Metropolitan News-Enterprise


Tuesday, June 2, 2020


Page 1


Court of Appeal:

Conviction for Disturbing Peace Doesn’t Bar Excessive-Force Suit

Opinion Says Judge Cho Erred in Dismissing Action Based on Plaintiff’s No-Contest Plea to Infraction;

That Defense by the City of Los Angeles, Judge Rice Previously Ruled in the Case, Was Invalid


By a MetNews Staff Writer


The Court of Appeal for this district yesterday reversed a judgment of dismissal ordered by a Los Angeles Superior Court judge who held that an action for excessive force by a law enforcement officer was barred in light of the plaintiff’s conviction for disturbing the peace—a defense that was earlier rejected in the case by a judge of the same court.

 Justice John Shepard Wiley of Div. Eight wrote the opinion which overturns a decision by Judge Lawrence Cho. Cho, assigned to preside at trial of an action brought by limousine driver Aleksandr Kon, contradicted a ruling by Judge Stuart Rice in connection with a summary judgment/adjudication motion by the defendant, the City of Los Angeles.

The case stems from the June 13, 2014 arrest of Kon at Los Angeles International Airport by airport police officer Damien Andrews; he was charged with misdemeanor resisting arrest; the matter was resolved by his pleading no contest to the infraction of disturbing the peace, with a $100 fine that was suspended.

 At issue was whether a defense was available under the U.S. Supreme Court’s 1994 decision in Heck v. Humphrey. Rice determined on July 14, 2017:

Heck and its progeny do not act as a bar to plaintiff’s causes of action.”

Cho’s Ruling

Cho declared on Feb. 6, 2018:

“The Court finds the Heck Bar applies, and orders the Plaintiff’s complaint be Dismissed, with prejudice….”

Although one judge of the Superior Court generally does not countermand a ruling of another judge of the same court, Cho explained:

“Since Judge Rice’s opinion on the Heck Bar was in the context of denying a motion for summary judgment, there is no preclusive effect to prevent this Court from addressing the Heck Bar here at trial.”

Wiley’s Opinion

More to the point than Heck, Wiley said in yesterday’s opinion, is the California Supreme Court’s 2008 decision Yount v. City of Sacramento.

“Under Yount…, Kon’s conviction of disturbing the peace does not bar Kon’s suit for excessive force, because there is no inconsistency between the two cases,” Wiley declared.

In Heck, it was held that “if a criminal conviction arising out of the same facts stands and is fundamentally inconsistent with the unlawful behavior for which” civil rights damages are sought, the civil rights action must be dismissed. The court pointed to the need for “finality and consistency” in the law and embraced “the hoary principle that civil tort actions are not appropriate vehicles for challenging the validity of outstanding criminal judgments applies to” actions for civil rights damages “that necessarily require the plaintiff to prove the unlawfulness of his conviction or confinement.”

Yount Decision

Yount arose from a Sacramento police officer shooting his gun—thinking it was a Taser—at a man who was violently resisting arrest. Then-Justice Marvin Baxter (now retired) wrote the opinion, which extends Heck to state causes of action.

He said:

“[W]e find that Yount’s claims are barred to the extent they allege that Officer Shrum was not entitled to use force at all in this incident. Yount’s resistance justified the officers’ use of reasonable force in response….However, as defendants concede, the use of deadly force was not reasonable in this instance. Yount’s conviction for violating Penal Code section 148, subdivision (a)(l) did not in itself justify the use of deadly force, either. Accordingly, Yount’s civil claims are not barred to the extent they challenge Officer Shrum’s use of deadly force.”

‘Twin Concerns’

Applying Yount to the facts in Kon’s case, Wiley said:

“Concerns for finality and consistency mean California courts bar repetitive lawsuits unless these twin concerns have no bearing, as when the second litigation is not repetitive. When the second case raises a question different from what the first litigation settled, courts permit the second suit: there is no bar, for there is no inconsistency between the two. That was Yount’s situation, for Yount’s criminal conviction for resisting arrest did not establish police were right to use deadly force against him.”

The jurist went on to say:

Yount’s analysis applies here. The question is whether the second lawsuit, which is Kon’s civil case, is consistent with the first: Kon’s criminal prosecution. They indeed are consistent, because the second lawsuit is about whether Andrews used force that was reasonable or excessive, which is an issue the first case did not address or resolve.”

Wiley elaborated:

“Kon’s conviction for disturbing the peace did not establish Andrews used only reasonable force against Kon. Penal Code section 415, subdivision (1) applies to ‘[a]ny person who unlawfully fights in a public place or challenges another person in a public place to fight.’

“How you act and how police respond are two different issues. The criminal case was about the former. This civil case is about the latter. That is, fighting or challenging someone to fight does not entitle the other to respond with excessive force. Conversely, you can disturb the peace even though the police later beat you up. Their bad response is not a defense to your bad act.”

The case is Kon v. City of Los Angeles, B290929.

Gennady L. Lebedev, Sam Helmi, and Genevieve Bourret-Roy of the Studio City firm of Lebedev, Michael & Helmi represented Kon. Attorneys on appeal for the city were Rodolfo F. Ruiz, and Erin E. Uyeshima of the Pasadena firm of Vanderford & Ruiz.


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