Gabbi Lemos v. County of Sonoma ; Steve Freitas ; Marcus Holton

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GABBI LEMOS ,
Plaintiff-Appellant,
v.
COUNTY OF SONOMA ; STEVE
FREITAS ; MARCUS HOLTON,
Defendants-Appellees.
No. 19-15222
D.C. No.
4:15-cv-05188-
YGR
OPINION
Appeal from the United States District Court
for the Northern District of California
Yvonne Gonzalez Rogers, District Judge, Presiding
Argued and Submitted En Banc March 23, 2022
Pasadena, California
Filed July 19, 2022
Before: Mary H. Murguia, Chief Judge, and William A.
Fletcher, Marsha S. Berzon, Consuelo M. Callahan,
Andrew D. Hurwitz, John B. Owens, Michelle T.
Friedland, Eric D. Miller, Kenneth K. Lee, Daniel A. Bress
and Danielle J. Forrest, Circuit Judges.
Opinion by Judge Miller;
Dissent by Judge Callahan

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2 LEMOS V. COUNTY OF S ONOMA
SUMMARY*
Section 1983 / Excessive Force
The en banc court reversed the district court’s summary
judgment for defendants County of Sonoma, Sheriff Steve
Freitas, and Deputy Marcus Holton in a 42 U.S.C. § 1983
action brought by Gabrielle Lemos alleging that a sheriff’s
deputy used excessive force in arresting her.
The district court held that Lemos’s claim was barred by
Heck v. Humphrey, 512 U.S. 477 (1994), because Lemos
was convicted of willfully resisting, delaying, or obstructing
the deputy during the same interaction in violation of Cal.
Penal Code section 148(a)(1).
The preclusion doctrine established in Heck requires a
court to “consider whether a judgment in favor of the
plaintiff would necessarily imply the invalidity of his
conviction or sentence; if it would, the complaint must be
dismissed unless the plaintiff can demonstrate that the
conviction or sentence has already been invalidated.”
512 U.S. at 487.
The en banc court held that because the record did not
show that Lemos’s section 1983 action necessarily rested on
the same event as her criminal conviction, success in the
former would not necessarily imply the invalidity of the
latter. Heck would bar Lemos from bringing an excessive-
force claim under section 1983 if that claim were based on
force used during the conduct that was the basis for her
* This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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LEMOS V. COUNTY OF S ONOMA 3
section 148(a)(1) conviction. Crucially, the criminal jury
was told that it could find Lemos guilty based on any one of
four acts she committed during the course of her interaction
with Deputy Holton. Because the jury returned a general
verdict, it is not known which act it thought constituted an
offense. Although any of the four acts could be the basis for
the guilty verdict, Lemos’s section 1983 action was based on
an allegation that Holton used excessive force during only
the last one. The court held that if Lemos were to prevail in
her civil action, it would not necessarily mean that her
conviction was invalid; and the action was therefore not
barred by Heck.
The en banc court remanded for further proceedings.
Judge Callahan, joined by Lee, dissented, and would
affirm the district court’s application of the Heck bar to
Lemos’s § 1983 claim. She wrote that the majority’s reason
wrongfully presupposed that an uninterrupted interaction
with no temporal or spatial break between a § 1983
plaintiff’s unlawful conduct and an officer’s alleged
excessive force can be broken down into distinct isolated
events to avoid the application of the Heck bar.

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4 LEMOS V. COUNTY OF S ONOMA
COUNSEL
Izaak D. Schwaiger (argued), Schwaiger Law Firm,
Sebastopol, California; John Houston Scott and Lizabeth N.
de Vries, Scott Law Firm, San Francisco, California; for
Plaintiff-Appellant.
Richard W. Osman (argued) and Sheila D. Crawford,
Bertrand Fox Elliot Osman & Wenzel, San Francisco,
California, for Defendants-Appellees.
OPINION
MILLER, Circuit Judge:
Gabrielle Lemos appeals from the district court’s
dismissal of her claim under 42 U.S.C. § 1983 alleging that
a sheriff’s deputy used excessive force in arresting her. The
district court held that Lemos’s claim was barred by Heck v.
Humphrey, 512 U.S. 477 (1994), because Lemos was
convicted of willfully resisting, delaying, or obstructing the
deputy during the same interaction. Under Heck, a section
1983 action may not proceed if its success would
“necessarily require the plaintiff to prove the unlawfulness
of his conviction.” Id. at 486. But because the record does
not show that Lemos’s section 1983 action necessarily rests
on the same event as her criminal conviction, success in the
former would not necessarily imply the invalidity of the
latter. We therefore reverse and remand for further
proceedings.
Late in the evening of June 13, 2015, Sonoma County
Sheriff’s Deputy Marcus Holton was on patrol in Petaluma,
California, when he came upon a pickup truck with a large

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LEMOS V. COUNTY OF S ONOMA 5
trailer stopped in the road in front of a house. Hearing raised
voices and a reference to a “fight,” he got out of his car to
investigate. His body camera recorded what happened next.
Holton approached the driver’s side of the truck and
asked the driver to leave the vehicle. The driver complied
and said that the passenger, Karli Labruzzi, was his
girlfriend, that she was drunk, and that she was upset because
she had lost her phone. Holton then walked around the truck
to confirm the story with Labruzzi. She was leaning out the
window and talking to a group of three women standing
nearby: her two sisters (one of whom was Lemos) and their
mother.
When Holton asked, “Is everything ok?,” all four women
began yelling at him. After further discussion, Holton said,
“I’m not going to leave until I’ve resolved this,” and they
answered, “Nothing to resolve.” Holton then opened the
truck door to see if Labruzzi was injured, at which point
Lemos—who would later explain that she had “just
graduated from high school” and had consumed “three Jack
Daniels and Cokes” earlier in the evening—stepped between
him and the door, pointed her finger at him, and shouted,
“You’re not allowed to do that!” Holton told Lemos to step
back and pushed her hand away. After Lemos’s mother
moved her away, Holton closed the door. The women
protested, with Lemos insisting, “You cannot go in the car!
You have to have a warrant!” Holton asked them to calm
down so that he could explain why he wished to speak to
Labruzzi. When they did not do so, he called for backup. The
responding deputy, Robert Dillion, later said that he could
hear the women’s screams over the radio.
Labruzzi eventually got out of the truck. During the next
few minutes, all four women continued to remonstrate with
Holton, arguing that he should not have opened the door of

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6 LEMOS V. COUNTY OF S ONOMA
the truck and that the investigation should be conducted, in
Lemos’s words, by “a woman cop.” After Dillion arrived,
Holton separated Lemos’s mother from her daughters to
explain that he was trying to investigate whether Labruzzi
had been the victim of a “domestic incident.” Dillion,
meanwhile, made repeated but futile efforts to instruct the
daughters, “I need one person to talk at a time.” They
responded by concurrently requesting “a woman cop,”
claiming to be sober, accusing Holton of “assault,” and
disparaging Holton and his mother in sexual terms.
Lemos’s mother was apparently not convinced by
Holton’s explanations and twice returned to where her
daughters were standing. The second time she returned,
some five minutes after the initial encounter at the truck
door, she told Lemos to go inside the house. Lemos began to
do so, walking past Holton and ignoring his orders to stop.
Holton ran after Lemos and grabbed her wrist in an attempt
to handcuff her, but she pulled away. He then tackled her and
placed her under arrest. Later that night, Lemos was taken to
a hospital, where she was treated and released for injuries
she sustained when tackled.
Lemos brought this action against Holton, Sonoma
County Sheriff Steve Freitas, and Sonoma County, alleging
that Holton had violated her Fourth Amendment right to be
free from excessive force. (Lemos also asserted a claim
under the First Amendment, but she has now abandoned it.)
Soon thereafter, the Sonoma County District Attorney
charged Lemos with resisting, delaying, or obstructing a
peace officer, in violation of California Penal Code
section 148(a)(1). The district court stayed proceedings in
the civil action while the criminal prosecution was pending.
The criminal case proceeded to a jury trial. The jury was
instructed that to find Lemos guilty, it needed to find beyond

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LEMOS V. COUNTY OF S ONOMA 7
a reasonable doubt that Holton was “lawfully performing or
attempting to perform his duties as a peace officer,” that
Lemos “knew, or reasonably should have known, that [he]
was a peace officer performing or attempting to perform his
duties,” and that she “willfully resisted, obstructed, or
delayed [him] in the performance or attempted performance
of those duties.” The jury was further instructed that “[a]
peace officer is not lawfully performing his or her duties if
he or she is unlawfully arresting or detaining someone or
using unreasonable or excessive force in his or her duties.”
The instructions stated that the jury could find Lemos
guilty based on any one of four acts: (1) if she “made
physical contact with [Holton] as he was trying to open the
truck door”; (2) if she “placed herself between” Holton and
Labruzzi; (3) if she “blocked [Holton] from opening the
truck door and seeing or speaking with” Labruzzi; or (4) if
she “pulled away when [Holton] attempted to grab her” (just
before he tackled her). Although the instructions required the
jury to agree unanimously on which act Lemos committed,
the verdict form did not require the jury to identify a specific
act. The jury found Lemos guilty.
Once the criminal proceedings concluded, the district
court lifted its stay. The parties agreed that the defendants
would file a motion for summary judgment limited to the
argument that Lemos’s action was barred by Heck.
The district court granted summary judgment to the
defendants. The court reasoned that “[g]iven [Lemos’s] and
her cohorts’ continuous screaming and provoking,” there
was “no temporal or spatial distinction or other separation
between the conduct for which Lemos was convicted, by a
jury, and the conduct which forms the basis of her Section
1983 claim.” The court concluded that “Holton’s actions . . .
form[ed] one uninterrupted interaction and the jury’s finding

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8 LEMOS V. COUNTY OF S ONOMA
that he did not use excessive force would be inconsistent
with a Section 1983 claim based on an event from that same
encounter.”
A divided three-judge panel of this court affirmed.
Lemos v. County of Sonoma, 5 F.4th 979 (9th Cir. 2021); see
id. at 987 (Berzon, J., dissenting). We voted to rehear the
case en banc. Lemos v. County of Sonoma, 22 F.4th 1179
(9th Cir. 2022). We review the district court’s grant of
summary judgment de novo. Stephens v. Union Pac. R.R.
Co., 935 F.3d 852, 854 (9th Cir. 2019).
We begin by reviewing the preclusion doctrine
established in Heck. In that case, the plaintiff had been
convicted of voluntary manslaughter and, while serving his
sentence, brought a section 1983 action against prosecutors
and a police officer who had allegedly engaged in unlawful
acts that resulted in his conviction. 512 U.S. at 478–79. The
Supreme Court held that the action could not proceed
because “civil tort actions are not appropriate vehicles for
challenging the validity of outstanding criminal judgments.”
Id. at 486. Under Heck, a section 1983 action is barred if
success in the action would “necessarily require the plaintiff
to prove the unlawfulness of his conviction or confinement.”
Id. But if a criminal conviction has already been reversed,
expunged, or otherwise set aside, then a section 1983 action
may proceed. Id. at 486–87.
Heck thus requires us to “consider whether a judgment
in favor of the plaintiff would necessarily imply the
invalidity of his conviction or sentence; if it would, the
complaint must be dismissed unless the plaintiff can
demonstrate that the conviction or sentence has already been
invalidated.” 512 U.S. at 487. By contrast, if “the plaintiff’s
action, even if successful, will not demonstrate the invalidity
of any outstanding criminal judgment against the plaintiff,

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LEMOS V. COUNTY OF S ONOMA 9
the action should be allowed to proceed, in the absence of
some other bar to the suit.” Id. (footnote omitted).
The Supreme Court has since emphasized that it was
“careful in Heck to stress the importance of the term
‘necessarily,’” as, for example, when the Court
“acknowledged that an inmate could bring a challenge to the
lawfulness of a search pursuant to § 1983 in the first
instance, even if the search revealed evidence used to convict
the inmate at trial, because success on the merits would not
‘necessarily imply that the plaintiff’s conviction was
unlawful.’” Nelson v. Campbell, 541 U.S. 637, 647 (2004)
(quoting Heck, 512 U.S. at 487 n.7). “To hold otherwise,”
the Court explained, “would have cut off potentially valid
damages actions as to which a plaintiff might never obtain
favorable termination—suits that could otherwise have gone
forward had the plaintiff not been convicted.” Id.
To decide whether success on a section 1983 claim
would necessarily imply the invalidity of a conviction, we
must determine which acts formed the basis for the
conviction. When the conviction is based on a guilty plea,
we look at the record to see which acts formed the basis for
the plea. See Smith v. City of Hemet, 394 F.3d 689, 696–97
(9th Cir. 2005) (en banc); Sanford v. Motts, 258 F.3d 1117,
1119–20 (9th Cir. 2001). We follow the same approach
when the conviction is based on a jury verdict. As several
other courts of appeals have recognized, a court must look at
the record of the criminal case—including the jury
instructions—to determine which facts the jury necessarily
found. See Harrigan v. Metro Dade Police Dep’t Station #4,
977 F.3d 1185, 1194 (11th Cir. 2020) (examining what “a
jury could have found” to determine that the “facts required
for [the plaintiff] to prove his § 1983 case do not necessarily
logically contradict the essential facts underlying [his]

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10 LEMOS V. COUNTY OF S ONOMA
convictions,” and concluding that “Heck does not bar the
§ 1983 action from proceeding” (internal quotation marks
omitted)); Lora-Pena v. FBI, 529 F.3d 503, 506 (3d Cir.
2008) (examining the jury instructions to conclude that “the
question of whether the officers used excessive force was not
put before the jury,” so the plaintiff’s criminal convictions
“would not be inconsistent with a holding that the officers,
during a lawful arrest, used excessive (or unlawful) force”);
see also Barnes v. Wright, 449 F.3d 709, 716–17 (6th Cir.
2006). An action under section 1983 is barred if—but only
if—success in the action would undermine the jury’s
findings in a way that “would necessarily imply or
demonstrate that the plaintiff’s earlier conviction was
invalid.” Smith, 394 F.3d at 699.
This case involves a conviction for resisting, delaying, or
obstructing a peace officer, in violation of California Penal
Code section 148(a)(1). That offense has three elements:
“(1) the defendant willfully resisted, delayed, or obstructed
a peace officer, (2) when the officer was engaged in the
performance of his or her duties, and (3) the defendant knew
or reasonably should have known that the other person was
a peace officer engaged in the performance of his or her
duties.” Yount v. City of Sacramento, 183 P.3d 471, 479 (Cal.
2008) (quoting In re Muhammad C., 116 Cal. Rptr. 2d 21,
24 (Ct. App. 2002)). The second element is particularly
significant because California courts have held that an
officer who uses excessive force is acting unlawfully and
therefore is not engaged in the performance of his or her
duties. People v. White, 161 Cal. Rptr. 541, 544–45 (Ct. App.
1980); see In re Manuel G., 941 P.2d 880, 885 (Cal. 1997);
People v. Gonzalez, 800 P.2d 1159, 1178–79 (Cal. 1990).
For that reason, the jury at Lemos’s criminal trial was
instructed that “[a] peace officer is not lawfully performing

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LEMOS V. COUNTY OF S ONOMA 11
his or her duties if he or she is . . . using unreasonable or
excessive force.”
It follows that Heck would bar Lemos from bringing an
excessive-force claim under section 1983 if that claim were
based on force used during the conduct that was the basis for
her section 148(a)(1) conviction. See Heck, 512 U.S. at 486
n.6. In that circumstance, to prevail in the section 1983
action, she would have to prove that Holton used excessive
force, thus “negat[ing] an element of the offense” of which
she was convicted. Id.; see McCann v. Neilsen, 466 F.3d 619,
621 (7th Cir. 2006) (holding that a claim is Heck-barred “if
specific factual allegations in the complaint are necessarily
inconsistent with the validity of the conviction”).
But, crucially, the jury was told that it could find Lemos
guilty based on any one of four acts she committed during
the course of her interaction with Holton: making physical
contact with Holton at the door to the truck; placing herself
between Holton and Labruzzi; blocking Holton from
opening the truck door; and pulling away from Holton when
he attempted to grab her. Because the jury returned a general
verdict, we do not know which act it thought constituted an
offense. Although any one of the four acts could be the basis
for the guilty verdict, Lemos’s section 1983 action is based
on an allegation that Holton used excessive force during only
the last one; at oral argument, Lemos expressly stated that
she understood that act to refer to her pulling away from
Holton just before he tackled her, and she disavowed any
claim based on force used by Holton earlier in their
encounter. There would be no contradiction in concluding
(as the criminal jury may have) that Lemos obstructed
Holton during the lawful performance of his duties by, say,
blocking him from opening the truck door while also
concluding (as Lemos alleges in this action) that Holton used

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12 LEMOS V. COUNTY OF S ONOMA
excessive force when he tackled her five minutes later. Thus,
if Lemos were to prevail in her civil action, it would not
necessarily mean that her conviction was invalid. The action
is therefore not barred by Heck.
In reaching a contrary conclusion, the district court
reasoned that Holton’s acts “form[ed] one uninterrupted
interaction” and that there was “no temporal or spatial
distinction or other separation between the conduct for
which Lemos was convicted . . . and the conduct which
forms the basis of her Section 1983 claim.” Along similar
lines, Holton argues that Lemos’s conviction was “based on
the entire incident as a whole” and that Lemos could not have
been convicted “if any part of Deputy Holton’s use of force
during the incident was excessive.” If that were true, it would
not matter which of the four predicate acts the jury agreed
on because a finding that Holton used excessive force would
invalidate her conviction.
That reasoning, however, cannot be reconciled with the
jury instructions in Lemos’s underlying criminal case or with
California law. As we have explained, the instructions
allowed the jury to find Lemos guilty based on any of the
four charged acts. And while the instructions specified that
“[a] peace officer is not lawfully performing his or her duties
if he or she is . . . using unreasonable or excessive force,” the
use of the word “is”—in the present tense—is significant.
Under the instructions, an officer could have been lawfully
performing his duties at time A even if, at some later time B,
he used excessive force. So if the jury found that Lemos
resisted Holton at the truck and that Holton was acting
lawfully at the time, it should have found her guilty, even if
it also believed that Holton used excessive force when he
tackled her five minutes later. Lemos’s success in the section

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LEMOS V. COUNTY OF S ONOMA 13
1983 action thus would not necessarily contradict the
verdict.
Holton’s understanding of the instructions and the
verdict makes particularly little sense in light of the
California Supreme Court’s decision in Yount. That case
involved a section 1983 claim by an arrestee who had
resisted being handcuffed by struggling with the officers and
kicking them. Yount, 183 P.3d at 475–76. Though the
officers eventually managed to restrain him, Yount
continued to resist, whereupon one officer, intending to tase
Yount, accidentally shot him. Id. at 476. Yount pleaded no
contest to a violation of section 148(a)(1) and then sued the
officer who shot him. Id. at 476–77. The California Supreme
Court held that the action was not barred by Heck because a
finding that the officer’s use of deadly force was excessive
would not necessarily be inconsistent with his conviction. Id.
at 481–82. The court explained that “[t]he subsequent use of
excessive force [did] not negate the lawfulness of the initial
arrest attempt, or negate the unlawfulness of the criminal
defendant’s attempt to resist it.” Id. at 482 (quoting Jones v.
Marcum, 197 F. Supp. 2d 991, 1005 n.9 (S.D. Ohio 2002)).
Even though the civil action and the criminal conviction both
arose from “one continuous chain of events, two isolated
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. (quoting Jones, 197 F. Supp. 2d at 1005 n.9).
More recently, in People v. Williams, 236 Cal. Rptr. 3d
587 (Ct. App. 2018), the California Court of Appeal applied
Yount’s reasoning and explained that “the validity of a
conviction of an offense involving a peace officer engaged
in the performance of his or her duties depends on whether
‘the officer was acting lawfully at the time the offense

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14 LEMOS V. COUNTY OF S ONOMA
against the officer was committed.’” Id. at 599 (quoting
Manuel G., 941 P.2d at 885). In other words, if the officer is
acting lawfully and the defendant resists him, the defendant
has violated section 148(a)(1). Whatever might happen later,
it cannot undo the violation: “The use of excessive force
after the completed section 148(a)(1) violation would not
invalidate the completed section 148(a)(1) violation.” Id. at
601. The jury instructions here reflected those principles.
Holton relies on a footnote in our decision in Smith, in
which we suggested a different approach to reviewing a jury
verdict in a section 148(a)(1) case. We observed that
“[w]here a defendant is charged with a single-act offense but
there are multiple acts involved each of which could serve as
the basis for a conviction, a jury does not determine which
specific act or acts form the basis for the conviction.” Smith,
394 F.3d at 699 n.5. So far, so good. But we went on to say
that “a jury’s verdict necessarily determines the lawfulness
of the officers’ actions throughout the whole course of the
defendant’s conduct, and any action alleging the use of
excessive force would ‘necessarily imply the invalidity of
his conviction.’” Id. (quoting Susag v. City of Lake Forest,
115 Cal. Rptr. 2d 269, 274 (Ct. App. 2002)). That statement
was dictum—Smith involved a guilty plea, not a jury
verdict—and it was decided before the California Supreme
Court decided Yount. See Hooper v. County of San Diego,
629 F.3d 1127, 1132 (9th Cir. 2011). As we have already
explained, applying Heck requires looking at the factual
basis for a conviction, regardless of whether that conviction
is based on a jury verdict or a guilty plea. And where, as here,
a jury is instructed that it may find a defendant guilty based
on one of several different events, then a guilty verdict does
not necessarily “determine[] the lawfulness of the officers’
actions” throughout the entire encounter. Smith, 394 F.3d at
699 n.5. We therefore disapprove of that statement in Smith.

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LEMOS V. COUNTY OF S ONOMA 15
As Holton points out, the relevant language from Smith
reappeared in Beets v. County of Los Angeles, 669 F.3d 1038
(9th Cir. 2012). But again, the statement was dictum.
Although Beets did involve a jury verdict, both the criminal
prosecution and the section 1983 action involved the same
event: Officers fatally shot a man who was driving a truck
toward them. Id. at 1040. The passenger in the truck was
convicted of aiding and abetting the driver’s assault on the
officers, and the parents of the deceased driver brought a
section 1983 claim, alleging that the officers used excessive
force. Id. at 1040–41. We held that Heck precluded the
section 1983 action because success would have necessarily
implied the invalidity of the passenger’s criminal conviction.
Id. at 1047–48. We explained that “there are not multiple
factual bases for [the passenger’s] conviction for aiding and
abetting in the assault.” Id. at 1045 (emphasis added). In
other words, the section 1983 action was predicated on the
same conduct that the criminal jury had already determined
was lawful. Id. at 1045, 1048. Although we disapprove of
Beets’s repetition of the Smith dictum, the reasoning of Beets
does not undermine our holding here. In this case, unlike in
Beets, the jury was instructed that multiple acts could serve
as the predicate for the criminal conviction, and we do not
know which the jury chose.
Because the district court erred in holding that Lemos’s
action was barred by Heck, we reverse the grant of summary
judgment to the defendants. We express no view on the
merits of Lemos’s claim or on any other defenses that the
defendants may assert. We leave those matters for the district
court to consider on remand.
REVERSED and REMANDED.

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16 LEMOS V. COUNTY OF S ONOMA
CALLAHAN, Circuit Judge, joined by LEE, Circuit Judge,
dissenting:
Like a wolf in sheep’s clothing, the majority opinion may
appear at first blush to simply dispense with the Heck
preclusion doctrine due to the unique factual scenario
presented, but something more troubling lingers beneath the
surface. The majority’s reasoning presupposes that an
uninterrupted interaction with no temporal or spatial break
between a § 1983 plaintiff’s unlawful conduct and an
officer’s alleged excessive force can be broken down into
distinct isolated events to avoid the application of the Heck
bar. In this way, the decision creates an escape hatch to
Heck.
The outcome, which reflects a misapprehension of
California criminal law, violates the very purposes cited by
the Supreme Court when it established the Heck preclusion
doctrine. Specifically, it undermines the strong policy
against the creation of two conflicting resolutions arising out
of a single transaction, and ignores the Supreme Court’s
concerns for finality and consistency between criminal and
civil judgments. See Heck v. Humphrey, 512 U.S. 477, 484
(1994); see also McDonough v. Smith, 139 S. Ct. 2149, 2157
(2019) (discussing the purposes underlying Heck). For these
reasons, I respectfully dissent and would affirm the district
court’s application of the Heck bar to Lemos’s § 1983 claim.
The majority’s analysis begins and ends with its parsing
of the jury instructions provided in Lemos’s criminal trial for
her violation of California Penal Code section 148(a)(1).
The majority recognizes that “Heck would bar Lemos from
bringing an excessive-force claim under section 1983 if that
claim were based on the same conduct as her section
148(a)(1) conviction.” That is because to prevail on her
§ 1983 claim, Lemos would have to prove that Deputy

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LEMOS V. COUNTY OF S ONOMA 17
Holton used excessive force, thereby negating an element of
the offense of which she was convicted1. Cal. Penal Code
§ 148(a)(1). “But,” the majority reasons, “crucially, the jury
was told that it could find Lemos guilty based on any one of
four acts she committed during the course of her interaction
with Holton.” Thus, the majority concludes that because
“we do not know which act” the jury convicted her on,
Lemos’s § 1983 action cannot be barred by Heck.
There are at least two problems with the majority’s
reasoning—first, it ignores California’s continuous course of
conduct rule, and second, under the facts presented, there
was no break between any of Lemos’s illegal acts and the
excessive force she alleges in her § 1983 complaint.
Under California’s continuous course of conduct rule,
Lemos’s conviction for violating section 148(a)(1)
necessarily includes all of the acts that comprise a
continuous or indivisible transaction. People v. McFarland,
376 P.2d 449, 455–56 (Cal. 1962). As we correctly
explained in our dissent in Smith v. City of Hemet:
The major considerations in determining
whether similar acts are part of the same
transaction are the amount of time elapsed
1 The majority “disapproves” of what it construes as dicta in Smith
(repeated later in Beets) which states that “a jury’s verdict necessarily
determines the lawfulness of the officers' actions throughout the whole
course of the defendant’s conduct, and any action alleging the use of
excessive force would ‘necessarily imply the invalidity of his
conviction.’” Smith v. City of Hemet, 394 F.3d 689, 699 n.5 (9th Cir.
2005) (en banc). I continue to think this language accurately reflects
California law and the spirit of Heck, but nevertheless this court remains
bound by California’s interpretation of what is required for a jury to
convict under section 148(a)(1).

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18 LEMOS V. COUNTY OF S ONOMA
between the discrete incidents, and whether
there was any break in the criminal activity.
See People v. Jefferson, 123 Cal.App.2d 219,
221, 266 P.2d 564 (1954) (holding that two
distinct acts of assault with a deadly weapon
taking place within a fifteen minute period
“were a part of the same incident, and they
could not reasonably be held to constitute two
separate offenses, each complete in itself, and
each of which would require a separate
charge”); People v. Mota, 115 Cal.App.3d
227, 233, 171 Cal.Rptr. 212 (1981).
394 F.3d 689, 709 (9th Cir. 2005) (en banc) (Silverman, J.,
dissenting). Applying those considerations, People v.
Moreno, 108 Cal. Rptr. 338, 342–43 (1973) held that two
instances of violating section 148 were two separate offenses
because thirty minutes elapsed between the two incidents
and “[i]n the intervening space of time the defendant had
completely calmed down, and ceased his criminal activity.”
By contrast, Lemos never cooperated with the officers—
rather, as the body camera footage presented to the jury
confirms, throughout the roughly seven minutes that elapsed
between Lemos’s first obstructive encounter with Deputy
Holton at the truck and the time of her eventual arrest, Lemos
resisted, obstructed, and delayed Deputy Holton in the
performance of his duties at every turn. There can be no
dispute regarding the facts here, but a narrative description
of the conduct simply cannot do it justice. Instead, the video
depicting what occurred from start to finish supports the
continuous nature of the interaction, which involved not just
Lemos but her mother (who was also convicted under
section 148(a)(1)) and Lemos’s two sisters.

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LEMOS V. COUNTY OF S ONOMA 19
It makes sense then why Lemos was charged and
convicted of just a single count of violating section
148(a)(1)—the continuous course of conduct rule bars the
state from prosecuting a defendant again for acts that were
part and parcel of the same continuous transaction, a rule
designed to protect criminal defendants. Again, our dissent
in Smith explained this well:
It is this rule that now prevents the State of
California from charging Smith anew for the
conduct occurring after he first refused to
take his hands out of his pockets. And again
for refusing to put his hands on his head. And
again for not turning around. And again for
not coming off the porch. And again for
refusing to submit to handcuffing. Smith was
charged and convicted of one count of
resisting an officer that necessarily
encompassed the entire sequence of events
leading up to his arrest. If, for whatever
reason, Smith wanted to waive the protection
of that rule and plead guilty to one identified
act, leaving himself open to possible
prosecution for acts that otherwise would be
dead letters, it was incumbent upon him to
say so.
394 F.3d at 709 (Silverman, J., dissenting). For that reason,
to paraphrase the California Supreme Court in Yount v. City
of Sacramento, 183 P.3d 471, 481 (Cal. 2008), “[i]t would
be anomalous to construe [Lemos’s] criminal conviction
broadly for criminal law purposes so as to shield [her] from
a new prosecution arising from these events but then, once
[she] had obtained the benefits…, to turn around and
construe the criminal conviction narrowly so as to permit

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20 LEMOS V. COUNTY OF S ONOMA
[her] to prosecute a section 1983 claim arising out of the
same transaction.” Id. (alterations added). The majority
opinion fails to appreciate California law on this issue and
thereby creates tension with this legal principle.
Of course, an allegation of excessive force by a police
officer is not barred by Heck if the alleged act is distinct
temporally or spatially from the factual basis for the section
148(a)(1) conviction, because such an allegation would not
“necessarily” imply the invalidity of the conviction. See
Beets v. Cnty. of Los Angeles, 669 F.3d 1038, 1042–43 (9th
Cir. 2012). But the court must determine whether there is a
legitimate analytical way to parse the individual’s
obstructive acts from the officer’s use of force. The majority
apparently concludes that the four acts identified in the jury
instructions provide all the court needs to make its Heck
determination.
For that reason, I believe some context is useful here.
Counsel admitted at en banc oral argument that the defense
requested this instruction because they had concerns about
whether their clients’ verbal conduct would be considered
resisting, obstructing, or delaying by the jury. Had the
prosecutor not agreed to satisfy defense counsel’s concerns,
perhaps this case would not be before us at all. And, as Yount
cautioned, it would “anomalous” to allow defense counsel to
use this jury instruction as a shield for criminal law purposes,
but as a sword to permit Lemos’s § 1983 claim to proceed.
Yount, 183 P.3d at 481.
Accordingly, the fact that the jury instructions offered
four acts which could form the basis for Lemos’s section
148(a)(1) conviction cannot alone be determinative of
whether the Heck bar applies. Under California law, the
question remains whether Lemos’s obstructive acts can be

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LEMOS V. COUNTY OF S ONOMA 21
separated, temporally or otherwise, from Deputy Holton’s
alleged excessive force. Here, they cannot.
The cases tend to fall into two categories: the first, where
the alleged excessive force occurs after the chain of events
underlying the section 148(a)(1) conviction2, such as in
Hooper v. Cnty. of San Diego, 629 F.3d 1127, 1134 (9th Cir.
2011) and Sanford v. Motts, 258 F.3d 1117, 1118 (9th Cir.
2001) (the Heck bar does not apply), and the second, where
the alleged excessive force occurs during the chain of events
underlying the section 148(a)(1) conviction, such as in Beets
and Sanders v. City of Pittsburg, 14 F.4th 968, 970 (9th Cir.
2021) (the Heck bar applies). Thus, if Lemos had been bitten
by a police dog after she had been arrested for violating
section 148(a)(1), for example, her conviction for resisting
an officer would not have barred her § 1983 lawsuit. But the
facts underlying Lemos’s conviction, including each of the
four acts listed in the jury instructions and Deputy Holton’s
alleged excessive force, all occurred during a single
indivisible chain of events before her arrest, and therefore
her § 1983 is barred by Heck.
This distinction is reflected in Sanders, a decision
published just months after the underlying opinion in Lemos
and absent from discussion in the majority opinion. In
Sanders, the defendant fled from police after being spotted
in a stolen car. 14 F.4th at 970. The defendant led police on
a car chase and then a foot chase. Id. When an officer caught
up to the defendant, he resisted. Id. The officer then
commanded a police dog to bite the defendant’s leg, which
2 Even Yount, which the majority heavily relies upon, falls into this
second category, as it involved an officer’s “subsequent” accidental use
of deadly force after Yount had been handcuffed. See Yount, 183 P.3d
at 475–76, 482.

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22 LEMOS V. COUNTY OF S ONOMA
it did. Id. The defendant was finally arrested and charged
with a violation of section 148(a)(1). Id. The defendant
pleaded no contest to the charge and stipulated that the
factual basis for his plea was “based on the preliminary
hearing transcript,” which described multiple instances of
the defendant resisting. Id. Meanwhile, the defendant filed
a § 1983 claim against the officer for excessive force in
using the police dog. Id.
Relying on Yount, we rejected the defendant’s argument
that his § 1983 claim was not Heck barred, finding that it
could not separate out which of the defendant’s several
obstructive acts led to his conviction since all of them did.
Id. at 972–73. Because the dog bite was part of the section
148(a)(1) conviction’s factual basis, it was necessarily
lawful for purposes of the Heck analysis. Id. at 972. While
Sanders involved a plea rather than a jury trial, its logic
applies with equal force here—we may not “slice up the
factual basis of a § 148(a)(1) conviction to avoid the Heck
bar.” Id.
* * *
“[U]nless one believes (as [the Supreme Court] do[es]
not) that a § 1983 action for damages must always and
everywhere be available,” the long-standing Heck preclusion
doctrine must not be interpreted in a manner that threatens
to swallow the rule. Spencer v. Kemna, 523 U.S. 1, 17
(1998).
Nevertheless, the majority engages in the “temporal hair-
splitting” cautioned against by courts time and again in
search of a distinct break between Lemos’s criminal act and
Deputy Holton’s alleged use of force where none
meaningfully exists. See Fetters v. Cnty. of Los Angeles, 196
Cal. Rptr. 3d 848, 861 (Cal. Ct. App. 2016). Because no

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LEMOS V. COUNTY OF S ONOMA 23
such break exists, Lemos could only have been convicted if
the jury found that Deputy Holton did not use excessive
force throughout the interaction, an element of the
conviction which the jury was instructed on. But Lemos can
only prevail on her § 1983 claim if she proves that Deputy
Holton did use excessive force during that same interaction.
Thus, allowing Lemos’s § 1983 action to proceed violates
the holding of Heck and creates conflicting resolutions
arising out of a single event.
Because the majority opinion “expand[s] opportunities
for collateral attack” on criminal convictions despite clear
Supreme Court guidance to the contrary, I respectfully
dissent. Heck, 512 U.S. at 484–85.

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