The Third Circuit recently distinguished
Heck in a case nearly identical to the one before us. In
Nelson v. Jashurek, 109 F.3d 142 (3d Cir.1997), the plaintiff filed a
§ 1983 excessive force claim against his arresting officer after having been convicted of resisting arrest in state court. The Third Circuit explained in
Nelson that in footnote six of
Heck, the Supreme Court intended to demonstrate that a civil suit for an unreasonable seizure
predicated on a false arrest would be barred so long as a conviction for resisting the same arrest remained unimpaired.
Nelson, 109 F.3d at 145. This is so because under the Supreme Court's hypothetical, the lawfulness of the arrest is a necessary element of the criminal offense of resisting arrest. Thus, to prevail in a
§ 1983 action for false arrest, plaintiff would have to negate the lawfulness element of the resisting arrest offense.
See Wells v. Bonner, 45 F.3d 90, 95 (5th Cir.1995) (
Heck barred plaintiff's claim for false arrest after state court conviction for resisting a search because resistance gave officers probable cause to arrest plaintiff). The same may not be said, however, in a civil suit for an unreasonable seizure
predicated on the use of excessive force. In that case, a plaintiff would not necessarily have to negate the element of the arrest's lawfulness to prevail.