Lemos v. Cnty. of Sonoma

• Decision Date: 19 July 2022
• Docket Number: 19-15222
• Citation: 40 F.4th 1002
• Parties: Gabbi LEMOS, Plaintiff-Appellant, v. COUNTY OF SONOMA ; Steve Freitas; Marcus Holton, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

40 F.4th 1002

Gabbi LEMOS, Plaintiff-Appellant,

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

No. 19-15222

United States Court of Appeals, Ninth Circuit.

Argued and Submitted En Banc March 23, 2022 Pasadena, California

Filed July 19, 2022

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 Elliot Osman & Wenzel, San Francisco, California, for Defendants-Appellees.

Before: Mary H. Murguia, Chief Judge, and William A. Fletcher, Marsha S. Berzon, Consuelo M. Callahan, Andrew D. Hurwitz, John B. Owens, Michelle T. Friedland, Eric D. Miller, Kenneth K. Lee, Daniel A. Bress and Danielle J. Forrest, Circuit Judges.

Dissent by Judge Callahan

MILLER, Circuit Judge:

Gabrielle Lemos appeals from the district court's dismissal of her claim under 42 U.S.C. § 1983 alleging that a sheriff's deputy used excessive force in arresting her. The district court held that Lemos's claim was barred by Heck v. Humphrey , 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), because Lemos was convicted of willfully resisting, delaying, or obstructing the deputy during the same interaction. Under Heck , a section 1983 action may not proceed if its success would "necessarily require the plaintiff to prove the unlawfulness of his conviction." Id. at 486, 114 S.Ct. 2364. But because the record does not show that Lemos's section 1983 action necessarily rests on the same event as her criminal conviction, success in the former would not necessarily imply the invalidity of the latter. We therefore reverse and remand for further proceedings.

Late in the evening of June 13, 2015, Sonoma County Sheriff's Deputy Marcus Holton was on patrol in Petaluma, California, when he came upon a pickup truck with a large trailer stopped in the road in front of a house. Hearing raised voices and a reference to a "fight," he got out of his car to investigate. His body camera recorded what happened next.

Holton approached the driver's side of the truck and asked the driver to leave the vehicle. The driver complied and said that the passenger, Karli Labruzzi, was his girlfriend, that she was drunk, and that she was upset because she had lost her phone. Holton then walked around the truck to confirm the story with Labruzzi. She was leaning out the window and talking to a group of three women standing nearby: her two sisters (one of whom was Lemos) and their mother.

When Holton asked, "Is everything ok?," all four women began yelling at him. After further discussion, Holton said, "I'm not going to leave until I've resolved this," and they answered, "Nothing to resolve." Holton then opened the truck door to see if Labruzzi was injured, at which point Lemos—who would later explain that she had "just graduated from high school" and had consumed "three Jack Daniels and Cokes" earlier in the evening—stepped between him and the door, pointed her finger at him, and shouted, "You're not allowed to do that!" Holton told Lemos to step back and pushed her hand away. After Lemos's mother moved her away, Holton closed the door. The women protested, with Lemos insisting, "You cannot go in the car! You have to have a warrant!" Holton asked them to calm down so that he could explain why he wished to speak to Labruzzi. When they did not do so, he called for backup. The responding deputy, Robert Dillion, later said that he could hear the women's screams over the radio.

Labruzzi eventually got out of the truck. During the next few minutes, all four women continued to remonstrate with Holton, arguing that he should not have opened the door of the truck and that the investigation should be conducted, in Lemos's words, by "a woman cop." After Dillion arrived, Holton separated Lemos's mother from her daughters to explain that he was trying to investigate whether Labruzzi had been the victim of a "domestic incident." Dillion, meanwhile, made repeated but futile efforts to instruct the daughters, "I need one person to talk at a time." They responded by concurrently requesting "a woman cop," claiming to be sober, accusing Holton of "assault," and disparaging Holton and his mother in sexual terms.

Lemos's mother was apparently not convinced by Holton's explanations and twice returned to where her daughters were standing. The second time she returned, some five minutes after the initial encounter at the truck door, she told Lemos to go inside the house. Lemos began to do so, walking past Holton and ignoring his orders to stop. Holton ran after Lemos and grabbed her wrist in an attempt to handcuff her, but she pulled away. He then tackled her and placed her under arrest. Later that night, Lemos was taken to a hospital, where she was treated and released for injuries she sustained when tackled.

Lemos brought this action against Holton, Sonoma County Sheriff Steve Freitas, and Sonoma County, alleging that Holton had violated her Fourth Amendment right to be free from excessive force. (Lemos also asserted a claim under the First Amendment, but she has now abandoned it.) Soon thereafter, the Sonoma County District Attorney charged Lemos with resisting, delaying, or obstructing a peace officer, in violation of California Penal Code section 148(a)(1). The district court stayed proceedings in the civil action while the criminal prosecution was pending.

The criminal case proceeded to a jury trial. The jury was instructed that to find Lemos guilty, it needed to find beyond a reasonable doubt that Holton was "lawfully performing or attempting to perform his duties as a peace officer," that Lemos "knew, or reasonably should have known, that [he] was a peace officer performing or attempting to perform his duties," and that she "willfully resisted, obstructed, or delayed [him] in the performance or attempted performance of those duties." The jury was further 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."

The instructions stated that the jury could find Lemos guilty based on any one of four acts: (1) if she "made physical contact with [Holton] as he was trying to open the truck door"; (2) if she "placed herself between" Holton and Labruzzi; (3) if she "blocked [Holton] from opening the truck door and seeing or speaking with" Labruzzi; or (4) if she "pulled away when [Holton] attempted to grab her" (just before he tackled her). Although the instructions required the jury to agree unanimously on which act Lemos committed, the verdict form did not require the jury to identify a specific act. The jury found Lemos guilty.

Once the criminal proceedings concluded, the district court lifted its stay. The parties agreed that the defendants would file a motion for summary judgment limited to the argument that Lemos's action was barred by Heck .

The district court granted summary judgment to the defendants. The court reasoned that "[g]iven [Lemos's] and her cohorts' continuous screaming and provoking," there was "no temporal or spatial distinction or other separation between the conduct for which Lemos was convicted, by a jury, and the conduct which forms the basis of her Section 1983 claim." The court concluded that "Holton's actions ... form[ed] one uninterrupted interaction and the jury's finding that he did not use excessive force would be inconsistent with a Section 1983 claim based on an event from that same encounter."

A divided three-judge panel of this court affirmed. Lemos v. County of Sonoma , 5 F.4th 979 (9th Cir. 2021) ; see id. at 987 (Berzon, J., dissenting). We voted to rehear the case en banc. Lemos v. County of Sonoma , 22 F.4th 1179 (9th Cir. 2022). We review the district court's grant of summary judgment de novo. Stephens v. Union Pac. R.R. Co. , 935 F.3d 852, 854 (9th Cir. 2019).

We begin by reviewing the preclusion doctrine established in Heck . In that case, the plaintiff had been convicted of voluntary manslaughter and, while serving his sentence, brought a section 1983 action against prosecutors and a police officer who had allegedly engaged in unlawful acts that resulted in his conviction. 512 U.S. at 478–79, 114 S.Ct. 2364. The Supreme Court held that the action could not proceed because "civil tort actions are not appropriate vehicles for challenging the validity of outstanding criminal judgments." Id. at 486, 114 S.Ct. 2364. Under Heck , a section 1983 action is barred if success in the action would "necessarily require the plaintiff to prove the unlawfulness of his conviction or confinement." Id. But if a criminal conviction has already been reversed, expunged, or otherwise set aside, then a section 1983 action may proceed. Id. at 486–87, 114 S.Ct. 2364.

Heck thus requires us to "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 unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated." 512 U.S. at 487, 114 S.Ct. 2364. By contrast, if "the plaintiff's action, even if successful, 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." Id. (footnote omitted).

The Supreme Court has since emphasized that it was "careful in Heck to stress the importance of the term ‘necessarily,’ " as, for example, when the Court "acknowledged that an inmate could bring a challenge to the lawfulness of a search pursuant to § 1983 in the first instance, even if the search revealed evidence used to convict the inmate at trial, because success on the merits would not ‘necessarily imply that the plaintiff's conviction was unlawful.’ " Nelson v. Campbell , 541 U.S. 637,...