'Smith' Bars Police-Brutality Victims From Vindicating Wrongs

In Smith v. City of Hemet, 356 F. 3d 1138 (9th Cir. 2004), a split 9th U.S. Circuit Court of Appeals panel recently upheld dismissal of a plaintiff's excessive police force claim because he earlier pleaded guilty in state court to resisting arrest. A request for en banc review is pending. The 9th Circuit should grant review and reverse.
        Smith, angry at his circumstances on the night of his arrest, delayed taking his hands out of his pockets when asked. Instead, he talked back to the officers. He conceded as much by pleading guilty in state court to violation of Penal Code 148, which makes it a misdemeanor to willfully resist, delay or obstruct a peace officer in the discharge of his duty. But his relatively minimal resistance failed to justify the subsequent police dog attack and pepper spray.
        Nonetheless, the Smith panel held that the guilty plea precluded the subsequent civil lawsuit. The court reasoned that, because excessive force should have been a successful defense to a conviction for resisting arrest, a civil judgment for excessive force would imply the criminal conviction was invalid. Under an aptly termed "exhaustion" requirement created in Heck v. Humphrey 512 U.S. 477 (1994), that implication is enough to preclude Smith's civil suit.
        In reaching this result, however, the panel made the dubious finding that the force used and the arrest were part of one continuous, unseverable incident. But there is no guarantee that a state jury would have seen these events as one continuous incident. Indeed, it seems likely that the force on Smith came after the delay because there were no charges lodged against him other than delay. Nor was it obvious the state court saw it as one continuous incident when it accepted the guilty plea and sentenced Smith to three years probation.
        Heretofore, the accepted and principled way to determine whether force is excessive was to let a jury decide. Before Smith, it was assumed that, in California as in most other jurisdictions, a conviction or plea to a misdemeanor resisting arrest charge did not preclude an excessive force claim. For example, in Sanford v. Motts 258 F. 3d 1117 (9th Cir. 2001), a woman who was punched after she interfered with a peace officer was permitted to proceed on her federal claim. Nor did either state or federal courts interpret neutral preclusion doctrines, such as res judicata, to bar such excessive force claims.
        The pre-Smith rule comports with common sense: it is easy to envision circumstances where the amount of force applied is grossly disproportionate to perceived disobedience or resistance. Recall, for example, the water cannons and dogs unleashed on protesters in Montgomery, Ala., or the beating endured by Rodney King.
        Moreover, the breadth of Penal Code 148 invites abuse. In California, the claim of resisting arrest is the most commonly employed "cover" offense when police use excessive force. In Dole v. County of Los Angeles, A-481947 (L.A. Super. Ct. Aug. 16, 1995) - the largest verdict ever upheld for police abuse - one Los Angeles County Sheriff's deputy candidly admitted in deposition testimony the policy he applied is: hurt a man, charge a man. No misdemeanor offense is more amorphous or easier to prove than that a person protesting or arguing with an officer intentionally delayed the officer's official duties.
        Rarely will prosecutors thwart this invidious but prevalent policy. Although they are obliged to act independently of civil concerns, prosecutors have generally proven so biased in favor of police in prosecuting such violations that an entire body of federal case law has developed to restrain prosecutors from demanding civil releases from police abuse victims as a condition of plea agreements. Now, under Smith, all the prosecution must do to undermine a subsequent civil action is negotiate a probated sentence.
        Short of letting a jury make what is inherently a fact intensive and value laden determination, there is no principled way for courts to abstractly distinguish between force during and after commission of the offense. Instead of a clear, neutral rule, Smith creates a Rorschach test regarding what is a continuous as opposed to a severable event. The only reliable prediction is that the more overtly pro-law enforcement the judge, the more likely the judge will characterize an otherwise logically discrete use of force as part of one continuous arrest so as to support dismissal.
        Ironically, Smith directly conflicts with an unpublished decision by the same panel, heard the same day: Rhead v. Mundy 2003 U.S. App. LEXIS 15537. The plaintiff in Rhead, who pleaded nolo contendere to a resisting arrest charge under Section148, was permitted to proceed notwithstanding his allegations that police, in one continuous action, forcefully beat, pepper sprayed and manhandled him into a patrol car. The only fact that apparently motivated the different result was the state court judge who took Rhead's plea assumed on the record that Rhead's civil action was not precluded.
        Smith indirectly conflicts with other panel decisions as well. For example, in Headwaters Forest Def. v. County of Humbolt 276 F. 3d 1125 (9th Cir. 2002), the 9th Circuit held that police used excessive force when swabbing oleoresin capsicum spray into the eyes of protesters conducting a passive sit-in in order to more easily facilitate their removal. If Smith was followed, the Headwaters plaintiffs might not have made it into federal court because they were obviously resisting at the time they were swabbed or, some might add, tortured.
        State courts are making a similar mistake. In Susag v. City of Lake Forest (2002) 94 Cal. App. 4th 1401, the 4th District Court of Appeal, relying upon Heck, dismissed an analogous federal excessive force claim. But this panel went a step further, dismissing plaintiff's state claim for battery - even though the matter was not briefed - on grounds that state law should comport with federal law as a matter of "public policy." That California courts went more than 150 years without having to reach the issue should have been a clue to the court that it was improperly freelancing in a legislative sphere.
        It would be comforting to dismiss this judicial activism against civil rights plaintiffs as normal give and take within reasonable judicial prerogative, or tempting to rest content that such bias is balanced by commensurate activism of more liberal or libertarian judges and the remedial efforts of legislative bodies. But the reality is that the more chisels are taken to pillars of freedom, the less structure remains. Rarely is stone replaced: In the history of federal civil rights, there are nine decades of retrenchment for every decade where the trend has been to expand individual rights and remedies. The institutional instinct to preserve freedom does not build until freedom is severely threatened or lost.
        It was, for example, only the novel technology and distribution of the video camera that demonstrated a gross disparity between what the public and, by contrast, some police thought was excessive force on King. This dissonance was addressed with protest, riots and public inquiry commissions because it was inadequately addressed in the courts.
        Until all such incidents are captured on videotape, however, future victims similarly situated to King will be charged with delay, prosecuted at the urging of interested police to sympathetic prosecutors, often convicted, then barred under Smith from vindicating wrongs committed against them. Judges, instead of juries, will decide whether the second or 22nd baton blow is part of a continuous transaction and, ultimately, whether force is reasonable.
        Smith is wrong. So is the incessant judicial tinkering with what should be a simple, neutral system of constitutional torts. It is the courts' role to evenly apply constitutional and common law rights and remedies, and juries' role to decide facts, such as whether force used is reasonable. The 9th Circuit should begin restoring this elegant balance by reversing Smith.