Smith v. City of Hemet

court’s failure to to conclude that the instruction was con results from district comprehen- fusing, any plain error would still not concept define a “within the be prejudice because it did not average juror.” United States Tiroudas. sion Freeman, (9th Dixon, 1223, See F.2d at (holding v. 201 F.3d Cir. district, 2000) prejudice there no to appellant (holding that the court did due to the failure define the term "wil “commercial failing not err to define ful"); Moore, (stating 921 F.2d at 210 “private gain” financial be- advantage” appellant prejudice"); "suffered no actual compre- cause are terms within the ("The Walker, 850 F.2d at 475 omission juror); also average hension of the see 329, likely prejudi an instruction is `less to be Aguilar, v. United States ") (9th Cir.1996) (en banc) (“[A] cial than a of the misstatement law.' district court Kibbe, 145, (quoting Henderson v. 431 U.S. necessarily required is not to define knowl- 155, (1977)). 52 L.Ed.2d 203 that it is a common edge for reason Therefore, we hold the district court's juror can under- average word which an "accomplice" failure to define in the accom without further instruc- apply stand Moore, plice tion.”); witness instruction did not amount to F.2d United States v. (9th Cir.1990) plain error. (holding failing to de- district court did not err CONCLUSION concept fine “violence” because it is a with- ordinary jury); experience Accordingly, respect to the argu- Endell, F.2d Walker opinion, ments considered this we affirm Cir.1987) (“[C]riminal recklessness judgments of conviction.2 essentially Alaska law relates to the com- AFFIRMED. recklessness, mon-sense definition of which juror could understand and average instruction”). apply without an concept "accomplice" of an

arguably jury's ordinary is within the ex if perience. concept But even of an SMITH, Plaintiff-Appellant, Thomas accomplice comprehen were outside the average juror, sion of the the instruction HEMET, municipal corpora CITY OF here was not misleading. Although the tion; Department; Hemet Police Lee separate instruction did not include a sen Quinn; Evanson; Dave Aaron Medi explicitly defining "accomplice," tence na; Reinbolt; Trainer; Daniel Nate stated Tata Tirouda "was also indicted Miller; Hewitt, Defendants-Ap Peter case," thereby providing this an pellees. abridged version of the definition of "ac No. 02-56445. Rosa, complice." See Guam v. Dela (9th Cir.1981) (per 1260-61 cu Appeals, United States Court of riam) (defining accomplice an as "one who Ninth Circuit. could have been indicted for the same of Argued and Submitted Oct. 2004. accessory or principal"). fense either as Filed Jan. In the context of the instructions as whole, accomplice witness instruction And, confusing.

was not even if we were regarding remaining accompanying 2. Please Memorandum the Tiroudas' claims of see Disposition holdings for a discussion of our error. Mann, Esq.

Robert and Donald W. Cook, CA, Esq., Angeles, Los for the plaintiff-appellant. Hemet, H. Biggs, City Attorney,

Julie CA; Feffer, Burke, R. Esq., Elizabeth Sorensen, LLP, Williams & Angeles, Los CA, defendants-appellees. for the SCHROEDER, Before: Judge, Chief PREGERSON, REINHARDT, KLEINFELD, THOMAS, SILVERMAN, FLETCHER, PAEZ, BERZON, W. BYBEE, CALLAHAN, Circuit Judges. REINHARDT;

Opinion by Judge by Judge Dissent SILVERMAN. REINHARDT, Judge. Department (“Department”) Hemet Police Circuit reporting that her “was hitting husband clarify en banc to took this case physical her with her.” Mrs. and/or whether, under Heck v. regarding law emergency personnel Smith informed Humphrey, 512 U.S. gun, her husband did not have a there (1994), § 1983 action for 129 L.Ed.2d house, weapons were no and he was necessarily force is barred excessive pajamas. clad his Penal plaintiffs conviction under California 148(a)(1) willfully de- resisting, Code Daniel Reinbolt was of- Officer the first laying, obstructing peace officer ficer to arrive the house order to performance of his duties. We also take investigate the incident. He observed bring occasion to our circuit into line this standing porch on his front respect others with to the defini- with the pockets.” “noticed Smith’s hands in his “deadly tion of force.” announced himself and in- officer appeals the district Thomas Smith Smith to remove his hands from structed granting the refused, court’s order defendants’ pockets. responding his summary judgment motion expletives directing Officer Rein- action for excessive use of force. We re- bolt to come to him. Officer Reinbolt in- § hold that 1983 action verse and Smith’s approach, formed that he would Smith but Heck exces- barred because the only after removed his from Smith hands may employed against have sive force been pockets and his showed he had no engaged him to time subsequent to weapons. again Smith refused remove for the conduct constituted the basis pockets and his hands his instead circumstance, his conviction. In such home. entered his action demon- Smith’s neither dispatch After Officer Reinbolt advised necessarily implies nor strates the invalidi- transpired, reemerged of what had Smith ty of conviction. also that in hold porch onto the with his hands still in his “deadly this circuit force” has the same pockets. again Officer Reinbolt instructed meaning as does the other circuits complied to show his hands. Smith Smith term, defined the a have definition instruction, with this but then refused to origin its Penal finds Model “put follow an order to his hands on his deadly define force that Code. We as head and walk towards [the officer’s] risk of causing creates substantial death Instead, again Smith asked Offi- voice[.]” bodily injury. or serious We reverse the and enter the approach cer Reinbolt grant summary judgment and remand home with him. to the district court. response Nate arrived in Officer Miller I. FACTUAL AND PROCEDURAL request to Officer Reinbolt’s radioed HISTORY Observing Smith’s refusal to assistance. Reinbolt, cooperate The facts of the encounter between with Officer Officer police seriously dispatch request and the are not Miller contacted addi- Smith assistance, including a canine unit. disputed. To the extent that there is tional however, parties, Quinn, David a canine handler with difference between Officer shortly Department, we look to the version most favorable to the arrived thereafter “Quando,” canine. Officer plaintiff, non-moving party. On with 16, 1999, night August responded wife Aaron Medina also to one Smith’s emergency call calls. placed phone to the assistance Quinn turn dog’s Officer instructed Smith to arms from the Quinn attack. Officer place around and his hands on his head. Quando then ordered to bite Smith a third order, again obey time, refused to Smith dog time. This bit into Smith’s Quando despite being informed that could buttock. all transpiring, While this was him might be sent to subdue bite. pepper-sprayed Smith was at least four warning, Quinn Without further Officer times, at least sprayings two of which oc- sprayed in the face pepper Smith with curred after the police dog had seized him spray. responded with expletives Smith skin, and broken his and at least one after residence, attempted reenter his pinned the officers had ground. to the but the door had been locked Mrs. Eventually, the officers secured the Smith. Several more officers then moved handcuffs on both of Smith’s arms. Offi- onto porch, grabbed Smith from be- cer Reinbolt then washed eyes Smith’s out hind, door, him against slammed hose, nearby water from a but did not porch; threw him down on the Officer cleanse the wounds he received as a result Quinn ordered the canine to attack him. dog bites.1 Paramedics arrived Quando right bit Smith on his shoulder shortly thereafter and attended to Smith’s point, and neck area. At some either be- injuries. attack, fore or after the order to dog pled guilty Superior California sank his teeth into arm clung Court to a violation of California Penal to it. 148(a)(1).2 148(a)(1) Code Section pro- surrounding With at least four officers “Every vides: person willfully resists, who Quando’s him and teeth sunk into his delays, or peace obstructs ... officer neck, agreed shoulder and to com- ... in discharge or attempt to dis- ply with the officers’ orders and submit to charge any duty of his or her office or submitted, Although arrest. Smith he ad- employment, ... [guilty shall be of a mis- up” that he “curled in was a fetal mits Smith demeanor].” was sentenced to 36 position attempt in an to shield himself probation. months’ from dog and that one of his hands was somewhere,” Smith filed a complaint “tucked in still out of the under U.S.C. § Court, 1983 in the officers’ As District alleging view. one the officers at- arms, tempted Quando the officers used secure both was excessive force when by Quinn sprayed instructed pepper spray Officer to bite a Smith and sicced time; second time dog police this bit canine on him. The defendants on his left Upon side and shoulder blade. moved summary for judgment on several Quinn’s order, Officer Quando ultimately grounds, among them that Heck v. Hum- retreated, dragged and the officers phrey § bars Smith’s 1983 action and that off porch, face down. Once off the the challenged use of force—the pepper porch, Smith continued to spray shield one of his police dog appropriate —was Although 1. the dissent is correct that Officer The record is unclear as to the duration of the tape recording Reinbolt's encounter entire say encounter. Suffice it to that we know, between police given Smith and the Hemet is about depositions declaration and seconds, case, neglects minutes and 13 substantially longer men- it was tape tion part that the than five which constitutes a minutes. partial the record recording Smith, tape, by encounter. The introduced pled guilty 2. spousal battery Smith also begin does point not 243(e). until some after he § re- under California Penal Code That porch turned to the from inside the house. conviction is not at issue in this case. 148(a)(1). Heck, § tion or sentence under under the circumstances. and reasonable 2364; summary judg- granted court 512 U.S. at S.Ct. see also The district Gates, that Heck barred Cunningham ment on the basis (9th Cir.2003) (as (Heck Judgment amended) § action. for the 1153-54 entered, filed a was and Smith defendants bars on suits "based theories `neces timely Appeal. Notice of sarily imply invalidity plaintiff's] of[the ") Heck, or (quoting convictions sentences.' II. DISCUSSION 2364). 487, 114 512 U.S. at conclude that success Smith's action Bar Alleged Humphrey Heck v. A. give necessary would not rise to such Humphrey, the United In Heck v. implication. held that: Supreme States Court damages alleg- order to recover [I]n Under California Penal Code or im- edly unconstitutional conviction 148(a)(1), § legal elements of a viola "[t]he by for other harm caused prisonment, or (1) ... tion are as follows: the defendant actions whose unlawfulness would ren- resisted, willfully delayed, or obstructed a invalid, a a conviction or sentence der (2) officer, peace when the officer was en § that the con- plaintiff prove must performance or her gaged viction or sentence has been reversed (3) duties, the defendant knew rea or- appeal, expunged direct executive sonably should have known the other der, declared invalid a state tribunal person peace engaged officer determination, authorized to make such performance of his or her duties." In re question by into a federal called C., 1325, 1329, Cal.App.4th Muhammed of a writ of habeas cor- court’s issuance (2002) (citations Cal.Rptr.2d omit damages bearing .... A claim for pus ted). 148(a)(1) For a conviction to be to a conviction or sen- relationship valid, a criminal defendant must have "res tence that has not been so invalidated is ist[ed], delay[ed], or obstruct[ed]" Thus, cognizable of his officer exercise duties. lawful prisoner damages a state seeks when California, the lawfulness of the officer's suit, §a the district court must of conduct is an essential element of the judgment a in favor of consider whether obstructing resisting, delaying, fense of or necessarily imply the plaintiff would Curtis, peace People a v. officer. See sentence; invalidity of his conviction or 347, 354-56, Cal.Rptr. n. Cal.2d would, complaint if it must be dis- 713, (1969); Susag City 450 P.2d 33 v. .... missed Forest, Cal.App.4th Lake 486-87, 2364. Heck (Cal.Ct.App.2002). 512 U.S. "If Cal.Rptr.2d says arising that "if a criminal conviction performing not his or her the officer was the arrest, of the same facts stands and is funda out time the arrest duties at the mentally inconsistent with the unlawful be and the arrestee cannot be is unlawful damages havior for which section 1983 are section convicted under Penal Code (a)." added). sought, the 1983 action must be dis (emphasis Id. subdivision Towery, missed." v. Smithart 952(9th Cir.1996). Supreme Excessive force used As the arrest is not question relevant is officer at the time explained,

Court § in of the officer's subsequent performance success 1983 within the whether Id.; Olguin, 119 Cal. "necessarily imply" duty. People or "demon suit would (Cal. 39, 45-46, Cal.Rptr. 663 invalidity App.3d convic strate" the earlier 1981) ("[A]n § arrest made with ex successful 1983 suit based on Ct.App. excessive necessarily force would not in- equally imply is unlawful. is a `[It] cessive force validity of conviction peace for a officer to use Sanford’s under public offense 148(a)(1) § in because the officer’s use of ex- and excessive force unreasonable effect ") (citation omitted) (em subsequent cessive force occurred to the ing an arrest.' White, conduct for which Sanford was convicted added); phasis People 101 Cal. 148(a)(1)). § (Cal.Ct.App.1980) 161, 167, Cal.Rptr. App.3d hus, present case it ("T Defendants contend that Heck bars jury for the becomes essential be told § 1983 action because the lawful they the arrest was made if found ness of Smith’s arrest was determined in force, the arrest was unlaw with excessive voluntarily the criminal action in which he they ful find the defendant not should pled guilty. They urge that if Smith’s guilty charges required which those allegations subjected that he was to exces lawfully engaged per officer to be during sive force the arrest are now found ([Cal.Penal formance of his duties Code] true, to be will finding necessarily (b), 148).") §§ (empha subd. 243 and imply invalidity criminal his convic added). sis 148(a)(1). § tion under Because that con reversed, viction expunged, has not been Under the definitions set forth invalid, declared question by called into above, the California cases listed “the time corpus, issuance of a writ of habeas defen not previous of the arrest” does include dants assert that precluded Smith is stages of law enforcement activities pursuing §his 1983 claims. arrest, to an might might not lead such responds that the un- defendants conducting investigation; as it includes lawfully against used excessive force during which the time the arrest is he had committed the acts on which being resisting A conviction for effected. based, his conviction was and thus that a 148(a)(1) may lawfully arrest under be verdict his favor not imply would only if the officers obtained do not use his conviction very was invalid. At the making excessive force in the course of least, contends, the record does not A arrest. conviction based on conduct underlay reflect which acts plea that occurred the officers commence before therefore his 1983 action is not necessar- process arresting the defendant is ily inconsistent with his conviction. Ac- “necessarily” rendered invalid cordingly, urges, Humphrey Heck v. subsequent officers’ use of excessive force agree. not bar. We arrest. For making example, unlawfully officers do not act when pertinent facts are as follows: perform investigative duties a defendant engaged Smith in at least three or four obstruct, but 148(a)(1) seeks to afterwards § acts in violation of before the they employ when excessive force mak officers used against force him. These ing Similarly, the arrest. excessive resistance, force delay, acts of willful or obstruc used a defendant has been arrested tion prior occurred to the time that after may subject properly § be the of a 1983 officers had determined to arrest for notwithstanding Indeed, action the defendant’s criminal conduct. they oc charge resisting conviction on a an ar curred course the officers' lawful lawfully rest that was itself performance duty conducted. of their investigate to See, Motts, e.g., whether an offense had occurred. The Sanford (9th Cir.2001) 1119-20 (explaining by that a refusing acts Smith include twice to ence, violated knew that Smith had reenter pockets, out of his his hands take 148(a)(1) once; refusing § to the officers came onto before repeatedly his home ing City and come down arrest.3 The porch on his head to make their his hands put and, refusing put to finally also porch, police practices expert off of Hemet’s turn around. head and hands on his that Smith had stated his declaration constituted violation 148(a)(1) these acts Each of multiple § times before violated 148(a)(1) fil warrant the § sufficient to attempted to arrest defendant officers sup Each could charge. ing of a criminal counsel Finally, argument, at oral him. that section for a conviction port a similar conces- the defendants made for investigation. criminal obstructing the sion. C., See, Muhammed 95 Cal. In re e.g., vio parties agree both Smith While 1329-30, Cal.Rptr.2d at App.4th 148(a)(1) § a number of times lated before violated defendant (holding porch to make officers came onto the 148(a)(1) officers' re § when he refused arrest, also the case Smith their away from the step to requests peated during the statute subsequently violated Green, car); People v. Cal. patrol to of the officers' efforts arrest the course Cal.Rptr.2d App.4th porch, on the him. Once the were 148(a)(1) officers § (affirming (Cal.Ct.App.1997) commands, again disobeyed their Smith obstructed in which defendant conviction sprayed pepper he was with verbally both after by officer investigating police immediately prior to the spray victim because and also intimidating suspected thus, is, suspected Quando. It clear that attempt by to intimidate attacks "the 148(a)(1) investigation. This is impeded § based on guilty victim if to pled Smith sought very Legislature which the evil came the officers his behavior onto section by arrest, the enactment of proscribe during the porch, course added). 148.") (emphasis by barred Heck. See his suit would be Heck, 486-87, 114 2364. at U.S. dispute do not Defendants case, § action a successful such 148(a)(1) their impeded when he violated necessarily mean would with by refusing comply investigation to subdue officers had used excessive these acts and that their commands unlawfully acting him and were therefore the officers came before Smith occurred In that effected. the time his arrest was attempted to porch onto the .arrest circumstance, conviction under Smith's deposi- in his Quinn stated him. Officer 148(a)(1) wrongful and would have been that, training experi- based on his tion Quinn put his hands to Mr. Smith command Specifically, stated: Officer porch? step Q: off the his head approaching Mr. you were When Smith, A: Yes. in disobedience of he was still Q: commands; noncompliance right? is that Was Mr. officers' delaying obstructing A: Sure. those commands performance of their the officers in the Q: your training, what are ... Based on duties? making an arrest for a the elements A: Yes. of the Penal Code? violation of Section 148 Q':. experi- your training So based on obstruct, delay, Somebody has to A: is, ence, by the time that Mr. Smith—that performance officer in resist porch on the you’re approaching him —Mr. duties. their Penal Code Section had violated Smith Q: engaged per- in the the officers Were A: Sure. they giving duties as were of their formance not, however, § suit would arrest unlawful. It did successful ren- invalidity. unlawful, its See id. preceding investigation demonstrate der their nor purposes would it for Heck invalidate a Heck, Smith would be allowed to Under obstructing investiga- conviction for action, however, §a if the use bring tion. California law immunizes Smith subsequent of excessive force occurred prosecution conduct that oc- the conduct on which his conviction was of, curred at the time or during the course Specifically, would based. Smith be enti- arrest, of his unlawful but does not if proceed tled to below his conviction were immunize him from prosecution for unlaw- place based on unlawful behavior that took ful conduct that prior occurred or subse- he stood alone and while untouched on his quent to that time. is, if porch his unlawful conduct oc- —that curred the officers were attempting while remaining complication. There is one investigate complaint. his wife’s Motts, As in “nothing Sanford case, judgment such Smith’s favor record us informs what the factual basis necessarily would not conflict his con- plea” for [Smith’s] was. 258 F.3d at 1119. resistance, viction because his acts of de- There is no indication as to whether lay, or would have obstruction occurred plea Smith’s was based on his conduct that engaged while the officers were impeded the officers’ investigation before performance investigative lawful of their they porch, came onto the or his subse duties, they engaged not were while quent resistance to physical attempt their effecting an arrest the use of excessive him, to arrest or both. The record is clear force. pled guilty to one count of argument wrongly 148(a)(1), §

The defendants’ violating but there is no infor focuses on conduct than Smith’s rather the mation as to which of his actions constitut phases officers’. There were two different ed plea. the basis for his charging The first, complaint simply officers’ conduct states that Smith violat here — 148(a)(1) then, investigative phase; § when Smith re ed wilfully when he and unlaw peatedly resisted, cooperate, fully refused to the arrest delayed, and obstructed the 148(a)(1) for violating and for the under of, defendant officers in discharge lying might offense that otherwise attempt to discharge, duty. their Neither might not have led to an arrest. party argument its briefs or at oral allegedly officers’ conduct unlawful which able to identify the facts underlying the transpired they physi decided to use plea or to regarding advise us what tran cal force to during spired subdue Smith occurred at the time plea. Smith entered his phase the second of their law enforcement It entirely that, is therefore possible as activities, during asserts, the course of their effort pled guilty to a violation 148(a)(1) custody. to take Smith into Prior to that on the basis of his actions time, during investigative phase, they during the time the officers were conduct commands, had issued verbal all ing their investigation. lawful As the offi concededly which were well within the lawfully cers acted in issuing orders to bounds of general police powers. their they Smith while ground were on the be investigation obstruction of that low where standing he was porch, came to an end when the orders, officers decided his disobedience of those as we Thereafter, to arrest him. in the course of have explained, would be immunized arrest, they allegedly engaged from prosecution by the officers’ subse use of excessive force that quent rendered the unlawful acts after decided to

699 subsequent we are to force to the time Sanford in- arrest him. Because unable duty, for terfered with in her “the factual basis his success sec- [Smith’s] determine id., necessarily not lawsuit does tion 1983 claim not invalidate her con- plea,” his will invalidity of his conviction and is Heck at imply the viction. is no bar.” 258 F.3d 1120 Heck, added). (citation omitted) by Heck. 512 not barred (emphasis therefore Our 487, 114 § at S.Ct. 2364. holding U.S. that a 1983 was ac- Sanford not unless tion is barred Heck the factual circumstances in Under similar alleged occurred at excessive force the Motts, we because v. held.that Sanford 148(a)(1) § time the under offense was variety of there “a accusations” were Thus, case, in this being committed. Id. against could have plaintiff the which Sanford, the officers long as as were 148(a)(1) § the convic- formed the basis of lawfully acting at the time the violation of tion, challenged the conduct and because 148(a)(1) alleged § took acts place, their predicate not the for his necessarily was force, excessive occurred whether be- § plea, Sanford’s 1983 suit did not neces- the acts Smith committed invalidity of sarily imply the the convic- fore after pled, which he not invalidate would his As tion. at 1119-20. our dis- 258 F.3d conviction.4 note, in senting aptly that case colleagues

we said force “[e]xcessive that used § explained, As we have 1983 destroy does not arrest is made action is not under Heck unless for a barred

lawfulness of the arrest” violation 148(a)(1). § clear the record that its successful California Penal Code Dis- Sanford, prosecution necessarily imply at (quoting sent 258 F.3d would 707-08 1120). earlier con Although plaintiffs at involved an demonstrate that the Sanford allegation punched viction was invalid. Because on the record Officer Motts plaintiff after the before us wé cannot determine that plaintiff in the face arrested, underlay court did limit actions that conviction not Sanford explanation upon plea to such his occurred at the time guilty its of Heck a case. during his ignores is of or the course of unlawful What the dissent San- arrest, ford, present ac clearly we held “Sanford’s con- Smith’s success necessarily impugn viction that Motts be law- tion would not con required acting fully Accordingly, of his ‘at viction. the defendants are performance duties summary judgment entitled to on the against the time the offense was com- not Hence, Humphrey.5 mitted.’ if used basis of Heck v. Motts excessive Bonner, (3d Cir.1997) (same); Additionally, Wells v. we note that other circuits 45 (5th 1995) (same). F.3d Cir. have held that Heck does bar alleging despite force actions excessive exclusively on 5. The dissent relies almost Sus See, plaintiff's resisting for conviction arrest. City Cal.App.4th ag v. See 94 Lake Forest. Doe, (7th e.g., v. 272 F.3d Robinson 1408-10, Cal.Rptr.2d 269. That case Cir.2001) finding (holding excessive controlling three is not for at least reasons. necessarily action would not in a First, Susag treated all of acts court imply plaintiff's invalidity of the convic involved, immediately including those arrest); resisting Willingham tion v. arrest, occurring preceded the as "at actual Cir.2001), (11th Loughnan, 261 F.3d Susag, time of the unlike arrest." granted judgment rt. vacated on case, separate present ce not two there were grounds, incident, other 537 U.S. phase investigative phases to the (same); (2002) Rather, City Susag L.Ed.2d 2 Martinez and the arrest itself. Albuquerque, plaintiff's Cir. court all of the actions considered Jashurek, 1999) (same); with the to have occurred in connection ar Nelson 700 Excessive Force

B. The Claim A Fourth Amendment claim of analyzed excessive force is under alleges that the officers framework Supreme outlined Court porch came onto the used both exces- Connor, in Graham v. 490 U.S. 109 force, force, generally, deadly spe- sive (1989). S.Ct. 104 L.Ed.2d 443 All him in cifically, against contravention of claims that law enforcement officers have Defendants, the Fourth Amendment. used deadly excessive or other contrast, force— urge that the force used at was wise—in the course of an arrest must be may all times reasonable and that we analyzed under the Fourth Amendment therefore affirm the district court’s sum- and its "reasonableness" standard. See mary judgment order on this alternative Connor, Graham v. 490 at U.S. 109 ground. Although we are free to affirm on 1865; Jose, v. City Ward San any alternative basis if the record 967 supports so, Cir.1992) (as amended). our doing we conclude that the 284 record Graham, before us does warrant such a result. "It is clear that under excessive alone, Susag inappli rest. For this Cal.Rptr.2d reason is 115 269. Where a defendant is Second, Susag cable here. the discussion in charged single-act awith offense but there are upon which the dissent relies is contained in multiple acts involved each of which could analysis proper the midst of an con conviction, serve jury as the basis for a a does given Humphrey. struction to be Heck v. specific not determine which act or acts form requires application Heck of federal law to the basis for the People conviction. See particular plaintiff's circumstances of the 899, 910-11, McIntyre, Cal.App.3d Susag purports conviction. Insofar as to con ("It Cal.Rptr. (Cal.Ct.App.1981) only is in Heck, doctrine, strue a federal we are in no jury] agree cumbent that culpable [the [a act] way required controlled it or to afford it date, occurred on that the exact time or se Moreover, Susag deference. misconstrues quence in relation to is not the[offense] mate states, federal law in that it as the dissent rial.") (citation omitted). Thus, jury's ver emphasizes, that the burden shifted to the necessarily dict determines the lawfulness of rights plaintiff civil to show that a favorable throughout officers' actions the whole finding necessarily imply "would not the in conduct, course of the defendant's validity of the conviction." Federal law is to alleging action the use of excessive force Sanford, contrary. See 258 F.3d at 1119 "necessarily imply invalidity would of his (placing the burden on the defendants to Susag, Cal.App.4th conviction." prove plaintiff's § success in her Cal.Rptr.2d added). (emphasis How necessarily imply action would invalidity ever, § plaintiff where a pled guilty has conviction). of her Unless it is clear that the contendere, plea or entered a of nolo such as plaintiff's impugn underlying action will did, Smith and necessarily Sanford it is not may proceed. conviction the 1983 action It the case that the factual basis for his convic misapplication is because of this of federal tion included the whole course of his conduct. Susag law that reached the result it did. Ac guilty plea plea the case of a of nolo Third, cordingly, it does not bind us. contendere, as acknowledges, the dissent law, persons California who violate defendant having is free to admit committed a 148(a)(1) respects in a number of resistance, specific delay, act or acts of single course may charged of a incident be obstruction, identify particular acts of only People convicted once. See v. Si mon, willing plead, unlawfulness to which he is Cal.App. 131 P. (Cal.Ct.App. deny engaged and to that he 1913). specific in other This rule is for the benefit of defen pled guilty acts. Because Smith general rather than charge dants and under it a encom being of, by jury, convicted passes, precludes entirely possi it is prosecution further that, contends, Smith, plea all ble as he the acts Susag involved. Unlike based was convicted those prose after a trial in actions that served to which the obstruct investigation, cutor pattern established a factual the officers' of conduct all of which oc to, of, jury sufficient guilt prior curred determine his rather than at the time beyond 1401-07, Thus, a reasonable doubt. Id. at Susag clearly arrest. distinguishable. by carefully considering stead be assessed during ar or arising before force claims objective facts and circumstances exclusively analyzed are to be rest Id. In arresting officers. confronted reasonableness [A]mendment's [F]ourth cases, availability of example, Hoy, 909 F.2d some .." Reed v. ndard.. sta denied, capturing of or subdu- (9th Cir.1989), alternative methods 501 324, cert. may be a factor to consider. 2887, ing suspect a 1250, 115 L.Ed.2d 111 S.Ct. U.S. Gates, 1432, Gross, 1441 n. 5 v. 27 F.3d See Chew (1991); Hammer v. see also Cir.1994). (en banc). (9th Cir.1991) (9th F.2d balancing the "na analysis requires That evidence, in If reviewed a intrusion" on of the quality ture and Smith, favorable to could light most "countervailing liberty with person's force, then finding a of excessive support to deter at stake" interests governmental are not entitled to sum the defendants objec use of force was whether the mine excessive mary judgment. [the “Because under the circumstances. tively reasonable nearly always requires a' inquiry] force Graham, at 1865. 490 U.S. factual con jury through disputed to sift tentions, said that there Court has to draw inferences Supreme The from, in an exces inquiry many occasions “the ‘reasonableness’ we have held objective one: mat judgment case is an or as a summary judgment sive force actions the officers’ is whether in force cases should question ter of law excessive light Gates, of the ‘objectively are reasonable’ v. granted sparingly.” Santos be confronting (9th Cir.2002); circumstances facts see also 287 F.3d (cita Riverside, Id. at 109 S.Ct. County them[.]” v. Liston of omitted); see, City amended) v. e.g., (9th Cir.1997) (as Jackson tions 965, 976 n. 10 Bremerton, Cir. (“We repeatedly that the reason have held 2001). wheth simply is not question “The ordinarily ques of force used is ableness accomplish a necessary to the force was er jury.”). This is because tion of fact for objective; it is whether legitimate police jury’s always turn on a cases almost such light, reasonable the force used was The case be credibility determinations. Hammer the relevant circumstances.” all fore us is no different. Gross, origi 846(emphasis 932 F.2d at First, quan- necessary to assess the it is nal). “The used tó arrest Smith. tum of force Graham, and Graham, articulated three factors Supreme Court the reasonable- bearing on other factors factors

indicated that relevant force, particular application inqui ness of reasonableness Fourth Amendment in a vacuum but not to be considered crime at are severity of the ry include “[1] force used to the amount of im relation issue,[2] suspect poses an whether the analysis seizure—an particular to effect a safety of the officers threat to the mediate others, ^[3] whether he is actively the district court never explicitly under- Gates, 27 F.3d at to evade took.” Chew attempting resisting arrest account, the force By the defendants’ even by flight.” 490 U.S. arrest Hem- not, however, severe. The against used Smith was The Court did S.Ct. 1865. policy, Department’s use of “Be et Police those factors. inquiry limit the U-102, classifies the use Order under the General of reasonableness cause the test dog and a service pepper capable pre spray both Fourth Amendment is ac- force. Defendants “intermediate” application,” as or mechanical cise definition types they employed both knowledge in- must reasonableness of seizure force, plain that “intermediate” force is Although view officers. he initially comply force authorized short of refused to the most severe with Officer Re- account, offi- deadly force. On Smith’s inbolt’s instruction to remove his hands greater. pajama pockets, ultimately of force was even As from his cers’ use did it, pepper-sprayed the officers so puts physical before officers used times, one of which occurred force to him. four restrain There is no indica- down, they pinned him and tion in record had sicced the that after Smith re- Quando him times. pockets on three Under the moved his hands from his there purposes them for any pos- facts as we must assess was reason to believe that he any weapon posed any of this the officers slammed Smith sessed or appeal, immedi- wall, to against ground, safety threw him the ate threat to the the the of officers or fact, down, him porch slid the while face others. In the off defendants concede in him repeatedly, and their did pepper-sprayed depositions pose either Quando or to permitted significant inju- instructed attack threat of death or serious occasions,6 ry. officers, him at least one on three such One of the defendant Officer occurring Quinn, attack while officers had in the stated his declaration that Smith threats, pinned ground. to the The canine assault made no physical, verbal or to- Quando’s puncturing anyone resulted in teeth the ward him or Although else. it is parts body. skin on various of Smith’s true that both of As until his arms were hand- well, cuffed, deposition in Smith stated his Smith continued to shield one arm pepper spray the the was exacer- dog effect of the officers and their and to because, officers, the although expletives bated officers shout at the considering eyes after he was ar- the in light flushed out evidence most favorable to rested, him, they out pepper jury very did not flush a rational could well find not, spray dog time, bites on that at any pose wounds from he did a danger neck, arm, back, shoulder, his and buttock. to the or officers others.

Next, necessary apply it is to Gra- second Graham factor we consider criteria, severity ham with the is the beginning “most the crime at issue. Gra- ham, important single spec- the three at element of 490 U.S. 109 S.Ct. 1865. On suspect poses incident, ified factors: an evening whether the Smith’s wife safety threat report immediate to the the offi- called 911 to that her husband “was cers or others.” record hitting her,” Id. The does not her was physical with and/or believing reveal basis for that Smith that grabbed very he had her breast hard. was or that posed Although armed he immediate we are mindful of the serious- anyone’s threat safety. to Smith’s wife ness reprehensibility and of domestic abuse, had informed he police had no the circumstances are not such in guns weapons or the house that he this case to warrant as the conclusion that was in pajamas. Except for the particularly dangerous his time Smith was a crimi- home, when he reentered he especially his was nal that his offense egre- was Quando question only jury There is which of fact ordered to attack after the can resolve as to whether canine ground. officers wrestled Smith to the initially prior attacked to Smith even Officer significance leave the ultimate of this factual Quinn's deposition, instruction. his trial; disagreement parties to the resolve dog began attacking stated that the him when consequence purposes it is of no for our here. against was slammed the door Officers way, summary judgment Either prop- was not Medina, Miller, However, and Reinbolt. de- er. fendants claim in declarations their arrived, could should have control Reinbolt officers used gious. When Officer complete arrest than to porch his alone holds rather standing on Smith was Quando on him once had him guns He no sic from his wife. had separated possession ground. and restrained See also Hemet weapons in his or other Police, Force," he was Chief of Gen. Or none in the house—and "Use there were (discussing "professional No. U-102 pajamas. these circum- der clad Under presence," stances, "compliance techniques," at issue the nature crime little, likely force" if officers’ other "intermediate less provides any, basis injury). A rational cause death serious physical force. use rely jury upon could such evidence as factor is The third Graham whether sessing whether the officers' use of force or at- actively resisted arrest individual City Larez was unreasonable. See Id. flight. to evade arrest tempted 635(9th 630, Angeles, F.2d r.1 Los 946 Ci the re- continually ignored Smith officers’ 991) (as amended) (finding testimony that paja- quests to his hands his remove police on expert proper procedures of "an his He place and to them on head. mas admissible); policies" was relevant a period home for brief also reentered his 1473, County, Davis v. Mason 927 F.2d However, porch. the returning before to (9th Cir.1991) (as (testi amended) 1484-85 not to run from the attempt Smith did mony plaintiffs' practices expert of police To that physically officers. the extent he law that officers violated enforcement arrest, acknowledge defendants resisted received). properly standards Al- that it lasted for a brief time. Considering severity his of though place to both the and extent Smith refused used, back, his he did attack the the force the three basic Graham arms behind not all, factors, availability their In and the of other means dog. officers or does arrest, partic- accomplishing that resistance of the it is evident appear Smith’s was any ularly question that he that the whether force used bellicose or showed fleeing was is a matter that can- signs of the area. here reasonable resolved in not be favor defendants explained, have an ad previously As we summary judgment. on in our may ditional factor that we consider analysis availability Although only of al account of Graham is the analysis, facts matters for our on both capturing ternative methods of or subdu Gates, arrest, at- at accounts of Smith did not ing suspect. a v. 27 F.3d Chew officers; at no n. that tack the indeed time did argues 5. Smith the officers' them, police threaten attack of or applicable stan even to conduct violated dog. tech Smith asserts his failure dards and that there were alternative their a body his arm from under his was subduing pre available him that uncurl niques against protect of death serious reasonable effort to himself sented a lesser threat deadly expert unreasonably of injury. declara an excessive use Smith offered Quando, police in the form a ca- training police dogs of and force of tion on of excluding question Even police dog Discussing handlers. whether nine. deadly comported police dog law whether the constituted officers' conduct with force, that, standards, jury given a well find expert relied could enforcement circumstances, totality of force used— Peace Officer Standards upon California's slamming spray, all Training, applicable pepper are four blasts which him porch, dragging and are a of De down onto the part state officers down, the ca- porch ordering face partment policy. He concluded that off times, significant to attack three and the nine ses threat of death or serious physical injury dog physical bites and assaults to the resultant officer others." 3, Thus, Id. at body unreasonable. have S.Ct. 1694. on where a —was suspect past threatens an officer a weapon held on occasions that the use indeed gun knife, such as a or a could be the officer of lesser force unreasonable is justified See, Santos, using deadly force. e.g., circumstances. See particular Smith, Billington (shoving at can F.3d 287 F.3d 853-54 amount to (9th Cir.2002) unreasonable); (holding deadly when it is excessive force justified suspect violently where a County Headwaters Forest re Defense arrest, (9th Humboldt, physically sisted 276 F.3d attacked offi 1130-31 Cir.2002) cer, grabbed (holding gun); Reyn that the use the officer's pepper County olds v. Diego, San spray protestors non-violent was exces- (9th Cir.1996) force); Oakland, City (holding deadly sive Watkins v. (9th Cir.1998) suspect, force was F.3d reasonable where a (holding who had subject behaving erratically, been deputies’ police dog swung use of a officer); Henrich, knife at an analysis); Scott v. excessive force Mendoza v. (9th Cir.1994) Block, Cir.1994) F.3d 914-15 (suggesting (same). sum, the use of deadly objectively has force is submitted a suspect reasonable where a points gun which substantial amount evidence from officers); States, jury a Garcia v. United reasonable could conclude that the 826 (9th Cir.1987) 806, F.2d (holding used against force that excessive.7 deadly force was reasonable where the Deadly Force C. plaintiff attacked a patrol agent border stick). a rock and alleges

Smith that the defendants unnecessarily unreasonably presented not The used issue is initially him, only against excessive force but also Quando whether the use of to subdue him deadly force. He asserts that the latter an amounted to of deadly unreasonable use Quinn force; however, type of force was used when Officer party as no to this case police the to ordered canine attack him. asserts that the deadly use of force would Garner, 1, In v. here, Tennessee U.S. 105 have appropriate been the issue is 1694, (1985), 85 L.Ed.2d 1 actually the Su Quando the whether use of preme police Court held that a may officer deadly constituted force. As we are re- deadly not necessary use force is viewing "unless summary judgment, order of all prevent to escape prob and the officer has that we must decide the is whether use of able cause suspect po Quando to believe that the to subdue Smith could have suggest (9th ground Cir.1994) ("[N]o Defendants an additional particularized case upon summary judgment which order necessary law deputy for a know to qualified immunity. could be affirmed: excessive has deputy been used a when Whether the qualified officers are entitled to sics a canine on a handcuffed arrestee who immunity may depend large part fully on factual has completely surrendered and is under jury control."); required determinations bewill to County see also LaLonde v. Riv of erside, Certainly, (9th make. a Cir.2000) use of canine 204 F.3d (ap could, pepper spray clearly plying estab pepper rule the use of Mendoza law, choose, officers). lished have spray by police constituted the use exces howev circumstances, er, sive force in some in which qualified to resolve the issue of immu put nity case officers would have appeal, been preferring on this to allow the notice their conduct would be unconsti district question court to consider that initial Block, ly. See v. tutional. 27 F.3d Mendoza impermissible -facts “an consideration tutes deadly force under amounted context,” the Fourth Amendment of this case. objective of which is limited scope Supreme Unfortunately, the Court adopted test reasonableness Graham. what constitutes explicitly define did not Third, the “disjunctive we feared that Id.' Gamer, and the definition deadly force deadly a turn force rule into ‘or’would in previously have announced is that we rule, bodily injury’ rendering Gar- ‘serious City Escondi Vera Cruz correct. ordinary force ner’s distinction between Cir.1998) (as do, F.3d deadly nullity.” force a virtual Id. amended), mean this considered the court case, In that held that the term. we ing of asks to reconsider us our Vera reasonably like deadly force means “force ruling, out that seven points Cruz so, In doing Id. at 660. we ly to kill.” now the definition of employ circuits “or in seri refused to add result expressly rejected. Indeed, force" "deadly that we appears bodily injury,” phrase ous adopting alone in we stand definition other employed by definition all upon reconsideration we find the term the term. Id. circuits have defined See, unduly e.g., restrictive. to be Gutier deliberately chose Similarly, we 661-62. Antonio, City rez v. San 139 F.3d than “reasonably likely” rather “creates (5th Cir.1998) (deadly force "creates a risk,” phrase employed substantial bodily risk of death or serious substantial to have con appeals other courts of all Mil injury"); Phillips City Estate question. Id. at 662-63. fronted (7th Cir.1997) waukee, adopted circuits have definition other (same); Philadelphia Litiga In re City of adopt today is identical and that we (3rd Cir.1995) tion, forth in Mod respects to that set most the Model Penal Code defini (adopting Model Penal Code el Penal Code. See tion); Topeka, v. F.2d Ryder City 814 (1962). 3.11(2) of (10th Cir.1987) (same); 1412, 1416 n. 11 Cruz, Model In we reviewed the Vera (6th Barnes, 909, F.2d v. 854 912 Robinette and deadly definition of force Penal Code Cir.1988) (same); City Pruitt v. Mont of at rejected it for three reasons. 139 F.3d (11th 1475, 1479 n. 10 gomery, 771 F.2d First, Pe- we that the Model 662. stated Cir.1985) Schnarr, (same); 547 Mattis v. definition, governs criminal nal Code which (8th Cir.1976) (en 1007, F.2d 1009 n. than liability, purpose serves a different nom., banc), vacated moot sub as Ashcroft standard which sets the bound- the Gamer Mattis, 1739, 52 97 S.Ct. U.S. police aries of reasonable conduct (1977) (same). recognize L.Ed.2d Id. We were concerned the Constitution. juris consistency importance the of across liability personal on the ba- imposing dictions, opportunity this and we take definition sis of the Model Penal Code conformity into bring our circuit and activi- police “make timid deter would adopt a definition other circuits and necessary Id. protection.” for our ties practicalities compatible with is more Second, the Model Penal we said that today's physical of confrontat and realities subjective com- definition includes Code component and consti- ions.8 ponent, that such Minnetonka, footnote, Cir. Eighth F.3d n. 3 noted the

8. In a Circuit Nevertheless, 2004). applied law in Pe- between Vera it the Model conflict Cruz approval definition, undoubtedly circuits indicated its other because nal Code City approach. See Vera Kuha v. Cruz Cruz, we purposes, objective part In were concerned that ment Vera would, rejected we “make Graham, the definition employed. test must be See necessary police timid and deter activities short, U.S. at 1865. S.Ct. “would turn protection” for our subjective courts do not use the alternative bodily deadly rule into a ‘serious force when they apply “deadly force” test rule, injury’ rendering Gamer’s distinction § 1983 look simply cases. We to the ob- ordinary deadly force and between force jective part the test: whether the force at nullity.” 139 virtual Howev employed “creates a substantial risk of er, our have turned out to concerns be causing bodily injury.” death serious overstated, and indeed unfounded. A defi That the definition courts describe varies including “a nition substantial risk of seri to this extent from the full Model Penal injury” by police bodily ous is used in all Code is version no reason for us not to states, Columbia, fifty the District of and employ universally a test that is now ac- Rico, and has Puerto such use not resulted cepted throughout country. Equally difficulties we feared. im Furthermore, the fact that we apply are case, is portant for this it the definition ing a of deadly definition force to defen Hemet California Police De dant similar officers to the partment Adopting use. the common defi definition we use when evaluating the deadly nition force impose should no used criminal burden defendants need not more of a on law enforcement con offi cern already throughout Supreme cials than us. and our exists Court own court nation —a burden that most law often enforce have referred the Model voluntarily ment have persuasive officials chosen to Penal as authority Code in in Garner, impose upon See See, themselves. 471 terpreting the e.g., Constitution. 18-20, 1694 (discussing U.S. Co., United Gypsum States U.S. importance police department actual U.S. 98 S.Ct. 57 L.Ed.2d polices adopting when a Fourth (1978) Amend (relying on a Model Penal Code rule). ment definition, stated, the Court ALI “[t]he Model Penal Code guid is one source of Cruz court The Vera also criticized the upon ance which the Court has relied to Model Penal Code definition because questions illuminate type”). this Both subjective contained an alternative compo- police the we honor and the criminals we objective nent in to primary addition the prosecute subject are to the binding same court, one. Like the Vera Cruz we attrib- Constitution. We to refuse fabricate a ute subjec- the inclusion an alternative constitutional distinction police between component tive in the Model Penal Code that, and being civilians far from the fact based on definition to that the Model Penal any explanation, constitutional primarily designed govern Code is to has been crim- However, overwhelmingly rejected by liability. judges inal the definition and law deadly in enforcement force used the other in officials nationwide. circuits We cases, rejected erred in frequently while Vera Cmz when we labeled the the definition, Model Penal Code is definition that finds in designed origin its the Model implementing Code, for use in the Penal Fourth we now take this opportu necessarily nity Amendment differs in to one overrule that holding adopt the minor respect the Model deadly by Penal definition of force used the other Code’s definition. For Fourth Amend- circuit throughout courts the nation. Mattis, adopted the the definition court in opinion its en banc 547 F.2d 1009 n. 2. summary grant of motion for whether defendants’ need not here determine judgment is suspect a dog to subdue police use of the force or the deadly generally

constitutes AND REMANDED. REVERSED might under which such use circumstances SILVERMAN, Judge, Circuit announced Having such force.

constitute CALLAHAN, KLEINFELD whom "deadly force" we leave to definition of the join, dissenting: Judges, Circuit to opportunity court the first the district to the of this case. concept the facts apply By analyzing separately every single only that while we have not We note approximately second of the five-minute found that the use of prior of our cases encounter between Smith and Hemet force,9 dogs deadly constituted we police majority for police, the misses forest never stated the use such have Here’s forest: trees. From Cf. such force. ob dogs police cannot constitute moment arrived and told R Barnes, 909, 913 pockets, to his hands from his until inette remove Cir.1988) him, police finally (although failing po find that the handcuffed trying lice to subdue and were detain dog deadly in that case constituted police Smith, undisputed and he resisted. The force, "an the court stated that officer's continuous, this facts show that was one use using police dog, or the intent sequence of uninterrupted events. trained could trans improperly dog, majority by gets focusing off track force"). dog deadly use form the into ways might many how different Kuha, 365 at 598 n. 3 Compare police have after the ar violated law ("[T]he properly use of a trained rived scene. It does not matter. at the dog apprehending in the course of sus actions, is that how What matters Smith’s force"). deadly does not constitute pect numerous, ever culminated one arrest. convicted, by guilty plea, He was then III. CONCLUSION California, officer. a con resisting an resisting viction arrest establishes that reasons, we foregoing For reverse the arrest not the force used effect summary grant judg- court’s the district White, People v. 101 Cal. excessive. us, record before we cannot ment. On the (1980). App.3d Cal.Rptr. § 1983 action is conclude that Smith’s why That is 1983 excessive Heck; prosecution barred successful If his lawsuit lawsuit is barred Heck. necessarily impugn of this action will successful, in his judgment the civil were Further, conviction. consider- his earlier favor be inconsistent with his crimi would most light the evidence favor- ing nal conviction. Smith, jury could find a reasonable able used force. defendants excessive case The contrast between this and Sanford Motts, Cir.2001), and Finally, adopt we overrule Vera Cruz 258 F.3d 1117 v . accepted Sanford, of universally point. the definition the In the illustrates force; not, however, deadly already we and term do had arrested plaintiff been allegedly such force was decide whether the officers used handcuffed when she here, face Id. question punched by but for initial Officer Motts. leave following held: "Excessive force used consideration remand. The 1118. We course, today. applied 9. Of we have heretofore overrule unduly stringent Vera test which we Cruz destroy an arrest is made does not tance. He started the car and accelerated of engine lawfulness the arrest" for violation act of resistance. —another § deputy of California Penal Code 148. Id. at pepper-sprayed then Susag added). (emphasis again Because a suc get and ordered him to of out car, § claim for Susag events took cessful which act refused —another of place to her arrest could in no subsequent Susag resistance. pushed then one of the conviction, invalidity § way imply the of her deputies yet another act of resistance — — violating struggled ord's conviction for deputies with the when Sanf § trigger 148 did not Heck Hum tried to handcuff him—a final act of resis § phrey bar to her lawsuit. A jury tance. guilty found one violating § count of Susag and his sharp This present is contrast to the family subsequently brought §a 1983 suit the allegedly ease where excessive force alleging excessive force and other claims employed being while Smith was ar- against the officers involved. Id. at many rested. It does not matter how Cal.Rptr.2d 269. The trial court times Smith refused to take his hands out granted summary judgment to the officers step porch. his off pockets It grounds on the Susag's suit was many does not matter how times he re- barred Heck. Id. many fused to turn around how times may arms have flailed his as the The California Appeal Court of affirmed. so, undisputed doing rejected tried to handcuff him. The In the court Susag’s break,” facts argument show that “there was no that the bar apply Heck did not court, Cunningham use the words when was unclear which act of acts of between po- Smith’s disobedience and the resistance formed the basis of Susag’s response lice in his culminated arrest. 148 conviction. Gates,

See Cunningham v. [Susag] contends the record (9th Cir.2002). “provocative case, us, criminal which is not before act” police response and “the he claims does not reflect which acts formed the ... closely was excessive are so interrelat- conviction, basis for his aas result ed, conviction forecloses his [Smith’s] ex- pursue he can his section 1983 action for claim.” cessive force Id. the officer’s use of pepper spray before ultimately he was subdued placed law, This anis issue of California and in patrol car. disagree and con- Smith's, very a case with close to facts clude that claim of excessive force Appeal California concluded Court based discrete acts that occurred im- §a plain Heck barred where the suit mediately preceding [Susag’s] arrest tiff had of a been convicted 148 violation barred Supreme holding Court’s involving multiple acts resistance. Sus omitted], Heck v. Humphrey, [citation Forest, ag City Lake 94 Cal.App.4th finding since a in his favor would neces- 1401, 1405-06, (2002). Cal.Rptr.2d sarily imply invalidity of his convic- In Susag, deputy sheriff noticed a car tion under Penal Code section sub- expired registration called (a). division a tow truck. Id. at Cal.Rptr.2d 269. Although Susag initially 1409-10, denied own Id. at 115 Cal.Rptr.2d 269. car, ing addition, the after it was hitched to the tow the Appeal Court of contrasted truck he got into driver's seat. Susag’s the He to presented situation the one was out car that, ordered "several Sanford, noting times" “[Susag] alleged has but get refused to out—one act of resis no claims of place excessive force that took

709 elapsed between the two incidents placed and in minutes finally subdued he was after 1410, intervening space at 115 Cal. of time the Id. and the patrol "[i]n car.” the added.) down, Rptr (emphasis completely .2d 269. had calmed defendant Here, activity"). criminal and ceased his convic majority argues Smith’s The however, is that Smith’s en undisputed only on his based might tion have been place counter the Hemet took with porch, before while on the conduct continuous, five- during uninterrupted one used; the conviction fails ergo, was force period.1 the minute lawfulness of to establish argu This point from that on. employed The course of conduct rule is continuous addition, by Susag. ment is foreclosed protection for the of criminal defendants course of continuous under California’s The from like Smith. rule bars state rule, conviction for resist conduct again for acts that prosecuting defendant all of necessarily includes ing arrest part parcel were and of the same continu- comprise a continuous indivisi acts that It this rule that now ous transaction. McFarland, v. 58 People transaction. ble prevents the State of California 748, 760, 473, Cal.Rptr. 376 P.2d Cal.2d for the oc- charging anew conduct Simon, (1962); 21 Cal.App. v. People curring refused to take his first (1913). 90, major 88, P. The con And pockets. again hands of his for out determining similar whether siderations on head. refusing put to his hands his are part are of the same transaction acts turning for not around. And again And elapsed between the amount of time porch. And again coming not off for incidents, there and whether was discrete to again refusing submit handcuff- for to activity. in the criminal See any break and ing. charged Smith was convicted Jefferson, Cal.App.2d v. People an officer that neces- resisting one count of (1954) (holding P.2d two sarily encompassed sequence the entire deadly weap acts of assault with a distinct If, up leading events to his arrest. minute taking place within fifteen reason, to waive whatever Smith wanted incident, period part "were a same plead guilty protection of that rule held they reasonably not be to could act, leaving open to one himself identified offenses, each com two separate constitute for acts that other- possible prosecution itself, each which would plete letters, it incum- be dead was wise would People separate charge"); require Susag, say him to so. See upon bent Mota, 171 Cal. Cal.App.3d (“Once 1410,115 Cal.Rptr.2d 269 supra, at (1981). acts of Had discrete Rptr. prov- their the defendants met burden over the course of place resistance taken had an undisturbed conviction ing [Susag] minutes, five than an hour rather 148, subdivision under Penal Code section same constituted the of might have (a), himto Moreno, provide burden shifted People fense. See Cal. that would not evidence of excessive force Supp. 8-9 Rptr. Cal.App.3d invalidity of his con- (1973) necessarily imply the violating (holding two instances viction.”). thirty § 148 were two offenses because recording transcript of The says the scene. majority encounter lasted tape off after "substantially was turned longer than minutes." I shows that five having "substantially been handcuffed depends Smith had guess that on what brief, eyes garden out water from a According washed longer” to Smith's means. finish, Reinbolt, recording last- respond, hose. start to From Officer the first officer ed and thirteen seconds. five minutes tape recorder when he arrived started majority’s

The citation of from cases Christopher WATTS, L. its misunderstanding other circuits reveals Plaintiff-Appellee, of state criminal law how affects the Heck analysis. question The this is what case resisting arrest conviction es- California McKINNEY, Defendant-Appellant, J. The citation Robinson v. tablishes. Doe, Cir.2001), and other states, arising cases Steinberg, federal other S.J. Defendant. different, law is where criminal sheds No. 03-16665. Illinois, no on the light matter. for United Appeals, States Court of example, excessive does not render Ninth Circuit. (“Police an Id. at illegal. arrest 923. might well use in effecting excessive force Submitted Nov. 2004.* arrest.”). perfectly lawful As we have Filed Jan. 2005. seen, the law is otherwise California.2 gratu- To If summarize: Smith had been

itously sprayed by with mace or bitten arrested,

dog he had been his convic- resisting

tion for officer would have However,

barred his 1983 lawsuit. ev-

erything complains of took place in arresting course him. district The correctly

court ruled that Smith’s exces-

sive force lawsuit was barred Heck v. reason,

Humphrey, respect- and for that I

fully dissent.3 er, 2. multiple It is also the rule in California that completeness of the interest culminating acts of resistance in an arrest for story, prior it should be noted that to this resisting an officer are Quando's subsumed in one Cali- incident, capped teeth had been fornia Penal Susag, Code 148 conviction. incapable were inflicting deep puncture 1409-10, Cal.App.4th Cal.Rptr.2d wounds. The bite wounds sustained rule, majority may 269. The dislike that but superficial were and were cleaned at the is not free to its substitute own view Cali- by paramedics. scene Smith was taken to a state law fornia of the California arrest, hospital immediately after his before Small, Appeal. Court of See Mendez being jail. booked into He was evaluated at (9th Cir.2002). hospital required but no further treatment sort. Heck-barred, Because lawsuit is it is reach, does, unnecessary to majority as the * panel unanimously finds case this suitable question whether force used to argument pursu- for submission without oral arrest Smith was excessive whether the use 34(a)(2). R.App. ant to Fed. P. dog deadly constituted Howev- force.

Case Details

Case Name: Smith v. City of Hemet

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jan 10, 2005

Citation: 394 F.3d 689

Docket Number: 02-56445

Court Abbreviation: 9th Cir.