dissenting:
While I agree with the bulk of the majority’s opinion in this case, I disagree with the resolution of the collateral estoppel issue in part III A. of the opinion. Because I believe that the district court committed reversible error in ruling that the defendants were estopped from offering evidence on a central issue, I must dissent.
As the majority notes, the case law approves of offensive and nonmutual collateral estoppel, see Parklane Hosiery Co. v. Shore, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979); Blonder-Tongue Laboratories, Inc. v. University of Ill. Foundation, 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971), and principles of collateral estoppel apply in section 1983 cases. See Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980); Migra v. Warren City *779School Dist. Bd. of Educ., 465 U.S. 75, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984). The case law does not, however, permit estoppel of a party who has never litigated the relevant issue:
Some litigants — those who never appeared in a prior action — may not be collaterally estopped without litigating the issue. They have never had a chance to present their evidence and arguments on the claim. Due process prohibits es-topping them despite one or more existing adjudications of the identical issue which stand squarely against their position.
Blonder-Tongue, 402 U.S. at 329, 91 S.Ct. at 1443. While Williams may be nonmutually and offensively estopped by his criminal conviction from relitigating the rape issues, neither Amerson nor the County, who have never addressed the matter previously, may be estopped by Williams’ criminal trial.
The majority states that “[sjection 1983 liability in this case rested on the fact that Williams committed the rape....” Majority Op. at 775. I believe that Amerson and the county are entitled to a day in court on the question of whether Williams committed the rape. They would, of course, be unable to challenge the fact that Williams was convicted of rape, but the fact of conviction is distinct from the facts underlying the conviction. That is the distinction recognized in Burt v. Union Central Life Ins., 187 U.S. 362, 23 S.Ct. 139, 47 L.Ed. 216 (1902) and Fidelity-Phenix Fire Ins. v. Murphy, 226 Ala. 226, 146 So. 387 (1933). In those civil cases, liability turned on the fact of the conviction, while here liability turns on the underlying facts. The plaintiff does not claim to have been injured by Williams’ conviction for rape, but by his commission of rape. While Williams’ conviction precludes him from relitigating the question of whether he committed the rape, the conviction does not preclude Amerson or the County.
Given my conclusion that the district court’s ruling wrongly precluded the Sheriff and the County from offering evidence on the central question of whether Williams raped the plaintiff, I would reverse the judgment entered against those two defendants.