In a recently published case, Kon v. City of Los Angeles, the Los Angeles Court of Appeal held that a criminal defendant who previously pled guilty to disturbing the peace could sue the police for excessive force. Aleksandr Kon, a limousine driver, was picking up a passenger at LAX Airport, when he was approached by a police officer who accused him of speeding. An altercation ensued, and Kon was arrested and charged with resisting arrest. Eventually the charge was reduced to an infraction for disturbing the peace, to which Kon pleaded no contest. Kon then sued the LAX Police under The Tom Bane Civil Rights Act, Civil Code Section 52.1, for excessive force. The trial court dismissed the suit, concluding the alleged resisting arrest barred his action by establishing that force was necessary for the arrest.
The Court of Appeal reversed, holding the civil suit could proceed because the criminal case did not establish whether the officer had used lawful or excessive force. The appellate court noted the U.S. Supreme Court had held in a 1994 decision entitled Heck v. Humphrey that a plaintiff could not challenge conviction or confinement via a federal civil rights claim (42 U.S.C. § 1983) if success on the claim would imply the invalidity of the criminal judgment. However, it concluded its rule did not apply because Kon involved only state law claims. The appellate court also found the trial court had misinterpreted Yount v. City of Sacramento, where the California Supreme Court found a criminal conviction bars a subsequent civil suit arising from the same incident if the allegations in the suit are inconsistent with the conviction. Kon was not convicted of resisting arrest and his conviction for disturbing the peace had nothing to do with excessive force. If Kon had been convicted of resisting arrest, then his civil suit would have been barred because the criminal court would have necessarily decided whether the officer had used excessive force because it is not illegal to resist unlawful force by a police officer, only lawful force.
The takeaway here is that while police may not control prosecutors’ charging decisions, those decisions may preclude or allow a subsequent civil action. Police departments should therefore be aware that even if a defendant pleads guilty to a crime, he or she may still sue for civil damages if the claims in the civil suit were not foreclosed by the outcome of the criminal case.