FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MORGAN SANDERS, No. 19-16920
Plaintiff-Appellant,
D.C. No.
v. 3:18-cv-04326-
SK
CITY OF PITTSBURG; THOMAS
BRYAN, Pittsburg Police Officer;
HULLEMEN, Antioch Police Officer OPINION
#5322; HOPWOOD, Antioch Police
Officer #5235,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Sallie Kim, Magistrate Judge, Presiding
Argued and Submitted September 15, 2020
Submission Vacated March 26, 2021
Resubmitted September 16, 2021
San Francisco, California
Filed September 23, 2021
Before: J. Clifford Wallace, Bridget S. Bade, and
Patrick J. Bumatay, Circuit Judges.
Opinion by Judge Bumatay
2 SANDERS V. CITY OF PITTSBURG
SUMMARY *
Civil Rights
The panel affirmed the district court’s dismissal of a
complaint, on the basis of Heck v. Humphrey, 512 U.S. 477
(1994), brought pursuant to 42 U.S.C. § 1983 alleging police
officers used excessive force when they deployed a police
dog against plaintiff.
After being spotted in a stolen car, plaintiff, Morgan
Sanders, fled from the police. He led them on a car chase, a
foot chase and then struggled after being tackled. During the
scuffle, a police officer commanded a police dog to bite
Sanders’s leg and Sanders was finally subdued and charged
with, among other counts, resisting arrest under California
Penal Code § 148(a)(1), which prohibits resisting, delaying
or obstructing a police officer during the discharge of his
duties. Sanders pleaded no contest to all the charges against
him and stipulated that the factual basis for his plea was
based on the preliminary hearing transcript.
Under Heck, a § 1983 claim must be dismissed if a
judgment in favor of the plaintiff would necessarily imply
the invalidity of his conviction or sentence, unless the
conviction or sentence has already been invalidated. The
panel first stated that a defendant can’t be convicted under
§ 148(a)(1) if an officer used excessive force at the time of
the acts resulting in the conviction. Consequently, an
excessive force claim can’t survive the Heck bar if it’s
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
SANDERS V. CITY OF PITTSBURG 3
predicated on allegedly unlawful actions by the officer at the
same time as the plaintiff’s conduct that resulted in his
§ 148(a)(1) conviction. Moreover, Heck bars any § 1983
claim alleging excessive force based on an act or acts
constituting any part of the factual basis of a § 148(a)(1)
conviction.
The panel noted that the factual basis for Sanders’s plea
was based on multiple acts of resisting arrest, including his
struggle with officers when the police dog bit him. The
panel held that Sanders could not stipulate to the lawfulness
of the dog bite as part of his § 148(a)(1) guilty plea and then
use the very same act to allege an excessive force claim
under § 1983. Success on such a claim would “necessarily
imply” that his conviction was invalid. Sanders’s claim was,
therefore, barred under Heck.
COUNSEL
Stanley C. Goff (argued), San Francisco, California, for
Plaintiff-Appellant.
Noah G. Blechman (argued), McNamara Ney Beatty
Slattery Borges & Ambacher LLP, Pleasant Hill, California,
for Defendants-Appellees City of Pittsburg and Thomas
Bryan.
Kevin P. Allen (argued) and Dale L. Allen Jr., Allen
Glaessner Hazelwood & Werth LLP, San Francisco,
California, for Defendants-Appellees Hulleman and
Hopwood.
4 SANDERS V. CITY OF PITTSBURG
OPINION
BUMATAY, Circuit Judge:
After being spotted in a stolen car, Morgan Sanders fled
from the police. He led them on a car chase. And then on a
foot chase. An officer eventually caught up to Sanders. But
he wasn’t arrested quietly. He continued to struggle. A
police officer then commanded a police dog to bite Sanders’s
leg. Sanders was finally subdued and charged with resisting
arrest. As his case was working its way through the criminal
justice system, Sanders filed a civil rights action alleging the
use of the police dog was excessive force. The district court
found his claims barred by Heck v. Humphrey, 512 U.S. 477
(1994). We agree.
I.
In 2017, Sanders stole a car and fled from the police. The
result was quite a chase: he sped 25 miles over the limit, ran
several stoplights, and drove on the wrong side of the
freeway. When police blocked the car, Sanders fled on foot.
One of the officers, Officer Thomas Bryan, was working
with a K-9 and warned Sanders that if he kept fleeing, he
would “send the dog.” Eventually, Sanders was tackled by
several officers in a gully. In the ensuing scuffle, while
Sanders continued to struggle, Officer Bryan ordered the dog
to bite Sanders’s right calf. After the bite, the officers
successfully handcuffed and arrested Sanders.
Sanders was charged with, among other counts,
misdemeanor resisting arrest under California Penal Code
§ 148(a)(1). At the preliminary hearing, Officer Bryan
testified that Sanders hindered efforts to arrest him by “first
fleeing in the vehicle, then fleeing on foot, and then resisting
officers attempting to arrest him.” The officer further
SANDERS V. CITY OF PITTSBURG 5
testified that when he approached Sanders in the gully, “[he]
could see that his legs were free, being that both Antioch
cops were trying to apprehend one arm each, at which point
in time [he] applied what is commonly referred to as a
contact bite to the defendant’s right calf.” Several months
later, Sanders pleaded no contest to all the charges against
him, including the violation of § 148(a)(1). At the plea
hearing, Sanders stipulated that the factual basis for his plea
“is based on the preliminary hearing transcript.”
While Sanders’s criminal case was pending, he filed an
action alleging a violation of his Fourth Amendment rights
under 42 U.S.C. § 1983. Specifically, he alleged Officer
Bryan’s use of the police dog was excessive. Sanders also
sued the other officers at the scene and the City of Pittsburg.
The City and officers jointly moved to dismiss Sanders’s
complaint. The district court granted the motion, holding
that Heck barred his claim against Officer Bryan and the
claims against the other officers and the City failed as a
result.
Sanders appealed to this court. We review Federal Rule
of Civil Procedure 12(b)(6) dismissals de novo. Daniels-
Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010).
II.
To avoid what’s called the Heck bar on an excessive-
force claim, a plaintiff must not imply an officer acted
unlawfully during the events that form the basis of a
resisting-arrest conviction under California Penal Code
§ 148(a). Smith v. City of Hemet, 394 F.3d 689, 695 (9th Cir.
2005) (analyzing the Heck bar for a § 148(a) conviction).
Under Heck, a § 1983 claim must be dismissed if “a
judgment in favor of the plaintiff would necessarily imply
the invalidity of his conviction or sentence,” unless the
6 SANDERS V. CITY OF PITTSBURG
conviction or sentence has already been invalidated. Heck,
512 U.S. at 487. Thus, Heck bars a plaintiff’s action if it
would negate an element of the offense, Smith, 394 F.3d
at 695, or allege facts inconsistent with the plaintiff’s
conviction, Beets v. Cnty. of Los Angeles, 669 F.3d 1038,
1046 (9th Cir. 2012). By preventing collateral attacks on
convictions by way of civil actions, the Heck bar furthers the
principles of finality and consistency. Heck, 512 U.S.
at 484–85.
Here, Sanders was charged with resisting arrest under
§ 148(a)(1), which prohibits “resist[ing], delay[ing], or
obstruct[ing]” a police officer during the discharge of his
duties. Under California law, a conviction under this statute
requires that the defendant’s obstructive acts occur while the
officer is engaging in “the lawful exercise of his duties.”
Smith, 394 F.3d at 695. The use of excessive force by an
officer is not within the performance of the officer’s duty.
Id. Thus, the “lawfulness of the officer’s conduct” is
necessarily established as a result of a conviction under
§ 148(a)(1). Hooper v. Cnty. of San Diego, 629 F.3d 1127,
1130 (9th Cir. 2011). In other words, a defendant can’t be
convicted under § 148(a)(1) if an officer used excessive
force at the time of the acts resulting in the conviction.
Consequently, an excessive force claim can’t survive the
Heck bar if it’s predicated on allegedly unlawful actions by
the officer at the same time as the plaintiff’s conduct that
resulted in his § 148(a)(1) conviction. See Smith, 394 F.3d
at 695. Such an allegation would undermine the validity of
the § 148(a)(1) conviction. On the other hand, if the alleged
excessive force occurred before or after the acts that form
the basis of the § 148(a) violation, even if part of one
continuous transaction, the § 1983 claim doesn’t
SANDERS V. CITY OF PITTSBURG 7
“necessarily imply the invalidity of [a] criminal conviction
under § 148(a)(1).” Id. at 696; Hooper, 629 F.3d at 1134.
Sanders contends that his claim is not Heck-barred
because his conviction could have been based on his fleeing
officers prior to his arrest in the gully. Under that theory,
success on his § 1983 claim would leave the conviction
undisturbed since his act of resistance occurred before the
dog bite and arrest. Sanders relies primarily on Hooper,
which held that resisting arrest “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.” 629 F.3d at 1132
(quoting Yount v. City of Sacramento, 43 Cal. 4th 885, 901
(2008)).
But Hooper’s holding does not help Sanders. In that
case, Hooper engaged in multiple obstructive acts in one
continuous transaction, but there was a clear delineation
between lawful and unlawful police action. Hooper had first
jerked her hand away from an officer trying to place her
under arrest. Id. at 1129. She and the officer then struggled
on the ground as the officer tried to get Hooper’s hands
behind her back. Id. What followed was disputed, but
Hooper claimed that, after she stopped resisting, the officer
directed his K-9 to bite her on the head. Id. Hooper pleaded
guilty to resisting arrest under § 148(a)(1) and later filed a
§ 1983 excessive force claim based on the dog bite. Id.
Importantly, the record was silent on which act or acts
formed the basis of her conviction. Thus, for purposes of
summary judgment, we accepted Hooper’s contention that
she had stopped resisting by the time of the dog bite. As a
result, we could divide Hooper’s arrest into separate “factual
contexts”: the lawful police action during the initial arrest
attempt and struggle on the ground, and the unlawful police
8 SANDERS V. CITY OF PITTSBURG
action when the officer ordered the dog bite. Id. at 1132–33.
We allowed Hooper’s excessive force claim to proceed
because Heck is no impediment “when the conviction and
the § 1983 claim are based on different actions during ‘one
continuous transaction.’” Id. at 1134. Hooper’s § 1983
action could separately target one action—the allegedly
unlawful dog bite—without disturbing the § 148(a)(1)
conviction. Accordingly, Hooper merely holds that Heck
presents no bar to an excessive force claim when an officer’s
allegedly unlawful action can be separated from the lawful
actions that formed the basis of the § 148(a)(1) conviction,
even if they occurred during one continuous transaction.
Here, we cannot separate out which of Sanders’s
obstructive acts led to his conviction since all of them did.
As part of his guilty plea, Sanders stipulated that the factual
basis for his conviction encompassed the three instances of
resistance identified in the preliminary hearing transcript.
Specifically, Officer Bryan testified that he ordered his dog
to bite Sanders’s right calf as he observed other officers
struggling to apprehend Sanders’s arms in the gully. So
unlike Hooper, the dog bite in this case is unquestionably
part of the actions that formed the basis of Sanders’s
conviction. Under these facts, there is no way to carve out
the dog bite from the § 148(a)(1) conviction without
“necessarily imply[ing]” that the conviction was invalid.
Heck, 512 U.S. at 487. Because the dog bite was part of the
§148(a)(1) conviction’s factual basis, it was necessarily
lawful for purposes of the Heck analysis.
And while Hooper held that a continuous transaction can
be broken into “different actions” for purposes of a § 1983
action, it did not suggest we may slice up the factual basis
of a § 148(a)(1) conviction to avoid the Heck bar. On the
contrary, Yount—the case relied on by Hooper—specifically
SANDERS V. CITY OF PITTSBURG 9
rejected this argument. In Yount, a § 1983 plaintiff
attempted to avoid Heck by arguing that his § 148(a)(1)
conviction could stand on any of his multiple acts of
resistance, and “so long as one act of resistance remains
undisturbed to support the criminal conviction, it is
immaterial that success on the section 1983 claim might be
inconsistent with other facts that supported the criminal
conviction.” Yount, 43 Cal. 4th at 896. But the court
soundly rejected that contention: “Yount’s conviction
established his culpability during the entire episode with the
four officers, and any civil rights claim that is inconsistent
with even a portion of that conviction is barred because it
would necessarily imply the invalidity of that part of the
conviction.” Id. (emphasis added). 1 Accordingly, Yount
found that the factual basis of a § 148(a)(1) conviction
encompassing multiple acts is indivisible for purposes of
avoiding a Heck bar. Id. at 895–96.
We follow the California Supreme Court’s interpretation
of § 148(a)(1), see Hooper, 629 F.3d at 1132, and adopt its
approach. Indeed, we have previously held that a jury
conviction for § 148(a)(1) based on multiple acts of
resistance necessarily means that “officers’ actions
throughout the whole course of the defendant’s conduct”
was necessarily found lawful and any action alleging
excessive force based on those actions would be Heck-
barred. Smith, 394 F.3d at 699 n.5. Similarly, Heck bars any
§ 1983 claim alleging excessive force based on an act or acts
1
The Yount trial court established the factual basis for Yount’s
conviction by hearing testimony from eyewitnesses and taking judicial
notice of documents from the criminal proceeding. Yount, 43 Cal. 4th
at 892.
10 SANDERS V. CITY OF PITTSBURG
constituting any part of the factual basis of a § 148(a)(1)
conviction.
In sum, we hold that Sanders cannot stipulate to the
lawfulness of the dog bite as part of his § 148(a)(1) guilty
plea and then use the “very same act” to allege an excessive
force claim under § 1983. Id. Success on such a claim
would “necessarily imply” that his conviction was invalid.
Heck, 512 U.S. at 487. Sanders’s claim against Officer
Bryan is, therefore, barred under Heck. 2
III.
The factual basis for Sanders’s plea was based on
multiple acts of resisting arrest, including his struggle with
officers when the K-9 bit him. Because a favorable
judgment on his § 1983 claim would necessarily call into
2
At oral argument, Sanders argued for the first time that Officer
Bryan ordered a further dog bite after he was handcuffed by the other
officers. Sanders’s complaint fails to allege any dog bite or continued
dog bite after he was handcuffed. Because this specific contention was
not raised in briefing or his complaint and the City and officers had no
meaningful opportunity to respond to the new allegation, we treat this
argument as waived. Wood v. Hall, 130 F.3d 373, 377 (9th Cir. 1997)
(“Arguments raised for the first time at oral argument are generally
waived.”). We also affirm the dismissal of Sanders’s remaining claims
for integral participation, failure to intervene, and Monell liability.
Although the district court dismissed the claims because they were
predicated on the Heck-barred claim, Sanders neglected to raise those
claims on appeal. See United States v. Kama, 394 F.3d 1236, 1238 (9th
Cir. 2005) (“Generally, an issue is waived when the appellant does not
specifically and distinctly argue the issue in his or her opening brief.”).
SANDERS V. CITY OF PITTSBURG 11
question the validity of his conviction, we affirm the
dismissal of his claims.
AFFIRMED.