Kristy Beets v. County of Los Angeles

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KRISTY BEETS; GLENN ALLEN ROSE, 
as successors in interest to Glenn
Patrick Rose and as individuals,
Plaintiffs-Appellants, No. 10-55036
v.
 D.C. No.
2:09-cv-00555-R-SS
COUNTY OF LOS ANGELES, a
political subdivision of the State OPINION
of California; STEVEN WINTER, an
individual,
Defendants-Appellees.

Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Argued and Submitted
October 13, 2011—Pasadena, California
Filed February 10, 2012
Before: Ferdinand F. Fernandez and Consuelo M. Callahan,
Circuit Judges, and Ralph R. Erickson,
Chief District Judge.*
Opinion by Judge Callahan
*The Honorable Ralph R. Erickson, Chief District Judge for the U.S.
District Court for North Dakota, sitting by designation.
1537
1540 BEETS v. COUNTY OF LOS ANGELES
COUNSEL
Dale K. Galipo of Woodland Hills, California, for the
plaintiffs-appellants.
BEETS v. COUNTY OF LOS ANGELES 1541
David D. Lawrence and Jin S. Choi, Lawrence, Beach, Allen
& Choi, PC, of Glendale, California, for the defendants-
appellees.
OPINION
CALLAHAN, Circuit Judge:
Kristy Beets and Glenn Allen Rose (“plaintiffs”), the par-
ents of Glenn Patrick Rose (sometimes referred to as “GPR”)
filed an action pursuant to 42 U.S.C. § 1983 alleging that
Deputy Winter used excessive force when he shot and killed
GPR. The district court dismissed the action on the basis that
pursuant to Heck v. Humphrey, 512 U.S. 477 (1994), the con-
viction of GPR’s companion, Ms. Morales, on several counts
including aiding and abetting in the assault on a peace officer
with a deadly weapon barred plaintiffs from attempting to
show that Deputy Winter used excessive force.
We hold that Heck bars plaintiffs’ suit. Plaintiffs seek to
show that Deputy Winter used excessive force, but the jury
that convicted GPR’s accomplice has already determined that
the deputy acted within the scope of his employment and did
not use excessive force. Accordingly, a verdict in plaintiffs’
favor would tend to undermine Morales’ conviction. More-
over, Morales, GPR’s accomplice, challenged the propriety of
Deputy Winter’s actions in her criminal trial, her interests in
doing so were in no way inconsistent with plaintiffs’ interests,
and Morales was convicted by a jury. Under these circum-
stances, plaintiffs’ § 1983 action is barred by Heck.
I
On May 13, 2008, Glenn Patrick Rose and his companion,
Ms. Morales, fled from Los Angeles Sheriffs and California
Highway Patrol (CHP) Officers in a stolen white Honda. GPR
1542 BEETS v. COUNTY OF LOS ANGELES
turned into an alley, parked, and GPR and Morales ran to a
nearby maroon pickup truck and entered the truck. Deputy
Sheriff Winter and three other officers attempted to arrest
GPR and Morales as they entered the pickup truck. However,
they fought back and were able to enter the truck, start the
engine, and drive it out of the parking space.
GPR drove the truck forward, colliding with a CHP patrol
car, possibly injuring the officers located on the other side of
the car. He then reversed direction and backed rapidly in the
direction of Deputy Winter. Deputy Winter, fearing for his
life, fired at GPR and killed him. There is evidence in the
record that at least two other officers also fired at GPR and
Morales. The record further indicates that the truck ceased
moving shortly after GPR was shot by Deputy Winter.
Morales was arrested. She was charged in an eight count
indictment alleging the unlawful driving or taking of a vehi-
cle, evading an officer, and three counts of assault upon a
peace officer. Count two alleged that Morales:
did willfully and unlawfully commit an assault with
a deadly weapon and instrument and by force likely
to produce great bodily injury upon the person of S.
WINTER when [Morales] knew or should have
known that said person was a peace officer then and
there engaged in the performance of his/her duties.
Morales was convicted on at least five of the counts, includ-
ing the three counts of assault with a deadly weapon.
Morales appealed her convictions to the California Appel-
late Court, 2nd Appellate District. In her brief, she argued that
she “was charged and convicted of, among other things, three
counts of assault with a deadly weapon (i.e., the vehicle) on
a peace officer” but that she did not have “the mens rea neces-
sary to commit the assaults, or aid and abet the assaults, or aid
and abet a crime that naturally and probably would result in
BEETS v. COUNTY OF LOS ANGELES 1543
the assaults.” The California Court of Appeal affirmed Mora-
les’ conviction, and the California Supreme Court denied her
petition for review.
Kristy Beets and Glenn Allen Rose filed their civil action
in the United States District Court for the Central District of
California. They brought their action in their own rights and
as successors in interest to GPR, their son. They alleged that
Deputy Winter used excessive deadly force against GPR in
violation of his and their civil and constitutional rights.
Deputy Winter and the other defendants (appellees) moved
for judgment on the pleading pursuant to Fed. R. Civ. P. 12(c)
on the ground that the action was barred by Heck. The District
Court held a hearing on the motion and explained:
The relevant question is whether success in the
Section 1983 suit would necessarily imply or dem-
onstrate the invalidity of the earlier conviction or
sentence.
In this case, if plaintiffs prevailed on their claims,
such a result would be fundamentally inconsistent
with Ms. Morales’ criminal conviction. It would nec-
essarily imply the invalidity of her conviction and
the invalidity of the jury’s determination on which
her conviction is based.
Morales’ conviction for felony resisting arrest and
assault with a deadly weapon on a peace officer were
under an aiding and abetting theory. As such, the
jury had to have found that Rose committed those
crimes.
The jury was specifically instructed that it could
not find that Rose committed the crimes unless it
determined that Officer Winter was in the lawful
performance of his duties and did not use excessive
1544 BEETS v. COUNTY OF LOS ANGELES
force. As such, Morales’ conviction necessarily
rested on the jury’s findings as to the actions of Dep-
uty Winter with respect to Rose. That is, the jury
found that Deputy Winter was in the lawful perfor-
mance of his duties and did not use excessive force.
The court dismissed the action, holding:
Plaintiffs’ causes of action under 42 U.S.C. § 1983
are barred by the criminal conviction of Sarah
Rebecca Morales in that success on the federal claim
by Plaintiffs in the instant action would necessarily
imply the invalidity of the criminal conviction of
Ms. Morales. Heck v. Humphrey, 512 U.S. 477
(1994); Smith v. City of Hemet, 394 F.3d 689 (9th
Cir. 2005).
On January 7, 2010, plaintiffs filed a timely notice of
appeal. We have jurisdiction pursuant to 28 U.S.C. § 1291.1
II
We review a grant of a motion to dismiss de novo. Platt
Elec. Supply, Inc. v. EOFF Elec., Inc., 522 F.3d 1049, 1053-
54 (9th Cir. 2008); Stanley v. Trs. of the Cal. State Univ., 433
F.3d 1129, 1133 (9th Cir. 2006). Here, whether plaintiffs’
civil action is barred by Heck is a question of law, which is
subject to de novo review. Furthermore, it controls plaintiffs’
right to amend their complaint. If their claims are barred by
Heck, filing an amended complaint would be a futile act. If
their claims are not barred, they are entitled to file an
amended complaint, if an amendment is deemed necessary or
advisable.
1
The District Court declined to exercise jurisdiction over appellants’
remaining state law claims and dismissed them without prejudice.
BEETS v. COUNTY OF LOS ANGELES 1545
III
Plaintiffs raise two issues on appeal. First, they argue that
Heck should be strictly interpreted and may not be applied to
§ 1983 actions where the plaintiffs have not been convicted or
charged with any crimes. Second, they argue even if Heck
were applicable, it would not bar their civil action. They argue
that they should be allowed to show that Deputy Winter had
managed to move to one side of the truck when he shot GPR
through a side window, and accordingly Deputy Winter was
no longer in danger when he shot, and the shooting occurred
subsequent to GPR’s criminal activity. We address their argu-
ments in reverse order because our conclusion that Heck
would otherwise bar this action focuses our consideration of
whether the preclusion extends to these plaintiffs who were
not criminally prosecuted or convicted.
A. The underlying facts are within the coverage of
Heck.
1. The Heck preclusion doctrine
[1] What has come to be known as the “Heck preclusion
doctrine” or the “Heck bar” is based on the following para-
graph in the Supreme Court’s opinion:
We hold that, in order to recover damages for alleg-
edly unconstitutional conviction or imprisonment, or
for other harm caused by actions whose unlawful-
ness 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, 28 U.S.C. § 2254. A
claim for damages bearing that relationship to a con-
viction or sentence that has not been so invalidated
1546 BEETS v. COUNTY OF LOS ANGELES
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 com-
plaint must be dismissed unless the plaintiff can
demonstrate that the conviction or sentence has
already been invalidated. But if the district court
determines that the plaintiff ’s action, even if suc-
cessful, will not demonstrate the invalidity of any
outstanding criminal judgment against the plaintiff,
the action should be allowed to proceed, in the
absence of some other bar to the suit.
512 U.S. at 486-87 (footnotes omitted).
In Smith v. City of Hemet, 394 F.3d 689, 695 (9th Cir.
2005)(en banc), we recognized that “ ‘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.’
Smithart v. Towery, 79 F.3d 951, 952 (9th Cir.1996).” Conse-
quently, “the relevant question is whether success in a subse-
quent § 1983 suit would ‘necessarily imply’ or ‘demonstrate’
the invalidity of the earlier conviction or sentence . . . .” Id.
quoting Heck, 512 U.S. at 487.
[2] In addressing this question in City of Hemet, we recog-
nized that an allegation of excessive force by a police officer
would not be barred by Heck if it were distinct temporally or
spatially from the factual basis for the person’s conviction.
394 F.3d at 699. We noted that “Smith would be allowed to
bring a § 1983 action, however, if the use of excessive force
occurred subsequent to the conduct on which his conviction
was based.” Id. at 698. The critical element remains whether
the plaintiff ’s action, if successful, will “demonstrate the
invalidity of any outstanding criminal judgment.” Heck, 512
U.S. at 486-87.
BEETS v. COUNTY OF LOS ANGELES 1547
2. Deputy Winter’s actions cannot be separated from
GPR’s and Morales’ criminal activity
On appeal, plaintiffs seek to assert that “Deputy Winter
fired at the decedent when the truck was not moving in the
direction of Deputy Winter or any other officer and at a time
when the decedent was not resisting by force and when no
assault on any officer was taking place.” This assertion was
not advanced in the district court, is not supported by any evi-
dence in the record, and its legal assertions are incorrect.
It does not appear that plaintiffs’ attempt to separate Dep-
uty Winter’s action from GPR’s criminal activity was pre-
sented to the district court. There is no mention of this argu-
ment in plaintiffs’ opposition to the defendants’ motion to dis-
miss. At the hearing on the motion, plaintiffs’ counsel
referred to Deputy Winter’s deposition and intimated that the
felony resisting of arrest happened prior to the shooting. The
deposition does state that GPR and Morales struck out at
police officers when the police tried to stop them from getting
into the pickup truck. However, Morales’ conviction for aid-
ing and abetting an assault on a police officer with a deadly
weapon concerned the subsequent use of the pickup truck.
Deputy Winter stated that the truck was “racing back” at him,
that he “had fractions of a second to do something,” and that
he “shot because I felt I was about to get run over and my life
was in danger.” Plaintiffs offered nothing in response to Dep-
uty Winter’s statement. Their failure to argue in the district
court that factually GPR was not resisting by force or assault-
ing a police officer precludes them from advancing this con-
tention on appeal.2 See Tides v. The Boeing Co., 644 F.3d 809,
2
Plaintiffs implicitly admit that they failed to make this factual argu-
ment in the district court when they justify their statement of facts in their
opening brief as including “those additional facts which Appellants
believe would cure any basis for Heck preclusion were Appellants granted
leave to amend.” Counsel cannot resurrect a case by alleging, for the first
time on appeal, unsupported facts that are contrary to the evidence in the
record.
1548 BEETS v. COUNTY OF LOS ANGELES
814 n.6 (9th Cir. 2011), cert. denied 132 S. Ct. 518 (2011)
(holding that absent special circumstances we do not review
issues not raised in the district court); Campbell v. Burt, 141
F.3d 927, 931 (9th Cir. 1998) (“appeals court will not review
an issue not raised below unless necessary to prevent manifest
injustice”); Int’l. Union of Bricklayers & Allied Craftsman
Local Union v. Martin Jaska, Inc., 752 F.2d 1401, 1404 (9th
Cir. 1985) (same).
[3] Furthermore, plaintiffs’ attempt to separate Deputy
Winter’s action from GPR’s criminal activity is not reason-
able. It is uncontroverted that GPR and Morales fled from the
authorities, physically resisted arrest when getting into the
pickup truck, rammed one police car with the pickup truck,
and then accelerated backward toward Deputy Winter. This is
overwhelming evidence that they were resisting arrest by
force and assaulting police officers. There may be some ques-
tion as to whether, after Deputy Winter fired, the truck contin-
ued to move backward or moved forward toward the police
car. There is also testimony that other officers fired at GPR.
However, all agree that it was the shooting that brought an
end to GPR’s and Morales’ criminal activity.
In Cunningham v. Gates, 312 F.3d 1148 (9th Cir. 2002), we
rejected similar attempts to separate the officers’ responses
from the criminal defendants’ activities. Cunningham and
Soly were surrounded by police after they committed an
armed robbery. Id. at 1152. Cunningham was injured and Soly
killed in the ensuing fire fight. Id. Cunningham was convicted
in state court “of three counts of attempting to murder [police]
officers by firing a weapon at them; Soly’s murder by provok-
ing the officers into shooting at the getaway car; robbery; and
burglary.” Id. Cunningham and Soly’s parents filed § 1983
actions alleging that the police used excessive force.
In an attempt to overcome the Heck barrier to his action,
Cunningham asserted a “danger creation theory:” the officers
used excessive force to deliberately create a situation that pro-
BEETS v. COUNTY OF LOS ANGELES 1549
voked him into firing. Id. at 1154. We rejected this argument
explaining:
In convicting him of felony murder, the jury neces-
sarily found that, pursuant to the jury instructions,
Cunningham’s firing at the police occurred during
the commission of a robbery. The SIS officers’ jam-
ming of the getaway car falls within the temporal
scope of Cunningham’s crime and is part of a single
act for which the jury found that Cunningham bears
responsibility. Under the jury instructions that were
given, the jury could not have convicted Cunning-
ham for attempted murder unless the jury concluded
that at the moment Cunningham fired on the SIS
officers, he knew or should have known that they
were police officers acting within the scope of their
duties. This circumstance makes it impossible for
Cunningham to prove, as he must to prevail on his
§ 1983 claim, that the police used excessive force
when they jammed the getaway car because it would
necessarily imply they were not acting within the
scope of their duties.
312 F.3d at 1154-55.
Cunningham also attempted to argue that even if the police
did not create a dangerous situation, he should be allowed to
proceed under the theory that the police used excessive force
by responding with shotgun blasts and pistol shots. Id. at
1155. The panel distinguished Smithart, 79 F.3d 951, on the
grounds that although Smithart “tried to use his truck to run
over the sheriff and state patrolman,” the alleged excessive
force by the police arose after Smithart got out of the truck
and was “without access to his ‘assault weapon.’ ” Cunning-
ham, 312 F.3d at 1155. We concluded that:
there was no break between Cunningham’s provoca-
tive act of firing on the police and the police
1550 BEETS v. COUNTY OF LOS ANGELES
response that he claims was excessive. Indeed, in
convicting Cunningham of felony murder, the jury
concluded that the police response was a natural con-
sequence of Cunningham’s provocative act. Because
the two are so closely interrelated, Cunningham’s
conviction forecloses his excessive force claim
against the SIS officers.
Id.
[4] Our reasoning in Cunningham is persuasive here. There
was no break between GPR’s assault with the pickup truck
and the police response. Deputy Winter acted during the
course of GPR’s and Morales’ criminal activity and brought
that activity to an end. Deputy Winter’s actions were “within
the temporal scope of [GPR’s and Morales’] crime and [were]
part of a single act for which the jury found that [Morales]
bears responsibility.” See id. at 1154. There was no separation
between GPR’s criminal actions and the alleged use of exces-
sive force such as existed in Smithart (alleged assault
occurred after Smithart got out of the truck) or City of Hemet
(alleged assault occurred after Smith was detained). Thus,
even were it determined that the maroon pickup truck had
come to a stop a fraction of a second before Deputy Winter
fired, the shots would remain part of the temporal scope of
GPR’s and Morales’ crimes.
3. Morales’ conviction determined that Deputy Winter
acted within the scope of his employment and did not
use excessive force
[5] The jury that convicted Morales determined that Dep-
uty Winter acted within the scope of his employment and did
not use excessive force. The instructions given on the charge
that Morales assaulted a peace officer with a deadly weapon
required that to convict Morales, the jury had to find that she
acted willfully against a police officer who was “lawfully per-
forming his duties as a peace officer,” and that the officer was
BEETS v. COUNTY OF LOS ANGELES 1551
not “using unreasonable or excessive force in his or her
duties.” Accordingly, the jury’s conviction of Morales
rejected any contention that Deputy Winter used excessive
force, and thus any recovery by the plaintiffs in this civil
action would be contrary to the jury’s determination.
[6] Plaintiffs attempt to avoid this conclusion by arguing
that there are several possible factual bases for Morales’ con-
viction and that therefore Morales’ conviction is not necessar-
ily based on the same factual basis as the alleged civil rights
violations, citing Sanford v. Motts, 258 F.3d 1117, 1118-19
(9th Cir. 2001). This argument fails on two counts. First, there
are not multiple factual bases for Morales’ conviction for aid-
ing and abetting in the assault on a police officer with a
deadly weapon. As Morales represented in her briefs to the
California Court of Appeal, her conviction for assault on a
police officer with a deadly weapon was based on her aiding
and abetting GPR in the operation of the truck. Second, San-
ford is inapplicable in light of our subsequent en banc opinion
in City of Hemet. In Sanford, the defendant pled nolo con-
tendere and we determined that “[n]othing in the record
informs us what the factual basis was for Sanford’s plea of
nolo.” Id. at 1119. Here, Morales was convicted by a jury. In
City of Hemet, we stated:
Where a defendant is charged with a single-act
offense but there are multiple acts involved each of
which could serve as the basis for a conviction, a
jury does not determine which specific act or acts
form the basis for the conviction. . . . . Thus, a jury’s
verdict necessarily determines the lawfulness of
the officers’ actions throughout the whole course
of the defendant’s conduct, and any action alleg-
ing the use of excessive force would “necessarily
imply the invalidity of his conviction.” Susag [v.
City of Lake Forest], 94 Cal. App. 4th [1401] at
1410, [(2002)].
1552 BEETS v. COUNTY OF LOS ANGELES
394 F.3d at 699 n.5 (emphasis added). In sum, the record
shows that the jury that convicted Morales determined that
Deputy Winter acted within the scope of his duties and did
not use excessive force, and that plaintiffs seek to show that
the very same act constituted excessive force. Thus, if GPR
rather than Morales had been convicted, there is no doubt that
this civil action would have to be dismissed pursuant to Heck.
Similarly, it is clear that Morales’ conviction bars her from
bringing a § 1983 action based on Deputy Winter’s action.
B. Plaintiffs’ Action in this case is barred by Heck v.
Humphrey.
[7] The remaining question is whether the Heck bar
extends to the plaintiffs in this case who were not tried or con-
victed. In City of Hemet, we reiterated our statement in Smi-
thart that pursuant to 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.” City of
Hemet, 394 F.3d at 695 (quoting Smithart, 79 F.3d at 952). As
the Supreme Court explained, the relevant question is whether
success in a subsequent § 1983 suit would “necessarily
imply” or “demonstrate” the invalidity of the earlier convic-
tion or sentence under § 148(a)(1). Heck, 512 U.S. at 487. Our
description of the Heck preclusion doctrine in City of Hemet
references “a criminal conviction,” not “the plaintiff ’s” crim-
inal conviction. See City of Hemet, 394 F.3d at 695. Our
choice of language suggests that the Heck preclusion doctrine
may apply to civil actions brought by individuals other than
the convicted criminal if such application does not otherwise
violate any constitutional principles.
[8] Here, Morales’ conviction “stands” and arises out of
the same facts as are in issue in plaintiffs’ § 1983 action. As
noted, Morales could not have been convicted of aiding and
abetting an assault on a police officer if the jury had deter-
mined that Deputy Winter used excessive force. Plaintiffs,
BEETS v. COUNTY OF LOS ANGELES 1553
however, can only recover if they prove that Deputy Winter
did use excessive force.
[9] Accordingly, this case presents a situation where to
recover in their § 1983 action, plaintiffs must prove facts that
are “fundamentally inconsistent” with Morales’ conviction.
This is clearly contrary to a number of the reasons behind the
Heck preclusion doctrine.3 Furthermore, there is nothing
inherent in the Heck preclusion doctrine as set forth in City of
Hemet that precludes its application to this case. It follows
that if the Heck preclusion doctrine does not bar plaintiffs’
action, the exception must be based on some consideration
beyond the preclusion doctrine itself.
3
The Supreme Court in explaining its ruling in Heck considered mali-
cious prosecution actions and stated:
One element that must be alleged and proved in a malicious pros-
ecution action is termination of the prior criminal proceeding in
favor of the accused. Prosser and Keeton, supra, at 874; Carpen-
ter v. Nutter, 127 Cal. 61, 59 P. 301 (1899). This requirement
“avoids parallel litigation over the issues of probable cause and
guilt . . . and it precludes the possibility of the claimant [sic] suc-
ceeding in the tort action after having been convicted in the
underlying criminal prosecution, in contravention of a strong
judicial policy against the creation of two conflicting resolutions
arising out of the same or identical transaction.” 8 S. Speiser, C.
Krause, & A. Gans, American Law of Torts § 28:5, p. 24 (1991).
Furthermore, “to permit a convicted criminal defendant to pro-
ceed with a malicious prosecution claim would permit a collateral
attack on the conviction through the vehicle of a civil suit.” Ibid.
This Court has long expressed similar concerns for finality and
consistency and has generally declined to expand opportunities
for collateral attack, see Parke v. Raley, 506 U.S. 20, 29-30
(1992); Teague v. Lane, 489 U.S. 288, 308 (1989); Rooker v.
Fidelity Trust Co., 263 U.S. 413 (1923); Voorhees v. Jackson, 10
Pet. 449 (1836). We think the hoary principle that civil tort
actions are not appropriate vehicles for challenging the validity
of outstanding criminal judgments applies to § 1983 damages
actions that necessarily require the plaintiff to prove the unlaw-
fulness of his conviction or confinement, just as it has always
applied to actions for malicious prosecution.
512 U.S. at 484-86 (footnotes and parallel citations omitted).
1554 BEETS v. COUNTY OF LOS ANGELES
Plaintiffs argue that they have not had an opportunity to lit-
igate the factual issues underlying their § 1983 action and that
Morales’ criminal proceedings should not bar them from their
day in court. They argue, citing Marquez v. Gutierrez, 51 F.
Supp. 2d 1020, 1026 (E.D. Cal. 1999), that before they can be
collaterally estopped from arguing that Deputy Winter used
excessive force, they must have had a “full and fair opportuni-
ty” to litigate the issue.
We previously confronted the possibility of extending the
Heck bar to a § 1983 action brought by a person other than the
convicted defendant in Cunningham, 312 F.3d 1148. One of
the issues present was whether the § 1983 action by the par-
ents of Soly, who had been killed in the exchange of gunfire
with the police, was barred by the criminal conviction of Cun-
ningham, Soly’s accomplice. The district court held that the
parents’ action was barred by Heck.
On appeal, we focused on the officers’ argument that the
parents were “precluded by the California common law of
privity from re-litigating issues that were already decided in
Cunningham’s trial.” 312 F.3d at 1155. “Under California
law, the collateral estoppel effect of Cunningham’s convic-
tions would prevent the Solys from pursuing their § 1983
claims if (1) the issues necessarily decided at Cunningham’s
trial are identical to the issues in the Solys’ § 1983 claims; (2)
Cunningham’s trial resulted in a judgment on the merits; and
(3) the Solys were in privity with Cunningham during his
criminal trial.” Id. The court found that the first two elements
were satisfied, but that the third was not. Id. at 1156. The
panel noted that privity required that the Solys’ interests and
Cunningham’s interests were so similar “that Cunningham
was their ‘virtual representative’.” Id. However, Soly’s inter-
ests diverged considerably from Cunningham’s because Cun-
ningham was charged with, and convicted of, murdering Soly.4
4
We noted:
BEETS v. COUNTY OF LOS ANGELES 1555
Id. The opinion concluded that “[c]ommon law privity
exceeds the bounds of common sense when a murder convic-
tion prevents not only the murderer, but his victim, from seek-
ing relief,” and that the “Solys’ § 1983 claims are not barred
under Heck or common law privity . . . .”
Here, as in Cunningham, the first two prongs are satisfied:
(1) the issue in Morales’ criminal proceeding and in this
§ 1983 action are identical — whether Deputy Winter used
excessive force; and (2) Morales’ conviction constitutes a
judgment on the merits — Deputy Winter did not use exces-
sive force.
[10] However, plaintiffs were not parties to the criminal
prosecution of Morales. Accordingly, Heck preclusion can
only apply if plaintiffs “had an identity or community of inter-
est with, and adequate representation by, the losing party in
the first action,” and under the circumstances “should reason-
ably have expected to be bound by the prior adjudication.”
Cunningham, 312 F.3d at 1156 (quoting State Farm Mut.
Auto. Ins. Co. v. Davis, 7 F.3d 180, 183 (9th Cir. 1993))
(internal quotes omitted). In making this determination, we
are guided by the Supreme Court’s instruction that “the rule
of collateral estoppel in criminal cases is not to be applied
with the hypertechnical and archaic approach of a 19th cen-
tury pleading book, but with realism and rationality.” Ashe v.
Swenson, 397 U.S. 436, 444 (1970).
The jury’s verdict rested on Cunningham’s actions, not Soly’s. It
was Cunningham’s provocation, not Soly’s, that was the focus of
Cunningham’s trial. And in convicting Cunningham of felony
murder, the jury necessarily concluded that he was a cause, not
the cause, of Soly’s death. Thus, Cunningham’s conviction does
not on its face foreclose the possibility that the police also con-
tributed to Soly’s death.
312 F.3d at 1156.
1556 BEETS v. COUNTY OF LOS ANGELES
[11] We conclude that under the particular facts of this
case, plaintiffs should reasonably have expected to be bound
by the jury’s decision in Morales’ criminal proceeding and
because a favorable decision in plaintiffs’ civil action would
undermine her conviction, the civil action is barred by Heck.
[12] Our conclusion is based on, and limited to, the partic-
ular facts in this case. First, not only was Morales GPR’s
accomplice, she was convicted of aiding an abetting GPR in
assaulting an officer with the pickup truck, a deadly weapon.
Second, a single action by Deputy Winter — shooting GPR
— is critical to both Morales’ criminal conviction and plain-
tiffs’ § 1983 action. Third, the jury in Morales’ criminal trial
was instructed that in order to convict Morales it had to find
that Deputy Winter was acting within the scope of his
employment and did not use excessive force. Thus, Morales
could only have been convicted if the jury found that Deputy
Winter did not use excessive force, but plaintiffs can only pre-
vail if they prove that he did use excessive force. Fourth,
although Morales’ reasons for urging that Deputy Winter used
excessive force are different from plaintiffs’ reasons for so
arguing, their interests do not conflict. Thus, we hold that
where more than one person engages in a concerted criminal
act during the course of which one of the criminals is killed
by the police, then when the propriety of the officer’s action
is critical to the conviction of a surviving criminal, and the
deceased’s interests in the issue are in no way inconsistent
with the surviving criminal’s interest in the issue, the “com-
munity of interest” is such that the deceased and those assert-
ing claims through the deceased may reasonably be bound by
the determination of the issue by a jury in the criminal pro-
ceeding.
Our perspective furthers the purposes cited by the Supreme
Court when it established the Heck bar. The Court noted both
the strong judicial policy against the creation of two conflict-
ing resolutions arising out of a single transaction, and its con-
cerns for finality and consistency. Heck, 512 U.S. at 484-85.
BEETS v. COUNTY OF LOS ANGELES 1557
Here, Morales was convicted of aiding and abetting in the
commission of the very crime that GPR was committing —
an assault on a police officer — when he was shot by the offi-
cer. The criminal jury that convicted Morales determined that
the officer did not use excessive force in shooting GPR.
Allowing plaintiffs’ action to proceed would allow for con-
flicting resolutions arising out of a single transaction and
undermine consistency and finality.
IV
[13] Because we find that: (1) the shooting of GPR was
“within the temporal scope of [GPR’s and Morales’] crime,”
Cunningham, 312 F.3d at 1154; (2) the shooting of GPR was
specifically considered by the criminal jury that convicted
Morales and was determined not to constitute excessive force;
and (3) under the particular facts of this case there is a suffi-
cient community of interest between plaintiffs and Morales to
bind plaintiffs to the criminal jury’s finding, the district
court’s dismissal of this civil action as barred by Heck v.
Humphrey, 512 U.S. 477, is AFFIRMED.