394 F.3d 689 (9th Cir. 2005), 02-56445, Smith v. City of Hemet

Docket Nº:02-56445.
Citation:394 F.3d 689
Party Name:Thomas SMITH, Plaintiff-Appellant, v. CITY OF HEMET, a municipal corporation; Hemet Police Department; Lee Evanson; Dave Quinn; Aaron Medina; Daniel Reinbolt; Trainer; Nate Miller; Peter Hewitt, Defendants-Appellees.
Case Date:January 10, 2005
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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394 F.3d 689 (9th Cir. 2005)

Thomas SMITH, Plaintiff-Appellant,


CITY OF HEMET, a municipal corporation; Hemet Police Department; Lee Evanson; Dave Quinn; Aaron Medina; Daniel Reinbolt; Trainer; Nate Miller; Peter Hewitt, Defendants-Appellees.

No. 02-56445.

United States Court of Appeals, Ninth Circuit

January 10, 2005

Argued and Submitted Oct. 14, 2004.

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Robert Mann, Esq. and Donald W. Cook, Esq., Los Angeles, CA, for the plaintiff-appellant.

Julie H. Biggs, City Attorney, Hemet, CA; Elizabeth R. Feffer, Esq., Burke, Williams & Sorensen, LLP, Los Angeles, CA, for the defendants-appellees.

Appeal from the United States District Court for the Central District of California; Virginia A. Phillips, District Judge, Presiding. D.C. No. CV-00-00811-VAP.



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REINHARDT, Circuit Judge.

We took this case en banc to clarify the law regarding whether, under Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), a § 1983 action for excessive force is necessarily barred by a plaintiff's conviction under California Penal Code § 148(a) (1) for willfully resisting, delaying, or obstructing a peace officer in the performance of his duties. We also take this occasion to bring our circuit into line with the others with respect to the definition of "deadly force."

Thomas Smith appeals the district court's order granting the defendants' summary judgment motion in his § 1983 action for excessive use of force. We reverse and hold that Smith's § 1983 action is not barred by Heck because the excessive force may have been employed against him subsequent to the time he engaged in the conduct that constituted the basis for his conviction. In such circumstance, Smith's § 1983 action neither demonstrates nor necessarily implies the invalidity of his conviction. We also hold that in this circuit "deadly force" has the same meaning as it does in the other circuits that have defined the term, a definition that finds its origin in the Model Penal Code. We define deadly force as force that creates a substantial risk of causing death or serious bodily injury. We reverse the grant of summary judgment and remand to the district court.


The facts of the encounter between Smith and the police are not seriously disputed. To the extent that there is a difference between the parties, however, we look to the version most favorable to the plaintiff, the non-moving party. On the night of August 16, 1999, Smith's wife placed an emergency phone call to the Hemet Police Department ("Department") reporting that her husband "was hitting her and/or was physical with her." Mrs. Smith informed emergency personnel that her husband did not have a gun, there were no weapons in the house, and he was clad in his pajamas.

Officer Daniel Reinbolt was the first officer to arrive at the house in order to investigate the incident. He observed Smith standing on his front porch and "noticed Smith's hands in his pockets." The officer announced himself and instructed Smith to remove his hands from his pockets. Smith refused, responding with expletives and directing Officer Reinbolt to come to him. Officer Reinbolt informed Smith that he would approach, but only after Smith removed his hands from his pockets and showed that he had no weapons. Smith again refused to remove his hands from his pockets and instead entered his home.

After Officer Reinbolt advised dispatch of what had transpired, Smith reemerged onto the porch with his hands still in his pockets. Officer Reinbolt again instructed Smith to show his hands. Smith complied with this instruction, but then refused to follow an order to "put his hands on his head and walk towards [the officer's] voice[.]" Instead, Smith again asked 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, including a canine unit. Officer David Quinn, a canine handler with the Department, arrived shortly thereafter with "Quando," a police canine. Officer Aaron Medina also responded to one of the assistance calls.

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Officer Quinn instructed Smith to turn around and place his hands on his head. Smith again refused to obey the order, despite being informed that Quando could be sent to subdue him and might bite. Without further warning, Officer Quinn sprayed Smith in the face with pepper spray. Smith responded with expletives and attempted to reenter his residence, but the door had been locked by Mrs. Smith. Several more officers then moved onto the porch, grabbed Smith from behind, slammed him against the door, and threw him down on the porch; Officer Quinn ordered the canine to attack him. Quando bit Smith on his right shoulder and neck area. At some point, either before or after the order to attack, the dog sank his teeth into Smith's arm and clung to it.

With at least four officers surrounding him and Quando's teeth sunk into his shoulder and neck, Smith agreed to comply with the officers' orders and submit to arrest. Although Smith submitted, he admits that he was "curled up" in a fetal position in an attempt to shield himself from the dog and that one of his hands was "tucked in somewhere," still out of the officers' view. As one of the officers attempted to secure both arms, Quando was instructed by Officer Quinn to bite Smith a second time; this time the dog bit Smith on his left side and shoulder blade. Upon Officer Quinn's order, Quando ultimately retreated, and the officers dragged Smith off the porch, face down. Once off the porch, Smith continued to shield one of his arms from the dog's attack. Officer Quinn then ordered Quando to bite Smith a third time. This time, the dog bit into Smith's buttock. While all this was transpiring, Smith was pepper-sprayed at least four times, at least two of which sprayings occurred after the police dog had seized him and broken his skin, and at least one after the officers had pinned him to the ground.

Eventually, the officers secured the handcuffs on both of Smith's arms. Officer Reinbolt then washed Smith's eyes out with water from a nearby hose, but did not cleanse the wounds he received as a result of the dog bites.1 Paramedics arrived shortly thereafter and attended to Smith's injuries.

Smith pled guilty in California Superior Court to a violation of California Penal Code § 148(a) (1).2 Section 148(a) (1) provides: "Every person who willfully resists, delays, or obstructs any ... peace officer ... in the discharge or attempt to discharge any duty of his or her office or employment, ... shall be [guilty of a misdemeanor]." Smith was sentenced to 36 months' probation.

Smith filed a complaint under 42 U.S.C. § 1983 in the District Court, alleging that the officers used excessive force when they sprayed him with pepper spray and sicced the police canine on him. The defendants moved for summary judgment on several grounds, among them that Heck v. Humphrey bars Smith's § 1983 action and that the challenged use of force--the pepper spray and police dog--was appropriate

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and reasonable under the circumstances. The district court granted summary judgment on the basis that Heck barred Smith's § 1983 action. Judgment for the defendants was entered, and Smith filed a timely Notice of Appeal.


A. The Alleged Heck v. Humphrey Bar

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 486-87, 114 S.Ct. 2364. Heck says 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). 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 conviction or sentence under § 148(a) (1). Heck, 512 U.S. at 487, 114 S.Ct. 2364; see also Cunningham v. Gates, 312 F.3d 1148, 1153-54 (9th Cir. 2003) (as amended) (Heck bars suits "based on theories that 'necessarily imply the invalidity of[the plaintiff's] convictions or sentences.' ") (quoting Heck, 512 U.S. at 487, 114 S.Ct. 2364). We conclude that success in Smith's action would not give rise to any such necessary implication.

Under California Penal Code § 148(a) (1), "[t]he legal elements of a violation ... 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...

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