Vol. 20 No. 3- Smith V. City Of Hemet, Et Al.

January 21, 2005

On August 16, 1999, Hemet police officers responded to the home of Thomas Smith because Cynthia Smith had called 911 to report that her husband was hitting her and had grabbed her breast very hard. While Cynthia Smith was on the telephone with the 911 operator, her husband, plaintiff Thomas Smith yelled, “Let them come. I am waiting for them. Tell them to hurry up.”

Upon arrival, officers saw Thomas Smith standing on his front porch with his hands in his pockets. Mr. Smith refused to respond to officers’ commands, and walked back inside of the house. He returned outside with his hands in his pockets. Although Mr. Smith did ultimately take his hands out of his pockets, he refused officers’ commands to comply, despite the presence of a police services dog and five uniformed Hemet police officers. Instead, Mr. Smith threatened to sue the officers.

Mr. Smith’s resistance escalated, and Mr. Smith attempted to return inside of his home. By then, Mrs. Smith had locked the front door, so Mr. Smith started to fight the officers. A five-minute-long struggle ensued, during which Mr. Smith continuously fought and resisted the efforts of the officers to take him into custody. The officers used pepper spray and a police canine to subdue Mr. Smith.

The District Attorney’s office filed one count of Penal Code section 148, and one count of Penal Code section 273.5, for the domestic violence. Mr. Smith pled guilty to penal code section 148, and to Penal Code section 243(e). Mr. Smith also fulfilled his promise to sue, and sued the City of Hemet, the Hemet Police Department, the Hemet police chief, and the responding officers, for excessive force pursuant to 42 U.S.C. section 1983, in the United States District Court, Central District (Eastern Division).

In the defense of this action, defendants filed a motion for summary judgment on the grounds that plaintiff’s guilty plea to Penal Code section 148 barred plaintiff’s civil action based upon Section 1983, based upon Heck v. Humphrey, 512 U.S. 477 (1994). Defendants argued that the District Court should apply Heck, because a valid conviction for Penal Code section 148 necessarily implied that the force used against plaintiff was reasonable. Defendants supported their motion for summary judgment with a certified copy of plaintiff’s criminal docket, reflecting that plaintiff freely and voluntarily pled guilty to the charge, and stipulated to the factual basis therefor.

Defendants also moved for summary judgment on two alternative grounds, that the force was objectively reasonable under Graham v. Connor, 490 U.S. 386 (1989); and that the officers were entitled to qualified immunity.

The District Court granted summary judgment by applying Heck v. Humphrey and holding that Mr. Smith’s guilty plea barred Mr. Smith’s subsequent action based upon 42 U.S.C. section 1983. The District Court did not reach the issue of whether the force was reasonable or excessive.

Plaintiff appealed, stating that the sole issue on appeal was the District Court’s ruling that plaintiff’s conviction for Penal Code section 148 barred his civil action. In his statement on appeal, plaintiff stated that the sole grounds for appeal was whether , and in 2004 the Ninth Circuit affirmed the District Court’s ruling, applying Heck v. Humphrey, in a published decision. Thereafter, plaintiff filed a petition for rehearing en banc before the Ninth Circuit.

The Ninth Circuit granted en banc review, and the 11-judge panel entertained oral argument on October 14, 2004. On January 10, 2005, the en banc panel filed its published opinion reversing the three-judge panel’s affirming of summary judgment.

Judge Reinhardt’s sweeping opinion has the practical effect of nullifying Heck v. Humphrey. The opinion artificially divides the officers’ response to the domestic violence call as the “investigative phase” and the “arrest” phase, and states that because the officers did not use force until after the “investigative phase,” (i.e. when officers first contacted Mr. Smith on the porch) then no one can really determine the factual basis of Mr. Smith’s guilty plea. This artificial distinction does not accurately reflect law enforcement response in the field. Particularly in the context of Penal Code section 148, a suspect’s noncompliance is required before an officer may use force, such as to overcome resistance or to effect an arrest. An officer cannot arrest an individual for resisting arrest if there has been no resistance!

The dissenters properly note that Mr. Smith’s resistance was one, continuous series of acts. As such, the prosecutor was entitled to charge Mr. Smith with one single count of Penal Code section 148. If there was any mystery in Mr. Smith’s mind as to what he was charged with, and pleading guilty to, Mr. Smith could have made such a record in his criminal proceeding. Instead, the record before the Court reflected that Mr. Smith knowingly and voluntarily pled guilty to the single count of Penal Code section 148, and stipulated that he understood the factual basis underlying the plea.

With respect to this aspect of the Smith case, it is recommended that arrest reports documenting an incident that may give rise to a Penal Code section 148 prosecution describe in detail the resistant or defiant acts. It is also recommended that the arrest report note whether or not the subject’s defiance was continuous or not, or whether there was a break in the conduct of the subject.

The implications of the Smith case, however, extend far beyond the circumstances of a 148 arrest and prosecution. The en banc panel took it upon themselves to overrule the Ninth Circuit’s 1998 Vera Cruz v. City of Escondido decision, 139 F.3d 659. In Vera Cruz, a case involving the use of a police services dog, the Ninth Circuit expressly declined to adopt a definition of deadly force that included “force reasonably likely to kill or result in serious bodily injury.” The Smith en banc panel expressly overruled Vera Cruz, and imposed what it declared to be the “universally accepted definition of the term “deadly force,” including the phrase “serious bodily injury.”

Although the Smith Court stated that it declined to declare the use of a police services dog to be deadly force, the newly-articulated definition does not seem to leave much room for District Courts to interpret the facts otherwise. Likewise, under the new Ninth Circuit definition of deadly force, the use of a baton, or of a less lethal “beanbag” shotgun round, can be considered deadly force because they, too, may cause serious bodily injury.

The effect of Smith is so overreaching that certainly one of the most conservative courses of action is to revise Department policies to define the use of a police canine as deadly force, although it does not appear that such a re-definition would have any effect other than dismantling canine units throughout the Ninth Circuit. As the dissent noted, under the particular facts ofSmith, the defendants articulated that the use of this particular police dog, under these particular circumstances, would not give rise to “serious bodily injury.” In fact, although the majority does not note it in its opinion, the Hemet canine handler testified in his deposition that, based upon his knowledge of his canine’s potential, his canine is less likely to inflict serious bodily injury than a baton would.

The Ninth Circuit remanded the matter to the District Court, to apply the new “deadly force” definition to the facts, and decide whether the use of a police canine was excessive force; or whether qualified immunity applies. The City of Hemet has not yet acted upon the Smith decision, but anticipates making a decision by the end of the month. We will keep you advised.