Interfering with a police officer does not preclude all claims of excessive force

When does a conviction for interfering with a police officer preclude a subsequent civil lawsuit for excessive force, when both arise from related underlying facts?

It is an important question for three reasons. First, even if someone has criminally interfered with an officer, it does not justify officers using disproportionate force in subsequently making the arrest.

Second, such charges are too often pretextual. They are the officer’s ex post facto excuse for administering a beating. Often called “cover offenses,” the charges and related reports gloss over otherwise unjustified police abuse. In such instances, the criminal court tail improperly wags the civil court dog.

Third, interactions between the constable and citizen are both constitutionally important and fraught. It is constitutionally imperative, as expressed in Hill v. City of Houston 482 U.S. 451 (1987), that, in the face of verbal challenges to police action, officers must respond with restraint.

“Mindful that the preservation of liberty depends in part upon the maintenance of social order,” the high court explained, “a certain amount of expressive disorder not only is inevitable in a society committed to individual freedom, but must itself be protected if that freedom would survive.”

Ensuring, then, rights have remedies and juries determine triable facts requires that judges correctly shape the doctrines at such intersections of criminal and civil law.

Recently, in Lemos v. County of Sonoma, 5 F.4th 979 (9th Cir. 2021), the Ninth Circuit, sitting en banc, got it right.

Lemos started as a family argument playing out around a truck parked in front of the family home. It attracted a sheriff’s deputy who promised, “I’m not going to leave until I’ve resolved this.” Ultimately, the deputy arrested Lemos, an 18-year-old family member who came out of the house, possibly intoxicated.

Lemos was accused of four criminal acts constituting interference: [1] making physical contact with the officer as he was trying to open a truck door where the woman’s sister had been sitting; [2] placing herself between the officer and a family member; [3] blocking the officer from opening the truck door or speaking to the family member; and [4] pulling away when the officer grabbed her. The fourth act occurred just before the deputy tackled and controlled her. The fourth event she alleges caused her injury.

The judge in the criminal prosecution instructed the jury that any one of the four acts would support the interference element of the offense under Penal Code § 148(a)(1), and that the jurors must agree on which act constituted the offense. The jury concluded Lemos had committed the offense. But the verdict form failed to indicate and they were never polled on which of the four acts they had agreed on.

In turn, the district court lifted its stay of Lemos’ civil excessive force claim, then granted summary judgment in favor of the defendant deputy, his county employer and the county’s then sheriff. On review, the initial three judge Ninth Circuit panel, divided 2-1, affirmed. The appellate court’s majority reasoned that, under Heck v. Humphrey 512 U.S. 477 (1994), the criminal conviction precluded the subsequent civil lawsuit because the civil action, to succeed, would “necessarily” challenge the validity of the criminal judgment. In other words, if, during the entire event, the deputy used unreasonable force, by the terms of the criminal statute, the jury should not have found in favor of the prosecution. Res judicata.

But the question here, as it is in many such similar cases, is: What is the event? The underlying criminal trial of Lemos left something of a black box. The instructions required the jury to agree unanimously on which of four possible acts Lemos committed, but the verdict form did not require the jury to identify on which of the four acts they agreed.

If, for example, the jury found that Lemos was guilty of obstructing only during one or more of the first three events, then a subsequent civil jury might find the deputy used excessive force during the fourth event. Such a finding does not “necessarily” undermine the validity of the criminal conviction.

In contrast, the earlier Ninth Circuit panel ruling on the matter reasoned that there was “no temporal or spatial distinction or other separation between the conduct for which Lemos was convicted, by a jury, and the conduct which forms the basis of her Section 1983 claim,” i.e., her civil lawsuit.

If this were an academic contest, the prize for analyzing temporal and spatial distinctions against human conduct might go to the scholar who best approximates a philosopher the caliber of Bertrand Russell. The application of what constitutes conduct that lacks temporal or spatial distinction requires a certain agility mediating between abstract metaphysical concepts and an earthier tackle and arm twist.

If it is not an academic contest, the question remains whether the determination should be lodged with a judge or jury. One or the other is not necessarily better suited or more prone to get such borderline determinations right, because both are prone to bias and error.

In our justice system, however, it is a matter of constitutional principle that facts belong to juries. In the long run, this system better delivers public justice and deterrence against misconduct.

It is not, then, up to federal courts to supply missing clarity on a factual issue which the criminal jury might have been asked to give, but wasn’t and didn’t. Where, as here, the underlying factual context can be abstracted as one or four factual contexts, the analysis bends toward the determination being properly considered a factual, not legal issue, rightly for a jury.

The dissent accuses the majority of “temporal hair splitting.” But the criminal verdict came with four obvious split ends – reason enough for handing a jury a comb.

The dissent further contends that the majority undermines Heck’s strong policy “against the creation of two conflicting resolutions arising out of a single transaction, and ignores the Supreme Court’s concerns for finality and consistency between criminal and civil judgments.”

Single transaction? Four separate events or one continuous one? The answer can never be entirely satisfactorily resolved, still another argument for opening it to a jury, rather than closing it in doctrine.

The 18th century Irish philosopher, George Berkeley, famous for asking whether a tree falling in an unattended forest makes a sound, argued that nothing exists in space or time not somehow dependent on the person perceiving it, except the person themself.

Goaded by the suggested ingenuity of Bishop Berkeley’s abstraction from reality, his contemporary, Samuel Johnson, struck his foot “with mighty force against a large stone, till he rebounded from it, – `I refute it thus’.”