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Defendant Convicted of Resisting Arrest Cannot Sue for Excessive Force, Court of Appeal Rules


January 11, 2002
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Defendant Convicted of Resisting Arrest Cannot Sue for Excessive Force, Court of Appeal Rules

by staff writer, Metropolitan News-Enterprise (Los Angeles legal newspaper)

A defendant convicted of resisting a police officer cannot sue for violation of civil rights, battery, or related torts based on claims the officer used excessive force, the Fourth District Court of Appeal ruled yesterday.

Div. One affirmed a judgment rejecting Cory Susag's suit against 10 Orange County sheriff's deputies and various other defendants resulting from a 1998 fracas near the auto body shop operated by Susag 's family.

The incident occurred after Susag jumped into a car and tried to start it after a deputy had it hitched up to a tow truck. The vehicle had an expired registration.

Deputy Sheriff Christopher Thompson testified in support of his summary judgment motion that when he told Susag to exit the vehicle, Susag cursed him and accelerated the engine. After being pepper-sprayed, Susag cursed again, then went into the body shop's office, where he was arrested after a shoving match with deputies.

An Orange Superior Court jury found him guilty of misdemeanor resisting an officer in January 1999. Two months later, Susag and his father Richard, who claimed to have been assaulted by the deputies when they came in the office to arrest his son, filed suit for violation of federally protected civil rights, assault and battery, false imprisonment, and intentional infliction of emotional distress.

The Susags also claimed that Thompson was retaliating against them as a result of a 1997 incident at the body shop.

Orange Superior Court Judge Tam Nomoto Schumann ruled that Cory Susag' s conviction precluded his action. The judge also granted Thompson and five other deputies summary judgment on Richard Susag's claim on the ground that there was no evidence of physical contact.

Justice Judith McConnell, writing yesterday for Div. One, said the trial judge was correct.

McConnell cited a U.S. Supreme Court ruling holding that a plaintiff cannot maintain a civil rights action based on unlawful arrest or imprisonment if convicted of the underlying offense, unless the conviction has been reversed or set aside.

The justice rejected the contention that Thompson's use of the pepper spray was unrelated to the resistance of which he was convicted. The conviction, McConnell said, shifted the burden to Susag to "to provide evidence of excessive force that would not necessarily imply the invalidity of his conviction" and he didn't do it.

The justice went on to say that as a matter of public policy, Susag's conviction precludes his state tort claims as well.

McConnell analogized to a California Supreme Court decision barring a criminal defendant from suing for legal malpractice absent proof of actual innocence.

She reasoned:

"Permitting [the plaintiff] to pursue state tort claims notwithstanding a conviction under Penal Code section 148, subdivision (a) would potentially allow him to profit by his own wrongdoing. The lawfulness of the officers' conduct was established in the criminal proceeding, and a contrary result in the civil action would 'shock the public conscience, engender disrespect for courts and generally discredit the administration of justice'"

The case is Susag v. City of Lake Forest, D038608.




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