Vol. 20 No. 11- U.S. Supreme Court Denies Review in Smith v. Hemet

June 22, 2005

On June 20, 2005 the U.S. Supreme Court denied the City of Hemet ‘s request for the Court to grant certiorari (review) in the case of Smith v. Hemet. Previously, the Ninth Circuit U.S. Court of Appeals, sitting en banc , ruled that plaintiff Smith’s guilty plea to the criminal charge of Penal Code §148 was not dispositive of his excessive force claim under 42 USC §1983. Furthermore, the Supreme Court expanded the definition of deadly force, which it had previously defined in the case of Vera Cruz v. City of Escondido, to now include any force “that creates a substantial risk of causing death or serious bodily injury.” (Emphasis added)

In our earlier Client Alerts (Vol. 20 No. 3; January 21, 2005; and Vol. 20 No. 4; February 3, 2005) we discussed the facts of the Smith case (response to domestic violence, resistance by Smith, force used, including a K-9, to arrest him) and the holding by the Ninth Circuit. We refer you to those for background.

The City of Hemet, following the decision by the Ninth Circuit, filed a petition for writ of certiorari with the United States Supreme Court, seeking review of the decision and, in particular, the troubling expansion of the definition of deadly force. Unfortunately, the Court denied the petition and, therefore, the rulings in the Smith case are the law in the Ninth Circuit and they must be followed by law enforcement.

P.C. §148 ARREST

Smith had pled guilty to a violation of Penal Code §148 as a result of his actions when the officers responded to the 911 call from his wife. The record in this case included a certified copy of the court’s docket regarding his guilty plea. It contained standard language that plaintiff “stipulated to the factual basis of the arrest.” The Ninth Circuit, however, found that this was insufficient to bar a subsequent action for civil rights violations. The Ninth Circuit had stated that the record did not indicate what Smith was agreeing to when he pled guilty to resisting or interfering with the officer.

As we previously recommended, we suggest that officers, writing arrest reports for violations of Penal Code §148, 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 also important for the officer to carefully state when, during the defendant’s resistance, the officer’s uses of force occurred and whether the defendant’s resisting was essentially a continuous act of resistance.

Furthermore we recommend that departments consult with their District Attorney’s office to request that the court record of a guilty plea to P.C. 148 is fully articulated as to all unlawful conduct of the defendant, from start to finish. [There is at least one District Attorney who believes such action by his office would be an ethical violation. Since his office does not make a detailed record when defendants plead to other charges, he believes doing it with a P.C. 148 plea is only to prevent a potential civil law suit by the defendant against the law enforcement agency. We respectfully disagree with that interpretation but it is, obviously, necessary for each of the District Attorneys to decide the issue for themselves. All the agency can do is ask.]


As we have previously noted, the Ninth Circuit, when it decided the Smith case, expanded the definition of deadly force to include any force that poses “a substantial risk of causing . . . serious bodily injury.” While not clearly defined, it appears that the Ninth Circuit intended “serious” bodily injury to be less than the “great bodily injury” standard traditionally used by law enforcement in the context of justifying the use of deadly force.

The new deadly force definition is untested in court. The definition will start to take shape by applications of force that have not yet occurred, as future published opinions within the Ninth Circuit are issued. Judges and juries will be tasked with determining what kind of risk is “substantial,” and what is “serious” bodily injury, and their decisions will be litigated on appeal.

Until the new definition becomes widespread in case law, 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.

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. Likewise the injuries inflicted by a police canine could also be considered “serious bodily injury,” and, therefore, “deadly force.”

There is an argument which can be made that “serious bodily injury” must be of a nature that there is a “substantial risk” that the injury will result in death. Therefore, a simple dog bite or injury from a baton would not constitute deadly force. The manner the force is used, and the intent of the officer in using it, will be important in being able to argue that the force did not create a “substantial risk of death or serious bodily injury.”


We are presently in a period where the new deadly force definition takes effect, but it is untested in court. Whether or not a use of force is deadly force will be determined on a case-by-case basis. As we previously noted, 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”).

Officer and deputies are already used to documenting the amount and type of force used to subdue a suspect or affect an arrest. It is now more important than ever to fully and carefully articulate the circumstances warranting the application of such force. That is, the officer should pay careful attention to documenting the reason a particular use of force was used. If an officer uses what has been traditionally considered to be an “intermediate” level of force, such as a baton or a police canine, which may cause serious bodily injury, the officer should explain why the particular use of force was not intended to cause serious bodily injury.

For example, the officer can describe that the location on the suspect’s body where the force was used, such as a baton strike to the back of the leg, is not designed to cause serious bodily injury. Likewise, a canine handler should articulate that the canine was under the control of the handler, bit on command, bit an area where serious bodily injury is not likely, and promptly released from the bite on command, according to training. Preferably, the reason a particular method of force was utilized, instead of another one, would also be documented. For example, explain why a baton was used instead of pepper spray, or why a canine was deployed.

We also recommend that, at this point, Department’s use of force policies should be reviewed and be brought into conformance with the court decision.

As always, we urge law enforcement management to confer with legal counsel before undertaking action which requires legal interpretation. If you wish to discuss this matter in greater detail, please feel free to contact me by phone (714 – 446-1400) or by e-mail mjm@jones-mayer.com.