Provided by James R. Touchstone
In a 2-1 opinion, the Ninth Circuit Court of Appeals, in Lemos v. Cty. of Sonoma,[1] affirmed a District Court’s holding that a 42 U.S.C. section 1983 claim for excessive force brought by a plaintiff convicted under Penal Code section 148(a)(1) was barred by Heck v. Humphrey. In reaching its conclusion, the Court found that the jury verdict established that the plaintiff had resisted and that the conduct of the deputy involved was lawful throughout the encounter.
Background
In June 2015, County of Sonoma Deputy Marcus Holton, after observing a pickup truck blocking a lane of traffic and hearing screaming, stopped at the home of Gabbi Lemos to investigate what he believed was a domestic dispute involving Karli Labruzzi and Darien Balestrini. After speaking with Balestrini outside of the vehicle, Holton walked around to the passenger side where he encountered Labruzzi, Gabbi Lemos, Lemos’s mother, and Lemos’s sister. Holton asked Lemos, her mother, and sister to step away from the vehicle so that Holton could speak with Labruzzi.
While speaking with Labruzzi, Holton attempted to open the truck door. Lemos then inserted herself between Holton and the open truck door while pointing her finger at Holton and yelling that Holton was not allowed to go in the truck. Holton then pushed Lemos away from him with his right hand. Holton closed the truck door and repeatedly ordered Lemos, her mother and her sister to calm down. After they did not comply, Holton requested backup.
After backup arrived, Lemos and others continued to be uncooperative. Holton then separated Lemos’s mother from the group to explain the investigation, but Lemos’s mother returned to the group and continued to be uncooperative. Lemos’s mother told Lemos to go into the house and Lemos turned to walk toward the house. As Lemos walked past Holton, Holton told her, “Hey, come here. Hey.” Lemos did not respond and continued to walk away. Holton then ran up behind Lemos, grabbed her, and brought her to the ground.
In November 2015, Lemos filed a complaint in federal District Court asserting an excessive force claim under 42 U.S.C. section 1983 claim, alleging Holton used excessive force in stopping her from fleeing as he attempted to arrest her. In April 2016, the District Court stayed the federal action during pendency of state criminal proceedings, in which Lemos had been charged with resisting, obstructing, or delaying a peace officer in violation of California Penal Code section 148(a)(1).
In August 2016, a jury was instructed that Lemos could be found guilty of violating state law under Section 148(a)(1). The jury was instructed to find each of the following elements beyond a reasonable doubt: (1) “Deputy Marcus Holton was a peace officer lawfully performing or attempting to perform his duties as a peace officer,” (2) “[Lemos] willfully resisted, obstructed or delayed Deputy Marcus Holton in the performance or attempted performance of those duties,” and (3) “[w]hen [Lemos] acted, she knew, or reasonably should have known, that Deputy Marcus Holton was a peace officer performing or attempting to perform his duties.”
As to the first element, the jury was instructed that “[a] peace officer is not lawfully performing his or her duties if he or she is unlawfully arresting or detaining someone or using unreasonable or excessive force in his or her duties.” For the second element, the jury was instructed that Lemos could be found guilty based on four theories of liability: Lemos (1) made physical contact with Holton as he was trying to open the truck door; (2) placed herself between Holton and Ms. Labruzzi; (3) blocked Holton from opening the truck door and seeing or speaking to Ms. Labruzzi; or (4) pulled away from Holton when Holton attempted to restrain her.
The jury convicted Lemos for violating Section 148(a)(1) when she resisted, delayed, or obstructed Deputy Holton while he was conducting his duties as an officer.
In May 2018, the District Court lifted the stay. The District Court granted County of Sonoma, Sheriff Steve Freitas, and Holton’s motion for summary judgment. The District Court held that Lemos’s 42 U.S.C. Section 1983 excessive force claim was barred by Heck v. Humphrey, 512 U.S. 477 (1994). Lemos appealed.
Discussion
The Ninth Circuit Court of Appeals affirmed. The Court explained that under Heck, “[w]hen a plaintiff who has been convicted of a crime under state law seeks damages in a [Section] 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.’” Hooper v. Cnty. of San Diego, 629 F.3d 1127, 1130 (9th Cir. 2011) (quoting Heck, 512 U.S. at 487). If it would, the civil action is barred. The Court observed that under Heck, “if a criminal conviction arising out of the same facts stands and is fundamentally inconsistent with the unlawful behavior for which [S]ection 1983 damages are sought, the 1983 action must be dismissed.”[2] However, a plaintiff’s allegation of excessive force by a police officer is not barred by Heck if the officer’s conduct is “distinct temporally or spatially from the factual basis for the [plaintiff’s] conviction.” Beets v. Cnty. of Los Angeles, 669 F.3d 1038, 1042 (9th Cir. 2012) (citing Smith v. City of Hemet, 394 F.3d 689, 699 (9th Cir.2005) (en banc)).
On appeal, Lemon argued that jurors in the criminal trial did not indicate on the verdict form whether the jury found Lemos guilty of one or all four of the theories of liability given in the jury instructions. Lemos contended that if the jury did not find her guilty of pulling away from Holton when he attempted to restrain her (the fourth theory of liability), then her conviction for Section 148(a)(1) violations and her 42 U.S.C. section 1983 claim were not necessarily based on the same transaction. Lemos argued that the District Court therefore erred in ruling that the Section 1983 claim was barred by Heck.
The Court noted that in Beets, the Ninth Circuit had rejected a similar attempt to separate a deputy’s action from the criminal activity underlying the Section 1983 plaintiffs’ excessive-force claim. The Section 1983 plaintiffs in Beets, as Lemos did here, argued that there were several possible factual bases for the relevant criminal conviction there. Therefore, they argued, the conviction was not necessarily based on the same factual basis as the alleged civil rights violations. In Beets, as here, the jury instructions in the criminal case required that to convict the defendant, the jury had to find she acted willfully against a police officer who was “lawfully performing his duties as a peace officer,” and that the officer was not “using unreasonable or excessive force in his or her duties.” Beets at 1045. Beets reaffirmed and, relying on Smith, concluded that the jury necessarily determined that during the entire course of the deputy’s conduct, he “acted within the scope of his duties and did not use excessive force.” Beets, 669 F.3d at 1045. Because the jury’s verdict in the criminal case necessarily found that the deputy did not use excessive force at any time during the course of the convicted defendant’s conduct, a verdict in the plaintiffs’ favor on their Section 1983 excessive-force claim would have necessarily implied that the underlying criminal conviction was invalid. Therefore, the Beets plaintiff’s claim was barred by Heck.
The Ninth Circuit noted that the Smith Court had distinguished a jury verdict – as in Beets and in the case here – from a guilty plea, stating that “where a [Section] 1983 plaintiff has pled guilty or entered a plea of nolo contendere . . . it is not necessarily the case that the factual basis for his conviction included the whole course of his conduct.”[3] Beets reaffirmed this distinction.[4] The Court here clarified, however, that the defining factor of Heck’s application is not whether the accused wishes to proceed to trial or enter a guilty plea.[5] Instead, the relevant inquiry in applying Heck is whether the record contains factual circumstances that supported the underlying conviction under Section 148(a)(1), not whether the conviction was obtained by a jury verdict or a guilty plea.[6] The Ninth Circuit also stated that Heck would not necessarily bar a Section 1983 claim for excessive force when the defendant enters into a plea agreement and the conviction and the Section 1983 claim are based on different actions taken during one continuous[7] transaction. See Hooper v. City of San Diego, 629 F.3d 1127, 1134 (9th Cir. 2011) (excessive force used after an arrest is made does not destroy the lawfulness of the arrest). The Ninth Circuit stated that as established in Yount v. City of Sacramento,[8] so long as evidentiary support for the Section 148(a)(1) conviction exists in the record, plea agreements, like guilty jury verdicts, may establish the criminal defendant’s resistance toward the officers and the officer’s lawful conduct in response.
The Ninth Circuit further held that, based on the jury instructions and evidence of record before it, the jury verdict established that appellant resisted, and the deputy’s conduct was lawful throughout the encounter. The Court explained that the jury instructions required that the jury find that Deputy Holton was “lawfully performing or attempting to perform his duties as a peace officer,” and the instructions explained that an officer “is not lawfully performing his or her duties if he or she is unlawfully arresting or detaining someone or using unreasonable or excessive force in his or her duties.”
The Court also noted that for the Section 148(a)(1) conviction to be valid, a criminal defendant must have “resist[ed], delay[ed], or obstruct[ed]” a police officer in the lawful exercise of his duties. Thus, the lawfulness of an officer’s conduct was an essential element of the offense of resisting, delaying, or obstructing a peace officer. The Court maintained that the jury unanimously found that Holton acted lawfully throughout the continuous chain of events, even when he placed Lemos under arrest.
The Ninth Circuit held that the record compelled a finding that the jury determined that Deputy Holton acted within the scope of his duties without the use of excessive force, and that Lemos sought to demonstrate that the same conduct constituted excessive force. The Court of Appeals stated that Lemos’s jury considered all parties’ evidence of relevant conduct, including the officers’ body camera footage which was part of the record. Here, as in Beets, the jury was instructed that “[a] peace officer is not lawfully performing his or her duties if he or she is unlawfully arresting or detaining someone or using unreasonable or excessive force in his or her duties.” Moreover, the jury was told that it could convict Lemos only if “Deputy Marcus Holton was a peace officer lawfully performing or attempting to perform his duties as a peace officer.”
The Ninth Circuit therefore concluded that the District Court appropriately considered summary disposition of remaining legal issues under Heck and its progeny. In reliance, the Court of Appeals found that Smith and Beets controlled application of the Heck bar as found by the District Court and affirmed.
Judge Berzon “emphatically” dissented, expressing that the majority opinion was “likely to encourage the very sort of police overreaction to minor criminal behavior that has led to public outcry and calls for reform in recent years.” She wrote that the jury was instructed that there were four possible factual bases on which it could convict appellant, and three of the factual bases pertained to acts not at issue in Lemos’s Section 1983 claim. Success on her Section 1983 claim therefore did not necessarily imply that her conviction was invalid. The dissent maintained that in concluding that Heck barred Lemos’s excessive force claim, the majority fundamentally erred.
HOW THIS AFFECTS YOUR AGENCY
Agencies will observe that, as the majority and dissenting opinions agreed, a valid Penal Code section 148(a)(1) conviction does not necessarily implicate the lawfulness of the officer’s conduct throughout the entirety of his encounter with the arrestee. The majority explained that a Section 148(a)(1) conviction is valid only when “‘the officer was acting lawfully at the time the offense against the officer was committed.’ People v. Williams, 26 Cal. App. 5th 71, 82 (2018) (emphasis added); Smith, 394 F.3d at 699. Accordingly, if a use of force occurs after a suspect has been arrested for a violation of Section 148, Heck might not come into play. It is important, therefore, for officers to be aware of this distinction when drafting reports and testifying on the issue to note that, if the facts of the encounter support the argument, the arrest was for the totality of the suspect’s conduct during the encounter with law enforcement.
As always, if you wish to discuss this matter in greater detail, please feel free to contact Jim Touchstone at (714) 446–1400, or via email at jrt@jones-mayer.com.
Information on www.jones-mayer.com is for general use and is not legal advice. The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute, an attorney-client-relationship.
[1] 2021 U.S. App. LEXIS 21108 (9th Cir. July 16, 2021).
[2] Smithart v. Towery, 79 F.3d 951, 952 (9th Cir.1996) (per curiam).
[3] 394 F.3d at 699 n.5.
[4] 669 F.3d at 1045.
[5] The Court majority stated that the dissent “grossly mischaracterized” its analysis as supporting the proposition that the majority opinion provided an open invitation for police overreaction, provided that the prosecutor secures a guilty jury verdict as opposed to a guilty plea.
[6] 394 F.3d at 699 n.5.
[7] The Court observed that Lemos’s resistance was “clearly viewed by her trial jury as continuous throughout the entire transaction of events leading up to and including all subsequent physical contacts with the arresting deputy.”
[8] 43 Cal. 4th 885, 891 (2008).
