United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  June 14, 2004
                      _______________________
                                                         Charles R. Fulbruge III
                              No. 03-30941                       Clerk
                        _______________________

                        SIDNEY J. ARNOLD, JR.,

                          Plaintiff-Appellant

                                  v.

  TOWN OF SLAUGHTER, LOUISIANA; KENNETH STEWART; WILLIAM POCHE;
                         MARTIN ROBERTS,

                         Defendants-Appellees

                      --------------------
          Appeal from the United States District Court
              for the Middle District of Louisiana
                      USDC No. 01-CV-902-D
                      --------------------

Before DEMOSS, STEWART and PRADO, Circuit Judges.

PER CURIAM:*

     Sidney J. Arnold, Jr. appeals from the district court’s

determination that his excessive force and false arrest claims

were improper challenges to his state-court conviction for

resisting an officer.    Because the district court properly

granted summary judgment on this basis, we affirm.

     This case began with a traffic stop in Slaughter, Louisiana,

on October 29, 2000.    On that night, two Slaughter police

officers, Appellants Kenneth Stewart and William Poche, stopped a


     *
      Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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car for driving without headlights and running a stop sign.      The

car’s driver, David Bonner, pulled into Arnold’s driveway.

Stewart and Poche then stopped their police cruiser in the street

in front of Arnold’s house.   Two other police cars, including one

driven by Appellant Martin Roberts, eventually arrived at the

scene.

     While Bonner was parked in the driveway, Arnold emerged from

his house.   Arnold claims that he went outside to get his young

son, who was looking at the police lights.   The parties disagree

about what happened next.   The officers state that Arnold started

a confrontation by making threats, being belligerent, and taking

a swing at one of them.   Arnold contends, however, that he never

threatened any of the officers or confronted them; he merely

picked up his son.   Under both versions, Stewart scuffled with

Arnold, causing both men to fall down.   During the fall, Arnold

broke one of the bones in his neck.

     Arnold was arrested and charged with public intimidation of

police officers and possession of marijuana.1   He pleaded not

guilty to these charges, which were eventually dropped.

Subsequently, Arnold was charged with resisting an officer.


     1
      There is conflicting evidence regarding the exact charges
upon which Arnold was originally arrested. Stewart testified
that he arrested Arnold for possession of marijuana, disturbing
the peace, and interfering with an investigation. The summons
issued the date of the arrest indicates that Arnold was arrested
for possession of marijuana and public intimidation. Arnold
pleaded not guilty to the latter two charges.

                                 2
Following a bench trial in May 2001, he was convicted and

sentenced.   Arnold did not appeal, and his conviction has not

been overturned.

     On October 25, 2001, approximately five months after his

conviction, Arnold brought this lawsuit against Stewart, Poche,

Roberts, and the Town of Slaughter.     This suit contains claims

under 42 U.S.C. § 1983 and state law for false arrest,

unreasonable search and seizure, false imprisonment, malicious

prosecution, and excessive force.     Following discovery, the

officers and the town moved for summary judgment on the grounds

that Heck v. Humphrey, 

(1994), barred Arnold’s

claims.   The individual officers also argued that they were

entitled to qualified immunity.   The district court granted the

motion, determining that Heck prevented Arnold from pursuing any

of his claims.   We review this summary judgment ruling de novo.

Mace v. City of Palestine, 

, 623 (5th Cir. 2003).

     In Heck, the Supreme Court held that a plaintiff who has

been convicted of a crime cannot bring a § 1983 claim challenging

the constitutionality of his conviction unless that conviction

has been reversed, expunged, declared invalid, or called into

question by federal habeas 

.   Heck

bars claims for “unconstitutional conviction or imprisonment” as

well as claims “for other harm caused by actions whose

unlawfulness would render a conviction or sentence invalid.”        

  Thus, unless his conviction has been overturned, a

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plaintiff cannot bring a § 1983 claim if prevailing on that claim

would imply that his conviction was invalid.

     How Heck applies to excessive force claims is not always

clear.    By proving an excessive force claim, a plaintiff will not

invariably invalidate his conviction.    See Hudson v. Hughes, 

, 873 (5th Cir. 1996).   Other circuits have emphasized

the conceptual difference between an excessive force claim and a

challenge to a conviction.   Both the Ninth and Third Circuits

have indicated that an excessive force claim would not

necessarily challenge a plaintiff’s conviction for assault during

a stop.    Nelson v. Jashurek, 

, 145-46 (3d Cir. 1997);

Smithart v. Towery, 

, 952 (9th Cir. 1996).

     While recognizing this distinction, this circuit has

recognized that certain convictions will prevent a plaintiff from

bringing an excessive force claim.    For example, we have held

that a Texas conviction for aggravated assault on a police

officer bars claims for excessive force related to the same

conduct.   Hainze v. Richards, 

, 799 (5th Cir. 2000);

Sappington v. Bartee, 

, 237 (5th Cir. 1999).     We

reached this holding after determining that Texas law permits an

officer to use any force – even deadly force – to protect against

an aggravated assault.    

.   Because any

force was justified in response to an assault, a finding that the

officers used excessive force would necessarily mean that the

plaintiff had not committed aggravated assault.    

a

                                  4
judgment would call into question the plaintiff’s conviction.

have also held that a Louisiana conviction for

battery of an officer – a crime for which justification is an

affirmative defense – prevents the plaintiff from suing for

excessive force in connection with the incident.      

.   If the plaintiff proved his excessive force claim, he

would essentially be proving that his battery was justified,

which would undermine his conviction. 

cases show,

the Heck determination depends on the nature of the offense and

of the claim.   Cf. 

(noting that, because

of the nature of the plaintiff’s offense, the conceptual

difference between an excessive force claim and a challenge to a

conviction “may be applicable in many section 1983 claims of

excessive force, [but] it does not help [plaintiff] today”).

      In this case, Arnold was convicted of resisting an officer,

in violation of LA. REV. STAT. ANN. § 14.08.   This statute provides

that:

      A. Resisting an officer is the intentional interference
      with, opposition or resistance to, or obstruction of an
      individual acting in his official capacity and authorized
      by law to make a lawful arrest or seizure of property or
      to serve any lawful process or court order when the
      offender knows or has reason to know that the person
      arresting, seizing property, or serving process is acting
      in his official capacity.
      B. (1) The phrase "obstruction of" as used herein shall,
      in addition to its common meaning, signification, and
      connotation mean the following:
      (a) Flight by one sought to be arrested before the
      arresting officer can restrain him and after notice is
      given that he is under arrest.
      (b) Any violence toward or any resistance or opposition

                                 5
     to the arresting officer after the arrested party is
     actually placed under arrest and before he is
     incarcerated in jail.
     (c) Refusal by the arrested party to give his name and
     make his identity known to the arresting officer or
     providing false information regarding the identity of the
     arrested party to the arresting officer.
     (d) Congregation with others on a public street and
     refusal to move on when ordered by the officer.

LA. REV. STAT. ANN. § 14.08.

     While the statute provides many ways of committing the

offense, the judge in the criminal trial found that Arnold

resisted an officer by being hostile and threatening and by

initiating confrontation:

     Mr. Arnold was hostile, he was belligerent, he made
     threats, and by doing that he interfered with the
     officers performing a duty with respect to the arrest of
     the motorist . . . And he refused their requests to go
     back inside and it was only after that . . . that they
     placed him under arrest. He compounded the . . . problem
     by . . . initiating a physical confrontation with
     Lieutenant Stewart after Lieutenant Stewart attempted to
     prevent him from escaping, from fleeing from the arrest
     site.   I will find Mr. Arnold guilty of resisting an
     officer.

     Despite the state court’s findings, Arnold’s current lawsuit

contends that he did nothing to provoke Stewart’s actions.

Arnold’s complaint does not state that Arnold made any threats or

initiated any physical confrontation.   Moreover, during his

deposition in this case, Arnold testified that he never attempted

to strike any of the officers, never threatened any of them and,

in fact, never resisted their attempts to arrest him.2

     2
       Arnold’s summary judgment evidence is consistent with his
deposition testimony. For example, the affidavit of witness Dee

                                6
       Thus, Arnold’s claims are not that the police used excessive

force after he stopped resisting arrest or even that the officers

used excessive and unreasonable force to stop his resistance.

Instead, Arnold claims that he did nothing wrong, but was

viciously attacked for no reason.     He provides no alternative

pleading or theory of recovery.

       In this way, Arnold’s claims are distinguishable from

excessive force claims that survive Heck’s bar.     For example,

Arnold’s case differs from Nelson, where the Third Circuit

permitted the plaintiff to show that the defendant used excessive

force, but prohibited him from contradicting the criminal jury’s

finding that some substantial force was justified.     

.    Similarly, in Smithart, the plaintiff – who was

convicted of driving his truck at officers –     contended that the

defendant officers arrested him, handcuffed him, and then beat

him, and thus “used force . . . out of proportion to the threat

which [plaintiff] posed to the defendants.”     

.    Smithart’s claim did not challenge the finding that the

plaintiff drove his truck at the defendants.     In both Smithart

and Nelson, a plaintiff could proceed with a claim that did not

contradict the criminal jury’s fact finding.     In contrast,

Arnold’s suit squarely challenges the factual determination that

underlies his conviction for resisting an officer.     If Arnold


Arnold contends that Stewart attacked Arnold “for no reason
whatsoever.”

                                  7
prevails, he will have established that his criminal conviction

lacks any basis.      Therefore, this lawsuit challenges the validity

of Arnold’s conviction and is barred by Heck.

     Arnold additionally argues, without citation, that Heck does

not apply to his claims because he was arrested for possession of

marijuana and public intimidation, but was convicted of resisting

an officer.   As far as his excessive force claim is concerned,

Heck does not require exact identity of the arresting offense and

the offense of conviction.      Cf. 

(Heck

barred false arrest and excessive claims of plaintiff, who was

arrested for burglary, but prosecuted for battery of an officer

and felon in possession of a firearm).     Further, to obtain

Arnold’s conviction for resisting an officer, the prosecution had

to prove that the officers were making a lawful arrest.     LA. REV.

STAT. ANN. § 14.08.    The state trial judge appeared to find that

Arnold resisted and interfered with two different lawful arrests

– his own and Bonner’s.     Thus, by claiming false arrest, Arnold

argues that, contrary to one finding underlying his conviction,

his arrest was unlawful.     This claim, then, also violates Heck.

     Arnold has not briefed his other claims.     He has therefore

abandoned them.    Cinel v. Connick, 

, 1345 (5th Cir.

1994).

     For these reasons, we affirm the district court’s judgment.

AFFIRMED.



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