LEON F. HARRIGAN, Plaintiff - Appellant, versus METRO DADE POLICE DEPARTMENT STATION #4, (Officer Shooter) Unknown, et al., Defendants, ERNESTO RODRIGUEZ, Defendant - Appellee.
No. 17-11264
United States Court of Appeals for the Eleventh Circuit
October 13, 2020
D.C. Docket No. 1:12-cv-22993-JEM [PUBLISH]
Appeal from the United States District Court for the Southern District of Florida
(October 13, 2020)
Before WILSON, MARCUS and THAPAR,* Circuit Judges.
This appeal presents the question whether Heck v. Humphrey, 512 U.S. 477 (1994), bars Leon Harrigan’s excessive-force claim. Harrigan sued Ernesto Rodriguez, a Miami-Dade police officer, under
I.
A.
On July 13, 2012, Rodriguez was working the midnight patrol shift along with fellow officers Clifton Baldwin and Brad Carter. At around 4:45 a.m., as he was driving his patrol car, Officer Carter recognized a black Ford F-250 pickup truck that Rodriguez had identified as stolen several hours earlier. Harrigan was behind the wheel of the truck. Carter began to follow Harrigan and radioed for backup. Officers Rodriguez and Baldwin responded to Carter’s call for assistance.
The three officers converged on Harrigan as he was stopped
All three officers then activated their emergency overhead lights. Carter remained in his patrol car, but Baldwin and Rodriguez got out to investigate and approached Harrigan’s truck on foot. Exactly what happened next, and in what order, is in sharp dispute. But what is clear is that Officer Rodriguez ultimately fired five shots at Harrigan’s truck, and one of them struck Harrigan in the leg. Harrigan says that Rodriguez started shooting without provocation.1 He says that, when Rodriguez opened fire, the truck was stationary. Only after Rodriguez shot him did Harrigan, fearing for his life, drive off. And when he did, Harrigan says, he deliberately swerved to avoid Baldwin in front of him.
Harrigan also relies on testimony from Officer Carter. Carter first “heard gunshots” while he was parking his car. He looked up and “saw the defendant reverse” before “swerv[ing] around” Officer Baldwin’s patrol car. He testified this way in a deposition:
Q: Okay. So let me make sure I have the sequence accurate. You were still putting your car in park when you heard gunshots? A: Yes. I never got out of my car.
Q: And you were not watching when those shots were fired?
A: No.
Q: It was after you heard the gunshots that you saw the truck in front of you go into reverse?
A: Yes.
Q: And it was after you heard the gunshots that you saw the truck in front of you swerve around what you believe to be Officer Baldwin’s car?
A: Yes.
Q: Prior to that, did you ever see the truck in front of you move prior to the gunshots?
A: No, because my lights were on. I thought that he stopped and put the car in park, so I was like okay, we are going. I never got out of the car, so I didn’t expect any of that to happen.
. . .
Q: Did you -- and if you didn’t, you answer if you didn’t -- but did you hear the truck’s engine rev prior to hearing the gunshots?
A: No. That, I did not.
Q: You didn’t hear the truck’s tires?
A: No.
Q: First time that you saw or heard the truck moving was after the gunshots?
A: When his car was in reverse[], because I heard first the gunshots that caught my attention. I looked up, I see the truck back up. So it backed up.
Q: And that was the first time that you saw the truck moving?
A: Yes.
. . .
Q: Did you ever see that truck strike Officer Baldwin’s vehicle?
A: I did not see it. No.
Q: In fact, what you saw was the truck swerve around Officer Baldwin’s car so as not to hit it?
A: Yes.
Officer Rodriguez paints a different picture. He says that, when he and Officer Baldwin got out of their cars, he heard Harrigan rev the truck’s engine before accelerating toward Baldwin, striking the front of his patrol car. Harrigan then continued to accelerate toward Rodriguez, driving right at him. Only then did Rodriguez, fearing for his life, shoot at Harrigan’s truck to disable it. Officer Rodriguez also points us to testimony from Officer Baldwin. Baldwin “was rushing” to the intersection; when he arrived, he “slammed” on his brakes and stopped. He turned his spotlight on and saw Harrigan’s eyes “get real big.” Baldwin described the moments that followed like this in a deposition:
Q: How far away from your car do you get?
A: I started walking, I mean, I started to go around the front of my vehicle and then that’s when he accelerated. His engine revved, his tires start spinning and he came at my vehicle and I just ran back.
Q: Did you ever see him put his car in reverse?
A: No, I did not.
Q: Did you ever see his car move backwards at all?
A: No, I did not.
. . .
Q: Okay. Did you see him strike your car, did you see the truck strike your car?
A: I didn’t actually physically see the impact, but I saw the vehicle move and I could hear it. Q: You heard a collision?
A: Yes.
Q: Did you observe damage to your car?
A: Yes, I did.
. . .
Q: At what point, when all of these things happened did you hear gunshots?
A: Right as he was passing me I heard gunshots.
Q: After he had passed you?
A: Yeah, he was just clearing me.
Q: Okay. So it was after you already heard the collision that you heard gunshots?
A: It was after, yes.
All agree that Harrigan then fled the intersection, leading the officers on a high-speed chase for several minutes. Eventually, Harrigan veered off the road and crashed into a fence. Harrigan was apprehended and brought to a hospital for treatment of his gunshot wound.
Harrigan was charged and tried in a Florida state court for (1) fleeing to elude a law enforcement officer, in violation of
B.
Harrigan filed this pro se
Harrigan responded with a second amended complaint in which he claimed that his injuries were caused by Rodriguez’s “incompetence” and his “unlawful use of excessive force.” The magistrate judge entered a Report and Recommendation advising that the two amended complaints be considered, together, “the operative complaint.” The district court adopted that Report and Recommendation.
Officer Rodriguez then moved to dismiss the operative complaint under Rules 12(b)(1) and (6) of the Federal Rules of Civil Procedure.3 He claimed that Heck v. Humphrey barred Harrigan’s claim; that he was entitled to qualified immunity; and that Harrigan had failed to state a claim for which relief could be granted. The magistrate judge issued a Report and Recommendation, concluding that Rodriguez’s motion should be denied. He thought Harrigan had stated a viable excessive-force claim and found that the record did not support Rodriguez’s claim to qualified immunity. The judge did not, however, address whether Heck barred Harrigan’s claim.
The district court adopted the Report and Recommendation and denied Rodriguez’s motion to dismiss. It agreed that Harrigan had stated a claim for which relief could be granted, and that the record did not establish Rodriguez’s entitlement to qualified immunity. The court also held that Heck did not bar Harrigan’s claim because it was “possible for [Harrigan to] prove the factual allegations in the [operative complaint] without undermining his state court convictions.”
Officer Rodriguez filed an interlocutory appeal of the district court’s order, and, in an unpublished decision, we affirmed in part and dismissed in part. See Harrigan v. Metro Dade Police Dep’t Station No. 4, 636 F. App’x 470 (11th Cir. 2015) (per curiam). We agreed that the record did not support Rodriguez’s claim to qualified immunity. Id. at 474–75. And we determined that the Court lacked jurisdiction to review the district court’s Heck ruling on an interlocutory basis. Id. at 476.
Back in district court, both Harrigan and Rodriguez filed motions for summary judgment. Rodriguez claimed again that Heck barred Harrigan from pursuing his
Because the magistrate judge found that Heck barred Harrigan’s claim, he concluded he lacked jurisdiction over Rodriguez’s claim of qualified immunity.4
The district court entered an order adopting the R & R. This timely appeal followed.
II.
We first confront a threshold question: whether Harrigan has waived this appeal by failing to object to the R & R. We conclude that he has not. Under our Circuit’s Rule 3-1, a party who fails to object to a magistrate judge’s report and recommendation “waives the right to challenge on appeal the district court’s order based on unobjected-to factual and legal conclusions.” 11th Cir. R. 3-1. The parties agree that Harrigan did not object to the R & R, even after the district court extended his time to do so.
But that is not the end of the matter. As we have recognized, Rule 3-1 bars an appeal only when the party who failed to object “was informed of the time period for objecting and the consequences on appeal for failing to” do so.
In this case, the R & R did not advise Harrigan of all of the consequences that would attach to his failure to object. The R & R informed Harrigan that, should he object “to this recommendation or anything in it,” he had fourteen days to “file specific written objections” with the clerk of the district court. The R & R said that Harrigan’s failure to do so would “bar an attack, on appeal, of the factual findings of the Magistrate Judge.” But the R & R said nothing about whether Harrigan’s failure to object would also waive his right to challenge on appeal the legal conclusion that Heck barred his claim.
Notably, the R & R’s warning in this case tracked our Court’s previous treatment of a party’s failure to object to a report and recommendation. Before we adopted Rule 3-1, a party’s “failure to object limit[ed] the scope of our appellate review to plain error review of the magistrate judge’s factual findings.” Dupree v. Warden, 715 F.3d 1295, 1300 (11th Cir. 2013) (emphasis in original). “The failure to object to the magistrate judge’s legal conclusions,” however, did “not preclude the party from challenging those conclusions on appeal.” Id. (emphasis in original).
The R & R cited two cases from this Court in support of its notice: Lewis v. Smith, 855 F.2d 736 (11th Cir. 1988) (per curiam), and Nettles v. Wainwright, 677 F.2d 404 (5th Cir. Unit B 1982) (en banc). Those cases, which predate by more than two decades (Nettles, by more than three) our adoption of Rule 3-1, typify our old approach. They hold that a party who fails to object to a magistrate judge’s findings of fact cannot challenge that fact-finding on appeal. See Lewis, 855 F.2d at 738 (“Failure to object to the magistrate judge’s factual findings after notice precludes a later attack on these findings.”); Nettles, 677 F.2d at 410 (holding that a party’s failure to object “shall bar the party from attacking on appeal factual findings accepted or adopted by the district court except upon grounds of plain error or manifest injustice”). But those cases did not inform Harrigan that his failure to object to the magistrate judge’s legal conclusion would waive his right to appeal.
Because the R & R did not inform Harrigan of all of “the consequences on appeal for failing to object,” see 11th Cir. R. 3-1, Harrigan has not waived this appeal.5
III.
We turn then to the merits. We review the district court’s grant of summary judgment de novo, drawing all facts and inferences in the light most favorable to Harrigan. Dyer v. Lee, 488 F.3d 876, 878 (11th Cir. 2007). Summary judgment is appropriate only where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
In Heck v. Humphrey, the Supreme Court sought to “avoid the problem inherent in two potentially conflicting resolutions arising out of the same set of events by foreclosing collateral attacks on convictions through the vehicle of a
Thus, we held in Dyer that “for Heck to apply, it must be the case that a successful
The Supreme Court has explained that it was “careful in Heck to stress the importance of the term ‘necessarily.’” Skinner v. Switzer, 562 U.S. 521, 534 (2011) (quoting Nelson v. Campbell, 541 U.S. 637, 647 (2004)). The United States Court of Appeals for the Sixth Circuit, too, has explained that the “word ‘necessarily’ must not be ignored.” Hill v. Snyder, 878 F.3d 193, 207 (6th Cir. 2017). If “invalidation of a conviction or speedier release would not automatically flow from success on the
Applying these principles to the facts at hand, we conclude that Heck does not bar Harrigan’s suit. Officer Rodriguez
The jury could have found the following: Officers Carter, Baldwin, and Rodriguez stopped Harrigan at the intersection of SW 216th Street and Allapattah Road. The vehicle was stationary at a red light. Officers Baldwin and Rodriguez got out of their police cars and approached Harrigan as he sat in the stolen Ford pickup truck. Without provocation, Officer Rodriguez opened fire. Then, and only then, did Harrigan drive his truck at Officer Baldwin before fleeing the intersection and leading the officers on a high-speed chase. That finding would be consistent with the jury’s general guilty verdicts for aggravated assault and fleeing to elude. And, under this set of facts, a federal jury still could find for Harrigan on his
A review of the elements necessary to sustain aggravated-assault and fleeing-to-elude convictions yields the same answer. See Henley, 945 F.3d at 1329 (observing that a plaintiff’s success in his
The court also instructed the jury that, in order to convict Harrigan of fleeing to
That Harrigan presented -- and the jury rejected -- a necessity defense is not to the contrary. During closing argument, Harrigan’s counsel told the jury that Harrigan fled the intersection of SW 216th Street and Allapattah Road “for one reason, and one reason only” -- Officer Rodriguez shot him, and Harrigan “was reasonably scared that he was going to get shot again. That his life was in danger. That it was a necessity for him to drive[] away, so he wouldn’t get killed.”7 The state court submitted this necessity defense to the jury, explaining that it could acquit Harrigan of the crimes of aggravated assault and fleeing to elude if it found that Harrigan “acted out of necessity.” Since the jury didn’t buy the necessity defense, the argument goes, it must have disbelieved Harrigan’s claim that Officer Rodriguez shot him without provocation.
We remain unconvinced because the jury’s general guilty verdicts for aggravated assault and flight tell us only that it rejected Harrigan’s necessity defense. They tell us nothing more. The state court instructed the jury that, in order to find Harrigan not guilty by reason of necessity, it would have to find each of the following six elements: that (1) Harrigan “reasonably believed a danger existed which” he did “not intentionally” cause; (2) the “danger threatened significant harm to” Harrigan; (3) the “threatened harm must have been real, imminent, and impending”; (4) Harrigan “had no reasonable means to avoid the danger except by committing the crimes”; (5) Harrigan committed these crimes “out of necessity to avoid the danger”; and (6) the harm Harrigan “avoided must outweigh the harm” he “caused by committing these crimes.”
Officer Rodriguez may be right. Perhaps the jury rejected Harrigan’s necessity defense because it concluded that Rodriguez shot Harrigan only after Harrigan gunned his truck at Officer Baldwin. But because the jury returned general verdicts, we don’t know that for certain. Cf. Willingham v. Loughnan, 261 F.3d 1178, 1183 (11th Cir. 2001) (“Because the verdicts in both the criminal-trial and this case are general verdicts, the specific facts found by the juries are not available to us.”), cert. granted, judgment vacated, and remanded, 537 U.S. 801 (2002). Perhaps the jury rejected Harrigan’s necessity defense for a different reason. Maybe it thought Harrigan had intentionally caused the danger that existed -- after all, Harrigan’s encounter with police officers began because he had stolen a
Finally, Officer Rodriguez invokes what we’ve called the “inconsistent-factual-allegations rule.” Dixon, 887 F.3d at 1238. He says that Heck bars Harrigan’s
We reached a similar result in Dixon. There, a panel of this Court considered whether Heck barred a state prisoner’s claim that he suffered excessive force at the hands of a correctional officer. Id. at 1237. The plaintiff, Dixon, claimed that he went to the prison’s officers’ station to report that his handicapped cellmate could not reach the top bunk he’d been assigned. Id. One of the officers at the station, Officer Pollock, began to shout at Dixon. Dixon alleged that, after he “turned to leave,” Pollock tripped him, picked him up off the cement floor and slammed him down, and then proceeded to kick him for two minutes in the face and body. Id. For his part, Pollock said that he used only “appropriate force in a manner necessary to subdue Dixon.” Id. He said that Dixon had ignored repeated requests to leave the officers’ station and that, after Dixon turned to leave, “he made a fist with his hand and turned back to lunge at Pollock.” Id. For his role in the incident, Dixon “was found guilty” of “one charge of Battery or Attempted Battery on a Correctional Officer.” Id. at 1238.
The law enforcement officer argued that Heck compelled dismissal of the lawsuit. In Dixon, as here, the officer relied on the inconsistent-factual-allegations rule. In his complaint, Dixon alleged “that he did not lunge at Pollock before Pollock used force against him.” Id. “Because Dixon’s disciplinary punishment [was] grounded in those facts,” the argument went, “Heck should bar the suit.” Id. We were not convinced. We explained that the “gravamen” of the plaintiff’s
So too here. Harrigan says that, after Officer Rodriguez began shooting at him, Harrigan “backed up” before deliberately swerving around Officer Baldwin in front of him. Though this claim is inconsistent with Harrigan’s conviction for aggravated assault on Officer Baldwin, the claim is not necessary to the success of Harrigan’s
The entry of a judgment in Harrigan’s favor on his
REVERSED AND REMANDED.