A recurring theme in California criminal defense is the “resisting” charge – either simple resistance under § 148 or “forcible” resistance under § 69 – filed against individuals who are themselves victims of excessive force by law enforcement. A conviction for such a charge has the potential to act as a barrier to civil liability for the officer under the doctrine of Heck v. Humphrey (1994) 512 U.S. 477. But not all “resisting” cases are created equal, in terms of their effect on civil liability for an aggressive officer. Some fact patterns, and some tactics in handling the criminal case, are more likely to preserve causes of action for excessive force.
Heck holds that a claim under 42 U.S.C. § 1983 will be barred if success in that action would “necessarily require” the plaintiff to show the unlawfulness of his or her criminal conviction. (512 U.S. at p. 486.) But as explained in the recent en banc opinion in Lemos v. County of Sonoma (9th Cir. July 19, 2022) No. 19-15222, determining whether a conviction creates a barrier to liability requires close attention to what the bases could have been for the conviction and what was actually determined in the criminal case. As the Lemos dissent puts it, there is an “escape hatch to Heck” in the ambiguities of some cases. (Slip opn. at * 16.)
The “escape hatch” is that an allegation of excessive force will not be Heck barred if the problematic conduct of the officer is distinct temporally or spatially from the factual basis for the resisting conviction, such that success in the 1983 action does not “necessarily” require showing that the conviction was improper. This scenario is most likely to arise when there is a series of interactions between the defendant and the officer that could potentially give rise to the resisting charge, and where the officer’s use of excessive force did not necessarily occur at the same time and place as the resisting.
For example, in Lemos, the jury was instructed that four different actions by the defendant could be the basis for “resisting.” The jury’s general verdict of guilt did not make clear which of the bases it adopted, and success on the subsequent excessive force claim, which relied on the officer’s handling of only one of the four bases, therefore did not “necessarily” require invalidating that verdict. (Slip opn. at * 11.) No contradiction had to exist, after all, between the idea that Lemos resisted or obstructed the officer in his duties by blocking him from opening a truck door and the idea that the officer used excessive force when he tackled Lemos minutes later. (Id. at * 11-12.) (In reaching this conclusion, Lemos disapproved language in Smith v. City of Hemet (9th Cir. 2005) 394 F.3d 689 and Beets v. County of Los Angeles (9th Cir. 2012) 669 F.3d 1038 stating that a jury’s verdict in a resisting case that could be based on multiple acts “necessarily determines the lawfulness of the officers’ actions throughout the whole course of the defendant’s conduct.”)
Lemos drew support from the California Supreme Court’s conclusions in Yount v. City of Sacramento (2008) 43 Cal.4th 885, where the defendant resisted officers by struggling and kicking. Some minutes later, as Yount continued to resist, an officer accidentally shot him. Yount pled to a count of 148, stipulating to a factual basis for the plea “without any explicit recitation of what those facts were.” (43 Cal.4th at p. 895.) Such a plea did not create a Heck bar to an excessive force claim because there were “two isolated factual contexts” involved in the case, and success on the claim related to the use of force would not necessarily invalidate Yount’s guilt related to the initial struggle with police. (43 Cal.4th at p. 899, internal quotations omitted; see also Sanford v. Motts (9th Cir. 2001) 258 F.3d 1117, 1119 [no Heck bar to excessive force claim where several incidents could have given rise to resisting conviction and “nothing in the record informs us what the factual basis was for Sanford’s plea”].)
The takeaway message of Lemos is that liability for excessive force is more likely to be preserved after a resisting conviction if (1) the facts suggest multiple bases for the conviction, (2) those bases are separated from each other temporally or spatially, and (3) the record either leaves it unclear which basis was adopted or makes it apparent that that the basis for the criminal conviction is not directly intertwined with the conduct that gives rise to the excessive force claim.
Therefore, in a jury trial on resisting, it may be worth considering whether the jury can be instructed with multiple factual bases for the charge, as occurred in Lemos, at least if doing so does not undermine an otherwise defensible case; or, alternatively, whether the factual basis can be omitted altogether from the instructions so that the record will leave the jury’s factual determination vague.
In a plea bargain situation, defense counsel should consider whether it is possible to keep the factual basis strategically vague or, alternatively, to specify a basis for the plea that is temporally and physically distinct from the actions that could be the basis of a later excessive force claim. In stipulating to factual bases for pleas, defense counsel should avoid blanket adoption of entire documents, such as police reports or preliminary hearing transcripts, since adopting the entire document will tend to suggest that there is no conceivable excessive force claim that wouldn’t “necessarily” invalidate the resisting plea.
Related Post: When Is Force Excessive?, Oct. 9, 2023