Supreme Court of California Justia
Citation 43 Cal. 4th 885, 183 P.3d 471, 76 Cal. Rptr. 3d 787

Yount v. City of Sacramento


Filed 5/19/08

IN THE SUPREME COURT OF CALIFORNIA

STEVEN YOUNT,
Plaintiff and Appellant,
S139762
v.
) Ct.App.
3
C046869
CITY OF SACRAMENTO et al.,
Sacramento
County
Defendants and Respondents. )
Super. Ct. No. 01AS04272

Plaintiff Steven Yount suffered injuries when Sacramento Police Officer
Thomas Shrum shot him in the left buttock as Shrum and three other officers were
trying to transport him to jail following his arrest for driving under the influence of
alcohol (DUI). Just prior to the shooting, Yount, despite being in handcuffs and
leg restraints, was struggling and threatening the officers. Officer Shrum,
intending to draw and fire his Taser gun in order to subdue Yount, mistakenly
pulled out and discharged his pistol instead.
As a result of this incident, Yount pleaded no contest to violating Penal
Code section 148, subdivision (a)(1) (resisting, delaying, or obstructing an officer
in the performance of the officer’s duties). He then brought this action against the
City of Sacramento and Officer Shrum for damages arising from the violation of
his civil rights under title 42 United States Code section 1983 (section 1983) and
asserted a common law claim of battery as well.
1



Defendants argued that the section 1983 claim must be dismissed as an
improper collateral attack on Yount’s criminal conviction under Heck v.
Humphrey (1994) 512 U.S. 477 (Heck), which bars a plaintiff from prosecuting a
section 1983 action that necessarily implies the invalidity of his or her criminal
conviction or sentence until that conviction or sentence has first been invalidated,
and that the battery claim must be dismissed under analogous state authority (see
Susag v. City of Lake Forest (2002) 94 Cal.App.4th 1401, 1410-1413). By
stipulation of the parties, a bifurcated court hearing was had on the issue of
whether Yount’s civil claims were barred under Heck and Susag by his criminal
conviction. The trial court, after hearing from seven eyewitnesses, ruled that the
claims were barred and entered judgment for defendants. The Court of Appeal
reversed, finding the possibility that Officer Shrum’s alleged use of excessive
force may have been temporally distinct from the acts that formed the basis of
Yount’s no contest plea to resisting the officers sufficient to avoid the Heck bar.
In so doing, the Court of Appeal disagreed with Susag, which had, on somewhat
similar facts, viewed the plaintiff’s criminal conviction as encompassing all of the
acts of resistance supported by the evidence.
We granted review to resolve the conflict. For the reasons set forth below,
we find that Yount’s claims are barred to the extent they allege that Officer Shrum
was not entitled to use force at all in this incident. Yount’s resistance justified the
officers’ use of reasonable force in response. (Pen. Code, § 835a.) However, as
defendants concede, the use of deadly force was not reasonable in this instance.
Yount’s conviction for violating Penal Code section 148, subdivision (a)(1) did
not in itself justify the use of deadly force, either. Accordingly, Yount’s civil
claims are not barred to the extent they challenge Officer Shrum’s use of deadly
force. We therefore affirm in part and reverse in part the judgment of the Court of
Appeal.
2

BACKGROUND
When plaintiff Steven Yount left his home in the early morning hours of
March 10, 2001, he was very drunk. He had consumed more than a six-pack of
beer and an unknown amount of rum. He drove out in search of more beer, but
had no recollection of arriving at the 7-Eleven store on La Riviera Drive in East
Sacramento, no recollection of being told that he could not purchase beer after
2:00 a.m., no recollection of staggering and swaying out of the store and getting
back into his car, and no recollection of his struggle with the police attempting to
effect his arrest that resulted in his being shot, accidentally, in the left buttock.
Daniel Powell, a private security guard, saw Yount in the parking lot of the
7-Eleven prior to the shooting. Yount was visibly drunk and heading towards his
car, so Powell placed a call to the police. Around that same time, Officer Samuel
Davis of the Sacramento Police Department drove into the parking lot. Powell
directed Officer Davis to Yount’s car, which was starting to back out, and warned
him that Yount was drunk. Officer Davis pulled his patrol vehicle behind Yount’s
car to block its exit and got out of his car to talk to Yount.
Yount’s eyes were glassy and red. When asked whether he had ever been
arrested before for driving under the influence, Yount responded, “Which date?”
Officer Davis asked Yount to step out of the car. Yount did so but lost his balance
and “kind of fell into” the officer. Yount came willingly part of the way to the
patrol vehicle, but then became apprehensive and refused to get inside. Officer
Davis was eventually able to maneuver him into the back seat. As Officer Davis
continued his investigation, Yount yelled, “[Y]ou can’t do anything with me. You
are not going to take me to jail, nigger,” and shouted other obscenities and racial
slurs. Yount also banged his head and kicked against the side and window of the
patrol vehicle. Concerned that Yount was going to injure himself, Officer Davis
asked him to stop. Yount replied, “Fuck you.”
3

With the assistance of two private security guards at the scene, Officer
Davis managed to pull Yount out of the patrol vehicle and handcuff him. The
three of them then placed Yount, whose resistance was undiminished, back in the
patrol vehicle. As Officer Davis tried again to resume his investigation, Yount
continued to bang his head and feet against the doors and to make as much noise
as he could, further indicating that he was at risk of hurting himself.
When Officer Debra Hatfield of the California State University Police
Department, Sacramento, and Officers Daniel Swafford and Thomas Shrum of the
Sacramento Police Department arrived to assist minutes later, Officer Davis
explained that he needed their help in completing the written DUI report, as he
was supposed to be taking over as acting sergeant for the entire downtown area.
As part of that assistance, Officer Shrum opened the door to ask Yount for
identification, but Yount “just popped out” of the vehicle and tried to “move right
in [Shrum’s] face” and continued yelling and cursing. Officer Shrum retrieved
Yount’s wallet himself and had to force Yount back into the patrol vehicle.
Unfortunately, once back in the patrol vehicle, Yount resumed banging and
shaking it, as well as yelling and cursing. Officers Hatfield, Swafford, and Shrum
attempted to calm him down, to no avail. They warned him they would use a
Taser if he did not cooperate, but Yount taunted them, “Shoot me, shoot me, shoot
me” and kicked his legs at Officer Shrum. Officer Swafford went to the other side
of the vehicle and Tasered Yount in the back, which caused him to interrupt his
resistance for a few minutes, but Yount then became more violent. He called
Officer Davis a “nigger” and Officer Hatfield a “whore” and expressed his hope
that they all would die that night. He also started kicking at the car window with
both feet. Officer Shrum saw the window start to flex and, as Officer Davis
started walking towards it, “the thing just explode[d] in his face.”
4

Because of Yount’s resistance, Officer Davis decided that Yount’s legs
needed to be immobilized before they could transfer him to another patrol vehicle.
Yount, however, continued to be uncooperative and fought to stay in the car. The
officers eventually succeeded in pulling Yount out of the damaged vehicle, but the
effort caused Officer Davis to stumble backwards and hit his elbow on the ground.
Yount fell on top of Officer Davis, kicked Officer Davis close to his groin, and
spat on him. Officer Davis then got on top of Yount, who continued to struggle
and shout, and placed his knee on Yount’s upper back to keep him on the ground.
Officer Hatfield grabbed his left leg; Officer Shrum grabbed his right. The
officers succeeded in securing Yount’s ankles together, but they were not able to
connect the ankle restraint to his wrists.
Despite the restraints on his wrists and ankles, Yount still continued to
resist. He tried to bite and spit at the officers near his head. He tucked his body in
to kick more forcefully at the officers near his feet. Officer Shrum was having
trouble holding onto Yount’s knees and, believing Yount posed a risk of injury to
himself and the other officers, decided to use his Taser. Officer Shrum pulled
what he thought was his Taser and fired it at the back of Yount’s upper thigh. It
was only then that he looked down at the weapon in his hand and saw he had
mistakenly grabbed his pistol. Once the officers ascertained that Yount had
indeed suffered a gunshot wound, they called for medical assistance.
Two independent eyewitnesses, Daniel Powell and Robert Corke,
confirmed that Yount had been resisting the officers up until the time he was shot.
There is no evidence in the record that Yount committed any act of resistance after
he was shot.
Yount’s blood-alcohol level following his arrest was determined to be
0.296 percent.
5

Criminal Proceedings
An amended criminal complaint charged Yount with violently resisting all
four officers in the performance of their duties (Pen. Code, § 69; count 1) as well
as battery of a peace officer (id., § 243, subd. (c)(2); count 2) and two counts of
driving under the influence (Veh. Code, §§ 23152, subds. (a), (b); counts 3 and 4).
On June 19, 2001, after Yount waived his right to a preliminary hearing, he
pleaded no contest to DUI with three prior DUI convictions (Veh. Code, §§ 23550,
23626) and to the related misdemeanor offense of violating Penal Code section
148, subdivision (a)(1) (resisting an officer). The remaining counts were
dismissed. Yount stipulated to the facts in count 1, and the court found a factual
basis for the plea as to each count. Yount was placed on probation for five years
and ordered to serve 270 days in county jail and pay specified fines.
Civil Proceedings
On October 28, 2002, Yount filed a first amended complaint against Officer
Shrum and the City of Sacramento for damages, alleging assault and battery and
intentional infliction of emotional distress. The complaint also alleged violation of
his rights under the Unruh Act (Civ. Code, §§ 51 et seq.) and violation of his civil
rights (42 U.S.C. § 1983) against Officer Shrum alone.
The complaint asserted that Officer Shrum without probable cause
wrongfully, negligently, intentionally, and with deliberate indifference to Yount’s
constitutional rights assaulted and battered Yount by shooting him in the buttock
without any justification; that Yount had been arrested, handcuffed, and hobbled at
the time and was not then attempting to interfere with the officers; that Yount at
no time posed any reasonable threat of violence to Officer Shrum or did anything
to justify the force used against him; and that the force used against him was
excessive, unnecessary, and unlawful. The cause of action under section 1983
alleged in particular that Yount was handcuffed and restrained and posed no threat
6

of violence to any person at the time he was shot, that he likewise was not
attempting to interfere with any officer, and that he did nothing that provided any
legal justification or excuse for Officer Shrum’s conduct.
Defendants’ answer included an allegation that success in the civil action
would necessarily imply the invalidity of Yount’s criminal conviction for violating
Penal Code section 148, subdivision (a)(1). (See Heck, supra, 512 U.S. 477.) The
parties agreed to bifurcate the Heck issue and try it before the court, without a
jury. By that point, Yount had elected to proceed on only two causes of action:
his civil rights claim under section 1983 and his claim for common law battery.
During the Heck hearing, the trial court heard from seven eyewitnesses and
took judicial notice of the file of the criminal proceeding. Following the hearing,
the court concluded that a finding of excessive force would be a collateral attack
on Yount’s misdemeanor conviction for resisting the officers, since the conviction
itself established that Officer Shrum had acted appropriately. The trial court found
that Yount’s own actions, which formed the basis of his criminal conviction, led to
Officer Shrum’s use of force; that Yount’s conviction encompassed resistance to
all four officers; and that, despite brief pauses in Yount’s resistance, the entire
episode was one continuous transaction. For those reasons, the trial court held that
Yount’s civil claims were barred by Heck.
The Court of Appeal reversed in a published opinion. The Court of Appeal
reasoned that, in general, “if the evidence discloses at least one violation of section
148 independent of and discrete from the officer’s alleged misconduct, Heck does
not apply,” inasmuch as that remaining act could be used to sustain the conviction.
The court concluded that Yount’s claims for damages did not impugn his
conviction for resisting the officers because, even if Yount prevailed in his civil
suit, his criminal conviction could be sustained by any one of Yount’s other acts of
resistance that was unrelated to the shooting.
7

DISCUSSION
Section 1983, as relevant here, provides that “[e]very person who, under
color of any statute, ordinance, regulation, custom, or usage, of any State . . .
subjects, or causes to be subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other proper proceeding for redress
. . . .”
The legal proposition at issue here is easily stated but somewhat less easy
to apply. It is this: “a state prisoner’s claim for damages is not cognizable under
42 U.S.C. § 1983 if ‘a judgment in favor of the plaintiff would necessarily imply
the invalidity of his conviction or sentence,’ unless the prisoner can demonstrate
that the conviction or sentence has previously been invalidated.” (Edwards v.
Balisok (1997) 520 U.S. 641, 643, quoting Heck, supra, 512 U.S. at p. 487.) The
parties agree that Yount’s conviction for resisting the officer in violation of Penal
Code section 148, subdivision (a)(1) remains intact. We must therefore decide
whether success on Yount’s section 1983 claim would necessarily imply the
invalidity of that criminal conviction.
A
Our discussion begins with Heck, supra, 512 U.S. 477, which first
established that a section 1983 claim calling into question the lawfulness of the
plaintiff’s conviction or confinement is not cognizable until the conviction or
confinement has been invalidated. (Heck, supra, at p. 483.) Heck analogized a
section 1983 claim in such circumstances to the common law cause of action for
malicious prosecution, which similarly includes the termination of the prior
criminal proceeding in favor of the accused as an element of the cause of action.
“This requirement ‘avoids parallel litigation over the issues of probable cause and
8

guilt . . . and it precludes the possibility of the claimant [sic] succeeding in the tort
action after having been convicted in the underlying criminal prosecution, in
contravention of a strong judicial policy against the creation of two conflicting
resolutions arising out of the same or identical transaction.’ [Citation.]
Furthermore, ‘to permit a convicted criminal defendant to proceed with a
malicious prosecution claim would permit a collateral attack on the conviction
through the vehicle of a civil suit.’ [Citation.] This Court has long expressed
similar concerns for finality and consistency and has generally declined to expand
opportunities for collateral attack [citations]. We think the hoary principle that
civil tort actions are not appropriate vehicles for challenging the validity of
outstanding criminal judgments applies to § 1983 damages actions that necessarily
require the plaintiff to prove the unlawfulness of his conviction or confinement,
just as it has always applied to actions for malicious prosecution.” (Heck, supra,
512 U.S. at pp. 484-486, fns. omitted.) Thus, “in order to recover damages for
allegedly unconstitutional 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 a determination, or called into question by a federal
court’s issuance of a writ of habeas corpus [citation].” (Id. at pp. 486-487, fn.
omitted.)
One example provided by the high court is especially pertinent to the
circumstances here: “A state defendant is convicted of and sentenced for the
crime of resisting arrest, defined as intentionally preventing a peace officer from
effecting a lawful arrest. . . . He then brings a § 1983 action against the arresting
officer, seeking damages for violation of his Fourth Amendment right to be free
from unreasonable seizures. In order to prevail in this § 1983 action, he would
9

have to negate an element of the offense of which he has been convicted.” (Heck,
supra, 512 U.S. at pp. 486-487, fn. 6.) Although (as the Court of Appeal correctly
pointed out) Penal Code section 148, subdivision (a)(1) is unlike the law of many
states in that it is not limited to a defendant’s conduct in resisting arrest but
extends to a defendant’s resistance of an officer in the discharge or attempted
discharge of any duty of his or her office, it similarly requires that the officer be
lawfully engaged in the performance of his or her duties. (People v. Gonzalez
(1990) 51 Cal.3d 1179, 1217; but see Smith v. City of Hemet (9th Cir. 2005) 394
F.3d 689, 695-696 (en banc) [mistakenly limiting § 148, subd. (a)(1) to resistance
in the course of an arrest].)
To determine “whether a judgment in favor of the plaintiff would
necessarily imply the invalidity of his conviction” (Heck, supra, 512 U.S. at p.
487), the Court of Appeal proposed a three-part analysis: “First, the court must
determine, using the substantial evidence test, what acts or omissions may have
formed the factual basis for the plaintiff’s obstruction conviction. Second, the
court must ascertain what alleged misconduct by the officer forms the factual basis
for the civil rights claim (e.g., excessive force). The final step is to consider the
relationship between the plaintiff’s acts of obstruction and the officer’s alleged
misconduct.” We find this framework useful (see VanGilder v. Baker (7th Cir.
2006) 435 F.3d 689, 691), although we do not agree fully with the Court of
Appeal’s application of it in this case.
Yount pleaded no contest to a single count of violating Penal Code section
148, subdivision (a)(1), a misdemeanor. The legal elements of that crime 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
10

Muhammed C. (2002) 95 Cal.App.4th 1325, 1329.) Yount made a deliberate
decision to waive a preliminary hearing and stipulated to a factual basis for the
plea without any explicit recitation of what those facts were. (Cf. In re Gross
(1983) 33 Cal.3d 561, 567-568 [finding no statutory or constitutional requirement
that a trial court satisfy itself of the existence of a factual basis for a plea to a
misdemeanor].)
Yount’s section 1983 claim, in turn, alleges that his Fourth Amendment
rights were violated during this same incident because Officer Shrum lacked
probable cause to arrest him and because Officer Shrum used excessive force. The
section 1983 claim alleges in particular that Officer Shrum assaulted and battered
Yount by shooting him in the buttock “without any justification,” that Yount was
not attempting to interfere with any duties of any police officer at the time he was
shot, that Yount at no time posed any reasonable threat of violence to Officer
Shrum or did anything else to justify the force used against him, and that the force
used was unnecessary, unlawful, grossly excessive, and deadly.
In analyzing the relationship between Yount’s criminal conviction and his
section 1983 claim, the Court of Appeal focused in particular on the fact that
Yount not only interfered with the performance of the officers’ duties at the time
he was shot, but he also “committed several independently identifiable prior acts
of resistance and obstruction during the encounter,” “any one of which could have
formed the factual basis for his plea.” “Had the only act that could have formed
the basis for Yount’s [Penal Code] section 148 conviction been his resistance to
the officers at the time he was shot,” the Court of Appeal continued, “his claim
would be barred by Heck. The uncontradicted evidence shows, however, that
Yount violated the statute a number of times before Officer Shrum pulled out his
firearm. The criminal court record recites only that Yount admitted there was a
‘factual basis’ for his plea. That record is silent as to which act or acts formed the
11

factual basis for Yount’s admission. Thus, Yount’s civil rights claim based on
excessive force would not necessarily impugn his criminal plea, and Heck is no
bar.”
To the extent the Court of Appeal believed that Heck was inapplicable here
merely because Yount had entered a no contest plea without a preliminary hearing
and without explicit identification of which of the multiple acts of resistance
formed the factual basis for his conviction, it was mistaken. In this case, the trial
court did not rely solely on the bare record of the criminal proceeding in analyzing
the scope of Yount’s criminal conviction, but considered also the testimony of the
seven eyewitnesses who testified at the bifurcated Heck hearing. (Cf. Smith v. City
of Hemet, supra, 394 F.3d at p. 698 [“Neither party . . . was able to identify the
facts underlying the plea”]; Sanford v. Motts (9th Cir. 2001) 258 F.3d 1117, 1119
[“Nothing in the record informs us what the factual basis was for Sanford’s
plea”].) The trial court’s implied finding that Yount’s conviction included his
resistance to the officers up until the time he was shot was amply supported by
substantial evidence.
Yount then contends that, whatever the scope of his criminal conviction,
Heck nonetheless “does not apply where the evidence discloses at least one
violation of [Penal Code, section] 148 independent of and discrete from an
officer’s alleged misconduct.” In Yount’s view (and in the view of the Court of
Appeal), Heck does not apply even if success on the section 1983 claim would be
inconsistent with a fact established by his conviction for resisting the officers, so
long as there remains, undisturbed by the civil rights action, at least one criminal
act sufficient to sustain the criminal conviction. Or, put another way, so long as
one act of resistance remains undisturbed to support the criminal conviction, it is
immaterial that success on the section 1983 claim might be inconsistent with other
facts that supported the criminal conviction. In Yount’s view (and in the view of
12

the Court of Appeal), the fact that the conviction could be sustained on this
narrower basis means that a judgment for the plaintiff on the section 1983 claim
would not necessarily imply the invalidity of the plaintiff’s conviction.
We find no support in Heck for the notion that the bar preventing collateral
attacks on a criminal conviction is inapplicable when the plaintiff seeks to
undermine only a part of his or her criminal conviction. (Cf. Heck, supra, 512
U.S. at p. 487 [§ 1983 action should be allowed to proceed only when “the
plaintiff’s action, even if successful, will not demonstrate the invalidity of any
outstanding criminal judgment against the plaintiff” (second italics added)].) As
the trial court found, Yount’s conviction established his culpability during the
entire episode with the four officers, and any civil rights claim that is inconsistent
with even a portion of that conviction is barred because it would necessarily imply
the invalidity of that part of the conviction. (See Smithart v. Towery (9th Cir.
1996) 79 F.3d 951, 952 [§ 1983 action must be dismissed when a criminal
conviction “arising out of the same facts stands and is fundamentally inconsistent
with the unlawful behavior for which section 1983 damages are sought”].)
Otherwise, a section 1983 plaintiff could routinely circumvent the Heck bar
through artful pleading—e.g., by filing suit against fewer than all of the potential
defendants or by defining the civil cause of action to encompass fewer than all of
the criminal acts of resistance (and the police response thereto) involved in the
incident. To permit a plaintiff to plead no contest and be found guilty to resisting
the officers in the performance of their duties and then to challenge the officers’
conduct encompassed by the plea (just as long as the challenge encompassed only
a portion of the plaintiff’s criminal conduct) would promote “ ‘parallel litigation
over the issues of probable cause and guilt,’ ” increase “ ‘the possibility of the
claimant [sic] succeeding in the tort action after having been convicted in the
underlying criminal prosecution,’ ” and authorize “ ‘a collateral attack on the
13

conviction through the vehicle of a civil suit’ ”—all “ ‘in contravention of a strong
judicial policy against the creation of two conflicting resolutions arising out of the
same or identical transaction.’ ” (Heck, supra, 512 U.S. at p. 484; accord, Okoro
v. Callaghan (7th Cir. 2003) 324 F.3d 488, 490 [plaintiff may not avoid the Heck
bar merely by asserting a “theoretical possibility” that the criminal conviction and
the civil action could coexist].)
The rule proposed by the Court of Appeal and embraced by Yount would
also have the perverse effect of rewarding those (like Yount) who engage in
multiple acts of resistance with the right to pursue a civil action against the
officers, since only those who commit a single act of resistance will find their civil
action barred by Heck. Under such a scheme, as defendants observe, “the more
egregious and more numerous the violations of Penal Code section 148
perpetrated by a criminal defendant, the better that defendant’s chances of
pursuing a Section 1983 action and avoiding the Heck bar.” Granting such
offenders the right to pursue a civil suit arising out of the same transaction on
which their criminal plea is based merely by the expedient of ensuring that the
civil action excludes at least one act of resistance (or at least one officer being
resisted) is inconsistent with the high court’s general reluctance “to expand
opportunities for collateral attack.” (Heck, supra, 512 U.S. at p. 485.) Had Yount
wanted to maximize his ability to challenge the officers’ conduct in a subsequent
civil action, he could have sought to identify and limit the basis for his plea to
violating Penal Code section 148, subdivision (a)(1). (See Truong v. Orange
County Sheriff’s Dept. (2005) 129 Cal.App.4th 1423, 1426.) There was, however,
no duty on the part of the court or the prosecution in the criminal proceeding to
identify or limit the factual basis for Yount’s plea to violating Penal Code section
148, subdivision (a)(1), a misdemeanor. (In re Gross, supra, 33 Cal.3d at p. 567.)
14

Indeed, Yount obtained substantial benefit from his general plea. By
declining to limit the scope of his no contest plea, Yount is protected against a new
prosecution for resisting these officers by the double jeopardy clause. (U.S.
Const., 5th Amend.; see State v. Newman (1992) 63 Wn.App. 841, 851 [822 P.2d
308, 313].) It would be anomalous to construe Yount’s criminal conviction
broadly for criminal law purposes so as to shield him from a new prosecution
arising from these events but then, once he had obtained the benefits of his no
contest plea, to turn around and construe the criminal conviction narrowly so as to
permit him to prosecute a section 1983 claim arising out of the same transaction.
We thus conclude that Yount’s criminal conviction encompasses his
admission that he was resisting the officers up until the time he was shot. The
Court of Appeal believed that Yount’s civil claim would be barred under such a
scenario, but the Court of Appeal was again mistaken, in part.
As stated above, our task is to analyze the relationship between Yount’s
resistance, as evidenced by his criminal conviction, and Officer Shrum’s alleged
misconduct, as set forth in the first amended complaint. The record of the Heck
hearing indicates that Yount was kicking, spitting, and refusing to cooperate with
the officers just prior to the shooting. Under those circumstances, Officer Shrum
was justified in responding with reasonable force. (Pen. Code, § 835a; People v.
Curtis (1969) 70 Cal.2d 347, 356-357.) Hence, to the extent that Yount’s section
1983 claim alleges that he offered no resistance, that he posed no reasonable threat
of obstruction to the officers, and that the officers had no justification to employ
any force against him at the time he was shot, the claim is inconsistent with his
conviction for resisting the officers and is barred under Heck. (Thore v. Howe (1st
Cir. 2006) 466 F.3d 173, 180 [claim that the plaintiff had not committed an
assault, and thus that the officer’s use of force in response was excessive, was
barred by plaintiff’s assault conviction]; Swiecicki v. Delgado (6th Cir. 2006) 463
15

F.3d 489, 494-495; see generally McCann v. Neilsen (7th Cir. 2006) 466 F.3d 619,
621 [“a plaintiff’s claim is Heck-barred despite its theoretical compatibility with
his underlying conviction if specific factual allegations in the complaint are
necessarily inconsistent with the validity of the conviction”].)
The record of the Heck hearing also demonstrates that Yount was
attempting to drive while intoxicated. Hence, to the extent that Yount’s section
1983 claim alleges that Officer Shrum “violated YOUNT’S rights to be free from
arrest and detention absent probable cause,” the claim is similarly inconsistent
with his conviction for resisting the officers in the lawful performance of their
duties and is barred under Heck. (Nuno v. County of San Bernardino (C.D.Cal.
1999) 58 F.Supp.2d 1127, 1134.)
However, to the extent Yount’s section 1983 claim alleges simply that
Officer Shrum’s use of deadly force was an unjustified and excessive response to
Yount’s resistance, the claim is not barred.1 As defendants have conceded, the
record at the Heck hearing did not support the use of deadly force against Yount,
nor did the criminal conviction in itself establish a justification for the use of
deadly force. (See Tennessee v. Garner (1985) 471 U.S. 1, 11-12; accord, Kortum
v. Alkire (1977) 69 Cal.App.3d 325, 333.) A claim alleging that Officer Shrum’s
use of deadly force was not a reasonable response to Yount’s criminal acts of
resistance does not “implicitly question the validity of [his] conviction” for
resisting the officers in this instance (Muhammad v. Close (2004) 540 U.S. 749,
751) and thus is not barred by Heck. (McCann v. Neilsen, supra, 466 F.3d at pp.
622-623; Gregory v. Oliver (N.D.Ill. 2002) 226 F.Supp.2d 943, 952 [“in some

1
Because the officer in this case used deadly force, we need consider only
whether Yount may proceed with his civil claims to the extent they challenge the
officer’s use of deadly force.
16



instances a Section 1983 claim does not contradict the events that resulted in a
plaintiff’s convictions—two obvious examples would be an officer’s unjustified
imposition of excessive force in an overreaction to an arrestee’s assault, or the
imposition of excessive force after the event that led to a resisting-arrest
conviction” (fn. omitted)]; accord, Sanford v. Motts, supra, 258 F.3d at p. 1120
[“if Motts used excessive force subsequent to the time Sanford interfered with his
duty, success in her section 1983 claim will not invalidate her conviction”];
Martinez v. City of Albuquerque (10th Cir. 1999) 184 F.3d 1123, 1127 [plaintiff’s
criminal resistance “might justify the officers’ use of reasonable force to effectuate
[his] arrest, but would not authorize the officers to employ excessive or
unreasonable force”].)
Defendants contend that the Heck bar should nonetheless apply because the
shooting was part of a continuous transaction arising from Yount’s resistance as
well as “a consequence flowing directly from Yount’s criminal conduct.” But our
analysis does take account of the fact that Yount’s resistance caused the officers to
respond with force of their own. As explained above, we find that Yount’s section
1983 claim is barred to the extent it alleges that Officer Shrum lacked justification
to arrest him or to respond with reasonable force to his resistance. The use of
deadly force in this situation, though, requires a separate analysis. “For example,
a defendant might resist a lawful arrest, to which the arresting officers might
respond with excessive force to subdue him. The subsequent use of excessive
force would not negate the lawfulness of the initial arrest attempt, or negate the
unlawfulness of the criminal defendant’s attempt to resist it. Though occurring in
one continuous chain of events, two isolated factual contexts would exist, the first
giving rise to criminal liability on the part of the criminal defendant, and the
second giving rise to civil liability on the part of the arresting officer.” (Jones v.
Marcum (S.D. Ohio 2002) 197 F.Supp.2d 991, 1005, fn. 9; accord, Powell v.
17

Scanlon (D.Conn. 2005) 390 F.Supp.2d 172, 178 [“although inmate’s conviction
for resisting arrest was a factor in determining the acceptable level of force, ‘it
does not constitute a per se determination that any amount of force that plaintiff
could prove is acceptable’ ”]; cf. Susag v. City of Lake Forest, supra, 94
Cal.App.4th at p. 1410 [applying the Heck bar where the plaintiff “alleged no
claims of excessive force that took place after he was finally subdued and placed
in the patrol car”].)
Defendants’ broad invocation of the Heck bar to eliminate Yount’s claims
in their entirety would also severely diminish the protections available to those
subject to arrest. “[I]t would imply that once a person resists law enforcement, he
has invited the police to inflict any reaction or retribution they choose, while
forfeiting the right to sue for damages. Put another way, police subduing a suspect
could use as much force as they wanted—and be shielded from accountability
under civil law—as long as the prosecutor could get the plaintiff convicted on a
charge of resisting.” (VanGilder v. Baker, supra, 435 F.3d at p. 692.) To the
extent Yount does not deny that he resisted the officers (or that the officers had the
right to respond with reasonable force), he poses no challenge to his conviction,
and, to that extent, his section 1983 claim for damages arising from Officer
Shrum’s accidental use of deadly force is not barred by Heck. (Gilbert v. Cook
(7th Cir. 2008) 512 F.3d 899, 901-902.)2

2
Although we hold that this portion of Yount’s section 1983 claim is not
Heck-barred, we have not been asked to decide (and do not decide here) whether
Yount may recover damages under section 1983 for Officer Shrum’s accidental
use of deadly force.
18



B
Yount relies heavily on Smith v. City of Hemet, supra, 394 F.3d 689, an en
banc decision of the Ninth Circuit that discussed the effect of Smith’s conviction
for resisting an officer in violation of Penal Code section 148, subdivision (a)(1)
on his section 1983 claim that the officers used excessive force when they
employed pepper spray and a police canine to effect his arrest. (Smith, supra, at
p. 694.) The summary judgment record there revealed that Smith had resisted the
officers when they arrived at his house to investigate a domestic disturbance and
continued to resist them while they attempted to place him under arrest. In
response, the officers sprayed him in the face with pepper spray and directed the
police canine to attack him. The dog bit Smith on his left and right shoulder, neck,
and buttocks, and the officers sprayed him with pepper spray at least four
additional times. (Id. at pp. 693-694.)
In reversing the trial court’s determination that Smith’s section 1983 claim
was barred under Heck, the Ninth Circuit reasoned that “if Smith pled guilty to
§ 148(a)(1) based on his behavior after the officers came onto the porch, during
the course of his arrest, his suit would be barred by Heck. [Citation.] In such a
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. [Citation.] [¶] Under Heck, Smith would be allowed
to bring a § 1983 action, however, if the use of excessive force occurred
subsequent to the conduct on which his conviction was based. Specifically, Smith
would be entitled to proceed below if his conviction was 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
19

his wife’s complaint. In such a 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, supra, 394 F.3d
at pp. 697-698.)
The possibility that this latter scenario was the basis for Smith’s guilty plea
is what led the Ninth Circuit to reverse the judgment in favor of the defendants—
and it is worthwhile to revisit the Ninth Circuit’s reasoning so as to demonstrate
that Yount’s reliance on the case is misplaced. The Ninth Circuit correctly
observed that a defendant entering a plea of guilty or no contest in California “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 . . . acts.” (Smith v. City of Hemet,
supra, 394 F.3d at p. 700, fn. 5.) In concluding that Smith’s claim was not barred
by Heck, the Ninth Circuit assumed that Smith had limited his plea to those acts
that obstructed the officers’ investigation (as opposed to the acts that obstructed
the arrest) based merely on the fact that it was “possible” Smith had so limited his
plea (ibid.) and on the parties’ failure to offer a transcript of the plea hearing or
otherwise to use “what transpired at the time Smith entered his plea” to rebut this
possibility. (Id. at p. 698.) Because of this possibility, the Ninth Circuit
concluded that Smith’s lawsuit “does not necessarily imply the invalidity of his
conviction and is therefore not barred by Heck.” (Id. at p. 699.)
We need not consider here whether Smith was correctly decided because
here, unlike in Smith, the trial court took judicial notice of the file of the criminal
proceeding, including the transcript of the plea hearing. That transcript refutes any
claim that Yount, at the time of his plea, admitted “having committed [only] a
20

specific act or acts of resistance, delay, or obstruction”; that he identified “the
particular acts of unlawfulness to which he [was] willing to plead”; or that he
denied “that he engaged in other specific acts.” (Smith v. City of Hemet, supra,
394 F.3d at p. 700, fn. 5.) Moreover, here, unlike in Smith, Yount’s acts of
resistance were part of one continuous transaction involving the officers’ efforts to
effect his arrest and cannot be segregated into an investigative phase and an
independent arrest phase. (Cf. id. at p. 698.) We therefore conclude that Smith
does not aid Yount here.
C
The parties do not separately address the effect of Yount’s criminal
conviction on his state law claim for battery. Heck, of course, is a rule of federal
law that applies only to federal causes of action that challenge the validity of a
state conviction. (Nuno v. County of San Bernardino, supra, 58 F.Supp.2d at p.
1130, fn. 3.) But we cannot think of a reason to distinguish between section 1983
and a state tort claim arising from the same alleged misconduct and, as stated
above, the parties offer none. Section 1983 “ ‘creates a species of tort liability’ ”
(Heck, supra, 512 U.S. at p. 483) and has been described as “ ‘the federal
counterpart of state battery or wrongful death actions.’ ” (Susag v. City of Lake
Forest, supra, 94 Cal.App.4th at p. 1413.) Indeed, Yount’s common law battery
cause of action, like his section 1983 claim, requires proof that Officer Shrum
used unreasonable force. (Edson v. City of Anaheim (1998) 63 Cal.App.4th 1269,
1273-1274.)
Moreover, this court has recently reiterated its concern about the use of
civil suits to collaterally attack criminal judgments in the context of a convicted
criminal defendant’s civil action against his or her attorney for legal malpractice.
(See Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1197.) In holding that
a criminal defendant must obtain exoneration by postconviction relief as a
21

prerequisite to obtaining relief for the legal malpractice that led to that conviction,
we recognized that our ruling would preclude recovery “even when ordinary
collateral estoppel principles otherwise are not controlling, for example because a
conviction was based upon a plea of guilty that would not be conclusive in a
subsequent civil action involving the same issues.” (Id. at p. 1204.) Our
justification for a bar of that scope included the promotion of judicial economy
and the “ ‘ “strong judicial policy” ’ ” recognized in Heck itself “ ‘ “against the
creation of two conflicting resolutions arising out of the same or identical
transaction.” ’ ” (Coscia, supra, 25 Cal.4th at p. 1204, quoting Heck, supra, 512
U.S. at p. 484.)
In light of the fact that Heck and California law express similar concerns
about judicial economy and the avoidance of conflicting resolutions, we conclude
that the analysis in the preceding sections applies equally to Yount’s common law
claim for battery. That is, to the extent Yount does not deny that he resisted the
officers (or that the officers had the right to respond with reasonable force), he
poses no challenge to his conviction, and, to that extent, his cause of action for
battery arising from Officer Shrum’s use of deadly force is not barred.
22

DISPOSITION
We affirm in part and reverse in part the judgment of the Court of Appeal
and remand for further proceedings consistent with this opinion.
BAXTER, J.
WE CONCUR:

GEORGE, C.J.
KENNARD, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.

23





CONCURRING OPINION BY WERDEGAR, J.

I concur in the judgment.
I agree with the majority that plaintiff Steven Yount may sue defendants
under 42 United States Code section 1983 (section 1983) and for battery based on
the claim that a police officer shot him while he was handcuffed and restrained.
On this point the majority reasons: “[T]o the extent Yount’s section 1983 claim
alleges simply that Officer Shrum’s use of deadly force was an unjustified and
excessive response to Yount’s resistance, the claim is not barred. As defendants
have conceded, the record at the Heck hearing [see Heck v. Humphrey (1994) 512
U.S. 477] did not support the use of deadly force against Yount, nor did the
criminal conviction in itself establish a justification for the use of deadly force.
[Citation.] A claim alleging that Officer Shrum’s use of deadly force was not a
reasonable response to Yount’s criminal acts of resistance does not ‘implicitly
question the validity of [his] conviction’ for resisting the officers in this instance
[citation] and thus is not barred by Heck.” (Maj. opn., ante, at p. 16 [fn. omitted];
see also id., at p. 22 [applying the same reasoning to plaintiff’s claim for battery].)
This reasoning suffices. The remainder of the majority’s opinion is
unnecessary to the decision and thus constitutes, in my view, obiter dictum of no
precedential value. The majority attempts to justify its dictum by purporting to
decide “that [plaintiff’s] claims are barred to the extent they allege that Officer
Shrum was not entitled to use force at all in this incident.” (Maj. opn., ante, at
1



p. 2.) But no such claim is before us. At the time of trial, plaintiff had elected to
proceed on two theories only: section 1983 and battery. Both claims, as alleged
in the first amended complaint, are based exclusively on the shooting. Plaintiff
names only Officer Shrum as a defendant in his claim under section 1983, and he
bases the claim on the allegation that Officer Shrum, “while acting under color of
law with the Sacramento Police Department, shot and seriously and permanently
injured” him. Plaintiff names both Officer Shrum and his employer, the City of
Sacramento, as defendants in his claim for battery. But the only battery alleged is
that plaintiff “was shot and seriously and permanently injured by defendant
Officer Shrum . . . .”
I wish particularly to note that the case offers no proper occasion for the
majority’s elaborate effort to distinguish and criticize the Ninth Circuit’s decision
in Smith v. City of Hemet (9th Cir. 2005) 394 F.3d 689 (en banc) (maj. opn., ante,
at pp. 19-21) or for the majority’s implicit suggestion that Smith may not have
been “correctly decided” (maj. opn., ante, at p. 20). This dictum, if followed,
could have the unfortunate effect of causing California state courts to apply Heck,
supra, 512 U.S. 477, a decision of the United States Supreme Court on a point of
federal law, differently than the federal courts of the Ninth Circuit, and thus may
encourage forum shopping and create conflicts that only the high court can finally
resolve.
WERDEGAR, J.
2

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Yount v. City of Sacramento
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 133 Cal.App.4th 1424
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S139762
Date Filed: May 19, 2008
__________________________________________________________________________________

Court:

Superior
County: Sacramento
Judge: Richard Kent Park

__________________________________________________________________________________

Attorneys for Appellant:

The Cochran Firm and Brian T. Dunn for Plaintiff and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Samuel L. Jackson and Eileen M. Teichert, City Attorneys, and Matthew D. Ruyak, Deputy City Attorney,
for Defendants and Respondents.

Mastagni, Holstedt, Amick, Miller, Johnsen & Uhrhammer and Christopher W. Miller for The Peace
Officers Research Association of California Legal Defense Fund as Amicus Curie on behalf of Defendants
and Respondents.

Meyers, Nave, Riback, Silver & Wilson and Alan M. Cohen for League of California Cities as Amicus
Curie on behalf of Defendants and Respondents.



Counsel who argued in Supreme Court (not intended for publication with opinion):

Brian T. Dunn
The Cochran Firm
4929 Wilshire Boulevard, Suite 1010
Los Angeles, CA 90010-3856
(323) 931-6200

Matthew D. Ruyak
Deputy City Attorney
915 I Street, Fourth Floor
Sacramento, CA 95814
(916) 808-5346


Petition for review after the Court of Appeal reversed the judgment in a civil action. This case presents the following issue: Must a defendant who entered a plea of no contest to a charge of obstructing police officers in the course of their duties (Pen. Code, section 148) and who had engaged in a continuous course of conduct involving multiple acts of obstruction, any one of which would have supported the conviction, have the conviction invalidated in order to bring a civil rights claim (42 U.S.C. section 1983) alleging the use of excessive force by the officers in the course of taking him into custody? (See Heck v. Humphrey (1994) 512 U.S. 477.)

Opinion Information
Date:Citation:Docket Number:Category:Status:
Mon, 05/19/200843 Cal. 4th 885, 183 P.3d 471, 76 Cal. Rptr. 3d 787S139762Review - Civil Appealclosed; remittitur issued

Parties
1Yount, Steven (Plaintiff and Appellant)
Represented by Brian Thomas Dunn
Law Office of Johnnie Cochran
4929 Wilshire Boulevard, Suite 1010
Los Angeles, CA

2City Of Sacramento (Defendant and Respondent)
Represented by Matthew David Ruyak
Office of the City Attorney of Sacramento
915 "I" Street, Fourth Floor
Sacramento, CA

3City Of Sacramento (Defendant and Respondent)
Represented by Eileen Monaghan Teichert
Office of the City Attorney of Sacramento
915 "I" Street, Fourth Floor
Sacramento, CA

4Shrum, Thomas (Defendant and Respondent)
Represented by Matthew David Ruyak
Office of the City Attorney of Sacramento
915 "I" Street, Fourth Floor
Sacramento, CA

5Peace Officers Research Association Of California (Amicus curiae)
Represented by Christopher Wayne Miller
Mastagni Holstedt & Amick
1912 "I" Street, Suite 102
Sacramento, CA

6League Of California Cities (Amicus curiae)
Represented by Alan Martin Cohen
Meyers Nave Riback Silver & Wilson
555 Twelfth Street, Suite 1500
Oakland, CA


Opinion Authors
OpinionJustice Marvin R. Baxter
ConcurJustice Kathryn M. Werdegar

Disposition
May 19 2008Opinion: Affirmed in part/reversed in part

Dockets
Dec 19 2005Petition for review filed
  City of Sacramento et al., respondents Mathew D. Ruyak, counsel
Dec 23 2005Received Court of Appeal record
  one doghouse
Jan 6 2006Request for depublication (petition for review pending)
  Respondent, City of Sacramento by counsel, Matthew D. Ruyak
Jan 20 20062nd record request
  for the balance of the record
Jan 24 2006Received additional record
  two doghouses
Feb 1 2006Letter sent to:
  Both counsel enclosing a copy of the grant order and the form for certification of interested entities and persons
Feb 1 2006Petition for review granted (civil case)
  Votes: George, C.J., Kennard, Baxter, Werdegar, Moreno, and Corrigan, JJ. Chin, J., was absent and did not participate.
Feb 7 2006Request for extension of time filed
  for an additional 60 days to file respondents (City of Sacramento et al) opening brief on the merits. (Filed in Sacramento)
Feb 9 2006Order filed
  The order filed on February 1, 2006, granting the petition for review is amended to read the title and party designation reflected above.
Feb 14 2006Certification of interested entities or persons filed
  Steven Yount, Appellant by Brian T. Dunn, counsel
Feb 16 2006Extension of time granted
  On application of respondents and good cause appearing, it is ordered that the time to serve and file respondents' opening brief on the merits is hereby extended to and including May 2, 2006.
May 1 2006Opening brief on the merits filed
  by Respondents City of Sacramento and Officer Thomas Shrum [ Filed in Sacramento ]
May 18 2006Request for extension of time filed
  to file answer brief/merits appellant Steven Yount
May 23 2006Extension of time granted
  To June 30, 2006 to file appellant's answer brief on the merits.
Jun 30 2006Answer brief on the merits filed
  Steven Yount, appellant Brian T. Dunn, counsel
Jul 20 2006Reply brief filed (case fully briefed)
  City of Sacramento and Officer Thomas Shrum, respondents [ Filed in Sacramento ]
Aug 18 2006Request for extension of time filed
  to and including September 21, 2006 to file the application and amicus curiae brief of League of California Cities [ in support of Respondent City of Sacramento ] (Hard copy received 8-18-2006)
Aug 18 2006Received application to file Amicus Curiae Brief
  Peace Officers Research Association of California Legal Defense fund in support of Respondent City of Sacramento.
Aug 22 2006Extension of time granted
  The request for an extension of time to file the application and amicus curiae brief of League of California Cities in support of Respondent City of Sacramento is hereby granted to and including September 21, 2006.
Aug 24 2006Permission to file amicus curiae brief granted
  The application of Peace Officers Research Association of California Legal Defense Fund for permission to file an amicus curiae brief in support of respondent is hereby granted. An anwer thereto may be served and filed by any party within twenty days of the filing of the brief.
Aug 24 2006Amicus curiae brief filed
  Peace Officers Research Association of California Legal Defense Fund in support of respondent.
Sep 13 2006Response to amicus curiae brief filed
  Ssteven Yount, Appellant to amicus brief of Peace Officers Research Association of California Legal Defense Fund.
Sep 20 2006Request for extension of time filed
  to October 5, 2006 to file Amicus Curiae Brief of the League of California Cities in support of Respondent City of Sacramento.
Sep 25 2006Extension of time granted
  On application of Amicus Curiae League of California Cities and good cause appearing, it is ordered that the time to serve and file their amicus curiae brief in support of Respondent City of Sacramento is hereby extended to and including October 5, 2006.
Sep 28 2006Received:
  Proof of service from Alan M. Cohen, counsel for Amicus League of California Cities
Oct 5 2006Received application to file Amicus Curiae Brief
  League of California Cities in support of respondent (City of Sacramento) by alan M. Cohen of Meyers, Nave, et al.
Oct 26 2006Permission to file amicus curiae brief granted
  The application of League of California Cities for permission to file an amicus curiae brief in support of Respondent City of Sacramento is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Oct 26 2006Amicus curiae brief filed
  League of California Cities in support of Respondent City of Sacramento
Nov 15 2006Response to amicus curiae brief filed
  by appellant Stven Yount to amicus brief of League of California Cities
Feb 6 2008Case ordered on calendar
  to be argued Wednesday, March 5, 2008, at 9:00 a.m., in San Francisco
Mar 5 2008Cause argued and submitted
 
May 16 2008Notice of forthcoming opinion posted
 
May 19 2008Opinion filed: Affirmed in part, reversed in part
  and remand for further proceedings consistent with this opinion. Majority Opinion by Baxter, J. ----- Joined by George, C. J., Kennard, Chin, Moreno and Corrigan, JJ. Concurring Opinion by Werdegar, J.
Jun 3 2008Rehearing petition filed
  City of Sacramento and Officer Thomas Shrum, defendants and respondents by Matthew D. Ruyak, Supervising Deputy City Attorney - Sacramento (Filed in Sacramento)
Jun 9 2008Time extended to consider modification or rehearing
  The time for granting or denying rehearing in the above-entitled case is hereby extended to and including August 15, 2008, or the date upon which rehearing is either granted or denied, whichever occurs first.
Jun 11 2008Answer to rehearing petition filed
  Appellant Steven Yount Attorney Brian T. Dunn
Jul 16 2008Rehearing denied
 
Jul 16 2008Remittitur issued (civil case)
 
Jul 23 2008Received:
  Acknowledgment of receipt for remittitur from Third Appellate District.
Aug 7 2008Returned record
  C046869 Yount v City of Sacramento -- three doghouses
Jan 12 2009Certiorari denied by U.S. Supreme Court
 

Briefs
May 1 2006Opening brief on the merits filed
 
Jun 30 2006Answer brief on the merits filed
 
Jul 20 2006Reply brief filed (case fully briefed)
 
Aug 24 2006Amicus curiae brief filed
 
Sep 13 2006Response to amicus curiae brief filed
 
Oct 26 2006Amicus curiae brief filed
 
Nov 15 2006Response to amicus curiae brief filed
 
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
Jun 15, 2011
Annotated by Vanessa del Valle

FACTS

Plaintiff Steven Yount left his home very drunk and drove to a 7-Eleven store to try to buy more beer. A private security guard called the police when he saw Yount in the parking lot of the 7-Eleven visibly drunk and heading towards his car. Officer Davis of the Sacramento Police Department arrived at the scene and stopped Yount as he attempted to drive out of the parking lot. Yount got out of his car and willfully walked part of the way to the patrol vehicle, but then became apprehensive and refused to get inside. Officer Davis was eventually able to maneuver Yount into the back seat, and once in the back seat, Yount proceeded to yell obscenities and racial slurs at Officer Davis. He also banged his head and kicked against the side and window of the patrol vehicle, refusing to stop.

Officer Davis, with the help of two private security guards, managed to pull Yount out of the patrol vehicle and handcuff him. Once back inside the car, Yount continued to bang his head and feet against the doors. Officer Hatfield, Officer Swafford, and Officer Shrum arrived on the scene to assist Officer Davis. The officers attempted to calm Yount down, but he continued to bang and shake the vehicle while yelling and cursing. The officers warned Yount that they would taser him if he did not cooperate, and Youngt taunted them and kicked his legs at Officer Shrum. Officer Swafford then tasered Yount in the back, which caused him to calm down for a few minutes, but then he became more violent. Yount yelled obscenities at the officers and kicked the car window so hard it shattered.

Yount continued to resist the officers as they pulled him out of the vehicle to tie up his legs. Yount fell on top of Officer Davis, kicked him close to his groin, and spat on him. Officer Davis eventually was able to get on top of Yount, and the other officers secured Yount’s ankles together. Despite having restraints on both his wrists and ankles, Yount continued to resist the officers. Believing that Yount posed a risk of injury to himself and the other officers, Officer Shrum decided to use his taser to calm Yount down. Instead of grabbing his taser, however, he mistakenly grabbed his pistol and shot Yount in the left buttock. Once the officers realized Young suffered a gunshot wound, they called for medical assistance. Two independent eyewitnesses confirmed that Yount had been resisting the officers up until the time he was shot.

On June 19, 2001, Yount pleaded no contest to DUI with three prior DUI convictions (Veh. Code, §§ 23550, 23626) and to the misdemeanor offense of resisting an officer (Penal Code, § 148, subdivision (a)(1)). Yount stipulated to the facts in count 1, and the court found a factual basis for the plea as to each count. He was placed on probation for five years and was ordered to serve 270 days in jail and pay fines.

On October 28, 2002, Yount filed a first amended complaint against Officer Shrum and the City of Sacramento for damages, alleging common law battery. He also alleged Officer Shrum violated his civil rights under 42 U.S.C. § 1983. Section 1983 provides, “[e]very person who, under color of any statute, ordinance, custom, or usage of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action, suit in equity, or other proper proceeding for redress.” Yount asserted that Officer Shrum without probable cause wrongfully, negligently, intentionally, and with deliberate indifference to his constitutional rights, assaulted and battered him by shooting him without any justification. He asserted that he did not pose any reasonable threat of violence to Officer Shrum and did not do anything to justify the force used against him; the force was excessive, unnecessary, and unlawful.

Defendants alleged that success in the civil action would necessarily imply the invalidity of Yount’s criminal conviction for violating Penal Code section 148, subdivision (a)(1), and therefore, under Heck v. Humphrey, 512 U.S. 477 (1994), the section 1983 claim must be dismissed as an improper collateral attack on his criminal conviction. They also alleged the battery claim must be dismissed under analogous state authority. Susan v. City of Lake Forest, 94 Cal.App.4th 1401, 1410-1413 (2002).

PROCEDURAL HISTORY

The trial court, during the Heck hearing, heard from seven eyewitnesses and took judicial notice of the file of the criminal proceeding. The court held that a finding of excessive force would be a collateral attack on Yount’s misdemeanor conviction for resisting the officers, since the conviction established that Officer Shrum had acted appropriately, and therefore Yount’s civil claims were barred by Heck.

The Court of Appeal reversed. It reasoned that if the evidence proved at least one violation of section 148 independent of the officer’s alleged misconduct, then Heck does not apply. The Court of Appeal disagreed with the trial court’s finding that Yount’s resistance was one continuous transaction, and held that even if Yount prevailed in his civil suit, his criminal conviction could be sustained by any one of his other acts of resistance that was unrelated to the shooting.

ISSUE

Are Yount’s section 1983 and common law battery claims barred under Heck because success of these civil claims would necessarily imply the invalidity of his criminal conviction?

HOLDING

No. To the extent that Yount’s section 1983 claim alleges that Officer Shrum violated his rights to be free from arrest and detention absent probable cause, and was not allowed to use force at all, the claim is inconsistent with his conviction for resisting the officers and is barred under Heck. However, to the extent that Yount’s section 1983 claim alleges simply that Officer Shrum’s use of deadly force was unjustified and excessive, the claim is not barred.

ANALYSIS

Main Opinion – Justice Baxter, with Justice George, Justice Kennard, Justice Chin, Justice Moreno, and Justice Corrigan concurring

A defendant’s “claim for damages is not cognizable under 42 U.S.C. § 1983 if ‘a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence,’ unless the prisoner can demonstrate that the conviction or sentence has previously been invalidated.” Edwards v. Balisok, 520 U.S. 641, 643 (1997), quoting Heck, 512 U.S. 477, 487 (1994). The parties both agree that Yount’s criminal conviction for resisting the officers remains intact.

The trial court rightly found that Yount’s criminal conviction included his resistance to the officers up until the time he was shot. The Court of Appeal’s interpretation that Heck does not apply where the evidence discloses at least one violation of section 148 independent of the officer’s alleged misconduct was incorrect. Any civil rights claim that is inconsistent with even a portion of the criminal conviction is barred because it would necessarily imply the invalidity of that part of the conviction. If the court were to find otherwise, a section 1983 plaintiff could circumvent the Heck bar through artful pleading. The Court of Appeal’s reasoning also would have the effect of rewarding people like Yount who engage in multiple acts of resistance with the right to pursue a civil action against the officers, since only those who commit a single act of resistance would find their civil action barred by Heck.

The portion of Yount’s section 1983 claim that alleges that he offered no resistance, that he posed no reasonable threat of obstruction to the officers, and that the officers had no justification to employ any force against him at the time he was shot, is inconsistent with his conviction for resisting the officers and is barred under Heck. In addition, the part of Yount’s section 1983 claim that alleges Officer Shrum violated his rights to be free from arrest and detention absent probable cause is also inconsistent with his conviction and barred under Heck.

However, the portion of Yount’s section 1983 claim that alleges Officer Shrum’s use of deadly force was an unjustified and excessive response to Yount’s resistance is not barred. The record at the Heck hearing supported the use of reasonable force, but it did not support the use of deadly force. Yount’s criminal conviction also did not justify the use of deadly force. Therefore, a claim alleging that Officer Shrum’s use of deadly force was not a reasonable response to Yount’s criminal acts of resistance does not implicitly question the validity of his conviction for resisting the officers and thus is not barred by Heck. If the court did apply the Heck bar against Yount’s claim of excessive force, that would mean that police subduing a suspect could use as much force as they wanted and they would be shielded from accountability under civil law as long as the plaintiff is convicted on a charge of resisting arrest.

The court held that the excessive force portion of Yount’s section 1983 claim is not Heck-barred, but it did not decide (because it did not have to) whether Yount may recover damages under section 1983 for Officer Shrum’s accidental use of deadly force.

The court applied the same reasoning to Yount’s common law battery claim as section 1983 has been described as the federal counterpart of state battery claims. So Yount’s common law battery claim also requires proof that Officer Shrum used unreasonable force.

Concurring Opinion – Judge Wedegar

Judge Wedegar agreed with the majority that Yount may sue defendants under section 1983 and for battery based on the claim that Officer Shrum used excessive force. Judge Wedegar thought the remainder of the majority’s opinion, though, was unnecessary to the decision.

RULING

The judgment of the Court of Appeal is affirmed in part and reversed in part, and the case is remanded for further proceedings consistent with this opinion.

RELEVANT AUTHORITIES AND CASES

42 U.S.C. § 1983
http://codes.lp.findlaw.com/uscode/42/21/I/1983

Cal. Veh. Code § 23550
http://dmv.ca.gov/pubs/vctop/d11_5/vc23550.htm

Cal. Veh. Code § 23626
http://www.1800duilaws.com/california-dui-attorney/CAvehiclecode/vc_2362...

Cal. Penal Code § 148a
http://dmv.ca.gov/pubs/vctop/appndxa/penalco/penco148.htm

Heck v. Humphrey, 512 U.S. 477 (1994)
http://www.law.cornell.edu/supct/html/93-6188.ZS.html

Susag v. City of Lake Forest, 94 Cal.App.4th 1401 (2002)
http://www.lawlink.com/research/CaseLevel3/78726

Edwards v. Balisok, 520 U.S. 641 (1997)
http://www.law.cornell.edu/supct/html/95-1352.ZS.html

People v. Gonzalez, 51 Cal.3d 1179 (1990)
http://law.justia.com/cases/california/cal3d/51/1179.html

VanGilder v. Baker, 435 F.3d 689 (7th Cir. 2006)
http://law.justia.com/cases/federal/appellate-courts/F3/435/689/641785/

In re Muhammed C., 95 Cal.App.4th 1325 (2002)
http://law.justia.com/cases/california/caapp4th/95/1325.html

Smithart v. Towery, 79 F.3d 951 (9th Cir. 1996)
http://scholar.google.com/scholar_case?case=5395675452594812394&hl=en&as...

Thore v. Howe, 466 F.3d 173 (1st Cir. 2006)
http://scholar.google.com/scholar_case?case=11495732667106350603&hl=en&a...

McCann v. Nielsen, 466 F.3d 619 (7th Cir. 2006)
http://vlex.com/vid/mccann-patrick-v-nielsen-ken-23866246

Muhammad v. Close, 540 U.S. 749 (2004)
http://scholar.google.com/scholar_case?case=479722077374285569&hl=en&as_...

Sanford v. Motts, 258 F.3d 1117 (9th Cir. 2001)
http://scholar.google.com/scholar_case?case=14573895629925079555&hl=en&a...

Nuno v. County of San Bernardino, 58 F.Supp.2d 1127 (C.D.Cal. 1999)
http://ca.findacase.com/research/wfrmDocViewer.aspx/xq/fac.19990728_0000...

Martinez v. City of Albuquerque, 184 F.3d 1123 (10th Cir. 1999)
http://scholar.google.com/scholar_case?case=10714915271165879855&hl=en&a...

Smith v. City of Hemet, 394 F.3d 689 (9th Cir. 2005)
http://scholar.google.com/scholar_case?case=15604786254383559953&hl=en&a...

Edson v. City of Anaheim, 63 Cal.App.4th 1269 (1998)
http://law.justia.com/cases/california/caapp4th/63/1269.html

TAGS

Resisting arrest, 42 U.S.C. § 1983, excessive force, Heck, taser, gun, battery, assault, drunk, DUI, collateral attack, Penal Code § 148

Annotated by: Vanessa del Valle