Tuesday, April 7, 2026
Page 4
Ninth Circuit to Decide, En Banc, Effect of No-Contest Plea
Majority Said, in Now-Vacated Opinion, That Prisoner Pleading Nolo Contendere to Charge of Resisting Executive Officer Not Barred From Suing Guards for Use of Excessive Force
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals will rehear an en banc case in which the majority of a three-judge panel held that a California state prisoner may pursue a civil rights claim against two prison guards for use of excessive force in connection with an altercation notwithstanding that he pled no contest to a charge, related to the incident, of resisting an executive officer.
Circuit Judge Consuelo M. Callahan partially got what she wished for, saying in her Oct. 20, 2025 dissent:
“The majority’s opinion is wrong and should be overturned, if not by our court sitting en banc then by the Supreme Court.”
The action of the Ninth Circuit’s nonrecused active judges on Friday does not overturn the decision, in the sense of repudiating it, but does vacate the panel’s opinion, authored by Senior Circuit Judge William A. Fletcher and signed by Circuit Judge Ana de Alba.
Heck v. Humphrey
Fletcher’s opinion reversed the dismissal by District Court Judge Jennifer L. Thurston of the Eastern District of California of an action brought by inmate Jerry Lee King, incarcerated in Kern Valley State Prison. Thurston acted on the basis of the U.S. Supreme Court’s 1994 decision in Heck v. Humphrey in which it was held that a state prison is barred from seeking damages in federal court if “judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence.”
Pointing to Federal Rule of Evidence 410(a), which says that evidence of a no-contest plea “is not admissible against the defendant who made the plea” in subsequent civil or criminal proceedings, Fletcher wrote:
“We have never squarely answered the question of whether the evidentiary bar of Rule 410(a) applies when a defendant in a § 1983 suit seeks to introduce evidence of the plaintiff’s nolo contendere plea in support of a Heck bar…..
“We now hold that Rule 410(a) bars admission of a nolo contendere plea to show that a § 1983 plaintiff committed the crimes to which he pleaded nolo contendere.”
Callahan’s Dissent
Callahan argued in her dissent:
“Heck applies equally to all collateral attacks on criminal convictions, regardless of whether a given conviction is the result of a jury verdict or a pica by the defendant. As is relevant here we have consistently applied the Heck bar to collateral attacks on criminal convictions following no contest pleas.”
She noted: “We have…specifically rejected, albeit in unpublished decisions, the majority’s assertion that Rule 410(a) effectively creates an exception to the Heck bar for collateral challenges to criminal convictions resulting from nolo contendere pleas.”
Invalidity of Conviction
The judge added:
“The majority docs not dispute that King’s success in his civil action would necessarily imply the invalidity of his conviction—nor could it.”
She commented:
“[T]he scope and impact of the majority opinion should not be underestimated. Very few criminal cases actually go to trial, most arc resolved at the pleading stage, and many of those arc the result of nolo contendere pleas. Thus, the majority’s strained reading of Rule 410(a) would subject state officials to a broad swath of civil cases that as a matter of fact imply the invalidity of the plaintiffs’ underlying convictions and thus should be barred under Heck, as is the case here.”
Friday’s order came in King v. Villegas, 23-1713.
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