          United States Court of Appeals
                         For the First Circuit

No. 06-1627

                             CHARLES THORE,

                         Plaintiff, Appellant,

                                    v.

   JEFFREY HOWE; DANIEL RICHARDS; DAVID NAPOLITANO; MICHAEL J.
LYVER; PETER A. KYMALAINEN; LEROY M. JACKSON; PHILLIP J. KEARNS,
         JR.; JOHN M. KELLEY; MATTHEW DIBARA; GLEN FOSSA,

                         Defendants, Appellees.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

               [Hon. Nancy Gertner, U.S. District Judge]


                                  Before

                         Boudin, Chief Judge,
                        Lynch, Circuit Judge,
                and Schwarzer,* Senior District Judge.



     Paul L. Carlucci for plaintiff-appellant.
     Gregg J. Corbo, with whom Joseph L. Tehan, Jr. and Kopelman
and Paige, P.C. were on brief, for defendant-appellee Jeffrey Howe.
     Joseph P. Kittredge, with whom Law Offices of Timothy M. Burke
was on brief, for defendants-appellees Daniel Richards, David
Napolitano, and Michael J. Lyver.
     Michael J. Kerrigan, with whom Edward T. Hinchey and Sloane &
Walsh, LLP were on brief, for defendants-appellees Peter A.
Kymalainen, Leroy M. Jackson, Phillip J. Kearns, Jr., John M.
Kelley, Matthew Dibara, and Glenn Fossa.


     *
          Of    the   Northern   District   of   California,   sitting   by
designation.
October 27, 2006
            LYNCH, Circuit Judge.      This suit under 42 U.S.C. § 1983

asserting    excessive   force   and   conspiracy   claims   raises   two

interesting issues not directly addressed before by this circuit.

The first is whether the Supreme Court's decision in Heck v.

Humphrey, 512 U.S. 477, 486-87 (1994), bars the civil rights claim

asserting excessive force brought by plaintiff Thore, who earlier

pled guilty to state criminal charges, arising from the same event,

of assault with a dangerous weapon on police officers.        The second

issue is whether Thore is judicially estopped from asserting facts

inconsistent with the facts to which Thore agreed during the plea

colloquy.    Thore admits that if he is judicially estopped from

asserting facts inconsistent with the plea colloquy, then his

excessive force claim cannot succeed.

            On February 8, 2002, Charles Thore pled guilty in state

court to several charges, including three counts of assault and

battery with a dangerous weapon (to wit, a car) on three police

officers, one count of assault and battery, one count of operating

a motor vehicle under the influence of alcohol, one count of

operating after suspension, and one count of operating to endanger.

The charges stemmed from his drunken driving encounter with police

officers on October 17, 2001, during which Thore was shot in the

neck by Fitchburg police officer Jeffrey Howe. Six other Fitchburg

police officers and three Massachusetts state police detectives

also were involved.


                                   -2-
            During his plea colloquy, Thore, who was represented by

counsel, said that he agreed with an account of the facts stated by

the prosecution.     Thore knowingly and voluntarily pled guilty.   As

a result of his plea bargain, Thore received the benefit of a joint

sentencing recommendation of a four-year sentence of imprisonment,

which was accepted by the court.        He avoided a potential ten-to-

twelve-year sentence, and had the benefit of dismissal of other

charges.

            In August 2003, Thore brought an action in state superior

court under 42 U.S.C. § 1983 against the officers; the case was

removed to federal court.       His original complaint alleged that

Officer Howe had used excessive force in shooting him and had

engaged in assault and battery.      After discovery, he amended his

complaint in November 2004, adding claims that six Fitchburg police

officers,    three   Massachusetts   State   Police   detectives   (who

investigated Officer Howe's use of force), and Officer Howe had all

conspired to cover up the circumstances of the shooting and had

maliciously abused process.

            The district court entered summary judgment for all

defendants in a thoughtful opinion.          The court held that the

doctrine of judicial estoppel barred Thore from asserting facts

inconsistent with the facts to which he admitted during his plea

colloquy in the Worcester Superior Court.       As a result, the court

reasoned, Thore's § 1983 excessive force and state law assault and


                                  -3-
battery    claims    failed      to    overcome      Officer   Howe's    qualified

immunity.     The district court also held that Heck v. Humphrey

barred assertion of the § 1983 malicious abuse of process and

conspiracy claims against all defendants and that, in any event, no

claim was stated under § 1983 as to either malicious abuse of

process or conspiracy.        The court did not reach the Heck issue as

to the excessive force claim.

            Thore appeals, arguing that judicial estoppel should not

apply to bar him from asserting inconsistent facts because he now

has evidence that some of the facts asserted at the plea colloquy

are not true.       He also argues that Heck v. Humphrey does not bar

him from asserting any of his claims.               He concedes that if judicial

estoppel applies, then the district court was correct in entering

judgment for Officer Howe on the excessive force claim.                    He does

not appeal the dismissal of the abuse of process claim.

                                         I.

            Thore pled guilty to three counts of assault and battery

with a deadly weapon (a car), see Mass. Gen. Laws ch. 265 § 15A(b),

as well as other crimes.              Under Massachusetts law, assault and

battery may be proven using two alternate theories.                      Under the

first, an assault and battery is "the intentional and unjustified

use   of   force    upon   the    person       of   another,   however    slight."

Commonwealth v. Burno, 487 N.E. 2d 1366, 1368-69 (Mass. 1986)

(quoting Commonwealth v. McCan, 178 N.E. 633, 634 (Mass. 1931))


                                         -4-
(internal quotation marks omitted).             Under the second theory,

assault and battery is the "intentional commission of a wanton or

reckless   act    (something   more     than   gross   negligence)   causing

physical   or    bodily   injury   to   another."      Id.   at   1369.   In

Massachusetts, assault and battery by means of a dangerous weapon

"is a general intent crime, [and] there is no requirement that the

Commonwealth must prove the defendant had a specific intent to

injure the victim. To find the requisite intent, however, the jury

must find beyond a reasonable doubt that the touching did not

happen accidentally." Commonwealth v. Ford, 677 N.E. 2d 1149, 1152

(Mass. 1997) (citations omitted).

           We start with the facts the prosecution recited and to

which Thore agreed at his plea colloquy in state court:

           On October 17th, 2001, at approximately 7:20
           p.m., Sergeant Glen Fossa of the Fitchburg
           police department while off duty observed a
           blue Volkswag[e]n operating erratically on
           John     Fitch     Highway    in     Fitchburg,
           Massachusetts.    The John Fitch Highway is a
           public way in the city of Fitchburg. The blue
           Volkswag[e]n almost struck the passenger side
           of the vehicle occupied by Sergeant Fossa.
           Both vehicles stopped.     The operator of the
           blue    Volkswag[e]n,   Charles    Thore,   the
           defendant, started to get out of the vehicle
           he was operating and began yelling at Sergeant
           Fossa. Sergeant Fossa observed that Mr. Thore
           appeared to be having a confrontation with a
           female passenger in his vehicle. The female
           passenger was later identified as Jessilyn
           Chabot.     Mr. Thore got back in the blue
           Volkswag[e]n and began to drive away wildly,
           passing cars in the turn-only lanes of the
           John Fitch Highway. Sergeant Fossa reported


                                      -5-
the blue Volkswag[e]n to the Fitchburg police
department.

       Sergeant John Kell[e]y and Officer
Matthew Dibara responded to the John Fitch
Highway. Sergeant Fossa pointed out the blue
Volkswag[e]n to the responding Fitchburg
officers. Sergeant Fossa observed Mr. Thore
holding Miss Chabot in a headlock, and he
appeared to be hitting and/or struggling with
Miss Chabot.   Miss Chabot reported that Mr.
Thore was choking her and that he slapped her
in the face twice because she was breaking up
with him. Miss Chabot was pregnant with Mr.
Thore's child at the time.

       Officer Dibara approached the blue
Volkswag[e]n and instructed Mr. Thore to
please turn off the engine and step from the
vehicle.    Mr. Thore did not comply and
eventually placed the vehicle in reverse and
accelerated. Officer Dibara reached into an
open window and attempted to stop the blue
Volkswag[e]n out of concern for the safety of
Miss Chabot.    Officer Dibara held onto Mr.
Thore as he was dragged somewhat and was
forced to run at times to keep pace with the
vehicle.    Officer Dibara disengaged after
about 25 feet, fearing for his life. At times
throughout the incident the blue Volkswag[e]n
operated by Mr. Thore came into contact with
Officer Dibara.

       Mr. Thore attempted to flee through the
parking lot but was headed off by Sergeant
Kell[e]y and Fitchburg police officer Jeffrey
Howe, who were operating separate police
cruisers.   Mr. Thore began to strike both
cruisers operated by Sergeant Kell[e]y and
Officer Howe with the blue Volkswag[e]n.

       At one point Officer Dibara ordered Mr.
Thore to stop at gunpoint. Mr. Thore looked
at Officer Dibara and stated, "Fucking shoot
me." Officer Dibara re-holstered his weapon
and attempted to pull Mr. Thore from the
vehicle. Mr. Thore again accelerated, broke
free, and struck Officer Howe's cruiser on the

                     -6-
           driver's door, pushing Officer Howe and his
           cruiser into a tractor trailer truck and
           nearly striking Officer Dibara.        Officer
           Dibara heard Mr. Thore's vehicle revving as
           Mr. Thore was apparently attempting to move
           the blue Volkswag[e]n in an unknown direction.
           Fearing for his life, and that of Officer
           Dibara[], Officer Howe fired three shots from
           his firearm at this point. One round struck
           Mr. Thore in the neck.

This is a matter of record; there is no disagreement that Thore

agreed to these facts.

           Thore argues that the facts to which he admitted are not

true as to whether the officers were endangered or in fear for

their lives.   He argues he can prove this through the testimony of

a disinterested third-party witness, one Jon Laro, the truck driver

under whose truck Officer Howe's cruiser was pushed.              Laro, at

deposition in this case, gave a markedly different version of the

events that contradicted those (a) recited in the plea colloquy and

(b)   contained   in   the   two   statements   the   police   recorded   on

interviewing Laro, which Laro signed shortly after the event (and

which fully supported the facts recited at the colloquy).                 At

deposition, Laro said that Thore's car, a blue Volkswagen, had not

struck the police cars, but that the police cars had repeatedly

struck Thore's car and had him boxed in so his car could not move.

The witness stated the officers were never placed in danger by

Thore and that Officer Howe had no reason to shoot Thore:

           They really had him stopped, pinned down when
           they had him up against that building to be
           honest with you. To me, I don't know, maybe

                                     -7-
          if I was a police officer I think I would have
          just shot the guy's tires.     He ain't going
          nowhere, you know, I don't know.     I didn't
          really feel there was a need to shoot the kid
          let's put it that way. I know the kid wasn't
          right but they weren't right and two wrongs
          don't make a right and that's what happened
          here.

          By contrast, the typed notes of Detective Kymalainen's

interview with Laro on October 17, 2001 present a different picture

of what Laro saw:

          Q.   [Police] After the car hit cruiser five
          what did it do?
          A. [Laro] The car's engine revved and he went
          flying in reverse away from the police car, he
          turned hard right in reverse and backed into a
          parked car about fifteen feet maybe. He was
          out of control backing up, I thought for sure
          he was going to hit one of the cops that was
          near his car.
          Q. Where were the police officers?
          A. I think there were two officers, there may
          have been more, but I remember they ran past
          my tractor towards the blue car after it
          struck cruiser five. There were a couple of
          seconds were [sic] the car was stopped after
          it hit car five. The cops ran to the car, I
          saw them with their guns out, when they got
          near the car they pointed their guns at him
          and yelled at the guy to get out of the car.
          Those officers yelled at the man to get out,
          they were very loud.     I heard the officer
          shout several times to get out of the car.
          The guy didn't get out, he just jammed it in
          reverse and went backwards, it was lucky
          nobody didn't get hit because he almost ran
          them over.
          . . .
          Q. Prior to the shots what did you think the
          operator of the blue car was going to do after
          it struck the parked car?
          A. It was going to try and get away again,
          there was nothing stopping this guy, he was


                               -8-
              like a lunatic. I really thought the guy was
              going to run those officers over.

As noted, Laro signed the statement on or about October 17, 2001.

This   typed    interview   is    entirely     consistent   with    handwritten

interview notes, which Laro also signed and initialed.                        Laro

testified he does recall being interviewed, but denied saying a

number of things that are recorded in the notes.             Thore maintains

the police forged the notes as part of a cover up.

              Thore argues that until Laro's deposition, he had simply

relied on the reports the police had given him as to Laro's account

of the events and that this induced him to plead guilty.                   He says

that had he known Laro's true account, he would not have pled

guilty or admitted to certain facts.           He points out that he has no

memory   of    events   after    being    shot.    He   argues     there    was   a

conspiracy by the Fitchburg and state police to misstate the

evidence of the third-party witness, and thus create, after the

fact, a justification for the shooting.

              Thore also argues he should be permitted to prove that

the police knew that he was not armed (because his girlfriend told

them), that his car was boxed in by the cruisers and so his own car

could not move or harm the officers, and that the officers were

never endangered.       Based on those facts, he argues that under the

standards of Brosseau v. Haugen, 543 U.S. 194 (2004), and Graham v.

Connor, 490 U.S. 386 (1989), it was objectively unreasonable for an

officer to shoot him.

                                         -9-
                                     II.

           The    order   appealed   from   grants   summary   judgment   to

defendants.      Our review of entry of summary judgment is de novo.

See Nelson v. Kline, 242 F.3d 33, 34 (1st Cir. 2001).             We note,

however, that "summary judgment" is a bit of a misnomer here.             At

issue are several matters which are committed to the district

court, not a jury, in the first instance.        Whether the case states

a viable § 1983 claim in the first place and whether the case

states a viable § 1983 claim in light of Heck are issues of law for

the court.       Similarly, whether to apply the judicial estoppel

doctrine is also an issue for the court, not the jury, to decide.

See New Hampshire v. Maine, 532 U.S. 742, 750 (2001) ("[J]udicial

estoppel 'is an equitable doctrine invoked by a court at its

discretion.'"     (quoting Russell v. Rolfs, 893 F.2d 1033, 1037 (9th

Cir. 1990))).     As to the application of these doctrines, there is

no dispute that if plaintiff fails to state a claim, if Heck          bars

the claim, or if judicial estoppel binds Thore to the facts stated

at the plea colloquy, then the case must be dismissed.

A.   The Conspiracy Claim

           The district court correctly dismissed the conspiracy

count for failure to state a claim.         Thore alleged in his amended

complaint that Officer Howe, six other Fitchburg police officers,

and three Massachusetts state police detectives conspired against

him "to justify the illegal shooting . . . by Officer Jeffrey


                                     -10-
Howe," thereby violating his "constitutional right to be free from

the use of a conspiracy by persons acting under color of law."

However, there is no such constitutional right, nor is there any

federal law guaranteeing freedom from conspiracy.

            It is important to note that "[w]hile conspiracies may be

actionable under section 1983, it is necessary that there have

been,   besides    the   agreement   [among    conspirators],    an   actual

deprivation of a right secured by the Constitution and laws."

Landrigan v. City of Warwick, 628 F.2d 736, 742 (1st Cir. 1980);

see also Santiago v. Fenton, 891 F.2d 373, 389 (1st Cir. 1989);

Earle v. Benoit, 850 F.2d 836, 844 (1st Cir. 1988).               Thus, an

allegation    of   conspiracy   to    deprive    someone   of,   say,   his

constitutional right to due process states a claim under § 1983,

cf. Slotnick v. Staviskey, 560 F.2d 31, 34 (1st Cir. 1977), but an

allegation of conspiracy to justify an illegal shooting does not.

            Thore failed to identify in his amended complaint a

federally protected right of which he was deprived by the alleged

conspiracy. He acknowledges as much on appeal by now attempting to

cast his claim as a conspiracy to deprive him of his § 1983 right

of action for excessive force.              In Landrigan, we "assume[d],

without deciding, that [a claim alleging deprivation of a § 1983

right of action], sufficiently advanced, could have amounted to an

actionable deprivation of federally protected rights." 628 F.2d at

742.    Here, however, Thore's claim is not "sufficiently advanced"


                                     -11-
to merit our consideration of this issue.              Thore has conceded that

his "claim is not precisely pled"; we further find that, contrary

to plaintiff's contention, the gravamen of his claim does not make

out an alleged deprivation of his § 1983 right of action.                     Thore

merely asserted that the defendants, under color of law, conspired

to justify the shooting, and that this violated his constitutional

rights.       Under   these      circumstances,      we   decline    to    "rewrite

[Thore's]     complaint     by    inserting    legal      claims   not    mentioned

therein."     Pujol v. Shearson/Am. Express, Inc., 829 F.2d 1201,

1205-06     (1st   Cir.   1987)     (rejecting      plaintiffs'     invitation   to

construe their complaint as containing elements of certain RICO

violations when it did not state so directly).

B.   The Excessive Force Claim

             Defendant Howe argues that Heck v. Humphrey bars Thore's

§ 1983 claim for excessive force.            He also argues that the doctrine

of judicial estoppel justifies the district court's entry of

summary judgment in his favor.

1.   The Heck v. Humphrey Rule

             In Heck v. Humphrey, the Supreme Court held that where a

§ 1983 suit for damages would "necessarily imply" the invalidity of

an inmate's conviction, or "necessarily imply" the invalidity of

the length of any inmate's sentence, such a claim is not cognizable

under   §   1983   unless     and    until    the   inmate   obtains      favorable

resolution of a challenge to his conviction.                  Heck, 512 U.S. at


                                       -12-
487.    As    a    result,     the     district    court    must   consider    the

relationship between the § 1983 claim and the conviction, including

asking whether the plaintiff could prevail only by "negat[ing] an

element of the offense of which he [was] convicted."                  Id. at 486

n.6.   Only       if   a   "judgment    in   favor   of    the   plaintiff    would

necessarily imply the invalidity of the conviction or sentence"

does the court go on to ask whether that conviction or sentence has

in fact been invalidated.         Id. at 487.

          Thore argues that his claim does not necessarily imply

the invalidity of his conviction.              The Supreme Court has, in many

civil rights actions, including in Heck, held that a § 1983 claim

is stated where there is no necessary implication of the invalidity

of the conviction.         See id. at 487 n.7; see also Hill v. McDonough,

126 S. Ct. 2096, 2100 (2006); Wilkinson v. Dotson, 544 U.S. 74, 82

(2005); Nelson v. Campbell, 541 U.S. 637, 643 (2004); Muhammad v.

Close, 540 U.S. 749, 753, 755 (2004).

          Similarly, in Figueroa v. Rivera, 147 F.3d 77 (1st Cir.

1998), this court held that Heck did not bar a prisoner's § 1983

claim arising from alleged indifference to an inmate's medical

needs, but did bar a § 1983 claim for wrongful conviction and

imprisonment.      Id. at 82.     Notably, Figueroa also held that there

are no equitable exceptions to the Heck rule.                Id. at 80-81.

          A § 1983 excessive force claim brought against a police

officer that arises out of the officer's use of force during an


                                        -13-
arrest does not necessarily call into question the validity of an

underlying state conviction and so is not barred by Heck.                   See,

e.g., VanGilder v. Baker, 435 F.3d 689, 692 (7th Cir. 2006).

             Even the fact that defendant was convicted of assault on

a   police   officer   does   not,   under   Heck,   as   a   matter   of    law

necessarily bar a § 1983 claim of excessive force.            See Smithart v.

Towery, 79 F.3d 951, 952-53 (9th Cir. 1996); see also Ballard v.

Burton, 444 F.3d 391, 399-400 (5th Cir. 2006) (holding that a state

conviction for simple assault did not necessarily imply that the

defendant did not use excessive force).

             In this case Thore asserts two theories.           The first is

that he was not guilty of assault at all, and so Officer Howe's use

of force was excessive.       That theory is plainly barred by Heck.

             The more modest second theory is that his excessive force

claim need not impugn his convictions for assault and battery with

a dangerous weapon in order to establish that Officer Howe used

excessive force.       Thore says that even if his car had previously

hit the cruisers and brushed Officer Dibara's body, by the time of

the shooting, Thore was stationary in a car, boxed in with nowhere

to go, and posed no threat to the officers, who had been told that

he had no gun.

             Just as it is true that a § 1983 excessive force claim

after an assault conviction is not necessarily barred by Heck, it

is also true that it is not necessarily free from Heck.                     The


                                     -14-
excessive force claim and the conviction may be so interrelated

factually as to bar the § 1983 claim.      See, e.g., Cunningham v.

Gates, 312 F.3d 1148, 1154-55 (9th Cir. 2002).

            Officer Howe argues, relying on Cunningham, that this is

such a case: that Thore's third conviction for assault and battery

with a dangerous weapon was based on his refusal to obey commands

to get out of his car, and on his gunning his engine to start to

get away.    In doing so, he endangered the two officers:   Officer

Dibara on foot and Officer Howe in his cruiser.      We cannot tell

from the record before us whether this is so.

            While we conclude that Heck does not automatically bar

consideration of an excessive force claim by an individual who has

been convicted of assault, the record before us does not permit a

determination of the requisite relatedness.    Accordingly, we move

on to consider whether Thore is barred by judicial estoppel from

denying the facts he admitted in the plea colloquy.

2.   Judicial Estoppel

            We provide some background on the judicial estoppel

doctrine.    Before the Supreme Court addressed the use of judicial

estoppel doctrine in federal courts, this court had permitted

invocation of the doctrine.    See, e.g., Patriot Cinemas, Inc. v.

Gen. Cinema Corp., 834 F.2d 208, 215 (1st Cir. 1987) (binding party

to its prior representation that it would not pursue a claim).




                                -15-
            In New Hampshire v. Maine, the Supreme Court held that

judicial estoppel could be utilized in the federal courts.                   532

U.S. at 756.       The court defined judicial estoppel as a doctrine

which "generally prevents a party from prevailing in one phase of

a case on an argument and then relying on a contradictory argument

to prevail in another phase."            New Hampshire, 532 U.S. at 749

(quoting    Pegram    v.   Herdrich,    530   U.S.   211,    227   n.8   (2000))

(internal quotation marks omitted). Unlike the doctrine of issue

preclusion, judicial estoppel does not require that the issue have

been actually litigated in the prior proceeding. Id. at 748-49; 18

Moore's Federal Practice § 134.30, at 134-69 (3d ed. 2005).

            In New Hampshire, the Court recognized that, although New

Hampshire    was     equitably   barred       from   asserting     a     position

(concerning a river boundary) contrary to a position it had taken

in earlier litigation which had culminated in a consent decree,

judicial estoppel might be inappropriate when a party's prior

position was based on inadvertence or mistake.              New Hampshire, 532

U.S. at 753.       But the Court rejected New Hampshire's "mistake"

argument that it had failed to do searching historic research

earlier, and that if New Hampshire had known then what it knew now,

it would not have entered into the consent decree.              Id. at 753-54.

The Court noted that New Hampshire had had every incentive to do

that research earlier.       Id. at 754.      The Court also noted that the

state's inconsistent position would give New Hampshire an advantage


                                       -16-
at Maine's expense.    Id. at 755.     Furthermore, it is clear that New

Hampshire's    inconsistent     position       presented   the    risk   of

inconsistent outcomes in the Supreme Court.          The Court had, in the

earlier litigation, determined for itself that New Hampshire's

earlier position was consistent with the evidence, id. at 753-54,

and had relied on that position in approving the earlier consent

decree, id. at 752.

           The contours of the judicial estoppel doctrine are not

sharply defined, and there is no mechanical test for determining

its applicability.     See id. at 750-51.        New Hampshire recognized

that the purpose of the doctrine is to protect the integrity of the

judicial process.      Id. at 750.          The Court identified several

factors which inform the decision whether to apply the doctrine,

but also stressed these were neither "inflexible prerequisites" or

an "exhaustive formula."     Id. at 751.      The first factor is whether

the party's later position is clearly inconsistent with its earlier

position (that inconsistency is conceded in this case). The second

is whether the party has succeeded in persuading a court to accept

the party's earlier position, so that judicial acceptance of an

inconsistent position in a later proceeding would create the

perception of inconsistent court determinations, suggesting that

either   the   first   or   second    court    was   misled.     The   third

consideration is whether an unfair advantage or detriment would be

created.   See id. at 750-51.


                                     -17-
            This       court   construed     the    New   Hampshire      decision    in

Alternative System Concepts, Inc. v. Synopsys, Inc., 374 F.3d 23

(1st Cir. 2004), and held that generally, judicial estoppel would

not attach1 unless:

            (1)         the estopping position and the estopped
                        position [are] directly inconsistent;
                        and
            (2)         the responsible party . . . succeeded
                        in persuading a court to have accepted
                        its prior position.

Id.   at   33.     This       court   also   rejected     as   a     prerequisite    to

application       of    the    doctrine      that   the    party      asserting     the

inconsistent position be shown to have benefitted from the court's

acceptance of the party's initial position.2                   Id.


      1
          The parties have not briefed the question of whether
federal or state law on judicial estoppel should apply when the
underlying case as to which estoppel is sought was a state case,
plaintiff then pursued his civil rights action in state court, and
the action was then removed to federal court. We noted this issue
in Alternative System Concepts, 374 F.3d at 32, but did not resolve
it as state and federal law were materially the same. The parties
have assumed federal law applies, and so shall we. See Patriot
Cinemas, 834 F.2d at 215; see also Lowery v. Stovall, 92 F.3d 219,
223 n.3 (4th Cir. 1996) (holding judicial estoppel is matter of
federal law).

          We note that one commentator has questioned why, if state
law would not judicially estop a second action in state court (and
we do not know here what Massachusetts law requires), a federal
court has an interest in applying the doctrine to its own
proceedings. See 18B Wright, Miller & Cooper, Federal Practice &
Procedure § 4477, at 624 n.122 (2d ed. 2002).
      2
       Other circuits have articulated other criteria. See, e.g.,
Carrasca v. Pomeroy, 313 F.3d 828, 835 (3d Cir. 2002) (holding that
"judicial estoppel can be imposed only if: '(1) the party to be
estopped is asserting a position that is irreconcilably
inconsistent with one he or she asserted in a prior proceeding; (2)

                                          -18-
           This case involves the particular branch of the doctrine

that prohibits a party from asserting historic facts (as opposed to

legal theories) that are inconsistent with historic facts the party

has   agreed   to   in   a   prior   court   proceeding.3      Of   particular

significance is that the prior proceeding was a criminal proceeding

and the facts were not found by a court or jury, but were agreed to

as part of a plea bargain.       We note that although judicial estoppel

does not usually apply to non-judicially approved settlements, cf.

In re Bankvest Capital Corp., 375 F.3d 51, 61 (1st Cir. 2004), plea

agreements are certainly reviewed by a court.

           As to our standard of review, the question before us is

partially one of law, which we review de novo.              See United States

v. Leja, 448 F.3d 86, 92 (1st Cir. 2006) ("The district court's

resolution of legal questions . . . is reviewed de novo.");

Montrose Med. Group Participating Sav. Plan v. Bulger, 243 F.3d

773, 780 (3rd Cir. 2001) (de novo review of questions of law about

judicial estoppel).      The standard of review is also partially one

of application of law to facts and exercise of judgment by the


the party changed his or her position in bad faith, i.e., in a
culpable manner threatening to the court's authority or integrity;
and (3) the use of judicial estoppel is tailored to address the
affront to the court's authority or integrity'" (quoting Montrose
Med. Group Participating Sav. Plan v. Bulger, 243 F.3d 773, 777-78
(3d Cir. 2001))).
      3
          Different and very complicated issues arise when judicial
estoppel is purported to apply to pure issues of law. See Note,
Judicial Estoppel and Inconsistent Positions of Law Applied to Fact
and Pure Law, 89 Cornell L. Rev. 191 (2003).

                                      -19-
district    court,    which    we     review   for     abuse    of    discretion.

Alternative Sys. Concepts, 374 F.3d at 30-31 (holding that "the

appropriate standard for reviewing a trial court's application of

the doctrine of judicial estoppel" is abuse of discretion (emphasis

added)).

a.    Guilty Pleas and Judicial Estoppel

            As for the question of law, the defendants argue for a

rule that admissions to facts at an earlier guilty plea colloquy by

a    criminal   defendant    should    generally     bind    that    person    as    a

plaintiff in subsequent civil rights actions.                We reject any such

per se rule.      There is reason for caution.

            The   seminal     case,   relied   on     by    defendants   for    the

proposition that judicial estoppel should, as a rule, apply to

facts admitted during guilty pleas, is Lowery v. Stovall, 92 F.3d

219 (4th Cir. 1996).        See, e.g., Johnson v. Linden City Corp., 405

F.3d 1065, 1069-70 (10th Cir. 2005) (relying on Lowery).                            In

Lowery, a civil plaintiff who had pled guilty to maliciously

causing bodily injury to a police officer with intent to kill sued

the police for excessive use of force.               92 F.3d at 221.      In oft-

quoted language, the Lowery court said:

            Particularly galling is the situation where a
            criminal convicted on his own guilty plea
            seeks as a plaintiff in a subsequent civil
            action to claim redress based on a repudiation
            of the confession. The effrontery or, as some
            might say it, chutzpah, is too much to take.
            There certainly should be an estoppel in such
            a case.

                                       -20-
92 F.3d at 225 (quoting Hazard, Revisiting the Second Restatement

of Judgments: Issue Preclusion and Related Problems, 66 Cornell L.

Rev. 564, 578 (1981)).

              This language could be taken to mean that any defendant

who pleads guilty and in doing so admits to certain facts is thus

playing "fast and loose" if he takes an inconsistent position

later, and so he should be judicially estopped.               That is not our

view.      If "chutzpah" alone justified judicial estoppel, a great

many claims would be estopped.

              Courts, whether on appeal, motion for new trial, or

petition for post-conviction or collateral relief, commonly address

contentions that a defendant should not be bound by facts stated in

a   plea    agreement.       That   being    so,    the   mere   assertion   of

inconsistent facts from those admitted in a plea does not strike us

as inherently impugning the integrity of the judicial process.

Judicial estoppel, for example, is not applicable to bar a criminal

defendant from later asserting a claim based on innocence either on

direct appeal or on habeas corpus, even when such a claim rests on

facts that contradict the criminal defendant's in-court and sworn

representations.       See Morris v. California, 966 F.2d 448, 453-54

(9th Cir. 1991), cert. denied, 506 U.S. 831 (1992).

              At least two other concerns arise in this setting with

respect to whether there is any impugning of judicial integrity.

The   first    is   that   guilty   pleas    do   not   necessarily   establish

                                      -21-
absolute historic facts; what is stated in a plea arrangement is an

agreed-upon   version     of   the     facts    that,    while   it   avoids

misrepresentation, is sufficient to support the entry of the plea.

It is not uncommon for the statement of those facts to be shaped by

bargaining between the parties.        For example, in United States v.

Yeje-Cabrera, 430 F.3d 1 (1st Cir. 2005), this court discussed

extensively the issue of fact bargaining in guilty pleas; we

described fact bargaining as an inevitable consequence of the

process of plea bargaining.     Id. at 27-28.        Plea bargains benefit

both the prosecution and the defense: the defendant is motivated to

bargain to get lenient treatment, and the prosecution gains from

bargains by saving resources and achieving efficient outcomes.

Indeed, it may be the later civil rights plaintiff who seeks to

apply judicial estoppel against the prosecution for statements

agreed to in plea agreements.        Cf. United States v. Levasseur, 846

F.2d 786, 790-95 (1st Cir. 1986) (reversing district court's

application of judicial estoppel to bar government from alleging

certain crimes as RICO violations); cf. also United States v.

Christian, 342 F.3d 744, 748 (7th Cir. 2003) (rejecting judicial

estoppel of government); Young v. Dept. of Justice, 882 F.2d 633,

639-40 (2d Cir. 1989) (considering whether judicial estoppel should

apply   against   the   government,    albeit   in   a   non-plea-agreement

scenario).




                                     -22-
              Secondly, the question of judicial "acceptance" of a

guilty plea may turn on the particulars of a given case.                  All facts

recited during the plea colloquy are not necessarily "accepted" by

a judge.      Mass. R. Crim. P. 12(c)(5)(A), for example, precludes a

judge from accepting a plea of guilty "unless [he] is satisfied

that there is a factual basis for the charge."                 Significantly, the

rule   also    provides    that     "[t]he    failure     of   the   defendant    to

acknowledge all of the elements of the factual basis shall not

preclude a judge from accepting a guilty plea."                 The federal rule

generally is that the facts recited "may prove more than what is

charged, but not less."         Christian, 342 F.3d at 748 (citing United

States v. Martin, 287 F.3d 609, 621 (7th Cir. 2002)).                     Here, for

example, Thore argues that the plea colloquy did not need to recite

that officer Dibara was in fear for his life when he shot, in order

to establish that Thore was guilty of assault and battery with a

dangerous weapon, by automobile.             Indeed, viewing the state crime

as a general intent crime, all that was needed was that the

officers      were   touched   by    his   car   and    the    touching    was   not

accidental, not that Thore intended to injure the officers.

              The    Supreme   Court   has,    in   New   Hampshire,      tied   the

judicial-acceptance factor to the risk of inconsistent decisions

from two courts.        532 U.S. at 750-51.         In this context -- guilty

pleas followed by § 1983 actions -- the Heck doctrine will cause




                                       -23-
dismissal of any § 1983 case which could undermine the conviction.4

But to say his claim may survive Heck is not to say that judicial

estoppel can play no role as to facts admitted at a plea colloquy.

Judicial estoppel is, after all, a doctrine of equity.

           Another rationale -- avoidance of misleading the court --

has been articulated for judicial estoppel.     In our view, it is

wrong to think that either the defendant or the government has

necessarily misled or made an intentional misrepresentation5 to the

court that accepted the plea when a party tries to assert a

partially inconsistent version of the facts in a later civil rights

action.6   And it would be equally wrong to use the judicial

estoppel doctrine automatically to foreclose genuine efforts to

demonstrate the truth.




     4
          But see Johnson, 405 F.3d at 1069-70 (analyzing issue of
inconsistency between state conviction and federal civil rights
case under judicial estoppel, not Heck).
     5
          Of course, no relief from judicial estoppel usually is
available to a party who has undermined the integrity of the
judicial system by intentionally misrepresenting historic facts.
Thore argues the converse: that the standard should be that he
should not be held to his earlier statement until it is shown that
he intentionally misled the earlier court, and there is no
intentional misrepresentation at issue here.           But, under
Alternative System Concepts, a party is not automatically excused
from judicial estoppel if the earlier statement was made in good
faith. 374 F.3d at 35.
     6
          As to legal theories, the Federal Rules themselves permit
pleading of inconsistent theories in a single action. See Fed. R.
Civ. P. 8(e)(2).

                                -24-
               Circuit courts have been sensitive to this problem.                  In

Carrasca v. Pomeroy, 313 F.3d 828 (3rd Cir. 2002), the plaintiffs,

who were of Hispanic descent, brought a racial profiling action

against park officials alleging that the officials had applied

swimming       regulations     differentially      between       Hispanic   and   non-

Hispanic visitors.           Id. at 830, 832.           Plaintiffs had all been

arrested for use of the lake and had pled guilty to state charges

(though they later contended that at least one of the plaintiffs

had not actually broken the regulations).                 Id.    The district court

granted summary judgment in favor of the park officials, id. at

830,     and    the    court    of     appeals    reversed       and   remanded    for

reconsideration of the application of judicial estoppel, id. at

835.     In doing so, it relied on statements in Haring v. Prosise,

462 U.S. 306, 318-19 (1983), that there are a number of reasons why

a defendant might choose to plead guilty.                  Carrasca, 313 F.3d at

835;   see      also   Haring,       462   U.S.   at    318-19    (noting   that    "a

defendant's decision to plead guilty may have any number of other

motivations," including shock, avoidance of financial and emotional

cost, and hope for a lesser sentence).                 Accordingly, we reject the

notion    that    judicial     estoppel      automatically       applies    to    facts

admitted during guilty pleas.

b.   Application of Doctrine to this Case

               Having rejected any per se rule that judicial estoppel

always applies or never applies to facts admitted during a guilty


                                           -25-
plea, we turn to the question of application of the doctrine to the

particular facts of the case.            Our review is for whether the

district court abused its discretion in applying estoppel here.

Alternative Sys. Concepts, 374 F.3d at 30-31.

            We note again that Thore has conceded that his current

position is directly inconsistent with facts admitted at his plea

colloquy.      Furthermore, based on the transcript of Thore's plea

colloquy, it was reasonable for the district court to conclude that

there was sufficient acceptance by the state court of the facts

previously admitted to by Thore.

            Thore nevertheless attempts to fit his case into well-

recognized exceptions to judicial estoppel.           The Supreme Court has

noted   that    a   later   inconsistent     assertion      of    fact    will    not

necessarily     give    rise   to   judicial     estoppel    if    a     reasonable

justification can be offered for a change in positions.                    See New

Hampshire, 532 U.S. at 753, 755 (noting that inadvertence or

mistake may make application of judicial estoppel inappropriate,

and   referencing      "considerations      of   equity"    in    deciding       that

judicial estoppel was appropriate in that case).

            The classic case of justification is "when a party's

prior position was based on inadvertence or mistake."                    Id. at 753

(quoting John S. Clark Co. v. Faggert & Frieden, P.C., 65 F.3d 26,

29 (4th Cir. 1995)) (internal quotation marks omitted); see also 18

Moore's Federal Practice, supra, § 134.33[2], at 134-74 (noting


                                     -26-
that some courts require bad faith in order for judicial estoppel

to   apply).    For   example,   in    Alternative     System   Concepts     we

recognized an exception may be available "if . . . the new,

inconsistent position is the product of information neither known

nor readily available to [a party] at the time the initial position

was taken."     374 F.3d at 35; accord Intergen N.V. v. Grina, 344

F.3d 134, 144 (1st Cir. 2003) (rejecting "a rule that unduly

inhibits a plaintiff from appropriately adjusting its complaint

either to correct errors or to accommodate facts learned during

pretrial discovery").

           In   a   somewhat   analogous      case,   Cleveland   v.    Policy

Management Systems Corp., 526 U.S. 795 (1999), the Supreme Court

addressed the question of whether a party's claim that she was

totally disabled for SSI purposes judicially estopped her from

proving an essential element of her Americans with Disabilities Act

claim that she could perform the essential functions of her job (at

least with reasonable accommodation).           The opinion held that the

district   court    should   require    sufficient     explanation     of   any

apparent   inconsistency.      Id.     at   806-07.    While    that   opinion

addressed conflicts as to legal conclusions drawn from facts, and

specifically distinguished "purely factual contradictions," id. at




                                     -27-
807, we think the model of examining the defendant's reasons for

justification of the inconsistency is apt.7

            Thore argues that his initial agreement to the facts

stated at the guilty plea colloquy should not bind him because of

his own debilitated condition after the shooting and because he was

induced to agree to those facts by fraud8 on the part of the police

in their representations to him about what Laro said.               Neither

argument is enough here to establish any abuse of discretion in the

district court's ruling.

            Thore's argument that he truly does not recall the event

because he was shot and so cannot be held to have personally

remembered    the   details   he    agreed   with   at   the   colloquy   is

disingenuous.    No evidence at all supports this theory.         Even now

he does not argue that at the time of the plea colloquy, almost

four months after the shooting, he did not recall the events

leading up to the shooting.        At most, he has said he did not recall

what happened after he was shot and before he awakened in a

hospital.    There is no evidence he was not competent at the time of


     7
          Similarly, where a witness gives a clear and unambiguous
answer, he may not defeat summary judgment with a contradictory
affidavit unless he gives a satisfactory explanation of why the
testimony has changed. Colantuoni v. Alfred Calcagni & Sons, Inc.,
44 F.3d 1, 4-5 (1st Cir. 1994).
     8
          See Jaffe v. Accredited Sur. and Cas. Co., Inc., 294 F.3d
584, 595 n.7 (4th Cir. 2002) (holding that judicial estoppel does
not apply when a party's assertedly inconsistent positions stem
from reliance on statements made to the court by an opponent which
later prove to be untrue).

                                     -28-
the plea.     He has offered no justification for his own switch in

position between the plea bargain and now on what happened before

he was shot.    Laro's version of the facts is irrelevant to Thore's

own agreement with the recited facts.

            There is also no explanation for why Thore did not

attempt to talk to Laro before Thore pled guilty.             That Thore did

not think of it at the time is no more a justification than New

Hampshire's argument that it should be excused because it did

inadequate research into the historical facts during the first

proceeding.      Whatever   Laro   had   to   say,   this   was   information

available to Thore at the time of his plea.

            As for Thore's attempt to assert reliance on the police

accounts of Laro's interview, which Thore now says were fraud, a

district    court   could   consider     both   that    the   reliance    was

unreasonable and the evidence of fraud very weak.

            There are many explanations for Laro's reversal other

than that the police had engaged in a conspiracy and attributed

false statements to Laro in their reports.             The contemporaneous

statements made to the police were signed by Laro at the time as

accurate statements of the events.        That he now does not have the

same memory does not establish there was fraud or deception worked

on Thore or on the state criminal court by the police.9                   The


     9
          Thore also offered a statement from an accident
reconstruction witness that concludes that "the vehicular evidence
now available to us suggests the police were the aggressors in this

                                   -29-
reports of the police officers, Thore's girlfriend, and the third-

party witness at the time all support exactly the facts recited to

the state court in the plea colloquy.10

            Nor was it an abuse of discretion for the district court

to   conclude   that   the   equities   supported   application    of   the

doctrine.    There is little to support the plaintiff's claim of

fraud, and the defendants reasonably thought that the statements

made in the plea colloquy -- that Thore's actions had placed the

officers in fear of their lives -- protected them from exactly this

lawsuit.

            While   undoubtedly    cases   exist    in   which    criminal

defendants should not be held to the statements they made at the

time they pled guilty in a subsequent civil rights action, the

district court did not abuse its discretion in deciding this was

not one of those cases.

            We affirm the entry of judgment for defendants.         Costs

are awarded to defendants.




case." But that conclusion rests on Laro's testimony that Thore
did not hit any police cars.
      10
          As the defendant state officers point out, there are
additional equitable reasons to apply the estoppel doctrine.
Although Thore's arguments on estoppel are largely based on the
truck driver's deposition, Thore filed the lawsuit a year before
the truck driver made any such statements.

                                   -30-
