But Defending Yourself Against Aggravated Assault Is Legal And NOT Suable

DELEON v. CITY OF CORPUS CHRISTI, USCA-5 No. 05-41301, 2007 U.S.App. LEXIS 12640, on appeal from USDC-TXSD, before Chief USCJ Jones, USCJs Higginbotham, Clement, opinion by Higginbotham, filed 31 May 2007.

LONG STORY SHORT: Plaintiff's deferred adjudication for aggravated assault amounted to a conviction that prevented him from suing the officer who shot him during the incident. Binding in LA, MS, TX.

FACTS: [Note: This is only the plaintiff's side of things.] Plaintiff's wife called the police during an argument with Plaintiff. Defendant, an officer of the Corpus Christi, TX PD, responded to their house, by which time they had calmed down. Defendant insisted that Plaintiff leave the house, and when Plaintiff protested, Defendant sprayed mace [Note: "Mace" is a registered trademark of Mace Security International, Inc., one of many manufacturers of OC aerosol sprays for defense and LE; wish people would quit calling all sprays "mace"] in Plaintiff's face and swung a baton at him. Plaintiff defended himself by grabbing Defendant's baton, and they struggled with the baton until Plaintiff's wife took it away. The fight carried all three to the kitchen, where Plaintiff got Defendant in a bear hug but then let him go and backed up against the pantry door, clearly unarmed and hands raised. Plaintiff's two-year-old was by his knee, and Plaintiff's wife was between him and Defendant, who drew his pistol. As Plaintiff asked "are you going to shoot me?" Defendant did so, four times.

PROCEDURE: Plaintiff was charged with the Texas offense of aggravated assault of a police officer. He pleaded guilty, and after the judge heard evidence including Plaintiff's sworn confession, decided to defer adjudication, meaning that if Plaintiff followed the terms of his community supervision, eventually the charge would be dismissed.

Plaintiff sued Defendant in U.S. District Court for the Southern District of Texas per 42 U.S.C. § 1983 for illegal search and seizure and use of excessive force. [Note: The opinion did not specify Fourth Amendment, but that's what it has to be.] Defendant moved to dismiss per Rule 12(b)(6) for failure to state a claim, arguing that Plaintiff's deferred adjudication for aggravated assault was the same as a conviction for purposes of suing for excessive force. The trial court ruled that the deferred adjudication meant that Plaintiff in fact did commit aggravated assault against Defendant, and allowing Plaintiff to sue for Defendant's use of force would impugn the validity of Plaintiff's conviction. MOTION TO DISMISS GRANTED, WITH PREJUDICE. Plaintiff appealed to the U.S. Court of Appeals for the Fifth Circuit.

DECISION: Texas statute requires criminal trial judges to hear evidence and find that it substantiates the defendant's guilt before deciding to defer adjudication and place the defendant on community supervision. This means that a Texas deferred adjudication is not just a conviction in name only; it is a judicial finding of fact that the defendant really did the offense. SCOTUS precedent requires that any subsequent civil suit must respect the result of a prior conviction unless and until the conviction gets reversed on appeal, vacated by habeas corpus or executive pardon, or expunged. This is the "favorable termination doctrine" of Heck v. Humphrey, 512 U.S. 477 (1994).

There are two ways of looking at this requirement, and the Circuits are split over them. One is that Heck should apply only when habeas corpus is not available to the would-be plaintiff. The other, which prevails in the Fifth Circuit, is that Heck reflects the tort law as of 1871 when Section 1983 was enacted, which was that tort actions are not the proper and logical way of attacking criminal convictions. Under this rule, a Texas deferred adjudication is a conviction for Heck purposes because it requires a judicial finding that the defendant committed the crime, even if there is no adjudication of guilt yet. Whether Plaintiff could sue AFTER dismissal of his charge was not a question yet, and remained undecided.

Neither could Plaintiff claim that Defendant used excessive force after the need for doing so had passed, because the whole incident here was one continuous transaction. Defendant's use of force was inseparable from Plaintiff's alleged defense against it. Plaintiff's civil complaint contradicted his sworn confession in Texas criminal court and could not stand against it. However, Plaintiff correctly argued that the trial court erred in dismissing his case simply "with prejudice" when it should have dismissed with leave to refile if and when Plaintiff met Heck conditions, and the trial court would be ordered to modify the judgment accordingly. AFFIRMED AS MODIFIED.

EDITORIAL: "I didn't do NOTHIN and this mean cop just busted up in my house and pepper-sprayed me and whooped on me with a baton, and then SHOT me for NO REASON AT ALL right in front of my wife and kid." eeeyup. You're sure you didn't do NOTHIN even though you swore out a confession to doing NOTHIN? "Well maybe I DID do NOTHIN but it was in self-defense." okeydoke.

Guys, this is why the Constitution gives you the right to trial by jury. If indeed you didn't do NOTHIN--or if, in the alternative, you didn't DO nothin--or if, in an abundance of caution, you didn't do nothin WRONG--then go to trial and the jury will agree with you. At absolute worst, cop an Alford plea and make some kind of record that you STILL don't think you did nothin even though you are sort of admitting to it.

Once again, this is an appeal from an early stage of the case where the officer didn't yet have his chance to tell his side of the facts. The courts, in a motion to dismiss, have to take all but the totally impossibly stupidest things in a complaint as true. It's not the plaintiff's lawyer's job to be FAIR or to tell the whole story. Here, I suspect that a whole lotta story got left out, such as what exactly inspired the officer to shoot the guy in front of his wife and kid. Dollars to donuts, there was some pretty fine reason to do so--if in fact it really was in front of his wife and kid--which begs the question, why were YOU pounding on a cop in front of your wife and kid anyway?

Again, will everybody quit calling all defensive sprays "Mace"! To me, the term implies the old-timey CS/CN tear gas joke of a spray, which is Glade Air Freshener compared to OC pepper spray. Mace Security International has indeed gotten the memo about that, and mostly sells pepper spray. I like the ASP (why didn't they call the baton an "asp" so long as we're overapplying registered trademarks?) low-profile keychain/kubotan-looking dealie myself.

Good show to appellate lawyer Nancy M. Simonson of Canales & Simonson, Corpus Christi. She killed the dragon before it got out of its cave, and that's what civil defense law is all about.