                  FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

THOMAS SMITH,                          
                Plaintiff-Appellant,
                v.
                                             No. 02-56445
CITY OF HEMET, a municipal
corporation; HEMET POLICE                     D.C. No.
                                           CV-00-00811-VAP
DEPARTMENT; LEE EVANSON; DAVE
QUINN; AARON MEDINA; DANIEL                   OPINION
REINBOLT; TRAINER; NATE MILLER;
PETER HEWITT,
             Defendants-Appellees.
                                       
       Appeal from the United States District Court
           for the Central District of California
       Virginia A. Phillips, District Judge, Presiding

                 Argued and Submitted
       October 14, 2004—San Francisco, California

                   Filed January 10, 2005

Before: Mary M. Schroeder, Chief Judge, Harry Pregerson,
Stephen Reinhardt, Andrew J. Kleinfeld, Sidney R. Thomas,
 Barry G. Silverman, William A. Fletcher, Richard A. Paez,
Marsha S. Berzon, Jay S. Bybee, and Consuelo M. Callahan,
                      Circuit Judges.

                Opinion by Judge Reinhardt;
                Dissent by Judge Silverman




                             227
                     SMITH v. CITY OF HEMET                   231


                          COUNSEL

Robert Mann, Esq. and Donald W. Cook, Esq., Los Angeles,
California, for the plaintiff-appellant.

Julie H. Biggs, City Attorney, Hemet, California; Elizabeth R.
Feffer, Esq., Burke, Williams & Sorensen, LLP, Los Angeles,
California, for the defendants-appellees.


                           OPINION

REINHARDT, Circuit Judge:

   We took this case en banc to clarify the law regarding
whether, under Heck v. Humphrey, 512 U.S. 477 (1994), a
§ 1983 action for excessive force is necessarily barred by a
plaintiff’s conviction under California Penal Code § 148(a)(1)
for willfully resisting, delaying, or obstructing a peace officer
in the performance of his duties. We also take this occasion
to bring our circuit into line with the others with respect to the
definition of “deadly force.”

   Thomas Smith appeals the district court’s order granting
the defendants’ summary judgment motion in his § 1983
232                 SMITH v. CITY OF HEMET
action for excessive use of force. We reverse and hold that
Smith’s § 1983 action is not barred by Heck because the
excessive force may have been employed against him subse-
quent to the time he engaged in the conduct that constituted
the basis for his conviction. In such circumstance, Smith’s
§ 1983 action neither demonstrates nor necessarily implies the
invalidity of his conviction. We also hold that in this circuit
“deadly force” has the same meaning as it does in the other
circuits that have defined the term, a definition that finds its
origin in the Model Penal Code. We define deadly force as
force that creates a substantial risk of causing death or serious
bodily injury. We reverse the grant of summary judgment and
remand to the district court.

I.    FACTUAL AND PROCEDURAL HISTORY

   The facts of the encounter between Smith and the police are
not seriously disputed. To the extent that there is a difference
between the parties, however, we look to the version most
favorable to the plaintiff, the non-moving party. On the night
of August 16, 1999, Smith’s wife placed an emergency phone
call to the Hemet Police Department (“Department”) report-
ing that her husband “was hitting her and/or was physical with
her.” Mrs. Smith informed emergency personnel that her hus-
band did not have a gun, there were no weapons in the house,
and he was clad in his pajamas.

   Officer Daniel Reinbolt was the first officer to arrive at the
house in order to investigate the incident. He observed Smith
standing on his front porch and “noticed Smith’s hands in his
pockets.” The officer announced himself and instructed Smith
to remove his hands from his pockets. Smith refused,
responding with expletives and directing Officer Reinbolt to
come to him. Officer Reinbolt informed Smith that he would
approach, but only after Smith removed his hands from his
pockets and showed that he had no weapons. Smith again
refused to remove his hands from his pockets and instead
entered his home.
                    SMITH v. CITY OF HEMET                 233
   After Officer Reinbolt advised dispatch of what had tran-
spired, Smith reemerged onto the porch with his hands still in
his pockets. Officer Reinbolt again instructed Smith to show
his hands. Smith complied with this instruction, but then
refused to follow an order to “put his hands on his head and
walk towards [the officer’s] voice[.]” Instead, Smith again
asked Officer Reinbolt to approach and enter the home with
him.

   Officer Nate Miller arrived in response to Officer Rein-
bolt’s radioed request for assistance. Observing Smith’s
refusal to cooperate with Officer Reinbolt, Officer Miller con-
tacted dispatch to request additional assistance, including a
canine unit. Officer David Quinn, a canine handler with the
Department, arrived shortly thereafter with “Quando,” a
police canine. Officer Aaron Medina also responded to one of
the assistance calls.

   Officer Quinn instructed Smith to turn around and place his
hands on his head. Smith again refused to obey the order,
despite being informed that Quando could be sent to subdue
him and might bite. Without further warning, Officer Quinn
sprayed Smith in the face with pepper spray. Smith responded
with expletives and attempted to reenter his residence, but the
door had been locked by Mrs. Smith. Several more officers
then moved onto the porch, grabbed Smith from behind,
slammed him against the door, and threw him down on the
porch; Officer Quinn ordered the canine to attack him.
Quando bit Smith on his right shoulder and neck area. At
some point, either before or after the order to attack, the dog
sank his teeth into Smith’s arm and clung to it.

   With at least four officers surrounding him and Quando’s
teeth sunk into his shoulder and neck, Smith agreed to comply
with the officers’ orders and submit to arrest. Although Smith
submitted, he admits that he was “curled up” in a fetal posi-
tion in an attempt to shield himself from the dog and that one
of his hands was “tucked in somewhere,” still out of the offi-
234                     SMITH v. CITY OF HEMET
cers’ view. As one of the officers attempted to secure both
arms, Quando was instructed by Officer Quinn to bite Smith
a second time; this time the dog bit Smith on his left side and
shoulder blade. Upon Officer Quinn’s order, Quando ulti-
mately retreated, and the officers dragged Smith off the porch,
face down. Once off the porch, Smith continued to shield one
of his arms from the dog’s attack. Officer Quinn then ordered
Quando to bite Smith a third time. This time, the dog bit into
Smith’s buttock. While all this was transpiring, Smith was
pepper-sprayed at least four times, at least two of which
sprayings occurred after the police dog had seized him and
broken his skin, and at least one after the officers had pinned
him to the ground.

   Eventually, the officers secured the handcuffs on both of
Smith’s arms. Officer Reinbolt then washed Smith’s eyes out
with water from a nearby hose, but did not cleanse the
wounds he received as a result of the dog bites.1 Paramedics
arrived shortly thereafter and attended to Smith’s injuries.

   Smith pled guilty in California Superior Court to a viola-
tion of California Penal Code § 148(a)(1).2 Section 148(a)(1)
provides: “Every person who willfully resists, delays, or
obstructs any . . . peace officer . . . in the discharge or attempt
to discharge any duty of his or her office or employment, . . .
shall be [guilty of a misdemeanor].” Smith was sentenced to
36 months’ probation.
  1
     Although the dissent is correct that Officer Reinbolt’s tape recording
of the encounter between Smith and the Hemet police is about 5 minutes
and 13 seconds, it neglects to mention that the tape which constitutes a
part of the record is only a partial recording of the encounter. The tape,
introduced by Smith, does not begin until some point after he returned to
the porch from inside the house. The record is unclear as to the duration
of the entire encounter. Suffice it to say that we know, given the declara-
tion and depositions in the case, that it was substantially longer than five
minutes.
   2
     Smith also pled guilty to spousal battery under California Penal Code
§ 243(e). That conviction is not at issue in this case.
                        SMITH v. CITY OF HEMET                  235
   Smith filed a complaint under 42 U.S.C. § 1983 in the Dis-
trict Court, alleging that the officers used excessive force
when they sprayed him with pepper spray and sicced the
police canine on him. The defendants moved for summary
judgment on several grounds, among them that Heck v. Hum-
phrey bars Smith’s § 1983 action and that the challenged use
of force — the pepper spray and police dog — was appropri-
ate and reasonable under the circumstances. The district court
granted summary judgment on the basis that Heck barred
Smith’s § 1983 action. Judgment for the defendants was
entered, and Smith filed a timely Notice of Appeal.

II.        DISCUSSION

      A.    The Alleged Heck v. Humphrey Bar

  [1] In Heck v. Humphrey, the United States Supreme Court
held that:

       [I]n order to recover damages for allegedly unconsti-
       tutional 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 determination, or called into
       question by a federal court’s issuance of a writ of
       habeas corpus. . . . A claim for damages bearing that
       relationship to a conviction or sentence that has not
       been so invalidated is not cognizable under § 1983.
       Thus, when a state prisoner seeks damages in a
       § 1983 suit, the district court must consider whether
       a judgment in favor of the plaintiff would necessarily
       imply the invalidity of his conviction or sentence; if
       it would, the complaint must be dismissed . . . .

512 U.S. at 486-87. Heck says that “if a criminal conviction
arising out of the same facts stands and is fundamentally
236                 SMITH v. CITY OF HEMET
inconsistent with the unlawful behavior for which section
1983 damages are sought, the 1983 action must be dis-
missed.” Smithart v. Towery, 79 F.3d 951, 952 (9th Cir.
1996). As the Supreme Court explained, the relevant question
is whether success in a subsequent § 1983 suit would “neces-
sarily imply” or “demonstrate” the invalidity of the earlier
conviction or sentence under § 148(a)(1). Heck, 512 U.S. at
487; see also Cunningham v. Gates, 312 F.3d 1148, 1153-54
(9th Cir. 2003) (as amended) (Heck bars suits “based on theo-
ries that ‘necessarily imply the invalidity of [the plaintiff’s]
convictions or sentences.’ ”) (quoting Heck, 512 U.S. at 487).
We conclude that success in Smith’s action would not give
rise to any such necessary implication.

   [2] Under California Penal Code § 148(a)(1), “[t]he legal
elements of a violation . . . 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 Muhammed C., 95
Cal. App. 4th 1325, 1329 (Cal. Ct. App. 2002) (citations omit-
ted). For a § 148(a)(1) conviction to be valid, a criminal
defendant must have “resist[ed], delay[ed], or obstruct[ed]” a
police officer in the lawful exercise of his duties. In Califor-
nia, the lawfulness of the officer’s conduct is an essential ele-
ment of the offense of resisting, delaying, or obstructing a
peace officer. See People v. Curtis, 70 Cal. 2d 347, 354-56,
357 n.9 (1969); Susag v. City of Lake Forest, 94 Cal. App. 4th
1401, 1409 (Cal. Ct. App. 2002). “If the officer was not per-
forming his or her duties at the time of the arrest, the arrest
is unlawful and the arrestee cannot be convicted under Penal
Code section 148, subdivision (a).” Id. (emphasis added).

   [3] Excessive force used by a police officer at the time of
the arrest is not within the performance of the officer’s duty.
Id.; People v. Olguin, 119 Cal. App. 3d 39, 45-46 (Cal. Ct.
App. 1981) (“[A]n arrest made with excessive force is equally
                    SMITH v. CITY OF HEMET                  237
unlawful. ‘[It] is a public offense for a peace officer to use
unreasonable and excessive force in effecting an arrest.’ ”)
(citation omitted) (emphasis added); People v. White, 101 Cal.
App. 3d 161, 167 (Cal. Ct. App. 1980) (“Thus, in the present
case it becomes essential for the jury to be told that if they
found the arrest was made with excessive force, the arrest was
unlawful and they should find the defendant not guilty of
those charges which required the officer to be lawfully
engaged in the performance of his duties ([Cal. Penal Code]
§§ 245, subd. (b), 243 and 148).”) (emphasis added).

   [4] Under the definitions set forth in the California cases
listed above, “the time of the arrest” does not include previous
stages of law enforcement activities that might or might not
lead to an arrest, such as conducting an investigation; it
includes only the time during which the arrest is being
effected. A conviction for resisting arrest under § 148(a)(1)
may be lawfully obtained only if the officers do not use
excessive force in the course of making that arrest. A convic-
tion based on conduct that occurred before the officers com-
mence the process of arresting the defendant is not
“necessarily” rendered invalid by the officers’ subsequent use
of excessive force in making the arrest. For example, the offi-
cers do not act unlawfully when they perform investigative
duties a defendant seeks to obstruct, but only afterwards when
they employ excessive force in making the arrest. Similarly,
excessive force used after a defendant has been arrested may
properly be the subject of a § 1983 action notwithstanding the
defendant’s conviction on a charge of resisting an arrest that
was itself lawfully conducted. See, e.g., Sanford v. Motts, 258
F.3d 1117, 1119-20 (9th Cir. 2001) (explaining that a success-
ful § 1983 suit based on excessive force would not necessarily
imply the invalidity of Sanford’s conviction under § 148(a)(1)
because the officer’s use of excessive force occurred subse-
quent to the conduct for which Sanford was convicted under
§ 148(a)(1)).

  Defendants contend that Heck bars Smith’s § 1983 action
because the lawfulness of Smith’s arrest was determined in
238                 SMITH v. CITY OF HEMET
the criminal action in which he voluntarily pled guilty. They
urge that if Smith’s allegations that he was subjected to exces-
sive force during the arrest are now found to be true, that find-
ing will necessarily imply the invalidity of his criminal
conviction under § 148(a)(1). Because that conviction has not
been reversed, expunged, declared invalid, or called into
question by issuance of a writ of habeas corpus, defendants
assert that Smith is precluded from pursuing his § 1983
claims.

   Smith responds that the defendants unlawfully used exces-
sive force against him after he had committed the acts on
which his conviction was based, and thus that a verdict in his
favor would not imply that his conviction was invalid. At the
very least, Smith contends, the record does not reflect which
acts underlay his plea and therefore his § 1983 action is not
necessarily inconsistent with his conviction. Accordingly, he
urges, Heck v. Humphrey is not a bar. We agree.

   The pertinent facts are as follows: Smith engaged in at least
three or four acts in violation of § 148(a)(1) before the offi-
cers used force against him. These acts of willful resistance,
delay, or obstruction occurred prior to the time that the offi-
cers had determined to arrest him for any criminal conduct.
Indeed, they occurred in the course of the officers’ lawful per-
formance of their duty to investigate whether an offense had
occurred. The acts by Smith include twice refusing to take his
hands out of his pockets, reentering his home once; repeatedly
refusing to put his hands on his head and come down off the
porch, and, finally refusing to put his hands on his head and
turn around. Each of these acts constituted a violation of
§ 148(a)(1) sufficient to warrant the filing of a criminal
charge. Each could support a conviction under that section for
obstructing the criminal investigation. See, e.g., In re Muham-
med C., 95 Cal. App. 4th at 1329-30 (holding that defendant
violated § 148(a)(1) when he refused officers’ repeated
requests to step away from the patrol car); People v. Green,
51 Cal. App. 4th 1433, 1438 (Cal. Ct. App. 1997) (affirming
                         SMITH v. CITY OF HEMET                           239
§ 148(a)(1) conviction in which defendant obstructed an
investigating police officer by verbally intimidating a sus-
pected victim because “the attempt to intimidate the suspected
victim impeded the investigation. This is the very evil which
the Legislature sought to proscribe by the enactment of sec-
tion 148.”) (emphasis added).

   Defendants do not dispute that Smith violated § 148(a)(1)
when he impeded their investigation by refusing to comply
with their commands and that these acts by Smith occurred
before the officers came onto the porch and attempted to
arrest him. Officer Quinn stated in his deposition that, based
on his training and experience, he knew that Smith had vio-
lated § 148(a)(1) before the officers came onto the porch to
make their arrest.3 The City of Hemet’s police practices expert
  3
   Specifically, Officer Quinn stated:
      Q: When you were approaching Mr. Smith, he was still in dis-
      obedience of the officers’ commands; is that right?
      A:    Sure.
      ...
      Q: . . . Based on your training, what are the elements for mak-
      ing an arrest for a violation of Section 148 of the Penal Code?
      A: Somebody has to obstruct, delay, or resist a police officer in
      the performance of their duties.
      Q: Were the officers engaged in the performance of their duties
      as they were giving command to Mr. Smith to put his hands on
      his head and step off the porch?
      A:    Yes.
      Q: Was Mr. Smith’s noncompliance with those commands
      obstructing or delaying the officers in the performance of their
      duties?
      A:    Yes.
      Q: So based on your training and experience, Mr. Smith — that
      is, by the time that you’re approaching him on the porch — Mr.
      Smith had violated Penal Code Section 148.
      A:    Sure.
240                 SMITH v. CITY OF HEMET
also stated in his declaration that Smith had violated
§ 148(a)(1) multiple times before the defendant officers
attempted to arrest him. Finally, at oral argument, counsel for
the defendants made a similar concession.

   While both parties agree that Smith violated § 148(a)(1) a
number of times before the officers came onto the porch to
make their arrest, it is also the case that Smith subsequently
violated the statute during the course of the officers’ efforts
to arrest him. Once the officers were on the porch, Smith
again disobeyed their commands, both after he was sprayed
with pepper spray and also immediately prior to the attacks by
Quando. It is, thus, clear that if Smith pled guilty to
§ 148(a)(1) based on his behavior after the officers came onto
the porch, during the course of the arrest, his suit would be
barred by Heck. See Heck, 512 U.S. at 486-87. In such 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. See id.

   [5] Under Heck, Smith would be allowed to bring a § 1983
action, however, if the use of excessive force occurred subse-
quent to the conduct on which his conviction was based. Spe-
cifically, Smith would be entitled to proceed below if his
conviction were 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 his wife’s complaint. In such 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                  241
   The defendants’ argument wrongly focuses on Smith’s con-
duct rather than the officers’. There were two different phases
of the officers’ conduct here — first, the investigative phase;
then, when Smith repeatedly refused to cooperate, the arrest
for violating § 148(a)(1) and for the underlying offense that
otherwise might or might not have led to an arrest. The offi-
cers’ allegedly unlawful conduct which transpired after they
decided to use physical force to subdue Smith occurred during
the second phase of their law enforcement activities, during
the course of their effort to take Smith into custody. Prior to
that time, during the investigative phase, they had issued only
verbal commands, all of which were concededly well within
the bounds of their general police powers. Smith’s obstruction
of that investigation came to an end when the officers decided
to arrest him. Thereafter, in the course of the arrest, they
allegedly engaged in the use of excessive force that rendered
the arrest unlawful. It did not, however, render their preceding
investigation unlawful, nor would it for Heck purposes invali-
date a conviction for obstructing that investigation. California
law immunizes Smith from prosecution for any conduct that
occurred at the time of, or during the course of his unlawful
arrest, but it does not immunize him from prosecution for
unlawful conduct that occurred prior or subsequent to that
time.

   [6] There is one remaining complication. As in Sanford v.
Motts, “nothing in the record informs us what the factual basis
for [Smith’s] plea” was. 258 F.3d at 1119. There is no indica-
tion as to whether Smith’s plea was based on his conduct that
impeded the officers’ investigation before they came onto the
porch, or his subsequent resistance to their physical attempt
to arrest him, or both. The record is clear that Smith pled
guilty to one count of violating § 148(a)(1), but there is no
information as to which of his actions constituted the basis for
his plea. The charging complaint simply states that Smith vio-
lated § 148(a)(1) when he wilfully and unlawfully resisted,
delayed, and obstructed the defendant officers in the dis-
charge of, and attempt to discharge, their duty. Neither party
242                 SMITH v. CITY OF HEMET
in its briefs or at oral argument was able to identify the facts
underlying the plea or to advise us regarding what transpired
at the time Smith entered his plea. It is therefore entirely pos-
sible that, as Smith asserts, he pled guilty to a violation of
§ 148(a)(1) on the basis of his actions during the time the offi-
cers were conducting their lawful investigation. As the offi-
cers acted lawfully in issuing orders to Smith while they were
on the ground below where he was standing on his porch, his
disobedience of those orders, as we have explained, would not
be immunized from prosecution by the officers’ subsequent
unlawful acts after they decided to arrest him. Because we are
unable to determine “the factual basis for [Smith’s] plea,” id.,
his lawsuit does not necessarily imply the invalidity of his
conviction and is therefore not barred by Heck. Heck, 512
U.S. at 487.

   Under similar factual circumstances in Sanford v. Motts, we
held that because there were “a variety of accusations” against
the plaintiff which could have formed the basis of the
§ 148(a)(1) conviction, and because the challenged conduct
was not necessarily the predicate for his plea, Sanford’s
§ 1983 suit did not necessarily imply the invalidity of the con-
viction. 258 F.3d at 1119-20. As our dissenting colleagues
aptly note, in that case we said that “[e]xcessive force used
after an arrest is made does not destroy the lawfulness of the
arrest” for a violation of California Penal Code § 148(a)(1).
Dissent at 257 (quoting Sanford, 258 F.3d at 1120). Although
Sanford involved an allegation that Officer Motts punched the
plaintiff in the face after the plaintiff was arrested, the San-
ford court did not limit its explanation of Heck to such a case.
What the dissent ignores is that in Sanford, we clearly held
that “Sanford’s conviction required that Motts be acting law-
fully in the performance of his duties ‘at the time the offense
against him was committed. Hence, if Motts used excessive
force subsequent to the time Sanford interfered with his duty,
success in her section 1983 claim will not invalidate her con-
viction. Heck is no bar.” 258 F.3d at 1120 (citation omitted)
(emphasis added). Our holding in Sanford was that a § 1983
                         SMITH v. CITY OF HEMET                           243
action is not barred by Heck unless the alleged excessive force
occurred at the time the offense under § 148(a)(1) was being
committed. Id. Thus, in this case, under Sanford, as long as
the officers were acting lawfully at the time the violation of
§ 148(a)(1) took place, their alleged acts of excessive force,
whether they occurred before or after Smith committed the
acts to which he pled, would not invalidate his conviction.4

   [7] As we have explained, a § 1983 action is not barred
under Heck unless it is clear from the record that its success-
ful prosecution would necessarily imply or demonstrate that
the plaintiff’s earlier conviction was invalid. Because on the
record before us we cannot determine that the actions that
underlay Smith’s conviction upon his plea of guilty occurred
at the time of or during the course of his unlawful arrest,
Smith’s success in the present action would not necessarily
impugn his conviction. Accordingly, the defendants are not
entitled to summary judgment on the basis of Heck v. Hum-
phrey.5
                                                  (Text continued on page 245)

   4
     Additionally, we note that other circuits have held that Heck does not
bar § 1983 actions alleging excessive force despite the plaintiff’s convic-
tion for resisting arrest. See, e.g., Robinson v. Doe, 272 F.3d 921, 923 (7th
Cir. 2001) (holding that a finding of excessive force in a § 1983 action
would not necessarily imply the invalidity of the plaintiff’s conviction for
resisting arrest); Willingham v. Loughnan, 261 F.3d 1178, 1183 (11th Cir.
2001), cert. granted and judgment vacated on other grounds, 537 U.S. 801
(2002) (same); Martinez v. City of Albuquerque, 184 F.3d 1123, 1127
(10th Cir. 1999) (same); Nelson v. Jashurek, 109 F.3d 142 (3d Cir. 1997)
(same); Wells v. Bonner, 45 F.3d 90, 95 (5th Cir. 1995) (same).
   5
     The dissent relies almost exclusively on Susag v. City of Lake Forest.
See 94 Cal. App. 4th at 1408-10. That case is not controlling for at least
three reasons. First, the Susag court treated all of the acts involved, includ-
ing those that immediately preceded the actual arrest, as occurring “at the
time of the arrest.” In Susag, unlike in the present case, there were not two
separate phases to the incident, the investigative phase and the arrest itself.
Rather, in Susag the court considered all of the plaintiff’s actions to have
occurred in connection with the arrest. For this reason alone, Susag is
inapplicable here. Second, the discussion in Susag upon which the dissent
relies is contained in the midst of an analysis of the proper construction
244                      SMITH v. CITY OF HEMET
to be given Heck v. Humphrey. Heck requires the application of federal
law to the particular circumstances of the plaintiff’s conviction. Insofar as
Susag purports to construe Heck, a federal doctrine, we are in no way con-
trolled by it or required to afford it deference. Moreover, Susag miscon-
strues federal law in that it states, as the dissent emphasizes, that the
burden shifted to the civil rights plaintiff to show that a favorable finding
“would not necessarily imply the invalidity of the conviction.” Federal law
is to the contrary. See Sanford, 258 F.3d at 1119 (placing the burden on
the defendants to prove that plaintiff’s success in her § 1983 action would
necessarily imply the invalidity of her conviction). Unless it is clear that
the plaintiff’s action will impugn the underlying conviction the § 1983
action may proceed. It is because of this misapplication of federal law that
Susag reached the result it did. Accordingly, it does not bind us. Third,
under California law, persons who violate § 148(a)(1) in a number of
respects in the course of a single incident may be charged and convicted
only once. See People v. Simon, 21 Cal. App. 88 (Cal. Ct. App. 1913).
This rule is for the benefit of defendants and under it a general charge
encompasses, and precludes further prosecution of, all the acts involved.
Unlike Smith, Susag was convicted after a trial in which the prosecutor
established a factual pattern of conduct sufficient for the jury to determine
his guilt beyond a reasonable doubt. Id. at 1401-07. Where a defendant is
charged with a single-act offense but there are multiple acts involved each
of which could serve as the basis for a conviction, a jury does not deter-
mine which specific act or acts form the basis for the conviction. See Peo-
ple v. McIntyre, 115 Cal. App. 3d 899, 910-11 (Cal. Ct. App. 1981) (“It
is only incumbent that [the jury] agree [a culpable act] occurred on that
date, the exact time or sequence in relation to the [offense] is not materi-
al.”) (citation omitted). Thus, 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.” Susag, 94 Cal.
App. 4th at 1410 (emphasis added). However, where a § 1983 plaintiff has
pled guilty or entered a plea of nolo contendere, such as Smith and San-
ford did, it is not necessarily the case that the factual basis for his convic-
tion included the whole course of his conduct. In the case of a guilty plea
or plea of nolo contendere, as the dissent acknowledges, a defendant 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 specific acts.
Because Smith pled guilty rather than being convicted by a jury, it is
entirely possible that, as he contends, his plea was based on only those
                       SMITH v. CITY OF HEMET                       245
  B.    The Excessive Force Claim

   Smith alleges that after the officers came onto the porch
they used both excessive force, generally, and deadly force,
specifically, against him in contravention of the Fourth
Amendment. Defendants, in contrast, urge that the force used
was at all times reasonable and that we may therefore affirm
the district court’s summary judgment order on this alterna-
tive ground. Although we are free to affirm on any alternative
basis if the record supports our doing so, we conclude that the
record before us does not warrant such a result.

   [8] A Fourth Amendment claim of excessive force is ana-
lyzed under the framework outlined by the Supreme Court in
Graham v. Connor, 490 U.S. 386 (1989). All claims that law
enforcement officers have used excessive force — deadly or
otherwise — in the course of an arrest must be analyzed under
the Fourth Amendment and its “reasonableness” standard. See
Graham v. Connor, 490 U.S. at 395; Ward v. City of San Jose,
967 F.2d 280, 284 (9th Cir. 1992) (as amended). “It is clear
that under Graham, excessive force claims arising before or
during arrest are to be analyzed exclusively under the [F]ourth
[A]mendment’s reasonableness standard. . . .” Reed v. Hoy,
909 F.2d 324, 329 (9th Cir. 1989), cert. denied, 501 U.S.
1250 (1991); see also Hammer v. Gross, 932 F.2d 842, 845
(9th Cir. 1991) (en banc). That analysis requires balancing the
“nature and quality of the intrusion” on a person’s liberty with
the “countervailing governmental interests at stake” to deter-
mine whether the use of force was objectively reasonable
under the circumstances. Graham, 490 U.S. at 396.

  The Supreme Court has said that “the ‘reasonableness’
inquiry in an excessive force case is an objective one: The

actions that served to obstruct the officers’ investigation, all of which
occurred prior to, rather than at the time of, the arrest. Thus, Susag is
clearly distinguishable.
246                 SMITH v. CITY OF HEMET
question is whether the officers’ actions are ‘objectively rea-
sonable’ in light of the facts and circumstances confronting
them[.]” Id. at 397 (citations omitted); see, e.g., Jackson v.
City of Bremerton, 268 F.3d 646, 651 (9th Cir. 2001). “The
question is not simply whether the force was necessary to
accomplish a legitimate police objective; it is whether the
force used was reasonable in light of all the relevant circum-
stances.” Hammer v. Gross, 932 F.2d at 846 (emphasis in
original).

   In Graham, the Supreme Court indicated that relevant fac-
tors in the Fourth Amendment reasonableness inquiry include
“[1] the severity of the crime at issue, [2] whether the suspect
poses an immediate threat to the safety of the officers or oth-
ers, and [3] whether he is actively resisting arrest or attempt-
ing to evade arrest by flight.” 490 U.S. at 396. The Court did
not, however, limit the inquiry to those factors. “Because the
test of reasonableness under the Fourth Amendment is not
capable of precise definition or mechanical application,” the
reasonableness of a seizure must instead be assessed by care-
fully considering the objective facts and circumstances that
confronted the arresting officers. Id. In some cases, for exam-
ple, the availability of alternative methods of capturing or
subduing a suspect may be a factor to consider. See Chew v.
Gates, 27 F.3d 1432, 1441 n.5 (9th Cir. 1994).

   If the evidence, reviewed in the light most favorable to
Smith, could support a finding of excessive force, then the
defendants are not entitled to summary judgment. “Because
[the excessive force inquiry] nearly always requires a jury to
sift through disputed factual contentions, and to draw infer-
ences therefrom, we have held on many occasions that sum-
mary judgment or judgment as a matter of law in excessive
force cases should be granted sparingly.” Santos v. Gates, 287
F.3d 846, 853 (9th Cir. 2002); see also Liston v. County of
Riverside, 120 F.3d 965, 976 n.10 (9th Cir. 1997) (as
amended) (“We have held repeatedly that the reasonableness
of force used is ordinarily a question of fact for the jury.”).
                         SMITH v. CITY OF HEMET                           247
This is because such cases almost always turn on a jury’s
credibility determinations. The case before us is no different.

   [9] First, it is necessary to assess the quantum of force used
to arrest Smith. “The three factors articulated in Graham, and
other factors bearing on the reasonableness of a particular
application of force, are not to be considered in a vacuum but
only in relation to the amount of force used to effect a particu-
lar seizure — an analysis the district court never explicitly
undertook.” Chew v. Gates, 27 F.3d at 1441. By even the
defendants’ account, the force used against Smith was severe.
The Hemet Police Department’s use of force policy, General
Order U-102, classifies the use of both pepper spray and a
police service dog as “intermediate” force. Defendants
acknowledge that they employed both types of force, and that
“intermediate” force is the most severe force authorized short
of deadly force. On Smith’s account, the officers’ use of force
was even greater. As Smith puts it, the officers pepper-
sprayed him four times, one of which occurred after they had
him pinned down, and sicced Quando on him three times.
Under the facts as we must assess them for purposes of this
appeal, the officers slammed Smith against the wall, threw
him to the ground, slid him off the porch while face down,
pepper-sprayed him repeatedly, and either permitted or
instructed Quando to attack him on three occasions,6 at least
one such attack occurring while the officers had him pinned
to the ground. The canine assault resulted in Quando’s teeth
puncturing the skin on various parts of Smith’s body. As well,
Smith stated in his deposition that the effect of the pepper
  6
    There is a question of fact which only a jury can resolve as to whether
the police canine initially attacked Smith even prior to Officer Quinn’s
instruction. In his deposition, Smith stated that the dog began attacking
him when he was slammed against the door by Officers Medina, Miller,
and Reinbolt. However, defendants claim in their declarations that Quando
was ordered to attack only after the officers wrestled Smith to the ground.
We leave the ultimate significance of this factual disagreement to the par-
ties to resolve at trial; it is of no consequence for our purposes here. Either
way, summary judgment was not proper.
248                 SMITH v. CITY OF HEMET
spray was exacerbated because, although the officers flushed
out Smith’s eyes after he was arrested, they did not flush out
the pepper spray in the wounds from the dog bites on his
neck, arm, shoulder, back, and buttock.

   [10] Next, it is necessary to apply the Graham criteria,
beginning with the “most important single element of the
three specified factors: whether the suspect poses an immedi-
ate threat to the safety of the officers or others.” Id. The
record does not reveal any basis for believing that Smith was
armed or that he posed an immediate threat to anyone’s
safety. Smith’s wife had informed the police that he had no
guns or weapons in the house and that he was in his pajamas.
Except for the time when he reentered his home, he was in
plain view of the officers. Although he initially refused to
comply with Officer Reinbolt’s instruction to remove his
hands from his pajama pockets, he ultimately did so before
the officers used any physical force to restrain him. There is
no indication in the record that after Smith removed his hands
from his pockets there was any reason to believe that he pos-
sessed any weapon or posed any immediate threat to the
safety of the officers or others. In fact, the defendants concede
in their depositions that Smith did not pose a significant threat
of death or serious injury. One of the defendant officers, Offi-
cer Quinn, stated in his declaration that Smith made no
threats, verbal or physical, toward him or anyone else.
Although it is true that until both of his arms were hand-
cuffed, Smith continued to shield one arm from the officers
and their dog and to shout expletives at the officers, consider-
ing the evidence in the light most favorable to him, a rational
jury could very well find that he did not, at any time, pose a
danger to the officers or others.

  [11] The second Graham factor we consider is the severity
of the crime at issue. Graham, 490 U.S. at 396. On the eve-
ning of the incident, Smith’s wife called 911 to report that her
husband “was hitting her and/or was physical with her,” that
he had grabbed her breast very hard. Although we are mindful
                     SMITH v. CITY OF HEMET                    249
of the seriousness and reprehensibility of domestic abuse, the
circumstances are not such in this case as to warrant the con-
clusion that Smith was a particularly dangerous criminal or
that his offense was especially egregious. When Officer Rein-
bolt arrived, Smith was standing on his porch alone and sepa-
rated from his wife. He had no guns or other weapons in his
possession and there were none in the house — and he was
clad in his pajamas. Under these circumstances, the nature of
the crime at issue provides little, if any, basis for the officers’
use of physical force.

   [12] The third Graham factor is whether the individual
actively resisted arrest or attempted to evade arrest by flight.
Id. Smith continually ignored the officers’ requests to remove
his hands from his pajamas and to place them on his head. He
also reentered his home for a brief period before returning to
the porch. However, Smith did not attempt to run from the
officers. To the extent that he physically resisted arrest, defen-
dants acknowledge that it lasted for only a brief time.
Although Smith refused to place both his arms behind his
back, he did not attack the officers or their dog. In all, it does
not appear that Smith’s resistance was particularly bellicose
or that he showed any signs of fleeing the area.

   As we have previously explained, an additional factor that
we may consider in our Graham analysis is the availability of
alternative methods of capturing or subduing a suspect. Chew
v. Gates, 27 F.3d at 1441 n.5. Smith argues that the officers’
conduct violated applicable police standards and that there
were alternative techniques available for subduing him that
presented a lesser threat of death or serious injury. Smith
offered an expert declaration on the training of police dogs
and police dog handlers. Discussing whether the officers’
conduct comported with law enforcement standards, the
expert relied upon California’s Peace Officer Standards and
Training, which are applicable to all state police officers and
are a part of Department policy. He concluded that the offi-
cers could and should have used control holds to complete the
250                 SMITH v. CITY OF HEMET
arrest rather than to sic Quando on him once they had him
restrained on the ground. See also Hemet Chief of Police,
“Use of Force,” Gen. Order No. U-102 (discussing “profes-
sional presence,” “compliance techniques,” and other “inter-
mediate force” less likely to cause death or serious injury). A
rational jury could rely upon such evidence in assessing
whether the officers’ use of force was unreasonable. See
Larez v. City of Los Angeles, 946 F.2d 630, 635 (9th Cir.
1991) (as amended) (finding that testimony of “an expert on
proper police procedures and policies” was relevant and
admissible); Davis v. Mason County, 927 F.2d 1473, 1484-85
(9th Cir. 1991) (as amended) (testimony of plaintiffs’ police
practices expert that officers violated law enforcement stan-
dards properly received).

   [13] Considering the severity and extent of the force used,
the three basic Graham factors, and the availability of other
means of accomplishing the arrest, it is evident that the ques-
tion whether the force used here was reasonable is a matter
that cannot be resolved in favor of the defendants on summary
judgment.

   [14] Although only Smith’s account of the facts matters for
our analysis, on both accounts of the arrest, Smith did not
attack the officers; indeed at no time did he even threaten to
attack any of them, or their dog. Smith asserts that his failure
to uncurl his arm from under his body was a reasonable effort
to protect himself against an unreasonably excessive use of
deadly force in the form of Quando, a police canine. Even
excluding the question of whether the police dog constituted
deadly force, a jury well could find that, given the circum-
stances, the totality of force used — four blasts of pepper
spray, slamming Smith down onto the porch, dragging him
off the porch face down, ordering the canine to attack him
three times, and the resultant dog bites and physical assaults
on his body — was unreasonable. We have indeed held on
past occasions that the use of lesser force could be unreason-
able in the particular circumstances. See Santos, 287 F.3d at
                        SMITH v. CITY OF HEMET                         251
853-54 (shoving can amount to excessive force when it is
unreasonable); Headwaters Forest Defense v. County of Hum-
boldt, 276 F.3d 1125, 1130-31 (9th Cir. 2002) (holding that
the use of pepper spray on non-violent protestors was exces-
sive force); Watkins v. City of Oakland, 145 F.3d 1087, 1093
(9th Cir. 1998) (holding that deputies’ use of a police dog is
subject to excessive force analysis); Mendoza v. Block, 27
F.3d 1357, 1362 (9th Cir. 1994) (same). In sum, Smith has
submitted a substantial amount of evidence from which a rea-
sonable jury could conclude that the force used against him
was excessive.7

  C.    Deadly Force

   [15] Smith alleges that the defendants unnecessarily and
unreasonably used not only excessive force against him, but
also deadly force. He asserts that the latter type of force was
used when Officer Quinn ordered the police canine to attack
him. In Tennessee v. Garner, 471 U.S. 1 (1985), the Supreme
Court held that a police officer may not use deadly force “un-
less it is necessary to prevent escape and the officer has prob-
able cause to believe that the suspect poses a significant threat
of death or serious physical injury to the officer or others.” Id.
   7
     Defendants suggest an additional ground upon which the order for
summary judgment could be affirmed: qualified immunity. Whether the
officers are entitled to qualified immunity may depend in large part on fac-
tual determinations the jury will be required to make. Certainly, the use
of a police canine and pepper spray could, under clearly established law,
have constituted the use of excessive force in some circumstances, in
which case the officers would have been put on notice that their conduct
would be unconstitutional. See Mendoza v. Block, 27 F.3d 1357, 1362 (9th
Cir. 1994) (“[N]o particularized case law is necessary for a deputy to
know that excessive force has been used when a deputy sics a canine on
a handcuffed arrestee who has fully surrendered and is completely under
control.”); see also LaLonde v. City of Riverside, 204 F.3d 947, 961 (9th
Cir. 2000) (applying the Mendoza rule to the use of pepper spray by police
officers). We choose, however, not to resolve the issue of qualified immu-
nity on this appeal, preferring to allow the district court to consider that
question initially.
252                  SMITH v. CITY OF HEMET
at 3. Thus, where a suspect threatens an officer with a weapon
such as a gun or a knife, the officer is justified in using deadly
force. See, e.g., Billington v. Smith, 292 F.3d 1177, 1185 (9th
Cir. 2002) (holding that deadly force was justified where a
suspect violently resisted arrest, physically attacked the offi-
cer, and grabbed the officer’s gun); Reynolds v. County of San
Diego, 84 F.3d 1162, 1168 (9th Cir. 1996) (holding that
deadly force was reasonable where a suspect, who had been
behaving erratically, swung a knife at an officer); Scott v.
Henrich, 39 F.3d 912, 914-15 (9th Cir. 1994) (suggesting that
the use of deadly force is objectively reasonable where a sus-
pect points a gun at officers); Garcia v. United States, 826
F.2d 806, 812 (9th Cir. 1987) (holding that deadly force was
reasonable where the plaintiff attacked a border patrol agent
with a rock and stick).

   The issue presented by Smith is initially whether the use of
Quando to subdue him amounted to an unreasonable use of
deadly force; however, as no party to this case asserts that the
use of deadly force would have been appropriate here, the
issue is actually only whether the use of Quando constituted
deadly force. As we are reviewing an order of summary judg-
ment, all that we must decide is whether the use of Quando
to subdue Smith could have amounted to deadly force under
the facts of this case.

   [16] Unfortunately, the Supreme Court did not explicitly
define what constitutes deadly force in Garner, and the defini-
tion that we have previously announced is incorrect. In Vera
Cruz v. City of Escondido, 139 F.3d 659, 663 (9th Cir. 1998)
(as amended), this court considered the meaning of the term.
In that case, we held that deadly force means “force reason-
ably likely to kill.” Id. at 660. In doing so, we expressly
refused to add “or result in serious bodily injury,” a phrase
that appears in the definition employed by all other circuits
that have defined the term. Id. at 661-62. Similarly, we delib-
erately chose “reasonably likely” rather than “creates a sub-
stantial risk,” the phrase employed by all other courts of
                     SMITH v. CITY OF HEMET                   253
appeals to have confronted the question. Id. at 662-63. The
definition the other circuits have adopted and that we adopt
today is identical in most respects to that set forth in the
Model Penal Code. See Model Penal Code § 3.11(2) (1962).

   In Vera Cruz, we reviewed the Model Penal Code defini-
tion of deadly force and rejected it for three reasons. 139 F.3d
at 662. First, we stated that the Model Penal Code definition,
which governs criminal liability, serves a different purpose
than the Garner standard which sets the boundaries of reason-
able police conduct under the Constitution. Id. We were con-
cerned that imposing personal liability on the basis of the
Model Penal Code definition would “make police timid and
deter activities necessary for our protection.” Id. Second, we
said that the Model Penal Code definition includes a subjec-
tive component, and that such a component constitutes “an
impermissible consideration in the Fourth Amendment con-
text,” the scope of which is limited to the objective reason-
ableness test adopted in Graham. Id. Third, we feared that the
“disjunctive ‘or’ would turn the deadly force rule into a ‘seri-
ous bodily injury’ rule, rendering Garner’s distinction
between ordinary force and deadly force a virtual nullity.” Id.

   Smith asks us to reconsider our Vera Cruz ruling, and
points out that seven circuits now employ the definition of
“deadly force” that we rejected. Indeed, we stand alone in
adopting a definition of the term that upon reconsideration we
find to be unduly restrictive. See, e.g., Gutierrez v. City of San
Antonio, 139 F.3d 441, 446 (5th Cir. 1998) (deadly force
“creates a substantial risk of death or serious bodily injury”);
Estate of Phillips v. City of Milwaukee, 123 F.3d 586, 593
(7th Cir. 1997) (same); In re City of Philadelphia Litigation,
49 F.3d 945, 966 (3rd Cir. 1995) (adopting the Model Penal
Code definition); Ryder v. City of Topeka, 814 F.2d 1412,
1416 n.11 (10th Cir. 1987) (same); Robinette v. Barnes, 854
F.2d 909, 912 (6th Cir. 1988) (same); Pruitt v. City of Mont-
gomery, 771 F.2d 1475, 1479 n.10 (11th Cir. 1985) (same);
Mattis v. Schnarr, 547 F.2d 1007, 1009 n.2 (8th Cir. 1976)
254                     SMITH v. CITY OF HEMET
(en banc), vacated as moot sub nom., Ashcroft v. Mattis, 431
U.S. 171 (1977) (same). We recognize the importance of con-
sistency across jurisdictions, and we take this opportunity to
bring our circuit into conformity with the other circuits and to
adopt a definition that is more compatible with the practicali-
ties and realities of today’s physical confrontations.8

   In Vera Cruz, we were concerned that the definition we
rejected would “make police timid and deter activities neces-
sary for our protection” and “would turn the deadly force rule
into a ‘serious bodily injury’ rule, rendering Garner’s distinc-
tion between ordinary force and deadly force a virtual nulli-
ty.” 139 F.3d at 662. However, our concerns have turned out
to be overstated, and indeed unfounded. A definition includ-
ing “a substantial risk of serious bodily injury” is used by
police in all fifty states, the District of Columbia, and Puerto
Rico, and such use has not resulted in the difficulties we
feared. Equally important for this case, it is the definition that
California and the Hemet Police Department use. Adopting
the common definition of deadly force should impose no
more of a burden on law enforcement officials than already
exists throughout the nation — a burden that most law
enforcement officials have voluntarily chosen to impose upon
themselves. See Garner, 471 U.S. at 18-20 (discussing the
importance of actual police department polices when adopting
a Fourth Amendment rule).

  The Vera Cruz court also criticized the Model Penal Code
definition because it contained an alternative subjective com-
ponent in addition to the primary objective one. Like the Vera
Cruz court, we attribute the inclusion of an alternative subjec-
  8
   In a footnote, the Eighth Circuit noted the conflict between Vera Cruz
and the law in other circuits and indicated its approval of the Vera Cruz
approach. See Kuha v. City of Minnetonka, 365 F.3d 590, 598 n.3 (8th Cir.
2004). Nevertheless, it applied the Model Penal Code definition, undoubt-
edly because that is the definition the court adopted in its en banc opinion
in Mattis, 547 F.2d at 1009 n.2.
                    SMITH v. CITY OF HEMET                 255
tive component in the Model Penal Code definition to the fact
that the Model Penal Code is primarily designed to govern
criminal liability. However, the definition of deadly force
used in the other circuits in § 1983 cases, while frequently
labeled the Model Penal Code definition, is designed for use
in implementing the Fourth Amendment and necessarily dif-
fers in one minor respect from the Model Penal Code’s defini-
tion. For Fourth Amendment purposes, the objective part of
the test must be employed. See Graham, 490 U.S. at 397. In
short, courts do not use the subjective alternative when they
apply the “deadly force” test in § 1983 cases. We simply look
to the objective part of the test: whether the force employed
“creates a substantial risk of causing death or serious bodily
injury.” That the definition courts describe varies to this
extent from the full Model Penal Code version is no reason
for us not to employ a test that is now universally accepted
throughout the country.

   [17] Furthermore, the fact that we are applying a definition
of deadly force to defendant police officers that is similar to
the definition we use when evaluating the force used by crimi-
nal defendants need not concern us. The Supreme Court and
our own court have often referred to the Model Penal Code
as persuasive authority in interpreting the Constitution. See,
e.g., United States v. U.S. Gypsum Co., 438 U.S. 422, 444
(1978) (relying on a Model Penal Code definition, the Court
stated, “[t]he ALI Model Penal Code is one source of guid-
ance upon which the Court has relied to illuminate questions
of this type”). Both the police we honor and the criminals we
prosecute are subject to the same binding Constitution. We
refuse to fabricate a constitutional distinction between police
and civilians that, far from being based on any constitutional
explanation, has been overwhelmingly rejected by judges and
law enforcement officials nationwide. We erred in Vera Cruz
when we rejected the definition that finds its origin in the
Model Penal Code, and we now take this opportunity to over-
rule that holding and adopt the definition of deadly force used
by the other circuit courts throughout the nation.
256                    SMITH v. CITY OF HEMET
   We need not here determine whether the use of a police
dog to subdue a suspect constitutes deadly force generally or
the circumstances under which such use might constitute such
force. Having announced the definition of “deadly force” we
leave to the district court the first opportunity to apply the
concept to the facts of this case. We note only that while we
have not in any of our prior cases found that the use of police
dogs constituted deadly force,9 we have never stated that the
use of such dogs cannot constitute such force. Cf. Robinette
v. Barnes, 854 F.2d 909, 913 (6th Cir. 1988) (although failing
to find that the police dog in that case constituted deadly
force, the court stated that “an officer’s intent in using a
police dog, or the use of an improperly trained dog, could
transform the use of the dog into deadly force”). Compare
Kuha, 365 F.3d at 598 n.3 (“[T]he use of a properly trained
police dog in the course of apprehending a suspect does not
constitute deadly force”).

III.   CONCLUSION

   For the foregoing reasons, we reverse the district court’s
grant of summary judgment. On the record before us, we can-
not conclude that Smith’s § 1983 action is barred by Heck; his
successful prosecution of this action will not necessarily
impugn his earlier conviction. Further, considering the evi-
dence in the light most favorable to Smith, a reasonable jury
could find that the defendants used excessive force. Finally,
we overrule Vera Cruz and adopt the universally accepted
definition of the term deadly force; we do not, however,
decide whether the officers used such force here, but leave
that question for initial consideration following remand. The
grant of defendants’ motion for summary judgment is
REVERSED AND REMANDED.
  9
    Of course, we have heretofore applied the unduly stringent Vera Cruz
test which we overrule today.
                    SMITH v. CITY OF HEMET                   257
SILVERMAN, Circuit Judge, with whom KLEINFELD and
CALLAHAN, Circuit Judges, join, dissenting:

   By analyzing separately every single second of the approxi-
mately five-minute encounter between Smith and the Hemet
police, the majority misses the forest for the trees. Here’s the
forest: From the moment the police arrived and told Smith to
remove his hands from his pockets, until the police finally
handcuffed him, the police were trying to subdue and detain
Smith, and he resisted. The undisputed facts show that this
was one continuous, uninterrupted sequence of events. The
majority gets off the track by focusing on how many different
ways Smith might have violated the law after the police
arrived at the scene. It does not matter. What matters is that
Smith’s actions, however numerous, culminated in one arrest.
He was then convicted, by guilty plea, of resisting an officer.
In California, a conviction for resisting arrest establishes that
the force used to effect the arrest was not excessive. People
v. White, 101 Cal. App. 3d 161, 164 (1980). That is why
Smith’s § 1983 excessive force lawsuit is barred by Heck. If
his lawsuit were successful, the civil judgment in his favor
would be inconsistent with his criminal conviction.

   The contrast between this case and Sanford v. Motts, 258
F.3d 1117 (9th Cir. 2001), illustrates the point. In Sanford, the
plaintiff had already been arrested and handcuffed when she
was allegedly punched in the face by Officer Motts. Id. at
1118. We held: “Excessive force used after an arrest is made
does not destroy the lawfulness of the arrest” for a violation
of California Penal Code § 148. Id. at 1120 (emphasis added).
Because a successful § 1983 claim for events that took place
subsequent to her arrest could in no way imply the invalidity
of her § 148 conviction, Sanford’s conviction for violating
§ 148 did not trigger the Heck v. Humphrey bar to her § 1983
lawsuit.

  This is in sharp contrast to the present case where the alleg-
edly excessive force was employed while Smith was being
258                 SMITH v. CITY OF HEMET
arrested. It does not matter how many times Smith refused to
take his hands out of his pockets or to step off the porch. It
does not matter how many times he refused to turn around or
how many times he may have flailed his arms as the police
tried to handcuff him. The undisputed facts show that “there
was no break,” to use the words of the Cunningham court,
between Smith’s disobedience and the police response that
culminated in his arrest. See Cunningham v. Gates, 312 F.3d
1148, 1155 (9th Cir. 2002). Smith’s “provocative act” and
“the police response he claims was excessive . . . are so
closely interrelated, [Smith’s] conviction forecloses his exces-
sive force claim.” Id.

   This is an issue of California law, and in a case with facts
very close to Smith’s, the California Court of Appeal con-
cluded that Heck barred a § 1983 suit where the plaintiff had
been convicted of a § 148 violation involving multiple acts of
resistance. Susag v. City of Lake Forest, 94 Cal. App. 4th
1401, 1405-06 (2002). In Susag, a deputy sheriff noticed a car
with an expired registration and called for a tow truck. Id. at
1406. Although Susag initially denied owning the car, after it
was hitched to the tow truck he got into the driver’s seat. He
was ordered out of the car “several times” but refused to get
out — one act of resistance. He started the car and accelerated
the engine — another act of resistance. The deputy then
pepper-sprayed Susag and again ordered him to get out of the
car, which Susag refused — another act of resistance. Susag
then pushed one of the deputies — yet another act of resis-
tance — and struggled with the deputies when they tried to
handcuff him — a final act of resistance. A jury found him
guilty of one count of violating § 148. Susag and his family
subsequently brought a § 1983 suit alleging excessive force
and other claims against the officers involved. Id. at 1407.
The trial court granted summary judgment to the officers on
the grounds that Susag’s suit was barred by Heck. Id.

  The California Court of Appeal affirmed. In doing so, the
court rejected Susag’s argument that the Heck bar did not
                    SMITH v. CITY OF HEMET                  259
apply when it was unclear which act of acts of resistance
formed the basis of the Susag’s § 148 conviction.

       [Susag] contends the record in his criminal case,
    which is not before us, does not reflect which acts
    formed the basis for his conviction, and as a result
    he can pursue his section 1983 action for the offi-
    cer’s use of pepper spray before he was ultimately
    subdued and placed in the patrol car. We disagree
    and conclude that any claim of excessive force based
    on discrete acts that occurred immediately preceding
    [Susag’s] arrest is barred by the Supreme Court’s
    holding in Heck v. Humphrey, [citation omitted],
    since a finding in his favor would necessarily imply
    the invalidity of his conviction under Penal Code
    section 148, subdivision (a).

Id. at 1409-10. In addition, the Court of Appeal contrasted
Susag’s situation to the one presented in Sanford, noting that,
“[Susag] has alleged no claims of excessive force that took
place after he was finally subdued and placed in the patrol
car.” Id. at 1410. (emphasis added.)

   The majority argues that Smith’s conviction might have
been based only on his conduct while on the porch, before any
force was used; ergo, the conviction fails to establish the law-
fulness of the force employed from that point on. This argu-
ment is foreclosed by Susag. In addition, under California’s
continuous course of conduct rule, Smith’s conviction for
resisting arrest necessarily includes all of the acts that com-
prise a continuous or indivisible transaction. People v.
McFarland, 58 Cal. 2d 748, 760 (1962); People v. Simon, 21
Cal. App. 88, 90 (1913). The major considerations in deter-
mining whether similar acts are part of the same transaction
are the amount of time elapsed between the discrete incidents,
and whether there was any break in the criminal activity. See
People v. Jefferson, 123 Cal. App. 2d 219, 221 (1954) (hold-
ing that two distinct acts of assault with a deadly weapon tak-
260                     SMITH v. CITY OF HEMET
ing place within a fifteen minute period “were a part of the
same incident, and they could not reasonably be held to con-
stitute two separate offenses, each complete in itself, and each
of which would require a separate charge”); People v. Mota,
115 Cal. App. 3d 227, 233 (1981). Had discrete acts of resis-
tance taken place over the course of an hour rather than five
minutes, they might not have constituted the same offense.
See People v. Moreno, 32 Cal. App. 3d Supp. 1, 8-9 (1973)
(holding two instances of violating § 148 were two offenses
because thirty minutes elapsed between the two incidents and
“[i]n the intervening space of time the defendant had com-
pletely calmed down, and ceased his criminal activity”). Here,
however, it is undisputed that Smith’s encounter with the
Hemet police took place during one continuous, uninterrupted
five-minute period.1

   The continuous course of conduct rule is for the protection
of criminal defendants like Smith. The rule bars the state from
prosecuting a defendant again for acts that were part and par-
cel of the same continuous transaction. It is this rule that now
prevents the State of California from charging Smith anew for
the conduct occurring after he first refused to take his hands
out of his pockets. And again for refusing to put his hands on
his head. And again for not turning around. And again for not
coming off the porch. And again for refusing to submit to
handcuffing. Smith was charged and convicted of one count
of resisting an officer that necessarily encompassed the entire
sequence of events leading up to his arrest. If, for whatever
reason, Smith wanted to waive the protection of that rule and
plead guilty to one identified act, leaving himself open to pos-
sible prosecution for acts that otherwise would be dead letters,
  1
    The majority says that the encounter lasted “substantially longer than
five minutes.” I guess that depends on what “substantially longer” means.
According to Smith’s brief, Officer Reinbolt, the first officer to respond,
started the tape recorder when he arrived at the scene. The transcript of the
recording shows that the tape was turned off after Smith had been hand-
cuffed and was having his eyes washed out with water from a garden hose.
From start to finish, the recording lasted five minutes and thirteen seconds.
                         SMITH v. CITY OF HEMET                             261
it was incumbent upon him to say so. See Susag, supra, at
1410 (“Once the defendants met their burden of proving
[Susag] had an undisturbed conviction under Penal Code sec-
tion 148, subdivision (a), the burden shifted to him to provide
evidence of excessive force that would not necessarily imply
the invalidity of his conviction.”).

   The majority’s citation of cases from other circuits reveals
its misunderstanding of how state criminal law affects the
Heck analysis. The question in this case is what a California
resisting arrest conviction establishes. The citation to Robin-
son v. Doe, 272 F.3d 921 (7th Cir. 2001), and other federal
cases arising from other states, where the criminal law is dif-
ferent, sheds no light on the matter. In Illinois, for example,
excessive force does not render an arrest illegal. Id. at 923.
(“Police might well use excessive force in effecting a per-
fectly lawful arrest.”). As we have seen, the law is otherwise
in California.2

   To summarize: If Smith had been gratuitously sprayed with
mace or bitten by the dog after he had been arrested, his con-
viction for resisting an officer would not have barred his
§ 1983 lawsuit. However, everything Smith complains of took
place in the course of arresting him. The district court cor-
rectly ruled that Smith’s excessive force lawsuit was barred
by Heck v. Humphrey, and for that reason, I respectfully dissent.3
  2
     It is also the rule in California that multiple acts of resistance culminat-
ing in an arrest for resisting an officer are subsumed in one California
Penal Code § 148 conviction. Susag, 94 Cal. App. 4th at 1409-10. The
majority may dislike that rule, but is not free to substitute its own view of
California state law for that of the California Court of Appeal. See Mendez
v. Small, 298 F.3d 1154, 1158 (9th Cir. 2002).
   3
     Because the lawsuit is Heck-barred, it is unnecessary to reach, as the
majority does, the question of whether the force used to arrest Smith was
excessive or whether the use of the dog constituted deadly force. How-
ever, in the interest of the completeness of the story, it should be noted
that prior to this incident, Quando’s teeth had been capped and were inca-
pable of inflicting deep puncture wounds. The bite wounds sustained by
Smith were superficial and were cleaned at the scene by paramedics.
Smith was taken to a hospital immediately after his arrest, before being
booked into jail. He was evaluated at the hospital but required no further
treatment of any sort.
