on Avila and
disorderly conduct based on what occurred inside Tinsley's
vehicle. Given Tinsley's conviction of resisting arrest,
determining whether Tinsley's claims would be barred as a
collateral attack on that conviction requires us to determine
whether there are any facts on which Tinsley may properly base
his claims. That, in turn, requires us to determine the point
at which Tinsley was arrested.
18In his complaint, Tinsley raised other arguments in support of his MCRA claim, including deprivation of medical care and the police officers' failure to intervene to prevent other police officers' conduct. Those arguments relate to two of Tinsley's other claims, negligence and negligent failure to provide medical care, for which the first motion judge granted summary judgment in favor of the defendants. As stated supra, Tinsley does not appeal from the first order granting summary judgment. 17
"An arrest occurs where there is (1) 'an actual or
constructive seizure or detention of the person, [2] performed
with the intention to effect an arrest and [3] so understood by
the person detained.'" Commonwealth v. Grandison, 433 Mass.
135, 145 (2001), quoting Commonwealth v. Cook, 419 Mass. 192,
198 (1994). There was enough evidence to conclude, as a matter
of law, that Tinsley was under arrest before the police officers
pulled him from his vehicle. See Commonwealth v. Willis, 415
Mass. 814, 820 (1993) (considering length of encounter, nature
of inquiry, possibility of flight, and danger to safety of
police officers and public in whether investigatory stop becomes
arrest); Commonwealth v. Sanderson, 398 Mass. 761, 766-767
(1986) (arrest occurred when multiple police officers blocked in
defendant's vehicle and asked him to step out, and he was not
free to leave, regardless of formal arrest forty minutes later);
Commonwealth v. Santiago, 93 Mass. App. Ct. 792, 795 (2018)
(looking to number of police officers, whether police officers
blocked defendant's vehicle, and whether police officers'
actions were proportionate "to the degree of suspicion that
prompted the intrusion" to determine arrest had occurred
[citation omitted]).19
19Tinsley is collaterally estopped only from challenging the facts that the jury needed to find to sustain his convictions; thus, to determine whether Tinsley's claims, if 18
"A person commits the crime of resisting arrest if he
knowingly prevents or attempts to prevent a police officer . . .
from effecting an arrest . . . by . . . using . . . physical
force or violence against the police officer." G. L. c. 268,
§ 32B. At Tinsley's trial, the jury heard testimony from both
Godino and Reardon regarding the amount of force that police
officers are trained to use in certain circumstances.
Additionally, the judge instructed the jury on the issue of
unreasonable or unnecessary force in connection with the charge
of resisting arrest: "If a police officer uses unreasonable or
excessive force to make an arrest, the person who is being
arrested may defend himself, with as much force as reasonably
appears necessary. . . . If there is some evidence that the
police used unreasonable or excessive force, the Commonwealth
must prove, beyond a reasonable doubt, that the defendant did
not act in self-defense."
To convict Tinsley of resisting arrest, then, the jury had
to find that he used "physical force or violence against the
police officer[s]," and that in doing so, that he was not acting
in lawful self-defense. G. L. c. 268, § 32B. Because there was
successful, would necessarily challenge the validity of his convictions, we need only consider the narrowest version of events needed to sustain Tinsley's convictions. Because Tinsley could have been arrested while inside his vehicle, we need not determine or comment on whether Tinsley continued to resist arrest outside his vehicle. 19
enough evidence to conclude that the arrest occurred before the
police officers removed Tinsley from his vehicle, however, so
too did Tinsley's actions that sustained his conviction of
resisting arrest. In other words, it was Tinsley's actions
inside his vehicle -- his effort to prevent the police officers
from removing him from the vehicle -- that sustained that
conviction. As such, to the extent that Tinsley contends that
the police officers used excessive force while he was still
inside his vehicle, such a claim, if successful, would amount to
an impermissible collateral attack on his conviction of
resisting arrest, and it may not proceed.
b. Permissible claims. In some circumstances, however, we
conclude that an "excessive force claim brought against a police
officer that arises out of the officer's use of force during an
arrest does not necessarily call into question the validity of
an underlying state conviction" and that our conclusion would
not bar such a claim. Thore, 466 F.3d at 180 (permitting
plaintiff's "theory . . . that his excessive force claim need
not impugn his convictions for assault and battery with a
dangerous weapon in order to establish that [the officer] used
excessive force"). See Havens v. Johnson, 783 F.3d 776, 782
(10th Cir. 2015), and cases cited (excessive force claim against
police officer "not necessarily inconsistent with a conviction
for assaulting the officer [because] the claim may be that the 20
officer used too much force to respond to the assault or that
the officer used force after the need for force had
disappeared").20 See also Aucoin v. Cupil, 958 F.3d 379, 382
(5th Cir. 2020) ("Put simply, there is no Heck bar if the
alleged violation occurs 'after' the cessation of the
plaintiff's misconduct that gave rise to his prior conviction");
Bush v. Strain, 513 F.3d 492, 498 (5th Cir. 2008) (excessive
force claim not barred where it is "temporally and conceptually
distinct" from plaintiff's prior conviction).
Because we concluded that the jury could have found the
facts necessary to convict Tinsley of resisting arrest, assault
and battery on Avila, and disorderly conduct based on what
occurred inside the vehicle, Tinsley may base his civil claims
on what he alleges occurred after the police officers forcibly
removed him from his vehicle -- when the police officers
allegedly continued to hit him, kicked him, and called him a
"fucking nigger" -- as those claims, if successful, would not
amount to a collateral attack on his convictions. See Bush, 513
F.3d at 496, 500 (because plaintiff produced evidence that after
she stopped resisting arrest and after she was handcuffed,
police officer forced plaintiff's face into vehicle window,
20Tinsley did not argue the former rationale -- that while he resisted arrest, the police officers' use of force went beyond what was reasonable under the circumstances. 21
"injuring her jaw and breaking two of her teeth," "a favorable
verdict on her excessive force claims will not undermine her
criminal conviction"). See also Hardrick v. Bolingbrook, 522
F.3d 758, 764 (7th Cir. 2008) (permitting plaintiff's claim that
officers used excessive force; that plaintiff resisted arrest by
struggling while being handcuffed "at one point in time does not
preclude the possibility" that he was "peaceably waiting" at
another point in time); Schwind vs. Koste, U.S. Dist. Ct., No.
1:19-cv-05741, slip op. (N.D. Ill. June 4, 2020) (where
plaintiff pleaded guilty to resisting arrest by one officer,
plaintiff's excessive force claim not barred where plaintiff
asserted second officer struck plaintiff in face while plaintiff
was handcuffed); Bochart vs. Lowell, U.S. Dist. Ct., No. 13-
11753-FDS, slip op. (D. Mass. Feb. 19, 2016) (court permitted
plaintiff's claim that police officer's continued use of pepper
spray after plaintiff stopped resisting constituted excessive
force because "[a]ccepting that theory would not require
accepting facts that would invalidate [the plaintiff's]
conviction[s]").
Even where the use of force to effect an arrest is
reasonable in response to an individual's resistance, the
continued use of force may well be unreasonable, as an
individual's conduct prior to arrest or during an arrest does
not authorize a violation of his or her constitutional rights. 22
See Smithart v. Towery, 79 F.3d 951, 952 (9th Cir. 1996) (per
curiam) (permitting excessive force claim that police officers
beat plaintiff "beyond recognition" after he had already been
arrested and handcuffed). See also McCann v. Neilsen, 466 F.3d
619, 622-623 (7th Cir. 2006) ("deputy's use of deadly force as a
response was not reasonable" despite plaintiff's "assaultive and
obstructive conduct"). In such a case, like the one here, a
plaintiff's claims that the police officers in question violated
his rights, whether pursuant to the MCRA or otherwise, may
proceed because the claims are based on facts other than those
that the jury needed to find to sustain the plaintiff's
conviction. To hold differently would implicitly permit police
officers, in response to a resisting individual, to exert as
much force as they so choose "and be shielded from
accountability under civil law," so long as the prosecutor could
successfully convict the individual of resisting arrest.
VanGilder, 435 F.3d at 692. Thus, to the extent that Tinsley's
claims against the police officers personally relate to what
occurred after he was removed from his vehicle, our conclusion
does not bar those claims.
Conclusion. Tinsley is not collaterally estopped from
basing his claims on the events that occurred after he was
removed from his vehicle. Accordingly, taking those facts in
the light most favorable to Tinsley, the nonmoving party, there 23
is a genuine issue of material fact whether the police officers
used excessive force against him after he was removed from his
vehicle. Therefore, so much of the judgment dated August 31,
2018, pertaining to counts I (MCRA), IV (intentional infliction
of emotional distress), V (assault), and VI (battery) against
the police officers personally is vacated, and the matter is
remanded to the trial court for further proceedings consistent
with this opinion.21 In all other respects, the judgment is
affirmed.22,23
So ordered.
21Tinsley may proceed on counts I, IV, V, and VI only to the extent he relies on the facts that describe the events that occurred after the police officers forcibly removed him from his vehicle. In accordance with this opinion and the motion judge's earlier allowance of the defendants' motion for summary judgement regarding count I, Tinsley may not proceed on the theories that the police officers arrested him without probable cause, unreasonably seized him, or denied him medical care.
22This includes count VII, Tinsley's claim for false arrest and false imprisonment, which, as addressed supra, is barred.
23Because the second motion judge concluded that the holding in Heck barred all of Tinsley's then-remaining claims against the police officers, the judge did not consider the police officers' qualified immunity claims. He also, for the same reason, denied Tinsley's motion to amend his complaint on the basis that any such amendment would be futile. In light of our decision vacating a portion of the judgment, and our conclusion that not all of Tinsley's claims are barred, these issues, should they arise, should be addressed in the first instance by the trial court.