                                                                           FILED
                           NOT FOR PUBLICATION                             APR 02 2014

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


KEISCHA WILSON; MICHAEL                          No. 12-55700
WILSON, Sr., as individuals,
                                                 D.C. No. 2:09-cv-03544-PJW
              Plaintiffs - Appellants,

  v.                                             MEMORANDUM*

CITY OF LONG BEACH; HARRY
HAMPTON; JUSTIN S. KRUEGER;
BRIAN NYSTEDT,

              Defendants - Appellees.


                   Appeal from the United States District Court
                        for the Central District of California
                   Patrick J. Walsh, Magistrate Judge, Presiding

                     Argued and Submitted December 2, 2013
                              Pasadena, California

Before: SCHROEDER, CLIFTON, and WATFORD, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

                                          1
      Plaintiffs Michael Wilson, Sr. and Keischa Wilson appeal the district court’s

judgment in favor of Defendants. We affirm.

      The Wilsons challenge the district court’s grant of partial summary

judgment in favor of the Defendants based on its conclusion that the Wilsons’

convictions barred their claims for excessive force and for battery based upon

Defendants’ actions up to the time of their arrests, under Heck v. Humphrey, 512

U.S. 477 (1994). We agree with the conclusion of the district court. The jury in

the state court criminal case was instructed that it could convict the Wilsons of

resisting arrest only if it found the police were acting lawfully, and lawful was

defined to include the absence of excessive force. The jury convicted and that

judgment still stands. This case is materially the same as Beets v. County of Los

Angeles, 669 F.3d 1038 (2012), where the criminal jury convicted after being

instructed it could not do so unless the officer acted lawfully and did not use

excessive force. We held the civil case was barred by Heck. We must reach the

same conclusion here.

      The Wilsons also challenge the district court’s instruction to the jury that it

was not to consider evidence of excessive force “prior to the time that the officers

began the process the handcuffing the Wilsons.” That instruction was consistent




                                          2
with the conclusion that the Wilsons’ claim based on alleged misconduct prior to

that time was barred under Heck.

      AFFIRMED.




                                         3
                                                                             FILED
Wilson v. City of Long Beach, No. 12-55700                                    APR 02 2014

                                                                          MOLLY C. DWYER, CLERK
WATFORD, Circuit Judge, dissenting:                                        U.S. COURT OF APPEALS



      The majority’s disposition of this case rests on the unstated assumption that

the jury in the Wilsons’ criminal trial necessarily determined the lawfulness of the

officers’ actions throughout the whole course of their encounter with the Wilsons.

The majority’s assumption could be true only if the jury had actually been

instructed that, to convict, it had to find that the officers acted lawfully throughout

the whole course of their encounter with the Wilsons. But the jury in the Wilsons’

criminal trial never received such an instruction.

      The jury never received that instruction because it’s not an accurate

statement of California law. To be guilty of violating California Penal Code § 69,

the defendant must obstruct an officer who is lawfully performing his duties. If the

defendant obstructs an officer who is lawfully performing his duties, the fact that

the officer subsequently uses excessive force later in the encounter doesn’t negate

the defendant’s guilt of the earlier-committed offense. Yount v. City of

Sacramento, 183 P.3d 471, 482 (Cal. 2008); see also Hooper v. Cnty. of San

Diego, 629 F.3d 1127, 1132 (9th Cir. 2011). Thus, when the defendant is

convicted of violating Penal Code § 69 during an encounter involving multiple acts

of obstruction, some of which occurred while the officer was lawfully performing

his duties but some of which occurred while the officer was using excessive force,
                                                                           Page 2 of 5
a court asked to decide whether the bar imposed by Heck v. Humphrey, 512 U.S.

477 (1994), applies must determine which act (or acts) formed the basis for the

conviction.

      When making that determination in the context of convictions obtained by

guilty plea, courts examine the record from the underlying criminal case to see

whether it’s clear which act or acts formed the factual basis for the plea. If the

record is clear on that score, the bar imposed by Heck can apply. See, e.g.,

Sappington v. Bartee, 195 F.3d 234, 236–37 (5th Cir. 1999) (per curiam). But

when the record isn’t clear, such that it’s possible the defendant pleaded guilty to

acts of obstruction that occurred before the officer used excessive force, courts

have held that the Heck bar doesn’t apply. See, e.g., Hadley v. Gutierrez, 526 F.3d

1324, 1331 (11th Cir. 2008); Bush v. Strain, 513 F.3d 492, 498–500 (5th Cir.

2008); Dyer v. Lee, 488 F.3d 876, 882 (11th Cir. 2007); VanGilder v. Baker, 435

F.3d 689, 692 (7th Cir. 2006); Sanford v. Motts, 258 F.3d 1117, 1120 (9th Cir.

2001). In that circumstance, success on an excessive force claim under 42 U.S.C.

§ 1983 won’t necessarily imply the invalidity of the defendant’s conviction, as

Heck requires. 512 U.S. at 487 n.7. Any other rule would mean 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.” VanGilder,
                                                                           Page 3 of 5
435 F.3d at 692.

      For reasons that remain a mystery to me, we suggested in Smith v. City of

Hemet, 394 F.3d 689 (9th Cir. 2005) (en banc), that the analysis is different when

the defendant’s conviction results from a jury verdict rather than a guilty plea.

There, we made the sweeping assertion that, regardless of the jury instructions

given in the criminal trial, “a jury’s verdict necessarily determines the lawfulness

of the officers’ actions throughout the whole course of the defendant’s conduct,

and any action alleging the use of excessive force would ‘necessarily imply the

invalidity of his conviction.’” Id. at 700 n.5 (quoting Susag v. City of Lake Forest,

115 Cal. Rptr. 2d 269, 274 (Ct. App. 2002)). According to the Smith footnote,

unlike in the guilty-plea context, we don’t examine the record to determine

whether the defendant might have been convicted for acts that occurred before the

officer used excessive force. Instead, if the jury found the defendant guilty, we just

assume that it found the officers acted lawfully throughout their entire encounter

with the defendant. The only authority Smith cited for that proposition was Susag,

but that case holds no such thing. We later quoted this same language from Smith

in Beets v. County of Los Angeles, 669 F.3d 1038 (9th Cir. 2012), without

examining the soundness of its premise. See id. at 1045.

      I can’t think of any reason why the analysis under Heck should proceed
                                                                           Page 4 of 5
differently for convictions resulting from a jury verdict as opposed to a guilty plea,

and neither Smith nor Beets offered any justification for that distinction. I don’t

think we’re bound by the language from the Smith footnote or the quotation of that

language in Beets, since in both cases the language was dicta. In Smith, it was

offered as one of three independently sufficient reasons for distinguishing a case

relied on by the dissent. In Beets, the language quoted from Smith’s footnote was

not only surplusage but also of no relevance, because in that case there weren’t

multiple acts of obstruction that could have served as the basis for the criminal

conviction, as is true in this case. That’s why the majority is simply wrong in

declaring that this case and Beets are “materially the same.” Maj. op. at 2.

      If we followed our normal mode of analysis under Heck, it’s clear we would

have to reverse. Examining the jury instructions given in the criminal trial, it’s

impossible to tell which acts of obstruction the Wilsons’ criminal convictions were

based on, so we can’t say that success on their excessive force claims will

necessarily imply that those convictions are invalid. The jury at the criminal trial

wasn’t instructed to find the Wilsons not guilty if the officers used excessive force

at any point during the encounter. Instead, the instructions required the jury to find

only that at some point during the encounter the Wilsons obstructed the officers

while they were lawfully performing their duties. Mr. and Mrs. Wilson both
                                                                           Page 5 of 5
engaged in acts of obstruction before the officers used any force against them, and

for all we know their convictions were based on those acts alone. A jury in the

§ 1983 action could find that the officers responded to that initial obstruction with

excessive force, and doing so would not in any way call into question the validity

of the Wilsons’ convictions. As a result, the bar imposed by Heck doesn’t apply

here. The majority has erred in holding otherwise.
