Yount

Plaintiff Steven Yount suffered injuries when Sacramento Police Officer Thomas Shram shot him in the left buttock as Shram and three other officers were trying to transport him to jail following his arrest for driving under the influence of alcohol (DUI). Just prior to the shooting, Yount, despite being in handcuffs and leg restraints, was straggling and threatening the officers. Officer Shram, intending to draw and fire his Taser gun in order to subdue Yount, mistakenly pulled out and discharged his pistol instead.

As a result of this incident, Yount pleaded no contest to violating Penal Code section 148, subdivision (a)(1) (resisting, delaying, or obstructing an officer in the performance of the officer’s duties). He then brought this action against the City of Sacramento and Officer Shram for damages arising from the violation of his civil rights under title 42 United States Code section 1983 (section 1983) and asserted a common law claim of battery as well.

Defendants argued that the section 1983 claim must be dismissed as an improper collateral attack on Yount’s criminal conviction under Heck v. Humphrey (1994) 512 U.S. 477 [ 129 L.Ed.2d 383 , 114 S.Ct. 2364 ]…

I concur in the judgment.

I agree with the majority that plaintiff Steven Yount may sue defendants under 42 United States Code section 1983 (section 1983) and for battery based on the claim that a police officer shot him while he was handcuffed and restrained. On this point the majority reasons: “[T]o the extent Yount’s section 1983 claim alleges simply that Officer Shrum’s use of deadly force was an unjustified and excessive response to Yount’s resistance, the claim is not barred. As defendants have conceded, the record at the Heck hearing [see Heck v. Humphrey (1994) 512 U.S. 477 [ 129 L.Ed.2d 383 , 114 S.Ct. 2364 ]] did not support the use of deadly force against Yount, nor did the criminal conviction in itself establish a justification for the use of deadly force. [Citations.] A claim alleging that Officer Shrum’s use of deadly force was not a reasonable response to Yount’s criminal acts of resistance does not ‘implicitly question the validity of [his] conviction’ for resisting the officers in this instance [citation] and thus is not barred by Heck.” (Maj. opn., ante, at pp. 898-899, fn. omitted; see also id. at p. 902 [applying the same reasoning to plaintiff’s claim for…

Mastagni, Holstedt, Amick, Miller, Johnsen & Uhrhammer and Christopher W. Miller for The Peace Officers Research Association of California Legal Defense Fund as Amicus Curie on behalf of Defendants and Respondents.

Meyers, Nave, Riback, Silver & Wilson and Alan M. Cohen for League of California Cities as Amicus Curie on behalf of Defendants and Respondents.

OPINION

BAXTER, J.

Plaintiff Steven Yount suffered injuries when Sacramento Police Officer Thomas Shrum shot him in the left buttock as Shrum and three other officers were trying to transport him to jail following his arrest for driving under the influence of alcohol (DUI). Just prior to the shooting, Yount, despite being in handcuffs and leg restraints, was struggling and threatening the officers. Officer Shrum, intending to draw and fire his Taser gun in order to subdue Yount, mistakenly pulled out and discharged his pistol instead.

As a result of this incident, Yount pleaded no contest to violating Penal Code section 148, subdivision (a)(1) (resisting, delaying, or obstructing an officer in the performance of the officer's duties). He then brought this action against the City of Sacramento and Officer Shrum for damages…