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Ninth Circuit:
Man May Sue Over Arrest Despite Conviction for Resisting
Majority Says Pleading Guilty to Obstructing Officers Does Not Bar Suit Alleging Excessive Force Based on Same Incident; Lee Dissents
By Kimber Cooley, associate editor
The Ninth U.S. Circuit Court of Appeal held yesterday that a man’s conviction for obstructing police officers does not act as a bar against an excessive force lawsuit based on the same incident—despite U.S. Supreme Court precedent holding that a lawsuit suit may not proceed if a plaintiff victory would challenge the validity of the criminal case—where the event could be looked at as multiple, separate acts of resistance.
At issue is the 1994 high court decision of Heck v. Humphrey which established, in an opinion by Justice Antonin Scalia (now deceased), that a civil action seeking damages based on constitutional violations cannot be maintained if “a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence.”
Asserting that his Fourth Amendment rights were violated was Ronald Martell, who pled guilty in October 2020 to obstructing the police in violation of Penal Code §148(a)(1), which makes it a crime to “willfully resist[], delay[], or obstruct[] any…peace officer… in the discharge…[of] any duty of his or her office.”
The incident in question occurred on Sept. 3, 2020, after San Diego County Deputy Sheriffs Brian Cole, Kerry Johnson, David Lovejoy, David Lannon, and Jonathan Young responded to Martell’s El Cajon home to investigate a report of domestic violence. The deputies confronted Martell in a hallway and ordered him to “get on the ground.”
The deputies pushed Martell to the floor, causing him to suffer a dislocated shoulder and rotator cuff tear, after he failed to comply with their orders. Martell’s plea agreement failed to specify any particular action as the basis of the conviction.
Civil Complaint
In June 2022, he filed suit against the deputies under 42 U.S.C. §1983, alleging that shoving him to the floor amounted to excessive force under established Fourth Amendment jurisprudence in light of his calm demeanor at the time.
District Court Judge Janis L. Sammartino of the Southern District of California dismissed the civil complaint without leave to amend on Jan. 9, 2023, rejecting Martell’s claim that his failure to get on the ground constituted a separate incident from the officer’s use of force approximately 10 seconds later.
Senior Circuit Judge William A. Fletcher wrote the opinion reversing the judgment of dismissal, citing Ninth Circuit precedent establishing that Heck does not act as a bar to civil action if the alleged police misconduct is separable from the acts of resistance by the defendant. Fletcher wrote:
“[T]he record is silent about which one (or more) of Martell’s resisting or obstructing acts was (or were) the factual predicate of his guilty plea. Because of that silence, a finding that the deputies used excessive force when Martell ‘was thrown face first down to the ground’ would not necessarily imply the invalidity of Martell’s conviction. Absent an indication in the record that the factual predicate for his conviction was resistance to or obstruction of the specific use of force he now challenges, Martell’s conviction would be sufficiently supported by any of his resisting or obstructing actions before and after that use of force.”
Circuit Judge Jacqueline H. Nguyen joined in the opinion. Circuit Judge Kenneth K. Lee dissented, arguing that the decision continues an erosion of the principles announced in Heck.
Fletcher, looking Ninth Circuit jurisprudence following the Heck case, said:
“To determine whether a § 148(a)(1) conviction bars a subsequent damages claim for excessive force, a court must look to the particular act or acts for which the plaintiff may have been convicted….The court cannot conclude generally that the plaintiff’s conviction was ‘based on the entire incident as a whole,’ such that a finding of excessive force at any time during the incident would necessarily conflict with the conviction.”
He added that a civil action alleging excessive force is not barred “even when the plaintiff alleges the officer used excessive force during one of several resisting or obstructing acts that ‘could be the basis for the guilty verdict’ if the record does not show that this particular act was the factual predicate for the plaintiff’s § 148(a)(1) conviction.”
Martell’s Resistance
Looking to the facts of the case, he reasoned:
“First, Martell failed to obey the deputies’ order to ‘get on the ground.’ Instead of getting fully on the floor, he knelt on one knee. Assuming that he understood the deputies to have ordered him to get prone on the floor rather than to kneel, his failure to comply with the order was an act of resistance or obstruction. That failure to comply was enough, in itself, to support his conviction under § 148(a)(1).”
He continued:
“Second, after the deputies pushed him to the floor, Martell failed to comply with several orders of the deputies. About a minute after the deputies pushed Martell to the floor, they ordered him to roll onto his side so he could stand and leave the home with them. Martell refused to do so. Martell then refused to comply with the deputies’ order to sit up and bring his knees to his chest. Several minutes later, because of Martell’s continuing refusal to stand, the deputies were obliged to forcibly remove him from the house. These acts were not resistance to or obstruction of the use of force Martell claims was unlawful.”
Fletcher declared that “[t]hese independently sufficient bases for Martell’s guilty plea would be unaffected by a finding that the deputies used excessive force when they allegedly ‘wrenched [his arms] so severely that doctors later that day diagnosed Martell with a dislocated shoulder and rotator cuff tear.’ ”
The jurist remarked that the decision was “not changed by the fact that the resisting or obstruction acts and the lawful use of force were separated…by ten seconds” as “[w]e have previously held that a § 1983 suit is not barred by Heck even when the allegedly excessive force and the obstructive act that is the basis of the plaintiff’s conviction occur” in a continuous chain of actions.
Lee’s View
Lee wrote:
“[T]he majority opinion separates Martell’s brief scuffle with the deputies into several seconds long intervals such that his guilty plea can be read to cover only one of those artificially severed events.
“That holding is just another step in this circuit’s slow erosion of the Heck bar. We have already said that spatial and temporal distinctions are not dispositive when analyzing convictions under § 148(a)(1). Now, the majority opinion goes even further and slices a fleeting incident into multiple isolated events—even though Martell’s entire interaction was a single, inseverable event—to evade the Heck bar. I respectfully dissent.”
Turning to the incident in question, he reasoned:
“Here, there are no isolated contexts. Martell was ordered to get on the ground; he resisted; and while he was resisting, he was pushed to the floor….The majority opinion seeks to subdivide this ten-second interval: perhaps the actions giving rise to Martell’s § 148(a)(1) conviction were solely the three seconds where the deputies ordered him to get down to the floor and he hesitated, and not the next second, when Martell continued to refuse and the deputies moved towards him to push him to the ground….But what framework does that leave us with? If we can find different factual contexts from second to second—meaning, if we can distinguish one second of hesitating to obey a deputy’s order from one second of resisting it—then the exception swallows the rule, and the Heck bar is no bar at all.”
The case is Martell v. Cole, 23-55120.
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