Excessive force & failure to intervene claims under 42 USC § 1983; Qualified immunity; Jurisdiction over a defendant’s claim under Heck v Humphrey; Judicial estoppel; Whether the Fourth Amendment exempts the use of “de minimis” force

[This appeal was from the ED-MI.] In an issue of first impression in this circuit, the court held that it lacked pendent appellate jurisdiction over Heck claims in qualified-immunity appeals. It also held that the Fourth Amendment does not exempt “de minimis” violence after an arrest. Defendants-Young and Teichow arrested plaintiff while searching his girlfriend’s house. He pled guilty to resisting arrest, but later claimed that after he peacefully surrendered, the officers kneed him, kicked him and dragged him across the floor. He sued under § 1983, alleging claims for excessive-force and failure-to-intervene. The district court denied defendants qualified immunity. On appeal, Young first argued that plaintiff’s claim regarding the alleged gratuitous violence conflicted with his guilty plea for resisting arrest under Heck. In the alternative, he asserted judicial estoppel should apply. But the court disagreed, holding that it lacked jurisdiction over Young’s Heck claim where it did not satisfy the collateral-order test and the claim was still reviewable after the final judgment. Young agreed that the claim, by itself, was not reviewable, but contended the court could review it under pendent appellate jurisdiction. The court rejected this. holding for the first time that it “lack[ed] pendent appellate jurisdiction over Heck claims in qualified-immunity appeals.” The issues are not “inextricably intertwined,” and the court can fully address the issue of qualified immunity without considering the district court’s rejection of the Heck claim. Further, the Heck issue could be considered after a final judgment. Young’s judicial-estoppel claim failed where there was no “‘clearly inconsistent’ position.” The court then reviewed the excessive-force issue. To avoid the ban on“‘gratuitous’ force” against an arrestee that has surrendered, defendants argued that the Fourth Amendment did not concern itself with the de minimis level of force they allegedly used on plaintiff. Applying a “balancing approach,” the court found that defendants “have not identified any ‘legitimate government interest’” for the additional force alleged by plaintiff. Lastly, the court held that they were entitled to qualified immunity as to plaintiff’s duty to intervene claims “because a reasonable officer could believe that each” of the three incidents plaintiff alleged “ended too quickly to trigger ‘a duty to intercede.’” Affirmed in part, reversed in part, and dismissed in part for lack of jurisdiction.