Smith v. City of Hemet

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

THOMAS SMITH, 

Plaintiff-Appellant,

v.

No. 02-56445

CITY OF HEMET, a municipal

corporation; HEMET POLICE  D.C. No.

CV-00-00811-VAP

DEPARTMENT; LEE EVANSON; DAVE

QUINN; AARON MEDINA; DANIEL OPINION

REINBOLT; TRAINER; NATE MILLER;

PETER HEWITT,

Defendants-Appellees.



Appeal from the United States District Court

for the Central District of California

Virginia A. Phillips, District Judge, Presiding

Argued and Submitted

October 14, 2004—San Francisco, California

Filed January 10, 2005

Before: Mary M. Schroeder, Chief Judge, Harry Pregerson,

Stephen Reinhardt, Andrew J. Kleinfeld, Sidney R. Thomas,

Barry G. Silverman, William A. Fletcher, Richard A. Paez,

Marsha S. Berzon, Jay S. Bybee, and Consuelo M. Callahan,

Circuit Judges.

Opinion by Judge Reinhardt;

Dissent by Judge Silverman

227

SMITH v. CITY OF HEMET 231

COUNSEL

Robert Mann, Esq. and Donald W. Cook, Esq., Los Angeles,

California, for the plaintiff-appellant.

Julie H. Biggs, City Attorney, Hemet, California; Elizabeth R.

Feffer, Esq., Burke, Williams & Sorensen, LLP, Los Angeles,

California, for the defendants-appellees.

OPINION

REINHARDT, Circuit Judge:

We took this case en banc to clarify the law regarding

whether, under Heck v. Humphrey, 512 U.S. 477 (1994), a

§ 1983 action for excessive force is necessarily barred by a

plaintiff’s conviction under California Penal Code § 148(a)(1)

for willfully resisting, delaying, or obstructing a peace officer

in the performance of his duties. We also take this occasion

to bring our circuit into line with the others with respect to the

definition of “deadly force.”

Thomas Smith appeals the district court’s order granting

the defendants’ summary judgment motion in his § 1983

232 SMITH v. CITY OF HEMET

action for excessive use of force. We reverse and hold that

Smith’s § 1983 action is not barred by Heck because the

excessive force may have been employed against him subse-

quent to the time he engaged in the conduct that constituted

the basis for his conviction. In such circumstance, Smith’s

§ 1983 action neither demonstrates nor necessarily implies the

invalidity of his conviction. We also hold that in this circuit

“deadly force” has the same meaning as it does in the other

circuits that have defined the term, a definition that finds its

origin in the Model Penal Code. We define deadly force as

force that creates a substantial risk of causing death or serious

bodily injury. We reverse the grant of summary judgment and

remand to the district court.

I. FACTUAL AND PROCEDURAL HISTORY

The facts of the encounter between Smith and the police are

not seriously disputed. To the extent that there is a difference

between the parties, however, we look to the version most

favorable to the plaintiff, the non-moving party. On the night

of August 16, 1999, Smith’s wife placed an emergency phone

call to the Hemet Police Department (“Department”) report-

ing that her husband “was hitting her and/or was physical with

her.” Mrs. Smith informed emergency personnel that her hus-

band did not have a gun, there were no weapons in the house,

and he was clad in his pajamas.

Officer Daniel Reinbolt was the first officer to arrive at the

house in order to investigate the incident. He observed Smith

standing on his front porch and “noticed Smith’s hands in his

pockets.” The officer announced himself and instructed Smith

to remove his hands from his pockets. Smith refused,

responding with expletives and directing Officer Reinbolt to

come to him. Officer Reinbolt informed Smith that he would

approach, but only after Smith removed his hands from his

pockets and showed that he had no weapons. Smith again

refused to remove his hands from his pockets and instead

entered his home.

SMITH v. CITY OF HEMET 233

After Officer Reinbolt advised dispatch of what had tran-

spired, Smith reemerged onto the porch with his hands still in

his pockets. Officer Reinbolt again instructed Smith to show

his hands. Smith complied with this instruction, but then

refused to follow an order to “put his hands on his head and

walk towards [the officer’s] voice[.]” Instead, Smith again

asked Officer Reinbolt to approach and enter the home with

him.

Officer Nate Miller arrived in response to Officer Rein-

bolt’s radioed request for assistance. Observing Smith’s

refusal to cooperate with Officer Reinbolt, Officer Miller con-

tacted dispatch to request additional assistance, including a

canine unit. Officer David Quinn, a canine handler with the

Department, arrived shortly thereafter with “Quando,” a

police canine. Officer Aaron Medina also responded to one of

the assistance calls.

Officer Quinn instructed Smith to turn around and place his

hands on his head. Smith again refused to obey the order,

despite being informed that Quando could be sent to subdue

him and might bite. Without further warning, Officer Quinn

sprayed Smith in the face with pepper spray. Smith responded

with expletives and attempted to reenter his residence, but the

door had been locked by Mrs. Smith. Several more officers

then moved onto the porch, grabbed Smith from behind,

slammed him against the door, and threw him down on the

porch; Officer Quinn ordered the canine to attack him.

Quando bit Smith on his right shoulder and neck area. At

some point, either before or after the order to attack, the dog

sank his teeth into Smith’s arm and clung to it.

With at least four officers surrounding him and Quando’s

teeth sunk into his shoulder and neck, Smith agreed to comply

with the officers’ orders and submit to arrest. Although Smith

submitted, he admits that he was “curled up” in a fetal posi-

tion in an attempt to shield himself from the dog and that one

of his hands was “tucked in somewhere,” still out of the offi-

234 SMITH v. CITY OF HEMET

cers’ view. As one of the officers attempted to secure both

arms, Quando was instructed by Officer Quinn to bite Smith

a second time; this time the dog bit Smith on his left side and

shoulder blade. Upon Officer Quinn’s order, Quando ulti-

mately retreated, and the officers dragged Smith off the porch,

face down. Once off the porch, Smith continued to shield one

of his arms from the dog’s attack. Officer Quinn then ordered

Quando to bite Smith a third time. This time, the dog bit into

Smith’s buttock. While all this was transpiring, Smith was

pepper-sprayed at least four times, at least two of which

sprayings occurred after the police dog had seized him and

broken his skin, and at least one after the officers had pinned

him to the ground.

Eventually, the officers secured the handcuffs on both of

Smith’s arms. Officer Reinbolt then washed Smith’s eyes out

with water from a nearby hose, but did not cleanse the

wounds he received as a result of the dog bites.1 Paramedics

arrived shortly thereafter and attended to Smith’s injuries.

Smith pled guilty in California Superior Court to a viola-

tion of California Penal Code § 148(a)(1).2 Section 148(a)(1)

provides: “Every person who willfully resists, delays, or

obstructs any . . . peace officer . . . in the discharge or attempt

to discharge any duty of his or her office or employment, . . .

shall be [guilty of a misdemeanor].” Smith was sentenced to

36 months’ probation.

1

Although the dissent is correct that Officer Reinbolt’s tape recording

of the encounter between Smith and the Hemet police is about 5 minutes

and 13 seconds, it neglects to mention that the tape which constitutes a

part of the record is only a partial recording of the encounter. The tape,

introduced by Smith, does not begin until some point after he returned to

the porch from inside the house. The record is unclear as to the duration

of the entire encounter. Suffice it to say that we know, given the declara-

tion and depositions in the case, that it was substantially longer than five

minutes.

2

Smith also pled guilty to spousal battery under California Penal Code

§ 243(e). That conviction is not at issue in this case.

SMITH v. CITY OF HEMET 235

Smith filed a complaint under 42 U.S.C. § 1983 in the Dis-

trict Court, alleging that the officers used excessive force

when they sprayed him with pepper spray and sicced the

police canine on him. The defendants moved for summary

judgment on several grounds, among them that Heck v. Hum-

phrey bars Smith’s § 1983 action and that the challenged use

of force — the pepper spray and police dog — was appropri-

ate and reasonable under the circumstances. The district court

granted summary judgment on the basis that Heck barred

Smith’s § 1983 action. Judgment for the defendants was

entered, and Smith filed a timely Notice of Appeal.

II. DISCUSSION

A. The Alleged Heck v. Humphrey Bar

[1] In Heck v. Humphrey, the United States Supreme Court

held that:

[I]n order to recover damages for allegedly unconsti-

tutional conviction or imprisonment, or for other

harm caused by actions whose unlawfulness would

render a conviction or sentence invalid, a § 1983

plaintiff must prove that the conviction or sentence

has been reversed on direct appeal, expunged by

executive order, declared invalid by a state tribunal

authorized to make such determination, or called into

question by a federal court’s issuance of a writ of

habeas corpus. . . . A claim for damages bearing that

relationship to a conviction or sentence that has not

been so invalidated is not cognizable under § 1983.

Thus, when a state prisoner seeks damages in a

§ 1983 suit, the district court must 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 . . . .

512 U.S. at 486-87. Heck says that “if a criminal conviction

arising out of the same facts stands and is fundamentally

236 SMITH v. CITY OF HEMET

inconsistent with the unlawful behavior for which section

1983 damages are sought, the 1983 action must be dis-

missed.” Smithart v. Towery, 79 F.3d 951, 952 (9th Cir.

1996). As the Supreme Court explained, the relevant question

is whether success in a subsequent § 1983 suit would “neces-

sarily imply” or “demonstrate” the invalidity of the earlier

conviction or sentence under § 148(a)(1). Heck, 512 U.S. at

487; see also Cunningham v. Gates, 312 F.3d 1148, 1153-54

(9th Cir. 2003) (as amended) (Heck bars suits “based on theo-

ries that ‘necessarily imply the invalidity of [the plaintiff’s]

convictions or sentences.’ ”) (quoting Heck, 512 U.S. at 487).

We conclude that success in Smith’s action would not give

rise to any such necessary implication.

[2] Under California Penal Code § 148(a)(1), “[t]he legal

elements of a violation . . . are as follows: (1) the defendant

willfully resisted, delayed, or obstructed a peace officer, (2)

when the officer was engaged in the performance of his or her

duties, and (3) the defendant knew or reasonably should have

known that the other person was a peace officer engaged in

the performance of his or her duties.” In re Muhammed C., 95

Cal. App. 4th 1325, 1329 (Cal. Ct. App. 2002) (citations omit-

ted). For a § 148(a)(1) conviction to be valid, a criminal

defendant must have “resist[ed], delay[ed], or obstruct[ed]” a

police officer in the lawful exercise of his duties. In Califor-

nia, the lawfulness of the officer’s conduct is an essential ele-

ment of the offense of resisting, delaying, or obstructing a

peace officer. See People v. Curtis, 70 Cal. 2d 347, 354-56,

357 n.9 (1969); Susag v. City of Lake Forest, 94 Cal. App. 4th

1401, 1409 (Cal. Ct. App. 2002). “If the officer was not per-

forming his or her duties at the time of the arrest, the arrest

is unlawful and the arrestee cannot be convicted under Penal

Code section 148, subdivision (a).” Id. (emphasis added).

[3] Excessive force used by a police officer at the time of

the arrest is not within the performance of the officer’s duty.

Id.; People v. Olguin, 119 Cal. App. 3d 39, 45-46 (Cal. Ct.

App. 1981) (“[A]n arrest made with excessive force is equally

SMITH v. CITY OF HEMET 237

unlawful. ‘[It] is a public offense for a peace officer to use

unreasonable and excessive force in effecting an arrest.’ ”)

(citation omitted) (emphasis added); People v. White, 101 Cal.

App. 3d 161, 167 (Cal. Ct. App. 1980) (“Thus, in the present

case it becomes essential for the jury to be told that if they

found the arrest was made with excessive force, the arrest was

unlawful and they should find the defendant not guilty of

those charges which required the officer to be lawfully

engaged in the performance of his duties ([Cal. Penal Code]

§§ 245, subd. (b), 243 and 148).”) (emphasis added).

[4] Under the definitions set forth in the California cases

listed above, “the time of the arrest” does not include previous

stages of law enforcement activities that might or might not

lead to an arrest, such as conducting an investigation; it

includes only the time during which the arrest is being

effected. A conviction for resisting arrest under § 148(a)(1)

may be lawfully obtained only if the officers do not use

excessive force in the course of making that arrest. A convic-

tion based on conduct that occurred before the officers com-

mence the process of arresting the defendant is not

“necessarily” rendered invalid by the officers’ subsequent use

of excessive force in making the arrest. For example, the offi-

cers do not act unlawfully when they perform investigative

duties a defendant seeks to obstruct, but only afterwards when

they employ excessive force in making the arrest. Similarly,

excessive force used after a defendant has been arrested may

properly be the subject of a § 1983 action notwithstanding the

defendant’s conviction on a charge of resisting an arrest that

was itself lawfully conducted. See, e.g., Sanford v. Motts, 258

F.3d 1117, 1119-20 (9th Cir. 2001) (explaining that a success-

ful § 1983 suit based on excessive force would not necessarily

imply the invalidity of Sanford’s conviction under § 148(a)(1)

because the officer’s use of excessive force occurred subse-

quent to the conduct for which Sanford was convicted under

§ 148(a)(1)).

Defendants contend that Heck bars Smith’s § 1983 action

because the lawfulness of Smith’s arrest was determined in

238 SMITH v. CITY OF HEMET

the criminal action in which he voluntarily pled guilty. They

urge that if Smith’s allegations that he was subjected to exces-

sive force during the arrest are now found to be true, that find-

ing will necessarily imply the invalidity of his criminal

conviction under § 148(a)(1). Because that conviction has not

been reversed, expunged, declared invalid, or called into

question by issuance of a writ of habeas corpus, defendants

assert that Smith is precluded from pursuing his § 1983

claims.

Smith responds that the defendants unlawfully used exces-

sive force against him after he had committed the acts on

which his conviction was based, and thus that a verdict in his

favor would not imply that his conviction was invalid. At the

very least, Smith contends, the record does not reflect which

acts underlay his plea and therefore his § 1983 action is not

necessarily inconsistent with his conviction. Accordingly, he

urges, Heck v. Humphrey is not a bar. We agree.

The pertinent facts are as follows: Smith engaged in at least

three or four acts in violation of § 148(a)(1) before the offi-

cers used force against him. These acts of willful resistance,

delay, or obstruction occurred prior to the time that the offi-

cers had determined to arrest him for any criminal conduct.

Indeed, they occurred in the course of the officers’ lawful per-

formance of their duty to investigate whether an offense had

occurred. The acts by Smith include twice refusing to take his

hands out of his pockets, reentering his home once; repeatedly

refusing to put his hands on his head and come down off the

porch, and, finally refusing to put his hands on his head and

turn around. Each of these acts constituted a violation of

§ 148(a)(1) sufficient to warrant the filing of a criminal

charge. Each could support a conviction under that section for

obstructing the criminal investigation. See, e.g., In re Muham-

med C., 95 Cal. App. 4th at 1329-30 (holding that defendant

violated § 148(a)(1) when he refused officers’ repeated

requests to step away from the patrol car); People v. Green,

51 Cal. App. 4th 1433, 1438 (Cal. Ct. App. 1997) (affirming

SMITH v. CITY OF HEMET 239

§ 148(a)(1) conviction in which defendant obstructed an

investigating police officer by verbally intimidating a sus-

pected victim because “the attempt to intimidate the suspected

victim impeded the investigation. This is the very evil which

the Legislature sought to proscribe by the enactment of sec-

tion 148.”) (emphasis added).

Defendants do not dispute that Smith violated § 148(a)(1)

when he impeded their investigation by refusing to comply

with their commands and that these acts by Smith occurred

before the officers came onto the porch and attempted to

arrest him. Officer Quinn stated in his deposition that, based

on his training and experience, he knew that Smith had vio-

lated § 148(a)(1) before the officers came onto the porch to

make their arrest.3 The City of Hemet’s police practices expert

3

Specifically, Officer Quinn stated:

Q: When you were approaching Mr. Smith, he was still in dis-

obedience of the officers’ commands; is that right?

A: Sure.

...

Q: . . . Based on your training, what are the elements for mak-

ing an arrest for a violation of Section 148 of the Penal Code?

A: Somebody has to obstruct, delay, or resist a police officer in

the performance of their duties.

Q: Were the officers engaged in the performance of their duties

as they were giving command to Mr. Smith to put his hands on

his head and step off the porch?

A: Yes.

Q: Was Mr. Smith’s noncompliance with those commands

obstructing or delaying the officers in the performance of their

duties?

A: Yes.

Q: So based on your training and experience, Mr. Smith — that

is, by the time that you’re approaching him on the porch — Mr.

Smith had violated Penal Code Section 148.

A: Sure.

240 SMITH v. CITY OF HEMET

also stated in his declaration that Smith had violated

§ 148(a)(1) multiple times before the defendant officers

attempted to arrest him. Finally, at oral argument, counsel for

the defendants made a similar concession.

While both parties agree that Smith violated § 148(a)(1) a

number of times before the officers came onto the porch to

make their arrest, it is also the case that Smith subsequently

violated the statute during the course of the officers’ efforts

to arrest him. Once the officers were on the porch, Smith

again disobeyed their commands, both after he was sprayed

with pepper spray and also immediately prior to the attacks by

Quando. It is, thus, clear that if Smith pled guilty to

§ 148(a)(1) based on his behavior after the officers came onto

the porch, during the course of the arrest, his suit would be

barred by Heck. See Heck, 512 U.S. at 486-87. In such case,

a successful § 1983 action by Smith would necessarily mean

that the officers had used excessive force to subdue him and

were therefore acting unlawfully at the time his arrest was

effected. In that circumstance, Smith’s conviction under

§ 148(a)(1) would have been wrongful and a successful

§ 1983 suit by him would demonstrate its invalidity. See id.

[5] Under Heck, Smith would be allowed to bring a § 1983

action, however, if the use of excessive force occurred subse-

quent to the conduct on which his conviction was based. Spe-

cifically, Smith would be entitled to proceed below if his

conviction were based on unlawful behavior that took place

while he stood alone and untouched on his porch — that is,

if his unlawful conduct occurred while the officers were

attempting to investigate his wife’s complaint. In such case,

a judgment in Smith’s favor would not necessarily conflict

with his conviction because his acts of resistance, delay, or

obstruction would have occurred while the officers were

engaged in the lawful performance of their investigative

duties, not while they were engaged in effecting an arrest by

the use of excessive force.

SMITH v. CITY OF HEMET 241

The defendants’ argument wrongly focuses on Smith’s con-

duct rather than the officers’. There were two different phases

of the officers’ conduct here — first, the investigative phase;

then, when Smith repeatedly refused to cooperate, the arrest

for violating § 148(a)(1) and for the underlying offense that

otherwise might or might not have led to an arrest. The offi-

cers’ allegedly unlawful conduct which transpired after they

decided to use physical force to subdue Smith occurred during

the second phase of their law enforcement activities, during

the course of their effort to take Smith into custody. Prior to

that time, during the investigative phase, they had issued only

verbal commands, all of which were concededly well within

the bounds of their general police powers. Smith’s obstruction

of that investigation came to an end when the officers decided

to arrest him. Thereafter, in the course of the arrest, they

allegedly engaged in the use of excessive force that rendered

the arrest unlawful. It did not, however, render their preceding

investigation unlawful, nor would it for Heck purposes invali-

date a conviction for obstructing that investigation. California

law immunizes Smith from prosecution for any conduct that

occurred at the time of, or during the course of his unlawful

arrest, but it does not immunize him from prosecution for

unlawful conduct that occurred prior or subsequent to that

time.

[6] There is one remaining complication. As in Sanford v.

Motts, “nothing in the record informs us what the factual basis

for [Smith’s] plea” was. 258 F.3d at 1119. There is no indica-

tion as to whether Smith’s plea was based on his conduct that

impeded the officers’ investigation before they came onto the

porch, or his subsequent resistance to their physical attempt

to arrest him, or both. The record is clear that Smith pled

guilty to one count of violating § 148(a)(1), but there is no

information as to which of his actions constituted the basis for

his plea. The charging complaint simply states that Smith vio-

lated § 148(a)(1) when he wilfully and unlawfully resisted,

delayed, and obstructed the defendant officers in the dis-

charge of, and attempt to discharge, their duty. Neither party

242 SMITH v. CITY OF HEMET

in its briefs or at oral argument was able to identify the facts

underlying the plea or to advise us regarding what transpired

at the time Smith entered his plea. It is therefore entirely pos-

sible that, as Smith asserts, he pled guilty to a violation of

§ 148(a)(1) on the basis of his actions during the time the offi-

cers were conducting their lawful investigation. As the offi-

cers acted lawfully in issuing orders to Smith while they were

on the ground below where he was standing on his porch, his

disobedience of those orders, as we have explained, would not

be immunized from prosecution by the officers’ subsequent

unlawful acts after they decided to arrest him. Because we are

unable to determine “the factual basis for [Smith’s] plea,” id.,

his lawsuit does not necessarily imply the invalidity of his

conviction and is therefore not barred by Heck. Heck, 512

U.S. at 487.

Under similar factual circumstances in Sanford v. Motts, we

held that because there were “a variety of accusations” against

the plaintiff which could have formed the basis of the

§ 148(a)(1) conviction, and because the challenged conduct

was not necessarily the predicate for his plea, Sanford’s

§ 1983 suit did not necessarily imply the invalidity of the con-

viction. 258 F.3d at 1119-20. As our dissenting colleagues

aptly note, in that case we said that “[e]xcessive force used

after an arrest is made does not destroy the lawfulness of the

arrest” for a violation of California Penal Code § 148(a)(1).

Dissent at 257 (quoting Sanford, 258 F.3d at 1120). Although

Sanford involved an allegation that Officer Motts punched the

plaintiff in the face after the plaintiff was arrested, the San-

ford court did not limit its explanation of Heck to such a case.

What the dissent ignores is that in Sanford, we clearly held

that “Sanford’s conviction required that Motts be acting law-

fully in the performance of his duties ‘at the time the offense

against him was committed. Hence, if Motts used excessive

force subsequent to the time Sanford interfered with his duty,

success in her section 1983 claim will not invalidate her con-

viction. Heck is no bar.” 258 F.3d at 1120 (citation omitted)

(emphasis added). Our holding in Sanford was that a § 1983

SMITH v. CITY OF HEMET 243

action is not barred by Heck unless the alleged excessive force

occurred at the time the offense under § 148(a)(1) was being

committed. Id. Thus, in this case, under Sanford, as long as

the officers were acting lawfully at the time the violation of

§ 148(a)(1) took place, their alleged acts of excessive force,

whether they occurred before or after Smith committed the

acts to which he pled, would not invalidate his conviction.4

[7] As we have explained, a § 1983 action is not barred

under Heck unless it is clear from the record that its success-

ful prosecution would necessarily imply or demonstrate that

the plaintiff’s earlier conviction was invalid. Because on the

record before us we cannot determine that the actions that

underlay Smith’s conviction upon his plea of guilty occurred

at the time of or during the course of his unlawful arrest,

Smith’s success in the present action would not necessarily

impugn his conviction. Accordingly, the defendants are not

entitled to summary judgment on the basis of Heck v. Hum-

phrey.5

(Text continued on page 245)

4

Additionally, we note that other circuits have held that Heck does not

bar § 1983 actions alleging excessive force despite the plaintiff’s convic-

tion for resisting arrest. See, e.g., Robinson v. Doe, 272 F.3d 921, 923 (7th

Cir. 2001) (holding that a finding of excessive force in a § 1983 action

would not necessarily imply the invalidity of the plaintiff’s conviction for

resisting arrest); Willingham v. Loughnan, 261 F.3d 1178, 1183 (11th Cir.

2001), cert. granted and judgment vacated on other grounds, 537 U.S. 801

(2002) (same); Martinez v. City of Albuquerque, 184 F.3d 1123, 1127

(10th Cir. 1999) (same); Nelson v. Jashurek, 109 F.3d 142 (3d Cir. 1997)

(same); Wells v. Bonner, 45 F.3d 90, 95 (5th Cir. 1995) (same).

5

The dissent relies almost exclusively on Susag v. City of Lake Forest.

See 94 Cal. App. 4th at 1408-10. That case is not controlling for at least

three reasons. First, the Susag court treated all of the acts involved, includ-

ing those that immediately preceded the actual arrest, as occurring “at the

time of the arrest.” In Susag, unlike in the present case, there were not two

separate phases to the incident, the investigative phase and the arrest itself.

Rather, in Susag the court considered all of the plaintiff’s actions to have

occurred in connection with the arrest. For this reason alone, Susag is

inapplicable here. Second, the discussion in Susag upon which the dissent

relies is contained in the midst of an analysis of the proper construction

244 SMITH v. CITY OF HEMET

to be given Heck v. Humphrey. Heck requires the application of federal

law to the particular circumstances of the plaintiff’s conviction. Insofar as

Susag purports to construe Heck, a federal doctrine, we are in no way con-

trolled by it or required to afford it deference. Moreover, Susag miscon-

strues federal law in that it states, as the dissent emphasizes, that the

burden shifted to the civil rights plaintiff to show that a favorable finding

“would not necessarily imply the invalidity of the conviction.” Federal law

is to the contrary. See Sanford, 258 F.3d at 1119 (placing the burden on

the defendants to prove that plaintiff’s success in her § 1983 action would

necessarily imply the invalidity of her conviction). Unless it is clear that

the plaintiff’s action will impugn the underlying conviction the § 1983

action may proceed. It is because of this misapplication of federal law that

Susag reached the result it did. Accordingly, it does not bind us. Third,

under California law, persons who violate § 148(a)(1) in a number of

respects in the course of a single incident may be charged and convicted

only once. See People v. Simon, 21 Cal. App. 88 (Cal. Ct. App. 1913).

This rule is for the benefit of defendants and under it a general charge

encompasses, and precludes further prosecution of, all the acts involved.

Unlike Smith, Susag was convicted after a trial in which the prosecutor

established a factual pattern of conduct sufficient for the jury to determine

his guilt beyond a reasonable doubt. Id. at 1401-07. Where a defendant is

charged with a single-act offense but there are multiple acts involved each

of which could serve as the basis for a conviction, a jury does not deter-

mine which specific act or acts form the basis for the conviction. See Peo-

ple v. McIntyre, 115 Cal. App. 3d 899, 910-11 (Cal. Ct. App. 1981) (“It

is only incumbent that [the jury] agree [a culpable act] occurred on that

date, the exact time or sequence in relation to the [offense] is not materi-

al.”) (citation omitted). Thus, a jury’s verdict necessarily determines the

lawfulness of the officers’ actions throughout the whole course of the

defendant’s conduct, and any action alleging the use of excessive force

would “necessarily imply the invalidity of his conviction.” Susag, 94 Cal.

App. 4th at 1410 (emphasis added). However, where a § 1983 plaintiff has

pled guilty or entered a plea of nolo contendere, such as Smith and San-

ford did, it is not necessarily the case that the factual basis for his convic-

tion included the whole course of his conduct. In the case of a guilty plea

or plea of nolo contendere, as the dissent acknowledges, a defendant is

free to admit having committed a specific act or acts of resistance, delay,

or obstruction, to identify the particular acts of unlawfulness to which he

is willing to plead, and to deny that he engaged in other specific acts.

Because Smith pled guilty rather than being convicted by a jury, it is

entirely possible that, as he contends, his plea was based on only those

SMITH v. CITY OF HEMET 245

B. The Excessive Force Claim

Smith alleges that after the officers came onto the porch

they used both excessive force, generally, and deadly force,

specifically, against him in contravention of the Fourth

Amendment. Defendants, in contrast, urge that the force used

was at all times reasonable and that we may therefore affirm

the district court’s summary judgment order on this alterna-

tive ground. Although we are free to affirm on any alternative

basis if the record supports our doing so, we conclude that the

record before us does not warrant such a result.

[8] A Fourth Amendment claim of excessive force is ana-

lyzed under the framework outlined by the Supreme Court in

Graham v. Connor, 490 U.S. 386 (1989). All claims that law

enforcement officers have used excessive force — deadly or

otherwise — in the course of an arrest must be analyzed under

the Fourth Amendment and its “reasonableness” standard. See

Graham v. Connor, 490 U.S. at 395; Ward v. City of San Jose,

967 F.2d 280, 284 (9th Cir. 1992) (as amended). “It is clear

that under Graham, excessive force claims arising before or

during arrest are to be analyzed exclusively under the [F]ourth

[A]mendment’s reasonableness standard. . . .” Reed v. Hoy,

909 F.2d 324, 329 (9th Cir. 1989), cert. denied, 501 U.S.

1250 (1991); see also Hammer v. Gross, 932 F.2d 842, 845

(9th Cir. 1991) (en banc). That analysis requires balancing the

“nature and quality of the intrusion” on a person’s liberty with

the “countervailing governmental interests at stake” to deter-

mine whether the use of force was objectively reasonable

under the circumstances. Graham, 490 U.S. at 396.

The Supreme Court has said that “the ‘reasonableness’

inquiry in an excessive force case is an objective one: The

actions that served to obstruct the officers’ investigation, all of which

occurred prior to, rather than at the time of, the arrest. Thus, Susag is

clearly distinguishable.

246 SMITH v. CITY OF HEMET

question is whether the officers’ actions are ‘objectively rea-

sonable’ in light of the facts and circumstances confronting

them[.]” Id. at 397 (citations omitted); see, e.g., Jackson v.

City of Bremerton, 268 F.3d 646, 651 (9th Cir. 2001). “The

question is not simply whether the force was necessary to

accomplish a legitimate police objective; it is whether the

force used was reasonable in light of all the relevant circum-

stances.” Hammer v. Gross, 932 F.2d at 846 (emphasis in

original).

In Graham, the Supreme Court indicated that relevant fac-

tors in the Fourth Amendment reasonableness inquiry include

“[1] the severity of the crime at issue, [2] whether the suspect

poses an immediate threat to the safety of the officers or oth-

ers, and [3] whether he is actively resisting arrest or attempt-

ing to evade arrest by flight.” 490 U.S. at 396. The Court did

not, however, limit the inquiry to those factors. “Because the

test of reasonableness under the Fourth Amendment is not

capable of precise definition or mechanical application,” the

reasonableness of a seizure must instead be assessed by care-

fully considering the objective facts and circumstances that

confronted the arresting officers. Id. In some cases, for exam-

ple, the availability of alternative methods of capturing or

subduing a suspect may be a factor to consider. See Chew v.

Gates, 27 F.3d 1432, 1441 n.5 (9th Cir. 1994).

If the evidence, reviewed in the light most favorable to

Smith, could support a finding of excessive force, then the

defendants are not entitled to summary judgment. “Because

[the excessive force inquiry] nearly always requires a jury to

sift through disputed factual contentions, and to draw infer-

ences therefrom, we have held on many occasions that sum-

mary judgment or judgment as a matter of law in excessive

force cases should be granted sparingly.” Santos v. Gates, 287

F.3d 846, 853 (9th Cir. 2002); see also Liston v. County of

Riverside, 120 F.3d 965, 976 n.10 (9th Cir. 1997) (as

amended) (“We have held repeatedly that the reasonableness

of force used is ordinarily a question of fact for the jury.”).

SMITH v. CITY OF HEMET 247

This is because such cases almost always turn on a jury’s

credibility determinations. The case before us is no different.

[9] First, it is necessary to assess the quantum of force used

to arrest Smith. “The three factors articulated in Graham, and

other factors bearing on the reasonableness of a particular

application of force, are not to be considered in a vacuum but

only in relation to the amount of force used to effect a particu-

lar seizure — an analysis the district court never explicitly

undertook.” Chew v. Gates, 27 F.3d at 1441. By even the

defendants’ account, the force used against Smith was severe.

The Hemet Police Department’s use of force policy, General

Order U-102, classifies the use of both pepper spray and a

police service dog as “intermediate” force. Defendants

acknowledge that they employed both types of force, and that

“intermediate” force is the most severe force authorized short

of deadly force. On Smith’s account, the officers’ use of force

was even greater. As Smith puts it, the officers pepper-

sprayed him four times, one of which occurred after they had

him pinned down, and sicced Quando on him three times.

Under the facts as we must assess them for purposes of this

appeal, the officers slammed Smith against the wall, threw

him to the ground, slid him off the porch while face down,

pepper-sprayed him repeatedly, and either permitted or

instructed Quando to attack him on three occasions,6 at least

one such attack occurring while the officers had him pinned

to the ground. The canine assault resulted in Quando’s teeth

puncturing the skin on various parts of Smith’s body. As well,

Smith stated in his deposition that the effect of the pepper

6

There is a question of fact which only a jury can resolve as to whether

the police canine initially attacked Smith even prior to Officer Quinn’s

instruction. In his deposition, Smith stated that the dog began attacking

him when he was slammed against the door by Officers Medina, Miller,

and Reinbolt. However, defendants claim in their declarations that Quando

was ordered to attack only after the officers wrestled Smith to the ground.

We leave the ultimate significance of this factual disagreement to the par-

ties to resolve at trial; it is of no consequence for our purposes here. Either

way, summary judgment was not proper.

248 SMITH v. CITY OF HEMET

spray was exacerbated because, although the officers flushed

out Smith’s eyes after he was arrested, they did not flush out

the pepper spray in the wounds from the dog bites on his

neck, arm, shoulder, back, and buttock.

[10] Next, it is necessary to apply the Graham criteria,

beginning with the “most important single element of the

three specified factors: whether the suspect poses an immedi-

ate threat to the safety of the officers or others.” Id. The

record does not reveal any basis for believing that Smith was

armed or that he posed an immediate threat to anyone’s

safety. Smith’s wife had informed the police that he had no

guns or weapons in the house and that he was in his pajamas.

Except for the time when he reentered his home, he was in

plain view of the officers. Although he initially refused to

comply with Officer Reinbolt’s instruction to remove his

hands from his pajama pockets, he ultimately did so before

the officers used any physical force to restrain him. There is

no indication in the record that after Smith removed his hands

from his pockets there was any reason to believe that he pos-

sessed any weapon or posed any immediate threat to the

safety of the officers or others. In fact, the defendants concede

in their depositions that Smith did not pose a significant threat

of death or serious injury. One of the defendant officers, Offi-

cer Quinn, stated in his declaration that Smith made no

threats, verbal or physical, toward him or anyone else.

Although it is true that until both of his arms were hand-

cuffed, Smith continued to shield one arm from the officers

and their dog and to shout expletives at the officers, consider-

ing the evidence in the light most favorable to him, a rational

jury could very well find that he did not, at any time, pose a

danger to the officers or others.

[11] The second Graham factor we consider is the severity

of the crime at issue. Graham, 490 U.S. at 396. On the eve-

ning of the incident, Smith’s wife called 911 to report that her

husband “was hitting her and/or was physical with her,” that

he had grabbed her breast very hard. Although we are mindful

SMITH v. CITY OF HEMET 249

of the seriousness and reprehensibility of domestic abuse, the

circumstances are not such in this case as to warrant the con-

clusion that Smith was a particularly dangerous criminal or

that his offense was especially egregious. When Officer Rein-

bolt arrived, Smith was standing on his porch alone and sepa-

rated from his wife. He had no guns or other weapons in his

possession and there were none in the house — and he was

clad in his pajamas. Under these circumstances, the nature of

the crime at issue provides little, if any, basis for the officers’

use of physical force.

[12] The third Graham factor is whether the individual

actively resisted arrest or attempted to evade arrest by flight.

Id. Smith continually ignored the officers’ requests to remove

his hands from his pajamas and to place them on his head. He

also reentered his home for a brief period before returning to

the porch. However, Smith did not attempt to run from the

officers. To the extent that he physically resisted arrest, defen-

dants acknowledge that it lasted for only a brief time.

Although Smith refused to place both his arms behind his

back, he did not attack the officers or their dog. In all, it does

not appear that Smith’s resistance was particularly bellicose

or that he showed any signs of fleeing the area.

As we have previously explained, an additional factor that

we may consider in our Graham analysis is the availability of

alternative methods of capturing or subduing a suspect. Chew

v. Gates, 27 F.3d at 1441 n.5. Smith argues that the officers’

conduct violated applicable police standards and that there

were alternative techniques available for subduing him that

presented a lesser threat of death or serious injury. Smith

offered an expert declaration on the training of police dogs

and police dog handlers. Discussing whether the officers’

conduct comported with law enforcement standards, the

expert relied upon California’s Peace Officer Standards and

Training, which are applicable to all state police officers and

are a part of Department policy. He concluded that the offi-

cers could and should have used control holds to complete the

250 SMITH v. CITY OF HEMET

arrest rather than to sic Quando on him once they had him

restrained on the ground. See also Hemet Chief of Police,

“Use of Force,” Gen. Order No. U-102 (discussing “profes-

sional presence,” “compliance techniques,” and other “inter-

mediate force” less likely to cause death or serious injury). A

rational jury could rely upon such evidence in assessing

whether the officers’ use of force was unreasonable. See

Larez v. City of Los Angeles, 946 F.2d 630, 635 (9th Cir.

1991) (as amended) (finding that testimony of “an expert on

proper police procedures and policies” was relevant and

admissible); Davis v. Mason County, 927 F.2d 1473, 1484-85

(9th Cir. 1991) (as amended) (testimony of plaintiffs’ police

practices expert that officers violated law enforcement stan-

dards properly received).

[13] Considering the severity and extent of the force used,

the three basic Graham factors, and the availability of other

means of accomplishing the arrest, it is evident that the ques-

tion whether the force used here was reasonable is a matter

that cannot be resolved in favor of the defendants on summary

judgment.

[14] Although only Smith’s account of the facts matters for

our analysis, on both accounts of the arrest, Smith did not

attack the officers; indeed at no time did he even threaten to

attack any of them, or their dog. Smith asserts that his failure

to uncurl his arm from under his body was a reasonable effort

to protect himself against an unreasonably excessive use of

deadly force in the form of Quando, a police canine. Even

excluding the question of whether the police dog constituted

deadly force, a jury well could find that, given the circum-

stances, the totality of force used — four blasts of pepper

spray, slamming Smith down onto the porch, dragging him

off the porch face down, ordering the canine to attack him

three times, and the resultant dog bites and physical assaults

on his body — was unreasonable. We have indeed held on

past occasions that the use of lesser force could be unreason-

able in the particular circumstances. See Santos, 287 F.3d at

SMITH v. CITY OF HEMET 251

853-54 (shoving can amount to excessive force when it is

unreasonable); Headwaters Forest Defense v. County of Hum-

boldt, 276 F.3d 1125, 1130-31 (9th Cir. 2002) (holding that

the use of pepper spray on non-violent protestors was exces-

sive force); Watkins v. City of Oakland, 145 F.3d 1087, 1093

(9th Cir. 1998) (holding that deputies’ use of a police dog is

subject to excessive force analysis); Mendoza v. Block, 27

F.3d 1357, 1362 (9th Cir. 1994) (same). In sum, Smith has

submitted a substantial amount of evidence from which a rea-

sonable jury could conclude that the force used against him

was excessive.7

C. Deadly Force

[15] Smith alleges that the defendants unnecessarily and

unreasonably used not only excessive force against him, but

also deadly force. He asserts that the latter type of force was

used when Officer Quinn ordered the police canine to attack

him. In Tennessee v. Garner, 471 U.S. 1 (1985), the Supreme

Court held that a police officer may not use deadly force “un-

less it is necessary to prevent escape and the officer has prob-

able cause to believe that the suspect poses a significant threat

of death or serious physical injury to the officer or others.” Id.

7

Defendants suggest an additional ground upon which the order for

summary judgment could be affirmed: qualified immunity. Whether the

officers are entitled to qualified immunity may depend in large part on fac-

tual determinations the jury will be required to make. Certainly, the use

of a police canine and pepper spray could, under clearly established law,

have constituted the use of excessive force in some circumstances, in

which case the officers would have been put on notice that their conduct

would be unconstitutional. See Mendoza v. Block, 27 F.3d 1357, 1362 (9th

Cir. 1994) (“[N]o particularized case law is necessary for a deputy to

know that excessive force has been used when a deputy sics a canine on

a handcuffed arrestee who has fully surrendered and is completely under

control.”); see also LaLonde v. City of Riverside, 204 F.3d 947, 961 (9th

Cir. 2000) (applying the Mendoza rule to the use of pepper spray by police

officers). We choose, however, not to resolve the issue of qualified immu-

nity on this appeal, preferring to allow the district court to consider that

question initially.

252 SMITH v. CITY OF HEMET

at 3. Thus, where a suspect threatens an officer with a weapon

such as a gun or a knife, the officer is justified in using deadly

force. See, e.g., Billington v. Smith, 292 F.3d 1177, 1185 (9th

Cir. 2002) (holding that deadly force was justified where a

suspect violently resisted arrest, physically attacked the offi-

cer, and grabbed the officer’s gun); Reynolds v. County of San

Diego, 84 F.3d 1162, 1168 (9th Cir. 1996) (holding that

deadly force was reasonable where a suspect, who had been

behaving erratically, swung a knife at an officer); Scott v.

Henrich, 39 F.3d 912, 914-15 (9th Cir. 1994) (suggesting that

the use of deadly force is objectively reasonable where a sus-

pect points a gun at officers); Garcia v. United States, 826

F.2d 806, 812 (9th Cir. 1987) (holding that deadly force was

reasonable where the plaintiff attacked a border patrol agent

with a rock and stick).

The issue presented by Smith is initially whether the use of

Quando to subdue him amounted to an unreasonable use of

deadly force; however, as no party to this case asserts that the

use of deadly force would have been appropriate here, the

issue is actually only whether the use of Quando constituted

deadly force. As we are reviewing an order of summary judg-

ment, all that we must decide is whether the use of Quando

to subdue Smith could have amounted to deadly force under

the facts of this case.

[16] Unfortunately, the Supreme Court did not explicitly

define what constitutes deadly force in Garner, and the defini-

tion that we have previously announced is incorrect. In Vera

Cruz v. City of Escondido, 139 F.3d 659, 663 (9th Cir. 1998)

(as amended), this court considered the meaning of the term.

In that case, we held that deadly force means “force reason-

ably likely to kill.” Id. at 660. In doing so, we expressly

refused to add “or result in serious bodily injury,” a phrase

that appears in the definition employed by all other circuits

that have defined the term. Id. at 661-62. Similarly, we delib-

erately chose “reasonably likely” rather than “creates a sub-

stantial risk,” the phrase employed by all other courts of

SMITH v. CITY OF HEMET 253

appeals to have confronted the question. Id. at 662-63. The

definition the other circuits have adopted and that we adopt

today is identical in most respects to that set forth in the

Model Penal Code. See Model Penal Code § 3.11(2) (1962).

In Vera Cruz, we reviewed the Model Penal Code defini-

tion of deadly force and rejected it for three reasons. 139 F.3d

at 662. First, we stated that the Model Penal Code definition,

which governs criminal liability, serves a different purpose

than the Garner standard which sets the boundaries of reason-

able police conduct under the Constitution. Id. We were con-

cerned that imposing personal liability on the basis of the

Model Penal Code definition would “make police timid and

deter activities necessary for our protection.” Id. Second, we

said that the Model Penal Code definition includes a subjec-

tive component, and that such a component constitutes “an

impermissible consideration in the Fourth Amendment con-

text,” the scope of which is limited to the objective reason-

ableness test adopted in Graham. Id. Third, we feared that the

“disjunctive ‘or’ would turn the deadly force rule into a ‘seri-

ous bodily injury’ rule, rendering Garner’s distinction

between ordinary force and deadly force a virtual nullity.” Id.

Smith asks us to reconsider our Vera Cruz ruling, and

points out that seven circuits now employ the definition of

“deadly force” that we rejected. Indeed, we stand alone in

adopting a definition of the term that upon reconsideration we

find to be unduly restrictive. See, e.g., Gutierrez v. City of San

Antonio, 139 F.3d 441, 446 (5th Cir. 1998) (deadly force

“creates a substantial risk of death or serious bodily injury”);

Estate of Phillips v. City of Milwaukee, 123 F.3d 586, 593

(7th Cir. 1997) (same); In re City of Philadelphia Litigation,

49 F.3d 945, 966 (3rd Cir. 1995) (adopting the Model Penal

Code definition); Ryder v. City of Topeka, 814 F.2d 1412,

1416 n.11 (10th Cir. 1987) (same); Robinette v. Barnes, 854

F.2d 909, 912 (6th Cir. 1988) (same); Pruitt v. City of Mont-

gomery, 771 F.2d 1475, 1479 n.10 (11th Cir. 1985) (same);

Mattis v. Schnarr, 547 F.2d 1007, 1009 n.2 (8th Cir. 1976)

254 SMITH v. CITY OF HEMET

(en banc), vacated as moot sub nom., Ashcroft v. Mattis, 431

U.S. 171 (1977) (same). We recognize the importance of con-

sistency across jurisdictions, and we take this opportunity to

bring our circuit into conformity with the other circuits and to

adopt a definition that is more compatible with the practicali-

ties and realities of today’s physical confrontations.8

In Vera Cruz, we were concerned that the definition we

rejected would “make police timid and deter activities neces-

sary for our protection” and “would turn the deadly force rule

into a ‘serious bodily injury’ rule, rendering Garner’s distinc-

tion between ordinary force and deadly force a virtual nulli-

ty.” 139 F.3d at 662. However, our concerns have turned out

to be overstated, and indeed unfounded. A definition includ-

ing “a substantial risk of serious bodily injury” is used by

police in all fifty states, the District of Columbia, and Puerto

Rico, and such use has not resulted in the difficulties we

feared. Equally important for this case, it is the definition that

California and the Hemet Police Department use. Adopting

the common definition of deadly force should impose no

more of a burden on law enforcement officials than already

exists throughout the nation — a burden that most law

enforcement officials have voluntarily chosen to impose upon

themselves. See Garner, 471 U.S. at 18-20 (discussing the

importance of actual police department polices when adopting

a Fourth Amendment rule).

The Vera Cruz court also criticized the Model Penal Code

definition because it contained an alternative subjective com-

ponent in addition to the primary objective one. Like the Vera

Cruz court, we attribute the inclusion of an alternative subjec-

8

In a footnote, the Eighth Circuit noted the conflict between Vera Cruz

and the law in other circuits and indicated its approval of the Vera Cruz

approach. See Kuha v. City of Minnetonka, 365 F.3d 590, 598 n.3 (8th Cir.

2004). Nevertheless, it applied the Model Penal Code definition, undoubt-

edly because that is the definition the court adopted in its en banc opinion

in Mattis, 547 F.2d at 1009 n.2.

SMITH v. CITY OF HEMET 255

tive component in the Model Penal Code definition to the fact

that the Model Penal Code is primarily designed to govern

criminal liability. However, the definition of deadly force

used in the other circuits in § 1983 cases, while frequently

labeled the Model Penal Code definition, is designed for use

in implementing the Fourth Amendment and necessarily dif-

fers in one minor respect from the Model Penal Code’s defini-

tion. For Fourth Amendment purposes, the objective part of

the test must be employed. See Graham, 490 U.S. at 397. In

short, courts do not use the subjective alternative when they

apply the “deadly force” test in § 1983 cases. We simply look

to the objective part of the test: whether the force employed

“creates a substantial risk of causing death or serious bodily

injury.” That the definition courts describe varies to this

extent from the full Model Penal Code version is no reason

for us not to employ a test that is now universally accepted

throughout the country.

[17] Furthermore, the fact that we are applying a definition

of deadly force to defendant police officers that is similar to

the definition we use when evaluating the force used by crimi-

nal defendants need not concern us. The Supreme Court and

our own court have often referred to the Model Penal Code

as persuasive authority in interpreting the Constitution. See,

e.g., United States v. U.S. Gypsum Co., 438 U.S. 422, 444

(1978) (relying on a Model Penal Code definition, the Court

stated, “[t]he ALI Model Penal Code is one source of guid-

ance upon which the Court has relied to illuminate questions

of this type”). Both the police we honor and the criminals we

prosecute are subject to the same binding Constitution. We

refuse to fabricate a constitutional distinction between police

and civilians that, far from being based on any constitutional

explanation, has been overwhelmingly rejected by judges and

law enforcement officials nationwide. We erred in Vera Cruz

when we rejected the definition that finds its origin in the

Model Penal Code, and we now take this opportunity to over-

rule that holding and adopt the definition of deadly force used

by the other circuit courts throughout the nation.

256 SMITH v. CITY OF HEMET

We need not here determine whether the use of a police

dog to subdue a suspect constitutes deadly force generally or

the circumstances under which such use might constitute such

force. Having announced the definition of “deadly force” we

leave to the district court the first opportunity to apply the

concept to the facts of this case. We note only that while we

have not in any of our prior cases found that the use of police

dogs constituted deadly force,9 we have never stated that the

use of such dogs cannot constitute such force. Cf. Robinette

v. Barnes, 854 F.2d 909, 913 (6th Cir. 1988) (although failing

to find that the police dog in that case constituted deadly

force, the court stated that “an officer’s intent in using a

police dog, or the use of an improperly trained dog, could

transform the use of the dog into deadly force”). Compare

Kuha, 365 F.3d at 598 n.3 (“[T]he use of a properly trained

police dog in the course of apprehending a suspect does not

constitute deadly force”).

III. CONCLUSION

For the foregoing reasons, we reverse the district court’s

grant of summary judgment. On the record before us, we can-

not conclude that Smith’s § 1983 action is barred by Heck; his

successful prosecution of this action will not necessarily

impugn his earlier conviction. Further, considering the evi-

dence in the light most favorable to Smith, a reasonable jury

could find that the defendants used excessive force. Finally,

we overrule Vera Cruz and adopt the universally accepted

definition of the term deadly force; we do not, however,

decide whether the officers used such force here, but leave

that question for initial consideration following remand. The

grant of defendants’ motion for summary judgment is

REVERSED AND REMANDED.

9

Of course, we have heretofore applied the unduly stringent Vera Cruz

test which we overrule today.

SMITH v. CITY OF HEMET 257

SILVERMAN, Circuit Judge, with whom KLEINFELD and

CALLAHAN, Circuit Judges, join, dissenting:

By analyzing separately every single second of the approxi-

mately five-minute encounter between Smith and the Hemet

police, the majority misses the forest for the trees. Here’s the

forest: From the moment the police arrived and told Smith to

remove his hands from his pockets, until the police finally

handcuffed him, the police were trying to subdue and detain

Smith, and he resisted. The undisputed facts show that this

was one continuous, uninterrupted sequence of events. The

majority gets off the track by focusing on how many different

ways Smith might have violated the law after the police

arrived at the scene. It does not matter. What matters is that

Smith’s actions, however numerous, culminated in one arrest.

He was then convicted, by guilty plea, of resisting an officer.

In California, a conviction for resisting arrest establishes that

the force used to effect the arrest was not excessive. People

v. White, 101 Cal. App. 3d 161, 164 (1980). That is why

Smith’s § 1983 excessive force lawsuit is barred by Heck. If

his lawsuit were successful, the civil judgment in his favor

would be inconsistent with his criminal conviction.

The contrast between this case and Sanford v. Motts, 258

F.3d 1117 (9th Cir. 2001), illustrates the point. In Sanford, the

plaintiff had already been arrested and handcuffed when she

was allegedly punched in the face by Officer Motts. Id. at

1118. We held: “Excessive force used after an arrest is made

does not destroy the lawfulness of the arrest” for a violation

of California Penal Code § 148. Id. at 1120 (emphasis added).

Because a successful § 1983 claim for events that took place

subsequent to her arrest could in no way imply the invalidity

of her § 148 conviction, Sanford’s conviction for violating

§ 148 did not trigger the Heck v. Humphrey bar to her § 1983

lawsuit.

This is in sharp contrast to the present case where the alleg-

edly excessive force was employed while Smith was being

258 SMITH v. CITY OF HEMET

arrested. It does not matter how many times Smith refused to

take his hands out of his pockets or to step off the porch. It

does not matter how many times he refused to turn around or

how many times he may have flailed his arms as the police

tried to handcuff him. The undisputed facts show that “there

was no break,” to use the words of the Cunningham court,

between Smith’s disobedience and the police response that

culminated in his arrest. See Cunningham v. Gates, 312 F.3d

1148, 1155 (9th Cir. 2002). Smith’s “provocative act” and

“the police response he claims was excessive . . . are so

closely interrelated, [Smith’s] conviction forecloses his exces-

sive force claim.” Id.

This is an issue of California law, and in a case with facts

very close to Smith’s, the California Court of Appeal con-

cluded that Heck barred a § 1983 suit where the plaintiff had

been convicted of a § 148 violation involving multiple acts of

resistance. Susag v. City of Lake Forest, 94 Cal. App. 4th

1401, 1405-06 (2002). In Susag, a deputy sheriff noticed a car

with an expired registration and called for a tow truck. Id. at

1406. Although Susag initially denied owning the car, after it

was hitched to the tow truck he got into the driver’s seat. He

was ordered out of the car “several times” but refused to get

out — one act of resistance. He started the car and accelerated

the engine — another act of resistance. The deputy then

pepper-sprayed Susag and again ordered him to get out of the

car, which Susag refused — another act of resistance. Susag

then pushed one of the deputies — yet another act of resis-

tance — and struggled with the deputies when they tried to

handcuff him — a final act of resistance. A jury found him

guilty of one count of violating § 148. Susag and his family

subsequently brought a § 1983 suit alleging excessive force

and other claims against the officers involved. Id. at 1407.

The trial court granted summary judgment to the officers on

the grounds that Susag’s suit was barred by Heck. Id.

The California Court of Appeal affirmed. In doing so, the

court rejected Susag’s argument that the Heck bar did not

SMITH v. CITY OF HEMET 259

apply when it was unclear which act of acts of resistance

formed the basis of the Susag’s § 148 conviction.

[Susag] contends the record in his criminal case,

which is not before us, does not reflect which acts

formed the basis for his conviction, and as a result

he can pursue his section 1983 action for the offi-

cer’s use of pepper spray before he was ultimately

subdued and placed in the patrol car. We disagree

and conclude that any claim of excessive force based

on discrete acts that occurred immediately preceding

[Susag’s] arrest is barred by the Supreme Court’s

holding in Heck v. Humphrey, [citation omitted],

since a finding in his favor would necessarily imply

the invalidity of his conviction under Penal Code

section 148, subdivision (a).

Id. at 1409-10. In addition, the Court of Appeal contrasted

Susag’s situation to the one presented in Sanford, noting that,

“[Susag] has alleged no claims of excessive force that took

place after he was finally subdued and placed in the patrol

car.” Id. at 1410. (emphasis added.)

The majority argues that Smith’s conviction might have

been based only on his conduct while on the porch, before any

force was used; ergo, the conviction fails to establish the law-

fulness of the force employed from that point on. This argu-

ment is foreclosed by Susag. In addition, under California’s

continuous course of conduct rule, Smith’s conviction for

resisting arrest necessarily includes all of the acts that com-

prise a continuous or indivisible transaction. People v.

McFarland, 58 Cal. 2d 748, 760 (1962); People v. Simon, 21

Cal. App. 88, 90 (1913). The major considerations in deter-

mining whether similar acts are part of the same transaction

are the amount of time elapsed between the discrete incidents,

and whether there was any break in the criminal activity. See

People v. Jefferson, 123 Cal. App. 2d 219, 221 (1954) (hold-

ing that two distinct acts of assault with a deadly weapon tak-

260 SMITH v. CITY OF HEMET

ing place within a fifteen minute period “were a part of the

same incident, and they could not reasonably be held to con-

stitute two separate offenses, each complete in itself, and each

of which would require a separate charge”); People v. Mota,

115 Cal. App. 3d 227, 233 (1981). Had discrete acts of resis-

tance taken place over the course of an hour rather than five

minutes, they might not have constituted the same offense.

See People v. Moreno, 32 Cal. App. 3d Supp. 1, 8-9 (1973)

(holding two instances of violating § 148 were two offenses

because thirty minutes elapsed between the two incidents and

“[i]n the intervening space of time the defendant had com-

pletely calmed down, and ceased his criminal activity”). Here,

however, it is undisputed that Smith’s encounter with the

Hemet police took place during one continuous, uninterrupted

five-minute period.1

The continuous course of conduct rule is for the protection

of criminal defendants like Smith. The rule bars the state from

prosecuting a defendant again for acts that were part and par-

cel of the same continuous transaction. It is this rule that now

prevents the State of California from charging Smith anew for

the conduct occurring after he first refused to take his hands

out of his pockets. And again for refusing to put his hands on

his head. And again for not turning around. And again for not

coming off the porch. And again for refusing to submit to

handcuffing. Smith was charged and convicted of one count

of resisting an officer that necessarily encompassed the entire

sequence of events leading up to his arrest. If, for whatever

reason, Smith wanted to waive the protection of that rule and

plead guilty to one identified act, leaving himself open to pos-

sible prosecution for acts that otherwise would be dead letters,

1

The majority says that the encounter lasted “substantially longer than

five minutes.” I guess that depends on what “substantially longer” means.

According to Smith’s brief, Officer Reinbolt, the first officer to respond,

started the tape recorder when he arrived at the scene. The transcript of the

recording shows that the tape was turned off after Smith had been hand-

cuffed and was having his eyes washed out with water from a garden hose.

From start to finish, the recording lasted five minutes and thirteen seconds.

SMITH v. CITY OF HEMET 261

it was incumbent upon him to say so. See Susag, supra, at

1410 (“Once the defendants met their burden of proving

[Susag] had an undisturbed conviction under Penal Code sec-

tion 148, subdivision (a), the burden shifted to him to provide

evidence of excessive force that would not necessarily imply

the invalidity of his conviction.”).

The majority’s citation of cases from other circuits reveals

its misunderstanding of how state criminal law affects the

Heck analysis. The question in this case is what a California

resisting arrest conviction establishes. The citation to Robin-

son v. Doe, 272 F.3d 921 (7th Cir. 2001), and other federal

cases arising from other states, where the criminal law is dif-

ferent, sheds no light on the matter. In Illinois, for example,

excessive force does not render an arrest illegal. Id. at 923.

(“Police might well use excessive force in effecting a per-

fectly lawful arrest.”). As we have seen, the law is otherwise

in California.2

To summarize: If Smith had been gratuitously sprayed with

mace or bitten by the dog after he had been arrested, his con-

viction for resisting an officer would not have barred his

§ 1983 lawsuit. However, everything Smith complains of took

place in the course of arresting him. The district court cor-

rectly ruled that Smith’s excessive force lawsuit was barred

by Heck v. Humphrey, and for that reason, I respectfully dissent.3

2

It is also the rule in California that multiple acts of resistance culminat-

ing in an arrest for resisting an officer are subsumed in one California

Penal Code § 148 conviction. Susag, 94 Cal. App. 4th at 1409-10. The

majority may dislike that rule, but is not free to substitute its own view of

California state law for that of the California Court of Appeal. See Mendez

v. Small, 298 F.3d 1154, 1158 (9th Cir. 2002).

3

Because the lawsuit is Heck-barred, it is unnecessary to reach, as the

majority does, the question of whether the force used to arrest Smith was

excessive or whether the use of the dog constituted deadly force. How-

ever, in the interest of the completeness of the story, it should be noted

that prior to this incident, Quando’s teeth had been capped and were inca-

pable of inflicting deep puncture wounds. The bite wounds sustained by

Smith were superficial and were cleaned at the scene by paramedics.

Smith was taken to a hospital immediately after his arrest, before being

booked into jail. He was evaluated at the hospital but required no further

treatment of any sort.