Sants v. Seipert ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 NICHOLAS SANTS, No. 2:15-cv-00355-KJM-CKD 12 Plaintiff, 13 v. ORDER 14 MICHAEL SEIPERT, individually; COUNTY OF PLACER, a government 15 entity and municipality; and DOES 1-10, inclusive, 16 Defendant. 17 18 19 Nicholas Sants alleges that Office Michael Seipert used excessive force during an arrest. 20 The matter is before the court on Seipert’s motion for summary judgment, which is fully briefed. 21 See Mot, ECF No. 63; Opp’n, ECF No. 65; Reply, ECF No. 66. The court held a hearing on 22 September 5, 2020. Patricia Campi appeared for Mr. Sants, and Julia Reeves appeared for Officer 23 Seipert. ECF No. 68. The court denies the motion, as explained below. 24 I. FACTUAL AND PROCEDURAL BACKGROUND 25 In deciding a motion for summary judgment, the court draws all inferences and views all 26 evidence in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. 27 Zenith Radio Corp., 475 U.S. 574, 587–88 (1986). The court therefore summarizes the evidence 28 here in the light most favorable to Mr. Sants. To be clear, the following is not a summary of 1 undisputed facts, but a description of what a fact-finder could reasonably conclude based on 2 Mr. Sants’s evidence. 3 On an evening in February, Mr. Sants was standing in front of the Auld Dubliner Bar at 4 the Squaw Valley ski resort with four or five friends after attending the “Mardi Squaw” 5 celebration. Pl.’s Resp. Undisputed Material Facts (UMF) No. 3, ECF No. 65-1. Mr. Sants had 6 drunk “two or three” Coors Light beers over the course of the night. Sants Dep. at 5 (28:4–19),1 7 Campi Decl. Ex. 1, ECF No. 65-2. Officer Seipert arrived in his patrol car, responding to 8 complaints that patrons of the bar were singing or yelling loudly.2 He focused on Mr. Sants and 9 his group, yelling at them from his car to “shut the fuck up.” See Andrews Dep. at 17 (16:12–13); 10 Sants Dep. at 7 (33:4–8). Mr. Sants approached Officer Seipert, asking if something was wrong 11 or he needed anything, but Seipert said no; Sants was free to go. Sants Dep. at 6 (31:8–20). 12 Mr. Sants then left. But when he was about 100 feet away, he felt someone grab him from 13 behind. Sants Dep. at 6 (31:20–21); id. at 7 (34:2–21); see also Andrews Dep. at 18 (17:9–12). 14 He spun out of the grip and away, not yet knowing it was Officer Seipert. Sants Dep. at 7 (34). It 15 was at this point Officer Seipert first told Mr. Sants he was under arrest for public intoxication 16 and to “stop resisting.” UMF No. 14. Mr. Sants’ friend attempted unsuccessfully to intervene. 17 UMF No. 17. Then, after a brief moment when the two wrestled for control of Mr. Sants’ arm, 18 Officer Seipert began punching Sants in the head, and according to one witness, pulled Sants’ 19 shirt over his head and began throwing “upper cuts” like in “a hockey fight.”3 Officer Seipert 20 1 Except as noted, the page numbers cited in this order are those printed by the court’s CM/ECF 21 system at the top right of each page. Page numbers cited in parentheses, if any, are those original to the cited document. 22 2 See Seipert Decl. ¶ 6, ECF No. 63-3; Seipert Trial Test. at 5 (8:3–22), Reeves Decl. Ex. E, ECF 23 No. 63-10; Jennings Dep. at 5 (26:11–22, 27:14–21), Reeves Decl. Ex. D, ECF No. 63-9; Andrews Dep. at 17 (16:12–13), Campi Decl. Ex. 3, ECF No. 65-2; Sants Dep. at 7 (33:4–8). 24 3 see Sants Dep. at 8 (39:9–11); Pl.’s Interrog. Resp. No. 7, Campi Decl. Ex. 6, ECF No. 65-2; Andrews Dep. at 18 (19:8–23); Jennings Dep. at 12 (28:17–25), ECF No. 65-2; Jennings Trial Tr. 25 at 24–25 (96:14–27, 97:1–5), Campi Decl. Ex. 4, ECF No. 65-2; Andrews Trial Tr. at 42 (118:2– 26 8), Campi Decl. Ex. 7, ECF No. 65-2. For the uninitiated, an upper-cut is an upwardly swinging blow thrown with a bent arm, often to 27 the chin. See Merriam-Webster Online Dictionary, “uppercut,” available at https://www.merriam-webster.com/dictionary/uppercut (last visited Jan. 19, 2021); cf. 28 @barstoolsports, Twitter (Jan. 5, 2020, 11:30 AM). 1 then fell to the ground in an attempt to either tackle or punch Mr. Sants again; Sants at this point 2 was attempting to dodge or shield himself from the blows. See Andrews Dep. at 19 (22:2–24). A 3 crowd formed around the two men and began lobbing accusations of police brutality. UMF 4 No. 18. At some point, Officer Seipert drew his baton and attempted to strike Mr. Sants, but 5 Sants caught the baton, pulled it from Officer Seipert’s grip, and threw it into the crowd. UMF 6 No. 24–25. Squaw Valley security then arrived and helped Officer Seipert restrain and arrest 7 Mr. Sants. UMF No. 29. 8 Since that evening in February, Mr. Sants has suffered from “traumatic brain injury 9 resulting in seizure disorder, hallucinations, paranoid behaviors, defects in concentration, post- 10 traumatic stress disorder, anxiety and depression.” Pl.’s Interrog. Resp. No. 8. He also chipped a 11 tooth. See id. Officer Seipert also sustained a significant shoulder injury and was forced into 12 early retirement due to a related surgery. See UMF No. 31. 13 Mr. Sants was charged with two felony counts of resisting an executive officer under 14 California Penal Code section 69, one felony count of injury to an officer in the course of their 15 duties under California Penal Code section 148.10, and one misdemeanor count of public 16 intoxication under California Penal Code section 647(f). At the same time, Mr. Sants filed this 17 suit, which was stayed pending the completion of the criminal case. See Stay Order (Sept. 3, 18 2015), ECF No. 11. At his criminal trial, a jury found Mr. Sants guilty of a single count of a 19 lesser included charge: resisting a peace officer under California Penal Code section 148(a)(1). 20 See generally Excerpts of Jury Instructions & Verdict, Reeves Decl. Ex. G, ECF No. 63-12. This 21 action then resumed and is now proceeding on just one claim of unconstitutional excessive force 22 against Officer Seipert under 42 U.S.C. § 1983. See Order on Mot. Dismiss, ECF No. 59. 23 ///// 24 ///// 25 ///// 26 ///// 27 28 https://twitter.com/barstoolsports/status/1213905613085970432 1 II. LEGAL STANDARD 2 A court may grant summary judgment “if . . . there is no genuine dispute as to any 3 material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). 4 The “threshold inquiry” is whether “there are any genuine factual issues that properly can be 5 resolved only by a finder of fact because they may reasonably be resolved in favor of either 6 party,” or conversely “whether it is so one-sided that one party must prevail as a matter of law.” 7 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 251–52 (1986). 8 The moving party bears the initial burden of showing the district court “that there is an 9 absence of evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 10 317, 325 (1986). The burden then shifts to the nonmoving party, which “must establish that there 11 is a genuine issue of material fact . . . .” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 12 475 U.S. 574, 585 (1986). In carrying their burdens, both parties must “cit[e] to particular parts 13 of materials in the record . . . ; or show[] that the materials cited do not establish the absence or 14 presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to 15 support the fact.” Fed. R. Civ. P. 56(c)(1); see also Matsushita, 475 U.S. at 586 (“[The 16 nonmoving party] must do more than simply show that there is some metaphysical doubt as to the 17 material facts.”). Moreover, “the requirement is that there be no genuine issue of material 18 fact . . . . Only disputes over facts that might affect the outcome of the suit under the governing 19 law will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 247–48 20 (emphasis omitted). 21 As noted above, in deciding a motion for summary judgment, the court draws all 22 inferences and views all evidence in the light most favorable to the nonmoving party. Matsushita, 23 475 U.S. at 587–88; Whitman v. Mineta, 541 F.3d 929, 931 (9th Cir. 2008). “Where the record 24 taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 25 ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation omitted). 26 ///// 27 ///// 28 ///// 1 III. DISCUSSION 2 Officer Seipert contends he is protected by qualified immunity and, in the alternative, that 3 Mr. Sant’s claim is barred by Heck v. Humphrey, 512 U.S. 477 (1994). Mot. at 3–9. The court 4 addresses these arguments in turn. 5 A. Qualified Immunity 6 “Qualified immunity is a judge-made doctrine designed to ‘balance[] two important 7 interests—the need to hold public officials accountable when they exercise power irresponsible 8 and the need to shield officials from harassment, distraction, and liability when they perform their 9 duties reasonably.’” Haley v. City of Boston, 657 F.3d 39, 47 (1st Cir. 2011) (alteration in 10 original) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). Qualified immunity is 11 intended to “give[] government officials breathing room to make reasonable but mistaken 12 judgements about open legal questions.” Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011). 13 Courts follow a two-pronged test in determining whether qualified immunity applies at 14 summary judgment: first, the court determines whether the evidence in the record can support a 15 claim that defendant violated plaintiff’s constitutional rights. Pearson, 555 U.S. at 232 (citing 16 Saucier v. Katz, 533 U.S. 194, 201 (2001)). Then, “if the plaintiff has satisfied this first step, the 17 court must decide whether the right at issue was ‘clearly established’ at the time of defendant’s 18 alleged misconduct.” Id. (citing Saucier, 533 U.S. at 201). If the right violated by the official’s 19 conduct was not “clearly established,” then the officer is protected by qualified immunity. 20 Anderson v. Creighton, 483 U.S. 635, 640 (1987). Courts may begin with either of these prongs, 21 but it is “often beneficial” to begin with the first. Pearson, 533 U.S. at 236. That is true here. 22 Violation of a Constitution Right 23 Police officers violate an individual’s Fourth Amendment rights when they use excessive 24 force during an arrest. See Graham v. Connor, 490 U.S. 386, 396 (1989). Such claims are 25 assessed using an “objective reasonableness standard.” Blanford v. Sacramento County, 406 F.3d 26 1110, 1115 (9th Cir. 2005). “[R]easonableness is generally assessed by carefully weighing the 27 nature and quality of the intrusion on the individual’s Fourth Amendment interests against the 28 importance of the governmental interests alleged to justify the intrusion.” County of Los Angeles 1 v. Mendez, 137 S. Ct. 1539, 1546 (2017) (internal quotation omitted). The government interest in 2 use-of-force cases is evaluated from “the perspective of a reasonable officer on the scene.” 3 Graham, 490 U.S. at 396. Here, the court “must consider the risk of bodily harm that [Officer 4 Seipert’s] actions posed to [Mr. Sants] in light of the threat to the public that [Officer Seipert] was 5 trying to eliminate.” Scott v. Harris, 550 U.S. 372, 382 (2007). 6 Viewing the evidence in a light most favorable to Mr. Sants, the risk of harm created by 7 the Officer Seipert’s force was high. Mr. Sants and other witnesses believed Officer Seipert was 8 attempting to break Mr. Sants’ arm and saw him hit Sants in the head as if the two were in a 9 hockey fight, all without plaintiff’s actively fighting back. See Jennings Dep. at 12 (28:8–16); 10 Sants Dep. at 7–8 (36:3–37:24); Andrews Dep. at 16–17 (16:11–20:3), ECF No. 65-2. It is 11 undisputed that Officer Seipert’s blows caused a severe head injury, which placed Mr. Sants on 12 permanent disability. A reasonable jury could find this use of force to be extreme. See Davis v. 13 City of Las Vegas, 478 F.3d 1048, 1055 (9th Cir. 2007) (slamming suspect’s head into wall and 14 punching him in head was “extremely severe”); see also Vivero v. City of Merced Police Dept., 15 No. 08-1751, 2009 WL 3625385, at *6 (E.D. Cal. Oct. 29, 2009) (repeated blows to head of 16 suspect who was not actively fighting back were excessive). 17 On the other side of the scale, the asserted governmental interest, and Officer Seipert’s 18 interests as a uniformed police officer, are twofold. First, he had an interest in defending himself 19 from Mr. Sants. Second, he had an interest in preventing the crime he believed Sants was 20 committing. The court addresses each of these in turn. 21 The danger to Officer Seipert stemmed, in his own words, from Sants’s spinning to face 22 him. Seipert Decl. ¶ 17. But Sants was unarmed and—if the evidence is considered in the light 23 most favorable to his case—posed little or no threat to Officer Seipert or to anyone else. The act 24 of spinning in an officer’s grasp and similar reactive defensive movements do not alone 25 demonstrate a danger to an arresting officer or anyone else. See Davis, 478 F.3d at 1052, 1055– 26 56 (finding no immediate threat in handcuffed suspect rotating away from arresting officer to 27 prevent seizure of his wallet after he ignored repeated orders and shouted expletives); see also 28 Schroeder v. County of San Bernardino, No. 18-427, 2019 WL 3037924, at *7 (C.D. Cal. Mar. 8, 1 2019) (finding minimal danger in plaintiff’s attempt to pull away from officer’s grasp during 2 traffic stop). Recently, considering a very similar situation, an Oregon district court found that 3 even tripping a suspect and taking him “to the ground” could be an excessive response to the 4 suspect’s “spinning towards [the officer] and attempting to pull away.” Stauffer v. City of 5 Newberg, No. 17-01295, 2020 WL 1861675, at *10 (D. Or. Mar. 20, 2020). Officer Seipert does 6 not argue that Sants’s friend’s attempted interference escalated the situation. Sants’s successful 7 attempt to disarm Officer Seipert of his baton followed Officer Seipert’s repeated blows and so 8 cannot justify those blows. A reasonable jury could thus find Mr. Sants presented little or no 9 threat to Officer Seipert. 10 The severity of Mr. Sants’s suspected crimes offers little support for the force Officer 11 Seipert used, viewing the evidence again in the light most favorable to Mr. Sants. As summarized 12 above, a jury could reasonably find that Sants was loudly drinking in public with friends and 13 others, but not that he was violent, armed or posed a danger to others. A reasonable officer in 14 Seipert’s situation could therefore suspect only a relatively minor offense, such as rowdiness, 15 public intoxication or verbal abuse. Public intoxication and similarly minor offenses might 16 justify some force, but not force like that used here. In Onyenwe v. City of Corona, for example, 17 the district court denied summary judgment to officers who yanked a man suspected of public 18 intoxication out of his car, shoved him and pushed him, and slammed him against the side of the 19 car. See No. 12-01363, 2013 WL 12169375, at *10–14 (C.D. Cal. Dec. 1, 2013). The Ninth 20 Circuit agreed in an unpublished memorandum disposition, noting that public intoxication is only 21 a “minor crime.” See 637 F. App’x 370 (9th Cir. 2016). In Winterrowd v. Nelson, the circuit 22 affirmed the district court’s decision that officers were not entitled to qualified immunity after 23 they slammed a nonviolent, unarmed man into a car and twisted his arms behind his back. See 24 480 F.3d 1181, 1182–83, 1184–86 (9th Cir. 2007). It made no difference that the officers found a 25 firearm in the car or that the man had a “belligerent attitude.” See id. Similarly, officers were not 26 acting proportionally when they beat a suspect to the point of unconsciousness for spray painting 27 a police car and attempting to drive away in Vivero v. City of Merced Police Department, even 28 though a crowd had gathered, No. 08-1751, 2009 WL 3625385, at *6–7 (E.D. Cal. Oct. 29, 2009). 1 But even if it were reasonable for an officer in Seipert’s shoes to conclude that Sants was 2 obstructing justice, that conclusion would not justify Seipert’s force. Obstruction of justice is “by 3 no means such [a] serious offense[] as to provide an officer with reasonable basis for subduing a 4 person” with intense physical force, including repeated blows to the head. Davis, 478 F.3d 5 at 1055. 6 In sum, weighing the amount of force used and the government’s interest, a reasonable 7 jury could conclude the force was excessive. 8 Officer Seipert argues otherwise, relying on the testimony of his retained expert, Retired 9 Sergeant Edward Flosi, who opines that Officer Seipert’s force was reasonable. Mot. at 5–7; see 10 also Flosi Rep. at 26–37, ECF No. 63-7. Sergeant Flosi’s opinions may prove persuasive to a 11 jury, but his opinions do not resolve factual disputes, and at this stage of the proceedings he 12 cannot take the jury’s place in deciding what occurred and what force was reasonable. “[T]he 13 jury,” not an expert, “is best suited to determine the reasonableness of an officer’s conduct in 14 light of the factual context in which it takes place.” Sloman v. Tadlock, 21 F.3d 1462, 1468 (9th 15 Cir. 1994). Crediting Flosi’s testimony would also give his judgment essentially controlling 16 weight in applying the law to the facts of this case, which is a question for the jury, not an expert. 17 See United States v. Diaz, 876 F.3d 1194, 1197 (9th Cir. 2017). 18 Clearly Established Law 19 Constitutional violation notwithstanding, if a reasonable officer would not have known 20 that the force used here was excessive, then Officer Seipert is immune to civil suit. A 21 hypothetical “reasonable officer” is charged with awareness of only “clearly established law.” 22 See Ziglar v. Abbasi, 137 S. Ct. 1843, 1867 (2017). “[P]olice officers are entitled to qualified 23 immunity unless existing precedent ‘squarely governs’ the specific facts at issue.” Kisela v. 24 Hughes, 138 S. Ct. 1148, 1153 (2018) (per curiam) (quoting Mullenix v. Luna, 577 U.S. 7, 13 25 (2015) (per curiam)). However, “[p]recedent involving similar facts can help move a case 26 beyond the otherwise ‘hazy border between excessive and acceptable force’ and thereby provide 27 an officer notice that a specific use of force is unlawful,” id. (quoting Mullenix, 136 S. Ct. at 312), 28 and “a general constitutional rule already identified in the decisional law may apply with obvious 1 clarity to the specific conduct in question, even though ‘the very action in question has [not] 2 previously been held unlawful,’” Bonivert v. City of Clarkston, 883 F.3d 865, 872 (9th Cir. 2018) 3 (quoting United States v. Lanier, 520 U.S. 259, 271 (1997)). 4 Here, Officer Seipert is not entitled to qualified immunity. When he encountered Mr. 5 Sants in 2013, it was clearly established that officers may not strike nonviolent, unarmed people 6 who pose little or no threat of harm, who do not attempt to flee, and who are suspected of only 7 minor crimes. That is apparent in the appellate decisions summarized above, which were both 8 issued several years before 2013. See Winterrowd, 480 F.3d at 1182–83, 1184–86; Davis, 9 478 F.3d at 1052, 1055–56. Other decisions had also clearly establishing these rights. In 10 Blankenhorn v. City of Orange, the circuit held similarly that officers used excessive force when 11 they struck a suspect whose arms were pinned beneath him even though he had resisted at first. 12 See 485 F.3d 463, 480 (9th Cir. 2007). This right, the circuit held, was clearly established by 13 Graham itself in 1989. See id. at 481 (“[W]e need look no further than Graham’s holding that 14 force is only justified when there is a need for force.”). In Meredith v. Erath, the circuit affirmed 15 the denial of qualified immunity to an officer who threw a woman to the ground, twisted her arms 16 and tightly handcuffed her because the suspected offenses were nonviolent and the woman neither 17 posed a safety risk nor attempted to flee. 342 F.3d 1057, 1061 (9th Cir. 2003). These rights were 18 clearly established by a 1989 decision. See id. (citing Hansen v. Black, 885 F.2d 642, 645 (9th 19 Cir. 1989)). The circuit has reasoned similarly in its recent unpublished dispositions as well. See, 20 e.g., Orr v. Brame, 727 F. App’x 265, 268 (9th Cir. 2018) (unpublished) (holding that officers 21 violated rights clearly established by Blankenhorn, Winterrowd and Meredith when they punched 22 a man after he “fold[ed] his arms across his chest and twist[ed] his torso from side to side” 23 defensively); Branscum v. San Ramon Police Dept., 606 F. App’x 860, 863 (9th Cir. 2015) 24 (unpublished) (holding that use of force including punches and taser on individual who had led 25 police on long police chase, then briefly resisted officers’ attempts to handcuff him, violated law 26 clearly established by Graham and Blankenhorn). 27 In sum, when the evidence is viewed in the light most favorable to Mr. Sants, as it must be 28 at summary judgment, any reasonable officer in Officer Seipert’s position would have known that 1 repeatedly striking Mr. Sants in the head would be an excessive use of force. Officer Seipert is 2 therefore not entitled to qualified immunity at this stage. See S.R. Nehad v. Browder, 929 F.3d 3 1125, 1140 (9th Cir. 2019). 4 B. Heck v. Humphrey 5 Defendant also requests the court revisit its decision that Heck v. Humphrey, 512 U.S. 477 6 (1994), does not bar Sants’s claim of excessive force. See Order on Mot. Dismiss at 4–7. A 7 district court has inherent authority to reconsider its interlocutory orders. See Fed. R. Civ. P. 8 54(b); City of Los Angeles, Harbor Div. v. Santa Monica Baykeeper, 254 F.3d 882, 885 (9th Cir. 9 2001). Reconsideration is ordinarily appropriate only when controlling law has changed, if new 10 evidence has become available, or when necessary to correct a clear error or prevent manifest 11 injustice. See Cachil Dehe Band of Wintun Indians of Colusa Indian Cmty. v. California, 12 649 F. Supp. 2d 1063, 1069 (E.D. Cal. 2009). “In the absence of new evidence or a change in the 13 law, a party may not use a motion for reconsideration to raise arguments or present new evidence 14 for the first time when it could reasonably have been raised earlier in the litigation.” Id. This 15 District’s local rules also require a party requesting reconsideration to explain “what new or 16 different facts or circumstances are claimed to exist which did not exist or were not shown” or 17 “what other grounds exist for the motion” and “why the facts of circumstances were not shown at 18 the time of the prior motion.” E.D. Cal. L.R. 230(j). 19 Here, Officer Seipert claims the jury instructions used in Mr. Sants’ criminal case, now 20 made part of the record here, override the court’s previous decision that it is possible to conclude 21 that Officer Seipert used excessive force without contradicting the jury’s findings in the criminal 22 case against Sants. See Order on Mot. Dismiss at 6. At the hearing on Officer Seipert’s current 23 motion in this court, his counsel argued the jury instructions in his criminal case explicitly asked 24 the jury to decide whether Officer Seipert used excessive force at any time during the encounter. 25 This argument is based on reasoning expressed, for example, in Redon v. Jordan, No. 13-1765, 26 2017 WL 1155342, at *9 (S.D. Cal. Mar. 28, 2017), which Officer Seipert emphasizes in his 27 moving papers. See Mot. at 8–9. In Redon, the court held that Heck barred the plaintiff’s § 1983 28 excessive force claim because a jury had already decided the plaintiff had resisted a lawful arrest, 1 and lawfulness implies reasonable force. See 2017 WL 1155342 at *9 (citing Susag v. City of 2 Lake Forest, 94 Cal. App. 4th 1401, 1409 (2002)). 3 The jury instructions from Mr. Sants’s criminal case do not bear that argument out. First, 4 they instruct the jury that it could convict Mr. Sants of resisting a peace officer only if, among 5 other things, (1) Officer Seipert was “lawfully performing or attempting to perform his duties” 6 and (2) Sants resisted Officer Seipert “in the performance of or the attempt to perform his duties.” 7 Jury Instructions at 3. Later on, the instructions explain that an officer is not “lawfully 8 performing his or her duties if he or she is . . . using unreasonable or excessive force in his or her 9 duties.” Id. Together, these instructions informed the jury in Mr. Sants’s criminal case it could 10 convict him only if it determined that at the time Sants resisted (if at all), Officer Seipert was 11 using reasonable force. The jury instructions in the criminal case thus permit two factual findings 12 that could support an excessive force claim here: (1) Officer Seipert used excessive force at some 13 other point in the exchange or (2) although some force was reasonable, and although Sants 14 resisted, Officer Seipert responded unreasonably. 15 This conclusion comports with the Ninth Circuit’s and California Supreme Court’s 16 interpretation of section 148 of the California Penal Code. The Ninth Circuit previously has 17 concluded that “a conviction under California Penal Code § 148(a)(1) does not bar a § 1983 claim 18 for excessive force under Heck when the conviction and the § 1983 claim are based on different 19 actions during ‘one continuous transaction.’” Hooper v. County of San Diego, 629 F.3d 1127, 20 1134 (9th Cir. 2011). In Hooper, this meant the plaintiff’s § 1983 claim, which was based on 21 excessive biting by a police dog, was not barred by Heck even though the plaintiff had pleaded 22 guilty to violating section 148(a)(1) by jerking her hands away from the officer before the dog 23 attacked. See id. at 1129. 24 The California Supreme Court reasoned similarly in Yount v. City of Sacramento, 43 Cal. 25 4th 885 (2008). The plaintiff had resisted an arrest for drunken driving, but during the scuffle, an 26 officer had shot him. See id. at 890–91. He survived and pleaded no contest to resisting arrest, 27 then sued the officer and city for excessive force. See id. at 891. The state supreme court 28 permitted him to pursue a § 1983 claim of excessive force despite his conviction because a 1 finding of excessive force would not necessarily prove that no force was reasonable in the 2 circumstances or that the arrest was “unlawful.” See id. at 899–900. “For example, a defendant 3 might resist a lawful arrest,” the court explained, and “the arresting officers might respond with 4 excessive force to subdue him.” Id. at 899 (quoting Jones v. Marcum, 197 F. Supp. 2d 991, 1005 5 n.9 (S.D. Ohio 2002)). If this were not so, “police subduing a suspect could use as much force as 6 they wanted—and be shielded from accountability under civil law—as long as the prosecutor 7 could get the plaintiff convicted on a charge of resisting.” Id. at 900 (quoting VanGilder v. Baker, 8 435 F.3d 689, 692 (7th Cir. 2006)). 9 Here, a jury could find that although some force might have been reasonable and a 10 forceful arrest therefore “lawful,” Officer Seipert used excessive force because he struck Mr. 11 Sants several times in the head. A jury could also decide here that Sants did not resist at first, but 12 later fought back reasonable attempts to restrain him. In neither scenario would these conclusions 13 contradict the jury’s finding in the criminal case that Mr. Sants resisted a “lawful” arrest.4 In 14 sum, because the jury instructions, and thus the jury’s verdict in the criminal case, do not negate 15 the possibility that Officer Seipert used excessive force during the encounter with Mr. Sants, the 16 court declines to revisit its previous analysis. 17 Plaintiff’s excessive force claim is not barred by his section 148(a)(1) conviction, and the 18 motion for summary judgment in this respect is denied. 19 IV. CONCLUSION 20 Defendant’s motion for summary judgment is denied. The motion based on qualified 21 immunity is denied without prejudice to a renewed motion for qualified immunity at trial and 22 defendant’s proposing the use of a special verdict form requesting specific findings to support 23 revisiting qualified immunity. 24 A status conference re trial setting is set for August 5, 2021 at 2:20 p.m. 25 ///// 26 4 To the extent this reasoning conflicts with the Southern District court’s decision in Redon, 2017 27 WL 1155342 at *9, this court concludes it is bound by the Ninth Circuit’s contrary application of Heck in Hooper and the California Supreme Court’s contrary interpretation of Penal Code section 28 148(a)(1) in Yount. 1 Within fourteen days, the parties shall meet and confer and file a joint statement 2 informing the court (1) whether any party objects to referral to a settlement conference before the 3 assigned magistrate judge or another judge of this court; (2) whether the parties stipulate to 4 conducting a trial in this matter by remote means; and (3) if any party has demanded a jury trial, 5 whether the parties stipulate to withdrawing that demand and conducting a bench trial. 6 This order resolves ECF No. 63. 7 IT IS SO ORDERED 8 DATED: February 9, 2021. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28