dissenting:
Pedro De Luna was beaten and hog-tied by three Phoenix police officers on June 7, 1983. He subsequently filed a civil rights action under 42 U.S.C. § 1983. By ignoring equitable tolling principles and through rigid adherence to technical rules of procedure, the majority unjustly has deprived De Luna of his day in court and barred him from seeking compensation for violations of his civil rights. Although giving lip service to state law, the majority has refused to follow Arizona law which allows equitable exceptions to statutes of limitation.
I.
When adjudicating federal civil rights claims which lack necessary guidance under the federal laws, courts are to apply state law only if it is “not inconsistent with the Constitution and laws of the United States_” 42 U.S.C. § 1988; Burnett v. Grattan, 468 U.S. 42, 48, 104 S.Ct. 2924, 2928, 82 L.Ed.2d 36 (1984).
The Supreme Court has stated that “recognizing judicial power to toll statutes of limitation in federal courts” does not entail “breaking new ground.” American Pipe & Construction Co. v. Utah, 414 U.S. 538, 558, 94 S.Ct. 756, 768, 38 L.Ed.2d 713 (1974). Thus,
[traditionally and for good reasons, statutes of limitation are not controlling measures of equitable relief. Such statutes have been drawn upon by equity solely for the light they may shed in determining that which is decisive for the chancellor’s intervention, namely, whether the plaintiff has inexcusably slept on his rights so as to make a decree against the defendant unfair.
Holmberg v. Armbrecht, 327 U.S. 392, 396, 66 S.Ct. 582, 584, 90 L.Ed. 743 (1946) (citation omitted). Moreover, “[e]quity eschews mechanical rules; it depends on flexibility.” Id.
The Arizona Supreme Court has itself approved of the use of equitable principles to prevent the harsh consequences of strict application of statutes of limitations. Thus *316it has held that “[a] court has a legitimate interest in the procedural rules that govern lawsuits, especially to prevent such rules from becoming a shield for serious inequity. Accordingly, a court may under certain circumstances make narrow equitable exceptions to statutes of limitations.” Hosogai v. Kadota, 145 Ariz. 227, 700 P.2d 1327, 1331 (Ariz.1985) (citations omitted); cf. American Pipe & Construction, 414 U.S. at 559, 94 S.Ct. at 769 (a federal statute providing for substantive liability which also sets a time limitation for instituting actions “does not restrict the power of the federal courts to hold that the statute of limitations is tolled under certain circumstances not inconsistent with the legislative purpose [of the substantive statute].”).
While his complaint was not filed until after enactment of the 1984 amendment of the Arizona tolling provision, De Luna’s cause of action arose prior to the date of amendment. The filing of his complaint also followed the period allowed for the timely filing of section 1983 actions under the tolling of the limitations period previously enjoyed by incarcerated plaintiffs such as De Luna.
De Luna’s case thus presents a classic example of a circumstance in which equitable principles should prohibit application of the amended tolling provision. De Luna may have reasonably relied on the assumption that he was protected under the previous provision which tolled the statute of limitations during incarceration. This reliance would be premised on an assumption that the date of the incident giving rise to the cause of action is the effective date for purposes of determining which law governs. Equitable principles here stand against strict application of the amended tolling provision.
II.
In Usher v. City of Los Angeles, 828 F.2d 556 (9th Cir.1987), the Ninth Circuit refused to retroactively apply the principle of law enunciated in Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985), which shortened the statute of limitations for section 1983 actions in California. The panel held that retroactive application would severely prejudice those plaintiffs whose actions were filed prior to the Wilson decision, but not within the shortened limitations period, and that shortening the limitations period in such a circumstance would be a “clear break with precedent.” At 560.
In reaching its decision, the Usher panel applied the three criteria enunciated in Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07, 92 S.Ct. 349, 355-56, 30 L.Ed.2d 296 (1971) for determining whether a rule of law will enjoy retroactive application. We should grant De Luna the same privilege. In implementing the third of the Chevron criteria by balancing the “advantages and harms to plaintiffs and defendants”, Usher, at 560, it is clear from the record that equity favors not applying the amended tolling provision. If this appears too extreme, then at a minimum, De Luna should be entitled to an opportunity to establish facts which would support an equitable tolling of this amended statute of limitations. The retroactive application sanctioned by the majority “thwart[s], rather than enhance[s], the remedial purposes underlying section 1983.” Gibson v. United States, 781 F.2d 1334, 1339 (9th Cir.1986) (rejecting retroactive application of Wilson where it would serve to shorten the statute of limitations period), cert. denied, — U.S. —, 107 S.Ct. 928, 93 L.Ed.2d 979 (1987).
III.
It is well known that “[t]he goals of the federal [civil rights] statutes are compensation of persons whose civil rights have been violated, and prevention of the abuse of state power.” Burnett, 468 U.S. at 53, 104 S.Ct. at 2931 (citations omitted). Under circumstances such as these, retroactive application should be denied. I would reverse the district court and remand for a hearing to determine if there was detrimental reliance or other facts existing which merit the exercise of equitable principles to toll the amended statute of limitations.