Vol. 20 No. 5- Smith V. City Of Hemet, Et Al.

Febuary 4, 2005


You will recall from our earlier Client Alert (Vol 20 No. 3; January 21, 2005) that on January 10, 2005, the Ninth Circuit U.S. Court of Appeals, sitting en banc, ruled that Smith’s guilty plea to the criminal charge of Penal Code §148 was not dispositive of his excessive force claim under 42 USC §1983, and that the definition of deadly force was being expanded to include application of any force “that creates a substantial risk of causing death or serious bodily injury.” (Emphasis added)

We are pleased to inform you that the City of Hemet has approved filing a petition for writ of certiorari with the United States Supreme Court, seeking review of this decision and, in particular, the troubling expansion of the definition of deadly force. Elizabeth R. Feffer, who recently became an associate with Jones & Mayer, will continue as counsel of record for the City, with the appellate firm of Greines Martin et al LLP, associating in as co-counsel. This is a well-established appellate firm with a strong record before the United States Supreme Court, and is a welcome addition to our litigation team as we advance this matter.

Additionally, as General Counsel to the California State Sheriffs Association (CSSA), California Police Chiefs Association (CPCA) and the California Police Officers Association (CPOA), we will be preparing and filing an amicus curiae brief supporting the City of Hemet. We intend to reach out to other law enforcement groups to do the same.


In light of the Ninth Circuit’s decision, it is recommended that officers writing arrest reports for violations of Penal Code §148, and supervisors reviewing these reports, take care to fully articulate all of the conduct of the defendant that constituted the act(s) of interfering with, obstructing or resisting the officers’ lawful exercise of authority. It is further recommended that departments consult with their district attorney’s office to ensure that the court record of any plea to the §148 charge clearly states that the plea is to all unlawful conduct of the defendant, from start to finish.


Finally, with regard to the expansion of the definition of deadly force to include any force that poses “a substantial risk of great bodily injury,”officers, deputies and departments are cautioned that it simply cannot be said with certainty at this time what would or would not constitute deadly force under the Ninth Circuit’s new and extraordinary definition of that term. As noted in our prior Client Alert on this case, it is conceivable that levels of force such as batons, TASERs, bean bag rounds, etc., could now be considered by a federal trial court within the Ninth Circuit as constituting deadly force … and thus requiring the level of justification commensurate with deadly force.


The best that can be said, as we await the decision of the Supreme Court on our petition for certiorari, is that officers should only apply these intermediate levels of force with great care, and that all of the circumstances warranting the application of such force be fully and carefully articulated in the related reports. It would also be of benefit to indicate that the force utilized was not intended to cause serious bodily injury. However, at this juncture any wholesale revamping of force policies is probably premature.

The Court did not rule that the use of all impact weapons, or a K-9, will always constitute the use of deadly force (even though they could cause “serious bodily injury”). The Ninth Circuit stated it would be up to the trial court to determine whether the use of the K-9, in the Smith case, constituted the use of deadly force under this new definition.

If the Supreme Court accepts this case for review, the operative effect will be to stay the Ninth Circuit’s decision pending the high court’s decision. We will, of course, keep you apprized of those developments, as they occur.