IN THE SUPREME COURT OF THE STATE OF CALIFORNIA STEVEN YOUNT. Plaintiff and Appellant, vs. CITY OF SACRAMENTO, et. al. Defendants and Respondents

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1 No. S IN THE SUPREME COURT OF THE STATE OF CALIFORNIA STEVEN YOUNT Plaintiff and Appellant, vs. CITY OF SACRAMENTO, et. al. Defendants and Respondents APPLICATION FOR LEAVE TO FILE AMICUS CURIAE BRIEF IN SUPPORT OF RESPONDENT CITY OF SACRAMENTO and AMICUS CURIAE BRIEF Of LEAGUE OF CALIFORNIA CITIES IN SUPPORT OF RESPONDENT CITY OF SACRAMENTO After a Decision By the Court of Appeal Third Appellate District Case No. C Alan M. Cohen, SBN: MEYERS, NAVE, RIBACK, SILVER & WILSON th Street, Suite 1500 Oakland, CA Telephone: (510) Facsimile: (510) Attorneys for League of California Cities

2 Pursuant to California Rule of Court 29.1(f), the League of California Cities ( League ) seeks this Court s permission to file the attached Amicus Curiae Brief in support of Defendants and Respondents City Of Sacramento And Officer Thomas Shrum. The League is an association of all 478 California cities united in promoting the general welfare of cities and their citizens, which appears frequently before the courts of appeal on matters affecting local government. The League is advised by a Legal Advocacy Committee, which is comprised of 24 city attorneys representing all 16 divisions of the League from all parts of the state. The committee monitors appellate litigation affecting municipalities and identifies those that are of statewide significance. The Committee so identified this case and the League determined that all California cities have a substantial interest in the resolution of the issues raised by this case. Amicus Curiae respectfully urge this Court to reverse the decision of the Court of Appeal because it undermines and effectively eliminates the principal that no claim under 42 U.S.C 1983 may proceed where a decision in the claimants favor would undermine or impugn the validity of a state court criminal conviction. (See, Heck v. Humphrey (1996) 512 U.S. 47.) ( Heck ) The Heck decision prevents a person convicted of interfering with or obstructing a peace officer (Penal Code section 148) from subsequently seeking damages against that officer by claiming the officer used excessive force during the course of subduing the suspect. This is because the lawfulness of the peace officer s conduct is an essential element of the offense of resisting or obstructing a peace officer under Penal Code section 148. A peace officer who uses excessive force on a suspect is not acting lawfully. Thus, a person convicted of violating Penal Code section 148 cannot later sue that officer for excessive force without undermining the validity of that conviction. The conviction and not the means by which it was obtained is all that matters. 1

3 Relying on the flawed analysis of the Court of Appeal for the Ninth Circuit, the Third Appellate District concluded that the means for obtaining the conviction and not the actual conviction are what really must be analyzed. Under this approach, a defendant who pleas no contest to violating Penal Code 148 may bring a subsequent lawsuit for excessive force where the criminal court s records do not indicate which of the defendants discrete acts supported the conviction. The decision neither comports with the way police officers act in the field nor does it comport with the way California s criminal justice system operates. The cities whose interests are represented and protected by the League will be significantly affected by the unworkable test adopted by the Third Appellate District. If this Court allows the decision to stand, it will increase the already heavy financial burden on local government caused by frivolous litigation. California s already under-funded and overworked courts will be faced with a heavier docket, while the public s respect for our judicial system will be diminished. The League believes that the Third Appellate District s decision unnecessarily conflicts with the decisions of its sister courts, amounts to bad public policy, and we urge the Court to reverse this erroneous decision. The League's counsel has reviewed the briefs on file in this case, and do not seek to duplicate or respond to the arguments set forth in these briefs. Rather, the League respectfully submits that there is a need for additional briefing on the public policy implications of allowing a person who enters a no contest plea to Penal Code section 148 and who engaged in a continuous course of conduct involving multiple acts of obstruction, any one of which could have supported the conviction, to pursue a civil rights claim alleging excessive force against the officers he was convicted of obstructing. The League believes that the unique perspective it can provide via the attached Amicus Curiae Brief will assist the Court in rendering a sound decision. 2

4 Dated: March 26, 2012 Respectfully submitted, MEYERS, NAVE, RIBACK, SILVER & WILSON By: Alan M. Cohen Attorneys for Amicus Curiae League of California Cities 3

5 I. INTRODUCTION Section 1983 lawsuits are intended to address much weightier concerns than the routine civil lawsuit. As the nation s highest court has often stated, civil rights lawsuits are intended to deal with the large concerns of the governors and the governed. (Paul v. Davis (1976), 424 U.S. 693, 701.) Recognizing that more often than not a Section 1983 plaintiff s lawsuit derives from the claimant s disagreement with a police officer, the United States Supreme Court has consistently counseled restraint in expanding the scope of peace officer liability. As the Court s decisions reflect, the rules of society cannot always be enforced with absolute precision. Law enforcement officers must be given discretion in order to perform their important public responsibilities. Weaved into the very fabric of our system of justice is the recognition that police officers must make decisions under tense and rapidly evolving circumstances. Like prison officials facing a riot, the police on an occasion calling for fast action have obligations that tend to tug against each other. Their duty is to restore and maintain lawful order, while not exacerbating disorder more than necessary to do their jobs. They are supposed to act decisively and to show restraint at the same moment, and their decisions have to be made in haste, under pressure and without the luxury of a second chance. (County of Sacramento v. Lewis (1998) 523 U.S. 833, 853.) This policy against second-guessing the actions of police officers while in the field works in tandem with the deference afforded to the final decisions of a state s criminal courts. Criminal convictions, whether they be for a misdemeanor or a felony; whether they derived from a plea agreement or a jury trial are not lightly impugned. Respect for the finality of state court judgments ordinarily prevents a convicted person from collaterally attacking that judgment by suing the police officer whose lawful arrest underlies that 4

6 conviction. The decision by the Third Appellate District in this case undermines both of these important policies and increases the already untenable litigation burdens imposed on California s public entities. By allowing a civil rights lawsuit against the police officer whose actions were the foundation for the claimant s obstructing a peace officer conviction, the Court of Appeal has eviscerated the protections of Heck v. Humphrey (1994) 512 U.S Defendants and respondents have explained how the Court of Appeal s decision undermines Heck and Amicus will not repeat that analysis. Instead, Amicus, as representative of the State of California s 478 cities, wishes to provide its unique perspective on the impact this decision will have on local government and the judicial system. First, we will address the incongruity of the Court of Appeals reliance on the United States District Court of Appeals for the Ninth Circuit s decision in Smith v. City of Hemet (9 th Cir. 2005) 394 F. 3d 689. Adopting Smith and disagreeing with the decision of the California Court of Appeal in Susag v. Lake Forest (2002) 94 Cal.App.4 th 1401, the lower court found that where a claim of excessive force is based on several acts occurring prior to the person s arrest for obstructing a police officer; and where the arrestee pleads no contest to that charge; where the criminal court accepts the plea; but the record is silent on which act the defendant plead no contest to, the claimant may pursue his civil rights claim. We submit that in the absence of clear direction from the United States Supreme Court, the decisions of California s courts on the collateral effect of a state law plea to a state law crime carry greater weight than those of this jurisdiction s lower federal courts. Secondly, we wish to point out the impact the decision will have on local government if this Court adopts the Third Appellate District s analysis as the law of this state. Local government already faces a significant burden in defending lawsuits brought by individuals dissatisfied with their interaction 5

7 with local law enforcement. The strain such lawsuits place on California s municipalities is well documented. Adoption of the Third Appellate District s unworkable standard will only increase the flood of litigation already clogging our state s courts. Moreover, the decision fails to recognize how our criminal justice system works. The decision of the Court of Appeal is erroneous based on the fundamentally flawed conclusions of the Ninth Circuit Court of Appeal. This Court is the final arbiter of California law and it has not hesitated to disagree with the Ninth Circuit the interests of California s judicial system so require. It should not hesitate to do so again. II. ARGUMENT A. The Lower Court Placed Undue Reliance on a Decision By the Ninth Circuit Court of Appeal Which Departed From the Weight of California Precedent. The doctrine of Heck v. Humphrey (1994) 512 U.S. 477 prevents a person convicted of interfering with or obstructing a peace officer (Penal Code Section 148) from subsequently seeking damages against that officer by claiming the officer used excessive force during the course of subduing him. (Susag v. City of Lake Forest (2002) 94 Cal.App.4th 1401, 1406) This is because a prospective civil rights plaintiff cannot pursue a Section 1983 claim where the claim would necessarily imply the invalidity of [the plaintiff s] conviction." (Id at 1410.) As our courts have found, a peace officer who uses excessive force on a suspect is not acting lawfully. (Id., at 1409) Since no person can be convicted of obstructing a police officer under Penal Code section 148, if the police officer acted unlawfully, the convicted person cannot later sue that officer for excessive force without undermining the validity of that conviction. (Id. at 1410) It is the conviction and not the means by which it was obtained that matters. (People v. West (1979) 3 Cal.3d 595, 601). 6

8 In Smith v. City of Hemet ((9 th Cir. 2005) 394 F. 3d 689), however, an en banc panel of the Ninth Circuit Court of Appeal concluded that a guilty plea to misdemeanor obstruction of peace officer did not bar a subsequent excessive force lawsuit against the arresting officer, where the record was silent on which acts of obstruction or resistance formed the basis for the claimant s plea. (Smith, 394 F.3d at 699.) Analyzing Smith, in the case at bar, the Third Appellate District found that the Smith plaintiff disobeyed and resisted the officers a number of times before they...[attempted to].. take him into custody. (Yount v. City of Sacramento (2005) 35 Cal.Rptr.3d 563, 574, citing Smith, 394 F.3d at p. 697.) According to the lower court s interpretation, since any of these acts could support a 148(a)(1) conviction and the, criminal record did not rule out a conviction based on any of the other acts of delay or obstruction that took place prior to the resistance, which prompted the alleged use of excessive force, the Ninth Circuit properly concluded that Smith's federal section 1983 claim was not Heck-barred because its successful prosecution would not necessarily imply or demonstrate that the section 148 conviction was invalid. (Smith II, at p. 698.) (Yount, 35 Cal. 3d at 574) The lower court s adoption of Smith conflicts with the decision of several California Courts of Appeal. For example, in Susag v. City of Lake Forest, 94 Cal.App.4th 1401, 115, the Court of Appeal for the Fourth District held that the rationale of Heck and its progeny applied to an arrestee who committed multiple acts of obstruction prior to being brought under control. (Id.) The Susag Court found that the defendants met their burden of showing that the arrestee had an undisturbed conviction under Penal Code 148(a), the burden shifted to the arrestee to provide evidence of excessive force that would not necessarily imply the invalidity of his conviction. (Id.) As the Third District commented in the case at bar, Susag s analysis 7

9 differed from Smith s because Susag viewed a criminal conviction for Penal Code 148 as encompassing all of the possible acts of officer resistance, construing a silent record in favor of the police officer defendant. (Yount v. City of Sacramento (2005) 35 Cal.Rptr.3d 563, , 05 Cal. Daily Op. Serv. 9680) According to the Third District, Susag holds that any claim of excessive force based on discrete acts that occurred immediately preceding a suspect s arrest for obstructing a peace officer would be barred by Heck. As the Third District noted, the Smith Court explicitly disagreed with the Court of Appeal for the Fourth District s reasoning in Susag. (Yount, 35 Cal.Rptr.3d at , 05 Cal. Daily Op. Serv. 9680). Since defendants and respondents arguments address why Susag, rather than Smith s analytical approach is more consistent with California law, Amicus will not address that point. We do note, however, that the lower court appeared constrained to follow the Ninth Circuit s analytical approach instead of the analytical approach of its sister state court in California s Fourth Appellate District. (Id., at 574, ) (also disagreeing with the Fourth Appellate District s continuous course of conduct analysis in Troung v. Orange County Sherriff s Dept. (2005) 129 Cal.App.4 th 1423)). The Third District should not have felt so constrained. Because it is a federal statute, state courts exercise concurrent jurisdiction with federal courts in actions based on 42 U.S.C (Chavez v. Keat (1995) 34 Cal.App.4th 1406, ) While California s state courts are bound to follow controlling opinions of the United States Supreme Court on the application of federal law, they are not bound by the decisions of the lower federal courts. (Rohr Aircraft Corp. v. County of San Diego (1959) 51 Cal.2d 759; Yee v. City of Escondido (1990) 224 Cal.App.3d 1349, 1351) This Court has not hesitated to depart from the analytical framework of the lower federal courts on matters of constitutional jurisprudence. (See, 8

10 People v. Crittenden (1994) 9 Cal.4th 83, 120, fn. 3; People v. Burton (1989) 48 Cal.3d 843, 854 (finding analytical approach of the Ninth Circuit to be too rigid.) State courts are not bound by decisions of lower federal courts on federal questions even if they are in conflict with state decisions. (Gould v. People (1976) 56 Cal.App.3d 909, 918.) Decisions of the Ninth Circuit Court of Appeals are entitled to no more weight than the decisions of other lower federal courts even though California is in the Ninth Circuit. (Debtor Reorganizers, Inc. v. State Bd. of Equalization (1976) 58 Cal.App.3d 691, 696.) The Third District Court of Appeal misapplied Heck v. Humphrey (1996) 512 U.S. 477) to the facts of this case. The undisputed record indicates that the plaintiff engaged in a continuous course of resistance that did not end until Officer Shrum used what he believed was a taser to subdue him. Separating each and every act of resistance into a divisible chargeable act amounts to an exercise in minutiae, indicating a fundamental misunderstanding of the way our police and our criminal court s operate. It bears repeating that all claims that a law enforcement officer used excessive force in subduing a suspect are evaluated globally based on the totality of the circumstances known to the officer at the moment force was used. (Graham v. Connor (1989) 490 U.S. 386, ; Albright v. Oliver, (1994) 510 U.S. 266, 274).) When evaluating an officer s use of force, courts do not break each act of resistance into separate and divisible components. The actions of the officer or officers are compared with the sum total of the suspect s acts of resistance. Courts are not permitted to use slow-motion-replay to scrutinize the officers response. As the United States Supreme Court has often repeated, [T]he right to make an arrest or investigatory stop carries with it the right to use some degree of physical coercion or threat thereof to effect it... The reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of 9

11 hindsight The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments -- in circumstances that are tense, uncertain, and rapidly evolving -- about the amount of force that is necessary in a particular situation. [T]he reasonableness inquiry in an excessive force case is an objective one: the question is whether the officers actions are objectively reasonable in light of the facts and circumstances confronting them... (Graham v. Connor (1989) 490 U.S. 386, ) Under Graham, the court must avoid substituting its personal notions of proper police procedure for the instantaneous decision of the officer at the scene. We must never allow the theoretical, sanitized world of our imagination to replace the dangerous and complex world that policemen face every day. What constitutes reasonable action may seem quite different to someone facing a possible assailant than to someone analyzing the question at leisure. (Smith v. Freland, 954 F.2d 343, 347 (6th Cir. 1992), cert. denied, 504 U.S. 915 (1992).) The court s focus should be on the circumstances at the moment force was used and on the fact that officers on the beat are not often afforded the luxury of armchair reflection. (Elliott v. Leavitt, 99 F.3d 640, 642 (4th Cir. 1996), cert. denied, 521 U.S. 1120, 117 S.Ct (1997).) Armchair reflection, however, is exactly the type of analysis the lower court performed in this case. As the dissenting opinion in Smith v. City of Hemet aptly stated, By analyzing separately every single second of the approximately five-minute encounter between Smith and the Hemet police, the majority misses the forest for the trees. (Smith, 394 F.3d at 707.) B. The Lower Courts Decision Contradicts Sound Public Policy and Imposes an Undue Burden on Local Government. It cannot be disputed that the Heck doctrine prevents frivolous lawsuits 10

12 from further clogging our courts already overburdened dockets. The number of civil rights lawsuits imposed on local governments is increasing at a dramatic rate. (See, Bator, P. Mishkin, D. Shapiro & H. Wechsler, Hart and Wechsler's The Federal Courts and the Federal System 950 & n.3 (2d ed. 1973) [hereinafter cited as Hart & Wechsler]); See, e.g., McCormack, Federalism and Section 1983: Limitations on Judicial Enforcement of Constitutional Protections, 60 Va. L. Rev. 1, 1 n.2 (1974); Whitman, Constitutional Torts, 79 Mich. L. Rev. 5, 6, (1980).) The annual reports of the Administrative Office of the United States Courts also document the exponential growth in federal civil rights litigation under all federal statutes, not just (See Administrative Office of the U.S. Courts, 1983 Annual Report 134, table 25; 246, table C2; 249, table C3; Administrative Office of the U.S. Courts, 1980 Annual Report 243; 374, table C2; 377, table C3; Administrative Office of the U.S. Courts, 1971 Annual Report 263, table C2; Administrative Office of the U.S. Courts, 1960 Annual Report 232, table C2.) While no person should be prevented from redressing a legitimate constitutional injury, it is equally true that society should not be forced to bear the costs of frivolous and insubstantial claims. Almost twenty years ago, the United States Supreme Court found that, [t]he vindication of constitutional rights and the exposure of official misconduct are not the only concerns implicated by 1983 suits. No one suggests that all such suits are meritorious. Many are marginal and some are frivolous. Yet even when the risk of ultimate liability is negligible, the burden of defending such lawsuits is substantial. Counsel may be retained by the official, as well as the governmental entity. Preparation for trial, and the trial itself, will require the time and attention of the defendant officials, to the detriment of their public duties. In some cases litigation will extend over a period of years. This diversion of officials from their normal duties and the inevitable expense of defending every unjust claims is distinctly not in the public interest. (Town of Newton v. Rumery (1987) 480 U.S. 386, ) 11

13 To the extent the Heck doctrine protects local government from the burdens of defending such unjust and unmeritorious claims, it furthers this important public interest. The analytical exercise in minutiae employed by the lower court creates an exception that swallows the general rule. A person who decides not to contest a criminal charge through the use of a plea avoids the cost and risks of a public trial. That person should not be able to gain the benefit of his plea bargain yet later be allowed to collaterally impugn the conviction resulting from that bargain by seeking damages against the officer whose arrest underlies the factual basis for that plea. Here, the lower courts analysis tends to encourage that very result. Utilizing the analysis of the lower court, in order to avoid civil liability for the same conduct for which a criminal defendant has pled no contest, local government officials will need to ensure that a detailed factual basis for every plea must be placed in the criminal record. That is simply not going to occur. Expeditious disposition of criminal cases requires the use of plea bargains. Plea bargaining is a necessary element of the United States criminal justice system. Properly negotiated and structured, plea agreements in general benefit defendants, the government, and the judiciary. In addition, the public benefits from plea bargaining because plea agreements result in the conservation of public resources as well as the quick disposition of criminal cases. The judicial system could not function without the plea bargain. For example, observers agree that the majority of felony convictions in the United States are the result of guilty pleas arising out of negotiations or bargains between the prosecution and defense. Statistics in criminal justice are always suspect, but most of those knowledgeable in the field of criminal justice estimate that as many as ninety percent of felony convictions are a result of plea bargains. In the year 2000, the Bureau of Justice Statistics 12

14 estimates that there were approximately 924,700 felony convictions in state court. Of those convictions, approximately 879,200 resulted from plea bargains. (Felony Sentences in State Courts, 2000, Bureau of Justice Statistics.) Criminal defense counsel look upon plea negotiation as a necessary part of the criminal justice system. Prosecutors, the courts and the public receive a benefit by avoiding the costs of a lengthy trial. They also create opportunities for the redistribution of government resources. By obviating the need for trial, prosecutors and the courts have the opportunity to dispose of more cases. Police departments benefit because they have more discretion in distributing their resources when their officers are not occupied in court proceedings. If prosecutors and defendants are further constrained in the ability to negotiate a plea bargain, the system could grind to a halt. The benefit plea bargains have on the ability of the courts, local government, and police departments to redistribute limited resources will be diminished. A plea of no contest in a Penal Code 148 case will not remove a case from the judicial system. Instead, it will only divert the case to the civil system, negating the public benefit from these procedures. The vast majority of criminal prosecutions involve misdemeanors. California law specifies that it is not necessary for lengthy factual findings to be placed on the record for a plea agreement to be accepted. (Bradshaw v. Stumpf (2005) 545 U.S., 125 S.Ct 2398, 2405) Again, this allows for efficient and expeditious disposition of lesser crimes. (Mills v. Superior Court (1973) 10 Cal 3d 288, 302); In re Alvernaz (1992) 2 Cal. 4 th 924, 933). Requiring explicit factual findings in order to ensure that a case is not simply diverted to the civil justice system will inevitably chill the plea bargaining process, hampering the ability of prosecutors, criminal defense lawyers and the courts to quickly resolve Penal Code 148 cases. 13

15 The lower court s decision will also force local law enforcement to monitor the prosecution of Penal Code 148 cases much more closely. Local agencies do not have the resources to shadow the prosecution of these cases. Such an undertaking requires the commitment of substantial financial and personnel-related resources. Placing officers in the untenable position of attempting to influence the disposition of a criminal case is not only expensive, it is unwise. Prosecutors are required to exercise independent judgment and as a general rule ignore the civil consequences of their decisions. The decision sets up a potential conflict between local law enforcement and the public prosecutor. The defense will also face significant burdens as a result of the lower court s decision. While comprehensive factual findings obviate defenserelated concerns over additional charges against the accused, they also eliminate the ability of the accused to redress perceived constitutional injuries. The criminal defense attorney is obligated to protect his client s interests in the criminal case. The court s decision could require them to advise their clients on the civil consequences of his plea, something they are ill equipped to do. Similar to the additional resource-management problems to prosecutors, by effectively lengthening the process by which Penal Code 148 cases are resolved; the lower court s decision will also burden the distribution of criminal defense lawyers. Additionally, law enforcement will face additional burdens if the lower court s decision is adopted. Normally, a sufficient police report is one that outlines the facts which support the elements of the crime charged. The level of detail necessary to prepare an adequate police report does not mirror the level of detail necessary to convict. The lower court s decision, however, changes that procedure. To preserve the benefits to the public and to foreclose the possibility of a civil lawsuit, police officers will be required to prepare their reports in excruciating detail. This will require a substantial 14

16 time commitment further diverting law enforcement from their primary duty of crime prevention. As a practical matter, the consideration served by the plea bargain is better preserved by ensuring that all convictions have the same preclusive effect. One who pleads no contest to obstructing a peace officer should not be allowed to compromise the public benefit of the bargain by using the plea as both a shield and a sword. Yet that is what the Third District s decision allows. Preserving this consideration means requiring the accused to make a choice. The accused must decide whether to seek acquittal through trial thus preserving his right to civilly redress any constitutional injury or to negotiate a favorable plea bargain and potentially waive his right to civil redress. The accused must choose between the peace of mind a plea agreement provides or to challenge what they believe was an illegal act by the arresting officer. Only the accused can make this decision. Local government and the prosecution should not be compelled to prove that they secured the benefit of their bargain with the accused. The burden ought to be on the accused/plaintiff to show that his plea bargain preserved his right to challenge the police conduct at issue in his case. The party who knowingly and voluntarily pleads no contest to the criminal charge should have the burden of explaining in a subsequent civil suit his understanding of the plea agreement. It makes no sense to impose the burden of explaining the scope of the plea bargain to either the officer or the agency that employs him. Neither the officer nor his employer is ordinarily a participant in the plea bargaining process. Placing that burden on the officer and his public employer will force them to participate in the plea bargaining process, creating an additional and costly step in the criminal justice process. Finally, it is better public policy to ensure that all misdemeanor convictions are treated in a similar 15

17 fashion. A conviction after a plea ought not to be treated differently than a conviction after jury trial. Generally, a non-reviewing court does not disassemble another court s final judgment. In this case that is what occurred. The Third District, in essence, has created a process which will require civil courts to retry a previously decided criminal case in order to determine which of the many facts underlying a conviction was necessarily decided. Courts will be required to ascertain the intent of the accused, the prosecutor and the court in negotiating the plea agreement. A final judgment, however, ought to be final. The intent of the parties to a plea agreement is just as irrelevant as the intent of a jury. It is the conviction and only the conviction that is important. III. CONCLUSION Finality is critically important to our judicial system. A party to a judicial proceeding has but one opportunity to redress a perceived injury. Perhaps the principle was most aptly expressed as follows: Litigation is an expense to the public as well as to the parties.... In fact the expense to the public is often greater than it is to the parties... And when a cause has been once fairly tried, it ought not to be tried over again, even if the parties are willing. Such a course would be unjust to other parties whose causes might be thereby delayed. As well as a man who has a right to draw water at a public fountain, when he has filled his pitcher, claim the right to upset it, and to keep others waiting till had filled it over and over again. (Walker v. Chase, (1865) 53 Me 258, 260 (per. Walton J.)) Plaintiff and appellant Steven Yount has already had one opportunity to redress what he believes was misconduct by the defendants and respondents. He decided not to contest allegations that he obstructed or interfered with a peace officer in the course of his duties. He made a bargain. By making that bargain, he was relieved of the uncertainty and expense of a long, drawn out criminal case. The state, the public and the 16

18 local agency that arrested him was similarly relieved of the uncertainty and expense of a long, drawn out criminal case. The decision of the Court of Appeal for the Third District provides only one party to this agreement with the benefit of that bargain. By allowing this lawsuit to proceed, the lower court has essentially diverted Mr. Yount s criminal case to the civil system. The state, the public and the defendant-respondents have already devoted substantial resources to an issue which should have been resolved at the trial court level. Amicus respectfully asks this court not to extend the burden caused by the lower court s decision to every local agency in the state. Amicus asks this Court to reverse the Court of Appeal for the Third District s erroneous decision. Alan M. Cohen

19 TABLE OF CONTENTS Page(s) I. INTRODUCTION... 4 II. ARGUMENT... 6 A. The Lower Court Placed Undue Reliance on a Decision By the Ninth Circuit Court of Appeal Which Departed From the Weight of California Precedent B. The Lower Courts Decision Contradicts Sound Public Policy and Imposes an Undue Burden on Local Government III. CONCLUSION i

20 TABLE OF AUTHORITIES Page(s) Cases Albright v. Oliver (1994) 510 U.S Chavez v. Keat (1995) 34 Cal.App.4th County of Sacramento v. Lewis (1998) 523 U.S Debtor Reorganizers, Inc. v. State Bd. of Equalization (1976) 58 Cal.App.3d Elliott v. Leavitt, 99 F.3d 640, 642 (4th Cir. 1996) Gould v. People (1976) 56 Cal.App.3d Graham v. Connor (1989) 490 U.S Heck v. Humphrey (1996) 512 U.S passim Mills v. Superior Court (1973) 10 Cal.3d Paul v. Davis (1976) 424 U.S People v. Burton (1989) 48 Cal.3d People v. Crittenden (1994) 9 Cal.4th 83, People v. West (1979) 3 Cal.3d Rohr Aircraft Corp. v. County of San Diego (1959) 51 Cal.2d Smith v. City of Hemet (9 th Cir. 2005) 394 F. 3d , 7, 8, 11 Smith v. Freland (6th Cir. 1992) 954 F.2d Susag v. Lake Forest (2002) 94 Cal.App.4 th , 6, 8 ii

21 TABLE OF AUTHORITIES (Continued) Page(s) Town of Newton v. Rumery (1987) 480 U.S Troung v. Orange County Sherriff s Dept. (2005) 129 Cal. App.4 th Walker v. Chase (1865) 53 Me Yee v. City of Escondido (1990) 224 Cal.App.3d Yount v. City of Sacramento (2005) 35 Cal.Rptr.3d , 8 Statutes 42 U.S.C passim Penal Code passim Penal Code 148(a)(1)... 7, 8 iii