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					No. S139762

                  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. C046869



                  Alan M. Cohen, SBN:177662
          MEYERS, NAVE, RIBACK, SILVER & WILSON
                    555 12th Street, Suite 1500
                       Oakland, CA 94607
                   Telephone: (510) 808-2000
                    Facsimile: (510) 444-1108
             Attorneys for League of California Cities
       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


                                       1
validity of that conviction. The conviction and not the means by which it
was obtained is all that matters.
       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


                                      2
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.



Dated: April 2, 2011

                            Respectfully submitted,
                            MEYERS, NAVE, RIBACK, SILVER &
                            WILSON



                            By: _____________________________
                                  Alan M. Cohen
                                  Attorneys for Amicus Curiae
                                  League of California Cities




                                     3
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


                                      4
of state court judgments ordinarily prevents a convicted person from
collaterally attacking that judgment by suing the police officer whose lawful
arrest underlies that 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. 477.
       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 (9th 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.4th 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


                                       5
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 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


                                       6
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).
       In Smith v. City of Hemet ((9th 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


                                      7
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
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, 571-572, 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 571-572, 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, 575-576) (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.4th 1423)). The Third District should not have felt so constrained.
       Because it is a federal statute, state courts exercise concurrent


                                      8
jurisdiction with federal courts in actions based on 42 U.S.C § 1983.
(Chavez v. Keat (1995) 34 Cal.App.4th 1406, 1413-1416.) 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,
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


                                      9
used. (Graham v. Connor (1989) 490 U.S. 386, 395-397; 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 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, 395-397)
       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.


                                     10
1120, 117 S.Ct. 2512 (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 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, 26-30 (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 § 1983. (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



                                     11
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, 395-396.)
       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


                                      12
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
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


                                       13
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. 4th 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.
       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 defense-
related 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


                                      14
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
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


                                      15
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 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.




                                      16
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
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.



                                      17
           _________________________
                 Alan M. Cohen

864597-1




                       18
                                  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. ................................................................ 6

       B.     The Lower Courts Decision Contradicts Sound Public Policy and
              Imposes an Undue Burden on Local Government. ..................... 11

III.      CONCLUSION ................................................................................ 17




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                              TABLE OF AUTHORITIES
                                                                                          Page(s)

Cases

Albright v. Oliver (1994) 510 U.S. 266 ....................................................... 10

Chavez v. Keat (1995) 34 Cal.App.4th 1406 ................................................. 9

County of Sacramento v. Lewis (1998) 523 U.S. 833.................................... 4

Debtor Reorganizers, Inc. v. State Bd. of Equalization
  (1976) 58 Cal.App.3d 691 ........................................................................ 9

Elliott v. Leavitt, 99 F.3d 640, 642 (4th Cir. 1996) ..................................... 11

Gould v. People (1976) 56 Cal.App.3d 909 .................................................. 9

Graham v. Connor (1989) 490 U.S. 386 ..................................................... 10

Heck v. Humphrey (1996) 512 U.S. 47................................................. passim

Mills v. Superior Court (1973) 10 Cal.3d 288............................................. 14

Paul v. Davis (1976) 424 U.S. 693 ............................................................... 4

People v. Burton (1989) 48 Cal.3d 843 ......................................................... 9

People v. Crittenden (1994) 9 Cal.4th 83, 120 .............................................. 9

People v. West (1979) 3 Cal.3d 595 .............................................................. 7

Rohr Aircraft Corp. v. County of San Diego (1959) 51 Cal.2d 759 .............. 9

Smith v. City of Hemet (9th Cir. 2005) 394 F. 3d 689 ...................... 5, 7, 8, 11

Smith v. Freland (6th Cir. 1992) 954 F.2d 343 ........................................... 10

Susag v. Lake Forest (2002) 94 Cal.App.4th 1401 ................................. 5, 6, 8




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                      TABLE OF AUTHORITIES (Continued)
                                                                                               Page(s)

Town of Newton v. Rumery (1987) 480 U.S. 386 ........................................ 12

Troung v. Orange County Sherriff’s Dept. (2005) 129 Cal. App.4th 1423 .... 8

Walker v. Chase (1865) 53 Me 258 ............................................................. 17

Yee v. City of Escondido (1990) 224 Cal.App.3d 1349 ................................. 9

Yount v. City of Sacramento (2005) 35 Cal.Rptr.3d 563 ........................... 7, 8
Statutes

42 U.S.C § 1983 ................................................................................... passim

Penal Code § 148 .................................................................................. passim

Penal Code §148(a)(1) ............................................................................... 7, 8




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