Metropolitan News-Enterprise


Thursday, June 10, 2004


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Ruling Restricting Excessive Force Suits Against Police to Be Reviewed

En Banc Ninth Circuit Panel Will Reconsider Effect of Guilty Plea to Resisting Arrest


By a MetNews Staff Writer


A ruling that an unchallenged state court conviction for resisting arrest bars a plaintiff from suing police under civil rights law for using excessive force will be reviewed by an en banc panel of the Ninth U.S. Circuit Court of Appeals, the court said yesterday.

In a brief order, Chief Judge Mary M. Schroeder said a majority of the court’s unrecused active judges had voted to reconsider the January decision of a three-judge panel in Smith v. City of Hemet, 02-56445.

Judge Johnnie B. Rawlinson, writing for herself and Judge Barry G. Silverman, said then that Thomas Smith’s suit under 42 U.S.C. Sec. 1983 against Hemet, its Police Department, and several officers was barred by his guilty plea to violating Penal Code Sec. 148. Under Heck v. Humphrey, 512 U.S. 477 (1994), a civil rights plaintiff may not bring an action that would “necessarily imply the invalidity of his conviction or sentence” where that conviction or sentence was not successfully challenged, either directly or in a habeas proceeding.

Interpretation of Statute

Rawlinson noted that the California Court of Appeal has interpreted Sec. 148, which provides for punishing as a misdemeanant anyone who “willfully resists, delays, or obstructs any public officer [or] peace officer . . . in the discharge or attempt to discharge any duty of his or her office or employment,” to include a requirement that the actions of the officer be lawful.

Under California’s jury instructions for use in Sec. 148 prosecutions, a police officer is not discharging his or her duties if the officer is using unreasonable or excessive force, Rawlinson pointed out.

California law leaves us no choice but to regard a [Sec.] 148 conviction as incompatible with an allegation that the arrest was unlawful,” the judge explained.

Judge William A. Fletcher dissented, saying the ruling provided a “road map that will enable police effectively to eliminate many, perhaps most, [Sec.] 1983 excessive force suits.”

  Fletcher declared:

  “Under the majority’s decision, if a police department is concerned that one or more of its officers may have used excessive force, it should press charges under Cal. Penal Code [Sec.] 148(a)(1) or an equivalent statute. In most cases, it will be easy to show that at some point in the encounter the would-be [Sec.] 1983 plaintiff ‘resist[ed], delay[ed], or obstruct[ed]’ a police officer in the discharge of his or her duties. If the would-be plaintiff pleads guilty to a violation of [Sec.] 148(a)(1) or its equivalent in return for a probated sentence, as Smith did in this case, a [Sec.] 1983 suit based on excessive force is forever barred. This is a pretty neat trick, made possible—indeed invited—by the majority’s decision.”

Domestic Dispute

Smith was arrested after his wife called police, reporting he was hitting her. The responding officers found him standing on his porch, and he refused to comply with their instructions to remove his hands from his pockets and place them on his head.

An altercation ensued, during which Smith was sprayed in the face with pepper spray and bitten by a police dog.

Fletcher conceded that Smith’s Sec. 148 plea would bar his civil rights action if the plea had been based on his resistance during the attempt to subdue him. But the plea did not specify a factual basis, leaving open the possibility that it was based on his earlier refusal to comply with the officers’ orders, the dissenting jurist said.

“[I]f Smith pled guilty based on his behavior before the officers came onto the porch, his suit would not be barred,” Fletcher explained. “This is so because if Smith were successful in his [Sec.] 1983 suit, that success would be based on excessive force that occurred after Smith had already violated [Sec.] 148(a)(1). In that circumstance, the success of Smith’s [Sec.] 1983 suit would not necessarily imply or demonstrate the invalidity of his conviction or sentence under [Sec.] 148(a)(1), for the conviction would be based on behavior that took place while Smith stood alone and untouched on his porch.”

Rawlinson and Silverman were wrong, Fletcher said, to suggest that a civil rights suit may be brought only if the excessive force claim and the resisting arrest plea were based on “two discrete incidents.”

Alternate Ground

The dissenting judge said Smith’s right to bring his suit was also supported by Nonnette v. Small, 316 F.3d 872 (9th Cir. 2002). Nonnette, he said, interpreted the Heck bar to apply only to plaintiffs were incarcerated or on probation, and thus able to petition for habeas relief.

Since Smith’s sentence—three years on probation—expired while his civil rights suit was pending, he was entitled to proceed under Nonnette whether or not his suit called the validity of his resisting arrest conviction into question, Fletcher asserted.

Smith’s attorney, Donald W. Cook of Robert Mann & Donald W. Cook in Los Angeles, said he believed the “neat trick” identified by Fletcher was the reason the court voted to rehear the case en banc.

“That’s the issue that caught their attention,” Cook said. “For years the practice has been hurt a man, charge a man. We even had a deputy sheriff testify that that’s how he had been trained.”

Police abuse lawyers refer to charges under Sec. 148 as “contempt of cop” and believe they are widely used to protect officers against liability when police or prosecutors suspect excessive force has been used, Cook explained.

While the en banc court could focus instead on the Nonnette issue, Cook said, he called that unlikely, noting it was not addressed his petition for rehearing.


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