Provided by James R. Touchstone Esq
In Sanders v. City of Pittsburg,[1] the Ninth Circuit Court of Appeals affirmed the dismissal of a complaint brought pursuant to 42 U.S.C. section 1983 alleging police officers used excessive force when they deployed a police dog against plaintiff. The Court concluded that the claim was barred by Heck v. Humphrey, 512 U.S. 477 (1994), because a favorable judgment on a plaintiff’s Section 1983 claim would necessarily call into question the validity of his conviction for resisting arrest under California Penal Code section 148(a)(1).
Background
In 2017, Morgan Sanders was spotted in a stolen car and fled from the police. He led police on a car chase during which he sped 25 miles over the limit, ran several stoplights, and drove on the wrong side of the freeway. When police blocked the car, Sanders fled on foot. Pittsburg Police Officer Thomas Bryan, was working with a K-9 and warned Sanders that if he continued to flee, he would “send the dog.” Sanders was eventually tackled by several officers in a gully. In the ensuing scuffle, while Sanders continued to struggle, Officer Bryan ordered the K-9 to bite Sanders’s right calf. After the bite, the officers successfully handcuffed and arrested Sanders.
Sanders was charged with, among other counts, misdemeanor resisting arrest under Penal Code section 148(a)(1). At the preliminary hearing, Officer Bryan testified that Sanders hindered efforts to arrest him by “first fleeing in the vehicle, then fleeing on foot, and then resisting officers attempting to arrest him.” The officer further testified that when he approached Sanders in the gully, “[he] could see that his legs were free, being that both Antioch cops were trying to apprehend one arm each, at which point in time [he] applied what is commonly referred to as a contact bite to the defendant’s right calf.” Several months later, Sanders pleaded no contest to all the charges against him, including the violation of Section 148(a)(1). At the plea hearing, Sanders stipulated that the factual basis for his plea “is based on the preliminary hearing transcript.”
While Sanders’s criminal case was pending, he filed an action alleging a violation of his Fourth Amendment rights under 42 U.S.C. section 1983. Specifically, he alleged Officer Bryan’s use of the police dog was excessive. Sanders also sued the other officers at the scene and the City of Pittsburg. The City and officers jointly moved to dismiss Sanders’s complaint. The District Court granted the motion, holding that Heck v. Humphrey, 512 U.S. 477 (1994), barred Sanders’s claim against Officer Bryan and that the claims against the other officers and the City failed as a result. Sanders appealed.
Discussion
The Ninth Circuit Court of Appeals explained that under Heck v. Humphrey, a Section 1983 claim must be dismissed if “a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence,” unless the conviction or sentence has already been invalidated. Heck, 512 U.S. at 487. To avoid the Heck bar on an excessive-force claim, a plaintiff must not imply an officer acted unlawfully during the events that form the basis of a resisting-arrest conviction under Penal Code section 148(a). Smith v. City of Hemet, 394 F.3d 689, 695 (9th Cir. 2005). Heck thus bars a plaintiff’s action if it would negate an element of the offense, Smith, 394 F.3d at 695, or allege facts inconsistent with the plaintiff’s conviction, Beets v. Cnty. of Los Angeles, 669 F.3d 1038, 1046 (9th Cir. 2012).
The Court of Appeals observed that Sanders was charged with resisting arrest under Section 148(a)(1), which prohibits “resist[ing], delay[ing], or obstruct[ing]” a police officer during the discharge of his duties. Under California law, a conviction under this statute requires that the defendant’s obstructive acts occur while the officer is engaging in “the lawful exercise of his duties.” Smith, 394 F.3d at 695. The Court explained that because the use of excessive force by an officer is not within the performance of the officer’s duty,[2] the “lawfulness of the officer’s conduct” is necessarily established as a result of a conviction under Section 148(a)(1). Hooper v. Cnty. of San Diego, 629 F.3d 1127, 1130 (9th Cir. 2011).
The Ninth Circuit noted that an excessive force claim cannot survive the Heck bar if that claim is predicated on allegedly unlawful actions by the officer at the same time as the plaintiff’s conduct that resulted in his Section 148(a)(1) conviction because such an allegation would undermine the validity of that conviction. The Court observed, however, that if the alleged excessive force occurred before or after the acts that form the basis of the Section 148(a) violation, even if part of one continuous transaction, the Section 1983 claim does not “necessarily imply the invalidity of [a] criminal conviction under [Section] 148(a)(1).” Smith, 394 F.3d at 696; Hooper, 629 F.3d at 1134.
Sanders argued that his claim was not Heck-barred because his conviction could have been based on his flight from the officers prior to his arrest in the gully; thus, success on his Section 1983 claim would leave the Section 148(a)(1) conviction undisturbed because his act of resistance occurred before the dog bite and arrest. In this argument, Sanders relied largely on Hooper, which held that resisting arrest “does not lose its character as a violation of [Section] 148(a)(1) if, at some other time during that same ‘continuous transaction,’ the officer uses excessive force or otherwise acts unlawfully.” 629 F.3d at 1132 (quoting Yount v. City of Sacramento, 43 Cal. 4th 885, 901 (2008)).
The Ninth Circuit explained that in that case, Hooper had engaged in multiple obstructive acts in one continuous transaction. Hooper had first jerked her hand away from an officer trying to place her under arrest. She and the officer then struggled on the ground as the officer tried to get Hooper’s hands behind her back. The next event was disputed, but Hooper claimed that, after she stopped resisting, the officer directed his K-9 to bite her on the head. Thus, in that case there was a clear delineation between lawful and unlawful police action. Hooper pled guilty to resisting arrest under Section 148(a)(1). She later filed a Section 1983 excessive force claim based on the dog bite. Because the record was silent on which act or acts formed the basis of her conviction, the Ninth Circuit there had accepted Hooper’s contention that she had stopped resisting by the time of the dog bite for summary judgment purposes. The Hooper Court could consequently divide Hooper’s arrest into separate factual contexts: the lawful police action during the initial arrest attempt and struggle on the ground, and the unlawful police action when the officer ordered the dog bite.[3] The Court allowed Hooper’s excessive force claim to proceed because Heck is no impediment “when the conviction and the [Section] 1983 claim are based on different actions during ‘one continuous transaction.’”[4] Hooper’s Section 1983 action could separately target one action—the allegedly unlawful dog bite—without disturbing the Section 148(a)(1) conviction.
The Ninth Circuit here explained that Hooper therefore only held that Heck presents no bar to an excessive force claim when an officer’s allegedly unlawful action can be separated from the lawful actions that formed the basis of the Section 148(a)(1) conviction, even if they occurred during one continuous transaction. In the instant case, the Ninth Circuit observed that as part of his guilty plea, Sanders had stipulated that the factual basis for his conviction encompassed the three instances of resistance identified in the preliminary hearing transcript. Specifically, Officer Bryan testified that he ordered his dog to bite Sanders’s right calf as he observed other officers struggling to apprehend Sanders’s arms in the gully. Thus, unlike Hooper, the dog bite on Sanders was part of the actions that formed the basis of Sanders’s conviction. The Court stated that there was no way to carve out the dog bite from the Section 148(a)(1) conviction without “necessarily imply[ing]” that the conviction was invalid.[5]
Moreover, although Hooper held that a continuous transaction can be broken into “different actions” for purposes of a Section 1983 action, Hooper did not suggest the factual basis of a Section 148(a)(1) conviction could be parsed out to avoid the Heck bar. The Ninth Circuit noted that the California Supreme Court in Yount had expressly rejected this argument. In Yount, a Section 1983 plaintiff attempted to avoid Heck by arguing that his Section 148(a)(1) conviction could stand on any of his multiple acts of resistance, and “so long as one act of resistance remains undisturbed to support the criminal conviction, it is immaterial that success on the section 1983 claim might be inconsistent with other facts that supported the criminal conviction.” Yount, 43 Cal. 4th at 896. However, the Yount Court declared “Yount’s conviction established his culpability during the entire episode with the four officers, and any civil rights claim that is inconsistent with even a portion of that conviction is barred because it would necessarily imply the invalidity of that part of the conviction.” Id. (emphasis added). Yount accordingly found that the factual basis of a Section 148(a)(1) conviction encompassing multiple acts is indivisible for purposes of avoiding a Heck bar. Here, the Ninth Circuit followed the California Supreme Court’s interpretation of Section 148(a)(1) and adopted its approach.
The Court found that the factual basis for Sanders’s plea was based on multiple acts of resisting arrest, including his struggle with officers when the K-9 bit him. The Ninth Circuit Court of Appeals held that Sanders could not stipulate to the lawfulness of the dog bite as part of his Section 148(a)(1) guilty plea and then use the same act to allege an excessive force claim under Section 1983. Success on such a claim would “necessarily imply” that his conviction was invalid. Heck, 512 U.S. at 487. The Ninth Circuit Court of Appeals concluded that Sanders’s claim against Officer Bryan was, therefore, barred under Heck, and accordingly affirmed the dismissal of Sanders’s claims.
HOW THIS AFFECTS YOUR AGENCY
Agencies will observe that an excessive force claim cannot survive the Heck bar if that claim is predicated on allegedly unlawful actions by the officer at the same time as the plaintiff’s conduct that resulted in his Section 148(a)(1) conviction. However, if the alleged excessive force occurred before or after the acts that form the basis of the Section 148(a) violation, even if part of one continuous transaction, the Section 1983 claim does not necessarily imply the invalidity of a Section 148(a)(1) conviction. Yount concluded that the factual basis of a Section 148(a)(1) conviction encompassing multiple acts is indivisible for purposes of avoiding a Heck bar.
Here, the Court adopted the California Supreme Court’s interpretation of Section 148(a) as a basis for its decision, noting: “Hooper held that a continuous transaction can be broken into “different actions” for purposes of a § 1983 action, it did not suggest we may slice up the factual basis of a § 148(a)(1) conviction to avoid the Heck bar.” Critical to the Court’s determination in this case was that the factual basis for the plea was properly documented in the record. Specifically, the plea was based upon the preliminary hearing transcript in the underlying proceedings. This occurrence is important to note. A full factual basis supporting the plea will be of significant help in resolving cases properly under the Heck doctrine.
As always, if you want to discuss any of this in greater detail, do not hesitate to contact James Touchstone at jrt@jones-mayer.com or by telephone at (714) 446-1400.
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[1] 2021 U.S. App. LEXIS 28822 (9th Cir. Sep. 23, 2021).
[2] Smith, 394 F.3d at 695.
[3] Hooper, 629 F.3d at 1132-33.
[4] Id. at 1134.
[5] Heck, 512 U.S. at 487.
