Lead Opinion
Opinion by Judge REINHARDT; Dissent by Judge SILVERMAN.
We took this case en banc to clarify the law regarding whether, under Heck v. Humphrey,
Thomas Smith appeals the district court’s order granting the defendants’ summary judgment motion in his § 1983 action for excessive use of force. We reverse and hold that Smith’s § 1983 action is not barred by Heck because the excessive force may have been employed against him subsequent to the time he engaged in the conduct that constituted the basis for his conviction. In such circumstance, Smith’s § 1983 action neither demonstrates nor necessarily implies the invalidity of his conviction. We also hold that in this circuit “deadly force” has the same meaning as it does in the other circuits that have defined the term, a definition that finds its origin in the Model Penal Code. We define deadly force as force that creates a substantial risk of causing death or serious bodily injury. We reverse the grant of summary judgment and remand to the district court.
I. FACTUAL AND PROCEDURAL HISTORY
The facts of the encounter between Smith and the police are not seriously disputed. To the extent that there is a difference between the parties, however, we look to the version most favorable to the plaintiff, the non-moving party. On the night of August 16, 1999, Smith’s wife placed an emergency phone call to the Hemet Police Department (“Department”) reporting that her husband “was hitting her and/or was physical with her.” Mrs. Smith informed emergency personnel that her husband did not have a gun, there were no weapons in the house, and he was clad in his pajamas.
Officer Daniel Reinbolt was the first officer to arrive at the house in order to investigate the incident. He observed Smith standing on his front porch and “noticed Smith’s hands in his pockets.” The officer announced himself and instructed Smith to remove his hands from his pockets. Smith refused, responding with expletives and directing Officer Rein-bolt to come to him. Officer Reinbolt informed Smith that he would approach, but only after Smith removed his hands from his pockets and showed that he had no weapons. Smith again refused to remove his hands from his pockets and instead entered his home.
After Officer Reinbolt advised dispatch of what had transpired, Smith reemerged onto the porch with his hands still in his pockets. Officer Reinbolt again instructed Smith to show his hands. Smith complied with this instruction, but then refused to follow an order to “put his hands on his head and walk towards [the officer’s] voice[.]” Instead, Smith again asked Officer Reinbolt to approach and enter the home with him.
Officer Nate Miller arrived in response to Officer Reinbolt’s radioed request for assistance. Observing Smith’s refusal to cooperate with Officer Reinbolt, Officer Miller contacted dispatch to request additional assistance, including a canine unit. Officer David Quinn, a canine handler with the Department, arrived shortly thereafter with “Quando,” a police canine. Officer Aaron Medina also responded to one of the assistance calls.
With at least four officers surrounding him and Quando’s teeth sunk into his shoulder and neck, Smith agreed to comply with the officers’ orders and submit to arrest. Although Smith submitted, he admits that he was “curled up” in a fetal position in an attempt to shield himself from the dog and that one of his hands was “tucked in somewhere,” still out of the officers’ view. As one of the officers attempted to secure both arms, Quando was instructed by Officer Quinn to bite Smith a second time; this time the dog bit Smith on his left side and shoulder blade. Upon Officer Quinn’s order, Quando ultimately retreated, and the officers dragged Smith off the porch, face down. Once off the porch, Smith continued to shield one of his arms from the dog’s attack. Officer Quinn then ordered Quando to bite Smith a third time. This time, the dog bit into Smith’s buttock. While all this was transpiring, Smith was pepper-sprayed at least four times, at least two of which sprayings occurred after the police dog had seized him and broken his skin, and at least one after the officers had pinned him to the ground.
Eventually, the officers secured the handcuffs on both of Smith’s arms. Officer Reinbolt then washed Smith’s eyes out with water from a nearby hose, but did not cleanse the wounds he received as a result of the dog bites.
Smith pled guilty in California Superior Court to a violation of California Penal Code § 148(a)(1).
Smith filed a complaint under 42 U.S.C. § 1983 in the District Court, alleging that the officers used excessive force when they sprayed him with pepper spray and sicced the police canine on him. The defendants moved for summary judgment on several grounds, among them that Heck v. Humphrey bars Smith’s § 1983 action and that the challenged use of force — the pepper spray and police dog — was appropriate
II. DISCUSSION
A. The Alleged Heck v. Humphrey Bar
In Heck v. Humphrey, the United States Supreme Court held that:
[I]n order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus .... A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983. Thus, when a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed ....
Under California Penal Code § 148(a)(1), "[t]he legal elements of a violation ... are as follows: (1) the defendant willfully resisted, delayed, or obstructed a peace officer, (2) when the officer was engaged in the performance of his or her duties, and (3) the defendant knew or reasonably should have known that the other person was a peace officer engaged in the performance of his or her duties." In re Muhammed C.,
Excessive force used by a police officer at the time of the arrest is not within the performance of the officer's duty. Id.; People v. Olguin,
Under the definitions set forth in the California cases listed above, “the time of the arrest” does not include previous stages of law enforcement activities that might or might not lead to an arrest, such as conducting an investigation; it includes only the time during which the arrest is being effected. A conviction for resisting arrest under § 148(a)(1) may be lawfully obtained only if the officers do not use excessive force in the course of making that arrest. A conviction based on conduct that occurred before the officers commence the process of arresting the defendant is not “necessarily” rendered invalid by the officers’ subsequent use of excessive force in making the arrest. For example, the officers do not act unlawfully when they perform investigative duties a defendant seeks to obstruct, but only afterwards when they employ excessive force in making the arrest. Similarly, excessive force used after a defendant has been arrested may properly be the subject of a § 1983 action notwithstanding the defendant’s conviction on a charge of resisting an arrest that was itself lawfully conducted. See, e.g., Sanford v. Motts,
Defendants contend that Heck bars Smith’s § 1983 action because the lawfulness of Smith’s arrest was determined in the criminal action in which he voluntarily pled guilty. They urge that if Smith’s allegations that he was subjected to excessive force during the arrest are now found to be true, that finding will necessarily imply the invalidity of his criminal conviction under § 148(a)(1). Because that conviction has not been reversed, expunged, declared invalid, or called into question by issuance of a writ of habeas corpus, defendants assert that Smith is precluded from pursuing his § 1983 claims.
Smith responds that the defendants unlawfully used excessive force against him after he had committed the acts on which his conviction was based, and thus that a verdict in his favor would not imply that his conviction was invalid. At the very least, Smith contends, the record does not reflect which acts underlay his plea and therefore his § 1983 action is not necessarily inconsistent with his conviction. Accordingly, he urges, Heck v. Humphrey is not a bar. We agree.
The pertinent facts are as follows: Smith engaged in at least three or four acts in violation of § 148(a)(1) before the officers used force against him. These acts of willful resistance, delay, or obstruction occurred prior to the time that the officers had determined to arrest him for any criminal conduct. Indeed, they occurred in the course of the officers' lawful performance of their duty to investigate whether an offense had occurred. The acts by Smith include twice refusing to
Defendants do not dispute that Smith violated § 148(a)(1) when he impeded their investigation by refusing to comply with their commands and that these acts by Smith occurred before the officers came onto the porch and attempted to .arrest him. Officer Quinn stated in his deposition that, based on his training and experience, he knew that Smith had violated § 148(a)(1) before the officers came onto the porch to make their arrest.
While both parties agree that Smith violated § 148(a)(1) a number of times before the officers came onto the porch to make their arrest, it is also the case that Smith subsequently violated the statute during the course of the officers' efforts to arrest him. Once the officers were on the porch, Smith again disobeyed their commands, both after he was sprayed with pepper spray and also immediately prior to the attacks by Quando. It is, thus, clear that if Smith pled guilty to § 148(a)(1) based on his behavior after the officers came onto the porch, during the course of the arrest, his suit would be barred by Heck. See Heck,
Under Heck, Smith would be allowed to bring a § 1983 action, however, if the use of excessive force occurred subsequent to the conduct on which his conviction was based. Specifically, Smith would be entitled to proceed below if his conviction were based on unlawful behavior that took place while he stood alone and untouched on his porch — that is, if his unlawful conduct occurred while the officers were attempting to investigate his wife’s complaint. In such case, a judgment in Smith’s favor would not necessarily conflict with his conviction because his acts of resistance, delay, or obstruction would have occurred while the officers were engaged in the lawful performance of their investigative duties, not while they were engaged in effecting an arrest by the use of excessive force.
The defendants’ argument wrongly focuses on Smith’s conduct rather than the officers’. There were two different phases of the officers’ conduct here — first, the investigative phase; then, when Smith repeatedly refused to cooperate, the arrest for violating § 148(a)(1) and for the underlying offense that otherwise might or might not have led to an arrest. The officers’ allegedly unlawful conduct which transpired after they decided to use physical force to subdue Smith occurred during the second phase of their law enforcement activities, during the course of their effort to take Smith into custody. Prior to that time, during the investigative phase, they had issued only verbal commands, all of which were concededly well within the bounds of their general police powers. Smith’s obstruction of that investigation came to an end when the officers decided to arrest him. Thereafter, in the course of the arrest, they allegedly engaged in the use of excessive force that rendered the arrest unlawful. It did not, however, render their preceding investigation unlawful, nor would it for Heck purposes invalidate a conviction for obstructing that investigation. California law immunizes Smith from prosecution for any conduct that occurred at the time of, or during the course of his unlawful arrest, but it does not immunize him from prosecution for unlawful conduct that occurred prior or subsequent to that time.
There is one remaining complication. As in Sanford v. Motts, “nothing in the record informs us what the factual basis for [Smith’s] plea” was.
Under similar factual circumstances in Sanford v. Motts, we held.that because there were “a variety of accusations” against the plaintiff which could have formed the basis of the § 148(a)(1) conviction, and because the challenged conduct was not necessarily the predicate for his plea, Sanford’s § 1983 suit did not necessarily imply the invalidity of the conviction.
As we have explained, a § 1983 action is not barred under Heck unless it is clear from the record that its successful prosecution would necessarily imply or demonstrate that the plaintiffs earlier conviction was invalid. Because on the record before us wé cannot determine that the actions that underlay Smith’s conviction upon his plea of guilty occurred at the time of or during the course of his unlawful arrest, Smith’s success in the present action would not necessarily impugn his conviction. Accordingly, the defendants are not entitled to summary judgment on the basis of Heck v. Humphrey.
Smith alleges that after the officers came onto the porch they used both excessive force, generally, and deadly force, specifically, against him in contravention of the Fourth Amendment. Defendants, in contrast, urge that the force used was at all times reasonable and that we may therefore affirm the district court’s summary judgment order on this alternative ground. Although we are free to affirm on any alternative basis if the record supports our doing so, we conclude that the record before us does not warrant such a result.
A Fourth Amendment claim of excessive force is analyzed under the framework outlined by the Supreme Court in Graham v. Connor,
The Supreme Court has said that “the ‘reasonableness’ inquiry in an excessive force case is an objective one: The question is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them[.]” Id. at 397,
In Graham, the Supreme Court indicated that relevant factors in the Fourth Amendment reasonableness inquiry include “[1] the severity of the crime at issue,[2] whether the suspect poses an immediate threat to the safety of the officers or others, and [3] whether he is actively resisting arrest or attempting to evade arrest by flight.”
If the evidence, reviewed in the light most favorable to Smith, could support a finding of excessive force, then the defendants are not entitled to summary judgment. “Because [the excessive force inquiry] nearly always requires a' jury to sift through disputed factual contentions, and to draw inferences therefrom, we have held on many occasions that summary judgment or judgment as a matter of law in excessive force cases should be granted sparingly.” Santos v. Gates,
First, it is necessary to assess the quantum of force used tó arrest Smith. “The three factors articulated in Graham, and other factors bearing on the reasonableness of a particular application of force, are not to be considered in a vacuum but only in relation to the amount of force used to effect a particular seizure — an analysis the district court never explicitly undertook.” Chew v. Gates,
Next, it is necessary to apply the Graham criteria, beginning with the “most important single element of the three specified factors: whether the suspect poses an immediate threat to the safety of the officers or others.” Id. The record does not reveal any basis for believing that Smith was armed or that he posed an immediate threat to anyone’s safety. Smith’s wife had informed the police that he had no guns or weapons in the house and that he was in his pajamas. Except for the time when he reentered his home, he was in plain view of the officers. Although he initially refused to comply with Officer Re-inbolt’s instruction to remove his hands from his pajama pockets, he ultimately did so before the officers used any physical force to restrain him. There is no indication in the record that after Smith removed his hands from his pockets there was any reason to believe that he possessed any weapon or posed any immediate threat to the safety of the officers or others. In fact, the defendants concede in their depositions that Smith did not pose a significant threat of death or serious injury. One of the defendant officers, Officer Quinn, stated in his declaration that Smith made no threats, verbal or physical, toward him or anyone else. Although it is true that until both of his arms were handcuffed, Smith continued to shield one arm from the officers and their dog and to shout expletives at the officers, considering the evidence in the light most favorable to him, a rational jury could very well find that he did not, at any time, pose a danger to the officers or others.
The second Graham factor we consider is the severity of the crime at issue. Graham,
The third Graham factor is whether the individual actively resisted arrest or attempted to evade arrest by flight. Id. Smith continually ignored the officers’ requests to remove his hands from his pajamas and to place them on his head. He also reentered his home for a brief period before returning to the porch. However, Smith did not attempt to run from the officers. To the extent that he physically resisted arrest, defendants acknowledge that it lasted for only a brief time. Although Smith refused to place both his arms behind his back, he did not attack the officers or their dog. In all, it does not appear that Smith’s resistance was particularly bellicose or that he showed any signs of fleeing the area.
As we have previously explained, an additional factor that we may consider in our Graham analysis is the availability of alternative methods of capturing or subduing a suspect. Chew v. Gates,
Considering the severity and extent of the force used, the three basic Graham factors, and the availability of other means of accomplishing the arrest, it is evident that the question whether the force used here was reasonable is a matter that cannot be resolved in favor of the defendants on summary judgment.
Although only Smith’s account of the facts matters for our analysis, on both accounts of the arrest, Smith did not attack the officers; indeed at no time did he even threaten to attack any of them, or their dog. Smith asserts that his failure to uncurl his arm from under his body was a reasonable effort to protect himself against an unreasonably excessive use of deadly force in the form of Quando, a police canine. Even excluding the question of whether the police dog constituted deadly force, a jury well could find that, given the circumstances, the totality of force used— four blasts of pepper spray, slamming Smith down onto the porch, dragging him off the porch face down, ordering the ca
C. Deadly Force
Smith alleges that the defendants unnecessarily and unreasonably used not only excessive force against him, but also deadly force. He asserts that the latter type of force was used when Officer Quinn ordered the police canine to attack him. In Tennessee v. Garner,
The issue presented by Smith is initially whether the use of Quando to subdue him amounted to an unreasonable use of deadly force; however, as no party to this case asserts that the use of deadly force would have been appropriate here, the issue is actually only whether the use of Quando constituted deadly force. As we are reviewing an order of summary judgment, all that we must decide is whether the use of Quando to subdue Smith could have
Unfortunately, the Supreme Court did not explicitly define what constitutes deadly force in Gamer, and the definition that we have previously announced is incorrect. In Vera Cruz v. City of Escondido,
In Vera Cruz, we reviewed the Model Penal Code definition of deadly force and rejected it for three reasons.
Smith asks us to reconsider our Vera Cruz ruling, and points out that seven circuits now employ the definition of "deadly force" that we rejected. Indeed, we stand alone in adopting a definition of the term that upon reconsideration we find to be unduly restrictive. See, e.g., Gutierrez v. City of San Antonio,
The Vera Cruz court also criticized the Model Penal Code definition because it contained an alternative subjective component in addition to the primary objective one. Like the Vera Cruz court, we attribute the inclusion of an alternative subjective component in the Model Penal Code definition to the fact that the Model Penal Code is primarily designed to govern criminal liability. However, the definition of deadly force used in the other circuits in § 1983 cases, while frequently labeled the Model Penal Code definition, is designed for use in implementing the Fourth Amendment and necessarily differs in one minor respect from the Model Penal Code’s definition. For Fourth Amendment purposes, the objective part of the test must be employed. See Graham,
Furthermore, the fact that we are applying a definition of deadly force to defendant police officers that is similar to the definition we use when evaluating the force used by criminal defendants need not concern us. The Supreme Court and our own court have often referred to the Model Penal Code as persuasive authority in interpreting the Constitution. See, e.g., United States v. U.S. Gypsum Co.,
III. CONCLUSION
For the foregoing reasons, we reverse the district court’s grant of summary judgment. On the record before us, we cannot conclude that Smith’s § 1983 action is barred by Heck; his successful prosecution of this action will not necessarily impugn his earlier conviction. Further, considering the evidence in the light most favorable to Smith, a reasonable jury could find that the defendants used excessive force. Finally, we overrule Vera Cruz and adopt the universally accepted definition of the term deadly force; we do not, however, decide whether the officers used such force here, but leave that question for initial consideration following remand. The grant of defendants’ motion for summary judgment is
REVERSED AND REMANDED.
Notes
. Although the dissent is correct that Officer Reinbolt's tape recording of the encounter between Smith and the Hemet police is about 5 minutes and 13 seconds, it neglects to mention that the tape which constitutes a part of the record is only a partial recording of the encounter. The tape, introduced by Smith, does not begin until some point after he returned to the porch from inside the house. The record is unclear as to the duration of the entire encounter. Suffice it to say that we know, given the declaration and depositions in the case, that it was substantially longer than five minutes.
. Smith also pled guilty to spousal battery under California Penal Code § 243(e). That conviction is not at issue in this case.
. Specifically, Officer Quinn stated:
Q: When you were approaching Mr. Smith, he was still in disobedience of the officers' commands; is that right?
A: Sure.
Q: ... Based on your training, what are the elements for making an arrest for a violation of Section 148 of the Penal Code?
A: Somebody has to obstruct, delay, or resist a police officer in the performance of their duties.
Q: Were the officers engaged in the performance of their duties as they were giving command to Mr. Smith to put his hands on his head and step off the porch?
A: Yes.
Q: Was Mr. Smith’s noncompliance with those commands obstructing or delaying the officers in the performance of their duties?
A: Yes.
Q':. So based on your training and experience, Mr. Smith — that is, by the time that you’re approaching him on the porch — Mr. Smith had violated Penal Code Section 148.
A: Sure.
. Additionally, we note that other circuits have held that Heck does not bar § 1983 actions alleging excessive force despite the plaintiff's conviction for resisting arrest. See, e.g., Robinson v. Doe,
. The dissent relies almost exclusively on Susag v. City of Lake Forest. See
. There is a question of fact which only a jury can resolve as to whether the police canine initially attacked Smith even prior to Officer Quinn's instruction. In his deposition, Smith stated that the dog began attacking him when he was slammed against the door by Officers Medina, Miller, and Reinbolt. However, defendants claim in their declarations that Quando was ordered to attack only after the officers wrestled Smith to the ground. We leave the ultimate significance of this factual disagreement to the parties to resolve at trial; it is of no consequence for our purposes here. Either way, summary judgment was not proper.
. Defendants suggest an additional ground upon which the order for summary judgment could be affirmed: qualified immunity. Whether the officers are entitled to qualified immunity may depend in large part on factual determinations the jury will be required to make. Certainly, the use of a police canine and pepper spray could, under clearly established law, have constituted the use of excessive force in some circumstances, in which case the officers would have been put on notice that their conduct would be unconstitutional. See Mendoza v. Block,
. In a footnote, the Eighth Circuit noted the conflict between Vera Cruz and the law in other circuits and indicated its approval of the Vera Cruz approach. See Kuha v. City of Minnetonka,
. Of course, we have heretofore applied the unduly stringent Vera Cruz test which we overrule today.
Dissenting Opinion
with whom KLEINFELD and CALLAHAN, Circuit Judges, join, dissenting:
By analyzing separately every single second of the approximately five-minute encounter between Smith and the Hemet police, the majority misses the forest for the trees. Here’s the forest: From the moment the police arrived and told Smith to remove his hands from his pockets, until the police finally handcuffed him, the police were trying to subdue and detain Smith, and he resisted. The undisputed facts show that this was one continuous, uninterrupted sequence of events. The majority gets off the track by focusing on how many different ways Smith might have violated the law after the police arrived at the scene. It does not matter. What matters is that Smith’s actions, however numerous, culminated in one arrest. He was then convicted, by guilty plea, of resisting an officer. In California, a conviction for resisting arrest establishes that the force used to effect the arrest was not excessive. People v. White,
The contrast between this case and Sanford v. Motts,
This is in sharp contrast to the present ease where the allegedly excessive force was employed while Smith was being arrested. It does not matter how many times Smith refused to take his hands out of his pockets or to step off the porch. It does not matter how many times he refused to turn around or how many times he may have flailed his arms as the police tried to handcuff him. The undisputed facts show that “there was no break,” to use the words of the Cunningham court, between Smith’s disobedience and the police response that culminated in his arrest. See Cunningham v. Gates,
This is an issue of California law, and in a case with facts very close to Smith's, the California Court of Appeal concluded that Heck barred a § 1983 suit where the plaintiff had been convicted of a § 148 violation involving multiple acts of resistance. Susag v. City of Lake Forest,
The California Court of Appeal affirmed. In doing so, the court rejected Susag’s argument that the Heck bar did not apply when it was unclear which act of acts of resistance formed the basis of the Susag’s § 148 conviction.
[Susag] contends the record in his criminal case, which is not before us, does not reflect which acts formed the basis for his conviction, and as a result he can pursue his section 1983 action for the officer’s use of pepper spray before he was ultimately subdued and placed in the patrol car. We disagree and conclude that any claim of excessive force based on discrete acts that occurred immediately preceding [Susag’s] arrest is barred by the Supreme Court’s holding in Heck v. Humphrey, [citation omitted], since a finding in his favor would necessarily imply the invalidity of his conviction under Penal Code section 148, subdivision (a).
Id. at 1409-10,
The majority argues that Smith’s conviction might have been based only on his conduct while on the porch, before any force was used; ergo, the conviction fails to establish the lawfulness of the force employed from that point on. This argument is foreclosed by Susag. In addition, under California’s continuous course of conduct rule, Smith’s conviction for resisting arrest necessarily includes all of the acts that comprise a continuous or indivisible transaction. People v. McFarland,
The continuous course of conduct rule is for the protection of criminal defendants like Smith. The rule bars the state from prosecuting a defendant again for acts that were part and parcel of the same continuous transaction. It is this rule that now prevents the State of California from charging Smith anew for the conduct occurring after he first refused to take his hands out of his pockets. And again for refusing to put his hands on his head. And again for not turning around. And again for not coming off the porch. And again for refusing to submit to handcuffing. Smith was charged and convicted of one count of resisting an officer that necessarily encompassed the entire sequence of events leading up to his arrest. If, for whatever reason, Smith wanted to waive the protection of that rule and plead guilty to one identified act, leaving himself open to possible prosecution for acts that otherwise would be dead letters, it was incumbent upon him to say so. See Susag, supra, at 1410,
To summarize: If Smith had been gratuitously sprayed with mace or bitten by the dog after he had been arrested, his conviction for resisting an officer would not have barred his § 1983 lawsuit. However, everything Smith complains of took place in the course of arresting him. The district court correctly ruled that Smith’s excessive force lawsuit was barred by Heck v. Humphrey, and for that reason, I respectfully dissent.
. The majority says that the encounter lasted "substantially longer than five minutes." I guess that depends on what "substantially longer” means. According to Smith's brief, Officer Reinbolt, the first officer to respond, started the tape recorder when he arrived at the scene. The transcript of the recording shows that the tape was turned off after Smith had been handcuffed and was having his eyes washed out with water from a garden hose. From start to finish, the recording lasted five minutes and thirteen seconds.
. It is also the rule in California that multiple acts of resistance culminating in an arrest for resisting an officer are subsumed in one California Penal Code § 148 conviction. Susag,
. Because the lawsuit is Heck-barred, it is unnecessary to reach, as the majority does, the question of whether the force used to arrest Smith was excessive or whether the use of the dog constituted deadly force. However, in the interest of the completeness of the story, it should be noted that prior to this incident, Quando's teeth had been capped and were incapable of inflicting deep puncture wounds. The bite wounds sustained by Smith were superficial and were cleaned at the scene by paramedics. Smith was taken to a hospital immediately after his arrest, before being booked into jail. He was evaluated at the hospital but required no further treatment of any sort.