Smith v. City of Hemet

Opinion by Judge RAWLINSON; Dissent by Judge W. FLETCHER

OPINION

RAWLINSON, Circuit Judge.

In this case, we once again address the quagmire created by the interplay between Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994) and convictions for violations of California Penal Code § 148. Because the California courts have interpreted § 148 in such a manner as to incorporate a finding of no excessive force, we AFFIRM the district court’s ruling that Heck bars Thomas Smith’s § 1983 action.

I. FACTSIPROCEDURAL HISTORY

This saga began when Smith’s wife, Cynthia, placed an emergency phone call to the Hemet Police Department (“Department”) reporting that her husband “was hitting her and/or was physical with her.”

Officer Reinbolt was the first officer to arrive in response to the call. Upon his approach, Officer Reinbolt observed Smith standing on his front porch. Officer Rein-bolt directed his flashlight towards Smith “and noticed Smith’s hands in his pockets.” ¹ Officer Reinbolt announced himself and instructed Smith to remove his hands from his pockets. Smith refused, responding with expletives and directing Officer Reinbolt to approach. Officer Reinbolt informed Smith that he would approach, but only after Smith removed his hands from his pockets to demonstrate he had no weapons. Smith again refused to remove his hands from his pockets and instead entered his home.

After Officer Reinbolt advised dispatch that Smith refused to remove his hands from his pockets and had just reentered his home, Smith reemerged onto the porch with his hands still in his pockets. Officer Reinbolt again requested that Smith show his hands. Smith eventually complied with this instruction, but repeatedly refused to comply with Officer Reinbolt’s instruction to “put his hands on his head and walk towards [the officer’s] voice[.]” Instead, Smith again directed Officer Reinbolt to approach and enter the home with him.

Officer Nate Miller arrived in response to Officer Reinbolt’s radioed request for assistance. Observing Smith’s refusal to cooperate with Officer Reinbolt, Officer Miller contacted dispatch to request additional assistance. Officer David Quinn, a canine handler with the Department, arrived shortly thereafter with “Quando,” a police canine. Officer Aaron Medina also responded to assist Officer Reinbolt.

Officer Quinn instructed. Smith to turn around and place his hands on his head. Smith refused, despite being informed that Quando might be sent to subdue him and might bite. Without warning, Officer Quinn sprayed Smith in the face with pepper spray. Smith responded with expletives and attempted to reenter his residence. Several officers then grabbed Smith from behind, slammed him against the door, and threw him to the ground. Quando bit Smith on his right shoulder and neck area.

Although Smith agreed to comply while Quando was biting him, he admitted that he was “curled up,” in an attempt to shield himself from the dog and that one of his hands was “tucked in somewhere,” still out of the officer’s view. As an officer attempted to secure both arms, Quando bit Smith a second time, this time on his left shoulder blade. Quando retreated, and the officers dragged Mr. Smith off the porch, face down. Once off the porch, Smith continued to hide his arms under his body; Quando bit Smith a third time, on the buttock.

Eventually, Smith complied with the officers’ efforts to place him in handcuffs. Officer Reinbolt washed Smith’s eyes out with water from a nearby hose. Paramedics arrived shortly thereafter and attended to Smith, who required no serious medical treatment.

The Riverside County District Attorney’s Office filed charges against Smith for spousal battery in violation of CaLPenal Code § 243(e) and for “resisting], delaying] and obstructing]” an officer in the performance of his duties in violation of CaLPenal Code § 148. Smith pled guilty to both counts.

Smith subsequently filed a federal Complaint under 42 U.S.C. § 1983 alleging that the officers used excessive force. Appel-lees moved for summary judgment, which the district court granted on the basis of Heck v. Humphrey. Judgment was entered, and Smith filed a timely Notice of Appeal.

II. STANDARDS OF REVIEW

We review the district court’s grant of summary judgment de novo. See Cunningham v. Gates, 312 F.3d 1148, 1153 (9th Cir.2002). “Viewing the evidence in the light most favorable to the nonmoving party, we must determine whether there are any genuine issues of material fact, and whether the district court correctly applied the relevant substantive law.” Jackson v. City of Bremerton, 268 F.3d 646, 650 (9th Cir.2001) (citation omitted).

III. ANALYSIS

Smith’s conviction for resisting arrest bars his excessive force claim.

In Heck v. Humphrey, the United States Supreme Court held that:

[I]n order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus .... A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983. Thus, when a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed ...

512 U.S. at 486-487, 114 S.Ct. 2364.²

Under Cal.Penal Code § 148, “[e]very person who willfully resists, delays, or obstructs any public officer [or] peace officer ... in the discharge or attempt to discharge any duty of his or her office or employment” is punished as a misdemean- or offender. CaLPenal Code § 148(a)(1). “The legal elements of a violation of section 148, subdivision (a) are as follows: (1) the defendant willfully resisted, delayed, or obstructed a peace officer, (2) when the officer was engaged in the performance of his or her duties, and (3) the defendant knew or reasonably should have known that the other person was a peace officer engaged in the performance of his or her duties.” In re Muhammed C., 95 Cal.App.4th 1325, 1329, 116 Cal.Rptr.2d 21 (2002) (citations omitted).

Smith contends that the force the officers used to effect his arrest was excessive. However, the California Court of Appeal’s construction of Cal.Penal Code § 148 makes it clear that a successful excessive force claim would necessarily render a § 148 conviction invalid. See Susag v. City of Lake Forest, 94 Cal.App.4th 1401, 1405-1406, 115 Cal.Rptr.2d 269 (2002). In explaining its ruling, the Court of Appeal observed that:

In California, the lawfulness of an arrest is an essential element of the offense of resisting or obstructing a peace officer. If the officer was not performing his or her duties at the time of the arrest, the arrest is unlawful and the arrestee cannot be convicted under Penal Code section 148, subdivision (a). “[EJxcessive force by a police officer ... is not within the performance of the officer’s duty."

Id. at 1409, 115 Cal.Rptr.2d 269 (citations omitted) (emphasis added) (alteration in the original).

We are bound by decisions of the California Supreme Court interpreting a California statute. See Vestar Dev. II, LLC v. Gen. Dynamics Corp., 249 F.3d 958, 960 (9th Cir.2001) (“When interpreting state law, federal courts are bound by decisions of the state’s highest court.”) (citation omitted). Should no Supreme Court authority exist, and “[i]n the absence of convincing evidence that the state supreme court would decide differently, a federal court is obligated to follow the decisions of the state’s intermediate courts.” Easyriders Freedom F.I.G.H.T. v. Hannigan, 92 F.3d 1486, 1494 n. 4 (9th Cir.1996) (citation and internal quotation marks omitted).

The California Supreme Court has not directly interpreted California Penal Code § 148 as incorporating the lawful use of force. However, it does not appear that the California Supreme Court would decide the issue any differently than the California Court of Appeal. To the contrary, the California Supreme Court has implicitly accepted the interpretation adopted by the California Court of Appeal. “Section 148 has long been construed by the courts as applying only to lawful arrests ...” People v. Curtis, 70 Cal.2d 347, 354, 74 Cal.Rptr. 713, 450 P.2d 33 (1969), disapproved on other grounds in People v. Gonzalez, 51 Cal.3d 1179, 1222, 275 Cal.Rptr. 729, 800 P.2d 1159 (1990). “[I]f the arrest is ultimately determined factually to be unlawful, the defendant can be validly convicted only of simple assault or battery.” Id. at 355-56.

California law leaves us no choice but to regard a § 148 conviction as incompatible with an allegation that the arrest was unlawful. “[WJhere excessive force is used in making what otherwise is a technically lawful arrest, the arrest becomes unlawful ...” People v. White, 101 Cal.App.3d 161, 164, 161 Cal.Rptr. 541 (1980).³ Thus, an allegation that excessive force was used in making an arrest is incompatible with ... a § 148 conviction. See California Jury Instructions, Criminal (“CALJIC”) No. 16.110, 16.111.⁴

For Smith to proceed on his excessive force claim, he must allege facts that would support a finding that the police used excessive force after his arrest was effected. However, as the district court noted, “even under Plaintiffs version of the events, the Defendants sprayed him in the face with pepper spray and had the dog bite him while arresting him.” Order at 8 (emphasis in the original). Thus, we find that Smith’s § 148 conviction bars him proceeding with his particular § 1983 claim.

Smith relies on Sanford v. Motts, 258 F.3d 1117 (9th Cir.2001) to support his position. It is true that in Sanford we allowed a § 1983 claim for excessive force to proceed despite the fact that the plaintiff was convicted under CaLPenal Code § 148(a)(1). However, in Sanford, we emphasized that the excessive force occurred after the arrest was completed. See 258 F.3d at 1120. In this case, the alleged excessive force occurred contemporaneously with the arrest, and directly implicated Heck’s holding.

We have recently obseiwed that “[u]nder Heck ... ‘if a criminal conviction arising out of the same facts stands and is fundamentally inconsistent with the unlawful behavior for which section 1983 damages are sought, the 1983 action must be dismissed.’ ” Cunningham, 312 F.3d at 1153 (citation omitted). In Cunningham, we concluded that Heck barred the plaintiffs § 1983 claim because “there was no break between [the plaintiffs] provocative act ... and the police response that he claimLed] was excessive.” Id. at 1155. We distinguished Smithart v. Towery, 79 F.3d 951 (9th Cir.1996), which allowed a § 1983 excessive force claim to proceed despite the fact that the plaintiff in the § 1983 action was convicted of assaulting the arresting officers. See id. at 952. In Cunningham, we specifically observed that the “factual setting” in Smithart was different from that in which Cunningham was involved:

The plaintiff in Smithart tried to use his truck to run over the sheriff and state patrolman, an act for which he was later convicted of assault. The plaintiff claimed that, after he got out of his truck, the sheriff and patrolman used excessive force to arrest him. The assault conviction and the excessive force claim did not arise from the same acts. Indeed, once he was out of the truck and without access to his “assault weapon,” the officers had no need to use excessive force to subdue the plaintiff or to protect themselves. Here, however, there was no break between Cunningham’s provocative act of firing on the police and the police response that he claims was excessive.

Cunningham, 312 F.3d at 1155 (citations omitted).

The facts in this case differ similarly from those in Smithart. Here, the § 148 conviction does arise from the same acts as those which precipitated the use of force by the officers. “Because the two are so closely interrelated, [Smith’s] conviction forecloses his excessive force claim against the ... officers.” Id.

Smith contends that “because the officers’ commands that were disobeyed preceded the uses of force, a finding that the officers’ response to Mr. Smith’s disobedience was excessive does not invalidate the lawfulness of the officers’ commands.” We are not persuaded. As in Cunningham, Smith’s actions immediately preceded and precipitated what Smith alleges to be “excessive force,” force which was used only because Smith resisted the officers’ efforts to subdue and arrest him. See Cunningham, 312 F.3d at 1155. “Indeed, ... the police response was a natural consequence” of Smith’s defiant acts. Id. In contrast, Sanford involved two discrete incidents. The first skirmish was between Sanford and the animal control officer, for which she was placed under arrest. The second altercation was between Sanford and a police officer, who punched her in the face while she was handcuffed. We ruled that Sanford’s § 1983 action against the officer in no way challenged the validity of her conviction because the act of which she was convicted was not identified as her resistance to the officer’s punch. Sanford, 258 F.3d at 1118-1119. In contrast, the force in this case was specifically linked to Smith’s resistance. As was the case in Cunningham, Smith’s resistance and the officers’ restraint were “part of a single act ...” 312 F.3d at 1154. In such circumstances, Heck v. Humphrey bars relief. See id. at 1155.

Sanford, by limiting the California rule that invalidates arrests made with excessive force, ultimately stands for the unremarkable premise that “[ejxcessive force used after an arrest is made does not destroy the lawfulness of the arrest.” Sanford, 258 F.3d at 1120. Sanford does not countenance the astounding notion that any force subsequent to the commission of an act violating § 148 may serve as the basis for a § 1983 action, even if the arrest is not yet complete.

IV. CONCLUSION

We conclude that because of the California state courts’ interpretation of Cal.Penal Code § 148 and the facts of this case, a judgment in favor of Smith would necessarily imply the invalidity of his conviction. Accordingly, his action under 42 U.S.C. § 1983 is barred by Heck v. Humphrey, and the district court’s grant of summary judgment in favor of Defendants/Appellees is

AFFIRMED.

1 . Smith’s wife informed the 911 operator that her husband was unarmed and that there were no weapons in the house. She also told the 911 operator that Smith was clad in pajamas.

2 . The dissent, citing Nonnette v. Small, 316 F.3d 872 (9th Cir.2002), argues that we are required to allow Smith to proceed because he was no longer in custody when we heard his appeal and, thus, was unable to file a petition for habeas corpus under 28 U.S.C. § 2254. When we allowed Nonnette to proceed, however, we recognized that "[t]he district court ... committed no error in deciding as it did ... because habeas corpus would have been available to test the validity of the disciplinary proceeding" when it entered its decision. Id. at 877. We made an exception for Nonnette, who was challenging a prison disciplinary proceeding, because "we have statutory authority to provide such relief 'as may be just under the circumstances,' ” id. at 878 (quoting 28 U.S.C. § 2106) and, in that "instance, we conclude[d] that justice required] that we ... permit Nonnette to proceed with his § 1983 claims ... Id.

If asked to make such an exception here (something Smith has not done), we would look at the opportunity Smith had to file a habeas petition. While Nonnette had just under a year, Smith had three years — of which three months remained when the district court entered its decision dismissing the case on Heck grounds. Yet, he inexplicably failed to seek habeas relief. We, therefore, would not make an exception in his case because to permit Smith to sit out his right to file a petition for writ of habeas corpus so that he can attack his conviction by way of a § 1983 lawsuit is exactly what Heck seeks to avoid.

3 . This aspect of California law distinguishes the instant case from those regarded by the dissent as conflicting with our opinion. In Nelson v. Jashurek, 109 F.3d 142 (3rd Cir.1997), Nelson was allowed to proceed on a § 1983 claim, despite having an outstanding conviction for resisting Jashureck's arrest, because in Pennsylvania “a finding that Jashu-reck used excessive 'substantial force’ would not imply that the arrest was unlawful ...” Nelson, 109 F.3d at 145 (internal quotation marks in original). Similarly, in Martinez v. City of Albuquerque, 184 F.3d 1123 (10th Cir.1999), Martinez was allowed to proceed with a § 1983 claim "to the extent ... [it] d[id] not challenge the lawfulness of his arrest ... [under New Mexico law].” Martinez, 184 F.3d at 1125 (emphasis in original). Finally, in Robinson v. Poe, 272 F.3d 921 (7th Cir.2001), a § 1983 action asserting that Robinson was arrested with excessive force was not barred by Neck because, under Illinois law, "[p]olice might well use excessive force in effecting a perfectly lawful arrest.” Robinson, 272 F.3d at 923.

4 . CALJIC 16.110. Performing or Discharging Duties of Officer—

Burden of Proof

In a prosecution for violation of [], the People have the burden of proving beyond a reasonable doubt that the peace officer was [engaged in the performance of [his] [her] duties] [or] [discharging or attempting to discharge a duty of[his] [her] office].

A peace officer is not [engaged, in the performance of [his] [her] duties] [or] [discharging or attempting to discharge a duty of [his][her] office] if [he] [she] [makes or attempts to malte an unlawful [arrest] [detention]] [or] [uses unreasonable or excessive force in making or attempting to make the [arrest] [detention]].

(emphasis added).

CALJIC 16.111. Use of Excessive Force by Officer

A peace officer is not permitted to use unreasonable or excessive force [in making or attempting to make an otherwise lawful arrest] [in detaining or attempting to detain a person for questioning].

If an officer does use unreasonable or excessive force [in making or attempting to make an arrest] [in detaining or attempting to detain a person for questioning], the person being [arrested] [detained] may lawfully use reasonable force to protect [himself] [herself].

Thus, if you find that the officer used unreasonable or excessive force [in making or attempting to make the arrest] [in making or attempting to make the detention] in question, and that the defendant used only reasonable force to protect[himself] [herself], the defendant is not guilty of the crime charged [in Count[s]] [or of any lesser included offense].