This сase arose from the bloody aftermath of a robbery in the Newbury Park neighborhood of Los Angeles. After police surrounded the getaway car, the two robbers, Robert Cunningham and Daniel Soly, exchanged gunfire with the police. Soly died and Cunningham was seriously injured. Cunningham was later tried and convicted of, among other things, murdering Soly by provoking the police to shoot. Soly’s parents and Cunningham filed civil rights claims against the police and other defendants associated with the City of Los Angeles, alleging that police used excessive force in violation of the Fourth and Fourteenth Amendments.
We must decide whether Cunningham’s claims are barred under Heck v. Humphrey,
Background
The facts and procedural history of this complex case are described more fully in our earlier opinion, Cunningham v. Gates,
I. The Robbery
The Los Angeles Police Department’s (“LAPD”) Special Investigation Section (“SIS”) learned in May of 1995 that Daniel Soly and Robert Cunningham had been involved in an armed robbery in Simi Valley. On June 26,1995, SIS officers started surveillance of the two men after receiving tips that more criminal activity was afoot. That evening, SIS officers followed Cunningham and Soly to Newbury Park, California, and watched as they robbed the Southwest Liquor and Deli.
What happened next is hotly debated. Cunningham and Soly allege in their complaint that SIS officers simply began to shoot, firing eighteen shotgun blasts and handgun shots into the getaway car, killing Soly, leaving Cunningham paralyzed, and wounding two fellow SIS officers. The SIS officers insist that Cunningham and Soly fired first. Whatever happened, the scene was chaos; the Ventura County Sheriff deputies called to the scene had difficulty distinguishing between the plainclothes police and the suspects and ended up arresting everyone.
II. Cunningham’s State Convictions
Cunningham was charged with several crimes related to the robbery and gunfight. A California jury convicted Cunningham of three counts of attempting to murder SIS officers by firing a weapon at thеm; Sol/s murder by provoking the officers into shooting at the getaway car; robbery; and burglary. Cunningham based his defense on the theory that the police fired first, and that he acted in self-defense when returning fire. The trial judge instructed the jury that they were to find Cunningham guilty of felony murder if, during the commission of the robbery,
1. The defendant also committed an intentional provocative act;
2. A peace officer, in response to the provocative act, killed a perpetrator of the crime of robbery;
3.The defendant’s commission of the intentional provocative act was a cause of the death of Daniel Soly.
The instructions defined a “provocative act” as
1. Intentional,
2. The natural consequences of the аct were dangerous to human life,
3. The act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life,
4. The act was above and beyond the act required for the commission of the crime of robbery, and
5. The act was not in self defense.
On the attempted murder counts, the jury was instructed that it must find that Cunningham knew or should have known that hе was shooting at police officers engaged in the performance of their duties.
III. The § 1983 Claims
Daniel Soly’s parents, Armand and Betty Soly (the “Solys”) and Robert Cunningham (collectively, the “plaintiffs”), filed claims under 42 U.S.C. § 1983 against various groups of defendants, including SIS officers who were directly involved in the gun battle with Cunningham and Soly (the “shooting officers”), LAPD officers who were not directly involved (the “non-shooting officers”), supervisory officers, members of the Los Angeles Police Commission, some members of the Los Angeles City Council, then-Mayor Richard Rior-dan, and various assistant Los Angeles city attorneys (the “City Officials”). The Solys and Cunningham alleged Fourth and Fourteenth Amendment violations as a result of police usе of excessive force.
The overarching theory alleged in the complaint was that all of the officers and City Officials engaged in a “standard operating procedure” designed to create a situation likely to result in the death of the plaintiffs. In carrying out their part of
The City Officials and the various officers filed motions for summary judgment, all but one of them claiming qualified immunity, and all of them arguing that the claims wеre barred by Heck because plaintiffs’ theories would necessarily imply the invalidity of Cunningham’s state criminal convictions.
The City Officials and the officers filed an interlocutory appeal. We held that we did not have jurisdiction tо consider the denial of summary judgment on the Heck-related defense. Cunningham,
On remand, the case was reassigned to Chief Judge Marshall, who reconsidered the Heck issue and granted summary judgment to all of the remaining officials. That decision is the basis of this appeal.
Discussion
Under Heck,
I. Cunningham’s Claims
As Cunningham’s convictions have not been reversed, expunged, or called into question by issuance of a writ of habeas corpus, Cunningham cannot pursue claims under § 1983 if they are based on theories that “necessarily imply the invalidity of his eonviction[s] or sentence^].” Heck,
Cunningham’s claims are squarely barred to the extent they depеnd on the theory that he did not provoke the firestorm. In accord with the jury instructions, Cunningham’s conviction for felony murder required the jury to find that he intentionally provoked the deadly police response, and that he did not act in self-defense. Any civil claim that Cunningham was not the provocateur necessarily fails as a result of the jury verdict.
But the complaint asserts a broader theory that does not depend on a finding that Cunningham was not the provocateur of the firestorm. Cunningham accuses the SIS officers of using excessive force to deliberately create a situation that provoked him into firing. We recognized such a danger creation theory in Alexander v. City of San Francisco,
In order to prevail under the danger creation theory, however, Cunningham would need to call into question other elements necessary for his state convictions. In contrast to the police in Alexander, the SIS officers did not begin the chain of events that resulted in Cunningham’s injuries. In convicting him of felony murder, the jury necessarily found that, pursuant to the jury instructions, Cunningham’s firing at the police occurred during the commission of a robbery. The SIS officers’ jamming of the getaway car falls within the temporal scope of Cunningham’s crime and is part of a single act for which the jury found that Cunningham bears responsibility. Under the jury instructions that were given, the jury could not have convicted Cunningham for attempted murder unless the jury concluded that at the moment Cunningham fired on the SIS officers, he knew or should have known that they were police officers acting within the scope of their duties. This circumstance makes it impossible for Cunningham to prove, as he must to prevail on his § 1983 claim, that the police used excessive force when they jammed the getaway car be
Cunningham asserts that, even if the police did not create a dangerous situation by jamming his car, and fired only when provoked, he should be allowed to proceed under the theory that the police nоnetheless used excessive force by responding to that provocation with the shotgun blasts and pistol shots. Cunningham urges us to rely on Hernandez v. City of Los Angeles,
A close examination of Smithart reveals a very different factual setting from Cunningham’s situation. The plaintiff in Smit-hart tried to use his truck to run over the sheriff and state patrolman, an act for which he was later convicted of assault. Id. at 952-53. The plаintiff claimed that, after he got out of his truck, the sheriff and patrolman used excessive force to arrest him. Id. at 952. The assault conviction and the excessive force claim did not arise from the same acts. Indeed, once he was out of the truck and without access to his “assault weapon,” the officers had no need tо use excessive force to subdue the plaintiff or to protect themselves.
Here, however, there was no break between Cunningham’s provocative act of firing on the police and the police response that he claims was excessive. Indeed, in convicting Cunningham of felony murder, the jury concluded that the pоlice response was a natural consequence of Cunningham’s provocative act. Because the two are so closely interrelated, Cunningham’s conviction forecloses his excessive force claim against the SIS officers.
Cunningham’s § 1983 claims, in each of their incarnations, are barred under Heck because they would necessarily imply the invalidity of his state convictions, for felony murder and attempted murder.
II. The Solys’ Claims
Although the Solys’ § 1983 claims are identical to Cunningham’s, Soly died during the shooting and was never charged or convicted of any crime related to the events of that night. Nonetheless, the officers argue that the Solys are precluded by the California сommon law of privity from relitigating issues .that were already decided in Cunningham’s trial. See Matsushita Elec. Indus. Co. v. Epstein,
Under California law, the collateral estoppel effect of Cunningham’s convictions would prevent the Solys from pursuing their § 1983 claims if (1) the issues necessarily decided at Cunningham’s trial are identical to the issues in the Solys’ § 1983 claims; (2) Cunningham’s trial resulted in a judgment on the merits; and (3) the Solys were in privity with Cunningham during his criminal trial. See State Farm Mut. Auto. Ins. Co. v. Davis,
Although we agree with the district court that the first two elements are satisfied, we do not agree that the Solys were in privity with Cunningham at his trial. To establish privity, the officers must show that the Solys “ ‘had an identity or community of interest with, and adequate representation by, the losing party in thе first action’ ” and that, under the circumstances, the Solys “ ‘should reasonably have expected to be bound by the prior adjudication.’ ” State Farm,
Under the first requirement for privity, we cannot conclude that the Solys’ interests at Cunningham’s trial were so similar that Cunningham was their “virtual representative.” United States v. Geophysical Corp.,
It is impossible to say, with the kind of certainty required to apply collateral es-toppel, that, even were he to have faced the same chargеs as Cunningham, Soly’s interests at trial would not have sharply diverged from Cunningham’s. See Citizens for Open Access,
We also note that the circumstances of Cunningham’s trial do not suggest that the Solys could expect to be bound by the results. The jury’s verdict rested on Cunningham’s actions, not Soly’s. It was Cunningham’s provocation, not Soly’s, that was the focus of Cunningham’s trial. And in convicting Cunningham of felony murder, the jury necessarily concluded that he was a cause, not the cause, of Soly’s death. Thus, Cunningham’s conviction does not on its face foreclose the possibility that the police also contributed to Soly’s death.
The officers cannot establish privity under either of the required prongs of the privity test. Common law privity exceeds the bounds of common sense when a murder conviction prevents not only the murderer, but his victim, from seeking relief. Because the Solys’ § 1983 claims are not barred under Heck or common law privity, we reverse with regard to their claims and remand to the district court for further proceedings.
Notes
. The City Officials and LAPD officers also sought summary judgment on grounds unrelated to the issues we now consider.
. The plaintiffs argue that Chief Judge Marshall abused her discretion by departing from the law of the case to hold that the claims are barred by Heck. In light of the procedural posture of the case, we conclude that Chief Judge Marshall did not abuse her discretion in reconsidering the application of Heck.
. Relying on Spencer v. Kemna,