Lemos v. Cnty. of Sonoma

• Decision Date: 16 July 2021
• Docket Number: No. 19-15222,19-15222
• Citation: 5 F.4th 979
• Parties: Gabbi LEMOS, Plaintiff-Appellant, v. COUNTY OF SONOMA, Steve Freitas, and Marcus Holton, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

5 F.4th 979

Gabbi LEMOS, Plaintiff-Appellant,

v.COUNTY OF SONOMA, Steve Freitas, and Marcus Holton, Defendants-Appellees.

No. 19-15222

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 22, 2020 San Francisco, California

Filed July 16, 2021

Izaak D. Schwaiger (argued), Schwaiger Law Firm, Sebastopol, California; John Houston Scott and Lizabeth N. de Vries, Scott Law Firm, San Francisco, California; for Plaintiff-Appellant.

Richard W. Osman (argued) and Sheila D. Crawford, Bertrand Fox Elliott Osman & Wenzel, San Francisco, California, for Defendants-Appellees.

Before: Marsha S. Berzon and Sandra S. Ikuta, Circuit Judges, and Ivan L.R. Lemelle,^* District Judge.

Dissent by Judge Berzon

LEMELLE, District Judge:

Appellant Gabbi Lemos appeals the district court's order granting appellee County of Sonoma, Sheriff Steve Freitas, and Deputy Marcus Holton's motion for summary judgment. Appellant argues that her conviction after jury trial for violations of California Penal Code § 148(a)(1) and her 42 U.S.C. § 1983 claim are not necessarily based on the same transaction, and as a result the district court erred in ruling that the § 1983 claim was barred by Heck v. Humphrey , 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994).

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On June 13, 2015, Deputy Holton, after seeing a pickup truck blocking a lane of traffic and hearing screaming, stopped at the home of Gabbi Lemos to investigate what he believed was a domestic dispute involving Karli Labruzzi and Darien Balestrini. After speaking with Balestrini, outside of the vehicle, Holton walked around to the passenger side where he encountered Labruzzi, Gabbi Lemos, Lemos's mother, and Lemos's sister. Holton asked Lemos, her mother, and sister to step away from the vehicle so that Holton could speak with Labruzzi.

While speaking with Labruzzi, Holton attempted to open the truck door. Lemos then inserted herself between Holton and the open truck door while pointing her finger at Holton and yelling that Holton was not allowed to go in the truck. Holton then pushed Lemos away from him with his right hand. After closing the truck door and repeatedly ordering Lemos, Lemos's mother and Lemos's sister to calm down to which the parties did not comply, Holton requested backup.

Following backup's arrival, Lemos and others continued to be uncooperative. Holton then separated Lemos's mother from the group to explain the investigation, but Lemos's mother returned to the group and continued to be uncooperative. Subsequently, Lemos's mother told Lemos to go into the house at which point Lemos turned to walk toward the house. As Lemos walked past Holton, Holton told her, "Hey, come here. Hey." Lemos did not respond and continued to walk away. Holton then ran up behind Lemos, grabbed her, and brought her to the ground.

On November 12, 2015, Lemos filed a complaint in the district court asserting an excessive force claim under 42 U.S.C. § 1983 arising out of the June 13, 2015 incident. Lemos claimed Holton used excessive force in stopping her from fleeing as he attempted to arrest her. On April 18, 2016, the district court stayed the federal action during pendency of state criminal proceedings against Lemos, in which Lemos had been charged with resisting, obstructing, or delaying a peace officer in violation of California Penal Code § 148(a)(1).¹

On August 31, 2016, a jury was instructed Lemos could be found guilty of violating California Penal Code § 148(a)(1). The jury was instructed to find each of the following elements beyond a reasonable doubt: (1) "Deputy Marcus Holton was a peace officer lawfully performing or attempting to perform his duties as a peace officer," (2) "[Lemos] willfully resisted, obstructed or delayed Deputy Marcus Holton in the performance or attempted performance of those duties," and (3) "[w]hen [Lemos] acted, she knew, or reasonably should have known, that Deputy Marcus Holton was a peace officer performing or attempting to perform his duties." As to the first element, the jury was instructed that "[a] peace officer is not lawfully performing his or her duties if he or she is unlawfully arresting or detaining someone or using unreasonable or excessive force in his or her duties." With respect to the second element, the jury was instructed that Lemos could be found guilty based on four theories of liability: Lemos (1) made physical contact with Holton as he was trying to open the truck door; (2) placed herself between Holton and Ms. Labruzzi; (3) blocked Holton from opening the truck door and seeing or speaking to Ms. Labruzzi; or (4) pulled away from Holton when Holton attempted to grab her. Lemos was convicted by a jury for violating California Penal Code Section 148(a)(1) when Lemos resisted, delayed, or obstructed Deputy Holden while he was conducting his duties as an officer on June 13, 2015.

On May 24, 2018, the district court lifted the stay. On November 8, 2018, all defendants filed a motion for summary judgment. The district court issued its order granting defendant's motion for summary judgment on January 29, 2019. Lemos timely filed a notice of appeal.

JURISDICTION AND STANDARD OF REVIEW

The district court had jurisdiction pursuant to 28 U.S.C. § 1331. We have appellate jurisdiction pursuant to 28 U.S.C. § 1291.

We review de novo the district court's grant of summary judgment. Bagdadi v. Nazar , 84 F.3d 1194, 1197 (9th Cir. 1996). We must determine, "viewing the evidence in the light most favorable to the nonmoving party, whether genuine issues of material fact exist." Id. We will affirm only if no "reasonable jury viewing the summary judgment record could find by a preponderance of the evidence that the plaintiff is entitled to a favorable verdict." Narayan v. EGL, Inc. , 616 F.3d 895, 899 (9th Cir. 2010). "If a rational trier of fact could resolve a genuine issue of material fact in the nonmoving party's favor," summary judgment is inappropriate. Bravo v. City of Santa Maria , 665 F.3d 1076, 1083 (9th Cir. 2011). "[C]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from facts are jury functions, not those of a judge." Id. (quoting Nelson v. City of Davis , 571 F.3d 924, 927 (9th Cir. 2009) ).

Lemos contends that jurors in the criminal trial were instructed she could be found guilty of violating § 148(a)(1) based on four theories of liability, and the jury was given a general verdict form. The verdict form did not indicate whether the jury found Lemos guilty of one or all of the instances given in the jury instructions. Lemos contends that if the jury did not find her guilty of pulling away from Holton when he attempted to restrain her (the fourth theory of liability), then her § 1983 claim is not barred by Heck .

Excessive force claims are analyzed under the objective reasonableness standard of the Fourth Amendment as enunciated in Graham v. Connor , 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), and Tennessee v. Garner , 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). See Blanford v. Sacramento Cnty. , 406 F.3d 1110, 1115 (9th Cir. 2005). For assigned reasons below, we discern no material factual disputes from this record. The sole issue remaining on appeal is a basic Heck question—whether success on Lemos's § 1983 excessive force claim "would ‘necessarily imply’ or ‘demonstrate’ the invalidity" of Lemos's state court conviction under California Penal Code § 148(a)(1).

THE HECK PRECLUSION DOCTRINE

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. 477, 486, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). Under Heck , "[w]hen a plaintiff who has been convicted of a crime under state law 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.’ " Hooper v. Cnty. of San Diego , 629 F.3d 1127, 1130 (9th Cir. 2011) (quoting Heck , 512 U.S. at 487, 114 S.Ct. 2364 ). If it would, the civil action is barred. Id. ; cf. Yount v. City of Sacramento , 43 Cal. 4th 885, 902, 76 Cal.Rptr.3d 787, 183 P.3d 471 (2008) (extending Heck to California state law claim for battery). Heck instructs 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) (per curiam). However, a plaintiff's allegation of excessive force by a police officer is not barred by Heck if the officer's conduct is "distinct temporally or spatially from the factual basis for the [plaintiff's] conviction." Beets v. Cnty. of Los Angeles , 669 F.3d 1038, 1042 (9th Cir. 2012) (citing Smith v. City of Hemet , 394 F.3d 689, 699 (9th Cir. 2005) (en banc)).

In Beets , we rejected an attempt to separate a deputy's action from the criminal activity underlying the § 1983 plaintiffs' excessive-force claim. The § 1983 plaintiffs in Beets , like Lemos here, argued that there were several possible factual bases...