FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DEBORAH HOOPER, an individual,
Plaintiff-Appellant,
v.
COUNTY OF SAN DIEGO; SAN DIEGO No. 09-55954
COUNTY SHERIFF’S DEPARTMENT; D.C. No.
WILLIAM B. KOLENDER, Sheriff, in 3:07-cv-01647-
his official and individual JAH-CAB
capacity; KIRK TERRELL, Deputy
OPINION
Sheriff, in his official and
individual capacity; DOES 1
THROUGH 10,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of California
John A. Houston, District Judge, Presiding
Argued and Submitted
June 8, 2010—Pasadena, California
Filed January 4, 2011
Before: Stephen S. Trott and William A. Fletcher,
Circuit Judges, and Charles R. Breyer,* District Judge.
Opinion by Judge William A. Fletcher
*The Honorable Charles R. Breyer, United States District Judge for the
Northern District of California, sitting by designation.
349
HOOPER v. SAN DIEGO 353
COUNSEL
Robert Mann, Donald. W. Cook, MANN COOK ATTOR-
NEYS AT LAW, Los Angeles, California, for the appellant.
Stephanie E. Kish, COUNTY OF SAN DIEGO OFFICE OF
COUNTY COUNSEL, San Diego, California, for the appel-
lee.
OPINION
W. FLETCHER, Circuit Judge:
Deborah Hooper appeals the district court’s grant of sum-
mary judgment to defendants on her excessive force claims.
The district court held that Hooper’s § 1983 claim was barred
under Heck v. Humphrey, 512 U.S. 477 (1994), as a result of
her conviction for resisting a peace officer under California
Penal Code § 148(a)(1). We reverse the district court’s deci-
sion on Hooper’s § 1983 claim.
I. Background
On May 9, 2006, Deborah Hooper was detained by a pri-
vately employed loss prevention officer at a Long’s Drugs
store in Encinitas, California. The officer believed that
Hooper had committed petty theft. He handcuffed her and
held her in a second-floor office in the store. In response to
a radio call, San Diego Deputy Sheriff Kirk Terrell arrived at
the store with his “department issue canine” in his patrol car.
Hooper was calm and compliant, so Deputy Terrell
removed the handcuffs. Deputy Terrell took statements from
Hooper and the loss prevention officer. Deputy Terrell com-
pleted a Notice to Appear in criminal court for Hooper and
informed her that he was going to search her car. Deputy Ter-
354 HOOPER v. SAN DIEGO
rell then walked with Hooper outside to the parking lot, and
Hooper gave him her car keys. Deputy Terrell discovered in
the car a crystalline substance he believed to be methamphet-
amine. Deputy Terrell then approached Hooper, grabbed her
left wrist, and told her she was under arrest for possession of
methamphetamine. Hooper jerked her hand away from Dep-
uty Terrell. In the struggle that ensued, Hooper ended up on
the ground, lying on her stomach. Deputy Terrell lay on her
back, covering her, with his head pointed in the same direc-
tion as hers. Deputy Terrell called for backup using his hand-
held radio.
What happened next is disputed. Taking the evidence in the
light most favorable to Hooper, she struggled briefly with
Deputy Terrell after they were on the ground by “jerking side
to side.” Deputy Terrell got both of Hooper’s hands behind
her back. She stopped resisting when Deputy Terrell
instructed her to do so. There were a number of spectators
near Deputy Terrell’s patrol car. Deputy Terrell screamed,
“Get away from my car. Get away from my car. Come here,
Kojo.” Deputy Terrell’s German Shepherd ran toward
Hooper, barking and growling. There is no significant dispute
about what happened then. Deputy Terrell’s dog bit Hooper’s
head, lost its hold, and then bit and held Hooper’s head. The
dog released Hooper’s head when Deputy Terrell’s backup
arrived. According to Deputy Terrell, all of this took place —
from grabbing Hooper’s wrist until the arrival of backup —
in a span of 45 seconds.
The dog’s bites tore off large portions of Hooper’s scalp.
Hooper subsequently underwent skin graft surgery. She has
permanently lost all of her hair over large areas of her head
and has disfiguring scars where her scalp was torn away.
Hooper pled guilty to resisting a peace officer under Cali-
fornia Penal Code § 148(a)(1). She does not dispute the law-
fulness of her arrest, nor does she dispute that she resisted
HOOPER v. SAN DIEGO 355
arrest. However, she contends that Terrell used excessive
force in response to her resistance.
Hooper brought suit under 42 U.S.C. § 1983 and analogous
provisions of California law. The district court granted sum-
mary judgment to defendants on the ground that Hooper’s
excessive force claims are barred under Heck and its state-law
analogues. For the reasons that follow, we disagree with the
district court’s analysis under Heck.
II. Standard of Review
We review a grant of summary judgment de novo. Anthoine
v. N. Cent. Counties Consortium, 605 F.3d 740, 747 (9th Cir.
2010). We view the evidence in the light most favorable to
Hooper, the non-moving party. Huppert v. City of Pittsburg,
574 F.3d 696, 701 (9th Cir. 2009). “A grant of summary judg-
ment is inappropriate if there is ‘any genuine issue of material
fact or the district court incorrectly applied the substantive
law.’ ” Id. (quoting Blankenhorn v. City of Orange, 485 F.3d
463, 470 (9th Cir. 2007)).
III. Discussion
A. Hooper’s § 1983 Claim
[1] When a plaintiff who has been convicted of a crime
under state law seeks damages in a § 1983 suit, “the district
court must consider whether a judgment in favor of the plain-
tiff would necessarily imply the invalidity of his conviction or
sentence.” Heck, 512 U.S. at 487. If the answer is yes, the suit
is barred. Id.
[2] Hooper pled guilty to a violation of California Penal
Code § 148(a)(1). Section 148(a)(1) is often referred to as a
statute prohibiting “resisting arrest.” In fact, however, the
statutory prohibition is much broader than merely resisting
arrest. Section 148(a)(1) provides, “Every person who will-
356 HOOPER v. SAN DIEGO
fully 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 misdemea-
nor].” For a conviction under § 148(a)(1) to be valid, the
defendant must have “resist[ed], delay[ed], or obstruct[ed]” a
police officer in the lawful exercise of his or her duties. The
lawfulness of the officer’s conduct is an essential element of
the offense under § 148(a)(1). See People v. Curtis, 70 Cal.2d
347, 354-56, 357 (1969) (“an officer may only use reasonable
force to make an arrest or to overcome resistance” (emphasis
in original)).
1. Smith v. City of Hemet
[3] In Smith v. City of Hemet, 394 F.3d 689 (9th Cir. 2005)
(en banc), we considered a case very similar to the one now
before us. As in our case, the plaintiff in Smith had pled guilty
to a violation of § 148(a)(1). Police officers had responded to
a domestic violence call. Smith stood on his front porch in his
pajamas. He twice refused to comply with the officers’ lawful
orders to take his hands out of his pockets. He eventually took
his hands out of his pockets, but then refused lawful orders to
put his hands on his head and walk off the porch toward the
officers, and to put his hands on his head and turn around. The
officers then came onto the porch. They sprayed Smith in the
face with pepper spray, slammed him against his front door,
threw him down on the porch, and ordered a dog to bite him.
Officers ordered the dog to bite Smith twice while he was still
on the porch, first on the shoulder and neck and then on his
left side and shoulder blade. The dog also sunk his teeth into
Smith’s arm. The officers then dragged Smith off the porch.
Officers ordered the dog to bite Smith again, this time on his
buttocks. The officers pepper sprayed Smith a total of four
times.
[4] Smith sued the officers for use of excessive force under
42 U.S.C. § 1983. We held that Smith’s complaint was not
barred by Heck. We noted that Smith violated § 148(a)(1)
HOOPER v. SAN DIEGO 357
during two different “phases.” First, Smith resisted, delayed,
or obstructed the officers before they came on the porch, in
what we called the “investigative phase.” Smith, 394 F.3d at
698. Second, he resisted, delayed, or obstructed the officers
when they physically arrested him. We wrote that Smith’s
guilty plea could properly have been based on his behavior
during the first phase. In that event, “a judgment in Smith’s
favor would not necessarily conflict with his conviction
because his acts of resistance . . . 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.” Id. Because there was
a factual basis for Smith’s guilty plea to § 148(a)(1) that
involved only lawful behavior by the police, success in
Smith’s § 1983 suit would “not necessarily imply the invalid-
ity of his conviction and is therefore not barred by Heck.” Id.
at 699 (emphasis in original).
The facts of Smith allowed us to differentiate cleanly
between two phases of the encounter with the police. In the
first phase, when Smith stood on his porch and refused the
officers’ lawful orders, he violated § 148(a)(1) by “resist[ing],
delay[ing], or obstruct[ing]” the police in the performance of
their duties. In the second phase, when the police arrested
him, Smith may or may not have violated § 148(a)(1),
depending on whether the police acted lawfully in effecting
the arrest. We quoted the California Court of Appeal’s state-
ment in Susag v. City of Lake Forest, 94 Cal.App.4th 1401,
1409 (2002): “ ‘If the officer was not performing 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).’ ” Smith, 394 F.3d at 695 (emphasis added in
Smith). Based on this understanding of California law, we
wrote, “Excessive force used by a police officer at the time of
arrest is not within the performance of the officer’s duty.” Id.
(emphasis in original). “It is, thus, clear that if Smith pled
guilty to § 148(a)(1) based on his behavior after the officers
358 HOOPER v. SAN DIEGO
came onto the porch, during the course of the arrest, his suit
would be barred by Heck.” Id. at 697 (emphasis in original).
[5] This last-quoted statement in Smith is dictum because
we ultimately held that Smith’s § 148(a)(1) conviction could
have been based on his conduct prior to the arrest phase.
However, if this statement was based on a correct understand-
ing of § 148(a)(1), Hooper’s excessive force claims are barred
under Heck, for in Hooper’s case, unlike in Smith’s, there
were no distinct phases. Rather, Hooper’s arrest was effectu-
ated in a single continuous chain of events lasting a very brief
time. However, a subsequent decision by the California
Supreme Court makes clear that our dictum in Smith was
based on a misunderstanding of § 148(a)(1).
2. Interpretation of § 148(a)(1) after Smith
[6] Four years after Smith, the California Supreme Court
held that a conviction under § 148(a)(1) can be valid even if,
during a single continuous chain of events, some of the offi-
cer’s conduct was unlawful. Yount v. City of Sacramento, 43
Cal.4th 885 (2008). According to the Court, a conviction
under § 148(a)(1) requires only that some lawful police con-
duct was resisted, delayed, or obstructed during that continu-
ous chain of events. In other words, the California Supreme
Court interpreted the elements of § 148(a)(1) differently than
did the California Court of Appeal in Susag, the decision
upon which we relied in Smith.
Yount was arrested in the parking lot of a convenience
store in the early hours of the morning and placed in a patrol
car. He was extremely drunk and belligerent. After Yount
kicked out the side window of the patrol car, the officers tried
to place him in leg restraints, but he continued to threaten
them and was uncooperative. One of the officers sought to
tase him. By mistake, the officer drew his gun rather than his
taser. The officer shot Yount in his upper thigh. Yount
pleaded no contest to a violation of § 148(a)(1). Yount then
HOOPER v. SAN DIEGO 359
filed a claim in state court for excessive force under 42 U.S.C.
§ 1983.
The California Supreme Court distinguished the facts in
Smith from those in Yount. It wrote, “[H]ere, unlike in Smith,
Yount’s acts of resistance were part of one continuous trans-
action involving the officers’ efforts to effect his arrest and
cannot be segregated into an investigative phase and an inde-
pendent arrest phase.” 43 Cal.4th at 901 (emphasis added).
The Court wrote that Heck would bar Yount’s § 1983 claim
to “the extent that [it] alleges that he offered no resistance,
that he posed no reasonable threat of obstruction to the offi-
cers, and that the officers had no justification to employ any
force against him at the time he was shot[.]” Id. at 898
(emphasis added). But Yount’s § 1983 claim was not barred
by Heck even though the allegedly excessive force was used
during “one continuous transaction.” Id. at 901.
[7] The Court wrote that Yount’s claim was not Heck-
barred because § 148(a)(1) contains no requirement that there
be a distinct temporal separation between the use of reason-
able force and the use of excessive force. If, at some time dur-
ing a “continuous transaction” between an individual and an
officer, the individual “resist[s], delay[s], or obstruct[s]” the
officer in the lawful performance of his or her duty, that is a
violation of § 148(a)(1). The individual’s “resist[ing], delay-
[ing], or obstruct[ing]” the officer does not lose its character
as a violation of § 148(a)(1) if, at some other time during that
same “continuous transaction,” the officer uses excessive
force or otherwise acts unlawfully. In explaining its holding,
the Court in Yount quoted approvingly from a federal case,
involving the use of non-deadly force, that made the same
point:
“[A] defendant might resist a lawful arrest, to which
the arresting officers might respond with excessive
force to subdue him. The subsequent use of exces-
sive force would not negate the lawfulness of the ini-
360 HOOPER v. SAN DIEGO
tial arrest attempt, or negate the unlawfulness of the
criminal defendant’s attempt to resist it. Though
occurring in one continuous chain of events, two iso-
lated factual contexts would exist, the first giving
rise to criminal liability on the part of the criminal
defendant, and the second giving rise to civil liability
on the part of the arresting officer.”
Id. at 899 (quoting Jones v. Marcum, 197 F. Supp. 2d 991,
1005 n.9 (S.D. Ohio 2002) (emphasis added)). That is, two
“factual contexts” can exist during “one continuous chain of
events” — or, in the words of Yount, during “one continuous
transaction.”
[8] The Court’s decision in Yount does not mean that our
holding in Smith was wrong. But it does mean that our under-
standing of § 148(a)(1) was wrong. Section 148(a)(1) does not
require that an officer’s lawful and unlawful behavior be
divisible into two discrete “phases,” or time periods, as we
believed when we decided Smith. It is sufficient for a valid
conviction under § 148(a)(1) that at some time during a “con-
tinuous transaction” an individual resisted, delayed, or
obstructed an officer when the officer was acting lawfully. It
does not matter that the officer might also, at some other time
during that same “continuous transaction,” have acted unlaw-
fully.
[9] We are, of course, bound by the California Supreme
Court’s interpretation of California law. Chalk v. T-Mobile
USA, Inc., 560 F.3d 1087, 1092 (9th Cir. 2009). We therefore
apply Heck to § 148(a)(1) as the California Supreme Court
interpreted it in Yount.
3. Application of Heck
[10] The question before us is the basic Heck question —
whether success in Hooper’s § 1983 claim that excessive
force was used during her arrest “would ‘necessarily imply’
HOOPER v. SAN DIEGO 361
or ‘demonstrate’ the invalidity” of her conviction under
§ 148(a)(1). Smith, 394 F.3d at 695. Given California law, as
clarified by Yount, we hold that it would not. The chain of
events constituting Hooper’s arrest was, in the words of the
Court in Yount, “one continuous transaction.” A holding in
Hooper’s § 1983 case that the use of the dog was excessive
force would not “negate the lawfulness of the initial arrest
attempt, or negate the unlawfulness of [Hooper’s] attempt to
resist it [when she jerked her hand away from Deputy Ter-
rell].” Yount, 43 Cal. 4th at 899 (quoting Jones, 197 F. Supp.
2d at 1005 n.9).
The California Supreme Court in Yount did not reach the
question how it would apply Heck to a § 148(a)(1) case where
non-deadly force was used. Yount, 43 Cal.4th at 899 n.1. But
the Court’s failure to reach that question does not matter here.
While we are bound by that Court’s interpretation of
§ 148(a)(1), the application of the Heck bar in an excessive
force case under the Fourth Amendment is a question of fed-
eral law that we decide for ourselves.
[11] The line between excessive and reasonable force
under the Fourth Amendment is not the line between deadly
and non-deadly force. The United States Supreme Court held
in Graham v. Connor, 490 U.S. 386, 397 (1989), that the test
for whether force is reasonable or excessive is “whether the
officers’ actions are ‘objectively reasonable’ in light of the
facts and circumstances confronting them, without regard to
their underlying intent or motivation.” The Court did not
create a separate test for deadly force in Graham. Rather, “all
claims that law enforcement officers have used excessive
force — deadly or not — in the course of an arrest, investiga-
tory stop, or other ‘seizure’ of a free citizen should be ana-
lyzed under the Fourth Amendment and its ‘reasonableness’
standard[.]” Id. at 395 (emphasis in original). In Scott v. Har-
ris, 550 U.S. 372 (2007), the Court reiterated the point that
deadly force cases do not constitute a special category.
“[There is no] magical on/off switch that triggers rigid pre-
362 HOOPER v. SAN DIEGO
conditions whenever an officer’s actions constitute ‘deadly
force.’ . . . Whether or not Scott’s actions constituted applica-
tion of ‘deadly force,’ all that matters is whether Scott’s
actions were reasonable.” Id. at 382-83.
In so holding, we agree with many of our sister circuits in
similar cases. For example, in VanGilder v. Baker, 435 F.3d
689, 692 (7th Cir. 2006), the Seventh Circuit noted that a
plaintiff alleging excessive force “does not collaterally attack
his conviction [or] deny that he resisted. . . . Rather, [plaintiff]
claims that he suffered unnecessary injuries because [the]
response to his resistance . . . was not . . . objectively reason-
able.” See also Martinez v. City of Alburquerque, 184 F.3d
1123, 1127 (10th Cir. 1999) (“The state court’s finding that
Martinez resisted a lawful arrest . . . may coexist with a find-
ing that the police officers used excessive force to subdue
him.”); Bush v. Strain, 513 F.3d 492 (5th Cir. 2008); Hadley
v. Gutierrez, 526 F.3d 1324 (11th Cir. 2008); Dyer v. Lee, 488
F.3d 876 (11th Cir. 2007); Thore v. Howe, 466 F.3d 173 (1st
Cir. 2006); Nelson v. Jashurek, 109 F.3d 142, 145-46 (3d Cir.
1997) (permitting an excessive force claim when plaintiff
alleged that the officer “effectuated a lawful arrest in an
unlawful manner”). But see Cummings v. City of Akron, 418
F.3d 676, 682-83 (6th Cir. 2005) (holding that excessive force
claims are Heck barred by a conviction for misdemeanor
assault on an officer during the arrest incident).
To the extent the state law under which a conviction is
obtained differs, the answer to the Heck question could also
differ. Nonetheless, the decisions of our sister circuits are
instructive, for many state statutes that criminalize resisting
lawful arrest and other lawful police conduct are very similar.
It is thus not surprising that most of the circuit courts that
have addressed the Heck bar in cases involving such statutes
should have given the same answer, and that we, in turn,
agree with that answer.
[12] In sum, we conclude that a conviction under Califor-
nia Penal Code § 148(a)(1) does not bar a § 1983 claim for
HOOPER v. SAN DIEGO 363
excessive force under Heck when the conviction and the
§ 1983 claim are based on different actions during “one con-
tinuous transaction.” In the case now before us, we hold that
Hooper’s § 1983 excessive force claim is not Heck-barred
based on her conviction under § 148(a)(1).
B. Hooper’s Claims under State Law
In addition to her § 1983 claim, Hooper also alleges that the
use of the dog constituted excessive force under the California
Constitution and California Civil Code § 52.1(b). The Califor-
nia Supreme Court has not distinguished between the applica-
tion of Heck to § 1983 claims and the application of
analogous California law to state-law claims. See Yount, 43
Cal.4th at 902 (noting “that Heck and California law express
similar concerns about judicial economy and the avoidance of
conflicting resolutions” and applying its § 1983 Heck analysis
to a state-law battery claim). The district court held that the
California-law analogue to Heck bars Hooper’s state-law
claims for excessive force.
[13] We vacate the decision of the district court on Hoop-
er’s state-law claims and remand for reconsideration in light
of this opinion. We recognize, in light of the fact that the Cali-
fornia Supreme Court did not reach the question of non-
deadly force in Yount, the possibility that California law may
differ from Heck. On remand, the district court will have an
opportunity to decide whether the application of California-
law analogues to Heck differs from our application of Heck
itself. That question has not been addressed below, and we
believe it is better answered in the first instance by the district
court.
C. Defendant Sheriff Kolender
[14] We affirm the district court’s grant of summary judg-
ment on Hooper’s claims against Sheriff Kolender in his indi-
vidual capacity for the reasons given by the district court.
364 HOOPER v. SAN DIEGO
Conclusion
[15] We hold that Hooper’s § 1983 excessive force claim
against all of the defendants except Sheriff Kolender should
not have been dismissed on summary judgment as barred by
Heck. We reverse the district court’s grant of summary judg-
ment to those defendants on Hooper’s § 1983 claim. We
vacate the district court’s grant of summary judgment on
Hooper’s state-law claims and remand for reconsideration in
light of Yount and our opinion in this case. Finally, we affirm
the district court’s grant of summary judgment to Sheriff
Kolender.
REVERSED in part, AFFIRMED in part, VACATED in
part, and REMANDED for further proceedings. Costs on
appeal to appellant Hooper.