Edward Harvey v. County of Navajo;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDWARD HARVEY,
Plaintiff - Appellant,
v.
COUNTY OF NAVAJO; et al.,
Defendants - Appellees.
No. 12-16883
D.C. No. 3:10-cv-08025-JWS
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
John W. Sedwick, District Judge, Presiding
Argued and Submitted November 20, 2014
San Francisco, California
Before: GOULD and WATFORD, Circuit Judges, and OLIVER, Chief District
Judge.**
1. The district court properly denied Edward Harvey’s motion for judgment
as a matter of law as to his claim for unlawful detention. Harvey argues that
Deputy Adams had no reason to detain him after making what Harvey now
FILED
DEC 04 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Solomon Oliver, Jr., Chief District Judge for the U.S.
District Court for the Northern District of Ohio, sitting by designation.

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concedes to be a lawful stop for possession of a concealed weapon without a
permit. But Arizona Revised Statutes § 13-3903A granted Deputy Adams broad
discretion to book or release Harvey. The jury was asked to decide whether
Deputy Adams’ exercise of that discretion was reasonable, and found that it was.
Our review is limited to determining whether substantial evidence supports the
jury’s finding. Gilbrook v. City of Westminster, 177 F.3d 839, 856 (9th Cir. 1999).
A reasonable jury could have concluded that awareness of past threats, regardless
of their vintage, was enough for Deputy Adams to book Harvey. And because
Harvey makes no allegation that he was not promptly presented to a neutral
magistrate or that he was unlawfully denied his right to bail, any delay in releasing
him after he was booked is attributable to the decisions of state judicial officers
rather than to any decision of Deputy Adams.
For the reasons stated above, the district court likewise did not abuse its
discretion in denying Harvey’s motion for a new trial with respect to the unlawful
detention claim. See Molski v. M.J. Cable, Inc., 481 F.3d 724, 728–29 (9th Cir.
2007).
2. The district court also properly denied Harvey’s motion for judgment as a
matter of law or a new trial as to his unlawful seizure claim. Harvey contends that
the killing of his dogs violated his Fourth Amendment right against unreasonable

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seizure. Once again, however, the reasonableness of the officers’ conduct was
squarely put to the jury. On the disturbing facts of this record, a reasonable jury
could well have found for Harvey, but the jury in this case did not see things that
way. As with Harvey’s unlawful detention claim, the jury’s verdict with respect to
the unlawful seizure claim rests on substantial evidence. A reasonable jury could
have believed, among other things, that attempting to capture the dogs for transport
would have been dangerous, as Animal Control officers explained; that the shelters
could not have accommodated so many dogs, as shelter employees testified; and
that killing the dogs with rifles was the only humane solution, as a respected
veterinarian concluded.
3. Finally, Harvey contests the constitutionality of the warrantless search of
his home on May 8, 2009. We do not reach the merits of this claim, as it is barred
by Heck v. Humphrey, 512 U.S. 477 (1994). Under Heck, a plaintiff may not
recover damages for any “harm caused by actions whose unlawfulness would
render a conviction or sentence invalid.” Id. at 486–87. This court has held that “a
§ 1983 action alleging illegal search and seizure of evidence upon which criminal
charges are based does not accrue until the criminal charges have been dismissed
or the conviction has been overturned.” Harvey v. Waldron, 210 F.3d 1008, 1015
(9th Cir. 2000), overruled in part on other grounds by Wallace v. Kato, 549 U.S.

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384, 393–94 (2007). Because Harvey’s conviction for child abuse, which Harvey
does not allege has been overturned, was based in part on evidence gathered during
the May 8, 2009, warrantless search, Harvey cannot now maintain a § 1983 action
challenging the lawfulness of that search. Doing so would raise “the potential for
inconsistent determinations” that Heck sought to avoid. Harvey, 210 F.3d at 1015.
AFFIRMED.

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