7th Circuit affirms SJ for Ds in 1983 claim for excessive force from 2009
Plaintiff, Helman, was served with an arrest warrant and discussed matter with ISP. When asked if he was armed, he showed that he was and went inside his home. ERT then waited six hours and Helman exited home to his backyard carrying coffee and water. When he was talking to the police, an unbeknownst ERT ignited a flash bang grenade that behind him. Helman turned and drew his pistol at which point he was shot. Helman was eventually convicted of resisting arrest.
Since Plaintiff was convicted of resisting arrest, he could not assert a 1983 claim for excessive force that would in essence demonstrate that the conviction was invalid under Heck v. Humphrey, 512 U.S. 477, 486 (1994). Therefore, his only viable claim would be if he was fired upon before drawing his pistol, which the record revealed to be not the case.
Thus, Helman was left with a 4th Amendment claim under 1983 for being fired upon when he drew his pistol. This too was not viable since the police response was commensurate to the perceived threat.
SJ was granted by Judge William Lee in Northern District – South Bend.