Thore v. Howe , 466 F.3d 173 ( 2006 )

United States Court of Appeals
For the First Circuit
No. 06-1627
CHARLES THORE,
Plaintiff, Appellant,
v.
JEFFREY HOWE; DANIEL RICHARDS; DAVID NAPOLITANO; MICHAEL J.
LYVER; PETER A. KYMALAINEN; LEROY M. JACKSON; PHILLIP J. KEARNS,
JR.; JOHN M. KELLEY; MATTHEW DIBARA; GLEN FOSSA,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nancy Gertner, U.S. District Judge]
Before
Boudin, Chief Judge,
Lynch, Circuit Judge,
and Schwarzer,* Senior District Judge.
Paul L. Carlucci for plaintiff-appellant.
Gregg J. Corbo, with whom Joseph L. Tehan, Jr. and Kopelman
and Paige, P.C. were on brief, for defendant-appellee Jeffrey Howe.
Joseph P. Kittredge, with whom Law Offices of Timothy M. Burke
was on brief, for defendants-appellees Daniel Richards, David
Napolitano, and Michael J. Lyver.
Michael J. Kerrigan, with whom Edward T. Hinchey and Sloane &
Walsh, LLP were on brief, for defendants-appellees Peter A.
Kymalainen, Leroy M. Jackson, Phillip J. Kearns, Jr., John M.
Kelley, Matthew Dibara, and Glenn Fossa.
*
Of the Northern District of California, sitting by
designation.
October 27, 2006
LYNCH, Circuit Judge. This suit under 42 U.S.C. § 1983asserting excessive force and conspiracy claims raises two
interesting issues not directly addressed before by this circuit.
The first is whether the Supreme Court's decision in Heck v.
Humphrey, 512 U.S. 477, 486-87 (1994), bars the civil rights claim
asserting excessive force brought by plaintiff Thore, who earlier
pled guilty to state criminal charges, arising from the same event,
of assault with a dangerous weapon on police officers. The second
issue is whether Thore is judicially estopped from asserting facts
inconsistent with the facts to which Thore agreed during the plea
colloquy. Thore admits that if he is judicially estopped from
asserting facts inconsistent with the plea colloquy, then his
excessive force claim cannot succeed.
On February 8, 2002, Charles Thore pled guilty in state
court to several charges, including three counts of assault and
battery with a dangerous weapon (to wit, a car) on three police
officers, one count of assault and battery, one count of operating
a motor vehicle under the influence of alcohol, one count of
operating after suspension, and one count of operating to endanger.
The charges stemmed from his drunken driving encounter with police
officers on October 17, 2001, during which Thore was shot in the
neck by Fitchburg police officer Jeffrey Howe. Six other Fitchburg
police officers and three Massachusetts state police detectives
also were involved.
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During his plea colloquy, Thore, who was represented by
counsel, said that he agreed with an account of the facts stated by
the prosecution. Thore knowingly and voluntarily pled guilty. As
a result of his plea bargain, Thore received the benefit of a joint
sentencing recommendation of a four-year sentence of imprisonment,
which was accepted by the court. He avoided a potential ten-to-
twelve-year sentence, and had the benefit of dismissal of other
charges.
In August 2003, Thore brought an action in state superior
court under 42 U.S.C. § 1983 against the officers; the case was
removed to federal court. His original complaint alleged that
Officer Howe had used excessive force in shooting him and had
engaged in assault and battery. After discovery, he amended his
complaint in November 2004, adding claims that six Fitchburg police
officers, three Massachusetts State Police detectives (who
investigated Officer Howe's use of force), and Officer Howe had all
conspired to cover up the circumstances of the shooting and had
maliciously abused process.
The district court entered summary judgment for all
defendants in a thoughtful opinion. The court held that the
doctrine of judicial estoppel barred Thore from asserting facts
inconsistent with the facts to which he admitted during his plea
colloquy in the Worcester Superior Court. As a result, the court
reasoned, Thore's § 1983 excessive force and state law assault and
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battery claims failed to overcome Officer Howe's qualified
immunity. The district court also held that Heck v. Humphrey
barred assertion of the § 1983 malicious abuse of process and
conspiracy claims against all defendants and that, in any event, no
claim was stated under § 1983 as to either malicious abuse of
process or conspiracy. The court did not reach the Heck issue as
to the excessive force claim.
Thore appeals, arguing that judicial estoppel should not
apply to bar him from asserting inconsistent facts because he now
has evidence that some of the facts asserted at the plea colloquy
are not true. He also argues that Heck v. Humphrey does not bar
him from asserting any of his claims. He concedes that if judicial
estoppel applies, then the district court was correct in entering
judgment for Officer Howe on the excessive force claim. He does
not appeal the dismissal of the abuse of process claim.
I.
Thore pled guilty to three counts of assault and battery
with a deadly weapon (a car), see Mass. Gen. Laws ch. 265 § 15A(b),
as well as other crimes. Under Massachusetts law, assault and
battery may be proven using two alternate theories. Under the
first, an assault and battery is "the intentional and unjustified
use of force upon the person of another, however slight."
Commonwealth v. Burno, 487 N.E. 2d 1366, 1368-69 (Mass. 1986)
(quoting Commonwealth v. McCan, 178 N.E. 633, 634 (Mass. 1931))
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(internal quotation marks omitted). Under the second theory,
assault and battery is the "intentional commission of a wanton or
reckless act (something more than gross negligence) causing
physical or bodily injury to another." Id. at 1369. In
Massachusetts, assault and battery by means of a dangerous weapon
"is a general intent crime, [and] there is no requirement that the
Commonwealth must prove the defendant had a specific intent to
injure the victim. To find the requisite intent, however, the jury
must find beyond a reasonable doubt that the touching did not
happen accidentally." Commonwealth v. Ford, 677 N.E. 2d 1149, 1152
(Mass. 1997) (citations omitted).
We start with the facts the prosecution recited and to
which Thore agreed at his plea colloquy in state court:
On October 17th, 2001, at approximately 7:20
p.m., Sergeant Glen Fossa of the Fitchburg
police department while off duty observed a
blue Volkswag[e]n operating erratically on
John Fitch Highway in Fitchburg,
Massachusetts. The John Fitch Highway is a
public way in the city of Fitchburg. The blue
Volkswag[e]n almost struck the passenger side
of the vehicle occupied by Sergeant Fossa.
Both vehicles stopped. The operator of the
blue Volkswag[e]n, Charles Thore, the
defendant, started to get out of the vehicle
he was operating and began yelling at Sergeant
Fossa. Sergeant Fossa observed that Mr. Thore
appeared to be having a confrontation with a
female passenger in his vehicle. The female
passenger was later identified as Jessilyn
Chabot. Mr. Thore got back in the blue
Volkswag[e]n and began to drive away wildly,
passing cars in the turn-only lanes of the
John Fitch Highway. Sergeant Fossa reported
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the blue Volkswag[e]n to the Fitchburg police
department.
Sergeant John Kell[e]y and Officer
Matthew Dibara responded to the John Fitch
Highway. Sergeant Fossa pointed out the blue
Volkswag[e]n to the responding Fitchburg
officers. Sergeant Fossa observed Mr. Thore
holding Miss Chabot in a headlock, and he
appeared to be hitting and/or struggling with
Miss Chabot. Miss Chabot reported that Mr.
Thore was choking her and that he slapped her
in the face twice because she was breaking up
with him. Miss Chabot was pregnant with Mr.
Thore's child at the time.
Officer Dibara approached the blue
Volkswag[e]n and instructed Mr. Thore to
please turn off the engine and step from the
vehicle. Mr. Thore did not comply and
eventually placed the vehicle in reverse and
accelerated. Officer Dibara reached into an
open window and attempted to stop the blue
Volkswag[e]n out of concern for the safety of
Miss Chabot. Officer Dibara held onto Mr.
Thore as he was dragged somewhat and was
forced to run at times to keep pace with the
vehicle. Officer Dibara disengaged after
about 25 feet, fearing for his life. At times
throughout the incident the blue Volkswag[e]n
operated by Mr. Thore came into contact with
Officer Dibara.
Mr. Thore attempted to flee through the
parking lot but was headed off by Sergeant
Kell[e]y and Fitchburg police officer Jeffrey
Howe, who were operating separate police
cruisers. Mr. Thore began to strike both
cruisers operated by Sergeant Kell[e]y and
Officer Howe with the blue Volkswag[e]n.
At one point Officer Dibara ordered Mr.
Thore to stop at gunpoint. Mr. Thore looked
at Officer Dibara and stated, "Fucking shoot
me." Officer Dibara re-holstered his weapon
and attempted to pull Mr. Thore from the
vehicle. Mr. Thore again accelerated, broke
free, and struck Officer Howe's cruiser on the
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driver's door, pushing Officer Howe and his
cruiser into a tractor trailer truck and
nearly striking Officer Dibara. Officer
Dibara heard Mr. Thore's vehicle revving as
Mr. Thore was apparently attempting to move
the blue Volkswag[e]n in an unknown direction.
Fearing for his life, and that of Officer
Dibara[], Officer Howe fired three shots from
his firearm at this point. One round struck
Mr. Thore in the neck.
This is a matter of record; there is no disagreement that Thore
agreed to these facts.
Thore argues that the facts to which he admitted are not
true as to whether the officers were endangered or in fear for
their lives. He argues he can prove this through the testimony of
a disinterested third-party witness, one Jon Laro, the truck driver
under whose truck Officer Howe's cruiser was pushed. Laro, at
deposition in this case, gave a markedly different version of the
events that contradicted those (a) recited in the plea colloquy and
(b) contained in the two statements the police recorded on
interviewing Laro, which Laro signed shortly after the event (and
which fully supported the facts recited at the colloquy). At
deposition, Laro said that Thore's car, a blue Volkswagen, had not
struck the police cars, but that the police cars had repeatedly
struck Thore's car and had him boxed in so his car could not move.
The witness stated the officers were never placed in danger by
Thore and that Officer Howe had no reason to shoot Thore:
They really had him stopped, pinned down when
they had him up against that building to be
honest with you. To me, I don't know, maybe
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if I was a police officer I think I would have
just shot the guy's tires. He ain't going
nowhere, you know, I don't know. I didn't
really feel there was a need to shoot the kid
let's put it that way. I know the kid wasn't
right but they weren't right and two wrongs
don't make a right and that's what happened
here.
By contrast, the typed notes of Detective Kymalainen's
interview with Laro on October 17, 2001 present a different picture
of what Laro saw:
Q. [Police] After the car hit cruiser five
what did it do?
A. [Laro] The car's engine revved and he went
flying in reverse away from the police car, he
turned hard right in reverse and backed into a
parked car about fifteen feet maybe. He was
out of control backing up, I thought for sure
he was going to hit one of the cops that was
near his car.
Q. Where were the police officers?
A. I think there were two officers, there may
have been more, but I remember they ran past
my tractor towards the blue car after it
struck cruiser five. There were a couple of
seconds were [sic] the car was stopped after
it hit car five. The cops ran to the car, I
saw them with their guns out, when they got
near the car they pointed their guns at him
and yelled at the guy to get out of the car.
Those officers yelled at the man to get out,
they were very loud. I heard the officer
shout several times to get out of the car.
The guy didn't get out, he just jammed it in
reverse and went backwards, it was lucky
nobody didn't get hit because he almost ran
them over.
. . .
Q. Prior to the shots what did you think the
operator of the blue car was going to do after
it struck the parked car?
A. It was going to try and get away again,
there was nothing stopping this guy, he was
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like a lunatic. I really thought the guy was
going to run those officers over.
As noted, Laro signed the statement on or about October 17, 2001.
This typed interview is entirely consistent with handwritten
interview notes, which Laro also signed and initialed. Laro
testified he does recall being interviewed, but denied saying a
number of things that are recorded in the notes. Thore maintains
the police forged the notes as part of a cover up.
Thore argues that until Laro's deposition, he had simply
relied on the reports the police had given him as to Laro's account
of the events and that this induced him to plead guilty. He says
that had he known Laro's true account, he would not have pled
guilty or admitted to certain facts. He points out that he has no
memory of events after being shot. He argues there was a
conspiracy by the Fitchburg and state police to misstate the
evidence of the third-party witness, and thus create, after the
fact, a justification for the shooting.
Thore also argues he should be permitted to prove that
the police knew that he was not armed (because his girlfriend told
them), that his car was boxed in by the cruisers and so his own car
could not move or harm the officers, and that the officers were
never endangered. Based on those facts, he argues that under the
standards of Brosseau v. Haugen, 543 U.S. 194 (2004), and Graham v.
Connor, 490 U.S. 386 (1989), it was objectively unreasonable for an
officer to shoot him.
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II.
The order appealed from grants summary judgment to
defendants. Our review of entry of summary judgment is de novo.
See Nelson v. Kline, 242 F.3d 33, 34 (1st Cir. 2001). We note,
however, that "summary judgment" is a bit of a misnomer here. At
issue are several matters which are committed to the district
court, not a jury, in the first instance. Whether the case states
a viable § 1983 claim in the first place and whether the case
states a viable § 1983 claim in light of Heck are issues of law for
the court. Similarly, whether to apply the judicial estoppel
doctrine is also an issue for the court, not the jury, to decide.
See New Hampshire v. Maine, 532 U.S. 742, 750 (2001) ("[J]udicial
estoppel 'is an equitable doctrine invoked by a court at its
discretion.'" (quoting Russell v. Rolfs, 893 F.2d 1033, 1037 (9th
Cir. 1990))). As to the application of these doctrines, there is
no dispute that if plaintiff fails to state a claim, if Heck bars
the claim, or if judicial estoppel binds Thore to the facts stated
at the plea colloquy, then the case must be dismissed.
A. The Conspiracy Claim
The district court correctly dismissed the conspiracy
count for failure to state a claim. Thore alleged in his amended
complaint that Officer Howe, six other Fitchburg police officers,
and three Massachusetts state police detectives conspired against
him "to justify the illegal shooting . . . by Officer Jeffrey
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Howe," thereby violating his "constitutional right to be free from
the use of a conspiracy by persons acting under color of law."
However, there is no such constitutional right, nor is there any
federal law guaranteeing freedom from conspiracy.
It is important to note that "[w]hile conspiracies may be
actionable under section 1983, it is necessary that there have
been, besides the agreement [among conspirators], an actual
deprivation of a right secured by the Constitution and laws."
Landrigan v. City of Warwick, 628 F.2d 736, 742 (1st Cir. 1980);
see also Santiago v. Fenton, 891 F.2d 373, 389 (1st Cir. 1989);
Earle v. Benoit, 850 F.2d 836, 844 (1st Cir. 1988). Thus, an
allegation of conspiracy to deprive someone of, say, his
constitutional right to due process states a claim under § 1983,
cf. Slotnick v. Staviskey, 560 F.2d 31, 34 (1st Cir. 1977), but an
allegation of conspiracy to justify an illegal shooting does not.
Thore failed to identify in his amended complaint a
federally protected right of which he was deprived by the alleged
conspiracy. He acknowledges as much on appeal by now attempting to
cast his claim as a conspiracy to deprive him of his § 1983 right
of action for excessive force. In Landrigan, we "assume[d],
without deciding, that [a claim alleging deprivation of a § 1983
right of action], sufficiently advanced, could have amounted to an
actionable deprivation of federally protected rights." 628 F.2d at
742. Here, however, Thore's claim is not "sufficiently advanced"
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to merit our consideration of this issue. Thore has conceded that
his "claim is not precisely pled"; we further find that, contrary
to plaintiff's contention, the gravamen of his claim does not make
out an alleged deprivation of his § 1983 right of action. Thore
merely asserted that the defendants, under color of law, conspired
to justify the shooting, and that this violated his constitutional
rights. Under these circumstances, we decline to "rewrite
[Thore's] complaint by inserting legal claims not mentioned
therein." Pujol v. Shearson/Am. Express, Inc., 829 F.2d 1201,
1205-06 (1st Cir. 1987) (rejecting plaintiffs' invitation to
construe their complaint as containing elements of certain RICO
violations when it did not state so directly).
B. The Excessive Force Claim
Defendant Howe argues that Heck v. Humphrey bars Thore's
§ 1983 claim for excessive force. He also argues that the doctrine
of judicial estoppel justifies the district court's entry of
summary judgment in his favor.
1. The Heck v. Humphrey Rule
In Heck v. Humphrey, the Supreme Court held that where a
§ 1983 suit for damages would "necessarily imply" the invalidity of
an inmate's conviction, or "necessarily imply" the invalidity of
the length of any inmate's sentence, such a claim is not cognizable
under § 1983 unless and until the inmate obtains favorable
resolution of a challenge to his conviction. Heck, 512 U.S. at
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487. As a result, the district court must consider the
relationship between the § 1983 claim and the conviction, including
asking whether the plaintiff could prevail only by "negat[ing] an
element of the offense of which he [was] convicted." Id. at 486
n.6. Only if a "judgment in favor of the plaintiff would
necessarily imply the invalidity of the conviction or sentence"
does the court go on to ask whether that conviction or sentence has
in fact been invalidated. Id. at 487.
Thore argues that his claim does not necessarily imply
the invalidity of his conviction. The Supreme Court has, in many
civil rights actions, including in Heck, held that a § 1983 claim
is stated where there is no necessary implication of the invalidity
of the conviction. See id. at 487 n.7; see also Hill v. McDonough,
126 S. Ct. 2096, 2100 (2006); Wilkinson v. Dotson, 544 U.S. 74, 82
(2005); Nelson v. Campbell, 541 U.S. 637, 643 (2004); Muhammad v.
Close, 540 U.S. 749, 753, 755 (2004).
Similarly, in Figueroa v. Rivera, 147 F.3d 77 (1st Cir.
1998), this court held that Heck did not bar a prisoner's § 1983
claim arising from alleged indifference to an inmate's medical
needs, but did bar a § 1983 claim for wrongful conviction and
imprisonment. Id. at 82. Notably, Figueroa also held that there
are no equitable exceptions to the Heck rule. Id. at 80-81.
A § 1983 excessive force claim brought against a police
officer that arises out of the officer's use of force during an
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arrest does not necessarily call into question the validity of an
underlying state conviction and so is not barred by Heck. See,
e.g., VanGilder v. Baker, 435 F.3d 689, 692 (7th Cir. 2006).
Even the fact that defendant was convicted of assault on
a police officer does not, under Heck, as a matter of law
necessarily bar a § 1983 claim of excessive force. See Smithart v.
Towery, 79 F.3d 951, 952-53 (9th Cir. 1996); see also Ballard v.
Burton, 444 F.3d 391, 399-400 (5th Cir. 2006) (holding that a state
conviction for simple assault did not necessarily imply that the
defendant did not use excessive force).
In this case Thore asserts two theories. The first is
that he was not guilty of assault at all, and so Officer Howe's use
of force was excessive. That theory is plainly barred by Heck.
The more modest second theory is that his excessive force
claim need not impugn his convictions for assault and battery with
a dangerous weapon in order to establish that Officer Howe used
excessive force. Thore says that even if his car had previously
hit the cruisers and brushed Officer Dibara's body, by the time of
the shooting, Thore was stationary in a car, boxed in with nowhere
to go, and posed no threat to the officers, who had been told that
he had no gun.
Just as it is true that a § 1983 excessive force claim
after an assault conviction is not necessarily barred by Heck, it
is also true that it is not necessarily free from Heck. The
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excessive force claim and the conviction may be so interrelated
factually as to bar the § 1983 claim. See, e.g., Cunningham v.
Gates, 312 F.3d 1148, 1154-55 (9th Cir. 2002).
Officer Howe argues, relying on Cunningham, that this is
such a case: that Thore's third conviction for assault and battery
with a dangerous weapon was based on his refusal to obey commands
to get out of his car, and on his gunning his engine to start to
get away. In doing so, he endangered the two officers: Officer
Dibara on foot and Officer Howe in his cruiser. We cannot tell
from the record before us whether this is so.
While we conclude that Heck does not automatically bar
consideration of an excessive force claim by an individual who has
been convicted of assault, the record before us does not permit a
determination of the requisite relatedness. Accordingly, we move
on to consider whether Thore is barred by judicial estoppel from
denying the facts he admitted in the plea colloquy.
2. Judicial Estoppel
We provide some background on the judicial estoppel
doctrine. Before the Supreme Court addressed the use of judicial
estoppel doctrine in federal courts, this court had permitted
invocation of the doctrine. See, e.g., Patriot Cinemas, Inc. v.
Gen. Cinema Corp., 834 F.2d 208, 215 (1st Cir. 1987) (binding party
to its prior representation that it would not pursue a claim).
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In New Hampshire v. Maine, the Supreme Court held that
judicial estoppel could be utilized in the federal courts. 532
U.S. at 756. The court defined judicial estoppel as a doctrine
which "generally prevents a party from prevailing in one phase of
a case on an argument and then relying on a contradictory argument
to prevail in another phase." New Hampshire, 532 U.S. at 749(quoting Pegram v. Herdrich, 530 U.S. 211, 227 n.8 (2000))
(internal quotation marks omitted). Unlike the doctrine of issue
preclusion, judicial estoppel does not require that the issue have
been actually litigated in the prior proceeding. Id. at 748-49; 18
Moore's Federal Practice § 134.30, at 134-69 (3d ed. 2005).
In New Hampshire, the Court recognized that, although New
Hampshire was equitably barred from asserting a position
(concerning a river boundary) contrary to a position it had taken
in earlier litigation which had culminated in a consent decree,
judicial estoppel might be inappropriate when a party's prior
position was based on inadvertence or mistake. New Hampshire, 532
U.S. at 753. But the Court rejected New Hampshire's "mistake"
argument that it had failed to do searching historic research
earlier, and that if New Hampshire had known then what it knew now,
it would not have entered into the consent decree. Id. at 753-54.
The Court noted that New Hampshire had had every incentive to do
that research earlier. Id. at 754. The Court also noted that the
state's inconsistent position would give New Hampshire an advantage
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at Maine's expense. Id. at 755. Furthermore, it is clear that New
Hampshire's inconsistent position presented the risk of
inconsistent outcomes in the Supreme Court. The Court had, in the
earlier litigation, determined for itself that New Hampshire's
earlier position was consistent with the evidence, id. at 753-54,
and had relied on that position in approving the earlier consent
decree, id. at 752.
The contours of the judicial estoppel doctrine are not
sharply defined, and there is no mechanical test for determining
its applicability. See id. at 750-51. New Hampshire recognized
that the purpose of the doctrine is to protect the integrity of the
judicial process. Id. at 750. The Court identified several
factors which inform the decision whether to apply the doctrine,
but also stressed these were neither "inflexible prerequisites" or
an "exhaustive formula." Id. at 751. The first factor is whether
the party's later position is clearly inconsistent with its earlier
position (that inconsistency is conceded in this case). The second
is whether the party has succeeded in persuading a court to accept
the party's earlier position, so that judicial acceptance of an
inconsistent position in a later proceeding would create the
perception of inconsistent court determinations, suggesting that
either the first or second court was misled. The third
consideration is whether an unfair advantage or detriment would be
created. See id. at 750-51.
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This court construed the New Hampshire decision in
Alternative System Concepts, Inc. v. Synopsys, Inc., 374 F.3d 23(1st Cir. 2004), and held that generally, judicial estoppel would
not attach1 unless:
(1) the estopping position and the estopped
position [are] directly inconsistent;
and
(2) the responsible party . . . succeeded
in persuading a court to have accepted
its prior position.
Id. at 33. This court also rejected as a prerequisite to
application of the doctrine that the party asserting the
inconsistent position be shown to have benefitted from the court's
acceptance of the party's initial position.2 Id.1
The parties have not briefed the question of whether
federal or state law on judicial estoppel should apply when the
underlying case as to which estoppel is sought was a state case,
plaintiff then pursued his civil rights action in state court, and
the action was then removed to federal court. We noted this issue
in Alternative System Concepts, 374 F.3d at 32, but did not resolve
it as state and federal law were materially the same. The parties
have assumed federal law applies, and so shall we. See Patriot
Cinemas, 834 F.2d at 215; see also Lowery v. Stovall, 92 F.3d 219,
223 n.3 (4th Cir. 1996) (holding judicial estoppel is matter of
federal law).
We note that one commentator has questioned why, if state
law would not judicially estop a second action in state court (and
we do not know here what Massachusetts law requires), a federal
court has an interest in applying the doctrine to its own
proceedings. See 18B Wright, Miller & Cooper, Federal Practice &
Procedure § 4477, at 624 n.122 (2d ed. 2002).
2
Other circuits have articulated other criteria. See, e.g.,
Carrasca v. Pomeroy, 313 F.3d 828, 835 (3d Cir. 2002) (holding that
"judicial estoppel can be imposed only if: '(1) the party to be
estopped is asserting a position that is irreconcilably
inconsistent with one he or she asserted in a prior proceeding; (2)
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This case involves the particular branch of the doctrine
that prohibits a party from asserting historic facts (as opposed to
legal theories) that are inconsistent with historic facts the party
has agreed to in a prior court proceeding.3 Of particular
significance is that the prior proceeding was a criminal proceeding
and the facts were not found by a court or jury, but were agreed to
as part of a plea bargain. We note that although judicial estoppel
does not usually apply to non-judicially approved settlements, cf.
In re Bankvest Capital Corp., 375 F.3d 51, 61 (1st Cir. 2004), plea
agreements are certainly reviewed by a court.
As to our standard of review, the question before us is
partially one of law, which we review de novo. See United States
v. Leja, 448 F.3d 86, 92 (1st Cir. 2006) ("The district court's
resolution of legal questions . . . is reviewed de novo.");
Montrose Med. Group Participating Sav. Plan v. Bulger, 243 F.3d
773, 780 (3rd Cir. 2001) (de novo review of questions of law about
judicial estoppel). The standard of review is also partially one
of application of law to facts and exercise of judgment by the
the party changed his or her position in bad faith, i.e., in a
culpable manner threatening to the court's authority or integrity;
and (3) the use of judicial estoppel is tailored to address the
affront to the court's authority or integrity'" (quoting Montrose
Med. Group Participating Sav. Plan v. Bulger, 243 F.3d 773, 777-78
(3d Cir. 2001))).
3
Different and very complicated issues arise when judicial
estoppel is purported to apply to pure issues of law. See Note,
Judicial Estoppel and Inconsistent Positions of Law Applied to Fact
and Pure Law, 89 Cornell L. Rev. 191 (2003).
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district court, which we review for abuse of discretion.
Alternative Sys. Concepts, 374 F.3d at 30-31 (holding that "the
appropriate standard for reviewing a trial court's application of
the doctrine of judicial estoppel" is abuse of discretion (emphasis
added)).
a. Guilty Pleas and Judicial Estoppel
As for the question of law, the defendants argue for a
rule that admissions to facts at an earlier guilty plea colloquy by
a criminal defendant should generally bind that person as a
plaintiff in subsequent civil rights actions. We reject any such
per se rule. There is reason for caution.
The seminal case, relied on by defendants for the
proposition that judicial estoppel should, as a rule, apply to
facts admitted during guilty pleas, is Lowery v. Stovall, 92 F.3d
219 (4th Cir. 1996). See, e.g., Johnson v. Linden City Corp., 405
F.3d 1065, 1069-70 (10th Cir. 2005) (relying on Lowery). In
Lowery, a civil plaintiff who had pled guilty to maliciously
causing bodily injury to a police officer with intent to kill sued
the police for excessive use of force. 92 F.3d at 221. In oft-
quoted language, the Lowery court said:
Particularly galling is the situation where a
criminal convicted on his own guilty plea
seeks as a plaintiff in a subsequent civil
action to claim redress based on a repudiation
of the confession. The effrontery or, as some
might say it, chutzpah, is too much to take.
There certainly should be an estoppel in such
a case.
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92 F.3d at 225 (quoting Hazard, Revisiting the Second Restatement
of Judgments: Issue Preclusion and Related Problems, 66 Cornell L.
Rev. 564, 578 (1981)).
This language could be taken to mean that any defendant
who pleads guilty and in doing so admits to certain facts is thus
playing "fast and loose" if he takes an inconsistent position
later, and so he should be judicially estopped. That is not our
view. If "chutzpah" alone justified judicial estoppel, a great
many claims would be estopped.
Courts, whether on appeal, motion for new trial, or
petition for post-conviction or collateral relief, commonly address
contentions that a defendant should not be bound by facts stated in
a plea agreement. That being so, the mere assertion of
inconsistent facts from those admitted in a plea does not strike us
as inherently impugning the integrity of the judicial process.
Judicial estoppel, for example, is not applicable to bar a criminal
defendant from later asserting a claim based on innocence either on
direct appeal or on habeas corpus, even when such a claim rests on
facts that contradict the criminal defendant's in-court and sworn
representations. See Morris v. California, 966 F.2d 448, 453-54
(9th Cir. 1991), cert. denied, 506 U.S. 831 (1992).
At least two other concerns arise in this setting with
respect to whether there is any impugning of judicial integrity.
The first is that guilty pleas do not necessarily establish
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absolute historic facts; what is stated in a plea arrangement is an
agreed-upon version of the facts that, while it avoids
misrepresentation, is sufficient to support the entry of the plea.
It is not uncommon for the statement of those facts to be shaped by
bargaining between the parties. For example, in United States v.
Yeje-Cabrera, 430 F.3d 1 (1st Cir. 2005), this court discussed
extensively the issue of fact bargaining in guilty pleas; we
described fact bargaining as an inevitable consequence of the
process of plea bargaining. Id. at 27-28. Plea bargains benefit
both the prosecution and the defense: the defendant is motivated to
bargain to get lenient treatment, and the prosecution gains from
bargains by saving resources and achieving efficient outcomes.
Indeed, it may be the later civil rights plaintiff who seeks to
apply judicial estoppel against the prosecution for statements
agreed to in plea agreements. Cf. United States v. Levasseur, 846
F.2d 786, 790-95 (1st Cir. 1986) (reversing district court's
application of judicial estoppel to bar government from alleging
certain crimes as RICO violations); cf. also United States v.
Christian, 342 F.3d 744, 748 (7th Cir. 2003) (rejecting judicial
estoppel of government); Young v. Dept. of Justice, 882 F.2d 633,
639-40 (2d Cir. 1989) (considering whether judicial estoppel should
apply against the government, albeit in a non-plea-agreement
scenario).
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Secondly, the question of judicial "acceptance" of a
guilty plea may turn on the particulars of a given case. All facts
recited during the plea colloquy are not necessarily "accepted" by
a judge. Mass. R. Crim. P. 12(c)(5)(A), for example, precludes a
judge from accepting a plea of guilty "unless [he] is satisfied
that there is a factual basis for the charge." Significantly, the
rule also provides that "[t]he failure of the defendant to
acknowledge all of the elements of the factual basis shall not
preclude a judge from accepting a guilty plea." The federal rule
generally is that the facts recited "may prove more than what is
charged, but not less." Christian, 342 F.3d at 748 (citing United
States v. Martin, 287 F.3d 609, 621 (7th Cir. 2002)). Here, for
example, Thore argues that the plea colloquy did not need to recite
that officer Dibara was in fear for his life when he shot, in order
to establish that Thore was guilty of assault and battery with a
dangerous weapon, by automobile. Indeed, viewing the state crime
as a general intent crime, all that was needed was that the
officers were touched by his car and the touching was not
accidental, not that Thore intended to injure the officers.
The Supreme Court has, in New Hampshire, tied the
judicial-acceptance factor to the risk of inconsistent decisions
from two courts. 532 U.S. at 750-51. In this context -- guilty
pleas followed by § 1983 actions -- the Heck doctrine will cause
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dismissal of any § 1983 case which could undermine the conviction.4
But to say his claim may survive Heck is not to say that judicial
estoppel can play no role as to facts admitted at a plea colloquy.
Judicial estoppel is, after all, a doctrine of equity.
Another rationale -- avoidance of misleading the court --
has been articulated for judicial estoppel. In our view, it is
wrong to think that either the defendant or the government has
necessarily misled or made an intentional misrepresentation5 to the
court that accepted the plea when a party tries to assert a
partially inconsistent version of the facts in a later civil rights
action.6 And it would be equally wrong to use the judicial
estoppel doctrine automatically to foreclose genuine efforts to
demonstrate the truth.
4
But see Johnson, 405 F.3d at 1069-70 (analyzing issue of
inconsistency between state conviction and federal civil rights
case under judicial estoppel, not Heck).
5
Of course, no relief from judicial estoppel usually is
available to a party who has undermined the integrity of the
judicial system by intentionally misrepresenting historic facts.
Thore argues the converse: that the standard should be that he
should not be held to his earlier statement until it is shown that
he intentionally misled the earlier court, and there is no
intentional misrepresentation at issue here. But, under
Alternative System Concepts, a party is not automatically excused
from judicial estoppel if the earlier statement was made in good
faith. 374 F.3d at 35.
6
As to legal theories, the Federal Rules themselves permit
pleading of inconsistent theories in a single action. See Fed. R.
Civ. P. 8(e)(2).
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Circuit courts have been sensitive to this problem. In
Carrasca v. Pomeroy, 313 F.3d 828 (3rd Cir. 2002), the plaintiffs,
who were of Hispanic descent, brought a racial profiling action
against park officials alleging that the officials had applied
swimming regulations differentially between Hispanic and non-
Hispanic visitors. Id. at 830, 832. Plaintiffs had all been
arrested for use of the lake and had pled guilty to state charges
(though they later contended that at least one of the plaintiffs
had not actually broken the regulations). Id. The district court
granted summary judgment in favor of the park officials, id. at
830, and the court of appeals reversed and remanded for
reconsideration of the application of judicial estoppel, id. at
835. In doing so, it relied on statements in Haring v. Prosise,
462 U.S. 306, 318-19 (1983), that there are a number of reasons why
a defendant might choose to plead guilty. Carrasca, 313 F.3d at
835; see also Haring, 462 U.S. at 318-19 (noting that "a
defendant's decision to plead guilty may have any number of other
motivations," including shock, avoidance of financial and emotional
cost, and hope for a lesser sentence). Accordingly, we reject the
notion that judicial estoppel automatically applies to facts
admitted during guilty pleas.
b. Application of Doctrine to this Case
Having rejected any per se rule that judicial estoppel
always applies or never applies to facts admitted during a guilty
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plea, we turn to the question of application of the doctrine to the
particular facts of the case. Our review is for whether the
district court abused its discretion in applying estoppel here.
Alternative Sys. Concepts, 374 F.3d at 30-31.
We note again that Thore has conceded that his current
position is directly inconsistent with facts admitted at his plea
colloquy. Furthermore, based on the transcript of Thore's plea
colloquy, it was reasonable for the district court to conclude that
there was sufficient acceptance by the state court of the facts
previously admitted to by Thore.
Thore nevertheless attempts to fit his case into well-
recognized exceptions to judicial estoppel. The Supreme Court has
noted that a later inconsistent assertion of fact will not
necessarily give rise to judicial estoppel if a reasonable
justification can be offered for a change in positions. See New
Hampshire, 532 U.S. at 753, 755 (noting that inadvertence or
mistake may make application of judicial estoppel inappropriate,
and referencing "considerations of equity" in deciding that
judicial estoppel was appropriate in that case).
The classic case of justification is "when a party's
prior position was based on inadvertence or mistake." Id. at 753(quoting John S. Clark Co. v. Faggert & Frieden, P.C., 65 F.3d 26,
29 (4th Cir. 1995)) (internal quotation marks omitted); see also 18
Moore's Federal Practice, supra, § 134.33[2], at 134-74 (noting
-26-
that some courts require bad faith in order for judicial estoppel
to apply). For example, in Alternative System Concepts we
recognized an exception may be available "if . . . the new,
inconsistent position is the product of information neither known
nor readily available to [a party] at the time the initial position
was taken." 374 F.3d at 35; accord Intergen N.V. v. Grina, 344
F.3d 134, 144 (1st Cir. 2003) (rejecting "a rule that unduly
inhibits a plaintiff from appropriately adjusting its complaint
either to correct errors or to accommodate facts learned during
pretrial discovery").
In a somewhat analogous case, Cleveland v. Policy
Management Systems Corp., 526 U.S. 795 (1999), the Supreme Court
addressed the question of whether a party's claim that she was
totally disabled for SSI purposes judicially estopped her from
proving an essential element of her Americans with Disabilities Act
claim that she could perform the essential functions of her job (at
least with reasonable accommodation). The opinion held that the
district court should require sufficient explanation of any
apparent inconsistency. Id. at 806-07. While that opinion
addressed conflicts as to legal conclusions drawn from facts, and
specifically distinguished "purely factual contradictions," id. at
-27-
807, we think the model of examining the defendant's reasons for
justification of the inconsistency is apt.7
Thore argues that his initial agreement to the facts
stated at the guilty plea colloquy should not bind him because of
his own debilitated condition after the shooting and because he was
induced to agree to those facts by fraud8 on the part of the police
in their representations to him about what Laro said. Neither
argument is enough here to establish any abuse of discretion in the
district court's ruling.
Thore's argument that he truly does not recall the event
because he was shot and so cannot be held to have personally
remembered the details he agreed with at the colloquy is
disingenuous. No evidence at all supports this theory. Even now
he does not argue that at the time of the plea colloquy, almost
four months after the shooting, he did not recall the events
leading up to the shooting. At most, he has said he did not recall
what happened after he was shot and before he awakened in a
hospital. There is no evidence he was not competent at the time of
7
Similarly, where a witness gives a clear and unambiguous
answer, he may not defeat summary judgment with a contradictory
affidavit unless he gives a satisfactory explanation of why the
testimony has changed. Colantuoni v. Alfred Calcagni & Sons, Inc.,
44 F.3d 1, 4-5 (1st Cir. 1994).
8
See Jaffe v. Accredited Sur. and Cas. Co., Inc., 294 F.3d
584, 595 n.7 (4th Cir. 2002) (holding that judicial estoppel does
not apply when a party's assertedly inconsistent positions stem
from reliance on statements made to the court by an opponent which
later prove to be untrue).
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the plea. He has offered no justification for his own switch in
position between the plea bargain and now on what happened before
he was shot. Laro's version of the facts is irrelevant to Thore's
own agreement with the recited facts.
There is also no explanation for why Thore did not
attempt to talk to Laro before Thore pled guilty. That Thore did
not think of it at the time is no more a justification than New
Hampshire's argument that it should be excused because it did
inadequate research into the historical facts during the first
proceeding. Whatever Laro had to say, this was information
available to Thore at the time of his plea.
As for Thore's attempt to assert reliance on the police
accounts of Laro's interview, which Thore now says were fraud, a
district court could consider both that the reliance was
unreasonable and the evidence of fraud very weak.
There are many explanations for Laro's reversal other
than that the police had engaged in a conspiracy and attributed
false statements to Laro in their reports. The contemporaneous
statements made to the police were signed by Laro at the time as
accurate statements of the events. That he now does not have the
same memory does not establish there was fraud or deception worked
on Thore or on the state criminal court by the police.9 The
9
Thore also offered a statement from an accident
reconstruction witness that concludes that "the vehicular evidence
now available to us suggests the police were the aggressors in this
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reports of the police officers, Thore's girlfriend, and the third-
party witness at the time all support exactly the facts recited to
the state court in the plea colloquy.10
Nor was it an abuse of discretion for the district court
to conclude that the equities supported application of the
doctrine. There is little to support the plaintiff's claim of
fraud, and the defendants reasonably thought that the statements
made in the plea colloquy -- that Thore's actions had placed the
officers in fear of their lives -- protected them from exactly this
lawsuit.
While undoubtedly cases exist in which criminal
defendants should not be held to the statements they made at the
time they pled guilty in a subsequent civil rights action, the
district court did not abuse its discretion in deciding this was
not one of those cases.
We affirm the entry of judgment for defendants. Costs
are awarded to defendants.
case." But that conclusion rests on Laro's testimony that Thore
did not hit any police cars.
10
As the defendant state officers point out, there are
additional equitable reasons to apply the estoppel doctrine.
Although Thore's arguments on estoppel are largely based on the
truck driver's deposition, Thore filed the lawsuit a year before
the truck driver made any such statements.
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